Mr D Boansi v The Governing Body of Lyon Park Primary School and London Borough of Brent: 3311738/2022
EMPLOYMENT TRIBUNALS
Case No 3311738/2022
Between
Mr D BoansiClaimantThe Governing Body of Lyon Park Primary School and London Borough of BrentRespondent
Before
Employment Judge BansalIn person for claimantMiss C Urquhart (instructed by Counsel) for respondentDate 18 July 2024
JUDGMENT
The judgment of this Tribunal is that the claimant’s complaint of automatic unfair dismissal for making protected disclosures contrary to s103A of the Employment Rights Act 1996 is not well founded and is dismissed. JUDGMENT having been given orally at the hearing and a judgment been sent to the parties on 30 August 2024, these written reasons have been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013. Therefore the following reasons are provided.
REASONS
[1]By a Claim Form presented on 21 September 2022, following a period of ACAS early conciliation which started on 13 July 2022 and ended on 23 August 2022 the claimant brought a complaint of unfair dismissal against the First Respondent only. The complaint lacked particularisation. Following an Order dated 2 October 2022, the claimant was directed to provide details of his “whistleblowing” complaint. The claimant provided these on 22 February 2023. At a preliminary hearing for case management held 19 June 2023, REJ Foxwell granted permission to the claimant to amend his claim, to include the factual particulars contained in the particulars sent on 22 February 2023. The complaint is therefore for automatic unfair dismissal for making protected disclosures under s103A of the Employment Rights Act 1996.[2]At a preliminary hearing held on 19 June 2023, the First Respondent was given leave to file an amended response, and also to add the London Borough of Brent as a Second Respondent, being the local authority with responsibility for the School. In their amended response, filed on 13 September 2023, both respondents contest the complaint, principally asserting that the claimant did not make any qualifying disclosures as alleged, and that the sole reason for the claimant’s dismissal was on the grounds of capability. The Legal Issues[3]At a Preliminary Case Management Hearing held on 19 June 2023 Regional Employment Judge Foxwell discussed and agreed with the claimant and the respondent representative the legal issues to be determined at a final hearing. At the start of this hearing, the parties confirmed there was no amendment to the agreed List of issues, which is annexed to this Judgment (Annex A). However, during cross examination, the claimant accepted that two of the alleged disclosures namely disclosures 8 & 10 were no longer being relied upon and were withdrawn.
The Hearing
[4]The claimant was not represented and acted as litigant in person. The respondent was represented by Miss C Urqunhart of Counsel.[5]An agreed bundle of documents of 620 pages was prepared by the respondent representative. As part of my reading and deliberations, I read and considered the documents referred to in the respondent witness statements; Counsel’s opening note and those referred to by the parties in evidence during the hearing.[6]The Tribunal was provided with a witness statement from the claimant. This statement lacked essential detail and information relating to the alleged protected disclosures which the claimant relied upon and which formed the substance of his complaint. The witness statement focused on less relevant matters to the issues to be determined. The claimant gave the explanation that he did not know he had to include this evidence and information in his witness statement as he understood the further particulars he provided in February 2023 were sufficient.[7]For the respondent there were statements for Mrs T Bhambra (School Head Teacher); Ms L Pacquette (Former Acting Head Teacher at the R1) and Mr Meggi (Chair of Governors). I heard oral evidence from the claimant and the respondent witnesses. All witnesses except Mr Meggi were cross examined by the claimant. I also asked questions of the claimant, Mrs Bhambra and Ms Pacquette.[8]At the conclusion of the parties evidence, the claimant and Miss Urqunhart gave oral submissions, which I took into account in my deliberations.[9]I was mindful the claimant was a litigant in person, and that he may not be familiar with or have an understanding of the Tribunal procedure. To ensure the claimant had a fair hearing, at the start of the hearing, I explained to him, the procedure that would be followed; the factual and legal issues that I had to determine as set out in the agreed List of Issues. I also gave him guidance in relation to cross examination of the respondent witnesses and how to prepare and present his final submissions at the conclusion of the parties oral evidence. In particular, I encouraged him to prepare in advance his questions to ask the respondent witnesses in cross-examination.[10]I was satisfied the claimant was given full opportunity to present his case; make his representations and that he received a fair hearing.
Findings of Fact
[11]I made the findings fact based on the evidence heard and read. Where there was a conflict of evidence arose I resolved this on a balance of probabilities. The numbers appearing in brackets in this Judgment is reference to a page number in the hearing bundle.[12]It was not necessary and neither was it proportionate to determine each and every fact in dispute. Hence, only relevant findings of fact pertaining to the agreed List of Issues and those necessary for me to determine have been referred to in this Judgement. The Respondents[13]The First Respondent (“respondent”) namely the School, is a local authority maintained school. The First Respondent was the lawful employer of the claimant. The Second Respondent is the Local Authority which funds the School.[14]The history and School structure, at the date of the claimant’s appointment, was explained by Mrs Bhambra in her evidence in the following terms. On 1 September 2020 the School became federated with Wembley Primary School. These two Schools became part of the Wembley Schools Federation, although each School retained its own identity and budgets. At this date, the School was in financial deficit due to financial mismanagement by the previous School Business Manager. This appears to be one of the reasons for this change, which allowed for collaborative working across the two schools; the sharing of resources and saving of costs. Due to an ongoing financial deficit in March 2021 the School entered into a Licensed Deficit Agreement with the Second Respondent. (p182-184). In effect this Agreement was to manage and reduce the deficit effectively over a 3 year period. In October 2021 the School deficit was at around £400k. (p184) The Claimant[15]The claimant commenced employment with the respondent on 15 November 2021 in the role of School Business Manager. His employment was terminated within his 26 week probationary period, effective on 17 June 2022 on the grounds of capability. Appointment of Claimant[16]On 7 October 2021 the claimant attended an interview with Mrs Bhambra and Ms D O’Donnell. On 15 October 2021 the claimant was offered the role of School Business Manager to commence on 15 November 2021. In evidence, it was confirmed that this appointment was following a selection process involving several candidates. The claimant applied for this role. At page 550 in the bundle, the claimant confirmed he completed an application form, and this particular page set out his experience and relevant skills. In response to my question the claimant confirmed that the list of duties contained in that summary were similar to his duties at the School. In particular, I noted his duties included, monitoring departmental budgets; maintain accurate and up to date school financial records; prepare accounts for audit; assist with termly/annual audits; procurement; payroll; ensure timely reporting to ST & Local Authority; Attend Finance and staff committee meetings. I should add this is not a complete list.(p550) In that form, the claimant stated, “ I strongly believe that I am a strong candidate for the role. I possess the knowledge, ideas and expertise required for the role.[17]In evidence, Mrs Bhambra confirmed the claimant was appointed because he was considered to be the suitable candidate for the role. She also explained the claimant was required to undertake a task involving analysing a school budget, which was to test his knowledge.[18]The claimant’s employment was subject to the terms and conditions as set out in the Statement of Written Particulars issued to him on 15 October 2021. (143-150) The claimant signed this statement accepting the terms on 15 October 2021. I noted this Statement to be compliant with s1 of the Employment Rights Act 1996, in respect of the required information to be given to a new employee.[19]The principal terms relevant for my purposes, are the Probationary Clause, and the Job Description. At Para 4, this confirmed the claimant’s appointment to be subject to satisfactory completion of a probationary period of 26 weeks, and that “during the probation period the employment maybe terminated on 1 months’ notice without recourse to the formal disciplinary or capability procedures should the conduct, attendance or work performance be unsatisfactory” (p144)[20]The claimant asserted that his probationary period was subject to the Probationary Procedure Policy (2017 Edition). (p579-598). I do not find that this Policy was adopted by the respondent. Therefore this Policy was not relevant.[21]A job description was attached to the written Statement. It comprehensively set out key tasks and activities upon which the claimant was taken through in cross examination, which he agreed with. (p151) In fact, this job description contained most of the key the tasks which the claimant highlighted in his application form to which I referred to earlier in this Judgment. Miss Bhambra in her evidence (Para 8) summarised the key tasks in this job description. The School Structure[22]Upon his appointment, the claimant’s Line Manager was Head Teacher Mrs Bhambra. At that time, Ms Pacquette was Deputy Headteacher. Mr Fenton was the Executive Head Teacher. The School also had School Governors. The School caretaker Mr Blake reported to him, as one of the claimant’s task was to deal with Health & Safety and School maintenance requirements. Knowledge of School Budget Deficit[23]The claimant, in cross examination asserted that he was not informed of the School budget deficit or the Licensed Deficit Agreement at his interview. Mrs Bhambra was adamant that he was informed of this towards the end of his interview. She also explained that one of the tasks was to test each candidate on their interpretation of the School Budget Report, and this report was used in the exercise. It was imperative to the School to appoint the right candidate who could deal with this deficit.[24]Mrs Bhambra referred to the interview notes at pages 610-615. The notes refer to discussions about budgets. On a balance of probabilities I find that the claimant was made aware of the Licensed deficit Agreement and the School budget deficit, which was a serious issue which the claimant would be required to deal with in his role. The School needed a candidate who demonstrated ability and financial experience and acumen to deal with this issue. I also find there was no reason for the School not to disclose this information given the nature of the role and how serious the budget deficit issue was.[25]In cross examination, the claimant said he raised his concern verbally about this budget deficit at the Senior Leadership Team meetings. He explained that he found about this around January 2022, because he was receiving a lot of telephone calls from suppliers for payment. He mentioned this to two staff members, (Summer & Parish) who told him the School was in financial trouble because of the previous Manager. The claimant accepted that at the Finance Cttee Meeting held on 25 January 2022 he was aware of this budget deficit. Notwithstanding the claimant’s evidence I find he was made aware at this at his interview. Performance targets[26]I was referred to Performance Targets documents (pages 465-467) which related to the claimant’s role, with the targets to be reviewed and completed by December 2022. These formed the School’s annual appraisal system. In cross examination, the claimant accepted these were discussed with Mrs Bhambra, which he signed.[27]Upon commencing his role, the claimant was heavily supported by Ms O’Donnell. She was the Business Manager of Wembley Park School who covered the Business Manager role for the School from December 2019 whilst a Business Manager was recruited for the School. Ms O’Donnell had extensive experience in this role.[28]The claimant worked from 15 November 2021 to 1 December 2021. He was granted bereavement leave from 2 December 2021 returning in early January 2022. In the claimant’s absence Ms O’Donnell covered the claimant’s role until 31 January 2022. In cross examination the claimant claimed that during the initial months he was not allowed to do much work by Ms O’Donnell. He was more like a spectator, just observing, and that her handover was not effective. I reject this assertion. This was not raised in any email correspondence or in his witness statement. Having read the email correspondence between Ms O’Donnell and the claimant from February 2022 onwards I find Ms O’Donnell was most helpful to the claimant. She provided him with explanatory guides and how to carry out key functions of the role. I noted the claimant also sought assistance from Ms O’Donnell as and when he wanted and particularly in relation to the preparation of the financial budgets during his employment and more so in April 2022. 1;1 Reviews with Mrs Bhambra[29]Mrs Bhambra managed the claimant from his appointment until 8 April 2022 when she left on maternity leave, and handed over to Ms Pacquette. During this period, she held monthly reviews with the claimant, which were documented as Minutes of Meeting. A copy of these minutes were sent to the claimant that same day. She also had daily discussions with the claimant about financial matters and issues that he was responsible for. Miss Bhambra explained that in the Minutes the words highlighted in red denoted actions required/or to be done. The words in green denoted actions completed; and those in orange/amber were part completed; and in black, not actioned.[30]The Review Document contained several headings, namely Performance Management; Health & Safety; Governing Body Meetings; Maintenance Work, and AOB. In evidence the respondent referred to the Minutes of Meetings held on 24/01/22 (p253) ; 7/02/22 (p263); and 28/02/22 (p272)[31]In cross examination, the claimant did not deny receiving these Minutes. Further he accepted that he did not amend these Minutes to include some of the alleged disclosures which he claims he made to Mrs Bhambra and others.[32]I find Mrs Bhambra’s evidence about the discussions held at these review meetings was consistent to what she recorded. I am also satisfied that had the claimant raised a whistleblowing concern at any time during her supervision, she would have documented this and also escalated this to the School’s HR Advisers for further advice and guidance. I reject the claimant’s evidence that not everything has been recorded in these Minutes. The claimant provided no evidence in support of his assertion. Given the seriousness of the concerns expressed by the claimant, I would have expected him to have documented these. I reject the claimant’s explanation that he did not know or realise that he should have documented these or followed up by email or other correspondence. School Monthly Budget Reports (Fin1)[33]One of the claimant’s key role was to submit the monthly budget reports to the Second Respondent. This was due at the end of each month with a deadline date.[34]Mrs Bhambra in her witness statement at Paras 11 to 21 set out the issues with the claimant’s preparation of the reports; the delays in his completing and submitting these reports; the level of assistance provided by Ms O’Donnell despite the representations he made, in the interview process, that he had relevant skills for the role. This evidence was not challenged by the claimant in cross examination. I was satisfied that Mrs Bhambra evidence is consistent with the emails exchanges involving her and Ms O’Donnell.[35]By March 2022, Mrs Bhambra became concerned at the claimant’s performance and ability to perform his role. There were errors on his reports; inaccurate reporting, which showed a lack of knowledge. This concern was shared with Ms O’Donnell. 22 March 2022[36]On 21 March 2022, Mrs Bhambra met with the claimant to discuss his presentation at the Finance & Premise Staff Cttee Meeting scheduled for 28 March 2022. The claimant met with Mrs Bhambra and produced no information for her review. (p300-305)[37]On 28 March 2022, the claimant attended a meeting arranged by Mrs Bhambra. The claimant had been told about this meeting on 21 March. This meeting was to discuss the year end and the budget for the new year. Also in attendance was Ms Pacquette and Mr Fenton. The claimant attended without the relevant paperwork. The claimant had not prepared the budget report for Mrs Bhambra to sign off which also needed to be sent to the Second Respondent. Hence, the report was delayed. The claimant requested to complete this over the easter holidays. This meeting was re-scheduled to 22 April 2022.[38]Mrs Bhambra, on handover to Ms Paquette explained her concerns with the claimant as highlighted above. Mrs Bhambra left on maternity leave from 5 April 2022 until 31 March 2023. She confirmed she was not involved in the decision to dismiss the claimant. Disclosures[39]Mrs Bhambra denied the claimant’s contention that he made disclosures to her as claimed. Mrs Bhambra confirmed that the issues about the fire alarm, back gate, repair of carpets and boys toilets were issues which were brought to her attention by the School Caretaker Mr Blake, and not the claimant. Mrs Bhambra explained that she did have discussions with the claimant about these, and some of these were documented in the 1;1 Review meetings held with the claimant. I accepted the evidence of Mrs Bhambra, for reasons which set out below in my conclusions. April 2022[40]From 8 April 2022, Ms Pacquette became the Acting Head Teacher, and the claimant’s Line Manager. She was part of the Senior Leadership Team. Prior to her taking over Mrs Bhambra’s role, and direct management of the claimant, she had some interaction with and experience of the claimant, which put into context her own concerns she had about the claimant’s work and suitability. For example, she explained that on 1 March 2022, she asked the claimant to source a Health Questionnaire for staff. The claimant was instructed to contact HR to ensure the questionnaire was appropriate. The claimant confirmed to Ms Pacquette that he had consulted HR, which in fact, he did not do so. The questionnaire was found to be intrusive and was rejected by the Unions. This was not challenged by the claimant in cross examination.[41]On 28 March 2022, Ms Pacquette was present at the meeting with Mr Fenton, which Mrs Bhambra had arranged to deal with the year-end budget report. As confirmed by Mrs Bhamra in her evidence, the claimant attended without the paperwork or expenditure reports, which meant that Ms Pacquette lost the opportunity to discuss budget issues with Mrs Bhambra before she commenced maternity leave. Again, this issue was not challenged by the claimant in cross examination.[42]On 5 April 2022, which was during the half term period, Ms Pacquette came into School and was met by the claimant who asked her to sign off the month end FIN1 budget report, which should have been ready and presented before the half term break. This report was not presented by the claimant in advance and neither had the claimant arranged an appointment in advance with Ms Paquette. Again, this was not challenged in cross examination.[43]During April 2022, Ms Paquette was aware that Ms O’Donnell was providing continuing support to the claimant in preparation of the financial reports, although she was not aware of the extent of this support. I was referred to a series of emails in the bundle between Ms O’Donnell and the claimant which clearly showed the level of support and interaction they were having. I also noted the request for support and assistance was made by the claimant. The email exchange also showed the claimant’s lack of knowledge or experience and the errors he was making in the preparation of the reports, as highlighted by Ms O’Donnell[44]On 22 April 2022 the claimant was due to meet with Ms Paquette to discuss his budget report. On 21 April 2022, the claimant contacted Ms O’Donnell by email for some guidance to complete the report as he realised he would be unable to complete the report in readiness, which he found time consuming. Ms O’Donnell gave the claimant her advice, with a clear statement, “remember this has to be presented to the Full Governing Body as well as Resources Committee so it needs to be accurate as possible. “ (p333-334)[45]The claimant, knowing that he would not be able to complete the report for this meeting with Ms Paquette, that same afternoon (21 April), at 15.51, emailed Ms Pacquette to request the meeting be rescheduled for the following week. On 22 April, at 08.34am Ms Pacquette declined his request and insisted that they still meet as arranged as she “wanted to understand better the barriers he was facing getting things done” (p335)[46]In reply sent that same morning at 09.38am, the claimant explained he had been busy working on the report, and also having to help out at the front desk due to staff absences. He requested more time due to the intensity and capacity of the work involved in compiling the year end report. He also wrote, “ It is undermining that you think requesting for the meeting to be rescheduled automatically means that I am incompetent in my role and I struggled getting things done…”(p337)[47]Despite this email exchange the scheduled meeting was not cancelled. Ms Paquette and Mr Fenton were in attendance. The claimant did not attend. According to Ms Paquette, when she approached the claimant about this subsequently, he explained that he did come to the meeting room, as he formed the view that she and Mr Fenton were in a meeting and therefore did not want to disturb them. This meeting with the Governors was rescheduled to 27 April 2022.[48]Later that afternoon, Ms Paquette met with the claimant, and made him aware of her concerns about his role, in particular about the delays in preparing the reports; the cancellation of meetings due to lack of preparation and the errors he had made in his budget reports.[49]On 27 April 2022, the re-scheduled meeting with the Governors, Ms Paquette and Mr Fenton went ahead. The claimant attended and produced his financial budget report, which was inaccurate with significant errors. The errors were; he had assigned various costs to the Pupil Premium Grant, which was a ringfence grant. He had changed figures in the Early Years Grant which should not have been done. These errors made the budget look healthier than it was, which would have a significant impact on the schools financial deficit at the time. This prompted Ms Paquette to arrange for Ms O’Donnell to provide additional on the job support to the claimant, and to ensure the budget reports were accurate. (p361-362)[50]On 10 May 2022, Ms Paquette contacted their HR Advisers, Strictly HR for a sample probationary letter as the claimant was approaching the end of his probationary period. Ms Paquette considered the situation in light of her own concerns and the concerns previously expressed by Mrs Bhambra. Ms Paquette invited the claimant to a formal probation review meeting scheduled for 19 May 2022 at 11.30am. The letter set out a list of concerns about his performance, some of which had been raised with him at that time. The letter was comprehensive and set out in 7 bullet points issues with his performance which had been noted and caused them concern. The claimant was warned that if she decided his probationary period was unsuccessful, then it was highly likely that his employment would be terminated. The claimant was given the right to be accompanied at this meeting. (p380-381)[51]On 11 May 2023, Ms Paquette met with the claimant. This meeting was minuted by Ms Pacquette. (p374) The recorded minutes recorded the issues discussed, with tasks/action plans and the date of the next meeting to be 23 May 2022. The minutes did not record the discussions Ms Paquette confirmed she had with the claimant about his performance or record the scheduled probationary review meeting. Ms Paquette said she handed the claimant the Probationary Review meeting letter, which later that afternoon was emailed with the minutes of this meeting. (p379) The claimant did not dispute that this letter was not handed to him or that he was not aware of the scheduled meeting.[52]That morning on 11 May 2022, the claimant emailed to the Second Respondent Finance Team the Year End Workbook. On 17 May 2022, the Finance Analyst of the Second Respondent returned the Workbook to the claimant, with the instruction, “The Fin1a does not balance and was having trouble matching the figures, eg, bank, fin balance is different to trial balance. Can you please review the workbook and a the reports. “ (p382)[53]On 13 May 2022 at 6.33am, the claimant contacted Ms Pacquette and informed her that he would not be attending work due to not being well. That morning at 8.35am the claimant emailed a Fit Note from 12 May 2022 to 27 May 2022. The reason for his absence was work related stress and lower back pain. (p390-392) Dismissal and appeal.[54]Upon receipt of this Fit Note, Ms Paquette consulted with the School’s HR Advisers and management and took the decision to terminate the claimant’s employment. The dismissal letter was dated 13 May 2022 and confirmed the grounds for dismissal, namely that his work performance did not meet the required standards required by the School. The letter confirmed that he was being given his contractual notice of 1 month with his effective date of termination as 17 June 2022. Also the claimant was given the right of appeal. (p396)[55]In evidence, and as pleaded in the response the respondent confirmed it relied upon the probationary period clause in the written statement of particulars (Paragraph 4), which contractually entitled the respondent not to proceed through a formal capability procedure.(p144)[56]The claimant appealed against his dismissal. He set out his grounds of appeal in a undated detailed letter challenging the decision. The opening paragraph, reads, “ I strongly believe I have been treated and dismissed unfairly as a result of discrimination victimisation and lack of support from the above staff..” (p404-410)[57]The said letter contained no mention of any whistleblowing complaint being relied upon or that his dismissal was because he made whistleblowing complaints/disclosures. In cross examination the claimant accepted the letter made no mention at all about any whistleblowing complaint/disclosures. Also, in cross examination, the claimant confirmed he believed that part of the reason why he was dismissed was because Ms Paquette she did not like him.[58]Although, the claimant submitted his appeal, he did not attend the appeal hearing held on 7 July 2022. The claimant decided not to attend the hearing contending bias, and he was content for the appeal to be heard in his absence. The appeal was dealt with by Mr Maggi who upheld the dismissal. (p564-565) At this hearing, the claimant did not cross examine Mr Maggi. Hence Mr Maggi’s evidence was unchallenged. Disclosures[59]In cross examination, the claimant did not question or challenge Ms Paquette about the alleged disclosures made to her. Notwithstanding this, I prefer Ms Paquette’s evidence that the claimant did not make any of the alleged disclosures to her and neither was she made aware by Mrs Bhambra, Mr Fenton, Mr Blake, Ms O’Donnell or Ms Yarde about any alleged disclosure made by the claimant. I concluded as a finding of fact that no disclosures as alleged by the claimant were made to Ms Paquette. Legal advice & ET1[60]The claimant confirmed that following his dismissal letter he sought advice from ACAS. He said he told the ACAS conciliator that he had made the alleged disclosures. The claimant produced no evidence of this alleged discussion.[61]On 21 September 2022 the claimant presented his Claim Form (ET1) to this Tribunal, making a complaint for unfair dismissal. The claimant’s letter of appeal form the Particulars of Claim. By an Order made on 20 October 2022 the claimant was ordered to provide full particulars of his whistleblowing complaints by 10 November 2022. The claimant failed to comply. By an Order dated 14 February 2023, the Tribunal gave the claimant further opportunity to comply with the Order by 22 February 2023.[63]On 22 February 2023 the claimant submitted his further particulars which formed the basis of this claim and the agreed List of issues. In cross examination and in reply to a question asked by the Judge, the claimant admitted in evidence that this was the first time and only written documentation that he has provided setting out his whistleblowing complaint. The Legal Framework Protected Disclosure -s43A Employment Rights Act 1996[64]Section 43A of the Employment Rights Act 1996 (“ERA 1996”) provides that a protected disclosure is, a ‘qualifying disclosure’ as defined by section 43B; which is made in accordance with one of six specified methods of disclosure set out in sections 43C to 43H.[65]Section 43B sets out what a qualifying disclosure is. Sub-sections 43B(1) and (5) say: “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. … (5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).”[66]In summary, a qualifying disclosure is(i) a disclosure of information that(ii) in the reasonable belief of the worker making it, is made in the public interest and(iii) in the reasonable belief of the worker making it tends to show that one or more of six ‘relevant failures’ has occurred, is occurring or is likely to occur.[67]In Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979 the Court of Appeal considered the public interest element of the definition. It held that: “where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under section 43B (1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker.” The court said that the question of whether a disclosure about a personal interest is also made in the public interest is one to be decided by considering all the circumstances of the case, but these might include: “(a) the numbers in the group whose interests the disclosure served; (b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed–a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect; (c) the nature of the wrongdoing disclosed–disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people; (d) the identity of the alleged wrongdoer…the larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e. staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest.”[68]A disclosure of information includes a disclosure of information of which the person receiving the information is already aware (section 43L(3)).[69]If a qualifying disclosure has been made, consideration needs to be given as to whether the method of disclosure makes it a protected disclosure. Section 43C says: “(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure(a) to his employer, or(b) where the worker reasonably believes that the relevant failure relates solely or mainly to (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person.” Automatic unfair dismissal - s103A Employment Rights Act 1996[70]Section 103A of the Employment Rights Act 1996 says: “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.”[71]A dismissal which is contrary to section 103A is ‘automatically’ unfair. The Tribunal does not need to consider whether the dismissal was reasonable in the circumstances.[72]The causation question for the Tribunal in the complaint of automatic unfair dismissal is to consider whether the sole or principal reason for dismissal is that the employee made a protected disclosure (Kuzel v Roche Products Ltd (2008) ICR 799 and Fecitt and others v NHS Manchester (2011) IRLR 111)[73]Section 103A requires the Tribunal to identify the sole or principle reason for the dismissal. If that reason is one or more protected disclosure, the dismissal is automatically unfair.
Conclusion
[74]Having considered all of the written and oral evidence and the documentary evidence presented, I am satisfied that Ms Parquette’s decision to dismiss the claimant effective from 17 June 2022 was on the grounds of his poor performance/capability.[75]I come to this conclusion on the following basis; (i) Protected disclosures[76]The claimant has to show that on a balance of probabilities he made the alleged disclosures he has relied upon, and that the sole or principal reason for his dismissal was because he made disclosures which are protected at law.[77]The first question I had to consider is whether the claimant was an employee or a worker at the time he made the alleged disclosures. There is no dispute that the claimant was an employee and therefore has the protection of the Public Interest Disclosure provisions.[78]The second question I had to consider is whether the claimant made disclosures which amount to qualifying disclosures within the meaning of section 43B ERA. Thus, the question is simply whether there is sufficient information to satisfy s.43B, which is a question of fact for the Tribunal to determine.[79]Given the lack of any documentary evidence and a fundamental conflict of evidence between the parties about when and if at all, these alleged disclosures were made I had to assess the circumstantial evidence to enable me to come to a decision as to whether the claimant had shown on the balance of probabilities that the alleged disclosures were made. I find as a fact the claimant did not make any of the disclosures as alleged for the following reasons.a. I preferred the evidence of Mrs Bhambra and Ms Parquette. They were honest, credible and consistent in their evidence. In contrast I found the claimant to be inconsistent, not credible or a reliable witness. I found him to be vague and lacked detail about the specific alleged disclosures. He even failed to realise, until it was pointed out to him by Counsel in cross examination, that because he was absent in December 2021 he could not have made any alleged disclosures in that month. I found him to be making up his evidence.b. The claimant’s witness statement and oral evidence lacked detail about the alleged disclosures; namely the precise dates, to whom made and what was actually said by way of disclosure. The claimant simply made a general assertion that he made these disclosures orally. I find that claimant is fully aware of the claim that he is pursuing. The Case Management Summary of the preliminary hearing held on 19 June 2023 clearly set out the issues to be determined. Further Paragraph 17 clearly stated what is required to be included in a witness statement. It states, “A witness statement is a document containing everything relevant the witness can tell the tribunal. “ (p111) The claimant’s explanation that he did not know as he understood his further particulars were sufficient is not convincing. I have concluded had the claimant communicated any alleged disclosures he would have been able to detail these in his witness statement and would have questioned the witnesses about these. The fact is he has not done so. I find that is because he made no such disclosures.c. The claimant has produced no documentary evidence to corroborate his assertion that he made the disclosures orally. The claimant is an educated and capable individual who would have known that such concerns should have been documented. Given the serious view he has shown for these alleged disclosures I would have expected him to have sent emails about this; even follow up emails to ensure his concerns were being actioned. He did not do so. His explanation to the Tribunal, “ I hold my hands up I did not do so – it’s my fault” – is not a compelling explanation not to have done so.d. I am satisfied from Mrs Bhambra’s evidence and from some of the Review Meetings minutes that there was discussion about the fire alarm, gates; carpets, boys toilets, however these were raised by Mr Blake initially and discussions with the claimant were about putting the actions into practice. I reject the claimant’s assertions. I am satisfied from Mrs Bhambra’s evidence that had any disclosures being made she would have documented these and escalated them to the HR Department for their guidance. The fact that this is something she would not have omitted further confirmed to me that the claimant did not make any of the alleged disclosures to her.e. In cross-examination the claimant answered that when he was dismissed he believed this was also because Ms Parquette did not like him, and that this contributed to his dismissal. At the time of dismissal the claimant asserted he took advice from ACAS and informed the conciliator about having made the alleged disclosures. If that is the case it is most surprising the claimant did not raise this as an issue in his letter of appeal which makes no reference to his belief that he was dismissed because he had made disclosures. I am satisfied that had he held this belief at that time I would have expected him to have raised this as the reason for his dismissal rather than discrimination, bullying and victimisation as stated. I also question the claimant’s credibility and integrity in the delay in asserting that he made the alleged disclosures, as set out in his further particulars which he was compelled to provide. This was provided some 8 months later from the date of dismissal. It is questionable why it took him this long to document his complaint. I find this was an afterthought.f. The claimant did not apart from a few general questions challenge Mrs Bhambra or Ms Pacquette about these alleged disclosures. It was not the case that the claimant had difficulty in asking the witnesses questions. The fact is that he just did not challenge them, which as Counsel submitted he did not make the alleged disclosures at all.g. As I have found that the claimant did not make any disclosures (whether protected or not at law) the complaint of automatic unfair dismissal fails. Reason for dismissal[80]For completeness I am satisfied on the evidence presented by the respondent that the reason for the claimant’s dismissal was capability. There is an abundance of evidence before this Tribunal which confirms the claimant was not performing his role to the required standards which naturally affected the trust and confidence in him; that he was being heavily supported by Ms O’Donnell to produce financial reports which was a fundamental and important part of his overall role which given his representations about his level of experience and knowledge should not been necessary to the extent he received; that he lacked the knowledge, experience and required skills to perform the role to the required standards. Ms Pacquette in her witness statement set out what was discovered after the claimant’s dismissal about the serious discrepancies in the accounts/budgets prepared by him.[81]I also add, if I had found that the claimant had made any disclosures, which qualified as protected disclosures I would still have found that the sole reason for the claimant’s dismissal was capability. The claimant has not established a causal link between any of his disclosures to the dismissal. Based on the facts there is no direct evidence from which I could conclude that any disclosures were a material factor in the decision to dismiss.[82]For the reasons I have given the claimant’s claim fails and is therefore dismissed.