Mr A Forootan v Alliance Trust Savings Ltd: 4114389/2019

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4114389/2019

Between

Mr Alex ForootanClaimant

Alliance Trust Savings LimitedRespondent

Before

Employment Judge I McFatridge

Ms Fitzpatrick (instructed by Solicitor) for respondent

Date 26 February 2021

JUDGMENT

The judgment of the Tribunal is (One) The application to strike out the claim of automatic unfair dismissal does not succeed. (Two) For the avoidance of doubt, all other claims made by the claimant are dismissed on the basis that they have no reasonable prospect of success.

REASONS

[1]A preliminary hearing took place on 30 June 2020 with a view to determining whether the claimant’s claim should be struck out in terms of E.T. Z4 (WR) Rule 37 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The claimant submitted a claim to the Tribunal in which he set out a history of having made a complaint to the Information Commissioner’s Office in relation to a mobile phone application which he was required to install on his personal mobile phone by his employer the respondent. He narrated that he had subsequently been dismissed. He went on to state that the respondent had breached section 47B of the Employment Rights Act 1996 by dismissing him as a direct result of making a complaint to the ICO. The respondent submitted a response in which they denied the averments made by the claimant. They also made the preliminary point that the claim under section 47B of the Employment Rights Act 1996 was inept in that section 47B specifically provides that it has no application where the alleged detriment is dismissal. The case was set down for a preliminary hearing which took place on 20 March 2020. The claimant attended this hearing in person (it was a telephone hearing) although he had previously been represented. I advised the claimant of the difficulty with his claim in that it appeared that he was referring to the wrong section of the Employment Rights Act 1996. I also advised him that he required to provide further specification of his claim so as to enable it to be dealt with properly by the respondent. I indicated that at that stage I was not prepared to accede to the respondent’s request that the claim be struck out but would give the claimant more time to rectify his pleadings.

[2]An order was made which required to be complied with by 17 April 2020. The claimant did not comply with this order.

[3]A further preliminary hearing took place on 5 May 2020. The claimant’s position was that he did not feel he was in a position to respond to the order since he wished to be represented by a solicitor. He said he had contacted around 150 firms of solicitors throughout Scotland but none of them were prepared to take on new cases in the current situation. I advised the claimant that he had been given a degree of leeway because he was unrepresented but he must comply with Tribunal orders. In the circumstances, given that the respondent were still seeking strike out which failing a deposit order I fixed a preliminary hearing in order to determine this application for 30 June 2020. On 15 June the claimant provided documents including a copy of his Universal Credit application, a copy of an article which had been printed about the claimant’s case in the newspaper, a letter the claimant had written to the law society complaining about his previous solicitor and a zip file containing copies of letters which he stated he had written to various solicitors seeking to have them represent him. Finally, around about 17 June the claimant produced a further document which bore to be a completed PH Agenda. This was the Agenda which ought to have been prepared in advance of the hearing in March. The claimant said he was claiming “Direct discrimination, indirect discrimination, sex race age harassment.” He mentioned that he had been dismissed or otherwise disadvantaged because he had made a protected disclosure and referred to “Complaint re data protection breach by using app on personal mobile to the Information Commissioner’s Office.” When asked at box 2.4 whether the information disclosed tended to show any of the following he said “Yes, data protection breach. Failing to abide by data protection legislation. ICO evidence attached.” When asked about the disadvantage he had suffered he said “employment dismissed”. In section 2.7 when asked about other complaints he said “Automatic unfair dismissal, unfair dismissal, breach of human right, Human Rights Act 1998 – the right to respect of a private life, sexual harassment.”

[4]Accompanying this was a document entitled timeline which bore to give a timeline of the claimant’s employment. He refers to having raised an HR grievance about the mobile phone application in January 2019. He says he reported this to the police in January 2019 that he then spoke to someone called Jason described as a “mobileiron partner”. He said he was not satisfied with the HR investigation and escalated matters to the ICO and ATS Chairman Robert Smith. He refers to various matters culminating in the termination of his employment. He refers also to various additional matters such as someone tampering with his Instagram account and a blackmailing spam e-mail which he reported to the police in April 2020.

[5]The open preliminary hearing took place on 30 June using the Tribunal’s Kinly CVP system. Both parties made full submissions. The respondent’s solicitor helpfully lodged a copy of her submissions in writing. These are extremely full and were most helpful. Given that I could not hope to properly do them justice by re-phrasing them I shall refer to them where appropriate below.

[6]The claimant’s submissions were extremely limited. He indicated that he had not responded to the Tribunal’s orders because he had spent all his efforts in trying to find a new solicitor. He had only recently come to the view that he was not going to find another solicitor and had attempted to provide the information sought. He apologised if this was not in the proper format but he stressed that he was not legally trained. He also mentioned that English was his fourth language. It was his view that there was a matter of serious public interest here and that the case should be heard. Discussion and decision

[7]The respondent’s solicitor has correctly referred to the legal principles involved. The respondent’s solicitor based her application for strike out essentially on three grounds.

[8]The first of these is that the claim made under section 47B of the Employment Rights Act 1996 is incompetent. I considered that I required to deal with the case based on the claimant’s averments being taken at their highest. I have taken the claimant’s averments to be those stated in his original ET1 together with the Agenda and document entitled Timeline which he forwarded to the Tribunal in June. Section 47B generally makes it unlawful to subject an employee to a detriment as a result of their having made a protected disclosure. As I pointed out to the claimant as far back as March it excludes dismissal from being a detriment in terms of section 47B.

[9]It appears to me that the whole thrust of the claimant’s claim based on him having made a protected disclosure is that he was dismissed. He does refer to other matters such as his Instagram account being hacked and him receiving various spam e-mails which he refers to as blackmailing emails but there is no specific averment that the respondent was responsible for sending these e-mails or hacking his Instagram account. It appeared to me that on the face of it the respondent’s position is that any claim by the claimant under section 47B is incompetent and has no reasonable prospect of success. The claimant has not provided sufficient detail of any detriment claim other than his dismissal and there is not even an averment saying that the respondent was responsible for the other matters he refers to. I do not however consider that this is the end of the matter.

[10]The overriding objective of the Tribunal is to do justice between the parties and that means avoiding formality so far as possible. I indicated to the respondent’s representative at the very first preliminary hearing that it was clear to me that the respondent’s then representative has simply referred to the wrong section of the Employment Rights Act 1996. It was an error for her to do so and either the claimant or his solicitor ought to have corrected immediately the error was pointed out by the respondent in their ET1 or at the very latest when I not only pointed this out to the claimant personally at the PH in March 2020 but also told him the correct section of the act to which he should be referring. In my view, however, despite the fact that the claimant’s failure to engage with the point is frustrating, it would be disproportionate to strike the claim out simply because the claimant’s representative has referred to the wrong section of the Act. If that was all there was then this is clearly something which is capable of being rectified and indeed on 20 March I fully expected the claimant to write back to the Tribunal within a short period of time confirming that he was claiming under section 103A. The claimant has not done this but he has stated in his Agenda that he is claiming automatic unfair dismissal. My view therefore is that I would not in the normal course be prepared to strike out the claim purely on the basis that it is incompetent because the wrong section of the Act has been referred to when the claimant has made it clear elsewhere that he is claiming automatic unfair dismissal. It appears to me that it is clear that, although he has refrained from saying so in as many words, the claimant is making a claim under s103A.

[11]Going on from that the respondent’s representative has indicated that in any event the claim should be struck out as it has no reasonable prospect of success. Failing this she seeks a deposit order on the basis it has little reasonable prospect of success.

[12]First of all I should say that I have no hesitation in ruling that any discrimination or other claim made by the claimant and any claim under section 47B which has been made has no reasonable prospect of success. The claimant has not given sufficient detail of the detriments which he claims to have suffered under section 47B and as noted above there is not even an averment that the respondent was responsible for these alleged detriments or indeed any suggestion given as to how they could have done this. The discrimination claims are not particularised in any way and it is not clear what if any incidents the claimant is relying on. If the claim were to proceed to a hearing then the claimant would not be in a position to lead evidence any alleged discrimination because there is simply no fair notice to the respondent of what is being alleged.

[13]With regard to the claim of unfair dismissal I also have considerable hesitation as to whether there is any reasonable prospect of success. He does not have sufficient qualifying service to bring a claim of ordinary unfair dismissal. His claim is that he made protected disclosures. It appears that from what he has said in his pleadings that he has disclosed information which tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject. I understand the legal obligation is said to relate to data protection. He says he made the disclosure to his employer in a grievance and also that he escalated this to the company chairman. He is also alleging that he disclosed this information to the Information Commissioner who is a prescribed person under the Public Interest Disclosure (Prescribed Persons) Order 2014. The Information Commissioner is a prescribed person in relation to compliance with the requirements of legislation relating to data protection and to freedom of information. It is clear from what the claimant has said so far that the claimant at least believes that the disclosure was in the public interest. It is also clearly his position that he was dismissed on account of this. It is therefore my view that if I were prepared to accept, as I am that I am not prepared to strike out the claim purely on the basis that the claimant has mis-described the section of the Employment Rights Act on which he seeks to rely I could not say at this stage that his claim of automatically unfair dismissal has no reasonable prospect of success.

[14]I appreciate the respondent’s concerns that the claimant has provided information in the various documents he has sent in which is somewhat sparse particularly in relation to specifically what it is he says was disclosed what time. I do note however that he refers to a grievance which he has lodged with his employer and to escalating the matter to the ATS Chairman. I also note that he has produced a copy of an e-mail from the Information Commissioner which mentions a complaint he has made. He does not appear to have yet lodged a copy of his actual letter of complaint to the Information Commissioner. I am however of the view that these are matters of additional specification which could be sorted out.

[15]I should also say that I am not minded to make a deposit order. I do not consider that I have sufficient information before me to make a finding that the claim of automatic unfair dismissal has little reasonable prospect of success. I have to base this assessment on the claimant’s pleadings taken at their highest. The claimant clearly has a number of difficulties in establishing his claim but if the tribunal, after hearing evidence, found the facts as set out by the claimant to have been established then it cannot be said there is little likelihood of success.

[16]Finally, the respondent considers that the claim should be struck out on the basis that the claimant has failed to comply with the Tribunal order. I have to say that this is the part of the application which has caused me the most difficulty. As mentioned above the respondent raised the issue of competency and sought strike out prior to the first case management preliminary hearing in this case in March. The matter was discussed at the case management hearing and the claimant was left in no doubt that as matters stood his claim was inept and that he required to take immediate steps to rectify it. The claimant was provided with guidance as to how to do so and entirely failed to comply with the Tribunal order. I do note that at an earlier stage the claimant indicated he had not received a written copy of the order. The claimant did not mention this in his submissions at the hearing on 30 June. In any event the claimant was personally present at the hearing on 20 March when he was ordered to provide the additional information.

[17]The position we have is that the claimant has produced a claim which as it stands is entirely vague and lacking in specification in respect of practically all of the matters raised. With respect to one particular claim there is probably just about sufficient to get a claim off the ground but for the fact that the claimant has referred to the wrong section of the legislation. It is part of the Tribunal’s job in case management to level the playing field by giving unrepresented claimants an opportunity to rectify matters such as this. In this case the claimant was given that opportunity but appears to have deliberately chosen not to comply with the Tribunal orders until at the very last minute he has submitted documentation which does not really address the issue at all comprehensively. I consider that there is real injustice to the respondent in allowing this state of affairs to proceed. This is particularly the case where the claimant is apparently contacting the press about his case and making various allegations about the respondent and about his Tribunal claim. It does not reflect well on the claimant that he appears willing to criticise the respondent to the press whilst at the same time failing to provide answers to questions which have been asked about his claim in a Tribunal order.

[18]The above having been said I am required to consider issues of proportionality. Whilst I accept that the respondent has been prejudiced by the claimant’s behaviour I also have to take into account that if the claim is struck out in its entirety the claimant will lose the opportunity of having the very serious allegations he has made considered by a tribunal. I note that the various cases referred to by the respondent make clear the higher courts still regard strike out as being an exceptional remedy which should only be used sparingly. I note that in the case of Weir Valves & Controls (UK) Limited -v- JB Armitage [2003] WL 2287114 (2003) it is made clear that although it may be frustrating for a Tribunal if its orders are not complied with, non-compliance does not automatically lead to strike out. The Tribunal in that case stated that if they did not strike out the (notice of appearance) there would effectively have been a flagrant breach of the terms of the rules to the advantage of the other party without any sanction being imposed. The tribunal were heavily criticised by the appeal tribunal for taking this view into account. It was said to be an irrelevant consideration.

[19]The ultimate test which I required to apply is whether it is possible to have a fair hearing of the case. In my view the claimant has just, and only just, provided enough information to enable his claim that he was automatically unfairly dismissed for making a protected disclosure to his employers and the Information Commissioner to proceed to a hearing. As noted above, the specific allegation can be fleshed out by the respondent seeking additional information as to the form and content of the disclosure should they wish.

[20]In my view there has been a failure of the claimant to comply with the order but it is not proportionate to strike out his claim on that basis. On the other hand I consider that the claimant has failed to specify any claims such as discrimination which have been previously mentioned. Accordingly, my ruling is that the claimant’s claim of automatic unfair dismissal in breach of section 103A of the Act should proceed to a hearing. For the avoidance of doubt any other claims being made by the claimant are dismissed as being inadequately specified and having no reasonable prospect of success. EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4114389/2019 Held via Cloud Video Platform (CVP) on 1 and 2 February 2021 Employment Judge: A Strain (sitting alone) Mr Alex Forootan Claimant In Person Alliance Trust Savings Limited Respondents Represented by: Ms Laura Fitzpatrick – Solicitor JUDGEMENT OF THE EMPLOYMENT TRIBUNAL The judgement of the Tribunal is that the reason (or principal reason) the Claimant was dismissed was not that the Claimant had made a protected disclosure contrary to section 103A of the Act and his claim is accordingly dismissed. Background 1. The Claimant presented his ET1 on 13 December 2019 which contained various claims. Following a Preliminary Hearing on 30 June 2020 the claims were narrowed to a complaint of automatic unfair dismissal in breach of section 103A of the Act. 2. The Respondent’s position was that the Claimant they accepted that the Claimant had been dismissed but that he had been dismissed due to the relationship and mutual trust and confidence between the Parties having irretrievably broken down. 3. The issue for the Tribunal to determine was whether or not the reason (or principal reason) for the dismissal was that the Claimant had made a protected disclosure contrary to section 103A of the Act. 4. The remedy sought by the Claimant was compensation. 5. The Parties had lodged an agreed Joint Bundle of Documents with the Tribunal and the Claimant had lodged a separate Remedy Bundle. 6. The Claimant gave evidence on his own behalf. For the Respondent, Mr Richard Lord (RL), their former Chief Information Officer who dismissed the Claimant, gave evidence. 7. Subsequent to the conclusion of the Hearing the Claimant lodged additional documentation which included the ICO complaint. Findings in Fact 8. Having heard the evidence of the Parties and considered the documentary evidence before it the Tribunal made the following findings in fact:(1) The Respondent is a large organisation engaged in the provision of financial services;

(2) The Claimant was employed by the Respondent as a Database Administrator in the Respondent’s Dundee Office from 2 October 2017 until his employment was terminated on 3 July 2019;

(3) Terms and conditions of employment were issued to the Claimant on 22 September 2017 (Production 4);

(4) The Respondent was on sickness absence from 9 January 2019 until the termination of his employment;

(5) The Respondent deployed an application called MobileIron on a number of employee’s personal phones (including that of the Claimant) to allow employees to securely access corporate emails;

(6) On 16 January 2019 the Claimant raised concerns with regard to the capabilities of the MobileIron aplication and the extent to which it accessed and stored personal data of his at a meeting with Lisa Storrier (LS) and Jean Montgomery (JM) (HR Business partners). It was agreed at this meeting that the Respondent would clarify the capabilities of the MobileIron application and how it was used by them;

(7) The Respondent commissioned an internal audit into the capabilities of the MobileIron application in January 2019. By email of 31 January 2019 (Production 6) from LS to the Claimant the Respondent informed the Claimant of the findings of the internal audit. The findings were that MobileIron was only enabled by the Respondent to track location and detail applications installed on a device. The email enclosed logs showing that there had been no request for such data in respect of the Claimant. MobileIron was capable of many other features (including the ability to relay SMS messages sent from a device) but these had not been enabled by the Respondent. The email confirmed that independent verification of the internal audit’s findings would be conducted;

(8) During February and March 2019 the Claimant raised further queries with regard to the MobileIron application which were responded to by email (Production 7);

(9) By email of 14 March 2019 (Production 8) the Claimant raised a formal grievance under the Respondent’s Grievance Policy (Production 5).This grievance included a reference to “installation of a wire-tapping agent on Personal Phone”. It also enclosed a detailed list of questions ;

(10) The detailed list of questions was responded to by the Respondent (Production 15);

(11) By email of 27 March 2019 (Production 9) LS sent the Claimant a copy of the external audit report (Production 10);

(12) The external report was prepared by Sapphire who were the suppliers of the MobileIron application to the Respondent;

(13) The external report found:

a. “there is no cross over of employee personal data and corporate data”;

b. “members of staff with access to the MobileIron management interface do not have routine access to personal data”; and

c. “Privacy implications are minimal with the only area of (minor) concern being that the names of installed applications are captured.”

(14) The external report concluded: a. “No personally identifiable information was found within the log file”; and b. “Generally, best practice settings are in place making an overall good level of security hygiene”.

(15) The Claimant made a complaint to the Information Commissioner (ICO) on 8 April 2019;

(16) The Respondent fixed a Grievance Hearing for 18 April 2019. At the request of the Claimant by email of 17 April 2019 (Production 11) the Grievance was determined in writing;

(17) By email of 20 April 2019 (Production 11) the Claimant informed the Respondent that he was not satisfied with the investigation into MobileIron and was escalating this to his legal team;

(18) The Claimant sent 2 emails on 20 April 2019 to LS (Production 12) which contained the following statements: a. “My legal team will educate you, and the ATS management and your legal team on my human rights soon”; and b. “We are not horses we are human and different to a horse. We have rights and lawyers. Horses don’t have lawyers.”

(19) On 22 April 2019 (Producation 13) the Claimant sent an email to the Chairman of Alliance Trust PLC in the following terms: “Can you please allocate someone to look into this. If you can not fix this in the next 24 hours I will get police involved. My phone has been hacked by IT and this is a criminal offence”.

(20) The Respondent informed the Claimant of the outcome of his grievance by letter of 3 May 2019 (Production 14) which found that “There is no evidence to suggest that your privacy at work has been breached or your personal data compromised”.

(21) The Claimant sought to appeal the grievance outcome by email of 4 June 2019 (Production 16) and was asked to set out the grounds of his appeal in writing by email of 5 June 2019 from LS;

(22) The Claimant set out the grounds of his appeal in an email to LS of 5 June 2019 (Production 17). This email complained (amongst others) that the “internal and external audit was too narrow in scope and only focussed on current configuration and findings require clarification” and that the Claimant “was supplied with partial logs for 1 of my mobile devise, I owned 2 devices and I expected full logs for both devices.”

(23) The Claimant sent LinkedIn messages to Matteo Basso (a work colleague) on 12 and 13 June 2019 (Production 18) in which he states “”I talked to HR and they confirm in writing that they can access your sms. And call logs.”

(24) The Claimant sent LinkedIn messages to Emma Gorman (a work colleague) on 13 June and 12 July 2019 (Production 19). The message of 13 June asked if MobileIron has been installed on her personal phone and states “I think it gives my line manager and colleagues in IT full access to employee personal phone.”, “I guess I’m going to report my manager to the police.” . The message of 12 July stated “Looks like our chairman of ATS Lord Robert Smith was fined for bribery and corruption” and accuses him of being a “mobster”.

(25) The Claimant sent a LinkedIn message to Richard Glass (a work colleague) on 13 June 2019 (Production 20) stating “Corey installed app on my personal phone it seems like wiretapping agent called mobile iron. I wonder if he has also installed on your personal mobile too? I think gives him full remote access to my phone.”

(26) The Claimant sent an email of 14 June 2019 (Production 21) to the BBC alleging “I have discovered my employer and in particular IT is hacking employee’s personal phone….They use a technology called mobile iron… this is wiretapping agent and….get full access to employee phone including microphone and camera, Whatsapp, socila media, etc.”

(27) The Respondent’s LS wrote by email of 14 June 2019 (Production

Background

[22]to the Claimant expressing the Respondent’s disappointment “that you have felt it necessary to send inflammatory and unfounded comments to an external media channel, and in addition discuss this matter with colleagues in an inappropriate manner … and ultimately misrepresenting ATS.” And “we are now seeking legal advice to consider the motives and integrity around your behaviour..”. (28) By letter of 21 June 2019 (Production 23) the Claimant was informed that his grievance appeal would be determined by written submissions; (29) The ICO issued findings in relation to the Claimant’s complaint against the Respondent by email of 21 June 2019 (Production 24). Those findings included that the Respondent “is processing an excessive amount of personal data….the app must collect details of the other apps an individual may have installed on the device….this would be classified as sensitive personal data…ATS are using an app which is inappropriate for its purposes…ATS has not been able to rely upon a lawful basis for processing this information”. The ICO stated that “ATS should review whether it is appropriate to use the app given the requirement to process excessive amounts of personal data…This review sould also look into ensuring that any consent recorded is freely given to ensure that this lawful basis can be relied upon.” (30) The Claimant sent an email on 24 June 2019 (Production 25) to JM in which he says “I have now received reply from ICO and I can not work for you again. ICO confirms what ATS has put me through is unlawful and illegal. I would llike you to make me a settlement offer so we can bring my employment with ATS to an end. Should ATS fail to make me a settlement offer I will take my case to exernal media and press criminal charges against our director Lord Robert Smith.” (31) The Claimant sent an email on 28 June 2019 (Production 26) to the Dundee Courier and copied it to LS and JM. In that email he states that the ICO confirmed in writing that “ATS has unlawfully accessed my personal mobile phone…..I believe my employer is putting its employee’s life and wellbeing at risk by acting very reckless and irresponsible. I am getting impression that my employer is financial services of ill repute..” (32) The Claimant sent a further email on 28 June 2019 (Production

[27]to the Dundee Courier and copied to LS and JM with a screenshot of a colleague’s WhatsApp status and asserting that this colleague manages “wiretapping agent and has access to employee phone…..without their consent”; (33) The Claimant sent an email starting “Hi Jean” dated 30 June 2019 (Production 29) to the Dundee Courier and copied it to JM and LS in which he refers to the impact things are having on his father’s health and that if anything happens to his father he will “hold ats management accountable and it will be a case of manslaughter “. He concludes the email by stating “If anything happen to my father as a result of this I will chase you for the rest of your life.” The Respondent reported this email to the Police as they considered it threatening and intimidating towards JM. Investigation (34) In June 2019 RL was appointed to consider and investigate the the concerns they had with the Claimant’s conduct particularly in light of his LinkedIn communications to colleagues, emails to the BBC and Dundee Courier and emails to JM and LS. Not the complaint to the ICO. (35) RL had joined the Respondent in March of 2019. He was responsible for the delivery and performance of the Respondent’s IT Systems. The Claimant was not known to him personally, but he was aware of him. He considered the Claimant to be a valued employee. He was aware that the Claimant had been signed off ill since January 2019. The Respondent wanted him well and back to work. The Claimant was part of a small team and was missed. (36) RL was aware of the Claimant’s issues with regard to MobileIron and that there had been an internal and external report commissioned by the Respondent. He was also aware of the complaint the Claimant made to the ICO. (37) The internal and external reports had not concluded that sensitive personal data had been accessed. Whilst the MobileIron app had a lot of features,most of these had not been enabled on the version used by the Respondent and this had been confirmed to the Claimant. (38) The ICO Report had concluded that the Respondent’s should review their use of the MobileIron App and aso ensure that express consent was obtained from employees to its use.It had not concluded that personal data had been accessed. RL had to implement this and he confirmed processes had been reviewed following the ICO findings. (39) RL was of the view that the Internal Grievances and Appeal had been dealt with appropriately by the Respondent. The Claimant’s issues had been treated seriously and had been professionally investigated. The Respondent’s had spent £2000 on the commissioning of the external report and had implemented the recommendations that flowed from that, the internal report and the ICO. (40) These communications were, in RL’s view, unprofessional, unfounded and almost constituted harrassment. The email message of 30 June 2019 to JM (Production 29) was of particular concern. JM is a young female HR colleague who found the email threatening and had suffered anxiety as a consequence. Other members of the team had expressed concerns to RL about the Claimant’s issues with the Respondent. (41) Following consderation of these inappropriate messages RL had the Claimant’s email access turned off. This was done out of appreciation of the duty of care to other employees, customers, systems operated by the Respondent and duties to the Board and the Financial Services Regulator. Termination of Employment (42) RL took the decision to terminate the Claimant’s employment. The matter had become a conduct issue in light of his interactions with the Respondent, the media and his work colleagues. The Respondent had exhausted all means to get the Claimant back to work. It was clear to RL that there was no way forward for the Claimant to return to work. The Respondent had exhausted all avenues.The Claimant simply would not accept the outcome of the internal grievance, appeal and investigation into the use of the MolbileIron app. (43) RL considered the impact on the Respondent and its employees if the Claimant were to return to work. There would be anxiety and distress, work colleagues felt threatened. RL was of the view that there had been a complete breakdown in the relationship and of mutual trust and confidence between employer and employee. (44) RL issued the termination letter of 3 July 2019 (Production 31) to the Claimant setting out the reasons why his employment had been terminated. The letter confirmed the termination of the Claimant’s employment with immediate effect. RL considered that the relationship and mutual trust and confidence between employer and employee had broken down irretrievably. This was the reason (or principal reason) for termination of the Claimant’s employment. He based this conclusion on the inflammatory and unfounded comments made to external media, inappropriate approaches to colleagues misrepresenting the Respondent (LinkedIn messages), a direct threat to JM in his email of 30 June 2019, the fact that the Respondent had done all it could to resolve his issues and that the Claimant remained dissatisfied. (45) The fact that the Claimant had made a complaint to the ICO did not play any part in the Respondent’s decision to dismiss the Claimant; (46) In RL’s view the breakdown in the relationship and of mutual trust and confidence was accepted by the Claimant. (47) The Respondent communicated the outcome of the grievance appeal in writing to the Claimant by letter of 3 July 2019 (Production 30). The Respondent confirmed that the Claimant’s appeal was not upheld and confirmed that the Respondent had reviewed is policies and procedures following the ICO findings. It also stated that there was no evidence of inappropriate storing or access of his personal data. (48) The Claimant did not receive the letter of 3 July 2019 (Production

[31]until email from JM of 8 July 2019 sent it to him (Production 33); (49) The Claimant sent an email of 8 July 2019 (Production 32) to JM and LS stating “I no longer wish to be associated with ATS I have lost my trust and faith in ATS management after crisis which they have created.” (50) The Claimant received payment of 3 months pay in lieu of notice and accrued annual leave; (51) Following temination of his employment the Respondent became bankrupt; (52) The Respondent set up in business as self employed consultant in November 2020 and has earned in the region of £4000 (Gross) to date. The Relevant Law 9. The Claimant asserts a complaint of automatic unfair dismissal in breach of section 103A of the Act. Section 103A renders the dismissal of an employee automatically unfair where the reason (or, if more than one reason, the principal reason) for his dismissal is that he made a protected disclosure. 10. The onus of proof is upon the Claimant (Kuzel v Roche Products Ltd

2008 ICR 799

CA and Smith v Hayle Town Council [1978] I.C.R. 996.) Qualifying protected disclosure 11. In terms of sections 43B – 43H of the Act to be a qualifying protected disclosure the Claimant needs to satisfy the Tribunal that:(a) There was a disclosure of information;

(b) The subject matter of this disclosure related to a “relevant failure”;

(d) He had a reasonable belief that the disclosure was in the public interest; and

(e) the disclosure was made in accordance with one of the specified methods of disclosure. Disclosure of information (section 43B(1)) 12. The Employment Appeal Tribunal in the case of Cavendish Munro Professional Risks Management Ltd v Geduld

2010 ICR 325

provide guidance to the Tribunal highlight a distinction between “information” and an “allegation”. The EAT held the ordinary meaning of “information” is conveying facts”. Kilraine v London Borough of Wandsworth

[2018] EWCA Civ 1436

, CA highlights a distinction between “information” and an “allegation”. The Court of Appeal in Kilraine noted that there can be a distinction between "information" (the word used in ERA 1996 s.43B(1)) and an “allegation”. However, the concept of “information” as used in ERA 1996 s.43B(1) is capable of covering statements which might also be characterised as allegations. There must be a Qualifying Disclosure (section 43B(1)(a-f)) 13. 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. 14. This requires the Tribunal to consider whether or not the disclosure was (in the reasonable belief of the Claimant) (i) in the public interest and (ii) showed one or more of the matters contained within section 43B(1)(a-f). Reasonable Belief 15. It is the Claimant’s belief at the time of disclosure that is relevant and it is not necessary for the Claimant to prove that the infoirmation disclosed was actually true (Darnton v University of Surrey

2003 IRLR 133

). The Tribunal must assess the Claimant’s belief on an objective standard (Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

). 16. The EAT in Phoenix House Ltd v Stockman and anor

2016 IRLR 848

, give further guidance on the approach to be adopted : “on the facts believed to exist by an employee, a judgment must be made as to whether or not, first, that belief was reasonable and, secondly, whether objectively on the basis of those perceived facts there was a reasonable belief in the truth of the complaints.” Public Interest 17. The approach to be adopted by a Tribunal in considering whether a disclosure was in the public interest was as set out by the Court of Appeal in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed

[2017] EWCA Civ 979

. The Tribunal should determine whether the employee subjectively believed at the time of the disclosure that disclosure was in the public interest. If it was then the Tribunal should ask whether that belief was objectively reasonable. Disclosure must be made to person specified in section 43C to H. 18. In order to be a protected disclosure the Tribunal must consider to whom the disclosure was made and whether they fell within sections 43C-H. The reason (or, if more than one reason, the principal reason) for his dismissal 19. Once the Claimant has established that he made a qualifying protected disclosure he must then establish that the fact of making the disclosure was the reason (or, if more than one reason, the principal reason) for his dismissal. 20. In determining what the reason or principal reason for the dismissal was the Tribunal should ask itself whether, taken as a whole, the disclosures were the principal reason for the dismissal (El-Megrisi v Azad University (IR) in Oxford EAT 0448/08). Submissions 21. Both Parties made submissions orally and also submitted written submissions after the conclusion of the hearing. Discussion and Decision 22. The Tribunal heard evidence from the Claimant and Richard Lord (RL) of the Respondent. The Claimant 23. The Tribunal did not find the Claimant’s evidence to be credible or reliable. His evidence was contrary to the clear and unequivocal documentary evidence and inconsistent. Frequently the Claimant sought to avoid answering questions in cross examination from the Respondent’s solicitor. 24. By way of example, the Claimant repeatedly asserted that the ICO report had found that his personal mobile had been unlawfully accessed or hacked and gave full access to sms, social media and so on. This was stated in his email of 14 June 2019 (Production 21) to the BBC alleging “I have discovered my employer and in particular IT is hacking employee’s personal phone….They use a technology called mobile iron… this is wiretapping agent and….get full access to employee phone including microphone and camera, Whatsapp, socila media, etc.” The ICO report clearly did not support these assertions made by the Claimant. 25. The Claimant was asked about the cleary inapproriate and threatening emails he had sent to colleagues in cross examination. One such email was to JM. The Claimant sent an email starting “Hi Jean” dated 30 June 2019 (Production 29) to the Dundee Courier and copied it to JM amd LS in which he refers to the impact things are having on his father’s health and that if anything happens to his father he will “hold ats management accountable and it will be a case of manslaughter “. He concludes the email by stating “If anything happen to my father as a result of this I will chase you for the rest of your life.” The Respondent reported this email to the Police as they considered it threatening and intimidating towards JM. He refused to accept that this was a “threat” worthy of reporting to the Police and stated that the Police did not consider this threatening. When asked about this, the correspondence through LinkedIn with his work colleagues and the Dundee Courier he was reluctant to answer and appeared to find the line of questioning amusing. Ultimately he conceeded some of the corresondence was unprofessional and inappropriate. 26. Furthermore, the Claimant repeatedly asserted that the Respondent was not “transparent” despite all of the correspondence replying to his complaints, internal and external reports and copies of logs. The Respondent provided evidence to the Claimant (repeatedly) that his personal information had not been accessed. This included internal and external reports. The Claimant did not accept this evidence. The Tribunal did not accept that his view was supported by the evidence. Indeed, the Tribunal consider that the evidence contradicted the Claimant’s views. 27. The Claimant had not produced the ICO complaint which was alleged to constitute the protected disclosure. His complaint had been that the Respondent dismissed him as a direct result of him making a complaint to the ICO (paragraph 13 of his ET1 sets this out). This assertion was further supported at a Preliminary Hearing (PH) on 30 June 2020 where the Claimant produced a completed PH Agenda which stated that he had been dismissed due to a protected disclosure which was a complaint to the ICO. The Tribunal concludes at paragraph 19 of the PH Judgement that the Claimant has produced “enough information to enable his claim that he was automatically unfairly dismissed for making a protected disclosure to his employers and the Information Commissioner to proceed to a hearing.” The Tribunal went on (at paragraph 20) to dismiss any other claims made by the Claimant. 28. The Tribunal commented (at paragraph 14) of the PH Judgement that the Claimant had not yet lodged a copy of his complaint to the ICO but these were matters which could be sorted out. 29. The Tribunal also noted (at paragraph 13) of the PH Judgement that the Claimant maintained his grievance was a protected disclosure to the Respondent. 30. In his evidence the Claimant appeared to maintain that his protected disclosures were not just his complaint to the ICO (which he had failed to produce) and his grievance but also his emails to the media and his LinkedIn messages to his colleagues. This contradicted the position he had maintained since the lodging of his ET1 and at the PH on 30 June 2020. The Respondent had no notice of this change in his position nor was there any basis for this in the Claimant’s written pleadings. The Tribunal considered that the case for determination concerned the complaint to the ICO, his grievances and LinkedIn messages to work colleages constituting protected disclosures but not the emails to the media. What this did show was further inconsistent and contradictory evidence from the Claimant as to what his case was. This highlighted the lack of credibility and reliability of the Claimant’s evidence. 31. The Tribunal did accept the Claimant’s own evidence (which was supported by his own emails) that the relationship with the Respondent had broken down. The Claimant sent an email on 24 June 2019 (Production 25) to JM in which he says “I have now received reply from ICO and I can not work for you again. ICO confirms what ATS has put me through is unlawful and illegal. I would llike you to make me a settlement offer so we can bring my employment with ATS to an end. Should ATS fail to make me a settlement offer I will take my case to exernal media and press criminal charges against our director Lord Robert Smith.”

The Relevant Law

[32]The Claimant sent an email on 28 June 2019 (Production 26) to the Dundee Courier and copied it to LS and JM. In that email he stated that the ICO confirmed in writing that “ATS has unlawfully accessed my personal mobile phone…..I believe my employer is putting its employee’s life and wellbeing at risk by acting very reckless and irresponsible. I am getting impression that my employer is financial services of ill repute.”

[33]The Claimant sent an email of 8 July 2019 (Production 32) to JM and LS stating “I no longer wish to be associated with ATS I have lost my trust and faith in ATS management after crisis which they have created.” The Respondent

[34]The Claimant’s evidence can be contrasted with that of RL. The Tribunal accepted the evidence of RL. His evidence was clear and consistent with the documentary evidence that had been produced. His evidence was measured, considered, credible and reliable.

[35]RL had investigated and reached the decision to dismiss on the basis that the relationship and mutual trust and confidence had broken down irretrievably. RL considered this was the reason (or principal reason) for termination of the Claimant’s employment. He based this conclusion on the inflammatory and unfounded comments made to external media, inappropriate approaches to colleagues misrepresenting the Respondent (LinkedIn messages), a direct threat to JM in his email of 30 June 2019, the fact that the Respondent had done all it could to resolve his issues and that the Claimant remained dissatisfied. All of this was substantiated by the documentary evidence that had been produced.

[36]The Tribunal then went on to consider whether or not the Claimant had made qualifying protected disclosures to the ICO or his employer. Qualifying Protected Disclosure

[37]The Claimant produced the original complaint to the ICO the day after the Tribunal Hearing had concluded. As the Tribunal Hearing had concluded the Respondent had no opportunity to comment on, lead evidence or question the Claimant regarding the content of the complaint. The Claimant had been on notice since the PH on 30 June 2020 that he needed to specify the disclosure(s) he was relying upon. There would be potential prejudice to the Respondent if the complaint was to be allowed in evidence at this stage in the proceedings.

[38]The Tribunal considered the content of the complaint to the ICO. The ICO complaint was in the following terms: “Hi RE: Case Reference IC-05754-F3Q6 - confidential Company installed mobile device monitoring app on my personal android, company did not explain reason for this and I suspect this is very powerful app and that my line manager and team member whom control the dashboard are turning on full surveillance on and accessing , tracking my personal gps location, call logs, sms and maybe more. I have raised with HR but hr is also puzzled and they are trying to investigate this without involving managers involved. I am shocked that such powerful app was installed on personal phone and employer did not ask for explicit permission of me and now find myself in situation that is very stressful and difficult to prove if my manager and his colleagues have abused their power and data breach taken place. I have discussed with independent mobile iron consultant and they advised me to complain to you, I know for sure this app can access list of other personal apps I have on phone, and gps, other than this it can do much more however all depends on how much monitoring they will enable Alex”

[39]It also went on to mention that the Claimant complained that the Respondent had used his personal information without his consent and used his personal information in a way he didn’t expect. In terms of remedy from the ICO the Claimant asserted: “please help me understand 1. what are capabilities of this app, and how much can my manager spy on my personal device ( worst case scenario ) 2. please help me understand if he has spied on me and to what extend and what information he holds and whom he shared with and going forward how I can get them to apologise and protect the data which they already collected illegally. my doctor has placed me on medication for anxiety because of this .Please contact me and or my union representative Mr Jim email: dundee@gmb.org.uk before engaging with my employer ,my email: alex.forootan@hotmail.co.uk ,I believe my manager also monitors company email and as per my discussion with HR we should exclude him from the investigation, if we email company he will read the email.” Disclosure of information (section 43B(1)) ICO Complaint

[40]The Tribunal considered whether or not the ICO complaint was a disclosure of information as required under section 43B(1). The cases of Cavendish Munro Professional Risks Management Ltd v Geduld

2010 ICR 325

and Kilraine v London Borough of Wandsworth

[2018] EWCA Civ 1436

, CA provide guidance to the Tribunal and highlights a distinction between “information” and an “allegation”. The EAT held the ordinary meaning of “information” is “conveying facts”. The Court of Appeal in Kilraine noted that there can be a distinction between "information" (the word used in ERA 1996 s.43B(1)) and an “allegation”. However, the concept of “information” as used in ERA 1996 s.43B(1) is capable of covering statements which might also be characterised as allegations. The Tribunal considered that the Claimant was asking questions of the ICO to help him understand the capabilities of the app, whether he has been spied on, what information has been stored and what his colleagues who have access are doing (how can my manager spy on my personal device). The only aspect of his complaint to the ICO that could be said to be conveying facts was the fact that the app had been installed. The Tribunal find that the complaint to the ICO was an assertion of suspicions, allegations of the apps use and a request for assistance in his understanding of the capabilities of the app. The Tribunal considered that (following the more liberal approach of the Court of Appeal in Kilraine) this did constitute a disclosure of “information” as required under section 43B(1).

[41]The Claimant’s Grievance (Production 8) was submitted on 14 March 2019. It asserted (amongst others) that a “wire-tapping agent” had been installed on his personal mobile phone and that his personal email account had been compromised. It also included a list of 28 questions which the Claimant wished responded to.

[42]The Tribunal considered that the assertions in the Claimant’s Grievance were allegations and opinions. They were not disclosures of facts. That being said the Tribunal considered that the Grievance was capable of and did constitute a disclosure of “information” as required under section 43B(1). LinkedIn messages

[43]Leaving aside the issue as to whether or not the Linkedin messages constitute a disclosure to an employer, the Tribunal considered the content of the LinkedIn messages and whether they constituted the disclosure of information for the purposes of section 43B(1). The Claimant sent LinkedIn messages to Matteo Basso (a work colleague) on 12 and 13 June 2019 (Production 18) in which he stated ”I talked to HR and they confirm in writing that they can access your sms. And call logs.”

[44]The Claimant sent a LinkedIn message to Emma Gorman (a work colleague) on 13 June 2019 (Production 19) in which he asked if MobileIron had been installed on her personal phone and states “I think it gives my line manager and colleagues in IT full access to employee personal phone.”, “I guess I’m going to report my manager to the police.” He sent a further LinkedIn message on 12 July 2019 which stated “Looks like our chairman of ATS Lord Robert Smith was fined for bribery and corruption” and accuses him of being a “mobster”. This message makes no reference to the MobileIron app or any breach of legal duty by the Respondent. It only makes reference to Lord Robert Smith and makes accusations concerning him.

[45]The Claimant sent a LinkedIn message to Richard Glass (a work colleague) on 13 June 2019 (Production 20) stating “Corey installed app on my personal phone it seems like wiretapping agent called mobile iron. I wonder if he has also installed on your personal mobile too? I think gives him full remote access to my phone.”

[46]The Tribunal considered and found that these messages contained allegations, questions and assertions. The Tribunal considered that the June 2019 messages were capable of and did constitute a disclosure of “information” as required under section 43B(1). The 12 July 2019 message did not relate to the MobileIron app or any alleged breach of legal obligation by the Respondent. It only contained accusations about Lord Robert Smith. It did not constitute a disclosure of information under section 43B(1)

[47]The Tribunal find that the Grievance, the LinkedIn messages (under exception of the message of 12 July 2019) and the ICO complaint did constitute “information” as required under section 43B(1).

[48]Having reached this conclusion the Tribunal considered whether or not the “disclosures” satisfied any of the remaining tests. Did the disclosure (if it were a disclosure of information under section 43B(1)) show that the Respondent had failed to comply with any legal obligation section 43B(1)(b) of the ERA. ICO Complaint

[49]In so far as the complaint to the ICO alleges data breaches and access to/use of his personal data without his consent then this would appear to show that the Respondent had failed to comply with legal obligations in connection with his personal data.

[50]The Grievance, read together with the questions posed by the Claimant, (taken at their highest) may be said to constitute a disclosure of a failure to comply with legal obligations in connection with personal data. LinkedIn messages

[51]The LinkedIn messages (apart from the message of 12 July 2019) contain rather more vaugue assertions of monitoring or access to personal data which (taken at their highest) may be said to constitute a disclosure of a failure to comply with legal obligations in connection with personal data (under exception of the message of 12 July 2019 which could not). Reasonable Belief

[52]The Tribunal considered whether or not the disclosure was (in the reasonable belief of the Claimant)(i) in the public interest and

(ii) showed one or more of the matters contained within section 43B(1)(a-f). It is the Claimant’s belief at the time of disclosure that is relevant and it is not necessary for the Claimant to prove that the information disclosed was actually true (Darnton v University of Surrey

2003 IRLR 133

). The Tribunal must assess the Claimant’s belief on an objective standard (Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

[53]The Claimant submitted his Grievance on 14 March 2019. By that time, he had received responses by email from the Respondent on his particular queries about the use of the app and also received copies of the internal audit report (31 January 2019 (Production 6)) . The Claimant had been informed of the enabled capabilities of the app, the data accessed and usage.The information provided to the Claimant was clear and did not substantiate his assertions. ICO Complaint and LinkedIn Messages

[54]The Claimant issued his complaint to the ICO on 8 April 2019 and the LinkedIn messages in June. By that time he had received responses by email from the Respondent on his particular queries about the use of the app and also received copies of the internal (31 January 2019 (Production 6)) and external audit reports (27 March 2019 (Production 9)). The Claimant had been informed of the enabled capabilities of the app, the data accessed and usage.The information provided to the Claimant was clear and did not substantiate his assertions. The Claimant considered that the findings of the audits (both) were not independent, transparent and did not provide him with all of the information he required. He particularly objected to the external report on the basis that it had been produced by the suppliers of the app.

[55]The Tribunal did not accept the Claimant’s criticism of the reports and responses provided by the Respondent. He had been given full and frank responses from the Respondent to his queries. He had no reasonable basis to disbelieve or challenge the veracity of the information provided to him. He simply did not accept what he was told by them.

[56]At the point of making the Grievance, the complaint to the ICO and sending the LinkedIn messages in June to his colleagues the Claimant had no evidence upon which to base his assertions and complaints that the Respondent was in breach of any legal obligation. At it’s highest, the Claimant had a suspicion as to what the app was capable of and could be used for.

[57]The Tribunal considered that the Claimant did not hold a reasonable belief in respect of his disclosures in the circumstances and that the belief was not held on an objective basis. Public Interest

[58]The Tribunal followed the approach set out by the Court of Appeal in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed

[2017] EWCA Civ 979

[59]The Tribunal considered the state of knowledge of the Claimant at the time of the Grievance, the complaint to the ICO and the LinkedIn messages. At that point in time he had received the outcome of both internal and external reports. He had received detailed responses from the Respondent to his many queries. He simply did not accept the evidence and information he had been provided with. Against that factual backdrop the Tribunal considered that the Claimant did not subjectively believe that the disclosures he made were in the public interest. Even if the Tribunal were wrong in reaching that conclusion the Tribunal considered that the Claimant’s belief was not, in any event, objectively reasonable in the circumstances. The Claimant was clearly intent on pursuing his own agenda and suspicions. Disclosure must be made to person specified in section 43C to H.

[60]In this instance the Claimant asserts that his disclosures were made to his employer (section 43C(1)(a)) and the ICO (section 43F). Employer

[61]The Tribunal accepted and found that the Grievance of 14 March 2019 could constitute a disclosure to his employer.

[62]The Tribunal considered whether or not the LinkedIn messages could constitute a disclosure to his employer.

[63]The Claimant confirmed that the LinkedIn messages were sent to colleagues. It did not appear that these colleagues were in a position of seniority over the Claimant or that they had any specific responsibility for dealing with disclosures, grievances or complaints on the Respondent’s behalf. In the circumstances the Tribunal considered that the Linkedin messages could not be disclosures to an employer for the purposes of section 43C(1)(a). ICO

[64]The Tribunal accepted that disclosure to the ICO could be disclosure to an entity covered by section 43F.

Conclusion

[65]The Tribunal concluded that the Grievance, the ICO complaint and the LinkedIn messages did not constitute protected disclosures for the purposes of section 103A. The Claimant’s claim is unsucessful.

[66]In light of the Tribunal’s findings in relation to the ICO complaint it becomes academic whether or not it’s late production should be allowed.

[67]Furthermore, the Tribunal considered that even if the disclosures had been protected (which they were not) they did not form the reason or principal reason for dismissal. Reason for Dismissal

[68]In determining what the reason or principal reason for the dismissal was the Tribunal should ask itself whether, taken as a whole, the disclosures were the principal reason for the dismissal (El-Megrisi v Azad University (IR) in Oxford EAT 0448/08).

[69]The onus of proof is upon the Claimant (Kuzel v Roche Products Ltd

2008 ICR 799

CA and Smith v Hayle Town Council [1978] I.C.R. 996.) to establish that the reason (or principal reason) for dismissal was his making a protected disclosure to the ICO.

[70]The Tribunal had no hesitation in accepting the evidence of RL. Having considered the clear and unequivocal documentary evidence contained within the Claimant’s correspondence to the media, his work colleagues and especially HR it was evident that the relationship and mutual trust and confidence had irretrievably broken down.

[71]The Claimant accepted as much in his evidence. He had no trust and confidence in the Respondent. He confirmed this in his email to JM and LS referred to above (Production 32). His description of the Respondent as “financial services of ill repute” (Production 28) and statement that he “can not work for you again” in his email of 24 June 2019 to JM (Production 25) all supported this conclusion.

[72]The Claimant simply refused to accept the internal and external reports, grievance outcomes and the Respondent’s assurances that his personal data had not been breached. This underlined the absence of trust and confidence.

[73]The Tribunal accepted RL’s evidence that the principal reason for termination of the Claimant’s employment was the breakdown in the relationship and of mutual trust and confidence.

[74]The Tribunal accordingly find and determine that the principal reason for the termination of the Claimant’s employment was the breakdown in the relationship and of mutual trust and confidence.

[75]The claim is accordingly dismissed.