Mr K Foster v Sutura Therapeutics Ltd (in voluntary liquidation) and Dr E Wagena: 2405747/2023

EMPLOYMENT TRIBUNALS

Case No 2405747/2023

Between

Mr K FosterClaimant

Sutura Therapeutics Limited (in voluntary liquidation) (1) Dr E Wagena (2)Respondent

Before

Employment Judge Fearon

Mr Winspear (instructed by counsel) for claimant

Date 29 June 2025

JUDGMENT

[1]The first respondent’s response is struck out under Employment Tribunal Rule 37(1)(c) because the first respondent has not complied with the Tribunal Order made on 10 August 2023 and under Employment Tribunal Rule 37(1)(d) because the response and defence to the claim has not been actively pursued by the first respondent. Case Number: 2405747/2023

[1]The claimant’s complaints of disability discrimination are dismissed upon withdrawal by the claimant.

[2]The claims of automatically unfair dismissal (by reason of protected disclosures) and the claim of ‘ordinary’ unfair dismissal are not well founded and are dismissed.

[3]The claim of being subjected to detriments for making protected disclosures was not presented within the applicable time limit. It was reasonably practicable to do so. The claim of being subjected to detriments for making protected disclosures is therefore dismissed.

REASONS

[1]The claimant’s claim came before the Tribunal for a final hearing from 17 to 26 March 2025. By means of a claim form presented to the Tribunal on 10 May 2023 the claimant pursues claims of protected disclosure detriment and automatically unfair dismissal within these proceedings. The claim was initially brought against both respondents. The first respondent was the limited company which employed the claimant during the material time. The second respondent was employed by the first respondent, latterly as Chief Executive Officer (CEO).

[2]The claimant’s claims initially included complaints of disability discrimination. During the course of the final hearing those complaints were withdrawn. Hence, I have issued a judgment dismissing those complaints upon withdrawal.

[3]During the life of these Tribunal proceedings the first respondent entered into creditors’ voluntary liquidation. The first respondent’s defence to the claim was struck out by Employment Judge Fearon by a judgment dated 10 December 2024.The first respondent was not represented at the final hearing. Consequently, the claims which were pursued against the first respondent were undefended but were not withdrawn by the claimant. I was still required to determine those claims based on the evidence available to me so as to ensure that all extant complaints had been decided at the conclusion of these proceedings. (It is not the case that claims against the first respondent would succeed automatically by way of ‘default judgment’ (Rule 22 Employment Tribunals Rules of Procedure 2024.)) The claimant and the second respondent agreed a list of issues for determination by the Tribunal at the final hearing. The preamble to the agreed list of issues noted that the first respondent’s response was struck out and indicated that the contested issues (the claims pursued against the second respondent) were highlighted in yellow in the said list of issues. Those portions of the list of issues which were not highlighted yellow remained for determination by the Tribunal as uncontested/undefended claims against the first respondent.

[4]During the course of the final hearing the list of issues was further refined. As stated above, the claimant withdrew his claim of disability discrimination (which was only pursued against the first respondent). In addition, the protected disclosure detriments set out at paragraphs: 3.9.3; 3.9.4; 3.9.14; 3.9.18; and 3.9.22 were withdrawn. I have therefore refrained from making determinations in relation to those allegations.

[5]The list of issues set out five protected disclosures. Protected disclosure number four was not made to the second respondent and was therefore not explored with the second respondent’s witnesses during the hearing. However, it has not been formally withdrawn and so still remains for consideration. The remaining claims are therefore of protected disclosure detriment against both respondents and a claim of automatically unfair dismissal and ‘ordinary’ unfair dismissal pursued against the first respondent only (as it was the claimant’s former employer).

[6]For the purposes of the final hearing the Tribunal had regard to the contents of an agreed hearing bundle in PDF format. The hearing bundle consisted of 1456 PDF/electronic pages. The hearing bundle had been edited over time such that the paper/hard copy pagination did not match the PDF pagination. At the outset of the hearing it was decided that the parties would refer to the documents by PDF page number rather than the typed page number which appeared at the bottom of each page. These written reasons adopt the same approach. Numbers in square brackets are references to PDF page numbers within the hearing bundle unless otherwise indicated.

[7]The Tribunal read and had regard to those documents in the hearing bundle to which it was referred by the parties during the course of the hearing. In addition, the Tribunal received evidence from the following witnesses:a. The claimant, Dr Keith Foster. Co-founder of the first respondent. Chief Scientific Officer at the first respondent from 23 January 2020, Chief Technology Officer from 19 April 2022 until dismissal.

b. Heather Kelly, former Financial Controller of the first respondent from 16 July 2021 until 27 June 2022.

c. Dr Helen Foster, former Director of Translational Research at the first respondent from 8 March 2021 until 25 July 2022. (The claimant’s wife.)

d. Mark Beards. Co-founder of the first respondent. Former Chief Executive Officer of the first respondent from 1 June 2020 to 4 August 2021.

e. The second respondent, Dr Edwin Wagena. Chief Operations Officer at the first respondent from 1 May 2021 until 10 November 2021, Chief Executive Officer at the first respondent from 11 November 2021.

f. James Noble, Chairman of the first respondent’s Board of Directors from 24 February 2020. All of the witness provided written witness statements and all attended the hearing to confirm those witness statements as their evidence in chief. All were cross examined save for Mr Beards. Counsel for the second respondent had no cross examination for Mr Beards, although his evidence was not formally agreed by the second respondent.

[8]In deciding the case I also had the benefit of:a. An agreed written list of issues (as amended during the course of the hearing.)

b. Written and oral closing submissions on behalf of both parties.

c. A written chronology.

d. A written cast list amended on 17 March 2025.

Findings of Fact

[9]The claimant worked as an academic scientist at various universities from September 1990 until September 2020. In around October 2012 the claimant and two colleagues at the University of Reading invented and patented a therapy for delivery of gene medicines into human cells (hereafter referred to as “the Technology”). From October 2012 until October 2020 the claimant and his colleagues continued to develop the Technology at the University of Reading. The claimant and his colleagues took out various patents related to the Technology in 2015 and 2017.

[10]In around August 2019 the claimant and his colleagues took the decision to continue the research through a UK-based private company in order to attract the necessary investment to develop the Technology further. As a result, the claimant and Mr Beards founded the first respondent on 3 January 2020. It is common ground between parties that such biotech start-up companies have no trading revenue. They are dependent on funds from investors whilst they continue to develop a product and take it to market. A secure flow of investment funds is therefore vital to ensure the continued survival of the company before it can reap the financial rewards of the product once it is on the market.

[11]On 1 October 2020 the claimant commenced employment with the first respondent as Chief Scientific Officer (“CSO”). From October 2020 until April 2021 the first respondent operated with very little financial capital. It was essentially a company of two people. The claimant and Mr Beards were jointly responsible for all operational matters. Mr Beards was the only other employee, the Chief Executive Officer (“CEO”).

[12]The claimant had prepared a scientific strategy for investors based on which they committed to fund the company with £11m in Q1 of 2021, in two tranches. The first tranche of £4.5m was payable on closing and the second tranche of £6.5 was conditional on reaching certain milestones. Completion of the first tranche occurred on 9 March 2021 and £4.4 million was put into the business. Once this first round of investment funding was secured the business operations could be expanded to employ seven additional staff and two consultants. The first respondent identified office and laboratory premises in Alderley Park, Cheshire.

[13]The claimant and Mr Beards put together a business plan in February 2021 [681]. At that time the claimant claimed that the Technology had been validated through pre-clinical trials and the claimant had a ‘lead candidate’ which was viewed as the best prospective compound. During the hearing this was disputed by the second respondent on the basis that mouse deaths meant that the drug was unsafe and therefore could not be considered to be a ‘lead candidate.’ The claimant’s position was that when the product was first trialled there were difficulties in dissolving it and this resulted in the mouse deaths. Once it was modified to make it safely soluble there were no mouse deaths. He maintained that, whilst the method of dissolving the compound had changed, the active drug was the same and this was still the lead candidate on which the business plan was based and the investor funding was secured. One of the goals of the funding was to establish GMP manufacturing facilities for clinical testing so that it could be scaled up.

[14]The Tribunal heard evidence that the lead investor for the first respondent was a company called Elevat3 (hereafter “Elevate”). This was represented by Mr Hanke. Understandably, as representative of a major investor, Mr Hanke would wish to have significant input into the respondent’s business decisions in order to safeguard Elevate’s investment.

[15]Mr Noble, Chair of the Board, also invested £100,00 on the basis of the assurance that there was a lead candidate drug which could be developed further.

[16]The claimant’s wife Helen Foster also helped to set up the company. Her role was remote. She was not lab based. She was in project management. Her official title was “Senior Scientist DMD Research.”

[17]In July 2021 Heather Kelly was hired as Financial Controller and Chief of Staff for the first respondent. Her goal was to professionalise the financial processes of the company with the aim of having three years of audited accounts so they would be able to list on the NY Stock Exchange. She says that she was not provided with a job description but was asked to write her own by the second respondent. She sent it to him but received no response. Regulation of animal testing.

[18]The first respondent’s business model involved the use of laboratories to conduct animal testing for research and drug development purposes. The claimant says that the company was developing novel gene medicines called ‘Peptigos.’ In order to test safety and efficacy in humans, animal testing on mice was required.

[19]To perform the testing on mice the company required a Project Programme Licence (“PPL”) which would be issued by the Home Office pursuant to the Animals (Scientific Procedure) Act 1986 (“the Act”). The PPL itself is granted to one individual who is then legally responsible for authorising all testing conducted on the licensee’s premises and for ensuring that standard conditions are met. The same individual is responsible for reporting any breaches of the conditions to the Home Office via a notification form. The notification form must include details of how it is proposed that similar breaches will be avoided in future. The claimant understood that failure to act within the terms of the licence by the licensee is a criminal offence which could be punished by up to two years’ imprisonment.

[20]On 8 October 2021 the claimant applied for and was granted a PPL [758- 823]. The licence was for carrying out the work at the first respondent’s premises at Alderley Park and also at the University of Cambridge.

[21]The claimant directed me to consider the protocol table which was part of the PPL [766]. This refers to three separate protocols. Protocol Number 1 covers the breeding and maintenance of mutant and genetically modified mice with mild phenotypes. Number 2 covers the delivery of gene medicines. Number 3 covered the delivery of gene therapy reagents via surgical systemic administration. Number 1 referred to a maximum of 2000 animals, number 2 to 1750 animals and number 3 to a maximum of 250 animals. The PPL covered processes in protocols 1, 2 and 3. In layman’s terms, protocol 1 involved the breeding of genetically modified mice on which the product could be tested. This was a regulated procedure. Protocol 2 involved the experimental testing of the product on the mice which had been bred for that purpose. Protocol 3 did not occur during the period with which the Tribunal was concerned. There were regulatory requirements involved at each stage/protocol of the licence.

[22]The Act required that other relevant licences be obtained in order for the respondents to carry out the necessary testing. It was the PPL, held in the claimant’s name, which was the fundamental licence for the purposes of the protected disclosure case before the Tribunal.

[23]As set out above, on 8 October 2021 the claimant applied for (and was granted) a Home Office licence for the first respondent to conduct animal testing on its premises. There are actually three licences which are required in order to conduct research on an animal under the Act. These are: the Establishment Licence (“PEL”) which is for the place at which the work is carried out. A second licence is the Personal Licence (“PIL”) for each person carrying out procedures on animals. The third is a Project Licence (“PPL”) for the programme of work itself (see above).

[24]The PEL is required for any establishment where ‘regulated procedures’ are carried out. This includes the establishments that breed and supply laboratory animals. A ‘regulated procedure’ is any experimental or other scientific procedure applied to a protected animal which can cause pain, suffering, distress or lasting harm. The definition includes the breeding of animals with genetic defects.

[25]The PIL is specific to the individual carrying out regulated animal research procedures. The PIL contains information such as the types of procedures that the individual can conduct and the species of animals that can be used.

[26]The PPL specifies the work that can be conducted within the project, specific procedures that will be conducted, the scientific rationale why animals must be used and the number and species of animals being used. The first respondent’s PPL was held by the claimant and was within the hearing bundle [758-823].

[27]The claimant became the project licence holder “PPL.” He was the PPL holder from October 2021 until 13 September 2022. This was a personal responsibility. As licence holder he had certain duties which were non - delegable. If there were breaches of the licence, he would be held personally responsible and could be held criminally responsible under the legislation. Hence, it was a matter of particular concern to the claimant to ensure full compliance with the terms of the legislation and the Home Office licence. He had an interest in compliance from a company perspective but also from a personal perspective. He could get assistance from others in doing some of the work needed to comply with the PPL but he would ultimately be held responsible for breaches of the PPL, irrespective of whether he was actually directly involved with the material events. Part of the claimant’s responsibilities as PPL holder was to ensure that the reporting conditions were complied with. If specified constraints were breached, a report to the Secretary of State had to be made as soon as possible.

[28]The original genetically modified mice for use in the research were produced by the University of Leiden and delivered to the first respondent. As the first respondent did not have a PEL, the claimant decided that breeding of the mice (in order to get a colony of a useable size) would be done by Agenda Life Sciences in Cambridge (“Agenda”). Mr Ben Acton was the Director for Regulatory Sciences at Agenda Life Sciences. He also had regulatory responsibilities which Agenda had to comply with as the providers of the mice for testing purposes.

[29]Mr Amar Rahi was appointed as Project Director (Research and Development) at the first respondent. He had responsibility for the mice that were being bred. In addition, during the final hearing, the parties referred to Mr Wouter Eilers who had been appointed as Principal Scientist at the first respondent. The first respondent: organisation and staff

[30]The claimant agreed during cross examination that the second respondent was appointed as the first respondent’s COO (Chief Operating Officer) in May 2021. Prior to his employment with the first respondent, the second respondent had done some work for the claimant, effectively on a consultancy basis. For example, in 2019 he was asked to write an abbreviated drug development plan.

[31]The claimant also joined the first respondent’s Board of Directors during 2021.

[32]On 4 August 2021 Mr Beards was dismissed/resigned as the first respondent’s Chief Executive Officer. The claimant was installed as a caretaker CEO and managed the operations during this period until a replacement could be identified. The claimant became a member of the Board of Directors of the first respondent at around this time. There was a vacancy for the substantive post of CEO for the first respondent.

[33]In October 2021 the claimant contacted the second respondent to confirm that he had been successful in his application for the role of CEO with the first respondent. The claimant alleges that upon being told that he had got the job, Dr Wagena said to the claimant, “you will not like me now.”

[34]On 1 November 2021 the second respondent was formally appointed as the first respondent’s new CEO. On the same day Mrs Foster’s job title was changed to Director of Translational Studies. This was a promotion. She would continue to work remotely so that she could care for her daughter. She would be responsible for overseeing all the research projects that were taking place in the first respondent’s laboratory. She wrote the research proposals, authorised the work, verified the data, and generally oversaw all the project work. In her evidence to the Tribunal she expressed the view that, over time, she came to feel that she was being excluded from her role by the second respondent and was also being ‘set up to fail.’ The first round of breeding

[35]On or about 8 December 2021 the first respondent received delivery of a small number of mice. These were genetically modified animals from Leiden. The original mice were to be bred to obtain a large enough colony to begin testing the Technology. The claimant indicated that he would usually maintain 20 females and 10 males. As the mice were genetically modified, the breeding of said mice constituted a procedure which was covered by the PPL at Protocol 1. It therefore needed to be appropriately authorised.

[36]In December 2021 the claimant created an indicated breeding timeline which suggested when each round of breeding would be likely to take place in order to get to the right number of mice for Protocol 2 purposes [828]. He was aware of the number of original mice and how many mice were needed to progress to Protocol 2. He evidently knew how many rounds of breeding were likely to be necessary to get to the required size of colony. Without any further communications from other people, he would be aware of the likely timing of the subsequent rounds of breeding if the process continued as anticipated. Mr Eilers and Mrs Foster would have a role in the interactions between the first respondent and Agenda. Colony management would be carried out by Agenda but with regular communications with the first respondent if there were breeding or health concerns. The ‘MCMS’ system was supposed to allow the first respondent to view all animals live ‘on the system’ to monitor them and look at health concerns etc [832-835].

[37]The claimant authorised a first round of breeding on 21 December 2021. It was anticipated that two rounds of breeding would be required in order to get the colony to the required size. Given the gestational period (3 weeks) and the anticipated weaning and sexing at 4 weeks of age, each round of breeding was likely to take 7 weeks. It could be predicted that the first round of breeding would be complete at around 31 January 2022.

[38]There was a dispute between the parties as to the specific breeding authorisation that was required by the legislation. The claimant’s case was that, under the terms of the PPL, he had to specifically authorise each and every round of breeding. Therefore, he would have to specifically authorise a minimum of two rounds of breeding before there would be sufficient mice to start experiments under Protocol 2. He maintained that he had to provide that separate authorisation for the round of breeding before it commenced. His initial authorisation of the first round of breeding would not be sufficient to authorise all of the intended rounds of breeding under the timeline that he had drafted. The intended breeding programme would necessitate multiple, separate acts of authorisation by the claimant.

[39]The second respondent’s view was that once the claimant had authorised the first round of breeding at Protocol 1, he did not need to separately authorise the second round of breeding in order to comply with the requirements of the PPL. His view was that the first authorisation by the claimant covered the whole of the anticipated breeding programme that was required to get to the Protocol 2 stage.

[40]The claimant maintains that he never authorised a second round of breeding, only that initial round of breeding which involved the original mice which were delivered from Leiden. This is the crux of the problem from the claimant’s point of view. Irrespective of any changes to his substantive role (from CSO to CTO), his position as the holder of the PPL remained unchanged. He understood that his statutory obligations continued irrespective of any change to his job title. Whilst he might not need to correspond with team members as CTO, he thought he still needed to correspond with them in order to be kept aware of the progress of the colony and to discharge his authorisation and monitoring responsibilities as the PPL holder. From the claimant’s perspective, any limitations on contact imposed by the second respondent had to be overridden in order to ensure compliance with the terms of the PPL. The claimant therefore maintained that the second respondent should not have put him in a position whereby he was practically prevented from discharging his duties under the PPL. This was not a matter of commercial business decision making. It was a matter of regulatory compliance for which the claimant was personally responsible and in relation to which he could be held criminally liable. The claimant maintained that, as no further authorisation to operate under the PPL had been granted by him, all further rounds of breeding and experimentation should have stopped.

[41]The Tribunal is not in a position to assess which of the parties’ interpretations of the required authorisation for breeding is the correct one in law. For the purposes of the protected disclosure claim it is not necessary for the Tribunal to decide what the actual requirements of the Act were in order for the claimant to comply with the PPL requirements. Rather, the Tribunal will have to consider what the claimant believed about the disclosures he made and whether those beliefs were reasonable within the statutory and case law framework for protected disclosure cases.

[42]When the claimant gave evidence about this issue, he was adamant that separate authorisation was required for each round of breeding. This appeared to be a genuinely held belief although it was not immediately apparent from the contemporaneous documents. Whilst it was the way the claimant put his case at the final hearing, it was not immediately apparent that this was what he was saying consistently throughout the relevant period of time. I also accept that the second respondent genuinely did not think that multiple authorisations for breeding were required. One authorisation would cover the breeding programme from the second respondent’s point of view. To a lay person this seems to be a reasonable interpretation of the regulatory requirements. If the claimant had set out the anticipated number of rounds of breeding which were required, the likely timing of those rounds of breeding, the final number of mice required and the justification of the need to breed in order to get to Protocol 2, then it is not clear what extra benefit there was to the claimant repeatedly authorising the same procedure for the same reason. The justification for the Protocol 1 procedure (breeding) would be the same on each occasion. The second respondent also took the view that, if the claimant genuinely believed that separate authorisation for each round was required, then he would have contacted the relevant people to authorise the second and third rounds of breeding or otherwise enquire about the size of the colony at each stage. If he did not do so, the second respondent argues, this is because the claimant knew all along that the first authorisation would cover the entire breeding programme under Protocol 1 and that, without further authorisation from him, the mouse colony would reach the required size to begin work under Protocol 2.

[43]The claimant maintains that Mr Rahi and Dr Eilers knew that he should have been kept updated as to what was going on with the mouse colony. He relies on [357] as evidence of this as it indicates that during the claimant’s temporary absence they were to make decisions on animal welfare issues. Likewise, on 23 February 2022 the claimant delegated practical responsibility for monitoring the welfare of the colony to Mr Eilers and Mr Rahi whilst he was absent from work [862]. From the beginning of March 2022 Mr Rahi was carrying out the role of colony manager for the first respondent with Mr Eilers acting as administrator. There is some suggestion that at that time the claimant was keen for them to eventually take over as PPL holder.

[44]Over the period from December 2021 until January 2022 it is the claimant’s case that the second respondent unjustifiably attempted to restrict the remit of the claimant’s role. The claimant asserts that the second respondent repeatedly and falsely accused him of being controlling, overbearing and generally inappropriate towards his fellow employees. The claimant’s case is that Dr Wagena made it known that the claimant was purely an academic and not capable of running a business or taking the company’s product to market.

[45]The claimant says that the second respondent told members of staff that he believed that the data that had attracted the financial investment in the company was fabricated. The claimant alleges that on 13 December 2021, during a meeting, the second respondent falsely accused him of defrauding the first respondent’s investors and that, if he genuinely believed that the claimant was actively misleading the investors, he had a duty to return the funds and cease business operations immediately. This was disputed by the second respondent during the course of these proceedings and it was pointed out that there was no contemporaneous documentary record to substantiate this allegation. However, it is apparent to the Tribunal that the documents in this case are far from complete. The claimant was excluded from the company’s systems at a relatively early stage and has therefore not been able to do a full search of the documents. Furthermore, as the company has since gone into liquidation and has not played an active part in these proceedings, the first respondent has not provided full disclosure of its documents. The documentary record which has been provided to the Tribunal is clearly fragmented. The second respondent has, apparently, not retained access to all of the first respondent’s documents. Much of the disclosure of evidence in this case has actually been achieved by way of the claimant making a Data Subject Access Request (“DSAR.”)

[46]On 21 December 2021 the first respondent’s breeding programme was initiated by Helen Foster. The claimant was copied into correspondence regarding that breeding programme.

[47]The tone of some of the email correspondence between the claimant and the second respondent clearly indicates that they were very different personalities who would not naturally work well with each other. The claimant’s background was as a research scientist and academic. He apparently prized attention to detail and was persistent in pursuing what he considered to be the correct approach. By contrast, the second respondent was more of a businessman. His focus was on the commercial progress of the company and ensuring that the scientific start up could become a successful commercial operation. He was less focussed on detail and more focused on commercial matters and the ‘bigger picture’ for the first respondent. In a manner of speaking, the two men spoke a different language from each other. The second respondent clearly struggled to get the claimant to move on from issues where the claimant felt that matters were not resolved (or resolved to his satisfaction.) This would have made the claimant difficult to manage from the second respondent’s point of view. The claimant’s approach to business could, if left unchecked, form an impediment to the commercial success of the company. On the other hand, Dr Wagena was not a scientific specialist in the product which the company was developing. Nor was he a specialist in the statutory and regulatory framework within which the company had to operate. The claimant may well have had a better understanding of what was (and was not) legally permissible in the development of the Technology. This meant that the stage was set for conflict from an early stage. The claimant would be convinced that he was the person who understood what was legally permissible as part of the research process, whereas Dr Wagena would have a tendency to view the claimant’s interventions as an unwarranted brake on his commercial management of the company. Both men may have had a legitimate basis for his view of the other. The claimant may genuinely have believed that he had no choice but to intervene when he saw that something was (from his point of view) going wrong. At the same time, he may have struggled to keep his eye on the bigger picture, commercially speaking. This may well have made it difficult for Dr Wagena to operate effectively as CEO.

[48]By way of example, there was a series of emails in the hearing bundle [341-343] which demonstrate the two men’s differing approaches. The claimant appears to want to ensure that an organogram is completely accurate and corrected to reflect his understanding the organisation. Whilst Dr Wagena engages in this discussion up to a point, it is clear that he starts to lose patience with the claimant when the claimant refuses to move on from the issue. Hence, he communicated to Mr Noble [341] that he was not going to reply to the claimant’s most recent email because he felt that continuing the email exchange was not very productive. He clearly felt that the claimant was a block on the development of the company and an impediment to proper team work. He felt that it disrupted the team and that a formal change to the claimant’s title/role was required in order to resolve the problem. On the other hand, the claimant was particularly invested in the company as it was based on his original research. He understandably felt a degree of ownership over the company and was perhaps a little reluctant to relinquish control to the extent required for the CEO to manage the company independently. Mrs Kelly

[49]Heather Kelly gave evidence that, on 18 January 2022, there was a meeting about the company’s structure. There was apparently a heated exchange between the claimant and the second respondent. The claimant apologised for ‘losing his cool’ the following morning. At the same time, Mrs Foster was having difficulties at work and so Heather Kelly spoke to the external HR consultant about it. Following receipt of the HR advice Mrs Kelly spoke to the second respondent on 20 January 2022. She recorded a note in her diary and reflected on his approach to leading the business. Apparently, he said that he was deliberately non-consensual. She found him to be aggressive during the conversation. She remarked on the huge personality/power clash between the claimant and the second respondent. Shortly afterwards, she was told not to contact HR about anything. She remarked that the second respondent said on more than one occasion: “I am Sutura.”

[50]Whilst the Tribunal did not see the original copy of Mrs Kelly’s diary, I have no reason to believe that her account of what she wrote in the diary is untrue. She gave evidence in a straightforward manner and clearly gave her own views about the characters of the claimant and the second respondent. I accept that these views were genuinely held by Mrs Kelly. Of course, I appreciate that they are just that, the witness’s own views. I also appreciate that the evidence she gives is incomplete and that she has selected which parts of the diary to quote in her evidence to the Tribunal. Her evidence cannot be viewed as entirely impartial or balanced in such circumstances. It is influenced by her own opinions of the two men concerned. However, it does still carry evidential weight in assisting the Tribunal to understand the way the events unfolded within the company and in showing that the claimant’s unfavourable views of the second respondent were, at least to some extent, shared by others. In the same way, the contemporaneous documents from other staff within the company and at Agenda (referred to below) show that other people’s views of the claimant were not wholly positive either. Whether the second respondent exacerbated the problems or not, it is apparent from the documents that other individuals did have some genuine problems and concerns in relation to working with the claimant. That was not wholly concocted by the second respondent.

[51]By 4 February 2022 Dr Wagena was suggesting to Mr Noble that the claimant should move from being CSO to CTO (“Chief Technical Officer”). He expressed the view that this fitted better with the claimant’s current expertise and would also, “help clarify/manage expectations in the company.” [340] Whilst the second respondent sought to suggest that this was a Board decision I am prepared to accept that he was the driving force behind this change. He felt that the claimant did not have the right experience and skillset to manage this stage of the company’s development. Hence, he said that Liesbeth and Fabio would be in the driving seat to get the lead compound through the lead optimisation/lead selection phase and pre-clinical development in the clinic [335].

[52]It is clear that, even at this relatively early stage, the claimant and second respondent were struggling to get along and work together effectively. The working relationship was fraught with difficulty. The claimant referred to it as a ‘boxing match’ during cross examination. The claimant felt that the second respondent was trying to get him out of the company altogether when he was demoted from CSO to CTO. The claimant suggested that the second respondent unilaterally decided to demote him from CSO to CTO. He now accepts that this decision had the support of the Board but at the time he felt strongly that the second respondent was acting alone.

[53]By February 2022 the claimant had already complained about the second respondent to HR. The claimant maintains that he was actually the most senior of 6- 7 people who complained. He was the only employee senior enough to get the relevant HR advice. He contacted Alex Smith who was the Director for Values who apparently collated the complaints and discussed them. The second respondent felt that this was in breach of policy and that the claimant should have approached the second respondent directly as he was the claimant’s line manager.

[54]In February 2022 the claimant says he discovered that the second respondent had been providing inaccurate and misleading reports to the first respondent’s Board of Directors about the claimant’s performance as CSO. This view seems to be based on the email correspondence which he may only have seen after the events in question. For example, on 6 February the second respondent wrote to Mr Noble, “I want to let you know I’m not going to reply to Keith’s email. Continuing this email exchange is not very productive. Because Keith continues to interfere with what the company needs to do to achieve its objectives, it is obvious we do need to address it. I will follow up with him this week (I have meetings scheduled with him to discuss his role and responsibilities) and continue to try and get him to work with the team instead of against it. I will however make very clear that I will not accept that he deliberately keeps twisting people’s words and makes false statements (for example about what has been agreed with ***. Unfortunately, I don’t think we will be able to change his current disruptive behaviour without a formal change in his title/role.”

[55]The claimant did not see this email until the process of Employment Tribunal disclosure was completed. He views this as the second respondent deliberately portraying him as invidious and trying to manage him out of the company. On the other hand, it could well be that, as set out above, the two men had different approaches to communication and to the priorities and requirements of the company. This may have been the second respondent’s genuine view of the claimant, rather than some sort of concerted action to get the claimant out of his job.

[56]In his witness statement the claimant indicated that he ‘surmised’ that the second respondent had for some time been providing inaccurate and misleading reports to the Board about the claimant’s performance [paragraph 29]. The claimant struggled to point to specific evidence of such ‘misleading reports’ within the hearing bundle.

[57]Emails in the bundle show that the second respondent was consulting HR by 7 February to check the wording of emails he intended to send to the claimant [347]. The original text of the proposed email was: “Please stop reaching out to Fabio. As I have told you several times, the pre-clinical development plan is not your responsibility. Furthermore, trying to set up meetings with him without consulting me is unacceptable. Fabio’s planned start date is 1 May 2022, and as you have been told previously, he will be leading the pre-clinical development plan…You have now repeatedly ignored and interfered with the chain of command, which is unacceptable and must stop immediately. Your behaviour results in ineffective communication and decision-making and creates a dysfunctional workplace for her [sic] and other colleagues. Continuing to ignore the chain of command will attract disciplinary action against you.” Perhaps understandably, the HR adviser suggested that a more collaborative style might yield better results and would better protect the second respondent too. She sent an alternative wording for the proposed email which was intended to focus more on specific examples of what the claimant was said to be doing wrong. It also sought to explain why the claimant’s involvement was a problem for the company (e.g. undermining/disrupting relationships between line managers and their direct reports.) [346].

[58]It is apparent that the claimant was also in direct contact with Mr Noble during this time. Mr Noble was attempting to set up ‘in person’ meetings with the claimant and the second respondent in order to try and resolve matters [353]. It is not clear whether the topic of conversation was due to be staff/contractor complaints against the second respondent or the claimant and the second respondent’s working relationship. The claimant says that the complaints about the second respondent were instead discussed at a Board meeting and ‘whitewashed.’ As there is no copy of the Board meeting notes available, I am unable to see if this is in fact what happened.

