Mr A Lancaster and Others v Mitie Group plc: 3200538/2023 and Others

EMPLOYMENT TRIBUNALS

Case No 3200538/2023

Between

(1) Mr A Lancaster (2) Mr I Lawal (3) Mr M Haque (4) Mr C BempahClaimant

Mitie Group PlcRespondent

Before

Employment Judge Crosfill

In person for claimant

Date 7 November 2025

JUDGMENT

[1]The Claimants claims for equal pay brought through Section of the Equality Act 2010 are dismissed upon withdrawal by the Claimants

[2]The Claimants claims brought through Section 44 and 48 of the Employment Rights Act 1996 are not well founded and are dismissed.

[3]The Claimants claims brought through Section 47B and 48 of the Employment Rights Act 1996 are not well founded and are dismissed.

REASONS

[1]The Respondent is a large company which provides, amongst other things, facilities management services. In 2021 it took over responsibility for the provision of security services at the Westfield Shopping Centre in Stratford, East London. The Claimants all worked as security guards at the shopping centre.

[2]The claims dealt with within this judgment were brought by all four Claimants as a ‘multiple’ and included an equal pay claim. That claim was withdrawn at the outset of the hearing. The claims that remain and which are dealt with within this judgment arise from two collective grievances in which the claimants were concerned and which they say amounted to protected disclosures and/or acts falling within section 44 of the Employment Rights Act 1996. The Claimants say that in retaliation for raising their grievances the Respondent has subjected them to several detriments. Essential Procedural History

[3]In order to understand the extent of the claims that have been brought it is necessary to briefly set out the procedural history. I record that during the hearing all parties proceeded on the basis that the scope of the claims was accurately set out in the case management order drawn up following a hearing on 11 July 2025 before Regional Employment Judge Burgher.

[4]The Claimants ET1 was lodged on 20 March 2023 by Mr Lancaster who identified that the claim was a multiple and named the other three Claimants on the claim form. Whilst the ET1 identified the nature of the claims as being an equal pay claim and a claim of relying on whistleblowing concerning health and safety concerns no particulars of the detriments said to have been suffered were set out. The ET1 named both Mitie Group plc and Unabail-RodamcoWestfield as respondents. Unabail-Rodamco-Westfield is the owner of the shopping centre. The claim against that entity was rejected because the Claimants had not obtained an ACAS early conciliation certificate naming that company. The Claimants sought to bring further claims against UnabailRodamco-Westfield and also Westfield Europe Limited but they were later struck out as having no reasonable prospect of success.

[5]At a preliminary hearing that took place on 18 July 2023 before EJ Mack the Claimants were ordered to provide further and better particulars of their claims. It had been intended that those particulars would include details of any detriments said to have been suffered by the Claimants as a consequence of anything raised in the grievances. It took two further case management hearings one before EJ Byrne and one before EJ Jones before the list of issues started to take shape. However, there were still issues which had not been clarified.

[6]A fourth preliminary hearing took place on 10 March 2025. That hearing had been listed to deal with an application by the Respondent to strike out the equal pay claim. That was heard by EJ Lewis who declined to either strike out the claim or make a deposit order. She was unable to deal with other issues due to a lack of time and directed Mr Haque and Mr Benpah to set out their claims on the detriments they were said to have suffered.

[7]A fifth preliminary hearing took place on 17 June 2025 before EJ Gordon Walker. That hearing was intended to deal with applications by the Claimants to strike out the Response and applications by the Respondent to strike out parts of the claim. It appears that a pragmatic approach was taken and EJ Gordon Walker dealt with finalising the list of issues and an application by the Claimants to rely upon additional protected disclosures and further detriments. She recorded her decisions in respect of the applications to amend within her orders at paragraphs 9 and 10 of the case management order and set out a list of issues which incorporated those decisions as a schedule to her order.

[8]At that stage, the final hearing had been listed for 15 days commencing on 18 July 2025. Due to a lack of judicial resources the Tribunal notified the parties that the final hearing would need to be postponed. On an application by the Respondent the matter was listed for a preliminary hearing before Regional Employment Judge Burgher on 11 July 2025. He was persuaded that the case could be completed within 11 days and he had identified me as being available to conduct the hearing. Regional Employment Judge Burgher drew up a final list of issues. He indicated his view that the equal pay claim had little reasonable prospect of success saying that, had there been time to do so he would have made a deposit order. He encouraged the Claimants to reflect on whether that claim should be withdrawn. As I have indicated above the Claimants decided to withdraw that claim doing so by email. I confirmed their intentions at the outset of the hearing.

[9]I proceeded on the basis that the list of issues drawn up by Regional Employment Judge Burgher set out the entirety of the claims that I needed to adjudicate upon save that the Equal Pay claim have been withdrawn by the Claimants.

The hearing

[10]In advance of the hearing the Respondent had sought permission for Victoria Winslade to give evidence via video link. Regional Employment Judge Burgher had directed that any such application needed to be supported by medical evidence. I was provided with a brief note from Victoria Winslade’s general practitioner. That email suggested that it would be detrimental to Victoria Winslade to give evidence in the presence of the Claimants. In emails sent on the morning of the hearing Mr Lawal and Mr Haque both asked to give evidence via video. Mr Lawal relied upon medical records within the bundle that suggested he suffered from anxiety. Mr Haque told me that he had been diagnosed with PTSD. I decided that there was minimal prejudice in granting the applications made in respect of all witnesses and that whether fully supported by medical evidence or not each witness would be able to give better evidence via video than in the presence of each other. I could not see any prejudice to the opposing party in allowing them to do so. During the hearing a further application was made by the Respondent to allow Mr Bland to give evidence by video. The basis of this was essentially to allow him to care for his children rather than travel to the Tribunal centre. At this juncture there was no opposition to this application and I permitted it.

[11]My only concern about permitting Mr Lawal and Mr Haque to give evidence remotely was the time that might be wasted if they had to travel between their homes and the Tribunal centre in order to use the video link. I proposed a solution to that by offering the possibility of setting up a further tribunal room where they could give evidence by video link. They both indicated that that was a suitable solution which saved a great deal of tribunal time while still accommodating their needs.

[12]The parties had exchanged written witness statements and had provided me with two electronic bundles. The first had a file name of Final Hearing bundle the electronic version had 2144 pages to which for additional pages were added without objection. There was a further bundle with the file name Disputed Documents Bundle which had 1677 pages. It is unnecessary for me to comment on why there had been a need for two bundles.

[13]In advance of the hearing Mr Lawal and Mr Haque had prepared some submissions which I read before hearing any evidence. After dealing with these preliminary matters I took the morning to read the witness statements and documents referred to within them having indicated to the parties that I would probably be ready to hear evidence at 14:00. In fact my reading took a little bit longer than that and I started hearing evidence shortly afterwards.

[14]I heard from the following witnesses: 14.1. Mr Bempah, he was employed as a security guard at the time that these claims arose. He told me that he has subsequently been dismissed by the Respondent but that is not a matter that he complains of in these proceedings. He had provided a witness statement which was drafted whilst the equal pay claim was live and much of his statement dealt with that issue however in his oral evidence he was able to describe his involvement with the two collective grievances and expressed his dissatisfaction at the outcome. 14.2. Mr Lawal’s witness statement dealt with the issue of equal pay but provided more detail of his involvement in grievances which were raised in May and November 2022. He then dealt with the treatment which he complains about in these proceedings. 14.3. Mr Haque’s witness statement included passages identical to his colleagues when dealing with the equal pay claim. He was not employed at the time of the first collective grievance in May 2022 but suggested that he had had some part in compiling a document that was presented in the course of the second collective grievance. He dealt only briefly with his complaints about the grievance process and outcome. 14.4. Mr Lancaster is a security guard and remains employed by the Respondent. His witness statement, in common with his colleagues, deals with issues of equal pay before turning to his involvement with the two collective grievances. He then deals with an incident that took place in February 2023 between himself and Victoria Winslade which, together with the subsequent disciplinary investigation, he says amounted to a detriment for raising the grievances. 14.5. Victoria Winslade was at the material time employed as the Training and Guest Experience Manager. She worked for the respondent between April 2022 and August 2023. She is said by Mr Lawal and Mr Lancaster to be one of the people who subjected them to detriments raising their grievances. She says in her witness statement that her difficulties in managing the claimants was a significant factor in her decision to leave her job. 14.6. Shozadul Islam was a Security Team Manager at the time of the events giving rise to this claim. In that position he was the direct line manager of the claimants. He is the person said by Mr Lawal to have been responsible for not allocating him shifts for a period after 25 November 2022. Mr Lawal says that Mr Islam continued to allocate him ‘keys duties’ after it became known that he had difficulty undertaking those duties because of a bad back. 14.7. Ian Martin worked for the Respondent between October 2021 and February 2024 as the Security Operations Manager. He was the person who heard the first and second collective grievances in 2022. Both Mr Haque and Mr Bempah complained that the outcome of those grievances amounted to a detriment. 14.8. Adeil Qammar has been employed by the Respondent since January 2012. In 2022 he was employed as a CCTV manager before being promoted initially to a role as an acting Security Team Manager before being appointed to that substantive role at the end of 2022 or the beginning of 2023. He was involved in the decision to remove shifts from Mr Lawal in November 2022. He was also said to be involved in allocating Mr Lawal duties involving keys after learning of Mr Lawal’s back issues. Finally he was one of the individuals who spoke to Mr Lawal about wearing a hat inside the shopping centre. 14.9. Robert Nicholas has worked for the Respondent since August 2021 and before that with Securitas who had held the contract previously. He was at the time the Senior Security Team Manager. He was involved in an email exchange with Mr Lawal in May and June 2023 concerning training. Mr Lawal complained that in his correspondence with other managers Mr Nicholas spoke about him in a way that he regards as derogatory. Mr Nicholas also dealt with his involvement in hearing a grievance brought by Mr Lawal against Mr Qammar relating to the decision to remove Mr Lawal from his shifts in November 2022 and his conduct of a return-to-work meeting in February 2023. Finally he had some involvement in discussions about Mr Lawall’s headwear. 14.10. Christopher Badr-Safdari at the time was a Security Team Manager. He was involved in investigating the incident that took place between Mrs Winslade and Mr Lancaster in February 2023. He ultimately decided that there was no disciplinary case to answer but Mr Lancaster complains about the amount of time he took to complete the investigation. He was also able to comment on Mr Lawal’s allegation that he was denied training opportunities. He cancelled two shifts that had been allocated to Mr Lawal in February 2023. His evidence dealt with the reasons for that 14.11. Finally I heard from Edward Bland who at the time was the Account Director responsible for Westfield Stratford as well as a number of other accounts. He was the person that heard the appeal in the second collective grievance that started in November 2022. His witness statement deals mainly with the issue of equal pay but goes on to deal with his involvement in that appeal. In addition he had some involvement in the decision that Mr Lawal would not be given paid leave for attending a trade union course. Mr Lawal says that comments that Mr Bland made before he was allocated the role of hearing the grievance appeal were derogatory and amounted to a detriment. My findings of fact

[15]Below I shall set out my findings of fact on the evidence that was presented to me. Where there is a conflict of evidence I must decide which version of events is more likely. In this section I shall deal predominantly with the question of what happened. I will go on to make further findings of fact about the reasons for any treatment in the section below headed discussions and conclusions.

[16]I do not intend to set out the entirety of the evidence that I heard. I was presented with a vast number of documents. I was not referred to many documents at all. Part of the reason for this was that the bundles included documents said to be relevant to the question of equal pay. In making these findings of fact I have read all the documents referred to in the evidence. That includes the documents listed in the back of each of the Claimants witness statements including many relevant only to the withdrawn equal pay claim. I have not read the bundles in their entirety because I was not asked to do so.

[17]Before I deal with the events that took place I shall make some general comments about the witnesses. This is a case where I consider that every witness who appeared in front of me had decided in entrenched terms which side they were on. With no exceptions I found the witnesses to be partisan and very defensive. At one point in his evidence, with a great deal of frankness and insight, Mr Bempah recognised that he was becoming defensive. That was true of almost every witness to some degree or other. Such high feelings are not unusual in litigation but taking such a partisan approach makes it very difficult to place any real confidence in the account of events that is given. I give some examples when dealing with factual disputes below. The TUPE Transfer

[18]The Westfields shopping centre at Stratford is operated by Unibail-RodamcoWestfield Group. It contracts out the provision of security services. The is more than one security provider. There is a general provider and a provider of security services for events. Up to 1 August 2021 the general security contract was held by Securitas. The contract for events was held, in part at least, by McKenzie Arnold Group Limited.

[19]On 1 August 2021 the Respondent took over responsibility for the provision of services formally provided by Securitas. All the Claimants, with the exception of Mr Haque, had been employed by Securitas and continued to work after the transfer for the Respondent. The Respondent’s grievance policy

[20]The Respondent had a grievance policy. I find that policy is well written and clear. It broadly follows the guidance provided by ACAS in the ACAS Code of Practice on Discipline and Grievances at work. It suggests that the first stage of any complaint should be to try and raise the grievance informally with a manager. The policy recognises that that will not be appropriate in every case. If the grievance cannot be resolved informally then the policy says as follows: ‘You’ll need to put your grievance in writing and give as much information as possible including,• Full details about your complaint or issue and any relevant facts

• The dates when incidents occurred and names of all the people involved if applicable

• What you’d like the outcome or solution to be You’ll then need to send your written grievance to your manager or, if this isn’t appropriate, the ER team.’

[21]On 27 April 2022 Mr Lawal sent an email to Mr Martin with the subject line ‘Request for a formal Grievance Meeting’. In the body of his email he said that he was writing to raise a formal grievance. In the two paragraphs that follow he referred to the fact that he considered that he was not receiving equal pay. A pay rise issue that was perceived to be ‘unethical’. In the second paragraph he made the suggestion that the Security Officers had been told in one-to-one meetings by Mr Adam Rallings, the Senior Operations Manager of Retail and Shopping Centre that they would be given a job retention bonus for staying with Mitie and that no such bonus had been paid.

[22]In his email Mr Lawal asked for a response within 14 days and indicated that he would wish to be accompanied at a grievance meeting by 2 to 3 work colleagues. Mr Lawal signed off his email on behalf of himself ‘and various security officers at Strathfield Westfield’.

[23]At the same time as he was asking for a meeting to discuss those grievances Mr Lawal was involved in organising a petition. At the point when the grievance meeting was held 27 security officers and CCTV operators employed by the Respondent had signed the petition. The signatures included Mr Lawal and Mr Bempah but not Mr Lancaster or Mr Haque (who was not yet employed by the Respondent). In the end some 57 security officers had done so. The heading on the petition was: ‘Petition on behalf of Security and CCTV operators employed by Mitie Group plc at Stratford job retention bonus and improved work conditions.’

[24]One issue that I need to resolve in respect of the petition was whether it was signed by Mr Qammar. Mr Qammar, at the time the petition was prepared, was a CCTV operator. On its face the petition includes a printed name of Adeil Qammer and a signature. When Mr Qammar gave evidence and was asked questions by Mr Lawal he was taken to the petition and initially said that he ‘recognised’ the signature. However, he went on to say that he had not signed the petition and had never seen it at the time. Mr Lawal put it to him that he had signed the petition and that his reasons for now denying he had done so were that he had taken the side of management following his promotions. Mr Qammar denied that was the case.

[25]I am not a handwriting expert and I should not place great weight on the fact that the signature on the petition bears more than a passing resemblance to that on Mr Qammar’s witness statement. If Mr Qammar is right and that the signature is not his then it means that somebody else has quite consciously used his name in order to bolster the strength of the petition. The petition was presented to Ian Martin who worked in the same building as the security officers and CCTV operators. Presenting a false petition would be an incredibly risky thing to do given how easy it would have been to check that all the signatures were genuine. It would also be thoroughly dishonest. I have come to the conclusion that it is more likely than not that Mr Qammar did indeed sign the petition as Mr Lawal put to him. I also find that his motivation in denying that he did so was the fact that he has now taken the side of management. His refusal to acknowledge that he had in some respect sympathized with the position taken in the first collective grievance is an example of the entrenched thinking that I have referred to above.

[26]The Respondent has a dedicated Human Resources Department. The record keeping of that department’s interactions with the Respondent’s managers operates through a system of a ‘ticket’ being raised. It was suggested by Mr Lawal that the managers would raise a ticket when a grievance was submitted but that the outcome of the grievance was decided by the HR Department with or without the input of more senior managers. There was no evidence to support the suggestion that the outcomes of the grievances I heard about were determined by HR. I find that the HR Department’s involvement in a grievance or disciplinary matter was limited to giving advice as to the process that needed to be followed as opposed to making any decisions. The assistance however would include drafting correspondence on occasions. An example of this is where a grievance outcome was decided upon and the manager would record his or her decision on the ticket system which would then be picked up by the HR Department and a formal outcome prepared. That needed to be signed off by the decision-making manager.

[27]The Respondent’s grievance policy sets out guidance as to how a collective grievance might be raised or dealt with. It suggests that where more than one person has the same concern this might be dealt with as a collective grievance. It goes on to say that the employee will be asked whether they want their grievances to be dealt with on a collective basis. If they do then the suggestion is that a spokesperson should be appointed by the group to represent the whole group at the grievance hearing and any subsequent appeal. It suggests that whilst it is possible that the whole group might be invited to a meeting that would depend on the nature of the grievance. The ordinary process would be that the spokesperson would be invited to the grievance hearing and they would be expected to liaise with the wider group.

[28]On 17 May 2022 Mr Martin sent an email to Mr Lawal informing him that he was looking to arrange a formal grievance hearing. He asked which colleagues were involved in the grievance. He went on to say that either everybody could be present or that they could agree amongst themselves to appoint one person to attend and act as a spokesman. That email was broadly in accordance with the policy although it takes a generous view about who might wish to attend the meeting. On 18 May 2022 Mr Lawal responded saying that he, Kadir, Mr Lancaster and Ali. Would wish to attend the meeting.

[29]On 24 May 2022 Mr Lawal sent further details of the grievance to Mr Martin in a document. Under a heading ‘issues unhappy with’ were the following six bullet points:  ‘Unpaid Job retention/Christmas bonus?  Not received Pay rise as promised  Not on a salary that reflects the current job role and current climate  Night shift rate should be higher than day shift rate  Work Conditions/ Pay structure  A range of other factors to be elaborated in the formal Grievance Meeting’

[30]The grievance meeting took place on 26 May 2022. The hearing was conducted by Mr Martin and Mrs Winslade attended to take notes. It is the practice of the Respondent, which was followed in every meeting that I heard about, that there was a notetaker who would produce non-verbatim summaries of what was discussed in the meeting. Once prepared those summaries would be sent to the employees concerned and they were invited to make any corrections or additions. As such I can have considerable confidence, where a matter is recorded within the notes, it contains a summary of what was discussed. I can be further confident that if the notes do not record some important matter then it is unlikely to have been raised during the meeting as, had it been raised, the omission would have been corrected when the notes were sent to the employees. That said, the notes do not purport to be anything more than a summary of the discussions.

[31]Mr Lawal, Mr Bempah and Mr Lancaster attended the meeting on 26 May 2022 together with two further colleagues. One colleague, Kadir, who had been expected to attend did not but the others confirmed that they spoke on his behalf. Mr Martin took no objection during the meeting to the fact that the employees who had attended differed from the list that had been expected or that the numbers had increased. In his evidence he said that he had made an exception for the employees. I accept that evidence and find that he found it rather unsatisfactory having to deal with numerous voices in the meeting.

[32]At the outset of the meeting the employees summarised their concerns as follows: 32.1. they complained that they had not been paid a job retention bonus which they said that they had been promised; and 32.2. they complained that they were not paid at the same rate as security guards doing the same work at Westfield in west London having been promised that they would be given back pay. 32.3. They then indicated that they thought that their current rate of pay did not reflect their job roles, duties and key responsibilities when taking into account the higher rate of inflation prevalent at the time. 32.4. They suggested that the pay rate for a night shift should be higher than that for a day shift. 32.5. They complained that the Respondent had altered the system operated by Securitas whereby they were paid at the end of every month and had instead paid them on a four weekly cycle. 32.6. They suggested that the working conditions placed them at risk and under pressure. 32.7. They suggested that they should be paid a higher rate of pay for overtime. 32.8. They complained about the amount of holiday they were given suggesting it did not reflect the hours of work. 32.9. The notes record them saying: ‘standards are lower but all on the same pay rate. Inadequate training’.

[33]It is clear from the notes that followed that training was the first issue that was discussed after the introduction. The notes record Mr Martin informing the employees that the Respondent valued the feedback on training but suggested that individual issues were raised with the Security Team Managers. He went on to say that the Respondent was continuously reviewing training delivery. The Claimants suggested to Mrs Winslade that given that she was responsible for delivering training it was inevitable that she would feel that their description of the training as inadequate would be a criticism of her personally causing her offence. Mrs Winslade said that this meeting had taken place within months of her starting her new role. She said that in her view it takes years in order to put a robust training plan in place. She said that she would not be in the least concerned that the employees regarded the training at that point as inadequate. I do not consider that anything that is recorded in the notes of the meeting or indeed anything said in the evidence reflected badly upon the efforts made by Mrs Winslade to organise a training program. The Claimants did not give any example of any personal failure. I accept Mrs Winslade’s evidence that she was broadly in agreement with the issues raised by the Claimants and took no offence at this being raised. That is consistent with Mr Martin indicating that he valued the feedback that was given.

[34]One area where the notes record Mr Martin pushing back is that the employees complained that they were expected to train others. He is recorded as saying that was correct and that it was a reasonable expectation for established employees to mentor new employees. At the conclusion of that particular discussion Mr Martin is recorded as saying that the Respondent was reviewing and updating the training but accepted that there was a need for better communication.

[35]The notes record that at that stage Mr Lawal suggested that the purpose of the meeting was to discuss the pay rise. He suggested that morale was low and that some officers were struggling financially. That led to a discussion about the rate of pay. Mr Martin is recorded as telling the employees that a pay rise had been confirmed that would be backdated to November 2021 for Security Officers. He explained that there had been a delay because it required a variation to the contract between the Respondent and Westfield. The response of the security officers was to say that they had been hearing the same for many months.

[36]The employees then went on to say that they believed that they should be paid £15 an hour instead of the £12.20 that had been offered. They sought to justify that by reference to the shortage of staff, success in dealing with the police and the high footfall at Westfield Stratford in comparison to Westfield London. In seeking to justify a pay increase there was reference to the high crime rate in Newham and reference to stabbings, shootings and other violent crimes.

[37]The discussion then moved onto the practice of paying wages every four weeks. The employees expressed their dissatisfaction with that and suggested that it meant: ‘monthly wage officers have to work with not adequate rest leading to burnout, irritable behaviour and a high turnover of staff’. I asked the Claimants to explain to me why being paid every four weeks involved Security Officers having to work without adequate rest. The explanation that was given, mainly by Mr Lawal, was that there were fewer working days before any cutoff date for pay. That is probably correct but I struggle to understand why being paid more regularly meant that officers had to work more to generate the same amount of pay. I do understand that being paid on a four weekly cycle might be inconvenient to anyone who had set up monthly direct debits. I accept that the system of being paid every four weeks was unpopular. Shortly after the grievance was brought the Respondent reverted to paying employees monthly.

[38]After a lengthy discussion about low morale caused by pay the discussion turned to the issue of the retention bonus. The employees accepted that they had been paid a bonus but believe that to have been a Christmas bonus which they had always received. Mr Martin is recorded as telling the employees that the bonus that they had been paid had been stipulated by Westfield as a retention bonus although he accepted that in previous years it had always been paid at Christmas and was regarded as a Christmas bonus. In short he told the employees that they had been paid what had been promised. I find that the issue was raised by the employees because they genuinely believed that they had been promised something in addition to the ordinary Christmas bonus. I conclude that the Respondent did not intend to convey that impression but, through poor communication, left the employees with the impression that they had not received what they had been promised. The employees pressed for some form of compensation and Mr Martin agreed to go away and investigate the matter having taken some advice.

[39]Towards the end of the meeting Mr Lawal summed up the position taken by the employees and raised a number of points. All points related to pay in some form or other.

[40]Mr Martin sent final outcome letters to all of the participants in the collective grievance on 6 July 2022. The grievance outcome letter included informing the employees that if they wish to appeal they could do so and that the appeal would be heard by Mr Bland.

[41]The structure of the grievance outcome letter followed the bullet points raised by the employees in advance of the meeting. Mr Martin recorded the following conclusions: 41.1. in respect of the job retention/Christmas bonus he held that the bonus that was paid was all that was due. He accepted that many of the employees believed that something more had been promised. He partially upheld the grievance but only because he formed the view that the communication could have been clearer and set out in writing. His outcome letter sets out the fact that there were now engagement forums in order to address these matters before ‘any conclusions became entrenched’. 41.2. He then turned to the complaint that the promised pay rise had not been implemented. He informed the employees that the contract variation that was necessary had been completed and that they could expect the pay rise to be made with a backdated lump sum. He partially upheld the grievance noting that there had been a disparity in pay between the two Westfield sites in London which had subsequently been resolved. 41.3. He then turned to the issue of payment every four weeks. He informed the employees that a decision had been taken to move back to monthly payment and would shortly be implemented. On that basis he partially upheld the grievance. 41.4. Mr Martin did not accept the suggestion by the Security Officers that they should be paid £15 an hour. He pointed out that they had recently received a 6.8% pay rise but accepted that this did not withstand the current cost of living crisis. He said that the rate of pay was essentially beyond the Respondent’s control because they worked within the parameters of the contract agreed with Westfield. He did not accept the employees’ arguments that they were expected to undertake additional duties save that they had been expected to take on more training and mentoring than in the past. He suggested that in future volunteers might be sought for these duties as developmental opportunities. Overall he did not uphold any part of the grievance relating to a pay rise. 41.5. The grievance in respect of revised rates for night duties and overtime shifts was not upheld. Mr Martin suggested that the matters raised by the employees could be considered in any future pay reviews. 41.6. The final point dealt with in the outcome letter referred to the petition which Mr Martin described as being ‘for pay, bonus and conditions’. He then set out a number of bullet points. He records that Mr Lawal had, on 16 June 2022, sent him an updated version of the petition which now had 57 names on it. In his covering e-mail Mr Lawal referred to the proposal to raise pay to £15 per hour before referring to: ‘Work conditions included [sic]: change to pay structure/date, new uniform and other issues discussed in the grievance meeting on the 26.5.22’. Mr Martin in his outcome letter said that a bulk purchase of uniform had been received in early June and had been distributed. He then went on to deal with some issues which he says in his outcome letter referred to comments made ‘in person’. I find that he is referring to matters which were raised in the meeting but not fully captured in the notes. He refers to 4 issues raised by the employees in respect of their rest facilities. It is clear that the employees had raised questions about plumbing issues in the male toilets and the furnishing in the rest area. He informed the employees that a proposal had been made for new security team accommodation. 41.7. He ends his outcome letter by reminding the employees that monthly engagement forums had been established for the purposes of raising discussing and addressing issues practically and collaboratively.

[42]In dealing with the petition within his outcome letter Mr Martin refers to the petition being presented with a ‘vague and broad reaching statement header’. Mr Lawal and the other Claimants categorise this as being dismissive. I consider that the heading of the petition is undoubtably vague it does not set out any details about what changes to terms and conditions it supports. I find that the use of this language within the grievance outcome letter is simply factual and that it was intended as an explanation for the fact that as Mr Martin goes on to say ‘clarity was sought as the demands being petitioned for’.

[43]The employees did not seek to appeal the decisions that were taken by Mr Martin. The pay rise that had been promised was eventually confirmed by a letter to the employees on 17 June 2022. As I have previously indicated the pay period was changed to monthly payments. Events between the first and second grievances

[44]On 18 May 2022 there had been an incident at work where Mr Lawal had had a disagreement with a colleague. That led to the instigation of disciplinary proceedings which were concluded at a hearing conducted by Mrs Winslade on 20 July 2022. She recorded in her outcome letter that Mr Lawal had displayed unprofessional behaviour within the workplace using language that could be identified as threatening. In her written evidence she said that Mr Lawal had a disagreement with a colleague and suggested that the matter was taken ‘outside’. She gave Mr Lawal a first written warning having taken into account Mr Lawal’s honesty throughout the disciplinary proceedings. Mr Lawal does not suggest that these actions were taken as retaliation for any disclosures that he might have been involved in. I find that he has accepted that on this occasion he did not behave as well as he might have done.

[45]Mr Haque started his employment as a Security Officer on 20 October 2022. Mr Lawal’s issues with his back

[46]On 17 November 2022 Mr Lawal sent an email to Mr Islam in which he said: ‘Due to constant back pains from lifting barriers and bending over to put on escalators I would like to be excused from lifting barriers and putting on escalators starting from today effectively. I have tried to work through the pain and I wanted to assist Westfield shopping centre and my colleagues but sadly my back can’t take anymore. I can get a doctors note if it is required also? Can STMs and the control room team be briefed and informed about this situation?’

[47]Mr Islam was not at work on the 17 November 2022. For that reason he did not respond to Mr Lawal’s email. Mr Lawal says in his witness statement that he notified an individual called Emmanual Kamara that he had suffered a back strain injury at work. That suggestion had not been trailed in the ET1 and was not directly relevant to the issues I need to determine. However, I am satisfied that Mr Lawal did draw attention to his back pain. I am further satisfied that he was not required to do the duties that he had identified. I reach that conclusion because, when he raised a grievance about being removed from his shifts, he referred to it having been possible for him to have continued working with the reasonable adjustments that were initially put in place.

[48]Mr Lawal later suggested that there had been a failure to record a workplace accident. I am not surprised that, given what Mr Lawal wrote in his email, it was not recognised that he was suggesting that he had had an accident at work as opposed to finding tasks difficult because he had a bad back. There is clearly a distinction between work tasks becoming difficult because of a bad back and having an ‘accident’.

[49]On 21 November 2022 Mr Lawal sent a further email to Mr Islam which was copied into the Duty Security Managers inbox. In that email he said: ‘Effectively as of now I will not be able to do things that compromises [sic] my back pain such as lifting, pushing, or moving any sort of barriers, closing, unlocking, locking, or opening of any doors such as m1-m2…. or any door of that nature’. He went on to security team managers and control room operatives could be briefed on the matter and that his difficulties be reflected in the deployment/allocation sheets. In a somewhat litigious style he signed off that email adding the words ‘All-Rights-Reserved’ at the foot of the email.

[50]Mr Lawal’s e-mail of 21 November 2022 prompted a response from Mr Qammar who simply asked him to send across ‘the doctors note’. I find that he had understood from Mr Lawal’s first email that he was going to obtain a medical certificate. Mr Lawal did not respond at all.

[51]On 25 November 2022 Mr Qammar spoke to Mr Lawal and informed him that he was going to be stood down from his shifts. Neither Mr Lawal nor Mr Qammar have told me very much about the conversation. I infer that the reason that was given to Mr Lawal was that it was thought that he was unfit to carry out his duties and that he should not carry out work without a medical certificate.

[52]On 29 November 2022 Mr Qammar sent a further email. He asked Mr Lawal whether he was feeling better. He went on to say, ‘Did you manage to get a sick note from the doctors? If so can you please forward this to me’.

[53]On 6 December 2022 Mr Lawal sent an email to a number of individuals including Mrs Winslade in which he questioned the legality of the decision to stand him down from four shifts which he had anticipated doing. The subject line of the email was ‘Breach of Contract and Withheld of[sic] wages’. Mrs Winslade responded on the same day. She said that ‘given the serious nature of your condition’ that Mr Qammar had asked that he attend his GP. She referred to having a duty of care and the fact that the role of a security officer had a high likelihood of conflict resolution. She said that ‘we do not wish to place you in a higher risk of worsening this’. The Second Collective Grievance

[54]On 17 November 2022 Mr Lawal sent an email to Mr Martin together with a number of other individuals including Mrs Winslade, Mr Bempah, Mr Lancaster and a trade union official from the GMB. The subject line of the email was: ‘Issues Regarding Pay and Work related Issues’. In the body of the email Mr Lawal simply stated that the Security Officers wanted to have a formal meeting ‘to discuss issues regarding pay and other work-related issues’. He went on to say a small number of security officers would be attending the meeting to discuss the issues brought up by their fellow officers. No details of what the grievance might entail are given in that email. The context was that the first collective grievance which also concerned pay and terms and conditions had been concluded in July 2022.

[55]Mr Martin replied to Mr Lawal and his colleagues on the same day. His emails started with the sentence: ‘I particularly appreciate the challenges of the ongoing economic climate but also recognise we have been over these subjects previously; we cannot continue a perpetual cycle of going over old ground’. Mr Martin goes on to set out what he regarded as progress in dealing with issues raised by employees. He suggested that matters could best be dealt with if they were initially raised with the Security Team Managers. Mr Lawal suggested that this was a dismissive approach. I disagree. I consider that it is entirely understandable that given the absence of any detail in the email sent by Mr Lawal it was assumed that the reference to ‘pay and other work-related issues’ would cover the same ground as had been discussed within the first collective grievance.

[56]Mr Lawal clearly understood that Mr Martin thought that he was referring back to issues that have been discussed within the first collective grievance. He replied to Mr Martin and said this: ‘Thanks for replying to the previous email. Your response has been noted, however the issues are new issues and concerns that we did not discuss in the previous grievance meeting and can only be dealt with by Senior management of Mitie’. Mr Lawal did not go on to explain what new grievances he was raising. It would have been fairly straightforward for him to have done so. Mr Lawal tried to suggest that he needed to speak to other security officers before he could set out what the grievance was about. I do not agree. If he did not know what the actual grievances were he could, and should, have waited until he did.

[57]Mr Martin sent an e-mail on 18 November 2022 in which he asked Mr Lawal what the ‘pay and work related issues’ were. Mr Lawal responded at 11:22 on the same day. He simply repeated that the security officers wanted to discuss pay and numerous work related issues. He said that those could be elaborated upon at the grievance meeting. Again he included the phrase ‘all rights reserved’ under his sign off. Mr Martin responded having copied in passages from the grievance policy and in particular the section setting out that it was necessary for an employee bringing a grievance to give details of what it is all about. This prompted a further e-mail from the Claimant. He said: ‘As this is a Collective Grievance I can not provide any more information in regards to the matter you have asked for until the Grievance meeting commences, where other Security officers can raise their issues and concerns collectively’. He went on to suggest that this was what had occurred during the first collective grievance.

[58]Ian Martin sent a further e-mail on 18 November 2022. He stated that the first collective grievance meeting had taken place with a list of specific points that were discussed and a list of attendees. He acknowledged that further points were raised in the grievance but said that these were discussed ‘in the spirit of supporting progression’. He asked Mr Lawal to provide the information he had requested about the grievance.

[59]On 20 November 2022 Mr Lawal sent Mr Martin an e-mail. He identified 6 potential attendees including Mr Lancaster and Mr Benpah. He then said that the grievance was regarding:  ‘dispute and unhappy over pay and working conditions set by Mitie  dispute over terms of employment and workplace rules set by Mitie  dispute with roles and duties asked to do as part of our job  disputing and unhappy about workload  Dispute and unhappy about health and safety measures Security Officers believe they have been exploited by Mitie and possibly URW in various different ways and are unhappy about the current pay rate.’

[60]I find that despite Mr Martin asking for details of the grievance this e-mail still gave only the vaguest details of what might be discussed. The evidence before me did not suggest that there had been any real effort to raise any concerns informally.

[61]On 26 November 2022 after consulting with the HR Department Mr Martin sent Mr Lawal a letter by e-mail. In response Mr Lawal sought to clarify the differences between the first and second collective grievances. In his e-mail of 26 November 2022 sent at 12.02 Mr Lawal suggested that there were four broad topics which the security officer wished to raise. He then followed that up with a further e-mail at 12:47. He suggested that there should be a grievance hearing within 7 days and is critical of Mr Martin for delaying in arranging a meeting. He continued to sign his e-mails saying, ‘all rights reserved’. Mr Martin responded on 28 November 2022 pointing out that the description of the grievances remained ‘exceptionally broad’. He provided some information about the issues raised and asked how the complaints were put. Mr Lawal then responded suggesting that Mr Martin was endeavouring to conduct the grievance by e-mail. Mr Martin responded on the same day saying: ‘You have confirmed that they are completely new grievances so, as per my previous reply today and preceding email 18/11/2022 I am politely requesting that you clearly specify the full details about your complaint or issue and any relevant facts in accordance with the Grievance Policy which was also sent. As soon as we have this I will be able to proceed, arrange and send invites to the in person meeting’.

[62]Mr Martin had been seeking the advice of the HR Department in relation to his responses in respect of the grievance. On 28 November 2022 a member of the HR team Michelle Pincock sent an e-mail to undisclosed recipients where she said; ‘I’m obviously not that close to this one but being brought in as this is a problematic group of people for the management team to actually continue to manage’. Her e-mail went on to give advice. She suggested that somebody needed to check that ‘we are doing the right thing’ the remaining parts of her letter make it clear that she is referring to the processes and not the substance of the grievance. She says that, unless the employees have been told otherwise a suggestion should be made that they appoint one representative. Whilst the Claimants have taken exception to the description of them as a ‘problematic group’ I find that Ms Pinnock was not expecting her e-mail to be disclosed to the Claimants. She wrote it in circumstances where it had reasonably appeared that Mr Lawal was seeking to reopen the first collective grievance and had needed considerable persuasion to give even the broad details of the second grievance.

[63]In an e-mail sent at 19:20 on 28 November 2022 Mr Lawal distilled the grievances into two broad issues. These were: Point one - The Collective Grievance is about Security Officers doing duties that are not part of our job roles, not part of our job description. Whether Mitie group plc have or haven’t instigated any new T&C’s, conditions or workplace rules is not what is being disputed , the dispute is Security Officers believe they are being exploited forced to do roles not part of their job description. The outcome or solution is to be effectively be relived of roles that is not stipulated in our contract, not part of our job role/ job description. These points can be discussed further in a face to face Collective grievance Meeting. Point two- The dispute about health and safety is in regarding to the temperatures in the FCC, preservation of water and filter in FCC, not enough bins in FCC not being regularly changed and lack of risk assessments in other health & safety matters. The desired outcome/ solution would be to improve and implement all points bought up in the face to face Collective Grievance meeting where we collectively can further discuss these issues.

[64]At this point I find that Mr Martin felt that he had sufficient clarity to proceed. The security officers who Mr Lawal had copied into the correspondence, including Mr Lancaster and Mr Bempah, were sent an invitation to a meeting but were asked to nominate a spokesperson in accordance with the grievance policy. They were informed that they were entitled to be accompanied by a trade union representative. The hearing was initially fixed for 2 December 2022. Mr Lawal took up the opportunity to be represented by a Trade union representative from the GMB and asked for the time of the meeting to be changed. Mr Martin agreed to change the meeting to the earliest date proposed by Mr Lawal which was 9 December 2022.

[65]In advance of the meeting on 9 December 2022 the security officers compiled a document that had 49 issues or concerns. Some of the points set out in the document corresponded at least to an extent with the issues that had ultimately been identified by Mr Lawal. A significant number of others were outside the scope of what had been indicated. The additional issues included for example the calculation of holiday pay with a suggestion that the Respondent had not implemented the decision in Harpur Trust v Brazel.

[66]Mr Lawal attended as the spokesperson of the employees concerned in the collective grievance. At no stage has there been any clarity on whose behalf the grievance was raised other than the individuals copied into Mr Lawal’s various e-mails, Those individuals included Mr Lancaster and Mr Bempah but not Mr Haque. A Mr Charles Pittway attended the meeting as a representative of the GMB. Mrs Winslade was appointed as note taker. Shortly after the meeting started she had a panic attack. She says, and I accept, that she was unable to deal with the meeting with Mr Lawal as she found him so difficult to deal with. It is not suggested by anybody that the meeting was not conducted in a perfectly civil way.

[67]The process for compiling a record of the meeting was the same in this grievance as in the first collective grievance. Mr Lawal was sent a copy of the notes. He suggested a number of amendments the majority of which Mr Martin accepted and then the notes were finally agreed without any reservations. They are clearly not verbatim as the meeting lasted 1 hour and 23 minutes and the notes are just 6 pages long. However, for the reasons I have given above I am satisfied that all of the important points have been captured.

[68]Mr Laval sought to introduce the document with 49 points in it. Mr Martin told Mr Lawal that he wanted to follow the grievance policy and deal with the issues that had been set out in writing in advance. He pointed out that this had been pointed out ‘multiple times’. Mr Martin made it clear that his refusal to deal with the list of 49 points did not preclude them being brought up through ‘appropriate means’. Mr Lawal is recorded as saying that he had not realised that was the case. Mr Pittway is recorded as agreeing that any questions should have been sent in advance of the meeting. He ‘concurred’ with Mr Martin’s advice and said that the list of issues would be reviewed and reconsidered after the meeting. At the conclusion of the meeting Mr Martin repeated his suggestion that if the grievance participants wanted to raise other matters they could do so if they thought it necessary.

[69]Mr Martin went through the grievance dealing with the two points in turn. The first point was broadly that the security offices felt that they were being asked to take on duties in excess of what was contractually required. Mr Martin asked Mr Lawal to expand upon that and Mr Lawal described a broad range of duties from turning on the escalators through to crowd control. Mr Pittway interjected and said that risk assessments should have been prepared for turning on escalators. Mr Martin told him that they had been. That was factually correct. A copy of the risk assessment for escalators was included in the trial bundle. Mr Martin asked Mr Lawal what he saw as a solution to the first issue raised in the grievance. Mr Lawal said that he thought more security officers needed to be recruited.

[70]Mr Martin then turned to the second point raised in the grievance. He said that he thought that there were two parts within that second point. The first concerned identified issues such as the temperature in the Security and Fire Control Center, water filters and bins he called that 2a. The second was identified as a lack of risk assessments and other health and safety matters, he referred to that as 2b.

[71]When Mr Martin introduced the topic, 2a, there was an intervention by Mr Pittway. He asked Mr Lawal if he had reported any of the issues previously. Mr Lawal said that he had not. Mr Pittway then said that these sorts of issues needed to be reported and that the issues were straightforward and relatively low level. He said that they did not need to be raised in a grievance. He suggested that things like emptying bins were a matter of collective responsibility. The discussion that followed appears to have been collegiate and constructive. Mr Martin agreed to raise issues with the cleaning team and advised that the air conditioning with heating was now working in the rest area.

[72]The minutes of the meeting record that Mr Martin then moved on to ‘Point 2a’. Mr Lawal agreed that that was a typing error and that the conversation turned to what Mr Martin had identified as Point 2b. Mr Lawal opened the discussion referring to a general lack of risk assessments and after-care. Mr Martin asked him to be more specific. Mr Lawal then raised the issues of the temperature within the shopping centre. He questioned whether there was a legal minimum and referred to the provision of uniform. Mr Martin then said that he would not be revisiting the question of uniform because that had been dealt with in the first collective grievance. He said that gloves had been delivered and woolly hats were on order and were expected imminently. The minutes of the discussions that took place on the issue of uniform are clearly very condensed. I find that there was a discussion about the uniform guidance and in particular the fact that different guidance applied to those working outdoors or near the exit doors. It appears there was also a discussion about post-incident procedures. I understand that to mean care for the security offices who had been involved in potentially traumatic incidents.

[73]The meeting then turned to the issue of risk assessments that had been raised by Mr Lawal. The minutes record that he asked how risk assessments were formulated and what they covered. It does not appear that he specifically complained about a lack of any particular risk assessment. The minutes then record a joint discussion where it is said that both Mr Martin and Mr Pittway described the formulation of risk assessments. After that the minutes record Mr Martin asking Mr Lawal whether he had any specific concerns regarding issues not covered by risk assessment. Mr Lawal raised the issue of second-hand furniture in the staff rest area that had been procured from a vaccination centre used during the Covid pandemic. Mr Martin is recorded as saying that this was a stopgap and had been an improvement on what had been in place. There was a proposal to move to a larger facility in the Unite building.

[74]Mr Lawal then returned to the issue of ‘after-care’. He referred specifically to the rise in suicides and asked what Westfield and the Respondent were doing about this. Mr Martin referred to guidance that had previously been communicated. He suggested that after-care was provided by the duty management doing welfare checks and a debriefing together with signposted to specialist support services including a Traumatic Advice Line and the Employee Assistance Program. He referred Mr Lawal to the staff handbook. The minutes record that there were at this stage positive comments made by both Mr Lawal and Mr Pittway. I am satisfied that, at least at the time, Mr Lawal recognised that Mr Martin had dealt with the queries that he had raised.

[75]The final topic raised by Mr Lawal was a request that the security officers were provided with lighter body armour. That was dealt with principally by Mr Pittway. He is recorded as saying that at present the security office were issued with top level body armour that had been the subject of consultation. It appears that he at least considered that the Respondent had provided suitable protective equipment. Mr Martin is recorded as saying that uniform was something which was constantly reviewed and he would take on board the feedback.

[76]I have summarised the discussions that took place at the grievance hearing at some length. I find that Mr Martin gave Mr Lawal every opportunity to explain what his grievance was about. It is clear that on a number of issues a degree of consensus was expressed during the meeting. The Claimants were unable to point to anything which indicated that Mr Martin was not prepared to listen or consider any of the points that are being raised in advance of the meeting.

[77]The process of agreeing the minutes lasted until 16 December 2022. Mr Martin produced an investigation report by 3 January 2023. Mr Martin provided an executive summary. He said that the grievances related to the security officer being expected to carry out duties outside their job description was not upheld. He then said that he had partially upheld the grievances relating to the concerns relating to the break room as they had been legitimately raised. He went on to say that they could have been resolved more quickly had they been raised informally.

[78]It is clear from the report produced that Mr Martin dealt with the first part of the grievance by looking at a document entitled Westfield Security Officer General Duties Assignment Instruction. He concluded that the duties referred to by Mr Lawal all fell within the expected job role. He concluded that the full range of duties was the same as had been undertaken when Securitas held the contract.

[79]He then deals with the grievances that were raised about the Security and Fire Control Centre suite (including the staff rest area.) He stated that informal resolutions had not been sought before the grievance was lodged. He had spoken to the cleaning contractor Operations Manager who had said that additional cleaning would be carried out if he was notified of any issue. He said that there was a supplementary air conditioner which could provide heating within the rest room and that it had been reported as working during a recent cold spell. He acknowledged that a water filter for drinking water required replacement but pointed out that tap water is drinkable. Mr Martin recorded in his report that the issues around the rest area were raised constructively.

[80]Mr Martin set out details of the risk assessment process undertaken by the Respondent. His recommendations included a suggestion that any such issues are raised initially with the duty managers or at staff engagement opportunities. He encouraged the staff to engage proactively and informally at an early stage.

[81]I find that there was no unreasonable delay between the meeting that took place on 9 December 2022 and preparing an outcome report on 3 January 2023. It is clear that Mr Martin needed to speak to the cleaning contractor and to interrogate documentation in order to reach the conclusions that he did. He was preparing this report over the Christmas period. In all, I consider that he worked reasonably quickly to produce his report.

[82]There was a short delay between Mr Martin completing his report and him sending it to Mr Lawal on 12 January 2024. I infer that the reason for the delay was that the outcome letter was run past the HR Department as there was a need to offer a right of appeal to a named individual. The individual named in the first iteration of the letter was Mathew Pitman who was the Security Operations Manager for Westfield’s shopping centre in West London.

[83]Mr Lawal pursued an individual grievance. One aspect of this grievance was the delay in receiving the outcome of the collective grievance decision. That aspect of the grievance was not initially upheld but was upheld on appeal to Mr Pitman the Operations Manager of Westfields in West London. He said that ‘there should have been no delay in responding to the collective grievance’. Mr Martin says, and I accept, that in reaching this conclusion Mr Pitman did not ask him for any explanation. Mr Pitman appears to have considered that the grievance was presented on 17 November 2022. That is a very generous approach to Mr Lawal. The initial stages of the process were as I have said above included extracting the subject matter of the grievance from Mr Lawal. I find that Mr Pitman’s conclusion that there was culpable delay in this respect is unrealistic and unfair to Mr Martin. Mr Martin’s involvement in the Claimant not being offered shifts and Mr Lawal’s sick leave.

[84]The Claimant raised the fact that he was not being offered shifts with Mr Martin when he attended the grievance meeting on 9 December 2022. On 10 December 2022 he sent Mr Martin an e-mail saying that he was fit enough to work. He signed himself off as ‘all rights reserved’. Mr Martin responded on 11 December saying; ‘Please report in directly to the Duty STM and your Line Manager as instructed in discussion on Friday morning; they can coordinate your return to work and shift scheduling going forward.’. Mrs Winslade and Mr Nicholas were copied into that e-mail. I find that it was clear that Mr Martin had accepted that Mr Lawal was fit enough to do some work based on his assertions. Mr Martin followed that up on 17 December 2022 with a reminder that Mr Lawal needed to speak with a duty Security Team Manager to coordinate a return to work and that he had pre-rostered shifts from Monday 19 December 2022.

[85]Mr Lawal did not attend work on 19 December 2022. At 20:45 he sent an email to Mr Martin and Mr Islam he said that he had previously contacted his managers about returning to work. That was correct but the e-mails predate Mr Martin’s instruction. Mr Lawal went on to question who had allocated him shifts commencing 19 December 2022. I find that there is a tension between Mr Lawal complaining that he had not been allowed to do his shifts in November and his complaint that he had not been notified of his shifts commencing 19 December 2022. It does not seem that Mr Lawal contacted his managers after Mr Martin had told him that he could return to work.

[86]Later on 19 December 2022 Mr Lawal sent a further e-mail. He attached a fitness for work certificate indicating that he was unfit for work until 2 January 2023. Mr Lawal suggested in his e-mail that the cause of this was his treatment by the Respondents. He referred to being discriminated against and victimised by various members of management. Mr Lawal’s request for paid leave to attend a trade union course

[87]Mr Lawal is a member of the GMB Union. On 23 November 2022 he was elected as a Shop Steward and Health and Safety Representative. Paul Meddes, a Regional Organiser for the GMB wrote to the ‘Operations Manager’ (Mr Martin) informing him of Mr Lawal’s election and asking ‘if [Mr Lawal] could be afforded the usual facilities’. He went on to indicate that Mr Lawal would be invited to do a training course and ‘trusted that they will be granted paid release’.

[88]The position of the Respondent is that the GMB is not a recognised trade union at Westfield Stratford. Mr Lawal disagreed but I was not provided with any evidence that the GMB was formally recognised and I find that it was not. As I set out below Mr Lawal was eventually told that he would not be permitted paid leave because the union was not recognised. I find that, had this been incorrect, it is overwhelmingly likely that it would have been challenged by the GMB.

[89]On 29 November 2022 Mr Lawal was invited to apply for a place on a 5-day training course for Workplace Organisers starting from 16 January 2023. Mr Lawal sent Mr Martin an e-mail on 10 December 2022 asking if he could be given paid time off to attend that course. He received no response to that email. He sent a reminder on 23 December 2022. Again he received no response. Mr Martin was corresponding with the Claimant in respect of the minutes and in respect of his return to work at least up to 19 December 2022.

[90]Mr Lawal sent an e-mail to the GMB on 2 January 2023 asking for advice about whether the Respondent’s conduct amounted to discrimination because of his trade union activity. I have not seen any advice given. On 10 January he contacted the GMB again asking them to intervene and to write to Mr Martin asking if he would ‘fill out this form’. I assume that is the form required to book the training course. Helen Mendieta from the GMB did as Mr Lawal had requested and asked Mr Martin directly to fill out a release form. Mr Lawal sent a further e-mail to Mr Martin on 12 January 2023 saying that when he had been employed by Securitas the GMB Union had been recognised and saying that that agreement should have transferred to the Respondent. That e-mail prompted the first reply on this subject by Mr Martin. He responded to say that he had raised the issue with HR and that there was no recognised trade union and that paid time off was therefore not available. Mr Martin then sent that email to Mr Bland, Mrs Winslade and Mr Nicholas ‘FYI’.

[91]I find that at some point, and I find that it was probably not before early January 2023, Mr Martin has escalated the Claimant’s request for paid time off to Mr Bland. He in turn had asked the HR Department whether paid time off ought to have been granted. I reach that conclusion because it is clear from an e-mail sent from Mr Bland to Mr Martin on 11 January 2023 that Mr Bland had passed on a draft of the e-mail that Mr Martin would eventually send Mr Lawal. In his e-mail Mr Bland says ‘see below the context we have had back for this’.

[92]Mr Lawal brought a grievance in respect of the delay in responding to his request for paid time off. On appeal Mr Pitman upheld that grievance. I am not surprised. In contrast to the decision-making process in respect of the delay in determining the second collective grievance there was no good explanation for the delay in dealing with the request for time off. I accept Mr Martin’s evidence that Mr Pitman did not speak to him. However other than saying correctly that he needed to seek advice from HR about this matter his explanation as to why responding to the Claimant took as long as it did was essentially that he had too much on his plate due to the Christmas period. Below, I accept his explanation, but that does not mean that Mr Lawal could not be properly aggrieved at the delay. The grievance appeal to Mr Bland.

[93]The outcome of the second collective grievance was sent to Mr Lawal on 12 January 2023. The letter set out the possibility of a right of appeal. The person identified was Mr Pitman. It appears from the correspondence that it was Mr Bland who nominated Mr Pitman to hear the appeal. On 13 January 2023 Mr Lawal questioned whether Mr Pitman was an appropriate person to hear his grievance he suggested that as Mr Martin and Mr Pitman were both Operations Managers they were at the same level of seniority. He asked for a more senior person to hear the appeal. Ian Martin forwarded Mr Lawal’s e-mail to Mr Bland who in turn sent it to Ms Pincock. Mr Martin had expressed a view that Mr Pitman was senior within the business but suggested Mr Bland sought the advice of HR. Mr Bland in his e-mail to Ms Pincock said: ‘In my eyes [Mr Pitman] can overturn any decisions if he so requires. But I’ll take a steer from you….I’ll be honest , I’m not sure I have the patience’s [sic] to listen to this currently’.

[94]Ms Pincock’s response was to suggest that Mr Lawal was correct and that the person hearing the appeal should be more senior although she said that it did not need to be Mr Bland. She went on to question whether Mr Laval was leading the collective grievance process whilst he was on sick leave. In a second e-mail she says ‘I need to pick this up next week to better understand what’s going on with this guy. He’s off sick while we are trying to sort 2 x ETs he has in……..I feel like he is stirring up a lot of unrest and taking up a lot of management time also’.

[95]Ms Pincock is correct when she noted that by this time Mr Lawal had commenced two claims in the Employment Tribunal. The subject matter of those claims concerned the shifts that were cancelled when he was sent home by Mr Qammar.

[96]The grievance outcome letter was resent on 17 January 2023 and this time identified Mr Bland as the person appointed to hear the appeal. The appeal hearing took place on 17 February 2023. The notes of the appeal hearing record that the hearing was very brief. Mr Lawal and Mr Lancaster attended on behalf of the employees. Notes were taken by Naveed Butt. Mr Lawal introduced the appeal by referring back to the first collective grievance and the petition signed by 57 employees. He then went on to say that the employees had decided that they wanted the appeal to be conducted in writing. He then handed Mr Bland a 7 page document saying that some of the issues were health and safety related. He complained about the length of the process and asked for an appeal outcome ‘within ten days’. He said ‘Our expectations are hopefully, reasonable adjustments to relevant policies, health safety, workload and better working environment and also a reasonable outcome to a equal pay dispute. Also, some of the questions we have added a recommendation to. Also, a review holiday of entitlement.’

[97]Mr Bland told the employees that he was on annual leave the following week. He suggested that it would have been better if they had presented their document prior to the day of the meeting. He said he would consider it and would revert to them if he had any questions.

[98]I consider that asking for a meeting and then when a meeting was arranged asking for the appeal to be conducted in writing was not a very sensible approach by Mr Lawal and Mr Lancaster. The appeal meeting was their opportunity to explain why they considered that the outcome reached by Mr Martin was wrong.

[99]Mr Bland reviewed the document provided by Mr Lawal and Mr Lancaster. He says that he considered that the points raised by the employees in that document were new points that ‘deviated significantly from the agreed scope of the grievance’. He says that he came to the conclusion that as there was no challenge to the conclusions of Mr Martin there was no basis upon which he could uphold the appeal. On 6 March 2023 he sent out a decision letter confirming his decision not to uphold the appeal. In respect of the points raised by the employees he said: ‘I advise that as you have raised other points outside of your original grievance sent to Ian Martin and outside the two main points you raised and agreed, you would be required to raise a further grievance on the 29 points you have brought to the appeal meeting’.

[100]I find that the document presented by the employees to Mr Bland does raise matters that were not dealt with by Mr Martin. The employees had been told very clearly by Mr Martin that he was not prepared to deal with their 49 point document. His outcome dealt only with the matters that had been discussed at the meeting. The document presented to Mr Bland went beyond the document presented to Mr Martin. It raises numerous completely new complaints. Mr Lawal’s training

[101]Mr Lawal says that he was denied the opportunity to engage in training. He refers in particular to the fact that his name appeared in a roster for training on 23 January 2023 but that he was rostered to do other duties instead.

[102]I find that Mrs Winslade instigated a training program and drew up a roster for the security guards to complete the training during their working hours. An employee with log in details could access the online training outside working hours but there was no expectation that they would do so. Training during working hours involved the employees logging in to a computer terminal in the FCC area.

[103]Mr Lawal did not do his allocated training on 23 January 2023. He was working on that day and I find that he was allocated other duties. I accept the evidence given by all of the management witnesses and, in particular by Mr Islam, that whilst a roster for training had been drawn up it would sometimes be necessary for operational reasons to allocate the employees other duties. That makes sense to me as a roster drawn up in advance may well have to give way to any contingencies. Mr Lawal did not complain that he had missed his training at the time.

[104]Mrs Winslade said in her witness statement, and I accept, that details of how to log in to the training software were placed on a poster next to the computer in the rest area. If an employee lost their access details they had to contact a central office as log in details were associated with payroll numbers. It was only in May 2023 that Mr Lawal raised an issue about being able to log in to the training software and only after he had been chased to complete his training. It did take some time to resolve the log in issues but Mr Lawal was given all reasonable assistance with this. The incident between Mr Lancaster and Mrs Winslade

[105]On 8 February 2022 there was an incident between Mrs Winslade and Mr Lancaster. Mrs Winslade made a complaint about what happened to Mr BadrSafdari on 9 February 2022. There is some common ground between the account that she gave of this incident and the account given by Mr Lancaster. Both agree that Mr Lancaster was in the rest area and that he had made himself a cup of coffee. Both accept that Mrs Winslade challenged Mr Lancaster about why he was not on patrol as his shift had already started. Mr Lancaster told Mrs Winslade that he had been asked to write a report. Mrs Winslade says that that is unlikely to be true. She says that it would only be in exceptional circumstances that writing a report would take precedence over patrolling the shopping centre. I consider I need to resolve this issue. I take into account what I have described as the entrenched views of both protagonists. I found neither to be a very convincing witness. However, I accept the explanation given by Mrs Winslade for doubting the reasons put forward by Mr Lancaster’s account of being asked to write a report. He was unable to give good explanation of why there was any urgency that would justify him not taking up his allocated patrol. On balance I find that Mr Lancaster seized on an excuse for delaying the start of his patrol.

[106]It is common ground that Mrs Winslade told Mr Lancaster to pour his coffee away and to start his patrol. There is a dispute as to the manner in which this was done. Mr Lancaster suggests that Mrs Winslade shouted at him. She does not accept this. I find that it is probable that Mrs Winslade was very abrupt with Mr Lancaster to the point of bluntness. I do not accept that she shouted at him. I accept that he would have been embarrassed to have been addressed in that way in front of colleagues.

[107]There is a further dispute about what happened next. Mrs Winslade says that she turned to return to her shared office and that Mr Lancaster approached her saying ‘what did you say’ repeatedly. She accepts that she repeated her instruction to pour the coffee away. She then says that Mr Lancaster said: don’t talk to me like my mum’. He disputes using that exact phrase but when later interviewed accepted that he said ‘don’t speak to me like your my parents’ I find that this was a heated conversation on both sides. Mr Lancaster had been in the wrong, he should have been on patrol, Mrs Winslade reacted to this robustly and did scold Mr Lancaster as if he was a child. I find it probable that he did respond in the way that Mrs Winslade has recorded. I find that it was a most unfortunate situation where neither party behaved well. However, I accept the root cause was that Mr Lancaster was having a coffee when he ought to have been on patrol.

[108]An HR ‘ticket’ was raised. Mr Badr-Safdari was appointed to investigate the matter. It is not clear to me whether the ticket was raised before or after Victoria Winslade wrote her e-mail. It is not important.

[109]Mr Badr-Safdari invited Mr Lancaster to a meeting that was to take place on 11 February 2023. Mr Lancaster declined to answer any questions about the incident saying that he had already raised it with another manager Robert Nicholas. Mr Badr-Safdari says that after the meeting he contacted Robert Nicholas to check what Mr Lancaster had told him. Mr Nicholas sent Mr BadrSafdari an e-mail in which he said that Mr Lancaster had not spoken to him about this matter. I find that Mr Lancaster had misrepresented his actions. He was not waiting to speak to Mr Nicholas about this incident. He may have indicated a wish to speak to him about something else. I find that Mr Lancaster was deliberately not co-operating with the investigation.

[110]There was then a considerable delay because of annual leave taken by Mr Badr-Safdari. Eventually a meeting was arranged between Mr Lancaster and Mr Badr-Safdari for 15 March 2023. In that meeting Mr Lancaster suggested that a different manager had asked him to write a report. This is one matter that I have relied upon to reject his evidence. He denied shouting at Mrs Winslade. He said that his tone was ‘subtle’.

[111]Mr Lancaster named four individuals who he says witnessed the incident. Mr Badr-Safdari says that he spoke to all four but that none had any recollection of the events. Mr Lancaster relies on that to say that he did nothing wrong. I do not agree. On his own case there was an altercation. The inference I draw is that either these witnesses could not remember what had happened or they did not wish to get involved.

[112]Mr Badr-Safdari decided that there was insufficient witness evidence to substantiate Mrs Winslade’s account. No further action was taken in respect of these events. I find that the approach taken by Mr Badr-Safdari was very benevolent to Mr Lancaster. He could consider himself fortunate that the matter was not referred to a disciplinary hearing where the two competing accounts could be heard. Mr Lawal being allocated ‘Keys Duties’ From February 2023

[113]Mr Lawal’s complaint is that he was shown on the roster as being allocated key holder duties despite the fact that he had told the Respondent that his difficulties with his back meant that he could not carry out those duties. He makes that complaint from February but the situation is similar to that occurring in December 2022.

[114]There is no dispute that on the roster Mr Lawal was shown as being allocated key duties. What Mr Lawal has glossed over in his claim and his evidence is the question of whether he was ever actually asked to carry out those duties. The Respondent’s evidence from Mr Lawal’s direct managers is that as the roster was posted the keys duties would be assigned without any thought being given to whether the employee would perform them. The security guards usually worked in pairs and if not another guard would be asked to take on any duties that another guard might not be able to do. They say that Mr Lawal’s back issues were known about and were accommodated. I accept their evidence. Mr Lawal did not actually contradict this evidence within his witness statement but, as noted by Ms Hicks when cross examining the Respondent’s witnesses he did suggest that he had been asked to do some keys duties. I find that this only came to be Mr Lawal’s case when he recognised the obvious difficulties of complaining about simply being shown on a roster as being allocated keys duties. I find that he was not.

[115]Mr Lawal returned to work on 21 January 2023. On 22 January 2023 he made a report through a reporting system called Lifeline where he said that he had suffered a back strain in November 2022 having been asked to do escalator duties whilst wearing body armour. Mr Islam noted that this matter had not been reported at the time. Mr Lawal appears to believe that it was the Respondent’s obligation to report this injury. I find that Mr Lawal did not suggest at the time that he had had a workplace accident or anything that required to be reported.

[116]Mr Islam initially was responsible for managing Mr Lawal’s return to work. He agreed informally to make adjustments for Mr Lawal and in particular would not expect him to do any lifting or bending associated with turning escalators on and off. He referred to that informal agreement in an e-mail he sent Mr Lawal on 29 January 2023.

[117]On 9 February 2023 Mr Islam conducted a formal return to work interview with Mr Lawal. The record of that meeting shows that Mr Islam agreed that Mr Lawal would not be expected to undertake any duties that might affect his back until medical evidence was obtained.

[118]I find that in the light of the efforts made by Mr Islam to understand and accommodate Mr Lawal’s issues with his back that he would continue to allocate the Claimant those duties in a complete reversal of what he had recorded. Negative comments about Mr Lawal’s dress

[119]On 15 February 2023 Mr Lawal approached Mrs Winslade in the office and asked her whether he was allowed to wear a hat. Mrs Winslade told him that the security officers had to follow the dress code imposed by Westfield. They were allowed to wear a branded Beanie hat outdoors but were required to be bare headed indoors. Mrs Winslade recorded this conversation in an e-mail to Ian Martin when she sought his advice. She went on to say that Mr Lawal had suggested that he needed to wear a hat as it was cold. He asked to see the policy document and was not prepared to accept Mrs Winslade’s explanation. For that reason she referred to matter to Mr Martin. Mr Lawal also sent an email on the same day. He referred to a manager asking him to remove his hat and gives that as the reason he spoke to Mrs Winslade. He said that he suffered from the shivers and felt constantly cold. He asked to be allowed to wear a hat as a ‘reasonable adjustment’. Ian Martin responded and suggested that this should not have been escalated to him in the first instance. He then confirmed what Mrs Winslade had said about the uniform policy at Westfield. That position was further confirmed by Mr Nicolas on the same day. There was no suggestion by Mr Lawal that he wore a head covering for religious reasons.

[120]Somewhat later there was a complete change of position by Mr Lawal. He said that he needed to wear a hat for religious reasons. It is common ground that he was told that this would be accommodated as it was for other security guards. Thereafter Mr Lawal often wore a hat that was clearly associated with his Islamic faith.

[121]On 15 May 2023 Mrs Winslade noted that Mr Lawal had reverted to wearing what she believed was an ordinary woollen hat as opposed to the branded hats provided by the Respondent or the religious headgear that the Claimant had been permitted to wear. Mrs Winslade told Mr Lawal that he could either wear the branded hat in accordance with the uniform policy or his religious headgear. Mr Lawal then said that he would put on the branded headgear. Mrs Winslade decided to turn a blind eye to the fact that he was wearing that indoors which was a breach of the uniform policy. The law to be applied Protected disclosure claims

[122]The protection for workers who draw attention to failings by their employers or others, often referred to as ‘whistle-blowers’, was introduced by the Public Interest Disclosure Act 1994 which introduced a new Part IVA to the Employment Rights Act 1996.

[123]In Jesudason v Alder Hey Children’s NHS Foundation Trust

[2020] ICR 1226

Elias LJ described the purposes of the protection as follows: ‘Ever since the introduction of the Public Interest Disclosure Act 1998, the law has sought to provide protection for workers (colloquially known as whistleblowers”) who raise concerns or make allegations about alleged malpractices in the workplace. Too often the response of the employer has been to penalise the whistleblower by acts of victimisation rather than to investigate the concerns identified. The 1998 Act inserted a new Part IVA into the Employment Rights Act 1996 designed to prevent this. The long title to the Act describes its purpose as follows: “An Act to protect individuals who make certain disclosures of information in the public interest: to allow such individuals to bring action in respect of victimisation; and for connected purposes.” The law which gives effect to the simple principle enunciated in the long title is far from straightforward. The basic principle, set out in section 47B of the Employment Rights Act 1996, is that a worker has the right not to be subject to a detriment by any act of his employer on the grounds that he has made what is termed a “protected disclosure”.’

[124]Section 43A of the Employment Rights Act 1996 provides that a disclosure will be protected if it satisfies the definition of a ‘qualifying disclosure’ and is made in any of the circumstances set out in Sections 43C-H. The material parts of the statutory definition of what amounts to a qualifying disclosure are found in Section 43B of the Employment Rights Act 1996 which says: 43B Disclosures qualifying for protection. (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

[125]The proper approach to assessing whether there is a qualifying disclosure for the purposes of Section 43B is that summarised by HHJ Aurbach in Williams v Michelle Brown AM

UKEAT/0044/19/OO

. He said: "It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held."

[126]To amount to a ‘disclosure of information’, it is necessary that the worker conveys some facts to their employer (or other person). In Kilraine v London Borough of Wandsworth

2018 ICR 1850

, CA the meaning of that phrase was explained by Sales LJ as follows (with emphasis added): “35. The question in each case in relation to section 43B(1) (as it stood prior to amendment in 2013) is whether a particular statement or disclosure is a "disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the [matters set out in sub-paragraphs (a) to (f)]". Grammatically, the word "information" has to be read with the qualifying phrase, "which tends to show [etc]" (as, for example, in the present case, information which tends to show "that a person has failed or is likely to fail to comply with any legal obligation to which he is subject"). 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. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in Chesterton Global at [8], 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.”

[127]The effect of Section 43B Employment Rights Act 1996 is that to amount to a qualifying disclosure, at the point when the disclosure was made, the worker must hold a belief that (1) the information tends to show one of the failings in subsection 43B(1) (a) – (e) and (2) that the disclosure is in the public interest. If that test is satisfied the Tribunal need to consider whether those beliefs were objectively reasonable. The proper approach was set out in Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed (Public Concern at Work intervening)

2018 ICR 731

, CA where Underhill LJ said:26. The issue in this appeal turns on the meaning, and the proper application to the facts, of the phrase "in the public interest". But before I get to that question I would like to make four points about the nature of the exercise required by section 43B (1).

27. First, and at the risk of stating the obvious, the words added by the 2013 Act fit into the structure of section 43B as expounded in Babula (see para. 8 above). 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. Second, and hardly moving much further from the obvious, element (b) in 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; and that is perhaps particularly so given that that question is of its nature so broad-textured. The parties in their oral submissions referred both to the "range of reasonable responses" approach applied in considering whether a dismissal is unfair under Part X of the 1996 Act and to "the Wednesbury approach" employed in (some) public law cases. Of course we are in essentially the same territory, but I do not believe that resort to tests formulated in different contexts is helpful. 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. That does not mean that it is illegitimate for the tribunal to form its own view on that question, as part of its thinking – that is indeed often difficult to avoid – but only that that view is not as such determinative.

29. Third, 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. That means that a disclosure does not cease to qualify simply because the worker seeks, as not uncommonly happens, to justify it after the event by reference to specific matters which the tribunal finds were not in his head at the time he made it. Of course, if he cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether he really thought so at all; but the significance is evidential not substantive. Likewise, in principle a tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time: all that matters is that his (subjective) belief was (objectively) reasonable.

30. Fourth, 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: otherwise, as pointed out at para. 17 above, the new sections 49 (6A) and 103 (6A) would have no role. I am inclined to think that the belief does not in fact have to form any part of the worker's motivation – the phrase "in the belief" is not the same as "motivated by the belief"; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it.

[128]When going on to consider what was required to establish that something was in the public interest Underhill LJ said at paragraph 37: “….. in my view the correct approach is as follows. 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. Mr Reade's example of doctors' hours is particularly obvious, but there may be many other kinds of case where it may reasonably be thought that such a disclosure was in the public interest. The question is one to be answered by the Tribunal on a consideration of all the circumstances of the particular case, but Mr Laddie's fourfold classification of relevant factors which I have reproduced at para. 34 above may be a useful tool. As he says, 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.”

[129]The 4 relevant factors identified by Underhill LJ were (at paragraph 34): “(a) the numbers in the group whose interests the disclosure served – see above; (b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect; (c) the nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people; (d) the identity of the alleged wrongdoer – as Mr Laddie put it in his skeleton argument, "the larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e. staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest" – though he goes on to say that this should not be taken too far.”

[130]In Dobbie v Felton

UKEAT/0130/20/OO

HHJ Tayler reviewed the decision in Chesterton he extracted the following propositions:(1) the necessary belief is that the disclosure is made in the public interest. The particular reasons why the worker believes that to be so are not of the essence

(2) 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 – Underhill LJ doubted whether it need be any part of the worker’s motivation

(3) the 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

(4) a disclosure which was made in the reasonable belief that it was in the public interest might nevertheless be made in bad faith

(5) there is not much value in trying to provide any general gloss on the phrase “in the public interest”. Parliament has chosen not to define it, and the intention must have been to leave it to employment tribunals to apply it as a matter of educated impression

(6) the statutory criterion of what is “in the public interest” does not lend itself to absolute rules (7) 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 (8) the broad statutory intention of introducing the public interest requirement was that “workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers” (9) Mr Laddie’s fourfold classification of relevant factors may be a useful tool to assist in the analysis i. the numbers in the group whose interests the disclosure served ii. the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed iii. the nature of the wrongdoing disclosed iv. the identity of the alleged wrongdoer (10) 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

[131]The fact that a disclosure is about a subject that could be in the public interest does not automatically lead to the conclusion that the worker believed that she or he was making the disclosure in the public interest: Parsons v Airplus International Ltd

UKEAT/0111/17/JOJ

. It is a question of fact as to whether the worker held the necessary belief.

[132]Where a worker says that the information they conveyed tended to show a breach or likely breach of a legal obligation they do not have to be right either about the facts relayed or the existence of the legal obligation. It is sufficient that the worker actually holds the belief and that objectively that belief is reasonable - see Babula v Waltham Forest College

[2007] EWCA Civ 174

. However, it is necessary that the belief is actually held. In Eiger Securities LLP v Korshunova

[2017] IRLR 115

Slade J said: ‘…. in order to fall within ERA section 43 B(1)(b), as explained in Blackbay the ET should have identified the source of the legal obligation to which the Claimant believed Mr Ashton or the Respondent were subject and how they had failed to comply with it. The identification of the obligation does not have to be detailed or precise but it must be more that a belief that certain actions are wrong. Actions may be considered to be wrong because they are immoral, undesirable or in breach of guidance without being in breach of a legal obligation.’

[133]There is no requirement for a worker to spell out what legal obligation they say is engaged within any disclosure but a failure to do so is evidentially relevant to the question or whether they actually held the necessary belief that their information tends to show the commission of any offence and/or breach of any legal obligation see Twist DX Ltd and ors v Armes and anor EAT 0030/20

[134]In Kraus v Penna plc

[2003] UKEAT 0360_03_2011

Cox J held that where Section 43B required a reasonable belief that some wrongdoing was ‘likely’ that word was to be understood as equating to probable. That case was subsequently overturned by the Court of Appeal in Babula v Waltham Forest College on other grounds the conclusion in respect of the meaning of the word likely was not disturbed.

[135]Any assessment of the belief held by the worker is entitled to take into account any specialist knowledge the worker may have - Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

[136]As a general rule each communication by the worker must be assessed separately in deciding whether it amounts to a qualifying disclosure however, where some previous communication is referred to or otherwise embedded in a subsequent disclosure, then a tribunal should look at the totality of the communication see Norbrook Laboratories (GB) Ltd v Shaw

2014 ICR 540

, EAT and Simpson v Cantor Fitzgerald Europe EAT 0016/18 (where the worker had failed to make it clear which communications needed to be read together) and Barton v Royal Borough of Greenwich EAT 0041/14 (where it was held that separate and distinct disclosures could not be aggregated). When reached the Court of Appeal it was held that the issue of whether disclosures could be aggregated is a matter of common sense and a pure question of fact - see Simpson v Cantor Fitzgerald Europe

[2021] ICR 695

[137]Section 43C provides that a qualifying disclosure will be a protected disclosure if it is made to the employer.

[138]Section 47B provides: 47B Protected disclosures.(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a) by another worker of W's employer in the course of that other worker's employment, or (b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker— (a)from doing that thing, or (b)from doing anything of that description. (1E) A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if— (a)the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and (b)it is reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B).]

(2) This section does not apply where— (a) the worker is an employee, and (b)the detriment in question amounts to dismissal (within the meaning of Part X).

(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “ worker ”, “ worker’s contract ”, “ employment ” and “ employer ” have the extended meaning given by section 43K

[139]In Timis and anor v Osipov (Protect intervening)

2019 ICR 655

, CA, the Court of appeal held that S.47B(2) does not preclude an employee from bringing a detriment claim against a co-worker under S.47B(1A) for subjecting him or her to the detriment of dismissal. This means that a detriment claim in such circumstances can also be brought against the employer, who will be liable for the detriment under S.47B(1B) unless the ‘reasonable steps’ defence can be established.

[140]The meaning of the phrase ‘on the grounds that’ in sub-section 47(1) has been explained in Fecitt v NHS Manchester (Public Concern at Work intervening)

[2012] ICR 372

where Elias LJ said: ‘the better view is that section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower.’

[141]A detriment can be on the grounds that the employee has made a protected disclosure whether the motivation is conscious or subconscious. It is not a necessary ingredient of the test that there was any malice towards the worker - Croydon Health Services NHS Trust v Beatt

2017 ICR 1240

, CA.

[142]Depending on the facts there can be a distinction between the fact of the disclosure itself and the manner in which the employee raises or pursues any complaints: Panayiotou v Chief Constable of Hampshire Police and anor 2014 ICR D23, EAT, Mid Essex Hospital Services NHS Trust v Smith EAT 0239/17, Woodhouse v West North West Homes Leeds Ltd [2013] I.R.L.R. 773 and Martin v Devonshires Solicitors 2, EAT,

2011 ICR 35

. The underlying principle in those cases was approved by the Court of appeal in Page v Lord Chancellor and another

[2021] IRLR 377

per Underhill LJ at paragraphs 53 -56.

[143]An employer who subjects an employee to a detriment or dismissed her of him on the grounds that they have raised some complaint that the employer genuinely and honestly does not regard as being a protected disclosure runs the risk that if an employment tribunal later concludes that a disclosure was made it will be taken to have acted unlawfully – see Croydon Health Services NHS Trust v Beatt where Underhill LJ said: ‘I wish to add this. It comes through very clearly from the papers that the Trust regarded the Appellant as a trouble-maker, who had unfairly and unreasonably taken against colleagues and managers who were doing their best to do their own jobs properly. I do not read the Tribunal as having found that that belief was anything other than sincere, even though it found that it was unreasonable. But it is all too easy for an employer to allow its view of a whistleblower as a difficult colleague or an awkward personality (as whistleblowers sometimes are) to cloud its judgement about whether the disclosures in question do in fact have a reasonable basis or are made (under the old law) in good faith or (under the new law) in the public interest. Those questions will ultimately be judged by a tribunal, and if the employer proceeds to dismiss it takes the risk that the tribunal will take a different view about them. I appreciate that this state of affairs might be thought to place a heavy burden on employers; but Parliament has quite deliberately, and for understandable policy reasons, conferred a high level of protection on whistleblowers. If there is a moral from this very sad story, which has turned out so badly for the Trust as well as for the Appellant, it is that employers should proceed to the dismissal of a whistleblower only where they are as confident as they reasonably can be that the disclosures in question are not protected (or, in a case where Panayiotou is in play, that a distinction can clearly be made between the fact of the disclosures and the manner in which they are made).’

[144]The meaning of the word ‘detriment’ in Section 47B is the same as in a claim of direct discrimination under the Equality Act 2010 and is treatment that a reasonable worker would consider to be to their disadvantage. In Jesudason v Alder Hey Children’s NHS Foundation Trust the Court of Appeal stated: “27.In order to bring a claim undersection 47B, the worker must have suffered a detriment. It is now well established that the concept of detriment is very broad and must be judged from the view point of the worker. There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment. The concept is well established in discrimination law and it has the same meaning in whistleblowing cases. In Derbyshire v St Helens Metropolitan Borough Council (Equal Opportunities Commission intervening)

[2007] ICR 841

, para 67, Lord Neuberger of Abbotsbury described the position thus: “67. In that connection, Brightman LJ said in Ministry of Defence v Jeremiah

[1980] ICR 13

, 31A that ‘a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment’. 68.That observation was cited with apparent approval by Lord Hoffmann in Chief Constable of the West Yorkshire Police v Khan

[2001] ICR 1065

, para 53. More recently it has been cited with approval in your Lordships’ House in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

. At para 35, my noble and learned friend, Lord Hope of Craighead, after referring to the observation and describing the test as being one of ‘materiality’, also said that an ‘unjustified sense of grievance cannot amount to “detriment”’. In the same case, at para 105, Lord Scott of Foscote, after quoting Brightman LJ's observation, added: ‘If the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice’.” 28.Some workers may not consider that particular treatment amounts to a detriment; they may be unconcerned about it and not consider themselves to be prejudiced or disadvantaged in any way. But if a reasonable worker might do so, and the claimant genuinely does so, that is enough to amount to a detriment. The test is not, therefore, wholly subjective.”

[145]Where, as in the present case, there are several alleged protected disclosures and a number of alleged detriments and/or a dismissal it is necessary to take a structured approach. Guidance was given in Blackbay Ventures Ltd T/A Chemistree v Gahir

UKEAT/0449/12/JOJ

where it was said a tribunal should take the following approach:a. Each disclosure should be separately identified by reference to date and content.

b. Each alleged failure or likely failure to comply with a legal obligation, or matter giving rise to the health and safety of an individual having been or likely to be endangered as the case may be should be separately identified.

c. The basis upon which each disclosure is said to be protected and qualifying should be addressed.

d. Save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation. It is not sufficient as here for the Employment Tribunal to simply lump together a number of complaints, some of which may be culpable, but others of which may simply have been references to a checklist of legal requirements or do not amount to disclosure of information tending to show breaches of legal obligations. Unless the Employment Tribunal undertakes this exercise it is impossible to know which failures or likely failures were regarded as culpable and which attracted the act or omission said to be the detriment suffered. If the Employment Tribunal adopts a rolled up approach it may not be possible to identify the date when the act or deliberate failure to act occurred as logically that date could not be earlier than the latest act or deliberate failure to act relied upon and it will not be possible for the Appeal Tribunal to understand whether, how or why the detriment suffered was as a result of any particular disclosure; it is of course proper for an Employment Tribunal to have regard to the cumulative effect of a number of complaints providing always they have been identified as protected disclosures.

e. The Employment Tribunal should then determine whether or not the Claimant had the reasonable belief referred to in S43 B1 of ERA 1996 under the 'old law' whether each disclosure was made in good faith; and under the 'new' law introduced by S17 Enterprise and Regulatory Reform Act 2013 (ERRA), whether it was made in the public interest.

f. Where it is alleged that the Claimant has suffered a detriment, short of dismissal it is necessary to identify the detriment in question and where relevant the date of the act or deliberate failure to act relied upon by the Claimant. This is particularly important in the case of deliberate failures to act because unless the date of a deliberate failure to act can be ascertained by direct evidence the failure of the Respondent to act is deemed to take place when the period expired within which he might reasonably have been expected to do the failed act.

g. The Employment Tribunal under the 'old law' should then determine whether or not the Claimant acted in good faith and under the 'new' law whether the disclosure was made in the public interest.

[146]Section 48(1) of the Employment Rights Act 1996 provides for a right of enforcing any claim brought under Section 47B in the employment tribunal. Sub section 48(2) provides that: ‘(2) On a complaint under subsection (1), (1ZA), (1A) or (1B) it is for the employer to show the ground on which any act, or deliberate failure to act, was done.’

[147]The effect of Sub section 48(2) of the Employment Rights Act 1996 is that once the worker proves that there was a protected disclosure and a detriment the Respondent bears the burden of showing that was not on the grounds that the worker had made a protected disclosure. The fact that the employer leads no evidence, or that the explanation it does give is rejected, does not lead automatically to the claim being made out. It is for the tribunal looking at all the evidence to reach a conclusion as to the reason for the treatment - See Ibekwe v Sussex Partnership NHS Foundation Trust EAT 0072/14 and Kuzel v Roche Products Ltd

2008 ICR 799

, CA and Serco Ltd v Dahou

[2015] IRLR 30

. Where there is no evidence or the employer’s explanation is rejected it may be legitimate for the tribunal to draw an inference from the failure to establish the grounds for any treatment.

[148]Inferences can only be drawn from established facts and cannot be drawn speculatively or on the basis of a gut reaction or ‘mere intuitive hunch’ see Chapman v Simon

[1994] IRLR 124

see per Balcombe LJ at para. 33 or from ‘thin air’ see Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

. Health and safety

[149]An employee who raises or responds to matters relating to health and safety is protected against any retaliation by her or his employer short of dismissal in the circumstances set out in Section 44. At the time of the hearing the material parts of Section 44 read as follows: 44 Health and safety cases(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that— (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities, (b) …… (c) being an employee at a place where— (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, (d )in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or (e ) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

(2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

(3) An employee is not to be regarded as having been subjected to any detriment on the ground specified in subsection (1)(e) if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did.

(4) This section does not apply where the detriment in question amounts to dismissal (within the meaning of Part X).

[150]The scope of Sub-section 44(1)(a) (and Sub-section 100(1)(a) which is in identical terms was considered in Castano v London General Transport Services Ltd

[2020] IRLR 417

. Eady J held that: ‘Subsection (1)(a) is directed towards the situation in which a particular employee has been designated, over and above their ordinary job duties, to carry out specific activities in connection with preventing or reducing risks (essentially, a health and safety officer’s function). Appointing an employee to do a job in which they must exercise some responsibility to take care of their own health and safety and that of others (which, per Von Goetz, could extend beyond other workers) is not the same thing.’

[151]The phrase ‘which the employee reasonably believed to be serious and imminent’ is found in sub-sections 44(1)(d) and (e) and in the same terms in section 100. In Kerr v Nathan’s Wastesavers Ltd EAT 91/95. The EAT noted that the purpose of the legislation is to protect employees who raise matters of health and safety and held that not too onerous a duty of enquiry should be placed on the employee.

[152]Section 44 prohibits detrimental treatment ‘on the grounds of’ the various protected acts and functions. That phrase has the same meaning as in Section 47B of the Employment Rights Act 1996. To establish unlawful conduct, it is enough that the fact that the employee has done any protected act or function is a material influence in subjecting her or him to a detriment.

[153]A claim under Section 44 is enforced through Section 48 of the Employment Rights Act 1996. Accordingly, the approach to the burden of proof is the same in a claim relying on Section 44 as it is under Section 47B and I have set out the relevant legal principles above. Time Limits – claims brought through Section 48

[154]The time limits for a claim brought under Section 48 of the Employment Rights Act 1996 are set out in sub sections 48(3)-(5) which read as follows: (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 act 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 decided on and, in the absence of evidence establishing the contrary, an employer, a temporary work agency or a hirer 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 reasonably have been expected to do the failed act if it was to be done.

[155]The meaning of ‘an act extending over a period’ was used in the various discrimination acts prior to the Equality Act 2010. The phrase when used in Section 48 of the Employment Rights Act should be taken as having the same meaning. In Commissioner of Police of the Metropolis v Hendricks

[2002] EWCA Civ 1686

it was held that: ‘the burden is on [the Claimant] to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of 'an act extending over a period'’.

[156]In Arthur v London Eastern Railway Ltd

[2007] IRLR 58

the Court of Appeal held that in order for time to be extended on the basis that an act ostensibly out of time forms part of a series of similar acts the Claimant needs to establish that there is at least one unlawful similar act that was presented in time. A two-stage test

[157]Where a claim is presented outside the period of 3 months it is necessary to ask firstly whether it was not reasonably practicable to present the claim in time and, only if it was not, go on to consider whether it was presented in a reasonable time thereafter. The two questions should not be conflated. There is no general discretion to extend time and the burden of proof rests squarely on the Claimant to establish that both limbs of the test are satisfied. The meaning of “reasonably practicable”

[158]The expression “reasonably practicable” does not mean that the employee can simply say that his/her actions were reasonable and escape the time limit. On the other hand, an employee does not have to do everything possible to bring the claim. In Palmer and Saunders v Southend-On-Sea Borough Council

[1984] IRLR 119

it was said that reasonably practicable should be treated as meaning “reasonably feasible”.

[159]Schultz v Esso Petroleum Ltd

[1999] IRLR 488

is authority for the proposition that whenever a question arises as to whether a particular step or action was reasonably practicable or feasible, the injection of the qualification of reasonableness requires the answer to be given against the background of the surrounding circumstances and the aim to be achieved. A reasonable period thereafter

[160]The question of whether an employee has presented their claim within a reasonable time of the original time limit is a question to be determined objectively by the employment tribunal taking into account all material matters see Westward Circuits Ltd v Read

[1973] ICR 301

, NIRC.

[161]In Cullinane v Balfour Beatty Engineering Services Ltd

UKEAT/0537/10

the then president of the EAT said: “Ms Hart pointed out that the question which arises under the second stage in s 139(1)(b) is couched simply in terms of what further period the tribunal would regard as “reasonable”, and not, like the question under the first stage, in terms of reasonable practicability. She submitted that it followed that the “Dedman principle” – namely that for the purpose of the test of reasonable practicability an employee is affixed with the conduct of his advisers (see, for the most recent review of the case law, Entwhistle v Northamptonshire County Council (2010)

UKEAT/0540/09/ZT

[2010] IRLR 740

) – does not fall to be applied. She pointed out that that principle is a consequence of the ultimate test being one of practicability (not even, be it noted, when the test was first formulated, reasonable practicability), and that the consideration of what further period was “reasonable” did not require so strict an approach. She made it clear that she was not saying that the fact that a Claimant had been let down by his advisers was decisive of the question of reasonableness at the second stage, but she submitted that it must be a relevant consideration. [16] I accept the validity of the formal distinction advanced by Ms Hart, but I do not believe that it makes any real difference in practice as regards the question of the relevance of the culpability of the Claimant's legal advisers. The question at “stage 2” is what period – that is, between the expiry of the primary time limit and the eventual presentation of the claim – is reasonable. That is not the same as asking whether the Claimant acted reasonably; still less is it equivalent to the question whether it would be just and equitable to extend time. It requires an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted – having regard, certainly, to the strong public interest in claims in this field being brought promptly, and against a background where the primary time limit is three months. If a period is, on that basis, objectively unreasonable, I do not see how the fact that the delay was caused by the Claimant's advisers rather than by himself can make any difference to that conclusion.”

[162]In assessing whether proceedings have been brought within a reasonable period after the expiry of the original time limit, it is necessary to have regard to all relevant matters including, where appropriate, the factors that made it not reasonably practicable to present the claim in time. Whether or not they remained operative may be an important matter.

Discussion and Conclusions

[163]In order to decide these claims I need to determine whether the Claimants said or did anything protected by the legislation I have outlined above and then decide whether the reasons for any treatment that the Claimants complain of was influenced by any protected action. That exercise involves me making further findings of fact both as to the state of mind of each Claimant and the reasons for any treatment complained of. I shall make it clear when I make any such finding.

[164]The list of issues records that the Claimants all rely upon two instances where they say they made protected disclosures or did something falling within the ambit of Section 44 of the Employment Rights Act 1996. These are described as: 164.1. ‘Signed a petition and lodged a collective grievance with the Respondent in May 2022 that included health and safety concerns (“Disclosure 1”); and 164.2. Lodged a further collective grievance with the Respondent in January 2023 that included health and safety concerns (“Disclosure 2”)’.

[165]It is necessary to identify the scope of the communication said to comprise each of these disclosures. In her written submissions Ms Hicks refers to: 165.1. The e-mail from Mr Lawal sent on 27 April 2022 which enclosed an early version of the petition and the document with the date 24 May 2022 at its head and including bullet points and the minutes of the meeting that took place on 26 May 2022. She has treated these documents and records as the substance of the first protected disclosure. 165.2. In respect of the second protected disclosure she notes that the identification of the date in January 2023 is incorrect. The further collective grievance was commenced by an e-mail from Mr Lawal on 17 December 2022 and supplemented by further e-mails on 20 and then 25 November 2022. The grievance was discussed at a meeting on 9 December 2022 at which meeting Mr Lawal presented a document with 49 points.

[166]Not included in Ms Hicks analysis in respect of the second protected disclosure is the 7 page document handed to Mr Bland at the appeal meeting in respect of the second collective grievance that took place on 17 February 2023. The question of whether I need to consider this document as comprising part of the second protected disclosure is one which in my view should be answered by looking at the ET1. Ordinarily I would have expected an ET1 in a claim relying upon Section 47B of the Employment Rights Act 1996 to set out particulars of the disclosures relied upon and the detriments said to have been suffered as a consequence. In the ET1 there is only a vague hint at what the detriments might be. However, what the ET1 does include is a suggestion that health and safety concerns were raised between May 2022 and March 2023. That is wide enough to encompass the appeal meeting chaired by Mr Bland. In the circumstances I considered it right to include all the communications provided by the Claimants throughout the two grievance processes. However, this document was presented at the appeal meeting. It cannot have been operative as a reason for any earlier detriment. For that reason I shall only refer to it as far as is necessary.

[167]I shall work through each communication in turn. As I do so I will address the questions of whether any part of the communication amounted either to a protected disclosure for the purposes of the claims brought through Section 47B OR whether the communications qualify for protection under Section 44 of the Employment Rights Act. Before I do so it is necessary for me to deal with some of the ways the Section 44 claim appears to be put.

[168]Within the list of issues I am asked to say whether the Claimants can bring themselves within the scope of Sub-Section 44(1)(a) that is that they had been ‘designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work’. There was little focus by the Claimants on this. There was no evidence that Mr Lancaster, Mr Haque or Mr Benpah were ever designated by anybody to carry out any activities connected with health and safety that went beyond their ordinary contractual duties as a security guard. Mr Lawal was elected as a health and safety representative for members of his trade union but that trade union was not recognised by the Respondent and there was no health and safety committee at the workplace. Having regard to Castano v London General Transport Services Ltd I am not satisfied that any of the Claimants can bring themselves within the protection afforded by Sub-section 44(1)(a).

[169]I have considered whether Mr Lawal’s election as a health and safety representative by his trade union entitles him to rely on the protection afforded by Sub-section 44(1)(b). Whilst I accept that his nomination by his trade union as a health and safety representative of the trade union members means that he would satisfy the condition in Section 44(1)(b) that he was a representative of workers on matters of health and safety I do not consider that he can meet the further conditions of that sub-section. These are either that he was a representative ‘in accordance with arrangements established under or by virtue of any enactment’ or that he was acknowledged as such by the employer. I do not consider that the election by a trade union of a health and safety representative is an arrangement established under an enactment. Certainly Mr Lawal has not identified any relevant enactment. There was no evidence that the Respondent did anything at all in response to being notified that Mr Lawal was elected as a health and safety representative. Mr Lawal led no evidence to suggest that he was acknowledged by the Respondent in respect of any arrangements under the Health and Safety at Work Act or any other statutory provision. In the circumstances I find that he cannot rely upon this sub-section by reason of his election internally as a trade union representative.

[170]It was conceded by the Respondent that there was no health and safety committee at the Stratford workplace. It follows that to fall within the scope of Sub-section 44(1)(c) of the Employment Rights Act 1996 the Claimants need only show that they brought to the Respondents attention by reasonable means, circumstances connected with their work that they reasonably believed were harmful or potentially harmful to health and safety. I consider that this is a low threshold. It appears to me that this would have been a conscious choice by parliament. Taking a purposeful approach to the statute it is designed to protect those workers who reasonably raise health and safety concerns from any retaliation. Protection from abuse is adequately provided by requiring the employees to use ‘reasonable means’.

[171]From that review it is clear that where an employee raises health and safety concerns it may generally be far easier for them to rely upon Section 44 than Section 47B of the Employment Rights Act 1996. In particular Section 44 has no requirement that any communication be in the public interest. The First Collective Grievance – 27 April 2022 e-mail

[172]I have summarised the contents of Mr Lawal’s e-mail of 27 April 2022 above. The e-mail makes no reference at all to any issue of health and safety. There are two issues raised and both concern pay. In their submissions I understood the Claimants to be suggesting that there could be a link between pay and wellbeing. I would accept that there might be such a link although it is not strong. However, to bring themselves within the scope of Section 44(1)(c) the Claimants would have needed to believe at the time that they were raising matters that were potentially harmful to health and safety. That requires me to make a finding about the mental state of the Claimants who say they were involved in this communication. I note that the communication is silent about any health and safety implications. I have come to the conclusion that none of the Claimants gave a moment’s thought to any link between the level of their pay and issues of health and safety. It follows in my view that the communication is not protected by Section 44.

[173]I turn to the question of whether thus communication amounts to a qualifying disclosure for the purposes of Section 43B of the Employment Rights Act 1996. I shall deal with the 5 questions identified in Williams v Michelle Brown AM in turn.

[174]I am satisfied that Mr Lawal’s e-mail includes sufficient information that ‘tends to show’ a breach of a legal obligation at least in regards to the suggestion that the security guards were told that they would receive a job retention bonus and that the bonus had not been paid. If the security guards had been correct it is difficult to see what further information they would have needed to provide. I am satisfied that the test for information set out in Kilrane is met in respect of this issue.

[175]I am not concerned with whether the information given was correct. I need to consider whether those people bringing forward the grievance reasonably believed what they said tended to show a breach of a legal obligation. The first question is whether that believe was actually held. I have no hesitation in finding that in respect of Mr Lawal, Mr Bempah and Mr Lancaster all of them believed that the retention bonus that they had been promised was something different to the Christmas bonus which they had been paid. It appears to have been accepted by Mr Martin that there had been a communication breakdown. The fact that the petition attracted so many signatures provides support for this finding.

[176]The next question is whether the belief of the employees involved that the information tended to show a breach of a legal obligation was reasonable. I find that it was if the information had been correct then it would have been reasonable to believe that it tended to show wrongdoing. The employees reasonably believed that they had been promised an additional bonus. I find that this element of the test is satisfied.

[177]The next issue is whether the employees actually believed that raising the issue of an unpaid retention bonus was in the public interest. Subjective beliefs do not have to be reasonable or even realistic. A person might strongly believe that if a large number of people were owed a bonus then that was a matter of public interest. Put differently a person raising a complaint may not be expected to be as familiar with the threshold imposed by the legislation as interpreted in Chesterton as a lawyer. By a narrow margin I am persuaded that Mr Lawal, Mr Bempah and Mr Lancaster all thought that they were acting on behalf of a group and that that was sufficient to be in the public interest.

[178]I am not satisfied that any belief that raising the complaint about the alleged non-payment of a retention bonus was in the public interest was reasonable. The non-payment of wages might be in the public interest if the wages paid fell below the national minimum wages of an issue of modern slavery was engaged. The further away one gets from that situation the lesser the public interest in what is essentially a private contractual arrangement. I would accept that the numbers involved might have some bearing on whether the public interest is engaged. Here perhaps 60 or so employees were affected. The nonpayment of this bonus did not concern the falsification of accounts – in contrast to Chesterton. Having regard to the guidance in that case I am not satisfied that there was any element of public interest in the disclosures made by the employees involved. It was a quintessential private contractual dispute although one involving a moderately large group.

[179]It follows that I am not satisfied that the elements of the e-mail referring to the retention bonus were qualifying disclosures.

[180]I turn to the other element of the e-mail – the reference to ‘equal pay’ and the fact that the security guards at Westfield in West London were paid more than those at Stratford.

[181]I have no difficulty accepting that the security guards at Stratford were genuinely aggrieved that people doing much the same job at West London were paid more than them for doing much the same job. Mr Lawal described it as ‘unethical’ in his e-mail. The question of whether this amounted to a qualifying disclosure is more complex. I shall go through the 5 Williams v Michelle Brown AM questions in turn.

[182]The e-mail does include some information. It says that there is a disparity in pay between those working at Stratford and those in West London using the language ‘equal pay’. It does not say anything more other that that is believed to be unethical. I need to consider whether that is sufficient having regard to the test in Kilrane. I do not find that that test is met. To surpass that test the information must be sufficient to ‘tend to show’ wrongdoing. Information that shows the existence of a state of affairs that might be entirely lawful without further information being given is in my view insufficient. The fact that employees in different workplaces are not paid the same is not information that tends to show any wrongdoing. I need to ask whether the inclusion of the reference to ‘equal pay’ tips this over the line. What is absent from the information provided is any suggestion that the inequality has anything to do with gender. The information includes the suggestion that the pay disparity is ‘unethical’. Standing back I am not satisfied that there was any information capable of ‘tending to show’ a breach of a legal obligation. What is plainly raised is an ethical complaint.

[183]If I am wrong about that I need to consider whether the employees involved actually believed that what was written tended to show the breach of a legal obligation. That involves me making a finding of fact. I am concerned with the belief held at the time. I am of course aware of the fact that the Claimants later attempted to frame their complaint as equal pay claims within the Equality Act 2010 only very recently coming to the conclusions that those were hopeless. I have come to the conclusion that at the time this e-mail was written the Claimants involved had given no thought whatsoever to the question of whether the state of affairs they refer to was unlawful. I find that had they thought that was the case they would have said so and not used the term ‘unethical’. I find that at the time they were using ‘equal pay’ only in the sense of ‘the same pay’. No thought at all had been given to issues of gender.

[184]It follows that I do not need to consider the question of whether the Claimants could have reasonably thought that what they said in this e-mail tended to show a breach of the Equality Act 2020. Had I gone on to consider that question I would have had to bear in mind that it would not be unreasonable to misunderstand many of the complexities of the equal pay provisions of the Equality Act 2010.

[185]It further follows that I do not have to consider the issue of public interest. I would have accepted that there is a greater potential for the public interest being engaged where the Equality Act 2010 is engaged.

[186]It follows from what I have found that the e-mail of 27 April 2022 did not engage the protection of Section 44 of the Employment Rights Act 1996 nor did it amount to a qualifying disclosure for the purposes of Section 43B. The Petition

[187]I have set out the heading of the petition in my findings of fact above. It is remarkably brief. It does not make any express reference to anything with a connection to health and safety. The closest it gets is a reference to ‘improved work conditions’. I find that that is not enough to amount to ‘bringing to the Respondent’s attention’ matters which were potentially harmful to health and safety. An employer could not be expected to make the leap from a reference to improved working conditions’ to issues of health and safety. It follows that the communication did not fall within Section 44 of the Employment Rights Act 1996.

[188]I reach a similar conclusion for similar reasons in respect of the issue of whether the communication amounted to a qualifying disclosure. I find that it tumbles at the first hurdle – the Kilrane test. The heading to the petition contains no information at all other than to convey that the petitioners were unhappy. That information does not indicate, or tend to show, any wrongdoing.

[189]I shall not go on to deal with the other elements of the test for whether this document amounted to a qualifying disclosure. I find that due to the lack of information it contains it is incapable of doing so. The further information of 24 May 2022

[190]I find that Mr Lawal was the author of the further information he provided to Mr Martin on 24 May 2022. However, I accept his evidence that what he wrote reflected discussions that he had with others.

[191]I have set out above the parts of that document that describe the 6 issues that the employees want to discuss at the grievance meeting. The last of them gives no indication of what the issue may be but only contains a suggestion that additional matters might be raised orally.

[192]I shall start by examining whether what is written falls within Sub-section 44(1)(c) of the Employment Rights Act 1996. I find that it does not. In common with the petition there is some reference to ‘work conditions’. For the reasons I have set out above I find that that does not amount to bringing to the Respondent’s attention maters that potentially affect health and safety. There is simply not enough information for that.

[193]I then turn to the issue of whether the communication amounts to a qualifying disclosure. Where the document refers to the unpaid retention bonus it is sufficient for me to repeat my analysis set out above. I accept that there is sufficient information in the communication and that the employees reasonably believed that the information tended to show a breach of a legal obligation. However, I do not accept that the employees reasonably believed that this was a matter that engaged any element of the public interest.

[194]The document refers to ‘not receiving the pay rise as promised’. This is the pay rise to restore equality between the Westfield sites in London. I note that no reference is made in this document to that disparity being anything to do with sex. I will skip straight to the question of whether the employees concerned could have reasonably believed that raising this complaint was in the public interest. I have concluded that they could not. This is a dispute about a delay implementing a pay rise. It is a matter of private contract law. I do not accept that at this stage the employees concerned had given a moment’s thought to this being a breach of the Equality Act 2010. Had they done so I am sure there would have been a reference to sex in their communications. I accept that a number of employees were affected by this dispute but even having regard to that I am not satisfied that it would have been reasonable to believe that making this disclosure was in the public interest.

[195]In respect of all the references to how much the security guards are paid the night shift rate and the pay structure I do not consider that there is any information provided that tends to show any breach of a legal obligation. Furthermore if I am wrong about that I reach the same conclusions as I have above about whether it would have been reasonable for the employees concerned to believe that their disclosure was in the public interest. The fact that a number of employees were concerned is in my view insufficient to elevate a quintessential private dispute into a matter of any public interest.

[196]It follows that I find that this communication does not engage the protection of either Section 43B or 44 of the Employment Rights Act 1996. What was said in the grievance meeting on 26 May 2022

[197]I have summarised what was said in the grievance meeting on 26 May 2022 above within my findings of fact. I note that during the meeting of 26 May 2022 when the disparity of pay between Stratford and West London is discussed there is no suggestion whatsoever that the disparity has anything to do with sex. This adds weight to my conclusions above that this was not how the employees viewed this issue at the time.

[198]I shall start by asking whether in the meeting the employees, which included all of the Claimants except Mr Haque brought to the Respondent’s attention matters that they reasonably believed were harmful or potentially harmful to health and safety.

[199]Within the notes of the meeting it is recorded that the employees suggested that the training was ‘inadequate’. There does not appear to be any dispute that there were some issues with the training program. I did not understand Victoria Winslade to say anything different. She said that she was making improvements. That would suggest that some changes were desirable.

[200]Ms Hicks deals with the question of whether raising inadequate training is sufficient to meet the requirements of Sub-section 44(1)(c). She says not. In her submissions she says: ‘there is nothing to suggest that the issues reach the threshold; namely that the matters were harmful or potentially harmful to health and safety’. I think that Ms Hicks is putting the test too high. The subsection does not require that the circumstances are actually harmful or potentially harmful. What is required is that the worker reasonably believes that they are.

[201]I accept that, in the workplace at Stratford, if training was inadequate then there was the potential for harm to health and safety. That is my own view. Ms Winslade says this about the working environment: ‘There is no doubt that the working environment at Westfield Stratford was high pressure and that it could be a difficult working environment for the security officers. For example there were suicides at the Mall and the officers wore stab proof vests’. It is unnecessary for me to rely upon my own assessment the question is whether the Claimants could reasonably have believed it that inadequate training was potentially harmful to health and safety. I find that they could quite reasonably have done so.

[202]The conversation about training led to complaints that the security guards were expected to train others. I accept the arguments raised by Ms Hicks that these are not circumstances that anybody could reasonably believe were harmful to health and safety. The complaints did not touch on whether the security guards were able to train their new colleagues but focused squarely on the fact that they were not paid to do so.

[203]It is apparent from the outcome letter that was sent by Mr Martin that there was a discussion during the grievance meeting about the provision of uniform and the state of the employee rest area. Those discussion are not captured in the minutes. I infer that the employees complained that there was a shortage of uniforms and that that included safety boots which are expressly referred to in the outcome letter. There is an acknowledgement in the outcome letter that there had been a protracted outage of the male toilet facilities and that the furniture in the rest area was being renewed. I consider that in raising these issues the employees in attendance were bringing to the Respondent’s attention matters which they reasonably believed could potentially be harmful to health and safety. There is no threshold such as serious harm within the legislation. A complaint about inadequate toilet facilities is unlikely to cause any serious harm but in my view is nonetheless covered by the legislation. The same is true of any items of uniform that are designed to protect against health and safety risks.

[204]There is a final matter that I shall deal with where, during the meeting, the employees are recorded as saying that the move from monthly pay to a pattern described as 19 – 25 day payment (which is a shorter period) impacted upon the health of officers. It was said that the change was encouraging officers to work continuously with minimum rest to ensure that they had sufficient pay in their pay packets. It was suggested that this was leading to staff burnout and leaving. I was unable to understand from the evidence provided by the Claimant’s exactly why being paid more regularly meant that the security guards had to take on more shifts. However, the question for me is whether when referring to this the employees reasonably believed that the pay system was potentially harmful to health and safety. The requirement to reasonably believe something does not carry with it a requirement to be right. If the employees were aware that they or their colleagues were cutting down on time off work because of the new pay dates then I consider that they could reasonably believe that there was the potential for harm to health and safety. They might have been wrong but that is not fatal to the existence of a reasonable belief. I am satisfied that the employees did believe that the new pay system was encouraging security guards to take no more work. I find that their belief that this potentially harmed health and safety was reasonable.

[205]There are accordingly at least some aspects of what Mr Lawal, Mr Lancaster and Mr Bempah raised during this meeting that I find attracted the protection afforded by Sub-section 44(1)(c).

[206]Given that the Claimants rely on the same matters as qualifying for protection under Section 43B I do not consider it necessary to conduct a further analysis into these particular matters to examine whether they would additionally qualify as protected disclosures.

[207]I turn then to the additional matters and ask whether those aspects of the disclosures qualify for protection under Section 43B. There is some considerable overlap between what was raised in the meeting and what was raised in the documents I have analysed above. I shall not repeat any analysis unless it is necessary to do so.

[208]The issue of the retention bonus was explored in the meeting. I adopt the analysis I have set out above. I accept that information was provided and that the employees could reasonably have believed that the information tended to show a breach of a legal obligation. However, I do not accept that the employees could have reasonably believed that raising this issue was in the public interest. I have given my reasons for this above.

[209]The issue of pay disparity was also raised in the meeting. The employees were informed that this disparity would be addressed shortly. I repeat my reasoning set out above. I find that by the time of this meeting the employees had not got as far in their own minds as a belief that the disparity in pay contravened the Equality Act. There was no mention of that during the meeting and no reference at all to sex. I find that the employees’ belief was, unsurprisingly, that the disparity in pay was unethical’. I do not accept that the employees actually believed that their disclosure tended to show a breach of any legal obligation. I would repeat my conclusion that even if they did it was not reasonable for them to consider that raising this matter was in the public interest.

[210]I should pause to say that the explanation that the employees were given for the disparity in pay between Stratford and West London was the difficulties in agreeing a contractual variation with the owner of the shopping centre. That explanation was on any analysis fatal to a claim brought under the Equality Act 2010. Any differences in pay had nothing to do with sex. The Claimants have very belatedly accepted that and withdrawn their equal pay claims.

[211]A very large proportion of the grievance meeting was taken up with points raised by the Claimants about their pay rate. I do not understand the Claimants to suggest that this element of their complaint amounted to a protected disclosure. If that was their case it must fail. The reason for that is straightforward. It would not have been reasonable for the Claimants to believe that the fact that they were not paid what they believe they were worth tended to show that there was a breach of any legal obligation. There is no legal obligation to pay workers a fair rate in excess of the national minimum wage. No reasonable person would believe otherwise. Even if I am wrong about that I find that it would not have been reasonable to regard raising the rate of pay for the security guards to be a matter of public interest.

[212]I believe that I have dealt with all the matters raised by the Claimants during the grievance meeting. Less it be said that I have overlooked some complaint I would make the overarching finding that, putting aside the health and safety matters I have referred to above, I find that the Claimants could not have reasonably believed that any of the other concerns they raised about their working conditions pay and rewards was made in the public interest. The Claimant’s complaints were about the way that they were expected to work, about their rates of pay and the scope of their duties. These are all matters of private contract law with no public interest engagement whatsoever.

[213]Mr Haque was not employed at the time of the first collective grievance and I find he played no part in it. It follows that he did nothing that falls to be protected by Section 43B and or Section 44 of the Employment Rights Act 1996 at this stage.

[214]Ms Hicks made submissions in respect of whether Mr Lancaster and Mr Bempah could be taken to have done protected acts in relation to the written communications that predated the grievance meetings. I deal with those below. The Second Collective Grievance

[215]The disclosures made during the second grievance follow a similar pattern to the first grievance in that there is an initial complaint followed up by successive documents that add at least a little detail to the first document. I need to undertake the same process as I have done above in respect of those documents. The initial Grievance sent on 17 November 2022

[216]The initial e-mail sent by the Claimant on 17 November 2022 does no more than ask for a meeting. There is nothing in that letter that tells Mr Martin and Mrs Winslade what the meeting might concern. In short the e-mail does not bring any health and safety concerns to the employer’s attention for the purposes of Section 44 of the Employment Rights Act and does not disclose any relevant information for the purposes of Section 43B of that act.

[217]I have commented above that Mr Lawal’s actions in sending this e-mail disregard the very sensible grievance policy that the Respondent has adopted. I return to this below but I find that Ian Martin was justifiably exasperated by the approach of Mr Lawal. The e-mail of 20 November 2022

[218]I have summarised Mr Lawal’s e-mail sent on 20 November 2022 above. The detail of what the collective grievance was said to be about is distilled into 5 bullet points. Each starts with the word ‘dispute’. The e-mail is devoid of any detail about what has given rise to those disputes.

[219]One bullet point states that ‘Dispute and unhappy about health and safety measures’. I have considered whether this qualifies for protection under subsection 44(1)(c). I find that it cannot. That subsection requires the employee to bring to the employers attention some ‘circumstances’. I do not consider that that requirement is satisfied by an employee using the wording set out by Mr Lawal. The same is true of each of the other bullet points. I would not suggest that the employee need to set out huge detail of the circumstances giving rise to a concern but they must certainly say something about them. Mr Lawal says nothing.

[220]I then consider whether the e-mail qualifies for protection under Section 43B. I need go no further than the issue of whether the e-mail contains information that tends to suggest any wrongdoing. It does not. It only tells the reader that Mr Lawal and the unidentified colleagues he speaks for are unhappy about 5 aspects of their treatment. What that treatment might be is not identified. I find that in the circumstances there is no disclosure of information in the sense identified in Kilrane. It follows that there are no protected disclosures in this email. The e-mail of 26 November 2022

[221]In response to Mr Martin’s suggestion that his grievances are revisiting matters raised in the first grievance Mr Lawal sent a further e-mail on 26 November 2022. He identified what he said to be new points not covered in the initial grievance by listing 4 bullet points.

[222]For exactly the same reasons as I have set out in respect of the e-mail of 17 November 2022 this e-mail does not fall to be protected either under Section 44 or under Section 43B. It does not set out or indeed give any clue as to the factual circumstances giving rise to the dispute. I shall not repeat the reasoning I set out above. The e-mail of 28 November 2022

[223]On 28 November 2022 in purported compliance with Mr Martin’s request that he disclose the nature of the grievance the Claimant produced a document where he sought to explain the grievance in two paragraphs. I have set those out in my findings of fact above.

[224]I shall deal firstly with the question of whether each paragraph qualified for protection under Section 44 before considering whether they amount to a qualifying/protected disclosure.

[225]The first paragraph refers to security guards being expected to do tasks beyond their job description. I do not consider that Mr Lawal in that paragraph draws attention to any relevant ‘circumstances’. There is nothing more than a bare assertion that the security guards are working in excess of their contractual obligations. There is nothing to tell the reader that those ‘circumstances’ have anything at all to do with health and safety.

[226]Mr Lawal is on stronger ground when it comes to the second paragraph. He expressly refers to health and safety. He gives four examples. He refers to the temperature in the rest facilities. The drinking water and filter. He says that the bins are not regularly emptied. He finishes by saying that there is a lack of risk assessments.

[227]I find that Mr Lawal was genuinely exercised by each of the matters he raised. I consider that his e-mail does bring the Respondents attention to circumstances connected with his work. The remaining question is whether he reasonably believed that these circumstances were harmful or potentially harmful to health and safety.

[228]What emerged during the grievance meeting was that Mr Lawal was broadly correct that there had been historical issues with heating in the rest area, that there had been a delay in changing a drinking water filter and that the bins had not always been emptied. These were considered by Mr Lawal’s own trade union representative to be low level matters that should have been addressed through collective responsibility or at a low level. I agree but I do not think that means that the requirements of the section were not met when these low level matters were raised. I find that in the circumstances Mr Lawal could and did reasonably believe that the matters he set out in his e-mail drew attention to circumstances that could potentially be harmful to health and safety.

[229]I draw a distinction between the low level matters and Mr Lawal’s suggestion that there was a lack of risk assessments. I would accept that if Mr Lawal had reasonably believed that there was a failure to conduct risk assessments then his comments would qualify for protection. A belief in a state of affairs will not be reasonable if it is founded on a mere suspicion. A reasonable belief require an evidential foundation. I had no evidence from Mr Lawal that he was correct in his assertions about risk assessments or that he had a reasonable basis for suggesting that there were no risk assessments. The Respondent has provided risk assessments within the bundle. I am not satisfied that Mr Lawal had any reasonable basis for suggesting that they were not being completed properly. That appears to have been the position adopted by the Trade Union representative brought in by Mr Lawal to support his grievance.

[230]I then turn to whether this e-mail included any qualifying disclosures. I do so despite the fact that it is somewhat academic in the light of my conclusion that it was protected under Section 44.

[231]I shall deal with each paragraph in turn. I need to ask whether the first paragraph contains sufficient information to satisfy the requirement explained by Kilrane. There is information in that paragraph. It is said that the Security Guards are doing duties in excess of contractual requirements. In shorthand it is suggesting that there is a breach of contract. I accept that no details are given about which duties are said to exceed the contractual requirements but it cannot be said that there is no information. It is somewhat borderline but I am satisfied that there is just enough there to satisfy the Kilrane test.

[232]I would accept that Mr Lawal actually believed that expecting the security guards to undertake some duties was a breach of contract and that pointing this out in his e-mail tended to show that to be the case. I note that Mr Martin had to spend some time reviewing the job description before he concluded that the Claimant was wrong. I shall not deal with the issue of whether the Claimant’s belief was reasonable. I shall move on to the fifth question and ask whether it was reasonable for the Claimant to believe that making this disclosure was in the public interest. I find that the Claimant’s complaints were in essence minor gripes about the extent of his and the other security guards duties. I need to consider whether raising those matters could reasonably be considered to be in the public interest. I have no hesitation in saying that it was not reasonable to regard these matters as being in the public interest. I take into account the fact that a number of security guards were affected but other than numbers there is nothing at all to attract the public interest in these disclosures. It appears to me that this is an example of the mischief that the introduction of the public interest test was intended to avoid.

[233]I turn then to the second paragraph. I repeat what I have said about the level of detail provided. I consider that Mr Lawal does provide information about the health and safety issues he has identified.

[234]I would further accept that Mr Lawal subjectively believed that the first three matters he drew attention to tended to show that the health or safety of an individual was likely to be endangered or that there was a legal obligation to address these three issues that was likely to have been breached. In respect of the risk assessments I do not find that Mr Lawal subjectively believed that there was any wrongdoing. I find that his state of mind was that he suspected that there might have been. I do not find that he actually believed that what he said about risk assessments tended to show that any wrongdoing was likely at best he believed it was a possibility. If I am wrong about that I find that he could not have reasonably believed that what he said about risk assessments tended to show any relevant wrongdoing had occurred, was occurring or was likely to occur.

[235]In respect of the first three matters raised by Mr Lawal I would accept that his belief that the information he disclosed tended to show the matters set out in sub-section 43B(1)(d) was reasonable. There is no lower threshold to the type of harm envisaged by that sub-section. In other words the endangerment need not have serious consequences.

[236]I would further accept that Mr Lawal believed that the matters he raised were in the public interest. I need to consider whether that belief is reasonable. I consider the level of potential harm that might be suffered by a worker is relevant to that issue. The greater the potential harm the more likely it is that raising concerns about a workplace would be in the public interest.

[237]I have had regard to the guidance given in Chesterton. I have come to the conclusion that it was not reasonable for Mr Lawal to believe that his disclosures were in the public interest. I consider that question to be quite finely balanced given that the nature of the disclosures concerned health and safety. There is a public interest in the promotion of health and safety that I should not disregard. That said it does not mean that there is a public interest in every single detail of health and safety at work. The matters raised by Mr Lawal concerned minor issues with a low risk of serious injury. They concerned a group of people and I need to have regard for that. I remind myself that I am asking if Mr Lawal’s belief was reasonable and not substituting my own view. Balancing those matters together I conclude that Mr Lawal’s belief that raising his concerns was in the public interest was not reasonable. That conclusion is somewhat academic in the light of my conclusion under Section 44 where there is no public interest test.

[238]It follows that I find that Mr Lawal’s e-mail of 26 November 2022 is protected as an act under Section 44 but was not a protected disclosure for the purposes of Section 47B of the Employment Rights Act 1996. The 49 point document produced at the grievance meeting on 9 December 2022.

[239]The Claimants say that they all contributed to formulating the 49 point document handed to Mr Martin at the grievance meeting on 9 December 2022. Only Mr Lawal and his trade union representative attended that meeting. I am satisfied that the other three Claimants were consulted about what was in that document. I am not satisfied that they had any hand in drafting the words used. I make that finding because if it was drafted in parts I would expect there to be some documentary evidence such as text messages and e-mails to show that. I also considered the evidence given by Mr Lancaster, Mr Benpah and Mr Haque to be vague in respect of their role.

[240]I will seek to deal with this document in a proportionate way. For the reasons I explain below I accept that passages in this document attract the protection of Section 44. Numerous passages are not protected. As briefly as possible I will seek to explain those conclusions. My references to paragraph numbers are references to the numbered paragraphs of the document at page 932 of the bundle.

[241]I shall start by identifying matters which I find are protected by Section 44 of the Employment Rights Act 1996.

[242]At paragraph 4 the document expands upon what was said in Mr Lawal’s brief e-mail of 26 November 2022. It is said that one radiator in the rest area is not working. It is said that officers complain of the cold and wear additional clothing. A suggestion is made that being cold can lead to illness. In dealing with this paragraph I repeat what I have said in respect of the same issue raised in Mr Lawal’s e-mail of 26 November 2022. I find that referring to a non-functioning heater does draw attention to circumstances in the workplace. I accept that Mr Lawal believed that a cold restroom was potentially harmful to health and safety. I consider that his belief was reasonable. Not everybody would share that belief but that is not the test I need to apply.

[243]The Respondent, through Ms Hicks say that the document provided by Mr Lawal was not ‘reasonable means’ of drawing attention to these issues. I fully accept that Mr Lawal has flouted the guidance given by the grievance policy and almost completely ignored Mr Martins pleas for advance notice of what would be raised in the grievance. Against that Mr Martin did not suggest that Mr Lawal failed to conduct himself in a polite manner. It appears that the meeting was constructive. Mr Martin simply told Mr Lawal that he needed to raise his concerns separately to the grievance meeting. Whilst I accept that the late introduction of these matters was unnecessary, inconsiderate and annoying I do not find that these matters are sufficient to say that the concerns were not raised by reasonable means robbing them of any protection at all.

[244]I therefore conclude that paragraph 4 qualifies for protection under Section 44 of the Employment Rights Act 1996.

[245]Paragraph 15 draws attention to the rise in assaults on officers. Complaint is made that there is no effective exclusion of the members of the public involved in these assaults. Paragraphs 16, 17 and 18 expand upon this. I find that the document does draw the Respondents attention to circumstances in the workplace that have a significant bearing on the health and safety of the security guards. There was no suggestion in the evidence that these concerns were not genuinely held by the security guards and were very real. That is not to say necessarily that any more could be done. That is no part of the test I need to apply. I am satisfied that the employees reasonably believed that these circumstances were potentially harmful to their health and safety. As such these paragraphs qualify for protection under Section 44.

[246]Paragraphs 26 to 30 expand upon the matters raised in Mr Lawal’s e-mail of 26 November 2022 and all concern the rest facilities known as the FCC. I adopt the reasons I have already given for accepting that raising these issues qualifies for protection under Section 44 of the Employment Rights Act 1996.

[247]Paragraph 37 raises the very serious issue of the security guards having some responsibility to deal with suicides. A suggestion is made that this traumatises the employees and that paid leave might facilitate recovery. It was common ground that the officers had been expected to deal with suicides. I find that in raising this matter the employees are drawing attention to a matter that they reasonably believed potentially harmed their health and safety. The risk of harm in dealing with suicide by jumping is self-evident. I find that these concerns were quite properly raised by those persons expected to deal with the aftermath of such tragedies. I find that raising this matter is protected by Section 44 of the Employment Rights Act 1996.

[248]Paragraph 41 repeats Mr Lawal’s suspicion that there are no risk assessments for lifts and escalators. I repeat my reasons set out above for concluding that this assertion, and that is what it is, is not protected by Section 44. There was no reasonable belief but what turned out to be an unreasonable suspicion that health and safety might be harmed.

[249]I have considered whether any of these matters I have expressly dealt with above also fall to be protected under Section 43B and qualifying disclosures. I shall take paragraphs 15 and 37 together. Those paragraphs raise concern about assaults on officers and the effect of witnessing and dealing with traumatic events. I am satisfied that each of those paragraphs contains information. It is immaterial that that information was already known to the Respondent. I am further satisfied that the employees who saw and contributed to this document all believed that the information tended to show that the health and safety of officers (and the victims of suicide) were likely to be endangered and that drawing attention to this was in the public interest. I then go on to ask whether those two subjective beliefs were reasonable. I am satisfied that they were. As I indicated above whether some workplace health and safety risk engages the public interest is a matter of degree. Here there is the potential for serious harm through assault or exposure to trauma. I find that there is a strong public interest in raising concerns of this gravity.

[250]I reach the opposite conclusion in respect of the concerns raised about the FCC. For the reasons I have already given I do not accept that there is any public interest in what are minor health and safety issues.

[251]At paragraph 6 the employees raise the fact that they believe that the security guards employed by McKenzie Arnold are being paid £13.60 per hour as opposed to the £12.21 that they receive. This complaint formed part of the basis of the equal pay claim. Notwithstanding the withdrawal of the equal pay claim the Claimants say that they made a protected disclosure when this was raised. I note that at the end of paragraph 6 the employees say ‘Unethical?’.

[252]The Claimants say that they believed that the information in this paragraph tended to show the breach of a legal obligations included in the equal pay provisions of the Equality Act 2010. It is necessary for me to consider whether that was a belief that they actually held. I am not satisfied that at the time the Claimant’s had given a single thought to the provisions of the Equality Act 2010. I find that if they had Mr Lawal would have included some reference to that rather than use the word ‘unethical’. I find he would at the very least make some reference to sex as being a reason for the disparity in pay.

[253]When the Claimants brought their claim they have sought to squeeze their complaints about other security guards remuneration being greater than theirs by reference to the equality act and saying that there is a single source of pay. I find that they came across those concepts only when they needed to find some cause of action required to redress what they considered was basic unfairness. I do not find that they had any legal obligation in mind when they brought their complaints. On that basis there was no protected disclosure as the Claimants did not hold the necessary subjective belief in legal wrongdoing.

[254]I shall deal with the balance of the complaints all together. There are numerous complaints about pay and the scope of the security guards duties. I have alluded to such complaints when analysing the documents. These are not health and safety concerns and fall outside Section 44. In order to qualify as protected disclosures it would be necessary for it to be reasonable to believe that raising the matters complaints was in the public interest. I find that the balance of the paragraphs deal with which concern a private employment relationship and the terms and conditions that applied. I find that insofar as the Claimants actually believed that it was in the public interest to raise those complaints their belief was unreasonable. Their complaints were typical issues of a private employment relationship. The meeting of 9 December 2022

[255]As I have said, of the Claimants, only Mr Lawal attended the meeting with Mr Martin on 9 December 2022. In considering whether anything Mr Lawal said during that meeting was protected by sections 44 or 43B of the Employment Rights Act I am able to draw on my conclusions in respect of the documents produced that cover the same ground. I recognise, as I must, that my focus needs to be on Mr Lawal’s beliefs at the point of the meeting and not before. I find that Mr Lawal’s beliefs, or lack of them, did not change or develop between preparing his written documents and the meeting

[256]I have summarised the discussions held during the meeting in my findings of fact above. I shall not deal with every word spoken during that meeting but shall set out my conclusions by reference to the topics raised.

[257]Mr Martin sought to impose some structure to the meeting by insisting that the discussions followed the topics identified in Mr Lawal’s e-mails prior to the meeting. Without objection he identified three themes. The first of these was the suggestion that the security guards were expected to do duties that went beyond their job descriptions. The latter two (described as 2a and 2b) dealt with matters of health and safety.

[258]I have carefully reviewed the notes of the discussion in relation to the issue of working beyond the job description. There is no mention of health and safety during those discussions. In order to qualify for protection under Section 44(1)(c) a worker needs to draw attention to circumstances at work which they believe are harmful of potentially harmful to health and safety. This requires a finding of fact about the subjective belief of Mr Lawal. I do not accept that when Mr Lawal raised the issues of working beyond his job description he thought that he was raising matters of health and safety. There is nothing in the matters raised that might reasonably be regarded as a health and safety matter other than in the most general sense that the volume of work might possibly become oppressive. Mr Lawal does not go as far as to suggest that the security guards are finding their workload overbearing. I have concluded that Mr Lawal did not believe that these matters were harmful or potentially harmful to health and safety. I should go on to say that if he did his belief was not reasonable. It follows that during the discussion of the first issue Mr Lawal did not say anything that fell to be protected under Section 44(1)(c).

[259]I turn to the question of whether drawing attention to these matters amounted to a qualifying disclosure for the purposes of Section 43B of the Employment Rights Act 1996. Here I draw on the conclusions I have reached above. I am satisfied that Mr Lawal conveyed some information. He identified a number of tasks and suggested that they fell outside his job description. I would accept that Mr Lawal believed both that what he was saying tended to suggest that there was a breach of a legal obligation namely the contractual obligations between the Respondent and the security guards and that his disclosure was in the public interest. It is not the Claimants pleaded case that this was the relevant legal obligation. However, even if it had been I would have found that there was no qualifying disclosure. I find that any belief that Mr Lawal had that his disclosure in relation to these matters was in the public interest was not reasonable. The scope of the duties of the security guards was a contractual matter. Whilst there were a number of security guards other than that factor I am unable to identify any other feature that would form the basis of a reasonable belief that the disclosures were in the public interest. I find that any belief that they were was unreasonable. It follows that there were no qualifying disclosures during the discussions of issue 1.

[260]The discussions surrounding what Mr Martin referred to as point 2a were very brief indeed. Point 2a was the issue of whether there were health and safety issues within the FCC rest area. The conversation was rapidly truncated when Mr Lawal accepted that he had not raised these issues with his local managers before bringing the grievance. His trade union representative, Charles Pittaway, took over the conversation and explained to Mr Lawal that the low level issues he had identified should not have been raised as part of the grievance before they were discussed locally. He suggested that some of the matters should have been dealt with ‘by taking a bit of ownership and common sense’.

[261]From the record of the meeting I am satisfied that the only matter raised by Mr Lawal during the meeting was a brief interjection to say that the air conditioning system needed cleaning. Whilst that was a brief comment I do find that it is a matter that is protected by Section 44(1)(c). I am satisfied that when Mr Lawal said that the air conditioning system needed to be cleaned he was drawing attention to circumstances (a dirty air conditioning system) which he reasonably believed were potentially harmful to health and safety. As I have said above there is no requirement in sub-section 44(1)(c) for the risk to health and safety having severe consequences of that the risk be any higher than a ‘potential’.

[262]I shall deal only briefly with the question of whether raising this matter also amounted to a protected disclosure as in the light of the conclusion above it is somewhat academic. I shall move directly to the requirement that Mr Lawal’s belief that raising this matter was in the public interest was reasonable. The complaint was made in respect of the facilities used by the security guards and not the whole building. It was a minor matter of routine maintenance. I do not consider that it was reasonable for Mr Lawal to believe that raising this matter was in the public interest. He was complaining about the facilities provided to a particular group of people and speaking on behalf of that group. Drawing on my reasoning above I do not consider that Mr Lawal had any reasonable basis for thinking that raising such a minor issue was in the public interest.

[263]I then turn to what was described as issue 2b. I consider it important to note that Mr Martin had identified that this point concerned health and safety concerns. The first matter raised by Mr Lawal concerned the temperature of the shopping centre. It is implicit in the notes of the meeting that Mr Lawal was suggesting that the security guards were expected to work in temperatures that they thought were too cold. Mr Martin declined to reopen discussions about uniform.

[264]Mr Lawal expressly referred to the risks of a security guard being asked to deal with a suicide. He is recorded as asking what level of aftercare was being provided. It is implicit in what he said that he was suggesting that not enough was being done.

[265]I find that in raising these two matters Mr Lawal reasonably believed that he was drawing attention to matters that were potentially harmful to health and safety. Working in cold temperatures and being exposed to traumatic events are in my view matters that directly engage health and safety concerns. The protection of Section 44(1)(c) is not lost just because there is little more an employer can reasonably be expected to do about a risk. Drawing on my conclusions when the same issues were raised in the documents I am satisfied that raising these matters engaged the protection afforded by Section 44(1)(c).

[266]I then turn to whether the same matters are qualifying disclosures for the purposes of Section 43B. I find that Mr Lawal provided at least some information that tended to show that the health and safety of the security guards was likely to be endangered. I consider that the word ‘endangered’ does not require it to be probable that a person would be harmed. Endangered suggests that it is sufficient if there is a risk that they would be.

[267]I am satisfied that Mr Lawal believed that what he said tended to show that there were health and safety risks in the workplace. In respect of the exposure to suicides by jumping I would readily accept that his belief was reasonable. I reach the same conclusion in respect of him drawing attention to working in the cold. I may not agree with his assessment of the risks but I cannot say that his belief was unreasonable.

[268]I am satisfied that Mr Lawal believed that in speaking up about these matters he was acting in the public interest. Drawing on my reasoning above I find that in respect of the references to traumatic events any such belief was reasonable. The potential consequences are sufficiently serious as to engage the public interest. I consider the question of whether raising working in the cold could reasonably be regarded as being in the public interest is more finely balanced. There was a large group of people affected by the issue. Working in cold conditions does engage health and safety concerns. I have come to the view that it was not unreasonable to regard this as being a matter of public interest. Whether any treatment was ‘on the ground’ of making protected disclosures and/or bringing health and safety concerns to the attention of the Respondent.

[269]The four Claimants raise separate complaints about their treatment each saying that there was some detriment inflicted on the ground of their involvement in the two collective grievances. I shall deal with all the Claimant’s individually. Before doing so I must address a point raised by Ms Hicks where she suggests that unless a claimant is identified as an author of a document or spoke at a meeting they cannot be considered to have done anything that was protected by the legislation.

[270]As I have indicated above I do not consider that Mr Haque can be said to have done anything protected by the legislation in respect of the first collective grievance. He was not employed at the time. The other claimants could not be regarded as speaking on his behalf. I find that he cannot rely on things done by others.

[271]I am not persuaded that in circumstances where concerns are raised collectively it is necessary for all members of a group to write, speak or participate in a meeting. In section 43B of the Employment Rights Act 1996 there is a requirement that there is a disclosure of information. There is no restriction on how that disclosure is made. I consider that if two employees stand before the employer having decided that the more articulate one will do the talking on their behalf then both of them disclose information.

[272]I accept that where a group of workers raise a collective concern and the employer is unable to identify who was or was not involved then it is much less likely that a tribunal would conclude that any detriment was on the ground of anything protected by the legislation. However, I do not say that it would be impossible for the employer to do so. If the employer retaliates because of something protected by the legislation and the person they retaliate against was a participant in that protected matter then in my view the claim would be made out. I had those matters in mind in reaching the conclusions below.

[273]I find that in respect of the first collective grievance Mr Lawal spoke on behalf of both Mr Lancaster and Mr Bempah when he wrote to Mr Martin. All three attended the grievance meeting. Mr Martin would not have known that the emails were sent on behalf of those particular individuals but he understood that they were sent on behalf of a group of employees. Once Mr Lancaster and Mr Bempah attended the grievance meeting Mr Martin would have become aware that they had been a party to the earlier correspondence.

[274]In respect of the second collective grievance no full list of participants was ever identified. I am satisfied that Mr Haque, Mr Lancaster and Mr Bempah all agreed that Mr Lawal would raise concerns on their behalf. I do not find that Mr Haque had any great involvement but he lent his support to the grievance.

[275]Before turning to the individual claims I shall make some general points that have informed my decisions. I have accepted that the Claimants raised issues that concerned health and safety. These ranged from trivial complaints to much more serious matters. Having regard to the records of the meetings conducted by Mr Martin and his outcome letters I find that he was never dismissive of these complaints being raised. He took then seriously and listened to what the employees said. I was left with no sense that Mr Martin resented issues of health and safety being discussed. I find that he, and the other Respondent’s witnesses all recognised that the job done by the security guards was a tough one carried out with some real risk to their personal safety.

[276]I find that the actions of the Claimants and in particular Mr Lawal did cause the three management witnesses, Mr Martin, Mr Bland and Mrs Winslade to become exasperated. Ms Winslade could not bear to deal with Mr Lawal. Mr Bland doubted that he would have the patience to deal with a grievance appeal. The HR department regarded the employees as hard to manage. I need to consider carefully whether this state of affairs was on the ground that the Claimants had done something protected by the legislation or something entirely severable from those prohibited grounds. Mr Haque

[277]Mr Haque brings a single claim. The list of issues sets out the detriment he complains of which is that the second collective grievance was not upheld. It follows that he is suggesting that Mr Martin and Mr Bland came to the conclusions they did in respect of the grievances influenced in part at least because of the acts I have identified as protected by the legislation.

[278]Mr Martin’s findings in respect of the second collective grievance are set out in his outcome report. He dealt with the three points outlined at the start of the meeting as points 1, 2a and 2b. I am satisfied that the only reason he limited his consideration to these points is that he was quite properly concerned about Mr Lawal effectively ambushing him with a 49 point document. He had asked for details of the grievance in advance and quite properly and fairly distilled those points into the three issues he identified.

[279]Mr Martins analysis of point 1, the issue of working beyond the job description, was not the subject of any great challenge by any of the Claimants. Whilst I am charged with deciding not whether the conclusions are right but whether they were influenced by matters protected by the legislation I was not persuaded that there were any flaws in Mr Martin’s decision making process. In his report he comprehensively explains why he believes that the duties the Claimants had complained of all fell within their job descriptions.

[280]The manner in which Mr Martin dealt with point 2a is entirely consistent with the manner in which the matter had been dealt with in the grievance meeting. Charles Pittaway on Mr Lawal’s behalf had effectively accepted that the minor health and safety issues relating to the FCC area needed to be raised at a managerial level. In his report Mr Martin sets out his findings and explains what is being done to improve those facilities. As I have said above he is in no sense dismissive of the concerns and has clearly taken the time to investigate a number of facilities issues.

[281]When dealing with point 2b Mr Martin acknowledges that the concerns raised had been discussed constructively. At the same time he suggests that they could have been resolved informally. I see nothing surprising in that. He sets out his findings in respect of the risk assessments and effectively concludes that all proper measures are in place. Again I heard no evidence that would lead me to conclude that that was manifestly incorrect.

[282]I accept that Mr Martin was by the time of the second grievance exasperated at the approach taken by Mr Lawal and, by extension, those participants in the second collective grievance. I am unsurprised. Mr Lawal’s approach to bringing grievances and his litigious approach to workplace issues would have been very hard to manage.

[283]Despite the fact that Mr Martin had some cause to be exasperated with the claimants I do not find that he allowed himself to be influenced by that in any way when reaching his conclusions in respect of the outcome of the second collective grievance. I therefore do not have to grapple with the question of whether this exasperation was distinct from any act protected by the legislation.

[284]Mr Martin in his conclusions and recommendations was careful to acknowledge that the health and safety concerns around the FCC concerns were properly raised. He in fact partially upheld the grievance. His reservation was only that the issues could have been dealt with more speedily had they been raised informally.

[285]Having reviewed the outcome of the grievance I am not satisfied that there is anything that a reasonable employee could complain of. I consider the outcome to be fair balanced and accurate. In the circumstances I am not satisfied that Mr Haque has established that the outcome of the grievance was a detriment.

[286]It appears that implicit in the way that the matter is put in the list of issues Mr Haque complains that Mr Martin did not deal with the 49 point document raised by Mr Lawal. Again I am not satisfied that that is something a reasonable employee could consider a disadvantage. Mr Martin made it clear that if the employees wanted those matters to be dealt with then they could be if the proper grievance process was followed. That was an entirely reasonable response.

[287]In any event I am satisfied that the only reason that Mr Martin reached the conclusions that he did was that he believed that he had fairly and properly addressed the issues raised by the security guards and come to the right conclusion. I find that he was not influenced in any way by the subject matter of the grievances and in particular those matters where I have held that the claimants did something protected by the legislation.

[288]I then turn to the question of whether Mr Bland was influenced by any action protected by the legislation when he dismissed the appeal. I note that he did so without really considering the substance of the appeal. As such I would accept that Mr Haque might reasonably believe he was disadvantaged.

[289]I accept Mr Bland’s evidence that the reason he did not deal with the substance of the appeal in the sense that he did not deal with the written document produced by Mr Lawal was that he concluded that the document failed to say why Mr Martin was wrong in respect of any conclusions. I am not convinced that at some level the document did not challenge Mr Martin’s conclusions but I accept it did not contain conventional grounds of appeal.

[290]I have accepted that Mr Bland was exasperated with the security guards. He believed with real cause that Mr Lawal’s approach to the grievance process failed to follow the letter or the spirit of the grievance policy. He had set aside time for a meeting and Mr Lawal declined to explain the basis of the appeal. I can understand how annoying that must have been.

[291]I find that Mr Bland was not influenced in any way by the actions I have found to be protected by the legislation. I accept that he dealt with the appeal in the way he did because he decided that there was no proper grounds of appeal. Insofar as that reflected any exasperation I find that matters that gave rise to that exasperation – the manner in which the grievances were raised – is entirely separate from the actions protected by legislation.

[292]It follows that the only claim brought by Mr Haque fails and is dismissed. Mr Bempah

[293]Mr Bempah brings two claims. He says that the dismissal of the first and second grievances were detriments imposed on the ground that he did something protected by the legislation.

[294]I shall deal with the outcome of the first grievance first. It is not correct to say that Mr Martin dismissed all aspects of the first grievance. He did not he partially upheld some aspects of the grievance. In his outcome letter he explains fully the reasons that he came to the conclusions that he did.

[295]I accept that there were some aspects of the outcome of the grievance that would have been disappointing to Mr Bempah. The employees had made a spirted plea for an increase in their basis pay which was rejected. I consider that Mr Bempah could reasonably consider the outcome to be a disadvantage.

[296]I turn to the question of whether the matters I have found protected by the legislation played any part in the reasons for not upholding any aspect of the grievance.

[297]I consider the explanations given by Mr Martin for his conclusions in the outcome letter to be clear, courteous and entirely reasonable. I am satisfied that the reasons he gave for his conclusions in respect of the first grievance were the only reasons he had and that he was not influenced in any way adverse to the claimant’s interests by them doing any act protected by the legislation. I found no trace of any exasperation in the manner in which Mr Martin dealt with the grievance. If by this stage he had become frustrated by the way in which Mr Lawal drip fed information into the grievance process I find that he put that entirely to one side when he looked at the substance of the complaints.

[298]In respect of Mr Bempah’s complaint relating to the outcome of the second grievance. I need only repeat my conclusions in respect of the same claim set out by Mr Haque. Whilst Mr Bempah has established that he was involved in more actions protected by the legislation I am satisfied that Mr Martin and Mr Bland have shown that their reasons were nothing whatsoever to do with those actions. Mr Lancaster

[299]Mr Lancaster does not complain about the outcome of the grievances. If he had the complaints would have failed for the reason I give above. His complaints are focused on the incident that took place between him and Mrs Winslade on 8 February 2023.

[300]I have set out my findings of fact about that incident above. I have found that Mr Lancaster was at fault in not going out on patrol and I have rejected his excuse for not doing so. I have accepted that Mrs Winslade scolded him. He then reacted to that by following her and saying do not talk to me like a parent. It has not been necessary for me to make a finding about whether Mr Lancaster shouted at Mrs Winslade. I accept that she was upset when he did not do as she had instructed and then criticised her.

[301]The issue for me is whether the involvement of Mr Lancaster in any acts protected by the legislation contributed to the way in which Mrs Winslade addressed him or informed the decision to instigate a disciplinary process.

[302]I have accepted that Mrs Winslade was exasperated with Mr Lawal and find that the same is true of Mr Lancaster. She suggests in her e-mail of 9 February 2023 that she had other difficulties trying to persuade Mr Lancaster to do his job.

[303]I am satisfied that the only reason that Mrs Winslade told Mr Lancaster that he should take up his patrol and pour away his coffee was that he was not where she knew he was meant to be. I find that she was right about that and that Mr Lancaster has subsequently made excuses for that. Whilst I accept that Mrs Winslade scolded Mr Lancaster, falling slightly short of the professional standards she has referred to. I find that she did so in exasperation at the situation unfolding on that day. I find that she gave no thought whatsoever to Mr Lancaster’s involvement in any acts protected by the legislation.

[304]I am further satisfied that the only reason that Mrs Winslade reported the matter and that the matter proceeded to a disciplinary investigation was that she thought, for good reasons, that Mr Lancaster had been rude and insubordinate. That is a reason completely divorced from any act protected by the legislation. It would have been surprising in my view if the HR department had not reacted by appointing a person to investigate the matter.

[305]Mr Lancaster complains that Mr Badr-Safdari is in reality a junior employee to Mrs Winslade and as such it was unfair that he investigated the matter. Whilst I would accept that criticism in part the outcome arrived at by Mr Badr-Safdari showed no sign whatsoever of any bias towards Mrs Winslade. On the contrary I find that Mr Lancaster was very fortunate.

[306]It follows that I find that any act protected by the legislation had no bearing whatsoever on this incident. Neither protagonist behaved well but there was no retaliation by Mrs Winslade for Mr Lancaster’s involvement in the grievances. This was a situation of his own making when he failed to do what he was expected to do. Mr Lawal

[307]Mr Lawal brings 7 separate detriment claims. Like Mr Lancaster he does not suggest that the outcome of the two grievances was a detriment. I find that he is right not to do so. Training opportunities

[308]This complaint concerns the fact that Mr Lawal was rostered for training on 23 January 2023 and that the training did not take place. I am satisfied that Mr Lawal could reasonably regard that as a disadvantage but note that he raised no issue about this at the time.

[309]I need to consider what the reason was for Mr Lawal being allocated other duties. I have come to the conclusion that the reason was that there was an operational need to postpone his training. I find that Mr Lawal recognised that at the time. Had he not done so I would have expected him to have complained on the day. He did not.

[310]In reaching that conclusion I am bolstered by the following evidence. The other claimants were allocated a training slot and completed their training. They too had involvement in the acts protected by the legislation. A further matter is the fact that Mrs Winslade put Mr Lawal on the roster in the first place. There was plainly no intention by her that he should not receive his training.

[311]I am satisfied that the operational reasons I have identified as the sole reason why the training did not go ahead were not influenced at all by Mr Lawal’s involvement in any act protected by the legislation. Keys Duties

[312]I have made findings about the periods when Mr Lawal was shown on the roster as having keys duties above. He is correct that that is what the roster showed but, he was not expected to carry out those duties. His complaint is directed only at the inclusion on the roster. In the light of that I can deal with this complaint very shortly: 312.1. I do not accept that merely being shown on a roster as having keys duties is something a reasonable employee could complain about in circumstances where Mr Lawal knew that his bad back was being accommodated with adjustments. 312.2. If I am wrong about that then the reasons for showing Mr Lawal as having Keys duties arose only because of the way the roster was operated and drawn up. It had nothing whatsoever to do with his personal circumstances or any involvement in the patters protected by the legislation. Criticising Mr Lawal’s dress

[313]This allegation concerns the occasions in February and May of 2023 when Mr Lawal was told that he could not wear a woollen hat.

[314]I accept the evidence from the Respondent that their agreement with Westfield incorporates a uniform policy. That policy permits the wearing of branded hats outdoors but not indoors. It appears that as a matter of practice an exception is made for religious headwear. On 15 February 2023 Mrs Winslade following up on the same advice from another manager told the Claimant that it was a breach of the uniform policy for him to wear his ordinary woollen hat indoors.

[315]I accept that the Claimant was cold and wanted to wear a hat indoors. As such notwithstanding the fact that the uniform policy was quite clear I accept that the Claimant could regard the instruction as a disadvantage.

[316]I am satisfied that the reason for Mrs Winslade’s treatment of the Claimant, and indeed that of any of the other managers who later commented upon the uniform policy was that what the Claimant was wearing was a breach of the agreed uniform policy. I find that that was the exclusive reason for the treatment and that the Claimant’s involvement in the actions protected by statute had nothing whatsoever to do with the decision to ask the Claimant not to wear his own hat.

[317]I shall deal separately with the incident in May 2023. I recognise that by that stage Mr Lawal and his colleagues had presented their appeal document to Mr Bland. I do not need to ask whether that document amounted to a further protected disclosure or an action protected by Section 44. My reasons for that are that I am satisfied that Edward Bland is not said to have been behind Victoria Winslade’s actions. Furthermore I am satisfied that whether that document was a further protected action its presentation had nothing whatsoever to do with what Victoria Winslade said to Mr Lawal on 15 May 2023.

[318]I find that the only reason that Mrs Lawal asked the Claimant to change his hat on 15 May 2023 was that she believed that his hat was a breach of the uniform policy. That belief was in my view entirely reasonable. That is nothing to do with the Claimant’s involvement in acts protected by statute.

[319]Mr Lawal has sought to expand his case in his witness statement and criticised another manager Jason Carroll in relation to comments about dress. That was not pleaded nor identified in case management. Mr Lawal did not apply to amend his claim. I should not determine an issue which is not properly before me. Delay in responding to Mr Lawal’s request to go on a trade union course.

[320]This allegation is coupled with the allegation made by Mr Lawal that Mr Martin failed to respond to his requests for leave. Both fall to be considered together.

[321]I rely on my findings of fact set out above and conclude that here was a marked delay in responding to Mr Lawal’s request for paid leave to go on a course. I accept that Mr Lawal was reasonably disappointed by this and that this amounted to a detriment.

[322]The key issue for me to decide is whether I accept Mr Martin’s explanation for the delay. In short he says that pressure of work over the Christmas period and dealing with the second collective grievance meant that he overlooked the Claimant’s request initially and then had to ask advice before he could respond. I say at once that these are not good reasons. The issue of whether the GMB was a recognised trade union should not have taken more than a few hours to find out. Even if there was a delay in obtaining that information some response was called for even if just an acknowledgement.

[323]I note in Mr Martin’s favour that before Christmas 2022 he responded on a regular basis with Mr Lawal and was proactive in encouraging a return to work after his shifts were cancelled.

[324]I need to have regard to the level of exasperation that by that stage I find Mr Martin had in his dealings with Mr Lawal.

[325]Ultimately I am satisfied that Mr Martin was telling me the truth about his reasons for the delay. I accept that he was very busy over Christmas. I find that he just let the correspondence slide whilst he worked on his report for the second collective grievance and concerned himself with his many other duties. That is not a good reason for the delay but it is a reason that has nothing to do with the actions protected by statute. It follows that both of these claims must fail. Victoria Winslade, Ian Martin and Rob Nicholas spoke badly of the Claimant in e-mails

[326]In the process of case managing these claims it has taken some time for Mr Lawal to give sufficient particulars of his claims in order that the Respondent can understand them and more importantly know which witnesses to call. At a case management hearing on 24 June 2025 EJ Gordon Walker declined to allow the Claimant to refer to comments by any additional named managers.

[327]Two emails sent by Mrs Winslade are complained of the first was sent on 4 January 2023. In that e-mail she says: ‘[Mr lawal] could not work on 19 December 2022as per his request when he then blew out and has consequently been signed off sick’. Mrs Winslade told me in her evidence that the expression ‘blew out’ is commonplace in the business and simply means that an employee did not complete a rostered shift. I do not accept that there is anything in Mrs Winslade’s e-mail that the Claimant could reasonably object to. It is factually correct and says nothing disparaging about him. I do not accept that this is a detriment.

[328]The next e-mail was sent on 15 May 2023. It was sent to Ian Martin and is a record of a conversation that Mrs Winslade had with Mr Lawal on that date. It covers a lot of ground. The part of the e-mail that Mr Lawal identifies as being derogatory is in the closing paragraph. Mrs Winslade tells Mr Martin that she has told Mr Lawal that he should wear a branded hat or religious headgear. She notes that in fact she has been more generous than the uniform policy because given that it was May the policy would not usually permit the wearing of a branded hat. She says: ‘think this is a battle I am happy to fall on’. What she clearly means is that she is prepared to turn a blind eye to Mr Lawal wearing a branded hat to avoid any conflict. I find that there is nothing in this e-mail that is unfair or derogatory. There is in my view nothing that a reasonable employee could complain of. I find that there is no detriment to Mr Lawal.

[329]On 1 June 2023 Mr Lawal raises the fact that he missed his training on January 2023 in an e-mail to Robert Nicholas. The context for this was that Mr Lawal had been chased to complete his e-learning. The issue of him missing training on 23 January 2023 had not been pursued by him at the time. Robert Nicholas sent an e-mail to Mrs Winslade and Mr Martin that said: ‘I will draft a response and discuss tomorrow. Have been biting my tongue prior to responding’.

[330]As a matter of fact the response that Robert Nicholas sent to Mr Lawal was a very helpful document that sought to assist Mr Lawal access his e-learning. In order to assess whether this amounts to a detriment it is necessary to put it in context. Had Mr Lawal not made a subject access request he would never have seen this e-mail. It is a discussion between managers in circumstances where Mr Lawal has responded to criticism that he had not completed training with a suggestion that his training of many months before had been overlooked. It is easy to understand why Mr Nicholas might want to pause before responding. Placing this e-mail in its full context I do not accept that it is something an employee could reasonably complain about. Any frustration was suppressed and not communicated.

[331]If I am wrong about that then I infer that the reason why this frustration is internally expressed related only to the content of the e-mail that it refers to. That had nothing whatsoever to do with any action protected by the relevant legislation. I find that the frustration evident in the e-mail is caused by Mr Lawal raking up old issues rather than getting on with his training.

[332]On 2 June 2023 Mr Martin comments on the clear and comprehensive e-mail produced by Mr Nicholas. He suggests that it is sent without any others cc’d ‘it does not turn into an e-mail tennis match’. Mr Lawal suggests that is derogatory. I do not agree. It is all too common for e-mails with numerous recipients to give rise to a duplication of effort and endless responses. I do not find that there is anything in this e-mail to which a reasonable employee would consider a disadvantage.

[333]It follows that I must dismiss this claim. Mr Lawal has not established that the e-mails he relies upon are anything that he could reasonably complain about. There was no detriment. Cancelling Mr Lawal’s shifts

[334]Mr Lawal brings two complaints. The first refers to 25 November 2022 and the second on 27 February 2023.

[335]On the first occasion on 25 November 2022 Mr Lawal’s shifts were cancelled by Mr Qammar. I have set out the circumstances that gave rise to that in my findings of fact above. In short Mr Lawal had said that he could not do some part of his duties because of his back and had offered to provide a medical letter. Mr Qammar decided that he should not be allowed to work until there was medical evidence that he could do so. The stand-off that resulted meant that Mr Lawal missed out on a number of shifts.

[336]I accept that as a matter of fact Mr Lawal was able to work provided that adjustments were made to his duties. This had been the position prior to 25 November 2022. As such I accept that he could reasonably consider being removed from his shifts until he provided medical evidence to be a disadvantage.

[337]I need to make a finding about the reasons for this treatment. In doing so I have regard to the fact that Mr Qammar’s decision was objectively unnecessary. On the other hand I accept his evidence that he was concerned that a security officer with a back injury might not be effective if called upon to intervene in any altercation as was not uncommonly the case.

[338]I accept the explanation given by Mr Qammar for his decision. He considered that if Mr Lawal was unable to do parts of his duties he should not be at work unless that was supported by medical evidence. I do not suggest that is a good reason but I accept that it is the genuine reason held at the time. That reason has nothing whatsoever to do with Mr Lawal’s involvement in actions protected by the legislation. It is a response to the situation at the time.

[339]The second complaint concerns some shifts cancelled on 27 February 2023. Again there is no dispute that Mr Lawal was told by a manager Jason Carroll he should be working on 27 and 28 February 2023. Mr Lawal was then informed by Mr Badr-Safdari that there had been an error and that person who had been expected to cover those shifts had not been allocated them in error. Mr Badr-Safdari set out his explanation to Mr Lawal as soon as Mr Lawal raised the issue. From Mr Badr-Safdari’s explanations I am satisfied that errors of this type could occur. Mr Badr-Safdari apologised to Mr Lawal and made proposals to avoid the situation arising again.

[340]I accept that Mr Lawal was inconvenienced and that this amounted to a detriment. I need to ask what the reason for the treatment was. I find that the reason for the treatment was human error as Mr Badr-Safdari explained as soon as he learned of the issue. I am satisfied that this was nothing more sinister than a mistake. That has nothing whatsoever to do with the involvement of the Claimant in any action protected by the relevant legislation.

Conclusion

[341]Whilst I have accepted that the claimants to some extent each had some involvement in actions protected by the relevant legislation I do not accept that any matter that they might reasonably complain about was on the grounds of those actions.

[342]I apologise for the delay in preparing this judgment. It took longer than I had anticipated and I have had a large number of other cases to deal with. None the less I am sorry for the inconvenience.