Mr N Avramov v BAM Construct UK Ltd and Silver Blaze Ltd T/a Silver Blaze Construction: 3315178/2020 and 3206301/2021
EMPLOYMENT TRIBUNALS
Case No 3315178/2020, 3206301/2021
Between
Mr N AvramovClaimantBAM Construct UK Ltd and Silver Blaze Ltd T/a Silver Blaze ConstructionRespondent
Before
Employment Judge G TobinIn person for claimantDate 13 October 2025
JUDGMENT
AND SUMMARY OF PRELIMINARY HEARING (OPEN) The Judgment of the Tribunal is that the claimant’s claims or allegations as follows have little reasonable prospect of success and are subject to a deposit order of £400.00 each:[1]The allegation that the first respondent automatically unfairly dismissed the claimant in breach of regulation 7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006;[2]The allegation that the first respondent failed in its duty to inform and consult representatives in breach of regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006;[3]The allegation that the second respondent failed in its duty to inform and consult representatives in breach of regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006.
REASONS
This has been a remote hearing which has been agreed to by the parties. The form of remote hearing was by a video hearing through HM Courts & Tribunal Service Cloud Video Platform. The parties were remote and only the Judge was present at the Hearing Centre. A face-to-face hearing was not held because of the coronavirus pandemic and the ensuing Government restrictions. The relevant matters could be determined in a remote hearing.
The hearing
Introduction
[1]This Preliminary Hearing (Open) was ordered by Employment Judge Lewis on 21 June 2021. The issues to be decided were as follows: To consider if any claim be struck out, or made subject to a deposit order on grounds of hearing [sic] little or no prospects of success. Case manage the hearing.[2]The first thing yesterday morning, the claimant’s solicitor informed the Tribunal that he no longer represented the claimant in this matter. I am not clear when the first respondent provided the 64-page Preliminary Hearing Bundle to the claimant, but this appears before the second respondent served his skeleton argument on all parties, including the Tribunal, early lunchtime yesterday, the lateness of which troubled me. The hearing was slightly delayed because the first respondent served some additional documents and a draft list of issues even later at the end of yesterday afternoon (I received my version just before 10am this morning). I note that there were no orders breached, but both respondents are professionally represented and the provision of important documents to an unrepresented party so late before an important hearing is not acceptable behaviour from either respondent representative, but especially from the first respondent. The Tribunal expects the disclosure of documents and/or submissions in a timely manner, particularly when a claimant is self-representing. The first respondent draft list of issues was perfunctory and the claimant said that he had not had time to engage with this important document.[3]At the hearing, I expressed my concern about this conduct emanating from both respondent’s representatives, which I now record for future reference. The respondents are dealing with a self-representing litigant and principles of fairness establish that he should not be taken by surprise by any late disclosure. As well as being discourteous, this could preclude a fair hearing. I warn both respondents not to repeat this behaviour. Do not disclose material at the last minute (metaphorically). Late disclosure means the Tribunal has to assess whether a self-represented litigant has been placed in a position that might preclude a fair hearing. These additional enquiries are time-consuming. Both the default and the Tribunal’s inevitable response is unsettling for an individual not used to legal proceedings. The Tribunal may take strong action against both respondents and/or their representatives if this re-occurs.[4]The claimant said that he has read the initial Preliminary Hearing Bundle and I note that most of these documents should be familiar to him. He did not contend that he had been placed at a significant disadvantage by the second respondent’s late submissions and he made no application for an adjournment. However, the claimant said he had not had time to properly consider the implications of the additional documents and I note that one of these 5 documents is a 2009 contract apparently signed by him. There are documents in the additional bundle that he may not have seen.[5]I did not permit consideration of the additional documents, which were served very late on an unrepresented party. I also determined that I would not consider striking out the claimant’s claim today because there was a material change in circumstances from the order of Judge Lewis (the late withdrawal of the claimant professional representative followed by the respondent’s late provision of documents/submissions). The claimant did not object to my proposal to deal with the deposit order. The claimant argued his position forcefully and I took some considerable time in going through the relevant factual and legal questions and I explained the appropriate legal tests. I determined that I could ensure a fair hearing for the claimant. Not hearing the strike out issue, was a proportionate response, pursuant to the overriding objective of rule 2, so that, on balance, I could deal with key issues and make some progress with the case.[6]At the start of proceedings, I confirmed that everyone had the same documents, i.e. the 64-page Preliminary Hearing Bundle and the second respondent’s submissions. I confirmed that I had received the hearing bundle the day before and (unusually) I had time to read through the hearing bundle in advance of this hearing, so I was familiar with most of the documents. I also read the second respondent’s submission and confirmed with the parties that there were no other written submissions, or documents from the claimant, outstanding. Clarification of proceedings[7]At the outset the claimant confirmed that he made the following claims: i. Ordinary unfair dismissal in respect of his unfair redundancy dismissal ii. A claim for a redundancy payment iii. Direct race discrimination in respect of his selection for redundancy iv. Automatic unfair dismissal in terms of his selection for redundancy for a TUPE reason (and the claimant contends that there was no economic, technical or organisational reason to justify his dismissal). v. Protective award because the redundancy situation affected approximately 150 members of staff. vi. Failure to inform and consult representatives in respect of TUPE.[8]Both of the respondent’s representatives confirmed that there were no time limit issues in respect of any of these claims and that all of the claims were disputed.[9]The claimant confirmed that he made only one claim made against the second respondent; this is in respect of claim 7(vi) above, although this claim requires a finding that, in fact, a TUPE transfer had taken place so. For the avoidance of doubt claim 7(vi) is also made against the first respondent.[10]So far as the claim of direct race discrimination and the claimant’s protected characteristic, Mr Avramov described himself as white of Bulgarian ethnic origin (although he was keen to emphasise that he is a British citizen).[11]The claimant confirmed that paragraph 6 of the details of complaint does not contain any additional claims. This was included in his grounds of claim, I am informed, for “background information” only. For future reference, the respondents need not address these allegations, they are not relevant to any issues that need to be determined. The law in respect of deposit orders[12]Rule 39 of the Employment Tribunals Rules of Procedure, Schedule 1 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 deals with deposit orders:(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.(2) The Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.(3) The Tribunal's reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order.(4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21.(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded.(6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.[13]Rule 39(1) therefore provides a power for targeted case management that is likely to discourage parties (i.e. the claimant in this case) from pursuing weak claims or weak elements in their case.[14]In Hemdan v Ishmail and anor 2017 ICR 486, EAT, Mrs Justice Simler (President of the Employment Appeals Tribunal) observed that the purpose of a deposit order was to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs if the claim failed. That was legitimate policy, because claims or defences with little prospect caused unnecessary costs to be incurred and time to be spent by the opposing party. They also occupied the limited time and resources of Tribunals that would otherwise be available to other litigants. However, the purpose was not to make it difficult to access justice or to effect a strike-out through the back door. Indeed, the requirement to consider a party’s means in determining the amount of a deposit order (at rule 39(2)) was inconsistent with that being the purpose. It was essential that when a deposit order was deemed appropriate it did not operate to restrict disproportionately the fair trial rights of the paying party, or impair access to justice. Accordingly, an order to pay a deposit had to be one that was capable of being complied with. A party without the means or ability to pay should not be ordered to pay a sum that he was unlikely to be able to raise.[15]The threshold for making a deposit order is that the Tribunal (i.e. me) must be satisfied that there is ‘little reasonable prospect’ of the particular allegation or argument succeeding. This is different from the criterion for striking out a case under rule 37(1)(a) on the ground that the proceedings have ‘no reasonable prospect of success’. There must a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response: Jansen Van Rensburg v Royal Borough of Kingstonupon-Thames and ors EAT 0096/07.[16]In respect of the amount of the deposit, this should reflect the party’s means. The deposit should be high enough to stand as a warning that, at this preliminary stage, I assess the claimant is advancing or attempting to advance weak claims, i.e. some allegations that upon my preliminary review, I assess as having little reasonable prospect of success.[17]In Adams v Kingdom Services Group Ltd EAT 0235/18 the EAT held that an Employment Tribunal must give reasons for setting the deposit at a particular amount. In the EAT’s view, the requirement to give reasons for ‘making’ the deposit order under rule 39(3) includes a requirement to give reasons not only for making the order at all but also for the particular amount to be paid. The claimant’s dismissal[18]Despite the open intention of Judge Lewis’s intended assessment, the first respondent had not prepared for a review of the core feature of these proceedings – whether or not a dismissal had occurred. This is disappointing and does not assist the Tribunal with the overriding objective. The claimant’s case as set out in his grounds of complaint is, essentially, that he was employed as a carpenter, he was told that his job was at risk of redundancy and then without proper warning his job was then changed to a Fabric Engineer (possibly located somewhere else) with a huge reduction in wages. The claimant explicitly contended that he was not consulted about this change and such changes were unilaterally imposed upon him without any fair procedure or right of appeal. The first respondent’s Response sets out a completely different version of events, which it detailed at paragraphs 4 to 13 of the grounds of resistance. This paints a picture of informing and consulting with the claimant over possible redundancy and it explicitly states that the claimant pursued the Fabric Engineered role – twice and on both occasions voluntarily.[19]On the basis of the pleadings I cannot see where a dismissal is contended to have occurred. That was clearly the point of Judge Lewis ordering this Preliminary Hearing, because its parameters are so wide. The claimant said that his former solicitor told him that he had been dismissed when the first respondent compelled him to take another role. The claimant confirmed that he did not think that there was any dismissal letter and that he did not treat himself as constructively dismissed following this unilateral change to his terms of employment. The situation is even more perplexing because the claimant informed me at the hearing that he was finally dismissed on 4 June 2021 and that he is pursuing a claim of unfair dismissal (and possibly more) in respect of this later occurrence. He quoted a reference number to me for a claim which appears to have been electronically submitted by his trade union solicitors. The claimant said that he thought his earlier dismissal was a “legal dismissal” and that he had been dismissed again 4 months ago so as to end his employment. As a matter of law, if the claimant has been dismissed earlier, then he does not have the continuity of service to make any further claim of unfair dismissal. Anyway, on his own argument, I cannot see how the claimant’s case stacks up in respect of these proceedings.[20]The first respondent’s position is equally unfathomable. Ms Meenan referred to paragraph 32 of the grounds of resistance which accepted that the claimant was dismissed and says this was for reason of redundancy. When I queried this Ms Meenan said that it was a Hogg v Dover College [1990] ICR 139 situation. This equally does not make sense because the respondent’s case set out from paragraphs 4 to 13 is diametrically opposed to a Hogg v Dover case and seem to contend that no dismissal, in fact, occurred.[21]I asked that Ms Meenan to review the documents carefully and clarify the respondent’s position, both to the claimant and to the Tribunal. If the factual matrix set out in the first respondent’s grounds of resistance is not accurate then the first respondent will need to apply to amend is Response and also explain why such a key document had be submitted when it was not correct. If the first respondent’s solicitors merely misunderstood the law, then this can be corrected in correspondence (to the other parties and the Tribunal) and that does not require a formal application to amend. In any event, the current position is not satisfactory and will need to be addressed. Ultimately, there may need to be a further Preliminary Hearing (Open) in respect of the dismissal issue. The TUPE issue[22]The claimant did not produce any documents that supported his contention that a TUPE transfer occurred. He said he did not really understand the complex law in this regard, but as a colleague and his former solicitor told him that as he had been replaced by someone from the second respondent contractors for carpentry work it must be in breach of TUPE Regulations. That is not the legal test and TUPE protection only applies, briefly, if the claimant was part of a business entity which transfers, without losing its identity, from the first respondent to the second respondent. Mr Shepherd took us through his clear (and concise) written submission. In particular: i. At pages 55-56 of the Preliminary Hearing Bundle there was a contract between the first respondent and the second respondent for the supply of various workers at the King’s Cross construction site. This contract was to supply various self-employed workers and had been put in place 2 years before the events in question. ii. Mr Shepherd contended that there was no transfer of assets, carpentry service, etc such as to identify a business entity had transferred between the first respondent to the second respondent or to anyone else of carpentry services. I am mindful that the claimant has the burden of showing that a business transfer occurred, and he said they he could not produce and documents or other evidence in this regard. iii. The project surveyor confirmed, at page 64 in the Preliminary Hearing Bundle, that the second respondent was engaged to provide labour supply for project delivery and specifically they were not employed as a subcontractor. The first respondent has retained the overall contract. iv. Mr Shepherd submitted that the workers supplied under the aforementioned contract were under the supervision of the first respondent and, if necessary, he would adduce evidence in this regard. Certainly, that position is consistent with the documents in the hearing bundle. There is no evidence available to dispute this and the claimant could not identify any document that he has that might dispute the second respondent’s assertion. v. There is a document at page 63 that evidences that no carpenters (as opposed to other workers) were supplied to the first respondent from the second respondent at the relevant time of the purported TUPE transfer. vi. Significantly, the claimant referred to the second respondent’s pay rates for carpenters (at page 54), which was significantly higher than the claimant said he earned. It therefore does not make economic sense that the first respondent would replace carpenters earning between £9 to £14.90 per hour with carpenters engaged by the second respondent at £19 per hour. Even if this was the case, TUPE would operate to transfer the claimant to the second respondent at his existing, and lower, pay. vii. Ms Meenan contended that the first respondent has asked the claimant to provide any documents to support his contention that a TUPE transfer occurred, and he has not provided any documents.[23]Based on the above, I determined that the claimant’s claims based on a TUPE transfer have little prospects of success and I will make deposit orders in respect of the 2 claims identified at paragraphs 7(vi) above and the 1 claim identified at paragraph 7(iv). Consideration of the claimant’s means and the amount of the deposit orders[24]The claimant did not provide any documents in respect of his means. He said that he had started a new job and that he was 5 weeks into a 3 month trial. The claimant, therefore, appears to have been out of work for possibly 2-months. He said that he was worried about his probationary period. The claimant had worked for the first respondent since 2003 (and 2009 as an employee) so this implies that he is a good worker and a valuable asset to any business. That said, the claimant is working as a carpenter and employment in the post-covid economy as well as construction industry may well be precarious. The claimant informed me that has a net income of around £2,400 per month and his housing and core bills are in the region of £700 per month. His partner works although the claimant (and his partner) has a small child. I do not believe the claimant has any significant savings. I proceed on the basis that the claimant is not impecunious, but I am mindful that the deposit order will need to be paid within 28 days from the date that this decision is promulgated, and I do not want to put the claimant under any unjustifiable financial strain to meet this obligation.[25]I do not accept any contention that just because the claimant may be able to afford the maximum deposit order, therefore I should therefore make deposit orders in the sum of £1,000. I explained to the claimant carefully, and repeatedly, that he was at risk of being ordered to pay the respondent’s legal costs if he were to pay the deposit and continue the 3 claims against the respondents that I identified above. I explained that the possible cost consequences of this could be significant, even for a proportion of the overall legal costs (which might be deemed reasonable). I am satisfied that the relatively modest amount I make for the deposits does not diminish respect for the cost consequences of making the deposit order.[26]I regard deposit orders for £400 appropriate to the allegations made and proportionate to his overall means. I advised him of the costs consequences if he loses the TUPE-related claims and that if in doubt he should seek independent legal advice. I regard the possible total of £1,200 (i.e. 3 x £400 deposit order) to be proportionate also and within the overriding objective.[27]If the claimant pays some of the deposit orders only then he will need to identify which deposits he has paid. Further case management orders[28]The claimant advised me that he has not yet received a case number for the (second) claim which was presented by his union solicitors a few weeks ago. As he was able to quote a reference number, it would appear that this claim was submitted electronically. Ms Meenan advised that the respondent has not had sight of this claim yet. The claimant informed me that the second claim made reference to these proceedings and requested consolidation.[29]As the new proceedings are likely to be joined with these proceedings and as the claimant will need time to think about whether or not to pay the deposit, I decline to make further case management orders at this stage. The second respondent might not be a party to the case preparatory obligations in any event. Once the Response to the new claim is received, the Tribunal can order a further case management hearing for both sets of proceedings. In the interim, Ms Meenan will clarify whether or not the first respondent contends that they dismissed the claimant and if so, the basis of the dismissal and on what date it occurred.[1]This open preliminary hearing was ordered by Employment Judge Bloom on 17 March 2023 “To determine the issue of whether or not there was a relevant 1 of 10 transfer of the claimant’s employment between the First and Second Respondents on or around 31 August 2020.”[2]On 31 August 2023, Mr Rahman, on behalf of the claimant, emailed the tribunal and the respondent’s representatives as follows:- “We can confirm that the claimant withdraws his TUPE claim for automatic unfair dismissal (Regulation 7(1) of the TUPE Regulations 2006) and protective award (Section 188 of TULRA 1992 and/or Regulation 15 TUPE Regulations 2006). In view of the above, the claimant requests that the PH listed for 6 September 2023 to consider the TUPE claim, is vacated.”[3]On the same day, the claimant confirmed that all claims against the Second Respondent were withdrawn. Also on 31 August 2023 the Second Respondent indicated that it intended to make a costs application.[4]On 31 August 2023, Employment Judge Bansal directed that judgment confirming the claimant’s withdrawal of all claims against the Second Respondent would be issued in due course and that the preliminary hearing listed for today should remain listed in order to hear the Second Respondent’s application for costs.[5]The First Respondent has subsequently also made an application for costs. Documentation[6]I was provided with the following documentation:6.1 The First Respondent’s application for costs (3 pages)6.2 The First Respondent’s bundle of documents (51 pages)6.3 The First Respondent’s skeleton argument (7 pages)6.4 The Second Respondent’s costs application (11 pages)6.5 The Second respondent’s authorities bundle of 5 authorities (38 pages)6.6 The Second Respondent’s schedule of costs (7 pages)6.7 The Second Respondent’s costs bundle (66 pages)6.8 The Second Respondent’s preliminary hearing bundle (138 pages)6.9 2 witness statements from the First and Second Respondent’s witnesses (7 pages)6.10 The claimant’s response document to the Second Respondent’s application for costs (15 pages)6.11 The claimant’s response document to the First Respondent’s application for costs (2 pages)6.12 The claimant’s witness statement (7 pages) 2 of 106.13 The claimant’s bundle for the costs hearing (97 pages).
The evidence
[7]In addition to the documentation, I heard oral evidence from the claimant. Waiver of privilege[8]At the start of this hearing an issue was raised in relation to whether or not the claimant had waived legal professional privilege and, if so, to what extent.[9]This arose out of the claimant’s witness statement wherein the following is stated:- “The exchange of documents took place on 24 April 2023. I did not have an opportunity to go through this with my representative until 20 July 2023 when we went over the evidence and my representative advised me that I should withdraw the claim. I agreed with his advice…”[10]I indicated that to adjourn this hearing to hear argument on the issue, which could potentially involve disclosure of all the claimant’s legal representative’s files, was disproportionate and I indicated I would proceed on the basis that the claimant could not be cross examined as to the nature of the advice he had received. The applications[11]The Second Respondent’s application is for its entire costs of the action in the sum of £28,680 to be capped at £20,000. The grounds are threefold:11.1 Under Rule 76(1)(b) that the claimant’s claims against the Second Respondent had no reasonable prospect of success:11.2 Under Rule 76(1)(a) that the claimant was guilty of unreasonable conduct in failing to engage properly or at all with costs warning letters of 12 April 2021, 14 October 2021, 2 February 2023 and 1 August 2023.11.3 Under Rule 76(1)(a) that the claimant’s alleged late withdrawal of his TUPE claims on 31 August 2023, three clear working days before this preliminary hearing on 6 September, coupled with his failure to serve a witness statement in advance of the preliminary hearing amounted to unreasonable conduct.[12]The First Respondent’s application relates to the period after the preliminary hearing in front of Employment Judge Bloom on 17 March 2023 and is in the sum of £7,000 plus VAT. The grounds are that the claimant had acted unreasonably in the conduct of his claim (Rule 76(1)) in pursuing the claim despite the deposit order made on 21 October 2021, failure to serve a witness statement and withdrawing his claims six days before the preliminary hearing. The law 3 of 10 All three parties have provided me with skeleton arguments containing submissions on the law. I record here that I have read and taken into account those submissions.
The law
[13]Rule 76 Employment Tribunal’s (Constitution and Rules of Procedure) Regulations 2013 provides as follows:- “(1) A tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that –(a) A party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) Any claim or response had no reasonable prospects of success. (2) A tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.”[14]In deciding whether to make a costs order I have to take into account the paying party’s ability to pay.[15]The exercise of my discretion is twofold. Firstly, I must consider whether a party’s conduct falls within Rule 76 and then, secondly, go on to consider whether it is appropriate to exercise my discretion to make a costs order.[16]The starting point is as reiterated by the Court of Appeal in Yerrakalva v Barnsley Metropolitan Borough Council [2012] ICR 420, CA, that costs in the employment tribunal are still the exception rather than the rule.[17]As far as assessing the prospects of success are concerned, Mr Bromige highlights a distinction in the authorities between a strike out application, when the tribunal does not have the benefit of having heard oral evidence and the tribunal must take the claimant’s case at its highest, and the more normal course of events, when a costs application is made after the tribunal has given a full judgment with access to all the relevant material from which to make an assessment. However, in this case I have not had the benefit of hearing all the evidence. In essence, it seems to me that I have to assess whether, on a summary basis, I can conclude that there was virtually nothing to support the allegations.[18]Obviously enough, the making of a deposit order and costs warning letters are factors that I have to take into account in the exercise of my discretion.[19]As regards late withdrawal, as per the IDS Employment Law Handbook Practice and Procedure at 20.116: “A party might think that he or she can avoid a possible costs penalty if his or her claim (or response) is withdrawn before the hearing. But this is not necessarily so because costs may be incurred well in advance of the hearing proper. If a party allows preparation for the hearing to go on too long before abandoning an untenable case, that party may be liable for costs on account of his or her conduct. 4 of 10 … In awarding costs against a claimant who has withdrawn a claim, an employment tribunal must consider whether the claimant has conducted the proceedings unreasonably in all the circumstances, and not whether the late withdrawal of the claim was in itself unreasonable – McPherson v BNP Paribas (London Branch) [2004] ICR 1398 CA”.[20]Further, in the McPherson case the Court of Appeal “…warned that it would be wrong if, acting on a misconceived analogy with the Civil Procedure Rules, tribunals took the line that it was unreasonable conduct for tribunal claimants to withdraw claims, and that if they did so, they should be made liable to pay all the costs of the proceedings. The court pointed out that, in fact, withdrawals could lead to a saving of costs, and that it would therefore be unfortunate if claimants were deterred from dropping claims by the prospect of an order for costs upon withdrawal that might well not be made against them if they fought on to a full hearing and failed. Therefore, before an order for costs can be made, it must be shown that the claimant’s conduct of the proceedings has been unreasonable. This is determined by looking at the conduct overall.” The conduct of the claim[21]The claimant was employed by the First Respondent on 6 April 2009. By 2020 he was therefore a longstanding employee.[22]On 14 August 2020, the claimant received a letter from the First Respondent notifying him that his job was at risk of redundancy.[23]On 9 September 2020, the claimant raised a grievance. In it he states as follows:- “ 3. Around June 2020 I discovered that sub-contractors were completing work that had been previously started by myself and my team.” And “I am aware the work of my previous team is now being undertaken by subcontractors. I am still not clear how I can be told there is no work for me and yet the work is still being undertaken.”[24]In his claim form the claimant disputes the genuiness of the redundancy situation. Further, he points to the fact that his work was now being carried out by the Second Respondent and asserts that there was a transfer of undertaking and/or a service provision change in that the First Respondent contracted out the tasks of carpentry work to the Second Respondent. The following is pleaded:- “The claimant was employed as part of a group of employees whose principal purpose was carrying out carpentry work on behalf of the First Respondent. That work is now being carried out by the Second Respondent.”[25]In his witness statement the claimant gives evidence as follows:- “Towards the end of that period [July 2020] Mick Kelly (South East Area Manager) (now construction Director)) telephoned me and informed me that my job (along with 5 of 10 the entirety of the Aftercare Team I was part of) was likely to be made redundant, and that my role will be moving to the Second Respondent.”[26]Elsewhere the claimant refers to a conversation on 3 August 2020 with Mr Kelly wherein Mr Kelly suggested the claimant was entitled to be offered work before any attempts to contract it out to the Second Respondent, that the claimant should be offered the work and not contractors as he was an employee and that he should threaten legal action because what the First Respondent was doing was illegal.[27]The claimant refers to a number of text messages from Mr Kelly along the lines that he was being told “utter lies,” that they “don’t give a fuck about you” and that “he needed to tell the truth and fight back.”[28]The claimant refers to his grievance being dealt with at a meeting on 6 October 2020 wherein he was represented by his Unite Union representative, Mr Gordon Lean. He states that during the meeting Mr Lean explained that his role still existed and was being carried out by the Second Respondent, and that the claimant should be transferred to them in accordance with TUPE. The claimant states that he was told that no other roles were available in the Aftercare Team setting and that: “I do not believe this to be true as I have seen with my own eyes work being undertaken in Kings Cross by staff at the Second Respondent, work that I used to do.”[29]Based on what he was told my Mr Kelly and his union representative he believed that there had been a TUPE transfer.[30]I have been shown the grievance outcome letter which specifically refers to TUPE albeit rejecting that there had been any such transfer. Nevertheless, it indicates to me that at the time questions as to whether or not the claimant had been TUPE transferred were live and genuine as far as the claimant was concerned.[31]The claimant’s evidence and assertions have, of course, not been tested and, given the fact that a lot of his evidence relates to conversations, I cannot assess the prospects of him successfully establishing those facts. They would, however, be surprising inventions.[32]A service provision change is a situation in which activities cease to be carried out by a person on his own behalf and are carried out instead by another person on the client’s behalf. The claimant’s perception was that his work was being undertaken by the Second Respondent and he was being made redundant. A manager at the First Respondent was telling him he was being lied to and his trade union representative was suggesting that there was a TUPE transfer. In the circumstances I do not conclude that the claimant knew or ought to have known that there was virtually nothing to support his allegations. In my judgment there were reasonable grounds for the claimant bringing his claims against the Second Respondent.[33]I take account of the fact that it is not unknown in this jurisdiction for employers to structure their operations so as to get around the TUPE provisions. I do not, of course, suggest that that is what the respondents were doing in this case, but I 6 of 10 do find that in these circumstances it was not unreasonable to bring his claims relating to TUPE.[34]The claimant presented his claim on 17 December 2020.[35]The First Respondent’s grounds of resistance are dated 27 January 2021. It deals with the TUPE issue as follows:- “29 The First Respondent engages the Second Respondent as a sub-contractor to provide labour on an ad-hoc basis when additional labour resource is required. The First Respondent does not engage the Second Respondent to perform remedial or aftercare work that was previously carried out by the claimant, as alleged. 30. The activities carried out by the claimant did not transfer to the Second Respondent and therefore the First Respondent denies there has been a relevant transfer from the First Respondent to the Second Respondent within the meaning of the TUPE Regulations.”[36]The Second Respondent’s grounds of resistance were also filed on 27 January 2021. The Second Respondent denied that there had been any relevant transfer within the meaning of TUPE, and pointed to a pre-existing contract with the First Respondent of August 2018 to provide labour at the Kings Cross construction site. The nature of the labour to be supplied was independent contractors and not employees and further pointed to the fact that the work that the labour only subcontractors undertook did not include “aftercare” work. Of necessity, I have condensed the nature of the defence advanced.[37]What the defences do make clear is that there was a pre-existing relationship between the First and Second Respondents concerning the provision of labour to the Kings Cross site. The basis upon which the Second Respondent provided the labour and the nature of the tasks that that labour undertook, was clearly in dispute. In my judgment, from the claimant’s perspective he had been made redundant and workers supplied by the Second Respondent were doing his work.[38]On 26 February 2021 the Second Respondent sent a costs warning letter to the claimant’s legal advisors which was later forwarded to the claimant himself on 1 March 2021. As might be expected the Second Respondent was pointing to its response and asserts that there are clear reasons why there was no relevant transfer. In my judgment, it was not unreasonable for the claimant to continue with his claims on the basis of his reasoned perception of what had gone on as set out above.[39]Due to the fact that the Second Respondent had applied for a strike out order in its response, on 21 June 2021 Employment Judge Lewis directed that there be a preliminary hearing to determine the following issue: “To consider if any claim be struck out, or made subject to a deposit order on the grounds of having little or no prospect of success.”[40]The preliminary hearing was listed for 21 October 2021. 7 of 10[41]On 14 October 2021, shortly before the preliminary hearing, the Second Respondents solicitors sent a second costs warning letter. Much the same points are made as before.[42]On 21 October 2021 Employment Judge Tobin heard the applications for strike out and/or deposit orders and made a deposit order in relation to the TUPE claims. At that time, the claimant was acting in person. The application for strike out orders was not dealt with by Employment Judge Tobin due to the late withdrawal of the claimant’s legal representative and the late provision of documents/submissions by the respondents. As regards the First Respondent’s position concerning the unfair dismissal, it is apparent that there was confusion due to the First Respondent both asserting that the claimant had been dismissed by virtue of redundancy and disputing that he had been dismissed.[43]As regards the TUPE issue, Employment Judge Tobin recorded the claimant’s position as follows:- “He said he did not really understand the complex law in this regard, but as a colleague and his former solicitor told him that as he had been replaced by someone from the Second Respondent contractors for carpentry work it must be in breach of TUPE Regulations. “[44]Employment Judge Tobin states that:- “TUPE protection only applies, briefly, if the claimant was part of a business entity which transfers, without losing its identity, from the first respondent to the second respondent.” That certainly reflects regulation 3(1)(a) of the TUPE Regulations concerning a business transfer. What I do not know is whether Employment Judge Tobin considered service provision changes under Regulation 3(1)(b). There does not appear to be a direct reference to the same in his decision. Employment Judge Tobin identified seven particular aspects that he relied upon in concluding that the claimant had little reasonable prospect of success. Employment Judge Tobin referred to the claimant not producing any documents that supported the contention that a TUPE transfer had occurred, which is slightly surprising given that any documents would be within the possession and control of the respondents and disclosure had not yet taken place. I do not go behind the decision of Employment Judge Tobin but the mere fact that the respondents assert that the labour supplied by the Second Respondent was on a selfemployed basis is not determinative. Very often ‘so called’ self-employed contractors are held in reality to be employees. Again, I am not suggesting that this was the position in this case but merely identifying that to continue to question the arrangements was not unreasonable in my judgment.[45]Employment Judge Tobin made a deposit order and the claimant paid it. As such, I accept that he was at risk of a finding of unreasonable conduct in the event that he pursued his claims to a full merits hearing and was unsuccessful once all the evidence had been heard and tested.[46]Once again, on 2 February 2023 the Second Respondents wrote a costs warning letter. Much the same points are reiterated with the addition of the fact of the deposit order being made. 8 of 10[47]A preliminary hearing was heard on 17 March 2023 in front of Employment Judge Bloom. The claimant was represented at this hearing. The Second Respondent made an application for a public preliminary hearing to determine whether or not there was a relevant transfer of the claimant’s employment between the First and Second Respondent on or around 31 August 2020. Employment Judge Bloom considered that that was a sensible suggestion on the basis that the substantive hearing would last many days and that if there was no transfer between the First and Second Respondents it would be unjust and disproportionate for the Second Respondent to incur substantial additional costs in remaining within the proceedings. Accordingly, an open preliminary hearing was ordered to take place on 6 September 2023.[48]Employment Judge Bloom made directions for the open preliminary hearing. These included exchange of documents on the TUPE issue by 21 April 2023.[49]In his witness statement the claimant states:- “I felt that I would now finally be able to get to the bottom of question as to whether a transfer had taken place once the parties had exchanged documents.”[50]Whether or not this is actually in the claimant’s own words or, perhaps, more accurately reflects his legal advisor’s position through him, in my judgment it is not an unreasonable proposition. Questions relating to TUPE transfers can be complex and, very often, the surrounding circumstances are opaque. In my judgment it was not unreasonable for the claimant to maintain his claims pending an opportunity to assess all relevant documentation which, of necessity, would come from the respondents.[51]Exchange of documents took place on 24 April 2023. There had clearly been some documents available for the deposit order hearing. I presume that further documents were provided by the respondents otherwise the exercise would not have taken place. Even if they were not, then it is clear to me that the claimant and his legal representative undertook a review of the matter pending the preliminary hearing scheduled for 6 September 2023.[52]The case management orders for the preliminary hearing included provision of a witness statement from the claimant by 14 July 2023. The claimant failed to provide a witness statement in accordance with that case management order. In my judgment that failure would only serve to hamper his prospects of success at the preliminary hearing. That would be to the benefit of the respondents and does not, in my judgment, constitute unreasonable conduct relevant to the issue of costs.[53]The claimant’s witness statement sets out that he only had an opportunity to consider the matter in detail on 20 July 2023. The claimant’s representative has alluded to the fact that he had domestic difficulties that prevented him from dealing with the matter more expeditiously.[54]Based on advice, the claimant decided to withdraw his TUPE claims.[55]On 24 July 2023 the claimant’s legal advisor wrote to the respondents. The following was stated:- 9 of 10 “I can confirm that provided that he has confirmation that there will be no pursuance of any costs on the TUPE claim, my client will agree to withdraw this aspect of the claim.”[56]Neither respondent was prepared to forgo the opportunity to make an application for costs. That was their choice.[57]The claimant’s TUPE claims were withdrawn unequivocally on 31 August 2023. I do not accept the respondents complaints that this was a late withdrawal of his claims. The withdrawal of his claims could have been accepted in July and the respondents would have saved themselves the expense of further preparation for the preliminary hearing and indeed these costs applications. The respondents elected to keep open their option for making an application for costs. That they did so is down to themselves.[58]As a matter of fact, the Second Respondent wrote a further costs warning letter on 1 August 2023.[59]Having considered all the circumstances of this case, in my judgment the claimant has not acted unreasonably in the bringing of his TUPE claims and the maintenance of them until after the formal disclosure on the TUPE issues. I do not find that his continuance of his claims in the face of the various costs warning letters was unreasonable. I do not find that his failure to serve a witness statement was unreasonable in terms of creating further costs. I do not find that the claimant withdrew his claim late. I do not find that the claimant’s TUPE claims and/or his persistence with them until formal withdrawal was unreasonable conduct. Even had there been aspects of the claimant’s conduct of the proceedings that were unreasonable, I would not exercise my discretion in favour of the respondents given the circumstances as understood by the claimant, which include comments said to have been said to him by senior managers casting aspersions on the conduct of the First Respondent and its arrangements with the Second Respondent.[60]Accordingly, the applications for costs are dismissed.
Introduction
[61]On 13 October 2020, Maria Denscombe (HR Manager) wrote to the Claimant, attempting to address his concerns about pay for the FE role (336- 337), “...in line with the terms of your redundancy, if you decide the role is not suitable to you, you have the option to revert back to redundancy and receive the redundancy payment that was communicated to you by Bam Construct. This option is available to you for a period of 3 months from 1 September 2020. If you would like to revert back to redundancy, please can you let me know and I can communicate this to BAM Construction for you.”[62]On 23 October 2020, in the Redundancy Appeal outcome Rod Stiles wrote, (347 – 341), “The changes to your role are absolutely acknowledged, however, it is clear that you were given a choice as to whether you accepted this role or not and I understand you have a 3 month period to consider whether the role is something that is suitable for you in the long term.”[63]I find that the wording in both letters in October 2020 communicates to the Claimant that the decision to terminate the trial period and revert to redundancy would be solely the Claimant’s decision.[64]On 3 December 2020 at the Pay Grievance meeting before Keith Sullivan, (Operations Manager) (391 – 396) the Claimant stated; “no one told me I was on a trial period.” (394)[65]Keith Sullivan replied, “The Trial period is in place to support you. In a redundancy situation if there is a like for like role then that’s great – but in your case we tried to find a suitable alternative role to avoid redundancy as BAM do not want to make people redundant.” His words continue to indicate that the decision to revert to redundancy terms is the Claimant’s decision alone.[66]On 15 December 2020, the Pay Grievance outcome, (397 – 400) refers to the trial period being extended to the end of December 2020, (398) and continues (399), “As discussed during the meeting, the trial period is something that can be legally required when an employee is redeployed into a different role in order to mitigate or avoid redundancy, BAM extend this trial period to allow a good period of time for both parties to experience the new role. This is in place for both parties and is particularly relevant when the role is acknowledged as being different, such as in your case. Given your current dissatisfaction you have expressed with your new role of Fabric Engineer, it has been agreed to extend this trial period in order to allow your grievances to be addressed. ”[67]This is the first time that the Respondent clearly communicated that the trial period applied to both parties, having now heard the Pay Grievance and understanding the depth of the Claimant’s dissatisfaction with the pay for the role.[68]In the appeal against the Pay Grievance outcome on 10 January 2021, the Claimant acknowledged the trial period, (403) but said that he understood it to be him trialling BAM FM not them trialling him, “ As for the trial period I have been told I am trialling BAM FM not you trial me, and if wasn’t happy I could come back get redundancy and leave. This is what Jyoti, Gavin Pantlin, and Rod Styles told me as I am BAM employee and just transferred within the company. And that I have this in an email from HR too. Maria or you trying to twisted it but up to you how you think. You can’t trial someone you qualified and worked for you for last 17 years and because move within sections in the company just to say it. I can understand what you trying to think or do but it is against the law.”[69]Further, the Claimant says he has not accepted the role, (404) and the case has gone to the Tribunal. He goes on to say, “I will forget all and no talk if you sort out the problem and give me what I want and deserve and that is what has been stolen from me.” (405)[70]On 22 January 2021, at the Pay Grievance Appeal meeting before William Campbell, (415 – 423) the Claimant asked for clarity on the trial period. Nicola Crawley, HR Manager, described it as “mutual”, an opportunity for the Claimant to try the job in Bam FM, to decide if it was the “right job” for him and for Bam FM to decide if “you are the right fit”. She distinguished it from “probation or you being tested”, (420).[71]In the grievance appeal outcome letter dated 22 February 2021 William Campbell recorded that he had decided to extend the trial period to 5 March 2021 and advised in writing that the company reserved its right to revert to redundancy, (WC/30.2) and (WC/31). (434-437).[72]I find that William Campbell acted on the assumption that there was a mutual trial period, although I also accept that the Respondent’s communicated position had shifted. Understandably the Claimant was concerned that the Respondent now referred to a mutual trial period because he had not understood that to be the case before. I find the communication of the trial period evolved. The Respondent had not thought it was necessary to spell out the terms before then because it was expected that the Claimant would make the decision about whether it was a suitable role for him.[73]By clarifying that the trial period was mutual the Claimant was given an effective warning that if he did not fully accept the role the Respondent could also choose to revert to the redundancy terms. Dismissal on 4 June 2021[74]On 22 and 24 February 2021, the Claimant sent angry and threatening emails to the Respondent, (438, 450 and 456). He described his job as having been stolen from him: “Frustration is huge and dishonest people will get what they deserve” “Won’t end well for either side unless you overcome your stubborn and give me my old contract or hourly rate I used to get as a carpenter and multitrader”, “I won’t let bunch of not competent, lazy, unreal, not honest and would also say corrupt managers without any grams of respect and responsibilities to do that with me and especially how they selected me for redundancy and not hiding like a ghost” “It is a joke and corruption. I will not tolerate such happening”.[75]I find that as a result of the tone and content of these emails the Respondent reasonably started to suspect that the Claimant would never settle in the FE role. By email dated 26 February 2021 William Campbell tried to set up a meeting on 4 March 2021. He referred to the end of the trial on 5 March 2021 and warned that the purpose of meeting was to make a final decision on whether or not he was willing to accept the FE role. The Claimant was warned that a potential outcome was the termination of his employment and reversion to redundancy (528).[76]On 28 February (458) the Claimant replied, “About meeting on Thursday i don’t think there is any point to meet those faces any more as many times we did or talk over the phone and all what I been told it’s just you are right and I am on this contract and no more money for me. Ok understand that. Will continue and work on this contract until BAM Construction start needs and take people back and will let you know in advance when this happens so you can look for someone else to replace me.”[77]On 2 March 2021, the Claimant sent an email to William Campbell in which he asserted that the was working under the new terms “under protest” (526). The email is written in a different style and in clearer English than the other emails and there is an incomplete email attached from an unidentified person suggesting it has been drafted for the Claimant. The Claimant himself could not, or would not, say who wrote it. I find that it represents his views because it was sent from his email address and reflects the content of his earlier emails.[78]On 1 March 2021, Matthew Paul (of Hackney UNISON, an employee of Hackney Council) emailed other staff within Hackney Council, (595). The email was entitled “Unison concerns”. “As discussed earlier, Unison have been made aware of worrying and potentially dangerous working practices by BAM whereby generally repairs operatives are frequently being made by their managers to carry out gas and electric works in Council buildings despite not having the relevant training or qualifications. If correct, there is a real risk to staff, residents and service users and so needs some immediate attention.”[79]The email did not come to the Respondent’s attention until 12 April 2021. William Campbell was copied into it on 15 April 2021, (587 – 588) along with others from BAM. William Campbell accepted in his evidence that he had identified the Claimant as the complainant. I accept his evidence that he did not dismiss the Claimant because of it. By the time it came to his attention he had already decided to set up a meeting to determine whether the Claimant accepted the role or not.[80]The meeting originally intended to take place on 4 March 2021 eventually took place on 20 May 2021 (due to the Claimant’s sickness absence and union rep availability). The Claimant was accompanied by Peter Coleman (union rep) (565 – 568). The Claimant was reminded that the reason for the meeting was to discuss his continued reluctance to accept the role of FE on the terms and conditions applicable to the role and that a possible outcome was the end of the trial period. William Campbell also stated that he was concerned about the Claimant’s tone, lack of co-operation and threats and his refusal to cooperate with the health and safety investigation by Steve McInnes (565).[81]The parties differ as to whether the Claimant made it clear that he wanted to stay in the role. I have compared the Claimant’s version of events (C/143- 146) and the notes of the meeting itself (565-568). I have taken into account the Claimant’s first language is not English.[82]Peter Coleman, his Union Representative said in evidence that his “focus” was to preserve the Claimant’s employment, and he advised the Claimant that he needed to be clear that he accepted the role. In the meeting he interjects and answers for the Claimant on more than one occasion saying that the Claimant accepts the role.[83]The Claimant himself is recorded in the meeting as saying that he wants to “stay with BAM’ but in the same sentence he refers to a Construction Manager saying he can go back there, suggesting that he means Bam Construction rather than the FE role. He goes on to say that he does not like being demoted and underpaid. He says he is “comfortable with the role and t&c’s” but then immediately adds “colleagues laughing and pointing at me” which indicates he is not. At one point he states, “Can I officially ask if I can have a pay rise?” when he has been reminded at the beginning of the meeting that his grievances cannot be revisited. At the very end of the meeting he says he has “accepted the role”.[84]I have decided that William Campbell reached a reasonable view in deciding that the Claimant was not prepared to accept the role and would not do so in the foreseeable future. The union rep’s insistence that the Claimant had accepted the FE role is not mirrored by the Claimant’s own statements. Although the Claimant states that he wants to stay with “Bam” he only refers specifically to accepting the FE role at the very end of meeting and, considering his stance during the rest of the meeting, I find William Campbell was justified in doubting the Claimant's sincerity by that point.[85]In addition, William Campbell was entitled to take into account previous correspondence and meetings, where the Claimant made his views about the role being unsuitable very clear. The issue was re-considered by Louise Williamson at the appeal and she also felt that William Campbell reasonably lacked confidence that the Claimant accepted the role (paragraph 91 below).[86]On 21 May 2021, there was a further exchange of correspondence in which the Claimant said that he wanted to stay in the role while looking out for other roles.[87]On 4 June 2021 the Claimant was sent a letter informing him of the termination of his employment (576 – 577). The letter refers to an “untenable position”, the Claimant consistently saying that he was not willing to accept the terms and conditions.[88]On 18 June 2021, the Claimant appealed against his dismissal, (611 – 612) in an email from Peter Coleman which was written on his behalf.[89]The appeal against dismissal meeting took place on 2 July 2021, (627 – 636). The Chair was Louise Williamson, the Managing Director of BAM FM. She is no longer an employee and did not give evidence. The Claimant was accompanied by Marvin Hay, a witness who the Claimant did not call to give evidence. Joanne Pottinger who attended the hearing states (JP/39), “ Nik felt that the trial period had been used unfairly against him and not made clear to him. He expressed that he thought the trial period was for him to make a decision only, not the company. Louise reviewed the correspondence to Nik and could see that he had been told on 13 August 2020, prior to accepting the role, that there would be a trial period. There was also a letter on 13 October 2020 referencing the 3 month trial period. Louise concluded that Nik had been aware of the trial period and had not objected to it at any stage. Louise also found that the use of a trial period was standard practice and she was comfortable it had been extended with the best of intentions due to his clear expressions of dissatisfaction. ”[90]With regard to the Claimant’s reporting of health and safety matters to the union she records (JP/39), “ Marvin Hay (union rep) had expressed concerns that Nik’s dismissal had been linked to him raising health and safety concerns at the Hackney Centre. Louise looked into this and could see that a complaint had been investigated in April 2021, however no health and safety concerns were found. Louise emphasised the importance that BAM places on health and safety and that employees are encouraged to raise any concerns they have. There was clear evidence that Nik knew how to raise concerns and also had refused to carry out certain works within his first few weeks at FM. Louise concluded there was no evidence he had been treated detrimentally because of any concerns raised. In fact, he had been encouraged to raise any concerns and a meeting with a Health and Safety Adviser had been arranged to further explore any concerns Nik had directly, however Nik was unable to raise any specific points of concern that could be investigated. Louise did not believe there was any link between any concerns raised and Nik’s subsequent dismissal.”[91]The appeal was not upheld. The appeal outcome letter dated 16 July 2021, (637 – 641) indicates that Louise Williamson assumed that the trial period had been in place from the outset and that the Claimant had been told about it before he accepted the role. As indicated above I have found the trial period was not communicated clearly and I accept that it was not initially clear to the Claimant that it could be applied by the Respondent to terminate his employment. Nevertheless, I find that nothing turns on Louise Williamson’s assumption. She revisits the question of whether the Claimant has accepted the role and decides that William Campbell was justified in failing to have confidence in the limited assertions the Claimant had made that he accepted the role. She is satisfied that the reason for dismissal was the Claimant not accepting the role and an untenable position having been reached. Health and Safety and Public Interest Disclosures[92]At the Redundancy Appeal meeting on 6 October 2020 the Claimant asserted that he was being asked to do gas and electric work. He was told by Rod Stiles, Joanne Pottinger and Gordon Lean that he should not do it and that he should make his manager aware. Joanne Pottinger also agreed to pick the issue up with the FM Management immediately after the meeting, the notes record, “which has been done”, (344). It is recorded in the outcome letter dated 23 October 2020 (347-351) that she had raised the concerns with his new line management (349). (The discussion at the meeting on 6 October 2020 is not relied on as a protected disclosure.)[93]Despite that discussion and the action taken by Joanne Pottinger the Claimant maintains he continued to be assigned jobs for which he was not qualified. He raised concerns about being required to do work with electrics and gas in his letter to Andrea Singh dated 12 November 2020 (disclosure a), at the Pay Grievance meeting with Keith Sullivan and Maria Denscombe on 3 December 2020 ( disclosure b) and in his Pay Grievance Appeal letter to Keith Sullivan on 10 January 2021 (disclosure c). The Respondent accepts the latter were disclosures of information as defined by s. 43B (1) Employment Rights Act 1996.[94]In his disclosure dated 12 November 2020 (disclosure (a)) (364 – 365) the Claimant stated as follows, “ I am seriously concerned about the breach of health and safety with this new role. Joanne Pottinger and Rod Stiles confirmed that I should not do the following tasks as I am not qualified to do so but I still get assigned them: Gas work Electrical work Heat Emitters Calorifier Gas Solenoid Valve ”[95]At the Pay Grievance meeting on 3 December 2020 (disclosure (b)) Keith Sullivan prompted the Claimant to move on to Health and Safety issues, asking for examples of tasks assigned outside his skill set (394). The Claimant says that he had been assigned tasks (but did not describe them) and “didn’t touch it”.[96]On 10 January 2021 (disclosure (c)) the Claimant sent an appeal against his Pay Grievance Outcome, (401 – 405) and raised concerns that he was still being asked to do gas and electric work, (403).[97]On 22 January 2021 at the meeting appealing his pay grievance, (415 – 423) before William Campbell when there was a discussion about being asked to do gas and electric work, the Claimant again confirmed that he did not do it, (417).[98]The claimant says he raised being required to carry out work with electrics and gas in his email to Nicola Crawley on 25 January 2021 (disclosure (d)). The Claimant’s email to Nicola Crawley is 3.5 pages long, (424 – 429) and consists of complaints about how he has been treated compared to other employees and the pay for the FE role. He refers only in passing to gas and electric work, saying “keep Bullying me by give me jobs about gas and electric” (NA/116] He concludes: “If things carry on like now and I keep losing money, things can get twisted and won’t be good for either sides I believe.” (429)[99]In itself the comment is an allegation of bullying and does not convey sufficiently clear factual information to show health and safety being endangered or breach of a legal obligation. However when read in conjunction with disclosures (a), (b) and (c) the Respondent would have understood the facts being alleged.[100]In his email to Nicola Crawley and William Campbell on 22 February 2021 (disclosure (e)) (438 – 439) he states, “ I will say to every Hackney person who deal with our contract what all this management do and have evidences and recording all those said we play games with Hackney.”[101]He goes on to say that this is not a threat but “something which will call preventing some serious failures and fatalities”. The meaning is not clear. The only link to health and safety is the word “fatalities” but the Claimant does not say what would lead to “fatalities”.[102]William Campbell clearly did not understand what was meant by it and he was sufficiently concerned to seek to investigate the comment further. He decided to set up a meeting between the Claimant and Steve McInnes (Senior Health and Safety Advisor at BAM Construct Limited) (WC/32) (449).[103]The Claimant was not keen to engage in the process, and I find this is evidence that he was not concerned that he or others were in serious or imminent danger, stating in an email dated 24 February 2021 (451), “That is irrelevant now for me as I am fighting to get my hourly rate back or old contract.”[104]On 26 February 2021, William Campbell replied saying (459), “I am extremely disappointed that despite making serious allegations concerning health and safety matters that you are not willing to discuss these issues further. I am also disappointed that you are linking these matters to your own perceived contractual dispute with the business.”[105]The Claimant says he raised that he is being required to carry out work with electrics and gas verbally in his meeting with Steve McInnes on 1 March 2021 (disclosure (f)). His statement and the documents do not appear to refer to a meeting on 1 March 2021. The Claimant says in his statement that he met Steve McInnes on or around 26 February 2021, (Claimant/124) and answered every question asked of him.[106]On 28 February 2021, William Campbell says in an email to HR that Steve McInnes was not able to tie the Claimant down to any “actual issues” regarding Health and Safety but that he “discussed a site visit separately to give me comfort around this” (461)[107]On 2 March 2021, Steve McInnes emailed William Campbell to say that he did speak to the Claimant “last Friday” but that the Claimant’s concerns appeared to be money related issues and ambiguous comments about Health and Safety and there was insufficient detail to investigate, (530). I find that statement, together with William Campbell’s email referred to above establishes that at no stage did the Claimant communicate clear factual information to Steve McInnes.[108]The Claimant alleges that on 2 March 2021 he raised being required to carry out work with electrics and gas in his email to William Campbell (disclosure (g)); (526). The email states, “I raised concerns in the public interest about serious health and safety matters at work and breaches of various legal obligations.” No further detail is given. The comment in itself does not disclose information. It appears to be referring to the meeting with Steve McInnes but I have found that no factual information was imparted to Steve McInnes.[109]The Claimant alleges he raised being required to carry out work with electrics and gas verbally in his meeting with William Campbell on 20 May 2021 (disclosure (h)) (565 – 568). The notes record the Claimant saying, “He [Peter Bennett] asks me 100 times what I am capable of doing – which I find offensive – I can do electrical work, but I’m not qualified – so he started rejecting jobs” The meaning of that comment is unclear and I find it does not disclose information relating to health and safety concerns.[110]As can be seen on each occasion the Claimant referred to being assigned gas or electric work he also clarified that he was asked to do it but he refused. He was not therefore “required to do” it, as set out in the list of issues. There had been no suggestion by the Claimant of being subject to any adverse treatment for refusing to do jobs for which he was not qualified.[111]I find the Claimant’s motivation in raising the health and safety matters was to keep his job rather than because he was concerned for his or others safety. At paragraph 16 of his Statement, the Claimant says Mick Kelly (Regional Director, South East region) advised me to “fight back and threaten to blow the whistle.” (484). At the Pay Grievance meeting on 3 December 2020, it was clear he linked whistleblowing to his request for more pay, (395), “Whistleblowing- I’ve been told if they keep saying to me I should leave then I should raise this. Pls can you put me on my old contract and review my pay.”[112]I find the raising of health and safety concerns did not influence William Campbell’s decision to dismiss the Claimant. Concerns were first raised in autumn 2020 before his involvement in the Pay Grievance appeal but he nevertheless extended the Claimant’s trial (as he saw it) until 5 March 2021. By the time he realised that the Claimant had raised concerns to Hackney he had set up the meeting which eventually led to the Claimant’s dismissal (letter dated 26 February 2021, (535 – 536).) The Law Dismissal
The Law
[113]In an unfair dismissal claim the burden is on the claimant to show that there was a dismissal. Where there is ambiguity, the tribunal must take into account all surrounding circumstances and ask itself how a reasonable employer or employee would have understood the circumstances. An employee must consent before withdrawal of dismissal is effective (Harris & Russell Ltd v PSG Slingsby [1973] IRLR 221). Where it is alleged that an employee has agreed to withdrawal it is sometimes possible to infer agreement from an employee’s conduct (Brock v Minerva Dental Ltd 2007 ICR 917 EAT).[114]In Hogg v Dover College [1990] ICR 39, EAT a letter to a teacher removing him as Head of History and offering him new terms which were significantly different from the old amounted to an express dismissal because it was the termination of one contract and an offer of a new one. Reasons for Dismissal:[115]An employee’s right not to be unfairly dismissed is set out in section 94 of the Employment Rights Act (ERA) 1996. Section 98 (1) ERA 1996 provides that it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal.[116]The tribunal is required to consider the mental processes of the person who made the decision; Cairins LJ in Abernethy v Mott, Hay & Anderson [1974] ICR 323: “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.”[117]Guidance on the approach to burden of proof was given by the Court of Appeal in Kuzel v Roche Products Ltd [2008] EWCA Civ 380; [2008] ICR 799 at paragraph 59: “The tribunal must then decide what was the reason or principal reason for the dismissal of the claimant on the basis that it was for the employer to show what the reason was. If the employer does not show to the satisfaction of the tribunal that the reason was what he asserted it was, it is open to the tribunal to find that the reason was what the employee asserted it was. But it is not correct to say, either as a matter of law or logic, that the tribunal must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee. That may often be the outcome in practice, but it is not necessarily so.”[118]Section 98 of the ERA 1996 provides: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) The reason (or, if more than one, the principal reason) for the dismissal; and(b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it – ..... (c)is that the employee was redundant, ... ..... (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and (b) shall be determined in accordance with equity and the substantial merits of the case. ” Redundancy[119]Redundancy is defined in s.139 ERA 1996. Subsection (1)(b) provides that an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to — “(b) “the fact that the requirements of that business — (i)for employees to carry out work of a particular kind, or (ii)for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.”[120]For a dismissal to be by reason of redundancy, a redundancy situation must exist but it is not for tribunals to investigate the reasons behind such situations, (Hollister v National Farmers’ Union 1979 ICR 542, CA and James W Cook and Co (Wivenhoe) Ltd v Tipper and ors 1990 ICR 716, CA). Tribunals are not expected to investigate the commercial and economic reasons behind a decision but should question whether the decision to dismiss was genuinely on the ground of redundancy. That could require the tribunal to satisfy itself that the decision to make redundancies was based on proper information. In other words, a tribunal is entitled only to ask whether the decision to make redundancies was genuine, not whether it was prudent from a commercial point of view. Some Other Substantial Reason (SOSR) 121. 98(1)(b) ERA 1996 refers to dismissal for ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’. It thus envisages a potentially fair reason for dismissal that employers may be able to rely on if the reason for dismissal does not fall within the specific categories in S.98(2).[122]In Harper v National Coal Board [1980] IRLR 260 the EAT said that an employer cannot claim that a reason for dismissal is substantial if it is a whimsical or capricious reason which no ordinary person would entertain. It stated that where the belief is ‘one which is genuinely held, and particularly is one which most employers would be expected to adopt, it may be a substantial reason...’[123]If, on the face of it, if the reason could justify the dismissal then it will pass as a substantial reason (Kent County Council v Gilham [1985] IRLR 18, CA).[124]An employer should not readily resort to a loss of trust as a panacea. Where working relationships have broken down tribunals must be alert to employers using SOSR ‘as a pretext to conceal the real reason for the employee’s dismissal’ Ezsias v North Glamorgan NHS Trust [2011] IRLR 550.[125]The tribunal should enquire into the background as to how the loss of trust arose as part of considering the fairness of the dismissal, distinguishing reasons that are really conduct. In Governing Body of Tubbenden Primary School v Sylvester UKEAT/0527/11 (25 April 2012, unreported) the EAT held that in a loss of trust case a tribunal can look at the facts behind that loss and whether on all the facts the dismissal was unfair under s 98(4). At [38] Langstaff J: ‘...if it were to be open to an employer to conclude that he had no confidence in an employee, and if an Employment Tribunal were as a matter of law precluded from examining how that position came about, it would be open to that employer, at least if he could establish that the reason was genuine, to dismiss for any reason or none in much the same way as he could have done at common law before legislation in 1971 introduced the right not to be unfairly dismissed.’[126]Once the reason has been established, it is then up to the tribunal to decide whether the employer acted reasonably under S.98(4) in dismissing for that reason by deciding whether the decision to dismiss fell within the range of reasonable responses that a reasonable employer might adopt. This may involve consideration of matters such as whether the employee was consulted, warned and given a hearing, and whether the employer searched for suitable alternative employment. Health and Safety Dismissals[127]Section 100(1) ERA 1996 provides, so far as is relevant, that: “(1) 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— (c)being an employee at a place where— (i)there was no such representative or safety committee, or (ii)there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, ....or (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.(2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time. “[128]In Oudahar v. Esporta Group Limited [2011] ICR 1406, Judge Richardson concluded that the Employment Tribunal should apply Section 100(1)(e) in two stages, as follows: “25. First, the Tribunal should consider whether the criteria set out in that provision have been met, as a matter of fact. Were there circumstances of danger which the employee reasonably believed to be serious and imminent? Did he take or propose to take appropriate steps to protect himself or other persons from the danger?............ If these criteria are not satisfied, Section 100(1)(e) is not engaged.26. Secondly, if the criteria are made out, the Tribunal should then ask whether the employer’s sole or principal reason for dismissal was that the employee took or proposed to take such steps. If it was then the dismissal must be regarded as unfair.27. In our judgment, the mere fact that the employer disagreed with an employee as to whether there were (for example) circumstances of danger, or whether the steps were appropriate, is irrelevant. The intention of Parliament was that the employee should be protected from dismissal if he took or proposed to take steps falling within Section 100(1)(e).”[129]The Court of Appeal in Rodgers v. Leeds Laser Cutting Limited [2023] ICR 356 considered the words of Section 100(1)(d) “In circumstances of danger which the employee reasonably believed to be serious and imminent”. The same words appear in Section 100(1)(e). At paragraph 21 of the Judgment Underhill LJ stated as follows: “21. On that basis the questions which the Employment Tribunal has to decide in a case under Section 100(1)(d) can be analysed as follows:(1) Did the employee believe that there were circumstances of serious and imminent danger in the workplace? If so:(2) Was that belief reasonable? If so:(3) Could they reasonably have reverted that danger? If not:(4) Did they leave or propose to leave or refuse to return to, the workplace, or the relevant part, because of the perceived serious and imminent danger? If so:(5) Was that the reason or principal reason for the dismissal?” Protected Disclosure Dismissals[130]Section 103 (A) ERA 1996 provides: “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.”[131]A qualifying disclosure is defined in section 43B(1) of the ERA 1996: (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— ... … (d) that the health or safety of any individual has been, is being or is likely to be endangered, …[132]In Kilraine v London Borough of Wandsworth [2018] ICR 1850 the Court of Appeal rejected the view that information and allegations were mutually exclusive. Allegations can amount to disclosures of information depending on their content and on the surrounding context. Sales LJ set out the following test for determining whether the information threshold had been met to potentially amount to a qualifying disclosure: the disclosure has to have “sufficient factual content and specificity such as is capable of tending to show” one of the five wrongdoings or deliberate concealment of the same. It is a matter “for the evaluative judgment of the tribunal in the light of all the facts of the case” (paras 35-36).[133]The Tribunal will need to assess whether, given the factual context, it is appropriate to analyse a particular communication in isolation or in connection with others. In Norbrook Laboratories (GB) Ltd v Shaw [2014] ICR 540 (EAT), Slade J (at para 22) said that “an earlier communication can be read together with a later one as embedded in it, rendering the later communication a protected disclosure, even if taken on their own they would not fall within Section 43B(1)(d)3”. Whether or not it is correct to do so is a question of fact.[134]Where the Tribunal finds multiple disclosures it must consider whether the cumulative impact was the principal reason for the dismissal: El-Megresi v Azad University (UKEAT/0448/08/MAA) (5 May 2009).[135]The reason for dismissal requires the tribunal to consider the factors in the mind of the decision maker, that is what motivates the decision maker, Croydon Health Services NHS Trust v Beatt [2017] EWCA CIv 410; [2017] ICR 1240. Submissions[136]I received written and oral submissions from Counsel for the Respondent and Counsel for the Claimant and I have taken the submissions into account, including in each factual finding I have made. Conclusions Unfair Dismissal Issue 1 Was the Claimant dismissed on 14 August 2020?
Conclusions
[137]I find that the Claimant was not dismissed on 14 August 2020. The parties agreed with each other to rescind the termination. The Claimant accepted that in evidence. I reach that decision by taking into account not just his concession under cross examination but also the conduct of the parties viewed objectively in August 2020. The Claimant was paid for the whole of the month of August, whilst on furlough. The Respondent delayed the consultation to enable the interview for the FE role to take place. It was made clear to the Claimant that he had 2 options, to accept the FE role or be made redundant. When the Claimant said he would accept the role, the Claimant was clearly expecting withdrawal of the termination, saying in his email of 17 August 2020 that he would like to “stay”. In addition his witness statement refers to an internal transfer which is not consistent with a termination (paragraphs 44 to 49 above).[138]I have not overlooked that the Respondent’s solicitor at one point suggested a Dover v Hogg situation applied (paragraph 7 above). I found that was not a clear concession because it was not reflected in the subsequent Grounds of Response. It was not relied on as a concession by the Claimant at the hearing and it was not reflected in the List of Issues which was discussed and clarified during the hearing. I found that dismissal and re-engagement on new terms did not occur because the parties agreed with each other to rescind the termination.[139]I have nevertheless gone on to consider the alternative position (a dismissal on 14 August 2020). The Respondent’s case is that it can show that it had a potentially fair reason for dismissal, redundancy.[140]In referring to the reasonableness of the Respondent’s actions below I am not substituting my own view but I am deciding whether the beliefs and actions of the Respondent were within the range of reasonable responses which a reasonable employer might adopt.[141]I found that there was a genuine redundancy situation (paragraph 31 above). I accepted the Respondent’s evidence that the decision was not made because the Respondent had concerns about others in the team (paragraph 55 above). The reason for the redundancy was credible in that there were concerns regarding productivity which pre-date the decision to make redundancies and it was more logical to use the original subcontractors where possible to rectify their work. The decision to make redundancies was therefore within the range of reasonable responses.[142]I find that the process followed was also within the range of reasonable responses. The Claimant was consulted. The Respondent engaged with all the matters the Claimant raised, including following up where necessary. I did not find that Rod Stiles was an unsuitable person to hear the appeal (paragraph 53 above). Reasonable steps were taken to find the Claimant suitable alternative employment (which resulted in an alternative role). It was not outside the range of reasonable responses to restrict the selection pool to the London Region because that was managed as a separate costs centre to the South East region (paragraph 54 above). Issues 2, 3, 4 and 5 The reason for dismissal on 4 June 2021.[143]I find the principal reason for the dismissal on 4 June 2021 was that the Claimant refused to accept his new contract or there were grounds upon which it was reasonable for the respondent to conclude that he would not accept the new contract. I find that was Some Other Substantial Reason for the dismissal (SOSR) and therefore a potentially fair reason.[144]In referring to the reasonableness of the Respondent’s actions below I am not substituting my own view but I am deciding whether the beliefs and actions of the Respondent were within the range of reasonable responses which a reasonable employer might adopt.[145]I find that the Respondent genuinely believed that the Claimant would never accept the terms and the pay for the FE role. That was a reasonable conclusion to reach. The Claimant even maintained in his statement for these proceedings that he accepted the role under protest. The angry and threatening tone of his emails and the fact that he had exhausted internal processes by bringing an appeal and two grievances reasonably led William Campbell to the conclusion that the Claimant would not settle into the role and as a result the working relationship could not function and had broken down.[146]William Campbell gave the Claimant a final opportunity at the meeting on 20 May 2021 to reassure the Respondent that he would accept the role. I found that it was reasonable for William Campbell to decide that he did not have confidence that was the case (paragraph 84-85 above).[147]Failure to accept terms and pay is a reason which is substantial and could justify dismissal. I am satisfied that the Respondent acted within the reasonable range of responses in treating the failure to accept the terms and conditions as a sufficient reason to dismiss the Claimant. It not only impacted on the relationship of trust and cooperation between employer and employee but struck at the heart of the employment relationship.[148]Although the Claimant sent angry and threatening emails in February 2021, I find that the Respondent continued to give the Claimant time to decide whether he could accept the role. I am therefore satisfied that the dismissal was not a response to the Claimant’s conduct but that there was a genuine attempt to see if the Claimant would come to terms with the role.[149]I find that the dismissal was not because the Respondent relied on the trial period in the sense of a statutory or contractual trial. I found that the concept of the trial being mutual evolved with both parties having a different understanding of it. It is unclear what the Respondent believed about the trial period at the time the Claimant started the FE role and it was not well communicated (paragraphs 63 to 67 above).[150]However, at the meeting on 22 January 2021 the Claimant had asked for clarity and been informed that the trial was mutual and was thereby given warning that he needed to demonstrate acceptance of the FE role. That was followed up in writing (paragraphs 70-71 above). Notwithstanding the initial lack of clarity or contractual integrity concerning the trial period the resulting situation was that it gave the Claimant more than adequate time to decide whether he was prepared to accept the FE role and contributed to the fairness of the process.[151]Finally, I have stood back and looked at the overall fairness of the process. I am satisfied that the Claimant was adequately warned and consulted. Moreover, the Claimant was paid a redundancy payment meaning the trial period was ultimately applied in the Claimant’s favour. Although the Claimant had 17 years of employment with a good record the attempt to find alternative work was exhausted and it was therefore reasonable by that stage to terminate the Claimant's employment with immediate effect. Health and Safety and Whistleblowing[152]The Claimant brings claims arising out of alleged Public Interest Disclosures (PIDs) which are set out in the List of Issues paragraph 9, (a) to (h). The same matters are relied on as the Claimant bringing to the Respondent’s attention circumstances that were harmful or potentially harmful to health and safety (paragraph 6.1 of the List of Issues) and the steps taken to protect himself or other persons from danger (paragraph 7.1 of the List of Issues). I refer to them below by disclosures (a) to (h).[153]Although I find that the Respondent has shown that the principal reason for dismissal was the Claimant’s failure to accept the FE role (SOSR) I have nevertheless considered the Claimant’s case that the reason or principal reason for dismissal was related to health and safety or whistleblowing. Issues 6 and 7 The Claimant brought Health and Safety concerns to the Respondent’s attention. The claimant in circumstances of danger which the claimant reasonably believed to be serious and imminent took appropriate steps to protect himself or other persons from danger,[154]The Claimant’s case is that he brought to the Respondent’s attention information that he was required to carry out work with gas and electrics that he was not qualified to do. He also reported it to his trade union who raised the circumstances with the Respondent’s client, Hackney local authority.[155]I have left aside the issue of whether the Respondent had a Health and Safety Representative because no evidence was put forward on that.[156]I accept that the Claimant was rightly concerned when assigned gas and electric work. However, I do not find that he felt that he or others were in serious or imminent danger. He knew that he did not have to do the work, and he consistently maintained that he did not do it. He felt comfortable refusing to do it, and his refusal was fully supported from the point he raised the issue. I found the Claimant’s motivation in raising or escalating the complaints was to keep his job. He would not engage with the investigation by Steve McInnes saying it was irrelevant. If he had been seriously concerned about his safety or that of others he would have done so.[157]I find that the Respondent did not dismiss the Claimant for Health and Safety reasons. William Campbell’s evidence was that he was comfortable with the Claimant challenging him on Health and Safety matters. I accept his evidence on that. I find that is corroborated by him trying to get the Claimant’s concerns investigated by Steve McInnes.[158]William Campbell accepted in evidence that he knew that the Claimant was behind the matters raised with Hackney council from mid-April 2021 (paragraph 79 above), but by then he had already heard the Pay Grievance appeal, discussed the trial period, extended it to 5 March 2021 and tried to set up the final meeting which led to the dismissal (paragraph 112 above). In other words a train of events was already in place which was to lead to the dismissal. William Campbell’s focus was on whether the Claimant had accepted or would accept the role. At the final meeting on 20 May 2021 the discussion barely touched on health and safety matters. The Claimant was asked whether he accepted the role. William Campbell reasonably decided that he did not. That was the reason for the dismissal. Public Interest Disclosure[159]The Respondent accepts that disclosures(a)(b)(c) were disclosures of information. I find that(d) when read in conjunction with (a), (b) and (c) was a disclosure of information (paragraph 99 above). I find that (e), (f) and (g) were not disclosures of information because they did not convey clear factual information (paragraphs 101, 107, 108).[160]I accept the Claimant reasonably believed disclosures (a) to (d) were in the public interest and reasonably believed that undertaking gas and electric work when not qualified was a criminal offence, a danger to Health and Safety and a breach of a legal obligation.[161]The disclosures of information span the period 12 November 2020 to 25 January 2021. I find the Respondent first started considering the possibility of dismissal on 15 December 2020 when deciding the Pay Grievance. It was then that the Respondent communicated that the trial period was in place for both parties. Up until that point the Respondent had reasonably expected that the decision to terminate employment would be made by the Claimant if he was dissatisfied with the pay. I find the shift in the way the trial period was communicated relates to the Claimant being dissatisfied with his pay and not to the protected disclosures (paragraph 67 above). The Claimant was not actually dismissed until 4 June 2021, nearly 6 months later, when he had been given a full opportunity to say that he accepted the terms of the FE role.[162]As with the health and safety allegations I am required to look at the factors in the mind of the decision maker, William Campbell, when he made the decision to dismiss. For the same reasons as set out at paragraph 157 above I find that the public interest disclosures were not the reason or principal reason for dismissal. Summary[163]Accordingly, all the Claimant’s claims are dismissed. Approved by: