Employment Judge ThompsonIn person for claimantMs Lena Amartey (instructed by Counsel) for respondentDate 8 April 2025
JUDGMENT
The complaint of automatically unfair dismissal pursuant to section 103A of the Employment Rights Act 1996 is well-founded.
REASONS
[1]On 4th May 2023 the Claimant was told by the Respondent that he was being dismissed on the grounds of redundancy. The Claimant’s case is that the real reason he was dismissed was because he made protected disclosures.[2]The Claimant has represented himself. The Respondent has been represented by Ms Amartey. We are grateful for the helpful manner in which they have presented their respective cases.[3]We have had the benefit of a bundle running to 858 pages that was agreed between the parties. We have read the documents that have been referred to in the witness statements and that we have been taken to during the course of the hearing. References to page numbers in this judgment relate to the said bundle.[4]In addition, various documents have been added during the course of the hearing, namely Schedule 3A of the Communications Act 2003; the Talk Talk customer contract; and Darren Woods’ meeting minutes for 24th January 2023 and 5th April 2023.[5]We have heard evidence from the following witnesses:• The Claimant.• Mr Neil McArthur, the Respondent’s CEO (“Mr McArthur”).• Mr Darren Woods, the Respondent’s CFO (“Mr Woods”).• Mr Lee Sutch, Head of B2B (“Mr Sutch”).[6]The issues for us to determine are as follows:(a) Did the Claimant make a disclosure of information? The Claimant relies on the following alleged protected disclosures:a. On 4 November 2022, the Claimant informed Darren Woods (CFO) at a routine check in meeting that he had good reason to believe the Respondent was breaking the law and committing health and safety breaches with regards to the Respondent's approach to wayleaves (“Wayleave Concerns”). The Respondent does not admit that the Claimant made any such disclosure, as alleged or at all.b. On 24 January 2023, the Claimant raised the Wayleave Concerns at a senior leadership team meeting at which Mr Woods, Mr Neil McArthur (CEO), Lee Sutch (Lead for B2B Sales), Marie Danby (Customer Operations), and Richard Byers (Chief Risk Officer) were present. The Respondent does not admit that the Claimant made any such disclosure, as alleged or at all.c. On either 16 or 24 March 2023, the Claimant raised the Wayleave Concerns at a senior leadership team meeting at which Mr Woods, Mr McArthur, Mr Sutch, Ms Danby, and Mr Byers were present. The Respondent does not admit that the Claimant made any such disclosure, as alleged or at all.d. On 24 March 2023, during a senior leadership meeting the Claimant raised the Wayleave Concerns by way of Teams messages to Mr Sutch. The Respondent accepts these Teams messages were sent but, for the avoidance of doubt, the Respondent denies that they constitute a protected disclosure. In particular, it is the Respondent's position that these messages constitute no more than an anecdotal account of a wayleave issue that arose during his time at his previous employer.e. On 5 April 2023, the Claimant raised the Wayleave Concerns at a senior leadership team meeting and during this meeting sent Teams messages to Mr Woods. The Respondent does not admit that the Claimant made any such disclosure during the meeting, as alleged or at all. The Respondent accepts these Teams messages were sent but, for the avoidance of doubt, the Respondent denies that they constitute a protected disclosure. In particular, it is the Respondent's position that these messages constitute no more than an anecdotal account of a wayleave issue that arose during his time at his previous employer.(b) In respect of each alleged Protected Disclosure: a. Did the Claimant make a protected disclosure within the meaning of section 43A? b. Did the Claimant make a qualifying disclosure within section 43B(1)? c. Did the Claimant have a reasonable belief that the information disclosed was substantially true? d. Did the Claimant reasonably believe that the alleged disclosure was made in the public interest? e. Did the Claimant reasonably believe that the disclosure tended to show one or more of the following wrongdoings or failures listed in section 43B? (i) a criminal offence had been, was being or was likely to be committed; (ii) a person had failed, was failing or was likely to fail to comply with any legal obligation; (iii) the health or safety of any individual had been, was being or was likely to be endangered; (iv) the environment had been, was being or was likely to be damaged; (v) information tending to show any of these things had been, was being or was likely to be deliberately concealed.f. If the claimant made a qualifying disclosure, it was a protected disclosure because it was made to the claimant’s employer.(c) If the Claimant made a protected disclosure, was the Claimant dismissed by reason or principal reason, of making one or more of the alleged Protected Disclosures contrary to section 103A of the Employment Rights Act 1996?[7]We note at this stage that the list of issues originally included a claim for detriment contrary to section 47B of the Employment Rights Act 1996, but the Claimant did not follow up any allegations in this regard in cross examination and confirmed in his closing submissions that he was not pursuing this aspect of his claim.
Findings of Fact
[8]The Respondent is company engaged in building a fibre network infrastructure. The Respondent is one of the alternative network providers, known as an “Altnet”, which is the name used for smaller companies with their own independent telecommunications networks. These Altnets operate in the context of a government backed drive to build fibre networks in anticipation of the retirement of the copper telecommunications network by 2030. The Respondent is a company that acts as an Altnet provider in the Northwest of England. The Respondent is an Altnet who solely build their own network and then wholesale it out to ISPs (internet service providers). During the Claimant’s employment, the Respondent had one main customer, Talk Talk (‘TT'), but they were in the process of scaling up and offering business to business services (referred to as B2B) via other ISPs.[9]The Claimant started working for the Respondent on 19th September 2022 as its Chief Technology Officer (CTO). He was part of the Senior Leadership Team (SLT) and reported directly to the Respondent’s CEO, Mr McArthur. When he was less than 8 months into the job, he was told that he was being made redundant. This was communicated to the Claimant in a meeting on 4th May 2023 by Mr McArthur and the Respondent’s Chief Financial Officer (CFO), Mr Woods. The decision to dismiss the Claimant was made by Mr McArthur and Mr Woods. The Claimant was put on gardening leave until the end of his notice period.[10]The Respondent’s activities are regulated by OFCOM and in exercising what have been referred to as ‘Code Rights', the Respondent is required to comply with the Electronic Communications Code contained within Schedule 3A of the Communications Act 2003 (“the Code”). The Code gives telecommunications providers rights of access to land for the purpose of network installation and maintenance. Access agreements take different forms. The most common type of agreements used for the deployment of fixed line broadband are called wayleaves.[11]Parts 8 & 11 of the Code gives statutory rights to undertake street works and install overhead apparatus (without needing a wayleave). It has not been suggested by the Claimant during the course of this hearing or at any stage during the events we are concerned with that the Respondent requires wayleaves if it is exercising a statutory right. However, the Claimant says that telecommunications operators must always obtain wayleaves when they are installing their electronic apparatus on private land.[12]By contrast, the Respondent’s position is that wayleaves are not required at all times when they are installing their apparatus on private land. They say that the legal requirement to obtain wayleaves is more nuanced than the Claimant suggests. We have struggled throughout this hearing to get clarity from the Respondent’s witnesses on when the Respondent says wayleaves are and are not required. What was confirmed by their Counsel in closing submissions is that they accept that they do need wayleaves in two situations. First, the Respondent says that a wayleave is always required if they are building a pole or duct or the like on private land, such that they would be required to make a compensation payment (referred to as a “build wayleave”). Second, the Respondent says it needs its own wayleaves if the customer is in an “MDU” which is a multi-dwelling unit (i.e. an apartment building). However, the Respondent says that if its end user is in a single dwelling unit (“SDU”), it does not obtain its own wayleave. They say that in those circumstances they can rely upon the wayleave which they “assume” is obtained by its customer, TT, from the end user.[13]Prior to the Claimant starting work for the Respondent, issues had been raised internally at the Respondent that it was not complying with the law when it came to wayleaves. A wayleaves update document dated 21st July 2022 and prepared by Tony Moore (Chief Delivery Manager at the Respondent) identified 20 trespass infringements by the Respondent and records that “we are in discussions with the landowners concerned to put the appropriate wayleaves in place” (page 181).[14]A further document described as the wayleaves development pack at page 189 (which is undated but is stamped 2022 and appears to have been created at around the same time as the wayleaves update) further suggests that at that time the number of “proactive wayleaves” where consent had been obtained before build was very small in comparison to the “retrospective wayleaves”, which are defined as wayleaves where “we have built without consent/committed trespass”. This document suggests that in 90% of cases the Respondent had built without consent and/or having committed trespass.[15]We understand that the context of the trespass mentioned in these documents is that the Respondent was not obtaining wayleaves when they ought to have been - i.e. it was a build wayleave – one of the situations in which the Respondent accepted it did need to obtain wayleaves.[16]That same review at page 189 identified “shortfalls” in the contract used by TT. What those shortfalls are is not expanded upon in this document, and it seems to us to be relevant to the scenario in which the Respondent says it did not obtain wayleaves of its own and instead relied on the assumption that TT obtained wayleaves from their customers.[17]What then follows in the chronology is the creation of a “Wayleaves Manual” that is at page 206. This document was issued in August 2022 and is prepared by Melissa Page. She is a paralegal with previous wayleaves experience and her job title is described as “wayleaves officer”. The Manual is reviewed by Steve Stringer, Project Manager for the Respondent, who is also the individual we are told had overall ownership of wayleaves. It is the sole document from the Respondent that we have been shown that seeks to set out in writing what a wayleave is and when it is required.[18]The provisions of the Wayleaves Manual that we note are as follows:(a) At paragraph 10 there is a discussion of the Code. The last sentence reads “It is important to note that we can only rely on the above if we are in possession of a signed Wayleave for a given installation”.(b) At paragraph 11, under the heading “Why is a wayleave required?” It states “a wayleave is a legal requirement, and one must be sought before any work has begun or Network Providers risk legal implications such as trespass. In such scenario freeholders can take legal action against Network Providers for their actions, which could lead to lengthy litigation and its associated costs… to mitigate any issues, it is essential that all necessary permissions are sought in advance of any network build”.(c) At paragraph 12, under the heading “When is a wayleave required”, it states that “a Wayleave agreement is legally required when we are installing/accessing apparatus on private land, a wayleave helps to ensure that the equipment remains in place and can be maintained when necessary. A permission to work/dig or verbal consent is not sufficient as these do not provide Freedom Fibre with the same legal protection as a Wayleave”.(d) At paragraph 15, under the heading “What is Openreach PIA?” It states, “the majority of Openreach wayleaves were signed prior to the introduction of the new Code, so the sharing provision would not be applicable in many circumstances anyway… Freedom Fibre must always obtain permission from the land/property owner before we seek to enter and use PIA, irrespective of whether Openreach has a signed Wayleave post 2019 and under the new Code”.[19]We note at this stage that the more nuanced approach that the Respondent advocates in the course of these proceedings and summarised above is not set out in any policy or other written document that we have been shown. We find that the wayleave manual does not reflect the nuanced approach that the Respondent now advocates. In cross examination, Mr McArthur sought to distance himself from the Respondent’s wayleaves manual. He was taken to the above sections. In relation to paragraph 10 he stated that he “would not agree with it”. As to paragraphs 11 and 12 he stated that they “could be worded better” and in respect of part of paragraph 15 he commented that “I don’t think that’s correct”.[20]We make the following findings from the history set out above. The Respondent clearly had some issues with wayleaves compliance, leading to the creation of a robust wayleaves manual and on paper at least, the Respondent appeared to recognise that “the existing process made trespass more likely” and that their “plan is and was to change this” (see page 430). However, at senior management level, the Respondent’s own CEO did not agree with this robust approach.[21]The Claimant had previously worked for a different telecommunications provider known as G.Network. They are also an Altnet provider but operating in the London area. During his time there, the Claimant had direct involvement in wayleaves as that was within the ambit of his role with G.Network and he became familiar with wayleaves and the Code. We find that the Claimant had a good grasp of wayleaves from his previous roles and also had a high level of technical knowledge as well as extensive on the ground experience about the actual installation process.[22]On 29th September 2022, Tony Moore, the Respondent’s Chief Delivery Officer, raised in an email (at page 221) to various members of Respondent’s team (and cc’d into Darren Woods) that “if we do not obtain a wayleave from the landlord, we are effectively committing trespass, and this could result in potential legal action.” The context is a building described as an “SDU annex” and “First B2B [business to business]” customer. This was in response to an email from Stephen Stringer, who had responsibility over wayleaves, in which he wrote (at page 222) that “Whilst I’ll never advocate this, there have been many installations taking place on council properties prior without a wayleave in place and as such if the plan is to install on Wednesday, I would not challenge this.” The Claimant says that he thinks this email means that Mr Stringer was advocating installing the Respondent’s apparatus without a wayleave. It was suggested to him that an alternative explanation was that it was other Alnet providers (or BT) who had proceeded without wayleaves. We have not heard any evidence from Mr Stringer or Mr Moore who authored these emails. The Claimant was not involved in this issue. We are therefore unclear as to exactly who it was that was installing on council properties without a wayleave.[23]The Claimant was not copied into this email. He had only taken up his role with the Respondent on 19th September 2022. The Claimant’s role with the Respondent did not involve him having any direct responsibility for wayleaves. However, the issue of wayleaves came to his attention shortly after he started his employment when he says he was approached about the issue by one of his direct reports, Mr Simon Mellor (“Mr Mellor”). He says that in around the second or third week of October 2022, Mr Mellor told him that the Respondent was not consistently obtaining wayleaves. It was suggested to us by Ms Armartey that Mr Mellor had no recollection of this conversation. However, Mr Mellor was not called as a witness. He still works for the Respondent and the ET1 refers to this incident and names Mr Mellor.[24]We accept the Claimant’s evidence that this conversation took place and as to what was said. We make this finding for these reasons. First, there is no direct evidence to rebut the Claimant’s account as we did not hear from Mr Mellor. Second, the Claimant’s account is corroborated by What’s Ap messages at pages 229-232 with Mr Mellor that followed a few weeks later, on 11th November 2022. Third, we find that this is an issue that Mr Mellor would have been aware of, as he had been copied into the 29th September 2022 email that we have referred to above.[25]The Claimant says that on 4th November 2022 he raised the issue of wayleaves with Mr Woods. Mr Woods’ evidence was that he had no recollection of this conversation taking place. There is evidence that there was a meeting between the Claimant and Mr Woods on this date but neither the Claimant nor Mr Woods have any notes of this meeting. We are not particularly helped by the meeting invite agenda (at page 798) as to whether the issue of wayleaves was mentioned.[26]We accept the Claimant’s evidence that wayleaves were mentioned by the Claimant at this meeting. We find that the Claimant told Mr Woods that wayleaves were not being obtained in every case when they should be. Our reasons for making this finding are as follows. First, the Claimant had a clear recollection of this meeting whereas Mr Woods’ evidence was equivocal. Second, we accept that this issue had been highlighted to the Claimant by Mr Mellor at the end of October and was on the Claimant’s radar at the time. Third, we consider that this is an issue that the Claimant was likely to raise with Mr Woods given the Claimant’s previous experience of wayleaves.[27]On 10th November 2022 the Claimant and Mr Mellor engaged in a What’s Ap exchange. The contents are at pages 229 - 232. In the context of wayleaves, Mr Mellor writes “there needs to a softly approach now tho as we could wake people up to what has really happened”. The Claimant’s reply is “Your right. It’s a change in mindset. That change will be quicker if we start getting letters from lawyers”. We infer from these messages that Mr Mellor was suggesting that the Respondent had been getting away with not obtaining wayleaves when he thought they needed to. We infer that the Claimant regarded this as a legal breach, hence his reference to letters from lawyers.[28]The Claimant was recruited as part of a plan to scale up the Respondent’s business. When he was taken on, the Respondent knew that he was not the finished article, which is why he was offered and accepted a salary at below market rate. This was with the acknowledgement that his salary could be increased by a further £15,000 per annum after a 6-month probationary period.[29]In or around 20th December 2020, Mr McArthur and Mr Woods instructed David Waine (an ex-employee of the Respondent) to collate feedback in respect of the Claimant’s performance. A copy of Mr Waine’s report is at pages 279-281. The feedback included some concerns about the Claimant’s performance. Mr. Waine concluded that “We do have a problem” but that “It’s worth trying to fix””. He recommended that the Respondent continued to invest in the Claimant. We find that the Claimant was not aware of the fact that Mr Waine had conducted such a review at the time.[30]On 19th January 2020 the Claimant had his probationary review with Mr Woods. We accept that the email that followed at page 290 is an accurate reflection of the content of that meeting. The Claimant was told that he had passed his 3- month probation review. He was told there was still room for development to achieve the full CTO package (i.e. the extra £15,000 per annum) outlined at offer stage. The meeting ended with Mr Woods telling the Claimant to think about the areas that he needed to improve to work towards a CEO role. It was agreed that they would meet every 3 months to review progress.[31]On 24th January 2023 there was an SLT meeting. The Claimant was in attendance as were Mr Woods and Mr McArthur. The Claimant’s notes of that meeting records “Raised WL [wayleave] again” (see page 653). During the course of this hearing, Mr Woods provided his notes of the 24th January 2023 meeting. He does not record any exchange in relation to wayleaves. The Claimant was not able in his oral evidence to expand much further than what his notes record about exactly what it was he said when he raised wayleaves.[32]However, he does explicitly recall Mr McArthur’s response to him mentioning his concerns about wayleaves, which was, “It’s sometimes easier to ask for forgiveness than to get permission”. We accept the Claimant’s account that he did mention wayleaves. We find that he used words similar to the words he had used when he met with Mr Woods on 4th November 2022, namely that wayleaves were not being obtained in every case when they should be. We accept that Mr McArthur responded to the Claimant raising these concerns with the comment “It’s sometimes easier to ask for forgiveness than to get permission”. We also accept that in making this comment, Mr McArthur was dismissing the Claimant’s concerns and condoning the practice of not getting wayleaves when they ought to. We make this finding for these reasons. First, there is support in the Claimant’s contemporaneous notes. Second, the Claimant did not seek to embellish this conversation, accepting that he did not recall much of what was said beyond his notes and the reply from Mr McArthur. Third, Mr McArthur accepted that “It’s sometimes easier to ask for forgiveness than to get permission” was a phrase he used, albeit he denied saying this phrase in the Claimant’s presence. That explanation struck us as lacking credibility, as the Claimant must have heard Mr McArthur use this phrase and no alternative scenario was suggested to the Claimant as to when Mr McArthur may have made this comment in his presence.[33]On 23rd March 2023 Mr Sutch sent to members of the SLT, including the Claimant, a Power Point presentation that he had prepared for the 24th March 2023 SLT meeting. The presentation related to the Respondent’s wayleaves strategy for high street businesses and has been referred to as the wayleave discussion deck (“the discussion deck”). This was a market that the Respondent was looking to expand into.[34]The email from Mr Sutch attaching the discussion deck states as follows (at page 363): “Wayleave delay becoming more of an issue with TTB [Talk Talk Business] and their small volumes and it is getting commented on more and more by their sales team as a barrier to sale. I fear that this will become a greater issue when we get more partners on the pitch, selling into the high street businesses”.[35]This is expanded upon in the discussion deck under what is described as “Problem Statement” (at page 305): “All B2B [business to business] orders are subject to a wayleave. Wayleaves can take up to 12 months and above to obtain with a best case average of 3-4 months. Delaying our ability to serve a customer… This process will have the potentially severely delay smaller value B2B sales in the residential build areas and could jeopardise revenue where customers take a BT option whilst we are waiting on wayleave”.[36]The discussion deck sets out various different scenarios for addressing the problem. Scenario D is described as “work on SME business without wayleave” (page 304) . The risk of this is recognised as “legal cases”. Page 308 gives this as the “suggestion”: “In order to maximise B2B RFS we need to be able ensure quick sale passage for our residential footprint. 1. Scenario D where we take a calculated risk on all B2B residential footprint, save for the building is listed or the build requires additional work or build. This allows us the process sale quicker and avoids delay or risk of sale. 2. The potential risk of a landlord taking action would need to be balanced against the probability of this happening, which we believe to be low versus the advanced gain of revenue in B2B. 3. Focus the wayleave teams efforts only onto MDU’s and Business Parks. We should reach out to all business parks within the build”.[37]The conclusions we draw from this are as follows. First, Mr Sutch appears to accept that all business installations of their full fibre network would require a wayleave. Second, that the consequence of this for the Respondent would be sales being delayed and losing customers. Third, that the proposal being made in Scenario D, which Mr Sutch was endorsing, was that the Respondent did not obtain business wayleaves save for where the building is listed or the build requires additional work. Fourth, that there was an open acknowledgement that this would be breaching the law, but that would be an acceptable risk in order to maximise profits.[38]Before the discussion deck had been circulated, Tony Moore sent this email to members of the leadership team on 22nd March 2023 (at page 341): “I understand we may have or are intending to make a couple of B2B installations without wayleaves and under the warranties section that you will sign up to, we will be in breach of these warranties!”[39]The reference to warranties relates to warranties given to the Respondent’s private equity investors by senior management. After he had seen the discussion deck, on 24th March 2024 (at page 362) Tony Moore comments on Scenario D and notes the example given by Mr Sutch that the Respondent was serving apartments above SME’s. He comments “that’s news to me! I would class this as an MDU and as far as I am aware all MDU’s are in LOC until they have a wayleave.” He then adds this: “I fully understand the need to accelerate wayleaves, but we need to make the case to Equinix [the Respondent’s private equity investors] because in the example where we are connecting to apartments above an SME, they are not aware of this.”[40]The Claimant says that there was an SLT meeting on either 16th or 24th March 2023 where wayleaves were discussed. We find that the meeting he refers to was likely to have been on 24th March, as that the meeting where Mr Sutch’s discussion deck was on the agenda. We further accept that at that meeting the Claimant again raised the wayleaves issue. We find that at this meeting he mentioned the consequences of proceeding without wayleaves, including loss of amenity, economic loss and damage to property. We make this finding because these words are written in the Claimant’s contemporaneous notes (at page 533) around this time at an SLT meeting and because they mirror the private Teams exchange with Mr Sutch referred to below. We further find that the reason that the Claimant was being more explicit than he had been in the past about the consequences of failure to obtain wayleaves was because he was concerned, having read Mr Sutch’s discussion deck, that the Respondent was proposing proceeding with business installations in a way that it knew was illegal. We also find that the Claimant found this deeply concerning.[41]During this SLT meeting on 24th March 2023, there was a private Teams exchange between Mr Sutch and Claimant about wayleaves. The exchange is found at page 359 and is repeated below: “[24/03/2023] 11:23] Shawn Nolan Also FYI on wayleaves. At GN we were sued successfully Surprised 1 [24/03/2023 11:23] Lee Sutch Oh boy – to what value Shawn? [24/03/2023 11:24] Shawn Nolan Big money 200k+. But yes its London. They sued us on the following; Nuisance Loss of amenity Damage to property Economic loss Trespass [24/03/2023 11:24] Shawn Nolan But, we did the same. We absorbed the loss as a risk [24/03/2023 11:24] Lee Sutch OK – that needs to go into my page in that case. [24/03/2023 11:24] Shawn Nolan Same approach as FFL [24/03/2023 11:25] Shawn Nolan We got better over time, but we looked at the larger MDUs and make a guess if they would sue us or not, lol [24/03/2023 11:26] Lee Sutch Maybe we have an eyes on approach. [24/03/2023 11:26] Shawn Nolan Not a bad approach Like 1”[42]There was a further SLT meeting on 5th April 2023. Mr Woods, Mr Sutch and Mr McArthur were all in attendance at this meeting. Mr Woods’ notes of this meeting were disclosed at the Tribunal’s request during the course of this hearing. They do refer to a discussion on wayleaves insofar as he writes “wayleave check freehold v leasehold”. They do not reference the Claimant mentioning wayleaves. However, we accept that the Claimant did mention wayleaves at this meeting. We find that he raised that he believed that the Respondent was committing legal breaches and that he mentioned the Mayfair incident, where his previous employer had been sued after failing to obtain wayleaves. We accept that the Claimant saying that legal breaches were occurring is what led to Mr Woods requesting details from the Claimant and the private Teams exchange 15 minutes into this meeting between Mr Woods and the Claimant.[43]The Teams messages at page 405 confirms that the Claimant messaged Mr Woods at 9:44 am and wrote: “Nuisance Loss of amenity Damage to property Economic loss Trespass”[44]That was followed up by the Claimant writing: “For the lack of wayleaves in the shop in Mayfair”[45]Mr Woods was not able to offer any credible alternative explanation as to what may have been said during the course of this meeting that prompted the Claimant to send these messages. We accept the Claimant’s evidence as to the context in which these messages were sent.[46]About a month after the 5th April 2023 SLT meeting, the Claimant was asked to attend a meeting on 4th May 2023 with Mr Woods and Mr McArthur. This was a hybrid meeting, with the Claimant attending by video as he had been involved in a car accident that day. The Claimant not told what the meeting was about, other than that it was urgent. There are no notes of this meeting. No HR representative attended on behalf of the Respondent at this meeting.[47]What happened at the meeting on 4th May 2023 is largely agreed. Mr Woods said that multiple roles would be cut resulting in significant job losses. It was suggested that Mr McArthur’s job was at risk. Mr Woods implied that major projects could be cancelled. The Claimant was told that he was being dismissed for redundancy and the same day he was sent a letter confirming this which is at page 408.[48]On 30th May 2023, Mr Woods attended a board meeting. The last bullet point of the notes record “DW stated that no redundancies had been made” (page 809).[49]In November 2023 the Respondent undertook a collective redundancy exercise in which 97 roles were placed at risk of redundancy and 71 roles were terminated.
The Law
[50]Section 43B(1) ERA 1996 defines a protected disclosure as: In this Part a “qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[51]A consideration of what amounts to a disclosure of information for the purposes of Section 43(B) was undertaken by the EAT in Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38. It was held that it is not sufficient for the Claimant to simply make allegations about wrongdoing: there must be disclosure of information. In the EAT’s view, the ordinary meaning of giving information is “conveying fact”.[52]In Kilraine v London Borough of Wandsworth 2018 ICR 1850, CA, the Court of Appeal held that the word “information” has to be read with the qualifying phrase “tends to show”, meaning that 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. For a statement or disclosure to be a qualifying disclosure, it must have sufficient factual content to be capable, tending to show one of the matters in Section 43(B)(i)(a)-(f). It is a question that is likely to be closely aligned with the issue of whether the worker making the disclosure had the reasonable belief that the information he or she disclosed tends to show one of the six relevant failures.[53]In the case of Chesterton Global Limited (Trading as Chesterton) and Another v. Nurmohamed (Public Concern at Work Intervening) [2018] ICR 731, it was held that this has both a subject and an objective element. If the worker subjectively believes that the information 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.[54]The EAT considered the meaning of ‘likely' in Kraus v Pennaplc and Another [2004] IRLR 260, EAT. In the EAT's view, ‘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'. Instead, ‘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'.[55]In considering whether the Claimant has proven a reasonable belief that the information disclosed tends to show a relevant failure, the tribunal must take into account the context and the employee’s experience and background. The fact that a senior employee makes informal, vague and non-specific statements despite sophisticated background in their industry is inconsistent with them having a reasonable belief that the disclosure tends to show Respondent had or was likely to have committed the relevant failure: see Carmichael v Torch Partners Corporate Finance Ltd ET Case No.2202141/15.[56]In the case of Good v Marks & Spencer Plc, the EAT accepted that information previously communicated by a worker to an employer could be regarded as “embedded” in the subsequent communications. Moreover, in the case of Kilraine v. London Borough of Wandsworth [2018] ICR 1850, the Court of Appeal clarified that information imparted by a disclosure should be viewed in the context in which it was made.[57]In Reynolds v Times Newspapers Limited [2001] 2 AC, the House of Lords defined the public interest as covering “matters relating to the public right of the community and those who take part in it”. This included activities such as the conduct of government and political life, elections and public administration, public bodies, institutions and companies, but excludes personal and private matters.[58]Factors to be taken into account in determining public interest as per the Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979 include the following:(a) The numbers in the group whose interest the disclosure serves;(b) The nature of the interest affected and the extent to which they are affected by the wrongdoing disclosed;(c) The nature of the wrongdoing disclosed;(d) The identity of the alleged wrongdoer.[59]The key distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest. A disclosure could be made in the public interest even though the public will never know that it had been made, and a disclosure could be made in the public interest even if it relates to specific incident without the likelihood of repetition. The Tribunal is not tasking itself with asking itself the objective question of what the public interest is, but rather the worker needs to show that they have a reasonable belief that his or her disclosure is made in the public interest: see Babula v Waltham Forest College [2007] ICR 1826.[60]The form, content and context of the alleged disclosures are all relevant considerations when determining whether the Claimant had a reasonable belief that any disclosures were made in the public interest: see Starforth v Eagle Pest Control Services (UK) Ltd ET Case No.2510727/06.[61]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. However, some specificity would be required in a disclosure based on a breach of a legal obligation: see Fincham v HMP Prison Service [EAT 0925-01]. The source of the obligation should be identified and capable of verification by reference for example to statute or regulations: see Blackberry Bay Adventures Limited (Trading is Chemistree) v Gahir [2014] ICR 747.[62]The Claimant has the burden of showing, on the balance of probabilities, that the reason for his dismissal was an automatically unfair reason: see Ross v Eddie Stobart Ltd EAT 0068/13. The Claimant will only succeed under section 103A if he proves that the sole or principal reason for his dismissal was a protected disclosure.[63]The principal reason is the reason that operated on the employer's mind at the time of the dismissal: see Abernethy v Mott, Hay and Anderson [1974] ICR 323, CA. Provided the facts and beliefs relied upon by the employer remain the same, the label attached to those facts is of little consequence legally: see Jocic v London Borough of Hammersmith and Fulham and ors EAT 0194.[64]The rejection by an Employment Tribunal of one or more potential reasons for dismissal put forward by the employer will not of itself lead to a finding of unfair dismissal under section 103A: see MidEssex Hospital Services NHS Trust v Smith EAT 0239/17. The Claimant must prove on the balance of probabilities that the reason or principal reason is the protected disclosures, this cannot be done by process of elimination. If the fact that the employee made a protected disclosure was merely a subsidiary reason to the main reason for dismissal, then the employee's claim under s.103A will not be made out.[65]Consideration of the reasonableness of the decision to dismiss is entirely irrelevant when it comes to a claim based on Section 103(A). The focus of the Tribunal’s enquiry is not established and, on the evidence, whether protected disclosure was made and, if so, whether the making of it was the sole or principal reason for dismissal. Application of Law to Facts Did the Claimant make protected disclosures?[66]We have already made findings of fact in relation to each of the 5 disclosures and now turn our attention to the question of whether any of those 5 disclosures amounts to a protected disclosure.[67]In respect of each alleged Protected Disclosure we must consider:a. Did the Claimant make a protected disclosure within the meaning of section 43A?b. Did the Claimant make a qualifying disclosure within section 43B(1)?c. Did the Claimant have a reasonable belief that the information disclosed was substantially true?d. Did the Claimant reasonably believe that the alleged disclosure was made in the public interest?e. Did the Claimant reasonably believe that the disclosure tended to show one or more of the following wrongdoings or failures listed in section 43B?(i) a criminal offence had been, was being or was likely to be committed;(ii) a person had failed, was failing or was likely to fail to comply with any legal obligation;(iii) the health or safety of any individual had been, was being or was likely to be endangered;(iv) the environment had been, was being or was likely to be damaged;(v) information tending to show any of these things had been, was being or was likely to be deliberately concealed.f. If the claimant made a qualifying disclosure, it was a protected disclosure because it was made to the claimant’s employer.[68]We have found that on 4th November 2022 the Claimant told Mr Woods that wayleaves were not being obtained in every case when they should be. We do not find that this amounts to a protected disclosure. Our reason for this is because it fails at the first hurdle of not being a disclosure of information. We find that the Claimant was making an allegation of wrongdoing but there was not sufficient information provided such that we are satisfied that the Claimant was conveying fact.[69]We turn to the second alleged protected disclosure on 23rd January 2023. We have found that on this occasion the Claimant did again mention wayleaves and we found that he used words similar to the words he had used when he met with Mr Woods on 4th November 2022, namely that wayleaves were not being obtained in every case when they should be. We also accept that Mr McArthur responded to the Claimant raising these concerns with the comment “It’s sometimes easier to ask for forgiveness than to get permission”. However, we do not find that this amounts to a protected disclosure. Our reason for this is because it again fails at the first hurdle of not being a disclosure of information. We find that the Claimant was making an allegation but there was not sufficient information such that he can be said to have been conveying facts.[70]We turn to the third disclosure, which we found took place at the SLT meeting on 24th March 2023. We have found at this meeting that the Claimant again raised the wayleaves issue. We further found that at this meeting (and unlike in respect of the first and second disclosures) he mentioned the legal consequences of proceeding without wayleaves, namely loss of amenity, economic loss and damage to property. We have also accepted that the third disclosure was followed shortly by the fourth disclosure again on 24th March 2023, in which the Claimant repeated privately to Mr Sutch his views of the legal consequnces of proceeding without wayleaves, namely nuisance, loss of amenity, damage to property, economic loss and trespass. Less than 2 weeks later on 5th April 2023, we accept that the Claimant made the fifth disclosure when in the SLT meeting he said that legal breaches were occuring in relation to wayleaves, which led to Mr Woods requesting details from the Claimant and in which the Claimant repeated the legal consequences (loss of amenity, damage to property, economic loss and trespass) followed up by the Claimant referencing the Mayfair shop example once again as he had during the fourth disclosure.[71]We find that the third, fourth and fifth disclosures all individually amount to qualifying disclosures. We find that in relation to the third, fourth and fifth disclosures the Claimant had a reasonable belief that the information disclosed was substantially true and that he reasonably believed that the disclosure was made in the public interest. We further accept that the Claimant reasonably believed that the third, fourth and fifth disclosures tended to show one or more of of the wrongdoings or failures listed in section 43B, namely that the Respondent had failed, was failing or was likely to fail to comply with any legal obligation and/or that the health or safety of any individual had been, was being or was likely to be endangered. We also accept that the third, fourth and fifth disclosures were protected disclosures because they were made to the Claimant’s employer. Our reasons for making these findings are set out below.[72]In respect of the third, fourth and fifth disclosures, the Claimant was not simply making an allegation, but was conveying fact, including the consequences of failing to obtain wayleaves in terms of causes of action and remedy. In respect of the fourth and fifth disclosures, he was also specifically conveying the fact of what had occurred when his previous employer had not complied with the law and had been sued. We take into account the context of the third, fourth and fifth disclosures, as these all followed shortly after the receipt of Mr Sutch’s discussion deck and its explicit suggestion in Scenario D. The Claimant was raising concerns with wayleaves, namely his belief that wayleaves were required in every case, in the context of a report that expressly recommended the option of not obtaining wayleaves in B2B cases and knowingly breaching the law.[73]We do not accept Mr Sutch’ attempt to characterise the fourth disclosure as the Claimant confirming that he was happy with Mr Sutch’s plan. Mr Sutch has taken one isolated comment (the “lol” comment) out of context. We accept the Claimant’s account that the comment was meant to be ironic. It is clear to us from context of the exchange as a whole that the Claimant was not agreeing that this was a good plan – quite the opposite.[74]We also accept that in respect of the third, fourth and fifth disclosures the Claimant believed that the information he was disclosing tended to show that there had been a breach of a legal obligation. The source of the obligation was identified by the Claimant by reference to the Code and his belief that the Code required the Respondent to obtain a wayleave in every case where it was installing on private land. He was robustly challenged on his belief that wayleaves were required in every case. It was put to him that where there was an existing wayleave in place from another operator, the Respondent could share that wayleave and did not need to obtain its own. The Claimant’s response was that sharing provisions in the Code are meant to apply if an operator is sharing with another operator an existing apparatus, and not where, as in the case of a full fibre network, a new apparatus is being installed. He explained that installing a full fibre network could involve ripping out the existing network and a new network provider was not just piggybacking onto the existing structure. We found the Claimant’s responses on this point convincing.[75]We also accept that in respect of the third, fourth and fifth disclosures the Claimant believed that the information he was disclosing tended to show the health or safety of any individual had been, was being or was likely to be endangered. The Claimant was challenged on his view that there was a health and safety benefit in obtaining a wayleave. He explained that the Respondent was undertaking work on someone else’s land, potentially digging and making alterations to the land, and that there were obvious health and safety reasons why they should not be doing that until the freeholder of the land had agreed a wayleave and importantly had input to how the work was going to be done. He said that the freeholder is in the best place to know what is going on with their property and would know of any hidden dangers. If the Respondent was trespassing onto land, then they would not have the property owner's guidance on hidden dangers. The Claimant gave specific examples including gas, electrics and asbestos. We found the Claimant to be very convincing on this point and in contrast found the refusal of the Respondent’s witnesses to accept that there was any possible health and safety aspect to obtaining wayleaves very troubling.[76]In determining that the Claimant reasonably believed that the disclosure was made in the public interest we have taken into account the nature of the wrongdoing, in particular the trespass allegation which seems to us to be the most obvious implication of failure to obtain a wayleave. We have taken into account the fact that the potential group affected were a large number of the Respondent’s current and future customers, in particular as Scenario D was a proposal affecting all B2B customers. We have taken into account the nature of the failure being both a breach of a legal obligation and a health and safety issue. We find that in light of the above, the Claimant reasonably believed that the disclosure was made in the public interest was not just an internal matter.[77]We have considered the fact the Claimant did not raise the whistleblowing when he was told he was dismissed on 4th May 2023. We also accept that the Claimant did not raise whistleblowing to Ms Segelit from the HR on 5th May 2023 or in his correspondence with Respondent after the termination of his employment (at page 801). However, we do not accept that this in any way undermines the Claimant’s case that these were protected disclosures. We accept his evidence that he was in shock when he was dismissed, and what was on his mind immediately after his dismissal was the fact that he had a family that he had to provide for. Further, his aide memoire of the meeting with Ms Segelit (page 448) clearly shows that he was completely baffled by the dismissal, and he recorded his internal thought that raising the wayleaves could be reason why he was dismissed.[78]We have considered the fact that the Claimant failed to take various steps which the Respondent says would have been taken if he genuinely believed he had made a protected disclosure. The criticisms made of the Claimant include:• That he did not re-read the Code.• That he did not read R's wayleave manual, workflow or precedent agreement.• That he did not raise the matter with the wayleaves team, including Mr. Steven Stringer.• That he did not raise the matter with Tony Moore, Chief Delivery Officer.• That he did not escalate the matter to the board of directors.• That he did not send an email to set out his alleged concerns with the Respondent’s practices.[79]In relation to the point that the Claimant did not raise the disclosure in a different way (i.e. more formally) or to other people (including the people listed above), we note that the Claimant was a senior employee and member of the SLT. His line manager was the CEO. He raised his concerns at the highest level with the people he reported to, i.e. the CEO and the CFO. He raised his concerns at formal SLT meetings and in Teams conversations in the course of those meetings. We note that although he attended board meetings, that was in a limited capacity and to report on particular issues.[80]In relation to the point that the Claimant did not look to verify the basis of his beliefs, we remind ourselves that we must take into account the context and the employee’s experience and background, in particular when considering whether the Claimant has proven a reasonable belief that the information disclosed tends to show a relevant failure. We find that the third, fourth and fifth disclosures were not vague and non-specific statements. They were the opposite – he was making references to specific legal actions and remedies. In our view, the level of specificity demonstrates that the Claimant did have a reasonable belief that the disclosures tended to show that the Respondent had or was likely to have committed the relevant failure. He was able to articulate with clarity why it was that the Respondent had breached the law and what the consequences of that were. We remind ourselves that the Claimant knew the Code from his previous employment. We do not accept that he needed to re-read a 75-page statute to somehow reinforce his view as this was an area he was familiar with from his previous role. Was the Claimant dismissed by reason or principal reason, of making one or more of the alleged Protected Disclosures contrary to section 103A of the Employment Rights Act 1996?[81]The Respondent has put forward two interlinking reasons for the Claimant’s dismissal, namely redundancy and poor performance.[82]We accept that there was a possible redundancy situation in the vague sense that from 11th May 2023 we can see a reference to possible job losses. We also accept that were other redundancies, albeit some 6 months after the Claimant was told he was being made redundant. We also accept in general terms that the Respondent was in financial difficulties.[83]We also accept that the Claimant was not off to a flying start, and that there were some concerns in relation to his performance in January 2023.[84]However, we have concerns with both of these explanations as being the reason for his dismissal.[85]First, IT infrastructure is crucial to the Respondent’s business. As Mr McArthur acknowledges at paragraph 45 of his statement, it appears odd to remove the Claimant, who was the CTO, from the structure. Moreover, the actual CTO job was absorbed by another employee, the Networks Director, David Hough, suggesting to us that there was still a requirement to do the CTO role.[86]Second, the way that the Respondent has presented its case as to the primary reason for the Claimant’s dismissal has been inconsistent. When the Claimant was dismissed, he was told that it was because he was being made redundant. There was no mention whatsoever of performance issues. In its ET3 dated 6th November 2023, the Respondent not only mentioned poor performance for the first time but asserted that the Claimant’s performance was the primary reason for terminating his employment, and that the reason was described to him as redundancy to “soften the blow”. During the course of cross examination, both Mr Woods and Mr McArthur maintained that redundancy was the primary reason for the Claimant’s dismissal. Mr Woods’ evidence was that poor performance was not mentioned because telling the Claimant that would not “add anything”. We remind ourselves that we must look at facts rather than labels, but nevertheless we find it concerning that the Respondent has not been able to present a consistent case as to the primary reason for the dismissal and has see-sawed back and forward as to it being just a redundancy, to primarily poor performance but also redundancy, to primarily redundancy with an element of poor performance. It is our finding that the Respondent recognised the inherent problem with trying to argue that the role of the CTO was no longer needed given the importance of the Respondent’s IT infrastructure, which is why, some 6 months after the dismissal, in its ET3, it mentioned for the first time that the primary reason why the Claimant was dismissed was in fact for poor performance.[87]Third, we have been referred to two sets of Board meetings after the Claimant’s dismissal, on 11th and 30th May 2023. In neither of these sets of minutes is there any reference to the Claimant having been dismissed on the grounds of redundancy. We find the absence of any reference to the Claimant’s dismissal on the grounds of redundancy at these Board meetings as at odds with Mr Woods’ explanation for the urgency of the Claimant’s dismissal. He tells us in his witness statement (at paragraph 39) that it was the investors who told them towards the end of April 2023 that they would need to downsize their workforce. He says that he and Mr McArthur decided to dismiss the Claimant in the context of needing to find a short-term way of cutting costs quickly (paragraph 41). If the decision to dismiss the Claimant was really to make a quick short term significant cost cut in light of the investors’ concerns, we are of the view that the Board (who include the investors) would have been informed of this at these board meeting where job losses were being discussed.[88]Fourth, and linked to the above point, Mr Woods actually told the Board at the meeting on 30th May 2023 that there had been no redundancies made, which on the face of it is wholly inconsistent with the claim that the Claimant was dismissed on the grounds of redundancy only a few weeks earlier. Mr Woods was cross examined on this point and at first suggested the reference to “no redundancies” was a reference to the large-scale redundancies that eventually came to fruition later in the year. When he was then asked why he would not tell the Board that he had just saved £135,000 a year making the CTO redundant, he said that did report this, but it has not been recorded in the minutes. We did not find these explanations consistent or credible.[89]Fifth, we are troubled by the lack of any procedure or documentation in relation to the redundancy. We remind ourselves that we are not judging the fairness of the dismissal, but for a very senior employee to be dismissed on the grounds of redundancy without there being a single letter or email or meeting or involvement of HR is most unusual, even for someone with less than 2 years’ service. We find the lack of supporting documents particularly odd given Mr Woods’ evidence at paragraph 39 of his statement that it was the investors who informed them that they would need to downsize their workforce. We are surprised to find not a single document corroborating this.[90]Sixth, and in a similar vein to the fifth point, to dismiss a senior employee on the basis of performance, even in the probation period, without any warning or review (apart from the 3-month review which he passed) is in our view most unusual. We have also had very limited evidence beyond the December 2022 report from Mr Waine to suggest that there were even any issues with the Claimant’s performance. The only documents hinting at performance issues we were taken to in closing submissions were an email at page 317 and email at page 406. The second of these emails does not actually reference issues with the Claimant’s performance but refers to resourcing issues.[91]Seventh, we note the callousness and speed with which the Claimant was dismissed. In terms of speed, we note Mr Woods’ statement refers to being told at the end of April 2023 that the private equity investors had told them to look at downsizing and by 4th May 2023 the Claimant had been dismissed. In terms of callousness, we note that the Claimant had no warning of dismissal at all, had been involved in a car crash that day but was still attended the urgent meeting. We find the harshness of this approach hard to reconcile with the fact that we are invited to find that Mr Woods and Mr McArthur were being kind to him by not mentioning his poor performance.[92]We accept that it is not simply a matter of elimination and the fact that we have concerns about the explanations relating to redundancy or poor performance are not enough on their own for the Claimant to prove his case.[93]However, in addition to the matters we have listed above, we have taken a very dim view of the Respondent’s witnesses. We have already referred in some of our findings of fact to the concerns that we have had with the credibility of the Respondent’s witnesses. We have been most unimpressed with the Respondent’s witnesses attempts to downplay their concerns about wayleaves. It is our finding that:• They were systematically not obtaining “build wayleaves” and committing trespass (at least in 2022).• There were concerns about this from a due diligence point of view and warranties point of view in terms of what their private equity investors did and did not know about.• Wayleaves were a big barrier to the growth of their B2B business which they were scaling up at the time, as the delays in connections would mean that they lost customers to competitors.• They were at the same time under pressure from their private equity investors to get more customer connections.• They saw wayleaves as a burdensome bureaucracy and were prepared to break the law if on their analysis the risk of them being sued was low and/or any damages they had to pay out if they were sued were outweighed by the profit they made.[94]We were particularly unimpressed by Mr McArthur’s attempt to convince us that he did not think of the failure to obtain a wayleave as an issue that could be perceived as trespass until the Claimant brought this claim. There are numerous documents from the Respondent that clearly state that trespass was an issue and we cannot comprehend that Mr McArthur as CEO will have seen none of them. Trespass is listed as the example of a legal consequence of failure to obtain a wayleave in their own manual. Even if Mr McArthur did not see any of his own his company’s wayleave documents that reference trespass, in our view trespass is the most obvious legal consequence of not obtaining permission to be on someone’s land. We simply cannot comprehend how a CEO who was party to numerous discussions about wayleaves would not have known that a failure to get a wayleave if one was required was trespass.[95]We were also unimpressed by Mr Woods’ attempt to convince us that there was no financial motivation for the Respondent in increasing its customer numbers. In his evidence in chief, Mr Woods referred us to the fact that the Respondent had secured a minimum volume commitment from TT – his suggestion being that as there was a guaranteed income stream, they did not need to worry about getting more customers. However, it is clear to us that they were trying to increase their customer numbers, in particular to branch out into B2B customers, and that wayleave delays were holding this up. It is obvious that signing up more customers to their network meant more income being generated.[96]We were likewise unimpressed by the reasons advanced by Mr Sutch for not adding the Claimant’s concerns about wayleaves to the discussion deck. He said that this was a one-off niche event and that the London central location made it non-comparable as the risk was deemed higher in the capital. We were not at all convinced that the situation in Mayfair was non-comparable. We find that Mr Sutch did not include the Claimant’s concerns because he did not want opposition to his plan.[97]We find that the Claimant was not prepared to toe the company line and was deeply troubled in particular with Mr Sutch’s proposal to bypass wayleaves with B2B customers (save in certain circumstances that we have already outlined) as it entered into this market. The Claimant struck us as a man of great integrity, who was clear in his view that law should be obeyed, regardless of whether you agree with it. His level of integrity was in stark contrast to the impression we formed of the Respondent’s witnesses, who came across as being prepared to break the law if they could do so without the costs to their business being too high. The Claimant’s ethical approach was clearly at odds with the approach of the Respondent’s senior management, Mr McArthur and Mr Woods, which is why they chose to dismiss him when it became obvious that he was not backing down and indeed becoming more vocal in his protestations that the Respondent was not obtaining wayleaves before installing their apparatus on private land when they should be.[98]We note that there is some evidence that the Claimant was not the only one who raised issues with wayleaves. We were referred in particular to Tony Moore and Steven Stringer appearing to raise issues and it was pointed out that they were not dismissed. We have not heard from either of these individuals and are unable to draw an accurate comparison of the concerns they raised. We do note that Mr Moore’s latter concerns appear to relate more to the private equity investors needing to be kept in the loop and Mr Stringer at one stage may have been advocating proceeding without a wayleave (in September 2022). As far as we are able to discern from the limited documents, they did not protest the wayleaves issue in the same vociferous way that we have found the Claimant did.[99]We also note the point that the Claimant had his probationary review in January 2023. The Respondent says that if it truly had an axe to grind, it would have just dismissed him at that point. However, by the date of the probationary review the Claimant had only made the one disclosure and on our findings, it was only after the discussion deck that the Claimant set out with specificity his concerns when he saw what the Respondent’s intentions were vis a vis B2B customers.[100]It is therefore our finding that the sole or principal reason why the Claimant was dismissed was because he made one or more of the protected disclosures that we have outlined above. Other Matters[101]The matter will now be listed for a remedy hearing to consider the appropriate level of compensation payable to the Claimant. The parties shall write to the Tribunal with their proposed dates. CERTIFICATE OF CORRECTION Under Rule 67, the
The Law
[1]The claim for a compensatory award in accordance with section 123 of the Employment Rights Act 1996 is well founded. The respondent is ordered to pay the total sum of £105,510.12.[2]This sum is calculated as follows: £161,125.44 loss of earnings from 4th August 2023 to 11th August 2025 Less net sums received during this period of £86,697.05 = £74,428.89 Less 10% reduction to reflect that the claimant may have been dismissed in any event after 6 months from dismissal (-£5,582.16) Total loss of earnings: £68,846.73£16,312.50 loss of pension from 4th August 2023 to 11th August 2025 Less 10% reduction to reflect that the claimant may have been dismissed in any event after 6 months from dismissal (-£1,223.34) Total loss of pension: £15,089.07 Total loss of earnings and loss of pension: £83,935.80 Grossing up of £53,935.80 x 40% =£21,574.32£83,935.80 + £21,574.32 =£105,510.12[3]The Employment Protection (Recoupment of Benefit) Regulations 1996 apply to this award. The claimant received benefits from the Department of Work and Pensions during the period of unemployment from 4th August 2023 to 11th August 2025 (the prescribed period) and 1996 Regulations provide for recoupment of those benefits, calculated as the prescribed element, from any Tribunal award for unfair dismissal. The respondent must withhold the prescribed element in order for the recoupment exercise to take place.[4]The prescribed element is £68,846.73 attributable to 4th August 2023 to 11th August 2025.[5]The balance to be paid by the respondent to the claimant, pending recoupment of benefit, is £36,663.39. The respondent must pay any balance of the prescribed element to the claimant after recoupment of benefits.