Gareth Lush v Quorum Cyber Security Ltd: 4104838/2019 and 4107185/2019 Gareth Lush v Quorum Cyber Security Ltd: 4104838/2019 and 4107185/2019
JUDGMENT
[1]The claimant’s claim of unfair dismissal under section 94 of the Employment Rights Act 1996 is dismissed for want of jurisdiction;[2]The parties are directed to provide submissions to the Tribunal as to why the Tribunal should not strike out his claim of automatically unfair dismissal under section 103A of the Employment Rights Act 1996, in order to allow that matter to be determined; and that issue is continued for further consideration following the making of submissions.REASONS
[1]In this case, the claimant presented a claim to the Employment Tribunal on 15 April 2019, in which he ticked the boxes showing that he wished to claim unfair dismissal and unlawful deductions from wages against the respondent. ETZ4(WR)[2]The respondent resisted all claims, and presented an Employers’ Contract Claim (ECC) which is now registered under case no: 4107185/19.[3]The case was allocated to a Preliminary Hearing in order to address the issue of whether the Tribunal had jurisdiction to hear a claim of unfair dismissal. The Preliminary Hearing took place on 4 October 2019. The claimant appeared on his own behalf, and the respondent was represented by Mr K Scott, solicitor.[4]Each party presented a short bundle of documents, to which some reference was made during the brief hearing.[5]The reason why the Tribunal had identified a preliminary issue relating to jurisdiction is that in his claim form, the claimant sets out his dates of employment as being from 2 July 2018 until 5 April 2019, a period of less than the minimum two years’ qualifying service upon which he could base a claim of unfair dismissal under section 108(1) of the Employment Rights Act 1996.[6]The parties each set out their respective positions in brief submissions before me, and it is helpful, while summarising those submissions, to include reference to the pleadings as set out to date.[7]Firstly, the claimant accepted that he has less than two years’ qualifying service with the respondent, and therefore that an unfair dismissal claim is ordinarily unavailable to him. When asked why he considered himself to be unfairly dismissed by the respondent, he said that he was unfairly dismissed because the reason to select him for redundancy was not for cost savings by the respondent, but for some other reason. He said he did not know what that other reason was, but he believed that it is either down to the respondent wishing to avoid paying his commission or due to the concerns he had raised with them about the lack of governance in the company. He said he raised those concerns verbally in January 2019, and in an email to one of the Board directors on 19 February 2019.[8]He went on to say that he believed that the claim was one of automatically unfair dismissal.[9]Reviewing the terms of the ET1, in section 8.2, the second paragraph reads: “I still don’t understand why I was made redundant and not the newly hired Sales Director (whose role I had been doing in addition to other responsibilities). Prior to the 5th March, I was aware that the company had cash flow problems. I had raised verbally and in writing concerns about the lack of governance or risk management by the board and the way the company was funded by an unsecured loan from another company (Quorum Network Resources) tow of the directors owned without any formal loan agreement or interest being charged. There was also no formal agreement for subletting the office from the same company. I had suggested that these actions were illegal.”[10]Mr Scott responded by confirming that it is clear that these concerns are referred to in paragraph 8.2 of the ET1, and that if the claimant is seeking to argue that the reason or principal reason for his dismissal was the making of protected disclosures, there is no requirement upon him to have two years’ qualifying service.[11]In the respondent’s ET3, it is apparent that they anticipated that such a claim may have been made. They denied, in paragraph 4 of the paper apart to the ET3, that the claimant had made a qualifying disclosure, and went on in paragraph 9 to say that if the claimant were found to have made a protected disclosure, any disclosure was not made in good faith but to advance his own personal position with the respondent’s business; and in paragraph 10, that it was denied that he was dismissed for making a disclosure, protected or otherwise.[12]However, he went on to point out that the claimant wrote to the Tribunal in response to the respondent’s ET3, and in particular to the ECC submitted therein. The Tribunal had also requested his clarification as to whether he was making an unfair dismissal claim.[13]In that letter, dated 18 June 2019, the claimant made the following statements: “3. As stated in my claim…, I have not made a protected disclosure. Under advice from a lawyer I used prior to raising this with ACAS, I was advised to claim for unfair dismissal and a Whistleblower claim because, in the absence of any other logical reason why I was chosen to be made redundant, it was suspected that this could be a reason.” “4. As I have stated, many times, I have not said that I made a qualifying disclosure. I am questioning if my concerns raised to the board about improprieties by the board were a factor in choosing to make my role redundant and no one else’s…” “8. As stated before, I have never stated that I made a protected disclosure.” “My decision to include a Whistleblower claim is neither vexatious nor abusive. It was under advice from my legal representative…”[14]When asked about this, the claimant confirmed that the position is that he has not made a protected disclosure. He had a belief that the respondent’s Board was concerned that he was going to do so. He described this as one of the theories he had come to. He simply could not understand why the respondent chose to make him redundant and leave a less experienced colleague in employment. He said he was intending to make disclosures, and if he had done so it would have been in the public interest.[15]Mr Scott concluded by saying that he considered the claimant’s position, while understandable in an unrepresented party, was a new articulation of the claim rather than what had been set out to date.[16]He went on to say that the claim in respect of protected disclosures, if the Tribunal has jurisdiction to hear it, has no reasonable prospect of success. The respondent disputes that there has been any disclosure of information. Concerns or allegations have been expressed. It is necessary for the claimant to show that he reasonably believed these matters to have been in the public interest. Discussion and Decision[17]The purpose of this hearing was to allow the Tribunal to determine whether or not it has jurisdiction to hear a claim of unfair dismissal by the claimant.[18]It is quite clear that the claimant lacks the necessary minimum two years’ qualifying service to make an unfair dismissal under section 94 of the Employment Rights Act 1996, by virtue of section 108(1). As a result, that claim must fall for want of jurisdiction.[19]The complicating matter in this case, however, is that there is another facet to it, which is that in the claim submitted by the claimant, it is apparent that he is seeking to explain the reason for his dismissal as being related to “concerns” he raised prior to the decision to dismiss him, about matters which he considered to be “illegal”.[20]On the face of it, the claimant was seeking to make an argument that the reason for his dismissal was that he had made protected disclosures.[21]Section 103A(1) of the 1996 Act provides: “AN employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”[22]The respondent, in fairness, understood this, and directed part of their ET3 to denying this claim, if it were made.[23]The difficulty for the claimant is that when he saw the ET3, he then wrote to the Tribunal on 18 June 2019, and said, more than once, in unambiguous terms, that he had not made a protected disclosure.[24]He explained to this Tribunal that his position was that he had not made a protected disclosure, but that the respondent dismissed him because they feared or believed that he was going to do so.[25]On the face of it, this claim has no basis. Section 103A(1) provides that a dismissal shall be regarded as unfair if the reason or principal reason for that dismissal is that the employee “made” a protected disclosure; not that he was planning to make, or believed to be about to make, a protected disclosure, but that he had already done so.[26]This presents a difficulty for the claimant. However, it also presents a concern for the Tribunal. This hearing was identified to the parties as one which would deal with jurisdiction. That related to whether or not the claimant had the necessary minimum qualifying service upon which to base a claim of unfair dismissal. Under section 94, he does not, and such an unfair dismissal claim must fail because the Tribunal plainly lacks the jurisdiction to hear it.[27]The issue of jurisdiction itself does not arise in relation to the claim of automatically unfair dismissal. There is no doubt that the claimant presented a claim of automatically unfair dismissal in his ET1, without expressly referring to it as such.[28]In my view, what I am now confronted with is, in effect, a request by the respondent to strike out the claim on the basis that it has no reasonable prospect of success, because the claimant has expressly stated that he had not made protected disclosures prior to his dismissal.[29]I must, therefore, review the powers and obligations of the Tribunal in light of Rule 37 of the Employment Tribunals Rules of Procedure 2013. Rule 37(1)(a) provides: “At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds: (1) that it is scandalous or vexatious or that it has no reasonable prospect of success;” (Tribunal’s emphasis)[30]However, Rule 37(2) also provides that “A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.”[31]It is my judgment that the claimant has not had that reasonable opportunity. He is an unrepresented, unqualified party. He came to this hearing with the understanding that it was related to jurisdiction; he could not have known that there was a risk that his claim, or part of it, might be struck out because it had no reasonable prospect of success.[32]I consider that there is a risk of prejudice to the claimant if I were simply to strike out his claim without his having a reasonable opportunity to respond to the suggestion that, on the basis set out above, his claim of automatically unfair dismissal has no reasonable prospect of success.[33]I am inclined to seek to avoid further expense and delay, and therefore I propose that the claimant be given 14 days from the date of this Judgment to set out any reasons why he proposes that his claim of automatically unfair dismissal should not be struck out on the basis that it lacks any reasonable prospect of success. The respondent will then have 14 days thereafter within which to respond to that submission, and the Tribunal will then conclude its decision on this point.[34]It is open to either party to ask for a hearing on this point.[35]The claimant’s claim of unfair dismissal is dismissed for want of jurisdiction. The claim of automatically unfair dismissal under section 103A is not struck out at this stage, but the parties are now aware that this will be considered by the Tribunal and must make submissions on this point in order to allow the matter to be properly determined. Date of Judgement: 4th October 2019[1]A Preliminary Hearing took place on 4 October 2019 in this case, following which the Tribunal issued a Judgment dismissing the claimant’s claim of unfair dismissal under section 94 of the Employment Rights Act 1996 for want of jurisdiction, and directing parties to provide written submissions as to why the Tribunal should not strike out the claimant’s claim of automatically unfair dismissal under section 103A of the 1996 Act. The ETZ4(WR) issue was continued for further consideration following the making of written submissions.[2]The parties were therefore given 14 days from the date of that Judgment (4 October 2019) to present written submissions to allow the Tribunal to determine whether or not the claim of automatically unfair dismissal has reasonable prospects of success. Claimant’s Submission[3]The claimant wrote to the Tribunal on 15 October, a letter received on 18 October (and therefore in time).[4]He confirmed that he accepted the Tribunal’s Judgment that his claim of unfair dismissal was dismissed, but wished to put forward reasons why his claim of automatically unfair dismissal has a reasonable chance of success and should not be struck out.[5]He said that he had two theories as to why he was selected for redundancy: firstly, that the company was seeking to avoid paying commission that he was due; and secondly, that the company was concerned that he would make a protected disclosure.[6]He went on to reiterate, from previous statements, that “I have always stated that I had not made a protected disclosure”. His position is that he theorised that the respondent’s board of directors suspected that he might. He also sought to correct an error in paragraph 14 of the Judgment, when it was recorded that the claimant said that he was intending to make disclosures; he confirmed that “I had no intention of making a protected disclosure”.[7]He went on to say, very fairly, that having read the Judgment and having carried out further research, he believes that the respondent has a valid argument that his claim is not sufficient to give the Tribunal jurisdiction to allow him to claim automatically unfair dismissal, under the second of theories put forward.[8]However, he wanted to stress that he should have provided an argument for the first theory, namely that the respondent wished to avoid paying commission.[9]The claimant explained that one of the board members had openly questioned his commission plan, despite it having been signed off by the Managing Director in July 2018. He said he was asked by the Managing Director verbally around the same time if he would forgo his commission entirely for an undefined period. He refused, on the basis that his commission plan was contractually part of his salary package, and not discretionary or optional. He suggested that the business could spread the commission payments to him over a three month period in arrears to assist with cashflow.[10]The claimant said, then, that: “It is quite clear to me that the board had no intention of paying my commission, therefore constituting a breach of my contract and my statutory employment rights, specifically making an illegal deduction of my pay. As I understand it, this constitutes an automatically unfair reason, and I would request that you consider this argument.”[11]The claimant acknowledged that this argument is closely linked to his claim for the unpaid commission, but that if the Tribunal were to agree to include the claim for automatically unfair dismissal in the main hearing, both claims will hinge around the validity of his claim for the unpaid commission. Respondent’s Submission[12]Mr Scott, for the respondent, submitted his comments to the Tribunal on 29 October 2019, having received the claimant’s submissions from the Tribunal.[13]He submitted that the claimant has clearly stated that he has not made a protected disclosure and had no intention of making one, and therefore the Tribunal has no jurisdiction to hear any complaint under section 103A of the 1996 Act.[14]Mr Scott submitted that the claim should be struck out under Rule 37(1)(a) of the Employment Tribunals Rules of Procedure (or alternatively Rule 27, as having no reasonable prospect of success, because: 1. The claimant has repeatedly and unambiguously informed the Tribunal that he has not made a protected disclosure. The claim falls at that point. 2. In any event, the claimant has not made a disclosure of information in terms of section 43B(1) of the 1996 Act; and 3. In any event, the claimant could not reasonably be considered to have believed any such disclosure to be in the public interest, the point of contention being an alleged breach of his individual employment contract in connection with commission payments already before the Tribunal.[15]Alternatively, Mr Scott observed that the claimant’s articulation of his claim is in effect an application to amend his claim, which is, or would be, objected to by the respondent and is time-barred anyway. Mr Scott submitted that it could not be said that it was not reasonably practicable for the claimant to have presented the amendment in time, or if it was not reasonably practicable, the claim has not been presented within such further time as the Tribunal should consider reasonable.[16]The claimant has now suggested that the claim of automatically unfair dismissal is based on two separate though related points: firstly that he was selected for redundancy because the respondent suspected that he was about to make a protected disclosure, and secondly that he was selected for redundancy because the respondent wished to avoid paying him his contractual commission payment.[17]Section 103A of the 1996 Act provides: “ An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”[18]The Tribunal, in my judgment, only has jurisdiction to hear a claim under section 103A if it can be founded upon a protected disclosure which has been “made” by the claimant.[19]The claimant has repeatedly clarified his position, that he has not made a protected disclosure; he has gone further, in his submissions now presented, by confirming that he did not intend to make a protected disclosure.[20]Without making a protected disclosure, the claimant does not qualify for the right to make a claim under section 103A. Mr Scott, perhaps adopting a “belt and braces” approach, has also identified difficulties with the issues raised by the claimant as not meeting the definition of a protected disclosure under section 43B, but that submission is, with respect, unnecessary, rendered redundant by the claimant’s clear statement that he did not make a protected disclosure.[21]That being the case, there is no foundation for a claim under section 103A. In fairness to the claimant, it must be noted that he, quite candidly, accepted that the respondent’s argument on this point has some force.[22]What, then, is the claimant seeking to claim? On the basis of the ET1, currently before the Tribunal, the claimant is left with a claim that he was unlawfully deprived of a contractual bonus payment. That claim remains and survives these discussions and hearings, on the basis that there are no jurisdictional barriers preventing the Tribunal from hearing the evidence and determining that issue.[23]In his submission on this matter, the claimant appears to be suggesting that he still wishes to make a claim that he was automatically unfairly dismissed, apparently on the grounds that the respondent deliberately decided to terminate his contract in order to avoid a contractual obligation owed to him.[24]Mr Scott was alert to the possibility that this may amount to an alteration of the grounds on which the claimant’s complaint to this Tribunal is based, and objected to any application to amend sought by the claimant at this stage.[25]The difficulty for the claimant, and indeed as a consequence for the respondent and the Tribunal, is that the precise statutory basis of such a claim has not been articulated by the claimant in his claim form nor in his submission to this Tribunal.[26]The purpose of this decision is to address the question of whether or not the claimant’s claim of automatically unfair dismissal based on protected disclosures has any reasonable prospect of success. I am unable to reach any conclusion on whether or not another type of automatically unfair dismissal claim may have reasonable prospects of success since no such alternative claim is currently before the Tribunal.[27]It is therefore my conclusion that if the claimant wishes to set forth before the Tribunal a complaint that his dismissal was for an unlawful reason on other grounds than that he had made a protected disclosure, it is open to him to make application to amend his claim, but he should note that it is essential that in doing so he sets out the facts upon which he wishes to base that claim, the statutory provision on which he relies in making such a claim, and the reason why he is presenting this claim now and not when he presented his ET1 to the Tribunal.[28]So far as the outstanding matter before me is concerned, it is my judgment that the claimant’s claim that he was automatically unfairly dismissed by the respondent on the grounds of having made a protected disclosure, under section 103A, has no reasonable prospect of success, and is bound to fail. On that basis, that claim is struck out under Rule 37(1)(a). Judgement Date: 15 November 2019