Mr L T Breda de Moraes and Mr G Munro-Henworth v Cambridge City Council: 3312985/2021 and 3312986/2021
EMPLOYMENT TRIBUNALS
Case No 3312985/2021, 3312986/2021
Between
Mr L T Breda de Moraes and Mr G Munro-HenworthClaimantCambridge City CouncilRespondent
Before
Employment Judge Tynan
Members
Mr K Rose and Mr B SmithMr M Edmonds (instructed by Counsel) for claimantMr Bownes (instructed by Solicitor) for respondentDate 28 May 2025
JUDGMENT
The Claimants’ claims are not well founded and are dismissed. Approved by:
REASONS
[1]The Claimants’ claim that they were unfairly dismissed from the Respondent’s employment. At the material times they worked for the Respondent as Markets and Street Trading Officers (in Mr MunroHenworth’s case, on secondment from his substantive role). Mr Breda de Moraes was dismissed on grounds of alleged incapability on 3 October 2022, whereas Mr Munro-Henworth resigned his employment with immediate effect on 14 March 2022 and claims to have been constructively dismissed. Both Claimants claim to have made protected disclosures and to have been subjected to various detriments and ultimately dismissed because they made those disclosures.[2]The case was heard over two periods in 2024 and 2025, with the planned resumed hearing in January 2025 having to be further postponed to April 2025 due to unforeseen circumstances. The Judgment was then further delayed as Mr Edmonds fell ill during April’s Hearing. Evidence[3]The Claimants gave evidence and we heard evidence on their behalf from Dr William Proud, Secretary of the Cambridge Market Traders Association (“CMTA”) at the time of the events in question, and also from Gemma Bastick whose parents have a greengrocer’s stall on the market on which she has worked on and off over many years.[4]On behalf of the Respondent, we heard evidence from the following: 4.1. Deborah Kaye, formally Head of Community Services at the Council – Ms Kaye chaired Mr Munro-Henworth’s disciplinary appeal; 4.2. Jonathan Tully, Head of Internal Audit at the Council – Mr Tully was appointed to hear Mr Munro-Henworth’s appeal against the outcome of his three grievances at the first appeal stage, together with the Claimants’ joint appeal against the outcome of their joint grievance; 4.3. David Prinsep, formally Assistant Director for ASSET at the Council and prior to that Head of Property Services – Mr Prinsep determined the Claimants’ appeals against the outcome of their joint grievance; 4.4. Dr Jane Wilson, the Council’s Chief Operating Officer – Dr Wilson took the decision that Mr Breda de Moraes should be dismissed from the Respondent’s employment; and 4.5. Susan Caranese, Strategic HR Manager – Ms Caranese was involved in managing Mr Breda de Moraes’ sickness absence, though addresses certain other issues in her witness statement.[5]Mr Bownes submitted an opening note for the hearing. He makes various pertinent observations in the first paragraph of his note, not least as to the Claimants’ failure to take on board Employment Judge Lewis’ observations regarding the initial pleadings being disproportionately long and insufficiently clear. Mr Munro-Henworth’s witness statement in particular is disproportionately long and has not always brought clarity to the issues.[6]It is particularly regrettable that we have been required to work with two hearing bundles running to some 2,641 and 2,667 pages respectively. As is too often the case with such voluminous bundles, in the course of the hearing we were referred to a more limited number of documents. We shall refer to the joint bundle as “the Bundle” and the second bundle prepared by the Claimants as “the Claimants’ Bundle”.[7]We start with some preliminary observations regarding the Claimants’ evidence. In Gestmin SGPS SA v Credit Suisse (UK) Ltd. & Anr. [2013] ECHC 3560 (Comm), Mr Justice Leggatt, now a Justice of the Supreme Court, made pertinent observations about the distorting effects of litigation on the reliability of oral evidence. He stressed the importance of contemporaneous documents when making findings of fact. He also highlighted the risk that past beliefs may be revised to make them more consistent with present beliefs. That may be the case even where a witness is endeavouring to provide a truthful and accurate account of events as they recall them.[8]In our collective experience, parties and witnesses always strive to provide a truthful account of the events they are being asked about. Mr Munro-Henworth and Mr Breda de Moraes are no exception. But this does not necessarily mean that their evidence can be relied upon. Even putting aside the potentially distorting effects of litigation, a person’s evidence may prove unreliable because, for example, it is contradicted by contemporaneous documents or because the person is endeavouring to recall events dating back some years, in respect of which they have only a limited recollection, or where their recollection or indeed their perception at the time may have been impacted by health issues or a range of other personal difficulties. These are all material considerations in this case, though there is also evidence that the Claimants have, perhaps subconsciously, revised their past beliefs so that they are more consistent with how they have come to see things.[9]The Claimants have each made lengthy witness statements. In the case of Mr Munro-Henworth, his witness statement extends to some 785 numbered paragraphs over 158 pages. That is exceptional for a case such as this. It is in the nature of a diary rather than fully focused on the specific issues that fall to be determined in the case and which, in spite of the involvement and efforts of four judges, remain undefined in many important respects. Whilst the Claimants’ witness statements might be said to be disproportionate in terms of their length, in the case of Mr Munro-Henworth we think that reflects some impaired ability on his part to fully focus on the issues, compounded by the fact that he has largely represented himself throughout the proceedings and seemingly taken the lead in terms of Mr Breda de Moraes’ claim. We have a firm sense of Mr Munro-Henworth failing at times to see the proverbial wood for the trees. Amongst other things, his witness statement fails to distinguish as between his and Mr Breda de Moraes’ claims and, more significantly, their evidence. The examples are too numerous to list in this judgment, but at paragraph 8 of his witness statement, for example, he refers to Mr Jones allegedly informing Mr Breda de Moraes that his contract would be extended for just one month. Whilst this is not something about which Mr Munro-Henworth has any direct knowledge, nevertheless he purports to give evidence about the matter, including that Mr Jones, was allegedly breaching Council policy and that it made Mr Munro-Henworth increasingly insecure and anxious about his own position. It is not evidence that has assisted us in our fact finding task, other than to reinforce comments made by Mr Munro-Henworth in response to questions from the Judge, namely that the emotional instability and dysregulation associated with his mental health condition means that he can be naïve at times and a people pleaser. In our view he has considerable difficulty separating his own experiences, interests and concerns from others’ and seems to take their cares upon himself and experience them almost as if they were his own. It has resulted in boundaries becoming significantly blurred, specifically Mr Munro-Henworth cannot separate his interests from those of Mr Breda de Moraes or of the market traders operating from the historic Market Square in Cambridge. This has extended to experiencing significant stress and other emotional dysregulation by reason of how he perceives they have been treated. For example, when Mr Breda de Moraes emailed Mr MunroHenworth on 23 April 2020 stating that his mental health had been impacted by Mr Jones, Mr Munro-Henworth states that this made him increasingly worried for his own mental wellbeing (see paragraph 21 of his witness statement). A meeting attended by Mr Breda de Moraes on 24 August 2020 is recounted by Munro-Henworth almost as if he had been in attendance (see paragraph 135 of his witness statement). Mr Breda de Moraes sent an email to himself on 27 August 2020 in which he described the meeting in question as a very good meeting, whereas notwithstanding he was not at the meeting it is described by Mr Munro-Henworth in more anxious terms, namely that it was “deeply concerning”. When Mr Breda de Moraes’ sickness absence was managed in accordance with the Council’s documented policy for managing such absences, Mr Munro-Henworth describes this as immoral and unlawful (paragraph 557 of his witness statement). As we shall come back to, it was neither, but it further illustrates the extent to which Mr Munro-Henworth has become emotionally invested in Mr Breda de Moraes’ case.[10]In the course of his evidence, Mr Munro-Henworth said more than once that his evidence may have been coloured by how he has come to see things. In the words of Mr Justice Leggatt, as he then was, we consider this is a case in which past events, recollections and beliefs have been revisited by Mr Munro-Henworth so that they are more consistent with and aligned to how he has come to see things. That has extended to discounting information or evidence that may be inconsistent with his current views. Three emails illustrate the point. His email of 1 October 2020 to Mr Carré suggests that he then perceived workplace tensions that had arisen between Mr Jones and Mr Breda de Moraes as perhaps ‘six of one and half a dozen of the other’, rather than laying the issues entirely at Mr Jones’ door as he now does. The third paragraph of the second page of Mr Munro-Henworth’s email to Don Blair, Suzanne Hemingway and Joel Carré dated 4 January 2021 (page 1,179 of the Claimants’ Bundle) evidences that at a critical juncture he was able to articulate a more balanced view as to the closure of the central Cambridge market than he now puts forward. Finally, in paragraph 153 of his witness statement, Mr Munro-Henworth alleges that competency and behaviour posters were torn down by Mr Jones on 7 September 2020. However, he was taken by Mr Bownes to an email he sent on 9 September 2020 in which he referred to the posters as having been removed, rather than torn down, and that he did not know whether Mr Breda de Moraes or Mr Jones might have been responsible for this, if indeed it was either of them. He initially stood by his witness statement, before seeking to explain that he was exhausted and had prepared his witness statement without help. Either way, when faced with evidence that undermined what he had written in his witness statement he was unwilling to deviate from his statement and concede the point. As we shall come back to, this confirmation or reattribution bias comes into particularly sharp focus when we consider the Claimants’ assertions that there was alleged financial fraud on the part of Mr Jones in the administration of refreshment stall licences.[11]In summary, Mr Munro-Henworth’s witness statement highlights the distorting effects of this litigation, so that we approach his evidence with some degree of caution, even if we accept that Mr Munro-Henworth has essentially endeavoured to tell the truth. Above all, his witness statement confirms that he is and has been significantly unwell. In our judgement his long standing mental health issues left him ill equipped to navigate conflict within his workplace or the wider market community and have materially influenced his ongoing perception of events.[12]Mr Breda de Moraes’ evidence is similarly tainted by confirmation or reattribution bias. There is a ready medical explanation for this; he has been diagnosed with Post Traumatic Embitterment Disorder (PTED). The condition is referred to in an occupational health report prepared by Dr Adeodu in August 2021 in which she described Mr Breda de Moraes as preoccupied with building his case against his manager and that he wanted the manager to be punished (page 2207 of the Bundle). Dr Adeodu’s advice in 2021 was that PTED symptoms are often chronic in nature and resistant to typical therapies. Mr Breda de Moraes was said at that time to be so preoccupied with unresolved workplace issues that he would not focus on tasks within his job, or indeed any other work.[13]On 18 April 2020, Mr Jones emailed Mr Breda de Moraes after he had notified sickness absence (page 175 of the Claimants’ Bundle). It was just four weeks into the first national lockdown during the pandemic. Mr Jones asked a series of pertinent questions evidently focused on whether or not Mr Munro-Henworth might be infected with the virus. It should be remembered that at this time there were no available tests to establish whether a person was infected. Mr Jones’ questions were direct and to the point, but certainly not rude. In particular, it was understandable that he wished to establish whether Mr Breda de Moraes was working from his partner’s home, since if he was he would need to complete a DSE assessment in respect of any such arrangements. Yet Mr Breda de Moraes immediately read something more into Mr Jones’ enquiries. There was no basis for him to do so, nor any reason to seek an informal meeting with Mr Jones to ‘clear the air’. He was seeing an issue where there was none and he has continued to see an issue and to read something more into the matter to this day, some five years on.[14]An exchange regarding Mr Breda de Moraes’ commitment or otherwise to mediation further illustrates why, as with Mr Munro-Henworth, we approach Mr Breda de Moraes’ evidence with a degree of caution. In the course of his evidence at Tribunal Mr Breda de Moraes said that he wanted mediation to try to resolve difficulties that had arisen between himself and Mr Jones. He was taken by Mr Bownes to paragraph 87 of his witness statement in which he states, “Mediation was simply not what was required in this case. What ought to have occurred was a proper disciplinary process to be conducted as against Tim.”[15]Of course, this rather underlined the point that Dr Adeodu made in 2021 regarding Mr Breda de Moraes’ entrenched, embittered attitude towards Mr Jones. Yet, at Tribunal Mr Breda de Moraes sought to blame everyone but himself for the fact that mediation did not happen. He described it as a sham that he didn’t need. Whether consciously or subconsciously, we find that he was looking for a reason not to participate in mediation as he would only be satisfied with an outcome that accorded with his entrenched view and settled determination that Mr Jones should face disciplinary action and ultimately be removed from his job. His stance in the matter was and remains unattractive and unwarranted, though we find it was a view he shared with Mr Munro-Henworth.[16]We shall return in a moment to the Claimants’ claim that they made protected disclosures regarding financial irregularities in relation to refreshment stall licences, specifically, that Mr Jones received back handers in return for which, at the very least, he failed to review the licences over a period of years. The allegations are entirely without foundation, fanciful even, the product of wishful thinking on the part of the Claimants. Indeed, it is clear to us, that they have reinforced one another’s views and biases in the matter. The fact that they have continued to stand by their allegations without a scintilla of evidence to support them has significantly undermined our ability to be entirely confident in their evidence.
The Law
[17]An employee with sufficient qualifying length of service has the right not to be unfairly dismissed by their employer: section 94 of the Employment Rights Act 1996 (“ERA”). It is not in dispute that the Claimants had sufficient qualifying service to pursue claims for unfair dismissal. It is also not in dispute that Mr Breda de Moraes was dismissed by the Respondent.[18]In the case of Mr Munro-Henworth, the Respondent disputes that he was dismissed. Section 95(1)(c) ERA 1996 provides that for the purposes of Part X of the Act, an employee is dismissed by his employer if … (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.[19]Mr Munro-Henworth resigned his employment with immediate effect on 14 March 2022. He claims that he resigned in response to the Respondent’s treatment of him, namely subjecting him to detriments as a whistleblower. The last in time matter identified by him in that regard was the conduct of a Stage 3 grievance appeal hearing before Council members on 14 March 2022. In his resignation letter he said that his concerns had not been taken seriously and continued to not be taken seriously.[20]It is an implied term of all employment contracts that the parties will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between them - Malik v Bank of Credit and Commerce International SA [1997] UKHL 23.[21]A claimant must have relied upon the conduct complained of in resigning their employment. Furthermore, it is not every breach of contract that will justify an employee resigning their employment without notice. The breach or the matters collectively complained of must be sufficiently fundamental that it or they go to the heart of the continued employment relationship.[22]The starting point in this regard are the observations of Lord Denning MR, in Western Excavations (ECC) Ltd. v Sharp [1977] EWCA Civ 165, albeit which have been developed and finessed in subsequent authorities.[23]Under the “last straw” doctrine, an employee can resign in response to a series of breaches or conduct that cumulatively amounts to a breach of trust and confidence – Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978. The final incident relied upon by an employee, the socalled “last straw”, need not be of the same character as the earlier matters complained of and, indeed, may be relatively insubstantial. The “last straw” may resurrect earlier breaches of contract that have otherwise been waived by the employee. The question is whether, viewed objectively, the employer has demonstrated that they no longer intend to be bound by their obligations as an employer. The final straw must contribute something to the cumulative breach, even if what it adds is relatively insignificant, though it must not be trivial or innocuous.[24]Both Claimants claim that they were dismissed because they made protected or qualifying disclosures i.e. because they were whistleblowers. The Respondent has the burden of establishing the reason for dismissal (in the case of Mr Munro-Henworth, assuming he establishes that he was constructively dismissed). The Respondent maintains that it dismissed Mr Breda de Moraes for incapability due to long term ill health. Capability is a potentially fair reason for dismissing an employee. Only once an employer has discharged its burden of establishing a potentially fair reason for dismissal will a Tribunal go on to consider, in accordance with s.98(4) of the Employment Rights Act 1996 whether the employer acted reasonably or unreasonably in treating that reason as a sufficient reason for dismissing the employee.[25]The framework for considering whether dismissal for ill-health absence falls within the band of reasonable responses open to an employer was set out by the Employment Appeal Tribunal in Monmouthshire County Council v Harris EAT 0332/14. Her Honour Judge Eady observed: ‘Given that this was an absence-related capability case, the employment tribunal’s reasoning needed to demonstrate that it had considered whether the respondent could have been expected to wait longer, as well as the question of the adequacy of any consultation with the claimant and the obtaining of proper medical advice’.[26]In addition, where the employer operates a detailed attendance policy, it will be expected to adhere to its provisions to ensure procedural fairness, although inconsequential departures from any policy may not necessarily be fatal — see Sakharkar v Northern Foods Grocery Group Ltd (t/a Fox’s Biscuits) EAT 0442/10.[27]If an employer was in any way responsible for the employee’s illness that led to the dismissal, or for exacerbating such an illness, this may be a factor that is taken into account by an employment tribunal when deciding on the fairness of the dismissal — Royal Bank of Scotland v McAdie 2008 ICR 1087, CA. The Court of Appeal accepted that it may be necessary to ‘go the extra mile’ in such circumstances; for example, being more proactive in finding alternative employment for the employee or putting up with a longer period of sickness absence. The Court of Appeal also emphasised, however, that the fact that an employer is at fault for causing the incapacity does not necessarily mean that a resulting dismissal will be unfair. Indeed, in the case before it, it upheld the Employment Appeal Tribunal’s decision (overruling the Employment Tribunal) that the Claimant — whose stress-related illness had been caused by the bank — had not been unfairly dismissed. The Court of Appeal approved the Employment Appeal Tribunal’s view that there was in truth no alternative to dismissal. The medical evidence was unequivocal, both that the Claimant was unfit for work and that there was no prospect of recovery. Moreover, the Claimant had expressly stated that she would never be able to return to work. This was not, therefore, a case where there was something more that the bank, having caused the illness, could and should have done to try to save his employment.[28]Section 43B(1) of the Employment Rights Act 1996 provides as follows: 43B Disclosures qualifying for protection 1. In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[29]Section 47B(1) of the 1996 Act provides as follows: 47B Protected disclosures 1. A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.[30]In order for a complaint to succeed under s.47B, it is sufficient that the protected disclosure had a significant or material influence on the employer’s act or failure to act; it need not be the sole or principal reason for the detrimental treatment about which complaint is made.[31]Section 103A of the 1996 Act provides: 103A Protected disclosure An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.[32]In contrast to s.47B, the protected disclosure must be the sole or principal reason for dismissal if the complaint is to succeed. As noted already, it is the Respondent’s burden to establish the reason for any dismissal rather than the Claimants’ burden to prove they were dismissed for blowing the whistle. They are entitled to assert an impermissible reason and put the Respondent to proof in the matter, in the case of Mr Munro-Henworth having first established that he was in fact dismissed.[33]We shall come back to s.43B in a moment. When deciding whether or not a worker has been subjected to detrimental treatment, the key question is whether the treatment in question is of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL. More recently, in Warburton v The Chief Constable of Northamptonshire Police [2022] EAT 42, the Employment Appeal Tribunal confirmed that detriment is to be interpreted widely in this context, and that it is not necessary for a Claimant to establish any physical or economic consequence. Moreover, although the question for the Tribunal is framed by reference to a reasonable worker, it is not a wholly objective test in so far as it is sufficient that a reasonable worker might take the view that the treatment in question was to their detriment even if other, reasonable workers, might take a contrary view. Preliminary Issue[34]We must first determine whether the Claimants or either of them made one or more qualifying disclosures within the meaning in s.43B(1) of the Employment Rights Act 1996. If they did not do so, their whistleblowing complaints cannot succeed. In order to qualify for protection under s.43B(1): the disclosure must be of information; the worker must believe that the information tends to show one or more of the matters in paragraphs (a) – (f) of s.43B(1) of the 1996 Act; that belief must be reasonably held; the worker must additionally believe they are making their disclosure in the public interest; and their further belief in that regard must also be reasonably held.[35]When assessing reasonableness in this context, the question is what the Claimant reasonably believed rather than what a hypothetical objective worker might reasonably have believed. It is a subtle but potentially important distinction as it requires a Tribunal to have regard to the individual worker, including their knowledge, experience and circumstances: in other words, to consider the matter from their perspective. A worker need not be right in order for them to have protection as a whistle blower.[36]Those various principles derive from, amongst others, the judgments of the Court of Appeal in Babula v Waltham Forest College [2007] EWCA Civ 174, Chesterton Global Ltd & Another v Nurmohamed [2017] EWCA Civ 979 and Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436.[37]The principal issue with which the Court of Appeal was concerned in Kilraine was the circumstances in which allegations made by an employee may constitute a disclosure of information by the worker for the purposes of section 43B. The Court of Appeal cited with approval Langstaff J’s comments when the case had been decided by the Employment Appeal Tribunal, namely that Tribunals should avoid an artificial division between “information” on the one hand and “allegations on the other. According to the Court of Appeal, in order for a statement to be a qualifying disclosure it has to have sufficient factual content and specificity such as is capable of tending to show one of the matters in subsection (1). Whether it meets that standard is something that Tribunals should evaluate in the light of all the facts of the case (including the particular context it was made). The Court of Appeal noted that the meaning of a statement which is to be derived from its context should be explained in the Claim Form and in the Claimant’s evidence, so as to allow the Respondent a fair opportunity to dispute the context relied upon and / or that the statement could really be said to incorporate any part of the factual background. As we shall come to in a moment, Mr Breda de Moraes in particular has failed to address the bulk of his alleged disclosures in his witness statement. For his part, Mr Edmonds has addressed the claimed disclosures in somewhat broad brush terms in his submissions, at the expense of a more focused analysis of why, in each case, the alleged disclosure is said to qualify for protection.[38]In Kilraine the Court of Appeal also considered whether the claim should have been struck out on the basis that Ms Kilraine had no real prospect of establishing that she had the requisite belief under the first limb of the twostage test referred to. The Court of Appeal concluded that the Tribunal was “plainly entitled” to conclude that she had no real prospect of success in circumstances where there was nothing in the Claimant’s case or witness statement for the purposes of section 43B(1)(b) to suggest that she had a relevant legal obligation in mind at the material time.[39]Chesterton was concerned with the public interest element of s.43B. We refer in particular to Lord Justice Underhill’s comments at paragraphs 27 to 31 of the Court’s judgment. He said that “The essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest.” A disclosure did not cease to be in the public interest because it served the private interests of a workers’ colleagues. The question can only be answered by the Tribunal on a consideration of all the circumstances of the particular case.[40]As to whether or not the worker’s belief about the nature of their disclosure is reasonably held, Lord Justice Underhill recognised that there can be more than one reasonable view as to whether a disclosure is in the public interest. Tribunals should be careful not to substitute their own view for that of the worker. The reasons why a worker considers their disclosure to be in the public interest is not particularly material. Lord Justice Underhill recognised that workers will often seek to justify their disclosure after the event by reference to things that were not in their head at the time of their disclosure. This isn’t to call into question the decision in Kilraine; the worker will still be expected to offer credible reasons as to why they believed at the time that the disclosure was in the public interest. Finally, motivation is not to be confused with belief.[41]In Ibrahim v HCA International Ltd. [2019] EWCA Civ 2007 the Court of Appeal again considered the public interest aspect of s.43B. The case was a little unusual because the Court of Appeal gave its judgment in the Chesterton case after the Tribunal in Ibrahim had heard all the evidence but before it had decided the matter and given judgment. There was some suggestion that Mr Ibrahim had been questioned at Tribunal as to whether contemporaneous emails and his witness statement made any mention of a public interest. However, the Court of Appeal said that in the light of Chesterton he should have been asked ‘directly’ whether at the time he made the disclosures he believed he was acting in the public interest.[42]In Ibrahim, the Court of Appeal reiterated a point made in Chesterton, namely that motives are not to be confused with belief. A worker’s motivation in making a disclosure will not determine the question whether s/he believed the disclosure to be in the public interest.[43]Babula concerned the second limb of the two-stage test. Once a worker establishes that they reasonably believe their disclosure to be in the public interest and to tend to show relevant wrongdoing, the fact their belief turns out to be wrong or, in this particular case (which was brought with reference to subsection (1)(a)) that it did not in law amount to a criminal offence, does not of itself render the belief unreasonable. A whistleblower need not be right. As Lord Justice Wall observed: “To expect employees on the factory floor or in shops and offices to have a detailed knowledge of the criminal law sufficient to enable them to determine whether or not particular facts which they reasonably believe to be true are capable, as a matter of law, of constituting a particular criminal offence seems to me both unrealistic and to work against the policy of the statute.”[44]Finally, we remind ourselves that the Claimants have the burden of establishing on the balance of probabilities, that they made the disclosures sought to be relied upon and, in each case, that they were qualifying disclosures as defined in the 1996 Act. Findings and Conclusions in relation to the Preliminary Issue[45]In our judgement, Mr Munro-Henworth made qualifying disclosures on 28 September 2020 to Stephanie Fisher, on 5 January 2021 to Mr Blair and on 19 May 2021 to Mr Carré. We are satisfied in the case of the first disclosure that it does, just, meet the Kilraine threshold, even though the specific health and safety issues of concern were not indicated by him. In our judgement it was sufficient that Mr Munro-Henworth said there were issues of concern including, “a serious lack of records”, which is an essential element of health and safety risk assessment. It is also relevant in this regard that he referred in his email to the fact that Paul Parry, the Corporate Health and Safety Manager had allegedly said that he would condemn half the market in its then current state. As to whether Mr Munro-Henworth had a reasonably held belief that this tended to show that health and safety was being endangered, in our judgement Mr Parry’s alleged voiced concerns, certainly as these were seemingly understood at the time by Mr Munro-Henworth, were sufficient to support his belief in this regard. We reiterate that the question is not whether Mr Munro-Henworth was right about the matter.[46]It is clear from Mr Munro-Henworth’s further email of 28 September 2020 to Mr Jones and Mr Carré (at pages 556 and 557 of the Bundle) that he had specific health and safety concerns in mind, as he set out in some detail in his email. It was not put to him in cross examination that he did not have those concerns at that time or that his contemporaneous explanation for them did not accurately reflect what he then believed. In our judgement, the issues raised were plainly and reasonably in the public interest.[47]Mr Munro-Henworth’s account of his meeting with Mr Blair on 5 January 2021 was essentially unchallenged at Tribunal. Mr Blair did not give evidence and Mr Munro-Henworth was barely questioned about the meeting other than as to whether Mr Blair was angry during it. At the very least, for the reasons already given, the further expression of concerns regarding health and safety issues within the market, including the lack of risk assessment or SMP documentation, is sufficient in our judgement to qualify his concerns as a qualifying disclosure.[48]Turning to Mr Munro-Henworth’s email of 19 May 2021 and the attached grievance (pages 801 of Bundle onwards), whilst the grievance was largely concerned with how he perceived he had been treated by the Respondent, Mr Munro-Henworth specifically referred to a wider public interest in the matter at paragraphs 41 and 45 of his letter, namely that disabled employees and those with mental health conditions like himself, were more likely to be impacted by suspension under the Council’s Disciplinary Procedure & Policy. He set out in some detail why he believed this to be the case, citing various legal authorities. In our judgement it is irrelevant whether or not he was right in what he was saying. We are satisfied that this was his genuinely held belief in the matter derived from researching the law.[49]Mr Munro-Henworth did not, however, in our judgement make a protected disclosure to Ms Hemingway on 31 December 2020. In the course of his email to her (page 573 of the Bundle) he referred, essentially in passing, to the fact that he and Mr Breda de Moraes were working with their trade union on a whistleblowing letter based on, “a number of concerns we have identified within the service”. He went on to refer in very general terms to health and safety, the review of annual fees and the handling and alleged suppression of complaints by Mr Jones. Whereas his disclosure on 28 September 2020 did, just, meet the Kilraine threshold, his email to Ms Hemingway some months later did not. It lacked sufficient factual content and specificity such as to be capable of tending to show one or more of the matters in sub-paragraphs (a) – (f) of s.43B(1). Indeed, as Mr Bownes says, it was a statement of his future intention to make a protected disclosure which, unlike ‘protected acts’ under the Equality Act 2010, are not protected. In signifying his future intention in the matter there was insufficient information to qualify the communication as a disclosure qualifying for protection under the 1996 Act.[50]Finally, as regards his alleged further disclosure on 12 March 2021, there is no email within either bundle in support of what Mr Munro-Henworth says in paragraph 340 of his witness statement. We agree with Mr Bownes that at most Mr Munro-Henworth was doing his job rather than making a disclosure which tended to show a relevant failing. He was seeking to reschedule a meeting which he had himself missed to progress action on the health and safety issues pertaining to the market. Nothing really turns on the matter since the alleged disclosure was to Mr Cotton, who is not alleged to have subjected Mr Munro-Henworth to detrimental treatment as a whistleblower.[51]Turning then to Mr Breda de Moraes’ alleged disclosures, in our judgement only his disclosure to Jonathan Tully on 16 October 2021 was a qualifying disclosure. Mr Bownes’ submissions proceeded on the basis that there was no copy of the claimed disclosure in the bundles; in fact we understand the purported disclosure to be the document dated 16 October 2021 attached to Mr Munro-Henworth’s email to Mr Tully of 18 October 2021, namely a joint grievance on behalf of himself and Mr Breda de Moraes. Somewhat curiously the joint grievance has not been relied upon by Mr Munro-Henworth as one of his protected disclosures. Be that as it may, for essentially the same reasons that Mr Munro-Henworth’s disclosures of 28 September 2020 and 5 January 2021 qualify for protection, we are satisfied that the continued expression of health and safety concerns, this time by Mr Munro-Henworth on behalf of himself and Mr Breda de Moraes, was also a qualifying disclosure. Specifically, they asserted that there was no fire risk assessment in place for any of the Council’s markets or method statements for managing health and safety. It is irrelevant what their motives may have been by this time, we are satisfied that their beliefs in the matter were genuinely and reasonably held.[52]For the avoidance of doubt, notwithstanding Mr Breda de Moraes has not always demonstrated the fullest understanding of the issues in the case and seems to have been content to be guided, even directed by Mr MunroHenworth, and furthermore that the disclosure is not addressed in Mr Breda de Moraes’ witness statement, we are satisfied that the grievance letter of 18 October 2021 was submitted by Mr Munro-Henworth with Mr Breda de Moraes’ knowledge and agreement and that it essentially reflected his views, even if Mr Munro-Henworth may have expressed them more eloquently and explicitly on his behalf.[53]We do not, however, consider that Mr Breda de Moraes made qualifying disclosures as follows: on 30 March 2021 to Mr Jones; on 1 April 2021 to Mr Tully; on 24 May 2021 to Ms Hemingway and Ms Caranese; or in his and Mr Munro-Henworth’s joint appeal against the decisions on their joint grievance.[54]Mr Breda de Moraes’ email to Mr Jones of 30 March 2021 (page 591 of the Bundle) was no more than a basic initial enquiry about the market refreshment licences. His enquiry did not tend to show anything within the ambit of s.43B(1), merely that he had not seen any documentation to evidence any reviews having been undertaken since 2015. He copied Mr Tully into an email the following day to the Respondent’s Internal Audit team. Whilst he said in that email that he was making the team, and therefore Mr Tully, aware of a practice that should be reported under the Council’s Whistleblowing Policy, he did not indicate that it related to any matter potentially within s.43B(1). If Mr Jones’ alleged failure to discharge his duties in respect of reviewing street trading fees and refreshment stall licences could be said to be a matter falling within the ambit of s.43B(1)(b), we do not consider that Mr Breda de Moraes had reasonable grounds for any belief that the responsibility in the matter sat with Mr Jones. He has not addressed this issue in his witness statement.[55]As we have indicated already, Mr Breda de Moraes has made entirely unfounded allegations that Mr Jones was receiving back handers from the relevant refreshment licence holders. Mr Breda de Moraes had been aware since October 2020 that the Council’s Chief Property Surveyor, Mr Doggett was of the view that management of the refreshment vans had passed to the market team in 2015. If anything, Mr Doggett was suggesting that Mr Breda de Moraes should take responsibility for any review of their licences, in conjunction with Legal Services. There was no suggestion by Mr Doggett that Mr Jones had failed in his duty in the matter. We note that Mr Breda de Moraes forwarded Mr Doggett’s email to Mr Munro-Henworth within one minute of receiving it, exclaiming, “hello” and that within two hours Mr Munro-Henworth replied saying, “this looks concerning”. There was no reflection by either of them, rather a determination to find fault and to exploit anything that might cast Mr Jones in a poor light. In our judgement, it significantly undermines any claim Mr Breda de Moraes might make to having had a reasonably held belief that the information being communicated tended to show a relevant matter, or that it was in the public interest. He does not, of course, make that case in his witness statement. In our judgement, this was solely about Mr Breda de Moraes’ personal interest in the matter, namely gaining some perceived advantage in relation to Mr Jones.[56]The emails of 26 November 2015 at page 886 of the Claimants’ Bundle, do not support that any review of the refreshment stall licences sat with Mr Jones, and indeed that is reinforced by Mr Breda de Moraes’ email of 11 December 2020 to Liz Brennan in which he said he believed that Mr Jones may have made a personal profit from some of the activities complained of, even though by his own admission in the email he had no evidence of this. It was a scurrilous allegation and the only person damaged by it is Mr Breda de Moraes and to an extent, Mr Munro-Henworth who supports it. There is not a shred of evidence of any financial impropriety on the part of Mr Jones, whether in relation to the refreshment stall licences or otherwise.[57]As regards Mr Breda de Moraes’ third alleged disclosure on 5 May 2021 to Ms Hemingway and Ms Caranese (page 823 of the joint Bundle), we agree with Mr Bownes that Mr Breda de Moraes has adduced no evidence about the matter. We refer in this regard to paragraphs 124 – 128 of his witness statement. He has the burden of proof in the matter but has failed to discharge it. It is not for the Tribunal, or indeed the Respondent, to try to discern where within eight pages of notes of the meeting, there may arguably have been a protected disclosure.[58]Turning finally to the fifth alleged disclosure, Mr Breda de Moraes and Mr Munro-Henworth’s joint appeal against the outcome of their joint grievance, once again the disclosure is not addressed in Mr Breda de Moraes’ witness statement, nor indeed is it addressed in Mr Edmonds’ further particulars or closing submissions. Mr Breda de Moraes has failed to discharge his burden in the matter. It is not for the Tribunal to trawl the 24-page letter of appeal to identify material that might indicate a disclosure qualifying for protection. It is for the Claimants, as any claimant must, to put forward their case. In this and indeed in other respects as we shall come to, the Claimants have failed to do so. Findings and Conclusions in respect of the s.47B complaints[59]The Claimant’s complaints that they were subjected to detriments on the grounds that they made protected disclosures involve 17 issues or areas of concern; they are summarised at paragraphs 3.1.1 to 3.1.17 of the List of Issues (pages 507 and 508 of the Hearing Bundle). Mr MunroHenworth additionally relies upon the detriments in support of his claim that he was constructively dismissed. Our findings and conclusions are as follows. Issue 3.1.1 – Allowing officers involved in grievances to oversee procedures[60]The ‘officers’, ‘grievances’ and ‘procedures’ in question are not indicated in the list of Issues, though it seems there had been some attempt by the Claimants to provide further particulars in this regard as part of a Further and Better Particulars document served in November 2023 in response to an order made by Employment Judge Young at a case management hearing the previous month. The Further and Better Particulars were provided in tabular form; section 3 purported to further particularise the detriments. We refer in this regard to pages 488 – 491 of the Bundle, which we shall refer to hereafter as “the Detriments Table”.[61]D1 of the Detriments Table provides the following further particulars in relation to Issue 3.1.1: The respondent's decision to allow officers who were the subject of grievances raised by the claimants, to oversee and conduct sickness absence and disciplinary procedures, constitutes detrimental treatment for making protected acts. They add little, if anything to the List of Issues.[62]On the second day of the final hearing, Mr Edmonds clarified that the complaint is limited to Mr Carré and Mr Tully’s involvement in Stage 1 Absence Review Meetings in relation to Mr Breda de Moraes. We think he meant Stage 1 and Stage 2 meetings, since Mr Tully’s involvement in managing Mr Breda de Moraes’ sickness absence came at the second stage of the process.[63]In our judgement, it cannot be said that the Respondent’s handling of Mr Breda de Moraes’ sickness absence subjected Mr Munro-Henworth to detriment. It is not necessary for us to repeat our opening observations regarding Mr Hunro-Henworth’s inability to separate his own interests from those of Mr Breda de Moraes and his tendency to perceive or take on others’ cares as his own. The legal test is whether a reasonable worker would, or might, take the view that the treatment in question had, in all the circumstances, been to their detriment. We conclude that a reasonable worker in Mr Munro-Henworth’s position would have thought it to be something that did not directly affect them (or strictly, that no worker in Mr Munro-Henworth’s situation might reasonably have shared his view that he had somehow been disadvantaged).[64]As regards Mr Breda de Moraes, Mr Blair wrote to him on 27 July 2021 inviting him to attend a Stage 1 Absence Review Meeting on 11 August 2021. Mr Blair referred in his letter to Mr Breda de Moraes’ failure to respond to an earlier email in the matter from Beverley Howlett, HR Business Partner. The Respondent’s Sickness Absence Management Policy and Procedure (pages 147 to 166 of the Claimants’ Bundle) provides that the Stage 1 Absence Review Meeting will be conducted by the employee’s manager. In the case of Mr Breda de Moraes that was Mr Blair who had by then assumed line management responsibility for him. The only grievance that had been raised by Mr Breda de Moraes at that stage concerned Mr Jones. Mr Blair was not obviously conflicted in the matter, in which case there was no reason for the Respondent to depart from its established documented policy when managing Mr Breda de Moraes’ sickness absence. In our judgement no reasonable worker in his position would have regarded Mr Blair’s involvement as being, or potentially being, to their detriment.[65]For the same reason, a reasonable worker in Mr Breda de Moraes’ position would not have regarded Mr Carré’s subsequent involvement on 12 October 2021 as being, or potentially being, to his detriment.[66]In any event, Mr Breda de Moraes’ first and only protected disclosure was on 16 October 2021, namely four days after Mr Carré had conducted the Stage 2 Absence Review Meeting, albeit in Mr Breda de Moraes’ absence. Whatever Mr Breda de Moraes’ concerns regarding Mr Blair’s and Mr Carré’s respective involvement in the Absence Reviews Meetings, this was plainly not because he subsequently blew the whistle. His complaints cannot succeed. Issue 3.1.2 – Concealment of disciplinary investigator[67]The Claimants’ complain that the identity of the person who initiated disciplinary action was concealed. No disciplinary action was initiated in relation to Mr Breda de Moraes, so the complaint can only directly relate to Mr Munro-Henworth. In our judgement, even if Mr Breda de Moraes was concerned for his colleague in circumstances where they were both dissatisfied with their manager and possibly with the Respondent as their employer, and were supporting one another in this regard, we do not consider that a reasonable worker in Mr Breda de Moraes’ position would, or might, have taken the view that his colleague’s suspension was to his, as opposed to his colleague’s, detriment. In any event, the initiation of an investigation and, thereafter, a formal disciplinary process in relation to Mr Munro-Henworth occurred some months before Mr Breda de Moraes’ protected disclosure and accordingly was not influenced by it. Mr Breda de Moraes’ complaint cannot succeed.[68]As regards Mr Munro-Henworth, the complaint is summarised at D3 within the Detriments Table, though as with Issue 3.1.1 above it lacks further meaningful particulars. We have been unable to identify any further information about the matter in the bundles, or in Mr Munro-Henworth’s witness statement. Mr Bownes relies upon paragraph 415 of Mr MunroHenworth’s statement as providing confirmation that Mr Munro-Henworth knew that Ms Hemingway, Strategic Director of Human Resources had instigated the Council’s disciplinary procedures.[69]As we shall come to shortly, Ms Hemingway had good reason to be concerned as to Mr Munro-Henworth’s conduct in relation to the closure of the market in early 2021. The instigation of a disciplinary investigation was evidently a matter for the Respondent’s HR team and plainly within Ms Hemingway’s remit as Strategic Director of Human Resources.[70]On the strength of his own witness statement, by 8 April 2021, Mr MunroHenworth knew that Ms Hemingway had authorised, or instigated, a disciplinary investigation. He does not allege in his witness statement that this was deliberately concealed from him prior to 8 April 2021. The necessary basic facts to support the complaint have not been established by him. Issue 3.1.3 - Conducting ineffective and biased investigations[71]In the context of complaints, allegations, disclosures, grievances and disciplinary concerns that occupied the parties over a period of approximately two years, the Claimants’ assertion that investigations were ineffective and biased is expressed in the most general terms. Regrettably, it reflects a broader lack of focus on their part; and it has been compounded by the further information submitted by Mr Edmonds on the morning of the second day of the final hearing in response to the Tribunal’s request that he use the Tribunal’s reading time to provide further and better particulars of various of the detriments sought to be relied upon. We invited Mr Edmonds to identify the relevant investigation, who was responsible for any alleged shortcomings in it, when this was, and specifically in what ways the investigation was ineffective and biased. Mr Edmonds produced a table which identified eight procedures where there had allegedly been an ineffective and biased investigation. However, the table lacks any further particulars in respect of three of those procedures, namely the disciplinary hearing, disciplinary appeal and grievance processes in relation to Mr Munro-Henworth. Whilst the table identifies when the various procedures were ongoing, the respects in which they were said to be ineffective and biased was not indicated, nor when this had happened. In each case, more than one individual was said to be responsible for this state of affairs, without however identifying when or in what ways they had been ineffective or biased.[72]The Claimants must establish the primary facts relied upon. As regards the disciplinary hearing, disciplinary appeal and grievances processes, Mr Munro-Henworth has not even begun to discharge his burden in the matter. It is no part of the Tribunal’s function to step into the arena and to try to discern a case for him. We are reminded of Langstaff P’s often cited observation in Chandhok v Tirkey [2015] ICR 527 EAT that employment tribunals “should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings”.[73]Mr Munro-Henworth additionally complains about his suspension and the disciplinary investigation. We refer in this regard to the third and fourth rows of Mr Edmonds’ table. Mr Munro-Henworth complains that the suspension process was ineffective and biased in so far as protected disclosures to Heather Jones were allegedly omitted and ignored. He attributes these failings to Mr Carré, Ms Jones herself, Ms Caranese and Ms Hemingway. As regards the disciplinary investigation, reference is made to failures to follow the Respondent’s whistleblowing, grievance and disciplinary policies, though the only specific complaint is that Internal Audit were not notified of protected disclosures made during an investigation meeting.[74]There is a copy of the Respondent’s Disciplinary Procedure & Policy at pages 1,601 – 1,618 of the Claimants’ Bundle. It confirms that suspension is pending an investigation, an uncontroversial proposition. Suspension is in the nature of a holding action that will invariably be decided on fairly limited information until the full facts are established. The Policy provides that suspension will be kept under review. There is evidence of one such review at page 603 of the Bundle.[75]Mr Munro-Henworth was informed by Mr Carré in writing on 30 March 2021 that he was being suspended to enable an investigation into a number of potentially serious concerns, namely: Inappropriate communication with market traders Serious insubordination Disclosure of confidential information Breach of trust and confidence Bringing the Council into disrepute Unacceptable use of Email, Internet and Social Media policy (page 594 of the Bundle). In our judgement any one of the documented concerns might have warranted suspension as we think a reasonable worker in Mr Munro-Henworth’s situation would have recognised. The suspension was undoubtedly unwelcome but it was in accordance with the Respondent’s documented policy and reflected accepted HR practice, in which case no reasonable worker in Mr Munro-Henworth’s position might have regarded it as being to their detriment. For completeness, he was not suspended because he had made a protected disclosure to Ms Fisher some months earlier, rather, as we shall come back to, because the Respondent had well founded serious concerns as to how he had conducted himself.[76]Mr Munro-Henworth’s only specific complaint is that Internal Audit was not informed of protected disclosures allegedly made by him in the course of a disciplinary investigation meeting, which it is agreed took place on 14 April 2021. Section 5.4 of the Respondent’s Disciplinary Procedure & Policy provides: “Where there may be concerns about unlawful conduct, financial malpractice, fraud and malpractice, danger to the public or environment, whistle blowing or avoidable losses, the Internal Audit Team should be notified.”[77]A fundamental difficulty for Mr Munro-Henworth is that he has not asserted as part of his claim that he made one or more qualifying disclosures on 14 April 2021, such that they should have been escalated to Internal Audit. No such disclosures are referred to by him in paragraph 425 of his witness statement in which he addresses the disciplinary investigation meeting. Once again, he has failed to discharge his evidential burden in the matter.[78]As regards Mr Breda de Moraes, the detriments referred to in the first, second and fifth rows of Mr Edmonds table all pre-date his protected disclosure in October 2021. Accordingly, whatever his complaints (which in any event are difficult to discern), any matters potentially complained of were plainly not because of a qualifying disclosure that he had yet to make.[79]The Claimants’ complaints are not well founded. Issue 3.1.4 - Exclusion from operational management meetings in December 2020[80]This complaint arises out of the brief closure of the central Cambridge market ahead of the second national lockdown. The decision to close the market took place against the backdrop of a pronounced increase in coronavirus infection rates in Cambridge and the wider Cambridgeshire area. The city and county moved from Tier 2 to Tier 4 on 26 December 2020. As was so often the case during 2020, it was a fast moving situation that would have required decisions on public health related matters to be made at relatively short notice on potentially limited information.[81]In mid-December 2020, Mr Jones returned to work following an extended period of stress related sick leave. The Claimant says that he returned to work on Monday 14 December 2020, though Dr Proud’s email of 19 December 2020 below, refers to Mr Jones’ as having returned on Wednesday 16 December 2020. Whichever date it was, we do not think that the Claimants have really reflected on what this meant for Mr Jones, specifically that he returned to work in the eye of an ongoing public health storm. The closure of the market may have been unprecedented but so was the pandemic. The Claimants only saw matters through the lens of their own concerns at that time, namely their dissatisfaction with Mr Jones and the immediate issue of their work rota and leave allocations. We see the matter instead through the lens of a potentially fragile manager returning to work following an extended period of stress related absence and being immediately confronted with a fast moving situation that might involve the closure of the market, a decision that was bound to be unpopular and to meet with strong, even angry resistance. The Claimants might have been much more understanding, even supportive of Mr Jones in such circumstances. Instead, they lost sight of their own obligations in the matter, not least their duty of loyalty and fidelity to their employer and their manager, aligning themselves instead with the market traders and sections of the public who opposed the closure of the market.[82]Mr Munro-Henworth’s evidence on the matter at paragraphs 221 – 247 of his witness statement evidences an ongoing lack of reflection on his part, notwithstanding the passage of time and the contemporaneous documents now available to him. We find that he undermined Mr Jones and indeed the Council in his various communications with Dr Proud and others over this period.[83]When Dr Proud emailed Mr Munro-Henworth on 19 December 2020 expressing concern regarding Mr Jones’ alleged lack of engagement with the market and its traders (page 1,091 of the Claimants’ Bundle), Mr Munro-Henworth seemingly did not share the email or the concerns expressed in it with Mr Jones, Mr Blair or Mr Carré as he plainly ought to have done, but instead copied the email to Mr Breda de Moraes and their union representative (page 1,097 of the Claimants’ Bundle). We find that Mr Munro-Henworth saw Dr Proud’s email as potentially helpful to himself and Mr Breda de Moraes, specifically in support of what we find was by then their joint desire that Mr Jones should be removed from his role. We find that Mr Munro-Henworth had already been in contact with Dr Proud before Dr Proud sent his email and that they had discussed the issues raised in it. Whether or not Mr Munro-Henworth had actively solicited the email from Dr Proud, we cannot say; however, what it clearly evidences is that Mr Munro-Henworth had discussed Mr Jones’ sickness absence and very recent return with Dr Proud (see in particular the second paragraph of Dr Proud’s email). This was Mr Jones’ sensitive personal data which it was not Dr Proud’s business to know and certainly not Mr MunroHenworth’s place to share with him. Mr Munro-Henworth’s subsequent email of 30 December 2020 (page 1,115 of the Claimants’ Bundle) confirms that he went on to disclose further personal information concerning Mr Jones’ childcare issues and outstanding leave to Dr Proud. Again, he had no business sharing this with Dr Proud.[84]When Dr Proud wrote in his email of 19 December 2020 to Mr MunroHenworth, “Can we politely request that Tim is given some duties where he can fully engage.” we find this reflected a discussion between himself and Mr MunroHenworth that Mr Jones was unfit for the job and should be removed. In our judgement it involved a serious breach of loyalty and fidelity and of trust and confidence on Mr Munro-Henworth’s part. He and indeed Mr Breda de Moraes committed a further serious breach of their obligations by contacting other market trader representatives on 30 December 2020 who confirmed that they had not been consulted about the planned closure. The same day, Dr Proud sent the Claimants and others a draft email regarding a proposed email to market traders about the planned closure of the market (pages 1,113 and 1,114 of the Claimants’ Bundle). Urgent meetings were planned for 31 December 2020 and 2 January 2021. The email was effectively a call to arms to oppose the closure of the market. The recipients were asked to proof read Dr Proud’s draft. In other words, the Claimants were being brought into CMTA’s confidence regarding a proposed plan of action to oppose the Claimants’ employer’s decision to close the market. Twenty minutes later Mr Munro-Henworth responded to Dr Proud to say that the email, “reads well”. He said he would call Dr Proud back.[85]If Mr Jones’ actions, or alleged actions, were a matter for anyone, they were a matter for Mr Blair as his line manager rather than the Claimants as his direct reports. In our judgement, their conduct in the matter amounted to serious insubordination and was further compounded when Mr MunroHenworth forwarded to the CMTA the draft of an email he was planning to send to Mr Jones regarding his own concerns in the matter (page 1,124 of the Claimants’ Bundle). In the draft email he questioned the closure of the market and Mr Jones’ involvement in the matter, before going on to criticise Mr Jones more generally for his “lack of engagement, lack of communication and disingenuous attitude” and “decisions and behaviours in the workplace”. He said that he intended to submit a formal grievance against Mr Jones.[86]We do not accept Mr Munro-Henworth’s explanation that the draft email was copied in error to the Association, which in any event is difficult to square with the fact that a few minutes later he forwarded a further copy of the draft to another market trader (see in this regard page 1126 of the Claimants’ Bundle). We are satisfied that Mr Munro-Henworth intended to share his draft email with the Association, in the same way that Dr Proud had shared the Association’s draft call to action with the Claimants. It seems to us that Mr Munro-Henworth has belatedly come to recognise that what he did was inconsistent with ongoing essential trust and confidence, but that he is unwilling to acknowledge his actions in the matter. We find that he shared his draft email with Dr Proud and others because he wished to communicate the Claimants’ solidarity with those who opposed the closure of the market and to counter the perception, referred to in his draft email, that an email from Mr Jones to traders notifying the closure of the market had, in Mr Jones’ words, “been sent with the understanding of the whole team.”[87]We are reinforced in our conclusions in the matter by Dr Proud’s response to Mr Munro-Henworth a little over twenty minutes after he had received the draft email, “This looks good, covers the key points, shows people we are working together.”[88]Had Mr Munro-Henworth copied the CMTA into the draft in error he might have responded to say so and distanced himself from Dr Proud’s statement about them working together, certainly as regards the traders’ opposition to the closure of the market. In any event, the exchange was entirely in keeping with his involvement in reviewing Dr Proud’s draft email the previous day.[89]Mr Breda de Moraes was plainly on board; he responded to Mr HunroHenworth within approximately 25 minutes of receiving the draft, “You have my support 1000000000000000000000000000%” (page 1131) He did not express any concern at the draft having been copied to the CMTA.[90]Within a further half an hour, the email had been finalised and was sent to Mr Jones and copied into Mr Blair, Mr Carré, Unison and ‘market management’.[91]We are critical of both Claimants in this matter, including their respective efforts to justify their actions. If they had concerns in the matter they should have shared these internally through recognised line management channels. Instead, they undermined and criticised Mr Jones in a very public way, and in so doing they brought themselves and the Council into disrepute. Mr Munro-Henworth claimed that he needed to defend his professional integrity. In fact, in copying in the CMTA and at least one other, and in voicing personal criticisms of Mr Jones, he lent an impression instead of a lack of integrity.[92]Within less than 24 hours of emailing Mr Jones on 31 December 2020, the folly of what Mr Munro-Henworth had done was revealed when Ms Hemingway issued an email to Mr Jones, Mr Munro-Henworth and Mr Breda de Moraes in which she confirmed that it had been her decision to close the market. It was necessary for her to give a firm instruction not to email market traders pending an identified approach to communications.[93]In our judgement, the Claimants may consider themselves lucky not to have been dismissed from the Respondent’s employment in respect of their actions in December 2020. The closure of the market at the height of the second significant phase of the pandemic was self evidently a decision to be made at the highest levels within the Council. It is naïve, at best, for the Claimants to suppose that they should have been involved in that decision. Even if they had persuaded us that they should have been consulted about the matter, or somehow otherwise involved in advance, in our judgement their exclusion from the decision had nothing whatsoever to do with Mr Munro-Henworth’s email to Ms Fisher of 28 September 2020 (at that point in time, the only protected disclosure). There is no evidence that Ms Hemingway was even aware of the disclosure, let alone that it informed how she acted on a difficult, urgent, public health matter some three months later, including why she might have excluded Mr Breda de Moraes who at that stage had not made any protected disclosure.[94]The complaints are entirely misconceived. Issue 3.1.5 – Exclusion of external stakeholder complaints[95]The Claimants complain that the Respondent deliberately omitted external stakeholder complaints from the disciplinary and grievance procedures. They say these would have corroborated their accounts. Mr Edmonds clarified on the second day of the final hearing that this concerns statements or complaints by Dr Proud, Ms Bastick, Michelle de Mir, Edward Cearns and Leight Humphreys, as well as “other traders in general”. The reference to other traders in general is meaningless without further particulars being provided.[96]As we have identified already, Dr Proud and Mr Munro-Henworth worked together during December 2020 on matters of perceived common interest. Dr Proud and Ms Bastick have given evidence in these proceedings as witnesses for the Claimants. It was open to the Claimants to advance or adduce any complaints by them as evidence in the disciplinary and grievance processes if they felt these had some bearing on the matters under consideration within those processes. Dr Proud and Ms Bastick were evidently sympathetic to the Claimants and, as these proceedings evidence, they were willing to provide statements on their behalf. The Respondent did not prevent them from doing so.[97]We cannot find any reference to Michelle de Mir in either of the Claimants’ witness statements. Mr Humphreys and Mr Cearns are referred to respectively in paragraphs 131 and 778C of Mr Munro-Henworth’s witness statement, but not in the context that relevant evidence of theirs was excluded. Instead, he confirms that Mr Breda de Moraes was copied into Mr Humphreys’ alleged concerns. Mr Cearns’ email to Ms Hemingway is at pages 2353 and 2354 of the Claimants’ Bundle; the Claimants were amongst a number of recipients. In which case, as with Dr Proud and Ms Bastick, it was open to the Claimants to adduce details of Mr Humphreys’ and Mr Cearns’ concerns if they were thought to be relevant within any of the processes.[98]The primary facts in support of the complaint have not been established. Issue 3.1.6 – Failure to follow whistleblowing policies[99]Section D10 of the Detriments Table provides no further clarity as to the basis of this complaint. Whilst we recognise that Mr Edmonds is directly instructed by the Claimants and may have accepted their instructions for the final hearing at a late stage, the further particulars provided by him on the second day of the hearing do not assist in our understanding of the complaint. He seemingly refers to four alleged disclosures, two of which are not in fact relied upon as qualifying disclosures in these proceedings and the other two of which, we have determined were not in fact qualifying disclosures. Be that as it may, the alleged failures to follow policy are not identified by Mr Edmonds and, as Mr Bownes has noted in his submissions, nor is this complaint addressed in the Claimants’ witness statements. They have the burden of establishing the primary facts and on this issue have failed to discharge their burden.[100]For completeness, we would add that in the case of Mr Breda de Moraes, the disclosures said to have been made by him in respect of which there was allegedly a failure to follow whistleblowing policies, are said to have been made several months prior to his first qualifying disclosure. In which case any alleged failure to follow policy in dealing with them was not because of a later qualifying disclosure.[101]The complaints are not well founded. Issue 3.1.7 – Late salary payments for additional hours and weekends[102]Mr Munro-Henworth emailed Mr Blair about acting up and weekend working payments on 22 January 2021 following a discussion about the matter with Mr Jones, who was due to speak to Mike Scott within the Council about the matter. If Mr Jones failed to action the matter, the most likely explanation is that he was by then on sick leave again and expected to be absent for some time. Mr Blair responded to Mr Hunro-Henworth within a matter of minutes stating that he would chase the matter up. Mr Munro-Henworth sent a follow up email on 29 January 2021 (page 1,259 of the Claimants’ Bundle), in which he referred additionally to weekends that had been worked by Mr Breda de Moraes. There was no mention of additional hours.[103]Mr Munro-Henworth emailed Mr Scott on 10 February 2021 to ask if he had five minutes to talk about weekend adjustments (page 1,261 of the Claimants’ Bundle). Although the email was entitled “Weekend adjustment payments”, the email did not otherwise obviously relate to payments that were believed to be outstanding. Notwithstanding a discussion had been sought, it seems that Mr Scott did not respond to the email. Mr MunroHenworth then emailed Ms Adrienne Donnelly, an HR Business Partner, on 1 March 2021 raising the issue of weekends worked in excess of the required 26 weekends per year.[104]Although we cannot readily identify any reference to this in Mr MunroHenworth’s witness statement, a discussion must have ensued since he emailed Mr Blair and Ms Donnelly on 18 March 2021, with a detailed break down of weekends worked by himself and Mr Breda de Moraes in 2020 and 2021. He referred to this information as having been requested (see page 1,507 – 1,508 of the Claimants’ Bundle).[105]On 23 March 2021, Ms Donnelly sent a short email into which Mr Blair was copied, stating that approval of payment for weekends sat with Mr Blair, alternatively Yvonne O’Donnell. However, it seems that Mr Blair was then in contact with Ms Donnelly as she emailed Mr Munro-Henworth again on 8 April 2021 copying him into Mr Blair’s review of his weekend working. It was accepted that there were a number of weekends for which Mr MunroHenworth was entitled to be paid at an acting up rate. At paragraph 410 of his witness statement, Mr Munro-Henworth complains of delay but it seems to us that Mr Blair reviewed his detailed claim and authorised various payments within two weeks of being copied into the email of 23 March 2021. We do not consider that to evidence retaliatory behaviour on his part because Mr Munro-Henworth had made a protected disclosure to Ms Fisher in September the previous year. If the Claimants view it in that way, in our judgement that reflects their respective anxiety and embitterment rather than an objectively well founded concern. In the case of Mr Breda de Moraes, he had yet to make his protected disclosure; whatever issues may have arisen in early 2021 in relation to weekend working and pay, these were not because of a disclosure he made several months later.[106]Their complaints in the matter are not well founded. Issue 3.1.8 – Neglect of grievances and disciplinary policies[107]Once again the Detriments Table brings no further clarity to what is a very broadly expressed complaint. The further particulars provided by Mr Edmonds on the second day of the final hearing do not assist: “Heather Jones, Susan Caranese Susan Hemmingway, - Whistleblowing complaints raised during investigations”[108]The Claimants have the burden of establishing the primary facts in support of their complaint, but have failed to discharge it. Their complaints are not well founded. Issue 3.1.9 – Neglecting grievances in favour of disciplinary actions[109]As Mr Breda de Moraes was not the subject of any disciplinary action, this complaint most obviously relates to Mr Munro-Henworth.[110]As with many aspects of this claim, Mr Munro-Henworth’s disclosures and grievances suffer from a similar lack of clarity and focus, and it has meant that the Respondent has often been required to unpack what he has said to try to understand his concerns.[111]Mr Munro-Henworth made four alleged disclosures between September 2020 and 12 March 2021, two of which we have determined were qualifying disclosures. His fifth alleged disclosure was within the body of what was an identifiable grievance submitted on 19 May 2021. Two further grievances followed on 18 and 26 July 2021. Mr Munro-Henworth received responses to all three grievances over a period of seven days between 13 and 20 August 2021, namely within less than a month of the second and third grievances having been submitted and within three and a half months of the first grievance.[112]The Respondent’s Grievance Policy (page 71 onwards of the Claimants’ Bundle) provides that grievances should be concluded within 28 days of the initial meeting with the relevant manager at Stages 1 and 2. A shorter time frame is mandated in respect of Stage 3 grievance appeals to members.[113]Simon Hunt was the Investigating Officer in respect of Mr MunroHenworth’s first grievance and emailed him on 10 June 2021 with a view to setting up a meeting. The meeting was initially delayed because Mr Munro-Henworth’s trade union representative was unavailable, further delayed when Mr Munro-Henworth’s mother was unwell and thereafter delayed and impacted by Mr Munro-Henworth’s own health issues.[114]On 5 July 2021, Mr Munro-Henworth suggested that Mr Hunt might begin his investigation and that they could look to meet at a later date. When Mr Hunt did not hear further from him he suggested on 20 July 2021 that he would decide the grievance on the papers, an approach with which Mr Munro-Henworth concurred the same day.[115]In the meantime, Mr Munro-Henworth had submitted his 16-page second grievance on 18 July 2021. His further 27-page third grievance followed on 26 July 2021. These were determined by Deborah Simpson, Head of Human Resources and James Elms, Head of Commercial Services.[116]On 28 July 2021, Mr Hunt sent Mr Munro-Henworth a list of questions he wished to ask him in lieu of a meeting (see page 967 of the Bundle). Mr Munro-Henworth responded on 31 July 2021. On the basis that his replies can be regarded as the equivalent of a meeting, Mr Hunt’s decision issued on 20 August 2021 was provided within 20 days, i.e. comfortably within the proscribed 28 day timeframe. His letter and report run to some 11 pages.[117]Ms Simpson’s and Mr Elms’ decisions on the second and third grievances were issued within 26 and 25 days of the grievances being raised, which was within the proscribed timeframe for a decision.[118]Mr Munro-Henworth complains that the grievances were neglected in favour of disciplinary action. The Respondent’s concerns in relation to Mr Munro-Henworth seem to have arisen on 11 February 2021, resulting in an informal initial report on 28 March 2021 which recommended a formal disciplinary investigation. Mr Munro-Henworth met with Heather Jones, the Investigating Officer on 14 April 2021, with her investigation report following on 17 May 2021 in which she recommended that the case proceed to a disciplinary hearing. Mr Munro-Henworth was not then well enough to participate in the process which was adjusted so that it was dealt with by way of written submissions. He confirmed his agreement to this approach on 26 August 2021, with the decision being issued on 8 September 2021, some 3 weeks or so after he had received decisions on his grievances. From beginning to end the disciplinary process took seven months. In which case, at the first stage the grievances were dealt with more quickly than and in priority to the disciplinary issues.[119]The decision on Mr Munro-Henworth’s disciplinary appeal took just over a further three months, again as a result of his ongoing health issues. Mr Munro-Henworth’s appeal against the decisions on his grievances took a similar length of time. He appealed the grievance decisions on 1 September 2021 and received an outcome on 7 December 2021. The length of time taken to determine the disciplinary and grievance appeals was essentially indistinguishable. When one factors in that during the grievance appeal process the Claimants submitted a joint grievance on 18 October 2021 and received a decision on it on 7 December 2021, it could be said that the grievance appeals received greater attention than the disciplinary aspects over a comparable period.[120]What is clear, having reviewed the Respondent’s various decisions on his grievances and grievance appeals is that Mr Munro-Henworth’s grievances and appeals were not neglected as he alleges, let alone neglected in favour of disciplinary actions. The fact that the Respondent did not provide him with a decision on his first stage grievance appeal within 28 days is explicable by his ill health and by his submission of a further 10-page joint grievance on 18 October 2021 whilst his grievance appeal was still under consideration. In our judgement if there was any delay it had nothing whatsoever to do with his protected disclosures and instead everything to do with the challenges of managing a 26-page grievance appeal from an employee experiencing ill health, in respect of three separate decisions by three different managers in respect of multiple discrete grievances, in the course of which a further 10-page grievance was lodged. We are further reinforced in our conclusion by the fact that the Claimants received a comprehensive decision on the joint grievance from Andrew Limb, Head of Corporate Strategy (pages 1,517 – 1,522 of the Bundle). This followed a 15 page fully reasoned decision from Mr Prinsep on the grievance appeal dated 7 December 2021. This was not a Respondent that was seeking to avoid engaging with any issues of concern. Mr Munro-Henworth may not agree with the various decisions but there is no proper basis for him to suggest that his grievances were neglected or neglected in favour of disciplinary actions. No reasonable worker in his position would have thought that they had been disadvantaged or even potentially disadvantaged in the matter.[121]As regards Mr Breda de Moraes, his qualifying disclosure was made to Mr Tully on 18 October 2021. For essentially the same reasons we have already set out in relation to Mr Munro-Henworth, the decision on his concerns was not delayed by any parallel disciplinary process in relation to Mr Munro-Henworth. He does not in fact obviously make any complaint about this issue in his witness statement, instead his complaint would seem to be that the Respondent unreasonably dismissed his grievances, rather than unreasonably delayed in dealing with them and/or prioritised other matters. There is a general complaint at paragraph 158 of his witness statement that his complaints were ignored or dismissed but otherwise nothing specific regarding Mr Munro-Henworth’s disciplinary process having been prioritised at the expense of his concerns.[122]The complaints are not well founded. Issue 3.1.10 – Obstruction of access to emails and documents[123]D14 of the Detriments Table provides no further clarity in the matter. The further particulars provided by Mr Edmonds refer to the Respondent having attempted to hold the disciplinary hearing without Mr MunroHenworth being provided with the documents that he needed to defend himself. The person said to be responsible for this was Ms Caranese but she was not cross examined about the matter. Like Mr Bownes, we understand the complaint to relate to the Respondent’s decision to suspend the Claimant’s access to his work email account when he was suspended on 30 March 2021.[124]In our collective experience it is common for an employer to restrict an employee’s access to its IT systems where they have been suspended to enable a disciplinary investigation. In this case, of course, Mr MunroHenworth was being investigated for potential breach of confidentiality, inappropriate communication and misuse of email. So, it is hardly surprising that his email access was initially restricted. He emailed Ms Donnelly on 31 March 2021 to say that he wanted access to key emails dating back to March 2020 (see page 1,621 of the Bundle). He chased the matter a week later (page 1,723 of the Bundle). Ms Donnelly replied, the same day and confirmed that she had already contacted ICT about the matter.[125]On 12 April 2021, Ms Donnelly confirmed that IT had clarified the process for granting access to emails and that she would need to seek approval to reinstate his access. Pending that reinstatement, Ms Donnelly asked Mr Munro-Henworth to identify any specific emails he wished to have ahead of a planned investigation meeting with Ms Jones on 14 April 2021.[126]On 23 April 2021, Ms Donnelly confirmed that she had finalised arrangements for Mr Munro-Henworth to have access to his emails. She provided a log-in username and confirmed that the password would follow. The following day Mr Munro-Henworth reported difficulties logging in. Further emails ensued and on 27 April 2021 Ms Donnelly confirmed that she had spoken to a member of the Respondent’s ICT team and requested that they call him in order to resolve the issue. She followed up with him on 5 May 2021 to see whether he had been contacted and that she would follow up with ICT if not. She later emailed him to say that a member of the ICT team had endeavoured to contact him and had left a message. On 14 May 2021, Mr Munro-Henworth reported that he had been unable to reach the relevant person in ICT.[127]On 19 May 2021 Mr Munro-Henworth was invited to a disciplinary hearing and provided with copies of emails that would be used as evidence. The planned hearing did not go ahead. Although it is not addressed in Mr Munro-Henworth’s witness statement, as far as we can ascertain the hearing was delayed whilst Mr Munro-Henworth was referred for an occupational health assessment. In an email dated 26 May 2021 confirming that the scheduled disciplinary hearing would not go ahead, Ms Howlett of the Respondent reminded Mr Munro-Henworth of the contact details of the relevant person in ICT. He followed up with ICT on 29 May 2021 and received a response immediately following the bank holiday weekend. They seem to have had some difficulty in finding time to speak, finally catching up on 8 June 2021 when it was identified that a new laptop would need to be readied with the account and sent to Mr MunroHenworth. Ms Howlett followed up again on 10 June 2021 to ask where the device should be sent. Mr Munro-Henworth confirmed that it should be sent to his home address. He chased the matter up on 16 June 2021. Ms Howlett followed up but the relevant person in ICT was absent and she confirmed that another colleague in ICT would take the matter forward. She also sought clarification as to the information Mr Munro-Henworth required. She emailed Mr Munro-Henworth again on 23 June 2021 with an update from ICT apologising for their delay. She provided a further update on 29 June 2021, namely that she had spoken with ICT, that the laptop was ready to be despatched and that he should have it that week. She emailed him on 1 July 2021 with login details for the laptop. It seems there was an attempted delivery on 1 July 2021. In the event Mr MunroHenworth collected the laptop from the Respondent on 6 July 2021. On 7 July 2021, he emailed Ms Howlett reporting that the laptop did not permit him to save or print emails. She responded saying that this was not intentional but it was the only way of providing him with access to his emails.[128]Mr Munro-Henworth’s access to emails was not obstructed and his complaint should fail for that reason alone. If his complaint should instead be read as a complaint that his access to emails was delayed, there is no evidence that the relevant individuals in ICT were aware that he had made protected disclosures, let alone that these were a material factor in the delays or any of them.[129]On 13 July 2021, the Respondent wrote to Mr Munro-Henworth to invite him to attend a disciplinary hearing to be held on 3 August 2021. The hearing was postponed at Mr Munro-Henworth’s request and rescheduled to 7 September 2021, with a range of proposed adjustments. Subsequently on 26 August 2021, Mr Munro-Henworth asked for the hearing to take place by written submissions. He submitted his questions for the disciplinary hearing along with his evidence and a chronology on 2 September 2021. The chronology makes extensive reference to emails. We do not know, since Mr Munro-Henworth does not say in his witness statement, whether the documents that were cross referenced in the chronology included emails to which Mr Munro-Henworth had secured access on 6 July 2021. Be that as it may, he had nearly two months in which to review the emails and prepare his case accordingly. In our judgement, a reasonable worker in Mr Munro-Henworth’s position would not consider that they had been disadvantaged or even potentially disadvantaged in the matter. In any event, we conclude that any issues that arose had nothing whatsoever to do with Mr Munro-Henworth’s protected disclosures. The complaint is not well founded. Issue 3.1.11 - Omission to follow the ACAS Code[130]The Respondent is alleged to have failed to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.[131]D16 and D17 of the Detriments Table do not identify the relevant provisions of the Code that are said to have been contravened or when and how they were contravened. In the written further particulars provided on the second day of the hearing, Mr Edmonds stated that these matters were detailed within the “grievance and grounds of appeal letters”, though he did not identify the specific letters in question or the parts of the letters relied upon. It is unacceptable that the Tribunal should be expected to engage in its own enquiries to understand the Claimants’ case; these are adversarial rather than inquisitorial proceedings.[132]As regards the Claimants’ initial grievances, Mr Breda de Moraes’ was submitted on 10 May 2021 and Mr Munro-Henworth’s a short while later on 19 May 2021. At the point they raised their respective grievances there had of course been no grievance process in respect of which there might be said to have been a breach of the ACAS Code. In which case the contraventions are not to be found in those letters. Mr Munro-Henworth’s second and third grievances were submitted on 18 and 26 July 2021 (pages 898 – 913 and 938 – 964 of the Bundle). Their length speak again to a disproportionate approach. Each letter reads as if it were a legal pleading rather than an attempt to resolve a workplace issue of concern. Both letters make reference to the 2011 Statutory Code of Practice on Employment, but only the letter of 26 July 2021 refers to the ACAS Code of Practice on Discipline and Grievance Procedures, namely at paragraphs 65 – 68 and again at paragraphs 84 – 101, the latter expressed in needlessly tendentious terms.[133]Mr Munro-Henworth’s 26-page grievance appeal is at page 1,036 onwards of the Bundle. Again, we have had to work through it to identify any complaint regarding a failure to follow the ACAS Code. We can discern no such complaint within the letter.[134]Under the Respondent’s Grievance Policy he had a further right of appeal, which he exercised on 20 December 2021. His appeal runs to some 40 pages. It reflects the tone of his earlier correspondence. It does not indicate any interest on his part to secure a resolution of a workplace concern. The only reference to ACAS comes at paragraph 132 of the letter and concerns the Respondent’s alleged failure to investigate Mr Breda de Moraes’ grievance within 28 days in accordance with “ACAS Guidelines”.[135]Firstly, it is unclear what guidelines he was referring to, but in any event it is another example of the Respondent’s alleged failures in relation to Mr Breda de Moraes being said to be detrimental treatment of Mr MunroHenworth. We cannot see on what basis he might, or a reasonable worker might, regard himself as disadvantaged by reason of any alleged delays in Mr Breda de Moraes’ concerns being addressed.[136]As regards the alleged breaches of the ACAS Code which are said to have been detrimental to Mr Munro-Henworth, if he did not pursue his initial concerns further on appeal at either stage, that suggests to us that he considered he had not in fact been disadvantaged in respect of the two areas identified in his third grievance. Whilst that is determinative of the issue in our view, we have nevertheless gone on to consider the matters raised in his third grievance as well as the issue of his suspension.[137]At paragraph 66 of his letter of 26 July 2021, Mr Munro-Henworth referred to paragraph 46 of the ACAS Code, “Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance.” (our emphasis) The Respondent was under no obligation to suspend the disciplinary process in such circumstances. Indeed, given that Mr Munro-Henworth’s three grievances extended to some 56 pages in total, it is unsurprising that the issues raised in the grievances were investigated and determined separately. Furthermore, and in any event, Mr Munro-Henworth received the decisions on his grievances between 13 and 20 August 2021, three weeks or so before the decision was taken to issue him with a final written warning; i.e. in compliance with the spirit of the Code that grievances will be dealt with ahead of potentially related disciplinary issues.[138]In our judgement no reasonable worker in Mr Munro-Henworth’s position would consider themselves to have been disadvantaged in the matter.[139]Mr Munro-Henworth’s other complaint is that the Respondent failed to investigate a verbal grievance allegedly raised during the disciplinary investigation meeting on 14 April 2021 and written grievances raised within a document referred to in the alternative as ‘Appendix 7’ or ‘Exhibit 5’. The document in question has not been included within the 5,000 plus pages of documents in the two hearing bundles. Nevertheless, the two matters were addressed in Deborah Simpson’s letter of 19 August 2021, namely her decision on the third grievance (see page 1,004 onwards of the Bundle).[140]We agree Ms Simpson’s approach and reasoning in the matter, which as we say was seemingly not challenged on appeal. For completeness we would add that it seems to us that Mr Munro-Henworth’s stated concerns were misplaced. He relied in particular on two decisions of the Employment Appeal Tribunal regarding the long since repealed statutory dispute resolution procedures, which have no direct application to his situation. His complaints are not well founded.[141]Turning then to Mr Breda de Moraes, his grievance of 10 May 2021 is at pages 622 – 626 of the Hearing Bundle. He asked the Respondent in his Grievance to “observe the ACAS Guidelines”. He went on to raise concerns that he had been bullied and harassed. The process was delayed as a result of his ongoing sickness absence, with a decision eventually issued on 13 October 2021. Mr Breda de Moraes seemingly did not appeal the outcome. At this stage, of course, he had yet to make a protected disclosure.[142]He and Mr Munro-Henworth raised a joint grievance on 18 October 2021, (pages 1,163 – 1,172 of the Bundle). It has the appearance of having been crafted by Mr Munro-Henworth, as the tone and content reflect his other grievances. It was directed at Mr Tully in highly personal and hostile terms. It reflects poorly upon the Claimants that they saw fit to submit the grievance in the terms they did. The letter has to be read in its entirety in order for its full impact to be felt, though in isolation paragraphs 24 – 28 give some flavour of their approach, accusing Mr Tully, who had provided an entirely appropriate response to Mr Breda de Moraes’ grievance, of being complicit in acts of workplace mobbing and stating that he would be held personally liable in the matter. It was unattractively expressed.[143]The joint grievance refers in the most general terms to breaches of the ACAS Guidelines amongst other numerous alleged contraventions. Whilst there is a reference to the ACAS Code of Practice at paragraph 53 of the joint grievance, the reference in question which is to “these passages in the Code of Practice”, immediately follow a passage from the House of Lords decision in Archibald v Fife Council [2004], which itself only makes reference to the Disability Discrimination Act 1995. The letter concludes with a section headed, “New Grievances”. Putting aside whether the letter did in fact raise any new matters, none of the grievances identified in paragraphs (a) – (k) of that section pertain to the ACAS Code of Practice. Any complaint in relation to this further aspect is not well founded. Issue 3.1.12 – Omission to protect occupational health and well being[144]Paragraphs D19 and D20 of the Detriments Table suffer from the same lack of focus we have referred to a number of times in the course of this judgment. In the written further particulars submitted by him on the second day of the final hearing, Mr Edmonds refers to Mr Jones’ alleged conduct, to the findings of the disciplinary investigation (we assume he means the disciplinary hearing), and to the “danger” that Mr Jones constituted to the Claimants’ health and wellbeing.[145]The Claimants have not pursued any direct claims in reliance upon Mr Jones’ alleged treatment of them. There is no complaint, for example, that Mr Jones subjected either Claimant to harassment related to their disabilities.[146]Beyond the Claimants’ broad assertions in the matter, we are left with little, if anything, to go on in terms of the steps it is said the Respondent ought reasonably to have taken to protect the Claimants’ health and wellbeing but failed to take, who was responsible for any failures and why this was because the Claimants made protected disclosures.[147]The Claimants have failed to establish even basic facts to support their complaints; they are not well founded. Issue 3.1.13 – Information gathered in one process not extended to other processes[148]The complaint is described in paragraph D22 of the Detriments Table as follows, “The Respondent’s repeated omissions of imputed knowledge and evidence within its disciplinary and grievance processes constituted detrimental treatment of both Claimants for making protected acts and amounted to unlawful harassment and victimisation.” (see page 491 of the Bundle),[149]We regret to say that we simply do not understand the complaint expressed in terms that there were “repeated omissions of imputed knowledge and evidence”. We cannot readily identify where the matter is addressed within either Claimant’s witness statement. We agree with Mr Bownes’ submissions in the matter. It is not for the Respondent to make the Claimants’ case for them, or to reach into the voluminous documents and other processes to find evidence, or to discern what they might mean.[150]The grievances evidence that the Claimants were well able to express their concerns and state their case, and to bring relevant evidence or materials to the Respondent’s attention. They have failed to identify any information that may not have been extended to another process or why they consider that they were disadvantaged in the matter. Their complaints are not well founded. Issue 3.1.14 – Omission to investigate grievances[151]The Claimants assert that the Respondent omitted to investigate their grievances.[152]As a broad assertion it does not stand up to scrutiny, since the grievance and grievance appeal outcome letters of 13, 20 and 26 August 2021, 13 October 2021, 7 and 15 December 2021 and 4 April 2022 all evidence that the grievances and appeals were considered and determined, with the Respondent’s officers providing the rationale for their decisions at each stage. The decision letters plainly evidence that the grievances were investigated. Neither Claimant has identified any particular aspects of their grievances which they say went uninvestigated. No further particulars have been provided by Mr Edmonds. It is not for the Tribunal to undertake a detailed comparison between the grievances / grievance appeals and the decisions issued in respect of them with a view to identifying any potential gaps. It is for the Claimants to put forward a case and support it with evidence.[153]The Claimants have the burden of establishing the primary facts and have failed to discharge their burden in the matter, let alone begun to address why they infer that any alleged shortcomings in the investigation were because they made protected disclosures. The complaints are not well founded. Issue 3.1.15 – Prematurely ending secondment with false reasons[154]On 3 January 2021, Mr Jones wrote to Mr Carré and Mr Blair requesting a meeting to discuss the Markets team dynamic. He wrote, “With regards to Guy I cannot have him in the team any longer. I am expecting the appropriate action to be taken and believe that suspension is warranted. Failing that to end his secondment with immediate effect.” (page 2.363 of the Claimants’ Bundle)[155]For the reasons already set out, Mr Munro-Henworth’s suspension was warranted, as was the final written warning that was issued to him. Given the allegations levelled by Mr Munro-Henworth against Mr Jones, albeit which had then yet to manifest as grievances, Mr Jones was conflicted both in terms of any decision to suspend Mr Munro-Henworth and as regards his ongoing secondment into the Markets team. If he expressed his views in the matter somewhat strongly to his managers, it is understandable in the context of Mr Munro-Henworth own much more strongly worded criticisms of him. Mr Jones’ comments stand in marked contrast to what Mr Munro-Henworth was saying about him and his ability to remain in post. In the context of how Mr Munro-Henworth was conducting himself at the time, we do not think any reasonable worker would regard themselves as disadvantaged in terms of Mr Jones’ own comments in the matter, which were at least communicated through appropriate line management channels rather than outside the Council as Mr Munro-Henworth had done.[156]Subsequently, on 26 February 2021, Mr Blair informed the Claimant in the course of the meeting that he might have to review the secondment if the team could not work together. On 20 March 2021, Mr Munro-Henworth emailed Mr Prinsep asking if he had heard anything from Mr Blair regarding an extension to his secondment (page 1,527 of the Bundle). He does not say in his witness statement whether he received any response.[157]On 19 April 2021, Mr Carré emailed Mr Munro-Henworth to say that he would like to arrange a meeting with him to discuss the secondment, subject to Mr Munro-Henworth being well enough to engage. He proposed a meeting the following day. Mr Munro-Henworth responded to say that he was not well enough to attend the meeting. In paragraph 436 of his witness statement, he says that assurances had been given in February that year that the secondment would be extended and that he discovered in March that this had not been actioned. He fails to identify who he says was responsible for this state of affairs.[158]Mr Carré followed the matter up on 26 April 2021 when he proposed a call the following day (page 1,852 of the Bundle). During that call he apparently explained that the intention was to open a permanent post and recruit into it. He confirmed the position in writing. His letter in that regard is at pages 1,869 – 1,870 of the Claimants’ Bundle. He noted in his letter that the secondment had been due to end on 31 March 2021 but was to be extended to 27 June 2021, namely two months from their call, at which point Mr Munro-Henworth would return to his substantive post in Human Resources. He expressed his appreciation for Mr Munro-Henworth’s support and hard work, particularly when acting up to cover Mr Jones’ absence and in managing the re-opening of the market. He went on to confirm that the Council would recruit to the post of Markets and Street Trading Officer. He did not state in terms that Mr Munro-Henworth would be able to apply for the role but neither did he suggest that it would not be open to him to apply. Mr Munro-Henworth states that the formal confirmation was upsetting and furthered his belief that he was being punished. Given his propensity for correspondence with the Respondent, it would have been a very simple matter for Mr Munro-Henworth to have sought clarification as to his ability or otherwise to apply for the role. Indeed, although he does not refer to this in his witness statement, it seems that he informed Mr Carré that he would apply for the post. There is no further evidence before us as to whether or not he applied for the role.[159]In the course of reading correspondence in relation to Mr MunroHenworth’s grievance appeal, we note that he alleged in a Subject Access Request submitted to the Respondent that he had been lied to regarding the reasons why the secondment had been brought to an end. However, any further details have not been made available to us. We are not in a position to make any findings in the matter in the absence of evidence about it. However, if the suggestion is that the secondment was ended in order to address dysfunction within the Markets team, rather than for business reasons (if different), that falls some way short of a positive case that the secondment was ended because Mr Munro-Henworth made protected disclosures. The complaint is not well founded. Issue 3.1.16 – Refusal to adjust and find posts[160]This complaint relates to how Mr Breda de Moraes’ situation was dealt with. There are two complaints: firstly, that the Respondent refused to make reasonable adjustments; and secondly, that the Respondent failed to find Mr Breda de Moraes a suitable post during the dispute resolution period. No further particulars have been provided by Mr Edmonds.[161]Mr Breda de Moraes refers to the need for adjustment in his witness statement, accusing the Respondent of failing to discharge its duties to him under the Equality Act 2010. He has not pursued any claim against the Respondent pursuant to s.15 or s.20 / 21 of the Equality Act 2010. Instead, the alleged failure to make adjustments is said to be because he made protected disclosures. Whilst it is a slightly curious route by which to pursue a complaint in respect of an employer’s alleged failure to implement reasonable adjustments, it is undoubtedly one that is open to him.[162]On 23 July 2021, Mr Breda de Moraes requested as a reasonable adjustment that the grievance and whistleblowing processes should be conducted in writing. He made two other requests of the Respondent but neither was linked to his disability and as such are not within the ambit of his complaint that the Respondent failed to discharge its duties to him under the Equality Act 2010 because he made protected disclosures. The request to conduct the process in writing was agreed to by Mr Tully a few days later (see page 887 of the Bundle), in which case the complaint does not get off the ground. In any event, Mr Breda de Moraes made his one and only protected disclosure some months later, so it cannot have influenced the Respondent’s treatment of him at that time.[163]Mr Breda de Moraes alleges that an Absence Review Meeting went ahead on 11 August 2021, “with no effort to conduct the process in writing”. The meeting record he purports to rely upon (at page 2,221 of the Bundle), indicates otherwise, namely that he had been offered the option of making written submissions rather than attending by Teams or in person. We prefer the contemporaneous written record, in which case his complaint in this regard is not well founded. In any event, this further matter complained of also pre-dates his protected disclosure.[164]As regards his redeployment, at paragraph 184 of his witness statement, Mr Breda de Moraes states that it was HR’s responsibility to either move him to a new role or, as he preferred, to make appropriate adjustments to enable him to return to his substantive role. He complains that the Respondent ignored his suggestion of a seconded role. However, as we shall come back to shortly when we examine his dismissal, his complaints regarding how the matter was handled by the Respondent do not accord with the contemporaneous documents. But in any event, there is nothing whatsoever to suggest or from which we might infer that the way in which his ongoing absence was managed by the Respondent up to and including his dismissal, was informed in any way, let alone materially influenced, by his qualifying disclosure on 18 October 2021.[165]Dr Wilson was not questioned by Mr Edmonds as to whether she was specifically aware of that disclosure and if so, her thoughts on it and whether it might have informed or influenced her decision to terminate Mr Breda de Moraes’ employment. The only evidence that emerged on the issue was that she was aware that there had been disclosures, but not the detail of them. As with the Respondent’s other witnesses, Mr Edmonds directed a number of his questions to messages passing between Ms Simpson and an unidentified individual, believed by the Claimants to be Ms Hemingway, on 31 December 2020 and 4 January 2021. Their exchange, which is at page 2465.1 of the Claimants’ Bundle, does not warrant adverse inferences being drawn in relation to Dr Wilson or Ms Caranese. As long as we are satisfied, which we are, that they acted independently of others in the matter, then ultimately we are solely concerned with what informed or influenced their actions and decisions in relation to Mr Breda de Moraes rather than with how others may have felt about the Claimants in light of their disclosures. If it was Ms Hemingway who suggested to Ms Simpson that Mr Munro-Henworth and possibly Mr Breda de Moraes should be “taken out of the picture for a limited period” pending an investigation, she seems to have been advocating their suspension. That falls some way short of material from which we might infer that there was an agenda at a senior level within the Council to secure Mr Breda de Moraes’ removal altogether. Be that as it may, as he had not then blown the whistle. Whatever Ms Hemingway’s intentions may have been, assuming for these purposes that she did indeed make the comments attributed to her, this was not detrimental treatment of Mr Breda de Moraes because he was a whistleblower.[166]No further action was taken against Mr Breda de Moraes notwithstanding as we say that he was guilty of serious misconduct. That does not suggest to us an employer with an agenda, or which was inclined to retaliate against whistleblowers.[167]There is a significant weight of contemporaneous evidence to support that the Respondent went the extra mile in relation to Mr Breda de Moraes and that potentially suitable posts were identified for him which he failed to progress. Whilst the essential primary facts in support of this complaint have not been established, there are no grounds in any event for us to infer that the absence management process was materially influenced by Mr Breda de Moraes’ disclosure to Mr Tully in October 2021. We return to this in a little more detail below. Issue 3.1.17 – Refusal to pay the second claimant’s salary[168]D25 of the Detriments Table clarifies that the complaint is that the Respondent failed to maintain Mr Breda de Moraes on his full normal salary throughout his sickness absence in circumstances where he was absent from work as a direct result of its alleged failure to provide a safe working environment for him.[169]The complaint is legally misconceived. If Mr Breda de Moraes experienced financial losses as a result of other detrimental treatment in contravention of s.47B of the Employment Rights Act 1996, that is a remedy issue. However, we have not upheld any of his s.47B complaints, in which case any loss of pay was not because he was subjected to detrimental treatment as a whistleblower. The Respondent did not maintain Mr Breda de Moraes on full pay because he was on long term sick leave and had exhausted his right to paid sick leave. There is no evidence before the Tribunal, nor indeed any suggestion by Mr Breda de Moraes, that discretion was exercised by the Respondent in relation to others on long term sick leave, and that Mr Breda de Moraes was singled out for different treatment as a whistleblower. Nor is there any suggestion that Mr Breda de Moraes was paid other than in accordance with the Respondent’s organisational sick pay arrangements set out in Appendix 1 of its Sickness Absence Management Policy and Procedure.[170]The complaint is not well founded. Constructive Dismissal[171]In terms of whether Mr Munro-Henworth was constructively dismissed, he has failed to establish the primary facts to support most of his s.47B complaints. The only matters that potentially fall to be considered are his suspension and the ensuing final written warning, together with whether the payment issues encountered in early 2021 amounted a repudiatory breach of contract on the part of the Respondent and, if so, whether Mr Munro-Henworth resigned in response to those matters without having affirmed the contract.[172]For all the reasons set out already, the Respondent acted with reasonable and proper cause when it suspended Mr Munro-Henworth and thereafter issued him with a final written warning. In which case it did not breach the implied Malik term of trust and confidence. As regards the payment issues in 2021, the payments in question did not form part of Mr MunroHenworth’s regular monthly salary. Instead, they were in respect of additional hours and weekends that needed to be recorded, notified and agreed in order to be paid. There seems to have been no clear established process in that regard, so we can readily understand why payments might have been overlooked. Whilst it is perhaps unsatisfactory that Council employees should have to alert the Council to the fact they have worked in excess of their contracted hours, and then chase for timely payment, we do not consider that any delays here were destructive of trust and confidence. As we have said when we considered Issue 3.1.7 above, the most likely explanation for the initial delay was that Mr Jones was on sick leave. Once Mr Munro-Henworth escalated the issue to Mr Blair and Ms Donnelly on 18 March 2021 with the necessary information to support his claim, it was reasonably promptly resolved.[173]There is nothing in Mr Munro-Henworth’s email of 14 March 2022 in which he resigned his employment to indicate that pay issues were a factor in his resignation (page 2,087 of the Bundle). He did not raise any pay concerns in his 19 May 2021 grievance, which was focused instead on his suspension, nor were any pay issues raised in his second 16-page grievance of 18 July 2021, or in his third 27-page grievance of 26 July 2021.[174]In any event, we would have said that Mr Munro-Henworth affirmed the contract by continuing in the Respondent’s employment for effectively a year after the pay issues arose and were resolved. He did not, as we say, raise a grievance about the matter. Nor did he inform the Respondent that he was reserving his rights in the matter, even assuming this might have been legally effective to prevent a waiver and affirmation. Instead, he continued to work for the Respondent and to be paid, and to avail himself of his rights as an employee, including his right to raise grievances and to pursue an appeal against the final written warning. All of which things in our judgement signalled his commitment to the relationship, even if he had other multiple (ultimately unfounded) concerns.[175]Mr Munro-Henworth’s complaint that he was unfairly constructively dismissed is not well founded. Unfair Dismissal[176]Turning finally to Mr Breda de Moraes’ unfair dismissal complaint.[177]By the time he was dismissed, Mr Breda de Moraes had been absent on sick leave for just over 18 months. On any view that is a significant period of time. He had been paid organisational sick pay for the first 12 months’ absence, at which point he had exhausted his right to sick pay.[178]The Respondent secured at least three occupational health reports in relation to Mr Breda de Moraes, the last of which was dated 4 July 2022, meaning that the Respondent had up to date information available to it about his health when consideration was given to whether he should be dismissed. Mr Breda de Moraes’ position at Tribunal was that he should have continued in the Respondent’s employment on full pay until the conclusion of these proceedings. We think he has unrealistic expectations in the matter. As Mr Bownes observed in his submissions, the Respondent is a Local Authority employer which is accountable for its use of public money.[179]Dr Janas, the Occupational Physician who assessed Mr Breda de Moraes in July 2022 noted that until he felt reassured that he would receive adequate support in the workplace, he would remain unfit for work (pages 2244 and 2245 of the Claimants’ Bundle). She could not ascertain a likely return to work timeframe, which was dependent upon the resolution of Mr Breda de Moraes’ work related concerns. However, his 10 May 2021 grievance had not been upheld, which outcome he had not appealed. The joint grievance of 18 October 2021 was likewise not upheld, including on appeal. Which begs the question how Mr Breda de Moraes’ concerns were going to be resolved if he was unwilling to accept resolution other than on his terms.[180]Re-deployment or secondment were identified as potential viable options for resolving the situation, rather than Mr Breda de Moraes remaining within the Markets team. Dr Jans initially said that this would need to be discussed with Mr Breda de Moraes, though later in the report she noted that this had in fact been explored, with Mr Breda de Moraes complaining of feeling insufficiently supported in the process. Dr Janas stated that there was no medical intervention that would likely remedy his perception of the work situation. She concluded that he was not a candidate for ill health retirement as his work related stress was of a situational nature.[181]We are satisfied that Mr Breda de Moraes’ sickness absence was handled in accordance with the Respondent’s documented Sickness Absence Management Policy and Procedure, even if the formal meetings under the Policy were conducted on paper rather than by way of a face to face meeting; this was Mr Breda de Moraes’ choice in the matter, for which the Respondent is not to be criticised. The initial Stage 1 meeting was only triggered after Mr Breda de Moraes had been absent for over three months. The Respondent’s procedure allows for a Stage 1 meeting after just three weeks’ absence. There is no proscribed timeframe within which a Stage 2 meeting will or may be convened, save that this will be where an employee’s attendance continues to cause concern. In this case the Stage 2 meeting took place on 11 October 2021 and was conducted in writing as a reasonable adjustment for Mr Breda de Moraes.[182]In accordance with the Sickness Absence Management Policy and Procedure Mr Breda de Moraes was referred for an occupational health assessment following the Stage 2 meeting. Thereafter, Ms Caranese met with Mr Breda de Moraes on 24 January 2022 by Teams when they discussed the assessment, amongst other things. Their meeting effectively represented an additional stage in what is otherwise a threestage process. At the point at which they met in January 2022, the Respondent had responded to Mr Breda de Moraes’ grievance of 10 May 2021 and the joint grievance of 18 October 2021. The Respondent was also in possession of an occupational health assessment dated 21 December 2021, to inform its discussions with him.[183]By 24 January 2022 Mr Breda de Moraes had been absent from work for in excess of nine months. It cannot realistically be suggested that the Respondent was acting prematurely in seeking to discuss his ongoing absence with him.[184]Ms Caranese’s letter to Mr Breda de Moraes of 27 January 2022, following their meeting, sets out the background in some detail and is instructive. She noted that the December 2021 occupational health assessment had identified that Mr Breda de Moraes remained embittered towards the management of his current job and would remain unfit to return to the job until the workplace issues and his embitterment were resolved. It seems from her letter that Mr Breda de Moraes’ own GP had advised that consideration should be given to re-deploying him. In other words his own GP whose professional duty it was to promote his best interests, was advocating re-deployment away from the Markets team. Ms Caranese noted that Mr Breda de Moraes had confirmed that he could not go back to his role, nor work under Mr Jones, Mr Blair or Mr Carré. Accordingly, even had the Respondent upheld his grievances against Mr Jones, some form of re-deployment, whether that be secondment or otherwise, would still have been the only option reasonably available to the Respondent in the face of Mr Breda de Moraes inability to work with all three named individuals.[185]In any event, Ms Caranese recorded in her letter that it had been agreed between herself and Mr Breda de Moraes that the, “best solution was to place you in the re-deployment pool with immediate effect.” (page 2,210 of the Bundle)[186]They agreed to meet again in the week commencing 28 February 2022, though Mr Munro-Henworth subsequently wrote to Ms Caranese to say that Mr Breda de Moraes would not in fact attend that meeting. We can well understand why Ms Caranese felt that this was inhibiting the way in which she could assist Mr Breda de Moraes. Indeed, by 17 August 2022 she was expressing concerns as to the tone and content of the ongoing correspondence, something we can well understand given the tone of other correspondence we have seen in the bundles.[187]In her witness statement, Dr Wilson says that when dealing with Mr Breda de Moraes’ at Stage 3 of the absence management procedure, she “found herself in a very adversarial space” particularly because the written submissions she received were lengthy and combative in tone. From our own observation of the extensive documentation in this case, we can equally understand why she perceived the submissions to be unhelpfully combative. The picture that ultimately emerges is that Mr Breda de Moraes fell out with everyone who was involved with his case. As we have said, Mr Breda de Moraes had agreed with Ms Caranese in January 2022 that he should be placed in the re-deployment pool. However, we accept Dr Wilson’s evidence that he failed to engage meaningfully in the re-deployment process, something Dr Janas was not privy to. We find that Mr Breda de Moraes became increasingly entrenched and embittered and that his feelings of embitterment were likely reinforced by Mr MunroHenworth who was prone to write equally combative and entrenched letters on their behalf.[188]Mr Breda de Moraes’ email to Dr Wilson on 22 September 2022 is illustrative of the difficulties that Dr Wilson encountered. She had asked Mr Breda de Moraes what might enable him to return to work but was met instead with a series of questions spanning two pages before he then went on to criticise the re-deployment process complaining that he was being offered menial roles without however engaging specifically with two roles that had been identified but not taken forward by him. We see in his email an inclination or propensity to be dissatisfied rather than to give active and objective consideration to potential roles that had been identified for him, or to work to find some other solution. In paragraph 171 of his witness statement, Mr Breda de Moraes identifies five roles, none of which he says were appropriate to his skill set. He did not tell Dr Janas that the roles were menial or inappropriate, instead he told her that the re-deployment process was too tiresome and stressful and complicated. In his witness statement Mr Breda de Moraes provides a further different explanation. He says, “I wanted to continue in my job, it was Tim who was the problem”.[189]Yet as we have identified already, he was unwilling to engage in mediation with a view to restoring their working relationship. His complaints to Dr Janas and the assertions in his email to Dr Wilson of 22 September 2022, do not tally with his own stubborn inaction in the matter. In short, there was a disconnect between what he said and did (or failed to do). His failure to attend the follow up meeting with Ms Caranese planned for late February 2022 is illustrative of the point. Likewise paragraph 184 of his witness statement, which is heavy on assertion but light on hard facts to support his assertions. In paragraph 186 of his witness statement, Mr Breda de Moraes acknowledges that he was provided with the detail of an Assistant Housing Officer role and that, by way of an adjustment for him, he was informed he could submit an expression of interest rather than a full application. He has provided no explanation as to why he failed to progress this opportunity or take up Victoria Jameson’s suggestion that he have a conversation with the recruiting manager, something she had offered to facilitate.[190]We conclude that whether consciously or otherwise Mr Breda de Moraes was looking for a reason not to engage. His lengthy response to Dr Wilson’s email of 23 September 2022 (at page 2,362 onwards of the Bundle) reinforces the point. He was not looking for a resolution but instead a reason to complain and resist.[191]The Respondent has amply satisfied us that Mr Breda de Moraes was dismissed for incapability (long term absence) rather than because he made a protected disclosure. In our judgement, the Respondent through Dr Wilson acted reasonably when it decided to terminate Mr Breda de Moraes’ employment on grounds of incapability. It could not reasonably be expected to wait any longer for him to return to work in circumstances where it had offered him a reasonable opportunity, namely several months to explore opportunities for re-deployment.[192]Even if the Respondent could have been said to have some culpability in the matter, either by reason of Mr Jones or others’ alleged conduct or because of how any concerns were handled, we are satisfied that the Respondent went the extra mile, notwithstanding Mr Breda de Moraes was entrenched, embittered and ultimately unco-operative.[193]Given that he remained entrenched, embittered, unco-operative and unwilling to engage constructively with the Respondent, in our judgement there was nothing more the Respondent could reasonably be expected to do. As Dr Wilson says, she could not establish with Mr Breda de Moraes whether there were any blocks that the Respondent could do anything about in relation to him engaging in the process. The decision to terminate Mr Breda de Moraes’ employment was confirmed in an email to him dated 3 October 2022 (pages 2,393 – 2,394 of the Bundle).[194]In our judgement Dr Wilson reasonably had regard to Mr Breda de Moraes’ continued absence, including the length of time he had been absent, his perceived lack of engagement with the re-deployment process and the breakdown in relationships which precluded a return to his substantive role within the Markets team. Critically, she consulted Mr Breda de Moraes and was guided in her final decision by medical and occupational health advice. Ill health retirement was not an option. We cannot see on what basis it could be suggested that Dr Wilson unreasonably concluded that it was unlikely that Mr Breda de Moraes could return to work within a reasonable time frame. It is clear from the bundles and Dr Wilson’s evidence, which we accept, that she had addressed her mind to the range of factors in paragraph 8.10 of the Sickness Absence Management Policy and Procedure. It is telling in our judgement that Mr Breda de Moraes did not pursue an appeal against his dismissal, notwithstanding he says he was treated unfairly in the matter. In our judgement his complaint that he was unfairly dismissed by the Respondent is not well founded.[195]For the detailed reasons we have given, the Claimants’ various complaints are not well founded. Their claims shall be dismissed in their entirety. Approved by: