Mr R Yeates v Polestar Holdings Ltd and Others: 3303401/2022 and 3310388/2023
EMPLOYMENT TRIBUNALS
Case No 3303401/2022, 3310388/2023
Between
Mr R Yeates Respondents (claims 1 and 2): Polestar Holdings Limited (1) Mr I Russell (2) Mrs N Borman (3) Mrs T Russell (4)ClaimantPolestar Holdings Ltd and OthersRespondent
Before
Employment Judge HawksworthDate 11 April 2025
JUDGMENT
[1]At the material times, the claimant was employed by Polestar Holdings Limited. Polestar Holdings Limited is substituted under rule 35 of the Employment Tribunal Procedure Rules 2024 as the first respondent to claim 2, in place of Polestar Financial Planning Limited.[2]The complaint of ‘ordinary’ unfair dismissal is well-founded and succeeds against the first respondent.[3]The complaint of wrongful dismissal (in respect of notice) succeeds against the first respondent. 1 of 65[4]The first respondent failed to give the claimant a written statement of particulars of change as required by section 4 of the Employment Rights Act 1996.[5]The claimant’s other complaints fail against all respondents and are dismissed[6]The claimant’s claim having succeeded in part, a remedy hearing has been scheduled. Case management orders for that hearing will be sent separately.
REASONS
Conclusions
[1]The claimant was employed as a financial adviser from 5 March 2018 until his summary dismissal on 24 December 2021. His complaints include whistleblowing detriment and dismissal, and age discrimination in relation to his dismissal and matters leading up to it.[2]Case number 3303401/2022 (‘claim 1’) was presented on 16 March 2022. Case number 3310388/2023 (‘claim 2’) was presented on 17 August 2023. The two claims concern related issues of fact and law and are being heard together.[3]The respondents defend the claims and say that the claimant was dismissed for misconduct. The first respondent was the claimant’s employer. The second and fourth respondents are directors of the first respondent. The third respondent is the practice manager of the first respondent. The liability hearing[4]The liability hearing in this case was heard in parts over a long period from 13 July 2023 to 29 October 2024. Unfortunately, the hearing had to be paused on several occasions:4.1 The main hearing in claim 1 was first listed for 6 days to take place in July 2023. The hearing was originally listed to deal with liability and remedy. This hearing had to be reduced to 5 days for judicial resourcing reasons. The hearing went ahead on 13 and 14 July 2023 but the remaining three days had to be postponed because of the unforeseen ill health of one of the members of the tribunal;4.2 A further three days were listed for 13 to 15 November 2023. The hearing could not be rearranged for any earlier date because of the availability dates of the parties, representatives, witnesses and the panel. The hearing went ahead on 13 November 2023 but the remaining two days had to be postponed because one of the members of the tribunal had a sudden bereavement;4.3 A further two days were listed for 9 and 10 April 2024. Regrettably the tribunal administration did not notify the parties of these dates so they did not attend. The tribunal made case management orders and arranged for the hearing to be relisted again; 2 of 654.4 Another hearing day was listed for 31 July 2024. Finding available dates for the tribunal and all parties and representatives was difficult, so this date was listed as a single hearing day, with further dates to follow in October. The parties attended the hearing on 31 July 2024 but the main hearing could not proceed on this date because the claimant had not had sufficient time to consider 183 pages of late disclosure which had been served by the respondent two working days before. We converted this hearing day to a case management hearing and made case management orders, including an order that claim 2 should be heard with claim 1. We decided that the main hearing would deal with liability only, and we listed a separate remedy hearing.4.5 Three more hearing days were listed for 3, 28 and 29 October 2024. We listed a reading day for the panel on 30 September 2024 and a deliberation day for the panel on 8 November 2024. Those days all went ahead as planned.[5]At the hearing on 31 July 2024 the respondent withdrew its defence of the complaint of ‘ordinary’ unfair dismissal, conceding in light of the late disclosure that the decision to dismiss the claimant was made before the disciplinary hearing took place. We listed a remedy hearing.[6]At the panel reading day on 30 September 2024, because of the length of time which had passed since the previous hearing days, we re-read the witness statements and the judge’s notes of the evidence of the witnesses we heard in July and November 2023. We also read the supplemental statements. Documents and witness evidence[7]The parties had agreed a bundle of documents for the liability hearing. Some changes to the bundle were made as the hearing progressed, up to July 2024. The final version of the agreed main bundle went up to page 769, but there were 898 pages in the electronic version, because some pages were interleaved (for example page 207A). We refer to this as the main bundle. Page references in this document are to this main bundle, using the hard copy page numbers, that is the page numbers printed at the bottom of each page.[8]The claimant provided two supplemental bundles. The first went up to page 33. The second (supplemental bundle B) went up to page 37. The respondent did not object to the inclusion of these documents. We refer to pages in these bundles as SB[page number] and SBB[page number].[9]The claimant and the respondents had helpfully prepared a chronology which was substantially agreed and which identified areas of factual dispute between the parties.
The Issues
[10]We heard from the following witnesses on the following days: Date Witness 13 and 14 July 2023 Claimant 13 November 2023 Mrs Borman 3 of 65 Ms Wales (not completed) 3 October 2024 Claimant (recalled in relation to late disclosure, and evidence on claim 2) 28 October 2024 Ms Wales (completed) Mrs Beaumont Mrs Russell Mrs Borman (recalled in relation to late disclosure) Mr Russell (not completed) 29 October 2024 Mr Russell (completed)
Findings of fact
[11]All the witnesses had prepared and served witness statements. The claimant and Mr Russell both prepared supplemental statements dealing with issues arising from the late disclosure and with the second claim.[12]After the evidence, both parties’ representatives made written and oral closing comments.[13]The tribunal reserved judgment. The judge apologises to the parties and their representatives for the delay in promulgation of this reserved judgment. This was because of the volume of evidence and the large number of issues for consideration in the case. The complaints and issues[14]The complaints and issues in both claims are set out in the appendix to these reasons. There are a large number of complaints and the issues for us to determine are lengthy, covering 15 pages.[15]The complaints and issues in claim 1 were identified at a preliminary hearing on 30 November 2022 (page 54). The complaint of ordinary unfair dismissal has now been conceded by the first respondent.[16]The complaints and issues in claim 2 were identified at the preliminary hearing on 31 July 2024 (page 762). An overarching question arose about the identity of the claimant’s employer and this was also added to the list of issues at the preliminary hearing on 31 July 2024.
Findings of fact
[17]We make the following findings of fact. We do not attempt to summarise here all of the evidence we heard and read over the course of the hearing. We record our findings of fact on those matters which we found most helpful to decide the remaining issues of dispute between the parties. Original contract of employment (claim 1 issue 16 and claim 2 issue 1)[18]The claimant is a financial adviser. His continuous employment with the first respondent began on 5 March 2018. He was aged 66 at the time. 4 of 65[19]At the time the claimant joined, his employer was a partnership called ‘Polestar’. Polestar was a member of a financial services network, Quilter Financial Planning Solutions Limited (‘Quilter’). Polestar was authorised to provide financial services via its membership of the Quilter network; its regulatory requirements were overseen by Quilter. Quilter itself was authorised and regulated by the Financial Conduct Authority.[20]The parties agreed that in the financial services sector age is often seen in a positive light by clients, as it can be linked with experience and clients like to feel that their adviser has plenty of experience. The claimant felt that the majority of his clients were comfortable with his age.[21]On 21 May 2018 Polestar gave the claimant a contract of employment which said it contained the information required to comply with the provisions of the Employment Rights Act 1996 (page 87). The name of the employer was ‘Polestar’. The contract said that the claimant would be automatically enrolled into the pension scheme if eligible and that further information was set out in the employee handbook (page 90).[22]We find that the claimant was given a copy of the employee handbook at the time of his induction.[23]Neither the claimant nor the respondent signed the contract at this time.
The law
[24]On 14 March 2019 two limited companies were incorporated: Polestar Holdings Limited (named as the first respondent in claim 1) and Polestar Financial Planning Limited (named as the first respondent in claim 2). We find that in about April 2019 the claimant’s employment (along with the employment of all other employees of Polestar the partnership) transferred (page 633). We find that the claimant’s employment transferred to Polestar Holdings Limited (the first respondent in claim 1) not Polestar Financial Planning Limited (the first respondent in claim 2). We make this finding based on the claimant’s payslips (page 306) and the evidence of the second respondent, Ian Russell, a director of the first respondents. We refer to Polestar Holdings Limited as ‘the first respondent’.[25]The claimant was not given a written statement containing particulars of the change of his employer from Polestar the partnership to Polestar Holdings Limited.[26]At about this time Colin Last, another financial adviser, left the first respondent and the claimant took over his clients. The claimant was unhappy about the way the handover was dealt with by the respondents, and by comments made by Mr Russell which he felt reflected badly on him. Annual review and pay rise[27]On 12 November 2019 the claimant had an annual review meeting with Mr Russell.[28]The annual review was very positive. No performance concerns were raised. Mr Russell sent an email to the claimant on 16 November 2019 to summarise the discussion (page 133): 5 of 6528.1 He thanked the claimant for his considerable efforts and said he was a valuable part of the team;28.2 He confirmed that the claimant was to have a 7% pay increase backdated to March 2019 to reflect his efforts;28.3 He said that they had discussed having a reshaped bonus structure approach in the claimant’s contract, and asked the claimant to leave this with him;28.4 He apologised for the way the handover of Colin Last’s clients to the claimant had been dealt with and for his comments which he accepted were clumsy.[29]Following this meeting, the claimant and Mr Russell both signed the claimant’s original contract of employment (page 93).[30]At about this time Kyri Stavri, another financial adviser, left the first respondent and the claimant took over his clients. By this point, other than Kevin Stannard, a financial adviser who worked mainly with his own clients, the claimant was the only active adviser working for the first respondent. Question about retirement (claim 1 issues 9.2.1, 10.1, and 11.1.1)[31]In about June 2020 Mr Russell and the claimant had a discussion about retirement. The claimant was 69 at the time of this conversation. The background to the discussion was that the claimant told Mr Russell that his partner was going to retire in July 2020. Mr Russell wanted to know whether there was a possibility of the claimant also retiring, or wanting to reduce his hours, which would mean the first respondent having to reorganise or employ other staff. Mr Russell asked the claimant, ‘So when are you thinking of retiring Rob?’. The claimant said that he was not planning to retire any time soon or to go part time. He said in the event he wanted to leave, he would give the respondents adequate time to find a suitable replacement and continue to service clients.[32]The claimant was not offended by being asked on this occasion about his retirement plans. He thought Mr Russell just wanted to understand whether another financial adviser would be leaving, as there had been two recent departures. New financial adviser[33]In mid-2020 the claimant introduced another financial adviser called Hywel Rees to the first respondent. The claimant had worked with Mr Rees before. Mr Rees had to undertake an initial competency assessment with Quilter as part of the standard regulatory requirements.[34]In September 2020 Mr Rees passed the assessment and became a qualified adviser for the first respondent. He began taking on clients. Some of the claimant’s clients who lived near to Mr Rees were transferred to Mr Rees.[35]When Kevin Stannard left in about March 2021, some of his clients were passed to Mr Rees as well. We find that this was because Mr Rees had only been taking on clients for about 6 months and was still building up a portfolio of clients, while the claimant had more clients because he had been the first respondent’s only active adviser for around 15 months. 6 of 65 Proposed new contract[36]On 23 February 2021 Mr Russell sent the claimant a draft new contract (page 135 and 96). This followed on from the proposed reshaped bonus structure approach which had been discussed by Mr Russell with the claimant at the performance review in November 2019. The draft new contract was also sent to Mr Rees (page 437).[37]The draft contract named the claimant’s employer as Polestar Financial Planning Limited.[38]Discussions about the proposed new contract went on for some months. Concerns raised about the claimant[39]In March 2021 Sharon Wales and Natasha Beaumont, two colleagues of the claimant, raised some concerns about him. Ms Wales was a financial administrator and Mrs Beaumont the client liaison manager. Both worked in roles supporting the claimant. Ms Wales and Mrs Beaumont had noticed that the claimant was getting confused and forgetful about some cases and was having difficulties navigating the client management spreadsheet despite being taken through it several times. They reported this to the first respondent’s operations manager who emailed Mr Russell about it (page 140).[40]We find that Ms Wales and Mrs Beaumont raised these matters because they were genuinely concerned about the claimant, in particular about the impact of the covid lockdowns on him. They were not making inappropriate assumptions about the claimant based on his age.[41]Mr Russell replied to say that he would need detail or evidence if he was to raise this with the claimant. He suggested that Ms Wales and Mrs Beaumont see how things progress, and report any concerns to Nicola Borman, the first respondent’s practice manager and the third respondent. No further concerns were raised about this issue.[42]Ms Wales and Mrs Beaumont spoke to Mrs Borman at around this time about a different matter. They were concerned that the claimant had been making negative comments about the first respondent and about Mr Russell. They did not want to make any formal complaint. Mrs Borman told them to try and ignore the comments but that if the situation persisted and continued to cause concern, they should inform her and she would seek HR advice. No-one spoke to the claimant about these concerns. Second question about retirement (claim 1 issues 9.2.2, 10.1, and 11.1.2)
Conclusions
[43]In about June/July 2021 Mr Russell again asked the claimant when he intended to retire. The claimant said again that he was not interested in retiring and that, health permitting, he intended to continue working until at least age 75.[44]Mr Russell was not expecting or encouraging the claimant to retire because his partner was retiring. We find that both Mr Russell’s questions to the claimant about 7 of 65 possible retirement were for planning reasons, to ensure the business was aware of any future need to reorganise or employ more staff. Mr Russell asked other staff, including Mrs Borman and Mr Rees about their retirement plans. Neither of the questions were asked of the claimant because of any desire on Mr Russell’s part for the claimant to retire. On the contrary, Mr Russell was keen for the claimant to stay because the respondents had for some years found it difficult to recruit financial advisers.[45]The claimant felt very uncomfortable about being asked again about his retirement plans. We find that he was offended by Mr Russell’s question in June/July 2021. Fee calculation for August 2021 (claim 2 issues 3.1.1, 3.1.2, 3.1.3, 4, 5.2.1 and 5.2.3)[46]By September 2021 discussions between Mr Russell and the claimant about the proposed new contract were still ongoing. The claimant had not accepted the new terms.[47]On 9 September 2021 the first respondent’s accounts manager produced a calculation of a fee payment to which the claimant would be entitled under the terms of the proposed new contract (page 400). The calculation showed that, under the new terms, the claimant would have earned fees of £145.70 for new business generated in August 2021 (page 401). The first respondent’s accounts manager explained that she was waiting for confirmation of when commission payments (fees) to the claimant would begin. She was waiting for confirmation of when the claimant had accepted the new terms. Complaint about the claimant (claim 1 issue 12.1.1)[48]In October 2021 Ms Wales called Mrs Borman to raise more concerns about negative comments made by the claimant about the first respondent and Mr Russell. She sent Mrs Borman an email on 14 October 2021 with a list of the 12 comments she said the claimant had made in the past few months (page 162). Numbers were added to the list later; we refer to the comments using those numbers (page 224).[49]Comment 1 was that the claimant said several times that Mr Russell was a fucking idiot.[50]Comments 5 and 10 form the basis of the claimant’s complaint of perceived whistleblowing detriment. Ms Wales alleged that the claimant said: ‘(Comment 5) One of Colin Last’s employees had a bonus payment with Colin, when [Mr Russell] employed her, he said he would keep that arrangement it was about £6,000 when she asked about it [Mr Russell] said it wasn’t in her contract. I looked into it and what he had done was illegal.’ ‘(Comment 10) I looked into wrongful dismissal for [two colleagues] and advised them.’[51]Comment 12 is relied on by the claimant in his complaint of victimisation. Ms Wales said that the claimant said about Mr Russell: 8 of 65 “I think he wants to push me to part-time or out as he has spoken to various IFA ladies regarding part time work and me giving up clients to them and keeps asking if I can cope with a 5 day week.”[52]Comment 12 did not mention discrimination, harassment, age or any other protected characteristic. We find that this comment was not understandable as an allegation that there had been a contravention of the Equality Act 2010. Advisers’ forum meeting (claim 1 issues 9.2.3, 10.1, 11.1.3)[53]No immediate steps were taken in response to Ms Wales’ complaint about the claimant.[54]On 22 October 2021 there was a meeting between Mr Russell, Mr Rees and the claimant called the advisers’ forum meeting. The claimant says that at this meeting Mr Russell told him that he was intending to employ some ‘lady advisers’ on a parttime basis. The claimant says he understood from this that there would not be enough work for him. He said he wanted to continue working full-time.[55]We find that on one occasion Mr Russell asked the claimant for his feedback on the possibility of taking on additional part-time financial advisers. (We find that this discussion happened before 14 October 2021, not at the advisers’ forum meeting on 22 October, for reasons explained below in our findings about the claimant’s investigation meeting.) We find that in asking for feedback, Mr Russell was not telling the claimant something he had already decided. He was asking the claimant for his view on a possible suggestion.[56]We find that in asking for feedback, Mr Russell was not implying that there would be any changes for the claimant. Mr Russell did not imply or suggest at any time that any work would be taken from the claimant, that the claimant’s hours would be reduced or that his role would be removed. Such an implication is not consistent with the notes of the advisers’ forum meeting (page 397). The notes make very clear that it had been agreed that, because there had been some significant changes in staff, there would be a period of stability in terms of people for the next 12 months: ‘We talked through the significant changes in staff as well as the world and we all agreed a period of stability with little change is needed both in people and documents for the next 12 months.’[57]The notes do not support the suggestion that Mr Russell implied that he wanted to get rid of the claimant or to bring in other part-time advisers to reduce his hours. Rather, the notes of the meeting demonstrate that Mr Russell’s express view was that he wanted there to be no change in staff for the coming 12 months, in other words he wanted to retain the claimant as a full-time adviser. Proposed new contract 9 of 65[58]The proposed new contract was also discussed at the advisers’ forum meeting. After the meeting Mr Russell made some changes to the proposed new contract and sent an amended version to the claimant on 24 October 2021 (page 165). All parties agree that the claimant never signed the new contract or accepted its terms.[59]In his email after the advisers’ forum meeting, Mr Russell thanked the claimant for his time and said the meeting was ‘a very positive and pro-active session for us all’. Similarly, the notes of the meeting say that the meeting was ‘a very positive and open advisers’ forum’ (page 397).[60]Mr Russell was on holiday from 25 October to 29 October 2021 (page 399). We find, based on the tone of Mr Russell’s emails to the claimant after the advisers’ forum meeting, that Mrs Borman had not told Mr Russell about Ms Wales’ complaint about the claimant prior to the advisers’ forum meeting, and that she only told him about it while he was on holiday. This is consistent with what Mr Russell said in his first witness statement. We find that on his return from holiday in the week of 1 November 2021 Mr Russell and Mrs Borman discussed the complaint, took HR advice and considered what steps to take. This is consistent with the emails between them on 8 November 2021 (page 490). Investigation/suspension of the claimant (claim 1 issues 11.3.1 and 12.2.1)[61]On about 9 November 2021 the first respondent started an investigation into the claimant’s conduct. It sought advice on the process from its external HR advisers.[62]Mr Russell was advised by the first respondent’s HR adviser that he should not be involved with the process at all (page 683). Mr Russell followed this advice. We find that he was not involved with the disciplinary process at all. His only involvement in the appeal process was to provide a statement when asked to do so by the appeal investigator. Mrs Borman led the process and, with support from the first respondent’s HR advisers, she made the decision to progress disciplinary action against the claimant.[63]Theresa Dunsby, the first respondent’s accounts manager, was appointed to conduct the investigation. Mrs Borman was the disciplinary manager.[64]Mrs Borman suspended the claimant on 9 November 2021 (page 169). The claimant was given a letter which said that he was suspended on full pay to allow an investigation into serious allegations made against him, resulting in a breakdown of the employer/employee relationship. The letter said that at first sight the matters would appear to fall within the category of gross misconduct for which he may be liable to be summarily dismissed.[65]Ms Dunsby interviewed Ms Wales and Mrs Beaumont on 12 November 2021 (page 171 and page 178) and Mr Rees on 15 November 2021 (page 170). Mrs Beaumont confirmed comments 1 and 10 in part, saying that the claimant had called Mr Russell an idiot, and that he had moaned ‘quite a lot in regard to’ the two colleagues mentioned in comment 10.[66]The claimant had an investigation meeting with Ms Dunsby on 18 November 2021 (page 184). The claimant said he could not recall using bad language, or running 10 of 65 down the respondent or Mr Russell, particularly in front of Ms Wales and Mrs Beaumont. He did not recall ever being angry. He said he recalled making constructive criticism of some aspects of the first respondent’s practices. He accepted that he did moan on occasion but said he did not recall his language having ever got to the level alleged. He said that there may be odd occasions when language like this may slip in, in company that also uses it, but generally he would not swear in this way. He agreed that it was definitely not appropriate to relay gripes to colleagues.[67]After her meeting with the claimant Ms Dunsby prepared an investigation report (page 178). She noted that some of the alleged comments were corroborated by Mrs Beaumont, and that Mr Rees said the claimant is always grumpy and will moan about anything and everything. She said that, having taken HR advice, there were three possible options. These included taking no action, which Ms Dunsby did not recommend because she felt ‘things were obviously said which need addressing’. The other two options were a first and final warning or dismissal due to loss of trust and confidence and breakdown of employer/employee relationship.[68]Ms Dunsby sent her report to Mrs Borman on 22 November 2021 (page 186). At the time, Ms Dunsby was still waiting for Mrs Beaumont and the claimant to confirm the notes of their interviews. Ms Dunsby told Mrs Borman on 24 November that Mrs Beaumont had confirmed the notes of her meeting (page 194).[69]Ms Dunsby sent the claimant the notes of his investigation meeting on 22 November 2021 (page 182). He sent back amended notes later that day and asked for copies of the first respondent’s procedures and his contract of employment (page 187). The first respondent’s HR adviser forwarded the claimant’s amended notes to Mrs Borman on 23 November 2021 (page 190). One of the claimant’s amendments was to add a comment ‘Everyone is entitled to freedom of expression in law and to constructively criticise’ (page 188).[70]Also on 23 November 2021 Mrs Borman spoke to the first respondent’s HR adviser and had an email exchange with her (page 521). In her email Mrs Borman said: “Thanks for the chat – I want to go down the dismals [sic] for Gross Misconduct based on loss of Trust and confidence, can you please advise the next steps’[71]There is no dispute that by dismals Mrs Borman meant dismissal. The respondents accept, based on this email, that Mrs Borman had decided to dismiss the claimant prior to the disciplinary hearing and that for this reason the subsequent dismissal of the claimant was an ordinary unfair dismissal. We find that this decision was taken by Mrs Borman and Mr Russell was not involved in it. Mrs Borman was particularly concerned about the claimant’s criticism of Mr Russell and the impact of that on his trust and confidence in the claimant. Disciplinary action (claim 1 issues 11.3.2, 11.3.3, 12.2.2 and 14)[72]On 23 November 2021 Mrs Borman wrote to the claimant to invite him to attend a disciplinary hearing on 29 November 2021 (page 192). The invitation letter enclosed copies of the interview notes of Ms Wales, Mrs Beaumont and Mr Rees. It 11 of 65 also enclosed a list of the comments it was alleged the claimant had made (page 224). The letter explained the right to be accompanied.[73]The letter also enclosed a copy of the respondent’s disciplinary policy (page 121). The disciplinary policy is part of the employee handbook (page 107). The introduction to the employee handbook says: “This handbook sets out the information, rules and procedures you will need during your employment with us. It does not form part of your Contract of Employment, but has been put in place to ensure that everyone understands what is expected of them. If there are any differences between your Contract and this handbook, your Contract takes precedence.”[74]The claimant’s contract said the disciplinary rules and procedures were set out in the employee handbook (page 92).[75]The following day the claimant was diagnosed by his GP with stress and low mood. He was certified unfit for work (page 228). The claimant was not at work at this time because he had been suspended. He did not tell the respondents that he was certified unfit for work and he did not give the respondents a copy of the fit note until 14 December 2021.[76]The claimant replied to Mrs Borman on 24 November 2021 (page 195). He said he had holiday booked from 26 November 2021 and for the following week. He said he would cancel his holiday but he would need more time to prepare for the meeting and to decide who to ask to accompany him. He asked for an alternative date to allow him more time. Correspondence before the disciplinary hearing (claim 1 issues 7.1.1 and 12.2.3)[77]The claimant wrote to Mrs Borman again on 30 November 2021 (page 196). He asked for access to his work laptop to prepare his defence and for the respondents to assist him to identify an impartial companion to accompany him. He ended his email by saying, ‘If I have inadvertently caused any offence I apologise unreservedly’.[78]On 1 December 2021 Mrs Borman emailed the claimant to let him know that the disciplinary hearing would now take place at 11.30am on 14 December 2021 (page 199 and 200). She had not been able to reach the claimant that morning, and her email said: ‘I assume you are taking your holiday as I can’t hold of you via email or phone’.[79]The claimant replied, apologising for missing her call. Mrs Borman asked the claimant to confirm that he was not taking his scheduled holiday (page SB10).[80]The claimant and Mrs Borman then exchanged further emails on 1, 2 and 3 December 2021 (page SB8 to SB11 and page 203). In relation to the laptop, Mrs Borman said she was quite happy to consider the request, but asked what the 12 of 65 claimant needed from it (page 198). After the claimant replied, Mrs Borman provided some information, and said that ‘she did not see the need’ for the claimant to have access to his computer (page SB10). After taking HR advice on the question of the claimant’s laptop, Mrs Borman agreed on the following day that the claimant could have supervised access to his laptop (page SB11).[81]Mrs Borman’s actions in relation to the claimant’s request for laptop access were not influenced in any way by the nature of the comments which were alleged to have been made by the claimant. The first respondent is a small business and Mrs Borman is not HR trained. She relied on advice and support from HR advisers as to how to respond to the claimant’s request.[82]Mrs Borman agreed to ask a member of staff if they were willing to act as the claimant’s companion. She spoke to Mr Rees who initially agreed, but he had to withdraw as he had a client meeting at the same time as the disciplinary hearing. Ms Dunsby, who conducted the investigation, offered to accompany the claimant but the claimant did not accept the offer.[83]Mrs Borman also confirmed in response to a request by the claimant that the complaint about him had been passed to her on 14 October 2021, that she had then passed it to Ms Dunsby to investigate and that Ms Dunsby had prepared a report (page SB11). The claimant asked for a copy of the report; Mrs Borman refused (page 202).[84]The claimant attended the first respondent’s offices to access his laptop on 8 December 2021. Ms Dunsby was present and she summarised the meeting in an email to Mrs Borman afterwards (page 469). Ms Dunsby said: “He appeared a bit emotional, and run down so I do think this meeting needs to happen one way or another, I would go as far to say I have concerns for his health without being overly dramatic… From the little we spoke, he appeared confused about the allegations, and he was looking for some explanation to bring to the meeting next week, hence wanting to run through his emails to jog his memory in the hope of understanding things better. He said he just can't place in his mind some of the conversations it is said he has had, in short I think he is fairly oblivious to his moan and groan nature and may just need being made aware of this and the impact on the company and staff.”[85]The claimant had been certified unfit for work again because of stress and low mood, for the period 8 December to 31 December 2021 (page 229). He did not tell the respondents or give them a copy of his GP’s fit note. Communications with Quilter (claim 1 issue 9.2.5)[86]Under the regulatory arrangements with Quilter, the first respondent had a duty to notify Quilter or the FCA if any of its financial advisers were subject to disciplinary action, including suspension (page 462). Mr Russell had not notified Quilter or the FCA of the claimant’s suspension in November 2021. He thought that the claimant should be given the benefit of the doubt pending the disciplinary proceedings. 13 of 65[87]On 13 December 2021 a representative from Quilter called the claimant to set up a meeting with him as part of its ongoing supervisory functions. The claimant agreed to the meeting being scheduled for 10 January 2022. Mr Russell was copied into Quilter’s email confirming the arrangements (page 210). Mr Russell replied to Quilter’s representative saying that the claimant was out of the business and would not be able to make the meeting (page 209). He suggested that he provide an update on 11 January 2022 when he would have ‘a better understanding of Rob’s circumstances’. The Quilter representative said he was confused as he had booked the appointment after speaking to the claimant. Mr Russell replied to say that the claimant was suspended subject to investigation and should not have taken the call (page 208).[88]We find that Mr Russell was not worried that the claimant was planning to or would speak to Quilter in order to make a protected disclosure. This did not cross his mind, because Mr Russell had not understood any of the comments made by the claimant to be whistleblowing disclosures or to have any public interest element. Conversation before the disciplinary hearing (claim 1 issue 15.1.1)[89]The disciplinary hearing was due to start at 11.30am on 14 December 2021. At 9.43am on 14 December the claimant emailed Mrs Borman (page 213). He said that he was still waiting for the first respondent to come back to him to confirm who would be his companion for the hearing. He said that he did not think that the hearing should proceed because no companion had been appointed.[90]Mrs Borman and the claimant spoke on the phone at about 10.00am. The claimant sent an email at 10.39am which we accept accurately recorded the contents of their conversation (page 214). The claimant said that the issue of a companion to accompany him was outstanding. He said he needed to be accompanied at the hearing because he had been diagnosed with stress and therefore his ability to defend himself and put over his defence was compromised. He suggested that the hearing should be delayed until the first respondent was able to address this issue. Mrs Borman said that if the claimant did not attend, the hearing would proceed in his absence. The claimant said he would be attending under protest. The hearing start time was changed to 2.00pm. The disciplinary hearing (claim 1 issues 7.1.2 and 11.2.1)[91]The disciplinary hearing went ahead at 2.00pm on 14 December 2021. It lasted for 22 minutes (pages 215 to 220).[92]At the hearing, the claimant gave Mrs Borman his two fit notes which said that he had been certified unfit for work since 24 November 2021. This was the first time the claimant had told the respondents that he had been certified unfit for work.[93]Mrs Borman told the claimant that his responses to her questions would be taken away and assessed, and that she would not make the decision on the day. 14 of 65[94]At the hearing Mrs Borman started from the point that the claimant had made the alleged comments, and her questions focused mainly on why he said them, rather than whether he said them. She summarised at the start by saying: “It's alleged that over the past few months, you've made many comments about how the company has managed and various derogatory comments specifically about Ian. It's also been noted that you've also used inappropriate language when speaking about Ian. Looking at the initial information that's come to light, I must say that I'm very sorry to see such comments about the company in general and about Ian in particular.”[95]Other examples of this approach are at page 217 and 218: “NB: The saddest comment of all ‘there is no Polestar family’. Why did you feel that comment was relevant? RY: Well, that implies I've said it. I don't recall.” “NB: I'm quite concerned that you seem to have raised your grumbles and moans about the management of the company with everyone you've spoken to in the office, to which you have answered that everyone is entitled to freedom of expression in law and to constructively criticise. So, if this was supposed to be constructive criticism, why didn't you raise it with Ian? Or with me? RY: I think it's a general comment that in answer to the original question that was posed to me, I'm not saying that I did do that. I'm just saying that, you know, you're allowed to do it. I don't recall some of the things that have been mentioned here. I don't recall. You know as well, you know, I can't actually quantify the accusations with stuff I've actually said.”[96]The claimant alleges that Mrs Borman spoke to him in a sneering and demeaning manner throughout the disciplinary hearing. We read the transcript of the hearing in full. At the parties’ invitation we listened to the respondent’s recording of the hearing in full. We do not find that Mrs Borman spoke in a sneering or demeaning manner at any point. Her manner and tone were professional.[97]After she had asked her prepared questions, Mrs Borman asked the claimant whether there was anything else he wanted to talk through (page 220). The claimant said he would give her a letter setting out his responses to the allegations, and would then leave the meeting. After the claimant handed over the letter, the meeting ended. The claimant’s letter of 14 December 2021 (claim 1 issues 5.1.1 and 12.1.2) 15 of 65[98]The claimant’s letter was dated 13 December 2021 but given to Mrs Borman at the end of the hearing on 14 December 2021 (page 221).[99]The claimant alleges that his letter was a protected disclosure (a whistleblowing disclosure under the Employment Rights Act 1996) and a protected act for the purposes of his complaint of victimisation under the Equality Act 2010.[100]In his letter, the claimant said: “Comments numbers 5 and 10 imply that the person who is making the comment has a genuine belief that a past, present or likely future act of wrongdoing is or has taken place and as such the person making the comment is protected and entitled to make such a disclosure… I am being subjected to harassment and bullying on account of the perception that I am a whistleblower’.[101]In his letter, the claimant accepted that he had made comments similar to comment 12. He said: “I am entitled to make this statement and I have a genuine belief that I am being subjected to harassment and discriminatory treatment on account of a protected characteristic.”[102]We find that, in light of express reference to harassment, discriminatory treatment and a protected characteristic, this letter was understandable as an allegation that there had been a contravention of the Equality Act 2010.[103](There was a dispute about the date on which the claimant said comment 12. In his evidence to us, the claimant said that while he agreed that he said something similar to comment 12, he said it on 22 October 2021, not on 14 October as alleged by Ms Wales. We find that words similar to comment 12 must have been made before the claimant thought, because Ms Wales included them in the email she sent to Mrs Borman on 14 October 2021. It is not plausible to think that Ms Wales could have made up a comment by the claimant in the exact same terms as something the claimant accepts that he said the following week. It is much more likely that the claimant has mis-remembered the date, and that he made comment 12 on 14 October 2021 rather than on 22 October 2021.)[104]In his letter, the claimant said that he had no recollection of making the alleged comments, other than comment 12. He also reminded the respondents that he had made an unreserved apology at the first opportunity, should he have inadvertently caused any offence.[105]We make the following findings as to whether the letter was a protected disclosure:105.1 in telling Mrs Borman in this letter that he believed he had been subjected to harassment and discriminatory treatment, the claimant was disclosing information (when read in the context of comment 12 itself);105.2 the claimant genuinely (although wrongly) believed that Mr Russell wanted ‘to push him to part time working or out’ because of his age. He had a genuine 16 of 65 belief that the information he was providing tended to suggest that the respondent had failed to comply with the legal obligations under the Equality Act 2010;105.3 the claimant did not believe that this disclosure was in the public interest. In his evidence to us, he was unable to explain why he believed disclosing the information in this letter was in the public interest. He made the disclosure during the disciplinary hearing, about something which he said happened around 2 months before. We find that the claimant made the disclosure in response to the allegations which had been made against him, not because he believed it was in the public interest to make it. We accept that is possible to have more than one reason for making a disclosure, but we find that the disclosure in the letter of 14 December 2021 was made in defence of the claimant’s personal position, and not in the belief of the claimant that it was in the public interest to raise it. Correspondence after the disciplinary hearing[106]The day after the disciplinary hearing, Mrs Borman wrote to the claimant to ask for more details of his allegation of discrimination and his perception that he was a whistleblower (page 233). She did not understand what he meant by this. At the claimant’s request, on 16 December 2021 she provided the claimant with minutes of the advisers’ forum meeting and confirmed that she was the sole decision maker in respect of the outcome of the disciplinary hearing (page 234).[107]On 20 December 2021 Ms Dunsby emailed the first respondent’s HR advisers, to ask about the pay implications of the claimant having been signed off sick while suspended (page 733). The claimant’s contract provided a contractual entitlement to sick pay at SSP levels (page 90). In practice however, the first respondent usually exercised a discretion to pay full pay during sick leave.[108]In her email, Ms Dunsby asked whether the first respondent should ‘continue full pay for the suspension or apply the sick note for the proportion affected’. The first respondent’s HR adviser replied to say that the claimant ‘will stay on full pay whilst he is suspended, sick or not’. The respondent continued to pay the claimant full pay for the whole period of his suspension.[109]On the evening of 20 December 2021 the claimant asked for an extra couple of days to reply to the request for more details of the discrimination and whistleblowing allegations (page 236). He explained that he was stressed and had a hospital appointment on 21 December 2021.[110]Mrs Borman asked the claimant to reply by close of business on 22 December 2021 (page 238). She also said two other issues had come to light and were being investigated. She said the claimant may be required to attend another investigation meeting. She did not say what the issues were. The claimant asked her for details. Mrs Borman replied to say that she would need to have the claimant’s reply to her outstanding question before being able to move on to that (page 240). By close of business on 22 December 2021 the claimant had not provided any details of the discrimination and whistleblowing allegations. Dismissal of the claimant (claim 1 issues 2, 4.3, 9.2.4, 9.2.6 and 12.2.4) 17 of 65[111]On 23 December 2021 at 11.00am Mrs Borman emailed the claimant and told him that he was dismissed with immediate effect by reason of gross misconduct (page 241 and 242).[112]Mrs Borman said that:112.1 the claimant had not explained anything about the allegations that he had made derogatory comments about the way the company was run;112.2 the claimant’s response that he had not made specific comments about Mr Russell was not satisfactory because he said he did not recall saying these things.[113]Mrs Borman concluded that the claimant had made the alleged comments and that his conduct amounted to gross misconduct. She based her decision on six comments in particular, including comments 5 and 10 but not comment 12. She considered whether the claimant should be given a final written warning. She could not see how the claimant could continue to work within the organisation as she felt that the company had lost all trust and faith in the claimant. The claimant was dismissed for gross misconduct with immediate effect.[114]We find that the decision to dismiss was taken by Mrs Borman. Mr Russell was not involved in it.[115]As practice manager, Mrs Borman was familiar with the first respondent’s whistleblowing policy (page 124). We accept her evidence that she did not consider the comments which Ms Wales alleged the claimant had made to be whistleblowing disclosures. She did not understand what the claimant meant when he said there was a perception that he was a whistleblower. We find that Mrs Borman’s decision to dismiss the claimant was not based on a perception or belief that comments 5 and 10 were protected disclosures. Appeal (claim 1 issues 9.2.7, 6.2.1, 6.2.2 and 15.1.2)[116]The claimant appealed the decision on 5 January 2022 (page 246). He said that the decision to dismiss was disproportionately harsh, given the nature of the allegations, his previous good conduct and his prompt apology. He did not say that he thought his dismissal was based on perceived protected disclosures.[117]The respondent appointed Donna Chadbone, an external HR consultant, as the appeal investigation officer (page 257). In response to a question by the claimant, Mrs Borman told the claimant that the decision maker in relation to the appeal would be Tracey Russell, a director of the first respondent and Mr Russell’s wife. The claimant asked that Mrs Russell be present at the appeal (page 262).[118]The appeal invitation letter informed the claimant of his right to be accompanied. The claimant asked Mr Rees to accompany him but Mr Rees was unable to do so because he had a client meeting (page 265).[119]The appeal hearing took place on 18 January 2022 (page 266). Ms Chadbone explained that she would be chairing the hearing and doing any further 18 of 65 investigations, following which she would feed back any findings to Mrs Russell who would make any final decisions based on Ms Chadbone’s findings and recommendations.[120]After the hearing, Ms Chadbone asked Mr Russell to prepare a statement on the allegations. Mr Russell’s statement was provided on 26 January 2022 (page 281).[121]Mr Russell said, and we accept, that comment 5 accurately included the amount of a bonus which was the subject of the dispute by another employee. Ms Wales had joined the respondent sometime after that employee had left. Mr Russell’s evidence, which we accept, was that the claimant was the most likely source of this information.[122]Mr Russell said that the claimant’s comments had led to a fundamental breakdown in his relationship with the claimant as the claimant had called Mr Russell’s integrity and honesty into question.[123]In his statement Mr Russell did not say anything to suggest that he perceived or believed the claimant to be a whistleblower.[124]Mr Russell’s statement was copied to the claimant; the claimant provided some comments in response (page SB12 to SB19). He reiterated that the only comment he recalled making was comment 12.[125]Ms Chadbone prepared an appeal report on 28 January 2022 (page 284). She concluded that the comments were made by the claimant as alleged and that dismissal was a proportionate, fair and reasonable response in the circumstances. She focused on the loss of trust and confidence Mr Russell had in the claimant as a result of learning about the comments. She considered the claimant’s allegation that he was a whistleblower, concluding that there was no evidence that the claimant had reported a whistleblowing complaint, and that the alleged comments made by the claimant related to employment issues and were not made in the public interest (page 288). She considered whether the claimant had been subject to age discrimination or harassment, concluding that he had not.[126]On 1 February 2022 Mrs Russell, as appeal decision-maker, decided to uphold the dismissal (page 294). She reached this decision based on Ms Chadbone’s appeal report and recommendations. Mrs Russell is not experienced in HR matters and relied entirely on Ms Chadbone. Mrs Russell did not have any perception or belief of the claimant as a whistleblower. She accepted Ms Chadbone’s advice that he was not.[127]In her witness statement, Mrs Russell said that when making her decision, she took into account the claimant’s age, length of service and the fact that he had apologised. We accept her evidence that that this reference to the claimant’s age was in relation to mitigating factors and that Mrs Russell only took age into account in that context, not as a factor on which she based her appeal decision.[128]For the purposes of the complaint of wrongful dismissal, we find that the claimant did make comments along the lines alleged by Ms Wales. We accept Ms Wales’ evidence about this, because: 19 of 65128.1 her email of 14 October 2021 was a contemporaneous record of the 14 October 2021 comments and a recent record of the earlier comments;128.2 two of the comments were corroborated by other witnesses, either in whole or in part (comments 1 and 10);128.3 one of the comments contained information which Ms Wales could not have known and was unlikely to have come from any other source other than the claimant;128.4 the claimant’s response was not to deny making the comments but to say that he could not recall making them;128.5 the claimant could not suggest any reason why Ms Wales would have made up the complaint about him.[129]Mr Russell acknowledged that the claimant’s comments were made internally only, and that the respondents did not have any concerns about the claimant’s comments having any detrimental impact on client relationships or being any risk to the business.[130]For the purposes of the complaints based on perceived protected disclosures:130.1 we find that while he made comments along the lines of comments 5 and 10, the claimant did not have a belief that it was in the public interest to do so. He denied that he made them. The comments were made by the claimant many months after the events in question. We find that they were made as part of what has been described as the claimant’s ‘general moaning and groaning’ and not from any belief on the claimant’s part in the public interest of the matters being disclosed;130.2 the comments were made to a junior member of staff and not to the claimant’s employer or in accordance with the respondent’s whistleblowing policy which said that concerns should be reported to a line manager or more senior manager/director (page 124). The claimant’s grievance (claim 1 issues 5.1.2, 7.1.3, 9.2.8 and 11.1.4)[131]On 2 February 2022 the claimant sent a formal grievance to Mr Russell (page 297). The grievance was about his dismissal. The claimant gave details of his complaints of harassment and discrimination because of age, and victimisation on account of the perception that he was a whistleblower.[132]We make the following findings in relation to the allegation that the grievance was a protected disclosure. In his grievance letter, the claimant:132.1 gave details of the two occasions on which he had been asked by Mr Russell about intended retirement;132.2 said that he believed Mr Russell was deliberately harassing him as he wanted the claimant to leave or reduce his hours due to his age;132.3 was disclosing information which he genuinely believed tended to suggest that the respondent had failed to comply with the legal obligations under the Equality Act 2010. 20 of 65[133]We find that the claimant did not believe that this disclosure was in the public interest. In his evidence to us, he could not explain why he believed his disclosure was made in the public interest. He made the grievance after his dismissal, about things which he said happened about 6 to 18 months previously. We find that the claimant made the disclosure as part of his response to his dismissal, not because he believed it was in the public interest to make it. As we said in relation to the first alleged protected disclosure, we accept that is possible to have more than one reason for making a disclosure, but we find that the disclosure in the claimant’s grievance was made in connection with the claimant’s personal position, and not because of a belief by the claimant that it was in the public interest to raise it.[134]Mr Russell replied to the claimant on 3 February 2022 (page 303). He said that the matters raised had been covered as part of the disciplinary and also raised in his appeal. He said that there was no further right of appeal and therefore the matters were closed.[135]We accept Mr Russell’s evidence that he did not consider comments 5 and 10 (or any of the comments made by the claimant to Ms Wales) to be whistleblowing disclosures. This did not cross his mind, because the comments did not appear to him to have any public interest element. He did not have a perception or belief that the claimant was a whistleblower or that the claimant had made protected disclosures. We find that Mr Russell’s actions in relation to the claimant’s grievance were not influenced at all by any perception or belief that the claimant had made protected disclosures. The reason for the refusal to hear the grievance was that Mr Russell felt that the issues raised had already been dealt with. The claimant’s subject access request (claim 1 issues 7.1.4, 9.2.9 and 11.1.5)[136]The claimant made a subject access request on 4 February 2022 (page 407). Mr Russell replied on 23 February 2023 (page 410). Mr Russell said that because of the length, depth and quantity of information requested, the respondents would have to charge a fee to respond to the request, calculated by reference to the hourly rates of the individuals involved in collecting and assessing the data. He said the data would be provided on receipt of £3,200 from the claimant.[137]The reason for Mr Russell’s response to the subject access request was concern about the likely costs of providing the information requested. The respondents are a small business and did not have a detailed understanding about the subject access request procedure and the scope of the fees which data controllers are permitted to charge under the data protection legislation.[138]As explained, we have accepted that Mr Russell did not think of comments 5 and 10 (or any of the comments made by the claimant to Ms Wales) as whistleblowing disclosures. He did not have a perception or belief that the claimant was a whistleblower or that he had made protected disclosures. We find that Mr Russell’s actions in relation to the subject access request were not influenced at all by any perception or belief that the claimant had made protected disclosures.[139]The claimant complained to the Information Commissioner’s Office about the respondents’ response to his subject access request. The Information Commissioner’s Office wrote to Mr Russell on 7 June 2022 and said 21 of 65139.1 the fact that the claimant was dismissed for gross misconduct was not relevant;139.2 it is a statutory right for an individual to be able to make a subject access request;139.3 the Information Commissioner’s Office would expect most businesses to respond for free, but if the respondents insisted on charging a fee it had to be based on reasonable admin costs and be reasonable and proportionate;139.4 a fee of £3,000 is not reasonable or proportionate. Claim 1 (claim 2 issue 6.1.1)[140]The claimant presented claim 1 on 16 March 2022. Post-dismissal complaint about the claimant[141]On 6 December 2022, about a year after the claimant was dismissed, Mrs Beaumont made a complaint of sexual harassment by the claimant. The respondents were not aware of the complaint at any point prior to dismissal. We did not hear evidence about this at the liability hearing and have not made any findings about whether this occurred. It will be considered at the remedy hearing. It relates to the question of whether there is a chance that the claimant would have been fairly dismissed in any event, for some other reason. The £145.70 fees for new business in August 2021, and the respondent’s counter-claim for overpaid sick pay (claim 2 issues 5.2.2 and 6.2.1)[142]Claim 2 includes complaints about matters which occurred in the context of the employment tribunal proceedings in claim 1, in particular a claim by the respondents that the claimant was overpaid sick pay (‘the overpayment claim’). In this part of our reasons, we make findings about those aspects of the claim 1 proceedings which are relevant to the complaints in claim 2. Some of these relate to proposals to settle part of the claimant’s claim which were made in open tribunal. The related discussions were referred to in the grounds of complaint and the grounds of resistance in claim 2 (page 492 and page 506 and 507). Neither party says that these proposals or discussions were without prejudice. We make the following findings about the circumstances of the ‘overpayment claim’.[143]The claimant was ordered to provide further information about a complaint of breach of contract which he raised in claim 1. He did so on 11 January 2023. In his further information he said that the respondent acted in breach of its health and safety obligations by progressing with his disciplinary hearing while he was certified sick by a doctor (page 69).[144]On 8 February 2023 the respondents provided a written response to the claimant’s complaint of breach of contract in claim 1 (page 71). In that response, the respondents said that the claimant had been overpaid while on sick leave and that it was seeking repayment of the overpayment. 22 of 65[145]On 11 May 2023, during the disclosure process, the claimant saw Ms Dunsby’s email of 9 September 2021 which said that, under the proposed new contract, the claimant would have earned fees of £145.70 for new business generated in August 2021 (page 401). Having seen this document, the claimant sought payment of the £145.70.[146]On 25 May 2023 the first respondent asked the claimant for his bank details to enable it to make an ex-gratia payment of the £145.70 (page 507). The claimant told the respondents that he would be seeking to amend his employment tribunal claim (claim 1) to include a complaint of unauthorised deduction from wages in respect of the £145.70 (page 492). The respondents told the claimant that if he made a claim of £145.70 as part of his employment tribunal claim, the first respondent would object due to an overpayment of pay to the claimant while he was certified sick (page 507). On 16 and 26 June 2023, in discussions about the bundle and in the pre-hearing checklist, the claimant referred to the failure to pay sums he said were due under his contract. The respondents’ representative said that was a complaint which was not before the tribunal, and that there had been an overpayment of sick pay to the claimant which the respondents would say should be set off against the sum he was seeking (pages 406, 450 and 493). On 27 June 2023 the claimant made an application to amend claim 1 to include complaints about the fees (page 452).[147]On 13 July 2023, the first day of the liability hearing, the tribunal and the parties had a discussion about the claimant’s application to amend to include a complaint about the fees. The respondent’s representative said in open tribunal that the respondent would pay the claimant the £145.70, so that it would not be necessary for the tribunal to consider the application to amend. However, the claimant rejected that offer. He said that there would be additional monies to pay but he did not have any idea of what the sum would be. The first respondent offered to pay £200 in total but this was rejected (page 507).[148]The claimant presented claim 2 on 17 August 2023, after early conciliation with the first respondent from 17 July to 2 August 2023 and with the second respondent from 15 August 2023 to 17 August 2023 (page 477, 478, 479).[149]In the ET3, the response to claim 2, the respondents sought to make a counterclaim for pay for the period from 24th November 2021 when the claimant was signed off sick by his GP until his disciplinary hearing on 14th December 2021. The respondent said the claimant had been overpaid sick pay during this period in the sum of around £2020 (page 503). This was later said to be £2,030.77[150]At the case management hearing on 31 July 2024, the complaints and issues in claim 2 were identified and recorded in a list of issues (page 819). The respondents’ counter-claim made in the ET3 in claim 2 was not accepted because the claimant had not made a complaint of breach of contract in claim 2. The law Protected disclosures 23 of 65
The law
[151]Section 43A of the Employment Rights Act 1996 provides that a protected disclosure is:151.1 a ‘qualifying disclosure’ as defined by section 43B;151.2 which is made in accordance with one of the specified methods of disclosure set out in sections 43C to 43H.[152]Section 43B explains what a qualifying disclosure is. Sub-sections 43B(1) and (5) say: “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. … (5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).”[153]In summary, a qualifying disclosure is i) a disclosure of information that ii) in the reasonable belief of the worker making it, is made in the public interest and iii) (again, in the reasonable belief of the worker making it) tends to show that one or more of six ‘relevant failures’ has occurred, is occurring or is likely to occur. Relevant failures include a failure to comply with a legal obligation.[154]Points ii) and iii) both have two elements: that the claimant has the required belief (as a matter of fact and on a subjective basis) and, if they do, that their belief is a reasonable belief to hold (on an objective basis).[155]Section 43C says: 24 of 65 “(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure -(a) to his employer, or(b) where the worker reasonably believes that the relevant failure relates solely or mainly to— (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person.” Protected disclosure detriment[156]Section 47B of the Employment Rights Act says: “(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done—(a) by another worker of W’s employer in the course of that other worker’s employment, or(b) by an agent of W’s employer with the employer’s authority, on the ground that W has made a protected disclosure.” 157. ‘Detriment’ is given a wide interpretation. It means putting under disadvantage, or doing something that a reasonable worker would consider to be to their detriment (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11).[158]The test for whether a detriment was done ‘on the ground that’ the worker has made a protected disclosure is explained in Fecitt and others v NHS Manchester [2012] IRLR 64, CA. The question is whether the protected disclosure materially influenced (in the sense of being more than a trivial influence) the treatment of the worker. Burden of proof in protected disclosure detriment[159]In a complaint of detriment, section 48(2) provides that it is for the employer to show the ground on which any act, or deliberate failure to act, was done. This means that the burden shifts to the employer where the other elements of a complaint of detriment are shown by the claimant.[160]Unlike the operation of the burden of proof under the Equality Act 2010, a failure by the employer to show positively the reason for an act or failure to act does not mean that the complaint of whistleblowing detriment succeeds by default. It is a 25 of 65 question of fact for the tribunal as to whether or not the act was done ‘on the ground’ that the claimant made a protected disclosure (Ibekwe v Sussex Partnership NHS Trust UKEAT/0072/14/MC). Automatic unfair dismissal[161]Section 103A of the Employment Rights Act says: “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.”[162]A dismissal which is contrary to section 103A is ‘automatically’ unfair. The tribunal does not need to consider whether the dismissal was reasonable in the circumstances. Perceived protected disclosures[163]The claimant relies on perceived protected disclosures. The tribunal is not aware of any appellate authority considering the scope of sections 47B and 103A in this respect. The judge at the preliminary hearing highlighted a first instance decision, Bilsbrough v Berry Marketing Services Ltd (1401692/2018). In that case, the employment tribunal concluded that section 47B could extend to cover detriment for taking preparatory steps towards making a protected disclosure. In that case, the tribunal found that the complaint under section 47B succeeded where the employer subjected the employee to a detriment as a consequence of his carrying out research about how to make a disclosure to a regulator which was a prescribed person under section 43F.[164]The claimant says that sections 47B and 103A of the Employment Rights Act 1996 encompass or should encompass protection for perceived as well as ‘actual’ protected disclosures and he has referred to the right to freedom of expression. This potentially engages an issue of human rights law.[165]X v Y [2004] EWCA Civ 662 provides guidance on the structured way an employment tribunal should approach an unfair dismissal case where a question of human rights law is raised. At paragraph 64 of the judgment, Mummery LJ said: “… it is advisable for employment tribunals to deal with points raised under the HRA in unfair dismissal cases between private litigants in a more structured way than was adopted in this case. The following framework of questions is suggested –.(1) Do the circumstances of the dismissal fall within the ambit of one or more of the Articles of the Convention? If they do not, the Convention right is not engaged and need not be considered.(2) If they do, does the state have a positive obligation to secure enjoyment of the relevant Convention right between private persons? If it does not, the Convention right is unlikely to affect the outcome of an unfair dismissal claim against a private employer. 26 of 65(3) If it does, is the interference with the employee's Convention right by dismissal justified? If it is, proceed to (5) below.(4) If it is not, was there a permissible reason for the dismissal under the ERA , which does not involve unjustified interference with a Convention right? If there was not, the dismissal will be unfair for the absence of a permissible reason to justify it.(5) If there was, is the dismissal fair, tested by the provisions of s98 of the ERA , reading and giving effect to them under s3 of the HRA so as to be compatible with the Convention right?” ‘Ordinary’ unfair dismissal[166]Section 98 of the Employment Rights Act 1996 says: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— … (b) 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.”[167]In a complaint of unfair dismissal where the reason for the dismissal is conduct, the role of the tribunal is not to examine whether the employee is guilty of the misconduct. Guidance set out in British Home Stores v Burchell [1980] ICR 303 explains that the tribunal must consider the following questions:167.1 whether, at the time of dismissal, the employer believed the employee to be guilty of misconduct; 27 of 65167.2 whether, at the time of dismissal, the employer had reasonable grounds for believing that the employee was guilty of that misconduct; and167.3 whether, at the time that the employer formed that belief on those grounds, it had carried out as much investigation as was reasonable in the circumstances.[168]The tribunal considers whether the decision to dismiss and the procedure adopted by the employer were within the range of reasonable responses open to the employer. It must not substitute its own view of the appropriate penalty for that of the employer. Breach of contract[169]The Tribunal has jurisdiction to consider a complaint of breach of contract under Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. This includes a complaint that the claimant was wrongfully dismissed without notice.[170]In relation to a breach of contract claim concerning a failure to give notice of dismissal (wrongful dismissal), the approach here is not the same as in a complaint of unfair dismissal. It is not sufficient for the employer to demonstrate a reasonable belief that the employee was guilty of gross misconduct. In a case of wrongful dismissal, the tribunal must decide whether:170.1 the claimant actually committed the misconduct; and170.2 the misconduct was of a sufficiently serious nature to amount to a repudiatory breach justifying summary dismissal.[171]In a case of breach of contract relating to disciplinary procedures, the tribunal will consider:171.1 Whether the disciplinary procedure was contractual;171.2 If so, whether there has been a failure by the employer to follow it. Age discrimination[172]Age is a protected characteristic under sections 4 and 5 of the Equality Act 2010. Direct discrimination[173]Section 13(1) of the Equality Act says: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[174]Section 13(2) says that in a claim of direct discrimination on grounds of age, A does not discriminate: 28 of 65 “if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim.”[175]The justification test for direct age discrimination is narrower than for indirect discrimination. Direct age discrimination can only be justified by reference to social policy objectives such as those related to employment policy, the labour market or vocational training. There are two broad categories of legitimate social policy objective: intergenerational fairness and dignity. A legitimate aim must be of a public interest nature, distinguishable from purely individual reasons particular to an employer’s situation, such as cost reduction or improving competitiveness (Seldon v Clarkson Wright and Jakes 2012 ICR 716, SC).[176]The Supplement to the EHRC Employment Statutory Code of Practice says that legitimate aims may include the efficient planning of the departure and recruitment of staff (paragraph 3.4.2). Indirect discrimination[177]Section 19 of the Equality Act says: “(1) A person(a) (A) discriminates against another(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,(c) it puts, or would put, B at that disadvantage, and(d) A cannot show it to be a proportionate means of achieving a legitimate aim.” Harassment[178]Under section 26 of the Equality Act, a person(a) (A) harasses another(b) (B) if “a) A engages in unwanted conduct related to a relevant protected characteristic, and b) the conduct has the purpose or effect of – i) violating B’s dignity, or ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. 29 of 65[179]Conduct amounts to harassment if it has the required purpose or, in the alternative, the required effect. In a claim based on the effect of conduct, a lack of intent by the alleged harasser is not a defence. In deciding whether conduct has the effect referred to, the tribunal must take into account: “a) the perception of B; b) the other circumstances of the case; c) whether it is reasonable for the conduct to have that effect.”[180]There are therefore both objective and subjective elements to the test about effect. Overall the tribunal is required to consider whether, if the claimant has experienced those feelings or perceptions, it was reasonable for them to do so. Victimisation[181]Section 27 of the Equality Act provides protection against victimisation. It is unlawful to subject someone to a detriment because they have done a ‘protected act’. Bringing proceedings under the Equality Act, doing something in connection with the Equality Act or making an allegation that someone has contravened the Equality Act count as protected acts, as explained in section 27: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because – a) B does a protected act… (2) Each of the following is a protected act - a) bringing proceedings under this Act … c) doing any … thing for the purposes of or in connection with this Act; d) making an allegation (whether or not express) that A or another person has contravened this Act.”[182]As explained above, ‘detriment’ is given a wide interpretation. It means putting under disadvantage, or doing something that a reasonable worker would consider to be to their detriment (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11).[183]The application of the victimisation protections in relation to conduct during legal proceedings can be particularly complex. In Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065, Lord Hoffman, considering the assessment of the reason for the treatment complained of, said that employers who act ‘honestly and reasonably ought to be able to take steps to preserve their position in pending discrimination proceedings without laying themselves open to a charge of victimisation’ (paragraph 31).[184]A later authority, Derbyshire v St Helens Metropolitan Borough Council [2007] ICR 841, focused on the question of ‘detriment’ rather than the assessment of the 30 of 65 reason for the treatment. The case concerned allegations of victimisation in the context of equal pay claims. The House of Lords concluded at paragraph 68: “If, in the course of equal pay proceedings, the employer's solicitor were to write to the employee's solicitor setting out, in appropriately measured and accurate terms, the financial or employment consequences of the claim succeeding, or the risks to the employee if the claim fails, or terms of settlement which are unattractive to the employee, I do not see how any distress thereby induced in the employee could be said to constitute “detriment”…. An alleged victim cannot establish “detriment” merely by showing that she had suffered mental distress: before she could succeed, it would have to be objectively reasonable in all the circumstances. The bringing of an equal pay claim, however strong the claim may be, carries with it, like any other litigation, inevitable distress and worry. Distress and worry which may be induced by the employer's honest and reasonable conduct in the course of his defence, or in the conduct of any settlement negotiations, cannot (save, possibly, in the most unusual circumstances) constitute “detriment”...”[185]The Court of Appeal in British Medical Association v Chaudhary 2007 IRLR 800 CA considered the different approaches in these two authorities. Lord Justice Mummery said that, while the House of Lords in Derbyshire v St Helens Metropolitan Borough Council “did not support Lord Nicholls' formulation of the test [in Chief Constable of West Yorkshire Police v Khan] as whether the employer had acted honestly and reasonably … it reaffirmed the essential statement of law that a person does not discriminate if he takes the impugned decision in order to protect himself in litigation” (paragraph 177). Discrimination in employment[186]Section 39 of the Equality Act explains the circumstances in which discrimination is prohibited in the employment context. Sub-sections 39(2) and 39(4) apply to employees and say: “(2) An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by dismissing B;(d) by subjecting B to any other detriment. (4) An employer (A) must not victimise an employee of A's (B)— (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for any other benefit, facility or service; (c) by dismissing B; 31 of 65 (d) by subjecting B to any other detriment.” Burden of proof in complaints under the Equality Act[187]Sections 136(2) and (3) provide for a shifting burden of proof: "(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) This does not apply if A shows that A did not contravene the provision."[188]This means that if there are facts from which the tribunal could properly and fairly conclude that there has been unlawful discrimination, the burden of proof shifts to the respondent.[189]If the burden shifts to the respondent, the respondent must provide an “adequate” explanation, which proves on the balance of probabilities that the respondent did not fail to make reasonable adjustments.[190]The respondent would normally be expected to produce “cogent evidence” to discharge the burden of proof. If there is a prima facie case and the explanation for that treatment is unsatisfactory or inadequate, then it is mandatory for the tribunal to make a finding of discrimination. The right to be accompanied[191]Section 10 of the Employment Relations Act 1999 gives workers the right to be accompanied to disciplinary or grievance hearings. Sub-sections 1 and 2A say: (1) “This section applies where a worker— (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b) reasonably requests to be accompanied at the hearing. (2A) Where this section applies, the employer must permit the worker to be accompanied at the hearing by one companion who— (a) is chosen by the worker; and (b) is within subsection (3)”.
Conclusions
[192]In this section we explain how we have applied these legal tests to our findings of facts about what happened in this case, to decide the issues for us. We have set out our conclusions in a different order to the list of issues. We have started with the whistleblowing dismissal and detriment complaints and the complaints of ordinary unfair dismissal and wrongful dismissal in claim 1. We have then explained 32 of 65 our conclusions on the discrimination, harassment and victimisation complaints in claim 1. Finally, we have explained our conclusions on the issues in claim 2. Actual protected disclosures (claim 1 issue 5)[193]The claimant alleges that he made two actual protected disclosures. The first was said to be contained in the letter which he handed to Mrs Borman at the disciplinary hearing on 14 December 2021. The second alleged protected disclosure was alleged to be contained in the claimant’s grievance of 2 February 2022.[194]In respect of both disclosures, we have found that, while the claimant believed that he was disclosing information which tended to suggest that the respondents had failed to comply with legal obligations under the Equality Act, he did not believe that the disclosure was made in the public interest. This means that neither the claimant’s letter of 14 December 2021 nor his grievance of 2 February 2022 amount to qualifying disclosures, because they do not meet all the requirements of section 43B of the Employment Rights Act.[195]The claimant did not make any actual qualifying or protected disclosure. Automatic and ordinary unfair dismissal (claim 1 issue 2)[196]As explained, we have not found that the claimant had any belief that his alleged actual protected disclosures were made in the public interest. They were not qualifying or protected disclosures. Therefore the claimant did not make any actual protected disclosures. This means that the reason or principal reason for the dismissal was not that the claimant had made a protected disclosure.[197]The complaint of automatic unfair dismissal under section 103A based on actual protected disclosures therefore fails.[198]The respondents have conceded that the decision to dismiss the claimant was made by Mrs Borman on 23 November 2021, before the disciplinary hearing took place on 14 December 2021, and that for this reason the dismissal is procedurally unfair under section 98 of the Employment Rights Act.[199]The complaint of ‘ordinary’ unfair dismissal therefore succeeds.[200]The question of whether the first respondent could have fairly dismissed the claimant if it had followed a fair procedure, and if so when, whether the claimant could have been fairly dismissed for some other reason, and whether the claimant contributed to his dismissal will be considered at the remedy hearing. Protected disclosure detriment (claim 1 issue 7)[201]For the same reason as the complaint of automatic unfair dismissal, the complaints of protected disclosure detriment based on actual protected disclosures fail. We have not found that the claimant made the alleged actual protected disclosures. Therefore the treatment that he says amounted to detriments was not done on the ground that he had made a protected disclosure. 33 of 65[202]Even if we had found that the claimant had made (actual) protected disclosures, we would not have found this complaint to have been made out because:202.1 Issue7.1.1 concerns Mrs Borman refusing the claimant access to his work computer. As explained below in relation to issue 12.2.8, this treatment happened before the alleged protected disclosures were made, and so cannot have been caused by either of them. In any event, the claimant was allowed access to his laptop;202.2 We have not found that the treatment complained of in issue7.1.2 occurred. We have not found that Mrs Borman spoke to the claimant in a persistently sneering and demeaning manner on 14 December 2021. This complaint would have failed on the facts;202.3 In relation to issues7.1.3 and 7.1.4, we found that this treatment happened for different reasons. It was not done on the ground of (that is, it was not materially influenced by) any disclosure or comment by the claimant. We explain further in our conclusions on the complaints of discrimination and harassment what we have concluded about the reasons why this treatment happened (issues 9.2.8/11.1.4 and 9.2.9/11.1.5, below). Perceived protected disclosures (claim 1 issue 6)[203]The claimant also relies on perceived protected disclosures, alleging that he was dismissed or subjected to detriments because his employer perceived or believed that he had made a protected disclosure. This relates to comments 5 and 10.[204]We understand the claimant’s complaint in relation to perceived protected disclosures to be put in the following way. While the claimant does not accept that he made comments 5 and 10 (because he does not recall making them), he says that his employer believed that he made them and that, because of the content of comments 5 and 10, the employer had perception or belief that he made protected disclosures. He suggests that subjecting him to detriments on the ground of this perception or belief, or dismissing him by reason of it, falls within the scope of sections 47B and section 103A.[205]As explained in issue 6.1, a question arises here about the scope of the whistleblowing protections under the Employment Rights Act 1996. Sections 47B and 103A provide for protection against detriment and dismissal which is because of making protected disclosures. Section 47B makes unlawful a detriment ‘done on the ground that the worker has made a protected disclosure’. Section 103A says that a dismissal is unfair if the reason or principal reason for the dismissal is that the employee ‘made a protected disclosure’. It is a required element of both complaints that the employee made a protected disclosure. There is no provision extending either protection to circumstances in which the employer perceived or believed the employee to have made a protected disclosure. (Section 49B(1) relates to NHS employment only.)[206]We note that in this respect, the whistleblowing protections are narrower than the victimisation protection contained in section 27(1)(b) of the Equality Act 2010 which expressly includes protection from detriment which is done because the employer ‘believes that [the employee] has done or may do a protected act’. 34 of 65[207]In discussions following the investigatory meeting, the claimant referred to the right to freedom of expression. That is the right under article 10 of the European Convention on Human Rights. This suggests that a question of human rights law may potentially be engaged. We have no further information or submissions on the way the claimant puts his case on this, which is perhaps understandable as Ms Cook is a lay representative. Ms Cook did not explain in her closing comments the basis on which she says the express provisions of the whistleblowing protections of the Employment Rights Act should be read differently or modified to include a provision about perceived protected disclosures.[208]We understand the issue to be whether, applying section 3 of the Human Rights Act 1998, sections 47B and 103A of the Employment Rights Act 1996 read with article 10 of the European Convention on Human Rights include protection in cases where an employer has a perception or belief that an employee has made a protected disclosure, even if the employee has not made a protected disclosure.[209]Following the structured approach in X v Y, we start by considering our findings of fact as to the circumstances here:209.1 We found that the claimant made comments along the lines of comments 5 and 10;209.2 We have found that Mrs Borman, Ms Chadbone, Mrs Russell and Mr Russell believed that the claimant made comments along the lines of comments 5 and 10;209.3 We have not found that Mrs Borman, Ms Chadbone, Mrs Russell or Mr Russell had the perception or belief that the claimant had made a protected disclosure. Like the claimant himself, they did not see the disclosures as whistleblowing disclosures or as having any public interest element;209.4 This was not a question of the respondents turning a blind eye to the question of whether the claimant had made a protected disclosure. They simply did not think of the claimant’s comments in that way. Mrs Borman did not understand what the claimant meant when he suggested that he was a whistleblower. Ms Chadbone advised that the claimant’s comments were not whistleblowing disclosures, because they had no public interest element. Mrs Russell accepted Ms Chadbone’s advice. It did not cross Mr Russell’s mind that the claimant had made whistleblowing disclosures. The respondents’ position was understandable in circumstances where was no reference in the comments to any public interest and the claimant himself did not believe that there was any public interest in disclosing the information in comments 5 and 10. Further, the comments were made outside the first respondent’s whistleblowing policy, to a junior member of staff, not to the claimant’s line manager or a more senior manager.[210]We note that the circumstances in this case are very different to those in Bilsbrough v Berry Marketing Services Ltd (1401692/2018), in which the tribunal found the worker was subjected to a detriment for carrying out research as to how to make a disclosure to a regulator who was a prescribed person under section 43F. In that case, the employer was aware that the claimant had conducted research about 35 of 65 disclosures to the regulator, and this played a part in its treatment of the claimant. This feature was not present in the claimant’s case: Mr Russell did not think that the claimant’s conversation with Quilter during his suspension or any other step taken by the claimant was preparation for making a protected disclosure. He was not thinking of the claimant’s conduct in that way at all.[211]In circumstances where the relevant decision makers and those who carried out the alleged detrimental treatment did not have any perception or belief that the claimant had made protected disclosures, this complaint cannot succeed, even if the proper interpretation of sections 47B and 103A read with the right to freedom of expression under article 10 is as contended for by the claimant.[212]The complaints of automatic unfair dismissal and protected disclosure detriment based on perceived protected disclosures fail, because the relevant decisionmakers and those who carried out the treatment complained of did not have any perception or belief that the claimant had made protected disclosures. The reason or principal reason for the dismissal was not a perception or belief that the claimant had made protected disclosures, and the detrimental treatment complained of was not materially influenced by any perception or belief that the claimant had made a protected disclosure.[213]Our conclusions based on our findings of fact mean that whatever conclusion we reach on the interpretation point, the complaints based on perceived protected disclosures cannot succeed. Wrongful dismissal (claim 1 issue 4)[214]The claimant claims wrongful dismissal in respect of notice pay. We have to consider whether the claimant’s conduct as we have found it to have occurred was such that the respondent was entitled to dismiss the claimant without notice. We consider this objectively, not using a range of reasonable responses test.[215]We have found that the claimant did make comments to junior staff members as alleged.[216]As to whether this conduct was sufficiently serious to justify summary dismissal, we have found that:216.1 concerns about similar conduct by the claimant had been raised earlier in spring 2021 but the respondent did not make the claimant aware of them at this time or at any other stage before his suspension;216.2 the claimant was not given any warning about his conduct;216.3 the claimant was ‘fairly oblivious’ to the impact of ‘his moan and groan nature’;216.4 in his investigation meeting, the claimant accepted that relaying gripes to colleagues was not appropriate, and shortly afterwards, he gave an unreserved apology, and he emphasised this in his written comments following the disciplinary hearing; 36 of 65216.5 the comments were made internally, the respondents did not have any concerns about the claimant’s comments having any detrimental impact on client relationships or being any risk to the business;216.6 the claimant had a good record with the first respondent and was a valuable part of the team.[217]We conclude that the claimant’s conduct, viewed objectively, was not of a sufficiently serious nature to amount to a repudiatory breach justifying summary dismissal. It did not damage the trust and confidence between the employer and the employee to the extent that the respondent was entitled to dismiss him without notice.[218]We find that the claimant was not guilty of gross misconduct justifying summary dismissal. The complaint of wrongful dismissal succeeds. Direct age discrimination (claim 1 issue 9)[219]The claimant makes 9 allegations of direct age discrimination. He relies on being in the age group of ‘over 65’ and compares his treatment with people in the age group ‘under 65’.[220]We have first reminded ourselves of our findings of fact on each of the allegations, and considered whether there is evidence from which we could conclude that there was less favourable treatment because of age, such that the burden shifts to the respondent. If the burden shifts to the respondent, we decide whether the respondents have satisfied us that the less favourable treatment of the claimant was not because of age, and if not, whether the treatment was a proportionate means of achieving a legitimate aim.[221]Issues9.2.1 and9.2.2 are about the questions to the claimant about retirement intention. We have found that:221.1 In about June 2020, in the context of the claimant’s partner’s upcoming retirement, Mr Russell asked the claimant, ‘So when are you thinking of retiring Rob?’; and221.2 In about June/July 2021 Mr Russell asked the claimant again when he intended to retire.[222]The claimant was not offended by this question on the first occasion. He was very uncomfortable about the question when it was asked again about a year later. The claimant’s discomfort was not justified. Asking the claimant about his retirement plans twice in a period of about 12 months did not amount to less favourable treatment or a detriment under section 39 of the Equality Act. It was asked in the context of three other advisers leaving in a two year period. The second time the claimant was asked was a few months after the third of those departures. The question was not asked because the respondents thought that the claimant should be thinking about retiring, in fact they preferred that he did not retire, because it was difficult to recruit financial advisers. Rather, it was a routine succession planning question which Mr Russell asked of other staff as well as the claimant, to assist him 37 of 65 to understand whether there would be a need in future to reorganise or employ more staff. The same question was asked of Mr Rees, the claimant’s comparator.[223]If we had found that the questions Mr Russell asked the claimant were less favourable treatment, we would have found that they were asked in part because of the claimant’s age, because they were about retirement. While he might have asked a younger person about career plans, Mr Russell would not have asked a younger person about intention to retire. However, we would have found that Mr Russell’s questions were justified for the following reasons:223.1 the respondent relied on the aim of succession planning, that is ensuring that the respondents were aware of the possibility of needing to reorganise, employ further staff;223.2 this is a legitimate social policy objective: the efficient planning of the departure and recruitment of staff is one of the examples given in the Supplement to the EHRC Statutory Code;223.3 the respondent’s aim was legitimate in the particular circumstances of the employment concerned, bearing in mind that three other advisers had left, in June 2020 the claimant was the respondent’s only active financial adviser other than Kevin Stannard, and that in June/July 2021 he was one of only two active financial advisers;223.4 the claimant’s personal circumstances (as he had told Mr Russell, his partner was approaching retirement in June 2020, she had retired by July/July 2021), and the fact that the question was asked twice over a period of 12 months mean that the way the respondent sought to achieve its aim was proportionate. We have not found that the question was put repeatedly or persistently as alleged by the claimant.[224]The complaint of direct age discrimination in relation to issues9.2.1 and9.2.2 fails for these reasons.[225]Issue 9.2.3 is a complaint that Mr Russell asked the claimant for his feedback on the possibility of the first respondent employing some part-time advisers - the claimant contends that this carried the implication that he would be moved to a parttime role.[226]We found that a discussion took place between the claimant and Mr Russell about part-time advisers, at some point before 14 October 2021, but that Mr Russell did not imply or suggest at any time that any work would be taken from the claimant or that the claimant would be moved to a part-time role.[227]In itself, asking the claimant for feedback on the possibility of employing some parttime advisers did not amount to less favourable treatment or a detriment under section 39 of the Equality Act. It was a discussion about a possibility, not a final position being imposed on the claimant. There was no implication of any consequent reduction in work for the claimant. On 22 October 2021 Mr Russell and the claimant (and Mr Rees) all agreed that there should be stability in terms of staffing for 12 months. Further, there was no evidence from which we could conclude that the discussion complained of was because of age, such that the burden would shift to the respondent. 38 of 65[228]The complaint of direct age discrimination in relation to issue 9.2.3 is not made out because the treatment did not occur as alleged. The treatment that we have found to have occurred did not amount to less favourable treatment and in any event, there was no evidence from which we could conclude that it was because of age.[229]Issue 9.2.4 is a complaint that Mr Russell sought to procure the claimant’s dismissal. We have not found that this occurred. We have found that Mrs Borman made the decision to dismiss the claimant and that Mr Russell was not involved in the decision at all. This complaint of direct age discrimination fails because the treatment complained of did not occur.[230]Issue 9.2.5 is a complaint that Mr Russell told the representative from Quilter that the claimant was suspended from work.[231]We have found that this took place as alleged: Mr Russell told Quilter’s representative on 13 December 2021 that the claimant was suspended. Mr Russell had first tried to deal with the issue without mentioning the claimant’s suspension, saying only that the claimant was out of the business and would not be able to make a meeting. The reason why Mr Russell told Quilter that the claimant was suspended was to explain why, despite confirming a meeting, the claimant would not be able to attend.[232]There is no evidence from which we could conclude that the claimant’s age played any part in Mr Russell’s decision to tell Quilter about his suspension. This complaint of age discrimination fails.[233]Issue 9.2.6 is a complaint about Mrs Borman’s decision to dismiss the claimant.[234]We have decided that there are facts from which we could conclude that age played a part in the claimant’s dismissal:234.1 Mr Russell’s two questions to the claimant about intended retirement; and234.2 The concerns about the claimant raised by Ms Wales and Mrs Beaumont’s in March 2021.[235]We could infer from these facts that the first respondent’s senior managers felt it was time for the claimant to retire and, faced with concerns about a decline in his abilities, and the claimant’s desire to continue working, they decided to dismiss him. The burden of proof shifts to the respondent on this complaint.[236]We are satisfied that the respondents have met the burden of proving that age did not play a part in Mrs Borman’s decision to dismiss the claimant. The respondents have provided cogent evidence which we have accepted that:236.1 the questions Mr Russell asked the claimant were about succession planning and were not motivated by any feeling that it was time for the claimant to retire;236.2 The dismissal was not procured by Mr Russell; 39 of 65236.3 In the financial services sector age is often seen in a positive light by clients, as it can be linked with experience and clients like to feel that their adviser has plenty of experience;236.4 The concerns raised by Ms Wales and Mrs Beaumont in March 2021 were mainly about the impact of covid lockdowns and were not based on any inappropriate age-related assumptions;236.5 The disciplinary process was started because of other genuine concerns raised with Mrs Borman by Ms Wales in October 2021 about comments which the claimant had made;236.6 Mrs Borman’s decision to dismiss was based on the comments which she accepted that the claimant had made, and her view about the comments (particularly the criticism of Mr Russell). The decision was not based on the claimant’s age. Mrs Borman would have reached the same decision in respect of an employee of any age making these comments.[237]In summary, the respondent’s dismissal of the claimant was not because of his age. It was because of the view Mrs Borman took of the claimant’s conduct. The claimant’s age played no part in her reaching that view or in her decision. The complaint of age discrimination in issue 9.2.6 fails for these reasons.[238]Issue 9.2.7 is a complaint about the failure by Mrs Russell to uphold the claimant’s appeal against dismissal.[239]This took place as alleged: Mrs Russell rejected the claimant’s appeal and upheld his dismissal. In her witness statement, Mrs Russell said that when making her decision, she took into account the claimant’s age, length of service and the fact that he had apologised. This is a fact from which we could conclude that age played a part in her decision not to uphold the appeal. The burden shifts to the respondents on this complaint.[240]We are satisfied that the reason Mrs Russell upheld the decision to dismiss was because she followed Ms Chadbone’s advice and recommendation and not because of the claimant’s age. Mrs Russell is not experienced in HR matters and relied entirely on Ms Chadbone. We have accepted that Mrs Russell’s reference to the claimant’s age in her witness statement was to mitigating factors and that she only took age into account in that context, not in the context of her appeal decision.[241]We are also satisfised that age did not play any part in Ms Chadbone’s report and recommendation. Ms Chadbone carried out a thorough and detailed appeal investigation:241.1 she carefully assessed the fairness of the procedure which the first respondent had followed;241.2 she noted a gap in the original investigation and obtained a statement from Mr Russell to fill that gap;241.3 she reviewed the findings and conclusions of the dismissal manager;241.4 she fully considered the points raised by the claimant in his appeal;241.5 she did not rely on the claimant’s age or suggest that retirement issues were relevant in any way;241.6 she concluded that the dismissal was proportionate, fair and reasonable. 40 of 65[242]Mrs Russell’s appeal decision was in no sense because of the claimant’s age. It was because she followed the recommendation of Ms Chadbone; Ms Chadbone’s recommendation was not in any sense because of the claimant’s age. The complaint of age discrimination in issue 9.2.7 fails for these reasons.[243]Issue 9.2.8 is a complaint about Mr Russell’s failure to deal with the claimant’s grievance.[244]We have decided that Mr Russell’s two questions to the claimant about intended retirement are facts from which we could conclude that age played a part in the response to the claimant’s grievance. We could infer from these facts that Mr Russell did not deal with the claimant’s grievance because he had subjected the claimant to age discrimination, and he wanted to avoid further scrutiny of his actions. The burden of proof shifts to the respondent on this complaint.[245]We are satisfied that the respondents have met the burden of proving that age did not play a part in Mr Russell’s decision not to deal with the claimant’s grievance. The respondents have provided cogent evidence which we have accepted that the reason for the failure to deal with the grievance was that Mr Russell felt that the issues raised had already been dealt with in the disciplinary investigation and the appeal. An independent HR consultant had dealt with the appeal. Mr Russell was not seeking to avoid scrutiny at the grievance stage; an external HR consultant had already been involved at an earlier stage in the related appeal process.[246]The complaint of age discrimination in issue 9.2.8 fails for these reasons.[247]Issue 9.2.9 is a complaint about how Mr Russell dealt with the claimant’s subject access request. We reach similar conclusions in respect of this issue as with issue 9.2.8.[248]We have decided that Mr Russell’s two questions to the claimant about intended retirement are facts from which we could conclude that age played a part in the response to the claimant’s subject access request. We could infer from these facts that Mr Russell responded in this way because he had subjected the claimant to age discrimination, and he wanted to avoid further scrutiny of his actions. The burden of proof shifts to the respondent on this complaint.[249]We are satisfied that the respondents have met the burden of proving that age did not play a part in the way Mr Russell dealt with the claimant’s subject access request. The respondents dealt with the request poorly, but the reason the respondents replied as they did was because of a concern about the likely costs of providing the information requested, together with a lack of understanding about the subject access request procedure and the scope of the fees which are permissible under the legislation.[250]The complaint of age discrimination in issue 9.2.9 fails for these reasons. Indirect age discrimination (claim 1 issue 10) 41 of 65[251]Indirect age discrimination arises when an employer has a provision, criterion or practice (PCP) which is applied generally and which appears to be neutral but actually works to the comparative disadvantage of people with a particular protected characteristic, such as older people.[252]The complaint of indirect age discrimination is based on the application by the first respondent of the following PCPs:252.1 A practice of expecting or encouraging employees to retire if their partner retired.252.2 An informal practice of attempting to prevent or discourage workers over the age of 65 from working full-time.[253]The first respondent did not have either of these PCPs:253.1 In relation to PCP1, the claimant’s partner’s upcoming retirement was the context in which Mr Russell asked the claimant about his retirement plans, for succession planning purposes. However, Mr Russell was not expecting or encouraging the claimant to retire. He was only asking the question. He would have preferred the claimant not to retire, because it was difficult to recruit financial advisers.253.2 In relation to PCP2, we have not found that the first respondent had any practice, formal or informal, of attempting to prevent or discourage workers over the age of 65 from working full-time. Recruitment of financial advisers was difficult. The claimant was over 65 when he was hired by the respondents. We have found that Mr Russell had one conversation with the claimant about the possibility of hiring additional part-time financial advisers. We have found that in doing so, Mr Russell was not implying or suggesting that the claimant should reduce his hours.[254]As the first respondent did not have either of the PCPs relied on by the claimant, this complaint fails. Harassment related to age (claim 1 issue 11)[255]We have first reminded ourselves of our findings of fact on each of the allegations, and then considered whether there is evidence from which we could conclude that there was unwanted conduct which had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.[256]If there is, the burden of proof shifts to the respondent to satisfy us that any such conduct is not related to age. If the burden shifts to the respondent, we decide whether the respondents’ less favourable treatment of the claimant was because of age, and if so whether it was a proportionate means of achieving a legitimate aim.[257]The claimant makes 5 allegations of harassment related to age against the first respondent and Mr Russell. 42 of 65[258]Issue 11.1.1 concerns Mr Russell’s question which he asked the claimant in June 2020 about retirement. We found that this occurred as alleged. The question was related to age, as it concerned retirement. However, the question did not amount to unwanted conduct which had the purpose or effect of violating the claimant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. The claimant was not offended by the question. He understood why Mr Russell needed to ask it, to consider whether he might have to plan for the departure of another financial adviser.[259]This complaint fails.[260]Issue 11.1.2 concerns the second occasion on which Mr Russell asked the claimant about his retirement plans. This was in June/July 2021. We found that this occurred as alleged and it made the claimant very uncomfortable. We have concluded that this was unwanted conduct which had the effect of creating an offensive environment for the claimant. It was related to age as it concerned retirement.[261]However, we have concluded that it was not reasonable for the question to have that effect on the claimant. The subject of retirement plans had initially come up because of the claimant’s partner’s retirement. It was only the second time in a year which Mr Russell had asked about the claimant’s plans. It was not asked in an offensive way. It was asked a few months after another adviser had left.[262]This complaint fails because it was not reasonable for the conduct to have the effect it did.[263]Issue 11.1.3 is a complaint that Mr Russell asked the claimant for his feedback on the possibility of employing some part-time advisers, which the claimant contends carried the implication that he himself would have to work part-time. This did not happen entirely as alleged by the claimant. We found that one discussion took place between the claimant and Mr Russell about taking on part-time advisers, at some point before 14 October 2021, but that Mr Russell did not imply or suggest at any time that any work would be taken from the claimant or that the claimant would be moved to a part-time role.[264]In itself, asking the claimant for feedback on the possibility of employing some parttime advisers did not amount to unwanted conduct. It was a discussion about a possibility, not a final position being imposed on the claimant. There was no implication of any consequent reduction in work for the claimant. On 22 October 2021 Mr Russell and the claimant (and Mr Rees) all agreed that there should be stability in terms of staffing for 12 months. Further, there was no evidence from which we could conclude that the discussion complained of was related to age.[265]The complaint of age-related harassment in relation to issue 11.1.3 is not made out because the treatment did not occur as alleged. The treatment that we have found to have occurred did not amount to unwanted conduct. It was not reasonable for the claimant to be offended by being asked for his feedback on the possibility of the first respondent taking on additional part-time advisers. In any event, there was no evidence from which we could conclude that the discussion which we found to have taken place was related to age. 43 of 65[266]Issue 11.1.4 is a complaint about Mr Russell’s refusal to deal with the claimant’s grievance and issue 11.1.5 is about the way in which Mr Russell dealt with the claimant’s subject access request. For the reasons we have explained in connection with the complaint of direct age discrimination, we have accepted the respondents’ explanation for the reasons why this conduct took place, and we are satisfied that this conduct was not in any way related to age.[267]Issue 11.2.1 is a complaint against the first respondent and against Mrs Borman. The claimant alleges that Mrs Borman spoke to him in a sneering and demeaning manner throughout the disciplinary hearing. We have found that she did not do so. This complaint fails because it did not happen as alleged.[268]The claimant makes three other complaints of harassment related to age against the first respondent only.[269]Issue 11.3.1 is a complaint that the first respondent’s appointment of Ms Dunsby as investigation officer and Mrs Borman as dismissal officer was age-related harassment because they were of insufficient seniority.[270]This was not unwanted conduct. The first respondent is a small business and had little choice as to who to appoint to deal with the claimant’s disciplinary proceedings. Neither Ms Dunsby nor Mrs Borman were involved in the matters which formed the basis of the allegations against the claimant. It was not reasonable for the claimant to be offended by their appointment. There was no evidence from which we could conclude that the appointments were in any way related to age.[271]Issue 11.3.2 is a complaint that taking disciplinary action against the claimant amounted to age-related harassment. Issue 11.3.3 is a complaint that the first respondent included comment 12 within the disciplinary process.[272]These were decisions taken by Mrs Borman with advice from the first respondent’s HR advisers. There was no evidence from which we could conclude that her decisions were in any sense because of the claimant’s age. In any event, if there had been, we have accepted her evidence that the disciplinary action was taken because of the complaint against the claimant made by Ms Wales and not for any reason relating to age. We accept that comment 12 was not included for any reason relating to age, but because it was one of the comments on Ms Wales’ list.[273]None of the complaints of age-related harassment under issue 11.3 succeed. None of the conduct was related to age. Victimisation (claim 1 issue 12)[274]The claimant says he did two protected acts.[275]Issue 12.1.1: the first alleged protected act is comment 12 which the claimant accepted that he made to Ms Wales. We found that this was made on 14 October 2021. We found that comment 12 was not an allegation of a contravention of the 44 of 65 Equality Act 2010. Comment 12, as made to Ms Wales on 14 October 2021, did not fall within any of the sub-sections of section 27(2) and was not a protected act.[276]Issue 12.1.2: the second alleged protected act is the letter the claimant gave to Mrs Borman on 14 December 2021 in which he alleged that the respondents had discriminated against him. We have found that it was understandable from the letter that the claimant was making an allegation of age discrimination and harassment, that is that he was making an allegation that there had been a contravention of the Equality Act 2010. The letter of 14 December 2021 was a protected act.[277]The claimant says that he was subjected to four acts of detriment because of making protected disclosures.[278]Issues12.2.1 and12.2.2 are complaints against the first respondent only. The claimant says that he was subjected to detriments by the starting of a disciplinary investigation and of disciplinary action. These acts took place on 9 and 23 November 2021.[279]We have not found that comment 12 was a protected act. The protected act of 14 December 2021 occurred after these two acts and therefore could not have been the reason for them. These two complaints of victimisation fail for this reason.[280]Issue 12.2.3 is a complaint against the first respondent and Mrs Borman. The claimant says he was subjected to a detriment by Mrs Borman refusing to have access to his laptop. We have found that there were some discussions about this between the claimant and Mrs Borman, and that the claimant was allowed access to his laptop on 8 December 2021. Mrs Borman’s actions in relation to this request prior to permitting access could not have been because of the claimant’s 14 December protected act, because they pre-dated the protected act. This complaint of victimisation fails for this reason.[281]Issue 12.2.4 is a complaint against the first respondent and Mrs Borman. The claimant says he was subjected to a detriment by Mrs Borman dismissing him. The claimant was dismissed by Mrs Borman.[282]However, there is no evidence from which we could conclude that this was because of the claimant’s protected act on 14 December 2021. We have found that the reason Mrs Borman dismissed the claimant was because of the comments he made and that Mrs Borman had already decided to dismiss the clamant by 23 November 2021, prior to the claimant’s first protected act. This complaint of victimisation also fails. Breach of contract (claim 1 issue 14)[283]The claimant says that progressing with the disciplinary hearing on 14 December 2021 when the claimant was signed off work by his doctor was in breach of the respondent’s duty of care and health and safety obligations and in breach of the respondent’s contractual disciplinary procedure.[284]We have found that the disciplinary procedure was not part of the claimant’s contract of employment. It was part of the employee handbook which expressly 45 of 65 said it did not form part of the employee’s contract of employment. There was no contractual term in the claimant’s contract which entitled the claimant not to be asked to attend a disciplinary hearing while signed off work by his doctor. This complaint of breach of contract fails. Right to be accompanied (claim 1 issue 15)[285]The claimant says that he was denied the right to be accompanied at the disciplinary hearing on 14 December 2021 and at the appeal hearing on 18 January 2022.[286]The respondent did not fail to permit the claimant his right to be accompanied to either hearing. The right is for the worker to be accompanied by a companion who is chosen by the worker. The respondent informed the claimant of his right to be accompanied in both invitation letters. The respondent agreed to assist the claimant to identify a companion. Initially Mr Rees agreed to attend the disciplinary hearing but was unable to do so because of a client meeting. The respondent offered Ms Dunsby, but the claimant did not want to be accompanied by her. The claimant did not propose any other companion.[287]At the appeal stage the position was similar. The claimant asked Mr Rees to accompany him but he had a client meeting. The claimant asked Mrs Borman to nominate someone. She did not do so.[288]The employer’s duty under section 10 of the Employment Relations Act 1999 is to permit the worker to be accompanied by a companion chosen by the worker, not to provide a companion. The first respondent went beyond this duty by trying to help the claimant to identify a companion, but it was unable to do so. In proceeding with the disciplinary and appeal hearings without nominating a companion for the claimant, the first respondent was not failing to comply with its duty under section 10. Employment Particulars (claim 1 issue 16)[289]We have found that on 21 May 2018 the claimant was given a contract of employment with the employer named as ‘Polestar’. That was correct at the time and was compliant with the requirement under section 1 (albeit provided slightly late). There was no breach in relation to the pension information provided: in respect of pension information, section 2(2) of the Employment Rights Act 1999 allows an employer to refer the worker to another document which is reasonably accessible to the worker. Here, the claimant was referred to the employee handbook which was reasonably accessible to him because he had been given a copy at induction.[290]After the claimant’s employer changed in about April 2019 from Polestar (the partnership) to Polestar Holdings Limited, the claimant was not given a written statement notifying this change. The draft contract which the claimant was given on 23 February 2021 did not meet the duty to provide particulars of the change, firstly because it expressly said it was a draft document and secondly because it named a 46 of 65 different company as employer (Polestar Financial Planning Limited). This was not the claimant’s employer.[291]Therefore the respondent failed to comply with section 4 of the Employment Rights Act in respect of the change of employer which occurred in April 2019. At the time these proceedings began, the first respondent had not given the claimant a written statement of the change to the particulars provided in 2018 and was therefore in breach of its duty under section 4.[292]The award payable in respect of this breach will be considered at the remedy hearing. Issues in claim 2[293]We now consider the issues for determination in claim 2. Claim 2 was presented on 17 August 2023, after early conciliation with the first respondent from 17 July to 2 August 2023 and with the second respondent from 15 August 2023 to 17 August 2023. Correct employer (claim 2 issue 1)[294]The claimant’s employer was Polestar Holdings Limited (the first respondent in claim 1) not Polestar Financial Planning Limited (originally named as the first respondent in claim 2).[295]We substitute Polestar Holdings Limited for Polestar Financial Planning Limited as the first respondent in claim 2. We make this substitution under rule 35 of the Employment Tribunal Procedure Rules 2024. It was accepted by all parties that the claimant’s employer is aware of and has been participating in proceedings in both claim 1 and claim 2. The substitution of Polestar Holdings Limited as the first respondent in claim 2 is to ensure that the claimant’s employer is correctly named. Unauthorised deductions (claim 2 issues 3 and 4)[296]The claimant claims £145.70 in fees he says he earned in August 2021, unquantified fees earned in September and October 2021 and compensation for fees he would have earned in November and December 2021 if he had not been suspended (issue 3).[297]The claimant also says the respondent wrongly calculated his pay in lieu of holiday which was accrued but untaken at the time his employment ended. Specifically, he says the holiday pay was calculated by reference to basic pay only and should have included fees (issue 4).[298]Both complaints are based on the claimant’s entitlements under the proposed new contract which was sent to the claimant in February 2021 and which was the subject of ongoing discussions between the claimant and the first respondent. We have found that the first respondent’s accounts manager was still waiting for confirmation of when the fees would be paid to the claimant, that is when he had accepted the new terms. 47 of 65[299]An amended draft contract was sent to the claimant on 24 October 2021. The claimant had not accepted the new terms at the time of the termination of his employment.[300]Therefore, the fees and holiday pay claimed by the claimant were not properly payable to the claimant because, at the time of his dismissal, he had not accepted the terms under which they would have been payable. There was therefore no deduction from the claimant’s wages. These complaints fail. Direct age discrimination (claim 2 issue 5) and victimisation (claim 2 issue 6)[301]The claimant makes three complaints of direct age discrimination in claim 2. He also makes a complaint of victimisation. These complaints are brought against the first and second respondents.[302]Issues 5.2.1 and 5.2.3 are connected with the unauthorised deductions complaints. The claimant says that, because of his age, the respondents failed to calculate, notify and pay fees due to him for the period from August 2021 to December 2021 and incorrectly calculated his holiday pay.[303]These complaints fail against both respondents because they are not made out on the facts. We have found that the claimant was not entitled to these fees or to additional holiday pay, because (as he agrees) he had not accepted the new terms at the time of his dismissal. The fees were not due to him, and the holiday pay was correctly calculated. Put another way, as the claimant accepted during crossexamination on this point, the respondents’ treatment of the claimant in respect of the notification of fees and calculation of holiday pay was nothing to do with the claimant’s age. It was because the respondent (correctly) thought that the fees and holiday pay claimed were not payable under the claimant’s existing contract, only under the terms of the proposed new contract. The new terms were never in place because, as the claimant agrees, the claimant did not accept them.[304]Issue 5.2.2 is a complaint of direct age discrimination in which the claimant complains that the respondents alleged that he had been overpaid contractual sick pay (the ‘overpayment claim’). The same factual matter is relied on in the complaint of victimisation (issue 6.2.1).[305]The respondent’s counter-claim in claim 2 in respect of the alleged overpayment was not accepted as a complaint before us, as explained in the issues section above. We are not determining whether there was in fact an overpayment. Rather, we are considering the claimant’s complaints that ‘the overpayment claim’ amounts to:305.1 less favourable treatment because of age; and/or305.2 a detriment to which he was subjected because he had presented a complaint to the employment tribunal on 16 March 2022 (that is, because he had presented claim 1). 48 of 65[306]In relation to the complaint of victimisation, the presentation of claim 1 was a protected act within section 27(2)(a) because it included a complaint of age discrimination under the Equality Act. It was ‘bringing proceedings under’ the Equality Act.[307]We have found that the factual basis of these two complaints occurred as alleged. The respondents said that the claimant had been overpaid while on sick leave and that they were seeking repayment. They did so:307.1 in the response to the claimant’s further information about claim 1 which he provided on 8 February 2023;307.2 in a proposal to resolve the issue on 25 May 2023;307.3 in June 2023 in the course of preparations for the liability hearing (which at that time only related to claim 1); and307.4 in the response to claim 2.[308]The ‘overpayment claim’ was made firmly in the context of the existing litigation between the parties, in order to clarify and protect the respondents’ position in respect of an additional issue which was developing between the parties. The respondents’ communications about ‘the overpayment claim’ were appropriately measured and they were accurate in relation to the contractual position (the claimant’s contract only provided for SSP, not full pay during sick leave). They explained the respondent’s position. They set out in measured and accurate terms the possible consequences which might arise if the claimant continued to pursue his claim for fees, that is that a claim to set off the overpayment would be made. They made a sensible proposal to resolve the issue. They did not put undue pressure on the claimant to accept the proposal. The respondents were responding in an appropriate way to an issue which had arisen in the litigation, rather than being vindictive towards the claimant because he had brought his claim.[309]Any distress or worry which was induced by the ‘overpayment claim’ cannot constitute a detriment to the claimant. The making of the ‘overpayment claim’ and the communications about it were part and parcel of the communications between the parties in the course of litigation. They were not circumstances which were so unusual as to amount to a detriment for the purposes of the victimisation provisions.[310]The complaint of victimisation in claim 2 therefore fails.[311]As far as the age discrimination complaint is concerned, the less favourable treatment relied on for the purposes of section 13 must also amount to a detriment under section 39(2)(d), because it does not fall within any of the other sub-sections in section 39(2). As we have found that the ‘overpayment claim’ did not amount to a detriment to the claimant, the complaint of direct age discrimination in issue 5.2.2 also fails for this reason.[312]In any event, we have not found any facts from which we could decide that the ‘overpayment claim’ made by the respondent was because of the claimant’s age. There is no evidence from which we could decide that the respondent would have treated a younger person any differently in circumstances which were not materially 49 of 65 different to the claimant’s. The burden of proof on this complaint does not shift to the respondent.[313]This means that none of the complaints of direct age discrimination in claim 2 succeed. The claim in the round[314]The need to focus on individual complaints can lead to a failure to see the bigger picture. Having reached our conclusions on the individual complaints, we step back and consider the claim in the round.[315]The respondents have accepted that the dismissal of the claimant was unfair on ordinary principles, because the decision to dismiss him was made before his disciplinary hearing. We have found that the conduct for which the claimant was dismissed was not sufficiently serious to justify summary dismissal.[316]However, we are satisfied that none of the respondent’s treatment of the claimant or his dismissal were because of his age. He was over 65 at the time of his appointment. He soon became a valued member of the team. The respondents found it difficult to recruit financial advisers, and did not form the view at any time that the claimant ought to retire. Other financial advisers had left, and Mr Russell asked the claimant about retirement so the respondents would have as much notice as possible if he was also thinking of leaving and they would need to recruit. The reason for the claimant’s dismissal was because the respondents were unhappy about the comments which the claimant had made about the business and about Mr Russell, and they would have taken the same view whatever the age of the person making the comments. Further, the respondents did not at any material time perceive the claimant as a whistleblower; that was not the reason for their treatment of him or for his dismissal. Summary[317]In summary, the claimant’s complaints of unfair dismissal and wrongful dismissal in respect of notice succeed. We have also found that the respondent failed to comply with the requirement to provide a written statement of particulars under section 4 of the Employment Rights Act 1996. The claimant’s other complaints do not succeed.[318]A remedy hearing has been scheduled. Case management orders to prepare for the hearing will be sent separately. Approved by: Employment Judge Hawksworth Date: 3 February 2025 For the Tribunals Office 50 of 65 Appendix – list of complaints and issues The complaints
Introduction
[1]The complaints in claim 1 are:1.1 Automatic unfair dismissal on the ground of having made (or being perceived to have made) protected disclosures;1.2 Ordinary unfair dismissal [now conceded by the respondent];1.3 Wrongful dismissal in relation to notice;1.4 Detriment for having made (or being perceived to have made) protected disclosures;1.5 Direct age discrimination;1.6 Indirect age discrimination;1.7 Harassment related to age;1.8 Breach of contract by non-compliance with contractual disciplinary procedures;1.9 Refusal to permit the claimant to be accompanied to disciplinary and appeal hearings.[2]The complaints in claim 2 are:2.1 Unauthorised deduction from wages in relation to fees due to the claimant in the period from August 2021 to December 2021;2.2 unauthorised deduction from wages in relation to the calculation of pay for untaken holiday on termination of employment;2.3 direct age discrimination about:2.3.1 the failure to calculate, notify and make payment of fees due to the claimant in the period from August 2021 to December 2021;2.3.2 the calculation of pay for untaken holiday;2.3.3 the respondents’ claim that the claimant was not entitled to contractual sick pay and that it is entitled to recover £2,030.77 by way of overpayment from the claimant;2.4 victimisation in relation to the respondent’s claim that the claimant was not entitled to contractual sick pay and that it is entitled to recover £2,030.77 by way of overpayment from the claimant. 51 of 65[3]The claim that fees should form part of the calculation of notice pay is part of the calculation of remedy in the claimant’s complaint of wrongful dismissal which is already included in claim 1. The Issues in claim 1[1]Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 19 November 2021 may not have been brought in time.1.2 Were the discrimination, harassment, and victimisation complaints (particularly those set out at paragraphs 9.2.1, 9.2.2, 9.2.3, 11.1.1, 11.1.2, 11.1.3, and 12.2.1 below) made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?[2]Unfair dismissal2.1 [The respondents now accept that the Claimant was unfairly dismissed by the First Respondent because Mrs Borman decided to dismiss the claimant before the disciplinary hearing.]2.2 Was the reason or principal reason for dismissal that the claimant made (or, if relevant having regard to paragraph 6.1 below, was perceived to have made) a protected disclosure? The protected disclosures relied upon are set out at paragraphs 5 and 6 below. If so, the claimant will be automatically unfairly dismissed.2.3 If the Claimant was not dismissed for making protected disclosures, the dismissal will be unfair under ‘ordinary’ unfair dismissal principles (sections 94 and 98 of the Employment Rights Act 1996).[3]Remedy for unfair dismissal – for remedy hearing3.1 Does the claimant wish to be reinstated to his previous employment? 52 of 653.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?3.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.3.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.3.5 What should the terms of any re-engagement order be?3.6 If there is a compensatory award, how much should it be? The Tribunal will decide:3.6.1 What financial losses has the dismissal caused the claimant?3.6.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?3.6.3 If not, for what period of loss should the claimant be compensated?3.6.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?3.6.5 If so, should the claimant’s compensation be reduced? By how much?3.6.6 If the claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct?3.6.7 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?3.6.8 Does the statutory cap of fifty-two weeks’ pay or £86,444 apply?3.7 What basic award is payable to the claimant, if any?3.8 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?[4]Wrongful dismissal / Notice pay4.1 What was the Claimant’s notice period?4.2 Was the Claimant paid for that notice period?4.3 If not, was the Claimant guilty of gross misconduct, such that the First Respondent was entitled to dismiss without notice?[5]Protected disclosures – actual disclosures 53 of 655.1 Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Claimant relies on the following alleged disclosures:5.1.1 In a letter provided to the Third Respondent on 14 December 2021, alleging that the Respondents had discriminated against him.5.1.2 In his grievance sent to the Second Respondent on 2 February 2022, alleging that the Respondents had discriminated against him5.2 Did the above communications disclose information?5.3 Did the Claimant believe that the disclosure of information was made in the public interest?5.4 Was that belief reasonable?5.5 Did the Claimant believe that the information disclosed tended to show that a person had failed, was failing, or was likely to fail to comply with any legal obligation?5.6 Was that belief reasonable?5.7 Were the disclosures made to the Claimant’s employer, so as to be protected disclosures?5.8 Alternatively, were the disclosures made to one of the categories of people listed in sections 43D to 43H of the Employment Rights Act 1996, in circumstances that complied with the requirements for making such a disclosure were met, so as to be protected disclosures?5.9 Is the grievance capable of being a protected disclosure for the purposes of the Employment Rights Act, given that it occurred after the termination of the Claimant’s employment?[6]Protected disclosures – perceived disclosures6.1 Do sections 47B and 103A of the Employment Rights Act 1996 protect an employee from detriment or dismissal on the grounds of an employer’s perception or belief that the employee had made a protected disclosure (even if that perception or belief was incorrect)?6.2 Did the First Respondent perceive that the Claimant had made the following disclosures (which the Claimant in fact denies making):6.2.1 An allegation that the Second Respondent had breached the contract of an employee by not paying her £6,000 that she was 54 of 65 owed (the perceived disclosure relied upon is set out at paragraph 21(e) of the Particulars of Claim).6.2.2 An allegation that an employee had been wrongfully dismissed (the perceived disclosure relied upon is set out at paragraph 21(j) of the Particulars of Claim).6.3 If the First Respondent did perceive these disclosures to have been made, did it perceive them to have been protected disclosures? 6.3.1 What is required for a Respondent to have a belief that disclosures had been protected disclosures? Is it required, for example, to believe that the Claimant believed that the information disclosed was in the public interest and showed one of the matters set out in section 43B(1) of the Employment Rights Act 1996? Or does it also have to believe that such beliefs were not only held by the Claimant, but were reasonably held?[7]Detriment (Employment Rights Act 1996 section 48) This claim is brought only against the First Respondent.7.1 Did the First Respondent do the following things:7.1.1 By the Third Respondent, between 23 November 2021 and 14 December 2021, refusing to allow the Claimant access to his work PC to prepare for his disciplinary hearing.7.1.2 By the Third Respondent, speaking to the Claimant in a persistently sneering and demeaning manner throughout the disciplinary meeting on 14 December 2021.7.1.3 Failing to consider the Claimant’s grievance.7.1.4 By the Second Respondent, not complying with the Claimant’s subject access request in February 2022.7.2 By doing so, did it subject the claimant to detriment?7.3 If so, was it done on the ground that the Claimant had made a protected disclosure as set out in paragraph 5 above?7.4 Alternatively, was it done on the ground that the Claimant was perceived to have made a protected disclosure, as set out in paragraph 6 above? If so, does this give rise to a cause of action?[8]Remedy for Protected Disclosure Detriment8.1 What financial losses has the detrimental treatment caused the claimant?8.2 Has the claimant taken reasonable steps to replace any lost earnings, for example by looking for another job? 55 of 658.3 If not, for what period of loss should the claimant be compensated?8.4 What injury to feelings has the detrimental treatment caused the claimant and how much compensation should be awarded for that?8.5 Has the detrimental treatment caused the claimant personal injury and how much compensation should be awarded for that?8.6 Is it just and equitable to award the claimant other compensation?8.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?8.8 Did the respondent or the claimant unreasonably fail to comply with it?8.9 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?8.10 Did the claimant cause or contribute to the detrimental treatment by their own actions and if so would it be just and equitable to reduce the claimant’s compensation? By what proportion?8.11 Was the protected disclosure made in good faith?8.12 If not, is it just and equitable to reduce the claimant’s compensation? By what proportion, up to 25%?[9]Direct age discrimination (Equality Act 2010 section 13) All allegations are brought against the First Respondent. All allegations other than that numbered 9.2.7 are also brought against the Second Respondent. The allegation numbered 9.2.6 is also brought against the Third Respondent. The allegation numbered 9.2.7 is also brought against the Fourth Respondent.9.1 The claimant’s age group is over the age of 65 and he compares himself with people in the age group under 65.9.2 Did the Respondents do the following things:9.2.1 In June 2020, the Second Respondent asked the Claimant when he intended to retire.9.2.2 In June or July 2021, the Second Respondent asked the Claimant when he intended to retire.9.2.3 In October 2021, the Second Respondent asked the Claimant for his feedback on the possibility of the First Respondent employing some part-time advisers – the Claimant contends that this carried the implication that he would be moved to a part-time role. 56 of 659.2.4 In around December 2021, the Second Respondent sought to procure the Claimant’s dismissal.9.2.5 In December 2021, the Second Respondent told the Claimant’s competency assessor that the Claimant was suspended from work.9.2.6 On 24 December 2021, the Third Defendant dismissed the Claimant (as procured by the Second Respondent).9.2.7 In around January 2022, the Fourth Defendant refused the Claimant’s appeal against dismissal.9.2.8 In February 2022, the Second Respondent failed to deal with the Claimant’s grievance.9.2.9 On or around 23 February 2022, the Second Respondent refused to provide documents in response to the Claimant’s subject access request.9.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether s/he was treated worse than someone else would have been treated. The claimant says he was treated worse than the First Respondent’s employees named Sharon, Natasha, and Hywel, all of whom were younger than him. Alternatively, he relies upon a hypothetical comparator.9.4 If so, was it because of age?9.5 Is the matter alleged at paragraph 9.2.9 above discrimination against an employee within the meaning of section 39 of the Equality Act, and so actionable in the employment tribunal, given that a subject access request is not necessarily connected to the Claimant’s employment?9.6 Was the treatment a proportionate means of achieving a legitimate aim? The Respondents are required to identify the legitimate aims relied upon in their amended Grounds of Resistance, and may not rely upon any alleged legitimate aims which are not set out in the amended Grounds of Resistance without the Tribunal’s permission.9.7 The Tribunal will decide in particular:9.7.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;9.7.2 could something less discriminatory have been done instead; 57 of 659.7.3 how should the needs of the claimant and the respondent be balanced?[10]Indirect discrimination (Equality Act 2010 section 19) This claim is brought against the First Respondent only.10.1 A ‘PCP’ is a provision, criterion or practice. Did the First Respondent have the following PCPs:10.1.1 A practice of expecting or encouraging employees to retire if their partner retired.10.1.2 An informal practice of attempting to prevent or discourage workers over the age of 65 from working full-time?10.2 Did the First Respondent apply the PCPs to the claimant?10.3 Did the First Respondent apply the PCPs to employees under the age of 65, or would it have done so?10.4 Did the PCPs put employees over the age of 65 at a particular disadvantage when compared with employees under the age of 65, in that(i) in respect of the PCP at 10.1.1 above, they were more likely to be expected or encouraged to retire, as they were more likely to have retired partners;(ii) in respect of the PCP at 10.1.2, they were more likely to be encouraged to retire by reason of their age; and(iii) in respect of both PCPs, they were more likely to be dismissed?10.5 Did the PCPs put the Claimant at that disadvantage?10.6 Were the PCPs a proportionate means of achieving a legitimate aim? The First Respondent is required to identify the legitimate aims relied upon in their amended Grounds of Resistance, and may not rely upon any alleged legitimate aims which are not set out in the amended Grounds of Resistance without the Tribunal’s permission.10.7 The Tribunal will decide in particular:10.7.1 was the PCP an appropriate and reasonably necessary way to achieve those aims;10.7.2 could something less discriminatory have been done instead;10.7.3 how should the needs of the claimant and the respondent be balanced?[11]Harassment related to age (Equality Act 2010 section 26) 58 of 65 All allegations in paragraph11.1 below are brought against the First and Second Respondents. All allegations in paragraph11.1.1 in June 2020, the Second Respondent asked the Claimant when he intended to retire.11.1.2 in June/July 2021 the Second Respondent asked the Claimant when he intended to retire.11.1.3 In October 2021 the Second Respondent asked the Claimant for his feedback on the First Respondent employing some part-time advisers, which the Claimant contends carried the implication that he himself would have to work part-time.11.1.4 In February 2022, the Second Respondent refused to deal with the Claimant’s grievance.11.1.5 On or around 23 February 2022, the Second Respondent refused to provide documents in response to the Claimant’s subject access request. 11.2 Did the First and Third Respondents do the following things: 11.2.1 On 14 December 2021, the Third Respondent spoke to the Claimant in a sneering and demeaning manner throughout the disciplinary hearing. 11.3 Did the First Respondent also do the following things:11.2 below are brought against the First and Third Respondents. All allegations in paragraph11.3 below are brought against the First Respondent only. There is no harassment allegation against the Fourth Respondent. 11.1 Did the First and Second Respondents do the following things:11.3.1 Appointing an Investigation Officer (Theresa Dunsby) & Dismissal Officer (R3) who were of insufficient seniority11.3.2 Taking disciplinary action against the Claimant.11.3.3 Including within the disciplinary process the allegation that the Claimant had said (of R2) that: ‘I think he wants to push me to part-time or out as he had spoken to various IFA ladies regarding part-time work and me giving up clients to them and he keeps asking if I can cope with a 5-day week’.11.4 If so, was that unwanted conduct?11.5 Did it relate to age? 59 of 6511.6 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?11.7 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.11.8 Is the allegation at paragraph 11.1.5 above about a matter arising ‘in relation to employment’ so as to be actionable under section 40 of the Equality Act, given that a subject access request has no necessary connection to employment?[12]Victimisation (Equality Act 2010 section 27) All allegations are brought against the Third Respondent. The allegations at paragraphs 13.2.3 and 13.2.4 are also brought against the Third Respondent. There are no separate victimisation allegations against the Second or Fourth Respondents.12.1 Did the Claimant do a protected act as follows:12.1.1 On an unspecified date, saying to other employees of the First Respondent that he thought that the Second Respondent wanted to push him out of the business or to work part-time, because the Second Respondent had been speaking to ‘IFA ladies’ about coming to work part-time for the First Respondent and the Claimant giving up clients.12.1.2 In a letter provided to the Third Respondent on 14 December 2021, alleging that the Respondents had discriminated against him.12.2 Did the First (and, in respect of allegations 12.2.3 and 12.2.4, the Third) Respondent do the following things:12.2.1 Commenced an investigation against the Claimant on around 9 November 2021.12.2.2 Commenced disciplinary action against the Claimant on around 23 November 2021.12.2.3 Between around 23 November 2021 and 14 December 2021, the Third Respondent refused to permit the Claimant to have access to his work PC in order to prepare for the disciplinary meeting.12.2.4 On around 24 December 2021, the Third Respondent dismissed the Claimant. 60 of 6512.3 By doing so, did they subject the Claimant to detriment?12.4 If so, was it because the Claimant did a protected act?[13]Remedy for discrimination or victimisation13.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?13.2 What financial losses has the discrimination caused the claimant?13.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?13.4 If not, for what period of loss should the claimant be compensated?13.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?13.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?13.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?13.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?13.9 Did the respondent or the claimant unreasonably fail to comply with it?13.10 If so is it just and equitable to increase or decrease any award payable to the claimant?13.11 By what proportion, up to 25%?13.12 Should interest be awarded? How much?[14]Breach of Contract14.1 Did this claim arise or was it outstanding when the Claimant’s employment ended?14.2 Did the First Respondent do the following: 14.2.1 [The claimant alleges that progressing with the disciplinary hearing on 14 December 2021 when the claimant was signed off work by his doctor was in breach of the respondent’s duty of care and 61 of 65 health and safety obligations and in breach of the respondent’s contractual disciplinary procedure (page 69-70)]14.3 Was that a breach of contract?14.4 How much should the claimant be awarded as damages?[15]Right to be accompanied (Employment Relations Act 1999, section 10)15.1 Did the Claimant request to be accompanied at:15.1.1 The disciplinary hearing on 14 December 2021.15.1.2 The appeal hearing on 18 January 2022?15.2 Was that request reasonable?15.3 Is an appeal hearing a ‘disciplinary hearing’ as defined in section 13(4) of the Employee Relations Act 1999, such that the Claimant had the right to be accompanied at such a hearing under section 10 of the 1999 Act?15.4 Did the First Respondent refuse to permit the Claimant to be accompanied at the disciplinary (and, if applicable, appeal) hearing(s) by a person who(i) had been chosen by the Claimant and(ii) fell within section 10(3) of the Employee Relations Act 1999 (i.e. a trade union employee or official, or another of the First Respondent’s workers)?15.5 If there was such a refusal, what compensation should be awarded (having regard to the statutory cap of two weeks’ pay, set out in section 11(3) of the Employment Relations Act 1999)?[16]Additional remedy issue – employment particulars16.1 When these proceedings were begun, was the First Respondent in breach of its duty to give the Claimant a written statement of employment particulars or of a change to those particulars?16.2 If any claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under section 38 of the Employment Act 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay.16.3 Would it be just and equitable to award four weeks’ pay? The Issues in claim 2 1. Correct employer - claims 1 and 2 62 of 65 1.1 Was the claimant employed by Polestar Holdings Limited (R1 in claim 1) or Polestar Financial Planning Limited (R1 in claim 2)? 2. Time limits – claim 22.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 18 April 2023 (R1) and 16 May 2023 (R2) may not have been brought in time.2.2 Was the unauthorised deductions complaint made within the time limit in section 23 of the Employment Rights Act 1996? The Tribunal will decide:2.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of the wages from which the deduction was made?2.2.2 If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?2.2.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?2.2.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a further reasonable period?2.3 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:2.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?2.3.2 If not, was there conduct extending over a period?2.3.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?2.3.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:2.3.4.1 Why were the complaints not made to the Tribunal in time?2.3.4.2 In any event, is it just and equitable in all the circumstances to extend time? 3. Unauthorised deductions - fees3.1 Did the respondent make unauthorised deductions from the claimant’s wages? (The claimant says he is owed:3.1.1£145.70 in respect of fees earned in August 2021;3.1.2 fees earned in September and October 2021;3.1.3 compensation for fees he would have earned in November and December 2021, if not suspended.)3.2 If so, what fees were earned, or how should compensation for fees be calculated, and how much is the claimant owed? 63 of 65 4. Unauthorised deductions - holiday pay4.1 On termination of employment, the claimant was paid for 16.5 days annual leave he had accrued but not taken when his employment ended.4.2 Did the respondent make an unauthorised deduction from the claimant’s wages in relation to the calculation of the rate for a day’s holiday pay? (The claimant says that it was calculated by reference to basic pay only, and that the calculation should have included fees.)4.3 If so, what is the relevant daily rate of pay and how much is the claimant owed? 5. Direct age discrimination (Equality Act 2010 section 13) This claim is brought against both R1 and R2.5.1 The claimant’s age group is over 65 and he compares his treatment with people in the age group under 65.5.2 Did the respondent do the following things:5.2.1 fail to calculate, notify and make payment of fees due to the claimant in the period from August 2021 to December 2021;5.2.2 claim that the claimant was not entitled to contractual sick pay and that it is entitled to recover £2,030.77 by way of overpayment from the claimant;5.2.3 incorrectly calculate the rate of pay for untaken holiday.5.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says he was treated worse than Hywel Rees.5.4 If so, was it because of age?5.5 The respondents do not say that this treatment was a proportionate means of achieving a legitimate aim. 6. Victimisation (Equality Act 2010 section 27) This complaint is brought against both R1 and R2. 64 of 656.1 Did the claimant do a protected act as follows: 6.1.1 Presenting his complaint to the employment tribunal on 16 March 2022.6.2 Did the respondent do the following thing: 6.2.1 claim that the claimant was not entitled to contractual sick pay and that it is entitled to recover £2,030.77 by way of overpayment from the claimant.6.3 By doing so, did it subject the claimant to detriment?6.4 If so, was it because the claimant did a protected act? 7. Remedy for discrimination or victimisation7.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?7.2 What financial losses has the discrimination caused the claimant?7.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job? If not, for what period of loss should the claimant be compensated?7.4 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?7.5 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?7.6 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?7.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? Did the respondent or the claimant unreasonably fail to comply with it? If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?7.8 Should interest be awarded? How much? 65 of 65
Introduction
[17]In the main, the claimant’s grounds for reconsideration are that he does not agree with our findings of fact which we explained in our reasons. That is not a basis for reconsideration. Our findings were made on the balance of probabilities after we heard and weighed up the evidence and considered submissions by the parties. As we say in paragraph J17, we did not summarise all the evidence we heard and read during the hearing. Rather, we focused on and made findings on those aspects which were most helpful to us to decide the issues of dispute between the parties. It is not open to the claimant to challenge our findings of fact on the basis that he does not (R) Page 4 of 6 agree with our findings or because we have not referred in our reasons to all of the evidence we heard.[18]Paragraph A3: The claimant refers to Mr Russell ‘persistently’ making enquiries about retirement. We did not find that Mr Russell persistently asked the claimant about retirement. We found that he did so on two occasions and that the claimant was offended the second time (but not the first) (paragraphs J31, J32, J43 to J45). We concluded that the second question about retirement was not direct age discrimination because it did not amount to less favourable treatment or a detriment (paragraphs J221 to J224). We accepted the respondents’ evidence that they found it difficult to recruit financial advisers (paragraph J44).[19]Paragraphs A5 and A6: the claimant says the tribunal substituted its view of what it would find reasonable, rather than considering the effect on the claimant. In the claim of age-related harassment, the tribunal had to consider both the (subjective) effect of the conduct on the claimant and whether it was (objectively) reasonable for the conduct to have that effect. We concluded (at paragraphs J260 to J262, based on our findings at paragraphs J43 to J45) that, while the second question about retirement had the effect of creating an offensive environment for the claimant, it was not reasonable for it to do so, and so it did not amount to age-related harassment.[20]Paragraph A10: the claimant says that his dismissal was not justified. The tribunal has accepted this in the complaint of wrongful dismissal which succeeded because the tribunal concluded at paragraph J217 that the claimant’s conduct, viewed objectively, was not of a sufficiently serious nature to amount to a repudiatory breach justifying summary dismissal.[21]Paragraph A14: the claimant says the tribunal failed to address the ‘systematic and widely held knowledge that the claimant was going to be dismissed’ before the disciplinary hearing. The tribunal accepted, based on a concession by the respondent, that the decision to dismiss the claimant was made before the disciplinary hearing. We found that the decision maker was Mrs Borman (paragraphs J70 and J71).[22]Paragraph A18: the claimant says that the tribunal ignored the serious consequences of dismissal on the claimant. The judgment of the tribunal was that the claimant was unfairly and wrongfully dismissed. . Summary[23]Our findings of fact and our conclusions were explained in detail in our reasons which were sent with the reserved judgment. None of the claimant’s assertions about the evidence or about the tribunal’s findings of fact and conclusions provide a basis for reconsideration of the judgment. I have (R) Page 5 of 6 concluded that the claimant’s application does not disclose any ground which would make reconsideration necessary in the interests of justice. There is no reasonable prospect of variation or revocation of the original decision.[24]The claimant’s application for reconsideration is therefore refused under rule 70(2).[25]The remedy hearing will take place on 31 March 2025. Approved by:[1]The claimant was employed as a financial adviser from 5 March 2018. The claim arises from the summary dismissal of the claimant on 24 December 2021.[2]The claim form in this claim (case number 3303401/2022) was presented on 16 March 2022. Page 1 of 16[3]The liability hearing was heard in parts from 13 July 2023 to 29 October 2024. The hearing had to be paused several times, for reasons explained in our reserved liability judgment.[4]The unanimous decision of the tribunal on liability was that the claimant’s complaints of wrongful dismissal, unfair dismissal and for failure to provide written notice of change of employment particulars succeeded against the respondent Polestar Holdings Limited. The claims against other respondents and a second claim (case number 3310388/2023) failed and were dismissed.[5]There was a bundle of 352 pages prepared for the remedy hearing. It included the claimant’s original and updated schedules of loss and the respondent’s counter-schedule of loss. In these reasons we refer to pages in the remedy bundle by page number. The respondent sought to rely on some late added pages (pages 338 to 350). They were information from a trade union and a charity about the definition of harassment. These organisations were unrelated to this case. Because these documents were unlikely to assist us and had been added late, we refused permission for the respondent to rely on them.[6]We were also referred to some pages in the liability hearing bundle. We refer to pages in that bundle with the prefix L.[7]After time for reading and for dealing with preliminary matters, we heard witness evidence from the claimant and then, on behalf of the respondent, from Ian Russell, Sharon Wales and Natasha Beaumont. All the witnesses had prepared and served witness statements for the remedy hearing.[8]We had originally intended to conclude evidence and submissions on 31 March and for 1 April to be a deliberation day for the tribunal. When timetabling the hearing on 31 March, we agreed that the submissions part of the hearing would be conducted by video on 1 April, to allow more time for evidence. On 1 April we heard oral submissions from both parties. Ms Montaz also provided short written submissions.[9]After the evidence and submissions we reserved judgment. The Issues[10]The questions to be answered to determine remedy were set out in the case management orders for the remedy hearing sent to the parties on 3 February 2025 (pages 149 and 150). Findings of fact[11]We record here the relevant findings of fact from our liability decision, and additional findings of fact we have made based on the evidence we heard and read at the remedy hearing. The claimant’s dismissal Page 2 of 16[12]In our liability judgment we found, as conceded by the respondent, that the claimant’s dismissal was unfair because Mrs Borman had reached her decision to dismiss before the disciplinary hearing. In relation to the reason for the dismissal, we found that Mrs Borman was particularly concerned about the claimant’s criticism of Mr Russell and the impact of that on trust and confidence in the claimant. She considered whether the claimant should be given a final written warning but could not see how the claimant could continue to work within the organisation. She also took into account the claimant’s lack of explanation/lack of recall about the comments.[13]The respondent’s disciplinary procedure included a serious breach of trust or confidence as an example of gross misconduct (page 175).[14]We find that making the comments which were the subject of disciplinary proceedings against him was culpable conduct by the claimant, bearing in mind the nature of the comments about the respondent and the respondent’s managing director, the use of bad language, and the fact that the comments were made to a more junior colleague. The conduct contributed to the claimant’s dismissal. However, we find that there were mitigating circumstances, in particular the claimant’s lack of awareness about the effect of his conduct and the respondent’s failure to warn him about his behaviour. We find, based on the claimant’s written apology (page L197), that if he had been warned, he would have stopped. Another mitigating factor is that the comments were made internally only, and the respondent did not have any concern about detrimental impact on client relationships or risk to the business. The claimant’s terms and conditions with the respondent[15]The parties agreed that at the time of dismissal the claimant’s gross annual pay was £36,400. His net monthly pay was £2,369.99 and his net weekly pay £546.92 (page 330 and 333).[16]His employer pension contributions were 5% of gross pay (page 333).[17]The claimant invited us to find that his losses should be assessed by reference to higher pay to which his colleague became entitled in June 2022. We accept the evidence of the respondent that the claimant’s colleague’s pay only increased because he took on additional work after the claimant left. This is consistent with an email sent at the time (page 225). If the claimant had not been dismissed, his pay (and his colleague’s pay) would have remained the same as it was in December 2021.[18]The claimant was entitled to a notice period of 3 months on termination of employment (page 156). His contract contained a discretion for the employer to make a payment in lieu of notice. It said: “We may make a payment in lieu of notice at our absolute discretion. Where we offer such payment, subsequent discovery of any repudiatory breach of contract on your part will lead to revocation. Page 3 of 16 Where payment has already been made and we discover such conduct we have the right to seek recovery.” Complaints against the claimant after dismissal[19]In December 2022, about a year after the claimant left the respondent, a complaint of harassment was made against the claimant. We find that the alleged comments (page 212) were made by the claimant and that the claimant’s colleague found them embarrassing and humiliating. It was reasonable in respect of those comments that they had that effect. The claimant’s conduct was culpable in this respect.[20]We find that, again, there were mitigating circumstances. The claimant was unaware of the effect his comments had. We find that if the complaint had been raised with the claimant while he was working for the respondent, he would have stopped making these comments. We found in our liability judgment that the claimant was fairly oblivious to the impact of his moan and groan nature, and that when told about those concerns he responded by apologising unreservedly in writing (page L197). We find that the position here was similar and that the claimant would have taken the same approach in relation to this complaint. He would have apologised and his behaviuor would have stopped once he was made aware of its effects. For this reason, and because of the nature of the comments, we find that the claimant’s behaviour in this respect was not repudiatory conduct. We find that if this conduct had come to light before the claimant’s dismissal, the respondent would have warned the claimant and would not have dismissed him for this conduct. The claimant’s job-search and new role[21]The claimant incurred job-search expenses of £150.[22]The claimant took on a role as a self-employed financial advisor from March 2022. He did not earn any income in that role until August 2022. During the period from August 2022 to December 2022 the claimant earned £4,637.22 (pages 196 to 200).[23]We accept that the claimant incurred expenses as a self-employed advisor that he would not have incurred as an employed advisor and that these were £1,004.75 (mileage) and £170.83 (professional membership fees), that is £1,175.58 in total. The law Damages for wrongful dismissal[24]Where an employee is wrongfully dismissed without notice, they are entitled to damages representing the pay and benefits to which they would have been entitled under their contract during the notice period. Page 4 of 16[25]The contributory conduct provisions of the Employment Rights Act 1996 which relate to compensation for unfair dismissal do not apply to damages for wrongful dismissal.[26]Where the claimant succeeds in complaints of both wrongful dismissal and unfair dismissal, the tribunal must not award compensation for losses during the notice period for both complaints, as this would be compensating twice for the same losses. The tribunal has a discretion as to whether it awards damages for wrongful dismissal and then calculates the claimant’s losses in the unfair dismissal compensatory award from the end of the notice period, or whether it awards losses in the compensatory award in full, then deducts the sum awarded for wrongful dismissal (Shifferaw v Hudson Music Company Limited [2016] ICR D23 EAT). Unfair dismissal remedy[27]Under sections 112 and 113 of the Employment Rights Act 1996, reinstatement and reengagement are the primary remedy for a complaint of unfair dismissal: they must be considered before compensation.[28]Section 116 says:(1) “In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account— (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.(2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.(3) In so doing the tribunal shall take into account— (a) any wish expressed by the complainant as to the nature of the order to be made, (b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.” Page 5 of 16[29]If no order is made for reinstatement or re-engagement, the tribunal may make an award of compensation. Section 118 of the Employment Rights Act provides that compensation for unfair dismissal consists of:29.1 A basic award; and29.2 A compensatory award.[30]Section 122(2) says, in respect of the basic award: “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.”[31]This sub-section requires consideration of the conduct of the employee alone; the conduct of another employee or the respondent is not relevant. Any conduct by the employee before the dismissal may be relevant, whether or not it led to or contributed to the dismissal.[32]In respect of the compensatory award, section 123 says, so far as is relevant:(1) “Subject to the provisions of this section and sections 124, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.(2) The loss referred to in subsection (1) shall be taken to include— (a) any expenses reasonably incurred by the complainant in consequence of the dismissal, and (b) subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal. … (4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland. … (6) 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.” Page 6 of 16[33]Section 123(1) requires the tribunal to have regard to the loss sustained by the employee in so far as that loss is attributable to the employer’s action. In cases in which the dismissal has been found to be unfair on procedural grounds, the tribunal must consider whether compensation should be reduced to reflect the chance that the employee would have been dismissed in any event if a proper procedure been followed. This is part of a principle often referred to as ‘Polkey’, referring to the case of Polkey v AE Dayton Services Ltd 1988 ICR 142, HL.[34]In the context of a misconduct dismissal, the tribunal should assess the chance that the employee would have been dismissed in any event by considering:34.1 what decision the employer’s disciplinary decision-maker would have reached on the issue of whether the claimant was guilty of misconduct, if a fair procedure had been followed;34.2 if the decision-maker would have decided that the claimant was guilty of misconduct, what sanction they would have imposed; and34.3 if the sanction would have been dismissal, whether that dismissal could have been fair.[35]If it decides that the claimant would have been fairly dismissed in any event, the tribunal will also have to consider when dismissal would have occurred.[36]The test compensatory award can be reduced to reflect contributory conduct by the claimant section 123(6). The test is not the same as for the basic award. Only action by the claimant which has caused or contributed to the dismissal can be taken into account.[37]In misconduct cases in particular, there can be an overlap between the Polkey principle and the contributory conduct provision (Rao v Civil Aviation Authority 1994 ICR 495, CA). Where the claimant’s conduct has been taken into account in assessing the chances of a fair dismissal (under section 123(1) and the Polkey principle), a further reduction of the compensatory award for contributory conduct risks penalising the claimant twice for the same conduct. In such cases, it may be appropriate to moderate the reduction of the compensatory award for contributory fault, to avoid injustice.[38]The tribunal should stand back and consider the compensatory award as a whole to avoid double counting and to ensure that the award is just and equitable. Award for failure to give written notice of change of employment particulars[39]Section 4(1) of the Employment Rights Act 1998 says: (1) “If, after the material date, there is a change in any of the matters particulars of which are required by sections 1 to 3 to be included or referred to in a statement under section 1, the employer shall give to the worker a written statement containing particulars of the change.” Page 7 of 16[40]Section 38 of the Employment Act 2002 applies to complaints of wrongful and unfair dismissal. It says, as far as is relevant: (1) “This section applies to proceedings before an employment tribunal relating to a claim by a worker under any of the jurisdictions listed in Schedule 5. … (3) If in the case of proceedings to which this section applies— (a) the employment tribunal makes an award to the worker in respect of the claim to which the proceedings relate, and (b) when the proceedings were begun the employer was in breach of his duty to the worker under section 1(1) or 4(1) of the Employment Rights Act 1996 … the tribunal must, subject to subsection (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead. (4) In subsections (2) and (3)— (a) references to the minimum amount are to an amount equal to two weeks’ pay, and (b) references to the higher amount are to an amount equal to four weeks’ pay. (5) The duty under subsection (2) or (3) does not apply if there are exceptional circumstances which would make an award or increase under that subsection unjust or inequitable. (6) The amount of a week’s pay of a worker shall— (a) be calculated for the purposes of this section in accordance with Chapter 2 of Part 14 of the Employment Rights Act 1996 (c. 18), and (b) not exceed the amount for the time being specified in section 227 of that Act (maximum amount of week’s pay).” Failure to comply with Acas Code of Practice[41]Under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 and schedule A2, damages for wrongful dismissal and unfair dismissal may be increased or decreased in respect of an unreasonable failure to comply with an Acas Code of Practice.[42]Section 207A says, as far as is relevant: Page 8 of 16(1) “This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2.(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— (a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies, (b) the employer has failed to comply with that Code in relation to that matter, and (c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%. … (4) In subsections (2) and (3), “relevant Code of Practice” means a Code of Practice issued under this Chapter which relates exclusively or primarily to procedure for the resolution of disputes. (5) Where an award falls to be adjusted under this section and under section 38 of the Employment Act 2002, the adjustment under this section shall be made before the adjustment under that section.”
Conclusions
[43]We apply these legal principles to the facts as we found them, to decide remedy. We start by considering reinstatement and re-engagement. Reinstatement/re-engagement[44]The claimant has expressed his desire to be reinstated or re-engaged. The main focus for him is reinstatement to the role of financial advisor. The respondent is currently looking for another financial advisor to expand its team.[45]We have decided that, despite there being a vacancy, it is not practicable for the respondent to comply with an order for reinstatement, for the following reasons:45.1 the respondent is a very small employer. If he were reinstated, the claimant would inevitably be working very closely with the same people;45.2 the nature of the comments made by the claimant (page L162) are such that it would not be practicable to expect the respondent’s directors and employees to work together with the claimant; and Page 9 of 1645.3 we have found that the claimant’s conduct in making the comments on page L162 was culpable conduct which contributed to his dismissal, and it would not be just to order his reinstatement.[46]No comparable or other suitable employment to which the claimant wishes to be re-engaged by the respondent has been suggested. We have decided that an order for re-engagement is not practicable as there does not appear to be a suitable role, and even if there was, the same reasons would apply as for reinstatement.[47]We decided to make an award of compensation for unfair dismissal. We come back to this after considering the award of damages in respect of the wrongful dismissal complaint. Wrongful dismissal[48]We found that the claimant was wrongfully dismissed in breach of contract as the conduct for which he was dismissed did not justify summary dismissal. We have decided to award damages for wrongful dismissal before considering the compensation for unfair dismissal.[49]The claimant was entitled to 3 months’ notice of dismissal. His terms and conditions did not restrict payment in lieu of notice, for example to payment of salary only. We award damages for the failure to give notice, calculated as:49.1 3 months’ loss of salary, calculated as a net figure: 3 x £2,369.99 = £7,109.97; and49.2 3 months’ loss of employer pension contributions, calculated as 5% of gross pay: £36,400 divided by 4 x 0.05 = £455. Therefore the award for damages is £7,564.97.[51]We have found that the conduct complained of in December 2022 did not amount to repudiatory conduct by the claimant, and so this does not provide a defence to the wrongful dismissal complaint or give the respondent the right to recover notice pay under the contract. Wrongful dismissal - Acas Code of Practice[52]We decided whether there should be any increase to the wrongful dismissal damages because of any failure by the respondent to comply with the Acas Code of Practice.[53]The respondent failed to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures because the respondent decided to dismiss the claimant before holding a disciplinary meeting with him. The steps set out in the Code of Practice were not taken in the right order. The decision on appropriate action (paragraph 18 of the Code) was taken before the meeting with the employee to discuss the problem (required by paragraph 11 of the Code). Page 10 of 16[54]This was an unreasonable failure to comply with the Code. It meant that the claimant was deprived of the right to respond to the allegations against him before the decision to dismiss was made. We have decided that it is just and equitable to increase the award.[55]As to the level of the increase, we have taken into account that the respondent did carry out some of the steps required by the Code. There was an investigation to establish the facts of the case (paragraph 5 of the Code), and the claimant was informed of the problem (paragraph 9 of the Code). We have decided that the increase should not be the maximum 25%. However, because of the nature of the failure to comply, which deprived the claimant of a fundamental protection of the code, we have decided that the award should be increased by 15%.[56]Therefore the award for damages for wrongful dismissal after the Acas uplift is £8,699.71.[57]The claimant claims interest. The tribunal does not have the power to make an award of interest on damages for wrongful dismissal. Unfair dismissal compensation – compensatory award – section 123(1)[58]The claimant claims losses for the period from dismissal to 22 December 2022.[59]We have awarded damages for wrongful dismissal in respect of the pay and pension which the claimant would have received in the period from 22 December to 22 March 2022 (the notice period). To avoid double recovery we have taken into account in the unfair dismissal compensatory award only losses arising in the period after 22 March 2022.[60]The claimant’s net loss of pay for 39 weeks from 22 March 2022 to 22 December 2022 was £546.92 x 39 = £21,329.88. The claimant also had loss of employer pension contributions in this period in the sum of £36,400 x 0.05 x 39/52 = £1,365. Total loss of pay and pension is therefore £22,694.91.[61]The claimant’s earnings from his self-employed advisor role for this period, after deduction of expenses in that role were £4,637.22 - £1,175.58 = £3,461.64. The net earnings from the alternative role must be deducted from the losses.[62]The claimant’s losses during this period were therefore £22,694.91- £3,461.64 = £19,233.27.[63]We also award compensation for the job-search expenses in the sum of £150 and make an award for loss of statutory rights in the sum of £300 as sought by the claimant.[64]In total, the compensatory award before adjustments is £19,683.27. Unfair dismissal compensation – compensatory award – Polkey Page 11 of 16[65]The respondent said that, if a fair procedure had been followed, there was a chance that the claimant would have been fairly dismissed at the same time in any event (the Polkey argument).[66]We have decided that if a fair procedure had been followed, there was a high chance that Mrs Borman would still have decided that the claimant had committed misconduct and that he should be dismissed. She was particularly concerned about the relationship between Mr Russell and the claimant. She did not see how the claimant could continue to work within the organisation. The claimant’s lack of recall about the comments played a part in her decisionmaking and there is a high chance this would have been the same if a fair procedure had been followed.[67]There is some prospect that if Mrs Borman had taken a different approach at the disciplinary hearing, she might have been persuaded to give the claimant a warning rather than dismissing him. There is also a small chance that, because Mrs Borman was not approaching the disciplinary hearing with an open mind, the respondent might have decided to appoint someone else instead of Mrs Borman to decide the hearing, and that person might have reached a different decision. We have decided that the chance of dismissal being the outcome after a fair procedure was 80%.[68]We have also decided that dismissal in those circumstances could have been a fair dismissal. We are considering here the range of reasonable responses test, not (as we did in the complaint of wrongful dismissal) whether the claimant’s conduct, viewed objectively, amounted to a repudiatory breach of contract.[69]If a fair procedure had been adopted, the respondent would have shown that Mrs Borman had a genuine belief that the claimant was guilty of misconduct. Mrs Borman’s view that the comments made by the claimant amounted to misconduct was the reason for the dismissal.[70]In relation to the other elements of the unfair dismissal test, considered on a neutral basis, there were reasonable grounds for the respondent to believe that the claimant was guilty of misconduct, and it had carried out a reasonable investigation at the time it formed that belief. A reasonable investigation had been undertaken by the time of the decision to dismiss and this gave grounds for the belief that the misconduct had occurred as alleged.[71]The question of whether dismissal would have been within the range of reasonable responses (again considered on a neutral basis) is finely balanced and we have considered it carefully. We have taken into account the nature of the comments the claimant made about the respondent and the respondent’s managing director and the fact that they were made to a more junior colleague. The claimant should have appreciated that the respondent would regard making comments like this as serious misconduct which would merit dismissal.[72]We have in mind the mitigating circumstances, and in particular that the claimant had never been warned about his conduct and was not aware of its Page 12 of 16 effect. Further, the respondent was not worried about client relationships. In these circumstances, some employers might have given the claimant another chance and issued a warning. However, we cannot say that no reasonable employer could have dismissed the claimant for making these comments.[73]We concluded in relation to wrongful dismissal in our liability judgment that, viewed objectively, the claimant’s conduct did not justify summary dismissal. By reference to the different test which applies in unfair dismissal, we have concluded that dismissal for this conduct in these circumstances following a fair procedure would not have been outside the range of reasonable responses of a reasonable employer. It would have been within the range of reasonable responses for a reasonable employer following a fair procedure to have dismissed the claimant in these circumstances.[74]Our conclusion means that the respondent could have fairly dismissed the claimant, if it had not acted unfairly by pre-judging the matter before the disciplinary hearing took place. As the employer still went through all the steps required for a fair process, a fair procedure would not have taken any longer. The respondent could have fairly dismissed the claimant in the same timeframe.[75]For these reasons, we have concluded that there is an 80% chance that the claimant would have been dismissed on the same date if the respondent had adopted an fair procedure and that in those circumstances the dismissal would have been fair. Therefore, applying the Polkey principle and section 123(1), we reduce the award by 80% to reflect that chance.[76]The compensatory award after adjustment in relation to the Polkey principle is £3,936.65. Unfair dismissal compensation – compensatory award – Acas uplift[77]We apply a 15% Acas uplift to this award, for the reasons explained above in relation to wrongful dismissal damages. The compensatory award after the Acas uplift is £4,527.15. Failure to provide written notice of change of employment particulars[78]As part of his award, the claimant is entitled to an increase under section 38 of the Employment Act 2002 in respect of the respondent’s failure to provide written notice of change of employment particulars. The minimum award is of 2 weeks’ pay, subject to the statutory cap on a weeks’ pay which was £544 at the relevant time.[79]We have decided that it is not just and equitable to award the higher amount of 4 weeks’ pay because the respondent provided initial written particulars, and the unnotified change was in respect of one matter only. Therefore the award in respect of this aspect of the claimant’s claim is 2 x £544 = £1,088.[80]Section 207A(5) of the Trade Union and Labour Relations (Consolidation) Act 1992 says that the Acas uplift is made before the increase for failure to provide Page 13 of 16 written notice of change. Therefore no Acas uplift applies to this element of the award.[81]The compensatory award after the Acas uplift and increase for failure to provide written notice of change is £5,615.15.[82]Section 124A of the Employment Rights Act 1996 says that any Acas uplift and increase under section 38 are made before any reduction for contributory conduct under section 123(6). We come onto this next. Unfair dismissal compensation – compensatory award - contribution to dismissal - section 123(6)[83]Section 123(6) of the Employment Rights Act applies where the dismissal is caused or contributed to by any action of the claimant.[84]We have found that the claimant made comments to a more junior colleague which led to his dismissal and which were culpable and blameworthy conduct in respect of which it is just and equitable to reduce the claimant’s award.[85]As we have already adjusted the award to reflect the chance that the claimant would have been dismissed for his conduct in any event, we moderate the reduction of the compensatory award for contributory fault to 10%, to avoid injustice which would arise from penalising the claimant twice for the same conduct.[86]Therefore the compensatory award after all adjustments is £5,053.64. Stepping back, we have reviewed the compensatory award and have concluded that there is no double counting and the award as a whole is just and equitable. Unfair dismissal compensation – basic award[87]The claimant’s basic award is 4.5 weeks’ pay. The claimant’s gross weekly pay was above the statutory cap on a week’s pay which was £544 at the relevant time. The claimant’s basic award is 4.5 x £544 = £2,448.[88]The increase to an award because of a failure to comply with the Acas Code of Practice does not apply to the basic award.[89]We have decided that there should be a reduction of the basic award under section 122(2). Section 122(2) requires a focus on the employee’s conduct before the dismissal and the extent to which that conduct makes it just and equitable to reduce the basic award. The respondent relied on the claimant’s conduct in relation to:89.1 The comments for which he was dismissed; and89.2 The complaint raised in December 2022 about the claimant’s conduct while employed. Page 14 of 16[90]We have found that both these aspects of the claimant’s conduct were conduct for which the claimant was culpable. We have taken into account that there were mitigating circumstances here, in particular we have found that in relation to both aspects of his conduct, the claimant was unaware of the effects of his conduct and that, had he been made aware, he would have stopped. In the circumstances, we have decided that it is just and equitable to reduce the amount of the basic award by 50% to reflect this conduct. This is higher than the reduction for contributory conduct in the compensatory award, because that was moderated to take account of the Polkey adjustment, which does not apply to the basic award. The basic award is therefore £1,224.[92]The claimant seeks interest. The tribunal does not have the power to award interest on either element of an unfair dismissal award. Taxation and summary[93]As the award relates to termination of employment, it is taxable pursuant to section 401 and section 403 of the Income Tax (Earnings and Pensions) Act 2003. The total award is less than £30,000 and it can therefore be paid without deductions. No grossing up for taxation is required.[94]A summary of the award is below. Wrongful dismissal Loss of pay and pension in notice £7,564.97 period Acas uplift15% £8,699.71 Unfair dismissal Compensatory award: £19,683.27 After: Polkey reduction 80% £3,936.65 Acas uplift 15% £4,527.15 Failure to provide written notice of £5,615.15 change (s38) – increase of £1,088 Contributory conduct reduction 10% £5,053.64 Basic award: £2,448.00 After: Conduct reduction 50% £1,224.00 Total award £14,977.35 Approved by: