Mr S Jonjo v Curam Domi Solutions Ltd: 3315344/2022

EMPLOYMENT TRIBUNALS

Case No 3315344/2022

Between

Mr S JonjoClaimant

Curam Domi Solutions LtdRespondent

Before

Employment Judge Dick

In person for claimant

Date 18 December 2024

JUDGMENT

The following is the unanimous judgment of the Tribunal.

[1]The respondent’s application for strike out is refused.

[2]The complaint of unauthorised deductions from wages is not well-founded and is dismissed.

[3]The complaint of breach of contract/wrongful dismissal in relation to notice pay is not well-founded and is dismissed.

[4]The complaint of breach of contract for failing to pay the claimant in relation to deductions made for training fees is not well-founded and is dismissed.

[5]The complaint of “automatically” unfair dismissal is not well-founded and is dismissed. The claimant was not dismissed for the reason or principal reason that he made protected disclosures, nor for the reason or principal reason that he asserted a statutory right.

[6]The complaint of being subjected to detriment for making a protected disclosure is not well-founded and is dismissed.

REASONS

Key to references: [x] = page of agreed bundle. INTRODUCTION; CLAIMS AND ISSUES

[1]Exactly when the claimant started work for the respondent was a point of contention in this case, but everyone agreed that he was working for the respondent by December 2021. He was dismissed – again, exactly when was in dispute – some time in August 2022. The respondent’s case was that he was dismissed having failed his six month probationary period. The claimant said that he had ultimately been dismissed for making a number of protected disclosures, the first on 30 July 2022 and the last on 16 August 2022. Before that, he said, he had been the subject of a conspiracy to fabricate a sham performance or capability case against him. That conspiracy was said to involve the respondent’s director Ms Henry as well as 2 other managers employed by the respondent, Evelyn Daniel and Antonio Palmer, although on the claimant’s case there must also have been a fourth person involved in the conspiracy who falsified what we refer to below as a log around 6 August 2022. The claimant also says that the respondent owed him various sums of money which were still outstanding at the time of his dismissal.

[2]The factual and legal issues for us to decide were, as the parties agreed, unchanged from the list of issues set out in the Case Management Summary prepared by Employment Judge (“EJ”) Maxwell following a preliminary hearing on 3 October 2023; that list is appended to these reasons. In short, the claimant’s complaints were that he was subjected to automatically unfair dismissal for making protected disclosures and was subjected to a detriment (the fabrication of the performance/capability case against him) for the same reason. He also complained of wrongful dismissal and claimed the various amounts he said he was owed either by way of damages for breach of contract or as unauthorised deductions from wages. PROCEDURE, EVIDENCE etc.

[3]At the start of the hearing, after taking time to read the statements and to consider the agreed bundle, we heard an application on behalf of the respondent, which we refused, to strike out the claim under rule 37(1)(a) or, in the alternative, rule 37(1)(e). We also heard an application on behalf of the claimant, which we allowed, to be permitted to put in evidence a further bundle of evidence, in addition to the agreed bundle which contained an original 480 pages plus an additional 76 pages added by the respondent at the claimant’s request the week before the hearing.

[4]During the course of the hearing we also made orders under rule 50 (which are contained in a separate document) in order to protect the identities of two children (see below). In accordance with the order we refer below to Child 1 and Child 2 and to Home A and Home B.

[5]We gave oral reasons for the decisions referred to in the previous two paragraphs and were not asked to provide written reasons.

[6]We then heard evidence from the witnesses. In each case the usual procedure was adopted, i.e. their written statements stood as their evidence-in-chief and they were then cross-examined. The claimant gave evidence and also called Miss Abosede Soremekun. The respondent called Mrs Andrea Henry, its director.

[7]Without any warning at all, let alone any application to amend his pleaded case, on the third day of the hearing the claimant suggested to the witness Mrs Henry in cross-examination that his dismissal had been for discriminatory reasons. The claimant was given the opportunity to apply to amend his case and declined to do so. We therefore take no account of the suggestion he made. Though we might have been entitled to, we do not draw any adverse inferences against the claimant so far as his credibility is concerned for this conduct. At the conclusion of the evidence we heard oral submissions on behalf of the parties, supplemented by written submissions from the claimant. FACT FINDINGS

[8]We find the following facts on the balance of probabilities. Where facts were not in dispute we simply record them; where we have needed to resolve disputed facts we make that clear. We have not made findings on every fact presented to us, but merely on those which assisted us to come to a decision bearing in mind the list of issues. The respondent’s business

[9]At the time we are concerned with the respondent company was responsible for running two residential homes, Homes A and B, for children with what the respondent’s director, Mrs Henry, described as significant emotional and behavioural problems. The children were placed in the respondent’s care by the local authority, which funded the placements. The respondent’s activities were regulated by Ofsted. As we understand it, the person ultimately responsible for each home was the responsible individual (“RI”) and each home also had a registered manager (“RM”). Both of these positions had to be registered with and approved by Ofsted. Ofsted also inspected each home periodically. The claimant’s position, with which the respondent did not take issue, was that although generally Ofsted required an RM to have a particular NVQ level 5 qualification, Ofsted would in certain circumstances agree for someone to be an RM on the condition that they achieved the qualification within two years, i.e. that they were on the pathway to gaining the qualification. The respondent also employed managers and deputy managers who were not RMs, as well as more than 10 residential support workers.

[10]The claimant worked for most of his time at Home A, which at the material time housed two children, Child 1 and Child 2. It was not in dispute that the children’s care plans in combination required the presence of three members of staff during the day and two members of staff at night. Throughout most of the material time the other home, Home B, did not in fact house any children (Mrs Henry told us that and the claimant did not dispute it). Start of Employment

[11]Following an interview in September, the respondent sent the claimant an offer letter dated 1 October 2021. The letter offered him the post of “registered manager” and invited him to an induction on 7 October, at which a start date would be agreed. It said that the main terms of the employment would be supplied in writing within two months but did set out some details. His normal hours of work would be 40 per week including for on-call duties. The salary would be £40,000. We should record here that, contrary to the case advanced by the respondent, we do not accept that in his written application for the role the claimant provided misleading information about his past employment. We therefore say no more about that point.

[12]The parties agreed that the claimant in fact started the role of home manager – not RM as originally offered – on 1 December 2021. One significant area of dispute was what the claimant did between 1 October and 1 December. It was the claimant’s case that he worked full-time (or at least around four days per week) for all of that time, taking part in training, attending management meetings and attending the homes to shadow other members of staff and get to know the children. He therefore says he should be entitled to 2 months’ pay as an RM for that work. The respondent says he in fact only attended one induction day and one management meeting during that time, for which he was paid in his December or January pay packet – that was Mrs Henry’s recollection. We were not provided with a payslip for the relevant month.

[13]We were shown a document headed “Job Description and Signatures of [the claimant (Applicant for the post of registered manager…)” [80] which set out under a number of subheadings (which were obviously requirements for the role) the claimant’s skills and experience. It is written in the first person, i.e. it was clearly written by the claimant. It is signed by the claimant and, in the part for “Manager Signature”, by Michael Griffith, who Mrs Henry told us was a bank manager (i.e. manager of bank staff) for the respondent. The claimant told us that this document was prepared and signed at his interview to show what he would do to satisfy the requirements of the role but in fact we note it is dated 7 October and so must have been prepared around the time of his induction. We accept Mrs Henry’s evidence that she knew nothing about the document.

[14]Mrs Henry also told us that around the time the claimant was interviewed the other applicant for the role was Miss Soremekun (who gave evidence for the claimant). Mrs Henry said that the decision was made to offer the RM role to Miss Soremekun as she was better qualified. The claimant however showed a good deal of promise and the respondent also wished to employ him, but as a quality control manager, in other words a slightly lesser role than RM. The claimant's account was slightly different in that he said he was originally offered the RM role and attended induction on that basis but was later told that the respondent had in fact decided to give the RM role to Miss Soremekun. Mrs Henry told us that the offer letter we saw, and which was signed by the claimant also on 7 October – so presumably at his induction – was sent out in error and that a second letter with the correct terms was sent out at around the same time offering him the other role. We do not accept that evidence. There was only one letter in the bundle and we consider that if there was a second letter Mrs Henry would have referred to it in her statement, which dealt with the letter that was in the bundle.

[15]However, so far as the issue of what the claimant did in October and November is concerned, we prefer Mrs Henry’s evidence. We consider it implausible that the claimant would have attended induction almost every day for a period of eight or nine weeks. The offer letter referred to an induction week, which although somewhat inconsistent with Mrs Henry’s evidence was considerably closer to it than to the claimant’s. We also note that in a letter written by the claimant on 27 May 2022 [270], although the claimant mentions having attended various meetings in October and November, he also says that he was employed on 1 December 2021. He says the same thing in a letter of 21 June 22 [292]. He does not complain in either document of not being paid for October or November and indeed we could see no such written request made by the claimant until his letter of 30 July 2022 [350]. In coming to that conclusion we were not assisted by Mrs Henry’s recollection that the claimant had asked to delay his start date as it might affect his entitlement to benefits. Whilst we accept that there may have been some conversation about the claimant’s benefits, we cannot see why the claimant would have wished to continue claiming unemployment benefit which was considerably less than whatever salary he might have been entitled to. We consider it more likely that the conversation was in fact along the lines of the claimant expressing some concern that attending the induction days might affect his entitlement to benefits. Either way, we find that the parties agreed that the claimant would not start until first December. Although it was Miss Soremekun’s evidence that she thought the claimant had started about two months before her, that belief was only on the basis of conversation she had had with the claimant, and that belief would not necessarily be inconsistent with the claimant having done one or two days’ induction in October but not having formally started until December. We also took account of Miss Soremekun’s evidence that she recalled someone – she could not remember whether the claimant or somebody else – telling her that the claimant’s start had been delayed and that had something to do with benefits.

[16]We find that the claimant quite reasonably, and correctly, believed that he had been offered the role of RM and that the respondent then changed its mind and gave that role to Miss Soremekun. This no doubt caused the claimant considerable upset and could in our judgment have been avoided had the respondent dealt with the situation better. However it is clear – and indeed the claimant agreed – that by the time 1 December came, the claimant had accepted the respondent’s changed offer of the role of home manager. All were agreed that Miss Soremekun took up the RM role, around November 2021.

[17]A statement of terms of employment for the home manager role, which the claimant signed on 14 January 2022, stated clearly that his salary was to be £ 36,000. It was the claimant’s case that Mrs Henry had verbally agreed to a salary of £ 40,000 but that £ 4000 would be deducted from that to cover the costs of his training for the NVQ level 5 qualification which he would need to do to be an RM. Because he never attended that training, the claimant says he is entitled to the £ 4000 back. We do not accept that – the document that the claimant signed states his salary clearly and it also states clearly that he will be required to undertake the level 5 training to be provided at the respondent’s expense. It makes no provision for the claimant to be paid any extra money if the training does not happen – in fact it provides that if he leaves his employment early he would be liable to pay the respondent for the training. We consider that the claimant, knowing the difference in salary between the role that was originally offered and the role which he ended up taking, simply assumed that the difference was to account for the training costs. We can see no proper basis for him having made that assumption. We were therefore not assisted by evidence produced by the claimant that showed the cost of such training was in fact significantly less than 4000. The claimant accepted that he had been provided with a phone number to ring to arrange the training. It was his case that he spoke to somebody and never heard back from them which is why he never completed the training. We accept Mrs Henry’s evidence that ultimately the claimant failed to follow that up and complete the necessary skills test for the training provider, which is why the training was never started. Although Mrs Henry said in evidence that the receipt for the training was the document in the bundle at [476], she was clearly mistaken about that – the document is simply a quote for Level 5 training that the claimant obtained for the purposes of this case. We do not consider this significantly undermined Mrs Henry’s evidence on this point as there would not be a receipt for the training on anybody’s version of events, since it did not happen.

[18]We also note the following in the signed statement of the terms of the claimant’s employment. There was probationary period of six months (i.e. till June 2022). It also said the following: HOURS OF WORK Your normal hours of work are 40 per week, Monday to Sunday … You will usually be required to work five days out of seven days. Actual days, start/finish times will be variable and in accordance with the rota. Your normal hours are not variable, however, you may be required to work additional hours when authorised and as necessitated by the needs of the business. REMUNERATION Your salary is currently £ 36,000 … Your salary is set at such a level as to compensate for the need for occasional additional hours. .. WAKE-IN SHIFT You will be required to work sleep-in shifts which you will be paid £100 per shift which equates to 11 hours of work. [There was otherwise no provision for payment for overtime.] February 2022 inspection

[19]On 8 February 2022 Home A was the subject of an Ofsted interim inspection. The inspectors found that since the last full inspection the home had declined in effectiveness. The last full inspection, which had been in November 2021 rated the home as “requires improvement to be good”. This rating, which the parties agreed was undesirable, is the third lowest of four possible ratings. As the claimant pointed out, and which the respondent did not dispute, the interim inspection was retrospective – in other words it was looking back over a period a significant part of which the claimant had not been in post. Claimant’s role from April 2022

[20]Miss Soremekun’s employment, which as we have said began in November 2021, ended on 31 March 2022. The role of RM therefore became vacant. It was the claimant’s case that he was appointed as the new RM. He also argued that since he still also held the role of home manager he was entitled to be paid both salaries for the months of April, May and June – so two full-time jobs alongside the additional hundred or so hours of overtime he says he was entitled to be paid for each month (we come to the overtime in more detail later). We do not accept that the claimant reasonably believed that he was entitled to be paid two salaries at the same time. We consider the suggestion so implausible that it significantly affects our assessment of the claimant’s credibility. However we were also troubled by the respondent’s evidence on the point about who became the RM after 31 March. Mrs Henry told us that Mr Evelyn Daniel was the RM from April and that she was the RI at that time. This is despite the claimant being described as the registered manager in a number of documents, albeit with some qualification. For example the minutes of a meeting of 19 April 2022 record that Mr Daniel – described as the RI, not the RM – introduced the claimant as “General Manager – Quality Assurance and the ‘new Registered Manager (RM)’ of the company pending registration with Ofsted”. So, although the claimant was described as the RM, we do note that that document qualifies the claimant’s job title by saying it was pending registration with Ofsted. However there was at least one other document which appeared to have been prepared by one of the respondent’s employees which did not carry that qualification. This seems to pinpoint a fundamental point of misunderstanding between the respondent and the claimant.

[21]Despite the uncertainty, which appears to us have been caused by the respondent, we do accept Mrs Henry’s evidence that the claimant was not officially the RM – i.e. registered with Ofsted – although he was effectively on a pathway to becoming the RM (as is reflected in the earlier requirement which we refer to above, that he complete the level 5 training). Although, as the claimant points out, it is possible to be the RM without the qualification, we accept Mrs Henry’s evidence that she believed that Ofsted would not have “signed off” the claimant because he did not have the required amount of experience running children’s homes, had not yet arranged a required health report from his GP and had not registered with the DBS update service – he was in her words not ready, but the respondent was keen to help him get there. While we accept that this attitude is somewhat at odds with the fact that by now the respondent had concerns about the claimant’s performance, it was evident to us that the respondent had serious difficulty in recruiting people for management roles. Given the vagueness of the evidence – we were particularly troubled by the lack of clarity in the evidence about who was officially RM and RI at any particular time – we were unable to conclude on the balance of probabilities who was the RM (i.e. registered with Ofsted), but we do conclude it was not the claimant. Ultimately we do not accept the claimant’s case that he was formally offered the RM role from April, particularly in the absence of any paperwork confirming a change to his conditions of employment or acceptance of new terms – we find that he continued on the original contract, albeit on a pathway to becoming a formal RM and carrying out some of the functions of the RM, but without any changes to the terms and conditions of his employment. Disputed supervision meeting of May 2022

[22]At [259] was a document purporting to be the record of a supervision meeting between the claimant and his line manager Mr Daniel on 10 May 2022. The document was described to us by the claimant as fake, in the sense that he denied any such supervision meeting had ever happened. The document itself was produced by the claimant and is clearly a screenprint from the respondent’s computer system. The claimant’s written evidence was that he had come across the document in the system around 1 June 2022, although it was clear from contemporaneous documents that he in fact found it on 22 May 2022; nothing turns on this slight error in recollection. In her evidence Mrs Henry pointed out to us that at the bottom of the document there are visible “buttons” allowing the user to “save draft”, “delete draft log” and “submit” – in other words the document was in draft form and had not been completed. Clearly, and there was no real dispute about this, the draft had been prepared by Mr Daniel. The issues for us were whether he had prepared it on the basis of a meeting that had actually happened and whether the criticisms documented in it were fair and based on Mr Daniel’s genuine beliefs.

[23]We take account of the fact that the claimant did say from an early stage that the meeting never happened (see for example his letter of complaint about it to Mrs Henry of 23 May 2022). It is also right to say that we were not provided with evidence from Mr Daniel. However Mrs Henry told us that in a conversation at the time with the claimant he did tell her that the meeting happened. Mrs Henry also said that at the claimant’s request she had deleted the document – which is presumably why the copy of the document was provided by the claimant and not the respondent, since it would no longer have been on their systems – and tried to rearrange another supervision session, but that the claimant had not cooperated with her efforts. We found her evidence about how Mr Daniel had been angry with her for simply deleting the document at the claimant’s request to be convincing. We found it particularly unlikely that Mr Daniel would have prepared a draft document of untrue claims about the claimant and then never made any use of such a document – if there was, as the claimant says, a conspiracy against him he would not have had to stumble upon the draft document whilst going through the respondent’s system. We also find that the criticisms in the document were corroborated by Mrs Henry’s evidence to us. For example, that the claimant’s registration with the DBS updating service was still outstanding. We also note that what criticism there is in the document of the claimant is couched in relatively mild terms, and there is also some praise within it. This in our judgment makes it even less likely that the document was prepared for the purposes of unfairly undermining the claimant. On the face of those relatively mild criticisms, we consider that the claimant’s reaction, as evidenced in his 23 May written complaint to the respondent, was disproportionately negative, both in its tone and in treating a draft document, which it appears had never been shared with anybody, as a set of allegations against him which required a response. We note that the claimant did not seriously dispute that he had conversations with Mr Daniel along the lines set out in the in the draft; rather, it seemed to us that he was more concerned about whether the conversations had taken place in the context of a formal supervision meeting. Taking all of that into account we are satisfied that the meeting happened and that the criticisms contained within it were justified and made in good faith. May 2022 inspection

[24]On 24 and 25 May 2022 there was another Ofsted Inspection at Home A. There was no dispute that the overall result of the inspection was “good”– there had been a significant improvement. It was evident to us that the claimant genuinely held the belief that this improvement had been down to the work he had done. Equally clearly, as Mrs Henry told us in her evidence, she believed that the improvement has been achieved despite, rather than because of, the claimant’s efforts. Since neither party provided us with a copy of the report we do not know whether or not Ofsted attributed credit for the improvement to anybody, and if so to whom. The claimant invited us to draw the conclusion that the result of the inspection showed that his work was responsible for turning the home around, whereas it had been falling under previous management. He told us about working into the early hours to prepare documents such as the staff supervision policy and procedure. However we consider the following point made by Mrs Henry in her evidence to be persuasive. The policy that the claimant was working on into the early hours was a basic policy that should have been available before the inspection; the fact that the claimant was working on it at the last minute was a negative, not a positive sign. We therefore preferred Mrs Henry’s evidence on this point. Appraisal/supervision meetings and the PMP – June/July 2022

[25]A probation appraisal meeting for the claimant took place in June 2022 [281]. The written record of it does not carry a date but the claimant’s recollection, which we accept, was that it took place on 14 June 2022. The parties agreed that the claimant and Mr Daniel were present. The claimant said that Mrs Henry was also present (and it is clear from an email he sent before the meeting that he was expecting her to be present) whereas Mrs Henry said that she was not present. We did not find it necessary to resolve this dispute.

[26]The email that the claimant had sent before the meeting contained a five page written report in which the claimant set out what he considered to be his achievements working for the respondent.

[27]The record of the probation review is a form which records the claimant’s job title as registered manager. It was not clear to us whether that box had been filled in by the claimant or by Mr Daniel. The first few pages of boxes, with headings such as “what have you done…” were clearly filled in with text provided by the claimant (in fact they contain passages from the report we refer to in the previous paragraph). One box, presumably recorded by Mr Daniel, under the heading “Informal/formal warnings” records: “Informal warnings given for late or non-production of work including risk assessments, Policy updates”. The penultimate page, under the heading “feedback from your manager” is clearly written by Mr Daniel. The first and last paragraphs read as follows: Most of the information has been submitted in the form of a report by [the claimant]. I have provided the information directly from the report to demonstrate areas where there appears to be a lack of understanding of the process of childcare in a residential setting as well as an exaggeration of [the claimant’s] role in facilitating the changes required to be graded as ‘good’ in our latest Ofsted inspection. … [The claimant] was unsuitable for the role not because of his lack of hard work but by his inexperience of the role and perhaps a misjudgement that it was similar to the manager’s role in CQC registered Home. The length of time it took to produce requested paperwork and his approach to what could have been serious occurrences highlight his inexperience and underpins why he not yet ready to be the Registered manager.

[28]The reference to a CQC registered home was to a field in which the claimant had previously worked. The paragraphs inbetween those two set out a number of specific concerns Mr Daniel had about the claimant’s work (as well as some praise for specific actions). Mr Daniel’s conclusion was that the claimant had failed his probation period. He gave three reasons in particular which we need not set out here. Although the box for the claimant’s signature was not filled in there was no dispute about what was said at the meeting. Despite the claimant’s 23 May complaint to Mrs Henry about Mr Daniel, we do not consider that it was inappropriate for Mr Daniel to have assessed the claimant’s probation period, given our findings above about the complaint and given also that Mr Danel was the claimant’s line manager. We further consider that Mr Daniel was entitled to come to the view which he did and to decide that the claimant had not passed his probationary period. So far as the late/incomplete risk assessments were concerned, we did not accept the claimant’s evidence that he had been waiting for input from other managers before finishing them – he could have spoken to those people or to other carers to get their views.

[29]On 20 June 2022 there was another meeting which we were provided with minutes for [288]. The attendees were the claimant, Mr Daniel and Mr Antonio Palmer. Mr Daniel “opened the meeting and introduced Antonio who will be the Registered Manager”. He then said that the purpose of the meeting was to clarify the claimant’s “job role and title”. Mr Palmer was to be working with the claimant “as his mentor with a view of him being able to reach the point of being able to take over as Registered Manager...[The claimant] acknowledged and agreed that he is willing to do so.” This fortifies our earlier conclusion that the claimant was not in fact the registered manager between April and June, though it is regrettable to say the least that the respondent had not clarified the claimant’s role sufficiently some six months into his employment. While we accept that the claimant genuinely formed the view that he was being replaced by Mr Palmer, given our earlier finding that he was not the registered manager, that was not strictly the case. There was no dispute that Mr Palmer in fact took over the role of registered manager from July 2022.

[30]The claimant’s case was the appraisal meeting was followed by a “convoluted” performance management plan (“PMP”). The PMP was at [315] and, though undated, appears from a later document [307] to have been issued on 22 July. It was to be reviewed on 1 August. Having considered the contents for ourselves in light of the evidence we heard, we consider that the PMP reasonably set out what improvements the respondent required of the claimant.

[31]On 28 July 2022 a supervision meeting took place between Mr Palmer and the claimant. The record, obviously made by Mr Palmer, shows the claimant questioning why he was on a support plan (i.e. the PMP). In our judgment it also provides further evidence of the respondent setting out its expectations for the claimant in some detail, in what clearly amounted to, and would have been seen by the claimant to have amounted to, criticisms of his work. At the end Mr Palmer records the claimant “mentioned finances he see as owed to him by the Director” i.e. Ms Henry. No further detail is recorded. Mr Palmer suggested that the claimant spoke to Mrs Henry about that. The date set for the next supervision was for August 2022. Given that by now the claimant had been told he had failed his probation period and had been made aware on multiple occasions of the respondent’s criticism of his work, we find that the claimant by now realised that there was a realistic prospect of him being dismissed.

[32]It was not necessary for us to draw further conclusions on whether the claimant’s work was or was not of the required standard. We do however find that both Mrs Henry and Mr Daniel by now held the genuine view, which we consider to been a reasonable management decision, that the claimant was not working to the required standards. It is also significant that by now the claimant was aware that they both had those concerns. We do not accept the claimant’s contention that the respondent’s performance management process was trumped up in any way. It is particularly significant in our view that in this case the claimant was on a probationary period and of course had well under the two years’ service which is required to be able to assert unfair dismissal. The respondent could therefore dismiss the claimant, provided it did so with notice and not for discriminatory or automatically unfair reasons, for any reason it chose. In other words, had the respondent wanted rid of the claimant, there was no need for any trumped up process. We accept Mrs Henry’s evidence that she genuinely wanted the claimant to succeed; to think otherwise would have been contrary to the interests of her own company. On the claimant’s pleaded case, and on the evidence we have heard, there was simply no reason why Mrs Henry might have conspired with others in a sham process to dismiss the claimant. Letter of 30 July 2022 (1)

[33]Shortly after the 28 July meeting the claimant made the first of a number of what he says were protected disclosures. The first was in a letter of 30 July 2022. That letter set out a detailed request for payment of a total of £25,904.32 which the claimant said the respondent owed him, under seven different heads by which that total was reached. Two of those heads were based on overtime and so before we turn to the issue of the protected disclosures, we set out our findings on the issue of overtime. Overtime

[34]Although the claimant’s written contract made no provision for overtime, it was not disputed that in certain circumstances the respondent would pay its managers for overtime – so although it was not written down, there was some contractual right to payment for overtime. We accept Mrs Henry’s evidence that overtime was payable where a manager covered a residential support worker’s shift (e.g. because a worker had called in sick) outside of that manager’s contracted hours, but only when that had been authorised by a higher manager (not necessarily in writing) or when the manager had been “rota’d” onto the shift in advance. We also accept Mrs Henry’s evidence that in May 2022 the claimant came to her seeking payment for 150 hours’ overtime. He showed her the signing in book (on which, see below) and although there appeared to be a few discrepancies she decided to take the claim at face value and to pay what the claimant was asking for. She understood this to cover all the claimant’s claims for overtime up until 31 May and told him that from now on he should get overtime signed off by his line manager as was expected (unless it was “rota’d” on). Payment was made for 150 hours’ overtime; this appeared on the claimant’s payslip (which was in evidence) for 31 May 2022.

[35]The claimant’s claim to this Tribunal for overtime (as set out in the letter of 30 June) was:(i) £8130 for 813 hours (i.e. 963 less the 150 hours which the claimant accepts had been paid) of overtime “as emergency support worker” from December 2021 to May 2022 and

(ii) £2160 for 216 hours in July 2022. The claimant’s evidence was that he had done the overtime shifts when what was informally known as a “blowout” happened – this meant a support worker not coming to work as expected at short notice. The claimant told us that he would only cover the shifts himself when unable to find a replacement. He would first ring round those of the respondent’s workers who were not already on the rota. He told us that workers were often unwilling to come in as there were problems with the respondent paying them on time. (The other witnesses Mrs Henry and Miss Soremekun agreed that there were sometimes underpayments but these, as the claimant agreed, were generally rectified in the following month’s pay packet.) If unable to find cover from amongst the respondent’s staff the claimant would contact an agency which, he said, was unwilling to send workers because of the payment problems. There were therefore situations, the claimant said, where there was no one but him to cover the shifts. In her evidence, Miss Soremekun told us that in the several months she had been the RM there were instances when she had to cover for a blowout, but this had only been necessary for a couple of hours before a replacement was found. In that situation she would not claim overtime, but would take time off in lieu later. She did not recall any occasion when she had been unable to find someone. Miss Soremekun also agreed that it would be perfectly possible for the claimant to have done some of his management work whilst also covering a blowout. It was not in dispute that Miss Soremekun would not go in to cover shifts herself at short notice because of the distance she lived away from work. We accept Miss Soremekun’s evidence as we have just set it out.

[36]In support of his claim for overtime the claimant relied on signing in books. Each book had one page per member of staff per month. We were shown pages of books for some of the relevant months in evidence and after we queried the absence of others we allowed those other pages into evidence at the respondent’s request. We only saw pages for the claimant. The respondent’s case was that the books showed every instance where the claimant attended work. The claimant’s case was that the book recorded only overtime. We prefer the respondent’s case on this point. A number of entries record the claimant working at Home B during the period when all agreed there were no children at Home B – the claimant therefore could not have been doing support work as overtime on those occasions. We were unconvinced by the claimant’s assertion that those entries amounted to overtime because he had been asked by Mrs Henry to go to Home B rather than to work at Home A. We conclude that he can only have been doing managerial work on those occasions, in other words work covered by his contracted hours. The claimant also said that when he covered a blowout he would complete his managerial hours either early in the morning or late at night (or both). In other words, he was saying that he in fact completed the support worker shifts during his contracted hours. So they cannot have been overtime – the “overtime” was him doing managerial work outside usual hours, without telling the respondent about it. But as we have said there was evidence that he should have been able to complete management work whilst doing those shifts. There was no contractual provision for payment for out-of-hours management overtime.

[37]We also note that despite there being a number of entries in the June page, there was no claim for overtime in that month. For the month of June the claimant also relied upon a table that had been prepared, also said to set out overtime. When compared to the signing in book for the same month, we note some shifts recorded on one and not the other and vice versa. The table also records precisely 40 hours done on a week when all were agreed the claimant was on holiday. The claimant told us that he had in fact done 40 hours of overtime that week. The respondent’s case, which we accept, was that the 40 hours can only in fact have been the 40 hours’ (i.e. five days’) holiday pay to which he was entitled, as in fact is recorded the bottom of the table. We also note that for most of the relevant time the claimant claims overtime for, he is claiming overtime for almost every day in the month, in contrast to the situation described by Miss Soremekun, where it might have been difficult, but it was not impossible, to find cover, as in fact she was able to do on each occasion she needed to. Ultimately we do not accept the signing in books are a record solely of overtime done by the claimant. To the extent the claimant did do emergency shifts, we do not accept that these were pre-authorised, and in any case, given the unreliability of the records, such hours are in our judgment impossible to quantify. We also consider it implausible that the claimant would have waited until June to put in a written request for overtime which he says had not been paid for six months. Put another way, the claimant has failed to show that the payment for 150 hours which the respondent made on 31 May (which on the basis of our findings was effectively an ex gratia payment) was not an adequate payment for any hours of overtime that he did. Letter of 30 July (2)

[38]The claimant’s letter of 30 July 2022 as we have said dealt with his request for seven different amounts of money. The first was for £4000 which he said been “deducted from his contract of employment” for the level 5 training which did not take place. £4000 is of course the difference between the salary for the RM job which the claimant was first offered and the home manager job which we have found he accepted and took up on 1 December 2022. The claimant’s case was that Mrs Henry had led him to believe £4000 would be deducted from his salary in order to cover training. He produced evidence in the form of a quote that in fact such a course cost significantly less than £ 4000; that much we accept. The claimant also said that Mrs Henry had given him a number to ring to arrange the course but that the man he spoke to never called him back. He did not explain why he had not tried to call the man back. Mrs Henry told us that she had indeed given the claimant the number; it had been the claimant’s responsibility to arrange the training and he had failed to do so. We prefer Mrs Henry’s evidence on this point. We also accept her evidence on the more substantial point that she never told the claimant she was deducting money from his salary for this purpose (because she was not). The statement of terms of employment the claimant signed on 14 January 2022 made clear that his salary was £36,000 and made no mention of any arrangement for a deduction of £4000 for training; on the contrary, as we have said, the document clearly sets out that the respondent would bear the cost of the training and could seek repayment of the cost from the claimant should his employment be terminated early. No deductions appear on the claimant’s wage slips.

[39]The second amount requested in the claimant’s letter of 30 July 2022 was £9999.99, i.e. three months’ salary from April to June 2022 as the RM, in addition to the salary he accepts he was paid as home manager. We have already made findings about that. The third and fifth amounts were for the overtime which we have also already made findings about. The fourth amount was described as an unjustified deduction of £1333 from his June 2022 salary. Save for his explanation contained within the letter the claimant produced no evidence about why he was owed this money and did not ask Mrs Henry about it in cross-examination. His written explanation was that the sum “accrued as an unpaid amount from [his] June 2022 salary / wages because of persistent unsustainable queries [Mrs Henry] made of 26 hours of [his] time as a General Manager--Quality Assurance at [Home B] in June 2022”. It appears therefore in fact to be another claim for unauthorised overtime, which for the same reasons as before we reject. The sixth amount was said to be £56 the claimant said he paid for a medical report upon the oral promise that the amount was refundable by the company. The seventh was for £225.33 which the claimant spent on a printer, ink and other stationery for Home 1, again said to be based on an oral promise to refund the money. The claimant also called no evidence, beyond what was in the letter, about the sixth and seventh sums and did not ask Mrs Henry about them. We can see no basis in the written conditions for the payment of the sums - there is no provision for the payment of expenses. We note finally that in the claimant’s witness statement he says the respondent made two payments to him of £56 and £500 since these proceedings were started. It is not clear what these payments were for, though of course they exceed the sum of the sixth and seventh amounts sought.

[40]It was the claimant’s case that the 30 July letter amounted to a protected disclosure. It dealt with no topic other than the request for the seven amounts dealt with above. Since it was a request only for money owed to the claimant personally we do not accept that the claimant believed that the disclosure of this information to the respondent was in the public interest; nor did the claimant say as much in his evidence. We do however accept that the letter amounts to the claimant asserting a statutory right, in particular the right not to have deductions made from his wages, though for reasons we have already set out that is not to say that we accept that the assertion was correct. We also note that the final paragraph of the letter refers to the claimant’s “threatened dismissal on 1 September 2022” – the claimant clearly believed by the time he sent the first of what he says were his disclosures that his dismissal was imminent. Letter of 31 July 2022

[41]The claimant sent another letter to the respondent the following day, 31 July 2022, headed “Re: notice of bullying and persistent subversive and unprofessional conduct against me in the workplace”. This was said to be the second of his protected disclosures. The claimant set out several instances of what he said was unlawful conduct by Mr Daniel. These included bullying, setting him up to fail and falsifying the record of the supervision meeting of 10 May 2022. On the basis of his oral evidence, we accept that the claimant genuinely believed that bullying, for example, was unlawful. We do not accept however that the claimant believed that the disclosure of this information was in the public interest – again the complaint was about matters to do with his own private interests. Nor do we accept that there was in fact bullying, nor that the claimant was set up to fail. It was in our judgment simply a response to having his performance managed in a way that he found unacceptable but which we consider to have been a reasonable exercise of management discretion. Events of 6 and 7 August 2022

[42]There was no dispute that at 10 p.m. on the night of Saturday 6 August 2022 the two members of staff due to be on shift at Home A did not attend. As a result the claimant found himself working alone at Home A in the early hours of the morning of Sunday 7 August. As we have said, on a night shift there should have been two members of staff. It was the claimant’s case that he (or others) had telephoned Mr Palmer and asked him to come in but that Mr Palmer refused. The respondent did not dispute the fact that Mr Palmer had declined to come in, but as Mrs Henry told us in her oral evidence, Mr Palmer’s contract with the respondent acknowledged that, for reasons personal to Mr Palmer, he was not able to complete particular tasks at night – in other words he had no contractual obligation to come in in the circumstances that we have described. While that evidence could have been included in Mrs Henry’s witness statement, which we found generally to be devoid of sufficient detail about some of the important points in this case, we nevertheless accept that evidence. It does seem clear to us that it was never communicated to the claimant that Mr Palmer had no obligation to go in and so the claimant formed the view that Mr Palmer was acting unreasonably; on the facts known to us however Mr Palmer was not unreasonably refusing to go in.

[43]It was also not disputed that the following morning the claimant called Mrs Henry to complain about the understaffing. There was a dispute, which we did not need to resolve, about whether his complaint had been about Mr Palmer not attending or about the two members of staff originally due to been on shift not attending.

[44]The principal point of contention between the parties about the night of 6/7 August was the contents of a log at [369], which the claimant said had been falsified to show that the home was not understaffed when it in fact was. There was no dispute that the log we saw was the document which, in his letter to the respondent of 10 August 2022 [380] (see below) the claimant says he sent to Child 2’s social workers on 7 August 2022. At the beginning of the time when the claimant was on his own, Child 2 had been missing and so technically at that point it would not have been a problem that there was only one member of staff on duty, since there was only one child in the home. However, the claimant said, Child 2 had returned home at around 4 a.m. on Sunday 7 August, meaning that the home was then unequivocally understaffed. The significance of the log, the claimant said, was that it did not show that that the child returned, instead purporting to show that the child had remained missing for the rest of the day – the log, the claimant says, was falsely showing that the home had not technically been understaffed. The log, an electronic document, contains multiple entries – one every hour or so over 24 hours from midnight to midnight recording that Child 2 was still missing, most ending with the claimant’s initials, but some ending with those of other members of staff. The claimant therefore concluded that the log must have been falsified; indeed it was his evidence that another member of staff later admitted to him that he falsified the log. However for the following reasons we conclude that the log was not falsified. As Mrs Henry explained to us, and as is evident on the face of the document, the log in fact records events from 00:05 on Saturday 6 August to 23:59. It cannot have been doctored to falsely omit that Child 2 returned at 4 a.m. on Sunday, because it does not purport to cover that time period – it stops four hours before then. We also note that the log records that it was originally recorded by the claimant and last edited by the claimant. The document carries a date as follows: “Date: Sat 6th Aug, 2022 00:28 AM”. Although it does also say that it was “Originally Recorded On Sunday 7th August 2022”, we accept Mrs Henry’s evidence to the effect that this would be when the log was saved (i.e. just after midnight, in the first minutes of the 7th). We also note that, if as would be the case if the claimant is correct, the log in fact covers 0:05 to 23:59 on Sunday 7 August, he could not have sent it to anyone on 7 August (since it would not yet have been finished), as he says he did in his 10 August letter. Email of 8 August 2022

[45]The claimant’s case was that he made the third of his protected disclosures in an email to Mrs Henry on 8 August 2022, which he sent shortly before a meeting which took place on the same day. The extent of the disclosure was as follows: Over the past weekend it was hectic as I did 3 Night Shifts in a row at [Home A]. In fact on Saturday night 6th August 2022 and because of staff blow-out, I had to work alone instead of two staff members. [Mr Palmer] is aware of these developments.

[46]Although what the claimant said there was brief, we accept that it was a disclosure of information and we accept that it was made by the claimant in the genuine and reasonable belief that disclosing the information was in the public interest (whatever other motivation he may also have had). We also accept that in the circumstances the claimant believed that it tended to show that the respondent had failed to comply with a legal obligation (i.e. to provide sufficient staff) and/or that the health or safety of Child 1 was being endangered. In the same email the claimant also informed the respondent of a recent bereavement, indicating that he would reluctantly attend the meeting scheduled that day. Meeting of 8 August 2022 and the decision to dismiss the claimant

[47]The meeting of 8 August is recorded in minutes which Mrs Henry told us, and which we accept, are a verbatim transcript of a recording. The minutes are headed “Meeting: [Claimant] competency support plan July 2022” (the July date is evidently a reference to the date of the plan rather than the meeting; there was no dispute about the date the meeting in fact took place). The claimant disputed that the minutes were complete. He did not dispute that they accurately reflected the recording which was made, but said that the recording had been stopped at various points. The claimant said that at those points he complained about Mr Palmer’s presence at the meeting on the basis that he had recently complained to the respondent about Mr Palmer’s conduct and also that he complained about Mr Palmer’s conduct in not going in on the night of 6/7 August. Mrs Henry disputed that the recording was stopped at any point; we prefer her evidence. Even had the claimant complained about Mr Palmer’s presence, we consider that in light of our findings above – both about Mr Palmer’s genuine concerns about the claimant’s work and also about the reason Mr Palmer had not gone to the home on 7 August – it was reasonable for Mr Palmer to have been involved in the meeting.

[48]The meeting notes record a long discussion between the claimant and Mrs Henry about Mrs Henry’s concerns/criticisms of the claimant’s work. Mrs Henry went through, point by point, four requirements in the support plan which, having heard the claimant’s explanations, she concluded were each “upheld”, i.e. she considered the claimant had failed to meet the requirements. Although the meeting was “adjourned” without any formal decision having been indicated to the claimant, it is clear to us in the circumstances that by the time the meeting ended Mrs Henry had made the decision that she would dismiss the claimant. We base this on the claimant’s evidence, which was that Mrs Henry and Mr Palmer were “dancing”; he did not of course mean this literally, but rather meant that it was his impression that they felt they had grounds to dismiss him. It is also clear from the minutes themselves that the claimant understood what the likely result was – in one passage towards the end he suggests that they “work it out” if the respondent does not require his services any more. There was some dispute about whether there was a conversation afterwards between the claimant and Mr Palmer in which the claimant was told it was likely that he would be dismissed; we did not need to resolve that dispute since it was clear on everybody’s evidence that the claimant had already been given that impression, during the course of the meeting. Whether that impression was reinforced in a later conversation adds little in our view. We do find that the claimant was not in fact dismissed on 8 August – Mrs Henry’s decision was not formally communicated to him on that day, the meeting was explicitly “adjourned”, and although the claimant was certainly left with the impression that it was likely that he would be dismissed, equally clearly he was not in fact told that he was dismissed. We accept Mrs Henry’s evidence that in light of the claimant’s recent bereavement she did not wish to communicate the decision to the claimant on 8 August. She accepted that in hindsight she might have handled the situation differently. What is particularly significant for the purposes of this case is that, having made the findings we have just set out, we reject the claimant’s suggestion that the decision to dismiss him only came about later when he made the referral to LADO (see below) – this was to some extent inconsistent with his own evidence (about the “dancing”), let alone with the respondent’s evidence.

[49]There was some issue between the parties as to whether the claimant had been put on “bereavement leave” but nevertheless went into work the day after the meeting, on 9 August. We did not need to resolve that dispute as it did not seem to us to be relevant to any of the issues we had to decide. Letter of 10 August 2022

[50]On 10 August 2022 the claimant sent the letter which we have already referred to, by email, to Mrs Henry. The letter requested an urgent children’s safeguarding investigation into staffing problems at Home A on 6, 7 and 9 August 2022. It set out, this time at some length, the claimant’s concerns about having been left alone on the night of 6/7 August, Mr Palmer’s apparent refusal to attend, and about the claimant’s belief that the log we refer to above had been falsified. We accept that that this was a disclosure of information made by the claimant in the genuine and reasonable belief that disclosing the information was in the public interest (whatever other motivation he may also have had). We also accept that in the circumstances the claimant believed that it tended to show that the respondent had failed to comply with a legal obligation (i.e. to provide sufficient staff) and/or that the health or safety of Child 1 was being endangered. Grievance hearing

[51]On 15 August 2022 a grievance hearing was conducted by an external consultant engaged by the respondent to consider the claimant’s letters of 30 July and 1 August 2022 (we take the latter date in fact to be a reference to the letter of 31 July). The claimant’s complaints about Mr Daniel and about deductions from wages were considered. The claimant’s complaints were not upheld, save that it was recommended that the claimant be paid for the fifth, sixth and seventh amounts we refer to above. We of course are not bound by those findings. We note in particular that the consultant appears to have accepted at face value the claimant’s assertion that the signing in books were a complete record of overtime, which we have found not to be correct.

[52]In her oral evidence Mrs Henry accepted that it might have been better for her not to have decided to dismiss the claimant before knowing the results of this grievance hearing. We agree. Since the grievance hearing was not itself identified as one of the issues in the case, we make no further findings about it. Letter of 16 August 2022

[53]On 16 August 2022 the claimant sent a letter, which had as the recipients the local safeguarding children’s board, two named social workers and a named Ofsted inspector. There was some question over whether the letter reached any or all of those people. We were not provided with any information about whether there was any response, but in light of Mrs Henry’s acceptance that the letter was also sent to, and received by her (i.e., for these purposes it was received by the respondent) we did not need to consider whether it was in fact received by others. The letter set out, again at some length, the claimant’s concerns about understaffing, Mr Palmer’s actions on 6/7 August and his belief that the log had been falsified. Again, we accept that the letter was a disclosure made by the claimant in the genuine and reasonable belief that disclosing the information was in the public interest (whatever other motivation he may also have had). We also accept that in the circumstances the claimant believed that it tended to show that the respondent had failed to comply with a legal obligation (i.e. to provide sufficient staff, and also possibly to keep accurate logs) and/or that the health or safety of Child 1 was being endangered. We were also shown a “LADO referral form” filled in by the claimant on the same day and sent to a different local council; it covered the same ground, in respect of understaffing and Mr Palmer, as the letter of the same date had done. Dismissal

[54]On 18 August 2022 Mrs Henry emailed the claimant to say that following the meeting of 8 August the claimant’s employment had been formally terminated. A letter attached to the email, which was dated 8 August, told the claimant: “effective of Monday 8th August, your position as General manager for children in residential care shall be formally terminated due to concerns around reporting and recording as a manager”. The letter made no mention of any right of appeal. Despite some suggestions made on behalf of the respondent during the course of the hearing, we do not accept that this letter somehow backdated the claimant’s dismissal. The claimant was clearly informed of his dismissal only on 18 August 2022; that is therefore the date he was dismissed by the respondent. But the letter does provide further support for our conclusion that the decision to dismiss was in fact made on the 8th.

[55]There was no dispute that the decision to dismiss the claimant was made by Mrs Henry. For the reasons we have set out above, we make the clear finding that the decision to dismiss the claimant had nothing whatsoever to do with any of the disclosures he relied upon, nor anything whatsoever to do with his request for the seven sums of money we refer to above. We accepted Mrs Henry’s evidence on oath about this. We found that the respondent genuinely and reasonably concluded that the claimant had failed to meet the standards required of him during his probation period, notwithstanding any concerns we might have had about some aspects of the process followed by the respondent during his recruitment and during the later course of his employment. Further, as we have already found, the decision was made to dismiss the claimant by 8 August, i.e. before the some of the disclosures. Other matters

[56]On 22 August 2022 the claimant wrote a letter to Mrs Henry appealing against the termination of his employment. It appeared to be common ground that the respondent did not respond to this letter. Given that there was no claim for “ordinary” unfair dismissal in this case (since the claimant did not have two years’ service with the respondent) there is no need for us to make any further findings about the appeal (or rather the lack of one). LAW Protected disclosures

LAW

[57]The law provides certain protections for people, commonly described as whistleblowers, who make “protected disclosures”. By s 43A, a protected disclosure means a qualifying disclosure made by a worker (which includes an employee) in accordance with any of sections 43C to 43H. By s 43B, a qualifying disclosure means any disclosure of information which, in the reasonable belief of the person making the disclosure, is made in the public interest and tends to show one or more of a number of things (“the wrongdoing”). One of those things (s43B(d)) is that that the health or safety of any individual has been, is being or is likely to be endangered. Another (s 43B(b)) is that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.

[58]A qualifying disclosure is made in accordance with section 43C if it is made to an employer. In such a case, the Tribunal will consider the following. First, was there a disclosure of information? Depending on the content and context, an allegation may amount to information (Kilraine v London Borough of Wandsworth

[2018] ICR 1850

). It is immaterial that the recipient is already aware of the information (s 43L(2)). Several communications, even to multiple recipients, may be read together (Norbrook Laboratories (GB) Ltd v Shaw

[2014] ICR 540

). Second, did the claimant believe two things:(i) that the information tended to show the relevant wrongdoing and

(ii) that the disclosure was in the public interest. So far as both beliefs (i) and (ii) are concerned, it is the claimant’s belief at the time of making the disclosure (not any later) that is relevant, and the belief must be a genuine, subjective belief.

[59]So far as (i) is concerned, the reasonableness of the belief may depend on the claimant’s status (i.e. layperson or expert – Korashi v Abertawe Bro Morgannwg Local Health Board

2012 IRLR 3

). There must be a belief not just that there was wrongdoing, but that the information tends to show it (Soh v Imperial College of Science, Technology and Medicine EAT 0350/14).

[60]So far as (ii) is concerned, there is no requirement that the information is provided in good faith. There is a distinction between belief, which is relevant, and motive, which is not (Virgin Active Ltd v Hughes

2023 EAT 130

). In deciding whether it was reasonable for the claimant to believe that disclosure was in the public interest, relevant factors to be weighed include: the size of the group affected by the wrongdoing, the nature of their interests and the extent to which those interests were affected, the nature of the wrongdoing and the identity of the wrongdoer (Chesterton Global Limited v Nurmohamed

[2018] ICR 731

). Automatically unfair dismissal for making a protected disclosure

[61]S 94 of the Employment Rights Act 1996 “ERA” confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that they were dismissed by the employer (see s 95 ERA), but in this case the respondent admits that it dismissed the claimant.

[62]S 103A ERA provides that an employee who is dismissed shall be regarded 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. In such circumstances the employee it said to be subject to an automatically unfair dismissal, i.e. there is no need for the Tribunal to consider generally whether the dismissal was fair – it is deemed not to be. Where there are multiple protected disclosures, the Tribunal is required to ask itself whether, taken as a whole, the disclosures were the principal reason for the dismissal: El-Megrisi v Azad University EAT 0448/08.

[63]In a case (as here) where an employee has less than two years’ service with the employer, it is for the employee to prove that they made a protected disclosure and to produce some evidence to suggest that the principal reason for the dismissal was the protected disclosure. If that is done, the Tribunal will make primary findings of fact then consider what was the reason on the basis that the burden will be on the employer to establish it, without the Tribunal being bound to find it was the reason suggested by the employee should it reject the reason suggested by the employer (Kuzel v Roche Products Limited

[2008] ICR 799

). Detriment for making a protected disclosure

[64]By s 47B ERA, a worker (including an employee) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. Enforcement of the right is by way of complaint to the Tribunal under s 48 ERA. An employee may not complain that a dismissal amounts to a detriment (see s 47B(2); instead the remedy there lies under s 103A (see above)). Otherwise, the word detriment is not defined in ERA. In Ministry of Defence v Jeremiah

1980 ICR 130

Brandon LJ said that it meant simply “putting under a disadvantage”, while Brightman LJ said that there is detriment “if a reasonable worker would or might take the view that [what the employer did] was in all the circumstances to his detriment”. There is no requirement for the detriment to be of any particular severity, though it must be a detriment to which the employee was subject “in the employment field” (Tiplady v City of Bradford Metropolitan District Council

2020 ICR 965

[65]By operation of s 48(2) ERA, while it is for the claimant to prove that they made a protected disclosure and that they were subjected to a detriment by the employer, if they prove those things, it will be for the employer to prove the ground on which any act (or failure to act) was done – the respondent will be required to prove that the protected disclosure was not a material influence, i.e. that it played no part whatsoever in the act – Fecitt v NHS Manchester

[2012] ICR 372

. (In contrast with a dismissal for whistleblowing, in which case the issue is whether the whistleblowing was the principal reason for the dismissal.) Breach of contract and wrongful dismissal

[66]By operation of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994/1623, an employee may complain to an Employment Tribunal to recover damages or any other sum due for a breach by their employer of their employment contract, provided that the claim arises or is outstanding on the termination of their employment (subject to some exceptions that do not apply to this case).

[67]One such breach could be a failure to give notice amounting to a “wrongful dismissal”, which occurs where an employee is dismissed without notice where summary dismissal was not justifiable. However in this case the claimant accepted that he was paid in lieu of notice, so there can be no damages due. Unauthorised deductions from wages

[68]S 13(1) ERA provides that an employer shall not make an unauthorised deduction from wages of a worker employed by him (except as authorised in circumstances which are not relevant to this case). Paying less than is due under the contract is one example of such a deduction. An employee has a right under s 23 ERA to complain to an Employment Tribunal of an unauthorised deduction. Subject to the usual provisions extending time to facilitate early conciliation, a claim under s 13 must be presented to an Employment Tribunal within a period of 3 months beginning with the date of the payment (or the date the payment was due if it was not made) or, if the Tribunal is satisfied that it was not reasonably practicable to have done so, within such further period as the Tribunal considers reasonable. Where there is a series of deductions, time runs from the last one. The Tribunal has no jurisdiction to consider complaints relating to deductions made before the period of two years ending with the date of presentation of the complaint. CONCLUSIONS Time limits (Issue 1)

CONCLUSIONS

[69]In light of our findings below there was no need for us to consider the issue of time limits. It was also not a point taken by the respondent. As regards the wages claims, it was realistically conceded that even if the claims were out of time as claims for unauthorised deductions from wages, they could have been brought as breaches of contract outstanding at the time of dismissal, and so would have been in time on that basis. Protected disclosures (Issue 4)

[70]As will be clear from our findings above, no protected disclosure was made on 30 July 2022 (issue 4.1.1.1) because the claimant did not, nor could he have reasonably believed, that disclosure of the information was in the public interest – the letter dealt solely with claims, which concerned only him personally, that the respondent owed him money. (This could of course have satisfied the other part of the “belief” test, that the information tended to show that there was a failure to comply with a legal obligation, but both elements need to be satisfied in order for there to have been a protected disclosure.)

[71]For similar reasons, the claimant’s complaint of 31 July 2022 (issue 4.1.1.2) was not a protected disclosure. The complaint was more along the lines of a grievance about his line manager, which had to do only with the claimant’s private interests – the claimant did not reasonably believe that disclosure was in the public interest. This applies to all aspects of the 31 July complaint, including the allegation that Mr Daniel falsified the record of the meeting. But on the basis of our findings, nor can the claimant reasonably have believed that the record was falsified (i.e that any of the things set out in s 43B(1) ERA had occurred), though we accept that he reasonably believed that other aspects of the complaint (e.g. that he was being bullied) did tend to show, for example, the breach of a legal obligation.

[72]The email of 8 August (issue 4.1.1.3) did in our view amount to a protected disclosure. In the context of what the respondent already knew (that more than one member of staff should be on duty at night), we accept that the claimant reasonably believed that the information in the email, sparse as it was, tended to show that the respondent was failing to comply with its legal obligations to provide sufficient staff and possibly also that the safety of the children was being endangered. Given the subject matter, we also accept the claimant’s evidence that he had had a genuine belief at the time that disclosure was in the public interest (whatever else may have been his motivation) and that that belief was reasonable. For the same reasons, we reach the same conclusions about the emails/letters of 10 and 16 August (issues 4.1.1.4 and 4.1.1.5) which provided further detail about alleged understaffing etc. . Automatically unfair dismissal (Issue 2)

[73]We have found that the decision was made to dismiss was made on 8 August, so as a matter of logic the disclosures of 10 and 16 August could not have been the reason or the principal reason for the dismissal. More generally, as regards all the pleaded disclosures, whether before or after the dismissal, we accepted Mrs Henry’s evidence that the principal, indeed the only, reason for the dismissal was (in short) the respondent’s conclusion that the claimant had “failed” his probation period. Whatever the failings in the procedures adopted might have been, we accept that Mrs Henry’s views about the standard of the claimant’s work were genuinely held and were the real reason for the dismissal. If there was a need for the respondent tor prove that, it has succeeded in doing so. This conclusion holds whether the effect of the pleaded disclosures is considered individually or cumulatively.

[74]It was also fairly conceded on the respondent’s behalf that it was open to us consider whether the dismissal was automatically unfair for a different reason, namely that the claimant had asserted the statutory right not to have unauthorised deductions made from his wages by sending the letter of 30 July. For the same reasons as above, this was not the reason or the principal reason for the claimant’s dismissal.

[75]In summary, regarding issue 2, we find that the claimant was not unfairly dismissed, either for making a protected disclosure or for asserting a statutory right. Detriment for making protected disclosures (Issue 5)

[76]It was the claimant’s case (issue 5) that the detriment he was subjected to was that the respondent fabricated a performance/capability case against him. We have found that the respondent did no such thing. We further note that, fabricated or not, the beginning of the performance/capability case against the claimant came weeks before any protected disclosure he made. Wrongful dismissal (Issue 3)

[77]The claimant has accepted that he was paid in lieu of notice so he has no claim for damages for wrongful dismissal. For the avoidance of doubt we record here that the respondent made no suggestion that the claimant was guilty of gross misconduct. Breach of contract and unauthorised deductions (Issues 6 and 7)

[78]Whether considered as complaints of unauthorised deductions from wages or for breaches of contract outstanding upon dismissal, the issue for the claims for the seven sums detailed in the 30 July letter was whether there was an entitlement for payment under the claimant’s employment contract. We have already explained why there was no such entitlement to any of the amounts claimed. Concluding remarks

[79]EJ Dick wishes to apologise to the parties for the time it has taken to prepare this judgment and reasons, and to make clear that the delay was not caused by either of the other members of the Tribunal, but by pressure of other work. APPENDIX: List of Issues set out by EJ Maxwell following the hearing of 3 October 2023

CONCLUSIONS

[1]Time limits 1.1 Whether the Claimant’s claims were presented within the applicable statutory time limit.

[2]Unfair dismissal 2.1 Was the reason or principal reason for dismissal that the Claimant made a protected disclosure? If so, the Claimant will be regarded as unfairly dismissed.

[3]Wrongful dismissal / Notice pay3.1 What was the Claimant’s notice period?

3.2 Was the Claimant paid for that notice period?

3.3 If not, was the Claimant guilty of gross misconduct (doing something so serious that the Respondent was entitled to dismiss without notice)?

[4]Protected disclosure4.1 Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:4.1.1 What did the Claimant say or write? When? To whom? The Claimant says disclosures were made on these occasions:4.1.1.1 30 July 2022, email to Respondent complaining of wages due but unpaid;

4.1.1.2 31 July 2022, email to Respondent complaining of threats and false information;

4.1.1.3 8 August 2022, email to Respondent about staff shortages;

4.1.1.4 10 August 2022, email to Respondent raising safeguarding concerns;

4.1.1.5 16 August 2022, email to Local Authority raising safeguarding concerns.

4.1.2 Did this disclose information?

4.1.3 Did the Claimant believe the disclosure of information was made in the public interest?

4.1.4 Was that belief reasonable?

4.1.5 Did the Claimant believe it tended to show that:4.1.5.1 a person had failed, was failing or was likely to fail to comply with any legal obligation;

4.1.5.2 the health or safety of any individual had been, was being or was likely to be endangered;

4.1.6 Was that belief reasonable?

4.2 If the Claimant made a qualifying disclosure, it was a protected disclosure because it was made to the Claimant’s employer. or

4.3 If the Claimant made a qualifying disclosure, was it made within ERA 43C or F? If so, it was a protected disclosure.

[5]Detriment (Employment Rights Act 1996 section 48)5.1 Did the Respondent do the following things: 5.1.1 Fabricate a performance / capability case.

5.2 By doing so, did it subject the Claimant to detriment?

5.3 If so, was it done on the ground that the Claimant had made a protected disclosure?

[6]Unauthorised deductions 6.1 Did the Respondent make unauthorised deductions from the Claimant’s wages and if so how much was deducted?

[7]Breach of Contract 7.1 Whether the Claimant is entitled to recover training fees for third party training not provided.