Mr S Rahim v Associated British Ports: 3312501/2023 and 3303542/2024
EMPLOYMENT TRIBUNALS
Case No 3312501/2023, 3303542/2024
Between
Mr S RahimClaimantAssociated British PortsRespondent
Before
Employment Judge DickMs S Ismail (instructed by counsel) for claimantMr P Smith (instructed by counsel) for respondentDate 11 August 2026
JUDGMENT
Save as specifically noted, the following is unanimous decision of the Tribunal:[1]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed. (All members of the Tribunal agree that the respondent breached the implied term of mutual trust and confidence in the three ways set out in the reasons below; Mrs Boot alone considered there had been a fourth such breach.)[2]There was not a chance that the claimant would have been fairly dismissed in any event.[3]The claimant did not cause or contribute to the dismissal by blameworthy conduct and it is not just and equitable to reduce the basic or compensatory awards payable to the claimant.[4]The complaints of direct race discrimination relating to the claimant’s suspension and the respondent portraying the claimant as a threat to employees are not well-founded and are dismissed.[5]All complaints of race discrimination save for those referred to above are dismissed upon withdrawal.[6]The complaints of being subjected to detriments for making protected disclosures are not well-founded and are dismissed. The complaints were also not presented in time and it was reasonably practicable to have presented them in time.[7]The Tribunal all agree that the complaint of unauthorised deductions from wages is well-founded.a. The majority (Employment Judge Dick and Mrs Brosnan) find that the respondent made unauthorised deductions from the claimant's wages by failing to pay him all of the contractual sick pay to which he was entitled from 3 August 2023 to 12 January 2024. The entitlement was full pay for 16 weeks from 31 July 2023 and half pay thereafter.b. Mrs Boot finds that the respondent made unauthorised deductions from the claimant's wages by failing to pay him full pay from 3 August 2023 to 12 January 2024.[8]The complaint of breach of contract is well-founded. The respondent breached the claimant’s contract by failing to pay the claimant’s wages as set out in the preceding paragraph.[9]Remedy for those complaints which are well-founded will be determined at a later hearing.
REASONS
[1]On 5 July 2023 the claimant’s line manager Mr Hodgkin heard him loudly conversing with another employee outside the headquarters of their employer, the respondent. What the claimant said in that conversation, particularly about Mr Hodgkin, became the subject of disciplinary proceedings against the claimant, during which he was suspended. As a result of those proceedings, the claimant was issued with a final written warning. There was a dispute between the parties about whether the claimant’s suspension was in fact lifted after he was informed of the outcome. The same day the written warning was issued, the respondent sent the claimant a second letter which said that it was considering dismissing him under its “other dismissals” policy. Shortly afterwards, the claimant began what was to be a long period of sick leave and also indicated that he intended to appeal against the final written warning. The respondent declined to pay the claimant his contractual sick pay, seeking to rely on a term in the employment contract which permitted sick pay to he withheld during a disciplinary process (the respondent’s case being that the appeal was part of the process). After a series of grievances and appeals, which were not decided in his favour, the claimant resigned. The claimant’s case is that he was constructively dismissed, for a number of reasons which included the withholding of his pay, the suspension and the respondent’s conduct of the disciplinary process, as well as various things Mr Hodgkin did before 5 July, including requiring him to work excessive hours and seeking to remove key responsibilities from him. The claimant also says that he was subjected to race discrimination during the disciplinary process and that some of Mr Hodgkin and the respondent’s treatment of him was motivated by what he says were protected disclosures he made in July 2022 and March 2023. The claimant further says that he should have been paid full pay, or in the alternative his contractual sick pay, after he went off sick and that the respondent’s failure to do so amounted to a breach of contract and/or unauthorised deductions from wages. The complaints were presented on two claim forms, as we explain in more detail below, following two periods of early conciliation. CLAIMS AND ISSUES, PROCEDURE[2]The issues for us to decide were set out in the List of Issues, which is appended to these reasons. The list was agreed between the parties, who were professionally represented, in accordance with the orders Employment Judge Tueje made at a preliminary hearing on 4 December 2024. No application was made during the course of proceedings to amend the list. The final version of the list with which we were provided omitted what had originally been Issues 5.2.3 to 5.2.7 (said to be acts of direct race discrimination) as those complaints were withdrawn at the start of the hearing. The part of the complaint summarised in Issue 3.2.9 (i.e. that failure to investigate the claimant’s complaint about what we refer to below as the first disclosure was a breach of the implied term of trust and confidence) was withdrawn by Ms Ismail on the claimant’s behalf during the course of closing submissions so we say no more about that in these reasons.[3]The final list of issues also omitted what had been Issue 2, relating to a preliminary point which, Mr Smith indicated at the start of the hearing, the respondent no longer wished to pursue. (Note: As is explained more fully in the Appendix below, the renumbering which followed the removal of the original Issue 2 led to a numbering error where the final list contained two sets of issues 3.2 to 3.4. The first set related to liability for unfair dismissal, and when we are referring to these we say simply, for example, “Issue 3.2.8”. The second set related to remedy for unfair dismissal, and when we are referring to these we say for example “Remedy Issue 3.2.8”.)[4]Before the evidence was called we explained to the parties that we would read the witness statements and the documents on the agreed reading list, but otherwise but they should be sure to refer us to any documents of relevance in the agreed bundle of documentary evidence (“the bundle”) during the course of the evidence or submissions.[5]By agreement, we indicated that we would not need to hear evidence about remedy at this stage, with the exception of the following Remedy Issues: 3.2.4, 3.2.5, 3.2.9, 3.2.10, 6.5 (i.e. Polkey reduction and contributory fault).[6]After taking time to read the statements, we heard evidence from the witnesses. In each case the usual procedure was adopted, i.e. their written statements stood as their evidence-in-chief and they were then cross-examined. The claimant gave evidence and the respondent called the following of its employees:a. Ms Marina Wyatt, the respondent’s Chief Financial Officer at the material timeb. Ms Helen Dawe, Senior HR Business Partnerc. Mr Paul Ager, who investigated an incident in July 2022d. Mr Ben Hodgkin, the claimant’s line managere. Mr Martin South, who conducted the disciplinary investigation concerning the claimantf. Ms Lucy Cavallo, Head of HR Shared Services and Systemsg. Mr Mani Atwal, now the respondent’s Chief Financial Officer, who chaired the disciplinary meeting concerning the claimanth. Mr Ian Henderson, who decided the claimant’s appeal against Mr Atwal’s decisioni. Mr Bryan Davies, who dealt with the claimant’s grievancesj. Mr Paul Bristowe, who decided the claimant’s appeal against Mr Davies’ decision.[7]Over the course of the case we agreed, with the consent of the parties, that some photographs of the outside of the respondent’s building could be added to the bundle of evidence.[8]At the conclusion of the evidence we heard oral submissions from both counsel, supplemented by written submissions from Ms Ismail. We indicated that we would issue a reserved judgment.
FACTS
[9]We find the following facts on the balance of probabilities. Where facts were not in dispute we simply record them; where we have needed to resolve disputed facts we make that clear. We have not made findings on every dispute of fact presented to us, but merely on those which assist us to come to a decision bearing in mind the List of Issues.[10]In this case the claimant relies on what he says were two protected disclosures. They appear out of chronological order in the List of Issues but when we refer to the first disclosure, we mean the first in time rather than the first in the List. We should also make clear that while we use the word disclosure for the sake of convenience, the respondent does not accept that the claimant made protected disclosures within the meaning of s 43B Employment Rights Act 1996.[11]Unless we say otherwise, the findings below are made unanimously. The claimant's role etc.[12]The respondent, a statutory body constituted by section 5(1) of the Transport Act 1981, is the owner and operator of 21 ports in the United Kingdom. The claimant started employment with the respondent on 6 January 2020 as Head of Contract and Cost Management. Although based at the port of Ipswich he regularly worked at various of the respondent’s sites.[13]As his job title implied, the claimant headed the respondent’s costs and contracts team. That team was a part of what was at the material time known as the respondent’s group projects team (which later became known as the major projects team). From September 2021 the group/major projects team was led by Mr Ben Hodgkin, who was the claimant’s line manager. Separate to the group projects team was the procurement team.[14]The respondent undertook major capital projects and, as the claimant uncontroversially put it in his witness statement, compliance, governance, and reputational risk were particularly important. The claimant’s role was considered to be a senior management role. It was “group wide” and involved supporting both the development and delivery of the capital projects. Part of his role was to review and challenge cost estimates, contract structures and risk assumptions before capital expenditure was approved by the respondent’s board. He had particular responsibility for projects where capital expenditure exceeded £ 20 million, or where projects under that threshold were considered to be high risk. The role inevitably involved the claimant questioning assumptions, challenging proposals and, at times, disagreeing with colleagues.[15]The claimant’s job description was in the bundle. It recorded: “The purpose of this role is to ensure we optimise value by allocating contractual risks appropriately and drive proper contractual correspondence during execution.” Part of the text under the heading “Scope” was: “Typically projects relevant for Group Projects will range between GBP 20 mill and 150 mill and this role will be assigned to support projects under development as well as projects under execution.” (The word “delivery” was sometimes used in place of “execution” during the course of the evidence.)[16]In the course of its projects, the respondent entered into contracts with contractors, some of which were subject to the Utilities Contract Regulations 2016 (“UCR”), also known as “the procurement rules”. The UCR establish a procurement regime applying to entities operating in sectors which include maritime ports. They apply, with some exceptions, to capital works, supply contracts and service contracts whose value exceeds a particular threshold.[17]Consultancy services for certain of the respondent’s projects were covered by the Group Professional Services Framework Contract (“the framework”) which contained provisions governing supplier appointment, including that no services were to be provided without an “executed call-off contract” in place. All agreed that the claimant initially had responsibility for “rolling out” the framework into the regions and “embedding it” – there was a dispute between the parties as to whether the claimant’s responsibility for overseeing the framework should have continued after the roll-out was complete; we return to that later.[18]One project of the respondent was the Immingham Eastern Ro-Ro Terminal (“IERRT”, also known as Project Sugar). This involved a contractor called Kerr Consulting Ltd. Another project, Project Azul, involved a contractor called Ramboll. Performance Development Reviews (PDRs)[19]We were shown PDRs completed by the claimant and his line managers. These consisted of goals set at the start of the year, followed by records of a mid-year conversation and then of an end of year meeting between the claimant and his line manager.[20]The 2020 PDR, completed with the claimant’s previous line manager, recorded he was “on track” to meet his goals. It was broadly positive, although by way of developmental feedback (rather than as any disciplinary or informal warning) the manager did note that the claimant would “benefit from being more attentive to how he gets his stakeholders on board without hurting the ego on the other side”. His overall rating was “[goals] met plus”, in between the highest and second highest ratings.[21]The 2021 PDR was also completed with a previous line manager. The mid-year conversation was broadly positive. The following was recorded: “A key development point will be prioritisation and time management ensuring 'out of scope' elements or minor priorities do not take a disproportionate amount of his time.” The end of year meeting noted that the claimant’s objectives had been exceeded, giving him the highest of the possible performance ratings.[22]The 2022 PDR, completed with Mr Hodgkin, records the end of year meeting happening a little late (25 January 2023) with (amongst other things) the following noted as a goal: “Further embedment of the Group Professional Services Framework Contract and establish an ownership model for the regions” (see our reference to rolling out and embedding above). The claimant was again given the highest of the possible ratings.[23]Before the events with which we are concerned, no adverse disciplinary findings were recorded against the claimant. In fact, there was no suggestion that he had ever been the subject of any disciplinary proceedings or concerns. Mr Hodgkin made clear that he agreed the claimant was good at his job. The claimant’s employment contract etc.[24]A document in the bundle set out the terms and conditions of the claimant’s employment. Relevant parts are as follows: 5. EXCLUSION FROM WORK You agree that the Company may require you not to perform some or all of your duties and may also exclude you from its premises […] If the Company takes such action it will not constitute a breach of your contract of employment. The period of any such action will not exceed 6 months in any 12 month period. Your salary and other contractual benefits will not cease to be payable by reason of such action. […] 8. HOURS OF WORKa. Your hours of work are such as may from time to time be laid down by the Company and may be varied or increased according to the requirements of the work upon which from time to time you may be engaged. […] You are expected to work those hours required to complete your duties and you are not eligible for overtime payments.b. Your hours of work may be varied according to the needs of the Company and the duties you are undertaking. […] 13. HOLIDAYS […]c. Your leave must be taken on dates agreed with your line manager. […] 15. SICK PAY SCHEME a. Payment of sick pay is subject to the rules and procedures from time to time and for the time being in force regarding absences from work owing to sickness. b. The following payments will be made during absences on account of sickness in any period of twelve months, subject to you providing an appropriate self-certificate or medical certificate and subject to clause 15a above and the other conditions detailed in the relevant rules and/or policy. [The table which followed specified that for employees with a length of service “3 years but less than 5 years”, full salary (less statutory sick pay, “SSP”) would be paid for 16 weeks, followed by half salary (plus SSP) for 16 weeks.] […] 20. DISCIPLINARY RULES a. Breaches of discipline will be dealt with speedily following an examination of the circumstances. In cases justifying the use of the formal disciplinary procedure you have the right of a personal hearing at which you may be accompanied by a work colleague of your choice or by a trade union official. You also have the right of appeal if you are dissatisfied with the decision of the first hearing and at an appeal hearing you may be accompanied by a work colleague of your choice or by a trade union official. b. Disciplinary action may result in a written warning, suspension without pay, or dismissal. Gross misconduct may justify summary dismissal (i.e. dismissal without notice or payment in lieu of notice). c. The Company may suspend you from work temporarily on full pay in instances which the Company considers to be particularly serious or where further investigation is required. d.[…] e. The Disciplinary Rules (with the exception of sub-clauses 20b and 20c) and Procedures referred to in sub-clause 20d above are not contractual and do not form part of your terms and conditions of employment. […] 22. INDIVIDUAL GRIEVANCE PROCEDURE [This made provision for dealing with written grievances where grievances could not be resolved informally, including an appeal process.][25]There was a written policy on Company Sick Pay, “CSP”, which we need not set out here. In the claimant’s case, CSP was the pay set out in clause 15 above.[26]The respondent’s attendance management policy said the following, so far as is relevant, under the heading “Company Sick Pay”: The Regional Head of HR is authorised, with the agreement of the appropriate Senior Manager, to withhold payment of Company sick pay in the following circumstances:• […]• If the employee goes off sick during a disciplinary or capability process• […] Where possible, a meeting or telephone conversation should take place with the employee before this action is taken.[27]Although the policy itself contained a specific provision that said that it did not form part of the contract of employment, Ms Ismail accepted on behalf of the claimant that by virtue of clause 15 above, the policy was incorporated into the claimant’s employment contract. Likewise, Ms Ismail accepted that clause 20 incorporated the respondent’s disciplinary policy, notwithstanding a provision in the policy that it was “not contractual”.[28]So far as is relevant, the respondent’s disciplinary policy contained a provision to the effect that where there was an allegation of misconduct it may be necessary to suspend on normal pay as a “precautionary measure while the case is being investigated”. Such a suspension was “not to be regarded as a form of disciplinary action and should be for as short a period as is reasonably practicable.” During a period of suspension, employees were expected to remain available for work if requested and for investigatory meetings if required. The policy provided for an investigation stage which would “normally be concluded no later than ten working days from the alleged misconduct, taking into account the availability of witnesses etc”. A “reasonable request” to be accompanied would be considered and “generally agreed” if it did not cause unacceptable delay or affect the effectiveness of the investigation process. It may be appropriate, the policy said, “to hold an investigation meeting without advance warning”. The policy provided for a disciplinary hearing to be scheduled “to take place at the earliest opportunity and normally no later than ten working days after the investigation stage is complete”. It provided for sanctions including a final written warning in circumstances which included “a very serious breach of general discipline (but not gross misconduct) or an alternative to dismissal for gross misconduct because of accepted extenuating circumstances” and for “instances of misconduct that we consider sufficiently serious to warrant a final written warning even though there are no active warnings on a colleague's record or if it is a first offence”. An appeal must normally be made in writing within five working days. Arrangements would be made to “hear the appeal as soon as reasonably practicable”. On appeal a sanction could not be increased. An appendix to the policy included nonexhaustive examples of misconduct and gross misconduct. So far as is relevant they included: Misconduct• Insubordination, including failure to follow a lawful and/or reasonable instruction• Unacceptable behaviour, attitude or language Gross misconduct• Serious unacceptable behaviour, attitude or language towards a colleague or Customer, for example violence, threats, rudeness, abuse, victimisation, bullying, harassment and intimidatory behaviour (regardless of whether or not this results in a formal complaint from the colleague or Customer)• Discrimination, intimidation or victimisation based on race, sex, gender reassignment, sexual orientation, age, religion or belief, marriage or civil partnership, pregnancy and maternity or disability[29]There was also an “Other Dismissals Policy”. So far as is relevant, it said: Purpose The purpose of this policy is to detail how to formally terminate the employment of an employee in circumstances that are not covered by the Disciplinary Policy; the Capability Policies; or the Retirement Policy. Scope This Policy applies to everyone that works for or on behalf of ABP (including any group company of ABP). Policy Statement This policy is used when terminating employment during or at the end of their probationary period or an employee coming to the end of a fixed term contract[30]The respondent also had a Whistleblowing Policy which was in the bundle, though we were not referred to in depth during the course of proceedings.[31]The parties agreed that none of the above policies etc. contained an explicit definition of “disciplinary process”. The first disclosure – July 2022[32]On 6 and 7 July 2022 the respondent conducted a training course, which was attended by the claimant. During the course, an employee described as a “senior leader” was alleged to have made discriminatory/homophobic comments. The employee was not a party or witness to these proceedings and we do not consider it necessary to name him, so we refer to him simply as Mr A. The first complaint about Mr A’s conduct was made by Mr Steven “Monty” Monteith in an email of 11 July 2022. On 21 July 2022 the respondent’s Chief Human Resources Officer Ms Rumsey emailed the claimant to say that she understood he was aware of the comments that had been made and wished to discuss them with him. We accept the claimant’s evidence that the reason Ms Rumsey was aware of all of that was that he had complained independently about Mr A’s comments.[33]Mr Ager was tasked with investigating the allegations. He interviewed Mr A, the claimant and Mr Monteith. We were provided with notes of those interviews. In brief summary, Mr A was alleged to have made clear by his behaviour that he did not want to be doing the training, but the particular complaint concerned a comment he made on two separate occasions. Both the claimant and Mr Monteith told Mr Ager that when someone else had mentioned “people from the LGBTQ+ community” Mr A had said words to the effect that he had brought his children up right. Mr A said he could not remember anything specific but did not directly deny making the comments.[34]Mr Ager wrote to Mr A on 22 August 2022. He said that he did not consider formal disciplinary action necessary or appropriate but that there was evidence that demonstrated a need for further training/education surrounding diversity and inclusion in the workplace. In his written evidence Mr Ager said that he had taken into account mitigating factors and had considered that the comment was clumsy and could be appropriately dealt with by additional training (i.e. rather than formal disciplinary action).[35]We accept that in his interview with Mr Ager the claimant disclosed information to his employer which he reasonably believed tended to show that a person (i.e. Mr A) had failed to comply with a legal obligation to which he was subject (i.e. the obligation under the Equality Act 2010 not to discriminate against or harass other employees). We are however somewhat doubtful that at the time of making the disclosure the claimant reasonably believed that his disclosure was in the public interest, though we accept that he made the disclosure in good faith for good reasons. The claimant chose not to include a complaint of victimisation in his claim; instead he has put it as a whistleblowing complaint. It seems to us that if the claimant is right to say his conduct amounted to whistleblowing, then so too would the conduct of almost any employee who assisted in an investigation, whether as a witness or a complainant, into any alleged breach of the Equality Act. But ultimately we did not need to resolve this point, since we find as a fact that what the claimant said in July 2022 had no influence whatsoever on the way he was treated by the respondent or any of its employees in 2023. We accept in particular Mr Hodgkin’s evidence that he was entirely unaware of any of this until the claimant presented his claim to this Tribunal. More widely, the claimant produced no evidence sufficient even to raise the suspicion that anybody else took any of this into account when dealing with him in 2023. Quite simply, there was a proper investigation into Mr A, by Mr Ager, and neither Mr A nor Mr Ager had any involvement in the treatment of the claimant in 2023. The claimant rightly assisted with that investigation and there is simply no reason to think that anybody in 2023 had taken against him because of that. The second disclosure – March 2023 (a) Background – IERRT, Kerr consulting etc[36]On 10 March 2023 the respondent’s then chief financial officer Ms Marina Wyatt emailed the claimant. She was enquiring about an “approval to procure” she had been asked to sign off, which appeared to her not to have followed procurement policy. The query related, the parties agreed, to the involvement of Kerr consulting in the IERRT project. She asked the claimant to give her the background and to explain why procurement (i.e. the procurement team) were not involved and also to explain why the respondent appeared to be “doubling up on suppliers”. She wondered also if “we”, i.e. the respondent, were “spending our money wisely”. She concluded by noting: “This is the first one in your patch […] escalated to me so hoping this is isolated?”.[37]On 15 March 2023 the claimant sent a lengthy response to Ms Wyatt. Most of the contents of that email, which we refer to as the first part, dealt with the issue of IERRT/Kerr. As we deal with in more detail below, this part of the email was not said to be the second disclosure, but it is relevant context to it. At the start of the email, the claimant wrote: In summary, we took advice from procurement and complied with their requests throughout the procurement process and asked for clarification where we thought this was not aligned to procurement policy. Kerr Consulting cannot be viewed as 'doubling up’ on services as the scope of their services on IERRT is different to Mace (LOT 1 of the Framework Contract). This role is considered essential and is value for money.[38]That initial passage was an accurate summary of what the claimant went on to set out at some length in most of the rest of the email: Procurement were engaged as they are on all Framework Contracts (Group Projects) as per the agreed RACI (Group Projects and Procurement). I have attached the Framework Handbook that is to be used on all Framework Contracts [..]. This is aligned to the Procurement Policy and sets out who does what. Further, the Framework Contract allows call off contracts to be either direct awarded or through mini competition. All the rates and prices have been submitted during competitive tender and are already tested. […] The procurement team have been advising that certain policy requirements do not need to be met. This includes for example using email to issue and manage procurement events instead of In-tend […] We subsequently reviewed the procurement policy and advised the procurement lead that unless there is a change in policy we would require the procurements to be managed as per policy […] and that procurements should proceed through In-tend as agreed for all Framework contracts as this maintains a robust audit trail.[39]By way of explanation, as we understand it RACI is a policy/management tool/methodology relating to procurement and Intend was a portal to record procurement events, used to track compliance with procurement policy.[40]The claimant then set out the detail of what group projects and procurement had done, including where the claimant had at points during the process challenged procurement’s approach relating to compliance with the procurement policy. No suggestion is made in the email that what eventually happened (i.e. following those challenges) was ultimately in breach of the policy or the law. The claimant then provided a more detailed explanation of why Kerr’s involvement was considered to be appropriate.[41]Between 15 and 17 March the claimant and Ms Wyatt exchanged further emails on the subject, in which the claimant clarified various details. On the 16th Ms Wyatt wrote: I think going forwards that Procurement Policy should be followed. Pretty sure it is clear in the existing policy that Nick or me needs to approve single source procurement. Please check and revert. I wasn’t aware that Procurement had indicated that Intend didn’t need to be used for the PSC, that doesn’t seem right to me but there may have been specific reasons at the time. I’m a bit of a purist in that I want the RACI stuck to. I think your summary is that all the way through the process you followed direction provided by Procurement. Just show me the evidence and then I will get back in my box. Please ensure going forwards that you stick to policy and if you want to deviate that I am aware of it upfront.[42](G)PSC was the Group Professional Services Contract, the framework we refer to above.[43]On 17 March the claimant said “The contract which is to be executed is in line with the framework rates and fees which have been agreed with Kerr Consulting.” And, shortly after: “The contract which is to be executed is in line with the framework rates and fees which have been agreed with Kerr Consulting.” On the 20 March the claimant sent Ms Wyatt a detailed email dealing with the applicable rates to be paid to Kerr.[44]In our judgment, the part of the claimant’s 15 March email which dealt with IERRT was the claimant’s answer to Ms Wyatt’s query – he was explaining there (and in the later correspondence on the subject) that he had taken the appropriate actions to ensure compliance with legal requirements; the ultimate impression is that he was saying that there was compliance and that where there were departures from policy they were justified. All of that took up the bulk of an email which, in the form presented to us, took up almost three pages of close-typed text.[45]Note that there is a material distinction between, on the one hand, breaches of regulations which applied to the respondent (which would be breaches of legal requirements) and, on the other, mere breaches of the respondent’s own policies (albeit that the purpose of those policies was no doubt, at least in part, to ensure that there were no breaches of legal requirements). (b) Project Azul – Second disclosure (15 March email)[46]At the end of that long 15 March email, the claimant said the following, which was on his case the second disclosure: Project Azul is only other scheme that I am aware of that is currently engaging a supplier without a contract in place. The contract required would be a wrap up of services, both delivered to date and ongoing. Ben [Hodgkin] was responsible for engaging with this consultant and I advised him that you have asked this question and he responded that he will speak to you about it.[47]The supplier referred to here, the parties agreed, was Ramboll. As the List of Issues makes clear, it is the claimant’s case that this passage was a protected disclosure to Ms Wyatt about Mr Hodgkin failing to follow the procurement rules by ensuring that a contract was in place with the consultant before work started on the project. (During the course of his oral evidence the claimant suggested that the earlier part of the 15 March email, dealt with in depth above, contained further protected disclosures. No application was made to amend the claim or the list of issues and so we make no findings about that.)[48]What information is in fact disclosed must of course be viewed in the context of the existing knowledge of the recipient. We accept that, in its context, the claimant was telling Ms Wyatt that work was being done on project Azul by a supplier without a contract in place – that was the information he disclosed. We do not however accept that the claimant would reasonably have believed (nor indeed that Ms Wyatt would have appreciated) that this was a breach of the regulations (as opposed to the respondent’s policies). As Mr Hodgkin explained in his evidence, there was no potential breach of the regulations as they did not apply to contracts of that size. As Ms Wyatt explained in her written evidence, non-compliance with procurement policy, for example the appointment of a supplier without a competitive tender, was permitted if “signed-off” by her in the appropriate circumstances.[49]We further find that the claimant’s assertion, made as part of the claim and repeated in his sworn evidence, that at the time he believed that it was in the public interest to disclose the information to Ms Wyatt, lacked credibility. While there is no requirement in law (or indeed the respondent’s policy) that a protected disclosure be identified as such, we would expect someone in the claimant’s senior role to have made it very clear if he thought he was blowing the whistle, rather than including the disclosure at the bottom of a long email about something else. It was not mentioned in the claimant’s first grievance (30 July 2023). Instead, the first suggestion by the claimant that he was blowing the whistle was not made until the grievance of 13 August (see below) and then only in connection with the July 2022 incident – the March 2023 correspondence was mentioned only in the context of a complaint about Ms Wyatt unfairly pursuing the claimant about breaches of procurement policy, rather than being identified as an act of whistleblowing. (This seems to us to be a reasonable explanation for why Ms Wyatt did not mention the second disclosure in her witness statement – she had understood that the complaint was about her conduct in relation to her enquiries about IERRT, which her statement did deal with.)[50]We also note that the claimant agrees that he never followed the issue up. In the circumstances – and in particular taking into account again the claimant’s role and seniority – we consider that if the claimant had indeed thought he was making a disclosure in the public interest, he would have done so. More significantly, the tone, language and the context of the communication make clear that the claimant was, as was suggested by the respondent, raising Azul as an example of where a similar approach to his own on IERRT had been taken, so as to show that he had done nothing wrong – i.e. he was doing the opposite of identifying wrongdoing. The issue was being raised, not because the claimant thought it was in the public interest, but essentially in his own defence to what he thought were accusations that he had not followed policy/regulations. (We should make clear that nobody has suggested that the claimant’s approach to IERRT was in fact wrong.)[51]We accept the evidence of Ms Wyatt that she thought very little of what the claimant said at the end of the email – it “didn’t raise any alarm bells,” and she “did not think it was a big deal”. Indeed, the point was so trivial that she did not even recall what she and Mr Hodgkin had said when they discussed it. We also accept Mr Hodgkin’s evidence to the effect the he had discussed the issue with Ms Wyatt after the claimant had told him that he had told Ms Wyatt about it, but that he, Mr Hodgkin, thought little of it – he did not think that the claimant was “telling tales”, as he put it; “it was a complete non-event”, a minor issue which was easily resolved. In short, none of the actions of those later dealing with the claimant were in any way influenced by what the claimant had disclosed. We accept Mr Hodgkin’s evidence that what the claimant had revealed about Azul was an internal governance issue, i.e. at worst a minor breach of procurement policy – being under a particular threshold, it did not engage the UCR or any other legal requirement. Changes to the claimant’s role[52]It was the claimant’s case that following the 15 March email the conduct of the respondent towards him, and in particular of Mr Hodgkin, changed for the worse. In particular, he says that Mr Hodgkin reduced or tried to reduce/change/diminish his role in a number of ways and that professional disagreements began to be viewed as behavioural issues. As Issue 3.2.4 has it, Mr Hodgkin “informed the claimant of changes to his role”, referring to paragraph 11 of the second particulars of claim, which asserts that this was done in the meeting of 5 July (see below). Likewise, Issue 5.8.1 complains that Mr Hodgkin tried to impose changes to the claimant’s role. The claimant’s statement referred to three particular things:a. It was suggested that Cost Management should sit within the Finance function rather than within Contracts and Cost Management.b. The claimant was told to focus on projects in delivery rather than projects in development, notwithstanding that the latter formed a significant and established part of his strategic remit (See Issue 3.2.2 Instruction to focus on delivery).c. The management of the Group Professional Services Framework was to be removed from his role. (See Issue 3.2.4: Mr Hodgkin informing the claimant of changes to his role)[53]Submissions made on behalf of the claimant also raised a fourth, relating to the Project Management Office, “PMO”, function. The move of PMO occurred in or about June 2023, 3 months after what was said to be his disclosure to Ms Wyatt. Mr Hodgkin’s original statement had asserted that he did not remove that responsibility from the claimant as it had never been part of his role, whereas in a corrected statement Mr Hodgkin said that in June 2023 the PMO manager, who had been “under” the claimant’s management, left the business and his responsibilities were reallocated.[54]These changes, the claimant says, went to the core of his role and would have materially reduced his responsibilities. Some or all of this was discussed at a meeting between the claimant and Mr Hodgkin on 5 July. We deal with the detail of the meeting below, but first we address the claimant’s concerns about his role being diminished. We accept the claimant’s case that he also discussed the changes with both Mr Hodgkin and Mr Atwal at various other meetings[55]Regarding the transfer of management of the PSF to the procurement team, Mr Hodgkin told us that this had been agreed with the respondent’s CFO Ms Wyatt. Every other framework was already under the management of procurement and the respondent, said Mr Hodgkin, took the view that it would ensure consistency of approach if the same were true of the PSF. Mr Hodgkin was also of the view, he said, this would help support the claimant with his volume of work load. He felt the claimant was focussing on low value, low risk PSF issues leaving him less time to carry out the core elements of his role. Mr Hodgkin felt, he told us in his oral evidence, that it had been appropriate for the claimant to be involved in the PSF at the start but that once it was embedded it was more appropriate for it to be managed by procurement. We accept all of that. It was a decision with which the claimant plainly disagreed, but which Mr Hodgkin made in good faith and was entitled to make. It was not done to undermine the claimant or to diminish his role. The claimant’s case was that discussions about the transition initially took place without him despite it forming a central part of his role. We can see no merit in the claimant’s complaint that Mr Hodgkin should not have discussed it with his own managers before discussing it with the claimant.[56]We similarly accept that the respondent would have been entitled to decide that that Cost Management should sit within the Finance function rather than within Contracts and Cost Management, and further note that the claimant only says in his statement that this was suggested, rather than that it happened.[57]So far as the instruction to focus on delivery is concerned, we again accept that this was something Mr Hodgkin was entitled to do. We do not accept that a change in focus would amount to materially diminishing the claimant’s role. We further note that Mr Hodgkin made this decision in the context that the claimant was complaining that he was overworked. We accept Mr Hodgkin's evidence that he was of the view that the claimant tended to become too involved in areas which were not his direct responsibility . This was supported both by the PDRs conducted by Mr Hodgkin but also, to some extent, those conducted by the claimant’s previous line manager (see above). Mr Hodgkin was also entitled, as he did , to take the view that the highest levels of capital expenditure occur in the delivery phase of the project and therefore cost and contract management is more critical during this phase of the project, so it was better for the claimant to focus on that phase. We accept that the claimant genuinely disagreed with that, but that does not mean it was not a reasonable management decision.[58]More broadly, we consider that there is no basis whatsoever for the claimant’s contention that any of the four decisions had anything to do with the first or second disclosures. For the reasons we have already set out above, nobody involved had the slightest concern about the disclosures the claimant had made, and so we reject the suggestion that there was a concerted effort to diminish the claimant’s role in retaliation for his disclosures. Meeting with Ben Hodgkin 5 July 2023[59]The parties agreed that a meeting took place between the claimant and Mr Hodgkin on 5 July 2023. We were not provided with notes of the meeting, though the meeting was covered by Mr Hodgkin in a statement he made about a week later for the disciplinary investigation concerning the claimant. Mr Hodgkin’s recollection was that one of the things discussed at the meeting was the transfer of management of the PSF to the procurement team; this was also the claimant’s recollection. There is no dispute that in the meeting the claimant made clear to Mr Hodgkin that he did not agree with the decision. Nor did there appear to be any dispute that the claimant indicated to Mr Hodgkin that, although he did not agree with the decision, he would “come round to the idea”, i.e. learn to live with it.[60]In his later note of the meeting, Mr Hodgkin recorded that they also discussed the claimant’s working relationship with Mr James Pang (as will be evident from what the claimant was to say later that day; see below). The claimant recalled that Mr Hodgkin told him Mr Pang was suffering emotionally. Mr Hodgkin’s recollection was that Mr Pang had complained that the claimant was aggressive, confrontational and undermining towards him. We accept that Mr Pang made a complaint of that nature to Mr Hodgkin, but in the circumstances we were not in a position to, nor did we need to, make findings about whether the complaint was well-founded. Suffice it to say that the claimant had a very different view to that of Mr Pang. What is significant is that the matter was discussed at the meeting, and that, as Mr Hodgkin told us, he emphasised to the claimant the importance of not undermining other members of the leadership team with wider members of the team or consultants.[61]The claimant also says that at the meeting he explained that he was working very long hours and was experiencing stress and exhaustion, and that no support or workload redistribution was offered to him. While we accept that the claimant complained to Mr Hodgkin about having to work long hours (as Mr Hodgkin said, the claimant mentioned pressure due to the challenges with the IERRT tender production), we do not accept that he made a formal request for help. That is significant in the context that the claimant was a senior employee who managed his own workload and also in the context of the ebb and flow of work which we describe below.[62]The claimant further says that at the meeting he asked for a day’s leave the following week (13 July) and that Mr Hodgkin did not give him clear approval. This was not raised as a specific Issue, so we deal with it briefly. Even on the claimant’s case, his request was not explicitly refused. We accept Mr Hodgkin’s evidence to the effect that the claimant was in a senior role, able to manage his own diary and working days and that he, Mr Hodgkin, never denied the claimant a holiday request. The claimant’s workload[63]It was the claimant's case that Mr Hodgkin set him unreasonable and unrealistic deadlines without providing support (Issue 3.2.15) and required him to work in excess of 37 hours a week, including evenings and weekends. We accept that at the material time the claimant worked long hours and that he found that particularly stressful. As we have already noted above, the claimant’s contract contained a specific provision that he might be required to work long hours at particular points. We have already accepted that he raised a concern about this in general terms to Mr Hodgkin in the meeting of 5 July. We do not accept that the claimant was set unreasonable and unrealistic deadlines; we accept Mr Hodgkin’s evidence that the deadlines were dictated by the projects, and that the claimant himself was involved in setting those deadlines; we also note that the claimant’s objectives for the year were agreed as part of the PDRs. As a senior employee, the claimant had control over his own working hours. We also note that there is something of a conflict between the claimant’s complaints that, on the one hand, he was overworked but, on the other hand, areas of responsibility should not have been taken from him. We do however accept that there is a distinction between workload – i.e. the amount of work – and remit – i.e. the sort of work – so that even if a particular sort of work, such as the PSF, were taken from the claimant, that still might not fully address his concerns about workload. Ultimately, we accept that the claimant, as was the case with other employees of the respondent in similar positions, was subject to an ebb and flow of work, which was considered by the respondent to be a part of the job. Given the claimant’s seniority and control over his own workflow, we do not consider the respondent’s view to have been unreasonable. The respondent did not require the claimant to work the hours he did without reasonable and proper cause. The incident on 5 July 2023: (1) Initial complaint[64]Some hours after the 5 July 2023 meeting, at around 5:45 pm, Mr Hodgkin went to leave the office for the day. (He and the claimant were both working that day at the respondent’s Central London headquarters.) On his way out of the bike store, on the ground floor of the building, Mr Hodgkin overheard a conversation between the claimant and another of the respondent’s employees, Mr Daniel Landi. The claimant and Mr Landi were standing on the street just outside the main entrance. As we explain below, we accept Mr Hodgkin’s account of what he heard, and accordingly we find the following. (We do not relate everything that Mr Hodgkin recalled, only those parts which are particularly significant.) Plainly the claimant was unhappy with what had happened at the earlier meeting and was not aware that Mr Hodgkin was listening. The claimant was speaking loudly to Mr Landi. He said: “he wants me sit down with James [i.e. Mr Pang], it’s too fucking late for that”. He made disparaging remarks about Mr Pang and the respondent’s Asset team. He said that Mr Hodgkin “said we should present a united front to the team, it's too fucking late for that" and that Mr Hodgkin was not listening to him. Mr Hodgkin had told him procurement can manage contracts, but “what the fuck does he know about contracts”. Mr Landi then then asked the claimant why he didn’t take Mr Hodgkin’s job – in our judgment clearly a flippant or jokey response to what the claimant was saying, rather than something intended to be taken seriously – and the claimant replied that he could and that he should not be reporting to Mr Hodgkin.[65]We accept that Mr Hodgkin was genuinely upset by what he heard, particularly as he had thought the issues had been dealt with at their earlier meeting. The claimant was loudly disparaging colleagues, including his line manager, using offensive language in a public place. Moreover, given, as Mr Hodgkin pointed out, that Mr Landi was a more junior employee, the claimant was doing precisely what he had just been warned not to do – undermining his colleagues in front of others. As Mr Hodgkin put it: “I felt that the Claimant had abused my trust in him, had been extremely disrespectful, seeking to undermine my position as leader of the team, had gone against my express request to manage internal conflict within the team sensitively.”[66]We accept the respondent’s point that since he was at or near the entrance of the building, there was the potential for the claimant’s conversation to be overheard by the respondent’s employees and perhaps even shareholders who may have been coming in and out of the building. The respondent is one of five occupants of the building identified by a sign near the front entrance. Though the claimant was wearing a lanyard, we consider that it would have required a very keen feat of observation for a passing member of the public to have identified the claimant as one of the respondent’s employees. (It is of course likely given the time of day and location, that members of the public would have been passing by – indeed the CCTV, on which see below, shows that.) We further think it most unlikely that any passing member of the public would have taken any interest in the conversation. Finally there is no evidence that anyone apart from Mr Hodgkin did in fact take any interest in, let alone any offence at, the conversation. The decision to formally investigate[67]Mr Hodgkin told us that he did consider whether to simply ignore what he had heard, or whether to raise the matter informally with the claimant. It would have been reasonable in our judgment for Mr Hodgkin to have done either of those things. Mr Hodgkin might well reasonably have considered that many employees, letting off steam, will say things about their managers, sometimes in unflattering terms, that they would not wish to be overheard. But we accept that what Mr Hodgkin did instead was also a reasonable choice, given the features we have set out above. He decided to speak to his own line manager Ms Wyatt, and to Ms Cavello of HR. After that the matter seems to have taken on something of a momentum of its own. Mr Hodgkin was advised that since he was the subject of most of the remarks he had heard, he should not deal with the matter informally himself, and so a decision to initiate a formal investigation under the respondent’s disciplinary procedure was taken collectively, we find, by Mr Hodgkin and Ms Wyatt with advice/input from HR. We accept Mr Hodgkin’s evidence that in all the circumstances he considered that his working relationship and trust with the claimant had broken down, that he felt the claimant’s behaviour was unacceptable and needed to be addressed – he felt that a line had been crossed. However, it is also significant, as we accept, that Mr Hodgkin did not think the trust had broken down to such an extent that the relationship was beyond repair. Investigation (first interviews)[68]On 7 July 2023 Mr South was appointed to investigate the allegation. He interviewed Mr Hodgkin on 11 July. Mr South began by asking Mr Hodgkin to explain the background relating to what he described as the falling out between the claimant and Mr Pang. The notes of that meeting were, it appears, the first record of the complaint – although Mr Hodgkin provided a written statement, that appears not to have been until 12 July. It is therefore not particularly clear how Mr South had been aware that there had been such a falling out; he said in his oral evidence that he thought he had been “briefed” by someone in HR. Having been so aware, we do consider that it was reasonable in the circumstances for Mr South to have enquired about the background. Mr Hodgkin told Mr South that the claimant had over the last two years been difficult to manage. The claimant could, he said, be quite abrupt and there had been some “flare-ups” with various people, and he had a difficult relationship with the procurement team. Mr Hodgkin mentioned a particular flare-up which Ms Wyatt had got involved with and another disagreement with a Mr Graham Power-Hosking, as well as the issue with Mr Pang. He then told Mr South about the 5 July meeting and what he heard the claimant saying to Mr Landi later that day, providing a lengthy account which included the details we have set out above.[69]On 12 July 2026 Mr South spoke to the claimant, with Ms Cavallo from HR present. The claimant, whose evidence we accept on this point , explained that he had seen Mr South in a kitchen and Mr South had asked him to join him for a few minutes, without explaining why; the claimant went with Mr South to a meeting room in which Ms Cavallo was already present. The meeting was essentially sprung on the claimant. In his witness statement, Mr South agreed that he had not given the claimant prior notice, as it had only been intended as an initial meeting to inform the claimant of the allegations and to confirm his suspension on full pay pending investigation. There are a number of difficulties with that proposition in our view:a. First, this was in fact the only time that Mr South spoke to the claimant, despite him telling the claimant during the meeting that they would “need to arrange in the next couple of days to allow you to explain what happened and we will ask you some questions as part of the investigation”. The claimant was understandably therefore under the impression that there would be a further meeting with Mr South. However, on 18 July Mr South emailed the claimant to say that the investigation was nearing its end and he could soon expect a written report. The claimant replied, pointing out that he had not had the opportunity to “feed into the investigation” himself. Mr South responded to say that he had sent the claimant a copy of the meeting notes that day and asking him to confirm whether they were a correct record. It seems to us that there was considerable confusion about the status of the meeting because Mr South did in fact go further than informing the claimant about the allegations and about his suspension – he took an account from the claimant, having read parts of Mr Hodgkin’s account to him.b. Second, the respondent’s policy states that a “reasonable request” to be accompanied would be considered and “generally agreed” if it did not cause unacceptable delay etc. But the claimant was not informed of his right to make such a request, so in reality did not have the chance to exercise the right.c. Third, although the policy does say that it may be appropriate to hold an investigation meeting without notice, Mr South was not particularly clear in his evidence about why it was necessary in these circumstances.[70]Despite his surprise, the claimant was able to offer an account of sorts – he said that he could not remember the conversation but that it was the sort of thing that he would say and he accepted it was inappropriate. We accept that the record the respondent provided us with was accurate in that regard. The claimant said that he had been in a high-pressure situation and had been incredibly busy.[71]Below we set out our reasons for our conclusion that the difficulties we identify above did not amount to an breach of the implied term trust and confidence.[72]Shortly before the claimant’s interview, also on 12 July, Mr Landi was interviewed in similar circumstances, i.e. without notice. When the allegation was summarised to him, Mr Landi said that the tone of the conversation did not sound unusual but he did not specifically remember. Decision to suspend[73]The claimant was told in the 12 July meeting that during the course of his suspension he was not permitted to discuss the case with colleagues, contractors or customers, that his IT access would be revoked and that he could not enter the respondent’s premises without permission. He was reminded about the existence of the respondent’s employee assistance programme.[74]Although in informing the claimant of his suspension Mr South used the customary formula that suspension is neutral act, we recognise that the suspension had a significant impact upon the claimant. There was some confusion as to whether the decision to suspend the claimant was taken before the meeting (as Mr South’s statement implied) or during the meeting having heard the claimant’s account (as Mr South told us in his oral evidence), but either way it was taken by Mr South. The respondent’s policy allowed suspension in the circumstances and in our judgment, given what the claimant was accused of and given what we find to be a genuine belief on the part of the respondent that relations with Mr Hodgkin had broken down (albeit not irretrievably), we consider that the decision to suspend was not without reasonable and proper cause. We can see no basis whatsoever for a conclusion that the decision had anything at all to do with the claimant’s race. We reject the claimant’s suggestion that Mr Landi, who was not suspended, was in materially the same circumstances to him. Mr Landi was a party to the conversation which the respondent was investigating, and had said something inappropriate, but what he had said was considerably less serious than what the claimant had said and it was not said in the context of him having been warned not to undermine his colleagues hours earlier. Nor is there any basis in our judgment for a conclusion that a hypothetical comparator of a different race to the claimant would have been treated any differently – aside from the confusion about precisely when the decision to suspend was made, there was nothing irregular about the decision; it was made in accordance with the respondent’s policy. While another employer might not have chosen to suspend in the circumstances, that does not mean suspension was an unreasonable course of action. Investigation (other interviews, report)[75]Having spoken to the claimant and Mr Landi, Mr South also interviewed Mr Pang and Mr Stephen Rimmer (who had been identified to Mr South by Mr Pang as someone who “had an interaction a couple of weeks ago” with the claimant). Mr Pang and Mr Rimmer were not witnesses to the events of 5 July; they were asked about their interactions with claimant over the previous few months. Mr South also spoke informally to Ms Wyatt. She told Mr South (as he noted in his report, dealt with below) that she had heard the claimant speaking to somebody on the telephone, in an open plan office, criticising Mr Hodgkin.[76]Mr South completed a written report into his investigation on 20 July 2023. The report contained a “Summary of incidents” in the form of a table which, as well as setting out the 5 July incident, set out a further seven instances (including the one Ms Wyatt told Mr South about) where the claimant was alleged to have behaved inappropriately over the previous 12 months, by doing things such as saying things in a hostile manner, being unnecessarily confrontational etc. That information plainly came from the interviews we refer to above. We will refer to those further seven instances collectively as “the other incidents”.[77]After the table, there was a section headed “Findings and Recommendations”. As to the 5 July incident, Mr South appeared to accept Mr Hodgkin’s account, noting that CCTV footage corroborated him in the sense that it showed that he was close enough to have heard what he said he heard, and noting also that the claimant had not denied saying what he had was accused of saying. He noted that the claimant had spoken loudly using swear words close to the respondent’s offices and could have been overheard by various people, with the potential therefore to negatively affect the respondent’s reputation. Mr South appears to have accepted also that the other incidents happened as the witnesses have described them to him; he said the following: There have been a number of other incidents highlighted in which [the claimant's] behaviour fell short of the professional standard ABP expects from its employees. [The claimant] is a senior member of staff and his conduct is expected to be professional at all times.[78]Given the nature of the alleged incident and evidence he had gathered, Mr South said, he considered that the claimant should attend a disciplinary hearing for two matters of gross misconduct: 1. Serious unacceptable behaviour, attitude or language towards a colleague. 2. An act detrimental to the Company's reputation that does or has the potential to bring the Company into disrepute.[79]It is not clear on the face of it whether “charge” 1 is intended to relate only to the events of 5 July of whether it is also intended to include the other incidents. Either way, with regard to the other incidents, if Mr South did make factual findings about them, he did so without giving the clamant to opportunity to comment on them, which we consider to be regrettable, particularly in the circumstances where the claimant was left under the impression that he would be spoken to again before a report was prepared – the first the clamant would have been aware that the investigation’s ambit had been widened to include them would have been when he received a copy of Mr South’s report. That said, we do not consider that it was unreasonable for the ambit to have been so widened, given what Mr South was told during the course of his investigation, and it is also significant that the claimant had the opportunity to comment at length on the other incidents during the course of the disciplinary process which followed. CCTV[80]As part of his investigation, Mr South considered CCTV footage covering the street outside the entrance to the respondent’s building on 5 July. There is no dispute that the CCTV showed the claimant and Mr Landi outside the building from 5.34 p.m. It is clear that members of the public were walking past. The footage did not record sound.[81]One of the complaints in this case related to the circumstances of the respondent obtaining the CCTV footage. As Issue 4.2.2 has it, the claimant says he was “portrayed by the Respondent to the building management company as a potential threat to employees and users of the building on 5 July 2023 when Daniel Landi was not”. (As we have already noted, the respondent was one of a number of businesses which occupied the building. The building was managed by firm called Workman.) The claimant based that assertion on a series of emails as follows:a.10 July 2026, 4.33 p.m. – the respondent’s office manager Ms Deacon emailed “Anna” (not an employee of the respondent): “Please could I request a copy of the CCTV outside for the 5 July from 17:45 - 18:15”.b. 11 July, 9.39 a.m. – Workman’s Senior Building Manager, Mr Mills asked Ms Deacon why she needed the footage and asked Anna whether she had “all the relevant paperwork that needs to be completed”. (We were not provided with any of that paperwork, if it existed.)c. 11 July, 9.50 a.m. – Ms Deacon replied: “I don’t have a lot of information, however I understand there was an incident with a couple of our staff on that day, we were hoping for some audio as well, but I gather that the CCTV is only visual.”d. 11 July, 9.51 a.m. – Mr Mills said that there was no audio and asked Anna to get it “sorted”.e. Some months later, on 26 November – The claimant emailed Workman to complain that providing the CCTV footage to the respondent had been a breach of his “GDPR rights”. This followed the claimant’s enquiries to the respondent about who operated the CCTV.f.18 January 2024 – Workman replied to the claimant. So far as is relevant, it said: “Having reviewed the position, the CCTV footage was released by the Security Team at the request of Associated British Ports (ABP). This was because of a reported altercation in and around the front entrance to the building Involving ABP employees. At the time, Building Management was told that a potential threat existed to other ABP employees and other users of the building. Given the circumstances of the incident as reported, it was considered appropriate to release the footage to ABP to enable them to pursue their investigations, since ABP employees were reportedly involved.”g. [We were also shown some emails from 2024 which clearly related to the respondent’s attempts to find the relevant emails from 2023.][82]There is no evidence that the claimant, or anyone else, was identified to Workman, let alone portrayed as a threat or compared to Mr Landi. In its retrospective justification for releasing the footage to the respondent, Workman referred to a reported “altercation” and a “potential threat” to users of the building, but without evidence to support it we attach little weight to that assertion. On the best available contemporaneous evidence, it appears that Workman was asked for the footage and provided it, having been told simply that there was “an incident” involving unspecified members of staff. How it changed from an “incident” to an “altercation” over the space of seven months can only be a matter of speculation. We simply do not know what (if anything) the “paperwork” said about the reasons for the request. We consider that, given the paucity of the evidence, the claimant has not shown on the balance of probabilities that the respondent portrayed him as a threat to Workman.[83]Note that it does appear that the claimant was aware of all of this by the time he resigned, having obtained the emails by way of subject access requests, with the notable exception of the 18 January email, which the claimant agreed in cross-examination, initially at least, was the basis of his complaint. The disciplinary meeting – 27 July 2023[84]On 20 July 2023 Mr Atwal wrote to the claimant to request/require his attendance at a disciplinary meeting, to consider the following allegations, which, we note, had been refined so as to make clear that they related only to the events of 5 July (and essentially both to the same conduct): 1. That on Wednesday 5 July 2023 at approximately 17:45 you made inappropriate and derogatory comments about your line manager and other ABP colleagues in a public and open space – Serious unacceptable behaviour, attitude or language towards a colleague - Gross Misconduct. 2. That on Wednesday 5 July 2023 at approximately 17:45 you made inappropriate and derogatory comments about your line manager and other ABP colleagues in public and an open space whilst wearing your ABP company lanyard - An act detrimental to the Company's reputation that does or has the potential to bring the Company into disrepute - Gross Misconduct.[85]We were provided with formal notes of the meeting along with contemporaneous corrections which the claimant had made to those notes. At the start of the meeting the claimant raised a number of points about the fairness of the process so far, including his suspension. When asked about the 5 July incident he said he did not recall it but was not shouting or having a heated discussion. He asked why, if Mr Hodgkin had heard something significant then he had not come over to speak to the claimant there and then. When questioned further the claimant continued to assert that he could not remember the conversation. The meeting earlier on 5 July, and what we have called the other incidents, were also discussed. The claimant did not deny that he had had disagreements with other colleagues, but was clear, in giving a detailed response in relation to each of the other incidents, that he had never behaved unprofessionally. He explained that he had been under considerable pressure around 5 July. He read out an extract from a conversation he had had on WhatsApp with Mr Pang in which Mr Pang referred to a colleague in somewhat earthy terms. (The screenshot we were shown was undated and contained only 6 messages in what was clearly a longer, and private, conversation. As such it did not assist us in determining any of the Issues.) Disciplinary outcome – 28 July 2023[86]Mr Atwal wrote to the claimant on 28 July with the outcome of the hearing. He reiterated the two allegations, then summarised what had been said at the disciplinary meeting. In relation to the other incidents, Mr Atwal said this: We did speak about some other incidents which were outlined in the report and although not linked to the allegation, nor have I considered them as part of the decision making process they are important to allow me to understand whether there is a pattern of behaviour which is not appropriate.[87]It may be that this somewhat confusing phrasing was intended to convey that the other incidents were not taken into account when considering whether the claimant had committed gross misconduct but were taken into account when deciding what the appropriate outcome/penalty should be upon a finding of misconduct. But two things are clear: Mr Atwal considered that the other incidents reflected badly on the claimant, and he took that into account as part of his overall decision-making, contrary to his recollection in his oral evidence. Although the other incidents were not specifically referred to in the “charges”, by now the claimant had had the chance to address those incidents and so we do not consider that it was unfair of Mr Atwell to take them into account.[88]After further summarising the claimant’s account of the events of 5 July, Mr Atwal upheld both allegations of gross misconduct. In summary, he said: “I believe a heated and inappropriate conversation took place outside the Bedford Street office about your line manager.” Although summary dismissal was available as an outcome, Mr Atwal considered that the appropriate outcome was a final written warning, recognising that the claimant worked in a stressful situation which the claimant said he had raised with his line manager prior to the incident, and that the claimant had been working long hours on a challenging project for a prolonged period of time. Action against Mr Landi[89]Mr Landi was not subjected to disciplinary proceedings, but he was written to by Mr Hodgkin and given what amounted to an informal warning. Given Mr Landi’s limited role in the 5 July conversation, and junior position in comparison to the claimant, there is in our judgment no basis upon which to conclude that the different treatment accorded to the claimant was without reasonable and proper cause. The incident on 5 July 2023: (2) Findings[90]We consider that the respondent had conducted a proportionate investigation before issuing the claimant with the final written warning, having spoken to all the material witnesses. While the investigation into the other incidents was not so thorough, we do consider that that was proportionate given that the focus of the enquiry was on the events of 5 July. We reject any suggestion made on behalf of the claimant that the ultimate conclusions were against the weight of the evidence – on the contrary, Mr Hodgkin had given a clear and detailed account, in contrast to the accounts offered by the claimant and Mr Landi, which were little more than bare denials, to the extent that they even amounted to denials.[91]As to our own view of the events of 5 July, where there was a conflict between the accounts of the claimant and Mr Hodgkin, we preferred the evidence of Mr Hodgkin. In his witness statement the claimant said that he recalled having a conversation with Mr Landi, but did not recall raising his voice or swearing. He did not recall the conversation, or anything out of the ordinary that day. Essentially, the claimant suggested in his oral evidence, he did not remember the conversation – which he was only first asked to recall a week later – because nothing out of the ordinary had been said. However, it was not put to Mr Hodgkin on the claimant’s behalf that he had misremembered or exaggerated the conversation (or worse). Mr Hodgkin gave a clear and consistent account of the events, which we considered to be credible and accurate.[92]We also consider that it was not unreasonable for the respondent to conclude that this was more serious than a case of the claimant simply blowing off steam, and that it did indeed amount to gross misconduct. We would go further, and accept that the claimant’s conduct did in fact amount to gross misconduct in all the circumstances, even taking into account our view that other employers might reasonably have taken a less formal approach. We further find that, having come to that conclusion, the imposition of a final written warning was a reasonable and proper course of action – the final written warning was not imposed without good cause, even if the respondent’s view about whether the incident might have been overheard by interested members of the public, thereby bringing the respondent into disrepute, was in our view somewhat overblown. Whether in public or not, the claimant was loudly undermining his manager to a junior colleague in circumstances where other colleagues may have heard, having been asked not to do that only hours before. That applies in our view even without taking into account the other incidents, about which we make no findings, having been presented with little direct evidence about them. "Other dismissals" letter – 28 July[93]The letter outlining the outcome of the disciplinary hearing was emailed to the claimant at 9.23 a.m. on 28 July by Ms Dawe, accompanied by a request for the claimant to meet Ms Dawe and Mr Atwal that day (remotely) to discuss the “next steps”. Ms Dawe emailed the claimant again at 2.31 p.m. to say that she had not been able to contact him on his phone and repeated her request to have a conversation that day.[94]We note that at this point the claimant was on suspension and so was required to make himself available for meetings, but even so, we consider that it would have been reasonable for the respondent to have allowed the claimant at least 24 hours to take stock of the findings, particularly as he was only sent the notes of the disciplinary meeting the same day. What the respondent did instead was send another letter to the claimant, at 3.58 p.m. the same day. We refer to this second letter as the “other dismissals” letter, since it was headed “Meeting to be held under the ABP Other Dismissals Policy” (i.e the policy we deal with above at para 29). It was signed by Ms Dawe, but in his oral evidence Mr Atwal accepted that he had read it before it went out. In the letter, Ms Dawe explained that she had tried unsuccessfully to contact the claimant that day to discuss the next steps after the disciplinary hearing. She then wrote: Consequently, I am writing to advise you that ABP is considering terminating your employment for the reasons outlined below. As you know Mani chaired a Disciplinary Hearing on 27th July 2023 into concerns around your conduct, and whilst he concluded that a Final Written Warning was the appropriate sanction in relation to the two allegations, it was also apparent that the relationship and trust between you and your line manager, and the organisation has broken down beyond repair. You have the opportunity to respond to these points and are therefore invited to attend a meeting as follows […][95]The letter concluded by telling the claimant that he had the right to be accompanied at the meeting and that he should not discuss the matter with colleagues etc. Note that the assertion that the relationship with Mr Hodkgin had broken down beyond repair was directly contradicted by Mr Hodgkin himself in his oral evidence to us, as we set out above. Nor was such a conclusion supported by what the claimant told Mr Atwal in the disciplinary interview – the claimant had merely said, when asked whether he had a good relationship with Mr Hodgkin and the team, that he didn’t feel he had one now.[96]Mr Atwal’s evidence was that during the disciplinary meeting the claimant had said that he no longer had a good relationship with Mr Hodgkin and his team was very critical of certain of them. In view of that, after he reached his decision, Mr Atwal said that he had suggested to Ms Dawe that they should have a conversation with the claimant about whether he wanted to come back to work or would prefer to negotiate a “mutual termination of employment”. Ms Dawe’s evidence was that she wished to have a “protected conversation” to discuss “alternative options” with the claimant including raising with him whether he wished to agree a “mutual termination” of his employment. She said that it was not her intention to dismiss the claimant at this point. What neither Mr Atwal nor Mr Dawe were able to explain in their oral or written evidence was why, if the respondent had intended to discuss a mutually agreed termination (and so engage the provisions related to protected conversations), they had sent the claimant a letter saying the opposite – that the respondent was considering dismissing the claimant (i.e. without the claimant’s agreement). The “other dismissals” policy, to which the letter refers makes no mention whatsoever of protected conversations.[97]We do not accept the claimant’s suggestion that the other dismissals policy only applied to employees in a probationary period or at the end of a fixed term contract – the policy says that it applies to those situations, but does not say that it applies only to those situations. It says it applies to all employees and explicitly says that it applies in any situation where other policies do not apply, and there was no suggestion that those policies did apply in the circumstances. Therefore the policy technically did apply, if the respondent was considering dismissing the claimant in the circumstances. But we consider that if the respondent wanted to have a protected conversation, it would not have written to the claimant in the clear terms which it did. (Note also that neither party suggested that s 111A Employment Rights Act 1996 “ERA” applied here, presumably since, even on the respondent’s case, we were considering an attempt to have a protected conversation rather than the conversation itself.)[98]We consider it a reasonable conclusion in the circumstances that Mr Atwal and Ms Dawe had decided it would be best if the claimant left the business. They were considering, as the letter clearly said, dismissing the claimant. Although it was couched in terms of a breakdown in relations, the reasons given were in effect based entirely on the things – the other incidents and the claimant’s conduct towards Mr Hodgkin – that the disciplinary process had been based on. We would further observe that if – as might have been entirely reasonable – the respondent had decided to conduct informal mediation between the claimant and his colleagues or to take some other steps to repair the relationship, it could have done so without a written threat of dismissal hanging over the claimant. 30 & 31 July – Grievance #1[99]On 31 July 2023 the claimant lodged a formal written grievance with the respondent (the document is dated 30 July but was emailed just after midnight). His complaints included: being suspended by Mr South; being treated differently to Mr Landi because of his race; not been protected from stress at work; that the other dismissals policy did not apply to him. He indicated that he intended to appeal against the disciplinary sanction and requested an extension of time in which to do so. He also requested a “stay” of the “other dismissals” meeting which was to take place on 1 August.[100]Ms Dawe emailed the claimant in reply on 31 July. We reproduce one significant passage here (and another below): It would appear from your email and grievance that you believe the trust and confidence has broken down between both parties, and we want to work with you to try and reach a mutually agreeable solution about your future at ABP and how we now move forward. With that in mind, I suggest that we meet tomorrow, either via TEAMS or face to face if you would prefer, at 12 noon so we can enter into a Without Prejudice conversation with you.[101]Again, we note that neither party asserted that s 111A ERA applied to this correspondence. We further note that while the paragraph above now explicitly mentions a without prejudice conversation, the unambiguous threat of dismissal made days earlier is not explicitly withdrawn. Although Ms Dawe asserted in her evidence that she realised that there had been a misunderstanding and she immediately clarified the position in the 31 July email, we do not accept that. The email did not say, as it easily could have done, that the other dismissals letter had been sent in error, nor did it seek to withdraw it. Sickness absence – 31 July 2023[102]Also on 31 July, the claimant notified the respondent that he would be absent from work. He initially “self-certified” in accordance with the respondent’s procedure, but then provided a GP’s note certifying that he was unfit to attend work on account of work-related stress. The initial note covered the period to 13 August, but the claimant was in fact to be absent for the remainder of his employment. Over that period he continued to provide fit notes as required. For example, a note dated 6 October 2023 said that he was not fit for work because of anxiety, insomnia and stress at work. No suggestion was made during these proceedings that the claimant was not genuinely too unwell to attend work.[103]Ms Dawe emailed the claimant on 1 August 2023, confirming she had received the GP’s note. She said: I understand that this situation is difficult for you and we want to work with you to explore a mutually agreeable resolution as soon as possible. I also recognise that while this situation remains unresolved, it will continue to impact you. Therefore, whilst you may not feel well enough to attend work at the moment, I am of course happy to arrange a meeting to discuss how we move forward as soon as you feel well enough to do so.[104]That was followed by a detailed “signposting” to the mental health, employee assistance and private medical provision available to the respondent’s employees. Ms Dawe also said that she would be happy to arrange an appointment with the respondent’s occupational health providers if the claimant wanted that. Withholding sick pay[105]On 3 August 2023 Ms Dawe wrote to the claimant about his submission of the GP’s note: As per the attached Attendance Management Policy we reserve the right to withhold company sick pay should anyone go of sick during an ongoing disciplinary process. As this is the case with you I am writing to confirm that for your current period of absence you will not be entitled to company sick pay and will be pa[id] Statutory Sick Pay only.[106]We were shown emails leading up to this. On 2 August Ms Cavallo had emailed Ms Dawe to say: Discussing this with Becki [Ms Atkin, Head of Employee Relations and Policy] - as the disciplinary process is still not concluded then we should invoke the attendance management policy and pay [the claimant] at SSP [statutory sick pay] level. Ms Dawe asked whether anything had been communicated to the claimant about his sickness absence or sick pay. Ms Dawe replied: I haven't had that conversation to be honest. I do wonder whether we highlight this policy to him and advise that we will withdraw it if he doesn't return after 2 weeks, rather than straight away. Conscious this is already a challenging situation so we need to ensure we handle it carefully. Also removed surname from email chain as conscious he is likely to put in an SAR. In an email sent less than two hours before the Ms Dawe’s 3 August email to the claimant, Ms Atkin responded: We have applied this provision to others in similar circumstances. If we do it, we should apply it from day one of absence - I don't see how we can justify the difference of applying it 2 weeks down the line. It may help to incentivise him to deal with the matter sooner rather than later. It is a contentious situation but we can always later reconsider the decision if challenged, or as the outcome of the appeal / grievance process. Additionally, we always keep this up our sleeve as part of any subsequent negotiation on settlement.[107]It will be recalled that the respondent’s policy provided for company sick pay to be withheld by the regional Head of HR, with the agreement of the appropriate Senior Manager, “If the employee goes off sick during a disciplinary or capability process”. The appropriate Senior Manager here was Ms Wyatt, and we heard from her about the decision. Although she understood HR to be saying that similar actions had been taken in the past, she did not ask about the circumstances of those previous cases, and in particular whether any of those cases actually concerned a case where there was an appeal rather than an ongoing “first-instance” disciplinary process. In the circumstances we accept the claimant’s characterisation here that Ms Wyatt’s action amounted to little more than a “rubber stamping” of the decision made by the head of HR. Although Ms Wyatt denied that the withholding was being used as negotiating tool, that was contradicted by the email evidence (though we accept that she did not see the HR emails above at the time). Ms Wyatt’s assertion to us that withholding sick pay was part of the disciplinary process that the claimant “needed to go though” overlooks the fact that withholding the sick pay could only ever be discretionary rather than mandatory. Further, her evidence that she thought it was the right course of action because of how the claimant had behaved in undermining Mr Hodgkin on 5 July seemed to us to misunderstand entirely the purpose of withholding sick pay, which is plainly not intended to be used as a disciplinary measure.[108]As to the decision made by HR, we conclude the following:a. By now, the disciplinary process against the claimant had ended – he had been told the result on 28 July. Although in invoking the policy the respondent sought to rely on there being a live disciplinary process on account of the claimant’s appeal, that cannot be right even on its own terms – all the claimant had so far done was indicate an intention to appeal and asked for an extension of time in which to do that.b. More broadly, the respondent’s policies did not make clear whether an appeal was to be considered part of the disciplinary process for these purposes. Given the serious consequences for an employee, we consider that if it had been so intended, the policy would have said so. It is plain that the purpose of the provision we are concerned with is to stop abuse of the sick pay scheme, in circumstances where an employee is seeking to frustrate the disciplinary process by not participating. (The policy includes an number of other circumstances in which sick pay can be withheld, which we have not reproduced above, all of which relate to potential abuses of the scheme.) But the worst the claimant could have done by not participating at this stage was damage his own chances of a successful appeal. In the circumstances, we consider that the correct interpretation of the respondent’s policy is that the disciplinary process for these purposes did not include an appeal (or a contemplated appeal).c. The evidence from the respondent’s witnesses amounted to vague assertions that sick pay had been withheld in other similar circumstances. There was no assertion to the effect that there had ever been a case where sick pay had been withheld after an appeal had been presented (or, more accurately, contemplated).d. The practical effect of the respondent’s decision was to withhold the claimant’s pay because he had appealed against the disciplinary sanction. This in our judgment was liable to have a significant effect on the fairness of that process – if an employee is at risk of losing their pay by appealing, that is in our view an inappropriate fetter on their right to appeal, which under the relevant ACAS code is part of a fair process.e. The respondent’s policy provided that “where possible” in these circumstances a meeting or telephone conversation should take place with the employee (i.e. before pay is withheld). Nobody in this case sought to do that. Although the claimant was off sick, there is no suggestion that he would have been incapable of taking part in a telephone conversation, and he was of course actively corresponding with the respondent. The respondent could have complied with the spirit of the policy by seeking the claimant’s comments by email before the decision was made.f. Ms Dawe made a clear attempt to hide aspects of the decision-making from future scrutiny by way of a subject access request. Fortunately that effort was defeated by the Tribunal’s disclosure process.g. Although we are conscious we did not hear evidence from Ms Atkin, it is impossible to reach any conclusion other than that the respondent withheld the claimant’s sick pay, at least in part, intending that it could be used as “leverage” to persuade the claimant to enter into a settlement. We consider that in the circumstances that was improper.[109]Even taking account of the point that the withholding of the pay coincided not just with the claimant indicating an intention to appeal, but also with the claimant in fact going off sick, considering all of the above we all conclude that the decision to withhold the claimant’s sick pay was made in bad faith. While the claimant of course did not see the emails above at the time, he would still have had good cause to suspect, given the timings, that his sick pay was being withheld for improper reasons. “Lifting” of suspension[110]There was a dispute between the parties about whether the claimant’s suspension was in fact lifted around this time. The other significant passage from Ms Dawe’s 31 July email is relevant to that issue: In your attached letter dated 30 July 2023 […] you raise concerns about still being suspended, and your suspension having been in place since 12th July 2023. This was one of the next steps that Mani and I wanted to discuss with you on Friday, as we intended to inform you that your suspension was now lifted [our emphasis]. However, as you know I was unable to contact you.[111]On 4 August 2023 Ms Dawe replied to the claimant’s emailed complaint about his sick pay being withheld (in which he said that he did not consent to the deduction from his wages and asserted that since he was suspended he was entitled to full pay). Ms Dawe said: As indicated in my email below, as per the ABP Attendance Management policy Company sick pay is only paid to employees where eligible, and we are able to withhold it when an employee is absent whilst there is an on-going disciplinary process. Whilst it is correct that you were suspended as a precautionary measure during the initial stages of the investigation and disciplinary process, we wanted to discuss this suspension with you last Friday but we unable to contact you despite several attempts to do so. On Tuesday this week I informed you that your suspension had been lifted - this was clearly laid out in my email on Monday 31st July 2023 [our emphasis] and your fit note was subsequently received.[112]Tuesday of that week would have been 1 Aug and although Ms Dawe did email the claimant on that date, the email did not mention suspension. None of the witnesses suggested that Ms Dawe and the claimant had spoken on Tuesday, so we conclude that Ms Dawe’s reference to telling the claimant on Tuesday was an error.[113]On 11 August 2023 Ms Dawe wrote the to the claimant again [405]: As you know your statement of fitness (sick note) expires on Sunday 13th August 2023, which means you are due to return to work on Monday 14th August 2023. Prior to your absence I was trying to arrange a meeting with you to discuss the next steps following your disciplinary hearing. This meeting still needs to take place prior to any return taking place. With that in mind, Mani and I would like to meet with you at 9:30 am on Wednesday 16th August 2023 in Bedford Street. As indicated previously, the purpose of this meeting is to try and identify a mutually agreeable resolution to the concerns you have raised and discuss your on-going employment with ABP. Please confirm your attendance to this meeting no later than Monday 14th August 2023. You will not be required to attend work prior to this meeting taking place. If you would prefer to attend this meeting via Teams, or in an alternative location, please do let me know.[114]As we have noted, the claimant was in fact to provide a further note saying he was not fit for work, so there was no meeting on 14 August. The letter is relevant to the issue of suspension, in that the claimant was being told(i) he was not required to attend work before 14 August(ii) but was being required to attend work for a meeting on that day.[115]The following other points are of note:a. During the period of his suspension, the claimant had no access to his laptop, his work phone, or the respondent’s IT facilities (which was, amongst other things, the only way he could access his payslips unless they were sent directly to him).b. The terms of the claimant’s suspension prohibited him from entering the respondent’s building and from speaking to colleagues, and he did not do either of those things.c. Notwithstanding the offer we refer to above, there was in fact no referral to OH after the claimant went off sick. The respondent did not initiate its long-term absence procedure, and beyond the signposting we refer to above, there were no measures taken to help the claimant back to work.d. As we have already observed, there was no formal revocation of the “other dismissals” letter.[116]The Tribunal’s decision on whether the claimant’s suspension was lifted is made by majority. EJ Dick and Mrs Brosnan are of the view that the claimant’s suspension was lifted on 31 July when the claimant was informed, in clear terms, that his suspension was lifted. The claimant’s position on this – that all Ms Dawe indicated on 31 July was that the respondent was intending to lift the suspension – is wrong even on its own pedantic terms. The correct literal interpretation of what Ms Dawe wrote was not that the respondent was intending to lift the claimant’s suspension – i.e. it had not yet lifted the suspension – but that it was intending to tell the claimant it had lifted the suspension – i.e. it was the telling, not the lifting, that had not yet happened. The claimant can have been left in no doubt by that 31 July email. And even if the claimant had been in any doubt, that doubt would have been dispelled by the 4 August correspondence, which again made clear that the suspension had been lifted. The claimant’s assertion that he genuinely believed his suspension had not been lifted for months afterwards in our view lacked any credibility. The claimant’s wilful misinterpretation of the emails was indicative of an unnecessarily confrontational approach, in which the claimant sought to take every conceivable point, whether arguable or not, which was demonstrated at many other parts of the disciplinary/grievance/appeals processes. Further, on 11 August, the respondent was requiring the claimant to return to work, which was inconsistent with him being suspended, albeit that the requirement appeared to be conditional upon him attending the meeting. What would have happened if the claimant had said that he was fit to attend work but declined to attend the meeting can only be a matter of speculation since the claimant never was in fact fit to attend work. But the suspension had been lifted and the claimant was not otherwise “excluded from work” within the meaning of clause 5 of the terms and conditions of employment – he was not required to work before attending the meeting, but he was not prohibited from doing so.[117]Mrs Boot took the contrary view – whatever the respondent was saying, the claimant’s suspension was not as a matter of fact lifted. The reality was that the claimant continued to be denied contact with his colleagues, access to IT and to the respondent’s building (unless he agreed to attend the meeting). Since the absence procedure was not used and measures were not taken to help the claimant back to work, his absence continued to have the characteristics of a suspension. Further, the claimant was essentially being told he could not return to work unless he took part in a without prejudice meeting. Nor had the claimant received a welfare visit (as required under the respondent’s attendance management policy after one month of sickness absence).[118]EJ Dick and Mrs Brosnan took account of the point that the claimant did not have his laptop and IT access, but considered that the reality was that nobody had thought to return those since the claimant was off sick – had the claimant asked for them back the point might well have been considered. Further, it was implicit in the lifting of the suspension that there was no longer a prohibition on contact with colleagues etc, since those were terms of the suspension. The claimant’s pay after 3 August 2023[119]As a consequence of the respondent’s decision to withhold sick pay, the claimant was paid only statutory sick pay from 3 August 2023. Until then, the parties agree, he had been paid his full pay (the respondent’s policy providing for full pay while on suspension).[120]On the majority’s findings, after 3 August the claimant was no longer suspended but he was off sick. The respondent was not entitled, as the Tribunal have found unanimously, to withhold that sick pay. Under the terms of the contract, therefore, the claimant should have been paid sick pay at the full rate for 16 weeks from 31 July, and at the half rate thereafter (the half rate would have continued for a further 16 weeks but for the claimant’s resignation).[121]On the minority’s findings, the claimant was suspended before he went off sick, and that suspension was never lifted. Since the claimant had a contractual entitlement to full pay while suspended, the claimant should have had full pay until the day he resigned. Appeal against the disciplinary outcome[122]On 11 August 2023 the claimant lodged a written appeal against the outcome of the disciplinary process. The document outlined complaints under the following heads:a. The procedure was unfair, consisting of three sub-heads: predetermined outcome, widening the scope to include the other incidents, Mr Pang being the “aggressor”.b. The evidence was insufficient to support the conclusions.c. Mr Hodgkin had an ulterior motive relating to the claimant’s concerns about work been taken from him.d. The claimant had not been treated the same as Mr Landi, Mr A or Mr Pang.e. The respondent had not provided the claimant with coaching to help him deal with stressful situations.f. The claimant’s ability to defend himself was prejudiced as he had no access to emails and was forbidden from speaking to others.[123]We say more about the result of the appeal below, but for now we record that none of these grounds were properly made out, largely for the reasons we have already set out (with the exception of point e, which was not argued before us). As to point f, so far as we are aware the claimant did not ever ask the respondent for access to emails, and even if he had they could only have assisted on the peripheral issue of the other incidents. Grievance #2 – 13 August 2023[124]The claimant lodged a second written grievance on 13 August 2023. It dealt with the following:a. Suspension from work.b. Race discrimination.c. A complaint about Ms Wyatt in March 2023 looking for a reason to aggressively pursue the claimant for wrongdoing (this complaint was not pursued before us, and was clearly not a complaint that what the claimant had done in March 2023 amounted to whistleblowing).d. Failure to protect the claimant from stress at work.e. Whistleblowing – relating to the July 2022 incident.f. The respondent’s use of the other dismissals policy, as to which the claimant said: Receipt of this second invitation to a meeting in order to dismiss me, albeit under a different/new policy, has caused me considerable stress and I am moving toward the conclusion that this is an orchestrated plan to dismiss me. Communications marked “without prejudice”; Gossip (1); Payslips[125]On 28 August 2023, the claimant emailed Ms Dawe. He asked about the status of his appeal and grievance, requested that copies of his payslip for August be sent to him and complained that he had learned on 25 August that external consultants (from two named companies) working for the respondent had been told by an (unnamed) employee of the respondent that he was currently not at work due to being suspended for bullying James Pang and complaining about the impact of this gossip upon his professional reputation.[126]On 30 August Ms Dawe replied by way of an email headed “strictly confidential without prejudice”. She noted that the claimant had engaged a solicitor with whom the respondent was at present liaising and said that the respondent was not looking to address the appeal or grievance until it understood whether “the conversation with your solicitor has reached an agreement”. With that in mind, she asked that all correspondence be made through the claimant’s solicitor. She said she would ask payroll to send his payslip to his personal email address and said that she would investigate his concerns (i.e. about the gossip). She also said: “As you know from my previous correspondence, you are not, nor have you been suspended since 28 July 2023.”[127]It was not suggested to us that Ms Dawe’s correspondence as a matter of law did fall within the “without prejudice” rule; it is settled law that merely labelling correspondence without prejudice does not make it so. However, we see no reason to conclude anything other than that this was a simple error on Ms Dawe’s part; unlike the correspondence we deal with above, there was clearly no intent to keep the correspondence from the claimant. The claimant suffered no detriment whatsoever from the error.[128]The claimant’s case to us was that since he did not explicitly consent to Ms Dawe’s suggestion that the appeal or grievance being delayed, he therefore had cause for complaint about the delay. We do not accept that. Although the claimant did say in an email of 30 August that he did not agree to a pause, the total time between the claimant raising his first grievance and then receiving an outcome to his grievances and his appeal against the grievances was approximately 2 ½ months. Given the complexity of the case and the multiple grievances, we all consider that the claimant has no reasonable cause for complaint about that.[129]The claimant was emailed his August payslip on 1 September 2023. Grievance #3 etc. – 5 September[130]On 5 September 2023 the claimant lodged another grievance, relating to deductions from wages, following his receipt of the August payslip. He asserted that since he was suspended he should be on full pay, continued to deny that his suspension had been lifted and said that Ms Dawe’s email of 11 August showed that he was not being permitted to return to work.[131]On 6 September 2023 Ms Cavallo wrote to the claimant to say that a meeting would be arranged to hear his grievance. She proposed that the claimant’s appeal and grievance be heard together as they were overlapping matters. She noted that the claimant was on sickness absence and so asked the claimant to notify her when he felt able to attend a meeting. She offered an alternative option of dealing with the grievance and appeal by written correspondence.[132]On 7 September 2023 the respondent’s Ms Atkin emailed the claimant’s solicitors. Amongst other things, she asserted that the claimant was no longer under precautionary suspension, that having been communicated to him by email on 1 August 2023 (we assume she meant to say 31 July or 4 August), whilst conceding that the email was not as explicit as it could have been. She also said that the respondent would deal with the claimant’s concerns about alleged defamatory allegations (i.e. what the claimant initially referred to as gossip) by way of the grievance investigation. She said that the respondent would continue to communicate with the claimant directly regarding all other matters in open correspondence. We do note that Ms Atkin asserted in this correspondence that there was no ongoing process in which the claimant’s dismissal was being considered. But, as the claimant rightly points out, the respondent never sought to withdraw the “other dismissals” letter.[133]On 11 September 2023 the claimant wrote to Ms Cavallo to say that he wished to have the grievance dealt with separately to the appeal and that he would like both dealt with in writing because he was still unwell. He attached a new fit note.[134]In an email of 13 September 2023 Ms Cavallo agreed to the claimant’s request to treat the appeal and grievance separately and told him that Mr Ian Henderson would chair his appeal via correspondence; she would soon provide the claimant with details of who was to deal with his grievance.[135]On 22 September 2023 Ms Cavallo informed the claimant:(i) that his grievance would be heard by Mr Davies and(ii) that following receipt of his most recent sickness certificate, an interim contractor had been engaged to cover his work. Given the length of time the claimant had now been off sick, and given also that it was made clear that the contractor was appointed on an interim basis, rather than as a replacement for the claimant, we accept that it was reasonable for the respondent not to have consulted the claimant about this. Disciplinary Appeal[136]Mr Henderson interviewed Mr South in connection with the disciplinary appeal on 22 September 2023, then Ms Cavallo on 29 September 2023, and Mr Hodgkin and Mr Atwal (separately) on 9 October 2023.[137]The claimant was emailed his September payslip on 4 October 2023.[138]The written outcome of the disciplinary appeal was sent to the claimant on 9 October 2023. The appeal was not upheld. Mr Henderson gave reasons for his decision which included a paragraph dealing with each of the claimant’s six points we have listed above. Regarding the sixth point, Mr Henderson noted that the claimant did not appear to have asked for access to any documents and was confident that had he done so he would have been provided with them. Given the findings we have set out above, in our judgment Mr Henderson’s decision not to uphold the appeal was not made without good cause. Gossip (2)[139]On 15 October 2023 the claimant emailed Ms Cavallo noting that he awaited a response to his grievances. So far as the “defamatory allegations” were concerned, he said that he was unaware which member of the respondent’s staff had passed the information to the consultants; he suspected that it was somebody involved in the investigation and suggested that could be confirmed by simply asking a Mr Williams at one of the consultants. The claimant later clarified on 17 October 2023 that he was not given the information directly by Mr Williams but was told by a third party who did not work for either of the contractors or the respondent that Mr Williams “was the person to inform” one of the contractors. The respondent did not investigate the claimant’s allegations any further (i.e. beyond getting that further information from the claimant). Whilst doing so might have helped improve the relationship with the claimant, we accept on balance that given the vagueness of the allegations the respondent was entitled to conclude that any further investigation into them would have been disproportionate. Sick pay restored 10 October[140]On 16 October 2023 Ms Cavallo wrote to the claimant to say that as the disciplinary process had ended on 9 October (i.e. with the appeal outcome) he would be paid company sick pay from that date. As we understand it, after what must have been 20 November 2023 (i.e. 16 weeks after the claimant went off sick) the respondent only paid the claimant at half pay since he had been off sick (albeit not receiving sick pay) for over 16 weeks. While that may have been in accordance with the letter of the policy, there is at the least some doubt in our view whether it was within the spirit. But that is not a point we have to resolve, given our earlier findings that the respondent should have been paying the claimant full pay since the time he went off sick. Grievance outcome 19 October[141]On 19 October 2023 Mr Davies, who had considered the claimant’s grievances on the papers, provided a written outcome to the claimant. Mr Davies identified the following main points to the grievances as follows:a. Suspension processb. Outcome of Disciplinaryc. Direct Discrimination - Raced. Pay (suspension and company sick pay)e. Health and Safety / Duty of caref. Whistleblowingg. Defamatory allegations in breach of confidentiality[142]Mr Davies declined to deal with points (a) and (b) as the respondent’s grievance procedure did not permit the grievance procedure to be used to complain about disciplinary action and he considered suspension to fall within that. (We note that the claimant did raise his suspension as part of the disciplinary appeal, in the sense that he asserted that it showed that he was being treated differently than other colleagues. Mr Henderson did deal with the point, asserting amongst other things that the decision to suspend was in line with policy and was not unreasonably harsh.) For the other points, Mr Davies provided detailed reasons as to why he was not upholding the grievance. His view was that the suspension was lifted on 28 July 2023 and so, he concluded, the respondent was entitled to withhold sick pay as the lifting of the suspension did not affect the disciplinary process, which he did not consider had been concluded until 9 October 2023. As to point (g), i.e. the gossip, Mr Davies considered that the claimant had not provided sufficient information to allow an investigation to take place, i.e. the claimant had not provided details of which employee of the respondent was said to have made the comments that he complained about. (Note that on the majority view there would have been nothing to stop the claimant making his own enquiries about this once the suspension had been lifted in July, since the claimant would have been allowed to contact colleagues etc.)[143]On the basis of our findings so far, we broadly agree with Mr Davies’ findings (or, in the case of point (e), we were not required to make findings on the point). Whilst, being in possession of more evidence, we came to different conclusions to Mr Davies on point (d), we would still nevertheless conclude that Mr Davies’s findings were not made without reasonable and proper cause (though of course the practical effect was that the original bad faith decision to withhold sick pay was not corrected). First claim – 30 October 2023[144]The claimant presented his first claim to the Tribunal on 30 October 2023. It was a claim for arrears of pay and other payments, relating to deductions from wages from August to October 2023, based upon the claimant’s assertion that he should have been on full pay over that time. Grievance appeal (decision 17 November 2023)[145]The claimant submitted an appeal against the grievance outcome on 25 October 2023. He provided detailed submissions on the following heads of appeal:a. Suspension.b. Direct race discrimination – in which he said that Mr Davies had not addressed his complaints about Mr Landi not being suspended and about Ms Wyatt’s actions around March 2023 (again, so far as the latter is concerned, we stress that no such complaint was pursued at this Tribunal).c. Breach of duty to protect employees from stress.d. Whistleblowing – again relating only to the 2022 incident.e. The respondent’s use of the other dismissals policy, asserting that the policy did not apply to him and that he was moving towards the conclusion that it was an orchestrated plan to dismiss him.[146]On 26 October 2023 the claimant was emailed that month’s payslip.[147]The claimant’s grievance appeal was dealt with on the papers by Mr Paul Bristowe, in a written decision of 17 November 2023. He upheld the original decision giving brief reasons. Mr Bristowe considered that the claimant had provided insufficient evidence to support the allegations about defamatory comments and had not provided any additional evidence at appeal. He upheld the original decisions on deductions from wages, race discrimination and whistleblowing as the claimant had not provided any additional evidence at appeal. He upheld the decision on breach of duty of care, giving reasons. He did not consider it was appropriate to address the complaint about suspension from work as it was part of the disciplinary process. Given our findings so far, the claimant has no cause for complaint about any of that. However, Mr Bristow also declined to consider the claimant’s complaint about the use of the other dismissals policy as he said it related to a disciplinary process and there was no ongoing process in which dismissal was being considered. But the use of the other dismissals policy by definition cannot have been to do with the disciplinary process – the other dismissals policy applies where the disciplinary policy does not apply. Mr Bristow therefore did not provide the claimant with an answer to what we consider to have been a significant aspect of the claimant’s complaint about his treatment, beyond simply asserting that there was no ongoing disciplinary procedure. Complaint about November pay – 4 December[148]On 30 November 2023 the claimant was sent his monthly payslip. On 3 December 2023 he emailed Ms Cavallo to complain about what he considered to be continuing unauthorised deductions, noting that he did not consent to the latest one. He also complained that he did not receive his payslip until 30 November. (The payment was made into his bank account on 24 November.) Resignation – 12 January 2024[149]The claimant resigned with immediate effect by way of an email of 12 January 2024. He set out the reasons for his resignation at some length. He considered, he said, the respondent’s conduct to be a fundamental breach of the employment contract and in particular the respondent had breached the duty of trust and confidence and he believed that he had been constructively dismissed. Particular complaints included:a. Failure to pay his salary.b. Breach of duty of care (health and safety).c. Improper handling of his grievance and disciplinary procedure.d. Deliberately prolonging timescales.e. Discrimination.f. Whistleblowing.g. Data protection (relating to subject access requests and CCTV).h. Changes to his job role without his agreement.i. Failure to provide payslips in advance of making payments.j. Being excluded from the work environment and access to IT systems since 12 July 2023; his suspension was never lifted.k. Excessive working hours.l. Invoking a disciplinary process which did not apply to him following the outcome of the disciplinary process (i.e. the other dismissals policy).m. His grievance not been dealt with until after without prejudice conversations had been finalised.[150]The claimant said that he had continued his employment (i.e. after he was informed that the other dismissals policy was invoked) as he believed the matter would be righted once it was reviewed. He said he had considered the possibility of returning to work, which had never been suggested by the respondent.[151]Ms Cavallo acknowledged the claimant’s resignation in an email of 17 January 2024, agreeing that the final day of employment would be 12 January.[152]Between 1 February 2024 and 14 March 2024 there was correspondence between Ms Cavallo and the claimant about his January pay, amongst other things. In light of the claimant’s “continuing mental health problems” the respondent offered to provide continued access to their employee assistance programme and healthcare insurance until 31 March 2024.[153]We would finally note that according to a note emailed to the claimant on 14 March 2024, the respondent appears initially to have paid the claimant full pay from 1 to 12 January, and indeed in the months preceding, but then later deducted half of that to correct what the respondent saw as an error (as we have said, the respondent’s view was that by that time the claimant should have been on half pay). Second claim – 28 March 2024[154]The claimant presented his second claim to the Tribunal on 28 March 2024. The claim was for unfair constructive dismissal, race discrimination, arrears of pay and whistleblowing detriment. The preliminary hearing of 4 December 2024 (EJ Tueje)[155]A preliminary hearing took place on 4 December 2024, at which our colleague EJ Tueje considered both claims, deciding that any argument as to time limits and/or whether the discrimination and whistleblowing complaints should be struck out as an abuse of process should be dealt with at a final hearing. (The latter was not ultimately pursued.) A draft List of Issues was approved, subject to the provision of further particulars relating to some of the complaints, with the parties to agree a final List. The usual directions relating to case preparation were also made.
LAW
[156]We refer below to some of the authorities which were cited during the course of the hearing. We also include some authorities which were not explicitly cited, but are in effect incorporated into the list of issues and which are so well known to employment practitioners that counsel’s submissions took account of them even if they were not directly referred to. Constructive unfair dismissal[157]Section 94 of the Employment Rights Act 1996 (“ERA”) confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under s 111 ERA. The right only applies if there was a dismissal. Generally, then, it will not apply to resignation. However, by s 95 ERA, a resignation is to be construed as a dismissal (and therefore may engage the right not to be unfairly dismissed) if the employee terminates the contract under which they are employed in circumstances in which they are entitled to terminate it without notice by reason of the employer’s conduct. The employer’s conduct here is a “fundamental” or “repudiatory breach”, in other words a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract (Western Excavating (ECC) Ltd v Sharp 1978 ICR 221). A resignation which amounts to a dismissal by operation of s 95 is known as a constructive dismissal.[158]In this case, the claimant’s case was that the respondent breached the implied contractual term as to trust and confidence, formulated in Malik and Mahmud v BCCI [1997] ICR 606 as an obligation that the employer must not “without reasonable and proper cause, conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.” A breach of this term will inevitably be fundamental (Morrow v Safeway Stores plc 2002 IRLR 9). Merely acting in an unreasonable manner is not sufficient. The strength of the implied term is shown by the fact that it is only breached if the employer demonstrates objectively by its behaviour that it is abandoning and altogether refusing to perform the contract; this is a “demanding test” (Frenkel Topping Limited v King UKEAT/0106/15/LA). In practice the tribunal proceeds by asking:(i) was there reasonable and proper cause for the employer’s action and(ii) if not, when viewed objectively was the conduct calculated or likely to destroy or seriously damage trust and confidence?[159]Simply establishing a breach of contract is not enough. In order to succeed in a claim for constructive dismissal, a claimant must prove that they resigned as a direct result of the respondent's breach and not for some other reason; there has to have been a causal connection between the breach of contract and the resignation (Ishaq v Royal Mail Group [2017] IRLR 208, EAT). If there was a fundamental breach by the employer, it must be a (though not the only) reason for the employee’s resignation – see for example Wright v North Ayrshire Council [2014] IRLR 4, in which the EAT held that the crucial question, in establishing whether an employee who had more than one reason for resigning had been constructively dismissed, was whether a repudiatory breach of contract had played a part in the resignation. An employee can exercise his or her right to rely upon the breach at any time while it is continuing (Reid v Camphill Engravers 1990 ICR 435).[160]There is no constructive dismissal if, after a fundamental breach, the employee affirms the contract, i.e. behaves in a way which shows that he or she intends the contract to continue (Western Excavating (ECC) Ltd v Sharp 1978 ICR 221). The issue is one of conduct, not merely the passage of time. Delay in resigning is relevant to whether the breach was affirmed, though it is not determinative of the issue – see WE Cox Toner (International) Ltd v Crook 1981 ICR 823 (mere delay by itself did not constitute an affirmation of the contract but if the delay went on for too long it could be very persuasive evidence of an affirmation). Delay in resignation whilst an employee is on sick leave is less likely to amount to an affirmation than if the employee is still attending work.[161]A sequence of events may meet the test even if none of its individual components does. An employee may rely on a “last straw” which was not itself a repudiation of the contract; this is so even if the employee affirmed the contract after the earlier matter as long as the last straw adds something new and effectively revives those earlier concerns (Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 97). If the last straw is entirely innocuous or trivial, and none of the preceding matters amount to a fundamental breach of contract, the claim of constructive dismissal will fail.[162]In Kaur (at para 55) the Court of Appeal said that in a normal claim of constructive dismissal it will be sufficient for the Tribunal to ask itself the following questions:(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation ?(2) Has he or she affirmed the contract since that act?(3) If not, was that act (or omission) by itself a repudiatory breach of contract?(4) If not, was it nevertheless a part […] of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term ? (If it was, there is no need for any separate consideration of a possible previous affirmation[…].)(5) Did the employee resign in response (or partly in response) to that breach?[163]A constructive dismissal is not necessarily an unfair one (Savoia v Chiltern Herb Farms Ltd 1982 IRLR 166). If there was a constructive dismissal, just as with any other form of dismissal, under ERA the Tribunal must consider whether it was fair. S 98 ERA deals with the fairness of dismissals in two stages. First, the employer must show that it had a potentially fair reason for the dismissal within section 98 (1) and (2). Second, if the employer shows that, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason and in particular whether the respondent in all respects acted within the so-called “band of reasonable responses”. In a case of constructive dismissal, the reason the reason for dismissal is the reason for which the employer breached the contract of employment (Berriman v Delabole Slate Ltd 1985 ICR 546). However, if an employer does not attempt to show a potentially fair reason at all in a constructive dismissal case but instead simply relies on the argument that there was no dismissal, a tribunal will be under no obligation to investigate the reason for dismissal (or its reasonableness) for itself — Derby City Council v Marshall 1979 ICR 731, EAT. Reduction of awards for unfair dismissal[164]In the event that it concludes a dismissal was unfair, the Tribunal may go on to consider whether any adjustment should be made to the compensatory aspect of the award for damages on the grounds that if a fair process had been followed by the respondent in dealing with the claimant’s case, the claimant might still have been fairly dismissed, in accordance with the principles in Polkey v AE Dayton Services Ltd [1987] UKHL 8. The principle applies whether a dismissal is procedurally or substantively unfair, since the distinction between the two is difficult to draw in practice. The question is what the particular employer would have done, not what a hypothetical fair employer would have done. The burden of proving that an employee would have been dismissed in any event is on the employer.[165]Separately to Polkey, the Tribunal may also consider whether any adjustment should be made to the basic and compensatory elements of any award on the basis of “contributory fault”. S 122(2) deals with the basic award: “Where the tribunal considers that any conduct of the complainant before the dismissal … was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.” S 123(6) ERA deals with the compensatory award: “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”[166]In Rao v Civil Aviation Authority [1994] IRLR 240 the Court of Appeal held that a Tribunal is entitled to reduce a compensatory award both for contributory conduct (under what is now s 123 ERA) and to reflect a finding that if a fair procedure had been followed then there was a chance that dismissal would still have happened (i.e. a Polkey reduction). The deduction under the Polkey principle may very well have a significant bearing on what further deduction should made for contributory conduct, so the Tribunal should first apply the Polkey principle and then consider contributory conduct. Since the deduction made under Polkey could affect what was the just and equitable deduction from the compensatory award for contributory conduct, the latter would not necessarily be the same as any deduction from the basic award for contributory conduct. But, if a different percentage is to be applied to the reductions in the compensatory and basic awards, the basis for that conclusion should be set out (Dee v Suffolk County Council EAT 0180/18).[167]In Steen v ASP Packaging Ltd [2014] ICR 56 at para 11 the EAT said that when the Tribunal considers reducing the basic and compensatory awards on account of the claimant’s conduct it must:(1) identify the conduct which is said to give rise to the possible contributory fault;(2) having identified that, ask itself whether that conduct is blameworthy;(3) ask whether the blameworthy conduct identified caused or contributed to the dismissal and(4) decide what the extent of the reduction should be. As the same case makes clear, there is no question of considering the band of reasonable responses – it is the Tribunal’s view alone which matters. The EAT also said that a finding that a claimant was 100% responsible for his dismissal, and that it would therefore be just and equitable to reduce compensation by that amount (i.e. to zero), would be unusual (para 17) or exceptional (para 18) but was permissible.[168]In Hollier v Plysu Ltd 1983 IRLR 260 the EAT had suggested (and the Court of Appeal implicitly agreed at para 18) that the contribution should be assessed broadly and should generally fall within the following categories: employee wholly to blame (100% reduction); employee largely to blame (75%); employer and employee equally to blame (50%); employee slightly to blame (25%).[169]A finding that an employee’s conduct is the sole cause of his or her dismissal will not inevitably result in a zero award; a Tribunal might still have to modify the percentage reduction in light of what is just and equitable (Lemonious v Church Commissioners UKEAT/0253/12/KN). Direct race discrimination[170]S 39 of the Equality Act 2010 (“EqA”) says that an employer must not discriminate against an employee by (amongst other things) dismissing them or by subjecting them to any other detriment. There was no dispute here that the claimant was the respondent’s employee within the meaning of the Act. Nor was there any dispute that the respondent would be liable under s 109 for any contraventions of the Act done by other employees (e.g. the claimant’s managers). Under s 13(1) EqA read with s 9, direct discrimination takes place where because of race a person treats the claimant less favourably than that person treats or would treat others.[171]By s 23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case. The circumstances need not be precisely the same, provided they are close enough to enable an effective comparison: Hewage v Grampian Health Board [2012] UKSC 37. In many direct discrimination cases, it is appropriate for a Tribunal to consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of a protected characteristic (in this case, race). However in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the “reason why” the claimant was treated as they were (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] IRLR 285).[172]The protected characteristic need not be the only reason for the treatment, provided it had a significant influence on the outcome (Nagarajan v London Regional Transport [1999] IRLR 572, HL). The case law recognises that very little discrimination today is overt or even deliberate; people can be unconsciously prejudiced. A person’s motive is irrelevant, as even a well meaning employer may directly discriminate.[173]S 136 of the EqA makes provisions about the burden of proof. If there are facts from which the Tribunal could decide, in the absence of any other explanation, that there was a contravention of the Act, the Tribunal must hold that there was a contravention, unless the respondent proves that that there was not a contravention. S 136 requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but has nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another (Hewage above). The burden of proof does not shift where there is no evidence to suggest the possibility of discrimination (Field v Steve Pye and Co (KL) Ltd [2022] EAT 68). Guidelines on the application of s 136 were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142 and the importance of these was recently restated by the Employment Appeal Tribunal in Field v Steve Pye and Co (KL) Ltd [2022] EAT 68. We do not reproduce the thirteen steps of the guidance here, but we took account of all steps. One important point to note is that the question is whether there are facts from which a Tribunal could decide… It is not sufficient for the employee merely to prove a difference in protected characteristic and a difference in treatment. Something more is required (Madarassy v Nomura International Plc [2007] EWCA Civ 33). Unfair or unreasonable treatment on its own is not enough (Glasgow City Council v Zafar [1998] IRLR 36). If the burden of proof does shift, under the Igen guidance the employer must prove that the less favourable treatment was “in no sense whatsoever” because of the protected characteristic. Because the evidence in support of the explanation will usually be in the possession of the employer, tribunals should expect “cogent evidence” for the employer’s burden to be discharged. Protected disclosure detriment[174]The law provides certain protections for people, commonly described as whistleblowers, who make “protected disclosures”. By s 43A, a protected disclosure means a qualifying disclosure made by a worker (which includes an employee) in accordance with any of sections 43C to 43H. By s 43B, a qualifying disclosure means any disclosure of information which, in the reasonable belief of the person making the disclosure, is made in the public interest and tends to show one or more of a number of things (“the wrongdoing”). One of those things (s 43B(b)) is that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.[175]A qualifying disclosure is made in accordance with sections 43C to 43H if made directly to an employer (s 43C(1)(a)). In such a case, the Tribunal will consider the following. First, was there a disclosure of information? The disclosure need not be in writing. Depending on the content and context, an allegation may amount to information Kilraine v London Borough of Wandsworth [2018] ICR 1850. It is immaterial that the recipient is already aware of the information (s 43L(2)). Several communications, even to multiple recipients, may be read together (Norbrook Laboratories (GB) Ltd v I[2014] ICR 540). Second, did the claimant believe two things:(i) that the information tended to show the relevant wrongdoing and(ii) that the disclosure was in the public interest. So far as both beliefs (i) and (ii) are concerned, it is the claimant’s belief at the time of making the disclosure (not any later) that is relevant, and the belief must be a genuine, subjective belief.[176]So far as (i) is concerned, the reasonableness of the belief may depend on the claimant’s status (i.e. layperson or expert – Korashi v Abertawe Bro Morgannwg Local Health Board 2012 IRLR 3). There must be a belief not just that there was wrongdoing, but that the information tends to show it (Soh v Imperial College of Science, Technology and Medicine EAT 0350/14).[177]So far as (ii) is concerned, there is no requirement that the information is provided in good faith. There is a distinction between belief (which is relevant) and motive (which is not) (Virgin Active Ltd v Hughes 2023 EAT 130). In deciding whether it was reasonable for the claimant to believe that disclosure was in the public interest, relevant factors to be weighed include: the size of the group affected by the wrongdoing, the nature of their interests and the extent to which those interests were affected, the nature of the wrongdoing and the identity of the wrongdoer Chesterton Global Limited v Nurmohamed [2018] ICR 731.[178]By s 47B ERA, a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. Enforcement of the right is by way of complaint to the Tribunal under s 48 ERA. An employee may not complain that a dismissal amounts to a detriment (see s 47B(2); instead the remedy there lies under s 103A). Otherwise, the word detriment is not defined in ERA. In Ministry of Defence v Jeremiah 1980 ICR 130 Brandon LJ said that it meant simply “putting under a disadvantage”, while Brightman LJ said that there is detriment “if a reasonable worker would or might take the view that [what the employer did] was in all the circumstances to his detriment”. There is no requirement for the detriment to be of any particular severity, though it must be a detriment to which the employee was subject “in the employment field” (Tiplady v City of Bradford Metropolitan District Council 2020 ICR 965).[179]By operation of s 48(2) ERA, while it is for the claimant to prove that they made a protected disclosure and that they were subjected to a detriment by the employer, if they prove those things, it will be for the employer to prove the ground on which any act (or failure to act) was done – the respondent will be required to prove that the protected disclosure was not a material influence, i.e. that it played no part whatsoever in the act – Fecitt v NHS Manchester [2012] ICR 372. (In contrast with a dismissal for whistleblowing, in which case the issue is whether the whistleblowing was the principal reason for the dismissal.) Unauthorised deductions[180]S 13(1) ERA provides that an employer shall not make an unauthorised deduction from wages of a worker employed by him. Paying less than is due under the contract is one example of such a deduction. An employee has a right under s 23 ERA to complain to an Employment Tribunal of an unauthorised deduction. The Tribunal has no jurisdiction to consider complaints relating to deductions made before the period of two years ending with the date of presentation of the complaint.[181]The “wages properly payable” by an employer to a worker under s13(3) are sums to which the employee has some legal, though not necessarily contractual, entitlement (New Century Cleaning Co Ltd v Church [2000] IRLR 28).[182]In Wright v Weed Control Limited UKEAT/0492/07/DM the EAT upheld the first-instance decision that the employer had unlawfully deducted from wages in failing to pay the basic salary following a disciplinary suspension. The claimant had been suspended in accordance with the respondent’s disciplinary rules. The contractual term authorising the suspension provided that in the event of an investigation into gross misconduct, an employee could be suspended (for a short a time as possible) on full pay. Immediately after having been suspended, the claimant was signed off for sickness by his doctor. His contract provided that if sick he would be paid only statutory sick pay (plus any discretionary payment). The EAT rejected the respondent’s argument that there was an implicit assumption underlying the duty to pay basic pay that the employee was ready and willing to work and that the claimant had not been ready as he was sick. The company had suspended the claimant before he went to see his doctor for the sick note. Under the contract the obligation to pay full salary was a necessary condition to a lawful disciplinary suspension: “There is no provision expressly stating that an employee must remain ready and willing to work, nor that he should simply receive what he would have done had he not been suspended. We see no reason to qualify the clear language of the contractual term in that way.”[183]In Braganza v BP Shipping Ltd [2015] IRLR 487 the Supreme Court considered an employment contract which provided for a payment for death in service. The following summary paraphrases parts of the headnote of the report. A particular clause provided that compensation for death would not be payable where, “in the opinion of” the employer the death had resulted from the wilful act or default of the employee. The employer formed that opinion – it decided that the employee’s death had been by suicide – and declined to make a payment. The claim was for breach of that contract in declining to make the payment. The majority in the Supreme Court considered that the decision that the employee had died by suicide had been unreasonable in the Wednesbury sense and that the claim would succeed. Where a contractual term gives one party a power to exercise a discretion or to form an opinion as to relevant facts, and there is a significant imbalance of power between the parties, as there will often be in an employment contract, the law implies a term as to how that power may be exercised, a term which will vary according to the terms of the contract and the context in which the power is given. Where it could not imply a term that the outcome be reasonable, the court will imply a term that that the decision-making process be lawful and rational in the public law sense, that the decision is made rationally (as well as in good faith) and consistently with its contractual purpose. In the particular case of an employment contract, any decision-making power exercised by an employer has to be exercised in accordance with the implied obligation of trust and confidence. Breach of contract[184]By operation of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994/1623, an employee may complain to an Employment Tribunal about a breach by their employer of their employment contract, provided that the claim arises or is outstanding on the termination of their employment (subject to some exceptions that do not apply to this case). Time limits[185]All the complaints in this case are subject to a three-month time limit, as extended by the early conciliation provisions of s 207B ERA. The effect of the provision in this case is that any time spent in early conciliation will not count towards the three-month period, i.e. the “clock is stopped” during conciliation. In some cases, Section 207B(4), can apply to further extend the three-month period, allowing for a claim to be presented within a month of the end of conciliation even where it would otherwise be out of time.[186]If a claim is presented outside the time limit, different tests apply for whether to extend time, depending on the sort of complaint. The complaint of discrimination in this case would be subject to a “just and reasonable” test under EqA, whereas the others would be subject to a “reasonably practicable” test under ERA. Extension of time under ERA[187]By section 111 ERA, a Tribunal shall not consider a complaint of unfair dismissal unless it is presented to the Tribunal:(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. The effective date of termination here will be the date on which the claimant resigned.[188]A materially identical provision (s 23 ERA) applies to complaints about unauthorised deductions from wages. The time limit will run from the time the deduction (or the last deduction in a series) was made. If there was no payment made at all, time will run from when the payment was due under the contract.[189]In Palmer and anor v Southend-on-Sea Borough Council 1984 ICR 372, the Court of Appeal explained that “reasonably practicable” does not mean reasonable, which would be too favourable to employees, and does not mean physically possible, which would be too favourable to employers, but means something like “reasonably feasible”. In Asda Stores Ltd v Kauser EAT 0165/07 Lady Smith said: “The relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done.” The same case makes clear that the burden of establishing it was not reasonably practicable lies on the claimant. Extension of time under EqA[190]By s 123(1) of the Equality Act 2010 (“EqA”), claims to the Employment Tribunal under the Act may not be brought after the end of the period of 3 months starting with the date of the act to which the complaint relates or “such other period as the Tribunal thinks just and equitable”. S 123(3) of the Act provides that conduct extending over a period is to be treated as done at the end of the period.[191]A distinction is drawn between a continuing act (i.e. a policy, rule, scheme, regime or practice that continues to be applied) and an one-off act that has merely continuing consequences. But in Commissioner of Police of the Metropolis v Hendricks 2003 ICR 530, the Court of Appeal said that ‘policy, rule, scheme, regime or practice’ should not be treated as a complete statement of what amounts to a continuing act; the focus should be on the substance of the complaint. This was approved in Aziz v FDA 2010 EWCA Civ 304, where the Court noted that, in considering whether separate incidents form part of an act extending over a period, one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents.[192]So far as the discretion to extend time is concerned, it has been said that the exercise of the discretion is the exception not the rule (Robertson v Bexley Community Centre t/a Leisure Link 2003 IRLR 434). But an extension does not require exceptional circumstances. In exercising the discretion a Tribunal may (not must) have regard to the checklist contained in S.33 of the Limitation Act 1980, as modified by the EAT in British Coal Corporation v Keeble and ors 1997 IRLR 336. As summarised by the authors of the IDS Manual, this suggests the Tribunal consider the prejudice that each party would suffer as a result of the decision reached and have regard to all the circumstances of the case, in particular: the length of, and reasons for, the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the respondent has cooperated with any requests for information; the promptness with which the claimant acted once he or she knew of the facts giving rise to the complaint; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action. CONCLUSIONS Constructive dismissal
CONCLUSIONS
[193]The List of Issues, at 3.2, set out a number of things which were said to have been fundamental breaches of the implied term of mutual trust and confidence (“the implied term”). As we have said, such a breach takes place where without reasonable and proper cause, an employer conducts itself in a manner “calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties”. Any breach of that term is regarded in law as a fundamental breach.[194]For reasons already set out above, we find unanimously that a number of the pleaded breaches of the implied term either did not happen or did happen but were not done without reasonable and proper cause. Those were Issues 3.2.2, .3, .4, .5, .11, .14, .15, .17, .18, .20 (and .9 was withdrawn).[195]Issue 3.2.16 related to the disciplinary procedure and the appeal against the final written warning. (All agreed that the List referred to the appeal against “dismissal” in error.) On the basis of our findings above there can have been no breach of the implied term during and after the disciplinary meeting – the decisions to suspend and to issue the final written warning were not without reasonable and proper cause and there is no cause for complaint about the disciplinary meeting or the appeal. But as we have said, we do accept that the claimant has some reasonable cause for complaint about the initial investigatory meeting:a. The investigatory meeting was sprung on him so that he had no real opportunity to exercise his right to be accompanied. There was no good reason in our view not to have given him notice of the meeting.b. He was not given the opportunity to address the previous incidents (albeit he was later given that chance at the disciplinary meeting).c. He was reasonably expecting an opportunity to give a fuller account at the investigatory stage and was not given that opportunity (until the later disciplinary hearing).[196]However, while we accept that those are all legitimate complaints, we do not consider that either alone or in combination they were so serious as to be calculated or likely to destroy or seriously damage the employment relationship. Had they gone unaddressed at later stages of the process they might have escalated to that point, but in our judgment their effect on the fairness of the procedure was not such as to amount to a breach of the implied term.[197]Issue 3.2.12 (marking open correspondence as without prejudice) did happen and was not done for reasonable and proper cause. It was however a relatively trivial error and we do not consider that in all the circumstances it came even close to being calculated or likely to destroy or seriously damage the employment relationship.[198]We did however all consider the following (i.e. each of them individually) to have amounted to breaches of the implied term, being done without reasonable and proper cause and calculated or likely to destroy or seriously damage the employment relationship:a. Issue 3.2.6 Orchestrating events to force the Claimant out of his job to include using the ‘Other Dismissals’ Policy. There is force in the claimant’s argument that the respondent was seeking to have a second bite of the cherry here, having recognised in our view that dismissing the claimant for misconduct – even where the conduct did in fact amount to gross misconduct – might well have been seen as disproportionate. The claimant was unambiguously placed under the threat of dismissal for conduct which had already been fully addressed in disciplinary proceedings, a threat which was not revoked. It was made clear to the claimant that he could not (or at least need not) return to work until he attended a meeting under the policy.b. Issue 3.2.13 Not upholding the Claimant’s grievances and Issue 3.2.22 Failing to deal with his grievances impartially and in confidence, in a timely manner, investigate these thoroughly and reaching conclusions that no reasonable employer would reach. These complaints were made out (i.e. amounted to breaches of the implied term) to a limited extent, namely that the claimant’s complaint about the use of the “other dismissals” policy was never properly addressed (see above under the heading Grievance appeal (decision 17 November 2023). Since we have found the use of the policy itself to have been a breach, we also consider that the failure to address the claimant’s concern about it can properly be said to have been a further breach. (In practice this adds little since the original breach was in our judgment still ongoing at the point of the claimant’s resignation – the threat of dismissal under the policy had never been withdrawn and so whenever the claimant had been fit to return to work, the respondent’s requirement for him to attend a meeting under the policy before resuming work would still have been in place.)c. Issues 3.2.1, .7, .10 and .23 all concerned withholding the claimant’s pay. We all consider that the decision on 3 August 2023 to withhold the claimant’s sick pay, in bad faith and not in accordance with any contractual right, amounted to a breach of the implied term. (As to the point about contractual right, see below.) The different approaches taken by the majority and the minority regarding the lifting of the claimant’s suspension lead to some difference in how long the breach went on: i. On Mrs Boot’s view, the breach persisted until the claimant’s resignation – he should have been on full pay since his suspension began. ii. On EJ Dick and Mrs Brosnan’s view, under the term relating to sick pay, the respondent should have paid the claimant full pay from 31 July 2023 to 20 November 2023 (i.e. 16 weeks after the sickness absence started) and, after that, half pay until the end of his employment. What the respondent in fact appears to have intended was to pay statutory sick pay only until 9 October, full pay from 9 October and half pay from 20 November. So the claimant would have been underpaid until 9 October, but received the correct pay after that. (Even on that analysis, it should be noted, the breach was never remedied after 9 October.) But there is then the point that the respondent accidentally paid the claimant his full pay till mid-January and only appears to have realised its “error” and deducted from the claimant’s pay in early 2024. So in fact the underpayment, or part of it, was only achieved or effected shortly before or after the claimant’s resignation, though it had been threatened before that.[199]Mrs Boot (but not EJ Dick and Mrs Brosnan) considered the following also to be a breach of the implied term: Issue 3.2.19 Being excluded from the work environment and IT systems and processes for employed staff… (i.e. being prohibited form contacting colleagues etc). Although the initial decision to suspend was made for reasonable and proper cause, Mrs Boot’s view was that, despite what the respondent was saying, the suspension in reality carried on after the claimant had been given the final written warning. There was no reasonable and proper cause for that, and the very fact of an improper suspension, but also its effect – the claimant being deprived of access to IT facilities, including payslips, and to the respondent’s premises, and to his colleagues – was calculated or likely to destroy or seriously damage the employment relationship. (EJ Dick and Mrs Brosnan took the contrary view – the suspension was lifted when it should have been, so there was no breach.)[200]That leaves two of the pleaded breaches. Issue 3.2.8 On 4 August 2023, informing the Claimant his suspension had been lifted on 31 July on a literal reading seems to run contrary to the claimant’s case, which is that his suspension was never lifted. To the extent that it is in reality a complaint about the claimant’s suspension continuing after 4 August, that is addressed in the previous paragraph.[201]In our judgment Issue 3.2.21 Damaging the Claimant’s professional reputation and his chances of future employment adds little – to the extent that things were done without reasonable and proper cause which did do such damage, those things have already been found to be fundamental breaches and have been taken into account. So far as what the respondent was said to have told Workman about the claimant (in relation to the CCTV), see para 82 above. Regarding the “gossip” (see paras 125 and 139) the claimant did not produce sufficient evidence to show that the respondent was responsible for any breach in the confidentiality of the disciplinary process, and we have already concluded that the respondent was entitled not to have conducted any further investigation into the claimant’s allegation about that.[202]To summarise so far, there were three separate breaches of the implied term (or four, on the minority view). We all accept that the claimant did in fact resign for the reasons set out in his resignation letter, which included all of the three things we all found to have been breaches of the implied term. While those three were plainly not the only reasons the claimant resigned, we do all find that they were each an effective cause of the resignation – the claimant’s keen sense of grievance was readily apparent from the written and oral evidence in this case. (The same applies in the minority view to the points relating to Issue 3.2.19 set out above.)[203]The respondent did not place a great deal of reliance upon a contention that, if there had been a breach of the implied term, the claimant delayed too long before resigning, so we deal only briefly with the point. The claimant resigned on 12 January 2024, having had a final answer to his grievances on 17 November 2023. He made clear after that point in correspondence that he was dissatisfied with the outcome, and continued to question deductions from his pay well after that. The deductions from his pay, although decided on in early August 2023, appear to have been ongoing at the point the claimant resigned, at the very least in the sense that they had not been resolved. The improper threat of dismissal under the other dismissals policy persisted until the claimant’s resignation . The claimant did not continue to attend work as normal – he was off sick. Affirmation is an issue of conduct rather than simply passage of time, and the claimant’s conduct in our judgment did not amount to affirmation. Given the volume of correspondence, nobody could have concluded that the claimant had decided to drop the matter. In light of those findings, we did not need to consider any issue as to whether there was a “final straw” as part of a course of conduct.[204]For all of those reasons, we all find that the claimant was constructively dismissed. In its response, the respondent asserted that if there was a constructive dismissal there was a fair reason, namely incapability due to continuing ill-health and/ or some other substantial reason arising from a breakdown in relationships following the claimant’s conduct on 5 July 2023. Those points were not pursued before us with as much vigour as other aspects of the respondent’s case, and we deal with them briefly. The respondent did not do any of the things which amounted to breaches of the implied term because the claimant was incapable of work due to long term ill-health, and if it had purported to, that would have been unfair as there was simply no evidence about the claimant’s prospects of a return to work (for example, no OH referral). The respondent did not stop the claimant’s sick pay or not address the claimant’s grievance about the other dismissals policy because of a breakdown in relations with his colleagues, and if it had done that would not have been fair. While the respondent might be said to have sought to apply the other dismissals policy because of a breakdown in relations, which might amount to some other substantial reason, that was not fair in all the circumstances, i.e. no reasonable employer could have so acted – the claimant’s own line manager did not believe the breakdown was irretrievable, no efforts were made to see whether the issue could be addressed, e.g. by mediation or seeing whether the final written warning had the desired effect, and the conduct in question had already been the subject of disciplinary proceedings. Polkey/Contributory fault[205]As regards Polkey, the respondent’s relied on two propositions. First, if the respondent had conducted entirely fair procedures, the claimant would still have ended up with a final written warning on his disciplinary record, which would have been live for 12 months. Second, given the claimant’s relationship with his colleagues, another “flare-up” was likely or inevitable, which, given the final written warning, would have resulted in dismissal, or, alternatively, given what had happened the claimant and his colleagues would have struggled to work together. We accept the first of those propositions, but not the second. There was, as we have said, little direct evidence about the other incidents, and we have not made any findings about whether the claimant was to blame, but clearly he had had disputes with other colleagues. The evidence about the events of 5 July was of course far clearer. But the evidence does not in our judgment point to a conclusion that there was a significant chance of a further “flare-up”, for a number of reasons. The claimant had never been subject to any previous disciplinary process and would have had the final written warning hanging over him; he would likely have modified his behaviour because of it. Mr Hodgkin himself did not consider the relationship to be damaged beyond repair, and there is every reason to conclude that, had the proper efforts been made to repair the relationship, then the relationship could have been repaired. A considerable amount of cooling off time would have passed before the claimant’s return to work. In all those circumstances, we consider that there was not a material chance of another “flare-up” during the currency of the warning, and that the claimant would have been able to resume work with his colleagues. We therefore do not consider that the respondent has shown that the claimant would have been dismissed for some other reason.[206]As to contributory fault, the claimant was plainly guilty of blameworthy conduct on 5 July 2023. But that conduct contributed to the justifiable decision to give him a final written warning, not to a decision to dismiss him. (And his conduct before 5 July, whether blameworthy or not, had, as we have already explained, been taken into account in deciding upon that penalty.) We do not think it can be fairly said that the claimant’s conduct on 5 July contributed to the respondent’s decisions to withhold the claimant’s sick pay in bad faith and to invoke the other dismissals policy; alternatively, if it did, we do not consider that it would be just and equitable to reduce the basic or compensatory awards because of it – it was conduct which the respondent itself considered not to warrant dismissal and which had already been formally dealt with before the decisions we have just referred to. Wages[207]In this case, given the agreement about the relevant policies forming part of the contractual terms, there did not appear to us to be any material distinction between sums to which the claimant was contractually entitled and any other legal entitlement.[208]The List of Issues specified a number of particular deductions, but in reality there were two points in contention.[209]The first point was whether, if the claimant’s suspension was never lifted, the respondent should have continued to pay the claimant his full pay, notwithstanding that the claimant went off sick – i.e. did the requirement to pay full pay while on suspension trump the provisions on sick pay which otherwise would have allowed half pay after 16 weeks. On the majority’s findings, this point did not arise for consideration, since the claimant’s suspension was lifted. Mrs Boot, considering that the suspension had never been lifted, was of the view that, following Wright v Weed Control Limited (see para 182 above), the claimant should have been entitled to full pay even after he went off sick. Although the part of the disciplinary policy relating to suspension provided that the claimant should “remain available for work if requested”, he was not requested to work (because he was sick) and the contract did not say that when he was suspended he should simply receive what he would have done had he not been suspended. Under the claimant’s contract, as in Mr Wright’s, the obligation to pay full salary was a necessary condition to a lawful disciplinary suspension, and the suspension was not lifted on the minority view. On Mrs Boot’s view, then, the respondent made unauthorised deductions from the claimant’s wages from all of the period from 3 August 2023 (i.e. when the claimant began only to be paid statutory sick pay) until the time of his dismissal, save for the short time within that period when he was paid at the full rate.[210]The second point, which does arise for determination upon the majority’s findings, is as follows. Since the suspension had been lifted, the requirement to pay full pay on suspension did not apply after the claimant went off sick. The contractual provisions relating to sick pay did apply. Was the respondent, as it asserted, entitled to withhold the claimant’s sick pay from 3 August 2023 because there was an ongoing disciplinary process? In particular, given that the “first instance” part of the disciplinary proceedings had by this point concluded, was an appeal (or a contemplated appeal) part of the disciplinary process for those purposes? Ultimately that is an issue of the proper construction of the claimant’s employment contract (of which, the parties agreed, the relevant policies were a part).[211]The respondent was obliged to pay the claimant full salary for the first 16 weeks of a sickness absence, and half salary for the next 16 weeks. The contractual term we quote at para 26 above permitted that to be withheld during a disciplinary process. As we heave already observed, there was no explicit definition of “disciplinary process” and in particular no indication of whether an appeal was to be considered part of the process. At the time the respondent purported to withhold sick pay, the disciplinary process had concluded. The claimant had been issued with a sanction – a final written warning – and had only indicated an intention to appeal. But even if the claimant had, as he later went on to do, presented an appeal, the respondent was not in our judgment entitled to withhold sick pay. We consider that, for the reasons we set out at para 108(b), the correct interpretation of the contract was the “disciplinary process” for these purposes did not include an appeal. The respondent was not therefore entitled to withhold sick pay in these circumstances. Where it did not pay the claimant’s full pay for the first 16 weeks of the claimant’s sickness absence (or where it later purported to recover that full pay that it said had been paid in error) the respondent made unauthorised deductions from the claimant’s wages.[212]If we had instead considered that the “disciplinary process” did include an appeal, and that the respondent therefore did have the power under the contract to withhold sick pay during an appeal against a disciplinary sanction, we would have decided that, following Braganza (para 183 above), there was an implied term that the power must be exercised, amongst other things(i) in good faith(ii) consistently with its contractual purpose and(iii) in accordance with the implied obligation of trust and confidence. For the reasons we have already set out, none of those three applied to the respondent’s exercise of the power. The power was exercised in bad faith (para 109 above) and in a manner which breached the obligation of trust and confidence (para 198). It was not exercised consistently with its contractual purpose (para 108(b)). Breach of contract[213]For the same reasons, we conclude that the respondent was in breach of contract. There was a term of the contract requiring the respondent the pay the claimant CSP from August 2023 and the respondent did not do so to the extent set out at para 211 above. Direct race discrimination[214]As we have set out above, the claimant has not proven to the civil standard that he was portrayed by the respondent to the building management company in the manner alleged, and so that part of the discrimination complaint fails on that basis. As regards the other part, it is right that the claimant was suspended (and that Mr Landi was not). As we have explained above, although he was the other participant in the conversation which resulted in the claimant’s suspension, Mr Landi was not in materially the same circumstances as the claimant and so in our judgment was not a proper comparator. Further, there is no basis on which a Tribunal could conclude that the claimant was treated worse than a notional comparator, i.e. someone of a different race who had said what the claimant said on the evening of 5 July after a meeting earlier in the day in which he had been warned against such behaviour. The burden of proof did not shift to the respondent. The claimant has not established a difference in treatment, let alone that there was “something more”. The complaint of race discrimination is therefore dismissed. Whistleblowing detriment[215]As regards the first disclosure, we were in some doubt as to whether the claimant established that he made a protected disclosure about the July 2022 comments made by Mr A, and in particular that at the time of making the disclosure the claimant reasonably believed that his disclosure was in the public interest. But even if the claimant has established that, the respondent proved that the disclosure played no part whatsoever in any of the things listed at 5.8 of the List of Issues. For the reasons we have already set out, we also reject the claimant’s contention that the disciplinary process was misused or that concerns about his performance were “fabricated”.[216]As regards the second disclosure, we do not accept that the that at the time of making the disclosure the claimant reasonably believed that his disclosure was in the public interest, nor that he reasonably believed that his disclosure tended to show that a legal obligation was being breached. The claimant therefore did not make a protected disclosure to Ms Wyatt in March 2023. Even if he had, the disclosure played no part whatsoever in any of the things listed at 5.8 of the List of Issues.[217]The complaint of whistleblowing detriment is therefore dismissed. Time limits[218]Even if the point is not taken, the Tribunal must still consider time limits if a claim is presented out of time.[219]There is no question that the complaint of unfair dismissal was in time, being presented less than three months after the claimant’s resignation. The same applies to the breach of contract complaint. The complaint relating to unauthorised deductions from wages was also presented within three months of the deductions complained of.[220]The only point taken on time limits (see the list of issues below) was whether the complaints relating to whistleblowing detriment were in time. In this case, regardless of the time limits point we had to consider the substantive merits of the whistleblowing detriment complaint, since the detriment was also pleaded as one of the factors contributing to the (in time) constructive dismissal complaint. Having concluded that the complaint was not made out, there is no real need for us to determine the time limits point, so we deal only briefly with the point. The detriment complaint was made on the second claim form, which was presented on 28 March 2024. We doubt that the second of the claimant’s ACAS certificates, which was the certificate which accompanied the second claim, can have had any effect on time limits, given the decisions in Revenue and Customs Commissioners v Serra Garau [2017] ICR 1121 Compass Group UK & Ireland v Morgan [2017] ICR 73. But even if it did, the second period of conciliation took place between 9 and 12 February 2024, so the “cut off date” for time limits purposes would have been 26 December 2023. On even the most generous view of the claimant’s case, i.e. even if the refusal of his grievance appeal in November 2023 could be said to have been part of the “misuse of the disciplinary process”, then last of the detriments happened well before that cut off date. The claimant’s continuing dissatisfaction with the decision after that date cannot be said to constitute an ongoing state of affairs. We do not accept the submission made on behalf of the claimant that the continuing threat of dismissal under the other dismissals policy assists him here. It may be that that was an ongoing state of affairs at the time of his dismissal, but that was plainly not part of the disciplinary process – the latest detriment as set out in the list of issues at 5.8.2 refers specifically to paragraphs in the particulars of claim which relate to the disciplinary process and the appeal against the disciplinary outcome. The complaint is out of time. The claimant had access to legal advice well before the cut off date and simply, in our judgment, presented no reason why it would not have been practicable to have presented the complaint in time.[221]So far as the discrimination complaints are concerned, again given our findings above there is strictly no need to consider the time limits point, but we would have accepted that is was just and equitable to extend time limits given that the issues were under consideration as part of the (in time) unfair dismissal complaint and there could be no material prejudice to the respondent in considering them also as part of another cause of action. Miscellaneous points[222]There was a dispute between the parties about whether, in the event of us making factual findings which were favourable to the claimant on Issue 3.2.17, we could properly find that the claimant had been automatically unfairly dismissed because of whistleblowing. The respondent’s case was that that point had not been specifically pleaded (and was only included in the List of Issues in the context of “ordinary” unfair dismissal) and so such a finding would not be appropriate. The claimant disagreed with that analysis. In the event, given the factual findings we have made, there is no need for us to decide the point, since there is no question of us concluding that the sole or principal reason for the claimant’s dismissal was because he had made protected disclosures.[223]EJ Dick will shortly issue Orders relating to preparation for a remedy hearing, which will include an invitation to the parties to agree a calculation for the amount deducted from the claimant’s wages on the basis of the majority’s decision on the wages claim.[224]Finaly, EJ Dick apologises to the parties for the time taken to produce this judgment and reasons. The delay was due to a combination of pressure of other work and annual leave. Approved by: