A Wix v Sole Bay Fish Company Ltd and D Marriott: 3311401/2023 A Wix v Sole Bay Fish Company Ltd and D Marriott: 3311401/2023

EMPLOYMENT TRIBUNALS

Case No 3311401/2023

Between

A WixClaimant

Sole Bay Fish Company Ltd and D MarriottRespondent

Before

Employment Judge Hutchings

Date 22 April 2025

JUDGMENT

It is the unanimous judgment of this Employment Tribunal that:

[1]The complaint of being subjected to detriment for making a protected disclosure is not well founded and is dismissed

[2]The complaint of automatic unfair dismissal is not well founded and is dismissed

[3]The complaint of failure to provide an initial statement of particulars of employment is well founded. No award can be made as the claimant has not succeeded in the other claims before the Tribunal.

REASONS

[1]The claimant commenced employment with the first respondent, a company engaged in the provision of services as a restaurant, takeaway and fishmongers, on 20 September 2021 as a team support manager. It is the claimant’s case that he became Operations Manager in early 2022. The second respondent is the owner and sole director of the first respondent. It is agreed that the claimant resigned without notice on 25 August 2021 and the effective date of termination is 28 August 2022.

[2]ACAS consultation with the first and second respondents started on 7 September 2023 and a certificate was issued on 4 October 2023.

[3]By an ET1 claim form and Particulars of Claim dated 4 October 2023 the claimant makes the following claims: 3.1. Section 47B of the Employment Rights Act 1996: detriment for making a Protected Disclosure; 3.2. Section 103A of the Employment Rights Act 1996: automatic unfair dismissal; 3.3. Section 1 of the Employment Rights Act 1996: failure to provide initial particulars of employment; and 3.4. Failure to pay holiday pay (Working Time Regulations 1998, regulation 14; sections 13 and 26 Employment Rights Act 1996; breach of contract).

[4]By an ET3 response form and Grounds of Resistance dated 14 March 2024 the claimant denies the allegations of whistleblowing and automatic unfair dismissal, asserting that the claims are a sham. The respondents position is the claimant received a contract at the start of his employment. At the time they submitted the response the respondents were seeking advice from their accountants as to whether holiday pay was owed.

[5]At the case management hearing before Employment Judge Forde in June 2024 the claimant informed the Tribunal that the issue about holiday pay had been resolved and withdrew this claim. On 31 March 2025 the Tribunal issued a dismissal judgment on withdrawal for the holiday pay claim. Evidence and procedure

[6]The case was listed for 7 days.

[7]We considered the following documents which the parties submitted in evidence: 7.1. An initial hearing file of 775 pages; and 7.2. The respondents’ documents, included at the end of the hearing file and for which the respondents made an application to admit on day 1. The claimant did not object to the admission of the documents. At the start of the hearing on day 2 Mr Jones noted that there were some references to without prejudice correspondence in these documents. We removed the document at page 427 as parties agreed this was without prejudice correspondence. As to other references, Mr Jones suggested a pragmatic approach that, as the Tribunal had not been referred to these documents in its reading, and neither party intended to refer to them during the hearing, they could be left in the hearing file on the basis the Tribunal would not read them. We agreed.

[8]The claimant’s schedule of loss was not included in the hearing file. On day 2 the claimant sent this to the Tribunal and the respondent by email.

[9]The claimant was represented by Mr Jones of counsel and gave sworn evidence on day 2 and day 5. On day 3 Mr Jones called sworn evidence from: 9.1. Mr Roy Coe, a former colleague and the Head Chef at the Sole Bay Restaurant from April to June 2023; and 9.2. Mr Josh Greenall, a former colleague and Manager of the Little Fish and Chip Shop from July 2022 to November 2023.

[10]The respondent was represented by Mr Ashley of counsel who called sworn evidence from: 10.1. The second respondent, Darren Marriot, sole owner and director of the first respondent (day 3, 4 and 5). Mr Marriot signed his witness statement at the hearing; and 10.2. Mrs Mandy Julings, the first respondent’s kitchen supervisor at the time of the complaints (day 5). The Tribunal received a signed copy of Mrs Julings’ witness statement from Mr Ashley by email dated 8 April 2025.

[11]We considered an opening note from Mr Ashley and a reading list from Mr Jones.

[12]On day 3 the respondents submitted an additional document (an email dated 23 May 2023). The claimant did not object to the admission of this email in evidence. We agree with the parties that the email is relevant to the issues in dispute and admitted the document. As the email was submitted after the claimant had finished giving his evidence, we allowed further examination of the claimant on this document (day 5).

[13]On day 5 Mr Jones and Mr Ashley provided each other and the Tribunal with written closing skeleton submissions and spoke to these orally. Hearing Timetable

[14]An outline timetable was set out in the case management order of Employment Judge Forde (dated 25 June 2024 and sent to parties on 21August 2024), which we largely followed, starting the claimant’s evidence on day 2.

[15]The Tribunal took regular breaks, starting at 10am and finishing around 4pm each day. At the hearing parties confirmed witnesses did not require any reasonable adjustments. Preliminary applications

[16]By email dated 26 March 2025 the claimant made a request for his witnesses to give evidence by CVP as they were working during the week of the hearing. The respondents did not object to this request. As the Tribunal had moved the hearing venue from Norwich to Bury St Edmunds at short notice, we considered it fair and reasonable in all the circumstances to allow the claimant’s witnesses to give their evidence by CVP. Mrs Julings also gave her evidence by CVP due to a delay in the timetable. List of issues

[17]Prior to the hearing parties had agreed a list of issues subject to the claimant providing further clarification about one of the alleged detriments (paragraph 3c in the draft list of issues). The claimant did so at the start of the hearing and the list of issues was finalised as follows. Page references refer to the relevant document in the hearing file; and italics record clarifications as to the respondents’ position provided by Mr Ashley at the start of the hearing. 1. Did the respondents fail to provide the claimant with a statement of initial particulars of employment at the beginning of his employment? 2. Did the Claimant disclose information to the First Respondent (as alleged in para.40 of the Particulars of Claim (POC)) by way of any of the following?a. The Claimant’s email of 22 March 2023 (page 205);

b. The environmental health issues reported on or around 18 May 2023 (oral conversation);

c. The Claimant’s discussions with the Second Respondent during the week commencing Monday, 22 May 2023 relating to the opening of the restaurant. (oral conversation);

d. The Claimant’s email of 12 June 2023 (pages 232 – 234);

e. The Claimant’s Solicitors letter of 16 June 2023 (pages 261-262); and,

f. The Claimant’s Solicitor’s letter of 22 June 2023 (pages 267 – 273). In response to the Employment Tribunal’s Case Management Order promulgated on 10 June 2024, the Claimant set out by letter dated 5 July 2024 detailing the legal obligations the claimant says he relied in these communications as follows: Protected disclosure Legal obligation to which the protected relied upon: disclosure relates: A. The Claimant’s email s136 (1) Licensing Act 2003, namely the of 22 March 2023 requirement to have authorisation to carry on a licensable activity, failing which amounts to an offence. s137 and s138 Licensing Act 2003, namely the requirement to have a licence to expose for sale by retail any alcohol and to have in possession or under control alcohol with the intention to sell by retail or supply. B. The environmental Regulation 19 (1) of The Food Safety and health issues Hygiene (England) Regulations 2013, namely reported on or around the requirement to comply with EU provisions 18 May 2023 ORAL regarding food safety (Retained EU Law Regulation (EC) No 852/2004) C. The Claimant’s Regulation 19 (1) of The Food Safety and discussions with the Hygiene (England) Regulations 2013, namely Second Respondent the requirement to comply with EU provisions during the week regarding food safety (Retained EU Law commencing Monday Regulation (EC) No 852/2004) 22 May 2023 relating to the opening of the restaurant ORAL D. The Claimant’s email s136 (1) Licensing Act 2003, namely the of 12 June 2023 requirement to have authorisation to carry on a licensable activity, failing which amounts to an offence. s137 and s138 Licensing Act 2003, namely the requirement to have a licence to expose for sale by retail any alcohol and to have in possession or under control alcohol with the intention to sell by retail or supply. E. The Claimant’s s136 (1) Licensing Act 2003, namely the solicitors’ letter of 16 requirement to have authorisation to carry on a June 2023 licensable activity, failing which amounts to an offence. s137 and s138 Licensing Act 2003, namely the requirement to have a licence to expose for sale by retail any alcohol and to have in possession or under control alcohol with the intention to sell by retail or supply. F. The Claimant’s S15 Immigration, Asylum and Nationality Act solicitors’ letter of 22 2006, namely the requirement to only employ an June 2023 adult who has been granted leave to enter or remain in the United Kingdom, failing which risks a civil penalty. s136 (1) Licensing Act 2003, namely the requirement to have authorisation to carry on a licensable activity, failing which amounts to an offence. s137 and s138 Licensing Act 2003, namely the requirement to have a licence to expose for sale by retail any alcohol and to have in possession or under control alcohol with the intention to sell by retail or supply. The legal obligation to provide accurate information to insurance companies in order to not to commit fraud by false representation under s2 Fraud Act 2006. S2 (1) Health and Safety at Work etc Act 1974, namely the obligation of an employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. This connected to the storage of Liquefied Petroleum Gas (LPG) cannisters not being stored in line with the Liquid Gas UK Code of Practice 07 (2021). S3(1) Health and Safety at Work etc Act 1974, namely the obligation of an employer to ensure, so far as is reasonably practicable, that persons not in in his employment who may be affected are not exposed to risks to their health or safety. This connected to the storage of Liquefied Petroleum Gas (LPG) cannisters not being stored in line with the Liquid Gas UK Code of Practice 07 (2021). S57(1) Town and Country Planning Act 1990, namely the requirement to have planning permission for the carrying out of any development of land. Regulation 19 (1) of The Food Safety and Hygiene (England) Regulations 2013, namely the requirement to comply with EU provisions regarding food safety (Retained EU Law Regulation (EC) No 852/2004) 3. If so, did the disclosure(s) amount to qualifying disclosures pursuant to s.43B ERA 1996? In particular: a. Did the Claimant believe that his disclosure(s) was/were made in the public interest? b. If so, was that belief reasonably held? c. If so, did the Claimant believe that the information he disclosed tended to show that: i. a criminal offence had been committed, was being committed or was likely to be committed by the First Respondent? [Disclosures A, B, C, D, E and F] ii. the First Respondent had failed, was failing or was likely to fail to comply with any legal obligation to which it was subject? [Disclosures A, B, C, D, E and F] iii. the health or safety of any individual had been, was being or was likely to be endangered? [Disclosures A, B, C and F] d. If so, was that belief reasonably held? 4. Did the Respondents (or either of them) do the following things (Para. 41a41t of the POC): a. The reluctance/and or refusal of the Second Respondent to allow the Claimant to address matters relating to the licensing issues, as set out at paragraph 13 of the POC. Para 25. The claimant alleges that this started happening 1 April 2022. Not accepted by the respondents. b. The Second Respondent’s aggressive and dismissive attitude towards the Claimant, as set out at paragraph 14 of the POC. 26. The claimant alleges that this started happening 1 April 2022. Not accepted by the respondents. c. The undermining of the Claimant which the Second Respondent engaged in during May and June 2023 in relation to the premises, as set out at paragraphs 15 -24 of the POC. (para 65). Not accepted by the respondents. i. Discussion in restaurant kitchen between the second respondent and the claimant R2 on 23 or 24 May 2023 R2 insisted on opening kitchen contrary to the claimant’s advice. ii. On 20 May 2023 the second respondent instructed the team to stock the fridge with alcohol contrary to the claimant’s previous instructions. iii. On 30 – 31 May 2023 (during the claimant’s absence) the second respondent amended the kitchen plan from plan finalised by the claimant previous week (the final plan is recorded in WhatsApp group messages on 28 and 29 May 2023); the amendment was not communicated to the claimant. iv. 26 May 2023 (in C absence) R2 instructed Jessica Squire to arranged with restaurant to reopen on 1 June 2023 contrary to agreement between C and R2 to open the restaurant when ready. v. 5 – 12 June 2023 (in C’s absence) R2 caused R1 to build a takeaway structure contrary to a plan agreed between C and R2 during week of 17 May 2023 (in presence of Jessica Squire). d. The deliberate/and or negligent disclosure of the Claimant’s email of 12 June 2023 by the Second Respondent on 13 June 2023, as set out at paragraph 28, of the POC. Respondents accept there a disclosure of the email but not as alleged. e. The disclosure of the fact that the Second Respondent was seeking legal advice against the Claimant on the First Respondent’s communal staff email address on 14 June 2023, as set out at paragraph 26 of the POC. The respondents accept that the claimant saw an email from Peninsula but assert the disclosure was Peninsula’s fault. Having heard the evidence, the claimant withdrew this allegation. f. The ultimatum which the Second Respondent gave to the Claimant on 14 June 2023 – either that the Claimant had to ignore the First Respondent’s illegal and unethical practices or that he would be forced out of the First Respondent, and the manner in which the Second Respondent spoke to the Claimant, as set out at paragraph 27 of the POC. Not accepted by the respondents.

g. The fact that colleagues had been forewarned of the Second Respondent’s intention to remove the Claimant from the First Respondent on or before 14 June, this was evidenced by the fact that when the Claimant was returning to his desk after the discussion with the Second Respondent on 14 June 2023, the Claimant was asked by Elise Garnham if he was leaving the First Respondent since Elise had heard that the Claimant had been dismissed, as set out at paragraph 27 of the POC. Not accepted by the respondents.

h. Failing to address the Claimant’s concerns as set out in his letters of 22 March 2023, 12 June 2023 and 16 and 22 June. Not accepted by the respondents.

i. Failing to make any enquiries as to the Claimant’s health or wellbeing or take his health and wellbeing into account from 15 June 2023 until his resignation. The respondents accept that no enquiries were made about the claimant’s wellbeing but dispute the reason.

j. Committing a serious breach of confidentiality against the Claimant by disclosing a letter (dated 22 June 2023 written on behalf of the Claimant by DPH Legal) to at least Abby Breen, Elise Garnham and anyone with access to the Email, Danny Corcoran, Alison Emerson, and Jessica Squire, as set out at paragraph 31 of the POC. Not accepted by the respondents.

k. Instructing the Claimant’s colleagues not to speak with him and instructing them to address the Claimant as “He who shall not be named” in a deliberately derogatory and disparaging manner, as set out at paragraph 38 of the POC. Not accepted by the respondents.

l. Initiating and pursuing spurious and unfounded accusations against the Claimant and conducting an investigation against the Claimant during his sickness absence which amounted to a witchhunt as set out at paragraphs 33-35 of the POC. Not accepted by the respondents.

m. Removing the Claimant from all company accounts including WhatsApp groups whilst he was on sick leave, as set out at paragraph 29 of the POC. Not accepted by the respondents.

n. Failing to pay the Claimant’s accrued but untaken holiday pay on his resignation, as set out at paragraph 43 of the POC. The respondents accept that the claimant was not paid his holiday pay on resignation.

o. Seeking to persuade the Claimant to retract his resignation, as set out at paragraph 33 of the POC. The respondents accept that the claimant was invited to retract his resignation.

p. Suggesting that the Claimant would have been dismissed for gross misconduct in any event had he not resigned, as set out at paragraph 35 of the POC. Accepted by the respondents.

q. Failing to deal with the Claimant’s grievances properly and in a reasonable timeframe. Not accepted by the respondents. 5. If so, did these things amount to detriments to the Claimant? 6. If so, was/were the detriment/s done on the ground that the Claimant had made a protected disclosure(s)? S103A Employment Rights Act 1996 – Automatic Unfair Dismissal 7. Was the reason or principal reason for the Respondents’ treatment of him as alleged that the Claimant had made a protected disclosure? 8. If so, was the Claimant entitled to resign and treat himself as constructively dismissed? 9. If so, did the Claimant resign in response to the Respondent’s treatment of him as alleged? 10. If so, did the Claimant do anything to waive the Respondents’ conduct and affirm the contract? Time Limits 11. Is the Tribunal barred from considering any of the Claimant’s complaints on the basis that it was not presented before the end of the period of 3 months (plus any applicable EC period) beginning with the date of the alleged act or failure to act (including, where the alleged detriment is part of a series of similar acts or failures to act, the last of them)? 12. Parties agree the cut-off date for allegations is 26 April 2023; the respondents submit that anything that happened before this date is out of time. The claimant accepts that it was reasonably practicable to bring the claim in time, asserting that the factual allegations are continuing acts and therefore all complaints are in time. Remedy – Unfair Dismissal a. What Basic Award is payable to the Claimant, if any? b. Would it be just and equitable to reduce the Basic Award because of any conduct of the Claimant before dismissal? c. If there is a Compensatory Award, how much should it be? The Tribunal will decide: i. What financial losses has the dismissal caused the Claimant? ii. Has the Claimant taken reasonable steps to replace his lost earnings, for example by looking for another job? iii. If not, for what period of loss should the Claimant be compensated? iv. Did the Claimant contribute to his dismissal? If so, should the Claimant’s compensation be reduced? By how much? v. Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? If so, should the Claimant’s compensation be reduced? By how much? d. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? e. If so, did either party unreasonably fail to comply with the ACAS Code of Practice? f. If so, is it just and equitable to reduce or increase any award payable to the Claimant? By what proportion, up to 25%? Remedy – Detriment g. Was/were the act/s to which the Claimant’s complaint relates to any extent caused or contributed to by action of the Claimant? h. If so, by what proportion is it just and equitable to reduce the Claimant’s compensation having regard to that finding? i. Was/were the protected disclosure(s) made in good faith? j. If not, is it just and equitable to reduce the Claimant’s compensation? By what proportion (up to 25%)? k. What financial losses has the detriment caused the Claimant? l. Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job? If not, for what period of loss should the Claimant be compensated? m. What injury to feelings has the detriments caused the Claimant and how much compensation should be awarded for that? n. Is there a chance that the Claimant’s employment would have ended in any event? Should his compensation be reduced as a result? o. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? p. If so, did either party unreasonably fail to comply with it? q. If so, is it just and equitable to reduce or increase any award payable to the Claimant? By what proportion, up to 25%?

r. Should interest be awarded? How much? Findings of fact

Credibility

[18]The claimant was keen to assist the Tribunal and gave direct answers to the questions he was asked by Mr Ashley and Mr Jones. He was willing to make concessions when the evidence in his witness statement did not align with the contemporaneous documentary record, for example when it was put to him that he had not sent numerous emails to the respondents he accepted that he had “used the wrong word with numerous” and that he “meant several or a couple”. We found the claimant’s written and oral evidence comprehensive. The claimant sought to answer the questions he was asked without any evasion.

[19]Nevertheless, unfortunately, it is our view that his answers conveyed a sense of being pre-prepared on occasion and, where there was a gap in the documentary evidence, he took a measured approach to his evidence to ensure that the answers he gave aligned with the case he has presented, even where this was not credible. For example, the claimant makes allegations that he gave instructions about filling the fridge with non-alcoholic drinks and that he had agreed a final plan for the kitchen layout. However, his contemporaneous communications do not support this interpretation of events. We address this discrepancy in more detail in our findings below.

[20]In this regard, it is our view that the claimant took a calculated approach to the preparation and communication of his evidence, notwithstanding that his recollection was implausible in light of contemporaneous documents, with which the claimant’s evidence was manifestly inconsistent (specific examples are his assertion he gave instructions to fill the fridge with non-alcoholic drinks and that he had agreed a final plan for the recommissioned kitchen before his holiday). Although significant parts of the claimant’s evidence were not credible, it is our view that he genuinely felt he had been undermined by the second respondent. In making these findings, we are mindful that the claimant was recalling a very stressful time in his life and the process of recounting it to the Tribunal was stressful for him.

[21]We agree with Mr Jones that Mr Ashley made closing submissions which had not been put to the claimant when he was cross examined. For example Mr Ashley told us that WhatsApp was the main source of communication between the claimant and the second respondent. Mr Ashley did not suggest this to the claimant and it is not an agreed point. Accordingly, we have not considered this (and other submissions not put to the claimant) in our deliberations.

[22]The other witnesses for the claimant were Mr Coe and Mr Greenall. We found Mr Coe an honest and reliable witness who sought to answer the questions he was asked without any evasion. Mr Coe’s evidence was consistent with the contemporaneous documents.

[23]We found Mr Greenall a credible witness, not least as he conceded that he was granted a concession to get an advance on his salary from the second respondent in exchange for giving a written statement about the claimant’s alleged behaviour. Indeed, he told us his statement reflected what the second respondent wanted Mr Greenall to say about the claimant, which invariably informs our assessment of the second respondent’s credibility. It is our view that the second respondent took the approach “if you want me to do you a favour (advance your salary) you need do me one (make the statement reflecting what I want you to say about the claimant). Notwithstanding this unfortunate approach, we accept Mr Greenall’s evidence he gave the statement because he was desperate for an advance on his salary to secure a rental home for his children. Given this admission we have not taken account of Mr Greenall’s statement in our making our findings.

[24]The witnesses for the respondents were the second respondent (Mr Marriot) and Mrs Julings. Mr Marriot gave evidence for two and a half days. It was evident that Mr Marriot found the process of giving evidence challenging. Nevertheless we find that it is, unfortunately, necessary to treat Mr Marriot’s evidence with a considerable about of caution. Often he was evasive; he did not answer the question he was asked and instead sought to speak at length about something unrelated to the question. It is our view he did not give evidence freely to the Tribunal: often he consulted what was written in is witness statement before answering; indeed he seemed unfamiliar with some of the language used in his witness statement (for example “countermanding”). It is our view that the second respondent was cautious in answering questions, which gave the impression that his answers were to some extent pre-prepared and he was reticent to say anything freely without first reminding himself of his written evidence. Invariably this leads us to question the validity of the second respondent’s evidence. This was highlighted when, in replying to Mr Jones’ suggestion he did not provide the claimant with an employment contract, the second respondent first told us “I can do this one”.

[25]On occasion the second respondent lacked focus and did not seem to take the proceedings seriously, waving and joking when giving evidence. We have taken this behaviour as a sign that the claimant was nervous and found the process stressful, but also that. on occasion. the jokes were an attempt to evade answering a question from Mr Jones.

[26]Often the second respondent told us that the matters about which he was asked were not in his remit (he repeatedly told us he did not deal with administrative matters). The contemporaneous documents support the second respondent’s evidence in this regard. However, we make the observation that the claim is against the first respondent as well as the second respondent. We make the observation that even if the second respondent was not directly involved in something, if we find it was a matter dealt with by a manager or employee, subject to our findings below, the first respondent can be liable.

[27]In making these findings we have borne in mind the length of time Mr Marriot spent giving evidence and the amount of time which has passed since the events about which the claimant complains. Although the second respondent was, on many occasions, evasive, it is our view that he is genuinely offended by the accusations made against him by the claimant.

[28]We found Mrs Julings an honest and credible witness. Her answers were straightforward, direct and relevant to the questions she was asked. However, we find it curious that the respondents called Mrs Julings as a witness when her evidence had limited applicability to the list of issue, but did not call other employees to whom the second respondent referred in his recollection of events in issue (for example Mr Corcoran).

[29]Recollections vary and they certainly did between the claimant and second respondent’s recounts of conversations between the two of them. Rarely did they agree on whether a conversation took place and when they did agree they spoke there was little common ground in what was discussed. Both the claimant and second respondent were unwilling to make factual concessions. It is our view that neither the claimant nor the second respondent were being entirely honest or transparent in their evidence to the Tribunal about their interactions: based on our findings on credibility and factual findings we conclude that the claimant has exaggerated these interactions to the Tribunal while the second respondent has sought, by being evasive, not to give us the full picture . In making this observation, we are mindful that untruthful evidence may have been given to mask guilt or fortify innocence.

[30]Both parties sought to rely on statements from former colleagues (the claimant) and former / current employees (the respondents) which were not contemporaneous to the issues in dispute and written after the commencement of these proceedings. It is curious that, and difficult to understand why, the individuals in question were not called to give evidence to this Tribunal. As the statements are not contemporaneous and the opposing party was not afforded the opportunity to challenge these statements in cross examination we have afforded their content little weight in making our findings of fact. Factual findings Employment

[31]The claimant started employment with the first respondent on 20 September 2021. Parties agree he was employed in the role of team support manager and his salary was £18.50 an hour. We have seen a contract of employment dated October 2022 (unsigned by either party) which states his role as Operations Manager and salary as £22 per hour. The respondents seek to rely on this document as the claimant’s contract of employment. The claimant says he did not receive or sign an employment contract at any time during his

[32]There is no evidence before us that the claimant received an offer letter setting out initial terms of his employment nor a contract of employment in 2021. By virtue of the date of the contract (October 2022) and the fact that in evidence the first respondent accepted that the claimant’s salary increased twice during his employment and that it was £22 in October 2022 we find that this contract cannot be the contract he was given at the start of his employment. Furthermore the respondents’ advisors (Peninsula) are informed in summer August 2023 the first respondent does not have a copy of an employment contract signed by the claimant. For these reasons, we find that the claimant was not given a contract of employment in September 2021.

[33]There is no evidence before us that the claimant received the October 2022 contract. When it was put to the second respondent that the claimant was not provided with an employment contract, he told us that he “spoke to [the claimant] and [the claimant] told [him] we do not need to have one.” He accepted that his response did not suggest that he had provided the claimant with an employment contract. Based on the second respondent’s evidence, and the fact that the contract is not signed by either party and there is no correspondence in the hearing file referring to the contract or evidencing that the respondents sent a copy of this (or any) contract to the claimant at the start of his employment we conclude that the claimant did not receive an employment contract at the start of his employment or any time thereafter. The second respondent’s evidence that it was the claimant who told him a contract was not necessary does not excuse the first respondent’s legal obligation to provide initial particulars at the start of employment and detailed particulars within the first two months. Claimant’s role

[34]The claimant says that in May 2022 he was promoted to Operations Manager. The second respondent denies this. The October 2022 contract records the claimant’s job title as “Operations Manager”. The second respondent told us that it was the claimant who made this amendment. When referred to a screenshot evidencing an online amendment to this document, the claimant told us he may have made the change. The question for the Tribunal is whether the respondents approved a new title for the claimant and, if so, what was that title.

[35]We have seen a WhatsApp exchange dated 7 April 2022 in which the second respondent tells the claimant: “You need to choose a title”. For this reason we conclude that the second respondent did agree that the claimant’s title at the start of his employment did not reflect his duties.

[36]The claimant and the second respondent agreed that they met on 9 May 2022. The claimant says this was an appraisal meeting. The second respondent says it was not, that the claimant did not have an appraisal. By his own admission, repeatedly the second respondent told us he does not get involved in administrative matters. That said, as the owner of the business, he was the claimant’s manager and it was the second respondent’s responsibility to conduct the claimant’s appraisal. We have seen the appraisal (preparation) form completed by the claimant and sent to the second respondent by email on 8 May 2022. The email states: “Hi Darren Appraisal notes attached for discussion tomorrow. I’ve linked it to the JD for structure. Andy”. The email attaches a document titled “Sole Bay / Shellfish Co Appraisal” for Andy Wix with an appraisal date of 9 May 2022. In the general comments section the claimant has typed “The broader mix of responsibilities is more representative of an Operations Manager and I feel my job title should reflect this”.

[37]The appraisal section not completed: by the cover email we find that the claimant was following usual appraisal procedure and sending his completed section for discussion with the second respondent at the meeting on 9 May. The second respondent told us he did not fill in an appraisal form. We find this was remiss of the second respondent. The documentary evidence before us is that the claimant made a proper attempt to have an appraisal and the second respondent was on notice. Based on his own concessions about not getting involved in administration we find that it was the second respondent who failed to action and complete the appraisal so the claimant was none the wiser as to whether his proposed title was agreed. We find, given the second respondent’s off-hand approach to the claimant’s attempt to have an appraisal, the claimant was unlikely to get certainty as to his new job title.

[38]Therefore, relying on the second respondent’s WhatsApp that the claimant should choose a title, the claimant did so (“Operations Manager”), suggested this title to the second respondent in his appraisal form and, in the absence of any objection from the second respondent (who was on notice this was the title the claimant wanted) the claimant adopted this title and amended the first respondent’s online records to reflect this. For these reasons, we find at that from May 2022 the claimant was the first respondents Operations Manager. 22 March 2023 email / licensing issues

[39]We have considered the document at page 205 of the hearing file; this is an email the claimant sent to the second respondent, which the second respondent accepts he received. We do not need to make findings as to whether the first respondent was in breach of its licensing for the sale of alcohol. The allegations relate to the claimant’s belief it was and the interactions between the claimant and second respondent in addressing these concerns.

[40]In this email the claimant raises three areas where he considers that the second respondent was in breach of its licencing obligations. The claimant puts forward action points, commenting that there may be repercussions for the business if his concerns are not addressed and suggests taking legal advice.

[41]On 27 March 2023 the claimant and the second respondent agree they discussed licensing matters and that the claimant would make an application to remedy any issues. The claimant follows up with an email the same day specifying the issues for which he would process the application. On 28 March 2023 the second respondent replies: “Thank you for outlining the current licensing situation, if you could please remedy as soon as possible”

[42]We find that the claimant raised licensing matters in the 22 March email as he was concerned the respondents were not compliant with licensing obligations. On 27 March the second respondent acknowledged that there may be issues, instructing the claimant to deal with this matter on 28 March. There is no evidence before us that the claimant complied with the 28 March instruction and remedied the issues he considered there were with the licensing. Given the concerns he expressed in the 22 March email (and to the Tribunal) it is difficult to understand why he did not action this request immediately at the end of March.

[43]The claimant alleges that licensing matters were next discussed on or before the 2 April and the second respondent told the claimant to “leave it as it is” and made it clear that he did not want the claimant to “take any steps in relation to rectifying ant breaches of licensing obligations”. The second respondent told us this recollection is a “complete fabrication”.

[44]Given the March email exchange and conservation, which took place only a few days before, we find it is simply not credible that the second respondent, having instructed the claimant to “remedy as soon as possible”, would U-turn in his instruction and tell the claimant to “leave it as it is” only a few days later. By the second respondent’s own admission he did not get involved in day to day running of the business. Indeed, had there been a complete change in position by the second respondent, given the concerns expressed by the claimant in the 22 March email, and given his role in the business, we would have expected the claimant to have challenged this with a follow-up email (as he did in relation to other matters for example a report from an environmental health officer (“EHO”)). He did not. Indeed, in his oral evidence the claimant accepted the next time he referenced licensing matters with the second respondent was in an email was 12 June 2023 (and we have found this is only an oblique reference – see below). For these reasons we prefer the second respondent’s evidence that the conversation on 2 April is a fabrication.

[45]The claimant alleges the concerns he raises in the 22 March email were not addressed by the respondents. We disagree. In the 28 March 2023 email the first respondent tells him to remedy the concerns he has raised about the licences as soon as possible. This is an instruction addressing the claimant’s concerns. Given our findings that the conservation on 2 April did not take place, this instruction still stood. The claimant had been directed to remedy his concerns by addressing any issues with the licences. There is no evidence before us that he did so.

[46]Furthermore, we find the claimant’s suggestion that he sent numerous correspondence raising his concerns inaccurate. The emails we have seen are the 22 March and 27 March emails and the 12 June email. When challenged about this by Mr Ashley, the claimant conceded that he had used the wrong word (“numerous”) and that “several or a couple” was a more accurate description. We find that the claimant exaggerated the amount of correspondence to fortify his allegation. May 2023: kitchen fire and remedial works

[47]On 1 May 2023 a fire at the first respondent’s premises destroyed a new kitchen (“Kitchen 2”) and the restaurant. As a result the first respondent had to recommission a mothballed kitchen, which have been used previously to service the takeaway before the new kitchen was added (we refer to the mothballed kitchen as “Kitchen 1”) in order to start trading again. Parties agree the fire caused some damage to the takeaway structure.

[48]The second respondent admitted that after the fire he aimed to reopen as soon as possible due to the lost income from the first respondent’s business being closed and the strain of having to finance the building works pending any insurance payout and continuing to pay staff salaries to retain them. In the circumstances this makes commercial sense. We accept this was his intention.

[49]The claimant alleges that during a conversation on 17 May 2023 he agreed with the second respondent that a plan for the takeaway structure: he says that Jessica Squire was present during this discussion. There is no documentary evidence on or around 17 May of this discussion, nor details in correspondence of what was agreed. If a structure was “agreed” we would expect there to be some recording of what the plan was (for example design / description / dimensions / floorplan / picture) to evidence that a meeting of minds and agreement. In his witness statement when addressing this point the claimant refers us to his 12 June letter. We have considered that letter; there are no details as to the type or design of takeaway structure he says he agreed with the second respondent. The 22 June 2023 letter sent by the claimant’s solicitor to the respondents refers to a “discussion” about the design of a takeaway structure, not an agreement. This aligns with the second respondent’s evidence that there had been discussion with the claimant and Jessica Squires about a small service shed surrounded by a screen wall. The second respondent told us what this is what was built.

[50]For these reasons we find that there was no agreed plan for the takeaway structure; the claimant and the second respondent had discussed what the takeaway structure might look like. The claimant has exaggerated this discussion and reinvented it as an agreed plan which should not be changed. 18 May conversation

[51]The claimant alleges that following a visit from an EHO on 17 May 2023 he recounted the EHO’s concerns to the second respondent on 18 May 2023. The second respondent told us he did not recall the claimant saying anything to him about this visit. Initially the second respondent suggested the EHO sent a report after this visit (telling us “they always send a report after a visit”). However, having located the 23 May email (admitted after the start of his evidence) the second respondent accepted there was no May report and he was recalling the report the first respondent received on 14 March 2023, following an EHO visit in February 2023.

[52]We have considered the email dated the 23 May 2023 which the claimant sent to the second respondent and Danny Corcoran. The email attaches the February report; at the start of the email the claimant says: “The last EHO [(the officer not report)] came last week was checking against the improvements ordered in this report [the February report attached to the email].” The email then makes references to paragraphs in the February report which need addressing. The email does not make reference to a conversation between the claimant and the second respondent after the 17 May EHO visit. Had the email been predated with a conversation, as the claimant alleges, we would have expected reference to be made to that conversation. Indeed, the email reads as if this is the first time the claimant is raising the outcome of the May EHO visit with the second respondent. Based on our interpretation of the plain wording of the 23 May email, we prefer the second respondent’s recollection and find that the claimant and the respondent did not discuss the EHO visit and environmental concerns on 18 May 2023. Stocking of fridge

[53]The claimant alleges that the second respondent instructed the team to stock the fridge with alcohol contrary to the claimant’s 18 May 2023 instruction. In his evidence the claimant says that on 18 May he instructed Elise to stock a new self-service fridge with non-alcoholic beverages. We have considered the WhatsApp messages for 18 May, in particular the claimant’s messages starting with “Bits while I’m off”, which include instructions directed to Elise. His does not give this instruction to Elise in this exchange.

[54]On 19 May 2023 it is agreed that the claimant was on annual leave. The claimant told us that while on holiday he looked at the first respondent’s social media and it was clear to him that the second respondent had told Elise to restock the fridge with alcohol; in his witness statement the he directs us to pages 214, 215, 216 and 379 of the hearing file. We have considered these documents. They do not support this assertion. We find that the claimant’s assertion the second respondent told Elise to restock the fridge with alcoholic drinks is based solely on his interpretation of a photograph he saw (which we have seen and which does show alcoholic drinks in the takeaway’s fridge). There is no evidence before us that alcoholic drinks were put in the fridge at the direction of the second respondent. The contemporaneous documentary evidence shows that second respondent contacted Elise on The Captain’s Table WhatsApp group on 20 May 2023. In the first message he says: “Hi Elise how is the harbour today?” We find that this question is self-evidently the first communication from the second respondent to Elise that day. The second respondent then requests a photograph of the stocked fridge and one is sent. This is the interaction; there is no direction from the second respondent to do anything with the fridge. Furthermore, there is no evidence that the claimant raised his concerns about the photograph when he saw it on 20 May or on his return from his holiday.

[55]For these reasons we find the claimant did not instruct Elise to stock the takeaway fridge with non-alcoholic drinks only and there was no instruction on 20 May from the second respondent telling her to put alcoholic drinks in the same fridge. Recommissioning Kitchen 1

[56]Parties agree they had a discussion in kitchen 1 on 23 (the claimant says) or 24 May 2023 (the second respondent says) about the recommissioning of that kitchen and that Mr Coe was also present. The claimant alleges he raised health and safety concerns about the state of Kitchen 1 (specifically food hygiene) and followed these up in his email of 23 May. We consider the wording of the 23 May email key. We have already found this does not refer to a conversation, therefore we find that any conversation that may have occurred did not predate this email. It is logical this email triggered a conversation given parties agree they had one, either on the afternoon of 23 May or 24 May.

[57]Mr Coe’s evidence is that the claimant expressed his concerns about the condition of the kitchen. During this conversation, the second respondent accepts he became cross and resented the claimant’s intervention. We have considered the parties recollections of this conversation. We find they agree that during the conversation they disagreed about the condition of the kitchen, the work required to recommission it and the timescale for doing so and had a heated discussion about the same. We find that given the timing of the email the discussion included matters discussed in the February EHO report

[58]The claimant alleges that while he was absent on 26 May 2023 the second respondent instructed Jessica Squire to arrange to reopen the restaurant on 1 June 2023 contrary to an agreement between the claimant and the second respondent to “reopen the restaurant when it was ready”. The second respondent told us he cannot remember exactly what he said to whom; however, he accepted that he wanted to open the restaurant as soon as possible as he was losing money from having to pay staff to keep them employed without having income from the business. We accept this was his motivation.

[59]There is common ground in the claimant’s and second respondent’s recollections of this conversation. We find that the claimant and the second respondent did agree that the restaurant would be reopened “when ready”. However, as evident from our findings about their discussion a few days earlier, they disagreed as to what was meant by “ready”. We find there was not a meeting of minds between the claimant and the second respondent as to what constituted the restaurant being ready to reopen.

[60]The claimant alleges that he agreed a plan for the layout of Kitchen 1 with the second respondent. At the hearing he told us that this is the plan recorded in WhatsApp group messages on 28 and 29 May 2023. We have seen the WhatsApp messages the claimant sent to The Captains Table group on 28 and 29 May 2023. On 29 May 2023 he wrote: “Me Mandy and Roy went through a rough prep list and layout of the kitchen….. we worked it so it flow nicely like this”

[61]We have considered a picture he loaded to this WhatsApp group. The WhatsApp communication does not evidence that the claimant’s proposed plan was agreed by the second respondent. Indeed the claimant’s message (“we went through…a layout of the kitchen”) reflects no more than a discussion he had had with colleagues. The picture is not presented as a final plan, nor is it agreed by the second respondent. Indeed, the 22 June 2023 letters that the claimant’s solicitor sent to the respondents, describe a discussion and not final plan. We find that the claimant has exaggerated the discussion.

[62]For these reasons we prefer the second respondent’s evidence that the claimant did not agree a plan for Kitchen 1 with him. Nothing had been finalised. Therefore, it follows that, as there was not an agreed plan, it could not be amended by the second respondent on 30 or 31 May 2023 in the claimant’s absence. We find that at this time the layout for Kitchen 1 was still under discussion. Takeaway structure

[63]While the claimant was on leave (5 – 12 June 2023) a takeaway structure was built by the first respondent. 12 June 2023 email

[64]On 12 June 2023 the claimant completed and sent an email to the second respondent. We have considered the email (pages 232 to 234 of the hearing file). The claimant expresses concerns about the employment relationship. At the hearing the claimant told us that the purpose of the email was “to stimulate” a conversation with the second respondent. We agree that this intention is evident from the wording of the email. The claimant makes a passing reference to “licensing issues” but there is no elaboration about the claimant’s concerns at this time, or previously. The reference is to a point in time as context for personal concerns the claimant is raising about his employment relationships with the respondents The claimant agreed in cross examination that the email does not raise other regulatory matters.

[65]The claimant alleges that the second respondent deliberately disclosed this email. The second respondent accepts he shared the email with colleagues. The claimant also alleges that the disclosure was negligent (failing to take proper care over something). We find that sharing the email with senior managers in a business is not negligent: it is not the case that the second respondent left the email lying around for colleagues to find (that would be negligent); the second respondent made a conscious decision to share the email with colleagues who were involved in the events complained about.

[66]The claimant alleges that the concerns he raised in this email were not addressed by the respondents. By his own admission, the reason the claimant sent this email was to stimulate a conversation. We have found that the focus of his email was to raise issues in his employment relationship with the respondents and not licensing or regulatory concerns. We find that the claimant had still not addressed the licensing issues at this time (despite the March instruction to do so). In evidence the second respondent told us that he signed paperwork for licences on 14 June 2023. The claimant does not dispute this in his evidence.

[67]The respondent accepts that on 13 June 2023 he changed the passwords to various of the first respondent’s accounts, telling us the reason he did so was because, following receipt of the 12 June email, he felt that he could no longer trust the second claimant. 14 June 2023 conversation

[68]We have considered whether the conversation on 14 June addressed the concerns the claimant raises in his 12 June email. We have found the issues raised in that email are not regulatory or licensing but personal concerns the claimant had about his employment relationship at that time. Therefore, the question for the Tribunal is whether the 14 June conversations addressed the claimant’s employment situation at that time. We find it did.

[69]The claimant and second respondent agree they had a conversation on 14 June and they discussed the possibility that the claimant might leave the first respondent’s employment. This is reflected in the email the claimant sent to the second respondent the following day: he states: “Hey Darren Further to our chat yesterday, should I feel I have no option to resign can you clarify what notice etc would be required and when I would get paid up to? Obviously I didn’t sleep well last night and subsequently have a ripping headache so will do some work from home today and schedule interviews for tomorrow to get some team in swiftly. Andy”

[70]The claimant and second respondent disagree about the tone of this conversation. The claimant alleges that the second respondent became sarcastic and threatening. The second respondent denies the claimant’s assertion he told the claimant he would need to accept legal and regulatory breaches or he would no longer have a future with the first respondent. The second respondent accepts that he told the claimant that he was not happy with the claimant thinking he “knew better than me how to run my business and refusing to follow my instructions” and that he offered the claimant a month’s notice to leave. We find this offer is an attempt to address the claimant’s employment relationship concerns.

[71]Mr Ashley suggested to the claimant that, if the tone of the 14 June conversation was as he recalls in his evidence to the Tribunal, the claimant would not have addressed the second respondent in the friendly manner he did in his email of 15 June [“Hey Darren”] nor would he have referred to the previous day’s exchange as a “chat”. We agree. Indeed, on 16 June the second respondent sent a draft of an email he wanted to send to the claimant to Peninsula for review. The draft states: “After our informal chat yesterday….” We find this communication further contemporaneous evidence as to the tone of the 14 June conversation. Both the claimant and respondent refer to it at the time as a “chat”.

[72]For these reasons we prefer the second respondent’s recollection of the 14 June conversation and his evidence to the Tribunal that he was “open [minded]…. I wanted to see where [the claimant] was and wanted to see the attitude and the ego, had not made any decisions [about the claimant’s future] at that time”. We find that the claimant has exaggerated the second respondent’s tone in this discussion and his comments about the running of the business to references to legal and regulatory breaches. Having heard the evidence of the second respondent over almost 3 days it is our assessment that the second respondent would not use this language; it is too formal.

[73]Clearly the claimant and the second respondent disagreed about the running of the business. We find these differing viewpoints are the crux of the issues before this Tribunal; they present in the contemporaneous documentary evidence as some kind of power struggle. However, we find as the owner and sole director of the business it was the second respondent who had the ultimate say and the claimant could not accept this. We find a difficult but mild mannered conversation took place about the employment relationship in which the claimant was told he had to defer to the ultimate decisions of the second respondent as the owner of the business. In this context the claimant questioned his future at the business, hence making the enquiries in his 15 June email. The contemporaneous evidence is that the relationship was strained but civil at this time.

[74]The claimant alleges that after this conversation on 14 June 2023 he was asked by Elise Garnham if he had been dismissed. Ms Garnham has not given evidence to this Tribunal and therefore the respondents have not had the opportunity to challenge this directly with her. However, in a WhatsApp exchange on 15 June we have seen that Ms Garnham, in response to the claimant’s message telling her he is working from home, asks the him “are you working notice or anything”. We cannot see the claimant’s first message in this trail which prompts Ms Garnham’s response: “oh ok fingers crossed for you”. However, the reasonable interpretation of this message is that Ms Garnham was responding to something the claimant said (and we have only been given a snapshot of the conversation) and did not ask the claimant any questions of her own volition, as the claimant is suggesting to the Tribunal. We find that in this allegation the claimant has put words in Ms Garnham’s mouth that she did not actually use.

[75]Furthermore, the messages continue with the claimant saying “anything you can get me to incriminate” . This supports our findings that the claimant has been calculated in the presentation of his recollections and evidence to the Tribunal, and indeed was calculated in his approach to the respondents before bringing these proceedings. For these reasons we find that the discussion the claimant had with Ms Garnham was as a result of the claimant’s messages and behaviour and not the respondents. Claimant’s absence

[76]After this conversation the claimant was signed off sick (we have seen a sick note in which the claimant was declared not fit for work from 15 June 2023). Parties agree he did not return to work during the remainder of his

[77]The second respondent accepts that he did not make any enquiries as to the claimant’s health or wellbeing or take his health and wellbeing it seriously. He says because he did not believe the claimant’s sickness was genuine. In any event the letter from the claimant’s solicitor dated 16 June 2023 states (following a reference to the claimant’s ill-health at that time): “In the meantime, we would request that any further communication with our client [Tribunal emphasis] are conducted via our firm to avoid exacerbating his condition further.”

[78]The claimant cannot direct his solicitors to tell the respondents not to contact him and then complain to this Tribunal that they did not. We find that, whatever his assessment of the claimant’s sickness, the second respondent was complying with the direction from the claimant’s solicitor not to contact him. Letter dated 16 June 2022

[79]On 16 June 2023 the claimant’s solicitor wrote to the respondents (pages 261 to 262 of the hearing file). The letter reiterates the claimant’s concerns about the licensing. Again, we find this narrative disingenuous given that in March 2023 (when the claimant first raised his concerns), the second respondent had directed the claimant to remedy any issues the claimant considered there were. Therefore, based on our findings above, we find that this letter was factually inaccurate. Had the claimant been genuinely concerned about licensing matters (as this letter suggests) he would have fixed any licensing issues when told to do so by the second respondent in the March.

[80]The claimant alleges that the concerns he raises in this letter were not addressed by the respondents. Again, this allegation is disingenuous. Our finding is that he had been told to sort out licensing and had not done so. Indeed, the contemporaneous Peninsula records evidence that the second respondent sent this letter to the respondents’ advisors and was told by them to treat the letter as a grievance. While the claimant may not agree with the conclusions in the grievance outcome letter or the manner in which the respondents’ enquiries were conducted, it is not the case the concerns were not addressed. We find that the respondents took steps to seek professional advice on day of receipt. Letter dated 22 June 2022

[81]On 22 June 2023 the claimant’s solicitor wrote to the respondents (pages 267 to 273 of the hearing file). We have considered this letter. The solicitor recounts the claimant’s concerns about: work status of a colleague; whether the company had the appropriate alcohol licences; the validity of insurance claims; health and safety concerns about the preparation of food in Kitchen 1; health and safety concerns about the storage of LPG cannisters; and possible breach of planning regulations. The Peninsula records evidence that the respondents sent this letter to the respondents’ professional advisors the day it was received; the advice from them was it should form part of a grievance and this process was actioned in line with the respondents’ grievance policy. In this regard we find the letter was addressed by the respondents in a grievance outcome letter after the claimant was invited to a grievance meeting (which he did not attend; the claimant’s solicitor wrote to Peninsula stating that the claimant was happy for matters to be considered on the papers). Again, the claimant may not agree with the outcomes but that it is not the allegation he makes and, therefore, it is not a matter for this Tribunal.

[82]The claimant alleges that the second respondent breached his confidentiality by disclosing the 22 June 2023 to “at least Abby Breen, Elise Garnham and anyone with access to the Email, Danny Corcoran, Alison Emerson, and Jessica Squire”. The second respondent accepts he shared the letter but denies this was a breach of confidentiality, saying he did so as the letter “was a serious attack on my company” and that he “did not know he could not share it with colleagues and employees”.

[83]Where allegations are made against an employer it is reasonable to share the allegations within the business; indeed this is a prerequisite to investigating factual allegations. Labelling a letter sent to a company private and confidential means it is private and confidential to the company, which includes those employees with whom management consider it reasonable to share. We find it naive of the claimant to expect this would not happen, given the allegations he makes.

[84]The claimant alleges that staff were directed to refer to him as “he who shall not be named”. Ms Garnham’s evidence (which could not be challenged by the respondents as the claimant did not call her as a witness) is that the claimant was referred to in this way [“you were called “he who should not be named for so long”] but she does not say the second respondent (or anyone else) gave this instruction. The second respondent denies that and there is no contemporaneous documentary evidence the second respondent gave such a direction. Indeed in response to this message the claimant uses a laughing emoji which suggests that, at that time, he found the reference amusing not offensive.

[85]We are mindful that this exchange was in the context of the respondents having been told by the claimant’s solicitors not to contact the claimant. To the extent the claimant’s colleagues referred to him in this way, we find they did not do so on the instruction of the second respondent but because the respondents were complying with a request not to contact him. Termination of employment

[86]On 25 August 2023 it is agreed that the claimant resigned with an effective date of termination of 28 August 2023.

[87]The claimant alleges that while he was on sickness leave (we find this is the period 15 June 2023 to 28 August 2023) the respondents initiated and pursued spurious and unfounded accusations against him. The claimant lists the factual basis for these claims at paragraphs 33-35 of the Particulars of Claim. These are: 87.1. An invitation to retract his resignation (a letter from Peninsula on behalf of the respondents dated 30 August 2023, paragraph 33); 87.2. An invitation to a disciplinary hearing (a letter from Peninsula on behalf of the respondents dated 30 August 2023, paragraph 34) setting out factual allegations; and 87.3. A letter dated 19 September 2023 upholding some of the misconduct alleged in the second 30 August letter (paragraph 35).

[88]The communications relied on were sent after the claimant’s resignation and therefore after the end of his sick leave. The second letter dated 30 August and the September letter related to alleged conduct during the claimant’s employment. We were not taken to any evidence to indicate if and when a disciplinary investigation was undertaken or commissioned by the respondents. Therefore, we cannot establish when the investigation started. In this regard the claimant has not fulfilled his burden to prove his case and we must find that the respondent did not initiate allegations during his sick leave.

[89]As to whether the claimant pursued allegations during the claimant’s sick leave, pursuing would first involve notifying the claimant of the allegations. The timeline evidences that this occurred outside the period of sick leave. As we have found the investigation was neither initiated or pursued in the period of sick leave, we do not need to consider whether the allegations in the 30 August letter or findings in 9 September are spurious or unfounded, as we have not upheld, as a matter of fact, the first part of the allegation.

[90]The claimant says he was removed from all company accounts including WhatsApp whilst he was on sick leave. He was. We find the respondents were acting on the direction of the letter from the claimant’s solicitor dated 16 June 2023 not to contact him. The letter specifically makes this direction because the claimant is unwell. We find that in removing the claimant from company accounts and WhatsApp the respondents were respecting a request from the claimant. Holiday pay

[91]The claimant alleges that the respondents failed to pay his accrued but untaken holiday pay on his resignation. The respondents accept they did not pay it at the time. Having seen the letter from the respondents’ accountant we find they did not do so as pending advice as to the amount owed. It was paid on receipt of the advice from the accountants and the accountant’s acknowledgement it was their error. Post resignation

[92]The claimant alleges that the respondents sought to persuade him to retract his resignation. The respondents accept that the claimant was invited to retract his resignation. The contemporaneous documentary evidence from Peninsula is that it was not the respondents who decided to take this approach; they did so following advice from their professional advisors.

[93]The claimant alleges that the respondent suggested that the claimant would have been dismissed for gross misconduct in any event had he not resigned. The respondents accept that this was their position at that time.

[94]The claimant alleges that the respondents failed to deal with his grievances properly and in a reasonable timeframe. This is not accepted by the respondents. We have seen the 21 August 2023 communication from the claimant’s solicitor in which the solicitor tells Peninsula that he was happy for his grievances to be dealt with as a paper exercise. In this context he does not raise any concerns about the respondents’ approach. Furthermore, there is no evidence that the solicitor retracted the direction that the respondents should not contact the claimant directly. Therefore, the reality is that the respondents could not contact the claimant, they conducted the investigation on the papers (in line with his request) and reached a conclusion. To that extent the investigation was proper in that it accorded with the claimant’s position at that time. That the claimant does not agree with the conclusions reached does not detract from this. The letters were accepted as grievances in the June and an outcome letter sent 20 September. The claimant did not explain to the Tribunal why he considered this timeframe unreasonable. In the circumstances of the respondent dealing with it on the papers and making all enquiries we find it was.

[95]Based on these findings it is our assessment that the claimant and the second respondent had a good working relationship and friendship (accepted by both men and evidenced by the pay rises and tone of their WhatsApp interactions). Their relationship started to deteriorate in March 2023 due to their different views on how the business should be managed. This deterioration accelerated following the 1 May 2023 fire, when they had very different views on how the business should emerge from this very unfortunate event, particularly how to recommission Kitchen 1.

[96]By June 2023 their relationship had broken down, we find as a result of a power struggle as to who had the final say in decisions which had to be made after the fire. The breakdown in the relationship is evidenced by the comments the claimant makes in the 12 June email and his subsequent decision to instruct solicitors to write to the respondents and the second respondent’s evidence that, following receipt of these, he would have dismissed the claimant immediately if he could have done so. Relevant law Jurisdiction – time limits

Relevant law

[97]Section 48 of the Employment Rights Act 1996 provides: (1)An employee may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section ….. (3)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. (4)For the purposes of subsection (3)— (a)where an act extends over a period, the “date of the act” means the last day of that period, and (b)a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer, a temporary work agency or a hirer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done. …. Section 1 of the Employment Rights Act 1996: Statement of initial employment particulars.

[98]Section 1 of the Employment Rights Act 1996 provides: (1)Where a worker begins employment with an employer, the employer shall give to the worker a written statement of particulars of employment. (2)Subject to sections 2(2) to (4)— (a)the particulars required by subsections (3) and (4) must be included in a single document; and (b)the statement must be given not later than the beginning of the (3)The statement shall contain particulars of— (a)the names of the employer and worker, (b)the date when the employment began, and (c) in the case of a statement given to an employee, the date on which the employee’s period of continuous employment began (taking into account any employment with a previous employer which counts towards that period). (4)The statement shall also contain particulars, as at a specified date not more than seven days before the statement (or the instalment of a statement given under section 2(4) containing them) is given, of— (a)the scale or rate of remuneration or the method of calculating remuneration, (b)the intervals at which remuneration is paid (that is, weekly, monthly or other specified intervals), (c)any terms and conditions relating to hours of work including any terms and conditions relating to— (i)normal working hours, (ii)the days of the week the worker is required to work, and (iii)whether or not such hours or days may be variable, and if they may be how they vary or how that variation is to be determined. (d)any terms and conditions relating to any of the following— (i)entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the worker’s entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated), (ii)incapacity for work due to sickness or injury, including any provision for sick pay,... (iia)any other paid leave, and (iii)pensions and pension schemes, (da)any other benefits provided by the employer that do not fall within another paragraph of this subsection, (e)the length of notice which the worker is obliged to give and entitled to receive to terminate his contract of employment or other worker’s contract, (f)the title of the job which the worker is employed to do or a brief description of the work for which he is employed, (g)where the employment is not intended to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end, (ga)any probationary period, including any conditions and its duration, (h)either the place of work or, where the worker is required or permitted to work at various places, an indication of that and of the address of the employer, (j)any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made,... (k)where the worker is required to work outside the United Kingdom for a period of more than one month— (i)the period for which he is to work outside the United Kingdom, (ii)the currency in which remuneration is to be paid while he is working outside the United Kingdom, (iii)any additional remuneration payable to him, and any benefits to be provided to or in respect of him, by reason of his being required to work outside the United Kingdom, and (iv)any terms and conditions relating to his return to the United Kingdom. (l)any training entitlement provided by the employer, (m)any part of that training entitlement which the employer requires the worker to complete, and (n)any other training which the employer requires the worker to complete and which the employer will not bear the cost of. (5)Subsection (4)(d)(iii) does not apply to a worker of a body or authority if— (a)the worker’s pension rights depend on the terms of a pension scheme established under any provision contained in or having effect under any Act, and (b)any such provision requires the body or authority to give to a new worker information concerning the worker’s pension rights or the determination of questions affecting those rights. (6)In this section “probationary period” means a temporary period specified in the contract of employment or other worker’s contract between a worker and an employer that— (a)commences at the beginning of the employment, and (b)is intended to enable the employer to assess the worker’s suitability for the Employment Rights Act 1996 (“ERA”): Detriment for Making a Protected Disclosure.

[99]Section 43A ERA provides: In this Act a “ protected disclosure ” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.

[100]Section 43B ERA defines “qualifying disclosure” as: In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

[101]A disclosure within the meaning of the Act includes “any disclosure of information”. A disclosure is made even when the person receiving it was already aware of that information: s43L ERA.

[102]The claims are made against the claimant’s employer; therefore, they fall within section 47C of the Employment Rights Act 1996, which provides: (1)A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A)A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a)by another worker of W's employer in the course of that other worker's employment, or (b)by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B)Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C)For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D)In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker— (a)from doing that thing, or (b)from doing anything of that description. (1E)A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if— (a)the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and (b)it is reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B). (2) This section does not apply where— (a)the worker is an employee, and (b)the detriment in question amounts to dismissal (within the meaning of Part X). (3)For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “ worker ”, “ worker’s contract ”, “ employment ” and “ employer ” have the extended meaning given by section 43K.

[103]The Tribunal was referred to the following cases: 103.1. Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] IRLR 38

at paragraph 24 for guidance on the meaning of “information”; 103.2. Kilraine v LB Wandsworth

[2018] EWCA Civ 1436

for guidance as to whether “a particular statement or disclosure is a ‘disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the [matters set out in subparagraphs (a) to (f)]”; 103.3. Williams v Michelle Brown AM

UKEAT/2004/19

) for guidance on the 5 stage test the ET should apply; and 103.4. Dobbie v Felton t/a Feltons Solicitors

[2021] IRLR 679

for guidance on the public interest test. Detriments

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

[105]When considering whether the alleged treatment amounts to a detriment we considered the Court of Appeal guidance in Jesudason v Alder Hay Children’s NHS Foundation Trust

[2020] EWCA Civ 73

at pargraphs 27-28, noting the test is the same as in discrimination law, i.e.(a) might a reasonable employee consider the relevant treatment to constitute a detriment and

(b) did C do so?

[106]To determine whether any detriments were on the grounds that the claimant had made a protected disclosure, we note that by s48(2) ERA it is for the respondent to prove the ground on which the acts were done. This issue requires an analysis of the mental processes (conscious or unconscious) which caused a respondent so to act, rather than an application of the “but for” test (Harrow v Knight

[2003] IRLR 140

). The question is whether the protected act(s) materially influenced Rs’ treatment of C (Fecitt v NHS Manchester

[2011] EWCA Civ 1190

at paragraph 45). Section 103A Employment Rights Act 1996: automatic unfair dismissal

[107]Section 103A Employment Rights Act 1996 provides: An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure Section 95(1)(c) Employment Rights Act 1996: constructive unfair dismissal

[108]By s95(1)(c) ERA, for the purposes of Part X ERA, an employee is dismissed if: The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

[109]We were referred to the case of LB Waltham Forest v Omilaju

[2005] ICR 481

EWCA at paragraph 14 as follows: The following basic propositions of law can be derived from the authorities: 1. The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1978] IRLR. 2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA

[1997] IRLR 462

, 464 (Lord Nicholls) and 468 (Lord Steyn). I shall refer to this as ‘the implied term of trust and confidence’. 3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd

[1981] IRLR 347

, 350. The very essence of the breach of the implied term is that it is ‘calculated or likely to destroy or seriously damage the relationship’ (emphasis added). 4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at p.464, the conduct relied on as constituting the breach must ‘impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer’ (emphasis added). 5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at para. [480] in Harvey on Industrial Relations and Employment Law: ‘[480] Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the ‘last straw’ which causes the employee to terminate a deteriorating relationship.’

[110]We note from Nottinghamshire CC v Meikle

[2004] EWCA Civ 859

at paragraph 33 that it is not necessary that the repudiatory breach be the only or principal reason for the resignation. Analysis and conclusion Time limits

[111]The respondents submit that any events about which the claimant complains which are found to have taken place before 26 April 2023 may not have been brought in time. We have considered the date the claim form was presented and the dates of early conciliation applying the legal test set out in section and agree with the respondents that 26 April 2023 is the correct cutoff date . Therefore we must conclude that any events about which the claimant complains which took place before 26 April 2023 are out of time and the Tribunal does not have jurisdiction to consider them, unless we agree with the claimant that the events about which he complains are continuing acts.

[112]The events which predate 26 April 2023 are: 112.1. The second respondent’s aggressive and dismissive attitude; and 112.2. The claimants concerns about the respondents’ compliance with licencing regulations.

[113]We have found that: 113.1. The claimant raises concerns about the second respondent’s behaviour towards him in early April 2023. Leaving aside whether these concerns were justified, he continued to reference these concerns through his solicitors in June 2023. 113.2. Initially the claimant raised concerns in March 2023 and (leaving aside whether these concerns were justified) the evidence before the Tribunal is that he was still raising these concerns in June 2023.

[114]Therefore we conclude that the raising of these concerns were continuing acts and therefore in time. We have considered the merits of these allegations in our conclusions below. Section 1 Employment Rights Act 1996: statement of initial particulars

[115]We must determine whether the respondents failed to provide the claimant with a statement of initial particulars of employment at the beginning of his employment. The respondents have the burden to prove they did. The only employment contract before us dated October 2022. It is not signed by either party. We have found the claimant did not receive an offer letter outlining the terms of his employment in September 2021 nor did he receive a contract to sign at any time during his employment. Indeed, when the respondents’ legal advisors asked for a copy of the claimant’s signed contract in summer of 2023 they were told there the respondents’ did not have a signed contract.

[116]For these reasons we conclude that the claimant did not receive initial particulars at the start of his employment nor did he receive a contract during the first 2 months of his employment. Protected disclosures

[117]Apply our findings of fact, we have consider each of the alleged protective disclosures. The claimant’s email dated 22 March 2023 (page 205 of the hearing file)

[118]We have found that in this email the claimant raises three areas where he considers that the respondents are in breach of their licencing obligations. The claimant puts forward action points, commenting that there may be repercussions for the business if his concerns are not addressed and suggests taking legal advice. We conclude that this constitutes a disclosure of information. We consider that the claimant’s concerns were raised in the public interest as evidenced by his reference to repercussions for the business and the need to obtain legal advice.

[119]In determining whether the claimant believed that this email was sent in the public interest we have considered the summary set out by the EAT in Dobbie v Felton t/a Feltons Solicitors

[2021] IRLR 679

at paragraph 27 and specifically the guidance that a belief that the disclosure is in the public interest does not have to be the predominant motive in making it. It is our judgment that it is in the public interest to ensure that establishments selling alcohol have the correct licensing provision in place and by referencing the three areas the claimant is identifying concerns that the public must only be sold alcohol to drink near the business under the correct licences. In his evidence to the Tribunal the second respondent has accepted he had a good working relationship with the claimant at this time. We conclude there was no bad faith motivation to this email; the claimant’s aim in sending it was to ensure compliance with licensing laws regulating the sale of alcohol. It is also irrelevant if there was a breach of licensing law or not. It is sufficient for the claimant to believe there was a breach, which his suggestion legal advice is needed evidences, as well as evidencing the belief was reasonably held by the claimant.

[120]For these reasons, we conclude that the 22 March 2023 email is a qualifying disclosures pursuant to s.43B ERA 1996 tending to show matters regulated by the Licensing Act 2003. The environmental health issues reported on or around 18 May 2023 (oral conversation)

[121]In our findings of fact, for the reasons stated above, we have preferred the second respondent’s recollection that the claimant and he did not discuss the EHO visit and environmental concerns on 18 May 2023. As we have found the conversation did not take place as alleged by the claimant, it follows that it cannot satisfy the test of being a qualifying disclosure. The claimant’s discussions with the Second Respondent during the week commencing Monday, 22 May 2023 relating to the opening of the restaurant. (oral conversation)

[122]We have found that there was a conversation this week (on 23 or 24 May 2023) in which the claimant and the second respondent discussed the condition of Kitchen 1 but disagreed about the work required to recommission it and the timescale for doing so. We have found that given the timing of the claimant’s email about the February EHO report, this discussion included information referenced in that report. We conclude that in referencing points raised by an environmental health officer in a report, the claimant made and believed he was raising matters pertaining to food safety in this conversation, not least as health and safety inspections are conducted in the public interest. Given the claimant sent the EHO report to the second respondent on 23 May 2023, we conclude his concerns at this time were reasonably held. For these reasons we conclude that the conversation about the state on Kitchen 1 in the week of 22 May 2023 amounted to a qualifying disclosures pursuant to s.43B ERA 1996 in which the claimant expressed his concerns that the respondents were failing to comply with legal obligations regulating food safety The claimant’s email of 12 June 2023 (pages 232 -234 of the hearing file)

[123]We have found that in his email dated 12 June 2023 the claimant expresses concerns about his employment relationship with the respondents. He provides information about the same to illustrate his views. By his own admission the reason the claimant sent this email was to stimulate a conversation with the second respondent. We have found that the focus of this email was issues in his employment relationship and not licensing or regulatory concerns. We have found that while the claimant makes a passing reference to “licensing issues” he does not elaborate about these concerns in the email and that the email does not convey any concerns about licensing. It is our judgment of the wording in this email that the reference to “licencing issues” is a point in time reference to time stamp the point at which the claimant says his employment relationship with the second respondent changed (analogous to a statement “I have not been happy since I returned from my holiday). The information being conveyed by the claimant is that he has been concerned about his employment relationship with the respondents since he raised licensing issues; the email is not raising licensing issues per se.

[124]The contents of this email are manifestly personal to how the claimant is feeling about his employment at this time and has been feeling since he raised licensing issues. The claimant’s personal concerns are not matters in the public interest. For these reasons we conclude that the 12 June 2023 email is not a qualifying disclosure. . The claimant’s Solicitors letter of 16 June 2023 (pages 261-262 of the hearing file)

[125]We have found that the letter dated 16 June 2023 sent by the claimant’s solicitor to the respondents reiterates the claimant’s concerns about the licensing. However, this is not a new disclosure; the letter references the claimant’s March 2022 email and repeats the concerns he raised at that time. We consider the wording of the June letter key. The letter is drafted in the past tense and is describing an event in the past, namely the sending by the claimant of his March 2023 email. This document is the solicitor summarising the position as it was in March 2023 when the claimant sent his email.

[126]A description of a protected disclosure isn't necessarily a new disclosure itself. A description can provide context and detail about an existing disclosure, but it doesn't create a new one. In any event, the letter is describing and summarising events which have happened in the past. For these reasons we conclude that it is not a qualifying disclosure. It repeats a disclosure made in March as historical context for the claimant’s current personal frustrations with his employment relationship. The claimant’s Solicitor’s letter of 22 June 2023 (pages 267 to 273)

[127]In our judgment the 22 June 2023 is also a communication summarising what had happened previously (past tense), and not a new protected disclosure in itself. This is evidenced by the wording at the top of page 271, which states: “Our client’s disclosures regarding concerns of the Company’s legal obligations with regard to food safety / health and safety and failure to comply with the relevant licensing laws amounted to protected disclosures ……These disclosures were made in good faith by the claimant

[128]As with the 16 June letter, this letter refers to matters which have happened in the past (Tribunal emphasis of past tense); in our judgment this letter is a summary the 22 March email and May conversation. The contents of this letter do not make separate or additional qualifying disclosures; they provide historical context for the disclosures already made by the claimant. Indeed, we consider it disingenuous of the claimant to instruct his solicitor to reference licensing matters when this was an issue he had been asked to

remedy

[129]Therefore, we conclude that only two of the communications relied on by the claimant are protected disclosures: the March email and May conversation. Detriments

[130]First, we must determine whether, as a matter of fact, the respondents (or either of them) did the things alleged by the claimant. If the acts did not happen at all, or in the manner alleged by the claimant, they cannot amount to detriments as the alleged facts have not been upheld by the Tribunal.

[131]We have found that the following things did not happen at all or in the manner alleged by the claimant and therefore cannot be detriments: 131.1. The reluctance/and or refusal of the second respondent to allow the claimant to address matters relating to the licensing issues from 1 April 2023. We have found that, in an email to the claimant dated 28 March 2023, the second respondent told the claimant to remedy any licensing issues as soon as possible and after this the second respondent left the matter in the claimant’s hands. We have found that subsequent conversation (alleged by the claimant) about licensing matters was a fabrication. There is no detriment. 131.2. The second respondent’s aggressive and dismissive attitude towards the claimant from 1 April 2023. “Aggressive and dismissive” are subjective words open to interpretation. In his Particulars of the Claim the claimant does not state what was said or done to him (and when) that he considered aggressive and dismissive. Given this lack of specificity we have taken the claimant’s case at its highest and considered the interactions with the second respondent described by the claimant in his witness statement and his answers when he was questioned about these by Mr Ashley. We have found: 131.2.1. the claimant’s description of the 2 April conversation a fabrication (so it follows there is no detriment); and 131.2.2. the 14 June interaction was at the second respondent’s instigation and, while strained, was both parties agreeing that the employment relationship may need to come to an end. We have found that it is reasonable for a business owner to tell managers and employees that he wants to run the business a particular way (we have not found that the second respondent told the claimant he would run it illegally). While the claimant may have not agreed with the second respondent wanting to run the business his way, it is our judgment this is the owner’s prerogative and not dismissive behaviour. There is no detriment as alleged. 131.3. We have found that on 20 May 2023 the second respondent did not instruct the team to stock the fridge with alcohol contrary to the claimant’s previous instructions. It is our finding that the claimant did not give any instruction to stock the fridge with non-alcoholic drinks only. In this regard there was no undermining. In any event, we have found the second respondent did not give an instruction to stock the fridge with alcoholic drinks. There is no detriment as alleged. 131.4. We have found that there was no agreed kitchen plan for Kitchen 1 as alleged by the claimant. Therefore, there was no plan for the second respondent to amend. He did not make any amendments to any kitchen plan. There is no detriment as alleged. 131.5. We have found there was no plan for a takeaway structure agreed between the claimant and second respondent during week of 17 May 2023. Therefore it follows there was no plan for the takeaway structure for the second respondent to contradict. The takeaway structure was built on the direct instruction of the second respondent. There is no detriment as alleged. 131.6. We have accepted the respondent’s evidence that there was a disclosure of the email but this was caused by the respondents’ advisors, Peninsula, who sent it to the Sole Bay group email address which included several colleagues could access, contrary to instructions. Therefore, we conclude the disclosure was neither deliberate nor negligent on the part of the respondents. There is no detriment. 131.7. We have found that the second respondent did not give an ultimatum to the claimant that he had to ignore the first respondent’s illegal and unethical practices or that he would be forced out of the first respondent, on 14 June 2023 or at all. We have found that while the claimant and second respondent did have a strained discussion on 14 June at which they discussed the claimant’s future at the business, no ultimatum was given by the second respondent and he did not use the words alleged. There is no detriment as alleged. 131.8. We have found that the claimant had not been forewarned of the second respondent’s intention to remove the claimant from the first respondent on or before 14 June. We have found the conversation with Ms Garnham initiated with something the claimant said and she did not use the words alleged by the claimant. There is no detriment as alleged. 131.9. We have found that the respondents did address the claimant’s concerns as set out in his letters of 22 March 2023 (by the second respondents reply dated 28 March), 12 June 2023 (by the second respondent requesting the meeting on 14 June), 16 June (by forwarding it to the respondents’ legal advisors the same day) and 22 June (by forwarding it to the respondents’ legal advisors the same day). The concerns may not have been addressed in a manner considered appropriate by the claimant (this is not his allegation) but the respondents did act swiftly to address them. There is no detriment as alleged. 131.10. We have found that the respondents did not breach confidentiality by disclosing the letter from the claimant’s solicitor dated 22 June 2023 to Abby Breen, Elise Garnham,, Danny Corcoran, Alison Emerson, Jessica Squire and other colleagues. Given the allegations in the letter, we have found that it is reasonable for an employer to share it with colleagues in order to investigate. Titling a letter private and confidential to a business does not preclude the business’ right to do so. There is no detriment as alleged. 131.11. We have found the second respondent did not instruct the claimant’s colleagues not to speak with him. It was the claimant’s solicitor who directed in the 16 June letter that all correspondence between the respondents (which would include the first respondents employees) must be via the claimant’s solicitor and not direct to the claimant. The respondents were complying with this direction. There is no detriment as alleged.. 131.12. We have found the second respondent did not instruct the claimant’s colleagues to address the Claimant as “He who shall not be named” in a deliberately derogatory and disparaging manner. To the extent this term was used, the claimant has not proved that it was at the direction of the second respondent. There is no detriment as alleged. 131.13. We have found that the respondents did not conduct or pursue an investigation during the period of the claimant’s sick leave. There is no detriment as alleged. 131.14. We have found that the claimant did address the claimant’s grievance within a reasonable period by sending it to the respondents’ advisors and following their advice. While the claimant may not agree with the process followed we have found that the respondents acted properly by having a grievance procedure and following their advisor’s (Peninsula) advice. There is no detriment as alleged.

[132]We have found the following things did happen; therefore, we must determine whether they amount to detriments to the claimant. 132.1. On 23 or 24 Mary 2023 the claimant and the second respondent had a discussion about the recommissioning of Kitchen 1. The second respondent and the claimant agreed the restaurant could not be opened until Kitchen 1was ready. They disagreed as to what was meant by “ready”. The claimant alleges that by not following the claimant’s advice (as to what work needed to be carried out to constitute “ready”). To assess whether a business owner disagreeing with a manager amounts to a detriment we must consider if a reasonable worker (even if not all reasonable workers) might take the view that, in all the circumstances, the conduct was to the worker’s detriment, the test is satisfied (the test of detriment has both subjective and objective elements). The situation must be looked at from the claimant’s point of view, but the claimant’s perception must be ‘reasonable’ in the circumstances. 132.2. We are mindful that for an act to constitute a detriment it is not necessary for there to be physical or economic consequences to the employer’s act or inaction (Shamoon v Chief Constable of the Royal Ulster Constabulary), what matters is that, compared with other workers (hypothetical or real), the complainant is shown to have suffered a disadvantage of some kind and disadvantage is a low threshold. In our judgment, it is a business owner’s prerogative to disagree (and in this case overrule) a manager’s advice if the circumstances support this. The circumstances at this time were that the business was losing money due to the kitchen being shut (there was no income) while still paying wages (to retain staff) and paying for repairs necessitated by the fire (pending the insurance payment). The second respondent and Mrs Julings told us that the claimant wanted to reconfigure a kitchen that had previously worked well. In these circumstances we do not consider that the claimant suffered a real disadvantage in the second respondent disagreeing with him as to when Kitchen 1 was ready for use. Indeed, it was to the claimant’s advantage to ensure the kitchen was opened as soon as possible. There is no detriment. 132.3. The second respondent accepts that he did not make any enquiries as to the Claimant’s health or wellbeing 15 June 2023 until his resignation. We have found he did not did so as he did not consider the claimant was ill but in any event he had been told by the claimant’s solicitor (in the letter dated 16 June) not to contact the claimant, hence he did not so. There is no detriment. 132.4. We have found the respondents did remove the claimant from all company accounts including WhatsApp groups whilst he was on sick leave and in doing so they complied with the 16 June letter that the claimant must not be contacted by the respondents (which includes employees of the first respondent on company accounts). There is no detriment. 132.5. The respondents accept they failed to pay the claimant’s accrued but untaken holiday pay on his resignation. We have accepted that this resulted from an error of the respondents’’ accountants and any monies owing have been paid. There is no detriment. 132.6. We have found that the respondents did invite the claimant to retract his resignation. This is the opposite of a detriment. It is following ACAS guidance to allow an employee who has resigned to cool off and reconsider. The respondents did not make the claimant do anything; they invited him to. There is no detriment. 132.7. We have found that the respondents did suggest that the claimant would have been dismissed for gross misconduct in any event had he not resigned. Being accused of gross misconduct is detrimental to an employee. Therefore, we must consider whether the accusation was made because the claimant made a protected disclosure in his March 2023 email and / or because of the conversation the claimant had with the second respondent on 23 or 24 May. 132.8. In response to the 22 March email, on 28 March the second respondent told the claimant to sort out the licensing issues. At this time parties agree they had a good relationship, something we have found reflected in their WhatsApp messages. The second respondent instructed the claimant to remedy the issues. For him, the matter had been addressed by delegation of a task to the person raising the concerns. In these circumstances, we find it is simply not feasible that the second respondent was motivated by an email several months earlier when considering, and starting to action, Peninsula’s advice that gross misconduct proceedings start against the claimant. 132.9. As to the 23 or 24 May discussion. At this time we have found that the second respondent accepts he became cross and resented the claimant’s intervention when they discussed the February EHO report and the action points required to recommission the kitchen. This was 3 months before the respondents followed Peninsula’s advice to explore misconduct. During this time there is no evidence that the second respondent had concerns about the claimant’s misconduct; by his own evidence he was irritated that the claimant was telling him what to do with his business. Indeed the evidence of the exchanges the respondents had with Peninsula are that it was Peninsula who advised the respondents to consider misconduct action. Indeed the second respondent told us many times that he was not a lawyer and he relied on his professional. We conclude that in making the decision to explore a misconduct action against the claimant the second respondent was following Peninsula’s advice resulting from the claimant’s legal letters and resignation. There is no evidence before us that the second respondent had in mind the May conversation when he agreed Peninsula could action this. S103A Employment Rights Act 1996 – Automatic Unfair Dismissal

[133]We have found that the claimant resigned because of the power struggle in decision making and subsequent breakdown of his working relationship with the second respondent and not because of the March email or May conversation.

[134]For these reasons it is the unanimous judgment of this Employment Tribunal that: 134.1. The complaint of being subjected to detriment for making a protected disclosure is not well founded and is dismissed 134.2. The complaint of automatic unfair dismissal is not well founded and is dismissed 134.3. The complaint of failure to provide an initial statement of particulars of employment is well founded. No award can be made as the claimant has not succeeded in the other claims before the Tribunal. APPROVED BY: