Employment Judge R MellorIn person for claimantDate 6 July 2023
JUDGMENT
[1]The claimant’s claim that the following disclosures were protected disclosures within the meaning of section 43B Employment Rights Act 1996 are dismissed as having no reasonable prospects of success: 1.1. Email 1- 4 October 2022 at 3:02pm, 1.2. Email 3- 4 October 2022 at 18:36pm; 1.3. Email 4 -5 October 2022 at 17:41pm.[2]The claimant’s claim that the following disclosures were protected disclosures within the meaning of section 43B Employment Rights Act 1996 have not been struck out, but are the subject of a deposit order: 2.1. Email 2 - 4 October at 17:14pm 2.2. Email 5 - 5 October 2022 at 12:04pm[3]The allegation that the email 6 October 2022 sent to Mr Patel and Ms Czijka at 08:57am is a protected disclosure shall proceed to the full merits hearing at which the tribunal shall consider the claim for automatic unfair dismissal contrary to section 103 A Employment Rights Act 1996 and detriment contrary to section 47B.
REASONS
[4]This hearing was listed at a preliminary hearing on 11 April 2023 to consider the following issues: 4.1. Whether any of the claimant’s outstanding protected disclosures are qualifying disclosures and are protected for the purposes of section 43 Employment Rights Act 1996. 4.2. If satisfied the claim or part of it has no reasonable prospects of success should the claim or part of it be struck out; 4.3. If satisfied the claim or part of it has little reasonable prospect of success should a deposit order be made, if so how much takin into account the means for the claimant.[5]The claimant was employed as Search Engine Advertising Lead by the respondent from 27 July 2022 until his dismissal on 7 October 2022. He was dismissed with immediate effect during his probationary period at a meeting on 7 October 2022, he was paid one week in lieu of notice.[6]On 1 November 2022 the claimant entered into early conciliation and the certificate was issued on 9 December 2022. The claim was issued 21 December 202. Given the issued complained about occurred between 4-7 October 2022 there are no limitation issues.[7]The claimant brought a claim for automatic unfair dismissal contrary to section 103A Employment Rights Act, and also detriment contrary to section 47B. The latter claim was not addressed in the earlier case management order probably because it was not clearly identified in the grounds of complaint. However, I am satisfied that it is a claim before the tribunal as it is contained in box 15 on the ET1 which clearly sets out the 5 alleged detriments.
The hearing
[8]For the purposes of this hearing I had a bundle of documents which ran to 76 pages, it included the pleadings and a further document prepared by the claimant, as ordered by Employment Judge Feeney, which sets out why he alleges the emails were qualifying protected disclosures in particular why they were in the public interest.[9]The bundle did not contain the emails themselves. Given I have to take the claimant’s claim at its highest and the respondent accepted receiving all of the emails I considered it necessary to see the emails. Neither party objected to this course and the 6 emails containing the alleged protected disclosures were provided to me.[10]As this was a preliminary hearing to consider strike out and/or deposit order I did not hear any evidence from either side. In any event the facts are not largely in dispute, in particular for the purpose of this hearing the alleged disclosures were made by email, all of which the respondent accepts receiving. There is no factual dispute therefore as to the content, timing or method of disclosure. Both parties had the opportunity to make oral submissions. Largely these echoed the written representations contained in the pleadings.[11]The only additional information I obtained was in relation to the claimant’s means in case that became relevant to my decision making on any potential deposit order. The claimant confirmed he commenced work in October 2022 and is in a better financial position than he was previously. When considering his means, rather than giving the detail of his means he confirmed that he could afford the maximum possible order I could make in this case which would be £6,000 (£1,000 per each allegation).[12]The hearing has been listed for three hours, which was not enough time to hear submissions and reach a decision as there was some delay in receiving copies of the emails. I therefore reserved my decision. Respondent’s submissions.[13]The respondent’s submissions were that none of the 6 emails amount to qualifying, protected disclosures. The general thrust of the submissions made by Ms Czajka was that the matters complained about by the claimant were internal employee relationships, they were not matters that could be said to fit within the six qualifying grounds under section 43B, and even if they were it could not be said they were in the public interest.[14]In particular Ms Czajka drew my attention to the following: 14.1. The first email relied upon sent at 3.02pm on 4 October 2022 was sent after issues were raised that the claimant was interrupting the claimant. He is highlighting and issue with employee relations; there was nothing in that email that indicated a breach of contract. 14.2. Whilst the claimant does refer to his own mental and physical wellbeing in his email of 4 October 2022 at 17.14 this was in response to a phone call that had taken place during which the claimant had been advised to compile a list of issues for it to be looked into by the respondent. This was therefore part of the process by which any issues were going to be looked into. In those circumstances the claimant cannot have believed his wellbeing was endangered and so it could not meet the test in 43B. Further it is not in the public interest and it had not got to the stage where it could be considered to be a breach of Health and Safety as they were dealing with it. 14.3. The email sent on 4 October 2022 at 18:36 was the claimant explaining his own actions and why he had revoked the admin access for Jasmine Brown. He repeats the allegations against her and this is again about employee relations and the claimant’s own inappropriate actions. It is not in the public interest. 14.4. The next email is 5 October 2022 sent at 07:41. The respondent submits this email relates to an ex-employee who had been employed through an agency so could not have been appointed as a Paid Acquisition Expert. 14.5. The email sent to Mr Patel on 5 October 2022 at 12:04pm was submitted to amount to a repeat of the original incident the day before. It is a repetition of allegations, and does not convey information and cannot be said to be in the public interest. 14.6. The final email was sent on 6 October 2022 at 08:57. Ms Czajka accepted that he email was headed “report of suspicion of serous criminal activity” but submitted there was nothing in the body of the email that could be said to amount to criminal activity; he did not raise any evidence. It was more hearsay relating to employee relationships. 14.7. Ms Czajka explained the respondent has around 390 employees. There were 4 staff in the claimant’s team including the claimant. They operate across 22 countries, and their headquarters is in Manchester. Claimant’s submissions[15]The claimant confirmed that he was relying on all of the emails, amounting to six allegations. However, as with the earlier preliminary hearing this was somewhat equivocal. He said that “if there was one primary driver behind what happened it would be the 6th of October”. This is something he repeated more than once. I conducted the hearing on the basis that he sought to rely on all 6 allegations.[16]The claimant made the following submissions in relation to each alleged disclosure: 16.1. He submitted that in saying “I must report a case of insubordinate behaviour from a member of my team” was him exposing a breach of a legation obligation (section 43B(1)(b)). He said that a lot of what he was trying to do with this email was provide an objective view on why the respondent was not complying and it was not aimed at Ms Brown. He felt she had a legal and contractual responsibility and that exposing it was in the public interest. 16.2. The second email was not repetition, but provides more context to the issues. He made it clear that he was expressing concerns for his own health and safety which he considered to be endangered. That he says is a breach of health and safety in terms of his own wellbeing and given the number of employees in his team and companywide that is in the public interest. 16.3. The third email dated 4 October 2022 at 18:26 the claimant said was about trying to ensure the proper channels were being followed he said: “It is aimed at the respondent and that is why I conveyed it. It may be no specific information…I am more justifying my actions”. 16.4. In respect of the email 5 October 2022 at 07.41 the claimant accepted that Ms Seibert was not working for the respondent any more. He said that this was about his position as her successor and ongoing relationships with her amongst those in his team. 16.5. The email of the 5 October 2022 to Mr Patel at 12:04pm is partly repetition, but he is expanding on the context and also why it is in the public interest because Distrelec is an infrastructure company in 22 countries. 16.6. The email of the 6 October 2022 is on the claimant’s case the most significant email. He submitted this was a disclosure of him raising a breach or potential breach of the Serious Crime Act 2015 and that is quite plainly expressed in the email. The email itself pulls all of the information together. It is in the public because it(a) protects the rights of employees(b) identifies the prevention of harm to the organisation and the public(c) highlighted accountability and transparency and(d) maintaining public trust as the organisation operates in an industry that requires public trust and confidence.[17]The claimant prepared a written document addressing why each of the alleged disclosures were in the public interest [72-26] I have considered that even if I have not specifically referred to it in these reasons. The Law Strike Out and Deposit
The Law
[18]Rule 37(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (‘the Rules’) provides as follows: “37(1) At any stage of the proceedings…a Tribunal may strike out all or part of a claim or response on any of the following grounds: (a) That it is scandalous or vexatious or has no reasonable prospect of success” Rules 39(1) and 39(2) of the Rules provide that: “39 (1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (‘the paying party’) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.”[19]No reasonable prospects of success means “more than merely fanciful” A v B an anor 2011 ICR D9 CA. The test for a deposit order is less rigorous and is “little prospect of success” albeit there must still be a proper basis for doubting the likelihood of the party being able to establish the allegations. If I do consider the claim, or allegation, to have little prospect of success it does not necessarily follow that a deposit order will be made. I still have discretion and the power has to be exercised in accordance with the overriding objective, having regard to all the circumstances of the case, including the need for case management and for parties to focus on the real issues Hedman v Ishmail and anor 2017 ICR 486 EAT.[20]I have considered the case of Cox v Adecco and ors 2021 ICR 1307 EAT in which the EAT gave guidance on the tribunal’s duties in relation to strike out applications against litigants in person in particular reminding tribunals that if the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate. Where there is a litigant in person care must be taken to properly identify the claims prior to determining whether there are reasonable prospects of success.[21]Special considerations arise where a tribunal is asked to strike out a claim of discrimination or whistleblowing. In Ezias v North Glamorgan NHS Trust 2007 ICR 1126 the Court of Appeal stressed that it will only b in an exceptional case that an application will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant are totally and inexplicably inconsistent with the undisputed contemporaneous documentation. An example of this can be found in Shestak v Royal College of Nursing and ors EAT 0207/08 where undisputed documentary evidence in the form of emails, which taken at their highest, could not support the claim.[22]Mechkarov v Citibank NA 2016 ICR 1121 EAT again confirmed that it is crucial I should take the claimant’s case at its highest. If the case is conclusively disproved by, or is totally and inexplicably inconsistent with, undisputed contemporaneous documents then it might be appropriate to strike it out. Whistleblowing[23]Section 43B ERA defines a qualifying disclosures as ‘any disclosure of information’ relating to one of the 6 specified categories 43B1 (a) to (f). It doesn’t matter if that information was already known to the employer.[24]Information can cover statements that might also be characterised as allegations, so these are not two mutually exclusive categories. The word information has to be read with the qualifying phrase ‘tends to show’ meaning the worker must reasonably believe that one of the relevant failures has, or is likely to occur. Thus the disclosure must have sufficient factual content to be capable of tending to show one of the matters listed Kilrane v London Borough of Wandsworth 2016 IRLR 422 EAT.[25]Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed (Public Concern at Work intervening) 2018 ICR 731 CA (‘Chetserton’), addresses the issue of whether private employment disputes can raise a public interest. The Court of Appeal noted there may be features making it reasonable to regard the disclosure as being in the public interest as well as personal. Features may include the numbers in the group whose interests the disclosure served, the nature of the interests affected, the nature of the wrongdoing and the identity of the alleged wrongdoer. This case was further considered in Dobbie v Felton t/a Feltons Solicitors 2021 IRLR 679 to which I have had regard. Discussion and Conclusion.[26]As set out earlier in these reasons, this is not a case where there are any central facts in dispute. The alleged disclosures are contained within emails and there is no dispute they were sent by the claimant or received by the respondent. My task is to consider, whether taking the claimant’s case at its highest, the claim and/or each allegation has no prospects of success, little prospects of success or ought to proceed to a full hearing unencumbered. I have considered each disclosure in turn.