Mr I Hashmi v HSBC Group Management Services Ltd: 3207297/2021

EMPLOYMENT TRIBUNALS

Case No 3207297/2021

Between

Mr I HashmiClaimant

HSBC Group Management Services LtdRespondent

Before

Employment Judge Gardiner

In person for claimant

Ms Diya Sen Gupta QC for respondent

Date 4 June 2024

JUDGMENT

The judgment of the Tribunal is that:- The Claimant’s application for interim relief under Section 128 Employment Rights Act 1996 is refused.

REASONS

[1]Until his dismissal on 8 October 2021, the Claimant was employed by the Respondent as a Risk 2025 Project Manager. In these proceedings he claims his dismissal was an automatically unfair dismissal for making protected disclosures. He also claims he has suffered age, race and disability discrimination, although these discrimination claims are not relevant to the issue to be determined at this hearing.

[2]The basis of the Claimant’s claim is set out in the two-page document attached to his Claim Form. This identifies him as a whistleblower, who “has been internally speaking up since early this year regarding major regulatory compliance issues with the credit risk policies, credit risk data, credit systems architecture and transformation initiatives”. Later, in paragraph 5 of his Claim Form he refers to “the bank’s continuing non-compliance with regulatory guidelines”. He says at paragraph 7 that he raised these matters with Jackson Tai, the Independent Director on the Respondent’s Board, on 4 October 2021. He then refers to an unexpected call from his line manager, Simon Penny on 8 October 2021 in which he was told that he was being dismissed. Case Number: 3207297/2021 2

[3]At this hearing the Claimant is seeking interim relief under Section 128 Employment Rights Act 1996. If the criteria set out in that Section are met, this entitles a claimant to keep their job pending a final decision on the merits of the Claimant’s claim at a subsequent hearing.

[4]The Claimant instigated Early Conciliation on 2 November 2021 and received his Early Conciliation Certificate on 25 November 2021. On 20 November 2021 he issued these proceedings. Due to staff shortages at the Tribunal Service, there was a delay in acknowledging the claim and notifying the Respondent of the proceedings. That was done by post and email on 16 December 2021. On the same day, the parties were notified that there would be a one-day hearing held on 10 January 2022 to consider the Claimant’s application for interim relief.

[5]At this hearing, the Claimant has represented himself. The Respondent has been represented by Ms Diya Sen Gupta QC. I have been provided with an electronic bundle of documents and a witness statement from Mr Andrew Grisdale. A Skeleton Argument was submitted on behalf of the Respondent, as well as a Cast List and a bundle of relevant authorities.

[6]The test I have to apply is whether it appears to the Tribunal that it is likely that the Tribunal will find that the reason the Claimant was dismissed or selected for redundancy was that he had made a protected disclosure (Section 129 ERA 1996). This requires the Tribunal to carry out an expeditious summary assessment as to how the matter appears on the material available, doing the best it can with the untested evidence advanced by each party. This necessarily involves a far less detailed scrutiny of the parties’ cases than will ultimately be undertaken at the full hearing. When considering the likelihood of success at the Final Hearing, the correct test to be applied is whether he or she has a ‘pretty good chance of success’ at the Final Hearing – Taplin v C Shippam Limited

[1978] ICR 1068

. This is a higher hurdle than the hurdle that applies at the Final Hearing, which is to decide the case on the balance of probabilities.

[7]Where, as here, the complaint is of automatically unfair dismissal for making a protected disclosures or automatically unfair selection for redundancy for the same reason, the Tribunal at the Final Hearing will need to decide the following issues:a. Were there protected disclosures?

b. Were the protected disclosures the principal reason for the dismissal? Protected disclosure

[8]A protected disclosure is a qualifying disclosure made to the employer. A qualifying disclosure is a disclosure of information which in the reasonable belief of the claimant tends to show wrongdoing in a prescribed respect and which is reasonably believed by the claimant to be in the public interest. Ms Gupta has set out the legal Case Number: 3207297/2021 3 principles which apply in deciding whether an alleged disclosure falls with the terms of the statutory provision.

[9]The Claim Form does not identify the particular protected disclosures on which the Claimant relies in support of his claim for automatically unfair dismissal. In argument during the course of this hearing, I asked the Claimant to identify the particular documents on which he was relying either as protected disclosures or as evidence of disclosures made verbally. I now deal with each of the alleged disclosures, evaluating whether the Claimant has a pretty good chance of showing that they were protected disclosures:a. An email of 14.7.21 at pages 134 to 135 of the bundle: I do not consider that the Claimant has a pretty good chance of showing that this was a protected disclosure. No legal obligation is identified within the email nor is there any information disclosed that tends to show breach of PRA Guidelines. The focus of the email is the Claimant setting out his views as to how credit risk, data systems and portfolio management are organised. He suggests that there needs to be the ability to aggregate credit data and have an overriding credit flow architecture. He does not include any information that points to breaches of Guidelines if the current system is maintained. The conclusion of the email, set out in bold, is a request for “an opportunity of collective brainstorming on the way forward”.

b. A slide deck dated 15.7.19 [139]. This does not disclosure information with sufficient specificity such that it tends to show breach of a legal obligation. Rather it suggests the Claimant has ideas as to how things might be done differently going forwards. The words “Doing things differently” appear on page 140. Mr Hashmi relies on the criticisms made on page 141. The impression given by these comments is that there are weaknesses in the current structure. The comments are general and contain little factual specificity. There is nothing in this document to suggest the factual basis on which the Claimant believes PRA Guidelines are not being followed or may not be followed in the future. Rather, on pages 142 and 143 the Claimant identifies solutions to the problems he has identified.

c. The email of 16 July 2021 opens by thanking Mr Grisdale for “this opportunity for an open discussion around core challenges and proposed solutions” [150]. It does not appear to disclose any information tending to show a breach of a legal obligation. There is a passing reference to BIS in the first numbered point, but this is only in the context of revising market best practice.

d. The email of 21 July 2021 [152] says he was not offered a brainstorming opportunity. It asks for support to “help us rethink and propose concrete solutions for all three of the proposed next steps”. It does not appear to disclose information tending to show a breach of a legal obligation; Case Number: 3207297/2021 4

e. On 2 August 2021 he emailed to say that he would be working to provide the management with prescriptive details on his proposed next steps. He referred to regulatory guidance but did not indicate any specific respects in which he considered that regulations were being breached [153];

f. An email of 2 August 2021, the same date, asked for a couple of individuals to help with providing senior management with prescriptive details on his proposed next steps – these were identified as regulatory guidance but no specific information was provided as to how this was believed to be being breached [156];

g. The deck of slides on 7 September 2021 was discussed during the hearing – the Claimant was not able to identify any specific respects stated within the slides in which there were breaches of a legal obligation;

h. The final document identified which predates notification of the dismissal decision is an email to Mr Lewis and Mr Ford which makes a series of observations, including that there is poor quality data at source. There is nothing here to indicate that there was reasonably believed to be a breach of a legal obligation;

i. The Claimant was vague as to what was communicated to Mr Tai on 4 October 2021 during the 45-minute meeting. There is insufficient evidence for me to conclude that there is a ‘pretty good chance of successfully’ showing that it contained verbal protected disclosures.

[10]My summary assessment based on the documents in the bundle and the discussion in the course of argument is that the Claimant is unlikely to be able to show that he has made a protected disclosure.

[11]Even if this legal hurdle is surmounted, I do not consider that the Claimant has a pretty good chance of establishing that any protected disclosure was the reason for the Claimant’s dismissal. I have not been provided with a witness statement from the dismissing officer, Mr Penny, who is apparently unwell and so away from work. However, the contemporaneous documents in the bundle show a well-documented pattern of concerns being raised about the Claimant’s conduct and performance. The Claimant’s role was a temporary one which was due to come to an end at the end of December 2021 in any event. On the papers I have seen, the most likely explanation for the Claimant’s dismissal is that this fixed term contract was coming to an end in circumstances where there were concerns about the Claimant’s conduct and performance and where there were, on the Respondent’s evidence, budgetary restrictions which meant that only two of the three temporary roles could be retained. The Claimant’s role was paid at a higher level. Removing his role created a larger financial saving. Case Number: 3207297/2021 5

[12]In these circumstances, I dismiss the application for interim relief. This is not a case where I am persuaded that the Claimant has a pretty good chance of succeeding in his automatically unfair dismissal claim at the Final Hearing. Employment Judge Gardiner Dated: 23 March 2022 Case Number: 3207297/2021 1 of 26 EMPLOYMENT TRIBUNALS Claimant: Mr Irfan HashmiRespondent: HSBC Group Management Services LimitedRECONSIDERATION JUDGMENT1. The judgment of the Tribunal that :The Respondent’s applications to strike out the Claimant’s claims for unfair dismissal(whether advanced under Section 103A, 105 or Section 98(4) of the Employment Rights Act 1996) and its applications to strike out the Claimant’s claims of directdiscrimination brought under the Equality Act 2010 are dismissed. is confirmed upon reconsideration. REASONS1. On 6 April 2023 I heard an application for orders striking out the Claimant’s claimsmade by the Respondent. I refused those applications although I did make some deposit orders. I gave written reasons for my decisions. My decisions recording that I refused the Respondent’s applications ought to have been included in ajudgment rather than a case management order. I have dealt with that by reproducing the order I made above, and I have set out the reasons I gave for that conclusion as an annex to this judgment in order that both can be published as required.2. By an e-mail sent at 11:23 on 10 October 2023 the Respondent sought a reconsideration of my judgment refusing the Respondent’s application to strike outthe Claimant’s claims of unfair dismissal (brought pursuant to Sections 94 and103A of the Employment Rights Act and his claims of direct discrimination relying on the protected characteristics race and age.3. The basis of the Respondent’s application was that in giving my reasons for mydecisions I had referred exclusively to a skeleton argument prepared by Ms Diya Sen Gupta KC for an earlier hearing and had made no reference to the skeleton argument prepared by Mr Jammie Susskind who had appeared before me.4. On 11 October 2023 I asked for a letter to be sent to the parties in which I indicated that the Respondents had correctly identified that I had not dealt with the skeleton Case Number: 3207297/2021 2 of 26 argument of Mr Susskind. I agreed that in the light of that I would need to reconsider my judgment in respect of my refusal to strike out the claims. 5. For the avoidance of any doubt my letter of 11 October 2023 was intended as notification to the parties that I considered that the Respondent’s application should not be said to have no reasonable prospects of success for the purposes of rule 72(1) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (hereafter references to rules are references to the rules set out in schedule 1 of the regulations). 6. In its application the Respondent asked for the matter to be dealt with without a hearing. I was unfortunately on leave when on 11 October 2023 the Claimant sent an e-mail asking for an indication of when he needed to make his written submissions. In the event the Claimant sent in written submissions by e-mail on 19 October 2023. Mr Hashmi opposed the Respondent’s application but went on to ask that I set aside the deposit orders that I made. I shall not deal with the application to set aside the deposit orders I have made in this document as deposit orders are not a ‘judgment’ and a different process exists for revisiting such orders. I shall deal with that and the other matters Mr Hashmi raises in a separate case management order. A hearing 7. The first matter I shall deal with is the question of whether I should list a hearing to deal with the Respondent’s application. Rule 72(1) requires there to be a hearing unless I consider that a further hearing is unnecessary in the interests of justice. It follows that having a hearing is the default position. It is the Respondent that challenges my decision. The Respondent does not seek a hearing. I infer that the Respondent has nothing to add to its written application which in turn asks me to have proper regard to Mr Susskind’s skeleton argument. 8. If I was not persuaded by the arguments made in writing in support of orders striking out the claims contained in Mr Susskind’s skeleton argument then Mr Hashmi would not suffer any prejudice by there not being a further hearing. That would simply cause unnecessary work and costs. As my ultimate conclusion is that the Respondent’s application falls to be refused there is no need for a hearing to deal with that application. It is not necessary in the interests of justice to have a hearing. Reconsideration – the interests of justice test 9. Rule 70 provides that a tribunal may only reconsider a judgment when it is ‘necessary in the interests of justice’ to do so. The Respondent’s application essentially says that in reaching a conclusion on its application I have overlooked a skeleton argument and that has caused me to assume that a concession was made in respect of whether the Claimant made protected disclosures where no such concession was made (and contrary arguments advanced). 10. The expression necessary in the interests of justice is plainly sufficiently wide to encompass procedural errors by a tribunal. Case Number: 3207297/2021 3 of 26 11. In my letter to the parties sent on 11 October 2023 I acknowledged that I failed to deal with arguments raised by Mr Susskind. I owe the parties both an apology and an explanation. As is my practice I made notes during the hearing of the main submissions made by both parties. If I recall the oral submissions made by Mr Susskind in respect of the protected disclosures he stated that the disclosures were in writing and that I was therefore in a good position to judge whether they amounted to qualifying disclosures for the purposes of Section 43B of the Employment Rights Act 1996. I made only a brief note of this (which I think reflected either a remark I made, or Mr Susskind made) recording that the Tribunal was in a position to decide for itself. 12. At the conclusion of the hearing I read through the pages of the bundle where it is said that the Claimant made protected disclosures. At that time I had the parties’ submissions ringing in my ears. I made a decision but, at that point, simply recorded what I had intended to do without setting out any further reasons for myself.

[13]As the parties know it took me some time to prepare my reasons. I had several lengthy judgments to complete and a great deal of other work. I wrote up the reasons over a number of evenings and weekends. I completed the final draft having forgotten that Mr Susskind had prepared two skeleton arguments. I did have both and had read both but simply forgot that I had done so. When I read my notes I took the lack of detailed oral submissions about protected disclosures as a tacit concession. In fact it was nothing of the sort.

[14]I have no hesitation in accepting that the error I have made amounts to a serious procedural error and that it is in the interests of justice for me to revisit the reasons that I have given and to assess whether the points in the submissions that I overlooked in my reasons mean that I ought to have come to a different conclusion. My decision on reconsideration.

[15]I do not think that my self-direction on the law to be applied when considering the test that needs to be applied on an application to strike out claims overlooked anything said by Mr Susskind. Between paragraphs 52 and 59 of my reasons I set out the relevant test and in my view I do not suggest that there proper approach is any different than Mr Susskind does at paragraphs 22 to 25 of his skeleton argument. The issue is whether I have correctly applied those principles.

[16]I shall deal firstly with the unfair dismissal claim. The Claimant brings a claim (in part) relying on the automatically unfair reason for dismissal set out in Section 103A of the Employment Rights Act 1996. It is therefore necessary for him to show that he has made protected disclosures.

[17]The submissions that I overlooked when writing up my reasons are set out at paragraphs 28 through to 58 of Mr Susskind’s skeleton argument. That is not of course to say that I failed to consider whether the Claimant could be said to have no reasonable prospects of showing that he made protected disclosures. I did that between paragraphs 70 and 78 of my reasons although by reference to the arguments made in writing by Diya Sen Gupta KC. I need to revisit that decision Case Number: 3207297/2021 4 of 26 having full regard to the manner in which Mr Susskind puts the Respondent’s case.

[18]Before turning to the Respondent’s detailed points I step back and have regard to the oral submissions made by Mr Hashmi. He did not descend into the forensic detail that Mr Susskind does, but his broad points are worth repeating. The first point, which is accepted in Andrew Grisdale’s witness statement, is that the Claimant was first engaged as Head of Financial Risk Management. His role is described at paragraph 4.2 of the ET3. The Claimant was made redundant from that role but continued to work within the same field of expertise. What is clear is that the Claimant was employed to manage ‘risk’. The risk is primarily a risk to investments but as is clear both from the Claimant’s submissions and from the witness statement of Andrew Grisdale the sector is highly regulated. In order to stay within regulatory requirements the Respondent needs to regulate risk.

[19]The Claimant explained that his concerns surrounded the management of data. He advocated for a system where the data across the business was visible on a single system. He says that without such visibility there can be no proper assessment of the level of exposure. He says that that leads to the possibility of the Respondent being undercapitalised. He referred to the Respondent as being a ’house of cards’.

[20]The Respondent disagrees. It says that whilst a single data platform has been tried by other institutions it is not effective. The Respondent is confident in its systems.

