Employment Judge AyreIn person for claimantMr J Lewis (instructed by Counsel) for respondentDate 8 March 2022
JUDGMENT
[1]The following companies and individuals will not be added as respondents to this claim:-a. Kemin Europa NVb. Kemin Industries Incc. Kemin Nutrisurance Europe srld. D Abratee. S Moraisf. D Beltramig. A Yersinh. J Mayi. Mr Bertuzzo[2]Mr Eric Creemers will be removed as a respondent to this claim.[3]The claimant shall be permitted to amend his claim to include new protected disclosures[4]There shall be no deposit orders made.[5]There shall be a further preliminary hearing for case management purposes which will take place by telephone at 3pm on 6th March 2019 with a time estimate of 90 minutes. 2601383/2018 10.5 Reserved judgment with reasons – rule 62 March 2017
REASONS
[1]The claimant was employed as a Sales Manager from 4 April 2016 until 20 March 2018 on a contract of employment which lists Kemin UK Ltd as the employer.[2]By claim form presented on 18 June 2018 the claimant brought complaints of automatic unfair dismissal under section 103A of the Employment Rights Act 1996, for whistleblowing detriments and for wrongful dismissal. The claim form named the following as respondents:-a. Kemin (UK) Ltd;b. Kemin Europa NV (a company apparently based in Belgium); andc. Kemin Industries Inc (a company apparently based in the USA).[3]The claims are resisted by the respondents. In a response presented on 14 August 2018 on behalf of all 3 respondents, it was submitted that the correct respondent to this claim is Kemin UK Limited as that was the company that employed the claimant. It was further submitted that Kemin Europa NV and Kemin Industries Inc should be removed as respondents.[4]A closed preliminary hearing took place by telephone on 18th October. At that hearing the claimant agreed that Kemin Europa NV and Kemin Industries Inc were not appropriate parties to the proceedings. The claimant withdrew his claims against those companies.[5]The claimant indicated during the preliminary hearing that he wanted to add Mr Eric Creemers (a director of Kemin UK Ltd) as a second respondent, as the claimant alleges that Mr Creemers was personally responsible for the whistleblowing detriments. It was agreed that Mr Creemers would be served with an ET1.[6]On 5 December a response was presented on behalf of Mr Creemers. In that response it was submitted that Mr Creemers should be removed as a respondent to these proceedings, that the claim against Mr Creemers was out of time, and that Mr Creemers has no liability to the claimant.[7]Following further correspondence between the parties and the Tribunal, the case was subsequently listed for an attended preliminary hearing on 18 January 2019 to consider the following issues:-a. An application by the claimant made on 23 October 2018 to reinstate the claim against Kemin Europa NV and Kemin Industries Inc, and add the following new respondents:- i. Kemin Nutrisurance Europe srl; ii. Mr D Abrate (who the claimant says is employed by Kemin Europa NV); iii. Mrs S Morais (who the claimant says is employed by Kemin Europa NV); iv. Mr D Beltrami (employer unknown); 2601383/2018 10.5 Reserved judgment with reasons – rule 62 March 2017 v. Dr A Yersin (who the claimant says is employed by Kemin Industries Inc); vi. Mr J May (who the claimant says is employed by Kemin Industries Inc); and vii. M Bertuzzo (employer unknown)b. An application by the respondent on 20 November 2018 to set aside the joining of Mr Creemers as a respondent;c. An application made by the respondent on 19 December 2018 for a deposit order; andd. Case management orders – the previous case management orders having been stayed. Proceedings at the preliminary hearing[8]The preliminary hearing was listed in person for 3 hours, starting at 10am. Unfortunately both the respondents’ instructing solicitor and counsel misread the Notice of Hearing and thought that the hearing was due to start at 2pm (the time originally proposed, but subsequently changed).[9]The claimant arrived in good time for a 10 am start, but the respondent did not. The Tribunal staff telephoned the respondent’s solicitor and suggested that the preliminary hearing take place by telephone. The respondent’s solicitor objected to this, and indicated that both she and counsel would immediately leave for the Tribunal, so as to arrive as soon as possible.[10]I spoke to the claimant, in the presence of two members of Tribunal staff. The claimant’s strong preference was for the hearing to go ahead at 10am, as he was concerned in particular about the impact on his health of delaying matters. He said that he would need to eat and that it was unfair on him to have to wait.[11]Having considered the views of both parties, I decided that the interests of justice and the overriding objective required that the hearing should be postponed until such time as the respondent’s representatives arrived. I explained to the claimant that if at any point during the hearing he needed an adjournment, whether to eat or for any other reason, he should let me know and I would grant one.[12]The hearing started at 12.15pm, following the arrival of the respondents’ representatives. Mr Lewis apologised for the confusion over the start time. I asked the claimant whether he felt well enough to proceed with the hearing, and he told me that he did, and that he was happy to go ahead. I asked him to let me know if he needed an adjournment at any time.[13]Mr Lewis indicated that he was instructed to represent both Kemin (UK) Ltd and Mr Eric Creemers at this hearing. He was not instructed at this stage to represent the other parties that the claimant sought to have added as respondents, although did make representations as to why they should not be added. 2601383/2018 10.5 Reserved judgment with reasons – rule 62 March 2017[14]The respondent produced a bundle of documents running to 192 pages. The claimant indicated that he had a copy of the bundle but had not had chance to look at it properly. I asked the claimant twice whether he would like an adjournment to consider the documents, and on both occasions he replied ‘no’. Additional documents were subsequently added to the bundle by consent, at the claimant’s request.[15]At the outset of the preliminary hearing the claimant made an application to amend his claim to include 3 new protected disclosures, namely:-a. a disclosure that the claimant said he made over the telephone on 6 December 2017 to Sophie Morais in which the claimant alleges he discussed an incorrect legal address, unapproved premises, and shipping documents having been declared incorrectly as animal fed additives rather than pre-mixtures - in breach of EU Regulations;b. a further disclosure relating to the same issues that the claimant alleges he made to Sophie Morais by telephone on the 7th December; andc. a third disclosure about the same issues that the claimant says was made on 14 December 2017 during a sales meeting in Italy at which Mr Abrate, Ms Morais and the whole sales team were present.[16]It was agreed that the application to amend would be added to the list of issues set out at paragraph 6 above, and considered at the preliminary hearing.[17]I then heard submissions from both parties. The claimant’s preference was that the respondent should go first, and this was agreed. Mr Lewis had produced a chronology and written skeleton submissions, for which I am grateful. The Law Respondents to a whistleblowing claim
The Law
[18]Section 47B (1) of the Employment Rights Act 1996 (“the ERA”) provides that “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”[19]Section 47B (1A) of the ERA states that:- “A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done –(a) By another worker of W’s employer in the course of that other worker’s employment, or(b) By an agent of W’s employer with the employer’s authority 2601383/2018 10.5 Reserved judgment with reasons – rule 62 March 2017 On the ground that W has made a protected disclosure.”[20]Section 47 (1B) then provides that “Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also being done by the worker’s employer”; and Section 47 (1C) is “For the purposes of subsection (1B) it is immaterial whether the thing is done with the knowledge or approval of the worker’s employer.” Applications to amend[21]Guidance Note 1 of the Presidential Guidance – General Case Management (2018) contains guidance for employment tribunals considering amendments of claims and responses, including on the addition and removal of parties. Paragraph 17 states that: “Asking to add a party is an application to amend the claim. The Tribunal will have to consider the type of amendment sought. The amendment may deal with a clerical error, add factual details to existing allegations, or add new labels to facts already set out in the claim. The amendment may, if allowed, make new factual allegations which change or add to an existing claim. The considerations set out above in relation to amendments generally apply to these applications.[22]Paragraph 4 of the Guidance Note provides that “In deciding whether to grant an application to amend, the Tribunal must carry out a careful balancing exercise of all of the relevant factors, having regard to the interests of justice and the relative hardship that will be caused to the parties by granting or refusing the amendment.”[23]Relevant factors are set out in paragraph 5 of the Guidance Note and include: the nature of the amendment, time limits, and the timing and manner of the application. Addition, substitution and removal of parties[24]Rule 34 of Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“the Rules”) provides as follows:- “The Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings, and may remove any party wrongly included. Deposit Orders[25]Rule 39 of the Rules gives the Tribunal the power to order a party to pay a deposit of up to £1,000 as a condition of continuing to advance an allegation or argument, where, at a preliminary hearing, “the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success.”. Rule 39(2) obliges the Tribunal to make “reasonable enquiries into the paying party’s ability to 2601383/2018 10.5 Reserved judgment with reasons – rule 62 March 2017 pay the deposit and have regard to any such information when decind the amount of the deposit.” Submissions Respondent’s submissions Application to re-instate the claims against Kemin Europa NV and Kemin Industries Inc and to add new respondents[26]Mr Lewis submitted that there was no basis for any claim against either of these entities, as liability under section 47B (1A) of the ERA could only attach to the claimant’s employer or a worker or agent of the claimant’s employer.[27]He argued that if the Order dismissing the proceedings against those entities were revoked, the effect would only be to remove the bar on commencing a further claim raising the same or substantially the same complaint, and would not mean that the claim was automatically restored against either company. Rather they would only be made parties to the litigation again if the Tribunal allowed an application to amend to include them.[28]In relation to the application to add seven new respondents, Mr Lewis submitted that all bar one of the proposed new respondents are individuals and that no particulars had been given of the claims against them other than “detriments and dismissal” or “dismissal”. He suggested that the claimant had taken a ‘scattergun’ approach to identifying potential respondents. The claims against the seven new proposed respondents are, he argued, out of time, and no real explanation has been provided for the timing of the application[29]Mr Lewis pointed out that the claimant had been asked by letter dated 30 November 2018 from the respondents’ solicitors to particularise the allegations against each of the individual proposed respondents, but had declined to do so.[30]He argued that allowing an amendment to the claim to include other companies within the same group as Kemin UK Limited, and employees of those companies, would add significantly to the complexity, length and expense of the proceedings and cause very substantial prejudice to the respondents.[31]Mr Lewis also submitted that the claims against the individuals could have been brought earlier, and that no explanation has been provided for the delay. Should Mr Creemers remain a party to the claim?[32]Mr Lewis told me that Mr Creemers is a director of Kemin (UK) Limited. He submitted that the Order made at the preliminary hearing on 18th October had, rather than joining Mr Creemers as a party, put in place a 2601383/2018 10.5 Reserved judgment with reasons – rule 62 March 2017 process for Mr Creemers to raise issues as to whether he should be joined as a party.[33]Mr Lewis pointed out that rule 29 of the ET Rules allows the Tribunal to set aside or vary a case management order where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made. Mr Creemers had not had the opportunity to make representations at the previous preliminary hearing, as the respondent’s representatives had only received notice of the application to join him as a party during the preliminary hearing itself. Application to amend the claim[34]Mr Lewis referred me to the guidance in Selkent Bus Co. Ltd v Moore [1996] ICR 836 and to the Presidential Guidance on case management. He argued that the starting point is that any claims should have been brought at the outset and that the ET1 is “not something just to set the ball rolling” (Kuznetsov v Royal Bank of Scotland [2017] IRLR 350) He suggested that the nature of the amendments the claimant was seeking to make were significant, and involved making new claims against new respondents, rather than merely rectifying an error in the identification of the correct respondent.[35]Mr Lewis argued that the applicability of time limits remains an important factor in the exercise of discretion. He referred me to the case of Galilee v Commissioner of Police of the Metropolis [ 2018] ICR 634 as authority for the proposition that the doctrine of ‘relation back’ does not apply, so that amendments take effect from the date permission to amend is granted for the purposes of considering limitation.[36]I was also referred to a contrary line of authority (including Gillick v BP Chemicals Ltd [1993] IRLR 437) to the effect that granting an amendment may have the effect of depriving a party of a limitation defence. Deposit order[37]Mr Lewis invited the Tribunal to make a deposit order on the basis that, whether or not the Tribunal allows the amendments to the claim, the dismissal claim has little reasonable prospect of success. The decision to dismiss the claimant was taken prior to the protected disclosures referred to in the Claim Form. He referred me to the case of Tree v South East Coastal Ambulance Service NHS Foundation Trust UKEAT/0043/17/LA in which it was held that a deposit order is a legitimate course to discourage the pursuit of claims identified as having little reasonable prospect of success at an early stage. Claimant’s submissions Application to re-instate the claims against Kemin Europa NV and Kemin Industries Inc and to add new respondents 2601383/2018 10.5 Reserved judgment with reasons – rule 62 March 2017[38]The claimant told the Tribunal that the reason he wished to include Kemin Europa NV and Kemin Industries Inc as respondents to the claim was because his contract of employment stated that HR policy is under the control of Kemin Europra NV. He also argued that Kemin Industries Inc is responsible for the contractual bonus scheme and set the rules of the bonus scheme. The claimant is claiming loss of bonus as part of his Schedule of Loss.[39]The claimant believes that there are distinct contractual obligations that Kemin Europa NV and Kemin Industries Inc have towards him. He said he had only withdrawn the claim against those two companies at the previous preliminary hearing on the basis that he was not employed by either of them. He disputed the contents of the case management summary produced following that preliminary hearing.[40]He argued that he had not had the opportunity to apply at the hearing on 18 October for other respondents to be added because the hearing was ‘suspended’ after the decision to serve an ET1 on Mr Creemers.[41]The claimant also submitted that the Tribunal must consider the question of fairness to the claimant.[42]He argued that all he wanted to amend in the particulars of claim (page 13) was one word – namely he wanted to remove ‘was employed’ and add ‘worked’. He said his application had been made on 23 October, 5 days after the hearing on 18 October, and was originally due to be heard at a preliminary hearing listed for 13 December, which had subsequently been postponed to today.[43]In Mr Beaumont’s view, Mr Creemers had already been added as a respondent in relation to the claim for detriment.[44]Mr Beaumont also argued that Kemin (UK) Limited had never managed his performance, nor had they dismissed him.[45]He urged the Tribunal to reconsiders its decision and allow the amendments. He referred also to Selkent v Moore and argued that the Tribunal has a broad discretion to allow amendments. He submitted that the paramount consideration was the relative hardship to the parties of allowing or refusing an amendment.[46]The claimant submitted that there was no need for an Early Conciliation Certificate to include the new cause of action, and that there was no need for an EC Certificate to include a new cause of action.[47]The claimant referred me to the case of Mist v Derby Community Health Services NHS Trust 2016 (UKEAT/0170/15/MC) in which the EAT held that a mistake in the naming of a prospective respondent does not mean that ACAS has to reject the notification. In the claimant’s submission, there is no requirement to go through the EC procedure to add additional respondents. The decision to allow an amendment falls within the ET’s general case management powers in Rule 29 of the ET Rules of Procedure. 2601383/2018 10.5 Reserved judgment with reasons – rule 62 March 2017[48]The claimant also referred to Drake International Systems Ltd and others v Blue Arrow Ltd (UKEAT/0282/15/DM) as authority for the proposition that no further EC certificate is required if a claimant seeks to add a respondent. In that case four subsidiaries of a parent company were added as respondents to a claim despite not being name on the EC certificate.[49]The claimant submitted that he was employed by Kemin UK Ltd which owned by Kemin Europa NV. He said that HR in Kemin Europa NV is responsible for expenses, and failed to reply to his grievance. In relation to Kemin Industries Inc, the claimant submitted that that company made all the decisions to ‘hire and fire’, set the rules of the bonus scheme and are ‘responsible for’ the covenants in the claimant’s contract.[50]The claimant told me that he worked for Kemin Nutrisurance Europe srl on a ‘day to day’ basis and that this company ‘connects all the parties’.[51]The claimant submitted that Mr Creemers is a director of Kemin UK Limited and should therefore remain as a party to the proceedings.[52]The claimant argued that Mr Abrate should be a party to the proceedings because he wrote the letter of dismissal and made the decision to dismiss. Ms Morais, who the claimant says reports to Mr Abrate, should be a party because she failed to act on the protected disclosures that the claimant says he made on 6th and 7th December.[53]The claimant wishes to add Mr Beltrami as a party in relation to both the dismissal and detriment claims, because he was at the dismissal meeting on 20 March and was also aware of the protected disclosures allegedly made on 6th and 7th December. Dr Yersin should be a party, according to the claimant, because he was tasked by Mr Abrate on 13th March to ‘action’ the shipping.[54]Mr May, the claimant says, is the Vice President of Kemin Nutrisurance Europe srl and employed by Kemin Industries Inc. The claimant alleges that Mr May told the claimant he would look into the allegations. Deposit Order[55]The claimant resisted the application for a deposit order and submitted that there clearly are disputed facts in this case. Conclusions Application to re-instate the claims against Kemin Europa NV and Kemin Industries Inc and to add new respondents
Conclusions
[56]I accept that the application to add new respondents to this claim amounts to an application to amend the claim. I have considered the relevant factors. The amendments which the claimant seeks to make are, in my view, not merely a relabeling of the existing claim, but rather new claims against new respondents. 2601383/2018 10.5 Reserved judgment with reasons – rule 62 March 2017[57]The claims against the new respondents are significantly out of time, and the claimant has provided no explanation as to why they were not brought in time.[58]The claimant voluntarily withdrew his claims against Kemin Europa NV and Kemin Industries Inc at the preliminary hearing on 18 October. There is no evidence to suggest that he was put under undue pressure to do so. The fact that the claimant has subsequently changed his mind is not, in my view, sufficient ground to justify adding those two companies as respondents to this claim.[59]The interests of justice are not, in my view, in favour of adding the additional respondents. 6 of the proposed additional respondents are individuals who appear to be based abroad. The others appear to be foreign registered companies.[60]It is not clear to me precisely what the allegations against any of the proposed additional respondents are. I accept that there is a potential for any of those seven to be liable for any detriments suffered by the claimant under section 47B of the ERA, as it could be argued that they were acting as agents of Kemin (UK). Adding them as respondents however would significantly increase the length, cost and complexity of these proceedings. It would require the service of the Claim Form out of jurisdiction, and could lead to a much longer hearing.[61]The claimant is not deprived of any remedy if they are not added as respondents. He still has a remedy against his employer, Kemin (UK) Limited, and it remains open to him to argue that the proposed additional respondents subjected him to a detriment for which Kemin (UK) Limited is liable pursuant to section 47B of the ERA.[62]For these reasons, none of the companies and individuals named at paragraph 7 of this Judgment will be added as respondents to this claim. Addition of Mr Eric Creemers as a respondent to the claim.[63]Mr Creemers was not present or represented at the preliminary hearing on 18th October at which a decision was taken to serve him with a copy of the ET1. He had not had the opportunity to make representations as to whether he should be joined as a party to the claim.[64]The application to join him as a respondent was made in October 2018, some 7 months after the claimant was dismissed, and 4 months after the claimant presented his claim form. The claim against Mr Creemers is significantly out of time and the claimant has not, in my view, provided a valid explanation for the delay.[65]Whilst I recognise that the claimant is not legally represented in these proceedings, he is clearly an intelligent man who gave thought, at the time he issued his claim, to the question of who should be a respondent. His original claim form contains 3 different respondents, and 3 different Early Conciliation Certificate numbers. It therefore seems to me that the claimant did consider who to join as a party to this claim back in June of this year, and he chose not to add Mr Creemers. 2601383/2018 10.5 Reserved judgment with reasons – rule 62 March 2017[66]Weighing up the factors that I have to consider, I am satisfied that on balance, the interests of justice are in favour of removing Mr Creemers as a party to these proceedings. Doing so would not deny the claimant a potential remedy, as his claim will proceed against Kemin (UK) Limited. Application to amend the claim to include additional protected disclosures[67]In reaching my decision on this issue, I have considered the relevant factors identified at paragraphs 21 – 23 above.[68]Turning first to the nature of the application to amend, the claimant is not seeking to bring new claims, but rather to add additional protected disclosures to his existing whistleblowing claim. He is, in effect, adding factual details to his claim.[69]The application is made at a relatively early stage in the proceedings, and the respondent has had the opportunity to consider and made representations in relation to the application.[70]Allowing the application to amend would not, in my view, significantly lengthen the proceedings or cause undue hardship to the respondent.[71]On balance, therefore, the interests of justice in my view weigh in favour of allowing the amendment to the claim. Deposit Order[72]. In a letter dated 19 December 2018 and sent to the Employment Tribunal the respondent’s representative applied for a deposit order on the ground that the claimant had little reasonable prospect of success on the issues of whether his dismissal was by reason of any protected disclosures. In essence, the respondent’s position is that the decision to dismiss the claimant was taken before any of the protected disclosures referred to in the original claim were made.[73]In light of my decision to allow the claimant’s application to amend the claim to include the additional protected disclosures, it would not in my view be appropriate to issue a deposit order in this case. The new protected disclosures relied upon by the claimant were made some 3 months prior to his dismissal and, in my view, it cannot be said at this stage, that the claimant has little reasonable prospect of establishing that his dismissal was linked to the alleged protected disclosures.[74]Moreover, there are in my view clearly disputed fact which the Tribunal will need to hear evidence on in order to resolve.[75]In the circumstances therefore, I make no deposit order. __________________________________________ 2601383/2018 10.5 Reserved judgment with reasons – rule 62 March 2017 Employment Judge Ayre _________________________________________ Date 4 March 2019 RESERVED JUDGMENT & REASONS SENT TO THE PARTIES ON ........................................................................................................... ........................................................................................................... FOR EMPLOYMENT TRIBUNALS Case No. 2601383/2018 1 of 33 EMPLOYMENT TRIBUNALS Claimant: Mr D Beaumont Respondent: Kemin (U.K.) Limited FINAL HEARING Heard at: Midlands (East) (by CVP) On: 17 to 21 January 2022 Before: Employment Judge Camp Members: Miss R Wills Mr G Austin Appearances For the Claimant: in person For the Respondent: Mr G Probert, counsel
Issues
[76]Turning to whether the information tended to show that any matter falling within any one of the categories in ERA section 43B(1) hahadd been, was being or was likely to be deliberately concealed:76.1 76.1 the Claimant during the hearing did at one or two points talk about a “cover-up””,, something which we will specifically deal with later in these RReasonseasons; Case No. 2601383/2018 21 of 3376.2 76.2 if he at any relevant stage thought that there actually was a cover-up (and we do not think he did)did),, iitt was certainly not anything he articulated, and none of his alleged protected disclosures had anything in them, even the slightest hint, to that effect;76.3 76.3 iinn so far as the Claimant is actually alleging he believed that any information he disclosed tended to show such a thing, we do not accept that alallegationlegation; nor was any such belief a reasonable one. 7. 7. In assessing the reasonableness of the Claimant’s belief that there was a breach of relevant EU rregulationsegulations and therefore of the UK criminal law, we do bear in mind the fact that he is not a lawyer; but aalsolso the fact that, as already mentioned, he professes to detailed expert knowledge of the rregulationsegulations to which he refers, gleaned from his many years working in the animal feedstufffeedstuffss industry.industry.[78]The first thing referred to both by the Claimant and by the Respondent is Article 2 of ReRegulationgulation (EC) No. 1831/2003, which is the “DDefinitionsefinitions” section. Articles 2(a) and (e) state: (a) (a) ‘feed additives’ means substances, micro-organisms or preparations, other than feed material and premixtures … (e) (e) ‘premixtures’ means mixtures of feed additives …[79]In other words, if one adds two feed additives together, one gets a premixture. Feed additives and premixtures are therefore not fundamentally different things. The Claimant has never been able to explain to us which part of which of the EU rregulationsegulations hehe refersrefers toto wwasas allegedly breached by the Respondent describing on shipping documents or on an invoice a premixture as a feed additadditive.ive. The Respondent has consistently (and plausibly) maintained that on shipping documentation there is nothing wrong with describing a premixture as a feed additive, as in that context what is important is what, generically, the goods are; and that premixpremixtures,tures, being made up of two or more feed additives, can generically be described as feed additives.[80]What we are concerned with here is whether the Claimant had a reasonable belief that there was a breach of particular EU rregulationsegulations, and consequently of British regulationregulationss that criminalise certain breaches of EU regulations, and that information he disclosed tended to show this. We repeat that it has never been his case – before part-way through the hearing, at least – that at the time he made his disclosures he believed the information he disclosed tended to show other breaches of legal obligations. The fact that he has been unable during the course of these proceedings, including at ththisis final hearing, to point to an EU rregulationegulation he now thinks was breached would not necessarily be determinative. However, what is more damaging to his case is the fact that he appears to be unable to explain what rregulation(s)egulation(s) he allegedly thought at the time had been breached; or, to be mormoree precise,precise, whatwhat rregulation(s)egulation(s) he thought the information he allegedly disclosedisclosedd tended to show had been breached.[81]In relation to this additiveadditivess/premixtures/premixtures issue, the one and only rregulationegulation he has pointed us to that might conceivably be relevant is that jjustust quotedquoted fromfrom.. Case No. 2601383/2018 22 of 33 Notwithstanding Notwithstanding him not being a lawyer, if he really thought that the ddefinitionsefinitions section of 1831/2003 made what the Respondent did unlawful, thereby meaning the Respondent had committed criminal offences in British law, it was not a reasoreasonablenable belief. More than that, even to a lay person, albeit one who professes expertise in this area, the proposition that breaches of the law are to be derived from and solely from the definitions section of thethesese rregulationsegulations is so manifestly absurd that we do not accept the Claimant can genuinely have believed that at any relevant time.[82]On the address issue (“an incorrect legal address” in the list of issues)issues),, tthehe Claimant referred us to specific articlearticless from EC Regulation 183/2005: Article 11, which provides: “Feed business operators shall not operate without:(a) registration as provided for in Article 9; or(b) approval, when required in accordance with Article 10””;; Article 16, which deals with amendments to registration or approval of an establishment; Article 19, which provides for the competent authority to record on a national list or lists the establishment it has registered in accordance with Article 9; Article 9, which requires feed businebusinessss operators to provide details of their establishments and provides for the maintenance of a register or registers of establishments.[83]Beyond referring to those aarticlesrticles, the Claimant was unable to explain to us how putting the wrong address on an invoice or on shipping documents might be a breach of the regulation. In so far as we can understand what the Claimant is now allegalleginging – and in fairness to him, this is not new, in that it is reflected in the claim form – it is: first, feed business operators have to provide details of and register their establishments; secondly, they therefore have to give accurate details of a registered establishment on documentdocumentss connectedconnected withwith consignmentconsignmentss of animal feed products. The difficulty we have with this is that the second parpartt of it does not logically, or in any other way, follow from the first part of it. The articles of the regulregulationation the Claimant has referred us to are not concerned with what goes on shipping documents or invoices; they are concerned with the registration of establishments. It is conceivable ttherehere are other articles of other regulations requiring shipments of animal feed products to be accompanied by documentation accurately stating that thetheyy originated from an establishment registered pursuant to 183/2005 and giving ththatat establestabliishment’sshment’s correct registered address, but if they exist the claimant hhasas been unable to point to them. They are not any of the articles of 183/2005 he has referred us to; and he cannot have had them in mind in 2017 and 2018 if he still cannot identify them.[84]If the Claimant believed at the time that particular parts of 183/2005 wwereere being breached by “an incorrect legal address” it was an unreasonable belief. But it is a big ‘if’‘if’;; and we don’t accept the Claimant did believe this in December 2017 or February 2018. The factor we keep coming back to in relation to this is that the Claimant is alleging he believed, at all relevant timetimess, that Kemin was making (using his own words from the particulars of claim) “fraudulent” declarations, resulting in breaches of EU regulations and the commission of criminal offences, and yet he never wrote anything to that effect, but instead chose to write things like the email of 20 February 2018 that we considered above. Whatever he now tthinks,hinks, and whatever he had persuaded himself of by the time he came to make his claim, hhee did not believe any such thing at the time of the alleged protected disclosures, because if he had done so what he wrote to his employer would have been very differendifferent.t. Case No. 2601383/2018 23 of 33[85]AllegedAlleged pprotectedrotected disclosure e is an email the Claimant sent to Mr Abrate and others at 4.52.52 pm on 23 February 2018.[86]Similarly to the email of 20 February 2018 relevant to disclosure d, the first thing we note about ththisis emailemail ofof thethe 2323rdrd is that, from its first sentence, its focus is on the customer’s concernconcernss arising under the customer’s certification scheme, which, moving through the email, appear to boil down to concerns relating to the GMP+ certification scheme. IInn the body of the email ttherehere is no hint or suggestion of the Claimant having the concerns about breachbreacheses of EU Regulations and of British criminal law that he alleges he had. As is noted in paragraph 41 of rrespondent’sespondent’s ccounsel’sounsel’s skeleton argument, to which we refer and with which we agree, most of the email consists of the Claimant asking questions which he does not suggest he knows the answers to. He comes nowhere near suggesting he thinks the answers are to the effect that there have been the breaches of the law that he has identified.[87]In the first part of the email, the Claimant discusses GMP+ certificaticertificationon issues. These are, we remind ourselves, issues which the Claimant has consistently said, particularparticularlyly during this hearing, were not the subject matter of his alleged protected disclosures. On those issues he asks non-rhetorical questions and makes pointpointss seemingly inconsistent with the case put forward in these proceedings such as, “WWithith regard to the invoice I do not see anything wrong but of course someone should check it?”it?”.. 8. 8. Later in the email, uundernder the heading “Product specifications”, the Claimant does not suggest that there are regulatory issues; what he seems to be doing is asking whether additional information can be provided in order to keep the customer happy.[89]Under the heading “Veronella Delivery Note Vital Petfood Groups”, hahavingving set out information about what “a typical Veronella ddeliveryelivery nnoteote” looks like, he asks ““…… it would be useful to check if the type of product needs to be declared eg do we need to say premixture?premixture?”.”. We are in danger of belabouring the point, but he would not be asking this question in this way if he believed that Kemin definitely did need to “say premixture” in order to avoid criminal liabilities, which is what he is alleging he believed. IInn thethe email,email, iimmediatelymmediately after that question, the ClClaimantaimant poses three more. Suffice it to say: these questions do not relate to the alleged protected disclosures the Claimant is relying on; in any event, the Claimant is asking questionquestionss in a way that suggests he does not know the answeranswerss toto themthem..[90]The only hint in the email that, as alleged, the Claimant thinks there are serious breaches of the lalaww, is the email’s final sentence: “I think my questions highlight that we have some potential legal, regulatory, quality, certification selling and marketing iissuesssues to address”. However, he does not say what ththoseose issues might be, he refers to them as “potential … issues”, and it seems to us that if he thought he was disclosing information which tended to show the existence of the serious breaches of law he alleallegesges he did, he would have said so in ttermserms, and done so way back in December 2017, because he is not the kind of person who would neglect their duty to tell their employer things like that. Case No. 2601383/2018 24 of 33[91]In conclusion in relation to alleged protected disclosures d and e:91.1 91.1 the Claimant did not genuinely believe he was disclosing information that tended to show the things he alleges he did;91.2 91.2 if he did, any such belief was not reasonable;91.3 91.3 his reasons for writing ththee emails of 20 and 23 February 2018 referred to were entirely reasonable concerns about his and the Respondent’s position vis--àà--vis a valuable customer;91.4 91.4 ttherehere is no public interest involved in his disclosures, nor are we satisfied that he thought he was mamakingking his disclosures in the public interest;91.5 91.5 iiff he thought he was, it was not a reasonable belief.[92]InIn summarysummary::92.1 92.1 none of the alleged qualifying and protected disclosures relied on was a qualifying or protected disclosure;92.2 92.2 aallll of the Claimant’s complaints therefore necessarily fail. Unfair Unfair dismissaldismissal[93]We shall now consider the Claimant’s complaintcomplaintss as if we had concluded that the Claimant had made qualifying and protected disclosures. This requires a certain amount of mental gymnastics, but what we are doing is proceeding on the basis of the following assumptions: that all of the disclosures that were made had similar contentcontentss; that thetheirir contentcontentss were,were, essentially,essentially, thethe cocontentsntents of the emails of 20 and 23 February 2018 which we have just been considering (and this is a reasonable assumption to make, given that the Claimant’s case on paper is that he made the same disclosures five times)times);; that we are wrong about them not beibeingng protected disclosures. With those assumptions in mind, we are asking ourselves: was the reason the Claimant was subjected to the treatment he complains about the fact that he made those disclosures?[94]We start with the complaint of unfair dismissal under ERA section 103A.[95]Although the legal burden of proof is on the Claimant to show that the reason or principal reason for dismissal was that he made a protected disclosure, it is iinstructivenstructive to look at the reasons put forward by the Respondent for dismissal and to examine whewhetherther the evidence supports the Claimant’s case or the Respondent’s case. We note that the only person who knows why the Claimant was dismissed is Mr Abrate. The Claimant does not know the reason and can only speculate as to what the reason might be, on the basis of the evidence, just as we can.[96]We refer to the interinternnalal Kemin emails of late December 2017 / early January 2018 discussing the Claimant’s future, in particular that from Mr Bertuzzo of 22 December 2017 recording what Mr Abrate had told him – see paragraph 31 above. TheTheyy were sent at a time whwhenen no one within Kemin could have dreamed that some kind of Case No. 2601383/2018 25 of 33 Tribunal Tribunal claim would be in the offing and that those internal emails might come to light as part of a Tribunal disclosure exercise. TheTherere is no good reason not to take them at face value. For us to take them otherwise, we would have to assume either that Mr Abrate anticipated a future TTribunalribunal claim and that the Claimant would somehow ffindind out about his conversation with Mr Bertuzzo, and that Mr Abrate therefore lied to Mr Bertuzzo; or that Mr Abrate and Mr Bertuzzo got together and between them anticipated the TTribunalribunal claim and thought that they should lay a false paper trail; or some other similarly unlikely scenario. And nothing like that has been alleged by the Claimant anyway.[97]WWhathat the Claimant’s case is in relation to ththeseese emailemailss is something of a mystery to us. Insofar as we cacann understand what it is, it seems to be that tthhee email from Mr Bertuzzo merely mentions the possibility of dismissing the Claimant, but that the actual decision to dismiss him was taken later. As we shall explain in a moment, we do not accept that interpretation of ththisis email of 22 December 2017, but even if we did, ththisis would not help the Claimant overcome the fact that the email not only suggests that Mr Abrate wanted to dismiss him before either of protected disclosures d and e were made, but thathatt his apparent reasons for doing so had nothing to do with the disclosures the Claimant had allegedly made and everything to do with the concerns Mr Abrate alleges he had about the Claimant’s performance.[98]We note that the email of 22 December 2017 and the email conversation that follows it are between people who do not have English as their first language and are using English as a lingua franca. It is obvious to us from the whole conversation, even ignoring the evidence which Mr Abrate gave to us about it, that this was not some idle query about how Mr Abrate might go about dismissing the Claimant at some stage in the future if he wanted to do that. Instead, it was a request for information as to how to dismiss the Claimant in circumstances where a decisiodecisionn had been made that he should be dismissed. The issue being discussed in the emails was as to the timing of the dismissal; and the focus of discussions over the timing was the fact that the Claimant acquired 2 years’ service and the right to bring an ‘ordordinaryinary’ unfair dismissal claim in April 2018. In other words, this email exchange is entirely consistent with the Respondent’s case, which is that the Claimant was dismissed because, rightly or wrongly, Mr Abrate had performance concerns; and that he was didismissedsmissed when he was dismissed because the Respondent wanted to avoid him getting 2 years’ service. 9. 9. There is a related, overwhelming reason why the reason for dismissal was not the making of disclosures (protected disclosures or nnot):ot): at the time Mr Abrate decided that the Claimant should be dismissed, he was completely unaware of any of the Claimant’s disclosures, so they could not have been the reason for his decision; he was first aware of them on 20 February 2018. See paragraph 59.4 above.[100]So far as concerns whether performance issues were what was in the Respondent’s and Mr Abrate’s mind when deciding to dismiss the Claimant, we have alreaalreadydy noted that that is what Mr Abrate told Mr Bertuzzo at the time and that we can think of no plausible reason why Mr Abrate would not have told the truth to Mr Bertuzzo at the time.[101]What the Claimant seems to be saying about this is two things. Case No. 2601383/2018 26 of 33[102]FFirst,irst, he says that his sales were better than those of his peers and that therefore there were no grounds to be concerned about his sales performance. In relation to this, the Claimant is almost perversely missing the point. The point is that he had a salesaless target, which he had not complained about or objected to, and which he missed by a very substantial margin; in circumstances where, according to Mr Abrate’s uncontradicted evidence, the Claimant’s peers did not miss their sales targets.[103]The second thing the Claimant seems to be saying about this is that if Mr Abrate had been so concerned about the Claimant’s sales performance that he was contemplating dismissal of the Claimant because of it, Mr Abrate should have flagged it up to the Claimant and given hhimim a warning, or put him on a performance improvement plan, or something like that. Again, this rather misses the point. We are not concerned with the fairness of what Mr Abrate did, but with whether he genuinely did have concerns about the Claimant’s perfperformanceormance which caused him to decide to dismiss the Claimant. It would be fair to say that the contemporaneous documentation, such as it is, would not have communicatecommunicatedd to the Claimant that Mr Abrate had that level of concern about the Claimant’s performance, but there are a number of emails and other documents, highlighted in the Respondent’s evidence, which demonstrate that the Respondent did have concerns about the Claimant not meeting his target, concerns which were expressed to the Claimant to some extenextentt. AAndnd there is nothing in that documentation to suggest that the Claimant missing his target was not of concern to the Respondent, let alone that the Respondent sharshareedd the view the Claimant expressed during this hearing, namely that bearing in mind the loloww base from which Kemin’s sales performance in the UK started in 2017, the Claimant had done very well in terms of his sales performance on an objective measure, and that his sales targets were so ununrealisticrealistic that they could effectively be ignored when assassessingessing hishis performance.performance.[104]It is obvious to us from the contemporaneous documentation – see in particular paragraphs 21 and 22 above – that, rightly or wrongly, Mr Abrate was genuinely concerned that the Claimant should hhitit his target and it would logically follow from this that he would be concerned when the Claimant failed to hit his target.[105]We accept that when the Claimant was told he was being dismissed, it would have come as a ‘bolt from the blue’ from his point of viview,ew, but the evidence is entirely consistent with the reason for dismissal being performance. More importantly, bearing in mind that the burden of proof in terms of the reason for dismissal is on the Claimant, there is literally nothing in the evidence even hinting that the Claimant making his disclosuredisclosuress, or any other ulterior motive, was any part of the reason for his dismissal.[106]The Claimant seems to place considerable weight on the contents of his 2017 annual performance review, which was prepared in JanuJanuaryary 2018. The main thing we note about that is that at the time it was prepared, Mr Abrate had already decided that the Claimant should be dismissed for poor performance. In the circumstances, we can understand why Mr Abrate might not have paid particular heed to what he said in that document. AAlthoughlthough we might have expected Mr Abrate to be rather more robust in his criticisms of the Claimant’s performance than he in fact was, it is not as if the Claimant is praised in it. In short, ththee documentdocument doesdoes notnot asassistsist thethe Claimant’sClaimant’s case.case. Case No. 2601383/2018 27 of 33[107]In looking at whether the reason for dismissal was, or might have been, the Claimant making disclosures, one thing we have looked at is the inherent probability of someone in Mr Abrate’s position wanting to do the Claimant down because of the Claimant makimakingng these particular disclosures at the particular times he allegedly made them.[108]The fact that somebody has made a protected disclosure does not mean that the employer has a plausible motive for dismissing them or subjecting them to a detriment ooff any kind at all. Where a whistleblower is persecuted, there is a reason behind it; and the reason is not that the employer has undertaken a detailed legal analysis and decided that the test for making protected disclosures in the Employment Rights Act 1996 has beebeenn satisfied. The reasons are usually that: the whistleblower has been making a nuisance of themselves and they are being persecuted to shut them up; and/or that the employer is worried about them making their disclosures to others and wishes to undermine ttheirheir credibility, or something like that – for example, a middle manager who is concerned that their subordinate will go over their head with their concerns and get them into trouble, or the employer as a whole is worried that a whistleblowing employee wilwilll take their concerns to a client or to a regulator, embarrassing them, doing them commercial damage, and/or getting them into trouble. Entirely absent from the Claimant’s case is a sensible answer to the question: why would Mr Abrate be so concerned about the Claimant making these disclosures that he decided the Claimant shshouldould be dismissed for making them?[109]We asked the Claimant about this a number of times during the hearing. At one point, not directly in answer to our questions about this, he spoke of a “cover-up”. We have no idea what the Claimant is referring to here. Who is said to have been covering up what? The Claimant’s disclosures, such as they wewere,re, consistedconsisted ofof repeatrepeatinging concerns which had been raised by a particular client. They were not the Claimant’s concerns; they were the client’s concerns. There was no possibility of Kemin covering them up because they were not in the Claimant’s or Kemin’s hands. Moreover, the documentary evidence before us shows that thetheyy were escalated to a senior levelevell and were ultimately resolved to the client’s satisfaction. And the uncontradicted evidence of Dr Yersin is that although the Respondent changed its practice in relation to ththee particular client who had raised the concerns, in order to keep ththeemm happy,happy, nothingnothing elseelse wwasas changed, because nothing needed to be, from a regulatory point of view.[110]The other thing the Claimant said in relation to this issue of why Mr Abrate might want to persecute him for making these disclosures was something along these lines: Mr Abrate had an ulterior motive and was looking for a scapegoat as he would be responsible for “misinformation” to customers. That allegation leads us to ask: a scascapegoatpegoat for what? The Claimant presumably cannot – at least not consistently with his whistleblowing claims – mean that he was being made a scapegoat for financial losses sustained as a result of the client being lost because of these issues (the potential loss of this client being something very much in the Claimant’s mind when he sent his email of 20 February 2018 – see above). If that was the reason for dismissal, then the reason for dismissal was not the making of protected disclosures.[111]InIn accordanceaccordance witwithh the case that the Claimant is putting forward on paper, he can only mean that he was being made a scapegoat for the Company’s alleged regulatory Case No. 2601383/2018 28 of 33 breaches. breaches. That allegation would make no sense at all. Neither the Claimant nor Mr Abrate was responsible for what was written on invoices or in shipping documents and the like. Neither of them was on the regulatory side of the business. Both of them were concerned with sales. Moreover, there was never any sugsuggestiongestion from anyone that someone was going to get into trouble with regulatory authorities, or with senior management. No one had made any threat to go to the authorities; the customer was not threatening to go to the authorities, and neither was the ClaimClaimantant. WWhathat comes through the contemporaneous paperwork very strongly is that the only concern was to keep the customer happy.[112]In conclusion, the claimant making the disclosures he made, whether they were protected disclosures or not, had nothing to do with his dismissal. His unfair dismissal complaint therefore fails. Right Right toto bebe accompaniedaccompanied[113]The next issue relates to the right to be accompanied. It is, in short, did the Claimant have that right?[114]That question can be answered very simply: no, he did not; that right only arises in relation to grievances and disciplinaries; this was not a disciplinary, it was a meeting to dismiss the Claimant for allegedly poor performance. There was and is no suggessuggestiontion that the Claimant was guilty of misconduct, or anything of that kind. The Claimant apparently believes that every dismissal where the employee is being to some extent criticised is necessarily a disciplinary in accordance with the Employment Relations Act 1999. HHee is simply wrong about ththatat.[115]In any event, on our reading of it, there is no claim made in the Claim FFormorm (including the particulars of claim) for breach of the right to be accompanied and therefore even if the Respondent had breached that rigright,ht, no such claim would be before the Tribunal. Whistleblowing Whistleblowing ddetrimentetriment[116]We now turn to the alleged detriments. We are examining these complaints in the same way that we looked at the unfair dismissal complaint, as if we have found that the Claimant’s alleged disclosures, such as they were, were qualifying and protected disclosures.[117]In relation to each and every complaint of detriment for making protected disclosures, the same point arises (and we shan’t mention it each time)time):: therethere isis nono basbasisis whatsoever in the evidence for thinking that there was or might be a causacausall connection between the disclosures and the alleged detriments. We asked the Claimant about this a number of times during the hearing. The Claimant appeared not to understand the question. It seemed to us that the Claimant thought that if he proved that he had made protected disclosures and if something which was not to his liking happened afterwardafterwardss, his claim for whistleblowing detriment was complete. If that is indeed what he tthought,hought, he was mistaken. As we explained when discussing the law earlier in these RReasons,easons, it is incumbent on a cclaimantlaimant making a detriment claim to put forward enough evidence to establish a prima facie case on causation; Case No. 2601383/2018 29 of 33 and and this evidential burden on the claimant exists notwithstanding the fact that the legal burden is on the respondent in accordance with ERA section 48(2).[118]A related issue is the Claimant’s inability to explain to us, in relation to all or most of the detriments, who – which individual or individuals – he was accusing of having done or deliberately omitted to do something on the grounds that he made a protected disclosure. We first became concerned about this at the end of Miss Dewil’s cross-examination, when the Claimant had not put to her any allegation that she had acted as she had because of the Claimant’s’s disclosures. The Employment Judge asked the Claimant to confirm that he was not making any such allegation against her and the Claimant did so. At ththee time, the Claimant said all such allegations were being made against Mr Creemers.[119]However, when Mr Creemers was being cross-examined,examined, the Claimant did not put such a case to him either. TThehe Employment Judge then had a very similar conversation with the Claimant to the conversation had when Miss Dewil was finishing her evidence about what his case was. The Claimant initially suggested, before the implications of doing so were explained to him, that he was not making allegations against Mr Creemers eieither.ther. Only when it was explained to him that if this was so, it was difficult to see the basis of any detriment claim at all that the Claimant changed his tune and put his case to Mr Creemers, to some extent and in a rather half-hearted way.[120]WeWe werewere leftleft aatt the end of the hearing unsure as to whether the Claimant really was alleging that anyone – other than Mr Abrate, in relation to dismissal – had in fact acted against him because he made protected disclosures and, if he was, as to who had allegedly done so.[121]Amongst the many reasons why it was important to establish what the Claimant’s case was in this respect, we wanted to investigate whether the individual or individuals who were said to have subjected the Claimant to detrimentdetrimentss becaubecausese of his disclosures had any knowledge of the disclosures. Given the Claimant’s inability to provide us with a remotely clear case in this respect, we are not satisfied that anyone who was responsible for the things the Claimant alleges were detriments he was subjected to did hahaveve such knowledge. For that reason alone, the detriment claim would fail even if it faced no other problems.[122]A further general point that can be made in relation to each of these alleged detriments is similar to the point made earliearlierer about the inherent unlikelihood of Mr Abrate wanting to do the Claimant down because of the Claimant’s alleged protected disclosures. We repeat those points in relation to the detrimentdetrimentss; but in relation to the detriments there is an additional related point, which is: even if someone at the Respondent or at an associated company wanted to do the Claimant down because he made protected disclosures, why on earth would they choose to do this by doing the things that he alleges were detriments?[123]Turning to the individual detriments, ddetrimentetriment a is an allegation that the Respondent delayed payment of the Claimant’s bonus payment from February to March 2018. The Respondent’s case, which we accept because it is entirely supported by the contemporaneocontemporaneousus documentation (which documentation does not support the Case No. 2601383/2018 30 of 33 Claimant’s Claimant’s casecase toto anyany extent)extent),, is that the bonus was in fact paid in two tranches. The first tranche was paid on time, in December 2017, and the second tranche was paid in March 2018 once the figufiguresres had been finalised and once payment – not just to the Claimant but to others too – had been authorised internally, something that happened around 19 March 2018. Emails passing between Mr Bertuzzo and others of 23 March 2018 show that there was a slight confusion between 19 and 23 March as to whether payment had been authorised, which caused a few days’ deldelaay.y. 23 March 2018 was a Friday and the Claimant was paid early the following week. The ClaimaClaimant’snt’s case on paper was that he should have been paid in February. However, during his cross-examination he suggested that he had heard that some UK colleagues had been paid on 20 March 2018. (We should say that he produced no evidence beyond his say-so thathatt some UK colleagues were paid on 20 MaMarrch).ch). His case therefore appears to be that the Respondent delayed paying his bonus by less than a week. If we were satisfied that he had received his bonus five or six days after UK colleagues, and we are not, we thithinknk that in the particular circumstances, such a short delay would be de minimis and that if he genuinely considered that short delay to be to his detriment, he would not have dodonene so reasonably and there would therefore be no detriment in law.[124]Detriment b consists of three subsidiary allegations. The first is an allegation that the Claimant had not received a reply from Mr Creemers to the email the Claimant sent on 23 March 2018 for over a month. The second subsidiary allegation is that Mr May, who was tasked with looking into the Claimant’s allegations that eventually formed the subject matter of these proceedings, did not get back to him. The third is that he was not permitted to appeal.[125]Taking each of those allegations in turn:125.1 125.1 The Claimant’s email of 23 March 2018 was replied to. Mr Bertuzzo replied on 6 April 2018. The Claimant may not have liked what Mr Bertuzzo wrote, but it was a response and a reasonably quick one. The fact that it did not come from Mr Creemers is not a legitimate source of complaint. WWee do not accept that the Claimant was subjected to any detriment in this respect.125.2 125.2 The allegation that Mr May did not reply to the Claimant turned out to be based on tthehe Claimant misremembering the contents of the email that Mr May had sent him on 27 April 2018. The relevant part of Mr May’s email is: “The allegation that you raised in your letter will be looked into and evaluated based on the background of the situatiosituation.n.”” That very carefully worded phrase gives no express or implied promise that Mr May will revert to the Claimant. The Claimant could have no legitimate expectation that Mr May would get back to him; he had no right to have Mr May get back to him; and in all the circumstances we would not have expected Mr May to have got back to him. Given the lack of any legitimate expectation of a response, we do not accept that this was a detriment as a matter of law.125.3 125.3 So far as concerns the denial of a right of appeal, the Claimant had no such right; the Respondent had evidently decided when it dismissed him that it would do so summarily without offering him that right; an HR decision was evidently made not to offer him that right; and, as with the reply or lack of replreplyy fromfrom MrMr Case No. 2601383/2018 31 of 33 May, May, the Claimant had no legitimate expectation that he would be offered an appeal; and in the absence of a legitimate expectation we do not accept that he was subjected to a detriment.[126]Detriment c is an allegation that the Claimant was deliberately not paid correct pension payments in April 2018. This allegation too fails on the facts. In her evidence, Miss Dewil carefully took us through the documents and the figures, proving to our satisfaction that the Claimant was paid all that he was entitled to be paid. In summary, the Claimant was entitled to be paid 6.66 percent pension contributions on his base salary, including on his pay in lieu of notice. A calculation has been done looking at the total the Claimant was paid for his entire employment. That calculation shows that he was in fact overpaid pension. The Claimant aappearedppeared unable to understand that the Respondent’s calculation had in fact been done on the basis of his pay for the entire period of his employment; the Claimant appeared fixated on what he had been paid during 2018 and was unable to get over his belief tthathat he had been underpaid in 2018. And eevenven if we were only looking at 2018, he would have been overpaid. But in any event, as we have just explained, and as we attempted a number of times to explain to him, the calculation that has been done is over the eentirentire period of his employment and it proves he was paid very slightly more than 6.66 percent of his total base ssalary,alary, including pay in lieu of notice.[127]Detriment d relates to reimbursement of expenses incurred in the course of employment. It appears that the Claimant has not been, or at least may not have been, paid everything. There is clear contemporaneous correspondence about this. By the end of it, he was corresponding with the Respondent’s lawyers. Essentially, things seemed to have broken down because he would not accept a proposal put forward that the amount by which he had been overpaid in pension should be deducted from the amount of expenses claimed and only the balance paid to him. Clearly, whawhatt the Respondent ought to have done was to pay him the amount it thought it owed him, leaving him to make a claim for any more he thought he was entitled to. However, it is regrettably commonplace for employers not to take that kind of pragmatic approach. And aanyny suggestion that this large multinational group of companies would short-change the Claimant to the tune of less than £1,000 because of his disclosures, such as they were, is so very unlikely as to be almost ridiculous.[128]Allegation e is an allegation that the Respondent failed to put the Claimant through a full disciplinary process prior to dismissal because he had made protected disclosures. The Respondent failed to put the Claimant through a full disciplinary process because the RespondenRespondentt did not discipline the Claimant; it dismissed him for performance concerns. There is nothing odd or suspicious about the Respondent choosing not to follow a procedure anything like that in the ACAS Code in relation to someone with less than 2 years’ servserviceice about whom there were genuine performance concerns (whether it was reasonable to have such concerns or not)not).. It is not good industrial relations practice for an employer to act like this, but it is very far from unusual, and there is nothing unlawful aaboutbout itit..[129]The claimant’s complaints of detriment for making protected disclosures therefore all fail for a number of reasons, including:129.1 129.1 there were no protected disclosures; Case No. 2601383/2018 32 of 33129.2 129.2 ttherehere was no link between the claimant’s [non[non-protected]protected] disclosures and the alleged detriments;129.3 129.3 nnoo one who was responsible for the things the Claimant is alleging were detriments was aware of his disclosures at the relevant timetimess;129.4 129.4 iinn a number of instances, there was no detriment. Breach Breach ofof contractcontract[130]The Claimant’s final complaint is one of breach of contract. The complaint stems from an allegation that there was a contractual disciplinary procedure which the Respondent was obliged to follow. The entire claim is based on the words “The disciplinary rulruleses applicable to your employment are set out in our Disciplinary Rules and Procedures Document ……”” in the Claimant’s contract of employment.[131]The first point to be made in relation to this claim is one we have already made a number of times: the Claimant wawass not disciplined and the Respondent never had any intention of disciplining him and therefore even if there had been a contractual disciplinary procedure it would not have applied.[132]The second point is that the uncontradicted evidence we have from the Respondent is that there were in fact no particular written disciplinary rules and procedures in existence at any relevant time that were applicable to the Claimant’s employment and that the reference to a Disciplinary Rules and Procedures Document in his contract was a mistake.[133]Thirdly, the fact that a contract of employment refers to policies and procedures does not make those policies and procedures terms of that contract of employment. The great majority of employment policies and procedures declare themselves to be non-contractual.contractual.[134]Fourthly, the contract itself has provisions governing termination. They are the usual provisions to the effect that the contract can be terminated on notnoticeice and/orand/or witwithh pay in lieu of notice. For the Respondent not to be entitled to do that and to be contractually obliged to go through a procedure of some kind before giving notice or paypayinging in lieu (which is what the Claimant has to be alleging as part of this breach of contract claim)),, we would have to read into the ccontractontract of employment something to the effect that not only was there a disciplinary procedure to be followed, but that that disciplinary procedure – which no one, including the Claimant, claims to have seen – was written in such a way that it shshouldould bebe rereadad as overriding the express contractual terms for termination of employment.[135]The breach of contract claim therefore fails too. Case No. 2601383/2018 33 of 33