Mr A M Bolivar v M Three Corporate Consulting Ltd: 3200777/2024

EMPLOYMENT TRIBUNALS

Case No 3200777/2024

Between

Mr A M BolivarClaimant

M Three Corporate Consulting LtdRespondent

Before

Employment Judge Massarella

Members

Ms J. Houzer

Mrs B. K. Saund

In person for claimant

Date 20 November 2025

JUDGMENT

[1]the Claimant did not make qualifying disclosures (whistleblowing) to the Respondent;

[2]the claim of automatically unfair dismissal is not well-founded and is dismissed.

REASONS

Written reasons were requested by the Claimant at the end of the hearing in accordance with Rule 60(4) of the Employment Tribunal Procedure Rules 2024. The following reasons are provided. Procedural history

[1]The claim form was presented on 31 March 2024, after an ACAS early conciliation period between 19 February and 6 March 2024.

[2]At a preliminary hearing on 2 August 2024, I made detailed case management orders in preparation for a five-day final hearing. I allowed the Claimant, Mr Alexander Mora Bolivar, to amend his claim to include an additional alleged protected disclosure and directed both parties to provide further particulars and disclosure of documents by specified dates. The Claimant was ordered to clarify the dates and modes of his alleged disclosures and to confirm whether he intended to rely on his grievance of 31 January 2024 as containing disclosures.

[3]At para 49 of my PH summary, I addressed the logistics of the Claimant’s attendance at the final hearing as follows: ‘The Claimant attended this preliminary hearing from Brazil. An issue arose as to how he proposed to attend the final hearing. Brazil does not permit witnesses to give evidence remotely in UK courts or tribunals. The Claimant told me that he had had to leave the UK because he feared being extradited and sent to prison in the UAE because of the legal breaches for which he alleges the Respondent was responsible. I asked him if there had been any indication that the UAE was interested in him in relation to his presence in the country for six weeks more than six months ago. He confirmed that there had not, nor had the UAE taken any steps to seek his extradition. I explained to the Claimant that his options were: to attend the hearing in the UK; to travel to a third country, which would permit him to give evidence remotely in a UK Employment Tribunal; or to attend remotely from Brazil, in which case his participation would be limited to tendering a written witness statement and making submissions. The Claimant stated that he would attend the Tribunal in UK. I told him that the position could be reviewed at the listing hearing, if he changes his mind about this. The Claimant asked if the Tribunal could disclose the list it holds of countries which do/do not permit evidence to be given from their country. I have made enquiries and that is not possible, in part because the list changes frequently as the situation evolves in certain countries. The Claimant may find the Presidential Guidance helpful [I provided the link].’

[4]At the same hearing a detailed list of issues was agreed, focusing on whether the Claimant was automatically unfairly dismissed for making protected disclosures.

[5]A second preliminary hearing was held on 4 November 2024 before EJ Musgrave-Cohen. That hearing, conducted via CVP, had originally been listed as a listing hearing but was converted into a case management hearing owing to the number of outstanding matters. She reviewed the parties’ compliance with orders and addressed delays caused by the Claimant’s failure to provide disclosure and to particularise his alleged protected disclosures. She reiterated the importance of compliance and confirmed that the Claimant understood what was required of him and by when. The Judge varied the case management orders and emphasised that further delay could jeopardise readiness for the final hearing. She listed the final hearing for five days in March 2025. The Respondent applied for strike-out of the claim under Rule 37 or, alternatively, for a deposit order under Rule 39.

[6]EJ Musgrave-Cohen ordered the Claimant to provide further particulars by 11 November 2024 of emails and messages between him and Ms Moore that he asserted were missing from the disclosure already provided; by the same date, he was ordered to provide the precise dates of the protected disclosures and of the mode of disclosure.

[7]At a further preliminary hearing held on 6 February 2025, EJ Salter considered the Respondent’s application for strike-out, deposit order, or unless order following the Claimant’s non-compliance with earlier case management directions. He granted an unless order requiring the Claimant to comply with EJ Musgrave-Cohen’s earlier order by 13 February to provide documents relevant to the schedule of loss, failing which he would be barred from relying on the relevant evidence.

[8]In addition, two of the Claimant’s alleged protected disclosures (paragraphs 3.1.1.2 and 3.1.1.5 of the Musgrave-Cohen order) were struck out on the basis that the Claimant had failed to comply with the order. Directions were made for the exchange of witness statements and finalisation of the hearing bundle. The Judge emphasised the need to preserve the effectiveness of the final hearing listed for March 2025.

[9]The Claimant did not comply with the unless order. As confirmed in correspondence dated 20 February 2025, the Respondent stated that the Claimant had failed to provide the required mitigation documents and had also failed to serve his witness statement by the deadline. Consequently, the evidence subject to the unless order was excluded from the proceedings. The Respondent expressed concern about the Claimant’s continued noncompliance and reserved its position regarding whether the Claimant should be permitted to give evidence at all.

[10]The bundle includes the Respondent's concerns and correspondence, but no subsequent Tribunal decision, direction, or acknowledgment appears to have been issued.

The hearing

[11]We had a bundle of 762 pages.

[12]The Claimant had said in correspondence with the Tribunal up until the morning of the hearing that he would attend the hearing in person. He objected vigorously to the Respondent’s application to postpone the hearing, in part because he said he had travelled from Brazil specifically to attend the hearing.

[13]On the morning of the hearing, he wrote to the Tribunal to say that he would not be attending the hearing in person. He said he was in Spain and could not afford a hotel in London; an offer of accommodation from a friend had fallen through. He asserted that Spain was a country which permitted witnesses to give evidence via video from that country.

[14]There is no general agreement between Spain and the UK for a witness to give evidence in a UK Employment Tribunal by video from Spain. An individual may seek permission to do so, but that involves making an application which must then be considered by the relevant authorities. The Claimant had not gone through that process. All he had done was to make a general enquiry (very late in the day) of the British consulate in Alicante, in response to which he received some general guidance, suggesting that he direct his query to the Foreign Process section in the Royal Courts of Justice.

[15]The Tribunal does not have the power to make an exception based on mitigating personal circumstances, as the Claimant asked us to do. Consequently, the Claimant could not give evidence from Spain.

[16]The Tribunal was surprised that this issue has arisen at the last minute. I had alerted the Claimant to it in August of last year. He could have made the necessary enquiries and application at any point since then.

[17]Counsel for the Respondent (Mr Flood) agreed that Claimant could still participate in the hearing, albeit to a limited extent. He could ask the Tribunal to read his written statement but he could not take an oath swearing to its truthfulness, because that would amount to giving evidence in chief; he could not offer himself for cross-examination because in answering questions he would inevitably be giving evidence; he could ask questions of the Respondent’s witnesses, provided that he did so by way of open questions and did not seek to introduce new evidence; he could draw the Tribunal’s attention to documents; and he could make closing submissions.

[18]The Claimant confirmed that he understood these restrictions and wished to proceed. He wanted the case to go ahead because he did not have the funds to come back to Europe from Brazil.

[19]We read the Claimant’s statement and heard evidence on behalf of the Respondent from: 19.1. Ms Holly Moore (Director; project manager for the Dubai training; involved in travel arrangements, visa discussions, and client liaison); 19.2. Ms Bridget Costello (Director, Global HRBP; involved in the redundancy consultation and visa discussions); 19.3. Mr Piers Fox (Chief Marketing Officer; grievance investigator); and 19.4. Mr Remy Ligeika (Director, Employee Relations, EMEA; chaired the grievance appeal).

[20]We also had a statement from Mr Michael Gorman (Product Manager, Banking Services; the Claimant’s line manager). He was not called to give evidence; the Claimant made no reference to him at any point in his witness statement.

[21]Both parties gave us a short reading list; we read those documents.

[22]On the second day of the hearing, the Claimant made an application to admit an additional document, which was refused for the reasons given orally on the day.

Findings of fact

[23]The following findings of fact are made on the balance of probabilities; they are unanimous.

[24]The Respondent, M Three Corporate Consulting Limited, is a UK-based company that operated as part of the Wiley group until its divestment in May 2024. It specialised in delivering training and development services through its Reskill team, which provided short-term upskilling and longer-term reskilling via instructor-led, customised courses. These services were offered globally; one of its clients was the Emirates Institute of Finance in Dubai (‘EIF’). The Respondent employed instructors to deliver training in areas such as banking services and trade finance, and coordinated client engagement, curriculum development, delivery logistics and post-training support.

[25]The Claimant commenced employment with M Three Corporate Consulting Ltd on 5 December 2022 as a Senior Instructor in the Banking Services division. He was employed to work remotely, although his contract permitted travel within the UK and abroad.

[26]There was a redundancy situation in the company in 2023. The Respondent identified that total revenue was expected to decrease in the fiscal year to 2024 from £140 million to below £90 million. Additionally, candidate headcount had dropped from 150 per month to 30 per month from the previous fiscal year. This led to a redesign called Project Autumn which involved, among other things, selecting roles to be made redundant. The Claimant was on a list of people who were to be made redundant in Project Autumn and was due to be terminated on 31 October 2023.

[27]However, in October 2023, through a lead in the personal network of Mr Archana Jayaraj (Director APAC Talent and Partnerships and Head of India Operations), the Respondent learned about an opportunity to work with an Oman-based reseller to kickstart two training programs for the Emirates Institute of Finance (EIF), one programme for technology and one programme for trade finance.

[28]The trade finance cohort was planned to last five to six weeks. EIF sent the curriculum three weeks before the Respondent needed an instructor on site for the training. The lead-time was exceptionally short.

[29]Ms Moore was responsible for identifying an instructor to teach the trade finance cohort. She looked for someone who would be an appropriate subject matter expert and who was interested and available to travel to Dubai. The Claimant was the only instructor who volunteered to teach the cohort. Ms Moore consulted Mr Gorman. who told her that the Claimant was the right person for the job.

[30]On 24 October 2023, Ms Holly Moore contacted the Claimant via Microsoft Teams to confirm his location and availability.

[31]On 25 October 2023, Ms Becs Roycroft confirmed that the Respondent had won the EIF contract, with the first cohort to commence on 6 November 2023. Mr Gorman was informed that the Claimant would be removed from the redundancy list. Ms Moore began discussions with the Claimant about visa requirements.

[32]The Claimant was very keen to go to Dubai, so keen in fact that he took his wife with him (even though the initial engagement was short). While he was there, they explored the possibility of moving to the country long-term.

[33]On 26 October 2023, the Claimant emailed Ms Moore and Mr Gorman with guidance he had received from the General Directorate of Residency and Foreigners Affairs, Dubai. The email is not relied on as a protected disclosure. Nonetheless the email - and the discussion in the thread which followed it - is important and we summarise it, insofar as it relates to the issue of visa requirements. 33.1. The Claimant stated that the General Directorate had given him full details of the visa requirements. 33.2. The Claimant wrote that ‘the Visa permit application has to be done by the Dubai company, not Wiley as Wiley is not established in the country’ [underlining retained from original]. The Claimant then outlines the steps which EIF had to take. Thus, the Claimant knew from the outset that the Respondent could not arrange a work visa for him; that would have to be done by EIF. 33.3. The Claimant also wrote: ‘I also have Colombian passport that I can enter for 90 days into the country, but can’t work, just tourism.’ Thus, the Claimant knew from the outset that he could not work in Dubai on his passport alone. 33.4. Ms Moore forwarded the Claimant’s email to Mr Jayaraj and Ms Roycroft, asking what they thought. 33.5. Ms Roycroft replied that she had found a company which claimed to be able to organise a visa although she was ‘not sure how legit they are’. 33.6. Mr Jayaraj replied that it ‘looks like a 60-day multiple entry tourist visa is the immediately workable option […] Looks like many trainers doing assignments with EIF come on tourist visas. Given the short timeline, maybe we go with this option for now. In parallel, we can explore necessity for temporary work permits/mission visas for future assignments.’ He then provided a link to apply. 33.7. Ms Roycroft replied asking whether she should ‘get [the Claimant] to go ahead and do this one too?’ 33.8. Mr Jayaraj replied ‘this seems the only option for now. So let’s go with it’. 33.9. Ms Roycroft replied that the Claimant ‘says he is on the Columbian passport with 90 days access allowed so think we just leave it as is’. 33.10. Mr Jayaraj replies: ‘just double confirming I understand right. Alex is going ahead with his visa application for 90 days? Columbian passport still needs visa for UAE, but yes, he can get up to 90 days access with the visa’. He provided another link. 33.11. In the last email in the chain, Ms Roycroft forwarded the entire email chain to the Claimant, copying in Mr Jayaraj and Ms Moore, stating: ‘please see below and confirm?’

[34]The Claimant saw the whole thread; there was no attempt to conceal from him the discussions between managers.

[35]We find that the position was as follows: Ms Roycroft wanted the Claimant to travel to Dubai as a tourist, just using his Colombian passport and nothing else. Mr Jayaraj thought that the Claimant was going to apply for what he described as a ’60-day multiple entry tourist visa’. Neither of them was suggesting that they would to anything to provide him with a work visa. Both left it to the Claimant to make the arrangements.

[36]The Claimant made arrangements for travel and accommodation in Dubai, including contact with Clarity Travel. He requested business class flights, which were refused, but premium economy was approved for him and his wife. There is no evidence that he sought to make any arrangements for a visa.

[37]There was no evidence before us that the Claimant objected to the suggestion that he travel either on his passport on a tourist Visa before he travelled to Dubai. There are many messages between the Claimant and management in the period leading up to his departure about travel, car hire and accommodation; none of them mention work visas or permits. The only step the Claimant took was on 30 October 2023, when he messaged Ms Moore as follows: ‘Excellent news!! and absolutely amazing speed execution and professionalism from you and Becs specially. Can I please have a letter from Wiley, so as to confirm my travel, this helps with immigration. Alexander Mora Bolivar, 17th August 1978, and travelling with my wife, Gabriela De Fatima Leopoldino Bertante 07/05/1989, I am working for work [sic] with Emirates Institute of Finance being sent by Wiley from 3rd November to 9th December 2023. My wife is NOT working just a leisure visa, which with Brazil passport its 90 days confirmed by the CIB VISA team that support. Would it be you that can assist or please if you know, do let me know whom I can speak to for a simple letter like this.’

[38]We note the extremely positive tone of the message, which is inconsistent with any suggestion that the Claimant was uncomfortable with the arrangements the Respondent had suggested. We also note that the Claimant asks for a ‘simple letter.’ We find that it would have been obvious to the Claimant that a letter would have no legal status in Dubai. The fact that he asked for it, however, reveals that he knew that he did not have a work visa or work permit before he travelled; if he had either of those, he would not have bothered asking for a letter.

[39]Ms Moore did not provide the Claimant with this letter for obvious reasons which she explained in oral evidence: if the Claimant was entering into the country on his passport as a tourist, having the letter he requested would merely have alerted UAE to the fact that he was entering the country to work and did not have a work visa.

[40]In light of this evidence, the Tribunal find that the Claimant travelled to Dubai as a tourist on his Colombian passport. We accept Ms Moore’s evidence that he had agreed to proceed on this basis. He did so in the full knowledge that he did not have any additional document, granting him permission to work in the UAE (either a visa or a permit) and that the Respondent had taken no steps to arrange one for him.

[41]We find that because of the pressure of time (just under two weeks from the confirmation of the contract to the Claimant’s flight to Dubai), because the Respondent was keen to get the contract and because the Claimant was keen to work in Dubai, everybody, including the Claimant, agreed to cut corners. This, despite the fact that allowing the Claimant to travel on a simple passport as a tourist was in breach of the Respondent’s own travel policy (para 2.1.3), which prohibited travelling abroad for work on a tourist visa.

[42]The Claimant arrived in Dubai on 3 November 2023; at that stage he was scheduled to depart Dubai on 19 December 2023.

[43]On 6 November 2023, the Claimant began delivering the first cohort of training, which was due to be completed on 8 December 2023. Thus, within three days of arrival, he was working without any kind of visa or permit.

[44]We had in the bundle dozens of messages between the Claimant and Ms Moore from around this time; none of them show him chasing visas; none of them show him expressing anger or concern or suggesting (as he wrote in his written statement) that he accused the Respondent of lying to him about visas.

[45]On the contrary, the tone of the messages remains positive and grateful, for example on 20 November 2023, when Ms Moore apologises for a delay in sorting out his expenses, he replies: ‘no worries you have been working super hard on a million things, I totally understand’

[46]Later the same day, the Claimant wrote to Ms Moore: ‘Would be good to be based here Holly, then I can already be on the ground to take on the other Pathways via Wiley, the project is 5 years, we need to have a presence on the ground, and then wouldn't have the travel expenses and would be readily available for any short term cohorts... If we are close, we can take the business, and its BIG As part of the negotiations you can say like this...... Wiley is sending an Ex European Central Bank Senior Project Director.... together with Wiley we can develop the 5 year plan, and more... including writing material, etc.. we can really take up more Pathways I leave that with you as the main negotiator’

[47]This message is quite at odds with the Claimant’s written evidence in his statement that he was in a state of panic, fear and anger about his status in Dubai; in this message he is saying precisely the opposite, that ‘it would be good to be based here’. It is also inconsistent with the passage in his witness statement in which claimed to be concerned about travelling to Dubai as a Christian in a Muslim country.

[48]Towards the end of November 2023, the EIF engaged the Respondent to deliver a second cohort of training between 12 and 25 December 2024. Ms Moore asked the Claimant whether he would be agreeable to extending his stay and returning to the UK between Christmas and New Year. He was happy to do; he immediately asked that his return flight be changed.

[49]On 28 November 2023, the Claimant wrote to Ms Moore: ‘You really deserve the credit for so much effort, and amazing support!!’ The visit to the Amer Centre

[50]On a date in late November, and certainly before 1 December 2023, the Claimant attended the Amer centre in Dubai, an expert immigration service provider, working in collaboration with the General Directorate of Residency and Foreigners Affairs.

[51]The timing of this visit clearly related to the Respondent being asked to deliver a second cohort of training, which it wanted the Claimant to deliver. We think it likely that the Claimant made his visit to the Amer Centre with the full knowledge of the Respondent and with the shared purpose that he would make enquiries as to how his visa situation could be regularised so that he could continue to work for the Respondent in Dubai, certainly for the duration of the second cohort, and possibly in the longer term.

[52]The Claimant, in his written witness statement, gives a very different account. He states that when he went to the centre, he asked what he described as ‘generic questions’ about ‘UAE labour laws and the requirements to be able to work in UAE with the British and Colombian passport’. We understand from this that he did not disclose to the centre the fact that he personally had been working in Dubai without a work visa.

[53]His statement continues as follows: ‘At this point, when the AHMER immigration staff began answering my questions, I really began to panic inside because I was finding out that the probability that M three had lied to me and sent me to work illegally was becoming more real. My Suspicions that I had been sent to work illegally raised when I made a call to Management, and expressed in harsh tone that I had attended the AHMER centre and that I believed that M Three had lied to me, I said to management you sent me here to work without a visa, didn’t you, without a work permit´. After a heated discussion with management on Teams app, Holly Moore began to speak differently. The previous FULL CERTAINTY given to me prior leaving the UK, turned into a VERY DOUBTFUL confirmation that all was ok, because this is when Holly Moore asked me to go back to the AHMER centre and get further clarification on the requirements.’

[54]We will comment further on the content of that passage in our conclusions.

[55]It is not disputed that the Amer centre put the Claimant in touch with Ms Zarina Shaikh at a company called Vacationae.

[56]On 1 December 2023, the Claimant forwarded an email from Ms Shaikh of Vacationae regarding visa options. His covering email [341] reads as follows: Hi Holly, Please see attached; 1. Options available with two of the lowest quotes 2. Requirements docs AMER approved company referred to directly by AMER when I visited the immigration office. Regards, Alex

[57]There is no hint of negativity towards the Respondent in this email.

[58]Attached to the email was a document from Ms Shaikh setting out five options, the fourth of which was a ‘Gold Visa – 10 years (Approved Amer company) at a total cost of 21,150 Dirham’.

[59]Ms Moore, who was unwell, asked Ms Bridget Costello to review it. On the same day, 1 December 2023, Ms Costello sent the following email to Ms Moore: ‘Hi Holly I have had a long conversation with Alex and even had Zarina join the call to explain the process. The company is linked to the government, which is a great to see, we can start the process with the visa but due to national holidays this will be Tuesday, Alex is taking his passport to her as we speak as she needs to verify, she has seen the original (standard). We are going with option 4 We will need to make payment on Tuesday I would assume as you said by Bec`s card.’

[60]We note that option 4 was the second most expensive option.

[61]On 7 December 2023, payment in the amount of around $4500 was made to commence the gold visa process.

[62]Also on 7 December 2023, Ms Moore confirmed to the Claimant that additional cohorts were expected in January and February 2024, and the Claimant responded enthusiastically.

[63]In a message dated 11 December 2023, the Claimant informed Ms Moore that he had been covered for immigration purposes as soon as the application for the Gold Visa was submitted.

[64]On 19 December 2023, in response to an email from Ms Moore telling him that he was not scheduled to do the January cohorts, the Claimant, urging her to assign him to the January cohorts: ‘Hi Holly, I know you are super busy... not sure who is deciding for the cohorts, but please consider I already have VISA docs with immigration, and can work The first cohort was a "trial” and this is permitted... but the others are actually work... I am best placed with visa to be able to work the 15th Jan Cohorts unless of course the person has a local Emirates ID< if they dont, cant send them on tourist visa, could cause problems for them, and Wiley, here its very strict’

[65]We note the Claimant’s statement: ‘the first cohort was a ‘trial’ and this is permitted… But the others are actually work’. We will return to this in our conclusions. The law Protected disclosures

The law

[66]The term ‘qualifying disclosure’ refers to the type of information that must be disclosed. It is defined by section 43B, as follows: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— […] (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, […] (d) that the health or safety of any individual has been, is being or is likely to be endangered […] (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.

[67]A qualifying disclosure becomes a ‘protected disclosure’ if it is made by a worker in accordance with any of sections 43C to 43H, which identify the persons to whom a disclosure may be made. In this case, it is not in dispute that the disclosures were made to the employer in accordance with s.43C.

[68]In Williams v Michelle Brown AM,

UKEAT/0044/19/OO

at [9], HHJ Auerbach identified five issues, which a Tribunal is required to decide in relation to whether something amounts to a qualifying disclosure: ‘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.’ What was the disclosure of information?

[69]As for what might constitute a disclosure of information for the purposes of s.43B ERA, in Kilraine v London Borough of Wandsworth

[2018] ICR 1850

CA, Sales LJ provided the following guidance: ‘30. the concept of "information" as used in section 43B(1) is capable of covering statements which might also be characterised as allegations. Langstaff J made the same point in the Judgment below at [30], set out above, and I would respectfully endorse what he says there. Section 43B(1) should not be glossed to introduce into it a rigid dichotomy between “information” on the one hand and “allegations” on the other […] 31. On the other hand, although sometimes a statement which can be characterised as an allegation will also constitute "information" and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation will do so. Whether a particular allegation amounts to a qualifying disclosure under section 43B(1) will depend on whether it falls within the language used in that provision. […]35. In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). […]

36. 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.’

[70]The burden is on the Claimant to prove each of the elements necessary for a qualifying disclosure under s.43B ERA. In s.43B(1)(b) ERA, ‘likely’ requires more than a possibility or risk that the employer (or other person) might fail to comply with a relevant obligation. The information disclosed should, in the reasonable belief of the worker at the time it is disclosed, tend to show that it is probable, or more probable than not that the employer (or other person) will fail to comply with the relevant legal obligation. If the claimant's belief is limited to the possibility or risk of a breach of relevant legislation, this would not meet the statutory test of likely to fail to comply (Kraus v Penna plc

[2004] IRLR 260

at [24].

[71]Where a disclosure is vague and lacks specificity, it will not provide sufficient information: Leclerc v Amtac Certification Ltd

UKEAT/0244/19

at [26-31].

[72]Where the link to the subject matter of any of ERA s.43B(1) is not stated or referred to, or is not obvious, a Tribunal may regard this as evidence pointing to the conclusion that the information is not specific enough to be capable of qualifying as a protected disclosure (Twist DX Ltd v Armes

UKEAT/0030/20

at [86] and [87]). Did the worker believe that the disclosure tended to show one or more of the matters listed in sub-paragraphs (a) to (f)? If he did hold that belief, it must be reasonably held.

[73]Whether the Claimant held the belief that the disclosed information tended to show one or more of the matters specified in s.43B(1)(a)-(f) (‘the specified matters’) and, if so, which of those matters, is a subjective question to be decided on the evidence as to the Claimant's beliefs (Twist at [64]). Disclosure in the public interest

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

[2018] ICR 731

. The Tribunal must ask: did the worker believe, at the time he was making it, that the making of the disclosure was in the public interest (at [27])? That is the subjective element. There is then an objective element: was that belief reasonable? That exercise requires that the Tribunal recognise that there may be more than one reasonable view as to whether a particular disclosure was in the public interest (at [28]). Public interest’ involves a distinction between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest (at [31]). Findings and conclusions: the alleged qualifying disclosures PD 1 - ‘During the Claimant’s stay in Dubai in approximately mid-December 2023 disclosed his line manager, Mr Michael Gorman and the project manager, Ms Holly Moore that he did not have evidence of a visa, after having chased the project managers. The Claimant believed this disclosed a breach of UAE labour laws (ET1, page 2 of POCs ‘When I arrived in Dubai…’

[75]Page 2 of the particulars of claim reads as follows in full: ‘When I arrived in Dubai, I raised the issue of Employment permit and Visa again, because after having insisted on Teams app with management to have something officially sent to me by e-mail regarding visa and permits, I had not been given anything. By this time, I had already started working on the First contract (called cohorts).’

[76]That text is then transposed word for word into the Claimant’s witness statement at paragraph 3. The Claimant confirmed when cross-examining Ms Moore that this was the evidence that he relied on for the purposes of this protected disclosure.

[77]There are two immediate problems with this: firstly, the Claimant has given two different dates for the alleged disclosure (or possibly disclosures, given that he names two recipients); secondly, he has never set out in terms whether the disclosures were made orally or in writing, and if so by what means of communication.

[78]The Claimant makes no reference to making a disclosure to Mr Gorman in his witness statement; consequently, there is no evidence on the basis of which we could make a finding of fact that he did so; that part of the alleged disclosure must fail.

[79]Considering the position in relation to Ms Moore, we accept Mr Flood’s submission that the only information disclosed, according to the Claimant’s statement, was that he had previously requested to have something officially sent to him regarding visa and permits, and to date had received nothing. While this is information, it is not information, without more, that tended to show any of the matters set out in Section 43B ERA. Had the Claimant alleged that he had gone on to say words to the effect of, ‘and therefore I/you are breaking UAE/Dubai law by requiring/allowing me to work here’ then the position might be different. But that was not the Claimant’s evidence. Although the Claimant now says that he ‘believed this disclosed a breach of UAE labour laws’, in the two paragraphs in the witness statement which follow the paragraph quoted above, the Claimant does not state that he said that at the time.

[80]On the contrary, in the message he sent to Ms Moore on 20 December 2023, he wrote: ‘the first cohort was a ‘trial’ and this is permitted… But the others are actually work’. That suggests that the Claimant did not believe, even by late December 2023, that he had breached UAE labour laws while delivering the first cohort. Absent that subjective, it is inherently unlikely that he said the opposite to the Respondent, as he now alleges.

[81]As for the date of the alleged disclosure, in the version in the list of issues, the Claimant says that the disclosure was made in mid-December 2023. That cannot be right because by mid-December, the Respondent had already paid for the Gold Visa referred to above and, in his message of 11 December 2023 (para 63 above), the Claimant had informed Ms Moore that he was covered for immigration purposes as soon as the application for the visa had been submitted.

[82]In the pleaded version the Claimant dates the disclosure to a time shortly after he had arrived, but after he had already started working on the first cohort, i.e. after 6 November 2023. No specific date is given. The Claimant asked Ms Moore if she agreed that he had made this disclosure to her then; she asked ‘in what format?’. The Claimant then took her to a passage in the Respondent’s grounds of resistance at paragraph 38, which reads as follows: ‘On 20 December 2023, the Claimant sent Holly Moore a message stating 'not sure who is deciding for the cohorts, but please consider I already have VISA docs with immigration, and can work .’

[83]That message cannot be the alleged protected disclosure, not only because of the date, but also because it says the exact opposite of his alleged disclosure: that he has a visa, rather than that he had asked for one but had received nothing.

[84]The Claimant then suggested that he made the disclosure referred to above in a phone call to Ms Moore from the Amer Centre. Ms Moore denied that he did so. The only evidence relied on by the Claimant is one of the chat messages, where there was a reference (unexplained) to the Amer Centre. We accept the Respondent’s account that that document does not show a call taking place, merely the option to instigate a call by pressing a particular button within the app.

[85]Taking all this together, we have concluded that the Claimant never made the first alleged protected disclosure. PD 3: ‘Shortly after this, the Claimant disclosed to Ms Moore by phone call, Teams chat and email, that the immigration officer in Dubai had confirmed that there had been a breach of UAE labour laws (POCs, page 3: ‘After the meeting with the immigration officer…’)

[86]The full text of that passage in the particulars of claim is as follows: ‘After the meeting with immigration officer at the AHMER offices, I spoke to Holly Moore and said that I needed to URGENTLY submit documents to UAE immigration as I had breached UAE labour laws. Holly Moore denied that I had breached any labour laws, and simply replied to me that everything had been organised but ‘In order to reassure ourselves’, (referring to M three), the company would pay for my Visa and employment permit application for the second contract. M three decided to pay for an application after I escalated the issue to Becs Roycroft and finally gained approval.’

[87]The same difficulty arises in relation to this disclosure: the Claimant has never identified the specific dates on which these phone calls, teams chat or emails are said to have occurred. Nor has any contemporaneous evidence been produced to prove that they occurred. Consequently, there is no record of the precise information which is said to have been disclosed. It would be difficult for any Tribunal to find that a disclosure had been made without that basic information.

[88]There is then a fundamental problem of plausibility with the Claimant’s account: he is asking the Tribunal to believe that it was only when he went to the Amer centre that he discovered (apparently, to his horror) that there might be a problem with his working in Dubai without a work visa. Yet he also reminded us repeatedly that he had done his own research before he left the UK and told the Respondent in his email of 26 October 2023 that he could not work in the UAE with only his Colombian passport and no visa.

[89]We have already found that the Claimant knew the Respondent was not going to organise a work visa for him; he had not organised a work visa for himself; he simply entered the country on his passport.

[90]There is then the fact that, according to the Claimant’s email of 20 December 2023 he did not in fact believe that he or the Respondent had breached UAE labour laws by working on the first cohort because it was only a ‘trial’ and this was ‘permitted’.

[91]So, if the Claimant was right to say in his original email of 26 October 2023, that he needed a visa to deliver the first cohort, he knew all along that he did not have one and that the Respondent was not going to provide one. His account of being shocked to discover at the beginning of December that a breach had occurred lacks any credibility. Alternatively, if he was being truthful in his message of 20 December 2023 (several weeks after he went to the Amer centre) when he said that he had not needed a visa to deliver the first cohort because it was only a trial, that is irreconcilable with him disclosing to the Respondent at the beginning of December that there had been a breach of UAE law.

[92]Insofar as the Claimant relayed any information to the Respondent, the only reliable evidence we have is the email he sent to Ms Moore on 1 December 2023 attaching the information Ms Shaikh had provided him with. It does not contain information which tends to show that there had been a breach of a legal obligation. It contains information about the options for obtaining a work visa for future work.

[93]We are satisfied that the situation is far simpler than the convoluted and strained account which the Claimant set out in his written statement. When he and the Respondent learnt that there was to be a second cohort, it was agreed that he would make enquiries on the ground to find out how to obtain a work visa. He went to the Amer centre and made some generalised enquiries; they put him in touch with Ms Sheikh; she set out the options available to him; he forwarded the options to the Respondent and, after some discussion, it was jointly agreed that an application would be made for gold visa, for which the Respondent would pay. There is no contemporaneous evidence that these transactions were anything other than entirely amicable.

[94]If we are wrong about that, and the Claimant (on an unspecified date, by an unspecified mode of communication) said words to the effect of: ‘I have been informed by the Amer centre that I have already breached UAE labour law by working on the first cohort without a work visa’, we would have unanimously concluded that he did not disclose that information in the public interest, but rather entirely in his own private interest: to ensure that he could continue to work in the UAE, which he was extremely keen to do.

[95]Insofar as his witness statement contains evidence that he was acting in the interests of his colleague, Mr Pranav Shastri, who had also been sent to the UAE, we give that evidence no weight. We regard it as self-serving, directed solely at satisfying the public interest limb of the test for the existence of a qualifying disclosure. PD 4: ‘The Claimant disclosed, by phone call and email, to Mr Albert Farrant of Inspirit (the company arranging purchase of Wiley, the original parent company of the Respondent) that the Respondent was sending staff to work illegally in UAE and that this must be investigated (added by amendment)’

[96]There was no reference in the Claimant’s witness statement to this alleged disclosure. The Claimant has not discharged the burden on him to prove that he made a protected disclosure in the terms alleged.

Conclusion

[97]Because we have concluded that the Claimant did not make a qualifying disclosure, his claim of automatically unfair dismissal must fail; it is dismissed. Final observations

[98]We end this judgment by recording that we have concluded that neither party has been entirely frank with us during this hearing. We consider that the Respondent’s witnesses have been selective, and somewhat evasive, in their accounts of these events, we infer because of the potential for professional embarrassment.

[99]As for the Claimant, we have concluded that his account is, in some important respects, untruthful and self-serving. Moreover, we find his account of the consequences of these events for his life after the end of his employment to be greatly exaggerated. His suggestion that he has been obliged to flee to Brazil to avoid ‘a warrant for his arrest’ by the UAE is, in our judgment, completely implausible. All the contemporaneous evidence showed that the Claimant did everything he could to persuade the Respondent to allow him to remain in the UAE, even after he says he discovered the alleged breach. We consider that there is no realistic possibility whatsoever that the UAE, or indeed any country, would go down the lengthy and complex route of extradition to pursue what, on a worst case scenario, might have been a minor and transient breach of immigration rules.