[21]As I will come to the question for the Tribunal is not going to be whether the Claimant is right in what he says. The statutory test focuses on whether he had a reasonable belief that what he told the Respondent tended to show that a breach of a legal obligation had, was or was likely to occur.

[22]When I am assessing whether the Claimant had a reasonable belief I need to take into account all the surrounding circumstances. I consider that these include the fact that the Claimant’s initial role, and even thereafter his principal interest (to the exclusion of the work he was ment to be doing) was in risk management.

[23]I accept the point made by Mr Susskind relying on Carr v Bloomberg

[2022] UKEAT 49

that, in contract with the subjective elements of a qualifying disclosure or the subjective reasons for a decision at tribunal might be better placed to make a decision about the objective elements, the reasonableness of a belief, on an application to strike out. As Heather Williams J said whether that is the case will depend on the particular context.

[24]Mr Susskind relies on Twist DX Ltd and ors v Armes and anor EAT 0030/20 and rightly says that a failure to identify a particular type of wrongdoing within a protected disclosure might provide evidence of what was or was not in the worker’s mind at the time of the disclosure.

[25]At paragraph 36.1 Mr Susskind relies on Blackbay Ventures Ltd T/A Chemistree v Gahir

UKEAT/0449/12/JOJ

and says that any legal obligation should be identified and ‘capable of verification’. I would not disagree that the worker must Case Number: 3207297/2021 5 of 26 be required to say what legal obligation they had in their mind. As such the obligation must be identified. However what is said in Blackbay needs to be seen in the light of Babula v Waltham Forest College

[2007] EWCA Civ 174

. There does not actually need to be any legal obligation. All that is necessary is that the belief that that obligation exists is reasonable. Mr Susskind implicitly recognises that at paragraph 36.2.

[26]In Riley v Belmont Green Finance Ltd

UKEAT/0133/19

the EAT upheld the decision of the Tribunal that the Claimant had not made a protected disclosure when he referred to breached of FCA requirements. It is clear from Babula if the Claimant actually believed that the FCA requirements had the force of law the fact that he was wrong would not mean that he had not made a qualifying disclosure. The question would be whether his belief was reasonable. In my view much would turn on the nature of the regulatory requirement and the nature of the alleged breach. I do not think this case sets out any general rule that a belief that regulatory requirements never have the force of law, if wrong, can never be reasonable or satisfy all elements of the test in Section 43B.

[27]I do not think I need comment upon Mr Susskind’s commentary on the law insofar as it refers to the public interest. I had directed myself in accordance with Chesterton Global Ltd as Mr Susskind invites me to do in my skeleton.

[28]I turn then to the individual protected disclosures. I have read all the documents that either contain or are said to summarise what the Claimant has said. The core of what the Claimant was saying remains constant and to a great extent the Claimant repeats what he has said time and again. My reasons for concluding that I am unable to say that the Claimant has no reasonable prospects of success in showing that he made protected disclosures are broadly the same for each of the disclosures. I shall set out the reasons for my conclusions in respect of PD1 in some detail. Thereafter I shall simply comment where there any additional points taken by Mr Susskind.

[29]In respect of PD1 I am invited to have regard to what was said by my colleague EJ Gardiner on the application for interim relief. He was of course asking himself whether the Claimant had established that he was ‘likely’ to succeed. Something higher than probable. I am dealing with the issue of whether the Claimant has no reasonable prospects of success. A much lower test.

[30]Mr Susskind refers to passages quoted by the Claimant in his further and better particulars. I think in fairness the Claimant does not say that he relies only on those selective quotes. I have had regard to all that the Claimant has written.

[31]Mr Susskind says that no legal obligation is identified. That is a little unfair. The e-mail refers explicitly to the fiduciary duties owed to depositors. The Claimant has set out in his further information details of the regulatory regimes. In the e-mail of 14 July 2021 the Claimant makes reference to some of these standards. I bear in mind that the e-mail is sent to employees dealing with ‘risk’. At the final hearing evidence might be led that compliance with the various standards identified by the Claimant was the bread and butter of these roles. Case Number: 3207297/2021 6 of 26

[32]I do not accept that there is an absence of ‘information’ in the Claimant’s e-mail meaning there is insufficient specificity to satisfy the test in Kilraine. In particular, the Claimant sets out things he says are wrong with the existing data systems . He says that there is a patchwork of legacy processes that do not allow ‘vertical’ and ‘horizontal’ visibility of data.

[33]The Claimant has said what he thinks was being done incorrectly. He has said at the outset that he believes that there is a risk to depositors. He has referred in terms to ‘capital adequacy’.

[34]The Claimant is speaking to an educated audience. His role is one of risk management. One risk that requires management is the risk to depositors if the bank makes poor investment choices and/or is undercapitalised. The Claimant’s audience were familiar with the regulatory regime. Whether the Claimant did or did not spell out the possible consequences of a poor data management system his audience would have been aware of them.

[35]Here, and elsewhere, Mr Susskind suggests that no legal obligation has been identified. The Claimant, in his further information, has mainly referred to the BCBS standards and guidelines. He describes these standards and guidelines as a ‘fundamental regulatory obligation’. It is important to put these BCBS standards into context. They were a response to the financial crash of 2008 when a number of banks failed by reason of being undercapitalised. The guidelines were drawn up with the aim of preventing a repeat of this.

[36]In the UK banks are regulated. Mr Grisdale sets out a summary in his witness statement. From my own knowledge gleaned from similar cases I am aware that the Prudential Regulation Authority has fundamental rules couched in very general terms. Acting in breach of established guidelines such as the BCBS standards potentially amounts to a breach of those fundamental rules. The PRA has the power to enforce those rules and to levy fines against institutions that breach them. The FCA operates in a similar way.

[37]It may not be the case that any particular BCBS, BIS or US OCC guideline is directly enforceable. The issue is whether the Claimant could reasonably believe that a breach of such guidance would amount to a breach of a legal obligation.

[38]I consider that Eiger Securities LLP v Korshunova , Riley v Belmont Green Finance Ltd and Carr v Bloomberg do not detract from the need to firstly identify what legal obligation the worker says that he had in mind at the time of the disclosures and then to ask whether he believed what he said tended to show a past, present or future breach of that obligation. It is not determinative that the worker was wrong about the existence of the legal obligation. I accept that if the Claimant knew that there was no legal obligation but simply a moral obligation that would mean that he failed the subjective element of the test – Korshunova. The Claimant says that he believes that the Respondent was subject to legal and not moral obligations. I am of the view that that can only be tested by cross examination.

[39]The next issue is whether I can say that the Claimant has no reasonable prospect of establishing that his belief that the standards he says he had in his mind Case Number: 3207297/2021 7 of 26 amounted to legal obligations. I do not think I can. I suspect that in the wake of the financial crash many people would assume that the rules and guidance put in place to prevent a recurrence would have the force of law. It might be entirely reasonable to assume that the PRA and FCA would take steps to enforce those rules and guidance. They might be wrong, but it is possible that such a belief would be reasonable.

[40]What is also required is that the Claimant needed to have a reasonable belief that the information he was disclosing tended to show a breach of the legal obligation he had in his mind. That is a separate question but bound up in the same test.

[41]I accept Mr Susskind’s point that in respect of a potential future breach the Claimant needs to reasonably believe that such a breach is ‘likely’ - Kraus v Penna plc

[2003] UKEAT 0360_03_2011

. That does not mean that the Claimant needs to show that a breach of a legal obligation in the future was probable but that he actually and reasonably believed that it was. There is the degree of latitude identified in Chesterton that the Claimant can pray in aid at the final hearing. A further difficulty in dealing with this issue on an application to strike out the claim is that there are assertions and counter assertions based on untested evidence. The Claimant says that the Respondent’s data management processes have resulted in a ‘house of cards’. The Respondent says that there is nothing wrong at all and that the systems have been approved by the regulator. There is a factual dispute that underlies the question of whether the Claimant could have reasonably believed that a future breach is likely.

[42]It is not entirely clear that the Claimant is not saying that he believed that the failure (in his eyes) to improve the data management was not an existing breach of legal obligations. That is how I have understood his case following his oral submissions. That is consistent with the Claimant’s further information where he sets out the legal obligations he says arise from BCBS ‘Principles for Effective Risk Data Aggregation & Risk Reporting’.

[43]I am unable to say at this stage that the Claimant has no reasonable prospects of showing that he reasonably believed that saying that providing information that the data management system operated by the Respondent is inadequate tended to show a breach of the legal obligations that he believed the Respondent was subject to.

[44]Mr Susskind says that as the concerns raised by the Claimant related to the Respondent’s internal processes he has no reasonable prospect of showing that he reasonably believed that the disclosure was in the public interest. I cannot accept that submission. It is self-evident that it is in the public interest for large banks to properly manage risk. The collapse of a bank is not a matter of purely private concern. At the very least I would say that the Respondent has failed to show that the Claimant has no reasonable prospects of showing that any belief he held that a disclosure about risk management was in the public interest was unreasonable.

[45]I consider that the same reasoning applies to the other protected disclosures which means that I can deal with them fairly briefly. Case Number: 3207297/2021 8 of 26

[46]PD2 is said to be contained in a power point presentation. In these slides the Claimant repeats his contention that the Respondent lacks a ‘Credit Data Backbone’. He says that there is a patchwork of legacy systems. He refers to a lack of subject matter expertise with external consultants. He refers in terms to the regulatory regime.

[47]Again I am asked to have regard to comments made by EJ Gardiner. He did not think it likely that the Claimant would establish PD2 as a qualifying disclosure. EJ Gardiner says that these slides do not identify the factual basis for suggesting that there is a breach of any legal obligation. I do not agree. The Claimant says that the existing data management software is inadequate. That is a factual statement. I do not think a disclosure would fail to qualify as a protected disclosure just because the worker fails to spell out the consequences. Particularly here where he is speaking to an educated audience.

[48]I turn to PD3. That concerns what the Claimant said at a meeting on 16 July 2021. There is a what is clearly a summary of the Claimant’s position in 4 numbered paragraphs. Those paragraphs contain a critique of the Respondent’s data management systems. He refers in terms to US OCC guidelines and to BIS principles. Mr Susskind says that the Claimant could not reasonably believe that these gave rise to legal obligations. I disagree that there is no reasonable prospect of the Claimant establishing that. I have come to the same conclusion in relation to striking out this allegation for the reasons I give above.

[49]PD4 is said to be contained in an e-mail of 9 August 2021. Mr Susskind makes identical points in respect of this purported disclosure as he does to the disclosures above. In that e-mail the Claimant says that the Respondent’s approach to data management is not in line with regulatory guidance and best practice. I did question whether that lacks specificity. I have concluded that it is sufficiently specific to potentially qualify as a qualifying disclosure or at least I have concluded that the allegation should not be struck out. What the Claimant says needs to be seen in context. He had identified specific issues in the previous disclosures (whether right or wrong) he criticised the existing system as fragmented and lacking visibility. He described it as being maintained by patchwork. I consider that in this context there is sufficient specific information included in the disclosure. I need not repeat my conclusions about the other elements. The points made are the same.

[50]In respect of PD5 the same points are taken. I am also asked to have regard to the views of EJ Gardiner who considered that the power point slide deck did not identify specific breaches of a legal obligation. On one slide the Claimant quotes extensively from ‘BIS Corporate Principles for Banks’. These include the point that data management systems should be accurate. It is clear that what the Claimant is saying in subsequent slides is that the current system falls short of those standards. He is maintaining his suggestion that only a ‘Credit Data Backbone’ will meet those requirements. I do not think that lacks specificity. The Claimant may very well be wrong, and the Respondent says he is, but it is clear what he was saying. In notes of meetings I have been provided with there is a strong suggestion that the Respondent’s senior employees understood what the Claimant was saying it was more the case that they did not agree. I would not strike out this allegation on the basis that the Claimant has no reasonable prospect Case Number: 3207297/2021 9 of 26 of shoring that what he said met the test in Kilraine or, for the reasons I have given the other elements of the test set out in Section 43B.

[51]PD 6 relates to a telephone call the Claimant had with Mr Tai said to be the Chairman of the Risk Committee HSBC. The Claimant’s case is that he took Mr Tai through the slide packs he had presented on 7 and 20 September 2021. I have already found that I cannot accept that there is no reasonable prospect of success in showing that those slide packs did not amount to qualifying disclosures. It follows that if the Claimant repeated what he said to Mr Tai I must come to the same conclusion here.

[52]Mr Susskind does not deal with whether disclosures 7 to 13 are qualifying disclosures. He has argued that it is unnecessary to do so because the disclosures post date the decision to dismiss the Claimant. I return to that point below.

[53]PD7 concerns a disclosure to the PRA. Under Section 43F the Claimant will have an additional hurdle. He will have to show that he reasonably believed that what he said is ‘substantially true’. In my view that is not something that can be resolved without hearing the Claimant give evidence and having that evidence tested in cross examination.

[54]PD8 made to both the Respondent and the PRA includes an explanation of why the Claimant believes that the data management systems employed by the Respondent are inadequate. His complaint made again is about all parts of the business having visibility of risk in other parts of the business. It is properly arguable that that has sufficient factual specificity to satisfy the Kilraine test.

[55]I shall not deal further with the remaining alleged qualifying disclosures. The Claimant continues to give the same information on every occasion. I consider that it is impossible to say that the Claimant has no reasonable prospect of establishing that on each occasion he made a qualifying disclosure. My reasons are the same as I have set out above. Protected disclosures – Conclusions.

[56]For the reasons I set out above, having had regard to all the points raised by Mr Susskind I do not accept that the Claimant has no reasonable prospects of success in shoring that he made protected disclosures. Nothing I set out above should be taken as an indication that I consider the Claimant’s claim strong. I accept that there are some cases where an accurate assessment can be made of the prospects of success simply by looking at what was written or said. In other cases the context and any contested factual background becomes important. I find that this is not a case where a paper determination allows me to say that these allegations should be struck out. Causation

[57]There are two arguments raised by the Respondent. The first is that no protected disclosure that post dated the Respondent’s decision that the Claimant’s temporary assignment would not be renewed could have caused his dismissal. The second relates to the issue of causation generally. It is said that the ostensible Case Number: 3207297/2021 10 of 26 reasons for the dismissal relied upon by the Respondent are so strong that the Claimant has no reasonable prospects of displacing them.

[58]Mr Susskind makes written submissions in support of those submissions at paragraphs 58 to 66 of his skeleton argument. I had a good note of Mr Susskind’s submissions made orally and took those submissions fully into account not only when reaching my decision but also when giving my reasons.

[59]I do not consider that there is anything in Mr Susskind’s skeleton argument which I have not expressly or implicitly dealt with when giving my reasons.

[60]I do not consider that there is any basis for me to vary or revoke my decision. Discrimination

[61]Mr Susskind set out brief written reasons why he said that the discrimination claims should be struck out. These are between paragraphs 67 and 73 of his skeleton argument. His arguments overlap considerably if not completely with those of Diya Sen Gupta. I had a note of his oral submissions before me when I gave my reasons.

[62]Perhaps more by luck than judgment I consider that I have dealt with all the matters raised by Mr Susskind in my original reasons. It follows that I do not find that there is any basis for me to vary or revoke those decisions.

[63]I end by apologising for the error on my part. I was busy and conscious of the delay. That is a poor excuse for overlooking the arguments identified above and discourteous to the parties. As conscientiously as I could I have revisited my decisions where I failed to deal with any points made by Mr Susskind. Ultimately I have concluded that my original decision would have been no different.

[64]I will deal with other outstanding matters in a further case management order. Employment Judge Crosfill Dated: 14 November 2023 ... Case Number: 3207297/2021 11 of 26 Annex 1 This annex includes the decision and the reasons for not striking out the Claimant’s claims originally sent to the parties in a case management order dated 3 October 2023 The paragraph numbers below have been preserved from the original reasons sent to the parties.

[65]In advance of the Preliminary Hearing of 20 June 2022 both parties had prepared skeleton arguments. On behalf of the Claimant Lesley Millin of Counsel had prepared a skeleton that dealt with the application strikeout the claim. On behalf of the Respondent Diya Sen Gupta KC had produced a scope running to some 32 pages. As the Claimant was representing himself before me I had regard to the skeleton argument that had been submitted on his behalf. The Respondent had provided a bundle of authorities which ran to 459 pages. Most if not all of those authorities were familiar to the Employment Tribunal.

[66]Mr Susskind adopted the skeleton argument that had been prepared for the previous hearing for the purposes of the Respondent’s applications but set out submissions orally to explain the basis of the applications. The applications were broad ranging and suggested that none of the claims brought by the Claimant had any reasonable prospects of success.

[67]In respect of certain of the protected disclosures the Respondent argued that the allegation that the Claimant was dismissed for the reason or principal reason of disclosures made after 30 September 2021 had no reasonable prospect because it was said that the decision to dismiss the Claimant had already been taken at that stage. In respect of the earlier disclosures the argument put forward was that, when viewed against the contemporaneous documents there was no reasonable prospect of success in showing that was the reason or principal reason for the dismissal.

[68]The arguments in support of that latter contention included reliance upon documents which were said to show that the Respondent afforded the Claimant a Case Number: 3207297/2021 12 of 26 number of opportunities to meet with senior managers to discuss his concerns. It was said that contemporaneous documents made it clear that the Claimant was spending an excessive amount of time raising issues about data controls that he was not spending any or any sufficient time on the job he was employed to do. In the light of that it was said that it was inherently unlikely that the Claimant was dismissed for making protected disclosures. The Respondent had provided a statement from Mr Andy Grisdale in opposition to the Claimant’s application for interim relief. The Respondent relied upon that statement in support of its present applications.

[69]In relation to the claims for discrimination the argument that was made was that the allegations had no reasonable prospect success because they were based on a bare assertion. There was nothing more than an assertion that there was a dismissal and the existence of a protected characteristic. That it was said would never be enough to shift the burden of proof to the Respondent.

[70]Finally it was argued that in respect of the unfair dismissal claim the Claimant had no reasonable prospect of success because he had failed to identify any credible basis for suggesting that the non-renewal of his temporary contract was unfair. It was said that it was improper to allow the claim to proceed on the basis that something might turn up.

[71]The paragraphs above are brief summary of the manner in which the Respondent put its case. I mean no discourtesy by not referring to the arguments in full, but I took them into account in reaching the conclusions below.

[72]The Claimant made oral submissions to me. His early submissions were focused on the history and reasons behind his protected disclosures. He suggested that he had gradually had to escalate his disclosures when nothing was done in respect of the issues that he was raising. He drew attention to the fact that a decision was taken to dismiss him place him on garden leave in November 2021. He suggested that the people who took the 1st decision to select for redundancy and the 2nd decision to dismiss him were not the same people but asked me to infer that it was inconceivable that they would not have spoken to each other.

[73]The Claimant argued that it was too early to reach any view as the merits of his claim in circumstances where he had not been given disclosure.

[74]When dealing with the age discrimination complaint the Claimant’s submission was that he believed that because of his age and experience it was thought that he was difficult to manage. He expanded upon that and suggested that the older person was, the more difficult it would be to manage them. Contemporaneous documents

[75]I was provided with contemporaneous documents. I have had regard to them all but considered the following documents to be most significant to the decisions that I had to make.

[76]The first document that I consider significant is a letter to the Claimant dated 1 October 2020 given him notice of termination of his employment from his original role. The correspondence continues and on 10 December 2020 the Claimant was Case Number: 3207297/2021 13 of 26 given temporary redeployment commencing on 14 December 2020 which was ‘expected to end on 31 December 2021’. The letter set out that the balance of the Claimants notice period would be deferred.

[77]I note that the first protected disclosure relied upon by the Claimant was made on 14 July 2021. It follows that the decision to terminate the Claimant’s original contract of employment could have had nothing whatsoever to do with any protected disclosures.

[78]I’ve seen an email chain which started with an email from the Claimant to Barry Bagirathan who was his line manager. The Claimant states that he is cancelling all future one-to-one meetings. Later in the email chain he explains this by suggesting that he needed to ‘figure out with Simon and HRD where I could be reassigned and my wholesale credit risk expertise can be gainfully employed in the risk transformation process……!’. By many standards the Claimant emails could be regarded as being rude.

[79]On 24 June 2021 a colleague Michael Soppitt raised a complaint with the Claimant’s managers about an email sent by the Claimant in which he said that Michael Soppitt had ‘tried to sell consultant hogwash with no substance’. This was plainly inappropriate language to use in a professional environment. These issues were raised with the Claimant by his managers the emails contained within the bundle would suggest the Claimant was unrepentant.

[80]On 16 July 2021 the Claimant attended a meeting with a number of senior managers. He had prepared a series of PowerPoint slides. The opening slide is robustly critical and includes a cartoon suggesting that the Respondent discouraged initiative. The notes of the meeting suggest that there was a broad ranging discussion about the ideas that both the Claimant had and those of the other participants in the meeting. The minutes the meeting would not suggest that the attendees resisted the Claimant’s input.

[81]A further meeting took place on 22 September 2021 to discuss work done by the Claimant in respect of the issues that he had raised. Once again the Claimant had prepared and presented a PowerPoint presentation in which he advocated for a wholesale reform of the way in which data was collected and used. He is recorded in the minutes as saying, ‘that the only correct approach was to implement one system and to put all data in one place’.

[82]I have had regard to correspondence that followed this meeting. That records that the Claimant’s managers did not agree with the Claimant’s proposals and that they believed that there were sufficient systems in place that it was not necessary to make the changes that the Claimant suggested.

[83]On 30 September 2021 in response to a question about whether the Claimant and the two other members of his team were to have their contracts extended Simon Penny responded by e-mail stating ‘To confirm, Irfan Hashmi is NOT to be extended’.

[84]On 8 October 2021 the Claimant was told that his temporary role would not be extended. An e-mail sent on 14 August 2021 from Charlotte Tauszky to Andy Case Number: 3207297/2021 14 of 26 Grisdale shows Ms Tauszky apparently setting out the rational for the decision. The suggestion in that e-mail is that whilst two of the Claimant’s colleagues who had also been in similar temporary roles were to be retained the Claimant was not. Part of the explanation is ‘relative performance’. 8 matters are set out in the e-mail. A most of these could broadly be categorised as the Claimant not having satisfactorily completed the work that he was actually employed to do. The 6th performance issue refers to the title of the Claimant’s PowerPoint slides prepared for the meeting of 16 July 2021.

[85]The correspondence that follows showed that the Claimant immediately asserted that the reason for the termination of his temporary role was that he had raised concerns about data handling.

[86]On 1 November 2021 Andy Grisdale sent the Claimant an e-mail. He included minutes of two meetings that he had attended with the Claimant. He is responding to an e-mail from the Claimant in which the Claimant described the risk 2025 transformation plans as ‘hogwash’. The Claimant suggested that he was being dismissed for raising these concerns. Andy Grisdale suggests that the tone of the Claimant’s e-mail is unprofessional. He went on to set out his view that the changes proposed by the Claimant were not appropriate. He went on to say, ‘it is very evident that you have no belief in any component of our program of works, or the management running the same’. He went on to inform the Claimant that his Temporary role would be terminated on 30 November 2021 and that he would immediately be placed on garden leave.

[87]On 1 November 2021 James Yates wrote to the Claimant and told him that his deferred notice from his previous contract would be reinstated and that his employment would end on 30 November 2021. The Claimant was later told that his contract would be extended to 31 December 2021 to allow him to look for alternative roles. The law to be applied Striking out claims

[88]The power to strike out a claim under Rule 37(1)(a) on the ground that it has no reasonable prospect of success should only be exercised in rare circumstances Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly

[2012] IRLR 755

, at para 30. In discrimination claims where findings of fact can depend upon whether or not it is appropriate to draw inferences of discrimination from primary facts particular care needs to be taken before striking out a claim Anyanwu v South Bank Students' Union

[2001] IRLR 305

, HL. The same cautious approach should be applied in a claim brought under S47B ERA 1996 North Glamorgan NHS Trust v Ezsias

[2007] IRLR 603

[89]It will generally not be appropriate to strike out a claim where the central facts necessary to prove the case are in dispute. It is not the function of a tribunal such an application to conduct a mini trial. The proper approach is to take the Claimant’s case at its highest as it appears from their ET1 unless there are exceptional circumstances North Glamorgan NHS Trust v Ezsias. Such exceptional circumstances could include the fact that the Claimant's case is contradicted by Case Number: 3207297/2021 15 of 26 undisputed contemporaneous documents or some other means of demonstrating that 'it is instantly demonstrable that the central facts in the claim are untrue' Tayside.

[90]In Balls v Downham Market High School

[2011] IRLR 217

Lady Smith reminded tribunals that the test is not whether the claim is likely to fail but whether there are no reasonable prospects of success. That however is not the same thing as there being no prospects of success at all - see North Glamorgan NHS Trust v Ezsias at para 25 citing Ballamoody v Central Nursing Council

[2002] IRLR 288

. Another way of putting the test is that the prospects are real as opposed to fanciful see North Glamorgan NHS Trust v Ezsias para 26.

[91]QDOS Consulting Ltd and others v Swanson

UKEAT/0495/11/RN

provides authority the proposition that orders under rule 37 should be made only in the most obvious and plain cases and not in cases where there is a need for prolonged and extensive study of documents and witness statements. Those propositions may also be found in the authorities above. HHJ Serota QC prior to stating those propositions drew attention to the similar position under the Civil Procedure Rules. He said (at para 45): [45] It may be instructive to compare the position of striking out under the Employment Tribunal Rules with striking out as provided for in the Civil Procedure Rules. I note that there is a close affinity between striking out under CPR 34.2(a) [sic –there is a typo in the report], which enables the court to strike out the whole or part of a statement of case that discloses no reasonable grounds for bringing or defending a claim overlaps with Pt 24, on summary Judgment. Rule 24(2) entitles a court to give summary Judgment against a Claimant or Defendant on a claim or issue where there is no real prospect of succeeding on the claim or issue, or successfully defending the issue. The notes to CPR 24 in the White Book make this clear: “In order to defeat the application for summary Judgment, it is sufficient for the Respondent to show some prospect; i.e. some chance of success. That prospect must be real; i.e. the court will disregard prospects that are false, fanciful or imaginary. The inclusion of the word 'real' means the Respondent has to have a case which is better than merely arguable. The Respondent is not required to show their case will probably succeed at trial; a case may be held to have a real prospect of success even if it is improbable. However, in such a case the court is likely to make a conditional order.”

[92]Care needs to be taken when assessing whether a case has no reasonable prospects of success to avoid focussing only on individual factual disputes. A case may have some reasonable prospects when regard is had to the overall picture and all allegations taken together see Qureshi v Victoria University of Manchester

[2001] ICR 863

[93]The statements of principle derived from the cases referred to above do not in any way fetter the discretion of a tribunal to strike out a case where it is appropriate to do so Jaffrey v Department of the Environment, Transport and the Regions

[2002] IRLR 688

at para 41. Case Number: 3207297/2021 16 of 26

[94]In Chandhok & Anor v Tirkey

UKEAT/0190/14/KN

Mr Justice Langstaff made the following comments (with emphasis added): “20. This stops short of a blanket ban on strike-out applications succeeding in discrimination claims. There may still be occasions when a claim can properly be struck out – where, for instance, there is a time bar to jurisdiction, and no evidence is advanced that it would be just and equitable to extend time; or where, on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic which (per Mummery LJ at paragraph 56 of his judgment in Madarassy v Nomura

[2007] ICR 867

): "…only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination." Or claims may have been brought so repetitively concerning the same essential circumstances that a further claim (or response) is an abuse. There may well be other examples, too: but the general approach remains that the exercise of a discretion to strike-out a claim should be sparing and cautious. Nor is this general position affected by hearing some evidence, as is often the case when deciding a preliminary issue, unless a Tribunal can be confident that no further evidence advanced at a later hearing, which is within the scope of the issues raised by the pleadings, would affect the decision.”

[95]In Ahir v British Airways Plc

[2017] EWCA Civ 1392

Underhill LJ said: [at paragraph 16] Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between 'exceptional' and 'most exceptional' circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be 'little reasonable prospect of success'…. [and at paragraph 24] As I already said, in a case of this kind, where there is on the face of it a straightforward and well-documented innocent explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation is not the true explanation without the claimant being able to advance some basis, even if not yet provable, for that being so. The employment judge cannot be criticised for deciding the application to strike out on the basis of the actual case being advanced.’ Case Number: 3207297/2021 17 of 26

Discussion and Conclusions

[96]I shall deal with the argument that protected disclosures that post-dated the decision that the Claimant’s contract would not be extended could not be the cause of the dismissal. I take account of the following matters. It is unclear exactly what was communicated to the Claimant on 8 October 2021 about the date upon which his temporary role would come to an end. According to the terms of the appointment letter his role was expected to end on 31 December 2021. It therefore appears that the decision communicated in writing on 1 November 2021 that the Claimant’s contract would terminate on 30 November 2021 was a fresh decision. There was then a further decision to extend the notice period until 31 December 2021.

[97]Ordinarily the reason for a dismissal will be the reason for giving notice. That proposition is not beyond argument see Parkinson v March Consulting Ltd

[1997] IRLR 308

but I shall assume it is correct for the purpose of the decisions below.

[98]It is clear that events that postdate the giving of notice might make a dismissal which was otherwise fair unfair. In those circumstances events between giving notice and dismissal may be relevant to the question posed by section 98(4) of the Employment Rights Act 1996. The list of issues proposed by the Claimant in the ‘ordinary’ unfair dismissal claim, which I have ruled above forms part of the claim, includes a question of whether sufficient efforts were made to obtain suitable alternative employment. Amongst the correspondence I have seen are assertions by the Claimant that there was suitable employment available.

[99]Whilst the Claimant was notified that his contract would not be extended as early as 8 October 2021(and it appears that that decision was taken as early as 30 September 2021) I consider that it is properly arguable that the decision as to how exactly that would be implemented was not taken until 1 November 2021. On the evidence the previously notified date of 31 December 2021 had been brought forward. It is properly arguable that that amounted to a fresh decision to dismiss the Claimant.

[100]The only disclosure that postdates the Claimant being told that his contract would end on 30 November 2021 is the disclosure at paragraph 1.6(l) of the marked-up list of issues commencing at page 24 of my bundle. That is an email sent by the Claimant to the Bank of England on 13 December 2021. I would accept that logically that cannot have had any influence on the decision taken on 1 November 2021. It follows that insofar as the Claimant relies upon that email being the reason or principal reason for his dismissal that allegation has no reasonable prospect of success. However, the Claimant was during December given additional time to seek an alternative role. Had he done so his dismissal might have been averted. The Claimant says that there were opportunities but that they were denied to him. He does not identify any specific opportunity/denial after his final protected disclosure but there is not sufficient clarity for me to be able to say that this final disclosure could have had no causative effect on the failure to offer the Claimant an alternative role. Case Number: 3207297/2021 18 of 26

[101]I have used the expression above ‘properly arguable’ to describe the argument that the Claimant might be able to rely upon of the reasons for the decision taken on the 1 November 2021 rather than the earlier reasons for the decision that his contract would not be extended. I should make it clear that what I am saying is that I do not accept that the Claimant has no or little reasonable prospect of success of showing that alleged protected disclosures made between 8 October 2021 and 1 November 2021 were the principal reason for his dismissal on the basis of the chronological point attractively taken by Mr Susskind. Whilst the point has far more force in relation to the final disclosure the picture was not sufficiently clear that I could say that there are little reasonable prospects of the Claimant showing that the principle reason that no redeployment possibilities were identified or offered was on the ground of this final disclosure.

[102]Before I deal with the second way in which it was said that the claim for automatic unfair dismissal has no reasonable prospect success I need to deal briefly with points raised in the skeleton argument of Diya Sen Gupta KC where she suggests that the Claimant has no reasonable prospect of establishing that he made protected disclosures. Neither in that skeleton argument nor before me was there a detailed analysis of each alleged protected disclosure.

[103]A great deal of Diya Sen Gupta KC’s skeleton argument is a critique of the quality of the Claimant’s pleaded case. Certainly the case that his ET1 required further particulars. It is also a fair point that in setting out the nature of the wrongdoing the Claimant has referred to Section 43B(1)(a) a suggestion that a criminal offence had been committed is being committed or is likely to be committed without identifying what criminal offences he says he believed at the time. The same criticism can be made of the Claimant’s references to Section 43B(1)(f) where he suggests that the information he disclosed tended to show that information of other wrongdoing has been, is being, or is likely to be deliberately concealed. I do not however think that the criticism is as well made where the Claimant relies upon section 43B(1)(b). The Claimant’s further particulars need to be read as a whole and they start with reference to the regulatory regime imposed on banks. It is at least tolerably clear that the legal obligations that the Claimant says he believed had been, were being or was likely to be breached arose from that regulatory regime.

[104]I shall try and resist setting out an extensive self-direction in respect of the requirements of a qualifying disclosure. 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." Case Number: 3207297/2021 19 of 26

[105]In Kilraine v London Borough of Wandsworth

2018 ICR 1850

, CA Sales LJ said (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)…….

[106]Where a worker says that the information they conveyed tended to show the commission of a criminal offence or a breach or likely breach of a legal obligation they do not have to be right either about the facts relayed or the existence or otherwise of the criminal offence or 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

[107]I commented in the course of the hearing that the Claimant was probably wrong to believe that the requirements of the BCBS are directly enforceable legal obligations but that doesn’t matter. What matters is that the Claimant might have reasonably believed that they were and that the information he disclosed tended to show they were being breached.

[108]The question of what is required to satisfy the public interest element of any disclosure was considered in Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed (Public Concern at Work intervening)

2018 ICR 731

. In that case it was emphasised that the might be a range of reasonable opinion about whether something was or was not in the public interest.

[109]Ms Sen Gupta KC suggests that if the Claimant was motivated by his own desire to generate work devising a new system that might exclude a belief that disclosures were in the public interest. Motivation is not the issue - Dobbie v Felton

UKEAT/0130/20/OO

- a disclosure might qualify even if the motivation was a personal one provided always that the worker had given some thought to the public interest and that was reasonable.

[110]Applying those principles to the disclosure is set out more fully in the Claimant’s further and better particulars I remind myself that at this stage I am only asking whether the Claimant has no reasonable prospect or little reasonable prospect of establishing that he has made qualifying and protected disclosures. I consider that Mr Susskind’s decision not to focus on these points was a decision well made. It would be highly ambitious to argue that the Claimant has little reasonable prospect of establishing that he made protected disclosures in circumstances where there Case Number: 3207297/2021 20 of 26 has been no disclosure and no cross examination. The question of whether somebody held a particular belief or set of beliefs is highly fact sensitive.

[111]It follows from what I said above that I would not make a deposit order or strike out any aspect of the claim on the basis that the Claimant has no or little reasonable prospect of establishing that he made protected disclosures as set out in his further information.

[112]I then turned to the question of whether the Claimant has no reasonable prospect of success or little reasonable prospect success in showing that the reason or if more than one the principal reason for his dismissal was his protected disclosures.

[113]The threshold that in a claim relying on Section 103A is relatively high. The claim will not succeed unless the Tribunal concludes that at least the principle reason for the dismissal was that the Claimant had made protected disclosures. It will be for the Claimant to raise at least an evidential case before the burden passes to the Respondent to disprove that reason – see Kuzel v Roche Products Ltd

[2008] EWCA Civ 380

[114]Whilst the case is at an early stage I find that the contemporaneous documents provide the support for the following propositions relied upon by the Respondent:114.1 That the Claimant was displaced from his original role for reasons totally unconnected with his alleged protected disclosures and that, subject to any extension, his role would end on 31 December 2021; and

114.2 That the Claimant was singularly reluctant to undertake many of the tasks that he had been assigned; and

114.3 That his language towards his colleagues and managers was unprofessional and merited the intervention of his managers; and

114.4 When the Claimant raised his issues with the collection and management of data the Respondent arranged a succession of meetings where the Claimant was invited to present his ideas and at which they were discussed; and

114.5 That the Claimant was reminded that he needed to attend to his core duties as well as contributing any ideas; and

114.6 That a number of duties that the Claimant was asked to perform were diverted to others when they were not completed; and

114.7 That the Claimant’s salary had not been reduced to that appropriate for the grade of work he was allocated and was more than the two colleagues that were retained making his employment more expensive; and

114.8 That an initial decision that the Claimant’s contract would not be extended was taken as early as 30 September 2021 prior to many of his disclosures. Case Number: 3207297/2021 21 of 26

[115]I am of the view that it is highly unlikely that a Tribunal at a final hearing would not accept that those contemporaneous documents support the findings I have recorded above.

[116]The Claimant says that the Respondent’s managers did nothing in response to him raising his concerns. That does not appear to be disputed. The contemporaneous documents and in particular the documents summarising the meetings that took place to discuss the Claimant’s ideas show that the Claimant’s managers appeared to disagree with the Claimant about the benefits of the changes that he proposed. That does not strike me as a strong factor in the Claimant’s favour. It is not at all obvious to me that the Claimant was right when he says that his suggestions were the only means of achieving compliance with regulatory standards. I note that in meetings a significant number of people disagreed and made records of their disagreement.

[117]I have had regard to the correspondence which recorded the performance concerns that, on the Respondent’s case, contributed to the decision that the Claimant’s contract would not be extended when his colleagues’ contracts were extended [Bundle 294 and elsewhere]. The reasons set out in that document set out concerns about the manner in which the Claimant interacted with colleagues and that he had not completed a number of tasks he had been asked to do. At paragraph 6 there is reference to the fact that the Claimant had engaged with Senior Executives sharing his ideas on ‘WCR systems and architecture’. This can be read as a reference to what the Claimant relies upon as protected disclosures.

[118]I did not understand the Respondent to deny that they had taken into account the fact that the Claimant had raised these matters as part of the performance concerns. Had they done so this e-mail would seriously undermine any such suggestion. It appears to be the Respondent’s case that dismissing the Claimant because he had effectively abandoned his existing role in favour of raising his views on how the Respondent should manage data was properly distinct from dismissing the Claimant for making protected disclosures. It is certainly properly arguable that such a distinction could be drawn see Kong v Gulf International Bank(UK) Limited

[2022] ICR 1513

and the numerous other decisions to the same effect discussed therein.

[119]Up to this point in my analysis I see little that supports the Claimant’s case. However, I do consider that there is one matter that may call out for an explanation. That is the e-mail from Andy Grisdale of 1 November 2021 in which he communicated to the Claimant a date for his dismissal and the fact that the Claimant would be placed on garden leave. The first matter which lends some support to the Claimant’s case is the chronology. That decision is communicated very shortly after a series of e-mails where the Claimant says he made (and I find it arguable that he did) make a number of protected disclosures. The second point is the express reference in that e-mail which I have quoted above where an opinion is expressed that ‘it is very evident that you have no belief in any component of our programme of works, or the management running the same’.

[120]I consider it highly likely that the Tribunal will conclude that the Claimant had no confidence in the Respondent’s systems and management relating to risk and data. Indeed that appears to be the foundation of what he says are his protected Case Number: 3207297/2021 22 of 26 disclosures. It will be open to the Respondent to seek to persuade the Tribunal that there is a proper distinction between being dismissed for making protected disclosures and a dismissal for refusing to listen and work with contrary views. However, I cannot say with any sufficient degree of confidence that there is no real prospect that the Claimant will rebut that argument.

[121]Whilst I consider many of the Respondent’s arguments on the reason for the dismissal to be well made I have regard to the fact that the contemporaneous documents which I have discussed above will not be the only source of evidence at any final hearing. I have identified at least some evidence that might support the Claimant’s case. That may be sufficient to require the Respondent to prove that the reason for the dismissal was not the alleged disclosures. In those circumstances I cannot say that the Claimant has no reasonable prospects of success.

[122]It follows that I shall not strike out the claim for reliant on Section 103A of the Employment Rights Act 1996. It follows from that that I should not strike out the unfair dismissal claim at all. The Discrimination Claims

[123]When he commenced his claims the Claimant indicated at section 8 of his ET1 that he was bringing claims of discrimination relying on the protected characteristics of age, race, and disability. Within the attachment to his ET1 the Claimant does not explain his claims of discrimination at all. Having heard the Claimant's application for interim relief Employment Judge Gardiner made an order that the Claimant gave further information about each act of discrimination.

[124]In his further information provided in response to that order the Claimant gives some particulars at section Q of that document. The Claimant identified the disability he relied upon as being the fact that he was an oesophageal cancer survivor. He went on to say that he was 'exactly the wrong ethnicity and vintage to have survived at HSBC - I do not belong to any of the entrenched power lobby groups and therefore was put on a sham redundancy list twice in 3 years'. At paragraph 6 he goes on to say 'There are 3 distinct groups that hold power and influence and protect their own kind and on a reciprocal basis help protect individuals from other similarly powerful and influential groups within HSBC. These 3 distinct power lobbying groups are White English Males, Brown Indian Origin Males and Women (global level)'. In section R he suggests that the principal decision-makers were white and English.

[125]In her skeleton argument Diya Sen Gupta KC deals with the discrimination claims very briefly. She says: 'The claimants discrimination claims are hopeless. They appear to be nothing more than the Claimant seeking to rely on every protected characteristic he has. He has failed to provide any adequate explanation as to how he has been allegedly discriminated against because of his age, disability, race or religion'. Case Number: 3207297/2021 23 of 26

[126]The reference to religion reflected the fact that the Claimant had sought to introduce a claim of religious discrimination when the parties were preparing a list of issues in advance of the hearing before EJ Russell. At the hearing before Employment Judge Russell the Claimant withdrew his claim for discrimination based on the protected characteristic of disability. Furthermore he did not make an application to amend his claim to rely on the protected characteristic of religion or belief. However the Claimant did indicate that he wished to advance a claim of sex discrimination. Employment Judge Russell made directions for the Claimant to reduce any application into writing. In her case management order produced sometime later she dismissed that application.

[127]The suggestion made by Ms Sen Gupta KC and adopted by Mr Susskind is that the Claimant appears to be seizing upon every available protected characteristic in order to frame claims against the Respondent has some force. However, a claim of discrimination does not turn upon the beliefs of the employee but upon the state of mind of those acting on behalf of the employer.

[128]As the authorities I have cited above make clear a large degree of caution is required in concluding that a claim of discrimination has no reasonable prospect of success and should be struck out. The difficulty of showing that a person was influenced by protected characteristics has been recognised both in statute and in the case law.

[129]The burden of proof in respect of all claims brought under the Equality Act 2010 is governed by section 136 of that act the material parts of which are:

[136]Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision. 130. It follows in my view that a claim for discrimination should not be struck out unless it is possible to say that either that the Claimant has no reasonable prospects of shifting the burden of proof to the Respondent by establishing facts from which the court could decide, in the absence of any other explanation, that there had been discrimination, or that the evidence supporting the Respondent's explanation for any treatment is so overwhelming that there is no reasonable prospect of the Respondent failing to discharge the burden of proof on the assumption that it has shifted. 131. Findings of discrimination are commonly supported only by inferences. 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 Case Number: 3207297/2021 24 of 26

[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

. 132. Discrimination cannot be inferred only from unfair or unreasonable conduct Glasgow City Council v Zafar

[1998] ICR 120

. That may not be the case if the conduct is unexplained Anya v University of Oxford

[2001] IRLR 377

, CA. Whilst inferences of discrimination cannot be drawn merely from the fact that the Claimant establishes a difference in status and a difference treatment see Madarassy v Nomura International plc

[2007] ICR 867

'without more', the something more ‘need not be a great deal. In some instances it will be furnished by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred’ see Deman v Commission for Equality and Human Rights

[2010] EWCA Civ 1279

per Sedley LJ at para 19. 133. It is not disputed that the Claimant was told that his role was redundant in 2020 and that he would be dismissed unless he found redeployment. It is not disputed that after a period of temporary redeployment his contract was terminated. The fact that the Claimant has the protected characteristics that he relies upon is not a matter of dispute. 134. These facts are not enough that an employment tribunal could infer that the reasons for the treatment were discriminatory. The initial focus is therefore on whether at this stage in the proceedings I can say with confidence that the Claimant has no reasonable prospect of successfully establishing that there is the 'something more' that might shift the burden to the Respondent. 135. I accept that the 'something more' could include the fact that a decision to displace the Claimant from his original role or not extend his temporary role was surprising and therefore called out for an explanation. There is absolutely no evidence before me that would suggest that the decision to terminate the Claimant’s original role was unusual or called out for an explanation. In respect of the later decision to terminate the Claimants temporary redeployment the Claimant was the only person not retained. That would not be enough by itself to draw an inference of discrimination. The only matter which in my view calls for an explanation is the initial acceleration of the Claimant's dismissal from the anticipated date of 31 December 2021 to 30 November 2021. A decision which was later reversed. If I ignore the explanation of the Respondent, which I must do the first stage, the decision to dismiss swiftly might call for an explanation. 136. The only other matter that the Claimant has identified in his further information is a suggestion that there are powerful groups of white people and people of Indian origin who are favoured within HSBC. I would accept that evidence of a disproportionate distribution of protected groups within an organisation might support an inference of discrimination. However, unless the statistical picture showed disparities at the level at which the Claimant worked the evidential value of such information would be greatly reduced. In my view it would be an incredibly thin basis to advance a claim merely to establish that the upper management of a company doing business in the United Kingdom were predominantly white. Case Number: 3207297/2021 25 of 26

[137]When I sought to explore with the Claimant how he put his age discrimination complaint he suggested that the older and more experienced a person was the more difficult they would be to manage because their experience might lead them to question any instructions. When I listen to the Claimant I was under the strong impression that it was the Claimant who was applying a stereotype. He did not provide any direct evidence that that stereotype was held by anybody else. I would accept that there are some stereotypes of the behaviours of older people. One of which might be that they are set in their ways. The Respondent's case in relation to the Claimant does include the suggestion that the Claimant was unwilling to listen to other voices. If that was unjustified it might support an inference that the stereotype referred to by the Claimant was held by those criticising him. The difficulty for the Claimant is that he says that he is right in his proposals for data management and his managers are wrong. I believe that the stereotype referred to by the Claimant provides only the thinnest support for his contention that his age had anything to do with his treatment.

[138]I turn to the question of whether there is no reasonable prospect of the Tribunal accepting the Respondent's explanation for the treatment. In respect of the initial displacement of the Claimant from his role that appears to have been part of a significant reorganisation. Whilst it is inherently implausible that that reorganisation took place for the purposes of removing the Claimant from the organisation because of race or age that does not mean that race or age had no part in the decision that it was the Claimant who was displaced. There is a distinction between the existence of an ostensible reason for the treatment and the actual reason for the treatment. That said, I consider the Claimant's case to be incredibly weak. It is clear from contemporaneous correspondence that the fact that the Claimant secured alternative role was welcomed. The Claimant was treated favourably in that his pay was not reduced.

[139]The Respondent's explanation for why the Claimant's temporary role was not extended when others were is also compelling. There is contemporaneous documentary evidence which I have discussed above that provides considerable support for the suggestion that the Claimant was reluctant to engage with the tasks that were central to his role but instead pursued his critique of the Respondent's data management systems. Somewhat ironically, the stronger the Claimant's suggestion that he was dismissed because of raising his concerns the weaker his discrimination claims become.

[140]The Claimant's suggestion that he was displaced from his earlier role in 2020 because of protected characteristics has an additional jurisdictional hurdle. Unless the Claimant can show that this earlier act forms part of conduct extending over a period with the later dismissal or that it is just and equitable to extend time the Tribunal will not be able to entertain these earlier claims.

[141]An additional difficulty for the earlier claims is that the Claimant was able to secure an alternative role. He appears to have been treated well in that his salary was preserved. Contemporaneous documents suggest that this was welcomed.

[142]I have had regard to all of the matters set out above. By the narrowest of margins I do not find myself able to say that the Claimant's discrimination claims have no reasonable prospect of success. I have identified matters which might possibly Case Number: 3207297/2021 26 of 26 provide the ‘something more’ required to shift the burden to the Respondent. Whilst the Respondent’s explanations for their treatment of the Claimant appear to be very strong indeed I cannot say that they are bound to be accepted as the only reasons for the treatment. The threshold for striking out claims is high and I must take into account the fact that there has not yet been any disclosure or exchange of witness statements. It follows that I must dismiss the applications made by the Respondent for orders striking out those claims. Case Number: 3207297/2021 - 1 - EMPLOYMENT TRIBUNALS Claimant: Mr Irfan Hashmi Respondent: HSBC Group Management Services Limited Heard at: East London Hearing Centre On: 9, 10, 11, 12, 16 17, 18 & 19 January 2024 and (IN-CHAMBERS) 12 April 2024 Before: Employment Judge Povey Members: Mr L O’Callaghan Mr J Webb REPRESENTATION: Claimant: In Person Respondent: Ms San Gupta Kc

Findings of fact

[143]The Claimant was continuing to ignore reasonable instructions, failing to apply himself to the tasks allocated to him and instead choosing to spend his time on his own project, notwithstanding the clear guidance being given to him from different senior managers.

[144]The fifth alleged protected disclosure (‘PD5’) had three elements to it (per Paragraph 1.1(e) of the List of Issues, at Appendix 3), as follows: 144.1. The Claimant’s revised presentation dated 7 September 2021 (at [954] – [972] of the Bundle); 144.2. The Claimant’s additional presentation dated 20 September 2021 (at [1004] – [1014]); and 144.3. The Claimant’s meeting with Mr Grisdale, Mr Lewis, Mr Mubashar, Simon Gordon (Global Head of Risk Transformation), Anne Lavandon (Global head of Wholesale Portfolio Management) Geoff Ford (Chief Risk Architect, Enterprise Technology) and Krishnan Ramadurai (head of Capital Management) on 22 September 2021.

[145]The minutes of the meeting were in evidence (at [1015] – [1017] of the Bundle). Mr Ramadurai had been specifically invited to the meeting by the Claimant “given his prior experience from a data perspective on the Trade Transformation programme” (at [1015]). The Claimant worked through his “observations and concerns across 4 core components” of the Respondent’s credit risk transformation programme, by way of his two presentations (dated 7 and 20 September 2021).

[146]The minutes recorded those present explaining the Respondent’s rationale for how and why it was progressing its credit risk transformation programme in the manner that it was and the Claimant expressing his disagreement. Mr Lewis explained how and why the Respondent managed data in the way that it did and offered “to walk [the Claimant] through the proposed data architecture.” Mr Gordon offered to further meet with the Claimant to share understanding. There was also a renewed request from Mr Grisdale for more prescription on the headlines being raised by the Claimant in his presentation.

[147]The Claimant appeared to misunderstand that the second line (that is, those working in Risk and Compliance, who ensured that those who were customer facing, the so-called first line, were working within the risk parameters set by the Respondent) did in fact own the credit data, not the first line (at [1015] of the Bundle and confirmed by Mr Gordon in his oral evidence). Case Number: 3207297/2021 - 29 -

[148]At the conclusion of the meeting, Mr Ramadurai “suggested to [the Claimant] that he listen to Mark [Lewis] and Andy [Grisdale] and take on board what was said. He informed what Mark [Lewis] had said made a lot of sense and what Andy [Grisdale] had said is that [the Claimant] needed to come to the table with specifics” (at [1017 of the Bundle).

[149]On 30 September 2021, in response to a query from HR as to whether the Claimant’s TR was to be extended in 2022, Mr Penney responded as follows (at [2235], emphasis retained): To Confirm, [the Claimant] is NOT to be extended.

[150]On the same day, the Claimant sent an email and his presentations to Jackson Tai, Independent Non-executive Director and Chair of Risk Committee (at [1020] – [1021]), asking to meet so that the Claimant could run thought his proposals. Mr Tai agreed to be a meeting with the Claimant, which was arranged for 4 October 2021. In his written evidence, the Claimant explained that he had in fact contacted the Respondent’s chairman, who had directed him to Mr Tai.

[151]On 3 October 2021, the Claimant sent an email from his work account to his home email address, which triggered the Respondent’s Data Loss Prevention Control (at [1032] of the Bundle). This was alerted to Mr Bagirathan via Mr Penney, who also alerted the Claimant (at [1031] – [1032]). On 6 October 2021, Mr Bagirathan emailed the Claimant, asking for more information about materials he sent to his home email address and why there may have been a beach of the Functional Instructional Manual, including possible reputational damage (at [1031]).

[152]The Claimant’s response was curt, flippant and somewhat hostile. Over two emails in reply, sent 10 minutes after receiving Mr Bagirathan’s apparently reasonable and clearly explained request for information, the Claimant said the following (at [1030] of the Bundle); If there is a breach Barry - then please take the necessary steps...! More specifically please sue me for what you call "reputational damage"....

[153]For understandable reasons, Mr Bagirathan shared the Claimant’s responses with Mr Penney (at [1030] of the Bundle).

[154]On 4 October 2021, the Claimant asked Mr Penney if there was any news about his contract being renewed (at [2242] – [2243] of the Bundle). As detailed above, Mr Penney had, by this time, decided not to renew the TR beyond 31 December 2021. He forwarded the Claimant’s query to Ms Tauszky, who emailed Mr Penney, Mr Grisdale, Mr Hudson and Ms Thomson as follows (at [2241]): I know that there has been confirmation of renewals going out to people and so we will need to address this with [the Claimant] quickly. Case Number: 3207297/2021 - 30 - Andy [Grisdale], Joanna [Thomason], how would you like us to handle the comms that we will not be extending [the Claimant]? I would imagine that this should not be simply sent over email and should be a more formal meeting with HR present in case [the Claimant] has any questions or concerns.

[155]Around the same time on 4 October 2021, and unbeknownst to the Respondent, the Claimant sent an email to the Bank of England (‘BoE’), via its whistleblowing email service (at [1132] – [1133] of the Bundle). He again shared his view that the Respondent were “getting the credit risk and data risk transformation very wrong and at considerable cost in time and resources” and some of the initiatives being adopted breached regulatory guidelines.

[156]The email of 4 October 2021 to the BoE was the seventh alleged protected disclosure (‘PD7’).

[157]At Paragraphs M.4.c. and N.1. of his written evidence (at [24] of the Witness Bundle), the Claimant alleged that he had first contacted the BoE later on the afternoon of 4 October 2021, after he had met with Mr Tai, (discussed further, below). In cross-examination, the Claimant’s attention was drawn to the time stamp on his email to the BoE, which recorded it being sent at 08:50. His response was that the time stamp could be wrong, before going on to allege that the email had been tampered with (in his email to the Tribunal on 17 January 2024, the day after he was cross-examined on the topic and again at the outset of the hearing on the same day).

[158]The Claimant provided no corroborative evidence to support his allegations of evidence tampering. In reality, it was far more probable that the Claimant had simply misremembered the chronology of the events of 4 October 2021. For those reasons, the Tribunal preferred the documentary evidence and found that the email to the BoE was sent on the morning of 4 October 2021 and before the Claimant met with Mr Tai.

[159]The Claimant also sent to Ian Cockerill (newly appointed Chief Credit Officer, replacing Mr McKeown) an email similar to the one he sent to Mr Tai, with the same presentation attached.

[160]Later the same day, the Claimant emailed Mr Penney, Mr Hudson, Ms Tauszky and Mr Grisdale to inform them that he had “a next level meeting set-up for later this afternoon with Jackson Tai (HSBC Board Chair of Risk Committee)” (at [1026] – [1027] of the Bundle). In response, Mr Grisdale emailed Ms Thomson as follows (at [1026]): Hi Joanna - need to speak with you about [the Claimant]. Is all getting out of hand and we need to shut this down somehow!!

[161]In his oral evidence, Mr Grisdale explained that he was referring to the Claimant’s continual habit of emailing his ideas and presentations to senior management. That was what needed to be shut down. In contrast, the Claimant alleged that Mr Grisdale’s email was evidence that the Case Number: 3207297/2021 - 31 - Respondent wanted to silence him because of what he was raising and the regulatory and legal breaches he was exposing.

[162]The Tribunal preferred Mr Grisdale’s explanation of his email of 4 October 2021 to Ms Thomson. In so doing, we were mindful of the context and history of events to date. First, there was clear and consistent evidence of the Respondent initially engaging with the Claimant and his ideas, not of shutting him down. However, the Claimant had failed to provide the detail which had been requested of him on more than one occasion. Instead of providing what was asked of him, the Claimant’s usual response was to send his ideas and presentations to another layer of senior management. He did not take on board or listen to the feedback he was receiving. Instead, he continually escalated his views to another audience.

[163]This was also against the backdrop of being asked by Mr Grisdale on 4 August 2021 to route all future communication regarding his ideas and proposals through him (at [2209] of the Bundle), which the Claimant ignored, and the on-going concerns about the Claimant’s performance, attitude and behaviour regarding the tasks and role he was actually employed to do in SCC.

[164]At 4pm on 4 October 2021, the Claimant met with Mr Tai. There were no records or minutes of the meeting but the Claimant relied upon the same presentations he had used at his meeting on 22 September 2021 (per PD5, above).

[165]That meeting was the sixth alleged protected disclosure (‘PD6’).

[166]In his oral evidence, Mr Grisdale confirmed that, following the Claimant’s meeting with Mr Tai and his email to the BoE, both of which occurred on 4 October 2021, neither the BoE nor the Respondent’s board asked for any changes to the polices and procedures being adopted and followed in how credit risk was managed.

[167]On 6 October 2021 (in addition to the email exchanges regarding the Claimant’s behaviour towards Mr Bagirathan, detailed above), Paul Collins (Risk 2025 Programme Assurance) emailed Mr Yates and Mr Penney as follows (at [1056] of the Bundle): Risk2025 are reviewing all temp roles at the moment and whether they are to be extended. We are confirming that [the Claimant’s] current temporary role will not be extended beyond his current end date. You should be receiving or may have already received [the Claimant’s] notice reinstatement letter and will subsequently receive his exit documents, both via the HR team who support you.

[168]The above was the culmination of a process which had begun some months earlier by reason of concerns with the Claimant’s conduct, behaviour and performance (and detailed, above). Case Number: 3207297/2021 - 32 -

[169]On 7 October 2021, the Claimant met with Mr Lewis and Mr Ford, a meeting which had arisen from the previous meeting of 22 September 2021. Mr Lewis and Mr Ford used the meeting to explain to the Claimant how the Respondent was complying with the Basel III Framework, with specific reference to the Wholesale Credit and Lending Transformation programme (per Mr Lewis’ email of 7 October 2021, which summarised the meeting, at [1066] – [1069] of the Bundle). Later the same day, the Claimant thanked them for their time and shared some further observations (at [127] – [1228]).

[170]In the Tribunal’s judgment, the fact that Mr Lewis and Mr Ford were prepared to meet with the Claimant and discuss such issues was at odds with the Claimant’s allegation that, by this time, the Respondent was attempting to silence him or get rid of him for blowing the whistle.

[171]On 8 October 2021, Mr Penney informed the Claimant that the TR would not be extended beyond 31 December 2021. In response, the Claimant asked why he was being let go and again shared his view that the Respondent’s transformation plans needed to be re-thought, as follows (at [1291] – [1292] of the Bundle): What you and my current chain needs to recognise is that I have put in significant extra effort into proposing a prescriptive level of re-think solutions as a one man team over a several months period - what I have proposed will save the bank from repeating the past mistakes over and over again and save a lot of extra cost and efforts. I maintain that the bank's transformation is on the wrong path and needs to be rethought...!

[172]When Mr Penney informed the Claimant that the termination of his TR would be referred back to “your prior Consultation manager” (namely, Mr Yates), the Claimant sent a further email to Mr Penney (at [1288] – [1290]), wherein he alleged that “ I am being asked to leave for speakingup.”

[173]The Claimant also raised a case with HR that the ending of the TR was retaliation for whistleblowing (referred to at [1263]) and emailed the Group Chief Executive (Noel Quinn), the Group Chief Financial Officer (Ewan Stevenson) and the Group Chief Human Resources Officer (Elaine Arden), also alleging that he was “being asked to leave the bank for speaking-up” (at [1226] – [1227]). The Claimant attached his presentation to that email and invited them to contact him to discuss it further.

[174]The Claimant was informed that his email would be directed to an appropriate colleague to review (at [1224] – [1225] of the Bundle).

[175]On 10 October 2021, the Claimant sent a further email to the BoE, to which he also attached his presentations of 7 and 20 September 2021 (at [1126] – [1128] of the Bundle). He also sent a copy of that email to the Financial Conduct Authority (at [1125] – [1126]). Case Number: 3207297/2021 - 33 -

[176]The Claimant’s email of 10 October 2021 to the BoE, with attachments, was the additional seventh alleged protected disclosure (‘PD7A’).

[177]There followed a number of emails and meetings between Ms Tauszky, Mr Grisdale, Mr Penney and Ms Thomson about the practicalities of bringing the TR to an end, given the terms of the TR and the notice requirements contained therein.

[178]On 14 October 2021, Amanda Willmore contacted the Claimant and explained that she had been asked to investigate the case he had raised with HR that his TR was not being extended in retaliation for speaking up (at [1182] – [1183] of the Bundle). It was clear that, despite the decision having already been taken not to extend the TR, the Claimant’s complaint to HR was not being ignored. Indeed, the opposite was true. It was being actively investigated.

[179]Also on 14 October 2021, the Claimant sent an email to Mr Lewis and Mr Ford (copied to various other senior managers and blind copied to the BoE and Financial Conduct Authority), wherein, having considered “the presentations and the concept” shared during his meeting with them on 7 October 2021, the Claimant stated that he had “re-thought the whole thing” (at [1064] of the Bundle). The Claimant did not contend that this was a protected disclosure.

[180]On 15 October 2021, the Claimant emailed the Financial Conduct Authority (at [1095] - [1096] of the Bundle), raising further concerns that “[T]he management are not amicable - they are simply stonewalling - this conflict of interest is against the spirit of all regulations and is very detrimental to the interest of the depositors and shareholders of the bank.” The Claimant did not contend that this was a protected disclosure.

[181]On 16 October 2021, the Claimant emailed various senior managers, including Mr Penney, Mr Grisdale, Mr Mubashar and Ms Tauszky, asked for a re-think of the credit transformation plans and set out his thinking (at [1153] – [1156] of the Bundle).

[182]This was the eighth alleged protected disclosure (‘PD8’).

[183]There followed an exchange of emails between Mr Wright (Global Head of Wholesale Credit & Lending), Richard Blackburn (Chief Risk Officer) and Mr Grisdale (at [1150] – [1152] of the Bundle), which included the following: 183.1. “I think we need to step in here somehow and make it clear to [the Claimant] that whilst he has a right to be heard, he does not have a right to unilaterally dictate how the company proceeds with projects. There is appropriate governance to challenge and shape such things” (per Mr Blackburn at [1152]); 183.2. “A lot going on in this space and will give you a call Monday to update - will look to meet with [the Claimant] early next week with Case Number: 3207297/2021 - 34 - a view to closing off HSBC capability discussions and controlling his distributions” (per Mr Grisdale, at [1151]); and 183.3. “Personally, I think he's crossed a line here. His contributions are not helping anyone's cause” (per Mr Blackburn, at [1150]).

[184]On 17 October 2021, Mark Hershey (Global Head of Wholesale Credit Risk) replied to the Claimant (at [1173] of the Bundle). Mr Hershey acknowledged that the Claimant had “raised these points before”, explained how and why the Respondent was approaching the matter in the manner that it was and concluded as follows: I appreciate that you have articulated a contrary view, but for the reasons outlined above, we intend to continue on the path we are on.

[185]On the same day, Mr Blackburn emailed Mr Hershey, copied to the Claimant and others as follows (at [1171] of the Bundle): I fully endorse your comments. I am sure there are many views on how things could be done differently but this is a complex area and we have a v strong team engaged on this with very experienced leadership and governance around the project.

[186]In response, also on 17 October 2021, the Claimant sent a further email to the same senior managers (at [1169] – [1170] of the Bundle). He again registered his disagreement, before outlining two options for how the Respondent could deal with his views. The Claimant criticised the Resppndent for “failing to provide any regulatory references that supports the senior management views versus what I have proposed.”

[187]This email was the ninth alleged protected disclosure (‘PD9’).

[188]Mr Grisdale then emailed the Claimant (again copied to the wider senior management), confirmed that the Claimant’s “issues and observations” had been widely listened to and considered and again asked that “all communications are please routed through me, your concerns have and are being heard and there is no benefit in repeatedly covering the same ground within the same teams” (at [1168] – [1169] of the Bundle).

[189]The Claimant again ignored Mr Grisdale’s request and immediately responded to the same wide, senior management audience, and explained why, in effect, he was refusing to limit his communications to Mr Grisdale [at [1167] – [1168] of the Bundle).

[190]The Claimant met with Mr Grisdale on 20 October 2021 (per the minutes at [1274] – 1278] of the Bundle). Mr Grisdale spent the first part of the meeting confirming that the Claimant’s observations and views had been considered and explaining why they were not agreed to. This was further evidence of the Respondent engaging with the Claimant’s views and opinions and providing clear and cogent explanations for why the Claimant’s proposals were not ones which the Respondent wanted to Case Number: 3207297/2021 - 35 - follow. Mr Grisdale asked the Claimant to respect that decision, focus on his own role and deliverables and cease sending emails on the matter to the wider management (at [1274] – [1275]).

[191]Mr Grisdale then explained why the TR was ending and reiterated that it had nothing to do with the Claimant speaking up as he had. Again, the Respondent was expending time and resources to explain its decision and reasoning and to reassure the Claimant. In addition, Mr Grisdale suggested that, even though the TR would not be extended, the Claimant should apply for any advertised roles that he was interested in (at [1275] – [1276] of the Bundle).

[192]In response, the Claimant re-visited a host of complaints and allegations about what he believed was the Respondent’s true motivation for ending the TR. He alleged that the Respondent was “the last stand of the British Raj and Empire” and suggested that Mr Grisdale was close to Mr Rigby and that Mr Rigby “had organised this” (who, as recounted above, the Claimant had in the past blamed for the decision to make his original role redundant). The Claimant again demanded regulatory references from the Respondent to justify the position it was taking and raised a number of other criticisms and grievances (at [1276] – [1278] of the Bundle).

[193]Whilst the Respondent, via Mr Grisdale, took time to explain why the TR was not being extended beyond 31 December 2021, it was under no obligation to do so. The terms of the TR agreement were clear. It came to an end automatically on 31 December 2021, with both parties entitled to end it on notice at any time beforehand. The fact that the Respondent explained why it was not extending the TR was above and beyond what was required under TR agreement itself (at [136] – [137] of the Bundle).

[194]Later on 20 October 2021 (and after their meeting), the Claimant emailed Mr Grisdale (at [1286] – [1288] of the Bundle). That email included the following: 194.1. Contrary to the clear and unambiguous request to stop sending emails to the wider senior management, the Claimant copied his email to a number of senior managers; 194.2. The Claimant referred to the Risk 2025 transformation plans as “hog wash”; and 194.3. The Claimant concluded his email by calling for Mr Grisdale’s resignation (“It is time for old guard to leave i.e. your resignation and allow new thought and ideas to flow”).

[195]Despite making a number of allegations and referring to alleged “disregard and mocking of BIS [Bank of International Settlements] and regulatory guidelines” (at [1287] of the Bundle), the Claimant did not contend that this email constituted a protected disclosure. Case Number: 3207297/2021 - 36 -

[196]Also on 20 October 2021, in an email by Lucy Williams (Group Head of Conduct Policy and Whistleblowing Oversight), it was recorded that the Claimant had decided not to pursue his complaint against the decision not to extend the TR as whistleblowing but rather “pursue it through executive escalation” (at [1262] of the Bundle).

[197]The consequences of the meeting, his subsequent email and the experiences of the previous few months led Mr Grisdale to decide, on or around 22 October 2021, to bring forward the termination of the TR to 30 November 2021 and place the Claimant on garden leave in the interim. Mr Grisdale set out his reasoning in his witness statement (at Paragraph 90): I was concerned that the Claimant would spend the remaining three months of his temporary redeployment not contributing to the programme or carrying out his day-to-day responsibilities, as he was hired to do. While he was entitled to contribute ideas about how [the Respondent] could manage its transformation programme, he was still expected to perform his role (even if he disagreed with the approach [the Respondent] was taking). As I had learnt from Charlie [Tauszky] and her colleagues, the Claimant had not been performing for a number of months, and my meeting with him on 20 October 2021 (in which he “confirmed that he challenges what SCC is delivering”…), did not persuade me that he had any intention of meaningfully engaging with the responsibilities of his role and performing the tasks needed to progress the project. For these reasons, I made the decision on or around 22 October 2021 to terminate the Claimant’s temporary redeployment early (namely, for it to end on 30 November 2021 instead of 31 December 2021) and place him on garden leave…

[198]Prior to being notified that the TR was being ended early (but after the decision to end early had been made), the Claimant sent another email to senior management on 26 October 2021. In it the Claimant posed a number of questions.

[199]The email of 26 October 2021 was the tenth alleged protected disclosure (‘PD10’).

[200]In response, on 27 October 2021, Mr Grisdale asked Mr Gordon (Global Head of Risk Transformation) to provide a short response, as, in Mr Grisdale’s view, the questions related to data reporting (at [1325] of the Bundle and Paragraph 91 of Mr Grisdale’s witness statement). The answers to the questions posed by the Claimant were provided to him by Mr Grisdale later on 27 October 2021 (at [1344] – [1347], which was, in effect, a copy of the Claimant’s email of 26 October 2021, with the answers added directly below each question).

[201]The Claimant responded to Mr Grisdale on 28 October 2021 (at [1343] – [1344] of the Bundle). In his response, the Claimant referred to BCBS 239 and alleged that “our representations to the PRA [Prudential Regulatory Authority] have been materially misleading.”

[202]This was the eleventh, and final, alleged protected disclosure (‘PD11’). Case Number: 3207297/2021 - 37 -

[203]The decision to ended the TR early was communicated to the Claimant by email on 1 November 2021 (at [1421] of the Bundle). In it, Mr Grisdale set out his reasons, which included the following ((variously at [1421] – [1422]): … in the round I do not feel the communication is either professional or respectful… Having further considered matters and carefully reflected on where we find ourselves I would again reiterate that the organisation has listened to you and considered your challenges. I do understand your disappointment that we have not been able to agree with you and regrettably it is very evident you have no belief in any component of our programme of works, or the management running the same…

[204]Mr Grisdale informed the Claimant that he was being placed on garden leave and that the TR would be ending on 30 November 2021. The Claimant was also told that all future communications should be with HR and it was agreed to pay him an additional months’ pay in addition his enhanced redundancy payment (at [1422] of the Bundle).

[205]By a letter also dated 1 November 2021, My Yates reinstated the Claimant’s notice period, as required by and consistent with the terms of the TR (at [140] of the Bundle). That letter reiterated the availability of the Redeployment Talent Pool, where the Claimant could find out about internal vacancies.

[206]On 2 November 2021, the Claimant commenced ACAS Early Conciliation. On 3 November 2021, the Claimant replied to Mr Grisdale’s email of 1 November 2021 and notified him that he had commenced Early Conciliation (at [1436] of the Bundle).

[207]On 4 November 2021, Ms Willmore met with Mr Penney to understand why the TR was not being extended (a note of the meeting was at [1440] – [1441] of the Bundle). Mr Penney explained the concerns which had arisen regarding the Claimant’s performance and attitude toward the tasks allocated to him. He also detailed the Claimant’s disagreements with the work being undertaken and the direction being followed and the access he was given to senior executives. In conclusion, the decision on extending TRs was “[R]anked on capability and [the Claimant] came bottom due to failure to complete tasks he was given.”

[208]It was noteworthy that, despite the TR not being extended, the Respondent’s HR function still wanted to understand the reasons why. This was part of Ms Willmore’s investigation into the complaint raised by the Claimant on 8 October 2021. Again, notwithstanding the decision to not only not extend the TR but to bring it to a premature end, the Respondent was still actively investigating the Claimant’s concerns. Case Number: 3207297/2021 - 38 -

[209]The scope of Ms Willmore’s investigations into the complaint of 8 October 2021 were set out in detail in her witness statement (at Paragraphs 15 – 30).

[210]As part of the process, Ms Willmore met with Mr Penney, Mr Bagirathan and Mr Grisdale on 25 November 2021 (per her email at [1513] – [1515] of the Bundle). Those discussions again focussed on the Claimant’s performance issues and specifically his failure to complete the work and tasks assigned to him. It was agreed to (yet again) assist the Claimant with finding another role (whether with the Respondent or elsewhere) by keeping his TR end date as 31 December 2021 (at [1515]).

[211]Later on 25 November 2021, Ms Willmore emailed the Claimant and informed him that his allegation that the TR was not being extended was an act of retaliation had not been upheld (at [1520] – 1521] of the Bundle). Rather, the reasons it had not been extended “included performance in role, engagement in role and cost.” Although the email did not inform the Claimant that the TR would in fact continue until 31 December 2021 (albeit on garden leave), it was not in dispute that the Claimant was paid in lieu of wages until 31 December 2021 and the applicable HR records cited the employment termination date as 31 December 2021 (at [436]).

[212]Whilst Ms Willmore was undertaking her investigation, on 20 November 2021, the Claimant presented his claim to the Tribunal (at [1] – [14] of the Bundle).

[213]On 2 December 2021, the Claimant emailed a whole host of senior managers (including Mr Grisdale, Mr Penney, Mr Hudson, Ms Tauszky, Ms Kaur, Mr Yates and Mr Tai), alleging that his dismissal was unlawful and demanding his immediate reinstatement and the provision of certain documents (at [1531] of the Bundle). Mr Grisdale responded later the same day, as follows (at [1552]): Thank you for your email of 2 December 2021. Dealing with the points you raise in order:- 1. We have previously confirmed that we have brought your temporary working assignment to an end, subject to a period on garden leave, and this position has not changed. 2. As I stated in my email to you of 1st November 'the organisation has listened to you and considered your challenges but we do not agree with you and regrettably it is very evident you have no belief in any component of our programme of works, or the management running the same'. 3. & 4. If you wish to access personal documents, please raise a Data Subject Access Request by emailing GDPR.RightsUK@hsbc.com

[214]On 13 December 2021, the Claimant sent another email to the BoE, which he copied to Mr Grisdale, Mr Tai, Mr Tucker, Ms Kaur, Mr Penney and Ms Wilmore (at [1550] – [1551] of the Bundle). It contained a number Case Number: 3207297/2021 - 39 - of allegations and assertions about the Respondent’s ability to comply with its regulatory obligations. The Claimant did not rely on this email as one of his alleged protected disclosures.

[215]The Claimant was paid in lieu of wages up to 31 December 2021 (per [22] of the Remedey Bundle). In addition, on 20 January 2022, the Respondent paid the Claimant a statutory redundancy payment (calculated on the basis of the applicable capped weekly wage of £544 and a multiplier of three) and the balance of his holiday pay entitlement (at [24] of the Remedy Bundle). Analysis & Discussion

[216]Having made our findings of fact, the Tribunal went on to determine the issues contained within the List of Issues (at Appendix 3). Protected Disclosures

[217]The Claimant alleged that he made 12 protected disclosures (accounting for the additional amendment of PD7A).

[218]In general terms, what the Claimant was sharing (and sharing repeatedly) were his opinions, assertions and conjecture. We considered each disclosure in turn (as they occurred chronologically, as opposed to numerically). PD1 – the email of 14 July 2021 (at [672] – [676] of the Bundle).

[219]In his Further Information document (provided on or around 6 February 2022, in the course of the litigation), the Claimant detailed what he alleged to be protected disclosures within this email and attachment (at [22] – [23] of the Bundle). In our judgment, neither the email nor the attachment disclosed any information. Rather, the Claimant was sharing his opinions and criticism of what he believed the Respondent was doing, saying why he thought what was being done was the wrong approach and sharing his thoughts on what believed the Respondent should be doing instead.

[220]The Claimant was making a number of allegations but did not provide sufficient information at that time to support those allegations. In addition, the Claimant made numerous assertions without ever providing information to support his conclusions.

[221]In essence, the Claimant was presenting his generalised views and opinions. At most, they were criticisms of plans that were being proposed or were already in place. For those reasons, we concluded that there was not a disclosure of information, to the extent required for protection.

[222]In addition, the email and the presentation also failed to show or explain how or why the regulatory obligations (whether by virtue of the BCBS standards or otherwise) created any legal obligation on the Respondent. Case Number: 3207297/2021 - 40 - They did not, therefore, tend to show any breach by the Respondent (whether actual or anticipatory) of a legal obligation to which it was subject. PD2 – the email of 15 July 2021 (at [716] – [718] of the Bundle)

[223]The Claimant sent the same presentation and comments to a different audience. In his Further Information document, the Claimant detailed what he alleged to be protected disclosures within this email and attachment (at [24] of the Bundle). On his own case, the Claimant was highlighting “key issues and challenges and proposed solutions” and claimed to have developed “the initial headline idea into details of issues and prescriptive and well researched recommendations”.

[224]Again, we concluded that the email and presentation did not contain disclosures of information. They were, to borrow the Claimant’s own descriptors, ideas, issues, challenges, solutions and recommendations. They also again failed to identify how or why any legal obligations to which the Respondent was subject had been (or were about to be) breached. PD3 – the meeting of 16 July 2021 (at [744] – [748] of the Bundle)

[225]On 16 July 2021, the Claimant met with Mr Grisdale, Ms Kaur and others and walked them though his presentation. In his Further Information document, the Claimant detailed what he alleged to be protected disclosures from within the notes of that meeting (at [24] of the Bundle).

[226]Again, the Claimant was sharing his views and opinions (in this case, as to where credit data integrity ownership should reside and as to the Respondent’s credit policy). There were, in our judgment, no disclosures of information sufficient to meet the threshold for protection. PD4 – the email of 9 August 2021 (at [898] of the Bundle)

[227]This was the Claimant’s email to Mr Grisdale, in response to the request for more prescription on the headline issues and challenges alluded to in the Claimant’s presentation. The Claimant complained in this email that he was being asked to be more prescriptive but not being giving the resources or time to provide the required level of detail.

[228]Once more, the Claimant was setting out his views and opinions, this time on what he considered to be the Respondent’s flawed understanding of regulatory guidance on credit risk management and erroneous approach to credit risk systems and portfolio data management. He did not cite detail nor give examples of where these alleged flaws and errors had either occurred or, more importantly, how they placed the Respondent in breach of any of its legal obligations. They were not disclosures of information. Case Number: 3207297/2021 - 41 -

[229]Similarly, the email also failed to show or explain how or why the “regulatory guidance and practitioner and market best practice” created any legal obligation on the Respondent. They did not, therefore, tend to show any breach by the Respondent (whether actual or anticipatory) of a legal obligation to which it was subject. PD5 – the presentations of 7 September 2021 (at [954] – [972] of the Bundle) & 20 September 2021 (at [1004] – [1014]) and the meeting of 22 September 2021 (at [1015] – [1017])

[230]In his Further Information document, the Claimant detailed what he alleged to be protected disclosures from within the presentations and the meeting (at [24] – [25] of the Bundle). This was the only alleged protected disclosure which the Claimant said also tended to show the commission of a criminal offence (per Paragraph 7.d. of the Further Information document).

[231]Despite that, the presentations, the note of the meeting and the Further information document continued to refer, at their highest, to regulatory breaches (and specifically BCBS 239). There was no further explanation or detail as to what the purported criminal offences were that the Claimant reasonably believed were being committed (or about to be committed), either at the time of the presentations or when he compiled his Further Information document in or around February 2022.

[232]The presentations and the note of the meeting also followed a similar pattern, of the Claimant sharing his views and opinions on how the Respondent managed risk. Once again, there were allegations by the Claimant which lacked the detail and specificity to constitute disclosures of information entitled to protection.

[233]The presentations and note of the meeting also failed to show or explain how or why the Respondent’s “poor understanding and material noncompliance with essential regulatory requirements” (per Paragraph 7.a. of the Further Information document at [25] of the Bundle) created any legal obligation on the Respondent. They did not, therefore, tend to show any breach by the Respondent (whether actual or anticipatory) of a legal obligation to which it was subject. PD7 – the email of 4 October 2021to the BoE (at [1132] – [1133] of the Bundle)

[234]In his email on 4 October 2021, the Claimant informed the BoE that he “sincerely believe that we are getting the credit risk and data risk transformation very wrong and at considerable cost in time and resources… there is the risk of institutionalizing conflict-of-interest because some key initiatives on credit policy and risk data are being led by the first line - this is contrary to OCC [Office for the Comptroller of Currency], BIS & PRA guidelines..”

[235]In our judgment, the email to the BoE did not contain any disclosures of information. As he had done before, the Claimant alleged that the Case Number: 3207297/2021 - 42 - Respondent had breached regulatory requirements and principles without providing sufficient information which enabled him to reasonably believe that what he was sharing with the BoE tended to show such breaches.

[236]In addition, neither the email nor any further evidence relied upon by the Claimant showed or explained how or why the “OCC, BIS & PRA guidelines” created any legal obligation on the Respondent. They did not, therefore, tend to show any breach by the Respondent (whether actual or anticipatory) of a legal obligation to which it was subject nor could the Claimant have reasonably believed that they did. PD6 – the meeting with Jackson Tai of 4 October 2021

[237]The Claimant used the same slides in his meeting with Mr Tai as he had during his meeting on 22 September 2021 (per PD5, above). Whilst there were no minutes of the meeting with Mr Tai, the Claimant recorded in his Further Information document that he “took Mr. Tai through my presentation decks dated 7th Sep 21 and 20th Sep 21” (at Paragraph 8.a., at [25] of the Bundle).

[238]We reached the same conclusions about PD6 as we had about PD5 and repeat our reasoning. The change of audience did not change the nature or content of the allegations being made by the Claimant and, more importantly, did not transform them into protected disclosures. PD7A – the email of 10 October 2021 to the BoE (at [1126] – [1128] of the Bundle)

[239]As reflected in our findings of fact, the Claimant was informed on 8 October 2021 that the TR was not being extended. It followed that the alleged protected disclosures made after that date could not have had any bearing on the decision to not to extend the TR.

[240]The first of those post-8 October alleged protected disclosures was the Claimant’s further email to the BoE on 10 October 2021 (which he also sent to FSA on 12 October 2021, at [1025] of the Bundle).

[241]In his email to the BoE on 10 October 2021, the Claimant alleged that the Respondent was not following BIS (Bank for International Standards) principles, which allegedly resulted in its risk calculations (including its Risk Weighted Assets and Capital Adequacy Calculations) being “approximations at best and cannot be relied upon.” The Claimant also criticised the Respondent’s transformation plans.

[242]In our judgment, the email to the BoE did not contain any disclosures of information. The Claimant again made allegations that the Respondent had breached regulatory requirements and principles without providing sufficient information which enabled him to reasonably believe that what he was sharing with the BoE tended to show such breaches. Case Number: 3207297/2021 - 43 -

[243]Similarly, the presentations the Claimant sent (and which, for the reasons set out above, we found did not contain any disclosures of information) did not change their status simply because they were sent to a different audience.

[244]In effect, the Claimant levelled allegations at the Respondent of failing to follow BIS principles and went on to suggest what he believed were the consequences of those failings. What the Claimant did not do was explain, by reference to sufficient detail or information, how those principles were being breached.

[245]Further, at most, the Claimant was alleging breaches of BIS principles. Neither his email or the attached presentations demonstrated or explained how or why the BIS principles created any legal obligations on the Respondent. The email and attachments did not, therefore, tend to show any breach by the Respondent (whether actual or anticipatory) of a legal obligation to which it was subject (and by extension, the Claimant could not have reasonably believed that they did). PD8 – the email of 16 October 2021 (at [1153] – [1156] of the Bundle)

[246]The Claimant emailed various senior managers and executives on 16 October 2021, asking the Respondent’s transformation committee to rethink its credit transformation pathway. The Claimant set out his thoughts on why a change of approach was needed. He concluded the email by asking for “an opportunity of collective brainstorming on the way forward” (at [1159] of the Bundle).

[247]16 October 2021 was a Saturday. As recorded above, a number of the email’s recipients communicated with each other across the weekend, which culminated in Mr Hershey’s response to the Claimant on 17 October 2021, wherein he explained again why the Respondent did not agree with the Claimant’s thoughts and would be continuing with its transformation of the wholesale credit system as planned (at [1172] – [1173] of the Bundle).

[248]In our judgment, this was another example of the Claimant sharing his own views and opinions, which were considered but not accepted by the Respondent. It was not a disclosure of information nor did it contain any evidence that the Claimant reasonably believed that the Respondent was breaching a legal duty. At most, the Claimant was articulating an contrary view, not making a disclosure of information. PD9 – the email of 17 October 2021 (at [1169] – [1170] of the Bundle)

[249]This email was the Claimant’s response to Mr Hershey, copied to the same senior managers. As noted above, the Claimant again registered his disagreement, before outlining two options for how the Respondent could deal with his proposals and opinions. Case Number: 3207297/2021 - 44 -

[250]The Tribunal again concluded that there was no disclosure of information by the Claimant. The contents of the email were simply the Claimant’s opinions and did not or could not have led him to reasonably believe that there was any breach by the Respondent of any of its legal duties.

[251]For those reasons, PD9 was, like its predecessors, not a protected disclosure. PD10 – the email of 26 October 2021 (at [1325] – [1327] of the Bundle)

[252]In his email of 26 October 2021 to senior managers, the Claimant did not disclose any information. Rather, he posed a number of questions, to which (as detailed above) answers were provided (all of which were in the affirmative).

[253]Whilst the questions posed made reference to BIS and BCBS 239, the Claimant did not explain with sufficient detail or information how, if at all, those principles were being breached. Further, his email did not demonstrate or explain how or why the BIS and BCBS 239 principles created any legal obligations on the Respondent.

[254]The email did not, therefore, tend to show any breach by the Respondent (whether actual or anticipatory) of a legal obligation to which it was subject (and by extension, the Claimant could not have reasonably believed that they did). PD11 – the email of 28 October 2021 (at [1343] – [1344] of the Bundle)

[255]The final alleged protected disclosure was the Claimant’s response of 28 October 2021, following receipt of the answers to the questions he had posed on 26 October 2021.

[256]The Claimant alleged that “BCBS 239 is the heart of the matter of our discussions…and we are nowhere near structural compliance” and “[O]ur representations to PRA would have been materially misleading” (at [1344] of the Bundle).

[257]However, as with other alleged protected disclosures, the Claimant provided no disclosures of information to support his allegations. At most, he again shared the views and opinions which he had shared at various times, in various forms and with various senior managers and executives, over the preceding months. Those views and opinions had been engaged with by the Respondent and rejected. The Respondent’s views and opinions were contrary to the Claimant’s. There was and there always had been a difference of opinion. What there was not, in our judgment, was any disclosure of information by the Claimant that tended to show that the Respondent was in breach of a legal duty or committing a criminal offence. Conclusions: Protected Disclosures Case Number: 3207297/2021 - 45 -

[258]In our judgment and for the reasons set out above, none of the alleged disclosures met the requirements to be protected. Each of them failed to meet the minimum requirements in order to engage protection. There was either no disclosure of information or no tendency to show an actual or anticipatory breach of a legal duty or commission of a criminal offence. Quite often, both requirements were absent.

[259]The Claimant clearly had his own thoughts, ideas and opinions on how the Respondent managed wholesale credit risk and the direction of its the Risk 2025 programme. He shared those with his own managers and when they asked him for more details of what he disagreed about and why (the request for prescription), he escalated the same ideas, views and opinions to increasingly senior managers and executives and then on to the Bank of England.

[260]The Respondent engaged with the Claimant initially to try and understand his thoughts, then to explain and reassure the Claimant on his concerns and latterly, to explain why they did not agree with him. Whatever the Claimant’s thoughts might have been on the Respondent and its approach to risk, they were just that – his thoughts and opinions. They lacked the requisite factual content or detail to render them disclosures of information.

[261]In addition, the Claimant consistently cited regulatory principles and guidelines and referred to market best practice. At no point in any of the alleged protected disclosures did the Claimant raise (either directly or by inference) any legal duties or criminal offences nor suggest that such legal duties or criminal offences were being breached or committed (or about to be breached or committed).

[262]However, in the course of this litigation, the Claimant set out what he believed the criminal and legal offences were.

[263]At paragraph 2.1(a) of the List of Issues (at Appendix 3), the Claimant alleged that the Respondent had made material misrepresentations to the Bank of England because of its failure to comply with BCBS 239 and BCBS 294. He submitted in the List of Issues that such non-compliance and misrepresentations were criminal offences, as were the consequential risk to the Respondent’s depositors and the wider global financial markets. However, and for the reasons detailed above, these allegations were not supported by either sufficient factual information or an explanation of what the criminal offences were or how the Respondent’s alleged actions had resulted in their commission.

[264]The Claimant also believed that, by allegedly being non-compliant with BCBS 239 294, the Respondent was in breach of legal obligations (per Paragraph 2.1(b) of the List of Issues, at Appendix 3). However, and as with the alleged criminal offences, these allegations were not supported by sufficient factual information, there was no explanation of what the legal obligations were which it was alleged the Respondent was in Case Number: 3207297/2021 - 46 - breach of and no detail or explanation as to how the Respondent’s action were in breach (or would be in breach) of the said legal obligations.

[265]It was not enough that the Claimant believed that not adhering to the BIS guidelines and principles amounted to a breach of a legal obligation. There must be some identifiable source of the legal obligation it is claimed the Respondent was subject to and breached. The Claimant provided no such source, either at the time or in the course of this litigation. Without identifying the legal obligation, it is difficult, if not impossible, to conclude that any belief the Claimant had that the Respondent was in breach of its legal obligations was reasonably held.

[266]Even in respect of the regulatory guidelines and principles which were referred to (notably the BIS principles, BCBS 239 and BCBS 294), the Claimant was making assertions that the Respondent was in breach of those principles without providing sufficient detail or information as to how or why they were.

[267]The Claimant’s case was that he was dismissed for making protected disclosures. We set out our conclusions on his dismissal below. The Claimant did not expressly pursue a complaint of detriment other than dismissal. However, and for the sake of completeness, the evidence in fact showed the opposite. Rather than treating the Claimant detrimentally for sharing his views and opinions, the Respondent, at every level of management, listened to the Claimant and afforded him a platform. They gave him their time and they facilitated his access to increasingly senior levels of the Respondent’s executive. In many ways, the Respondent went above and beyond what would be expected of a reasonable employer in accommodating the Claimant. Ultimately, the Respondent disagreed with the Claimant’s thoughts and opinions, a conclusion which they were reasonably entitled to and which was open to them on the basis of what the Claimant was sharing with them. There was no detriment, just a difference of opinion.

[268]For those reasons, the Claimant did not make any protected disclosures. Unfair Dismissal The Reason for Dismissal

[269]The Respondent said that the principle reason for the Claimant’s dismissal was redundancy, with his notice of termination temporarily suspended by reason of the TR.

[270]In contrast, the Claimant said that: 270.1. His role as Head of Financial Risk Management, within the GTRF was made redundant at the direction of Adrian Rigby and was an act of race discrimination; and Case Number: 3207297/2021 - 47 - 270.2. The TR was ended (or not extended) because he had made protected disclosures.

[271]In our judgment, the Claimant was dismissed by reason of redundancy. We reached that conclusion for the following reasons: 271.1. There was a genuine redundancy situation at large within the Respondent toward the end of 2019. The decision to make redundancies was not limited to the Claimant’s post but extended to thousands of employees being at risk. 271.2. There was evidence of discussions, planning and decisions being taken from early 2020 to identify the roles and employees at risk of redundancy (which included the Claimant). 271.3. The Respondent engaged in a standard redundancy process from August 2020, notifying the Claimant that his role was at risk of redundancy, considering pools for selection and holding consultation meetings 271.4. At the meeting with Mr Yates on 1 October 2020 and in the letter of the same date, the reason given for the decision to terminate the Claimant’s role in December 2020 was redundancy. 271.5. The terms and conditions of the TR of 10 December 2020 reiterated that the Claimant’s role was being made redundant and that a consequence of the TR was that the notice of redundancy would be temporarily suspend. 271.6. In his final pay on 20 January 2022, the Respondent paid the Claimant a statutory redundancy payment.

[272]We went on to consider two factors which were also relevant to the operative reason for the Claimant’s dismissal – the provisions of section 138 of the ERA 1996 and the TR.

[273]As recited above, the effect of section 138 of the ERA 1996 is that if an employee is re-engaged under a new contact or the contract at risk of redundancy is renewed before the redundancy takes effect (that is, before the end of the employment which is subject to the redundancy), there is no dismissal by reason of redundancy (per section 138(1)). However, the provisions of section 138(1) do not apply if the terms and conditions (including as to capacity and location of the employment) of the new or renewed contract “differs (in whole or part) from the corresponding provisions of the previous contract” (per section 138(2)(a) of the ERA 1996).

[274]We were not addressed by either party on section 138 of the ERA 1996. However, mindful that the Claimant was acting without legal representation and as we had ourselves discussed the provision in our deliberations, we set out our conclusions. Case Number: 3207297/2021 - 48 -

[275]In short, we found that section 138(1) of the ERA 1996 did not apply in this case because the terms and conditions of the TR differed in part from the terms and conditions of the Claimant’s previous contract of employment. Most notably, the Claimant’s role and responsibilities were different, with the attendant changes to the department and structure within which he performed that role.

[276]It followed that the parties entering in the TR did not, in itself, prevent the Claimant’s employment being ended by reason of redundancy.

[277]We next considered what the impact of the TR and its subsequent termination had on the operative reason for the Claimant’s employment with the Respondent coming to an end. In other words, was it necessary to treat the TR as a new period of employment and determine the reason for it ending when it did as the cause of the Claimant’s dismissal?

[278]As recited earlier, the Respondent’s Redeployment and Redundancy Policy specifically catered for the situation where a temporary redeployment opportunity arose, what it termed “short-term assignments” (at [78] of the Bundle). Those arose where “an employee agrees to go on a secondment in another business area for a period not exceeding 12 months”, which is precisely what the Claimant did when he agreed to the TR. As the policy made clear, the effect of such an assignment was to defer the redundancy notice period “so that it finishes at the same time as the expiry of your secondment assignment”.

[279]The letter of 10 December 2020 (at [105] of the Bundle) set out the terms and conditions of the TR. Giving those terms and conditions their ordinary and natural meaning, we found that this was a case where the parties had agreed to defer the termination of the Claimant’s employment by reason of redundancy until 31 December 2021, at the latest. The notice period which had begun in 2020 was suspended and provision was made for either party to lift the suspension and trigger the remaining notice period (of 18 days).

[280]The terms and conditions of the TR contained certainty as to when the redundancy dismissal would take effect. It would either be on 31 December 2021 or 18 days after one of the parties triggered the resumption of the notice period, whichever was the earlier of the two.

[281]It was clear that both the Respondent and the Claimant continued to treat the Claimant as dismissed by reason of redundancy, both from the terms of the TR and the payment of the statutory redundancy payment in January 2022 (per [24] of the Remedy Bundle).

[282]The understanding that the Claimant’s redundancy had been deferred until 31 December 2021 was also reflected in other communications which occurred at the relevant time: Case Number: 3207297/2021 - 49 - 282.1. When the Claimant made enquiries about switching roles on 10 February 2021, the response from the Respondent’s Resourcing & Onboarding team included reference to the Claimant having “already agreed to do another until the end of the year which at the time resulted in your redundancy being paused by taking up that opportunity” (at [250] of the Bundle, emphasis added); 282.2. On 12 October 2021, HR advised Mr Yates on the process to end the TR, which was wholly consistent with the provisions in the TR for re-starting the redundancy notice period (at [1052] – [19053] of the Bundle). 282.3. The letter of 1 November 2021 was titled “Notice Reinstatement Letter” and was similarly consistent with the terms of the TR (at [140] – 141] of the Bundle).

[283]The terms of the TR and how they operated in practice were also wholly consistent with the concept of a “short-term assignment”, per the Redeployment and Redundancy Policy.

[284]For those reasons, we concluded that the decision in October 2021 (and confirmed by the letter of 1 November 2021) was to restart notice period under TR. It did not change operative reason for dismissal, which was redundancy. The TR and decision to restart the remaining notice period simply set the effective date of termination of employment, not the reason for the termination of the Claimant’s employment.

[285]By way of analogy, if the Claimant had triggered the notice period (or if he had remained in post under the TR until it expired on 31 December 2021), he would have still been entitled to be paid a redundancy payment, consistent with the dismissal being by reason of redundancy.

[286]For those reasons, we found that the reason for the Claimant’s dismissal was redundancy. The actual dismissal was deferred until 31 December 2021 (or earlier, by way of the mechanism contained within the TR).

[287]It follows that the reason for ending the TR was not strictly relevant or material. The TR permitted either party to bring forward the effective date of termination of employment from the agreed termination date of 31 December 2021. That was what the Respondent did but it was equally open to the Claimant to do the same (if, for example, he had a secured another job).

[288]Given the Tribunal’s findings that the Claimant did not make any protected disclosures, self-evidently they can have played no part in any of the Respondent’s decisions regarding the Claimant’s employment. In addition, the events and actions relied upon by the Claimant as protected disclosures did not inform the Respondent’s decision not to extend the TR or to end the TR prematurely. Case Number: 3207297/2021 - 50 -

[289]If we were required to identify a reason or reasons for the Respondent’s decision to bring the TR to an end, it was perhaps most clearly set out in Ms Willmore’s email of 25 November 2021, following her investigation into the reasons why the TR was being terminated (at [1514] of the Bundle). Those reasons, which all related to the Claimant’s performance, were also consistently raised, discussed and recorded throughout almost the entire duration of the TR (and as detailed in our findings of fact).

[290]For the sake of completeness, and in any event, even if the Claimant had made protected disclosures, the reasons for ending the TR included his conduct and behaviour (which encompassed the manner in which he pursued his alleged protected disclosures). The Fairness of the Dismissal

[291]What was clear from the chronology of the case was that when the Claimant went through the redundancy process in 2020, he had not been continually employed for a period of two years. As such, at that time, he had yet to acquire protection against unfair dismissal (per section 108 of the ERA 1996). However, by the time of the decision to end the TR, he had been continuously employed for over two years.

[292]The Respondent did not dispute that by the time the Claimant’s employment ended, he had become entitled to protection against unfair dismissal. As such, it was for the Respondent to prove the reason for dismissal, which, as detailed above, it did and that reason was potentially fair (namely, redundancy).

[293]In deciding whether the decision to dismiss the Claimant by reason of redundancy was fair, we focussed on the events and the processes adopted in 2020, which culminated with the decision of 1 October 2020 to make the Claimant’s role redundant. For the reasons set out above, the decision to end the TR was not the reason for the Claimant’s dismissal. It was the reason for when that decision to dismiss took effect.

[294]As set out in our findings of fact, the decision to make the Claimant’s role redundant was made by Mr Yates and it was his own decision. Contrary to the allegations by the Claimant, Mr Rigby did not decide the make the Claimant redundant, played no part in the decision to make the Claimant redundant and did not influence the decision to make the Claimant redundant.

[295]As set out in our findings of fact: 295.1. There was a genuine redundancy situation. 295.2. The Respondent warned the Claimant that his role was at risk and then undertook a fair and proper consultation with him. Case Number: 3207297/2021 - 51 - 295.3. The Respondent adopted a fair, reasoned and cogent basis for selecting his role for redundancy (including the decision to place him in a pool of one). 295.4. The Respondent actively explored and considered redeployment.

[296]The Claimant was not explicitly informed in the letter of 1 October 2020 of his right of appeal against the decision to make his role redundant. However, both the Redeployment and Redundancy Policy and the Security of Employment Policy provided a right of appeal and details of how to appeal (and it was not suggested that both policies, which were available on the Respondent’s HRDirect service, were not available to the Claimant).

[297]As we have found, on 13 August 2020, the Claimant was informed that he was at risk of redundancy. On 16 August 2020, before the first consultation meeting, the Claimant raised a compliant against the decision to out him at risk via HSBC Confidential. That complaint was accepted and investigated by the Respondent. The only reason the process did not reach a final conclusion was the Claimant’s decision to withdraw the complaint when he took up the TR (and even then, there was an investigation report dated 15 February 2021, based upon the information obtained up to the withdrawal of the complaint, at [262] – [274] of the Bundle, which concluded that the decision to make his role redundant was justified).

[298]In the context of looking at the fairness of the redundancy process in the round, it was reasonable to consider the compliant as a de facto appeals process, since it afforded the Claimant the opportunity to challenge the decision to, initially, place him at risk of redundancy. It was reasonable to conclude that, but for the TR, the complaint would have continued and would have encompassed the decision to make the Claimant’s role redundant.

[299]If the Claimant had been explicitly informed of his right of appeal in the decision letter of 1 October 2020 and had he exercised that right of appeal, it was also reasonable to conclude that he would have acted in a similar manner when he accepted the TR, namely he would have withdrawn any appeal (or, in the alterative, any appeal would have resulted in the same conclusion and outcome as the compliant investigation report of 15 February 2021).

[300]Ms San Gupta also referred the Tribunal to the decision in Gwynedd Council v Barratt

[2021] IRLR 1028

, CA, wherein Bean LJ held as follows (at [38], emphasis retained): I agree with the proposition that in redundancy cases the absence of any appeal or review procedure does not of itself make the dismissal unfair – that is to say, if the original selection for redundancy was in accordance with a fair procedure the absence of an appeal is not fatal to the employer’s defence…it would be wrong to find a dismissal unfair only because of the failure to provide Case Number: 3207297/2021 - 52 - the employee with an appeal hearing…the absence of an appeal is one of the many factors to be considered in determining fairness.

[301]Having regard to all those factors, we found that, to the extent that the Claimant was denied any explicit invitation to appeal against the decision to make his role redundant, he was not deprived of a right of challenge (because of the availability and nature of the complaints process), he was not placed at any material disadvantage (for the same reason) and any failure to notify him of his right of appeal in the decision letter of 1 October 2020 did not render the redundancy processes followed by the Respondent unfair. Conclusions: Unfair Dismissal

[302]For all those reasons, we concluded that: 302.1. The reason for the Claimant’s dismissal was redundancy; 302.2. There was a genuine redundancy situation; 302.3. The Respondent followed a fair procedure in making the Claimant’s role redundant; and 302.4. The events of October and November 2021 were about when the decision to terminate by reason of redundancy took effect.

[303]On that basis, the Claimant’s dismissal was not unfair and the complaint of unfair dismissal is dismissed. Discrimination on grounds of race

[304]The Claimant contended that there were two acts of direct race discrimination, namely: 304.1. The decision to select him for redundancy on 13 August 2020; and 304.2. The decision to terminate his employment with effect from 30 November 2021.

[305]We repeat our findings and analysis regarding the chronology and decision to make the Claimant’s role redundant, namely: 305.1. There was a genuine redundancy situation. 305.2. The Respondent warned the Claimant that his role was at risk and then undertook a fair and proper consultation with him. 305.3. The Respondent adopted a fair, reasoned and cogent basis for selecting his role for redundancy (including the decision to place him in a pool of one). Case Number: 3207297/2021 - 53 - 305.4. The Respondent actively explored and considered redeployment. 305.5. The reason for dismissing the Claimant from his role as Head of Financial Risk Management was because of redundancy.

[306]There was no evidence whatsoever that the Claimant was selected for redundancy, pooled or made redundant because of his race. There was nothing in the evidence which came close to shifting the burden to the Respondent. Not one of the decisions taken or steps followed by the Respondent were in any way informed, influenced or dictated by the Claimant’s race, conscious or otherwise.

[307]The reasons for the Respondent’s actions were clear – it was faced with circumstances which required it to make many thousands of posts redundant and the Claimant’s fell within that category. Thereafter, it followed a fair and proper process before a decision was made to make his role redundant.

[308]In reality, any suggestion that the decision to place the Claimant at risk of redundancy and the process and decisions that followed thereafter, were because of his race were nothing more than the beliefs and assertions of the Claimant. As with his belief and assertion that Mr Rigby was the decision maker, he was mistaken.

[309]The Tribunal reached similarly clear and compelling conclusions regarding the allegations that race played any role in the decision to terminate the TR early. As out findings of fact show, the Respondent, with good reason, concluded that the Claimant was not performing the tasks asked of him, was refusing to follow reasonable management instructions (whether pertaining to those tasks or regarding who he should be communicating his ideas with) and was at times rude and unprofessional towards other employees.

[310]The Claimant himself was clearly not happy in the TR, enquiring about a role change as early as 10 February 2021. He struggled to work effectively with colleagues (most notably Mr Soppitt , Mr Bagirathan and Mr Grisdale) and clashed with others with whom he had only minimal contact (notably, Mr Mubashar).

[311]Indeed, the Claimant’s approach to his work during the TR caused such concern that as early as June 2021, there were active discussions at management level about whether to let him go. Despite affording the Claimant numerous chances, despite changing his role and despite indulging his ideas and suggestions, the Claimant’s conduct and behaviour did not, in the Respondent’s opinion, improve. That was the reason for not extending the TR beyond 31 December 2021 (a decision which had been discussed for some time and was categorically decided upon by Mr Penney by the end of September 2021) and that was the reason for thereafter ending the TR with effect from 30 November 2021 (made by Mr Grisdale in light of the Claimant’s continued behaviour during the first three weeks of October 2021). Case Number: 3207297/2021 - 54 -

[312]The reasons behind the Respondent’s decisions regarding the TR were clear and extensively supported by the evidence. Those reasons had nothing to do with the Claimant’s race and everything to do with his conduct and his behaviour. As with the redundancy, there was no evidence whatsoever that the TR was ended because of the Claimant’s race. There was nothing in the evidence which came close to shifting the burden to the Respondent. None of the decisions taken by the Respondent were in any way informed, influenced or dictated by the Claimant’s race, conscious or otherwise. Conclusions: Race Discrimination

[313]The Claimant had to prove facts from which the Tribunal could infer that race discrimination has taken place in the decisions to make his role redundant and thereafter to end the TR. For the reasons set out above, the evidence did not come close to meeting that threshold and, as detailed in our findings of fact, the reasons for each of the decisions under scrutiny were clear, unambiguous and amply supported by the

evidence.

[314]In short, there was no evidence which was capable of supporting any finding from we which we could infer that either decision, in any way whatsoever, was related to the Claimant’s race.

[315]For those reasons, the decisions to make the Claimant’s role redundant and to end the TR were in no way because of the Claimant’s race. It follows that the complaints of direct race discrimination were not made out and are dismissed. Time limits

[316]By virtue of the EqA 2010, complaints of discrimination must be presented to the Tribunal within three months of the alleged act of discrimination occurring (subject to the effects of the ACAS Early Conciliation process which, if started within the three month time limit, serves to stop the clock for the duration of the Early Conciliation and/or extend the time limit by a month, if the three month time limit expires during Early Conciliation). Whether or not complaints have been brought in time goes to the Tribunal’s power to be able to consider and determine them, otherwise known as the Tribunal’s jurisdiction.

[317]So far as relevant, the Claimant began ACAS Early Conciliation on 2 November 2021 and it ended on 25 November 2021. He presented his claim to the Tribunal on 20 November 2021.

[318]As noted above, the complaints of race discrimination related to: 318.1. The decision to place the Claimant at risk of redundancy (a decision communicated to him on 18 August 2020 and which culminated in Case Number: 3207297/2021 - 55 - him being notified on 1 October 2020 that he would be made redundant with effect from 31 December 2020); and 318.2. The decision to end the TR early, which was communicated to the Claimant on 1 November 2021 and took effect on 30 November 2021.

[319]Even at its highest, the three month time limit for presenting his complaint of race discrimination regarding the redundancy began running on 31 December 2020 and expired at the end of March 2021. As such, that complaint was presented almost eight months after the expiry of the requisite time limit.

[320]In contrast, the three month time limit for presenting the complaint of race discrimination regarding the termination of the TR began running from 1 November 2021 at the earliest. That compliant was clearly presented within the requisite time limit.

[321]The redundancy race discrimination complaint can only be in time and importantly only be considered by Tribunal (as a matter jurisdiction) if either it is part of a continuing act of discrimination, the last act of which falls in time (in which case all complaints in the continuum are deemed to have been brought in time) or the Tribunal exercises its discretion under the EqA 2010 and extends time.

[322]To be a continuing act of race discrimination, the Claimant would need to show that the two allegations he relied upon were connected, that the decision to end the TR was a continuum of the decision to select him for redundancy. We had a number of difficulties with that, namely: 322.1. The decision to select the Claimant for redundancy and then make him redundant was made by Mr Yates. The decision to end his TR was made by Mr Grisdale. We were not presented with any evidence to suggest that they were in contact with each other or aware of each other’s decisions, still less in collusion in effectively following the same course and making decisions based upon the Claimant’s race; 322.2. There was a 12 month gap between the decision to make the Claimant’s post redundant and the decision to end the TR. That gap extends to 14 months if calculated from the decision to place the Claimant at risk of redundancy; 322.3. Taken at their highest, the complaints relate to different events and are disparate. Whilst they all pertain to the Claimant, the allegations are against different people, different processes and different events.

[323]Even if the decisions under scrutiny were acts of discrimination (which for numerous reasons, we have found that they were not), they were not Case Number: 3207297/2021 - 56 - a continuing act of discrimination, in the sense required to enable the decision to make the Claimant redundant to be treated as in time.

[324]Should the Tribunal extend time in respect of the race discrimination allegations which relate to the redundancy decision?

[325]The test is whether, in all the circumstances, the complaints were presented within such other period of time as the Tribunal thinks just and equitable (per section 123(1)(b) of the EqA 2010). That includes a consideration of why the complaints were brought out of time, how out of time they are, the merits of the complaints and the balance between the likely prejudice caused to each party of granting or refusing the application to extend time.

[326]The Claimant’s written submissions on the time limit issue were as follows (at Paragraph 25.d, emphasis retained): The events from my 1st sham redundancy (costing out) and the 2nd sham redundancy (final dismissal) were part of a chain of events over an extended period and therefore warrant extension of time and jurisdiction by ET over the entire chain of events.

[327]The Claimant did not advance any other basis for why the redundancy race discrimination complaint should be deemed to have been presented in time. Given our conclusion that the allegations pertaining to the redundancy and the ending of the TR were not capable of being continuing acts (due to the differences detailed above), we were left with no explanation from the Claimant for why the redundancy race discrimination compliant was presented out of time or what, if any, prejudice would be caused to him by not extending time.

[328]It was for the Claimant to show that it was just and equitable to extend time (in circumstances where a complaint is not brought in time by virtue of being part of an in-time continuing act). The Claimant failed to provide any reason, basis or evidence for why it would have been just and equitable to extend time.

[329]For those reasons, the redundancy race discrimination complaint was not part of a continuing act, was presented out of time and it was not just and equitable to extend time. It follows that Tribunal does not have jurisdiction to consider and determine the complaint.

[330]Notwithstanding that and as can be seen, we determined all the complaints before us and have dismissed them. It was important for the parties to know and understand our findings and conclusions on the complaints, including those over which, ultimately, we did not have jurisdiction. Discrimination is a serious allegation. We did not want the Claimant believing that his redundancy race discrimination complaint had failed on a technicality (that of being presented out of time). We did not want those accused of race discrimination to be left with any residual Case Number: 3207297/2021 - 57 - sense that they had not been fully exonerated of the allegations of discrimination.

[331]For those reasons in particular, we considered the redundancy race discrimination complaint and, as explained above, dismissed it.