Mr J Prastalo v Switch Up CIC: 2603574/2019
JUDGMENT
[1]The claims of discrimination, detriments for making a protected disclosure, wrongful dismissal and unlawful deductions from wages are dismissed on withdrawal by the Claimant. The remaining claims will proceed to hearing. _____________________________ Employment Judge Butler Date: 27 October 2020[2]JUDGMENT SENT TO THE PARTIES ON ........................................................................ ........................................................................ FOR THE TRIBUNAL OFFICE[3]Case Number: 2603574/2019 EMPLOYMENT TRIBUNALS Claimant: Mr J Prastalo Respondent: Switch UP CIC[4]JUDGMENT ON RECONSIDERATION The Claimant’s application for reconsideration of the judgment sent to the parties on 2 November 2020 is granted. The judgment is now: The claims of discrimination, wrongful dismissal and unlawful deductions from wages are dismissed on withdrawal by the Claimant. The remaining claims will proceed to hearing.REASONS
At the preliminary hearing on 16 October 2020, counsel for the Claimant wrongly confirmed that his claim for detriment as a result of making a protected disclosure was being withdrawn but subsequently confirmed it was not being withdrawn, a point which was not recorded by me. _____________________________ Employment Judge Butler Date:12 February 2021 JUDGMENT SENT TO THE PARTIES ON ..................................................................................... ...................................................................................... FOR THE TRIBUNAL OFFICE Case No: 2603574/2019 10.7 Judgment with reasons – rule 62 March 2017 EMPLOYMENT TRIBUNALS Claimant: Mr J Prestalo Respondent: Switch UP CIC Heard at: Nottingham On: 28 April 2021 Before: Employment Judge Butler (sitting alone) JUDGMENT The Judgment of the Tribunal is that the following documents are disclosable in these proceedings:[1]The Claimant’s bullying grievance against his former employer;[2]His letter to his former employer dated 18 November 2015;[3]His settlement agreement with his former employer; and[4]His whistleblowing letter to his previous employer dated 21 January 2016.Background
[5]I have considered the following matters to be of importance:5.1 The Claimant kept private documents and correspondence on the Respondent’s computer system.5.2 There is no suggestion that the Respondent was looking for private documents only documents it maintains the Claimant deleted which were relevant to the Respondent’s business.5.3 There is no suggestion that the documents were password protected by the Claimant.5.4 The submissions do not explain why the Claimant chose to store the documents in this way.[6]I have considered the following legal principles:6.1 Whether this evidence is logically probative of some matter which requires proof (O’Brien) and is not too marginal.6.2 Whether the documents are relevant to the Claimant’s credibility (Fox).6.3 Whether the fact that the documents are confidential justifies non-disclosure (Canadian Imperial Bank of Commerce).6.4 Whether the Respondent’s retrieval of the documents was unlawful.6.5 Article 8(2) ECHR regarding private life.[7]I have also taken account of the judgment in Simpkin v The Berkeley Group Holdings PLC [2017] EWCH 1472 (QB).[8]I consider the documents to be relevant to the issue of good faith which, in turn, may be reflected in any compensation awarded to the Claimant. The documents may also be relevant to credibility. Having said that, disclosing the documents is not an opportunity for the Respondent to examine the merits or Case No: 2603574/2019 10.7 Judgment with reasons – rule 62 March 2017 otherwise of a settlement agreement. Calling witnesses to that effect, from both sides, is unnecessary in my view.[9]I see no reason why the documents should not be disclosed because they are marked as being confidential. If they are relevant to the proceedings, which I find they are, they should be disclosed.[10]The Claimant has not established that the retrieval of the documents by the Respondent was unlawful. There is no indication before me that they were separated from the Respondent’s documents, for example, by being marked as confidential, password protected and/or in a separate folder. The Respondent is entitled to examine its own hard drive.[11]I cannot see that there is any breach of the Claimant’s right to respect for his private life. Given my comments in clause 10 above, he seems to have decided himself that the documents relating to private matters should be kept on the Respondent’s system during the time he was employed. If the Respondent then discovers the documents while carrying out a lawful exercise, there is no breach of Article 8. There is reference before me to medical matters being discovered in relation to the Claimant’s wife. Again, quite why he would store these where he did is a matter for him but, in any event, they have nothing to do with this case and I do not order them to be disclosed, nor does the Respondent seek to disclose them.[12]The Claimant has made an application for wasted costs in relation to having to make written submissions. His solicitors say they sent the hearing bundle to the Respondent’s solicitors and they should have ensured that their counsel, Ms Johns, had received them. The fact that she had not was the reason why submissions were ordered to be made.[13]I dismiss the application for wasted costs. It appears that the bundle was only sent to the Respondent’s solicitors and the Tribunal on the day before the last hearing. This is too late and, whatever the reason for Ms Johns not receiving a copy of the bundle, it is not surprising that she did not.[14]It is very clear to me that this case has prompted emotions to run high, not just for the parties themselves, but also their representatives. Proceedings in the Tribunal should be conducted properly and in accordance with the overriding objective. This case seems to be taking up a lot of judicial time when the Tribunals are very busy. The parties must comply with orders in a timely fashion.