[59]On 8 February Mrs Kelly recorded in her diary that the second respondent seemed to be ‘out to get the claimant.’ On 21 February she summarised her thoughts in an email. She noted that the second respondent, in her view, misremembers or misquotes things. She noted that there was now a culture where some people were not allowed to talk to other people. Some people were working in silos. She noted that she and others had been, on occasion, banned from talking to specified people (e.g. HR). By the 25 February she felt that the second respondent wanted her to leave her job with the company. At the beginning of April Mrs Kelly was preparing to hand over for a long term period of sickness absence following abdominal surgery. There was a dispute with the second respondent about her sharing her access details and password details with the second respondent. She would not do this but agreed to set him up as an administrator so that he could access everything with the same level of ‘permissions’ as her. This would allow him to use his own login details and password but be able to access everything that she had access to. From May to June 2022 Mrs Kelly was on sick leave to recover from the surgery. During her sick leave the second respondent wanted her login in details for the bank. She refused to provide these based on her own training and then based on the instructions of the bank. It turned out that the second respondent already had all the access to banking accounts that he needed without any further login details from Mrs Kelly.

[60]The claimant also alleges he was first diagnosed with anxiety and depression in February 2022. The claimant was signed off on sick leave from 10 to 24 February 2022. It is apparent that the claimant had discussed issues of stress with Mr Noble the day beforehand [354].

[61]It appears that from 14 February HR were trying to arrange some form of mediation. [356]

[62]The claimant was signed off on further sickness absence from 23 February 2022. He returned to work on 7 April 2022. During his absence HR (“The HR Dept,” an external HR provider) provided advice to the effect that contact with the claimant during this time should be kept to welfare checks only. Other emails should be kept to a minimum and without an expectation that they would be read or acted upon during the sickness absence. The advice was that the claimant should not be involved in work related matters during this time. HR recognised that there was a balance to be struck between protecting the business, demonstrating the duty of care to the claimant and also understanding the claimant’s vested interest in certain matters and that being ‘out of the loop’ may contribute to his levels of stress and anxiety [358]. In light of this advice it appears that the second respondent emailed other staff advising them not to contact the claimant directly and to funnel all communications via the second respondent.

[63]During the claimant’s sickness absence the second respondent took over some communication with Agenda so that the formal agreement between the first respondent and Agenda could be finalised and signed off. This had not happened yet even though the breeding was well under way. [873- 890] Mrs Foster

[64]It appears that in January 2022 Jolanda Buis had been appointed to do work which Mrs Foster felt was part of her job role. Mrs Foster had called a meeting and says that she was confronted for doing so. Mrs Foster felt that she was being prevented from communicating with others working in the company. She took some compassionate leave and sick leave in January 2022. She returned to work on 26 January. She was then signed off work on sick leave for a further 10 weeks from 10 February 2022. In about April 2022 Mrs Foster was asked to write a job description for her role at the first respondent. In April 2022 the second respondent sought to make Mrs Foster work from the office, something which she could not do due to her caring responsibilities. On 24 April 2022 she was told that her role was being made redundant and she was put on gardening leave. Her last day of work was 25 July 2022.

[65]During March, whilst the claimant was on sick leave, it appears that a decision was made that he should be moved to the CTO role.

[66]It appears that the claimant attended a Board meeting on or about 25 March 2022 (rather than 21 March, as suggested by the chronology.) The change in the claimant’s job role and title was discussed and confirmed. As Chair of the Board, Mr Noble was also involved. Draft minutes from the meeting were in the bundle with the second respondent’s original draft and the claimant’s proposed comments and edits [365-367 and 378]. It is not possible for the Tribunal to determine which version is the more accurate record of the meeting.

[67]The second respondent’s proposed notes indicated that in the new role the claimant would not have any line management responsibility. It was intended that he should focus on a detailed description of why the Technology was superior to competitive technologies, develop an algorithm to select future indications (i.e. what diseases fitted with the advantages of the Technology), certain sections in the Target Product Profile and a narrative that described what the Technology was and why the independent parts are critical and why the company believed it to be safe. It appears that the claimant felt that some of the non-executive directors wanted him to remain involved in the development of the original product.

[68]On or about 25 March it appears that the Board were engaged in approving that change in the claimant’s post from CSO to CTO [899]. Discussions between interested parties seem to have been ongoing into April 2022. The claimant wanted to finalise the contract negotiation for the role of CTO and discuss the innovation responsibilities. He referred to “exciting times ahead” [912, 924-926]. The clearest confirmation of the role came from Mr Noble on 19 April [920]. It seems that the substantive change to role took effect on 19 April 2022, although this was only confirmed in writing at a later date (see below).

[69]The claimant returned to work at the beginning of April and had a return to work interview.

[70]It appears that in early April Mr Hanke (from Elevate) may have asked the claimant for an industry standard job description for the new role of CTO [370]. It appears from email correspondence that there was some disagreement as to whether everybody had the same understanding of how the CTO job role would work. The description of the role given by the second respondent and various Board members was not really acceptable to the claimant. He clearly felt sidelined and that there was no substance to the CTO role. He was supposed to provide input when requested by the Board/CEO but did not seem to have an ongoing programme of work aside from reacting to requests from the CEO/Board. The business of pressing ahead with developing the current Technology (which the claimant had invented) was passed to others who the Board felt were better suited to this business development task. This left the claimant without day-to-day control or input into the development of his invention. The problem was exacerbated because a formal job description for the claimant as CTO was never agreed and provided in writing to the claimant.

[71]The impression given by the documents is that when the claimant started to correspond with the PIL and get involved in the regulation of the mouse colony, the Board and the second respondent may have thought that this was a way of getting involved in the development of the Technology by the ‘back door’ (which his move from CSO to CTO was supposed to avoid.) It may well be that this is why the second respondent and the Board were concerned to minimise the claimant’s communications with people other than the second respondent and the Board. The claimant still maintained that he was not trespassing on CSO work but was only getting involved insofar as he had to as PPL holder. The Employment Tribunal is not in a position to say definitively which party was right about this. The Tribunal’s view is that both sides had a legitimate basis for their suspicions. The claimant clearly did have a legitimate reason for getting involved in the colony given his PPL status. He was also entitled to stand up to the second respondent in order to ensure that he did not become personally criminally liable as a result of breaches of the PPL regulations. At the same time, he was clearly reluctant to let go of the development of the Technology. Involvement in the PPL could well facilitate additional involvement in the product development which he was supposed to be leaving to others. This dispute and this distrust of each other’s motives and actions was at the heart of the case before the Tribunal.

[72]On 6 April 2022 the claimant says that the second respondent revoked the claimant’s access to the first respondent’s computer drives. To evidence this he refers to his request for access to the ‘Board’ and ‘Board Meeting’ folders as they seemed to have been removed from the Executive Folder of the Sutura Drive [379].

[73]On 11 April the claimant says that Mr Hanke wrote to him disputing that the draft job description that the claimant had provided reflected what had been agreed at Board level. The claimant maintained that this contradicted what he had discussed with Mr Hanke on the phone. It was the claimant’s belief that Mr Hanke’s email was influenced by the second respondent and Mr Noble. [380]. The claimant’s evidence suggests that he felt that the role he was being given had no real substance. He maintained that he was never given a job description for the new role by either of the respondents.

[74]On 19 April 2022 Mr Noble contacted the claimant to reinforce the three separate roles that he had with the company: as shareholder; as Director; and as employee. He set out what he thought was the relevant part of the claimant’s likely contract of employment as CTO [925]. The claimant wanted to set up a meeting to discuss this further and Mr Noble indicated that this could be dealt with by the second respondent in the first instance. The claimant replied saying this was not a problem and commenting “exciting times ahead.” [924]

[75]The claimant came to the conclusion that he was essentially superfluous and that his role as CTO had no substance. He understood that he was only to act when asked to do so by the company and that he was effectively an adviser and supporter to the company rather than in a substantive role. Whilst this may be an oversimplification of the position, it is certainly the case that the role of CTO was intended to be less central than that of CSO. The available documents suggest that the claimant was being moved away from controlling and developing the existing technology so that others could concentrate on that without the claimant’s interference/control. In the meantime, the claimant was likely to be engaged on scoping out new opportunities/innovations or applications for the company’s technology. The company management seems to have doubted the claimant’s suitability for the CSO role. They did not perceive him as a ‘good fit’ for this role at that stage in the development of the company.

[76]The claimant (as CTO) would have no line management responsibilities and did not have a designated budget during the (then) current funding round.

[77]On 21 April the claimant emailed the second respondent referring to the government having instigated changes to how PPLs were to be administered [928]. The claimant suggested that there was a need to put in new safeguarding measures that allowed review processes to occur to ensure that no animal work was delayed and outcomes could be reported to the Home Office. He stated, “I will reach out to Amar and Wouter to instigate the most appropriate and timely review of project protocols involving in vivo work, to ensure I am fulfilling my legal responsibilities as PPL holder, and that no delays occur.” [928]. The second respondent’s response was, “Please do not reach out to the team yet. As discussed with you, the team will reach out to you when necessary; we still have sufficient time to make sure we comply with our responsibilities.” This, on the face of it, appears to be an instruction to the claimant by the CEO not to contact the colleagues in question about regulatory matters.

[78]The claimant responded [927] “No worries understood- NB- this is not a problem. NB we are currently performing regulated procedures at Cambridge- so I will need to be kept abreast of that breeding programme and before any procedures are planned at AP, I will need to review the program(s) and experiments to authorised animal movement and work conducted under PP5695725. But please let the team know that it will be necessary to reach out as soon as possible re their plan the in vivo work… and just alerting you that the changes through ASRU now complicate and delay any changes.” It was unclear what these changes to the regulatory framework actually were. The claimant’s email suggests that he was well aware that breeding was going on at Agenda during this time. It does not appear to suggest that he thought there was some breach regarding the authorisation of breeding under Protocol 1 or that he should have authorised subsequent rounds of breeding and had not. Rather, he appears to be referring to his involvement in a review and authorisation of the move from Protocol 1 to Protocol 2 (which would involve tests on the mice at the respondents’ own Alderley Park premises.) It is reasonable to conclude that the claimant must have realised that there were further rounds of breeding going on at this point otherwise the programme as a whole would have ground to a halt and there would not be a colony to use when the Protocol 2 procedures commenced. If he genuinely thought there had been a breach of the PPL it is reasonable to expect him to be raising the issue at this point in the chronology but the available documents do not suggest that he did so. This documentation seems to suggest that the claimant’s concern at the time was not about any alleged breach of the PPL in failing to separately authorise subsequent rounds of breeding. That is not what he was raising with the respondent at the time. His concern seems to be to ensure that there is full compliance with the PPL when the experiments move to Protocol 2. (It appears that the experimentation under Protocol 2 only started in October 2022 after the PPL formerly held by the claimant was actually transferred to Mr Eilers [982-987.]

[79]The second respondent sent a letter to the claimant dated 4 May 2022 [929] confirming that his new job title was Chief Technology Officer and that the purpose of the job was to “provide scientific advice, prepare scientific analyses, and participate in meetings with for example investors, when requested by the CEO and/or Board of Directors. The CTO should stay updated on relevant and competitive technological advances and industry trends. He will attend such meetings, internal and external, as agreed by the CEO as necessary to fulfil his role.” The changes were said to have come into effect on 19 April 2022.

[80]On 4 May 2022 Amar Rahi filed an SC18 form with the Home Office [446, 930]. This was the notification to ASRU (Animals in Science Regulation Unit) that the procedural related adverse effects have exceeded or are likely to exceed the severity limitations or controls that are described in the PPL. The severity limits are designed to identify expected adverse effects associated with a given procedure and put in place specified interventions and controls. The claimant’s evidence was that SC18s are required when unexpected adverse effects occur or controls are not followed as authorised. Submitting the SC18 is part of the compliance process for the PPL. They are a means of reporting to the regulators that something unexpected has occurred or that something has not quite been followed as specified in the licence. ASRU then use this information to decide whether any further action is required.

[81]The SC18 in question related to Protocol 1 under the PPL. One genetically altered male was found dead at 5 weeks and 6 days old. Mr Rahi indicated that apart from monitoring the colony no further action was thought necessary by the first respondent or Agenda. The inspector said that the death should be recorded as unexplained. He made no other recommendations. The claimant was named as the PPL holder but Mr Rahi was named as the person making the report. The report was made well within the 72 hour limit that the claimant thought applied to such SC18 reports.

[82]The claimant was copied in to the email to the Home Office [447] and was therefore aware of the SC18 at the time. He says that prior to receipt of the notice he had not been made aware that the second respondent had authorised the conduct of animal breeding at the company’s premises. His position is that he was unaware of the number of mice who had been born or that had died, their medical state and ethical standards being applied. He was also unaware of the nature of the tests being conducted. He was concerned about this as it was fundamental to animal safety and compliance with the law. He was worried that he had been kept out of the loop whilst it was him (as PPL holder) who would be held responsible. He formed the view that Sutura were acting without authorisation from the PPL holder. He was convinced that the second respondent had authorised the breeding and that this was a breach of the PPL for which he and not Sutura would be held responsible. However, as set out above, I think it likely that the claimant did know about the Protocol 1 breeding at this stage and had been informed of the first reportable event when he was copied in on the SC18 report on 4 May.

[83]In light of these concerns the claimant says he sought an explanation from Mr Rahi. This seems to have taken place in a verbal conversation rather than in email correspondence. The claimant says that he indicated to Mr Rahi that he (the PIL holder) was aware that his responsibilities were to inform the claimant. Mr Rahi told the claimant that he understood this but had been acting on the express instructions of the second respondent who had apparently authorised the provision of breeding without the claimant’s involvement or consent. This is the claimant’s first alleged protected disclosure.

[84]I find that:a. The claimant did contact Mr Rahi and reiterate/remind him that the animal testing programme was not legally permitted to operate unless it was being overseen and managed by him in accordance with the relevant sections of the Act.

b. He repeated that information to the second respondent.

c. The information conveyed was about the need to ensure proper oversight and management of breeding in order to be able to comply with the law. I do not know what, if anything, the claimant conveyed as being the circumstances amounting to a breach of the legal obligation. I am not satisfied that he disclosed information to suggest there was a potential breach of the law. At most, the claimant re-stated the requirements for compliance with the regulations.

d. There is nothing in the information disclosed to suggest that the claimant is alleging a lack of compliant oversight by him. Rather he is just reiterating the need for proper oversight under the regulations. He is repeating the regulatory requirements rather than alleging or disclosing information showing a breach of them.

[85]The available contemporaneous documentation suggests that the claimant must have been aware that breeding was ongoing and that he was made aware of the first problem when the first SC18 was submitted. It is not clear to me that, in such circumstances, he can have thought that there had been a material breach in that he had not specifically authorised the second and subsequent rounds of breeding. We do not have Mr Rahi’s account of what the claimant said to him at this time and whether he alleged that he (the claimant) should have provided further authorisation.

[86]The second respondent specifically denies that he personally authorised the second or subsequent rounds of breeding. Given his role as CEO it is perhaps unlikely that he would have been directly involved in this. It is more likely that the second respondent thought that the claimant had already authorised all rounds of breeding when he set up the first round of breeding in December 2021. The second respondent did not need any further involvement in this. The assertion that Mr Rahi would have said that he was acting on the specific instructions of the second respondent lacks credibility in this context. I am not satisfied that Mr Rahi did say this to the claimant at this time. Furthermore, there is nothing to suggest that Mr Rahi would have thought he was acting in breach of any regulatory requirements at this stage. As far as he was aware he was overseeing breeding that had been authorised and was making an SC18 report in compliance with regulatory requirements.

[87]I have considered paragraphs 81-83 of the claimant’s witness statement at length. (In passing I note my understanding of the circumstances is that the breeding was taking place at Agenda’s premises, not Sutura’s.) Given the claimant’s involvement in planning Protocol 1 and 2 as PPL holder I cannot accept that he lacked all the knowledge about the mouse colony that he now asserts. He had set up the breeding protocol and authorised the start of breeding. He had the opportunity to check on the mouse colony in the meantime and to observe it via the observation system. He also had the opportunity to ask questions of those involved in the breeding. If he did not know the relevant information this was because he did not seek to get it for himself. This suggests that he was content that no further checks or authorisations were required from him under the terms of the licence and the intended Protocol 1 and 2 procedures. As he had set them up.

[88]The claimant asserts in his statement that the mice were being injected with medicine (paragraph 81) but his evidence to the Tribunal came to be that injecting the mice would take place under Protocol 2 at the Alderley Park Premises. Protocol 2 and the administration of drugs to the mice did not happen until October 2022. The part of his witness statement that asserts he now knows they were being injected with some undefined gene medicine cannot, therefore, be true and correct. In those circumstances he cannot have had the concerns about mouse welfare and compliance with the regulations at this point in the chronology that he now asserts in these proceedings. The chronology does not match with the surrounding evidence. I do not accept therefore that the claimant formed the view at this time that the first respondent was acting without authorisation from the PPL holder. He says he was upset that the second respondent had ‘evidently authorised breeding.’ However, this is inconsistent with his state of knowledge at the time about how often the breeding needed to be authorised. I am not satisfied that he thought the second respondent had personally authorised breeding

[89]Much of the difficulty in relation to this part of the case arises from the fact that the claimant’s use of terminology at the time of the relevant events does not match his use of terminology during the hearing. At trial it emerged that the claimant was asserting that Protocol 1 breeding under the PPL required his individual authorisation for each and every time that there was a round of breeding taking place. It is really only in the witness statement that the claimant starts to indicate that breeding is an experiment or regulated procedure which the claimant needs to authorise. It was during his oral evidence that it became clear he was saying that breeding was a procedure which was regulated and to that extent was an experiment which he needed to specifically authorise in order to comply with the Act.

[90]There was some dispute about who had to submit the SC18 reports. The claimant felt that, as PPL holder it had to be him who submitted the reports to the Home Office, whereas other evidence suggested that others could do this as long as the claimant maintained oversight and was updated about the SC18 events. On balance, there is sufficient evidence for me to be satisfied that the claimant probably did not have to fill in the reports himself as long as he was made aware of them and had an opportunity to intervene if required (e.g. by suggesting changes to the procedures.) This is supported by the fact that the SC18 form contains separate boxes for the name of the PPL holder and the name of the person making the report. This would be superfluous if the report had to be made by the PPL holder himself.

[91]The claimant went further and suggested that the SC18 forms were the first indication that he had that the breeding had been ongoing. He maintained that this breeding was unauthorised. For the reasons already stated, this assertion lacks credibility.

[92]The claimant also maintained that he raised this with Ben Acton and that Mr Acton wanted to keep the respondents on side for financial reasons. Hence, he was not going to ‘rock the boat’ about this in order to preserve the financial interests of his employer (Agenda). However, there is no documentation to support the claimant’s assertion. Furthermore, much as Agenda had financial interests in keeping the first respondent on side, it also had its own regulatory obligations. A breach of Agenda’s regulatory duties could have repercussions for Agenda’s own business and these could reach beyond its work with the first respondent to encompass its other work. On balance, I am not inclined to think that Mr Acton would knowingly fail to comply with regulatory requirements in order to preserve the business relationship with the first respondent.

[93]There was also some dispute about an observation system. It seems to be common ground that an observation system was installed at the colony breeding facility so that the claimant would at all times be able to see exactly what was going on. However, the claimant maintains that he was locked out of the system and could not access it to view the mice. He says he did not have visibility of the second and subsequent rounds of breeding via this system. However, there is no documentation to suggest that the claimant ever complained that the system was not working as intended and that he did not in fact have the ability to observe the colony. Although the documentation in this case is not complete. I would expect to see some reference to this problem by the claimant at the time (whether in emails or otherwise) particularly given his regulatory responsibilities.

[94]There was another mouse death on 21 May 2022 and the claimant was copied in on a further email to the Home Office with another SC18 notice from Mr Rahi dated 24 May 2022 [933]. Again it recorded a problem under Protocol 1 and confirmed that one genetically altered male was found dead at nine weeks two days old. The inspector’s comments noted that the death should be recorded as unexplained and confirmed that the SC18 could be considered closed. The document does not suggest that the inspector thought there was a problem or that any further action needed to be taken.

[95]The claimant was copied in on the second SC18 notice. He spoke to Mr Rahi that day and explained that he was responsible for communication with the Home Office and asked that Mr Rahi notify him (the claimant) first. He asserts that Mr Rahi again advised that he was acting on the instructions of the second respondent. The claimant says that he contacted the second respondent by email to make aware of this information. He maintains that his conversations with Mr Rahi and the second respondent at this stage were the second protected disclosure.

[96]I have been unable to locate copies of the claimant’s emails and cannot establish whether the claimant did in fact contact the second respondent at this point. It has been suggested that the claimant made arrangements to meet Mr Acton on 24 May and that the claimant asked to meet the second respondent and the team responsible for provision of animals for testing in order to explain the obligations under the PPL. I have not been able to locate the documents confirming this.

[97]In cross examination the claimant sought to suggest that he told Mr Rahi that he should have given the claimant information about Protocol 1. He suggested that Mr Rahi referred to the second respondent’s log book of staff communications with the claimant and instructed Mr Rahi to keep the claimant ‘in the dark.’ This information arose for the first time in cross examination.

[98]The claimant’s witness statement referred to him communicating with the second respondent by email as part of this protected disclosure but he accepted in cross examination that there was no copy of such an email available in the hearing bundle. He said that this was due to the second respondent’s failure to make full disclosure of the evidence in this case. This may well be correct. However, the claimant still has primary responsibility for proving his factual case and based on the evidence that I have heard and read I am not satisfied as to the basic content of the disclosures the claimant says he made to Mr Rahi and the second respondent as part of PD2. I am aware of the general subject matter because the conversation arose in response to the second mouse death. There will have been some comments regarding compliance with the regulations. But I cannot make a finding of fact that the claimant disclosed information which tended, in his reasonable belief, to show the relevant breach of a legal obligation or crime.

[99]Mr Fireman referred me to the Grounds of Resistance [65] at paragraph 29 and prayed that in aid as an admission by the second respondent about the email disclosure to him on that date. However, all that paragraph concedes is that the claimant notified the second respondent that he was unhappy that Mr Rahi had not advised him of the sending of the SC18. A disclosure of unhappiness that he was not prewarned that an SC18 was being sent is not reasonably to be read as a concession that the claimant made a disclosure of information tending to show the relevant information. It is an assertion of unhappiness and a desire to be pre warned about such matters. It does not say anything about a likely breach of the regulations or that there was a legal requirement for the claimant to be pre-informed before the Home Office, rather than at the same time as the Home Office.

[100]On 1 June 2022 the claimant says that he met with Fabiano Montrasio (the Vice President for Research and Development at the First Respondent). He says that at the meeting it became apparent to him that the laboratory teams were fully aware of the legal requirements surrounding the PPL but had been specifically instructed by the second respondent not to inform the claimant or seek his consent prior to continuing. The claimant says that he refused to authorise any further animal testing procedures unless and until he was provided with the necessary information and/or justification that would allow the program to operate within the parameters of the PPL. The claimant alleges that the first respondent continued to operate its animal testing programme without any authorisation or oversight from the PPL holder for a number of months. He believed that this was contrary to law. I was not directed to a contemporaneous document in relation to the meeting on1 June 2022. D1: During a meeting on 10 June 2022, the Second Respondent accused the Claimant of fraudulently claiming expenses from the First Respondent in respect of monthly rental payments on a property close to the First Respondent’s Alderley Park address.

[101]The claimant alleges that there was a meeting on 10 June 2022 during which the second respondent accused the claimant of fraudulently claiming expenses from the first respondent regarding rental payments. There is no documentation to suggest that a meeting took place that day. It is more likely that the alleged events/exchanges took place via email.

[102]By email dated 10 June [404-405] the second respondent contacted the claimant to alert him to the fact he had discovered that the claimant received a monthly subsidy of £1000 towards accommodation near Alderley Park. He noted that they could not find any documentation to explain this and that the claimant’s original service agreement did not refer to it. He pointed out that the claimant’s role was based remotely from 19 April 2022 and that therefore the monthly subsidy should, in principle, have also ceased on this date. He raised the possibility of clawing back any subsidy paid since 19 April and he therefore wanted to understand what had been agreed with the claimant. He asked for copies of any documentation in which the payment was agreed or which explained the terms of payment.

[103]The claimant responded to say that he had no documentation as this was agreed with Mr Beards. He said that he had a 12 month contract to September 2022 and was happy for no more payments to be made. Joanne Cairns (who had been appointed to fulfil an HR function for the first respondent) then got involved in the email chain and confirmed that they could not find anything in their documentation about this payment either. She confirmed that the payment should have ceased from April but that the company would not process any deductions with respect to April’s overpayment but would deduct May’s overpayment of £1000. This was to be deducted in full from the claimant’s June salary.

[104]The claimant replied to question this and confirmed that the agreement had been for an initial 12 month period and that he did not receive the subsidy until the lease was taken up on the flat at the end of quarter three in 2021. That is when the 12 month period for the subsidy started. He indicated that in summer 2021 it was recommended that he be based in the North to work predominantly at Alderley Park. He said that he took out the 12 month rental in good faith taking into account the subsidy of £1000 per month. He maintained that he would have made a different rental decision otherwise. He maintained that he was unable to access the network drive in which such documentation would be kept and was unable to forward any relevant information. He asked the respondent not to recover the £1000 and asked him to speak to other people who may have other information. He followed this up with an email on 14 June to James Noble and Alex Smith asking if they had any recollection of his rental arrangement. He confirmed that he had already offered that no more payments would be made, long before the 12 month contract was due to expire. Mr Noble forwarded this email to the second respondent saying, “I’ve never heard of this unless my memory is fading…” The second respondent replied to Mr Noble on 14 June [402] stating that he had come across the direct debits for the subsidy. Because they had changed the claimant’s contract to working remotely, he wanted to understand the terms and, if possible, stop the payment. He maintained that he had checked all Board resolutions from the previous year as well as the Board minutes and the budget approved by the Board, but he could not find anything relating to this topic. He had asked the claimant to provide written confirmation but the claimant had nothing on paper.

[105]The claimant also raised a query about this with Sophie (an Executive Assistant at the first respondent). She forwarded this on to the second respondent asking whether he was happy for her to find the document for the claimant or was it not a good idea? The second respondent’s response indicated that he had already checked and this was the reason he had asked the claimant for written confirmation, which he did not have. The second respondent confirmed that he would have a final look that evening.

[106]Heather Kelly also followed this up with Mr Beards, the former CEO [421]. Mr Beards’ response of 28 June confirmed his recollection of there being a relocation allowance budgeted for and then agreed with the claimant on covering the costs of his rental. Mr Beards had no access to any documents but believed that this would have been included in the budget that was approved by the Board during his tenure. The relevant documents would have been sent from Mr Beards to the Board before the Board meeting and so should be found by anyone with this email access. His recollection was that the cost was agreed with the claimant beforehand and was ratified by the Board without issue.

[107]Mrs Kelly’s Employment Tribunal statement describes how she felt that she was basically being accused of fraud with the claimant in setting up the payments. She further confirmed that, during her sick leave, she was told that her pay had reduced to 50%. When she had her return to work meeting on 27June she was informed that she was being made redundant.

[108]Mr Beards’ own statement to the Employment Tribunal confirmed his recollection that he approved the payment to the claimant when he was CEO. It was a subsidy of £12,000 for 12 months’ rental support and was clearly reflected in the budget submitted to (and approved by) the Board.

[109]The claimant’s case was that the payment was approved by Mr Beards and was reflected in the budget approved by the company’s finance director. The claimant says that despite being provided with this explanation, the second respondent refused to accept it as accurate. He maintains that when his account was corroborated and confirmed by Mrs Kelly and Mr Beards, the second respondent instructed Sutura’s accountant to classify these payments as part of his salary. He maintains that this decision created a significant additional tax burden for him although he did not demonstrate what that tax additional burden was.

[110]Whilst the claimant alleges that he was accused of fraudulently claiming expenses, the second respondent says that this was not the allegation and that the issue was about making sure that investors were aware of the expenditure. He maintains that it was important to do this as part of his attempts to secure further funding for the first respondent. He says that the first respondent decided to make a disclosure in the subscription agreement to confirm that the subsidy had been verbally agreed with the then CEO, was not documented, and potentially breached the existing shareholders’ agreement. It confirmed that the agreement was terminated and the last payment was made in May 2022. He refers to a series of emails where he proposes the accounting solution in relation to the claimant’s pay.

[111]The claimant says that even if the investors needed to know this, it did not explain why the claw back of the money was attempted. He maintains that the second respondent did not need to cancel the payments and the cancellation was not really justified.

[112]The last payment for rental subsidy was in relation to May 2022. The email on 4 July indicates that Elevate wanted to know about the PAYE and NIC situation. Given that the second respondent was going through a period of setting the company’s finances in order and seeking further funding I have no reason to think that this email dishonestly indicated that Elevate was raising a concern about how the payments should have been accounted for in tax and NI terms [467].

[113]I also note the advice given by Sutura’s accountant at [943] after the second respondent requested it. I have no reason to think that this is not genuine. He advises that it should be dealt with as salary rather than a benefit in kind. An adjustment to the previous year’s PAYE submissions was recommended

[114]Mrs Kelly’s view (on 18 July) was that this should not have been subject to tax and national insurance. She effectively advised the claimant that the accountants’ view was wrong. Again, it appears that there was a conflict in the opinion of accounting professionals.

[115]On 19 July the second respondent summarised the reasons why he considered that the benefit should be reclassified as salary [481]. It appears that he had instructed the company’s accountant Mazars to look at this. It also appears that the payments were grossed up so that the claimant should suffer no financial loss as a result of the reclassification. There were legitimate reasons why the second respondent thought the claimant should no longer receive the subsidy. This was because the claimant had not actually relocated to work and live in Cheshire. He remained working and living in Surrey aside from individual trips up to Alderley Park, as required. The original justification for the payments was no longer applicable. The claimant had not in fact relocated and so did not require a relocation allowance. The email of 22 July from Elevate [480] indicates that they and their advisers SullCrom approved the proposed change.

[116]The claimant says that on 17 June he emailed Adam Gadd (Principal Scientist) to ask him to send a document which the claimant had been prevented from accessing on Sutura’s server. He says that the second respondent then commenced an internal investigation into his conduct, citing alleged complaints from other staff members. The claimant maintains that the details of these complaints were not shared with him. The second respondent denies that he arranged an investigation but asserts that he had to remind the claimant of the scope of his duties to avoid him communicating with other staff who felt uncomfortable when the claimant contacted them.

[117]On 17 June 2022 the second respondent emailed the claimant and said, “I am reaching out to you because I have been getting concerning emails from several employees who you are reaching out to and asking for information. More specifically, you use the argument that you need specific information in order to prepare certain plans. Please stop reaching out to our employees asking them for information, immediately. It is upsetting people and they feel put under pressure because you are implying you need information to prepare some sort of plan…. To date you have not been asked to prepare any specific documents. I have asked Joanne to schedule a meeting with you to discuss this in more detail.” [414] The second respondent suggested that that during this time the claimant had erroneously been suggesting that the ongoing breeding of mice was not authorised and that this would put him in conflict with the Act as PPL holder. The second respondent felt that this was disingenuous and was putting undue pressure on the claimant’s colleagues and the first respondent.

[118]The claimant indicated that he had struggled to find the complaints about him from other employees. Instead it appears that the employees made a report to the company when the claimant contacted them. It appears that some form of log was being kept of claimant’s interactions with them [399]. The emails indicate that the issue was whether the claimant was seeking to interfere with the development programme and whether the time required to correspond with him was interfering with the primary focus and responsibilities of the employees in question.

[119]On 17 June [411] the claimant emailed Mr Rahi regarding the proposed cull of mice that were too old for breeding purposes. At this point the claimant asserts that the previous regulated procedures (i.e. breeding) were not authorised. His solution was to propose that he (the claimant) should sit in on the planning meetings. My presumption is that this would enable him to give oral authorisation for the breeding (although I question whether this would actually fulfil the regulatory requirements that the claimant was saying had been breached.) Alternatively, he suggested that a formal business case was prepared. He said he would create an ‘animal usage and justification template so that all procedures were authorised’ but would always make himself available for ad hoc meetings or calls. This email suggests that the claimant wanted to be involved in all meetings around the breeding programme and was suggesting creating a form that could be completed to demonstrate that the breeding had been properly authorised.

[120]If the claimant genuinely believed that the previous rounds of breeding had been done in breach of the licence, why was he not suggesting that he report this to the Home Office in order to ensure that all the records were all square and compliant going forwards? The solutions he proposed in this email would not, it seems, retrospectively authorise the breeding. Furthermore, it is hard to see what he means by the assertion that no business case had been made for the breeding. The need to breed until the required number of mice were obtained for Protocol 2 was clearly set out at the start of breeding in December 2021 when the proposed breeding timeline was put forward. Perhaps it is a matter of degree. Does the claimant think more information is required in a business case for regulatory purposes? If the claimant did hold this view, it is not clear whether it was a reasonable one.

[121]If the claimant did not genuinely think that there had been a regulatory breach at this stage, why did he send this email? The claimant would say that the very fact that he started to send emails such as this indicates that he genuinely and reasonably believed that there had been a breach of the legal obligations under the PPL. An alternative motivation may be summarised as being that the claimant felt he was being sidelined out of the business. He had unwillingly agreed to move to the CTO role from the CSO role. He was not satisfied that the CTO role had any real substance to it and was still trying to lock down his job description. He wanted to use the CTO role as a platform for developing further products and innovations for the company. In doing this he did not want to be locked out of the data which might be obtained through the ongoing breeding and subsequent Protocol 2 procedures. He was aware that the second respondent was seeking to put limits on his correspondence with other team members which would have given him visibility of the ongoing developments in the existing programme. He knew that whilst he remained the PPL holder, he needed to have some degree of access to his colleagues and to data in order to authorise the procedures. He could utilise correspondence on regulatory compliance in order to keep up to date with data and discuss issues with colleagues. To some extent it gave him a reason to seek information and involvement in the process which he would not otherwise have had once he moved out of the CSO role. It could be said that it served the claimant’s purposes. That said, it is likely that the claimant had more than one motive for making these assertions. The fact that his requests for information served his purposes in building the CTO role and protecting his position within the business does not necessarily mean that the claimant did not believe that there had been a breach in regulatory compliance. Both can be true simultaneously.

[122]Attributing such a motivation to the claimant might seem farfetched until one remembers that he had not previously suggested that he had to specifically authorise each and every round of breeding or risk breaching the regulations. He had not set up a system whereby he separately authorised each round of breeding at each stage. The claimant had suggested that there was a regulatory change at some point but he has not explained to the Tribunal what this regulatory change was. The Tribunal cannot assume, without more, that there was a change in the regulatory requirements in the middle of the chronology which would necessarily entail a change in the claimant’s approach to authorising Protocol 1 rounds of breeding. This would account for the apparent misunderstanding and disagreement with colleagues about whether they needed the claimant to authorise more breeding or procedures under Protocol 1. This development evidently came as a surprise to them, as can be seen from the flow of contemporaneous correspondence. They did not agree with the claimant’s apparent updated understanding of the regulatory requirements and they did not understand why his position had changed. This would explain why so many of those involved, both at the first respondent and at Agenda, did not share the claimant’s interpretation of the rules.

[123]On 20 June 2022 the claimant was copied into a third email from Mr Rahi to the Home Office attaching an SC18 [416,938]. The SC18 recorded that one genetically altered male was found dead at three weeks three days old. The inspector noted the contents of the report and stated that the SC18 could be considered closed. That same day the claimant says that he contacted Mr Rahi and organised a meeting for 29 June 2022. He explained that he needed to be informed prior to the SC18 being issued. The claimant was concerned that no appropriate mitigations were submitted by Mr Rahi on the form. He was concerned how this would reflect on him as PPL holder. That said, the Home Office inspector recorded that the SC18 could be considered closed and did not make any recommendations about mitigation action that should be taken. It appears, on the face of the document, that the claimant’s concerns were unfounded and that it was not strictly necessary for him to receive a copy of the SC18 before it was submitted to the Home Office so that he could contribute to it. D5: On 22 June 2022 the Second Respondent made a series of complaints about the Claimant’s alleged conduct.

[124]On 21 June 2022 the second respondent and Joanne Cairns had a meeting with the claimant. The second respondent followed this up with an email to the claimant the next day [435/419]. In that email he referred to feedback he had received from several employees. The second respondent had been informed that on several occasions the claimant had contacted some of the employees asking them for updates on experiments and data. They told him that they felt under pressure because of the tone of the claimant’s emails and the reasons the claimant asked for the information/data. The employees stated that they were uncomfortable because of it. The second respondent noted the impact that the claimant’s behaviour was having on the team. He said, “If you want to be part of the team that is going to make Sutura a success, you need to become a team player who respects his colleagues and takes responsibility for his own behaviour. In your communication with these colleagues, you justified your request for information by saying that you need it to “prepare [your] plans/strategy.” Because of this, we felt the need to remind you yesterday of the instructions you received from the Board, both verbally as well as in writing (letter dated 4 May 2022). Following months of conversations and discussions, the Board unanimously agreed that the purpose of the CTO (your new role) is to provide scientific advice, prepare scientific analyses, and participate in meetings with for example investors, when requested by the CEO and/or the Board of Directors. The CTO should stay updated on relevant and competitive technological advances and industry trends. He will attend such meetings, internal and external, as agreed by the CEO as necessary to fulfil his role.” The second respondent continued, “Since we provided you with the instructions for your new role, neither I nor the Board have asked you to work on any plans or contact any team members.… Nevertheless, last month I decided to invite you to the weekly meetings with our senior team in which we provide updates and discuss critical topics more frequently. I also told you multiple times that the team will share data/information with you, but not in the middle of experiments and not before they have had time themselves to analyse and discuss the findings.… If you continue to fail to follow the above instructions, you leave me no choice but to take appropriate disciplinary action.”

[125]The claimant says that what he was doing was trying to ensure that there was compliance with the PPL in terms of animal welfare and that this was the reason for the communication. However, the documents indicate that this was not the whole story. Even if the claimant had legitimate regulatory/PPL concerns, he was also contacting people about other matters which were arguably not part of his remit as CTO [413]. He says he was looking to build out innovation plans for the company but the respondent maintained that he had not been tasked with this at this stage. Therefore, the claimant was going outside his remit as CTO and did not need to be contacting people in this way as part of his job role.

[126]On 28 June 2022 the claimant emailed Mr Rahi and said, “the continued use of animals at present puts me in conflict with the… Act 1986…, if no authority for use has been given. So, we need to adopt a working resolution ASAP please, for reasons of personal liabilities. I made suggestions in my previous email (17 June), for your consideration.” [422] He asked for an update regarding the numbers of procedures conducted to date. He said he would draft a template to sign off on the use of animals and indicated that some of the returns would be retrospective. However, it appears that he never did produce this said template. Mr Rahi’s response [423] is to suggest that he would set up at meeting with Cambridge (i.e. Agenda) regarding concerns about the SC18s and to discuss the use of this strain (of mice). He indicated that he would set up an internal meeting beforehand to discuss the SC18s (concerns and use of the strain) and to discuss the process of communication regarding project program/business case, and handover of information.

[127]Also on 28 June [445] the claimant emailed Mr Rahi, Agenda, and ASRU to discuss the SC18s and severity limits. The contents of the email suggests that his concern was that the mice had died, not that the breeding was not authorised. He specifically referred to the difference between the current data and the use of this strain of animals in the past. This fits with his contention that he had not previously experienced mouse deaths with this strain at Protocol 1 stage. D7 On 29 June 2022 the Second Respondent was critical of the Claimant’s alleged conduct in a meeting between the Claimant, Second Respondent and Ms

[128]There was a further follow-up email on 29 June from the second respondent [434] indicating a need to talk urgently. He alleged that the claimant was not following instructions and this needed to be discussed. They were due to set up a meeting with the claimant and Joanne Cairns at 1pm that day. The claimant responded asking for further information given that they had only just met and discussed this at length. He doubted that there was anything further to add. He wanted an agenda for the meeting and details of the second respondent’s concerns. The second respondent just said that they would discuss it at 1pm. The claimant would not let this lie. He wanted more information before the meeting about the concerns and information to be discussed. He indicated that if it was to do with meeting with Mr Rahi, this was in relation to the claimant’s role as PPL holder which was a separate responsibility outside the scope of the CTO role and responsibilities. He set out the legal responsibility that he had to comply with the regulations. He indicated that 20 to 40 procedures had occurred without the PPL holder’s knowledge. He indicated that there were potentially serious repercussions including revocation of licences. He wondered whether the meeting was to do with his responsibilities as PPL holder and hoped that, if so, the email negated any need to have the meeting. He indicated that, unless he received further clarity, he considered it best not to have the 1pm meeting. (I pause to note that it is unclear what the 20 to 40 procedures he refers to could actually be given that Protocol 2 tests on the mice did not start until October 2022. This could only be a reference to 20 to 40 instances of breeding under Protocol 1.) The tone of the claimant’s email would have caused alarm and suggested that others may have committed criminal offences.

[129]The second respondent replied via email [432] indicating that the meeting was not to remind the claimant of his role and responsibilities. He felt it necessary to discuss the claimant’s behaviour towards employees since the second respondent had sent the email the previous Wednesday. The claimant queried what behaviour he was talking about. He said he was not available for the meeting that day because of medical matters with his daughter. The second respondent replied that he wanted to discuss the concerns about behaviour in the meeting rather than over email.

[130]In light of the claimant’s unavailability, the meeting was cancelled, to be rescheduled the following Friday. The second respondent indicated that he would also instruct Mr Rahi to cancel his meeting with the claimant for 3pm later that day. He concluded, “in the meantime, please stop reaching out any of our employees, for any topic. If you have any questions you should approach me (and Joanne for HR -related matters). I will then follow up internally if required. I have instructed our team accordingly.” This appears to be the ban on communications with others (apart from HR and the second respondent) that the claimant refers to in his claim albeit he dates this to 28 June.

[131]The claimant responded once again with a lengthy email about his responsibilities as PPL holder [430]. The second respondent sent a further email to the claimant (copying in Joanne Cairns) [426]. In that email he sought to deny some of the claimant’s assertions about breaches of the rules and the licence. The second respondent recognised the claimant’s need to be able to raise and discuss concerns as project licence holder and indicated an intention to prepare a SOP to describe the communication process for the claimant and the rest of the team. He sought to prescribe points of contact and the information required when communicating about the PPL. He sought to make himself (the second respondent) the point of contact for the claimant in his role as licence holder. He maintained that a further follow-up meeting was required to discuss the claimant’s behaviour and its detrimental impact on the team around this. This does seem to suggest that the second respondent’s concerns about the claimant’s behaviour towards members of the team was at least partially based on his communications about the PPL rather than other matters relating to his role as CTO. The claimant maintained to the Employment Tribunal that if he was contacting people, it was in his capacity as PPL holder and not as the CTO.

[132]There is a dispute between the parties as to whether the meeting on 29 June actually took place. The claimant says that he did attend such a meeting with the second respondent and Ms Cairns. He alleges that the second respondent was critical about the claimant’s alleged conduct. The respondent denies that such a meeting took place. The line of communication above suggests that the meeting was cancelled and rescheduled for the following Friday (See [426]). The claimant says that the animal related meeting was cancelled but the meeting regarding his conduct actually went ahead on 29 June. On balance, I am inclined to conclude that both meetings were cancelled. The claimant was unavailable and so neither proposed meeting took place on 29 June.

[133]The claimant says that second respondent authorised testing outside the scope of the PPL. He maintains that whilst Mr Rahi will actually have ‘pushed the button’ on the testing, he did this under instruction from the second respondent. I was not referred to evidence in the bundle where Mr Rahi suggests that he was acting under instructions from the second respondent in order to provide any evidential support for this contention.

[134]In June the claimant had talked about setting up a ‘usage and justification template for continuous breeding’ [936]. However, the claimant says that he was told not to do it. The claimant maintains that he was being stopped from communicating with others in order to ensure that the PPL was complied with. However, the email from the second respondent at [429] on 29 June would suggest that a SOP was being considered to ensure that the claimant could communicate with others for regulatory purposes without it causing problems in terms of putting them under pressure or leading to complaints about the claimant from other staff.

[135]Also on 29 June I note that Mr Rahi intended to set up an additional breeding round in order to test backup candidates. The explanation for the breeding was to be sent to the claimant [448]. It seems that Mr Montrasio did this straight away [450]. The claimant responded [450/452] to indicate that there was no business case provided and so written authority could not be provided. I am not entirely sure why he said that no business case had been provided given that Mr Montrasio’s email explained why these mice were being bred and what was to be done with them. The claimant seemed to be requesting much more detailed information (which may or may not have been necessary in order to comply with the PPL requirements.) Alternatively, he may have gained useful information for his CTO role from the provision of such information.

[136]During this period of time Heather Kelly was made redundant from her role (27 June 2022.) D6: On 28 June 2022 the Second Respondent removed the Claimant’s M6 toll pass.

[137]On 26 June Sophie emailed the claimant indicating that the second respondent had asked her to find out if it would be possible to cancel the claimant’s M6 motorway fast-track subscription as the claimant would not be visiting Alderley Park as frequently as previously so as to justify the subscription. She asked him if it was okay [425]. The claimant contacted Sophie and the second respondent to point out that the tag cost the company the equivalent of £1 per month. He therefore felt that, for the convenience it afforded, it was best that it was kept. He indicated that if cost was an issue they should drop him a line to come to another arrangement. The claimant feels that he was being targeted in a petty way because he had blown the whistle. The claimant says that on 28 June the second respondent went ahead and removed the claimant’s M6 toll pass.

[138]The claimant accepted in cross examination that such arrangements needed to be properly disclosed as part of investment arrangements. However, he did not accept that this meant that the respondent had to cancel the pass. He felt that it was petty. A saving of £1 per month was going to make no material difference to the respondents. Even though it was not being used every day, the claimant still maintained that he travelled to Alderley Park on average once per week and would still use the M6 toll pass as a result.

[139]The second respondent maintained that this happened during a period when the company was trying to complete a critical fundraise in order to be able to continue trading. He stated that in order to be able to fundraise, the company needed to be able to give specific assurances or guarantees to the investors about the state of the business, its operations and its legal compliance at the time of the agreement. The second respondent confirmed that he decided to check all liabilities and payments which had been set up on company cards and decided to cancel any subscription if it was not regularly used, irrespective of the amount. As the claimant worked from home, he took the view that the claimant did not really need the toll pass. He says that he confirmed to the claimant that he would still be reimbursed for travel expenses, including any toll on the M6.

[140]As stated above, a further round of mouse breeding was initiated on or around 29 June. The claimant was informed of this by Mr Montrasio via email [452]. The claimant responded to say he was writing in response as the PPL holder. He maintained that for this round of breeding there was no business case provided and therefore formal written authority could not be given. Mr Montrasio forwarded the exchange to the second respondent. Mr Montrasio confirmed his understanding in a further email to the second respondent that the ongoing breeding activities were fully compliant with the approved project licence [449]. He explained, by reference to the wording of the licence and associated documentation, how he had concluded that the continued breeding of mice was already authorised under the licence. He had not been able to identify a single condition requiring that the PPL holder had to approve the breeding plans.

[141]On 30 June Mr Montrasio sent an email to Mr Rahi, Mr Eilers and Dr Wagena sharing information about the timing of ‘disclosing’ the study designs [455] and referring to a meeting which had taken place on 25 May 2022 at which the claimant was apparently present.

[142]In an email dated 4 July the claimant alleged that the ‘SOP’ that Dr Wagena had drafted to regulate his communications was not allowing him to discharge his duties as PPL holder [941]. The tone of the email is somewhat combative.

[143]The second respondent responded to clarify that the SOP was not about communications in relation the claimant’s role as licence holder but rather to govern internal communications between Sutura employees. He maintained that it was not restricting the claimant’s role as licence holder. He also acknowledged the concerns that the claimant had raised in his emails to the team. The second respondent indicated that, before they could agree on a work process, they first needed to discuss the current situation with the people involved. They could then discuss how best to continue. He suggested that the discussion should continue at the meeting later that day.

[144]In a further email on 4 July [940] the claimant asserted that the second respondent was factually incorrect. The claimant alleged to the second respondent that neither the claimant nor Mrs Foster had initiated breeding last year (i.e. 2021). He suggested that the mice were only delivered in March of 2022. He suggested that no authority had been granted and that he was ultimately responsible for these alleged breaches. He concluded, “in the meantime can you inform me how many mice have been generated and that no further unauthorised procedures or breeding are ongoing?” Parts of this email from the claimant are demonstrably incorrect. In particular, the claimant accepted during the final hearing that the mice had been delivered in 2021 and that he had authorised the first breeding in December 2021. Whether the contents of the email are the product of confusion on the claimant’s part or are evidence of him deliberately misleading the second respondent is hard to discern. Given the amount of correspondence between the parties on this topic over a number of months and the claimant’s period of sickness absence due to stress, it is possible that he has made a mistake in this email. He seems to rectify this in later communications where he accepts that the round of breeding in 2021 was in fact authorised by him.

[145]The claimant says that during a meeting on 4 July where the claimant, the second respondent, Mr Rahi, Mr Montrasio and Dr Eilers were present, he outlined the information regarding the continued breach of legal obligations that were being caused by their failure to involve him in the animal testing programme (and the potential criminal consequences thereof.) Dr Wagena says that during the meeting the claimant was misrepresenting the facts and continued to cause stress and anxiety to the company’s employees. He maintains that during the meeting the rest of the team explained to the claimant that the experiments had not yet started and that the only regulated procedures that were ongoing were those that had been initiated by the claimant himself (i.e. the breeding.) Consequently, from his point of view, there cannot have been any continued breach of the legal obligations in the way that the claimant asserts. He maintains that the claimant must have known this.

[146]The agreed chronology suggests that later that day the claimant was due to have a meeting with the second respondent. The second respondent alleges that the meeting was cancelled by the claimant. The second respondent says he emailed the claimant to advise that he was looking into the claimant’s concerns and to proceed with the meeting as arranged. It is unclear from the documentation whether this second meeting actually took place on 4 July or not.

[147]On 5 July it appears that the claimant emailed the second respondent, Mr Montrasio, Mr Eilers and Mr Rahi, possibly as a follow up to the meeting on 4 July [458]. The email concerned the “BRU Translational Workforce.” The claimant proposed a meeting every two weeks with him in the chair as PPL holder. The second respondent indicated he would get back to everyone with potential dates. The claimant also indicated that animal welfare issues should be dealt with by the claimant and Mr Rahi and reported back to the next ‘Brut force’ meeting. “As pointed out- I need to be able to act unhindered- and it is in the best interests of the company.”

[148]A little later that day there is an email from the second respondent to the claimant [457] stating, “Please stop communicating directly with Amar. He is extremely affected by the accusations you have made against him. From now on, until further notice, and as James reminded you, I will manage the communication with the team.” D8 On or around 5 July 2022, Ms Cairns commenced a disciplinary investigation into the Claimant’s alleged misconduct.

[149]It appears that the same day that Dr Wagena told the claimant not to communicate directly with Mr Rahi, there had been a meeting/interview between Mr Rahi and Jo Cairns (which had triggered the second respondent’s instruction that the claimant should stop direct communications with Mr Rahi.) Mr Rahi had taken offence at the way the claimant had spoken to him the day before and was upset that it had been pointed out that he had potentially breached the PPL. The notes from the meeting [461] confirm that the claimant had said to Mr Rahi that Mr Rahi had broken the law and that this was technically fraud. Mr Rahi felt bad that he was being accused of fraud by the claimant and wondered why the claimant had not replied with his concerns to the first SC18. Mr Rahi was recorded as feeling very uneasy in continuing to be involved in animal work and the September study. He did not want to be part of the breeding side of things. He was happy to continue writing protocols/setting room studies but did not want to be involved in PPL-related ‘stuff.’ He is recorded as having said, “For my own sanity and professional reputation I don’t want to be part of this. It’s my professional and personal reputation. I am worried about what might happen. Open to discussion about support with anything, even if not science. But if I am not off the breeding then I would want to hand my notice in.” He continued, “he emailed me with legal language and feel I have to reply. This is above my remit.… Do not wish to be colony manager or main contact for Cambridge. Or involved in the breeding.”

[150]The notes from this meeting indicate that Mr Rahi was genuinely upset about the way that the claimant had communicated with him, even if the claimant felt he had legitimate cause for contacting Mr Rahi. Mr Rahi had made a substantive decision to remove himself from this line of work. This was not at the second respondent’s instigation but appears to have been a direct response to the way that the claimant had interacted with Mr Rahi. The written records do suggest that there was a legitimate and genuine issue about the claimant’s communication style with some members of staff which the second respondent had a duty to address with the claimant.

[151]The claimant copied Mr Rahi in to an email response to the second respondent and Ms Cairns [456]. He stated, “you have informed me that Amar and Fabio raised concerns to you… I have not made ANY accusations to Amar at all-this is pure nonsense. Please kindly stop sending messages of this type-as it reduces business confidence-this will be picked up in our meeting with James-as we are at risk of crashing the company.” He continued, “Amar, I am unaware of any accusation I made to you or against you… Any matters we have discussed has been to do with the PPL licence and my responsibilities thereof… All information I gave was factually based and not appropriate given then grave concerns that have been raised [sic]. I have tried to manage the situation, to whit, I had been prevented from having appropriate information in a timely fashion and wished to amicably resolve matters-which I believe was concluded yesterday. If there has been any perception of relations on my part, then you have my sincerest apologies, if any slight has been takenbut please, as the first-line problem resolution, I would be happy to hear any concerns… But please provide information of what the problem is. I am now sick and tired of being perpetually hounded with regards to my conduct or behaviour, which has been beyond reproach during very perverse times.”

[152]The claimant’s response to Mr Rahi may well have been well-intentioned but the tone was unhelpful and more defensive and accusatory than reconciliatory. Furthermore, as noted by the second respondent, Mr Rahi should probably not have been included in the reply to an email where the claimant was asked to stop communicating directly with Mr Rahi. The claimant appeared to be ignoring instructions not to communicate with Mr Rahi. This was something which the second respondent pointed out by email.

[153]In a further email to the claimant on 5 July the second respondent confirmed that Joanne Cairns had started an investigation into the claimant’s behaviour. The second respondent continued, “This is the last time I’m telling you stop communicating with our team directly. You have now been instructed multiple times by me as well as the Board/James. It needs to stop! I will discuss with Joanne what our next step will be if it happens again. Regarding your role in the company, you can directly communicate with me and we can involve the team were required. We agreed on a plan forward in our meeting yesterday on how to keep you informed about our in vivo programme and I expect you to work with us.” [456]

[154]The second respondent invited the claimant to a meeting with Joanne Cairns regarding the concerns raised by team members about the claimant’s communications with them. Whether it was referred to as a disciplinary investigation or not, it was clearly an investigation into his conduct. As set out below, the results of this investigation meant that the claimant was taken to a disciplinary hearing.

[155]In cross examination the claimant accepted that Mr Rahi will have been upset but maintained that this was not because the claimant accused him of fraud but because the seriousness of Mr Rahi’s own actions/noncompliance will have dawned on him. He would be upset as a result of that. However, Mr Rahi wanted to step back from working with the colony. The documents referred to above suggest that he was struggling with working with the claimant in relation to the colony. The notes from Mr Rahi’s meeting on 5 July suggest that he was concerned about direct communication with the claimant and about the risks of doing PPL work. He stated that even if the contact stopped, he did not want to do the breeding. This suggests not only that Mr Rahi was upset about working with the claimant but also that his confidence in working on the colony had been irretrievably undermined. He was concerned to protect his ‘own sanity and his professional and personal reputation.’ This suggests that his concerns were multi-faceted.

[156]It appears that the second respondent contacted Mr Acton at Agenda in order to get his perspective on whether there had been any breaches of the PPL. The second respondent sought to reassure Mr Rahi that he had done nothing wrong and would not be legally liable [460].

[157]On 6 July the claimant sent an email to Jo Cairns detailing the legal obligations of the PPL holder and asserted that the first respondent was in breach of legal obligations [476].

[158]Also on 6 July Mr Noble sent an email to the claimant and the second respondent having emerged from a meeting to see multiple emails requesting/insisting that he ‘get on a call.’ [474] He continued, “I am being bombarded with emails and texts from Keith pertaining to losing the licence to execute the preclinical model program and have emails from Edwin assuring me that this is in hand… We cannot break the law in any way, but there needs to be a constructive dialogue as to how to move the situation on. It is clear to me that the baton needs to pass from Keith to someone else as soon as practicable and that, in the meantime, Keith needs to make every effort to help Edwin with the issue. This does not include talking to staff unless Edwin authorises it. Please can the two of you sort this operational matter out to the best of your ability.”

[159]On 8 July the claimant sent the second respondent another email reiterating the legal obligation that he felt he was under as PPL and the ways they were currently in breach of those obligations, as he saw it. He requested permission to stand down as PPL holder [471].

[160]The second respondent replied to this [945] confirming that the team at Agenda had confirmed that no mistakes were made and there were no other events that should have been reported to the Home Office. They confirmed that Mr Rahi had acted in accordance with established principles when preparing the SC18 reports. The second respondent indicated that he needed feedback from the claimant on the role of colony manager as Mr Rahi had stepped down from the breeding programme. Mr Eilers had taken over the role in the short term but the second respondent wanted to know if the claimant preferred to take on that role himself or was content for Mr Eilers to do it.

[161]The claimant disagreed with what Agenda were reported as having said about breaches of the rules. He sent a further email to the second respondent following a conversation he had had with Mr Acton at Agenda [947]. This was the email where the claimant asserted that Agenda had confirmed that the first respondent was in breach of the “3Rs” and would need to address this through a separate legal process based on ‘compliance procedures.’ He said that Agenda had also confirmed that acceptable best practice was not observed with respect to the submission of the SC18. He suggested that Agenda had serious concerns about how the PPL could be discharged in the current circumstances. He effectively suggested that Agenda agreed with his view of the circumstances and the lack of compliance. He said he was unable to discharge his responsibilities as PPL holder satisfactorily and would look to step down as PPL holder at the earliest opportunity.

[162]The claimant’s email was shared with Mr Acton who was concerned that it did not accurately reflect the contents of the discussion he had had with the claimant [950, 11 July]. He was evidently concerned that he was being misrepresented and asked for all communications between himself and the claimant to take place in written form. He also asked that communications go through a third party and be facilitated by the second respondent. He indicated that any direct contact he received from the claimant would be directed back to the second respondent. This is clear evidence from a third party that the claimant was causing difficulties in the way that he communicated with others. This was not coming from the second respondent and I do not accept any suggestion by the claimant that Mr Acton was ‘put up to this’ by the second respondent.

[163]This email would tend to suggest that the second respondent was not the only person who was seeking to formalise and restrict the claimant’s direct communication with others. The claimant’s view is that in this email Mr Acton is seeking to ‘cover himself’ and protect his own interests and that Mr Acton’s statement (that there has been no breach of compliance) is not correct. Given that Mr Acton’s interests would extend beyond keeping the first respondent ‘on side’ I think that the claimant’s view is unrealistic. Mr Acton had his own regulatory and business interests to consider, whether or not this adversely impacted on the first respondent.

[164]Mr Acton, Head of Regulatory Science at Agenda, again wrote to the second respondent on 15 July [957]. In his email he set out how the PPL system was supposed to work and where the legal responsibilities lay. In the email he said, “submitting PPL standard condition 18 reports is a key part of demonstrating compliance and does not carry negative connotations. They are, in essence, a means of reporting to the regulators that something unexpected has occurred or that something has not quite been followed as specified on the licence. This is useful in identifying trends… And as such we actively encourage all PPL holders to ensure these reports are submitted whenever required.… These reports certainly do not place a programme of work at increased risk; indeed, the Home Office tend to view licence holders who never submit any reports with greater concern than those who report openly and proactively.… Lastly, I wanted to provide one final point of clarification as I am aware legal accountabilities can be a concern as challenging to determine; the project licence holder (i.e. Keith in this case) is the individual legally responsible for the overall implementation of the programme of work specified in the licence and for ensuring that it is carried out in compliance with the conditions of the licence. The licence holder is able to delegate certain tasks and activities to achieve this, however the legal responsibility cannot be delegated and remains with Keith. As such, Sutura as a commercial entity bear no responsibility for this under the… Act.”

[165]Mr Acton also set out a subsequent explanation of the scope of criminal responsibility under the Act [1129]. This appears to be significantly narrower than the claimant suggests. Non-compliance does not necessarily mean that a criminal offence has been committed or that the claimant will be responsible for such a criminal offence.

[166]Also on 8 July Ms Cairns submitted questions to Mr Montrasio as part of her investigation into the claimant [470].

[167]The claimant says that on 11 July he spoke to Directors and funders and offered to resign from the company. He says that the funders insisted that their continued support was contingent on his involvement in the company. I have not been able to trace the documents recording this exchange or confirming the claimant’s assertion. D9 No action was taken to investigate the Claimant’s complaint against Ms Cairns submitted on 12 July 2022.

[168]The claimant says that the second respondent convened a meeting of the Board of Directors on 12 July. He advised them that the claimant was seeking to revoke the PPL and that this would jeopardise the company’s business operations. The claimant says that this caused a significant amount of hostility towards him from the Board and was not an accurate statement of his intentions. He was not seeking to revoke the licence but rather to pass it to someone else as licence holder. (There is no written record of what was said at this meeting).

[169]The claimant says that he offered to resign from the company given what the second respondent had said about him. The claimant says that Mr Noble advised that it was vital that he remain employed in order for the first respondent to secure its second tranche of investment funding in November 2022. Without that funding the first respondent would not have been able to continue operating. In those circumstances the claimant says that he reluctantly agreed to stay on as CTO.

[170]A relevant email exchange between the claimant and Ms Cairns is at [1248-1255.]

[171]Around 6 and 8 July the claimant sent emails to Ms Cairns containing information which he considered was relevant to her investigation into his conduct. On 12 July Ms Cairns indicated that she had not been able to keep all of the information that the claimant had disclosed confidential because of the business consequences, particularly in relation to the claimant withdrawing from the PPL licence [1251]. There was then an email exchange about the use of the phraseology in relation to the claimant ‘withdrawing from the PPL.’ The claimant took exception to her suggestion that this would have serious business consequences [1249].

[172]There was further debate as to how long it would take to get a replacement for the claimant as PPL holder. Ms Cairns’ last message was at 2.46pm on 12 July and she forwarded the email chain to the second respondent at 3.23pm the same day,

[173]The claimant was clearly upset with what Ms Cairns had said or done. However, much as he complained and expressed his dissatisfaction about it, it is not clear what steps he wanted Ms Cairns to take in response to the events of 12 July. There seems to have a misunderstanding about what the claimant was saying about his position as PPL holder and what implications this would have for the company. This seems to be ironed out and clarified in the exchange between the claimant and Ms Cairns.

[174]It is not clear to me that action the claimant wanted to see in response to his communications on 12 July [D9]. What investigation should this have triggered. I am not satisfied that, at this stage, there was any duty on anyone at the respondent to look into a complaint from the claimant.

[175]Two days later on 14 July [1258] the claimant sent an email to the second respondent complaining about the HR investigation. He alleged that Ms Cairns had breached his confidence and lied about his conduct and intentions. He complained to the second respondent about this fact and said that he would support any process that the second respondent had to initiate. However he did not suggest what that process should be.

[176]In the same email the claimant alleged that Ms Cairns was no longer an impartial person to do the disciplinary investigation. He wanted someone from the external provider, The HR Dept, to do it instead.

[177]The second respondent’s response [1257] asserted that Ms Cairns was capable of conducting a fair and objective investigation. He maintained that she would continue in the investigator role whether or not the claimant decided to attend any investigatory meeting. He advised the claimant to let her do her job without interfering. He went on to assert that Ms Cairns had no option but to notify second respondent of the claimant’s potential decision to withdraw/step down as PPL holder. Effectively, if this were to have business consequences then the CEO needed to know about it.

[178]In response to this the claimant later said that he would attend the meeting in an effort to draw a line under the matter. He seemed to be doing this ‘in the interests of harmony’ rather than because he believed that Ms Cairns would be a fair and impartial investigator. D10 The Second Respondent failed to arrange for someone other than Ms Cairns to conduct the Claimant’s disciplinary investigation notwithstanding the Claimant’s request to this effect on 14 July 2022.

[179]On or about 15 July the claimant met with Joanne Cairns to discuss the disciplinary accusations against him. The transcript of the discussion was in the hearing bundle [504].

[180]The claimant viewed what he said about the second respondent during that meeting as being confidential. Ms Cairns reported the claimant’s concerns about Dr Wagena to Dr Wagena. The claimant complained about this and asked for an independent impartial HR company to take over the investigation.

[181]The available documentation suggests that the claimant was already complaining about the breach of confidentiality prior to the meeting on 15 July. He requested an independent investigator in an email of 14 July [478]. He repeated this observation in an email to Ms Cairns on 18 July [491].

[182]On 27 July Ms Cairns sought information from Ben Acton about the claimant’s role as PPL holder and about the claimant’s interactions with him. This was for the purposes of her investigation. Mr Acton provided a lengthy response via email on 28 July [485]. He noted that the SC18 does not need to be written by the PPL holder- they are just responsible for ensuring that the report is made. He indicated that it was good practice to share the SC18 with the PPL holder before submission so that they can provide input or consult the Establishment Named Persons for advice. However, this is not mandated in law. Apparently, the Act simply required PIL holders to notify the PPL holder as soon as possible and that the PPL holder ensures that the Secretary of State is notified as soon as possible. Mr Acton took the view that as long as these things have happened, both parties have complied with their licence conditions. He also confirmed that the manner of communication between the PPL and the PILs is not specified. As long as the communications are effective, the exact nature of them can be specified at local level. The implication is that it is permissible to have communications via a third party. Mr Acton also noted that he did not approve of the claimant’s use of informal conversations between the claimant and Mr Acton in this context. Her felt that discretionary advice given in good faith was grossly misrepresented, whether by intent or not. He felt that this undermined his ability to carry out his role and that it would not be tolerated.

[183]The claimant viewed Mr Acton’s email as a complete vindication of his own position. I am not sure that this represents a balanced reading of the document in its totality.

[184]Mr Acton had also provided some further information on the PPL to the second respondent on 15 July 2022 [957-958]. This referred to the SC18s as part of demonstrating compliance and the fact that organisations with no SC18s are likely to be viewed with more suspicion than those with them. He had reassured that the SC18s in the first respondent’s case did not put the first respondent’s programme at increased risk.

[185]On 27 July the second respondent sent an email to claimant regarding his job role. [1261]. He confirmed that nobody had asked the claimant to work on ‘building out the innovation and technology desk’ and indicated that they needed the claimant to stop reaching out repeatedly on the same topic. D11 On 10 August 2022 the Second Respondent advised the First Respondent’s staff that the Claimant did not trust them and believed they could not do their jobs properly during a meeting to discuss the handover of the PPL License.

[186]The claimant alleges that on 10 August the second respondent advised the first respondent’s staff that the claimant did not trust them and believed they could not do their jobs properly. This was said to have occurred during a meeting to discuss the handover of the PPL.

[187]The respondent says that there was no such handover meeting and so this could not have happened. The claimant maintained that there had to be a meeting for this to happen and for him to know that he had safely relinquished his legal responsibilities. I am not satisfied that this is correct. There is an absence of evidence to substantiate the claimant’s factual assertions about what happened in relation to this allegation. The burden remains on the claimant to establish the facts on which his claims are based and I am not satisfied that he has done this here. Indeed, if the first respondent’s staff did not trust the claimant, it is perhaps more likely that they came to this conclusion based on the claimant’s own dealings with them and his insistence on being involved in correspondence where others thought that this was not necessary.

[188]On 19 August Ms Cairns told the claimant that she had decided to refer the allegations regarding the language used towards Mr Rahi and the claimant contacting him when asked not to, to a disciplinary hearing. Two other allegations against the claimant were not pursued to a disciplinary hearing. She had compiled a report following her investigation into the claimant’s conduct [493] and this was sent out on 19 August 2022 with a recommendation that a formal conduct meeting should take place [529].

[189]A letter (dated 22 August) was sent to the claimant inviting him to a disciplinary hearing on 25 August. The letter enclosed the pack of evidence which was to be considered and gave the claimant the option of submitting a statement prior to the hearing. The claimant was offered the opportunity to have a companion at the hearing. D13 On 9 September 2022 the Claimant was issued with a formal written warning.

[190]The disciplinary hearing was actually held on 9 September.

[191]The outcome letter following the hearing was dated 12 September [533]. The claimant was issued with a written warning in relation to some aspects of his conduct. The warning was for his communication with Mr Rahi contrary to direct instructions from the second respondent. The claimant was offered the right of appeal, which he exercised.

[192]This disciplinary outcome was arrived at by an external HR provider from “The HR Dept.” The claimant maintains that this outcome was at the direction of the second respondent. I appreciate that the HR Dept would be influenced by the second respondent to some extent as he was the CEO asking them to provide the HR service in question. However, that is not the same as them deciding to impose disciplinary warnings because they have been told to do so by the second respondent. The claimant says this was part of the second respondent seeking to engineer him out of the business as a bad leaver (with attendant adverse financial consequences.) However, this fails to acknowledge the fact that the claimant was not actually dismissed as a result of the disciplinary proceedings. He was given a warning. If there was a plot to oust him entirely one would expect him to have been dismissed at this stage. That said, the evidence in Tribunal suggested that the second respondent was asking people to log and report the claimant’s communications with them. This does show that he was prepared to work behind the scenes to gather evidence which could be used against the claimant. He had asked other employees to report their interactions with the claimant to him. This was not a transparent process and could certainly be used to gather evidence against the claimant selectively rather than capturing evidence which might exonerate the claimant in relation to the allegations. The investigation which led to the disciplinary hearing was supposed to be done by Ms Cairns so it seems odd that the second respondent got involved in this way. It is not how one would expect a fair, even handed and transparent investigation or evidence gathering exercise to be conducted. It also left the second respondent open to allegations that he was trying to engineer disciplinary sanctions against the claimant rather than remaining detached from the process. Because of the informality of this information gathering exercise, it is not possible for the Tribunal to see whether any employees involved offered positive or exculpatory evidence about the claimant which could be put in the disciplinary balance in the claimant’s defence.

[193]On 13 September the formal request to transfer the first respondent’s PPL to Mr Eilers was submitted to ASRU [536].

[194]On 16 September 2022 the claimant appealed the disciplinary outcome. D15 On or around 23 September 2022 the Second Respondent cancelled the Claimant’s company credit and without prior warning or discussion

[195]On 23 September the second respondent cancelled the claimant’s company credit card. The claimant says that this was the second respondent’s decision and that it was done without warning.

[196]The second respondent accepts that he cancelled the credit card but denies that it was done without warning or discussion with the claimant. The second respondent’s position is that he was trying to complete a fundraising round at this time and, as part of that, the company had to make specific assurances or guarantees to the investors about the state of the business, its operations and its legal compliance. He says that he checked all liabilities and payments set up on company cards and wanted to minimise liabilities. He took the view that the claimant, in his role as CTO, did not need to make any purchases for the company and did not travel to the company’s premises regularly. Therefore, he took the view that the claimant did not need the credit card and cancelled it. He says that he explained his position to the claimant and the claimant confirmed that he understood the second respondent’s reasoning. I was not directed to any documents confirming that this discussion/explanation took place.

[197]It is legitimate to question whether the claimant actually needed a company credit card. Whilst it might be seen as a symbol of his status within the organisation, it does not necessarily mean that he needed it for business purposes. If the business was looking to cut unnecessary expenditure perhaps removing credit cards was one relatively straightforward way of doing this. The respondent suggested that the claimant had no travel expenses but the claimant maintained that he travelled to meetings. The claimant maintained that the card was essential for his job and that he only became aware that it had been cancelled when it was declined when he tried to use it. The claimant maintained that the respondent company had £3.2 million of funding and this would last without ‘belt tightening’ measures which involved removal of his company credit card. The claimant denied that there were any financial problems or inappropriate expenditure.

[198]I conclude that the credit card was removed but that the claimant was not forewarned that this would happen and the decision was not explained or justified to him. The matter was handled in a high handed manner which left the claimant feeling disrespected and demeaned. It was more embarrassing and hurtful for him than it needed to have been. It was poorly handled.

[199]That said, I am able to accept that, until new funding had been established, it was appropriate for the second respondent to be careful with the company’s money in order to ensure that it lasted for as long as possible. I am also aware that someone else was made redundant at the same time as the claimant and that a business case, of sorts, to justify costs savings was presented to the Board. However, it was a very general costs savings exercise. The documents were light on detail in terms of how long the money would last and how the financial situation would be alleviated by cutting costs associated with the claimant. The claimant may well be right in saying that removing his credit card would save ‘peanuts’ in the grand scheme of things. That said, it might be a poor business decision but still be a genuine one. My view is that there is likely to have been more than one factor at play here. The card may have been removed for cost saving reasons but this was done without warning and explanation. Causative factors included cost savings, a clash of personalities between the claimant and the second respondent, the fact that the claimant would not do as he was told regarding his communications with others, the substance of his alleged protected disclosures regarding PPL matters, and the second respondent’s overall ‘non-consensual’ management style.

[200]From October 2022 the claimant was prescribed venlafaxine.

[201]On 7 October the claimant’s disciplinary appeal was heard. D16 On 19 October 2022 during a meeting of the First Respondent’s Board of Directors, the Second Respondent accused the Claimant of being responsible for the deaths of at least 50% of the mice used in the First Respondent’s research programme.

[202]The claimant says that on 19 October (during a Board meeting) the second respondent incorrectly accused him of being responsible for the deaths of at least 50% of the mice used in the first respondent’s program. This account is disputed by the respondent.

[203]The second respondent says that there had been no testing on the mice until October 2022 so there can have been no comment about the deaths of mice at this stage. The claimant says that ‘testing’ included the breeding processes under Protocol 1 and that the second respondent was alluding to deaths at this stage of the process.

[204]The second respondent also directed me to consider documents in relation to the claimant’s work at Reading before the first respondent was set up. They cover the period from November 2016 to April 2019. Those documents do disclose mice deaths. Technically they would be the claimant’s responsibility given that the company was not yet set up to work on the Technology. There would, therefore, be grounds to say (accurately) that the claimant was responsible for 50% of mice deaths if this data were taken into consideration. However, this would be prior to Sutura starting to work on the Technology product. It would be during the period of university-based research.

[205]The second respondent directed me to consider the documents relating to that Board meeting. I have located these at [982]. The agenda includes a section to update the Board on progress to date in the company’s research and development. Unsurprisingly, it makes no reference to mouse deaths. Whilst the second respondent referred to the minutes of the Board meeting in his witness statement, no copy of such minutes was included in the hearing bundle. I am unable to refer to any contemporaneous written record of what was said during the meeting.

[206]On balance, it is apparent that by this stage that there was no love lost between the claimant and the second respondent. Whilst technically, testing on the mice (under Protocol 2) had not commenced, there had been Protocol 1 procedures and mouse deaths during this time. There were also the mouse deaths during the claimant’s earlier experiments at the university. Taking the evidence in the round I conclude that the second respondent probably did say something about the claimant’s responsibility for mouse deaths. It is unlikely to have been complimentary given his frustrations with the claimant at around this time. It may or may not have been technically correct, depending on the period of time considered and what was referred to as ‘testing’ ‘experiments’ or ‘research on mice.’ I do, however, think that the claimant and the second respondent did not share the same understanding of the terminology and did not use it in the same way. The claimant referred to research, testing etc as covering procedures with mice from Protocol 1 onwards, whereas the second respondent adopted a definition which would be more recognisable to a non-specialist. He was not including Protocol 1 procedures in his definition of testing or experimenting as it did not involve use of the Technology. It was a preparatory stage prior to the start of the actual experiments and involved getting the right numbers of the correct type of mice on which the Technology could be tested. I also accept that the claimant’s definition of testing, experiments or research to include Protocol 1 was not really conveyed to the respondents prior to these Tribunal proceedings. There has been a miscommunication between the parties during the period of time under consideration whenever there has been consideration of what constituted testing, experiment or research on the mice. It remains unclear whether the claimant always considered experimenting or testing procedures to include Protocol 1 procedures or whether this is a position he arrived at after the events in question. Was there a genuine mismatch in definitions between the parties or is that how the claimant has sought to characterise it after the event? Having heard both parties give evidence, I have to conclude that there is likely to have been a genuine miscommunication and a genuine mismatch between the definitions each man assumed when discussing the research. It is likely that they have spent a considerable amount of time ‘talking at cross purposes.’ As set out above, they came to the company with different backgrounds experience and different priorities. They were unable to understand each other’s point of view and both of them became increasingly frustrated with the other. This got in the way of prompt and satisfactory resolution of disagreements. The claimant, in particular, became increasingly suspicious and mistrustful of the second respondent. The second respondent’s ‘non-consensual’ management style did nothing to reduce those levels of mistrust and suspicion. D17 On 19 October 2022 during a meeting of the First Respondent’s Board of Directors, the Second Respondent refused to provide the Claimant with a copy of the patent that had been submitted which was based on the Claimant’s research during his time at the University of Reading.

[207]The claimant alleges that the second respondent refused to provide the claimant with a copy of the patent that had been submitted which was based on the claimant’s research during his time at the University of Reading.

[208]The documents which were provided to the claimant are at [539] and [544]. The claimant maintains that these are not copies of the patent itself but of documents associated with it. The claimant said that the patent was provided to him three months later. He maintained that the patent was the document at [556]. The second respondent’s position was that he provided all the documents that were actually available at that time and the patent once it was available.

[209]The email from the second respondent to the claimant on 12 October [539] is entitled “USPTO Submission and Notice of Allowance.” The email indicated that the attachment was the most recent submission to the USPTO to obtain allowance along with the resulting Notice of Allowance in a single PDF. This is the end of a chain of emails from the respondent’s patent attorney also said to attach the document as described by the second respondent. The document itself appears from [544]. The document at [544] shows that the ‘application’ was filed on 6/12/18. This is likely to refer to the original patent which pre-dates the respondents’ involvement. The due date is recorded as 28/11/2022, which suggests that any amendments are due to take effect after the date of the document, at the end of November 2022. The contents of the document indicate that a fee is due within three months. This appears to be an interim document pending final issuing of the changes to the patent. It appears to have been ‘mailed’ by the Patent Office on 26 August 2022. A document entitled “Notice of Allowance” is at [549] and it acknowledges receipt of various documents at the Patent Office on various dates in 2022. The “reasons for the allowance” start at [551]. There are various supplemental documents in the pages which follow including various amendments to the patent which are unintelligible to a non-scientist or someone is not a USA patent expert.

[210]Pages 540-570 are listed as one document in the index to the hearing bundle. The claimant says that the actual patent is at [556]. This in the middle of the document, when viewed as a whole.

[211]I was left unclear as to whether there was actually a document available that the second respondent could have provided to the claimant at that date but which he refused to provide. As a matter of common sense, the second respondent could not have provided the claimant with a document which did not yet exist.

[212]Taking the available evidence in the round I conclude that the respondents did provide the claimant with the available patent documentation when he requested it in October 2022. The cover emails and organisation of the document pages indicate that it was presented to the respondents as a single pdf document and then forwarded on to the claimant. It was not tampered with or edited. I therefore conclude that the claimant has not proved his factual allegation in relation to the patent. He asked for it and the respondents provided what had come from the Patent Office. Further documents were sent, possibly 3 months later. This would fit in with the indication that a further fee was payable within 3 months of the document in the hearing bundle. There is no evidence to suggest that either respondent refused or withheld patent documents from the claimant. He was passed copies of all documents as and when they became available.

[213]On 20 October the claimant was provided with the outcome letter regarding the disciplinary appeal. His appeal was upheld and the written warning was rescinded [577]. It is not true to say that this was a complete vindication of the claimant. The appeal officer agreed with the original conclusion that the claimant had failed to follow a direct order from the second respondent and that this was inappropriate. However, she took into account the fact that the email was sent with good intent and that the claimant responded with an apology. She maintained that behaviour that offends or upsets others is worthy of investigation and formal action being taken. The sanction was only overturned in this case as the claimant’s intent was to apologise rather than reach out and engage in conversation to undermine the second respondent’s clear instructions. However, the outcome letter does also refer to the need to look at the impact of actions on others and not just the claimant’s subjective intentions.

[214]When informed of the appeal outcome the second respondent sent an email to Ms Cairns on 17 October stating, “Completely unacceptable and extremely disappointing. If okay with you, I will try to join the call.” The second respondent wanted to join a call to the appeal officer with Ms Cairns later that day. Ms Cairns herself appeared to be ‘pretty horrified’ by the appeal officer’s decision. Given the agreed list of issues in this case I am not required to make findings of fact about whether this was an appropriate step to take in relation to an appeal decision by a third party HR provider and so I do not do so.

[215]The claimant says that he reduced his medication in Autumn 2022. D19 From 16 November 2022, Ms Cairns failed to progress the investigation into the Second Respondent’s conduct.

[216]According to the chronology it appears to be agreed between the parties that on 4 November 2022 the claimant attended a meeting with Joanne Cairns during after which he requested that the second respondent’s bullying and harassing behaviour be addressed by the first respondent [581]. It is not clear whether the claimant was raising a formal grievance or complaint or was asking the first respondent to deal with this without the need for a formal complaint from him. Ms Cairns’ response email after the meeting noted that the claimant did not want to raise a grievance at that time but that he was aware of the process. The claimant wanted her to investigate this as a disciplinary matter without the claimant’s input. The claimant apparently did not explain why he did not want to raise a grievance.

[217]Ms Cairns then confirmed on 16 November [579] that, given the seriousness with which she took the allegations, she had decided to investigate them without a grievance from the claimant.

[218]The respondent’s position was that Ms Cairns set up a series of meetings to look into the claimant’s concerns during November 2022 but they were cancelled by the claimant. The claimant denied this and said that he did not know what was being referred to.

[219]Ms Cairns arranged a meeting for 22 November but it appears that the claimant cancelled this in his email of 20 November [591] on the basis that it was now obsolete. He also noted that Ms Cairns had previously advised him to raise a formal grievance and so he had now decided to do that and had submitted the written grievance to Mr Noble.

[220]Given the existence and date of this email it appears that the matter was taken out of Ms Cairns’ hands within 4 days of the claimant alleging that she should have taken it forward. I am not satisfied that she can be criticised for a lack of action in those circumstances. D20 On 16 November 2022 the Second Respondent circulated a document to the First Respondent’s Board of Directors which proposed to make the Claimant’s role redundant.

[221]On 17 November the second respondent circulated a document to the first respondent’s Board of Directors regarding a cost savings exercise. This included a company restructure resulting in the claimant’s role and one other being made redundant. He stated, “During the last couple of weeks James, Thomas, Emily and I have reviewed our plans that we shared with you in July this year and assessed where we are against current market conditions. Based on the operational budget approved by the Board of Directors during the Board meeting dated 21 July 2022, the £3,200,000 that was recently raised would get us to Q2 2023. Based on the current market situation, it is very unlikely we will be able to attract external investors and complete the next investment round by Q2 2023. To extend the company’s cash runway into late 2023, the company can delay the investment in the new labs and GMP manufacturing facility and not sign the lease for the new space. In addition, we are also looking at other cost savings. We would like to ask your approval for this change in plans. You can do so by replying to this email. I have attached a short memorandum including the implications of our proposed approach.… We are also looking at other cost savings and will reach out to you in the future with more details.” [585].

[222]The claimant maintains that this email came a month after the funding round had closed, a funding round that had his salary fully costed. It appears that the second respondent attached a report to this email [221]. He maintained that the role of CTO was no longer needed. He was proposing that two roles would be at risk of redundancy, the claimant’s and the Head of Research and Development. He estimated that removing the salary of the CTO for 2023 would save £100,000. He indicated that the company was spending approximately £220,000 per month. Assuming the cost savings from the two redundancies and excluding any additional experimental work on Duchenne and/or a second indication, the available cash should extend the runway into late 2023 which, he felt, would significantly increase the probability of a successful fund raise next year.

[223]The claimant questions whether making him redundant was effective in saving costs given the cost of his redundancy award. The claimant maintains that the second respondent could not dismiss him for conduct or other fair reasons and could not accept his resignation because the Board would not allow him to resign as investment was predicated on the claimant’s involvement in the company. He is of the view that the indication that there was no money for his salary demonstrates the culmination of a vexatious process that the second respondent had initiated from November 2021 to oust the claimant from Sutura. The claimant maintains that he was the only employee left with experience in rare diseases. The claimant felt that he was the only person left who was able to make critical decisions in the use of the Technology. He concluded that making him redundant meant that the company would have no one left to fulfil the company’s actual mission.

[224]The claimant maintained that the second respondent’s figures suggesting that money would run out by the end of Q2 in 2023 were wrong. He based this on the ‘burn rate’ of £220,000 per month and the fact that he says there was £3.2 million in the bank in October 2022. At that rate the money would last longer than 6 months. As a matter of mathematical calculation this would seem to be correct. Certainly, redundancy for the claimant would not be a complete solution to any funding problems that the first respondent was facing, although it would make a contribution. However, the question is not just about costs savings. Was there a need for the claimant’s post within the organisation now that he was CTO rather than CSO? I am not convinced that they still needed the claimant on board in order to take the company forward to take the product to market. He was not actually working on the further development of the Technology to get it market ready at the time the redundancy was considered. This rather suggests that these activities were being taken forward by other people, not the claimant. They had access to the claimant’s Technology already. As a matter of business sense, the claimant’s role may have been surplus to requirements and therefore potentially redundant. This is likely to have been the case whether or not the claimant ‘blew the whistle’ about the PPL.

[225]It was suggested in cross examination of the claimant that the CEO took a 45% pay cut and the Directors loaned money to the business at around this time. This would tend to suggest the money saving was not just about the claimant’s role. Second respondent’s overview of the company finances.

[226]The second respondent gave an overview of the first respondent’s financial position as part of his witness statement to the Employment Tribunal. The second respondent took the view, based on a review in the second half of 2021, that various claims made by the claimant and Mr Beards regarding the scientific strategy were either not relevant or not realistic. He noted that key claims that the claimant used to attract investors were based on data collected whilst at Reading University. He noted that the claimant had not mentioned that animals had died after the Technology was administered to them at Reading. The second respondent’s reading of the documents was that about 10 mice had died which would not be acceptable within a biotech or pharma company setting. This would be viewed as a ‘red flag’ commercially and development of that drug would have to stop because of safety concerns. This drug could never go to a clinical trial in the second respondent’s view. He noted that this information was not in the slide decks which had been used in presenting the Technology to investors. The second respondent’s understanding was that the claimant continued to say that a ‘lead candidate’ had been validated and that a GMP scalable manufacturing process had been developed which produced product which was suitable for patient administration. The second respondent’s conclusion was that if the investors had known about these deaths and the difficulties in taking the product through to further development, none of the investments into the company would have been made. The second respondent concluded that the investors could claim their money back and possibly sue on the basis that all relevant information had not been disclosed. On the other hand the claimant maintained that all the relevant information was available to the investors at the time if they examined the underlying accompanying document and not just the ‘top deck’ or slides.

[227]The second respondent’s conclusion was, therefore, that the Technology might well work but the first respondent would now need to prove this for itself step by step, instead of being able to rely on the positive data from animal experiments. Effectively, certain work which had already been done would have to be redone in order for the programme to move forward in a way which would be acceptable to investors. He says that Elevate agreed to continue supporting the first respondent. However, the completion conditions that were originally specified were not met and so the first respondent could not draw down on its second tranche of funding (£6.5m). The first respondent would have to start a new fundraise. At that point the company would exhaust its funds in the second quarter of 2022 [892]. The aim was therefore to raise a further £3.7 million.

[228]In March 2022 the company closed the new funding round having raised £3.2m in total (which was less than half of the original second tranche and less than the new target of £3.7m). This led to the second respondent needing to reduce costs for the first respondent in order to reach their objectives by the end of Q1 2023. He discussed this with Mr Noble and Mr Hanke and it became clear that a restructure would be required [916]. The second respondent took the view that the company needed an experienced pre-clinical drug development expert to help the company design a realistic development strategy. The Board of Directors therefore decided to hire a Vice President R&D (who started in May 2022) and change the claimant’s title from CSO to CTO as this would fit better with the claimant’s academic background and experience. In essence the respondent is saying that claimant’s academic work and experience were not fit for the commercial development needs of the company and hence this move to CTO was to keep him on board in a consultancy type role whilst filling the skills gap with someone who knew how to translate academic research into commercial business.

[229]I note that this is all part of the contemporaneous documentation from earlier in 2022. It is persuasive and makes business sense. Of course, it put the second respondent in a predicament. How could he manage this with the claimant given that the Technology was his personal achievement and he was understandably proud of it? He would understandably be reluctant to allow the company to go in a different direction than he originally intended, given the reasons that he had gone into business in the first place. However, the claimant’s expertise was scientific and academic rather than commercial. The best commercial interests of the company might well mean that the claimant was not the person the company needed going forwards if it were to achieve its objectives. Hence the claimant had already had his role changed from CSO to CTO well before the redundancy proposal.

[230]The second respondent indicated that further tough decisions were required and two more people had been made redundant in summer 2022 (Mrs Foster and Mrs Kelly).

[231]The second respondent says that it also became clear towards the end of 2022 that further costs would need to be saved as it would be difficult to raise additional funding in the first quarter of 2023. Further redundancies were considered [979, 1075] including the claimant (as well as delaying the investment in new labs.)

[232]The second respondent also indicated that there were inconclusive results from some experiments which meant that the company decided to change direction to focus on other disorders rather than Duchenne Muscular Dystrophy.

[233]These redundancies were not the only cost savings that were made (they were not the whole solution by themselves). Two Directors had their appointments terminated in the first half of 2023; the second respondent agreed to reduce his own salary by more than 45% from 16 June 2023. Mr Hanke also agreed to reduce his fees as a non-executive director.

[234]The second respondent indicated that in 2024 the company tried to raise an additional £1.3million which would allow the company to complete the animal study testing on the first new drug. The company did not manage to raise the required funds and instead secured a loan of £550,000 provided by the Directors of the company and one previous Director. At that stage the investors informed the company that if the data was negative, they would not invest more money into the company.

[235]There were negative results from the animal experiments in October 2024 which indicated that the drugs that the company had tested were not working as expected. The company therefore knew it would not be able to raise more money and would be trading insolvent if it continued. Therefore, there was no option but to place the company into voluntary liquidation and all employees were made redundant on 14 October 2024.

[236]I am satisfied that the above summary of the first respondent’s financial and business development (over the time period that the second respondent was involved) is a broadly accurate one. Various parts of this account are disputed by the claimant but he has not provided me with sufficient evidence (such as contemporaneous documents) to show that this account is incorrect. Furthermore, I recognise the claimant’s noble intentions in pursuing this area of research and his personal and professional investment into the project. This would make it understandably difficult for him to accept changes of approach which were more commercially minded and not aligned with his original plans. D21 On 18 November 2022 the Second Respondent formally notified the Claimant by letter that his role was at risk of redundancy.

[237]The second respondent says that he had arranged a meeting with the claimant on 18 November in order to discuss some of the budgetary challenges facing the company. The meeting did not take place and the claimant said that he had not received the invitation. Dr Wagena said it was important that they speak and asked to rearrange the meeting for the afternoon [582]. The claimant suggested that the request for the meeting was made after the scheduled start of the meeting. The claimant said that he hoped to meet Ms Cairns in the next week and said that he would be available to meet the second respondent thereafter.

[238]In the absence of the meeting, the second respondent sent the claimant a letter dated 18 November indicating that he was formally at risk of redundancy [588].

[239]On 20 November the claimant indicated in writing that he had many suggestions of ways in which his redundancy could be avoided [590]. He indicated that he was unwell and was awaiting surgery. He indicated that he would be in touch to start the consultation process once he had further information about his rehabilitation.

[240]On 20 November the claimant submitted a formal grievance against the second respondent and Joanne Cairns to Mr Noble citing bullying and harassment. He asserted that both the second respondent and Ms Cairns were compromised from conducting an independent investigation and he expected that his complaints would be investigated independently by the external HR provider known as The HR Dept. [592]

[241]On 22 November the claimant was invited to attend a consultation meeting on 29 November (via Teams) with the second respondent and Joanne Cairns. The claimant was unable to attend due to ill health and therefore the meeting was postponed [594, 595]. The claimant was off work on sick leave until 24 November and his sick leave was then extended to 23 December on grounds of stress and anxiety. On 25 November the claimant was signed off work for anxiety and depression.

[242]On 1 December claimant submitted a Data Subject Access Request (DSAR) to the first respondent. D23 On 12 December 2022 the Second Respondent sent the Claimant a letter inviting him to attend a formal consultation on 14 December 2022.

[243]Mr Noble sent the claimant a letter dated 12 December inviting him to attend formal consultation meeting on 14 December [599.] The letter was sent by Mr Noble and not the second respondent. The claimant says that this was written for Mr Noble by the second respondent and that essentially this would not have happened otherwise. The claimant maintained that the Board could not make these sorts of executive decision so it had to have been initiated by the second respondent. I note that the proposed consultation meeting was to be conducted by Mr Noble and Ms Hinchcliffe of the external HR provider The HR Dept. D24 On 22 December 2022 a decision was made to proceed with the Claimant’s first consultation meeting in his absence.

