Mr D Allison v William Hill Organization Ltd: 4107720/2024
JUDGMENT
[1]The claim of unfair dismissal under section 98 of the Employment Rights Act 1996 (the ERA) is dismissed;[2]The claim of automatically unfair dismissal under the ERA is dismissed;[3]The claim of detriment under section 47C of the ERA is dismissed; and[4]The claim of direct discrimination under section 13 of the Equality Act 2010 (the EQA) is dismissed.REASONS
[1]The claimant presented a claim on 18 December 2024 for unfair dismissal; automatically unfair dismissal under section 104 of the Employment Rights Act 1996 (the ERA); detriment on the grounds of having made a protected disclosure under section 47C of the ERA; and discrimination under section 13 of the Equality Act 2010 (the EQA) on the grounds of marriage.[2]A final hearing took place over 7 days. The claimant appeared on his own behalf and the respondents were represented by Mr McDougal, counsel.[3]There was no agreement on the quantum of the claim and the with the consent of the parties, the hearing was split into merits and remedy.[4]The claimant gave evidence on his own behalf and his wife, Kayleigh Allison (KA), also gave evidence on his behalf.[5]For the respondents, evidence was given by:a. Willaim Black (WB)- Area Managerb. Andrew Jamierson (AJ-) Area Manager, who dealt with KA grievance.c. Ruth Wislon (RW) - Cluster Operations Manager (COM) and the Claimants line manager . A joint bundle of documents was produced.Issues
[7]The parties agreed the following List of Issues (LOI). Jurisdiction – timingIssues
[1]Have the Claimant’s claims for discrimination and whistleblowing detriment been brought within the relevant time period of three months starting with the acts/omissions to which the claims relate? The Respondent contends that any allegations which arose prior to 7 July 2024 (being three months plus one day before the early conciliation notification on 6 October 2024) are out of time.[2]If not, do the alleged acts or omissions which the Claimant refers to in his claim form constitute a continuing act of discrimination, the end of which fell within the time limit?[3]If not, are there any grounds on which it would be just and equitable to extend time? Constructive unfair dismissal[4]Was the Claimant dismissed in accordance with section 95(1)(c) of the Employment Rights Act 1996 (ERA)? Specifically:a. Did the Respondent breach the Claimant’s contract of employment?b. If so, was any such breach a repudiatory breach of contract?c. Did the Claimant waive any such repudiatory breach of contract?d. Did the Claimant resign as a result of the alleged breach of contract?[5]The breaches of contract relied on by the Claimant are:a. Willie Black asking the Claimant for advice about where Kayleigh Allison should work and tasking the Claimant with passing that information on to his wife on 10 June 2024;b. the Respondent failing to remove the Claimant from having contact with the individuals accused of bullying Kayleigh Allison between June and July 2024;c. Andrew Jamieson refusing to take a statement from the Claimant during the investigation into Kayleigh Allison’s grievance between July and September 2024;d. the Respondent taking no meaningful action regarding the Claimant’s alleged whistleblowing complaints by not holding a meeting with him in relation to the complaints of 1 July 2024 until 26 August 2024 and not taking any disciplinary action against the alleged perpetrators in respect of the sale of food;e. the Respondent not giving any support regarding the impact of Kayleigh Allison’s situation on the Claimant during August and September 2024; andf. the Respondent failing to take disciplinary action in respect of Kayleigh Allison’s grievance and partially rejecting her complaints because of factual errors in the investigation which arose as a result of the Respondent’s failure to interview the Claimant.[6]If the Employment Tribunal finds that the Claimant was dismissed, what was the reason or the principal reason for the Claimant’s dismissal? In particular, was the Claimant dismissed for some other substantial reason of a kind such as to justify the dismissal of the Claimant within the meaning of section 98(1)(b) of the ERA?[7]Was the Claimant’s dismissal fair within the meaning of section 98(4) of the ERA? In particular, did the Respondent act reasonably in treating that reason as sufficient for dismissing the Claimant? Automatic unfair dismissal[8]Did the Claimant make any disclosures which amounted to protected disclosures (as defined by section 43A ERA) during the course of his employment? The protected disclosures relied on by the Claimant are:a. oral and email communications by the Claimant to Ruth Wilson on 24 June 2024 regarding the selling of food with no licence, no list of ingredients and the sale of food being unauthorised business in the Peebles licensed betting offices;b. oral communications with Ruth Wilson on an unspecified date;c. an email to Willie Black on 1 July 2024;d. an email to HR on 6 July 2024; ande. an email to the Respondent’s whistleblowing service on an unspecified date, with 8b – e all relating to the selling of food with no licence, no list of ingredients and the sale of food being unauthorised business in the Peebles licensed betting offices.[9]Was the Claimant dismissed?[10]If so, was the reason (or, if more than one, the principal reason) for the dismissal that the Claimant made the protected disclosures set out at 8a-e? Detriment on the grounds of a protected disclosure[13]Did the Claimant make any disclosures which amounted to protected disclosures (as defined by section 43A ERA) during the course of his employment? he protected disclosures relied on by the Claimant are the same as the discourse identified above at (a) to (e) above.[14]If so, did the Claimant suffer any detriment on the grounds that he made a protected disclosure? The detriment(s) relied on by the Claimant are:a. no meeting was held to discuss his alleged 1 July 2024 disclosure until 26 August 2024; andb. placing the Claimant on paid leave from 1 October 2024 during his notice period. Marriage discrimination[16]Who is the correct comparator for the purposes of the Claimant’s claim of direct marriage discrimination?[17]Was the Claimant treated less favourably because of his marital status, contrary to section 13 of the Equality Act 2010 (EqA)? The Claimant relies on the following:a. on 10 June 2024, Willie Black asked the Claimant for advice about where Kayleigh Allison should work. Willie Black then tasked the Claimant with passing on that information on to Kayleigh Allison; andb. between July and September 2024, Andrew Jamieson refused to take a statement from the Claimant during the investigation into Kayleigh Allison’s grievance dated Findings in fact The respondents 8. The respondents are a large UK wide company involved in the business of running Licenced Betting Shops (LBOs). 9. They have a Human Resources (HR) Department; Employee Relations advisors (ERs) provide advice and support on HR issues. There are a number of policies and procedures in place for the management of staff. These include a Disciplinary Policy, a Grievance Policy and a Whistleblowing Policy. Advise is regular sought by managers from ER and a file created in which the documents can be upload. 10. LBOs are organised into what is referred to as clusters, which generally comprises of a number of shops over a particular geographic area. Each LBO has a Team Leader (TL), who acts in the capacity of a shop manager. Customer Service Representatives (CSRs) in the LBO are direct reports to the TL. The TL has authority to issue first level disciplinary sanctions, referred to as file notes. 11. TLs are responsible for their own LBO’s , however they can also be asked to cover shifts in other LBO in their Cluster. If an LBO in the cluster does not have a TL, then the TL’s in the cluster on occasion step in to help. 12. The TL reports directly to the Cluster Manager (COM), who has management responsibility for the shops in each cluster. There is regular contact between TL’s and COMs. The COM reports directly to the Area Manager (AM) who has management responsibility for a number of clusters, generally around a geographic area. 13. Each shop in the cluster has what is referred to as a ‘buddy’ shop. These shops are in contact with each other on a regular basis daily for security purposes. Changing or swapping buddy shops is a straightforward process. 14. The respondents have a policy which precludes couples or close relatives working together in an LBO, other than in exceptional circumstances. The claimant 15. The claimant, whose date of birth is 23 December 1981, commenced his employment with the respondents on 26 November 2016.The claimant was promoted to the position of TL on 1 February 2023. He was generally regarded by as an efficient and hard worker. 16. The claimant was employed at the relevant time as a TL in the Galashiels LBO. He also had responsibility for two racecourse sites. The cluster in which Galashiels LBO sat covered a fairly large geographic area in the south of Scotland which included Lanark, Penicuik, Peebles and Hawick. The COM from May/June 2024 was Ruth Wilson (RW) and the AM was Willie Black (WB). 17. The Galashiels and Peebles LBOs were buddy shops. Incident on 9 June 2024[18]The claimant’s wife, Kayleigh Allison (KA), also worked with the respondents. She was the TL at the Peebles LBO. KA had worked in Hawick at some point, however this site was not suitable for her to work in for medical reasons because of the shop layout.[19]There were issues with KA and two of her CSR’s at Peebles, Judith Weir (JW) and Sharon Ashworth (SA). Following an incident at work on 9 June 2024, KA self-harmed while at work and required to go to hospital. KA did not want to take time off work following this incident.[20]By 10 June 2024, WB and RW had become aware of the incident. WB sought advice from HR and the view was taken that it was going to be difficult for KA to move back to Peebles after what had happened. The decision was taken to move KA locally, initially at least on a temporary basis. The available options for moving KA in the cluster were Hawick and Galashiels. Hawick was not suitable because of the shop lay out, and a decision was taken by WB that the claimant should move to Hawick and that KA would move to Galashiels. WB knew the move would involve a difficult conversation with the claimant as TLs are generally reluctant to move. WB knew the claimant from working with him for a number of years and considered that he had a good working relationship with him so felt he was well placed to have the conversation with him. He felt that it was more appropriate for RW to have a conversation with KA, as WB did not have the same relationship with her as he did with the claimant, and RW was KA’s line manager.[21]WB telephoned the claimant on 10 June 2024 to advise him of what was being proposed. WB had the power to move the claimant to another branch without his consent, but he wanted to secure what he termed the claimant’s ‘buy in’ for the move. There was no direct discussion about what had occurred to bring about the move, but it was obvious to both the claimant and WB what the reason for it was. WB asked generally after KA’s health in the course of the conversation. WB proposed to the claimant that he moved to Hawick for a short time. The claimant was reluctant to move to Hawick on a permanent basis, but he agreed to do so on a temporary basis. He asked if he would be paid travel expenses for his move to Hawick, which WB agreed to.[22]RW spoke to KA five days later about the move on 15 June. SA leave request/grievance. Claimant’s Disclosures/ Grievances[23]While KA was TL in Peebles LBO issue had arisen from a request by SA for time off to attend a wedding. The leave was ultimately sanctioned by RW.[24]The claimant sent SA a private WhatsApp message on 18 June 2024 in the following terms: “Hi Sharon. It's Darrin. With regard to your shifts they are not being changed by any of the Team Leaders in either Gala, Peebles or Penicuik. I have informed the COM of that fact. At no point were you told you could have that time off. In fact, you were told on more than one occasion that it was not possible. Your Team Leader only told you they would try to get something sorted, but in the end it was not possible. Your Team Leader had herself in on a whole weekend to give you the time off, but I am the one who changed it because there was no available cover. … You have behaved selfishly, despicably and deviously your behaviour towards your Team Leader has been shocking and disgusting. You will be getting a file note for your actions on Saturday (not even passing the Safe Com on to your TL) and I hope that further action is taken for your behaviour. You need to take a long hard look at how unbelievably immature, selfish and backhanded you have been acting, especially over this. Your rota for this week is in the hands of the COM now, because .as I said, the TL’s will not be changing it as we are fundamentally opposed to the way you have gone about this.”[25]SA raised a grievance on 24 June 2024 complaining about the message and the fact that the claimant was not her TL but was raising issues. She stated that she felt anxious about working with the claimant.[26]The claimant did continue to work with SA and JW after this message was sent and after JW’s grievance was raised. He did not consider there was any difficulty with this.[27]On 24 June 2024, the claimant made a verbal disclosure to RW advising that SW and JW were selling cakes and tablet out of the Peebles shop. This was a matter which had been known to him for some time.[28]On 25 June 2024, the claimant emailed RW advising that SW and JW were selling homemade tablet in the LBO, despite having been told previously by him not to do so. He stated that the shop was not a licenced to sell food; there were no ingredients or allergy information, which was in violation of regulations; they are not authorised to sell anything beyond what is authorised by William Hill. The e-mail stated that this was putting the respondent's licence at risk, and all it required was for someone to have an allergic reaction for there to be serious consequences.[29]On 1 July 2025, the claimant emailed RW, WB and a Raymond McGaghey (RM) . This email dealt firstly with the claimant’s intention to issue file notes (which the claimant had drafted) to JW regarding what the claimant considered to be issues arising in the main from her behaviours to AK in the Peebles LBO. These were not issued by the claimant because of a conversation between the claimant and RM in which he advised the claimant not to go ahead with them, as JW had complained about the claimant having a vendetta against her.[30]The claimant’s proposed file notes were attached to the email; they dealt with what could be described as minor operational details such as moving furniture and pen dispensers. One file note stated JW had engaged in disrespectful and disruption arguments with her TL (KA).[31]In his email, the claimant strongly refuted that position that he had a vendetta against JW. The email contained the flowing allegations:• That a previous COM ignored KA’s emails asking for help and seeing that she was under severe mental distress at the situation; SA and JW were allowed to continue to undermine KA.• That a COM had dealt with an operational issue with SA, where she was said to have acted contrary to an instruction given by KA.• The email contained the following; “Another case in point is the fact that they are selling homemade food (tablet and cakes made by Sharon's mother and brought in by Sharon) to customers, in complete contravention to the law on selling food, and to our licence that does not grant us permission to sell anything not authorised by Evoke Plc. Clearly putting the shop's licence in jeopardy if caught. Considering there are no ingredients, allergens, or other information on the items, all it would take would be for one customer to have an adverse reaction to the food for there to be a cause for action to be taken against the company. I told them at the start of February that this was not allowed and that it had to stop. Kayleigh also told them. But all they did was put the products out of sight and continue selling. There is a large money tin in the cupboard with all the proceeds being collected for Sharon’s mother for the sale of the items. I have recently submitted evidence of this to Ruth, so there has been no time for this particular issue to be dealt with, but it is worth mentioning here.”• That the lack of punishment of SW and JW emboldens them.• That actions in Peebles continue to go unpunished, which led to the incident of 9 June 2024 with KA.• That KA feels she is being forced out of the shop by SW and JW.• The operational issues in the file reports, which the claimant described as petty, but what followed was severe, and unchecked by management.• That he, the claimant, was prevented from finding solutions by the person who caused the problem• That KA had been bullied and that a separate complaint regarding this would be made by KA to the respondents.• That the proper solution was punishment of SW and JW; they should have been following the instructions of their TL.[32]The email ended with the claimant stating that: “So now it is out of my hands and firmly in yours. The time for asking or begging for help has long since passed. Now I'm demanding it as a hopefully valued employee and Team Leader, but also as a husband of another employee who has been put in this situation without adequate duty of care being provided…”[33]This email was treated as a grievance by the respondents. On 5 July 2024, RW responded to the claimant’s email. She apologised for the delay in coming back to him which she explained was due to her having been on leave, and then having to get advice from HR. She advised she would come in to see him to get more detail around the points raised to allow her to progress her investigations into the issues. She advised him that this would take her some time, but she hoped that he would trust she was dealing with matters. RW arranged to see the claimant on the Sunday of that week.[34]A meeting took place between the Claimant and RW on 7 July 2024, in which she obtained details from him about the allegation that SA and JW were selling food. In the course of this, the claimant said that both he and KA had told them it had to stop doing this in January/February 2024.[35]There was a discussion about the operational issue dealt with by a previous COM which the claimant had raised. RW told the claimant that this was could not be undone.[36]There was discussion about the alleged comments made by JW to KA which the claimant had raised. The claimant told RW that KA would have examples.[37]RW concluded the meeting by saying that she would undertake the relevant investigations and that she just needed some time to take a step back to prevent any additional pressure on the Claimant or KA. She told the Claimant to concentrate on his own shop and that any concerns around other LBO’s or TL’s, would be dealt with by her.[38]RW met with SA and JW individually on 9 July 2025. JW said that she had heard that if the food was in the cupboard and not on display, it was ‘ok’. SA said that she was aware it was not allowed, but that KA told her it was fine if it was in the cupboard and not on display. RW concluded on the basis of her investigations that both employees had been supplying cakes and tablet to customers at the Peebles shop. RW advised them both that selling products without the correct food selling licence was a risk to the business. She said it was running a business within a business which was also a concern. Both individuals undertook not to do this again. Both also denied having been told previously that they should not be doing this, saying they were told just to put the food into the cupboard.[39]RW decided that no further action needed to be taken in connection with this issue as she the employees had given an undertaking that it would not continue to happen. She considered that having got this undertaking, the employees in question did not need to be subjected to a disciplinary procedure so that they could be punished.[40]On 29 July 2024, RW emailed the claimant advising him that SA had raised a grievance against him on the basis of the WhatsApp message he sent her on 18 June 2024. He was asked to attend a grievance investigation meeting with her on 4 August 2025.[41]This meeting was postponed to 17 August 2025 and Carol Black (CB) conducted it as a result of a perceived conflict in RW dealing with it.[42]In the course of the grievance investigation meeting, CB asked the claimant if he would stand by his WhatsApp message to SW. The claimant said yes, most definitely. He said that he felt SA’s grievance was spurious and retaliatory and that he had made a conscious decision to send this as a message so that what he said would be recorded. He said that unfortunately the message was being looked at in isolation instead of how it should be viewed as the culmination of behaviours stemming from a request for time off. The claimant also said that he had worked shifts with SA since that message was sent to her and has communicated via WhatsApp with her too.[43]CB adjourned the meeting to carry out further investigations.[44]In the course of the grievance meeting, CB indicated to the claimant that he could not raise matters out with the ambit of SA’s grievance as part of this process.[45]The claimant then emailed a second grievance complaint to RW and WB on 22 August 2024, stating that he was raising a formal complaint against SA and JW. He complained that their actions towards KA from February and ongoing has profound negative effect on his work life balance and on his life. He complained that the stress and strain caused by both of these individuals caused him to have to work extra time to ease the pressure on KA as much as possible. He also complained about reputational damage which he said had been caused by these two individuals due to regular gossiping between them and their own team, which had ultimately led him to request that Galashiels change buddy shop in order to minimise the interaction between them.[46]The claimant had requested a change in buddy shops in August, which was implemented.[47]CB conducted her investigation of SA’s grievance on 17 and 24 August 2024.[48]On 26 August 2024, the claimant attended a grievance hearing with RW to consider his own grievances.[49]In the course of that grievance meeting, RW went through the points in the claimants email of 1 July 2024. She dealt with the compliant about SW and JW selling cakes and tablet by advising that more details had been obtained at the fact finding and investigation which had taken place, and that this had now been concluded. She advised she could not go into the sanctions applied to other employees. RW asked if anything else had happened since then. The claimant responded, not really, but that he knew they were still giving out cakes and they should not be doing this because of the risk of allergies. RW said that she would take that away. She did not carry out any further investigation into the matter.[50]On 28 August 2024, CB delivered her outcome to SA’s grievance. In so far as it related to the claimant’s WhatsApp. CB made a recommendation that the claimant should be subject to a disciplinary investigation. KA’s grievance – Outcome on 10 September 2024[51]KA had also lodged a grievance. Mr Andrew Jamieson (AJ) was appointed by HR to deal with in July 2024. AJ was a long serving experienced manager who had experience of dealing with grievances. He knew the claimant through working with him and considered that he had a good relationship with him and that he was a highly thought of member of staff.[52]In his conduct of the grievance, AJ considered KA’s written grievance; he interviewed KA in order to obtain details of the grievance. He asked about each allegation, and whether there were any witnesses to it and if so, who. From this exercise he identified 5 witnesses whom he considered relevant to the investigation and he interviewed them. The claimant was not identified as a witness to any of the allegations. JA did not interview him as he did not consider he was a relevant witness. The claimant’s name was mentioned in passing at the beginning of KA ‘s meeting with JA in the context of JA asking the claimant where he was working that day. KA did not ask for the claimant to be interviewed as part of her grievance investigation and the claimant did not contact JA to ask if he could provide a statement.[53]AJ delivered the outcome of his investigation into KA’s grievance on 10 September 2024. The claimant was not happy with the outcome which was delivered. KA was very unhappy about the outcome of her grievance ; she did not resign when she received the outcome. Claimant’s disciplinary investigation - 10 and 13 September 2024[54]Paul Duchworth (PD) was appointed to deal with the claimant’s disciplinary investigation.[55]Mr Duckworth conducted a disciplinary investigation with the claimant on 10 September 2024. This could not be completed in the time allocated and it was reconvened for the 13 September. At the conclusion of the meeting Mr Duckworth advised the claimant that he was referring the matter for a disciplinary hearing. He indicated that he did not believe that this was a gross misconduct issue, but a misconduct issue. Claimant’s resignation -14 September 2024[56]When the claimant was told he was going to face disciplinary proceedings , he decided to resign. On 14 September 2024 at 1.44pm, the claimant emailed his resignation to RW. In that email, the claimant stated among other things that KA was in a very fragile state and felt incredibly let down by the company. He stated that what made matters worse was that he was now having to go through disciplinary action for sending one message calling someone out on their behaviour, while the same person had managed to avoid any repercussions for causing months of mental harm, stress, anxiety and PTSD with her bullying behaviours, harassment and for blatant rule breaking.[57]He went on to state: “Kayleigh is now having to go through an appeal process, while at the same time, I am having to go through a disciplinary, but the people who caused all of this get to go to work without a care, while still following that own rules despite being told from TL's and a COM that they cannot do what they are doing. These same people are jeopardising the business, but nothing gets done to stop them. They are sabotaging the change that is needed for the shop to survive, but nobody does anything about it. Sharon breaks yet another rule by placing bets in shop, which would result in suspension and dismissal for anyone else, but nothing for her. The stress that this has caused Kayleigh and myself is immense. My reputation as a hardworking, reliable, approachable and knowledgeable manager is getting destroyed because of this, and I will end up with a disciplinary sanction on my record. I carry a tremendous amount of guilt because I am the one who put Kayleigh in this position by pushing her to apply for the job. Kayleigh requires a tremendous amount of care and support to get through this appeal. Needless to say the fact that the company allowed this behaviour to go on for 5 months without taking any kind of interest is unacceptable. On the back of this disappointing outcome, Kayleigh will be taking the company to an employment tribunal for their lack of action and for Willie Black's response and dismissive attitude towards the severe mental distress she was put under at the hands of two William Hill employees. I've lost faith in this company. I've lost faith in the people who are supposed to be my superiors but can't act swiftly when someone’s life is put in danger by another employee. I've lost hope that there can be an acceptable and just solution to these issues. The company had a chance to send a strong message estate -wide that bullying of any kind is just not acceptable, and severe bullying of the kind that Sharon and Judith were doing will not be tolerated. Instead, the outcome is that anything is acceptable as long as nobody can see it. The company minimise and dismiss the very real and damaging experiences that victims of bullying, abuse and harassment go through by the lack of proper action. I need to support my wife and I need to support a fellow colleague and Team Leader. I've seen first-hand what Judith and Sharon’s behaviours have done to her. It will take a long time for her to get through this. She needs my support to go through the appeal process. She needs my support to go through the tribunal process. She needs my support to go through the counselling that she will require because of the months of mental trauma that Sharon and Judith put her through. I can't give her that support while I am representing a company that would allow this to happen. I can't represent a company that I have lost faith in due to their inaction. I have no choice but to resign my position as team leader at William Hill. I need to make sure that the company and the individuals involved pay for what they have done. I have to make sure that Kayleigh gets the justice that she very much deserves after what she has been through. I need to make sure that she has my undivided attention and support.”[58]On 14 September 2024, the claimant also emailed PD about the disciplinary meeting notes. He advised him that he had handed in his notice due to his utter disgust and disappointment at the way the company had handled events. He advised that he was likely still to be working when the disciplinary action was scheduled, but that it meant that any action taken would not really matter in the end. He ended the email stating that he looked forward to hearing from PD with details of the disciplinary. Post resignation[59]RW treated the claimant’s resignation email as what was regarded by the respondents as a ‘resignation in haste’. She raised an ER (employee relations) file on it to which she uploaded the letter and sought advice from ER. There was discussion about how the concerns raised could be dealt with and the options of trying to move the claimant or put him on paid leave were discussed. The options of moving the claimant in the Borders area were very limited. RW took the view that the claimant’s resignation email identified some clear concerns about needing to support his wife; she took the view that and the claimant’s continuing to work for the respondents was difficult and that he considered it to be a blocker to him providing that support to KA. RW was not in a position to make the decision to put the claimant on paid leave on her own. This was a decision which required the agreement of ER.[60]On 20 September 2024, RW emailed the claimant asking what notice he intended to give and confirming that the notice period for a TL was one month. The claimant replied asking if he could give two months’ notice. He stated if it just needed to be one month to let him know. The claimant emailed again on 22 September 2024 asking if he could work till the end of November.[61]RW was on annual leave from after her shift on 20 September 2024 until 1 October 2024. When she returned from leave on 1 October 2024, she found that ER had given authority for that the claimant be put on paid leave and had drafted a letter to that effect.[62]RW responded to the claimant on 1 October 2024 in an email sent at 11.33am advising she would need to check with HR about the resignation date. She also enclosed a letter formally acknowledging the claimant’s resignation and advising as follows: “Due to the reasons offered in your resignation, where you state your priority is to support your partner, we would like to support you with your decision by asking you not to work during your notice period but to remain on paid leave for the duration of your notice. During this period of paid leave, we would request that you remain available within reason and during your normal working hours/days in case I need to contact you. During this period you should not attend any of the company's premises and you should not contact any of the company's customers, suppliers or employees, except for your colleague forum/trade union representative for the purposes of cleaning advice, myself, in my capacity as your line manager, and/or our payroll HR Admin Team, if you have any queries regarding your resignation and/ or pay.”[63]It was standard practice for an employee being put on paid leave to be asked to remain away from the LBOs and not to contact staff or customers.[64]RW confirmed that the notice period was one month, however as the claimant had offered two months, it was confirmed that this would be accepted and the last date of employment would be 14 November 2024.[65]RW went on to say that the claimant’s grievance was being investigated and that an outcome would be provided even if this was after the date of termination of his employment. He was advised that he was welcome to contact RW as his grievance manager during his period of paid leave.[66]The last date upon which the claimant worked was 6 October 2024. The claimant also submitted an early cancellation notification to ACAS on that date.[67]On 7 October 2024, the claimant submitted a grievance regarding the decision to put him on paid leave during his notice period. He stated that KA was due to return to work, stating it did not make sense for him to stay at home. He also complained about not being allowed to enter the premises, or contact other employees or customers.[68]RW but took the view that nothing had changed. The elements of support which the claimant identified that he required to give KA , which were the appeal and tribunal process and to go through counselling, were not contingent on her being off work ill, and the claimant had identified difficulty in continuing to work for the respondents which was a blocker to his providing this support. 30 September 2024 email/Environmental Health visit[69]A complaint by an unidentified person was made to Environmental Health (EH) about cakes / table being sold in Peebles LBO.[70]On 30 September 2024, the claimant sent an email to WB and RW which contained the following: “As you know, for almost 2 years now the Peebles staff have been distributing homemade food to customers, without the shop having a licence to do so. They had also been selling homemade tablet and cakes, effectively conducting another business inside the shop. I think it has been agreed by everyone that we are not allowed to do that by law, and it's against company policy. To compound the situation further, the fact that the food did not have ingredients or allergens listed is also a violation of the law.”[71]The email went on to state that donations or tips were being taken for the food, and to question how the individuals involved were still allowed to work for the respondents.[72]The e-mail advised that the claimant had been told that Environmental Health (EH) were aware of the situation and there confirmed that the person who notified them told them that Peebles did not have a food licence.[73]RW received this on 1 October 2024. She created an ER file and uploaded it.[74]On 1 October 2024, an Environmental Health officer visited the Peebles shop, and found that cakes were being given out. No action was taken by Environmental Health against the company, but they were told that this had to stop.[75]On or around 1 October RW became aware thar Environmental Health (EH) had visited the Peebles LBO. RW contacted EH on 22 October 2024 to ask them for a report about this, as they had not submitted a report to the respondents.[76]Disciplinary action was subsequently taken against SW as a result of supplying food from the shop, but it was not dealt with by RW. Claimants Grievance outcome[77]RW conducted an investigation into the claimants grievance, interviewing a number of individuals including AJ and WB. She took a statement from WB’s on 10 September in which he said that he did not specifically ask the claimant for advice, but told him what the respondents were planning to do. He said that the claimant did not want to move permanently to Hawick and checked he would get expenses back. He also said that the claimant was fine with the proposal. In response to a question as to whether he discussed KA’s mental health, he was noted as saying that he could not recall specifics but that it must have come up in general terms as he ( the claimant) was supportive of what we were doing.[78]RW also interviews AJ on 18 September as part of her investigation into the claimant’s August grievance. She told JA that the claimant had raised a point about him mentioning that Peebles was the talk of Scotland, and asked if he could recall this and if so in what context was it said. JA denied having said that Peebles was the talk of Scotland; he said that he never mentioned it at all and the only thing he could refer to was a conversation with a member of staff during as part of his investigation of causes related to Peebles. He had told all involved in the investigation that it should remain confidential. He expressed the view that his personal belief was that if the situation in Peebles had become common knowledge, then that came from the claimant. He confirmed that he only discussed anything to do with Peebles during an investigation on another case.[79]The outcome of the claimants grievance was delivered on 15 October 2024. Note on Evidence[80]There were some relevant conflicts in the evidence, albeit that some the dispute centred around a difference between the claimant and the respondent’s witnesses as to their perception of the same events. For example, the claimant felt justified in sending a message to SA in terms which he did about what he considered to be her bad behaviour, while the respondents considered this message to warrant disciplinary action.[81]The claimant’s evidence on a number of occasions strayed into complaints about how the respondents had dealt with his KA. For example, he complained that they did not take any steps to force her to take time off work after she attended hospital following the incident at work in June 2024. He partially blamed WB for the situation because of a mediation which he had conducted with KA and JW, which the claimant did not consider had been handled well. He considered that there had been a delay in obtaining an occupational health report for KA. The Tribunal formed the impression that the claimant’s concern for his wife was a very significant motivator for his actions. It also formed the impression that he held a very strong view that she had been treated very badly by JW and SA and by the respondents generally and this affected his view of matters to a very considerable degree, and to such an extent that it impacted his insight into matters. An example of the claimant’s lack of insight was found in that it was only after being pressed in cross examination, while maintaining his message to SA described the way she had behaved, he conceded that on reflection he should maybe not have used those words. He still refused to accept that the message amounted to bullying and harassing behaviour. The tenor of this message and indeed the grievances lodged by the claimant also suggested that he was motivated in his actions while in employment by his dislike of SW and JW, in all likelihood as a result of the manner in which he considered they had treated KA, and a desire to see them ‘punished’. While the Tribunal did not conclude that the claimant sought to deliberately mislead, it did consider that this dynamic influenced the claimant’s perception of events and coloured his evidence on occasion adversely impacting his credibility.[82]KA. KA’s evidence was not relevant to the majority of the matters this Tribunal had to determine at this hearing, in that she gave evidence about the impact of work issues on the claimant. The Tribunal formed the impression that KA’s evidence in so far as it was relevant, was impacted by her perception of having been wronged and that on had an impact on her insight and to a degree on her credibility .There was one relevant matter upon which there was a conflict with KA and AJ’s evidence, which is dealt with below.[83]WB The Tribunal found WB to be generally a credible and reliable witness. It is fair to say that on occasion, he could not recall specifics of what had been said and done, but if anything this tended to enhanced his credibility in that it appeared to the Tribunal that his recall of matters was commensurate with the passage of time, and with the fact that he was dealing with a large operational activity of which this was only one part.[84]The claimant in his submissions, attacked the credibility of WB on the basis that his evidence at the Tribunal was inconsistent with this the statement he gave to RW as part of the claimant’s grievance investigation. In particular, he submitted that WB in his evidence falsely claimed that the claimant was unsupportive of KA’s move, but that his written statement WB on more than one occasion stated that the claimant supported the move.[85]Nothing turns on this conflict, however the Tribunal dealt with it as it considered it as it raised an issue of credibility. In his oral evidence. WB stated that the claimant was quite resistant to the move and did not want to move. He said he was surprised that the claimant was resistant to the move to Hawick, because it was for his wife. WB’s written statement was to the effect that the claimant’s response to the proposal that he move to another LBO was very much around he did not want to permanently move to Hawick and that he checked if he could get travel expenses. WB denied asking for advise on KAWB’s statement goes on to note, when asked if KA’s mental health was discussed, that he was sure it came up in general terms ‘as he (the claimant) was supportive of what we were doing’.[86]It therefore seemed to the Tribunal that there was not in reality much between the two positions. It was never suggested by WB that the claimant did not agree to the move, and his written statement identifies a reluctance to move permanently. It does not say that the claimant supported his move, just that he was ‘supportive of what we were doing’. It appeared to the Tribunal that the claimant was seeking to put something of a gloss on matters when he suggested that there was a material inconsistency in WB position, and that WB’s evidence before the Tribunal was deliberately designed to align with the respondent’s litigation strategy.[87]There was a material conflict on whether WB had asked for the claimant’s advice about where KA should work and tasking him with passing on that information to her on 10 June 2024.[88]It was the claimant’s evidence that WB asked him for advice as to how to deal with the situation with KA, and discussed what the respondents were going to do going forward. WB had a proposal which was that he wanted the claimant’s thoughts on. That was that he wanted the claimant to temporarily move to Hawick and to leave the Peebles shop out of it completely . The claimant said that he advised him that this was not a good idea because Peeples and Galashiels were buddy shops. The claimant’s evidence was that his own suggestion was that he, the claimant, moved to Peebles in order to eliminate any conflict between the two shops. WB told him that did not want anyone in the Peebles shop because it was losing money. The claimant said that WB asked him advice on KA’s mental health and what could be done to make work better for her going forward. He said he told WB that his wife was being bullied, and WB told him that he could not make those kinds of allegations.[89]On analysis, it appeared to the Tribunal that potentially there was not much between very much between the claimant and WB as to what was discussed at the meeting. What the claimant categorised as a negotiation on the part of WB, was in WB’s view, as he said, his exercising emotional intelligence in how he approached the claimant’s move with him and his ‘buy in’.[90]The relevant element of conflict related to whether WB had asked for advice on where KA should work and asked the claimant to pass on information about a shop move to KA.[91]On balance, the Tribunal was satisfied that WB had not done either of these things. WB gave convincing evidence to the effect that he had early in his career he had crossed a line in dealing with a husband and wife who were coworkers, and he was alive to the difficulties that this was likely to occasion and therefore was careful not to do so. Nor in the tribunal's view did it seemed plausible that WB would have asked the claimant for advice about where KA should work or how her mental health issues should be dealt with, given that the claimant was not in a position to give any kind of medical input into the matter. WB’s evidence on this was consistent with his statement to RW which noted him saying that he did not specifically ask the claimant for advice, but told the claimant what the respondents were planning to do.[92]Further, in his evidence in chief, while the claimant complained that WB had not even asked how KA was, and that the respondents had not forced her to take time off after the 9 June 2024 incident, the claimant did not give evidence to the effect that WB had asked him to pass on information to KA about a shop move.[93]There was some inconsistency between WB and RW’s evidence as to what was discussed between them about KA’s move. That was to the extent that when asked if she was aware that WB had passed a decision to KA to her, RW said; ‘No, obviously I had the intention of speaking to her on 15 June’. However, in cross examination RW also said that it was the intention for her to tell KA about the move on 15 June 2024, but she could not confirm if KA found out beforehand. It therefore appeared to the Tribunal that again there was not a great deal between the evidence of WB and RW on this, in that they both said that it was the intended RW would tell KA about the move.[94]If KA did find out before 15 June, it did not follow from that that WB must have asked the claimant to pass this information to KA. Nor did it follow, as the claimant seemed to suggest, that because RW did not speak to KA till 15 June, that WB had asked the claimant to tell KA about the move.[95]JA. The Tribunal formed the impression that JA was a credible and reliable witness, whose recollection of events was affected only to the degree that was commensurate with the passage of time. It found JA evidence convincing as to the approach he took to the investigation of KA’s grievance. That was to identify the witnesses he considered relevant, having obtained information about the grievance from KA and thereafter to proceeded to interview them.[96]KA gave evidence to the effect that the claimant’s name was brought up at least twice in her grievance meeting with AJ. She said that the reason it was brought up was that work issues were affecting her home life, and that the claimant was an audible witness to the incident in the Peebles shop ( on the telephone when the incident had occurred). The AJ did not accept that KA told him that the claimant an audible witness to the incident. The Tribunal preferred AJ’s evidence that the KA had not mentioned the claimant was a witness. It found convincing AJ’s explanation that if that if he had been told the claimant was on a telephone call when the incident occurred he would have asked about that. The Tribunal formed the impression that, as he said in his evidence, had AJ considered the claimant had been a relevant witness he would have had no hesitation in interviewing him; his evidence was that he had in the past interviewed husbands and wives in conducting investigations. It was plausible that this was the case. AJ took the time to interview 5 witnesses, and it appeared on balance unlikely to the Tribunal that AJ would not have interviewed the claimant if he had considered him a relevant witness to an allegation in the grievance. This conclusion is further supported in that JA though highly of the claimant as an employee, which tends to suggest that he would have had no hesitation in interviewing him, had he considered it relevant to do so.[97]AK’s evidence to the effect that the reason AJ did not interview the claimant was because of their marriage and that he “simply did not care enough” to do so was her subjective opinion on matters.[98]The claimant attacked AJ’s credibility on the grounds that his evidence relied on a document which had not been produced to the Tribunal. It was not entirely clear what document this referred to, however the Tribunal understood the claimant to be referring to documents arising from KA’s grievance. That grievance is the subject matter of another Employment Tribunal claim, and no order for disclosure was made as part of the extensive case management which preceded this hearing. Further, it was unexplained what the document referred to by the claimant contained, which would have impacted JA’s credibility, and the Tribunal drew no adverse inference from the fact that the respondents had not produced KA’s grievance documents.[99]Some time was taken up asking JA questions in cross examination about the content of his statement to RW on 18 September 2024 which was part of her investigation of the claimant’s grievance. The claimant's position seemed to be that JA should have interviewed him as he was named in KA’s grievance outcome, in connection with spreading rumours. The claimant suggested that JA had found him guilty of spreading rumours as part of that outcome. There was nothing however to support the conclusion that JA had done so. He denied having done so to RW in the statement he gave and he denied it convincingly before the Tribunal.[100]RW. The Tribunal formed the impression that there were some issues with RW’s reliability in that she could not recall all of the detail of some matters she was asked about. This, however, did not impact the Tribunal's assessment of her credibility. The Tribunal formed the view that RW was truthful in her evidence, accepting when she could not remember things and making appropriate concessions including on occasion when they did not necessarily reflect well on her. Examples of concessions made include that she accepted that she did not further investigate an allegation that SW and JW were still selling food which the claimant made on 26 August 2024 at the grievance meeting; and she accepted that the length of time between the claimant’s first grievance and the grievance meeting was not ideal. She accepted that an ER case file was created in which she uploaded the claimants resignation email and that she had ER advise on this; she accepted and that ER would have given her advice on how to deal with SA and JW after her fact finding with them. She did not suggest that she had told the claimant about SA’s grievance on the 25th , saying that she could not recall when she told him about it. Overall the Tribunal formed the impression that RW had been placed in a situation where she had to deal with a number of staff issues of some complexity, and she attempted to tell the truth about her involvement in matters to the best of her recollection.[101]A significant point arising from RW’s credibility was her evidence about why the claimant was put on paid leave, which is dealt with below in the Tribunal’s Consideration. Submissions[102]Both parties produced written submissions which they had the opportunity to supplement with oral submissions. In the interests of brevity, these are not set out here in full, but are referred to below where relevant and necessary.Consideration
[103]The parties had produced an agreed list of issues, as set out above, which the Tribunal had to determine in its consideration of each claim. The first matter on the LOI is the issue of time bar in connection with the discrimination and protected disclosure detriment claim; this included consideration of whether there was a continuing act. Given this is an issue, the Tribunal considered that the best approach was to determine the merits of these claims first in order to determine if there was a continuing act, which would in turn be relevant to the issue of time bar. Unfair dismissal claim[104]The Tribunal began by considering the unfair dismissal claim.[105]Section 95 of the Employment Rights Act 1996 (the ERA) provides:(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) and section 96, only if)— (a) the contract under which he is employed is terminated by the employer (whether with or without notice), (b) he is employed under a contract for a fixed term and that term expires without being renewed under the same contract, or (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.(2) An employee shall be taken to be dismissed by his employer for the purposes of this Part if— (a) the employer gives notice to the employee to terminate his contract of employment, and (b) at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer’s notice is due to expire; and the reason for the dismissal is to be taken to be the reason for which the employer’s notice is given. The claimant’s case is that there was a dismissal under section 95 (1) (c) of the Employment Rights Act 1996 (the ERA); what is commonly referred to as a constrictive dismissal. In considering a claim of constructive dismissal, the Tribunal reminded itself that in order to succeed in a constructive dismissal claim the employee must establish that:• there was a fundamental breach of contract on the part of the employer that repudiated the contract of employment• the employer’s breach caused the employee to resign, and• the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.[106]Into every contract there is an implied term of mutual trust and confidence.[107]The Tribunal considered each of the breaches of contract relied upon by the claimant, as set out at point 5 of the list of issues. It considered these both as individual breaches, and then as matters which are relied upon cumulatively as constituting a breach of the implied term of trust and confidence which exists in every contract of employment. (1) WB asking the claimant for advice about where KA should work and tasking the claimant with passing that information on to his wife on 10 June 2024.[108]For the reasons given above, the Tribunal did not conclude as a matter of fact that this happened. (2) The respondents failing to remove the claimant from having contact with the individuals accused of bullying KA between June and July 2024.[109]The individuals accused of bullying KA (SA and JW) worked at the Peebles LBO. The claimant did come in contact with the Peebles LBO as the Galashiels LBO was buddied with Peebles. The Tribunal did not conclude that the respondent’s failure to remove the claimant from having contact with SA and JW constituted a breach of a contractual obligation, including the implied term of mutual trust and confidence.[110]The claimant did not suggest that he should he removed from such contact at the time due to health and safety or any other concerns. He could have requested a change in buddy shop at any time, but did not do so until sometime in August. When this request was made, it was granted. Indeed, it seemed to the Tribunal that the claimant sought to actively engage with JW, when he prepared two file notes for her on 1 July 2024 and with SA when he sent her a WhatsApp message on 18 June 2024. The claimant did not accept that there were any issues working him with SA, saying that he and SW had worked together with no difficulty after the message had been sent as part of SW grievance investigation. He did not ask to be removed from having contact from SW and JW with he when he raised his grievances against them in August 2024. His evidence was that suggested to WB that he should be moved to the Peebles shop in June 2024. None of this suggests that at the time the claimant wished to be removed from having any contact with JA and SA. That being the case, even if the respondents had been acting in breach of a contract term, there was nothing to suggest that that was the reason, or any part of the reason why the claimant left his employment. (c) AJ refusing to take a statement from the claimant during the investigation into KA grievance between July and September 2024.[111]For the reasons given above, the Tribunal do not conclude that JA refused to take a statement from the claimant. It was satisfied that he did not consider that it was necessary to take statement from the claimant and that he had reasons for concluding that. The Tribunal was satisfied that the claimant was not identified as a perpetrator of the behaviour complained of, or as relevant witness to it. On that basis, JA had no reason to conclude that interviewing the claimant was necessary or relevant to his investigation of the grievance. In his submissions, the claimant refers to a document which was not disclosed from the KA’s grievance. However, and it was unexplained in KA’s evidence, how this document this would have impacted the position. The claimant did not ask JA if he could give him a statement. (d) The Respondent taking no meaningful action regarding the Claimant’s alleged whistleblowing complaints by not holding a meeting with him in relation to the complaints of 1 July 2024 until 26 August 2024 and not taking any disciplinary action against the alleged perpetrators in respect of the sale of food;[112]The Tribunal concluded that the respondents did act on the complaints made on 25 June and 1 July .RW met the claimant to discuss the complaint on 7 July 2024. She then met with SA and JW on 9 July 2024 , interviewing them separately to carry out an investigation into what was alleged. She was satisfied that SA and JW had been selling cakes and tablet. She was told by SA and JW that they would stop selling or supplying this food. It was not on the face of it unreasonable for RW to accept the undertaking given by the employees. In light of this undertaking, she decided not to instigate disciplinary action against them. The respondent therefore did not fail to take meaningful action in relation to is the whistleblowing complaint in that they investigated what was alleged and took action in order to prevent it happening again, even if it did transpire that the employees concerned continued to provide cakes and tablet to customers. It was not on the face of it unreasonable for RW to accept the undertaking given by the employees. The fact that the respondents did not take the disciplinary action or meet out the punishment which the claimant thought SA and JW deserved, did not mean they failed to take meaningful action, and was not a breach of a term of the claimants contract of employment or of the implied term of mutual trust and confidence.[113]The claimant’s grievance of 1 July 2024 was dealt with on 26 August 2024, but the whistleblowing complaint of 1 July had been dealt with before that date. RW confirmed to the claimant that it had been dealt with at the grievance hearing on 26 August. In response to being told that the claimant said that as far as he knew, SA and JW were still giving out homemade cakes and they shouldn't be doing this due to risk of allergies. The claimant relied on the fact that RW did not investigate this in his submission, however this was not an issue for the tribunal in terms of the agreed list of issues for the purposes of the constructive dismissal complaint. (e) the Respondent not giving any support regarding the impact of Kayleigh Allison’s situation on the Claimant during August and September 2024;[114]The support which it is said the respondents failed to provide was unspecified. It emerged in the course of the hearing that the claimant’s position on this was that he had to travel to collect his wife from work, which involved him in additional travel time and cost and that he was not reimbursed for this. Even if that has been a matter before the Tribunal , it could not have found that failure to pay travel expenses incurred in picking up another employee from work (even if that employee was a close family member) amounted to a breach of a term of the contract of employment, including the implied term of mutual trust and confidence) which existed between the claimant and respondent. The Tribunal was not taken to any express term of the contract which provided for such payment and there was nothing to suggest that there was any basis for implying it into the contract.[115]In his submission, the claimant’s position was that despite knowing the claimant was distressed, and that his wife was suffering severe bullying, and that he had raised serious concerns, the respondents provided no support. He submitted they delayed hearing his grievance for 9 weeks; failed to communicate; and ultimately put him on paid leave on 1 October 2024.[116]Clearly, the last matter it fell was after the date of resignation and therefore could not have contributed to any breach of contract.[117]The respondents would have been aware of issues in the Peebles shop at the latest by 10 June 2024. There was no evidence to support the conclusion that the claimant had sought help prior to his grievances of 1 July 2024. That grievance contained a disclosure of information about SW and JW selling cakes, and complaints about the manner in which KA had been treated by SW and JW, with an indication that she was going to pursue her own grievance or complaint. Although the claimant stated in that grievance that he was demanding help, it was unclear what help he was seeking for himself as opposed to for KA.[118]There was a delay in hearing the 1 July 2024 grievance; it was held on 26 August 2024 along with the Claimant’s second grievance of 22 August. There was as RW put it, a lot going on. The claimant had raised two grievances. RW had net with him on 7 July to discuss some of the matters in the 1 July grievance. SW had also raised a grievance which sparked a disciplinary investigation. In in these circumstances, the Tribunal did not consider that the delay of itself meant that it could be concluded that there was a failure to support the Claimant. (f) the Respondent failing to take disciplinary action in respect of Kayleigh Allison’s grievance and partially rejecting her complaints because of factual errors in the investigation which arose as a result of the Respondent’s failure to interview the Claimant.[119]In terms of the Claimant’s contract of employment, there could be no contractual obligation between the claimant and respondent arising out of how the respondent dealt with a grievance lodged by an individual who was not a party to the contract. The contract which is relevant here in the contract between the Claimant and his employer, and even if there had been factual errors in the investigation of KA’s grievance as a result of the Respondent’s failure to interview the Claimant which resulted in the partial rejection of her claims ( and the tribunal did not conclude that there were such errors) , this could not amount to the breach of any term of the contract between the claimant and respondent.[120]The specific complaint of discrimination on the grounds of marriage is dealt with below.[121]The issue which the Tribunal is asked to determine firstly at 4 (a) is whether the respondents breached the claimant’s contract of employment. Taking the matters relied upon separately or cumulatively, the Tribunal did not conclude that there had been a fundamental breach of the claimants contact of employment , including the implied term of mutual trust and confidence.[122]Even if the Tribunal is wrong in that conclusion, it would not have concluded that the claimant resigned in response to such a breach of contract. The claimant submitted that he was not concerned about disciplinary procedures against him, and pointed to the fact that his resignation e-mail explicitly stated that he was happy for a disciplinary procedure to go ahead. He also referred to the fact that his resignation e-mail stated: “I don't want to leave I just have no choice in the matter.” This, he submitted, proved that he did not resign to avoid discipline.[123]The Tribunal considered the reason why the claimant resigned. In doing so it Tribunal took into account the claimant’s evidence that the catalyst for his resignation was the fact that KA’s grievance had not been upheld. This outcome was delivered on 10 September 2024. KA did not resign immediately on to receiving it. He said that after it was received, he spent time from the 10th to the 14th September the drafting his resignation email.[124]However, the claimant attended his continued disciplinary investigation on 13 September 2024 with PD. It was only after he was told by PD that the matter was going to proceed to disciplinary action, that he submitted his resignation. PD told the claimant that he would face disciplinary proceedings on 13 September 2024 and he resigned on 14 September 2024. The Tribunal attached significant weight to this sequence of events. Further, the claimant’s resignation email refers to the fact that he was facing disciplinary charges while SW and JW were not, and as he saw it continued to get away with their bad behaviour. The Tribunal concluded that, on balance, that the reason for the claimant’s resignation was that he was not prepared to be subjected to disciplinary proceedings, which were likely to result in some kind of disciplinary sanction against him, even if not dismissal.[125]The effect of the Tribunal’s conclusions is that it did not conclude that the claimant was dismissed in accordance with section (5(1)(c ) of the ERA and claimant’s claim of constructive unfair dismissal fails. Automatic unfair dismissal – section 103 of ERA.[126]The Claimant also brings a claim of automatic unfair dismissal on the grounds of having made protected disclosures under Section 43 A of the ERA.[127]The first matter the Tribunal it had to determine is whether any of the disclosures relied upon in the LOI were protected disclosures, as defined by Section 43A of the ERA. Section 43A of the ERA.[128]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.[129]Section 43B: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[130]The Tribunal understands that the disclosures relied upon are said to qualify for protection under Section 43B (1) (d).[131]The Tribunal keep in mind that a disclosure can be made orally or in writing.[132]For the statements relied upon to amount to qualifying disclosures, they must have sufficient factual content to be capable of tending to show that the health or safety of any individual has been, is being or is likely to be endangered. Further that in order for the disclosures relied upon by the claimant to qualify for protection, the disclosure must, in the ‘reasonable belief’ of the claimant:• be made in the public interest, and• tend to show that the health or safety of any individual has been, is being or is likely to be endangered.[133]The protected disclosures relied on by the Claimant are:a. oral and email communications by the Claimant to Ruth Wilson on 24 June 2024 regarding the selling of food with no licence, no list of ingredients and the sale of food being unauthorised business in the Peebles licensed betting offices; andb. oral communications with Ruth Wilson on an unspecified date.[134]There was no evidence as to what oral communications exactly were relied upon, other than that the claimant had told RW that SW and JW were selling cakes in the Peebles on 24 June 2024. For reasons which are dealt with below, the Tribunal was satisfied that the claimant’s verbal disclosure and his email of 25 June 2024 did amount to protected disclosure c. an email to Willie Black on 1 July 2024;[135]The Tribunal considered this email of 1 July and the email of 25 June 2024 and conversation of 24 June 2024 amounted to protected disclosures. The relevant parts of both emails are set out in the findings in fact. The Tribunal was satisfied that the conversation and emails disclosed information that SA and JW were selling homemade food in contravention to ‘the law on selling food and to our licence’ or regulations. An issue around the lack of information about food allergens was raised.[136]The Tribunal did not understand that issue was taken by the respondents to the fact that the conversation of the 24 June 2024 or the documents of 25 June 2024 and 1 July 2024 did disclose information of this nature.[137]Issue was taken however with whether the claimant had a reasonable belief that the disclosure was made in the public interest. Mr MacDougall submitted that there was no credible basis upon which the claimant could have a reasonable belief that the disclosure was in the public interest. In support of this position, he pointed to the fact that the claimant, on his own evidence, had been aware that cakes and tablet continued to be sold after he had given instructions that they should not be sold, but that he did nothing about it. If he had genuinely been concerned about public safety, he would have acted earlier. The fact that he did not Mr McDougall submitted pointed away from their being a reasonable belief.[138]Rather, Mr MacDougall submitted the claimant choose to make the disclose on 24 June 2024, the day SW raised her grievance. Mr McDougall invited the Tribunal to reject the claimant’s evidence was that he did not know about this grievance had been lodged. He submitted it was clear that the claimant knew about the message sent to Ms Ashworth on 18 June 2024 because he sent it, and one could readily expect a complaint to be made following upon that type of act. Beyond that, and importantly, the Claimant could not give any evidence about any other ‘trigger event’ which caused him to make the report on the day he did. It is submitted the inescapable inference from this evidence is that the Claimant did know - or certainly ought to have known - about the grievance.[139]Mr McDougall submitted the ‘disclosure’ was made for purely self-serving purposes with no reasonable belief that disclosure was in the public interest.[140]The Tribunal considered if it was in the reasonable belief of the claimant that the disclosure was made in the public interest. That is not an not an objective question of what the public interest is, and whether a disclosure served it. What the Tribunal has to consider is:a. what the claimant considered to be in the public interestb. whether the claimant believed that the disclosure served that interest, andc. whether that belief was reasonably held.[141]Tribunal was satisfied that the disclosures relied upon satisfied each of these points. The email identified the claimant’s concerns about the health and safety implications of selling food without a licence and failing to provide information about allergens to customers buying the food. Even if there was no trigger event, as alluded to by Mr MacDougal, the inclusion of this information supported the conclusion that the claimant subjectively held the belief that health and safety was likely to be endangered, and that the claimant had a reasonably held belief that the disclosure was made in the public interest and that it served the public interest.[142]In reaching this conclusion the Tribunal take into account that claimant did not make his first verbal disclosure until 24 June 2024, the day of SW’s complaint about the claimants message, even although he knew the sale of food had been taking place, and that he made his disclosures as part of his grievance about the behaviours of SW and JW.[143]There was insufficient evidence upon which the Tribunal could conclude that the claimant was aware that SA had lodged a grievance on the 24 June. RW could not recall when she first told the claimant about it and he was not notified about it in writing until sometime later. However, the tribunal considered it highly likely that the claimant was motivated to make the disclosure, if not because he was aware of the grievance, because of his ongoing reaction to what he considered was the very bad behaviour of SW and JW towards KA. The fact that the claimant was motivated to make the complaints out of ill will against the individuals involved did not mean that he could not reasonably believe the disclosure to be in the public interest. While motive might become relevant to the determination of any question of good faith, it did not mean that the claimant could not believe subjectively on objective grounds that the disclosure was in the public interest, d. an email to HR on 6 July 2024 The Tribunal was not taken to an email to HR on 6 July. e. An email to the Respondent’s whistleblowing service on an unspecified dat., There was no evidence about this document before the Tribunal.[144]The Tribunal concluded that the claimant made public interest disclosures prior to the termination of his employment[145]The question the Tribunal had to answer in connection with the claim of automatically unfair dismissal, was whether the claimant was dismissed under section 103A of the ERA. Section103(A) provides: (1) 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.[146]In considering the claim under section 103A the question the Tribunal has to ask itself is whether the protected disclosures relied upon were the principle reason the employer committed the fundamental breach of contract which caused the employee to resign.[147]For the reasons given above, the Tribunal did not find that the respondents had fundamentally breached the claimants contract of employment; it did not conclude there had been a dismissal in terms of section 95 of the ERA. The Tribunal did not conclude that he was dismissed because the claimant made a public interest disclosure and the claim of automatically unfair dismissal under section 103A does not succeed and is dismissed. Detriment on the grounds of a protected disclosure[148]The first question the Tribunal has to consider is whether the claimant made any disclosures which amounted to protected disclosures (as defined by section 43A ERA) during the course of his employment?[149]The protected disclosures relied on by the claimant are the same disclosures which he relied upon in connection with the claim of automatically unfair dismissal and therefore the Tribunal’s conclusion in respect of the disclosures relied upon are as set out above.[150]The Tribunal having concluded that the claimant had made a protected disclosure and went on to consider the detriment claim.[151]Section 47 B of the ERA provides: (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.[152]The issue for the Tribunal is did claimant suffer any detriment on the grounds that he made a protected disclosure?[153]That has two elements. Firstly, was the claimant subjected to a detriment. Secondly, was the claimant subjected to that detriment on the ground that he made the disclosure relied upon.[154]The detriment(s) relied on by the Claimant are: a. no meeting was held to discuss his alleged 1 July 2024 disclosure until 26 August 2024; and[155]The Tribunal did not conclude as a matter of fact that no meeting was held until 26 August to discuss the disclosure which the claimant made on 1 July 2024. It was satisfied that a meeting was held by RW on 7 July 2024 at which she discussed the claimant’s disclosure. She investigated it further on the 9 July and took what she considered to be the necessary action to put a stop to SA and JW selling cakes and tablet in Peebles, which was the matter which the claimant had raised. The Tribunal therefore did not conclude that the claimant had been subjected to the detriment complained of. b. placing the Claimant on paid leave from 1 October 2024 during his notice period.[156]The Tribunal was satisfied that putting the claimant on paid leave during his notice period amounted to a detriment. Detriment should be assessed from the viewpoint of the worker. The claimant had not asked to be put on paid leave and did not want to be on paid leave.[157]The Tribunal was therefore satisfied that the claimant made a disclosure and that he had been subjected to the detriment complained of. The burden of proof shifts to the respondents to show that that claimant was not subjected to that detriment on the grounds that he made the disclosure.[158]The Tribunal therefore considered whether the respondents had established that the claimants protected disclosures had not materially , in the sense of more than trivially, influenced their decision to put him on paid leave.[159]In determining this this the Tribunal considered the evidence before it including any inference it could relevantly draw from the primary facts found.[160]In this regard the credibility of RW was a significant point. The Tribunal accepted her evidence that she considered the claimants resignation email identified what the respondents termed a resignation in haste; that she sought ER advise ;and that there was a discussion about how best to deal with it. The Tribunal accepted RW did conclude that the claimants continuing to work in the business was as she put it, a blocker to him supporting his wife. It is supported in that conclusion in that the claimants resignation email makes it clear that KA requires support and that he cannot give her support while representing the respondents. He lists in that email that KA will need his support to go through the appeal process, the Tribunal process, and to go through mental counselling. RW accepted in cross examination that she knew the impact of her grievance outcome on KA , and that the claimants resignation email talks about stress to both him and KA. These were all factors which on balance rendered it plausible that the decision to put the claimant on paid leave for the remainder of his notice period was motivated by the consideration that the claimant could not keep working with the respondents if he needed to support his wife. This conclusion is fortified by the fact that the claimant’s resignation email made it clear how difficult he found to continue to represent the respondents.[161]The claimant’s position was that he was put paid leave so that he could not complain anymore , and so that that everything could be swept under the carpet. However it remained open to the claimant to complain, which he did, when he was on paid leave, and the respondents did not in fact sweep the issue of cake/ tablet distribution under the carpet. Following the claimants email of 30 September the EH visit there was disciplinary action and a disciplinary sanction imposed on SA.[162]The Tribunal also considered the fact that RW had not followed up on the claimant telling her in the course of the grievance hearing that SA and JW were still supplying cakes. The Tribunal did not consider that a great deal turned on this . The claimants grievance was extensive , and RW considered that she had dealt with this issue earlier, as she advised the claimant. . In the course of the grievance hearing she actively enquired if anything else was happening, which was not suggestive of a desire to sweep things under the carpet. Although the claimant suggested that cakes were still being given out, he also said in response to the query if anting else was happening; ‘not really’ which was not suggestive of a the need for further immediate action on RW’s part. Further the respondents dealt with the issue again after the claimant’s 30 September email and EH visit. It appeared on the basis of this that it was likely to be the case that the respondents did want to put a stop to employees selling or supplying cakes, and the oversight of RW to follow up on what emerged about this as a part of an extensive grievance , did not give rise to an inference adverse to the respondents.[163]The claimant also submitted that the respondents explanation of ‘support’ was contradicted by the facts. KA was due to return to work the following day; he had supported KA for months without being placed on garden leave; he had not asked for garden leave and he was banned from the respondents premises. The Tribunal however accepted that RW considered the support the claimant identified was not necessarily linked to KA’s absence, given the list of matters in the claimant’s email where he identified where KA required support, and the Tribunal drew no adverse inference from the fact that KA was due to return to work. Nor did it draw any inference from the fact that the claimant had supported her for mouths without being placed on garden leave. That may have been the case, however but the claimant’s resignation email identifies to the respondent that he felt he needed to support KA , identifying the areas where this support was considered necessary, and the tribunal could draw no adverse inference from the fact that he had worked and provided support prior to KA being on paid leave. The Tribunal also accepted RW evidence that it was standard practice to ask an employee who was put on garden leave not to go into the premises or contact staff or customers and the tribunal drew no inference from the fact that this was contained in the letter of 1 October.[164]The claimant made submission with regard to the timing of matters, which he submitted were damming to the respondents. He pointed to his email of 30 September reporting concerns about selling food and advising that a report had been made to Environmental Health. On 1 October there was a EH visit to Peebles and on 1 October he was placed on paid leave, which he submitted was not a coincidence.[165]The Tribunal considered what inference could be drawn from the timing of the 30 September email, the EH visit and the letter advising the claimant about paid leave for the remainder of his notice period.[166]The Tribunal accepted that as part of her role RW was unable to take the decision to put the claimant on garden leave without ER ‘s agreement, and that discussions had been taking place since around 15 September, before RW went on leave. The Tribunal accepted that by the time she returned from annual leave on 1 October ER had confirmed that the claimant could be put onto garden leave for the remainer of his notice and had provided a draft letter to that effect. That letter could not be issued until RW’s return on 1 October as there was no other COM to deal with it.. This evidence was rendered plausible by the fact that RW emailed the claimant with the decision at 11.33 am on 1 October, the day of her return to work. The Tribunal considered it was unlikely that as RW said in cross examination, she would have obtained the necessary agreement to put the claimant on paid leave in the period between staring work and 11.33am. RW accepted that she saw the claimants email of 30 September on 1 October , but that by that time she had confirmation from ER that the claimant could be put on paid leave, and the Tribunal did not conclude that this email had any impact on her decision making. The Tribunal accepted RW ‘s evidence to the effect that she had had discussions about placing the claimant on paid leave from the after 15 of September, but that the letter confirming the decision was not issued until 1 October as RW needed to have ER sanction for the decision ,and the letter could not be sent out until her return from leave as there was no other COM to deal with it. The Tribunal therefore did not draw any adverse inference from the timing of matters. Similarly the Tribunal did not conclude that the EH visit to the Peebles LBO which occurred on 1 October impacted the decision to put the claimant on paid leave, as discussions had already taken place and ER agreement to the claimant being put n paid leave had been given before RW return to work on 1 October.[167]The Tribunal considered the claimants submissions to the effect that the respondents credibility was undermined by a repeated failure to comply with orders for disclosure and a failure to supply the bundle until 27 October.[168]This case was subject to extensive case management, which dealt with the claimants applications for disclosure and with the timing of the joint bundle. No order for disclosure was made as part of that case management. The Tribunal however did consider what should be drawn from the respondents failure to produce the ER record which RW gave evidence about having created when she sought ER input from what she considered to be the claimants resignation in haste. Mr MacDougal had no explanation as to why this was not produced. The claimant put to RW in cross examination that the Tribunal was unable to see what the was said by ER in that file. RW accepted this. However she also gave evidence what had been discussed , which the Tribunal accepted , and it did not consider that the absence of the ER file was a matter from which it could infer that there had been advise or discussion which went beyond the evidence RW gave and which were adverse to the respondents position.[169]The claimant also asked the Tribunal to draw an inference from the fact that the respondents did not call PD, SA and JW, however nothing could be taken from this. It is a matter for the respondents to decide who to call, and it did not appear on the face if it it that their evidence was relevant to the matters to be determined in the agreed list of issues.[170]On balance having regard to all the evidence before it, the Tribunal was satisfied that the claimant was subjected to the detriment of being put paid leave from 1 October to the end of his notice period, but that was not on the grounds that he made the protected discloses which it found had been made. Marriage Discrimination – section 13 of the EQA[171]This is a claim brought under section 13 of the EQA, which provides: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[172]Section 23 (1) provides: (1) On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case.[173]The first issue in the terms of the list of issues is who is the correct comparator for the purposes of the claimant’s claim of direct marriage discrimination?[174]No real comparator is identified and the Tribunal understood the claimant to rely on a hypothetical comparator. In submissions the claimant identified his comparator as hypothetical employee in the claimant’s position who was not married to KA. In considering if this is a relevant comparator, the Tribunal has to consider if it was the fact that the claimant was actually married to KA, rather than the closeness of their relationship, which caused the less favourable treatment in complained of.[175]The less favourable treatment because of his marital status, contrary to section 13 of the EAQ is: (1) on 10 June 2024, Willie Black asked the Claimant for advice about where Kayleigh Allison should work. Willie Black then tasked the Claimant with passing on that information on to Kayleigh Allison.[176]The Tribunal did not conclude that, as a matter of fact, WB had not done these things and therefore this claim fails. Even if the Tribunal had concluded that WB did these things, both instances occurred beyond the limitation period and there was no evidence or argument to extend time to consider the claim; nor is there is a finding of a continuing act of discrimination and the claims would therefore be out of time.[177]The second alleged detriment is: (2) between July and September 2024, Andrew Jamieson refused to take a statement from the Claimant during the investigation into Kayleigh Allison’s grievance dated June 2024.[178]The Tribunal did not conclude that AJ had refused to take a statement. The Tribunal was satisfied that he was not asked to take a statement ; he did not refuse to do so. There was no evidence to suggest that the reason why JA did not take a statement from the claimant was because he was married to KA. The Tribunal was satisfied that the reason he did not take a statement from the claimant was because he did not consider that it was relevant to do so. The Tribunal therefore did not conclude that the claimant had been subjected to direct discrimination under section 13 of the EQA, and this claim fails.