Mr M Robson v British Airways Pension Services Ltd: 3303020/2023

EMPLOYMENT TRIBUNALS

Case No 3303020/2023

Between

Mr M RobsonClaimant

British Airways Pension Services LtdRespondent

Before

Employment Judge Anstis

In person for claimant

Mr M Humphreys (instructed by counsel) for respondent

Date 6 August 2025

JUDGMENT

[1]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed.

[2]If he had not been unfairly dismissed, six weeks after the claimant’s dismissal he would have been given notice of dismissal by reason of redundancy.

[3]It is just and equitable to reduce the basic award payable to the claimant by 50% because of the claimant’s conduct before his dismissal.

[4]The claimant caused or contributed to his dismissal by blameworthy conduct and it is just and equitable to reduce the compensatory award payable to the claimant by 50%.

[5]The claimant’s other claims are dismissed.

REASONS

[1]This section is intended as a brief introduction to the claim, and should not be Page 1 of 60 read as us making any particular findings. Relevant factual or legal findings are to be found elsewhere in this decision.

[2]The claimant was employed by the respondent from 1 June 2020 to 1 December 2022 as an Investment Specialist.

[3]The respondent is one of a number of companies concerned with investment, management and administration of two different pension schemes operated by British Airways: the “Airways Pension Scheme” (APS) and “New Airways Pension Scheme” (NAPS).

[4]The precise scope of the claimant’s role is in dispute, but it is agreed by both parties that to some extent it involved supervision and setting parameters for those who invested money on behalf of the British Airways pension schemes. Initially this was done by a sister company, British Airways Pension Investment Management Limited (BAPIML), but from 1 June 2021 this investment management function was carried on instead by BlackRock, an international investment management group. The process of selecting and transferring the work to BlackRock took up a substantial period of time in 2020 and 2021. The process of selecting BlackRock as an investment manager was known as “Project Montana”. The detailed negotiation and eventual transfer of the work to BlackRock after that was “Project Richmond”. Whether in-house by BAPIML or later by BlackRock, the investment management activities carried on for the benefit of the pension funds were subject to the terms of “investment management agreements”, or IMAs, set out by the trustees.

[5]Precisely in what terms this was done are in dispute, but in July 2022 the claimant was told by his manager that he was either at risk of redundancy or was being made redundant. In early August the claimant presented a grievance in respect of what was said at that meeting, and asserted, amongst other things, that his employment should have transferred to BlackRock under TUPE on them taking on the investment management work. He says that in the course of raising this grievance he made two protected disclosures. The respondent does not accept that those are protected disclosures.

[6]Shortly after the claimant submitted his grievance and, the claimant says, in support of the matters he was raising in the grievance he sent to his personal (non-work) email address a presentation in relation to the transfer of work to BlackRock that the respondent says was confidential.

[7]While, he says, looking for other material, the claimant found what appeared to him to be personal employment information in relation to around 60 members of the respondent’s staff. After a period of consideration, on 12 August 2022 he wrote to members of the respondent’s management team suggesting that him being able to access these personal records amounted to a breach of the GDPR. Page 2 of 60

[8]This set on course a series of investigations by the respondent, which led to it finding that the claimant had earlier emailed to himself the BlackRock presentation.

[9]The claimant was later dismissed, with the dismissal letter saying: “I find your conduct in sending the highly confidential and extremely sensitive documents concerning BlackRock to your personal email address was a clear breach of implied terms of trust and confidence, which, as you have correctly observed, is implied by law and forms part of the employment contract between you and the Company. At the hearing you did make it clear for the first time that you do accept that your actions were a mistake but you didn't go as far as to say you wouldn't do it again despite you being given every opportunity to make this point. As such I have no confidence that you would not conduct a similar breach in the future and so do not believe that a lesser sanction would be appropriate. I find that this was an act of gross misconduct for which the appropriate sanction is dismissal.”

[10]Thus at least the purported reason for the claimant’s dismissal was not the redundancy that had been mentioned earlier, but misconduct.

[11]The claimant’s position is that the reason or principal reason for his dismissal was having raised protected disclosures (thus automatically an unfair dismissal), and that in his grievance and disciplinary procedures he was subject to a number of detriments on account of having raised protected disclosures. It is also his position that his dismissal was unfair on the standard basis set out in s98 of the Employment Rights Act 1996.

[12]During the course of the disciplinary process the claimant had taken a flight on the basis of the travel concessions allowed to an employee by the respondent. The respondent said that this had been done in breach of the rules applicable to such flights, and that he was liable to have been dismissed as a result of that even if not dismissed for a breach of confidentiality.

[13]An agreed list of issues had been prepared for this hearing and is set out at the Appendix to this decision. The hearing

Remedy

[14]The hearing took place across five days, from 28 April – 2 May 2025. The claimant represented himself and the respondent was represented by Mr M Humphreys of counsel.

[15]After a period of reading into the case, the claimant’s evidence started on the afternoon of 28 April, concluding mid-afternoon on 29 April. On the morning of Page 3 of 60 30 April the claimant made an application to amend his claim, which we refused. This decision is recorded in a separate order. Later in the morning the respondent’s evidence started with Richard Pilsworth, who at the time was General Counsel for the respondent. This was followed on 1 May with the evidence of Phil Hogg, a director of the respondent and trustee of the pension schemes. He was the person who took the decision to dismiss the claimant. On the afternoon of 1 May we heard evidence from Roger Maynard, the appeal officer, who at the time was both chair of the respondent’s board and chair of the trustees of the pension funds. Closing submissions followed from the parties on 2 May 2025. At the conclusion of the hearing a provisional case management hearing was set for 8 September 2025 at 10:00 to make arrangements for any remedy hearing, should one be necessary.

[16]At the conclusion of the hearing we reserved our decision, which it was agreed with the parties would be confined at this stage to matters of liability, plus any question of a Polkey deduction (to encompass not just a question of any procedural defect in the disciplinary process that led to the claimant’s dismissal, but also the possibility that he would have been dismissed for redundancy or a breach of the concessionary travel rules) and a deduction for contributory fault.

[17]It is an indication of how finely balanced we have found some of the arguments in this case to be that we have since taken three days (30 May, 26 & 27 June 2025) in chambers to agree and prepare this decision. B. THE FACTS

Introduction

[18]The claimant started work with the respondent on 1 June 2020. Having previously been employed as an investment manager he was now overseeing investment managers as part of a small team. He says: “My role involved a range of investment work, including overall investment strategy, investment reporting, fund manager oversight, performance analysis and ESG monitoring.”

[19]In this context ESG means “environmental, social, and governance”, encompassing a range of matters other than simply financial returns.

[20]The claimant describes being disappointed on joining the respondent to learn that Project Montana was underway with a view to outsourcing the investment management function, meaning that in practice his role was not going to be quite what he had expected or had been led to expect. The claimant describes this move to external investment managers as being an “Outsourced Chief Investment Office” or OCIO arrangement.

[21]As the claimant describes it, this process would move “almost all investment Page 4 of 60 staff to BlackRock ... but I was never in scope to be part of the TUPE employee transfer.” While it later became part of the claimant’s grievance that he should have transferred to BlackRock it is not in dispute that he was never actually transferred to BlackRock, nor did he raise any grievance about not transferring to them at the time of the transfer.

[22]The claimant’s view that “almost all investment staff” were to transfer accords with what Mr Pilsworth says in his witness statement: “All BAPIML staff, as the incumbent providers of the asset management services, were in scope for the transfer. The Respondent also employed six staff who provided the investment operations, or “back office”, services for BAPIML. The back office services included investment reporting and valuations provided to BAPIML to support its decision-making for trades, cash management, managing drawdown commitments and distributions for private equity and alternative assets and administrative aspects of managing the property portfolio. All those back office staff were within the scope of the transfer to BlackRock, but three other individuals in the Investment Operations team remained employed by the Respondent providing ongoing services to the Trustees (e.g. managing the relationship with the custodian of the assets of the Pension Schemes, preparing asset information for the annual report and accounts etc). In summary, all of the staff working primarily on the investment management services carried out by BAPIML transferred to BlackRock. The Team in which Mr Robson worked provided services to the Trustees rather than to BAPIML, and these services were expected to continue, so no members of the Team were within the scope of the transfer.”

[23]It is also agreed between the parties that around this time the investment model used by the respondent was changing. We doubt we are using the correct technical language to express this, but the position was that the British Airways pension schemes were becoming mature schemes so that the focus was less on maximizing overall returns and more on making sure that they were able to pay out the liabilities they had accrued to members who were now drawing on their pension. That was sometimes called a “liability matching” approach, utilising investments such as gilts or property that did not carry the potential high reward (but also high risk) of shares. That was particularly the case with APS, the older of the two pension schemes.

[24]The claimant describes further redundancies occurring within his team (the Funding and Investment Team) in early 2022. We do not think it is in dispute that following the successful transfer of the investment management work to BlackRock the number of investment professionals remaining in employment with the respondent was dwindling. By the time the claimant’s redundancy Page 5 of 60 was mooted he was one of only two Investment Specialists remaining in employment.

[25]It is the claimant’s position that those redundancies were made without proper legal processes, but we do not need to determine whether that is the case for the purposes of our decision. It is the claimant’s dismissal we are concerned with, not anyone else’s.

[26]The claimant was clearly concerned about his future with the respondent following the outsourcing to BlackRock and these redundancies. On 9 May 2022 he sent a Teams message to a colleague, saying: “Apparently if we make it to the 2 year mark – we get a payout too. If not, can just be canned! Fingers crossed for the next three weeks…If we make it that far!”

[27]The claimant would have accrued two years’ service, and therefore the right to a statutory redundancy payment, by the end of May.

[28]Whatever the cause of or rights and wrongs of these redundancies, the claimant says “with the new direction of management being to cut costs, I became concerned that my role was not secure”. The claimant applied for a role within the team at BlackRock, although he was notified on 25 July 2022 that his application had not been successful. Announcement of the claimant’s redundancy or provisional selection for redundancy

[29]The claimant was right to be concerned about the “new direction of management being to cut costs”. At a finance meeting on 25 May 2022 the respondent’s board had adopted “Project Delta”, a “proposal to restructure the Funding and Investment team”. Described as delivering a “25% cost reduction with no increase in risk”, this envisaged the claimant’s team, then a head of funding and investment with two investment specialists, one actuary and one committee manager reporting to her, being reduced to the head of funding and investment, one investment specialist and one pensions actuary. The “matters agreed” at that meeting record: “… the team structure created 18 months ago was now no longer required to provide the appropriate support to the APS and NAPS Trustees. The Board noted that the proposed restructure estimated a reduction in technology costs from £500k p.a. to £200k p.a. … and that the proposed restructure would take effect in June 2022. Noting that Project Delta was put in place to identify efficiencies within BAPSL and manage down costs to reflect the longer term profiles of APS and Page 6 of 60 NAPS schemes, the Board did not raise any objections to the proposed restructure of the Funding & Investment team.”

[30]Thus the board had approved a plan involving the loss of one of two investment specialists – investment specialist being the claimant’s role. Mr Pilsworth said that the implementation of this plan was a matter to be addressed by the respondent’s CEO.

[31]Mr Pilsworth describes how this was done. Vinny Ehzuvan was the CEO and Holly Copley was the Head of Funding and Investment – the claimant’s line manager: “Mr Ehzuvan has told me that he met with Mrs Copley at one of their regular one-to-one meetings after the BAPSL Finance Meeting to discuss the scope of the sole Investment Specialist role and which of the two then-current Investment Specialists would be placed at risk of redundancy. Mr Ehzuvan and Mrs Copley had considered the requirements and focus of the Respondent for the sole Investment Specialist role and what the Trustees would expect the role to deliver within the Team. It had been clear that the pace of NAPS’ de-risking journey (reducing its return-seeking assets and increasing liabilitymatching assets) had accelerated even more than expected since Mr Robson had been hired, with its holdings of public equities having almost halved already since June 2020 and being expected to reduce to around 30% of their June 2020 level in the coming weeks. By contrast, the liability-matching assets were increasing with each de-risk and the prospect of risk transfer transactions to insurers was being brought forward much faster than expected – these assets and transactions were expected to be the focus for the Trustees going forward. Although the job titles were the same, the two Investment Specialists … had distinct roles and different skillsets. Mr Ehzuvan and Mrs Copley had also reviewed the requirements, experience and skills demanded for the sole Investment Specialist role. In line with the profile of the assets of both Pension Schemes, the experience and skills of the role would lie in liability-matching assets and risk transfer transactions to insurers. Mrs Copley had observed that an actuarial qualification would be required to provide the Team’s input on the liability-matching assets and risk transfer transactions to insurers. Mr Ehzuvan and Mrs Copley had then discussed whether Mr Robson’s or [the other investment specialist]’s skills would be better-suited to the sole Investment Specialist role. They had concluded that Mr Robson’s role should be placed at risk of redundancy on the basis of: the diminution of NAPS’ public equities which were Mr Robson’s experience and skillset; his lack of experience in other return-seeking Page 7 of 60 assets such as private equity and property and also in liability-matching assets; [the other investment specialist]’s actuarial qualification which would be key for potential insurance transactions; and Mr Robson’s remuneration being higher than [the other investment specialist]’s remuneration.”

[32]The claimant has been keen to emphasis his credentials in investments other than public equities, but it is not in dispute that he did not have the actuarial qualification and experience that his colleague did.

[33]Mr Pilsworth draws our attention to a Teams message that the claimant sent to his colleague on 1 June 2022, which seems broadly in line with what Mr Pilsworth was suggesting were their respective areas of expertise: “You’ll have to put your insurance hat back on … I will be shown the door. No more investments left.”

[34]In his witness statement the claimant describes the announcement of this to him: “At 4pm on Wednesday 27 July 2022 I had a regular scheduled 1:1 with my line manager Holly Copley. Holly stunned me with news that “a decision had been made” to make me redundant, and that it would take effect from 31 August 2022 … Holly explained that my work would be outsourced, that a TUPE transfer was not possible, that I wasn’t required to work my notice, and that no alternative work was available. When I asked why, she told me that this was a result of the OCIO deal between British Airways Pensions and BlackRock. When I enquired about TUPE, she said that they only thought that TUPE applied to a few members of staff, which didn’t include me. At no stage was I informed of a right to appeal. I was told I needed to get a lawyer to sign the letter, and that I should “probably just get a cheap one by googling it on the internet”. The decision was communicated by letter the same day ... I was devastated.”

[35]The claimant refers to notes he says he took of the meeting. There is no mention there of TUPE, but we see clearly in this Ms Copley presenting the claimant’s redundancy dismissal as a fait accompli. The letter he mentions speaks of his “provisional selection for redundancy” but there is nothing “provisional” in the message that seems to have been delivered at the meeting.

