Employment Judge J JonesIn person for claimantDate 23 August 2024
JUDGMENT
[1]The claim of automatic unfair dismissal because of a protected interest disclosure succeeds against 4th respondent.[2]The claim of public interest disclosure detriment (excluding dismissal) succeeds against the 1st, 2nd and 4th respondents.[3]The claim of public interest detriment by way of dismissal succeeds against the 1st and 2nd respondents.[4]The claims of direct race discrimination and victimisation succeed against 1st, 2nd and 4th respondents.[5]The claim of harassment because of race succeeds against 2nd and 4th respondents.[6]The claim of direct race discrimination and harassment because of race against 3rd respondent is dismissed.[7]The 1st, 2nd and 4th respondent are jointly and severally liable to pay to the claimant the total sum of £157,142.18 as compensation for race discrimination, harassment related to race and victimisation. Case No: 3305451/2020 Injury to feelings £30,000 Interest on injury to feelings @ 8% £3,981.42 Compensation for past loss of earnings £74,763.39 Interest on compensation for past loss of earnings @ 8% £10,108 Sub-total £118,852.81 Grossing up to allow for the payment of tax on the award £38,289.37 Grand Total £157,142.18[8]The 1st and 2nd respondent are also jointly and severally liable to pay to the claimant the total sum of £133,659.82 as compensation for public interest disclosure detriment (including dismissal). This is in the alternative, not in addition, to the sum payable under paragraph 7 above.[9]The 4th respondent is liable to pay to the claimant:9.1£74,763.90, grossed up to £85,954.87, as compensation for automatically unfair dismissal;9.2£33,981.42, grossed up to £34,976.77, as compensation for public interest disclosure detriment (excluding dismissal). The sums in this paragraph 9 are payable in the alternative, not in addition, to the sums payable under paragraphs 7 or 8 above.[1]The Claimant’s complaints were of race discrimination and harassment, victimisation, protected disclosure detriment and unfair dismissal. The case was heard, in the absence of the Respondents, in 2023, in circumstances described in the separate Reasons for our Remedy Judgment. That Tribunal’s judgment was subsequently revoked on reconsideration, so that the case came before us in August 2024. Oral judgment, with reasons, was given at the conclusion of that Hearing. The question of remedy was dealt with at a separate Hearing in October 2024, along with applications for costs.[2]The delay in providing these Reasons was explained to the parties in correspondence, namely my absence on a long period of leave almost immediately after the Liability Hearing, followed by a series of other judicial commitments. The parties were asked to review their requests for Reasons at the Remedy Hearing. As noted above, the request of the First to Third Respondents was subsequently confirmed. Issues[3]The issues were largely set out by Employment Judge Harding following a Case Management Hearing before her on 30 August 2022. A copy of the list of issues she produced is set out as an Annex to this Judgment. We discussed the list on day 1 and those discussions are also reflected in the Annex. No amendment issue was taken by Mr Calvert in relation to the refinements of the list identified by the Claimant that will be apparent from these Reasons, including in relation to the addition of detriment 12. Hearing[4]Before hearing oral evidence, we read the parties’ witness statements, the dismissal letter, WhatsApp exchanges, and all documents referred to in the Respondents’ statements except policy and technical documents. Mr Ennis said we did not need to read the Claimant’s Particulars of Claim submitted on 30 June 2020. We made clear it was for the parties to take us to documents other than those we read as above, if they wanted us to consider them in reaching our decision. We were taken to numerous documents during the course of the oral evidence. Page 126A was a document produced by the 2023 Tribunal panel, confirming which Respondents and which types of complaint were pursued in relation to each alleged detriment, and in relation to the dismissal.[5]Page references below are references to the bundle of documents agreed by the parties, those prefixed with S being references to a supplementary bundle. Alphanumeric references are to statements, for example RS5 is paragraph 5 of the Claimant’s statement, and WB12 is paragraph 12 of the First Respondent’s. Document 463(a)[6]The Respondents sought to add to the bundle near the start of the Hearing a new document related to a draft of the Claimant’s dismissal letter, dated in February 2020, which they said would confirm when it was created. The Claimant confirmed on day 2 that he opposed this application.[7]Tribunals have a wide discretion in deciding such matters, the question of competing prejudice being key. There was no discernible prejudice to either party in relation to their conduct of the case. Mr Ennis submitted that the previous Tribunal had said when revoking its initial judgment that the re-hearing of the case would be on the same evidence as had been before that Tribunal in 2023. This was not stated in that earlier Tribunal’s reconsideration judgment, and even if this comment was made, we had not seen or been told that an Order was made to this effect, so that we were not prevented from taking a different course of action. In any event, we thought that the discovery of a document after the last hearing was sufficient to constitute a material change of circumstances such that admitting it would still be permissible. The question was therefore whether it should be admitted, not whether it could be admitted.[8]The Respondents did not provide a good explanation for the late disclosure of the document, as Mr Calvert accepted, but whilst that was something to weigh in the balance it was not determinative. The key issue was whether it was necessary in our view for document to be adduced in order to do justice in the case – in other words, was adding the document to the bundle in the interests of justice, in accordance with the overriding objective? We concluded that it was for the following reasons: 8.1. Credibility was, as both parties clearly recognised, an important issue in relation many if not all of the complaints, where parties were giving radically different accounts of events. The document would not determine those evidential disputes of itself of course, but it could have been an important piece of the credibility jigsaw. 8.2. Given the situation of the Fourth Respondent, we had to recognise the potentially significant effects on the First Respondent (and, as it appeared at the start of the Hearing, the Second) of potential liability related to the Claimant’s dismissal. Again, this was not determinative, but on the face of it the complaints related to dismissal were those most likely to generate substantial compensation if successful which was an important factor in doing justice between parties and tended very much to suggest that the Respondents’ application should be allowed. 8.3. Further and importantly, we did not think that the introduction of the document was on the face of it likely to substantially affect how the Claimant would want to put his case related to dismissal. The burden of his statement on that issue was very clearly that the Respondents could not have dismissed him for document irregularity because they positively encouraged such irregularities themselves. That case remained very much available to him to argue regardless of whether the new document was included or not. He could also still argue that the dismissal letter was prepared in February, not least because in fact, the veracity of the new document itself was – and could properly be – in issue. 8.4. Taking into account all of the above, the interests of justice outweighed the Respondents’ failure to provide an adequate explanation for the delay in disclosing it. It was thus added to the bundle as page 463(a). We made clear that our allowing the application was not an acceptance that it proved what the Respondents said it proved. The Claimant also handed up additional documents by consent. Facts[9]We made the findings of fact below, on the balance of probabilities where there were disputes between the parties and based on the evidence we considered as set out above. We do not recite all of the matters the parties rehearsed with us, focusing on those matters that seemed to us of most importance to the issues before us. Our not referring to a specific factual matter does not however mean that it was not taken into account in reaching our[10]We were invited by both parties to reach a general view about the credibility of the respective witnesses. Indeed, the Respondents wanted us to note a previous judgment against the Claimant in an employment tribunal case he brought against Care Analytical Limited in a different region in 2012 – see pages S.68ff. We were asked to note for example that the judge recorded the Claimant changing his evidence (page S.73), and that the Claimant’s explanation of why he changed his mind as to whether he in fact completed an appraisal document was “incredible” (page S.77). Our approach however was to judge all witnesses, including the Claimant, based on their evidence to us, and therefore, as the Claimant said we should, we disregarded the earlier judgment. It was 12 years ago and we do not know the details of the evidence presented. As to the evidence before us, we preferred to deal with each conflict of evidence on its own merits, rather than making overall assessments of credibility. This was particularly because, as will become apparent below, there were plainly issues with all of the witnesses’ evidence, particularly that of the First Respondent and the Claimant. As ever, whether the witnesses gave us what they believe to be a truthful account was in every respect a matter for their consciences. Background[11]The Fourth Respondent was a consultancy company, established in 2017, specialising in asbestos surveying and asbestos air fibre monitoring. The First Respondent was its Managing Director, the Second its Operations Manager and the Third its Quality Manager. The company went into creditors voluntary liquidation from June 2023.[12]The Fourth Respondent employed the Claimant from 27 November 2019 to 8 April 2020 as an Asbestos Analyst/Surveyor, on a 6-month probation period. His role was to conduct onsite air monitoring and four-stage clearance work and produce certificates either of analysis or for reoccupation accordingly. He was the Fourth Respondent’s only Black employee during his employment. Of no more than eight employees employed by the company and its successor since 2017, including the named respondents, the Claimant and one other employee are Black; the latter remains employed by the new company set up by the named respondents following the liquidation.[13]The First Respondent interviewed the Claimant and offered him the role, having interviewed him several months before. He says that on that earlier occasion he was put off employing the Claimant by agency fees, an explanation which the Claimant says he found suspect because the First Respondent would have known of the agency costs beforehand, so that he thought his colour may have been an issue. This was not mentioned in his statement. The First Respondent told us he was astounded by this evidence, saying that on the earlier occasion he was impressed with the Claimant’s manner, friendliness and experience, but he could not negotiate the agency below 25% of the salary the Claimant was to be paid, whilst later in the year, he negotiated them down to less than 10%. The Respondents say the Claimant was given the highest salary of any of the Fourth Respondent’s analysts and surveyors, though the First Respondent also said he did not know what salary the Claimant would be paid. On these factual disputes, we concluded: 13.1. It was somewhat strange that the First Respondent did not know what salary the Claimant might be paid in early 2019 and thus what the company might be expected to pay by way of a percentage to the agency, but we were satisfied that he did view the Claimant in a wholly positive way when they met in early 2019 (in fact, the most convincing parts of the First Respondent’s oral evidence were the unguarded positive comments he made about the Claimant), and we were also are satisfied that there is no evidence that the decision not to employ him on that occasion was because of his race. Mr Ennis speculated that the Respondents were desperate to employ someone later in the year, so that it was a case of “needs must” and the Claimant was their only option, but that was indeed speculation and the fact is that the First Respondent got the Claimant’s CV for the second time (which we can accept gave him a better negotiating hand with the agency) and pursued employing him, knowing he is Black. 13.2. The Respondents’ evidence that the Claimant was the highest paid analyst was unchallenged and so was accepted. 13.3. Whatever the Claimant says he thought with hindsight, it seemed to us inherently implausible that at this point he left his then current job, as someone with ample experience and a proven ability to get new roles (see his CV at page 155), to go and work for someone who he suspected had already discriminated against him. We also noted this was not mentioned in his statement.[14]Businesses like the Fourth Respondent are regulated by the United Kingdom Accreditation Service (UKAS). They are required by UKAS to participate in something called RICE (Regular Interlaboratory Counting Exchange) whereby batches of reference slides containing fibres are sent to them by the Health and Safety Executive (“HSE”), to be read under microscopes by analysts in the business. Once counts have been submitted, they are compared against the reference values for each batch. After all batches have been completed, the business is given a grading for accuracy.[15]In addition to RICE counts, every month, every analyst working for a UKAS accredited laboratory and conducting four-stage clearances has to undergo training and read “QC slides” (again, slides with fibres on them, viewed under a microscope), to confirm their ongoing competency. The Claimant told us that these slides too are provided by the HSE and the results submitted to the HSE for processing. By contrast the Respondents said that they were assigned to analysts by the business itself from its library of 49 slides, with the Third Respondent inputting the results at month end on to the Fourth Respondent’s database, which then produced a graph showing the accuracy of the readings, which in turn UKAS would inspect on audit. It was not for us to independently check which party was correct on the question of how QC slide readings were arranged; rather, our task was to assess their respective cases. We thought the Respondents’ evidence was far more likely accurate, given that it seems inherently unlikely the HSE would issue two different sets of slides, with different regularity, for essentially the same purpose. What the parties did agree was that any analyst who had not read their QCs was unable to properly clear jobs they had worked on.[16]The First Respondent says at WB5 that on 27 November 2019, the Claimant’s induction day, he and the Claimant discussed the details of the Claimant’s contract and that as part of the Claimant’s introduction to the business, the First Respondent explained their expectations, and that they had worked hard to get UKAS accreditation, it was their prized asset and no analyst would ever be expected to put that at risk. The First Respondent accepted that any experienced analyst would know the importance of accreditation, but said that they may not know how important it was to him. The Second Respondent also said at MW2-3 that he informed the Claimant on 27 November that he represented the company at all times, that it was his role to ensure that the safety of the accreditation was paramount, and that the Claimant was also informed he would need to comply with the company’s QC system at all times. The Second Respondent says everyone was given this kind of briefing because the Respondents spent a lot of time and money on getting the accreditation, the Fourth Respondent could not trade without it, and because it is standard practice to outline what is expected of staff when they join. It cost £12,000 to get the initial accreditation and £10,000 per annum to maintain it. The Claimant denied that these comments were made, saying the Respondents were simply seeking to bolster their case. Our conclusions were: 16.1. We could readily accept that the financial implications of UKAS accreditation were as the Respondents set out. 16.2. As a result of that in particular, as those who had set up and were running the business, we did not find it surprising that the First and Second Respondents would have mentioned the importance of the accreditation when new starters attended their induction. We could understand the Claimant’s submission that this evidence was rather convenient, and it may well be that the precise words recorded in the First and Second Respondent’s statements about what was said at his induction were not exactly the words used, but whilst we will come separately to what the Respondents actually did in practice, we concluded that the gist of what they recorded was communicated to the Claimant. Our own experience suggests that in many (perhaps most) businesses, large or small, regardless of the new starter’s experience, a standard induction process, with key messages, is followed. Disclosure 1 – vehicle service, 28 November 2019[17]We did not think we had to resolve the dispute about whether the Claimant was promised a new vehicle before he started his employment, but we accepted that he thought this is what had been said during the recruitment process. His vehicle was in fact two years old. The First Respondent and the Claimant checked it on the induction date and no issues were identified; the Claimant then drove it home, from Dunstable to Walsall. The Respondents say it had been regularly serviced, though the garage did not always stamp the log book accordingly, but we did not need to decide whether it had been or not. What was clear is that the Claimant noticed later that evening at home that the log book suggested there had been no service for 21 months.[18]It is agreed that he called the First Respondent the next morning and pointed this out. We were satisfied that he communicated that the vehicle needed servicing and that he wanted it serviced. He says he also told the First Respondent the vehicle may not be safe to drive. As there was no explicit challenge to that evidence, we found that he said something to that effect as well. The service was done on 3 December 2019 – page 615. The Claimant’s case was that the absence of a service may have meant the vehicle was unsafe, given the mileage that analysts clock up travelling to sites across the country. The Respondents’ case was that a vehicle not being serviced does not mean it is unsafe, though they accepted that services are more important where the mileage is more than average. Disclosure 2 – vehicle windscreen, and detriments 1 and 2 – comments on 30 November and 12 December 2019[19]The Claimant informed the First Respondent on 28 November 2019 that there was a crack in the vehicle windscreen. He says it was initially 8 to 12 inches, and in his line of vision, though he says he did not notice this when taking possession of the vehicle on 27 November because it was dark. This might be thought somewhat surprising given he then drove it home, though in fairness he told us that the next day it increased to be the full length of the windscreen. We did not have to decide whether that was the case or not. He messaged the First Respondent (page 656) saying it needed replacing, subsequently chasing for the insurance details – page 660. The Claimant says that at one point during these exchanges, the First Respondent shouted, “You are always complaining about the fucking vehicle since you started here”. The Claimant says he asked the First Respondent if he had a problem with him, and the reply was, “Get the bloody thing booked in”.[20]The First Respondent denies the comment the Claimant attributes to him. He says he would not have said “you’ve always been complaining … since you started” when the Claimant had only been employed for three days. He says he sent the Claimant the insurance details so that he could book a replacement at the company’s expense and – WB8 – that he was not aware there was a significant crack in the windscreen. He also told us that he did not feel the Claimant was challenging him.[21]At this point the Claimant had raised more than one issue about the car – the fact it was not new, the service, the windscreen, and there had also been a comment about a bumper. Whilst it may well be that these were things the First Respondent would rather not have been dealing with, we nevertheless concluded that this comment was not made because: 21.1. It does not make sense for the First Respondent to have said that the Claimant “always” made comments about the vehicle “since he started”, given he had only been employed for three days. That is the wording the Claimant explicitly relies on and we found it somewhat implausible. 21.2. The Respondents submitted that we should conclude that the First Respondent is not the kind of person to behave in this way based on our own observations at this Hearing. Generally speaking, people are on their best behaviour in the Tribunal, but we did note that the video of part of the meeting on 8 April 2020 (see below), which became very difficult, showed that whilst the Claimant became very animated, the First Respondent was understated, calm and polite. We understand that he was being filmed at that point, but it was nevertheless telling that this was his demeanour on that challenging occasion. We rejected Mr Ennis’ submission that the video shows the First Respondent losing his temper. 21.3. The Respondents needed to keep their analysts, and the First Respondent would not have been likely to risk jeopardizing that over an issue such as this, nor is he likely to have become so impatient after such a short period of working with someone who he clearly liked. 21.4. What the Claimant described is also out of kilter with all of the messages between him and the First Respondent which, as the Respondents submitted, were friendly and businesslike and, we would add, respectful.[22]The Respondents accept that the vehicle was booked in on 5 December 2019 for the windscreen to be replaced and rescheduled for 12 December 2019 at 15:30, for operational reasons, namely that the Claimant was needed to work. On 11 December 2019, the Claimant received his work schedule for the next day, namely two jobs in Birmingham and, on 12 December itself, the First Respondent messaged him to say his afternoon job had been changed and would be in Cambridge. The Claimant messaged back that he was not able to do this allocated work and get back to get the windscreen fixed by 15:30. The First Respondent replied (page 685), to say that the Claimant should see how it goes and if he thought he would not get back in time, the windscreen replacement could be rescheduled. He told us the morning job was very quick, so he thought the Claimant might have been able to make it.[23]The Claimant then messaged the First Respondent outlining the legal position regarding a cracked windscreen (attaching a screenshot – pages 686 to 689). The message said that it is illegal to drive with a cracked windscreen. The screenshot, which appears to have been pulled from a website, said that it can be considered as a motoring offence to drive with a damaged windscreen and that “this could potentially be fatal”. The Claimant told the First Respondent he did not appreciate the position he was in, did not feel valued, and that it “would probably be best I cease rendering services after today until my health and wellbeing is given due consideration”. The Respondents’ Further Particulars of Response at page 110 denied that the Claimant sent a message outlining the legal position. The First Respondent accepts that was wrong.[24]The Claimant accepts that all the WhatsApp messages in the bundle (pages 630 to 718) were friendly and businesslike, but says that within 5 minutes of him sending the information about the law on windscreens, the First Respondent called him swearing and shouting and saying he had better go and “do that fucking job” (that is, in Cambridge), and if the Claimant did not, he would “lose his fucking job” (RS27). The Claimant says he asked the First Respondent if this was because he was Black (protected act 1), and that the First Respondent continued to shout, said the Claimant should never have put something in writing, should never do it again, and added before hanging up that the Claimant should do the Cambridge job if he knew what was best.[25]The First Respondent told us that the Claimant’s threat to withdraw his services shocked him, he did not want to lose him, and so he called him and told him this. He says at WB13 that he explained to the Claimant that the screenshot said it can be an offence to drive with a cracked windscreen but that there are many factors to be considered such as the size and location of the crack, also confirming that a hire vehicle could be available and stressing he would never intentionally endanger an employee’s health and safety. The Claimant denies that any of this was said.[26]The First Respondent denies shouting, swearing, pressuring the Claimant to drive the vehicle, threatening him with his job and saying he should not put anything in writing again, also denying that the Claimant asked if this was because he is Black. He says at WB14 that the intention of the call was to ensure the Claimant remained an employee. He says he was disappointed and surprised, not angry, and told the Claimant he would rather he call before making a formal complaint, which is how he likes to manage people. It can be seen at page 689 that the First Respondent messaged the Claimant – it is agreed after the call – to say he would cover the Cambridge job; he says he also said it on the phone, and was confirming it after checking he could do so.[27]The Claimant says that the First Respondent’s comments and conduct were because of his race, as he took exception to a Black man challenging him. The Claimant’s diary at page 621 does not mention on this date that he felt discriminated against, though he says there were lots of things he did not include in it, such as his WhatsApp message to the First Respondent, which is correct. The First Respondent says at WB15-16 that the Claimant had been invited to the team meal in Birmingham on 24 December 2019, and on 23 December had picked up another vehicle, which also had a windscreen crack but the Claimant was happy to drive it – pages 645 to 646. The Claimant says it was only a small chip, which we accepted as unchallenged evidence.