Mr A Estcourt v Morrison Energy Services Ltd: 3320594/2021

EMPLOYMENT TRIBUNALS

Case No 3320594/2021

Between

Mr A EstcourtClaimant

Morrison Energy Services LtdRespondent

Before

Employment Judge Cowen

Ms Dervin (instructed by counsel) for claimant

Mr Davis (instructed by representative) for respondent

Date 5 August 2025

JUDGMENT

[1]The Claimant was automatically unfairly dismissed by the Respondent, contrary to s.103A Employment Rights Act 1996.

[2]The Claimant was subject to detriments (4b, 4c, 4d, 4e, 4f, 4g,) due to making protected disclosures, contrary to s.47B Employment Rights Act 1996.

[3]Remedy will be decided separately. _____________________________ Employment Judge Cowen Date: …29 November 2024…………..

REASONS

hearing.

[1]This case was heard over 5 days. Both parties were represented; the Claimant by counsel and the Respondent by in-house counsel. I was provided an agreed bundle of documents. Mr Estcourt and Mr Huntly gave evidence for the Claimant and Mr Atkins, Mr Brown and Mr Bailey gave evidence for the Respondent in person. Ms Laing gave evidence for the Respondent by CVP with the permission of the Tribunal.

[2]Both sides provided written submissions which were considered prior to their oral closing submissions.

[3]References to R2 (respondent 2) are references to Cadent Gas Limited who initially were a party to this claim, but were dismissed from it, prior to the final hearing. Finding of facts Case No: 3320594/2021 2

[4]The Claimant started working for the Respondent’s predecessor Skanska in 2011. In April 2013 he started working on a contract called TriiO. This was a contract between Skanska and National Grid (later Cadent) and the Respondent’s predecessor Morrison Utility Services. This contract continued to March 2021. The Claimant was initially a Temporary Works Manager and subsequently in May 2018, he was given the title of Chief Engineer.

[5]The essence of the Claimant’s work was to design the required engineering of excavations required in order to replace gas mains in North London. That may be an oversimplification, but one which on a basic level describes the work done. The Claimant worked with another colleague in the temporary works team, Mr Paul Huntley. They were obliged to check each other’s work before it could be used, in order to ensure that compliance and health and safety were adhered to.

[6]The nature of the Claimant’s work was very regulated and required a keen eye for detail and a constant awareness of health and safety issues associated with the work.

[7]The temporary works that the Claimant designed were subject to the Health and Safety at Work Act and the Construction and Design and Management Regulations 2015. In order to put these regulations into practice a Code of Practice, BS 5975 was introduced in 2019. Together these various legislation and guidance were the rules, by which the Claimant worked.

[8]Towards the end of the TriiO contract it became clear that Skanska were not going to apply for the new contract. The Respondent did apply for the new contract and a working group was set up to ensure a smooth transition between Skanska and the Respondent in dealing with the client Cadent. The new contract, named CMO was due to start on 1 April 2021.

[9]As part of that preparation it came to the Claimant’s attention that James Irving, whom the Claimant reported to at the Respondent was proposed to be the Designated Individual under BS 5975. Mr Irving was a health and safety specialist and not an engineer. The Claimant had the view that Mr Irving would not be able to fulfil the role of Designated Individual due to his lack of engineering qualification and experience and that he was not therefore competent under BS5975.

[10]On 12 November 2020 the Claimant wrote an email to Russell Brown, who was the Interim Head of Contract. He was in charge of the transition between Skanska and the Respondent and putting in place processes to take over the contract on 1 April 21. In the email the Claimant said “Currently only PH and I are employed in London Temp works team and as far as I have been informed we will be the “only employees within the team come April 21.” He said “I was wondering if there is any information regarding how temp works is to be managed “. He also asked “Do we have any information regarding how LDPs are to manage temp works”. He also Case No: 3320594/2021 3 said that “ I understand you will most likely not have the answers to these queries however it is vital that this information is passed on to the team SAP to enable the team to react to the contractual arrangement and safety management system being implemented”.

[11]Russell Brown responded the following day to say he did not have all the answers. He reassured the Claimant there had been a selection process. He also asked the Claimant to check with regard to the temp works procedure with Cadent.

[12]On 28 January 2021, in a Teams meeting the Claimant raised with Mr Irving the fact that he did not believe him to be competent to take on the role of Designated Individual. Mr Huntly was also present and heard the Claimant say this. Given that Mr Irving was also experienced in the construction industry he would have been aware of the fact that there were regulations, particularly with regard to health and safety aspects of the work. In response Mr Irving said he thought he was competent to do the role. The Tribunal accepted that both the Claimant and Mr Irving understood the specific requirement for a Designated Individual that the Claimant was referring to and which the Claimant later sent to Mr Irving and others, from TWF. This was the first time the Claimant had said this directly to Mr Irving, but he repeated it on a number of occasions between then and 20 April 21.

[13]The Tribunal accepted the same conversation, or one which contained the same information was given by the Claimant on 11 and 25 February and, 6 April 2021. It was also said in a similar meeting to which Chris Rison of Cadent was present on 17 March 2021, again in the presence of Mr Huntly.

[14]The Claimant accepts that he was TUPE transferred to the Respondent when the new CMO contract began on 1 April 2021. He did so under protest due to issues he had raised about the transfer of his terms and conditions which he said had not been satisfied at that time of the transfer. The Claimant was not provided with a laptop by the Respondent, so was unable to produce some of his work, when outside the office, as he had no access to the system and the appropriate CAD software.

[15]In a meeting on 6 April 2021, after the TUPE transfer, when the Claimant was now line managed directly by Mr Irving, he mentioned again that Mr Irving was not the competent person to be Designated Individual and that the Respondent was now acting without an appointed Designated Individual which was also contrary to the regulations. He also raised an issue about site hoardings which were being proposed to use across the project and which he considered was a risk to both staff and the public. He said that the calculations of this hoarding showed it was not safe.

[16]The Claimant also went on to send an email to Mr Irving on 6 April 2021 setting out again his issues in relation to Mr Irving not having the required competence to be Designated Individual. He also include in this email a copy of the TWF guidance on appointing a Designated Individual, outlining Case No: 3320594/2021 4 the required competencies. Mr Irving politely thanked him for the attachment which he said was useful and informed the Claimant that he was “upskilling myself from TWS to TWC” by booking himself on a training course. This was an admission by Mr Irving that he did not have the qualification referred to in the TWF document.

[17]On 8 April 2021 the Claimant emailed Sean Kelly the Executive Director of the Respondent. In this email he attached the same TWF documents and told Mr Kelly that he needed to consider this before appointment a suitably competent person. The Claimant did not receive a reply to this email.

[18]On the same day the Claimant also emailed Russell Brown and told him that the failure to appoint an engineering lead on the CMO was a breach of BS5975 and that a failure to have a competent Designated Individual is a breach of CDM Regulations.

[19]On 14 April 2021 there was an emergency situation which the Claimant was asked to assist with. He contacted Ollie Shanks at Cadent (his only contact at Cadent since the start of the CMO contract). Over the course of 14 and 15 April the Claimant was able to assist Cadent to resolve the emergency.

[20]On 15 April 2021 and 20 April 2021 the Claimant had further meetings with Mr Irving in which he raised the same points again.

[21]On 20 April 2021 the Respondent received a letter from Cadent asking for the Claimant to be removed immediately from the contract. It outlined that the reason for this was that he had “been found to be obstructive in his behaviours and unsupportive in terms of operations”.

[22]On 21 April 2021 Glenn Haylett, lead HR Business Partner, met with the Claimant and told him that he was removed from the contract and suspended from work on full pay. The Claimant said he wanted to challenge the removal and asked what to do. Mr Haylett told him to write to him and provide as much detail as possible as to why he should not be removed, as the Respondent would need this to challenge the removal. A letter confirming this situation said that the Claimant would be updated to let him know about what was happening, including the response by the Respondent to Cadent.

[23]On 25 April 2021 the Claimant wrote a long email to Mr Haylett to provide him with the required information. The Claimant understood that this would be used by the Respondent to compile a challenge to the removal. In fact it was not referred to at all in correspondence between Cadent and the Respondent. The challenge letter was not sent until 2 June and merely asked them to reconsider and to provide reasons in depth.

[24]On 7 June 2021 the Claimant asked for an update about the challenge, he was told by Mr Haylett that this was “being picked up as part of your SOSR meeting with the Employee Relations Team”. This was the first time the Case No: 3320594/2021 5 C laimant had been told of an SOSR process.

[25]On 14 June 2021 the Claimant raised a grievance which raised three central points about a) not having been updated about the challenge to the removal and b) about Mr Irving being appointed Designated Individual when he was not competent to do so and c) breaches of health and safety with regard to not being able to conform to legal obligations. This grievance was acknowledged the same day and sent to Mr Hylett ( who was one of the people complained about)

[26]On the same day the Claimant was sent an invitation to an SOSR meeting. The process was to be run by Mr Brown, who was also part of the content of the Claimant’s grievance. The Claimant therefore objected to Mr Brown being involved in the SOSR process.

[27]On 17 June 2021 Lindsay Laing wrote to the Claimant to say that the SOSR process was suspended until they found someone else to lead it.

[28]Also on 17 June 2021 Steve Hewings, head of Health & Safety invited the Claimant to a grievance meeting on 18 June 2021. After that meeting the Claimant sent Mr Hewings all the documentary evidence he relied upon.

[29]On 22 June Martin Atkins wrote to the Claimant to say that he was taking over the SOSR process and the meeting would be held on 25 June 2021. At this time, no response had been received by the Respondent to their challenge letter and the Claimant had not been told of this situation.

[30]On 23 June 2021 the Claimant asked how the SOSR process and his grievance would proceed and was told they would run concurrently.

[31]On 28 June 2021 Cadent responded to the Challenge saying “it was brought to our attention that the individual had been found to be obstructive in his behaviours and unsupportive in terms of operations”. This added no further detail to the original letter and gave the Respondent no grounds on which they could consider the removal, or object to it.

[32]On 5 July 2021 the Claimant received the outcome of his grievance which dismissed all his complaints although the outcome said that there were some aspects of the temporary works process that are “under resourced and some TW [temporary works] check review processes that are not followed”. The outcome also said “The SOSR process was not started until confirmation was received from Russell Brown that that challenge letter had been sent”.

[33]Around this time the Claimant was looking at vacancies and indicated in the second SOSR meeting on 13 July 2021 that he was interested in two positions. It transpired that the closing date for these had passed, or were not still available. Neither position appeared on the list of vacancies sent to Case No: 3320594/2021 6 the Claimant on 6 July 2021 .

[34]On 8 July 2021 the Claimant appealed the outcome of his grievance in a 12 page document. A meeting with Kenny Clark was held on 23 July to deal with these issues. The outcome letter dated 17 August referred to the fact that the Claimant asserted he had made whistleblowing disclosures and that he believed he had been stood down from the Cadent contract due to this. Kenny Clerk was therefore aware of these points – although he wrongly said that they were being dealt with in the SOSR process. He did however state that “ Cadent have not been forthcoming with responses or the requested evidence to support their request and this is being chased regularly by MES management and HR”.

[35]On 25 August 2021 Mr Irving wrote to Lindsay Laing outlining his views on the Claimant mostly in the preparation of the CMO contract (ie before the Claimant was TUPE transfer to the Respondent).

[36]A letter was sent to the Claimant by Mr Atkins on 2 September 2021. The letter outlined that at the time of the second meeting, no response had been received from Cadent explaining the reasons for the removal. The letter also stated “ You queried how the SOSR process could continue without Cadent providing evidence to substantiate their claim which was the basis for their request for you to be removed from the contract. I explained that the contract clause is open to interpretation, but I did not believe it necessarily requires the client to prevent (sic) evidence to support their request for your (sic) to be removed from the contract” Mr Atkins then asked the Claimant to a final meeting on 7 September 2021.

[37]The meeting was commenced on 7 September 2021 and then adjourned until 10 September on the basis that Mr Atkins would be able to read the outcome of the grievance appeal. At that meeting Mr Atkins told the Claimant that there was a business decision not to use the information the Claimant had provided to challenge the removal request. The conclusion of the meeting was that the Claimant was dismissed as of 10 September 2021.

[38]The Claimant then appealed the dismissal decision. This was referred to Dean Bailey an employee relations specialist who sent up a meeting with Nick Griffiths on 1 October 2021. A further meeting on 7 October was set up for Mr Griffiths to provide the outcome to the Claimant, but he chose not to attend. A letter dated 7 October 2021 was sent to confirm the dismissal of that appeal.

The Law

[39]Public Interest Disclosure 43B.— Disclosures qualifying for protection. Case No: 3320594/2021 7(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 ]2 tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

[40]In order to be considered a ‘qualifying disclosure’ the Claimant must show that information was passed to the employer. This amount to facts; Cavendish Munro Professional Risks Managed Ltd v Geduld

[2010] IRLR 37

, EAT.

[41]The five stages were considered in Williams v Michelle Brown AM (UK/EAAT/0024/19);a. Disclosure of information,

b. The Claimant must believe the disclosure to have been in the public interest, See Chesterton Global v Nurmohamed

[2017] EWCA Civ 979

c. The belief must be reasonably held,

d. The Claimant must believe that the disclosure tends to show one of the matters in s.43B (a) to (f)

e. The belief must be reasonably held.

[42]It is for the Claimant to prove that there was a legal obligation, but the Claimant’s assertion that ‘a person’ is in breach of the obligation need not be accurate. A mistaken Claimant, whose assertion turns out to be false may still have the protection of s.43B.

[43]The issue of public interest is serves where there is a clear issue of Health and Safety, as in this case.

[44]S.103A Automatic Unfair Dismissal “An employee who is dismissed shall be regarded for the purposes of this Case No: 3320594/2021 8 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.”

[45]The burden of proof lies on the Respondent, who must show that the reason, or principle reason for dismissal was not the protected disclosure. See Kuzel v Roche Products Limited

[2008] EWCA Civ 380

. The Tribunal must consider what led the decision maker to act in the way they did.

[46]Where there are a number of protected disclosures the Tribunal does not have to consider each one individually, but may consider their cumulative impact.

[47]Detriment Section 47B ERA states; “(1)A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A)A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a)by another worker of W's employer in the course of that other worker's employment, or (b)by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B)Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C)For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D)In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker— (a)from doing that thing, or (b)from doing anything of that description. (1E)A worker or agent of W's employer is not liable by reason of subsection(1A) for doing something that subjects W to detriment if— (a)the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and (b)it is reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B).] (2). . . This section does not apply where— a)the worker is an employee, and (b)the detriment in question amounts to dismissal (within the meaning of Part X). (3)For the purposes of this section, and of sections 48 and 49 so far as Case No: 3320594/2021 9 relating to this section, “ worker ”, “ worker’s contract ”, “ employment ” and “ employer ” have the extended meaning given by section 43K. “

[48]Jesudason v Alder Hey Children’s NHS Foundation Trust

2020 EWCA Civ 73

, says that the concept of detriment is wide and that it must be judged from the view point of the worker. There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment.

[49]Ministry of Defence v Jeremiah

1980 ICR 13

, CA said that ‘detriment’ meant ‘putting under a disadvantage’.

[50]There requires a causal nexus between the act by the Respondent and the Protected Disclosure. The Tribunal are therefore required to consider the employer’s reason or motive for the treatment. Aspinall v MSI Mech Forge Ltd EAT 891/01 set out that the Protected Disclosure has to be “the real reason, the core reason, the causa causans, the motive for the treatment complained of”.

[51]Fecitt and ors v NHS Manchester (Public Concern at Work intervening)

2012 ICR 372

, CA, provides the test the Tribunal must apply as, whether the Protected Disclosure materially (in the sense of more than trivially) influenced the employer’s treatment of the whistleblower.

[52]The Tribunal must take into account Bolton School v Evans

2006 IRLR 500

, EAT which stated that the conduct of the employee and his Protected Disclosure are separable and therefore the reason for the detriment needs to be considered carefully. Observations on the Evidence Missing Evidence

[53]The Tribunal were concerned to find some significant evidence missing in this case, despite detailed case management orders being given to two professionally represented parties. The following examples were of particular concern;

[54]Mr Irving did not attend to give evidence, he has therefore not been subject to cross examination and his evidence has therefore not been tested. The tribunal therefore have not given any significant weight to Mr Irving’s witness statement. This has left a number of unanswered points and gaps in the Respondent’s evidence.

[55]The Respondent has failed to provide documentary evidence in relation to the SOSR process which it adopted, the vacancies which the Claimant indicated his interest in and emails between Mr Brown and Cadent. All of these would have been of assistance to the Tribunal in their decision making and it is noted that the Respondent failed to provide them. Case No: 3320594/2021 10

[56]The Tribunal also noted that the Respondent had control of producing the bundle and sought to criticise the Claimant for not adding a copy of the CDM Regulations to the bundle. Given that this was legislation which was central to the issues in this case, the Tribunal felt that it could have been produced by either party and that not producing it was not helpful to the Tribunal. Observation on witnesses

[57]The Tribunal found the claimant to be a straightforward honest witness, who conceded where appropriate, but whom was genuine in his beliefs.

[58]In contrast the Tribunal was not impressed with the candour of the Respondent’s witnesses. In particular the Tribunal were disappointed to see that the Respondent’s HR witnesses appeared to have a lack of knowledge/disregard for fair process. Equally Mr Atkins, whose as an experienced manager in matters of disciplinary and grievance appeared not to understand his role in ensuring that fairness permeates all processes. Protected Disclosures

[59]Considering each of the alleged protected disclosures as set out on the agreed list of issues;a. On 12.11.20 informing Russell Brown by email of his concerns over how temporary works would be managed in supporting R2 The Claimant did email Mr Brown, but his email did not make any reference to concerns of a breach of health and safety issue. This does not therefore amount to protected disclosure under s.43B.

b. On 28.1.21, during a Microsoft Teams meeting with Mr Jim Irving open brackets capital R1, disclosing that: i. R1's proposed designated individual ( Mr Irving) was not competent to be appointed under BS5975:2019; ii. ... (removed) iii. ... (removed) iv. With R1's appointment of a Designated Individual who was not competent, and R2's non compliant temporary works process and procedure; Both Rs would be in breach of the Health and Safety at Work act 1974 and the Construction Design and Management CDM regulations 2015 (CDM 2015) The Claimant did indicate to Mr Irving during this meeting that he considered that Mr Irving was not competent to be a designated individual and that without a designated individual the Respondent would be in breach of the relevant legislation. This is information which indicates that the Respondent is about to act in a way which is in breach of health and safety legislation. This amounts to a disclosure under section 43B. Case No: 3320594/2021 11

c. On 11.2.21, during a Microsoft Teams meeting with Mr Irving, disclosing that R1’s proposed Designated Individual was not competent to be appointed under BS 5975:2019, thus a breach of Health and Safety at Work Act 1974 and CDM 2015.

d. On 25.2.21, during a Microsoft Teams meeting with Mr Irving, repeating disclosures (i)- (iv) as set out at sub-paragraph (b)above,

e. On 17.3 dot 21 during a meeting with Mr Irving and Mr Chris Risen (R2) repeating disclosures (i)-(iv) as set out above at sub-paragraph (b) above.

f. On 6.4.21 during a Microsoft Teams meeting with Mr Irving, repeating disclosures (i)- (iv) as set out at sub-paragraph (b) above and also making the additional disclosure that the proposed project wide hoarding was proven to be unsuitable by calculation and posed a risk to individuals and the public if brought into use. The tribunal found that the Claimant made the same disclosures on each of these occasions including the disclosure about the hoarding on the 6th of April 2021. On each occasion the Claimant repeated the fact that his concerns amounted to a breach of health and safety legislation.

g. On 6.4.21 by e-mail to Mr Irving reiterating that Mr Irving did not meet the competence requirements as prescribed by the Temporary Works Forum and the Construction (Design and Management) Regulations 2015 and attaching a TWF information sheet and highlighting the relevant section. The Tribunal were satisfied that this too amounted to a protected disclosure under s.43B

h. On 8.4.21 by e-mail to Sean Kelly reiterating that Mister urban did not meet the competence requirements as set out in (i)- (iv) in sub- paragraph (b) above. The Tribunal were satisfied that this disclosure occurred and that Sean Kelly was a more senior member of management in the Respondent. This did amount to a protected disclosure within s.43B

i. On 8.4.21, by e-mail to Mr. Brown, that the failure of any engineering lead on the R1 contract was a direct contravention of the British Standard Code of Practise 2019 (for temporary works procedures and the permissible stress design of falsework) and further, that there was a failure to appoint a competent Designated Individual in both Rs organisations that this was in breach of the Construction (Design and Management) Regulations 2015. The Tribunal considered that this was the same disclosure he had made previously and was now making to a further member of the Respondent’s management. This too was a protected disclosure. Case No: 3320594/2021 12

j. On 15.4.21 during a Microsoft Teams meeting with Mr Irving, repeating the disclosure set out at sub- paragraph (b) above

k. On 20.4.21 by e-mail to Mr Irving reiterating the previous disclosures.

l. In his grievance dated 14.6.21. The Tribunal found that all of these were protected disclosure of the same nature as that in paragraph (b) above. Dismissal – s.103A ERA

[60]The Tribunal considered whether the Claimant was dismissed either for the reason or principal reason of his protected disclosures. In doing so, the Tribunal considered whether the Respondent’s stated reason of SOSR was a reasonable basis on which to dismiss.

[61]Ms Laing and Mr Atkins both referred to the fact that there was an SOSR process. This has not been shown to the Tribunal. It is therefore impossible for the Tribunal to know whether it was in fact followed by the Respondent.

[62]The clause of the contract between the Respondent and Cadent was provided in evidence. This included the fact that the request ‘must provide reasons and must be reasonably made’.

[63]The Tribunal concluded that in order to be a fair and reasonable process, the Respondent would have to be satisfied that the removal was a reasonable request on the basis of the reasons given, before proceeding to consider redeployment or dismissal.

[64]The evidence of Mr Atkins was that he did not consider this. He did not consider it to be within his remit. As dismissing officer Mr Atkins did not therefore consider whether the SOSR process was in fact suitable, but merely went through the motions of the process.

[65]The letter sent, in his name, between 16 June and 25 June indicates that the Respondent is satisfied that the removal is acceptable and that the SOSR process is invoked. Mr Atkins has shown no basis on which that decision could have been taken.

[66]The Tribunal took into account the fact that the Respondent sent a letter to Cadent on 2 June 2021 asking for its reasons. This letter did not include any of the points made by the Claimant in his response letter of 25 April 2021. Mr Haylett having told the Claimant that this would be used to inform the challenge, it was in fact totally ignored. The Tribunal also noted that it had taken 6 weeks from the request for removal for the Respondent to challenge it at all. There was no specific explanation for this delay by Ms Laing or Mr Brown, other than a holiday by Mr Brown at an unspecified time. Case No: 3320594/2021 13

[67]The Tribunal felt that the Respondent’s delay was contrary to Mr Brown’s view of the Claimant in the letter which said that he was an exemplary employee. The Tribunal concluded that if the Respondent truly felt that, it would have acted sooner and more vigorously to support the Claimant and used some of his points to defend his position.

[68]The letter on after 16 June to the Claimant also indicated that the process would take 3 weeks and could result in termination if appropriate alternative employment was not found. Mr Atkins could not have known at that time how long it would take to receive answers from Cadent, nor whether their reasons for rejecting the Claimant would be reasonable or not. The Tribunal were therefore satisfied that Mr Atkins had a pre-determined notion of dismissal.

[69]The response from Cadent did not contain any further detail, nor any justification for their request.

[70]The response written by Mr Brown to Candent on 19 July includes the line that “it may be difficult to defend if they do not have reasons”. The Respondent were therefore aware at this point, before dismissal, that they did not have justifiable reasons to dismiss the Claimant.

[71]No reply was received to that letter. The Respondent therefore had no justification for the removal of the Claimant from the contract and could not satisfy itself that Canden had acted reasonably in requesting removal.

[72]The Tribunal consider that the Respondent could not therefore have a reasonable belief that SOSR was a sufficient reason to dismiss the Claimant.

[73]The evidence of the Respondent to support SOSR was that the client asked for the removal of the Claimant. The evidence of Mr Bailey, an HR professional, was that the client was the controller of who was employed. This was an erroneous view and shows a misunderstanding of the Respondent’s position. As the adviser to the dismissal appeal, it was clear that this appeal could not rectify any previous error as the advisor was unaware of the correct legal position.

[74]A submission was made on behalf of the Respondent that they wanted to follow Cadent’s instruction for fear the contract being terminated. This was said only in passing by Mr Brown and the Tribunal did not accept his evidence as being of significant weight. The Tribunal took into account that the contract was only 3 weeks into a 5 year contract at the time of the removal. Both parties had carried out a lot of work to set up the contract and therefore it was unlikely the contract would in fact be at risk at such an early stage and due to a problem over one employee, for unclear reasons. The Tribunal also noted that the Respondent had produced no evidence to support this contention. Case No: 3320594/2021 14

[75]The Tribunal considered other possible reasons placed before it on the basis of the evidence; the Tribunal considered what other reason was in play, absent a legitimate reason having been established by the Respondent, taking into account the case of Kuzel.

[76]The Tribunal considered the fact that in the 3 weeks prior to his removal from the contract (ie from the start of the CMO contract on 1 April), the Claimant had made six protected disclosures to his employer. These included to his direct manager, and then to more senior managers of the Respondent (Mr Brown and Mr Kelly).

[77]The Tribunal were satisfied that there were no other reasons for the the Claimant’s dismissal put forward by the Respondent, and no evidence of any problems with his attendance, or work. Mr Brown referred to him as exemplary employee.

[78]The Tribunal were therefore satisfied that the reason why the Claimant was taken through the SOSR process and dismissed was due to his protected disclosures. His claim under s.103A ERA succeeds. s.98 Unfair Dismissal

[79]Having awarded automatic unfair dismissal, the Tribunal does not now need to consider s.98. However, given what we have said above, the Tribunal wanted to be clear that they found the Respondent’s procedure to be lacking. The Respondent’s inability to show the Tribunal the procedure which they say they used; The fact that they did not use any of the Claimant’s information to populate the challenge to Cadent; The challenge letters were not particularly committed in their defence of the Claimant; and the fact that the SOSR procedure was carried out without justification for the removal; would all point to a procedurally unfair dismissal. Detriments

[80]The Tribunal accepted the Claimant’s submission that the causation test for s.103A is higher than the causation test for detriments under s.47B and hence those detriments which also formed part of the SOSR process and dismissal are clearly made out.

[81]Where the Tribunal did not consider that these were related directly to the points considered under s.103A we considered them with the test of ‘on grounds of’ the protected disclosure; Issue 4a)

[82]This is about standing the Claimant down, which was a separate act to SOSR process, as it led to the implementation of SOSR process. Case No: 3320594/2021 15

[83]The Tribunal were shown no evidence to support the suggestion that the Respondent was in collusion with Cadent to bring about the request for removal. Whilst the Tribunal acknowledge that Cadent did not provide reasonable explanation for the removal, there Is not any evidence to support there being any collusion. This claim is dismissed. 67 The Tribunal considered that issues 4b),c), d), f) were all overlapping with the s.103A claim and no separate consideration was required. 68 In relation to issue 4e) Tribunal considered the original and amended lists of issues contained in the bundle and note that the connection between the disclosure and the removal request has been added in amendment. The Tribunal considered this to be an error in the drafting of the amended list of issues and did not reflect the case which was brought or defended. 69 The evidence from Cadent was not strong enough to warrant the removal of the Claimant from the contract, but the Tribunal found that the reason the Respondent went ahead and complied with the request anyway was because the Claimant had made protected disclosures. This allegation is therefore upheld Issue 4g) 70 Mr Clark knew that the Claimant had made protected disclosures as the Claimant had told him the details of this in his appeal. 71 Mr Clark therefore knew that there was an SOSR procedure due to the protected disclosures which the Claimant had made and thus did not consider his grievance independently or fairly. Despite the Respondent trying to keep these processes separate they were inherently interrelated and the Respondent’s attempts to separate them were a further attempt to thwart the Claimant’s complaints that he was being mistreated due to his protected disclosures. 72 The Tribunal found that these decisions made were on the ground of the protected disclosures in the sense that they were more than trivially connected. Issue 4h) 73 The Claimant’s grievance was lodged 14 June 2021. The outcome was given on 5 July 2021. The Claimant made an appeal on 8 July and the outcome was given on 17 August. The Tribunal do not consider that this was undue delay and therefore this allegation is dismissed. Remedy 2. Orders were made in a separate case management order, to provide for the preparation and listing of a remedy hearing. Case No: 3320594/2021 16 ___________________________ Employment Judge Cowen Date: 13 December 2024……. Judgment sent to the parties on 30/12/2024 N Gotecha For the Tribunal office Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/ Case Number: 3320594/2021 EMPLOYMENT TRIBUNALS Claimant: Mr A Estcourt Respondent: Morrison Energy Services Limited Heard at: Watford Tribunal On: 8 & 9 July 2025 Before: Employment Judge Cowen Mrs A Brosnan Mr A Scott Representation Claimant: Mr Findlay (counsel) Respondent: Mr Davis (in house counsel)

Introduction

[1]The Claimant successfully claimed automatically unfair dismissal (s.103A ERA) and detriment due to protected disclosure (s.47B ERA) (list of issues 4b, 4c, 4d, 4e, 4f, 4g,)

[2]A separate remedy hearing was listed. The parties provided an agreed bundle and the Claimant gave evidence to the Tribunal. Counsel for the Claimant identified at the outset of the hearing that the updated Schedule of Loss in the bundle had been miscalculated and was given time to correct this, before the hearing started.

[3]Both parties provided closing submissions, but the decision had to be reserved as there was insufficient time to provide the judgment to the parties during the listing period.

The Law

[4]The Claimant is expected to take reasonable steps to limit his losses and the Tribunal will only award compensation up to a date by which it could be expected that the Claimant would obtain employment at a similar rate of pay.

[5]The burden of proving a failure to mitigate is on the Respondent, who must show that the Claimant has acted unreasonably; Fyfe v Scientific Furnishing Limited

[1989] IRLR 331

[6]A bonus which would have been paid, had the Claimant remained in employment, will form part of the loss of earnings claim. The sums do not have to be contractually payable, as long as there is evidence of a reasonable expectation by the Claimant that the sum would be paid. This should be paid net of tax and subject to grossing up, if appropriate.

[7]Aggravated damages are awarded where there are aggravating features which have increased the impact of the detrimental act on the Claimant. They are considered compensatory and not punitive. Where the Tribunal considers that the Respondent has acted in a “high handed, malicious, insulting or oppressive” manner- Commissioner of Police for the Metropolis v Shaw

UKEAT/0125/11/ZT

, a further award can be made. The conduct can be at the time of the detriment, or thereafter.

[8]The Tribunal must be wary not to allow double recovery and must consider whether the overall award of damages is proportionate to the suffering which was cause.

[9]Interest on an award of injury to feelings is paid from the date of injury to the date of the award. On all other compensation it is paid from the mid way point between the date of the injury to the date of the award. The starting date for injury in this case was 10 September 2021 when the Claimant was dismissed. The award was made on 5 August 2025. This amounts to 1425 days. The mid point therefore is 712 days. The interest rated to be applied is 8% per annum.

[10]Grossing up occurs where the sum awarded is to be subject to tax. The calculation is carried out to ensure that the Claimant receives the amount he would have received had he not been treated unlawfully. The first £30,000 is tax free. Any sum received by way of injury to feelings is to be excluded, as this does not amount to lost income and the basic award is excluded, as it is calculated on a gross basis.

[11]The following decision includes the Tribunal’s findings of fact on the points relevant to remedy and takes into account both the evidence presented orally and physically to the Tribunal, as well as the submissions made by the representatives. Mitigation

[12]The Tribunal accepted the Claimant’s evidence that he had taken steps to widen his search for a new job, by looking in industries which were aligned to the utilities industry. The Tribunal accepted the Claimant’s evidence that his own experience was in an industry which was quite niche and that any employment was likely to involve contact with either Cadent, or the Respondent, as they managed and owned most of the relevant contracts in the UK. The Tribunal also accepted that the Respondent was unlikely to re-employ the Claimant, as he was considered to be a ‘bad leaver’.

[13]The Tribunal were not clear on the evidence provided whether the Claimant was in fact offered another job on 11 September 2021, but were satisfied that the Claimant was not obliged to take the first job offered to him, as it was reasonable for the Claimant to look for a job with a more comparable salary (at least at the start of his job search) and which was longer than a 12 month contract, which would leave him out of work at the end of the period. The Tribunal were satisfied that it was not a failure to mitigate to refuse this role.

[14]The Tribunal were equally satisfied that it was reasonable for the Claimant to take the job with HS2 via Morson, which he did accept in late September and started on 4 October 2021. The Claimant took a role in a new and diverse sector in order to widen his skills and enhance his CV, as he was aware this would be necessary for future employment. The role was the equivalent in terms of basic pay, but was on a 3 month rolling contract which could be terminated at any time. The Claimant therefore did not have financial stability in this role. The overall package was not the equivalent to that which he had received from the Respondent. There was therefore an ongoing loss.The figures set out in the Claimant’s updated schedule broken down in respect of each tax year 2022-2025 were accepted by the Tribunal as appropriate. Holiday Pay

[15]The Claimant’s claim for holiday was not pursued. Pension

[16]In respect of pension, the Claimant was entitled to payment into his pension of up to 7% from his employer. This had arisen in his his preTUPE transfer employment with Skanska. It was honoured by the Respondent in accordance with the letter dated 11 March 2021 which stated that “If you are in a group personal pension arrangement, that forms part of your contractual terms, the MES will continue to match what you are currently paying”. The Claimant’s unchallenged evidence was that he was paying 7%.

[17]The Claimant’s Skanska contract stated that “You may choose to contribute a minimum of 3% and a maximum of 7% of your basic salary, which the alliance will match”.

[18]The Tribunal were satisfied that this amounted to a contractual sum, which was subject to the TUPE transfer rules and which the Respondent had indicated they would honour. The payslip which was shown to the Tribunal reflected that agreement. The Tribunal therefore concluded that the Claimant was entitled to receive 7% contribution from the Respondent and that as a result of his dismissal, the Claimant lost this input to his pension.The figures shown in the Claimant’s updated schedule were therefore accepted by the Tribunal. Car Allowance

[19]Car allowance – this was conceded by the Respondent as being a contractual benefit which was lost upon dismissal and therefore was owed to the Claimant for the period of loss. The figures set out in the updated schedule included car allowance on an annual basis and were accepted by the Tribunal. Healthcare

[20]The Tribunal concluded that the Claimant was entitled to private healthcare when employed by Skanska as part of his contractual terms. Upon TUPE transfer he was entitled to comparable terms. The Claimant told the Tribunal that he had been quoted approximately £3000 per annum in premiums for a family cover policy. This amount was unchallenged in cross examination. The Tribunal accepted that this was a benefit which the Claimant was entitled to and which had been lost at the time of his dismissal. The figures set out in the updated schedule were therefore accepted by the Tribunal as appropriate. Bonus

[21]The Tribunal accepted the Claimant’s evidence that he had received a bonus every year since joining Skanska (except Covid year 2020 when none was paid). The Tribunal noted that in May 2018, prior to TUPE the Claimant was told he was enrolled in a bonus scheme and that this formed part of his terms and conditions. The Tribunal accepted the Claimant’s evidence that this happened each year and were therefore satisfied that it formed part of his terms and conditions and that the Respondent had agreed upon TUPE transfer to match that.

[22]The Tribunal accepted that on average the bonus payment had been 10.5% and that the maximum amount possible was 14%. The figures contained in the Claimant’s schedule were not challenged and were therefore accepted by the Tribunal as appropriate. Share award

[23]The Tribunal accepted that the Claimant was part of Skanska’s share ownership scheme. This was set out in his contract offer letter of 7 October 2011. At the time of the TUPE transfer the Respondent said that they did not operate such a scheme, but would provide an alternative on comparable terms. The Respondent provided no evidence of what such a scheme would look like, The Tribunal therefore accepted the Claimant’s evidence of the value of his annual share provision, as the Respondent ought to have provided something comparable. The figures in the Claimant’s updated schedule were therefore accepted by the Tribunal as appropriate.

[24]Duration The Tribunal accepted the Claimant’s evidence that he had gained knowledge and skill in another sector in order to move away from utilities. His 3 month contract was renewed over a period of 3 years and 9 months. The Tribunal accepted that this indicated that he was liked in his new role and was capable of the work. Had the employer not considered the Claimant to be capable or suitable, they would not have renewed the contract repeatedly.

[25]The Tribunal were only shown evidence of a limited number (8) job applications by the Claimant. He told the Tribunal that he did apply for more positions but didn’t keep records. The Tribunal were satisfied that whilst the Claimant was in a relatively secure position, his contract was reviewed every 3 months and therefore he took some steps to look for other work at regular intervals.

[26]The Tribunal considered that taking into account the Claimant’s history in the utility sector and his medical status (on the basis of consultation notes shown to the Tribunal), by April 2024 the Clamant had acquired 2.5 years experience in the tunnelling sector and was no longer visiting his GP in relation to his stated medical issues.

[27]The Tribunal considered that by April 2024 the Claimant would have been in a position to seek out and secure a job which was equivalent in remuneration and status to his position with the Respondent, albeit in a different sector.

[28]The Tribunal were satisfied that the Claimant’s updated schedule, presented at the Tribunal on day 1 and unchallenged in its calculations in cross examination, would be accepted up to the end of the tax year 2024. Therefore the Tribunal awarded £26,242,33 in loss of earnings. Professional fees

[29]The Claimant’s evidence was that his membership of professional organisations had been paid annually by Skanska and would therefore have been paid by the Respondent. This amounted to £520.09 per annum ( 2.5 x = 1,300.23) Life Assurance

[30]The Tribunal accepted the evidence that Skanska provided cover from first day of work at x3 annual salary. The Respondent had told the Claimant he would be enrolled into their Life assurance scheme. Thus when dismissed, the Claimant lost this cover. His evidence was that such a policy to pay out the same amount would cost £500 pa. The Respondent did not dispute this figure. This loss amounts to £1,250. Statutory Rights

[31]The Tribunal considered the appropriate award to be £500. Injury to Feelings

[32]The Tribunal considered that the GP records showed anxiety and depression from June 2021 when the Claimant was signed as unfit for work. The Tribunal had concluded that the Claimant had started raising his concerns in January 2021 and continued to do so through to June 2021. This period of illness covered 27 April 21 to 18 July 21. The Tribunal were aware that the Claimant did not take any further time off work after his dismissal and that he started a new employment on 4 October 21.

[33]The Tribunal accepted the Claimant’s evidence that as a result of his dismissal he felt humiliated and that it had changed how colleagues perceived him and that his reputation was damaged within the sector. He felt that he could not find alternative work within the utilities sector as a result of the connections and impact of the Respondent on the utilities sector.

[34]The Claimant’s evidence was that he became socially withdrawn, distracted and irritable with family and friends. The Claimant also spoke of being diagnosed in 2022 with hypertension. The Tribunal were unable on the basis of the medical evidence provided to be certain of the causation of that hypertension. However, the Tribunal accepted that the onset of the anxiety and depression was in line with his removal from the contract and dismissal.

[35]The Tribunal noted that the Claimant was not medicated for anxiety and depression as he did not wish to be reliant on medications (or experience their side effects). The Tribunal could see no further evidence related to these conditions in his medical evidence. However, the Claimant’s live evidence was that he continued to be effected by anxiety and that he addresses this via meditation, mindfulness and breathing exercises.

[36]The Tribunal took all the evidence into account and considered the Vento bands. They took into account fact that he was removed from his job, that the Respondent failed to support him in their challenge to Cadent’s request for removal and specifically had failed to use the Claimant’s letter to challenge Cadent over the reasons for the removal of the Claimant from the CMO contract. Furthermore, when Cadent failed to provide reasons for the removal, the managers were aware of this and said it would be “difficult to defend if they do not have reasons”. Yet, they knowingly went ahead with dismissal even where they knew they could not justify it.

[37]The Tribunal had concluded at the liability hearing that the Respondent’s argument that the client was the controller of who was employed was erroneous and showed a lack of professionalism by both management and HR advisers.

[38]The Respondent failed to find the Claimant other work away from the CMO contract, thus leading to the end of his 9 years of continuous service. They also considered that these actions by the Respondent were linked to the fact that the Claimant had to visit his GP as a result of his anxiety and depression and that his anxiety was ongoing at the time of the remedy

hearing.

[39]The Tribunal considered that these matters were sufficiently serious as to warrant consideration in the middle Vento band. They took into account that this claim arose as a result of the Claimant raising concerns about a matter of Health & Safety, and that his employment was terminated and his career diverted as a result. The Claimant’s life was disrupted for many months and it has taken him some years to gain expertise in a new area.

[40]The Tribunal therefore concluded that the appropriate award within this band was £ 25,000. Aggravated Damages

[41]The Tribunal considered whether beyond injury to feelings there was behaviour by the Respondent which was causative of a separate head of damage. The Tribunal considered that the actions of the managers and HR advisers led to the Claimant’s upset and humiliation, but that it did not fall within the high threshold of aggravated damages. ACAS Uplift

[42]The Tribunal noted that this uplift may be applied on the basis that there is an automatic unfair dismissal s.103A ERA. The Tribunal took into account that the Respondent’s witnesses at the liability hearing said that they applied an SOSR process , but this was never shown to the Claimant, nor to the Tribunal. The Tribunal acknowledged that the Claimant was invited to meetings, which did take place and was given opportunity to appeal the dismissal decision.

[43]Whilst the Tribunal found that the procedure was not applied fairly, there was a procedure followed, in which the Claimant was aware of the issues, was allowed to provide his views and was allowed to be accompanied and to appeal the outcome. The Tribunal therefore concluded that whilst they had not been shown the SOSR, the actions of the Respondent fell within the ACAS Code of Conduct on disciplinary procedure. No uplift was therefore applied. Deductions

[44]The Tribunal found that the Claimant received 10 weeks pay in lieu of notice amounting to £16,373.08 gross – less 39% tax/NI ( as calculated on payslip) Net PILON £ 9,987.58 Calculations

[45]Loss of earnings £11,053.44 £15,188.89 Basic Award £5,168 Professional fees £1,300.23 Life Assurance £1,250 Statutory rights £ 500 Injury to Feelings £25,000 Sub total £59,460.56 Less PILON £9987.58 Total £ 49,472.98 Interest on ITF £7,809 on losses £3,819.13 Sub total £61,101.11 Taxable amount £55,933.11 (i.e. less basic award) Tax free £30,000 Net taxable amount £25,933.11 Grossing up Assuming standard tax code 1257L a further £5,194 must be added to account for grossing up Gross taxable amount £31,127.11 TOTAL AWARD £66,295.11 Approved by: Employment Judge Cowen 5 August 2025

[1]The Claimant’s application for costs is successful.

[2]The Respondent shall pay the Claimant costs in the sum of £1,800

[1]Hearing The Hearing was listed for 1 day to consider the Claimant’s costs application. The application was initially made in writing on 4 July 2025, prior to the remedy hearing on 8 July 2025. However, the remedy hearing led to a reserved judgment and there was no time to hear the costs application.

[2]The Claimant renewed the application in writing on 18 August 2025. The hearing date was set and the Claimant supplied written representations, indicating that they did not wish to attend, in order to conserve costs. The Claimant also provided a schedule of costs and a bundle of documents in support of their application running to 35 pages.

[3]The Respondent did not respond in writing to the costs application, but chose to attend the hearing today. Mr Davis indicated that he did have a skeleton argument, but thought that as it was not ready to be served 7 days in advance of the hearing, he should wait to have the permission of the Tribunal to serve it. He had not sent it to the Claimant either (knowing that they would not be present today).

[4]The Tribunal allowed Mr Davis to send in his skeleton argument and copy it to the Claimant, as this was essentially a written copy of what he would otherwise say to the Tribunal and therefore would be heard by the Tribunal in any event.

[5]Mr Davis made short submissions which mirrored the content of his skeleton and also answered the Tribunal’s questions. Statutory Provision

[6]Rule 74 (2) Employment Tribunal Rules of Procedure 2024; “The Tribunal must consider making a costs order or a preparation time order 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 of it, or the way that the proceedings, or part of it, have been conducted.”

[7]Rule 75(2) “ the Tribunal must not make a costs order or preparation time order against a party unless that party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order)”

[8]The amount of a costs award may not exceed £20,000.

[9]The test in relation to costs is a three- stage approach: a . First, the Tribunal must consider whether a party’s conduct meets the statutory threshold under Rule 74(2)(a) (i.e. whether the party’s conduct was vexatious, abusive, disruptive or unreasonable); and b. Second, if so, the Tribunal must ask whether it is appropriate to exercise its discretion in favour of awarding costs: Robinson v Hall Gregory Recruitment Ltd

[2014] IRLR 761

at [15]. c. Third, and it is only when these stages are completed, the Tribunal considers the quantum and form of any award: Haydar v Pennine Acute NHS Trust [2017]

UKEAT/0141/17

at [25].

[10]The Tribunal has a wide discretion to make findings of unreasonable conduct. Every aspect of proceedings is covered, from the inception of the claim to judgment. This is a question of fact for the Tribunal having regard to “the nature, gravity and effect of the unreasonable conduct”: McPherson v BNP Paribas (London Branch)

[2004] ICR 1398

at [40].

[11]As a general principle, costs orders are the exception and not the rule: Barnsley Metropolitan Borough Council v Yerrakalva

[2012] IRLR 78

at §7. However, as per Yerrakalva at §41: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by [the party] in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects if had.”

[12]Costs are compensatory and not punitive: Lodwick v Southwark London Borough Council

[2004] IRLR 554

at [23]. Costs should be limited to those “reasonably and necessarily incurred”: Yerrakalva at [54]. First Stage

[13]The Tribunal first considered whether the Respondent’s behaviour met the threshold of unreasonable behaviour. The Claimant’s submissions gave two specific examples of when it was said that the Respondent had acted unreasonably;

[14]The first instance was in December 2024 when the parties had corresponded on a without prejudice basis in order to attempt to settle the claim. The Claimant made an offer on 5 December 2024, setting out the heads of claim, including “I year loss of employer’s contribution”. On 10 December 2024 the Respondent replied, asking for details of what constituted “ loss of employer's contribution”, saying “This head has not been pleaded or explained to our satisfaction” and “ Therefore whilst we remain open to explore the issue of negotiation further, we are unable to do so by [the deadline provided], or on the currently pleaded terms”.

[15]In response to this on 12 December, the Claimant’s solicitor provided a full breakdown of the figure, in a table.

[16]In response to this, the Respondent replied on 13 December ; “ whilst we appreciate your further clarification on the points below, and we remain open to sensible negotiation, we also remain currently unable to take instruction on your proposed offer as we do not concede that your assenions (sic) are correct - the evidence in several instances demonstrates that they are not, whilst in other instances, we lack sufficient basis to evaluate them”.

[17]The Respondent goes on; “Given the above and that we continue to await further information on several matters, you will appreciate that your extension of 24 hours is of no practical value whatsoever, and demonstrates nominal genuine willingness on your part, to negotiate, given a remedy hearing listed for over 3 months away.” There was no other detail which the Respondent required at this point.

[18]The Claimant immediately responded “ We are confused by your suggestion that you are unable to put the Claimant’s offer to the Respondent or take instructions from the Respondent on the Claimant’s off,er (sic)”.

[19]The Respondent appeared to ignore this and 3 days later made an offer of £15,000 which had no breakdown or explanation at all, in a very brief email. When the Claimant asked for a breakdown of the offer, the Respondent’s reply was that “ My client’s position is that your client suffered no financial losses”.

[20]In submission, when asked about the wording on 13 December email and refusing to take instructions, Mr Davis said that was not what he meant at all in the email and said that he apologised if he had appeared to do so.

[21]The Tribunal considered this exchange of correspondence in detail. They found that whilst it commenced in what would be a professional manner, the email of the Respondent on 13 December indicated to the Claimant that the Respondent’s representative was unwilling to take instruction on the settlement proposal. The Tribunal found this to be both inappropriate, as there was sufficient information to put to the relevant manager and also unreasonable from a professional point of view, in conducting litigation. The Tribunal were satisfied from the correspondence and the Schedule of Loss at that time, that the Respondent could have entered into meaningful negotiation, but chose instead to be obstructive to the litigation process.

[22]The second instance, was the failure by the Respondent to adhere to the case management orders requiring them to co-operate with the Claimant to exchange documents by 16 December 2024, agree the bundle by 10 January 2025 and to provide a copy of the bundle for the remedy hearing by 17 January 2025.

[23]The hearing listed on 27 March 2025 was vacated due to the unavailability of the Employment Judge. The parties therefore had to agree a bundle before the hearing in July 2025. Unfortunately the parties had been unable to do this together and the Claimant wrote to the Tribunal on 28 May 2025 applying for an unless order, to prompt the Respondent to create and serve the bundle. In the application they referred to the Respondent’s failure to reply to correspondence.

[24]The Respondent’s reply to this application was to request a postponement of the remedy hearing on the basis that they had made an application to the Employment Appeal Tribunal. This is not a reason to stay or postpone a remedy hearing in the Tribunal. The response was therefore to provide a warning to the Respondent that if they did not co-operate with the Claimant to produce the bundle, they may be debarred in the remedy

hearing.

[25]The Respondent’s response was that correspondence from the Tribunal had gone to the wrong email address. This did not address the lack of cooperation with the Claimant, nor did it justify the stay of the claim pending an appeal.

[26]The Tribunal concluded that the response and attitude taken by the Respondent, not to co-operate or actively engage in preparation until prompted by the Tribunal to do so, was not reasonable and professional behaviour in litigation. The Respondent’s correspondence with the Tribunal did not address directly the issue raised, and tried to change the subject in an effort to avoid the criticism of the Respondent. Experienced representatives in a case which has been postponed, should know that they will need to prepare in time for the next hearing and it is not reasonable to fail to cooperate to the point where an application to the Tribunal is required. The application to the EAT in no way removes the requirement to prepare for the remedy hearing in the Tribunal.

[27]In his submission Mr Davis indicated that it was excessive for the Claimant to be requesting 3 hours of preparation time for a bundle of 30 pages. This too is a mistake/disingenuous by the Respondent, as the relevant bundle was that for the remedy hearing, which was 298 pages long.

[28]The Tribunal also noted that Mr Davis had failed to provide his skeleton argument to the Claimant in advance of today’s hearing – knowing full well that the Claimant would not be attending the hearing. The Tribunal considered that the Respondent knew that it was possible for Mr Davis to have sent this in advance, but chose not to do so.

[29]The Tribunal also noted that the Respondent’s skeleton argument referred to awaiting “reconsideration”. However, the Tribunal noted that no application has been made to the Tribunal for reconsideration, although an appeal has been made to the Employment Appeal Tribunal. Once again the Respondent’s loose use of language has led to wrong facts being asserted.

[30]The Tribunal concluded that the behaviour of the Respondent on a number of occasions throughout the preparation for the remedy hearing had been unreasonable and would be worthy of an award of costs. Second stage

[31]The Tribunal then went on to consider whether it should use its discretion to make an award of costs.

[32]The Tribunal took into account the fact that even if the Respondent had behaved appropriately, it was not certain that a settlement would have been reached prior to the remedy hearing. The offers made by each party were far apart.

[33]The Tribunal also noted that the use of language by the Respondent was said by Mr Davis to be an error, but that could not have been understood by the Claimant as recipient and was not explained by Mr Davis, even when it was questioned by the Claimant. The Tribunal considered that the tone and temperament of the Respondent’s emails heightened the tension between the parties and errors led to the application for an unless order and the ending of any potentially useful negotiations.

[34]The impact of the Respondent’s tone and language and refusal to engage with the Claimant, who was trying to conduct the litigation appropriately, meant that additional time and cost was incurred as a result.

[35]The Tribunal considered that this behaviour by the Respondent had therefore led to additional expense and work by the Claimant’s solicitor and therefore were worthy of an order of costs, to compensate for the work which arose as a result of the position taken by the Respondent. Third stage

[36]The Claimant’s schedule of costs included the costs of both solicitor and counsel. The Tribunal were of the view that nothing in the application, or the decision of the Tribunal indicated that additional costs of counsel had been incurred as a result of the unreasonable conduct of the Respondent.

[37]In relation to the solicitor’s costs, the Tribunal considered in detail the Schedule provided by the Claimant; The Tribunal were satisfied that the actions of the Respondent between 13 – 17 December 2024 caused the Claimant to incur costs in relation to additional correspondence. The Tribunal therefore allow 72 mins in relation to this period.

[38]In relation to the requirement to apply for an unless order, the Tribunal considered that during Jan – Feb 25, only 1 hour of the 3 hours claimed was additional work which would not have been required in any event, for the Claimant to request the bundle. In the period of 15 February to 30 May 2025, the Tribunal were satisfied that this gave rise to additional work for the Claimant. This was an additional 168 minutes in total.

[39]The Respondent provided no evidence about the means of the company, or its ability to pay. The Tribunal noted that it took until January 2026 for the Respondent to pay the Claimant’s remedy compensation which was awarded on 8 August 2025. However, there is no indication that there is any financial difficulty which would prevent the Respondent from complying with a costs

[40]The Tribunal therefore concluded that it would be appropriate to award costs in the sum of 4 hours of additional work. A judgment for £1800 inclusive of VAT is therefore made. Approved by