Mr S Eynollahi v Brent Community Transport: 3307567/2023

EMPLOYMENT TRIBUNALS

Case No 3307567/2023

Between

Mr S EynollahiClaimant

Brent Community TransportRespondent

Before

Employment Judge Quill; Mr N Ramgolam; Mr R Jewell

In person for claimant

Mr J Kapadia (instructed by counsel) for respondent

Date 17 October 2025

JUDGMENT

[1]The Claimant did not make protected disclosures as alleged. His dismissal was not because of protected disclosures and nor was he subjected to detriments because of protected disclosure.

[2]The complaints of race discrimination all fail and are dismissed.

[3]The holiday pay complaint succeeds to the extent admitted by the Respondent. It underpaid him by £58.02 when making payment in lieu of holiday entitlement on termination of employment.

[4]The complaint of unfair dismissal is well-founded. The Respondent unfairly dismissed the Claimant.

[5]The breach of contract complaint is well-founded. The Respondent breached the Claimant’s contract of employment by dismissing him without notice. Page 1 of 69

[6]The complaints mentioned above are the only complaints presented by the Claimant. Remedy will be decided at a separate hearing.

REASONS

[1]We had three written witness statements on each side.

[2]The Claimant’s witnesses were:2.1 The claimant

2.2 John Quinn

2.3 Prajesh Trivedy

[3]The Respondent’s witnesses attending the hearing were:.3.1 Natalie Styles

3.2 Moses

[4]Each of those witnesses attended the hearing, swore to the accuracy of their written statement, and answered questions on oath.

[5]The third witness statement on the Respondent’s behalf was from Dr Mary Golden. We do not draw adverse inferences from her non-attendance, and we accept the explanation that(i) she was out of the country at the time of the hearing (and in a country from which video evidence is not permitted, though there was no application for her to attend the hearing by video in any event) and

(ii) she had notified the Respondent’s representatives of this and

(iii) the Respondent’s representatives failure to notify the Tribunal of this date to avoid, and failure to apply for postponement when the notice of hearing was sent in April 2025, were not because the Respondent had instructed its representatives that it did not wish her to be cross-examined. We refused a postponement request on Day 1 of this hearing for the reasons we gave at the time. We have given her written statement such weight as we see fit in all the circumstances.

[6]The approach to bundle preparation left a lot to be desired. We note the Claimant’s opinion that the blame for this lies at the door of the Respondent's representative and/or of the Respondent. We do not need to address where the blame lies. However, we had the following.6.1 A bundle with index of 1040 pages (numbered 1 to 40)

6.2 A bundle with index of 337 pages (numbered 1 to 337) Page 2 of 69

6.3 A bundle with index of 537 pages (numbered 1 to 537)

[7]Pausing there, these were not placed in self-contained lever arch folders. The lever arch folders, which were not labelled, simply contained all of these bundles one after another, divided by cardboard file dividers (which were also not labelled).

[8]The Claimant commented on Day 1 that he did not think there were really 3 separate bundles, rather the 537 page item was simply a later version of the 337 page item, with the numbering 1 to 337 being the same in each, and 200 additional pages added. The Respondent did not accept that position on Day 1, though we were never taken to anything which seemed to cast doubt on the Claimant’s comment.

[9]In addition, we had a hard copy bundle from the Claimant.9.1 This contained (amongst other things) items which the Claimant said had been contained in the version of the bundle agreed and prepared for the October 2024 hearing date (a hearing which was postponed due to lack of judicial resources, not because of application by either party) which the Respondent had removed from the hearing bundle for this August 2025 without his agreement.

9.2 We did not need to make decisions about that particular assertion, though the fact that at least some of the items in the Claimant’s bundle were relevant is shown by (amongst other things) the fact that he was cross-examined on the contents of some documents, prepared by or on behalf of the Respondent, which were in the Claimant’s bundle and not the main bundle.

9.3 There were three items in the Claimant’s bundle that had not previously been disclosed. One was a public document obtained from companies house website. However, the other two were items which the Claimant says he had recently found at home amongst his papers. They were things that ought to have been found and located much sooner. We discuss those in the findings of fact below.

[10]References below to [Bundle XXX] are to page XXX from the 1040 page bundle. References to [Bundle SXXX] are to the page numbers from the 537 page supplementary bundle. References to [Bundle CXXX] are to the page numbers from the bundle supplied by the Claimant.

[11]On Day 1, we had a strike out application from the Respondent’s side relating to the protected disclosure complaints. We refused it for the reasons we gave at the time. Page 3 of 69

[12]On Day 4, we received disclosure of further documents from the Respondent’s side. We were told that these had been found as a result of additional searches carried out in response to matters which had arisen during the hearing. The Litigation and the Issues

[13]We are not going to go through in detail everything that happened in the history of the litigation, and in particular, we are not going to comment on all the correspondence between the parties.

[14]On Day 1, we discussed what appeared to be the issues, and, having listened to both sides, made decisions were necessary, and gave reasons. We handed the parties a written list of issues, based on those decisions, which was as follows. We also highlighted – in the accompanying case management orders – certain things that were not part of the claim unless there was a successful amendment application. The list was as follows: The issues 1. The issues between the parties which potentially fall to be determined by the Tribunal are as follows: Time limits / limitation issues 1.1. Were all of the claimant’s complaints presented within the time limits set out in 1.1.1. section 123 of the Equality Act 2010 (“EQA”) 1.1.2. Working Time Regulations and/or (as the case may be) section 23 ERA 1.1.3. The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 1.1.4. section 48 of the Employment Rights Act 1996 (“ERA”)? 1.1.5. section 111 of the Employment Rights Act 1996 (“ERA”)? 1.2. Dealing with this issue may involve consideration of subsidiary issues including: when the treatment complained about occurred; whether there was an act or conduct extending over a period, and/or a series of similar acts or failures; whether time should be extended. Given the date the claim form was presented and the dates of early conciliation, the dates from 7 April to 18 May 2023 (inclusive) will be ignored when calculating time limits. The claim was presented on 1 July 2023. A claim about an incident on 28 February 2023 would seem to be in time (taking 27 May 2023 and adding 41 days, is approximately 7 July 2023). Unfair dismissal Page 4 of 69 1.3. What was the principal reason for dismissal and was it a potentially fair one in accordance with sections 98(1) and (2) of the Employment Rights Act 1996 (“ERA”)? The respondent asserts that it was a reason relating to the claimant’s conduct. 1.4. If so, was the dismissal fair or unfair in accordance with ERA section 98(4), and, in particular, did the respondent in all respects act within the so-called ‘band of reasonable responses’? Remedy for unfair dismissal 1.5. If the claimant was unfairly dismissed: 1.5.1. Should reinstatement or re-engagement be ordered 1.5.2. What adjustment, if any, should be made to any compensatory award to reflect the possibility that the claimant might still have been dismissed had a fair and reasonable procedure been followed? 1.5.3. Would it be just and equitable to reduce the claimant’s basic award because of any blameworthy or culpable conduct before the dismissal, pursuant to ERA section 122(2)? If so to what extent? 1.5.4. Did the claimant, by blameworthy or culpable actions, cause or contribute to dismissal to any extent? If so, is it just and equitable to reduce the amount of any compensatory award, pursuant to ERA section 123(6)? Public interest disclosure (PID) 1.6. Did the claimant make one or more protected disclosures (ERA sections 43B and 43C to 43H) as set out below? 1.7. The alleged disclosures the claimant relies on are that, in autumn 2021, in oral discussions with Moses, the Claimant raised issues about the way in which the charity was run in connection with the Respondent’s relationship with JPC HR Consultancy, being 1.7.1. That the Respondent was being charged too much 1.7.2. That JPC HR Consultancy was charging the Respondent too much 1.7.3. That there were conflicts of interest 1.8. The claimant relies on the follow subsection(s) of section 43B(1) in relation to this alleged disclosure.(a) that a criminal offence has been committed, is being committed or is likely to be committed, and/or

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, and/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. 1.9. Was the principal reason for the dismissal that the Claimant had made a protected disclosure? Page 5 of 69 1.10. Did the respondent subject the claimant to any detriments, as set out below? Included within this issue are the questions of what happened as a matter of fact and whether what happened was a detriment to the claimant as a matter of law – including whether section 47B(2) applies. 1.11. If so, for each detriment, was the Claimant subjected to that detriment on the ground that they had made one or more protected disclosures? 1.12. The alleged detriments the claimant relies on are as follows: 1.12.1. Suspension in January 2022 1.12.2. Commencement of disciplinary proceedings in January 2022 1.12.3. Decision to dismiss the Claimant on or around 15 August 2022. 1.12.4. Following reinstatement after that dismissal, refusal to allow the Claimant to resume work 1.12.5. Commencement of new disciplinary proceedings (on a date to be established) which was notified to the Claimant in November 2022 1.12.6. Delay in progression of the new disciplinary proceedings EQA, section 13: direct discrimination because of race 1.13. Did the respondent subject the claimant to the following treatment: 1.13.1. Suspension in January 2022 1.13.2. Commencement of disciplinary proceedings in January 2022 1.13.3. Decision to dismiss him on or around 15 August 2022. 1.13.4. Following reinstatement after that dismissal, refusal to allow the Claimant to resume work 1.13.5. Commencement of new disciplinary proceedings (on a date to be established) which was notified to the Claimant in November 2022 1.13.6. Delay progression of the new disciplinary proceedings 1.13.7. Dismissal in February 2023 1.13.8. Non-reinstatement on appeal against that dismissal 1.14. Was that treatment “less favourable treatment”, i.e. did the respondent treat the claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances? The claimant relies on hypothetical comparators and/or on an alleged actual comparator, LC C 1.15. If so, was this because of race? In particular, was it because the Claimant is 1.15.1. Ethnically Asian and/or 1.15.2. Born in Iran and/or 1.15.3. Not Afro Caribbean Unpaid annual leave – Working Time Regulations 1.16. On termination of employment, was the Claimant paid all of the compensation as per the entitlement under regulation 14 of the Working Time Regulations 1998 and/or his contract of employment? Deciding this will require the Tribunal to decide: Page 6 of 69 1.16.1. What was the claimant’s leave year? 1.16.2. How much of the leave year had elapsed at the effective date of termination? 1.16.3. How much leave had the claimant taken in the year? 1.16.4. Did he have the right to carry over any leave (i) under the Regulations and/or (ii) his contract? If so, what was the carry over 1.16.5. What should the Claimant have been paid, on termination, for unused holiday? 1.16.6. What was he paid? 1.16.7. Is there a shortfall? Breach of contract 1.17. To how much notice was the claimant entitled? 1.18. Did the claimant fundamentally breach the contract of employment such that the Claimant lost an entitlement to receive notice (or payment in lieu of notice). [This requires the respondent to prove, on the balance of probabilities, that the claimant actually committed such a breach.]; if so, did the respondent affirm the contract of employment prior to dismissal? 1.19. Is the Claimant entitled to damages? Remedy 1.20. If the claimant succeeds, in whole or part, the Tribunal will be concerned with issues of remedy and in particular, if the claimant is awarded compensation and/or damages, will decide how much should be awarded. The Findings of Fact General Points about Credibility

Remedy

[15]We make the following findings of fact on the balance of probabilities having considered all of the evidence presented during the hearing.

[16]We have assessed the evidence as a whole, taking into account both the inherent plausibility of things asserted by witnesses, and how the witnesses’ assertions compare to what was written in contemporaneous documents

[17]Where we have decided that something a witness said was on the balance of probabilities not accurate, it does not automatically follow that the witness was lying. Page 7 of 69

[18]Paragraphs 15 to 22 of Gestmin SGPS S.A. v(1) Credit Suisse (UK) Limited

(2) Credit Suisse Securities (Europe) Limited

[2013] EWHC 3560 (Comm)

contain a useful summary of the factors that can potentially cause a witness to believe that they have a genuine and accurate recollection of a particular event or incident, but where, in fact, unbeknownst to the witness the memory is inaccurate.

[19]That being said, where there is a particular alleged act or omission upon which one of the complaints is based, we do have to make a finding of fact - on the balance of probabilities - about whether the act/omission did occur or not. We could not avoid making that decision even if we wanted to.

[20]We can only base our decision on the evidence that is available to us. When there is no contemporaneous documentary evidence, our decision has to be based on one witness saying that the incident did happen and the other witness saying that it did not happen. In such a situation, when we have to decide which account is more likely to be accurate, one of the things that we can take into account is whether we have found the respective witnesses’ evidence to be accurate on other matters.

[21]It might therefore be that we have to make a decision about whether a witness lied about one particular incident (for which we think there is strong evidence) in order to assess the likelihood of that witness having lied about another incident (for which neither side has corroboration other than it being one witness’s word against another).

[22]We do of course, take into account that even if we decide a particular witness lied about one particular matter, then it does not follow that they lied about everything in their statement / oral answers.

[23]Similarly, where we decide that a witness’s evidence was inaccurate, then, regardless of whether that was an innocent mistake or a deliberate lie, it does not follow that that the witness’s evidence was inaccurate on all other points.

[24]However, lies and inaccuracies on one or more matters are things that that we potentially take into account when assessing other parts of that witness’s evidence

Background

[25]The Respondent is a registered charity, and a registered company limited by guarantee. Its activities commenced in the 1970s. It became incorporated in around July 1980. It was set up to provide affordable transport to the residents of London Borough of Brent.

[26]The Chair, Moses, joined shortly after the Respondent’s activities commenced. At the time he was in full time employment a social worker, working mainly with Page 8 of 69 children and people living with a disability. He did work for the Respondent as a volunteer in his own time. At around that time, the Respondent ran a fleet of minibuses for self-drive groups, a second-hand black London taxi, adapted to take single users using a wheelchair, and coordinated private car users known as Community Car Scheme to offer their time to transport other individuals who were unable to use public transport to local places, services or to see family

[27]Over the years, Moses fulfilled a range of duties. He became the Driver Trainer, training drivers wishing to hire the minibuses, assisted with booking procedures and coordinating private car users with picking up and transporting individual users.

[28]In due course, he was elected to the board of the Management Committee. He had (at least) two separate spells as Chair, the most recent of which spanned the entire period of the Claimant’s suspension, disciplinary proceedings, dismissal and appeal.

[29]As of the dates of the Tribunal hearing, he is no longer the Chair but remains a member of the board.

[30]Moses worked with several CEOs over the years.

[31]The Claimant began working for the Respondent as a volunteer in 2003 and later secured a part-time position as a Finance Assistant. He left the organization in 2006 to pursue further studies. His second period of employment with the organisation commenced in March 2007 as an Account/Finance Manager. He then worked in various roles, including Accounts/Finance Manager, Deputy CEO, HR Manager, Acting CEO and then CEO.

[32]In April 2014, the Claimant was appointed Acting CEO with salary of £42,000 per annum, matching the outgoing CEO’s salary. This was done by adding a monthly adjustment of £500 to his existing salary from 1st July 2014. The Claimant’s direct line manager became Moses, Chair of the Board of Trustees.

[33]In terms of the arrangements for remuneration, and holiday, and what the documents show, we will discuss those in due course, when addressing later events, in particular the investigations that were carried out, and document disclosures as part of the litigation.

[34]Subject to that, the relevant events commence during 2021. One of the employees reporting to the Claimant was Ms Ruma Bhudia, Bookings and Operation Assistant.

[35]It came to the Claimant’s attention that a driver, whom we will refer to as LC, might have been driving the Respondent’s vehicles, and carrying out duties for the Respondent, without having a driving licence that was valid for the vehicles Page 9 of 69 in question. In particular, it was the Claimant’s opinion that LC’s licence had expired (in around June 2021), and that LC knew this, but continued to drive for the Respondent (until around October 2021).

[36]The Claimant did not commence any disciplinary action against LC. He did commence disciplinary action against Ms Bhudia. This led to a disciplinary hearing on 15 November 2021. [Bundle 208]. The attendees were:36.1 Moses

36.2 Another trustee, Nola Slater

36.3 Ms Bhudia, accompanied by Beresford Peters as “staff representative”

36.4 June Crowther, an external HR Consultant, employed by JPCHR Consulting Limited (“JPCHR”).

36.5 The Claimant, who was there to present the “management case”.

[37]The minutes refer to “Investigatory Notes dated 3 November 2021 and Investigatory Outcome Report, 8 November 2021”. We do not have those items, but they were prepared by the Claimant. The rights and wrongs of what happened with LC are not matters that we need to try to decide. The relevant issues arising from the meeting are:37.1 Moses and Ms Slater were interested in trying to work out what the process was supposed to be, and whether it needed to be improved to avoid a repetition.

37.2 Ms Bhudia’s position was that the upcoming expiry of LC’s licence had been properly documented and that she had spoken to LC about it. Based on his answers, and on what she believed was the practice that was usually followed, and on what she understood the law to be, she did not prevent LC from driving on the basis that she believed that his medical examination was scheduled.

37.3 Further, it was her position that she had had a period of sickness absence during the relevant period. By implication, it was her suggestion that

(i) the Claimant should have covered her duties in her absence and

(ii) the Claimant did not act any differently towards LC than Ms Bhudia had done.

