Dr R Black v Imagination Technologies Group Ltd and Others: 3307544/2020

EMPLOYMENT TRIBUNALS

Case No 3307544/2020

Between

Dr R BlackClaimant

Imagination Technologies Group Ltd and OthersRespondent

Before

Employment Judge Cowen

Date 5 March 2026

REASONS

Glossary In this Judgment the following abbreviations are used R1 First Respondent Imagination Technologies Group (UK) Ltd R2 Second Respondent Ray Bingham R3 Third Respondent John Kao R4 Fourth Respondent Peter Kuo R5 Fifth Respondent IMG Technologies LLC CB Sixth Respondent Canyon Bridge International Holdings Investment Limited CR China Reform LW Lining Wang Executive of China Reform CEO Chief Executive Officer CFO Chief Finance Officer CTO Chief Technical Officer HRD Human Resources Director AMENDMENT This Judgment has been amended and is posted on the Employment Tribunal website with redactions and changes to ensure that the legal professional privilege/confidentiality of the parties is maintained. Any parts which have been underlined are changes from the original judgment which the parties have seen. Any parts which have been removed are indicated by XXXXXXXXXXXXX.

Introduction

[1]The Tribunal acknowledges and apologises for the delay in this Judgment being made available to the parties. This has been due to the number of deliberation days required and the current workload of the Tribunals.

[2]The issues in this case are attached at Appendix 1 to this Judgment. Appendix 1 has been redacted in parts to preserve the legal professional privilege/confidentiality of the parties. The issues were considered with the parties at the start of the hearing and were agreed to encompass all the points the Claimant sought to bring to the Tribunal.

[3]The parties agreed at the outset that no liability would be held by Canyon Bridge International Holding Investment Limited (R6) and therefore claims against them were dismissed.

[4]The Tribunal were provided with over 7000 pages in hard copy. Together with an initial statement of the Claimant running to 167 pages and a second statement of a further 18 pages. The Claimant’s witness Mr Gentry, also provided a statement of 22 pages.

[5]The Respondent provided witnesses statements for six witnesses with 149 pages of statements in total.

[6]Both parties provided an opening note and a chronology, cast list and a proposed timetable was also provided to the Tribunal.

[7]A time table for the hearing allowed for 1.5 days of Tribunal reading time, in which we were able to cover only the basic aspects of the pleadings, statements and opening notes. Reading of the documents occurred during the hearing and as we re-read each statement prior to the witness appearing.

[8]The evidence was heard over 10 days of hearings, as set out in the time table and both parties were able to complete their evidence in the time allocated to them.

[9]The Claimant provided a stenographer to make a digital transcript of the hearing which was provided to the Tribunal each morning in relation to the previous day.

[10]The Tribunal room was occupied by the representatives, the parties, witnesses and supporters and at times became both hot and noisy. Breaks were taken in each session in order to allow all parties to take fresh air and rest from the proceedings.

[11]The parties both provided written closing submissions and provided oral responses to the submission of their opponent.

[12]The Tribunal wrote to the parties after their first deliberation session to request further submissions in relation to two specific questions; Firstly their submissions in relation to the case of Tiplady v City of Bradford Metropolitan District Counsel

2020 ICR 965

,CA, as it applies in this case and secondly, whether employment of the Claimant by the First or Fifth Respondent is exclusive of employment by the other and whether the Fifth Respondent can hold liability under s.103A ERA. Both parties replied to the Tribunal within the deadline set and their submissions were considered by the Tribunal at the second set of deliberation sessions. General observations on the evidence

[13]The Tribunal were presented with over 7000 pages of evidence. The bundle was unwieldy and for the most part unnecessary. Counsel informed the Tribunal that an original bundle had been produced and then further disclosure added to it. This meant it was not in chronological order and made the hearing slower and physically challenging at times. It also meant that it was difficult for the Tribunal to locate and track documents during their deliberations.

[14]The Tribunal also noted that there was a significant amount of repetition of documents which ought to have been remedied by the parties before presenting the bundles to the Tribunal. Large sections of the bundle were not referred to at all and the cost of producing and copying the bundle was one which ought to have been reduced significantly.

[15]In contrast to the size of the bundles, the Tribunal were disappointed to see the dearth of record keeping on the part of all parties. They note that there are no records of any Board meetings in the bundle, nor of any other business meeting between the Directors of R1, or CB. Given that the Claimant was asserting that he had used these meetings to make Protected Disclosures, the Tribunal were also troubled by the lack of contemporaneous notes by any participant, including the Claimant.

[16]The witness statements were also lengthy and in some parts unnecessary. The parties are clearly in dispute, but included in the statements were personal slights which were of no assistance to the Tribunal and which again, lengthened the hearing and ought to have been the subject of advice by experienced solicitors such as those on both sides.

[17]The Tribunal took into account the fact that these events happened some 5 years prior to the hearing and that memories fade, as well as the fact that memories can be created by viewing the documents during the litigation process.

[18]All the parties to this case who gave evidence have reasons to protect their own positions. The Tribunal were aware that each of the main witnesses had a significant financial interest (either past or current) in R1 and or CB. The Claimant equally has a substantial financial interest in the outcome of this case.

[19]The ‘independent’ witnesses, were Mr Gentry, Mr Richardson, Mr Harold and Mr Beresford – Wylie. However, the Tribunal noted that Mr Beresford -Wylie is currently employed by R1 and is answerable to the funders of R1, who remain R2, R3, R4. Mr Richardson it transpired, has a financial interest in CB. Mr Gentry was a professional public relations consultant hired by CB and R1 at the relevant time and whose actions were subject to the Tribunal’s scrutiny. Mr Harold was not a truly independent witness, as he was a former employee of R1. The Tribunal therefore took account of the position of each of the witnesses when considering their reliability and the weight which ought to be placed on their evidence. Findings of Relevant Facts

[20]Having considered all the evidence, we find the following facts on a balance of probabilities.

[21]The parties will note that not all the matters that they told us about are recorded in our findings of fact. That is because we have limited them to points that are relevant to the legal issues. The People, Companies and their roles

[22]The First Respondent, Imagination Technologies Group Limited (‘R1’) is a company which specialises in designs of semiconductor processors. They sell licences to use their goods or services (Graphics Processing Units and Central Processing Units) to electronics firms and chip manufacturers to produce microchips, which are in turn used in a variety of technology based consumer goods, including vehicles, mobile phones, gaming and other technology controlled items. They can also be used in chips used in military weapons.

[23]R1 is a company which is wholly owned by Canyon Bridge (‘CB’) a private equity/venture capital company founded by four directors, Ben Chow, Ray Bingham, John Kao and Peter Kuo. The registered address is in the Cayman Islands. Ben Chow was removed from the company when he was convicted of insider dealing and imprisoned in the USA, with regard to a previous takeover which CB had attempted in the USA, but which had been prevented by the US Government.

[24]Ray Bingham (‘R2’/Mr Bingham) was and is Chairman of CB. He is a USA citizen, who was living and working in California and Utah at the time that the Claimant was working for R1. He visited London every 6 or 7 weeks for business meetings. He has been living in the UK since March 2020 just before the Claimant ‘left’ R1.

[25]John Kao (‘R3/Mr Kao’) is a Hong Kong and Taiwan national, who travelled to the UK up to 20 times per year prior to the Covid 19 pandemic for business purposes. He was living and working in Beijing, China and in Taiwan during the period of these events.

[26]Peter Kuo (‘R4/Mr Kuo’) is a Hong Kong national, who travelled to the UK 7 or 8 times per year prior to the Covid 19 pandemic. He was living in Hong Kong at the time of these events.

[27]China Reform (‘CR’) is an investment fund comprising of Chinese State and Local Government funding. It is a State Owned Enterprise (‘SOE’). It is the 100% owner of Yitai Capital Limited which was the limited partner of CB fund which owns R1. It is also the largest shareholder in China Venture Capital Fund Corporation which is the source of 99% of CB funding. The remaining 1% is owned by Canyon Bridge Capital Partners and is owned by the three Directors of CB, personally that is Mr Bingham, Mr Kao and Mr Kuo.

[28]IMG Technologies LLC (‘R5’) is a USA company and wholly owned subsidiary of R1, which was set up to employ the Claimant in the USA.

[29]The day to day running of R1 was within the remit of the Claimant as CEO. He was assisted in this by the Executive Management Board (‘EMB’) made up of the heads of various functions within the company; John Rayfield (Chief Technology Officer), Steve Evans (Chief Product Officer), Woz Ahmed (Chief Strategy and Admin Officer), David McBrien (Chief Revenue Officer), Nigel Leeder (Chief Innovation Officer), David Harold (Chief Marketing Officer), Gerry Conlon (executive Vice President Ensigma). `

[30]Stuart Black, Finance director and Michelle Byron, Human Resources Head were dismissed by the Claimant in 2019. Mr Richardson, the General Counsel attended EMB meetings, although he was a contractor at the relevant time.

[31]The Claimant’s wife Ellen Black was employed by R1 as Vice President of Business Operations from 13 May 2019. She was hired by the Claimant with the approval of Mr Bingham. She was dismissed by R1 on 30 April 2020, on the basis that her continued presence and access to company sensitive information created a conflict of interests, due to the dispute between the Claimant and R1. Claimant’s employment/ work with R1/R5

[32]In November 2017 CB purchased R1 for $800 million. At this time R1 had lost Apple Inc as a customer and needed to find investors.

[33]The Claimant was dismissed by his previous employer for a reason which was related to a disagreement on strategy.

[34]The Claimant’s employment history and reputation was as a ‘turnaround man’ helping failing companies to recover. He also had significant expertise in the semiconductor processor industry. He was therefore seen as the person to help R1 to recover from a disappointing period.

[35]The Claimant was known to Mr Bingham and was approached to discuss a potential position as CEO before the previous CEO Dr Li, was dismissed. He spoke with Mr Bingham and Mr Richardson at a London hotel, before the company engaged in meetings and written proposals of the job. The Claimant agreed to the position and started in November 2018, whilst still negotiating his terms and conditions with R1.

[36]By 12 December 2018 the employment terms between the Claimant and R1 had been agreed, including the location of work as Kings Langley, Hertfordshire, UK. An annual salary of $500,000, car allowance, participation in an equity plan (to be agreed) and other benefits were included.

[37]On 1 January 2019, the Claimant was appointed as a director of R1.

[38]It was agreed between the Claimant and the Directors of R1 that it would be more tax efficient for the Claimant to be employed in the USA. Therefore R5 was created with the sole purpose of employing the Claimant and immediately seconding him to work for R1. R5 was a wholly owned subsidiary of R1. R1 controlled the work of the Claimant and were for all intents and purposes his employer on a day to day basis. Claimant’s work within R1

[39]Throughout 2019-20 the Claimant attended monthly Forecast & Operations meetings with the Board of CB, usually with Mr Bingham and Mr Kao and on some occasions Mr Kuo. It was during these meetings that the Claimant asserts that he made protected disclosures about CR’s increasing involvement in R1 and their desire to have the technology transferred to China. There are no minutes of these meetings, nor any Board meetings, which have been shown to the Tribunal. Nor are there any contemporaneous notes by the Claimant of what he said. The Claimant also attended periodic meetings with CR.

[40]The Claimant was also asked more detailed questions at these meetings by CR and in particular Mr Kuo about the financial position of R1. The Claimant saw this as intrusion into his management of the company. Mr Kuo saw the Claimant as not able to answer financial questions and obfuscating them. Mr Kuo became wary of the Claimant’s ability to improve the companies’ fortunes.

[41]During early 2019 the Claimant was working with CR to improve R1 contacts within China. R1 had a small office of staff in China. The Claimant visited China to meet with CR executives in order to improve their contact and request assistance in making contacts within China.

[42]During early 2019 the Executive Management Board (‘EMB’) of R1 proposed to expand R1 business in China.

[43]On 19 February 2019 Bravo Lee, an employee of R1 in China sent an email to Mr Kuo which indicated that a meeting had occurred between R1 and CR concluding that R1 “needs to have a real China team that can handle design” and that it “does not make sense to have foreign Chairman and CEO if you really want to realise China benefits”.

[44]In late Feb/early March 2019 the Claimant was in contact with David Chen of Tsinghua Holding Group (‘THG’) to discuss their potential investment in R1. THG was an investment fund/private equity company with Chinese Government backed investment funds via the Tianjin University.

[45]In March 2019 the Claimant visited China and met with Lining Wang (‘LW’) an executive of CR. The meeting was informal. The Claimant reported to Mr Kao and Mr Bingham after the meeting that during the meeting LW had suggested to him that if R1 were to transfer its technology and redomicile to China, that the Claimant, personally, could make a lot of money. The Claimant interpreted this as a bribe and reported it to the Directors of R1. The other Directors considered that this conversation was not important as LW was not in a position of authority. They also believed that there may have been a confusion due to the language barrier between them. No further action was taken on this. From this point onwards the Claimant believed that CR was not merely a passive investor and that his position as CEO of R1 was subject to scrutiny by CR as well as the Directors of CB.

[46]From May 2019 the Claimant started to prioritise the rebuilding of the CPU part of the business. His preferred strategy was developed together with the EMB, which included the building of Reduced Instruction Set Computing – Generation V (RISC-V).

[47]In June 2019 in an Investment Memorandum, the Claimant supported the strategy to improve sales in China. R1 saw itself as ideally placed to enter this market due to having no US connections and therefore not restricted by the US- China trade war and restrictions on trade which were in place at that time.

[48]At this time Arm Holdings, a competitor of R1, were an 80-90% market shareholder of RISC-V CPU, as part of a bundle which was sold together with a GPU. The Claimant’s intention was to challenge this market share. Also at this time the Chinese Government were encouraging companies to enter the RISC V market in China.

[49]Between July and December 2019 R1 entered into negotiation with THG to receive investment which would allow R1 to research and develop a RISC- V product. Although a final contract was never agreed, a number of ‘term sheets’ were produced showing the progress of their negotiation. The proposal included an investment worth $300 million. Part of the proposal was that in return for the first tranche of $100 million, THG would have a director placed on the board of R1. In order to receive a second tranche of investment R1 would redomicile its headquarters to China. The Claimant was in agreement with this proposal. Mr Bingham and Mr Kao were strongly supportive of this project but on 13 February 2020 they along with Mr Kuo asked for all hiring to stop. This meant the development of RISC V stopped.

[50]Around August 2019 CR proposed that the board of R1 should be expanded to include one director on behalf of CR to join the board of R1. This appeared to be due to the prospect of THG having a presence on the board of R1, when CR would remain the largest investor. The Claimant asked Mr Bingham to ensure that the person appointed by CR would be someone with suitable knowledge and could speak English. No objection to this was made by any of the R1 directors, including the Claimant. The parties all moved towards an implementation date for this plan.

[51]During the third Quarter of 2019 Mr Kuo started asking for explanations of the Claimant’s plan on RISC V. He wanted to know details of how the Claimant could be so confident of the potential of RISC-V. The Claimant informed the EMB that further work would have to be carried out to answer these questions. On 15 October Mr Kuo told the Claimant that he would not be able to sign off the investment in RISC-V until he had sufficient answers to his questions.

[52]At the same time, on 6 September 2019 the Claimant wrote an email to Mr Kao, Mr Kuo and others saying “As you know, we plan on substantially increasing our investment in China, including complex R&D and that the most likely exit for Imagination is an IPO in China on the new stock exchange that will in turn require additional organisation changes in KL and China…..Longer-term with the IPO we would also be relocating our corporate headquarters to that city, or at minimum having a dual headquarter. To that end we have concluded that we need to add additional senior talent in China”.

[53]During October/November the Claimant, Mr Richardson and Mr Evans sent Mr Kuo information in a report dated November 2019 about the plan for RISC – V and the Claimant’s assertions for the potential sales of it. However Mr Kuo was not satisfied with this and asked further questions about the basis of the Claimant’s assertions.

[54]On 24 November 2019 Mr Kuo outlined further concerns to the Claimant and copied in Mr Bingham and Mr Kao. The Claimant contacted Mr Bingham the same day to ask to discuss matters with him, as the Claimant felt that Mr Kuo was hostile to his plans. In the call that followed, the Claimant told Mr Bingham that Mr Kuo was “fucking stupid for sabotaging the company”. (see 1923). In a WhatsApp exchange with the Claimant that day, Mr Bingham said of Mr Kuo’s email “ His email to you is dangerous”

[55]On 17 December 2019 ( 5304) Mr Kao sent a webchat message to Mr Kuo and Mr Bingham saying that CR wanted to add one director and one observer in addition to the one director THG were adding to the board and that CR wanted first hand access to information about R1. Both Mr Kuo and Mr Bingham agreed to this immediately and Mr Kao was able to respond to CR the same day.

[56]On 27 December 2019 the proposal from CR changed. They now requested that four new directors should join the board of R1. Mr Kuo replied the same day, giving his consent and saying that “we are pleased to confirm our agreement to that [expanding the board to eight directors]”. The proposal also included changes to the Articles of Association of R1, including reserving to the board the appointment and pay of the CEO, CTO, HRD and CFO.

[57]On 30 December 2019 the Claimant emailed Mr Kao and Mr Bingham to highlight that he opposed the additional directors and his reasons for his concerns. His email outlined that he was concerned that it would change the control of the company as “CR can effectively block/veto any action by the company” and that “ CB definitely cede’s control of the company to the Chinese government”. He outlines that “ We have been fortunate in the current trade war because we have no US development and whilst we have Chinese investors, they do not control the company – CB, a non-Chinese company does”. He goes on to point out that “ Being owned and controlled by the Chinese government will definitely make us more of a target for the US government and may even put us at odds with the UK government”.

[58]On 31 December the Claimant agreed with the Board of R1/R5 his equity contract.

[59]On 7 January 2020 there was more correspondence between the Claimant and Mr Kuo about the RISC- V business plan, where Mr Kuo acknowledged the Claimant’s work, but asked further questions. In the email Mr Kuo showed his frustration that the Claimant and his team were not able to provide the reassurance and the level of detail and the financial position and the customer engagement which Mr Kuo was looking for. Mr Kuo refers to his “ healthy skepticism reflected in this email” and “ need to have resolved before making the type of commitment that is being proposed by this RISC V initiative”.

[60]On 10 January 2020 Yi Bai sent an email to CB on behalf of CR. This indicated that CR were also asking questions about the Claimant’s strategy and wanting to receive more information. This email was not shown to the Claimant at the time.

[61]By 13 January 2020, the Claimant emailed Mr Bingham to indicate that he hoped that Mr Kuo’s questions were not going to slow down the progress of RISC-V. A review meeting was then held between the Claimant and Mr Bingham at which the Claimant was told that hiring in relation to RISC-V was to stop.

[62]Soon after this on 17 January 2020 a meeting was held between the Directors of R1 and CR, at which the Claimant presented his annual operating plan including a strategy in relation to RISC-V.The Claimant wanted to invest heavily in RISC-V and bring it to market as quickly as possible in order to compete with Arm.

[63]The Claimant was asked by staff in China about rumours of an argument between R1 and CB. The Claimant told the member of staff that there was no ‘spat’ but that Mr Kuo has been absent from Board meetings and is fighting with the other partners about RISC-V and that “his sabotage has created delays”.

[64]On 19 January 2020, the Claimant sent an email to Mr Rayfield and others on the EMB which described Mr Kuo as a their “chief sales prevention officer” and an “urgently do nothing terrorist”. He also wrote to Mr Bingham to say that Mr Kuo is going to lose the technical team in China with his actions. He suggested to Mr Bingham that this was something that they should “exploit with our CR friends”. In an email to Mr Evans and Mr Rayfield, the Claimant referred to Mr Kuo’s opposition to RISC-V as “his stupid an [sic] inaccurate narrative”.

[65]At the beginning of February 2020, the Claimant asked Mr Richardson for advice on whether appointing four CR directors to the Board of R1 would be seen as Chinese government control of the company. The Claimant also forwarded this letter to Mr Bingham. Soon after this the EMB also wrote to Mr Bingham to express the same concern and ask CB Board to reconsider this.

[66]In February 2020, it came to the Claimant’s attention that Mr Kuo had sought legal advice in December 2019 with regard to how to dismiss a CEO for lack of performance. This further soured the relationship between the Claimant and Mr Kuo.

[67]On 6 February 2020, the Claimant wrote a letter to CB setting out his concerns about the appointment of new CR directors to R1 Board. He did not suggest, nor consider, that his concerns were about matters which amounted to unlawful acts, indeed he said he was confident that the company lawyers would not let them do something unlawful. He also copied this letter to members of the EMB without the approval of the Board.

[68]The Claimant also spoke at a board meeting of R1 on 12 February 2020 about ensuring that directors were aware of their duties. There is no documentary record to support the content of what was said by the Claimant. Mr Kao was not present at this meeting, but it resolved to approve the Claimant’s proposal to explore the development of RISC-V. Mr Kuo was the only person to vote against the proposal.

[69]The following day, as a result of the input of Mr Kuo, there was a change of position by the board. Mr Bingham told the Claimant that there was to be no more hiring to the RISC-V team and that a feasibility study was required. This showed to the Claimant that it was not just Mr Kuo who was reluctant to endorse his plans, but that the board were also pulling back from their support of his plan. Mr Bingham told the Claimant that whilst he remained supportive of the RISC-V project, he could not risk CR not paying the management fees if they did not follow their instruction.

[70]On 13 February Mr Kuo responded to the letter from the EMB by writing to CR to say that he believed that the Claimant was influencing others with his views on whether the additional directors were a good idea.

[71]On 14 February, Mr Richardson, the R1’s in house legal adviser wrote to R2,3,4 and the Claimant with regard to the proposed changes to the Articles of Association. XXXXXXXXXXXXXXXXXXXXXXXXXXXX

[72]The Claimant then wrote to the chairman of CR on 16 February 2020, saying that his letter was on behalf of the senior executive team. It outlined his concerns about potential changes to the Board of R1. He copied this letter to the EMB and Mr Bingham.

[73]On 19 February a representative of CR wrote to Mr Kao and Mr Richardson saying that they wanted to postpone the RISC-V project until a more complete assessment of the viability had been undertaken. Mr Bingham became aware of this email and sent it on to the Claimant.

[74]On the same day, the Claimant indicated to Mr Bingham and Mr Kao that he disagreed with the proposal that the Board of R1 should reserve the hiring of a Human Resources Director and Chief Technical Officer to itself. He also referred to the company as “ the walking dead” if they were controlled by the Chinese government.

[75]Further on the same day, members of the EMB discussed with the Claimant that they would resign if the change of control of R1 went forward.

[76]In the week commencing 17 February the Claimant, Mr Bingham and Mr Kao met with Mr Gentry and Mr Kellie of Newgate, a public relations adviser, at the Cadogan Hotel, London, to discuss how to manage the message of the new directors being added to the Board of R1. At this time they were all agreed that they opposed the addition of a CR appointed Director. All were present when it was agreed that there should be a ‘leak’ of this information to the press. It was agreed that it should be made to look as though none of them were aware of it.

[77]After the meeting the Claimant messaged Mr Gentry to plan further how the leak should be handled.

[78]A meeting between R1 directors and Lining Wang was held on 27 February 2020 in which it became clear that CR were concerned about R1 developing a RISC-V project, when another of their investments (MIPS) was already doing so. The Claimant believed Mr Kuo to have an interest in MIPS and therefore a conflict of interests in R1 developing RISC-V. He believed this was why Mr Kuo was attempting to delay and obstruct his plan to develop RISC-V.

[79]On 3 March, CR replied to the Claimant’s earlier letter, thanking him for his input.

[80]Around this time, the Claimant was instrumental in negotiating a settlement with Apple Inc over a dispute about Apple’s ceasing to licence R1 products. The result was a deal which saw R1 receive $330 million over five years. The first year’s amount was an instalment of $40 million, which was included in 2018 accounts, in 2019 no benefit was shown from this deal as part of the arrangement with regard to the accounts.

[81]On 5 March Mr Richardson and the Claimant emailed about the potential for new UK legislation with regard to foreign ownership. The Claimant acknowledged that he knew that there was no legal requirement to notify the authorities of Chinese control of R1, but that the law may change in the future.

[82]Around 9 March the Claimant set up a meeting with Mr Levy from GCHQ to discuss whether the Chinese control of R1 would pose a national security risk. The result of the meeting was that the Claimant started to write a formal note to Mr Levy to tell him of the position. However, this was never sent.

[83]On 10 March 2020 the Claimant emailed Mr Bingham and Mr Kao to say that he was concerned that CR wanted to ‘dictate hiring’ as they were “clueless what it takes to run a business” and that the EMB were spending more time answering questions about RISC-V from CR than they were on their customers.

[84]The following day the Claimant met with the local MP. He reported to Mr Bingham and Mr Kao that the MP said that CR control of R1 would not go down well with the UK government.

[85]Around this time the Claimant was speaking to the EMB about the possibility of his resignation over this issue. However, Mr Bingham and Mr Kao were not aware of this.

[86]The Claimant continued to correspond with both Mr Bingham and Mr Richardson about the fact that he considered Mr Kuo to be in a conflict of interests and that the addition of CR directors would lead to control by CR, which the Claimant wanted to delay for as long as possible.

[87]During March, the Claimant also started to draft a letter (‘manifesto’) and asked Mr Richardson for advice on the legal position in relation to this. Mr Richardson and the EMB were therefore aware of the Claimant’s intention to send the manifesto and his intention to threaten to resign.

[88]On 21 March 2020 the Claimant sent a WhatsApp message to Mr Bingham to thank him for getting Mr Kao to agree to his bonus. The Claimant did not mention that this was insufficient. They exchanged further messages about how/when the Claimant would be paid, but the Claimant did not contest the amount.

[89]On 23 March 2020 the UK started a Covid-19 lockdown. All the directors of R1 were in their home countries. The Claimant was also at home in the USA. The Claimant did not see Covid-19 to be a risk to the staff or business of R1 and left the management of staff in the UK to those who were present.

[90]On 27 March the Claimant messaged Mr Bingham to say that CR intended to take direct control of the company on 2 April (a board meeting for all ratifications was arranged originally for then) and that now is the time for Mr Kao to “hold”, with no compromise. Mr Bingham did not respond to this.

[91]The Claimant also exchanged messages directly with Mr Kao where he told him that Mr Kuo was conflicted and that this was the reason CR were blocking the RISC-V project.

[92]The Claimant also indicated to Mr Bingham that he was not prepared to sign the amendments to the Articles of Association as he did not think that the addition of directors from CR was in the best interest of R1. He indicated that he felt that it would bring the company into the control of the Chinese government. He said “ So I’m not sure how any of us can vote in favour of this given the obvious irreparable damage this will cause to our existing business”.

[93]On 28 March 2020 R1 received legal advice from their UK lawyers Pinsent Masons with regard to the proposed appointment of China Reform appointed Directors. XXXXXXXXXXXXXXXXXXXXXXX.

[94]On 29 March 2020 the Claimant requested from US law firm Wilson Sonsini an advice on the position in the USA of having Chinese directors of R1. The Claimant outlined to them his views.

[95]The advice given by return from Wilson Sonsini was XXXXXXXXXXX.

[96]On 2 April 2020 the Claimant wrote to Mr Bingham and Mr Kao saying XXXXX they should inform the appropriate authorities in the US and UK of the proposed addition of CR appointed directors to R1. XXXXXXX

[97]The Claimant also wrote to Mr Richardson asking him whether, in light of the investigation into the actions of Mr Kuo, he should not attend the forthcoming Board meeting.

[98]On 4 April 2020 the Claimant received notification from Mr Gentry at Newgate that Mark Kleinman of Sky news had issued an article about the potential of CR trying to seize control of R1. This was an article written due to a leak from R1, of the situation. The Claimant sent this to Mr Bingham, in order to lay a paper trail, to show them all to be surprised and concerned by the article. Mr Bingham then contacted Mr Kao to inform him.

[99]On 5 April 2020 the Claimant and Mr Bingham spoke by telephone. The conversation was tense, but the Claimant did not tell Mr Bingham that his intention was to resign the following day. 6 April 2020

[100]On 6 April 2020 at 13.48 the Claimant emailed Mr Rayfield, Mr Leeder and Mr Evans showing them a draft of a letter he intended to send to employees after he resigned. This amounted to forewarning that the Claimant was going to resign. This email was also copied to Mr Kellie at Newgate. Mr Evans replied at 13.53 to this to say that he was also writing his resignation email and wanted to be included in the Claimant’s email to staff. Mr Leeder replied at 13.56 with a draft of his resignation. Mr Rayfield’s draft arrived at 15.00.

[101]The Claimant then co-ordinated the resignations of these members of EMB, by asking them to send their resignations to him.

[102]Mr Bingham was unaware of these plans at the time. He forwarded an email from Oliver Dowden MP, Secretary of State, which said that he was concerned about the Board meeting due to take place the following day to discuss the CR appointments.

[103]The Claimant wrote to Mr Bingham at 15.18 UK time with a long letter referred to as the ‘grave concerns’ letter. This explicitly said that he considered that redomiciling R1 to China would be a breach of R1 director’s duties (4744). He also outlined the fact that CR had been taking an increasing amount of interest in R1 and their proposal to appoint Directors, including taking control of appointing a Chairman of the Board and senior executives of the company. The Claimant pointed out that he found this to be unusual and that Chinese control of the company was not in the interests of R1. He also referred to the potential for scrutiny by the UK government as to whether there was a national security issue of the company being controlled by the Chinese government. Hence he considered that directors who allowed this to occur would be in breach of their statutory duties (4742).

[104]In the letter the Claimant goes so far as to refer to his “continuous escalation and whistle- blower letters and memos”. The letter attaches the advice from both Pinsent Masons and Wilson Sonsini.

[105]Mr Bingham sent the letter on to Mr Richardson and to Mr Kellie. He also replied to the Claimant to ask him to call him ASAP. The Claimant did not do so before he sent his next email to Mr Bingham.

[106]Mr Kellie, who had been copied into the Claimant’s earlier emails to the others who were planning to resign, sent an email to Mr Kao, Mr Bingham and Mr Harold amongst others, indicating that Sky News were going to run a further story saying that the Claimant was on the brink of resignation.

[107]At 16.12 the Claimant wrote a further email to Mr Bingham. This email tendered his resignation as CEO of R1 (but not as a director). He stated that he had been told that CR was a limited partner (explained to the Tribunal to be a passive investor rather than a controlling one), but that he now understood that was not the case and that CR would take over R1.

[108]Mr Bingham forwarded the email to Mr Kao and Mr Kuo saying that he needed to speak to them immediately.

[109]At 16.19, before he had spoken to Mr Bingham, the Claimant sent an email to all employees of R1 informing them of his resignation. He received a number of responses from members of staff, thanking him for his work and showing respect to him. The Claimant’s reply to some of these emails was that “my fight is not over”, or similar words.

[110]Shortly after this the Claimant sent copies of the resignation emails of Mr Rayfield, Mr Evans and Mr Leeder to Mr Bingham.

[111]Mr Bingham responded to the Claimant at 17.15 asking him not to take any action about these resignations “until we speak. I’m available any time for your call”. At this point, they had still not spoken.

[112]At 18.45 Mr Harold told Mr Bingham that the Claimant had sent his resignation to the whole company and his belief that Mr Rayfield, Mr Evans and Mr Leeder had told their teams.

[113]At 19.03 Mr Kuo sent a WeChat message to Mr Bingham indicating that he had spoken to CR and that the board meeting the following day would not take place. Shortly after this Mr Bingham, Mr Kao and Mr Kuo held a telephone conference in which they agreed that they would not go ahead with the appointment of CR Directors.

[114]At 20.18 the Claimant told Mr Harold that he had just spoken to Mr Bingham. In that call, Mr Bingham told the Claimant that the Board meeting had been cancelled and that everything could ‘return to normal’. The Claimant asked Mr Harold to draft an email to all staff to reassure them of this and that a full staff meeting would happen the following day. That email was sent at 23.30.

[115]At around 22.00 Mr Bingham approved a press release for the following day saying that the Claimant remained the CEO and that the Board remained unchanged. 7 April 2020

[116]On 7 April 2020 at 07.53 the Claimant emailed the EMB to tell them that “CR/CB have backed off change with meeting cancelled. Resignations have not been accepted, so back to ‘normal’”.

[117]At 09.34 Mr Harold and the Claimant held an ‘all hands’ meeting. At this meeting staff were told that the Claimant was truly sorry and that he was happy to report that the board meeting had been cancelled and so all was back to normal as the resignations had not been accepted.

[118]It was at this meeting, that a member of the internal legal team asked the Claimant if he had written confirmation of the fact that his resignation was not accepted. The Claimant wrote to Mr Richardson to ask whether he needed to formally withdraw his resignation. He then wrote to Mr Bingham in any event at 10.55 saying “just for the sake of record keeping, I withdraw my resignation”. In a further email a few minutes later he asked Mr Bingham to confirm.

[119]Around the same time, Mr Kuo emailed Mr Bingham suggesting that the resignation of the Claimant should be accepted, in light of the events which had occurred and said that “ I do not see any scenario where Ron is an appropriate executive for Imagination”.

[120]On the afternoon of 7 April 2020 Mr Kao emailed Mr Bingham. He too had the view that the Claimant should be dismissed due to his actions. He likened it to the captain of a ship which had been involved in a collision “ his actions constitute dismissal offences, especially his communications with employees and possibly customers that significantly hurt the company. Plus he resigned”.

[121]Correspondence from the Claimant continued with him questioning Mr Kuo’s actions again in a further email to Mr Bingham and Mr Kao, suggesting that Mr Kuo had approached another person to enquire if they would be interested in becoming CEO of R1.

[122]The Claimant’s WhatsApp message to Mr Bingham also inquires whether CR and CB partners are “Backing down, or preparing for another assault?”.

[123]On 8 April 2020 the Claimant chased Mr Bingham to ask him to confirm the withdrawal of his resignation. Once again Mr Bingham did not respond. The following day the Claimant sent Mr Bingham a copy of his email to Mr Harold on 6 April when he stated that no resignations have been accepted and pointing out to him that this was his position. 10 April 2020

[124]On 10 April Mr Bingham called the Claimant and told him that the Board had decided not to allow him to withdraw his resignation. This was followed up by a letter which confirmed the position. Stating that it would be “in the company’s best interests to terminate your employment immediately as authorized under clause 3.2”. The letter was sent on R1 headed notepaper, it is signed by Mr Bingham as Chairman and refers to “your employment and secondment terminate today”.

[125]On 30 April an article was published in the EE Times. The Claimant knew that the information in this article was information which was in the public domain as it referred to its sources in other press material, as well as to Mr Bingham. The article speculated that the Claimant had been unable to turnaround the financial position of the company and had created a political turmoil as a means of creating a reason to resign.

[126]There was a Teams meeting between Mr Bingham, Mr Kao and Mr Kuo on the same day where they discussed whether sensitive information could reach the Claimant, bearing in mind that the EE Times article had been published with information which the R1 Board considered to be sensitive. They discussed the continued employment of Mrs Black, VP Business Operations who had been employed by the Claimant. They decided that that they could not maintain confidentiality and that Mrs Black should be dismissed in order to protect confidentiality.

[127]A meeting was held with Mrs Black at which she was told that her dismissal was not as a result of any misconduct or lack of capability on her part, but was due to her association with the Claimant, with whom the company were now in dispute.

[128]On 15 June 2020, the Claimant appealed against his termination and outlined what he stated were protected disclosures. This was dealt with by Mr Bingham on 2 July when he responded to say that he was not prepared to deal with this as an appeal, due to there having been a 2 month delay in receiving it and there being no procedure to follow. THE LAW Territorial Reach

THE LAW

[129]The Tribunal were asked to consider whether it has jurisdiction to consider the ERA claims in relation to R2,3,4, on the basis that they are not UK nationals.

[130]The starting point for consideration of this point is Lawson v Serco Ltd

2006 ICR 250

,HL which set out that UK legislation is ‘prima facie territorial’. The Employment Rights Act 1996 (‘ERA’) does not assert a territorial application and therefore it is for the Tribunal to decide. It is also to be noted that the extent of the law (ie the countries to which it applies) is not the same thing as the ‘application’ of the law, which will cover the persons who are affected by it.

[131]This concludes that claims against employers under the ERA can be brought in the UK. The issue in relation to claims against individuals under s.47B(1A) is a different point.

[132]The Tribunal considered the CA decision in Bamieh v FCO

[2020] ICR 465

. The ET had held that the claim against the employer could proceed, but that claims against co-workers who were not domiciled in the UK or based there for work purposes could not proceed. The EAT overturned this decision, saying that the test for territorial jurisdiction set out in Duncombe v Secretary of State for Children, Schools and Families (No 2)

2011 ICR 1312

, SC was satisfied. The CA received appeals from both parties. The CA held that the fact that the Claimant and her co-workers had a common UK employer was not enough to confer jurisdiction in respect of s. 47B(1A). The CA said that the individuals had never worked together in the UK. In that case the CA said they had to concentrate on the relationship between the coworkers as they were seconded to a foreign mission. The CA held that the necessary connection with UK employment law was not established.

[133]It therefore follows that the Tribunal must look, not just at the Claimant’s relationship with the UK ( both parties accept the Claimant has sufficient connection with the UK as his place of employment to be able to rely on the ERA), but also to the Directors of the company against whom he brings the claim.

[134]The CA in Bamieh (paragraph 72) said that it was not sufficient for the co- workers to have a UK employer to determine that s.47B(1A) could apply; “It is therefore apparent that the claimant's case needed to surmount two hurdles to warrant the application of section 47B(1A) of the ERA to the relationship between the claimant and her co-workers as seconded EULEX staff members. The first was extraterritoriality, itself calling for an exceptional application of the statute. Yet, by itself, extraterritoriality is not necessarily insuperable. Thus, had the mission been a purely UK mission (“UKLEX”, as referred to in argument), it might well have come within the legislative grasp. The second, and cumulative, hurdle was the need to establish a sufficient connection between the common engagement of the claimant and the co-workers at EULEX, and British employment law. To my mind that British connection is not or, at most, insufficiently, established. Essentially the same factors which led to the conclusion that the correct point of focus was the EULEX co-worker relationship between the claimant and the co-workers, underline the international—not UK—setting of EULEX and tell against the establishment of any such connection and the ERA legislative grasp extending to this relationship. In the event, the combination of extraterritoriality and the international setting of EULEX strike me as fatal to the claimant's case”

[135]In the present case the Tribunal must consider whether the work of the Directors was UK based and not based internationally, and also a connection between the Claimant and the Directors with regard to that work. Protected Disclosure

[136]In order to claim that a detriment or dismissal has been made as a result of a protected disclosure, the claimant has the burden of showing that such qualifying disclosure has been made. s.43B ERA sets out “Disclosures qualifying for protection. (1)In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [ is made in the public interest and ] tends to show one or more of the following— (a)that a criminal offence has been committed, is being committed or is likely to be committed, (b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c)that a miscarriage of justice has occurred, is occurring or is likely to occur, (d)that the health or safety of any individual has been, is being or is likely to be endangered, (e)that the environment has been, is being or is likely to be damaged, or (f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. (2)For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.” 137. ‘Information’ may come in the form of a statement, question or allegation. If it contains sufficient factual content, then it may qualify as a protected disclosure; Kilraine v Wandswoth LBC [2018] ICT 1850. It may be information which the Respondent already has. It may also be made in a cumulative way, which, when read together amounts to information. It is a question of fact for the Tribunal whether this is the case; Simpson v Cantor Fitzgerald Europe

[2021] ICR 695

[138]The employee must prove that he subjectively believed what he was disclosing tended to show a breach and that his belief was objectively reasonable, based on his experience. The authorities are clear that the Claimant does not have to be correct in his view; Babula v Waltham Forest College

[2007] ICR 1026

[139]The Tribunal also noted and took into account the authority of Kraus v Penna

[2004] IRLR 260

,which sets out that ‘likely’ in s.43B is the equivalent of ‘probable’, thus the employee must show that it is his belief that it is probable, or more probable than not, that the employer has or will fail to comply with a legal obligation.

[140]When considering reasonableness of the Claimant’s belief, the Tribunal took into account Darnton v University of Surrey

[2003] ICR 615

which indicated that it was what was known to the Claimant at the time of the disclosure which will be relevant.

[141]The final aspect of a disclosure which the Tribunal must consider is whether it was made in the public interest. The tribunal considered the guidance in Chesterton Global v Nurmohamed

[2018] ICR 731

which indicates that;a. The test requires both a subjective and objective limb.

b. There can be more than one reasonable view on whether a disclosure is in the public interest, but the Tribunal must not substitute its own view.

c. Public interest does not have to be the motivation for the Claimant to make the disclosure.

d. The Claimant may not have the view at the time of the disclosure, but have considered it since.

[142]The Tribunal considered that a disclosure may be in the personal interest of the Claimant as well as in the public interest. The Tribunal must consider whether the public interest exists as well as any personal interest.

[143]The Tribunal also took into account that the public interest does not have to be part of the worker’s motivation for making the disclosure and may be justified by the worker after the event by matters which were in his head at the time. According to Chesterton it is possible for an employee to have an ulterior motive for making a public disclosure, but still hold a reasonable belief that it is in the public interest. 144. s.43C ERA sets out that the disclosure should be to a representative of the employer. The Respondent accepted in this case that any disclosures were made to Mr Bingham on behalf of R1. The Tribunal were equally satisfied that this would also apply to R5, if required. Detriment

[145]Section 47B ERA states; “(1)A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A)A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a)by another worker of W's employer in the course of that other worker's employment, or (b)by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B)Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C)For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D)In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker— (a)from doing that thing, or (b)from doing anything of that description. (1E)A worker or agent of W's employer is not liable by reason of subsection(1A) for doing something that subjects W to detriment if— (a)the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and (b)it is reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B).] (2). . . This section does not apply where— a)the worker is an employee, and (b)the detriment in question amounts to dismissal (within the meaning of Part X). (3)For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “ worker ”, “ worker’s contract ”, “ employment ” and “ employer ” have the extended meaning given by section 43K. “

[146]Jesudason v Alder Hey Children’s NHS Foundation Trust

2020 EWCA Civ 73

, says that the concept of detriment is wide and that it must be judged from the view point of the worker. There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment.

[147]Ministry of Defence v Jeremiah

1980 ICR 13

, CA said that ‘detriment’ meant ‘putting under a disadvantage’.

[148]There requires a causal nexus between the act by the Respondent and the Protected Disclosure. The Tribunal are therefore required to consider the employer’s reason or motive for the treatment. Aspinall v MSI Mech Forge Ltd EAT 891/01 set out that the Protected Disclosure has to be “the real reason, the core reason, the causa causans, the motive for the treatment complained of”.

[149]Fecitt and ors v NHS Manchester (Public Concern at Work intervening)

2012 ICR 372

, CA, provides the test the Tribunal must apply as, whether the Protected Disclosure materially (in the sense of more than trivially) influenced the employer’s treatment of the whistleblower.

[150]The Tribunal must take into account Bolton School v Evans

2006 IRLR 500

, EAT which stated that the conduct of the employee and his Protected Disclosure are separable and therefore the reason for the detriment needs to be considered carefully. Liability for Individual Respondents

[151]The Tribunal noted that s.47B(1) protects the employee from acts on the part of the employer on the ground that he made a protected disclosure.

[152]Whereas s.47B(1A) adds to that protection, the right not to be subjected to a detriment done by another worker, or agent of his employer.

[153]LB Harrow v Knight set out the test for detriment under s.47B(1) as; - the claimant must have made a protected disclosure - he must have suffered some identifiable detriment. - the employer, worker or agent must have subjected the claimant to that detriment, - the act must have been done on the ground that the claimant made a protected disclosure.

[154]S.47B(2) says that s.47B does not apply where the detriment complained of amounts to dismissal. Such a claim must be made under s.103A which makes it automatically unfair to dismiss if the sole or principal reason for the dismissal is the making of the protected disclosure. However, s.103A applies only to employees, whereas s.47B applies also to workers.

[155]Claims under s.47B are subject to a less arduous causation test. Under s.47B a detriment is unlawful if it is done ‘on the ground of’ a protected disclosure. Under s.103A the protected disclosure must be the sole reason or principal reason for the dismissal. 156. s.47B(1B) sets out that workers and agents of the employer can be individually liable for whistleblowing detriments. The Tribunal therefore had to consider whether R2,3,4 could be liable under s.47B for the dismissal of the Claimant.

[157]Timis and another v Osipov (Protect Intervening)

2019 ICR 655

, CA said that the detriment under s.47B(1A) is not subject to 47B(2), so whilst an employee cannot bring a detriment claim for dismissal against an employer, such a claim can be brought against an individual worker or agent. The decision also referred to the fact that s.47B(1B) sets out that the employer would be (vicariously) liable for the actions of the individual worker/agent. Thus a claim for dismissal as a detriment could be brought against the Directors of the company and any liability found, would also rest with the company.

[158]However, a more recent EAT decision in Wicked Vision v Rice 2024, EAT 29, said that the decision in Osipov is limited to s.47B(1A), that individual workers/agents can be liable, but that this did not extend to s.47B(1B) and therefore the company would not be vicariously liable for such actions. The EAT considered that such a vicarious liability claim would be barred by s.47B(2). The EAT preferred to consider whether the claim could be brought under s.103A. If it could be so brought, then the EAT said it was wrong to allow the claim for detriment to land on the employer under s.47B(1B). It is understood that this case is subject to appeal to the Court of Appeal, but has not yet been heard. Automatically Unfair Dismissal

[159]S.103A ERA states; “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

[160]The question for the Tribunal is whether the reason (or principal reason) for the Claimant’s dismissal was that he made a protected disclosure, as set out in Abernethy v Mott, Hay and Anderson

[1974] ICR 323

, CA The Tribunal must consider what led the decision maker to act in the way they did.

[161]The burden of proof is on the Claimant to show that this was the reason – Ross v Eddie Stobart Ltd EAT 0068/13, as he does not have the two years of qualifying service to warrant a s.98 ERA claim for unfair dismissal.

[162]The Tribunal considered the issue of whether R2,3,4 could be liable for their actions under s.47B ERA, as they are not UK nationals.

[163]Taking into account Lawson v Serco, the Tribunal were satisfied that the Claimant could bring claims against R1 in the UK. However, further consideration had to be given to whether claims could be made against R2,3,4 (‘the Directors’).

[164]The Tribunal considered whether the connection between the Claimant and the Directors was UK based and whether the employment law which applied around that relationship had sufficient UK connection.

[165]The only business connection between the Claimant and the Directors was in relation to R1, a company which was wholly based in the UK and for whom the Claimant was seconded with his usual place of work as the UK. All the Directors flew to the UK from time to time, to meet with each other and the Claimant throughout his employment (up to the point of Covid lockdown in the UK). There was no evidence of meetings having happened anywhere else. Evidence of communication via email or WeChat or WhatsApp did not persuade the Tribunal that business was being fundamentally conducted outside of the UK.

[166]In considering Bamieh, the Tribunal also took into account the Companies House register for the Directors, in which each of them had a correspondence address in the UK. As Directors of a UK company, the Directors were bound by the duties outlined in the Companies Act. None of the Directors asserted that they did not have a connection with the UK with regard to their dealings with the Claimant, nor did they deny that they were bound by UK law in their obligations as Directors.

[167]The Tribunal therefore concluded that there was sufficient evidence of a connection between the Claimant, the Directors and R1 that the territorial scope of the ERA extends to the Directors when dealing with the Claimant in his role as CEO of R1. Jurisdiction

[168]The Tribunal was also asked to consider whether R1 can be held responsible for the actions of directors of the company (R2,3,4) where they commit acts of detriment under s.47B(1A)

[169]As set out above at paragraphs 157-158 there are opposing views taken by the CA and the EAT at this time as to whether R1 can be held liable under vicarious liability (s.47B(1B) for the action of dismissal by any of R2,3,4). This Tribunal considers that the CA is the superior binding court and it is unknown at this time whether the CA will uphold or overturn its own views, if and when Wicked Vision comes before it. Until such a decision is taken by the CA, this Tribunal considers itself bound by the current decision of the CA. On that basis, the Tribunal is able to consider the allegation of dismissal by R2,3,4 as a detriment and that R1 could be liable for their actions. TIME LIMITS

[170]The earliest detriment that the Tribunal were asked to consider was dated 3 April 2020. The prima facie time limit was therefore 2 July 2020. Both EC certificates provided to the Tribunal were dated prior to 2 July 2020. There was therefore no time limit issue in relation to any of the allegations.

[171]The Tribunal noted that the issues to which the dispute on time limits arose were removed by the parties from the list of issues and not considered by the Tribunal. Protected Disclosures

[172]The Tribunal first considered whether the incidents set out in the schedule of the agreed List of Issues amounted to protected acts under s.43B ERA. There were a large number of communications with regard to a wide range of topics which the Claimant asserted were protected disclosures under s.43B. The Tribunal found it difficult to identify the dates of each of the protected disclosures as the Claimant was not specific in many of his assertions. Whilst it was accepted by the Respondents that discussions did occur and these topics were raised, neither party could be specific about dates on which they had happened. This made identifying specific disclosures very difficult. At the hearing, the parties agreed that these should instead be grouped into five themes, rather than considered individually. The Tribunal have accepted this suggestion and considered the evidence in relation to each of the groupings, before making the following decisions

[173]Firstly, the Tribunal considered whether a director’s duty is a legal obligation. They concluded that under the terms of the Companies Act 2006 a director of a company must act in accordance with a company’s constitution and within the powers conferred to him. A director also has a duty to act in a way which he considers, in good faith, would be most likely to promote the success of the company. This duty must take into account the interests of the employees, and customers and also the company’s impact on the community and its reputation. Specific duties under the Act include acting with independent judgment, using reasonable care, skill and diligence and avoiding conflicts of interests.

[174]The Tribunal were satisfied that a breach of any of these duties, or breach of the company’s constitution may therefore amount to a breach of a legal obligation. In some cases it may amount to a criminal offence, but no such allegation was made in relation to the points raised in this case. The Tribunal were therefore satisfied that a breach of a listed director’s duty may fall within s.43B(1)(b) ERA. Tech Transfer Issue

[175]The Tribunal considered it difficult to be sure of what was said by the Board and the Claimant, on the basis that there were no notes of any of the monthly finance and operations meetings. Nor was there any informal record of what was discussed. Without these, it was not possible for the Tribunal to be clear about what was, or was not, discussed on any particular occasion. The Tribunal was left to consider the witness evidence alone and to reach conclusions based on its views of the veracity of the witnesses. Given the size and value of the company, the Tribunal were concerned to see that no documentary records of the management decisions of the company appear to have been kept.

[176]The Claimant’s evidence was that if the technical knowledge of the products were handed to the Chinese government, this could be dangerous, as they have military application. It would also allow the Chinese government to add to the product, potentially with bug software or spy software. Mr Kao acknowledged that the product had these capabilities and uses and therefore the directors had a duty to ensure the technology was not used for nefarious purposes.

[177]The Respondent accepted that the Claimant raised this issue frequently after December 2019. It is clear from communications between the Claimant and others, that he was not happy about CR having more involvement in R1 than was usual as a limited partner and that he did raise this in correspondence. It was not disputed that CR regularly visited R1 offices in the UK, albeit informally.

[178]However, the messages and emails shown to the Tribunal do not specifically say that the reason for the Claimant’s unease with transferring technology to China is that it would amount to a breach of a legal obligation by the directors of the company. The Claimant’s resistance came from the fact that he did not want to give away licences for the company’s product, nor did he want the technology to reach the control of the Chinese government.

[179]The Tribunal also noted that at the same time, the Claimant was negotiating with THG (a Chinese group with Chinese government connections) to acquire further investment and that part of the terms for such an agreement would involve the transfer of some of the technology of the business to China.

[180]At a meeting in China on 3 March 2019, where Lining Wang translated for Zhigang Wang (Head of CR), the issue of tech transfer was discussed. The Claimant told Mr Kao about this shortly after it happened and therefore Mr Kao was aware that CR wanted there to be a tech transfer and was aware that the Claimant opposed this idea. Mr Kao was annoyed that this meeting took place without anyone from CB being present.

[181]The Claimant’s evidence was that a potential deal with Hikvision (another Chinese group/company) would have led to tech transfer and that he was not opposed to this. The Tribunal therefore concluded that the Claimant did not regard the transfer of tech knowledge to China as being an unlawful act or breach of a legal obligation. It was the fact that he did not want this to happen with CR and his preference that it had to be approved by way of a UK export licence.

[182]In August 2019 the Claimant told Woz Ahmed in an email, that it was bad business to give away the tech for nothing. The Tribunal were satisfied that the Claimant’s resistance to tech transfer was not due to concerns about control by the Chinese government, nor to breaking any UK law, but about the fact that R1 should not give away knowledge which it would otherwise sell by way of licence.

[183]Later evidence, which was not known to the Claimant at the time showed that within CR at around this time, discussions were continuing about how tech could be brought into China.

[184]The Tribunal therefore concluded that the Claimant did provide information to the Board of R1 about the issue of tech transfer, probably starting in March 2019, but certainly after December 2019. The Tribunal were not satisfied that the Claimant had a reasonable belief that raising this matter was a matter of public interest. His reason for raising this was one of business acumen and trying to ensure that the business could make a profit from their tech knowledge and not merely hand it over to the Chinese government.

[185]The Tribunal were also not satisfied that the Claimant believed that the information showed a breach of a legal obligation. The Claimant made no reference to it being unlawful, or a breach of director’s duties to give away tech knowledge, rather than licence or sell it.

[186]Ultimately the Tribunal considered that the Claimant repeatedly raised this point, as he wanted to ensure that R1 made money from its tech knowledge and did not pass up the opportunity to continue to do so. This was not a protected disclosure. Takeover Issue

[187]The Tribunal considered whether there was evidence of information being raised by the Claimant which tended to show that the takeover of R1 by CR amounted to a breach of a director’s duties and hence a breach of a legal obligation.

[188]Mr Bingham accepted that at the point where the Claimant was recruited, he had told the Claimant that R1 would remain in the UK, as a UK company. He also admitted that he had made the same promise to the UK Government, although he suggested that any such promise would only last for 12 months.

[189]The Claimant’s concern was that to allow CR to place directors on the Board of R1 would allow the Chinese Government to take control of a UK company and would lead to the company being removed to China. The Claimant had told customers that was not the current position and would not change. The Claimant saw the UK domicile of R1 as a matter which set R1 aside from its competitors, as it placed it outside control of CFIUS in the USA. The evidence supported the Claimant having discussed this with Mr Bingham and the Board of R1 from December 2019 onwards.

[190]The basis of the Claimant’s case, was that to allow CR to take control of R1 by way of this input of directors, was a matter which would be unlawful in the UK. The Tribunal was shown no evidence to support this asserted breach of a legal obligation, nor that it would be a criminal act. The Claimant did not show any basis on which he reasonably could have taken that view and the Tribunal therefore concluded that he did not do so. The Claimant was an experienced businessman with an understanding of the duties of directors and therefore also understood where there was no such breach of a legal obligation or director’s duty. It was therefore not reasonable in the circumstances for him to assert that R1, 2, 3, 4 were going to breach a legal obligation in allowing the directors to be added to the R1 board.

[191]A reference is made here to legal advice provided to R1 and R5.

[192]The Claimant had expressed repeatedly his opposition to this proposal, but this was not on the basis that it amounted to a breach of a legal obligation – more on the grounds that it would lose the company business with those who then perceived it as being a Chinese owned and controlled company. As an experienced CEO, the Claimant may not have agreed with the proposed action by the Directors, but his personal dislike of the Director’s plan for the company does not mean that their actions amount to a breach of a director’s duty. Even if the actions of the directors ultimately ruin the company, they would not be in breach of their duties, if they believed they were acting in the best interest of the company.

[193]The actions of the Claimant to try to make the issue into a breach of director’s duties were multiple and complex, but did not change the fundamental point – this was a disagreement over the direction in which to take the company.

[194]Whilst the Claimant spoke to the EMB and explained his concerns in an attempt to persuade them to support him, the Tribunal viewed the EMB as experienced business people who were able to assess the situation and form their own view.

[195]The Tribunal therefore concluded that neither the previous communications, nor the email of 30 December 2019 amounted to a protected disclosure, on the basis that it did not contain information which indicated the Claimant’s reasonable belief that any of the s.43B (1) requirements had been met. RISC-V

[196]The Claimant believed that development of RISC-V would be a key part of the strategy for the recovery of the company. He also believed it needed to be done quickly to take advantage of the market. The Claimant first highlighted this to the R1 Board in June 2019.

[197]Mr Kuo’s questioning of the Claimant started in September 2019 about the basis for his assertion that RISC-V would be successful. He wanted to have details about how RISC -V would succeed before agreeing that CR would invest more money in R1. It was accepted by Mr Kao that the Claimant could not provide the type of assurance Mr Kuo was looking for without starting to undertake the project work; for which he needed the investment sums. Mr Bingham also acknowledged that the work would require a team of people to work on the validation/customer engagement that Mr Kuo was requesting. The Claimant perceived Mr Kuo’s repeated requests for details as obstructive and a conflict of interests due to Mr Kuo’s interest in other Chinese Government projects which supported MIPS, a competitor product to RISC-V.

[198]The questions posed by Mr Kuo were answered by the Claimant’s team and the EMB. By 24 November 2019 Mr Kuo still had concerns and referred to the fact that the answers he was provided with lacked detail. Further questions led to significant time and effort including work over the Christmas period of 2019, to provide further answers, which the Claimant saw as being an intentional inconvenience.

[199]As a result of this the relationship between Mr Kuo and the Claimant was tense and deteriorated when the Claimant found out that in late 2019 Mr Kuo had taken legal advice about dismissing him. From this point forward the Claimant saw Mr Kuo as an opponent force, whom he had to try to detach from the other members of the Board, in order to ensure that his preferred business route could be followed.

[200]On 25 November 2019 the Claimant wrote to Mr Bingham raising issues about his equity agreement, but then went on to raise concerns about Mr Kuo’s behaviour with regard to his director’s duties. The Claimant highlighted that Mr Kuo did not attend meetings on time and that he wanted to have additional meetings with the Claimant to those of the CB Board. The Claimant also referred to Mr Kuo’s notes which he describes as “oddly political”. The Claimant then suggested that some reminders of director’s duties should be sent to all the Board. This spelled out the Claimant’s view that Mr Kuo was not adhering to his director’s duties and not acting in the best interests of R1. The Tribunal concluded that this email was criticism of Mr Kuo due to the Claimant’s frustration that he was delaying the Claimant’s plan to launch RISC-V. This was a step in the Claimant’s strategy to negate Mr Kuo’s impact on the other Directors.

[201]However, the Claimant did not assert that failing to support RISC-V amounted to a breach of a director’s duty, instead he asserted that Mr Kuo had a conflict of interests, which was itself a breach of a director’s duty.

[202]The Tribunal considered that the Claimant attempted to turn Mr Kuo’s lack of support for him into an issue about Mr Kuo’s behaviour as a director of the company. However, the Tribunal considered that this arose due to the Claimant’s desire to have RISC-V as a central business strategy.

[203]The Tribunal were satisfied that the 25 November 2019 email amounted to a protected disclosure about Mr Kuo potentially breaching a duty not to have a conflict of interests, but did not constitute a protected disclosure about the development of RISC-V itself. There was no information that suggested that a failure to develop RISC-V amounted to a breach of a director’s duty. The Claimant’s complaint was that Mr Kuo was making it difficult for the Claimant to pursue his strategy.

[204]Further, the Tribunal concluded that by 7 January 2020, Mr Kuo believed that the Claimant was overstating the importance of RISC-V, when the Claimant suggested that the R1 would ‘die without it’.

[205]By mid January 2020 the Claimant had indicated to staff in China and to Mr Bingham that he perceived Mr Kuo to be anti- RISC-V and that he was unsupportive of the Claimant and his strategy. The issues raised by the Claimant were therefore critical of Mr Kuo and his interference in the Claimant’s plan to develop RISC-V, not of the fact that failure to develop RISC-V was a breach of a duty. Mr Bingham and Mr Kao both accepted in evidence to the Tribunal that the Claimant raised issues to them about Mr Kuo’s conflict of interests between R1 and Wave, a company whom Mr Kuo had an interest in, which was developing MIPS.

[206]On 12 February 2020 a Board meeting approved the RISC-V project. Mr Kao was not present at that meeting. The following day Mr Bingham told the Claimant to stop hiring for RISC-V. Even at this point the Claimant did not refer to any interference in his RISC-V project as being a breach of director’s duties.

[207]The Claimant emailed Mr Rayfield on 17 January 2020, responding to his enquiry, telling him that that Mr Kuo was sabotaging RISC-V and asking him to keep the team going, whilst he tried to sort out the delay. He then also emailed Mr Rayfield about Mr Kuo, saying that Mr Kuo was causing the team in China to be concerned about whether their work would continue. These emails do not amount to protected disclosures.

[208]The Tribunal also noted that the Claimant raised issues about Mr Kuo’s investment in MIPS and about Mr Kuo’s wife having a hedge fund which appeared to have an interest in MIPS. It was clear that the Claimant thought that Mr Kuo was hiding his interest in MIPS. As a result of the Claimant raising these issues, an investigation was launched into how Mr Kuo was obtaining his information. The evidence of Mr Bingham and Mr Kao was that they both considered Mr Kuo’s actions to be suspicious. The Claimant had drafted a directors’ duties letter with legal help to send to Mr Kuo just before he was dismissed.

[209]The Tribunal considered whether the Claimant had provided information and were satisfied that the information passed to Mr Bingham was that Mr Kuo was in a potential conflict of interests. The Tribunal were also satisfied that the Claimant was reasonable in his view that Mr Kuo may be in a conflict of interests. However, the Tribunal did not consider that this allegation was raised in the public interest, nor were they persuaded that the Claimant reasonably believed that he was raising this matter as a point of public interest. The Tribunal therefore concluded that these did not amount to protected disclosures.

[210]In contrast, the Tribunal were satisfied that on 6 April 2020 the Claimant raised for the first time that there were legal issues related to RISC-V. (4748) The Claimant said “ These actions will also bring into question whether all of Canyon Bridge partners are acting consistent with their duties as UK directors to ensure all board decisions are in of (sic) the best interest of the company and all stakeholders….. In fact, as repeatedly stated, the EMB and I are very worried that being controlled by the Chinese government will be fatal for the company”. He went on to say “ If Canyon Bridge and China Reform continue down the path of making Imagination a Chinese government controlled company, as a friend and long-term colleague, I would strongly suggest that Canyon Bridge as an entity, and each Canyon Bridge employee individually, especially the partners who are also statutory directors of a UK company, seek legal advice prior to the situation being made public when filed at Companies House, which will trigger immediate exploitation by our competitors, and questions from our partners and customers, resulting in irreparable damage to the company”. The Tribunal were satisfied that this letter would amount to a protected disclosure . Redomicile

[211]The Tribunal accepted that this issue arose from the investment required to fund RISC-V. The Claimant engaged with THG as a potential investor and negotiated with them in respect of ultimately floating R1 on the STAR stock exchange in Shanghai, China. The Claimant was aware that a prerequisite to such a flotation was that the company had to be domiciled in China. At the time the Claimant negotiated with THG about their investment, he made no opposition to the idea of floating on the STAR market. On 6 September 2019 (1252) the Claimant’s email proposed that a location for a China headquarters would need to be found and that a Vice-President for China would need to be recruited. This evidence contradicts the Claimant’s submission that redomiciling the company to China was a breach of a legal obligation by the Directors of R1.

[212]On 4 March 2020, the advice from UBS bank was received by the Claimant which indicated that to list on the STAR stock exchange, R1 would have to show that both research and development and the key intellectual property of the company were held in China. The Claimant did not oppose this, or raise it with the R1 directors as being a potential breach of duties. In evidence the Claimant stated that it was not an objection in principle, but only in relation to the plan of CR.

[213]The Tribunal were therefore satisfied that at this time, the Claimant did not regard the concept of redomicile to be one which was fundamentally in breach of a legal obligation. The Tribunal also accepted that the Claimant spoke about this issue with Mr Bingham and Mr Kao regularly, however, as no notes of the meetings were kept, the Tribunal could not be satisfied that the Claimant informed Mr Bingham and Mr Kao of any concern about a breach of a legal obligation. Mr Kao’s evidence accepted that the Claimant had said as early as August 2019 that redomiciling the company to China, would lead to control by the Chinese Government. This was said in relation to the proposed investment by THG.

[214]The Tribunal concluded that the Claimant’s concerns which were aired repeatedly focused instead on the fact that it would be more complicated and time consuming for the Claimant to receive his payment from the sale of the company, due to problems with removing money from China.

[215]However, the Tribunal consider that the Claimant’s position changed; The first letter from the Claimant to Mr Bingham which sets out specific concerns about a breach of directors’ duties in relation to redomiciling to China, is dated 6 April 2020 (4744). The same letter also makes reference to the potential impact to the UK and to national security.

[216]The Tribunal were aware that the Claimant had seen legal advice XXXXXXXXXXXXXX. The Claimant also believed this to be counter to the promise made by CB at the time they purchased R1. The Tribunal concluded that whilst the Clamant had been in favour of redomicile when THG were proposing it, he changed his view on this when it was proposed in relation to CR.

[217]Taking into account all the evidence, the Tribunal were satisfied that by 6 April 2020 the Claimant was concerned about legal obligations and that it was reasonable for him to believe at that time, that a redomicile to China may amount to a breach of a director’s duty.

[218]The Tribunal were satisfied that on 6 April 2020,this did amount to a protected disclosure as it clearly indicated information about what the Claimant saw then as a potential breach of a legal obligation. Directors’ Appointment

[219]The Claimant’s letter on 6 April 2020 to the Board states that the addition of the Directors nominated by CR amounts to a transfer of the company to the control of the Chinese Government. The Claimant’s belief was that as these Directors would have a majority vote and the ability to dictate the appointment of senior managers, this would hand control to the Chinese Government. The Claimant also made it clear that he believed this to be a financially inappropriate action by the directors, as it would lead to the loss of customers, who would not want to be associated with such a company.

[220]The Tribunal concluded that the Claimant did not expressly say that his reasons were connected to any breach of a legal obligation and this must be distinguished from his stated opinion that it would be bad for business.

[221]The Tribunal also noted that the Claimant was willing to agree to THG placing a director on the board as part of their investment in R1. Given that THG are also backed indirectly by the Chinese Government, this showed to the Tribunal that the Claimant was not concerned at the idea of Chinese Government figures becoming directors of R1, per se.

[222]Furthermore, the evidence also showed that at the point where it was suggested that one director from CR would be allowed to join the board, the Claimant raised no concern. At that point, the Claimant said that he was confident that R1 lawyers would not allow the company to do anything unlawful.

[223]The Claimant’s position changed by the time it was proposed to place 4 directors on the Board from CR. The Claimant outlined this in his letter on 6 April 2020 which shows his belief (4739) that a national security regime would be triggered and there was a risk of a full Phase 1 investigation by the UK Government.

[224]The Tribunal were satisfied that the Claimant held a reasonable belief, XXXXXXXXXXXXXXXXXXXX, that if the CR appointed directors were to join the Board of R1, it is likely that the UK and/or US government would investigate the actions of the company. This was something which R1 had avoided up to this point.

[225]The Claimant’s evidence with regard to public interest was that he believed there was public interest in his disclosure, to the extent that he told members of his team that directors imposed by CR would damage the company. The Tribunal concluded that there was not a reasonably held belief, as the Claimant had no grounds to consider that this was a matter of public interest. Nor did he have evidence of any likely harm to the company. There was therefore no evidence which suggested a legal obligation would be breached by these actions. The Tribunal concluded that this did not amount to a protected disclosure. Detriments

[226]Having concluded that the Claimant made protected disclosures in relation to the issues of RISC-V and redomicile only, the Tribunal went on to consider whether any of the detriments alleged had occurred and whether the actions of the Respondents were due to the fact that the Claimant had made protected disclosures. i) Bonus payment on 3 April 2020 less than discussed with Mr Bingham

[227]The Claimant had agreed a contract in October 2019, with R5 to be Chief Executive Officer of that company (1603). R5 had been set up as a US company in order to employ the Claimant in the US. However, he was immediately seconded to work for R1, a UK company which wholly owned R5 (1626). R1 accepted that it takes responsibility and any potential liability as the employer of the Claimant. The Tribunal therefore address R1 as the employer, even though technically the contract is with R5.

[228]The contract states at paragraph 5.1 as follows; “ The Executive’s base salary is $500,000 per annum (inclusive of any director’s fees payable to him by the Company of any Group Company)(“Salary”).”

[229]At paragraph 6.1 as follows; “ The executive will be eligible to participate in a discretionary annual performance bonus plan in accordance with the rules of the plan in existence from time to time (“Bonus Plan”). The Company will provide the Executive with the rules of the Bonus Plan and the details of any performance criteria. The total target bonus opportunity for Executive under the Bonus Plan shall be equal to 100% of Executive’s Salary. The Plan is non-contractual and subject to the rules in place at any given time”.

[230]The Compensation Philosophy 2019 Scenarios Planning in November 2019, set out that the Claimant was suggesting that given that the deal with Apple Inc added significantly to the value of the company, but was attributable to a small number of people so should not be placed in the pool for bonus (1679). Mr Bingham had referred to the Claimant’s handling and the outcome of the Apple negotiations as “masterful”. The document also outlined that the EMB were operating on a target of “1.5 – 2 x on- target for the top 10% of employees, independent of grade”.

[231]In March 2020, the Claimant was awarded a bonus of $500,000. This is a sum equal to 100% of his salary. The Claimant asked Mr Bingham, for a higher bonus to reflect the success of the Apple negotiation and suggested that £1-3 million was appropriate. This figure was not agreed by Mr Bingham.

[232]The Tribunal concluded, based on the documentary evidence and the evidence of the Claimant and Mr Bingham with regard to their discussion that the Claimant was entitled to the same bonus as other staff. As a top achiever in the company he ought to have received 1.5- 2x his annual income. (i.e $750,000 to $1 million).

[233]The Claimant was keen to ensure a separate bonus for having finalised the Apple deal. However this was never finalised and there was no evidence of any agreement on how much that would be.

[234]Although it was discussed between the Claimant and Mr Bingham in early April 2020 a bonus was not paid between 20 March and 6 April, as Mr Bingham did not have the agreement of the other partners. The Tribunal concluded that the reason for non-payment of any additional bonus in excess of $500,000 was because the Board had not met and had not agreed to any further payment. The Tribunal concluded that this was not related to the Claimant having made any protected disclosure, but due to a lack of organisation and agreement on the part of the Board. Events in April subsequently took over and this issue was never discussed or resolved. This allegation is therefore dismissed.

[235]The Tribunal note that at paragraph 6.2(C) of the contract with R5, the Claimant agreed that; “ notwithstanding the rules of any Bonus Plan, the Executive agrees that he will not be eligible for any bonus (pro-rated or otherwise) in respect of a year or other relevant period in which his employment terminated (for any reason and whether termination is lawful or unlawful)”. ii)Dismissing the Claimant on 10 April 2020 and/or terminating his employment with immediate effect on 10 April 2020.

[236]The Tribunal considered that the burden of proof lay on R2,3,4 to show the ground on which they acted. They took into account that they must look for ‘the real reason, the core reason, the causa causans, the motive for the treatment complained of’. The protected disclosures must be a material factor in the decision to dismiss.

[237]The Tribunal concluded that the actions of R2,3,4 on 10 April in terminating the Claimant’s employment were due principally to the protected disclosures which the Claimant had made on 6 April 2020.

[238]The decision was made by R 2,3,4 who acted as the agents of R1 (and R5). Their reasons for doing so, are set out below at paragraphs 259 to 261. However, the Tribunal considered the documentary evidence as follows to be significant:(i) On 7 April 2020 (5182) Mr Bingham forwarded the resignation withdrawal email only to Mr Kao (and not Mr Kuo);

(ii) the same day (5129) Mr Kuo recommended to Mr Bingham and Mr Kao that the Claimant’s resignation be accepted;

(iii) the same day (5137) Mr Kao suggested to Mr Bingham that the Claimant should be dismissed and around that time (5138) he and Mr Bingham discussed the Claimant with CR;

(iv) on 8 April 2020 (6369) Mr Kao send the Claimant’s resignation withdrawal request to CR;

(v) on 9 April 2020 (5343) Mr Kao and Mr Bingham discussed the Claimant again with CR, before Mr Bingham dismissed the Claimant on 10 April 2020. iii)Not permitting the Claimant to withdraw his resignation and/or accepting his resignation on 10 April 2020.

[239]The Claimant’s resignation on 6 April 2020 cannot be unilaterally retracted, it can only be withdrawn by consent, see Willoughby v CF Capital

[2012] ICR 1038

[240]The Tribunal concluded that the call between Mr Bingham and the Claimant on 6 April 2020 resulted in Mr Bingham’s acceptance on behalf of R1 that the Claimant should withdraw his resignation. The Tribunal concluded that this was consistent with Mr Bingham then contacting Mr Harold and instructing him to draft an email to all staff saying that everything was back to normal. He also requested such an email be prepared for external communication.

[241]The Tribunal therefore concluded that there was no evidence to support an allegation that no permission had been given; this detriment did not occur and this allegation is dismissed. Iv)Dismissing the Claimant’s wife on 30 April 2020

[242]The dismissal of Mrs Black occurred after the Claimant’s dismissal. The Tribunal found that there was a Teams meeting between Mr Bingham, Mr Kao and Mr Kuo where they discussed whether sensitive information could reach the Claimant, possibly via Mrs Black. They decided that that they could not maintain confidentiality with her in post as the VP Business Operations.

[243]A meeting was held at which Mrs Black was told that her dismissal was not related to her conduct or capability, but due to her association with the Claimant and the risk of leaks to him.

[244]In Tiplady v City of Bradford Metropolitan District Council

[2020] ICR 965

,CA, the Court of Appeal expressed the view that for a detriment to come within the scope of s.47B it must be a detriment to which the worker has been subjected in the ‘employment field’.

[245]The Tribunal asked the parties to provide written submissions on this point, which were taken into account by the Tribunal in their deliberations; The Claimant submitted that the dismissal of his wife was a detriment to him and that he did so in his capacity as an employee of R1. He submitted that the only relationship he had with R1 was an an employee and therefore the detriment could only have been inflicted with regard to the ‘employment field’. Finally, the Claimant asserted that the fact that Mrs Black’s dismissal occurred after his, does not prevent the detriment being connected to his employment, Woodward v Abbey National Plc

2006 ICR 1436

[246]The Respondent submitted that the Claimant had provided no evidence, nor made any submission on how this dismissal was a detriment to him. They submitted that the Claimant had been emphatic that his wife’s employment was not dependent upon or related to his employment as CEO and therefore he could not now suggest that he suffered a detriment as a result of her dismissal. They submitted that any detriment did not arise in the employment field, but as a husband/family member of Mrs Black.

[247]The Tribunal concluded that Mrs Black was dismissed due to the concerns of R1 and the directors about confidentiality and that this arose from the Claimant’s dismissal.

[248]The Tribunal noted that in Tiplady the Claimant had another type of relationship with the Respondent, i.e as a householder within the council area. In the present case, the Claimant’s only connection to the Respondents was as an employee and therefore he could not have any alternative connection with R1. The fact that his employment relationship had ended before Mrs Black’s dismissal, does not prevent him from suffering a detriment. Hence the only possible relationship between R1 and the Claimant was in the ‘employment field’.

[249]The Tribunal were satisfied that the evidence showed that the household income was reduced by her dismissal, a matter which impacted the Claimant as part of that household.

[250]The Tribunal also considered that the reason given by the Directors was the dispute with the Claimant and his dismissal, which the Tribunal has found to be connected to his protected disclosure. 251. . The Tribunal concluded that the dismissal was therefore a detriment to the Claimant and was carried out by R1,R2, R3, R4. In the employment field and was connected to his protected disclosure. v)Assisting with or providing information in respect of the Article (as defined in the Particulars of Claim)

[252]The Tribunal had to consider whether any of the Respondents had in fact provided information in relation to the EE Times article published on 30 April 2020.

[253]The evidence of Mr Kuo was that he had an email from a journalist (which had not been disclosed to the Tribunal) which led Mr Kuo to provide information to the journalist, including the names of potential investors in R1 who were aware of the situation in April 2020, but that this was all information which was already in the public domain.

[254]The Claimant’s assertion that the sources were internal to R1 had no supporting evidence and was a bare allegation. Upon detailed examination of the article, it referred to other previous publications about R1.

[255]The Tribunal noted that information from Reuters on 28 April 2020(5613) was also negative about the Claimant’s tenure with R1.

[256]The Tribunal concluded that Mr Kuo’s evidence was insufficient to establish that it was he who provided any negative information about the Claimant. There is no evidence which indicates that any of the Respondents were responsible for the content of the article which are said to come from an unnamed source.

[257]The Tribunal therefore did not find that the Claimant’s detriment in this article was an action of any of the Respondents. Furthermore, the Tribunal were satisfied that it could not be inferred that any information given was due to the Claimant’s protected disclosures. By the time the article was printed, the Claimant had been dismissed and was in dispute with the Respondents. s.103A Automatically Unfair Dismissal

[258]The Claimant asserted that his dismissal was automatically unfair as it was due to the fact that he had made protected disclosures. The Tribunal have held that the Claimant made protected disclosures in relation to the issues of i) redomicile and ii) RISC-V/PK director’s duties.

[259]The Tribunal found that the Claimant’s resignation was withdrawn with the consent of Mr Bingham on behalf of R1 on 6 April 2020. The Tribunal consider that that this was agreed in order to ‘steady the ship’ as the resignation of the Claimant and others had shocked the Respondents and they were keen to ensure that they were not seen publicly to have any management difficulty internally.

[260]However, as the Claimant sought to obtain confirmation in writing of R1 agreement that the resignation was withdrawn during 7-8 April 2020, it became increasingly clear that Mr Bingham, Mr Kuo and Mr Kao saw this as an opportunity to reconsider their position with regard to the Claimant, whom they considered had been disloyal and had acted against the best interests of R1.

[261]On 10 April 2020 Mr Bingham phoned the Claimant to tell him that “the board concluded last night that we, that we did have to separate from you..” Shortly after that an email was sent to all staff to say that “Ron has ultimately stepped down as CEO.”

[262]The Tribunal concluded that Mr Kuo’s emails on 7 April which recommended to his fellow directors that “we accept Ron’s resignation immediately. Based on the events of the last few days, coupled with multiple other issues during the course of his tenure I do not see any scenario where Ron is an appropriate executive for Imagination. Moreover my views and convictions about this matter are only reinforced by the lengthy ‘manifesto’ sent by Ron, which included numerous allegations of impropriety against Imagination, Canyon Bridge and our investors. It is hard for me to see a path where we can work together in a professional manner going forward”.

[263]The Tribunal were satisfied that this evidence showed that Mr Kuo’s view was that the Claimant should be dismissed for his ‘allegations of impropriety’ and his manifesto (a reference to the email on 6 April 2020). The Tribunal were satisfied that this amounted to references to the protected disclosures made by the Claimant.

[264]The Tribunal considered that the making of the protected disclosures was not the only reason for the dismissal. Part of the reason for their decision was also to do with the way in which the Claimant had conducted himself on 6 April and the fact that Mr Kuo, Mr Kao and Mr Bingham saw the Claimant’s actions as manipulative and potentially harmful to the company and Mr Kuo individually. However, the Tribunal were satisfied that the making of the protected disclosures on 6 April 2020 was the principal reason for the dismissal.

Remedy

[265]The parties asked the Tribunal to consider their factual decision on what arrangement would have been reached in relation to the Claimant’s equity, whether the Claimant would have remained long enough to benefit from that and what the fortunes of R1 would have been if the Claimant had stayed.

[266]The Tribunal found that this amounted to re-writing the history of this case and R1 and that we were not in a position to be able to do that with any evidential background.

[267]The Tribunal did find that the Claimant and Mr Kuo disagreed over the direction in which to take R1 business, for an appreciable time. It was clear to the Claimant and others that CR were unhappy with the Claimant’s resistance to their plans to control R1.

[268]The Tribunal also found that the Claimant’s actions, in co-ordinating the actions of a number of members of the EMB was a significant event, which, possibly with CR’s pressure, changed the view of Mr Kao and led him to believe he could no longer support the Claimant. Following this, between 7 and 10 April 2020 Mr Bingham accepted that he would have to move away from the Claimant.

[269]The Tribunal also found that from December 2019, Mr Kuo was actively pursuing advice to dismiss the Claimant.

[270]The Tribunal concluded that had the meeting in April 2020 not taken place and CR had not put Directors on the board of R1, the Claimant may have continued in his role. However, Mr Kuo would have remained very wary of the Claimant and unsupportive of his business decisions and Mr Kao would not have continued to support the Claimant either.

[271]The Tribunal considered that the Claimant’s ability to move forward with the RISC-V project would not have been secure and that it is more likely than not that some further conflict between the Claimant and the Directors of R1 would have arisen and that the Claimant would have had only Mr Bingham to support him.

[272]The Tribunal took into account the nature of the industry and the evidence of how quickly R1 was able to move and the fact that the Claimant was keen to ensure that RISC-V went to market as soon as possible in order to compete with ARM, the Tribunal considered that a further conflict would have arisen between the Claimant and the Directors within a period of 6 months of the date of dismissal, which would be likely to have resulted in the Claimant’s exit from the business on bad-leaver terms.

[273]The Tribunal did not consider that the Claimant would have remained in post long enough to have achieved full development on the market, nor to have transferred technology or the headquarters to China. Nor do the Tribunal consider that the Claimant would have been in place if and when R1 was floated on the Chinese STAR market. The Tribunal considered that the Claimant’s views on how to get to that position were not in line with those of CR, who held control of their investment and were supported by both Mr Kuo and Mr Kao.

[274]The Tribunal will of course hear further evidence in relation to remedy at a separate hearing. Employment Judge Cowen Date: ………2 December 2024….. Amended/Redacted on 13 January 2025 Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/

Remedy

[1]This ﬁgure was agreed between the parties as the appropriate calculation of the awards given the current US dollar: UK Sterling exchange rate and the agreed tax liability. Case Number: 3307544/2020 e. Bonus $583,000 f. 25% uplift for failure to follow the ACAS code g. 20% reduction for contributory fault

[2]The above sum to be paid by whichever is the earlier of either, 14 days from the date of tax liability by HMRC, or 27 March 2026.

[3]If further sums are required to satisfy the tax liability in relation to the above payments, these are to be agreed between the parties. Failing which, either party may apply for reconsideration out of time, for this reason only. Approved by

Remedy

[1]Hearing The Hearing was listed for 6 days to consider remedy as a result of the liability judgment dated 5 December 2024 (and issued in redacted format on 13 January 2025). The parties provided an agreed bundle of over 2000 pages, but referred to none of it, bar the judgment, the schedule of loss , the ET1 and the claimant’s contract. A significant bundle of authorities was also provided, some of which were referred to in submissions.

[2]The Tribunal heard Dr Black confirm in evidence the parts of his witness statement which were not agreed issues between the parties. However, the Respondent chose not to cross examine the Claimant and therefore the Tribunal accepted his evidence as unchallenged. The Respondent provided a witness statement from Mr Merry but he did not attend to give evidence.

[3]Both parties provided skeleton arguments and made oral submissions to the Tribunal.

[4]The Tribunal indicated to the parties that the meaning of paragraph 272 of the liability judgment was that the Tribunal considered that the Claimant would leave his employment within 6 months in any event, as a bad leaver. Hence the Tribunal had decided that any losses were limited to a period of 6 months from 10 April 2020. The Claimant withdrew his request for reinstatement in light of the Tribunal’s indication of a limit of 6 month’s loss

[5]The parties were able to agree the following;-a. 6 months of loss of earnings at $236,183 net

b. 12 months of PILON at $472,366 net

c. Basic award £807 gross

d. Injury to feelings £27,000.

e. Mitigation of loss was not an issue as the period of loss was limited to 6 months

[6]This meant that the issues for the Tribunal to decide were limited to;a. Bonus payment for 2019 and Apple deal,

b. Detriment for Protected Disclosures

c. Contributory Fault

d. ACAS uplift Compensation for Detriment

[7]The Tribunal considered that there were two detriments which had been found to have occurred; 1) Dismissal as detriment by R2,3,4, and 2) Dismissal of Mrs Black as detriment Statutory Provision 8. s.49 (2) ERA 1996 (2)Subject to subsections (5ZA), (5A) and (6) 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. Test

[9]The test on whether the loss was attributable to the act is the ‘but for’ test (Roberts v Wilsons Solicitors

[2018] ICR 1092

)

[10]Dismissal as detriment This allegation was found as against R 2,3,4. The parties have agreed sums for the Claimant’s loss of earnings and PILON amounts for the s.103A claim. There is no separate award of damages for detrimental loss of employment as this would lead to double recovery.

[11]Dismissal of Mrs Black as a detriment The Tribunal set out its decision on the dismissal of Mrs Black at paragraphs 242 to 251 of the liability judgment. The Tribunal found that the reason Mrs Black was dismissed was due to her relationship with the Claimant and his dismissal due to his Protected Disclosures. The Directors of R1 had concerns about confidentiality and decided to end her employment.

[12]The Tribunal found (para 249) that the detriment to the Claimant was that the household income was reduced. The Tribunal did not make any findings about any other type of detriment to the Claimant by Mrs Black’s dismissal.

[13]In his evidence at the remedy hearing, the Claimant said and it was submitted that he also suffered the detriment of his guilt at Mrs Black being dismissed from a job which she was good at and for which there were no issues with her conduct or performance. The Tribunal were satisfied, that this was covered by the agreed sum for Injury to Feelings ( as set out in the Claimant’s submissions). The Tribunal therefore do not make any further award in that respect.

[14]With regard to the financial loss. The test to be applied is the ‘but for’ test as set out in Roberts v Wilson; but for the dismissal of Mrs Black, she would have continued to be paid by R1. The issue is whether the Claimant would have continued to receive the benefit of that payment.

[15]The Tribunal has to consider whether it is just and equitable to award compensation to the Claimant for a loss which is in fact Mrs Black’s salary, not his.

[16]The Tribunal took into account the fact that they have not seen any evidence on how much control the Claimant has over the money, or how much spending of the money is carried out by either of the Claimant or Mrs Black. This could not therefore assist the Tribunal in deciding this point.

[17]The Tribunal concluded that the reason the Claimant received the benefit of Mrs Black’s salary was because she chose to share it. That did not make the Claimant entitled to receive her salary, it made him a beneficiary of her salary.

[18]The Tribunal accepted the Claimant’s submission that the Claimant has a legal ownership of the joint bank account. But they considered that did not mean that he had an entitlement to the beneficial interest of all of it. They also accepted that the Claimant could not mitigate this loss, as whether his wife chooses to work, or is able to secure a job, is not a matter he has control over.

[19]In trying to apply justice and equity to this head of loss the Tribunal considered that the Claimant could not be said to have more than a 50% beneficial interest in the money added to the account. The Tribunal took account of the Claimant’s evidence on this point which said that once paid in the money belonged to both of them and they could spend it freely from the shared account.

[20]The Tribunal concluded that the Claimant therefore had no more than a 50% share of the content of any money paid into the account. He therefore had a 50% beneficial interest in the money paid in by Mrs Black, as well as the money he paid in. The Tribunal found that the amount which was available to the Claimant for himself was 50% of Mrs Black’s salary.

[21]The Tribunal also considered how long to allow in the award of loss due to detriment; The Tribunal accepted that there was no reason for R1 to dismiss Mrs Black.

[22]There was also no evidence of how the Claimant’s job would terminate in 6 months’ time – it could be a resignation, or compromise, or a dismissal. There was therefore no certainty that there would be confidentiality issues which arose at that point. The Tribunal considered it was also possible that Mrs Black would resign if the Claimant was dismissed, e.g. if their family plan changed as a result of his termination.

[23]The Tribunal were also of the view that Mrs Black’s employment was closely tied to that of the Claimant; whilst she did a good job, she would not have been there had he not brought her in. The Tribunal therefore considered that it was equally likely that when the Claimant fell out with the R1, Mrs Black was also likely to leave.

[24]The Tribunal understood that it was effectively being asked to predict an alternative reality, but it is required to do so and did so based on the evidence available which could assist with the prediction of likely actions. On balance, the Tribunal concluded that it was likely that if the Claimant left in 6 months, so would Mrs Black.

[25]The Tribunal calculated Mrs Black’s salary to be £150,000, with Car allowance £7,000 and Bonus 30% = £45,000. Giving her an annual package of £202,000. The Tribunal considered 50% = £ 101,000 and 6 months = £50,500 gross. Bonus

[26]The Tribunal outlined at paragraphs 227 to 235 that the Claimant’s contract included a discretionary bonus plan which provided a target bonus of 100% of salary.

[27]The Compensation Philosophy 2019 Scenarios Planning in November 2019 was written by the Claimant and suggested that the Apple deal was so significant that it warranted a bonus which was not in the pool. The same document indicated that the EMB were operating on a bonus target of 1.5 – 2 x their salary. The Tribunal accepted that this document was accepted by the Board, although there were no minutes of these meetings to support this assertion. The Tribunal noted that the Board operated informally without any documentary record.

[28]The Tribunal therefore had to consider, if a further meeting of the Board had occurred, whether the Claimant would have received any further payment under a) the bonus plan and b) due to the Apple deal.

[29]The Tribunal were satisfied that If the Claimant had stayed for 6 months, the Claimant would have had opportunity to persuade Mr Bingham who was favourable towards him, to encourage the Board to allow a further payment of bonus. Given the amicable relationship between the Claimant and Mr Bingham up to the 9 April 2020, the Tribunal were of the view that the Claimant would have been able to persuade Mr Bingham that his plan bonus ought to reflect the same percentage that was being awarded to other high achievers. The compensation philosophy 2019 showed that the top 10% were to receive 1.5 -2 times salary. The Tribunal concluded that Mr Bingham would have been able to persuade the Directors to authorise that the Claimant receive 1.5 times his salary. Having already received 100% bonus, this would mean a further $250,000 would have been awarded within that 6 month period. This would have placed the Claimant in line with other members of the EMB.

[30]In relation to the Apple bonus, the Tribunal recalled that Mr Bingham had told the parliamentary committee that the Claimant’s success in the deal had been ‘masterful’. This was said even after his dismissal and therefore the Tribunal considered that Mr Bingham remained of the view that the Claimant had done a good job and was therefore likely to be in favour of awarding a bonus.

[31]The only evidence of a discussion of the bonus indicated that whilst the Claimant was asking for $3million, Mr Bingham told him, he was thinking more about $1-3million. The Tribunal considered that a sum at this level would have required Board approval and would not have been for Mr Bingham to decide in isolation.

[32]The Tribunal noted that whilst Mr Bingham remained on side, the evidence showed that Mr Kuo had not supported the Claimant for some months. There was no evidence before the Tribunal which would indicate clearly how this negotiation would resolve, but the Tribunal took into account the fact that the Claimant was known to be a hard negotiator who was persistent. They also noted that whilst Mr Kuo did not like or trust the Claimant, he too was a businessman and was pragmatic when it came to ensuring the business was successful. The position of Mr Kao was somewhere between supportive and resistant, having changed his mind as a result of some of the Claimant’s actions.

[33]Taking all of the relevant information into account, the Tribunal were of the view that the Claimant’s loss amounted to the loss of a chance to obtain what would not be more than $1million in bonus for the Apple deal. The Tribunal concluded that by the expiry of 6 months there was no more than a one-third chance that the Claimant would have secured that bonus. The Tribunal therefore considered the just and equitable award to be $333,333 to reflect the chance that he would have received such a bonus.

[34]Total bonus award $583,333 gross. Contributory Fault by the Claimant

[35]The Tribunal reminded itself that the issue of contribution is split into two separate considerations. The first with regard to the basic award, under s.122(2) ERA, requires the Tribunal to consider the conduct of the employee prior to the dismissal and gives the Tribunal a wide discretion as to whether to make a deduction. The second, with regard to the compensatory award, under s.123(6) ERA, requires that the Tribunal must be satisfied that the Claimant’s conduct caused or contributed to his dismissal; Optikinetics Ltd v Whooley

1999 ICR 984

, EAT. Where they are so satisfied, they must make a deduction; Parker Foundry Ltd v Slack

1992 ICR 302

, CA,

[36]The Tribunal also took into account the test in Steen v ASP Packaging [2014] ICR for award of damages under s.123 ERA; the Tribunal must; i) Look at the conduct which gave rise to contributory fault ii) Consider whether the conduct is blameworthy (1) Focus on what the employee did- which is a decision of fact iii) Consider whether the conduct contributed at all to the dismissal (we have said that his conduct was a secondary reason for dismissal) iv) To what extent should the award be reduced – what is just and equitable.

[37]The Tribunal reminded themselves that they found that the primary reason for dismissal was the Claimant’s protected disclosures (Judgment para 263/4)

[38]Secondary reasons were the way in which the Claimant had conducted himself on 6 April e.g. by co–ordinating the resignation of members of the EMB, causing bad publicity for R1 and causing potential/actual external scrutiny of R1.

[39]The Claimant had set the Directors in conflict with each other; had raised issues with regard to the control of the company and caused difficulty for R1 with Canyon Bridge and China Reform.

[40]However, all of these other problems appeared to be surmountable, given Mr Bingham’s willingness for the Claimant to remain in employment.

[41]It was however Mr Kuo who had wanted to terminate the Claimant for some time, at least in part due to the disclosures made by the Claimant about him.

[42]Mr Kao was upset by the Claimant’s actions with the EMB and said he had lost faith in him as a result of these actions and could not work with him again.

[43]The Tribunal therefore considered that the Directors took the opportunity, when it arose, to terminate the Claimant’s employment.. The Tribunal concluded that Mr Bingham had ‘read the room’ incorrectly and did not have the support of the others, so had to join them in order to maintain cohesion on the Board and also due to pressure from China Reform.

[44]Furthermore, the Tribunal decided that if not now, then in 6 months’ time, something would have arisen which would have led to the Claimant’s tenure ending.

[45]However, the Tribunal considered all the circumstances of the actions of the Claimant and concluded that there was not an equal amount of blameworthiness. The fact that Mr Bingham was initially willing to continue the employment showed that the Claimant’s actions had not necessarily amounted to a breach of contract. If the Tribunal had considered that they were that fundamental, we would not have said that the protected disclsoure was the primary cause of the dismissal.

[46]The Tribunal therefore considered the extent to which his blameworthiness caused his dismissal and concluded that a just and equitable view was that a 20% reduction of the compensatory award was appropriate to reflect the extent of his conduct which in part led to the dismissal.

[47]In relation to conduct prior to the dismissal, this would lead to a reduction in the basic award. Given that the actions of the Claimant happened before his dismissal, the Tribunal considered the same deduction should be made. £807 – 20% ACAS uplift

[48]The Tribunal were entirely satisfied that the ACAS guidelines on grievance and disciplinary procedures did apply to the Claimant’s dismissal. The excluded actions were dismissals for redundancy or non- renewal of fixed term contracts, which did not apply in this case. Equally the Tribunal felt that the Respondent’s submission that the ACAS guidelines were not appropriate due to the Claimant’s senior status is a fundamental misunderstanding of the purpose of the guidance and application of them. The Tribunal were sure that the purpose behind this guidance was irrespective of the salary level or status of the employee. Statutory provision

[49]S.207A(2) TULRCA sets out that (2)If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— (a)the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies, (b)the employer has failed to comply with that Code in relation to that matter, and (c)that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.

[50]Test Once the Tribunal decided that it was unreasonable to fail to follow the ACAS Code, the Tribunal should take into account the four stage test in Slade v Biggs and others EAT 2021, GriƯiths J said,a. Is it just and equitable to make award of ACAS uplift

b. What is the just and equitable percentage up to 25%

c. Does the uplift overlap with other awards such as injury to feelings,

d. Apply a sense check – is it a sum which is disproportionate.

[51]The Respondent did not deny that they failed to follow the guidance. They acknowledged that there was no investigation, no clear notice of charges to answer, no disciplinary hearing, no opportunity to be accompanied and no appeal was considered. The Tribunal considered that the Respondent did not honour any stage of the guidance at all and that this amounted to a failure to follow it throughout.

[52]The Tribunal then considered whether the Respondent’s failure to apply the code was unreasonable;

[53]The Tribunal took into account the fact that the Claimant’s contract refers to a grievance procedure and therefore the Respondent acknowledged that procedures ought to be followed and was aware of them.

[54]The Tribunal noted that the Directors had orally, through Mr Bingham, agreed to the withdrawal of the resignation and had both told staƯ that it was ‘business as usual’ and put out a press release. The Tribunal considered that this drew a line under the Claimant’s actions and indicated a willingness to move forward.

[55]The Tribunal found that “…as the Claimant sought to obtain conﬁrmation in writing of R1 agreement that the resignation was withdrawn during 7-8 April 2020, It became increasingly clear that Mr Bingham, Mr Kuo and Mr Kao saw this is an opportunity to reconsider their position with regards to the Claimant, whom they considered had been disloyal and had acted against the best interests of R1”.

[56]The action of the R1 Directors on 10 April was to dismiss the Claimant without any notice of the reason for his dismissal, save for the fact that it was ‘in the company’s best interests to terminate your employment immediately’. This lacked any process at all. A call was made by Mr Bingham, which R1 did not record (although the claimant did). This was a call between Chair of Board and CEO, which took no account of process at all.

[57]The Tribunal also noted that the Claimant wasn’t oƯered an appeal, but he attempted to appeal. This too was turned down as too late and Mr Bingham saying that there was no procedure to follow. This was a blatant disregard of the ACAS guidance and an egregious error. The Tribunal was satisﬁed that R1 could have found someone from a related company or from legal advisers to conduct this process.

[58]The Tribunal considered that a company such as R1, who clearly had the ability and means to take rapid legal advice, should not have acted without due process. Had they followed due process, they would have undertaken an investigation, possibly after suspending the Claimant, and given him the opportunity to state his position and his reasons for his actions, before making any decision on his future employment.

[59]The Tribunal took into account the background of the situation including C’s behaviour and that he was 20% to blame for his dismissal. However, bad behaviour by C didn’t mean that he had foregone his right to a fair procedure. The Tribunal considered that an employer who holds the power to dismiss should only exercise that power, once it has also exercised its responsibility of following a proper disciplinary procedure. Had the Respondent followed such a procedure, it is possible that ET proceedings could have been avoided. The Tribunal considered that it was unreasonable for R1 not to have followed the ACAS guide

[60]For these reasons the Tribunal concluded that it would be just and equitable to make an uplift award. Even senior executivess are entitled to be protected by the ACAS code.

[61]After due consideration, the Tribunal concluded that given the total failure to attempt any process, and the refusal to engage with an appeal, an uplift of 25% is appropriate.

[62]The Tribunal considered the overlap with other awards – In fact we have held the Claimant to be 20% responsible for his dismissal and have deducted that amount from both basic and compensatory awards. However, we concluded that those actions happened before the decision by R1 not to follow any process and that an employer should maintain its procedures regardless of the actions of the employee.

[63]The Tribunal also considered whether such an award was proportionate. We did not ﬁnd that R1 did anything in accordance with the code or even attempted to do so. The Tribunal could not see how this could have been worse at all. The award is proportionate as it retains the fact that R1’s treatment of the Claimant was more blameworthy than the steps taken by the Claimant prior to his dismissal. We do not consider that it would be appropriate to limit compensation for lack of procedure to the limit agreed by the parties for Injury to feelings. The award of uplift applies to the ﬁnancial losses and is there to reﬂect the lack of procedure to this individual. We note that Slade did not say it was mandatory – GriƯiths J said in his view it was “of some relevance to have regard to the sums which the courts are willing to award for injury to feelings and for aggravated damages”. We have considered it, and concluded that the purpose of an award of uplift is to highlight and to some extent penalise for the lack of procedure. That would not be meaningful in such a high value case as this if we were to limit to a sum which was agreed by the parties without the Tribunals’ input. We therefore apply the maximum 25% uplift. Approved by

[1]The applications by the Times and Guardian newspapers are dismissed upon withdrawal.

[2]The application by UK China Transparency is dismissed. Approved by