Mr C Marshall v Royal Mail Group Ltd: 3312327/2023

EMPLOYMENT TRIBUNALS

Case No 3312327/2023

Between

Mr C MarshallClaimant

Royal Mail Group LtdRespondent

Before

Employment Judge Tegerdine

Mrs L Simpson (instructed by counsel) for claimant

Miss Z Tahir (instructed by solicitor) for respondent

Date 9 January 2025

JUDGMENT

Upon hearing from the claimant’s representative and respondent’s representative, the judgment of the Tribunal is that the Tribunal does not have jurisdiction to hear the claimant’s detriment complaint under section 45A(1)(f) of the Employment Rights Act 1996. This is because the claimant was not an employee or worker of the respondent within the meaning of section 230(3) of the Employment Rights Act 1996, so is not entitled to the protection afforded to workers and employees under section 45A(1)(f) of the Employment Rights Act 1996. JUDGMENT

[1]The complaint of indirect age discrimination contrary to ss19 and 39/41 Equality Act 2010 is not well-founded and is dismissed;

[2]The complaint of victimisation contrary to ss27 and 39/41 Equality Act 2010 is not well-founded and is dismissed;

[3]The complaint of being subjected to detriment contrary to s48 Employment Rights Act 1996 for making a protected disclosure as defined by s43B Employment Rights Act 1996 is not well-founded and is dismissed. JUDGMENT having been sent to the parties on 25 January 2025 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:

REASONS

[1]This is a claim brought by Mr Marshall who was employed by an agency, Pertemps, and placed on a temporary assignment at Royal Mail Group Limited as a Helpdesk Operator between 14 March 2023 and 21 April 2023. The Respondent terminated the Claimant’s temporary assignment with effect from 21 April 2023, as it was permitted to do in accordance with its agreement with Pertemps.

[2]Having contacted ACAS on 4 July 2023 and ACAS having issued a certificate on 15 August 2023, by claim form received by the Tribunal on 14 September 2023 the Claimant brought complaints of: - Automatic unfair dismissal contrary to s101 and s104 Employment Rights Act 1996 (ERA); - Indirect age discrimination, s19 Equality Act 2010 (EqA); - Victimisation, s27 EqA; - Whistleblowing/public interest disclosure and associated detriment contrary to s 43B/s48 ERA; - Refusal to permit breaks contrary to the Working Time Regulations 1998 (WTR) and associated detriment pursuant to s45A(1) ERA; - Unlawful deductions from wages contrary to s13 ERA.

[3]There are no time limit issues, however, given the Claimant’s employment status, there were some jurisdictional issues.

[4]The Respondent filed Grounds of Resistance on 11 December 2023, disputing the Employment Tribunal’s jurisdiction in relation to the unfair dismissal claims and denying the remainder of the claims.

[5]Following a preliminary hearing on 21 February 2024 the Claimant’s claim for unauthorised deductions from wages was dismissed on withdrawal. A second preliminary hearing was listed to deal with employment status and jurisdiction issues. That took place on 5 June 2024.

[6]The Employment Judge determined that the Claimant was a contract worker within s41 EqA and was therefore entitled to pursue complaints of indirect age discrimination and victimisation. The Claimant was also determined to be a worker within s45K(1)(a) ERA and, as such, could pursue a whistleblowing detriment claim. However, the following claims were dismissed: - Refusal to permit breaks contrary to regulations 12 and 30 WTR; - Detriment claim pursuant to s45A(1)(f) ERA; - Automatically unfair dismissal claims pursuant to ss101A(1)(a) and 104(1)(b) ERA

[7]In addition, at the hearing on 5 June 2024, the issues in the claims were clarified and a list of issues to be determined at the final merits hearing was agreed. The Respondent was given permission to file amended Grounds of Resistance, in response to the clarified claims. Directions were also given.

[8]The Respondent failed to comply with the majority of the directions in a timely manner and the Claimant made an application to strike out the response, which was dealt with as a preliminary matter at the start of the hearing on 6 January 2025. Claimant’s Strike out application

[9]Mrs Simpson, on behalf of the Claimant, made submissions that the Respondent’s response should be struck out in accordance with rule 38(1) of the Employment Tribunal Rules of Procedure 2024. She submitted that the Respondent had failed to comply with the Tribunal’s orders and had failed to provide disclosure of relevant documents. She took the Tribunal through the correspondence between the parties and submitted that none of the reasons provided by the Respondent were acceptable.

[10]Specifically, with regard to disclosure, the Respondent had, Mrs Simpson submitted, failed to comply with the overriding objective and failed to conduct the proceedings in a reasonable manner. The Claimant’s position therefore was that a fair hearing was no longer possible. The Respondent had said that certain documents had not been retained. Mrs Simpson submitted that the failure to retain had been unreasonable.

[11]Mr Peacock, on behalf of the Respondent acknowledged that there had been delays in complying with the directions and apologised. He submitted however that the revised directions as ordered on 21 November 2024 had been complied with. He submitted that, notwithstanding the delays, there was an agreed list of issues and witness statements had been exchanged and, as such, a fair hearing was possible.

[12]Mr Peacock went through the key parts of the list of issues and made submissions as to the key questions that the Tribunal needed to determine. With regard to victimisation, he submitted that there was evidence before the Tribunal on which it could determine whether the Claimant did a protected act and whether his assignment was ended because of any such act. As to the public interest disclosure claim, Mr Peacock submitted that the outstanding documents were not relevant to whether the Claimant’s disclosures were made in the public interest and whether his assignment was terminated because of those disclosures. Nor, he submitted, was the indirect discrimination claim dependent on the documentary evidence, but on the assessment of witnesses. He submitted that a fair hearing was possible.

[13]The Tribunal was aware that when considering whether to strike out a claim, it must first consider whether any of the grounds set out in rule 38(1)(a)–(e) have been established and then, having identified any established grounds, it must decide whether to exercise its discretion to order strike-out. Rule 38 states: 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a)that it is scandalous or vexatious or has no reasonable prospect of success; (b)that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c)for non-compliance with any of these Rules or with an order of the Tribunal; (d)that it has not been actively pursued; (e)that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).

[14]As to the Respondent’s failure to comply with the directions timetable, the Tribunal agreed with the Claimant’s submission that the Respondent’s explanations in correspondence had not been sufficient, and that the Respondent should have done more. However, the Tribunal acknowledged the difficulties as outlined in the submissions of Mr Peacock as to compliance with the directions following disclosure, given the time taken to ascertain the position in relation to various documents requested by the Claimant. It further considered that some of the documents requested by the Claimant which had caused the Respondent difficulties were not in fact relevant to the issues in dispute. In so far as some potentially relevant documents were not available, as they had not been retained by the Respondent, the Tribunal’s view was that both parties would be equally impacted by the absence of such documents. As such, the Claimant was not unfairly prejudiced.

[15]The Respondent’s failure to comply with the original directions had clearly been a cause of significant frustration for the Claimant and, at times, could be described as unreasonable as submitted on behalf of the Claimant. There had been a failure to comply with an order of the Tribunal and, as such, ground 38(1)(c) was made out.

[16]The Tribunal, in its exercise of discretion, had regard to the overriding objective of dealing with cases fairly and justly, and also the need to be proportionate. The Tribunal determined that it would not be fair or proportionate, in accordance with the overriding objective, to strike out the Respondent’s response. This was because the updated directions had been complied with and the outstanding disclosure/documents that could not be found, or had not been retained, did not go to the crux of the issues. The relevance of some of these was not apparent and in any event, the matters could satisfactorily be dealt with by witness evidence. The Tribunal did not accept the Claimant’s submission that a fair hearing was not possible. The Respondent’s response would stand. Whilst this had been served a month late a satisfactory explanation had been provided, both in correspondence and at the hearing. The Respondent was permitted to defend the claim.

The Issues

[17]The issues for the Tribunal to determine, (excluding remedy at this stage) as agreed at the preliminary hearing on 5 June 2024 were: INDIRECT AGE DISCRIMINATION, ss. 19 and 39/41 EqA 1. Did the respondent have the following provision, criterion or practice (“PCP”):a. A prohibition of comfort breaks after 17:00, from 18 April 2023? 2. Did the respondent apply the PCP to the claimant? The claimant is 61 years old and places himself in the 46 years and over age group for the purposes of this complaint. a. Did the respondent apply (or would it apply) this PCP to persons with whom the claimant does not share his protected characteristic (i.e. people who were not in the 46 and over age group);

b. Did the PCP put, or would it put, persons with whom the claimant shares his protected characteristic (e.g. people aged 46 and over) at a particular disadvantage when compared with persons with whom the claimant does not share it? The claimant relies on the following particular disadvantage: b.i. An older person suffers worse bladder control than a younger person. Therefore the prohibition of a comfort break leaves such an older person at the disadvantages of potentially soiling themselves at their desk, or taking the comfort break and risking disciplinary action including termination.

c. Did the PCP put, or would it put, the claimant at that disadvantage?

d. Can the respondent show the PCP to be a proportionate means of achieving a legitimate aim? The respondent relies on the legitimate aim of ensuring that work was carried out until the end of the shift at 6pm. VICTIMISATION, ss. 27 and 39/41 EqA 2010 4. Did the claimant do a protected act? The claimant relies on the following: a. (‘Protected Act 1’): The claimant contacted Nikki Carpenter at Pertemps Agency on 19 April 2023 at 19:00 p.m. by email, stating “Is this new rule legal?” and attached the respondent’s email instruction not to take comfort breaks after 17:00 p.m. b. (‘Protected Act 2’): The claimant spoke orally with Ed Picek of the respondent on 20 April 2024 at around 09:30 a.m., in the sound reduction booth behind Mr Picek’s desk. The claimant explained to Mr Picek that his bladder control is not what it used to be, and that he and many of his colleagues above 45 years old were unhappy about the instruction not to take comfort breaks after 17:00 p.m. He informed Mr Picek he had raised his concerns with Pertemps, and enquired as to whether it was a legal instruction, commenting that the company was leaving itself open to potential lawsuits. The claimant avers that both of these things amounted to the claimant doing a thing for the purposes of, or in connection with, EqA and/or making an allegation that the respondent had contravened EqA. 5. Did the respondent terminate the claimant’s assignment on 23 April 2023? 6. By doing so, did it subject the claimant to a detriment? 7. If so, was it because the claimant did a protected act, or because the respondent believed the claimant had done, or might do, a protected act? PROTECTED DISCLOSURE s43B ERA 8. Did the claimant make one or more qualifying disclosures as defined by section 43B of the Employment Rights Act 1996? The Tribunal will decide: a. What did the claimant say or write? When? To Whom? The claimant says they made disclosures on these occasions: a.i. (‘Protected Disclosure 1’): The claimant contacted Nikki Carpenter at PerTemps Agency on 19 April 2023 at 19:00 p.m. by email, stating “Is this new rule legal?” and attaching the respondent’s email instruction not to take comfort breaks after 17:00 p.m. a.ii. (‘Protected Disclosure 2’): The claimant spoke orally with Ed Picek of the respondent on 20 April 2024 at around 09:30 a.m., in the sound reduction booth behind Mr Picek’s desk. The claimant explained to Mr Picek that his bladder control is not what it used to be, and that he and many of his colleagues above 45 years old were unhappy about the instruction not to take comfort breaks after 17:00 p.m. He informed Mr Picek he had raised his concerns with PerTemps, and enquired as to whether it was a legal instruction, commenting that the company was leaving itself open to potential lawsuits. The claimant also flagged with Mr Picek that one particular colleague (Elaine Price) had a health issue relating to diabetes, which would make the instruction even more concerning for her. b. Did they disclose information? c. Did they believe the disclosure of information was made in the public interest? d. Was that belief reasonable?

e. Did they believe it tended to show that: e.i. A person had failed, was failing or was likely to fail to comply with any legal obligation; or e.ii. The health and safety of any individual had been, was being, or was likely to be endangered?

f. Was that belief reasonable?

g. If the claimant made a qualifying disclosure, was it made to the claimant’s employer or other responsible person for the purposes of section 43C of the Employment Rights Act 1996? If so, it was a protected disclosure. DETRIMENT s48 ERA 9. Did the respondent terminate the claimant’s assignment on 23 April 2023? 10. By doing so, did it subject the claimant to a detriment? 11. If so, was it done on the ground that they had made a protected disclosure?

The Facts

[18]The Claimant worked in the Exams Helpdesk team. The role of the team was to support the delivery and collection of examination papers to schools and colleges, and was a specialist service that the Respondent was contracted to provide to the Department for Education (DfE). The team was managed by Ms Sheryl Bowyer (SB), Exams, Billing & Online Systems Helpdesks Manager.

[19]On 18 April at 17.57 SB, the Claimant’s line manager, sent an email (“the email”) to the Exams Helpdesk team which stated: ‘all breaks including comfort breaks must be taken by 5 o clock please’ . This followed Ms Elaine Price (EP) having taken a comfort break at shortly before 6pm, when the shift ended at 6pm. SB had messaged EP on Teams saying “why are you not on ready?” As EP was away from her desk, the Claimant replied on her behalf, saying “gone on comfort break, she was desperate for the loo and couldn’t hold on”. At 17.56 EP replied to SB “sorry back now”.

[20]The Tribunal heard from SB that breaks had been discussed in the induction, and indeed the Claimant had raised that a user can put themselves on ‘comfort break’ status and following their return would not be allocated the next call. SB had replied along the lines of “but we don’t do that do we”.

[21]The Claimant maintained that there had been no discussion about breaks prior to SB’s message to EP. When asked why he felt the need to explain that EP ‘was desperate’, he said in evidence that he did not 100% trust SB and was concerned that she may have been trying to get rid of EP. He referred to a comment he asserted she made in the training. The Claimant said that he had asked what would happen if the Exams desk failed to meet its target, to which he said SB had replied that would never happen as she was in charge of the raw data. The Tribunal did not see the logic of this response to the question asked. The Tribunal did not need to make a finding as to whether such a statement was made by SB, but noted the evidence of Mr David Lindsay (DL), Customer Experience Delivery Manager, who referred to the excellent performance of the Exams team and the accuracy of the data SB manages. He stated that this was a credit to SB and her team.

[22]The Tribunal did not accept the Claimant’s evidence that there had been no discussion about breaks in the induction, not least because the Claimant admitted to commenting on how the telephony system ‘Genesys’ allocated calls. The Tribunal found, more likely than not, that breaks and correct use of the telephony system to log these had been discussed at induction, and this in turn explained why the Claimant felt the need to tell SB that EP ‘was desperate’, rather than just say she had gone to the toilet.

[23]The Tribunal further accepted SB’s evidence that people had approached her about, and she had overheard staff talking about, unfairness in that some people were misusing the break function to avoid taking the last call. This had been what prompted her email. This explanation was provided by SB when Nicki Carpenter (NC) from Pertemps queried the email of 18 April, concern about it having been raised with her by the Claimant.

[24]It was not disputed that the Claimant was concerned about SB’s email quoted above and that the following day he spoke to NC at Pertemps, his employer. NC asked the Claimant to send the email from SB, which he did that evening. He said that the policy worried him; most of the team were over 40 and bladder control was not what it used to be. He referred to EP having a medical condition and asked “is this policy legal?”

[25]Later that evening NC emailed SB saying she had received a few calls and emails regarding an email that was circulated about breaks being taken by 5pm. SB replied the following morning. She said that she had asked the team to take all breaks and comfort breaks by 5pm as the people working the late shift didn’t seem to want to take the last call. SB wanted to avoid people logging out so they become last in line for a call when they had had a break 5 minutes before they were due to go home. She said that a few agency staff had been taking excessive comfort breaks, and asked NC if there was anyone in particular who had an issue with taking inbound calls.

[26]On the morning of 20 April the Claimant raised the issue with Mr Ed Ficek (EF), Strategic Investment Business Partner and Head of Fleet and ESG Finance. He had no line management responsibility for either the Claimant or SB, but emailed SB’s manager, David Lindsay (DL), saying he was not sure the instruction to take breaks before 5pm was legally enforceable. He said one of the temps felt uncomfortable with it and had reported it to Pertemps. DL replied to say the email was not enforceable and he would make sure that was fed back and retracted.

[27]DL was on leave at the time, so asked Daniel Smithson (DS) to look into the matter in his absence. DS spoke to SB on the afternoon of 20 April and said that the Respondent could not have such a rule. SB explained that the email had been sent to stop advisors avoiding calls at the end of their shifts. DS said that the issue would have to be dealt with in a different way. He asked her to correct the position with call advisors, which she agreed to do.

[28]Prior to that conversation, at 14.16 on 20 April, SB sent NC an email saying that she needed to let C and another temp, Peace Opara, go. She said the Claimant was struggling. He had forgotten almost everything from training and denied being told things that his colleagues remembered from training. After 5 weeks he didn’t know the basics and was misinforming customers. He was becoming a hinderance to others, regularly disturbing colleagues to ask questions. He had been given numerous chances but SB was concerned at how far behind he was. This was not communicated to the Claimant until 23 April 2023.

[29]Later, on 20 April, the Claimant took a comfort break at 5.30pm. According to Teams messages, this lasted less than 1 minute. According to the call system Genesys, this break lasted over 4 minutes. The evidence was that the two systems were not connected, so could be used independently. The inference the Tribunal drew was that when the Claimant returned to his desk he messaged on Teams to say he was back, and then waited some three minutes before taking himself off comfort break status on the telephony system.

[30]In view of the Claimant’s concerns, and a complaint he raised following the termination of his assignment, Pertemps conducted an investigation, which included interviewing another person they had placed at the Respondent, EP. In her interview with Pertemps (the note of which was in evidence) EP had said that after SB sent the email to the team, the Claimant took the matter further and was going for comfort breaks between 5 and 6 pm “to be awkward”. She resiled from this somewhat in her oral evidence, saying it looked like he was being awkward but that may not have been the case. The Tribunal placed greater weight on her interview, because that was given in June 2023, close to the time of events.

[31]SB, under cross-examination, was questioned as to when she spoke to the team to clarify the email, after being contacted by NC. Her evidence was that the conversations were with small groups of 3-4 people on the morning of 21 April. She was sure that it was 21st as she had spoken to Daniel Smithson on the afternoon of 20 April. His note of that conversation stated at the end that he had asked SB to clarify the position to call advisors at the earliest opportunity. This was therefore consistent with SB’s account. She had spoken to the people on the earlier shifts. She had not spoken to the Claimant or Peace Opara as she had already contacted NC about terminating their assignments. Her deputy, Louise, had agreed to speak to EP (as she arrived later, being on the late shift).

[32]It was put to SB that she must have been aware that the Claimant and Peace raised the complaints to Pertemps. SB disputed this, saying it could have been any of the 14 Pertemps staff, and that just because staff told her they understood and were happy with the position regarding breaks when she clarified it with them on 21 April, that did not mean they would not have said something else to Pertemps. The Tribunal found SB to be reliable in this respect, because her explanations accorded with the documents from the time. Her evidence to the Tribunal was consistent with her email sent to DL following his return from leave. SB said she spoke to most of the team when she realised the email had not come across as intended. SB had subsequently become aware that it was Peace and the Claimant who took issue with the email, but she was not aware at the time.

[33]The Claimant’s last working day was 21 April 2023.

[34]Thereafter, Pertemps asked SB for detail as to why his assignment had been terminated on capability grounds and SB sent a number of emails on 24 April giving examples of errors he had made. In evidence SB confirmed that these were merely examples and there had been many more errors and general concerns with his performance. It was put to SB that these examples were not of a sufficiently serious nature to justify terminating the assignment, and indeed, that this was a subsequent attempt to justify the termination. SB strongly refuted that suggestion. The Tribunal found, in view of the evidence of DL, her line manager, that SB had high standards and her team performed exceptionally well. This was required due to the nature of the Exams contract with DfE. It followed that the Tribunal found that SB may have had a lower threshold for terminating assignments where people were not performing to her standards.

[35]On 25 April 2023 the Claimant raised a formal grievance. This was not available to the tribunal.

[36]His claim, as now brought, is that SB’s decision to terminate his assignment, being the day after he had spoken to NC, suggested that SB was aware he had raised a concern. However, the Claimant could not point to any objective evidence that SB was aware he had raised concern over the email. SB maintained that she was unaware, and this is consistent with an email sent by NC on 19 April, which refers to having received a number of emails and calls in relation to SB’s email of 18 April. The Claimant stated that NC had referred to staff on the late shift complaining. There was no evidence to support this; it did not reflect NC’s email. Further, different staff would work the late shift each week, so the position regarding breaks applied to everyone. There was no objective reason for staff working the late shift that week to be more likely to raise concerns about the email of 18 April. The Tribunal accepted SB’s evidence that the assignment of the Claimant was terminated for capability/performance reasons.

[37]On 10 May 2023 the compliance and governance team at Pertemps emailed SB with a number of questions to enable a response to the Claimant’s grievance to be prepared. SB responded the same day. As to her email of 18 April, SB said that it was a request and follow on from a discussion in the induction because advisors were putting themselves on ‘comfort break’ status within minutes of their finishing time to avoid taking the last call. This had been a request to have breaks before the final hour of the day when there is limited staff coverage. She should have clarified that genuine comfort breaks were perfectly acceptable; she mistakenly believed that had been explained during the induction.

[38]On 14 June 2023 NC responded to the Claimant’s grievance. Within that response she referred to examples of errors made by the Claimant, as provided by SB, and also stated that SB had confirmed that prior to ending his assignment she had been unaware of any complaints he had raised. NC further sought to provide reassurance, telling the Claimant that the email she had sent to SB querying comfort breaks did not contain his name or imply in any way that he had raised concerns.

[39]SB was cross examined at length on the examples of errors provided to Pertemps. She said it would have been too time consuming, and also unnecessary to provide details of all his errors. She had not personally raised all these errors with the Claimant as they had been brought to his attention by others. SB’s evidence was that whilst the errors had not been documented, the fact the Claimant was making regular errors had been raised verbally with NC. Not all his errors were raised with Pertemps, there had been too many, however, when examples were requested, they were provided.

[40]On 14 June 2023 DL emailed SB following up on the email of 18 April, as he had returned from his period of leave. He asked whether she had sent a follow-up email to clarify or retract the original one. SB had not, she had instead spoken to the team. DL drafted an email which was sent to staff by SB on 15 June 2023. The Claims Indirect Discrimination - Sections 19 and 41 EqA

The Claims

[41]Indirect discrimination is dealt with at s19 EqA as follows:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if- (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) It puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

[42]The prohibition on discrimination against contract workers is set out at s41 of the EqA: (1) A principal must not discriminate against a contract worker— (a)as to the terms on which the principal allows the worker to do the work; (b)by not allowing the worker to do, or to continue to do, the work; (c)in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service; (d)by subjecting the worker to any other detriment.

[43]The burden of proof provisions which apply to all claims brought under the EqA are set out at s136: (1)This section applies to any proceedings relating to a contravention of this Act. (2)If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3)But subsection (2) does not apply if A shows that A did not contravene the provision.

[44]The EAT in Dziedziak v Future Electronics Ltd EAT 0271/11 stated: “the matters that would have to be established before there could be any reversal of the burden of proof would be, first, that there was a provision, criterion or practice, secondly, that it disadvantaged women generally, and thirdly, that what was a disadvantage to the general created a particular disadvantage to the individual who was claiming. Only then would the employer be required to justify the provision, criterion or practice, and in that sense the provision as to reversal of the burden of proof makes sense; that is, a burden is on the employer to provide both explanation and justification”.

[45]This position was confirmed by the Supreme Court in Essop and ors v Home Office (UK Border Agency) and another

2017 ICR 640

, SC. In addition, Baroness Hale stressed that the key element in indirect discrimination claims is the causal link between the PCP and the particular disadvantage suffered by the group and the individual.

[46]PCPs are to be construed widely and cover both formal and informal policies (EHRC Employment Code). In Ishola v Transport for London

2020 ICR 1204

, CA, Lady Justice Simler said that the function of a PCP ‘is to identify what it is about the employer’s management of the employee or its operation’ that causes the particular disadvantage. The court further stated that ‘PCP’ connotates a state of affairs indicating how the employer generally treats similar cases, and noted that Parliament had not chosen the word ‘act’ or ‘decision’. Decision on Indirect Discrimination

[47]The first question for the Tribunal was: Did the Respondent have a PCP, namely a prohibition on comfort breaks after 17.00 from 18 April 2023?

[48]The Tribunal reminded itself that a PCP is not decision or act, rather it is a state of affairs – Ishola.

[49]The Claimant’s evidence was that SB’s email of 18 April 2023 was a new rule. He referred in his witness statement to NC contacting SB about the ‘new rule’. However the email from NC did not refer to a rule, but “an email that was circulated regarding breaks” that a few people had contacted her about. The tribunal inferred from this wording that not everyone had understood it or reported the email to NC as a rule.

[50]However, the Tribunal was cognisant that whether the email amounted to a ‘rule’ was not determinative, as a state of affairs could exist without a ‘rule’.

[51]As to whether the email amounted to a prohibition on comfort breaks after 5pm, the Tribunal took into account the following. First, when it was put to the Claimant in cross-examination that SB was not stopping people from going for urgent breaks, the Claimant replied that he did not accept the email said that. He also said he had not sought clarification of the email directly from SB as he was employed by Pertemps.

[52]Secondly, the evidence of SB was that this was not a policy and never had been. The email had followed discussions about breaks during induction. SB’s email of 10 May 2023 email set out that there had been discussions around the issue of late breaks meaning colleagues were left to cover others’ work, but it was made clear that people were permitted to use the toilet at any time. There had also been a discussion with call advisors about non-genuine comfort breaks (SB’s oral evidence). SB’s evidence was that these conversations had made everyone aware that some advisors were placing themselves on ‘comfort break’ status within the call system Genesys to avoid taking the last call of the day. The undisputed evidence was that when calls come in, they go to the person who has been waiting longest, so by advisors putting themselves on comfort break status, the next call would not go to them.

[53]DL’s interpretation of the email was that it was referring to an individual’s status on the telephony system. He did not consider that SB was referring to genuine toilet breaks. The Tribunal considered that this was because he understood how the telephony system worked and had been made aware of the background. His initial response to the email was that it was not enforceable and needed to be clarified or retracted.

[54]SB’s response to NC referred to the aim being to end the practice among some call advisors of putting themselves on breaks to avoid the final call of the day.

[55]SB’s evidence was that when she discussed the email with call advisors on 21 April they understood that genuine comfort breaks were permitted at any time and did not have an issue with the email.

[56]EP, who the Claimant called as a witness, gave evidence that she did not have an issue with SB’s email.

[57]On the other hand, those less familiar or unfamiliar with how the team worked, such as DS, saw that the email could be interpreted as a blanket ban on breaks after 5pm. This is also the way the Claimant says he interpreted the email. However, the Claimant took what the Tribunal found was a non-genuine comfort break of under 1 minute at 5.30pm on 20 April 2023. The Tribunal found that either the Claimant understood that breaks in the final hour were permissible, or as EP suggested, he took the break to be awkward.

[58]The Tribunal found SB to be a credible and reliable witness because her oral evidence was consistent with her statement and consistent with her account throughout, as set out in the documentary evidence contained in the bundle. The Claimant’s evidence on the other hand contained inconsistencies and lacked clarity, as noted at paragraph 21 above.

[59]The Tribunal found that, taken in isolation, to a person unaware of the background to the email, it would likely be interpreted as a prohibition on breaks after 5pm. However, taking the email in the context of the discussions and conversations which had preceded it, which call handlers were aware of, including the Claimant as he was present at the induction, the email of 18 April was not a rule and did not become/there never was a PCP prohibiting comfort breaks after 5pm. The Tribunal was satisfied that staff would have been aware of SB’s position that genuine comfort breaks were always permitted, but what was not permissible was to take nongenuine late breaks because that negatively impacted on team members who did not seek to manipulate the telephony system. The fact that the Claimant took a comfort break at 5.30pm on 20 April and there was no consequence, was evidence that there was no practice prohibiting breaks in place, even before the email was verbally clarified on 21 April.

[60]The Tribunal concluded that the email of 18 April 2023, given the background situation and subsequent clarification, did not amount to a PCP prohibiting staff taking comfort breaks after 5pm. It related to taking comfort breaks in order to alter the allocation of calls. It did not connote a state of affairs or practice that staff were not permitted to take genuinely needed breaks after 5pm. The subsequent clarification made this clear, in the event of any doubt.

[61]In the event that the Tribunal is wrong in this conclusion, it went on to consider whether any such PCP would apply to persons with whom the Claimant did not share the protected characteristic, namely people under the age of 46.

[62]Given that the email was sent to, and therefore applied to the entire team, which comprised people both under and over the age of 46, the Tribunal was satisfied that it applied both to people of 46 or over who shared the Claimant’s protected characteristic of age, and those who did not.

[63]As to whether any PCP put older workers at a particular disadvantage when compared with younger people, whilst the Tribunal accepted the premise that older people generally have a smaller bladder capacity, there was no evidence that they generally struggle to go for a period of just over an hour without emptying their bladders. In addition, there would be various other groups who would be equally impacted by any such practice, such as people with certain health conditions, for example diabetes, or people who are pregnant, and as such require more frequent toilet visits. There was simply no evidence to support the Claimant’s contention that someone 46 or over would have been more disadvantaged than younger people with relevant health conditions or in a state of pregnancy.

[64]In summary, even if (which the Tribunal found was not the case) the email amounted to a PCP, the Claimant has failed to prove that people 46 and over were put at a particular disadvantage when compared to younger people.

[65]Nor was there evidence that any restriction on comfort breaks put the Claimant at a particular disadvantage, since in his week of late shifts, he did not take a break after 5pm on the Monday or Tuesday, before the email was sent. Indeed, the only break he took after 5pm was on Thursday 20 April, a break which the Tribunal found to be a non-genuine break of under 1 minute. There was evidence before the Tribunal of when breaks were taken by staff members throughout the day. This demonstrated that the Claimant was routinely able to last for over an hour without a comfort break.

[66]The Claimant has not established a prima facie case; he has not discharged his burden of proof in relation to s19(2)(a)-(c). As such, the burden does not shift to the Respondent to show that the claimed PCP was a proportionate means of achieving a legitimate aim. This claim is not well-founded and does not succeed. Victimisation sections 27 and 41 EqA Section 27 EqA 2010 states: “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act.

[67]The prohibition on victimisation is contained within s41 EqA: (3) A principal must not victimise a contract worker—(a) as to the terms on which the principal allows the worker to do the work;

(b) by not allowing the worker to do, or to continue to do, the work;

(c) in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service;

(d) by subjecting the worker to any other detriment.

[68]Detriment ‘because of’ a protected act cannot be established where the decision-maker was unaware of the protected act - Scott v London Borough of Hillingdon

2001 EWCA Civ 2005

, CA. Decision on Victimisation

[69]The Claimant’s case is that he did two protected acts as set out in the ‘Lise of Issues’ above. The second, his conversation with EF on 20 April 2023 is admitted by the Respondent to amount to a protected act because he alleged that SB’s email of 18 April discriminated against people over 45.

[70]The first claimed protected act is disputed; the Claimant’s email to NC at Pertemps forwarding the email from SB and asking if the ‘new rule’ was legal. The Claimant submitted this was a protected act as he was making an allegation that the Respondent (specifically SB) had contravened the EqA, by imposing a policy which has a detrimental effect on those above 40 years old (not 46), who suffer from worse bladder control, including the Claimant – i.e. an implied allegation of indirect age discrimination.

[71]The Respondent submitted that the email was not a protected act because it did not include ‘in some sense an allegation of discrimination or otherwise a contravention of discrimination legislation’ as is required for a protected act in accordance with Beneviste v Kingston University

UKEAT/0393/05

[72]The Tribunal noted that the Claimant’s full email read: “this is the policy that worries me. Most of our team are over 40, and our bladder control is not what it used to be. Also Elaine has a medical condition that was notified at the interview. Is this policy legal? As I’m not prepared to potentially soil myself or lose my job, when on the late shift”.

[73]The Tribunal found that the reference to being over 40 and bladder control not being what it used to be was a reference to those over 40 being disproportionately impacted and hence an implicit reference to discrimination and an allegation that the Respondent had breached the EqA.

[74]Accordingly, the Tribunal found that the Claimant did two protected acts as claimed.

[75]It was not disputed that the Respondent terminated the Claimant’s assignment, albeit that this was by decision conveyed to Pertemps on 20 April, with the termination taking effect after 21 April. It was accepted by the Respondent that this was a detriment and the Tribunal accordingly finds that the Claimant was subjected to a detriment.

[76]The key question is whether this detriment was because the Claimant had done the protected acts. The Respondent’s case was that SB was unaware of the protected acts when she made the decision to terminate the Claimant’s assignment. The Claimant submitted that for various reasons, she must have had the requisite knowledge.

[77]As to whether SB was aware that the Claimant had done either of the protected acts (email to NC on 19 April and conversation with EF on 20 April), the Tribunal found that she was not. This was because: Protected act 1 - NC in her email to SB referred generically to having received a few calls and emails. Given that Pertemps had supplied 14 temporary staff, this could not have led to the Claimant being identified; - There was no response given by NC to SB’s question as to who had an issue covering the phones, and even had there been, this was not a request to know who had complained, as submitted on the Claimant’s behalf; - whilst the Claimant speculates that his name must have been given in a subsequent telephone conversation, there is no evidence that a conversation took place between the time NC emailed SB for clarification on the evening of 19 April and SB emailing in the early afternoon of 20 April to terminate the Claimant’s assignment. Protected act 2 - The Tribunal accepted EF’s evidence that he did not share the Claimant’s name when he escalated the matter to SB’s line manager, DL. The Tribunal had sight of both the email to DL which did not in any way identify the Claimant, and also the email from EF to the Claimant on 20 April which stated: “FYI – deleted you from the email trail so no fingers pointing to you”.

[78]The Tribunal found no basis for the Claimant’s submission that it was ‘likely’ that SB and NC spoke after SB’s reply was sent to NC’s email of 19 April. Nor was there a basis to allege, as the Claimant did in submissions, that NC was dishonest in the grievance outcome letter when she said she did not disclose the Claimant’s name. The Claimant’s criticism of NC, who was not present and hence unable to address the allegations made against her, include that the grievance outcome letter suggests that NC and EF spoke, when there was no clear basis for that. NC saying that EF recalled speaking to the Claimant did not necessarily mean EF spoke to NC personally and told her that. The Tribunal was of the view that the Claimant’s submissions in these respects were at best speculation, and more likely, a failure to understand and/or accurately interpret the evidence.

[79]There was, in the Tribunal’s view, no logic to the assertion that it was most likely to have been a member of staff working the late shift that week who raised concerns, because the email equally affected all members of staff, as on rotation, they would all work the late shift.

[80]The Tribunal did not accept the Claimant’s logic, following on from the above point, that it was most likely to have been Peace Opara or the Claimant who raised the concern.

[81]As to the Claimant’s submission that SB must have been informed by members of her team that the Claimant had complained, even if other team members mentioned names of those who were unhappy with the email of 18 April at that time, communication of the decision to terminate the assignment of the Claimant had already been made. The Tribunal did not accept the Claimant’s assertion that the clarification conversations with staff likely took place on 20 April, as this was inconsistent with the evidence of SB, whose account was supported by DS. For the reasons already given, the Tribunal found SB to be a more reliable witness than the Claimant.

[82]As to the Claimant’s submission that SB’s deputy would have been aware of the complaints and would have informed her, this was not supported by any evidence. It was purely a matter of speculation.

[83]The lack of express reference to a conversation with DS in SB’s statement was not evidence, as submitted by the Claimant, that enabled the Tribunal to conclude that DS was aware (and in turn SB was aware) that it was the Claimant who had complained to EF, not least because EF was clear in his evidence that he did not pass on C’s name. The Tribunal had no basis to doubt his evidence in that respect.

[84]There was no evidence to support the Claimant’s submission that Peace Opara had also complained about age discrimination and the Tribunal found this unlikely given that the oral evidence was that she was in her 20s or 30s.

[85]In conclusion, the Claimant had failed to establish that SB was aware that he had done either protected act when she terminated his assignment. The Tribunal found that SB was, on 20 April, unaware that the Claimant had complained about her email of 18 April. This was because SB was a credible witness, both NC and EF to whom C spoke said that they did not share his name. The ways in which the Claimant asserts that either his name must have been shared or deduced are no more than speculation. He has provided no cogent evidence upon which the Tribunal could infer that SB was, or must have been aware that, he, the Claimant, had raised concerns about the email of 18 April.

[86]It followed, applying the case of Scott above that the Claimant’s assignment was not terminated because he had done a protected act.

[87]The burden of proof does not shift to the Respondent to provide an explanation as to the reason for the Claimant’s assignment being terminated. However, for completeness, the Tribunal was satisfied that the reason for the Claimant’s assignment being terminated was his lack of capability. It considered that the number of examples of this provided, along with SB’s evidence that he lacked the most basic knowledge after 4-5 weeks, particularly in view of the high standards and performance of the Exams team, meant that the Tribunal accepted SB’s evidence that he was not performing to what she considered an acceptable standard.

[88]This claim is not well-founded and does not succeed. Protected Disclosure Disclosures qualifying for protection - s43B ERA and detriment s48 ERA (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.

[89]The right not to be subject to a detriment is set out at s48 (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B 90. s47B relates to protected disclosures by workers.

[91]Beginning with whether the Claimant made a protected disclosure, guidance as to ‘information’ was provided by the EAT in Cavendish Munro Professional Risks Management Ltd v Geduld

2010 ICR 325

, EAT. It was stated that ‘information’ is ‘conveying facts’. There a solicitor’s letter had expressed dissatisfaction, it was not a disclosure of information.

[92]The Court of Appeal in Kilraine v London Borough of Wandsworth

2018 ICR 1850

went on to stress that the word ‘information’ in s43B(1) has to be read with the qualifying phrase ‘tends to show’, i.e. the worker must reasonably believe that the information ‘tends to show’ that one of the relevant failures has occurred, is occurring or is likely to occur.

[93]The EAT in Phoenix House Ltd v Stockman

2017 ICR 84

, EAT, stated that, on the facts believed to exist by an employee, a judgment must be made, first, as to whether the belief was reasonable and, secondly, as to whether objectively, on the basis of those perceived facts, there was a reasonable belief in the truth of the complaints. It does not matter that the information is not factually correct (Darnton v University of Surrey

2003 ICR 615

EAT); the question of reasonableness of belief must be decided on the facts as reasonably understood by the worker at the time.

[94]Finally, the Claimant must believe that the disclosure was made in the public interest. That is not defined in the ERA, but guidance is given in various cases such as London Artists v Littler 1969 2 QB 375, CA where Lord Denning said ‘Whenever a matter is such as to affect people at large, so that they may be legitimately interested in or concerned at what is going on or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment”.

[95]Additional assistance as to what may constitute the public interest can be found on the website of the Information Commissioner’s Office as follows: “The public interest can cover a wide range of values and principles relating to the public good, or what is in the best interests of society. Thus, for example, there is a public interest in transparency and accountability, to promote public understanding and to safeguard democratic processes. There is a public interest in good decision-making by public bodies, in upholding standards of integrity, in ensuring justice and fair treatment for all, in securing the best use of public resources and in ensuring fair commercial competition in a mixed economy”.

[96]The Tribunal was cognisant that the 2013 amendment to s43B ERA, via the Enterprise and Regulatory Reform Act, which added the public interest requirement to the legislation, was with the intention that workers making disclosures in purely private workplace disputes should not benefit from the enhanced statutory protection accorded to whistleblowers.

[97]As to whether a disclosure about workplace issues may be in the public interest, guidance was given by the Court of Appeal in Chesterton Global Limited v Nurmohamed

[2018] ICR 731

. Where the interest is personal in nature, there may be features that make it reasonable to regard the disclosure as being in the public interest, relevant factors include: - the number of the group whose interests the disclosure served - the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed - the nature of the wrongdoing disclosed - the identity of the alleged wrongdoer.

[98]In that case, aside from the number of employees affected, the disclosure was found to be in the public interest because it was a disclosure of deliberate wrongdoing, namely misstatements in accounts to the tune of £2- 3 million. Whilst these were internal accounts, they fed into statutory accounts and the respondent was a very substantial and prominent business in the London property market.

[99]The Court of Appeal in Babula v Waltham Forest College

2007 ICR 1026

, CA confirmed the EAT’s view that the public interest test in s43B(1) can be satisfied even where the basis of the public interest disclosure is wrong and/or there was no public interest in the disclosure being made, provided that the worker’s belief that the disclosure was made in the public interest was objectively reasonable.

[100]As to the burden of proof, in NHS Manchester v Fecitt & Ors

[2011] EWCA Civ 1190

, it was held that whilst the principles of inferring discrimination were applicable in public interest disclosure cases, the stepby-step shifting burden (Igen v Wong

[2005] EWCA Civ 142

) did not strictly apply. Where the Claimant proves a protected disclosure and detriment: “The combination of these features means that it is for the employer to demonstrate that the grounds upon which it acted were not materially influenced by the protected disclosure.” Decision on Public Interest Disclosure

[101]The Claimant relied on his disclosure to NC sent on 19 April 2023, forwarding the email of SB of 18 April and asking “is this new rule legal” and, his conversation with EF on 20 April 2023, where he again referred to the email and asked if the ‘rule’ was legal. It was submitted on his behalf that on both occasions the disclosures of information tended to show that SB/the Respondent was failing to comply with obligations under the EqA by imposing a policy which adversely affected older members of the team. It was further submitted that the disclosures also tended to show that health and safety was likely to be endangered.

[102]The Tribunal was satisfied that the disclosures were of ‘information’, namely the Claimant shared SB’s email or a verbal summary of it, which said breaks were to be taken before 5pm, with NC and EF.

[103]The question is whether the Claimant believed the disclosures were made in the public interest (and if so, whether that belief was reasonable). In his evidence, the Claimant said initially he did not understand the public interest, but then he looked it up. It was put to him that very few people were affected and it was not something a member of the public would be concerned about. The Claimant responded that SB was in charge of three teams, so if the email was sent to all of them, some 75-100 would have been affected. The Claimant further suggested that as the email was sent to the whole team, he did not know if the same thing was happening throughout the business, potentially affecting thousands of workers.

[104]In relation his conversation with EF, the Claimant relied on his allegation of discrimination towards those over 45, and hence breach of the EqA.

[105]The Respondent in submissions disputed that the disclosures were made in the public interest. This was because SB’s email did not affect a large number of workers; it was the Exams team which comprised 17 staff. It related to comfort breaks in the final hour of the late shift. NC’s email to SB querying this asked her to ‘shed some light’; it was not the sort of communication which would follow concern about wrongdoing or a breach of an important interest. In response, SB provided an explanation which was confirmed by managers. Indeed, the Respondent’s evidence was that the email did not cause significant concern among others in the team.

[106]The Tribunal bore in mind that it was not substituting its view as to whether the disclosure was made in the public interest, but whether the Claimant had a reasonable belief that it was.

[107]As to whether the Claimant believed that the disclosure was in the public interest, the Tribunal noted that he had no idea of how many people were in the other teams SB managed (her evidence was that these were very small; she had up to 20 staff save in the summer when temps were taken on to assist in the exams team. Then she would manage around 30 people). Whilst the Tribunal was aware that a Claimant’s erroneous belief will not in itself lead to a failure to establish public interest, the evidence that the Claimant had no idea of the numbers affected in the Tribunal’s view goes to reasonableness. There was no basis for the view that the Claimant formed that the email went to other teams, and certainly no basis for his supposition that it, or something similar, was potentially company wide. He saw who the email was sent to, and could have counted the 17 recipients.

[108]Even if the Claimant genuinely believed SB had sent a similar message to all her teams, which appears unlikely to given the Claimant’s evidence as to the timing of her message, just after EP had taken a late comfort break, the Tribunal did not find that the claimed belief that 75-100 workers may have been affected was reasonably held, as the Claimant simply had no idea as to the size of the other teams. In contrast, he saw the number of recipients of the 18 April email. In addition, the Claimant has interchangeably said it may have been up to 100 staff, or it may have been thousands of staff. It is not reasonable to think that an email sent business wide would have been given such little consideration that it was limited to the subject line, and would come from one’s direct line manager, without explanation.

[109]As to the conversation with EF, it is apparent that the Claimant was expressing concern about the potential impact on himself and other team members who were older (and/or affected by health conditions). There was no mention of the concern he now asserts as to the potential scale of those impacted, which casts further doubt on the genuineness of his belief at the time with regard to numbers. It is apparent that this was really a matter affecting, and of concern to, the Claimant. Whilst he has said it affected others, he did not bring evidence of that. His witness, EP, who the Claimant referenced as being affected primarily due to a health condition, gave evidence that she understood SB’s email but it did not bother her too much.

[110]The Tribunal inferred that the Claimant would have been aware of EP’s view at the time, because they were fairly close as colleagues. The basis for this finding was that: the Claimant and EP worked the same shift in the week the 18 April email was sent; the Claimant replied on EP’s behalf when SB asked why she was not showing as ‘ready to take calls’, the Claimant knew EP had a health condition; and, the two kept in contact after the Claimant’s assignment terminated (EP sent the Claimant her interview with Tracy Dawson of Pertemps) meaning they had shared personal contact details. The Claimant’s awareness that others were not really concerned, particularly EP who he specifically referred to as being impacted in his evidence, cast doubt on the reasonableness of his asserted belief that the public interest was engaged. It follows that the Tribunal did not find that this disclosure was made with a reasonable belief that it was being made in the public interest.

[111]Further, the Tribunal considered that given the Claimant’s acknowledgment that he did not understand the public interest at the time of his disclosures, he could not reasonably have considered them to be made in the public interest.

[112]Having found an absence of reasonable belief that the disclosure was made in the public interest, the Tribunal did not need to determine whether it tended to show that the Respondent had failed to comply with a legal obligation or whether the health or safety of an individual was being put at risk.

[113]For completeness, the Tribunal considered that whilst the Claimant may have had a genuine belief that SB’s email tended to show a failure to comply with the EqA, it did not find that the Claimant genuinely believed that his disclosure tended to show that an individual’s health or safety was likely to be endangered; there was no physical locking of toilets and the evidence was that even before clarification of the email, staff could use the toilet after 5pm, as the Claimant demonstrated on 20 April 2023.

[114]That said, given the Tribunal’s finding that that there was no reasonable belief that either disclosure was made in the public interest, it follows that the Claimant did not make protected disclosures. The burden of proof does not shift to the Respondent. Therefore, whilst the Claimant’s assignment was terminated by the Respondent, this was not done because he had made protected disclosures. The s48 detriment claim falls away. _Approved By: