Mr P Sarkar v Advice Direct Scotland Ltd: 4100709/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4100709/2025Venue GlasgowHearing 20 – 22 October; 11 & 12 December 2025
Between
Mr P SarkarClaimantAdvice Direct Scotland LtdRespondent
Before
Employment Judge CampbellMr G Cunningham (instructed by Counsel) for respondentDate 9 January 2026
JUDGMENT
[1]The claimant did not make any protected disclosures; and[2]The claim is therefore dismissed.
REASONS
[1]This open preliminary hearing was concerned with the issue of whether the claimant made protected disclosures as defined within sections 43A to L of the Employment Rights Act 1996 (the ‘Act’). He had submitted complaints of detriment and automatically unfair dismissal on the grounds that such disclosures had been made. His period of service with the respondent was between 22 May 2023 and 31 January 2025, and he therefore did not have the two years required to make a ‘standard’ claim of unfair dismissal under sections 94 and 108 of the Act.[2]The listing of this hearing was decided upon at a case management preliminary hearing on 13 June 2025. At that time the claimant, again unrepresented, described his claim and the issues for determination were recorded at paragraph 3 of the judge’s note which followed.[3]The claimant gave evidence and called an employee of the respondent, Jordan Waddell as a witness. The respondent called Pamela Stewart (Deputy Chief Executive) and Andrew Bartlett (Chief Executive) as witnesses.[4]The claimant was employed by the respondent and held the position of Head of Technical Innovation. He alleged that he was both subjected to detriments (under section 47B of the Act) and automatically unfairly dismissed (under section 103A of the Act) by reason of making protected disclosures. If it was found on the conclusion of this hearing that he made protected disclosures, then those complaints would be decided at a future hearing. If he had not, the claim would be dismissed.[5]The parties had exchanged documents and the respondent had prepared a joint hearing bundle in the usual way. Numbers appearing in square brackets below correspond to pages within that bundle. On the morning of the first hearing day the claimant produced further documents which had not been previously shared with the respondent. Those included three spreadsheets which were said to have been referred to in an email he relied on as being a protected disclosure, by way of hyperlinks. The respondent’s position had been that those documents had automatically been deleted from its system and could not be recovered. The claimant had obtained them from their ultimate recipient, the Scottish Government, by way of a request under the Freedom of Information (Scotland) Act 2002.[6]These additional documents appeared to be at least potentially relevant to the claimant’s case, but the respondent’s representatives required to take instructions on them, having not seen them before. The hearing was therefore adjourned until the start of the second day so that this could happen. On resumption of the hearing the respondent confirmed that it did not object to the new documents being added to the bundle and they therefore were. These were referred to as the supplementary bundle.[7]The hearing was partly completed within the original listing and two further days were required. On the morning of the first of those days the claimant provided a second supplementary bundle and discussion was had about whether to allow them, particularly some evidence (including the claimant’s) had been heard. The first two of those documents were ones which the respondent wished its witnesses to speak to in their evidence. The claimant said that he did not need to give his own evidence on any of the new documents, but wished to cross-examine the respondents’ witnesses (who had not yet given their evidence) on them. As both parties were ultimately content for the documents to be accepted as additions to the hearing bundle I allowed this. These additional documents were called the second supplementary bundle.[8]On the last hearing day parties provided submissions by a combination of skeleton notes and oral representations. Those were carefully noted and considered. They were revisited when reaching the conclusions in this judgment. Relevant Law 1. An employee has a right not to suffer a detriment on the ground that they made one of more protected disclosures - section 47(B) of the Act. 2. An employee is separately protected against being dismissed for the sole or principal reason that they made one or more protected disclosures - section 103A of the Act. 3. A protected disclosure must first be a ‘qualifying disclosure’ – section 43B: 43B Disclosures qualifying for protection.(1) In this Part a “qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.(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. 4. A qualifying will be protected if it is made in the way permitted within section 43(C) to (H) of the Act. 5. Further specific principles and case law authorities are referred to under ‘Discussion and decision’ below. Legal Issues The legal issues for determination at this hearing were as identified by the judge at the preliminary hearing on 13 June 2025. To summarise: 1. What disclosures are being relied on by the claimant? 2. Were the disclosures qualifying disclosures under section 43B? [in other words:]a. Was information disclosed?b. Did the claimant reasonably believe that circumstances covered by section 43(B)(1)(a) existed?c. Did the claimant reasonably believe that the protected disclosures were made in the public interest? 3. The claimant’s position in relation to issue 1 at that time was that he had made disclosures to senior employees in an email chain on 14 and 15 January 2025, in internal Teams messages and/or video calls on the same dates. 4. The claimants position in relation to issue 2(b) was that he believed he was disclosing information tending to show ‘significant discrepancies in the figures being prepared both for CitA (Citizens Advice) and the Scottish Government (SG) since ‘out of scope’ calls, abandoned calls and/or missed calls were being reported as completed service cases dating back to Q2 2024, resulting in over-reporting of service volumes’.
Findings of fact
[1]The respondent is a registered charity in Scotland. It provides free advice to members of the public on a range of subjects such as consumer protection, money management, energy provision, the services of Royal Mail, benefits and housing. It provides advice ‘digitally’, meaning by telephone, through online live chat or by an individual completing a form and then receiving a call back from an advisor. It is partly funded by way of grants by the Scottish Government (‘SG’) and other parties.[2]The level of funding provided by SG for the services the respondent provides is agreed annually. It is a flat figure and does not vary according to matters such as the volume of customer calls handled or the meeting of any service level measures. It is paid in quarterly instalments.[3]The respondent provides reports to some parties containing performance statistics. It provides the Citizens Advice Bureau (‘CITA’) with monthly access to statistics on the number of new cases opened. It does not provide any further bespoke reports to CITA. It reports quarterly to SG on the number of contacts which take place, as well as any noted trends in the subject matter or volume of customer activity. A ‘contact’ in this sense would be any interaction between a customer and an advisor. A first contact would lead to the advisor opening a case. Subsequent contacts by that person about the same matter would be recorded as part of the same case, rather than a new case being opened. They would still be treated as a separate contact in their own right. ‘Attempted’ contact in this context would almost exclusively be where an individual telephoned the respondent seeking advice, but hung up the call before it had been answered. These occasions were recorded for the respondent’s own purposes, for example to test whether staffing levels were correct. They were not normally reported to SG. They tended also to be referred to as abandoned calls.[4]The method above was adopted for SG quarterly reports, covering ‘Energy’ and ‘Post’. Energy covers household energy supply queries and Post covers advice given in relation to the services of Royal Mail.[5]Reporting of contact figures to SG is done primarily to show trends in customer issues and experiences. It does not have a bearing on the amount of funding the respondent receives. There are no targets or specific service level standards as such.[6]Reports are provided to SG by the respondent’s Finance team. The claimant’s IT team at times are asked for assistance in providing the raw data figures, typically in spreadsheet format. Those were taken from an internal ‘dashboard’. Members of the IT team did not liaise directly with stakeholders and do not normally see the final versions of reports issued to them. Reports sent to SG contain material in addition to figures which members of the IT team would not have seen.[7]It was the claimant’s case that he had made one or more protected disclosure by way of emails and/or Microsoft Teams messages and/or one-to-one meetings or conversations, in each case on 14 and/or 15 January 2025. Those were considered in turn, and the relevant evidential findings are below. Emails[8]On 14 January 2025 a member of the respondent’s Head of Finance, James Dunleavy, sent an email to Pamela Stewart, Deputy CEO, regarding the statistics contained in a report which had been sent to SG covering quarter 3 of the financial year, which encompassed October to December 2024. Someone within SG had queried them. Ms Stewart replied to ask Mr Dunleavy to ‘speak to IT first’ to verify whether the figures were accurate. Via further exchanges that day it emerged that the report appeared to have been prepared according to CITA parameters, and so including only new cases opened. This was therefore an inconsistent approach with the one adopted in the previous two quarters, and as such an error. Ms Stewart recognised that was the wrong approach and replied to say that ‘We need to make sure we are including everything’. By this she meant all contacts. This was the statistic which she knew the respondent normally reported to SG, and had done in the previous quarters of that financial year.[9]Mr Dunleavy responded to her later that day, asking whether the report should have included ‘all calls, or only cases opened’. Mr Stewart told him to update the figures to ‘full data figures’, again meaning all contacts received. She brought the claimant into the email conversation at this point, asking him for clarification. He replied to say that he did not have time to do that immediately and asked a colleague, Jordan Waddell to provide the necessary information. Ms Stewart confirmed that she wanted the claimant to provide the response and would wait for him to provide it.[10]On 15 January 2025 at 06.52 the claimant provided a substantive response to Ms Stewart’s query [116-118] (the ‘first disclosure email’). He clarified that in the SG reports for quarters 1 and 2 (April to June and July to September 2024 respectively) all contacts had been included in reports and not just new cases. He said that the IT department only sent out figures for cases ‘as per the CITA reporting requirements’. He meant by this that when asked by colleagues to provide figures for draft reports, this was what he understood his department provided. In making this comment he referred to, and posted an extract from, an internal ‘reporting process guide’. However, that guide applied to monthly reports for CITA and not quarterly SG reports. In this way it appeared that he mistakenly assumed that SG reports ought to be prepared in accordance with that guide and should include details of new cases opened only, rather than all contacts which was the correct approach.[11]He said that he could see that Mr Waddell had been asked at the end of October 2024 for a revised report showing all contact figures. He added hyperlinks to three reports which were hosted elsewhere on the respondent’s system. He closed the email by saying that a key lesson for his team was that every request made to it for a report should be clear whether figures for contacts or new cases were being sought.[12]In his evidence the claimant confirmed that he did not at this stage have a belief that any circumstances falling within section 43B(1) of the Act existed, and that rather than conveying information about such a scenario, he was instead trying to clarify whether his own department had followed correct procedures. He did not know at the time what were the specific contents of any report sent to SG.[13]The three reports to which the claimant said he provided links could not be produced to the tribunal. They had been automatically deleted from the respondent’s system in accordance with its data storage policy. The claimant had not retained copies himself, but had attempted to obtain them from SG by way of a Freedom of Information Act request. He included three documents in the hearing bundle [162-169] which he accepted were not identical to those linked to in his email – they were final versions of reports whereas the links were to raw data and less complete earlier versions – but he said that key statistical information within those documents matched.[14]The claimant’s email did not provide the clarification Ms Stewart needed, and she replied at 08.45 that morning to say that every contact should be treated as a case, and therefore the figures for each should be identical. She said that any external report to SG should contain all contacts, and that she needed to understand whether any historic figures had been under-reported. It can now be appreciated that they had not been, but she did not know this when sending her email. She asked the claimant for a correct report the next day at the latest. She did not follow the links in the claimant’s email to whatever reports they disclosed.[15]At 11.36 the claimant replied (the ‘second disclosure email’) [114]. He provided comments referring to CITA reporting. He said that the report for December 2024 included 79 cases with repeat contacts and also calls made by individuals based in England, who were not eligible for advice. He added that the report had not included any abandoned or missed calls (i.e. attempted contacts), where the caller ended the call before it had been answered. He provided the figure for the quarter with those added. He ended the email by saying: ‘Hope this helps. I will also discuss with Conor once he’s back. Thanks, [email signature]’ ‘Conor’ was the head of Business Development, Conor Forbes.[16]This email did not appear to relate directly to the main request Ms Stewart had made, which was to check whether the SG report for quarter three contained all contact figures, consistent with the previous two quarters, or whether instead it had underreported them. The claimant did not answer that question. The information he did provide was unrelated. He still appeared to understand that the format and content of CITA and SG reports were the same. His oral evidence, and the contents of his Teams messages referred to below, were consistent with this.[17]The claimant in evidence said his protected disclosure was contained in the second numbered point, in which he said that the recorded figure for December 2024 for CITA did not include abandoned or missed calls, which if added increased ‘the figure’ from 1718 to 2238. He said in evidence that this reflected his belief that the respondent was ‘confusing an external funder’, namely SG, although he accepted he did not say that in the email.[18]The email overall is not clear in its meaning or purpose. It does not obviously appear to provide an answer to the query of Ms Stewart. It refers to CITA throughout, with no reference to SG. Despite this, the claimant maintained in his evidence that he was referring to reports made to SG.[19]The claimant appears to have made a further erroneous assumption at the time, given the evidence he gave at the hearing. He believed that the respondent did not report to SG details of contacts made by people who are not eligible for its services, for example because they are not based in Scotland. The respondent did report this information. His assumption fed into the belief he had that the respondent had misled SG by reporting on contacts by ineligible customers. Microsoft Teams messages[20]The claimant communicated with colleagues by way of Microsoft Teams messages on 14 and 15 January 2025 in relation to Ms Stewart’s query. He alleged that in the course of messages sent on the latter date and after 11.36 – i.e. the timing of the second disclosure email - he had made one or more protected disclosure.[21]There were only two Teams message from him within that timeframe. The ‘first Teams message’ was sent to Ms Mukherjee and Mr Waddell on 16.47 on 15 January 2025 [129]. He told his colleagues to make sure that the requirements of any report they were asked to prepare were captured and that a report be sent by the end of the quarter.[22]The ‘second Teams message’ from the claimant that day was sent at 17.42 to Mr Waddell, Brian Stewart, who was the respondent’s Operations Manager, and Monica Mills, a receptionist who also took minutes at board meetings [128]. Mr Stewart reported to the Head of Operations, Marjorie Gibson who was at an equivalent level of responsibility to the claimant. This message repeated verbatim the majority of the second disclosure email. It ended with the words ‘Hope this helps.’ One-to-one meetings[23]The claimant met or had in-person discussions with various individuals on 14 and 15 January 2025. These are described in chronological order immediately below as meetings.[24]The ‘first meeting’ was between himself and Mr Dunleavy on 14 January 2025. It lasted around 10 minutes. Mr Dunleavy approached the claimant and asked for help in preparing some reports. He wanted to receive figures for open and closed cases for SG in the same document. The claimant noted the request and said he would ask Mr Waddell to assist with it.[25]The ‘second meeting’ was a regular IT team meeting in the afternoon of 14 January 2025. The claimant, Mr Waddell and Ms Mukherjee attended. The query which Mr Dunleavy had raised was added to the agenda, and discussed. A provisional view was reached that the IT team had not done anything wrong in the way they had provide previous figures to colleagues. The claimant wished to look at the matter in more depth by the next day.[26]The ‘third meeting’ was on 15 January 2025. This was more of an opportune conversation rather than a meeting. From his desk the claimant saw Mr Forbes, Head of Business Development arriving in the office and hanging up his coat, and the claimant asked him if he was aware of an ongoing problem of misreporting figures. Mr Forbes replied to ask whether the claimant was referring to Energy and Post reports, and said that IT had been asked to send the ‘higher’ figures.[27]The ‘fourth meeting’ was between the claimant and Ms Gibson, Head of Operations, later on 15 January 2025. This was another regular scheduled meeting. She said it was difficult to obtain live information from the system and the claimant replied that live data was always available. She pressed him on how reports were prepared and the focus of the discussion became whether IT were given the ‘right definitions’ to report on. The claimant asked her to take another look at any agreement in place with SG to ensure that the reports his department were asked to prepare matched what SG required. The claimant did not know, and therefore did not say, that any reports sent to SG were inaccurate or prepared on the wrong basis. He was asking Ms Gibson to check that his department were being asked to provide the correct raw data. He specifically asked her whether missed calls should be included. He still did not know. Ms Gibson said she would ask Ms Stewart. He confirmed in his evidence that he did not make any statements or assertions during this conversation, but merely asked questions. Discussion and decision[28]The test for what is a protected disclosure consists of two steps. First, whether it is a ‘qualifying’ disclosure according to the requirements of section 43(B)(1) of the Act. Then, if so, is that qualifying disclosure ‘protected’ by virtue of the party to whom it is made with reference to section 43(C) to (H). ‘Qualifying’ disclosure[29]A qualifying disclosure must be all of the following:a. A disclosure of information,b. Reasonably believed to be made in the public interest, andc. Reasonably believed to show the existence of one or more circumstances within section 43(B)(1)(a) to (f).[30]Unless all of the above apply, there will not be a qualifying disclosure – see for example the judgment of the Employment Appeal Tribunal in Williams v Brown UKEAT/0044/19.[31]The requirement to disclose ‘information’ means that there must be some specific factual detail - Cavendish Munro Professional Risks Management Ltd v Geduld UKEAT/0195/09. Whether that has occurred will depend on the specifics of each case, including the context in which a statement is made. Reference to a hypothetical situation, expression of an opinion or the mere suggestion that a law or legal obligation has been breached without further specification may not be enough.[32]There must be a belief that the disclosure of the information in question is in the public interest, and that belief must be objectively reasonable - Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2017] EWCA Civ 979. What is in the ‘public interest’ is not further defined. It need not apply to all of the public at large, and can involve a smaller group such as all employees, customers or service users of an organisation, or even potentially a sub-group within one of those categories. If the matter raised only relates to the person raising it there will be a greater risk that it is not in the public interest (or that any belief that it is would not be reasonably held when objectively assessed). It is however possible that a disclosure could be made (or reasonably believed to be made) both for personal reasons and in the public interest at the same time. Who is affected, in what way and whether the alleged conduct was intentional could all be factors.[33]There must also be a reasonable belief that at least one of the circumstances in section 43(B)(1) has arisen. The complainer therefore need not know for sure that the relevant situation exists but they must believe that it does. That belief must then be assessed in order to understand whether it is reasonable. It may be reasonable even if later proved ‘wrong’, for example by evidence which the individual did not know about at the time of the disclosure. Of more relevance is what the individual knew, or ought to have known, at the time of the disclosure. Because the requirement is that the information disclosed ‘tends to show’ that a relevant scenario exists, the individual making the disclosure does not have to provide absolute proof of it or have gone through an extensive process of weighing up the evidence for and against before their belief is formed – see for example Durey v South Central Ambulance Service NHS Foundation Trust and Protect (Intervenor) [2024] EAT 173. ‘Protected’ disclosure[34]A qualifying disclosure can be protected by being made in various ways or to certain parties. A disclosure by a worker to their employer will qualify under section 43C(1)(a). Normally, a report by them to a more senior colleague will be to their ‘employer’. A report to someone equally or less senior is less likely to be, although the recipient’s role and specific responsibilities may be relevant, as may be the worker’s intention in choosing the recipient and the contents of any specific policy which the employer has put in place. The claimant’s specific alleged protected disclosures[35]Each alleged protected disclosure is considered below in light of the above legal test.[36]The first disclosure email was not a protected disclosure. It is a disclosure of information, but the information does not tend to show any belief in a section 43(B)(1) circumstance, let alone a reasonable belief. The claimant confirmed in evidence that he had no belief in any such circumstance at this point.[37]Much time was taken discussing whether three embedded hyperlinks led to reports with further information, or not. The claimant alleged that they did, and that the documents linked to were at pages [162] to [169] of the bundle. His evidence was not consistent on this, which raised initial doubt. It seemed to settle on the position that those documents contained some of the same information in some way but were not identical. The original versions, if they existed, had been routinely deleted from the respondent’s system and could no longer be recovered. Even accepting the claimant’s evidence, that additional information did not carry the overall communication over the threshold of section 43B.[38]It is therefore not necessary to consider specifically whether the claimant made his alleged disclosure in the public interest. In any event, what he does say in his email appears concerned only with internal communication and how it could be improved between different departments. There is no apparent public interest aspect to it.[39]The second disclosure email was not a protected disclosure. The claimant was insistent that it was. He could not explain in a coherent way why that was so, despite numerous opportunities. As far as his logic could be followed, he took the email to be flagging up a concern that the respondent had been reporting inflated figures to CITA and SG in the previous two quarters of the financial year as compared with the third.[40]The claimant believed he had been making such a disclosure by pointing out that the reported number of calls (contacts) was 1,718 for December 2024, including ‘out of scope contacts’, but if abandoned or missed calls were added then the figure became 2,238 for that month.[41]As such, he provided ‘information’ by way of statistics but those do not convey a belief in a section 43B circumstance, whether reasonably held or not. They simply provide a comparison of two different sets of data. They read as a hypothetical statement and not an assertion of something having been done. Nothing in that, or the language chosen, or the tone of the email, conveys that the claimant believes that anything improper, or even unusual has occurred or may occur. This is supported by the claimant signing off by merely saying ‘Hope this helps’ rather than suggesting any further action, and by his not raising the matter again.[42]The claimant gave evidence in the hearing about his belief at the time he sent the email. His belief in a breach of a legal obligation seemed to have solidified in the period since his dismissal in January 2025 rather than being one which was held in such a clear way at the time when the alleged disclosure was made. He appeared to believe that through inaccurately reporting inflated call handling figures, the respondent would be breaching some form of contractual terms or other conditions agreed with SG relating to the award of the service and its grant funding. He understood – incorrectly – that the respondent was paid a fixed rate for each contact handled, such that its grant income was directly proportionate to the number of contacts dealt with. He had no apparently reasonable basis for holding that belief. He could not identify any material suggesting this was the case. He said in evidence that he initially believed the respondent would also be committing fraud, in effect by unlawfully extracting public money from SG and by extension the public at large. He confirmed that on reflection he no longer holds this belief.[43]Had the claimant genuinely held a belief in either there being a breach of a legal obligation, or fraud, it could not have been reasonably held at the time. He simply did not know enough correct information to be able to reasonably hold such a belief, and some things which contributed to his belief were incorrect. For example, as stated above he believed erroneously that the respondent would gain financially by reporting higher figures and he also thought it may be open to adverse repercussions if figures were in some sense low. Neither was the case, either for CITA or SG. Therefore, even had the figures provided been inflated those consequences would not have followed. He mistakenly believed that the respondent had not to report to SG the number of calls received about Energy or Post from individuals outside of its geographical remit. He did not know any details of the terms of engagement between the respondent and either CITA or SG, or what the final versions of any reports sent to SG looked like. Those were not the concerns of his department. He thought that the reporting protocols for SG and CITA were the same, when they were not.[44]In any event, as stated above, and necessary belief is not evident in the email and he does not express it using information which tended to show it.[45]The first Teams message did not disclose ‘information’ in the way required. It is a brief command to ensure proper process is followed promptly in the future. No section 43(B)(1) circumstance is referred to or implied. It was not sent to the claimant’s ‘employer’ or any other relevant person.[46]The second Teams message repeats the wording of the second disclosure email, but is sent to Mr Waddell, Mr Stewart and Ms Mills without any attachments. For the same reasons as apply to the second disclosure email, this is not a protected disclosure. Nor was it sent to the claimant’s ‘employer’ or another relevant person. None of the recipients had sufficient seniority or relevant responsibility to fall within that definition. The claimant had been communicating with Ms Stewart on the same matters, and she (or Mr Bartlett above her) would have equated to his employer in this context.[47]The first meeting did not involve the claimant conveying ‘information’. His role was to listen before agreeing to carry out the request of Mr Dunleavy.[48]The second meeting did not involve the communication of information of the required type, and nobody attending met the definition of employer or another relevant person.[49]The third meeting was another example of the claimant asking questions rather than providing information.[50]The fourth meeting involved a general discussion about processes and how different departments could work more effectively together. By the claimant’s own admission he asked questions but did not make any statements which would count as a ‘disclosure of information’.
Conclusions
[51]Considering the documentary evidence and the claimant’s own evidence within the hearing, on application of the necessary statutory test he has been unable to show that he made any protected disclosures.[52]As his entire claim is founded on the premise that one or more protected disclosures were made, it cannot progress further and requires to be dismissed.