Mrs H T Adams v Poro Technologies Ltd and Dr T Zhu: 3311054/2023
EMPLOYMENT TRIBUNALS
Case No 3311054/2023
Between
Mrs Helen Teresa AdamsClaimant(1) Poro Technologies Limited (2) Dr Tongtong ZhuRespondent
Before
Employment Judge MichellMr Darryl Hutcheon (instructed by counsel) for claimantMr Jonathan Cook (instructed by counsel) for respondentDate 3 January 2025
JUDGMENT
The claimant’s claims of automatically unfair dismissal (s.103A ERA); of detriment for making protected disclosures (s.47B ERA), and of victimisation for making protected acts (s.27 EqA) are all dismissed.
REASONS
[1]The claimant worked as chief commercial officer (CCO) of the first respondent (the company) from 1.9.21 until 17.5.23, when she was dismissed with a PILON due to alleged performance issues. The second respondent (‘Dr Zhu’) is CEO of the company. By a claim presented to the tribunal on 20.9.23, the claimant brought a claim of automatically unfair dismissal (s.103A ERA), ‘whistleblowing’ detriment (s.47 ERA), and victimisation (s.27 EqA). Liability is denied in the notice of appearance.[2]A preliminary hearing took place on 24.5.24. At that hearing, the issues were clarified to an extent, and directions were made for the final hearing. The final hearing[3]For the final hearing, we were provided with a bundle containing 1,450 pages. A further 28 pages were added to that during the hearing, in the form of a supplemental bundle.[4]The matter had been listed for 6 days, but only 5 days was allocated. Counsel for that reason sensibly agreed on day 1 that various threatened applications (objections to the introduction of some other documents, and strike out of the claim for late production of the claimant’s witness statement) would not be pursued in the interests of time and pragmatism, and -on day 3- that some documentation which appeared to be ‘without prejudice’ but which was within the agreed bundle could be removed without further discussion. We indicated we would take no note of it, and it formed no part of our deliberations.[5]Day 1 (19.8.24) was taken up with pre-reading the witness statements -the claimant’s, in particular, was very lengthy- and with further clarification of the issues. The issues were definitively agreed in the form of the List of Issues (LOI) set out at the Annex to this judgment. (We have excluded the matters relating to remedy in the LOI, as the hearing was listed to determine liability only.)[6]Below, we refer to the paragraph numbers from the LOI for ease of reference. Some parts of the LOI still remained unsatisfactorily vague.[7]On day 2, we heard evidence from the claimant. That evidence continued until lunchtime on day 3, when her witness Dr Edward Buckley was interposed for the rest of the day. On the morning of day 4, the claimant completed her evidence. Dr Zhu then gave evidence from about 11am that day until about 3.20pm on day 5. We then adjourned part heard to 25.10.24, which was the earliest date when the parties, their counsel and the tribunal could reconvene.[8]On the morning of Day 6 (25 October), we were provided with some additional paperwork- including metadata showing the creation date of the May 2023 board pack, which we had asked to be provided. We then heard evidence from Dr Yingjun Liu, CTO and co-founder of the company. Counsel had already produced written submissions in accordance with a case management order which we made at the conclusion of day 5. The claimant’s ran to 46 pages; the respondents’, to 75 pages. We read them with care. We were provided with an agreed joint bundle of 26 authorities, and some IDS extracts, running to a total of 633 pages. Mr Hutcheon added another two authorities (EB v. BA and Fincham v. HM Prison Service) during his submissions. We were grateful for counsel’s industry- which especially useful given the intervening period between days 1-5 and 6 and thereafter. We heard oral submissions from the parties at close of evidence, too. We warned the parties that there would be some delay in promulgation of judgment due to other commitments. We thank the parties for their patience in that respect.[9]By way of general observations on the paperwork and evidence:(a) On numerous occasions the claimant said that paperwork which ought to have been disclosed by the company had not been disclosed. As to this:a. It appeared from time to time that the company had not been as thorough in carrying out its disclosure obligations as it ought to have been. For example, Dr Zhu confirmed that he did not check his WeChat messages for relevant text, despite the company’s solicitors’ 18.6.24 letter, which says “there are no relevant and disclosable messages contained on the we chat platform”. This was unsatisfactory.b. We were a little surprised by the claimant’s assertion in cross examination that she did not know how to ask for specific documents - for example, documents which showed her being sidelined from Samsung negotiations- as part of the disclosure process. The claimant had the benefit of her current lawyers from the inception of the claim. And her solicitors had made a detailed specific disclosure request under cover of a letter dated 17.6.24.(b) The respondents’ two witness statements were not of high quality. On occasion, the wording used was identical -and the explanation for that fact was not satisfactory. The impression the statements and witnesses gave was that insufficient care had been put into case preparation.(c) There were omissions from both the company and the claimant as regards witnesses who might have been expected to be called/produce a statement. We gave due regard to the above when assessing the evidence, as appropriate. RELEVANT FINDINGS OF FACT[10]As set out above, a significant amount of factual material was put before us. We have focused on those matters which were necessary in order for us to determine the issues, albeit we have looked at the whole picture when assessing the points in the LOI.
Background
[11]The company works in the business of display technology development. It was founded in 2018, and is (as is put in the Grounds of Resistance) a “spin-out” from the University of Cambridge. The claimant’s background is in the technology industry. She worked for ARM Holdings -a large scale enterprise with over 3,000 employees- for some 11 years until 2017. Thereafter, she worked as CCO/CSO for various small employers, in each case for less than 2 years. Immediately prior to the company, she worked for Paragraf for about 14 months -though this proved to be (as she put it) “a disappointing experience.” It did not work out. We suspect she may have been more at ease working with larger and more structured entities.[12]The claimant commenced work for the company on 1.9.21. Before she started, she met with Dr Zhu, and made clear to him that transparency was very important to her because of her recent experiences working in the startup community. She said she had had experience of companies misleading the market regarding the maturity of their technologies, and wanted to ensure that did not happen at the company. Dr Zhu reassured her in that regard.[13]The press release heralding her arrival at the company indicates high hopes. It refers to her “leading a team [at ARM] delivering $1 billion in annual sales revenue”. It boasts her “track record of success in technology sales and sales management in the semiconductor industry”. It explains that her appointment is “the next step along our scale up trajectory.” Sales and sales management was the purpose of her appointment.[14]The claimant was subject to a probationary period of six months. (Dr Zhu’s 3.8.21 email to the claimant indicates that the probationary period could be shortened to three months, subject to board approval. But the six month period was never accelerated. Dr Zhu’s 9.8.21 email confirms a 6 month probationary period.) She started on a basic salary of £100,000 p.a., but was told on 3.8.21 that the company planned to increase that sum by £50,000 after the next funding round, which it aimed to close by the end of 2021. She was also told that she would be entitled to various shares, subject to satisfactory probation and board approval.[15]Because the company was a startup, everything was small scale. At the beginning, the company had only one work unit, which comprised a wet lab downstairs and a small characterization lab upstairs. Additionally, there was one large office occupied by Dr Zhu and Dr Liu, with a small kitchen and inventory room off that. A further unit was acquired about 100 yards away, shortly afterwards. Within about 8 weeks, the claimant had employed Alexis Scott as an office manager.[16]In September 2021-January 2022, the claimant attended a variety of business development meetings. The claimant also had regular 1:1 meetings with Dr Zhu. We accepted Dr Zhu’s evidence that at the start of her employment, he and she used to chat several times a day, often as part of training and getting her up to speed.[17]Not long after she had joined, the claimant encountered a woman called Dandan Zhu (DD), who had been hired by Dr Zhu in December 2021. There is no dispute that Dr Zhu knew her well, having met her in 2008 when doing his PhD, and that he was friendly with her. Like Dr Zhu and Dr Liu, DD was Chinese.[18]Within a short while, the claimant observed DD behave in what she considered to be an unprofessional way towards various staff members. The claimant was also concerned that DD was invited to a commercial meeting on about 4.1.22, when this did not seem to the claimant to be within DD’s remit. She asked Dr Zhu why DD had been invited, but did not receive what she considered to be a satisfactory response.[19]On 4.1.21, in response to her request for a 1:1 meeting, Dr Zhu explained to her “…I forgot to mention, I think we will not have 1:1 catchup, but I’ll meet do individual team weekly meetings instead…”. He told her “… of course, we can still catch up here and there on top of those weekly meetings….” This is important, because at para 4.2.6(f) LOI it is said that Dr Zhu stopped attending 1:1 meetings with the claimant from January 2022 onwards because of protected disclosures. Of course, 4.1.21 predates PD1.[20]A variety of complaints were made about DD’s behaviour towards some work colleagues,. Ms Scott told the claimant about complaints from Sid Suman (SS) and Liang Jie (LJ), who were respectively Indian and Taiwanese. We accept that Ms Scott told the claimant that DD had either locked LJ in the inventory room, or had insisted he stayed in there to work, on occasion.[21]The claimant asserted in her evidence that Ms Scott told her SS felt DD “held him in contempt” on grounds of his (Indian) nationality.[22]The claimant resolved to raise matters with Dr Zhu. Her evidence was that she and Kunal Kashnap, VP Display & head of Taiwan (KK), with whom she said she discussed the issues, knew it would be a highly contentious meeting because of Dr Zhu’s friendly relationship with DD. PD1/PA1[23]The claimant called a meeting with Dr Zhu, Dr Liu and KK on 10.1.22. She said in her evidence that the meeting was to discuss DD’s behaviour “and our duty of care responsibilities towards staff,” though it is clear from the notes of the meeting taken by the claimant and KK that several other matters were also discussed.[24]What she is alleged to have said at the meeting is set out at LOI paragraph 3.1.1(i)- (ix).[25]Reference is made in the notes to allegations of “bullying and harassment,” “several complaints and several witnesses”, “harm… impact on mental health, several stated they are looking for another job;” “vicarious liability” and “duty of care.” We accept that all those issues were raised, and that the claimant also pointed out to Dr Zhu during the meeting that the team had doubts about DD’s performance and felt she lacked experience.[26]We also accept that the claimant may well have told Dr Zhu that DD had locked or shut LJ in the inventory room.[27]There is also a note under the heading next steps which says “isolate the problem... from next week [DD] works from home until further notice... buffer is established... Formal written warning... establish a [performance management plan].” It is therefore clear the claimant proposed a warning as a disciplinary sanction for what DD had done. So, issues about DD’s allegedly inappropriate conduct were ventilated by the claimant. The primary ‘victims’ of that conduct were said to be LJ and SS.[28]The 10.1.22 meeting lasted for some time. During it, the claimant proposed that she be retitled Chief Operating Officer (COO), so (she said) that DD would report to her. Race as an issue?[29]The claimant’s evidence was that she asserted the rest of the team, other than the SMT, were predominantly white European, and that it looked as though DD was singling out LJ and SS because of their nationalities.[30]However, the notes of the meeting taken by the claimant and KK make no mention of race discrimination, or race as a factor in DD’s behaviour.[31]The claimant’s evidence to us was that use of the word “bullying” in the notes was meant by her as a reference to race discrimination. Even if -which we doubt- that was what the claimant herself thought1, we do not think she articulated or inferred to anyone in the meeting that race was a motivating feature for DD. Leaving aside the fact that we consider the claimant and KK would have spelt the issue out in terms in 1 We note that in her witness statement, she refers at para 50.1 to Liang Jie being “bullied, harassed discriminated against”. For what it is worth, “discriminated against” is not subsumed within “bullied” there. the notes if it had been raised -because it was so important- we also consider it unlikely she would have commended only a ‘formal written warning’ as a sanction, in the face of race-motivated discrimination.[32]Having heard the evidence, we also think that if race was raised as an issue before or at the meeting, it is very likely to also have been mentioned to HR at some point (see further below), and/or in the private WhatsApp or Teams messages C sent/received. For example:(a) The claimant and KK had a dialogue on 5.4.222 [294], during which the claimant referred to having had a “long chat” with LJ, involving “not just the actual bullying he is being subjected to but what he is overhearing between TT and DD… she is undermining everyone…” Race is not mentioned.(b) She and SS were in WhatsApp contact from April 2022 to at least February 2023. There is no mention of race as an issue in any of those messages3.(c) She and Mr Lee exchanged messages in which she was quite candid, and critical about Dr Zhu (see further below). She did not mention race as an issue at any point. None of the deeply critical messages passing between herself and Dr Buckley (see further below) do so, either.[33]Indeed, as the claimant acknowledged in her evidence, the first time there is any paper trail where the claimant mentions race as a factor is in her appeal against dismissal in June 2023.[34]As will be seen below, the claimant was often forthright in her complaints and language, whether ‘behind the scenes’ or directly to Dr Zhu. We think it is highly likely, if the claimant had been made aware of information which suggested race discrimination (e.g. race-related harassment), and if she had alleged (expressly or otherwise) that DD (or anyone else) had contravened the Equality Act 2010, there would be some contemporaneous documentary evidence which said as much. 2 There appear to be no WhatsApp messages between them during 13.11.21 to 5.4.22. 3 It is to be noted that throughout the 7 month period spanning PDs 1-4, it is the claimant’s case that DD continued to bully and harass SS (and LJ), and that they believed it was because of their nationalities. (The claimant’s statement paras 59, 66, 96 & 101 are ‘cut and pasted’, repeating verbatim the ‘race element’ of what she says she disclosed for PD1-PD4.)[35]Neither LJ nor SS themselves made an allegation of race discrimination to the company at any point. (Dr Liu regularly travelled to and from work with LJ, and LJ never raised any such issues with him, either). Of course, the mere absence of a complaint from the victims themselves does not negate the possibility that they were in fact discriminated against, or felt they had been; or, that the claimant was told that was how they felt. But that absence does not assist the claimant’s case. Dr Zhu’s response[36]The claimant asserts in the LOI that in the face of what she told him, Dr Zhu reacted in the extreme way set out at LOI paragraph 4.2.1(a). That was not quite what she said in her evidence before us- and in her witness statement, Dr Zhu’s alleged behaviour is far more downplayed. We accept that Dr Zhu was somewhat sulky and truculent, apparently did not understand why the claimant was raising such issues with him, and was probably in denial about DD’s behaviour to start with. We also accept that he probably said words to the effect of “why do you care?” -because he did not comprehend why the claimant would be concerning herself with what DD had allegedly done. (We do not think he would have made such a dismissive remark if race discrimination had been asserted.)[37]We reject the claim that he screamed or shouted in C’s face (or otherwise), “stood while others present were sat down” (other than to use the whiteboard), or was “angry and agitated thereafter.” We accepted Dr Liu and Dr Zhu’s evidence that his behaviour was more measured. We also think that if Dr Zhu had behaved in the extreme manner alleged, it is likely there would have been some form of paper trail between the claimant and KK, with whom she was linked by WhatsApp from at least November 2021.[38]We note that, on the claimant’s evidence, by the end of the meeting matters closed on an amicable note. .[39]The next day (11.1.22), Dr Zhu invited the claimant and others to meet to discuss a Snap/WaveOptics visit which was taking place on 13.1.22. The claimant’s email in response was cordial, and made no mention of outlandish behaviour on Dr Zhu’s part. PD2/PA2[40]PD2 is said to have taken place on 10.2.22. The context of the alleged disclosure was an invitation to the claimant for a coffee, from Ms Jo Slota-Hewson of IQ Capital. Ms Slota-Hewson was not personally a director of the company, but she attended board meetings on behalf of IQ Capital. Ms Slota-Hewson wanted to talk about the Snap/Wave Optics deal, which had floundered.[41]The claimant says she went into some detail about the “levels of bullying, discrimination and harassment” in particular towards LJ and SS. In her witness statement, she says she “took the opportunity to raise my concerns about the rising level of complaints against DD, which the complainants stated were racially motivated” (underlining added). She alleges she explained “we had a legal duty of care to look after employees’ health and safety, which was being breached, and that [she] had very few people [she] could turn to for help.” She asserts that Ms Slota Hewson “was very uncomfortable with what I was telling her and I felt that she was unsure how to proceed.”[42]We accept the claimant very probably made the assertion that morale was low, that there were personnel issues -probably involving DD’s behaviour- which Dr Zhu was not taking steps to rectify, and that the claimant had concerns about various employees. But we think the claimant has overstated in her evidence how much information she gave Ms Slota-Hewson.[43]We also do not think the claimant made the claim that members of staff were, or believed they were, being badly treated on grounds of race.[44]The claimant asserts in her witness statement that she considered that LJ and SS’s “treatment and singling out by DD amounted to unlawful harassment and discrimination in breach of the Equality Act 2010 relating to their respective Taiwanese and Indian nationalities, and that Dr Zhu’s acts and omissions in relation to failing to remedy DD’s behaviour and condoning/sanctioning it, meant that he was aiding such breaches of the Equality Act 2010, which itself amounted to a breach of the Equality Act 2010”. Even if that is so, we do not accept that she made mention of any of that to Ms Slota-Hewson.[45]We think that there would have been more follow-up, in paperwork or otherwise, if the claimant had raised in any great detail allegations of “bullying, discrimination and harassment” -even more so, had she raised race discrimination as an issue. In particular:(a) See further para 32 above.(b) In early March, the claimant and Ms Slota-Hewson exchanged emails about potentially meeting for coffee/lunch. A date was arranged (15.3.22), which the claimant had to cancel because she needed to visit her mother, who was ill in Ireland.(c) Those emails are not mentioned in the claimant’s witness statement, but the claimant explained in cross examination that the purpose of the meeting -as far as Ms Slota-Hewson was concerned- was to talk about Paragraf, rather than as a follow-up on their previous discussion.(d) It was put to the claimant in cross examination that she did not mention in those emails any of the issues she said she had raised as part of PD2. The claimant’s response was that she was paranoid about her emails were being read, and that she was “trying to find a time to talk” about the issues comprising PD2. But if that is right, we find it curious that the claimant did not find such a time- e.g. seek to reschedule a meeting with Ms Slota-Hewson once she returned from Ireland. We also note there are several emails in the bundle where the claimant makes unguarded criticisms of Dr Zhu- for example, her email to Helen Gilfillan, where (using her personal email) she forwards Mr Quinn’s 8.4.22 email sent to her “as the result of bullying claims from [LJ].”(e) The claimant stated in her witness statement that “a few weeks “ after 10.2.22, she saw Ms Slota-Hewson on site, and “assumed she was following up from our conversation, given that she was very rarely on site.” But if that really was her assumption, we do not understand why she did not communicate thereafter with Ms Slota-Hewson, with a view to finding out the outcome of any ‘follow-up’ -having heard nothing further about it directly from Ms Slota-Hewson.(f) (We note that in her 9.6.13 email appealing her dismissal, the claimant asserts that she told Ms Slota-Newson “of my serious concerns in [Dr Zhu’s] behaviour and the morale issues... this included disclosures about DD’s conduct (including bullying of others and locking [LJ] in the inventory room).” She does not mention race discrimination.)[46]It is the claimant’s case that Ms Slota-Hewson must have raised with Dr Zhu the issues she had brought up with her on 10.2.22 (even though there is no sign that the claimant pressed Ms Slota-Hewson to do so).[47]Dr Zhu was questioned about this in cross examination. He denied Ms Slota-Hewson had said anything to him about any conversation she had on 10.2.22 with the claimant. We accepted his evidence.[48]First and foremost, his evidence was credible on that point. Second, the claimant’s evidence does not suggest that she urged Ms Slota- Hewson to speak with Dr Zhu or anyone else about the matter (or that she asked for/was given any indication by Ms Slota-Hewson that Ms Slota-Hewson had done so). Third, as a general point, it appears to be common ground that the directors of the company were very ‘handsoff4’ as regards the running of the company. This may in part have been because Ms Slota-Hewson was an investor director, with other responsibilities beyond sitting on the company board. This also applied to Mr Gibbs and Mr Hao. So, the set-up did not lend towards the escalation or sharing of concerns.[49]We therefore found that Ms-Slota-Hewson did not mention her conversations with the claimant to Dr Zhu at any material time. Nor did he find out about the subject matter of that conversation from anyone else.[50]The claimant was kept in post on completion of her 6 months’ probation on 1.3.22. We find her retention would have been unlikely if Dr Zhu had ‘taken against’ the claimant for making PD1 (or PD2, if he had known about it).[51]On 7.3.22, she was invited to the 11.3.22 board lunch in Cambridge. Others such as DD and KK were not invited. 4 The claimant puts it rather more strongly in her 5.8.22 message to SS, describing the board as “wholly incompetent”.[52]Following PD2, it appears from the claimant’s 9.6.23 email that in the next couple of months she instigated/led a variety of conversations and initial meetings with several other businesses, namely Facebook/META (16.2.22), ITRI (21.3.22) and Llumina (30.3.22).[53]No business materialised from any of those businesses. In fact, the claimant was not responsible for bringing in any deals or contracts for the company throughout her employment. We noted that the company was reliant on investment revenue in the early years. We also understood -and Dr Zhu conceded as much in cross examinationthat signed contracts can take months or years to materialise. However, we accepted Dr Zhu’s evidence that for the claimant as CCO not to close or approach closure of any deals was, for him, increasingly a matter of concern. She also did not secure any investments.[54]The claimant said in her evidence that she was not included as much as she ought to have been in developing Samsung business post-PD1. This might have been the case; but we did not conclude PD1 was a factor. We accepted Dr Zhu’s evidence that long delays on the part of Samsung meant progress was slow. The claimant was copied into Samsung’s contract terms from the lawyers for her (and others) to review. She was politely asked for her thoughts on the documentation by an email from Dr Zhu dated 3.5.22 (though it is not clear if she responded). She was invited to the legal call with Samsung Display on 18.5.22. And, though the claimant asserts that Dr Zhu “dismissed or ignored my enquiries,” there is nothing within the bundle which shows any such enquiries being made, or ignored/dismissed. The 11.4.22 meeting[55]On 11.4.22, the claimant met with Dr Zhu at her request earlier that day to “deal… immediately… with… a very serious HR issue/s.” What was said by the claimant at the meeting is not alleged to be a protected act or disclosure.[56]Her evidence was that she “discussed the complaints raised to me by SS, LJ and Mr Quinn,” and that she shared Mr Quinn’s email of complaint.[57]Dr Zhu’s evidence was that Mr Quinn’s email was not shared with him at that time. Ms Pellett’s 28.6.23 file note suggests he may be right about this – it says that Dr Zhu was “unaware of this email.” However, if he did receive a copy, it seems his immediate response was not retaliatory towards the claimant.[58]At the meeting, the claimant told Dr Zhu about continued issues with DD’s behaviour. She expressed the wish to address the DD situation. As Dr Zhu put it in his evidence, she said she needed “some authority” in order herself to do so. She may well also have mentioned her desire to take on a COO role. (This was Dr Zhu’s recollectionwhich the claimant did not share.)[59]The meeting was followed up on 12.4.22 by Teams call, billed by the claimant as a “catch up” and “quick debrief session to follow on from yesterday and keep up the momentum.”[60]On either account, it appears Dr Zhu was receptive. On 19.4.22, the claimant sent Dr Zhu an email, which thanks him “for being so brave.” It states ”this is hard but important. I only want what is best for [the company] and I believe we have found a way forward for us all. You have my full support.” The claimant’s evidence was that she and Dr Zhu “had left the [11.4.22] meeting aligned with the plan going forward” and so she messaged him to show her “appreciation for him agreeing to take action and seeking to cement the progress we have seemingly made.”[61]Dr Zhu’s response of the same day was positive: “Haha, thanks Helen. Really appreciate it for helping out in here and in every way you can. And that’s what I have said to other doubters about your move from the P[aragraf] company. Indeed, I almost felt that sometimes I can’t quite manage but luckily that I have all of you guys here with me. I still believe in we are on the same page in every aspect the same way as what had brought two of us together. Of course, there are funny details and noises along the way, but we are all learning and growing together, and these won’t stop us moving forward. Great to have you on my back (so that I don’t fall), well, a hug would also do.” (The claimant duly sent him an emoji hug.)[62]The ‘plan’ which the claimant considers had been “aligned” was not made entirely clear to us. However, it appears to have also been connected to the meeting the claimant then had with DD on 20.4.22 to discuss issues. The claimant told us (and we accept) that at the meeting DD seemed “genuinely remorseful, upset and apologetic” when hearing complaints had been made against her. After that meeting, the claimant sent DD a message saying “sleep well tonight,” with an emoji kiss. The claimant and DD thereafter exchanged kindly and mutually appreciative messages the following day.[63]All this runs somewhat counter to the claimant’s case (in relation to PD1-PD4) that because she raised issues about DD’s conduct, she was snubbed (or worse) by Dr Zhu. When this was put to the claimant in cross examination, her response was that Mr Mike Lee was ‘on the scene;’ that ‘his role was my role,’ that she was unaware of his existence until some time in April 2022. So, she said, Dr Zhu’s warm words “were disingenuous.” We did not accept that allegation of disingenuity. Mr Lee[64]Mr Lee arrived at the company in April 2022, having been approached by Dr Zhu earlier in the year. He was an American, and was well known to Dr Zhu. He was described to Samsung by Dr Zhu on 25.3.22 as “a strategic BD consultant” who would “organise meetings with other big tech companies.” Dr Zhu sent an email to Samsung, copying in the claimant and others on 1.4.22, explaining that Mr Lee and the company would be “working together now officially,” and giving him the title of ‘Head of Strategic Development’ -with the claimant as CCO and Ms Galanis as BD Manager. In his evidence, Dr Zhu explained that Mr Lee’s job was to “open doors to silicon valley big guys.”[65]The claimant said in her evidence that she sent Dr Zhu an email on 4.4.22 asking for Mr Lee’s contact details, but that he did not “not respond to this request.” Strictly speaking, that is right. She sent Dr Zhu an email on 4.4.22, whilst he was on holiday, asking for approval of various travel expenses and -in a postscript- asking for Mr Lee’s details. Dr Zhu responded on 5.4.22 regarding the expenses, but did not deal with her postscript. The claimant in her evidence described this was “ignoring” her request, making her feel “undermined and very uncomfortable.” However, if this was a particular issue for the claimant, we think she could and would have asked for contact details again from Dr Zhu, e.g. when she met him on 12.4.22. She did not suggest that she did so.[66]It is said by the claimant that Mr Lee was brought in to ‘sideline’ her. We do not agree. If Mr Lee was really brought in to replace the claimant, we think she would have been dismissed far earlier on -probably at the end of her probation period. She was on too high a salary, especially for a start-up company, to effectively become on Mr Lee’s arrival a ‘spare part.’ It was very probably the case that, as time went on, Dr Zhu became increasingly reliant on and close to Mr Lee. See further below. But this is not the same as his introducing Mr Lee to the company with a view to sidelining the claimant.[67]The claimant first met with Mr Lee on 20.4.22. There is no paper trail supporting the claimant’s assertion that Mr Lee was rude to her on that occasion. We think that her evidence on point may be overstated. However, we do think it likely Dr Zhu did not discuss with the claimant the arrival of Mr Lee and his role as fully as he could and should have done before Mr Lee began work at the company- hence causing her to feel some insecurity and unease.[68]The claimant complained in her evidence that on 20.4.22 she and “others” were invited to meet with Jade Bird Display, even though she said Dr Zhu was not interested in developing the relationship. This, she said in cross examination, was “not a significant meeting.” We noted, however that one of the ‘others’ invited to the meeting was Mr Lee. An operational role[69]It appears that on several other occasions thereafter, the claimant pressed Dr Zhu to -as she puts it in her statement- allow her to “intervene at the operational level” . For example, on 24.5.22 she had a conversation with Dr Zhu, in which he appears from her message to KK of the same day to have positively responded. Similarly, from her message to KK dated 10.6.22, it appears a further conversation regarding the resignation of another employee (SE) took place on about 10.6.22 between the claimant and Dr Zhu, during which she said she “should take over operations” i.e. we think, perform a COO role. Though she states in the message that Dr Zhu “once again… did not respond”, she was tasked with helping to manage SE’s exit. Her message also says Dr Zhu “now at least” recognised that staff attrition was “a problem.”[70]The claimant was cross examined on this message. It was put to her that she was trying to take over operational issues, rather than driving revenue as per her CCO job. She replied ‘I was having to deal constantly with the HR issues. The issue were still there. People were still leaving. I wanted to prevent people from leaving.’ She accepted she wanted authority over HR matters and operations, and a ‘people’ role as co-CEO.[71]By May 2022, the company had introduced some HR resource. Thus, for example, on 19.5.22 the claimant, Dr Zhu, DD and others were invited to participate in a training session with Helen Gilfillan on 9.6.22 for staff with line management responsibilities. Additional training for items such as ‘managing conflict,’ ‘effective team leadership’ and ‘recruiting staff’ were also to be arranged. The claimant’s case was that the introduction of an HR manager was “triggered by my disclosures.” Even if she is right about that, we think it runs counter to her assertion that because of her disclosures, she was treated less favourably- the introduction of some form of HR resource was surely a positive step, as well as a natural progression.[72]It is plain that beyond June 2022, the claimant continued to push for performing a “people” role herself. See further below. Share grant[73]The claimant was granted shares in the company as from 3.6.22.[74]On 13.7.22, the claimant was sent her share option plan contract for signature. Ms. Scott told her she would arrange for the document to be signed by Dr Zhu, and would email the claimant the final signed version.[75]Dr Zhu executed the claimant’s share option agreement on about 3.8.22- at the same time as execution of the share option agreements for all other eligible employees. The completed option agreement was filed with HMRC on 5.8.22- along with the executed agreements for all other eligible employees.[76]According to the claimant, she did not see a copy signed by everyone until January 2023. Her case was that the delay in providing her with a signed copy was “another way of getting back at me for the disclosures I had made.” She accepted in questioning that she “did not miss out on anything” as a result, but explained “I did not know I had the agreement, as they had not sent it to me.”[77]The claimant asserted in her evidence that, before she left the company, Ms Scott told her that she had received copies of everyone else’s signed agreements but hers. We think that if that really was the case, the claimant would have raised this as a specific concern. She did not do so, even when asking Dr Zhu in November 2022 if he had signed her share option agreement.[78]We note that there was a delay in Dr Buckley receiving his signed options paperwork. The claimant's advice was to “keep nagging [Dr Zhu]… it eventually works.” This does not support a contention that, because she made a protected disclosures, the claimant perceived she was being deliberately kept out of the paperwork. It also shows she (rightly) considered such delays not to be unique to her case.[79]We do not consider that PD1-PD4 was in any way part of the reason the claimant did not receive her share option contract until January 2023. PD3/PA3[80]The day before PD3, on 25.7.22, Dr Zhu sent the claimant a message asking for updates on the commercial pipeline [525]. Her response was a blunt and somewhat disgruntled: “Well we are working with a stack of different partners right now, although I have been excluded from a lot of these conversations GF etc...but I am talking to IMG, IFX, etc...I don't know what is being said to Amazon, Apple etc...so we are working blind but continuing to try and find ways to create a plausible pipeline.” She went on to say (amongst other things) that they had identified about 30 companies “that we could work with”, and that a “sensible conversation” was needed “in what our strategy is”. Dr Zhu asked “can I have a look at the funnel, if there is one?,” to which the claimant responded “and this strategy needs to also include our supply chain… we are now operating in silos… What we are trying to do is understand if this is still valid and then put timelines along it which as I said includes suppliers and collaborations with BP and IC drivers companies that fulfil this message…” She told Dr Zhu that “we are doing this in isolation of what you and Mike are doing ...which makes no sense to me…” Dr Zhu pressed the claimant for details of “potential market and customers” first, which it does not seem she provided at that stage. She did not suggest that she alone was ‘in a silo’, or that she was being excluded from ‘conversations’ because of PD1 or PD2, occurring some 5-6 months beforehand.[81]PD3 took place on 26.7.22, during a conversation in the company’s car park between the claimant, Ms Slota-Newson and Mr Christopher Gibbs (director) after a board meeting. The claimant asserts that she disclosed the various matters set out at para 3.1.3(i)-(vii) of the LOI. She also asserts that Dr Zhu was in his car with another investor director, Rick Hao; that he witnessed the fact of the conversation, which would have been a “very unusual” event, and that it would have made Dr Zhu “suspicious.”[82]We accept the claimant’s evidence that she raised the fact that the work atmosphere was toxic and affecting staff; that staff attrition was an issue, and that morale was poor. (A company chart for 2022 shows there were nearly 30 employees in the business in 2022, including the SMT. Between 6 and 12 employees resigned during the year, although overall numbers increased. The claimant was the only employee who brought or intimated a tribunal claim.) The claimant probably also told them of her proposal that her role changed so that she took the lead over the operational side of the business, to try and ‘stem the tide.’[83]We do not think the claimant alleged that nationality had played a part in any “allegations of bullying and harassment” against DD by LJ or SS, or that she dwelt on any such bullying or harassment allegations. Otherwise, we think it implausible there would have been no follow-up to her from Ms Slota-Newson or Mr Gibbs- or, indeed, no paper trail showing chasers for a response from the claimant. (The claimant herself accepted in cross examination the implausibility of there being no response to such allegations if this was -using her words- “a normal company.” But she said “the board was terrified.” We did not accept that as an explanation. Rather, we think the claimant is overstating what she said to Ms Slota-Newson and Mr Gibbs.)[84]Dr Zhu said that he noticed the car park conversation taking place.5 But we accepted his evidence that he knew nothing of the detail of what was said, and that neither Ms Slota-Newson nor Mr Gibbs gave him any such detail- on the day, or thereafter. It was not put to Dr Zhu in cross examination that seeing the claimant, Ms Slota-Newson 5 Mr Hutcheon records in his submissions that Dr Zhu “acknowledges observing (but on his account not overhearing) [the] conversation.” It was not part of the claimant’s evidence, nor was it put to Dr Zhu, that Dr Zhu in fact heard what was said. and Mr Gibbs in conversation would make Dr Zhu suspicious. And, given the context of the three of them being in the car park after a board meeting, and their respective roles, we do not accept the fact of the conversation would have been ‘suspicious.’[85]The next day, Dr Zhu sent the claimant a Teams message saying he needed her “BD and sales expertise to support [the] next phase of the growth.” The claimant described this in cross examination as a “completely different exchange” with Dr Zhu about being involved in “commercial activities.” She said “it looked like he had been told to involve me” -thus, implicitly, someone must have told him about PD3. But we find the 27.7.22 message is more of a natural follow-on from the exchange on 25.7.22. It also does not make sense as a message to send in response to PD3, if (contrary to our findings) Dr Zhu had in fact been told about it. It is not a ‘detrimental’ retaliatory message; nor does it read as (e.g.) a tacit acknowledgement that positive action needed to be taken in response to the specific complaints of a toxic culture, tolerated/encouraged by Dr Zhu, which the claimant says was part of PD3.[86]Similarly, following a meeting between the claimant and Dr Zhu to “go through the future commercial pipeline together,” in a 29.7.22 message, Dr Zhu encouraged the claimant in positive terms to “gather information for the commercial/pipeline projections.” It was put to the claimant in cross examination that Dr Zhu was giving her “a little nudge,” as she had “not identified potential new sources of revenue.” The claimant asserted that was “patently untrue.” But the messages between her and Dr Zhu of 25.7.22 suggest otherwise.[87]On 29.7.22, Dr Zhu also sent through to the claimant and others details for the weekly catchup he had instigated, asking for a weekly report in advance before the meeting. On 3.8.22, the claimant duly sent Dr Zhu slides/reports for the week on the commercials/marketing “so you can see what we’re thinking so far.”[88]On the same day, Dr Zhu wrote back to the claimant saying “Thanks for the good work on the commercial pipeline and marketing plans/events. As discussed, it would be good to keep searching, adding, polishing and categorising the supply chain partners and customers against different market segments depending on the application areas, as well as please add all the assumptions and different scenarios for the sales/revenue forecast modelling. It would also be great to have a live excel tracking sheet of all the commercial and marketing engagements in terms of ownership and associated status & actions on a weekly basis.” Having seen Dr Zhu give evidence, we doubt he would have sent such ‘business as usual’ messages had he known of PD3, as described by the claimant. PD4/PA4[89]The claimant asserted in her evidence that Mr Hao ‘reached out’ to her the day after PD3, that this cannot have been a coincidence, and -though he did not say so- that it must have been prompted by the fact that he saw her talking with Ms Slota-Newson and Mr Gibbs, or even, “as a hypothetical possibility”, by his having heard about PD3.[90]It is correct that Mr Hao wrote to the claimant on 27.7.22. His email says: “how are you? I was catching a train back to London yesterday, so I haven't got time to catch up with you. I was wondering if you would have any time for a catch up in the coming weeks?” The text suggests that, possibly, it was in fact the claimant who had initiated a request for a catch up following the board meeting. But either way, Mr Hao’s email does not suggest he viewed the need for a catch up to be at all urgent.[91]The claimant’s evidence was that because he contacted her “hours after” she made PD3, it “makes sense that the board contacted him and he contacted me”. We disagree. If he had been told the kind of detail set out at LOI para 3.1.3 -in particular, the fact that specific employees were being singled out by DD and that they believed it was because of their nationalities- we do not think he would send an email in the above terms e.g. asking for a catch up “in the coming weeks”, and with no mention of any of the issues allegedly comprising PD3.[92]On 4.8.22, and following further emails on 3.8.22, the claimant and Mr Hao spoke on the phone. The claimant’s case is that she repeated the detail given in PD3 to him6, adding that the company was ‘failing in its duty of care to employees’, and that employees were ‘turning to her for help’, but she was unable to do anything without the involvement of the directors. 6 She did not suggest in her evidence that she asked Mr Hao whether or not he had heard about PD3 (and if so, when and how). We found that somewhat surprising.[93]Mr Hao was not called by the company as a witness. Dr Zhu said that Mr Hao’s present employer’s usual policy is not to allow attendance. His absence as a witness was unsatisfactory, as was the reason given for it. However, we essentially accepted Dr Zhu’s evidence of his ‘after the event’ discussions with Mr Hao as to what he recalled the claimant had said to Mr Hao. Mr Hao told Dr Zhu he remembered that she made negative comments about DD, but that she said nothing about bullying or harassment and that he did not know the identities of SS or LJ.[94]We think it likely she told Mr Hao that (in summary) the company had a toxic work environment, for which DD was significantly responsible; that morale was low; that employees were ‘turning to her for help,’ and that she was unable to do anything without the involvement of the directors. We think it likely she mentioned the fact of staff attrition. But if she had alleged that LJ and SS were being singled out and that they believed this was “because of their nationalities”, we think that those are details which Mr Hao would have remembered after the event.[95]We accepted Dr Zhu’s evidence that Mr Hao did not report anything material back to him, and that he was unaware of the fact of any 4.8.22 conversation between the claimant and Mr Hao at any material time.[96]We thought his evidence on this point was credible. We also think that if the claimant really had said what she asserts she said to Mr Hao as per the detail set out at para 3.1.4 of the LOI:(a) Mr Hao would have spoken about it with Dr Zhu at the time (and we have found he did not do so); and/or(b) Mr Hao would have reverted to the claimant -or, in default, she would have otherwise asked him to revert to her- and there would be a paper trail to/from the claimant referencing the matter.[97]The next day (5.8.22), the claimant exchanged WhatsApp messages with SS. He told her that another member of staff (James Cole7) was leaving, as “they have managed 7 The claimant did not suggest in her evidence, or in contemporaneous documentation, that Mr Cole had been a victim of DD’s bullying etc. to [piss] people [off] at all level[s]” . Her response was “Good gawd... I am trying really hard with the board... but they are wholly incompetent...” We think that message is consistent with the fact that the claimant mentioned staff attrition to Mr Hao on 4.8.22. It does not suggest any faith on her part that information given to board members by her would be actioned/become the subject of discussion with Dr Zhu.[98]On 8.8.22, the claimant forwarded to Helen Gilfillan the 8.4.22 complaint which Mr Quinn had sent her about DD. In it, Mr Quinn himself describes DD as “stubborn, arrogant, [with] a poor management style.” The claimant did not mention in her email to Ms Gilfillan any of the PDs (or alleged PAs) to date. She explained in her email that Mr Quinn had sent his complaint to her on 8.4.22 “as a result of bullying claims from LJ” (as she puts it). She does not mention race as a factor.[99](The 28.6.23 attendance note of an “informal chat” between Miranda Pallett (HR) and Mr Quinn refers to the fact that the claimant had apparently asked Mr Quinn to email her about his issues with DD “as she wanted to get as much information against DD as possible to remove her from the company. She had mentioned to him that DD had been nasty to three other members of staff and upset them and she wanted to build a case against her.” There is no suggestion that the claimant mentioned race as a motivating factor to Ms Pallett, either.) 1:1s[100]On 10.8.22, the claimant and Dr Zhu had a 1:1, at the claimant’s request. The claimant does not suggest that she raised any of the matters forming part of P3 or PD4 again with Dr Zhu at such a meeting. Pay rise[101]On the same day (10.8.22), Dr Zhu sent Ms Gilfillan an email giving details of the pay rise due to the claimant, as well as forwarding the claimant’s February 2022 appraisal form8. His email states: “Another pay rise that was promised… But I haven’t done much about this one, as what this individual [was] supposed to be doing should be 8 In the appraisal form the claimant sent Dr Zhu on 6.9.22, she comments “I have spent a lot of time in trying to fix staff issues even when this has been met with resistance. I am firm believer in that culture eats strategy every day. We have to concentrate on staff retention.” She also says that “staff issues and the handling of these situations has been very time consuming, hopefully now with an experienced HR person at hand these will be resolved.” commercials, not HR matters.” He explained the link between the pay rise and the funding round. He explained: “our Series A officially closed in Mar 2022. So when should we backdate, [do] you think?”[102]Ms Gilfillan’s 10.8.22 email in response advises: “unfortunately contractually it appears that the pay review has been promised and not subject to any criteria.” She also says “… assuming this is who you were referring to yesterday then suggest you hold the meeting first and explain your expectations, and items on her appraisal that you feel should be HR and not commercial explain that and agree the amendments to her priorities going forward.”[103]The claimant asserted in her evidence that the email demonstrated Dr Zhu was “aware of the action I have taken in relation to HR matters, which in my view can only be in relation to my protected disclosures regarding the mental health and safety of my colleagues” (underlining added)[104]We do not agree with the underlined part of that extract. As set out above, we find that the only PD which Dr Zhu was aware of at this point was what the claimant had said to him over 6 months earlier, on 10.1.22, and when she was still on probation. We do not accept that because of that discussion, Dr Zhu then delayed the implementation of her pay rise. Rather, reference to “HR matters” was (as Dr Zhu saw it) the claimant’s focus in the more recent months on staff retention, and wanting control over ‘operational’ matters, as opposed to generating business. In short, he did not think she was doing the job for which she had been hired.[105]The claimant’s pay rise was duly backdated. Ms Gilfillan’s first draft letter informing the claimant of the increase refers to it being in “recognition of your very good performance and significant productivity.” Dr Zhu pointed out to Ms Gilfillan that the pay rise was in fact “purely as promised and after probation and after investment,” whereupon the letter was corrected before being sent to the claimant. It was put to Dr Zhu that he was thereby “denigrating” the claimant. He disagreed with that assertion, as did we. What he said was factually correct- the pay rise was to do with what had been contractually promised, and not with performance. Moreover, we accept that Dr Zhu would not have thought there had been “significant productivity” on the part of the claimant. See further above.[106]In September 2022, SS left the company. His 23.9.22 email to Dr Zhu, DD and others expresses thanks and states “It’s been a pleasure to work with you… I had a great time here”. This may explain why both Dr Zhu and Dr Liu (in identical words) say in their statements that SS “amicably departed… to pursue new opportunities.” However, in his 9.2.23 WhatsApp message to the claimant, SS spells out that he left the company “because I had problems and wasn’t happy there… I will not wish to come across people like DD and Dr Zhu. And I don’t have good memories of them.” (The WhatsApp messages between himself and the claimant between 5.8.22 and 21.10.22 have all been redacted.)[107]The claimant’s attempts at involvement in ‘people’ matters continued. On 8.9.22, for example, she made herself available via Alexis Scott to staff members on 9.9.22 for a “chat… about anything HR related.” In an email to Mr Lee dated 27.9.22, she talked of (amongst other things) the need for staff retention policies e.g. fair compensation; equity; an attractive work environment; benefits and perks, clear company polices etc. And in an email to Mr Lee dated 13.10.20 -in which she asked for his feedback “before anyone else gets involved9”- she talked about the need for her to have autonomy “in order for this “People” role to work.”[108]Her proposal was that she led “the People part of the business,” and that Dr Zhu led the technical part of it, in “a Co-CEO position.” In cross examination, she said she wanted to “prevent people from leaving,” and for that reason sought authority over HR matters and operations, and a co-CEO role.[109]Mr Lee’s response was (amongst other things ) “…I can see a chief people officer or something that reports to the CEO and attends board meetings. If you still think that can't work or that you will be disempowered or not have the ability to execute... then the problems with this company are so bad that even I can't fix them…. I will ask about 9 The claimant therefore seems sufficiently confident that she could email Mr Lee about matters without Dr Zhu being able to access the correspondence. people leaving so we can get to the bottom of this…” He indicated he did not intend to share the email with Dr Zhu. But we suspect that in due course he shared with Dr Zhu the gist of the conversations he had had with the claimant on topic.[110]In early November, the dialogue between the claimant and Mr Lee continued. Amongst other things, in a 10.11.22 email to Mr Lee she told him: “… what is desperately needed is some leadership around the HR strategy (yes) but even more desperately Operations. Everyone is involved from what I see but there is no oversight. This role you have asked me to do must include operations.. What makes sense is to put [office manager, and as of April 2023 Head of Office Operations] Miranda's team under me and manage the operations and HR properly... if we are really serious about HR retention then this cannot be interfered with by anyone....I am not prepared to take on a role unless I have the empowerment....otherwise this is just a pointless role that will continuously be undermined on a daily basis and just a "scapegoat role" to point at and blame...and we have a lot of that already in this company…”[111]Ms Gilfillan’s 16.11.22 email refers to the fact that the claimant “has been tasked with a Retention Strategy,” as well as plans for an Engagement Survey to “collate relevant data to drive the strategy.” The claimant duly shared this email with Mr Lee, and on 21.11.22 told him she had “engaged a company to start with company wide survey.” On 18.11.22 she reminded him “I want to keep things moving, and for me personally I want clarity of my role before we break up for holidays. I have a call this afternoon to kick off an engagement survey... morale is low here and I want to be able to get some good news to the team before Xmas.” He responded saying (amongst other things) “I haven’t responded to trying to sort out your role before end of year. I think everything is static now until we can get the company funded for the next round”. She replied on 21.11.23 “… that effectively means I can do nothing for the team which does bother me. But I will go ahead and get the survey done in the meanwhile.”[112]On 24.11.23, she emailed Dr Zhu saying she needed to “understand if we are even interested in a hiring and retention strategy or am I just wasting my time?”[113]So, her emails at this time with Mr Lee and Dr Zhu were blunt. She did not pull her punches as regards articulating what she perceived to be deficiencies with staff retention, and with her wish to perform a new role. But she at no point repeated to Mr Lee or Dr Zhu the subject matter which (on her case) comprised P2-P4 (or any alleged PA).[114]She tried to obtain authority from Dr Zhu to sign off on getting the survey done. His 28.11.22 response was “I suggest we review your strategy first at the senior management level, whilst we make the move, and we can implement new things at the new site, let's keep everybody busy and happy and excited about the new site. No need to take action while everyone is busy and making [the] new site ready and beautiful looking etc… And your value is going to be appreciated for corporate and people strategies and high level directions for us… surely you don't need to do these hands on work yourself. And your time will be much better utilised for more important matters.” So, it is fair to say he did not show great interest in prioritising the survey. Again, his focus seems to have been on “commercials, not HR matters.” NED work[115]The claimant was also interested in doing work outside of the company. On 5.10.22 she tried to get Dr Zhu to agree to her doing a non-executive director (NED) role. He expressed some reservations, but did not give her a definitive answer. She sent an email to Ms Slota-Newson saying that she had “asked about taking up a NED role, but now it seems to be a problem for [Dr Zhu]... could we have a chat about this please?.” The response was “… definitely happy to chat. Although it's out of our sphere to make decisions on outside responsibilities…” She pressed Dr Zhu directly again on the point by a Teams message dated 20.2.23 and also offered to work part time for the company. She wrote again on the topic on 21.2.23- see further below.[116]The claimant said in cross examination that she made such an offer was because she was “exhausted and exasperated by the lack of support;” she also described Dr Zhu’s response to her request as “extraordinarily dismissive.” We think that is an unfair description. What he said was: “I think it's best to postpone this NED conversation until the company's series B investment is sorted out and fixed. Otherwise it's too much to handle and I need to make sure [of] the company's direction and progression whilst keeping everything adapted to that main objective…” Her response to him was short and to the point: “when you are back next week we will talk about the NED role and my role at Protech… thank you.” We do not think such messages assisted their relationship, or Dr Zhu’s confidence in her. NDAs[117]Non-disclosure agreements involved a commitment to keep confidential the IP, business ‘know-how’ etc which the company and prospective customers possessed and could then share with each other for the mutual purpose of ascertaining if there was potential for business. Sign off by Dr Zhu was required for the claimant to enter into an NDA. It is the claimant’s case, as set out at LOI para 4.2.7, that after September 2022 the company did not enter into any NDAs, which limited her ability to engage with potential partners or properly to discharge her duties.[118]In fact, on 9.8.22 the claimant asked Dr Zhu to (as she put it) “do the honours” and sign an NDA, which he duly did the following day -shortly after PD3 and PD4. The claimant's evidence was that Dr Zhu signed it quickly “because he had been told to involve me in commercial discussions,” and that this was “a small window where he allowed me to do my job.” Even if she is right about this, being told ‘to involve me in commercial discussions’ is not the same as being told about PDs- none of which involved the alleged exclusion of the claimant from commercial discussions. We also think it highly unlikely, if Dr Zhu had been told about PD3 or PD4, that this would be accompanied by an instruction (presumably from Ms Slota-Newson, Mr Gibbs and/or Mr Hao) simply to ‘involve the claimant in commercial discussions’.[119]Similarly, on 17.10.22 the claimant sent Dr Zhu an NDA for ARM, a ‘household name,’ which he again signed off.[120]Dr Zhu explained in his evidence why he declined to sign two other NDAs- for flexEnable in November 2022, and for ReMarkable in late April and early May 2023. In so doing, he took us to the contemporaneous documentation in which he had said he needed more detail about both companies’ suitability before entering an NDA (which involved at least some measure of commercial risk), and that high level exploration ought to be enough to start with. We do think some of his messages regarding ReMarkable were rather churlish (e.g. “don't i deserve to know something more before i sign NDA?”). But we do not accept the claimant’s assertion that reticence or churlishness on his part, or non-signature of the NDAs, was in any way connected with any PD. This is because we accepted Dr Zhu’s evidence on point, and because that evidence accords with the timeline. Even on the claimant’s case, P4 (which Dr Zhu did not know about) took place months beforehand, after which Dr Zhu had signed off two other NDAs. And Dr Zhu was not aware of PD5 at the relevant time, either. See below.[121]In fact, by the time of the ReMarkable interchange, other matters may also have been swaying Dr Zhu against the claimant. The Amazon meeting[122]On 9.2.23, Dr Zhu did a presentation for Amazon. In it, the claimant was described on one slide as head or chief of people, rather than as CCO. Dr Zhu in his evidence stated this was left on the slide in error, and that the “initial draft organisational chart” showed some changes the company had considered making, as investors were asking questions about HR capacity at the company.[123]The claimant wrote to him after the meeting, saying “… think we better have a wee chat before I go home today, as I just found out in the Amazon meeting that my job function has completely changed and no one informed me... though it seems like everyone else knew.”[124]We expect the slide content was an attempt by Dr Zhu to present the company as properly resourced with a ‘head of people’ facility, and (as Dr Zhu saw it) aligned with the claimant’s own repeated expression of the wish to take up a ‘people’ role. Sensibly, the claimant ought to have been involved in discussions and agreement before she was presented as anything other than a CCO to third parties (even though her role was not, in fact, changed at that point). We can well understand how she may have been confused or concerned by the presentation- which may have appeared to show a unilateral change to her role. But we do not think that PD1-PD4 had anything to do with the content of the slide.[125]The claimant and Dr Zhu spoke later that day. In her statement, the claimant asserted that Dr Zhu refused to discuss matters, “got very agitated and red in the face and raised his voice,” saying “he was the CEO and could do what he wished.” The emails she and Dr Zhu exchanged after that meeting are not consistent with this account. Amongst other things, she thanks him “for listening to me today… I want this to be a huge success just like you”; he thanks her “for the understanding”; she says she has “a great team… unbeatable”, she compliments him on his “brilliance” at fund raising, and says she will “make sure we are backing that”, asking him to ”trust me”.[126]The claimant in cross examination asserted that she was “trying to keep him calm and make the business work.” However, we think these messages strongly suggest the claimant has overstated Dr Zhu’s reaction to being questioned about the presentation. She could be forthright in her communications with Dr Zhu when she chose to be- e.g. see further below. If he had behaved as alleged, we think she would have said so in other emails etc. It may well have been the case that he initially became somewhat flustered or impatient at being challenged by the claimant. But we do not think any reaction on his part that day had anything to do with any protected disclosure. Warren East[127]Mr East was the former CEO of Rolls Ryce and ARM, and the claimant called on her connection with him to get him to ‘cut the ribbon’ at the company’s opening event for a new facility on 16.2.23. The event appears to have been a success.[128]After the event, on 21.2.23 Dr Zhu wrote to Mr East (copying the claimant in), thanking him for joining them at it. He asked if Mr East would like to meet for coffee or lunch the following week. The next day, the claimant wrote to Dr Zhu saying “I see that you have reached out to Warren... please keep me in the loop, because he will anyway.” Dr Zhu told us that he found her communication somewhat “controlling,” because “I did not need to report to her.”[129]One minute later, the claimant messaged him again saying “Also you have not responded to my part time initiative... although it is clear that you spoke to Mike Lee already... so let's have an upfront conversation about this... OK?”[130]Mr East then attended the company offices on 28.4.23, to meet with Dr Zhu. The claimant was not forewarned of the meeting. We accepted Dr Zhu’s evidence that it was not necessary to tell the claimant about it, or invite her to it. It might have been polite or politic to do so, given her connection with Mr East. But it was not mandatory - and, in our view, any non-inclusion was unconnected to any PD.[131]Dr Zhu had been on a trip to Beijing, and was running late. The claimant was told that Mr East was sitting in reception, and she went to meet him. She walked him to Dr Zhu’s office. The claimant’s evidence was that Ms Pallett (by this time, Head of Office Operations) tried to get her junior to intercept the claimant “to stop me from talking to him.” She said she felt Dr Zhu was responsible for “clearly instructing people to undermine and humiliate me” and that this was “another detriment for my disclosures.”[132]When Dr Zhu arrived (late), she claimed he “looked red in the face and furious that I was speaking with Warren and kept talking over me.” A little later that day, she sent Dr Zhu a message asking “so how did that go with Warren?” (Apparently, she did not receive a response.) Despite the other forthright messages she had sent to Dr Zhu at about this time, she did not raise any issues about his conduct that day. We consider that fact to be inconsistent with her account of his behaviour to us.[133]We accepted Dr Zhu’s evidence that he was running late and was therefore somewhat flustered and embarrassed when he arrived. We accepted his evidence that he did not give any instructions for the claimant to be waylaid, whilst he was en route. We also think it unlikely he would behave in the manner alleged in front of Mr East, whom he knew to be a contact of the claimant’s. And, that if he had done so, the claimant would have said so in her post-meeting emails.[134]It is in our view also a wholly unnatural strain to try and forge a link between PD1-PD4 and the behaviour described by the claimant in any event- particularly given that Mr East had attended the 16.2.23 event without incident (e.g. without any attempts by Dr Zhu at a ‘land grab’). We do not think there was any such link. Dr Zhu might have been slightly riled upon his late arrival by what he perceived as the claimant’s overpossessiveness towards Mr East. That would have been a sign of their increasingly dysfunctional relationship. But it does not support the claimant’s ‘whistleblowing’ claim. A catch up with Mr Gibbs[135]In early April 2023, the claimant spoke with Mr Gibbs. She said in her evidence that he contacted her, though his 3.4.23 email thanks her for “reaching out.” In that email, he reports “there are no alarm bells to raise to be clear. I've had to stir the pot somewhat but the news is very decent. However, I'm keen to get your perspective. Really trying to help the company and I've got folks’ attention right now.” In her statement, she says “I was relieved by this, as it suggested that what I intended to tell him (as described below and comprising my fifth protected disclosure) would initiate action.” That evidence does not make sense, because (as explained below) she was not aware of the basis for making PD5 until later in April. She therefore cannot (as explained below) have asserted an “unlawful misrepresentation” etc by Mr Lee on 4.4.24.[136]It is also unclear why, if she had made PD3 to Mr Gibbs but had heard nothing from him about it in the following 9 months, she apparently did not raise the matters comprising PD3 with him again at that time.[137]In his next 4.4.23 email, Mr Gibbs notes that the claimant had been “trying to hold the team together as best as [she] can,” and that it has “taken a lot of bandwidth.” He asks her how involved she was in the sales cycle, and queries whether or not Dr Zhu has “gone ‘one man band’ on that too.” This strongly suggests that others perceived Dr Zhu to often go off on his own with business leads etc.[138]The claimant's email response was to explain that various deals in the pipeline had been assigned to either Mr Lee, KK or Dr Buckley, and that Dr Zhu had “deliberately cut me off” from those conversations. She does not assert to him that her exclusion had anything to do with any protected disclosure (or protected act). We think she would have done so, had she considered there was a connection. Meetings with Stratacache etc[139]On 14.4.23, Dr Buckley and others had an on site meeting planned with Stratacache. Dr Zhu did not include the claimant as an attendee. Dr Buckley invited the claimant to attend, as well. Dr Buckley, told us, and we accept, that Mr Lee expressed his displeasure at this, as did Dr Zhu. The meeting was then cancelled by Dr Zhu on 12.4.23, rescheduled by Mr Lee (again) for 14.4.23, and the claimant was not then invited. We accept that Mr Lee excluded the claimant, with the knowledge if not the involvement of Dr Zhu.[140]The claimant’s case is that she was also excluded from meetings with potential partners, such as Kopin, Philips, Vuzix, Meta and Amazon “which I had always attended and been invited to before [PD1]”. We were given limited paperwork by way of calendars etc to show how many meetings took place (e.g. work diary calendars, which the company did not disclose).[141]It is clear that the claimant did attend at least some meetings with such entities. For example, she was invited to be at a meeting with Kopin on 4.8.22 (because Ellie Galanis added her as an attendee). But this was earlier in the chronology.[142]As regards Phillips, the claimant referred in her evidence to a WhatsApp exchange with Dr Buckley on 5.5.23. There, he says that he was told to invite the claimant to meetings “when there’s a licencing deal to be negotiated,” even though he was told “we don’t want to do licencing.” He also mentions a meeting that had just taken place with Phillips. The claimant says in her statement “I was really upset when I heard this, because it further validated what I felt: that I was being deliberately excluded from key meetings and I was positive it was to do with my disclosures” (underlining added).[143]Though she is very blunt and candid in her messages with Dr Buckley (“now we are pretending not to be Chinese”; “what an a**” (Mr Lee) etc) on 5.5.23, and generally, she makes no mention to Dr Buckley- in those 5.5.23 exchanges or at any point- of any link between any of her alleged disclosures and any exclusion from meetings (or any other detriment). We find this surprising, if -as she asserts - she was “positive” at the time. PD5[144]PD5 involved a capitalisation (CAP) table which showed Mr Lee to have personally invested £2.5m in the company after the Series A fund raising in February 2022. This was incorrect, because the individual who had invested that sum was in fact a Ms Wei Li.[145]Mr Lee had sent Dr Buckley a CAP table in October 2022. At the time, Dr Buckley was deciding whether or not to join the company. We accept that Dr Buckley viewed Mr Lee as a key player and investor in the company’s management team, and that the CAP table was intended to and did act as an incentive for him to join, because it appeared to show that Mr Lee was ‘putting his money where his mouth was.’[146]The claimant in her witness statement asserts that as of 4.4.23, she and Dr Buckley understood that Mr Lee had, via the CAP table, falsely misrepresented that he had invested in the company. Hence, she claims that on 4.4.23 she told Mr Gibbs about Mr Lee’s “lies”, and that he had “statutory obligations” in his position as a director “in relation to a duty of care towards staff”, including her. She also claims she told him that current and future investors were presumably not aware of Mr Lee’s “misrepresentation and the wider public.”[147]We do not accept that account of the 4.4.23 conversation. It is clear from WhatsApp messages between the claimant and Dr Buckley that as of 4.4.23, neither of them were in a position to make any such allegations against Mr Lee. References to a “duty of care” and “statutory obligations” etc are therefore very unlikely to have occurred. It was only by mid April 2023 that they started to question whether or not Mr Lee was “full of shit” as regards his apparent investment. By 24.4.23, Dr Buckley was saying “I can’t see any other scenario than he is touting round a deck [i.e. CAP table] with an outright lie in it,” to which the claimant responded “this is good and useful ammo.” Dr Buckley described himself as “just here for the epic meltdown,” which the claimant said had been “quite a while coming.” Her assessment was “he is spent,” to which the response was “he is after what we found out.” There is a quantity of relish in the messages.[148]Nowhere in them is it suggested that the company -as opposed to Mr Lee- was or may be misusing the CAP table, or that anyone else apart from Dr Buckley had or might have been misled. In cross examination, she accepted there was no evidence that the CAP table had been shown to anyone else outside the company.[149]We agree with the respondents’ submissions that the claimant, rather than being “concerned about fraud or investors being misled”, saw this information as “ammunition which she could leverage in her internal power struggle with Mr. Lee.” When asked in cross examination how her “good and useful ammo” comment squared with the pleaded contention that she made a disclosure in the public interest, her response was that Mr Lee was “seriously dangerous.”[150]There are no messages between the claimant and Dr Buckley between 24.4.23 and 3.5.23. (There may have been some Teams messages, but on 3.5.23 the claimant told Dr Buckley she had deleted her Teams messages, and invited him to do likewise- his response was “done.”)[151]On 26.4.23, the claimant spoke with Mr Gibbs (on which date, and until 28.4.23, Dr Zhu was on his trip to Beijing). What she alleges she said to him is set out at LOI para 3.1.5. Amongst other things, the LOI relates that she told Mr Gibbs the CAP table misrepresented Mr Lee’s position as a significant investor, and that she was concerned the company’s reliance on an “incorrect” CAP table amounted to fraud. (The LOI records her raising other issues at this time - e.g. concerns about information given to Amazon on 9.2.23, and that Mr Lee was potentially conflicted by working for the company and Vuzix when the company was trying to do a deal with Vuzix. However, she did not lead any evidence that such things were mentioned by her on 26.4.23.)[152]We accept that the claimant raised with Mr Gibbs the apparent inaccuracy of the CAP table Mr Lee had provided. Also, that she told him that the table was misleading. However, we were not persuaded the claimant asserted to Mr Gibbs that the company’s “reliance on an incorrect CAP table amounted to fraud.” As set out above, her focus appears to have been on Mr Lee and his misdemeanours, rather than the company’s.[153]The claimant’s evidence was that Mr Gibbs promised to look into the matter. She said she never heard back from him, which “did not particularly surprise me because of my previous experience with him.” She did not suggest she chased him up on the point, either.[154]Dr Zhu’s evidence on why the CAP table had been changed by Mr Lee was not satisfactory. He said in his statement that Mr Lee “had been amending his version of the CAP table to reflect a potential buyback of existing shares and had used Wei Lei’s shares as an example.” We did not find this a plausible explanation- particularly in the absence of Mr Lee to explain the matter himself. Dr Zhu’s evidence on point was either somewhat naïve or disingenuous. On the face of it at least, it seems to us the most likely reason for Mr Lee doing what he was doing was to entice Dr Buckley into joining the company. If that is right, it was - as put by Mr Cook in his closing submissions - “misleading and unethical.”[155]It may possibly have been that Dr Zhu was complicit in this deception. However, we accepted Dr Zhu’s evidence that he did not know until June 2023 about Mr Lee’s reworking of the draft CAP table, when Dr Buckley told him about it. More to the point, we accepted Dr Zhu’s evidence that Mr Gibbs did not say anything to him at the time about his conversation with the claimant regarding the CAP table.[156]There is also a tension between the claimant’s evidence that she was unsurprised to hear nothing back from Mr Gibbs and did not chase him on point, and her case that Mr Gibbs nevertheless must have passed on what she had said to Dr Zhu (even though she did not herself speak directly to Dr Zhu about it).[157]We consider Dr Zhu’s WhatsApp messages with Dr Buckley of June 2023 (“thanks and I didn’t know about this. I'll have a word with Mike on this, and make sure we don't send sensitive info through him and he will not circulate anything that is sensitive without company consent”) corroborate Dr Zhu’s denial of knowledge. So, to a limited extent, may the conversation Dr Buckley had with Mr Hao a couple of days later.[158]Dr Buckley spoke with Mr Hao on 28.4.23, and Mr Hao expressed his surprise that the CAP table had been modified when Dr Buckley told him about it. Dr Buckley thought it had “the potential to amount to fraud,” and was “concerned about who else Mr. Lee might have misrepresented to” (underlining added). Mr Hao told him he would look into matters. He also apparently told Dr Buckey he should build a relationship with Dr Zhu, and that Dr Zhu would not be happy if he knew they were having the conversation. It therefore seems Mr Hao was unaware of the issue until Dr Buckey told him about it, and that (as far as Mr Hao was concerned) Dr Zhu did not already know about it- e.g. because Mr Gibbs had told him as a result of his conversation with the claimant.[159]Dr Buckley confirmed in his evidence that he was not detrimentally treated in any way by reason of his comments on the CAP table. The 6.5.23 WhatsApp messages[160]On 6.5.23 Dr Zhu and Mr Lee exchanged WhatsApp messages. In them, Mr. Lee was very derogatory about the claimant. He said that she had been saying “discrimination things about Chinese.” He told Dr Zhu “truly that is not how people really are. She is just one of those crazy old white people10. And I think she drinks too much. Every time I see her it's like she has a hangover and smells.” Dr Zhu’s response was to say “understood, it's OK, I'm rigid enough. Let's regroup and move on and I'll get someone to get rid of her.” Mr Lee's response was to say “the HSBC guy says he thinks she is crazy. Can you imagine Helen has been talking shit to our BANKER!!.”[161]This interchange strongly suggests that Mr Lee had been working hard on undermining the claimant to Dr Zhu, and that by 6.5.23 her fate at the company was sealed as far as Dr Zhu was concerned. This is so whether or not “I’ll get someone to get rid of her” refers to removing the claimant from post, or -we think more likely- from a specific project with which she was engaged at the time (e.g. her USA trip to Display Week). There is nothing to suggest, and nor is it the claimant’s case, that Mr Lee was motivated by any PD in denigrating the claimant and doing his best to turn Dr Zhu against her.[162]We do not approve of the very unpleasant and unprofessional content of Mr Lee’s message. But we do not think it materially assists the claimant’s ‘whistleblowing’ case. PD6[163]At 2.32pm on10.5.23, the claimant sent Dr Buckley a draft press release with the subject line “have a wee read”. Earlier iterations had been attached to emails passing between KK, Dr Zhu, the claimant, Mr Chinnock and others (but not Dr Buckley) over the previous couple of days. The claimant said she had been deliberately excluded from the draft in question. But this seems somewhat unlikely, given that she was included in earlier versions. In cross examination, the claimant accepted that “I could not say if what I was sent was valid or not”- so, she sent it to Dr Buckley to check or validate it.[164]No other text was included from her, though before and after that email (between 2.27pm and about 6pm) they exchanged WhatsApp messages, in which Dr Buckley himself expressed strong views about the inaccuracy of the draft. Dr Buckley then 10 Dr Zhu’s response to this in cross examination was that he could not “judge white people commenting on white people”. exchanged various emails with Dr Zhu, Mr Lee and others, in which he made various observations as to where editing of the draft was needed. Mr Lee did likewise. Dr Buckley expressed none of the outrage or colourful language he had used ‘behind the scenes.’ Indeed, it was Mr Lee who opined that “a general rewrite is in order,” and who proposed toning down “the hyperbole.”[165]There is nothing in the email chain to suggest that Dr Zhu (or anyone else) took umbrage at Dr Buckley’s input. Indeed, as set out above, Mr Lee also made (stronger) criticisms of the wording on the draft. Nor is there anything in the chain to suggest that Dr Zhu would think that the claimant had sent the draft to Dr Buckey -until the claimant told him she had done so in her 12.5.23 email (which was written after the decision to dismiss her had been made) “so that he could see it before he saw it go live at Display Week.”[166]Dr Buckley confirmed he was not detrimentally treated in any way by reason of his comments on the draft press release.[167]The claimant asserts in her witness statement that the document “would amount to fraud if it was published. I felt compelled to disclose it to Ed, as I believed strongly that I had a duty to flag these concerns out public interest.” We think that greatly overstates the position. We agree with the respondents’ submission that “this was in essence a technical disagreement about the content of an early draft of a press release which was never released in this form.” The claimant’s dismissal[168]The following day (11.5.23), there was a Zoom board meeting attended by Dr Zhu, Mr Liu, and -by Zoom- Mr Hao, Mr Gibbs, Arthur Chen and Ed Stacy (of IQ Capital Partners, who had replaced Ms Slota-Newson). The meta data shows that the board pack for the meeting was created and last modified on the morning of 10.5.23.[169]At the meeting, as per the text in the board pack, Dr Zhu recommended that the claimant’s employment be terminated with effect from 17.5.23. He reported that her performance “has continued to fall below the standard expected of the role of [CCO].” It was said in the minutes that her “skill set was not aligned with the specific needs for business development, sales and product/technical marketing that we require at this stage and in the future particularly as Helen failed to hit targets in all those respects to date.”[170]Mr Stacy is recorded as saying the claimant had a “similar track record of failing to hit targets in her other previous startup involvement”. The claimant confirmed in her evidence that Mr Stacy had sat on the board of Paragraf. So, his opinion ought to have had some authority (even if it was in fact wrong), as was intimated by Dr Liu in his evidence.[171]The board duly approved her dismissal. We accepted the respondents’ evidence that there was no discussion about any of the PDs during the meeting.[172]Later that day, the claimant says she had a conversation with KK, during which (amongst other things) KK told her that Dr Zhu had told him that he was “under severe pressure from the Board because of the things I told them (i.e. in my protected disclosures).”[173]The interchange was not put to Dr Zhu or the claimant in cross examination. But it is not consistent with some of the other content in the claimant’s statement. She says: “… I did hear subsequently from Pete Hutton that the first time the Board were aware of my dismissal is when they saw the minutes that were distributed sometime after the meeting11. … Tongtong operated without any real oversight and no-one from the Board seemed able to or want to challenge him.. this Board was unusual , they were totally hands-off and with no Chair in place there was little or no governance…” This extract (and the evidence we saw as set out above) does not suggest the Board were disposed to or did put “severe pressure” on Dr Zhu..[174]We also note that in her 15.5.23 WhatsApp messages with KK, after she told him “I have just been fired,” the claimant said that the dismissal was “very much Mike Lee's influence.” When KK said to her “I kinda still in shock… don't know what triggered this,” her response was “Mike Lee.” 11 She suggested in questions from the tribunal that Mr Hutton probably got this information from Mr Gibbs. But Mr Gibbs is named as an attendee at the Board meeting, and the metadata for the board pack shows it was produced the day before (10.5.23). We also saw the 11.5.23 Zoom link which was circulated for the meeting. So, we think it very likely the meeting did take place on 11.5.23, with the persons listed as attendees.[175]In so far as the claimant means to suggest that KK told her Dr Zhu said or suggested the Board were pressuring Dr Zhu to sack her (or not sack her) because of “things I had told them,” we therefore reject that evidence.[176]Dr Zhu dismissed the claimant with a PILON on 17.5.23. The written notice of termination repeats the wording in the minutes- it states: “after careful consideration, we have determined that your skill set is not aligned with the specific needs for business development, sales and product/technical marketing that we require at this stage and in the future particularly as you have failed to hit targets in all these respects to date…”[177]Dr Zhu was cross examined as to the meaning of “targets.” He explained that ‘target’ was not by reference to a particular KPI. He explained that somebody receiving the benefits the claimant received, and acting as CCO, should be doing all things commercial; that if there was a potential pipeline, she should do some work to justify why an NDA was necessary, and that she should stick to the CCO role, rather than thinking about doing something else.[178]Dr Buckley in his evidence said that he felt the claimant had been removed “because she challenged Dr Zhu and the way Porotech was operating and Dr Zhu did not like any version of events that conflicted with his narrative. Helen added years of experience gained in working in respected companies, following processes and procedures and the company did not work in that way. Helen had done the work for Display Week [taking place in May 2023] and therefore I could imagine Dr Zhu considering that she was expendable”. He did not attribute the dismissal to any of the PDs.[179]On the evening of 17.5.23, he and the claimant exchanged messages about her dismissal. They discussed the fact she was not set any targets, and she explained “it has become untenable and with Mike doing a hatchet job… hideous work environment.” So, once again, Mr Lee was seen as the instigator- albeit it was not suggested that he knew anything about any PD.[180]In cross examination, it was put to the claimant that she did not mention any of the PDs as causative (or otherwise). She said she interpreted “hatchet job” as being about disclosures. When she was asked if she said as much to Dr Buckey, she said she did not- that it was a very distressing time, and Mr Lee was very unpleasant.[181]We did not accept that evidence. We have no doubt the claimant found her dismissal very distressful. But we think it would be surprising not to mention to Dr Buckley, who was her confidante and ally, her belief that the PDs had caused her to be dismissed with Dr Zhu “doing a hatchet job”, if -as she asserted in her evidence- she held that belief at the time. (The same applies to her communications with KK. See further above.)[182]Dr Buckley and Mr Lee had also exchanged WhatsApp messages about the dismissal, on the morning of 17.5.23. Dr Buckley asked Mr Lee if he had “heard about Helen?” Mr Lee’s response was “planned since January… Then when you told me about potential lawsuits for bullying in the office… that was it.” Dr Buckley’s 18.5.23 ‘notes to self’ explain that he had “absolutely no idea how the two things are connected.” He said the same thing in cross examination. But his 17.5.23 ‘notes to self’ record that on that day he outlined his concerns to Mr. Lee about Dr Zhu’s “leadership and the likely end for this company, which will be to end up with lawsuits due to the continued bad behaviour.” 17.5.23 postdates the 11.5.23 board meeting. So, nothing Dr Buckley had said on 17.5.23 could have prompted the decision to dismiss. But even if Mr Lee was referring to something Dr Buckley had said prior to 11.5.23, Dr Buckley did not suggest that he was aware of PD1-PD5 -or of any allegations of race discrimination by the claimant- at any material time. The claimant’s appeal[183]Dr Zhu’s Disciplinary and Grievance Policy provides for a right of appeal, but the Policy also states that its procedures will not be followed “in the event you have less than two years’ service with the company.” The claimant was employed for less than 2 years as at the EDT.[184]On 9.6.23, the claimant appealed her dismissal, by which time she had taken legal advice. In her appeal letter, she asserts for the first time that she had been detrimentally treated and dismissed for “whistleblowing.” She sets out a “non-exhaustive list of some of the disclosures I have made.” These comprised PDs1 & 2 (albeit she does not mention race discrimination as a factor in DD’s behaviour), PD3 (albeit she said that DD “was responsible for targeted racial discrimination towards 2 members of staff12”) and PD5.[185]On 16.6.23, Ms Mallett wrote to confirm “there is no formal write of appeal in these circumstances.” Dr Zhu told us, and we accepted, that Ms Mallett had taken over dealing with the process at that time. RELEVANT LEGAL PRINCIPLES[186]The relevant legal principles are set out in counsels’ closing submissions. There was very little difference between them, save in emphasis. We have gratefully adopted below (sometimes, verbatim) various passages of the summaries made by each counsel in setting out our understanding of the material law. Victimisation- EqA claim[187]Section 27(1)(a) EqA 2010 provides that victimisation occurs if a person is subjected to a detriment by “A” because they do “a protected act”. Section 27(2) EqA defines protected act as:(a) bringing proceedings under EqA;(b) giving evidence or information in connection with proceedings under EqA;(c) doing any other thing for the purposes of or in connection with EqA; or(d) making an allegation (whether or not express) that A or another person has contravened EqA. ‘Making an allegation’[188]To fall within the last of these provisions, it is necessary only that the person has asserted facts capable of amounting in law to an act of unlawful discrimination under EqA 2010. See Waters v Metropolitan Police [1997] ICR 1073.[189]It is clear from the wording of s.27(2)(d) that it is not necessary for a person to specifically reference EqA in order to do a protected act. Whether what was written or 12 Cf the claimant’s witness statement, where she says that LJ and SS “thought they were being singled out because of their nationalities”. LOI para 3.1.3(v) is in similar terms. said orally amounts to an allegation that a person has contravened EqA is context dependent.[190]However, it must be clear, at least impliedly, that the person is alleging a contravention of EqA. A general allegation of “discrimination,” “harassment” or similar may not suffice, as people often use these terms in a colloquial rather than a legal sense. Context will be crucial. By way of example:(a) In Durrani v London Borough of Ealing UKEAT/0454/12 the claimant alleged that he had been subjected to detriment for having complained to his employer about being “discriminated against”. The ET found that the Claimant had used that term to general unfairness rather than to detrimental treatment on the grounds of race; a conclusion which was upheld by the EAT.(b) In Fullah v Medical Research Council and anor UKEAT/0586/12, the claimant alleged that he had been subjected to bullying, harassment, discrimination and victimisation over a number of years but did not mention race or any other protected characteristic. Having considered the context, the Tribunal found that this was not an allegation of contravention of the EqA, a conclusion which was upheld by the EAT.(c) In Chalmers v Airpoint Ltd UKEATS/0031/19 the Claimant, who was a business support and HR manager, alleged in a written grievance that her employer’s actions “may be discriminatory”. The ET found this was not a protected act. In upholding the ET’s decision, the EAT observed that there was no reference to sex or any other protected characteristic and that use of the word “may” could signify doubt or uncertainty. Furthermore, the Claimant’s background in HR made it more likely that, had she specifically been complaining of sex discrimination contrary to the EqA, she would have referenced the protected characteristic. Detriment[191]The concept of detriment is to be given a wide interpretation and is satisfied wherever the treatment is of such a kind that a reasonable worker would or might take the view in all the circumstances that it was to their detriment: Warburton v Chief Constable of Northamptonshire Police [2022] ICR 925 at [49]-[51]. Causation[192]It is not necessary for the claimant to show that the protected act is the sole or main reason for the detrimental treatment. As long as the protected act had a “significant influence” or “more than trivial influence” on the treatment, victimisation is made out: see e.g. Nagarajan v London Regional Transport [1999] IRLR 572 at [19]. In relation to this issue, it is important to recall that discriminatory motivations are often unconscious: see Nagarajan at [17]. Instructing/causing/aiding[193]Pursuant to s. 10(1) EqA 2010, an employee or agent of the employer is liable for any conduct of theirs which is treated as having been done by the employer and amounts to a violation of the EqA 2010 by the employer. Pursuant to ss 111(1)-(3) EqA 2010, a person is under an obligation not to instruct, cause or directly or indirectly induce another person to violate EqA 2010. These provisions encompass attempts to cause or induce someone else to breach the EqA 2010 (s111(8)) and apply irrespective of whether the other person does violate the EqA 2010 (s111(6)). Pursuant to section 112(1) EqA 2010, a person must not knowingly help another person to do anything which contravened the EqA 2010. Burden of proof[194]Section 136 EqA 2010 provides (amongst other things) that if there are facts for 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. That does not apply if A shows that A did not contravene the provision.[195]Hence if a claimant can prove facts from which the tribunal could conclude, assuming there is no adequate explanation for those facts, that discrimination (or, in this case, victimisation) occurred, the burden shifts to the respondent. The tribunal does not need to make a determination on the established facts that there was victimisation in order for the burden to shift. Once the burden shifts the respondent must show, on the balance of probabilities, that the treatment was "in no sense whatsoever” motivated by a protected act. Igen v Wong [2005] ICR 931. Protected disclosures – ERA claims Time limits[196]In so far as material, s. 48(3) ERA provides:“… An employment tribunal shall not consider a complaint under this section unless it is presented(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”[197]Where an alleged detriment is either unfounded on the facts or was not done on the ground that the Claimant made a protected disclosure, that act or failure to act cannot operate to extend time for earlier proven acts of whistleblowing detriment which are prima facie out of time. Royal Mail Group Ltd v Jhuti UKEAT/0020/16.[198]The “not reasonably practicable” test is a stricter test than the “just and equitable” test applicable in EqA claims. “Reasonably practicable” means something akin to “reasonably feasible.” The test is not so strict as to mean “capable physically of being done” nor so loose as to mean what is merely “reasonable.” Palmer and anor v Southend- on-Sea City Borough Council [1984] ICR 372[199]The burden of proving that it was not reasonably practicable to present a claim in time is on the claimant. Porter v Bandridge Ltd [1978] ICR 943. The test is a strict one and, perhaps in contrast to the "just and equitable" extension in other statutory contexts, there is no valid basis for approaching the case on the basis that the ET should attempt to give the "not reasonably practicable" test a liberal construction in favour of the claimant (emphasis added). Cygnet Behavioural Health Ltd v Britton [2022] IRLR 906.[200]If the ET concludes that it was not reasonably practicable to present the claim in time, the ET must then consider whether the claim was presented within a further reasonable period. At that stage, the ET should objectively consider all of the factors causing the delay and what period should reasonably be allowed in the circumstances for the claim to be lodged. The strong public interest in claims being presented promptly, and within the statutory time limit, will be a relevant factor at this stage of the test. Cullinane v Balfour Beatty Engineering Services Ltd and anor UKEAT/0537/10. Qualifying disclosure[201]The whistleblowing provisions of the ERA must be interpreted purposively, as parliament intended to confer “a high level of protection” on those who raise concerns at work, and in a way which privileges substance over form: see e.g. Babula v Waltham Forest College [2007] ICR 1026 at [80].[202]Part IVA ERA defines “protected disclosure” as a qualifying disclosure (within the meaning of s43B ERA) which is made in accordance with any of sections 43C to 43H ERA.[203]Insofar as is material, s. 43B(1) ERA defines “qualifying disclosure” as “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 …(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject… [or] (d) that the health or safety of any individual has been, is being or is likely to be endangered…”[204]Section 43B(1) ERA thus requires that(i) there is a disclosure of information;(ii) the worker subjectively and reasonably believes (on the facts as understood by the worker) that the disclosure is in the public interest; and(iii) the worker subjectively and reasonably believes that the disclosure “tends to show” one of the matters listed in (in so far as material here) sub-paragraphs (b) and/or (d). Breach of legal obligation[205]As to “breach of legal obligation,” in Blackbay Ventures Limited (t/a Chemistree) v Gahir [2014] ICR 747. At [98], the EAT explained that “save in obvious cases, if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation”.[206]The term does not cover breaches of guidance, best practice, or things which are morally wrong. See Eiger Securities LLP v Korshunova [2017] ICR 561. There, the EAT was not satisfied that the apparent practice of brokers sharing passwords, and the alleged conduct of the claimant’s line manager trading from the claimant’s computer without making clear that the claimant was not making the trade, entailed any breach of a legal obligation. This conduct was identified as poor practice in Financial Conduct Authority guidance, but the EAT concluded that it did not follow that it amounted to breach of a legal obligation. Breach of health and safety[207]A restrictive interpretation of “breach of health and safety” would be inapt. See Fincham v. HM Prison Service EAT/0925/01/RN. There, the EAT found it “impossible to see” how a statement that said in terms “I am under pressure and stress” was “anything other than a statement” that the claimant’s health and safety was being or at least was likely to be endangered. (The case was decided in 2002, before the addition of the ‘public interest’ requirement to s.43B(1) ERA in 2013.) ‘Information’[208]To amount to a disclosure of information, the putative disclosure must contain sufficient factual content. See Cavendish Munro Professional Risks Management Ltd v Deguld [2010] ICR 325, EAT and Kilraine v London Borough of Wandsworth [2018] ICR 1850, CA. The context of a putative disclosure is relevant to whether sufficient factual content was disclosed to amount to a disclosure of information.[209]It is unlikely that raising a query or asking for information will amount to a disclosure of information. See Parsons v Airplus International Ltd UKEAT/0111/17. ‘Likely’[210]The worker must believe that the information tended to show that one of the relevant failures had occurred, was occurring or was likely to occur. In Kraus v Penna Plc and anor [2004] IRLR 260, a case specifically concerned with breach of a legal obligation, the EAT held [24] that “likely” means more than a risk or possibility that a person might fail to comply with a legal obligation. Likely should be construed as meaning “probable or more probable than not.” ‘Reasonable belief’ 211. ‘Reasonable belief’ has both subjective and objective elements. The Tribunal should focus initially upon what the worker in question believed rather than what a hypothetical reasonable worker may have believed in the same circumstances. The threshold for “belief” is relatively low. However, for a disclosure to be protected there must be some objective basis for the worker’s subjective belief. Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4, EAT at [61-62].[212]Further guidance on the concept of “reasonable” belief was provided by the Court of Appeal in Chesterton v Nurmohamed [2017] IRLR 837 at [28]. There, it was held that, as in the case of any other ‘reasonableness review,’ “there may be more than one reasonable view as to whether a particular disclosure was in the public interest; and that is perhaps particularly so given that that question is of its nature so broadtextured.”[213]Underhill LJ observed that the “reasonable” belief requirement was “essentially in the same territory” as the “band of reasonable responses” test familiar to employment lawyers or the “Wednesbury unreasonableness” test familiar to public lawyers (albeit suggesting that resorting to terminology from other contexts was not helpful). ‘Public interest’[214]There are no absolute rules when it comes to the statutory “public interest” test, but “the essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest.” See Dobbie v Felton [2021] IRLR 679 [27(7)]. As the EAT also emphasised in that case, disclosures about certain subjects are by their nature likely to be made in the public interest [29]. This includes disclosures demonstrating breaches of data protection law or medical malpractice [29 & 30].[215]While the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be their predominant motive in making it. See Chesterton, where Underhill LJ was “inclined to think that the belief does not in fact have to form any part of the worker’s motivation.” He also held [36]: “the decisive question is not what is in fact in the public interest but what could reasonably be believed to be”. And, (as HHJ Tayler, reviewing Chesterton, puts it in Dobbie) “as in the case of any other reasonableness review, that there may be more than one reasonable view.”[216]Underhill LJ also identified four factors which may assist in determining whether disclosures satisfy the “public interest” test:(a) The numbers in the group whose interests the disclosure served.(b) The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed—a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people.(c) 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.(d) The identity of the alleged wrongdoer. Broadly, the larger or more prominent the wrongdoer in terms of its relevant community of staff, clients and suppliers, the more likely it is that a disclosure about its activities will engage the public interest. Disclosure to co-worker[217]It is debatable whether a disclosure made by one worker to another of equivalent or more junior level, can satisfy the requirements of ERA s.43C. The editors of IDS Employment Law Handbook suggest at Volume 16, Chapter 4, §4.13 opine that such disclosures are unlikely to be protected: “…There is some doubt as to whom, within a company or organisation, a disclosure should be made in order for it to be regarded as having been made to the worker’s ‘employer’. The statutory provisions are silent on this issue. However, a sensible construction of S.43C(1)(a) would surely be that a disclosure made to any person senior to the worker with express or implied authority over the worker should be regarded as having been made to the employer. A disclosure made to a junior colleague, or even one of equal status, on the other hand, would be unlikely to be covered (unless that person was specifically authorised to receive qualifying disclosures…).” ‘Whistleblowing’ detriment[218]Section 47B(1) ERA makes it unlawful for a worker to be subjected to any detriment by an employer via any act or omission which is done on the ground that the worker has made a protected disclosure. Per s. 47B(1A) it is also unlawful for another worker, or for an agent of the employer, to subject a worker to a detriment on the ground that they made a protected disclosure. The employer will be vicariously liable for any act or omission which violates s47B(1A): s. 47B(1B).[219]A claim under ss 47B(1A) and 47B(1B) may rely on dismissal as well as any other detriment: Timis v Osipov [2019] ICR 655 at [58]-[78]; affirmed Treadwell v Barton Turns Development Ltd [2024] EAT 137.[220]The protected disclosure does not need to be the only reason for the employer’s conduct. The section 47B(1) claim will be made out wherever the disclosure materially, i.e. “more than trivially”, influenced the decision maker who subjected the worker to the detriment: Fecitt v NHS Manchester [2012] ICR 372 at [45]; Kong v Gulf International Bank [2022] ICR 1513 at [6].[221]For employers, or by logical extension individual respondents, to be fixed with liability, they must have at least some knowledge of the substance of the disclosure (Nicol v World Travel and Tourism Council and ors [2024] ICR 893, EAT at [82]).[222]In a detriment claim under s. 47B(1) ERA, it is for the employer to show the ground on which any act or failure to act was done: s. 48(2) ERA. If the employer fails to discharge that burden the tribunal may draw an adverse inference against them. However, as with inferences drawn in any discrimination case, inferences drawn by the tribunal in protected disclosure cases must be justified by the facts found. International Petroleum v Osipov UKEAT/0058/17/DA. ‘Whistleblowing’ dismissal[223]Pursuant to s. 103A ERA, an employee who is dismissed will “automatically” have been unfairly dismissed if the reason or principal reason for the dismissal is that they made a protected disclosure.[224]Where the employee does not have the two years’ continuous service required to bring an ordinary unfair dismissal claim, there is no burden on the employer to prove a potentially fair reason for dismissal (as would otherwise be the case pursuant to s. 98(1) ERA). In such circumstances, the burden is on the employee to prove that the reason for the dismissal was an automatically unfair reason. See Smith v Hayle Town Council [1978] ICR 996, CA, applied in a s.103A claim in Ross v Eddie Stobart Ltd UKEAT/0068/13.[225]When identifying the reason for dismissal, tribunals must take a broad and reasonable approach, in accordance with industrial realities and common sense, so as to identify the “real,” rather than the superficial, reason for dismissal: West Midlands Cooperative Society v Tipton [1986] AC 536 at 544; Royal Mail v Jhuti [2020] ICR 731 at [59]. Where the dismissal decision-maker was not themselves influenced by the protected disclosure, but they were substantially influenced by others who were so influenced, a s103A claim will be made out: see Jhuti; and GM Packaging (UK) Ltd v Haslem UKEAT/0259/13 at [25].[226]However, as was explained in in Jhuti, by Lord Wilson at [60], in searching for the reason for a dismissal for the purposes of s.103A, tribunals need generally look no further than the reasons given by the appointed decision-maker. APPLICATION TO THE FACTS[227]Below, we first address whether or not the claimant’s disclosures were protected (ERA) and/or (in the case of PD1-4) were protected acts. However, as will be seen below, a crucial problem with most of the claimant’s case is causation. Hence our analysis of precisely what was said, and whether or not it amounted to a protected disclosure/act in each case, is perhaps somewhat less full that it otherwise might have been. Protected acts/disclosures? PD1/PA1[228]We do not think what the clamant said at the 10.1.22 meeting amounted to a protected act. This is because we do not think race was mentioned, or that race discrimination was inferred, by the claimant. See further above.[229]Was what she said a protected disclosure? We find that it was. We accept that amongst other things13 she referred to health and safety, and to DD’s bullying behaviour towards 13 Some of those things – e.g. that the team “had doubts about DD’s performance and felt that she lacked experience” do not, as we see it, engage s.43B ERA as a potential ingredient for a protected disclosure. LJ and SS having negatively impacted on LJ and SS’s mental well being. We think that the claimant flagged up with sufficient specificity, and (applying the test set out above) reasonably believed, that the company would be in breach of legal obligation - its duty of care to staff- and/or facilitating the endangerment of health and safety, by allowing such behaviour to continue. Fincham was a useful reference point in this regard.[230]We were less readily convinced, applying the Chesterton guidance set out above, that the claimant reasonably believed what she said was in the public interest. The impugned conduct was deliberate. But the numbers of staff impacted were small. The perpetrator was not a senior figure. The ‘wrongdoer’ (i.e. vicariously, the company) was neither large nor prominent in terms of its relevant community of staff, clients and suppliers. Naturally, it may be in the public interest to disclose something involving wrongdoing by a member of staff in a small company. But scale is a factor.[231]Nevertheless, the disclosure served a somewhat wider interest than “the private or personal interest of the worker making the disclosure.” Though the ‘victim pool’ may have been small, part of the reason for making the disclosure was to prevent the pool becoming wider and/or to prevent repetition. Bearing in mind the above dicta from Dobbie, we therefore consider that the ‘reasonable belief in public interest’ criteria is met. PD2/PA2[232]For the reasons set out above, we do not think the claimant did a protected act on 10.2.22, because we do not think she mentioned race discrimination, or inferred race discrimination, during her conversation with Mr Slota-Newson.[233]Did what the claimant said to Mr Slota-Newson amount to a protected disclosure? We are conscious that we have not heard from Ms Slota-Newson about what the claimant alleges she said. And for the reasons set out above, we think it likely the claimant is overstating the amount of information she gave her, and the detail into which she went.[234]Nevertheless, we conclude she probably still gave Mr Slota-Newson at least some information which in her reasonable belief tended to show breach of health and safety and/or legal obligation (duty of care). And, for similar reasons as those set out above in the context of PD1, we find that she reasonably believed it was in the public interest for her to give that information. That finding was finely balanced. PD3/PA3[235]For the reasons set out above, we do not find that the clamant did a protected act on 26.7.22. This is because we do not think she alleged race discrimination, or inferred race discrimination, during her conversation with Ms Slota-Newson and Mr Gibbs.[236]Did what she said amount to a protected disclosure? Again, we are conscious that we have not heard from Ms Slota-Newson or Mr Gibbs. And again, for the reasons set out above, we think that the claimant is overstating the amount of information she gave, and the detail into which she went.[237]However, with some hesitation, we think she probably did still give them at least some information which in her reasonable belief tended to show breach of legal obligation (duty of care). And, for similar reasons as those set out above in the context of PD1, we find that she reasonably believed it was in the public interest for her to do so. Again, that finding was finely balanced. PD4/PA4[238]For the reasons set out above, we do not think the clamant did a protected act on 4.8.22, because we do not think she alleged race discrimination, or inferred race discrimination, during her conversation with Mr Hao.[239]Did it amount to a protected disclosure? Once again, we are recognise that we have not heard from the ‘recipient,’ Mr Hao. However, we have heard ‘second hand’ his afterthe-event comment on the conversation, via Dr Zhu. As set out above, we were told (and we accepted) Mr Hao said he recalled that she made negative comments about DD, and but he did not remember her saying anything about bullying or harassment and he did not know the identities of SS or LJ. We think that accurately summarises what he told Dr Zhu was his recollection. As to what we found the claimant did/not say to Mr Hao, see further above.[240]We, again with some hesitation, think the information the claimant gave Mr Hao amounted to the disclosure of information which in her reasonable belief tended to show breach of health and safety and/or legal obligation (duty of care). Also, that the claimant reasonably believed that it was in the public interest for her to disclose the (limited) information she gave to Mr Hao. Once again, that finding was finely balanced. PD5[241]We accept the claimant told Mr Gibbs that Mr Lee had deliberately manipulated the CAP table to show false data to Dr Buckley- who was at that time a potential employee of the company (rather than an investor). For the reasons set out above, though, contrary to what is said at LOI 3.1.5(i)&(iii), we do not think the claimant asserted to Mr Gibbs that the company’s14 reliance on the CAP table “amounted to fraud,” or -more importantly- that the CAP table “had been presented to investors and presenters.” If she did do so, she had no reasonable (subjective or objective) basis for believing in such statements.[242]There is some force in Mr Cook’s submission that, based upon the information available to her15, the claimant cannot reasonably have believed that the information she disclosed to Mr Gibbs “tended to show fraud in the legal sense.” Also, as noted above, Dr Buckley himself referred only to the “potential to amount to fraud,” rather than the likelihood of it. However, we are persuaded that she reasonably believed -rightly or wrongly- Mr Lee had committed ‘fraud’ (i.e. fraudulent misrepresentation in the civil law sense).[243]As to belief in public interest, it is clear that she viewed what she thought she knew about Mr Lee’s limited use of the CAP table as “good and useful ammo,” to use against him16. We consider that her motive for telling Mr Gibbs was probably largely strategicto weaken Mr Lee. We do not think that this, of itself, negates ‘belief in public interest’ – see Chesterton above. Nevertheless, in circumstances where she does not rely on s.43B(1)(a) ERA (criminal offence), where the only possible ‘victim’ (as far as she was 14 Of course, the company might be said to be vicariously liable for Mr Lee’s ‘reliance on the CAP table’ 15 Chesterton makes clear that a disclosure does not cease to qualify simply because the worker seeks to justify it after the event by reference to specific matters which the tribunal finds were not in their head at the time they made it. 16 Mr Hutcheon submits that the respondents were “noticeably vague as to what they are implying that Mrs Adams was hoping to achieve. This whole portrayal is wide of the mark. No doubt Mrs Adams was hoping to expose misconduct by a person who done something seriously wrong; but that is what it means to be a whistleblower.” Eloquent though that submission is, it does not explain the claimant’s use of the phrase “good and useful ammo.” aware) was Dr Buckley, and where (as far as she was aware) the only potential consequence of the misinformation was to be a factor persuading Dr Buckey to join the company, we were not persuaded that she believed her disclosure was in the public interest (or, if she had that belief, that it was reasonable).[244]If we are wrong in that analysis, see further below as regards causation. PD6[245]PD6 was to Dr Buckley. Does the fact that Dr Buckley was of equal or junior status to the claimant in the company necessarily mean she cannot have made a protected disclosure to him? We think not. If, for example, a junior employee as disclosee treats the discloser detrimentally because of the disclosure, or passes on the information which then leads to detrimental treatment of the discloser by a more senior member of staff because of the disclosure, we would have thought that was actionable.[246]However, the point is academic here. For these reasons, PD6 was not a protected disclosure:(a) We do not consider that the claimant made any disclosure of information within the sense contemplated by s.43B ERA. All she essentially did was pass a draft on to Dr Buckley, for his input.(b) We do not consider ‘breach of legal obligation’ was engaged. The draft was just that. It had not been published. There was no reason reasonably to believe it would be published in that form. It was submitted on behalf of the claimant that she “reasonably believed that the press release may contain fraudulent representations as to [the company’s] technology, in part because it was clear to her that she was not meant to have been included in the chain.” But “may contain” is not enough. See further para 210 above. It was just a draft. And (as she accepted in crossexamination) the claimant lacked the technical know-how to appreciate the extent of any technical deficiencies in the draft -which is why she sent it to Dr Buckley.(c) We do not consider there was a reasonable basis to believe that sending the draft to Dr Buckley for his comment etc was in the public interest.[247]If we are wrong in that analysis, see further below as regards causation. Causation & detriment[248]We have found that the claimant did not do any protected acts. If we are wrong, the same points on causation which we make in relation to PD1-4 would apply in relation to PA1-4.[249]As regards PD1, as set out above, we think the claimant has exaggerated Dr Zhu’s response during the 10.1.22 meeting -which comprises detriment 4.2.1(a). However, as set out above, we did find that he was somewhat churlish in his response, and said words to the effect of “why do you care?” This was in our view (at the lowest end of) detrimental treatment of the claimant by Dr Zhu, done because of PD1.[250]As a free-standing complaint, detriment 4.2.1(a) is long out of time. Because we have found (below) that the rest of the whistleblowing claims must all fail, there is no later ‘similar act or failure’ to bring the events of 10.1.22 in time. The claimant has not persuaded us that it was not reasonably practicable to bring a claim in respect of (just) the events of 10.1.22 within the statutory time limit, or, that such a claim could not otherwise have not reasonably have been brought far earlier. We therefore do not have jurisdiction to hear that element of the complaint.[251]We do not think PD1 had any material impact on the company’s or Dr Zhu’s interactions with the claimant after 10.1.22.[252]Most of the other pre-dismissal detriment complaints are levelled at Dr Zhu personally. Others, aimed at “the respondents,” rely on Dr Zhu’s acts/omissions. We have found that Dr Zhu was unaware of any of PD2-PD6 at any material time. It follows that none of these matters can have in any way motivated Dr Zhu to act as alleged. This is so even if we are wrong on our analysis of PD5 and PD6, which led us to find that they were not protected disclosures.[253]Turning to the specific detriments relied on post-10.1.22, and in the (not always chronological) order they appear in para 4 of the LOI:(a) LOI para 4.2.1(b): Above, we have explained our finding that the descriptor of the claimant on the Amazon 9.2.23 presentation, and any reaction by Dr Zhu to being challenged by the claimant on point that day, had nothing to do with any PD -the most recent in time of which would, on the claimant’s case, have been PD4 some 6 months previously.(b) LOI para 4.2.1(c): Above, we have explained our findings as to what we found happened on 28.4.23, and why we consider there was no link to events concerning Mr East’s visit and any PD.(c) LOI para 4.2.2: Above, we have explained why we do not consider there is any link between any PD and the delay in implementing a (backdated) salary increase.(d) LOI para 4.2.3: Above, we have explained why we do not think there is any causal connection between any delay in the claimant’s receipt of her share option contract and any PD. (In the circumstances of this case, we also do not think any such delay amounted to an actionable detriment in any event.)(e) LOI para 4.2.4: This allegation is put in very vague terms in the LOI. However, Mr Hutcheon clarified that it related to the August 2022 comments made by Dr Zhu when correcting Ms Gilfillan’s draft salary increase letter. For the reasons set out above, we do not think “purely as promised and after probation and after investment” was “implicitly denigrating” the claimant. It was factually correct. And in any event, it was unconnected to any PD.(f) LOI para 4.2.5: This allegation was not pursued as a freestanding head of claim, other than in so far as it overlaps with LOI para 4.2.4.(g) LOI para 4.2.6: The claimant has always and continues to put the allegations of sidelining in general terms. Having considered each of the allegations, we do not think any of the ‘sidelining’ by Dr Zhu, in so far as it is factually made out, was caused in any way by any of PD1-PD6. (Of course, several of the PDs postdate all or most of the alleged ‘sidelining’ in any event.) Dealing in summary with the sub paras of LOI para 4.2.6:a.PD1 was the only PD of which Dr Zhu was aware. As set out above, in the days, weeks and months following PD1, the claimant was invited to/participated in management meetings. We do not think she has established that because of PD1, or any other PD, she was excluded from other management meetings. We accept she may have been excluded from some meetings later in the chronology (although we also accepted Dr Zhu’s evidence that it was not necessary for her, or anyone else, to go to all such meetings). But this was a combination of the claimant not always being needed at meetings, of Mr Lee becoming increasingly influential, and of the relationship with Dr Zhu breaking down later in the chronology. It was not connected to a PD.b. We made similar findings to (a) above in relation to meetings with third parties. In the days/weeks/months following PD1, as set out above, the claimant continued to attend meetings with a variety of third parties/potential partners. In so far as the frequency of her attendance diminished, we do not think this had anything to do with any PD. It was a combination of the claimant not always being needed at meetings; of her deciding not to attend some meetings because of their technical nature; of Dr Zhu sometimes “going one man band” -because that, as Mr Gibbs recognised, is how he often tended to operate; of Mr Lee becoming increasingly influential, and of the relationship with Dr Zhu breaking down later in the chronology.c. The claimant relies simply on the April 2023 meeting with Mr East. We have dealt with this above.d. The claimant relies on the non-sharing of the contentious iteration of the PR announcement for Display Week in May 2023. We have dealt with this above.e. As Mr Hutcheon observes in his submissions, there is limited direct evidence of the claimant being excluded from technical updates. Dr Zhu said in his evidence that it was not the best use of the parties’ time for her to attend, and that it was not legitimate to include her, though “she would be welcome”. We were not entirely convinced that she would have been welcome to attend, though uninvited. But we did accept that she would often not be needed at technical meetings (being CCO not CTO or a technician). More importantly, we do not think she was excluded from any such meetings because of PD1 (or any alleged PD).f. As noted above, Dr Zhu had actually made changes to the 1:1 process by 4.1.22- prior to any PD. And 1:1s did not completely stop thereafter, either. They reduced in number. But we accepted Dr Zhu’s evidence that the multitude of meetings and chats he had with her in late 2021 were to ‘get her up to speed’ and would therefore naturally decline; also, that he became -as he put it- more “snowed” with other matters. The gradual deterioration of his relationship with her would also have probably contributed. We were not persuaded that a decline in 1:1 meetings had anything to do with PD1 (or any other alleged PDs). The assertion that after January 2022 Dr Zhu “increasingly disagreed with everything the claimant said in group meetings” is far too vague, and is not addressed in the claimant’s closing submissions. We heard nothing to suggest that any disagreements in any such meetings were in any way PD-related, and we find there to be no such link.(h) LOI para 4.2.7: As we have explained above, Dr Zhu signed off an NDA a few days after PD4, as well as on 17.10.24. He explained, and we accepted, his reasons for not signing the flexEnable and ReMarkable NDAs. We understand the claimant’s frustration with his position at the time. But it had nothing to do with any PD. (LOI para 4.2.7 refers to the company not entering any NDAs after September 2022. Leaving aside the fact this is factually incorrect, it is clear from Mr Hutcheon’s helpful submissions that the allegation concerns Dr Zhu’s refusal to sign the flexEnable and ReMarkable NDAs. No other ‘non-entry of NDAs’ or refusal was relied on.)(i) LOI para 4.2.8: See discussion of LOI 4.2.1(a), above.(j) LOI para 4.2.9: see ‘Dismissal’, below.(k) LOI paras 4.2.10 & 4.2.11: The claimant was not granted “a right of appeal”, and the company did not hear her appeal, because, as she did not have 2 years’ service, she did not have the right to appeal under the company’s procedure. As we have explained above, regardless of whether or not that decision (by HR) was fair or appropriate, it had nothing to do with any PD. Dismissal[254]The dismissal is put as an act of detriment instigated by Dr Zhu17, for which the company is also said to be liable, as well as an act of ‘automatic unfairness’ by the company for s.103A ERA purposes. 17 It is not part of the claimant’s pleaded case that any of the board members were themselves materially influenced by any of the PDs.[255]As we have found above, the principal reason for the dismissal was not any of the PDs. Indeed, we do not consider that any of the PDs played any material part in the decision to dismiss- they did not impact on Dr Zhu, or on anyone else present at the 11.5.23 board meeting where Dr Zhu’s recommendation was ratified. In particular:(a) The only alleged disclosure of which Dr Zhu was aware at the time was PD1, made 16 months beforehand. It cannot realistically be said that PD1 played any part in his recommendation. It did not do so. Otherwise, we think Dr Zhu would very probably have contrived to get claimant dismissed -e-.g not confirmed in post after completion of probation- in early 2022.(b) We accepted Dr Zhu’s evidence that, as far as he was concerned, the claimant had not lived up to expectations. Those expectations may well not have been realistic on his part, or adequately articulated to her. But they were crucial to the narrative. She secured no business or investments for the company, despite being its highly paid CCO. They explain his perception (fair or otherwise) that her “skill set was not aligned with the company’s needs for business development, sales and marketing.’ Mr Stacy apparently confirmed that perception on 11.5.23.(c) As explained above, the 6.5.23 WhatsApp messages between Mr Lee and Dr Zhu reveal Mr Lee had the claimant ‘in his sights,’ and was doing his best to oust the claimant. It is not suggested by the claimant that any of the PDs turned Mr Lee against her, or that any of his acts/omissions amounted to ‘whistleblowing detriment.’(d) As noted above, the claimant’s own contemporaneous response was to blame Mr Lee, rather than any PD, for her termination.(e) (Dr Buckey’s 17.5.23 messages with Mr Lee -set out above- suggest that the claimant’s dismissal had been planned since January 2023. If that is right, her fate at the company was sealed some 4 months after PD4, and prior to PD5 or PD6. PD6 occurred after the board pack had been created.)[256]We understand the claimant’s frustration that she was told had ‘fail to hit targets’ when no specific targets were set. We have some sympathy for the claimant’s complaint that she should have received more forewarning, and better support, from Dr Zhu- even taking into account the seniority of her role (which meant Dr Zhu had high expectations of her). Even for a startup company, where HR infrastructure was rudimentary, process and communication within the company was unusually poor. If this was an ‘ordinary’ unfair dismissal claim, she might very well have won it. But it is not. Her claims of predismissal detriment under ERA and EqA, and in relation to the dismissal itself -i.e. as a detriment and as ‘automatically unfair’- must fail. ………………………………….. Employment Judge Michell 3/1/20257/1/2025 ` For the Tribunal: N Gotecha
THE ISSUES
[1]Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 11 April 2023 may not have been brought in time.1.2 Were the victimisation complaints made within the time limit in section 123 of the Equality Act 2010 (EqA)? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?1.3 Were the detriment complaints made within the time limits in section 48 of the Employment Rights Act 1996 (ERA)? The Tribunal will decide:1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the effective date of the act complained of, to include consideration of whether the act/failure in question was an act extending over a period?1.3.2 If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?1.3.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?1.3.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?[2]Automatic Unfair Dismissal2.1 It is agreed that the Claimant was dismissed. The First Respondent says that this was due to concerns about her performance.2.2 Was the reason or principal reason for dismissal that the Claimant made a protected disclosure? If so, the Claimant will be regarded as unfairly dismissed.[3]Protected disclosure3.1 Did the Claimant make one or more qualifying disclosures as defined in s. 43B ERA? The Claimant says she made the following disclosures:3.1.1 Disclosure 1 – on or around 10.1.22 (GoC §§14-16) At a meeting with the First Respondent’s senior management including the Second Respondent, Yingjun Liu and Kunal Kashyap, the Claimant disclosed that: i. Dandan Zhu was bullying and harassing Liang Jie and Sid Suman. ii. Ms Zhu regularly locked Mr Jie in the inventory room. iii. Ms Zhu had been very critical of both employees in meetings. iv. The employees believed that the bullying and harassment by Ms Zhu was because of their nationalities v. This treatment by Ms Zhu was causing both employees distress and was impacting upon their mental health. vi. Ms Zhu’s behaviour could be regarded as racial abuse, and that those employees viewed the behaviour in this way. vii. The First Respondent was vicariously liable for Ms Zhu’s conduct, and that the Second Respondent might also be liable. viii. Several employees had said that they were looking for new roles because of Ms Zhu’s behaviour. ix. The team also had doubts about Ms Zhu’s performance and felt that she lacked experience.3.1.2 Disclosure 2 – on or around 10.2.22 (GoC §19) During a conversation with Ms Slota-Newson of IQ Capital (a Director of the First Respondent), the Claimant disclosed that: i. Dandan Zhu was bullying and harassing junior employees, particularly Sid Suman and Liang Jie. ii. Ms Zhu regularly locked Mr Jie in the inventory room. iii. Mr Suman and Mr Jie both believed that they were being targeted because of their nationalities. iv. Other concerns, including that Ms Zhu regularly screamed and shouted in the office, and that she had been told by colleagues that they had heard what sounded like furniture being thrown. v. Morale at the First Respondent was low, and she was concerned about the safety and wellbeing of Mr Jie and Mr Suman. vi. She believed that the Second Respondent was fully aware of Ms Zhu's conduct, and even encouraged it. The Claimant noted that a significant number of the incidents of bullying and harassment took place during meetings at which the Second Respondent was present, and that he did not intervene.3.1.3 Disclosure 3 – on or around 26.7.22 (GoC §23) During a conversation with Ms Slota-Newson and Christopher Gibbs (a Director of the First Respondent), the Claimant disclosed that: i. Dandan Zhu was continuing to bully and harass Liang Jie and Sid Suman. ii. The Second Respondent not only tolerated this but encouraged it. iii. Six employees had resigned that week alone. iv. The First Respondent’s workplace culture was toxic and that more employees were likely to resign. v. Although all employees had been affected by the toxic workplace culture, Mr Jie and Mr Suman were being singled out and that they believed it was because of their nationalities. vi. She had concerns about the First Respondent’s duty of care towards its employees. vii. The Second Respondent did not have the skills or experience to manage the First Respondent’s employees and lead the organisation.3.1.4 Disclosure 4 – on or around 4.8.22 (GoC §25) During a conversation with Rick Hao (the First Respondent’s Investor Director), the Claimant disclosed: i. That the First Respondent was failing in its duty of care to employees. ii. The information which she had disclosed in the conversation with Mr Gibbs and Ms Slota-Newson (see Disclosure 3 above). iii. The First Respondent’s employees were turning to her for help, but she was unable to do anything without the involvement of the Directors.3.1.5 Disclosure 5 – on or around 26.4.23 (GoC §§28-31) During a telephone conversation with Mr Gibbs, the Claimant disclosed that: i. A CAP table, which she understood had been presented to investors and presenters, showed Mike Lee (an external management consultant engaged by the First Respondent) as a significant investor after the Series A raise in February 2022. ii. This was wrong and the correct identity of the investor was Wei Li. iii. She was concerned that the First Respondent’s reliance on an incorrect CAP table amounted to fraud. iv. Ed Buckley, the First Respondent’s VP of System Engineering, was increasingly concerned about the accuracy of the information that was being presented to partners and investors. v. The Claimant was concerned that information was now being withheld from both her and Mr Buckley. vi. The Claimant was aware that Mr Buckley had raised serious concerns about the information that the First Respondent had presented to Amazon when they visited the First Respondent’s site on 9 February 2023. The Claimant had been troubled by this, because Mr Buckley was well placed to know whether the technical information being provided was correct or not. vii. She was concerned that Mike Lee was potentially conflicted because he was working simultaneously for the First Respondent and Vuzix at a time when the First Respondent were trying to “do a deal” with Vuzix.3.1.6 Disclosure 6 – on or around 10.5.23 (GoC §35) By way of a forwarded email and then by way of a WhatsApp exchange with Ed Buckley the Claimant disclosed a draft PR announcement relating to Display Week, an important sector event, in which the Claimant was concerned that the Respondents were presenting misleading information.3.2 Did the Claimant disclose information?3.3 Did the Claimant believe the disclosure of information was made in the public interest?3.4 If so, was that belief reasonable?3.5 Did the Claimant believe it tended to show that for disclosures 1 – 4:3.5.1 a person had failed, was failing or was likely to fail to comply with any legal obligation; and/or3.5.2 the health or safety of any individual had been, was being or was likely to be endangered; and for disclosures 5 – 6:3.5.3 a person had failed, was failing or was likely to fail to comply with any legal obligation.3.6 If so, was that belief reasonable?3.7 If the Claimant made a qualifying disclosure, was it made:3.7.1 to the Claimant’s employer (the Claimant says that it was made to the First Respondent’s then Directors and members of the Senior Management Team); and/or3.7.2 another responsible person within the meaning of s. 43C ERA. If so, it was a protected disclosure.[4]Detriment (s.48 ERA)4.1 (The Claimant’s claims are brought under ss. 47B(1), (1A) & (1B) ERA.)4.2 Did the First and/or Second Respondent do the following things?4.2.1 The Second Respondent behaved in an aggressive, and at times hysterical, manner towards the Claimant.4.2.2 The Second Respondent delayed the increase to the Claimant’s salary until August 2022. Her salary was due to be increased in February 2022.4.2.3 The Second Respondent delayed providing the Claimant with her signed share option contract (dated 3 June 2022) until January 2023, when other employees were sent theirs in or around July 2022.4.2.4 The Second Respondent unfairly denigrated the Claimant’s performance both within the First Respondent and to external third parties, and otherwise sought to undermine her (despite the Second Respondent only ever having given the Claimant positive feedback to her face).4.2.5 The Second Respondent sought to play down the Claimant’s contributions to the success of the First Respondent, and in particular played down the large number of potential customers that she had introduced to the Respondents.4.2.6 The Claimant was side-lined by the Second Respondent from January 2022 onwards. In particular: a. The Claimant was excluded from management meetings which she had previously attended; b. The Claimant was excluded from key meetings with third parties, including a meeting with Stratacache in April 2023, and conversations with potential partners such as Kopin, Philips, Vuzix, Meta and Amazon. c. The Claimant was not told when key individuals, such as Warren East, were visiting the First Respondent’s office and was actively obstructed from speaking with him.4.2.7 After September 2022, the First Respondent did not enter into any Non-Disclosure Agreements, which limited the Claimant’s ability to engage with potential partners and inhibited the Claimant's ability to properly discharge her duties.4.2.8 In February 2023, the Respondents sought to characterise the Claimant’s role as having changed from Chief Commercial Officer, when this had not been agreed with the Claimant.4.2.9 The Claimant was summarily dismissed on 17 May 2023 (the detriment of dismissal is pursued as an unlawful detriment claim against the Second Respondent only).4.2.10 The Respondents did not grant the Claimant a right of appeal against her dismissal.4.2.11 The Respondents refused to hear the appeal made by the Claimant on 9 June 2023.a. During the meeting on 10 January 2022, the Second Respondent responded angrily when the Claimant raised her concerns. His voice rose until he went red in the face and he started shouting and screaming responses at the Claimant (and others present). The Second Respondent stood while others present were sat down. He remained angry and agitated thereafter. On a number of occasions in the meeting, the Second Respondent yelled in the Claimant’s face.b. Around February 2023, during a meeting with representatives from Amazon, the Second Respondent presented a presentation which described the Claimant as head or chief of people, which was different from her agreed role title (Chief Commercial Officer). When the Claimant questioned this after the meeting, the Second Respondent shouted at the Claimant that she would not have any new responsibilities and that she should not challenge him, and that he was the CEO and he could do what he wanted. The Claimant requested clarity as to why she was being presented in this way if such responsibilities were not being added to her existing role and the Second Respondent again shouted that the Claimant should not challenge him as CEO until the Claimant left his office. During the meeting, the Second Respondent's voice got louder and louder and he thumped his desk occasionally, giving the Claimant the impression that he had lost control.c. In or around May 2023, the Claimant ran into Warren East (an ex-colleague of hers) in the First Respondent's offices. As set out at Grounds of Complaint §46(6)(c) the Claimant was not told when Mr East was visiting and was actively obstructed from speaking with him by other members of staff on the instruction of the Second Respondent. When the Second Respondent arrived and found the Claimant in conversation with Mr East, the Second Respondent became agitated, looked angry, began raising his voice, and was obviously hostile towards the Claimant. He talked over the Claimant as she was speaking with Mr East.d. The Second Respondent did not share draft PR announcements with the Claimant, even for an event which she was due to attend and had organised.e. The Second Respondent instructed the First Respondent’s employees not to share technical updates with the Claimant.f. The Second Respondent, the Claimant’s line manager, stopped attending 1:1 meetings with her and after January 2022 increasingly disagreed with everything the Claimant said in group meetings.4.3 In so far as they so acted, did they subject the Claimant to detriment?4.4 If so, was it done on the ground that the Claimant made a protected disclosure?[5]Victimisation (s.27 EqA)5.1 Did the Claimant do a protected act as follows: 5.1.1 The Claimant relies on disclosures 1 to 4.5.2 Did the First and/or Second Respondent do the following things: 5.2.1 The Claimant relies on the same detriments set out above.5.3 By doing so, did it subject the Claimant to detriment?5.4 If so, was it because the Claimant did a protected act?5.5 Was it because the First and/or Second Respondent believed the Claimant had done, or might do, a protected act?[6]Accessory liability (s111 & 112 EqA) 6.1 Did the Second Respondent instruct, cause, induce or knowingly help the First Respondent to dismiss the Claimant because she had done a protected act, within the meaning of those terms as they are used in s. 111 and/or s.112 EqA? Case Number: 3311054/2023 69 of 69