The claimants complaints of unfair dismissal and protected interest disclosure are not well founded are hereby dismissed.
REASONS
[1]Mr Alex Scrimgeour, the chief executive of the respondent company and Ms Amy McKarry, and area manager for the respondent gave evidence on behalf of the respondents. The claimant gave evidence on her own behalf. She also produced witness statements for Ms Sarah Greenan, a line manager in a previous employment which was a signed witness statement and an unsigned witness statement for Mr Stephen Shackleton the HR recruitment advisor for the Giraffe who were the claimant’s former employers.
The Law
[2]The law which the Tribunal considered was as follows:- 2.1. Section 43(a) of the Employment Rights Act 1996 - In this part a protected disclosure means a qualifying disclosure as defined by section 43(b) which is made by a worker in accordance with the sections referred to below. 2.2. Section 43 (b)- 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) A criminal offence has been committed, is being committed or is likely to be committed 2.3. It was noted under Section 43(c) that the disclosure in this case was made to the employer which was conceded. 2.4 Section 47 (b) of the Employment Rights Act 1996 – “A worker has the right not be subjected to any detriment by any act or any deliberate failure to act by his employer on the ground that the worker has made a protected disclosure”. 2.5. Section 103 (a) of the Employment Rights Act 1996 – “An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.” 2.6. The Tribunal also considered and was referred to the case of Chesterton Global Limited -v- Nurmohamed -the Court of Appeal decision 2017 EWCA CIV 979. We were also provided by the claimant’s representative with a copy of the EAT decision in that case Chesterton Global Limited v Nurmohamed 2015 ICR 920. We were referred by the respondent’s representative to a number of paragraphs in the Court of Appeal decision namely paragraphs 5, 12, 26-31, 34, 36-30. In a nutshell that decision set out some guidelines about was required in relation to protected interest disclosure and whether it was in the public interest. It set out four basic principles - whether the worker believed at the time of making the disclosure that it was in the public interest; whether that belief was a reasonable belief; it acknowledged that there may be more than one reasonable view; it stated that the Tribunal should not substitute it’s our own view as to whether it was in the public interest. In relation to the third principle it was recognized that the issue of whether it was in the public interest may not be the only motive for making that disclosure. 2.7. The claimant’s representative referred us to the EAT judgment and in particular paragraph 36 thereof.
The Issues
[3]The issues which the Tribunal in this case had to determine are set out in the case management order of 20 February 2018, in particular paragraph 6 thereof namely did the claimant make a public interest disclosure when she raised concerns about managers stealing from the respondent. It is noted that the respondent concedes this point, but before us it has been argued that this was not a public interest disclosure because it was not made the public interest.[4]The second issue is whether the claimant suffered a detriment because of the disclosure. The detriment alleged was the unreasonable extension of the claimant’s probationary period on 9 September 2017.[5]Thirdly whether the reason or principal reason for the dismissal was that the claimant had made a protected disclosure.
