Mr A Tayel v Secretary of State for Justice: 3304573/2024
JUDGMENT
[1]The application for interim relief brought under s.128 of the Employment Rights Act 1996 is dismissed.REASONS
[1]Reasons for the Tribunal’s decision were given orally at the hearing of this application. Written reasons were requested at the conclusion of that hearing. The Tribunal has therefore prepared this single document including both its written record of the decision and its reasons.[2]At the outset of the hearing, I explained to the parties that I have worked for the Government Legal Department for around 10 years but have been on career break for over a year. To the best of my recollection, I have never provided advice to the Respondent department. I primarily advised other departments and agencies on planning and environmental litigation. I did not believe that any conflict of interest arose. I sought observations from the parties before making a final decision. Neither party made any nor raised any objection, so I proceeded to hear the application.[3]The Respondent stated that it was not willing to either reinstate or re-engage the Claimant.[4]I read a witness statement provided by the Claimant in support of his application, a skeleton argument provided by the Respondent and was provided with a bundle extending to 585 pages. I heard submissions from both parties but no oral evidence.The Facts
[5]Due to the nature of this application and hearing, it is not appropriate to make any firm findings of fact and I have not done so. Nevertheless, it will provide helpful context to my decision to provide a broad overview of the background to the claim. I have based this on a summary review of the documents, principally those to which I was directly referred at the hearing.[6]The Claimant transferred to HMP Warren Hill prison in or around May 2023. As I understood it, he worked mostly night shifts. From around August/September 2023, he started raising some workplace issues with management. Some related to personal issues concerning annual leave entitlement, others were directed at operational issues – for instance working practices of colleagues and whether the Respondent’s policies were being correctly implemented. A common thread to the issues raised was that certain colleagues would conclude their shifts early and leave the premises. Another thread was indicating when prison procedures were not being followed correctly – e.g. welfare checks not being conducted as required and planned, notebooks being inaccurately filled in.[7]Over a similar period, complaints were raised by colleagues about the Claimant’s conduct. I need not dwell on precise timings and events. They were run through at length by the parties at the hearing and I have taken them into account, including the Claimant’s submissions about the peculiarly coincidental times at which certain actions were taken.[8]One particularly noteworthy exchange was between the Claimant and deputy governor Askins (“DG Askins”) concerning annual leave. Without delving into the details, the Claimant was concerned at having been incorrectly recorded as on annual leave for a period in or around April/May 2023. After several exchanges, the issue was resolved by the Claimant’s line manager. However, further to the confrontational manner perceived in the exchange, DG Askins notified his line manager – the Governor – and instructed the Claimant to attend a meeting with him. The instruction was repeated several times, but the Claimant did not attend any of the meetings with DG Askins.[9]In early January 2024, the Claimant was suspended pending a disciplinary investigation. A disciplinary meeting was held, resulting in the Claimant’s dismissal on grounds of gross misconduct.[10]The parties had differing views about this process. The Claimant says it was a sham investigation and the real reason for his dismissal was the making of protected disclosures. The Respondent says it was a genuine investigation and disciplinary process, which had been pursued due to numerous complaints having been made about the Claimant’s conduct. They were notably: a complaint raised by DG Askins relating to the Claimant’s failure to follow his instruction to attend meetings; his complaint about the content and tone of the Claimant’s emails to him; complaints from other colleagues, including from the Claimant’s line manager and a colleague who was regularly referred to in the evidence and who I will refer to as “Ms M”, who had made a detailed written complaint about the Claimant’s conduct; and a complaint from a nurse about a particular incident involving the Claimant one morning in December 2023. The Issues and Law[11]The issue for me to determine was whether it is likely that a Tribunal will find that the reason for the Claimant’s dismissal was making a protected disclosure (Employment Rights Act 1996, s.129(1) and s.103A).[12]The protected disclosure(s) alleged to have been made was raising concerns about how the prison’s policies and applicable regulations were being implemented and the falsification of documents. In accordance with s.43B of the Employment Rights Act 1996, a qualifying disclosure is defined as meaning 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 matters set out in that section. The exact “matter” to which the disclosure relates was unclear (and unimportant at this stage) but appeared to be either a failure to comply with a legal obligation or that an individual’s health or safety was likely to be endangered.Conclusions
[13]There were principally two issues for me to consider:13.1 whether any protected disclosures were made; and13.2 whether it was their making that was the principal reason for the Claimant’s dismissal. I reached my decision on the basis of the second issue. For present purposes I accept that it is arguable that certain issues raised by the Claimant might be described as protected disclosures. I need not analyse it any further and did not.[14]Whether or not any protected disclosures were made, I don’t find it likely that a Tribunal would find that was the principal reason for the Claimant’s dismissal.[15]The first reason is that there was no indication in the evidence that the Claimant was viewed negatively due to having made the disclosures. On his own submission, the Claimant states that the Respondent took no action in respect of the concerns he raised and he was sent no replies to his messages. The Respondent didn’t suggest the Claimant should not raise the issues and seemed to have a system in place to allow such issues to be reported. What limited evidence I have seen suggests that the issues were not entirely ignored. But if they were, it doesn’t assist the Claimant’s case.[16]On receipt of the complaints, DG Askins delegated the response to line managers. Emphasis was made at the hearing about the tenor of DG Askins’ emails, noting that he only asks for the matters to be discussed “with the Claimant”, suggesting that no other action should be taken other than that (for instance, investigating the matters further). That is one interpretation of the one-line emails. Another is that DG Askins simply didn’t consider they were complaints that needed his input and he delegated them entirely. This would be understandable as the matters typically began by raising issues as to colleagues leaving early before mentioning the operational concerns, none of which had actually resulted in any incident.[17]What matters most is that the managers did in fact follow-up on the issues raised, and not simply directly with the Claimant. They clearly did not interpret the message in the way the Claimant has suggested. A transcript of an interview with Ms M appearing at page 254 of the bundle reads as follows: “I was spoken to by my Line Manager because, basically, the Line Manager had said that [the Claimant] had been making a lot of email complaints, or, or whatever, basically, so he was trying to say that I was doing fraudulent behaviour because I was leaving early, or whatever”. It is not clear what the reference to “fraudulent behaviour” relates to, but the suggestion is that it is more than simply to Ms M leaving early. A reference to fraud would more readily be described as relating to falsifying records (the thrust of some of the Claimant’s operational concerns) rather than to leaving work early. Either way, the statement demonstrates that the Respondent did take action on the Claimant’s concerns and did not ignore them, as it might have been inclined to do had it wanted to dismiss the Claimant or treat him unfavourably because he had raised concerns in the first place. Perhaps the line managers focused exclusively on the timekeeping issue rather than any other operational issues, but some action was taken.[18]If the issues described as protected disclosures were entirely ignored as the Claimant submits, it tends to indicate that the Respondent did not consider them serious enough to warrant action, and accordingly to dismiss the Claimant. DG Askins certainly did not appear to seek to cover the issues up or to instruct junior managers not to act on them.[19]Similarly, other evidence tends to demonstrate that the Respondent did not generally treat the Claimant unfavourably. The issue he raised concerning annual leave was resolved in his favour. Upon receipt of a very offensive Christmas card, the Respondent appears to have thoroughly investigated the issue by taking statements from several colleagues the Claimant suggested may have been the perpetrators and even approaching Royal Mail to establish if they could trace where the card had been sent from. The email chain with Royal Mail suggests that the Respondent was genuinely and sincerely seeking to establish the facts, albeit it ultimately failed to do so.[20]The second reason is that all of the documentary evidence suggested that conduct was the reason for the Claimant’s dismissal. A thorough investigation appears to have been made in the context of his disciplinary process. Numerous witnesses were both interviewed prior to, and cross-examined at, a 5-hour disciplinary hearing. If the Claimant’s case is correct, it would mean that the Respondent must have orchestrated an organised campaign, involving many employees, including at a senior level, and that all of the witnesses must have behaved very deviously, and consistently so, over a significant period of time. To suggest they would have done as much is hard to believe, particularly so without evidence. It appears rather fanciful to suggest that they did so purely in response to complaints the Claimant made about operational issues largely concerning record-keeping and conducting rounds. I do not intend to suggest that neither might be important matters, rather that they don’t appear so significant as to come close to explaining why the Respondent would have embarked on such a well-coordinated and risky cover-up in response.[21]The Claimant may have grievances about the disciplinary process that was followed, but nothing I have seen suggests there is any real prospect that the Claimant could satisfy a Tribunal that his dismissal was due to having made a protected disclosure. Whether or not the reason was in fact conduct, and whether or not the actions taken by the Respondent were reasonable in deciding to dismiss the Claimant, will be determined in the substantive claim.