[244]The claimant was invited to a redundancy consultation meeting on 22 December. The claimant was on sick leave and unable to attend [604]. The letter dated 23 December [605] indicates that the meeting nevertheless went ahead in the claimant’s absence. The letter contained a summary of what Mr Noble said had been discussed. It concluded by inviting the claimant to attend a further consultation meeting on 29 December 2022. The claimant was warned that this would proceed in his absence if he did not attend. D25 On 29 December 2022 a decision was made to proceed with the Claimant’s second consultation meeting in his absence.

[245]The claimant emailed Ms Hinchliffe and Mr Noble on 29 December to request a postponement until he was able to attend [607]. He alleged that the decision had already been made. He maintained that he could not attend a first consultation meeting until 1 January. He confirmed that he could not attend any meetings whilst he was off sick.

[246]The meeting on 29 December went ahead in the claimant’s absence. A letter dated 4 January 2023 was sent to the claimant to confirm what had happened [608]. The claimant was invited to a further meeting on 6 January 2023. He was also told that he could provide suggestions in writing and that these would be considered. D26 On 6 January 2023 a decision was made to proceed with the Claimant’s third consultation meeting in his absence.

[247]On 6 January the claimant emailed the second respondent to say he would be returning to work the next day, 7 January [610].

[248]The claimant did not attend the consultation meeting on 6 January. It is unclear whether it went ahead in his absence or not.

[249]The claimant was invited to a further consultation meeting on 11 January 2023, which he attended. At the meeting the claimant was given notice that his employment would terminate by reason of redundancy. The last day of employment was confirmed as 11 January 2023. He was to be paid 6 months’ notice pay but was not required to work his notice [612]. D27 On 12 January 2023 the Second Respondent and Mr Noble forced the Claimant’s resignation from the First Respondent’s Board of Directors.

[250]On 12 January 2023 the second respondent wrote to the Board notifying them that the claimant and Mr Montrasio’s employment had been terminated for reasons of redundancy [1079]. The letter also confirmed that, pursuant to the claimant’s employment contract, his directorship with the company had also been terminated. This was a consequence of the terms of the claimant’s service agreement but the claimant says that if the second respondent had not instigated the redundancy this need not have happened.

[251]The claimant’s letter to the Board confirming his resignation from the Board was dated 12 January 2023 [614]. The correspondence suggests that the claimant subsequently challenged the effectiveness of that resignation from the Board. Mr Noble, however, confirmed that the resignation had taken effect [619-620]. D28 On 13 January 2023 the Claimant was subjected to aggressive and unwanted questioning from Ms Cairns surrounding his obligations to return company property. .

[252]Although the list of issues made allegations about the events of 13 January 2023 and the return of company property by the claimant, this was not addressed in the parties’ witness evidence. I was unable to make any positive findings of fact in relation to this allegation. The witness evidence in this case

[253]I am satisfied that many of the events with which this case is concerned arise out of the claimant’s genuine concern to ensure that he complied with the statutory requirements of his role as PPL holder. When he was subsequently told not to contact members of staff because of the impact that his communications were having on those staff members, he felt that this directly interfered with his ability to comply with his statutory responsibilities as PPL holder. He felt he needed to be able to communicate properly and fully with the others involved in the use of the mice otherwise he would not be able to satisfy himself that the terms of the licence were being complied with. When he was told to put all communications via the second respondent, he felt that this was an unjustified interference with his ability to ensure compliance with the PPL. Hence, he was reluctant to comply with this instruction to communicate via the second respondent. He also felt that the second respondent was not sufficiently well qualified to understand the requirements of the PPL licence and the regulatory framework. Thus, if the second respondent told him that the PPL did not require certain actions in order to ensure compliance, he would not accept this point of view if it did not accord with his own understanding of the regulatory requirements. He felt he was the only person who truly understood what the legal requirements of the PPL were. He was not prepared to compromise on this with others because he felt that, where they disagreed with him, he was right and they were wrong.

[254]I found that neither the claimant nor the second respondent were wholly persuasive witnesses during the Tribunal hearing. Both clearly had their own agendas and had become increasingly entrenched in their views with the passage of time. Both witnesses struggled to answer direct questions directly without deviating from answering the question into a statement of their personal point of view. Hence, it took the whole eight days of allotted final hearing time to hear the evidence and submissions.

[255]Mr Noble’s evidence was relatively persuasive insofar as he was straightforward about the realities of taking academic scientific research and transferring that into a marketable commercial product. He understood the clash of cultures between the scientist and the businessman. I did not accept that he was lying or that the fact that his witness statement was drafted by the second respondent meant that it was untrue. He has sufficient business experience in other companies not to put his name to a witness statement that he considers is incorrect. On the other hand, as Chair of the Board of Directors he would only find out as much about events as the second respondent communicated to him. The role of Chair of the Board is somewhat removed from the day to day operations of the business. It is more concerned with strategic matters than operational ones. The second respondent, as CEO, controlled the flow of information and broadly set the agenda. Whilst the Board may well decide which priorities are to be pursued by the company, the proposals come from the second respondent. This is reflected in the comment, which was attributed to the second respondent, namely, “I am Sutura.” As CEO he maintained control over the flow of information. This is exemplified by his management instruction to the claimant not to communicate with other members of staff. He clearly wished to ensure that all communications went through him. To some extent other staff were left operating in silos. He seems to have been the only person with access to all of the relevant information at any one time. This suited his preferred style of management. From his point of view this would be more operationally efficient. This may well have been a feature of his general management approach. It does not necessarily have anything to do with the claimant or with the claimant’s alleged protected disclosures. However, it would be wrong to ignore the controlling hand of the second respondent in many of the events under consideration in this case.

[256]My impression is that Heather Kelly’s evidence was honestly given. She was a credible witness. She is also a witness who works within a regulated profession. She was therefore aware of her professional obligations and it is evident that this underpinned many of her actions during the period in question. She also had a realistic view of the claimant’s character. She recognised the difficulty that others would experience in keeping him ‘to time and on topic’ but she also recognised his genuine desire to do good. She does not seem to have accepted that he would be deliberately obstructive of management if he did not genuinely think that there was a breach of the legal requirements of the PPL.

[257]My own impression is that the claimant may have been incorrect in his understanding of the regulatory requirements of complying with the PPL vis-a-vis repeated authorisation of rounds of breeding. However, his views and beliefs were, in the main, genuinely and honestly held. I do not accept that he was deliberately trying to mislead the Tribunal as to his beliefs, motivations or the reasons for his actions during the relevant period. The claimant’s oral evidence to the Tribunal sometimes focused on unnecessary levels of detail or veered off into matters that were not directly relevant to the Tribunal proceedings. He can clearly become engrossed in matters which are of particular interest and concern to him. It can evidently be difficult to deflect him from something that he considers important once he has “got the bit between his teeth.” These are likely to be extremely positive attributes in a research scientist but may be more difficult to manage and a potential hindrance in a commercial business environment.

[258]The second respondent, in line with his role as CEO, was fundamentally driven by a desire for the first respondent business to succeed and become profitable. He had strong views about how that could happen and about which individuals were best suited to working on that project and making a success of it. He was very confident that he had the correct solutions for the business and should be allowed to pursue them, relatively unhindered. The impression given is that he could be somewhat ruthless in his pursuit of success. This set the stage for confrontation with the claimant from an early stage in the chronology. The claimant was the ‘owner’ of the Technology, the innovator. To some extent, the Technology was ‘his baby’ and something of a passion project (based as it was upon his genuine desire to do good for a cohort of patients with a debilitating disease and too few treatment options.) The transition from scientific development to business development would inevitably mean that the two men would ‘butt heads’ at some point. Whilst the claimant was respected as a scientist, I am not satisfied that the second respondent particularly respected him in a business context. He was more likely to pursue his own way of doing things because he felt it would be more effective than the claimant’s. If the claimant became an impediment to that then this would have to be managed so that business success came first. Again, this was entirely in keeping with his role and objectives as CEO. From the claimant’s point of view this chronology of events could well have been experienced as something of a ‘hostile takeover’ of his project, even though he knew that he needed assistance in taking his Technology to market from people with a track record of business success in the sector. Hence, he was instrumental in bringing the second respondent into the business but was somewhat dismayed by what this subsequently meant for him as an individual employee within that business.

[259]I also note that I heard evidence from Mrs Kelly that she knows that certain folders of documents were once in existence but they are, apparently, no longer in existence and the only people who had access to them at the relevant time, she says, were the second respondent and his executive assistant. Contrast this with the valid point made by the second respondent that Board papers will have been sent out to members of the Board at the relevant time even if they were not retained by the second respondent or first respondent after the event. The claimant would probably have had access to a lot of this documentation at the time because of his role as a Director of the business.

[260]I also noted which witnesses were called to give evidence to the Tribunal. The claimant has evidently called as many witnesses from the company as he could. One might conclude that the second respondent would be able to call upon the evidence of various employees at the first respondent given that he was employed by the first respondent until the liquidation of the company. He also should have had access to all of the company’s documentation up until October 2024 (which is after the claim form was presented to the Tribunal). It is unclear why the second respondent apparently did not preserve all of the extant evidence pending resolution of these Tribunal proceedings. THE LAW Unfair dismissal

THE LAW

[261]The relevant part of the Employment Rights Act 1996 is section 98 which states (so far as relevant):(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair it is for the employer to show- (a) the reason (or if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it…. (c) is that the employee was redundant, …. (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)- (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

[262]In line with the Employment Rights Act it is for the respondent to prove the reason or principal reason for the dismissal. A ‘reason for dismissal’ has been described as ‘a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee’ (Abernethy v Mott, Hay and Anderson

1974 ICR 323

).Thereafter the burden of proof is neutral as to the fairness of the dismissal (Boys and Girls Welfare Society v Macdonald

1997 ICR 693

, EAT).

[263]Redundancy is defined in section 139(1) Employment Rights Act 1996: (1) ‘For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to — (a) the fact that his employer has ceased or intends to cease — (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business — (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.’

[264]Not every business reorganisation constitutes a redundancy situation. The words of the Act must be applied. In an alleged redundancy dismissal situation the Tribunal must consider: i) was the employee dismissed? ii) if so, had the requirements of the employer’s business for employees to carry out work of a particular kind ceased or diminished, or were they expected to cease or diminish? iii) if so, was the dismissal of the employee caused wholly or mainly by the cessation or diminution? There are no grounds for importing into the statutory wording a requirement that there must be a diminishing need for employees to do the kind of work for which the claimant was employed. The only question to be asked when determining stage (ii) of the three-stage test is whether there was a diminution in the employer’s requirement for employees (rather than the individual claimant) to carry out work of a particular kind. It is irrelevant at this stage to consider the terms of the claimant’s contract. The terms of the contract are only relevant at stage (iii) when determining, as a matter of causation, whether the redundancy situation was the operative reason for the employee’s dismissal (Safeway Stores plc v Burrell

1997 ICR 523

, Murray and anor v Foyle Meats Ltd

1999 ICR 827

[265]For a dismissal to be by reason of redundancy a redundancy situation must exist. However, it is not for the Tribunal to investigate the reasons behind such situations. Tribunals are not at liberty to investigate the commercial and economic reasons behind a decision to close a business. Tribunals can question whether the decision to dismiss was genuinely on the ground of redundancy and can therefore require that the decision to make redundancies was based on proper information. A Tribunal is only entitled to ask whether the decision to make redundancies was genuine, not whether it was wise (Hollister v National Farmers’ Union

1979 ICR 542

, James W Cook and Co (Wivenhoe) Ltd v Tipper and ors

1990 ICR 716

[266]The fact that a redundancy situation existed does not automatically mean that a particular employee was dismissed by reason of redundancy.

[267]In Langston v Cranfield University

1998 IRLR 172

, the EAT considered that the principles of law relating to unfair redundancy dismissals were ‘encapsulated’ in the words of Lord Bridge in Polkey. It was therefore ‘implicit’ that unless the parties had agreed otherwise, an unfair redundancy dismissal claim incorporates unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer, whether or not each of these issues was specifically raised before the Employment Tribunal. Thus, it was incumbent upon the tribunal to consider each issue, in much the same way as it would consider each of the three elements of the test in British Home Stores Ltd v Burchell in a case of dismissal for misconduct. In Remploy Ltd v Abbott and ors EAT 0405/14. The EAT held that an Employment Tribunal had erred in granting the claimants’ late application to introduce further issues concerning the reasonableness of the respondent’s attempts to seek alternative employment for them. The Tribunal had been wrong to assume that it was bound by the decision in Langston to investigate in any case of unfair redundancy dismissal, as implicit in that claim, that the unfairness incorporated unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer, even if not specifically pleaded or raised as issues by the claimants. The EAT commented that Langston should not be taken as authority for the proposition that in any unfair redundancy dismissal case where a point such as failure to seek alternative employment on the part of an employer has not been raised, the Tribunal is required to take the point of its own motion.

[268]In Osinuga v BPP University Ltd Legal Team

2022 EAT 53

, the EAT opined that there was no inconsistency between the Langston and Remploy decisions. Langston established that a Tribunal in a redundancy case should consider the issues of fair selection, fair consultation and alternative employment unless the parties had explicitly or implicitly excluded them by agreement. It further demonstrated that a mere omission to raise any of those points does not, by itself, mean that they are not in issue. Remploy, by contrast involved very substantial multi-party litigation, which was subject to intensive case management by the Tribunal with the assistance of highly qualified representatives over a long period. Where efforts had been made to produce lists of issues, and these did not include the Polkey issues, it was clearly right to regard that omission as being by implicit agreement.

[269]In carrying out a redundancy exercise, an employer should begin by identifying the group of employees from which those who are to be made redundant will be drawn, the ‘pool for selection.’ It is to these employees that an employer will apply the chosen selection criteria to determine who will be made redundant. There will be some redundancy situations where, because of the complete closure of the workplace, business or unit, selection, as such, will not be necessary. However, in all cases, the Tribunal must be satisfied that the employer acted reasonably and, in considering whether this was so, the following factors may be relevant:• whether other groups of employees are doing similar work to the group from which selections were made

• whether employees’ jobs are interchangeable

• whether the employee’s inclusion in the unit is consistent with his or her previous position, and

• whether the selection unit was agreed with any union.

[270]The pool is usually composed of employees doing the same or similar work. A Tribunal will judge the employer’s choice of pool by asking whether it fell within the range of reasonable responses available to an employer in the circumstances. Tribunals must take care not to substitute their own view for that of the employer. If employees are to be chosen for redundancy dismissal from among a group of employees the Tribunal will consider the fairness of the selection criteria. The current case did not involve a ‘pool for selection’ and the application of selection criteria. Consequently, I do not set out the applicable case law guidance on assessing the fairness of the selection criteria or the selection process. In this claimant’s case there was only one CTO and it has not been suggested that the claimant should have been pooled with others and subjected to a scoring/selection process.

[271]Whether or not there is a selection process, the employee is entitled to a fair process of consultation and warning prior to termination on grounds of redundancy. As stated in Polkey the employer will normally not act reasonably unless he warns and consults any employees affected (or their representative), adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation. A procedural impropriety in carrying out a dismissal would generally render the dismissal unfair. The only escape available to an employer is where it could reasonably have concluded that a proper procedure would be ‘utterly useless’ or ‘futile.’ Whether or not this was the case is for the Employment Tribunal to answer in light of the circumstances known to the employer at the time of the dismissal.

[272]The subject matter of consultation will depend upon the specific circumstances, but best practice suggests that it should normally include:• an indication/warning that the individual has been provisionally selected for redundancy

• confirmation of the basis for selection

• an opportunity for the employee to comment on his or her redundancy selection assessment

• consideration as to what, if any, alternative positions of employment may exist, and

• an opportunity for the employee to address any other matters he or she may wish to raise.

[273]The consideration of alternative employment for employees selected for redundancy will often be an important part of a fair and reasonable redundancy procedure. When a question of alternative employment arises in the context of an unfair dismissal claim the reasonableness test under S.98(4) requires a Tribunal to consider whether the employer’s actions lay within the range of responses of a reasonable employer. If the Tribunal decides the matter by determining what it objectively considers to have been reasonable in the circumstances, it will fall into a substitutionary mindset and err. In Thomas and Betts Manufacturing Co v Harding

1980 IRLR 255

, the Court of Appeal ruled that an employer should do what it can so far as is reasonable to seek alternative work. Since the reasonableness of a dismissal is dependent on the situation known to the employer at the time of the dismissal, the appearance of an alternative job after the employee has been dismissed cannot make the dismissal unfair.

[274]In considering the so-called ‘band of reasonable responses’ the Tribunal must not substitute its own view for that of the reasonable employer (Iceland Frozen Foods Ltd v Jones

1983 ICR 17

, EAT; Foley v Post Office; HSBC Bank plc (formerly Midland Bank plc) v Madden

2000 ICR 1283

, CA). As stated in the Jones case: ‘We consider that the authorities establish that in law the correct approach for the… tribunal to adopt in answering the question posed by [S.98(4)] is as follows:(1) the starting point should always be the words of [S.98(4)] themselves;

(2) in applying the section [a] tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the… tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer’s conduct [a]tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the… tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’

[275]The band of reasonable responses applies to the question of the procedural fairness of the dismissal as well as the substantive fairness of the dismissal. (J Sainsbury plc v Hitt

2003 ICR 111

, CA; Whitbread plc (t/a Whitbread Medway Inns) v Hall

2001 ICR 699

, CA.)

[276]The reasonableness test is based on the facts or beliefs known to the employer at the time of the dismissal. A dismissal will not be made reasonable by events which occur after the dismissal has taken place (W Devis and Sons Ltd v Atkins

1977 ICR 662

, HL.) Protected Disclosures

[277]A protected disclosure is defined by section 43A Employment Rights Act 1996 as a qualifying disclosure made by a worker in accordance with any of sections 43C to 43H. In this case the alleged disclosures were made to the claimant’s employer in line with section 43C.

[278]Section 43B of the Employment Rights Act 1996 defines a qualifying disclosure thus: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:a. that a criminal offence has been committed, is being committed or is likely to be committed,

b. that a person has failed, is failing, 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 other matter falling within one of the preceding paragraphs has been or is likely to be deliberately concealed. …. (5) In this Part “the relevant failure,” in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).

[279]In the current case the claimant is relying on section 43B(1)(a), (b) and (f) (crime, legal obligation, deliberate concealment.)

[280]As set out in Williams v Brown AM

UKEAT/0024/19

there are five separate stages to applying the necessary tests: “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 subparagraphs (a) to (f). Fifthly, if the worker does hold such a belief it must be reasonably held.” Disclosure

[281]In order to make a disclosure an employee simply has to communicate the information by some effective means in order for the communication to constitute a disclosure of that information. The assessment of whether there has been a disclosure of information in a given case will be fact sensitive. 282. ‘Information’ in the context of section 43B is capable of covering statements which might also be characterised as allegations (Kilraine v London Borough of Wandsworth

[2018] ICR 1850

). ‘Information’ and ‘allegation’ are not mutually exclusive categories of communication. Rather, a statement which is general and devoid of specific factual content cannot be said to be a disclosure of information tending to show a ‘relevant failure.’ The decision in Kilraine stressed that the word ‘information’ in section 43B(1) has to be read with the qualifying phrase ‘tends to show’. The worker must reasonably believe that the information ‘tends to show’ that one of the relevant failures has occurred, is occurring or is likely to occur. In order for a statement or disclosure to be a qualifying disclosure, it must have sufficient factual content to be capable of tending to show one of the matters listed in section 43B(1)(a)–(f).

[283]The context of any disclosure may also be relevant in determining the content of the disclosure. Meaning can be derived from context. Disclosures may also have to be looked at cumulatively. Information previously communicated by a worker to an employer could be regarded as ‘embedded’ in a subsequent communication. Two or more communications taken together can amount to a qualifying disclosure even if, taken on their own, each communication would not (Norbrook Laboratories (GB) Ltd v Shaw

[2014] ICR 540

). Whether two communications are to be read together is generally a question of fact (Simpson v Cantor Fitzgerald Europe

[2021] ICR 695

). Qualifying disclosures

[284]A qualifying disclosure does not have to relate to a relevant failure of the employer that employs the worker making the disclosure. It may relate to the relevant failure of a colleague, a client or other third party.

[285]Section 43B(1) requires that, in order for any disclosure to qualify for protection, the disclosure must, in the ‘reasonable belief’ of the worker: (1) be made in the public interest, and

(2) tend to show that one of the six relevant failures has occurred, is occurring, or is likely to occur.

[286]The employee has to have a reasonable belief that that the information he or she disclosed tends to show one of the six relevant failures. This has both a subjective and an objective element. If the worker subjectively believes that the information that he or she discloses does tend to show one of the listed matters, and the statement or disclosure he or she makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his or her belief will be a reasonable belief. The employee’s belief has to be objectively reasonable taking into account the personal circumstances of the discloser.

[287]The worker’s reasonable belief must be that the information disclosed tends to show that a relevant failure has occurred, is occurring, or is likely to occur, rather than that the relevant failure has occurred, is occurring, or is likely to occur. The worker is not required to show that the information disclosed led him or her to believe that the relevant failure was established, and that that belief was reasonable. Rather, the worker must establish only reasonable belief that the information tended to show the relevant failure.

[288]The focus is on what the worker in question believed rather than on what a hypothetical reasonable worker might have believed in the same circumstances. This does not mean that the test is entirely subjective. Section 43B (1) requires a reasonable belief of the worker making the disclosure. This introduces a requirement that there should be some objective basis for the worker’s belief. In Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

, EAT it was held that reasonableness under section 43B(1) involves applying an objective standard to the personal circumstances of the discloser, and that those with professional or ‘insider’ knowledge will be held to a different standard than laypersons in respect of what it is ‘reasonable’ for them to believe. The subjective element is that the worker must believe that the information disclosed tends to show one of the relevant failures and the objective element is that that belief must be reasonable (Phoenix House Ltd v Stockman

[2017] ICR 84

). The EAT in Korashi v Abertawe Bro Morgannwg University Local Health Board stated that the focus on ‘belief’ in section 43B establishes a low threshold. However, the reasonableness test clearly requires the belief to be based on some evidence. Unfounded suspicions, uncorroborated allegations etc will not be enough to establish a reasonable belief.

[289]There can be a qualifying disclosure of information even if the worker is wrong (Darnton v University of Surrey

[2003] ICR 615

). (See also Babula v Waltham Forest College

[2007] ICR 1026

.) Truth and accuracy are still relevant considerations in deciding whether a worker has a reasonable belief. Determination of the factual accuracy of the worker’s allegations will often help to determine whether the worker held the reasonable belief that the disclosure in question tended to show a relevant failure. It may be difficult to see how a worker can reasonably believe that an allegation tends to show that there has been a relevant failure if he or she believes that the factual basis of the allegation is false.

[290]The worker must reasonably believe that his disclosure tends to show that one of the relevant failures has occurred, is occurring or is likely to occur. Likely should be construed as requiring more than a possibility or a risk, that an employer or other person might fail to comply with a relevant legal obligation. The information disclosed should “in the reasonable belief of the worker at the time it is disclosed, tend to show that it is probable or more probable than not that the employer will fail to comply with the relevant legal obligation’ (Kraus v Penna Plc and anor

[2004] IRLR 260

). Public interest

[291]The public interest element of the test is also qualified by the requirement of ‘reasonable belief.’ In order for any disclosure to qualify for protection the person making it must have a ‘reasonable belief’ that the disclosure ‘is made in the public interest.’ There is no statutory definition of the public interest. The focus is on whether the worker reasonable believed that the disclosure was in the public interest rather than on the objective question of whether the public interest test was in fact satisfied.

[292]In Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed (Public Concern at Work intervening)

[2018] ICR 731

the Court of Appeal rejected the argument that for a disclosure to be in the public interest it must serve the interests of persons outside the workplace and that mere multiplicity of workers sharing the same interest was not enough. To be in the public interest the disclosure had to serve a wider interest than the private or personal interest of the worker making the disclosure. Even where the disclosure relates to a breach of the worker’s own contract of employment there may still be features of the case that make it reasonable to regard disclosure as being in the public interest. The following factors might be relevant:(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

(d) the identity of the alleged wrongdoer. The number of people sharing the interest is not determinative. The fact that at least one other person shared the interest was insufficient in itself to convert it into a matter of public interest. Conversely, it was wrong to say that the fact that it was a large number of people whose interests were served by the disclosure of a breach of the contract of employment could never, in itself, convert a personal interest into a public interest.

[293]In Underwood v Wincanton Plc

EAT/0163/15

the EAT held that it was arguable that the public interest test was satisfied by a group of employees raising a matter specific to their terms of employment. ‘The public’ can refer to a subset of the general public, even one composed solely of employees of the same employer. In Morgan v Royal Mencap Society

[2016] IRLR 428

it was held that it was reasonably arguable that an employee could consider a health and safety complaint, even one where the employee is the principal person affected, to be made in the wider interests of employees generally.

[294]There may be a difference between a matter of public interest and a matter that is of interest to the public. There may be subjects that most people would rather not know about that may be matters of public interest (Dobbie v Felton t/a Feltons Solicitors 2021 [IRLR] 679, EAT). A disclosure could be made in the public interest even though the public will never know that it has been made, and a disclosure could be made in the public interest even if it relates to a specific incident without any likelihood of repetition. The absence of a statutory definition of ‘public interest’ does not mean that it is not to be determined by a principled analysis. The four factors identified in Nurmohamed will often be of assistance. Some private employment disputes will more obviously raise public interest matters than others.

[295]For a disclosure to qualify the worker need only have a reasonable belief that his or her disclosure is made in the public interest. The Tribunal does not have to determine the objective question of what the public interest is, and whether a disclosure served it. The Tribunal has to consider what the worker considered to be in the public interest; whether the worker believed that the disclosure served that interest; and whether that belief was held reasonably. As reasonableness is judged to some extent objectively, it is open to a Tribunal to find that a worker’s belief was reasonable on grounds which the worker did not have in mind at the time. Tribunals should be careful not to substitute their own view of whether the disclosure was in the public interest for that of the worker (Nurmohamed). That does not mean that it is illegitimate for the Tribunal to form its own view on that question as part of its thinking but only that that view is not, as such, determinative. The necessary belief is simply that the disclosure is in the public interest and the particular reasons why the worker believes that to be so are not of the essence. A disclosure does not cease to qualify simply because the worker seeks to justify it after the event by reference to specific matters which the Tribunal finds were not in his or her head at the time. A Tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his or her belief but nevertheless find it to have been reasonable for different reasons which he or she had not articulated at the time: all that matters is that his or her (subjective) belief was (objectively) reasonable.

[296]Belief in the public interest need not be the predominant motive for making the disclosure or even form part of the worker’s motivation. The worker’s motive might, however, be one of the individual circumstances taken into account by a Tribunal when considering whether the worker reasonably believed the disclosure to be in the public interest. A worker may seek to justify an alleged qualifying disclosure by reference to matters that were not in his or her head at the time he or she made it, but if he or she cannot give credible reasons for why he or she thought at the time that the disclosure was in the public interest, that may cast doubt on whether he or she really thought so at all. Belief in a public interest element would not have to form any part of the worker’s motivation so long as the worker has a genuine (and reasonable) belief that the disclosure is in the public interest. Breach of a legal obligation

[297]Section 43B(1)(b) is capable of covering not only those obligations set down in statute and secondary legislation but also any obligation imposed under the common law (e.g. negligence, nuisance and defamation), as well as contractual obligations and those derived from administrative law. It can include breaches of legal obligations arising under the employee’s own contract of employment (subject to the public interest element of the test also being met.) It does not cover a breach of guidance or best practice, or something that is considered merely morally wrong. A worker will not be deprived of protection in relation to a disclosure simply because he or she is wrong about what the law requires.

[298]Save in obvious cases, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation: Blackbay Ventures Ltd v Gahir

[2014] IRLR 416

, EAT followed in Eiger Securities LLP v Korshunova

[2017] IRLR 115

, EAT.

[299]A worker need not always be precise about what legal obligation he or she envisages is being breached or is likely to be breached for the purpose of a qualifying disclosure under section 43B(1)(b). In cases where it is ‘obvious’ that some legal obligation is engaged then the absence of specificity will be of little evidential relevance. In less obvious cases, a failure by the worker to at least set out the nature of the legal wrong he or she believes to be at issue might lead a Tribunal to conclude that the worker was merely setting out a moral or ethical objection rather than a breach of a legal obligation. The word “legal” must be given its natural meaning, with the result that the act that the individual making the disclosure thought that the employer's actions were morally wrong, professionally wrong or contrary to its own internal rules may not be sufficient: Eiger Securities LLP v Korshunova. Method of disclosure

[300]In order to be a protected disclosure, the qualifying disclosure must be made in the correct manner as set out in sections 43C-43H. A worker who makes a disclosure to their employer has fewer hurdles to get over than one who makes the disclosure to an outsider. A disclosure made to a worker’s employer will be a protected disclosure s43C(1)(a). Detriment

[301]Section 47B of the Employment Rights Act 1996 provides that a worker has the right not to be subjected to any detriment by his or her employer, a colleague acting in the course of employment or an agent acting with the employer’s authority on the ground that the worker made a protected disclosure. The requirements for a successful claim are that:(a) the claimant must have made a protected disclosure;

(b) he must have suffered some identifiable detriment;

(c) the employer, worker or agent must have subjected the claimant to that detriment by some act, or deliberate failure to act; and

(d) the act or deliberate failure to act must have been done on the ground that the claimant made a protected disclosure.

[302]Section 47B (1) does not apply where the worker is an employee and the detriment complained of amounts to dismissal. Any such complaint instead falls under section 103A which renders a dismissal automatically unfair if the sole or principal reason for it was that the employee made a protected disclosure. Where a worker is ‘dismissed’ in that his contract for services or working relationship is terminated because he or she made a protected disclosure he or she can claim against the employer for that dismissal under section 47B.

[303]A detriment is unlawful under section 47B if done ‘on the ground’ of a protected disclosure, whereas dismissal is unfair under section 103A only if the protected disclosure is the reason or principal reason for it. A section 47B claim may be established where the protected disclosure is one of many reasons for the detriment, whereas section 103A requires the disclosure to be the primary reason for a dismissal.

[304]Section 47B provides protection from any detriment. There is no test of seriousness or severity. It is not necessary for there to be physical or economic consequences for it to amount to a detriment. What matters is that the complainant is shown to have suffered a disadvantage of some kind. The question is whether an employee in the claimant’s position could reasonably regard the actions taken as detriments; this is a low threshold. However, an unjustified sense of grievance cannot amount to a detriment: Shamoon v Chief Constable of RUC

[2003] UKHL 11

[35, 105].

[305]The protection is against acts and deliberate failures to act. A deliberate failure to act shall be treated as done when it was decided upon (section 48(4)(b)). Causation (detriment cases)

[306]Causation under section 47B has two elements:(a) was the worker subjected to the detriment by the employer, other worker or agent?

(b) was the worker subjected to that detriment because he or she had made a protected disclosure?

[307]The question of causation is to be applied to the employer’s act or omission not the ensuing detriment. What was the reason for the respondent’s act or omission? (Not, what was the reason for the detriment?)

[308]In any detriment claim it is for the employer to show the ground on which any act, or deliberate failure to act, was done (section 48(2)). This does not mean that, once a claimant asserts that he or she has been subjected to a detriment, the respondent must disprove the claim. Rather, it means that once all the other necessary elements of a claim have been proved on the balance of probabilities by the claimant (i.e. that there was a protected disclosure, there was a detriment, and the respondent subjected the claimant to that detriment) the burden will shift to the respondent to prove that the worker was not subjected to the detriment on the ground that he or she had made the protected disclosure.

[309]If the Tribunal has rejected the reason advanced by the employer, the Tribunal is not then bound to accept the reason advanced by the employee: it can conclude that the true reason for dismissal was one that was not advanced by either party (Kuzel v Roche Products Ltd

2008 ICR 799

, Ibekwe v Sussex Partnership NHS Foundation Trust EAT 0072/14).

[310]It may be appropriate to draw inferences as to the real reason for the employer’s action on the basis of the Tribunal’s principal findings of fact. The EAT summarised the proper approach to drawing inferences in a detriment claim in International Petroleum Ltd and ors v Osipov and ors EAT 0058/17:(a) The burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure that he or she made.

(b) By virtue of section 48(2), the employer (or worker or agent) must be prepared to show why the detrimental treatment was done. If it (or he or she) does not do so, inferences may be drawn against the employer (or worker or agent) (see London Borough of Harrow v Knight

2003 IRLR 140

, EAT)

(c) However, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found.

[311]In order for liability under section 47B to be established the worker must show that the detriment arises from the act or deliberate failure to act by the employer. Only then can the worker say that he or she has been ‘subjected to’ the detriment in question.

[312]Section 47B will be infringed if the protected disclosure materially (in the sense of more than trivially) influences the employer’s treatment of the whistle-blower (Fecitt and ors v NHS Manchester (Public Concern at Work intervening)

[2012] ICR 372

). The ‘material influence’ test is to be applied in section 47B detriment cases whereas in a section 103A unfair dismissal case the test is still to ask what the sole or principal reason for the dismissal actually was.

[313]It is not necessary to consider how a real or hypothetical comparator who has not made a protected disclosure was or would have been treated when determining whether the protected disclosure was the ‘ground’ for the treatment complained of (even though it may be a useful exercise).

[314]The motivation need not be malicious. It does not matter whether the employer intends to do the whistle-blower harm, so long as the whistleblower has, as a matter of fact, been subjected to a detriment on the ground of the protected disclosure.

[315]In general, in a detriment claim, the starting point is that it is necessary to examine the thought processes of the alleged wrongdoer. Does the person who actually subjects the worker to the detriment know of the protected disclosure so that the protected disclosure can have materially influenced his decision to subject the claimant to the detriment? The Tribunal must generally focus on the mental processes of the individual decisionmaker and so cannot find an unlawful detriment if the decisionmaker did not know about (and so could not have been influenced by) the protected disclosure.

[316]That general rule has sometimes been said to be displaced in cases where a manipulator with an unlawful motivation is in the ‘hierarchy of responsibility’ above the employee and decides to manipulate an innocent decisionmaker into subjecting the employee to a detriment. The manipulator procures the detriment via the innocent decisionmaker (who is not aware of the protected disclosure.) This proposition was primarily developed in the context of a claim for automatically unfair dismissal pursuant to section 103A (see the case of Royal Mail Group v Jhuti

[2019] UKSC 55

). The decisions in William v Lewisham and Greenwich NHS Trust

[2024] EAT 58

, and Malik v Cenkos Securities plc

UKEAT/0100/17

suggest that this principle does not apply in cases of whistleblowing detriment under section 47B. A ‘composite approach’ is not taken in detriment cases (as compared to dismissal cases.) The person who subjects the claimant to the detriment needs to be aware of the protected disclosure and needs to act because of it, in the sense of being materially influenced by it. It is not enough that they are an innocent decision maker who has been manipulated by someone else (who is acting because of the protected disclosure). There is one further case at EAT level which suggests that a composite approach might be possible where there is a ‘collective memory’ or ‘management lore’ about the protected disclosures within an organisation which may permeate the approach of the organisation even if named individuals are not directly aware of the protected disclosure itself (First Greater Western Ltd v Moussa

[2024] EAT 82

). Some of the differences in approach by the appellate courts may be attributable to the different bases of liability under section 47B (1) and section 47B(1A). A composite approach may be less likely to be adopted against an individual alleged wrongdoer than as against an employing company or business. (See also Ahmed v City of Bradford Metropolitan District Council and ors

UKEAT/0145/14/KN

and Western Union Payment Services UK Ltd v Anastasiou.)

[317]An employee’s conduct in making a protected disclosure may, in certain circumstances, be separable from the disclosure itself (Bolton School v Evans

[2007] ICR 641

, Kong v Gulf International Bank (UK) Ltd

2022 EWCA Civ 941

). The employer can act lawfully if it relies only on the nonprotected aspects of a whistle-blower’s conduct even when that conduct is closely connected with the protected disclosures themselves. For example, in Panayiotou v Chief Constable of Hampshire Police and anor 2014 ICR D23 EAT the reason for the detriments and dismissal was not the fact that the claimant had made protected disclosures but rather the manner in which he pursued his complaints. The Tribunal found that he would ‘campaign relentlessly’ if he was dissatisfied with the action taken by his employer following his disclosures and would strive to ensure that all complaints were dealt with in the way he considered appropriate. As a result the employer had to devote a great deal of management time to responding to his correspondence and complaints.

[318]However, in some cases it will be impossible to draw a line between the disclosure and the manner of that disclosure. In Kong v Gulf International Bank UK Ltd [2022] Simler LJ said in the leading Judgment: 52. The principle of separability recognised in Martin (in a victimisation context), was expressly approved by this court in Page v Lord Chancellor

[2021] EWCA Civ 254

[2021] ICR 912

(“Page”). In Page Underhill LJ confirmed as correct the principle recognised in Martin at [22], and in the analogous trade union activities cases, stating at [56] that in a case where it applies, the making of a protected complaint “is the context in which the reason for dismissal (or other detriment) arises, but it is not the reason itself.” [And referring to Fecitt] 56. I would endorse and gratefully adopt the passages I have cited as correct statements of law. They recognise that there may in principle be a distinction between the protected disclosure of information and conduct associated with or consequent on the making of the disclosure. For example, a decision-maker might legitimately distinguish between the protected disclosure itself, and the offensive or abusive manner in which it was made, or the fact that it involved irresponsible conduct such as hacking into the employer's computer system to demonstrate its validity. In a case which depends on identifying, as a matter of fact, the real reason that operated in the mind of a relevant decision-maker in deciding to dismiss (or in relation to other detrimental treatment), common sense and fairness dictate that tribunals should be able to recognise such a distinction and separate out a feature (or features) of the conduct relied on by the decisionmaker that is genuinely separate from the making of the protected disclosure itself. In such cases, as Underhill LJ observed in Page, the protected disclosure is the context for the impugned treatment, but it is not the reason itself. Thus the “separability principle” is not a rule of law or a basis for deeming an employer's reason to be anything other than the facts disclose it to be. It is simply a label that identifies what may in a particular case be a necessary step in the process of determining what as a matter of fact was the real reason for impugned treatment.”

[319]The Tribunal must take care to ensure that the principle of separability is properly applicable on the facts of the case and that there is a genuine distinction to be drawn between the disclosure and the manner in which it is made. (See also comments of HHJ Eady QC on separability in the context of a section 103A claim in MidEssex Hospital Services NHS Trust v Smith EAT 0239/17 where an employee was generally seen as a nuisance by the managers involved in the relevant decisions. In the context of the Claimant s.103A’s claim HHJ Eady QC (as she then was) stated [44]: “The question that then arose was which was the principal reason for the dismissal? Was it the Claimant’s whistleblowing or was it really the opportunity to get rid of someone who was seen as a nuisance for reasons other than his whistleblowing? If the latter, the dismissal would still have been unfair but not for a prohibited reason (or, at least, not a prohibited reason that was before the ET).”)

[320]A disclosure can be protected under the statutory scheme even if the information disclosed turns out to be inaccurate: the question is not one of truth or accuracy but whether the worker reasonably believed that the information disclosed tended to show a relevant failure. Furthermore, there is no requirement that a disclosure must be made in ‘good faith’ in order to attract protection. It follows that, where a worker is subjected to a detriment for having made a false allegation, but that allegation is held to amount to a protected disclosure because the necessary reasonable belief in its accuracy was present, then the detriment will fall foul of S.47B.” Causation in section 103A dismissal cases

[321]In Royal Mail Group Ltd v Jhuti

[2020] ICR 731

it was held that in a section 103A case of automatic unfair dismissal the Tribunal need generally look no further than the reasons given by the decision maker in order to determine the reason for the dismissal. However, in a so-called ‘Iago’ or ‘tainted information’ case a person in the hierarchy of responsibility above the decisionmaker determines that for reason A (the protected disclosure) the employee should be dismissed but that this reason should be hidden from the actual decisionmaker behind another, invented reason (reason B). The decisionmaker then adopts reason B and dismisses for reason B with no personal knowledge of reason A. In such a case the Tribunal should look behind the decisionmaker’s reason (B) to determine that hidden reason A (the protected disclosure) was the reason for dismissal rather than the apparent, innocent reason B.

[322]The line of reasoning in Jhuti only needs to be used where an innocent decisionmaker is manipulated into dismissing a whistle-blower for an apparently fair reason and is ‘unaware of the machinations of those motivated by the prohibited reason.’ It does not apply where the decisionmaker is aware of the protected disclosure and is thus not deceived into dismissing for an unrelated reason. Time Limits

[323]For the purposes of section 111 (unfair dismissal), a claim must be brought before the end of the period of three months beginning with the effective date of termination.

[324]For the purposes of Section 48 of the ERA 1996 (whistleblowing detriments), a claim must be brought to the Tribunal before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where the act or failure is part of a series of acts or failures, the last of them. In deciding whether a detriment case is brought in time, Tribunals must focus on the date of the act giving rise to a detriment, not the consequences that follow.

[325]Where the claim is for detriment arising from an omission (a failure to act), time runs from the date of the deliberate decision not to do the act. In the absence of actual evidence of a decision not to act, the decision would be treated as taken "when the period expires within which [the employer] might reasonably have been expected to do the failed act" (section 48(4)(b).)

[326]In Ikejiaku v British Institute of Technology

[2020] UKEAT 0243_19_0705

a basic distinction was noted between a one-off act with continuing consequences i.e. a once and for all act and a continuing act which extends over a whole period e.g. a rule or policy by reference to which decisions are made from time to time i.e. decisions under the same policy continue the act.

[327]For alleged acts of detriment to form part of "a series of similar acts", there must be "some relevant connection between the acts" (Arthur v London Eastern Railway

[2006] EWCA Civ 1358

). In the Court of Appeal. Mummery LJ said: “…in order to determine whether the acts are part of a series some evidence is needed to determine what link, if any, there is between the acts in the 3-month period and the acts outside the 3 month period….It is necessary to look at all the circumstances surrounding the acts. Were they all committed by fellow employees? If not, what connection, if any, was there between the alleged perpetrators? Were their actions organised or concerted in some way? It would also be relevant to inquire why they did what is alleged.”

[328]When considering whether C’s allegations are capable of forming conduct extending over a period, the Tribunal must assess the substance of the allegations and whether there is any real connection or nexus between them. Whether the same individuals were involved will be relevant but not conclusive: Aziz v FDA

[2010] EWCA Civ 304

(in the context of discrimination claims).

[329]It is also essential that each of the acts forming part of the alleged series is, in itself, unlawful (Oxfordshire County Council v Meade

UKEAT/0410/14

). In Meade, detriments inflicted after a particular date were held not to be by reason of whistleblowing, but rather another disagreement between the parties, and so they could not be used to continue the series for the purposes of calculating the time limit to bring a whistleblowing claim. In Meade it was stated, “In order to form part of a continuing act for the purposes of both whistleblowing and victimization claims, [each] of the acts relied upon must be unlawful.”

[330]For a claim to be in time under s 48(3)(a), the act or failure to act from which time begins to run must be actionable under s 47B, i.e. the act or deliberate failure must be proved to have been done on the ground that the worker made a protected disclosure (Royal Mail Group Ltd v Jhuti UKEAT/0020/16RN at para 41). As Simler J stated, “If no contravening (or actionable) detrimental act is proven then the issue of time is irrelevant'. This is true whether the act or failure in question is a sole act or failure or the last in a series.” The EAT expressly rejected the contention by the claimant that where there is a series of acts none of them need be actionable. Simler J stated (at para 43): ''In our judgment, at least the last of the acts or failures to act in the series must be both in time and proven to be actionable if it is to be capable of enlarging time under s 48(3)(a) ERA. Acts relied on but on which the claimant does not succeed, whether because the facts are not made out or the ground for the treatment is not a protected disclosure, cannot be relevant for these purposes.'' She continued: “45. That does not mean that a claimant must succeed in establishing as actionable each and every act relied on as part of a series. In this regard we agree with and adopt, with one important caveat, the observations of HHJ Hand QC in Ekwelem v Excel Passenger Service Ltd

UKEAT/0438/12

. At paragraph 31 he said in the context of a series of unlawful deductions from wages, some of which had been held to be lawful deductions: "A series does not cease to be a series because on analysis and on judgment it is concluded that some part of it is not unlawful. This was asserted to be a continuing act, and, in my judgment, it was a continuing act. The fact that the claimant cannot succeed on some part of it does not mean that the case was time-barred." The caveat we add is that there must be at least one in-time proven act that infringes the relevant provision. 46. In the circumstances, we have concluded that since the Claimant failed to prove that there were any actionable detrimental acts that post-dated 30 March 2014, there were no ongoing similar acts or failures to act that could form part of a series for the purposes of enlarging time under s.48(3)(a).”

[331]In both types of claim, the time limit can be extended if:a. It was not reasonably practicable to present the claim within the three month time limit, and

b. The claim was presented within such further period as the Tribunal considers reasonable.

[332]The burden of proof for establishing that it was not reasonably practicable to present the claim in time is on the claimant. The Court of Appeal in Marks & Spencer plc v Williams-Ryan

[2005] EWCA Civ 470

set out a number of legal principles distilled from a review of case law:a. Section 111(2) should be given a liberal interpretation in favour of the employee.

b. Regard should be had to what, if anything, the employee knew about the right to complain to a tribunal and of the time limit for doing so.

c. Regard should also be had to what knowledge the employee should have had, had they acted reasonably in the circumstances. Knowledge of the right to make a claim does not, as a matter of law, mean that ignorance of the time limits will never be reasonable. It merely makes it more difficult for the employee to prove that their ignorance was reasonable.

d. Where a claimant retains a solicitor and fails to meet the time limit because of the solicitor's negligence, the claimant cannot argue that it was not reasonably practicable to submit the claim in time.

[333]The test of reasonable practicability has been referred to as a question of reasonable feasibility. Factors relevant to the Tribunal’s exercise when considering whether a claim is in time were summarised in Lowri Beck Services Ltd v Brophy

[2019] EWCA Civ 2490

as follows:a. the test should be given a liberal interpretation in favour of the employee

b. the statutory language is not to be taken as referring only to physical impracticability and for that reason might be paraphrased as whether it was ‘reasonably feasible’ for the employee to present his or her claim in time

c. if an employee misses the time limit because he or she is ignorant about the existence of a time limit, or mistaken about when it expires in his or her case, the question is whether that ignorance or mistake is reasonable

d. if the employee retains a skilled adviser, any unreasonable ignorance or mistake on the part of the adviser is attributed to the employee

e. the test of reasonable practicability is one of fact and not of law. CONCLUSIONS The protected disclosures PD1: On 5 May 2022 the Claimant was copied into an email to the Home Office from the First Respondent’s Research and Development Director, Mr Amar Rahi. Attached to this email was an animal license ‘breach of severity’ notice (Standard Condition 18) dated 3 May 2022. The claimant reminded Mr Rahi that as PPL holder, the First Respondent’s animal testing programme was not legally permitted to operate unless it was being overseen and managed by him (the Claimant) directly in accordance with sections 2B and 2C of the Animal (Scientific Procedure) Act 1986. The Claimant made the Second Respondent aware of this information.

CONCLUSIONS

[334]The relevant findings of fact are set out at paragraph 80-93 above. Relevant context is set out from paragraph 68 onwards.

[335]The alleged disclosure was made orally. Whilst some latitude can be given to a litigant seeking to prove what was said at the time of the alleged disclosure when it is oral rather than in writing, that latitude cannot be without limit. The claimant does still have to prove the basics in terms of the information he disclosed at the relevant time. Without those facts being established it is impossible to assess what the disclosure ‘tended to show’ and whether the claimant’s belief about what it tended to show was reasonable. Even giving due latitude, I am not satisfied, on the facts, that the claimant has really proved he said words which could be said to convey something about a breach of the regulations (as opposed to reminding someone of the requirements of the regulations.)

[336]On reviewing the evidence I have concluded that:a. The claimant did contact Mr Rahi and reiterate/remind him that the animal testing programme was not legally permitted to operate unless it was being overseen and managed by him in accordance with the relevant sections of the Act.

b. He repeated that information to the second respondent.

c. The information conveyed was about the need to ensure proper oversight and management of breeding in order to be able to comply with the law. There was no disclosure of information tending to show a breach of a legal obligation/a crime. The closest we get to that is the reference to it not being authorised ‘unless it was being overseen and managed by the claimant.’ However, this is not the same as asserting that there had been a breach or that the claimant had not performed the necessary oversight or was disclosing information which tended to show this state of affairs. We do not know, even now, what the claimant conveyed (in the alleged disclosure) as being the circumstances amounting to a breach of the legal obligation. We do not know what information he disclosed to show what the alleged breach was and what legal obligation it breached. In reality, what the claimant did in this ‘disclosure’ was to re-state the requirements for compliance with the regulations. It does not go further and convey information tending to show a breach of the law. The claimant has not established the facts necessary to support his contention that there was a qualifying disclosure at this stage.

d. There is nothing in the information disclosed to suggest that the claimant is alleging a lack of compliant oversight by him. Rather he is just reiterating the need for proper oversight under the regulations. He is repeating the regulatory requirements not alleging or disclosing information showing a breach of them.

e. Looking at the disclosure of information objectively, there was no reasonable basis for concluding that a qualifying disclosure was being made. Any subjective belief on the part of the claimant would not be objectively reasonable in all the relevant circumstances. i. The claimant’s communications did not make such a disclosure explicitly and unambiguously, even on the claimant’s own version of events. He restated the legal requirements but did not disclose information tending to show that there had been a breach of said requirements. ii. Nor can the information reasonably be interpreted as an implied disclosure of a breach of a legal obligation. It does not have the factual content and specificity necessary for it to be in interpreted as an assertion of breach rather than a restatement of the regulatory requirements. This is true whether one examines it through objective eyes or through the eyes of the claimant, with all his background experience and expertise.

[337]In short, the disclosure did not disclose the relevant information within section 43B (1) which tended to show the matters in 43B(1)(a), (b) or (f) and the claimant did not have a reasonable belief that his disclosure tended to show that relevant information.

[338]I am not altogether convinced that the claimant genuinely believed, at the time he made this alleged disclosure, that there had been a breach of compliance with the rules. He was aware that breeding had been ongoing and had not suggested before this time that it was not properly authorised by him. This is something that only started to arise later and concurrently with the claimant’s other difficulties in being moved to the CTO post and being told that staff were raising complaints about his communications with them. I am not altogether satisfied that he actually thought that the subsequent rounds of breeding needed to be individually authorised and that there had been a breach of the rules at this stage. However, my views on this issue (the genuineness of the claimant’s belief that there had been a breach) do not go directly to the statutory question to be determined which relates to the disclosure about the breach rather than whether the breach had in fact occurred. The claimant need not be correct about whether there had been a breach. He could still make a qualifying disclosure if he was wrong about the alleged breach. The genuineness of his belief and the evidential basis for it may have some relevance to the reasonableness of his belief about what a disclosure tends to show but that does not arise in relation to PD1 on the facts as found.

[339]I have considered the relevant sections of the regulations as referred to by claimant’s counsel [1397]. It is true that the breeding of an animal (singular) may be a regulated procedure. This does not tell me anything about whether authorisation needs to happen with each round of breeding or can be done at the start of an intended programme of breeding. I accept that reasonable people may disagree as to the proper interpretation of the PPL requirements. If the claimant had a different view from others, such as Mr Acton, this does not necessarily mean that the claimant was wrong. I am not required to rule on the correct interpretation of the regulatory requirements, only to assess the issue of what the information disclosed tended to show and what the claimant’s reasonable beliefs about this were, taking into account subjective and objective factors.

[340]In reality the Tribunal’s views about the genuineness of the claimant’s asserted belief that there had been a breach of the Act are based less on the opinions of others (such as Mr Acton and the second respondent) and more on the chronology of events and the claimant’s own actions. The claimant set up the breeding protocol and was the PPL holder from the outset. He did not set up a process whereby he would give authorisation of each round of breeding specifically. Up to the point of the first alleged protected disclosure he acted consistently with a belief that he could authorise the breeding at the start of the whole process and the second and subsequent rounds could happen under this authorisation without a further specific act from him. Hence, he gave an indicative timeline. Hence, he did not have an authorisation template already set up at the beginning of the process. The claimant’s own actions indicate that his interpretation and understanding of the statutory requirements was the same as Mr Acton’s and Mr Rahi’s at the material time.

[341]For completeness, if the other elements of the test for a protected disclosure had been met, I would have had no difficulty in finding that there was the relevant reasonable belief that the disclosure was made in the public interest. If the claimant had a reasonable belief that he was disclosing information tending to show a breach of the regulations regarding animal testing I would have had no difficulty in concluding that he reasonably believed the disclosure was made in the public interest. The issue of animal welfare and the proper regulation of experiments involving animals is a matter which is of legitimate concern to various sections of the community. Hence, there are regulations in place to make sure that it is done in line with governmentally accepted standards. It is of interest to significant numbers of people. The nature of the alleged wrongdoing may also make it in the public interest as the regulatory compliance is designed to avoid unnecessary animal suffering. The animals concerned cannot be properly protected unless the people involved in the processes are acting in compliance with the regulations which have been designed and implemented to facilitate this.

[342]At this point in time the claimant still had a legitimate reason for getting involved in the mouse colony given his PPL responsibilities. He was entitled to raise issues regarding regulatory matters. In his email (referred to at paragraph 77 above [928]) the claimant was clearly stating that there had been a change to the regulatory environment at some point prior to the submission of the first SC18 report. He referred to the need for him to be in touch with matters surrounding the colony. He stressed his personal liability for regulatory compliance. At the same time, he gave no indication that he was aware of a breach of the regulations in April 2022. He also gave no details about the nature of the change to the regulations.

[343]The email correspondence referred to regulatory procedures being carried out at that point in time. This, taken with the surrounding evidence, suggests that the claimant must have been aware that the second round of breeding was ongoing. (The gestation information makes it self-evident that in order for the colony to be big enough to move to Protocol 2 there must be repeated rounds of breeding to get the required numbers.) The claimant must have taken it for granted that the necessary rounds of breeding were being undertaken and that this was in compliance with the rules. Otherwise, he would be expected to have contacted relevant individuals (possibly the second respondent) to tell them that the breeding programme was not going to produce the relevant numbers in time and that there had been a delay to progress. The fact that he did not do this indicates that he must have known that breeding was happening and would result in the necessary numbers by the anticipated date. In such circumstances, if he genuinely and subjectively believed that he needed to authorise each round of breeding separately in order to comply with the rules, one would expect him to have raised the alarm at some earlier stage to indicate that this separate authorisation had not, in fact, been given. Alternatively one would have expected him to have gone ahead and given the further specific authorisation for round 2 of the breeding. He did not do that and does not suggest that he did that. He maintained that he only ever gave one authorisation for breeding and that was in December 2021. However, for the avoidance of doubt, the observations that I make in this paragraph relate to the genuineness of the claimant’s belief in the truth of his later assertion that there had been unauthorised breeding and a breach in compliance. They do not address the reasonableness of the claimant’s belief in what any of his putative disclosures ‘tended to show’ which is the relevant question in determining whether the claimant has made a qualifying disclosure (section 43B (1)).

[344]In cross examination the claimant sought to suggest that, at the time of the first SC18 he believed that the birth of the mouse in question had not been authorised. Consequently, he indicated that he was surprised about the mouse death. (It is perhaps more likely that he was just surprised at the death during Protocol 1 because he had not experienced mouse deaths during Protocol 1 before and did not see these as a foreseeable risk given the nature of the process.) The claimant suggested in cross examination that at that stage he told Mr Rahi that the birth had not been authorised and that he would have to receive a proper business case before he could authorise further breeding. This does not sit well with the way that the breeding had been set up by the claimant (with an indicative timeline etc). The claimant must have known that a second round of breeding was likely to have started in around March 2022. Otherwise, what did he think was going to happen to the progress of the project? If he needed to authorise every single round of breeding then, on his version of events, the breeding programme should have ground to a halt after the first round of breeding. On his account one would also expect to see some form of document/template being prepared from the beginning so that it could be used to authorise each round of breeding. He only suggested drafting up such a ‘usage justification template’ at a later stage in the chronology. It is not credible to suggest (as the claimant did in cross examination) that he presumed that the team were not breeding mice at this point. Again, the observations in this paragraph go to the genuineness of the claimant’s belief in the truth of his later assertion that there had been unauthorised breeding and therefore a breach in compliance. It does not address the reasonableness of the claimant’s belief in what any of his disclosures ‘tended to show.’

[345]In light of the above paragraphs, I have concluded that the alleged protected disclosure at PD1 was not a protected disclosure within the meaning of the Act. PD2: On 24 May 2022 the claimant spoke to Mr Rahi about a further email regarding a second animal license ‘breach of severity’ notice (SC18) dated 24 May 2022. The Claimant again contacted the Second Respondent to make him aware of this information via email. Upon receipt of this second notification, the Claimant made arrangements to meet with a local animal regulator, Mr Ben Acton to discuss his concerns.

[346]My findings of fact in relation to this protected disclosure start at paragraph 94 above. There is a distinct lack of detail about what the claimant actually said to Mr Rahi and subsequently to the second respondent. The claimant’s witness statement did not really set out the contents of the disclosure, just the allegation that he had made one.

[347]In cross examination the claimant sought to suggest that he told Mr Rahi that he should have given the claimant information about Protocol 1. He suggested that Mr Rahi referred to the second respondent’s log book of staff communications with the claimant and instructed Mr Rahi to keep the claimant ‘in the dark.’ This information arose for the first time in cross examination.

[348]The claimant’s witness statement referred to him communicating with the second respondent by email as part of this protected disclosure but he accepted in cross examination that there was no copy of such an email available in the hearing bundle. He said that this was due to the second respondent’s failure to make full disclosure of the evidence in this case. This may well be correct. However, the claimant still has primary responsibility for proving his factual case and, based on the evidence that I have heard and read, I am not satisfied as to the basic content of the disclosures the claimant says he made to Mr Rahi and the second respondent as part of PD2. I am aware of the general subject matter because the conversation arose in response to the second mouse death. There will have been some comments regarding compliance with the regulations. But I cannot make a finding of fact that the claimant disclosed information which tended, in his reasonable belief, to show the relevant breach of a legal obligation or crime. Without this necessary specificity it is impossible to properly apply the relevant legal test to the disclosure to see if it constituted a protected disclosure in law.

[349]Mr Fireman referred me to the Grounds of Resistance [65] at paragraph 29 and prayed that in aid as an admission by the second respondent about the email disclosure to him on that date. However, all that paragraph concedes is that the claimant notified the second respondent that he was unhappy that Mr Rahi had not advised him of the sending of the SC18. A disclosure of unhappiness that he was not prewarned that an SC18 was being sent is not reasonably to be read as a concession that the claimant made a disclosure of information tending to show the relevant information. It is an assertion of unhappiness and a desire to be pre warned about such matters. It does not say anything about a likely breach of the regulations or that there was a legal requirement for the claimant to be pre-informed before the Home Office, rather than at the same time as the Home Office.

[350]In light of my findings of fact in relation to this disclosure I am unable to conclude that the necessary information was conveyed through this disclosure. Further, I cannot conclude that the claimant had a reasonable belief that the disclosure tended to show the relevant information. Whilst the claimant may now genuinely believe that he held such a reasonable belief at the time, he gave evidence to the Tribunal a long time after the events in question and his recollection is not specific enough to be reliable. In the absence of specifics it is not possible to assess the objective reasonableness of the belief either. Likewise, belief in the public interest. I would be departing into the realms of speculation. There is too little factual substance to this alleged protected disclosure for me to conclude that the statutory requirements for a qualifying disclosure have been met.

[351]In light of the foregoing I am not satisfied that the claimant made a protected disclosure as pleaded at PD2 in the list of issues.

[352]In light of my conclusion that neither PD1 nor PD2 is established as a protected disclosure in this case, this means that any detriment which predates the third alleged protected disclosure cannot be a detriment which the second respondent subjected the claimant to on the ground that he had made a protected disclosure. The necessary causation is, by necessity, missing. The chronology does not ‘work’ in the claimant’s favour. PD3: On 4 July 2022 an animal license meeting was held between the Claimant, the Second Respondent, Mr Rahi, Dr Montrasio, and Dr Wouter Eilers, (Principal Scientist). This meeting was arranged to discuss the Claimant’s concerns regarding the Second Respondent’s authorisation of animal testing outside the scope of the PPL. During this meeting, the Claimant again outlined the information to the Second Respondent and his team regarding the continued breach of legal obligations that were being occasioned by their failure to involve him in the First Respondent animal testing programme and the potential (criminal) consequences thereof.

[353]My findings of fact in relation to this alleged protected disclosure start at paragraph 142 onwards. There is relevant background from paragraph 116 onwards. It appears that the background to this meeting was the claimant’s continued assertion that unauthorised procedures were continuing without the required authorisation from him. Matters had developed significantly since May 2022. There had now been a total of three mouse deaths which had necessitated SC18 reports. This represented more mouse deaths than the claimant had previously experienced at the Protocol 1 stage of a project. He was alarmed and surprised by this. Others within the company may have felt that this was an overreaction on the claimant’s part but the claimant may well have held himself and the company to higher standards and may have been more fastidious about this. Each individual came to the venture with different professional experiences of such programmes of research.

[354]From 17 June onwards the claimant started to send emails making explicit assertions that there had been regulatory breaches and that not all of the breeding was authorised. He went so far as to propose solutions such as him sitting in on relevant meetings or drafting a justification template which could be used to capture the relevant information in order to create an adequate paper trail for compliance purposes. He also started to ask for more specific data. He says that this was for PPL purposes and the respondents said this was not necessary and was aimed more at getting information to interfere in research programmes in a way that he should not do as he was no longer CSO. The Tribunal is not an expert in the amount of data that needs to be captured to provide a business case or comply with the regulations. There may be a range of reasonable opinions on the question. The claimant may well have sat on the more extreme end of the range in that he thought more information was required. The respondent’s employees may have been at the other end of the reasonable range. Reasonable people can often disagree and still hold reasonable beliefs and reach reasonable conclusions.

[355]When the claimant started to ask for more data and raise his concerns the second respondent conveyed the message that there had been complaints about him from other staff and about the way his communications made them feel. No specific examples were given to the claimant at this stage. Without that information the claimant suspected that he was being prevented from communicating with people in furtherance of his role as PPL holder. The claimant maintained that his communications with others were concerned with PPL issues.

[356]By 29 June the claimant had specifically refused to give authorisation for another round of mouse breeding. He stated that a business case was needed. Around this time he also asserted that the second respondent’s proposed SOP around methods of communication was hampering him in discharging his PPL duties.

[357]All of the above is relevant background to the events of 4 July.

[358]In cross examination the claimant asserted that the second respondent was asking Mr Rahi to breed the animals. The emails in the bundle do not suggest that the second respondent carried out any authorisation function. Rather, he seems to have got involved in mediating between the claimant and other members of the team in agreeing a way forward with the colony. On the facts as found I do not consider that it is correct to say that the meeting had been arranged to discuss the claimant’s concerns about the second respondent authorising animal testing outside the scope of the PPL. Rather, the subject matter of the meeting seems to have been whether the claimant needed to provide specific authorisation for further procedures, whether he needed further data from the team in order to do this, what regulatory procedures were required to ensure legal compliance, and how the communication between the claimant and the team could be regulated in order to ensure that the team did not feel pressurised, distressed or anxious as a result of interacting with the claimant.

[359]Taking into account the claimant’s witness statement I accept that during the meeting the claimant reiterated his assertion that there was an ongoing breach of legal obligations because of the team’s failure to involve the claimant in justifying the first respondent’s testing programme. I accept that he reiterated the potentially criminal consequences of this. I also accept that he was the only person in the meeting who maintained this interpretation of the requirements of the legislation. All others at the meeting genuinely believed that there had been no breach and that there did not need to be specific authorisation given for every round of breeding in order to avoid a breach in compliance with the legislation. The second respondent maintains that by repeating these assertions the claimant was misrepresenting the position and distressing the other team members. However, this does not mean that this was the claimant’s intention. The fact was that the two sides did not agree as to what the regulations required. Dr Wagena characterises this as the claimant misrepresenting the position but it is just as likely to be the claimant ‘sticking to his guns’ and maintaining his interpretation of the statutory requirements. The claimant was sticking up for his version of compliance processes and trying to obtain the tools to comply with the PPL role as he saw fit. His manner in doing this may have upset and distressed others but this does not change the substance of what he was doing.

[360]The reality is that at this meeting there was a clear disagreement about the requirements of the Act. I am prepared to accept that the claimant made a disclosure during this meeting (in line with the content of his earlier emails) and suggested that there was a breach of the legal obligations under the regulations relating to mouse breeding with potentially criminal consequences. He was discussing the necessary steps in authorisation under Protocol 1. I accept that it is more likely than not that the claimant conveyed sufficient information to suggest that there had been a breach of a legal obligation. The claimant’s disclosures of information had become more specific and detailed by this stage of the chronology. It is not credible to suggest that he did not follow this up at the meeting with similarly specific information, particularly given the purpose of the meeting and the email correspondence which happened immediately before it. For example, he had talked about a usage justification template and a business case for the continued breeding. I have no reason to think that he would resile from this position during the course of the meeting and fail to discuss his proposals with the others present in the meeting.

[361]The crux of the issue here is the reasonableness of the claimant’s belief that his disclosures tended to show the relevant information regarding the breach of the legal obligation.

[362]Given the email correspondence from the claimant in period up to 4 July it may be that the claimant had managed to become convinced that he did need to authorise each round of breeding. He was clearly becoming increasingly entrenched in his professed convictions about the requirements of the Act. It appears that he genuinely did not believe others when they said there was no evidence of a breach. In his evidence to the Tribunal he explicitly maintained that he knew best and that nobody else in the organisation was sufficiently qualified to disagree with him.

[363]In line with my conclusions above, I am satisfied that there may be more than one permissible interpretation of the requirements of the Act. The real issue is whether the claimant had a subjectively and objectively reasonable belief that what he was saying and disclosing was information which tended to show a breach of a legal obligation etc (s43B (1).)

[364]The substance of what the claimant was conveying during this meeting was in keeping with his earlier written communications and was that:a. He had not authorised each round of breeding;

b. He had a personal responsibility for compliance as the PPL holder;

c. His personal legal responsibility was non-delegable;

d. That there needed to be a business case or justification for the continued procedures in order to comply with his interpretation of the statutory requirements;

e. He had to personally sign off or authorise each regulated procedure;

f. There needed to be an audit trail/paper trail of authorisation to maintain compliance;

g. He was proposing templates and written document solutions to the problem. Some of the written authorisation would be retrospective but it was the best he could do in the circumstances. He wanted proper procedures in place going forwards;

h. He needed to be able to communicate with other relevant individuals in the organisation about PPL matters without hindrance. He was resistant to any SOP which meant that he had to channel his communication via the second respondent. He saw that this proposed SOP risked undermining his ability to discharge his personal, non-delegable legal duties.

[365]Viewed in its proper context I am satisfied that the claimant did disclose or repeat earlier disclosures of significant information relating to regulatory compliance at this meeting. He was setting out what he thought was required by the rules, what was missing, the conclusion that this was a breach of the regulations and the risk that this would leave him, as PPL holder, legally liable and also, potentially, others who were involved in the process.

[366]The issue for me is whether the claimant reasonably believed that the disclosures tended to show the relevant matters at 43B (1). Whilst reasonable people may disagree about what the regulations required; the claimant genuinely held a belief that there had been a breach. He does not have to be right about this in order to make a protected disclosure.

[367]Viewed objectively the disclosures he made were of information tending to show a breach of the legal regulations. He made the necessary assertions of fact (e.g. that there had not been repeated written authorisation) and stated his opinion as to what the regulations required and how the breaches could be rectified. In such circumstances the claimant had reasonable grounds for believing that his disclosures tended to show the relevant information. He does not need to prove that there actually had been a breach of the legal regulations in order to successfully make a protected disclosure about them.

[368]I also take into account the relevant factors which relate personally and specifically to the claimant. He had a long background in doing this sort of research and so had a level of expertise in operating under the regulations. This did not mean that he was automatically correct in his interpretation of the rules or that others were automatically wrong. However, he could reasonably conclude and believe that he knew what he was talking about and not feel that he had to defer to the views of others. The claimant’s personal experience in the field, taken together with an objective reading of the available evidence and the terms of the relevant regulations, mean that he reasonably believed that he was disclosing information which tended to show a relevant breach of a legal obligation within the meaning of s43B (1). Whether he was right about it or not, whether his interpretation of the Act was the correct one, is not the point. The requirements for a qualifying disclosure are met.

[369]In my view the only way the claimant could be said not to have the necessary belief is if I concluded there was only one proper interpretation of the regulatory requirements, that the claimant knew and accepted this, and that he knowingly misstated the position when he made the disclosure. Given my finding that the claimant was basically an honest witness, I am unable to reach this conclusion in this case.

[370]In light of the above I am satisfied that the claimant reasonably believed that his disclosures on 4 July tended to show a breach of the legal obligation.

[371]I am also satisfied that the claimant reasonably believed that the disclosure was made in the public interest. The possibility that the claimant may have had mixed motives (in gaining access to information that was only relevant to the CSO role) does not mean that he did not have the necessary reasonable belief that the disclosure was made in the public interest. The belief in relation to the public interest is supported by the nature of the interests protected (animal welfare), the nature of the potential wrongdoing (potential unnecessary animal suffering), and the numbers of people in society who have a legitimate interest in knowing whether such regulations are being complied with.

[372]In light of the above I am satisfied that this disclosure amounted to a qualifying and a protected disclosure for the purposes of the Act and the claimant’s whistleblowing claim. PD3 was a protected disclosure. PD4: On 6 July 2022 the Claimant sent an email to the First Respondent’s HR Manager, Joanne Cairns, detailing the precise legal obligations that he was under as the First Respondent’s PPL holder. In this email, the Claimant also advised Ms Cairns that the First Respondent was in breach of its legal obligations under the PPL and provided links to the relevant legislation and Home Office guidance.

[373]The putative protected disclosure is in writing at [476]. There can be no dispute about what was said. He is cross referring to advice notes on SC18 submissions. In the email he re-states the legal responsibility that the PPL holder has for notifying the Home Office of any breach (i.e. the SC18s). He states that PIL holders have a responsibility to notify the PPL holder (i.e. the claimant) as soon as it appears that there has been a breach of the severity limit or of the constraints on adverse effects in the project licence. This again appears to be a reference to informing the claimant when there is something which needs to be notified to the Home Office under an SC18. He refers to the need for him as PPL holder to ensure good systems of communication with PILs. This is said to be part of the advice published by the government alongside the regulations. It is unclear whether it has statutory force but it may clearly be seen to be relevant to the interpretation of the statutory obligations and establishing whether there has been a breach.

[374]The claimant alleges that ‘points one and two were not followed.’ He may or may not be right about that but he is again making a specific assertion and referring to what he considers the legal responsibilities to be. It can reasonably be read as disclosing a likely breach of the legal obligations. In particular, he refers to the SOP and the second respondent as undermining his communication and preventing him from discharging his duties as PPL holder. He also refers to overproduction of animals and the relevant government operations guidance notes. He also refers to the specific detailed calculations which are needed in order to comply with the “3Rs”

[375]In light of the above I am satisfied that the claimant disclosed information of sufficient specificity which tended to show the relevant matters in section 43B (1), in particular in relation to a breach of a legal obligation. The claimant had an objectively and subjectively reasonable belief that his disclosure tended to show this too. Given the subject matter he may have had a personal interest and personal reasons for making the disclosure. However, but this does not detract from the fact that he reasonably believed that he was making the disclosure in the public interest given the nature of the alleged wrongdoing, the nature of the interests protected and the numbers of people who would have a legitimate interest in knowing that animal welfare measures were being adhered to. Essentially, the same factors apply here as in relation to PD3 in terms of public interest.

[376]The disclosure was made under section 43C and is a protected disclosure. PD5: On 8 July 2022 the Claimant emailed the Second Respondent requesting that he be permitted to stand down as PPL holder for the First Respondent. The Claimant further reiterated to the Second Respondent the precise legal obligations that he was under as the First Respondent’s PPL holder and the ways in which the company were currently in breach of their legal obligations under the terms of their animal testing license. The Claimant made this request because he had become significantly concerned that despite his repeated attempts to ensure compliance, the First Respondent was not acting in accordance with its legal obligations under the terms of the PPL, thus exposing both him and others to the possibility of a criminal prosecution pursuant to section 2Bof the Animal (Scientific Procedure) Act 1986.

[377]The email in question was at [471/947] and there can be no dispute about the contents of the email or that it was sent to the second respondent. In the email he repeated his view (in line with earlier discussions and disclosures) that they were in breach of the PPL and that they needed to do things differently in order to satisfy legal obligations. He set out references to the government guidance and reiterated the observations he made at PD4. He said that he would step down as PPL holder at the earliest opportunity because his current position did not support his ability to discharge his duties as PPL holder.

[378]The fact that the claimant referred to the opinions of Mr Acton in this email does not mean that it is not a qualifying disclosure. There are conflicting reports of what Mr Acton did or did not say to the claimant and how these should be interpreted. Mr Acton did not attend the hearing to give evidence and I am unable to say that the claimant deliberately or knowingly misrepresented what Mr Acton had said to him. Indeed, the claimant’s account of the exchange may be accurate or he may have genuinely misunderstood, misremembered or misinterpreted what Mr Acton said to him. Nor do I have the complete chain of evidence relating to Mr Acton’s correspondence with the second respondent. For example, the second respondent’s questions to Mr Acton are not in evidence. What was said to elicit Mr Acton’s responses? When examining Mr Acton’s subsequent correspondence it appears that there are parts of the dispute where he essentially agrees with the claimant (such as the fact that the legal responsibility for the PPL sat with the claimant.) In any event, and as already stated, the claimant does not have to be correct in his assertion that there has been legal breach in order for it to be a protected disclosure (Darnton). I have to look at the disclosure, what it tends to show and what the claimant’s reasonable beliefs were about what the disclosure tended to show.

[379]The email discloses information of sufficient factual content and specificity. The information tends to show the relevant information regarding a breach of a legal obligation. The claimant had a subjectively and objectively reasonable belief that the disclosure tended to show the relevant legal breach. Indeed it explicitly asserted this.

[380]For the same reasons as in relation to PD3 and PD4 the claimant had a reasonable belief that he was making the disclosure in the public interest, based on the same relevant factors.

[381]I have concluded that PD5 amounted to a protected disclosure within the meaning of the Act for the purposes of the claimant’s whistleblowing claim. THE DETRIMENTS D1: During a meeting on 10 June 2022, the Second Respondent accused the Claimant of fraudulently claiming expenses from the First Respondent in respect of monthly rental payments on a property close to the First Respondent’s Alderley Park address.

[382]I accept that the respondent did allege that the claimant was not entitled to the rental subsidy payments and that he challenged the claimant to show where this was authorised. He showed a marked reluctance to accept that the previous CEO had authorised the payments and that this arrangement was ‘above board.’ Whilst an explicit allegation of fraud may not have been made, it was strongly implied that the claimant was not entitled to the payments and should not have been claiming them. This was tantamount to an allegation of fraud in the circumstances.

[383]Notwithstanding this and the fact that the claimant was upset by the implication that he was claiming monies without authority, this aspect of the protected disclosure detriment case must fail. The two protected disclosures which were said to pre-date the detriment have been found not proven. Hence, I am unable to conclude that in acting as he did regarding the rental subsidy, the second respondent subjected the claimant to a detriment because he had made a protected disclosure. The necessary causation is not established. D2: On or around 6 July 2022, the Second Respondent instructed the First Respondent’s accountants to classify the rental payments at 3.9.1 as part of the Claimant’s salary.

[384]Relevant findings of fact about the issue of the subsidy for rent start at paragraph 101 above. The issue itself was first raised with the claimant back on 10 June prior to the relevant protected disclosures. Enquiries were made of Mr Beards prior to the relevant protected disclosures (28 June). The last payment for rental subsidy was in relation to May 2022, again, prior to the protected disclosures. The email on 4 July indicates that Elevate wanted to know about the PAYE and NIC situation. Given that the second respondent was going through a period of setting the company’s finances in order and seeking further funding I have no reason to think that this email dishonestly indicated that Elevate was raising a concern about how the payments should have been accounted for in tax and NI terms [467].

[385]I also note the advice given by Sutura’s accountant at [943] after the second respondent requested it. I have no reason to think that this is not genuine. He advises that it should be dealt with as salary rather than a benefit in kind. An adjustment to the previous year’s PAYE submissions was recommended

[386]Mrs Kelly’s view (on 18 July) was that this should not have been subject to tax and national insurance. She effectively advised the claimant that the accountants’ view was wrong. Again, it appears that there was a conflict in the opinion of accounting professionals. That does not mean that the second respondent was precluded from acting on the advice he had received in the course of his role as CEO of the first respondent.

[387]On 19 July the second respondent summarised the reasons why he considered that the benefit should be reclassified as salary [481]. It appears that he had instructed the company’s accountant Mazars to look at this. It also appears that the payments were grossed up so that the claimant should suffer no financial loss as a result of the reclassification. There were legitimate reasons why the second respondent thought the claimant should no longer receive the subsidy. This was because the claimant had not actually relocated to work and live in Cheshire. He remained working and living in Surrey aside from individual trips up to Alderley Park, as required. The original justification for the payments was no longer applicable. The claimant had not in fact relocated and so did not require a relocation allowance. The email of 22 July from Elevate [480] indicates that they and their advisers SullCrom approved the proposed change.

[388]It is important that the pleaded detriment at D2 is assessed separately and distinctly from that at D1. It may be tempting to lump both of them together but they are set out separately and the complete cause of action needs to be established in relation to both separately. This is all the more important given the finding in relation to PD1 and PD2 and the conclusion in relation to D1. I therefore separate out the events surrounding the issue arising in the first place (i.e. was the claimant entitled to the payments or not, could he demonstrate the entitlement and would the payments continue) from the decision to classify the payments he had already received as salary. They are two separate things, albeit they are linked.

[389]I have not seen any evidence from the claimant that the reclassification of the subsidy as salary did, in fact, subject him to a detriment. If he was financially disadvantaged, he should have been able to demonstrate this. The claimant’s closing submissions did not identify a particular sum of money which the claimant lost as a result of the respondent’s actions.

[390]In light of the above, I conclude that the second respondent’s actions in classifying the payments as salary did not subject the claimant to a detriment. He has not established that he was any worse off financially. Any personal distress in having to find the record of authorisation for the payments was not part of the impact or effect of D2 (see references to the embarrassment of looking into this issue at paragraph 50 Claimant’s skeleton argument.) Rather, it formed part of the impact of D1, when he was challenged about his entitlement to the payment. Any anxiety surrounding this cannot be properly attributed to the actions of the second respondent at D2 in classifying payments as a salary.

[391]Thus, I am not satisfied that the claimant has proven the detriment that he specifically asserts at D2.

[392]Furthermore, the issue arose for the first time before PD3 and was already being dealt with prior to the first protected disclosure. The last payment had already been made.

[393]Although the claimant disagrees with the accounting position that the second respondent took, I do not find that a protected disclosure was the reason why he acted to classify the payments as salary. He had sought advice and had involved the company’s primary investor. He had demonstrable reasons for doing what he did which were nothing whatsoever to do with the claimant’s protected disclosure. He owed a duty of care to the company and the investors to ensure that the accounts were rectified and logically justifiable and that unnecessary expenditure was minimised for the benefit of the first respondent and its investors.

[394]In short, I am not satisfied that the claimant’s protected disclosure had any material influence on the second respondent’s actions at D2. It did not materially contribute to the decision to classify the payments as salary. He acted solely for accounting reasons in line with the advice that he had received. The claimant has failed to establish causation.

[395]In light of the above the complaint of protected disclosure detriment at D2 must fail, both because the claimant has failed to show that he was subjected to a detriment as asserted, and also because causation has not been established on the basis of the available evidence. This complaint is dismissed. D5: On 22 June 2022 the Second Respondent made a series of complaints about the Claimant’s alleged conduct.

[396]My findings of fact in relation to this issue start at paragraph 124 above (see also [419]. It appears that the complaints about the claimant’s conduct may well have been raised for the first time on 21 June rather than 22 June but it is apparent that the second respondent did in fact act on concerns that he says were raised with by other members of staff. First there may have been a meeting but this was followed up by email.

[397]I accept that this will have been stressful and anxiety inducing for the claimant. He knew he would have to fend off whatever allegations had been raised and defend his position. He was also concerned that the second respondent raising these concerns and addressing the way he communicated with others might have an adverse effect on his ability to communicate with others about the PPL.

[398]I accept that the second respondent’s actions in raising these issues with the claimant subjected the claimant to a detriment. However, causation is an issue. This detrimental treatment took place in June rather than after the protected disclosure on 4 July. The later protected disclosures cannot have caused the second respondent to act in this way on 21/22 June 2022. Causation cannot be established in such circumstances and this aspect of the claimant’s case must fail and be dismissed. D6: On 28 June 2022 the Second Respondent removed the Claimant’s M6 toll pass.

[399]The relevant findings of fact in relation to this allegation start at paragraph 137 above. It is common ground that the second respondent removed the claimant’s M6 toll pass. This amounted to a detriment for the claimant as it reduced the speed and ease with which he could use the M6 toll and meant that he would have to claim expenses from the company and wait to be reimbursed. He clearly did still use the pass on occasion as he did travel North on business. The detriment to the claimant was counterbalanced by a relatively minor benefit to the company in terms of financial savings. It was not wholly unreasonable of the claimant to view this as a petty action on the second respondent’s part.

[400]Having said that, I am unable to conclude that causation is made out in this case. The detriment pre-dates the first protected disclosure and so cannot have been caused by it.

[401]This aspect of the claimant’s protected disclosure complaint must, therefore, fail and be dismissed. D7 On 29 June 2022 the Second Respondent was critical of the Claimant’s alleged conduct in a meeting between the Claimant, Second Respondent and Ms

[402]In line with my relevant findings of fact starting at paragraphs 128, I have found that this meeting did not take place. Both meetings on 29 June were cancelled.

[403]In light of my factual findings the claimant has not proved that he was subjected to the detriment as alleged at D7. Furthermore any such meeting would pre-date the first established protected disclosure and therefore could not have been caused by it. Causation could not be made out.

[404]In such circumstances the complaint of protected disclosure detriment at D7 fails and is dismissed. D8 On or around 5 July 2022, Ms Cairns commenced a disciplinary investigation into the Claimant’s alleged misconduct.

[405]The relevant findings of fact are set out from paragraph 149 above. It is apparent that Mr Rahi was distressed by the way that the claimant spoke to him and complained about it. He was interviewed about it. Following this interview and various email exchanges the second respondent commissioned an investigation into the claimant’s conduct as led by Ms

[406]The investigation was started a day after the claimant made PD3. One of the things that Mr Rahi referred to on 5 July was the contents of the discussion on 4 July where the claimant had alleged a breach of the law and seemed to accuse Mr Rahi of fraud. He also referred to the pressure he felt when the claimant contacted him using legal language. These concerns were to be raised with the second respondent and were linked to the decision to commission an investigation.

[407]The available evidence indicates that there were at least two causally relevant factors in relation to the decision to commission the investigation. The first is the interpersonal relationships issue. The way that the claimant interacted with people and communicated with them was alleged to be problematic. This led to Mr Rahi raising concerns/complaining. If staff raise such concerns, it is understandable that an HR investigation will take place to see if there is a disciplinary issue. That was at least part of the second respondent’s reason for commissioning the investigation into the claimant.

[408]At the same time, the subject matter of the conversation on 4 July and the disclosures that the claimant had made were directly relevant to the investigation too. First, the notes of the interview with Mr Rahi indicate that even if communication with the claimant was stopped/rectified, he still did not want to continue as colony manager. This shows that the protected disclosure itself (and the assertion of legal risk/liability) was causally relevant to the complaint which triggered the investigation into the claimant. If the claimant had not been making such important and potentially serious disclosures and assertions in the meeting, would Mr Rahi have complained? Possibly not. I find that the content of his disclosures was certainly a material contributing factor.

[409]Furthermore, the second respondent’s own evidence to the Tribunal was that the claimant was misrepresenting the position in the meeting on 4 July. He was aware of the upset and concern that such disclosures were causing amongst the team. He was frustrated with the claimant. He did not think that the claimant’s interpretation of the law was the correct one and he wanted the claimant to stop repeating his assertions. If the claimant had climbed down or withdrawn his assertions about the regulations and legal breaches it is less likely that he would have commissioned the investigation. The investigation was framed in terms of the claimant’s communication style but the content of those communications cannot be left entirely out of account. It was a material factor. The unsolicited communications which were said to be problematic often related to regulatory matters that the claimant was concerned about as PPL holder.

[410]I take the view that it is not possible to separate out the tone from the content of the claimant’s disclosures when considering causation here. They are not wholly separable. The subject matter of the disclosures was relevant to the decisions about the investigation just as much as the way that the claimant expressed himself. If he had made the fraud accusations but then backed down from them the investigation may not have been necessary. The fact that he continued to communicate about the subject matter that he did in the way that he did were both relevant factors in taking this matter to an investigation. The protected disclosure need only make a material contribution for causation to be established. The protected disclosure need not be the sole or even the principal cause. Following the appellate guidance on ‘separability,’ the protected disclosure was not just part of the context for the detrimental treatment. It was one of the reasons for it. I struggle to separate out a feature of the conduct relied upon by the second respondent that is genuinely separate from the making of the protected disclosure itself. Distress, anxiety and upset on the part of colleagues are just as likely to be caused by the inherent criticism of a whistleblowing disclosure itself, as they are by the manner in which the disclosure is made.

[411]Furthermore I am satisfied that the second respondent’s action did subject the claimant to a detriment. A reasonable employee might well take the view that he had been disadvantaged by being put under investigation. This would not be an ‘unjustified sense of grievance.’

[412]In light of the foregoing I conclude that the complaint of protected disclosure detriment at D8 is well founded and is upheld against both respondents. The second respondent commissioned the investigation and Ms Cairns (employee of the first respondent) undertook it. D12 On 22 August 2022 the Claimant was sent a letter inviting him to a disciplinary hearing on 25 August 2022.

[413]It is worth taking D12 out of chronological order as it is so closely related to D8. The claimant was clearly invited to a disciplinary hearing on 25 August 2022. This arose out of the investigation which was commissioned at D8. The claimant had attended his investigation meeting with Ms Cairns [504]. During this meeting he reiterated and stood by what he had said when he made protected disclosure number 3 at the meeting on 4 July. He repeated his assertions about regulatory requirements, breaches and potential fraud.

[414]Inviting someone to a disciplinary hearing can reasonably be characterised as subjecting them to a detriment. It opens them up to the potential of disciplinary action and will not be welcomed by the employee in question.

[415]In terms of causation, the protected disclosure on 4 July still had a causal relevance to the decision to take him to a disciplinary. The claimant had stood by his disclosures at the investigatory interview. So the disclosure on 4 July continued to have causal relevance to the decision to go to a disciplinary hearing. This had been further compounded by the protected disclosure to Ms Cairns on 6 July (PD4). It cannot be said that the protected disclosures did not materially contribute the decision to take him to a disciplinary hearing.

[416]Furthermore, at [529] there is the letter where Ms Cairns explains her reasons for taking it to a disciplinary hearing. She attempts to separate the allegations out into three parts. She suggests that she is not referring the second allegation (re failure to follow instructions relating to contacting the team in his PPL role) to a disciplinary. However, the disclosures are a material part of allegation 3 which is taken to disciplinary. This part of the letter specifically refers back to the substance of the disclosure that the claimant had made about breaking the law in relation to Mr Rahi and Mr Eilers. Again, it refers to the fact that Mr Rahi was extremely affected by this. Again, the protected disclosure element of this cannot be properly separated from the tone or manner in which the claimant made the disclosures. They are not separable.

[417]In light of the foregoing, I am satisfied that the claimant was subjected to a detriment and that this was because he had made one or more protected disclosures. The protected disclosure was materially causative of the detrimental treatment.

[418]However, on the face of it, it was not the second respondent who subjected the claimant to this detriment, it was Ms Cairns. She was acting on behalf of the first respondent. To the extent that this allegation is pursued against the first respondent then it is made out as Ms Cairns was acting as the first respondent’s agent or employee when she did the detrimental act. If it is pursued against the second respondent individually then this aspect of the complaint must fail as the second respondent had no involvement in the investigator’s decision to refer this to a disciplinary hearing. He set this up for Ms Cairns to look at but there is no evidence (as opposed to supposition) that he told her to take it further, to a disciplinary hearing stage. He was not involved in subjecting the claimant to the detriment.

[419]The allegation of protected disclosure detriment at D12 is well founded and succeeds as against the first respondent but not as against the second respondent. D13 On 9 September 2022 the Claimant was issued with a formal written warning.

[420]D13 is also taken out of order because of its close links to D8 and D12. The formal written warning was clearly a detriment. On the face of the letter [533] it is not entirely clear which parts of the claimant’s conduct were considered to be unacceptable. The letter seems to be incomplete. However, the HR decisionmaker seems to have upheld the allegation which was referred to her, which was allegation 3, identified in the letter at D12. I have already found that the protected disclosure was part and parcel of this disciplinary allegation. In upholding this allegation Ms Hinchcliffe is accepting that the claimant’s protected disclosure is a material part of the reason that she has imposed the formal written warning as a disciplinary sanction.

[421]The relevant causation between protected disclosure and detriment is therefore established. In reaching the disciplinary conclusion, Ms Hinchliffe will have had access to all the investigation papers, including the contents of the claimant’s disciplinary investigation interview, where he discusses the disclosures that he made. The disciplinary decision is significantly influenced and affected by the claimant’s protected disclosures.

[422]Ms Hinchliffe’s disciplinary procedure was commissioned by and on behalf of the first respondent. Ms Hinchliffe was acting as the agent of the first respondent in subjecting the claimant to this detriment. The first respondent is legally responsible for Ms Hinchliffe’s actions in subjecting the claimant to this detriment (s47B(1B). The complaint succeeds as against the first respondent.

[423]The second respondent had not had any involvement in the disciplinary process since he commissioned Ms Cairn’s initial investigation. He did not subject the claimant to the detriment as he did not issue the disciplinary warning. There is no evidence to show that he was involved in this disciplinary decision. Even though he had knowledge of the protected disclosures made by the claimant, if he did not subject the claimant to the detriment then he is not liable for this particular complaint of protected disclosure detriment as an individual respondent. All component parts of the cause of action have to be present in relation to the second respondent in order for him to be individually liable for this particular detriment. If he had no personal involvement in subjecting the claimant to the detriment then he is not personally liable for the detriment (s47B(1A). Ms Hinchliffe was not acting as the second respondent’s agent or employee, rather she was the agent or employee of the first respondent. The second respondent cannot be vicariously liable for Ms Hinchliffe’s actions.

[424]This complaint succeeds as against the first respondent but not against the second respondent.

[425]I am not prepared to go further and find that the second respondent directly influenced the disciplinary outcome because he tried to get on a call to reverse the appeal outcome. That was a different stage of the process. He may well have been satisfied with the original disciplinary decision and may have approved of the decision taken, but this does not mean that he actively got involved and directly solicited it by contacting the decisionmaker. There is no evidence on which I can base such a finding that he was personally involved in subjecting the claimant to this detriment in any way.

[426]In light of this I conclude that the claim at D13 succeeds as against the first respondent but not as against the second respondent. D9 No action was taken to investigate the Claimant’s complaint against Ms Cairns submitted on 12 July 2022. And D10 The Second Respondent failed to arrange for someone other than Ms Cairns to conduct the Claimant’s disciplinary investigation notwithstanding the Claimant’s request to this effect on 14 July 2022. (to be considered together)

[427]As stated above a relevant email exchange between the claimant and Ms Cairns is at [1248-1255.] Around 6 and 8 July the claimant sent emails to Ms Cairns containing information which he considered was relevant to her investigation into his conduct. On 12 July Ms Cairns indicated that she had not been able to keep all of the information that the claimant had disclosed confidential because of the business consequences, particularly in relation to the claimant withdrawing from the PPL licence [1251]. There was then an email exchange about the use of the phraseology in relation to the claimant ‘withdrawing from the PPL.’ The claimant took exception to her suggestion that this would have serious business consequences [1249]. There was further debate as to how long it would take to get a replacement for the claimant as PPL holder. Ms Cairns’ last message was at 2.46pm on 12 July and she forwarded the email chain to the second respondent at 3.23pm the same day,

[428]The claimant was clearly upset with what Ms Cairns had said or done. However, much as he complained and expressed his dissatisfaction about it, it is not clear what steps he wanted Ms Cairns to take in response to the events of 12 July. There seems to have a misunderstanding about what the claimant was saying about his position as PPL holder and what implications this would have for the company. This seems to be ironed out and clarified in the exchange between the claimant and Ms Cairns.

[429]It is not clear to me that action the claimant wanted to see in response to his communications on 12 July [D9]. What investigation should this have triggered. I am not satisfied that, at this stage, there was any duty on anyone at the respondent to look into a complaint from the claimant.

