Mr D Hopkins v The Lodge Trust CIO: 2601634/2023
REASONS
[1]The Claimant presented his claim to the Tribunal on 20 July 2023. He had informed ACAS of his claim on 11 May 2023, and a certificate had been issued by ACAS under the early conciliation procedure on 22 June 2023.[2]Mr Hopkins was employed by the Respondent as a WES Woodwork Team Leader from 7 December 2015 until 17 February 2023 when the Respondent dismissed him for gross misconduct.[3]The Claimant claimed:(1) Unfair dismissal under section 94 of the Employment Rights Act 1996 (ERA);(2) Notice pay;(3) Unfair dismissal under section 103(a) ERA; and(4) Whistleblowing detriment under section 47(b) ERA.[4]The matter came before my colleague, Employment Judge Adkinson on 2 December 2024 at which hearing, he was allowed to amend his claim to add the claim of automatic unfair dismissal under section 103(a) ERA.[5]Employment Judge Adkinson set out in the orders, the issues the Tribunal would have to decide. They were: Unfair dismissal[6]What was the reason or principal reason for the dismissal and was it that he made a protected disclosure?[7]If the principal reason for the dismissal was that he had made a protected disclosure it would be automatically unfair.[8]Otherwise, what was the reason or principal reason for the dismissal? The Respondent said the reason was conduct. The Tribunal will need to decide whether that was the reason or principle for the dismissal.[9]If the reason was misconduct, the Tribunal will have to decide whether the Respondent acted reasonably in all the circumstances in treating that as sufficient reason to dismiss the Claimant. In particular:(1) Were there reasonable grounds for the belief?(2) At the time the belief was formed, had they carried out a reasonable investigation?(3) Had the Respondent acted in a procedurally fair manner? and(4) Was dismissal within the range of reasonable responses? Protected Disclosure[10]The disclosure relied upon was that at or around 4:00pm on Friday 13 January 2023 did the Claimant make a disclosure that operators were exposed to hazardous dust to Mr Josiah Knight (Mr Knight)?[11]We will have to decide whether he disclosed information.[12]Did he believe the disclosure of the information was made in the public interest and was that belief reasonable?[13]Did he believe it tended to show that:(1) A criminal offence had been, was being or was likely to be committed;(2) A person had failed, was failing or was likely to fail to comply with any legal obligation namely, health and safety at work;(3) The health and safety of any individual was being or was likely to be endangered; and(4) Information tending to show any of these things had been, was being or was likely to be concealed.[14]Was that belief reasonable?[15]If the Claimant made a qualifying disclosure, it was a protected disclosure because it was made to the Claimants’ employer. Detriment[16]The Claimant relies upon the following detriments:(1) The delay in responding to the disclosures made on 13 January 2023;(2) The delay caused the Claimant to have to report the matter to HSE because he felt left out of the loop;(3) The Respondent failed to act on the certificate from January 2022 thereby putting the health of the Claimant and others at risk.(4) The Respondent failed to act on the risks identified in the certificate which may have had an adverse effect on the Claimants’ health and the health of others;(5) The Respondent made a false accusation. The Claimant had not reported the issue of the LEV malfunction if any concerns about the LEV.(6) Despite offering to discuss his concerns with him, the Respondent failed to arrange a meeting with the Claimant that he requested in March 2023.[17]Did these matters amount to a detriment?[18]If so, were they done on the grounds that he had made a protected disclosure?Evidence
[19]We heard from the following who gave evidence to the Tribunal, namely:(1) Mr Josiah Knight (Mr Knight), Registered Manager;(2) Mr David Kindred (Mr Kindred), Chair of Trustees;(3) The Claimant.[20]There was an agreed bundle of documents and where I refer to page numbers it is from that bundle.[21]Where there was any dispute about evidence, we preferred the evidence of the Respondent who was more consistent. The Claimant was not credible.Facts
[22]The Claimant commenced his employment with the Respondent on 7 December 2015. His contract is at page 201. He was employed as a Woodwork Team Leader.[23]The Respondent is a Christian charity and provides a supporting environment for adults with learning difficulties. It provides not only a home to these people but also work opportunities.[24]The Respondent has a disciplinary policy which is at page 140 and a whistleblowing policy which is at page 179.[25]In January 2022, an LEV was examined and failed its test. Mr Hopkins was with the Inspector when it did so (page 733).[26]On 11 January 2022 an email was sent including to the Claimant, saying that no machine should be used until it had been rectified.[27]On 18 January 2022 there was a health and safety meeting (page 743). The meeting was informed that the LEV system had failed and that the machine was not to be used. Despite this, the Claimant continued to use the machine.[28]On 9 August 2022 an email was sent to the Claimant (page 216-7). It pointed out that the machine was connected to the LEV and Cyclones and must not be used under any circumstances. Mr Hopkins said that it would not happen again.