Findings of Fact
[6]The respondents are a national chain of restaurants which have over 90 restaurants across the company and employ over 3,000 staff.[7]The claimant was employed as an assistant general manager with the respondent company from 19 June 2017. She was recruited to work at the respondent’s new outlet due to open in Newcastle later in 2017.[8]The offer made to the claimant of employment was subject to acceptable references as noted at page 42 of the bundle. The first 13 weeks of her employment were a probationary period. In her acceptance for the job, the claimant was asked to nominate two references. She nominated Audrey Wallace of Casual Dining Group, who she said was a previous line manager and Sarah Greenan of BACN who she also said was a previous line manager as noted at page 31 of the bundle.[9]The claimant’s CV is at pages 27 to 28 of the bundle. Her last employment prior to joining the respondents was with Marco Pierre White from November 2016. Prior to that, she was employed by Casual Dining Group and then between June 2014 and December 2014 she was employed by Giraffe in Newcastle. Between November 2011 - June 2012 she was employed by Causal Dining Group; between March 2010 - March 2011 she was employed by Frankie and Bennys in Newcastle. She worked at Tiger Tiger between 2004 and 2008. The claimant said that this was part of the Novelle Dining Group, which was where she worked with Sarah Greenan.[10]The references which the claimant used were Casual Dining Group. This was not her most recent employment but her second most recent employment and part of other employment in 2008, albeit she had worked at other restaurants in between.[11]The respondents have a provided an extract from their hand book. The reference to protected interest disclosures are at page 54 A of the bundle. It basically refers to the statutory provisions of would amount to public interest disclosure and goes on to indicate that is must be in the public interest and that the person making the disclosure must have a reasonable belief that it is a public interest. The section in the handbook indicates that there must be reasonable belief that the wrongdoing has taken place or is likely to take place. In their policy the respondents make it clear that they will investigate the matter.[12]The claimant commenced her employment with the respondent on a five week training programme in June2017. Part of that training included training on cash handling procedures. She received good feedback from her training programme.[13]She moved to the respondent’s restaurant in Edinburgh to provide management cover in early August 2017. She said that Damian Maughton who I will thereafter refer to as “Damian”, was a general manager from Liverpool who, when he first met the claimant said that he has concerns about Andrew Laird another manager working at Edinburgh. Andrew Laird was also due to move to the Newcastle outlet like the claimant when it opened. These managers were all relatively new. Mr Laird was still in his probationary period.[14]The claimant said that Damian expressed concerns Andrew Laird was not cashing up properly. She said that she did a handover document when she highlighted the concerns about cashing up. This is at page 58 of the bundle. In evidence Ms McKarry, who was the area manager, said that she received a lot of handovers from various restaurants. She managed 11 in her area. She said that it was clear who had completed this document, but said that it did not really raise any major concerns at this stage as there was often difficulties or some discrepancies with cashing up. She said this was a cash business and there were often some delays in cashing up being finalised.[15]On 8 August 2017 Damian raised concerns in writing with Amy McKarry about Mr Laird. He raised concerns about Mr Laird having problems with cashing up and about his attitude generally. As indicated, Mr Laird was in his probationary period. He was subsequently dismissed by Damian on 12 August 2017. Although there were problems identified with cash missing, he was actually dismissed because of an issue about him being found on the premises after hours, cooking food for himself.[16]The issue about the missing cash was reported to the police. No action was taken against Damian for raising this issue about Mr Laird. Indeed Ms McKarry seemed to treat these concerns about Mr Laird as having been raised by both the claimant and Damian. On cross examination, the claimant accepted that no action had been taken against Damian for raising this issue about Mr Laird, which transpired was similar to the issue which was subsequently raised by her about Damian.[17]Cash continued to go missing from the restaurant in Edinburgh. The claimant says that an issue was subsequently raised by Damian in late August regarding missing stock. She said that there were two cases of wine missing. She was concerned that Damian was manipulating the stock figures. She was also concerned that he had also been misleading the respondent about going to Poland for a wedding with his girlfriend.[18]Ms McKarry came to the Edinburgh restaurant to do some stock taking but also to cover some shifts over the bank holiday weekend in August. She worked with the claimant. She said that she thought the claimant worked well in the restaurant and that she had no major concerns about her. She says that the claimant raised the issues about her concerns regarding Damian and the missing cash and stock with her. She said that she told the claimant that she would investigate it. She did say in evidence to the Tribunal that she thought that Damian had probably just been a bit sloppy about not getting credit notes for the missing stock.[19]The claimant said that she also spoke to Lucas Pires who had taken over from Damian. The latter had to go back to the restaurant in Liverpool. She said that, when she mentioned her concerns about Damian regarding the missing wine to Mr Pires, she said that Mr Pires had said that he had similar concerns about Damian when he had worked with him in Liverpool.[20]On 4 September 2017 the claimant sent an e-mail to Ms McKarry raising concerns about Damian’s honesty. That e-mail is effectively what is described as the public interest disclosure in this case. It is at pages 90 to 91 of the bundle. In the e-mail, it is stated that the claimant is raising a number of things. She raises concerns about Damian’s honesty. She refers to the issue with regard to cash missing and about Andy Laird having allegedly taken the money. She also refers to the missing stock. She further suggests Damian was not in Poland last weekend as he had said. She refers to talking to Lucas Pires about her concerns. She goes on to say that it had taken a lot for her to e-mail about these concerns, because she is new to the respondents’ business.[21]The claimant did not lead any evidence in Tribunal about why she says that she had raised this concern and thought it was in the public interest. She was cross-examined about the matter. She did not suggest in answer on crossexamination that she necessarily thought it was in the public interest, although when she was pushed about the matter, she suggested that she might still go to the press. She also suggested that there might be a wider issue in the respondent’s business, but she did not raise that in her e-mail of 4 September. She did not give any real reason for her disclosure. She appears to have had a concern about Damian and whether Andy Laird was really to blame for the missing cash. This also has to be put in context - all three of them were the managers working at the Edinburgh restaurant at the time, and the claimant may have been trying to exonerate herself. However, Ms McKarry made it clear in evidence that she did not have any concern that the claimant might have been involved in the missing cash or missing stock.[22]Ms McKarry replied to the e-mail on 4 September and indicated that she would investigate it. Her e-mail is at page 90 of the bundle. She goes on to indicate that she will do the claimant’s three month probationary review the following week. Ms McKarry said that she would not normally do a three month probationary review, but that Damian had been moved back to the Liverpool restaurant by that stage.[23]Ms McKarry said that, when she returned to the Edinburgh restaurant on 9 September 2017 for the claimant’s probationary review, she was shocked at the state of the paperwork. The details of that are set out at paragraphs 12 and 13 of her witness statement. Basically she indicated that the paperwork was scattered and incomplete and some paperwork was not signed. She said that she looked at paperwork over a period of months. She said it took her 4 - 5 hours to sort it out into order. She said that this was of particular concern because concerns had been raised about missing cash and stock at the Edinburgh restaurant. Ms McKarry said that the paperwork related to all of the managers and it was the responsibility of all of them, including the claimant. She said that there were examples of where the claimant had not properly completed the paperwork and complied with the cash handling procedures. By that stage, Mr Laird had been dismissed and Damian was on annual leave.[24]In evidence before the Tribunal Ms McKarry said that she decided to extend the claimant’s probationary period to ensure that the claimant’s cashing up procedures and administrative duties were up to scratch. She said that she did not have any issue with the claimant in any other areas. She said she had extended the claimant’s probationary period for six weeks to ensure that her administration was properly in place before the claimant moved to the Newcastle restaurant when it opened.[25]Ms McKarry said in evidence before the Tribunal that she raised and discussed these matters with the claimant at the meeting on 9 September. The detail of that is set out at paragraphs 12 and 13 of her witness statement.[26]The claimant said in evidence that, although there was some mention about the paperwork, at the meeting of 9 September she did not consider that she was responsible. She said that she had not been in the Edinburgh restaurant for the last couple of days and that the system about filing paperwork had already been set up before she joined the restaurant. The claimant, in contrast, says that the meeting on 9 September was not about the concerns raised about the paperwork but that Ms McKarry talked about the issues with regard to stock and cash shortages. She said that there was also a comment made about Mr Laird’s references not being taken up. Paragraph 17 of the claimant’s witness statement sets out this in detail. She says that Ms McKarry did not give her any reason for her probationary period being extended. She also says that she did not make any reference to issues about performance, yet as indicated in her evidence she did acknowledge that there was a discussion about the paperwork.[27]Ms McKerry said that she did discuss the problems of the cashing up procedures and the problems encountered when she went to the Edinburgh restaurant with regard to the filing and administration. Ms McKarry said that, during the meeting, the claimant also raised the issue about Damian and his whereabouts that weekend and that she raised an issue about her references not being taken up. Ms McKarry told the claimant that she was going to follow up the position with regard to all the references, as a number of new starters had commenced employment with the respondents, and she was going to chase them all up.[28]Ms McKarry then said that she asked Mr Pires to type up a list of improvements for the claimant. No evidence was led by the claimant challenging the reason for her probationary period being extended at that time.[29]On 13 September 2017, Mr Pires sent an e-mail to the claimant, which is at page 97 of the bundle. In that e-mail he refers to a number of issues that need to be addressed with regard to cash handling procedures. He starts the e-mail indicating that it is a follow up on the extension of the claimant’s probationary period and that he has typed up all the steps that need to be followed up on.[30]In her evidence to the Tribunal, the claimant indicated that this was just Mr Pires suggesting a different way of working on an administrative basis. Ms McKarry was not challenged on her evidence in relation to this e-mail during the course of these proceedings.[31]Mr Alex Scrimgeour is the CEO for the respondents. He attended to give evidence before this Tribunal. He explained said that verbal references were often given by colleagues in the restaurant business. He said in evidence to the Tribunal that, around the time of the opening of the trial of the Newcastle restaurant, he received a tip off from a friend/colleague at a very senior level who was in the same business but working for another company. He said the tip off related to the claimant, whom he had never met nor did he know anything about her. He said that he would not normally have any dealings with assistant general managers. They would be managed through the normal management structure.[32]Mr Scrimgeour said his contact had been told him that he had been told by a senior person in his organization (i.e. the source’s organisation) not to employ the claimant. Mr Scrimgeour was told that the claimant was not trustworthy and that there were financial irregularities concerning her. This information had come from someone in the other organization, who had previously managed the claimant in another job. No other details were given or sought.[33]Mr Scrimgeour said that his contact had indicated that the information was confidential information. He did not want to reveal the source or indeed the source’s source to protect them. He said that there was a practice of giving verbal references in this way, and there were issues around integrity and trust in operating in this way. He did not want to reveal the details of his source, because he did not want it impact on the goodwill he had built up over many years.[34]In evidence before the Tribunal, Mr Scrimgeour said that he had asked his source prior to giving his evidence before the Tribunal if he could reveal his details. He was asked by his source not to do so, and he respected his contact and did not reveal any further details.[35]Mr Scrimgeour said that he told the respondent’s HR director to dismiss the claimant, because of the information which he had been provided with by his source. This message was then passed through to Amy McKarry, who was told to dismiss the claimant because of unsatisfactory references. Ms McKarry said that she was resistant to this decision. She wanted to keep the claimant on, but she was told that the decision had been made at a higher level. She said that she was also told that a verbal reference had been provided from Giraffe through a colleague of hers, Ms Christie in HR, who said that they would not re-employ the claimant. Ms Christie did not attend to give evidence to the Tribunal.[36]The claimant has subsequently, for the purposes of these proceedings, obtained a written reference from Mr Steve Shackleton who is the HR manager at Giraffe. He has stated that there were no negative comments about the claimant. He has also provided a screenshot from the claimant’s records held by Giraffe indicating that they would re-employ the claimant. Those documents are at page 146A and 147 of the bundle. Mr Shackleton has also provided an unsigned witness statement to that effect.[37]Ms McKarry sent the claimant a letter inviting her to attend a meeting to discuss her unsatisfactory references. That letter is at page 99 of the bundle. The claimant responded to the e-mail on the same date, raising concerns about the extension of her probationary period and the issue now being raised regarding her references. She stated that these matters were all being raised because of the disclosure she had made. The claimant’s e-mail is at page 102 of the bundle.[38]Ms McKarry responded to that letter. She made it clear that she was acting on the issue raised by the claimant regarding Damian in the claimant’s e-mail of 4 September and investigating those issues. She said that the meeting scheduled for 15 September was to deal with the issue of unsatisfactory references. That email is at page 101 and 102 of the bundle.[39]The meeting with the claimant took place on 15 September 2017. The notes of that meeting are at page 106 of the bundle. It was a very brief meeting. Ms McKarry told the claimant that she was being dismissed because of unsatisfactory references. She did not provide any details or explanation. The Claimant was told it was a verbal reference which had been given, which was confidential and was unsatisfactory. Ms McKarry did not indicate that the information had been provided to the CEO.[40]On 18 September 2017, the respondent wrote to the claimant to confirm her dismissal for unsatisfactory references. In that letter Ms Mckarry made it clear that the claimant was not being dismissed because of any disclosure which she had raised and that those matters would be followed up. That letter is at page 107 to 108 of the bundle. The claimant was given a right of appeal.[41]On 18 September 2017, Ms McKarry held an investigatory meeting with Damian regarding a number of issues, including the issues raised by the claimant. The date of the meeting was indicated to be 18 August, however the notes are signed by all parties on 18 September. Those notes are at page 153 to 164 of the bundle. The conclusion from that investigatory meeting was that Damian was to be called to a disciplinary meeting.[42]Damian continued to work in the business until another issue arose in early October 2017, following which he was then suspended. This issue related to a cash loan which had not been properly recorded. An investigatory meeting took place about that matter on 16 October 2017; the notes of that meeting are at pages 168 to 169 of the bundle. Damian was invited by way of a letter of 9 October to a disciplinary hearing to consider a matter of gross misconduct. The hearing was scheduled to take place on 11 October 2017. The issues which were to be considered at that meeting are set out at page 171 of the bundle. They include failure to follow the cash handling protocols; failure to ensure all monies accrued during work are accounted for and paperwork is completed correctly and signed accordingly. It also refers to two other matters. These issues related to a number of the issues raised by the claimant in the disclosure email of 4 September. Damian resigned before that disciplinary hearing.[43]On 22 September 2017, the claimant appealed against the decision to dismiss her and argued she was dismissed because of the disclosures she had made. An appeal hearing took place on 9 November. Notes of the appeal hearing are at pages 118 to 124 of the bundle. During the course of the appeal hearing, the claimant was asked if she had been dismissed previously. She indicated that she had not, but that she did not want to talk about something that happened ten years ago. In evidence to the Tribunal, the claimant was crossexamined about this issue as to whether she had been previously dismissed. She said that her employment had been terminated during a probationary period when she was aged 19. She was somewhat selective in the responses which she gave on cross examination on this issue, and selective on what she said during the appeal hearing on this issue. She was also somewhat selective about the questioning of her CV. During the course of cross-examination, she conceded that she occasionally omitted certain employment from her CV, and used references that were not her most recent references.[44]The claimant’s appeal against her dismissal was dismissed. It is clear to this Tribunal from the evidence which we have heard in the last couple of days that the claimant’s dismissal would not have been overturned, as the decision to dismiss her had come effectively from the CEO. The outcome of the appeal hearing is set out in a letter at pages 125 to 130 of the bundle.[45]The claimant brought proceedings to this Tribunal for protected interest disclosure and unfair dismissal in December 2017. The respondent filed a response.[46]In their ET3, the respondent indicated that the claimant had been dismissed because of poor references. Their ET3 made no reference to the matters which had been raised and discussed during the course of these proceedings by the CEO. The reason given in the last couple of days for the claimant’s dismissal was because of the verbal reference given to the CEO by a contact within the industry. Indeed the ET3 suggested that there was another verbal reference taken up by Ms Christie, which seems to be somewhat misleading, and no doubt it seems to us, contributed to the claimant pursuing these proceedings before us today.[47]During the course of these proceedings the claimant obtained a witness statement from Mr Shackleton as we have indicated previously. She also obtained a witness statement from Ms Greenan who indicated in her witness statement that she was the claimant’s line manager at BACN, but the claimant admitted in cross-examination that she had not worked at BACN but at another organisation with Ms Greenan. The reference by Sarah Greenan had been given to the respondent on 8 September and is at page 92 of the bundle. It indicates that the claimant left the organisation, as she did not get on with her line manager ,which in evidence and cross-examination the claimant refuted.[48]Both Mr Scrimgeour and Ms McKarry stated in their evidence that the matters raised by the claimant about a couple of cases of wine and some cash going missing, although of interest, were not major issues for them in their industry. Ms McKarry said that problems with cash arose from time to time and that there were time delays with cash drop offs. Both Mr Scrimgeour and Ms McKerry said that they would want to be aware of these problems, but overall these were the type of problems which were not significant overall in the restaurant industry, which is a cash business.[49]The Tribunal would like to comment on the oral evidence which has been provided in this case. We found the respondent’s oral evidence from both their witnesses to be clear, credible and consistent throughout, whereas the claimant’s evidence in contrast was at times selective. Ms McKarry said in evidence to the Tribunal that the matters raised by the claimant would not be something for which the claimant would be penalized, because they were matters which should be brought to the attention of the respondent and would be investigated. Indeed they were investigated by the respondents. Mr Scrimgeour went further to suggest that it was ludicrous the respondent would dismiss the claimant for raising such matters, because in the business in which they operated matters of this nature should be raised. so that they could be investigated. Submissions[50]The respondent submitted that the disclosure of 4 September was not a public interest disclosure because it was not in the public interest. He submitted that it was only in the interests of the claimant and relied on the case of Chesterton. He also submitted that the claimant did not suffer a detriment, even if it was a public interest disclosure because the reason for the extension of the probationary period was not due to any disclosure, but because of the problems with cash handling protocols. He further submitted that the claimant was dismissed because of the verbal reference given to the CEO, and not because of any disclosure.[51]The claimant’s representative submitted that it was a public interest disclosure and that it was in the public interest. As indicated, he referred to the EAT judgment in Chesterton and submitted that this protected interest disclosure was not a personal issue. He further submitted that the reason for the claimant’s probationary review not being extended was because of the public interest disclosure and that that was also the reason for her dismissal. He indicated that the concern about the reference appeared to have been raised after the claimant was dismissed. He relied on the response to the ET1 claim. He referred to the fact that there was no reference in the ET3 to the evidence given before this Tribunal by the CEO. Findings of Fact[52]This Tribunal reminded itself that the burden of proof in this case was on the claimant.[53]The Tribunal applying the principles set out in the case of Chesterton do not consider, on balance, that the disclosure on 4 September was made in the public interest. We consider that it was made in the interest solely of the claimant, but was not necessarily in the public interest. We also do not believe that the claimant herself believed that it was in the public interest. She never indicated in the email that it was in the public interest, nor did she, at any stage, indicate this either during the course of her evidence to this Tribunal. There was no written or oral evidence given to that effect. Indeed when she was cross-examined on this issue, she suggested this was part of a wider issue for the respondent but had not mentioned that in her email. It was only when challenged about the matter on cross examination; she suggested that she might go further with this disclosure and disclose it to the press. Accordingly, for that reason on balance we do not consider the disclosure would amount to a public interest disclosure.[54]In any event, it is clear to this Tribunal, having heard the evidence in this case, that the claimant did not suffer a detriment as a result of making an alleged public interest disclosure nor was she dismissed for that reason.[55]We accept the evidence given by Ms McKarry that the claimant’s probationary period was extended, because of the administrative problems and the problems with cash handling protocols, which Ms McKarry encountered when she went to Edinburgh to do the claimant’s review. She described the administration cash handling products as being in a mess. She said that all of the managers including the claimant were responsible for some of these administration handling problems. We believe her and that was the reason for the claimant’s probationary period being extended.[56]Ms McKarry’s evidence on this issue is supported by the e-mail sent to the claimant following that review meeting on 13 September 2017. The email specifically refers to the review and clarifies the procedures to be followed by the claimant for administration and cash handling procedures. This Tribunal prefers the evidence of Ms McKarry which was clear and consistent, to that of the claimant with regard as to what was discussed at the meeting on 9 September 2017.[57]This Tribunal finds that the reason for the claimant’s dismissal was a directive from the CEO following a tip off about the claimant. The verbal reference given second hand to the respondent’s CEO, by a senior colleague in the industry was confidential and raised serious concerns in the CEO’s mind about the claimant’s continued employment. He effectively told his management team that the claimant should be dismissed. It was clear from his evidence that he would not have waivered from that decision.[58]The fact that no enquiries were made about the genuineness of that information is we, the Tribunal, acknowledge somewhat unfair to the claimant, but this was a decision that the CEO could and did take in these circumstances. We should comment that we have some sympathy for the position that the claimant found herself in in this case. It is not surprising she brought this claim, as she was given no proper explanation for her dismissal which led her to believe that it related to her disclosure. She was not assisted by the information, or rather misleading information provided in the ET3, which did not set out the full or rather real reasons behind the decision to dismiss the claimant. We acknowledge that the timing of the extension of the claimant’s probationary period and her dismissal a few days after she raised a potential disclosure would have added to the claimant’s concern that she was being dismissed because of that alleged disclosure, but the timing was in this case purely coincidental.[59]Accordingly the claimant’s complaints of unfair dismissal and protected interest disclosure are not well-founded and are hereby dismissed.