Mr B Wytrzyszczewski v British Airways plc: 3331338/2018
EMPLOYMENT TRIBUNALS
Case No 3331338/2018
Between
Mr B WytrzyszczewskiClaimantBritish Airways Plc RECORD OF AN OPEN PRELIMINARYRespondent
Before
Employment Judge DanielsMiss M Tutin (instructed by Counsel) for respondentDate 30 March 2020
JUDGMENT
[1]The respondent’s application to strike out all of the claims on the basis of scandalous, unreasonable or vexatious conduct of the proceedings by the claimant is not well founded and is dismissed.[2]The respondent’s application for a deposit order is not well founded and is dismissed.
REASONS
[3]I shall start with reasons in respect of the strike out application.[4]The respondent submits that all the claimant’s claims should be struck out on the basis of scandalous, unreasonable or vexatious conduct of the proceedings by the claimant.[5]These allegations relate to the fact that the claimant operated a public internet blog site in respect of which he made various postings, partly in respect of or relating to these proceedings (see pages 208 to 379 of the Bundle).[6]Amongst other matters the claimant is said to have: 1 of 11a. Posted a copy of an allegedly “without prejudice save as to costs” letter from the respondent’s solicitors (237-238; 242) allegedly breaching without prejudiced privilege;b. Posted a copy of the respondent’s letter to the tribunal dated 18 October 2018 (239; 243-244) and the tribunal’s correspondence to the parties dated 4 December 2018 (322). Such documents are claimed by the respondent to be private and confidential between the parties and tribunal, and, they say, ought not to be used for any collateral purpose;c. Referred to the last preliminary hearing on 13 February 2019 as being public “so anyone can attend” (239) when the respondents aver that it was clearly a case management hearing conducted in private. That the claimant also indicated that he would publish a post giving details of what happened at the later (public) hearing.d. Stated that “the employment tribunal confirmed during my first hearing that recording the meetings (even without anyone knowing about it) is permissible and can be used as evidence in proceedings against British Airways” (see page 311 of the bundle).e. Repeatedly written, or copied communications, to senior management at the respondent (see pages 52; 98; 100; 114; 117), despite allegedly being told on 6 December 2018 and 5 April 2019 to direct all communications to the respondent’s solicitors and not to write directly to employees or managers at the respondent.[7]On 2 April 2019, the respondent drew this conduct to the claimant’s attention and asked him to remove immediately the blog postings. He was strongly encouraged to seek legal advice and the respondent indicated that it may seek a strike out order and/or costs order in light of the claimant’s conduct. While it was common ground that the claimant indicated he took this matter “seriously”, the respondent says he did not immediately comply with the respondent’s request to remove the blog posts.[8]It is alleged that the claimant then took deliberate and persistent steps to disregard the respondent’s lawful and reasonable request. Firstly, that he positively stated he would not remove the posts (see page 318) and said he would no longer indicate when his next post would be published in order to avoid detection (see page 352).[9]Secondly, it is alleged that the claimant chose to deny that he had done anything wrong (117-123), and posted the respondent’s letter dated 2 April 2019 and his response on his blog (see pages 318-327; 329-338).[10]He is alleged to have set out a clear and deliberate intention to continue posting about the tribunal proceedings by stating that “in the next post, I will tell you more about harassment at BA and how they like to deny it. It will be published in one week’s time”. This is alleged to amount to contumelious conduct by the claimant.[11]After the respondent set out its request for a strike out in its letter dated 17 April 2019 (125-127), the claimant then withdrew the posts on his blog which post-dated April 2018. 2 of 11[12]The respondent first intimated they were considering an application to strike out in their letter dated 2 April 2019. The claimant stated that he was opposing any such application on 17 April 2019. The respondent wrote with a formal application on 17 April 2019. Relevant legal provisions[13]A claim may be struck out at any stage of the proceedings if:a. The claim has no reasonable prospect of success pursuant to Rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013 (“ET Rules”):b. The manner in which the proceedings have been conducted by or on behalf of a party has been “scandalous, unreasonable or vexatious”, pursuant to Rule 37(1)(b) of the ET Rules.[14]It has been held that there are two conditions for the exercise of power under Rule 37(1)(b), namely that the unreasonable conduct has taken the form of a deliberate and persistent disregard of required procedural steps, or it has made a fair trial impossible: see Blockbuster Entertainment Ltd v James [2006] EWCA Civ 684. [2006] IRLR 630, at [5] per Sedley LJ.[15]The starting point for the tribunal is then the test found in Bolch v Chipman [2004] IRLR 140 in which the Employment Appeal Tribunal set out the correct legal test that should be applied when considering the question of whether or not a party’s case should be struck out because their conduct has been vexatious and or scandalous.[16]At paragraph 55 and onwards the EAT sets out that the test should be:(1) There must be a conclusion by the tribunal not simply that a party has behaved unreasonably but that the proceedings have been conducted by or on his behalf unreasonably.(2) Assuming that there is a finding that the proceedings have been conducted scandalously, unreasonably or vexatiously, that is not the final question so far as leading on to an order that the notice of appearance must be struck out.[17]The EAT went on to refer to De Keyser Ltd v Wilson [2001] IRLR 324 at paragraph 25 in which Mr Justice Lindsey had set out what is required before there can be a strike out of a notice of appearance or indeed of an originating application, is a conclusion as to whether a fair trial is or is not still possible.[18]That situation can be contrasted with the one dealt with in the EAT in Chidzoy v BBC UKEAT/0097/17/BA in which the claimant had ignored the instructions of the tribunal not to talk to anyone about their evidence in the break period while giving evidence at the final hearing. On this occasion the EAT upheld the Employment Tribunal’s judgement that their trust in the claimant had broken down. 3 of 11[19]From the Chidzoy case it is clear that the test from Chipman is the correct test when considering an application under rule 37, and that the fundamental question the tribunal should be asking itself is whether a fair trial is possible or not.[20]Where these conditions are fulfilled, it is necessary for a tribunal to go on to consider whether striking out is a proportionate response to the misconduct in question. Without prejudice communications[21]In order to consider this issue, the tribunal must address the test in Bradford and Bingley Plc v Rashid [2006] 4 All ER 705 in which the House of Lords addressed the question of what constitutes a communication that is ‘without prejudice’. At paragraphs 71-75 of the judgement their Lordships make it clear that a without prejudice communication must be one in which there is a genuine attempt being made to compromise a dispute.[22]I also reminded myself of the key authorities on unambiguous impropriety. The respondent’s submissions on strike out[23]The respondent’s position on the strike out was in summary as follows:a. All of the claimant’s claims should be struck out on the basis of scandalous, unreasonable or vexatious conduct of the proceedings by the claimant, including allegedly posting confidential and/or privileged communications by or with the respondent and tribunal on a public forum. Alternatively, it was argued that a costs order should be made.b. The claim for detriment on grounds of making protected disclosure/s was brought out of time and limitation should not be extended, as it was reasonably practicable for the claim to be brought in time and it was not brought within a further reasonable period of time. The claims of direct sex discrimination and harassment related to sex and/or of a sexual nature should also be struck out on the basis that they are out of time and it would not be just and equitable to extend time. The claimant’s submissions[24]The claimant relied, amongst other things, on his article 10 rights of freedom of expression in relation to what he has published on his blog. The vast majority of the material on the claimant’s blog is, he says, entirely innocuous and unexceptional. The claimant says he has every right to say what he likes about his experiences working for the respondent, subject only to the caveat that of course what he says must be true and not defamatory and/or an abuse of process. If the respondent seeks the claim that what has been said by the claimant is defamatory then he says that their potential remedy lies in a defamation claim in the High Court. The claimant says he has taken care to redact identifying information from most of the documents online and in this way, he has behaved responsibly.[25]The claimant also submitted that there had been no breach of tribunal orders and striking out would be a disproportionate and draconian step. This was partly as it 4 of 11 could not be possibly said that fair trial could not now take place. He also argued that there were respectable arguments as to why all of the claims were in time. Was the letter of 2 April 2019 without prejudice?[26]It was agreed that this part of the hearing was dealt with in private for public policy reasons relating to without prejudice privilege. I found that it was a genuinely without prejudice communication and the case on unambiguous impropriety was not made out. In this case, it was clear to me that the letter was covered by without prejudice privilege. Reasons were given at the hearing, in private.[27]The parties agreed that those reasons should remain private, and/or I determined this was a necessary approach, not least as the reasons might otherwise publicly disclose details of the letter which was the whole purpose of this application. What was the nature of the claimant’s conduct?[28]I shall deal with each issue in turn. The first allegation is that the claimant a. Posted a copy of an allegedly “without prejudice save as to costs” letter from the respondent’s solicitors (237-238; 242) allegedly breaching without prejudice privilege;[29]In this respect, I could not see that the claimant had disobeyed any order of the tribunal, as there had been no order made in respect of these issues and no unless order sought either. There had simply been an order for mutual exchange of documents.[30]At the time the claimant posted the without prejudice documents on his blog online he was a litigant in person and had had no access to independent legal advice about what was legal, or the way in which documents may or may not be used. There was no basis to suggest that his action was deliberate and intentionally improper. Without prejudice privilege is a complicated area of law and the proper ambit of this rule is not a point that a member of the public would necessarily appreciate, at least without advice.[31]I find that the claimant did not know he was potentially not allowed to refer to the content of such letters in public. So far as he may have used the without prejudice letter incorrectly or improperly, he did so inadvertently.[32]Furthermore, following a request from the respondents he promptly took down the material down off the website promptly. So far as there was any breach of any duty, this was plainly not repeated and was quickly addressed.[33]In addition, the letter from the respondent’s solicitors dated 2 April 2019 in some respects potentially overstated the position, in law, by suggesting that the claimant could not make any postings about the case and he should “remove all blog postings” (not just those which referenced without prejudice matters etc) and “you should further desist from making any additional postings” which was a potentially unreasonable attempt by the respondent to shut the claimant down and fetter his ability to speak about the case at all. The respondent’s solicitors appeared to be seeking to suggest that the claimant was not entitled to speak about the case at all. That was unfortunate. This is important context to the proper assessment of 5 of 11 the respondent’s contention that the claimant had engaged in some form of serious or significant unreasonable conduct.[34]I do not find any unreasonable conduct of any significance here and/or I do not find that the proceedings had been conducted unreasonably in this respect. This was a minor issue, that was quickly addressed and there is, in my view, no basis whatsoever for finding that strike out would be proportionate or that a fair trial could not now be held. The respondent’s determined submissions on these issues did not get anywhere near, in my view, to the relatively high level of unreasonable conduct and prejudice required by the case law to potentially justify strike out of all claims.[35]The second issue is whether the claimant “Referred to the last preliminary hearing on 13 February 2019 as being public “so anyone can attend” (239) when the respondents aver that it was clearly a case management hearing conducted in private. That the claimant also indicated that he would publish a post giving details of what happened at the later (public) hearing.[36]I am unable to find any breach of any tribunal order, on the facts, and in so far as there was an error this was plainly not repeated and was quickly addressed. In fact, the PH had originally been listed as a public hearing and only got turned back into a private one on the day as the jurisdictional issue was parked. There is no evidence that this was made explicit to the claimant or that he appreciated the difference or the change.[37]At the time the claimant was still a litigant in person and had had no access to independent legal advice about when a hearing would be treated as being in public or not. There was no basis to suggest that his comment was made deliberately and intentionally in conflict with what he knew to be the true position. The circumstances in which a hearing is public varies and is not a well known area of law. The fact a hearing could be listed a public and then be quickly converted into a private session is not a point that a member of the public would necessarily appreciate, at least without advice.[38]I find as a matter of fact that the claimant did not know the hearing had become a private one. So far as he may have described the position incorrectly or improperly, he did so inadvertently.[39]I find no unreasonable conduct and/or do not find that the proceedings had been conducted unreasonably in this respect. If I am wrong on this, this was a very minor issue, that was quickly addressed and there is no basis whatsoever for finding that strike out would be proportionate or that a fair trial could not now be held. The respondent’s case got nowhere near the relatively high hurdle for strike out required by the case law.[40]The next issue is that the claimant allegedly stated that “the employment tribunal confirmed during my first hearing that recording the meetings (even without anyone knowing about it) is permissible and can be used as evidence in proceedings against British Airways” (see page 311 of the bundle)”.[41]Again, at that time the claimant was still a litigant in person and had had no access to independent legal advice about when recordings of meetings were and were not inadmissible. There was no reasonable basis to suggest that his comment was 6 of 11 made deliberately and intentionally in conflict with what he knew. The circumstances in which recordings of meetings may be held admissible is a complex area of law, albeit the presumption is that relevant evidence is often held admissible, even if it was obtained in inappropriate or potentially inappropriate ways. The Employment Judge explained the position as to the possibility of these documents being admissible and I find that the words he apparently used were capable of a number of different interpretations or emphasis. The claimant did not know that he was possibly overstating the legal position as to admissibility of recordings, albeit in a very minor way, by saying such recordings are admissible rather than that they may be. So far as he may have described the position incorrectly or improperly, he again did so inadvertently.[42]I find no unreasonable conduct here and/or do not find that the proceedings had been conducted unreasonably in this respect. If I am wrong on this, this was a very small issue and there is no basis whatsoever for finding that strike out would be proportionate or that a fair trial could not now be held as a result. The respondent’s case here got nowhere near, in my view, to the relatively high hurdle required to justify strike out under the above case law.[43]The claimant is then said to have: “Repeatedly written, or copied communications, to senior management at the respondent (see pages 52; 98; 100; 114; 117), despite allegedly being told on 6 December 2018 and 5 April 2019 to direct all communications to the respondent’s solicitors and not to write directly to employees or managers at the respondent”.[44]I again find no unreasonable conduct in this respect and/or do not find that the proceedings had been conducted unreasonably in this respect. It is not unusual for a person who is concerned about apparently serious and ongoing safety and other issues to copy in senior management to letters. There also appeared to be potentially sound reasons why he did so, in view of the apparently disinterested management response to his safety disclosures. If those copied in did not wish to or intend to read them, they could of course simply do so. This was a very minor issue, that was quickly addressed and there is no basis whatsoever for finding that strike out would be proportionate or that a fair trial could not now be held. The respondent’s case again got nowhere near the relatively high hurdle to strike out required by the case law.[45]It is important that the tribunal does not lose sight of proportionality when it is making its decision in reaction to the respondent’s application. In Blockbuster Entertainment Ltd v James [2006] IRLR 630 at paragraphs 20 and 21, the Court of Appeal which decided that lack of true attention by an employment tribunal to this principle meant that its decision to strike out a claim because of noncompliance without tribunal orders should be quashed.[46]As the Court of Appeal said in paragraph 21 “It is not only by reason of the convention right to a fair hearing vouchsafed by Article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings [1992] 1 WLR 1196 at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structed examination. The particular question in such as case as the present is whether there is a less drastic means to the end for which the strike out power exists. The answer has to take into account the fact, if it is a fact, that the tribunal 7 of 11 is ready to try the claims, or as the case may be, that there is still time in which orderly preparation can be made…. Proportionality in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the interests of justice, upon their consequences.”[47]In this case, I found no unreasonable conduct and/or no such conduct of any significance. There was no intentional breach of any order. There was no deliberate attempt to mislead anyone. The respondent had not applied for an unless order at any stage either, which was the usual first approach, before a strike out application.[48]There was no unreasonable conduct of any import or significance and/or I do not find that the proceedings had been conducted unreasonably in this respect.[49]So far as the claimant may have slightly overstepped the mark on what he could and could not do, this was a very minor issue, that was quickly addressed.[50]There is no sound basis whatsoever for finding that strike out of the claims would be proportionate or that a fair trial could not now be held.[51]I also saw no existing basis for granting any unless order at this stage (nor was one sought). Reasons regarding application for deposit order[52]The respondent applied for a deposit order that the claims for automatically unfair dismissal of the claimant had little reasonable prospect of success. The application was dismissed.[53]The reasons for dismissing the application were in summary as follows based on a provisional view of some of the apparent facts.
Relevant law
[54]At a preliminary hearing, if an employment judge considers that any specific allegation or argument in a claim or response has “little reasonable prospect of success”, they can make an order requiring the party to pay a deposit to the tribunal, as a condition of being permitted to continue to advance that allegation or argument (Rule 39 (1) of the Employment Tribunals Rules of Procedure 2013 (ET rules)).[55]The test is not as rigorous as the “no reasonable prospect of success” test in rule 37 (1) a under which the tribunal can strike out a party’s case. This was confirmed by Mr Justice Elias in Van Rensburg v Royal Borough of Kingston-Upon- Thames and others UK EAT/0096/07; UKEAT/0095/07 (decided under the predecessor to the 2013 ET rules), who concluded it followed that “a tribunal has a greater leeway when considering whether or not to order a deposit” than when deciding whether or not to strike out and it was not wrong for a tribunal to make a provisional assessment of the credibility of a party’s case when deciding whether to make a deposit order.
Conclusions
[56]The reasons for not granting a deposit were as follows. 8 of 11[57]First, the respondent admitted in the response that the claimant had made a number of disclosures capable of being qualifying disclosures in the ET3, notably the disclosures at PD 1 and PD 5 (see para 34 amended GOR).[58]Second, those disclosures were of a nature and character which raised potentially significant issues. There appeared to be a basis for a number of concerns arising about safety matters within the respondent and there was information to suggest the claimant may be able to show he had a genuine belief that the guidance/practices in the workplace were not perhaps as robust as he had expected. The claimant appeared to have an arguable case that he had disclosed information tending to show a likely breach of a legal obligation or the requisite health and safety concerns under s43 B ERA 1996. The alleged concerns disclosed included perceived issues regarding the degree of unfettered access to emergency doors on a plane; the level of seniority of staff deployed on planes (at one stage it is alleged that all cabin staff were relatively new and on probation), the practices regarding serving of hot drinks, the practices regarding dimming of cabin lights during boarding or in the back galley during take off or landing. The claimant alleges that he was told he was “not the moral compass for the company” and should “mind his own business” in a meeting with occupational health on 5 March 2018, which, if he establishes such comments or similar comments were made, might suggest his safety disclosures were not entirely appreciated by everyone within the business or that his disclosures had been a wider topic of discussion amongst staff.[59]Third, it appeared that the main events related to and/or flowed from the fact that the claimant had his probation period extended. There was potentially cogent evidence that just before this extension the claimant had been informed there had been no issues identified with his performance and he was allegedly informed by a supervisor that “if you don’t run naked in terminal 5 before 24 January everything would be fine” There was no cogent explanation before me as to why there was such a change of heart within the respondent regarding the claimant’s future employment, allegedly just days after. The contention raised by the respondent was that the position all changed quickly simply because the claimant had, it was felt, potentially breached health and safety duties in respect of the seating of a child. From what I could glean, and on a provisional basis only, this appeared to be a potentially weak and curious explanation, in circumstances where the facts did not appear to cogently support the charges against him or the supposed seriousness of this issue. The claimant alleged that the mother of the child had apparently been informed to act in the way she had regarding by ground staff. This explanation was, it seems, rejected without any cogent explanation I could see. If it is the case that ground staff considered this to be the right course of action, it was not clear to me why the claimant had been considered to have made a serious error by acting as directed. There was also potential evidence that Mr Anderson had considered the issue a ground staff fault not one by the claimant. Further, it is contended by the claimant that a number of other staff had no knowledge of the supposed policy that he had “seriously” breached. The claimant made his concerns immediately known about this issue and “the doubtful reason” for extending probation. This allegation against the claimant did not appear to have much apparent force, at least from what I could see from my provisional review.[60]Fourth, the timing of his protected disclosures was shortly before the alleged retaliation and detrimental treatment. It was conceivable that there was a link in 9 of 11 view of the close time link between the comment confirming he was almost sure to pass probation and then the sudden move against him, at a time where he had been making further disclosures about safety. There was thus some potential evidence to support causation arguments.[61]Fifth, there was a rather troubling email sent by the Chief Executive of BA on11 March 2018, which stated as follows (in relation to an email from the claimant where, in essence, he had reiterated that his safety/working time and nationality concerns had not been properly dealt with in his view): “of course the real question is what it is that we need to do in our screening process in order to detect people of this profile”[62]The email that this email replied to set out a profile of a person who was concerned about alleged nationality related comments and health and safety compliance/other workplace issues. I could identify nothing in the claimant’s email which could give a plausible reason for the CEO making such an apparently negative and sweeping comment about the claimant based on “his profile”. Further, such comments could support the drawing of an inference by the Tribunal that senior management of the respondent had a negative approach to whistleblowers and/or to people of “his profile”. The email appeared to suggest that persons of “this profile” should not pass the recruitment stage alone, let alone be retained following a probation period. I find it hard to see a cogent and neutral explanation for this comment. Only a few days later, the claimant resigned, claiming constructive dismissal. It is the case that the claimant was not aware of this email but it could have a probative effect in his case, depending on what it really meant and who saw the CEO’s email and/or was aware of his email and/or made aware of the CEO’s approach to matters of such a nature and why he took such apparently strident issue with the claimant’s “profile” (and the related email).[63]As regards time issues, there is a preliminary issue as to whether the protected disclosure claim is in time. It will be necessary to identify when the last act complained of is and whether there was an act of extending over time to include the claimant’s dismissal and/or detriment running to the last day of employment. This issue is quite fact sensitive and I did not feel it was possible to determine this on a preliminary basis.[64]If there was an act of extending over time to include the claimant’s dismissal and/or detriment running to the last day of employment the protected disclosure claim would appear to be in time. If the claim fell outside the ordinary time limit in which it was reasonably practicable to claim, the Tribunal would need to determine whether the claim presented within such further period as the tribunal considers reasonable (s 48 (3) (b) ERA 1996).[65]I noted carefully the cases relied upon by the respondent (and the key quotes relied on in the helpful submissions) of Palmer and Sanders 1984 ICR 372 and Wall’s Meat Co Ltd and Khan 1978 IRLR 44 as well as Cullinane UKEAT/0527/10 and Beasley UKEAT/0626/06/DM.[66]The claimant’s representative said he developed chronic anxiety as a result, he says, of the alleged treatment in this matter. I did not have the medical evidence in front of me but this appeared to present a potentially exceptional reason for any delay in filing his claim. See the Court of Appeal in Schultz v Esso ICR 1202 CA 10 of 11 and the EAT in Williams EAT 0291/12 and Imperial Tobacco v Wright EAT 0919/04.[67]He also appeared to have a potentially genuine reason for being ignorant as to the time limits as the government guidance he relied upon was capable of being read in a number of ways. The guidance suggested that cases involving dismissal have a 3 month time limit from the last day and other cases have a time limit 3 months from the act complained of. It appeared to me that the claimant genuinely and not unreasonably believed that as his case involved dismissal this meant the 3 months from dismissal rule applied, not the other rule. It appeared the claimant was genuinely not aware that a detriment claim where there was a dismissal and a dismissal claim might each have different time limits. The explanation given by the claimant for this ignorance with regard to the extract from the government website he read, seemed potentially reasonable and credible. On top of the apparent anxiety condition, it appeared to me that this further potentially justified the claimant’s approach. See Wall’s Meat Co Ltd and Khan 1978 IRLR 44. I was not satisfied the time limit argument regarding the protected disclosure claims (both relating to detriment and dismissal) had little reasonable prospect of success[68]In all these circumstances, I was not satisfied the protected disclosure claims (both relating to detriment and dismissal) had little reasonable prospect of success. The respondent’s application was therefore dismissed.
The claim
[69]Among other things, the claimant asserted that the document at pages 1014- 1018 had not been sent by Ms Hale. She was cross-examined on it. She said that it was an email and that she was sure that she had sent it, and that she had enclosed with it a (digital) bundle of documents, as she referred to that bundle in the body of the document. The top of the document had been cut off, and the attachment had not been located by the respondent in preparation for the hearing. That was, we were told, because Ms Hale had been required by the respondent’s data protection policy to send the email and its attachment to a central digital storage facility, administered by the respondent’s HR team. As Employment Judge Hyams said during the hearing, that was in our view highly unlikely to be required by the GDPR, and in any event it was likely to hinder an employer’s response to a claim such as this one, for which there could in our view be no justification. Having said that, we accepted Ms Hale’s evidence that she had sent, as an email to Ms Butler, the document at pages 1014-1018 (not truncated), enclosing the attachment to which it referred. We also accepted Ms Hale’s evidence that the content of the email was entirely genuine. It clearly took a lot of time to put it together. It started with these paragraphs: “Over my time of having Bartek in my team there have been several issues, I have tried to work with Bartek over the last eight months, however when trying to provide Bartek with assistance I have been faced with challenges from him. Bartek does not respond well to managers who do not agree with everything he is saying or suggest different ways for him to work, progress and develop. He will manipulate situations to reflect the outcome of his choice. Despite Bartek being told verbally and in written communication from his OLM and IBM not to do something, Bartek ignores this and chooses to continue to do what he wants. I feel British Airways have a duty of care not only to its external customers but also internal customers, colleagues and aircraft. I have concerns about Bartek and his ability perform the safety aspects of the role of cabin crew, his customer service levels, his disregard for policies and procedures which he feels do not benefit him and lack of respect for management. Bartek does not respond well to situations which are not in his favour or control.”[70]We read with care all of the other documents to which Ms Hale referred in paragraphs 48-53 of her witness statement and they all bore out what Ms Hale said in those paragraphs. What was not apparent until we asked a question about it of Ms Hale was that the email from Ms Gates at pages 889-892 was unsolicited: it was not sent by Ms Gates in response to a request from Ms Hale for feedback but was instead sent because Ms Gates was highly concerned about what had happened on the flights to and from Las Vegas to which she referred in the email. Given the fact that the documents to which Ms Hale referred in those paragraphs bore out what she said in them, and given that we found her evidence on this (as it was, we found, on all other aspects of the case) to have been given honestly, carefully and with a strong desire to tell the truth, we accepted Ms Hale’s factual evidence in paragraphs 48-53 of her witness statement. The final parts of paragraphs 48, 52 and 53 were comments, which we disregarded, except to the extent that Ms Hale was proving the documents to which she referred. To the extent that some of what Ms Hale said in paragraphs 48-51 was about what she was told by Ms Butler, we accepted it as a genuine recollection of what Ms Hale was told by Ms Butler at the time. The comments made about the claimant’s European origins, the manner in which Ms Butler acted towards the claimant during the meeting of 5 March 2018 and the other things said at that meeting[71]Ms Butler’s meeting with the claimant of 5 March 2018 was, as Ms Hale said in paragraph 53 of her witness statement, minuted. It was minuted by Mr Van Gelderen (pages 937-939). As we say above, he gave oral evidence to us. The claimant’s evidence in paragraph 102 of his witness statement was that Ms Butler had said at the end of the meeting: “I appreciate your European heritage but this is British Airways” and that he had “at no point ... mentioned [his] national origins to anyone.”[72]The claimant continued: “At this point, I wish to elaborate on two things. The first is the question of minutes from the meetings. No minutes from any meeting had been shared with me at all (despite my requests) until the disclosure in May 2019. When they were shared, some of the content was quite inaccurate. Furthermore, Ms Butler’s above comment was not included in the minutes. It is true that her other comment about my Eastern European directness and that I should be mindful of that when interacting with customers had been included. However, that comment was made in the middle of the meeting; it was just a completely different comment. As a side-note, I wish to highlight that the comment about the Eastern European directness was quite odd as well, because there had never been any customer complaints about me either [78 Grounds of Resistance, Paragraph 27]. Contrary, the IFAs showed that I was able to welcome customers in a British way [112]. However, the comment that I was really offended with (that was made right at the end of the meeting) was not included in the minutes at all.”[73]There was in the minutes, at page 937, this passage: “SB [i.e. Ms Butler]: I know that within your Eastern European culture there can be some directness in how you communicate (SB quoting the exact words as written down by CSM in the feedback BW received) so you may want to be a bit more aware of this. DJ [i.e. Mr Van Gelderen]: Explaining to BW that I am Dutch myself and can be direct in my approach. Gave ideas and suggestions to BW on what has helped me and on how to balance and adjust my approach when working with people from the BA and many other cultures to make working together smooth.”[74]Mr Van Gelderen’s oral evidence on whether or not Ms Butler said “I appreciate your European heritage but this is British Airways” was clear, firm and insistent. It was that she had not said that, and that she had simply referred to, and read out, the words used by Mr Puig in the email at page 621. Those words were, we noted, not about the claimant’s interactions with the public, but with his colleagues. What Mr Puig had written there, was this: “He can come across a bit direct when talking to his colleagues however this is part of his European culture and he is working in coming across more polite.”[75]That comment was in line with what Ms Gates had written (in her email at pages 889-892) about something the claimant had done during the flights to and from Las Vegas. What Ms Gates said in that regard was this (it was at the bottom of page 890): ‘From the time that Bartek done the duty free for the customer breaks had then just started and Bartek had not had any dinner at this time. Bartek then said this to the galley lead in WT and she replied with “if someone wants to swap breaks then that’s fine but I have a 3 hour drive so staying on 2nd break”. Bartek then went to ask the other 2 crew if they would swap breaks with him. The other 2 crew also said no they wanted to keep there own break. Once I spoke with the crew about the whole situation they said that Bartek was very aggressive and confrontational about this. They said he stood over them quite aggressively and said “swap breaks as this is unfair” and said this quite a few times to them, making them feel very uncomfortable.’[76]We concluded that the claimant (who had not recorded the meeting of 5 March 2018) had mis-remembered what had been said, and had convinced himself that Ms Butler had said the words of which he complained. We did so not only because we found Mr Van Gelderen to be an honest witness, doing his best to tell the truth, but also because we saw from our own exchange with the claimant described in paragraph 30 above that the claimant was capable of self-deception. We accepted that the only thing that Ms Butler had said to the claimant in her meeting with him of 5 March 2018 about his national origins stemmed from, or was, what Mr Puig had written in his email at page 621. Thus, we concluded on the balance of probabilities that Ms Butler had paraphrased what Mr Puig had written before then reading it out, but that that was all that had happened by way of a reference by her to the claimant’s nationality.[77]In addition, we saw from Mr Van Gelderen’s notes at pages 937-939 that the claimant had started the meeting by being positive about his experience of BAHS. The notes started: “SB: How are you? I know the last week has been difficult but we are following guidelines and how was your BAHS appointment? BW: I [sic] went well, it was productive.”[78]Further, we could see from the passage in the middle of the same page (937) that Ms Butler had read back the feedback of Mr Puig in his email at page 621 relating to a failure by the claimant to give an extension seatbelt to a mother whose child was on her lap. Mr Puig’s email had been sent on 20 January 2018. We could see nothing wrong with Ms Butler raising that safety issue at that time. Indeed, it was clearly intended to be helpful to the claimant, to enable him to avoid making that mistake in the future, so that he would have a better chance of completing his probation period. The manner in which the claimant responded to Ms Pilgrim’s communications and her email to him of 24 March 2018[79]The claimant sent the email dated 11 March 2018 at pages 957-959 to Ms Butler. It was treated by the respondent as a grievance. Ms Pilgrim was appointed to consider the content of the email on the basis that it was so treated. On 14 March 2018, she emailed the claimant, inviting him to a face-to-face meeting with her, to discuss his concerns. Ms Pilgrim described what happened next in paragraphs 5-8 of her witness statement, which were in these terms: ‘5. The Claimant replied on the same day to say that he would normally be happy to meet me, but that none of his issues raised in a further email he had sent to Karen Slinger had been dealt with and that he would like to know the answers to his points raised (he attached a copy of the email to Karen at the bottom of this email to me- see page 971). He said that he would be happy to have a conversation with me about that email trail, but would prefer a telephone conversation. 6. On 16 March 2018, I replied to say that, based on the content of his original email (at page 960) I felt a face to face meeting would be more appropriate. I said that I would contact the scheduling team to add a UKM day in his roster which is a rostered ground duty day so that we could meet and discuss the points in his email to Karen. 7. The Claimant replied the same day to say that this was fine and gave a deadline by which he expected to receive answers to his questions about interim steps, by 26 March 2018 (top of page 970). 8. The interim steps the Claimant was seeking were outlined in his email to Karen Slinger and included a written apology from Stephanie Butler to “acknowledge her wrongdoing’‘, succinct answers to all of his questions and paid leave from April onwards until his queries were dealt with. He said that a break of paid leave would enable the company to thoroughly investigate his concerns (bottom of 972/ top of 973). He also referred to needing to submit his resignation on 26 March 2018. I did not understand why he was referring to resigning when we were trying to arrange a meeting to discuss the issues he had raised and, as far as I was concerned, I was hopeful that we could resolve these issues in some way.’[80]There was then further correspondence in the same vein. Among other things, Ms Pilgrim said (in her email sent at 17:10 on 21 March 2018 at page 968) that it would be appropriate to meet face-to-face before she made a decision “as to whether or not to hear [the claimant’s] complaint as a grievance”. She also indicated (without saying it in clear terms) in that email that the claimant should, if he wanted paid leave, book it in the usual way, i.e. and take it from his annual holiday entitlement. Ms Pilgrim described the events which followed that email in paragraphs 14-19 of her witness statement. After those events, she sent the email of 24 March 2018 which the claimant claimed was both a detriment for whistleblowing and the final straw which led to his resignation. Those paragraphs were in these terms: ‘14. Later on 21 March 2018 at 22.19 I was copied in to an email from the Claimant to Paul McGowan (see page 986) [Mr McGowan was Ms Hale’s intended replacement as the claimant’s OLM]. In this email the Claimant confirmed that he had secured an alternative job starting on 3 April 2018 and again referred to the possibility of submitting his resignation the following week. The Claimant was required to give a week’[s] notice if he resigned and so I realised that he would have to submit his resignation by 26 March 2018 to be able to start this new job on 3 April 2018.15. On 22 March 2018 the Claimant emailed to say that he had tried to call me on a few occasions and said that he did not know what I meant when I said “using channels” - he said that as this was not a usual situation and he would like me, or someone else, to book it on his behalf. He also said that the period of leave would enable me to investigate his concerns thoroughly and he then set out a further reminder by listing his concerns again (page 967). He asked again for a period of additional leave and said that if it was not granted he would “have no choice but to resign from my prospective employment with the company ... “ (see page 968).16. I called the Claimant to discuss his email. During the call the Claimant made it clear that unless BA agreed to a period of additional paid leave he would resign. I felt that the way he said this was framed as a threat and told him calmly and politely that I would not be threatened to agree to this. There is no obligation on BA to allow additional paid leave where concerns have been raised and in my experience this is highly unusual.17. Following our telephone conversation, the Claimant emailed Karen Slinger (copying in Alex Cruz [the respondent’s Chief Executive Officer]) to give her a “quick update” (page 966). He again asked Karen for a period of additional paid leave and reiterated that if this was not granted he would have no choice but to resign.18. Karen replied to the Claimant and copied me in (which is how I was aware of the Claimant’s email to her). Karen stated that she was not sure of the purpose of the continued emails and that I had already outlined the proposals for when and how his concerns can be discussed. She said that I was the manager who was responsible for overseeing the process now, no[t] her or Alex Cruz. She said that she did not see the company changing the proposal on how we will hear his concerns, as a result of him continually stating that he will resign unless we grant him additional leave (page 966)19. The Claimant replied again to Karen, copying in myself [and] Alex Cruz, setting out his reasons for the leave request again (965).”[81]The email of Ms Pilgrim of 24 March 2018 was at page 964. It was in these terms: “Hello Bartek I believe the manner and way in which you are approaching this situation is now completely inappropriate and I need this constant contact and harassment towards Karen and Alex to now stop. In all of my communications I have been very clear with you, this is a complaint which you are choosing to pursue and I will not be granting you additional leave. l have advised you a few times that you can book leave the usual way which is available to all cabin crew colleagues. I have been very clear with you and have explained to you a few times, that I have met with Stephanie and have her side of the story and have put time in your roster to hear your side on the 11 April. If you require more than an hour to do so on the 11 April, l am more than happy to amend this time and extend your duty day. Further to my communication yesterday, the date of the 11 April will remains [sic] in place, as it is more appropriate to meet face to face. I would also like to remind you that whilst in an extended period of probation I have a high expectation of a colleague’s behaviour and conduct. It is not appropriate to continually harass Karen and Alex, I need you to end further communication to Karen and Alex as l am dealing with this matter. I look forward to meeting you on the 11 April.”[82]We found that email to be completely unobjectionable and to the extent that it was critical of the claimant, completely justified. Ms Pilgrim’s reasons for sending her email of 24 March 2018 at page 964 were stated in paragraphs 20-22 of her witness statement. Paragraphs 20 and 21 in large part repeated the content of the email, except that in paragraph 20, Ms Pilgrim said that she did not intend her email to be “threatening”. Paragraph 22 was in these terms: “I sent the email on page 964 because it was not appropriate for an employee to be contacting senior managers in circumstances where someone (ie. me) had been appointed to deal with these issues and where we had arranged a meeting to discuss them. At the time I sent the email I was not aware that the Claimant had raised various concerns previously which he now claims are whistle blowing disclosures. I can categorically say that the fact that the Claimant had raised previous issues (which I understand he now claims amount to whistleblowing) played no part whatsoever in my decision to email the Claimant and I would have sent such an email to anyone who was inappropriately escalating matters to senior managers.”[83]We accepted that evidence of Ms Pilgrim. We did so not only because we found Ms Pilgrim to be an honest witness, doing her best to tell the truth, but also because in our view it accorded with reality. The claimant’s resignation[84]The claimant resigned in a letter dated 26 March 2018 sent to Ms Maria da Cunha, the respondent’s “Director: People & Legal”. As we say in paragraph 1 above, the letter set out 22 reasons for the resignation. It was at pages 993-996. In it, among other things, for the first time, the claimant complained about what had happened when he was seen by BAHS: In paragraph 17, he said this (and only this) in that regard: “inappropriate conduct of the BAHS meeting which was against the NHS and British Airways values of compassion, integrity, respect and dignity”.[85]The first time that the claimant stated what he meant by that was in response to a request made by Employment Judge R Lewis in a letter of 4 December 2018, in which the claimant was asked to “name each legal claim, and for each claim give a summary of not more than 1000 words, in which he says what happened that is the basis of that claim”. The response was sent on 17 December 2018 and was at page 50 of the bundle. It was in these terms: ‘05/03/2018. I attend the BAHS meeting. The BAHS Nurse Maddie Davidson begins the meeting by saying that it was not supposed to take place on 05 March but 06 March (despite the fact that Ms Butler copied her into our email exchange advising of the meeting being booked on 05 March for 10:30am). She says: “You are lucky that I am even here”. Without asking me any questions, she then states “You’re not the right person for this job, sweetheart”. Finally, she alludes to the protected disclosures that I had made by saying “You should not be the moral compass for the Company”,”( ... ) mind your own business”, “life is unfair” and”( ... ) you will have no life here”. After me making my case as to why I consider myself fit to fly, she signs me off and lets me know that Ms Butler will be in touch to continue with the meeting from 26 February 2018.’ The claimant’s knowledge of the possibility of making a claim to an employment tribunal[86]The claimant told us that he was aware at the latest on 14 March 2018 of the possibility of making a claim to an employment tribunal about treatment which he believed contravened the EqA 2010. His only reason for not making the claim before he did in fact make it was the government guidance which he had set out in the witness statement which he had appended to his witness statement for the hearing before us. That guidance was in these terms: “You must usually make a claim to the tribunal within 3 months of the problem at work happening.• if you think you’ve lost your job unfairly the 3 month period begins from the date your employment ended• if your claim is about discrimination or a dispute over pay, the 3 month period begins when the incident or dispute happened”.
Conclusions
[87]We have already stated (in paragraphs 24 and 26 above respectively) our conclusions that(1) the relevant employees of the respondent did not know that the claimant had made the claimed second and third protected disclosures and(2) the claimed fourth protected disclosure was indeed such a disclosure. Our conclusions on the claims of unlawful conduct on the part of the respondent were these. Claimed detrimental treatment on the ground that the claimant had made a protected disclosure[88]Detriment 1 We saw no failure whatsoever on the part of the respondent to investigate the claimant’s concern about the manner in which hot drinks were served. Thus, the claim to have been subjected to alleged detriment 1 was not well-founded on the facts.[89]Detriment 2 For the reasons stated in paragraph 61 above, the claim to have been subjected to alleged detriment 2 was not well-founded on the facts.[90]Detriment 3 For the reasons stated in paragraph 47 above, the claim to have been subjected to alleged detriment 3 was not well-founded on the facts.[91]Detriment 4 In the circumstances described in paragraphs 53-59 above, we concluded that the contacting by Mr Smith of the claimant as described in paragraphs 56-58 above was not a detriment within the meaning of section 47B of the ERA 1996: it was not the result to any extent of the claimant making protected disclosures within the meaning of section 43B of that Act.[92]Detriment 5 For the reasons stated in paragraph 63 above, the letters referred to in paragraphs 44 (i.e. as referred to in paragraph 28 of Ms Hale’s witness statement, which is set out in paragraph 44 above) and 62 above were not sent in any way because the claimant had made one or more protected disclosures within the meaning of section 43B of the ERA 1996.[93]Detriment 6 As we state in paragraph 66 above, Ms Butler did not extend the claimant’s probation period on 9 February 2018.[94]Detriment 7 For the reasons stated in paragraphs 45-48 and 67-68 above, we determined that the claim to have been subjected to detriment 7 was not wellfounded on the facts.[95]Detriment 8 For the reasons stated in paragraph 61 above, we determined that the claim to have been subjected to detriment 8 was not well-founded on the facts.[96]Detriment 9 Given our factual findings in paragraphs 68-70 above, we came to the conclusion on the balance of probabilities that the change in the stated date of the probation review meeting that was intended by Ms Butler to take place on 26 February 2018 as described in paragraph 48 of Ms Hale’s witness statement and evidenced by the documents referred to in that paragraph was entirely innocent and had nothing whatsoever to do with the fact that the claimant had made one or more protected disclosures.[97]Detriment 10 Given our factual findings in paragraphs 68-70 above, we came to the conclusion on the balance of probabilities that the BAHS meeting that occurred eventually on 5 March 2018 was delayed as shown by what Ms Hale said in paragraph 51 of her witness statement (which is set out in paragraph 68 above) and the documents to which she referred in that paragraph, and that such delays as occurred had nothing whatsoever to do with the fact that the claimant had made one or more protected disclosures.[98]Detriment 11 We found it difficult to believe that the claimant was offended by whatever it was that Ms Davidson said on 5 March 2018, as he did not complain to Ms Butler immediately after that meeting about what Davidson had said at it. Rather (see(1) the first part of paragraph 52 of Ms Hale’s witness statement, set out in paragraph 68 above, and(2) what we say in paragraph 77 above), he spoke positively about it. He was certainly happy with its outcome. The first time that the claimant told the respondent precisely what (he alleged) Ms Davidson said at the consultation of 5 March 2018 was in the document at page 50, which (as stated in paragraph 85 above) was sent to the respondent and the tribunal on 17 December 2018. There was no contemporaneous note of what Ms Davidson had said at that consultation (except, that is, for her short report at page 918). Given the way in which the claimant was quick to complain, we concluded that it was more likely than not that if he had had any real concerns about what Ms Davidson had said to him on 5 March 2018 then he would have complained to the respondent about those concerns shortly afterwards.[99]In any event, we found it extremely hard to believe that Ms Davidson said the things set out in paragraph 85 above as a detrimental response to whatever the claimant had written by way of assertion about the lack of safety of any aspect of the respondent’s operations. However, we did not hear from her, so we determined the matter on the balance of probabilities. Assuming that the things set out in paragraph 85 above were said, we did not know in what context they were said, or in what tone. In addition, the outcome of the meeting during which they were allegedly said was entirely positive as far as the claimant was concerned. We therefore concluded on the balance of probabilities that if Ms Davidson said what was reported by the claimant for the first time some 9 months after she allegedly said it, it was(1) not in the circumstances as we found them to be meant to be offensive and(2) not detrimental conduct in response to any protected disclosure made by the claimant.[100]Detriment 12 Given our factual conclusion stated in paragraph 78 above, we concluded that the claim to have been subjected to alleged detriment 12 was not well-founded on the facts. What Ms Butler did by going back to the email of Mr Puig at page 621 was not detrimental treatment of the claimant for having made one or more protected disclosures.[101]Detriment 13 Given our factual conclusions stated in paragraphs 82 and 83 above, we concluded that the claim to have been subjected to detrimental treatment to any extent on the ground that the claimant had made one or more protected disclosures by being sent Ms Pilgrim’s email at page 964, was not wellfounded on the facts. The claim of automatically unfair dismissal within the meaning of section 103A of the ERA 1996[102]Given our findings on the claimed detriments for the making of one or more protected disclosures, i.e. that the claimant was subjected to no detrimental treatment for the making of one or more protected disclosures, the claim of automatically unfair dismissal within the meaning of section 103A of the ERA 1996 had to fail. The claim of direct sex discrimination as a result of the acts of Mr X[103]As a result of a discussion which we had with him, even the claimant could not see how his claim of discrimination because of sex through the acts of Mr X could succeed. We certainly could not. We did, however, recognise that the claimant had added that claim as he had understood Employment Judge R Lewis to have thought that it was capable of being pursued. The claim of sexual harassment on the part of Mr X[104]As we indicate in paragraphs 28-31 above, we concluded that at no time did the claimant say or indicate in any way to Mr X that Mr X’s attentions were unwanted before Mr X gave the claimant the instant feedback to which we refer in paragraph 34 above. After that feedback was given, the claimant became hostile to Mr X and Mr X kept his distance in all ways from the claimant.[105]As recorded in paragraph 31 above, the most that the claimant could say about his response to Mr X’s initially friendly attentions was that they were not positively encouraged. In our view, that meant that the claim of conduct within the meaning of section 26(2) of the EqA 2010 could not succeed. That was because we concluded that105.1 Mr X’s attentions towards the claimant did not have the purpose of either violating the claimant’s dignity or creating for him an intimidating, hostile, degrading, humiliating or offensive environment, and105.2 having, as required by section 26(4), taken into account(a) the claimant’s perception,(b) the other circumstances of the case, and(c) whether it was reasonable for the attentions of Mr X to have had the effect of violating the claimant’s dignity or creating for him an intimidating, hostile, degrading, humiliating or offensive environment, we concluded that Mr X’s attentions did not have that effect.[106]As for what Mr X said on the escalator, as recorded at the end of paragraph 30 above, it was in our view a stupid thing to say, but106.1 in the circumstances that(1) it was not obviously directed at the claimant,(2) it was said in the presence also of a female member of the cabin crew, and(3) the claimant did not at any time indicate to Mr X that he had no sexual interest in him, it was not said with the purpose of either violating the claimant’s dignity or creating for him an intimidating, hostile, degrading, humiliating or offensive environment, and106.2 having taken into account (a) the claimant’s perception, (b) the other circumstances of the case, and (c) whether it was reasonable for the attentions of Mr X to have had the effect of violating the claimant’s dignity or creating for him an intimidating, hostile, degrading, humiliating or offensive environment, what Mr X said on the escalator as recorded at the end of paragraph 30 above did not have that effect.[107]Thus, the claim of sexual harassment within the meaning of section 26 of the EqA 2010 did not succeed on the facts. In any event, if we had found that it could have succeeded on the facts, we would have been forced to conclude that it was outside the jurisdiction of the tribunal, because it was made outside the primary limitation period of three months (extended if applicable by the early conciliation period) and that the claimant had put before us no evidence to justify the conclusion that it was just and equitable to extend time. The claim of race discrimination[108]Given our conclusion stated in paragraph 76 above, namely that the only thing that Ms Butler said to the claimant at their meeting of 5 March 2018 about his national origins was what Mr Puig had written in his email at page 621 (which we have set out in paragraph 74 above) and a paraphrase of that, we concluded that the claimant’s claim of direct race discrimination had to fail. That was because we concluded that what was said about the claimant by Mr Puig was not less favourable treatment of him because of his Polish nationality, so that reading it out or referring to it was not such treatment. We say that because in our view the reference to the claimant’s “European culture” (or his “Eastern European culture”) was in itself inoffensive, and because in our view it was intended to soften the impact of the criticism that the claimant was “a bit direct when talking to his colleagues”.[109]In any event, if we had found that that claim could have succeeded on the facts, we would have been forced to conclude that it was outside the jurisdiction of the tribunal, because it was made outside the primary limitation period of three months (extended if applicable by the early conciliation period) and that the claimant had put before us no evidence to justify the conclusion that it was just and equitable to extend time. Outcome[110]Accordingly, the claims could not succeed. If they had succeeded, however, then we would have concluded that the claimant’s employment would not have ended any later than the end of his probation period, as, we concluded, whoever made the decision about the completion of the claimant’s probation period would have decided that his employment with the respondent should cease.