[29]On 11 August 2022 there was a meeting with Mr Hopkins where they discussed the possible return of the machine. He was asked to call the owner of the lathe and ask if he wanted it to be returned (page 196).[30]On 12 August 2022 Mr Hopkins again used the lathe without its extraction. He was spoken to by Kathryn Hurst and he again apologised for the use of the lathe (page 218).[31]On 16 August 2022 he was invited to attend an investigatory meeting. The letter of invitation is at page 798. The investigation was into:(1) Possible breaches of the health and safety of the workshop.(2) Not following good housekeeping principles and procedures.(3) Not completing the action plan that was put in place.(4) Not fulfilling the requirements of the job description in relation to health and safety.[32]On 19 August 2022 there was an investigatory meeting, conducted by Ms Hurst the notes of which are at page 219-221. Ms Hurst explained the investigation process, and they discussed Mr Hopkins understanding of his job description and the importance of him complying with health and safety policies. It was pointed out that concerns had been raised in February and March 2022 about the cleaning in Woodwork and how it should be carried out. They also discussed the use of the lathe. They discussed the allegations and an arrangement was made to meet again on 25 August 2022.[33]In the meeting he was asked about his use of the machine, and he did not deny using the machine.[34]On 23 August 2022 Mr Hopkins was involved in an altercation with Mr Ramsey Piggott (Mr Piggott), the Respondent’s Chief Executive. His report is at page 567 and is dated 25 August 2022. Mr Piggott had met with the claimant to see if he was happy regarding the cleaning and moving work in the workshop planned for that week and to clarify the plan ahead of a LEV engineer visiting later that morning to ensure respondent had a clear understanding of which machines were remaining operational and needed appropriately connecting to LEV dust extraction system.[35]At the meeting the claimant became agitated and began to complain about the PPE stating that he had to buy his own. Mr Piggott informed him that he must not do this because the mask was inappropriate and that the claimant should be wearing the mask which was fitted and provided to him. If he was not happy with the equipment, he should inform his line manager or Mr Piggott.[36]When the LEV engineer arrived and they were meeting with the claimant Mr Hopkins raised his voice at Mr Piggott and became agitated and then he walked out of the meeting. He later returned and apologised. Mr Piggott was concerned about the interaction in front of the LEV engineer and how the claimant had behaved.[37]The meeting was taking place with the representative of the LEV company. As described by Mr Piggott, the Claimant became agitated and was patronising towards him causing him embarrassment.[38]There was a meeting with the Claimant on 22 September 2022. The meeting was conducted by Ms Hurst. The notes are at page 225. During the meeting they discussed the usage of the lathe the interactions with the claimant and Mr Piggott and that the claimant’s interaction with Mr Piggott had become heated on the part of the claimant[39]The Claimant was therefore told about the allegation.[40]Ms Hurst investigated matters and spoke to both Mr Piggott and Peter Rowe who was an external health and safety consultant. She reviewed relevant emails and documents including the minutes of the meetings and the statement prepared by Mr Piggott.[41]During this investigation the Claimant raised a grievance on 21st October 2022. The grievance letter was given to Lydia Gibson by the claimant with the instruction to hand it to David Kindred. He was the chair of trustees of the respondent. The claimant complained of several matters.(1) Mr Piggott was harassing him with unannounced and unscheduled visits.(2) This Mr Piggott was intimidating him by using accusations and undermining his position.(3) Mr Piggott was responsible for specifications for a job but did not understand what was needed and would not listen to advice from competent workers, namely himself.(4) Mr Piggott was bullying the claimant and trying to lay blame upon him and make accusations against him.(5) That Mr Piggott had created additional stress by failing to get Woodwork up and running.[42]He said that this was all causing him stress and affecting his mental health. The grievance letter is at page 659.[43]The’s Respondent decided to proceed with the investigation meeting in relation to the disciplinary process as this had already been planned. Once the meeting had concluded though they decided it was appropriate to place the disciplinary process on hold until they had investigated the Claimant’s grievance.[44]On 26 October 2022 Mr Hopkins had a meeting with Ms Helen Meadows (Ms Meadows) (page 326-30). It had been brought to the attention of Ms Meadows that the claimant had failed to follow a management instruction regarding the removal of workshop equipment. A lathe had been donated to the Respondent, and this had been returned to the donor against the management instruction not to do so on two occasions. It also appeared that the Claimant had breached health and safety regarding the removal of the workshop equipment and failed to carry out a risk assessment for the process placing other colleagues at risk. He confirmed at the meeting that he had been instructed not to return it. Despite this, Mr Findle had collected the lathe on 14 October 2022.[45]On 26 October 2022 an investigation report was completed (page 239-240), which recommended that disciplinary action should take place relating to possible breaches of the health and safety in the workshop and the claimant’s attitude towards Mr Piggott.[46]The grievance meeting took place on 15 November 2022. The minutes of the meeting are at pages 256- 264 In attendance was Craig Mann trustee who was chair of the meeting and Debbie Dear. At the meeting they discussed the process that would be undertaken and the letter that the claimant had submitted making his allegations against Mr Piggott. Mr Mann spoke to:(1) Heather Parrott;(2) Peter Scott;(3) Josiah Knight;(4) Kathryn Hurst;(5) Ian Watson.[47]He also reviewed the respondent’s relevant policies and procedures, and the evidence provided by the claimant in the grievance hearing and the minutes of that hearing. He also looked at the risk assessments.[48]On 30 November 2022 Mr Mann wrote to the claimant with the outcome of his grievance. The letter is at page 291-7. His findings were as follows.(1) It was accepted that Mr Piggott had visited the workshop with external visitors on a few occasions. On no occasion did Mr Hopkins complain that the visit was affecting the session for the residents.(2) If external suppliers were attending for visits this should if possible, be rescheduled outside the session time with residents but on occasions they needed to come when it was convenient for them.(3) The grievance was not upheld, and Mr Piggott would continue with unannounced visits as part of quality assurance. Mr Piggott though would inform residents if the visits may happen and would try to inform the claimant in advance of any external visitors.(4) His allegation that Mr Piggott had accused him of changing the job specs for the LEV and that it was going to cost an extra £900 and the claimant would have to pay for it this was not upheld. Whilst Mr Piggott had said that there was going to be extra cost this was not going to fall upon the claimant.(5) Mr Hopkins allegations regarding risk assessments were not upheld. Mr Mann had reviewed the draft risk assessments and was satisfied that this was being managed appropriately.(6) Mr Hawkins complaint that the situation had been causing stress and that Mr Piggott was responsible for this was also not upheld.(7) The allegation that Mr Piggott was treating him differently was not upheld.(8) Mr Hopkins complaint that Mr Piggott would not give him health supervision and that he had made a reference to him working as a glassblower previously was not upheld.(9) Mr Hopkins allegation that he had requested training that wasn’t provided was not upheld.(10) Mr Hopkins contention that he felt not able to be creative because he was only producing kindling was not upheld.(11) Mr Hopkins allegation that Mr Piggott had been bullying him was not upheld.[49]In the meantime, on 17 November 2022 the claimant submitted a second grievance this time against Lydia Gibson which is at page 270 – 271. He complained.(1) That she had not been impartial.(2) That she had interfere interfered in the investigation meeting.(3) That she had made false accusations.(4) That she had falsified information.(5) That she had not conducted the investigation in a fair and reasonable manner.[50]On 14 December 2022 the Claimant was invited to a disciplinary hearing (page 346-8). There were four allegations, namely:(1) Possible breaches of health and safety in the workshop relating to the use of the lathe without the correct dust extraction.(2) Unacceptable attitude towards the CEO during discussions about the use of the lathe without correct dust extraction.(3) Failure to follow a management instruction regarding the removal of workshop equipment namely the lathe.(4) Breach of health and safety in the removal of the workshop equipment namely the lathe in that there had been a failure to carry out a risk assessment for the process.[51]In the meantime, Mr Mann undertook an investigation into these matters during the period 23rd to 29th of November 2022. He took a witness statement from Helen Meadows (pages 278-284) and reviewed the correspondence between the claimant and Helen Meadows regarding amendments he wanted to make to the minutes of the meeting on 26 October 2022, and he also considered the meeting minutes notes and the investigation folder.[52]On 1 December 2022 Mr Mann wrote to the claimant with an outcome to his grievance. None of these allegations were upheld. The letter of outcome is at pages 301-5.[53]The disciplinary meeting was due to take place on 19 December 2022, but this had to be adjourned, and he was invited to a further meeting on 11 January 2023. That meeting was to take place on 19 January 2023. The letter is at page 382. He was told of the allegations that were considered. He was sent copies of all the statements and the investigation.[54]On 12 January 2023 Mr Knight met with the Claimant. This was not part of the disciplinary hearing; it was a meeting that Mr Hopkins had requested (pages 385 and 387). The notes of the meeting are at pages 675-6.[55]At the meeting the Claimant outlined five concerns that he had which were:(1) Danger to health and safety;(2) Negligence;(3) Deliberate concealment of the above;(4) Breach of internal policies and procedures; and(5) Criminal activity.[56]All the matters raised are in the notes of the meeting.[57]Mr Knight took those issues seriously, commenced investigations into these issues and began to compile an outcome letter for the Claimant regarding those concerns.[58]He decided to proceed with the disciplinary process as this had been going on for a long time and he did not want to delay it further.[59]The disciplinary hearing between Mr Knight and Mr Hopkins took place on 19 January 2023. The notes are at pages 392-401. At the meeting the Claimant was accompanied. The allegations were put to him, namely:(1) Using a lathe without an extractor;(2) Serious insubordination; and(3) Neglect of his duties.[60]Mr Knight listened to the Claimants’ mitigating circumstances before deciding the outcome.[61]Mr Knight then continued with his investigation of the whistleblowing matters. He had in fact, received an email from CQC regarding an LEV test certificate on 8 February 2023 (pages 679-697).[62]On 15 February 2023 he also received an email from Mr Pigott regarding contact from HSE in response to a complaint they had received on the LEV.[63]Mr Knight sent a response to HSE on 17 February 2023 (page 698). No further action was taken in respect of those issues.[64]On 24 January 2023 the claimants appeal meeting was held to hear his appeal regarding the decisions made in his two grievances. Mr Kindred chaired the meeting. The notes of the meeting are at pages 463-476.[65]Mr Kindred wrote to the claimant with an outcome letter in respect of each is each of his grievance appeals on 15 February 2026. The outcome letter in respect of grievance one appeal is at page 491-493. The outcome letter in respect of grievance to appeal is at page 494-495. It can be seen neither of these grievances were upheld.[66]On 17 February 2023 Mr Knight wrote to the Claimant dismissing him from his employment. The letter is at page 507-14.[67]He considered that three allegations were proved against Mr Hopkins, namely:(1) That he had repeatedly breached health and safety rules and misused safety equipment. This related to the Claimant using the lathe and the LEV equipment when there was a sign which said, “Do Not Use”.(2) That he had failed to undertake a risk assessment in respect of the moving of the lathe which is a heavy piece of equipment.(3) That he had failed to follow a reasonable management instruction regarding the removal of the lathe and that he had been guilty of serious insubordination towards Mr Piggott the chief executive officer.[68]Mr Knight was satisfied that the Claimant had used the lathe when the LEV extraction unit had failed and there was a sign on it which said, “Do Not Use”.[69]He was satisfied with the evidence given by Mr Piggott in his witness statement at page 222. This was corroborated by the supervision notes that said that the Claimant had apologised to Ms Kathryn Hurst (Ms Hurst) on 12 August 2022 for using it, as can be seen at page 218.[70]Mr Knight was satisfied that Mr Hopkins would not have apologised twice for using the lathe if he had been using the extraction unit as he later alleged.[71]He was satisfied that using the machine without extraction could cause serious harm to others. The lathe had been used without extraction.[72]Mr Knight was also satisfied that the Claimant had moved the lathe without a risk assessment. It was a heavy piece of equipment which was difficult to move, and Mr Hopkins accepted that he had moved it. His case that a risk assessment was not required in the investigation hearing, was changed in the disciplinary hearing saying that he had completed a TILEO form, but he did not have a copy of it because, he said, it had been thrown away. Mr Knight was satisfied that he had not undertaken any risk assessment and did not believe Mr Hopkins.[73]In respect of the allegations of insubordination, this related to the return of the lathe to its owner. Mr Knight was satisfied that Mr Hopkins had been asked to call the owner and report back. That he had not reported back. He had also been told by Mr Pigott not to return the lathe. Instead, he had spoken to the owner and arranged to return it without informing anyone.[74]Mr Knight decided that the claimant had an unacceptable attitude towards the CEO Ramsay Piggott. In the disciplinary hearing he had referred to 12 arguments with Mr Piggott. In the meetings he had further maligned Mr Piggott, accusing him of not being a man of integrity. His behaviour towards Mr Piggott was disrespectful and insubordinate.[75]He was also charged with serious neglect of his duties which related to the above allegations about using the lathe without extraction and moving it without a risk assessment. Again, the allegations were serious and due to the severity of the allegations, Mr Knight was satisfied that this amounted to gross misconduct.[76]The fourth allegation of breach of the professional standards policy was not proceeded with.[77]Mr Knight considered mitigation. There were several matters that the claimant raised namely:(1) That he had not been involved in health and safety discussions in respect of which Mr Knight was satisfied that this was untrue.(2) He relied on the contents of the 2015 staff handbook which had been replaced by other policies which applied.(3) He said that he had not been given notice of the first investigation for what Mr Knight was satisfied that he had had an opportunity to state his case and make his points.(4) The claim that Lydia Gibson should not have been involved in any of the process. She was however a senior manager at the Trust.(5) He claimed that the process had gone on for too long, namely five months, but Mr Knight was satisfied that the main reason for the delay was because the claimant had raised grievances which had to be dealt with before they could make a final decision on his disciplinary.[78]Mr Knight decided that the only appropriate course of action was to dismiss Mr Hopkins for gross misconduct. His last working day would be 17 February 2023, and he would be paid any outstanding holiday pay that he was owed. The claimant was told of his right of appeal.[79]Mr Hopkins appealed against the decision on 28 February 2023 (page 596-600). There were several grounds to his appeal which included the issues of impartiality, unfair investigations and outcomes.[80]There was an appeal hearing on 15 March 2023 which was conducted by Mr Kindred (page 621-29). Mr Hopkins was accompanied by his partner. The meeting lasted well over two hours. Mr Hopkins produced various documents to support his contentions and was allowed to address all the points of his appeal.[81]His outcome letter is dated 27 April 2023 and is at page 638 at which he upheld the decision to dismiss. None of the claimant’s contentions made in both his appeal letter and that the meeting were upheld.[82]Mr Kindred was satisfied that the procedure followed by the respondents had been fair and reasonable and those who had been involved in the disciplinary investigation and decision-making process were not a CA theory is that biased. All evidence has been properly considered. And that there had been no abuse of the process by anyone.[83]There were delays in the process, but these were not avoidable. The original complaint had been made in August 2022, and an investigation took place promptly. Further issues were raised in October 2022. The Claimant was then off sick between 8 November 2022 and 7 December 2022.[84]Also, during this period, he had raised grievances which needed to be dealt with and addressed before a decision could be made.The Law
[85]The first claim of unfair dismissal is made under section 94 (ERA).[86]Section 98 (ERA) provides: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show:(a) The reason (or, if more than one, the principal reason) for the dismissal, and(b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it: (b) relates to the conduct of the employee, (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer); (a) depends on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. Whistleblowing Dismissal[87]Section 103A (ERA) provides: “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”.[88]Section 43(b) of the (ERA) defines disclosures qualifying for protection: (1) “In this Part, a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure is made in the public interest and tends to show one or more of the following: (a) That a criminal offence has been committed, is being committed or is likely to be committed, (b) That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) That a miscarriage of justice has occurred, is occurring or is likely to occur, (d) That the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. Protected Disclosures[89]It is defined in section 47(b) (ERA) which provides: “(1) 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.”Conclusions
[90]In this case we are satisfied that the reason for his dismissal was his conduct namely:(1) Use of the lathe without extraction;(2) Insubordination of the Chief Executive Officer;(3) Moving the lathe without assessment; and(4) Returning the lathe to its owner in breach of a management instruction.[91]We are satisfied that it had nothing to do with the disclosure that he made on 12 January 2023. By that time, the disciplinary process had already been commenced, and we are satisfied with Mr Knights’ evidence, it had no bearing on his decision.[92]We are satisfied that Mr Knight had a genuine belief that Mr Hopkins had committed the acts complained of. Indeed, he had admitted most of the allegations that were made against him.[93]In those circumstances he had reasonable ground for that belief.[94]At the time of the dismissal, the Respondent had conducted a thorough investigation. They had complied with the ACAS code of practice and followed a fair procedure. Any delays in the process were reasonable.[95]Most importantly, dismissal was well within the band of reasonable responses.[96]Regarding the Claimants detriment claim, we are satisfied that his alleged disclosure did not amount to a disclosure of information. He had not made disclosures of information simply allegations. Furthermore, it was not made in the public interest. We are satisfied that it was only made in retaliation to the allegations that he had been in breach of health and safety himself.[97]Even if he had made a protected disclosure, we are satisfied that he had not suffered any of the detriments that he alleges.[98]So far as his breach of contract claim is concerned, we are satisfied that the Respondent was entitled to dismiss him without notice because of his fundamental breach of his contract of employment. His claim for breach of contract therefore also fails and is dismissed. Approved by