Mrs S Jeffreys v Taylor Davenport Resourcing Ltd: 2406768/2024

EMPLOYMENT TRIBUNALS

Case No 2406768/2024

Between

Mrs Suzanne JeffreysClaimant

Taylor Davenport Resourcing LimitedRespondent

Date 24 January 2025

REASONS

[1]A Claim Form was received from the claimant on 21 October 2024, accompanied by 2 ACAS Early Conciliation Certificates dated 14 October 2024. The claimant identified 2 respondents: the respondent named above and Ms Sarah Kay, the business owner and director of the first respondent (i.e. the respondent named above). The claimant claimed:a. unfair dismissal pursuant to s94 Employment Right Act 1996 (“ERA”),

b. automatic unfair dismissal pursuant to s103A ERA;

c. disability discrimination under various provisions of the Equality Act 2010 (“EqA”), specifically s13 (direct discrimination), s15 (discrimination arising from disability), s21 failure to make a reasonable adjustment, and s26 (harassment);

d. other payments (which were not specified); and

e. interim relief under s128 ERA.

[2]The interim relieve application could only proceed against the claimant’s former employer, i.e. the respondent named above.

[3]The respondent was a public sector recruitment agency which specialises in placing social workers and similar senior appointments. The claimant was employed as a Director of Recruitment and her job concentrated on England & Wales.

The law

[4]Interim relief is a remedy available to employees who claim to have been dismissed for one of a number of inadmissible reasons. It is an emergency interlocutory procedure designed, in appropriate cases, to ensure the preservation of employment pending the hearing of the unfair dismissal complaint. It is only available in specified categories of cases that have been afforded such statutory protection and interim relief must be sought promptly by the claimant.

[5]The claimant has complied with the defined application procedure. The claimant sought interim relief, under s128(1) ERA, because she claimed unfair dismissal asserting that the reason (or principal reason) for her dismissal was due to her protected disclosure under Part IVA ERA (s103A)

[6]The claimant now needed to satisfy a tribunal (i.e. me) at this hearing that she was likely to succeed at a full hearing in showing that the dismissal was for one of the relevant inadmissible reasons. Interim relief could then prevent the dismissal from taking full effect before the hearing. The tribunal could then make an order of reinstatement or re-engagement or continuing the contract, which would in effect keep the claimant suspended on full pay until the full tribunal hearing.

[7]Interim relief is not available for the claims the claimant made under the EqA. There is not the statutory provision, and the Employment Appeals Tribunal (“EAT”) dismissed the arguments of effectiveness and equivalence in the provision of interim relief in discrimination and victimisation in the case of Steer v Stormsure Ltd

2021 ICR 807

[8]I must decide whether it is likely that the claimant will succeed at a full hearing of the unfair dismissal complaint: s129(1) ERA. The test is whether ‘it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find’ that the automatically unfair reason for dismissal is established. This is called the likely to succeed test.

[9]In London City Airport Ltd v Chacko

2013 IRLR 610

, the EAT stated that this test requires the tribunal to carry out an ‘expeditious summary assessment’ as to how the matter appears on the material available, doing the best it can with the untested evidence advanced by each party. This, it observed, necessarily involves a far less detailed scrutiny of the parties’ cases than will ultimately be undertaken at the full hearing.

[10]The statutory test do not require the tribunal to make any findings of fact. Rather, as the employment tribunal noted in Ryb v Nomura International plc ET Case No: 3202174/09, it must make a decision as to the likelihood of the claimant’s success at a full hearing of the unfair dismissal complaint based on the material before it. The basic task and function is to make ‘a broad assessment on the material available to try to give the tribunal a feel and to make a prediction about what is likely to happen at the eventual hearing before a full tribunal’. This was so regardless of the volume or complexity of the material before it.

[11]When considering the ‘likelihood’ of the claimant succeeding at tribunal, the correct test to be applied is whether the claimant has a ‘pretty good chance of success’ at the full hearing: see Taplin v C Shippam Ltd

1978 ICR 1068

. In that case, the EAT expressly ruled out alternative tests such as a ‘real possibility’ or ‘reasonable prospect’ of success, or a 51 per cent or better chance of success. According to the EAT, the burden of proof in an interim relief application was intended to be greater than that at the full hearing, where the tribunal need only be satisfied on the ‘balance of probabilities’ that the claimant has made out his or her case, i.e. the ‘51 per cent or better’ test. This approach was endorsed in Dandpat v University of Bath and anor EAT 0408/09 and, more recently, in London City Airport Ltd v Chacko (above).

[12]In Ministry of Justice v Sarfraz

2011 IRLR 562

the then President of the EAT, commented that the test of a ‘pretty good chance of success’, which was accepted in Taplin, is not very obviously distinguishable from the formula ‘a reasonable chance of success’, which was rejected. However, in the EAT’s view, the message to be taken from Taplin was clear — namely, that ‘likely’ does not mean simply ‘more likely than not’ but connotes a significantly higher degree of likelihood, i.e. ‘something nearer to certainty than mere probability’. The decision noted that it was understandable that Taplin declined to express that higher degree in percentage terms, ‘since numbers can convey a spurious impression of precision in what is inevitably an exercise depending on the tribunal’s impression’.

[13]In Al Qasimi v Robinson EAT 0283/17 the EAT had to consider whether an employment judge had applied the test correctly to a ‘whistleblowing’ claim under s103A ERA, in which the central question would be whether the claimant was likely to succeed in showing that she had made ‘protected disclosures’ as defined ss43A to 43H ERA. The correct approach was summarised as follows: By its nature, the application had to be determined expeditiously and on a summary basis. The [tribunal] had to do the best it could with such material as the parties had been able to deploy at short notice and to make as good an assessment as it felt able. The employment judge also had to be careful to avoid making findings that might tie the hands of the [tribunal] ultimately charged with the final determination of the merits of the points raised. His task was thus very much an impressionistic one: to form a view as to how the matter looked, as to whether the claimant had a pretty good chance and was likely to make out her case, and to explain the conclusion reached on that basis; not in an overformulistic way but giving the essential gist of his reasoning, sufficient to let the parties know why the application had succeeded or failed given the issues raised and the test that had to be applied.

[14]The likely to succeed test applies to all elements of the claim; so this implies that, when the elements are more numerous (like whistleblowing claims) and the claimant has more evidential or legal hurdles to clear, the test will be harder to satisfy. Some of the claims in respect of which interim relief is available contain relatively few elements (like detriment for trade union activities). So, in this whistleblowing claim, the claimant needed to show that she made a protected disclosure that satisfied s43A to s43H ERA in addition to establishing the causal link for dismissal. As the employment tribunal noted in Doherty v Avaloq Innovation Ltd ET Case No: S/4111400/19, the claimant has to be likely to succeed on the issues of whether the putative disclosures amounted to allegations or disclosures of information, whether they demonstrated relevant breaches under s43 ERA, and whether the claimant reasonably believed that the disclosures were in the public interest. All of these issues would have to be decided in the claimant’s favour before the issue of the reason for dismissal even arose.

[15]The employment tribunal’s decision in Cairns v Lewis’s Home Retail Ltd ET Case No: 2401649/19 is a good example of the additional hurdles that a whistleblowing dismissal claimant has to clear to succeed in an interim relief application. C, an accountant, claimed to have been dismissed because of an email she had sent to the owner of LHR Ltd stating her concern that LHR Ltd had been underpaying council tax and that this might affect the accuracy of the financial information that she was required to submit as part of an application for a business loan. In that case, the tribunal was satisfied that C had a pretty good chance of showing that the email prompted her dismissal, that the email constituted a disclosure, and that it contained information that, in her reasonable belief, tended to show a breach of the company’s legal obligation to disclose accurate financial information to a lender. However, the tribunal did not feel able to say that C had such good prospects of showing that she reasonably believed the disclosure to be in the public interest, as required by s43B(1) ERA. It noted that the public element of the disclosure was not obvious and had not been clearly pleaded, and that it had no evidence of the nature of the financial information required by the lender or how it was to be used. The tribunal therefore felt obliged to refuse the application for interim relief despite finding that C was likely to succeed on the majority of the elements of the claim. Indeed, it noted that, if this were a claim for ‘ordinary’ unfair dismissal, it would have said that it had a pretty good chance of success, in that C was dismissed because LHR Ltd did not want to deal with the matters raised in her email. The material

[16]I considered a bundle of 86 pages from the claimant, this included her particulars of claim, which were fairly detailed and amounted to 10 pages, and the claimant’s (unsigned and undated) witness statement of 8 pages. The respondent provided some documents in 4 email tranches: a letter from Oak Accountancy Solutions dated 6 November 2024; emails re access to pay roll; and WhatsApp messages x2.

[17]Prior to commencing the claim, I read the Tribunal file. I did not take evidence. I considered the documents referred to me, and considered the parties’ oral submissions. My assessment

[18]The following does not represent findings of fact. In accordance with Al Qasimi I make a preliminary assessment of what I believe occurred based upon hearing the different arguments of the parties and considering the documents proffered.

[19]My principals concerns at the hearing were, first, in respect of the claimant establishing that, as a matter of fact and law that she had made the whistleblowing disclosures and, second, more importantly, in respect of establishing that she was dismissed for making the (protected) disclosures, i.e. causation. I was concerned about whether the claimant could have reasonably believed that the claimant had committed a criminal act but that was to a lesser extent key to my decision-making, as it largely flowed from the claimant’s inability to persuade me that she had made the key protected disclosures contended.

[20]In order to gain whistleblowing protection, s43B ERA provides that the protected disclosure in question must be a "qualifying disclosure"; that the claimant must have followed the correct procedure on disclosure; and that the claimant must have suffered the detriment as a result of it. I deal with the essential elements of the establishing the automatic unfair dismissal as follows. The “relevant failures”

[21]Under s43B(1) ERA a qualifying disclosure means one that, in the reasonable belief of the claimant, is made in the public interest and tends to show one or more of the following:a. a criminal offence has been committed or is likely to be so;

b. a person has failed, is failing or is likely to fail to comply with any legal obligation to which she is subject;

c. a miscarriage of justice has occurred or is likely to occur;

d. the health and safety of any individual has been, is being or is likely to be endangered;

e. environment has been, is being or is likely to be damaged;

f. information tending to show any matter falling within any of the above has been, is being or is likely to be deliberately concealed. In this instance, the claimant seeks to rely upon (a) above. Disclosure to employer of other responsible person or body

[22]The ERA sets out the ways in which a disclosure may be made in order to gain protection. S43C ERA provides that disclosures to the worker’s employer or other responsible person provide for statutory protection. This is not in issue in this case as the disclosures were contended to be made to Ms Kay. Disclosure of information

[23]There must be a disclosure of information and not just a mere general allegation or an expression of opinion. An allegation could convey information as part of an allegation and thereby be covered under the ERA: see Cavendish Munro Professional Risks Management Limited v Geduld

[2010] ICR 325

. However, the disclosure must be sufficiently factual and specific: Kilraine v LB Wandsworth

[2018] EWCA Civ 1436

[24]The claimant contended that she made 18 protected disclosures from January 2023 to 24 September 2024. Of these 18 alleged protected disclosures, 1 was made in writing, which was the claimant’s grievance dated 20 September 2024, but this was made the same day as the notice of termination and after the redundancy process had been started. So, my focus is on 16 or 17 of the 18 alleged protected disclosures. On the higher burden of proof, I am not persuaded that the claimant disclosed information.

[25]The claimant contended that she left the respondent’s employment in January 2018 because she was harassment (on the grounds of her disability). She was re-engaged from July 2020. Notwithstanding that the respondent denied harassment, I am puzzled why the claimant would want to work again for someone that had discriminated against them so recently, particularly where this was alleged to be discrimination. In a case that will turn on credibility this apparent inconsistency was glaring. That said, even if the claimant had returned to such a harassing environment then it is surprising that she contends to have objected in supposedly such clear terms as to amount to 16 protected disclosures over 18 months, yet she did not either put such concerns in writing or even refer to any such concerns in any contemporaneous emails. The claimant referred to emails around 1 March 2024 and 8 April 2024, but these seemed to centre on the claimant not accessing the accounts system. They do not lend support to any contention that the claimant disclosed reasonably factual and specific information so as to amount to protected disclosures.

[26]The claimant contended that she made 18 months of protected disclosures, during which she was threatened and subject to a hostile environment after the first disclosure (January 2023) where Ms Kay is alleged to has said to the claimant that if she told anyone, including her family, her job would be at risk and that with the claimant’s disability it would be hard for the claimant to get another job. The claimant said that this was intimidating and degrading.

[27]The respondent said that claimant was not fearful of the respondent at any time during those 18 months and that she had a warm and close relationship with Ms Kay which was evidenced by the very numerous messages between them. I have not seen email traffic or other material that suggest that the relationship was intimidating, coercive or corroborative to the extent that the claimant could not raise her purported concerns.

[28]The claimant made no corroborative contemporaneous note of any of these calls. Thre claimant says that she made some diary entries, which were not shared with the respondent. The respondent says that these handwritten diary entries were created subsequently by the claimant to attempt to add some evidential substance to her accusations. If the claimant did make oral disclosures, then there comes a point where these must escalate, beyond diary notes even. The claimant contended that that escalation – in writing and in the form of a grievance – occurred after a surprisingly long time and 16 disclosures, when she was finally threatened with redundancy. This belated 0 to 60mph escalation is unconvincing, particularly given the narrative of an ex-employee returning to a supposedly harassing environment.

[29]The disclosures were contended to be about the respondent processing wages as expenses and thereby giving the claimant the benefit of less tax for higher net pay. The respondent says in 2022 and 2023 no one was given a pay rise. The respondent contended that to increase her wages, the claimant only required to generate more sales and placements. The respondent denied “fiddling” the tax to confer a relatively small benefit on the claimant. The respondent contended that Ms Kay entered the claimant’s commission on the brightpay accounting system in error from January 2023 to August 2024. This was an administrative mistake that affected the claimant as she was the only full-time employee. The respondent alleged that the claimant was “weaponizing” this mistake to contend criminal behaviour, such as tax evasion, so as to support this claim. The respondent contended that the first that they were aware was when the claimant raised her grievance on 20 September 2024. The respondent say that nothing was mentioned by the claimant in respect of tax irregularity or expenses or wages error or criminal behaviour. The respondent contended that as soon as this was raised by the claimant Ms Kay and the respondent’s accountant immediately checked payslips and corrected the error. They contacted HM Revenuer & Customs and paid the relevant tax and national insurance, which I was told amounted to £4,290.72 and £1,038.12 respectively. The respondent’s reply is both credible and convincing.

[30]I see nothing to persuade me that the claimant ever complained about any issues with her payslips to the respondent or anyone else. If she realised that she was being overpaid then it was to her financial advantage to say nothing.

[31]The claimant used the same accounting services as the respondents – Oak Accountancy Solutions - during the period in issue. Oak Accountancy completed her tax returns. According to the letter from Faye Clark (Director) dated 6 November 2024 the claimant did raise a concern about not being able to access the Brightpay Connect accountancy system in September 2024, which was resolved immediately, yet the claimant raise no issue with them that her pay was incorrect. This is high persuasive and undermining of the claimant’s arguments. Reasonable belief

[32]The claimant must establish a reasonable belief that the information disclosed tends to show s43B(1)(a). The belief can be reasonably held, but wrong. “Reasonable” in this instance is subjective followed by an objective test: see Babula v Waltham Forest College

[2007] EWCA Civ 174

[33]I am not persuaded at this point that the claimant had a reasonable belief that the respondents were committing a criminal act because she did not do anything, or anything much, about it for around 18 months. If she had any concerns of illegality then she could have spoken to her accountant, even confidentially, which she did not. Causation

[34]S103A ERA states: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[35]I found it difficult to understand where the disability discrimination fitted in. I went through this with the claimant. The claimant contended that she suffered from severe migraines and that respondents knew or ought to have known that this condition amounted to a disability that if she was not disabled then the respondent would not have been able to manipulate her. The respondents says both that they do not accept that the claimant was a disabled person under s6 and sched 1 EqA, and, second, that they did not know the claimant’s impairment amounted to a disability. The overlapping discrimination are not clear and this is particularly important where clarity is crucial. Key for my analysis is that the claimant’s narrative seems to confused by the claims of harassment (or direct discrimination1); however they are undermined by her claims of discrimination arising from disability and, possibly, failure to make reasonable adjustments. I cannot see how these claims can be consistent with an overall narrative whereby the claimant contends that the reason or the principal reason for her dismissal 1 The claimant cannot win on both harassment and direct discrimination as these claims are mutually exclusive because of the wording of EqA. was the protected disclosures. It seems that the claimant has hurled numerous allegations at this case, which undermines the primary whistleblowing contention.

[36]Ms Kay first mentioned redundancy to the claimant on 2 September 2024 and then she sent her an at risk letter that day. This was a small business so I struggle to believe that the claimant could see this as coming out of the blue.

[37]In any event the claimant was informed of her termination of employment due to redundancy on 20 September 2024. The reasons given were clear:a. No new clients in England & Wales since November 2022;

b. No new placements had been made in England & Wales since April 2022; and

c. Clients that the claimant worked with had stated that they could no longer use the respondent for new placements due to changes in their recruiting rules. Again, this appears to be a credible and convincing explanation that runs counter to retaliation for whistleblowing.

[38]Notwithstanding the notice of termination may have occurred some hours after the 17th or written protected disclosure. The redundancy process was well under way at that point and merely awaited an outcome. Therefore, I do not regard the written disclosure as significant. Public interest

[39]S17 Enterprise and Regulatory Reform Act 2013 (“ERRA”) introduced the requirement that the disclosure must be in the public interest. The public interest test requires a genuine belief that this disclosure is made in the public interest and that such belief is objectively reasonable (from the whistleblowers’ prospective): Chesterton Global Limited & Verman v Nurmohamed & Public Concern At Work

[2017] EWCA Civ 979

[40]Motive is different from belief. S18 EERA removed the requirement that the disclosure must be made in good faith; although it amended s49 ERA to allow tribunals to reduce compensation where a protected disclosure was not made in good faith. The burden for showing bad faith rests on the respondent: s48(2) ERA.

[41]I am not at all persuade that the claimant made the disclosure in good faith because she only raised this when it became obvious that she was going to be made redundant. So despite the claimant’s motivation, there is a public interest if the respondent has, either deliberately or inadvertently, avoided paying tax from the claimant’s commission.

Summary

[42]For the reasons stated above, I do not assess that the claimant is likely to succeed in her claim of automatic unfair dismissal. On the information before me, I assess this claim falls well below the threshold of a pretty good chance of success. Approved by