Mr S SpearClaimantFonab Castle Hotel LtdRespondent
Before
Employment Judge McFatridgeMs Howie (instructed by Solicitor) for claimantMr Bronze (instructed by Solicitor) for respondentDate 1 October 2021
JUDGMENT
OF OPEN PRELIMINARY HEARING The respondent’s application for an extension of time to lodge the ET3 is granted. The ET3 lodged on 9 June is accepted.
REASONS
[1]The claimant submitted a claim to the Tribunal in which he claimed that he had been subject to a detriment as a result of making a public interest disclosure. He also claimed that he had been unfairly constructively dismissed in terms of section 103A of the Act and that the sole or principal reason for his dismissal was that he had made a protected disclosure. The respondent did not submit a response within the statutory period however on 21 June they applied for and were granted an extension of E.T. Z4 (WR) time for the submission of the response. In their letter seeking the extension of time they referred to an extension of 21 days however also referred to the extension being until 6 July 2021. The extension which was granted was to 6 July 2021. Had a 21 day extension been granted then the extension would have been granted to 9 July 2021. The respondent did not submit their response by 6 July 2021. On 9 July 2021 they submitted a draft ET3 together with an application for a further extension and a witness statement from Sarah Marten the case handler who had been dealing with the matter explaining how it came to be that the claim had been submitted late. Essentially, the reason for this was due to human error on the part of Ms Marten. She had worked on the basis that she had been seeking a 21 day extension which took her up to 9 July and she began working towards submitting the ET3 response on 9 July. The reference to 6 July in her initial email had simply been an error of calculation. She did not notice the error at the time and nor did she notice that the Tribunal had granted the extension to 6 July as requested rather than the 21 days which she had in her mind.[2]A preliminary hearing for case management purposes had already been fixed for 16 July. On 13 July an Employment Judge decided that this be converted to an open preliminary hearing to deal with the issue of whether or not a further extension of time should be granted to 9 July so as to enable the ET3 to be accepted.[3]At the hearing the respondent tendered the witness statement of Ms Marten which had been previously sent to the tribunal. The respondent’s representative indicated that Ms Marten was available to speak to her statement and be cross examined on it if necessary. The claimant’s representative indicated that she did not require to cross examine Ms Marten. I accepted Ms Marten’s statement as truthfully setting out her reasons for failing to submit the ET3 response by 6 June 2021.[4]The claimant’s representative confirmed that the extension of time was opposed by the claimant. I then invited the respondent’s representative to make representations. He referred to the approach to deciding the matter set out in the well known case of Kwik Save Stores Ltd v Swain [1997] ICR 49. This sets out the general multi-factorial approach a number of factors which the Tribunal should adopt in determining how to exercise its discretion in relation to the issue of extending time[5]With regard to the explanation provided for the delay the respondent’s representative indicated it was an honest explanation. A mistake had been made. The case handler had in her mind that the extension granted would be for 21 days whilst in fact it had only been until 6 July. The error had been made in the initial email seeking the extension and the case handler had not noted matters properly when the order came back from the Tribunal. The respondent’s representative emphasised that the balance of prejudice in this case very strongly favoured allowing the extension. There would be no real prejudice to the claimant if the application were allowed. The respondent had engaged with the Tribunal and the claimant’s representative. Both sides had completed Agendas for the preliminary hearing. He pointed out that the claims being made of automatically unfair constructive dismissal and whistleblowing detriment were somewhat complex and there would be a significant windfall benefit for the claimant if he were to succeed without the necessity of proving his case against opposition from the respondent.[6]The claimant’s representative indicated that in her view the strongest factor here was the inadequacy of the reason for the delay. The first extension granted clearly refers to 6 July. There was no question but that the respondent should have noted that as being the date they had to work to. The Tribunal had not granted an extension of 21 days and this would have been very clear from the letter. She pointed out that the respondent’s email had been sent on 7 July not 6 July as stated in the witness statement. In any event, the result was that the claimant had only received the ET3 on 9 July which was only a few days before the preliminary hearing.[7]The claimant’s representative indicated that another key factor in this case was the merits of the defence submitted in the ET3. In the view of the claimant the defence put forward was unsatisfactory. In her view it was clear that a protected disclosure had been made. The words of this were clearly set out in the ET1 and in documentation. There was also a recording which in the view of the claimant linked the detrimental treatment to the disclosure. In her view the respondent were applying the wrong test when they sought to set out, as they did, their view that the respondent had complied in full with the Covid-19 restrictions applicable to them. They had also incorrectly referred to the test of good faith which is no longer one of the requirements for a protected disclosure. The claimant’s representative pointed out that all the claimant had to show was a reasonable belief in relation to the information disclosed. In her view this was a critical point to bear in mind when assessing the balance of prejudice.[8]I invited the respondent’s representative to respond and he confirmed that in his view the response set out a more than stateable defence to the claim. It was not for the Tribunal at this stage to be assessing reasonable prospects. The issue of the nature of the defence was relevant to an extent but only to the extent that there is no prejudice to a respondent in being unable to put forward a defence which is unstateable.[9]Having considered matters applying the approach set out in the case of Kwik Save Stores Ltd v Swain I advised the parties that my decision was that a further extension of time for lodging the ET3 be granted and that the ET3 be accepted. I explained my reasons to the parties at the time.[10]I agreed with the claimant’s representative that the reason given for the delay was not a particularly good one however the existence of human error is one of the reasons why the Tribunal is given a degree of discretion as to whether to accept late submissions. The Tribunal would not wish to encourage sloppy practice but equally the fact that a document has not been submitted on time due entirely to unforced human error does not mean that the Tribunal should not exercise its discretion to extend time.[11]I advised that I considered a key point in this case to be the balance of prejudice to the parties. I did not agree with the claimant’s representative that the proposed defence in the ET3 was unsatisfactory. There are clear factual differences between the parties as well as differences of interpretation. The issue of the reasonableness or otherwise of the claimant’s view in relation to the matters disclosed is clearly disputed. There are averments from the respondent that he was clearly told of the correct legal position and that in those circumstances he could not reasonably believe in the correctness of the information which he claims to have disclosed and that said information tended to show any of the proscribed matters. There is also a dispute in relation to detriment and most importantly in the reason for any of the alleged detrimental treatment. In short the respondent have set out a defence which if they are successful in whole or in part would result in them being able to successfully resist the claim either in full or in part. If they are not permitted to put forward that defence then they run the risk of being found liable to pay substantial damages in circumstances where they have not in fact incurred any legal liability. On the other hand the prejudice to the claimant if the ET3 is allowed is slight. The claimant loses the windfall benefit of obtaining substantial damages without having to prove his case. Other than that his position is unchanged. If his case is good then he will succeed after the final hearing. I agreed with the respondent’s representative that there has been no hold up to the proceedings and no delay has been caused by the respondent’s failure. In this circumstance I considered that it was clear to me that the time should be extended so as to allow the ET3 to be submitted.[12]Having advised the parties that the Tribunal accepted the ET3 I then discussed with them further procedure. In his Agenda the respondent indicated he was seeking a preliminary hearing to determine whether or not a protected disclosure had been made in this case. The respondent’s position was that they accepted that the claimant had made the statement alleged but they disputed that it qualified as a qualifying disclosure under the legislation. The claimant’s position was that they would prefer all matters to be dealt with at a final hearing. They considered that this would result in an overall saving of cost.[13]Having considered matters I decided that in this case it was appropriate to grant the respondent’s request for a preliminary hearing. At the moment so far as I can see from the ET1 the sole claims which are being made are under section 47B and section 103A of the Employment Rights Act 1996. The claimant cannot have a freestanding claim for unfair dismissal or wrongful dismissal given that he does not have sufficient qualifying service. Accordingly, if the Tribunal were to find that no qualifying disclosure had been made that would be substantially the end of the case. There is also a claim of wrongful constructive dismissal but it is not clear whether or not this could continue in the absence of the protected disclosure element. In any event it is likely that this could be settled between the parties. It appeared to me that the issue of whether or not the statement which both parties accepted was made was a protected disclosure was one which could be determined fairly readily. Evidence may be required from the claimant however it is likely to be in fairly short compass. The respondent’s representative confirmed that at most the respondent would be leading evidence from one witness. This is as opposed to the final hearing at which the respondent anticipated they would require to lead evidence from five witnesses.[14]There was a discussion regarding the issues in the case. The respondent’s representative had in their Agenda indicated they were seeking some additional information from the claimant regarding the nature of the claim. One of these was whether or not the claimant was making a claim under section 100 of the Employment Rights Act 1996. I indicated that my reading of the section of the claim which they referred to indicated that no claim under section 100 was currently before the Tribunal. The claimant’s representative indicated that she was seeking a period of 21 days within which the claimant could confirm his position regarding that point and also the two other points made by the respondent in their Agenda. I indicated that I was happy to allow the claimant to provide clarification of their position within 21 days. Both parties had produced draft Lists of Issues. I indicated that in the circumstances I would make an order that the parties use their best endeavours to produce an Agreed List of Issues within 28 days.[15]If the claimant does provide further and better particulars of claim and the respondent considers that these amount to an amendment which they are objecting to then the respondent should advise the Tribunal of their objection as soon as possible after they receive any further and better particulars from the claimant.[16]Having agreed with the parties that the case should be listed for a one day preliminary hearing to deal with the issue of whether or not a qualifying disclosure had been made I enquired of the parties whether or not they were happy for this to take place over CVP. Both indicated that they could see no difficulties with this. I canvassed with the parties the issue of using witness statements. The respondent’s representative was in favour of using witness statements. The claimant’s representative did not have a firm view. In the circumstances, I decided that it would be appropriate for witness statements to be used in this case.[17]I indicated I would be making the usual case management order for the parties to exchange documentary productions (relating only to the matter required to be dealt with at the preliminary hearing) in advance of the preliminary hearing.[18]The parties had both indicated in their Agendas that they did not consider this was a case suitable for the appointment of a judicial mediator.[19]Having discussed matters it was agreed that the preliminary hearing would take place on 23 September 2021. It will take place by CVP. The issue to be decided is whether or not the claimant made a protected disclosure as alleged in his ET1.
List of issues
[20]I found that(a) Mr Thompson had not told the claimant that the visit by Mr and Mrs Clark was for business purposes and(b) Mr Thompson had not described it as a “private event”. I made these findings because (a) the absence of any reference to the purpose of the visit was common ground between the witness statements of Mr Thompson and the claimant and (b) the claimant accepted that “private event” was his description of the proposed visit.[21]I also found that Mr Thompson did not tell the claimant that those who would be attending the visit to the hotel with Mr and Mrs Clark were employees of the hotel. In so finding, I preferred the evidence of the claimant. I considered that the claimant was sufficiently specific about what he was told by Mr Thompson during the FaceTime discussion on 12 February 2021 that it seemed unlikely he would omit such a material point. I noted that Mr Thompson believed that it was common knowledge that Mr and Mrs Clark’s daughter and son, and their daughter-in-law, were employees of either the company which owned the hotel or the company (ie the respondent) which operated it (per paragraph 13 of his witness statement). His belief that this was common knowledge made it credible that he would not have mentioned it. However, the claimant had not met Mr and Mrs Clark’s family and was not aware of their employment status relative to the hotel. Claimant becomes concerned[22]The claimant did not raise any concerns during his conversation with Mr Thompson and Mr Preston on 12 February 2021. However, he began to have some issues with what he had been told/instructed to do. He believed that travel from England to Scotland, and between Scottish regions, was not permitted. There had been no mention of the visit involving a business meeting and no reference to the attendees being employees. The claimant said in his witness statement – “There was no mention whatsoever of the weekend involving any form of business meeting of any kind. Niall made no reference to the adults who were coming up being employees. The whole tenor of the discussion was that they were being properly entertained and that this was a weekend away.”[23]The claimant formed the view that this was a substitute event for the planned (as he understood it) family visit between Christmas and New Year. He believed that it coincided with the English schools’ half term. The instruction to keep the visit confidential made the claimant “suspicious and uncomfortable” and reinforced his view that the visit “was to be kept quiet because it was illegal”.[24]The claimant discussed the matter with his partner. He went for a walk and while doing so he telephoned Mr Preston. It was apparent from the claimant’s evidence that Mr Preston did not share his concerns and was “pleased to be out of the house”. The claimant spoke to Mr Preston about his concern that what had been requested was not safe and that he did not want “to ask others to go and do it”. Claimant writes to Mr Thompson[25]The claimant decided to write to Mr Thompson, rather than phone, and did so on 12 February 2021 (99) in these terms (headed “RE: 18th – 22nd February”) - “I feel deeply saddened but unfortunately compelled, to write this letter. Following our conversation today I am writing to let you know that I will be unable to work on the dates stated above. The task outlined this morning was; to put together a rota using people that are being supported financially by the company (not furlough). This would enable the F&B department to service a four-day private event for nine people, including the owners, to be held at Fonab Castle Hotel. I am very unhappy that I have effectively been asked to break the law. I am not prepared to ask other members of the team to do likewise. I also feel that I am being unfairly compromised given the company’s current situation regarding furlough payments. I did not qualify because the paperwork was not submitted on time by the hotel and now feel that I am being obliged to carry out a task which unfortunately, I feel, is morally incorrect. I am of course very grateful for the assistance provided by the company. I understand that paying 80% of my salary during this period of time is no small undertaking. I was however under the impression that this was implemented because the hotel wanted to retain the team that was put together between September and November 2019 to ensure the strongest possible re-opening when Covid-19 restrictions end.”[26]What the claimant said in his final paragraph was a reference to a “furlough equivalent scheme” operated by the respondent under which employees, including the claimant, who had been ineligible to participate in the Coronavirus Job Retention Scheme (“CJRS”) were paid 80% of salary. The background to this was explained by Mr Thompson in his email to the claimant on 15 February 2021 (101-102) in these terms – “When the furlough scheme was extended new restrictions and rules had been put in place, for employers to be able to claim for employees: ‘You can claim for employees who were employed on 30th October 2020, as long as you have made a PAYE RTU submission to HMRC between the 20th March 2020 and 30th October 2020, notifying a payment of earning for that employee. This may differ where you have made employees redundant, or they have stopped working for you on or after 23rd September 2020 and you have subsequently re- employed them.’ As the date of 30th October 2020 was specified as the notional reporting deadline, this deemed our October RTI submissions to be too late, as our payroll is run by tax period, making the deadline the 5th of the month. Our pay date of 4th November 2020 was reported via an FPS submission on 2nd November 2020 in the normal way. Due to the guidance specifying the RTI deadline of 30th October, these employees are deemed ineligible and therefore excluded from a CJRS claim. This was not due to what you said as ‘I did not qualify because the paperwork was not submitted on time by the hotel’. As a company we never wanted to discriminate any of our team members, for those team members that were deemed ineligible and excluded from the CJRS claim, along with being dedicated to the future of Fonab we decided as a company to pay the 80% furlough payment.” Events of 15 February 2021[27]A number of things happened on 15 February 2021. I refer to them so as to provide context for the events of 12 February 2021 and in particular the issue of whether the claimant’s letter of 12 February 2021 contained a protected disclosure.[28]There was a telephone conversation between the claimant and Mr and Mrs Clark during the morning of 15 February 2021. This was covertly recorded by the claimant. It was apparent from that recording that Mr and Mrs Clark understood that the claimant had asserted that they would be acting unlawfully if the visit went ahead, and were upset at the suggestion that they would do anything illegal.[29]The claimant then wrote to Mr and Mrs Clark on 15 February 2021 (143). His letter contained the following paragraphs – “At no time during my conversation with Niall and Rikki on Friday the 12th was it mentioned that this was a working visit to the hotel to discuss architectural plans and further development of the business. Neither, at any time, was it mentioned your son and daughter are employees of the hotel. It was explained that this was a family visit for yourselves, your children & your grandchildren. I was asked by Niall to produce a rota of four staff to provide the service of breakfast, lunch and dinner for your family group from Friday the 19th to Sunday the 21st of February. Niall explicitly requested that when I was contacting team members, to ascertain their availability, I should request them to keep any details of your visit confidential.”[30]Mr Thompson did not read the claimant’s email of 12 February 2021 until the morning of 15 February 2021. He described his reaction to it in his witness statement in these terms – “I was taken [a]back by what was contained within the letter. My first thoughts were: I was shocked, dumbstruck and thought ‘what are you on about’…. I was also confused as I did not know what aspect of my request Steven had taken an issue with, there was both a reference to law and morals….There was no information [as] to what the problem was, and I didn’t understand what he was getting at. I spoke to Joanne and Jed and they were also confused as to what the problem was.”[31]Later in his witness statement Mr Thompson said (responding to the claimant’s reference to being “asked to break the law”) the following – “Steven has not said what law has been broken. I cannot see….what ‘law’ is being referred to either. Again, I really didn’t understand what he meant by unlawful and I kept thinking to myself ‘what do you mean?’”[32]Mr Thompson replied to the claimant’s letter of 12 February 2021 in the late afternoon of 15 February 2021 (101-102). His reply included the following – “The term ‘Private Event’ was never used during our conversation. Everyone attending Fonab is employed by Fonab Castle Hotel Ltd who manage the business or JC Properties who own the property and are responsible for the future and development of the site. As Fonab has recently been given planning permission to complete the final plans for the spa along with the continual rollout of lodges, it was felt that a site visit was required to finalise decisions and allow the progression of work. As you can understand being a parent, childcare is challenging during lockdown, so those employees who have children had been expected to bring their children.”[33]Notwithstanding Mr Thompson’s assertion that he and Mr and Mrs Clark did not understand “what the problem was”, I found that(a) the terms in which the claimant wrote to Mr and Mrs Clark after their telephone conversation on 15 February 2021 and(b) the terms in which Mr Thompson wrote to the claimant on 15 February 2021 indicated that they (Mr and Mrs Clark and Mr Thompson) were aware that the “problem” was the legality, during lockdown, of the visit to the hotel by Mr and Mrs Clark and members of their family and the instruction that hotel employees should travel to the hotel to provide hospitality services to this group.[34]I made this finding for the following reasons. In his letter to Mr and Mrs Clark the claimant referred to the purpose of the visit (“working visit”) and to the employment status of the attendees. This reflected the telephone conversation on 15 February 2021 and was directed to the applicability of exceptions to the lockdown rules. The recording of that conversation confirmed that Mr and Mrs Clark were aware that this was the alleged illegality as they sought to explain to the claimant why he was not correct.[35]That contradicted Mr Thompson’s assertion that Mr and Mrs Clark were “confused as to what the problem was”. That Mr Thompson also understood the nature of the “problem” was confirmed by his challenging the claimant’s use of the phrase “private event” and referring to the employment status of the proposed attendees. He described the visit as a “site visit” which indicated an intention to differentiate this from a “private event” which would be in breach of lockdown rules.[36]The claimant responded to Mr Thompson later on 15 February 2021 (100). Insofar as it provides context for the events of 12 February 2021, the claimant’s response included the following – “At no point was it made clear to me that this was to be a business meeting. At no point was I made aware that the children attending were related to hotel employees…. With regards to the phrasing ‘Private Party’. I used this phrase as this was the only way I could describe what you had outlined in our meeting on the 12th of February. To summarise what was mentioned: Jed and Joanne would arrive on Thursday the 18th. On Friday the 19th at around 1pm Becky (Daughter) Jed (Son) plus two other adults and three children would be arriving. Nine people in total.” Investigations[37]Subsequent to the events described above, the claimant submitted a grievance and then resigned. The respondent appointed Ms C Mellor, HR Consultant, to conduct(a) a grievance investigation and(b) a whistleblowing investigation. These were outwith the scope of the matters I had to determine. However, her reports were included in the joint bundle – grievance (148-160) and whistleblowing (161-170) – and I noted the matters set out in the next two paragraphs.[38]At the start of section 5 of her grievance report (“Investigation Conclusion and Outcome”), Ms Mellor said the following (158) – “It is noted that at the point SS submitted his protected disclosure he may have had a legitimate belief that the actions of NT and the owner of the hotel were not in accordance with the regulations in force at the time.”[39]At the end of section 5 of her whistleblowing report (“Findings and Outcome”), Ms Mellor said the following (170) – “I do not find it reasonable for SS to have concluded, on the basis of the information he had, that a breach was going to take place, nor do I find it reasonable that SS continues to hold this view.”[40]I considered that the key phrases here were “at the point SS submitted his protected disclosure” and “on the basis of the information he had”. The former relates to the claimant’s state of knowledge as at 12 February 2021. The latter relates to his state of knowledge after the nature and purpose of the visit had been explained to him. Ms Mellor confirms this in her whistleblowing report when she states (169) – “On the next working day, both the line manager and the owner reassured SS that there was no breach and explained the reasons for the planned visit.”[41]My reading of Ms Mellor’s whistleblowing report was that this reassurance was part of the “information” the claimant had. She was saying in effect that what might have been a “legitimate belief” on 12 February 2021 was not a “reasonable….view” once further information was provided on 15 February 2021 and thereafter. Comments on the evidence[42]Both the claimant and Mr Thompson were credible witnesses. Their evidence was given to the best of their recollection. Where there was conflict between their versions of events, I believed this reflected their differing recollections of what was said. I found the terms of the correspondence of 12 and 15 February 2021 helpful in determining whose recollection was the more accurate. Submissions[43]Ms Cradden and Mr Bronze each provided a written submission, supplemented orally at the hearing, and I express my thanks to both for the evident care taken in the preparation of those submissions. The written submissions are available in the case file and I do not propose to rehearse them here. Instead, I will refer to their competing arguments in the discussion section below.
Discussion
[44]I will deal with matters by working through the points contained in the list of issues (76-80) so far as relevant to the matters I have to determine. Did the claimant make a protected disclosure to the respondent?[45]It was common ground that the purported protected disclosure was the claimant’s letter to Mr Thompson of 12 February 2021 (99).[46]I reminded myself that in terms of section 43B(1) there required to be a disclosure of information which in the reasonable belief of the claimant was made in the public interest and tended to show one or more relevant failure. In Williams v Michelle Brown AM UKEAT/0044/19 the EAT (per Auberach HHJ, at paragraph 9) set out what have been referred to as the “section 43B(1) questions” – “It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.” Disclosure of information[47]Was there a disclosure of information? Ms Cradden’s position was that the claimant’s letter of 12 February 2021 disclosed information by referring to the private event that was to take place the following weekend and alleging that this was unlawful. Mr Bronze’s position was that there was no information contained in the claimant’s letter and so it could not be a disclosure of information.[48]In Cavendish Munro Professional Risks Management Ltd v Geduld 2010 IRLR 38 where the Employment Appeal Tribunal said that “the ordinary meaning of giving ‘information’ is conveying facts”. In Kilraine v London Borough of Wandsworth 2018 ICR 1850 the Court of Appeal in England contrasted “information” and “allegation” and accepted the argument that it was wrong to suppose that the categories of “information” and “allegation” were mutually exclusive. Referring to the language of section 43B(1), the Court said – “In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1).”[49]Ms Cradden referred to Twist DX Ltd and others v Armes and another UKEAT/0030/20. I understood she did so to steer me away from the decision of the EAT in Fincham v HM Prison Service UKEAT/0925/01 where, at paragraph 33, Mr Justice Elias (as he then was) said – “….there must in our view be some disclosure which actually identifies, albeit not in strict legal language, the breach of legal obligation on which the employer is relying….”[50]At paragraph 59 in Twist, the EAT said – “….the question whether a written communication discloses information which is capable of satisfying section 43B(1) will often require the determination of issues of fact as to context, and consideration of all of the relevant facts in the case….”[51]I considered what the claimant had said in his letter to Mr Thompson of 12 February 2021. He referred to being instructed that the respondent’s food and beverage department should “service a four-day private event for nine people, including the owners, to be held at Fonab Castle Hotel”. He said that he was “very unhappy that I have effectively been asked to break the law”.[52]I considered the context in which this had been said. That context included the Level 4 restrictions introduced by the Scottish Government with effect from 26 December 2020 in response to the ongoing Covid-19 pandemic. It included the wide media coverage of those restrictions. It included the claimant’s understanding of those restrictions as described in his witness statement (see paragraph 13 above) which I found no reason to doubt.[53]It also included what the claimant had been told by Mr Thompson during their FaceTime conversation on 12 February 2021, and the claimant’s understanding of that. I believed that the claimant understood(a) that Mr Thompson was talking about a private, as opposed to business, event,(b) that members of Mr and Mrs Clark’s family would be attending but not that they were employees or otherwise connected with the hotel in a business sense,(c) that children were also attending which was more indicative of a family gathering than a business meeting and(d) that there was a need for confidentiality.[54]What the claimant was saying to Mr Thompson in his letter of 12 February 2021 was that his department was being asked to service an event, the family visit, at the hotel which would involve breaking the law. The claimant did not specify which law (the Fincham point) but, given the context (ie the matters referred to in the two preceding paragraphs), I considered that it was sufficiently clear that the claimant meant lockdown restrictions. I found that this was a disclosure of information. Public interest[55]Ms Cradden and Mr Bronze both referred to Chestertons Global Ltd (t/a Chestertons) v Nurmohamed [2017] EWCA Civ 979. Ms Cradden’s argument was that the sole purpose of the lockdown restrictions was to protect the health and safety of the public, and so they were inexorably linked to the public interest. Mr Bronze referred to the factors identified in Chestertons –• The numbers in the group whose interests the disclosure served.• The nature of the interest affected and the extent to which they are affected by the wrongdoing disclosed.• The nature of the alleged wrongdoing disclosed.• The identity of the alleged wrongdoer.[56]Mr Bronze pointed out that in his letter of 12 February 2021 the claimant made no mention of health and safety. This was, he argued, retrospective justification.[57]I was with Ms Cradden on this. In the context of the pandemic, a disclosure which related to compliance with lockdown restrictions designed to prevent the further spread of Covid-19 was in the public interest. A breach of those restrictions carried the risk that infection could be spread by an attendee at the proposed event to anyone who was in contact with that attendee. This was a public health issue which, in my view, necessarily engaged the public interest. Reasonable belief[58]Ms Cradden reminded me that there are two stages to assessment of reasonable belief –(a) Did the claimant genuinely believe that the disclosure was of information tending to show a relevant failing?(b) Was it objectively reasonable for him to hold that belief? Although expressed by Ms Cradden with reference to a relevant failing, I considered that this approach applied equally to reasonable belief that the disclosure was made in the public interest.[59]Ms Cradden relied on Babula v Waltham Forest College [2007] EWCA Civ 174. In that case Wall LJ said the following (at paragraph 75) – “….I agree with the EAT in Darnton that a belief may be reasonably held and yet be wrong….” (a reference to Darnton v University of Surrey 2013 IRLR 133) and (at paragraph 82) – “….in my judgment, the word ‘belief’ in section 43B(1) is plainly subjective. It is the particular belief held by the particular worker. Equally, however, the ‘belief’ must be ‘reasonable’. That is an objective test….”[60]Ms Cradden submitted that the evidence indicated that the claimant did hold a genuine belief about the information he disclosed (that the visit would be unlawful). She invited me to discount as speculation Mr Thompson’s assertion that the claimant was motivated by a reluctance to return to work. Ms Cradden argued that the claimant’s belief was objectively reasonable. This was what the respondent’s own grievance investigation had concluded.[61]Mr Bronze submitted that, for it to be reasonable, the claimant’s belief had to go beyond a general belief in the broad gist of the content of the disclosure – Korashi v Abertawe Bro Morgannwg University Local Health Board 2012 IRLR 4. It had to be more than an expression of opinion, as in Goode v Marks and Spencer plc UKEAT/0442/09 and Easwaren v St George’s University of London UKEAT/0167/10.[62]The disclosure should not be made out of personal interest – Parsons v Airplus International Ltd UKEAT/0111/17. Mr Bronze argued that the claimant’s real concern was an issue about furlough pay.[63]My view of this was that the claimant did have a reasonable belief that his disclosure was(a) in the public interest and(b) tended to show a relevant failure. I was satisfied that the claimant, given his understanding of the lockdown restrictions, did believe that the proposed visit would be unlawful and a risk to the health and safety of his team members and himself, and those with whom they might come into contact. Viewed objectively, that was a reasonable belief. There was sufficient information in the public domain as at 12 February 2021 for any reasonable person to believe that a breach of lockdown restrictions would be both unlawful and a risk to public health. Tending to show a relevant failure[64]I have already covered some of the ground here under “Disclosure of information”. That is not surprising as the disclosure needs to be one that tends to show a relevant failure “albeit not in strict legal language” (per Fincham). However, Ms Cradden argued, it was not necessary for the person making the disclosure to have stated explicitly that he/she reasonably believed that the disclosure tended to show one or more of the matters set out in section 43B(1)(a) to (f).[65]Mr Bronze referred to Blackbay Ventures Ltd t/a Chemistree v Gahir UKEAT/0449/12. The EAT in that case, dealing with the approach which should be taken by Employment Tribunals when considering claims by employees for victimisation for having made protected disclosures, said (at paragraph 98, sub-paragraph 5) – “Save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation.”[66]Mr Bronze argued that the matters complained of by the claimant were far from meeting the “obvious” threshold. In support of this he referred to Eiger Securities LLP v Korshunova UKEAT/0149/16, a case in which the EAT found that the disclosure did not meet the “obvious” threshold.[67]My view of this is that whether the “obvious” threshold is met is dependent on the facts of each case. In the present case, those facts include the contextual matters I have referred to at paragraph 52 above. The claimant referred to the “four-day private event” at the hotel and being “asked to break the law”. This was at a time when there was daily media coverage about lockdown restrictions and their impact. I considered that what the claimant said in his letter of 12 February 2021 was a clear statement that the event at the hotel would be unlawful (ie in breach of a legal obligation) and, despite Mr Thompson’s evidence to the contrary, that should have been clear to the respondent.[68]I considered that the endangerment of health and safety was also obvious, without being expressly stated. This was because the purpose of the lockdown restrictions was widely understood. They were to protect public safety in the midst of a pandemic. To act unlawfully in relation to those restrictions is self-evidently to endanger health and safety by increasing the risk of exposure to infection. Health and safety case[69]I reminded myself that the language of section 44(1)(c) ERA differed from that of section 43B(1) ERA. In terms of section 44(1)(c), what I had to decide was whether the claimant had brought to the respondent’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety. This provision was only applicable where(i) there was no health and safety representative or committee or(ii) there was such a representative or committee but it was not reasonably practicable for the employee to raise the matter by those means.[70]I heard no evidence as to the existence or otherwise of a health and safety representative or committee but I did not understand the respondent to argue that section 44(1)(c) was not engaged because there was such a representative/committee and that it had been reasonably practicable for the claimant to raise matters through that representative/committee.[71]Ms Cradden’s position was it was self-evident that the claimant’s complaint was directly concerned with health and safety. He was concerned about an event which was going to involve contact between people, which was widely known to increase the chances of spread of the virus. He reasonably believed that the arrangement was harmful. His conversation with Mr Preston had included reference to a colleague (Kenny) travelling from Glasgow.[72]Mr Bronze invited me to consider carefully what it was that the claimant was asking the Tribunal to find. Merely alleging that it was not safe to return to work due to Covid-19 did not equate to a health and safety concern. Mr Bronze referred to Accattatis v Fortuna Group (London) Ltd ET/3307587/2020. The Tribunal in that case accepted that Mr Accattatis reasonably believed the danger from Covid-19 to be serious or imminent but held that he had not taken appropriate steps to protect himself or others from the danger. The Tribunal found that he had been dismissed because he was perceived to be a difficult employee and the employer wanted to prevent him from achieving two years’ service, not because he was reluctant to come into work or use public transport.[73]Mr Bronze submitted that Accattatis was on all fours with the present case “in that the claimant has cited ‘Covid-19’ and latterly ‘health and safety’ and expected the Tribunal to join the dots”.[74]I had some difficulty with both of these submissions. From the claimant’s side, when I looked at what he said in his letter to Mr Thompson of 12 February 2021, it was not immediately clear from the language used that he was bringing to his employer’s attention circumstances connected with his work which he believed were harmful or potentially harmful to health or safety. That letter referred to(a) an instruction relating to an event and(b) the claimant’s unhappiness that he had been asked to break the law.[75]From the respondent’s side, I did not agree with Mr Bronze that Accattatis was on all fours with the present case. Accattatis was an unfair dismissal case brought under section 100(1)(e) ERA. That subsection applies where “in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger”. That language is materially different from the language of section 44(1)(c) ERA (which is replicated in section 100(1)(c) ERA).[76]I came to the view that it was appropriate to consider the context in which the claimant wrote his letter of 12 February 2021 in deciding whether it came within section 44(1)(c) ERA. This included the matters mentioned at paragraph 52 above (level 4 lockdown restrictions, media coverage etc). If it was appropriate to consider “issues of fact as to context” (per Twist) in relation to section 43B(1) ERA, I saw no reason why it should not be equally appropriate to do so in relation to section 44(1)(c) and/or section 100(1)(c) ERA.[77]Approaching the matter in that way, I came to the view that what the claimant said in his letter of 12 February 2021 did amount to bringing to the respondent’s attention, by reasonable means, circumstances connected with the claimant’s work which he reasonably believed were harmful or potentially harmful to health and safety. As stated at paragraph 68 above, to act unlawfully in relation to lockdown restrictions was selfevidently to endanger health and safety by increasing the risk of exposure to infection. I found support for this in the conversation the claimant had with Mr Preston on 12 February 2021 where the claimant spoke about his concern that what had been requested was not safe.
Disposal
[78]For the reasons set out above, I decided that the claimant had made a protected disclosure to his employer under section 43A ERA which was a qualifying disclosure under section 43B ERA. I also decided that the claimant had brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety in terms of section 44(1)(c) ERA. Further procedure[79]The case should now proceed to a final hearing. A closed preliminary hearing for the purpose of case management should now be fixed so that arrangements for the final hearing can be discussed.