Mr A Latif v Financial Conduct Authority: 3200291/2023

EMPLOYMENT TRIBUNALS

Case No 3200291/2023

Between

Mr A LatifClaimant

Financial Conduct AuthorityRespondent

Before

Employment Judge Park

In person for claimant

Ms J Shepherd (instructed by Counsel) for respondent

Date 8 August 2025

JUDGMENT

[1]The claimant’s claims that he was subjected to detriments on the ground of having made protected disclosures under section 47B Employment Rights Act 1996 are not well founded and are dismissed.

[2]The claimant’s claim for automatic unfair dismissal under sections 103A Employment Rights Act 1996) is not well founded and is dismissed.

[3]The claimant’s claim for unfair dismissal (ordinary unfair dismissal under section 94 Employment Rights Act 1996) is not well founded and is dismissed.

REASONS

[4]The claimant’s claims were: 4.1. he had been subjected to detriments on the ground that he had made a protected disclosure – section 47B Employment Rights Act 1996; 4.2. that he was automatically unfairly dismissed because the reason or principal reason for dismissal was that he had made a protected disclosure – section 103A Employment Rights Act 1996; and 4.3. ordinary unfair dismissal – section 98 Employment Rights Act 1996.

[5]A final list of issues had been agreed at a preliminary hearing held on 9 October 2023 and 22 January 2024. At the outset of this hearing the parties liaised and provided a summary of the following based on the agreed list of issues: 5.1. the disclosures the claimant says that he made that were protected disclosures which he relies on for the purpose of his claims; and 5.2. a list of the detriments the claimant says he was subjected. That summary list of issues is appended to this judgment. Within this judgment the disclosures and detriments are referred to by refence to the numbering in that summary list of issues.

[6]At the beginning of the hearing I raised with the claimant that the first detriment he said occurred (detriment 5, email dated 15 September 2020) predated the first disclosure he relied on (during a meeting on 25 September 2020). I explained that to succeed with a claim there must be a causal connection between the disclosure and detriment, so detriment 5 could not be caused by a detriment that occurred at a later date.

[7]The claimant indicated that he was relying on earlier disclosures for this detriment, referring to an email he had sent on 4 September 2020. He said that this in turn referred to in paragraph 3(c) of the list of disclosures and detriments. This would have been an amendment to the list of issues.

[8]I did not decide whether the amendment to the list of issues should be allowed during the course of the hearing as I wanted to have a better understanding of how the earlier email fitted with the later events. Having heard the evidence, and submissions from the parties, I have decided the case should be limited to the disclosures set out in the original list of issues. This means that the first disclosure the claimant can rely on is the one he says he made during his supervision meeting on 25 September 2020.

[9]I decided not to allow the claimant to rely on any earlier disclosure for the following reasons: 9.1. It was common ground between the parties that the in September 2020 the email the claimant sent on 4 September 2020 contained information about a serious issue that had arisen about the improper use of FOIA extensions. This formed the background to much of the case. 9.2. What the claimant said were subsequent disclosures were not about this initial wrongdoing. The subsequent disclosure, both those he says he made during supervisions and his formal whistleblowing complaint, were not about that underlying situation. These disclosures were about what the claimant said were subsequent failures by the respondent, and particularly his manager, in dealing with the consequences of the improper use of extensions. 9.3. The broad thrust of the claimant’s case was that he was subjected to detriments and then dismissed because he continued to raise concerns about how that underlying situation had been handled, rather than because he had initially flagged up what had happened. 9.4. Allowing the claimant at this late stage to also rely on the earlier disclosure would completely change the way his case had been presented and thus the case the respondent had to address. 9.5. I also noted that the claimant had been represented at previous preliminary hearings where the list of issues was finalised. This made it more likely that the omission of the earlier email as a disclosure had been deliberate rather than an oversight. Procedure, documents and evidence heard

[10]During the course of the case the claimant had been represented by solicitors and counsel, including at earlier hearings. For the final hearing the claimant represented himself. The respondent was represented at all stages.

[11]A paginated bundle of documents had been prepared. Both parties sought to rely on additional documents that were provided at the start of the hearing. I allowed both parties’ additional documents to be admitted. The respondent had no objection to the inclusion of the claimant’s additional documents, even though they doubted the relevance. The respondent’s additional documents included transcripts of two meetings between the claimant and his line manager which had been covertly recorded by the line manager. The claimant objected to the inclusion of these documents, due to the covert nature of the recording. I decided to allow the documents. The meetings were key incidents and there were no other notes made at the time. The documents were relevant to the issues I was required to determine, as during these meetings the claimant said that he had made disclosures and was also subject to detriments. Having allowed the transcripts I was also provided with the recordings, which at the request of the parties I listened to.

[12]The claimant had prepared a witness statement and was cross examined. The respondent called 15 witnesses who were cross examined. The respondent’s witnesses were Andy Cobbett, Lucy Selkirk, Kevin Basmadji, Sandra Paton, John Burnett, Nick Miller, Neil Whalley, Emma Bentley, Ian Alderton, Mike Conway, Anthony Monaghan, David Geale, Mark Francis, Dominic Cashman and Alison Lyndon-Parker.

[13]At the conclusion of the hearing both parties provided written submissions which were added to orally. Findings of Fact

Introduction

[14]The findings of fact I have made which are set out below are based on the issues identified in the appended list of disclosures and detriments and the claims relating to the dismissal. I carefully considered all the evidence provided, both documentary and witness evidence. A lack of reference to any particular document or something that was said by a witness does not mean it was not considered.

[15]This case relates to events that spanned several years. I heard evidence from the parties on certain factual aspects of the background which were disputed which do not form part of any specific claims that have been pursued by the claimant. I have limited my findings to those factual allegations that underlie the claimant’s various claims and other matters that are direct background and context to the specific claims being pursued.

[16]In reaching my conclusions on the facts the test I have applied is the balance of probabilities. This means that it is more likely than not that something occurred. In a whistleblowing case, the claimant has the burden of showing that he made the disclosures he relied on and that the factual allegations, which he says were detriments, actually occurred. If the claimant has not provided evidence in support of any particular factual allegation, i.e. a disclosure or an act or failure said to be a detriment, then he will not have proved it occurred.

[17]This is a case about whistleblowing. A key part of the findings I have had to make is whether the claimant made certain protected disclosures which he relies on. This involves ascertaining whether the claimant made any particular disclosure including identifying what he said, to whom and when. I have then applied the relevant tests to determine whether that amounted to a protected disclosure. What is not required, and I have not done, is to make any findings about any underlying alleged wrongdoing by any other person, unless such a finding is needed in order to determine any specific issue or claim.

Background

[18]The claimant started to work for the respondent in December 2019. He was appointed to the role of Manager of the Information Disclosure Team (“IDT”), following an interview in May 2019.

[19]The IDT team was responsible for processing requests made to the respondent under the Data Protection Act (“DPA”) and Freedom of Information Act (“FOIA”). The claimant’s manager was Andy Cobbett who was the Head of Department for Cyber and Information Resilience. Mr Cobbett’s manager was the Chief Operating Officer. At the time the claimant’s employment commenced this was Georgina Philippou.

[20]The previous permanent manager of the IDT had left in September 2018. One of the other team leaders then acted up into the manager role until the claimant was appointed. During this time the performance of the team had fallen and it was not meeting its targets. The main targets were based on complying with the statutory time frames for responding to DSAR and FOIA requests. It was expected that the targets would be met within 90% of cases.

[21]The claimant had a six month probationary period that was due to conclude in June 2020. On 11 May 2020 the claimant had a telephone call with Mr Cobbett. Mr Cobbett informed the claimant that he proposed to extend his probationary period by six months. This decision is not part of the case that I am determining. To the extent that it forms relevant background to the case I have made the following findings about the events leading up to Mr Cobbett’s decision: 21.1. The claimant’s relationship with Mr Cobbett appears to have been difficult from relatively soon after he started. The claimant says that on 20 January 2020 Mr Cobbett shouted at him during a team meeting. The claimant also says that on 2 March 2020 Mr Cobbett shouted at him in front of colleagues. In his evidence the claimant provided a relatively detailed account of both incidents. He also sent an email on 2 March 2020 after the second incident setting out concerns about how he perceived Mr Cobbett to have acted. Mr Cobbett did not recall either incident. 21.2. The claimant had been tasked with undertaking a review of the department, which was underperforming. He provided a report identifying the problems with the department. The claimant felt that the difficulties within the team were greater than he had been lead to believe during the recruitment process. I accepted this was probably the case. 21.3. I also accepted Mr Cobbett’s evidence that he had concerns about the claimant’s performance from relatively early on. Specifically, Mr Cobbett felt that the claimant was good at identifying the problems the team faced but he had concerns about the claimant’s ability to implement the changes that were needed. I was provided with several emails in which Mr Cobbett asked the claimant to provide more details about what he proposed to do to improve the performance of the team. There are also instances where Mr Cobbett flagged up that the claimant has not done certain things he was instructed to, such as implement PIPs for the team leaders. 21.4. The claimant was due to have regular reviews during his probation but these did not happen as intended. I accepted this was due to external circumstances. In March 2020 the pandemic and lockdown started. Mr Cobbett was also having to deal with a significant data breach that was discovered in February 2020. 21.5. A meeting did occur on 20 April 2020. The claimant has provided a relatively detailed account of this, recording the questions that Mr Cobbett asked, such as ‘how he was getting on’. During this meeting the claimant’s probation was mentioned. On 28 April 2020 Mr Cobbett followed up by sending a list of proposed objectives for the upcoming year.

[22]In May 2020 Mr Cobbett liaised with HR about extending the claimant’s probation. This was raised by Mr Cobbett in an email dated 11 May 2020. Mr Cobbett had a call with the claimant on 11 May 2020 to tell him of this decision. The claimant reacted badly to this conversation.

[23]I accepted that Mr Cobbett had genuine grounds for extending the claimant’s probation as he had genuine concerns about the claimant’s ability to fully carry out the role he had been recruited to do. There was clear evidence of Mr Cobbett having concerns in the preceding months. There may not have been regular probation reviews but Mr Cobbett had been telling the claimant what was required. By informing the claimant that his probation would be extended Mr Cobbett was communicating to the claimant he had concerns.

[24]The claimant reacted to this decision by writing to Mr Cobbett stating his unhappiness. He also wrote to Ms Philippou complaining about Mr Cobbett’s decision. In this email he was critical of Mr Cobbett and accused him of ‘weaponising probation’.

[25]Following these incidents mediation was set up between the claimant and Mr Cobbett. As a result of this process it was agreed the claimant’s probation would not formally be extended. From what I understood, this was essentially a compromise for pragmatic reasons. Kevin Basmadji, from the respondent’s HR department, facilitated the meditation. He explained that the claimant was informed as part of this process that any future underperformance could be addressed by performance management procedures.

[26]In summary, my conclusions on this period are as follows: 26.1. From Mr Cobbett’s perspective the claimant’s performance was not satisfactory from the outset. He had genuine concerns about the claimant’s ability to perform all aspects of his role and deliver what was required. These concerns were real and clearly articulated to others within the organisation at the time. 26.2. There were deficiencies in the probation process. This is understandable due to the situation at the time. However, Mr Cobbett did try to communicate to the claimant repeatedly what was required, including in the call in April 2020. There was nothing nefarious or improper about extending the claimant’s probation in these circumstances. 26.3. The claimant developed a very negative view of Mr Cobbett early on and their relationship was poor. It is possible that this was a personality clash, with neither being able to communicate effectively with each other. However, the consequence is that the relationship by the summer of 2020 was already problematic.

[27]After the mediation the claimant provided a paper setting out what he said was required for the team. By this point the claimant had started to raise the issue of needing additional people within the team. He communicated this to Mr Cobbett at the end of June, in the report he prepared.

[28]On 8 July 2020 the respondent’s Internal Audit department produced a final report on how FOIA requests were being dealt with. This audit had been going on for some time, predating the claimant’s employment. This made various recommendations. The claimant says these were ‘in tune’ with what he had found. FOIA extensions – discovery and reporting

[29]In August 2020 it emerged that the claimant’s team had been misapplying the process for applying extensions to responding to requests under the Freedom of Information Act. This came to light following a letter from the ICO. The claimant then investigated further and found that the practice was more widespread.

[30]On 4 September 2020 the claimant sent an email to Ms Philippou about this issue. Mr Cobbett was copied into the email. Mr Cobbett was on leave but due to return the following day.

[31]The claimant provided a summary of what the ICO had said and what had been highlighted in the recent audit report. He flagged up that there were implications on the reporting of the team’s performance, as the improper use of extensions made the team’s performance appear better than it was. The claimant set out what was being done to ensure that the issue was addressed and the practice did not continue.

[32]Ms Philippou acknowledged the email and corresponded with the claimant about the issue. One point she flagged up was the claimant’s suggestion that there may have been maladministration. She sought further information about this.

[33]Mr Cobbett also corresponded directly with Ms Philippou about the claimant’s email. On 8 Sept 2020 he sent an email to Ms Philippou indicating he was disappointed that the claimant had written directly to her rather than waiting until he had returned from leave and then discussing the matter with him first. In this email he indicates that he considered that the language the claimant had used was “alarmist”. He notes this type of language is something that had occurred before and had been discussed with the claimant. In this email Mr Cobbett also discusses the wider issues with the team, and his view that the claimant would use the situation to seek additional resource for the team. My reading of Mr Cobbett’s email is that extra resourcing is something that would be considered, as he concludes by noting that one question to be answered is what “additional resource is needed to tackle the backlog” and “what is the longer term resource level required”.

[34]On 15 September 2020 Mr Cobbett sent an email to Ms Philippou about an upcoming meeting. In this he queried whether the claimant should attend, referring to him potentially being a “loose cannon”. The claimant did attend the meeting. Mr Cobbett explained that he was referring to the fact that the claimant had escalated matters previously directly to Ms Philippou without discussing the matter with him first. I accepted this was his explanation.

[35]The claimant continued to correspond directly with Ms Philippou. He wrote to her on 16 September 2020 to provide further information on the extent to which extensions had been improperly used by the team. He also confirmed that he had discussed the issue with the CEO and legal team, as she had requested. Ms Philippou asked the claimant if he wished to be treated as a whistleblower and referred him to the relevant part of the handbook. On this point, I was not clear exactly what was meant by suggestion. I did not hear evidence from Ms Philippou who could have explained what she meant. The claimant responded on 28 September 2020 that he did not want to be viewed as a whistleblower at that time. Practically the implication of this seems to be that an investigation into what had occurred was undertaken by the respondent’s Risk and Compliance Oversight team rather than being referred to the Whistleblowing team.

[36]Within the claimant’s own team, action was taken to ensure that the practice of improper extensions was stopped. The FOI handbook was updated to make it clear how extensions worked and should be applied. Mr Cobbett also issued an instruction that all extensions were to be signed off by a manager. The emails I have seen from the time indicate that Mr Cobbett took a robust approach to address the issue. One-to-one supervision meetings – Sept 2020 – March 2021

[37]The claimant and Mr Cobbett had regular one-to-one supervision meetings. These were held approximately fortnightly. In late 2020 the claimant and Mr Cobbett were still working remotely so these were held by video or telephone. These meetings were informal so no notes were taken routinely.

[38]As part of his case the claimant relies on what occurred during most of these meetings that occurred between 25 September 2020 and 12 March 2021. He says that he made protected disclosures during these meetings. He also says that during those meetings he was subjected to various detriments. This included Mr Cobbett doing the following: 38.1. Acting in an angry, aggressive and bullying manner; 38.2. Said “things are not as good as they should be” and “I am not pleased”. 38.3. Asked the claimant questions in a hostile way and talked over the claimant an a loud voice and aggressive manner.

[39]The claimant provided no evidence about any of those meetings other than an account of some of what was said on 12 March 2021. In his witness evidence the claimant provided no accounts of anything he said to Mr Cobbett in any of those meetings. Neither has he provided any account of how Mr Cobbett acted.

[40]As noted, there are no minutes of the meetings. There is minimal other contemporaneous documentary evidence relating to those meeting. Mr Cobbett covertly recorded the meetings of 12 February 2021 and 12 March 2021 and I have seen the transcripts and heard the recordings. My findings on those meetings I have set out separately. I have been provided with a few other emails from that time period (September 2020 until March 2021) but they do not include anything that provides any indication of what was said in any of the other meetings.

[41]Without any evidence I cannot make any finding of what actually occurred during any meetings on the following dates: 41.1. 25 September 2020 41.2. 9 October 2020 41.3. 23 October 2020 41.4. 6 November 2020 41.5. 20 November 2020 41.6. 11 December 2020 41.7. 15 January 2021 41.8. 29 January 2021 41.9. 26 February 2021

[42]In October 2020 the claimant’s mid-year review occurred, and I was provided with documentary evidence about this. Mr Cobbett also provided his recollection of this in his evidence. The claimant did not provide an account in his own witness evidence. My findings on this process are summarised as follows: 42.1. The review took place in the beginning of October 2020. Both the claimant and Mr Cobbett prepared for this meeting. In an email dated 28 September 2020 the claimant said there had been a lack of support and he flagged up some of the wider issues in the team again. Mr Cobbett prepared a script setting out what he saw as positive and what need to improve. Within this he indicated that he felt that the claimant was “critiquing from a distance and not taking ownership for fixing these issues”. He said that he expected more improvement in the team by that point which had not happened. 42.2. Following the meeting Mr Cobbett wrote to the claimant with a summary. This included the objectives he was setting and his other comments, including the one about ‘critiquing from a distance’. Mr Cobbett also restated his comment that there was an expectation that there would be improvement in the team by then. During the review Mr Cobbett had offered to arrange for another manager to coach the claimant as a mentor. The claimant had refused this offer, but Mr Cobbett restated it in the email. 42.3. The claimant responded after he had updated his targets on PeopleHub. He noted he had a number of concerns. The claimant said that Mr Cobbett had ignored his comments and that Mr Cobbett had not listened and was dismissive. He described Mr Cobbett’s management style as regressive and having rigid expectations. He also raised concerns about resourcing of the team and the difficulty of making change when “there are so many factors outside the manager’s control and the team’s wellbeing cannot be compromised”. 42.4. Mr Cobbett raised concerns about this email with HR in an email dated 12 October 2020. Mr Cobbett indicated he expected the claimant to raise a grievance against him. He also flagged up the need for contingency plans in case either the claimant leaves or “team performance continues to drop to such a point that we are force [sic] to make an intervention”.

[43]Looking at these emails it is clear that the relationship between the claimant and Mr Cobbett, as an employee and manager, remained very poor. Their perspectives on the situation appear to be at complete odds with each other. Mr Cobbett viewed the claimant as underperforming, with similar concerns to those that had been raised earlier in the year when he wished to extend the claimant’s probation. Broadly he did not think the claimant was delivering what he needed to as a manager to improve the performance of the team. The claimant did not accept or take on board this feedback. On the contrary he viewed Mr Cobbett as fault and there were wider problems that prevented him from being able to succeed that Mr Cobbett would not address, such as the level of resourcing in the team.

[44]As noted, I cannot make any specific findings of what happened at any particular supervision meeting that the claimant relies on from September 2020 onwards due to the lack of evidence. From the other contemporaneous evidence referred to I have been able to infer that the informal supervision meetings were probably difficult. It seems likely that the issues that had been discussed during mediation were not resolved. It seems credible that Mr Cobbett did make comments about “things are not as good as they should be”, as that was Mr Cobbett’s view of the situation with the team and he was seeking to communicate this to the claimant. I cannot make any other findings beyond this because no clear account has been given. Specifically, I cannot make any findings about the manner or tone of any discussions, such as Mr Cobbett being hostile or aggressive, because I have no evidence on which I can based such findings.

[45]While I accept that the meetings were difficult, I have also concluded that it is unlikely there were any particularly notable or serious incidents. I have come to this conclusion because if anything of note had occurred I would expect the claimant to have set out a clear account of the incident, which he has not done. In reaching this conclusion I have relied on the fact that the claimant has given clear and consistent accounts of the two incidents that occurred in January and March 2020 and he also gave a more detailed account of some of the things said on 12 March 2021 (which are also documented). It is notable that the claimant has provided no such account of any such incidents in any of the meetings he relies on that occurred between September 2020 and February 2021 during which he says that Mr Cobbett was hostile or aggressive. The claimant has just made very generalised assertions.

[46]I also was not able to make any detailed findings of fact about what the claimant may have said to Mr Cobbett about particular problems, which he now says were protected disclosures, because the claimant has provided any account of what he says he said at any specific meetings. I accept it is likely that some of the wider issues, such as the extensions problem, resourcing levels and the implications were discussed. This would make sense given that they were issues the team had faced and the claimant was having to deal with these problems. However, I can reach no conclusions beyond that it is credible that these topics were touched on from time to time.

[47]On 1 February 2021 Mr Cobbett emailed the claimant following up on the mid-year review and asking to meet to review the objectives. The claimant responded on 2 February 2021. Within this email the claimant referred back to the concerns he had raised in his email of 9 October 2020 and he reiterated that he felt that Mr Cobbett was an unsupportive manger. On receiving this Mr Cobbett wrote to HR, forwarding the email, saying he wanted to move forward with a formal performance management process (“PIP”). Mr Cobbett viewed the claimant’s email as a personal attack. No further action in terms of implementing a PIP was taken at that point.

[48]I saw further emails between the claimant and Mr Cobbett from 11 and 12 February 2021. I also was provided with a transcript and recording of their one-to-one supervision meeting from 12 February 2021. In the emails the claimant complained about Mr Cobbett’s approach to discussing objectives.

[49]During the meeting on 12 February 2021 a number of matters were discussed. This included the outcomes of the audit and the IDT reset. The claimant raised concerns about the resourcing of the team again. Mr Cobbett discussed this with the claimant and asked for more clarity about what his ideal team would be, explaining that he needed this to be able to justify additional resource. From the transcript and recording I concluded there was nothing untoward about the conduct of either participant in this meeting.

[50]It is the claimant’s case that he made protected disclosures during this meeting. These are said to be of a type as listed at section 3 of the list of disclosures and detriments. The transcript and recording of 12 February 2021 indicate that the discussion the claimant and Mr Cobbett had was quite general in nature. There is nothing that could be understood as a disclosure of wrongdoing as set out in section 3 of the list of disclosures and detriments. The claimant accepted this in cross examination.

[51]By this point Ms Philippou had left and the role of COO was being undertaken by Nausicaa Delfas, who managed Mr Cobbett. On 22 February 2021 Mr Cobbett contacted with Ms Delfas about the claimant and his team’s performance. Mr Cobbett sent an email to Ms Delfas including draft wording for her to send to him that introduced the idea of “’path to green”. I understood this was preparation to put in place a plan that was intended to drive improvement in the team. Ms Delfas then wrote to Mr Cobbett on 22 February 2021 setting out what she required, using Mr Cobbett’s draft. Mr Cobbett forwarded this email to the claimant on 23 February 2021 saying this needed to be discussed so they could respond. I accepted that effectively Mr Cobbett put forward this proposal, but a plan was in place to make it appear that this was an instruction from Ms Delfas. I do not find anything untoward about this approach. It was a practical way of communicating that this instruction was endorsed by a more senior manager.

[52]A meeting was held on 23 February 2021 where this plan was discussed. Both Mr Cobbett and the claimant provided documents with their account of this meeting. The claimant provided a separate note. Mr Cobbett emailed his recollection to HR. These are not wholly dissimilar. Both indicates that the idea of a ‘path to green’ was discussed and Mr Cobbett asked the claimant to provide his idea for what this could entail. Mr Cobbett’s email indicates that the claimant raised the issue of the improper use of extensions affecting the historic performance figures. On 24 February 2021 Mr Cobbett wrote to the claimant setting out his suggestion about what could comprise the “path to green”. I did not see any evidence that the claimant provided his own version of this at any point. Whistleblowing 9 March 2021

[53]The claimant’s end of year performance review happened on 5 March 2021. I was provided with Mr Cobbett’s note of this meeting. The claimant did not provide any alternative account of this meeting, either by way of his own contemporaneous note or an account in his witness evidence. During cross examination the claimant appeared to be seeking to question the validity of Mr Cobbett’s record. I accepted it was a genuine record of the meeting, though I accept there was no evidence it was shared with the claimant at the time.

[54]During this meeting Mr Cobbett discussed with the claimant the perception that the team was underperforming. He also asked the claimant what personal development needs he had, to which the claimant said he had none. Mr Cobbett provided some specific feedback on points that were in the same vein as issues that had been raised before, such critiquing from a distance and not having a vision for change. Mr Cobbett stated to the claimant that his expectation was that the team performance would improve and the claimant should take accountability for this. The claimant said he fundamentally disagreed with the feedback Mr Cobbett gave. He also reiterated concerns about lack of resource and lack of support.

[55]Mr Cobbett sent an email to the claimant at 3.18pm on 9 March 2021 following on from this discussion. This email included the monthly targets that were being set for the claimant’s team.

[56]Later that day, at 9.03pm, the claimant sent an email to the respondent’s internal confidential whistleblowing inbox. He started this email by stating “I am a whistleblower”. He then set out his concerns. These fell into three categories: 56.1. Mr Cobbett had been deliberately misleading the respondent “with regard to the position, performance and priorities of the IDT service”. 56.2. Mr Cobbett “is endangering the health and safety of staff within the IDT team”. 56.3. Mr Cobbett was “engaging in conduct that is harming or is likely to harm the reputation of the [respondent]”.

[57]The claimant then set out more detail of what he said had occurred that fell within these categories of allegations of wrongdoing. The respondent accepts that this email amounted to a protected disclosure.

[58]The claimant referred in the email to the issue of the improper use of extensions but this was not the subject of the email. The claimant does not ask the whistleblowing team to look into that specific issue, that is just the background. The claimant’s concerns are about the conduct of Mr Cobbett, his management of the team, resourcing concerns, and the practical implications of the improper extensions. Specifically, the claimant notes that as a result of the extensions being applied the actual performance of the team has been wrongly reported historically. The broad thrust of the claimant’s complaint is that the respondent cannot comply with its obligations under FOIA and relating to DSARs due to management issues. The breach of FOIA in relation to improper extensions is just background to the complaint to the whistleblowing team and not the substance of the complaint.

[59]On 11 March 2021 the claimant responded to Mr Cobbett’s email of 9 March 2021. In this email he criticised the targets Mr Cobbett had suggested and reiterated his concerns about staffing levels. He did not say anything about his whistleblowing complaint. The indication from this email is that the claimant was not willing to implement targets within the team in line with Mr Cobbett’s request. Meeting on 12 March 2021

[60]On 12 March 2021 the claimant attended a further one-to-one supervision with Mr Cobbett. This was recorded by Mr Cobbett and I have seen the transcript and heard the recording. The claimant also made his own note of this meeting and provided witness evidence of this meeting.

[61]Mr Cobbett started the meeting by saying he wanted to “clear the air and develop a better working relationship”. The claimant indicated he was willing to do this. The subjects discussed in the meeting were broadly similar to those referred to previously, such as resourcing levels, with Mr Cobbett saying that resources had been provided and the claimant saying the team was too stretched and the problems in the team were more serious than Mr Cobbett appreciated.

[62]In this meeting the claimant also expressly stated the team was “effectively operating illegally, you can see what was going on potentially negligent”. Mr Cobbett responded by saying “Right, be careful, because you are using it in really big words”.

[63]The key allegation the claimant has made is that when he raised issues Mr Cobbett said to him to “be careful” in a way that was threatening and then said to “just be careful” in a slow and deliberate manner. The implication is that Mr Cobbett was in some way threatened the claimant. Having heard the recording of this meeting I have concluded this was not the case. The recording indicates a discussion about difficult issues where the claimant and Mr Cobbett have different views on where the team is and what is required. There is nothing about the way Mr Cobbett spoke to the claimant that could be viewed as threatening.

[64]During this meeting the claimant raises the fact that extensions had been used inappropriately in the past. Otherwise, the discussions are very general in nature, touching on about matters such as resourcing. The claimant does not make specific allegations of wrongdoing by Mr Cobbett during this meeting. Whistleblowing process

[65]The respondent has a whistleblowing policy. This sets out what whistleblowing is, when the policy can be used and how it works in practice. It makes clear that the purpose of the whistleblowing policy is to enable employees to raise what are described as “reportable concerns”. The policy lists types of reportable concerns which roughly reflects the statutory scheme, but also includes wider matters such as breaches of the respondent’s internal policies and procedures. The policy makes it clear that complaints about an individual’s own employment should be raised under the grievance procedure.

[66]The whistleblowing policy gives three options for raising a reportable concern. This can be to an individual’s line manager, the email address the claimant used, or directly to the Director of Internal Audit. There is an alternative option of raising matters with the Chair of the Audit Committee, who also has the title “the Whistleblowers’ Champion”. The policy states this can be done if the individual feels unable to use one of the other options or if they feel the person they have raised the whistleblowing to has not dealt with the matter appropriately. The policy makes it clear “The Champion does not have a day-to-day operational role in handling disclosures from whistleblowers, but you can contact them as a last resort.”

[67]Within the policy it is clear that someone who raises concerns under the whistleblowing policy will not have their identify revealed without consent.

[68]The policy sets out what will happen after raising a reportable concern. The key points that are relevant for this case are as follows: 68.1. The complaint will be acknowledged and usually there will be a meeting to discuss the concern. 68.2. Internal Audit will investigate but an external party may also be appointed to do this. 68.3. The purpose of the investigation is to “establish whether something has gone wrong and, if it has, how the situation can be rectified. They may also make recommendations for change to enable us to minimise the risk of recurrence.” 68.4. The individual will be kept informed of progress and usually informed of the outcome. This may not always happen. There are no timescales set out. Neither are there any definite commitments about what will happen.

[69]On 11 March 2021 the respondent’s internal whistleblowing team sent the claimant an email acknowledging his email of 9 March 2021. They sought to arrange a call between the claimant and Neil Whalley, the head of the Internal Audit Division.

[70]The claimant attended a meeting on 16 March 2021 with Mr Whalley at which he was able to go through his concerns. On 25 March 2021 the claimant followed up by email to Mr Whalley saying the situation was getting worse. Both the email and notes of the meeting indicate that the main points the claimant was raising were about the management of the team and the risks to the team.

[71]Mr Whalley wrote to the claimant on 30 March 2021 to say that they were considering the information and “exploring how best to approach the concerns” he had raised. Mr Whalley indicated they would be in touch once they had decided on the appropriate steps to take. Mr Whalley also informed the claimant that they would meet with Ms Delfas, the COO, to provide a summary of the concerns he had raised and what they would be doing.

[72]The claimant attended a further meeting with Emma Bentley and Joel Scott, other members of the Internal Audit team, on 29 April 2021. Ms Bentley and Mr Scott confirmed that the claimant’s anonymity would be protected but advised the claimant that people may make assumptions as an investigation proceeded. I accepted that at this point no one else other than those in Internal Audit knew about the claimant’s complaint. Mr Scott explained the scope of what they would be looking at. This would be about mis-reporting of performance, health and safety of the team and whether controls to meet statutory compliance were inadequate. They would not consider complaints by the claimant about how he personally had been treated by Mr Cobbett.

[73]During this meeting the claimant was again able to explain in some more detail his concerns. There was discussion about additional information that the claimant would share with Internal Audit. Mr Scott informed the claimant that the feedback that would be provided to him may be limited.

[74]The same day Ms Bentley and Mr Scott met with Ms Delfas. They informed her of the key points that had been raised. The claimant’s identity was not disclosed.

[75]To summarise, the Internal Audit met with the claimant, discussed his complaints and advised him that they would decide how to proceed. They informed the claimant they would try to update him but feedback may be limited. No one was informed that the claimant had made the complaint. Ms Delfas was informed just there had a complaint raised to Internal Audit via the whistleblowing process. There was no indication the claimant informed anyone else of the whistleblowing complaint at this point either. Performance Improvement Plan (“PIP”)

[76]Mr Cobbett continued to have concerns about the claimant’s performance after the end of year review and subsequent emails. He liaised by email with HR about this. The issues Mr Cobbett raised remained similar and he was also concerned about the claimant’s refusal to set targets for his team or otherwise take steps to manage their performance. Around this time, John Bennett, who had been running an IDT reset program under the management of Mr Cobbett, was also expressing frustration about the claimant. I saw a number of emails that corroborate Mr Bennett’s concerns and I also heard witness evidence from Mr Bennett confirming the same.

[77]On 6 May 2021 Mr Cobbett sent draft objectives for the following year to the claimant. The claimant acknowledged these and responded by sending his comments. Mr Cobbett has said that he had prepared the objectives and reviewed them with HR and then discussed them with the claimant. Mr Cobbett said that the claimant then changed aspects of the objectives on the HR system, such as the timeframes for delivery. On 27 May 2021 Mr Cobbett flagged this up with HR, but I saw no evidence of this having been raised directly with the claimant.

[78]During this period Mr Cobbett worked with HR to instigate a PIP. This process seemed to take a while and happened alongside other day to day management. Mr Cobbett drafted a performance gap analysis to use as the basis of the PIP. He then liaised with HR to prepare the start of the PIP process. This included drafting a script to use at the meeting.

[79]On 10 June 2021 the claimant attended a meeting with Mr Cobbett. Mr Cobbett was accompanied by Hina Mehta from HR. At this meeting Mr Cobbett informed the claimant he was being put on a PIP. He followed the script which set out concerns in broad terms. These reflected the issues that Mr Cobbett had been trying raising with the claimant previously. This included the claimant taking accountability for his team, the need for signs of improvement and the lack of clear targets or a plan for improvement by the claimant. The claimant was advised that a meeting would be arranged the following week to discuss the substance of the PIP in more detail.

[80]As part of his claim the claimant has alleged that the PIP was unfair and Mr Cobbett “deliberately falsified and misrepresent certain targets for the PIP”. I am satisfied that the PIP was genuine. I also cannot see any evidence of misrepresenting or falsifying targets. By June 2021 Mr Cobbett had been having concerns about the claimant’s performance for a year. The concerns raised were consistent and had been discussed informally with the claimant many times, albeit the claimant appears not to have taken this feedback on board. The position regarding the targets is a bit unclear, but the claimant has not clearly set what he says Mr Cobbett misrepresented. On the contrary, there is evidence from the time that the claimant altered his own targets on the HR system following the review in May.

[81]The same day, 10 June 2021, the claimant wrote to Mr Whalley, Mr Scott and Ms Bentley in Internal Audit. In this email he said that he was being subjected to a detriment as a whistleblower. This was about the decision to implement a PIP. The email was acknowledged by Mr Scott.

[82]On 14 June 2021 Mr Scott sent a longer email providing a general update. He confirmed that no one had been contacted within the claimant’s team or Mr Cobbett’s wider team so as far as they were aware no one knew of the claimant’s complaint, so they could see no connection between the two events. He also advised that complaints by the claimant about treatment by his line manager were separate from the whistleblowing so he should use the relevant HR process if he wished to make a complaint.

[83]The claimant responded by confirming that he was not saying that the Whistleblowing team had broken confidence but he thought “what seems to be the position is that Andy Cobbett has taken a view that I am likely making disclosures regarding various allegations about his wrongdoing.” The claimant says this is based on evidence, but no evidence was provided during this case to support this assertion. It appears purely speculative. There was no evidence that Mr Cobbett was aware of the whistleblowing or any evidence to suggest he may have believed it was a possibility. Mr Cobbett had expressed concerns the previous year that the claimant may raise a grievance. At this point the claimant had not raised any grievance against Mr Cobbett.

[84]The claimant was due to attend a meeting on 16 June 2021 with Mr Cobbett. Shortly before the meeting the claimant emailed to say that he was unable to attend. He asked that Mr Cobbett have regard to the relevant procedures in the employee handbook.

[85]On 16 June 2021 the claimant raised a grievance against Mr Cobbett. He complained that Mr Cobbett had been discriminating against him and bullying him. He complained about Mr Cobbett’s behaviour in general, such as being aggressive or talking over him. Within the grievance the claimant referred back to Mr Cobbett’s decision the previous year to extend the claimant’s probation. It is notable that the claimant does not refer to his whistleblowing complaint in the grievance or suggest that he is being subjected to any detriment because of this, despite having already suggested this was the case to the whistleblowing team.

[86]Mr Cobbett sent a further invitation for a meeting on 17 June 2021. He clarified that the formal part of the performance management procedure had not started so formal notice requirements were not required. He also clarified what would be discussed at the meeting. The claimant declined the meeting request.

[87]On 17 June 2021 the claimant sent an email to Mr Cobbett and Ms Mehta complaining about the PIP. He said that the approach was “duplicitous”, in terms of the nature of the meetings and whether they were formal or informal. He indicated he was unwilling to attend any meetings, citing his own workload, and he suggested it would be improper for HR to be involved.

[88]As the claimant did not attend the meetings that had been arranged the PIP did not progress at that point.

[89]On 13 July 2021 the claimant attended a further meeting with Mr Whalley and Ms Bennet to discuss the formal whistleblowing. They informed the claimant that an Internal Audit review would be undertaken. There is no indication that the claimant objected to this approach at the time. He sent a follow up email on 15 July in which he said “it was good to hear that a number of processes are being put in place.” He also provided an update on his grievance and forwarded a copy of his email dated 17 June to Mr Cobbett and Ms Mehta complaining about the PIP.

[90]During July 2021 Mr Cobbett liaised with Mike Conway, the respondent’s Employee Relations Manager, on progressing the PIP. On 13 July 2021 Lucy Selkirk took over responsibility for providing HR support to Mr Cobbett with the process.

[91]On 29 July 2021 Mr Cobbett wrote to the claimant advising him the regular one-to-one meeting the following day would be ‘repurposed’ to implement the PIP. Mr Cobbett attached the PIP document to the email. He advised that this would be an 8 week process with a formal meeting at the end. He asked that the claimant fully engage with the process.

[92]The claimant responded with a lengthy email saying he had serious concerns that needed to be addressed given Mr Cobbett’s “recent and previous improper conduct”. He noted that he had raised a grievance about Mr Cobbett and also referred to the whistleblowing allegations. The claimant said in the email that Mr Cobbett was aware of both of these. Mr Cobbett has said in evidence that the first time he became aware of the formal whistleblowing was that email. I accepted this was the case. The claimant had not told Mr Cobbett about the whistleblowing complaint. There was no evidence the claimant had told anyone other than Internal Audit about his whistleblowing complaint. There is no reference by the claimant to him having made the complaint in any correspondence before 29 July 2021. The whistleblowing team had also reassured the claimant that it had been kept confidential. They had given a high level summary to Ms Delfas, but not named the claimant. At this point no investigation had been started so nothing else had occurred, such as an investigation meeting, from which Mr Cobbett could have inferred that the claimant may have made a whistleblowing complaint.

[93]In the email of 29 July 2021 the claimant repeated the same complaints about the PIP being improper and handled contrary to procedures. He also complained about the process being “weaponised”. The claimant declined to attend the next meeting.

[94]Initially Mr Cobbett responded to reiterate that the PIP would start in any event and end with a review on 24 September 2021. On 3 August 2021 the claimant responded stating Mr Cobbett’s actions did not constitute a valid PIP. He referred again to the whistleblowing complaints and said he was being victimised and said he would not meet with Mr Cobbett. Following this email Mr Cobbett’s involvement with the PIP ceased. Sandra Paton, another manager of the same level, took over management of the process.

[95]Ms Paton wrote to the claimant on 9 August 2021 to advise of this and she invited him to a meeting. Early in the morning of 13 August 2021 the claimant sent Ms Paton a lengthy email setting out his views on the flaws in the process. He insisted there was no evidence of underperformance.

[96]I note at this point that I have been provided with some emails also dated 13 August 2021 between Ms Paton, Mr Conway and Mr Cobbett. The claimant relies on these as evidence. These emails are relatively informal in tone, but not particularly untoward. The email from Mr Conway effectively provides a script of what to say, which is the usual sort of support HR may provide. It summarises briefly the key points that had been raised consistently, i.e. that there had been longstanding concerns about the claimant’s performance.

[97]The claimant met with Ms Paton on 17 August 2021. The claimant was accompanied to this meeting by a representative. According to the claimant Ms Paton made comments in this meeting that he perceives as derogatory, including a comment that he was “not as good as he thinks he is”. It is possible that a comment along these lines was said, but I have concluded it is of little significance. What is relevant is that Ms Paton took over the process and sought to progress the PIP. She also discussed what would happen with the claimant.

[98]After this meeting Ms Paton reviewed the PIP and to some extent she rewrote it. She explained that she felt some targets needed more focus or to be broken down further to be achievable. She also reset the timescales.

[99]On 20 August 2021 the claimant sent Ms Paton his comments on the revised PIP. These were numerous and essentially objected to the instigation of the PIP as a whole, saying there was no evidence of underperformance.

[100]Ms Paton sought to arrange a further meeting with the claimant on 25 August 2021 to discuss the PIP and his comments. In advance of this she wrote to the claimant summarising the key concerns and providing evidence of the concerns that had been provided to her by HR. The claimant responded by refusing to attend the meeting, saying it would not be helpful. Again, the claimant provided further comments disputing aspects of the PIP.

[101]The claimant continued to correspond with Ms Paton by email in late August and September 2021. Ms Paton tried to arrange further meetings in September 2021, but none of these took place. The claimant continued to make similar points about his view of the PIP itself. The claimant’s emails are often confrontational in tone, frequently making allegations of misconduct by Mr Cobbett and refusing point-blank to acknowledge that there were any concerns about his performance. He also started to allege bias by Ms Paton. The correspondence I have seen indicates that Ms Paton tried to engage with the some of the claimant’s concerns. For example, in her email of 9 September 2021 she updated the timescales to take into account other developments.

[102]A meeting eventually took place on 6 October 2021. Ms Selkirk accompanied Ms Paton and I was provided with her notes of this meeting. These indicated that the claimant raised his whistleblowing in this meeting. Ms Paton acknowledged this but informed the claimant she did not know about this process which was separate from the PIP.

[103]On 19 October 2021 Ms Paton wrote to the claimant with the outcome of the PIP. She set out a brief account of what had occurred since she took over, including the fact the claimant only attended 2 meetings despite more being arranged. She stated that the claimant had not engaged with the process and it had concluded without the claimant’s involvement. As a result she had limited evidence to assess any progress the claimant had made and therefore the claimant had failed the process. The claimant responded to this with similar objections to the process as he had made previously.

[104]Due to subsequent events the next stage of the PIP process did not take place. Grievances, ongoing whistleblowing procedures and concerns raised with senior stakeholders

[105]The claimant’s first grievance was raised on 16 June 2021. The claimant attended a grievance meeting on 21 July 2021. This was chaired by Nick Miller. Mr Miller went through the claimant’s grievance and asked for clarification on some points. The claimant was able to set out in detail what he said had happened and what his complaints were.

[106]The following day the claimant wrote to Mr Miller with further information and he provided some documents for him to consider. The claimant wrote again on 28 July 2021 with more information.

[107]The claimant did not raise with Mr Miller at any point the fact he had made a whistleblowing complaint in March 2021. It was not referred to within the original grievance, the minutes of the meeting or any of the claimant’s subsequent emails. The claimant has not said in evidence either that he informed Mr Miller of his whistleblowing complaint.

[108]On 30 July 2021 the claimant sent an email to various members of the respondent’s board, including Liam Coleman, the respondent’s Whistleblowing Champion. He started by saying he was being victimised by his line manager and indicated this was due to him being a whistleblower. The email then set out similar complaints to his grievance about Mr Cobbett.

[109]On 17 August 2021 the claimant followed up this email. On 19 August 2021 Jamuna Murphy, the Private Secretary to the CEO, acknowledged the email and apologised for the delay in responding. She said “I understand that you’re going through a formal process with HR, so it wouldn’t be appropriate to comment or respond in full to you at this time.”

[110]The claimant sent another email to the board on 25 August 2021 repeating similar complaints and saying he was being victimised as a whistleblower.

[111]On 25 August 2021 the claimant also raised similar concerns directly with Neil Whalley. Mr Whalley responded by reiterating that concerns about how the claimant was being treated by his manager needed to be raised via the grievance process. On 31 August 2021 the claimant responded to Mr Whalley to complain that it was almost six months since he made his complaints and the situation he had concerns about was worsening.

[112]On 27 August 2021 the claimant raised a second grievance. This related to the PIP and was against both Mr Cobbett and Ms Paton.

[113]On 1 September 2021 the Andy Cobbett attended a grievance investigation meeting with Nick Miller. At this meeting Mr Miller spent time going through Mr Cobbett’s experience with the claimant. This included the ways in which Mr Cobbett had tried to manage his performance over the previous year or so. He also described how he felt that he had to walk on eggshells with the claimant and had felt attacked by the claimant over the time he had managed him.

[114]On 7 September 2021 the claimant sent a further email to the board. This reiterated similar points that had been raised previously. He also said he would need to raise his concerns externally.

[115]On 8 September 2021 Mr Miller wrote to the claimant with the outcome of the grievance. Mr Miller found that there had been a breakdown in the relations between the claimant and Mr Cobbett. However, he did not uphold the claimant’s allegations of bullying. He did not make any specific recommendations about what should be done to repair the working relationship between the claimant and Mr Cobbett.

[116]On 10 September 2021 the claimant appealed against the grievance outcome. He said the outcome was unreasonable and Mr Miller had not properly considered all the evidence. The claimant also raised further complaints. He alleged that Mr Cobbett had behaved fraudulently in respect of the PIP process.

[117]On 14 September 2021 Neil Whalley wrote to the claimant with an update on the whistleblowing process. He advised that they were going to include a review of FOIA processes in the audit plan. This would start soon. In the meantime there would be no further action, so not to pre-judge the outcome of the review. The claimant responded, informing Mr Whalley his grievance had not been upheld.

[118]On 30 September 2021 the claimant sent another email to the board. In this he said he had contacted an external department about his whistleblowing. He also set out his position that he had made various disclosures and as a result he had been subject to bullying and “my line manager has manufactured a case of underperformance”.

[119]The investigation into the claimant’s second grievance started in early October 2023. This had been delayed due to a change in the investigating officer. Initially the claimant had been informed on 22 September 2021 that Maggie Craig would be undertaking the investigation and a meeting would be held on 7 October 2021. Mario Theodosiou took over the investigation and a new meeting was arranged on 13 October 2021. On 13 October 2021 Mr Theodosiou interviewed Ms Paton. Ms Paton subsequently sent Mr Theodosiou some additional information. The grievance was not concluded at that point as subsequent events intervened. Suspension and disciplinary process

[120]In around September 2021 the respondent started an investigation into a leak of information. The investigation was known as Project Stone. It involved a review of emails being sent to personal email accounts over the course from June 2021 onwards. I understood this was an organisation wide review.

[121]The respondent has a policy called the “Information and Systems Acceptable Use Policy” (“ISAUP”). This policy states that its purpose is to “reduce the risk of the loss or compromise of our information”. The policy sets out in detail what employees should and should not do when handling the respondent’s information and data. This was relied on by the respondent during the Project Stone investigation and subsequent disciplinary processes. Under a section headed “You must not” it says “send any FCA/PSR information to your personal email address” and “upload FCA/PSR data to any unapproved third-party repository or internet site”.

[122]The policy includes the following in relation to non-compliance: “Non-compliance with the policy without prior authorisation (breech) may result in formal action under the FCA’s Disciplinary Procedure. The FCA/PSR may also ask for your consent to examine your personal mobile device(s) under any such action, where there is a suspected breach of this policy.”

[123]Due to his role, Mr Cobbett was responsible for much of the initial stages of Project Stone. Mr Cobbett explained in his evidence how he had gone through the data, gradually excluding individuals until he had a list of people who had sent a certain amount of emails or data externally after June 2021. He identified the claimant as an individual who had sent a significant amount of data to his personal email account. Due to the ongoing grievance Mr Cobbett informed his line manager, Ian Alderton, and he recused himself from any further involvement. I accepted this as a genuine account of what had occurred.

[124]The investigation was then taken over by the Risk and Compliance Oversight team who further reviewed the accounts who had send a significant number of emails externally. They were categorised as being green, amber or red, based on the likelihood of risk. Red was the highest risk and indicated that sensitive material may have been shared based on the subject line of the email. The claimant was one of the 3 individuals placed in the red category.

[125]On 21 October 2021 the claimant was suspended pending an investigation into allegations he had downloaded information into his personal email account. Ian Alderton informed the claimant of this by telephone. During this meeting Mr Alderton asked the claimant to cooperate with the return of FCA devices from his home, such as his laptop. Mr Alderton said that a team would arrive at his home to collect them shortly.

[126]The claimant has alleged that Mr Alderton also said that the team would stay there and search his personal devices. This was denied by Mr Alderton.

[127]The notes of the meeting only refer to retrieving FCA equipment. The claimant was also told that he would be sent an undertaking to sign confirming he had destroyed all the respondent’s data he held. Subsequent correspondence was broadly the same. There is some ambiguity in some parts of the follow up letter, which could be read as requiring the claimant to provide access but this is to FCA devices, not personal devices. Overall, Mr Alderton was seeking the claimant’s cooperation to secure the respondent’s data. This did not include informing the claimant that the respondent’s team would search his personal devices.

[128]The notes indicate that the claimant was reluctant to cooperate, saying he needed to take advice. He did not confirm he would cooperate. He did refer to himself being a whistleblower, and that he believed “it’s not prohibited to obtain the information you’re saying I’ve obtained from FCA systems.”

[129]The claimant says that after this Mr Cobbett called a meeting with the department and told all the claimant’s colleagues he had been suspended. In his evidence the claimant says he saw an email from Mr Cobbett to the team calling a meeting. That email has not been provided. In his evidence the claimant just says he realised that the meeting was to tell the team about the suspension. The claimant had no evidence in support of this, it appears pure speculation on his behalf about what may have happened at a meeting he did not attend. The claimant’s absence would need to have been communicated but there was no basis to conclude that Mr Cobbett would have said anything more than this.

[130]On 26 October 2021 Mr Alderton sent the claimant a formal letter seeking written undertakings relating to the data he had on his personal devices. This letter included details of 4 documents that had been attached to emails which contained confidential information. At the end of the letter was a warning of potential legal action if the claimant did not comply.

[131]The Risk and Compliance Oversight team put together a report into the claimant as part of Project Stone. The claimant was referred to as ‘Individual A’. This was finalised on 27 October 2021 and formed the starting point for the investigation that followed. This report summarised the findings about the emails the claimant had sent to his personal account from 1 June 2021. They had found the claimant sent 458 emails externally of which the majority were to his personal email address.

[132]The emails sent had been reviewed and filtered, removing those where the subject matters appeared to be of less concern, such as clearly personal matters. 103 emails remained as being of potential concern. They were reviewed and of those there were 13 that were of definite concern. The details of these were listed in the report, along with potential risks.

[133]Anthony Monaghan was appointed to investigate allegations that the claimant had breached confidentiality by forwarding these emails to himself. He wrote to the claimant on 15 November 2021 inviting him to an investigation meeting on 18 November 2021. The invitation letter included a list of emails that the claimant had sent to his personal email account and other documents that would be discussed as part of the investigation.

[134]The letter also informed the claimant that two other allegations were being investigated. The second allegation related to failures to accurately record annual leave. The third was that the claimant failed to follow reasonable management instructions relating to the claimant’s non-engagement with the PIP process.

[135]On 16 November 2021 the claimant wrote to Nicola Wilkes, from the respondent’s Employee Relations Team, to say he wanted to attend but needed to arrange a companion. In this email the claimant said “I do in any case intend to pursue the Whistleblowing and detriment issues In due course”. The following day the claimant wrote again to say he hadn’t been able to arrange a companion and he asked to rearrange with more notice. In this email he said that the allegations being investigated were “examples of the detriment I have been subjected to” and he referred to “my legal actions in the near future.”

[136]Mr Monaghan continued with other aspects of the investigation and interviewed Mr Cobbett and Ms Paton on 18 November 2021.

[137]Mr Monaghan also started to correspond directly with the claimant about the investigation. The claimant raised a number of his concerns about the process. This included what he saw as short notice for the investigation meetings. He also sent a number of lengthy emails including assertions about what he saw as failings by the respondent within earlier processes he had been involved. These allegations included the respondent’s engagement being “oppressive”, being “dismissive of essential legislation” and “the lack of a diligent, considered approach”. He reiterated on multiple occasions being a whistleblower and that he said he had been subjected to detriments because of this.

[138]The claimant was due to attend a rescheduled investigation meeting on 23 November 2021. This did not go ahead because the claimant was unwell. In his email advising Mr Monaghan of this he said “I do feel strongly about how I have been treated as a Whistleblower and I intend to take my case forward”.

[139]Mr Monaghan replied to say that he would reschedule for 29 November 2021 at 9.30am. The claimant did not attend the meeting on 29 November 2021. He says this is because he only received the invitation to join the meeting remotely at 9.30am on 29 November and, having not received confirmation earlier, he did not believe it was going ahead. Mr Monaghan wrote to the claimant the same day saying he would not arrange a further meeting. He asked the claimant to provide written submissions by the end of 30 November 2021. The claimant responded to say this was further bias against him because he was a whistleblower and complaining about insufficient time being given. Mr Monaghan extended the time to provide written representations to later that week.

[140]On 3 December 2021 the claimant sent to Mr Monaghan his written representations on the allegations that were being investigated. This email is lengthy. The main points I have noted are: 140.1. The matters being investigated follow on from his formal whistleblowing that he had made in March 2021. 140.2. He did not dispute downloading any documents but said that it was all linked to his whistleblowing and the detriments he said he experienced as a result. He said that he felt he needed to retain the documents to evidence what he said had been saying. 140.3. He did not provide any explanations of how any of the individual emails that had been highlighted in the letter of 15 November 2021 were connected to his whistleblowing in March 2021. His comments about having sent himself emails for this reason are very general in nature. 140.4. The majority of the representations related to the PIP process, which the claimant continued to maintain was improper and flawed.

[141]Mr Monaghan completed his investigation shortly after and wrote up his findings in a report dated 6 December 2021. Mr Monaghan found there was a disciplinary case to answer in respect of all three of the allegations. In the report Mr Monaghan set out the documents he had looked at and explained his conclusions in some detail.

[142]In the report Mr Monaghan referenced the claimant’s written representations about his whistleblowing explaining why he had sent various documents to himself. He then reviewed 12 emails which had been flagged as being of particular concern, in terms of the level of sensitivity or confidentiality of the information that was included. In evidence Mr Monaghan explained his approach. He said he had no prior knowledge of any whistleblowing other than what the claimant had told him. He concluded that all 12 emails were in breach of the relevant policies but 8 of them may relate to the claimant’s disclosures. Therefore, he could not conclude whether or not it may have been misconduct for the claimant to send that particular information to himself. The other four emails contained sensitive information and he could identify no reason why the claimant would send it to himself. Therefore, there was a case to answer in relation to sending those emails.

[143]I found Mr Monaghan’s explanation during his witness evidence of his approach to the investigation, and particularly the emails, clear and thorough. He had engaged with what the claimant said about his whistleblowing and where the position was not clear he had given the claimant the benefit of the doubt.

[144]Mr Monaghan recommended that a disciplinary hearing should be arranged to consider his findings. The respondent appointed David Geale to conduct the hearing. On 9 December 2021 Ms Wilkes wrote to the claimant inviting him to a disciplinary hearing on 16 December 2021. The investigation report was enclosed.

[145]The claimant responded on 13 December 2021 asking for copies of 2 procedures and an update on his data subject access request, which he had made at the end of October 2021. He then set out a lengthy commentary on what he saw as shortcomings in the investigation and repeating many of the same complaints he had made over the preceding months about Mr Cobbett and the PIP process.

[146]The claimant was signed off work with stress on 15 December 2021. As a result, the disciplinary hearing scheduled for 16 December 2021 did not go ahead. Events of 2022

[147]The claimant remained signed off work for the first half of 2022, so the disciplinary process was put on hold. The claimant’s second grievance and appeal against the outcome of the first grievance were still ongoing at the time. These also were effectively put on hold.

[148]On 6 February 2022 the claimant wrote to Mr Whalley. He explained what had happened with the suspension and investigation, setting out his position that these were further detriments. He asked for an update on 14 February 2022 and for details of the members of the Audit Committee. On 16 February 2022 Mr Whalley wrote to the claimant with an update on the formal whistleblowing process. In respect of the claimant’s complaints about detriments, he reiterated similar points to those that he had made before about the internal grievances being separate.

[149]The claimant remained signed off work. He was reviewed by Occupational Health in March 2022. At that point they advised the claimant was not fit to engage with the disciplinary process.

[150]Occupational Health reviewed the claimant again in April 2022. Occupational Health advised that the claimant was improving, having had counselling. They advised that the claimant would be fit to proceed with the disciplinary process In a few weeks. They also indicated that the claimant had suggested he may decide to engage via written submissions rather than in person.

[151]Ms Wilkes wrote to the claimant on 24 May 2022. Her email indicated that it had been agreed the claimant would provide written representations. She sent the claimant questions to answer. A response was required by 31 May 2022. These related to both the disciplinary process and the ongoing second grievance and appeal against the outcome of the first grievance.

[152]On 22 August 2022 Mike Conway wrote to the claimant. By this point the claimant was no longer signed off work but he was still suspended. Mr Conway informed the claimant that the disciplinary hearing would be arranged in due course. At some point the claimant made a data subject access request. He had confirmed the scope of this in June 2022. In his email of 22 August 2022 Mr Conway had also referred to this and that arrangements would be made for the claimant to access some of this data by attending site in person.

[153]The claimant responded the same day with a lengthy email. He objected to the disciplinary being held before his second grievance and grievance appeal had been heard. He also reiterated a number of the same matters he had raised before about the conduct of Mr Cobbett and others. There followed further correspondence between the claimant and Mr Conway. The claimant insisted that his grievances must be dealt with first. Mr Conway responded to reiterate that the disciplinary would be dealt with first.

[154]On 29 August 2022 the claimant wrote a lengthy email to the respondent’s data protection team, complaining that the response was overdue. Mike Conway responded to advise the claimant that he could attend the office to view the 1,151 emails that had been recovered from the search. The claimant objected to these arrangements and said he would be complaining to the Information Commissioner’s Office.

[155]On 31 August 2022 the Ms Wilkes wrote to the claimant inviting him to a disciplinary hearing on 27 September 2022. In this email Mr Conway informed the claimant that the disciplinary would be concluded before the grievances would be heard. He described the grievances as having been partially heard.

[156]On 6 September 2022 the claimant raised a third grievance. This was about Mike Conway. The main complaint was about the decision to proceed with the disciplinary hearing before the second grievance and first grievance appeal had been heard. The claimant complained this was a detriment due to him being a whistleblower.

[157]Marcus Adams, Head of HR Strategy, acknowledged this grievance. In late September 2022 the claimant and Mr Adams corresponded. The claimant reiterated the same points about being a whistleblower and his complaints about the decision to put his second grievance and the appeal on hold until after the disciplinary process. Mr Adams set out the respondent’s position, which was that the disciplinary was a serious matter and had already been delayed so needed to conclude. The claimant continued to object to this approach, reiterating the same complaints in lengthy emails to Mr Adams. Mr Adams reiterated on several times the respondent’s decision to hold the disciplinary hearing before the grievance. He repeatedly explained to the claimant that the respondent’s position was that the disciplinary process and grievance were unconnected so the outcome of the grievance would have no impact on the disciplinary process.

[158]During this time the claimant continued to correspond with Mr Whalley about the ongoing Whistleblowing process. On 16 September 2022 Mr Whalley confirmed that a final report had been issued and he offered to arrange a meeting via Teams. The claimant complained about how long the matter was taking and continued to assert he was being subjected to detriments because of his whistleblowing. On 11 November 2022 Mr Whalley sent a long email to the claimant summarising their dealings. In this email he reiterated that their role was to investigate what they considered were ‘reportable concerns’. He also went through the approach that had been taken and the reasons, noting specifically it was to minimise the risk to the claimant and ensuring he remained anonymous. Mr Whalley offered again to meet to share the “high level outcomes” from their final report. The claimant met with Mr Whalley and Ms Bentley on 15 December 2022. The final disciplinary process

[159]The disciplinary hearing did not go ahead on 27 September 2022. On 29 September 2022 Mr Geale held an investigation meeting with Mr Monaghan. This was to enable him to discuss with Mr Monaghan the representations that had been made by the claimant about the investigation report. One of the issues covered was the fact that Mr Monaghan concluded his investigation without meeting the claimant. Mr Monaghan explained that he was concerned to proceed quickly rather than prolong the period that the claimant was suspended.

[160]The disciplinary hearing was delayed. This was partly because the claimant’s data subject access requests remained outstanding, so additional time was allowed to provide the claimant with the documents he had asked for.

[161]The disciplinary hearing eventually took place in November 2022. Due to the length of the discussions, and volume of information to be discussed it was adjourned twice. The meetings were held on 8 November 2022, 15 November 2022 and 22 November 2022.

[162]Mr Geale chaired the hearing and the claimant was accompanied. During the meeting Mr Geale went through the various allegations with the claimant. The claimant also had an opportunity to explain his whistleblowing and wider issues with Mr Cobbett to Mr Geale in some detail.

[163]During the hearing Mr Geale asked the claimant to explain how the various emails he had sent himself were relevant to his whistleblowing. He took the claimant through the 12 emails that had been flagged up as being of particular concern. The claimant had an opportunity to explain fully why he had forwarded himself those emails and how each one related to his whistleblowing. Mr Geale also asked him about why he felt the need to forward the emails to himself, rather than retain the information securely within the FCA.

[164]The general gist of the claimant’s explanation is that he was gathering evidence to substantiate the various matters he had raised. On occasions the claimant was unable to explain fully why he may have forwarded specific emails to himself. The claimant explained that he had been under pressure and had been “looking at headings” when he was deciding what to forward to himself. He would forward an email if it looked like it may be relevant, based on certain broad categories of subject matter.

[165]Mr Geale also asked the claimant about why he felt the need to send information externally, rather than keep it in a secure way within the FCA. The claimant’s explained he felt he needed to do so, but did not explain why this was. He also did not believe that doing so was in breach of the provisions of his contract relating to confidentiality. During the hearing the claimant confirmed he still retained the documents, which he said he was securing in a safe manner. He also confirmed he had not forwarded any emails to anyone else.

[166]Mr Geale did not make a decision at the third hearing. On 27 November 2022 the claimant sent Mr Geale a lengthy email setting out further matters he wanted to be taken into consideration. He said that there was new information which he had identified in the documents he had obtained via his DSAR. He said this showed there was a campaign to discredit him and there had been bias against him. In early December the claimant forwarded additional information to Mr Geale.

[167]In an email of 4 December 2022 the claimant also included a summary of why he said he had forwarded information to his personal email account. He reiterated his point that he was allowed to do so under clause 14.4 of his contract of employment because that included an exemption to the confidentiality provisions for whistleblowing. He said that this provision was more fundamental than the Information and Systems Acceptable Use Policy, which was the policy which the respondent said the claimant had breached. He also said that sending documents to himself was important to evidence both the wrongdoing he said was the subject of the whistleblowing and to evidence the detriment he was subject to.

[168]No further disciplinary hearing was held. On 7 February 2023 Mr Geale wrote to the claimant with the outcome of the disciplinary. In this he set out his findings in detail. His main conclusions were as follows: 168.1. The claimant had failed to accurately record his annual leave. He took into account the claimant’s explanation and concluded this was just misconduct. 168.2. The claimant’s conduct was in breach of the respondent’s Information Systems Acceptable Use Policy, by downloading information to his personal account. The breach of the policy was deliberate and extensive. Mr Geale concluded this amounted to gross misconduct. 168.3. He did not reach any definite conclusions on the allegation about the claimant’s non-engagement with the PIP. This was due to the claimant’s grievances about this issue being outstanding. 168.4. Due to the finding of gross misconduct in relation to the downloading of information to a personal account Mr Geale decided to dismiss the claimant with immediate effect.

[169]Within the outcome letter Mr Geale set out in detail his conclusions on the 12 emails that had been identified earlier on in the investigation as being of concern. Mr Geale reached different conclusions to Mr Monaghan. He concluded that forwarding all 12 of the emails was a serious breach of the policy, given the sensitive or confidential nature of the information included. Mr Geale also commented on the claimant’s assertions that he was permitted to forward himself emails under clause 14.4 of his contract. Mr Geale concluded that “whilst the act of making a protected disclosure is protected, this does not excuse other poor conduct, even if it may relate to the disclosure.”

[170]He also concluded that none were connected to the claimant’s whistleblowing. On this, Mr Geale concluded that the claimant’s explanations of how they were connected to any whistleblowing were unsatisfactory. Mr Geale particularly noted that during the hearings the claimant had described how he was seeking to retain evidence but decided to forward emails based on general subject categories rather than carefully reviewing what he was forwarding to himself and checking it for relevance.

[171]The claimant appealed against the dismissal on 13 February 2023. He sent a lengthy appeal letter setting out the grounds on which he was challenging his dismissal. One point that the claimant raised was the status of a breach of the Information and Systems Acceptable Use Policy. He noted that within the respondent’s employee handbook a breach of this policy is only categorised as being misconduct, not gross misconduct. In his appeal the claimant also set out a response to Mr Geale’s conclusions on the 12 emails that were the focus of this part of the disciplinary process.

[172]On 16 March 2023 the claimant sent further information to the respondent in support of his appeal. This related to the respondent advertising his role externally before the conclusion of the appeal process.

[173]The claimant attended an appeal investigation meeting on 30 March 2023. This was chaired by Mark Francis. A second meeting was held on 3 April 2023. These were lengthy meetings. The claimant was able to explain his case in detail to Mr Francis.

[174]Mr Francis wrote to the claimant with the appeal outcome on 19 June 2023. The decision to dismiss the claimant was upheld. In the outcome Mr Francis responded in detail to the main four grounds of appeal the claimant had discussed during the meetings.

[175]In respect of the categorisation of a breach of the Information and Systems Acceptable Use Policy, Mr Francis noted that the list of types of misconduct in the handbook was not exhaustive. Therefore, he concluded that a breach of this policy did not always have to be viewed as just misconduct, as opposed to gross misconduct. He also reiterated the point made by Mr Geale that the fact he raised a whistleblowing allegation “did not in our view provide you with immunity to transmit any or all documents in any way that you saw fit.” He also concluded that the claimant did not need to send the relevant 12 emails to evidence his whistleblowing, and that the subject matter of those emails were not relevant to the whistleblowing. Post dismissal grievance process

[176]The respondent resumed investigating the outstanding grievances and grievance appeal in July 2023. The claimant attended a grievance investigation meeting on 5 July 2023. By this point Dominic Cashman had been appointed to oversee this process.

[177]On 17 July 2023 Mr Cashman interviewed Mike Conway. On 19 July 2023 Mr Cashman interviewed Ms Paton. Mr Cashman wrote to the claimant with the outcome on 4 August 2023. He did not uphold the claimant’s appeal in respect of the first grievance. None of the other later grievances were upheld either. Mr Cashman informed the claimant that there was no further right of appeal.

[178]The claimant wrote to Mr Cashman on 6 August 2023. This was a lengthy email. He said he had concerns and raises a number of points setting out what he saw as shortcomings with the grievance and appeal outcome. He raised various queries about the procedure. Mr Cashman responded to reiterate there was no right of appeal as the claimant was no longer employed by the respondent. The claimant objected to this and sought to pursue matters further. Based on the evidence that was provided the respondent did not engage further. By that point this Tribunal claim was already ongoing. The claimant’s Freedom of Information Act requests

[179]While the claimant remained employed by the respondent he submitted a number of Freedom of Information Act requests to the team where he used to work. As part of this claim the claimant has complained that the respondent’s responded to one of these by alleging that he had a vindictive motive for making the request. The specific freedom of request the claimant relies on for this claim is the one he made on 27 January 2023.

[180]The claimant provided no evidence about this specific request or the respondent’s response. He did not provide his request. Neither did he provide the respondent’s response. The only evidence the claimant provided was a Decision Notice by the Information Commissioner’s Office about the claimant’s complaint about the respondent’s refusal to respond to a different request by the claimant. That related to a different request that the claimant had made on 26 June 2023.

[181]One of the respondent’s witnesses, Alison Lyndon-Parker, did provide an account of what had occurred. Ms Lyndon-Parker had undertaken the role of Interim Manager of the Information and Disclosure Team while the claimant was suspended. She explained that while the claimant was suspended he started to submit freedom of information act requests to the respondent. This is uncontested and is also referred to in the Decision Notice the claimant provided as evidence.

[182]The respondent had appointed an external law firm that was assisting the respondent with processing freedom of information requests at the time. Ms Lyndon-Parker instructed the law firm to process the claimant’s requests. Ms Lyndon-Parker explained there were a number of reasons for this, including avoiding any conflict of interest with the claimant’s excolleagues having to deal with the requests. I accepted this explanation as genuine.

[183]Ms Lyndon-Parker confirmed that the respondent did invoke section 14 of the Freedom of Information Act to refuse some of the claimant’s requests that it considered vexatious and not in the public interest. Her evidence related to the nature of the requests but I was not provided of detail of any specific requests that were refused. Therefore, I cannot make any definite findings about whether a particular request the claimant made on 27 January 2023 was refused for this reason. However, I am satisfied though that this provision was invoked in general by the respondent due to the volume of freedom of information requests that the claimant had made and it was an attempt to manage that situation. It is likely this reason applied to the specific decision the claimant complains about.

The Law

[184]The Claims pursued by the Claimant are: 184.1. detriment on the grounds of having made a protected disclosure (section 47B Employment Rights Act 1996); 184.2. automatically unfair dismissal due to having made a protected disclosure (section Employment Rights Act 1996); and 184.3. unfair dismissal – ordinary unfair dismissal (section 98 Employment Rights Act 1996). Protected disclosures

[185]Section 43A of the ERA 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.”

[186]Section 43B of the ERA 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, […] (d) that the health or safety of any individual has been, is being or is likely to be endangered, […] (e) 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.

[187]To succeed with any whistleblowing claim a claimant must first show they have made a qualifying disclosure as defined above. This comprises the following elements: 187.1. there must be a disclosure of information; 187.2. the individual genuinely believed the disclosure was in the public interest; and 187.3. in the reasonable belief of the individual that information showed one or more of the matters set out in section 43B.

[188]The Court of Appeal provided further guidance in Kilraine v London Borough of Wandsworth

[2018] ICR 1850

. It said: “30 the concept of ‘information’ as used in section 43B(1) is capable of covering statements which might also be characterized as allegations. [….] Section 43B(1) should not be glossed to introduce into it a rigid dichotomy between “information” on the one hand and “allegations” on the other […] 31. On the other hand, although sometimes a statement which can be characterised as an allegation will also constitute "information" and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation will do so. […] 35 […] In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1) [...] 36 […] the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters […. ] this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.”

[189]The Court of Appeal considered the ‘public interest’ test in Chesterton Global Ltd v Nurmohamed

[2018] ICR 731

. The Court of Appeal identified the following principles: “27 […] The tribunal thus has to ask(a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and

(b) whether, if so, that belief was reasonable 28 […] that exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest […] All that matters is that the tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker [….] 29 […] the necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. […] 30 […] while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it […] 31 […] the essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest […].”

[190]In relation to the public interest, the Court of Appeal considered the situation where the breach was of the worker’s own contract. It said: “37. […] In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker. […] The question is one to be answered by the tribunal on a consideration of all the circumstances of the particular case, […] the number of employees whose interests the matter disclosed affects may be relevant, but that is subject to the strong note of caution which I have sounded in the previous paragraph.”

[191]Section 43(c) sets out that if a qualifying disclosure is made to an individual’s employer it will be a protected disclosure. Detriment on the grounds of having made a protected disclosure (section 47B Employment Rights Act 1996);

[192]Section 47B of the Employment Rights Act 1996 says: “A worker has the right not to be subjected to any detriment by an act, or any deliberate failure to act, by his employer done on the ground that the workers made a protected disclosure.”

[193]Detriment is not defined in the Employment Rights Act 1996. Jesudason v Alder Hey Children’s NHS Foundation Trust

[2020] IRLR, 374

confirmed that the caselaw on discrimination provides guidance on what is a detriment and is also applicable to cases brought under the Employment Rights Act 1996. Something will be a detriment if a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment. An unjustified sense of grievance cannot amount to a detriment. Shamoon v Chief Constable of the RUC

[2003] IRLR 285

[194]Section 48(2) provides that on a complaint to an Employment Tribunal “… it is for the employer to show the ground on which any act, or deliberate failure to act, was done”

[195]Care must be taken to establish the ‘reason why’ the employer acted as it did. The ‘reason why’ is the set of facts operating on the mind of the relevant decision-maker, it is not a ‘but for’ test. The correct test is whether 'the protected disclosure materially influences (in the sense of being more than a trivial influence on) the employer's treatment of the whistleblower’ (Fecitt v NHS Manchester

[2012] IRLR 64

[196]If an employment tribunal can find no evidence to indicate the ground on which a respondent subjected a claimant to a detriment, it does not follow that the claim succeeds by default. In Ibekwe v Sussex Partnership NHS Foundation Trust,

UKEAT/0072/14/MC

the EAT concluded that there were no grounds for interfering with the tribunal’s unequivocal finding that there was no evidence that an unexplained managerial failure to deal with an employee’s grievance was on the ground that the grievance contained a protected disclosure.

[197]In International Petroleum Ltd and ors v Osipov and ors EAT 0058/17 the EAT summarised the position in respect of drawing inferences: “115. …the proper approach to inference drawing and the burden of proof in a s.47B ERA 1996 case can be summarised as follows:(a) the burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure he or she may made.

(b) By virtue of s.48(2) ERA 1996, the employer (or other respondent) must be prepared to show why the detrimental treatment was done. If they do not do so inferences may be drawn against them. ….

(c) However, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found.”

[198]When deciding on the reason it will be the decision maker’s motivation that will be relevant. If the decision maker is unaware of the protected disclosure then usually it will not be possible to conclude that the protected disclosure was a material influence on the decision. There will be occasions though when knowledge of others of the whistleblowing can be found to exert an influence on a decision. In First Greater Western Ltd v Moussa

2024 IRLR 697

, EAT there was found to be a management culture which had a causative link on the decision.

[199]It must be the disclosure itself that is the reason for any detrimental treatment. Conduct that is related to the disclosure but not an inextricable part of the disclosure, such as the manner in which it is pursued, can be distinguished. (Panayiotou v Chief Constable of Hampshire Police and anor [2014] ICR D23 EAT, Kong v Gulf International Bank (UK) Ltd

[2022] ICR 1513

). In such cases there must be a proper basis for separating the disclosure and the conduct or actions that are related to the disclosure, but not an inextricable part. This approach was confirmed by the Court of Appeal in Kong v Gulf International Bank (UK) Ltd

[2022] ICR 1513

. Automatically unfair dismissal due to having made a protected disclosure (section Employment Rights Act 1996);

[200]Section 103A of the Employment Rights Act 1996 provides that: “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”

[201]Again, it must be the disclosure itself that is the principal reason for the dismissal. In Bolton School v Evans

[2007] ICR 641

the Court of Appeal established that an employer can dismiss for misconduct that may be connected, even closely, to the protected disclosure. It found that the principal reason for dismissal was the employee’s misconduct and that could be separable from the act of making a protected disclosure.

[202]In Royal Mail Group Ltd v Jhuti

[2020] ICR 731

, SC the Supreme Court held that it is possible to look behind the purported reason adopted by a decision maker who may be unaware of a the real reason for dismissal taken by a more senior person who is a aware of the protected disclosure. Unfair dismissal – ordinary unfair dismissal (section 98 Employment Rights Act 1996);

[203]The right not to be unfairly dismissed is conferred by Section 94 of the Employment Rights Act 1996. Where, as here, there is no dispute that an employee was dismissed, the question of whether any such dismissal was unfair turns upon the application of the test in Section 98 of the Employment Rights Act 1996. The material parts of that section are as follows: “98 General.(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 – (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that Case Number: 3202301/2019 26 of his employer) of a duty or restriction imposed by or under an enactment.

(3) ...

(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 employer’s 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.”

[204]For the purposes of Section 98(2) ERA 1996 'conduct' means actions 'of such a nature whether done in the course of employment or outwith it that reflect in some way upon the employer/employee relationship': Thomson v Alloa Motor Co Ltd

[1983] IRLR 403

, EAT. It is not necessary that the conduct is culpable JP Morgan Securities plc v Ktorza

UKEAT/0311/16

[205]Where the reason, or principal reason, for the dismissal is established as conduct then it will usually, but not invariably, be necessary to have regard for the guidance set out in British Home Stores Ltd v Burchell

[1978] IRLR 379

, which lays down a three-stage test:(i) the employer must establish that he genuinely did believe that the employee was guilty of the misconduct;

(ii) that belief must have been formed on reasonable grounds; and

(iii) the employer must have investigated the matter reasonably. Following amendments to the statutory scheme the burden of proof is on the employer on point (i) (which goes to the reason for the dismissal) but it is neutral on the other two points Boys and Girls Welfare Society v McDonald

[1996] IRLR 129

[206]The correct test is whether the employer acted reasonably, not whether the tribunal would have come to the same decision itself. In many cases there will be a 'range of reasonable responses', so that, provided that the employer acted as a reasonable employer could have acted, the dismissal will be fair: Iceland Frozen Foods Ltd v Jones

[1982] IRLR 439

. That test recognises that two employers faced with the same circumstances may arrive at different decisions but both of those decisions might be reasonable.

[207]The range of reasonable responses test applies as much to any investigation and the procedure followed as it does to the substantive decision to impose dismissal as a penalty Sainsbury's Supermarkets Ltd v Hitt

[2003] IRLR 23

[208]In terms of the reasonableness of the investigation and the procedure that was followed, the “relevant circumstances” referred to in Section 98(4) include the gravity of the charge and their potential effect upon the employee A v B Case Number: 3202301/2019 27

[2003] IRLR 405

. A v B also provides authority for the proposition that a fair investigation requires that the investigator examines not only the evidence that leads to a conclusion that the employee is guilty of misconduct but also that which tends to show that they are not. However, where during any disciplinary process an employee makes admissions a reasonable employer might normally be expected to proceed on the basis of those admissions CRO Ports London Ltd v Mr P Wiltshire

UKEAT/0344/14/DM

[209]When considering a complaint of unfair dismissal under s.98(4) of the 1996 Act, where the employee has exercised a right of appeal in disciplinary proceedings the tribunal must consider the overall process Taylor v OCS Group Ltd

2006 ICR 1602

, CA. Jurisdiction – time limits

[210]Under section 48 Employment Rights Act 1996: “(3) An employment tribunal shall not consider a complaint under this section unless it is presented –(a) before the end of the period of three months beginning with the date of the at or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4) For the purposes of subsection (3) – (a) where an act extends over a period the ‘date of the act’ means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was it was decided on; and in the absence of evidence establishing the contrary, an employer … shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonable have been expected to do the failed act if it was to be done.”

[211]In Commissioner of Police of the Metropolis v Hendricks

[2003] ICR 530

the Court of Appeal set out the meaning of ‘act extending over a period’ in the context of discrimination claims. The same test applies for detriment claims brought under the Employment Rights Act 1996. The test is whether there was an ongoing situation or continuing state of affairs, distinct from a succession of isolated or specific acts.

[212]In Arthur v London Easter Railway Ltd

[2007] IRLR 58

the Court of Appeal held that when relying on a series of similar acts, the claimant needs to show that the claim was presented in time for at least one of those acts. When ascertaining if there was as series of similar acts the Court of Appeal said: [31] ‘The provision can therefore cover a case where, as here the complainant alleges a number of acts occurring in the three-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period … there must be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them … the necessary connections were correctly identified by Judge Reid QC as(a) being part of a “series” and

(b) being acts which are “similar” to one another. … [35] It is necessary to look at all the circumstances surrounding the acts. Were they all committed by fellow employees? If not, what connection, if any, was there between the alleged perpetrators? Were their actions organised or concerted in some way? It would also be relevant to inquire why they did what is alleged. I do not find “motive” a helpful departure from the legislative language according to which the determining factor is whether the act was done “on the ground” that the employee had made a protected disclosure. Depending on the facts I would not rule out the possibility of a series of apparently disparate acts being shown to be part of a series or to be similar to one another in a relevant way by reason of them all being on the ground of a protected disclosure’.

Discussion and conclusions

[213]The claimant’s case is that he made a number of protected disclosures between September 2020 and March 2021. He then says that he was subjected to 26 detriments and he was dismissed because of those disclosures. The details of the detriments are included in the appended list of disclosures and detriments at paragraphs 5-30.

[214]The detriments can be grouped into the following categories: 214.1. Those at paragraphs 5, 6, 7, 8 and 9 relate to Andy Cobbett’s conduct towards the claimant. 214.2. Those at paragraphs 11, 12, 13 and 14 relate to the PIP. 214.3. Those at paragraphs 10, 15, 18, and 29 relate to the claimant’s interactions with the internal whistleblowing procedures. 214.4. Those at paragraphs 16, 17, 19, 20 and 21 relate to the claimant’s grievances. 214.5. Those at paragraphs 22, 23, 24, 25, 26, 27 and 28 relate to the suspension and disciplinary investigation. 214.6. The complaint at paragraph 30 relates to the response to the claimant’s Freedom of Information Act requests.

[215]I have structured my decision by reference to the above categories. Protected Disclosures

[216]The claimant said that he made qualifying disclosures on 9 March 2021, in his formal whistleblowing complaint, and on 11 other occasions verbally to Andy Corbett during his one-to-one supervision meetings. The respondent accepts that the formal whistleblowing complaint made on 9 March 2021 amounts to a protected disclosure. It disputes that the claimant made any other protected disclosures.

[217]In the list of issues the claimant has set out 11 dates when he had supervision meetings with Mr Cobbett during which he says that he made protected disclosures. There are no minutes of any of these meetings. The claimant made no contemporaneous notes. The claimant did not provide any account of the majority of these meetings, setting out clearly what he says he said that could potentially amount to protected disclosures. Very simply, the claimant has not proved he made any protected disclosures on the following occasions because there is no evidence about those meetings: 217.1. 25 September 2020 217.2. 9 October 2020 217.3. 23 October 2020 217.4. 6 November 2020 217.5. 20 November 2020 217.6. 11 December 2020 217.7. 15 January 2021 217.8. 29 January 2021 217.9. 26 February 2021

[218]The meetings on 12 February 2021 and 12 March 2021 were recorded by Mr Cobbett so I had both the transcripts and recording. I reached the following conclusions: 218.1. The discussion on 12 February 2021 was very general in nature. There is nothing within the record that indicates the claimant said anything specifically about the misuse of the FOIA extensions or any of the other matters the claimant has listed as being disclosures in paragraph 3 of the appended list of disclosures and detriments. The claimant indicated in cross-examination he accepted this was the case. 218.2. On 12 March 2021 the claimant said that the team was ““effectively operating illegally, you can see what was going on potentially negligent”. This was the extent of what the claimant said about the FOIA extensions. He said nothing expressly about Mr Cobbett’s actions or culpability.

[219]The claimant did not make any qualifying disclosure on February 2021.

[220]On 12 March 2021 the claimant did say something that indicted wrongdoing relating to the FOIA extensions. The respondent accepts that this could amount to a protected disclosure but argue that what the evidence shows is different to the claimant’s pleaded case.

[221]The claimant clearly stated that the team had been acting in a way that was not compliant with legal requirements. This was a disclosure of information. I have accepted that this does amount to a qualifying disclosure. However, I have also noted that it is very limited in scope. In his pleaded case the claimant has said that he made disclosures directly to Mr Cobbett that were in effect the same as the disclosures he made within his formal whistleblowing complaint. The formal complaint was made on 9 March 2021, so by 12 March 2021 the claimant had already set out in more detail the disclosures that form part of his pleaded case. These focussed on the conduct of Mr Cobbett and what the claimant said were failings by Mr Cobbett in a number of areas. The claimant did not expressly say the same things to Mr Cobbett directly on 12 March 2021. He just reiterated a narrow point about the incorrect use of the FOIA extension process, that had been raised over six months earlier and resolved.

[222]In conclusion, the claimant made a qualifying disclosure to Mr Cobbett on 12 March 2021. It was protected, as it was made to his employer. However, the scope of this disclosure was limited and did not expressly relate to the conduct of Mr Cobbett. Therefore, it was a protected disclosure but it was different to the one that the claimant says that he made as part of his case. Preliminary general conclusions

[223]All the claimant’s claims, other than his ordinary unfair dismissal claim, are reliant on the above two disclosures. To succeed with his claims he will need to show the following: 223.1. the conduct he complains of, whether an act or deliberate failure to act by the respondent, occurred as he says it did; 223.2. that this was a detriment, taking into account the guidance in Shamoon v Chief Constable of the RUC and Jesudason v Alder Hey; 223.3. the detriment was due to the protected disclosure.

[224]When looking at causation there must be some evidence supporting a finding that the protected disclosure was a material influence on the treatment that is said to be a detriment. It does not automatically follow that the detriment is the cause of any detriment, even if there is no alternative explanation provided by the respondent. There must be some evidence from which inferences may be drawn that the disclosure was a material influence on the respondent’s actions.

[225]The claimant has pursued claims about a number of different matters which occurred during the course of his employment. As set out above, it is possible to group these into different categories, based on different distinct internal procedures. These include the whistleblowing procedure, the performance management procedure, the grievance procedure and the disciplinary procedure.

[226]These were separate processes and all involved different people and decision makers. During cross examination the claimant appeared to accept that certain decisions, acts or failures were not due to any protected disclosures. The points where the claimant made these apparent concessions are as follows: 226.1. In respect of Ms Paton’s involvement in the PIP, and the allegation she dismissed his concerns. 226.2. In respect of Mr Miller’s handling of the first grievance and any delays in that process. 226.3. In respect of the allegations that senior stakeholders and board members did not respond to his emails.

[227]Despite apparently making these concessions the claimant did not withdraw any claims and therefore I have had to determine all the claims within the list of issues. I note though that in respect of these specific claims the claimant has not advanced any clear case about why he is saying these things happened because he had made his protected disclosures.

[228]One argument the claimant has advanced in respect of all of his claims, both for detriments and unfair dismissal, is that everything that happened to him after he made his protected disclosures were connected. Essentially, he has argued that it is all a pattern of poor treatment by the respondent of whistleblowers in general and him in particular. He relied in his submissions on both First Greater Western Ltd v Moussa

2024 IRLR 697

, EAT and Royal Mail Group Ltd v Jhuti

[2020] ICR 731

, SC. In effect his case is that once he made his protected disclosures he was targeted by Mr Cobbett and others. He says that the various actions taken against him, particularly the PIP and disciplinary process which lead to the suspension and ultimately his dismissal, were all started on false pretences and the real reason was his whistleblowing.

[229]I did not accept the claimant’s argument on this point. There was no evidence to support his assertion that there was any form of campaign against him. On the contrary I concluded the following: 229.1. The disclosure made in the 12 March 2021 meeting was relatively insignificant. There was no evidence that Mr Cobbett was concerned about what the claimant said. It related to an issue that was already understood and had been dealt with. 229.2. The claimant’s formal whistleblowing complaint was kept confidential by the team who handled it. The fact the claimant had made the complaint was just not known about in general by others who worked for the respondent. The respondent’s own whistleblowing processes meant that knowledge of the formal disclosure was contained and only those directly dealing with the matter were aware it had been made by the claimant. 229.3. A consistent theme throughout is that others only became aware of the formal whistleblowing complaint because the claimant told them about it and repeatedly emphasized that he was a whistleblower. Generally, the claimant would inform individuals of his whistleblowing after the relevant processes had started. For example, Ms Paton became aware of it when the claimant told him. 229.4. The only way Mr Cobett became aware of the claimant’s formal whistleblowing was because the claimant told him at the end of July 2021. By this point the relationship between the claimant and Mr Cobbett was already very poor. There is no evidence that the knowledge that the claimant had made a formal whistleblowing complaint had any further impact. 229.5. Mr Cobbett recused himself from both the PIP and the investigation that arose out of Project Stone. This was due to the ongoing grievances raised by the claimant, not the whistleblowing. There is also no evidence that he continued to have any influence behind the scenes.

[230]In summary I can find no reason to suspect that the respondent had some general ulterior motive that would require me to look behind an individual decision maker’s motives. This conclusion applies across the board to all of the claims where the claimant has asserted the respondent’s stated reason is not the real reason for its actions. Claims about Mr Cobbett

[231]The complaints the claimant makes at paragraphs 5-9 of the appended list of detriments all relate to the interactions between the claimant and Mr Cobbett up until 12 March 2021. Broadly the claimant’s complaints all relate to the manner in which he says that Mr Cobbett acted and his perception of Mr Cobbett being hostile towards him. In summary there are 5 broad allegations: 231.1. the content of an email dated 15 September 2020; 231.2. Mr Cobbett acting in an oppressive, angry, aggressive and bullying manner in one to one supervision meetings; 231.3. Mr Cobbett saying “things are not as good as they should be” and “I am not pleased”; 231.4. at those meetings asked questions in a hostile way and talked over the claimant; and 231.5. on 12 March 2021 Mr Cobbett told the claimant to “be careful”, which the claimant found threatening, and said be “very careful using big words like that” and repeated this in a slow and deliberate manner.

[232]For the purposes of this case, I have concluded the claimant made two protected disclosures. These were the detailed formal whistleblowing complaint, made on 9 March 2021, and the limited disclosure made verbally to Mr Cobbett directly during the meeting on 12 March 2021. Mr Cobbett did not find out about the formal whistleblowing complaint until 29 July 2021, when the claimant referred to it in an email to Mr Cobbett.

[233]The consequence of this is that the only claims that could potentially succeed would be any that related to events on 12 March 2021 or after. Therefore the claims about the email of 15 September 2020 and about any conduct in meetings before 12 March 2021 cannot succeed.

[234]Irrespective of this, the claimant also has not proved that Mr Cobbett acted in the way that he now complains about. There were no minutes taken at the time of any of the meetings. The claimant has not provided any account of these meetings setting out any details of how he says Mr Cobbett acted, other than 12 March 2021, in his witness evidence. I accepted it was likely that the meetings were difficult, and it was possible that comments were made along the lines of “things are not as good as they should be”. This would be a legitimate comment, given Mr Cobbett had well documented concerns about the claimant’s ability to perform his role fully and improvements were required in the claimant’s team performance. The claimant has not proved Mr Cobbett was hostile, aggressive or acted in an oppressive or angry manner.

[235]In terms of 12 March 2021, the recording shows that Mr Cobbett did respond by saying “Right, be careful, because you are using it in really big words”. What Mr Cobbett said in the meeting in response to the claimant is very similar to what the claimant has alleged. It is understandable that the exact words may differ, given the passage of time. However, the allegation was not about the words per se. The alleged detriment is that Mr Cobbett was in effect threatening the claimant. I did not accept this was the case. This was a brief discussion in passing during a supervision meeting. Having heard the recording there was nothing about the way Mr Cobbett spoke that could reasonably be viewed as threatening. The claimant has not proved that Mr Cobbett acted in this meeting as alleged.

[236]Therefore, all the claims about Mr Cobbett’s conduct towards the claimant during their supervision meetings up until 12 March 2021 do not succeed. Claims about the PIP process

[237]The claimant has said he was subjected to 4 detriments about the PIP process. The full details of the allegations are at paragraphs 11, 12, 13 and 14 of the list of detriments.

[238]The key allegation is that the claimant was subjected to a PIP process and he says this was due to him having made protected disclosures. Being subjected to performance management, that could ultimately lead to further action or even dismissal, would be a detriment. The claimant has also alleged that the process was unfair and that other specific aspects about the procedure were detriments. In summary the allegations are: 238.1. Mr Cobbett subjected the claimant to an unfair PIP process; 238.2. Mr Cobbett worked with HR from February 2021 to implement the PIP; 238.3. Mr Cobbett informed the claimant of the proposed PIP on 10 June 2021 without prior discussion about alleged poor performance and the meeting was held under false pretences; 238.4. Mr Cobbett worked deliberately to falsify and misrepresent certain targets for the PIP, altering the targets retrospectively; 238.5. the respondent contravened its own procedure on performance management which says there should be objective assessments about performance and issues should be discussed at the earliest stage with the employee concerned; and 238.6. Sandra Paton dismissed the claimant’s concerns when she took over responsibility for the PIP.

[239]My findings of fact about the initial stages of the PIP process, including the background, can be summarised as follows: 239.1. Mr Cobbett had concerns about the claimant’s performance from early on. He initially wanted to extend the claimant’s probationary period. The decision the treat the claimant as having passed his probation was a practical compromise following the claimant’s first complaint. 239.2. Mr Cobbett repeatedly tried to flag up his concerns with the claimant. This was reflected in the review in October 2020 and the end of year review in March 2021. The same type of concerns were raised repeatedly. Mr Bennett also expressed concerns about the claimant’s performance. 239.3. Mr Cobbett did first raise the possibility of a PIP with HR in February 2021. This was not communicated to the claimant at the time. Mr Cobbett did this because he had genuine ongoing concerns about the claimant’s performance. 239.4. In May 2021 Mr Cobbett set draft objectives for the claimant. The claimant changed these on the HR system without agreeing those changes with Mr Cobbett. The claimant has not shown that Mr Cobbett changed or falsified those at any other point. 239.5. The claimant was informed of the proposed PIP on 10 June 2021. It is unclear on what basis the claimant says this meeting was held on false pretences. This was an initial informal meeting to convey the proposed PIP to the claimant, it was not the start of the process itself. 239.6. The claimant has not clearly identified any particular way in which the PIP process contravened the respondent’s procedure. Mr Cobbett had discussed his concerns with the claimant repeatedly, albeit the claimant did not seem to take this on board. An informal meeting was held to inform the claimant that a PIP was being implemented. Mr Cobbett undertook a performance gap analysis and drew up a formal PIP document to use as the basis of the process.

[240]The crux of the claimant’s case is that the PIP was not genuine but was retaliatory due to his whistleblowing. The claimant was subjected to a PIP and that would be a detriment. However, there was no evidence to suggest that either of the claimant’s protected disclosures may have been a factor in Mr Cobbett’s decision to place the claimant on a PIP. On the contrary I was satisfied that the PIP was genuine and due to his manager, Mr Cobbett, viewing the claimant’s performance as unsatisfactory in various ways. My reasons for this conclusion are as follows: 240.1. Mr Cobbett first raised the possibility of a PIP in February 2021. This was before the claimant made either protected disclosure. 240.2. The actual PIP did not start until June 2021, after the protected disclosures were made in March. However, Mr Cobbett was not aware of the formal whistleblowing complaint at that point. This could not have been a factor in the decision to start the PIP. 240.3. The only protected disclosure that Mr Cobbett could have known about was the one made on 12 March 2021. This was a limited comment made in passing during a supervision meeting. It was not directed to Mr Cobbett himself, but about the background situation which was well understood by that point. It is not credible that Mr Cobbett may have subjected the claimant to a PIP because of this limited comment. 240.4. On the contrary, Mr Cobbett’s concerns about the claimant’s performance are well documented and had been ongoing since shortly after his employment began. This was the clear reason for the PIP being started.

[241]With regards to the other alleged detriments, my conclusions are as follows: 241.1. It was not unfair, as alleged at paragraph 11 of the list of detriments. The claimant perceived the PIP as unfair because he did not accept it as genuine. However, it was genuine and there was nothing untoward or unfair about the process. 241.2. The claimant has not shown that the meeting on 10 June 2021 was arranged under false pretences (paragraph 11) 241.3. Mr Cobbett did not work to deliberately misrepresent targets (paragraph 12). He put together a PIP that was based on the issues that he perceived as being problems. It was the claimant who altered his targets on the HR system. 241.4. The respondent’s procedures were not contravened (paragraph 13).

[242]The claimant has not shown that he was subjected to the specific detriments that he has alleged occurred. In addition, for the same reasons as set out above, nothing about the PIP process was in any way connected to any protected disclosures. Mr Cobbett had genuine and long standing concerns about the claimant’s performance which was why he started the PIP process. Mr Cobbett then followed the respondent’s processes to try and implement the PIP.

[243]The claimant has also claimed that when Sandra Paton took over the management of his PIP she dismissed his concerns. In cross examination the claimant also appeared to accept that Ms Paton’s actions were not due to any whistleblowing, but he did not formally withdraw this claim.

[244]Ms Paton took over when the claimant raised his grievance about Mr Cobbett. She reviewed the PIP and updated it. She sought to engage with the claimant. He continued to object to the PIP as a whole and did not engage with the process.

[245]The concerns the claimant raised, which he seems to be saying were dismissed by Ms Paton, were his objections to the PIP process as a whole. Ms Paton was not obliged to accept the claimant’s assertions that the PIP was not justified just because the he said this was the case.

[246]In any event, Ms Paton did not just dismiss any concerns. Ms Paton engaged with the claimant and entered into relatively lengthy correspondence with him. She reviewed the PIP and sought evidence from HR to understand the reason it was being undertaken, and concluded it was justified. She also reviewed the PIP itself so it was more achievable. What she did not do was just accept the claimant’s assertions about the PIP at face value. This was unrelated to any whistleblowing, it was due to her conclusion that the PIP was justified.

[247]For these reasons, all the claims relating to the PIP do not succeed. Claims about the internal whistleblowing process

[248]The claimant has made several complaints that all broadly relate to his internal dealings with the respondent’s whistleblowing team and others within the respondent who he says had responsibility for whistleblowers. I have grouped these together as there are a number of similarities to the claimant’s complaints.

[249]The specific complaints are set out in paragraphs 10, 15, 18 and 29 of the list of detriments. In summary the complaints are as follows; 249.1. The respondent failed to take action after he notified the whistleblowing team of bullying by Mr Cobbett on 10 June 2021, i.e. after he was informed of the PIP (paragraph 10). 249.2. The respondent failed to promptly progress the protected disclosure concerns and failed to investigate the claimant’s concerns about Mr Cobbett (paragraph 15). 249.3. The respondent’s senior stakeholders, including the ‘Whistleblowing Champion, ignored the concerns he raised with them directly in various emails (paragraph 18). 249.4. The respondent refused to provide the claimant with written information about the outcome on various occasions (paragraph 29).

[250]What links all these complaints is that they are allegations that the respondent has failed to do certain things which the claimant is asserting they ought to have done. The claimant is in effect saying that the respondent had an obligation to him to act in certain ways because he had made a protected disclosure. By not acting as he says they ought to have acted he has been subjected to those detriments.

[251]The statutory protection in respect of whistleblowing is limited. There are just two elements:252. the disclosure itself made by the individual; and

253. a prohibition on the employer subjecting the individual to any detriment.

[254]There is no formal procedure that has to be followed by the individual making a qualifying disclosure. It can be made in a formal way, e.g. set out in detail in writing, or made in passing in a conversation. An employer may have a formal process to enable disclosures to be made, but it is not necessary. This is apparent from the claimant’s own case, where he made a formal disclosure to the respondent’s dedicated team but also relies on statements he says he made orally in meetings.

[255]In terms of the employer’s response, there is no automatic positive obligation on the employer to do anything under the statutory scheme. An employer may have obligations under their own policy, if they have one. In some circumstances an individual may be able to show that an employer’s failure to deal with a whistleblowing complaint was detrimental to them. There is no obligation on the employer to respond to whistleblowing in any specific way. Whether a failure to act is detrimental will depend on the circumstances. For example, it could be a detriment if there are further immediate consequences to the individual as a result of the employer not taking action in respect of the concerns that are raised. In addition, to be a detriment, there must also be a deliberate failure by the employer.

[256]In respect of the claimant’s specific complaints, the respondent did as follows; 256.1. The respondent has a detailed whistleblowing procedure. This sets out what will happen if a formal whistleblowing complaint is made. The respondent’s dedicated whistleblowing team followed this procedure. 256.2. Under this procedure it is made clear that although an individual would usually be informed of progress and the outcome it may not always happen. There are also no timescales or other clear commitments within the policy. 256.3. The claimant was kept informed by the whistleblowing team about what was happening. This included inviting the claimant to various meetings and keeping him up to date by email relatively regularly. 256.4. The whistleblowing procedure also makes it clear that it applies to what it describes as “reportable concerns” and that it is distinct from the grievance procedure. It also states that if an individual has complaints about their own employment then the grievance procedure needed to be used. 256.5. When the claimant raised concerns with the whistleblowing team about Mr Cobbett’s actions towards him they directed him to the grievance policy and informed him it was outside their remit. 256.6. The policy sets out the role of the ‘Whistleblowing Champion” and makes it clear they are not involved in the day to day matters and should be contacted as a last resort. 256.7. When the claimant contacted the board members his email was acknowledged, albeit not immediately. He was informed that as there were separate processes ongoing they would not comment further at the time. This was in accordance with the policy.

[257]Overall, the respondent complied with their own policy on whistleblowing. The claimant has not complained that the respondent failed to comply with their own policy. His complaints are in effect that the respondent should have done more than that the policy requires and the failure to do so amounts to detriments. He in effect says the following should have happened: 257.1. The whistleblowing team should have taken action when he complained about Mr Cobbett starting the PIP, even though it was repeatedly made clear to him that was outside their remit. 257.2. The whistleblowing team should have provided more information to him, even though he had regular updates about what was happening and more feedback was not required by the policy. 257.3. The respondent’s board should have responded to his repeated emails, even though they fell outside both the whistleblowing and grievance procedures and he was informed it would not be appropriate for the board to respond when other internal processes were ongoing.

[258]When looked at in terms of the bare factual allegations, it is correct that the respondent did as the clamant alleged. However, taking into account the above considerations, I have concluded that nothing the claimant has identified are detriments due to the claimant’s protected disclosures for the following reasons: 258.1. The claimant had repeatedly been told by the whistleblowing team what their remit was and what they would be doing. The claimant may have wanted the whistleblowing team, or the board members he emailed, to do more in the circumstances. It was not reasonable to expect those individuals to take additional action beyond what they did. A failure to do exactly what the claimant wanted is not a detriment. It falls within the type of conduct identified in Shamoon v Chief Constable of the RUC

[2003] IRLR 285

as being an unjustified sense of grievance. 258.2. There is nothing which indicates that anything the claimant complains about were deliberate failures on behalf of the respondent. They are all failures to meet the claimant’s expectations. The claimant’s expectations were outside what the respondent needed to do under their own relevant procedures or what the whistleblowing could reasonably be expected to do, given their specific role. 258.3. To the extent there may have been any delays or other minor issues, there is no evidence that this was due to the fact the claimant had made any protected disclosures. In terms of the time taken to carry out the audit, the logistics were explained by the respondent and were understandable. They were not due to the fact that the claimant had made any protected disclosures.

[259]For these reasons the claimant’s complaints about the way his formal whistleblowing was handled and related matters, do not succeed. Complaints related to the claimant’s grievances

[260]The claimant raised three grievances. The first was heard and the claimant appealed the outcome. The claimant has made five complaints of detriments relating to how these were handled.

[261]The first two complaints relate to how the first grievance was dealt with. The claimant says: 261.1. The respondent failed to deal with it properly as it took five weeks for it to be heard. 261.2. The respondent delayed in providing the outcome as that took a further seven weeks.

[262]The claimant’s first grievance was raised on 16 June 2021. The grievance meeting was held on 21 July 2021 and the outcome was provided on 8 September 2021. There were some delays, as alleged by the claimant, but these were not significant.

[263]During cross examination the claimant indicated that he accepted that any delay was not due to any protected disclosures the claimant made. The claimant did not withdraw these claims, but neither did he explain further in his submissions the basis on which he is saying that any delay was due to his protected disclosure.

[264]Looking at the evidence from the time I also noted that the claimant did not expressly refer to his formal whistleblowing complaint in the grievance itself or otherwise say that he had made any protected disclosures. He also did not do so during the meeting or subsequent correspondence with Mr Miller, who heard the grievance. There is no other evidence that indicates Mr Miller could have been aware of the claimant’s whistleblowing complaint. On this basis there are no grounds to for me to infer that any delay may have been due to whistleblowing, rather than an understandable delay in the circumstances.

[265]In respect of the second and third grievances, the claimant’s complaints are as follows: 265.1. The second grievance was unreasonably delayed because it had not been dealt with by the time he was suspended on 21 October 2021. 265.2. Mike Conway undermined the claimant and failed to progress the grievances in a reasonable way. 265.3. The respondent acted unreasonably, changing its position and refusing to complete the grievances before the disciplinary process was completed.

[266]The key facts are as follows: 266.1. The second grievance was raised on 27 August 2021. This was about the PIP process. 266.2. There were some delays to the start of the investigation, in part due to the investigating offer changing. Interviews started in midOctober 2021. 266.3. The claimant was suspended on 21 October 2021 and the disciplinary investigation started. 266.4. The disciplinary investigation concluded in December 2021 and the hearing was due to be held then. I was not provided with any evidence that the respondent had agreed that the grievances would be held before the disciplinary, either then or later. 266.5. The disciplinary hearing was postponed initially due to the claimant’s sickness absence. There were further delays due to the claimant’s request for information, including his DSAR. 266.6. During this time the claimant was asked to answer questions relating to both the disciplinary process and his outstanding grievances to enable both to be progressed. 266.7. At the end of August 2022 Mr Conway informed the claimant the disciplinary would progress. The claimant objected to this happening and insisted his grievances had to be heard first. Mr Conway reiterated that the disciplinary was too serious to delay and would be heard first. 266.8. On 6 September 2022 the claimant submitted his third grievance. This was about the Mike Conway’s formal decision that the disciplinary process needed to be concluded before the second grievance was heard. 266.9. The disciplinary process resumed in November 2022. It was protracted with several meetings being held and culminated in the claimant’s dismissal on 7 February 2023. 266.10. Mr Geale did not make any findings during the disciplinary process about the claimant’s alleged non-engagement with the PIP. This is because it was subject of the outstanding second grievance. 266.11. The grievances were heard in July 2023 with the outcomes provided in August 2023.

[267]There were delays in hearing the second grievance and the appeal to the first grievance. The investigation stage was ongoing when the claimant was suspended and it was in effect put on hold until the disciplinary process was concluded. There was less of a delay with the third grievance, but it was also postponed until after the disciplinary process concluded.

[268]Significant delays in hearing an employee’s grievance would be detrimental. The impact of the delay on the individual may be compounded when an employee is also going through disciplinary proceedings. The claimant has shown that he was subjected to the specific detriment of his grievances being delayed. The question is why that delay happened, and whether it was due to the claimant’s protected disclosures.

[269]The respondent’s explanation is that it was legitimately entitled to prioritise the disciplinary due to the serious nature of the allegations and the delays that had already occurred. I accepted the respondent’s explanation as genuine. The grievance was ongoing when the decision was made to suspend the claimant and start the disciplinary investigation. At that point there were different options available. It was not clear what happened immediately in October 2021 in respect of the grievance. I was not provided with any evidence, either in the documents or from the witnesses, that showed that the respondent told the claimant his grievances would be dealt with first. The disciplinary process was then delayed due to the claimant’s ill-health and his subsequent requests for further information. In the circumstances the respondent decided to prioritise the disciplinary hearing, given the severity of the allegations and the length of time the claimant had been suspended. This in turn lead to a further delay in the grievance procedures being completed. There is nothing from which I could infer that the fact that the claimant had made a protected disclosure almost two years earlier was a factor in the delay. The delay is explained by the way events unfolded in late 2022 and 2023.

[270]The claimant has also alleged that Mr Conway undermined the claimant by not progressing the grievance and the unreasonably respondent changed its position by not concluding the grievances before the disciplinary process concluded. In respect of these allegations, I was unable to ascertain the basis for the claimant saying that the respondent changed their position. In August 2022 Mr Conway confirmed that the disciplinary process would take place first. The claimant sought to insist that it could not happen until the grievances had been heard. There was no basis for him making that assertion. He had not been given any assurance that the grievances would be dealt with first. I also cannot see the basis for saying that Mr Conway’s decision undermined the claimant.

[271]In respect of Mr Conway’s decisions, they were also unrelated to the fact the claimant made protected disclosures two years earlier. Mr Conway’s decision was implementing the respondent’s decision to prioritise the conclusion of the disciplinary process for the same reasons as given above.

[272]Therefore, the claimant has not shown that he was subjected to these additional detriments. The respondent did not unreasonably change its position and Mr Conway did not undermine the claimant and the decisions on how to handle the grievances were unrelated to any whistleblowing.

[273]Therefore the claimant’s claims relating to the handling of the grievances do not succeed. Suspension and commencement of the disciplinary process Preliminary matters relevant to these claims and the dismissal claims

[274]There is no dispute that the claimant sent emails to his personal email account during the period that was reviewed during Project Stone. This was over a few months from June 2021 until late September or Early October 2021. The claimant sent over 400 emails to himself. Neither is it disputed by the claimant that he sent the emails to himself with the intention of retaining that information.

[275]The respondent said that this was a breach of the ISAUP which probits sending their information to personal email addresses. The policy is clear on this point. The policy also clearly states that if the policy is breached disciplinary action may be taken and the respondent may ask for consent to examine personal devices if a breach is suspected.

[276]The claimant’s position throughout the investigation and disciplinary investigation is that he was entitled to send himself the respondent’s information due to his whistleblowing. He has maintained that position throughout this case. He has repeatedly said that clause 14.4 of his contract of employment expressly permitted him to do this.

[277]Clause 14 of the claimant’s contract includes confidentiality provisions. It is quite general in nature, setting out the employee’s obligations in relation to the handling of confidential information. Clause 14.4 includes two exceptions. One is to permit disclosures that are needed “in the ordinary and proper course of your employment. The claimant relies on the second exception within the clause. This states the restrictions do not apply to: “any protected disclosure within the meaning of section 43A of the Employment rights Act 1996”

[278]The claimant’s position, as he put forward during the investigation and the disciplinary process, is that he was forwarding a high volume of emails to himself in order to evidence his whistleblowing. He says that because his actions related to whistleblowing he was covered by this exemption.

[279]Clause 14.4 is limited in scope. It expressly states that the making of a protected disclosure itself will not be a breach of confidentiality. Under the Employment Rights Act 1996 a qualifying disclosure will be protected automatically if made to the individual’s employer. In some circumstances external disclosures can be protected. There are different rules that apply with external disclosures depending who the disclosure is made to. For example, there is a list of prescribed people, which includes regulatory bodies, and disclosures to them about matters for which they are responsible will be protected. Making a protected disclosure to an external body may often involve an employee breaching the confidentiality provisions of their contract of employment. Section 14.4 effectively provides a limited exemption to ensure the confidentiality clause is not in conflict with an employee’s right to make external protected disclosures.

[280]In this case the claimant sent himself significant amounts of information over a period of several months. He retained that information and at no point has he said that he passed it on to any external body, such as a regulator or other people to whom an external protected disclosure could be made. At points he has suggested that he may in due course pass information on elsewhere, but this was always hypothetical. By sending information to himself the claimant was not making a protected disclosure. He has never said that he was either, only that he was evidencing the disclosures he had already made. The claimant’s actions in sending himself several hundred emails to his personal account would not be covered by clause 14.4 of his contract.

[281]The act of sending the information and emails to himself would not be something that is in itself protected under the Employment Rights Act 1996. The statutory protection only applies to the act of making a protected disclosure. As clarified in Panayiotou v Chief Constable of Hampshire Police and Kong v Gulf International Bank (UK) Ltd, an individual’s conduct that may relate to whistleblowing can properly be distinguished from the act of making a protected disclosure. The question is whether the conduct is in inextricable part of making the disclosure.

[282]The claimant’s explanation for sending the information to his personal email was the need to evidence his whistleblowing. There was no need for the claimant to do this. It is the act of making a disclosure that is protected. A whistleblower does not need to prove that what they are saying is true or take any further action. Gathering evidence of wrongdoing is not an intrinsic part of whistleblowing. On this basis there are grounds for concluding that the claimant’s conduct in sending himself a high volume of emails can be properly distinguishable from the act of whistleblowing.

[283]In the claimant’s case I have also made the following observations: 283.1. The claimant made a formal whistleblowing complaint on 9 March 2021 and an informal disclosure orally on 12 March 2021. The formal whistleblowing complaint was being investigated by the whistleblowing team, and the claimant knew what was being done. The claimant forwarded himself a significant amount of confidential information several months later but did not send that information to the whistleblowing team to review as part of their own processes. 283.2. The claimant has repeatedly said that he was sending information to himself to evidence his whistleblowing but he has never provided a clear coherent explanation of how the 12 emails, which were viewed as most serious, were evidence of the matters he raised in his 9 March 2021 whistleblowing complaint. The claimant was given opportunities to explain the connection during the investigation and disciplinary process. The claimant’s explanations remained vague and he did not clearly set out how specific emails evidenced any particular wrongdoing included within his whistleblowing complaint. He has not provided any further explanation during this case either. 283.3. During the investigation and disciplinary the claimant did not say he forwarded the information to himself purely to evidence his whistleblowing. He repeatedly said it was also about evidencing the detriments he said had occurred as a result. Actions connected to complaints about detriments are clearly distinguishable from the act of making a protected disclosure. 283.4. After he was suspended the claimant referred in correspondence to pending legal action against the respondent. He indicated he would be pursuing action about what he saw as being detriments. Action taken to prepare for later legal action about how the claimant said he had been treated is also clearly distinguishable from a protected disclosure. 283.5. It is also notable that at the time the claimant was sending this information to himself he was also being subjected to the PIP and was pursuing two grievances. These were separate disputes between the claimant and the respondent, albeit the claimant may have viewed them as connected to his whistleblowing. It appears likely that some of the information the claimant was forwarding to himself may have related to those separate disputes.

[284]Taking into account the additional context set out above I have concluded that this is a case where the claimant’s conduct in forwarding significant amount of information to his personal email is distinguishable from the act of making a protected disclosure. Any connection to the claimant’s whistleblowing was relatively remote. It is also possible that some of the information the claimant forwarded himself related to the claimant’s wider grievances about Mr Cobbett and the PIP, rather than directly to the underlying disclosures. Any connection to the whistleblowing was due to the claimant’s perception that the PIP had been retaliatory rather than related to the whistleblowing itself. The detriments

[285]The claimant makes the following allegations about the decision to suspend him and related matters: 285.1. He says that suspension was disproportionate (paragraph 22 of the detriment list). 285.2. He says that clause 14.4 of his contract was not considered at the time of suspension (paragraph 25 of the detriment list). 285.3. He says the seriousness of the breach of the Information and Systems Acceptable Use Policy (“ISAUP”) was misrepresented by the respondent (paragraph 27 of the detriment list). 285.4. He complains about being informed during the suspension meeting about the respondent coming to his home and asking him to cooperate and being told he would be asked to hand over his personal equipment and searches of his devices would be undertaken (paragraph 23 and 24 of the detriment list). 285.5. He complains about Mr Alderton’s letter seeking his cooperation in retrieving the information which he says was threating (paragraph 28 of the detriment list) 285.6. He complains that Mr Cobbett informed the staff he had been suspended (paragraph 26 of the detriment list).

[286]The claimant was suspended because of the conclusions reached in Project Stone. The claimant was identified as one of three people who had sent a particularly high amount of information externally and the subject matter of the information meant that external disclosure was deemed high risk. The ISAUP makes it clear that sending information to personal email accounts is in breach of the policy and that can lead to disciplinary action.

[287]If an employer suspects wrongdoing by an employee it must first undertake an investigation to establish if there are grounds for taking disciplinary action. An employer may often decide to suspend an employee pending an investigation, particularly if there may be a risk of further difficulties if the individual were to continue to work as normal.

[288]As noted above, the claimant has never disputed that he sent a significant number of emails to his personal email account. That was uncovered during Project Stone. For the reasons I have already set out, I have concluded that the claimant’s actions in sending the information to his personal account is properly distinguishable from his protected disclosures.

[289]The decision to suspend and the various actions the claimant complains about that are connected to that suspension all occurred as a result of the respondent’s preliminary findings about the claimant’s actions as a result of Project Stone. It was in response to the claimant’s conduct that is distinguishable from the whistleblowing.

[290]The claimant says that the suspension was disproportionate. He also says that the seriousness of the breach of ISAUP was misrepresented. Given the severity of the allegations it is unclear the basis that the claimant makes either of these claims. The claimant was identified as one of the three most serious cases in Project Stone. He had forwarded himself over 400 emails in approximately three months including highly sensitive information. This is what the respondent knew following the initial investigation during Project Stone. If the claimant were to continue to work as normal he would require access to the respondent’s IT systems including his work email. This would pose a risk that the claimant may send further information externally. In the circumstances suspension would be a proportionate action, as it would enable investigation while limiting the risk of the claimant sending further information externally.

[291]In addition, there is nothing to suggest that the way the claimant’s actions were initially viewed or the decision to suspend him was due to any earlier whistleblowing. The claimant subsequently put forward his whistleblowing as his justification for forwarding himself so much information. At the point of suspension this explanation was not known by the respondent.

[292]In terms of clause 14.4, it is correct this was not considered at the time of suspension. The decision to suspend is a first step when wrongdoing is initially suspected. The investigation would then happen, during which the claimant would be able to explain his actions, which may include reliance on clause 14.4. There would be no reason for the respondent to pre-emptively consider whether clause 14.4 applied when deciding to suspend the claimant. Therefore, there was no detriment because there was no deliberate failure on behalf of Mr Alderton as there was no reason for him to consider the application of clause 14.4 at that stage. On this point I also note that had it been considered it is unlikely to have affected any decision given that the exemption in clause 14.4 did not apply to the claimant’s conduct.

[293]The claimant has made several complaints about his interactions with Mr Alderton relating to the respondent’s attempts to retrieve their information and devices. The claimant was told during the suspension meeting that a team would attend his house to recover devices such as his laptop and he was asked to cooperate. He was subsequently sent a letter on 26 October 2021 reiterating what was required and asking him to provide various undertakings relating to the information he had forwarded himself. This letter was formal and included the possibility of legal action.

[294]The respondent did this because the claimant had forwarded himself a large amount of information, some of which was highly sensitive. Details of the emails containing the most sensitive information were set out in the 26 October 2021 letter. The request to return the respondent’s devices and confirm that information had been deleted was a legitimate request, in light of the claimant’s actions as understood at that time. It was in accordance with the claimant’s contract. I accepted the respondent’s explanation, as it was consistent with the findings of Project Stone and the decision to suspend the claimant and investigate. There was no reason to conclude that this may have been due to the claimant’s whistleblowing. On the contrary, it was due to the claimant’s conduct that was distinguishable from his whistleblowing.

[295]The claimant has further alleged that he was told his home would be searched and he would be required to hand over personal devices. I concluded this did not happen. The claimant has not proved this occurred as he alleged. I would further note that the ISAUP does say that the respondent may ask for consent to “examine your personal mobile device(s) under any such action, where there is a suspected breach of this policy.”. Had the respondent asked to examine the claimant’s personal devices it would have been permissible under the policy. There is no reason to infer that any such request may have been due to the claimant’s whistleblowing, rather than due to the respondent knowing he had sent himself a significant amount of their information.

[296]The claimant has also complained that Mr Cobbett informed the team that he had been suspended. Mr Cobbett would need to inform the claimant’s team that he would be absent, but there is no evidence that he told them about the suspension. The claimant has not proved this occurred. There is no evidence to support this assertion. In his own witness evidence it was clearly just speculation by the claimant. Therefore this claim does not succeed.

[297]In conclusion, the claimant’s claims about the suspension and how it was handled all do not succeed. To the extent that certain incidents occurred they were unrelated to the claimant’s whistleblowing. The respondent’s actions were consistent with what was known about the claimant’s conduct following Project Stone and the need to protect their information and start an investigation into the allegations. The claimant’s freedom of information act request detriment

[298]The claimant pursues a single claim about the respondent’s decision to refuse to deal with one of his freedom of information requests. He says this was a detriment and it was due to his whistleblowing.

[299]As noted in my findings of fact above, the claimant did not provide evidence of what had occurred. He did not provide a copy of the request or the rejection. Neither did he explain what occurred in his witness evidence. He only provided a decision by the Information Commissioner’s Office that related to the refusal by the respondent of a different request.

[300]Despite this, it is uncontested by the respondent that the claimant did make multiple requests under the Freedom of Information Act while his employment was ongoing and after. The respondent also accepts that it viewed some of these as vexatious and refused to deal with them on that basis.

[301]To the extent that the facts are undisputed, I accept that it is likely the respondent did refuse to deal with the specific request the claimant refers to in the claim. However, I also accepted the respondent’s explanation for doing so, namely the following: 301.1. The reason the request was refused was because the respondent viewed them as vexatious. By this time (January 2023) the dispute between the parties was already protracted. Disciplinary proceedings almost complete but there were still outstanding grievances. 301.2. The claimant sent a high number of requests under the Freedom of Information Act. This is confirmed by the Information Commissioner Office report. It would be reasonable to view the multiple requests as part of this ongoing dispute. 301.3. To manage the situation the respondent appointed an external law firm. They decided to use the provisions of section 14 Freedom of Information Act.

[302]I accepted Ms Lyndon-Parker’s explanation. There was no indication that a protected disclosure the claimant made almost two years earlier had any influence on that decision. Therefore this claim also does not succeed. Dismissal

[303]The claimant says the dismissal was automatically unfair due to whistleblowing and ordinarily unfair.

[304]The first question for me to address in both claims is the reason for dismissal. The claimant says it was his whistleblowing. The respondent says it is the claimant’s conduct. They also say that the claimant’s conduct, to the extent that it may be related to the claimant’s whistleblowing, can be properly distinguished from the act of making any protected disclosures.

[305]I am satisfied that the respondent’s reason for dismissal was the claimant’s conduct, namely the fact that he forwarded a significant amount of sensitive information that belonged to the respondent to his personal email account. It is undisputed that the claimant did this. During the disciplinary process the respondent considered three separate allegations, but Mr Geale’s decision to dismiss the claimant was solely based on the upheld allegations about this particular conduct.

[306]For the reasons set out above, I have concluded that the claimant’s conduct in sending information to his personal account, and retaining that information, is properly distinguishable from his whistleblowing. To reiterate the key points: 306.1. Sending information to himself is not in itself a protected act under the Employment Rights Act 1996. The exemption in clause 14.4 of his contract does not apply. 306.2. There is no need for a whistleblower to gather evidence to prove any wrongdoing they allege has occurred. This conduct is distinguishable from the act of whistleblowing. 306.3. In the claimant’s case, he says that he was gathering information to evidence both his whistleblowing and the detriments he says he was subjected to. By the claimant’s own admission his conduct was not just related to whistleblowing but also related to his other complaints. This further severs any link between the claimant’s conduct and his whistleblowing.

[307]In summary, the respondent dismissed the claimant because of his conduct. That conduct is properly distinguishable from the claimant’s whistleblowing. This means that the sole or principal reason for dismissal was not the claimant’s protected disclosure. Therefore, the claim for automatic unfair dismissal does not succeed.

[308]In the context of the ordinary unfair dismissal claim, conduct is a potentially fair reason. In this case there is no dispute about what the claimant actually did. As a result of Project Stone the respondent had ascertained that the claimant sent a significant amount of emails to himself of which 12 included highly sensitive or confidential information. The claimant does not dispute the main underlying facts.

[309]The question is whether it was reasonable for the respondent to dismiss the claimant because of that conduct in the circumstances. As the claimant’s underlying actions are not disputed the questions for me to determine are: 309.1. whether the respondent was entitled to conclude that conduct amounted to misconduct of the type alleged, based on the evidence available; 309.2. whether dismissal due to that conduct was within the band of reasonable responses; 309.3. and whether a fair procedure was followed, including the investigation.

[310]The investigation itself was through. In this case it includes both the preliminary investigation, Project Stone, and the investigation into the claimant’s conduct undertaken by Mr Monaghan. As the claimant’s underlying actions were not disputed, the purpose of the investigation was to ascertain the claimant’s reasons for acting as he did, whether his conduct was potentially justifiable and hence determine whether it amounted to misconduct.

[311]I found Mr Monaghan to have been conscientious and thorough in his approach. He reviewed all the evidence provided from Project Stone and the claimant’s explanations. The only potential flaw was the fact that ultimately he did not speak to the claimant in person before concluding the investigation. While it may have been better to have at least tried to rearrange the investigation meeting one more time, this defect was minor. The claimant was able to make lengthy submissions in writing and Mr Monaghan took this into account before completing his investigation. It is also clear that he considered what the claimant said carefully, as he frequently gave the claimant the benefit of the doubt when considering the claimant’s explanation for his actions as relating to whistleblowing. Ultimately Mr Monaghan only concluded that four of the emails were of serious concern.

[312]The disciplinary process was then delayed but for understandable reasons, including the claimant’s ill health. When it did resume it was also through. Again, the claimant was able to submit lengthy written submission and three separate meetings were held where the claimant was able to explain his case.

[313]I also accepted that Mr Geale engaged with the issues in a diligent manner and the conclusions he reached were genuine. He spent a considerable amount of time reviewing the claimant’s submissions and speaking to him in person. He did not just accept Mr Monaghan’s conclusions but reached his own decision about each contested email, ultimately deciding that there was no basis for the claimant to send all 12 of the most serious emails to himself.

[314]Mr Geale did not accept the claimant’s explanations for why he sent the information to himself were satisfactory or justified the breach of ISAUP. The claimant had multiple opportunities the claimant had to explain why he sent the information to himself. Despite this he did not provide a clear account of how the 12 most serious emails were directly related to the whistleblowing complaint he made in March 2021. His explanations were generally vague rather than clearly setting out how the emails were evidence of the wrongdoing that formed the subject of his whistleblowing. During the meetings the claimant also described how he decided what information to forward in a relatively haphazard way, based on whether information looked like it may be relevant rather than making a considered decision. Based on what the claimant said during the disciplinary process I accepted that Mr Geale was entitled to conclude that the claimant’s breach of ISAUP was particularly serious and his actions were not justified.

[315]A breach of this policy is described as being misconduct so it was then open to Mr Geale to take disciplinary action. The claimant said that even if disciplinary action was warranted the disciplinary policy only lists a breach of the ISAUP as potential misconduct, not gross misconduct. The respondent’s position is that the list of types of gross misconduct in the disciplinary policy are just examples and it is not exhaustive. In this case the severity of the breach was so serious it was entitled to treat it as gross misconduct.

[316]On this point I accepted the respondent’s position. The ISAUP is a comprehensive policy designed to ensure that the respondent’s employees act in a way to ensure that the respondent’s information is kept secure. Breaches of the policy could be deliberate or accidental, minor or serious. It would not be reasonable to indicate that any breach of the policy may be gross misconduct. It is likely that much of the time a breach of the policy, even if deliberate, would only warrant a lesser sanction. However, as with other examples of general misconduct, it is possible that particularly serious incidents would warrant a harsher sanction and could amount to gross misconduct. For example, the respondent includes rude and abusive behaviour in the list of general misconduct. This is another example of possible conduct where there can be a spectrum from a single minor incident to very serious misconduct depending on what has actually occurred. It is not necessary to state that a particularly serious incident could also amount to gross misconduct.

[317]In this case the claimant has sent himself over 400 emails over a period of 3-4 months. Mr Geale also identified a number of exacerbating factors. The claimant had sent the information to himself deliberately, in a relatively systematic manner. It included information that was highly sensitive or confidential. Mr Geale also took into account the claimant’s own role, being responsible for data protection, and the fact the claimant had confirmed he retained the information. He decided that the claimant’s actions were the most serious type of breaches of ISAUP.

[318]I accepted that Mr Geale was entitled to take these matters into consideration and conclude that the claimant’s conduct was particularly serious. The matters he relied on were not disputed. It is self-evident from the basic underlying facts that the claimant’s actions went far beyond a minor breach of the relevant policy. I accepted that dismissal was within the band of reasonable responses in this case and the respondent was entitled to dismiss the claimant.

[319]Finally, in terms of the disciplinary process itself, there were no identifiable serious flaws. Mr Geale engaged thoroughly with the claimant who had multiple opportunities to put forward further information and arguments on his own behalf. There was then a through appeal process.

[320]For these reasons both the automatic unfair dismissal and ordinary unfair dismissal claims do not succeed. Time Limits

[321]The claimant started Early Conciliation on 9 February 2023 and it concluded that day. He submitted his ET1 on 31 February 2023. This means that any claim relating to acts or omissions that occurred before 10 November 2022 would be out of time, unless they formed part of a series of similar acts of failures and the lats act or failure occurred on or after 10 November 2022.

[322]The majority of the matters the claimant complains of, as set out in the list of disclosures appended to this judgment, occurred some time before 10 November 2022. The only acts that occurred after that date that are either expressly pleaded as being complaints are the following: 322.1. the alleged refusal in December 2022 to provide the claimant with written information about the outcome of the investigation and audit that was undertaken following the claimant’s protected disclosure (paragraph 29 of the list of detriments) 322.2. the refusal of the Freedom of Information Act request in January 2023; 322.3. the dismissal; and 322.4. potentially the delay in dealing with the second and third grievances, given that they were eventually concluded after the submission of the ET1, although there is no express claim about the delay with the third grievance.

[323]The claimant has argued that everything is part of an act continuing over a period of time or series of similar acts. I do not accept this is the case.

[324]Within the claimant’s case there are several distinct strands of complaints. These occurred over distinct identifiable time periods. These are as follows: 324.1. There are complaints about Mr Cobbett in general. The specific complaints about how Mr Cobbett acted, e.g. his conduct in supervision meetings, relate to events in late 2020 and early 2021. The last meeting relied on was March 2021. Mr Cobbett then had no further dealings with the claimant after he was suspended on 21 October 2021. 324.2. Complaints about the PIP. The PIP concluded in October 2021. There was then an allegation within the disciplinary process about the claimant’s non-engagement. This was separate from the PIP itself which concluded when Ms Paton provided the outcome. 324.3. Complaints about the handling of the whistleblowing. There are different elements to this. Much of the complaint relates to events in 2021 and early 2022. However, the claimant’s final dealings with Mr Whalley were December 2022, so it could be said there was conduct extending over a period in respect of this complaint. 324.4. Complaints about the first grievance. The grievance outcome was provided on 8 September 2021. The appeal remained outstanding. However, the claimant’s complaints about the first grievance were limited to the delay in the initial stage. 324.5. Complaints about the handling of the second and third grievances. These were ongoing when the claimant’s employment terminated. However, the claimant’s specific complaints relate the fact that the second grievance had not been completed before the claimant was suspended and the actions of Mr Conway in August 2021 when he confirmed the disciplinary would be heard first. The subsequent delay is not a separate allegation, but a consequence of Mr Conway’s decision. 324.6. The complaints about the suspension relate to events of October 2021, how that was handled and specific allegations about what was said or what the claimant was asked to do. This is distinct from the subsequent disciplinary process and dismissal.

[325]The above strands of complaint are all distinguishable. Different people are were involved and in respect of many of the matters there are clear end points. As noted above, the claimant has sought to argue that everything has connected as it was all a pattern of him being targeted due to his whistleblowing. I have already concluded that was not the case. These were distinct matters involving different decision makers whose reasons for their actions varied.

[326]The consequence of this is, irrespective of my findings above on the individual claims, the following claims were not submitted within the relevant time period: 326.1. All claims about Mr Cobbett’s actions. The claimant’s last dealings with Mr Cobbett were in October 2021 at the latest, so any claims would need to have commenced at some point in January 2022. 326.2. All claims about the PIP. This also concluded in October 2022 so any claim would need to have been commenced during January 2022. 326.3. The claims about the first grievance. This would need to have been commenced by 7 November 2021. 326.4. Claims about the suspension, including the actions of Mr Alderton. Any claim would need to have been commenced by 25 January 2022. 326.5. Claims about Mr Conway’s actions in respect of the second grievance. Any claim would need to have commenced at some point at the end of November 2022.

[327]As these are all claims for whistleblowing detriments time can only be extended if the claimant shows that it was not reasonably practicable for him to submit the claims within the time limit and he did so within such further period I am satisfied is reasonable.

[328]The claimant has not shown it was not reasonably practicable for him to have submitted the above claims within the time limit. On the contrary, the documentary evidence from late 2021, such as emails he sent in November 2021, make it clear the claimant was already contemplating legal action at that time. He was repeatedly saying in correspondence with the respondent that he was being subjected to detriments and he intended to pursue the matter. The claimant did not do so at the time.

[329]The claimant was employed in a senior professional role with the respondent. The documents from the time indicate he was clearly informed about the relevant legal issues and able to articulate his concerns. There was nothing within the evidence that indicates there was some reason why the claimant was unable to pursue claims in respect of the above matters within the relevant time limits. When asked about this during the hearing the claimant said he decided to pursue matters internally first. He accepted it was a deliberate decision not to pursue a Tribunal claim in late 2021 or early 2022.

[330]The claimant could have pursued claims about the matters he complains of that occurred before 10 November 2022. He chose not to do so. Therefore, he has not shown that it was not reasonably practicable to start those claims within the requisite time limit. I have made my findings in respect of those claims in any event and found against the claimant. For completeness I note that they also were submitted out of time and there are no grounds to extend time.

[331]The claims in relation to the dismissal and the refusal of the freedom of information act request were in time. In respect of the complaints about how his whistleblowing claim was progressed, I have accepted that this was a continuing state of affairs until the claimant was provided an update on 15 December 2022. Those claims still do not succeed for the reasons set out above. Approved by