[28]Our factual conclusions regarding 12 December 2019 were as follows: 28.1. The First Respondent clearly wanted the jobs done, operational concerns do seem to have been his priority, and the Claimant may understandably have felt concerned about that, but we do not accept that this shows that the First Respondent, or the Respondents generally, were careless about matters of health and safety, not least because – whether he should have asked about it or not – the First Respondent does not appear to have been aware of the extent of the windscreen damage, and also felt that the Claimant could have got back from his appointments in time, as the morning one was expected to be very short. 28.2. We did not see the need to resolve the conflict of evidence over whether the First Respondent provided the reassurances he says he gave when he and the Claimant spoke by telephone. 28.3. We concluded on balance that the telephone call did not transpire as the Claimant says. We did not accept that the First Respondent shouted or swore, referring again to the general tone of the messages exchanged between him and the Claimant, and to the First Respondent’s behaviour under pressure on 8 April 2020. We also noted his specific message to the Claimant shortly after the phone call, at page 689, saying he would cover the Cambridge job for the Claimant. Mr Ennis suggests this was just the First Respondent feeling guilty and that if he had said it in the call, he would have used the word “confirm” or similar. We thought that was asking too much of someone sending a quick text message and that it was much more likely the message reflected what the First Respondent told us, namely that he indicated in the call he would cover the job and then said in the message that he would do so, having checked his schedule. 28.4. The absence of any record of this event in the Claimant’s diary was a further, albeit minor, detail confirming our conclusion, as was the subsequent invitation to the Christmas meal which is indicative of the nature and tone of the relationship as it was at that point. 28.5. Further, the Claimant did not in fact withdraw his services, which we thought was a strong indication that the conversation was more along the lines indicated by the First Respondent; the Claimant must at least have felt reassured to some extent. 28.6. His case was that the matter still rankled with the First Respondent at the point of dismissal because it was mentioned in the dismissal letter, so that it is likely the First Respondent behaved on 12 December as the Claimant alleges. We will come to that in detail, but we did not agree with that. The point to note here is that the dismissal letter referred to what the Claimant had said about health and safety being “unfortunate”. That is not a statement which supports the contention that the First Respondent was shouting and swearing at the Claimant as alleged on 12 December 2019. 28.7. Furthermore, preferring the Respondents’ account for the reasons given above, we thought the Claimant probably misconstrued the First Respondent’s comment that he would prefer to chat about things, before a formal complaint was made, thinking the First Respondent was saying he should not put things in writing. 28.8. It followed that the Claimant did not ask the First Respondent whether he was saying these things because of the Claimant’s race, because we have found they were not said, and that the First Respondent did not shout and swear. It was also telling that this particular point is not noted in the Claimant’s diary, which was not a record of work appointments only. As set out in Mr Ennis’s submissions, the Claimant is someone who is alive to issues of race discrimination and on his own case was alive to the possibility of such issues from the start of his employment with the Fourth Respondent. It was also telling that there was no complaint to this effect in writing. We accepted that the Claimant would have been complaining to the person he was complaining about, but that is what he had done on this very occasion, and in strident terms. Disclosure 3 – hotplate and vaporiser, 24 December 2019[29]A hotplate and vaporiser is a machine which has two functions, both of which are necessary to correctly read slides under a microscope and so provide clearance. In non-technical terms, the vaporiser drops a chemical on the slide, and the hotplate dries it so that it can be read.[30]On 24 December 2019 (see further context at detriment 3 below), the Claimant noticed his hotplate vaporiser was not firing up which, as he says at RS54, means it was not possible to mount, clear and read slides. He called and messaged the First Respondent (page 699A), who called back. The Claimant says at RS56 that the First Respondent asked if the area looked clean, the Claimant confirmed it did, and the First Respondent said to complete the paperwork and email it in. In other words, the Claimant says the First Respondent was effectively telling him to clear the job regardless of whether he could read the slides. The First Respondent denies saying that. He says there are many reasons why a job cannot be cleared on the day, in other words this was a regular occurrence, so he did not need to tell an experienced analyst like the Claimant to leave the site if he could not clear the readings. He also told us the company had to keep a record of failed jobs, which UKAS inspected. We accepted the First Respondent’s evidence that there are many reasons why jobs could not be cleared and that it was a not uncommon occurrence, simply on the basis that this is inherently likely to be the case, but will come back below to the question of whether he said on this occasion what the Claimant alleges.[31]It appears to be agreed that the Third Respondent then called the Claimant and said he would try to get him a replacement hotplate and vaporiser, but in the meantime, the Claimant should use a lighter to dry the slide as the client needed the paperwork. The Claimant says he does not accept that this practice is safe, given the flammable nature of the chemicals used and referred us to the document at page 629 which indicates that no open flame should be used with triacetin. He nevertheless relented (RS58) and did as the Third Respondent said. The Third Respondent says use of a lighter is a last resort (BS17) but is taught on British Occupational Hygiene Society (“BOHS”) courses (as the First Respondent also says) and was used at the UKAS inspection referred to below. It appears to be agreed that the UKAS representative did not challenge the use of this method on that occasion. The Third Respondent says that on 24 December he asked the Claimant if he could read his slides, was told he could, and said to the Claimant (BS17) that if he could not read the slides, he should not issue the certificates. The Claimant denies this was said. His diary for this date at page 623 records him raising the issue – “hotplate broke, told Billy not safe to do job” – but does not record any concerns about the use of a lighter, nor one of the Respondents telling him to clear the inspection anyway. The Claimant messaged the First Respondent afterwards (page 646) saying, “Billy, hot plate is working again”, said he had sent the paperwork as agreed, and then said, “ok I’m leaving site now in Wrexham so have a merry xmas”. He accepts that was a friendly, bright message.[32]We will return below to whether the Third Respondent told the Claimant to use a lighter to get the job done, that is regardless of whether the reading could be done properly or not, or whether he told him not to issue the certificate if he could not properly read the slides. For present purposes, whilst the C could quite properly feel concerned about using a lighter, given the chemical being used, he could not challenge in evidence what the Respondents said about its being mentioned on the BOHS course and not being frowned upon by the UKAS inspector and so we found that it was an acceptable last resort as the Respondents said.[33]The Claimant says at RS59(n) that the Respondents have removed the details of the hotplate vaporiser, with its unique reference number, from a record of equipment usage at page 503, to hide the fact that the job the Claimant did on this date, and other jobs he did on other dates around the same time, were done without the correct equipment. He says this is shown by the fact that the box at this section does not align with all of the others on the form. All of the Respondents said to us that this list is of equipment which requires calibrating or servicing, and that there is no such requirement with the hotplate vaporiser. The Claimant also says his signature has been forged on this document, because it overlays the word “signature”. We concluded that the Claimant has got this wrong. It was common practice to use electronic signatures, the Respondents provided a clear explanation as to why the vaporiser and hotplate is not mentioned, and in any event if it had been removed to cover the Respondents’ tracks, there would have been a row, not a column, missing from the document. Disclosures 4 and 5 – hotplate vaporiser, 22 January 2020[34]We deal with disclosures 4 to 6 slightly out of chronological order, as they also concerned the hotplate vaporiser. The Third Respondent says that replacement hotplates were provided for the Claimant. There is a dispute about when, which we did not think we needed to resolve. The Claimant says at RS60 that on 22 January 2020 he called the Third Respondent and said that the hotplate was still not working properly, the Third Respondent again telling him to use a lighter. The Claimant says he told the Third Respondent he was unhappy using that method and did not feel it was effective enough in clearing slides, asking for a replacement. He says that the Third Respondent again pressured him into clearing the jobs. Again, we will return below to the question of whether he was pressured in this way, and thus whether he raised concerns about clearing slides without a functioning hotplate, but for present purposes note that it is agreed the Claimant did speak with the Third Respondent about the hotplate on this day. It is also accepted that the Claimant told the Third Respondent again that evening by WhatsApp message (RS61 and page 719) that he had tested the equipment at home and whilst the hotplate was working again the vaporiser was not. Disclosure 6 – hotplate vaporiser, 28 January 2020[35]Having collected another hotplate vaporiser on 27 January 2020, on 28 January (RS63) the Claimant texted the Third Respondent to say both were not working – see page 721. He said it was really starting to “cheese [him] off”. Detriment 3 – comments on 24 December 2019[36]On the morning of 24 December 2019, the First Respondent called the Claimant at around 10.00. He says at RS46 that the First Respondent yelled at him, accusing him of not being onsite when in fact he was not due there until 13.00. The Claimant says that after some disagreement, the First Respondent called him back and confirmed that the Claimant was right and should quickly make his way there. The Claimant says that on arrival on site (RS51) the onsite supervisor shouted at him about the delay, the Claimant eventually walking away and shouting, “It’s not my fucking fault, just leave me alone”, then commencing his work. He says at RS53 that the supervisor later apologised. The Respondents say that the customer complained about the Claimant’s behaviour, though there is no documentary evidence of this in the bundle. The Second Respondent told us that on reflection the Claimant should have been suspended for this, but taking someone out of a small business is difficult and the matter had been sorted on site. It was agreed that there was an altercation between the Claimant and the client on this date, and that they resolved it on site. It also seemed likely to us that the client mentioned it to the Respondents, given the strength of what the Claimant said, though we thought more likely to say what had happened and that things had been resolved, than by way of formal complaint. The Claimant says that when he enquired about replacement equipment (see Disclosure 3 above), the First Respondent said that the client was the biggest in the West Midlands and if the job was not done, the Fourth Respondent would lose the contract, resulting in losses of jobs in the area.[37]The First Respondent’s account at WB18ff is that there was a mix up with the Claimant’s jobs which meant he was late attending the one in Birmingham, and that all he said was that the Claimant should get there as soon as he could. He says that when the Claimant raised a problem with the hotplate, the First Respondent advised him to keep trying to get it working and complete the job as the client was important, and that the Claimant did not contact him further. He denies pushing the Claimant to complete the work regardless of whether he could do so correctly, and told us no-one would have lost their jobs in the West Midlands (there was only one other employee based in the region) if the clearance had not been completed. Later that day, after the Claimant told him he was leaving site as above and wished him a merry Christmas, the First Respondent messaged the Claimant (page 646) to say thanks, said, “You have a good Christmas too and [because of the mix up regarding his work] have 27 December off on me”, the Claimant replying, “Thanks Billy, your (sic) welcome”. The Claimant says the First Respondent gave him the extra day off because he felt guilty over his earlier actions and that he behaved as he did on this occasion because he did not like being challenged.[38]Again, we will return below to the question of whether the First Respondent pushed the Claimant to complete the job regardless of process. Our factual conclusions were: 38.1. We thought it likely the First Respondent felt under pressure when an important client said that the Claimant was not on site and when the First Respondent wrongly thought he should be. 38.2. Just because we found that he did not do so previously, obviously does not mean that the First Respondent did not shout and swear on this occasion, but what is recorded in the Claimant’s diary at page 623 is telling – “Billy [the First Respondent] forgot to send me this job. Led to argument on site with supervisor!”. It does not say that it led to an argument with the First Respondent himself. 38.3. Again, the surrounding text messages we have referred to were not supportive of the Claimant’s case either. 38.4. The alleged detriment was that when the Claimant said the hotplate was not working the First Respondent said that the job needed to be done, and “if we lose the contract, it would mean losses of jobs in the West Midlands”. Again, this is not in the Claimant’s diary nor was it raised with the First Respondent, a fact to which we attached some weight given that just 12 days previously, the Claimant had raised in strong terms that he did not feel valued by the First Respondent. In other words, this is someone who would have felt confident enough to challenge this kind of behaviour had it happened. 38.5. Also, whilst we had no doubt that the First Respondent said words to the effect that the job needed to be done (we will come back to the question of whether it was said that this was regardless of whether it was done properly or not), it seemed unlikely to us that he would have said that it would lead to losses of jobs in the West Midlands, in particular given that the role of an analyst involves travelling to all parts of the UK. For all of these reasons, we did not think that the First Respondent was indicating that the Claimant was at risk of losing his job.[39]At page S.63, the record of the Claimant’s Birmingham job for that day, it is said he completed stage 1 at 10.10. The Claimant cannot have done that as he was still at home around 10.00. At page S.62, it can be seen that this record was emailed to the First Respondent. The Claimant says this proves the First Respondent knew that falsification of documents was going on, and that the First Respondent had pressured him to complete the job. The First Respondent says he had no reason to check the certification. He says at WB19 that the paperwork issued by the Claimant shows that stage 3 was passed before the Claimant called him (page 358). The Claimant says the whole report was false in terms of the timing of the work done. Again, we will come back later to the Claimant’s case about falsification of documents generally. As to whether the First Respondent knew the timings on this particular certificate were wrong, we accepted his evidence. It is obvious to us that as Managing Director he would not – and could not reasonably be expected to – read every certificate that was sent to him to check that it was ok. He knew the Claimant was an experienced analyst. Detriment 4 – comment on 30 December 2019[40]The Claimant says that at the Fourth Respondent’s offices on 30 December 2019 the Third Respondent presented him with QC slide readings that had already been signed, using a signature that looked like his. The Third Respondent says that did not happen. The Claimant says at RS40, “I told all three Respondents I was not going to do what they were pressuring me to” and that he asked them why he could not do it himself as a qualified analyst. He says the Second Respondent laughed and said, “You should be used to bending rules”. The Claimant adds that when he asked what was meant by that, the Second Respondent replied, “Nothing mate, it was just a joke”. He also says (protected act 2) he asked them whether their asking him to do this was anything to do with his race. The Respondents say emphatically that this did not happen. We will set out below our factual conclusions as to what took place on this occasion, when we deal with the general allegation of doctoring documentation. Detriment 5 – exaggerating the Claimant’s mistakes at work on 11 March[41]The Claimant says at RS66-68 that at a meeting at the Fourth Respondent’s offices with the First and Second Respondents on 11 March 2020, they pointed out mistakes on his paperwork, the Claimant apologised, but they kept talking about the same mistakes saying that the Claimant should not be making them, thus, the Claimant says, exaggerating them.[42]It is agreed that a meeting took place on this date. It seems uncontroversial that it was between the Second Respondent and the Claimant, with the First Respondent working in the background. The First Respondent says at WB22 that he became aware of issues with the Claimant’s work not long after the UKAS visit in January; he told us this was a reference to clerical errors on certificates. He also told us that he understood any issues had been explained to the Claimant by the Third Respondent and rectified as a form of training. He denies exaggerating the mistakes. The Second Respondent says at MW11 that the Claimant had issues with both RICE and QC counts. In oral evidence he accepted that there were in fact no issues with the Claimant’s QC counts, and so this was an error in his statement. As to the RICE counts, he says at MW14 that the Claimant’s counts on 3 February 2020 had three separate band C results, which required additional counts to be done. That is not disputed. The Second Respondent also told us that the Claimant made clerical errors in certificates, citing his email to the Claimant of 19 February 2020 at page 480 as an example. The email indicates that the Claimant had incorrectly recorded four samples being run using the same pump identification, and that the certificate was overwritten, in other words, the Claimant made a mistake and overwrote it rather than rewriting the certificate. The Second Respondent told us they were not major errors, but had recurred.[43]Other analysts made these kinds of errors too, and were asked to correct them, such as Jack Hatton, who passed his probation. The First Respondent thinks it likely there were meetings with the other analysts about these matters in the same way as with the Claimant. Our factual conclusions on the evidence presented to us about this alleged detriment were as follows: 43.1. There were clearly meetings with the other analysts – at the least one might say discussions with them – about their mistakes, as the Claimant himself says that one had to spend a whole day correcting mistakes and the other half a day. The fact that the other analysts spent longer in the office than the Claimant correcting mistakes is inconsistent with the notion that his mistakes were exaggerated. 43.2. The meeting with the Claimant does not appear to have been formal. The First Respondent was working away in the background, which again suggests the Respondents were not making a big issue of the mistakes the Claimant had made. 43.3. It is agreed the Second Respondent spoke with the Claimant about the mistakes. The Claimant gave us no specifics on what he says was exaggerated, except that the mistakes were repeatedly referred to. We noted that he did not say there was another meeting at which he was spoken to about mistakes. It seemed likely to us therefore that the Second Respondent’s approach at the meeting reflected that set out in his email at page 480, which was matter of fact and professional and cannot be said to have been unfairly critical. 43.4. We accepted that the Respondents only pointed to that one email as evidence in support of their case that the Claimant was making mistakes, but the Claimant did not deny he was. 43.5. The Second Respondent’s message to the Claimant on 10 March 2020 (page 634) which said, “Come to the office tomorrow to try and sort your paper work out please around 9.30” is not indicative of a heavy-handed approach. 43.6. We found therefore that there was no exaggeration of the Claimant’s mistakes. Detriment 6 – sending the Claimant home on 11 March 2020[44]The Claimant says he reminded the First and Second Respondents on 11 March 2020 that he had barely had any training on company paperwork, and when they kept saying he should not have made mistakes, he said that he should not be precluded from reading his QCs and asked about the impact that would have on doing his job safely. We will return below to whether this was said. What is agreed is that he was asked to leave and go home. The Claimant says he suggested to the Respondents that this was something to do with his colour, that the Second Respondent did not reply and that the First Respondent said it had nothing to do with it. The Claimant describes being sent home as an abuse of power, RS72. His case is that it was because of his protected disclosures and protected acts.[45]The First and Second Respondents deny this account, saying that the Claimant did not raise any issues of race until the date he was dismissed. The Second Respondent says at MW14 that when he raised with the Claimant the complaint from the customer about him being aggressive on 24 December 2019 (see above), the Claimant became aggressive and volatile, by which he means standing up whilst he and the First Respondent were seated, raising his voice. The First Respondent told us that the Claimant being aggressive with a client was not raised (as the Claimant also says it was not raised, we concluded that it was not) but says at WB23 that the Claimant got louder and confrontational, and that it was clear he was upset about an issue with his mother. The First Respondent says he therefore suggested to the Second Respondent that the meeting be concluded, the Claimant be given some time to sort out his problems at home, and that he should take the rest of the day off, with the meeting to be rescheduled. He told us the Claimant thanked him. The Claimant denies that any of this was said.[46]At page 628, it can be seen that the Claimant’s diary for this date records, “Asked to leave due to QCs raised”. We will come separately to whether the Claimant said anything about his QC slide checks at this meeting. What is clear is that it was clearly not the Respondents’ plan to send him home. As the Second Respondent’s text message on 10 March had said, they wanted him to sort out his paperwork, and so it seems to have been a routine matter as far as the Respondents were concerned. 47.The meeting clearly took an unexpected turn. The key question is what led to that. The Claimant had said on the morning (page 634) that he was running late because he was having to sort a few things out for his mom, who we now know was sadly very unwell. In our view, that is the best contemporaneous evidence as to what went wrong with the meeting, namely that the Claimant became understandably upset and distracted, and that the First Respondent intervened as a result to say that the Claimant should go home in the way the Respondents describe – whether the Claimant welcomed that or not was not necessary for us to decide. It is agreed that at some point during the meeting the Claimant asked about his notice period. As to whether he said that being asked to go home was because of his race, this is yet another instance of a straight contradiction of evidence between the parties. We therefore reached our conclusions based on inferences from the evidence overall. It seemed to us highly unlikely that the Claimant would have made this comment in the circumstances in which he was asked to go home as we have found them to be – namely the First Respondent’s intervention when he was distracted and upset regarding his mother. We also noted as confirmation of this conclusion that this is not something the Claimant recorded contemporaneously in any form, whether in his diary or in a message to the Respondents, which he was certainly capable of doing. Detriment 7 – dismissal[48]In late March or early April 2020 (see below) the First Respondent received a parking charge notice relating to the Claimant’s company vehicle. He had parked at Aldi on 7 March 2020 from 10.49 am to 12.39 pm and had completed paperwork indicating that he had carried out work issuing a Certificate of Reoccupation during that period.[49]The First Respondent originally said at WB26 that the parking fine was received on 3 April 2020, but he changed this in his oral evidence to 30 March 2020. He told us that what he said in his statement was an error by the Respondents’ former advisers and that he should have checked it more carefully. He insisted the correct date was 30 March because of the date of the Third Respondent’s investigation report which we will come to below. On 3 April, he sent the ticket to the Claimant by WhatsApp, saying “Please see attached and let me know what you think please?” – page 715. He says he did this because it may have been the ticket was issued in error and he wanted to give the Claimant the opportunity to say if that was the case. The Claimant replied – page 716 – saying he had been to Aldi to purchase a disability walking/seating aid for his mother and that he would be challenging the ticket. The First Respondent paid the fine anyway, eventually deducting it from the Claimant’s final pay – see detriment 10 below.[50]The Third Respondent told us he carried out an investigation into what had happened, and the First Respondent says he was told of the outcome of that investigation, both of them referring to the document at pages 540 to 543. The Third Respondent told us the last two pages were completed after the Claimant was dismissed. The document is dated 30 March to 3 April 2020. The Third Respondent says he also called the Claimant to discuss the issue with him. He was surprised that neither this nor his report were mentioned in his statement.[51]We concluded as follows: 51.1. The date of the ticket itself did not assist us in answering the question of when the First Respondent received it. Even if it arrived at the Fourth Respondent’s offices earlier than 3 April, we heard evidence that the First Respondent was not in the office every day and we could not disregard what he said in his statement. Although we accept errors can be made, we concluded that he did receive it on 3 April as his statement said, and as was set out in the Particulars of Response at page 113. It also seemed to us inconsistent with the idea of earlier receipt that he sent the ticket to the Claimant on 3 April asking for his comments. 51.2. Secondly, whilst we found the Third Respondent’s evidence generally reliable and convincing, on the question of when he prepared the report at pages 540 to 543 and whether he spoke to the Claimant as the document indicates, we concluded that we could not trust what he told us. This was particularly because, had he spoken to the Claimant, we thought it inconceivable, first that the First Respondent would have sent the message on 3 April asking for the Claimant’s comments, and secondly that the Claimant would not have referenced his conversation with the Third Respondent when he replied. It was also very surprising that neither of these matters were mentioned in the Third Respondent’s statement, given their importance. We could not say precisely when he prepared the report, but it was certainly after 3 April.[52]The Second Respondent sent the Claimant to do jobs as normal on 6 and 7 April 2020 – page 547. He says he only saw the Third Respondent’s report on the evening of 7 April. We could not say whether the Second Respondent saw the report at the time, but given the dispersed nature of the Respondents’ working practices, we accepted that he did not know the details of the issue when he allocated work to the Claimant on the two preceding evenings. The Claimant was invited to a meeting on 8 April 2020; he was not told what it was about.[53]The First and Second Respondents were present. The meeting lasted around 20 minutes. As we will come to below, the last few minutes were recorded. The Claimant says at RS79-80 that he was told things had not been working out and that the Respondents were terminating his contract. He says it was only a few minutes later, when he pressed for an explanation, that it was said that on 7 March 2020 he had manipulated paperwork and had left the client site when he should have been there. The Claimant says at RS81 that he said to the First Respondent that he was not the only one to have manipulated paperwork, and that the First Respondent replied “We’ve all manipulated paperwork”. The Claimant mentioned this during the recorded part of the meeting (see below), referring back to an earlier alleged comment by the First Respondent to this effect. The First Respondent denies the comment, and indeed denied having said it during the recorded part of the meeting. He asserts that the Claimant was effectively stage-managing things from this point. We will return below to the question of whether this specific comment was made.[54]The Claimant goes on to say at RS82-3 that when he said they needed to provide more information (that is, justifying his dismissal), the Second Respondent said it was also about the Claimant making paperwork mistakes. The Claimant says he replied they had all made mistakes on paperwork, asking whether it was because he had complained, to which the First Respondent replied that it was just that things were not working out. The Claimant says he then referred to two colleagues who had been required to spend time correcting mistakes as well (see above). He also says at RS86 that had his work been the real reason, he would not have been chosen for interview for a UKAS audit. The Third Respondent says that UKAS like to speak to the newest analyst, and just because the audit confirmed the Claimant to be competent on that day does not mean that he was doing his work correctly on all other occasions. We accepted the Third Respondent’s evidence on these points: the Claimant helping the company to pass the audit was of course a good thing, and he was regarded by all of the individual Respondents as a good and experienced analyst, but it is plain that this does not mean that clerical mistakes were not being made on other occasions.[55]The Claimant at some point in the meeting said there was “a race thing going on” (protected act 4), which is clear from the video recording, and which the Respondents accept was said, though in their Response at page 137 (paragraph 5) it was denied. The Claimant says he also said if it was so serious, “what about his QCs that he had been complaining about which were a lot more serious?” (this is Disclosure 7). The First Respondent denies this was said. The Claimant says at RS89 that all of a sudden, the First Respondent escalated the dismissal to gross misconduct, at which point the Claimant started to record their conversation. He says at RS92 – “[he] … put to [the First and Second Respondents] that they had falsified [his] signature and QC records” (protected act 5), whilst the First Respondent says at WB39/41 that the Claimant did say QC slides had been doctored but did not say this was because of his race or colour. The Claimant does not mention that he referred to his race or colour in any of paragraphs 88, 92 and 93 where he recounts making the comment about falsifying QC documents at this meeting. Even accounting for the fact that he was a litigant in person when he prepared the statement, and that errors are sometimes made, we thought it a noticeable omission that he failed to mention this at three points in his statement. On balance therefore, we concluded that he did not make that specific comment.[56]The Claimant told the Second Respondent that he had finished work early on 7 March, the Second Respondent replying that the paperwork did not say so. The Claimant’s account of the events of 7 March given to the Tribunal at RS95ff was that he finished early and only the dismantling of the enclosure was left, so he went to Aldi, leaving the final part of the work to others. His statement goes on to say that stages 2 and 3 (where the analyst goes inside the enclosure for a visual inspection, and collects the air) are the most important parts of the process. He says that operatives do stage 4 and usually the analyst would be doing something else at that point. He told us that when he returned to the site, he asked the onsite supervisor when the enclosure had been dropped, and recorded the time he was told, namely 12.30 (page 509).[57]At page 508 however, it can be seen that the Claimant also incorrectly recorded the time for completion of stage 3, as 11:27. This is not addressed in his statement at all. His explanation for this during his oral evidence was difficult to follow to say the least. He said that he had left for Aldi promptly after reading the slides but did not record the time at which he says he did so (10.45), and what he did record was the time when he had intended his break would conclude. He could not say why he did not record the actual time he completed this stage, saying that as long as the slides were read, he supposes it would not cause any harm, and then saying that whatever time he put down was irrelevant because he had not been doing his monthly QC slides so his work was defective anyway. He then accepted he was not entitled to fill out the form as he wanted, but then repeated that the form was worthless. When asked why, if that was the case, he had recorded what he told us was an accurate time for stage 4, he said he could have put any time down. The Third Respondent says that page 506 shows the last sample was collected at 10.18, it would then have taken 15 minutes for the analyst to decontaminate, and 40 minutes to read the four slides, which means the Claimant could not have completed the readings by 10.45 in any event. He also says the analyst should observe stage 4 including disposal of waste. The Second Respondent agreed, saying that stage 4 is for the analyst to check, after the dismantling, and so is not the responsibility of the operative. We had no hesitation in accepting the evidence of the Second and Third Respondents as to the typical timings for an analyst’s work and the importance of observing stage 4 directly.[58]The Second Respondent told us that the parking ticket issue was raised at the start of the meeting of 8 April, the Claimant accepted this meant he was not on site when the certificate said he was, he said he had finished early, was told this was deemed gross misconduct and so was informed that his employment would have to be terminated. The First Respondent says at WB27 that the Claimant offered no explanation. It is clear he did not offer the explanations he gave to us.[59]The First Respondent says he concluded the Claimant had committed an act of gross misconduct on the basis that paperwork had been falsified. He also said that not to reach this conclusion would have made the Fourth Respondent liable to regulatory action, that (WB29) analysts in the industry had been prosecuted for such matters in the past, and that if the Respondents had knowingly allowed this to continue, the company’s accreditation could have been withdrawn leading to it ceasing trading. He also told us they could have referred the Claimant to the HSE. He says at WB34 that a drop in the Claimant’s performance, complaints of aggression from clients (which the Claimant says were never raised with him – as set out above, we were only told of one issue with a client, and concluded that no formal complaint was made) and the fact that the Claimant was still on probation, meant it was too great a risk to continue his employment. The Claimant told us he accepts his actions would have been gross misconduct if the Respondents were completing documentation accurately, but as they were not, it wasn’t. We will return in our conclusions to what was in the relevant Respondent’s mind in relation to the reasons for dismissal, but accepted entirely the potential serious consequences of wrongly recording data on certificates that the First Respondent outlined.[60]The Second Respondent says at MW21ff that the Claimant could not see what was wrong with what he had done. At MW26, he adds that he can now see there were other occasions when the Claimant incorrectly recorded information on certificates, for example on 24 December 2019, recording stage 3 as finished at 12:17 but informing WB at 12:39 that the equipment to do it was not working – we have referred to this above.[61]At WB31, the First Respondent says that as soon as the matter of falsifying the certificates was raised, the Claimant became aggressive and abusive. The Second Respondent says it was at this point that the Claimant started to film and “towered above” him asking, “who the fuck do you guys think you are?” The videos (the First Respondent recorded part of it himself after the Claimant started doing so), showing no more than five minutes of the meeting in total, show the Claimant standing up, whilst the First and Second Respondents were sitting down. The Respondents spoke in normal conversational tone throughout – we repeat that we did not accept Mr Ennis’ submission that the First Respondent lost his temper at the point he said he had “changed his mind” (as to which comment, see below). As for the Claimant, he spoke with a raised voice and was animated throughout the video, though we would not say he was shouting. He did however repeatedly talk over the Respondents. At the end of the video, he left the room, and after he closed the door the First Respondent slightly raised his voice to call after him and said if he left with the company vehicle, he would call the police.[62]None of the Respondents had ever dismissed someone before. The First Respondent told us the dismissal letter was lifted from a website, which we saw no reason to doubt. There is a version of the dismissal letter at page 462, in identical terms to that which was emailed to the Claimant on 10 April 2020; this earlier version was dated 8 February 2020. The Respondents say this was a clerical error and the First Respondent insisted that the letter was first written on 10 April. The letter referred to the meeting of 11 March 2020 and to the parking ticket, though it also said that there was no other opportunity to discuss that. It also referred to arrangements being made for the company vehicle to be collected from the Claimant at his home. The Claimant accepted he was speculating that the earlier version was in fact written in February 2020. Page 463(a), the properties of the document referred to above, describes the document as a pdf and so does not prove that it could not have been written, in Word format, before 10 April. In the fifth paragraph it said, “It is unfortunate also that on several occasions you have challenged the management policy on such matters as overtime payments and Health and Safety regarding your company provided vehicle, threatening to withdraw your services”. The First Respondent accepted in evidence that this was a factor in the dismissal and says it was unfortunate that the Claimant saw things differently to him, and that he was disappointed at the Claimant’s threat to withdraw his services.[63]The Second Respondent says he expressed to the First Respondent his view that the Claimant should be dismissed, but that it was the First Respondent’s decision. The First Respondent accepts that. He says the events of 7 March 2020 were the reason for dismissal, and that the Claimant’s clerical errors would not have been a basis to dismiss of themselves. He said to us several times he did not want to lose him. He also said that if he had wanted to remove the Claimant, the threat to withdraw his services or the onset of the Covid pandemic would have been an ideal opportunity, but he did not dismiss the Claimant on either occasion. It is surprising that neither party took us to the email at page 557 sent by the First Respondent to the Claimant on 10 April 2020 and attaching the dismissal letter, which it said “would have been issued” to the Claimant on 8 April 2020. We thought it important to consider it nevertheless. It said that the meeting of 8 April was “regarding [the Claimant’s] performance, failure to complete … probation satisfactorily and ultimately, the situation which [was considered] to be gross misconduct”, which it then elaborated. It went on to say, the specific details of the last of these would have been explained if the Claimant had allowed it, but because he “became verbally abusive” the meeting could not be completed. The letter attached to the email appears to be that at pages 551 to 552.[64]We concluded the following in relation to the meeting of 8 April, in so far as the disputes between the parties were material to the issues before us: 64.1. The dismissal letter was clearly written before 10 April, in fact it was clearly written before 8 April as the email at page 557 indicates. We could accept that the paragraph that said there had not been another opportunity to discuss the meeting of 11 March 2020 and the incident on 7 March 2020 could plausibly have been inserted after the meeting of 8 April because it is clear the meeting was disrupted and proper discussion of those issues did not take place. That said, even taking account of the Respondents’ inexperience in handling such matters and the absence of any professional HR support, what cannot sensibly be said to have been written after the meeting was the paragraph regarding the car – see below. As to whether it was written in February, we could see why that was suggested; after all that was the date on the letter. We accepted however that this was a mistake given that a large part of the letter referred to events after February. In fact, given that the First Respondent only received the parking ticket on 3 April 2020, it must be that the letter was written sometime between then and 7 April 2020. 64.2. It is agreed that the Claimant was told at the outset that his employment was coming to an end. On the question of whether the events of 7 March 2020 were put to him at that point, we prefer Mr Ennis’ submission. We think it very likely that the dismissal letter and the email at page 557 shows what the Respondents planned to say and the order in which they planned to say it. That is not necessarily the same as saying the letter reflects the order of importance of the issues for the Respondents. We will come back to that. It does however indicate in all likelihood how the meeting unfolded, and is probably the best explanation of why the Claimant became upset and started recording the meeting, namely the mention of gross misconduct some time into the conversation. Detriments 8 and 9 – use of vehicle on 8 April 2020, calling the police and April pay[65]The Claimant says at RS79/89 that the First Respondent told him in the part of the meeting before the recording that he would be paid to the end of April and also that he could drive the company vehicle home and that they would arrange for its collection, but when he raised that there was a racial element to his dismissal and asked about what had been happening with his QC slides/documents, the First Respondent said he was not going to pay the Claimant for April and changed his mind about the Claimant driving the company vehicle home.[66]The First Respondent’s account at WB33 is that he told the Claimant not to drive the vehicle – his oral evidence was very clearly that this was from the outset – and that the Respondents would make arrangements to get him home, but the Claimant would not listen. One of the videos (see the transcript at page S.114) shows the Claimant saying “you just told me to drive it home and you’ll collect it”, and the First Respondent saying he had changed his mind. The First Respondent told us that he could not recall what this comment related to as the Claimant talked over him, but in any event says he at no point told the Claimant he could take the car home. It was however sufficiently clear from the transcript that the First Respondent did tell the Claimant earlier in the meeting that he could drive the car home. Indeed, that may well be why the dismissal letter says what it does about the vehicle. After the First Respondent made this comment, as the transcripts show (pages S.114 to 115), he referred several times to the return of the company computer and microscope. The First Respondent told us the Claimant had threatened to wipe the laptop, and download company information, which was of great concern to him. We will come separately to the reason for the First Respondent’s change of mind in our conclusions.[67]It is agreed that towards the end of the meeting the First Respondent told the Claimant he could not use the company vehicle and that if he did, it would be theft and the police would be called, but that the Claimant drove off in it anyway. It is agreed that when the First Respondent said to the Claimant as he left the office that he would call the police if he took the car, the Claimant replied with words to the effect, “I don’t give a fuck”. The First Respondent says there was no opportunity to discuss alternative means of transport. It was he who called the police. The Respondents were later notified that the Claimant had been stopped on the motorway using stinger equipment.[68]The First Respondent says at WB38, and told us in oral evidence, that he called the police because the Claimant took vehicle and the company’s property that was inside it without permission (with a value, he said of around £10,000, including a microscope worth several thousand pounds itself – we had no reason to doubt those figures not least because they were given to the police – see pages 577ff). He says he told them someone whose employment he had just terminated had taken the vehicle without permission. Certainly, his statement to the police, as can be seen from page 576, said that the Claimant had stolen the vehicle.[69]Criminal action was discontinued because of delays in getting the matter to a prosecution. The Claimant says he took the vehicle notwithstanding what the First Respondent said because he thought he was being prevented from using it because of his protected disclosures and because, at the height of the pandemic, he had no other means of getting home. After the police intervention, the vehicle was taken to a compound, where the Claimant attended the next day, in the Fourth Respondent’s uniform. He told us that this was to get his personal property and to “preserve evidence”. His case is that calling the police was malicious and stereotyped him as a Black man committing a crime. We read the police statements given by the First and Second Respondents at pages 577 to 581. They referred to the Claimant being dismissed for gross misconduct, following the events of 7 March and highlighted their concerns about retaining the microscope and laptop.[70]All the dismissal letter said in relation to pay was that holiday pay would be paid “with your final salary for April”. Guided as we were by the dismissal letter as the only contemporaneous document, we found this is likely what was said at the meeting. It is ambiguous and could have meant pay for the whole of April or for what the Claimant had worked for April. It was not raised again in the meeting. Detriment 10 – deductions from pay, April 2020[71]At page 586 there is an email from the First Respondent to the Claimant dated 29 April 2020, setting out what the Fourth Respondent had deducted from the Claimant’s final pay, a total of £570.99, comprising the parking charge, the costs of a new office door lock, and costs related to recovering and repairing the car.[72]As noted above, the First Respondent paid the £40 parking fine; he told us this was to avoid having to pay a higher one by delaying. The Claimant was eventually reimbursed on 20 July 2020, though the Claimant had told the First Respondent on 30 April that the appeal against the fine had been successful. £440.99 was the cost of recovering the company vehicle from the pound. £90 was for new locks on the company’s office door – the Claimant had a key. The First Respondent says at WB38 that this was due to the circumstances of the dismissal and the Claimant’s reaction to it, whilst the Claimant says it was because he is Black and the Respondents assumed that as a Black person he would go back and steal from the premises. There was no lock change when someone called Kamil left; he is White. He resigned and worked his notice. The First Respondent told us that when he went to recover the car, a woman working at the pound told him someone matching the Claimant’s description (it was the Claimant) had been there and said he was authorised to collect the Fourth Respondent’s equipment, specifically the laptop. This was an influential factor in the First Respondent’s decision to implement the lock change. Detriment 11 – CSCS card[73]The Claimant told the First Respondent before his employment began about Construction Skills Certification Scheme costs that his then current employer had recently paid on his behalf and was likely to charge him for on his leaving – see pages 565a to c. He mentioned in an email of 29 October 2019 that it was for a course and/or exams needed to gain access to certain sites and that the total was £300. The Claimant says that the First Respondent promised to pay the costs but went back on that promise, “due to me reminding him of his promise, my race and/or colour and due to me raising my disclosures … to spite me” (RS7). At page 565c, also on 29 October 2019, the First Respondent replied to say, “I would not expect you to be out of pocket because you are joining us. If you are charged for the CSCS card or anything else reasonable, because you are leaving, please just provide any receipts etc and we will help you out with the costs. We would not expect anyone to pay for their own medical or CSCS card”.[74]The Claimant accepts that the First Respondent wanted details of the costs and that the invoice for £300 at page 444 did not provide any detail of what they were for. When asked in evidence when the First Respondent got full details, the Claimant said he left another invoice on the First Respondent’s desk. His email to the First Respondent of 20 April 2020 at page 568 clearly referred to him doing so.[75]The First Respondent says at WB45 that there was no agreement to reimburse CSCS costs, but he told us in oral evidence that he agrees there was and that this was another mistake in his statement. He says that the maximum amount for the card should have been £30. Detriment 12 – doctoring the Claimant’s QC paperwork[76]The Claimant says at RS17 that at no point were any of his QC slides read. This is a matter of considerable importance in this case. He told us he was concerned about the impact this might have on his career, and knew it was wrong, but did it under duress. We recite the parties’ competing evidence on the various factual matters touching on this issue, and then set out our conclusions.[77]On the Claimant’s case, the first such document appears to be that at page 323, dated 10 December 2019. It indicates that the Claimant completed it at the Fourth Respondent’s offices. The Claimant could not say where he was on this date, though his diary at page 620 suggests he was in the West Midlands for the afternoon and it is clear that he could on occasions do a job on site and on the same day also go to the office – see the Second Respondent’s message to him on 28 January 2020 (page 632) as an example. The Claimant says that if he had gone to the office that morning there would be a WhatsApp message from the previous day asking him to do so, otherwise he would not have known to be there. There was in fact a message on 9 December 2019 from the First Respondent at page 677 telling the Claimant his uniform was at the office and that he could go down and collect it.[78]At RS39, the Claimant says that on 30 December 2019, the Third Respondent presented him with an already completed QC document, page 227, purporting to be dated 27 November 2019 (the date of the Claimant’s induction) including with a signature like his own, that he was asked to copy it out and sign it, and when he asked why, the Third Respondent said it was in case they had an unexpected visit from UKAS. The First and Third Respondents told us that UKAS do not make such visits unless there is a complaint raised, which we accepted as unchallenged evidence. At BS4-5, the Third Respondent states that these readings were done at the Claimant’s induction on 27 November 2019 as the document suggests, as part of checking the Claimant’s competence. The First Respondent told us he saw this happening, though this is not mentioned in his statement. Again, we know things get missed from statements, but this was a matter which was right at the heart of the case, as the First Respondent knew, and therefore we could not accept his evidence on this point. The Third Respondent goes on to say at BS9/11 that he met the Claimant the next day for onsite training to test his competency, which was all satisfactory and that he did further audits up to December 2019 so that the Claimant could then work independently. The Claimant did not dispute that evidence about further training. The form at page 227 was completed in the Claimant’s handwriting and with his signature on it. The Claimant says that these events were very upsetting, though this is not noted in his diary for this day (page 623).[79]At RS41 the Claimant says that a similar thing happened on 21 February 2020 (see page 484). When he asked one of the Respondents why they were pressuring him to copy and sign off QC slides paperwork, they said it was due to operational needs, the slides being out with another employee. The Third Respondent told us he had never thought of doing anything like that and the Second Respondent said it does not make sense because there is a library of slides and the whole library would never be out with someone. This document indicates it was signed on site. The Claimant was in Boston, Lincolnshire – pages 482 and 625. The Third Respondent says a quarter of QC slide readings have to be done on site to replicate site conditions, which we accepted, though UKAS reported (page 423) on 30 January 2020 that only two of six analysts had done any counting on site. The Claimant insists no slides were given to him to read on this day. The Third Respondent says collection would have been arranged by telephone call.[80]At RS43, the Claimant says that on 2 March 2020, the Third Respondent told him to complete, sign and date a QC slides document dated 21 February 2020, while dictating the answers. The Third Respondent again says this never happened. The Claimant says he replied that if he was not reading his slides, it could mean jobs onsite were not being cleared safely, the Third Respondent replying they would be available to read next time but again due to operational needs, this was what was required on this occasion.[81]It is agreed there was no March 2020 QC document. The Third Respondent says this is because the Claimant refused to do them after a disagreement over his performance. He referred us to a document at pages 449 to 450, dated 3. February to 20 March 2020. It looks like this was written by the Second Respondent and the intimation is that the Claimant was asked twice to do QC readings at the meeting on 11 March 2020. The Third Respondent accepts that not having done so was a very serious issue, but says the Claimant was given extra time because of his family issues. The First Respondent too says that the Claimant was going to do them on 11 March, but the meeting did not go well.[82]The Claimant also says that the fact there are no errors on the QC documents, unlike on his RICE forms (page 454), shows they are fabricated; he also points out that the “Re-Analysis” box is not ticked. In commenting on that, the Third Respondent said that some RICE slides are not real-world scenarios and analysts struggle with them, so that whilst on both types of reading there is a range of acceptable results, mistakes on the RICE slides are much more likely. The Claimant accepts that was the case. The Third Respondent also told us that the Re-Analysis box is for when another analyst double-checks the work, which seemed logical to us. He accepted there are no records kept of analysts being asked to attend to QC readings, but says this is because the needs of the business were unpredictable, though analysts could do them for example when a job got cancelled.[83]The First Respondent says at WB24 that whenever the Claimant attended the Fourth Respondent’s offices to do RICE counts or QC slide readings, they were available for him. He says, “I would not have a document with QC results already completed … or pressure … the Claimant to copy the details”. The Second Respondent says at MW3, “on no occasion did I tell the Claimant he would just need to sign off paperwork I had completed, nor did I encourage him to submit falsified paperwork” and adds at MW7 that on 28 January 2020, he sent the Claimant information for his audit and asked him to come into the office for RICE counts and at MW8 that on 2 February 2020, he asked the Claimant to attend the office after his job to do RICE counts, which he did on 6 February (page 458). Page 448 suggests that the QC readings on 3 February 2020 had corrections marked on them. As the Second Respondent says at MW12, on 1 March 2020 he asked the Claimant to come to the office the next day, to bring all of his slides and make sure his QC and paperwork was up to date (page 634). Like the First Respondent, the Second Respondent says that on each occasion, the counts were available for the Claimant. He goes on to say at MW9 that on occasion, he asked the Claimant to correct some mistakes and re-send certificates, but (MW22) that is not the same as manipulating certificates – we certainly accepted that correction is not the same as what is alleged by the Claimant.[84]The Third Respondent says there would have been no benefit in doctoring slide readings because the Fourth Respondent wanted competent analysts, though he accepts UKAS would have had no way of finding out whether incorrect dates were put on the forms. The Second Respondent told us that whilst he tried to organise time for analysts to do their QC readings, it was ultimately each individual’s responsibility, which does seem to have been the approach.[85]The Claimant accepts that he read his RICE slides, in January 2020. He says he did not raise with the UKAS auditor his concerns about his QC slide readings not being done, because the Third Respondent was also present and he was not sure how close the auditor was to the Respondents. He says he did not raise his concerns with UKAS by other means, because his focus was on giving end of life care to his mother. He has never reported anything related to this issue.[86]The Response at page 138 (paragraph 14) said that not doing QCs was not a matter of public interest. The First Respondent denies that this means the Respondents were laissez faire about these checks. He described the Third Respondent as being as qualified as anyone in the industry and told us it is insulting that the Claimant has made these allegations. He says he would not let anyone go out on site without the Third Respondent’s assurance that they could read slides appropriately.[87]The question of whether the Claimant was pressurised into manufacturing QC slide readings, or whether the Respondents did not care whether they were done correctly or at all, was central to many of the issues in this case: 87.1. This allegation – detriment 12. 87.2. The allegation that the First and Third Respondents told the Claimant on 24 December 2019 just to clear the slides regardless of whether they could be read correctly. 87.3. The allegation that the Third Respondent pressed the Claimant to clear slides on 22 January 2020, again regardless of whether they could be read correctly, and the Claimant’s case that he replied this was not safe 87.4. The allegation that the Second Respondent said to the Claimant on 30 December 2019 that he should be used to bending the rules. 87.5. Whether (detriment 6) the Claimant raised at the meeting on 11 March 2020 being prevented from doing QC readings and the impact on doing his job safely. 87.6. Whether the First Respondent said on 8 April 2020, “we all manipulate paperwork” and whether the Claimant said, “what about all the QCs I’ve been complaining about?” 87.7. Whether, if these things happened, the Claimant replied to the Respondents by asking whether this was this because of his race.[88]We considered the parties’ respective cases on this core issue in great detail, together with all of the relevant documents we were taken to. Not in any order of importance, those matters which in our judgment tended to support the Respondents’ version of events were as follows: 88.1. There are many reasons why slides cannot be cleared on site. It was therefore expected, and was not unusual. That would tend to count against the idea that the Respondents would push for slides to be cleared on every occasion regardless of due process. 88.2. When we asked ourselves what reason the Respondents would have had to do what is alleged, there was no obvious answer. It certainly did not save them time or effort, though we acknowledge that if their practice of doing QC slide checks had been less than rigorous, it might have saved them problems in advance of a UKAS audit to have someone fill them in retrospectively. 88.3. On the face of it, it is likely the Respondents would have wanted to check the Claimant’s competence in reading slides, especially at the start of his employment. It was not in their interests to risk work being done in the company’s name incorrectly, with the risk of that being found out, and the issues this would cause with clients and potentially with the regulator. 88.4. The cost and effort for the Respondents of securing UKAS accreditation was substantial. We noted the Claimant’s submission that this would mean they would want to ensure all of their paperwork was in order before an audit, but we thought it more likely the Respondents would not have risked their accreditation to avoid doing something that cost them little in time and effort. 88.5. Allied to that, the Respondents did not seek to avoid the Claimant spending a not insignificant time with the UKAS auditor in January 2020, by which time according to the Claimant several false QC records had already been completed. The Third Respondent may have been alongside them for most of that time, but the Respondents would have been taking a huge risk that the Claimant may speak to the auditor about it if they were engaged in this kind of malpractice. 88.6. As it is, the Claimant made no complaint to UKAS whether at the audit or subsequently. 88.7. There was nothing in the Claimant’s diary about this issue except the one entry we have mentioned at page 628 on 11 March 2020, and even that does not state that he was being pressurised to complete false QC forms. 88.8. There was nothing hinting at this in the Claimant’s text message exchanges with the Respondents either – and we have seen that he could be forthright in writing when he felt unhappy, from the earliest stages of his employment. 88.9. Even accounting for the Claimant’s difficult personal circumstances, if what he says had been taking place, it seems unlikely he would have jeopardised his long career in the industry by going along with it and not reporting or in some way recording it. 88.10. It is agreed that he completed his RICE slides correctly, and so there is a certain illogic in the suggestion that the Respondents would take such significant steps to avoid his completion of QC slides, except perhaps that the latter were more frequent. 88.11. The findings of the UKAS audit criticising the Fourth Respondent for failing to ensure sufficient QC readings on site show that at least some site counts were being done (or at least recorded) and that UKAS did not pick up on office counts being missing. There is also some force in the Respondents’ submission that they plainly did not fabricate documents to cover this omission. It was there for UKAS to see. 88.12. If the QC reading sheet dated 27 November 2019 already had the Claimant’s forged signature on it, as he insists, it is somewhat illogical that the Respondents asked him to copy it. 88.13. UKAS does not carry out unexpected visits, and so it is unlikely the First Respondent would have said on 30 December 2019 that this was the reason they were asking the Claimant to simply copy slide readings that had already been done and were backdated to his induction day. 88.14. The text message of 9 December 2019 at page 677 is at least suggestive of the fact that the Claimant may well have been at the office on the next day, meaning that he could have done the QC slide readings which are recorded for that day. 88.15. As to 24 December 2019, the Claimant’s diary says nothing about this issue, whilst making a point of highlighting the altercation with the site manager. The subsequent exchange of messages with the First Respondent was warm and congenial. 88.16. As to 21 February 2020, it is not credible that the Claimant was told that the slides – meaning all of them – were out with a colleague for the reasons the Second Respondent gives as outlined above. 88.17. Page 634 shows that on 1 March 2020, the Second Respondent asked the Claimant to go to the office on the next day, to bring all of his slides and make sure his QC and paperwork was up to date. That is indicative of a rather different picture to that painted by the Claimant. 88.18. The Second Respondent’s email of 19 February 2020 at page 480 also indicates the Respondents’ approach to completion of certificates – he asked that they be completed again as the Claimant had overwritten them to correct errors. 88.19. The Claimant emphasised to us that there were no March 2020 slides, but as Mr Calvert submitted, that tends to support the Respondents’ case that they were not tampering with and manufacturing documentation, otherwise they would exist. 88.20. The speech by the Second Respondent on 26 March 2020 at the start of the pandemic lockdown (page 535) – see below – is also instructive. He said to all staff “make sure you do all your paperwork correctly”. 88.21. The Claimant says the QC slides are too good to be true but in fact there appear to be corrections on those said to be completed on 3 February 2020 (page 448). 88.22. We also had to take into account the issues with the Claimant’s evidence, in particular regarding his completion of the certificate on 7 March 2020. He insists he was forthright about this from the outset. That is not correct. He did not address until asked in oral evidence why he had recorded an inaccurate time for the stage 3 completion, saying in his statement how important that was compared to stage 4, then giving an explanation which was lacking in credibility, and then saying the whole certificate was not worth the paper it was written on.[89]Those matters which might be said to support the Claimant’s case are as follows: 89.1. Our conclusions as to the veracity of the dates on the Third Respondent’s disciplinary report, maintained by him and the First Respondent in oral testimony, which we found to be unreliable on this point. 89.2. The Respondents’ evidence on when the dismissal letter was prepared, which we have also found to be unreliable. 89.3. What the Respondents described as errors in the various versions of their Response, which revealed inconsistencies in their presented case. 89.4. Other inconsistencies in the Respondents’ evidence which we have identified in our detailed findings of fact. 89.5. The fact that the Claimant said repeatedly at the meeting on 8 April 2020 that slide readings had been falsified.[90]The Claimant also says: 90.1. There is no record of him or colleagues being required to attend the office for readings to be done, or of slides being sent to sites for that purpose. That is not quite true as we have seen from the Second Respondent’s communication at page 634, but in any event, it was each analyst’s personal responsibility to make sure they were carried out. 90.2. There was no method of checking whether they were done – but there was, by the Third Respondent at month end. 90.3. The fact he asked about his notice period on 11 March 2020 shows his unhappiness about this issue. It is true that he made this enquiry, but the fact is that it could equally have been because he did not like clerical errors being raised with him and he was also under pressure because of his mother, understandably so.[91]In summary, the balance of the evidence was by no means one way. The Respondents’ practice was not perfect, as UKAS pointed out and as the willingness to use a lighter to dry a slide indicates, but we concluded that the evidence presented to us, when carefully analysed, clearly supported the Respondents’ case that there was no request or expectation that the Claimant would falsify slide readings nor that they did so themselves. The detailed reasons for that conclusion have just been set out, but in short, first, it was simply not worth the Respondents’ while and secondly, the Claimant’s analysis of the various documents he has asked us to pay careful attention to in support of his case does not withstand scrutiny. It was also clear that he was incorrect about certain issues with the slide readings, for example insisting that both QC slides and RICE slides were external assessments. That may well explain his comments at the meeting on 8 April 2020.[92]It followed that in our judgment, on the balance of the evidence presented, neither the First nor the Third Respondent told the Claimant to clear slides regardless of whether they could be read properly on 24 December 2019 or 22 January 2020 and that the Second Respondent did not say to the Claimant on 30 December 2019 that he should be used to bending the rules, because the context in which the Claimant says these comments were made has not been made out on the evidence. It also followed, for the same reason, that the Claimant did not ask on 30 December 2019 whether his being required to falsely complete slides had anything to do with his race nor say on 11 March 2020 that he had been prevented from doing his slides and therefore his job correctly, nor that the First Respondent agreed on 8 April 2020 that they had all manipulated paperwork. None of those statements would make sense without the context contended for by the Claimant. Disclosure 7 is that on 8 April 2020, the Claimant said “What about my QCs that I’ve been complaining about for many months, because that is a lot more serious?” Given that once the recording started, as the transcripts show, the Claimant kept making comments about doing slides when he was not present and so on, we were prepared to accept that this comment was made before the recording began.[93]We have already given our conclusion that the Claimant did not say on 8 April 2020 that his QC slide readings had been doctored because of his race. As for whether he said he had been denied training on that same basis, the Respondents deny that this was said, and whilst at paragraphs 38 and 100 of his statement, the Claimant told the Tribunal that he did not have training, nowhere does he say that this is what he said in this meeting. On balance therefore we concluded that this was not said either. Other matters[94]The Respondents repeatedly asked the Claimant during evidence why he did not resign if they were treating him so badly, when his CV shows he has been able to get new jobs repeatedly. His answer was that he had responsibilities, though he was “on the way out”, given his question about his notice period on 11 March 2020, as soon as he could find an appropriate job. He also says he saw no point in bringing a grievance given it would be dealt with by those he was complaining about.[95]During the early days of the Covid pandemic, in March 2020, the Second Respondent gathered all employees online (including the Claimant) and made clear it was not intended that anyone should leave – pages 535ff. One of the things he said to employees was to continue to ensure paperwork was done correctly. Claim[96]ACAS Early Conciliation for the First, Second and Third Respondents took place from 4 to 5 June 2020, and for the Fourth Respondent on 9 April 2020, the ET1 Claim Form being presented on 9 June 2020. Revised particulars were submitted on 30 June 2020, with permission to amend granted on 24 January 2022 by Employment Judge Quill. Law Protected disclosures[97]Section 43A of the Employment Rights Act 1996 (“the ERA”) defines a “protected disclosure” as a qualifying disclosure made by a worker in accordance with one of sections 43C to 43H. Section 43B then defines what counts as a “qualifying disclosure”. For the purposes of this case, this is any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show that the health and safety of any person has been, is being or is likely to be endangered.[98]It was for the Claimant to satisfy the Tribunal that he made protected disclosures. As the legislation and related case law make clear, there were a number of matters for the Tribunal to consider in this regard, in relation to each disclosure.[99]A “qualifying disclosure” requires first of all a disclosure of information by the worker. In Kilraine v Wandsworth LBC [2018] ICR 1850 the Court of Appeal clarified that “allegation” and “disclosure of information” are not mutually exclusive categories, and so there may be a disclosure of information even if there are also allegations. What matters is the wording of the statute; some information must be disclosed and that requires that the communication have sufficient “specific factual content”.[100]Once a tribunal is satisfied that information has been disclosed, the next question is whether the two remaining requirements of section 43B summarised above are satisfied. The first such requirement is whether the Claimant reasonably believed that the disclosure of the information was in the public interest. The second requirement is whether the Claimant reasonably believed that the information he disclosed tended to show that health and safety of any person had been, was being or was likely to be endangered.[101]On the first of these requirements, as made clear in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2018] IRLR 837, the test is whether the Claimant reasonably believed that his disclosure(s) were in the public interest, not whether they were in fact (in the Tribunal’s view for example) in the public interest. The worker must actually believe that the disclosure is in the public interest and the worker's belief that the disclosure was made in the public interest must have been objectively reasonable. Why the worker makes the disclosure is not of the essence, and the public interest does not have to be the predominant motive in making it. Tribunals might consider the number of people whose interests a disclosure served, the nature of the interests affected, the extent to which they were affected by the wrongdoing disclosed, the nature of the wrongdoing disclosed and the identity of the alleged wrongdoer.[102]The second of these requirements is assessed very similarly. It is wellestablished that it would be for the Claimant to demonstrate that he reasonably believed the information he disclosed tended to show that health and safety was or would be endangered. The cases of Darnton v University of Surrey [2003] IRLR 133 in the Employment Appeal Tribunal (“EAT”) and Babula v Waltham Forest College [2007] ICR 1026 in the Court of Appeal make clear that a disclosure may be a “qualifying disclosure” even if a worker is mistaken in what they disclose, provided they are reasonably mistaken, in other words that they have the required reasonable belief. This is a question of fact for the Tribunal, looking at the Claimant’s state of mind at the time he made the disclosures. The EAT in Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4 said that the assessment of reasonableness in this context involves consideration of the personal circumstances of the Claimant at the time he made the disclosures. Detriment[103]Section 47B of the ERA says, relevantly: “(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 the W has made a protected disclosure.”[104]It was common ground between the parties that following Timis v Osipov [2019] ICR 655, the Claimant was permitted to bring a complaint against the First Respondent under section 47B(1A) related to the detriment of dismissal. We therefore need say nothing further about that case.[105]The test the Tribunal had to apply in determining the detriment complaints was whether any protected disclosure had a material influence on any conduct which the Claimant is able to establish amounted to a detriment. The question is not whether the protected disclosure was the reason or principal reason for that conduct.[106]Section 48(2) of the ERA says that on any complaint such as in these proceedings, “it is for the employer to show the ground on which any act, or deliberate failure to act, was done. In Chatterjee v Newcastle Upon Tyne Hospitals NHS Trust UKEAT/0047/19 the EAT said: “Firstly, it will not necessarily follow, from findings that a complainant has made a protected disclosure, and that they have been subjected to a detriment, alone, that these must by themselves lead to a shifting of the burden under Section 48(2). The Tribunal needs to be satisfied that there is a sufficient prima facie case, such that the conduct calls for an explanation. Secondly, if the burden does shift in that way, it will fall to the employer to advance an explanation, but, if the Tribunal is not persuaded of its particular explanation, that does not mean that it must necessarily or automatically lose. If the Tribunal is not persuaded of the employer's explanation, that may lead the Tribunal to draw an inference against it, that the conduct was on the ground of the protected disclosure. But in a given case the Tribunal may still feel able to draw inferences, from all of the facts found, that there was an innocent explanation for the conduct (though not the one advanced by the employer), and that the protected disclosure was not a material influence on the conduct in the requisite sense. It was common ground before me, correctly, that material influence is indeed (or one of the synonymous ways it is expressed in some authorities – it is all the same test), the test which the Tribunal should be applying. I add that it needs to be borne in mind that, where the claim is of unfair dismissal, under section 103A of the 1996 Act, as the test there is "reason (or, if more than one, the principal reason)", there can be mixed reasons, but there cannot be more than one sole or principal reason … However, where the test in section 47B of the 1996 Act applies, it is possible for the Tribunal to find that more than one matter was a material or contributing influence or ground. In such a case, therefore, where it is argued, or the Tribunal considers, even if it is not any party's positive case, that one or more of a number of different influences may be at work, it will potentially be open to it to find that more than one of them was a material or contributing influence”.[107]Accordingly: 107.1. The burden of proof lay on the Claimant to show that a protected disclosure was a ground for (a more than trivial influence upon) the detrimental treatment to which he was subjected. In other words, the Claimant had to establish a prima facie case that he was subjected to a detriment and that a protected disclosure had a material influence on the relevant Respondent’s conduct which amounted to that detriment. 107.2. If he could, then by virtue of section 48(2) ERA, the relevant Respondent had to be prepared to show the ground on which the detrimental treatment was done. If it/he did not do so, inferences may be drawn against it/him – see London Borough of Harrow v Knight 2003 IRLR 140, EAT. 107.3. As with discrimination cases, inferences drawn by tribunals in protected disclosure cases must be justified by the facts it has found. Dismissal[108]If the Claimant established that he made one or more protected disclosures, we were then required to consider the reason for his dismissal. The complaint of unfair dismissal could only rest against the Fourth Respondent as his former employer. Given his very short length of service, the specific question was whether his dismissal was automatically unfair under section 103A of the ERA which provides that “An employee who is dismissed shall be regarded ... 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”.[109]Although the Court of Appeal in Kuzel v Roche Products Ltd [2008] ICR 799 overturned the EAT’s decision in the same case (reported at [2007] IRLR 309), the Court expressly approved the EAT’s statement of the burden of proof in section 103A cases, which was as follows: “As to cases where the s103A reason is raised by the employee, if he has less than one year's continuous service, and is thus ineligible for ordinary unfair dismissal protection, he must establish that his protected disclosure was the employer's reason (or principal reason) for dismissal in order, in the first instance, to found the Tribunal's jurisdiction to entertain his complaint”. In the normal way, that required us to consider the facts which operated on the mind of the employer when taking the decision to dismiss, based on the direct evidence before us or based on inference from primary facts established by the evidence. Burden of proof – Equality Act 2010[110]Section 136 of the Equality Act 2010 (“the Act”) provides as follows: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court [which includes employment tribunals] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”.[111]Direct evidence of discrimination is rare and tribunals frequently have to consider whether it is possible to infer unlawful conduct from all the material facts. This has led to the adoption of a two-stage test, the workings of which were described in the annex to the Court of Appeal’s judgment in Wong v Igen Ltd (formerly Leeds Careers Guidance) [2005] ICR 931, updating and modifying the guidance that had been given by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205. The Claimant bore the initial burden of proof. The Court of Appeal held in Ayodele v Citylink Limited and anor [2017] EWCA Civ. 1913 that “there is nothing unfair about requiring that a Claimant should bear the burden of proof at the first stage. If he or she can discharge that burden (which is one only of showing that there is a prima facie case that the reason for the relevant Respondent’s act was a discriminatory one) then the claim will succeed unless the Respondent can discharge the burden placed on it at the second stage”.[112]At the first stage, the Tribunal does not have to reach a definitive determination that there are facts which would lead it to the conclusion that there was an unlawful act. Instead, it is looking at the primary facts to see what inferences of secondary fact could be drawn from them. As was held in Madarassy v Nomura International plc [2007] IRLR 246, “could conclude” refers to what a reasonable tribunal could properly conclude from all of the evidence before it, including evidence as to whether the acts complained of occurred at all and whether there was less favourable treatment of someone in materially similar circumstances. In considering what inferences or conclusions can thus be drawn, the tribunal must assume that there is no adequate explanation for those facts.[113]Unreasonable behaviour of itself is not evidence of discrimination – Bahl v The Law Society [2004] IRLR 799 – though the Court of Appeal said in Anya v University of Oxford and anor [2001] ICR 847 that it may be evidence supporting an inference of discrimination if there is nothing else to explain it.[114]In a harassment case, the first stage of the burden of proof is particularly relevant to establishing that the unwanted conduct was related to the protected characteristic, here race.[115]If the burden of proof moved to the relevant Respondent, it was then for it/him to prove that it/he did not commit, or as the case may be, is not to be treated as having committed, the allegedly discriminatory act. To discharge that burden, it was necessary for the Respondent to prove that the treatment was in no sense whatsoever on the prohibited ground. That would require that the explanation be adequate to discharge the burden of proof on the balance of probabilities, for which a tribunal would normally expect cogent evidence.[116]All of the above having been said, the courts have warned tribunals against getting bogged down in issues related to the burden of proof – Hewage v Grampian Health Board [2012] ICR 1054. In some cases, it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, in the absence of a satisfactory explanation, would have been capable of amounting to a prima facie case of discrimination.[117]This decision was considered by the EAT in Field v Steve Pye and Co (KL) Ltd and others [2022] EAT 68. The EAT said that where there is significant evidence that could establish that there has been discrimination, it cannot be ignored. In such a case, where a tribunal moves straight to the “reason why” question it could only do so on the basis that it has assumed the claimant has passed the stage one threshold, so that the burden was now upon the respondent in the way described above. The EAT went on to say that if at the end of the hearing the tribunal concludes that there is nothing that can suggest that discrimination has occurred and the respondent has established a nondiscriminatory reason for the impugned treatment, there would be no error of law in just answering the “reason why” question, but in fact the complaint would fail at the first stage. If having heard all of the evidence the tribunal concludes that there is some evidence that could indicate discrimination, but nonetheless is fully convinced that the impugned treatment was in no sense whatsoever because of the protected characteristic, it is permissible to reach a conclusion at the second stage only, but there is much to be said for properly grappling with the evidence and deciding whether it is sufficient to switch the burden of proof. Particular care should be taken if the reason for moving to the second stage is to avoid the effort of analysing evidence that could be relevant to whether the burden of proof should have shifted at the first stage. Liability[118]Section 110 of the Act provides for an employee to be liable for discrimination, harassment or victimisation where they do something in the course of their employment which by virtue of section 109 is treated as having been done by their employer. It was not argued that any of the first three Respondents could not be liable for any of the complaints directed against them, and so we say nothing further about that. Direct discrimination[119]Section 39 of the Act provides, so far as relevant: “(2) An employer(a) (A) must not discriminate against an employee of A's (B)— …(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 … (d) by subjecting B to any other detriment”.[120]Section 13 of the Act provides, again so far as relevant, “(1) 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”. Section 23 provides, as far as relevant, “(1) On a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each case”.[121]The Tribunal must therefore consider whether one of the sub-paragraphs of section 39(2) is satisfied, whether there has been less favourable treatment than that afforded to a hypothetical comparator, and whether this was because of race.[122]In determining whether the Claimant has been subjected to a detriment, “one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to [his] detriment? An unjustified sense of grievance cannot amount to ‘detriment’” (Shamoon v Chief Constable of the RUC [2003] UKHL 11).[123]The fundamental question in a direct discrimination complaint is the reason why the Claimant was treated as he was. As Lord Nicholls said in the decision of the House of Lords in Nagarajan v London Regional Transport [1999] IRLR 572 “this is the crucial question”. Race being part of the circumstances or context leading up to the alleged act of discrimination is insufficient.[124]Most often, the act complained of is not in itself discriminatory but is rendered discriminatory by the mental processes (conscious or otherwise) which led the alleged discriminator to act as they did. Establishing the decision-maker’s mental processes is not always easy. What tribunals must do is draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances. The Tribunal does not have to be satisfied that the protected characteristic was the only or main reason for the treatment. It is enough for the protected characteristic to be a significant influence, in the sense of being more than trivial (again, Nagarajan and Wong v Igen Ltd). Harassment[125]Section 40 of the Act renders harassment of an employee unlawful. Section 26 defines harassment as follows: “(1) A person(a) (A) harasses another(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic [here, race], 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 … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken 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”.[126]The Tribunal was thus required to reach conclusions on whether the conduct complained of was unwanted, if so whether it had the requisite purpose or effect and, if it did, whether it was related to race.[127]It is clear that the requirement for the conduct to be “related to” race entails a broader enquiry than whether conduct is because of race as in direct discrimination. What is needed is a link between the treatment and the protected characteristic, though comparisons with how others were or would have been treated may still be instructive. In assessing whether it was related to race, the form of the conduct in question is more important than why the relevant Respondent engaged in it or even how either party perceived it.[128]The question of whether the relevant Respondent had either of the prohibited purposes – to violate the Claimant’s dignity or create the requisite environment – requires consideration of their mental processes, and thus the drawing of inferences from the evidence before us. As to whether the conduct had the requisite effect, there are clearly subjective considerations – the Claimant’s perception of the impact on him (he must actually have felt or perceived the alleged impact) – but also objective considerations including whether it was reasonable for it to have the effect on this particular Claimant, the purpose of the conduct, and all the surrounding context. That much is clear from section 26 and was confirmed by the EAT in Richmond Pharmacology Ltd v Dhaliwal [2009] ICR 724. The words of section 26(1)(b) must be carefully considered; conduct which is trivial or transitory is unlikely to be sufficient. Mr. Justice Underhill, as he then was, said in that case: “A Respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That … creates an objective standard … whether it was reasonable for a Claimant to have felt her dignity to be violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt … …We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase…”.[129]It is for the Claimant to establish the necessary facts which go to satisfying the first stage of the burden of proof. If he does, then it is plain that the relevant Respondent can have harassed him even if it was not its/his purpose to do so, though if something was done innocently that may be relevant to the question of reasonableness under section 26(4)(c). Violating and intimidating are strong words, which will usually require evidence of serious and marked effects. An environment can be created by a one-off comment, but the effects must be lasting. Who makes the comments, and whether others hear, can be relevant, as can whether an employee complained, though it must be recognised that is not always easy to do so. Where there are several instances of alleged harassment, the Tribunal can take a cumulative approach in determining whether the statutory test is met. Victimisation[130]Section 39(4) of the Act says that: “An employer(a) (A) must not victimise an employee of A’s (B): …(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; (d) by subjecting B to any other detriment”.[131]Section 27 defines victimisation as follows: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because - //(a) B does a protected act, or //(b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act - //(a) bringing proceedings under this Act; //(b) giving evidence or information in connection with proceedings under this Act; //(c) doing any other 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”.[132]We need say nothing further on the question of what constitutes a protected act as the Respondents agreed that what the Claimant relied on would be a protected act if we found it happened.[133]No comparator is required for the purposes of a victimisation complaint, but the protected act must be the reason or part of the reason why the Claimant was treated as he was – Greater Manchester Police v Bailey [2017] EWCA Civ. 425. Again, this requires consideration of the mental processes of the decisionmakers and again the protected act or belief that the Claimant may do a protected act need not be the primary reason for the act or omission in question, though it must be more than a trivial influence on that decision. The Court of Appeal in Page v Lord Chancellor [2021] ICR 912 referred to the principle that there is no victimisation if the reason for the treatment is not the protected act but some feature of it that could properly be treated as separable from it. It said that whilst it is important that the protection provided by the victimisation provisions in the Act are not undermined, the circumstances do not have to be exceptional for that principle to apply. Tribunals can recognise those features which are properly separable from the making of the complaint or other protected act. Time limits[134]No time limit issues were said to arise from our conclusions below, and so we say nothing about the law on that. Analysis[135]We now turn to our conclusions. As is always the case, we considered the arguments presented to us which we considered most material to the issues, although that does not mean that we have disregarded the rest. Protected acts[136]In support of his case that we should accept that all of the protected acts took place as the Claimant says, Mr Ennis submitted that the Claimant was not averse to raising matters of concern to him, that he is alive to issues of race discrimination, and that on 12 December 2019 he said he was not feeling valued. We accepted all of that, but for the detailed reasons given in our findings of fact, we concluded that the Claimant did not do protected acts1 to 3 nor protected act 5. That leaves protected act 4 – what was recorded on the video taken on 8 April 2020 – which was of course agreed to have been said. Protected disclosures Disclosure 2 – vehicle windscreen, 12 December 2019[137]We considered this first for reasons which will become clear.[138]We have dealt with the background to this disclosure in our fact finding. The disclosure was essentially that it is illegal to drive with a cracked windscreen. The screenshot attached to the Claimant’s message to the First Respondent, which appears to have been pulled from a website, said that it can be considered as a motoring offence to drive with a damaged windscreen and that “this could potentially be fatal”. The Claimant went on to say he did not appreciate the position he was in, did not feel valued, and that it “would probably be best I cease rendering services after today until my health and wellbeing is given due consideration”.[139]The Respondents agreed that the Claimant thereby disclosed information, so the first question for us was whether he believed, that is subjectively, that what he disclosed was in the public interest.[140]We accepted we only had the Claimant’s witness evidence of the seriousness of the crack in the screen, but the Respondents could not counter his case on this point. He told the First Respondent that it needed replacing and it was replaced. We accepted therefore that he was not exaggerating the position when he said a replacement was needed, not least because there would have been no reason for him to do so; it was after all inconvenient for him to have to attend to it.[141]As for what the Claimant actually said to the First Respondent, the message indicated that his principal concern was for his own safety, for example referring to the position he found himself in, that he might get points on his licence, and “my health and wellbeing”. That said, case law is clear that the public interest does not have to be the sole motive in making the disclosure. Whilst his own interest was the predominant motive of his disclosure, we accepted what he says in his statement at paragraph 25, namely that he thought the First Respondent was neglecting “[his] health and safety and the wider public”. His reference in his message to UK law, and the attachment of a screenshot referring to the risk of accidents, implicitly supports what his statement says, namely that he was also concerned about the wider implications of driving the vehicle and thus believed that the disclosure was also in the public interest.[142]Was that a reasonable belief? It clearly was. The risk of driving a vehicle when one does not have a clear line of vision could reasonably be said to be in the public interest. There is no need for us to say any more about that.[143]Did the Claimant believe his disclosure tended to show that health and safety was being or may be endangered? It is evident from the message how strongly he felt about the issue, and so he certainly did have this belief, particularly regarding his own health and safety.[144]Was that belief reasonable? Again, the answer was yes, for the reasons we have already given.[145]The disclosure was therefore a qualifying disclosure. It was disclosed to the First Respondent as the Fourth Respondent’s Managing Director, and so was also a protected disclosure. Disclosure 1 – vehicle service, 28 November 2019[146]Our material findings of fact were that the Claimant communicated to the First Respondent that he believed the vehicle needed servicing, that he wanted it serviced, and that he told the First Respondent the vehicle may not be safe to drive. Again, the Respondents accepted that this was a disclosure of information.[147]Did the Claimant believe it was in the public interest? He may have been cross that he did not have a new vehicle as he clearly thought he had been promised, and he would certainly have had his own safety in mind, but as already noted the public interest does not have to have been his sole motive in making the disclosure. In considering Disclosure 2, we were satisfied that the Claimant had established he had the wider public interest in mind for the reasons we have given. We agreed with Mr Ennis that this is suggestive of a similar approach when the Claimant made Disclosure 1 a short time previously.[148]Was that belief that his disclosure was in the public interest reasonable? It was. We accepted that a car being serviced does not mean it is safe, and that the absence of a service does not mean it is not, but the Claimant is not, as far as we know, a motoring expert, and so when he reasonably concluded that there had been no service for 21 months and that the car had a substantial mileage, he could sensibly conclude that there was a potential question mark over the roadworthiness of the vehicle, which very obviously could reasonably be said to be in the public interest.[149]Did the Claimant believe that the information he disclosed about the service tended to show that health and safety was being or might be endangered? We saw no reason to conclude that he raised the point for any other reason. The Respondents seemed to suggest that he raised it to be difficult, perhaps because he was annoyed about not getting a brand-new vehicle. To that end they said that it was strange that the Claimant checked the log book. We disagree; not everyone would do so, but it was in our view entirely normal to do this on receipt of a second hand vehicle that was new to him. We concluded therefore that it was clear the Claimant believed what he said tended to show a potential danger to health and safety, and that this was reasonable. He may have been technically wrong about it, in that it may well have been the vehicle was in perfectly good order, but again, with its mileage, the apparent absence of a service for nearly two years, and again noting that the Claimant is not a motoring expert, this was a conclusion he could reasonably reach.[150]This was accordingly a qualifying disclosure and was also protected because it was sent to the First Respondent as Managing Director of the Fourth Respondent. Disclosures 3 to 6 – hotplate and vaporiser[151]We dealt with these four disclosures together, concerning as they did precisely the same issue. In doing so, we were careful to note what the disclosures were, namely that the equipment was not working and that the Claimant was unable to mount and read QC slides as a result. That is what the list of issues agreed with EJ Harding in August 2022 and with us at the start of this Hearing said. The disclosures were not said to be about use of a lighter and any safety concerns related to that.[152]Again, the Respondents agreed that these were disclosures of information. Again, therefore, the questions for us were whether the Claimant believed that what he disclosed was in the public interest and if so whether that belief was reasonable, and whether he believed that they tended to show that health and safety was being or may be endangered and whether that belief was reasonable.[153]Those are all separate questions, but we were able to answer them together. Whilst we accepted that the Claimant could not do his work correctly if he was unable to read slides, and whilst we accepted too the irrelevance to these questions of the Respondents’ assertion that the equipment has been working since, because it was the Claimant’s beliefs at the time of the disclosures that matters, we did not consider that the Claimant either believed that telling the First and Third Respondents the equipment was not working was in the public interest and tended to show a risk to health and safety, or at the very least that it was not reasonable to hold those beliefs. This was for two reasons: 153.1. Our conclusion that the Claimant had at no point been told to falsify slides and ignore the proper process for certification. 153.2. His experience as an analyst working in the industry for 15 years, which according to Korashi and similar cases it was proper to take into account.[154]In other words, the Claimant either did know (as his subsequent messages to the Respondents suggested), or ought to have known, that there was no risk to anyone’s safety arising from any defect in the equipment, and thus his disclosures were not in the public interest either, because he knew or should reasonably have known that the resolution to the issue was simply not to clear the slides if the equipment continued to fail.[155]Accordingly, we found that these were not qualifying, and thus not protected, disclosures. Disclosure 7 – falsifying QC readings[156]We found that it is likely the Claimant made this comment at the meeting on 8 April 2020. Given however our factual conclusions on the core issue of whether QC readings were deliberately or carelessly improperly recorded by the Respondents, the Claimant could not reasonably have had the belief that what he said on that occasion was in the public interest and tended to show that health and safety had been, was being or would be endangered, because on our findings of fact he was saying something he knew, or should reasonably have known (given his industry experience), was incorrect.[157]In summary, the Claimant made two protected disclosures, namely those regarding the vehicle. Detriment 1 – comment on 30 November 2019[158]The complaints about this matter could not succeed as we found that the comment was not made. Detriment 2 – comment on 12 December 2019[159]The complaints about this matter could not succeed either, as we found that the comment was not made. Detriment 3 – comment on 24 December 2019[160]The complaints about this matter could not succeed because we concluded that there was no comment that there may be losses of jobs. It may well be that the First Respondent said the job needed to be done, and that the client was important, but that cannot have been a detriment because we found that the First Respondent was not saying those things as a way of pushing the Claimant to clear slide readings regardless of whether it was correct to do so. To find that those comments – that the job needed to be done and the client was important – amounted to a detriment without that context would be plainly wrong. Detriment 4 – comment on 30 December 2019[161]The complaints about this matter could not succeed as we found that the comment was not made. Detriment 5 – exaggerating the Claimant’s mistakes at work on 11 March[162]The complaints about this matter could not succeed as we found that there was no exaggeration of mistakes in the Claimant’s work. Detriment 6 – sending the Claimant home on 11 March 2020[163]The complaints about this matter could not succeed either, as we found that the Claimant was asked to go home, not sent home. In any event, in the context of the discussion as we have found it to be, this was a benefit to the Claimant, and so did not amount to a detriment. Dismissal[164]The complaint that the dismissal was an act of victimisation could not succeed, as the only protected act the Claimant proved he did (protected act 4) came after he had been told he was dismissed. That left the question of the protected disclosures, and as Mr Ennis said, we had to apply two different tests.[165]Dealing with unfair dismissal first, which could only lie against the Fourth Respondent, the question was what was the reason or principal reason for the dismissal? We were able to consider the Fourth Respondent’s case on this point even though it was not represented, because of course the decision-maker was present to give evidence.[166]The decision in Kuzel says that as the Claimant was employed for less than two years, he had to establish that his protected disclosures were the Fourth Respondent’s reason or principal reason for dismissal, in order to found jurisdiction. The question, well established in law, is what facts operated on the mind of the First Respondent as the Fourth Respondent’s decision-maker when deciding to dismiss him. There can only be one reason or principal reason. The question for us therefore was whether Disclosures 1 and 2, or either of them, were the reason or principal reason for dismissal.[167]On the face of it, both protected disclosures are referred to in the dismissal letter, which said, “It is unfortunate also that on several occasions you have challenged the management policy on such matters as overtime payments and Health and Safety regarding your company provided vehicle, threatening to withdraw your services”. We will come back to that wording below in dealing with the detriment complaint. The First Respondent on the other hand says that the reason or principal reason was events of 7 March 2020.[168]The fact that the dismissal letter mentioned the protected disclosures, if it did, was not conclusive in answering this question, because it also referred to paperwork errors and to the events of 7 March 2020, with the reference to the disclosures in between. Whilst we accepted that the letter is a good guide to what was said to the Claimant at the meeting on 8 April 2020, we did not think that the order in which these issues were set out indicates what was the reason or principal reason. Indeed, that approach would have defeated the complaint of unfair dismissal, as the errors in the Claimant’s paperwork came first, which would make that the principal reason. How the letter, which Mr Calvert correctly described as clunky, was put together reflected the Respondents’ inexperience in such matters, and no more.[169]We have noted that the Claimant was not suspended, which he says shows that the First Respondent did not regard the events of 7 March 2020 as particularly serious, but as we have said, the Second Respondent (who allocated the work) did not know of the details of the issues on the days in question. These were fast moving events. The First Respondent knew of the parking ticket on 3 April but on our findings of fact may well not have known what the timing of the ticket revealed until the following week.[170]We agreed with the Claimant that the decision to dismiss him was taken before the meeting on 8 April, which again he says means his dismissal cannot have been because of the events of 7 March 2020. We did not agree with that submission. We found that the decision was taken by the First Respondent at some point between 3 and 7 April, by which time he knew of the issues of 7 March. The fact that there was a decision prior to the meeting is accordingly not conclusive on this question either way.[171]The fact that there was no detailed discussion at the meeting about the events of 7 March was also said by the Claimant to be evidence that they were not the reason or principal reason for dismissal, but as the video shows and as the First Respondent’s email to the Claimant of 10 April recounts, a detailed discussion was not possible given how the meeting unfolded. It is also true that the customer the Claimant was working for on 7 March was not spoken to, but the fact is that the Claimant’s certificate for the job spoke for itself and in any event, the First Respondent told the police the customer had gone into liquidation.[172]The Respondents say that the Covid lockdown, with its serious impact on many businesses, would have been an opportune to time to dismiss the Claimant if the company had wanted to remove him because of protected disclosures, but we agreed with Mr Ennis that this was not the case for the reason he gave – dismissing the Claimant then would have begged a number of questions given that he was not the shortest serving employee by that point.[173]We did note however the following: 173.1. By the time of the dismissal, quite some time had passed since the Claimant had made the disclosures. 173.2. Whilst they were mentioned in the letter, the language used was that the Claimant challenging management policy was unfortunate, which to our mind was indicative that these matters were not central to the First Respondent’s thinking. 173.3. The First Respondent’s response to the disclosures at the time they were made, which we found to be matter of fact. 173.4. The fact that no action was taken to dismiss the Claimant in the period following the disclosures, which was particularly notable given that Disclosure 2 was accompanied by the Claimant’s threat to withdraw his services. 173.5. Similarly, there was no indication, even as late as 11 March 2020, that the Respondents were looking to dismiss the Claimant when they raised clerical errors with him. 173.6. Whilst Mr Ennis said several times that the Respondents could not afford to lose the Claimant and so were biding their time until Mr Hatton was embedded in the business, he was the replacement for Kamil, and as we have already said, the reality is that the First Respondent did not want to lose the Claimant. He liked him.[174]We were clear therefore that the reason or principal reason for dismissal, in the absence of any action or indication to that end prior to the First Respondent receiving the parking ticket, was the events of 7 March 2020. His email to the Claimant on 10 April 2020 (page 557) very much emphasised the 7 March incident, as did the police statements given by the First and Second Respondents on or around 24 April. Those contemporaneous documents properly reflect the position, and in fact, the Claimant says himself that he was told this was the principal reason – see RS80.[175]The complaint of unfair dismissal was accordingly not well-founded.[176]It was agreed that the complaint related to the detriment of dismissal rested against the First Respondent only, as he was the decision maker, and not the Second Respondent. As noted above, it was accepted he could be liable for the detriment of dismissal following Osipov, and so no more need be said about that.[177]The test here is different to that for unfair dismissal. The question was whether Disclosures 1 and 2, or either of them, had a material influence on the First Respondent’s decision to dismiss the Claimant. The Claimant had to prove a prima facie case – that is what was said in Chatterjee – before the burden shifted to the First Respondent. If it did, and if we were not persuaded of his explanation, then we were entitled to draw an inference that the detriment was because of the disclosures, but could still draw an alternative inference that there was an innocent explanation and that the disclosures were not a material influence. Unlike with unfair dismissal, more than one factor can be a material influence. Material means more than trivial.[178]Of course, the key wording in the dismissal letter was this: “It is unfortunate also that on several occasions you have challenged the management policy on such matters as overtime payments and Health and Safety regarding your company provided vehicle, threatening to withdraw your services”. As we have said, this wording was sandwiched between the reference to poor paperwork and the events of 7 March 2020. Plainly, these words cannot have been a reference to the Claimant raising that he did not have a new car, nor to his raising the problem with the bumper as he did not raise either of those things as a health and safety issue. Most clearly, it was a reference to what the Claimant said on 12 December 2019 (Disclosure 2) because it referred to the comment that he made about withdrawing his services. We thought it clear enough that it was also a reference to Disclosure 1 because it said that he raised health and safety issues (plural) regarding the car on “several occasions” (again plural).[179]What the First Respondent meant by the Claimant having challenged management policy is not entirely clear, and we have already said that the Claimant would not have been dismissed on 8 April 2020 without the events of 7 March and that there was nothing untoward in the First Respondent’s dealings with the Claimant immediately after either disclosure. All of that said, the disclosures were clearly in the First Respondent’s mind sufficiently to mention them in the dismissal letter composed before the meeting on 8 April. Nor was he just reciting background, as Mr Calvert submitted, or the Claimant’s employment history or every issue the Respondents had experienced with him. He did not mention the hotplate issues for example. The reference to the disclosures was explicitly included in a part of the letter listing why the Claimant was dismissed. For these reasons, the Claimant clearly established a prima facie case that they were a material influence in the First Respondent’s decision.[180]Could the First Respondent discharge the burden on him under section 48(2) ERA, and show that the two disclosures were not a material, that is more than trivial, influence on his decision? He accepted in oral evidence that what he wrote was a factor in the dismissal (that is how he emphasised it). Of course, the disclosures being a factor does not of itself mean that they were a material (more than trivial) factor, and we also noted that his email to the Claimant of 10 April 2020 did not mention it. That said, having accepted that they were a factor in his decision, having provided no cogent explanation as to why the disclosures were explicitly referred to in the letter, and noting that he did not say for example (either in the letter or his oral evidence) that the Claimant had raised issues about the vehicle and that these had been dealt with, that is that they were water under the bridge, we found that the disclosures were a material – more than trivial – factor in the First Respondent’s decision.[181]There was no time limit issue with this complaint. The Claimant’s complaint that the First Respondent subjected him to a detriment by dismissing him was accordingly well-founded. Detriment 8 – use of the company vehicle and April’s pay[182]The Claimant says this was a protected disclosure detriment and victimisation, and the complaints were against the First and Fourth Respondents.[183]Our key findings of fact were that the First Respondent did change his mind about the use of the vehicle, but the Claimant did not establish that there was also a change of mind about his pay, given the ambiguity of what we have found was said about that.[184]In respect of the change of mind about the vehicle, for both complaints – of protected disclosure detriment and victimisation – the Claimant bore the initial burden of proof. In respect of protected disclosure detriment, the question was whether either proven protected disclosure had a material influence on the change of mind, and for victimisation, whether there were facts from which we could conclude that protected act 4 was more than a trivial influence on the[185]The First Respondent’s change of mind was plainly a detriment, given that on its face it left the Claimant having to consider alternative means of transport to get home. The Respondents did not contest that. We were clear however that we could go straight to the reason why this happened, as the case law says we can where the position is clear. The transcript of the video shows very clearly on pages S.114 to 115, (if, for clarity, one ignores the Claimant’s interruptions), that what the First Respondent explicitly said was, “I have changed my mind because you are not giving me, you’re not giving me the microscope or the laptop back”. We were entirely satisfied that this was not in any sense the First Respondent performing for the camera. He was, and could legitimately be, very concerned to retrieve this equipment, and he clearly thought the Claimant was refusing to hand it over.[186]Putting the matter in a different way, we did not think that the Claimant made out a prima facie case that the disclosures from December 2019 were in the First Respondent’s mind at this point. They were in his mind when preparing the dismissal letter beforehand, but it is highly unlikely that in making this comment in a difficult and fast-moving meeting, he had those issues in his mind at all. The reasons for his change of mind were as we have just set out.[187]As for victimisation, apart from the fact that the Claimant had not long before this comment said there was a race thing going on, there was nothing from which we could conclude that this was in First Respondent’s mind either. Again, in a fast-moving situation it is highly unlikely that it was, and the law is clear that the fact of a protected act and a detriment is not sufficient to prove a prima facie case of victimisation. For completeness, we repeat that even if there was a prima facie case because of the close proximity in time between the protected act and the detriment, we were clear that the First Respondent had shown that this was nothing to do with his change of mind, which was solely based on his concerns about the equipment.[188]However we analysed them, these complaints failed. Detriment 9 – calling the police[189]Again, these complaints could only lie against the First and Fourth Respondents, given that the former made the call. The complaints were of harassment, victimisation, and protected disclosure detriment. Again, this was plainly a detriment to the Claimant, and the Respondents did not contest that.[190]Putting aside harassment for the moment, the question was whether he had made a prima facie case that Disclosures 1 and 2 (or either of them,) or his protected act, were a more than trivial influence on the First Respondent’s[191]For the same reasons as we gave in relation to detriment 8, we were not satisfied that he had. There appeared to us to be no connection between those things and this decision, other than the proximity of time in relation to the protected act. As we have said, the meeting took an unexpected turn, and things were happening quickly. It could reasonably be inferred that in this context, the First Respondent acted somewhat in the heat of the moment, doubtless having become concerned and upset at how the Claimant had behaved. In that context, it seemed to us highly unlikely that either the disclosures (notwithstanding that they were in the already drafted dismissal letter) or the protected act operated on his mind consciously or unconsciously in the moment.[192]In any event, we concluded that again we could make clear findings as to the reason why the First Respondent took this step. In short, he wanted his equipment back. In particular he wanted the laptop back, to preserve company confidential information, because given that the Claimant told us he went to the pound the next day in part to “preserve evidence”, the First Respondent is very likely correct in saying that the Claimant had threatened to download company information from the laptop at the meeting. Retrieving the laptop was the clear reason why the police were called and the vehicle reported as stolen. Whether analysed as the Claimant not establishing facts from which we could conclude that victimisation or protected disclosure detriment had taken place, or as the First Respondent providing a cogent explanation that was nothing to do with either a protected act or disclosure, these complaints failed.[193]As for harassment: 193.1. This was clearly unwanted conduct. 193.2. Given what we have just said about what was in the First Respondent’s mind, it did not have the purpose of violating the Claimant’s dignity or creating the requisite environment. We did not need to resolve the question of whether the conduct could have had the effect of creating the requisite environment given that the Claimant had by this point been dismissed and would not be returning to the workplace, because we can readily find that what transpired with the police violated his dignity, particularly in the way in which he describes his being apprehended. That was the effect of the conduct, whether or not the First Respondent intended it. 193.3. The key question however was whether it was related to race. The act of calling the police was not inherently so related; what the Claimant says is that the First Respondent stereotyped him. 193.4. We have made clear what the First Respondent’s reasons were and they were not related to race. Harassment is of course different to direct discrimination, though how comparators were treated can still be instructive, and the Claimant highlighted how Kamil was treated. The fact is however that Kamil’s situation was very different from the Claimant’s – the reason for his departure was different, there was no suggestion he had a spectacular falling out with the Respondents on the day of his departure, and nor was it said he threatened to download company information. Looking at the contextual evidence available to us confirmed our conclusion on this point. The Claimant never noted or complained of race discrimination until the very end of his employment, the First Respondent employed him knowing he was Black (because he had been impressed with him at the previous interview), he has since employed another Black employee and, as we have said, he was very positive about the Claimant overall including in this Hearing. He also paid him the highest salary of any analyst. All of that very much indicated the absence of any influence of race.[194]These complaints failed. The Claimant did not establish a prima facie case linking the unwanted conduct to race. Alternatively, there was a cogent explanation that satisfied us that race was nothing to do with it. Detriment 10 – deductions from pay, April 2020[195]These complaints, again of harassment, victimisation and protected disclosure detriment, with the addition of direct discrimination, related to the deductions from the Claimant’s final pay, and again rested against the First and Fourth Respondents.[196]There were three parts to the deductions: 196.1. The parking fine. 196.2. The costs related to the car, as to which we thought it irrelevant whether the First Respondent calling the police led to the car being damaged and impounded. The question was what was in his mind in making the deduction or, for harassment, whether the deduction was related to race. 196.3. Changing the office lock – the issue here was why the First Respondent made the deduction, not why he changed the lock, as the latter was part of the circumstances or context leading up to the alleged act, which was insufficient to found a complaint in relation to the deduction itself.[197]Again, the Respondents did not contest that the deductions were a detriment.[198]As just noted, this complaint introduced direct discrimination, in relation to which the crucial question was the reason why the Claimant was treated in this way, in the same way as for victimisation and protected disclosure detriment. We also had to consider whether the First Respondent would have treated someone in materially similar circumstances more favourably in this respect than he treated the Claimant.[199]We were given no evidence by the Claimant suggestive of how he says a comparator would have been treated. It seemed highly likely to us that anyone in materially the same circumstances – someone who had incurred a parking fine, who had caused (certainly in the First Respondent’s view) the company to incur costs relating to the car, and had threatened to download company information and later sought to recover equipment from the vehicle while it was in the pound – would have been treated in the same way. Moreover, we were not taken to any evidence which provided any indication that there was a racial element to the First Respondent’s actions. We refer again to the general contextual evidence mentioned in paragraph 193.4 above. That also dealt with the harassment complaint, because whilst the conduct was unwanted, it was not related to race. We did not need to go on to consider the remaining parts of the section 26 test. The Claimant did not make out a prima facie case of direct discrimination or harassment.[200]Further, in respect of each of the complaints of direct discrimination, victimisation and protected disclosure detriment, yet again we were able to go to the reason why, which put very simply was that the First Respondent wanted his money back. Even if we were to take into account the reason why he changed the lock in the first place, this was clear, namely what happened at the meeting, and specifically the Claimant’s threat to download company information from the laptop and what he said on his visit to the pound, certainly as the First Respondent was concerned.[201]These complaints also failed. We were not satisfied that the Claimant had established facts from which we could conclude that a protected act or disclosure was the reason for the treatment in question, and even if he had, we were satisfied that there was an explanation for it which was nothing to do with either. Detriment 11 – CSCS Card[202]This complaint was against the First and Fourth Respondents and the complaints were of victimisation and protected disclosure detriment.[203]The facts can be simply stated: there was a promise to pay for the card, the First Respondent questioned the amount, and he wanted what he regarded as proper evidence of payment, such as an invoice.[204]There does not seem to have been a refusal to make the payment as such – certainly we were not taken to a document showing that – but it is correct that the Claimant was not reimbursed and it is not disputed that this was a detriment. This cannot have been because of the protected act, because the First Respondent had already failed to pay the sum for some months before that act was done. As to protected disclosure detriment, the reason for the First Respondent’s inaction was clear. It had nothing to do with the disclosures in December 2019. The reason was that he thought, rightly or wrongly, that he did not have sufficient information to make the payment.[205]These complaints also failed. Again, we were not satisfied that the Claimant had established facts from which we could conclude that a protected act or disclosure was the reason for the treatment in question, and even if he had, we were satisfied that there was an explanation for it which was nothing to do with either. Detriment 12 – doctoring the Claimant’s QC paperwork[206]The complaints about this matter could not succeed as we found that the Claimant’s QC slides paperwork was not doctored. Summary[207]The one successful complaint was that against the First Respondent, in respect of the protected disclosure detriment of dismissal. The remaining complaints did not succeed and were dismissed. Signed by: JUDGMENT having been sent to the parties on 9 October 2024, and written reasons having been requested by the First, Second and Third Respondents on the same date, in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided.[1]The question of remedy arose following our conclusion at the Liability Hearing in August 2024 that the First Respondent had subjected the Claimant to a detriment, because he made protected disclosures, by dismissing him with effect from 8 April 2020. All other complaints against all Respondents were dismissed. Issues[2]It was agreed by the parties that the issues the Tribunal had to consider were as follows: 2.1. What financial losses did the detrimental treatment of dismissal by the First Respondent cause the Claimant? 2.2. What compensation is it just and equitable to award to him in all the circumstances, having regard to that detriment, and to any loss which is attributable to it (section 49(2) Employment Rights Act 1996 (“ERA”))? It was agreed that this included looking at the question of whether the Claimant would have been dismissed, when and the likelihood of that, in the absence of his protected disclosures being taken into account by the First Respondent when dismissing him. 2.3. Had the Claimant taken reasonable steps to replace his lost earnings, for example by looking for another job? 2.4. If not, for what period of loss should the Claimant be compensated? 2.5. What injury to feelings has the detrimental treatment caused the Claimant and how much compensation should be awarded for that? 2.6. What personal injury did the detrimental treatment cause him and how much compensation should be awarded for that? 2.7. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? It was agreed that it did and that the First Respondent could in principle be liable for any increase in any award – see further our summary of the law below. 2.8. Did the Fourth Respondent or the Claimant unreasonably fail to comply with the Code? 2.9. If so, was it just and equitable to increase or decrease any award payable to the Claimant? 2.10. By what proportion, up to 25%? 2.11. Did the Claimant cause or contribute to the detrimental treatment by his own actions and if so, would it be just and equitable to reduce the Claimant’s compensation? By what proportion? 2.12. The First Respondent did not assert that the relevant protected disclosures were not made in good faith. Hearing[3]The Claimant gave oral evidence. The First Respondent did not wish to do so. There were no witness statements additional to those used at the Liability Hearing. A short bundle supplementary to that used at the Liability Hearing was agreed between the parties. References below to page numbers relate to the main bundle used for the Liability Hearing unless stated otherwise, and alphanumeric references relate to witness statements, for example WB29 is paragraph 29 of the First Respondent’s statement and RS80 is paragraph 80 of the Claimant’s statement. Facts Liability decision[4]The factual findings on liability most pertinent to the above issues were, in our estimation, as follows: 4.1. None of the Respondents had dismissed someone before. 4.2. The Claimant was invited to a meeting which took place on 8 April 2020, at which he was dismissed; he was not told beforehand what it was about, so he did not know that it was a meeting at which he might be dismissed nor what he might be dismissed for. 4.3. As the Claimant pointed out in evidence at this Hearing, he was not given the right to be accompanied to the meeting, nor given any right of appeal against dismissal. 4.4. The First Respondent said that not to reach the conclusion that the Claimant had committed an act of gross misconduct by his actions on 7 March 2020 (for the relevant details see our Reasons for the Liability Judgment) would have made the Fourth Respondent liable to regulatory action, that (WB29) analysts have been prosecuted for such matters and that if the Fourth Respondent had knowingly allowed this to continue, its accreditation could have been withdrawn, leading to it ceasing trading. 4.5. The Claimant accepted his actions would have been gross misconduct if the Respondents were completing documentation accurately, but as they were not, it was not conduct of that description. We found at the Liability Hearing that the Respondents did not either promote or accept the doctoring of QC slide records as the Claimant asserted. We accepted entirely the potentially serious consequences of wrongly recording data on certificates that the First Respondent outlined.[5]In terms of our conclusions, we had to apply two different tests to the issue of the Claimant’s dismissal.[6]Dealing with unfair dismissal first, a complaint which could only lie against the Fourth Respondent, the question was what was the reason or principal reason for the dismissal? We noted amongst other things: 6.1. Quite some time had passed since the Claimant made the protected disclosures by the time the First Respondent dismissed him. 6.2. Whilst the disclosures were mentioned in the dismissal letter, the language used was that the Claimant challenging management policy was “unfortunate”, which we found to be indicative that the disclosures were not central to the First Respondent’s thinking. 6.3. The First Respondent’s response to the protected disclosures at the time they were made was, we found, matter of fact. 6.4. The fact that no action was taken to dismiss the Claimant in the period following the disclosures was notable, particularly given that the second protected disclosure was accompanied by the Claimant’s threat to withdraw his services. 6.5. Similarly, there was no indication, even as late as 11 March 2020, that the Respondents were looking to dismiss the Claimant when they raised clerical errors with him. 6.6. Whilst Mr Ennis said several times that the Respondents could not afford to lose the Claimant and so were biding their time until a colleague called Jack Hatton was embedded in the business, Mr Hatton was the replacement for someone called Kamil, and as we found, the reality is that the First Respondent did not want to lose the Claimant. He liked him.[7]We were clear therefore that the reason or principal reason for dismissal, in the absence of any action to that end prior to the First Respondent receiving the parking ticket (again see the Reasons for the Liability Judgment for details), was the events of 7 March 2020. The First Respondent’s email to the Claimant on 10 April 2020 (page 557) very much emphasised those events, as did the police statements given by the First and Second Respondents on or around 24 April 2020. Those contemporaneous documents properly reflected the position in our view, and furthermore, the Claimant told us himself that he was informed by the First and Second Respondents that this was the principal reason for dismissal – see RS80.[8]As to the protected disclosure detriment complaint relating to dismissal, the parties agreed that this rested against the First Respondent only. The question was whether the protected disclosures, or either of them, had a material influence on his decision to dismiss the Claimant.[9]As we set out in the Liability Judgment, the key wording in the dismissal letter was this: “It is unfortunate also that on several occasions you have challenged the management policy on such matters as overtime payments and Health and Safety regarding your company provided vehicle, threatening to withdraw your services”. The protected disclosures being a factor did not of itself mean that they were a material factor, and we also noted that the First Respondent’s email to the Claimant of 10 April 2020 did not mention it. That said, the letter did not say that the Claimant had raised issues about the vehicle and that these had been dealt with, i.e. as water under the bridge. The First Respondent provided no cogent explanation as to why the protected disclosures were explicitly referred to in the letter. For these reasons, we found that they were a material – more than trivial – factor in his decision. Other facts[10]It is agreed that the Claimant earned £476.92 net per week with the Fourth Respondent, and had a pension contribution of £17.88 per week. As to his work since he left that employment, it will be clear from our conclusions that we do not need to record this in detail. We note only that: 10.1. He gives credit in his Schedule of Loss for receipt of Child Tax Credits, but says he did not work for around 12 to 13 months after his dismissal. He did not claim State benefits because he said he wanted to find work. Mr Calvert asserted that the Claimant worked for cash in hand during this period, but there was no evidence of that. The Claimant occasionally accompanying his partner to a Sunday market to sell bric-a-brac was not such evidence. On the other hand, we were unconvinced by the Claimant’s evidence that he had a 12-month gap in his employment some years before, given what is said in his CV at page 155 where no such gap was recorded. 10.2. It can be seen from pages 803 to 804 that the Claimant made multiple job applications, between 20 and 30 in total, from 12 June 2020 to May 2021, several to asbestos businesses. 10.3. The Claimant says the asbestos industry is a close-knit community, which we can accept. He said he told agencies or potential employers about the issues he had with QC slides whilst working for the Fourth Respondent, and that he had been unfairly dismissed and was going to the Tribunal, and that as a result of this job applications were not followed up. We found it difficult to believe the Claimant would have given all of that information to prospective employers as there would have been no reason to disclose all of that information on the face of it, though we reached that conclusion only on the balance of probabilities, as it might in part have been the kind of discussion that emerged from questions about why he had left his last job. Whatever was said to potential employers, it is clear that the Claimant has been unable to get work in the industry despite trying to do so. 10.4. He got a temporary job with Royal Mail from 17 May to 9 October 2021, earning £280 per week. 10.5. He was then self-employed from 25 October 2021 to 21 January 2022 as a courier. He thought he might earn £500 per week, but earned very little overall in that period. 10.6. From 16 May 2022 to date, in two different jobs, he has worked as a bus driver. 10.7. His Schedule of Loss details costs from the period of self-employment, which the Respondents accept were incurred, and job-seeking expenses which they do not.[11]The Claimant told us that by the dismissal date, he was coming to “breaking point” with the Respondents and was looking to leave, but would only have done so when he could secure a new role, which we accept given his family responsibilities. He also said that appealing against dismissal to the First Respondent would not have been “beneficial” as he would have been asking the First Respondent to overturn his own decision.[12]The only medical evidence in the bundle we were taken to was: 12.1. At page 916, a call with the Claimant’s GP on 17 March 2022 referring to him having low mood. 12.2. At pages 917 to 919, prescriptions for medication from June to September 2022, which the Claimant ceased taking as it did not suit him.[13]In his Schedule of Loss, the Claimant says he was dismissed in humiliating circumstances with no prior warning and with his protected disclosures being a contributory factor. The manner in which he was treated, he says, caused him considerable distress and resulted in anxiety about his future, and in particular about his ability to work in the industry again.[14]At RS125, the only paragraph in his statement that dealt with the impact of the treatment he said he experienced, he says, “the discrimination, victimisation and harassment I have been subjected to by the Respondents and their poor treatment and unwanted conduct towards me, … has had an adverse effect on my mental state … and overall wellbeing. My confidence has been affected, I experience interrupted sleep and suffer from low moods”.[15]At pages 766 to 767, an earlier version of the Schedule of Loss, the Claimant referred to the impact of discrimination because of his race, though he also referred to “nefarious unwanted conduct” generally. This was specifically in the context of how he says his reputation had been affected by the Respondents’ actions towards him, the comments being placed under the heading “Future Loss of Earnings”.[16]When I asked him how the dismissal impacted him, the Claimant said it caused disruption, impacting his financial situation. He also said his confidence was affected, the dismissal led to family arguments and he felt less of a man in not being able to provide in the same way as he had before. He said he was robbed of his position and no longer able to use his qualifications, which he had worked hard for. Whilst there are some issues with the Claimant’s evidence as we have highlighted above and more extensively in the Reasons for the Liability Judgment, on this matter we accepted what he says, not least because of its inherent plausibility for someone in the position he found himself in. Law[17]Section 49 ERA provides, relevantly: “(1) Where an employment tribunal finds a complaint under section … 48(1A) wellfounded, the tribunal -(a) shall make a declaration to that effect, and(b) may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates”. (2) … the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to— (a) the infringement to which the complaint relates, and (b) any loss which is attributable to the act, or failure to act, which infringed the complainant's right”. Mitigation[18]For reasons that will be clear from our conclusions, we do not need to say anything about the law related to mitigation of loss. Polkey[19]By analogy to both discrimination cases and unfair dismissal cases, we are satisfied that considering what compensation it is just and equitable to award to the Claimant means that there was a duty on the Tribunal to consider whether compensation for financial loss should be reduced because even in the absence of protected disclosure detriment, dismissal would have taken place in any event. It would not be just and equitable to award compensation for financial loss in the normal way if it can be shown that the Claimant would have been dismissed in any event, or there is a chance he would.[20]The Tribunal must therefore have regard to the cases of Polkey v A E Dayton Services Limited [1988] ICR 142 and Abbey National Plc v Chagger [2010] ICR 397 in which the Court of Appeal held that the fact that the protected characteristic – as it was in that case – was a significant factor in a dismissal decision is sufficient to establish liability for that loss, but does not assist in determining the measure of the loss. It is therefore necessary for us to ask what would have occurred had there been no protected disclosure detriment. If there was a chance that dismissal would have occurred in any event, even if there had been no such detriment, then in the normal way that had to be factored into our calculation of financial loss.[21]As has been made clear in cases such as Software 2000 Ltd v Andrews [2007] ICR 825, this entails asking whether and if so for how long the Claimant would have been employed but for the protected disclosure being taken into account in dismissing him, or applying a percentage deduction to reflect the possibility that the Claimant would have been dismissed. Either way, the Tribunal’s assessment must be based on the evidence presented to it. As the Employment Appeal Tribunal (“EAT”) put it in Andrews, the task is for the Tribunal to identify and consider any evidence which it can with some confidence deploy to predict what would have happened had there been no protected disclosure detriment. Injury to feelings and personal injury[22]We applied the following principles in respect of compensation for injury to feelings, by analogy to cases under the Equality Act 2010, in accordance with the decision of the EAT in Virgo Fidelis Senior School v Boyle [2004] ICR 1210, in which it said that detriment suffered by whistleblowers should normally be regarded by Tribunals as a very serious breach of discrimination legislation: 22 .1. Given that the Claimant presented his Claim Form in July 2020, with reference of course to the decision in Vento v Chief Constable of West Yorkshire [2003] ICR 318 and subsequent Presidential Guidance, the lower band was £900 to £9,000 (for less serious cases) and the middle band £9,000 to £27,000 (for cases that do not merit an award in the upper band, which it was not argued this case did). 22.2. The burden was on the Claimant to establish injury to feelings. 22.3. As with much of the exercise of assessing compensation, determining an award for injury to feelings is not an exact science. What is clear is that any award should be compensatory for the Claimant and not punitive of the Respondent. 22 .4. Our focus was therefore on the effect of the proven detriment on the Claimant, taking into account in particular the degree of hurt and upset caused to him by it, which was of course assessed in accordance with the evidence he produced to the Tribunal. 22 .5. Awards for injury to feelings should bear relation to awards given in personal injury cases and to the value of the amount in everyday life.[23]The Claimant also said he suffered personal injury. We noted the following key principles in relation to compensation for such injuries in the employment tribunal context: 23.1. It must be assessed separately to compensation for injury to feelings. 23.2. The burden was on the Claimant to show that the detriment caused the harm he says he has suffered. 23.3. The question is whether the harm naturally and directly arose from the detriment, not one of reasonable foreseeability. 23.4. JSB Guidelines apply, there being categories of severe, moderately severe and moderate injury. 23.5. Medical evidence is not essential but where there are questions of causation, it can be important. ACAS Code uplift[24]Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) applies to cases brought under section 48 of the ERA. The EAT’s decision in SPI Spirits (UK) Ltd and Yuri Shefler v Vladislav Zabelin [2023] EAT 147, very helpfully highlighted by Mr Ennis, confirms that uplifts in awards can be applied against individual respondents even though they are not the employer, provided of course that the requirements of the section are otherwise satisfied.[25]The questions which that section requires tribunals to consider are reflected in the list of issues above.[26]Relevantly, the ACAS Code of Practice on Disciplinary and Grievance Procedures (2015) (“the Code”) provides that an employer handling disciplinary issues in the workplace should establish the facts of the case, inform the employee of the problem, hold a meeting to discuss the problem, allow the employee to be accompanied, decide on appropriate action and provide an opportunity to appeal. Deduction for conduct[27]For reasons that will be clear from our conclusions below, we do not need to say anything about section 49(5) ERA, except to record the wording of that subsection, which says, “Where the tribunal finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding”. Analysis Polkey[28]It was appropriate to begin with this issue, as if we accepted the First Respondent’s submissions that it was certain the Claimant would have been dismissed on the same date even if the protected disclosures had been disregarded, questions of mitigation and the Claimant’s contributory conduct would become irrelevant. The fundamental question was what the First Respondent would have done in making his decision about the Claimant’s employment before the meeting on 8 April 2020, if he had put the protected disclosures out of account.[29]Mr Calvert submitted as follows: 29.1. The Claimant had no right not to be unfairly dismissed. 29.2. The First Respondent believed, and the Claimant agreed, that what the Claimant had done on 7 March 2020 was gross misconduct. The Tribunal found that the principal reason for dismissal was the Claimant’s conduct. 29.3. What the Claimant did was a criminal offence. We cannot say whether it was, but the First Respondent was clearly and genuinely concerned about liability to the regulator, with a risk to the Fourth Respondent’s accreditation. We accepted his evidence at the Liability Hearing on those points.[30]We found that there was no practice or acceptance of doctoring certification of work done for the Fourth Respondent, and thus we agreed with Mr Calvert’s further submission that the Claimant was not under pressure from the Respondents to falsify documentation on 7 March 2020.[31]In view of all of the above, Mr Calvert said it is 100% likely the Claimant would have been dismissed on 8 April 2020, or else so overwhelmingly likely that any compensation should be de minimis.[32]Mr Ennis said: 32.1. Section 49 ERA says we should award such compensation as would be just and equitable. 32.2. In addition to the question of what the First Respondent would have done had the protected disclosures fallen out of account, we have to take account of what would have happened if the Respondents had acted fairly, taking account of the ACAS Code. 32.3. Accordingly, if the Claimant had been permitted to give a full explanation of his conduct, it cannot be said he would definitely have been dismissed, because of the possibility that fairness would have meant getting an external party to hear an appeal. 32.4. He nevertheless accepted that there was a high likelihood that the Claimant would in any event have been dismissed.[33]We were not persuaded by Mr Ennis’ argument that the just and equitable measure of compensation means that we should take account of what would have happened if the Respondents had acted fairly, given that in law they were under no obligation to do so, provided of course they did not discriminate against the Claimant, including on the basis of his status as a whistleblower.[34]Secondly and in any event, even if the meeting on 8 April 2020 had been better conducted, and even if the Claimant had been referred for an appeal to an external third party (which the Respondents were under no obligation to do both because of the Claimant’s length of service and as a matter of general principle), the outcome would in our judgment have, of a certainty, been the same. We say this because: 34.1. We found at the Liability Hearing that the First Respondent had not reacted adversely at the time the protected disclosures were made and would not have dismissed the Claimant on that basis alone. Nor had the Respondents made plans to dismiss the Claimant because of paperwork issues or because of his altercation with a client in December 2019, nor indeed when he threatened to withdraw his services. As stated above, the First Respondent did not want to lose the Claimant. All of this underlines how seriously the First Respondent viewed the Claimant’s conduct on 7 March 2020, and shows the Tribunal what would have happened if the protected disclosures had not been taken into account. 34.2. The Claimant had no explanation for his conduct, except that the Respondents were all falsifying documents, which we have found was not the case. It is certain that, had he heard something along the lines of the explanation the Claimant gave to us at the Liability Hearing, the First Respondent would have taken the same decision, knowing that the Claimant regarded the certification as not worth the paper it was written on. 34.3. The Claimant was in his probation period and had much less than two years’ employment. There were other concerns about his employment, such as completion of paperwork. 34.4. Above all, the First Respondent would not have taken any risk with the Fourth Respondent’s accreditation. He simply could not afford to do so.[35]We remain of the view that it was right to hear any oral evidence before reaching our conclusions on this issue, but having done so, it was plain that we did not have to consider mitigation issues or the question of contributory conduct related to financial loss, as it was not just and equitable to award the Claimant any compensation for loss of earnings for the reasons we have given. We add for completeness, reflecting on a further point made by Mr Ennis, that the fact the Claimant was dismissed in part because of a protected disclosure could be compensated by an award for injury to feelings, to ensure that the Tribunal awarded what is just and equitable. It is to that we now turn. Injury to feelings[36]Our starting point was to adopt the same approach as with cases under the Equality Act, as Virgo Fidelis confirms we should. The parties did not dispute that, though Mr Calvert made two main submissions about this award.[37]The first was that the Claimant’s injury to feelings were really because he believed he had been discriminated against because of his race, not because he had been subjected to a protected disclosure detriment. There are two things that can be said about that submission: 37.1. We were perfectly able to reach a decision which assessed the Claimant’s injured feelings arising from his dismissal only, recognising that his other complaints had failed. 37.2. The Claimant did not pursue before us any complaint that his dismissal was because of his race. The dismissal was challenged only on the basis that it was said to be an act of victimisation and protected disclosure detriment. Mr Calvert said nothing about the Claimant’s injury to feelings related to perceived victimisation.[38]Mr Calvert’s second submission was that any award for injury to feelings should be reduced on the basis of the Claimant’s conduct, which as he rightly points out was the principal reason for his dismissal. What he said was that the Claimant was to blame for his injured feelings, or mostly to blame, and so should not be compensated for them.[39]It was agreed that there appears to be no case law on this precise point, but whilst taking into account that section 49(5) of the ERA expressly requires Tribunals to consider a complainant’s conduct in deciding compensation, the following points are noteworthy: 39.1. The wording of section 49(5) mirrors section 123(6) of the ERA which, in the unfair dismissal context, provides for reductions to the compensatory award, which as is well known is intended to compensate for financial loss, there being no power to make an award for injury to feelings in that context. This suggests that section 49(5) is intended to achieve the same outcome, namely a reduction in compensation for financial loss in appropriate circumstances. 39.2. Virgo Fidelis is clear authority (decided after section 49(5) came into effect and thus, it can be assumed, with it in mind), that when making an award for injury to feelings in the protected disclosure context the same approach should be taken as under the Equality Act, and it is agreed there can be no contributory conduct deduction to injury to feelings awards in that context. If two employees fight at work, or steal from their employer, both bearing equal responsibility, but the Black employee is dismissed and the White employee is not, assuming a tribunal found that the former’s race was a more than trivial influence on the decision to dismiss him, it would sit ill in the mouth of the former employer to say that he should not be compensated for injury to feelings resulting from the discriminatory dismissal, even though he would not have been dismissed in the absence of his misconduct. 39.3. Mr Calvert’s submission is broadly analogous to the suggestion that compensation for injury to feelings should be reduced on a Polkey/Chagger basis, which was rejected by the Court of Appeal in O’Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615.[40]Accordingly, we assessed the injury to feelings award on ordinary principles.[41]The Claimant’s oral evidence was basically consistent with what he said in his statement (albeit briefly) and in his Schedule of Loss. As noted above, we accepted that oral evidence and thus did not accept Mr Calvert’s submission that there was no evidence of injury to feelings arising from the dismissal. The impacts on the Claimant can be summarised as follows: 41.1. He was worried about his financial situation. 41.2. The dismissal affected his confidence. 41.3. He felt “less of a man”. 41.4. He also felt robbed of his career.[42]The Claimant was able – possibly out of necessity – to look for jobs immediately after dismissal, and in a few months was able to take the bold step of setting up his own business. His evidence was also striking in that when asked about the impact of the dismissal, he focused first on the practical impacts, then on how it made him feel, though we did not ignore his reflections about feeling less of a man and the impact on his confidence. Our point is that he can properly be regarded as having had a fairly resilient attitude to what took place, though we note also the impact on his feelings of apparently no longer being able to work in the industry he had trained hard to enter.[43]The relevant bands are as stated above. Mr Ennis suggested the award should be in the middle band. We accept that dismissal is usually seen as serious for claimants and in any event agreed with Mr Ennis that this was a middle band case given all of the above. In our view however the £20,000 contended for by the Claimant was too high given the factors we have outlined. In our judgment, balancing those various factors, the appropriate award was in the lower half of the middle band, that is lower than £18,000. The award we decided upon was thus £15,000.[44]We then considered whether to increase or decrease that award under section 207A of the TULRCA. Did the Claimant unreasonably fail to comply with the ACAS Code by not appealing against his dismissal? This was a failure to comply with the Code, but it was not unreasonable because he could perfectly reasonably conclude that the same person who made the decision would not change his mind on appeal.[45]Did the employer – the Fourth Respondent – unreasonably fail to comply with the Code? Again, in our judgment, this had to be assessed on its own merits, notwithstanding the Claimant’s conduct which was the principal reason for dismissal. The Fourth Respondent’s failures were, on any assessment, wholesale – it gave no notice of the dismissal meeting, no indication of its concerns about the Claimant’s conduct, no warning of the possible consequences of his conduct, did not tell the Claimant of his right to be accompanied to the meeting, made the decision before the meeting took place, and it offered no appeal.[46]We were given no explanation as to why there were such wholesale failures, other than the inexperience of the Respondents in HR matters and the fact that the Fourth Respondent was a small employer. In our experience, many small employers, even those without dedicated HR functions and with no history of dealing with disciplinary matters, manage to comply with the Code in these basic respects, and so we did not find this to be a reasonable explanation for what happened. The failures were unreasonable.[47]The fact that they were also wholesale meant that in our view it was just and equitable to increase the award, the Claimant having been deprived of all the basic protections of the Code. We decided to increase it by 20%, discounting the maximum increase by 5% to take account of the Respondents’ inexperience and the fact that the Fourth Respondent was a small employer – that is the appropriate part of the analysis at which to reflect those matters. The injury to feelings award was therefore £18,000. Personal injury[48]We were able to deal with the Claimant’s additional claim for a personal injury award very briefly. He provided wholly insufficient evidence for his contention that the dismissal caused him psychological injury. The discussion with his GP to which we were referred, and the medication the Claimant took, fell more than 2 years after the dismissal. There was, in short, no evidence to suggest any connection between the two. No such award was made.[49]As detailed below, there were four costs applications, two from the Claimant (one was an application for a preparation time order (“PTO”)) and two from the first three Respondents. It was agreed that the issues for us to decide in relation to each were: 49.1. Were either of the provisions of rule 76 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”) set out below engaged? 49.2. If so, should we exercise our discretion to make a cost order or PTO? 49.3. If so, in what amount, in relation to which we may take account of the paying party’s ability to pay. Facts[50]Prior to the Liability Hearing which took place before us in August 2024: 50.1. A previous tribunal panel, chaired by then Employment Judge Jones (“the Jones Tribunal”) heard the Claimant’s case from 31 July to 4 August 2023. On two of those days the Claimant gave evidence and was questioned by the panel. 50.2. The case was heard in the absence of the Respondents. The absence of the Fourth Respondent was to be expected given its insolvency, but around a week before that Hearing was due to begin, and because of that insolvency, the first three Respondents lost the professional representation they had benefitted from in preparing for the case. They did not contact the Tribunal about this at all and simply did not attend the Hearing. 50.3. The Jones Tribunal found largely in the Claimant’s favour and awarded him compensation (against the First and Second Respondents) running to six figures. 50.4. On 28 September 2023, the First and Second Respondents applied for that Judgment to be revoked.[51]At a reconsideration Hearing on 22 March 2024, the Judgment was revoked. We note that the Jones Tribunal observed that: 51.1. The First Respondent believed, reasonably, that the previous advisers were advising all four Respondents, not just the Fourth Respondent. 51.2. Statements had been exchanged and a bundle agreed prior to the original Tribunal hearing. 51.3. The First Respondent “perhaps naively” believed he could get the representatives to change their minds. 51.4. It did not occur to him to seek a postponement or explain the issues to the Tribunal. 51.5. He said he had decided not to attend the Hearing as he was not confident of appearing by himself, which the Tribunal accepted, though it also said it was extremely unfortunate that he and the Second Respondent (who it noted seemed to have given the conduct of the case wholly into the First Respondent’s hands) chose not to contact the Tribunal. 51.6. They chose not to attend but in the very specific circumstances where they had been let down at the eleventh hour, being heavily reliant on their legal advisers. 51.7. There was some culpability in the First and Second Respondents’ failure to communicate with the Tribunal.[52]Particularly given how Mr Calvert put the Respondents’ case in support of its application for costs, it is necessary to remind the parties of some of our findings of fact at the Liability Hearing on a variety of factual disputes we were required to resolve. We record them in the order in which we made them at that Hearing and refer for full context to the Reasons for the Liability Judgment: 52.1. We found it inherently implausible that the Claimant left his previous job, as someone with ample experience and a proven ability to get new roles, to go and work for someone who he suspected had already discriminated against him when not employing him previously. We also noted this was not mentioned in his statement. 52.2. We said it seemed inherently unlikely that the Health and Safety Executive would issue two different sets of QC slides to the Fourth Respondent, with different regularity, for essentially the same purpose, as the Claimant asserted. 52.3. We did not find it surprising that the First and Second Respondents said they mentioned the importance of the Fourth Respondent’s accreditation when new starters attended their induction. We could understand the Claimant’s submission that this evidence was a rather convenient part of the Respondents’ evidence, but preferred the Respondents’ account. 52.4. Whilst it may well be that the issues with the Claimant’s company car were things the First Respondent would rather not have been dealing with, we found that the comment of 30 November 2019 attributed to him by the Claimant was not made. We found it implausible that the First Respondent would have said that the Claimant “always” made comments about the vehicle after just a few days of employment and that what the Claimant attributed to the First Respondent was also out of kilter with their text exchanges. 52.5. The Respondents’ Further Particulars of Response denied that the Claimant sent a message to the First Respondent outlining the legal position regarding windscreens. The First Respondent accepted that was wrong. 52.6. We concluded on balance that the telephone call of 12 December 2019 did not transpire as the Claimant said and that he probably misconstrued the First Respondent’s comment that he would prefer to chat about things before an employee made a formal complaint. 52.7. The Claimant could quite properly feel concerned about using a lighter to read slides, given the chemical being used, but we concluded he was wrong to say that the Respondents had removed details of a hotplate vaporiser from documentation. 52.8. We preferred the First Respondent’s account of the conversation on 24 December 2019. We said that just because we found that he did not do so previously, it is not impossible that the First Respondent could have shouted and sworn on this occasion, but what was recorded in the Claimant’s diary at page 623 was telling evidence to the contrary. 52.9. We accepted of course that the Claimant’s records for that day were sent to the First Respondent, but thought it clear that as managing director he would not read every certificate sent to him. 52.10. The Second Respondent said at MW11 that the Claimant had issues with both RICE and QC counts. In oral evidence he accepted that there were in fact no issues with the Claimant’s QC counts, and so this was an error in his statement. 52.11. We accepted that the Respondents did not exaggerate the Claimant’s paperwork mistakes and that he was no differently treated to others in this regard, who the Claimant said himself had spent longer than him in the office correcting work. We accepted there was only one email in the bundle referring to the Claimant’s mistakes, though the Claimant did not deny they were made. 52.12. The First and Second Respondents gave contradictory evidence about whether the issue of the Claimant being aggressive with a customer was raised with him at their meeting on 11 March 2020. 52.13. Drawing inferences from the surrounding circumstances, we found that the Claimant did not say at that meeting that he was being asked to go home because of his race. 52.14. The First Respondent originally said at WB26 that the parking fine was received on 3 April 2020, but he changed this in his oral evidence to 30 March 2020. He told us his statement was an error by the Respondents’ former advisers and that he should have checked the statement more carefully. 52.15. It was inconsistent with the idea of earlier receipt that he sent the ticket to the Claimant on 3 April asking for his comments, and yet he insisted he did. 52.16. The Third Respondent says he called the Claimant to discuss the issue of the parking ticket with him. We found the Third Respondent’s evidence generally reliable and convincing, but on the question of when he prepared the report at pages 540 to 543 and whether he spoke to the Claimant as that document indicates, we concluded that we could not trust what he told us. 52.17. The Response denied that the Claimant said on 8 April 2020 that there was “a race thing going on”. This was incorrect. 52.18. It was a noticeable omission from the Claimant’s statement that he failed to mention referring to his race when raising falsifying of documents at that meeting, and so on balance we concluded he did not say it. 52.19. The Claimant’s explanation given to us as to how he completed his paperwork on 7 March 2020 was difficult to follow to say the least and lacked credibility. 52.20. Contrary to the Respondents’ assertions, the dismissal letter was clearly written before the meeting of 8 April. 52.21. We preferred the Claimant’s case to the Respondents’ as to when the events of 7 March 2020 were put to him at that meeting. 52.22. The First Respondent told us he at no point told the Claimant he could take the car home on 8 April, when he clearly did. 52.23. The First Respondent says at WB45 that there was no agreement to reimburse CSCS costs incurred by the Claimant from previous employment, but he told us in oral evidence that he agrees there was and that this was another mistake in his statement. 52.24. On the core question of doctoring of certificates, the balance of the evidence was by no means one way, though we concluded it had not taken place or been encouraged by the Respondents.[53]As noted above, there were four costs applications: 53.1. The Claimant applied for a PTO in the sum of £953.40, reflecting 60 hours of work preparing for the original Jones Tribunal hearing, which he says was fruitless work on his part because Mr Ennis then had to duplicate it for the Hearing before us in August. He says the First and Second Respondents’ conduct in not turning up to the first Jones Tribunal hearing was unreasonable. 53.2. He also applied for Mr Ennis’ costs incurred in relation to preparing for and attending the Jones Tribunal reconsideration hearing, in the sum of £1,831.50 including VAT. This application was made on the same basis, namely that the reconsideration hearing would not have been needed had the Respondents not unreasonably failed to attend at least the first day of the first Jones Tribunal. 53.3. The First and Second Respondents applied for an order that the Claimant pay their costs of preparing for and attending the reconsideration hearing – around £19,000 including VAT – on the basis that the Claimant should have conceded that the judgment would be revoked. 53.4. The first three Respondents also applied for their costs of the Final Hearing before us, around £44,000 including VAT, on the basis that the Claimant acted unreasonably in pursuing his complaints to that Hearing, and that his complaints had no reasonable prospect of success.[54]The Respondents did not wish to give evidence as to their ability to pay. The Claimant gave evidence as to his financial means, but for reasons that will be clear from our conclusions below, it is not necessary for us to record that evidence. Law[55]The relevant rules of procedure are rules 74 to 78 of the Rules. In respect of these applications, the particularly relevant rule is rule 76 which in part reads as follows: “(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that –(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted;(b) any claim or response had no reasonable prospect of success”.[56]Case law provides regular reminders that costs orders remain the exception not the rule in employment tribunal litigation, although that does not mean that exceptional circumstances are required for such an order, just that the relevant test is satisfied. Orders for the payment of costs are intended to be compensatory for the receiving party, not punitive for the paying party.[57]As set out above, the first step is to consider whether rule 76(1)(a) and/or (b) is satisfied. If so, the second step is to consider whether to make a costs order; it is not mandatory to do so and tribunals have a wide discretion in that regard. If it is decided that a costs order should be made, the third step is to consider the amount of the costs to be paid pursuant to the order, and in doing so the Tribunal may take the paying party’s financial means into account. A summary assessment can be carried out if the amount of the costs order does not exceed £20,000, which we assumed was what the Respondents were asking for in relation to their applications.[58]In respect of rule 76(1)(a), the Tribunal should consider the nature, gravity and effect of the conduct that is alleged to have been unreasonable, though not as though it were applying a checklist. In Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ. 1255, the Court of Appeal made clear that it is necessary to look at the whole picture of what happened in the case and ask whether there has been unreasonable conduct by a party in either the bringing or conducting of the case. The Tribunal must identify that conduct, what was unreasonable about it and what effects it had. As to this last point, which is concerned with causation, it is not necessary to find a precise link between the unreasonable conduct and the costs incurred but matters of causation must not be ignored altogether.[59]In respect of rule 76(1)(b), the EAT in Radia v Jefferies International Ltd [2020] EAT/0007/18 held that where a party is seeking costs in respect of the whole case (that is effectively what the Respondents were seeking in their second application), the test is whether the prospective paying party had no reasonable prospect of success judged on information known or which could reasonably have been known to him at the outset. In other words, a tribunal must ask how the party’s prospects looked at that earlier point, enquiring into what he knew, or ought to have known, were the true facts and what view he could reasonably take of his prospects in light of those facts. The tribunal must not be influenced by hindsight and so take account of what could not reasonably have been known, though information since acquired by the tribunal may cast light on that question. The question is what the party knew or ought to have known were the true facts and what view they could take of their prospects in the light of those facts.[60]In respect of whether to exercise discretion to award costs, the EAT said in AQ Ltd v Holden [2012] IRLR 648, EAT that a tribunal can take into account whether a party was not professionally represented, and if so, should not judge them by the standard of a party who was. Proper allowance should be made for lack of experience and objectivity.[61]A party’s ability to pay may be taken into account – rule 84 says in relation to whether to make an order and if so, in what amount – and has to be balanced against the need to compensate the party making the application. Analysis The Respondents’ first application – the Jones Tribunal reconsideration hearing[62]As stated above, the ground of this application was that the Claimant acted unreasonably in not agreeing that the initial Jones Tribunal judgment should be revoked. We found it difficult to understand how the Respondents could have hoped to succeed in making a costs application on this basis, for the following reasons: 62.1. The Claimant had a judgment in his favour, after a five-day Hearing, during which he had been questioned by the Tribunal panel, admittedly without prior cross-examination by the Respondents, for two days. 62.2. Paragraph 28 of the Jones Tribunal Reconsideration Judgment said that given the Respondents knew that the original hearing was taking place, and chose not to attend, ordinarily that would be the end of the matter and they would be bound by the ensuing decision. That was the Jones Tribunal’s starting point and the Claimant cannot be criticised for adopting it. 62.3. The Jones Tribunal also found some culpability on the part of the Respondents when giving their judgment at the reconsideration hearing. 62.4. As Mr Ennis submitted, the Jones Tribunal also said they revoked their judgment with a heavy heart.[63]In view of all of that, we could see no basis on which it could be said that the Claimant should reasonably have known and conceded that the original Jones Tribunal judgment would be overturned: in short, it was by no means clear that it would be. This application did not meet the threshold for a costs order by any means. The Respondents’ second application – the August 2024 Liability Hearing[64]In making this application, Mr Calvert did not address specific complaints he says the Claimant should reasonably have known would not succeed; his case could only have been therefore that the Claimant should have known the whole Claim would not succeed. Acknowledging that our analysis should not be based on what we know from the present vantage point, we would nevertheless point out that of course that has not turned out to be the case, in that one of the complaints succeeded and the Claimant has been compensated for it.[65]As to the basis for his submission that the remaining complaints had no reasonable prospect of success (and thus that it was unreasonable of the Claimant to pursue them), Mr Calvert’s main arguments were: 65.1. Most of the complaints did in fact fail. 65.2. Most of the conflicts of evidence were resolved in the Respondents’ favour. 65.3. The Claimant should have known this after he got judgment in his favour from the first Jones Tribunal.[66]Our response to those submissions was as follows: 66.1. What we concluded at the Liability Hearing does not necessarily tell us what the Claimant should reasonably have known after the original Jones Tribunal hearing a year before. In that sense therefore, the first two submissions made by Mr Calvert seemed to us to mistake the question we were required to answer. 66.2. It is not at all clear why the Claimant should have reached the conclusion that most of his complaints had no reasonable prospect of success after the Jones Tribunal found in his favour. He could reasonably reach the opposite conclusion. 66.3. The Claimant could legitimately challenge the Respondents’ case regarding his dismissal, on the basis of what on its face appeared to be a dismissal letter prepared many weeks before he was in fact dismissed.[67]In addition: 67.1. The factual conclusions we reached where there was a conflict of evidence between the parties went both ways as our selections from our liability findings set out above amply demonstrate. In relation to a couple of those conflicts of evidence we said it was obvious or abundantly clear to us that the Respondents’ case was to be preferred, but generally that was not the case. Generally, we were required to consider the evidence very carefully before resolving the factual disputes rather than it being readily apparent how they should be resolved. As one of my colleagues noted, our deliberations took two and a half days. 67.2. Indeed, the question of whether the Claimant was asked or pressurised to doctor QC slides, which lay at the heart of many of the issues before us, required detailed analysis of a combination of various documents, the witness statements and oral evidence, and as stated above, it was not a one-sided picture. 67.3. There were several important factual assertions made by the Respondents that we simply could not accept. 67.4. By no means all of the factual disputes we were required to resolve could have been determined from the documentation and statements available to the parties before the Hearing before us. Our point in setting out above a long list of how factual disputes were resolved both ways, is to explain why we concluded that Mr Calvert was not on strong ground in his assertion that most of the disputes were resolved for the Respondents. 67.5. We identified several inconsistencies in the Respondents’ case, evident on the face of the pleadings, statements and bundle of documents. 67.6. We found that the Claimant made two protected disclosures, both of which the Respondents contested. Those are points which could only be finally identified at the conclusion of our deliberations, but they are nevertheless indicative of and cast light upon how the case looked prior to the Hearing before us.[68]Further still, as Mr Ennis submitted: 68.1. We did not find that the Claimant was dishonest in giving his evidence. We did not say that of any witness, despite the problems with the evidence of all of them, perhaps largely (though not wholly) excepting the Second Respondent. 68.2. The Claimant bore the burden of proof. Not satisfying that burden does not of itself mean his complaints had no reasonable prospect of success.[69]Perhaps of most importance, the Claimant had previously had a judgment in his favour, after what it must be said appears to have been a robust Hearing before the Jones Tribunal, with the same bundle and statements that were presented to us. Of course, with Mr Ennis’ advice, he could reasonably know that things may not be so straightforward before us because the Respondents would be present, but given his own evidence had previously been tested and that the Jones Tribunal had apparently considered the Respondents’ statements as well as his, whilst the Claimant’s expectations in respect of most of his complaints have not been met, that does not mean he could not reasonably have expected a positive outcome for the reasons we have given.[70]It seems to us that the Respondents’ second application was essentially made on the basis that by and large they won, and therefore they should get their costs. That is not the costs regime in the employment tribunal. The threshold test for a costs order was not met.[71]For completeness we add that Mr Calvert also submitted that the Second and Third Respondents had no findings of liability made against them. That is true, but we repeat what we have just said about what the Claimant could reasonably have known at the end of the first Jones Tribunal, which is what we were required to consider. The Claimant’s applications[72]It was agreed that the Claimant’s applications rested only against the First and Second Respondents, not the Third, as the Jones Tribunal made no findings of liability against him.[73]As noted above, both applications were made on the basis that it was unreasonable conduct on the part of the First and Second Respondents not to attend the first day of the first Jones Tribunal. That is what Mr Ennis’ costs order application dated 28 March 2024 said. He added in oral submissions that failure to provide an explanation of their non-attendance at, or seek a postponement of, the first Jones Tribunal hearing was also unreasonable conduct. Mr Calvert did not object to the basis of the application being somewhat widened in this way, which we think was sensible, given that he had a clear opportunity to respond to it.[74]The core question was whether there was unreasonable conduct on the part of the First and Second Respondents in either of these respects. The Jones Tribunal said in its reconsideration judgment: 74.1. They chose not to attend the first hearing. 74.2. But this was in circumstances where they had been let down at the eleventh hour by advisers on whom they were heavily reliant. 74.3. The First Respondent was not confident of appearing by himself. 74.4. It was nevertheless extremely unfortunate that he and the Second Respondent did not contact the Tribunal and that there was some culpability on their part in that respect.[75]What did we conclude? We found that the non-attendance itself fell just short of unreasonable conduct in the specific and highly unusual circumstances we have described. We can understand an inexperienced party to a claim not feeling able to face a Tribunal hearing at all, when at the last-minute left without the representation they had enjoyed in the long run up to the Hearing.[76]What was not explained however, is why the two Respondents did not contact the Tribunal at all, whether by email or telephone, to seek to explain their circumstances and obtain the Tribunal’s directions as to what should happen as a result. We appreciate that the First Respondent’s focus was on trying to resurrect professional representation, but we were given no reason why the Tribunal could not have been informed of the position. We concluded that the failure to contact the Tribunal altogether fell into the category of unreasonable conduct, a conclusion which was only a small step from the analysis of the Jones Tribunal referred to above.[77]As to whether to exercise our discretion to make a costs order or PTO, the two Respondents were not experienced in tribunal proceedings or HR matters generally, but they are experienced professionals and businessmen and very obviously could have made contact as we say they should. The failure to contact the Tribunal led the Jones Tribunal to go ahead with the first hearing in complete ignorance of the Respondents’ position. It was the Respondents explaining their position for the first time in their reconsideration application that led to the Jones Tribunal reconsideration hearing and thus to the Claimant incurring the costs thereof.[78]As Mr Calvert said, the Claimant would have had to prepare for the possibility of the original Jones Tribunal hearing proceeding in full, because he could not have been sure it would not even in the absence of the unreasonable conduct. We did not think it appropriate therefore to make the PTO: those costs would have been incurred in any event.[79]It is clear however that Mr Ennis’ costs preparing for and attending the reconsideration hearing were incurred because of the unreasonable conduct for the reasons set out at paragraph 77 above. It is irrelevant that the Claimant did not apply for costs at the Jones Tribunal reconsideration hearing itself, and whilst Mr Calvert said that the Claimant instructing solicitors was not due to the Respondents’ conduct, he can hardly be criticised for doing so, given that he was to attend a very unusual hearing to seek to uphold a judgment very much in his favour.[80]We therefore concluded that we should order the First and Second Respondent to pay Mr Ennis’ costs. There was no dispute as to the amount and we heard no argument about inability to pay. The First and Second Respondents were therefore ordered to pay to the Claimant, jointly and severally, the sum of £1,831.50. This includes VAT which of course the Claimant cannot recover. Signed by: