Mr M Radcliffe v CHC Scotia Ltd: 4105373/2023 and Others
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4105373/2023Venue AberdeenHearing 29 September 2023
Between
Mr M RadcliffeClaimantCHC Scotia LimitedRespondent
Before
Employment Judge J M HendryDate 14 January 2026
JUDGMENT
[1]The Tribunal granted the claimant’s application for interim relief;[2]The Tribunal ordered the continuation of the claimant’s contract of employment as an Aircraft Commander and Captain from the date of termination of employment on the 31 August 2023 until the termination or settlement of the complaint;[3]The respondents are ordered to pay the claimant the salary and pension payments to which the claimant was entitled prior to his dismissal and to continue to do so until final determination or settlement of the complaint. E.T. Z4 (WR)
REASONS
Background
[1]The claimant makes an application for interim relief pursuant to section 128(1)(a)(i) of the Employment Rights Act 1996 (the “ERA”) alleging his dismissal as automatically unfair in terms of section 103A of the ERA. The claimant in such an application must satisfy the Tribunal that it is likely that on determining the complaint the Employment Tribunal will find that the reason or principal reason for the claimant’s dismissal was his protected qualifying disclosures.[2]The respondent company was not represented at the Interim Relief hearing on 29 September although the proceedings had been intimated on them. I was addressed by in some detail with the claimant explaining some technical aspects. I considered the application and the documents lodged in support of the application which seemed to give a comprehensive and chronological history. Protected disclosures[3]In this case the Tribunal has to be satisfied that the claimant has “disclosed” information. I noted from the papers there is a long history of interactions between the claimant and his employers which ultimately give the employers a full picture of the claimant’s position in relation to the health and safety breaches he believes have occurred and are still occurring in relation to apparent excessive vibrations in the Sikorsky S-92 helicopter operated by the respondent. There are a number of apparent disclosures all around the same subject matter. The helicopter is widely used in the North Sea. He made numerous and repeated disclosures on several occasions to various different people and this is documented. He argued that the cumulative impact of the disclosures was the reason for the dismissal.[4]The information disclosed tend to show in terms of S43(1)-(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 comply with any legal obligation to which he is subject, (d) that the health and safety of any individual has been, is being or is likely to be endangered, (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.[5]Further it was alleged that it is a criminal offence in terms of s33 of the Health and Safety at Work Act 1974 to fail to discharge the general duty owed to employees and to contravene any health and safety regulations, including The Control of Vibration at Work Regulations 2005. The respondent has a legal obligation to ensure so far as is reasonably practicable, the health, safety and welfare of the claimant and others who fly on the S-92. The health and safety of the claimant and likely others is or has, likely been endangered by the S-92 vibrations. The respondent has not followed the recommendations of the grievance to instruct an analysis of whole body vibrations in the cockpit of the S-92 or permitted an OH assessment to take place. It has not produced the vibration data related to the maintenance defects either. The respondent has failed to produce any risk assessment or conduct any health monitoring on Whole Body Vibrations as per its own health surveillance (and well-being) standard.
Background
[6]I set out my understanding of the background advanced by the claimant and supported by the productions. I take account of the fact that these are not findings in fact and the respondent’s have had no opportunity to respond.[7]The claimant is a senior commercial pilot rated to fly the Sikorsky S-92 Helicopter which he does servicing the oilfields in the North of Scotland. The claimant was dismissed from his contract when he was demoted to co-pilot with a concomitant reduction in his seniority status and salary on 31 August 2023. He was re-engaged as a co-pilot.[8]Since 2021 the claimant experienced ongoing back pain which resulted in an extended period of medical leave from December 2022 to April 2023 temporarily suspended by the respondent’s Aviation Medical Examiner (AME) and was referred to Albyn Hospital for investigations into his back condition. He was diagnosed with having degenerative back disease and told by his consultant that his occupation was a potential causal or worsening factor in that condition. His consultant recommended an Occupational Health Specialist being engaged to conduct an investigation report on the working environment.[9]The respondents engaged Occupational Health Physician Dr. Hyder on 22 March 2023. He provided them with an interim report in March. He advised that the claimant remain off work until the investigation report was concluded. He undertook to investigate the MRI results, the claimant’s medical history as well as data collected from observing the wearing of PPE at work, the seating position, the cockpit environment and routine exposure to whole body vibrations (“WBV”) whilst flying helicopter before advising on a return to work. Dr. Hyder contacted the respondent to request access to the helicopter and information in relation to the WBV.[10]The claimant was aware that the Sikorski S-92 helicopter was known to have high vibration levels and asked at this point if he could move to another helicopter with lower vibration levels. This involved retraining and a cost to the respondent company. That request was not acted upon.[11]On 25 April 2023 the claimant e-mailed the claimant’s HR Director, Paula Leslie indicating that after completing a period of refresher training on S92 Simulator he was convinced that the S92 was causing his degenerative back disease. He further disclosed that the Occupational Health’s Dr. Hyder had requested access to the S-92 along with the vibration data which required to be kept.[12]On 26 April 2023 the claimant e-mailed Peter Lagradi, Manager of Flight Operations regarding a return to work following the AME certifying his fitness to resume flying duties. He disclosed that Occupational Health were concerned about his returning to the S-92 without further adjustments or mitigations which could cause further back problems and had requested vibration data for both aircraft and the H175. The doctor also requested access to the cockpits. The claimant was concerned that the position in which he was required to fly was “cramped”.[13]On 27 April 2023 the claimant wrote to HBOS the UK Operational Director to disclose his concerns about the risk to his health when operating the S-92. Specifically he disclosed his degenerative back disease was likely to have been caused or made worse with the whole body vibrations in the S-92 helicopter but continuing to fly the aircraft could end his career. He requested the date once more and on 28 April 2023 the claimant disclosed to Chief Pilot Marco Massarini and others that a thorough assessment of his working environment was being requested by his consultant including access to the whole body vibrations. The claimant disclosed that the respondent had failed to comply with Dr. Hyder’s request to share vibration data. On 1 May 2023 the claimant wrote to MFO, Peter Lagradi to disclose that the respondents were in his view blocking Dr. Hyder from investigating the cause of his back pain.[14]On 24 May 2023 the claimant used his mobile phone to make a video recording of part of a routine flight. On 27 May the claimant was suspended along with the co-pilot who was flying the helicopter. On 9 June 2023 the claimant raised a grievance complaining about the respondent’s refusal to give access to Dr. Hyder to conduct OH investigation. He had been reinstated to work by AME but his understanding was that this was on the basis that the Occupational Health Report would be completed. HR had in the meantime written to Dr. Hyder to discontinue his services.[15]On 9 June 2023 the claimant wrote to MFO, Peter Lagradi and Chief Pilot Marco Massarini informing them of his grievance explaining matters relating to the disciplinary allegation and disclosed that members of management had liked his videos on social media and yet no one had raised a concern. He disclosed that a number of people had either liked or supported his social media posts. He made reference to others making similar videos and posts. He explained that his phone was at all times on flight safe mode and was unaware of any policy or regulation preventing filming in the cockpit. On 16 June Dr. Hyder wrote to the respondents stating that he had been unable to complete his report because he had not been given access to the workplace or received the vibration levels.[16]The claimant attended a disciplinary hearing on 22 June and explained that he had searched for legislation preventing video recording and had been unable to find any. He explained that the video posts had occurred regularly. He explained that his camera was rolling passively during the duration of the flight in safe flight mode. In his view the “sterile cockpit” requirement had not been breached. He had also asked his co-pilot for permission to record. He explained to the investigator the background including the request for access to the aircraft and vibration data.[17]On 13 July the disciplinary investigation outcome report indicated that he should be disciplined. At this point the claimant disclosed that other Captains had taken photographs and videos of which the company management was aware and yet no action had been taken against them. The investigation report concluded the claimant had disregarded company procedure OMA 1.4.2. and by doing so fallen short of fulfilling his responsibilities as a Commander. They also found that he had also breached a rule against not stowing away portable electronic devices which the claimant argues was an outdated rule that applied to passengers.[18]On 28 June the grievance lodged by the claimant was dealt with along with the disciplinary matter. The grievance related to the claimant’s belief that the respondents were blocking a proper OH assessment. The claimant disclosed that the vibration in the S-92 had been an issue at other companies and one company ‘‘Bristows’’ had produced a report which he believes senior management in his company were aware of. He asked for the OH report to be completed because of the impact on his health. The grievance was not upheld. The claimant was invited to attend a disciplinary hearing which eventually took place on 14 August. He pointed out that there were several days between the posting of the video on 19 May and action had been taken against him on 26. The claimant received the disciplinary outcome of 24 August. He was demoted to co-pilot. Conditions were put on him regaining his command as a Captain. The claimant appealed the decision and lodged an unfair dismissal claim seeking Interim Relief.[19]I remind myself that the word “likely” within this context does not mean simply “more likely than not” but connotes a significantly higher degree of likelihood (Ministry of Justice v. Sarfraz [2011] IRLR 562). The question for the Tribunal is whether the applicant has established that he has a “pretty good” chance of succeeding (Taplin v. CC Shippam Ltd [1978] ICR 1068). In making the Order the Tribunal recognises that interim relief is a serious measure which could cause irretrievable prejudice to the respondent not one that should be taken lightly. The test that is to be applied to all issues is the assessment of the section 103A claim.[20]In my view the claimant has met the test. The conjunction of events namely the raising of whistleblowing concerns, pushing for answers and then being severely disciplined and effectively dismissed for what seemed to be a condoned practice are all persuasive factors suggesting an unfair dismissal.[21]The background circumstances show that the claimant has repeatedly raised the possible effect on his back condition of vibrations cause by the aircraft. The correspondence seems to show a marked reluctance to provide the Occupational Health physician, instructed by the respondent, with either access to the vibration data or the actual cabin layout. The report was then cancelled although it is apparent that the issues that it was to address remain unanswered. Connected to this was the claimant passively taking a video of his working environment and being dismissed from his post as a consequence against a seeming background of mangers being tolerant of the taking of photographs and videos in other circumstances. At this stage I do not need to consider the detailed formulation of the PIDs. That will no doubt happen once the pleadings have crystallised but at present there is ample material before me to conclude that there were disclosures and they appear to be clearly Protected Interest Disclosures made by the claimant both on his own behalf but also on behalf of other employees who fly this helicopter and whose health may be impacted by the working environment a particularly the vibrations experienced in the aircraft. Weighing these disclosures against the reasons given for the disciplinary action and the context in which it occurred my conclusion was that the claim is likely to succeed. There was no appearance by the respondent company and accordingly I will make an order continuing the claimant’s contract.[22]Ms Shiels’ argument is superficially attractive but to accept it would mean a departure from the ET Rules creating an exception for an interim award preventing reconsideration even where the interests of justice would require it. I do not accept that this was the intention of Parliament when providing this particular remedy, interim relief, to remove it from the overall framework of the ET Rules. This would be unsatisfactory. It would mean that even the sort of clear grounds given as grounds for reconsideration (review) under the ‘old’ Rules such as a decision being made due to an administrative error or where a party did not receive a notice would be debarred from the process. In my view the interim award can properly be subject to reconsideration.[23]The next question is whether or not it is in the interests of justice for the reconsideration to be granted. I regret to say that I have very little sympathy for the situation that the respondent company finds themselves in. The application was properly served (that was accepted) and it was a serious failing in the system they had set up for checking mail and redirecting it appropriately that caused the difficulty for them. Nevertheless, that does not necessarily debar them from this remedy. In circumstances such as these the focus for the reconsideration must relate to the strength of the defence to the claim or to some obvious problem with the claim being advanced that would have succeeded if the respondent had been represented at the initial hearing. Accordingly, we must therefore look carefully at the grounds that would have been advanced and which are advanced now.[24]The respondent’s agents say that there was no “Hogg” dismissal. They point to the legal principle that disciplinary appeals which overturn a dismissal have the legal effect of restoring the employer/employee relationship as if the original dismissal had not taken effect. Ms Shiels did not dispute the principle but argued that this was not an analogous situation. The claimant had not overturned a dismissal by the employer. He had mitigated through the appeal process the financial penalty that would otherwise follow his demotion but only for a period. He had still been demoted and entitled to regard himself as dismissed. An aggrieved employee is entitled to seek redress (Buckland v Bournemouth University [2010] EWCA Civ 121).[25]The legal principle that Ms Usher says applies was considered in the case of Patel v Folkstone Nursing Home Ltd [2018] EWCA Civ. The claimant was a care assistant, who had been dismissed over two charges of misconduct. He appealed under a contractual procedure, and was told by letter that his appeal had been successful. He refused to return to work and claimed unfair dismissal. Before the Employment Tribunal the respondent argued that the successful appeal had re-instated the claimant, so there was no dismissal. The ET rejected this argument. The Court of Appeal overturned that decision holding that in the context of an ordinary employment contract the effect of a contractual right of appeal against dismissal is that a successful appeal revives the contract and ’extinguishes’ the original dismissal.[26]It seems to me that the situation here, as Ms Shiels submits is not analogous. It seems to be accepted that the appeal process here was not contractual but there is a more significant difference. The fact that here the appeal mitigated the penalty would not restore the contract to what it had been before the disciplinary hearing. Ms Usher emphasised the protection of his salary (for a period of a year to allow him to retrain) but that ignores the other substantial effects of the demotion. I noted that in the recent case of Jackson v The University Hospitals of North Midlands NHS Trust 2023 EAT it was held that there was still a “Hogg” dismissal where a nurse had lost her grade 6 position and had been given a lower grade job but with her salary preserved. She went on to lodge grievances about the process. The EAT held that the Tribunal had erred in not considering the letter from the employer telling the claimant this was not a "Hogg" dismissal. The Judge set out the options an employee had in this sort of situation from acceptance of the new terms, claiming “constructive dismissal” and leaving to remaining and claiming dismissal under the Hogg principles. In addition, in the present case the respondent accepted that the appeal process adopted was not contractual.[27]In these circumstances I can see no bar to the claimant proceeding with his claim for unfair dismissal. That claim might not ultimately be upheld by a Tribunal but the argument put forward by the respondent that a partially successful appeal means there can be no dismissal is misconceived.[28]It was suggested interim relief is best suited to a situation where an employee is no longer in active employment. The award of interim relief here would operate to undermine a disciplinary decision that had been taken by the respondent in respect of admitted misconduct. The award causes other difficulties. The claimant was not obliged to work. This has placed the respondent in a very difficult position in terms of managing the claimant’s ongoing employment. It is also argued that the misconduct was sufficiently serious to warrant a disciplinary sanction and was not in any way influenced by any protected disclosure made by the claimant. The claimant had admitted that he had taken the video footage and this was serious misconduct. The respondent company has a clear duty to ensure that the flights are operated safely and in a professional manner.[29]The other grounds for the reconsideration relate to the suggestion that the claimant minimised the seriousness of his actions. The information given to the Tribunal at the interim relief hearing explains fully the reason for the conduct and the claimant’s understanding that filming was tolerated if not on occasions encouraged. However, he had accepted that although this had been his understanding that filming was prohibited on safety grounds. The Tribunal fully examined the allegations and the claimant's position. Although there was no appearance at the hearing on behalf of the respondent their position on the disciplinary matters was set out clearly in the documentation produced.[30]The final ground was that if there had been attendance at the hearing the Tribunal would have been told that they were not prepared to allow the claimant to return to the role of Captain. That seems to have been clear from the disciplinary outcome and appeal. How the respondent responds to the order which is to preserve the claimant’s contract until the merits of the proceedings are determined is of course a matter for them but I am of the view that they are in no different a position to that of any employer where such an order is granted and that the practical difficulties are minimal as the effect of the appeal is to allow the claimant to fly as a Co- Pilot rather than as a Captain.[31]For the foregoing reasons I am not convinced that it is in the interests of justice to grant the reconsideration disturbing the interim relief award already made.[32]Correspondence was sent to the claimant on 24 March (R210) asking him to return his iPad and security passes and to arrange the emptying of his locker. This was done.[33]During this period the claimant had raised proceedings for personal injury in the Court of Session against CHC Scotia Limited. In the summons (R215) the record was adjusted for the defender on 23 August 2024 and for the pursuer on 14 April 2025. Statement 9 of the Record contains the averments that the pursuer does not know whether he will be able to return to flying. This was adjusted on 14 April. Added to these averments was: ‘‘The pursuer resigned his post as a Captain on 12 February 2025’’. Submissions[34]I apologise in advance if my summary of both parties’ submissions is lengthy.[35]Mr Hardman first of all narrated the background to the Interim Relief hearing and the non-attendance by the respondent. At this point the claimant had raised proceedings for unfair dismissal after the initial decision to demote him from Captain to Co-pilot but before the outcome of the claimant’s appeal against demotion which was issued on 27 September 2023. It was accepted that the outcome was to reduce the sanction issued by continuing the claimant’s pay and other emoluments during the period of temporary demotion. In his submission the effect of that internal appeal decision was to continue the claimant’s employment in all practical ways, particularly with regards to pay and other emoluments, irrespective of the CCO issued on 29th September 2023.The respondent’s position was that the claimant continued to be employed by the respondent and receive his pay and other emoluments not because of the CCO but because of the outcome of his appeal.[36]He then considered the terms of the application for reconsideration made on 1 November 2023 (Rp53 – 55). As part of the Reconsideration Judgment (in recognition of the fact that the claimant continued to be employed by the respondent in the capacity of a Co-Pilot), the Employment Judge held that: "The effect of the appeal is to allow the claimant to fly as a co-pilot rather than as a captain" (p125). There was no dispute, at that time, between the parties that the claimant continued to be employed by the respondent because, even if he had been dismissed by virtue of the temporary demotion he had been immediately re-engaged.[37]In the ET1 forms lodged by the claimant on 7 September 2023 and on 5 December 2023, it was averred that: "The dismissal was effective on 31 August 2023 and he was re-engaged as a Co-pilot effective 1 September 2023." (p17 and 74). The claimant had also continued, after the date of the alleged dismissal (on 31 August 2023) to contact the respondent regarding a return to work and training on the H175 helicopter, which it is submitted that he would not have done if he had genuinely believed that his employment had come to an end. The claimant also advised, in his evidence-in-chief at the final hearing, that he was continuing to access his work emails throughout 2024.[38]Counsel also referred to the action for personal injury raised by the claimant before the Court of Session (as adjusted on 14 April 2025) and the averment that "the pursuer resigned from his post as a Captain on 12 February 2025" (p229).[39]He pointed out that restoration of salary and pension were not limited to one year. They were not limited in time at all. (p191) “Demotion to SFO will be upheld, however given the nature which revolves mainly around non-technical skills, you will remain on Captains salary, as per your current pay scale, for the period from the 1st of September and the next 12 Months or until such a time where you can have reasonably done 2 simulator sessions to gain a positive command recommendation and pass a Command Line Check and MFO interview” .[40]It was clear in his submission that both parties considered the claimant to be employed by the respondent after the temporary demotion (with the respondent submitting that the employment had not terminated at all but, with both parties making the argument that, if the employment had terminated by reason of the temporary demotion, the claimant had been re-engaged as a Co-Pilot with effect from 1 September 2023).[41]Counsel then narrated the history of the contacts with the claimant which were efforts to arrange his attendance on training on a different aircraft that might be more suitable for him and the lack of response to these contacts.[42]It was explained that on 22 December 2024, Ms Usher the solicitor acting for the company wrote to the claimant’s solicitor to advise that the respondent had been trying to make contact with the claimant by email dated 26 November and 5 December, but had not received a response (p195). Ms Usher asked Ms Shiels to ask her client to respond. It is accepted by the claimant’s solicitor that she did not do so at this time. However, given that the claimant continued to have access and, given Ms Usher's email to Ms Shiels on 22 December 2024, it is submitted that he should have taken steps to check those emails.[43]In the absence of any response Mr Legradi invited the claimant to attend a meeting on 13 February 2025 (by letter and email dated 31 January 2025 (p196/198).[44]On 12 February 2025, Ms Shiels wrote to Ms Usher (p203) setting out her client’s position. “My client no longer has an ongoing relationship with your client, other than the terms of the Continuation of Contract Order. The order is for the purpose of salary and benefits only. My client did not receive the email correspondence in November or December, as he no longer accesses his work emails. Until now, your client has not been in contact with my client since the appeal outcome letter of 27 September 2023, some 16 months ago. Further, he received no response to his email to Kirsty Ion on 22 September 2023. CHC failed to progress a return to work following the removal of his suspension in August 2023 and no steps were taken by CHC to arrange line training sorties, pass a line check or complete a formal interview with the MFO following the disciplinary outcome in August 2023. Furthermore CHC has since allowed all his certifications to lapse and did not keep him current. In addition, no steps were taken to enable my client to understand the extent of vibrations he can be exposed to without further spinal problems. For your information his class 1 medical continues to be valid. These failures are a breach of the implied term of mutual trust and confidence. If CHC consider our client to be employed as a co-pilot, despite their repudiation of such a contract, there being no offer of work for 17 months and therefore no acceptance by our client, inviting my client to a capability meeting is the last straw. For the avoidance of doubt, he is accepting these repudiatory breaches today, and is no longer an employee of CHC in any capacity. He will not therefore be attending any meetings with CHC.”[45]The position was, he submitted, that the claimant says he was no longer employed by them in any capacity as there had been a breakdown in trust and confidence. He had resigned with effect from 12 February 2025. Crucially in Counsel’s opinion he had made it unequivocally clear on that date (and when giving evidence at the Tribunal hearing) that he has no willingness to return to work for the respondent in any capacity which would be necessary in order for the interim relief to remain in place).[46]Counsel referred the Tribunal to the terms of s129(8) ERA. It appears that, while the claimant was previously willing to accept the role as a Co-Pilot, as is noted in the claimant's various ET1s that he was “re-engaged as a Co-Pilot from 1 September 2023” (pages 17 and 74 of the bundle), he was no longer willing to accept that engagement (as evidenced by his resignation of 12 February 2025). It is submitted that the claimant's refusal to return to work as a Co-Pilot is wholly unreasonable. The claimant has advised in his evidence before the Employment Tribunal that he would not return to flying an S-92 aircraft. He also submitted in his pleadings in a personal injury action before the Court of Session (dated 17 July 2024) that “At present the pursuer is unable to fly helicopters” (page 217 of the bundle). In an adjusted summons (dated 14 April 2025), the claimant has averred that: “the pursuer is not sure if he will be able to return to flying” (page 229). He has now (by way of his resignation of 12 February 2025) made it clear that he also has no interest in being trained on the H175 aircraft by the respondent. In these circumstances, there is no capacity in which the claimant could practically return to work. That has been a change of circumstances that means that orders for interim relief are no longer appropriate. Separately and in any event, the basis for the original orders for interim relief have now been completely superseded by the claimant's resignation from employment on 12 February 2025.[47]Ms Shiels referred the Tribunal to the interim relief hearing on 29 September 2023. At that hearing the claimant informed the Tribunal that while his appeal against dismissal as Commander was unsuccessful, the respondent had agreed to pay his Captain’s salary for a period of 12 months but that a failure to regain command within that period, would result in the claimant receiving the salary of a Senior First Officer/Co-pilot [p190]. The tribunal decided that it appeared likely that on determining the complaint to which the application related, the tribunal would find that the reason (or if more than one the principal reason) for the dismissal was section 103A ERA 1996. As the respondent failed to attend, a CCO was made under section 129 for the purposes of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters, and for the purposes of determining for any purpose, the period for which the employee has been continuously employed, from the date of its termination (whether before or after the making of the order) until the determination or settlement of the complaint.[48]After receipt of an ACAS EC certificate the claimant submitted a further complaint (4107204/2023) for Whistleblowing Detriment in terms of Section 47B(1) ERA 1996 on 5th December 2023 and included averments occurring since the lodging of the previous claim [p126]. These included that no steps had been taken by the respondent to enable the claimant to return to flying duties and that on or around 19th October 2023, the respondent had not made arrangements for the claimant’s pilot licence to remain current, namely line checks and simulator checks in Norway.[49]Since, the outcome of the Disciplinary Appeal on 27th September 2023 [p190] the claimant had no contact with the respondent until he received a letter by post on 4th February 2025 [p197]. The letter was dated 31 January 2025, from Peter Legradi the Manager of Flight Operations (MFO). It stated, “you remain employed by us as a Co-pilot and you can be rostered to work on that basis. We therefore require you to engage with questions relating to your current fitness to work and ability to report for duty.” The letter also stated that if the claimant did not attend the meeting, “we will treat your absence from work as unauthorised”.[50]Earlier emails had not been seen by the claimant as they were sent to his work email address [p193]. The email of 5 December 2024 stated that the claimant was “rostered on this week and next”. A ten-day merits hearing was fixed for that period, commencing 2 December 2024 to 13th December, which the respondent was aware of. That hearing was subsequently postponed.[51]As a courtesy, the respondent’s representative was advised by the claimant’s representative that he would not be attending the meeting, on the grounds there is no ongoing relationship other than the CCO and if there was he was resigning from such a relationship. The respondent had made no contact with the claimant since the appeal outcome letter some 16 months earlier, failed to progress a return to work following the removal of his suspension in August 2023, had taken no steps to arrange line training sorties, pass a line check or complete a formal interview with the MFO, following the disciplinary outcome in August 2023 and furthermore, had allowed all his certifications to lapse so his license to fly was no longer current. She then clarified that if the respondent considered that the claimant was “employed by us as a Co-pilot and … can be rostered to work on that basis (which is denied), he is accepting the breaches and is no longer employed.” The respondent treated that without prejudice correspondence as a resignation so on that basis the claimant’s solicitors lodged a protective ‘‘esto’’ claim for unfair constructive dismissal. The claimant has at no time agreed or affirmed a co-pilot contract or waived the breach. If there was a valid contract of employment between the claimant and the respondent, (which is denied), after the dismissal from his Commander contract on 31 August 2023 [p171], the appeal outcome on 27 September 2023 [p191] or the CCO, the respondent breached any such contract and the claimant accepted the breaches.[52]In her submission the application must show a relevant change of circumstances since the date of the order being made and in Ms Shiels submission there have been no relevant changes of circumstances since the granting of the order on 29 October 2023.[53]It is submitted that the circumstances founded upon by the respondent’s Counsel relate solely to the purported co-pilot contract and are not relevant to the CCO relating to the claimant’s Aircraft Commander, contract, from which he was dismissed on 31 August 2023. It was denied that the respondent continued to employ the claimant as a co-pilot. The CCO does not require the claimant to work in any capacity.[54]The respondent says that the claimant resigned from a co-pilot contract on 12th February 2025 for a different reason than the claimant alleges was the reason he was dismissed from his Captain’s contract on 31 August 2023. The claimant’s position that if there was a contract between parties then the claimant had been constructively dismissed. That was not relevant to the CCO granted in relation to the dismissal of a different contract. It is a matter for the Tribunal hearing the claims. In any event, it cannot be disputed that a constructive dismissal from a purported co-pilot contract is connected to the protected disclosures. The recent claim submitted relies on the same reasons, namely protected disclosures. It does not follow that a CCO made by the Tribunal, and which determined that it appeared likely that the tribunal will find that the reason for the dismissal was the making of protected disclosures, is superseded under a misapprehension, some 16 months later, that the claimant is employed as a co-pilot. The respondent submitted that the claimant has no intention of returning to work for the respondent in any capacity and that this is a relevant change of circumstance. Most employees who seek interim relief are expressly dismissed and the employment terminates. In granting a CCO, there is no requirement for such employees to have an intention to return to work. Neither is there a requirement to accept re-engagement under a different contract, which offers less favourable terms and conditions, including pay. Both are irrelevant to the making of a CCO or its revocation.[55]Ms Shiels stressed that it was not for this Tribunal, on an application for revocation or for any Tribunal hearing an application for Interim Relief, to determine some of the substantive issues of the claim. That was a matter for the Tribunal hearing the full merits of all the conjoined claim. The respondent’s application for revocation is not an opportunity to either review or reconsider the Tribunal’s CCO. It is not therefore appropriate to go through the process again, to determine whether the correct decision was made at the time or whether at the present time, the claimant still has a pretty good chance of success with his claims. This hearing is solely for determining whether the order should be revoked on the ground of a relevant change of circumstances, since the making of the order.[56]Equally, the terms of the CCO relate only to the dismissal of the contract as a Commander, it is not for this Tribunal to determine whether there was a Hogg dismissal or otherwise. That will be determined by the final judgment issued on the merits. That Tribunal will have to decide if it was a Hogg dismissal or if there was a contract variation that was affirmed by the claimant or further repudiatory breaches by the respondent, which were accepted by the claimant.[57]Ms Shiels referred the Tribunal to the cases of Dowling v M E Ilic Haulage, [2004] ICR 1176 and in relation to ‘perishable skills’ William Hill v Tucker, [1998] IRLR 313, (CA).[58]She emphasised that the respondent argues that the claimant was immediately re-engaged or alternatively, he accepted re-engagement on 27th September 2023 when he received the appeal outcome. If that was so, it was a unilateral variation which amounted to an express dismissal of the Commander contract. The question of whether the claimant was re-engaged as a co-pilot, was she said irrelevant to the claims for automatic unfair dismissal and the CCO. There had been no change of circumstances.[59]Finally, she submitted that the basis for any revocation was narrow. A CCO was generally only revoked when the employee obtained new employment earning the same or more than in the previous employment. (Fleming v Abbey Metal, 8000032/2023.[60]The claimant has an Interim Relief Judgment dated 19 October 2023, through the making of a Continuation of Contract Order (CCO). The respondent has made an application to revoke the interim relief Order alleging a change of circumstances. Section 131(1) of the (ERA) provides that an application may be made: “on the ground of a relevant change of circumstances since the making of the order…”. Section 131(2) says that: ‘‘Sections 128 and 129 apply in relation to such an application as in relation to an original application for interim relief…’’[61]Section 129(1) is in these terms: “(1)This section applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find— (a ) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— i)section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or (ii)paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or (b)that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met.”[62]Section 129(3) provides that when an employee applies for interim relief, an employer should be asked whether they would be willing, pending determination or settlement of the complaint, to reinstate the employee or if not, to re-engage them in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed (s129(3)).[63]Section 129(6) and (7) are in the following terms: “6) If the employer –(a) States that he is willing to re-engage the employee in another job, and(b) Specifies the terms and conditions on which he is willing to do so, The tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions. (7) If the employee is willing to accept the job on those terms and conditions, the tribunal shall make an order to that effect. (8) If the employee is not willing to accept the job on those terms and conditions – (a) where the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an order for the continuation of his contract of employment, and (b) otherwise, the tribunal shall make no order.”[65]The issue to be determined is whether or not there has been a relevant change of circumstances since the making of the CCO.[66]The situation that has developed since the grant of the CCO seems unfortunate. It is accepted that there was no contact, or no meaningful contact, with the claimant from the ending of the disciplinary process in 2023 until late 2024. I can understand the respondent’s confusion as to the claimant’s intentions as to where he intended returning to work. From the outset the claimant’s complaint was described as being a Hogg type dismissal. That case drew a distinction between the ending of a particular contract of employment through a unilateral variation of it and the termination of any new employment relationship. The case was considered again by the EAT in Jackson v The University Hospitals of the North Midlands NHS Trust EA-2022-000134- LA. That case gives a helpful analysis of the various options open to an employee facing the situation where changes to their employment contract are unilaterally imposed. At paragraph 30 those options are put as follows by Judge Barry Clark: “The case of Hogg v. Dover College and its usual companion, Alcan Extrusions v. Yates [1996] IRLR 327, are familiar fare to employment lawyers when giving advice about the consequences of an employer’s decision to restructure its workforce. When an employer has neither sought nor achieved agreement with the affected employees, and when it does not wish to take the so-called “fire and re-hire” option, it may consider the risky option of unilaterally imposing a change to terms and conditions of employment. The options available to an employee in response are widely understood to comprise:(1) to resign and claim constructive unfair dismissal, subject to qualifying service and showing that the breach was repudiatory;(2) to waive any repudiatory breach/affirm the contract and agree to work under the new terms;(3) depending on the nature of the change, to refuse to work under the new terms and (in terms) dare the employer to dismiss;(4) to “stand and sue” by working under protest but bringing proceedings for breach of contract and/or any shortfall in wages (the classic case being Rigby v. Ferodo Ltd 1988 ICR 29 HL); and(5) to work under the new contract but assert dismissal from the old contract, which – subject again to qualifying service – can form the basis for a complaint of unfair dismissal. The fifth option is the Hogg dismissal.”[67]Because the case was said by the claimant’s solicitor to be a Hogg type case it was perhaps understandable that the respondent’s advisers considered that by describing it as such the claimant intended continuing to work under it for their clients. He did not in fact return to work. His intentions do not appear to have been clarified by his employer until somewhat belatedly in late 2024. There is still a live dispute as to whether the claimant must be held to have continued to work under his ‘‘old’’ or ‘‘original’’ contract following the successful appeal (being the respondent’s primary argument) or had in some way accepted a new contract as a Co-Pilot which is their secondary argument. As noted they seem to have been slow to progress any return to work or generally to keep up the sort of expected relationship that they needed to maintain with someone that they regarded as an employee. My understanding was that the claimant was fit to return to duties for some time.[68]Mr Hardman made reference to statements by the claimant or made on his behalf indicating that he resigned in February of this year ending any employment relationship. The dismissal case is now with another Tribunal which has not concluded hearing evidence. That Tribunal requires to consider the contractual position in the light of the facts that they find and determine what the contractual position is before concluding whether the claimant has been unfairly dismissed. This means that this Tribunal must be very cautious in its approach.[69]Ms Shiels suggests there was no ongoing contract of employment following the dismissal or separately if there was some new employment contract created that the termination in February of what could be described as a second or continuing employment relationship that termination could have no impact on the CCO (which applies to the ‘‘first’’ contract on which the claim for unfair dismissal proceeds). It appears to me that Mr Hardman is inviting this Tribunal to tread on dangerous ground and to determine the very issues that sit with the Tribunal hearing the merits.[70]The starting point is the terms of the statutory right to Interim Relief and the proper effect of the CCO. The remedy was granted in relation to a complaint that the claimant was entitled to accept his treatment by the respondent as repudiatory. The claimant raises Employment Tribunal proceedings alleging unfair dismissal although he does not appear to have formally resigned. That is not surprising and is in accordance with him proceeding on the basis of a Hogg type situation.[71]An order for continuation of contract is a misleading title as the Act makes clear that the contract is continued only for the purposes of protecting the claimant’s position in respect to ‘‘pay or any other benefit derived from the employment, seniority, pension rights and other similar matters’’ (Section 130(1)(a)).[72]The effect of the order was discussed in the case of Dowling to which parties referred. That case had to consider whether a CCO preserved the contract to allow it to be transferred in a TUPE transfer. The EAT held that it did not constitute an employment contract. The contractual provisions are only kept alive for the purposes set out in the section. The contract had been brought to an end through the dismissal. That is the appropriate starting point.[73]The issue is whether there has been a change of circumstances since the grant of the order. That means looking at the circumstances in place when the order was granted. I accept that it is an important feature of the remedy that if the employer attends the hearing (they did not do so in this case for reasons I need not go into) they are asked if they will reinstate or re-engage a claimant. If they make the offer and it is accepted then no order is made. If they do not then an order can be made. A claimant will not succeed in obtaining an CCO if they unreasonably refuse an offer of reinstatement or re-engagement. Section 130 preserves important aspects of the contract and it is interesting to note that not only is pay preserved but also ‘‘seniority, pension rights and other similar matters’’. It not only means that the claimant is protected during the currency of the order but it also means that if vindicated at the final hearing they would be in a strong position to seek reinstatement or re-engagement.[74]The case referred to by Ms Shiels (Fleming v Abbey Metal) indicates that a claimant will lose the protection afforded by the CCO in circumstances where they get better paid employment. I considered whether the possibility of a claimant seeking reinstatement or re-engagement must remain their position and if any change could amount to a reason for revocation. If as here the claimant says I am never going back does that allow for revocation of the order? There is no provision that the CCO will come to an end if a claimant indicates that they are no longer seeking reinstatement/re-engagement.[75]There is no guidance as to what constitutes a change in circumstances in the Statute. Section 131 which deals with revocation simply refers to a change of circumstances and that must mean the circumstances in place when the CCO was granted under Section 129. Section 129 contains requirements needed before the order can be granted. Specifically Subsections 5 and 6 say: “5) If the employer states that he is willing to reinstate the employee, the tribunal shall make an order to that effect. (6) If the employer—(a) states that he is willing to re-engage the employee in another job, and(b) specifies the terms and conditions on which he is willing to do so, the tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions.” Under Section 129(8) if an employee unreasonably refuses an offer of reinstatement/re-engagement then the Tribunal will refuse the application. However, there is no requirement in Section 129 for the aggrieved claimant to seek reinstatement/re-engagement and it is only where it is offered and refused the statute provides that the CCO will not be made. In this case no such offers were made or refused at the hearing.[76]The difficulty I have with the respondent’s position is that the CCO was granted in relation to the possible unfair dismissal arising from the demotion and not arising from any other possible dismissal or employment relationship. I therefore struggle to see the relevance of the claimant’s later position expressed by him to the original circumstances in which the CCO was made. The claimant does not need to seek reinstatement or re-engagement to apply for or obtain an Interim Relief order and the question of whether or not he is prepared to return to work for the respondent is irrelevant. The CCO only continues the contract for limited purposes. The test was whether he was likely to succeed in a claim for unfair dismissal arising from those particular circumstances. The statute provides that the order is to remain until determination or settlement of the claim.[77]My view is that these orders exist to ensure that in particular classes of claimant they as a matter of public policy be protected in this way. Any change of circumstances justifying revocation must refer to the basis on which the CCO was granted. Even if the respondent is correct that there was a new employment relationship created (the first having terminated through a repudiatory breach) any actions of the claimant in relation to that second contract such as resignation or expressing a view that they would not return to work for them appears to be the sort of change justifying revocation that is envisaged by the section. To accept the respondent’s submissions would be to envisage that this important statutory right, having been granted, was contingent on a claimant seeking re-engagement or re-instatement throughout the currency of the proceedings although this is not a prerequisite of obtaining such an order in the first place.[78]On 25 July 2023, Mr Riches sent his grievance outcome letter (P.325-326); along with the “Investigation Report and Appendix” (P.327-336) to Mr Radcliffe. The following are excerpts from the letter:- “I can confirm that your grievance has not been upheld as it has been determined that there is not sufficient evidence to support the allegation that the company is responsible for obstructing a medical process from taking place. My investigation highlighted that the company did not cancel the support of OH nor did they fail to co-operate with OH and rather they were trying to find a solution whilst utilising internal subject matter experts. However, the investigation did highlight confusion of communication between the parties particularly surrounding the specific scope of work which would be required to be undertaken by the OH and therefore aspects that may have been considered and actioned for the benefit for your health were not duly considered nor discussed. I also did not find any evidence that would preclude the continuation of the report. My recommendation is therefore that a reasonable approach should be considered to progress with the support of OH for example: 1) OH to discuss workplace visit criteria with CHC and provide scope. 2) OH to be permitted to conduct the workplace visit with the employee and a CHC representative attending. 3) Scope of the workplace visit to remove vibration at this time. The investigator strongly recommends that CHC consults with a suitably qualified company to conduct a company whole body vibration analysis. 4) Recommendations from OH regarding employee to be discussed with CHC Flight Operations supervisory/management teams, with HR guidance as required to assess implementation…………………………… I would like to remind you of your contractual obligations to confidentiality and as such you are not to communicate to anyone or by any media, internally or externally, in relation to this issue.”[79]Mr Radcliffe disputed the outcome. So far as the Investigation Report was concerned he disputed that, “vibration data was subsequently provided to OH”. However, he agreed that there was no data for “whole body vibration in the cockpit” only “Vibration data based on maintenance equipment”.[80]On 25 July 2023, Mr Radcliffe was invited to attend a Disciplinary Hearing to be chaired by David Barron, Senior Manager, Continuing Airworthiness (P.349-350). The allegations were as follows:- “ Using your mobile phone on a number of occasions to film during routine flight operations and share the content of the videos on social media, one of which was filmed during the approach and landing phase of the flight to an offshore platform which is a safety critical stage of flying. Failing to execute your responsibilities of your role as Commander as detailed within the OMA, 1.4.2. ‘Responsibilities of the Commander’. Failing to comply with company procedures, namely OMA 8.3.17.4.5 ‘Sterile cockpit procedures during critical phases of flight’ and OMA 8.3.16.3 ‘Portable electronic devices (PED)’ as well as disregarding the email from the Chief Pilot on 20th May 2023. Potentially compromising flight safety while on a Commercial Air Transport (CAT) flight with passengers in the aircraft.”[81]Mr Radcliffe replied by email on 27 July 2023 (P.380-381):- “ You appear to have now added reference to a ‘number of occasions’ of filming and posting on social media – which appears to exceed the scope of the initial investigation? You appear to have now added ‘Potentially comprising flight safety on a commercial air transport flight with passengers in the aircraft’, which I didn’t note as a finding’ in the report? I suppose my concern is that this is a ever-growing series of allegations, which feels like CHC is working hard to come up with as many new ‘angles’ as possible with respect to what is in reality a very simple matter. My understanding is that the purpose of this process is to make CHC a better, safer company. Like many other Pilots I have taken images in the cockpit and have made a mistake as to when I did it – because it breached OMA with respect to 1.4.2(o). Given that Pilots are breaching this every single time they enter data into the I-Pad whilst taxiing, drink their coffee at the wrong moment, talk about non-essential things at the hold-point or use their phones to send/receive messages from the aircraft (per the CP’s email) and NONE of them have been dealt with via a two-month suspension and disciplinary process – I’m growing increasingly concerned as to the motivation behind this process.”[82]On 25 July, Mr Radcliffe sent a further email to Kirsty Ion to request a “whole body vibration risk assessment” mandated by section 5 of “The Control of Vibration at Work Regulations 2005” (P.337-338).[83]On the same date, he sent an email to Peter Legradi and Lesley Sim to ask whether there was a “risk assessment in place for Whole Body Vibrations in Pilots” (P.346).[84]On the following day, Lesley Sim sent an email to Mark Brosnan and Peter Legradi regarding Mr Radcliffe’s enquiry (P.347).[85]Mr Radcliffe requested a postponement of the disciplinary hearing (P.360) to afford him “adequate time to prepare” (P.360); it was rescheduled for 15 August 2023 (P.380).[86]On 1 August 2023, Mr Radcliffe sent an email to Imran Hayat VC to raise “serious concerns regarding the Sikorski 92 aircraft” (P.376). However, he was unaware that Mr Hyat had “left the business” (P.375). His email was acknowledged by Amanda D Constancio (P.375).[87]On 1 August, Mr Radcliffe sent an email to Ms Ion in which he asked “who would be responsible for compiling risk assessments with respect to vibrations in aircraft?”. He also expressed his concern regarding the impartiality of Mark Brosnan as investigator (the investigation report having been sent to Mr Radcliffe on 13 July 2023) (P.308-319). Claimant’s statement[88]On 14 August 2023, prior to the disciplinary hearing, Mr Radcliffe submitted a statement, with evidence in the form of “a selection of social media posts and photographs, ‘showing CHC Pilots engaging in similar behaviour as me’” (P.361-374).[89]In his statement he referred to CHC’s Disciplinary Policy (P.351-359).[90]The following are excerpts from Mr Radcliffe’s statement:- “The subsequent MRI scans ordered by my AME revealed de-generation which according to the consulting specialist ‘literally involves half of the L4 and L5 vertebral bones’. Medical advice was that this could have been caused by, or at least could be worsened by my job as a helicopter Pilot – and that an occupational health specialist should be engaged to assess whether it was wise for me to continue. This came as a significant cause of stress for me as I’ve spent almost 15 years building my career, as well as a huge sum of money training and developing my skills and experience. I don’t have any other significant experience outside the helicopter industry, so a new career would likely result in significant negative changes to my family, our lifestyle, and our home. My only hope was that an occupational health specialist might help me find a way of making reasonable adjustments to continue. Though it is not my intent to ‘point fingers’, my stress was greatly magnified by CHC’s subsequent refusal to co-operate in allowing full occupational health investigation to take place, which was intended to focus on my own individual health in relation to the S-92. This came despite several medical professionals (including my AME) recommending the investigation go ahead, which would include risk assessing the effects of my spinal condition in relation to levels of whole-body vibration, as well as assessing whether other aircraft would be more suitable for me………………………………………………………………………………… Having given a decade of my life to CHC I felt like they just didn’t care about me and that the company were more interested in protecting their aircraft than the Pilots who operate them……………………………………………………… I made a genuinely innocent decision to try and document my job for my children to better understand who their father ‘used to be’. Due diligence process - prior to filming I’ve seen lots of CHC Pilots filming or taking pictures over the years, some examples of which I attached as Appendix 1. As can be seen, this includes during ‘critical phases’ which has never resulted in disciplinary action being taken against a Pilot – despite at least one of the attached images having been published in full view of the current chief Pilot…… ……………………… Unfortunately, CHC did not appear to have a policy with respect to filming in the cockpit, so I thought it was down to me to check the relevant areas of policy, which did exist. I acknowledge that I made a mistake by failing to find the few lines with respect to OMA 1.4.2(o) albeit I described the due diligence process I went through as follows………………………………………………………………….. I deeply regret my decision to film, it was my honestly held belief that safety was not compromised by what I wanted to do. With respect to alleged breaches of the company’s social media policy – I must confess that, in the absence of suitable training being provided and/or without it being available on the company I-Pads issued to Pilots, I wasn’t aware one existed. This seemed to be re-enforced by the company culture, which genuinely appears to support what I now realise are non-compliant social media posts with a degree of regularity. By example, during 2022 I made at least 6 posts featuring CHC on my LinkedIn page, which included several that ‘CHC Helicopter’ was directly tagged in to. I attach some of these as Appendix 2………………………….. One such post even shows the aircraft to be on the ground with its rotors at ‘flight settings’, which I now realise breaches OMA 1.4.2(o) in that it showed ‘un-necessary activity during a critical phase of flight’. It certainly showed the identity of a customer. Far from being met with corrective action, this post was even liked by senior policy makers such as the ‘Operations Director’, ‘Manager for Crew Training’, several training Captains and even the VP for International Standards……. Filming Though I was motivated by the unfortunate events with respect to my medical investigation and a subsequent belief that it could have been my last week flying, it was neither a deliberate nor willful breach however. To that end, I had hoped the company would deal with this matter via a ‘coaching moment’ as per my understanding of CHC’s Just Culture Flowchart (P.1035 and 1068)………………………………………………………………….. Confusingly, what did occur was that on the 21st May, the Deputy Chief Pilot, having reviewed the video made on 19 May, which showed a fellow qualified Captain allowing himself to be filmed during critical phases – openly ‘liked’ the footage. I attach evidence as Appendix 3 (P.374). Given that the Deputy Chief Pilot’s job includes ‘Deputising’ for the Chief Pilot when he is not around, and that the Chief’s role includes ensuring company policy is complied with – I believe the Deputy Chief was suitably qualified and duty bound to intervene if he believed breaches to company policy and/or flight safety were made. I therefore took his ‘like’ as confirmation that I was right in my belief that no rules were being breached, and that it was ok for me to continue so long as I was on ‘safe mode’ and not sending or receiving messages. At the time of writing this statement I note that the Chief Pilot of another CHC base has just released footage of CHC aircraft, which appears to make the same types of violations I’m accused of. There does therefore seem to be a system problem/confusion within the company.” Disciplinary Hearing on 15 August 2023[91]The hearing was convened by David Barron, Senior Manager, Continuing Airworthiness. Also in attendance were Mr Radcliffe, Tony Clark, his Union Representative, and Kirsty Ion, HR Advisor.[92]Minutes of the hearing were produced but these were revised by Mr Radcliffe (P.397-406). As we understood it, his revisals were not disputed. In any event, as we recorded above, Mr Radcliffe presented as a credible and reliable witness. He explained his position in writing and orally in an articulate and precise manner and we were satisfied that his revisals were accurate . The following are excerpts:- “MR advised as stated in his statement he has 16 images of similar situations being posted on social media and asked if DB wanted to see them. TC advised that MR should be more than capable to assess and see how people are and understand when they are stressed……………………………………. MR stated that he’d not have considered it when flying in difficult conditions, or if he’d been clearly aware there was a violation being committed……. MR referred to the other images that he had and said others had done it before and made the same mistake therefore he felt there was a misunderstanding on a wider scale. MR stated that he wanted to work at the policy. MR asked if they wanted to see the images of other Pilots taking images at critical phases.”[93]However, as Mr Radcliffe put it, “Kirsty (Ion) recoiled and said she didn’t want to see these, but I reassured her that they were anonymised.”[94]The following are further excerpts from the minutes of the Disciplinary Hearing (P.401-406):- “3. Did you read the email from the Chief Pilot on 20 May? (P.238) MR advised that he had now read it but it was sent out on a Saturday and until recently he had been a single parent and spent the weekends with his family so he didn’t pick up the email on that day. DB asked him to confirm that his feeling of the email was that it did not specifically state reference to this type of incident. MR stated that to him it didn’t address the issue and the company said they were concerned on MR flying but company were aware of the issues for 5 days before the second video was made and he had seen he Chief Pilot a number of times during this time, during which time nothing was said. KI asked for clarity in terms of the timelines of the videos being posted. MR advised the first video was on the 19 May 2023 and the email from the Chief Pilot went out on 20 May 2023, but that the Deputy Chief Pilot liked the video on 21 May 2023. KI stated that the first video didn’t contain footage of critical phases. MR clarified that there were two incidences which were filmed at critical stages. The 1st was on 19 May 2023 and the 2nd one was when he was then suspended which was the one he was flying with GL. KI asked MR to confirm who he was flying with on the first occasion. MR confirmed that it was Stefano Massini (SM). It was clarified that there was a video posted inbetween these two which was during a ground run which was with Kian Bywater-Brenna (KB)………………………………………………………… 8. Do you have any comments on the report? MR advised they had already been made via email and he didn’t want to bring DB into that. DB advised that he has read the statement from MR and would take this into consideration. MR asked for confirmation on why KI did not wish to view the images of other Pilots committing similar violations. KI stated that she did not wish to view the images in-case she became aware of the identity of the other Pilots. MR advised that he had already redacted the identities of the Pilots. DB agreed to see the images. MR shared the images with DB. KI asked if the posts were all from Pilots employed in the UK. MR confirmed they were all from Aberdeen. KI asked if this included the ‘Chief Pilot’. MR commented that he was from Norwich. TC advised they were not hiding from the incident, but this showed the policy is not clear. TC explained what he felt a ‘critical stage’ to be. MR advised that fundamentally it was a critical stage because the company say it is. DB asked MR if he had anything else he wished to say before he makes a decision or if there were any other mitigating circumstances that he should be aware of. MR advised that his closing comment was that he wanted fairness and to be treated the same as everyone else had done before and even since his incident people are still doing it. DB asked MR if these examples were recent. MR confirmed. TC advised they were not wanting to drop others in it but the mission was that there needs to be a review of the sterile cockpit procedures to tidy it up which would address these issues.” Disciplinary outcome letter[95]On 24 August 2023, Mr Barron sent his disciplinary outcome letter to Mr Radcliffe (P.415-417).[96]He determined that Mr Radcliffe should be issued with a first written warning; that from 1 September 2023, he would be “temporarily demoted from Captain to Co-Pilot with the corresponding pay decrease”; and that his suspension should be lifted.[97]The following are excerpts from his letter:- “I also want to acknowledge that you refer to a number of images which at a glance look like they could have been taken during critical phases of a flight. Whilst I am unable to comment on whether or not this was the case without a full investigation, I would like to reassure you that the company take reports of infringements of the OMA and company policies very seriously and will investigate reported events in future. If you are aware of any violations to company policies and procedures, I encourage you to raise your concerns through appropriate channels. It is due to these reasons I decided not to issue you a Final Written Warning, or consider this to be gross misconduct. However, ultimately you still failed to execute your duties as a Commander. In addition due to the severity of the violation in question, it is my view that the below additional sanctions are implemented as a consequence of your serious misconduct: You will be temporarily demoted from Captain to Co-Pilot with a corresponding pay decreased (sic) to the maximum point of the FFO salary scale with effect from Friday 1 September 2023. You will not return to flying duties until: You have completed line training sorties (the number of which is to be agreed by the MCT and STC) and passed a line check. You have completed a formal interview with MFO UK (Peter Legradi). You will not be eligible for command again until: You have received two recommendations for Command. You have completed and passed all other training requirements in order to regain Command status. You have completed a formal interview with the MF UK to clear you as a Commander.”[98]As it transpired, Mr Radcliffe never returned to work for CHC.[99]On receipt of the outcome letter ,Mr Radcliffe sent an email to Mr Barron (P.418-419). The following are excerpts:- “My first thought is that exiting me from my contract as a Captain when there are many others out there doing exactly the same thing as me without action seems both unfair and also tactical, given that there’s every reason to suspect I may need to leave on medical grounds if my condition worsens or is untenable and hence my need to claim my loss-off-licence insurance. Otherwise, it’s unclear as to why the company needs to strip me of my income in order to ensure I don’t use my phone again in the cockpit. It also feels inappropriate that the MFO should gatekeep my return to rank when he’s been so heavily implicated in this process, and I would also appreciate clarity as to where I’ll be financially when I do return to my role as Captain please?”[100]Mr Radcliffe went on in his email to address the terms of the OMA and said this:- “My violation was with respect to 1.4.2(o) and would have been once only had the company intervened properly. Instead, even the Deputy Chief’s first response was to support it – presumably because like me and Tony, he wasn’t aware either. Per the Just Culture concept, I wasn’t aware I was doing wrong and therefore should not be punished here – but rather coached and supported. It all just feels like the company is scrabbling (sic) to find technicalities to hurt me with David rather than looking at this in its totality – I’m a long serving and capable Captain who was being directed back to the S-92 against medical advice, was struggling with my physical health and, under a lot of pressure in a culture where taking personal images has long been accepted practice. I made a bad choice to try and document my life for the future which I’ll never do again. (Please see the attached excerpt from a recently retired Line Training Captain, who clearly confirms culture at CHC which extends long before I joined the company)” (P.421).[101]When Mr Barron gave evidence at the Tribunal hearing, it emerged that following the disciplinary hearing he “spoke with others” and in particular, John Daley and Jonathan Gash, two “very senior Pilots”. He said he asked them about their interpretation of OMA1.4.2(o) and he was told that “they’d expect nothing to be going on (in the cockpit) apart from monitoring the flight. They said it was not acceptable to be holding something.” Mr Barron also said in evidence that he carried out further “interviews” with Marco Massarini and Kieran Bywater-Brennan but these were never revealed to Mr Radcliffe. He also took guidance from HR, specifically Kirsty Ion. However, he said that he made the decision. Disciplinary outcome meeting on 25 August 2023[102]Mr Barron convened a disciplinary outcome meeting with Mr Radcliffe on 25 August 2023. Kirsty Ion was also in attendance. Minutes of the meeting were produced (P.411-414). The following are excerpts:- MR was asked if he had anything he wished to say in response to the decision. MR advised that the question that came to mind was whether the financial sanction was fair due to the disparity on the lack of sanctions against others involved in the events. DB clarified as part of the decision-making he reviewed sanctions which had taken place previously within the company for similar levels of misconduct. MR advised there was an investigation around 10 years ago where a Pilot was going at 150 knots over Bennachie which wasn’t illegal but wasn’t best practice and this linked to flight safety but then the decision was it wasn’t illegal and the Pilot mentioned did not receive a demotion. MR advised there were also the 16 images which he mentioned during the disciplinary hearing which were mostly taken by Captains and they were posted on social media in view of senior management. MR stated there was no way these were not seen by management and therefore he did not feel he was being treated in the same way. MR stated that there was also the individuals that were in the cockpit with him at the time of filming, one of which could be seen to be smiling on the video and had no more than a word from the MFO on this. DB advised he couldn’t comment on the incident that happened 10 years ago. MR advised that there was no action taken despite this being a Commander and they didn’t even meet the requirements for a Co-Pilot role. MR continued that his concern on this looking holistically was that he may need to claim loss of licence which will be impacted by the financial implications of this sanction. MR advised he felt this was very disproportionate. KI clarified that MR had the opportunity to appeal if he felt this was the case. MR acknowledged this but wanted to finish advising of his comments and explained there were many other individuals that had accidentally done something and as Tony Clarke (TC) had advised in the hearing, not everyone was aware that 1.4.2(o) exists because there are so many pages within the OMA. MR stated that it is the company’s decision that he is not fit for duties of a Commander yet even his last LPC was helping the MFO during the check. MR advised he missed a word from 1.4.2(o) and had been stripped about £40,000-£50,000 a year for this and it did not feel right. MR stated he believed that it was heavily punitive”. Appeal[103]On 28 August 2023, Mr Radcliffe intimated that he wished to appeal against the outcome of the disciplinary process. His appeal letter was lengthy (P.423- 429). The following are brief excerpts:- “I am doing this on the grounds that I believe I have been singled out, that I am being un-necessarily punished in an excessive and aggressive manner, and that I am being discriminated against because of my disability and because I have raised health and safety concerns about the vibrations in the S-92 and the lack of health monitoring and risk assessment…………………. The one clear mistake I have made is that, in the absence of a clear policy on ‘filming in the cockpit’ I failed to recall two lines pertaining to OMA 1.4.2(o) in manuals spanning many thousands of pages. This is a reasonable mistake to make by anyone’s standards, as has been articulated to me in writing since by training Captains per a text sent to me by a long-serving and highly capable line trainer (P.421) ‘we are all guilty of breaching OMA 1.4.2(o) at some point.”[104]Mr Radcliffe alleged that the company had “double standards” as, “a short time spent searching my colleague’s social media profiles has revealed more than twenty images of fellow CHC Pilots (mostly Captains) who have taken images at critical phases of flight and posted them to social media……. To say they have been made in full view of the company is an understatement. All of these Pilots are ‘friends’ with at least one CHC manager and one Pilot has even set the violating image as his profile picture………………………………………………………………………………. A demotion is considered an alternative to a dismissal, yet here the company has not even seen fit to issue a final written warning. A first written warning should be the maximum sanction in these circumstances and to that end I am not contesting it. Clearly, there is no need for demotion as well. Within my disciplinary hearing on 15/08/2023 I offered to show evidence of further CHC Pilots taking images at critical phases to Kirsty Ion. Kirsty refused on the grounds she ‘may learn their identities’ (and therefore must discipline them all)………………………………………………………………… Equally, the company has clearly no concerns with respect to my abilities as an aircraft commander or it would not have let me continue in this role unchallenged, allowing me to sign out aircraft and take passengers offshore a further five times, despite being aware of my first video. This is an important fact…………………………………………………………………………………… Under protest I will work as a co-Pilot if I must, however it’s clearly excessive to impact our ability to pay our mortgage, nursery fees and to impact our quality of life at home.[105]In his email with which he submitted his grounds of appeal, Mr Radcliffe said this (P.430-431):- “I propose that the demotion be for a period of two weeks and deemed already spent during my unnecessary period of suspension. I further propose that I return to command immediately without further gatekeeping. My suspension was not a neutral act. It was punitive and unnecessary as my present work has no impact whatsoever on the investigation process. I was suspended on an allegation and I immediately gave an undertaking that the conduct would not be repeated. My suspension was at no time reviewed and instead you continued until the outcome of the disciplinary without reasonable and proper cause. It was itself a disciplinary sanction, a stigma, by which you sought to cast doubt over my competence as a commander despite my unblemished record over 10 years. Given the obvious violations by others, which you have failed to investigate, I believe that CHC has sought to find me guilty using irrelevant evidence from the OMA manuals, to confirm my guilt, but failing to focus on the evidence to exculpate me.”[106]At the same time, Mr Radcliffe sent Kirsty Ion and others a copy of an email, “where the company actually asked Pilots to take pictures whilst in close proximity to oil rigs” (P.430 and P.432).[107]He also emailed Ms Ion regarding a return to work (P.433).[108]On 28 August 2023, John Hopkinson, VP – Safety, Compliance and Flight Standards, responded to Mr Radcliffe’s email to Imran Hayat (of 1 August 2023) (P.435-437), enclosing a statement of compliance with The Control of Vibration at Work Regulations 2005 (P.434).[109]On 4 September 2023, Mr Radcliffe sent an email to Marco Massarini, Peter Legradi and Kirsty Ion expressing an interest in joining the H175 fleet (P.440). His application was acknowledged by Marco Massarini on 6 September 2023 (P.446).[110]On 14 September 2023, Kirsty Ion sent an email to Mr Radcliffe (P.448):- “As an update, we are still to receive the report from Paul Dickens (Psychologist) and I believe he is now on annual leave but he advised there is no reason for you not to be able to return to flying duties from his side which I am pleased to hear. However, as you are aware the company has a duty of care to you and given the correspondence between yourself and the company over the past few months, I think we need to get a fuller understanding of your back condition prior to you returning to flying duties.”[111]She also advised him that his application for the H175 had been put on hold.[112]Mr Radcliffe replied shortly thereafter (P.447-448). Whole Body Vibrations (“WBV”)[113]On 5 September 2023, John Hopkinson, VP Safety, Compliance & Flight Standards sent an email to Peter Legradi (P.1038) with a Risk Assessment Form (P.1039-1044); and “an HSE, ‘Advice for Employers on the Control of Vibration at Work Regulations 2005’ (P.1045-1054).[114]On 18 September 2023, Mr Radcliffe had correspondence with Mr Hopkinson concerning WBV (P.456-455).[115]On 22 September 2023, Mr Radcliffe sent an email to Ms Ion about her request for an OH Assessment (P.450). The following are excerpts :- “I admit to being left scratching my head over this one. Primarily this is due to uncertainty around what new information you think I’ve brought to the table recently, which wasn’t already provided Raza Hyder at OHIS from the outset as well as to my AME – who still maintains I’m fit to hold a class 1 medical. Dr. Hyder has seen all these papers already – and his conclusion was that we needed to assess my working environment to help determine the cause of my back issues and what reasonable adjustments could be made. Outcomes could have included moving me to a smoother aircraft – something which you’ve somewhat ironically just halted in the name of this medical conundrum. You have also previously relied on the fact that my AME opinion supersedes OCC health and advice, though you’ve ignored my AME’s opinion that CHC should comply with providing accurate WBV data and allow Dr. Hyder into visit me in the workplace (P.231). It’s just utterly bizarre…………………………………………………………… I find this rather unsettling Kirsty and it has cost me all confidence in CHC and the relationship you have with OHIS. To that end, I’m happy to engage in another OCC health process if that’s something you feel necessary – however I will need to select the provider and I’ll pay for the service myself in order to ensure it is an undisputably fair and unbiased process.” Appeal Hearing on 22 September 2023[116]The Appeal Hearing was chaired by Harm Bos, Operations Director & Accountable Manager UK. It was also attended by Mr Radcliffe, Andrew Marson, as his Union Representative, and Lesley Sim, HR Director.[117]Notes of the Hearing were produced (P.458-460). The following are “MR: Three key points to raise, outcome of process found that the violation made in May was quoted a severe outcome. Three key questions to raise are one, If severe enough to warrant demotion and four months suspension, why when company discover violation on 19 May, was I allowed to fly 5 further times as an aircraft commander with no intervention. And can add company support in Deputy Chief Pilot liking the video…….. ………………………….. MR: It was Craig (Craig Bissett, Deputy Chief Pilot)…………………………. Second key point, companies approach to knowing other individuals identities seems at odds with the outcome that this is severe, and companies strong response to this. Companies know how to find evidence of individual’s making the same mistake and that the company isn’t looking contradicts that this is serious and severe. Third point, last summer the Chief Pilot instructed people to make the same violation and send them images of Forties Oil Field close up, why sanctioned last summer but now seen as severe. (P.432)…. MR: At last meeting with Kirsty (Kirsty Ion), HR and Dave (Dave Barron, Investigation Manager) asked if they wanted to see images of other violations and they said no. When asked why not, they replied they might learn individuals identities. Came from HR representative, not what minutes said but previous representative (Tony Clark) remembers differently, but clear to me HR was saying no. LS: Can I clarify did you share the images with Dave (Dave Barron), Investigation Manager)? MR: Sixteen images of other Pilots taking photos at critical moments, posted on social media, some very recent and since the violation, asked if Dave would like to see them and Kirsty said no. Names redacted to show it was a systemic issue. Dave commented along the lines ‘I see your point, these are a lot worse’. If what is done is so severe, why have others not been investigated? Believe company having a clear policy like what other companies have would help.” Appeal Outcome[118]On 27 September, Mr Bos wrote to Mr Radcliffe with the disciplinary appeal outcome (P.465-467). As Mr Radcliffe had advised that he was prepared to accept the formal first written warning, Mr Bos confirmed that would “remain on your file for 12 months from the date of the original letter.” He then went on to say this:- “1) The First Written Warning will be upheld 2) Demotion to SFO will be upheld, however given the nature which revolves mainly around non-technical skills, you will remain on Captain’s salary, as per your current pay scale, for the period from the 1st of September and the next 12 months or until such time where you can have reasonably done 2 simulator sessions to gain a positive command recommendation and pass a Command Line Check and MFO interview. 3) If you fail to gain Command after this period, remuneration will revert to highest SFO scale. 4) If in this period you should need to make a claim (sic) through your loss of license insurance cover the Captain’s pay scale will apply”.[119]We are bound to say that we found the evidence of Mr Bos unconvincing and inconsistent. Initially, he said that that no one had told him about CHC’s concerns were they to allow the investigation requested by Mr Radcliffe and OH. However, he then said that Lesley Sim had expressed her concerns “just before the Appeal Hearing”. This completely contradicted the evidence we heard from Ms Sim. She said that she did not explain the concerns which CHC had: ”I don’t believe I did as the Appeal was a different process”. Mr Bos also expressed his own personal view/interpretation of critical phase: “in my view take off and landing is the most critical phase”..[120]Mr Radcliffe responded to Mr Bos on the outcome of the Appeal by email on 28 September 2023 (P.468-469). The following are excerpts: “My understanding of your letter is that you feel I should be punished in response to me not taking accountability for my actions. I very much agree that personal accountability is one of the “non-technical skills”, which should be demonstrated in effective leaders – which is why I raised the topic in our meeting last week, and why I accept the written warning for a clear violation against OMA 1.4.2(o). In the spirit, it feels somewhat myopic that CHC managers are not holding yourselves accountable in the same manner.” In our unanimous view Mr Radcliffe’s assertions were well founded. Employment Tribunal Claim/Interim Relief[121]An Interim Relief Judgment was issued by Judge Hendry on 19 October 2023 (P.42-50). Subsequently, the respondent’s applications for a reconsideration of the Judgment have been refused. The originating claim form (Case No. 4105373/2023) was submitted on 7 September 2023 (P.14-25); the “second claim” (4107204/2023) was submitted on 5 December 2023 (P.57-71); and a third claim (8001173/2025) was submitted on 11 May 2025 (P. 2/1-18). The three cases were combined. Return to work[122]On 26 November 2024, Peter Legardi emailed Mr Radcliffe regarding a possible return to work on the H175; and he sent a reminder on 5 December 2024 (P.2/37). However, Mr Radcliffe maintained that he did not see either of these emails. He was a credible and reliable witness and we believed him.[123]On 22 December 2024, the respondent’s solicitor wrote to Mr Radcliffe, copied to his solicitor, with a request to respond to Mr Legradi’s emails (P.2/39).[124]On 31 January 2025, Mr Legradi wrote to Mr Radcliffe with an invitation to attend a meeting on 13 February 2025 to discuss, “arrangements for a return to work (depending on your current fitness for work)” (P.2/41).[125]Mr Legradi went on in his letter to say this:- “Please note that if we do not receive any response from you by Friday 7 February 2025 we will treat your absence from work as unauthorised. We are aware that there are Orders for Interim Relief in place (in respect of your employment as a Pilot), you remain employed by us as a Co-Pilot and you could be rostered to work on that basis. We therefore require you to engage with questions relating to your current fitness to work and ability to report for duty.”[126]On 12 February 2025, Mr Radcliffe’s solicitor sent an email to the respondent’s solicitor in the following terms (P.2/46-47):- “My client no longer has an ongoing relationship with your client, other than the terms of the Continuation of Contract Order. The order is for the purpose of salary and benefits only. My client did not receive the email correspondence in November or December, as he is no longer accesses his work emails (sic). Until now, your client has not been in contact with my client since the appeal outcome letter of 27 September 2023, some 16 months ago. Further, he received no response to his email to Kirsty Ion on 22 September 2023. CHC failed to progress a return to work following the removal of his suspension in August 2023 and no steps were taken by CHC to arrange line training sorties, pass a line check or complete a formal interview with the MFO following the disciplinary outcome in August 2023. Furthermore CHC has since allowed all his certifications to lapse and did not keep them current. In addition, no steps were taken to enable my client to understand the extent of vibrations he can be exposed to without further spinal problems. For your information his class 1 medical continues to be valid. These failures are a breach of the implied term of mutual trust and confidence. If CHC consider our client to be employed as a co-pilot, despite the repudiation of such a contract, there being no offer of work for 17 months and therefore no acceptance by our client, inviting my client to a capability meeting is the last straw. For the avoidance of doubt, he is accepting these repudiatory breaches today, and is no longer an employee of CHC in any capacity. He will not therefore be attending any meetings with CHC.”[127]The respondent’s solicitor replied by email on 17 February in which she disputed that Mr Radcliffe had been “invited to a ‘Capability Meeting’” (P.2/46).[128]On 28 February 2025, Lesley Sim (HR Director) wrote to Mr Radcliffe by way of “Acknowledgment of resignation” (P.2/53).[129]She wrote again on 24 March 2025, concerning the return of company property (P.2/54); on 31 March 2025, Mr Radcliffe confirmed the return of his company property (P.2/56). Claimant’s submissions[130]Counsel made written submissions running to 120 pages; he also submitted written comments on the respondent’s submissions. These are referred to for their terms. The following is a brief summary.[131]Counsel confirmed that the complaints being advanced were those of automatic unfair dismissal, by way of making protected disclosures, in terms of s.103A of the Employment Rights Act 1996 (“the 1996 Act”); “ordinary” unfair dismissal, in terms of s.94 and 98 of the 1996 Act; and whistleblowing detriments, in terms of s.47B(1) of the 1996 Act. In the alternative, were the Tribunal to find that, “there was no dismissal from the contract of Aircraft Commander and Captain in the sense described by Hogg v. Dover College [1990] ICR 39”, Counsel submitted that the claimant was unfairly constructively dismissed: that there was a constructive dismissal that was automatically unfair in terms of s.103A of the 1996 Act; and that there was a constructive dismissal which was also unfair, in the ordinary sense, under s.s.94 and 98 of the 1996 Act.[132]In the “First Chapter”, Counsel made submissions on the facts.[133]His primary position was that the claimant was dismissed from his contract of employment on 31 August 2023 when he was demoted from Captain to a CoPilot, in the context of a disciplinary procedure. Counsel submitted that this was a dismissal, “of the kind identified in the case of Hogg.”[134]His alternative position was that if he was not dismissed on 31 August 2023, he created a dismissal by resigning in response to the respondent’s repudiatory breach of contract, by the email of 12 February 2025 from his solicitor (P.46-47).[135]Counsel then narrated details of the back pain which the claimant developed from around July 2021, the treatment which he received and the certifications concerning his fitness and unfitness to fly by the AME, Dr. McIntosh.[136]Counsel submitted that the claimant had made a number of disclosures which qualified for protection in terms of s.43B of the 1996 Act with alleged detriments because he had made these disclosures. A total of 17 protected disclosures, along with a total of 26 detriments were advanced.[137]In the “Second Chapter” Counsel made submissions on the witnesses and their evidence.[138]In the “Third Chapter” Counsel made submissions “as to the law and its application to the facts”. Respondent’s submissions[139]Counsel for the respondent also made written submissions, comprising 41 pages. These are referred to for their terms. The following is a brief summary.[140]Counsel disputed that the claimant was dismissed by way of the disciplinary action.[141]However, in the alternative, if he was dismissed it was submitted that, “he was immediately re-engaged as a co-Pilot. This was previously common ground between the parties (as detailed in the submissions below), but the claimant’s position is now that the demotion had the effect of completely severing his relationship with the respondent. The respondent maintains the claimant was not dismissed but temporarily demoted without loss of pay. He did not suffer any detriment because he made protected disclosures, and he was not constructively dismissed when he resigned on 12 February 2025.”[142]Counsel commented first on the evidence and the facts.[143]He then referred to the Agreed List of Issues, “a substantial document which will form the basis for submissions by both parties.”[144]He suggested there were two preliminary matters: time-bar and whether the claimant was dismissed by demotion. Time-bar[145]Counsel referred to s.48 of the 1996 Act, in terms of which, an employee may present a complaint to an Employment Tribunal, that he has been subjected to a detriment, on the ground that he made a protected disclosure.[146]Counsel submitted that each of the alleged causes of action were, “on the face of it, out of time.”[147]He further submitted that as these were all separate and distinct acts or omissions they were not part of a “continuing act”, as described in s.48(4) of the Employment Rights Act 1996.[148]Finally, in this regard he submitted: - “Given that the first claim in these proceedings was made on 7 September 2023, it appears entirely reasonable that the claimant could have set out these causes of action much earlier than he did. It is thus self-evident that s.48(3)(b) of the Act (not reasonably practicable for the complaint to be presented) does not engage. The claimant has offered no explanation in his evidence as to why these claims were not presented timeously.” Dismissal[149]This was the second preliminary matter raised by Counsel in his submissions.[150]He submitted that the facts in the present case, “differ substantially from those in Hogg” as there was not a “fundamental change to the terms of the contract of employment. It was a permitted and accepted disciplinary action. The claim based upon dismissal of the claimant as a result of the discipline decision and appeal should thus be struck out. Claims of detriment, of course, will remain”.[151]Counsel further submitted that if the Tribunal agreed that the disciplinary action did not amount to a dismissal, then the claimant remained employed in terms of his contract of employment.[152]In the alternative, if the Tribunal did not agree, “then, as set out in the claimant’s pleadings at paper apart of the second claim (P.72, section 1) the claimant was re-engaged as a Co-Pilot effective 1 September 2023. Interim relief was not awarded until 19 October 2023, but the claimant accepted wages from September 2023 after he had been demoted. This amounts to an affirmation of contract…………………………………………… In my submission, the claimant remained an employee of the respondent until the respondent received an email from his solicitor dated 12 February 2025” (P.2/46-47). Constructive unfair dismissal[153]In the event that the claimant remained employed until 12 February 2024 Counsel disputed that he was constructively and unfairly dismissed on that date. It was submitted, with reference to Buckland v. Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, that the claimant affirmed the contract.[154]He further submitted that “on an ordinary reading of the letter dated 31 January 2025 (P.41-42) it is clear that the claimant was not being invited to a capability meeting…..an entirely innocuous act on the part of the employer cannot be a final straw, and the test of whether the employee’s trust and confidence has been undermined is objective (Waltham Forrest v. Omilaju [2004] EWCA Civ 1493. There is no reason why a genuine effort to return the claimant to work (on the aircraft that he has specifically requested training on) would contribute to a breach of contract by employer……… In these circumstances, I say the proper interpretation of events after 31 August 2023 is that the claimant remained employed until 12 February when, through his solicitor, he resigned from his employment. He did so because he did not want to return to working for the respondent, even when offered the option of training on the H175. The claimant’s decision that he did not wish to work for the respondents is entirely his own, and was an unreasonable response to an invitation to return to work.”[155]Counsel then went on in his submissions to address the “17 separate disclosures as set out in section 1.1 of the List of Issues”. He submitted that “none of these may properly be considered to be qualifying disclosures, and thus a protected disclosure, under the Act…………………………………….. The whole tenor of the claimant’s evidence to this Tribunal has been one of grievance about the respondent’s treatment of him. He has not sought in his evidence before the Tribunal to justify these alleged disclosures as being in the public interest”. Detriments[156]Counsel then went on in his submissions to address the “25 detriments which he claims are causally linked to the disclosures set out in section 1 of the Joint List of Issues.” Counsel submitted that: “as with the disclosures set out in section 1, these detriments are, in large part, repetitious. Many are denied in fact”. Discussion and Decision Unfair dismissal “Was the claimant dismissed on 31 August 2023 by reason of his demotion? (List of Issues (“LOI”) 2.1)”[157]We decided to address this issue first as it was a pivotal aspect in the case.[158]The onus was on Mr Radcliffe to show that he had been dismissed. His Counsel relied upon the principle established in Hogg v. Dover College, that a purported variation of a contract done unilaterally, can be such as to amount, in reality, to a termination of one contract and its replacement by another.[159]Whether the variation constitutes a dismissal is a matter of fact and degree. The greater the difference between terms and conditions before and after the variation, the more likely that there has been a dismissal.[160]The EAT in Hogg also held that the fact that an employment relationship continued with the same employer (as happened in the present case) does not mean that the whole contract has not been terminated.[161]On 24 August 2023, Mr Barron advised Mr Radcliffe that he had decided to issue him with a first written warning (P.415-417).[162]That would have been acceptable to Mr Radcliffe as he conceded that he was in breach of Operations Manual Part A ( “OMA”) section 1.4.2 (o) (P.1019), albeit that it was a somewhat obscure provision; he was unaware of the provision at the time he was filming and he did not believe he was doing anything wrong; and that what he did was a common and accepted practice among Pilots, including those at a more senior level.[163]It was the demotion which he did not accept was reasonable in all the circumstances and it was that aspect of the disciplinary outcome which his Counsel claimed constituted a dismissal. It was in the following terms (P.417):- “In addition, due to the severity of the violation in question, it is my view that the below additional sanctions are implemented as a consequence of your serious misconduct: You will be temporarily demoted from Captain to Co-Pilot with a corresponding pay decreased (sic) to the maximum point of the SFO salary scale with effect from Friday 1st September 2023. You will not return to flying duties until: o You have completed line training sorties (the number of which is to be agreed by the MCT and STC) and passed a line check. o You have completed a formal interview with the MFO UK (Peter Legradi). You will not be eligible for Command again until: o You have received two recommendations for Command. o You have completed and have passed all other training requirements in order to regain Command and status. o You have completed a formal interview with the MFO UK to clear you as a Commander.”[164]The demotion from Captain to Co-Pilot was in our view the most significant aspect by far. It was a material change in responsibilities and status. Mr Radcliffe’s role as Captain carried with it significant legal responsibilities and a certain status. He was ultimately responsible and had final authority for the safety and operation of the flight, including responsibility for the safety of crew and passengers.[165]The pay differential between Captain and Co-Pilot demonstrates there are different responsibilities and requirements of these roles and are clearly set out in a hierarchical structure.[166]In Mr Radcliffe’s particular circumstances, his demotion also carried with it an element of stigma. Mr Radcliffe had been a Captain for 5 years having worked his way up through the ranks. He was well known as such in the small clique of Pilots in Aberdeen.[167]Nor were we persuaded that the demotion was “temporary”. No timescale was given in Mr Barron’s letter. In our view, it was reasonable for Mr Radcliffe to believe that it could take up to 18 months and there was no guarantee that he would “pass” all the steps required. In fact, the disciplinary appeal outcome letter states: “ 3. If you fail to gain command after this period, remuneration will revert to the highest SFO scale” (P.466). This suggested to us that there was no guarantee Mr Radcliffe would be re-instated to Captain.[168]Further, his promotion back to the role of Captain was only at the behest of Peter Legradi. We heard evidence from Mr Legradi at the Tribunal Hearing. As Mr Radcliffe’s Counsel submitted, Mr Legradi endeavoured to be defensive of CHC at every turn and in cross-examination he was not prepared to make any concessions which might favour Mr Radcliffe. He was far from “neutral” and “objective” as CHC’s Counsel submitted.[169]As Mr Radcliffe’s Counsel submitted:- “For example he initially claimed in his evidence that he did not know whether the email found at P.238 dated 20 May 2023 (Mr Massarini’s ‘week’s update’) in which he cautioned against the use of mobile phones ‘airside and during the flight’ (P.240) was sent because the video of 19 May 2023 had been noticed but it was seen at the investigation report which he saw and considered as part of the ‘Joint Culture Review Group’.”[170]Further, the Tribunal sensed from Mr Legradi’s demeanour at the Tribunal Hearing that he was not favourably disposed to Mr Radcliffe, regarded him as something of an irritant, and that this had been the case for some time. For example, in April 2023 he was not prepared to countenance the proposal by OH to visit the CHC base to carry out a risk assessment. When Lesley Sim asked him about this on 26 April (P.220) he replied, curtly:- “My to (sic) cents If Mark is deemed fit to fly then he should be rostered to fly.”[171]Mr Radcliffe had reasonable concerns that his serious back problem was being caused by the vibration in the S-92 and understandably he wished to obtain expert advice before returning to fly. Mr Legradi seemed unsympathetic to the position in which Mr Radcliffe found himself.[172]Mr Radcliffe was understandably wary, therefore, as to if and when Mr Legradi would ever approve his promotion back to Captain.[173]For all these reasons, therefore, we arrived at the unanimous view that his contract as a Co-Pilot was fundamentally different from the terms of the contract he had enjoyed as a Captain. It was a new contract.[174]We were satisfied, therefore, that Mr Radcliffe was dismissed on 31 August 2023, by reason of his demotion. “Ordinary” unfair dismissal[175]Having decided that Mr Radcliffe was dismissed, s.98(1) of the 1996 Act requires the employer to show the reason for the dismissal and that it is an admissible reason, in terms of s.98(2), or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee.[176]CHC did not accept that Mr Radcliffe was dismissed. They failed, therefore, to show the reason for his dismissal as they were required to do. This rendered his dismissal unfair.[177]However, as Mr Radcliffe’s Counsel submitted, “This was not an express dismissal but rather a dismissal of the Hogg kind. It was nonetheless a dismissal and it came about as a result of R’s reaction to what they perceived to be the C’s misconduct”.[178]Even if we are in error, therefore, and conduct, an admissible reason, was the reason for Mr Radcliffe’s dismissal, the remaining question which we would have to determine, under s.98(4) of the 1996 Act, would be whether CHC had acted reasonably in treating that reason as a sufficient reason for dismissal and that question had to be determined in accordance with equity and the substantial merits of the case. Disciplinary procedure[179]The ACAS Code of Practice on Disciplinary and Grievance Procedures (2015) sets out the basic requirements for fairness that will be applicable in most conduct cases.[180]Further, in assessing whether the employer adopted a reasonable procedure, the Tribunal are required to use the range of reasonable responses test that applies to substantive unfair dismissal claims. As Lord Justice Mummery said in J Sainsbury Plc v. Hitt [2003] ICR 111, CA: - “The range of reasonable responses test (or to put it another way, the need to apply the objective standards of a reasonable employer) applies as much to the question of whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason.”[181]So far as the investigation of Mr Radcliffe’s alleged misconduct was concerned, not only did Mark Brosnan carry out the investigation, he also chaired the Just Culture Review Group (“the JCRG”) meeting on 5 July 2023 (P.1033-1035). The JCRG classified Mr Radcliffe’s conduct as “culpable behaviour” (P.1035) and recommended that there should be disciplinary procedures.[182]In our unanimous view, Mr Brosnan’s involvement in that way and lack of impartiality was not within the band of reasonable responses which a reasonable employer might have adopted.[183]Even Peter Legradi agreed, in evidence, that it would have been fairer for someone independent to have chaired the JCRG.[184]Further, the Investigation Report says this (P.310):- “Objective of the investigation The sole purpose of the investigation of an accident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability”.[185]However, that is exactly what CHC did.[186]Having regard to the nature of the allegations, the choice of Mr Barron, who was not a Pilot, to conduct the disciplinary hearing was surprising.[187]Earlier in these reasons we recorded our observations on Mr Radcliffe’s evidence and that we found him to be credible and reliable. We are bound to say that this was in marked contrast to the evidence which we heard from Mr Barron. Mr Barron’s evidence was not at all convincing. It was riddled with inconsistencies. He did not appear to be familiar with the documentation. He changed his position on more than one occasion. For example, he gave evidence that he was not aware of Mr Radcliffe’s health condition and the involvement of OH, but when he was referred to Mr Radcliffe’s statement, which he had received before the disciplinary hearing, he accepted that he was aware. He said initially in cross examination that he was not aware that OH had requested WBV data but later he changed his evidence and said that he was aware. In cross examination, he said at first that he was unaware that Mr Radcliffe had been off work from December 2022 to April 2023 with back pain and that OH had requested inspection of the aircraft along with vibration data. However, he had received a copy of the interview which was carried out by Mr Brosnan which records that information (P.271). When this was put to him in cross-examination he said “I must have misremembered that”. We were of the view that much of his evidence was neither credible nor reliable.[188]Further, Mr Barron chose not to watch the videos and further investigate the photographs which Mr Radcliffe had produced which appeared to demonstrate that other Pilots were taking videos during “the critical phase” of flights (P.883-931), apparently in breach of OMA 1.4.2(o) (P.1019). Indeed, some of these photographs had even been “liked” by many other Pilots on Facebook. These were not the actings of a reasonable employer.[189]Somewhat bizarrely, Ms Ion, HR Advisor, did not want to see the videos or to investigate the photographs Mr Radcliffe had available as they could identify the Pilots who had taken them. Indeed, at least one of these photographs taken at night on an approach to landing was clearly taken during a “critical phase” and the Pilot could readily have been identified (P.895). We concluded that Ms Ion chose not to investigate because if the Pilots were identified, in the interests of even-handedness at the way Mr Radcliffe had been treated, several investigations would be required which could well have led to disciplinary actions.[190]Mr Barron said in his outcome letter: “I also want to acknowledge that you referred to a number of images which at a glance looked like they could have been taken during critical phases of flight. Whilst I am unable to comment on whether or not this was the case without a full investigation, I would like to reassure you that the company take reports of infringements of the OMA and company policies very seriously and will investigate reported events in the future”. However, it was a significant aspect of Mr Radcliffe’s “defence” of the allegations that what he did was a common practice amongst the Pilots. In the interests of consistency of treatment alone, a reasonable employer would have paused the disciplinary proceedings and carried out a “full investigation” before deciding to dismiss Mr Radcliffe. Mr Barron’s failure to do so was not within the band of reasonable responses which a reasonable employer might have adopted.[191]Mr Barron also had discussions with two other training Captains (Daley and Gash) and according to CHC’s Counsel’s submissions, “ discussed the mechanism for demotion and what would be involved in re-gaining Command…He also asked them for their perspective on the relevant provisions of the OMA”. He also interviewed Marco Massarini and Kieran Byewater- Brennan. However, he did not share their views with Mr Radcliffe and get a response from him, before he decided to dismiss him, as a reasonable employer would have done. Indeed, we heard no evidence about what they told him.[192]Also, as we recorded above, the evidence of Mr Bos who conducted the Appeal was unconvincing and inconsistent. In our view he was not impartial. He was aware of CHC’s concerns.[193]In our unanimous view, the investigation and conduct of the disciplinary and appeal hearings were fundamentally flawed. They were not within the band of reasonable responses which a reasonable employer might have adopted and this rendered Mr Radcliffe’s dismissal procedurally unfair.[194]We were also of the view that Mr Radcliffe’s dismissal was substantively unfair. If Mr Radcliffe was dismissed by reason of his conduct, the remaining question which we would have had to determine, under s.98(4) of the 1996 Act, would be whether CHC had acted reasonably in treating that reason as a sufficient reason and that question has to be determined in accordance with equity and the substantial merits of the case.[195]To determine whether a dismissal for conduct is fair, valuable guidance was provided in the well-known case of British Home Stores Ltd v. Burchell [1980] ICR 303, to which we were referred by Mr Radcliffe’s Counsel. Mr Justice Arnold gave the following guidelines in that case at page 380:- “What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, honest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of that employee of that misconduct of that time. That is really stating shortly and compendiously what in fact is more than one element. First of all, there must be established by the employer the fact of that belief: that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief and thirdly, we think that the employer, at the stage at which he formed that belief, on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”[196]It was not disputed that Mr Radcliffe had contravened OMA1.4.2(o). However, for the reasons stated above, CHC had not carried out as much investigation into the matter as was reasonable in all the circumstances of the case. They chose not to investigate Mr Radcliffe’s contention that taking videos in the manner in which he had done was common practice. He had made available a number of photographs and videos which showed that other Pilots had done likewise which CHC did not investigate as a reasonable employer would have done. It was clear that they were fearful of what such investigations would have revealed. “Critical phases of flight”[197]Further, another, apparently significant, factor in Mr Barron’s decision was that Mr Radcliffe “failed to follow OMA 8.3.17.4.5, ‘sterile cockpit procedures during critical phases of flight’ due to using your mobile phone during critical phases of flight”. However, although “Critical phases of flight” is indeed defined in the OMA (P.951 and P.1025 8.3.17.4.5), when they gave evidence Mr Barron and CHC’s witnesses were unclear as to what exactly this meant. For example, when questioned by one of the Tribunal members, Mr Legradi, the Manager, Flight Operations, and a very senior employee, said that there were parts of the flight which were more critical than others; that it was a “judgment call”. When asked how a Pilot would know what was critical and what was not, Mr Legradi said that someone with Mr Radcliffe’s experience should know. Mr Bos, as we recorded above, also expressed his own personal view/interpretation of critical phase: “In my view take off and landing is the most critical phase”.[198]Also, in correspondence, after he had suspended Mr Radcliffe on 27 May 2023, Mr Legradi said this: “Given the current events you may be correct that a clearer policy on recording devices and use of mobile phones in the cockpit required” (sic) (P.242).[199]We concluded that whether or not a flight was at a critical phase was a subjective matter.[200]When dismissing Mr Radcliffe, CHC also relied upon an email by way of a “CP update” from Marco Massarini on 20 May 2023 in which, amongst many other things, he cautioned against the “Use of mobile phones and smartwatches (not on flight safe mode) airside and onboard” (P.240). Mr Radcliffe was questioned about this on two occasions at the disciplinary hearing. His responses were comprehensive and convincing (P.399 and P.401-403). The fact that Mr Massarini chose to include this in, “a general email sent to everyone’s inbox and didn’t have anything stating it was a must read”, along with such matters as “Elaine 60th”, and not by way of the App which alerted Pilots to significant and urgent flying issues, did not suggest that this was a crucial issue which, if not complied with, could lead to dismissal. In any event, Mr Radcliffe had his phone in “flight safe mode” at the time.[201]For all these reasons, therefore, we were of the unanimous view that not only was Mr Radcliffe’s dismissal procedurally unfair it was also substantively unfair.[202]We were of the unanimous view, with reference to such cases as Iceland Frozen Foods Ltd v. Jones [1982] IRLR 439, that CHC’s decision to dismiss Mr Radcliffe was not within the band of reasonable responses which a reasonable employer might have adopted. In arriving at that view we were also mindful that Mr Barron accepted when cross examined that Mr Radcliffe was “sincere” in his account; accepted that the contravention of OMA1.4.2(o) was not wilful; accepted that he was “chastened”; and believed him when he said he wouldn’t do it again.[203]Even if Mr Radcliffe’s was dismissed by reason of his conduct, therefore, we would still have found that his dismissal, was unfair, in all the circumstances, pursuant to s.98 of the 1996 Act (LOI 2.1.2).[204]Mr Radcliffe’s complaints of automatic unfair dismissal and being subjected to detriments were predicated on him having made protected disclosures, in terms of s.43B of the 1996 Act. Relevant law[205]The relevant statutory provisions in the 1996 Act are as follows:- “43A Meaning of ‘protected disclosure’ In this Act a ‘protected disclosure’ means a qualifying disclosure (as defined by section 43B), which is made by a worker in accordance with any of sections 43C to 43H. 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, was 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 an individual has been, is being or is likely to be in danger, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show that any matter falling within any of the preceding paragraphs has been or is likely to be deliberately concealed.”[206]We were also mindful that the Court of Appeal held in Kilraine v. Wandsworth London Borough Council [2018] ICR 1850 that, in order for a disclosure to be a “qualifying disclosure”, within the meaning of s.43B(1), the disclosure had to have sufficient factual content and specificity. It must have sufficient factual content to be capable of tending to show one of the matters listed in s.43B(1)(a) – (f). Qualifying disclosures[207]We first had to consider, therefore, whether the disclosures which Mr Radcliffe made qualified for protection.[208]In Martin v. London Borough of Southwark UKEAT/0239/20/JOJ the EAT set out the correct approach for assessing whether there had been a protected disclosure. The EAT re-iterated the five-stage test from a number of authorities for determining if there has been a protected disclosure: 1. There must be a disclosure of information (in the EAT’s view, the legal test should avoid an over restrictive approach to what amounts to information); 2. The worker must believe the disclosure is made in the public interest; 3. That belief must be reasonably held; 4. The worker must believe that the disclosure tends to show one of the matters in s.43B(1)(a)-(f)) of the 1996 Act; 5. That belief must be reasonably held.[209]The EAT stressed the importance of adopting a structured analysis to qualifying disclosures and working through all five stages, as it will clearly show which if any, of the five necessary conditions are accepted or not and it will also assist the Tribunal to ensure and demonstrate that it had not confused or elided any elements of the five-stage test.[210]The EAT noted that confusion had grown up about the distinction between disclosing “information” on the one hand, and “making an allegation” on the other, and re-stated the requirement for a statement or disclosure to have sufficient factual content and specificity to be capable of tending to show one of the matters listed in s.43B(1). “Information”[211]In Cavendish Monroe Professional Risk Management v. Geduld [2010] IRLR 38 at para.21 information was stated thus: “In order to fall within the statutory definition of protected disclosures, there must be a disclosure of information. There is a distinction between ‘information’ and an ‘allegation’ for the purposes of the Act. The ordinary meaning of giving ‘information’ is giving facts.”[212]In Learning Trust & Others v. Marshall UKEAT/2012/0107/11, it was held, at para.102 that: “Information in each of those letters ‘tends to show’ failure to comply with a legal obligation.”[213]Thus Cavendish was diluted and instead there must be some form of information which tends to show a failure to comply with any of the relevant failures in s.43B(1) (a)-(f).[214]Simpson v. Cantor Fitzgerald [2020] EWCA Civ 1601 which followed the seminal decision in Kilraine noted at para. 51 that: “We now know from the Judgment of Sales LJ in Kilraine that it is erroneous to gloss section 43B(1) of the 1996 Act to create a rigid dichotomy between ‘information’ on the one hand and ‘allegations’ on the other. In order for a communication to be a qualifying disclosure it has to have ‘sufficient factual content and specificity such as is capable of tending to show one of the matters listed in sub-section (1).”[215]And at para. 53 that a Tribunal following Cavendish was: “Applying too rigid a distinction between a query and information.”[216]Thus the question of what constitutes “information” for the purposes of s.47 can be stated as that which has: “sufficient factual content and specificity such as is capable to show one of the matters listed in sub-section (1).”[217]It was also of significance, in the present case, that multiple communications can, taken cumulatively, be considered a qualifying disclosure as per Norbrook Laboratories (GB) Ltd v. Shaw [2014] ICR 540. Public Interest[218]The question of what may constitute public interest was addressed in the seminal case of Chesterton Global Ltd (T/A Chestertons) v. Nurmohamed [2017] EWCA Civ 979 which set out a two-stage test namely:(a) Whether the worker subjectively believe the disclosure was in the public interest,(b) If so, whether that belief is objectively reasonable.”[219]The Judgment at para. 37 also says this:- “In my view the correct approach is as follows. In a whistleblowing case where the disclosure relates to a breach of the worker’s own contract of employment (or some other matter under section 43B(1) where the interest in question is personally in character) there may nevertheless be features of the case that make it reasonable to regard the disclosure as being in the public interest as well as in the personal interests of the worker.”[220]Further, in Babula v. Waltham Forrest College [2007] IRLR 346 the Tribunal held that, “there is nothing in section 43B(1) which requires the whistleblower to be right.”[221]We were also mindful of Shamoon v. Chief Constable of the Royal Ulster Constabulary [2007] UKHL 11 and Woodward v. Abbey National PLC [2006] EWCA Civ 822.[222]Finally, so far as the “causal link” was concerned, we were mindful of Fecitt & Others V. NHS Manchester [2012] ICR 372, CA and Royal Mail v. Jhuti [2019] UKSC 55. Present case[223]What then of the present case?[224]We found the detriment complaints extremely challenging to address as there were so many “disclosures” which Mr Radcliffe’s Counsel submitted qualified for protection and his initial submissions ran to 120 pages. The alleged protected disclosures were specified at paras. 1.1.1 to 1.1.17 in the List of Issues and at paras 34 -411 of Counsel’s submissions; there were 17 alleged disclosures and 26 alleged detriments. It was difficult to marry each disclosure specifically with each detriment.[225]However, while there were numerous alleged protected disclosures, there was a degree of repetition. There was a commonality in most of them as they related directly to, or emanated from, Mr Radcliffe’s understandable and reasonable concern about the vibration in the cockpit of the S-92 helicopter; a concern that if he went back to work without OH advice on the risks of doing so, his back injury would be exacerbated (even Dr Mcintosh, the AME, agreed that an OH risk assessment was necessary); how CHC responded to Mr Radcliffe’s concerns including blocking a request for an OH investigation; Mr Radcliffe’s contention that it was common practice for other Pilots to take videos when flying, in the same way as he had done and for which he was disciplined.[226]However, as we recorded above, a series of complaints may amount to a disclosure of information (Norbrook Laboratories ).[227]That was why we found favour with the “reasonable groupings” which, helpfully, CHC’s Counsel suggested in his submissions: - “1. Disclosures that the flying position in the S-92 Helicopter, or whole body vibrations in that aircraft , may adversely affect the Claimant’s underlying back issues(1.1.1-1.1.3 and 1.1.9). (These, in our view, fell within s.43B(1)(d)); 2. Disclosures that the Respondent was “blocking” investigation of that issue by Occupational Health (1.1.4-1.1.9, 1.1.12, and 1.1.15) (These, in our view, fell within ss. 43B(1)(b) and (f)); 3.Disclosures that the Respondent decided to discipline the Claimant because of his spinal condition, made worse from flying (1.1.10) (These, in our view, fell within ss43B(1)(b),(d) and(f)); 4. A disclosure that staff operating the S-92 helicopter were exposed to whole body vibrations which may cause spinal injury (1.1.11) (This, in our view, fell within ss.43B(1)(b) and (d)); . 5. A disclosure that other Pilots had done the same thing as he was disciplined for (1.1.13, 1.1.14, and 1.1.16) (This, in our view, fell within s.43B(1)(b), (d) and(f)); 6. That the Respondent put commercial pressure on the Occupational Health provider not to engage with the Claimant.”. (We were of the unanimous view it was not established, in evidence that Mr Radcliffe made such a disclosure and even if he did he could not have had a reasonable belief that it was made in the public interest) “Reasonable belief in the public interest”[228]In his submissions, the respondent’s Counsel took issue with Mr Radcliffe’s disclosures, on the basis that they were not in the public interest as they related only to his concern about his own back condition and his grievance about CHC’s treatment of him.[229]S.43B(1) of the 1996 Act requires that, in order for any disclosure to qualify for protection, the person making it must have a “reasonable belief that the disclosure is made in the public interest”.[230]The leading case is Chesterton Global in which the Court of Appeal suggested that the following factors might be relevant: “ Numbers in the group whose interests the disclosure served; The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a trivial wrongdoing is less likely to be covered; The nature of the wrongdoing disclosed; The identity of the alleged wrongdoer.”[231]It is true that most of Mr Radcliffe’s “disclosures” were personal in nature as they related to his concerns about his back condition. However, there were features that, in our unanimous view, made it reasonable for Mr Radcliffe to believe that he was making the disclosures in relation to the vibrations in the S-92 and other Pilots taking in-flight videos, in the same way as he had done, in the public interest.[232]So far as the guidance in Chesterton was concerned, Mr Radcliffe was part of a large group of Pilots who, like him, flew the S-92 and other helicopters such as the H175 over the North Sea and worldwide. These Pilots had similar interests.[233]There was also the wider public interest as regards health and safety. Mr Radcliffe had a reasonable concern that his back condition was caused, or at least had been exacerbated, by the cockpit vibrations in the S-92 and he had been told by the AME, Dr McIntosh, that it was generally recognised that the S-92 was one of the worst for Helicopters for cockpit vibrations; there was also a health and safety issue in relation to the common practice among Pilots of taking videos during the critical phase of flight.[234]Further, as Mr Radcliffe’s Counsel submitted, even CHC had concerns that the issues which Mr Radcliffe was raising could potentially have much wider implications than his own narrow self-interest.[235]As Counsel submitted:- “It is of note that the respondent immediately grasped the wider implications of the claimant’s disclosure. They were concerned it might lead to a ‘BIG precedent’ (P.266) and the other Pilots may follow suit. At P.209 Mr Russell wrote that, ‘I think this is has much wider consequences for the Company and industry if ever a recommendation was made………………………………… The other concerns are known to the Tribunal. The respondent wanted to carefully manage the concern and brought in senior staff from the wider organisation of which the respondent was a part to manage it precisely because they saw it as having wide ranging consequences and – in their mind – risk to their business and the wider industry.”[236]Mr Radcliffe was not only concerned about his own back condition but also about wider health and safety implications which, in the circumstances, could be far reaching.[237]For all these reasons, therefore, we were of the unanimous view, that Mr Radcliffe had a reasonable belief that his disclosures were made in the public interest. Disclosure of information[238]We were satisfied, having regard to Cavendish, Simpson and Kilraine, that all 17 disclosures were disclosures of information.[239]We were satisfied, with reference to Kilraine, in particular, that they had sufficient factual content and specificity.[240]The Court in Kilraine also stressed that the word “information” in s.43B(1) has to be read with the qualifying phrase ‘tends to show’, one of the matters listed in s.43B(1)(a)-(f). In our view, the alleged disclosures satisfied that requirement. This is dealt with more fully below.[241]Further, in arriving at the view these were all disclosures of information, we were mindful that this can include conveying facts about what has not been done, as well as what has been done (Millbank Finance Services Ltd v. Crawford [2014] IRLR 18).[242]We were of the unanimous view, therefore, that all of the disclosures in the LOI qualified for protection. Detriments[243]The term “detriment” is not defined in the 1996 Act, but from the case law it clearly has a broad ambit and a low threshold.[244]It requires to be assessed from the view point of the worker (Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, HL). However, in Warburton v. Chief Constable of Northamptonshire Police [2022] IRLR 925, the EAT confirmed that although the test is framed by reference to a “reasonable worker”, it is not a wholly objective test. It is sufficient that a reasonable worker might take the view that the conduct in question is detrimental.[245]In Shamoon, their Lordships also emphasised that it is not necessary for there to be physical or economic consequences to the employer’s act or inaction for it to amount to a detriment. What matters is that the complainant is shown to have suffered a disadvantage of some kind compared with other workers.[246]In a detriment case, in terms of s.48(2) of the 1996 Act, it is for the employer to show the ground on which any act, or deliberate failure to act, was done. In the absence of a satisfactory explanation from the employer, the Tribunal may (but not must) draw an adverse inference (LB of Harrow v. Knight [2003] IRLR 140. It was also held in Fecitt v. NHS Manchester [2012] ICR 372 that the protected disclosure need only be a more than trivial influence.[247]That is a less demanding test than proving a causal link between a protected disclosure and dismissal as in terms of s.103A where the protected disclosure must be the reason or principal reason for the dismissal. In other words, the protected disclosure in a detriment case can be one of many reasons for the detriment, whereas s.103A requires the disclosure to be the primary motivation for a dismissal. Alleged detriments in the present case[248]These are detailed at para 3 in the LOI. “Subject matter of the protected disclosures”[249]As far as the six relevant failure in s.43B(1)(a)-(f) were concerned, the claimant’s Counsel made the following submissions at para.458:- “As to subject matter the C relies – variously – on PD’s made under s.43B(1)(a), (b), (d) and (f). Those provisions are engaged when the employee discloses information, which in the reasonable belief of the employee is made in the public interest and tends to show one of the following: 458.1.1. s43(1)(a): that a criminal offence has been committed, is being committed or is likely to be committed. (Note that it is a criminal offence in terms of s.33 of the Health and Safety at Work Act 1974 to fail to discharge the general duty owed to employees and to contravene any health and safety regulations, including the Control of Vibration at Work Regulations 2005).”[250]On the evidence, we were not persuaded that S.43(1)(a) engaged.[251]Counsel then went on in his submissions as follows:- “458.1.2. s43(1)(b): that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject (Note that the R had and has a legal obligation to ensure, so far as is reasonably practicable, the health, safety and welfare at work of the C and others who fly on S-92. That is a common law duty informed by the various Regulations including the Control of Vibrations at Work Regulations 2005 (see for example the recent case of Swierzko v. Mathiesons Bakery Ltd [2024] SCLR 664 at paras. 38 and 41)………………………………………………………………………………. 458.1.4.s43(1)(d): that the health and safety of any individual has been, is being or is likely to be endangered; (Note that the health and safety of the C and likely other Pilots is or has, likely been, endangered by the S-92 vibrations. At the very least the C reasonably believed that was likely to be so. The C had back pain associated with flying the S-92 which tended to clear up when not flying for an extended time. He was told that the S-92 was one of the worst helicopters for WBV by Dr. McIntosh, the AME. He knew the H175 had less WBV. He also knew the access to the S-92 was comparatively awkward when compared to the H175. The R did not follow the recommendations of Dr. Hyder, the OH Doctor, supported by Dr. McIntosh, AME and is recommended in the context in the grievance, to instruct an analysis of the whole body vibrations (WBV) in the cockpit of the S-92 or to permit an OH assessment to take place. Neither did R provide proper data to allow comparison between WBV values in both aircraft. C knew that WBV in S-92 measured on an Apps on his smart phone showed the legal limits were likely exceeded. The R produced a risk assessment which on the face of it is not suitable and sufficient as required by Reg. 5 of the 2005 Regs.”[252]We were satisfied on the evidence, that these submissions in relation to categories (b) and (d) were well-founded.[253]So far as s.43(1)(f) was concerned, on the evidence we were only persuaded that the following submissions were well-founded:- “458.1.5.s43(1)(f): the information tended to show any matter following within any one of the proceeding paragraphs has been or is likely to be deliberately concealed. (the R has not produced vibration data showing the actual levels of WBV that C and colleagues experienced in S-92’s or H175 helicopters owned by the R and in the actual conditions in which they fly. The R has produced a risk assessment which it is submitted, on the face of it, is not suitable and sufficient as required by Reg.5 of the 2005 Regs. It is not based on actual measurements of WBV taken on the helicopters that R uses from the seat the Pilot requires to sit in during real time flying.[254]The claimant’s Counsel went on in his submissions to make reference to the “paper relied on at Pg.489-Pg.495.” On the evidence, we were not persuaded that his submissions in this regard were well-founded. However, we did find favour with the following remaining part of this particular submission:- “In any event the C had a known back condition and it was thought by the medics to relate to WBV. Dr. Hyder wanted to assess comparative risk to the C in his particular circumstances of flying S-92 and H175. A comparison can only be made if there was data for each aircraft to compare. Even if the data measured showed that exposure was below the values in the Reg. 4 Control of Vibration at Work Regs. 2005, for the C who had a back condition, knowing the actual values of each aircraft was the only way to assess comparative risk between the aircraft for him as already vulnerable person.”[255]We were satisfied, therefore, that categories (b), (d) and (f) engaged.[256]As we recorded above, the protected disclosures and detriments are referred to in paragraphs 34-411 of the submissions by Mr Radcliffe’s Counsel. The list of detriments can be found at para. 3.3 in the LOI.[257]So far as the detriments were concerned, as we recorded above there was an overlap in the categories in the established ss. 43B(1) (b), (d) and(f) subject matters.[258]With reference to the LOI at para. 3.3, we were of the view that the majority of these detriments were well-founded. We were satisfied that all of the alleged detriments were established, on the facts, except for the following: 3.3.6;3.3.7;3.3.13; 3.3.18;3.3.19; 3.3.21; 3.3.23[259]Further, we noted that there was a hand-written amendment to the list of issues which meant that there were a total of 26 alleged detriments and not 25. The additional detriment added in handwriting at 3.3.25 was as follows: “Directing the claimant to return to the S-92 working environment, which was potentially causing pain and further disability.”[260]We found it extremely difficult and most challenging, to marry the protected disclosures precisely with specific detriments, as we were required to do, due to the number of disclosures, the number of detriments and the degree of overlap and repetition. However, conversely the nature of these established detriments also helped to confirm which type of disclosure in ss. 43B(1) (b), (d) and (f)) had resulted in which particular detriment. We found that they tended to show the following and accordingly, with reference to the “groupings” at para 227 above, related to the particular disclosures in each grouping, in turn (highlighted) : - 3.3.1: (d); (1.1.1 -1.1.3; 1.1.9; 1.1.10; 1.1.11; 1.1.13; 1.1.14; 1.1.16) 3.3.2: (b), (d) and (f); (1.1.1-1.1.9; 1.1.4-1.1.9;1.1.12; 1.1.15; 1.1.10;1.1.11; 1.1.13; 1.1.14; 1.1.16) 3.3.3: (d) and (f); (1.1.1-1.1.3;1.1.9;1.1.4-1.1.9;1.1.12;1.1.15; 1.1.10;1.1.11; 1.1.13; 1.1.14;1.1.16) 3.3.4: (b) and (d);(1.1.1-1.1.3; 1.19; 1.1.4-1.1.9;1.1.12; 1.1.15; 1.1.10;1.1.11; 1.1.13;1.1.14;1.1.16) 3.3.5: (b) and (d); (1.1.1-1.1.3;1.1.9; 1.1.4-1.1.9; 1.1.12;1.1.15;1.1.10;1.1.11; 1.1.13; 1.1.14; 1.1.16) 3.3.8: (d) and (f);(1.1.1-1.1.3; 1.1.9; 1.1.4-1.1.9; 1.1.12; 1.1.15; 1.1.10; 1.1.11; 1.1.13; 1.1.14;1.1.16) 3.3.9: (d) and (f);(1.1.1-1.1.3; 1.1.9; 1.1.4-1.1.9; 1.1.12; 1.1.15; 1.1.10; 1.1.11;1.1.13;1.1.14;1.1.16) 3.3.10: (d);(1.1.1-1.1.3; 1.1.9;1.1.10;1.1.11; 1.1.13;1.1.14; 1.1.16) 3.3.11: (b);(1.1.4-1.1.9; 1.1.15;1.1.10;1.1.11; 1.1.13; 1.1.14; 1.1.16) 3.3.12:(b),(d)and(f);(1.1.3-1.1.4;1.1.9;1.1.4-1.1.9;1.1.12;1.1.15; 1.1.10;1.1.11; 1.1.13;1.1.14; 1.1.16) 3.3.14:(b)and(d);(1.1.1-1.1.3;1.1.9;1.1.4-1.1.9;1.1.12;1.1.15; 1.1.10;1.1.11;1.1.13;1.1.14;1.1.16) 3.3.15:(b),(d) (f); (1.1.1-1.1.3; 1.1.9;1.1.4-1.1.9;1.1.12;1.1.15; 1.1.10; 1.1.11; 1.1.13; 1.1.14;1.1.16) 3.3.16:(b)and(f);(1.1.4-1.1.9;1.1.12;1.1.15;1.1.10;1.1.11; 1.1.13;1.1.14;1.1.16) 3.3.17:(b)and(f);(1.1.4-1.1.9;1.1.12;1.1.15;1.1.10;1.1.11;1.1.13; 1.1.14;1.1.16) 3.3.18: (d);(1.1.3-1.1.9; 1.1.10; 1.1.11; 1.1.13;1.1.14;1.1.16) 3.3.20:(d)and (f);(1.1.1-1.1.3; 1.1.9;1.1.4-1.1.9; 1.1.12; 1.1.15;1.1.10;1.1.11; 1.1.13;1.1.14; 1.1.16 3.3.22: (b);(1.1.4-1.1.9;1.1.12;1.1.15; 1.1.10;1.1.11; 1.1.13;1.1.14; 1.1.16) 3.3.24: (b);(1.1.4-1.1.9; 1.1.12;1.1.15;1.1.10;1.1.11;1.1.13;1.1.14;1.1.16) 3.3.25:(b)and(d);(1.1.1-1.1.3;1.1.9;1.1.4- 1.1.9;1.1.12;1.1.15;1.1.10;1.1.11;1.1.13;1.1.14;1.1.16) 3.3.26: (b);(1.1.4-1.1.9;1.1.12;1.1.15;1.1.10;1.1.11;1.1.13;1.1.14;1.1.16) Causation[261]We then considered the issue of causation: proving the causal link between the disclosure and the detriment. The correct approach to the words, “on the ground that” in s.47B was considered by the Court of Appeal in Fecitt. In that case, Elias LJ formulated the causation test of what is required under s.47B as whether the protected disclosure materially (in the sense of more than trivially) influences the employer’s treatment of the whistleblower.[262]We also found the guidance of the EAT in International Petroleum Ltd and Ors v. Osipov and Ors EAT 0058/17 on the proper approach to drawing inferences in a detriment claim, to be of assistance.[263]While we found it difficult to marry each and every disclosure specifically with an alleged detriment, because of the commonality of the disclosures we were able to conclude that there was a sufficient link between the detriments which we found to have been established on the facts and the protected disclosures.[264]As we recorded above, Mr Radcliffe had genuine and reasonable concerns that his serious back problem was caused by the vibrations in the S-92 and before returning to flying he required advice from OH as to whether or not it was safe for him to fly the S-92 and, in particular, whether this was likely to exacerbate his back condition.[265]To enable such advice to be properly given, Dr. Hyder at OH required to physically inspect both the S-92 and H175 and to obtain WBV data.[266]CHC was resistant to this and the reason was clear. They feared that an investigation by OH might have wider and far reaching implications for their Pilots flying the S-92.[267]We did not accept the contention by CHC that OH did not have the specialist expertise to give such advice, in particular in relation to the impact of WBV. That is exactly their function. Indeed, if they did not have the required expertise they could have obtained it. Furthermore, the AME, Dr McIntosh, confirmed that an OH Report was required as his opinion that Mr Radcliffe was fit to fly when examined by him did not “trump” the opinion of OH (P.231), something which apparently Mr Legradi did not accept when he baldly and uncompromisingly said in his email of 26 April (P.220): “If Mark is fit to fly he should be rostered to fly” and something others at CHC chose not to accept.[268]Lesley Sim, Head of HR, also said in evidence that she did not know the relationship between the AME, OH and the Pilots but then said, “my failure, if any was that in hindsight I would see that there is a place for OH”.[269]Mr Radcliffe’s protected disclosures materially influenced CHC’s treatment of him. He was subjected to detriments “on the ground that” he made these disclosures.[270]We were of the unanimous view, therefore, that Mr Radcliffe was subjected to these detriments on the ground that he had made protected disclosures. Time Bar[271]Nor were the detriment complaints time-barred as CHC’s Counsel submitted. They were not “separate and distinct acts or omissions”. They were a “series of similar acts and failures” ( Employment Rights Act 1996 s.48(3)(a)). They were all part of a continuing act. Automatic unfair dismissal[272]The relevant statutory provision is s.103A of the 1996 Act which is in the following terms:- “103A Protected Disclosure 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.”[273]As we recorded above, we were satisfied that Mr Radcliffe made a number of disclosures which qualified for protection. Causation[274]We remained mindful that the test of causation for a dismissal, in terms of s.103A, is a higher one than that for detriment in terms of s.47B. A dismissal is unfair under s.103A only if the protected disclosure is the reason or principal reason for it.[275]So far as causation and the burden of proof was concerned, we found the guidance of the Court of Appeal in Kuzel v. Roche Products Ltd [2008] ICR 799 to be of assistance. Lord Justice Mummery explained in that case that, “the reason or principal reason for the dismissal is a question of fact for the Tribunal. As such, it is a matter of either direct evidence or of inference from primary facts established by evidence”. The present case fell into the latter category.[276]We were of the unanimous view, that Mr Radcliffe was dismissed on 31 August 2023 when he was unjustifiably and unreasonably demoted to the position of Co-Pilot and unreasonable, unjustifiable, conditions were imposed to enable him to regain his position as Captain. The decision makers were aware of the protected disclosures which he made; CHC did not advance a reason for his dismissal; Mr Radcliffe was contrite; it was accepted that the breach of OMA1.4.2(o) was not wilful; his assurance that it would not be repeated was accepted; there was no valid reason for imposing sanctions beyond a written warning; Mr Radcliffe, a whistleblower, was treated differently from other Pilots who were not whistleblowers, in similar situations; CHC was extremely concerned that there could be wider implications were they to fully address the concerns expressed by Mr Radcliffe in his protected disclosures, concerns which were clearly expressed by Lesley Sim and Graeme Russell, amongst others; they spoke of concerns about the “wider consequences”, the need for “careful management” and of CHC being in a “precarious situation” (P.209-210); they would not allow a proper OH investigation; they chose to ignore the opinion of the AME, Dr McIntosh that his decision that Mr Radcliffe was fit to fly did not necessarily “trump” an OH report (P.231). In colloquial terms, “they wanted to keep a lid on it”.[277]Further, when it came to the Appeal, Mr Bos was not impartial. He was aware of CHC’s concerns although initially he denied that he had such knowledge.[278]In all the circumstances, there was some force and indeed logic, in Mr Radcliffe’s opinion that the purpose of adding a wholly unjustified and unexplained demotion to the written warning and imposing challenging conditions to enable him to return to the Captaincy was to create a situation which he found to be untenable, he would resign and this would mean that the health and safety and other issues which he had raised in his disclosures, relating to flying the S-92 would not have to be addressed. He had sensed for some time that CHC were unhappy with him raising his concerns because of the way he was being treated. On 30 May 2023, in an email to Mr Legradi (P.243) he asked: “Finally, I feel compelled to ask – have I done something to upset the company by having a spinal disease? .......................................other staff are speculating I’ve got a target on my back and it’s starting to make me feel that these matters (his back injury and his then suspension which led to his dismissal) may be related”.[279]Mr Radcliffe was dismissed because he was demoted to Co-Pilot and unjustifiable and unreasonable conditions were imposed to enable him to regain his Captain’s status. We were of the unanimous view that, in all the circumstances, an inference could be drawn that the principal reason for his dismissal was that he had made a number of protected disclosures. There was a sufficient causal link between the making of the protected disclosures and his dismissal.[280]Mr Radcliffe’s dismissal, therefore, was automatically unfair. Remedy Hearing[281]Having reached this decision, parties are directed to liaise with a view to agreeing an appropriate award of compensation, failing which a Remedy Hearing will be fixed.