[27]I have also considered the fact that the claimant is a litigant in person. He was originally assisted by a solicitor in the drafting of his grounds of complaint. In this case the fact that he is a litigant in person has not had any, or any significant, impact. The claims were well pleaded and the alleged disclosures were clearly identified with the claimant being given the opportunity to clarify those if necessary. He also very skilfully addresses each alleged disclosure in turn. Email 1 – 4 October 2022 3:02pm.[28]The claimant’s case is this amounted to disclosing information that tended to show a person has failed, or is likely to failed with a legal obligation to which he is subject (43B(1)(b)). That this tends to show Ms Brown was in breach of her contractual obligations of subordination and to work within the limits of her authority.[29]The content of this email does not provide sufficient information to meet the necessary test. Whilst a disclosure can include allegations as well as convey facts, this email makes an allegation of insubordination, but does not explain with sufficient detail what that insubordination was so as to amount to a failure to comply with a legal obligation. It does not make any reference to either Ms Brown’s or the respondent’s contractual obligations. In his submissions Mr McManus said that this was aimed at the respondent not Ms Brown, but there is nothing in the email that conveys any information relating to the respondent’s legal obligations or how the respondent is failing to comply with such obligation.[30]Further, this was written in response to questions about the claimant’s conduct. That does not necessarily prevent a disclosure from occurring, and the respondent can know about the information and it still amount to a disclosure. However in this case the information being shared is more to do with the claimant’s and Ms Brown’s conduct, as opposed to any failings within section 43B.[31]Even taken at its highest, this allegation has no prospects of success. Further, there are no prospects of successfully arguing the claimant reasonably believed this was in the public interest. Although he submitted she was “acting beyond her authority and making decisions that exposed the organisation to financial risks” that is inconsistent with the disclosure itself, which made no reference to her making decisions or acting beyond her authority. The closest to that is an allegation she said “it was her territory”.[32]I have therefore struck out this allegation as having no prospects of success. Email 2 – 4 October 2022 17:14pm[33]The claimant’s case is this email discloses information that tends to show the claimant’s health and safety was being or was likely to be endangered (s43B(1)(d)). His case is this disclosure is in the public interest due to the legal requirement on employers to meet the obligations under the Health and Safety at Work Act 1974 and there is a public interest in exposing the breach and potentially preventing harm to other employees.[34]The email itself is long and is titled “Formal List of Concerns re: Jasmine Brown (team member) & Chrstin Seibert (predecessor)”. The relevant part of the email appears to be: “Due to Jasmine’s highly subjective accusations as well as inappropriate, disruptive behaviour and the additional time taken to deal with these situations, to date I have found myself working circa 20 hours per week more than would otherwise be necessary to carry out my responsibility to the standard expected. I do not see myself being able to maintain this position for much longer whereby I will make career decisions in order to protect my physical and mental wellbeing.”[35]The claimant has clearly referenced his own physical and mental wellbeing. That is against the context of the rest of the email in which he complains about the difficulty he has experienced managing the team, taken at its highest, might be enough to satisfy a tribunal he has conveyed information tending to show that his health and safety has been endangered.[36]However, I do consider there to be little prospects of the claimant succeeding on this alleged disclosure being in the public interest. This clearly arises out of a private dispute in the claimant’s place of work, even on the claimant’s case. Taking into consideration the types of factors identified in Chesterton, in particular the nature of the wrongdoing and the alleged wrongdoer it is hard to see why this internal dispute, which potentially impacts the claimant’s wellbeing, amounts to an endangerment of health and safety to the degree it is in the public interest. It is a very unique set of circumstances that relates to a very limited number of people. I cannot say there are no prospects of success, but I do consider there to be little prospect of success in relation to this disclosure.[37]Having considered there are little prospects of success, I have subsequently considered whether I ought to exercise my discretion to make a deposit order. I have considered the overriding objective and in particular the need to case manage and focus on the issue in the case. In this case, the claimant has been somewhat equivocal as to whether any of the alleged disclosures are in fact disclosures. In particular he relies on the 6th email, which he says is the real driving force behind the alleged detriment/dismissal. Therefore, focusing on the real issues in the case with an eye on proportionality to cost and time I have decided to exercise my discretion and order a £1000 deposit in respect of this allegation, such sum taking into consideration the purpose of a deposit order balanced against the means of the claimant and his ability to continue to pursue the allegation if he wishes. Email 3 – 4 October 2022 18:36[38]The claimant’s claim is this email discloses “information that tended to show that Ms Brown was in breach of her contractual obligations of subordination and to work within the limits of her authority (s.43B(1)(b) ERA 1996). It is in the public interest for employer/employee relations to function effectively”[39]This email was sent in response to an email from Mr Morris noting that cutting Ms Brown’s access was a ‘big move’, so it is the claimant justifying his actions. Something the claimant himself noted in submissions. He is therefore conveying information about why he removed admin privileges of PPC accounts. Whilst there are allegations about the behaviour of Ms Brown it is not a conveyance of information that tends to show a breach of a legal obligation, it is him noting that he felt Ms Brown was insubordinate and that her actions were ‘incredibly distasteful’. It therefore does not meet the requirement of disclosing information that tends to show a breach of contractual obligations within the meaning of section 43B as clarified by Kilrane.[40]Further, I do not consider there to be any prospect of satisfying the tribunal that the claimant reasonably believed this was in the public interest. When considering the matters set out in Chesterton again this is one individuals action of overstepping in a meeting which the claimant stopped. There is no legal obligation there that has been failed, or likely to be failed, that could be said to be in the public interest.[41]I have therefore struck out allegation 3 relating to this email. Email 4 – 5 October 2022 7:41am[42]The claimant as part of the chain of emails relating to the above email rises a question over his predecessors qualifications: “I now believe Christin Seibert has mislead Paul Morris and the reasons Christin presented to Paul for delay of projected were false. Personally, from a hard skill perspective I do not believe she has ever been a Paid Acquisition expert”. Ms Seibert no longer worked for the respondent. The claimant has alleged his opinion that she was not a Paid Acquisition Expert, but that does not convey information that a person has failed, is failing or is likely to fail to comply with a legal obligation to which he is subject.[43]In his submissions the claimant said this was more context on the actions he took and it is additional information. He felt it was relevant because members of his team were still in contact with her. Assuming that is right, it still does not convey information. I do not consider this allegation to have reasonable prospects of success. I have therefore struck it out. Email 5 – 5 October 2022 12:04pm[44]To some extent the claimant is repeating earlier allegations in this email. However, he puts in more detail and links it to what he describes as risks to the budget he is responsible for. The legal obligations he says have been or are likely to be failed are unclear and it is muddied by what appears to be internal employee relationships being strained. I consider there to be little prospects of success in relation to this allegation both in relation to the claimant satisfying a tribunal there is the conveyance of sufficient information, but also why this private issue is in the public interest . For the reasons already expressed I do consider it appropriate to exercise my discretion under rule 39 and accordingly make a deposit order of £1000 in respect of this allegation. Email 6 – 6 October 2022 08:58am[45]This email is, as the claimant identifies, the force behind his claim. Here he includes the title “Report of suspicion of serious criminal activity”. He lists the assumed criminal activity and the criminal legislation he considers may have been breached. He also raises issues connected to the Equality Act and the possibility of one of his colleagues being treated less favourably due to his sexual orientation.[46]It is not entirely clear from this email which facts are said to amount to which breaches of a legal obligation or criminal offence, but I consider there to be enough detail contained within it that requires further exploration by the tribunal on full evidence.[47]This allegation shall proceed to the full hearing already listed.[48]Orders for the hearing and a revised list of issues are contained within a separate case management document sent to the parties with this judgment.