[430]Two days later on 14 July [1258] the claimant sent an email to the second respondent complaining about the HR investigation. He alleged that Ms Cairns had breached his confidence and lied about his conduct and intentions. He complained to the second respondent about this fact and said that he would support any process that the second respondent had to initiate. However he did not suggest what that process should be.

[431]In the same email the claimant alleged that Ms Cairns was no longer an impartial person to do the disciplinary investigation. He wanted someone from the external provider, The HR Dept, to do it instead.

[432]The second respondent’s response [1257] asserted that Ms Cairns was capable of conducting a fair and objective investigation. He maintained that she would continue in the investigator role whether or not the claimant decided to attend any investigatory meeting. He advised the claimant to let her do her job without interfering. He went on to assert that Ms Cairns had no option but to notify second respondent of the claimant’s potential decision to withdraw/step down as PPL holder. Effectively, if this were to have business consequences then the CEO needed to know about it.

[433]In response to this the claimant later said that he would attend the meeting in an effort to draw a line under the matter. He seemed to be doing this ‘in the interests of harmony’ rather than because he believed that Ms Cairns would be a fair and impartial investigator.

[434]In any disciplinary investigation and subsequent process an employee may question the impartiality and the suitability of the investigator or decision maker. It is part of ensuring a fair process. The claimant had expressed concerns about Ms Cairns’ impartiality. He had proposed a solution: let the external HR Dept conduct the investigation instead. This would potentially address the issue to both sides’ satisfaction and the investigation could proceed as intended. Instead, and without checking that there is no substance to the claimant’s concerns about Ms Cairns, the second respondent maintained his position. He did not assess whether the claimant had a legitimate grievance (by looking into his complaint of 12 July) and he did not change the investigator. He did not explain why he could not refer it to The HR Dept instead. He just imposed Ms Cairns onto the process and the claimant reluctantly acquiesced.

[435]It seems to me that the second respondent could not act in this way without being found to have subjected the claimant to a detriment. If he felt strongly that Ms Cairns should continue as investigator, then he could maintain this position, but only after he had looked into the source of the claimant’s complaint about her in order to check that it was groundless. If the second respondent had examined the 12 July complaint, had found it to be without foundation, and had then decided that there was no reason to outsource the investigation to the HR Dept, then this would have made logical sense and would at least have been an attempt to address the source of the claimant’s concerns. Alternatively, if he took the view that there was nothing to investigate in terms of the 12 July complaint (and he therefore assumed it was groundless without further consideration or investigation), then it was wrong to enforce Ms Cairns’ continuation as investigator when the claimant’s concerns about impartiality had not been tested. In short, if the second respondent was not prepared to check the merits of the 12 July complaint, then he should have allowed the claimant to have an external investigator in order to remove the risk of unfairness or partiality. By acting as he did, the second respondent gave the claimant the worst of both worlds. He ignored the initial complaint, assumed it was groundless, enforced Ms Cairns as investigator and refused to use an external HR provider (when this could have adequately resolved the claimant’s concerns and safeguarded the fairness of the process.)

[436]I am not satisfied, despite his protestations to the contrary, that the second respondent did actually assess Ms Cairns’ ability to act in an unbiased way when he let the investigation proceed. This was not an unjustified sense of grievance on the claimant’s part.

[437]In light of the above I am satisfied that the claimant has established that he was subjected to the detriments at D9 and D10.

[438]Furthermore I am satisfied that the necessary causation is established for both D9 and D10. These two detriments are intrinsically linked to the disciplinary process which I have already indicated was at least partially caused by the protected disclosures. Chronologically, they come immediately after the three established protected disclosures in this case. They arise in the course of investigations which are concerned with the claimant’s behaviour in relation to the disclosures as well as the way that he went about his communications with other staff members. I am satisfied that the protected disclosures had a material influence on the detrimental treatment at D9 and D10.

[439]For the reasons already stated above I consider it impossible to separate out and isolate the protected disclosure element of the reason for the detrimental treatment from the other elements (such as the manner or tone in which the claimant communicated.) Without that bright line of separability the claimant is being subjected to detriment at least partially because he has blown the whistle and because, by telling people things that they do not want to hear, he has caused distress and upset. The protected disclosure and the manner in which it is made are, in this case, intertwined.

[440]On that basis the complaints at D9 and D10 are well founded. They are upheld against both respondents as the second respondent was directly involved in the detrimental treatment and the first respondent is liable for these events as the claimant’s employer. D11 On 10 August 2022 the Second Respondent advised the First Respondent’s staff that the Claimant did not trust them and believed they could not do their jobs properly during a meeting to discuss the handover of the PPL License.

[441]In line with my findings of fact at paragraph 186-187 above I am not satisfied that this event took place as the claimant alleges. The claimant has failed to prove his factual allegation. On that basis the detriment is not established this aspect of the claim must fail and be dismissed. D15 On or around 23 September 2022 the Second Respondent cancelled the Claimant’s company credit and without prior warning or discussion

[442]I refer to my findings of fact at paragraphs 195-199 above. The credit card was cancelled. The claimant was not forewarned and the rationale for the decision was not explained to him. This was clearly subjecting the claimant to detrimental treatment, both in substance and in the manner in which the decision was implemented.

[443]As stated in my findings of fact there was more than one reason why this decision was taken and implemented in the way that it was. Some of the reasons were legitimate business and financial reasons, some of them were due to a personality clash. But a material reason was the fact that the claimant had made a protected disclosure about the PPL and regulatory position on more than once occasion. He had not backed down from his position and this evidently frustrated the second respondent and others within the company. This was a material contributing factor to the decision to remove the credit card. The second respondent did not have to do this but chose to do it and this is one of the reasons why. I am satisfied that the necessary causation is established.

[444]In the basis of the above this complaint of protected disclosure detriment is well founded and is upheld against both the respondents. The second respondent carried out the relevant acts and the first respondent is also liable as the employer. D16 On 19 October 2022 during a meeting of the First Respondent’s Board of Directors, the Second Respondent accused the Claimant of being responsible for the deaths of at least 50% of the mice used in the First Respondent’s research programme.

[445]In line with my findings of fact as set out at paragraphs 202-206 above I am satisfied that the claimant has established that this event occurred and that he was subjected a detriment as a result. His abilities and competence were called into question in front of the other Directors of the company. That is clearly detrimental treatment. It also clearly fits with the second respondent’s evidence in this case that the claimant had misled the investors in relation to the data around mice deaths.

[446]On balance I am satisfied that the claimant’s protected disclosures were at least a partial cause of this accusation and detrimental treatment by the second respondent. The protected disclosures were all to do with mouse deaths and whether the breeding was being done properly and with appropriate authorisation. The claimant had not rowed back on his opinion about what the PPL required. It is not hard to conclude that the second respondent, in his frustration about these protected disclosures (as well as other things), may well have made this accusation. It is not hard to understand why this allegation might be made to a man who was claiming to be an authority on the regulatory requirements and issues of animal welfare during the breeding process. By making this accusation the second respondent would ‘taking the claimant down a peg or two’ and undermining his credibility on the issue of regulatory compliance (when mouse deaths had in fact occurred ‘on the claimant’s watch.’)

[447]In light of the above I am satisfied that this complaint is well founded and I uphold this complaint of protected disclosure detriment. The complaint is upheld against both respondents. The second respondent was personally involved and the first respondent is liable as employer. D17 On 19 October 2022 during a meeting of the First Respondent’s Board of Directors, the Second Respondent refused to provide the Claimant with a copy of the patent that had been submitted which was based on the Claimant’s research during his time at the University of Reading.

[448]In line with my findings of fact at paragraphs 207-212 above I am not satisfied that the claimant has proved this factual allegation. The respondents sent him the available patent documents before the meeting in question and sent further documents once they became available. The claimant has failed to prove that he was subjected to a detriment as he alleged.

[449]This complaint of protected disclosure detriment therefore fails and is dismissed. D19 From 16 November 2022, Ms Cairns failed to progress the investigation into the Second Respondent’s conduct.

[450]My findings of fact in relation to this matter are set out at paragraphs 216- 220 above. In light of the findings it is apparent that the claimant first raised his complaint at the beginning of November without making it formal. Ms Cairns had accepted that she would take it forward without a formal grievance by the middle of the month. At least one meeting to investigate the complaint was arranged and then cancelled by the claimant. There may have been more. Then the claimant took it out of Ms Cairns’ hands when he raised a complaint to the Board by 20 November.

[451]In light of the relevant chronology and the short period of time in question, I do not think it is a fair and balanced portrayal of the situation to say that Ms Cairns failed to progress the investigation. She did take steps to do so within a reasonable period of time and this was then overtaken by events and effectively taken out of her hands.

[452]In light of this I am not satisfied that the claimant was subjected to a detriment as alleged. Consequently, this complaint of protected disclosure detriment is not well founded and will be dismissed. D20 On 16 November 2022 the Second Respondent circulated a document to the First Respondent’s Board of Directors which proposed to make the Claimant’s role redundant.

[453]I refer to my findings of fact at paragraphs 221 to 225 and the background information at 226 to 236 regarding the company’s finances over time.

[454]It is established on the facts that the second respondent proposed the redundancies as a solution to the challenges facing the business and that he circulated documents setting this out. Proposing to make the claimant redundant is clearly subjecting him to a detriment. The relevant issue is one of causation.

[455]There are a number of relevant circumstances which I have had to consider and evaluate in reach a conclusion on causation. There were clearly business/financial reasons underpinning the redundancy proposal but they may not have been the only factor. I have to determine whether the protected disclosures that the claimant made (as established in fact and law) materially influenced the decision to circulate the redundancy proposal document.

[456]It was clearly the second respondent who initially put this option on the table for the Board. He circulated the document.

[457]The disciplinary appeal outcome was only known on 17 October and the second respondent was evidently unhappy that the disciplinary sanction had been overturned on appeal. The claimant essentially suggests that the timing was too much of a coincidence. The implicit suggestion is that the second respondent had failed to get the claimant out of the business via the disciplinary process and that he has used redundancy as an alternative way to get to the same result. The proposed line of reasoning is that, if the decision to instigate disciplinary processes against the claimant was materially influenced by the claimant’s protected disclosures and the disciplinary processes do not achieve the anticipated result, then the respondent has chosen to achieve the same outcome by different means. Thus, the argument goes, if the protected disclosures contributed to the disciplinary process, they must also have contributed to the decision to initiate redundancies.

[458]However, I am not satisfied that this line of reasons works given the chronology of events in this case. The disciplinary sanction originally imposed was a warning, not a dismissal. This was decided on about 9 September. It would have been apparent to the second respondent even at this stage that the claimant was not going to be dismissed from employment. It is therefore not a fair reflection of the position to point the closeness of the appeal decision to the redundancy proposal and suggest this indicates an ulterior motive. The appeal outcome could not have had the impact which the claimant suggests as, even if the appeal had failed, the claimant would still have remained in employment for the foreseeable future. The decision to initiate redundancies cannot have been triggered by the appeal decision. That line of causation is not established.

[459]I have taken account of the fact that the ‘cash runway document’ is not particularly detailed and does not set out in terms why the business no longer needs someone to fill a CTO role. However, this is not the only relevant evidence in this regard, rather it is a summary of some of the relevant circumstances which was presented to the Board. The chronology of events in this case makes it clear that the CTO role is likely to have been surplus to requirements, a ‘nice to have’ rather than a core, necessary position within the business. The claimant himself had evident misgivings about the move from CSO to CTO and these were raised repeatedly in the contemporaneous documents. Hence there was so much discussion about what his job description was and what communications he would legitimately expect to have with other team members in furtherance of the CTO responsibilities (as opposed to a CSO post.) The CTO role had no defined ongoing programme of work. It was more of a consultancy position where the claimant would provide documents and advice when specifically requested by the Board. The evidence shows the claimant complaining that there was no work for him to do unless the second respondent actually asked him to do something. The claimant was dissatisfied with the role because he did not have a budget, did not have line management responsibilities and did not seem to have an ongoing day to day programme of work to do. All of these features of the evidence do tend to suggest that, in business terms, the claimant’s post was in fact surplus to requirements. This would tend to suggest that the timing of the disciplinary process was actually coincidental rather than causally relevant.

[460]The cash runway document did not explore whether there were suitable alternative roles for the claimant. However, given the claimant’s particular area of expertise and his prior role within the business and the fact that a Research and Development role was also being cut, it is very unlikely that the document could actually have included anything relevant and of assistance to the claimant in relation to suitable alternative employment. Overall, the evidence suggests that the company was moving away from its original purpose and objectives and was developing in a way where the claimant’s expertise in relation to his Technology invention was not required. The business was not looking to proceed with the claimant’s invention and so it did not necessarily need to keep the claimant in employment.

[461]It is also relevant to note that the claimant was moved from the CSO post to the CTO post well before he made his protected disclosures. It cannot be said, therefore, that the move to the CTO post was a ‘set-up’ designed to engineer the claimant out of the business because he had made a protected disclosure. He had not made a protected disclosure at this point in the chronology. The underlying potential for redundancy which was latent in the move from CSO to CTO was in no way tainted by or influenced by the claimant’s protected disclosures. The protected disclosures came later.

[462]It is apparent that once the claimant went to be the CTO he was not filling a core, essential role in the company. This meant that he would not necessarily be essential in order to carry the business forward even though he was the original inventor of the Technology. This is a hard commercial reality for the claimant to face but I am satisfied that this is actually what happened in this case. I am not persuaded that the second respondent has orchestrated this whole situation in order to get the claimant out of employment or that he did so, even partially, because the claimant made protected disclosures.

[463]There was a change of direction away from work on Duchenne Muscular Dystrophy (as originally intended by the claimant) to explore treatments for other diseases. Again this was a commercially sensible decision given the problems with the technology but it was not the reason the claimant set the business up in the first place. The claimant was unlikely to accept this change of direction even if it made commercial sense.

[464]It appears that the company decided to refocus its activities and it appears that research and development was to be carried out part time by a consultant (who already worked for the company part time) rather than by a full time employee (VP R&D.) Hence the research and development role could be made redundant at the same time as the CTO post, save more money and still allow the plans to be executed.

[465]In light of the above and taking the evidence in the round I am not satisfied that the claimant’s protected disclosures materially influenced the decision to circulate the redundancy proposal document. Whilst the disclosures and the claimant’s approach to regulatory compliance had been something of a running sore with the second respondent throughout the second half of 2022, they were by no means the only problem. The claimant and the second respondent had a troubled and difficult working relationship even prior to the protected disclosures. Even if the claimant had not made any protected disclosures, the second respondent would not have needed persuading to choose and propose the claimant’s redundancy as one of the potential costs savings. The reason that the claimant’s role could be said to be redundant was because he had moved from CSO to CTO. That move pre-dated the relevant protected disclosures and was not materially influenced by them. Once the claimant had moved from CSO to CTO there was always a risk that he would become surplus to requirements. That was not related to the protected disclosures. In essence, the claimant’s protected disclosures were part of the factual context to the redundancy proposal but not a cause of it. The protected disclosures had receded into the background sufficiently not to be of causal relevance once the issue of redundancies arose in November 2022. The fact that other redundancies had already been made, that someone else was being made redundant at the same time as the claimant, the subsequent loss of two directors and the cut to the CEO’s pay all paint a picture where the protected disclosure issue had receded into the background and was no longer causally relevant to the proposal to make the claimant redundant.

[466]On balance therefore, although the claimant was subjected to a detriment as alleged, he has failed to establish the necessary causation, even applying the material influence test of causation necessitated by Fecitt. The complaint od protected disclosure detriment at D20 therefore fails and is dismissed. D21 On 18 November 2022 the Second Respondent formally notified the Claimant by letter that his role was at risk of redundancy.

[467]The decision in relation to this complaint flows from the decision in relation to D20. The claimant was subjected to a detriment but the necessary causation is not established. For the reasons already stated, the claimant’s protected disclosures did not materially influence the decision to formally put him at risk of redundancy. They were factual context but not causative applying the test of ‘material influence’ set out in Fecitt.

[468]The complaint of detriment at D21 therefore fails and is dismissed. D23 On 12 December 2022 the Second Respondent sent the Claimant a letter inviting him to attend a formal consultation on 14 December 2022.

[469]The second respondent did not send this letter. It came from Mr Noble on behalf of the first respondent. The meeting was to be conducted by Mr Noble and Miss Hinchliffe from the HR Dept.

[470]An invitation to a consultation meeting regarding redundancy is likely to be viewed as a detriment to the employee concerned given that it is part of the process which may lead to the loss of his employment.

[471]Whether the second respondent had a direct hand in sending the letter or not, it was inevitable that a letter of this sort would be sent to the claimant once the issue of redundancy was afoot. If the claimant was at risk of redundancy and someone within the business would have to carry out some form of consultation with him. He would have to be invited to a meeting for that purpose.

[472]Even if this was a detriment, the necessary causation is not established. There is no link between the protected disclosure and the decision to send the invitation letter. This was background context and not causally relevant (as with D20 and D21.)

[473]In light of this the complaint in relation to D23 fails and is dismissed. D24 On 22 December 2022 a decision was made to proceed with the Claimant’s first consultation meeting in his absence.

[474]The findings above show that this happened. This was to the claimant’s detriment. However, I am not satisfied that this was causally related to the protected disclosures. As previously stated, the protected disclosures were background context to the redundancy situation and process rather than causally relevant to it in any way. The respondent clearly wanted to press on with the consultation process and was not prepared to wait until the claimant returned to work from sick leave. The meeting was not postponed. However, at the same time, no decision was made about whether the redundancy dismissal would actually take effect. A further meeting was timetabled. Had the protected disclosures been causally relevant one might have expected the respondent to proceed to dismiss the claimant at this earlier stage.

[475]In light of the above, causation is not established and the complaint at D24 fails and is dismissed. D25 On 29 December 2022 a decision was made to proceed with the Claimant’s second consultation meeting in his absence.

[476]The same findings and observations are made in relation to D25 as in relation to D24. Causation in relation to the protected disclosures is not established and this complaint therefore fails and is dismissed. D26 On 6 January 2023 a decision was made to proceed with the Claimant’s third consultation meeting in his absence.

[477]On 6 January the claimant emailed the second respondent to say he would be returning to work the next day, 7 January [610]. The claimant did not attend the consultation meeting on 6 January. It is not clear whether it went ahead in his absence or not. It is not apparent to me why the claimant could not attend a meeting on 6 January but was fit to return to work on 7 January.

[478]In any event, going ahead with the meeting in his absence would be to the claimant’s detriment. However, even at this meeting the respondent did not make the decision to terminate the claimant’s employment. The respondent was still, apparently, waiting to hear the claimant’s suggestions and representations. He had been encouraged to submit these in writing if he did not attend in person. It does not appear that he did so.

[479]Even though this was a detriment, I am not satisfied that causation is established, for the reasons already stated. The protected disclosures were background context but did not cause (in any way) the respondent to subject the claimant to a detriment.

[480]The allegation at D26 therefore fails and is dismissed.

[481]The claimant was invited to a further consultation meeting on 11 January 2023, which he attended. At the meeting the claimant was given notice that his employment would terminate by reason of redundancy. The last day of employment was confirmed as 11 January 2023. He was to be paid 6 months’ notice pay but was not required to work his notice [612]. D27 On 12 January 2022 the Second Respondent and Mr Noble forced the Claimant’s resignation from the First Respondent’s Board of Directors.

[482]The requirement to resign from the Board of Directors was a consequence of the termination of the claimant’s employment. This was a natural consequence of this decision and flowed from the terms of the claimant’s engagement as an employee. The claimant had agreed the terms of service which necessitated this. In any event, this requirement would always have been enforced on termination of employment whether or not any protected disclosure had been made during the claimant’s employment. Logically, there is no causal connection at all between this detriment and the claimant’s protected disclosures.

[483]The claimant conceded during his evidence to the Tribunal that this had happened because the second respondent and Mr Noble had enforced a clause in the claimant’s contract. The claimant says that ‘but for the redundancy’ this would not have happened and the redundancy was materially influenced by the protected disclosures. However, as I have already concluded that the redundancy was not materially influenced by the protected disclosures, this argument, which is parasitic on that proposition, must also fail.

[484]Consequently the complaint at D27 fails for lack of the necessary causation and must be dismissed. D28 On 13 January 2023 the Claimant was subjected to aggressive and unwanted questioning from Ms Cairns surrounding his obligations to return company property.

[485]Although the list of issues made allegations about the events of 13 January 2023 and the return of company property by the claimant, this was not addressed in the parties’ witness evidence. I was unable to make any findings of fact in relation to this allegation. As the factual allegation is not proved the legal complaint which is based on it is not established either. This allegation must fail and be dismissed. Unfair dismissal

[486]I have applied the relevant legal principles to this according to the facts as found in the absence of substantive submissions by either counsel and with the first respondent’s defence having been struck out. I therefore examine the issues in line with the evidence which was before me. Although the first respondent’s defence had been struck out, that does not automatically lead to a judgment against the first respondent in default. Pursuant to the Tribunal rules, I am still required to consider the evidence available to me before arriving at my conclusions.

[487]I note (in relation to the claims against the first respondent) that there may have been an assumption that because the first respondent’s defence to the claim was struck out, this would automatically mean that the claimant’s claims against the first respondent would be established. However, that is not how strike out of a respondent’s response operates. Where a response is struck out the effect ‘shall be as though no response had been presented’ as per rule 22 of the Employment Tribunals Rules of Procedure 2024.

[488]Rule 22(2) provides: (2) The Tribunal must decide whether on the available material (which may include any further information which the parties are required by the Tribunal to provide), a determination can properly be made of the claim, or part of it. To the extent that a determination can be made, the Tribunal must issue a judgment accordingly, otherwise, a hearing must be fixed. Where the Tribunal has directed that a preliminary issue should be determined at a hearing, a judgment may be issued by the Tribunal under this rule after that issue has been determined without a further hearing.

[489]This means that the Tribunal goes on to determine the case according to the information and evidence which is before it. The fact that the first respondent has not been represented at the hearing and has not presented evidence directly to me at the hearing does not mean that I must leave the relevant available evidence out of account. I have taken into account the second respondent’s evidence (where relevant), together with the evidence of Mr Noble (the Chair of the first respondent’s Board) and, importantly, the documentary evidence. I have, therefore, determined that some of the claims against the first respondent, particularly in relation to dismissal, have failed on the available evidence.

[490]I have before me sufficient documentary evidence to be satisfied that a genuine redundancy situation existed in this case. The overview of the respondent’s financial situation is set out above. I have accepted what the respondents have said about the need to cut costs, the limitations on the funding and the need to reduce the headcount by two at the time the claimant was dismissed.

[491]I am satisfied that there was a genuine redundancy situation within the meaning of section 139 Employment Rights Act 1996.

[492]I am satisfied that redundancy was the sole or principal reason for the dismissal. I have already made findings about protected disclosure detriment applying the lower causation threshold of “material influence.” Causation between the protected disclosures and detriments surrounding the redundancy process has already failed to pass this causation threshold. When considering unfair dismissal there is a higher threshold for establishing causation. I must be satisfied as to the sole or principal reason for the dismissal. In light of this and my conclusions in relation to causation at the lower threshold, the claim that the sole or principal reason for the dismissal was the protected disclosure must fail. If the protected disclosure did not materially contribute the decision to put the claimant at risk of redundancy, then it certainly cannot pass the section 103A test and be found to be the sole or principal reason for the dismissal itself.

[493]In those circumstances, the evidence suggests that the first respondent had a genuine and potentially fair reason for dismissal, namely redundancy.

[494]The evidence demonstrates that the first respondent attempted to consult with the claimant face to face but this was largely during a period when he was off work on sickness absence and could not attend the meetings. Whilst it is not clear why the matter was so urgent that the first respondent could not wait until the new year to do the consultation (so that the claimant could attend and fully engage with the process), they did hold one consultation meeting at which the claimant was present. The respondent also sought his representations and suggestions in writing on more than one occasion.

[495]It appears that, even when the claimant attended on 11 January, he was unable to say anything substantive about ways in which his redundancy dismissal could be avoided. The claimant has not led evidence on this or suggested that he need not have been selected for redundancy or that other suitable alternative work should have been offered to him.

[496]The contents of the dismissal letter [612] indicate that at the meeting the first respondent confirmed the basis for the redundancy. It is recorded that the claimant did not make any suggestions as to how the redundancy could be mitigated. The letter confirmed that there was no requirement for a CTO and that there were no alternative roles available and that there are no vacancies for any role.

[497]In light of this I have concluded that the procedure used to dismiss the claimant fell within the range of reasonable responses available to an employer in the circumstances. Whilst it may have been preferable to hold more than one meeting with the claimant instead of having meetings in his absence, in reality, the claimant had no representations to make and had not taken the opportunity to put anything in writing either. Although this may have been sub-optimal the decision to have some meetings in the claimant’s absence was within the range of reasonable responses.

[498]Likewise there is no evidence before me that there was in fact any alternative to dismissal for the claimant. He was not replaced in his role. Further, another person was made redundant at the same time. Further cuts were made and there had been previous redundancies. The company subsequently went into liquidation and there is no evidence to suggest that there was any growth in the company or increased need for employees at or around the time of the claimant’s dismissal or in the period which followed it.

[499]In light of the above I have concluded that the dismissal was within the range of reasonable responses and that it was fair within the meaning of section 98(4). To conclude otherwise would be to substitute the Tribunal’s view for that of the reasonable employer.

[500]In light of the above the automatically unfair dismissal claim and the ordinary unfair dismissal claim fail and are dismissed. Limitation

[501]The last established protected disclosure detriment was on 19 Oct 2022. The time limit for presentation of the ET1 began to run at this point. The Three month time limit would expire on 18 January 2023.

[502]The ACAS Early Conciliation period was 15 February 2023 to 22 March 2023. Consequently, the claimant does not benefit from an Early Conciliation extension of time to submit his ET1 to the Tribunal in such circumstances.

[503]The claim form was presented to the Tribunal on 10 May 2023 nearly 4 months outside the statutory limitation period.

[504]This is not a case where there is a last act where the claim form was submitted within the time limit, in relation to either of the respondents. Given the date of the last established actionable detriment, all of the claims against both of the respondents are out of time by a minimum of nearly 4 months.

[505]This is not a case that can be rescued by the ‘series of similar acts or failures’ doctrine at s 48(3)(a) Employment Rights Act 1996 unless I can find one actionable detriment which was pursued to the Tribunal within the relevant time limit. Unfortunately, I can find so such ‘in time’ complaint to which the out of time complaints can be linked.

[506]I have gone on to examine whether there are grounds for me to extend the applicable time limit by applying the test at section 48(3)(b) Employment Rights Act 1996. I have to be satisfied that it was not reasonably practicable to present the claim within the time limit and that the claimant, in any event, presented the claim within a reasonable period thereafter.

[507]I appreciate that the test should be given a liberal interpretation in favour of the employee. I should consider not just physical impracticability but also whether it was reasonably feasible to present the claim in time. I have reviewed and considered the relevant applicable case law guidance.

[508]Mr Fireman’s submissions about limitation focused on the fact that (on the claimant’s case) at least one of the claims against first respondent was presented within the time limit. He noted that the unfair dismissal claim was presented within the time limit. He then sought to link a series of detriments together to form a series of acts under section 48(3)(a). He submitted that the series of acts could include acts done by the second respondent and acts done only by the first respondent. The identity of the respondent in relation to each act did not matter. He submitted that it was permissible to link the series together in this way without considering the two respondents separately. This series of acts would culminate in dismissal and the complaints could all be considered to be presented ‘in time’ as a result.

[509]He pointed out that the unanticipated insolvency of the first respondent should not unfairly prejudice the claimant. He submitted that it was not possible or reasonably practicable to present the claims which related solely to the second respondent at an earlier point in time in an effort to preserve the series of acts and bring the claim in time notwithstanding the first respondent’s insolvency. In essence, the claimant could not be expected to try and bridge the gap between the last complaint against the second respondent and the date the ET1 was submitted when he could not have known that the first respondent would become insolvent. It was not reasonably practicable to anticipate the insolvency before it actually happened. The claimant cannot be expected to have realised that the insolvency would have happened and cannot be expected to have acted differently in anticipation of the insolvency. He submitted that if the claimant did not know that the first respondent would become insolvent then he could not practically and feasibly consider presenting the claim at an earlier stage. In such circumstances it would not be reasonably practicable to submit the claim in time and the claimant did submit the claim within a reasonable period thereafter. The test at section 48(3)(b) would be met.

[510]I might have been persuaded by that argument if any of the ‘in time’ claims against the first respondent were successful. Unfortunately they were not. Thus, even if I add together the series of all the successful complaints (no matter which respondent was responsible) the latest successful complaint was still presented outside the limitation period. The latest successful complaint of detriment brought against either of the respondents is the claim at D16 relating to 19 October 2022. Mr Fireman’s submission therefore does not assist the claimant given the merits of his individual complaints of detriment and dismissal. I cannot use the technique to bring the claims against the second respondent (in particular) within the time limit.

[511]Oxford County Council v Meade indicates that detrimental treatment suffered within the three months prior to presentation of the ET1 cannot be relied upon as an ‘in time’ claim unless it is also unlawful. So, if the claim was presented within three months of the dismissal or later detriments but the dismissal/detriments were not unlawful, then the claimant cannot say that any of the complaints were presented within the applicable time limit. The ‘series of acts argument does not assist him.

[512]I have also looked to see if the claimant led any other evidence to suggest that it was not reasonably practicable to present the claim in time and that presentation nearly 4 months late was, in any event presentation within a reasonable period. Unfortunately, I have not been able to locate any such evidence and counsel did not draw my attention to any additional matters in closing submissions either.

[513]There is always a risk in a protected disclosure detriment claim that one or more of the series of detriments will not be established thereby leaving a gap between the last act and the ET1 which renders the established claims out of time. That risk exists whether there are two respondents’ or just one and it exists whether or not an insolvency situation arises. Consequently, the company’s insolvency is something of a red herring in relation to limitation in this case. The status of the first respondent was actually irrelevant unless the claim of unfair dismissal succeeded because that was the only complaint which could only be pursued against the first respondent (as the claimant’s employer.) Other detriments could be pursued against either of the two respondents. The claimant did not have to wait until the dismissal to pursue his claim of protected disclosure detriment. He could have presented a claim at any stage and then submitted a further claim in relation to the dismissal once it had happened. It would have been reasonably feasible for him to do this. It is also relevant to note that the claim form always pursued both respondents, even before the company’s insolvency.

[514]The claimant has led no evidence about why he chose to wait and bring his claims when he did. I therefore have no evidential basis on which to conclude that it was not reasonably practicable to present the claim in time or why it can be said that he presented the ET1 within a reasonable period thereafter. I would be unable to articulate my rationale for exercising my discretion to extend time applying the statutory test. Furthermore, it cannot be said that the second respondent has benefited from an unjustified windfall because of the first respondent’s insolvency (which was one of the claimant’s concerns.) Even if the insolvency had not occurred, the complaints against both respondents would have been significantly out of time.

[515]In light of the above, and my conclusions in relation to limitation, all of the claimant’s claims of protected disclosure detriment and unfair dismissal must fail and be dismissed. Approved by: