Mr D Benton v The CGM Group (East Anglia) Ltd: 3312708/2020

EMPLOYMENT TRIBUNALS

Case No 3312708/2020

Between

Mr D BentonClaimant

The CGM Group (East Anglia) LtdRespondent

Before

Employment Judge Bloom

Miss S Bewley (instructed by Counsel) for claimant

Mr D Frame (instructed by Solicitor) for respondent

Date 3 May 2023

REASONS

[1]At this open Preliminary Hearing the Claimant was represented by Miss Bewley of Counsel. The Respondents were represented by their Solicitor, Mr Frame.

[2]I had before me the pleadings in the case, i.e. the ET1 and the ET3. I also had a Bundle of Documents relevant to the issues to be determined at the Preliminary Hearing consisting of 131 pages. There was also a small 8 page Supplemental Bundle. The proceedings were conducted using the CVP (Cloud Video Platform) method. All parties therefore attended remotely. In addition to their representatives the Claimant attended in person and Mr Graham Masters an employee of the Respondent also attended. Neither gave nor were they required to give evidence. I did hear evidence on affirmation from Mr Frame.

[3]The two issues to be determined at the open Preliminary Hearing were the following:- 1) The Respondent’s application to extend time to submit its Response; and 2) To determine the Claimant’s employment / worker status.

[4]It was agreed that the first issue to be determined would be the Respondent’s application to extend time to submit its Response to the Claim.

[5]The Claimant’s Claim was presented to the Employment Tribunal on 29 September 2020. The last day for the submission of any Response to the Claim was 23 December 2020. Prior to the presentation of the Claim the Claimant through his solicitors had engaged in correspondence with the Respondent regarding issues surrounding and following the Respondent’s decision to terminate its “engagement” with the Claimant on or around 2 July 2020. I purposely do not make any reference here to “termination of employment” because the issue of the Claimant’s “employment” still has to be determined.

[6]On 17 September 2020 the Respondent submitted an email to the Claimant’s Solicitor confirming that they had instructed Fosters Solicitors of Norwich to act on their behalf. Mr Frame is a Senior Associate with that firm. He is a Solicitor. He joined the firm in 2018. He qualified as a Solicitor in 2011. Mr Frame gave frank and honest evidence to the Tribunal. He accepts he specialises in employment law and has done so since he qualified. He accepted that his firm knew about the potential of litigation around the 17 September 2020 (page 106 of the Bundle). He received instructions from the Respondent to submit its Response to the Claim on 5 December 2020. He knew about the background before doing so. He prepared various drafts of the Response of which the final version was sent to his client on 12 December 2020. Mr Frame recognises before me and recognised at the time that he was aware of the deadline to submit the Response on or before 23 December 2020.

[7]Mr Frame informed me that he attended before an Employment Tribunal on 15 December 2020 conducting another case on behalf of a client. That case was adjourned and continued on 18 December 2020 and concluded at about 3:00 p.m. that afternoon.

[8]On 18 December 2020 (a Friday) Mr Frame received final instructions from the Respondent. The final draft of the content of the Response was agreed. Mr Frame’s firm closed for business at lunchtime on Wednesday 23 December 2020 for the Christmas/New Year break and returned to business on 4 January 2021.

[9]Mr Frame told me that he did not recall seeing the Respondent’s e-mail dated 18 December 2020 confirming the final version of the Response and did not check his e-mails on Saturday 19 or Sunday 20 December 2020. He was on leave on Monday 21 December 2020.

[10]He accepts that he saw the e-mail from his client before 10:00 a.m. on Tuesday 22 December 2020. The final draft of the Response was prepared by himself by the conclusion of that day, i.e. Tuesday 22 December 2020.

[11]Mr Frame did not submit the Response to the Employment Tribunal that afternoon. He fully conceded it was his fault for not doing so. He told me that he overlooked submitting the Response due to pressure of other work. He accepts he was in his office the morning of Wednesday 23 December 2020 and again failed to submit the Response to the Employment Tribunal.

[12]Mr Frame has a computer diary which would send automatic reminders to him of time limits to e.g. submit documents to Tribunals.

[13]He returned to his office on 4 January 2021. On either 6 or 7 January 2021 he checked the file. He then realised that the Response had not been submitted by 23 December 2020. He e-mailed the Tribunal on 7 January 2021 (pages 46 – 47 of the Bundle). The e-mail contained an application to the Tribunal under Rule 20 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 requesting an extension of time to submit the Response. The e-mail contained an admission by Mr Frame that he had failed to submit the Response on time as a result of his own error. Mr Frame’s omissions were further compounded by the fact that he did not copy that e-mail, i.e. the application to extend time to the Claimant’s solicitors. This omission was a breach of Rule 92 of the 2013 Regulations. Mr Frame again accepted that omission was due to his own error. In the meantime, the Claimant’s Solicitors had been chasing the Employment Tribunal to obtain an update regarding progress of the Claimant’s Claim. They subsequently became aware of the 7 January 2021 application. They quite properly pointed out to the Employment Tribunal and to Mr Frame that they had not received that application. To rectify his error, Mr Frame renewed his application on 11 February 2021 and on this occasion he copied in the Claimant’s solicitors (pages 48 – 50 of the Bundle). Mr Frame informed me that it did not occur to him at the time he first presented his application on 7 January 2021 to copy in the Claimant’s solicitors and again failed to check his file to ensure that he had done so.

[14]On or around 11 February 2021 Mr Frame informed me that he advised his supervising partner of his errors. He was unaware when giving evidence before me as to whether or not his firm of Solicitors had reported the issue to their insurers. Mr Frame concluded his evidence to me by saying – “it was completely my fault. I can only apologise”.

[15]Mr Frame was cross-examined by Miss Bewley and Miss Bewley and Mr Frame subsequently made closing submissions to me. Miss Bewley submitted that if I granted the application in these circumstances the Claimant would suffer more prejudice than the Respondent. The case had been going on now for almost two years. She further submitted that the content of the draft Response failed to deal with the merits of the Respondent’s case with regard to the Claimant’s submission that he was an “employee”; a “worker” and had made a protected disclosure, i.e. that he was “a whistle-blower”. The application provided no valid reason for the delay in presenting the Response. In his final submission to me Mr Frame said that he “held his hands up”. He did not try to hide behind his negligence. He had had a bad year and was overworked. He submitted that by granting the application the Claimant would suffer no prejudice but his client would do so.

[16]In reaching my Judgment I have considered fully the provisions of Rule 20 and Rule 21 Schedule 1 of the 2013 Regulations. I have a discretion as to whether or not to grant the application. Rule 20 is silent as to the test I should apply when considering the application. However, I take note of Rule 2, i.e. the overriding objective to deal with cases fairly and justly. I have also considered the Employment Appeal Tribunal’s Judgment in Kwik Save Stores Limited v Swain

(1997) ICR 49

. That Judgment reminds me of the importance of when exercising a discretion to take into account all relevant factors, weighing and balancing them one against the other and reaching a conclusion which is objectively justified on the grounds of reason and justice. I have considered the Respondent’s explanation as to why the application is required. I have considered the issue of prejudice to either party depending on whether or not the application is granted or refused and finally I have considered the merits of the defence.

[17]As far as merits of the defence are concerned, as I have already noted, the Respondent’s draft Response makes no reference to any admission or otherwise that the Claimant was engaged as a “worker” with the Respondent for the purposes of Section 230 (3) Employment Rights Act 1996. It deals solely with the issue of the Claimant’s alleged employment status. Determination of whether or not the Claimant was a “worker” is central to the Claim and the Response fails to deal with that important issue. As far as prejudice is concerned, in my Judgment the Respondent suffers no prejudice if the application is refused. Mr Frame has frankly admitted that the reason the Response was not presented on time was solely as a result of his negligence. That negligence was compounded by the fact that the application dated 7 January 2021 had to be renewed again on 11 February 2021. Any loss that may or may not be suffered by the Respondent in these proceedings will clearly be recoverable by pursuing a Claim against Mr Frame’s firm/their professional indemnity insurers. The Claimant will be prejudiced if the application is granted. He will continue to expend further costs on issues such as his worker status/employee status and the merits of his Claim having to be determined at future Hearings. The delay in the presentation of the Respondent’s Response is a serious one and is solely down to Mr Frame’s negligence.

[18]Exercising my discretion therefore and taking into account all the above factors, the application made by the Respondent to extend the period of time in which to present its Response is refused.

[19]Having given Judgment on the above matter, Mr Frame took further instructions from his client. Having done so, he informed me that the Respondent now conceded that the Claimant was “a worker” pursuant to the provisions of Section 230 (3) Employment Rights Act 1996. They do not concede that the Claimant was “an employee” and that issue must now be determined at a further Hearing. There was insufficient time at the conclusion of this Preliminary Hearing to deal with the whole of that matter.

[20]I informed Mr Frame and therefore the Respondent that their ability to continue to participate in these proceedings shall be limited only to making appropriate representations if and when the issue of Remedy becomes relevant and/or to respond to any future application that the Claimant may make in respect of either a costs application against the Respondent themselves or a wasted Costs Order against Mr Frame’s firm. For the avoidance of any doubt, they are not permitted to participate in any further way.

[21]The Claimant’s Claim shall proceed to a Substantive Hearing. At the commencement of the Substantive Hearing the issue of whether or not the Claimant was “an employee” shall be determined and thereafter the merits of his Claim. I make below appropriate Case Management Orders. ORDERS Made pursuant to the Employment Tribunal Rules of Procedure 1. List of Issues 1.1 The Claimant’s representative shall submit to the Employment Tribunal and to the Respondent’s representative a full List of Issues to be determined at the Substantive Hearing and they shall do so on or before 29 July 2022. 2. Schedule of Loss 2.1 The Claimant shall submit a Schedule of Loss together with all supporting documents to the Employment Tribunal and to the Respondent’s representative, on or before 29 July 2022. 3. Bundle of Documents 3.1 The Claimant’s representative shall prepare a Joint Bundle of Documents to be used at the Substantive Hearing. They shall ensure that four copies are brought to that Hearing. The Bundle shall be prepared and copied to the Respondent’s representative, on or before 16 September 2022. 4. Witness Statement 4.1 The Claimant shall provide a Witness Statement, a copy of which shall be submitted to the Employment Tribunal and to the Respondent’s representative, on or before 7 October 2022. 5. Final Hearing5.1 The case shall be listed to be heard at the Cambridge Employment Tribunal, Cambridge County Court, 197 East Road, Cambridge, CB1 1BA. It shall be conducted in person. The Hearing will take place before an Employment Judge sitting with two Members. It is a detriment Claim as well as a Claim relevant to solely a dismissal. The Hearing shall take place on dates to be notified to the part5ies by the Employment Tribunal.

5.2 The parties shall have 14 days in which to submit any dates to avoid to the Employment Tribunal. 6. Costs Application 6.1 Any application for costs arising from this Preliminary Hearing is reserved to the Substantive Hearing. 7. Other Matters 7,1 The above orders were made and explained to the parties at the Preliminary Hearing. All orders must be complied with even if this written record of the hearing is received after the date for compliance has passed. 7.2 Anyone affected by any of these orders may apply for it to be varied, suspended or set aside. Any further applications should be made on receipt of these orders or as soon as possible. 7.3 The parties may by agreement vary the dates specified in any order by up to 14 days without the Tribunal’s permission except that no variation may be agreed where that might affect the Hearing date. The Tribunal must be told about any agreed variation before it comes into effect. 7.4

[22]The report of 6 May 2020 was plainly a disclosure to the Claimant’s employer and protected as such pursuant to s.43A and s.43C of the Employment Rights Act 1996. In the case of the disclosure to Michael Holmes of the Environment Agency, the Agency is a prescribed person for the purposes of s.43F of the Employment Rights Act 1996. The Claimant has satisfied us both that the relevant failure on 11 March 2020 fell within the description of matters in respect of which the Agency is prescribed, namely an act which had a potential effect on the environment (in this case the bank being worked on), and that the information and allegation contained in it, namely that the PTO roller and shaft were faulty and accordingly dangerous, was substantially true (s.43F(1)(b) of the Employment Rights Act 1996). We accept the Claimant’s evidence in this regard at paragraphs 10 and 11 of his supplemental witness statement. As we say, he is an fundamentally honest individual. He is also a reasonably experienced and knowledgeable tractor operative. He did not just suspect that something was amiss, he was certain that the relevant machine was not fit for purpose and would not meet Environment Agency standards, and accordingly that the information and allegations disclosed were substantially true.

[23]Having satisfied us that he made protected disclosures, the question is whether the Claimant was subjected to detriments for having made those disclosures. Detriments

[24]The Claimant claims that he was subjected to the following detriments: that he was not paid after March 2020, that he was suspended by the Respondent and thereafter dismissed. His complaints in that regard are well-founded. He was not paid by the Respondent after March 2020, he was sent home and effectively suspended between 4 May 2020 and 2 July 2020 and, as we have already found, he was dismissed by the Respondent on 2 July 2020.

[25]Section 48(2) of the Employment Rights Act 1996 provides that it is for the Respondent to show the grounds on which any act, or failure to act, was done. In terms of causation, a complaint under s.48 of the 1996 Act will succeed if a protected disclosure has materially influenced the respondent’s treatment of a claimant. It need not be the sole or principal reason why the claimant was subjected to detriment(s).

[26]There is no explanation from the Respondent for why it treated the Claimant as it did. Employment Judge Bloom has determined that it should be precluded from providing that explanation within these proceedings. Nevertheless, as we have said already, fairness and justice requires that we make a determination and that we do so objectively and having regard to all the available evidence, even if this does not include witness statements from the Respondent.

[27]As to the reasons why the Claimant was not paid, there is no explanation for the Respondent’s ongoing failure over a period of what is now three years to pay the Claimant for his work. That is particularly telling against the Respondent. Ms Bewley makes a good point when she observes that the amount the Respondent claims it is owed by the Claimant is £1,801.40. That is significantly less than the amount of the Claimant’s outstanding April invoice for £3,373.20. Even if one disregards the VAT element, the amount in question is £2,811.00, just over a thousand pounds more than the Respondent claims to be owed by the Claimant. Inexplicably, even that smaller balance has not been settled by the Respondent. Its failure to do so gives rise to an adverse inference that the reason why it has withheld payment to the Claimant is that he made one or more protected disclosures. The Respondent was afforded an opportunity to provide an explanation for its actions, since the Claimant’s solicitors wrote to it on 12 August 2020. Other than having asserted in response (page 152) that it was owed £1,801.40 by the Claimant in respect of the cost of damage caused to a tractor by the Claimant (damage that has never been evidenced), there has been no further explanation for why monies have been withheld or any balance not paid.

[28]As to the reasons why the Claimant was suspended, over a period of nearly two months the Claimant sought an explanation from the Respondent as to what was happening. He endeavoured to contact the Respondent on numerous occasions, we find at least twice a week. We accept the Claimant’s evidence that he left voice messages and that on one occasion, when he managed to get hold of Mr Dockray, Mr Dockray told him that Mr Marsh was busy but that he should call back in 10 minutes. When he called back as instructed, his call went through to Mr Marsh’s voicemail. We find that Mr Marsh deliberately avoided taking his call and thereafter made a conscious decision not to return his call. He was ‘playing games’ with the Claimant and content to leave him in limbo.

[29]There has been no explanation from the Respondent as to why it suspended the Claimant for nearly two months. His suspension was never confirmed in writing and there is no evidence of any form of investigation which might have warranted his ongoing suspension, particularly once the Claimant filed his report/statement on 6 May 2020 as instructed. We are unable to identify any innocent explanation for his suspension. The reasonable inference is that he was suspended and continued to be suspended in response to his protected disclosures.

[30]The fact that a claimant can pursue a complaint under s.103A of the Employment Rights Act 1996 in respect of their dismissal does not preclude them from also pursuing a detriment claim under s.47B of the 1996 Act in respect of the same matter (Timis v Osipov

[2018] EWCA Civ 2321

[31]There is no explanation as to why the Claimant was dismissed from the Respondent’s employment. We have already referred to the fact that the Claimant’s solicitors wrote to the Respondent on 12 August 2020. In numbered paragraph 3 of their letter they asserted that the Claimant had been automatically unfairly dismissed, alternatively subjected to detrimental treatment, as a result of his 6 May 2020 protected disclosure (page 150A-C). The Respondent’s Director of Operations, Mr Glover responded to the letter on 25 August 2020. Although the letter addressed the Claimant’s employment status, it did not address his dismissal or how or why the working relationship had come to an end. Again, under s.48(2) ERA 1996, it is the Respondent’s burden to show the ground on which it dismissed the Claimant. It may have been precluded from providing that explanation within these proceedings, but given the opportunity to do so in the course of pre-action correspondence, it failed to do so.

[32]For these reasons, the Claimant’s detriment complaints succeed. We are satisfied that his protected disclosures were a material factor in the Respondent’s treatment of him. Unlawful Deductions from Wages

[33]As we shall return to, the Claimant was never issued with a written statement of terms and conditions of employment or other worker’s contract, save for basic job descriptions for assignments. In which case, in order for the Respondent to lawfully make deductions from the Claimant’s wages, for example in respect of the costs of the damage he allegedly caused to its tractor, he must have consented in writing to any such deductions being made. There is no evidence of such consent having been given. Holiday Pay

[34]In terms of holiday pay (Issue 4.2(1)), the Respondent treated the Claimant as a self-employed contractor. During the time the Claimant worked for it, it never recognised that he was a worker with statutory holiday rights. He was plainly entitled to payment in lieu of holiday at the point at which his worker status was conceded by the Respondent, yet no steps have been taken by the Respondent to settle this aspect of his claim. The Claimant’s complaint succeeds. The Remedy to which he is entitled shall be dealt with separately following further evidence and submissions as to how his leave entitlement and any payment in lieu is to be calculated. Unpaid Invoice

[35]The Respondent has failed to settle the Claimant’s April 2020 invoice. It has never been suggested by the Respondent that the hours in question were not worked by the Claimant. In our judgement, there is no lawful basis for the Respondent to either withhold or to make any deductions from his wages in that regard (Issue 4.2(2)). As we have noted already, the Claimant was not issued with written particulars of employment that authorised deductions from his wages. He never consented to any monies being withheld, nor did he sign any agreement authorising deductions to be made. We have reviewed the provisions of the Respondent’s Damages Policy in the Hearing Bundle and note, subject to certain procedural safeguards under which the Respondent is required to produce evidence of any damage allegedly caused, that the Respondent may deduct the sum of £150 plus 10% of the amount of any such damage from the wages of the employee in question. The alleged value of any damage caused by the Claimant is unevidenced. Be that as it may, the Damages Policy did not form part of the Claimant’s contract of employment. He did not otherwise consent to his April 2020 wages being withheld and did not sign any other agreement to signify his agreement or consent to deductions being made from his wages. He is entitled to payment of his April 2020 invoice i.e, his April 2020 wages, without deduction. Unpaid wages

[36]For all the same reasons, the Claimant is also entitled to be paid for the further hours that he worked on 1 and 4 May 2020 (Issue 4.2(3)). Thereafter, throughout the period 5 May to 2 July 2020, the Claimant remained ready, willing and able to work. Accordingly, he is also entitled to be paid his wages for that period. Pension auto enrolment

[37]The Tribunal has no jurisdiction in respect of the Respondent’s alleged failure to auto-enrol the Claimant into its pension and/or to make employer pension contributions (Issue 4.2(4)). Working Time Regulations 1998

[38]Regulation 30(1) of the Working Time Regulations 1998 sets out those matters in respect of which a worker may present a complaint to an Employment Tribunal. We have no jurisdiction to determine any complaints that the Respondent contravened regulations 4 and 8 of the 1998 Regulations (Issues 5.1 to 5.4).

[39]The Claimant complains that he did not receive uninterrupted daily rest periods of not less than 11 consecutive hours in each 24-hour period (Issue 5.5). The last breach complained of in paragraph 25 of the Claimant’s witness statement is said to have occurred on 19 March 2020. Accordingly, his complaint has been brought over three months out of time. By 12 August 2020, if not before, the Claimant had instructed solicitors who wrote to the Respondent on his behalf, asserting amongst other things that he had been denied rest periods and rest breaks. Yet he delayed a further seven weeks before presenting a claim to the Employment Tribunals in respect of these matters. The Claimant has the burden of proving, on the balance of probabilities, that it was not reasonably practicable for him to present his claim in time, but has not put forward any evidence in the matter. He has failed to discharge his burden in the matter; the Tribunal has no jurisdiction to determine his complaint.

[40]As regards the Claimant’s complaint that he did not receive rest breaks in accordance with regulation 12 of the 1998 Regulations, having regard to paragraph 20 of the Claimant’s Witness Statement, the last breach complained of is said to have occured on 1 December 2019. For the same reasons as above, the complaint has been brought out of time and the Claimant has failed to identify why, if it is the case, he says it was not reasonably practicable for him to present the claim in time. Age Discrimination

[41]In its initial letter of 12 August 2020 to the Respondent, the Claimant’s solicitors asserted on his behalf that his suspension and dismissal were age discrimination. At the time of the events in question the Claimant was 63 years old. We accept that the Respondent knew how old the Claimant was when it dismissed him. The Respondent was also aware that the Claimant was 61 or 62 years of age when it recruited him, which raises the question in our minds why, if his age was not a barrier to him being recruited to work for the Respondent, it subsequently became a relevant factor in the Respondent’s thinking little more than a year later. It is obviously not determinative of the matter, since an employer might, for example recruit an older worker in the belief that they will be more malleable and less likely to assert their rights. However, and notwithstanding Ms Bewley’s belated reference to assumptions that older workers are not as valuable because they are unlikely to continue working for much longer or are likely to have health conditions, that is not the basis upon which the claim has been brought.

[42]The Claimant’s solicitors’ letter of 12 August 2020 contains nothing more than a bare assertion of age discrimination. No facts or other circumstances are referred to in support of any inference of age discrimination. The same observation can be made in relation to paragraph 22 of the Grounds of Claim. Indeed, the pleaded assertion that the Respondent did not wish to have older employees working for it is at odds with its decision to recruit the Claimant little more than a year earlier and, indeed, seems not to have been pursued by Ms Bewley in closing. There is no obvious further explanation in the Claimant’s initial 19-page witness statement as to why the two specific matters complained of, namely his suspension and subsequent dismissal, might have been acts of age discrimination. Instead, to the extent that the Claimant has explained the basis of his belief that he was discriminated against, the explanation is to be found in paragraph 20 of his supplemental witness statement. Even then, his evidence amounts to little more than a bare assertion of discrimination. He suggests that, “almost exactly the same thing happened to Bill Stevens two years earlier but I presume that he didn’t make a disclosure and is younger than me, and that is why he wasn’t dismissed but I was”. He does not elaborate further.

[43]S.13 of the Equality Act 2010 (“EqA”) provides, 13. Direct Discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[44]In considering the direct discrimination complaints we focus on the reasons why the Respondent acted, or failed to act, as it did. That is because, other than in cases of obvious discrimination (this is not such a case), the Tribunal will want to consider the mental processes of the alleged discriminator(s): Nagarajan v London Regional Transport

[1999] ICR 877

. In order to succeed in any of his complaints the Claimant must do more than simply establish that he has a protected characteristic and was treated unfavourably: Madarassy v Nomura International plc

[2007] IRLR 246

. There must be facts from which we could conclude, in the absence of an adequate explanation, that the Claimant was discriminated against. This reflects the statutory burden of proof in section 136 of the Equality Act 2010, but also long established legal guidance, including by the Court of Appeal in Igen v Wong

[2005] ICR 931

. It has been said that a Claimant must establish something “more” than unfavourable treatment and a protected characteristic, even if that something more need not be a great deal more: Sedley LJ in Deman v Commission for Equality and Human Rights

[2010] EWCA Civ 1279

[45]The grounds of any treatment often have to be deduced, or inferred, from the surrounding circumstances and in order to justify an inference the Tribunal must first make findings of primary fact identifying ‘something more’ from which the inference could properly be drawn. This is generally done by a Claimant placing before the Tribunal evidential material from which an inference can be drawn that they were treated less favourably than they would have been treated if they had not had the relevant protected characteristic: Shamoon v RUC

[2003] ICR337

. ‘Comparators’, provide evidential material. But ultimately they are no more than tools which may or may not justify an inference of discrimination on the relevant protected ground. The usefulness of any comparator will, in any particular case, depend upon the extent to which the comparator’s circumstances are the same as the Claimant’s. The more significant the difference or differences the less cogent will be the case for drawing an inference.

[46]In the absence of an actual comparator whose treatment can be contrasted with the Claimant’s, the Tribunal can have regard to how the employer would have treated a hypothetical comparator. Otherwise some other material must be identified that is capable of supporting the requisite inference of discrimination. This may include a relevant statutory code of practice. Discriminatory comments made by the alleged discriminator about the Claimant might, in some cases, suffice. There were no such comments in this case.

[47]Unconvincing denials of a discriminatory intent given by the alleged discriminator, coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision, might in some case suffice. Discrimination may be inferred if there is no explanation for unreasonable treatment. This is not an inference from unreasonable treatment itself but from the absence of any explanation for it.

[48]It is only once a prima facie case is established that the burden of proof moves to the Respondent to prove that it has not committed any act of unlawful discrimination, so that the absence of an adequate explanation of the differential treatment becomes relevant: Madarassy v Nomura

[2007] EWCA Civ 33

[49]In our judgement, the Claimant has failed to establish the existence of something more from which we could infer that age was the reason for his suspension and subsequent dismissal. The evidence regarding Bill Stevens is so lacking in detail that we cannot sensibly embark upon any comparison in terms of how they were treated and whether their respective circumstances were sufficiently similar such as to support an inference being made. Ms Bewley’s efforts to identify grounds from which inferences might be drawn runs into some difficulty given how the case is pleaded and the glaring lack of evidence on the issue. Taking a step back and having asked ourselves why the Respondent treated the Claimant as it did, for the reasons we have already identified, the reason why the Claimant was suspended and then dismissed was because he made protected disclosures. It had nothing whatsoever to do with his age.

[50]Section 26 of the Equality Act 2010 (“EqA”) provides, (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic; and (b) the conduct has the purpose or effect of- (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[51]In Richmond Pharmacology v Dhaliwal

[2009] ICR724

it was observed, “A Respondent should not be held liable merely because his conduct has had the effect of producing a prescribed consequence: it should be reasonable that that consequence has occurred… overall the criterion is objective because what the Tribunal is required to consider is whether, if the Claimant has experienced those feelings or perceptions, and it was reasonable for her to do so. Plus if, for example the Tribunal believes that the Claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for the Claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the Tribunal as to what would important for it to have regard to all the relevant circumstances including the context of the conduct in question. One question that may be material is whether it should reasonably be apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the prescribed consequence): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt… (22) …dignity is not necessarily violated by what was said or done which was trivial or transitory, which should have been clear but any offence was unintended. But it is very important that employers and Tribunals are sensitive to the hurt which can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[52]The Claimant asserts that his suspension and dismissal were acts of age harassment. Whilst the Respondent’s treatment of him was undoubtedly unwanted, for all the same reasons that his direct discrimination complaints fail, we conclude that his suspension and dismissal were unrelated to his age. His complaints in that regard are not well-founded. Automatic Unfair Dismissal

[53]The Claimant had less than two years’ continuous service with the Respondent. Accordingly, the burden of establishing the reason for dismissal does not rest with the Respondent, rather it is for the Claimant to establish primary facts from which it might be inferred that he was dismissed because he made protected disclosures.

[54]Whereas, in order to succeed in a whistleblower detriment complaint under s.47B of the Employment Rights Act 1996, the protected disclosure(s) need only be found to have materially influenced the respondent’s treatment of its worker, a claim of automatically unfair dismissal under s.103A will only succeed if the protected disclosure was the reason or principal reason for dismissal. The question then is whether the Claimant has established primary facts from which we could infer that his protected disclosures were the reason or principal reason for his dismissal. It is not sufficient in this regard that we might infer it was a factor in his dismissal, or that it could have been a reason for his dismissal. We have to be satisfied that there are grounds for inferring that any protected disclosures were the sole or principal reason for dismissal.

[55]When Mr Dockray spoke to the Claimant on 4 May 2020 his stated reason for sending the Claimant home was that a piece of machinery had been damaged. We find that Mr Dockray had first spoken with Mr Marsh about the matter. We find that this issue continued to inform Mr Marsh’s thinking on 2 July 2020 when he dismissed the Claimant. He told the Claimant, “I want my money”, a clear reference we find to the damage he believed the Claimant had caused to the tractor. Whilst the Claimant’s protected disclosures had undoubtedly been operating in his mind over the preceding period, it is equally clear from his rather impetuous comments that in that moment in time he had in mind that the Claimant had damaged the Respondent’s property/equipment, that he needed to recompense the Respondent for that damage and that he was “finished” because he dared to challenge Mr Marsh in the matter. For these reasons we are not satisfied that the Claimant’s protected disclosures were the sole or principal reason why he was dismissed on 2 July 2020 even if they were a material factor in the Respondent’s treatment of him. Given that the Claimant has succeeded in his whistleblowing detriment claim, it will not make any difference in terms of his remedy. Wrongful Dismissal

[56]The Respondent has not established that it had grounds to summarily dismiss the Claimant from its employment. The Respondent has the burden of proof in the matter. Even if it might be said that the Claimant was negligent on 4 May 2020 (as to which we make no findings), it has not been suggested by the Respondent that he was guilty of gross negligence. The Respondent’s Damages Policy evidences that it is recognised by the Respondent that accidents will occur from time to time and that whilst employees may find themselves with some financial liability in respect of damage caused by their negligence, the accidents of themselves are not grounds for summary termination of employment. Written Statement of Particulars of Employment

[57]The Claimant was never issued with a written statement of particulars of employment in compliance with the requirements of the Employment Rights Act 1996, no doubt because he was considered by it to be selfemployed. The amount of any award in respect of the Respondent’s breach in that regard is a Remedy issue. REMEDY JUDGMENT

[1]By agreement of the parties, the sum ordered by the Tribunal on 28 April 2023 to be paid by the Respondent to the Claimant in respect of unauthorised deductions from his wages is amended from £9,789.74 to £10,900.44 (net of tax and national insurance contributions in the case of the unpaid wages of £5,347.15). The amended sum ordered to be paid is inclusive of a 25% uplift pursuant to s.207A of the Trade Union & Labour Relations (Consolidation) Act 1992.

[2]The Respondent shall pay the Claimant the following additional sums (uplifted as applicable by 25% pursuant to s.207A of the Trade Union & Labour Relations (Consolidation) Act 1992):a. The sum of £5,584.23 in respect of its failure to pay the Claimant his holiday entitlement;

b. Damages of £754.65 in respect of the Respondent’s actions in dismissing the Claimant in breach of contract in respect of notice;

c. Compensation of £31,029.22 in respect of his complaint that he was subjected to detriments in contravention of s.47B of the Employment Rights Act 1996; and

d. Compensation of £23,102.05 for injury to feelings. Case Number: 3312708/2020

[3]Pursuant to s.38 of the Employment Act 2002, the amount of the award to the Claimant is increased by £2,897.84.

[4]The award to the Claimant shall be grossed up by £20,570.07 to reflect the Claimant’s liability for tax on the award.

[5]The total amount of the award to the Claimant is therefore £94,838.50.