Employment Judge BrittonIn person for claimantDate 11 April 2017
JUDGMENT
[1]The tribunal has jurisdiction to hear the claim of unfair dismissal, it being based upon whistle blowing and thus two years qualifying service not being needed.[2]For the avoidance of doubt, there is also a claim of detrimental treatment by reason of whistle blowing short of dismissal.[3]Directions including the listing of the main Hearing are hereinafter set out.
REASONS
[1]The claim (ET1) was presented by Mr Thomas Fertsch, who is Polish, to the Tribunal on 13 December 2016. He pleaded that he had been employed by the Respondent as a production operative from 20 June 2014 to 6 September 2016. He ticked the box for unfair dismissal. The claim is in time and ACAS early conciliation compliant. His claim read as far as this judge is concerned as being one relating to having been dismissed, having raised issues that prima facie could constitute whistle blowing. Page 1 of 7[2]Turning to the Response (ET3) it was pleaded that he did not have 2 years’ qualifying service. As it turns out before me that is not in dispute. The reason why it was so pleaded, is that the claimant had actually been previously working at the respondent via an Agency, Essentials, from 17 March 2014 up to 29 August 2016. Thus at the dismissal he had only been an employee of the Respondent, for about 2 weeks thus he had not got two years’ qualifying service to bring a claim of unfair dismissal and so the claim should be struck out. It was also pleaded that in any event his claim had no merit as he had raised issues because he didn’t like the thought that he might have to change shifts but which contractually, he could be required to do. Thus this was not whistle blowing. This was to be hardened up in the subsequent submissions that the tribunal received.[3]In those circumstances another judge asked the claimant to agree that he didn’t have the necessary 2 years qualifying service. The claimant replied accepting that he had been employed previously by Essentials, but from the content of his reply it was absolutely clear that he was raising that he didn’t need qualifying service because his claim was based upon whistle blowing.[4]As I say, the respondent at this stage also additionally provided information setting out inter alia that it considered that this claim was vexatious and had no reasonable prospect of success and refuting that there was element in terms of the dismissal which related to whistle blowing.[5]The Notice of Hearing for today that went out made it plain that today would be to adjudicate upon whether the claimant had qualifying service, but implicit from the preceding correspondence to which I have now referred would be as to whether or not the Claimant needed any qualifying service depending upon what was the reason for the dismissal. This is because if the scenario prima facie engaged whistle blowing, then he would not need qualifying service to bring his claim. I appreciate that that was not perhaps understood to be on the agenda by the respondent, but I have given it full opportunity to address the issue and which I have explored with not only the claimant, but the 2 senior employers for the respondent present today, Mr White and Mr Wood. I want to make it plain that when dealing with this type of issue as to jurisdiction and whether a case has prima facie merit at a preliminary hearing sworn evidence is not usually taken and the matter is adjudicated upon from the papers before the judge and the making of submissions. This is the course that I have adopted.[6]Thus as is clear from that which I have already rehearsed, the claim is clearly predicated upon dismissal following whistle blowing. Therefore, pursuant to section 103A of the Employment Rights Act 1996 (the ERA) the claimant does not need the usual 2 years’ qualifying service in order to bring his claim. So that dispenses of that issue because he was of course dismissed.[7]Therefore the issue becomes was a reason, and it doesn’t have to be the only one, for the claimant’s dismissal because he had raised what constitutes public interest disclosures. The respondent submits that I should strike out the claim because there is no merit in the whistle blowing contention. But is there a prima facie case? Conversely is the claim one which has no reasonable prospect of success? In making my adjudication I remind the parties that a claim based upon whistle blowing is to be viewed as per one of discrimination. It should only be struck out in exceptional cases1. In other words where for example it is clear that whistle blowing as a matter 1 Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 CA. Page 2 of 7 of law from the undisputed documentation simply was not engaged: thus the claim is based on a misunderstanding of what constitutes whistle blowing and it is obvious that the pleaded scenario and the source documentation simply doesn’t engage the concept. But if it is prima facie engaged, then as to whether it was a reason for the dismissal will require findings of fact which is the province of the tribunal at the Hearing.[8]The following is the scenario as I find it to be. I make clear that my findings do not bind the tribunal at the full Hearing.8.1 The respondent makes specialist containers i.e. for the shipping industry, at its factory in Worksop. It has approximately 123 of its own workforce on site. On top of that, subject to production demands, agency workers average between 12 and 18 per shift. Its main supply of agency labour at the material time was Essential. Not in dispute, is that the Claimant, who is Polish, had been a first rate worker whilst engaged for some 2 ½ years via Essentials. That of course is why, the respondent decided to directly employ him from 29 August 2016, albeit subject to a 6 months probationary period. Such jobs are highly sought after as was made plain before me today.8.2 What the claimant tells me by way of further explanation of the claim , is that as an agency worker, he and in particularly the eastern Europeans were singled out for detrimental treatment by one or 2 of the team leaders employed by the respondent. This would involve what on the face of it would be bullying and harassment; so perfunctory ordering around; interfering with their privacy on lunch breaks; clicking of fingers and matters of that nature. It was coupled says the claimant, with at least once him being told to “go back home”. Furthermore the deeply offensive suggestion, that he “should go home and have anal sex with his partner”. He kept what was happening to himself. The respondent quite understandably says to me, why? In all that time whilst working for Essentials, which has its own Dignity at Work Policies, why didn’t he complain? In essence, what the claimant says to me is “Well, that’s because I was an agency worker and, I feared that if I did, my chances of getting a job with Schutz would not be fulfilled, so I kept my powder dry.”8.3 Not really in dispute is that on 30 August, which would be his actual first day of working post the bank holiday, when he started his shift Mr M Wood, who is the plant manager, knowing that the claimant had come to reception to hand in his signed contract thought he’d just have him in his office to congratulate him. This he did and shook his hand. Suffice it to say the picture I get is that the claimant said he’d something he would like to tell Mr Wood and then spilt the beans, so to speak, on what I have just described. Mr Wood was understandably taken aback and said that he would need more information if he was going to formally investigate the matter.8.4 There is then a conflict. The Claimant says that Mr Wood wanted names. He was reluctant to provide them because he was still a “new boy” so to speak as an employee of the respondent, on a probation period, and thus he did not want any repercussions. In raising what had happened with Mr Wood he had not intended do so formally albeit he “wanted the employer to know these concerns and because it shouldn’t happen to the workforce and they shouldn’t be treated in this way i.e. agency workers.” Mr Wood tells me that he did not ask for names, but that he did say that he would need more information if the matter was to proceed, but the claimant was reluctant to give it and said Page 3 of 7 something about he might need to get legal advice. However, to cut a long story short in that conversation it does not now appear to be in dispute that there was not any specific statement made by the claimant about not wanting to change shifts from where he usually worked whilst employed via Essentials. . Mr Wood got the feeling that that might be what was behind it, but he didn’t ask.8.5 That brings me to Michael White who is the Production Manager. In the run up to the claimant starting his employment with the respondent, Mr White had explained to the claimant that now he was going to be on the Schutz payroll he would have to expect that from time to time he might have to go on other shifts or to other parts of the factory floor. What the claimant refers to as “other side”. Mr White says that the claimant said he didn’t have a problem with that and which the claimant confirmed to be the case today.8.6 In the next few days post the disclosure by the Claimant on the 30th August, Mr Wood first of all asked discreetly, one or 2 of the shift managers, I stress not team leaders, as to whether they had seen anything going on so to speak and including such as the anal sex remark and they said no. He then decided to wait until the HR Manager, Michelle Fletcher, returned from her holiday and talk it through further with her, she returned to work on 6 September.8.7 But in the interim post 30th August the Claimant says that from the following day up to his last day worked, Friday 2 September, he was now cold shouldered and subjected to upsetting remarks which could only be as a consequence of what he had disclosed to Mr Wood having leaked back to the team leaders and the factory floor. If proven to be correct, this would constitute detrimental treatment pursuant to section 47B. As a consequence of this treatment on the Monday 5 September, the claimant’s partner had come into the factory and explained that he had been taken unwell. She referred to him having “deep depression”. In due course, the claimant was to obtain a “fit note” from his GP who he saw on the 6th. The fit note describes the claimant as having “low mood”. It seems that the respondent didn’t have the fit note when it dismissed him.8.8 On the 6th Mr Wood and Mrs Fletcher decided to dismiss the Claimant. As to why is clearly set out in the dismissal letter before me (bundle page (Bp) 78- 79). It refers to 2 reasons for the dismissal; first in summary is the raising of the allegations on the 30th August but then not being prepared to back them up. It is implicit from that letter that in the context of a failure to previously complain Mr Wood was sceptical as to the genuiness of the complaint. The second reason refers to not making full disclosure to the nurse for the purposes of the health assessment which the claimant underwent in the run up to being offered the permanent post. This appears to be based on the premise that the claimant had an underlying depressive medical condition. But when the claimant was dismissed the respondent did not have any fit note. All it knew is that the claimant’s partner had said that he was in “deep depression”. It did not it seems, interview that partner. It didn’t have the health documentation that the claimant sent in to the tribunal about himself circa 25 January and which was copied to the respondent. This does not show any mental history before presenting to the GP with “low mood” in the 6th. And of course the phrase in “deep depression” in itself can mean all manner of things. It can mean that somebody is just knocked back by something that has happened to them, it doesn’t mean they are actually clinically depressed. Page 4 of 78.9 As to the dismissal he was not afforded an appeal. That is of course because the Respondent didn’t think it needed to because of his lack of qualifying service. Conclusions for the purposes of today[9]Prima facie, that which the claimant raised to Mr Wood on the 30th August would come within the definition of whistle blowing at section 43B of the ERA in that first he has disclosed information. He did not just make an allegation. He clearly from what he is telling me today reasonably believed in what he was saying. What he said, clearly would tend to show that at the very least 43B (1) (b) was engaged; that is to say that the respondent was “failing or like to be failing to comply with a legal obligation to which it e was subject” i.e. the prevention of racial or nationality based discrimination or sex discrimination at work pursuant to the Equality Act 2010.[10]Therefore, on the face of it and no more than that a reason for this dismissal prima facie appears to be that he was dismissed because he had made that disclosure to his employer. I only say that because to what extent is he then obliged to go through the naming of names without such as a guarantee of confidentiality? Thus prima facie section 103A of the ERA applies. “An employee who is dismissed shall be regarded for this part as unfairly dismissed, if the reason or if more than one, the principle reason the dismissal is that the employee made a protected disclosure.” I repeat that qualifying service it is not required as to which see section 108(3) (f).[11]Thus it cannot be said that this claim has no reasonable prospect of success. As for making a Deposit Order, it equally cannot be said that it only has little reasonable prospect of success as this is a case where it is going to be very much dependent on findings of fact by the tribunal at the substantive hearing. I have said before a full tribunal because as is now clear, this claim also encompasses detrimental treatment short of dismissal pursuant to section 47 of the ERA which thus means as per the jurisdiction that it must be heard before a full tribunal. ORDERS Made pursuant to the Employment Tribunal Rules 2013 1. The trial bundle is actually already being prepared. 2. The claimant will by Friday 18 March 2017, provide a numbered paragraphed full witness statement to the respondent setting out his case. I have explained what I expect to see. There is no need to refer to the “ALMIGHTY” or matters of that nature as he has previously. I want him to provide a statement which simply deals with the narrative of events; what happened leading all the way through to his going off work on 2 September, and seeing his doctor and why he did so. The respondent will then reply with its witness statements by Friday 15 April 2017. The claimant then has a right of reply by 22 April. This means that if there is anything in the witness statements that the respondent sends him which he didn’t know about, then he is entitled to comment about it in writing. Page 5 of 7 3. I see no need for a chronology, cast list or reading in as the issues are straight forward, the paperwork not extensive and only 4 witnesses in total are envisaged. 4. The hearing will now take place before a full tribunal at on 26-27 April 2017 at the Nottingham Tribunal centre full details of which have already been provided in the first notice of hearing issued on 22 December 2016. The claimant has a good command of English and has not requested the services of an interpreter. NOTES(i) The above Order has been fully explained to the parties and all compliance dates stand even if this written record of the Order is not received until after compliance dates have passed.(ii) Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996.(iii) The Tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.(iv) An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative. Any further applications should be made on receipt of this Order or as soon as possible. The attention of the parties is drawn to the Presidential Guidance on ‘General Case Management’: https://www.judiciary.gov.uk/wp-content/uploads/2014/08/presidential-guidancegeneral-case-management.pdf(v) The parties are reminded of rule 92: “Where a party sends a communication to the Tribunal (except an application under rule 32) it shall send a copy to all other parties, and state that it has done so (by use of “cc” or otherwise). The Tribunal may order a departure from this rule where it considers it in the interests of justice to do so.” If, when writing to the tribunal, the parties do not comply with this rule, the tribunal may decide not to consider what they have written.[1]In these proceedings Mr Thomas Fertsch brings a complaint of unfair dismissal as well as a complaint of having suffered a detriment for making a protected disclosure (whistleblowing). This hearing follows a preliminary hearing held on 1 March 2017 before Employment Judge Britton written reasons for which were sent to the parties on 11 April 2017. At that hearing Employment Judge Britton decided that the Tribunal had jurisdiction to hear the Claimant’s complaint of unfair dismissal based upon the allegation of whistleblowing only, the Claimant not having the qualifying period of service for ‘ordinary’ unfair dismissal. He also decided that it was not appropriate to either strike out either of the unfair dismissal or detriment claims or to order a deposit. Although Page 1 of 8 Employment Judge Britton made it clear that his findings of fact at that hearing did not bind any future Tribunal, having heard the evidence in more detail there is no reason to depart from his findings as they are wholly consistent with the evidence we have heard.[2]Mr Fertsch is of Polish origin. He has worked in the UK for some time. For present purposes he was engaged by the Respondent as a Production Operative via an agency (HR Essential Limited, trading as ‘Essential Recruitment’) from 17 March 2014 to 29 August 2016. He became a direct employee of the Respondent on 29 August 2016 undertaking the same role. His employment ended on 6 September 2016.[3]The Respondent makes specialist containers for the shipping industry at its factory in Worksop. As Employment Judge Britton pointed out earlier, jobs in this particular industry or line of work are hard to come by. Having demonstrated his skill and efficiency as an agency worker, the Respondent decided to offer the Claimant direct employment in early August 2016. Mr Fertsch was overjoyed at the offer of direct employment. His joy might appear somewhat excessive but nonetheless genuine. In his witness statement he says that he “felt like the son of God. I was so happy that I finally had the contract”.[4]On Tuesday 30 August 2016, at approximately 9.00 am, Mr Fertsch turned up unannounced in the company’s reception area. He said he wanted to see the HR Manager but was told she was on leave. He then asked to see Mr Mark Wood, the Plant Manager, instead. Mr Wood thought it was a bit unusual for Mr Fertsch to thank him personally but it would be good for morale for him to personally welcome the Claimant as an employee of the business. Mr Wood met Mr Fertsch in the reception area and led him to his office where in the usual way he intended to ask the Claimant to sit down. Before he had the opportunity to do so however, he realised Mr Fertsch had followed him through the office door, walked right up the length of the office and positioned himself close to Mr Wood’s desk standing no more than a metre or metre and half away. There was no physical barrier which there ordinarily would be if Mr Fertsch had sat down. Mr Wood felt distinctly uneasy at Mr Fertsch being so close to him but he nevertheless carried on. He welcomed Mr Fertsch to the company. Mr Fertsch in turn thanked Mr Wood for the job. At that point Mr Wood expected Mr Fertsch to leave. Instead, Mr Fertsch said that there were some things he wanted to say. He began by saying that he was unhappy that his colleagues knew that he would be moving shifts yet he was the last to know. He said he had suffered a lot of stress in the past. Mr Wood thought Mr Fertsch was angling to stay where he was instead of having to move to a different shift. Mr Wood said that he was unaware of any immediate arrangement to transfer to another shift but explained that it was sometimes necessary to do so in order to maintain a balance of experienced and less experienced workers on any given shift.[5]Mr Fertsch agreed and that what Mr Wood said made sense. Once again Mr Wood expected the conversation to end and for Mr Fertsch to leave. Mr Fertsch went on to say that whilst at work he was a quiet person, outside of the factory gates he knew how to handle himself. Mr Wood did not know quite how to react. There was an uncomfortable silence. Mr Wood began to wonder where the conversation was leading and his initial discomfort began to develop into a sense of apprehension. This was compounded by the fact that Mr Fertsch had now moved even closer and had begun to stare directly at him. Mr Fertsch said that he was unhappy with the way he had been spoken to whilst working at the Page 2 of 8 site by some fellow workers. Mr Wood asked for specific details. Mr Fertsch said he had suffered a lot of stress but these were matters for him and his lawyer. Mr Wood was somewhat startled by the reference to lawyers as he was unaware of any legal proceedings. He reassured Mr Fertsch that the company would not tolerate inappropriate behaviour but he needed more information as to what he was being alleged. Mr Fertsch agreed to provide a couple of examples but was adamant he did not want to name names. Mr Wood responded by asking Mr Fertsch to tell him what he felt comfortable in disclosing. Mr Fertsch said that whilst sitting in the canteen on a break one of his colleagues had told him to go home and have anal sex with his girlfriend. Mr Wood said that he could understand how such behaviour would be offensive and assured Mr Fertsch that it was not typical of the way in which company employees behaved nor would he find such behaviour acceptable. Mr Fertsch went on to add that there had been racist comments made both against him and in his presence about Polish people. Mr Fertsch said that he did not like the way team leaders spoke to him and that this stress had led him to consult his doctor. He mentioned once again that his lawyer was dealing with these things. Mr Wood said that he was able to support him if he wished to pursue a complaint but Mr Fertsch declined saying he would prefer to speak with his lawyer instead. Mr Wood reiterated that he was open to discuss matters if Mr Fertsch changed his mind. Mr Fertsch then left.[6]Mr Wood’s evidence to us was that he had never encountered such a meeting or discussion in his entire working life. The manner in which the Claimant spoke to him was very composed and controlled. The Claimant was staring all the time, which Mr Wood found very unnerving and intimidating. Mr Fertsch was abrupt and always straight to the point. Mr Wood sensed that it was the Claimant’s intention to ensure that he had control of the meeting throughout. He believed that the Claimant had come in to make certain threats that if things did not go his way, he knew how to handle himself which implied a physical confrontation or that he would refer things to his lawyer which implied a threat of legal proceedings.[7]Immediately after the meeting, Mr Wood sent an e-mail to Ms Fletcher the HR Officer whilst the incident was still fresh in his mind. He also went to speak to the Shift Leader and the Senior Shift Leader about the allegations. Mr Wood made it clear to both of them that the discussions were strictly confidential and must not to be relayed or discussed with any of the Claimant’s colleagues. Both Shift Leader and Senior Shift Leader said they were unaware of any historic problems although on one occasion the Claimant had ignored the instructions of his Team Leader. Mr Wood wanted to undertake an investigation but did not feel confident of being able to do so with the scant information he had.[8]A few days later when the Claimant had not been absent from work Mr Wood discovered that the Claimant’s then partner had visited the company and asked to see someone from management. She had reported that Mr Fertsch was not able to come to work and was suffering from a “deep depression”. She said he had not been unable to leave the house for several days. Mr Wood inferred both from the Claimant’s absence and his discussion that Mr Fertsch was somehow seeking to engineer a legal case against the company for his depression which had not previously been identified in the years he worked via an agency. He immediately regretted the decision to offer Mr Fertsch direct employment. On 6 September 2016 he sent the Claimant a letter of dismissal. The relevant paragraphs of the dismissal letter are as follows: Page 3 of 8 “I am both surprised and disappointed at the nature of the allegations that you have raised. As I explained during our discussion, the company takes a very dim view of anyone demonstrating the behaviours suggested by you and indeed, our internal policies and procedures support our zero tolerance approach in this respect. As a company our duty of care responsibility to employees remains our highest priority and as such and in the absence of definitive evidence, regretfully I am unable to allow you to continue to work under the circumstances.”[9]We do not propose to repeat the facts set out in the preliminary hearing as to the alleged racist and sexist comments which the Claimant says were made by his non-Polish colleagues but simply adopt them for the purposes of our judgment. We are satisfied that the alleged comments were made not least as the Respondent has not called any evidence to rebut them which it could easily have done. The focus of the evidence at this hearing has been largely on the meeting between the Claimant and Mr Wood on 30 August which we have described above. What we do find as a fact is that after Mr Wood’s meeting with Mr Fertsch, word somehow got out that Mr Fertsch had complained about the treatment he had been receiving and about the sexist and racist remarks by his colleagues. There is simply no other explanation for the Claimant being subsequently ostracised by his colleagues.[10]We accept that the comments made to the Claimant by his colleagues included the following: “When will Polish people finally learn to speak English? Or maybe you Polish want us to learn Polish. Tom [the Claimant] did you ever have anal sex with your partner?.”[11]The day after the Claimant’s meeting with Mr Wood one of his colleagues began singing a line from a song: “let’s talk about sex, you and me, let’s talk about sex!”[12]On another occasion when leaving the staff room a colleague said, in the Claimant’s presence: “Shush, let’s be careful what we talk about now”.[13]On 2 September whilst the Claimant was on the morning shift he was sent to the Rico site without explanation. The Team Leader was clearly surprised to see him which suggested that there had no planned decision to send him there.
THE LAW
[14]Section 43A of the Employment Rights Act 1996 (‘ERA 1996’) states: “In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”[15]Section 43B of ERA 1996, so far as it is relevant, states: “(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:- (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, Page 4 of 8[16]Section 47B of ERA states: “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.”[17]Section 103A of ERA 1996 states: “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.”[18]Section 48 (2) of ERA 1996 states:- “On a complaint under subsection (1), (1ZA), (1A) or (1B)] it is for the employer to show the ground on which any act, or deliberate failure to act, was done.”
THE ISSUES
[19]The issues in this case are as follows:-19.1 Did the Claimant make a qualifying disclosure which amounted to a protected disclosure?19.2 Was it a disclosure of information?19.3 Did the Claimant have a reasonable belief in making the disclosure?19.4 Was the disclosure made in good faith?19.5 Was the protected disclosure the cause of the dismissal or detriment?19.6 Was the disclosure for personal gain?19.7 Was the disclosure in the public interest?
CONCLUSIONS
[20]We are satisfied that the Claimant made a qualifying disclosure which amounted to a protected disclosure. The Respondent has a legal duty to prevent racist and sexist behaviour at the workplace. For the purposes of whistleblowing, it is irrelevant whether or not the alleged comments were actually made. All that is required is that the whistleblower must have a reasonable belief that the comments were made.[21]We are satisfied that the Claimant’s belief as to the discriminatory comments was based on reasonable grounds. Mr Wood clearly believed that there could be some substance in the remarks being made which is why he wanted to launch an investigation. Clearly, if he thought it was entirely fabricated he would not have spoken to his managerial staff at all. One of the reasons he gives for dismissing the Claimant was because Mr Fertsch refused to co-operate in that investigation which again suggests that he believed there was a possibility of such conduct.[22]We are satisfied that the disclosure was indeed a disclosure of information and not a mere allegation. The Claimant was giving specific information as to Page 5 of 8 what had been said at the workplace rather than making a general allegation of unlawful behaviour.[23]We are also satisfied, insofar as it is necessary, that the Claimant made the allegations in good faith. Good faith as a requirement for disclosures has of course been removed for complaints that fall after 25 June 2013 and is now relevant only as to compensation. Insofar as it is suggested that the allegations were made in bad faith, the suggestion is rejected. The disclosure was not for personal gain.[24]The crucial issue in this case is of causation – that is whether or not any detriment was on the ground that the Claimant had made a protected disclosure and/or whether the principal reason for the dismissal was that the Claimant had made a protected disclosure.[25]Under section 48(2) ERA 1996 it is for the Respondent to establish (once the Claimant shown a prima facie case) that the reason for the treatment was not the making of the protected disclosure. Here the Claimant clearly establishes a prima facie case. The burden is then on the Respondent to show, in accordance with section 48(2) ERA, that the reason for the treatment was not the making of the protected disclosure[26]We have considered the possibility that the treatment of the Claimant by his colleagues might have been for reasons other than the making of the protected disclosure. We consider that unlikely because whilst the Claimant has complaints about being treated poorly by his colleagues, he does not complain of being isolated or cold shouldered until after the meeting with Mr Wood of 30 August.[27]Has the Respondent produced any evidence to rebut the prima facie case that it was the fact of making the protected disclosures which caused the Claimant to be treated in the way that he was by his colleagues? The answer to that is no. The Respondent could easily have called the work colleagues or supervisors to give evidence and rebut the Claimant’s allegations that the treatment post 30 August was not because they had discovered he had been speaking to Mr Wood but for some other reason, but it has not done so. Equally, the Respondent has not provided any explanation as to why the Claimant was sent to a different site when he was not expected there. We infer that his colleagues became aware of the fact that the Claimant had made complaints about them to Mr Wood and treated him in the way that they did as a consequence. That would be consistent with the Claimant’s evidence (which we accept) that it became ‘even worse at work for him than it was before’.[28]We are satisfied that the Claimant suffered a detriment. The Claimant was cold shouldered and ostracised by his colleagues. They intensified their comments of a deeply personal and sexual nature which caused him stress and anxiety. The Claimant’s description of that as a “deep depression” may be something of an exaggeration but there is no doubt that the Claimant went to see his GP who described the Claimant as having “low mood”.[29]In relation to the unfair dismissal complaint the relevant legal test is different to detriment. The Tribunal must be satisfied that the reason or principal reason for dismissal was that the employee made a protected disclosure. On the facts we conclude that the reason for the dismissal was because Mr Wood had Page 6 of 8 found the Claimant’s behaviour at the meeting on 30 August (whether intended or not) to be menacing, intimidating and threatening.[30]In that respect we do not find the reasons Mr Wood gives in the letter of dismissal to be completely true. The reasons given are firstly that the Claimant failed to provide information as to the allegations so that they could not be investigated and as such the company was unable to implement its zero tolerance approach. The second was the Claimant had failed to disclose depression in a pre-employment medical assessment questionnaire which he was now seeking to rely on. Without names Mr Wood might not have been able to undertake a full investigation but he had enough information that racist and sexist remarks were being made at the workplace and he had enough information to be able to speak to his managerial staff about it. If Mr Wood was sceptical as to the allegations there was no logical reason to punish Mr Fertsch for failing to provide more information. He could simply have said that the allegation could not be pursued for lack of information.[31]As to the second ‘reason’, the Claimant had not falsely represented that he had never previously suffered from depression. The Respondent had no evidence of any prior medical history before receiving the GP note as to the Claimant’s mental condition. Mr Wood appears to have jumped to the conclusion that Mr Fertsch was somehow threatening to bring legal proceedings based on a condition he had not disclosed. But it is quite possible that the Claimant was referring to low mood which his GP mentions and which he may never heve previously suffered from.[32]We find the principal reason for the dismissal to have been the Claimant’s behaviour at the meeting on 30 August and not the protected disclosure. That is clear from Mr Wood’s account of the meeting and his actions afterwards. Precisely why Mr Wood chose not to be completely frank in saying so in the dismissal letter matters which he now sets out in some detail in his witness statement is not clear. The disingenuous nature of the letter does not however taint the rest of his evidence. We accept that he felt very uneasy about the Claimant both during and after the meeting and wondered about the wisdom of employing him. In those circumstances the complaint of unfair dismissal is dismissed.[33]The issue of remedy as to the successful detriment complaint is adjourned to enable the Claimant to obtain advice. It may well be that given the rather limited extent of the complaint on which he succeeds that the issue of remedy can be agreed. We must make it clear to the Claimant, for the avoidance of doubt that any losses which flow from the dismissal cannot be the subject of compensation nor is the Claimant entitled to claim damages for injury to feelings arising out of the dismissal. His claim for injury to feelings must be limited to the detriment suffered only.