[38]Within that November 2021 hearing, when Ms Bhudia queried why there was no action against LC, Moses gave an explanation of what had happened to resolve the matters between the Respondent and LC.

[39]During this Employment Tribunal hearing, when the panel asked why the Claimant had not instigated disciplinary action against LC, he expressed the Page 10 of 69 opinion that he, the Claimant, could only instigate disciplinary action against people who directly reported to him.

[40]The 15 November 2021 hearing did not end with any decision as to the outcome.

[41]During the hearing, Ms Bhudia had asked if the reason she was being disciplined and (in her opinion) LC was not was “because he is a man, and … because I am a woman?”

[42]The following day, at 8.49am, the Claimant sent an email to Moses: As my line manager I would like to complain about heartful, distressing untrue accusation that put to me at RB disciplinary hearing in front of the panel and other staff by RB in regards to Race (Gender). Her case clearly was for her wrongdoing in allowing a driver to drive with invalid driving licence and is nothing to do with Race/Gender. There was no respect and I am not happy with that and I would like to record this as formal complain and grievance to be dealt separately. 43. [Bundle 218] contains a letter sent to the Claimant by Moses dated 23 November 2021. I trust you are well. I am writing to acknowledge your formal grievance / complaint against Rama Bhudia (RB), the Bookings Assistant sent to me by email on Tuesday 15th November 2021. As you have stated in your email, the complaint is about "heartful, distressing untrue accusation made by RB at her recent disciplinary meeting, in front of the panel and other staff by RB in regards to Race (Gender)". A panel will be set up to look into this matter as a course of urgency. I would like to offer you, the opportunity to speak to HR, or a Management Committee member that will not form pineal or act in any capacity with this regards or if you prefer, an external person. Please don't hesitate to contact me or HR at anytime if you feel the need.

[44]Our finding is that there is a typo in the second paragraph, and the letter is referring to the email of Tuesday 16 November, at 8.49am. 45. [Bundle 219] contains another letter sent to the Claimant by Moses dated 23 November 2021 I am writing to inform you that I receive a formal complaint / grievance against you from Rama Bhudia, Bookings Assistant today, Tuesday 23rd November 2021. The complaint will be investigated in line with BCTs policies and procedures and the necessary steps followed. I or the investigating person will be in touch.

[46]The actual grievance brought by Ms Bhudia is not included in any of the several hearing bundles, which is a surprising omission given the reliance the Respondent places on it for later suspending the Claimant. The report into the Page 11 of 69 grievance is [S217]. The appendices to that report are listed at [S230] and seemingly include the grievance letter, but the appendices themselves have been omitted.

[47]There is a third letter bearing the date 23 November 2021 at [Bundle 217]. That letter was not sent by Moses in November or December. It was written after the Claimant and Moses had met on 7 January 2022.

[48]The Claimant acknowledged the two letters on 24 November [Bundle 220]: I have already told you about my feeling and that I am not happy and stressed unnecessary and I think that I have been victimised and targeted and I would like to take the opportunity to speak to external person. Would you please let me know if BCT will contribute towards the cost or not, if yes then how much?

[49]The main person operating JPCHR Consulting Limited (“JPCHR”) was June Crowther. The Respondent had used its services for several years. We have not been provided with all the documents relating to either the disciplinary action relating to Ms Bhudia or the two grievances. However, the documents that we do have make it plain that JPCHR, and June Crowther in particular, were involved in providing HR advice to the Respondent about those matters.

[50]Another task that JPCHR had around this time was to work on certain policy documents.

[51]One of the Claimant’s alleged protected disclosures to the Respondent is that he says he raised issues about JPCHR’s invoices with Moses. Despite crossexamination and panel questions, the specific and express assertion about exactly what was communicated remained vague.51.1 To the extent that the Claimant alleges that he says that the JPCHR was charging too much, our finding is that he did not say – and he did not mean to imply – that Ms Crowther was charging for hours that she had not actually worked. Further, he did not say – and he did not mean to imply – that Ms Crowther was charging an hourly rate that was higher than had been agreed.

51.2 At its highest, the Claimant’s own opinion was that the amount of time she was taking for the policy work was more than he thought was necessary. His opinion was that all she needed to do was to change “employer name” in some pre-existing templates. However, our finding of fact is that he did not state or imply to Moses that she was dishonestly charging an improper fee.

51.3 Furthermore, to the extent – if at all – that the Claimant alleges that the wrongdoing in question would have been the Respondent’s wrongdoing if (as a charity) it paid the invoices, our finding is that he did not state or imply to Moses that the Respondent would be breaching any legal obligation. Page 12 of 69

51.4 Finally, and for completeness, the Claimant did not claim – expressly or by implication – that JPCHR was carrying out work that had not been properly authorised by the Respondent in accordance with the contractual relationship between the parties.

[52]The Claimant’s alleged disclosures on this topic were not in writing. He claimed that he made protected disclosure about these issues in Autumn 2021. The Claimant and Moses shared the same office. They sometimes discussed invoices as part of their “business as usual” relationship. That is, each of the CEO and the Chair had a role to play in the payment of invoices. However, our decision is that the discussions did not include any suggestions that the Respondent should not pay the invoices or that there was anything improper about them.

[53]In his witness statement, the Claimant alleges: 24. Warning to Report Wrongdoings: In 2021, I warned Mr. Moses that the trustees' actions were not in the charity's best interest and that I would report their wrongdoings to the Charity Commission if they continued. Despite this, the trustees excluded me from key meetings and continued their detrimental actions.

[54]Our finding is that he did not inform the Respondent, in 2021, that he intended to report the Respondent to the Charity Commission because of its dealings with JPCHR.

[55]On 1 December 2021 [Bundle 230], Moses wrote to the Claimant, copied to Ms Bhudia. The letter stated that the grievance issues would be resolved in midJanuary 2022. It said the reason for that was that the Claimant and Ms Bhudia each had annual leave (on different dates) that would affect the timescale.

[56]The Claimant and Moses met on 7 January 2022. A near contemporaneous note of what was discussed appears on [Bundle 217] (which is incorrectly dated). It commenced: Formal Grievance Just to confirm my meeting with you on Friday 7th January 2022 regarding the above. At that meeting, I informed you that I had handed your grievance over to another committee member, Samantha Banton, who will proceed from hereon. The grievance panel will be made up of Samantha Banton and two other independent persons with HR knowledge. I also mentioned that seeing I had dealt with the disciplinary and other matters, I could not sit on the grievance panel as I may be called as a witness. Samantha will contact you in due course as we would like to conclude this matter as soon as possible.

[57]Our finding is that the Claimant had seen this letter (or a version of it) before 14:40 on Monday 10 January 2022 [Bundle 238]. In other words, the Claimant did get correspondence from the Respondent about the grievance on 10 Page 13 of 69 January. While he expressed some dissatisfaction with what was written to him, he did not dispute that he had been told the previous Friday that the Respondent was still intending to deal with the grievance and that Ms Banton had been appointed to deal with it.

[58]It seems clear that there are some missing emails from 7 and 10 January 2022. We hold the Respondent responsible for this, and not the Claimant. Moses told us during his oral evidence that he had not personally checked his email account for relevant emails as part of the litigation. (Though his explanation is that, during the Claimant’s employment, he had saved relevant emails separately, and that he had disclosed what he had stored in that location). In any event, included in the bundle is the Claimant’s request (in November 2021) that the Respondent pay for him to have independent legal advice, but missing from the bundle is the Respondent’s refusal of that request. The Claimant referred to (and seemingly quoted from) that refusal in his email at 14:40 on 10 January.

[59]The Claimant received a letter signed by Ms Crowther which was written on the Respondent’s headed paper. That was perfectly in order, as she was properly authorised to send the letter. It was dated 7 January 2022 [Bundle 236]. It invited the Claimant to a meeting on 14 January 2022. It included: The meeting will be chaired by Samantha Banton, Management Trustee, supported by Joyce Inoniyegha and Dwyane Philips, Independent Consultant. I will also be present to take notes. You are entitled to be accompanied at the meeting by a fellow worker or a recognised trade union representative of your choice. Please inform me as soon as possible of your chosen companion so that I can make the necessary arrangements to allow them to attend. The purpose of the meeting is to allow you to explain your grievance and find a resolution. If you wish to rely on any written material or documents, please send copies to me, if possible, no later than two days in advance of the meeting. The meeting and details of documents are confidential and should only be discussed with the person accompanying you.

[60]Regardless of whether the intention was to have a single meeting to deal with both grievances (on 14 January) or to have back-to-back meetings, we are satisfied that the intention was to hear from each of the Claimant and Ms Bhudia on 14 January 2022, and then issue outcomes in due course.

[61]Moses chased the Claimant to clarify if the Claimant believed any more information or documents were needed at 13:53 on 11 January 2022. At 16:13 the same day, the Claimant wrote to Ms Crowther: I hope you are well. I would like to arrange a meeting with you, preferably ASAP (this week) either face to face or on Zoom in regards to finalising the BCT & BCT LAT HR Matters documents, work in progress and setting date for ending current consultancy services by JPC HR Consultancy and Hand over. Page 14 of 69 Just to remind that all BCT & BCT LAT related documents/USBs and electronic versions need to be kept strictly confidential and secure as part of BCT's property.

[62]This was the first contact he had made with JPCHR about ending their arrangement with the Respondent. He had not received the approval of the Board or the Chair to end the arrangement, or discussed with them that he was planning to contact JPCHR about ending the arrangement.

[63]On 12 January, at the request of Moses, the Claimant and Moses had a discussion in a nearby park. They both agree that Moses informed the Claimant that he thought the email to JPCHR had been inappropriate and risked casting the Respondent and the Claimant in a bad light. They both agree that the Claimant did not agree with that perspective and that the Claimant stated that he was thinking about contacting the Charity Commission.

[64]We accept Moses’ account that:64.1 One of the reasons that he thought that the Claimant’s email was inappropriate was that it risked creating the appearance that he was seeking to interfere with the grievance process.

64.2 No allegation of improper billing by JPCHR was made, or stated to be a reason for contacting Charity Commission.

[65]More generally, our inference is that the Claimant’s comments and protestations were no more specific than he has been during this litigation. He has made vague insinuations that there was something improper about the fact that Ms Crowther was playing a role in the grievance investigations. However, we are satisfied that nothing he was saying stated or implied an improper financial arrangement between the Respondent and Ms Crowther (or her company).

[66]At the Claimant’s request (which was on the basis that there was not enough time from 10 January to 14 January to prepare [Bundle 242]), his grievance meeting was postponed. The Respondent therefore cancelled the plans to meet Ms Bhudia on 14 January. [Bundle 244 & 241]

[67]On 13 January, Moses wrote to the Claimant stating: Just to confirm that I have had to send Rama home as she is too upset and distraught to continue for the rest of the day. She is having to deal with the grievance meeting being cancelled I postponed until another day, which further exacerbate all the emotions. Understandably, she had built herself up for the meeting tomorrow and with it being postponed at such short notice, on the eve of the meeting, you can understand all the emotions associated with this current situation.

[68]The same day, he also wrote the following, and our finding is that this represented his genuine opinions on the matter. These were not opinions which he formed only after speaking to the Claimant in the park on 12 January. Rather, Page 15 of 69 they were the opinions that he had before that discussion, and which he had conveyed to the Claimant in an attempt to resolve the matter informally. Your email to June, HR Consultancy does not reflect the positive relationship that BCT and HR Consultancy have built up over the years (8 years I believe). It comes over as cold, void of any feelings and what's more, it clearly states that decisions have already been reached irrespective of what will be discussed at any further meeting with June. It may not be you intentions to convey what I perceived it to be but it is hard not to. If there is a need to review the work of HR Consultancy, and it is always good to do this from time to time, this could easily been arranged without the urgency as your email seems to suggest. As you know, June is in the office regularly at least once weekly, she is also on the phone which we have availed ourselves to on several occasions, and therefore could have met with her when she is in the office or talk to her on the phone. The other crucial matter is your timing. With all that is currently happening, it is not the best time. I am not saying that a review need to be had, but at this time - when you are in the middle of grievance, to which there is a close tenuous link is not good and it reflects very badly on the process. I am aware that June has responded to say she cannot make this Friday.

[69]We also accept Moses’ evidence that Ms Crowther provided her company’s services to the Respondent at a discount rate, as her contribution to the charity’s objectives. The Claimant wrote back on 13 January referring to a “50% increase” in JPCHR’s fees. This is a reference to an increase from £20 to £30 per hour, following a period of several years without any increase.

[70]In the morning of 14 January, Moses asked the Claimant for copies of the Claimant’s employment contract, and that of Ms Bhudia. The Claimant replied: Have you asked June [Crowther] for it. You can check Rama & my personal folders. I don't have my contracts handy due to my move from previous house for the reason that you know. Also due to the fire in 2017 all documents were lost therefore no contract in my file /folder . I will look into it and search for it.

[71]The Respondent acknowledges that it is true that there was a fire in 2017 and that it did a lot of damage, and many documents were lost.

[72]On Friday 14 January 2022, the Respondent suspended the Claimant. The letter [Bundle 251] included: Suspension due to allegation of Bullying and Harassment In accordance with our disciplinary policies and procedures and following our conversation on the 14 January 2022. I confirm that you are suspended on full pay pending an investigation into the allegations of bullying and harassment which may constitute gross misconduct. Page 16 of 69 The suspension is effective immediately i.e., 14 th January 2022 until further notice. We will endeavour to keep you updated regularly with the process. Once the investigation is complete, I will contact you further to arrange a meeting. This suspension is to allow us to conduct the investigation impartially and fairly, and is in no way a form of disciplinary sanction against you nor does it indicate that disciplinary action will necessarily follow. You are requested to remain available within reason should I need to contact you. Unless you have my prior written consent, you should not, at this stage, access the workplace nor contact any of our customers, suppliers or your work colleagues save for your union representative for the purpose of obtaining advice. Any attempt to influence colleagues involved in the investigation will be dealt with under the disciplinary process.

[73]Over the next few days arrangements were made for all of his keys, uniform, ID pass, and equipment had to be handed over.

[74]On 27 January 2022 [Bundle 273], the Claimant wrote to Moses stating: Following our several conversations, correspondences and my raised concerns, formal complaint and grievances, I would like to remind you once again of my unhappiness and grievances which are still not dealt with to be resolved. I have been victimised, targeted, harassed and bullied by some of the Management Committee Members and a member of staff who has been protected and benefiting from favouritism for various reasons. Instead, I have been faced with unlawful discrimination and unfair reactions as a result of my raised concerns, complaints, grievances, my unwelcomed business & operational decision (following our discussions) in regard to the BCT's HR Consultant and consequently all joined forces against me by continuously targeting and bullying me and with their witchhunt. As my line Manager you have been told and informed and HR have been told and informed with relevant matters accordingly. As per Charity Commission, the Charity's Trustees are responsible and accountable for acting in the best interest of the charity, manage Charity's resources responsibly, ensuring charity carrying out its purpose for the public benefit, etc. They should not do anything for personal gain and benefit in any way/s. Despite several requests, I have not yet received my requested document (full & Complete (word-by-word) of the RB disciplinary meeting on 15/11/2021) as one of my evidence for my raised formal complaints and for other mentioned grievances against those as mentioned above. Please provide me with a copy of the full minutes by no later than 04/02/2022. I have been hurt by those unfair actions and faced with created unfairly stressful periods.

[75]The Claimant’s allegations of discrimination and favouritism are made in his witness statement: 43. Race Discrimination: The decision to suspend me was influenced by race discrimination, as the key trustees involved were of Afro-Caribbean background, like the HR Consultant. They acted swiftly to prevent me from terminating her contract, showing a clear bias against me. Page 17 of 69

[76]In terms of any allegations of acting for “personal gain”, the Claimant’s witness statement includes: 29. Conflict of Interest Among Trustees: The trustees failed to manage conflicts of interest, particularly between Mr. Moses, Nola Slater, and Samantha Banton. Their actions were driven by personal relationships rather than the charity’s best interests.

[77]Throughout the correspondence, the litigation and the hearing, the Claimant’s allegations have remained similarly vague.

[78]During the suspension, the parties corresponded about several issues, including requests for documents made by the Claimant and decisions to extend suspension and about appointment of investigating officer for the disciplinary. Some of this correspondence refers back to earlier items which are missing from the bundle.

[79]For example, the Claimant wrote to Moses on 9 February [Bundle 285], and the email commenced: Many thanks for your email and two letters, both dated 08/02/2022 (1- Introducing CF Consultancy, 2- DASR matters). Of those two, the letter about CF Consultancy (appointed to deal with the disciplinary) is likely to have been more relevant to the matters that we have to decide. However, only the letter responding to the subject access request was included.

[80]As shown by the same email, there were some document control issues at the time, as Moses correspondence had referred to letters which the Claimant had not received.

[81]Given that one of the reasons for dismissing the Claimant was stated to be a decision that the Claimant had destroyed certain relevant documents, it is noteworthy that the Respondent had fairly loose arrangements for sharing passwords and log in details to computers. We accept the Claimant’s own evidence about that, as well as that of the other witnesses, and there is an example on [Bundle 287] of one of the other committee members writing to the Claimant using Moses’ email account.

[82]On 1 March 2022 [Bundle 290], the Claimant wrote to Moses about various matters, including the ongoing process, and that he would contact Charity Commission, and that he believed that he was being “victimised” and bullied, and that he believed that he was improperly badly in comparison to Ms Bhudia, and that he believed that the trustees and Ms Crowther had improperly “joined forces”. He reiterated again that, from his perspective, there were documents that he was entitled to have (as support for his own grievance and/or as part of Page 18 of 69 his response to Ms Bhudia’s grievance / disciplinary allegations) that he had requested and not received. He concluded the lengthy email: Once again, I would like to reiterate that, as per Charity Commission, the Charity’s Trustees are responsible and accountable for acting in the best interest of the charity, manage Charity’s resources responsibly, ensuring charity carrying out its purpose for the public benefit, etc. They should not do anything for personal gain and benefit in any way/s. I as charity’s long-term employee, have been hurt by those unfair actions, malicious behaviour, talk and intent and faced with created unfairly stressful periods with your (joined forces) continuous detriment reactions. As mentioned above and as per previous correspondences and continuously receiving unsatisfactory explanation and reasons also and being ignored, also, believing that the joined forces will continue with their damaging actions to waste Charity’s resources, therefore this is to inform you again that for the best interest of the charity and public and as part of Whistleblowing, I am going to make a disclosure to the appropriate body/ies accordingly

[83]Throughout the correspondence, the litigation and the hearing, the Claimant’s allegations have remained similarly vague.

[84]The Claimant contacted Charity Commission. No copy of anything he wrote to them is in the bundle. He contacted them some time no earlier than 1 March 2022. Their reply to him, dated 28 April 2022, is [Bundle 315]. The Charity Commission wrote to the Respondent in terms consistent with what they told the Claimant they would say. This was not a document included in the various bundles; however, we received a copy on Day 4.

[85]The Charity Commission’s letter was sent by email on Friday 6 May 2022, and on Tuesday 10 May 2022, Moses circulated it to the other trustees Our finding is that the Charity Commission’s letter was in very generic terms. It included comments about what a Charity was obliged to do; it expressed no opinion that the Respondent was failing to comply with any obligations. Moses covering email Please see the attached letter from the Charity Commission (CC) I'm not entirely sure what to say at this point. I will arrange a Management Committee meeting shortly ( hopefully sometime next week) to discuss this letter and the outcome of the commissioned investigation of alleged abuse and harassment due out in the next few days. Please treat this correspondence in the strictest manner possible. Thank you. I will be in touch.

[86]The Respondent was aware that the reason for the Charity Commission’s letter was that the Claimant had contacted it.

[87]The Claimant had been told that CF Consultancy was appointed on 8 February 2022. On 2 March 2022 (after intervening correspondence between the Claimant Page 19 of 69 and the Respondent), the Claimant was contacted directly by Clementine Femiola of CF Consultancy. [Bundle 312]

[88]CF Consultancy / Clementine Femiola produced the report shown at [Bundle 317 to 327] which bears the date 16 June 2022.88.1 The report gives a lengthy account of the author’s findings about what happened with LC. We do not need to comment on that or make findings about the accuracy of those findings.

88.2 It stated that after the disciplinary hearing against Ms Bhudia, the Respondent decided that there would be no finding of misconduct by Ms Bhudia. We accept that that is accurate (though we have not seen the raw material on which the finding is based).

88.3 The report states: This report presents the findings of an investigation commissioned by Brent Community Transport (BCT) into the performance and conduct of the Chief Executive Officer (CEO), following a series of complaints and allegations made against him. This resulted in the CEO’s suspension on full pay on 14 January 2022.

88.4 The closest it comes to identifying “the series of complaints” is as follows, and there is no list of appendices or separate documents said to be attached to the report (and the report does not specify that separate documents are attached): The focus of the investigation centres on an allegation of bullying and harassment against the CEO by a staff member, in relation to the expiry of a BCT driver’s driving licence, during which time, he continued to drive BCT minibuses for a period from July to mid-October (excluding the last two weeks of August and the first two weeks of September during Covid-19 restrictions) In addition to this, other complaints were made against the CEO by staff and management committee members in relation to his behaviour and conduct. The investigation has been undertaken by conducting one-to-one interviews with staff and management committee members and reviewing related documentation. The findings are drawn from the analysis of interviews undertaken with 12 people between March – May 2022 including the two parties directly concerned with main allegation of bullying and harassment. The interviews varied in length between just under one hour and two and a half hours. Out of the 12 interviews undertaken, nine took place in person; the remaining three were conducted on-line via MS Teams.

88.5 In other words, while there is no doubt or confusion that the “staff member” mentioned in the second line of that extract is Ms Bhudia, the other people alleged to have made complaints, or to have been interviewed, are not named. Page 20 of 69

88.6 The report stated: A list of key people to be interviewed was requested from the Chair, who initially provided six names. These people were contacted directly by the investigator to arrange the interviews which were held in locations away from BCT premises. As the interviews proceeded, further issues and lines of enquiry emerged. As a result, the investigator requested further names to be added to the list of interviewees resulting in 12 people being interviewed in total.

88.7 It also stated: In addition, the interviewee was assured of confidentiality, which meant that specific comments referenced in the report would not be attributed to any named individual, but would be presented generally as part of the findings.

88.8 Consistent with that remark, there is a list of comments included in section 5 of the report. The person who has apparently made the allegation (against the Claimant) can be worked out in some cases from the context, but names are not used, and many of the comments are extremely vague. What is clear is that part of the allegations were that, after (allegedly) becoming aware that there had been a decision that Ms Bhudia would not receive a disciplinary sanction, the Claimant began to ignore Ms Bhudia and/or treat her badly in other ways. It was reported that this was perceived to be connected to the fact that Ms Bhudia is a woman.

88.9 The report’s conclusion, in full, was as follows: From the evidence gathered from interviews with staff and management committee members as part of this investigation and the review of relevant documents, the evidence indicates that the CEO should be held accountable for potential breach of Equality legislation and gross misconduct. The qualitative data shows that there were several incidences of harassment, intimidating behaviours and failure to demonstrate a duty of care, which does not reflect the values of the organisation and the compassionate leadership expected of a CEO. Furthermore, the CEO has demonstrated through his actions the intention to bring the organisation into disrepute. This suggests a strong case for moving to a formal disciplinary process to address the complaints and allegations against the CEO, as set out in this report.

[89]The Claimant received an invitation to a disciplinary hearing [Bundle 328]. The invitation was dated 17 June 2022 and was for a meeting scheduled for 24 June. Our finding is that the Claimant’s email of 21 June [Bundle 331] accurately summarised what he was sent. That is (as well as the covering letter and disciplinary policy), he received the report but no other documents. That is, he did not receive any of the interview notes, or “complaints” about him with the invitation letter. Following further correspondence between Moses and the Claimant, the meeting went ahead on 24 June without the Claimant having Page 21 of 69 received those items. He chased them up again during the meeting and in subsequent email correspondence (for example, on 9 July 2022 [Bundle 330]).

[90]The disciplinary hearing was scheduled to reconvene on 14 July 2022. [Bundle 348]. There was ongoing correspondence between the parties in which the Claimant asked about his own grievance and about documents that he believed should be supplied to him. The meeting took place on 14 July. No outcome was given on the day.

[91]The notes from the disciplinary hearings are in the supplementary bundle [S73 and S109]. An unsigned document labelled “Disciplinary Panel’s Report” is at [S119]. According to what is printed it is “a report by the joint disciplinary panel”, who are not named, is “dated 29 July 2022”. It stated that the Claimant should leave the organisation. It said that there was a toxic environment and that the Claimant had acted “maliciously” (which we find was a reference to the disciplinary action taken against Ms Bhudia, though the document does not specify that).

[92]By letter dated 12 August 2022, the Claimant was dismissed. The letter [Bundle 361] was signed by Moses. According to the letter, the “disciplinary process” was “conducted” by: an independent panel instructed by [Moses], and consisted of Joyce Inoniyegha, Chair of the panel, Lucjana Dedaj and Dwayne Phillips, Independent Consultants.

[93]The letter also said (our emphasis): The panel therefore concluded that you be dismissed from your position of Chief Executive Officer (CEO) with immediate effect.

[94]Elsewhere, it stated (our emphasis): BCT Trustees have decided that your misconduct warranted summary dismissal, notwithstanding your loyal service record

[95]We note what is said in the letter under the heading “sex discrimination”. It compares the treatment of two male drivers (LC plus one other) with Ms Bhudia’s treatment. It included: The disciplinary panel confirmed that there was a breakdown in relationship with the HR Consultant (female) after the disciplinary panel reviewed what you believed was her role and what was actually their role, as agreed in their contract with the organisation.

[96]That was an attempt to say that, after it was decided that Ms Bhudia would not receive a disciplinary sanction, the relationship between the Claimant and Ms Bhudia broke down. From the heading, this was found to have been sex discrimination by the Claimant. Page 22 of 69

[97]Under the heading “Allegation Two” [Bundle 362], taken in isolation the reader would believe that the allegation was merely being identified. However, in context, this is the alleged rationale for upholding the allegation. In any case, no names of people alleged to have been bullied or harassed are supplied, nor any dates or descriptions of specific incidents.

[98]“Allegation Three” refers to the Claimant’s communication to JPCHR about termination of the contract between the Respondent and JPCHR. It was stated that the Claimant had attempted to do that without giving contractual notice to JPCHR. It was also stated that the Claimant had made an unjustified threat to report Ms Crowther to her professional body. (Again, as with Allegation Two, the specific sentences, in isolation, appear to simply be setting out the allegation, though, in context, this is the part of the letter in which the author is asserting that the reasons for upholding the allegation are given.)

[99]“Allegation Four” is said to be based on the Claimant’s communication(s) with the Charity Commission and also on his letters/emails to the Trustees.

[100]The letter stated: … the disciplinary panel reviewed a range of documentation provided by the organisation to clarify matters and issues raised by you It did not specifically itemise which documents that comment referred to. Its reference to a “disciplinary meeting” in October 2021 is unclear. It seems it can only be an intended reference to the meeting on 15 November 2021, not to any purported earlier investigation meeting (there being a dispute between the Claimant and Ms Bhudia about any purported earlier investigation meeting, which is not addressed in the dismissal letter).

[101]The letter included: The reason for the termination of your employment is gross misconduct, specifically that you created a ‘toxic environment’ that has been allowed to fester under your stewardship. There was clear indication that you levelled this against more than one member of staff. That you used your position maliciously at times to further what appears to be personal grievances with different employees within the organisation. This is inappropriate. You also failed to take accountability for any potential missteps over the past years, the conclusion that the chances of a successful and harmonious return to work within the organisation are very unlikely. You have stated in numerous emails that there is a breakdown of trust and confidence between you, the trustees, as well as junior members of staff and HR Consultant for whom you are required to work closely whilst undertaking your role. During the meeting it was clear that you do not understand your role or your responsibilities of CEO of a Charity. Whilst attending the disciplinary hearing you were unable to illustrate to the panel how you created a supportive environment for Page 23 of 69 staff or their issues. You were also unable to give examples to refute the allegations made directly against you.

[102]The letter stated that the Claimant would be paid holiday pay (and TOIL) up to termination date (stated to be 15 August 2022). The dismissal was with immediate effect and the letter was sent by email on 15 August 2022.

[103]By email dated 6 September 2022 [Bundle 385], the payment break down was described as follows: 1. Salary: August Salary £4400.00 gross (less the normal deductions). 2. Year 21/22 Holiday entitlement: According to our records you took 23 days during the financial year 21/22 out of 31 day (28 +3), therefore, you have 8 remaining day for that years which equates to £1624.00 3. Year 22/23 is based on 13 days which equates to £2629.00. a final total (21/22 & 22/23) of £4264.68 as shown on your payslip, up to the date of your dismissal letter.

[104]The Claimant replied [Bundle 387] asserting that the figure in the second paragraph should have been 14, not 8.

[105]The Claimant appealed. [Bundle 366]. In the appeal he repeated an assertion made in the correspondence to Trustees following suspension, namely that his actions against Ms Bhudia were motivated by health and safety concerns (and not by sex or any other improper factor). Further, he denied responsibility for any decisions about whether LC would be disciplined or not. He made various other assertions; again, to the extent that he asserted that JPCHR had done anything wrong, his allegations went no further than implying she was partly responsible for way in which the grievances and/or disciplinary had been handled, and repeating that Ms Crowther and one of the Trustees were (allegedly) friends.

[106]On 8 September 2022, the appeal hearing took place [S145]. The appeal panel made up of external consultants: Barbara Murray (Chair), David Gedze, Marcia Daigo. The comments made in the minutes [S145 to 148] accurately represent the panel’s decisions. To the extent necessary, we will refer to those specific remarks in the analysis below. For now it suffices to say that the appeal panel did not uphold any of the grounds on which the Claimant had been dismissed. His appeal against dismissal was fully successful, and not on the basis that dismissal was too harsh, but on the basis that the findings of misconduct were not supported by the evidence.106.1 For allegations one to three, the decision was (subject to variations in wording”: “No evidence was provided to demonstrate that a misdemeanour occurred.” Page 24 of 69

106.2 For allegation four, the decision was: “The Government says it is unlawful to terminate the contract of an employee because they are a whistle blower on concerns or practice issues within an organisation“

[107]The Claimant was told on the day, by the panel, that the outcome was that his appeal had been successful. He did not receive anything from the Respondent.

[108]The lack of contact from the Respondent led to correspondence from the Claimant’s solicitors. For example, there are letters dated 21 and 23 September 2022 at [Bundle 391, 393]. Neither of those letters is marked “without prejudice”, though the second does refer to the possibility of agreed severance if the Respondent refused to allow the Claimant to return to work.

[109]We have not got the full set of subsequent correspondence because (as the parties both confirm) some without prejudice discussions took place about the possibility of a severance agreement. The parties have not waived “without prejudice privilege” over the specific details of what was discussed. However, the existence of those discussions is relevant (according to the Respondent) for two reasons:109.1 Firstly, it explains why there was not prompt and open correspondence to confirm reinstatement and/or to make return to work arrangements.

109.2 Secondly, according to the Respondent, it was necessary for the Respondent to establish the Claimant’s contractual entitlements as part of the settlement discussions, and that led (according to the Respondent) to decisions that a disciplinary investigation should take place into newly discovered matters.

[110]On 29 September 2022, the Claimant emailed Moses about non-payment of salary, and chasing a reply to his solicitors’ correspondence. [Bundle 395]. His solicitors also sent a chaser. [Bundle 397]

[111]After further correspondence, a letter was sent to the Claimant dated 11 November 2022 [Bundle 401] which stated that he was suspended. It said that there were two disciplinary allegations: i) There are unaccounted for payments made to you going back over a number of years and financial irregularities around your salary; and ii) The disappearance of your HR personnel file.

[112]The letter said the Claimant would be paid normally while suspended, and Holiday Page 25 of 69 Should you wish to take annual leave during the period of your suspension, your annual leave dates must be approved by me, chair, in advance. You must request annual leave if you wish to take holiday, or make yourself unavailable in any other way, while you are suspended.

[113]After some further correspondence, including the Claimant stating that he was considering resigning and alleging constructive dismissal, on 1 February 2023, Moses wrote to the Claimant to invite him to an investigation meeting [Bundle 406]. The meeting was scheduled for 10 February. Amongst other things, the letter included: The purpose of this meeting is to investigate financial irregularities and managerial misconduct which have come to light at the latter part of last year, in line with BCT Disciplinary Policy and Procedure (see attached). As you are on paid suspension you will be required to attend this meeting. … The meeting will be conducted by Stuart Goodden, FCIPD an independent consultant of Experia Solutions.

[114]It gave no other information about the allegations.

[115]On 2 February [Bundle 408], the Claimant replied. Amongst other things, he stated: I have taken legal advice and I regard this as no more than a fishing exercise and I am prepared to a end a meeting of course, provided I am given full details in advance of what are the issues involved. What do you mean by ‘financial irregularities’? What do you mean by ‘managerial misconduct’? Before I can a end, I will therefore need an answer to those matters and it may be best that if you have appointed a third party to investigate, they make contact with me.

[116]Moses replied: Thank for your email. However, this is an internal business investigation to ask questions of you as our employee, about irregularities in payments of bonuses, holiday pay and salary increases over a period of several years to determine if there is any evidence of wrong-doing. At this stage, the extent of the allegations has yet to be determined. … If the investigation finds that there is evidence of wrong-doing you will receive a fully particularised letter.

[117]The Claimant did not attend the meeting on 10 February. At [Bundle 410], there is an investigation report. The author of the report has not been a witness. The report refers to some “supporting documents”, being: Page 26 of 69 1. Exhibit 1 – Spreadsheet of Mr Eynollahi’s earning paid through the payroll system from June 2014 through to September 2022 2. Exhibit 2 – Letter from Moses (Chair BCT) to Mr Eynollahi dated 3rd April 2018 3. Exhibit 3 – Letter from Moses to Mr Eynollahi dated 2nd March 2020 4. BCT Disciplinary Policy Procedure 5. Letter of invitation to investigation meeting on 10/02/23 6. CEO Job Description (undated)

[118]Although no documents marked “exhibit 1” etc appeared in the bundle, and although no “exhibits” were directly behind the report in the bundle, it is common ground that:118.1 Exhibit 1 was [Bundle 757]

118.2 Exhibit 2 was [Bundle 155]

118.3 Exhibit 3 was [Bundle 174]

[119]We should also say that Exhibit 1 was a table with 7 columns. They were, from left to right:119.1 Month

119.2 Salary

119.3 Extra / Overtime

119.4 Holidays

119.5 Adjust Salary

119.6 Total

119.7 Yearly

[120]The report said that the terms of reference were: Terms of reference: To investigate alleged theft through the payroll system by the CEO Mr Siamak Eynollahi over a period of several years

[121]The section “background” commenced: Mr Eynollahi has been suspended from his duties since 14th January 2022, for a matter unrelated to the above allegation. During that period the management of the payroll has been assumed by Hosine Malki, Financial Officer. Prior to this the payroll was under the sole management of Mr Eynollahi, no one else was involved. Hosine alerted the Trustees that large, regular unexplained payments had been made to Page 27 of 69 Mr Eynollahi and that there was no supporting evidence to support the approval of these payments other than two documents originating from Moses, the Chair of the Trustees. Moses, who is not an employee, has line management responsibility for Mr Eynollahi and should have sanctioned any such payments. There is no suggestion that Moses and Mr Eynollahi colluded in this theft.

[122]The section “Investigation process” commenced: The investigation was predominantly document based following a discussion with Hosine and Samantha about a summary spreadsheet of payroll payments (Exhibit 1) There are only two further documents that directly relate to the payroll and are letters from Moses to Mr Eynollahi (Exhibits 2 and 3) These letters were discussed with Moses on Friday 10th February 2023 as was the spreadsheet itself.

[123]The report includes the sentence: ‘It was communicated to Mr Eynollahi that the meeting was to ascertain why payments were made under the headings “Salary, Extra/overtime and Holidays”’.123.1 The document referred to in the report as “Exhibit 1” was not sent to the Claimant before the investigation meeting.

123.2 Moses was aware of that. The report does not make clear if Stuart Godden knew that it had not been sent to the Claimant (and, at the disciplinary hearing, when presenting his report, Mr Godden asserted that it had been sent to the Claimant before the investigation meeting).

123.3 The report does not comment on what Mr Godden thought the document was. That is, how it came into existence, and why, and to what extent it was created by human and to what extent it was computer-generated. Moses evidence to the Tribunal was that, at the time that there were without prejudice discussions about settlement, Moses asked for details of the Claimant’s salary, and the person named in the report as “Hosine Malki, Financial Officer” told him that it was difficult to track down written confirmation of the Claimant’s salary, and authorisation for various payments. Moses asked them to create a document with details of what the Claimant had been paid, and they did so, and that became “Exhibit 1”.

123.4 The column “monthly” lists each month June 2014 to September 2022, in order, and each row then contains information under the other headings.

123.5 The bottom of the table contains the word “total” rather than a month, and then there are figures under each of the other column headings.

[124]The report included a section: Summary of written and physical evidence: Page 28 of 69 Having reviewed the spreadsheet (Exhibit 1) with Hosine, Moses and Samantha it is clear that there is no documentary evidence, other than two letters (Exhibits 2 and 3) relating to specific issues, that provide valid reasons for the frequency and size of payments made by Mr Eynollahi to himself through the payroll system over a sustained period covering approximately six years. Moses has stated that he only authorised very limited payments that are contained in the two letters and that he would not have authorised the large regular payments highlighted on the spreadsheet. Hosine confirmed that all employees, where they are paid overtime, are required to complete appropriate forms and obtain written permissions. He confirmed that there are no documents at BCT referring to permissions for the payments to Mr Eynollahi.

[125]It included a section which commenced: Facts established: 1. That you systematically stole monies from your employer through the control and manipulation of the payroll system over a period up to seven years. An estimation of the extent of this theft is provided below and taken from the spreadsheet attached (Exhibit 1) A) Column headed Extra/overtime October 2015 to March 2020 amounting to approximately £45,000.00 B) Column headed Holidaysa. December 2014 £2,261.56

b. March 2015 £1,292.32

c. July 2018 to November 2021 £39,260.92 C) Despite agreement to reduce your working week from five to four days from 1st July 2018 to 2nd March 2020 for reasons “to manage the financial position better” you continued to pay yourself your full salary equating to an extra payment of £18,480.00 D) That in April 2018, you awarded yourself a pay increase of 19% without the approval of the management committee resulting in an additional payment up to September 2022 of £35,700.00 2. That you have removed all documents relating to your employment for the sole purpose of impeding the investigation of the above.

[126]By email of 14 February [Bundle 416], Moses sent the Claimant the investigation report and “supporting documents”, and the letters which are at [Bundle 419] and [Bundle 421].126.1 The first letter commented on the Claimant’s non-attendance at the investigation meeting and the second letter invited him to a disciplinary hearing on 22 February.

126.2 The Claimant was warned he might be dismissed and told he could be accompanied. Page 29 of 69

126.3 The allegations were those cited above from the “facts established” section of the investigation report.

126.4 The letter stated: The Hearing will be conducted by Dr Mary Golden, FCIPD an independent consultant of Experia Solutions, a trustee and notes will be taken by Jocelyn Fisher who will also provide HR advice.

[127]The Claimant replied on 16 February [Bundle 417] querying why there had been a 5 month delay from his successful appeal against the original dismissal, commenting on the fact that he had not been given any detail of the allegations until receipt of the 14 February email, and asserting(i) that Moses knew about each payment and

(ii) that now he had details of the allegations, he could now account fully for each alleged improper payment, but he asked for the hearing to be deferred to allow him a two week period to collate that defence.

[128]On 17 February [Bundle 423], Moses wrote to decline to delay the hearing, and stated his reasons.

[129]On 20 February, the Claimant emailed to say that Beresford Peters would accompany him, and asked fo the documents to be sent to Beresford Peters. The same day, he emailed the document that appears at [Bundle 429 to 432], which was his response to the allegations.

[130]On 22 February, Moses wrote to Dr Golden supplying the 16 documents itemised in his letter [Bundle 433].

[131]The meeting went ahead and the minutes are [S178].131.1 The list of those present was: Mary Golden (MG) Independent Consultant Experia Solutions- Chair Stuart Goodden (SG) Independent Consultant Experia Solutions – Acting Investigator Nola Slater (NS) Trustee of Brent Community Transport (BCT) Siamak Eynollahi (SE) Employee Brent Community Transport (BCT) Beresford Peters (BP) Staff Representative Brent Community Transport (BCT) Jocelyn Fisher (JF) Independent Human Resources Consultant (JPCHR) Note-taker.

131.2 Although the minutes say that each person was asked to introduce themselves and their role, the minutes do not record what each person stated was their role.

131.3 During the meeting, the Claimant stated: Page 30 of 69 I am presenting 3 letters, 2 dated 13.3.2017 and 1 dated 26.5.2020.

131.4 He was told to supply the originals of those letters and also his payslips.

131.5 During the hearing, the Claimant gave his version of events in relation to why – according to the Claimant – the Respondent did hold the information that supported that all the payments received were properly authorised. Amongst other things, he referred to the Sage payroll system and the evidence about which documents had been handed over when he was suspended. He also referred to specific committee meetings.

131.6 Dr Golden stated: … that she would:

• Go back to the organisation to check the details of the Management Committee meeting.

• That she would need to see the originals of the 3 letters provided by SE

• Speak with the Chair and Finance Officer.

131.7 The minutes record that the meeting ended as follows: Informed SE that we could only comment on the information provided and discussed previously. That the job description was not part of and of the previous discussion. Informed SE that the meeting was adjourned, and she would make contact with him if she required further information. She also reminded him to bring the original documents in if possible tomorrow.

[132]After the meeting, the Claimant wrote to Moses and Dr Golden [Bundle 435] Following the disciplinary hearing, could you please arrange for me to have my full access to BCT’s offices, systems, documents, depot, and storage to come and help in providing required evidences accordingly as soon as possible. I believe that my computer and office have been kept safe and secure as part of evidences.

[133]Dr Golden replied: The investigatory stage of this disciplinary was concluded with the disciplinary hearing that you attended on 22nd February 2023. During that meeting you produced documents which I allowed to be submitted despite you having been instructed that no documents could be submitted on the day of the hearing. I also agreed that we would continue an internal evaluation of any documentation that might exist. However, you were informed that all documents relating to your employment seemed to have been removed from the premises other than payslips on the Sage payroll systems which we have interrogated. I must remind you that you are also suspended under investigation for what is considered gross misconduct relating to alleged theft so it would be entirely Page 31 of 69 inappropriate to allow you access to systems or the premises in those circumstances If you have any further documents in your possession you may submit them on Monday the 27th February at 9am at the Willesden Centre and we will decide whether they are admissible or relevant

[134]That reply was signed off: “Dr Mary Golden, Chair of the disciplinary hearing (on behalf of the disciplinary panel)”

[135]We note the further emails between them [Bundle 437, 438], [S187]. It suffices to say that, on 24 February 2023, part of what the Claimant wrote to Dr Golden stated: Regarding the employment file I have explained at the meeting and showed the BCT letter in response to Data subject access request back in February 2023 and documents attached to that to Moses email accordingly. Also, referred to other relevant documents and emails with employer. As to further documents, as mentioned at the meeting, I do not have access to workplace and documents. The employer has full access to those documents and has to produce them accordingly.

[136]A receipt of what Dr Golden received on 27 February is [Bundle 440].

[137]On 1 March 2023, Nola Slater sent an email to the Claimant with two attachments. The email stated: Dear Siamak Please ignore the previous email sent to you (yesterday) as the headed paper forwarded to me was an old version. Note also some minor corrections in the letter and the report. Please find the attached documents. Nola Slater

[138]The attachments were named:138.1 Letter to SE Disciplinary outcome.pdf

138.2 Disciplinary report for hearing with Mr. Se.pdf

[139]We do not have the earlier email mentioned.

[140]We have two versions of the dismissal letter: [Bundle 441] and [S189]140.1 Each bears the date 28 February 2023.

140.2 They have different addresses at the top of the headed paper. Page 32 of 69

140.3 The one in main bundle refers to Mr Peters as “your companion” and the one on the supplementary bundle refers to him as “the staff representative”.

140.4 The one in main bundle signs off “Ms Nola Slater Trustee, BCT” and the one on the supplementary bundle, “Ms Nola Slater Trustee, On behalf of BCT”.

140.5 Our finding is that the item in the supplementary bundle is the one sent on 1 March 2023 and the one in the main bundle is the one sent “yesterday”.

[141]The main bundle contains no version of the second attachment to the 1 March email. However, that attachment is the document at [S192-198]. That document states at the bottom: Dr Mary Golden and Ms Nola Slater 28th February 2023

[142]The letter stated that the Claimant was dismissed with immediate effect and that the Charity Commission and the police would be informed. It said that the Claimant had the right to appeal, “subject of course to any criminal proceedings”.

[143]The conclusions on the 5 allegations set out in the investigation report (1A to 1D, and 2) were that 1A and 1C were not upheld, and the others were.

[144]So the allegations about the column “extra/overtime” were not upheld and nor were the allegations about paying himself for 5 days when it should have been 4.

[145]For 1B, the decision was “Allegations of overtime and some holiday pay upheld” and “Please see disciplinary report. Some payments mentioned here are actually paid as overtime not holiday pay”. The report stated: The column headed holidays in the printout is slightly misleading. [Mr] Eynollahi asserted that the green column headed ‘holidays’ is in fact overtime and holidays. The panel did an analysis of all the pay slips for the period of time and separated out overtime from holidays. Findings were as follows: Overtime: Mr. Eynollahi asserted that he had permission for overtime and that he had completed request forms which would be found in the payroll systems. Mr. Malki had already said that there were no authorized or unauthorized overtime request forms for Mr. Eynollahi to be found in any of the systems. Moses was quite clear that whilst he may have signed an occasional overtime request this was not to the scale and extent of the monies paid. Therefore, on the balance of probability in the absence of any supporting evidence for authorized payments the panel’s view is that overtime payments were not authorized. Holidays: The panel had two letters from Moses that allow Mr. Eynollahi to be paid for some holidays not taken. At the hearing Mr. Eynollahi produced three further letters. The panel asked him to bring the originals in for them to view on Monday 27th February 2023. Mr. Eynollahi Page 33 of 69 brought five letters purporting to be from Moses in (two were about his appointment as CEO and were clearly original) The other three listed below were copies. These were as follows.:• 13/03/17 relating to the CEO’s post.

• 13/03/17 relating to annual leave for 2016/7. This did not state the number of days that could be paid. Moses was interviewed by the panel on 23rd February and Monday 27th February. He is clear that he did not write this email and commented that he did not have a ‘wipe the slate clean’ policy with regard to annual leave. He would have insisted that Mr Eynollahi would have been required, at the very least, to carry over five days annual leave as would be required of all staff. In April 2017 Mr. Eynollahi was paid £3253.85 in holiday pay with no authority. We consider that, on the balance of probability this email had not been written by Moses as it purported to be.

• 26/5/20 which asserts that 12 days holiday pay can be paid in May 2020. Moses also denies that he wrote this email. He was very clear about this and in fact it struck the panel that this memo was written in a font that is never used by Moses. We consider that, on the balance of probability this email had not been written by Moses as it purported to be. In fact, 32.5 days annual leave were paid between May and August 2020 with no authority The panel also looked in detail at the clocking in records and we took 2019/2020 as a random sample. Some themes emerged:

• From 2019 until March 2020, Mr. Eynollahi was working 4 days per week. He should have reduced his annual leave by 20%. This did not happen. The panel consider that as CEO, this was a reduction that should have been clearly apparent to him and that he chose to ignore.

• Mr Eynollahi in fact did appear to take a significant number of days (sometimes a week at a time) off, notwithstanding the fact that he said he sometimes did not clock in and out. A reasonable employer would expect that all those using the clocking in system would do this correctly and particularly the CEO who we understand was stringent in his application of rules and regulations impacting on other employees.

• A regular pattern where Mr. Eynollahi clocks in the evening (6pm, 5.50, 7.32) but no clocking in and out as on other days. Some days he clocked in but not out. This raised more questions for the panel about whether he worked those days and, in any event, how the overtime he claimed could be justified as there are no reliable records to depend on. In conclusion, the panel find that Mr. Eynollahi did pay himself for substantial amount of unauthorized overtime and holiday pay which was also not authorized and in any event his allocation of annual leave should have been reduced as he knew full well.

[146]The report document (at [S194]) included the following paragraph: The hearing on 22nd February 2023 was chaired by Dr Mary Golden, FCIPD (external consultant from Experia Solutions Ltd) and Ms. Nola Slater, Trustee also was on the panel. Mrs. Jocelyn Fisher (HR from BCT) was the note taker.

[147]At the end of the discussion of the first allegation, the report states: The panel therefore find this allegation not upheld Page 34 of 69

[148]The final paragraph of the report states: The panel was disappointed at the conduct of Mr. Eynollahi throughout this investigation. The disciplinary policy and procedures are intended to be applied to all employees. As CEO Mr. Eynollahi has a stricter duty to abide by the policies of the organization. Indeed, we are sure that if he was conducting an investigation he would insist on the application of the policy and procedures in their fullest. Mr. Eynollahi at the outset sought to avoid any engagement in the investigation process thus hindering the investigation and, on his attendance at the hearing attempted to provide various pieces of information which he been specifically been requested to provide to the hearing in advance. We find this an attempt to undermine the procedure intentionally. This is not the behaviour we would expect of a CEO and we consider this to be a fundamental breach of trust and confidence.

[149]Dr Golden’s statement includes: 2. I was commissioned by Brent Community Transport in January 2023 to conduct an investigation over alleged financial irregularities and managerial misconduct by the Claimant. My colleague, Stuart Goodden, FCIPD, MA was appointed to conduct the investigation to determine whether there was a disciplinary case to answer. 5. The Claimant was then invited … to attend a disciplinary hearing … which I chaired alongside Ms Slater, a Trustee at BCT (please see pages 416-418 of the bundle). ... Mr Goodden presented his investigation report, and the panel allowed the Claimant to ask questions …,. The panel then turned to each allegation. 6. Due to the seriousness of the allegations that were upheld and the Claimant’s refusal to cooperate fully with the investigation, the panel decided that, notwithstanding the seriousness of the upheld allegations were sufficient for a gross misconduct in themselves, and position [reword sentence] as Chief Executive Office the BCT had lost trust and confidence in him (please see pages 441-443 of the bundle). 7. In terms of the process used to determine our findings, Ms Slater and I considered a substantial amount of evidence that was provided in the investigation report and also the answers the claimant provided us with. The allegations against the claimant were of an extremely serious nature relating to fraud. We considered whether there was an alternative to dismissal but could not see any way any other sanction would be appropriate. The trust and confidence in the relationship between the claimant and the organisation was broken completely. 9. I can confirm that Ms Slater and I went through a thorough a detailed consideration of the evidence of the case and that the Claimant had an opportunity to put forward evidence and their account of events and an explanation at the disciplinary meeting. …

[150]In other words, in those extracts, and elsewhere in the statement, the implication was that the dismissal decision was taken by two people, Dr Golden and Ms Slater (with Dr Golden as chair). The Respondent did not call Ms Slater as a witness.

[151]In fact, during his oral evidence, Moses stated that the actual decision to dismiss the Claimant was made at a meeting at which he, Nola Slater and Samantha Banton reached a unanimous decision. We accept that this decision was taken Page 35 of 69 after the hearing and (of course) before the Claimant was notified of the decision (which was on 28 February 2023).

[152]In accordance with the outcome letter, the Claimant sent his appeal against dismissal to Samantha Banton on 3 March 2023 [Bundle 445]. His covering letter for the appeal [Bundle 446] asked that Ms Banton recuse herself from dealing with the appeal. His substantive grounds of appeal were [Bundle 448-453].

[153]The disciplinary hearing minutes were sent to the Claimant on 3 March 2023 [Bundle 455-462].

[154]The Claimant’s appeal was acknowledged on 7 March 2023 and the hearing arrangements were supplied on 9 March 2023, in letters from Ms Banton. The Claimant was told that the hearing would be on 16 March 2023 and that he could be accompanied. He was informed: The panel will consist of Natalie Styles (Chair), supported by Amerjit Walia; who are both external HR Consultants. The management case will be presented by Mary Golden. With the meeting noted by Jocelyn Fisher.

[155]On 10 March 2023, the Claimant responded, disagreeing with how his grounds of appeal had been characterised / summarised by Ms Banton, and querying the role of Dr Golden at the appeal hearing.

[156]At 9.25am on 15 March 2023, the Claimant sent an email to Ms Banton which Secondly, following my email yesterday 14.03.2023 @ 17:44 confirming that Mr Kanji Barot will accompany me at appeal hearing, this is to update and inform you that my colleague who was attending has withdrawn at last minute.

[157]The appeal hearing went ahead on 16 March 2023 [Bundle 481].

[158]The Claimant had not received a response from the Respondent to the 9.25am email the day before. As per Ms Styles’ evidence, and the minutes of the hearing, and the document at [Bundle 476], our finding is as follows:158.1 On being notified that the Claimant was not bringing Kanji Barot, the Respondent contacted Mr Peters (the Claimant’s companion from the disciplinary hearing) to see if he could attend.

158.2 Mr Peters had previously been contacted by the Claimant (on 14 March 2023) but had not agreed with the Claimant to attend.

158.3 Mr Peters originally told the Respondent (as he had told the Claimant) that he was unable to attend because of a driving job. Upon the Respondent offering to reimburse his lost income, he said he was willing to attend. Page 36 of 69

158.4 Mr Peters contacted the Claimant to say so, but the Claimant declined the offer.

158.5 The Claimant therefore attended the appeal hearing without a companion.

158.6 The matter was resolved as follows: … after discussion with Mr Eynollahi and a number of adjournments, Mr Eynollahi agreed that he would be happy to proceed if the meeting was recorded. Miss Styles recorded the meeting on her laptop and then sent a copy of this to Mr Eynollahi that evening.

[159]The appeal was unsuccessful. Ms Banton’s email at 5pm on 24 March 2023 attached the outcome letter [Bundle 479] and decision [Bundle 481-485].

[160]The outcome letter was signed (electronically) by Ms Banton and Ms Slater. It said: We write to inform you of the outcome of this meeting. Please find attached the decision by the Appeal Panel (Please see Attached). A hard copy of this will also be sent to you via recorded delivery.

[161]We accept that the decision was made by Ms Styles and Mr Walia, and that the decision document attached to the covering letter was produced by Ms Styles and Mr Walia to record their assessment of the evidence and the reasons for the decisions.

[162]We note the full contents of the decision document. Because of the reliance placed on it by the Claimant, we quote the following extract (our emphasis). Mr Eynollahi presented one document as new evidence at the hearing, this was a balance sheet from 30 March 2021 which was prepared for the Management Committee Meeting and appears to have Moses’ signature at the bottom.. Given the increase was actioned in 2018 the panel did not accept that this document indicated authorisation of an increase. It is not known why Moses signed this document but it merely informs the Management Committee of the current salary spend. My Eynollahi reiterated that by virtue of the fact that the annual accounts had been signed off by the Board and the Chair of the Board of Trustees, this meant that any payments and increases were approved as they were not queried at the time. The panel did not accept this. Salary increases should be explicitly signed off and they agreed with the disciplinary outcome that as CEO, Mr Eynollahi would have been aware of this.

[163]The Claimant relies on the reference to “balance sheet” for the following reasons:163.1 The document was not a “balance sheet” (according to the Claimant).

163.2 It was Dr Golden, and not the Claimant, who referred to it (in the appeal hearing) as “balance sheet” which shows – the Claimant argues, that Ms Page 37 of 69 Styles (and the other panel member, Amerjit Walia) placed too much emphasis on what Dr Golden said, and/or not enough attention to what he said.

163.3 The reference to the document as a “balance sheet” shows that the appeal panel fundamentally misunderstood a key piece of evidence. The document was (on the Claimant’s case) direct evidence that payments had been duly authorised and signed off by Moses. The document was not said to be evidence that merely showed that Moses had signed off certain accounts, in circumstances in which the accounts had included the details of the payments.

[164]The decision document records the Claimant stating once again that he believed that relevant documents to support his position where in the Respondent’s possession. He asked to go into the office to show staff where those items were. The document records “The panel informed him that this was not possible but asked him to state where this evidence could be found”. We accept Ms Styles account that she asked the Respondent and that the Respondent refused to allow this. The document goes on to say that Ms Fisher was asked to do a search. She did so.

[165]Later the decision document states: Following the appeal hearing, Jocelyn Fisher, assisted by Nola Slater did a thorough search for the recordings of the March 2018 and the March 2021 management committee meeting. They found the recording of the March 2021 meeting and listened to it, there was no mention of Mr Eynollahi’s 2018 salary increase being approved. The panel were unable to view the recording due to GDPR restrictions related to what had been agreed with the attendees of the meeting in relation to the recording. Given that the meeting was 3 years after the increase was actioned, the panel felt it unusual that the increase would have been authorised at this meeting and accept the evidence of Nola Slater and Jocelyn Fisher that it was not mentioned. There was some confusion in relation to the March 2018 minutes. Initially, the panel were told they did not exist and neither did a recording. Miss Styles queried this as the disciplinary report refers to the fact that there was ‘no mention’ of Mr Eynollahi’s increase in the March 2018 minutes. This suggested that the disciplinary panel had seen them. Jocelyn Fisher therefore searched again and found two documents:• Minutes of a Management and Team meeting dated 27 March 2018

• Management Committee Meeting Minutes dated 16 April 2018 Neither of these recorded authorisation to increase Mr Eynollahi’s salary. The Management Committee Minutes dated 16 April 2018 did however discuss Mr Eynollahi reducing his hours from 5 days a week to 4 days a week. Mary Golden confirmed that they had not seen either of these documents during the disciplinary process and apologised that the statement in the report could be interpreted in that way. Page 38 of 69 The evidence from Moses that he never approved an increase and the letters sent to Mr Eynollahi at the time omitted to mention any salary increase still stands.

[166]The Claimant was sent a P45 which gave his leaving date as 31 March 2023. [Bundle 486; 487]. It gave a figure of £52664.68 for salary in the year to date. The payslip with the date 31 March 2023 is at [Bundle 755]. That said that pay for year to date was £55145.06. On the face of it, the Claimant was paid something for holiday, but not salary, in March 2023, so consistent with the termination letter. Holiday

[167]Our finding is that, as of the 12 August 2022 dismissal, the Claimant was payment in lieu of the outstanding holiday entitlement which he had at that time. When he was reinstated, he was not required to reimburse the sum that he had received. Thus the sum to which he was entitled on the eventual termination date was only to be calculated by reference to further holiday accrued later than 12 August. The Law Equality Act 2010 (“EQA”)

The Law

[168]The burden of proof provisions are codified in s136 EQA and s136 is applicable to all of the contraventions of the Equality Act which are alleged in these proceedings.(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[169]It is a two stage approach.169.1 At the first stage, the Tribunal considers whether the Tribunal has found facts - having assessed the totality of the evidence presented by either side and drawn any appropriate factual inferences from that evidence - from which the Tribunal could potentially conclude - in the absence of an adequate explanation - that a contravention has occurred. At this first stage it is not sufficient for the Claimant to simply prove that the alleged treatment did occur. There has to be some evidential basis from which the Tribunal could reasonably infer that there was a contravention of the act. The Tribunal can and should look at all the relevant facts and circumstances when considering this part of the burden of proof test. Page 39 of 69

169.2 If the Claimant succeeds at the first stage then that means the burden of proof is shifted to the Respondent and the claim is to be upheld unless the Respondent proves the contravention did not occur.

[170]In Efobi v Royal Mail

[2021] UKSC 33

, the Supreme Court made clear that the changes to the wording of the burden of proof provision in EQA compared to the wording in earlier legislation do not represent a change in the law. Thus when assessing the evidence in a case and considering the burden of proof provisions, the Tribunal can have regard to the guidance given by the Court of Appeal in, for example, Igen v Wong

[2005] EWCA Civ 142

and Madarassy v Nomura International

[2007] EWCA Civ 33

[171]As per paragraph 57 of Madarassy, “could decide” in section 136(2) EQA is equivalent to: a reasonable tribunal could properly decide from all the evidence before it.

[172]The burden of proof does not shift simply because, for example, the Claimant proves that there was a difference in treatment (in comparison to someone whose relevant protected characteristics were different). Those things only indicate the possibility of discrimination. They are not sufficient in themselves to shift the burden of proof; something more is needed.

[173]It does not necessarily have to be a great deal more: Denman v Commission for Equality and Human Rights

2010 EWCA Civ 1279

. For example - depending on the facts of the case - an evasive or untruthful answer from a Respondent or an important witness, could be the “something more” that is required. In some circumstances, it may simply be the context of the act itself. In SRA v Mitchell EAT 0497/12, the EAT upheld a tribunal’s decision that the burden of proof shifted based on a finding that the employer had given a false explanation for the less favourable treatment. That being said, it is important for us to remind ourselves that the mere fact alone that a Tribunal rejects the employer’s explanation for some particular act or omission does not mean that the burden of proof necessarily shifts, see for example Raj v Capita Business Services EAT 0074/19.

[174]Recent EAT cases have re-emphasised the importance of actually adhering to the two stage approach set out in section 136. We have taken note of the comments in Field v Steve Pye and Co (KL) Limited and ors

[2022] EAT 68

and of the fact that several subsequent EAT decisions have cited those comments with approval.

[175]As per Essex County Council v Jarrett

[2015] UKEAT 0045/15

/0411, where there are multiple allegations, the Tribunal has to consider each allegation separately when determining whether the burden of proof has shifted in relation to each one. Page 40 of 69175.1 That does not mean that we must ignore the rest of the evidence when considering one particular allegation.

175.2 The opposite is true. When there are multiple allegations, and/or a lot of facts found as part of the background information, a Tribunal has to stand back and consider all of the evidence in the round to consider whether any inference of discrimination/victimisation should be drawn: see Qureshi v Victoria University of Manchester. There must be no failure to consider ‘the bigger picture’, as it was described in Humby v Barts Health NHS Trust

[2024] EAT 17

175.3 We assess separately, for each allegation, whether the burden of proof shifts or not, taking into account all of the facts which we have found. Time Limits for EQA complaints

[176]In EQA, time limits are covered in s123. Taking account of early conciliation, all the Claimant’s discrimination complaints are in time. Definition of Direct Discrimination – section 13 EQA

[177]Direct discrimination is defined in s.13 EQA. (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[178]There are two questions: whether the Respondent has treated the Claimant less favourably than it treated others (“the less favourable treatment question”) and whether the Respondent has done so because of the protected characteristic (“the reason why question”).

[179]For the less favourable treatment question, the comparison between the treatment of the Claimant and the treatment of others can potentially require decisions to be made about whether another person is an actual comparator and/or the circumstances and attributes of a hypothetical comparator. Paragraphs 54 to 65 of Martin v The Board Of Governors Of St Francis Xavier 6th Form College

[2024] EAT 22

provide a recent and clear summary of the types of arguments about comparators (and the proper role of section 23 EQA) that might be presented to us, and we have taken it into account.

[180]When considering the “reason why question” for the treatment we have found to have occurred, we must analyse both the conscious and sub-conscious mental processes and motivations of the decision makers which led to the Respondent’s various acts, omissions and decisions.

[181]The mere fact alone that a Respondent, or a particular individual, has behaved unreasonably and/or treated the Claimant badly or unfairly will not, in itself, be Page 41 of 69 sufficient to cause the burden of proof to shift. For one thing, there may also need to be consideration of whether the “bad” treatment is comparable to the way in which others were treated. However:181.1 The greater the difference between the Claimant’s treatment and that of another employee in similar circumstances, the more likely it is that the Tribunal will decide that an inference of discrimination could be drawn. Likewise, the more closely the circumstances of the Claimant and the alleged comparator match, and/or the greater the number of comparators who have had “better” treatment, the more likely it is that the burden of proof will shift.

181.2 The more unreasonable the treatment, the more likely it is that the Tribunal will decide that it calls for an explanation and the more likely that the Tribunal might decide that it is possible to infer that a hypothetical comparator would have been treated differently.

181.3 Where the Respondent offers an explanation for the Claimant’s treatment (and/or the differences between the Claimant’s treatment the alleged comparator’s treatment), then the burden of proof might shift where the Tribunal decides that the explanation is dishonest, and/or if different explanations have been put forward which are contradictory to each other. Protected Disclosures

[182]As per section 43A ERA “protected disclosure” means a “qualifying disclosure” which is made by a worker in accordance with any of sections 43C to 43H

[183]Section 43B defines “qualifying disclosure”: (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.

[184]In order for a communication to be a qualifying disclosure184.1 Firstly, there must be a disclosure of information. Page 42 of 69

184.2 Secondly, the worker must believe that the disclosure is made in the public interest.

184.3 Thirdly, if the worker does hold such a belief, it must be reasonably held.

184.4 Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f) of section 43B(1).

184.5 Fifthly, if the worker does hold such a belief, it must be reasonably held. Unless all five of these conditions are satisfied there will be not be a qualifying disclosure. See Williams v Michelle Brown AM

UKEAT/0044/19/OO

[185]There must be a disclosure of information. A disclosure of information can be made as part of making an allegation, see for example Kilraine v London Borough of Wandsworth

[2018] EWCA Civ 1436

.185.1 The information disclosed has to have sufficient factual content and specificity such as to be capable of satisfying all of the requirements mentioned in the previous paragraph.

185.2 However, the worker does not need to specifically use the words from the section in order for the disclosure to qualify.

[186]The public interest parts of the requirement were considered in Chesterton Global Ltd v Nurmohamed. Neutral Citation Number:

[2017] EWCA Civ 979

. Some of the relevant points that were highlighted are:186.1 The Tribunal has to ask whether the worker believed at the time that they were making it that the disclosure was in the public interest and whether, if so, that belief was reasonable.

186.2 The Tribunal must not substitute its own view of whether the disclosure was in the public interest for that of the worker. The Tribunal might need to form its own view on that question as part of its analysis of what (on the balance of probabilities) the employee, in fact, did believe at the time. However, it is not the Tribunal’s view of the public interest that is determinative of this point.

186.3 The necessary belief is simply that the disclosure is in the public interest. The particular reason(s) that the worker believes that it is in the public interest are not of the essence. What matters is that the Claimant’s subjective belief was objectively reasonable.

186.4 While the worker must have a genuine and reasonable belief that the disclosure is in the public interest, that does not have to be the predominant motive for making the disclosure.

186.5 Parliament has deliberately chosen to not define the phrase “in the public interest” and the reason for that is that it is Parliament’s intention to leave it to Employment Tribunals to apply that phrase as a matter of educated impression. There is, therefore, no “checklist” of factors that will determine Page 43 of 69 whether it was reasonable for the worker to believe that the disclosure was in the public interest. However, the type of things that might often be relevant include:186.5.1 the number in the group affected by the wrongdoing;

186.5.2 how the wrongdoing affected people and the extent to which they are affected;

186.5.3 the nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;

186.5.4 the identity of the alleged wrongdoer.

[187]Where a qualifying disclosure is made to an employer, it is a protected disclosure. (Section 43C).

[188]Where the disclosure is not in the circumstances, set out in any of Sections 43C to 43F, the Tribunal has to either be satisfied that sections 43G or 43H applied or else the disclosure (even if it is qualifying) is not a protected disclosure. Unfair Dismissal: dismissal because of protected disclosure

[189]Within Part X of the Employment Rights Act, s.103A specifically deals with dismissal where the principal reason is that the employee has made a protected disclosure. 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.

[190]The dismissal reason in this sense is the set of facts known to the person taking the decision on behalf of the employer (or the set of beliefs held by that person) which cause the employer to dismiss the employee. See the court of appeal decision in Abernethy v Mott [1974] I.C.R. 323.

[191]When an employee has less than two years’ service, and presents a claim of unfair dismissal, the onus is on them to persuade the tribunal that the dismissal reason was one of the reasons for which two year’s continuous employment is not required. That is the general rule, and, in Ross v Eddie Stobart Ltd

UKEAT/0068/13/RN

, the EAT specifically confirmed that it applied when the reason relied upon is that described in section 103A of the Employment Rights Act 1996.

[192]We might make a decision, on the balance of probabilities, that the Claimant was dismissed for the reason which the Respondent is relying on, or for the reason Page 44 of 69 that the Claimant is relying on. We are not obliged to choose just between those two options only, and to decide which of those is more likely than the other. It is open to us to reject both proposed reasons, and to decide that neither side has proven, on the balance of probabilities, that the reason was the one that they argued for.

[193]In other words, it is open to the Tribunal to decide that the dismissal was not for the reason asserted by the employer but also that it was not because of the protected disclosure either (see Kuzel v Roche Products Ltd

[2008] ICR 799

[194]A crucial part of deciding on the reason for dismissal is to decide which person or persons took the decision to dismiss.

[195]If the Tribunal accepts the Respondent’s case about the identity of the decision maker, and where that person attends the hearing and gives evidence, then the decision about the dismissal reason will be largely about whether that person’s evidence on oath is believed, including an analysis of whether that evidence is consistent with the contemporaneous documents, and whether there was any unconscious motivation.

[196]Evidence about whether that person knew about the disclosure, and/or evidence about whether anyone else sought to encourage them to dismiss the Claimant is likely to be relevant and important.

[197]If the employer is found to have lied about the identity of the decision-maker, or claims not to know the identify the decision-maker, and/or if the decision-maker does not give evidence, then the Tribunal will have to decide whether or not to draw adverse inferences. It does not follow that the Claimant succeeds by default in these circumstances; however, nor does it follow that we are unable to make decisions about the reason why the employee was dismissed if we are unable to hear first hand evidence from the person who made the decision.

[198]Where the decision-maker has been identified, and their subjective reason for deciding to terminate employment has been identified, the Supreme Court decision in Royal Mail Group Ltd v Jhuti

[2019] UKSC 55

might be relevant in some cases. If an investigator or senior manager deceived the decision-maker about the true facts, and the dismissal decision was taken because the decisionmaker believed that false version of the facts, then the motivation for the deception can be attributed to the employer as the dismissal reason. In other words, a potential route for a Claimant to succeed under s.103A is to show that someone else, other than the decision-maker, was motivated by the protected disclosures and successfully tricked the decision-maker. The deception could consist of positively making up false facts, or of concealing some relevant true facts. Page 45 of 69

[199]However, the mere fact alone that a Claimant has made a protected disclosure and that one or more colleagues has been aggrieved by it and/or complained about it, is not necessarily enough for the Claimant to succeed in showing that their later dismissal fell within section 103A. In the absence of the Jhuti type scenario, the opinions or beliefs of people other than the dismissing officer are not necessarily relevant to the Tribunal’s decision about what was the “real reason” for the dismissal. It will be up to the Tribunal to analyse the actual decision maker’s reasoning and to decide whether that decision maker made the decision to dismiss (for the reasons which they have claimed or for some other reason or) because of the protected disclosure. Deductions from Wages

[200]Part II of the Employment Rights Act 1996 deals with Protection of Wages. The right not to suffer unauthorised deductions is described in section 13. Wages are defined by section 27. Employees (and other workers) have the right to receive the wages properly payable on each pay date. Deciding what wages are actually properly payable may require the Tribunal to analyse the meaning of the contract, and to find facts.

[201]The Employment Rights Act 1996 provides a right against unauthorised deductions, and exceptions: 13. Right not to suffer unauthorised deductions:(1) An employer shall not make a deduction from wages of a worker employed by him unless - (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

[202]Section 14 contains some exceptions to section 13, but none are relevant in this case. In particular, a loan is not an “overpayment of wages”. Page 46 of 69

[203]The meaning of “wages” is set out in section 27 ERA. There is no dispute in this case that there was a deduction from wages. The dispute is about whether it was authorised or not.

[204]Sub-paragraphs (a) and (b) of section 13(1) are alternatives. That is, the Respondent only needs to show that one of them applies to the deduction in question, rather than both.

[205](Ignoring “statutory provision”, which is not relevant in this case), an employer has three methods of showing that the deduction is lawful because of subparagraphs (a) and (b) of section 13(1). They are not mutually exclusive, so more than one might apply, and the employer can argue in the alternative.205.1 That there was a written term of the worker’s contract (which permitted the deduction).

205.2 That there was some other term of the worker's contract which the worker had been notified of (which permitted the deduction).

205.3 The worker had previously given written consent to the deduction.

[206]The third requirement was discussed in Potter v Hunt Contracts Ltd

[1992] IRLR 108

[1992] ICR 337

, EAT:206.1 The employer paid £545 to a third party when the employee joined.

206.2 A loan contract was drawn up between the Respondent and Mr Potter to the effect that the loan would diminish at the rate of £22 per month but that if Mr Potter left the company within 24 months, he would be required to return the outstanding balance. Mr Potter's employment terminated after only five weeks at which time the amount outstanding under the loan agreement was £523. This exceeded the wages due to him (£278.50) with the consequence that he was paid nothing at all on the termination of his employment.

206.3 The central part of the loan agreement read “should you leave the company within 24 months from the date of your joining, you shall be required to return the fee on a diminishing basis based on £22 per month”.

206.4 The EAT decided that this did not satisfy the requirements of what is now s13(1)(b). To fulfil the condition that the employee should have previously signified in writing his agreement or consent to the making of a deduction. The EAT rules that there must be a document which states that the deduction is to be made from the employee's wages. The document must also make clear that the employee agrees to the deduction being made from that source. Page 47 of 69

[207]In order to succeed on the argument that it had written authorisation within the scope of s13(1)(b) ERA the employer does not need to go as far as showing that the precise amounts that it did in fact deduct on each occasion had been precisely authorised by the written authorisation. It would, however, have to show that whatever amount it did deduct had been properly authorised once the written document was correctly interpreted Employee’s Contractual Obligations

[208]The common law implies a duty of good faith and fidelity on the part of the employee into every contract of employment. This duty imposes an obligation on the employee to provide honest, loyal and faithful service during employment.

[209]This means, among other things, that an employee must not compete with his or her employer, must not make secret profits from his or her employment, must not make preparations to compete with the employer during working hours, and must not disclose the employer’s confidential information.

[210]Breach of the implied duty of fidelity and good faith will normally entitle the employer to dismiss the employee summarily for gross misconduct at common law: Boston Deep Sea Fishing and Ice Co v Ansell 1888 39 ChD 339, CA.

[211]The same case is often cited as authority for the propositions that a defendant to a claim for notice pay is entitled to argue that the Claimant had repudiated the contract by actions that have been discovered by the time of the court or tribunal hearing even though they were not discovered until after the dismissal had taken place; and/or several months prior to the dismissal.

[212]As the Court of Appeal pointed out in Wessex Dairies Ltd v Smith 1935 2 KB 80, an employee is employed to look after the interests of the employer, not his or her own individual interests. The implied contractual duty of fidelity requires employees, during working hours, to devote the whole of their time and attention to the job they are employed to do. Thus, an employee who works either for him or herself or for another during those hours, without the consent of the employer, will almost certainly be acting in breach of the duty of fidelity whatever the type of work involved.

[213]The implied duty of fidelity will prevent employees who wish to compete with their employer once their employment has ended from taking preparatory steps towards that end during working hours.

[214]Provided done outside working hours, there are certain preparatory steps that an employee may be permitted to take without breaching the implied duty of fidelity. The case law gives examples where setting up of an off-the-shelf company for competition purposes, arranging finance and premises, and ordering necessary Page 48 of 69 equipment and materials (while done on employee’s own time) do not breach the duty of fidelity: Balston Ltd v Headline Filters Ltd 1990 FSR 385, ChD.

[215]Each case turns on its own specific facts, including consideration of whether a single employee is acting alone, or with other employees, and the seniority/roles of the employees involved. See, for example: Shepherds Investments Ltd v Walters

2007 IRLR 110

, ChD. Breach of contract

[216]The Tribunal has jurisdiction to consider complaints of breach of contract, subject to the conditions, requirements and limitations set out in the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.

[217]The Tribunal will take a similar approach to other courts, including interpreting the contract to decide what obligations existed, and whether they have been breached.

[218]Where the employer terminates the contract without good cause, or without providing the employee with sufficient notice, the Claimant may have grounds to succeed in a claim for wrongful dismissal.

[219]The amount of notice to which an employee is entitled is determined by the contract, subject to the statutory minimum. It is an objective question for the Tribunal to consider whether the Respondent did, in fact, have good cause to dismiss the Claimant for committing a repudiatory breach of contract. Where there is a dispute about whether the Claimant did, in fact, commit certain acts (or make certain omissions) then the tribunal is required to make findings of fact about the Claimant’s relevant conduct. In so doing, the tribunal is not limited to considering only the evidence which had been available to the Respondent when it made its decision to terminate. Any relevant evidence presented at the hearing can be taken into account.

[220]To assess the seriousness of any breach which is found to have occurred, it is necessary for the Tribunal to consider all of the relevant circumstances including the nature of the employment contract, the nature of the term which was breached, the nature and degree of the breach, and also the nature of the Respondent’s business and of the Claimant’s position within that business. Having assessed the seriousness, the tribunal will decide if the breach was such that the Claimant had no entitlement to be given notice of dismissal (and no entitlement to a payment in lieu of notice).

[221]To amount to conduct which entitles the employer to dismiss without notice, the conduct must be such that it “must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment” Neary v Dean of Page 49 of 69 Westminster

[1999] IRLR 288

. So called “gross misconduct” may be established without proving dishonesty or wilful conduct and so called “gross negligence” that undermines trust and confidence may also suffice to justify summary dismissal. Whether it does so is a question of fact and judgment for the Tribunal, taking into account the damage that the acts/omissions caused to the employment relationship. Adesokan v Sainsbury's Supermarkets Ltd

[2017] EWCA Civ 22

[222]In Hovis Ltd v Lowton, Case No: EA-2020-000973-LA, the EAT considered what type of evidence an employer might need to present at a Tribunal hearing, if seeking to persuade the Tribunal that the employee had, in fact, acted in the manner alleged (and thereby lost the entitlement to notice of dismissal). On the facts of that case, the Tribunal had not been obliged to accept the employee’s denials (or decide that the employer had failed to prove that the misconduct had been committed) merely because the Respondent did not call a live witness to the (alleged) event who disputed the Claimant’s version. The Tribunal can, and must, take account of all the evidence presented to it, including contemporaneous documents and/or hearsay accounts. It was noted that: The fact that a hearsay statement has not been given under oath, or tested … at trial, are considerations that may of course inform the judge’s assessment of its reliability or credibility, or otherwise of what weight to attach to it, …. They are also not necessarily the only considerations that may affect the evaluation of hearsay evidence. The tribunal needs to consider all the relevant circumstances in the given case, such as the particular circumstances in which the statement was made, the nature of the record of that statement, and so forth. Analysis and conclusions

[223]We now answer the questions in the list of issues (“LOI”)

[224]We will deal with the protected disclosure allegations first, items 1.6 and 1.7 of list of issues.

[225]Our overall conclusion on those matters is that the Claimant has not persuaded us that anything he communicated to Moses in autumn 2021 tended to show that there was a breach of a legal obligation, or that he - the Claimant - thought at the time there was a breach of a legal obligation.225.1 Rather the Claimant is referring back to normal day to day discussions between him and the Chair about having received invoices and/or the amounts, etc, in which there was no communication from the Claimant, to Moses, that the Claimant believed that there was any wrongdoing (by the HR consultant, or anyone else).

225.2 At most, he may have discussed with Moses about whether the HR consultant was taking too long to complete the policy work and/or whether Page 50 of 69 all she needed to do was simply change some organisation names on existing templates. However, we are satisfied that he did not suggest to Moses (or to anyone else within the Respondent’s organisation, or to any relevant regulator) that the HR consultant was doing anything dishonest or illegal in terms of the amounts stated in the invoices, and he did not state or imply that the respondent would be breaching its own obligations as a charity if it paid the invoices.

225.3 The conflict of interest point has never been nailed down clearly. The Claimant has sought to allege a friendship between June Crowther and (at least) one of the trustees. Ms Crowther’s company had been performing work for the Respondent for several years and we are entirely satisfied that – in autumn 2021 – the Claimant did not suggest to the Respondent that it had somehow been improper to start using that service 7 or so years earlier, or that any matters connected to any alleged friendships made it improper for the Respondent to continue to use JPCHR. Rather the sequence of events is that it was after the Claimant had first written to JPCHR (in January 2022) about ending the contract that the Claimant became dissatisfied with Moses reaction to that and it was only after that that he, the Claimant, first alleged that there was a “conflict of interest”.

[226]It is our assessment that, in autumn 2021, the Claimant did not believe that he was communicating information that tended to show a breach of a legal obligation. However, and in any event, even if the Claimant did believe that he was communicating information that tended to show a breach of a legal obligation, that was not a reasonable belief.

[227]In terms of public interest, in very general terms, it is in the public interest that charities have good governance arrangements, and only pay for work that has actually been done, and do not pay too much for work that has been done. Furthermore, in terms of use of charitable funds, it is in public interest that charities obtain services from providers that offer the best service and/or best value for money, and do not appoint providers on the basis of friendships with trustees. However, in terms of the actual discussions between the Claimant and Moses in 2021, the general principles set out earlier in this paragraph were not engaged. The Claimant did not communicate anything to Moses that engaged wider public interest matters. He simply had routine discussions. Even if - contrary to our finding – the Claimant believed that anything he said to Moses (or to JPCHR or anyone else) about the work being done on policies was a disclosure that was in the public interest, that would not have been a reasonable belief. Opinions might legitimately differ as to how complicated a task is (in this case to produce new versions of policy documents), but, as stated already, it was not the Claimant’s view at the time – and certainly not a view he stated expressly or by implication – that the Respondent was being dishonestly overcharged. Page 51 of 69

[228]Thus there were no protected disclosures as alleged in section 1.7 of list of issues.

[229]The Claimant’s actual contact with the Charity commission and is not something in the claim form or the list of issues as an alleged protected disclosure. Furthermore, we have not been supplied with a copy of it. In any event, his actual contact with Charity Commission cannot have been the reason for his suspension or anything that happened on 14 January 2022 or the commencement of the investigation. The Charity Commission wrote to the Respondent on 6 May 2022 and that was because the Claimant had contacted them after he knew that he was suspended and that a disciplinary investigation had commenced. Detriment Allegations

[230]Since the Claimant has failed to prove that he made the protected disclosures which he has alleged, then the answer to the question posed by paragraph 1.11 of list of issues is “no”, and each of the complaints of detriment on the grounds of protected disclosure fails for that reason.

[231]We now consider the race discrimination allegations. We have considered the evidence as a whole when reaching our decisions. We explain them one by one for ease of exposition, but we have taken account of the bigger picture each time. LOI 1.13.1 Suspension in January 2022

[232]We find it remarkable that the Respondent has not provided a copy of the (alleged) written complaint / grievance by Rama Budhia that was stated to be the reason for the suspension. We do accept that the document exists. We do accept that it complains about the Claimant. We do accept that Moses had received it by 23 November 2021 [Bundle 219]. However, the specific details of exactly what she said have not been made clear.

[233]It is also noteworthy that there was a 7 week gap between Ms Bhudia’s complaint about the Claimant and the suspension.

[234]We take into account that Ms Bhudia was not suspended, and the Claimant was. However, she is not an “actual” comparator. There were material differences between their cases.234.1 He was a more senior employee complaining about a more junior employee. In particular, he was Ms Bhudia’s line manager and he was objecting to the fact that she had made a “heartful, distressing untrue accusation” during a disciplinary hearing in which he was presenting a case o a panel alleging that there had been misconduct by Ms Bhudia. His complaint [Bundle 214] was that Ms Bhudia had suggested that there had been a difference between the Page 52 of 69 way that the Claimant had treated her and LC and that this might have been because of sex or race.1

234.2 She was a more junior employee alleging (apparently, though we have not seen the document) that she had been subjected to ill-treatment by her line manager.

[235]So we do take the difference in treatment (Ms Bhudia not being suspended) into account when deciding how a hypothetical comparator would have been treated.

[236]The hypothetical comparator is someone of a different race to the Claimant, but whose circumstances were otherwise the same. In fact, we have used three hypothetical comparators, taking into account paragraph 1.15 LOI. The respective hypothetical comparator would be CEO of the organisation, of longstanding, who was the subject of the same complaint letter by Ms Bhudia, but who:236.1 Was not ethnically Asian

236.2 Was not born in Iran

236.3 Who was Afro Caribbean

[237]Taking the facts as a whole, there are no facts from which we could conclude that that the Claimant’s suspension was less favourable treatment because of race, or that a hypothetical comparator (any of the 3 just mentioned) would have been treated differently.

[238]The relevant facts include that:238.1 Moses and the Claimant were well-known to each other, having worked together over many years.

238.2 The Claimant had been invited to a meeting to discuss his own grievance and there was also going to be a discussion about Ms Bhudia’s. (The parties do no agree about whether it was going to be a single meeting to discuss both, or separate back to back meetings. Our assessment is that that distinction makes no difference to the issue of whether race played a part in the decision to suspend the Claimant.) The Claimant declined to attend the meeting(s) and had instead written to the HR consultant implying that the HR consultant’s contract might be terminated.

238.3 There was a discussion between the Claimant and Moses in a nearby park / car park in the days prior to the suspension. Moses said to the Claimant that 1 The minutes only record her as asking “Is it because he is a man, and I am here because I am a woman?”, so no reference to race, though that does not matter to the point at hand. Page 53 of 69 it did not look good for the organisation that the Claimant was raising the matter of terminating the HR consultant’s contract around the same time that (amongst other things) she was corresponding with the Claimant about arrangements to discuss Ms Bhudia’s grievance.

238.4 The Claimant did not agree with Moses’ assessment that his correspondence to the HR consultant risked creating a bad impression. On the contrary, he mentioned that he might contact the Charity Commission.

[239]Our finding is that the Claimant’s cancellation of the meeting(s) scheduled for 14 January 2022 and his letter to the HR consultant about termination and the lack of willingness to take Moses’ opinion on board in relation to that matter were contributory factors to the suspension decision. We are satisfied that none of those factors have any connection to race. In particular, to the extent that the Claimant alleges that what he sees as “support” for the HR consultant was based on her race and/or that of the Trustees, there are no facts to support that assertion, and we reject it.

[240]As well as the fact of suspension, the Claimant also complains about the terms of the suspension, and about the property that he was required to hand over. There are no facts from which we could conclude that the instructions given were less favourable treatment because of race, or that a hypothetical comparator would have been treated differently.

[241]The relevant facts include that we accept that Moses gave truthful information, to the best of his ability and recollection, about what he knew about previous suspensions.241.1 One was in the 1980s and was prior to the organisation becoming so wellorganised, with identity passes, etc. There was probably no items belonging to the Charity for him to hand back, because he probably did not have any.

241.2 One (for Mr Bell) was much more recent, in around 2018. It was not performed by Moses himself. Moses cannot say what items Mr Bell had to hand back to the Respondent during the suspension.

[242]The relevant facts also include:242.1 The Claimant was the CEO.

242.2 He was being excluded from the premises.

242.3 He was not supposed to be coming onto the premises, other than by prior arrangements. He did not, therefore, need his employee pass (for such a purpose) because if he were to attend then specific arrangements would be made for his arrival. Page 54 of 69 LOI 1.13.2 Commencement of disciplinary proceedings in January 2022

[243]Although the decision to suspend the Claimant (rather than simply investigate while he worked as normal) is a separate decision to the decision to commence a disciplinary investigation, some of the comments about the commencement of the disciplinary process overlap with those we have made in relation to the suspension.

[244]The hypothetical comparator is someone of a different race to the Claimant, but whose circumstances were otherwise the same. The three respective hypothetical comparators would be a CEO of the organisation, of longstanding, who was the subject of the same complaint letter by Ms Bhudia, but who:244.1 Was not ethnically Asian

244.2 Was not born in Iran

244.3 Who was Afro Caribbean

[245]Taking the facts as a whole, there are no facts from which we could conclude that that the decision to commence a disciplinary investigation was because of race, or that a hypothetical comparator (any of the 3 just mentioned) would have been treated differently.

[246]The relevant facts include that:246.1 Moses and the Claimant were well-known to each other, having worked together over many years.

246.2 The Claimant had been invited to a meeting to discuss his own grievance and there was also going to be a discussion about Ms Bhudia’s. (The parties do no agree about whether it was going to be a single meeting to discuss both, or separate back to back meetings. Our assessment is that that distinction makes no difference to the issue of whether race played a part in the decision to suspend the Claimant.) The Claimant declined to attend the meeting(s) and had instead written to the HR consultant implying that the HR consultant’s contract might be terminated.

246.3 There was a discussion between the Claimant and Moses in a nearby park / car park in the days prior to the suspension. Moses said to the Claimant that it did not look good for the organisation that the Claimant was raising the matter of terminating the HR consultant’s contract around the same time that (amongst other things) she was corresponding with the Claimant about arrangements to discuss Ms Bhudia’s grievance. Page 55 of 69

246.4 The Claimant did not agree with Moses’ assessment that his correspondence to the HR consultant risked creating a bad impression. On the contrary, he mentioned that he might contact the Charity Commission.

[247]The Claimant’s cancellation of the meeting(s) scheduled for 14 January 2022 and his letter to the HR consultant about termination and the lack of willingness to take Moses’ opinion on board in relation to that matter were contributory factors to the decision to appoint an external investigator. We are satisfied that none of those factors have any connection to race. In particular, to the extent that the Claimant alleges that what he sees as “support” for the HR consultant was based on her race and/or that of the Trustees, there are no facts to support that assertion, and we reject it.

[248]We do not consider either Ms Bhudia or LC to be actual comparators because their circumstances are materially different.248.1 The potential allegations against the driver might have been that he had not been properly licensed to drive the vehicles and that he had driven while knowing that. The Respondent did not discipline him (and, for that matter, the Claimant, who was the CEO, did not discipline him – which was something Ms Bhudia raised, as mentioned above). However, they were very different allegations to those that the Respondent decided would investigated in relation to the Claimant.

248.2 The potential allegations against Ms Bhudia are discussed above and are also different to those which the Claimant faced. However, and in any event, the Respondent (by the actions of the Claimant) did inform her that she was facing the prospect of formal disciplinary sanction. 1.13.3. Decision to dismiss him on or around 15 August 2022.

[249]We have noted the full contents of the report prepared by Clementine Femiola [Bundle 317-327].249.1 Section 4 is “summary of key issues”

249.2 We note, amongst other things, the comment (in which Ms Bhudia is “the O&B Assistant”):: The O&B Assistant felt that the CEO had treated her differently as a woman, particularly, since he had not taken any action with the male driver in question which meant that the CEO’s approach had been very one sided. More generally, the O&B Assistant felt she was not valued and frequently undermined.

249.3 We also note: Page 56 of 69 The O&B Assistant described how following this disciplinary hearing, the CEO behaved unprofessionally, avoiding verbal communication in his capacity as her line manager and as CEO. He would talk to colleagues sitting in the vicinity and ignore her despite the relevance of the subject matter to her work. In addition, he would be very quick publically to “pull (her) up” for the smallest error in her work.

249.4 And: At the Disciplinary Panel attended by the Chair, the CEO, the O&B Assistant and a note taker, the disputing parties clashed over a series of issues. This resulted in the O&B Assistant stating that she would be taking out a grievance against the CEO in relation to his inaccurate statements, intimidating behaviour, being unfairly targeted and unsupported by the CEO. The following morning the CEO had taken out a counter grievance against the O&B Assistant. A grievance panel was subsequently scheduled and room bookings paid for at an external venue. However, on the evening before the panel was due to take place, the CEO informed the Chair that he would not be attending the grievance panel. This had a devastating effect on the O&B Assistant who felt deprived of the opportunity to elaborate on her grievances. …

249.5 We note the whole report, including everything said under “Themes and Findings”.

249.6 We quoted the conclusions section in full in findings of fact.

249.7 The first sentence of the final paragraph of the conclusions is a reference (at least in part) to the Claimant’s contact with the Charity Commission (which is discussed in section 5.2 of the report).

[250]The letter inviting the Claimant to the hearing [Bundle 328] included 4 bullet points for the allegations, and one of which was “Bringing BCT into disrepute”. That was a reference to the first sentence of the final paragraph of the report (which, as we have said, included the comments in the report about the Claimant’s contact with the Charity Commission).

[251]We have commented on the dismissal letter and findings above as well as the appeal. The appeal committee decided that Allegation 4 (which had been upheld by the Respondent) amounted to an unlawful dismissal because of whistleblowing and overturned that for that reason. They also gave their reasons that none of the other 3 allegations (each of which had been upheld by the Respondent) were reasons to dismiss him.

[252]We have taken the evidence as a whole into account and given it careful consideration. There are no facts from which we could conclude that the dismissal decision of 12 August 2022 (which was later overturned on appeal) was less favourable treatment because of race, or that a hypothetical comparator would have been treated differently. The relevant factors include: Page 57 of 69252.1 We are satisfied that the Respondent (and no individual member(s) of the management committee) told Clementine Femiola what she should write in the report.

252.2 We are satisfied that the Respondent relied on the contents of Ms Femiola’s report when making the decision to dismiss.

252.3 We accept that the decision was arrived at following a hearing before a which consisted of Joyce Inoniyegha, Chair of the panel, Lucjana Dedaj and Dwayne Phillips. There are no facts which show that any of those individuals were motivated – whether consciously or unconsciously – by the Claimant’s race, or that of any other person.

252.4 Similarly, even to the extent that Moses or any committee member had any part to play in ratifying the decision (and, in Moses’ case, communicating it to the Claimant via the 12 August 2022 letter), there are no facts which show that any of those individuals were motivated – whether consciously or unconsciously – by the Claimant’s race, or that of any other person.

[253]We have taken into account that the appeal panel decided that there was – in effect – no proper basis for the decision to dismiss. Based on the contents of the documents available to us, we are not in the least bit surprised that the appeal panel reached that conclusion. However, there are no facts that could lead us to conclude that, had the Claimant’s race been different, then the 12 August outcome would have been different. We are satisfied that the decision makers genuinely did believe that the evidence was sufficient to dismiss, and that dismissal was the appropriate outcome.

[254]The appeal panel did not decide that the decisions had been motivated by race. It was not an argument presented to them by the Claimant at the time. Of course, that does not prevent the Claimant raising the argument now, in these Employment Tribunal proceedings; however, it is worth pointing out that our decision that the burden of proof does not shift does not mean that we are disagreeing with the appeal panel’s decisions.

[255]This allegation fails. 1.13.4. Following reinstatement after that dismissal, refusal to allow the Claimant to resume work

[256]As mentioned in findings of fact, although the Claimant was notified of the appeal panel’s decision (that his appeal was successful, meaning that he was reinstated, and the dismissal “disappeared), he was not contacted by the Respondent to make arrangements for his return to work. Page 58 of 69

[257]From the point of view of the employment contract, our assessment is that there was no proper basis for this. The period of suspension that had commenced in January 2022 could not be relied upon, contractually, as a reason for not providing the Claimant with work and/or for denying him access to the place of work. At least part of the explanation for the Claimant’s non-attendance at work in this period (which was the Respondent’s choice, not the Claimant’s choice) was the existence of the without prejudice discussions. Although we do not have (and do not need) the precise details, the parties agree that they were discussing the possibility of reaching an agreement by which the Claimant would have left the Respondent’s employment without ever resuming his duties.

[258]It was in early November that was the Claimant was informed that there was a new suspension, and we will deal with that in more detail when commenting on the next item in list of issues. For now it suffices to say that LOI 1.13.4 requires separate analysis for 2 different periods:258.1 From 8 September 2022 (informed of successful appeal outcome) and 11 November 2022 (informed of new suspension reason)

258.2 From 11 November 2022 onwards (the period which the Respondent says is explained by the suspension decision).

[259]For the first of these periods, we note that the 11 November letter from Moses [Bundle 401] asserted that there had been a “continued suspension”. Our assessment is that the Respondent had proper foundation for treating the period 8 September 2022 to 11 November as a continuation of a suspension. The reason that the Respondent sought to agree a severance arrangement, instead of making arrangements for the Claimant to resume his duties as CEO, is that the Respondent had decided that it no longer wished to employ the Claimant.

[260]There are no facts from which we could conclude that Moses or any of the other committee members were influenced – either consciously or unconsciously – by the Claimant’s race, or the race of anyone else, in keeping the Claimant away from work for the period 8 September to 11 November 2022.

[261]There are no actual comparators. There is a material difference between the Claimant and anyone who was not CEO. The Respondent had decided – whether reasonably or unreasonably – that it did not trust the Claimant and that his return would be disruptive. They did not make that decision for any reason connected with anyone’s race. Our assessment is that the real reason they formed that opinion is that they did not think that either they, or the Claimant, would be able to put the other matters (the events that led to the dismissal decision, and the fact that they had made the 12 August decision) behind them so that they could work harmoniously together. They hoped that an agreement Page 59 of 69 would be reached; when that did not prove possible, they still did not want to have him back.

[262]For the second period, we will discuss the second investigation, and the purported reasons for it, in more detail below. However, it remained the case, from 11 November onwards, just as in the period from 8 September to 11 November, that the Respondent did not want the Claimant to come back to work. The earlier motivation for keeping him away from work did not cease just because – from the Respondent’s point of view – there was now an additional reason for him to be absent, namely disciplinary suspension.

[263]As we are about to address, our decision is that the second investigation was not commenced for any reason connected with the Claimant’s race.

[264]For the period from 11 November 2022 onwards, there were two reasons that the Respondent did not allow the Claimant to resume his duties:264.1 Firstly, they did not want him back (as had been the case from 8 September onwards)

264.2 Secondly, there was an investigation into alleged financial irregularities.

[265]Our decision is that there are no facts from which we could conclude that the Respondent was motivated by the Claimant’s race (or anyone else’s race) when keeping him away from work from 11 November to the end of employment. 1.13.5. Commencement of new disciplinary proceedings (on a date to be established) which was notified to the Claimant in November 2022 1.13.6. Delay progression of the new disciplinary proceedings

[266]It is more convenient to deal with both of these together.

[267]The decision to launch an investigation into the following matters i) … unaccounted for payments made to [the Claimant] going back over a number of years and financial irregularities around [the Claimant’] salary; and ii) The disappearance of [the Claimant’s] HR personnel file. was made by no later than 11 November 2022 because that is when it was communicated to the Claimant [Bundle 401].

[268]What preceded the decision was Moses asking the finance assistant to provide details of the Claimant’s pay arrangements, so that they could be used to help in the severance negotiations, and the finance assistant expressing the opinion that he could not find the authority that explained all of the payments that had been made to the Claimant. Page 60 of 69

[269]The relevant facts that we need to take into account when determining whether the burden of proof should shift include that the Claimant had access to payroll systems and that it was the Claimant who – in the first instance – generated the reports which would include details of the payments that were going to be made. However, the relevant facts also include that, each month, it was Moses who signed off on those reports and authorised the payments.

[270]The relevant facts include that the finance assistant created the document at [Bundle 757], and we infer it was done in October 2022 (since it included payments up to September, but not October).

[271]The relevant facts include that Moses is not, and does not claim to be, a finance expert, and that he took his duties as a trustee of the charity very seriously. He regarded it as important that, if – as the finance assistant was suggesting – there was evidence of unexplained payments, then that should be properly investigated. We accept that he personally did not attempt to do a rigorous check of the figures which the finance assistant put forward, and did not try to trace back, through previous meeting minutes (or audio recordings of meetings) or emails to try to ascertain for himself what the proper payments to the Claimant would have been.

[272]Other than the 11 November letter informing the Claimant that there would be an investigation, the earliest written record of the Respondent seeking to have the matters investigated is Ms Banton’s email to Voluntary Action Harrow Cooperative on 22 November 2022. The content of that email, as well as the fact that it is a response to an earlier email dated 19 November (which has not been disclosed) shows that discussions/correspondence had commenced prior to then.

[273]The Respondent struggled to find someone, within their budget, who could offer a second opinion on the finance assistant’s comments and/or perform an expert investigation.

[274]Having continued their attempts, Ms Banton wrote to Experia Solutions Ltd at 4.45pm on 11 January 2023. The reply (from Mary Golden) was the following day and stated: Thank you for your email. However, much as we would like to help our area of expertise is around HR matters and not financial ones. However, if we can help in any other way please do let me know .

[275]As Ms Banton’s email made clear, she was already aware that “Stuart Golden” (as she named him in the letter) was Mary Golden’s husband. Page 61 of 69

[276]There was then a 15 day delay and we accept that this was because the Respondent was still considering other options and hoping to find someone who might specialise in both financial issues and HR issues.

[277]Dr Golden supplied an engagement letter on 27 January, which the Respondent signed quickly and gave her instructions around 31 January.

[278]We are satisfied on the evidence that the Respondent was not seeking to go slowly. We are satisfied that certainly from 11 November 2022 onwards the Respondent was doing its best to find an appropriate external consultant / organisation to carry out an investigation and/or a disciplinary hearing as quickly as possible.

[279]There are no facts from which we could conclude that an external consultant would have been instructed prior to 31 January 2023 for a hypothetical comparator of a different race.

[280]There are also no facts from which we could conclude that there would have been no appointment of an external consultant to carry out an investigation if the chief executive had been a hypothetical comparator of a different race.

[281]In reaching, each of these conclusions we have taken account - as we have for all our conclusions - of the lateness of the disclosure of certain relevant documents. Our finding is that there is nothing suspicious about the fact that the Respondent first contacted other organisations before formally appointing Experia. We are satisfied that the failure to disclose the documents demonstrating the sequence of events which led to the appointment of Experia Solutions Limited was not due to an attempt to conceal something that was harmful to the Respondent but was a genuine mistake on the part of the Respondent and/or its representatives.

[282]These allegations fail. 1.13.7. Dismissal in February 2023 1.13.8. Non-reinstatement on appeal against that dismissal 1.3. What was the principal reason for dismissal and was it a potentially fair one … 1.4. If so, was the dismissal fair or unfair in accordance with ERA section 98(4), and, in particular, did the respondent in all respects act within the socalled ‘band of reasonable responses’? Page 62 of 69

[283]As discussed in the findings of fact, Mr Gooden produced a report which included recommendations that this should be a disciplinary hearing. Dr Mary Golden was then involved in that disciplinary hearing.

[284]We take account of the fact that the Respondent did know that Mr Gooden and Dr Golden were married and that the Respondent did not reveal that to the claimant at the time or to the employment tribunal during the hearing. There was however no attempt to conceal the fact that both those individuals worked for the same company.

[285]We will comment below on our reasons for deciding that the dismissal was unfair. We have taken account of that when reaching our decision about whether it was an act of race discrimination.

[286]We have taken into account the Respondent’s lack of clarity / precision about who actually took the decision to dismiss, and that it was only in Moses’ oral evidence that we heard about the committee taking a vote.

[287]We take into account that not all the allegations were upheld and also that Experia – as Dr Golden had told the Respondent – did not possess financial expertise.

[288]We take into account that Mr Gooden did not meet the Claimant, but that he did offer the Claimant the chance to meet. There are no meeting notes (available to us, at least) of any meetings that he did have with witnesses, including meeting the Finance Assistant and Ms Banton to go through the document which is now [Bundle 757].

[289]In relation to the allegation that the Claimant had removed his HR file (or other records) in order to impede investigations, we take into account that the report fails to address what investigations – if any – he undertook to establish the time at which such documents left the Respondent’s premises, and/or whether they had ever been on site later than January 2022, and/or what documents the Claimant had left behind / handed over on the day on which he was suspended.

[290]His report does acknowledge that the Claimant was suspended on 14 January 2022, but does not analyse the fact that, between 14 January and 12 August 2022, the investigation had nothing to do with financial irregularities, or anything that might have appeared in the Claimant’s HR file. There was a gap of around 11 months between the time that the Claimant was last in the office – and with access to any paper files on the Respondent’s site – and the announcement of an investigation into alleged financial irregularities. In those circumstances, we find that there was no explanation for the conclusion that – assuming the Claimant had removed the file – the purpose of that removal had been to thwart the investigation which commenced about a year later. Page 63 of 69

[291]In any event, there were no findings of fact to establish the basis on which it was suggested that some person had deliberately removed/hidden anything. The report did not analyse which particular documents would have been on the file if no-one had deliberately removed/hidden anything. The report did not address whether it was significant that there had been a fire, and a loss of data, in 2017,

[292]We note the full contents of the report prepared by Dr Golden as dismissal reasons, including the parts which deal with the allegations that were not upheld.

[293]One matter discussed is a matter which was also a topic of cross-examination in the Employment Tribunal hearing. That is documents which, on their face, appeared to be letters/emails from Moses authorising the Claimant to receive payment in lieu of certain holiday entitlement even during employment.293.1 At the disciplinary hearing, it was said that Moses had not actually written these, but there was no detailed explanation of how that finding had been reached.

293.2 During the Employment Tribunal hearing, Moses said that he had not actually checked his entire email account to look for copies of these after the Claimant produced them. Rather, he had earlier created a folder and had put, into that folder, everything that he thought would be relevant, and it was that location which he had checked and formed the basis for his opinion that these disputed emails were not actually written/sent by him.

293.3 He stood by his assertion that the letters were not written by him, and that they were not written in a font which he would use.

293.4 In the Respondent’s written submissions, we were invited to resolve this dispute of fact in the Respondent’s favour. However orally, and acting on express instructions from Moses, the Respondent’s counsel expressly and unequivocally withdrew the submission (paragraph 86) that we should prefer Moses’ evidence to that of the Claimant in relation to whether Moses wrote the letters apparently dated 13 March 2017 and 26 May 2020.

[294]Our finding is that Moses did actually authorise the Claimant to take payment in lieu, and that those communications are genuine. On the balance of probabilities, we accept that Moses had genuinely forgotten that he did so, and that the type of questions that were put to him during the Employment Tribunal hearing had not been expressly put to him during Mr Gooden’s investigation, or the Golden hearing, or the appeal hearing.

[295]Although it is true that Dr Golden did not know the payments in lieu were genuine, and she relied on what the Respondent told her, the actual dismissal decision - as confirmed by Moses in his oral evidence - was made by a committee vote which he participated in. Page 64 of 69

[296]There were not reasonable grounds for the employer to decide that the letters authorising the payments in lieu where anything other than genuine. We do not accept that the fact that Moses did not recall writing them provided reasonable grounds for a decision that he had not written them.

[297]Furthermore and additionally the investigation in relation to this particular issue was so unreasonable that it fell outside the band of reasonable responses. As mentioned it did not even include an adequate investigation of all the documents available to Moses to see whether these particular letters could be located. As well as demonstrating that the investigation was unreasonable in relation to this specific issue, it shows the approach that was taken more generally. There was an allegation that the claimant was responsible for the fact that - according to the Respondent – some relevant documents were missing. However, there was not a reasonable attempt to identify which documents the Respondent’s other employees actually did possess.

[298]It does seem clear, and it is our finding, that Mr Goodden did not actually ask Moses about the disputed letters. Dr Golden did not produce a documented account of what Moses told the disciplinary hearing about the disputed letters. This is an important gap in the investigation process given that the implication of the decisions made about them was that the claimant had fraudulently created documents and sought to rely on them. If that particular finding was a sound one, then it would have provided evidence of a tendency by the Claimant to act dishonestly, which in turn might have formed a reasonable basis to assist the decision makers in finding that he had acted dishonestly in relation to the other matters he was accused of. The opposite, however is also true, namely that if the Claimant was showing the panel genuine documents, and the panel decided that – contrary to the employer’s assertions – these documents actually were genuine, then that finding would have been relevant to the approach to be taken about the disputes over other payments which the Claimant said were authorised and the Respondent said were not.

[299]An employer is not required to be perfect in its investigation. However, the combined efforts of Experia did not uncover that the Claimant was telling the truth, and our assessment is that there were fairly simple steps that could and should have been taken which would have uncovered that. The failure was unreasonable.

[300]The “disciplinary report” (Supp Bundle 192) is said to contain the explanation for the findings that were upheld (and thus the dismissal reason).

[301]Allegation B is said to be upheld, though that allegation referred to what the Finance Assistant had put in a column headed “Holidays”, and a footnote said that the panel had treated the payments as a mixture of holiday and overtime. No detailed findings of what had been authorised overtime, and what was not Page 65 of 69 were made. It was accepted that Moses had authorised some overtime and noted that documents were missing. However, there was no breakdown of which of the totals were to be attributed to “holiday” and which to “overtime” or of which overtime was to be attributed to fraudulent overclaiming (for time not worked), which was for hours actually worked (but not properly authorised as overtime) and which was both actually worked and properly authorised. (We accept that it was the panel’s view that they did not have sufficient documentation available to them to be specific.)

[302]In relation to information about pay rises (Allegation D, which was upheld) we accept that Employment Tribunal has information that was not presented at the 22 February 2023 disciplinary hearing. However, it was presented at the appeal hearing, and Dr Golden commented on it then, stating that it would not have made any difference to her decision. Ms Styles agreed that the document did not provide a reason that Allegation D ought not be upheld.

[303]If the Claimant’s assertions about the document were true, the document did not merely go as far as showing that Moses regularly authorised the payroll reports which included, each month, the amount to be paid to the Claimant (as well as to others). If true, the document showed that Moses has signed off on a document which recorded his actual annual salary as £52,800 per year [Bundle 1037] as of 30 March 2021. Our decision is that there was no reasonable basis for a conclusion that this was an insignificant document.

[304]We accept that opinions might reasonably differ as to the weight which a decision maker ought to have given to the Claimant’s arguments that(i) the accounts were regularly audited and

(ii) Moses liaised with the auditors and signed the relevant declarations.

304.1 However, giving those factors zero weight would require a decision either (i) that the Claimant had somehow deceived the auditors as well as Moses and the rest of the committee or else (ii) that the Claimant was giving the auditors different financial information (in relation to payments made to him) than he was giving to Moses, and Moses had simply not noticed.

304.2 No analysis appears to have been attempted about whether, if the Claimant had actually deceived the auditors, and was making higher payments to himself than appeared in the official records, then that would have left the Respondent with less cash than ought to have been expected.

304.3 No analysis appears to have been attempted about how such a cover up could have continued while the Claimant was suspended for a year.

304.4 If the finding was that Moses had simply not noticed that the figures supplied to auditors about the Claimant’s remuneration were higher than had been Page 66 of 69 properly authorised, then no analysis of how such a finding fitted in with the fact that the Claimant’s actual annual salary (as he claimed it to be) had been contained in documents presented to the March 2021 committee. That is, no arithmetic was needed to see what the Claimant was actually being paid. It was there in black and white.

[305]There are several defects, therefore, in the process by which the Respondent arrived at the decision that the Claimant would be dismissed in February 2023.

[306]Taking the evidence as a whole, and all the facts that we have found, our decision is that there are no facts from which we could conclude that a hypothetical comparator – whose circumstances were materially the same as the Claimant’s, but who was of a different race – would have been treated differently by the Respondent, either at the stage of the dismissal itself, or the appeal stage.

[307]Although Dr Golden and Mr Goodden have not appeared as witnesses, there is no evidence that they did not genuinely believe what they wrote in their respective reports, or that they would have formed different beliefs if the Claimant’s race was different. There are no facts from which we could conclude that their respective investigations/factfinding would have been approached differently, or reached different conclusions, if the Claimant’s race had been different (or if the race of the committee members had been different). The fact that they did not tell the Claimant that they were married (and nor did the Respondent) is something that we think is not relevant to our decisions on either discrimination or unfair dismissal .

[308]The allegations that the dismissal or failure to reinstate were because of race fail.

[309]In relation to dismissal, we accept that the dismissal reason was conduct in that the employer had formed the opinion that the Claimant had acted dishonestly by making payments to himself that he was not entitled to receive (and that he knew he was not entitled to receive). We also accept that dismissing a CEO for stealing money from a charity would be within the band of reasonable responses which a reasonable employer could adopt.

[310]However, we do not accept either that the employer had reasonable grounds for the belief in his guilt or that it carried out a reasonable investigation.

[311]Amongst other things, Moses had signed off on the Claimant’s payments, month after month, year after year. There was insufficient evidence to conclude that a salary of £52,800 had not been specifically approved in those circumstances, and no evidence that the salary was anything different to that which had been notified to the auditors each year. There were no reasonable grounds to decide that the Claimant had paid himself an unauthorised pay rise, and the investigation was inadequate to reach such a serious conclusion. Page 67 of 69

[312]In terms of Allegation B, it would not be accurate to say that there were no reasonable grounds for alleging that some of the components (said to aggregate to more than £42,800) represented payments which were not properly backed up by written authorisation (eg of actual hours worked, and/or agreement for it to be treated as paid overtime). However, there were no reasonable grounds for deciding that none of them were authorised and no reasonable employer would have rejected the evidence that the Claimant provided in relation to some of them. The Respondent failed to provide a sufficient analysis of the specific findings about which were authorised and which (in its opinion) were not.

[313]It was acknowledged that Experia were not financial experts. However, there is no explanation for why additional input from appropriate experts (for example, the Respondent’s own auditors) was not sought. The Claimant’s arguments that the fact that the accounts had been repeatedly audited (and that Moses as well as the auditor had signed off on them) were waved away, but with no clear analysis of why that did not matter.

[314]Our decision therefore is that the dismissal as a whole was unfair. Unfairness at the dismissal stage was not cured at the appeal stage. For example, the employer was not challenged by the appeal panel on its refusal to allow the Claimant to show the panel the exact location where he alleged the actual records that he relied on were held.

[315]It was a so-called “ordinary” unfair dismissal. The Claimant did not make the protected disclosures that he alleged he made, and the dismissal was not caught by section 103A. 1.18. Did the claimant fundamentally breach the contract of employment such that the Claimant lost an entitlement to receive notice (or payment in lieu of notice).

[316]The Respondent has not proven that the Claimant acted dishonestly. The Respondent has not proven that the Claimant’s actions were so negligent – if they were negligent at all – that he had fundamentally breached the contract to the extent that that he had no entitlement to notice.

[317]The breach of contract claim succeeds. Unpaid annual leave – Working Time Regulations318. [Bundle 575] shows the holiday year is 1 April to 31 March and that only five days can be carried over.

319. [Bundle 388] shows the Respondent’s calculations for holiday pay in August 2022. It was 8 days (£1624) for 21/22 and 13 days (£2629) for 22/23. In other words, the Respondent did not insist on limiting the 21/22 carry over to five days. Page 68 of 69

[320]Although the Claimant’s reply did raise an issue about allegedly unpaid overtime, the only dispute he raised in relation to holiday was that he ought to have been entitled to 14 days (rather than 8) for 21/22.320.1 In part, that was because he asserted that he should not have to count 4 days because he was suspended at the time. We do not accept that. The act of suspending the Claimant did not amount to a cancellation, by the Respondent, of that holiday, and the Claimant did not cancel it (or request to cancel it) before the dates in question.

320.2 So, apart from those 4 days, we do accept that the Claimant’s leave card was accurate and, for the full year 21/22, there were 10 unused days. However, the contract only permitted him to carry over 5. He did not have agreement to carry over 10. The Respondent, in August 2022, did allow him to carry over 8, but they are not obliged, by either the Claimant’s contract or the Working Time Regulations 1998 to allow him to carry over the full 10.

[321]We agree with the calculation in the Respondent’s submissions (paragraphs 92 to 107). When giving credit for the sums paid in connection with the August 2022 dismissal and for the 2023 dismissal, there has been a shortfall of £58.02. The Respondent admits that, and our decision is that the shortfall is not larger than that. Outcome and next steps

[322]If the parties fail to agree remedy, there will be a remedy hearing on the dates that were fixed at the liability hearing (27 October 2025). The parties must be ready to address us on any relevant remedy issues. This will include in relation to any alleged contributory fault and/or the chances that the Claimant might have been dismissed fairly if he had not been dismissed unfairly. Approved by: REMEDY JUDGMENT

The Law

[1]There is no ACAS adjustment, and no adjustment for alleged contributory negligence or contributory fault. There is a “Polkey” deduction of 20%.

[3]The Respondent is ordered to pay the Claimant the sum of £76,204.55. The breakdown of that sum is as follows. 3.1. Basic Award for unfair dismissal: £13,704.00 3.2. Damages for breach of contract: £7,061.27 3.3. Compensatory Award for unfair dismissal (capped): £55,439.28

[4]The Recoupment Regulations apply. The information given in writing below about the prescribed is correct. The figures differ from those announced orally because these written figures take into account “grossing up”. The figures below have therefore been corrected in accordance with Rule 67. 4.1. Prior to cap or grossing up, the losses to date of hearing were £55,178.90, reduced by 20% for Polkey to: £44,143.12 4.2. Prior to cap or grossing up, losses after date of hearing were: £20,102.16 reduced by 20% for Polkey to: £16,081.73 4.3. Prior to cap or grossing up, total losses were £75,281.06 reduced by 20% for Polkey £60,224.85. 4.4. Of the £30,000 exemption, £20,765 is used up by basic award and breach of contract damages, leaving £9,235. We proceed on basis that all of the Claimant’s personal allowance is available, which is £12,570. 4.5. Thus the balance subject to tax is: £60,225 - £9,235 - £12,570, which is £38,420. 4.6. The Claimant will pay tax of 20% x £37,700 (£7,540) plus 40% of £720 (£288) so total tax of £7,828. 4.7. So allowing for grossing up, and prior to cap, the compensatory award would be £60,224.85 plus £7,828 which is £68,052.85. 4.8. By applying the statutory cap (of £55,439.28), the reduction is therefore £68,052.85 minus £55,439.28 which is £12,613.57. This means that the compensatory award was reduced by 18.5%.

[5]So the prescribed element would have been £44,143.12, but, because of grossing up, and application of the cap, the prescribed element is reduced by 18.5% to £35,976.64

[6]The Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations 1996 (as amended) apply to this award. For that reason, the panel is required to supply the following information in relation to the remedy award described in the preceding paragraphs. 6.1. The Monetary Award is: £76,204.55 6.2. The Amount of the Prescribed Element is: £35,976.64 6.3. The dates of the period to which the prescribed element is attributable are 23 May 2023 to 27 October 2025. 6.4. The monetary award exceeds the prescribed element by £40,227.91. Approved by: