Mr R Mapembe v Slough Borough Council: 3309972/2021

EMPLOYMENT TRIBUNALS

Case No 3309972/2021

Between

Mr R MapembeClaimant

Slough Borough CouncilRespondent

Before

Employment Judge Gumbiti-Zimuto

In person for claimant

Not attending for respondent

Date 28 March 2024

JUDGMENT

[1]The Tribunal granted the claimant’s application for interim relief.

[2]The Tribunal ordered the continuation of the claimant’s contract of employment from the date of termination of employment (26 May 2021) until the determination or settlement of the complaint.

[3]The respondent is ordered to pay the claimant the sum of £2320.25 per month, this is a net sum (being the normal pay due to the claimant) and make pension contributions of £219.72 from the 27 May 2021 until the final determination or settlement of the claim.

REASONS

[1]The claimant’s application for interim relief is made pursuant to section 128(1)(a)(i) Employment Rights Act 1996 (‘ERA') in alleging his dismissal was automatically unfair pursuant to section 103A ERA. The claimant must satisfy me that it is likely that on determining the complaint the employment tribunal will find that the reason or principle reason for the claimant’s dismissal was his protected qualifying disclosures. I remind myself that the word “likely” in this context does not mean simply ‘more likely than not’ -that is at least 51%- but connotes a significantly higher degree of likelihood (Ministry of Justice v Sarfraz

[2011] IRLR 562

). I must ask myself, whether the applicant has established that he has a “pretty good” chance of succeeding in the final application to the tribunal (Taplin v. CC Shippam Ltd (J) Page 1 of 4

[1978] ICR 1068

). I recognise that interim relief is a draconian measure, causing irretrievable prejudice to a respondent and thus not one that should be “imposed lightly” (Dandpat v The University of Bath

UKEAT/0408/09/LA

). The test is to be applied to all issues before the employment tribunal, not just the assessment of the section 103A claim (Hancock v Ter-Berg and another

UKEAT/0138/19

[2]The claimant must have ‘disclosed’ ‘information’. I am satisfied that the claimant disclosed information to the respondent’s chief executive in a meeting held in July 2019 and in his grievance raised on 20 April 2020.

[3]The claimant’s disclosure of information concerned a breach of legal obligation. The claimant told the respondent’s CEO that short cuts were being used in the department in which he worked, Highways, the claimant explained that the respondent’s rules and procedures for work were not being followed and gave examples including, an example about a scheme Northam Road where the inspectors were not going on site to carry out the necessary checks in breach if the Construction Development Management Regulations 2015. The claimant also told the CEO that he believed that there were breaches of the Data Protection Regulations and breach of the respondent’s IT policy in respect of the disclosure of passwords.

[4]The claimant raised a grievance on 20 April 2020 about the bullying and harassment perpetrated against him by his line manager, Kam Hothi (Team Leader). The grievance included allegations linked to the claimant’s disclosures to the CEO in July 2020 and also included further allegations that outside contractors were being paid for work that had not been completed.

[5]The claimant states that these were protected disclosures for the purposes of section 43A (1). The qualifying disclosure, for the purposes of section 43A (1) ERA can be made orally or in writing.

[6]I am satisfied that it amounts to information and was not merely a series of allegations, complaints or comments. The information disclosed must, in the claimant’s reasonable belief, tend to show one of the matters listed in section 43B(1) Employment Rights Act 1996. The claimant relies on section 43B(1)(b), namely, that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject. The claimant has satisfied me that he has a “pretty good” chance of showing that he made a qualifying disclosure.

[7]I have considered whether the claimant believed that the information tended to show a breach of a legal obligation. I am satisfied that he did. The claimant has made reference to the data protection regulations, the respondent’s IT policy, and also the Construction Development Management Regulations 2015. I am also satisfied that the information which the claimant disclosed included matters which could amount to other breaches arising from the need to act with probity in carrying out a role in a public office. (J) Page 2 of 4

[8]The employment tribunal must consider whether the belief was ‘reasonable’ for the claimant to hold. On the basis of the material before me I am satisfied that the claimant will show the belief was reasonable. The only account I have been given is by the claimant who has given a compelling an coherent narrative linking the making of the disclosures to the decision to dismiss him on the purported ground of redundancy

[9]The employment tribunal must also consider whether the disclosure was, in the claimant’s reasonable belief, made in the public interest. The employment tribunal will need to decide whether the claimant believed disclosure was in the public interest and it was reasonable to believe that. I am satisfied on the material available that the claimant will establish that the disclosure made was in the public interest. In coming to this conclusion, I bear in mind that the disclosure can also be made in the claimant’s own interest and that the ‘public’ can simply be other people employed by the same employer. The claimant has established that he has a “pretty good” chance of showing that he made a protected disclosure.

[10]Having established there was a protected disclosure, the employment tribunal will have to decide whether the reason or principal reason for the dismissal was one or more of the disclosures.

[11]The material put before me by the claimant shows the redundancy was not the reason for the claimant’s dismissal. The claimant explained that he was dismissed on the purported grounds of redundancy but his role continued in substance. The claimant contended that he was informed that a person was employed by the respondent as a Senior Engineer to carry out work that he had previously carried out. The claimant contends that his role continued, even if described by the respondent in a different way after his employment ended 26 May 2021. The claimant further contends that at his redundancy appeal one senior manager said that the respondent had “got someone temporarily” to do the claimant’s work. The work which the claimant was doing was to undertake work which involves highways, the work among other matters, involves dealing with changes to the Highway, controlled parking zones, parking spaces, and remedial works and changes to the highways. The work carried out by the claimant in his role continues to be carried out by the council. The claimant contends that his role was not redundant and the real reason he was dismissed was because of whistleblowing.

[12]I bear in mind that the reason for dismissal is the set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. The material provided to me in this application for interim relief, which involves a summary consideration, has been provided by the claimant and contains only his version of events. The claim and notice of hearing of this interim relief application was sent to the parties but the respondent has not attended. I have in considering the information provided by the claimant tried to test the material he has presented to me. The claimant has given a coherent and compelling narrative of events. I am satisfied that the claimant has a pretty good chance of showing that the reason for his dismissal was because he made a protected disclosure. (J) Page 3 of 4 The claimant is entitled to an interim award.

[1]This application is made pursuant to s.131 of the Employment Rights Act 1996 and is requiring me to consider whether there has been a change in circumstances justifying a variation or revocation of the interim relief order made.

[2]The respondent’s application is made upon three grounds.

[3]The first ground is essentially relying on the overriding objective saying that, because the respondent was not in a position to respond to the claim as it did not have the pleadings, now that it has responded that is a change in circumstances and therefore, I should revisit the question whether or not the order for interim relief should be made.

[4]Secondly, when one goes on to consider the question of whether not this is an appropriate case in which to make an interim relief order, I ought to conclude that this is not a case where an order for interim relief is appropriate because the claimant cannot show that he has a pretty good chance of succeeding in relation to the relevant claim at the final hearing.

[5]The third ground is that on the basis of the claimant’s own evidence where he states that, “Due to my poor mental health I have not been able to look for work. In this respect my situation is the same as it was at the hearing in June 2021”. That he is unable to work. If that were the case he would now be on zero pay and therefore the interim relief order ought to be varied in that way.

[6]I am satisfied that when one considers the statutory scheme the mere presentation of a response in a case where a response had not previously been presented is not in itself a change of circumstances justifying revisiting the question of whether an interim relief order ought to be made or necessarily varying the order on the basis of s.131.

[7]The statutory scheme requires interim relief applications to be made within seven days of dismissal and that application has to be listed as soon as possible. It is sometimes the case, although not always the case, that interim relief hearings are listed before the date on which a respondent is required to provide a response and also before a respondent has presented a response. Although adjournments of interim applications is permitted they are not common. It is possible on a proper application of the rules, in an appropriate case, to grant an adjournment. A respondent employer could apply for a postponement of an application for interim relief application if the respondent felt that it was in the interests of justice to do so. However, none of that applied in this case because the respondent did not act and respond to the claim which had been sent of the respondent by the tribunal.

[8]The failure of engagement of the respondent was the subject of an earlier consideration by the tribunal this followed correspondence between the respondent’s representatives and the tribunal. I made a decision on the application for a reconsideration which concerned me looking into the circumstances as to why the respondent failed to engage in proceedings and failed to present a response in time. The explanation that was put forward by the respondent was that it was on 1 July 2021 that the respondent became aware not only of the proceedings but also of the interim relief application. The application in relation to these proceedings was made on the dates that I specified in my earlier judgment which, if my memory serves me right, was initially in September 2021 and the draft response to the claim and further grounds provided in October.

[9]What I have considered today is whether the circumstances in this case are such as to amount to a change of circumstances for the purposes of s.131. My conclusion is that the mere filing of a response is not a change of circumstances justifying variation or revocation of within s.131, however the grounds on which the claim is resisted may justify a conclusion that there is a change of circumstances.

[10]There is, in my view, a limitation in respect to which the grounds are capable of constituting a change of circumstances. That limitation I think is this, the grounds must be in relation to the matter which either was not put forward at the time of the interim relief hearing as a basis of defending the claim and therefore was not considered by the tribunal making the order, or some other reason justifying revisiting an issue that was already considered such as discovery of unknown facts. I also consider that the matter set out in the grounds of response to justify variation must be a matter which the respondent could not reasonably have been expected to put forward at that time. In my view, it is not enough simply for the respondent to say, “well we have now properly analysed the circumstances of this case and set out our response and can show that we have a good chance of succeeding in defending the claims” is sufficient for the tribunal to set aside the order for interim relief. It seems to me that it cannot be enough that had it been put forward at the correct time, it might not have been made or even not likely to have been made.

[11]So, what are the circumstances in this case which could be put forward at the time of the hearing had the respondent attended? The respondent seeks to rely on the contents of its response to the claim and says that there is unlikely to be a finding that the claimant made a protected disclosure. It seems to me that whilst the respondent may not necessarily have got all its evidence lined up in the way that it has today at the interim relief hearing, it would have been in a position to present all the arguments that it put forward today at the interim relief hearing. I do not see anything put forward which they could not have put forward at the time of the interim relief hearing.

[12]I concluded that cannot operate so as to defeat the interim relief order that has already been made because this is a case where the respondent had the opportunity of resisting the original interim relief application on the basis that is put forward today and have said it should not be made. That is something that they could have done, and in the application for a reconsideration they did do that. It seems to me that if I were to go back to the start, simply on the basis that they did not have chance to put in this argument at the time the original application was, I would effectively be revisiting the reconsideration application and allowing the respondent to get further a reconsideration decision by the back door.

[13]I agree with the claimant’s submission that it is necessary for there to be finality in process of the legal proceedings, and it also seems to me that compliance with rules and orders is important for certainty and order in the legal process. When one considers the circumstances in this case, I am of the view that the I cannot simply ignore the fact that the claimant’s position today is that he is currently unable to work due to the state of his health.

[14]The wording of s.131 in my view is sufficiently wide and makes it clear that I have to have regard to the circumstances of the claimant and the respondent which may change. An order an under s. 128 is an order that under which the respondent could require the claimant to attend work.

[15]Where the tribunal makes such an order it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the complaint. The amount so specified shall be that which the employee could reasonably have been expected to earn during that period, or part, and shall be paid in the case of a payment for any such period falling wholly or partly after the making of the order, on the normal pay day for that period, and in the case of a payment for any past period, within such time as may be specified in the order.

[16]The respondent could require the claimant to attend work and the order for continuation of the contract of employment should state that the amount which the employee could reasonably have been expected to earn in his normal pay period under normal pay for each day of such period as if he had not been dismissed. I understand that to be the claimant to be paid as though he was subject to the original contract on which he was employed.

[17]I have been provided with a copy of the contract which shows the claimant’s entitlement to pay in circumstances where he is unable to work. It seems to me that the claimant’s position is that he would now not be in receipt of any pay under the terms of his contract if, as he states, he has been in such a poor state of health that he has been unable to work since June 2021. So, the respondent’s application should succeed in reflecting that in the order but that should be a variation of the order and not a revocation.

[18]S.131 provides that at any time between the making of an order and the determination of the claim the employee or the employer may apply for a revocation or variation order.

Summary

[19]Moreover, it was averred on behalf of the claimant that the respondent’s interpretation was overly literal, and that s129 ERA only applied to the “hearing of an employee’s application for interim relief” not an application to vary an interim relief order.

[20]Mr Bishop, for the respondent, argued that the inclusion of s131(2) ERA must be taken on face value, and must mean that the test under s129(1) should be read into s131 ERA. Otherwise, there is no purpose to s131(2) ERA.

[21]The respondent submitted that this was not an interpretation that would mean an unhappy respondent could apply for variation constantly. Mr Bishop’s point was that, in this case, the respondent’s case on the substantive claim had never been considered; the claimant’s interpretation of s131 is too narrow and asks the Tribunal to ignore the evidence that is now available in the run up to the final hearing. Conclusion on relevant test under s131 ERA

[22]At the hearing, I agreed with the claimant’s interpretation of s131 ERA. However, on further thought, I consider the respondent’s interpretation to be correct.

[23]Reading through s129 ERA, the test set out in that section for the making of an interim relief order is whether it is likely that the underlying claim will succeed.

[24]Taking an objective, plain English interpretation of the wording of s131(2) combined with s129, s129 must then be read as meaning: “This section applies where, on hearing an employee’s or employer’s application for variation of an order for interim relief, it appears to the Tribunal that it is likely that on determining the complaint to which the application relates the Tribunal will find...that the reason (or if more than one the principal reason) for the dismissal is one of those specified in section ... 103A”. - emphasis added

[25]The natural reading of s131 and s129 together provides for a two-stage test for variation of an interim relief order: 25.1. That there be a change in circumstances; and, if so 25.2. That the merits of the underlying claim be reviewed to consider whether, in light of that change in circumstances, that claim is still likely to succeed.

[26]To find that the only test the Tribunal need consider is one of a change of circumstances is to ignore s131(2), and to make it redundant. The legislature must have intended s131(2) to add something to the test for a variation of an interim relief order. It is not clear what other meaning s131(2) could have, other than the meaning set out above.

[27]This interpretation does not open the floodgates for an upset party to apply for variation again and again, as there is still the pre-requisite of there being a relevant change in circumstances.

[28]Moreover, the fact that there is any ability to apply to vary an interim relief order indicates to me that the legislature did not envisage parties being stuck with a decision and an order made at the very beginning of litigation, if there was such a change that needed to be reflected by variation of the order. Therefore, the claimant’s argument for finality of litigation fails even on his own interpretation of the legislation.

[29]Litigation in the Tribunal can take months, and years. It cannot be the case that the Tribunal is barred from reviewing the merits (provided that there has initially been shown to be a change in circumstances). Merits of a claim evolve over time: it must be that the Tribunal (in limited circumstances) is permitted to review the merits and an interim relief order, over the period of lengthy legislation.

[30]What amounts to a change of circumstances is evidently a matter of fact for an individual Tribunal. I was not required to deal with the issue of whether (for example) the production of an ET3 is a sufficient change of circumstances to open the door for the Tribunal to review the merits of the substantive claim. I make no comment as to whether production of a Response would be enough to meet the threshold for a change in circumstances under s131(1) ERA.

[31]However, on pure interpretation of the legislation, I now consider that the interpretation placed on ss129 and 131 combined, must be as set out by the respondent. Findings of fact

Background

[32]The claimant worked for the respondent from 6 November 2017 to 26 May 2021 as a Senior Engineer.

[33]The claimant presented his claim form on 19 May 2021. Within that claim form, the claimant brought a claim that he was automatically unfairly dismissed pursuant to s103A ERA. On 23 May 2021, the claimant made an application for interim relief under s128(1)(a)(i) ERA.

[34]The application for interim relief was heard by Employment Judge Gumbiti-Zimuto on 24 June 2021. At that point, the respondent was not in attendance at the hearing. The Judge granted the application, ordering a continuation of the claimant’s contract of employment from the date of termination of employment (26 May 2021) until the determination or settlement of the complaint - [C/1].

[35]On 16 September 2021, the respondent applied to the Tribunal for the following - [C/5]: 35.1. An extension of time for presenting its ET3; 35.2. Revocation of the interim relief order due to a change in circumstances, that being that the respondent now had sight of the claim form and other Tribunal documents; and, 35.3. Reconsideration of the judgment awarding interim relief.

[36]It was the respondent’s position that the first it had heard of the claim against it was on 1 July 2021, when it had received a Notice of Hearing for the hearing that had already taken place on 24 June 2021.

[37]The respondent’s draft response was sent to the Tribunal on 1 October 2021, with an application to extend time.

[38]By judgment dated 5 November 2021, and sent to the parties on 18 November 2021, the respondent was granted permission to present its response out of time. The applications for revocation and reconsideration were rejected. The respondent was told that, if it wished to make an application for revocation on any other basis, it was to do so within 14 days – [C/6].

[39]By application dated 29 November 2021, and following the abovementioned Judgment, the respondent sought the revocation of the order granting interim relief, as there had been a change of circumstances - [C/12]. This change in circumstances can be summarised as being that the respondent was now in a position to provide its defence, which had not been considered at the original application hearing.

[40]A preliminary hearing was listed for 24 June 2022 to determine the respondent’s application for revocation. By that date, the respondent had added a further ground to its application. Namely that there had been a further change in circumstances, as the claimant was by that stage unfit to work, and so would only have been in receipt of statutory sick pay, if he were still employed by the respondent. The matter was again heard by Employment Judge Gumbiti-Zimuto.

[41]In his Judgment and Reasons, the Judge set out the three grounds relied upon by the respondent – [C/19] paragraphs 3-5: 41.1. “[The respondent was] essentially relying on the overriding objective saying that, because the respondent was not in a position to respond to the claim as it did not have the pleadings, now that it has responded that is a change of circumstances” (Ground 1); 41.2. “This is not a case where an order for interim relief is appropriate because the claimant cannot show that he has a pretty good chance of succeeding in relation to the relevant claim at the final hearing” (Ground 2); 41.3. “That [the claimant] is unable to work. If that were the case he would now be on zero pay and therefore the interim relief order ought to be varied in that way” (Ground 3).

[42]Employment Judge Gumbiti-Zimuto rejected the respondent’s arguments on Grounds 1 and 2. He did however find that the claimant was not fit to work between 24 June 2021 and 24 June 2022. The consequence of this finding was that the Judge considered that the claimant should have been paid in accordance with the respondent’s sick pay policy, as opposed to being on full pay, from 24 June 2021. The interim relief order was varied accordingly – [C/15]. Situation at the hearing today

[43]The change of circumstances that the claimant seeks to demonstrate to the Tribunal today is that he is now capable of working, and so should be entitled to full pay under the interim relief order.

[44]As mentioned above, I had no new statement from the claimant, simply the one that was prepared for the 24 June 2022 hearing. There was no order for a witness statement in advance of that hearing, and yet the claimant produced one. The claimant is therefore capable of providing a witness statement, without an order, when he considers it necessary. Had the claimant felt the need to give evidence, I find that he would have produced a new statement.

[45]In terms of medical evidence, I had sight of a letter from the claimant’s GP dated 8 November 2022 at [C/93] which tells me that the claimant consulted with his GP on 20 September 2021 regarding stress and panic attacks, and was referred to talking therapies. He completed that treatment on 16 December 2021, with the therapist reporting that the claimant had overcome his difficulties. There is no evidence of any further consultations, and so no medical evidence to suggest that the claimant has been unfit to work.

[46]Turning to the GP records following the effective date of termination: 46.1. On 19 June 2021, the claimant’s blood pressure was monitored - [C/95]; 46.2. On 20 September 2021, the claimant reported some health issues and was signposted to IAPT – [C/96]; 46.3. On 16 December 2021 – the claimant was seen by the psychological wellbeing practitioner. I have not had sight of any correspondence from that person - [C/97]; 46.4. On 16 June 2022, just before the hearing on 24 June 2022, there is an entry, but with no further information other than the claimant’s medication details for his high blood pressure - [C/99]; 46.5. On 3 November 2022, the claimant wanted a fit note, stating that he was fit to work, as the respondent was suggesting that he was unfit - [C/100]. This appointment gave rise to the letter at [C/93].

[47]Within the bundle there is also documentary evidence of job applications made by the claimant: 47.1. At [C/29] there is a list of "applied jobs", presumably produced by the claimant (although there is no witness statement to explain this document); 47.2. At [C/30] I have a print-out of a list of jobs for which the claimant is said to have applied. There is no reference to the claimant by name in this document, and no information about the dates on which either this document was produced or the job applications were made. I note that entries state, for example, “applied 6 days ago”, but with no specific date; 47.3. At [C/31], this again is a list that has presumably been produced by the claimant.

[48]I find that the documents at [C/29-31] are of limited evidential value, as they are not supported by the applications themselves, and in any event do not shed light on whether the claimant was/is fit enough to work;

[49]I accept Mr Bishop’s point that these documents are self-serving; all they show is that the claimant made job applications in 2022 and 2023. They do not tell me whether or when the claimant was fit to work. I accept that at [C/29] there appears to be a gap from 25 April 2021 to 2 October 2022. However, given that this is just a list, without any supporting or corroborating evidence of the applications themselves, I place limited weight on this. All that this gap in dates shows me is that no job applications were made in this period.

[50]At [C/77-92], I have seen documents showing engagement with the Department of Work and Pensions (“DWP”) from 8 July 2022 to 20 May 2023. This evidence is of limited assistance as, once again, it does not go to the issue as to whether the claimant was fit to attend work, it simply shows that he was engaging with DWP.

[51]I have considered the claimant’s evidence within his witness statement from the 24 June 2022 hearing. Relevant to his fitness to work, he states the following: “the entire ordeal [at work] left me suffering from depression, anxiety and insomnia... ...after I was dismissed I started to have dark thoughts or suicidal ideation. My GP referred me to IAPT. I have been getting counselling and support. This is still ongoing. I believe I am making steady progress...Due to my poor mental health, I have to been unable to look for work. In this respect, my situation is the same as it was at the hearing in June 2021”

[52]The claimant did not give oral evidence at the 24 June 2022 hearing, but was available at that hearing. Given that the above evidence was in his witness statement, produced voluntarily, I take it at face value as being the claimant’s account of the year between June 2021 and June 2022. Claimant’s credibility

[53]This is an appropriate juncture to mention the claimant’s credibility. Mr Bishop asked me to find that the claimant’s evidence to the Tribunal on 24 June 2022 was incredible, in light of what appeared to be a change in his (the claimant’s) position for the purpose of the index application, in terms of his ability to work since June 2021.

[54]I note that Mr Meiring was very careful in his submissions to me. Mr Bishop interpreted the claimant’s case as being that he (the claimant) had been fit from June 2021 throughout the relevant chronology, other than 20 September 2021 to 16 December 2021. If this were the claimant’s case, this would mean that his evidence on 24 June 2022 was incorrect, and Employment Judge Gumbiti-Zimuto's decision was based on incorrect evidence. However, Mr Meiring made it clear that this was not his position. His position, and the basis of his application today, was simply that the claimant was now fit to work.

[55]I have heard no evidence from the claimant today, and therefore find that it would not be right or appropriate for me to make a finding that the claimant’s evidence to the Tribunal on 24 June 2022 (or any part of his case) was incredible. I make no comment on the claimant’s credibility. Conclusions on the substantive application

[56]I start from the finding of Employment Judge Gumbiti-Zimuto (by which I consider I am bound) that the claimant was unfit to work between 24 June 2021 and 24 June 2022.

[57]I am not satisfied on the evidence before me that there has been a change of circumstances from that position.

[58]The medical evidence shows no clear change. The only matter that the medical evidence proves is that the claimant had some intervention from IAPT in autumn/winter 2021; it really goes no further than that.

[59]The job application evidence does nothing to support the submission that the claimant was fit to work; it simply shows, at its highest, that the claimant was able to fill in some application forms, and engage with DWP.

[60]I have not heard evidence from the claimant on any change to his health since he presented his witness statement at the 24 June 2022 hearing. In that statement, the claimant’s evidence is that, between June 2021 and June 2022, he had not been able to look for work and his mental health was poor throughout that period. On the back of that evidence, Employment Judge Gumbiti-Zimuto made the finding of fact that the claimant was unfit to work from June 2021 to the date of that judgment.

[61]This is the claimant’s application, he bears the burden of proof. As I have set out, the status quo is the finding of fact made by Employment Judge Gumbiti-Zimuto that the claimant was not fit to work from 24 June 2021. There is nothing in the evidence that satisfies me that this position has changed.

[62]I therefore reject the claimant’s application. The interim relief order will remain as it was varied on 24 June 2022. In practice, this means that the claimant will get zero contractual pay until final determination or settlement of the claim, but he will continue to receive pension payments as a result of the order of 24 June 2021.

The Law

[63]We had to treat Mr Mapembe’s evidence with a degree of caution.

[64]We had two witness statements from Mr Mapembe, including a short earlier statement signed by him on 15 June 2022. In this hearing, he confirmed the content of that statement to be true. The Respondent had applied for variation of the Interim Relief Order. The original basis of the application was firstly, that they had not received notice of the original proceedings and had therefore not had the opportunity of opposing the application in the first place and secondly, that this is not a case in which an Interim Relief Order should have been made. For the hearing of that application, Mr Mapembe submitted the above mentioned witness statement of 15 June 2022. It is not clear from the reasons given by Employment Judge Gumbiti-Zimuto whether Mr Mapembe gave evidence on that occasion, it looks as if he did not. Subsequently in 2023, Mr Mapembe applied for variation of the IRO on the grounds that he was fit to work. He produced his medical records. In his witness statement, he said that the effect of the bullying to which he had been subjected was poor mental health, as a consequence of which he had been unable to work since June 2021 and he remained unable to work as of June 2022. Amongst the medical evidence, is a letter from his GP, (page 598) which says that he completed his treatment on 16 December 2021, his therapist had reported that he had overcome his difficulties. In the words of his GP, “therefore there is no medical evidence to suggest that he has been unfit to work during this time frame”. This is confirmed by an entry in the GP’s Records for 3 November 2022, (at page 605.) The entry there reflects information provided by the GP in the above mentioned letter. At paragraph 4 of his June 2022 witness statement, he said that he was continuing to receive counselling. On the basis of the medical records, that is not true.

[65]Mr Mapembe’s explanation in cross examination was that English is not his first language and what was in his witness statement was based upon legal advice he received. That is not a credible explanation. Mr Mapembe’s first language is not English, but his English is good and as Mr Bishop points out, his Degree level qualification in Engineering was attained in the English Language. What he said in his witness statement of June 2022 was not true.

[66]Mr Mapembe suggested that he was the only black person on the team in which he worked. That was not true. Mr Parys Barnett was AfroCaribbean and black.

[67]Mr Mapembe suggested that the unions had not been consulted or involved in the reorganisation. That was patently incorrect.

[68]Mr Mapembe suggested in his witness statement at paragraph 7, that Ms Hothi was not his line manager on 26 March 2019. When taken to Mr Dhuna’s email of 13 March 2019, (page 103) he had to accept that he had been told by Mr Dhuna earlier that Ms Hothi was his line manager.

[69]One of the allegations appearing in the List of Issues and made a number of times during the course of these proceedings, including before Employment Judge Gumbiti-Zimuto on the Interim Relief Application, is that the Respondent had advertised Mr Mapembe’s role while he was still working for them. When he was taken to the advertisement, he acknowledged that it was not his role and that the organisation advertising the vacancy was a private organisation, not a Local Authority. That is obviously the case. He acknowledged that he knew that it was not.

[70]When examining the email correspondence arranging for the Formal Notice Meeting to be rearranged at Mr Mapembe’s request, it was suggested to Mr Mapembe that his approach to this correspondence had been motivated by the fact that he was contemplating issuing Tribunal proceedings. He answered that he was not thinking at that stage that his case might end up in the Employment Tribunal. Yet on 22 March 2019, he commenced Early Conciliation, which is obviously a precursor to the issue of proceedings. He subsequently agreed that what he had said was not correct.

[71]At one point it was suggested to Mr Mapembe that his wife and son would have assisted him in drafting his Claim. He denied that. His wife and son are both described as Lawyers and it is not credible for Mr Mapembe to suggest he received no assistance from them at all.

[72]For these reasons as we have said, we approach Mr Mapembe’s evidence with caution where there was conflict of evidence, looked for written corroboration.

[73]In contrast, we found no reason to doubt the honesty and credibility of the Respondent’s Witnesses.

Findings of Fact

[74]Mr Mapembe describes his ethnic origins as black African, of Tanzanian heritage.

[75]Mr Mapembe worked for the Respondent as a Senior Engineer in its department known as the Highway and Transportation Services Department. His job description is at page 195 of the Bundle. His job title was Senior Engineer Highways Development. He was responsible to the Team Leader of Highways Development. He was responsible for design or design approval, contract preparation and contract management and site control of developer and council improvement highway schemes. His duties included the managing and supervision of developer works. He was required to have a good understanding of health and safety requirements to carry out the duties required under the Construction Design and Management Regulations.

[76]The Respondent produced an Organisational Change Policy and Tool Kit, in consultation with trade unions in January 2018. This begins in the Bundle at page 740. Within that policy, a job matching procedure is set out which explains in its introduction, (page 797) “A job matching process is required when posts in the proposed new organisational structure are new or revised / altered from existing posts in any way. The purpose of the job matching process is to determine how changed existing posts are and how employees should be placed in the new structure. E.g. confirm if employees should be matched or ring fenced and / or provided with restricted competition for a post in the new structure.”

[77]The Organisational Change Policy also contains a redeployment procedure, which begins at page 801 providing that: “Employees facing redundancy due to organisational change should be redeployed wherever practicable to do so. In such situations an interview should be arranged with the employee to discuss the situation and explore the possibilities.”

[78]The Respondents have a Grievance Policy and Procedure, both produced in January 2018 after consultation with the unions, which begins in the Bundle at page 757.

[79]At some point, we are not entirely sure when, about two years before Mr Mapembe was dismissed, he became an Accredited Representative for the GMB Union. There was no evidence before us to this effect, but we accept Mr Mapembe’s oral evidence that this was so. He underwent Accreditation Training with the union between 30 September and 4 October 2019.

[80]In the List of Issues, Mr Mapembe alleges that a Sing Wai-Yu verbally pestered him to reveal the number and names of employees who were members of the GMB; that after his training Ms Hothi, (his manager) had pressured him and asked him whether employees reported their managers to him and whether he could fight for them against their managers, and that on 2 October 2019 Sing Wai-Yu had emailed him asking him how many union members there were in the office. Mr Mapembe repeated these allegations in his witness statement at paragraphs 31 – 35. Ms Hothi did not deal with the allegation in her witness statement. No evidence was produced from Sing Wai-Yu and no evidence was produced from the Respondents to contradict these allegations. We find that these events did occur. Mr Mapembe confirmed in the hearing that these allegations are not relied upon as allegations of detriment, but as detail of his trade union activities, for which he says he was dismissed.

[81]In late 2018 or early 2019, line management of Mr Mapembe changed from Mr Dhuna to Ms Hothi. Mr Mapembe has at times argued or asserted that he was not informed of this change in line management. In cross examination he acknowledged that Mr Dhuna told him of this change in March 2019.

[82]On 13 March 2019, Ms Hothi wrote by email to Mr Dhuna: “It has been brought to my attention by a number of my team that the CIF Projects that Renato is delivering are not being done to our Policies and Procedures. Evidence from the Team clearly show that the Schemes designed by Renato are not to Highway specification, he’s gone against our Policies and Procedures, he’s never supervised any of his works on site and more recently he had instructed the DSO to undertake additional works that has not been paid for by the resident. I have spoken to him on a number of occasions, however he gets very aggressive and will not accept any advice or share any information. He refuses to accept a direct instruction from me and he is rude to his fellow colleagues, more recently I had to ask others to leave a meeting as he point blank refused my request in front of them and became very loud and disrespectful, I had to tell him to lower his voice.”

[83]Mr Dhuna replied to say that he had also heard from Mr Mapembe and that he proposed to meet them both after pending periods of leave. He wrote that he had made it clear to Mr Mapembe that he should report to Ms Hothi.

[84]On 19 March 2019, Mr Mapembe wrote to Mr Dhuna complaining about Ms Hothi, he wrote: “This is regarding an update meeting with Kam Hothi today and Kam’s inappropriate behaviour towards me. After I finished an update of Schemes, Kam sarcastically sits back and laughing at me saying that “finally I got grip on you, as your manager this year you have not delivered any scheme. I have been watching you all these days, you are just sitting there doing nothing”… she wanted to continue with her bullying and belittling me in front of my colleagues… Kam continued to say that I am not fit for this job… Kam called one of my colleague Dass Aparajita to be a witness… Then Kam Hothi went to look for Savio and came back claiming that Savio will be coming to see me in a few minutes, I should not leave. I continued to work on my computer in taking some notes, Kam walked past my desk saying it is better that you are writing some notes. After a few minutes Kam came and told me that Savio will take a bit longer to come and if I want to go home I can do so. I thanked her and said I am still in the office. A few minutes later after some time Kam came to my table and asked me to whom am I sending email? I answered that all emails originate from my computer, can be traced by IT if she wants to do so. All information is available under GDPR and I have nothing to hide… I take this behaviour as unacceptable and would like to know why Kam is doing this now.”

[85]Dass Aparajita had indeed written an email to Mr Dhuna, she wrote: “Kam was talking to Renato about workloads. He again started to raise his voice and started to argue with Kam. As he was refusing to listen, Kam asked me to witness the conversation. Kam said to Renato that she was concerned that he has only delivered two or three schemes and she would have to raise this with Sanjay. Renato very bluntly said, “you can do whatever you want, you can go and tell whomever you want”… He refused to listen to her…”

[86]On 3 June 2019, Mr Mapembe wrote to Mr Dhuna expressing his concerns in relation to the arrangements for Inspections of Works which includes the following: “As outlined in the attached email, the process and stages of inspection, cannot be achieved within two visits. Two, ten minute visits to the site cannot ensure proper monitoring of Quality Control, appropriate building materials, work details, relevant standards, specifications, workmanship, schedule and visual inspection throughout the construction life circle. This requires vigilance, requires one to be on site almost all the time, or at least make regular visits. If I were to qualify and sign off any of these works, based on “two ten minute visits”, this would translate and amount to a, “shortcut”. In a post-Grenfell world, I would be compromising my professional integrity and the reputation of the Council. I simply do not have capacity to undertake the Site Inspector / Clerk of Works duties. In the long run, this could prove cost effective for the Council, as a Clerk of Works can identify problems early and have them rectified with minimal cost and minimal disruption as opposed to the problems manifesting later after hand over. … If the Council can commit to a disclaimer that I can sign off DSO works after two ten minute visits, and that any flaws that manifest later on, cannot be attributed to me, then I will be assured that I won’t be held accountable for any of these flaws.”

[87]In July 2019, Mr Mapembe met with the Respondent’s then Chief Executive Officer in accordance with their open door policy. There is no written minute or contemporaneous record of this meeting. We only have evidence from Mr Mapembe as to what was discussed. We find that he raised the matters he summarises in his Witness Statement: 87.1. That he was being subjected to bullying and harassment which was being covered up by senior managers, (a reference to the behaviour towards him by Ms Hothi and the lack of action as he perceived it by Mr Dhuna); 87.2. That there were recruitment malpractices, (a reference to there being favouritism in in-house appointments by Ms Hothi); 87.3. That there were ongoing statutory breaches of data protection, (a reference to a demand being made of him, as he saw it, to share his password with Ms Hothi); and 87.4. Shortcuts that he was being forced to be complicit in, (i.e. his concerns about his being expected to sign off work after two short inspections of the work in question).

[88]The chronology then leaps to Mr Mapembe’s grievance of 20 April 2020 which begins at page 805. In this grievance: 88.1. He complains about being stressed caused by his having to deal with 46 Councillors and a manager that does not understand engineering, but interferes with engineering decisions, demands changes that do not make engineering sense due to her lack of engineering expertise, ignoring current engineering standards; 88.2. He calls for a stress risk assessment for him personally; 88.3. He states that there have been no stress audits or stress tests, which he asserts has caused injury to his health; 88.4. He complains of harassment by Ms Hothi contrary to s.26 of the Equality Act 2010. He refers to persistent unjustified criticism, the setting of unreasonable deadlines, public humiliation, scapegoating, removal of areas of responsibility and constant negative feedback. He does not identify the protected characteristic to which the allegations of harassment relate; 88.5. He complains the Respondent has failed to irradicate a culture of bullying and harassment; 88.6. He asserts the Respondent has failed to provide a safe system of work; 88.7. He asserts the Respondent is in breach of the implied contractual term requiring the employer to provide support, so that an employee can carry out duties free from harassment, (citing Wigan Borough Council v Davies); 88.8. He asserts the Respondents failed to make it known to its employees that such behaviour is not permitted; 88.9. He states that he no longer wishes to work with Ms Hothi, citing s.44(1)(c) of the Employment Rights Act 1996; 88.10. He cites the case of Waters v The Commissioners of Police for the Metropolis; 88.11. He makes a series of specific allegations against Ms Hothi. In particular he complained about the way she had spoken to him on 19 March 2020, in front of work colleagues; 88.12. He complains that since he has spoken to the Chief Executive Officer, he has been treated as a workplace pariah; and 88.13. He cites s.39 of the Equality Act 2010.

[89]Attached to the Grievance was a chronology of specific events which Mr Mapembe said amounted to bullying and harassment by Ms Hothi. For example: 89.1. That on 5 March she said in a team meeting that there were major flaws with the CIF Schemes that he was undertaking; 89.2. That she had deleted information and correspondence from Members and the public from the filing system, (which he said was protected under GDPR); 89.3. That she harassed him to provide her access to his password, which he said would be a breach of GDPR Guidelines, which led to her accusing him of failing to follow a management instruction; 89.4. That she had harassed him to carry out the duties of an Inspector of Works and sign off work after two ten minute visits to site, which he said amounted to a shortcut. She again attributed his refusal as a failure to follow a management instruction; 89.5. Mr Dhuna refused to act upon his expressed concerns about Ms Hothi’s behaviour towards him; 89.6. After his meeting with the CEO, he had become the office pariah; and 89.7. That there was nepotism within the department giving as an example somebody being persuaded by Ms Hothi not to apply for a position because it had already been ear marked for somebody else who was a relative or friend.

[90]The grievance was investigated by a Mr D Maycock of an outside organisation known as South East Employers, a not for profit organisation providing employment and organisational support to local authorities in the South East of England. The Investigation Report appears in the Bundle beginning at page 145.

[91]Mr Maycock did not provide Mr Mapembe with an outcome to his grievance until 7 July 2020, (page 334 of the Bundle). Mr Maycock did not uphold the grievance, but made three recommendations: 91.1. There should be mediation between Mr Mapembe and Ms Hothi; 91.2. Whilst there had been concerns about Mr Mapembe’s capability, they had not been correctly addressed in the appropriate procedures of the Respondent and those concerns should be appropriately addressed; and 91.3. There be a review of the processes and procedures.

[92]Mr Mapembe appealed against the grievance outcome on 14 July 2020, on the grounds that the grievance had not been properly investigated and that Ms Hothi should be held accountable for her conduct, (page 210). Detailed grounds of appeal are set out in a document attached which begins at 211 of the Bundle.

[93]A Grievance Appeal Hearing took place on 20 August 2020. We were not referred to any notes or minutes of that hearing, but an outcome was provided by way of letter dated 3 September 2020, which is at page 225. The appeal was dealt with by a Mr Moone, Service Lead for Housing (People) Services. The appeal was partially upheld, in that there was found to have been a lack of sufficient investigation into Mr Mapembe’s allegations relating to the incident on 19 March 2019. In all other respects, the grievance outcome was upheld. Mr Mapembe was informed that Human Resources would be in contact with him in relation to the further investigation into the incident on 19 March 2019.

[94]A Ms Kitson, Strategy and Partnership Manager, was appointed to investigate the alleged incident on 19 March 2019 and the recruitment practices of Ms Hothi. She confirmed this to Mr Mapembe in a letter dated 5 October 2020, (page 237). She proceeded to interview a number of individuals and notes of those meetings begin at page 239.

[95]In the meantime, between July and October 2020, the Respondent had undertaken restructure planning with a view to saving £5 million on its annual budget. They called this exercise the, “Our Future’s Restructure”. The exercise was conducted by the Chief Executive Officer, the Director of Transformation and an outside Consultancy known as Gate One.

[96]During this planning, Ms Hothi met with Gate One on one occasion, in which she had a discussion about Parking Services, (not Highways).

[97]Officers from the union’s representing the Respondent’s employees were consulted during the planning stages on 16 September and 28 October 2020, (page 256). It was proposed that trade union representatives would be involved in the exercise to match existing employees to the new roles under the proposed new structure.

[98]A consultation document was produced that set out the proposals with a view to consultation with all staff and with the unions UNISON, UNITE and the GMB. Outlined in its introduction was that the need for change arose from continued reduction in central government funding, rising demand for its key services, an increase in resident’s expectations and, “a desire to grow resilience and independence in our communities”. The consultation period was to run from Wednesday 4 November to Monday 21 December 2020.

[99]In the meantime, Ms Kitson met with Mr Mapembe. The date of that meeting is not clear, but in the minutes, (page 302) we can see that Mr Mapembe signed the minutes on 30 November 2020.

[100]We note that the consultation document set out that the Respondent’s staffing levels would be reduced from 1176.46 to 1049.44 full time equivalent under its new proposed organisational structure. It explains that job evaluations would be carried out by a panel of trained job evaluators and Trade Union Representatives, (page 280). The process is further explained at page 288, a familiar process for local authority restructures: 100.1. A post is matched under the new structure if it is broadly the same as an existing post; 100.2. If there is more than one post in the existing structure which matches to a single post under the new structure, those in the existing posts will be, “ring fenced” and will have to go through a selection process in competition with each other; 100.3. Where there are posts under the current structure that are neither matched nor ring fenced, there are new alternative roles in the new structure that will be identified as possible opportunities. Those at risk can express interest for such a vacant role, either one grade up or one grade down from their current role; and 100.4. Where there is no match and an employee is at risk of redundancy, suitable redeployment opportunities will be considered and vacant posts published once notice has been served.

[101]Mr Mapembe was notified on 4 November 2020 that within the new structure, his role had been deleted, he had not been ring fenced and he was therefore at risk of redundancy. We do not have the document notifying Mr Mapembe of this in the Bundle, but we know there was such a document, as Mr Mapembe refers to it in an email he sent asking questions about it on 10 December 2020, (see below).

[102]On 3 December 2020, Ms Kitson provided the outcome to her investigation in a report which begins at page 344. She concludes, (page 356): 102.1. In respect of the incident on 19 March 2020, Ms Hothi had not intentionally sought to humiliate Mr Mapembe however, she admits speaking to him in an open office in front of others; 102.2. There was evidence that there had been ongoing performance issues with Mr Mapembe over a number of years and that he had been difficult and challenging to manage; 102.3. Mediation is not a practical solution; 102.4. She recommended Mr Mapembe receive a formal acknowledgement that the actions toward him on 19 March were inappropriate and the impact of that upon him, that Ms Hothi receive further training to enable her to better manage challenging behaviour and poor performance and that Senior Management give thought to arrangements for the further management of Mr Mapembe in the future; 102.5. There are strong ingrained perceptions of nepotism and a serious culture of mis-trust and difficult working relationships. Various steps are recommended to address this.

[103]As alluded to above, on 10 December 2020 Mr Mapembe sent an email to a general staff inbox set up specifically for the purpose of receiving questions from the Respondent’s staff in relation to the consultation exercise. Answers were provided on 14 December 2020, (page 368). The further information provided included: 103.1. The CIF Schemes previously managed by Mr Mapembe would be spread, distributed, across various teams of the Council; 103.2. Highways work will be covered by engineers in other departments; 103.3. A number of engineers in different fields will be retained, specific jobs may be commissioned out to external consultants; 103.4. If Mr Mapembe believes that there has been any nepotism, he should report it; 103.5. Line managers have not been involved in the design process; and 103.6. Matching has been done by a panel of HR colleagues and trade unions representatives.

[104]On 15 December 2020, Mr Mapembe identified an advert which he said was an advertisement by the Respondent for his role, (page 234). The advertisement was for, “Senior / Principal Highway Engineer – Slough - £48-£55k – LA / Development Schemes”, he copied in the link. When one looks at the advertisement that the link led to, it is clearly for a commercial enterprise who have an office in Slough. Mr Mapembe’s salary was £40,000 at the time, the advertised role would have represented a significant leap in salary for the appointee. The role included private healthcare, (a benefit not enjoyed by the Respondent’s employees). Mr Mapembe agreed in evidence this was not an advert for his role and he confirmed to the Tribunal he realised that this was not his role when he went for a meeting with his union whilst he was still working for the Respondent.

[105]There was a further consultation meeting with the trade unions on 16 December 2020, the minutes are at page 363 of the Bundle. They confirm that the job matching process had been undertaken by Mr Rawlings of UNISON and somebody from the HR Advisors, South East Employers.

[106]A response to the Consultation Exercise was published by the Respondent in January 2021, the document begins at page 395 of the Bundle. The anticipated time scale with new contracts issued to matched individuals, would be late March 2021 onwards, with the new structure in place from April 2021. At the request of the unions, the deadline for expressions of interest in vacant posts had been extended from 21 December 2020 to 7 January 2021.

[107]Mr Mapembe was written to on 8 March 2021, to invite him to a meeting on 15 March, in order to discuss his individual circumstances. That meeting was postponed and eventually took place on 30 March 2021. In the meantime, on 22 March 2021, Mr Mapembe commenced Early Conciliation with ACAS. At the meeting on 30 March 2021, Mr Mapembe was provided with a letter giving him notice of redundancy, informing him that his employment would come to an end on 26 May 2021. He was told that he would be placed upon the Redeployment Register and considered for any vacancies that became available.

[108]Also on 30 March 2021, Mr Mapembe was issued with an outcome from the outstanding aspects of his grievance, i.e. with regard to the events of 19 March 2019. The letter is at page 521 of the Bundle. That is, whilst Ms Hothi had not intended to humiliate him, she had spoken to him in front of others and he should receive a formal acknowledgement that the events on that day were inappropriate and the impact that had upon him. There was evidence of performance concerns but those did not warrant Ms Hothi’s actions. There would be recommendations in that regard. The outcome was provided by Mr S Gibson, Executive Director of Place.

[109]Mr Mapembe completed an Expression of Interest form. The role that he expressed an interest in was that of Development Manager, (Place – Place Strategy and Infrastructure). It was a Level 9 role, (Mr Mapembe was on Level 8). He agrees it was not a role for which he was suitable. He was though, shortlisted for the role of, “Members Business Partner”. He was interviewed for that role on 26 February 2021. The interview panel consisted of three people who were not in any way previously involved or had any dealings with Mr Mapembe or Ms Hothi, (page 478). The outcome was that he was deemed, “not appointable”.

[110]We note that Mr Mapembe had also expressed interest in the roles of Transport Lead (Place – Place Strategy and Infrastructure), (page 482) and Planning Manager (Place – Place Regulation) (page 484). He agreed that these were not roles for which he was suitable.

[111]On 7 April 2021, Mr Mapembe submitted an appeal against his dismissal, (page 529 of the Bundle). In his letter of appeal he stated: 111.1. The job is still being undertaken by the Council; 111.2. He was selected because he had raised a grievance; 111.3. His selection was racially motivated; 111.4. His role has been advertised; 111.5. He was targeted because he was a member of a union and a Union Representative; 111.6. People were retained as a result of nepotism; and 111.7. The alternative role he was offered was not genuine.

[112]Mr de Cruz provided a management response to the appeal, it appears in the Bundle at page 548. A hearing took place on 13 May 2021, chaired by Mr West. The minutes are at page 557.

[113]The appeal outcome was provided by letter dated 18 May 2021, (page 570). Mr West’s conclusions included: 113.1. In a council wide restructure to achieve £5 million per year savings, (developed by Gate One, the Chief Executive and the Director of Transformation) there had been consultation with the unions, the matching process had been contributed to, scrutinised and reviewed by the unions, the consultation was with all staff in November and December 2020 and that it was a genuine situation in which Mr Mapembe’s role was no longer required. 113.2. His selection for redundancy was absolutely nothing to do with his grievance. His line manager and others involved in his grievance had no involvement in the process. 113.3. Any suggestion that the dismissal was racially motivated was refuted. 113.4. His role had not been advertised. 113.5. The suggestion that he was dismissed because of his union membership or activities was refuted. 113.6. He agreed that during the interview for the role for which he had applied, it became apparent that it was an administrative rather than an engineering role and was not therefore a role that he wanted.

[114]Mr Mapembe’s employment with the Respondent came to an end on 26 May 2021. Early Conciliation ended on 3 May 2021. These proceedings were issued on 19 May 2021. Nobody appears to have picked up on the fact that his claim, which is primarily of unfair dismissal, appears to have been issued before the end of his employment.

[115]There are organisational charts in the Bundle, at page 592 the Parking Team managed by Ms Hothi before the reorganisation and at page 593, of the Network Team managed by Ms Hothi after the reorganisation. There were 21 posts within the team before the reorganisation and 15 posts afterwards. Although Mr Mapembe said in evidence that he was the only black person in the team, that is not correct, there was a Parys Barnett who is Afro-Carribean and who was retained after the reorganisation. Although there has been suggestion of bias in favour of people who are Sikh, it is apparent from the reorganisation charts, (which records people’s ethnicity) those retained and those made redundant are a mixture of people who are Sikh, people who are Muslim, people who are white and people who are black.

[116]Finally, it is worth acknowledging that Mr West frankly acknowledged in his evidence that the restructure was a disaster. It led to many people leaving the employment of the Respondent out of choice and a collapse of the Respondent Authority. A Report into the reorganisation was prepared for the Secretary of State, by an organisation called Best Value Commissioners. It is scathing in its review, describing the reorganisation as, “Totally unfit for purpose and resulted in the speedy destruction of Officer capacity and competence with many remaining individuals now in posts they have no experience in and whole Teams being made redundant which were essential to delivery of statutory services.” Conclusions The Estoppel Argument

Conclusions

[117]Mr Bishop submits that Mr Mapembe should be estopped from putting his case in any way other than that this was not a genuine redundancy situation and he was unfairly dismissed because of his whistle blowing. He says that must be so because it is the only basis upon which the Interim Relief Order could have been made.

[118]Mr Bishop correctly submits that Interim Relief is not available in a case where there is a genuine redundancy and where the claimant says he was unfairly selected for that redundancy for one of the proscribed reasons for which Interim Relief is available. McConnell and Anor. v Bombardier Aerospace / Short Brothers Plc. (No.2)

[2009] IRLR 201

, is authority for that proposition.

[119]When Mr Mapembe issued his claim he was unrepresented. He begins the statement that was attached to his Claim Form with, “I was chosen for redundancy, using unfair selection and discriminatory criteria by managers, who mob bullied me after reporting / whistle blowing”.

[120]A little later in that same opening paragraph he wrote, “The management victimised me by getting rid of me on the pretext of redundancy”.

[121]If his claim was solely that he was chosen for redundancy in a redundancy situation, using unfair and discriminatory selection criteria, Interim Relief would not have been available for him. If his claim was that he was “victimised” for whistle blowing on the pretext of redundancy, (in other words, not a genuine redundancy) then Interim Relief would be available.

[122]Subsequent to submitting his Claim Form, on 23 May 2021, (within the required seven days) Mr Mapembe submitted his application for Interim Relief, citing s.128 and 103A of the ERA 1996. He submitted that it was likely the Tribunal will find that the principal reason for dismissal was his protected disclosures. He sought an order continuing his contract of employment, pursuant to s.129(9) of the ERA 1996. Clearly he had some legal assistance in submitting the application.

[123]The application for Interim Relief came before Employment Judge Gumbiti-Zimuto on 24 June 2021. Mr Mapembe was unrepresented. The Respondent did not attend. For reasons that we do not need to go into, the issue of these proceedings had not come to the attention of those who needed to know, within the Respondent organisation.

[124]In granting the application, Employment Judge Gumbiti-Zimuto recited in his Reasons at paragraph 11, (in the Bundle at page 29) that the material before him showed that redundancy was not the reason for dismissal because his role continued in substance. He recites that, “The Claimant contends that his role was not redundant and the real reason he was dismissed was because of whistle blowing.”

[125]Mr Bishop’s argument is that in so contending, Mr Mapembe has effectively, “nailed his colours to the mast”. He is bound by that contention and estopped from putting forward any other argument.

[126]Employment Judge Gumbiti-Zimuto records at the end of his paragraph 12, “The Claimant has given a coherent and compelling narrative of events. I am satisfied that the Claimant has a pretty good chance of showing that the reason for his dismissal was because he made a protected disclosure.”

[127]It is worthy of comment as an aside at this stage, that this Tribunal did not have the benefit of a compelling and coherent narrative of events from Mr Mapembe.

[128]Employment Judge Gumbiti-Zimuto was asked to reconsider his order for Interim Relief. He refused that application. His Judgment and Reasons begin in the Bundle at page 56, handed down on 5 November 2021. At paragraph 21 of his Reasons, he distinguished McConnell because in McConnell it was conceded that the reason for dismissal was redundancy and the case was about selection for redundancy. Redundancy is not conceded here. The final sentence at paragraph 21 reads, “In this case the Claimant is claiming “unfair dismissal by reason of whistle blowing”…”

[129]Once again, Mr Bishop latches onto that and asserts that it is a finding by Employment Judge Gumbiti-Zimuto and as a consequence, Mr Mapembe is estopped from arguing otherwise. He suggests that we are bound by the finding. He submits that the Claimant cannot run a case in the alternative, that is mutually exclusive.

[130]Returning to the document attached to the Claim Form, what one might describe as the Particulars of Claim, it is clear that Mr Mapembe was submitting his case in the alternative. At page 5 of that document, (page 18 of the Bundle) he refers to an unfair redundancy process. He complains about lack of information on workers in the pool for selection, or how the selection was made, the absence of criteria on scoring and the favouritism shown to family and friends. He also argued at page 7 of his document, (page 20 of the Bundle) that he was selected for redundancy because he was black.

[131]Mr Bishop has tried to run this argument before, although the relevant documents are not in the Bundle and do not appear to have been referred to in his submissions. They are in the Tribunal file. The Respondent submitted a Strike Out Application on 9 June 2022. At paragraph 9 they wrote, “C chose to claim based on dismissal for his own financial benefit via the IRO, he cannot also run mutually exclusive cases based on redundancy. To do so would mean that he should and could not have applied, let alone succeeded, on an IRO Application, albeit R’s case has never been considered.”

[132]The strike out application was referred to Employment Judge ShastriHurst, (regrettably not until 3 November 2023) and on her instructions, a letter was written to the parties which stated that the application would be considered at the outset of the Final Main Hearing, which at that time was scheduled to commence on 21 November 2023. She remarks, “A Claimant has the right to present claims in the alternative. Just because the Tribunal found at the early stages of litigation, prior to the Respondent’s Response and prior to disclosure, that the claim for whistle blowing has pretty good prospects, does not automatically mean that the other dismissal claims have no reasonable prospects of succeeding at all.”

[133]The case came on for Final Hearing before Employment Judge Annand and two Members on 21 November 2023. They granted an application for postponement by Mr Mapembe because a few days earlier, his Solicitors had withdrawn, leaving him unrepresented. However, the Tribunal dealt with the strike out application. They refused it. In their Reasons at paragraph 28, Employment Judge Annand wrote, “It is not unusual for Claimant’s to put forward two claims in the alternative, or indeed for Respondents to defend the Claim on alternative grounds. If one Claim (or Response) fails, the party then relies on the other in the alternative. In Whitburn v Royal Devon and Exeter NHS Foundation Trust EAT0188/15, Mr Justice Kerr observed: “Where one of two alternative ways of putting a case must necessarily fail, while the other may succeed, the fact that one or other is doomed to fail says nothing about the merits of whichever one is not doomed to fail.”

[134]We respectfully agree. Mr Mapembe is entitled to put his case in the alternative. We do not accept Mr Bishop’s submissions, without supporting authority, that the finding by an Employment Judge at an Interim Relief stage is binding on the Tribunal that finally determines the outcome of the case, or that a Claimant is estopped from presenting in the alternative, the case which formed the basis of the Interim Relief Order. Was there a genuine redundancy situation?

[135]The Respondent had a genuine need to make significant financial savings. £5 million per year was its target. We see this from the quote from the consultation document of 4 November 2020 as set out above, (from page 276 of the Bundle).

[136]As we have also noted above, the head count was reduced from 1,176 to 1,049 full time equivalent. That is 127 full time equivalent fewer posts.

[137]As part of that restructure, a new structure was implemented for the Parking Team, as noted above when comparing the two organisational charts.

[138]The reorganisation in particular involved removal of the requirement for somebody to do work of a particular kind, that of a Highways Development Engineer.

[139]Mr Mapembe’s job role was not advertised. He was not replaced, or “back filled”. The role of Engineer that he undertook on projects was spread amongst others as confirmed in the evidence of Mr de Cruz, (which we accept) and as set out in the email of 10 December 2020 at page 368 of the Bundle.

[140]There was a genuine redundancy situation; a diminished requirement to do work of a particular kind.

[141]The question is whether the decision to dismiss Mr Mapembe was an act of direct race discrimination? He relies upon his ethnicity as black African. Was he treated less favourably than a person in precisely the same circumstances but not black African, would have been treated?

[142]The statistics do not support Mr Mapembe’s case. Muslims, Sikhs and white British people from his Team were made redundant too. A black person was retained, (albeit we acknowledge, black Carribean rather than black African and we acknowledge that can be a difference that could give rise to less favourable treatment).

[143]In the List of Issues, whilst not naming comparators, Mr Mapembe made reference to friends and relatives of Ms Hothi. He was not able to be specific about who he meant. In any event, we find that Ms Hothi was not involved in the process at all. The overall design of the reorganisation, job matching, ring fencing and the determination of job applications, were all outside the sphere of line managers. Ms Hothi had no involvement in those processes whatsoever. For those reasons, we eliminate Mr Mapembe’s proposed comparators in the form of Ms Hothi’s family and friends.

[144]We were unable to identify any facts from which we could properly conclude, absent explanation from the Respondent, that the reason for Mr Mapembe’s dismissal was his race. The burden of proof does not shift to the Respondent. We find that a hypothetical comparator, a person in exactly the same role as Mr Mapembe but not black African, with the same experience and abilities, would have been selected for redundancy and would not have succeeded in the job applications or expressions of interest.

[145]The complaint of direct race discrimination therefore fails. Was the reason for dismissal Mr Mapembe’s Trade Union Membership or activities?

[146]Mr Mapembe was a Member of the GMB and had attended a training course on 30 September to 4 October 2019. The questions asked of him did not amount to activities. There is no evidence of his having engaged in any other trade union activities. We find that he did not.

[147]There was no evidence that Mr Mapembe’s trade union membership or such minimal activities as there were, (his attending a course or answering some questions) gave rise to any sense that anyone at the Respondent would want to remove him from post.

[148]Furthermore, the entire process was as we have noted, handled externally in terms of the reorganisation, job matching and ring fencing. The process involved Trade Union input in the decision making.

[149]There is no evidence at all that those who interviewed Mr Mapembe would have any reason to target him because of his trade union membership or activities.

[150]Mr Mapembe’s membership of the GMB and such activities as he may have undertaken are not the reason or principal reason for his dismissal and his claim in this respect therefore fails. Was Mr Mapembe dismissed because he had made protected disclosures?

[151]There are three instances in respect of which Mr Mapembe says that he made protected disclosures: 151.1. The first is in respect of his meeting with the Respondent’s Chief Executive Officer in July 2019. We accept that he met with the Chief Executive Officer and that he spoke in general terms about matters of concern in relation to the way he was being treated as he perceived it, by Ms Hothi, his perceptions of nepotism, of Data Protection irregularities and of what he described as, “short cuts”. We find that he did not disclose information, he simply made general allegations that could not be said to amount to the giving of sufficient detail as to meet the definition. For that reason, what he said to the Chief Executive Officer did not amount to protected disclosures. 151.2. The second instance of the alleged making of protected disclosures is in Mr Mapembe’s grievance of April 2020. Mr Mapembe did give specific information about the events of 19 March 2020 in his grievance about what he says Ms Hothi had said to him. Such conduct by one’s manager, if true, could potentially amount to a breach of the implied term in one’s contract of employment to maintain mutual trust and confidence, could amount to discrimination if it were either related for example to one’s race or a person of a different race would not have been subjected to that treatment, and could be in breach of the Respondent’s obligation to maintain a safe system of work. It could also amount to victimisation, (as Mr Mapembe alleges in his grievance) if it were because of a protected act in his speaking to the Chief Executive Officer in such a way as to amount to allegations of discrimination. These are all legal obligations to which Mr Mapembe alludes in his grievance. The conduct of Ms Hothi was not in fact because of race, or related to race, or victimisation, or a breach of the implied terms to maintain either trust and confidence or a safe system of work. He did not reasonably believe the information provided tended to show a failure to comply with legal obligations. In our judgement, he did not reasonably believe that the disclosures he made were in the public interest. He made those disclosures in his own personal interest and whilst his motive is not relevant, he did not reasonably believe that it was in the interests of the public to know about his disagreement with Ms Hothi on 19 March 2020. For those reasons, we find that the disclosures made do not meet the definition of a protected disclosure. 151.3. The third alleged instance of making protected disclosures is in the Grievance Appeal of 14 July 2020. That document does not raise anything further. We find that it does not amount to the making of protected disclosures.

[152]For the avoidance of doubt, Mr Mapembe has made references to the sharing of passwords contrary to GDPR and, “short cuts” in the requirement that he approve works on the basis of two site visits. We find that he failed to provide specific information so as to meet the definition of a protected disclosure or to establish something that he reasonably believed tended to show a breach of a legal obligation. Mr Mapembe was unable to demonstrate to our satisfaction, that the Respondent’s proposal that a shared folder be created, (which is what his reference to sharing passwords alluded to) or that he approve works on the basis of two inspections, amounted to a breach of any Act of Parliament or Regulation.

[153]Having found that Mr Mapembe has not made any protected disclosures, his complaint that he was unfairly dismissed for having made such disclosures must therefore fail.

[154]However, had we decided otherwise, having regard to the fact that the entire process was handled remotely as explained above, we find that the reason, the only reason, for his dismissal was redundancy. There were no facts from which we could have reasonably concluded, absent evidence from the Respondent, even if the matters he had raised did meet the definition of protected disclosures, that the reason for dismissal was anything to do with the fact that he had raised those matters.

[155]For these reasons Mr Mapembe’s complaint of unfair dismissal for having made protected disclosures also fails. Ordinary Unfair Dismissal

[156]The list of issues does not contain a reference to ordinary unfair dismissal and the application of the test of fairness set out at s98(4) of the ERA. However, it is implicit in the references to consultation, fair selection and suitable alternative employment. The document that sets out the particulars of his claim filed with his ET3 refers to in a heading, “Unfair Redundancy Process”.

[157]The Respondent consulted extensively with the unions, from an early stage, when proposals were still formulative. The Respondent informed and consulted with its workforce, including Mr Mapembe, when the proposals were still formulative. The Respondent consulted individually with Mr Mapembe.

[158]Selection for redundancy was objective and fair, arrived at after those apart from the everyday events within the Respondent’s workforce had drawn up plans for reorganisation, job matching and ring fencing. Competitions for vacant posts were conducted objectively and fairly by independent interviewers applying fair and objective criteria. Full consideration was given to the availability of any suitable alternative employment before dismissal took effect.

[159]For these reasons, the complaint of unfair dismissal contrary to the test of fairness in s98(4) of the ERA also fails.