[36]The respondent through the evidence of Mr Pilsworth has sought to cast doubt on the notes produced by the claimant, and also sought to suggest that Ms Copley was not as direct in that meeting as the claimant had suggested, but in the absence of any first-hand evidence from Ms Copley about what happened in that meeting we accept the claimant’s account that he was told that he was going to be dismissed as redundant, not that he had been Page 8 of 60 provisionally selected for redundancy. We note also the claimant’s evidence that immediately following that meeting his holiday booked after August 2022 was cancelled and he was removed from involvement in particular meetings after August 2022. The claimant’s discovery of personal data

[37]The claimant says: “On or around 1 August 2022, whilst searching for BAPSL’s Staff Manual on the internal system, I became aware of a breach of personal data (hereafter referred to as the “Sensitive Data”) within an open area of the Company system. The search took me to a regular folder, in a standard drive, with no security protection, labelled ‘HR’, which was exactly where I would expect to find the BAPSL Staff Manual. The Sensitive Data I found there … consisted of the employment contracts of around 60 members of staff including home addresses and current and historic renumeration packages, and choices they had made for Company benefits, including details of next of kin. I felt that this was very private information and so the individuals could be detrimentally affected by this. Given the deteriorating relationship between myself and BAPSL, I was initially very reluctant to do anything about this discovery. If raised, I knew it would be an open criticism of the Company, its data protection procedures, and work of the Data Protection Officer (DPO) - Richard Pilsworth. I wished I had never seen it.”

[38]The claimant does not dispute the respondent’s position that this information was found in a folder titled “confidential HR information”. The claimant’s grievance

[39]The claimant took legal advice on his position, and on Friday 5 August 2022 submitted a grievance, which for the purposes of this claim is said to contain protected disclosures.

[40]The alleged protected disclosures contained in the grievance are:(i) That the Respondent had already closed its mind to the prospect of the Claimant's on-going employment;

(ii) That the company had failed to comply with its lawful obligations under TUPE (with regard to his individual role); That there was no genuine redundancy situation, and that there had been no consultation, pooling or scoring carried out.

[41]The respondent accepts that these points are made in the grievance, but not that they amount to a protected disclosure or protected disclosures. Page 9 of 60

[42]At the same time the claimant made a data subject access request, or DSAR. Both the grievance and DSAR were sent initially by the claimant to Ms Copley but were sent on by her the same day to Mr Ehzuvan and Mr Pilsworth. The BlackRock presentation

[43]The following Monday, 8 August 2025, the claimant sent an email from his work email account to his personal email account attaching a number of documents to do with the transfer of work to BlackRock.

[44]This included a presentation (with the filename “BlackRock Presentation – Project Montana – 28th September Presentation”) that appears to be BlackRock’s pitch for work for the respondent. It has always been the respondent’s case that this was a confidential document containing, in Mr Pilsworth’s view, “extremely commercially sensitive Pricing Information”.

[45]The claimant accepts in principle that this was a confidential document, although not that he should have known that at the time he sent it to himself and he disputes the actions the respondent subsequently took on discovery that he had sent this to himself.

[46]Amongst other things, the respondent invites us to note (and we do note) that the document: - Contains the words “not for further distribution” in small print on the initial slide. - Sets out the fees proposed by BlackRock. - Contains the words “This material has been provided to You on a confidential basis. This material is not to be reproduced or distributed to any person other than You without BlackRock’s written consent.” in small print under the heading “important information” on the final slide.

[47]The respondent points to various other materials suggesting that the claimant was aware that such pricing information would be considered commercially confidential. We have no difficulty with the position that an experienced investment manager such as the claimant would have understood pricing information from BlackRock to be confidential.

[48]We also note that the document contains two brief references to “TUPE” on a slide titled “High level transition plan”, and the claimant’s explanation of sending this email to himself set out in his witness statement: “Given the deteriorating relationship, I suspected that I would shortly be blocked from BAPSL’s IT system and barred from accessing material which was critical to the Grievance. Without that I would then have no way of proving that I should have moved over to Blackrock via TUPE Page 10 of 60 as had been the case with other staff. On 8 August 2022 I sent one email … from work to my personal account for the purposes of supporting the Grievance. The email included 4 documents found when searching the term ‘TUPE’ in the filing system.”

[49]The following day, 9 August 2022, the claimant sent an email from his personal emails address to Mr Ehzuvan entitled “Follow up to my Grievance”, which included the following: “I attach the BA Pensions Manager Guide on how employees transferring to BlackRock should be treated. I would like this added to my Grievance as it plainly shows a further breach by the Company since this has not been followed at all in my case.”

[50]The claimant says that this “BA Pensions Manager Guide” was one of the documents he had previously sent to his personal email address. He says: “At this point Mr Ehzuvan knew that I had sent TUPE documents to my home email address. However, he didn’t raise this with me or express any concern that I had sent an email home.” More on the claimant’s redundancy

[51]On 9 August 2022 Mr Ehzuvan wrote to the claimant saying: “I acknowledge safe receipt of your grievance and data subject access request in Holly’s absence. Your role has been provisionally selected for redundancy as part of the need to make cost savings in the business. Pending further consultation with you about the position, I agree that you should remain working as usual as no final decision has been taken by the business. Your grievance relates to your selection for redundancy and your allegations that a decision has been taken that you will be leaving the business on 31 August 2022. Whilst these issues must be addressed, it is not appropriate for them to be dealt with as a separate grievance outside the redundancy process. I attach a copy of our grievance policy and refer you to the second section of that policy headed "Scope”, where it is written that: “This policy does not apply to decisions made regarding disciplinary situations, dismissal from employment, Conduct Rules breach reporting or matters that should be raised under the Whistleblowing Policy.” ... Page 11 of 60 I want to reassure you that the issues you have raised will be dealt with, but it is appropriate for your concerns to be addressed as part of the redundancy process. When Holly returns from annual leave, it is planned that there will be a consultation meeting with you, and she will be in touch to make arrangements for a meeting. At that meeting, you can raise your concerns.”

[52]The claimant replied the following day challenging that, saying: “It is … both appropriate and extremely important that my grievance is dealt with as a separate issue to the redundancy process that the company is now trying to retrospectively follow, and is dealt with according to the company’s grievance policy. Furthermore, my grievance does not solely relate to redundancy as there are also wider TUPE processes in consideration which cannot be addressed as part of the redundancy process.”

[53]Mr Ehzuvan replied the following day reiterating that the grievance would be dealt with via a redundancy rather than grievance process. He said: “In answer to your question, it is right that your concerns about the redundancy process and your selection for redundancy should be dealt with as part of the redundancy process rather than through a separate grievance process. As explained in my earlier email, the wording in our grievance policy allows us to deal with decisions made regarding dismissals from employment outside the grievance process. After all, decisions regarding dismissals include not just the final decision to dismiss but decisions taken as part of the process ... I appreciate that one of the issues you have raised is that you should not be made redundant, as your employment should transfer to BlackRock. Again this will be discussed as part of the process.” More on personal data – the second alleged protected disclosure

[54]The claimant says this in his witness statement: “In early August, I was distracted as I prepared the formal Grievance, and DSAR. However, once the Grievance was submitted, my conscience reminded me of the Sensitive Data. After taking some time to locate it, I found and copied the file to a separate, BAPSL folder, on the BAPSL drive which only I had access to, while I established the best way to report this ... On 11 August I wrote an email to my solicitor … asking whether I should report this, or whether it would inflame the situation. My solicitor was very clear in her response that I needed to report this to BAPSL. Page 12 of 60 I therefore wrote to BAPSL the very next day (12 August 2022) … explaining what I had found and my concerns (this formed the Second Protected Disclosure).”

[55]As he says, the claimant wrote by email to Ms Copley on Friday 12 August 2022. The bulk of his email is taken up with his response to the respondent’s apparent efforts to undertake redundancy consultation with him (which he describes as “retrospective” and “farcical”) but he also says: “Separately, whilst searching the system earlier today for the BA Pensions Staff Manual on the internal Sharepoint, I uncovered a significant amount of highly confidential documentation that appeared in an open area of the system when I searched for the Manual term. There was a file containing 62 documents consisting of signed staff contracts and spreadsheets, with high volumes of personal information including names, addresses, compensation arrangements, salaries, bonuses and benefit choices. I am deeply concerned at the blatant breach of employee confidentiality, and this treatment of highly confidential documentation clearly breaches Appendix H – Privacy Policy for BAPSL Staff (see ‘Security of Your Data’). Furthermore, and as I am sure you are aware, the company is required to protect employees’ personal data under GDPR regulations. The fact that I have accidentally accessed this information evidences that the company has failed in its duty to protect employees’ data privacy and security, and I find it shocking that such private information is accessible to anyone at the company. I trust that the affected employees, past and present, will be informed of this data breach as soon as possible, along with the Trustees of APS and NAPS, and British Airways as applicable. Please confirm this. I will also seek advice from my lawyer about raising this with the ICO. Please forward me a copy of the BAPSL Whistleblowing Policy to help me ensure that I am reporting this along the correct lines.”

[56]In reply to the email from Mr Ehzuvan set out immediately above, the claimant said: “You should also note that I have identified a serious data breach on the part of the company when looking for the Staff Manual. I am awaiting the Whistleblowing policy so I can ensure that this has been reported to the right people. Obviously all of those affected will need to be formally notified of the breach. Please confirm they will be and that you will notify the ICO urgently.”

[57]Thus it is the claimant’s position that the second alleged protected disclosure was made twice. To quote from the list of issues: “On 12 August 2022, in emails to Ms. Copley at 11.13am and to Mr. Ehzuvan at 11.57am (which it is agreed were not grievances), that the Page 13 of 60 Claimant had identified a breach of GDPR requirements.” Events immediately following the second alleged protected disclosure

[58]Mr Pilsworth (the respondent’s data protection officer) says: “Mrs Copley and Mr Ehzuvan passed these emails on to me within minutes of receiving them. In line with the Respondent’s Personal Data Breach Management policy … I then started the process internally for the appropriate people to review the circumstances and the alleged data breach concerning the data in question (the “Data”).”

[59]Mr Pilsworth’s witness statement continues: “Having reviewed Mr Robson's two emails to Mrs Copley and Mr Ehzuvan, on 12 August 2022, I initiated an investigation (the "IT Investigation") to determine whether a personal data breach may have taken place. I recall that it was not at all straightforward to determine whether a personal data breach had taken place in relation to the Data because:(a) As part of the IT Investigation, the first step was to attempt to recreate the search that Mr Robson alleged he did, by searching for “Staff Manual”, “Staff” and “Manual” in SharePoint which did not yield any results for the files which formed part of the Data. I note that Mr Robson alleges he found the Data by searching the term “Manual” in his 11:13 email on 12 August 2022, which is inconsistent with his email to his legal advisers at 14:10 on 11 August 2022 in which he claims “In fact, these documents appear whenever you search for ‘staff’ in the SharePoint system” ... To this day, it remains unclear what search terms Mr Robson did use to find the Data. Furthermore, on 1 August 2022, Mr Robson sent a Teams message to my colleague Mrs Maria Penna, Senior Legal Counsel for the Respondent, asking “Quick but random question. Does BAPSL have an Employee Handbook?” to which Mrs Penna sent Mr Robson a link to the Staff Handbook and replied, “The Staff Handbook June 2019 should be the first port of call unless you see a more specific policy in the folder” ... Mr Robson then sent an email from his work email address to his personal email address at 18:34 on 1 August 2022 attaching a copy of the document called “Staff Handbook June 2019” ... It is therefore also unclear to me why Mr Robson would be searching “earlier today”, on 12 August 2022, for a copy of the Staff Handbook which he already had, using the search term “Staff Manual” which he had never previously used to describe the “Staff Handbook”, as he claimed he did in his 11:13 email on 12 Page 14 of 60 August 2022 ...

(b) Mr Robson stated that he found the Data in “an open area of the system”. There are areas within the Respondent’s IT system which are intentionally accessible by all of the Respondent’s staff, used primarily to store copies of the numerous publicly available documents relating to the Pension Schemes, such as those on the public member website (mybapension.com), or copies of relevant legislation. This apparent lead was initially explored as part of the IT Investigation but proved to be a ‘red herring’ because the Data was in fact stored in a secure area of the Respondent’s IT folder structure in SharePoint.

(c) Despite the Respondent being aware there are many thousands of folders and files within the Respondent’s IT system, Mr Robson did not clearly identify the location of the Data within the Respondent’s IT folder structure in SharePoint. This is something he could have easily done by copy-pasting a file path or sharing a link to the relevant folder in either of the two notifications he made ...

(d) Mr Robson described the Data only by saying he had found “a file containing 62 documents” including names, addresses, salaries and benefit choices ... It was not clear to us from Mr Robson’s email even that the Data related to staff of the Respondent and of BAPIML. Mr Robson was aware that the Pension Schemes had a total membership of around 82,000 staff and former staff (figures as at March 2022 from the respective Annual Report and Accounts). As the Respondent’s Member Services team undertakes the administration for the Pension Schemes, the Respondent holds data on names, addresses, salaries and benefit choices in respect of all of those 82,000 members. Mr Robson’s description was therefore of a needle in a haystack.

(e) The IT Investigation was concluded by searching for documents which Mr Robson had accessed in the Respondent’s IT system. Even then, there was an initial search for documents accessed by Mr Robson that day, on 12 August 2022, in line with what Mr Robson had told us, but that was unsuccessful because Mr Robson had not accessed the Data on that day. The search was then extended to previous dates, which revealed certain files within the Data which Mr Robson had accessed and which then led us to the relevant folder containing the Data. It was evident to me that Mr Robson was not aware that it would be possible for the Respondent to identify the Data by searching for the details of how he had accessed it because otherwise: Page 15 of 60 (i) he would not have repeatedly accessed the Data; (ii) he would not have said that he had discovered the Data that same day; and (iii) he would have notified the Respondent about his concerns shortly after he first discovered the Data on 1 August 2022, rather than delaying almost two weeks until 12 August 2022 when he first reported it to the Respondent. In line with the Respondent’s Personal Data Breach Management policy … I sought and obtained legal advice from external data privacy counsel on this matter. At 16:00 on 12 August 2022, I convened an internal meeting of the Data Protection Team to discuss the data breach alleged by Mr Robson ... The conclusion of this meeting was that no personal data breach had taken place because the personal data had not been lost outside of the organisation, the Data was not held in an "open" area of SharePoint, as access to it had been restricted and those who did have access to it could be expected to treat it sensitively, and there was a clear legal basis requiring the Respondent to retain the Data. At 21:14 on 12 August 2022, I sent an email to the Information Commissioners Office ("ICO") regarding the alleged data breach, explaining the circumstances and the actions we took ... At 21:15 on 12 August 2022, I sent an email to Mr Robson explaining the actions we had taken to investigate the matter, and setting out the reasons we determined that no personal data breach had taken place ... I put to Mr Robson in my email that he had no reason to access the Data in the context of the work tasks he was currently undertaking for the Respondent and asked him in the same email to confirm that he had not processed, and will not process, any of the Data - “in particular this includes copying the Data or transferring the Data outside the [Respondent’s] IT network or from where it is currently held in the Funding and Investment Team folder within the [Respondent’s] IT network”.” Summary of the position at the end of Friday 12 August 2022

[60]A lot had happened in the space of a week between Friday 5 August and Friday 12 August 2022: - On 5 August 2022 the claimant had raised his grievance, said to include the first protected disclosure(s). Page 16 of 60 - On 8 August 2022 the claimant sent confidential material from his work email address to his personal email address. - The respondent had told him that his grievance was to be dealt with as part of the redundancy process, and spoken of redundancy consultation meetings (redundancy consultation meetings being something the claimant was rightly sceptical of given our findings that he had been told that he was going to be dismissed as redundancy). - On 12 August 2022 the claimant had raised his second alleged protected disclosure about his access to personal data. This had been investigated by Mr Pilsworth who reported to both the ICO and the claimant the same day. His investigation had given Mr Pilsworth reason to think that the claimant had not been entirely frank in making the second alleged protected disclosure. Indeed, Mr Pilsworth had discovered that things said by the claimant in the course of that second alleged protected disclosure, such as him having discovered the personal data “while searching the system earlier today” were not true. The claimant’s sickness absence

[61]The claimant says: “[Mr Pilsworth’s email concerning the reported data breach] was the final straw in terms of my stress levels. My health severely deteriorated over the weekend, and I sought medical advice. On Monday 15 August I was diagnosed with work related stress, and severe sleep deprivation. I was signed off work for a month ...”

[62]The claimant did not return to work at any point before his dismissal. Further correspondence about the data

[63]Mr Pilsworth says that in reply to his email the claimant said on 18 August 2022: “I can confirm that I have not and will not transfer or process any of the aforementioned data other than in the context of reporting the suspected data breach”

[64]Mr Pilsworth also says that on 18 August 2022 the ICO said “we have decided not to take action” in respect of the data breach said to have been identified by the claimant”.

[65]Mr Pilsworth’s witness statement continues: “The initial phase of the IT Investigation on 12 August 2022 had Page 17 of 60 identified that Mr Robson had opened and viewed some of the Data dating back to 1 August 2022. In line with the Respondent’s Personal Data Breach Management policy … I had asked our IT team to undertake a more detailed search to identify if any staff had accessed the Data, when and in what ways. This revealed that Mr Robson had not only viewed the Data, he had also downloaded the Data, meaning that he had saved a copy of the Data to a local drive within the Respondent’s IT system. Mr Robson had already been asked on 12 August 2022 to confirm that he had not copied the Data to a local drive so it was clear that Mr Robson’s confirmation on 18 August 2022 … did not give the comfort about the status of the Data which I had sought and I began to question whether I could rely on Mr Robson’s assurances.”

[66]Quite what was meant by “downloaded” was a matter of controversy in this hearing, but Mr Pilsworth is clear in this extract from his witness statement about what he meant by “downloaded”, and it accords with what the claimant himself described: “I found and copied the file to a separate, BAPSL folder, on the BAPSL drive which only I had access to, while I established the best way to report this.” Essentially the claimant had copied the data from its original position on the respondent’s Sharepoint system to another folder “on the BAPSL drive which only I had access to”.

[67]Shortly after this, Mr Pilsworth was on holiday and the point was taken up by his colleague, Mrs Penna, who on 24 August 2022 wrote to the claimant setting out the apparently limited extent to which anyone else had accessed the data in question, but saying: “The IT records confirm that you first accessed the relevant files on Monday 1 August 2022, then also on Sunday 7 August and on Thursday 11 August. There is no record of you accessing the files on Friday 12 August, and so your statement in your email of 12 August where you have written “whilst searching the system earlier today for the BA Pensions Staff Manual on the internal Sharepoint, I uncovered…” is not supported by the evidence. Our IT records confirm that the first document you accessed was in a sub folder called “BAPSL and BAPIML employment contracts”. We understand that you did so as you were concerned your employment contract might be in there and so it was appropriate to investigate further. However, that sub-folder was contained in a folder titled “Confidential HR Information”. In the sub-folder you accessed, each of file names were clearly titled with the name of the individual concerned. Therefore a search of the index was all you needed to review to check whether your contract was among them, which it was not; you did not need to access or download any of the documents. Page 18 of 60 The records confirm that: 1. On 1 August, you accessed / downloaded the employment contracts for 10 members of staff and other materials containing wider staff data for those related to Project Richmond. 2. On 7 August, you accessed / downloaded the employment contracts for 5 members of staff and other materials containing wider staff data for those related to Project Richmond. 3. On 11 August, you accessed / downloaded the employment contracts for 61 members of staff and other materials containing wider staff data for those related to Project Richmond. Our IT provider has confirmed that the operations you undertook included “FileDownloaded", which is triggered by going to the item and actually selecting “Download”, and saving to a local disk rather than simply viewing the document online through SharePoint. Can you please explain why you repeatedly downloaded the employment contracts of colleagues within the business that you did not need to see and did not have managerial responsibility for? Further, please confirm why you downloaded over 60 contracts that were marked as confidential in circumstances when there was no business need or appropriate reason for you to download this data? It is important for us to understand for what purpose and why you took the actions you did as part of our investigation into this matter. Can you please confirm the position as soon as is possible. Your confirmation that you will not transfer or process any of the personal data you have discovered is noted. Given the evidence we have that you have downloaded the files, can you please provide written confirmation that you have irretrievably deleted any files that you may have saved locally.”

[68]No response was received and Mrs Penna chased for a response a week later on 31 August 2022.

[69]The claimant replied on 5 September 2022 criticising “the aggressive and accusatory tone of your email”. He questioned whether the respondent could be confident that no-one else had accessed the data, and described Mrs Penna’s view that he had not accessed the material on 12 August as “petty and distracting from the real issue”. Nevertheless, the claimant “concede[d] that there may have been one calendar day difference in my recollection of events”. He said: “As described in previous communications, I accessed the files to check the contents to verify whether data protection requirements had Page 19 of 60 indeed been breached, following which I reported the breach to the company as per the company’s own data breach policy. The company subsequently admitted the mistake and took steps to protect the sensitive data. It is foreseeable that if it were not for my honest and diligent actions, that this data would still be unprotected (as it was for a least 6 months prior to my discovery of it). I have made the purpose of accessing the data abundantly clear. I am truly disappointed at the hostile and accusatory response I have received from the company to my disclosure, undermining my honest intentions, repeatedly challenging my disclosure and blaming me for accessing the data. In answer to your question, I confirm that I have irretrievably deleted any and all confidential files related to this matter that were downloaded and saved locally.”

[70]That essentially brings us to a central point made by the claimant in these proceedings. Why, when he was the person who had, in his view, made protected disclosures, was the focus now on his behaviour in accessing and retaining the data?

[71]The claimant also criticised the whistleblowing policy that had been provided to him.

[72]Mr Pilsworth says that: “Given that a month had now passed since he had downloaded the Data, this statement no longer gave the comfort it might have done if it had been forthcoming in mid-August – Mr Robson might have copied the Data elsewhere in which case deleting only those files “downloaded and saved locally” gave no comfort. Mr Robson also failed to give a reasonable explanation for why he had repeatedly accessed the Data. Further, Mr Robson made statements in his email suggesting that the Respondent should be concerned that the Data could have been copied elsewhere … I considered that this could be read as a veiled threat that Mr Robson had done, or could have done, this. I was becoming increasingly concerned about Mr Robson’s intentions in downloading the Data. There had been high profile cases, such as in relation to Morrisons supermarket, of disgruntled employees downloading employee data and uploading the data onto public filesharing websites. In my response to Mr Robson on 7 September 2022, I asked for additional assurances around the deletion of any records that Mr Robson held of the Data.”

[73]Mr Pilsworth’s email of 7 September 2022 was lengthy and covered many matters. The claimant describes the respondent’s correspondence in this period as “frequent and aggressive”. So far as the “personal data investigation” was concerned, Mr Pilsworth said: Page 20 of 60 “Had the facts been as you claimed in your 12 August 2022 email, that would have been the end of the matter. However, the IT investigation has revealed that you repeatedly accessed the very documents that you claimed to be concerned about protecting. Your actions continued over a period of almost two weeks, starting on 1st August 2022, long before you alerted us to the matter. In total, you accessed the documents 149 times, including downloading copies of the documents. It is simply not credible to reconcile these actions with your statement that you “accessed the files to check the contents to verify whether data protection requirements had indeed been breached” (see your 5 September email). It would obviously be possible to achieve what you claimed to be doing by accessing at a maximum one of the documents in question. In Maria's email of 24 August, you were asked to explain “as soon as possible” why you repeatedly accessed the documents. In Maria’s email of 31 August, you were given a deadline to provide this explanation by Friday 2 September 2022. You have failed to meet this deadline. It is accepted that you had access rights to these files and that your downloading of them could have been permissible, if you had a reasonable business need to do so, but there is no clear legal reason to justify your repeated accessing and downloading of this personal data since 1 August 2022. You have been asked to explain your actions but have failed to do so in your email of 5 September 2022. As an employee, you are required to respond to reasonable requests for information promptly. It is now a matter of concern that you have failed to respond to this request especially given the clear deadline that has been set for you to do so. I remind you of the BAPSL Computer Security Policy, which provides that "When using computer equipment, you must comply with the legislation and regulations that apply to the security of equipment, information and processing of data". The Data Protection Regulation requires you to adhere to the guidelines set out in the Computer Security Policy and makes it clear that "failure to comply or any misuse…. could make an employee subject to disciplinary action, including dismissal and in some circumstances liable to legal action as well" Given the nature of the issues we have asked you about, we are offering you a final opportunity to provide a reasonable explanation for your actions. This must be provided to us by midday on Friday 9 September. … Page 21 of 60 Thank you for giving written confirmation that you have "irretrievably deleted any and all confidential files related to this matter that were downloaded and saved locally" by you. For the purposes of our investigation, please clarify that you mean the 10 files you downloaded on 1 August, the 5 files you downloaded on 7 August and the 61 files you downloaded on 11 August. We require this information to meet our obligations as a data controller. We, therefore, require you to provide this as a written undertaking setting out which documents you have deleted irretrievably and that you have not retained any copies in either hardcopy or on any other device, including taking a screenshot or other photographic reproduction on your mobile phone or any other device.”

[74]So there we see the respondent’s response to the question we have posed above as being central to the claimant’s claim: why was the focus on the claimant’s behaviour in accessing and retaining the data?

[75]According to this email, “Had the facts been as you claimed in your 12 August 2022 email, that would have been the end of the matter.”

[76]We take it from that to be the respondent’s position that it was not any protected disclosure that was the problem (the 12 August 2022 email, in fact two emails, were said to contain the second protected disclosure(s)), but that what was said in that email was not true (not that the alleged protected disclosure(s) were not true, but the explanation of how and when the claimant had come across the data was not true). The respondent’s investigation showed that the claimant had accessed the data he claimed to be concerned about multiple times across multiple days, as well as storing a local copy of it. That problem was compounded by what Mr Pilsworth considered to be evasive responses from the claimant in follow-up correspondence.

[77]The claimant replied at even greater length than Mr Pilsworth had, in time for the deadline of 9 September 2022. Flights during sickness absence

[78]In the meantime, at the end of August 2022 the claimant had attended the office for a meeting with his manager. Despite everything going on that that time he says that the meeting “ended amicably” with a personal conversation. The claimant says this: “… reminded me that I did have a good relationship with my manager, and it saddened me that it had come to this, all because of the actions of the Company. On leaving I enquired whether she would mind if I took a short holiday as recommended by my doctor, to help with the stress condition. She said ‘yes, of course, that is bound to assist your recovery and maybe get you back to work sooner’. I mentioned that I still had a set of BA flights to use that year, and asked if it would be ok to use them. She said that I had already earned those as part of my Page 22 of 60 benefits package from last year, and that I am, of course, entitled to use them for this break.”

[79]As with the question of the claimant’s redundancy meeting with Ms Copley, the respondent has sought to suggest that this meeting did not occur in the manner the claimant describes. This is important as it is accepted that staff were not entitled to use their travel concessions during periods of sick leave without permission, although there was no particular form in which that permission had to be given.

[80]As with the question of the redundancy meeting, in the absence of any evidence from Ms Copley as to what occurred, we accept the claimant’s evidence that he was given permission during this meeting to use his flight concessions despite being off sick. Discovery of the 8 August 2022 email

[81]Mr Pilsworth says: “Given Mr Robson’s previous delays in responding to my emails on this subject and my concerns about relying on the assurances he had previously given, after sending my email I discussed with our Head of IT what options we had to verify independently whether Mr Robson had further copied or transferred the Data outside the Respondent’s control. I was told that one check that could easily and quickly be undertaken was a targeted search of emails Mr Robson had sent from his work email account to his personal email account. I therefore authorised, in line with the Respondent’s relevant Policies, a search of emails sent from Mr Robson’s work email account to his personal email account in the period from 1 August 2022 (when we knew Mr Robson had first accessed the Data) through to 7 September 2022 to check whether Mr Robson had sent on any of the Data which he had downloaded. The search confirmed Mr Robson had not done so. However, in the results of this search, I discovered an email which Mr Robson had sent on 8 August 2022 at 16:19 from his work email account to his personal email account (the "Email") … to which he had attached several documents, including a file entitled “BlackRock Presentation – Project Montana – 28th September Presentation” (the "BlackRock Document") ... The BlackRock Document contained the extremely commercially sensitive Pricing Information ...” The start of the disciplinary investigation, and the claimant’s suspension

[82]Mr Pilsworth says: “In these circumstances [the discovery of the email], on 7 September 2022, I initiated an investigation into Mr Robson's alleged gross Page 23 of 60 misconduct (the “Disciplinary Investigation”). I carried out this investigation during September and October 2022.”

[83]This instigation of the disciplinary investigation is said by the claimant to be a detriment caused by protected disclosures.

[84]Mr Pilsworth says that in the initial stages of this process he asked Ms Copley whether the claimant could have been expected to know that the BlackRock presentation was confidential and: “In summary, Mrs Copley concluded that given Mr Robson's seniority and management of the relationship with BlackRock, she considered that Mr Robson would have been acutely aware of the commercially sensitive nature of the Pricing Information from BlackRock’s perspective.”

[85]On 9 September 2022 Mr Ehzuvan sent a letter by email to the claimant which included the following: “I enclose with this letter an email print out which shows that on Monday 8 August 2022 at 16.19, you used your BA Pensions email account … to forward files relating to the outsourcing of services to BlackRock to your personal email account … One of the files was entitled "BlackRock's Presentation - Project Montana - 28th September Presentation " (the "Document”). Whilst all of the files are confidential, the Document contains extremely commercially sensitive pricing information on the asset management services provided by BlackRock to the APS and NAPS Trustees. The commercially sensitive pricing information appears over five separate pages of the Document As an Investment Specialist of a Senior Manager grade, conducting oversight of the relationship with BlackRock, you are fully aware BlackRock has always made it very clear that it considers the fee deal agreed with the APS and NAPS Trustees to be extremely sensitive commercial Information, which is subject to even stricter confidentiality provisions than would usually be the case in such contractual arrangements. I understand that you in particular are aware of this, and that in fact, you have been involved in team discussions regarding redacting documents which include references to the BlackRock fee terms, before they are sent to certain of our professional advisers. Allegation We are therefore writing to you to make you aware that we believe that your conduct may amount to gross misconduct, and that the Company may have grounds to terminate your employment summarily for an act of gross misconduct. Page 24 of 60 … It is clear that the Document constitutes Confidential Information, and that you are under a contractual obligation not to disclose or make use of, or encourage or permit the disclosure or use of any Confidential Information for any purposes other than those of the Company and for the benefit of the Company. We are also considering, if, in light of your knowledge of the importance that BlackRock placed on strict confidentiality of the fee deal between it and the APS and NAPS Trustees and in sending the Document to your personal email address, you breached the implied duty of trust and confidence which you owe to the Company. Accordingly, you are required to attend a disciplinary meeting at the Company’s office space at Waterside on Thursday 15 September 2022 at 10am. The meeting will be chaired by me. … Suspension As a result of serious concerns about your continued access to the Company's IT systems and confidential Information In light of the allegation above, until the outcome of the disciplinary procedure is known, Holly Copley of the BAPSL Management Board (which has replaced the Executive Committee) has determined that you are to be suspended from work, in accordance with the Disciplinary Policy.”

[86]The claimant’s suspension, communicated in this letter, is said to be a detriment arising from protected disclosures. The decision to suspend the claimant was apparently made by Ms Copley, and Mr Pilsworth says this: “Mrs Copley’s justification for taking this decision was that she was concerned that the Company needed to limit Mr Robson’s access to work systems and confidential information pending a complete review of his recent conduct in relation to this matter. Mrs Copley considered alternative options to suspension but these did not effectively limit Mr Robson’s access to work systems and confidential information.”

[87]Mr Pilsworth goes on to say “For these reasons, I do not accept Mr Robson’s allegations that his suspension amounted to a detriment.” That is somewhat surprising given that in the list of issues the respondent accepts both that the suspension happened and that it amounted to a detriment. It seems from what follows from that quote in Mr Pilsworth’s witness statement that this is better read as being that Mr Pilsworth’s does not accept that the suspension was a detriment arising from protected disclosures. That is consistent with the respondent’s position. Page 25 of 60

[88]The claimant says: “BAPSL had suddenly taken objection to the email I sent home on 8 August. I was surprised this should be raised now, given Mr Ehzuvan was well aware of the email I sent on 8 August, as I informed him in my email to him on 9 August ... I didn’t understand what had changed between 9 August and 9 September, other than my raising of a second protected disclosure on the 12 August, criticising the Company’s data protection procedures and the DPO, Mr Pilsworth.”

[89]The claimant is going too far in saying that “Mr Ehzuvan was well aware of the email I sent on 8 August, as I informed him in my email to him on 9 August”. We have referred to the 9 August email earlier, and the most the claimant says about that earlier in his statement is “at this point Mr Ehzuvan knew that I had sent TUPE documents to my home email address”. There is something to that point, although we doubt Mr Ehzuvan would have applied his mind to that as an issue on receipt of the 9 August email, and there is a considerable difference between sending Mr Ehzuvan from the claimant’s personal email address a TUPE document and Mr Ehzuvan knowing at that time that claimant had sent confidential pricing information to his personal email address.

[90]The claimant continues: “BAPSL claimed that some pages of one of the documents I sent home contained historic pricing information. This was the first time I knew of this. I did not observe this information prior to sending, as my focus was purely on TUPE related matters. The search I made on the internal system was for “TUPE” and this document contains many references to this. The document was not labelled as confidential, and was available in an open area of BAPSL’s filing system with no password protection. Passwords for confidential documents was standard practice at BAPSL. BAPSL later claimed that there was a notice … in small font, somewhere at the bottom, not to distribute it. Although I didn’t observe this at the time, I never distributed the documents, and so abided by the notice anyway. … … despite the document apparently being so sensitive from a pricing perspective and to such a degree that warranted an immediate suspension, I was surprised that Mr Ehzuvan made no mention or request for me to delete the document. However, I felt it was the right thing to do and therefore deleted the document the same day. As there was no mention of deletion in Mr Ehzuvan’s letter, it never occurred to me to inform Mr Ehzuvan that I had deleted the document. There was no follow up by Mr Ehzuvan after this in regard to confirmation of the deletion. In the weeks and months that followed there was never a Page 26 of 60 request to delete the document or enquiry as to whether I had, leading me to doubt the real sensitivity of the document. … The suspension was a knee-jerk reaction, implying to work colleagues, and my professional network, that some form of wrongdoing had taken place. I was afraid this could damage my reputation and standing in the industry. No attempt was made to communicate with me to understand my version of events before suspension. There was no consideration of my wellbeing and mental health, especially as I was already off sick. There was no consideration of alternatives to suspension, for example - to restrict my IT access. Also, there was no explanation why a suspension was needed before an investigation could take place.”

[91]The claimant provided a detailed written reply to the allegation on 12 September 2022 saying, amongst other things: “The investigation of my company email account was a clear attempt to trawl through my historic communications in an effort to find something which could be used in a disciplinary hearing in a desperate attempt to remove me from the Company. Due to having already provided explanations for accessing the data, this investigation was clearly nothing more than a fishing expedition with no legitimate basis. I believe this is a thinly veiled attempt to cover up the Company’s illegal activities in relation to the Data Breach (to which I alerted the Company several weeks ago), to its behaviour contravening its Harassment and Bullying policy (to which I alerted the Company in various correspondence including my letter of 9 September 2022) and not least to hide its attempt to avoid its obligations to follow a lawful redundancy process when dismissing staff for the reason of redundancy (to which I alerted the company on 5 August 2022).”

[92]He concluded by saying that Mr Ehzuvan should not chair the disciplinary hearing and that he (the claimant) was unable to attend the scheduled disciplinary hearing due to ill-health.

[93]The intended disciplinary hearing did not take place. The claimant was referred to occupational health, and Mr Pilsworth continued his investigation through September and into October.

[94]At the end of September the claimant and his wife took the concessionary flights that have been called into question by the respondent. This was during his period of sickness absence. The investigation report Page 27 of 60

[95]Mr Pilsworth sent his “disciplinary investigation report” to the claimant on 13 October 2022.

[96]In this, Mr Pilsworth says that he was commissioned as investigator by Mr Ehzuvan. Amongst other things, the report says: “An investigation was undertaken by the BAPSL IT team on 7 September 2022. The IT team undertook a limited search of Mr Robson's work email address to discover if any BAPSL staff data had been sent from Mr Robson's BA Pensions email address to his personal email address in the period between 1 August 2022 (when he first accessed the employee data) and 7 September 2022. For the purposes of the search, the IT team searched for emails sent from Mr Robson’s BA Pensions email account to Mr Robson's personal email account during the period stated above. … an email print out which shows that on Monday 8 August 2022 at 16.19, Mr Robson used his BA Pensions email account … to forward files relating to the outsourcing of certain services to BlackRock Investment Management (UK) Limited (BlackRock) to his personal email account … (the 8 August Email).”

[97]Mr Pilsworth works through the claimant’s response as set out in his email of 12 September 2022, and sets out extracts from “relevant contractual and policy provisions”.

[98]Mr Pilsworth concludes in his investigation report: “I find that the Document sent by Mr Robson to his personal email address constitutes Confidential Information – it was presented to the APS and NAPS Trustees and the last page states that “This material has been provided to You on a confidential basis”. The other documents attached to the 8 August Email also constituted Confidential Information. I find that Mr Robson is under a contractual obligation not to disclose or make use of, or encourage or permit the disclosure or use of any Confidential Information for any purposes other than those of the Company and for the benefit of the Company (clause 13.1 of the Employment Contract). As an Investment Specialist of a Senior Manager grade, Mr Robson’s job role included close involvement in both Project Montana and Project Richmond and, following completion of those projects, day-today oversight of the relationship with BlackRock. BlackRock has always made it very clear to those working in the BAPSL business that it considers the fee deal agreed with the APS and NAPS Trustees to be extremely sensitive commercial information, which is subject to even Page 28 of 60 stricter confidentiality provisions than would usually be the case in such contractual arrangements. BlackRock’s fees are uniquely favourable to the APS and NAPS Trustees and they are the subject of a “most-favoured nation” clause which requires that if BlackRock offers a more favourable fee deal to other clients, then BlackRock must also offer that fee deal to the APS and NAPS Trustees. BlackRock is concerned that the fee rates offered to the APS and NAPS Trustees are kept confidential because if those rates became known to other clients, or investment consultants which might advise on the competitiveness of fee rates of asset managers, BlackRock will come under pressure to match or reduce the fees it offers elsewhere. For this reason, BlackRock has placed contractual obligations on the APS and NAPS Trustees to redact the fee rates from documents which are issued to certain investment advisers and experts to the APS and NAPS Trustees. Given the attendance of such investment advisers and experts at IC meetings, it was therefore necessary to redact the IMAs in the papers presented to the ICs of the APS and NAPS Trustees in June 2022. Accordingly, Mr Robson stated in his papers to the ICs dated 26 and 27 May 2022 that “the fee sections…have been redacted”. From my conversation with Mr Robson’s Line Manager, Mrs Copley, and having read the papers prepared by Mr Robson dated 26 and 27 May 2022 that he presented to the Investment Committees of the APS and NAPS Trustees on 7 and 8 June 2022, I find that that Mr Robson is aware of the need for strict confidentiality in relation to the fee terms agreed with BlackRock. I refer to Section 4 where I have set out details of facts that have not been established due to my inability to speak to Mr Robson. I note that Mr Robson has admitted sending the Document from BAPSL's secure systems to Mr Robson's own personal email account (which is not secure).”

[99]Mr Pilsworth recommended that a disciplinary hearing should be convened.

[100]On 3 November 2022 the respondent received an occupational health report (the second occupational health report) saying “I spoke with Mike on 02/11/2022. Medically he is fit to engage in the process but is requesting this be conducted in 7‐10 days.” The disciplinary hearing

[101]Following some complications, the disciplinary hearing was convened on 24 November 2022, with Phil Hogg as the disciplinary officer. Mr Pilsworth was also in attendance. The meeting was recorded, with full notes being produced. Page 29 of 60 We will refer to those notes so far as necessary in our discussion and conclusions. Dismissal

[102]On 1 December 2022 the claimant was notified by letter that Mr Hogg had decided to dismiss him with immediate effect. The decision letter was lengthy and detailed, starting with a summary of the disciplinary meeting. Mr Hogg says: “In reaching my decision, I have taken account of the following:• You have admitted sending the BlackRock document to your personal email address. This document is clearly marked as confidential. You have recently criticised the Company for sending information to you about these proceedings using that email address on the grounds that you considered your personal email was not secure, yet you sent such sensitive documents to that email address yourself.

• You have confirmed your role as a Senior Manager involved in investment management and that you have been directly involved in the Montana and Richmond projects covering the selection of BlackRock and implementation of BlackRock as an asset manager to the APS and NAPS trustees.

• You stated that you were not aware of the content of these documents and did not read them before sending them. These very documents were pivotal to the contract with BlackRock and its implementation. They included price sensitive information that you knew was critical to the commercial relationship agreed with BlackRock. As part of the Senior team implementing the BlackRock contracts and ensuring a smooth transition from BAPIML it is clear to me that these documents were a key enabler to you performing your role. I do not accept you were unaware of their significance and sensitivity.

• On 12 September you wrote to explain your actions relating to the BlackRock document but you neglected to tell the Company you had deleted this document. Instead, you said you thought the Company would have assumed you had deleted them when it advised you they were confidential. In my view this not only undermined the Company's trust in you but also, in my view, engendered suspicions on what you intended to do with the data.

• You allege that the Company has suffered no harm as a result of you sending the BlackRock document to your personal email. Page 30 of 60 This ignores the fact that once it is outside the Company's control the Company cannot protect the BlackRock document and there is uncertainty about whether it could fall into the hands of third parties.

• In mitigation, you stated that you quickly realised you had made a mistake in sending the BlackRock document to your personal email. However, I can see no evidence that you admitted that to the Company at the time. In fact, you waited until the hearing to suggest this. You did not provide any evidence that the BlackRock document was deleted and/or when the BlackRock document was deleted. It was also open to you to delete the confidential information before sending the document to your personal email address to avoid any breach You could also have simply read the BlackRock document.

• Also in mitigation, you questioned whether sending any documents such as, for example, the staff handbook or your contract of employment to one’s personal email was wrong? Such documents relate to your personal information that you need as an employee and in my view, these documents contain information that is personal to you and you are free to share them in that way. However, this clearly does not apply to sending any confidential company/business information outside the organisation especially when the information is as commercially sensitive as has been highlighted and is also confidential to a third party with whom the Company has commercial arrangements.

• It is clear to me that, as an employee, you have a clear duty to both understand and comply with the requirements of your contract of employment, Company policies and procedures. I refer you to paragraph 13 of your employment contract which details your responsibilities in relation to confidentiality, restrictive covenants and intellectual property rights. The nature of your work clearly includes the requirement to identify and handle commercially sensitive documents and ensure data security and confidentiality as prescribed by Company policy. You have admitted sharing highly confidential and extremely commercially sensitive documents, the BlackRock document, by emailing them to your personal email address on 8th August 2022 which I consider to be a breach of trust and confidence. I do not accept your assertions that you made a mistake in doing this, that you had not read the documents before emailing them and that you did not know they were confidential and commercially sensitive. Page 31 of 60 Your act was in clear contravention of the requirements of your employment contract and Company policies and procedures. I find your conduct in sending the highly confidential and extremely sensitive documents concerning BlackRock to your personal email address was a clear breach of implied terms of trust and confidence, which, as you have correctly observed, is implied by law and forms part of the employment contract between you and the Company. At the hearing you did make it clear for the first time that you do accept that your actions were a mistake but you didn’t go as far as to say you wouldn’t do it again despite you being given every opportunity to make this point. As such I have no confidence that you would not conduct a similar breach in the future and so do not believe that a lesser sanction would be appropriate. I find that this was an act of gross misconduct for which the appropriate sanction is dismissal. You have the right to appeal against your dismissal.”

[103]Much of this was effectively old ground – points established at a very early stage and/or admitted by the claimant – but there do appear to have been some new points that arose during the meeting, such as whether the claimant said he had deleted the BlackRock presentation and whether he would do the same thing again. We will consider the significance of that in our discussion and conclusions.

[104]Mr Hogg describes his “lasting impressions” from that meeting in his witness statement: “(a) Mr Robson claimed to have deleted the BlackRock Document on 9 September 2022 but he had offered no explanation as to why he had previously refused to confirm this to anyone. (b) Mr Robson’s statement that he was not fully aware of the contents of the BlackRock Document contradicted with his later confirmation that he knew it was sensitive and of commercial value. (c) Mr Robson lacked credibility in claiming his actions had been an innocent mistake.”

[105]Mr Hogg goes on in his witness statement to say: “At the time I took the decision to dismiss, I knew that Mr Robson's role was at risk of redundancy and that he had made an allegation of a personal data breach. I now understand that Mr Robson complained in his grievance that there was no genuine redundancy, the business failed to follow a proper redundancy process, it had closed his mind to Page 32 of 60 him remaining employed and that the business had not complied with its lawful obligations under TUPE in relation to him being employed by BlackRock. I vehemently deny that either the alleged personal data breach or any of the issues raised by Mr Robson had a bearing on my decision. I was aware of the background of his grievance when I took the decision to dismiss him but made it very clear that this was not relevant to the decision I made. I did not consider the alleged personal data breach or the fact that he was at risk of redundancy to be relevant to the issues at hand. They had absolutely no impact on my decision to dismiss him. My decision to dismiss him was based purely on his gross misconduct in sending the BlackRock Document, including the Pricing Information, to his personal email account.” The appeal

[106]The claimant appealed against his dismissal, and his appeal was heard by Mr Maynard on 5 January 2023. In his appeal letter he said: “My overall point is that I firmly believe (and have evidenced why below) that the reason I was subjected to a disciplinary process in the first place was because the Company:(a) realised it could not fairly dismiss me for redundancy despite it trying to do so anyway;

(b) did not want to deal with the grievance that ensued as a result (and has victimised me for raising it); and

(c) knew that I had uncovered various data breaches on the part of the Company and wanted to punish me for raising protected disclosures. As a result of (a) to (c) above, the Company decided to embark upon a “fishing expedition” and managed to dig out one document I sent to my personal email address. On the basis of this one document, the Company has dismissed me summarily for gross misconduct. Besides this situation not remotely coming close to what would constitute gross misconduct, the process followed by the Company in dismissing me has also been fundamentally flawed. The outcome was predetermined, and I am sure the same will be the case for my appeal. Nonetheless, I am appealing in the hope that the Company will correct its position while it has the chance to do so.”

[107]The claimant picks up on one of the points made by Mr Hogg in the dismissal letter, saying: “In his outcome letter, Mr Hogg makes one reference to an alternative sanction, on paragraph one of page 10. He states: Page 33 of 60 “At the hearing you did make it clear for the first time that you do accept that your actions were a mistake but you didn't go as far as to say you wouldn't do it again despite you being given every opportunity to make this point. As such I have no confidence that you would not conduct a similar breach in the future and so do not believe that a lesser sanction would be appropriate”. This statement by Mr Hogg is false on two accounts. Firstly, in contradiction to his statement, I did admit to sending the email, as is clearly shown in my letter to Mr Ehzuvan on 12 September 2022. Secondly, he maintains that I didn’t specifically state that I wouldn’t do it again, although clearly, he didn’t ask me the question of whether I would do it again. It is unfathomable that Mr Hogg is making such career limiting decisions based on me not answering a question that he didn’t even ask (as with my previous point about deletion of the document). The whole thing is frankly laughable. I am happy to confirm now, and in any undertaking that I will not do it again. Since this is my appeal, the Company now knows this and can overturn its gross misconduct dismissal.”

[108]Those are far from the only criticisms the claimant makes of the decision in his appeal letter.

[109]The claimant’s appeal was unsuccessful. He was notified of this by a letter dated 20 January 2023. On the question of deletion of the document, Mr Maynard says: “Given the sensitivity of the BlackRock document, I do not think it was unreasonable of BAPSL to assume that a manager of your seniority and knowledge would have deleted the BlackRock document as soon as you recognised that you should not have sent it to your private email address.”

[110]On the question of the appropriate sanction, Mr Maynard says: “I am of the view that in the light of the sensitivity of the BlackRock document and your irresponsibility in transferring it to your private email … you had clearly committed gross misconduct. Phil Hogg has clarified in his dismissal letter that he did consider other options but concluded that dismissal was the only appropriate sanction. Looking at this issue again, I am also satisfied that due to the severity of the breach, dismissal was the only appropriate sanction.”

[111]Mr Maynard concluded: “In summary, having read your appeal letter dated 8 December 2022, the initial investigation report, the hearing before Phil Hogg, and Page 34 of 60 considered your comments at the subsequent appeal meeting with me, I am convinced that there is indeed sufficient evidence to regard the transfer of the BlackRock document as:(i) a breach of the implied term of trust and confidence and

(ii) a breach of the terms of your employment contract. I find that your behaviour did amount to gross misconduct. I further agree that dismissal was appropriate and proportionate and a reasonable sanction in all the circumstances. I have decided to uphold the original decision that you be dismissed summarily on the grounds that your conduct in sending the highly confidential and extremely sensitive BlackRock document was in breach of the terms of your employment and a breach of the implied term of trust and confidence. This decision was confirmed to you in writing by Phil Hogg on 1 December 2022. The reasons for my decision are set out above. This decision is now final, and there is no further right of appeal under the BAPSL disciplinary procedure.” C. THE LAW Protected disclosures

[112]The list of issues refers us to the respondent’s amended grounds of resistance to establish the elements of the definition of a protected disclosure in respect of which the respondent says the first alleged protected disclosure falls short. These are:a. “It is denied that the Claimant believed that the content of the Grievance relied on tended to show a breach of the legal obligations cited … or if he did, it is denied that it was reasonable for him to hold that belief.”

b. “To the extent that the content of the Grievance amounted to the Claimant’s opinion, it is denied that this amounted to a disclosure of information within the meaning of s.43B ERA and so was not a qualifying disclosure.

c. “It is denied that the Claimant had the necessary belief that any such disclosure was made in the public interest, or if he did, it is denied that it was reasonable for him to hold that belief.”

[113]As for the second protected disclosure(s), the list of issues says that “it is the respondent’s position that these did not constitute protected disclosures because the claimant had no belief – or if he did, such belief was not reasonable – that they tended to show any wrongdoing.”

[114]As the list of issues points out, these are objections to the protected Page 35 of 60 disclosures being “qualifying disclosures”. If they are “qualifying disclosures” they will be protected disclosures because they were made to an appropriate person.

[115]Section 43B(1) of the Employment Rights Act 1996 describes a qualifying disclosure as being “any disclosure of information which, in the reasonable belief of the worker making the disclosure is made in the public interest and tends to show … that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject”.

[116]What is required is (Williams v Brown

UKEAT/0044/19

): “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 [that the respondent has failed to comply with a legal obligation]. Fifthly, if the worker does hold such a belief, it must be reasonably held.”

[117]It appears that for the first alleged protected disclosure each of those elements are called into question by the respondent, but for the second it is only the fourth and fifth elements that are disputed by the respondent.

[118]While in principle it may be possible to distinguish between expressions of opinion and disclosure of information, cases such as McDermott v Sellafield Ltd

[2023] EAT 60

emphasise that the question for us is whether there has been a disclosure of information, not whether there is an expression of opinion, and an expression of opinion might itself involve the disclosure of information.

[119]It is well established that “breach of any legal obligation” may include a legal obligation owed to the claimant himself, although as with any other disclosure, this would also be subject to the public interest provisions of s43B(1).

[120]It is not necessary for the claimant to be correct in their assessment that there has been a breach of a legal obligation provided that they reasonably believed that the information they provided tended to show that there has been a breach of a legal obligation. “There is nothing in s43B(1) which requires the whistleblower to be right” (Wall LJ, Babula v Waltham Forest College

[2007] IRLR 346

para 79).

[121]As for the question of public interest in the context of private employment law rights, this was addressed by the Court of Appeal in Chesterton Global Ltd v Nurmohamed

[2017] EWCA Civ 979

. It depends on the claimant (subjectively) believing that the disclosure is made in the public interest and this belief being (objectively) reasonable. It appears there is, in a sense, a “range of reasonable responses” in assessing whether the belief was reasonable – or at least there is no one absolute position as to whether it was reasonable or not, and it is not for the tribunal to substitute its own view on that. The public Page 36 of 60 interest need not be the motive (in whole or in part) for the disclosure. It will be relevant for the tribunal to consider the following factors:a. The numbers in the group whose interests the disclosure served (but this does not preclude a disclosure of information in relation to only one person being in the public interest – Dobbie v Felton

UKEAT/0130/20

)

b. The nature of the interest affected and the extent to which they are affected by the wrongdoing disclosed.

c. The nature of the alleged wrongdoing disclosed.

d. The identify of the alleged wrongdoer, meaning, it seems, that a prominent wrongdoer (respondent) might give rise to a greater suggestion that the disclosure was reasonably believed to be in the public interest than in respect of a respondent less in the public eye. This factor needs to be approached with a degree of caution, or “should not be taken too far”.

[122]An important factor, as previously identified, is that this is not about the motive of the whistleblower. It is simply a question of applying the statutory wording – did they (reasonably) believe that the disclosure was made in the public interest? Detriments

[123]Under s47B(1) of the Employment Rights Act 1996: “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”

[124]In this case the respondent accepts that if each of the alleged detriments occurred they amount to detriments, so we do not need to be concerned with what a detriment amounts to.

[125]Under s48(2): “On [a complaint of whistleblowing detriment] it is for the employer to show the ground on which any act, or deliberate failure to act, was done.”

[126]So if the claimant can show that he has made protected disclosures and been subject to detriments it is up to the respondent to show “the ground on which” those detriments were done.

[127]As for the degree of causation required, “on the ground that the worker has made a protected disclosure” is not a “but for” test, but requires consideration of the employer’s conscious or unconscious mental processes (Chatterjee v Page 37 of 60 Newcastle Upon Tyne [2019] 9 WLUK 556). It is enough if “the protected disclosure materially influences (in the sense of being more than a trivial influence) the treatment of the whistleblower” (NHS Manchester v Fecitt

[2012] IRLR 64

). Taking that together with s48(2), the employer must show that the protected disclosure did not “materially influence” its treatment of the employee in respect of any detriment.

[128]Finally on this point, s47B(2) provides that “this section does not apply where the worker is an employee and the detriment in question amounts to dismissal”. The detriment of dismissal is addressed by s103A. Automatically unfair dismissal

[129]According to s103A of the Employment Rights Act 1996: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

[130]In accordance with normal unfair dismissal principles, at least where the employee has the necessary two years’ qualifying service, as the claimant does in this case, it is for the respondent to show the reason for the claimant’s dismissal (s98(1), Kuzel v Roche Products Ltd

[2008] IRLR 530

[131]A dismissal may be by reason of protected disclosure(s) even if the relevant decision maker is unaware of any protected disclosure(s) (Royal Mail v Jhuti

[2019] UKSC 55

). Thus it is be possible for a dismissal to be by reason of protected disclosure(s) in circumstances where someone other than the apparent decision maker has, by reason of protected disclosure(s) manipulated or mislead the decision maker into making the decision to dismiss the employee. The claimant also placed reliance on Cadent Gas v Singh

[2020] IRLR 86

to similar effect, concerning the “manipulation” of a disciplinary process by someone other than the ostensible decision maker. Unfair dismissal generally

[132]Section 98 of the Employment Rights Act 1996 addresses unfair dismissal: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show:(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) ... (2) A reason falls within this subsection if it: Page 38 of 60 … (b) it relates to the conduct of the employee , … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer): (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”

[133]A conduct dismissal will be subject to the principles outlined in BHS v Burchell

[1978] IRLR 379

. That is, the employer or decision maker must have a genuine belief that the employer is guilty of the misconduct, it must hold that belief on reasonable grounds and after carrying out as much investigation as is reasonable. Each element of this (and the decision on the appropriate sanction) is subject to a range of reasonable responses that are open to the employer (Iceland Frozen Foods Ltd v Jones

[1983] ICR 17

). It is not for the tribunal to substitute its views as to the correct approach for that of the employer (see Mundangepfupfu v Penning Care NHS Foundation Trust

UKEAT/0109/15

). Reductions in compensation to be addressed at this hearing

[134]While strictly speaking matters of remedy, we are asked to address a number of points relevant to remedy at this hearing.

[135]On the question of deductions from unfair dismissal compensation for contributory fault, different rules apply in respect of the basic award and the compensatory award. For the basic award, section 122(2) of the Employment Rights Act 1996 applies: “Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.”

[136]And in respect of the compensatory award, s123(6) applies: Page 39 of 60 “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”

[137]Thus a reduction in the basic award requires only “conduct of the claimant before the dismissal” but a reduction in the compensatory aware requires us to find that “the dismissal was … caused or contributed to by any action of the complainant”.

[138]We are asked to make deductions under the rule in Polkey, described by the Bath Publishing Remedies Handbook in the following way: “A ‘Polkey’ deduction is the phrase used in unfair dismissal cases to describe the reduction in any award for future loss to reflect the chance that the individual would have been dismissed fairly in any event (Polkey v AE Dayton Services Ltd

[1987] IRLR 50

(HL)). This may take the form of a percentage reduction, or it may take the form of a tribunal making a finding that the individual would have been dismissed fairly after a further period of employment (for example a period in which a fair procedure would have been completed). Alternatively, a combination of the two approaches could be used, but not in the same period of loss (as confirmed in Zebrowski v Concentric Birmingham Ltd

UKEAT/0245/16

). The question for the tribunal is whether the particular employer (as opposed to a hypothetical reasonable employer) would have dismissed the claimant in any event had the unfairness not occurred ... The tribunal must assess any Polkey deduction in two respects: 1) If a fair process had occurred, would it have affected when the claimant would have been dismissed? and 2) What is the percentage chance that a fair process would still have resulted in the claimant’s dismissal?” D. DISCUSSION AND CONCLUSIONS Protected disclosures Generally

[139]The first question for us to address is whether the claimant made any protected disclosures, or, to put it another way, whether the things he wrote amount to qualifying disclosures. The first alleged protected disclosure Page 40 of 60

[140]He describes his first alleged protected disclosure as being: “In the Claimant’s grievance dated 5 August 2022, the alleged statements:(i) That the Respondent had already closed its mind to the prospect of the Claimant's on-going employment;

[141]Although structured in the list of issues as two matters, the claimant breaks this down further in his witness statement: “In summary the Grievance stated: i. That BAPSL had already closed its mind to the prospect of my ongoing employment ii. The Company has failed to comply with its obligations under TUPE, following the OCIO deal between British Airways and BlackRock, and that I believed that my own role should also be transferred over to BlackRock iii. There was no genuine redundancy situation and there has been no consultation, pooling or scoring carried out.”

[142]The claimant’s grievance includes the following: “It is clear that a decision has been taken by British Airways Pension Services Limited (the ‘Company’) that I will be leaving on 31 August 2022. That decision is unlawful for a number of reasons, which I have set out in more detail below ... … the Company has failed to comply with its obligations under TUPE. As explained above, a large part of my role at the Company has been to oversee the transition and outsourcing of the entire investment function to BlackRock. Now that has been completed, the correct lawful next step is that my own role should also transfer over to BlackRock as part of the outsourcing project instead of being made redundant. As my employer, the Company is obliged to inform and consult with me if my job role is in jeopardy as a result of the TUPE transfer to BlackRock. No such consultation process has taken place on any measures, including on my redundancy. As I am sure you are aware, the penalty for failure to inform and/or consult under TUPE is an award of up to 13 weeks’ pay for each affected employee. In addition to this, Page 41 of 60 where the principal reason for a dismissal is the TUPE transfer, as is obviously the case here, this will result in automatic unfair dismissal. Additionally the Company has made me redundant having followed absolutely no redundancy process. First, I do not accept that this is a genuine redundancy situation, and second, even if it were, there has been no consultation, pooling or scoring carried out and I have been told my other two colleagues are being retained as they are Actuaries and I am not. That is simply not acceptable. There are large areas of expertise that I have that neither of the other two have including in relation to Responsible Investment and ESG, yet that is being disregarded. The fact is that I have been unlawfully targeted and my imminent termination has been communicated to others within the Company which has also damaged my internal reputation and standing.”

[143]So we have in this an allegation that a decision has been taken that he is to be dismissed on 31 August 2022 and that that decision is unlawful (or to put it in the terms of the Employment Rights Act 1996, a breach of a legal obligation).

[144]The breaches identified are a breach of TUPE obligations, and it is said that the respondent has made the claimant redundancy following “absolutely no redundancy process”, which amounts to the claimant being “unlawfully targeted”.

[145]As set out in our section on the law, the respondent says that this does not satisfy any of the five criteria necessary for a qualifying disclosure.

[146]First, it is said that this is not information, it is an opinion. We disagree, there is a wealth of information in the claimant’s grievance as to why it is that he considers the respondent to have acted in breach of legal obligations it owed to him. We are not in a position to cite the grievance in full, but simply record that the claimant’s position that the respondent has acted unlawfully is backed up by ample information, and is a disclosure of information, not something falling short of that such as a disclosure only of opinion.

[147]The respondent’s next point is that the claimant did not believe that the content of the grievance tended to show a breach of the legal obligations referred to, or that that belief was not reasonable.

[148]We can deal with that briefly. The claimant has given plentiful reasons why he considers the respondent to have acted unlawfully, and at least in the case of the failure to consult about redundancy we have found those reasons to be true. The claimant did reasonably believe that the respondent had failed to comply with these legal obligations.

[149]What is more difficult is the question of whether the claimant raised these Page 42 of 60 matters reasonably believing (although not necessarily motivated by) them being in the public interest.

[150]The claimant addresses this in his witness statement: “I held a belief, which in my view was reasonable, that the Grievance was made in the public interest. British Airways Pensions was managing the £25bn pension fund (with 100,000 members) of the airline, British Airways and were outsourcing large parts of its business to BlackRock, under a high profile OCIO deal (the largest of its kind in the UK), but not following the rules of TUPE and instead making large numbers of redundancies. Furthermore, with those redundancies – they were simply telling people they are redundant – rather than following any sort of process. I believe that I and my colleagues should have been in-scope for the TUPE transfer, especially as we were subsequently made redundant as a direct result of the outsourcing. I, as the more senior member of the team, felt I had a responsibility to call out these actions. If I didn’t call this out, I believe that many more staff would have been treated in this unfair way. I believe the Grievance therefore constituted a protected disclosure.”

[151]There are therefore two, possibly connected, matters that the claimant relies on as suggesting this disclosure or disclosures were made in the public interest. They are the fact that the respondent operated major pension funds, and was dismissing the claimant (and not just the claimant, but others as well) without following the legal requirements for redundancy dismissal.

[152]We will first look at the extent to which this alleged disclosure concerned the claimant only or concerned a wider group of people.

[153]The claimant refers to other redundancies a number of times in his grievance. For instance, we have “In February 2022, a redundancy was made within the Funding and Investment Team” and “In May 2022, another redundancy was made within the team.” In the latter case the claimant says this was inconsistent with what he saw as later extravagance, but that does not seem to be an allegation that the action was unlawful. He says, in the context of his application to work at BlackRock “I could see that the Company were making members of my team redundant under the guise of cost cutting, and I could not understand why they were not being TUPE transferred over to BlackRock” and “I feared I might also be imminently targeted unlawfully so took the initiative to apply for a role at BlackRock.” “Under the guise of cost cutting” might hint at there being unlawful reasons or an unlawful procedure adopted for the other redundancies, but of course “cost cutting” is a primary instance of when redundancies may lawfully be made. Saying that the claimant “could not understand why they were not being TUPE transferred over to BlackRock” is not the direct assertion that they should have been transferred to BlackRock, which the claimant made in his own case. The reference to “also” being Page 43 of 60 immediately targeted unlawfully suggests that the others may have been “targeted unlawfully”. The remainder of his grievance is concerned entirely with his personal situation, or consists of questions which by their very nature would not amount to protected disclosures.

[154]The only suggestion that the claimant is not the only one who has been treated in breach of legal obligations is in the reference to him “also” being “targeted unlawfully”. That seems to us to be quite telling. The claimant’s focus in this grievance is on his own situation. To the extent that others are referred to (which is brief at best) it is in support of his own position. The extract we have cited from the claimant’s witness statement might be read as the claimant as “the more senior member of the team” standing up for the rights of more junior members of staff, but that is not the way in which the grievance reads. The grievance reads as if the claimant is solely concerned with his own position.

[155]Looking at the factors identified in Nurmohamed, the numbers in the group whose interest the disclosure served was essentially the claimant, with passing reference to two others in support of his own position. This did not concern “large numbers of redundancies” as the claimant suggests in his witness statement. The nature of the interest affected was the claimant’s own employment, and it was affected to the extent of his possible dismissal. The nature of the alleged wrongdoing was a failure to comply with employment law. As for the identity of the alleged wrongdoer, it was a prominent pension scheme that was the alleged wrongdoer, and that is a matter that the claimant draws on in his explanation of how he considered this to be in the public interest in his witness statement.

[156]In our view it is only the nature of the alleged wrongdoer that can make a difference in this case and elevate this from a private employment law dispute to something that the claimant could reasonably have considered to be a disclosure in the public interest. We accept his position that his employer had responsibility for substantial pension schemes with almost 100,000 beneficiaries and many billions of pounds of assets under management. Any disclosure in relation to, for instance, mis-management of funds would clearly be in the public interest, but we don’t think the same could be said of private employment law rights, at least in the absence of some aggravating factor that may suggest improper management of the schemes’ money. As might well be expected of a grievance, this was the claimant raising issues in relation to his own employment law rights as against his employer. While it is not necessary for the claimant to be motivated by the public interest, we see nothing in the grievance to suggest that he had in mind any wider public interest, and we do not see that in raising this the claimant either believed that he was making a disclosure in the public interest nor, if he had believed that, was such a belief reasonable. If this was about a more general failure by the respondent to comply with employment law obligations the claimant would have said so in his grievance, but he did not. Page 44 of 60

[157]The first alleged protected disclosure is not a qualifying or protected disclosure. The second alleged protected disclosure(s)

[158]The second alleged protected disclosure is that “On 12 August 2022, in emails to Ms. Copley at 11.13am and to Mr. Ehzuvan at 11.57am (which it is agreed were not grievances), that the Claimant had identified a breach of GDPR requirements.”

[159]The respondent’s object to this counting as a protected disclosure are more limited to those in respect of the first alleged protected disclosure and are simply that “these did not constitute protected disclosures because the Claimant had no belief – of if he did, such belief was not reasonable – that they tended to show any wrongdoing.”

[160]Use of the word “wrongdoing” in this context must be taken to mean breach of legal obligation, since that is the element of a protected disclosure that the claimant relies upon, so the respondent’s objection is that the claimant had no or no reasonable belief that the disclosures tended to show a breach of a legal obligation.

[161]Consideration of the emails provides a straightforward answer to the question. The email to Ms Copley speaks of “highly confidential information”, “blatant breach of employee confidentiality”, a breach of the respondent’s own policy and notes that “the company is required to protect employee’s personal data under GDPR regulations”. He speaks of possibly “raising this with the ICO”.

[162]In his email to Mr Ehzuvan the claimant says “You should also note that I have identified a serious data breach on the part of the company when looking for the Staff Manual. I am awaiting the Whistleblowing policy so I can ensure that this has been reported to the right people. Obviously all of those affected will need to be formally notified of the breach. Please confirm they will be and that you will notify the ICO urgently.”

[163]The claimant is considerably briefer in his email to Mr Ehzuvan than he is with Ms Copley, but it is clear that in his email to Ms Copley he identified multiple possible breaches of legal obligations. In those circumstances the only way in which the respondent can suggest that the claimant had no or no reasonable belief that there had been any breach of a legal obligation is to suggest that the claimant in fact knew that there was no problem with this data but was raising the complaint in a malicious or other bad faith way simply to cause trouble. There is no evidence to suggest this, and we reject it. The second alleged protected disclosure was a protected disclosure. Detriments General Page 45 of 60

[164]For the first two alleged detriments we have to determine whether or not they occurred and whether the claimant’s protected disclosure materially caused them. For the last five alleged detriments they are accepted by the respondent to have occurred and the only question is causation. The first two alleged detriments

[165]The first two detriments are “An alleged decision to take no or no adequate action in response to his grievance of 5 August 2022, or email of 12 August 2022 (which it is agreed between the parties was not a grievance).” and “An alleged decision not to review the Claimant's anticipated redundancy.”

[166]The way in which these are framed makes them somewhat difficult to analyse.

[167]As regards “an alleged decision to take no or no adequate action in response to his grievance of 5 August 2022”, we take this to be the respondent’s decision not to address this as a grievance in its own right but to address it in the context of the redundancy consultation process. To the extent that this was intended as an alleged detriment that the grievance process was not followed, we agree this is made out. There was no grievance process followed. Mr Ehzuvan explained this at the time by reference to the respondent’s processes which say that the grievance procedure does not apply to grievances about dismissal, which essentially is what the claimant’s grievance was. The claimant makes the point that there was the additional element of TUPE, but that was all in support of the claimant’s position on dismissal. In any event, to the extent this decision was taken it was taken in the week following the claimant’s grievance, prior to his second alleged protected disclosure, which is the only disclosure we have found to be a protected disclosure. The reason for this cannot therefore have been a protected disclosure.

[168]As for any question in relation to the email(s) of 12 August 2022, it cannot be said that no or no adequate action was taken. We have already seen that on the day of this email Mr Pilsworth thoroughly investigated the situation and make his own declaration to the ICO. This detriment did not occur. If anything, the claimant’s issue here is that the respondent took too much action in relation to his disclosure of 12 August 2022, eventually leading to his dismissal.

[169]The idea that there was “an alleged decision not to review the claimant’s anticipated redundancy” is somewhat difficult, as with any supposed decision not to do something. No-one has suggested when this decision was not made or when the decision to review the redundancy should have been made. The most we can make of this is that it is in a sense a repeat of the earlier issue that the respondent did not address the claimant’s grievance as a separate issue, and our findings on that apply equally to this alleged detriment. If it is meant that the redundancy process was not continued, we note that the respondent attempted to continue this process but without the claimant’s coPage 46 of 60 operation it could not do so, and any redundancy process was eventually overtaken by the disciplinary process. The instigation of an IT investigation

[170]Each of the final five detriments did occur and are accepted by the respondent to be detriments (subject to the question of dismissal as a detriment). The question is, did they happen “on the ground that the worker has made a protected disclosure”, bearing in mind that it is for the respondent to show the grounds on which they acted and that it is sufficient if the protected disclosure had a material (in the sense of more than trivial) effect on the respondent’s actions.

[171]We understand the reference to “the instigation of an IT investigation” to be a reference to the investigation that uncovered the email the claimant had sent to his personal email address, rather than the initial investigation into the potential data breach. If it is the initial investigation it does not appear to us that that was on the ground that the claimant had made a protected disclosure. Instead, it was an appropriate response to the claimant’s protected disclosure, seeking to address the issue the claimant had raised.

[172]We have given considerable thought to this, and similar issues that arise across the other detriments, since the other detriments flow from this decision to instigate the IT investigation and it seems that the decision to instigate the IT investigation was the crucial element in what followed.

[173]This is what Mr Pilsworth says about commissioning the IT investigation: “Given Mr Robson’s previous delays in responding to my emails on this subject and my concerns about relying on the assurances he had previously given, after sending my email I discussed with our Head of IT what options we had to verify independently whether Mr Robson had further copied or transferred the Data outside the Respondent’s control. I was told that one check that could easily and quickly be undertaken was a targeted search of emails Mr Robson had sent from his work email account to his personal email account. I therefore authorised, in line with the Respondent's relevant Policies, a search of emails sent from Mr Robson’s work email account to his personal email account in the period from 1 August 2022 (when we knew Mr Robson had first accessed the Data) through to 7 September 2022.”

[174]Essentially Mr Pilsworth’s point was that the claimant had been unreliable and evasive in addressing the question of what he had done with the data, and that this warranted further investigation to “verify independently” what he had done with it.

[175]Mr Pilsworth was justified in being suspicious of what the claimant had done or may have done. His email of 12 August 2022 to Ms Copley said “while Page 47 of 60 searching the system earlier today for the BA Pensions Staff Manual … I uncovered a significant amount of highly confidential documentation”. Mr Pilsworth very quickly identified that this was not the first time the claimant had found this material, and there was reason to doubt he had come across it while looking for the staff manual. The claimant spoke of “accidentally access[ing] this information” and it being “shocking that such private information is accessible to anyone at the company”. The attitude that that puts forward is hard to reconcile with Mr Pilsworth’s finding that the claimant had accessed the data multiple times over a week or more and (by one means or another) copied the data across to another folder under his control.

[176]By the time of Mrs Penna’s correspondence with the claimant on 24 August 2022 the respondent had identified that: “The IT records confirm that you first accessed the relevant files on Monday 1 August 2022, then also on Sunday 7 August and on Thursday 11 August. There is no record of you accessing the files on Friday 12 August, and so your statement in your email of 12 August where you have written “whilst searching the system earlier today for the BA Pensions Staff Manual on the internal Sharepoint, I uncovered…” is not supported by the evidence. Our IT records confirm that the first document you accessed was in a sub folder called “BAPSL and BAPIML employment contracts”. We understand that you did so as you were concerned your employment contract might be in there and so it was appropriate to investigate further. However, that sub-folder was contained in a folder titled “Confidential HR Information”. In the sub-folder you accessed, each of file names were clearly titled with the name of the individual concerned. Therefore a search of the index was all you needed to review to check whether your contract was among them, which it was not; you did not need to access or download any of the documents. The records confirm that: 1. On 1 August, you accessed / downloaded the employment contracts for 10 members of staff and other materials containing wider staff data for those related to Project Richmond. 2. On 7 August, you accessed / downloaded the employment contracts for 5 members of staff and other materials containing wider staff data for those related to Project Richmond. 3. On 11 August, you accessed / downloaded the employment contracts for 61 members of staff and other materials containing wider staff data for those related to Project Richmond. Our IT provider has confirmed that the operations you undertook Page 48 of 60 included “FileDownloaded", which is triggered by going to the item and actually selecting “Download”, and saving to a local disk rather than simply viewing the document online through SharePoint.”

[177]The claimant in his protected disclosure had created a completely misleading impression of how he had come across this material. Almost every point he made about how he had come across it was wrong. The impression given by the protected disclosure was that he had accidentally come across that material on 12 August 2022 and was shocked and outraged by what he had found, asking that “the affected employees, past and present, will be informed of this data breach as soon as possible, along with the Trustees of APS and NAPS, and British Airways as applicable.”

[178]In fact the claimant had accessed this material through folders called “Confidential HR Information” and “BAPSL and BAPIML employment contracts” for the first time on 1 August and revisited this twice, but not including the day of his disclosure. He had created his own copy of the material. There was good reason for Mr Pilsworth to think that the claimant was not telling the truth in respect of this, since his investigation had already found multiple reasons to doubt the claimant’s description of matters.

[179]What is then a little more difficult is picking up the process from Mrs Penna’s email of 24 August. She concluded with: “Your confirmation that you will not transfer or process any of the personal data you have discovered is noted. Given the evidence we have that you have downloaded the files, can you please provide written confirmation that you have irretrievably deleted any files that you may have saved locally.”

[180]The claimant provided exactly that confirmation in his email on 5 September 2022: “I confirm that I have irretrievably deleted any and all confidential files related to this matter that were downloaded and saved locally.”

[181]So whatever Mr Pilsworth’s misgivings may have been about the claimant’s approach, and however justified those were, by 5 September 2022 the claimant had done everything that had been asked of him.

[182]That was, apparently, not enough for Mr Pilsworth, since shortly after receiving the assurance that he has asked for he commissioned the IT investigation that is the third detriment.

[183]Mr Pilsworth addresses this in his witness statement: “In his email at 17:23 on 5 September 2022, Mr Robson stated, "I confirm that I have irretrievably deleted any and all confidential files related to this matter that were downloaded and saved locally" ... Given that a month had now passed since he had downloaded the Data, this Page 49 of 60 statement no longer gave the comfort it might have done if it had been forthcoming in mid-August – Mr Robson might have copied the Data elsewhere in which case deleting only those files “downloaded and saved locally” gave no comfort. Mr Robson also failed to give a reasonable explanation for why he had repeatedly accessed the Data. Further, Mr Robson made statements in his email suggesting that the Respondent should be concerned that the Data could have been copied elsewhere: “Can the company be confident that the data, although not downloaded, may have been accessed on screen and photographed, or screen shots taken which may not have registered on the IT auditing software?” ... I considered that this could be read as a veiled threat that Mr Robson had done, or could have done, this. I was becoming increasingly concerned about Mr Robson’s intentions in downloading the Data. There had been high profile cases, such as in relation to Morrisons supermarket, of disgruntled employees downloading employee data and uploading the data onto public filesharing websites ...”

[184]Perhaps it would have been better if the claimant had given this assurance earlier, but given that he was only asked for it on 24 August it seems difficult to see how he could have done this in mid-August. This seems to be the start of a series of matters in which the respondent held against the claimant his failure to do something they had never asked him to do.

[185]The claimant may have copied the data elsewhere, but if this was something that Mr Pilsworth was concerned about the fault seems more to be the question that Mrs Penna asked rather than the response given by the claimant. What is perhaps of more significance is the claimant raising the question of copying of his own motion: “Can the company be confident that the data, although not downloaded, may have been accessed on screen and photographed, or screen shots taken which may not have registered on the IT auditing software?”

[186]What we see here is Mr Pilsworth being so suspicious of the claimant that almost anything the claimant said made matters worse. There was, of course, at least some basis for this, since almost everything the claimant had said about accessing the data turned out to be untrue. We recognise that organisations are entitled to be concerned about such matters.

[187]The question at this point becomes whether there is proper reason to doubt and reject Mr Pilsworth’s explanation for the reason why he commissioned the IT investigation and replace it with a finding that all or part of the reason for this was the claimant having made a protected disclosure.

[188]Having considered this at some length, we do not make that finding. We can see in the correspondence at this point considerable suspicion and ill-feeling on both sides. For the claimant, this had started perhaps as early as learning Page 50 of 60 that investment management was to be outsourced shortly after he started work. It had developed through to the announcement of his redundancy. For Mr Pilsworth, this had developed on finding that the claimant had lied and created a misleading impression of how he had come across the data breach. This suspicion had developed into concerns about what the claimant may have done with the data, given that he had never told the whole truth about it. It was that that prompted the commissioning of the investigation, not anything to do with the claimant having made a protected disclosure. Instigation of the disciplinary investigation and suspending the claimant

[189]Instigating the disciplinary investigation and suspending the claimant happened around the same time – 7-9 September 2022.

[190]This followed on Mr Pilsworth’s discovery that the claimant had forwarded the BlackRock presentation to himself.

[191]It was the claimant’s position in his closing submissions that this and his eventual dismissal were in fact the actions of Mr Ehzuvan, acting through Mr Pilworth, who he ensured was also in on the disciplinary hearing. His position was that Mr Ehzuvan wanted to dismiss him and did so by ensuring Mr Pilsworth was involved in the process so as to guide Mr Hogg and Mr Maynard towards dismissal, perhaps without the conscious knowledge of Mr Hogg and Mr Maynard.

[192]As previously, the question for us is whether the respondent has shown the ground for commissioning the disciplinary investigation and suspending the claimant, and shown that those actions were not materially influenced by the claimant’s protected disclosure.

[193]Mr Pilsworth has explained that the disciplinary investigation followed on from his discovery that the claimant had sent the BlackRock presentation to himself, and we are bound to say that that seems to be the rather inevitable result of that discovery. We do not see how this could be overlooked by the respondent. It is another question whether this should have led to the claimant’s dismissal, but we find that the discovery that the claimant had emailed the BlackRock presentation to himself was what caused the instigation of the disciplinary process, and that this was nothing to do with his protected disclosure.

[194]As for the suspension, this too seems to us to be inevitable on the discovery of the claimant’s apparent breach of confidentiality, since it was the most effective way of ensuring no further risk of breach of confidentiality during the investigation of the matter. This was nothing to do with the claimant’s protected disclosure. The decision to dismiss the claimant Page 51 of 60

[195]Subject to questions about whether dismissal can amount to a detriment when plead as a claim against an individual other than the employer (which does not arise in this case), s47B(2) prevents the claimant alleging that his dismissal is a detriment. Dismissal has to be considered under the separate provision of s103A. The decision to dismiss the claimant’s appeal against dismissal

[196]This decision was ostensibly made by Mr Maynard, although as with Mr Hogg’s ostensible decision to dismiss, the claimant says that it was subject to manipulation by Mr Ehzuvan with the assistance of Mr Pilsworth.

[197]When this point was put to Mr Maynard he was clear: as chair of the board he was Mr Ehzuvan’s boss, Mr Ehzuvan was not his boss. We accept this, and do not see that Mr Maynard’s decision was inappropriately influenced by Mr Ehzuvan nor was it anything to do with the claimant’s protected disclosure. Mr Maynard has given a proper explanation of the reasons for his decision on the appeal, which we accept. Dismissal The reason for dismissal

[198]The dismissal of the claimant is central to his claim. We will need to consider first what the reason for the dismissal is. That is, what was the “set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee” (Abernethy v Mott, Hay and Anderson

1974 ICR 323

). If the reason or principal reason for dismissal is the claimant’s protected disclosure, then that dismissal is automatically unfair. If the reason for dismissal is, as the respondent says it is, a reason relating to the claimant’s conduct, we will need to go on to consider whether the claimant’s dismissal was unfair under s98(4).

[199]There is, in this case, admitted misconduct: the sending of a confidential document or documents by the claimant to his personal email address. The investigation report works through various policies and contractual documents (that we do not think are disputed by the claimant) suggesting that such action could be viewed by the respondent as gross misconduct and lead to dismissal without notice. But it is well established that just because something could be gross misconduct should not automatically lead to a decision that the individual should be dismissed, and the fact that there has been misconduct that could qualify as gross misconduct does not necessarily mean that that was the reason for a claimant’s dismissal.

[200]The claimant’s case, as we understand it, is less that Mr Hogg was consciously aware of and motivated by his protected disclosure(s) in coming to his decision, and more that, similar to Jhuti or Singh, he was manipulated into making the findings he did by Mr Ehzuvan operating through Mr Page 52 of 60 Pilsworth.

[201]There is no suggestion of this in Mr Hogg’s witness evidence, nor do we see any suggestion of this in the notes of the disciplinary hearing and the lengthy disciplinary outcome letter. It is true that Mr Pilsworth was present at the disciplinary hearing, but it is not unusual for the investigator to be present at such a hearing. We note that Mr Ehzuvan was originally intended as the disciplinary officer but that following the claimant’s protests Mr Hogg was substituted as a disciplinary officer.

[202]It is the claimant’s case that the disciplinary officer should not have been either Mr Ehzuvan or Mr Hogg, but should have been “a fully independent chair”, that is “an external chair with no connection to the Company”. It seems to us that it will only be in very limited cases, if at all, that fairness requires the appointment of a “fully independent chair”, and in cases where that is done the independence of the chair is often called into question, given that they will almost always be appointed and paid for by the employer. We do not see any need for a “fully independent chair” in this case, nor do we see that the failure to appoint one suggests that the respondent was eager to have someone appointed who could be relied upon to make their decision in a particular way.

[203]As for Mr Pilsworth’s attendance at the meeting, as we have said it would be common for the investigator to attend such a hearing and we do not see that Mr Pilsworth doing so casts doubt on the fairness of the decision or suggests that there is some other reason for the dismissal.

[204]The claimant criticises other aspects of the hearing he received. He says that he considered the policies in question to be “very broadly worded, in such a way that almost any staff conduct could be regarded as misconduct if argued as such” and that it appeared that “the protection of the Company is much more important than employee rights”. This may be a point that goes to the fairness of the decision to dismiss, but it does not suggest that the reason for dismissal is something other than what the respondent says it is.

[205]Having reviewed the notes of the hearing, the claimant’s criticism of the hearing and the outcome letter, we are satisfied that the reason for the dismissal is as Mr Hogg says it is – the claimant’s conduct in sending confidential information to his personal email address. Fairness generally

[206]There is something to the claimant’s criticism that the respondent’s policies (in common with many employers’ policies) identify a wide range of behaviours that could constitute gross misconduct. But most employers (and we include the respondent in this) would be entitled to view an employee sending confidential information to their personal email address as being gross misconduct. With the claimant having admitted misconduct the focus must fall on why it is that Mr Hogg considered this to warrant immediate dismissal, Page 53 of 60 given that gross misconduct does not require a dismissal and that we must make our decision “in accordance with equity and the substantial merits of the case”.

[207]There are two striking points that the claimant makes in his witness statement. The first is that “Mr Hogg concluded that gross misconduct had occurred because, although I deleted the email in question, I did not write to BAPSL to tell them this”. This comes from one of the bullet points Mr Hogg sets out in his decision letter, under the heading “in reaching my decision, I have taken account of the following”: “On 12 September you wrote to explain your actions relating to the BlackRock document but you neglected to tell the Company you had deleted this document. Instead, you said you thought the Company would have assumed you had deleted them when it advised you they were confidential. In my view this not only undermined the Company's trust in you but also, in my view, engendered suspicions on what you intended to do with the data.”

[208]“Suspicions on what you intended to do with the data” may have played a role in the investigation and initiation of the disciplinary process, but by the time of the claimant’s dismissal Mr Hogg had a full opportunity to establish what the claimant had done with the data (essentially nothing) so it is surprising that this appears as a matter that was taken into account in reaching his decision.

[209]In similar terms we have this as a matter taken into account: “In mitigation, you stated that you quickly realised you had made a mistake in sending the BlackRock document to your personal email. However, I can see no evidence that you admitted that to the Company at the time. In fact, you waited until the hearing to suggest this. You did not provide any evidence that the BlackRock document was deleted and/or when the BlackRock document was deleted …”

[210]It is certainly true that the claimant did not acknowledge the sending of the email or that it was a mistake prior to being confronted with it, but as the claimant points out he provided a detailed explanation of what he had odne the day after being suspended, and as the claimant points out it is difficult to see how the claimant could provide evidence (other than his own word) that the document had been deleted.

[211]These points seems to culminate in the passage we have previously cited, and that the claimant relies on as demonstrating unfairness, where Mr Hogg says: “At the hearing you did make it clear for the first time that you do accept that your actions were a mistake but you didn't go as far as to say you wouldn't do it again despite you being given every opportunity Page 54 of 60 to make this point. As such I have no confidence that you would not conduct a similar breach in the future and so do not believe that a lesser sanction would be appropriate.”

[212]As the claimant points out, “at no point did Mr Hogg ask me if I would do it again.”

[213]There is, as we have previously identified, something of a theme of the respondent holding against the claimant his failure to do something he had never been asked or required to do. This seems to us to be a serious instance of unfairness in the decision to dismiss him, particularly where the claimant’s failure to say something he had never been asked to say led Mr Hogg to have “no confidence that you would not conduct a similar breach in the future” and get to the point of saying that because of this he “[did] not believe that a lesser sanction would be appropriate”. The failure of the claimant to say something he had never been asked to say thus led Mr Hogg to rule out anything other than dismissal as the appropriate sanction.

[214]We should say that we regard this point as a substantial point of unfairness in respect of the claimant’s dismissal for misconduct, but not as something that casts doubt on conduct as being the reason for his dismissal. For each of the passages we have cited above, the focus is on the claimant’s conduct, not on anything else.

[215]There was, of course, an appeal, and as we have cited above lest there be any doubt on the matter the claimant in his appeal letter said that there would be no repeat of his misconduct. This was not so much because he had been asked the question. He still had not, but he was addressing the point held against him that he had not volunteered that he would not do it again. Any doubt on this point was removed in his appeal letter, which thereby removed the point that Mr Hogg said had meant that a lesser sanction was not appropriate.

[216]But we see no real exploration of that in Mr Maynard’s appeal decision. The claimant’s dismissal was unfair because Mr Hogg took into account matters that the claimant had not been asked about as apparently making the difference between dismissal and a sanction short of dismissal. This was not remedied on appeal. Remedy issues to be addressed at this hearing Polkey

[217]Amidst all of this, it is easy to lose sight of the fact that the claimant’s problems started with the respondent’s decision that they were going to reduce the number of investment specialists from two to one.

[218]We have found that what followed from that was the announcement by the Page 55 of 60 claimant’s manager of his redundancy, without any proper consultation about that redundancy. Nevertheless, the underlying rationale for the decision to dismiss the claimant as redundant remains. The respondent has decided to have one investment specialist rather than two, and in making that decision has decided that the one to be retained is the one with actuarial experience and qualifications, rather than the claimant. We see the prospect of that acknowledged and anticipated by the claimant in one of his Teams messages cited above.

[219]As well as the question of redundancy dismissal, the respondent has two other arguments as to what would have happened if a fair process had been followed. The first is that the claimant could and would have been dismissed for breach of the rules on travel concessions. We reject that argument, since based on our factual findings the claimant had the necessary permission to exercise his travel concessions during sick leave, so there could be no question of him being dismissed for breach of the rules.

[220]As for the question of the claimant’s misconduct, we will address that through the more general question of contributory fault.

[221]But the problem that the claimant was facing a dismissal by reason of redundancy seems to us to be unanswered and unanswerable by him. If he had been given a sanction short of dismissal in respect of his misconduct (as we find Mr Hogg would have done if he had addressed the matter properly) attention would have reverted to his possible dismissal as redundant. The respondent, having announced his dismissal, was at the time attempting to remedy matters through some form of redundancy consultation, which would have had to take into account the claimant’s grievance. A fair process then would have acknowledged that his redundancy had been dealt with unfairly in its initial announcement, but would have then been back to revisit the decision and, following proper consultation, made the same decision, that the claimant should be dismissed as redundant. That seems to us to be inevitable given the respondent’s cost saving plan and the contrast in skills between the claimant and his colleague. We consider that this process would have taken a further six weeks from the date the claimant’s employment was actually terminated, following which the claimant was bound to have been dismissed as redundant. Such dismissal would, of course, have been on notice in contrast to his immediate dismissal for gross misconduct. Contributory fault

[222]The claimant himself accepted in closing submissions that some deduction would have to make for contributory fault. He suggested a 25% deduction. We consider that the deduction needs to be greater than that to reflect the full degree of the claimant’s contribution to his dismissal, and that the appropriate figure is 50%. In making this deduction and a Polkey deduction we are not deducting twice for the same misconduct, since the Polkey deduction is in Page 56 of 60 respect of the claimant’s fair dismissal for redundancy, not misconduct.

Conclusion

[223]The claimant was unfairly dismissed, but his dismissal was not by reason of having made protected disclosure(s) nor was he subject to detriments for having made protected disclosure(s). If he had not been unfairly dismissed he would have continued in employment for six weeks following which he would have been dismissed (with notice) fairly by reason of redundancy. His basic and compensatory award will be reduced by 50% to reflect the his contribution to his dismissal and his conduct before dismissal. E. NEXT STEPS

[224]We hope that in the light of the findings we have made in respect of Polkey and contributory fault the parties will be able to reach agreement on the appropriate amount of any remedy, but if they are not able to do so the case management hearing will proceed as previously arranged on the morning of 8 September 2025 for the purpose of setting up a remedy hearing. Approved by: Employment Judge Anstis Date: 30 June 2025 3 July 2025 ...................................................................... Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/ Page 57 of 60 APPENDIX – LIST OF ISSUES Automatic unfair dismissal and detriment: whistleblowing

[1]The Claimant relies on the following alleged Protected Disclosures: First alleged Protected Disclosure(a) In the Claimant’s grievance dated 5 August 2022, the alleged statements: (i) That the Respondent had already closed its mind to the prospect of the Claimant's on-going employment; (ii) That the company had failed to comply with its lawful obligations under TUPE (with regard to his individual role); That there was no genuine redundancy situation, and that there had been no consultation, pooling or scoring carried out. Second alleged Protected Disclosure

(b) On 12 August 2022, in emails to Ms. Copley at 11.13am and to Mr. Ehzuvan at 11.57am (which it is agreed were not grievances), that the Claimant had identified a breach of GDPR requirements.

[2]It is accepted that the Claimant made the points alleged at 1(a) and 1(b).

[3]If so, did they constitute protected disclosures within the meaning of section 43A of the Employment Rights Act 1996 ("ERA 1996")? In particular, in each case did the Claimant make disclosures:(a) Which were a disclosure of information in accordance with s.43B ERA; These are in dispute as set out in the Grounds of Resistance.

(b) That he reasonably believed tended to show one or more of the categories of wrongdoing set out at section 43B (a)-(f) ERA 1996? The Claimant's case is that he reasonably believed the alleged disclosures "tended to show a contravention of ERA 1996, TUPE 2006, and/or a breach of the implied term of trust and confidence" and "a breach of GDPR requirements"; and These are in dispute as set out in the Grounds of Resistance.

(c) Which he reasonably believed were made in the public interest? These are in dispute as set out in the Grounds of Resistance. The Respondent's position with respect to the 5 August grievance is set out in the Amended Grounds of Resistance. In respect of the 12 August emails, it is the Respondent's position that these did not constitute protected disclosures because the Claimant had no belief – of if he did, such belief was not reasonable – that they tended to show any wrongdoing.

[4]If the Tribunal finds that the Claimant made a qualifying disclosure, it is accepted that it was a protected disclosure, having been made to the Claimant's employer.

[5]The Claimant was dismissed by the Respondent. In so far as the Claimant made any protected disclosures, was the reason (or if more than one the principal reason) for the Claimant’s dismissal that he made a protected disclosure(s) under s.103A ERA?

[6]The Claimant relies on the following alleged detriments (taken from paragraph 21 of the Grounds of Claim): Page 58 of 60(a) An alleged decision to take no or no adequate action in response to his grievance of 5 August 2022, or email of 12 August 2022 (which it is agreed between the parties was not a grievance).

(b) An alleged decision not to review the Claimant's anticipated redundancy.

(d) The instigation of the disciplinary investigation.

(e) Suspending the Claimant.

(f) The decision to dismiss the Claimant.

(g) The decision to dismiss the Claimant's appeal against dismissal.

[7]In each case, did the Respondent as a matter of fact, do the things alleged? In respect of items 6(c), 6(d) and 6(e), 6(f) and 6(g) above, it is accepted that the Respondent did do these things. In respect of items 6(a) and 6(b), these are denied.

[8]If so, it is accepted that they amount to a detriment(s) within the meaning of s.47B ERA.

[9]If so, was the detriment on the ground that the Claimant had made a Protected Disclosure(s) under s.47B ERA?

[10]Is the Claimant prevented from bringing a claim under this section in respect of any allegation by virtue of s.47B(2) ERA? Ordinary unfair dismissal

[11]What was the reason (or principal reason) for the Claimant’s dismissal? [The Respondent relies on the Claimant’s conduct in him sending the BlackRock Presentation, including the Pricing Information, to his personal email address as set out in paragraph 79 of the Grounds of Resistance]

[12]Was it a potentially fair reason under section 98 ERA 1996? [The Respondent relies on conduct]

[13]If so, in all the circumstances (including the size and administrative resources of the Respondent) did the Respondent act reasonably in treating the Claimant’s conduct as a sufficient reason for dismissal? In particular:(a) Did the Respondent believe that the Claimant was guilty of the misconduct relied on;

(b) Did the Respondent have reasonable grounds for that belief;

(c) At the time that the Respondent formed any such belief on these grounds, did the Respondent conduct such investigation into the matter as was reasonable in all the circumstances;

(d) Was dismissal within the range of reasonable responses, including considering the matters set out in paragraph 24(iv) of the Particulars of Claim;

(e) Was the dismissal procedurally fair? Remedy

The hearing

[14]In the event that the Claimant succeeds in any of his claims, to what compensation is he entitled? Page 59 of 60

[15]With respect to the detriment claims:a. What, if any financial losses has the Claimant suffered?

b. To what level of Injury to Feelings Award is the Claimant entitled?

c. Personal injury, to the extent recoverable in the Tribunal.

[16]With respect to the Unfair Dismissal claims:a. To what level of Basic Award is the Claimant entitled?

b. Should any adjustment by made to the Basic Award for the Claimant’s conduct pursuant to s.122(2) ERA? If so, by what amount?

c. To what level of Compensatory Award is the Claimant entitled? In determining this issue the Tribunal will determine: i. Would the Claimant have been dismissed fairly in any event, by reason of redundancy or otherwise? If so, when and with what impact on compensation? ii. Would the Claimant have left the Respondent voluntarily in any event? If so, when and with what impact on compensation? iii. If the Tribunal finds that the Claimant’s dismissal was unfair because of some procedural defect, would the Claimant have been fairly dismissed if a fair procedure had been applied? If so, when, and how should any compensation due to the Claimant be adjusted? iv. Should any adjustment be made to the Compensatory Award for the Claimant’s conduct pursuant to s.123(6) ERA? If so, by what amount? v. Has the Claimant taken reasonable steps to mitigate his losses? If not, over what period should the Claimant be compensated for? vi. Should any adjustment to the Compensatory Award be made for an unreasonable failure to follow the ACAS Code, pursuant to s.207A TULRCA? If so, by what amount? vii. Does the ‘statutory cap’ apply to the Compensatory Award? S.124 ERA. If so, what is the level of the cap? viii. Was any Protected Disclosure made by the Claimant, made in good faith? If not, should any Compensatory Award due to the Claimant be adjusted and if so by what amount? S.123(6A) ERA.

[17]Had the Respondent known about the Claimant's 29 September and 3 October flights to/from Barbados at the time they were booked:(a) Would it have taken disciplinary action?

(b) If so, what would the outcome of that disciplinary action have been?

(c) What, if any, is the impact of this conclusion on any compensation due to the Claimant? (Applying the principles of Devis v Atkins

[1977] AC 931

and s. 123 Employment Rights Act). Page 60 of 60 JUDGMENT (on reconsideration) The claimant’s application for reconsideration of the tribunal’s judgment of 30 June 2025 is refused on the basis that there is no reasonable prospect of the judgment being varied or revoked.

Conclusion

[1]The claimant made an application for reconsideration of the tribunal’s judgment on 12 July 2025. The judgment was sent to the parties on 3 July 2025 so the application is made within time.

[2]Rule 68(1) provides that “the tribunal may … on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so”.

[3]Where an application for reconsideration is made within time, the application comes to me for initial consideration under rule 70(1) & (2), including consideration of whether there is no reasonable prospect of the judgment being varied or revoked.

[4]Our judgment found that the claimant had been unfairly dismissed, and we do not think that the claimant is asking for this to be revoked. The point of the reconsideration application seems to be in respect of our dismissal (at para 5 of the judgment) of the claimant’s claim that he was subject to dismissal for having raised protected disclosures, and in our finding that the claimant was 100% likely to have been dismissed by reason of redundancy within six weeks.

[5]On the first question, under reconsideration reason 1 the claimant speaks of communications between the chief executive of the respondent and the chairs of his hearings, saying that: “… the Respondent’s only possible motivation for informing the chairs of both the disciplinary hearing and the appeal hearing about the protected disclosure … was to influence their mindset and decisions …”

[6]Reconsideration reason 2 is that “the judgment lacked acknowledgement of the key fact that, from the moment the respondent discovered the claimant had sent the BlackRock document to himself, there was no concern shown for the document.”

[7]Reconsideration reason 3 is that “in this case, several colleagues accessed the personal data that led to the protected disclosure”.

[8]As for the Polkey deduction, the claimant says “there is no evidence that the respondent was ever willing or able to engage in a legal and fair redundancy process”, “if the respondent had engaged in a legal and fair process … options such as job sharing, alternative work, voluntary redundancy and part-time arrangements could have been discussed and considered”, “… a fair process would have included a scoring exercise …” and “the claimant didn’t have sufficient opportunity to make an appropriate counter-argument against the application of a Polkey reduction”. The claimant also makes points concerning the hearing of his grievance.

[9]The EAT considered the tribunal’s jurisdiction to reconsider a judgment in the case of Ebury Partners UK Limited v Acton Davis

[2023] EAT 40

. Drawing on rule 70, HHJ Shanks said: “The employment tribunal can … only reconsider a decision if it is necessary to do so “in the interests of justice.” A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a “second bite of the cherry” and the jurisdiction to reconsider should be exercised with caution. In general, while it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party had been denied a fair and proper opportunity to present his case, the jurisdiction should not be invoked to correct a supposed error made by the ET after the parties have had a fair opportunity to present their cases on the relevant issue. This is particularly the case where the error alleged is one of law which is more appropriately corrected by the EAT.”

[10]No question of a “procedural mishap” arises in relation to the application for reconsideration of our decision to dismiss the claimant’s claim that the reason or main reason for his dismissal was a protected disclosure. The claimant’s position is that our reasons do not address three points he considered to be of significance. Although the claimant does not put it this way, the challenge is to the adequacy of our reasons. An employment tribunal is not obliged to include in its reasons and address every point raised by a party. If the claimant considers that our reasons are so inadequate as to amount to an error of law his remedy is by an appeal, not by an application for reconsideration.

[11]Much of the claimant’s argument on the Polkey point is to the effect that the respondent had previously shown itself either unable or unwilling to carry out a dismissal in a fair manner, so any consideration premised on the respondent acting in a fair manner was bound to be flawed. Essentially his argument is that a respondent that has not previously shown any inclination towards fairness in dismissal could not and should not be assessed on the basis that it would act fairly. As referred to in our decision, the Polkey analysis proceeds on the basis of what would (or might) have happened if this particular employer had acted fairly. That is an appropriate question to ask, and we do not think it is any answer to that to say that the particular employer is incapable of or disinclined to act fairly. We have to assess “what if” they had acted fairly. We have gone on in our decision to assess what we think would have happened if the respondent had acted fairly. A scoring exercise in the manner referred to by the claimant is not an essential element of fairness in the circumstances we have described in our decision.

[12]The question of a “procedural mishap” is raised by the claimant in his reconsideration application in respect of Polkey. He says that “given that the claimant was unrepresented during the hearing, the time limits imposed and the focus on other areas of the case, the claimant didn’t have sufficient opportunity to make an appropriate counter-argument against the application of a Polkey reduction”. It will always be a matter for the discretion of a party or representative what is and is not emphasised in their closing submissions, and how they use their time for closing submissions. My notes of the hearing do not suggest that the claimant asked for additional time for his closing submissions, nor that any such request was denied.

[13]In those circumstances I consider that the claimant’s application for reconsideration gives rise to no reasonable prospect of the judgment being varied or revoked, and I refuse it under rule 70(2). Approved by

Remedy

[1]On 26 July 2025 the claimant made an application for a Preparation Time Order. That was made within the time limit set out in rule 75(1).

[2]This was presented as an application for a Preparation Time Order, and the “Schedule of Preparation Time” attached to it makes it clear that it is intended as an application in respect of preparation time as defined in rule 72.

[3]The claimant invited the tribunal to consider the application on the papers.

[4]At paragraph 2 & 3 the claimant invoked the tribunal’s jurisdiction under rule 78, which applies in respect of “wasted costs”.

[5]Having regard to the definitions at rules 2(1), 72 and 78(5), I have decided that a wasted costs order can only apply in respect of “costs” or “wasted costs” as defined, and not preparation time. Accordingly to the extent the claimant intended his application to be an application under rule 78 it is not within the jurisdiction of the tribunal and is dismissed.

[6]Consideration will be given at the forthcoming preliminary hearing to the appropriate way of addressing the claimant’s application for a preparation time order, and whether this requires consideration by the full tribunal or the employment judge alone under the Presidential Guidance on Panel composition. Approved by