Mr D ThomasClaimantWren Kitchens LimitedRespondent
Before
Employment Judge GrayIn person for claimantMr Allanach (instructed by solicitor) for respondentDate 2 December 2024
JUDGMENT
The complaint that the claimant was unfairly dismissed is struck out.
REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than two years.[4]Therefore the claimant is not entitled to bring such a complaint.[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment. _____________________________ Employment Judge Gray Date: 20 June 2023
The Hearing
[1]We heard evidence from the claimant on his own behalf and from 3 witnesses on behalf of the respondent Mr Charalambous Mr Rogerson, and HR Adviser and Miss R Swannack, and HR business partner. We had an agreed bundle of 439 pages before us. We make the following findings of fact.[4]The claimant worked for the respondent as a kitchen designer between the 11 January 2021 and 15 December 2022.[5]The respondent is a well-known retailer of fitted kitchens. The people employed as designers are graded according to a number of key performance indicators, which are linked to the number of contacts they make with clients; the number of conversations they have with clients; the number of orders that are placed and the number of kitchens sold, for Case Number: 6000135/2022 7 example. These KPI's have a direct impact upon the grade of any kitchen designer, and the grade impacts on their pay. Kitchen designers are graded from A1 through to E2, with A1 being the top grade.[6]The grade is important to the kitchen designers because it impacts directly upon their opportunities for certain types of lead to be allocated to them. It also has an impact, because a poorly performing kitchen designer is at risk of being subject to the company capability procedure, with the potential for dismissal if there is no improvement.[7]The key performance indicators are measured on a weekly basis and reports are produced showing the performance of each designer at regular periods throughout the year. In addition, each designer is able to access the data in relation to themselves and is therefore able to see how their sales are impacting upon their grade.[8]Kitchen designers are paid a fairly low basic salary but can earn significant commission or bonus pay on top of that depending upon the sales that they make.[9]The metrics applied and the grading system applied to the claimant were, we find applied to all Wren kitchen designers nationally.[10]At some point during his employment the claimant became concerned about how the KPI’s and metrics were being used to measure performance, and noted that the system continued to take measurements and record data even when an employee was absent from the business on annual leave. This has not been denied by the respondent and we find as fact that it is correct.[11]The claimant became concerned that the system would continue measuring his performance if he was absent on paternity leave or if other members of staff were absent on other types of statutory leave.[12]We find that the concern that the claimant had, was that because the system would continue to monitor his performance when he was absent, he would be Case Number: 6000135/2022 8 recorded as having achieved no sales , made no contacts and s having sold no kitchens . This would have a negative impact on his grading, which in turn would have a negative impact on the opportunities available to him and place him at risk of capability or performance procedures.[13]Mr Charalambous accepted that the metrics system would continue to measure performance whilst a person was absent on leave. We find that this was true regardless of whether it was annual leave or paternity leave.[14]Some questions were asked about whether the same would apply when somebody was absent on maternity leave, but Mr Charalambous was not able to confirm whether the same would apply or not.[15]We were referred to evidence from the respondent, in which Mr Charalambous had been asked to confirm the reason for the absence of certain members of his team and we note that a number of cases absence was due to maternity leave.[16]We find that all members of the design staff throughout the company would be impacted in the same way by the continuous assessment during periods of annual leave, because all members of staff would be entitled to the same pro rata amount of leave each year.[17]Mr Thomas raised concerns that some people were therefore encouraged to come into work or chose to come into work, whilst on leave, in order to increase their ratings and that this was unfair, but this is not one of the matters that we have had to determine in this case. Case Number: 6000135/2022 9[18]We find that the measuring system continued to run whilst the claimant was absent on paternity leave and from the evidence we have heard, we infer that this would apply to anybody taking paternity leave.[19]Whilst the respondent witnesses and Mr Willoughby, counsel for the respondent, have asserted that not all the metrics would be affected, and whilst they dispute that there is any significant detrimental impact felt by somebody who takes two-weeks paternity leave, we find that the claimant genuinely believed, for good reason that the impact upon him would be and was detrimental, because it impacted on his grading. We also find that the claimant believed that this was a breach of the equality legislation.[20]Whilst the right to take paternity leave is not expressly protected under the Equality Act 2010 in the same way as pregnancy and maternity absences, the person who takes paternity leave has a claim if they are subject to detriment or a claim of automatic unfair dismissal, if they are dismissed for having taken paternity leave, under other legislative provisions.[21]We all agree that it was entirely reasonable for the claimant to believe that paternity was protected under the Equality Act 2010 in the same way as maternity leave, although he was mistaken, because he is correct that people who take paternity leave are protected in law if they are subject to detriment or if they are dismissed.[22]In May 2022 the claimant knew that he had a period of paternity leave coming up and we find that he had a conversation with his manager, Mr Charalambous, at some point in May 2021, about his leave and his concerns about the impact it would have on his grade.[23]In his witness statement he said he took advantage of one of his manager’s pop over moments to seek support and to address the company’s performance system. He said that he emphasised a potential breach of the law and expressed the adverse effects that the system would have upon his upcoming paternity leave. He says that he explained that employees set to Case Number: 6000135/2022 10 marry should be entitled to do so without fearing any negative consequences or repercussions.[24]Mr Charalambous did not recall a meeting with the claimant in May 2022, at which the claimant had raised the system and emphasised a potential breach of equalities law, but he said if any conversation had taken place, it would have been about the impact on annual leave rather than any other sort of leave.[25]We disagree. We find that a meeting did take place and we find that the claimant did raise a concern that he would be adversely affected in his grading or his metrics by taking a period of paternity leave and that he considered that this was in breach of legislative provisions. We also find that he did at that point make comments to the effect that other people in the company should be allowed to take their leave without fearing adverse consequences. We accept that he spoke about people taking leave to get married.[26]The reason we find that the claimant did speak about these matters, is that at this point the claimant had been employed for 17 months and had had a number of periods of annual leave.[27]In May he was anticipating his paternity leave, and we all agree that it is highly probable that it was this fact that triggered him to have a conversation with Mr Charalambous about his concerns and his belief that the process was unfair and potentially in breach of the law.[28]On the 14 June 2022 the claimant went on paternity leave for two weeks.[29]The claimant alleges that when he returned from his paternity leave, he had another conversation with Mr Charalambous at his desk, and that he, the claimant, told him that the grading system penalised people for exercising their statutory rights and was in breach of the Equality Act.[30]We find that on return from his paternity leave, his absence and therefore his lack of contacts or sales, had had a negative impact on the claimant’s metrics, and that he was on a lower grade than he had been. Case Number: 6000135/2022 11[31]The claimant has said nothing in his witness statement about this allegation. The evidence he gives about a popover conversation with Mr Charalambous is in paragraph 16 and 17 of his witness statement and the claimant clarified under cross examination that on that paragraph, he was referring to the discussion he had before the Paternity leave and not on his return.[32]There is no other evidence to support the fact that a second conversation took place and Mr Charalambous denies that it did. He was not challenged about this by the claimant in cross examination.[33]We recognise that the claimant, represented by his wife was appearing as a litigant in person with assistance. Mrs Thomas worked hard to represent the claimant and asked many appropriate questions in cross examination. She is not a lawyer, but the judge explained to her on a number of occasions that it was necessary for her to challenge Mr Charalambous on points of evidence where there was disagreement and that it was necessary for her to formally put the case to him. The judge explained what this meant and also reminded Mrs Thomas about the list of issues and the matters which the tribunal needed to determine and about which we therefore needed evidence. Where appropriate the judge assisted Mrs Thomas with formulating questions.[34]Despite recognising the difficulty faced by a litigant in person, a tribunal can only decide a case on the basis of the evidence that they have before them.[35]Therefore in respect of this allegation that there was a second meeting after return from paternity leave at which a public interest disclosure was made, since we have no evidence in chief from the claimant about that meeting at all and a denial from the respondent that it took place which has not been challenged, we find that on balance of probabilities the claimant has not proved that such a meeting took place.[36]Further we find that even had we accepted that there had been discussions, and even if we accepted that the broad topic the claimant had raised was the unfairness of the metrics and the impact on leave, we would not have Case Number: 6000135/2022 12 considered that the evidence presented by the claimant was sufficient to demonstrate a disclosure of information.[37]The claimant also alleges that on his return from paternity leave, Mr Charalambous became distant and ignored the claimant.[38]The claimant has made no reference to this allegation within his witness statement, and has provided no detail at all under cross examination and nor did he put to Mr Charalambous any example when he says that he, the claimant, was ignored by Mr Charalambous, or of any occasion when he was unable to contact him for example, or when something occurred that made the claimant consider that Mr Charalambous was acting in a distant way.[39]What we have been referred to in the bundle of documents, are a number of emails and messages sent by Mr Charalambous to the team in general, in which the claimant is mentioned in positive terms. We find that the claimant has been treated in the same way as all other employees in this respect.[40]The respondent denies this allegation. We find the claimant has not proved on balance of probabilities that Mr Charalambous was distant, or that he ignored the claimant on the claimant’s return from paternity leave.[41]The Claimant says that he then had two planned holiday absences, on the 12 July 2022 and the 2 August 2022 and that on return from his leave Mr Charalambous appeared to the claimant to be hovering around him more often.[42]The claimant told us that he considered that using his leave to celebrate his sister's wedding and his own wedding anniversary, as well as his 40th birthday and taking paternity leave, had adversely affected his performance statistics, but he does not assert that Mr Charalambous hovered around him when he returned from any period of leave, as is alleged in the list of
issues.
[43]We all agree that the allegation that Mr Charalambous was hovering around the claimant is arguably inconsistent with an allegation that Mr Charalambous was distant, but since the claimant gives no evidence about Case Number: 6000135/2022 13 this allegation and since it is denied by the respondent, we find that the claimant has not proved on balance of probabilities that this did in fact happen. The meeting of 11 October 2022[44]Between his return to work at the end of July and the 11 October 2022 the claimants KPI’s and his grade deteriorated.[45]On the 11 October when the claimant attended at work he was called into a meeting, without notice, with Mr Charalambous and Hannah Ayling who attended to take notes.[46]We have been referred to the record of conversation in respect of this meeting.[47]The record states at the beginning, that the reason for the meeting is that there were concerns regarding his underperformance, namely not meeting the performance expectations expected from you as a Wren designer. We find that the cause for concern was that the claimant’s grade had reduced, and he had not met the expectations of the company, and that his performance over the last four weeks and his year-to-date performance was a cause for concern. It was noted that this was not part of the disciplinary process. We all agree that this was the only reason this meeting was called at this time.[48]Mr Charalambous presented figures to the claimant which we find demonstrated the claimant was not meeting the expectations of the company at that point. The claimant was told that he was currently an E2 designer, placed in the bottom 5 designers of his service group.[49]Reference was made to the claimant’s current year to date performance. The claimant was told for example that he was spending 24 hours per kitchen sold, meaning he was selling 1.4 kitchens per week, against an expectation that a designer would sell a minimum of two kitchens per week. Case Number: 6000135/2022 14[50]Following presentation of these figures the claimant was asked if he had comments, and is recorded as having said as previously discussed, a lot of the stats dropped where I had two weeks paternity leave and two weeks holiday. I would argue that that may have been a high sales period. I took this time off, my performance was good and above average and when you have time off it takes time to build your diary back up. When I'm here I do well but I'm still recovering from that time off with my lead back, my child came ten days earlier than expected I did not get time to look after my customers and I'm still recovering.[51]Mr Charalambous says that this was an accurate note of the. He points to the fact that the claimant signed at the bottom of each page to say that he had read the notes and agreed that the contents were inaccurate and true reflection of the meeting.[52]The claimant says that the notes are not an accurate reflection of what he said at the time and alleges that he was ushered into signing the notes by Mr Charalambous at the end of the meeting and was told that it was a formality and that the claimant need not worry about the notes and that he should just get back to selling kitchens.[53]In particular, the claimant says that in the meeting on the 11 October 2022 he made a second protected disclosure, in that he referred to his previous discussions and repeated that he felt the grading system was unfair.[54]We find that the claimant did refer back to previous discussions or comments made by him before he started his paternity leave. It is not recorded that he said that the system was unfair, but the claimant asserts that this is because the notes themselves were inaccurate.[55]We find that the claimant was given very little time to look at the notes and we accept his evidence that he was ushered into signing them in circumstances where he was told that he had nothing to worry about. We find that the claimant was brought into the meeting without notice and that he was not therefore able to arrange to have a companion with him, who might have Case Number: 6000135/2022 15 been able to take notes on his behalf. We find that the claimant was not provided with a copy of the notes at any time following the discussion so that he could reflect on them with more time and that he only saw them for the first time when he made a subject access request after termination of his employment.[56]We find that it is highly probable that the notes taken in this meeting, as in many meetings, were not a verbatim account but were written with an intention to capture the generalities of what was said, so that they are broadly accurate as to the matters discussed, but that the detail has not been recorded.[57]We find it is more likely than not that the claimant, who had formed a clear view at this point that the grading system was unfair and did have an adverse impact on employees when they took annual leave and who had formed a view that the system did have an adverse impact on those who took paternity leave and had had an adverse impact on him because he took paternity leave, would have made and did make that comment during the course of this meeting.[58]In his witness statement he says he reiterated his concerns and asked his manager to escalate the company's legal violation and advocate for action. He says he was met with a dismissive response. He suggests that Mr Charalambous stated that Wren were a big company, who are not going to change their systems for some designer from Portsmouth. He also alleges that Mr Charalambous told him to put up or shut up, that it used to be a lot worse, and suggested that the claimant was lucky.[59]Mr Charalambous denies that he made those comments.[60]After the meeting we find that the claimant exchanged text messages or WhatsApp messages with a colleague. We have therefore considered what he wrote at the time in those messages.[61]We find that in those messages, he referred in broad terms to comments that he said he had made during the course of the meeting. He is adamant that Case Number: 6000135/2022 16 during that first meeting he did make a number of comments about his views about the grading system and the fact that whilst on maternity/paternity leave the system continued to run with the effect that somebody on statutory paternity leave would still effectively lose ground under the grading system. He says that he did say that this was a breach of the Equality Act and he was adamant that he had also commented that the system would disadvantage anybody taking such leave or indeed taking annual leave.[62]He says that he did raise these matters before that meeting with his manager, but he did it verbally and there was no record of conversations.[63]We find that he referred to the meeting and said it was the start of a performance related HR paper trail that can later be used to justify dismissal. He says that he made a point to highlight disappointment that a company that actively promotes themselves as a family run business treats their own people like shit although he said in his evidence under cross examination that he had not used that word in the meeting, but was using it in his discussion with his colleague. He also said the reply was, it used to be a lot worse. The claimant also says that he was made to turn his phone off during the course of the meeting.[64]The exchange with his colleague was quite a long one and the claimant made reference to a number of comments that he had made. He said that at one point he had replied that the targets set for some employees were unrealistic and that people feel forced to use their free time to increase their unpaid working time.[65]In his message, he does make reference to the Equality Act being in place to protect people against harassment or victimisation but he does not specifically state that he mentioned this in the meeting. In a number of places, he does say I said but in a number of places he refers to other matters without stating whether or not he raised them within the meeting. For example, he makes reference to what would happen if he used the newly implemented parental leave provisions. Case Number: 6000135/2022 17[66]We find that the exchange with his work colleague was in effect letting off some steam and that some of the matters that he mentions were matters that he raised in the meeting but by no means all of them. We also find that he did not mention to his colleague all the matters that he had mentioned in the meeting.[67]However, we find that overall the messages provide some support for the Claimant’s contention that during the course of that meeting he reiterated his generic concerns about the fairness of the system and its impact upon him, in the context of him having taken paternity leave and in the context of him believing that the company were violating legal provisions. We find that the claimant did make these remarks and that they did refer back to his earlier conversation with Mr Charalambous.[68]Taken together we find that the claimant did disclose information in that meeting of a concern that the company metrics had an adverse impact on his grading and metrics and on the grading and metrics of employees generally and that he considered the company might be in breach of legal obligations.[69]We find that at that point the claimant held a firm and reasonable belief that the company were breaching obligations under equality legislation and legislation in respect of parental leave and that the matter affected not just him but other employees in the company, who might want to take leave which might be relevant to protected characteristics such as maternity. We conclude that he disclosed information which he reasonably believed tended to show a breach of legal obligations , by referring to his own situation and the metrics in his case.[70]We also conclude that he did believe this to be in the pubic interest, because he was concerned about the impact on not just on himself, but also on other employees.[71]We find that the notes, although a fair and accurate summary of what the respondents said, because they had been populated in advance, were not a Case Number: 6000135/2022 18 full account of what the claimant had said but rather were a summary or overview off the discussion.[72]On the 14 October 2022 the claimant wrote to Hannah Ayling, who had taken notes in the meeting on the 11 October. He wrote initially to request approval for a day off for hospital appointment and also to request a Sunday and Monday off for a family christening . These were granted and confirmed by Hannah, and he then responded asking if she could tell him his current grade and e-mail him how the grade scoring system works.[73]In particular he asked does the system freeze my grade at the time of taking leave and I return at the same grade or will it continue to lower my grade in my absence just thinking about my upcoming leave etc…...[74]Hannah Ayling responded attaching the last four weeks stats and saying he was a D2 and year to date E1 but made no reference or response to the question he had specifically asked.[75]In the email, the claimant makes no reference to any discussion about this issue having taken place in the meeting, nor does Hannah Ayling respond to his question asking why he might have that view. We find it surprising that the claimant did not refer back to what he says was discussed at the meeting, but find that the letter does not assist in determining what was said in the meeting. We do find it surprising that Hannah Ayling, who knew that the claimant had raised a concern at the meeting, at least about the way the metrics were applied, because she had noted it, failed to respond to his question.[76]At the end of the meeting, Mr Thomas was told that Mr Charalambous had a number of expectations in respect to the KPI's to be achieved going forward and that these would be reviewed on Sunday 13 November 2022. The claimant does not dispute that this was said to him and accepts that he confirmed he understood and agreed the expectations.[77]He was also told at the end of the meeting that Mr Charalambous expected to see an immediate and sustained improvement with regard to these Case Number: 6000135/2022 19 expectations. He was told that if he failed to show this improvement in the areas highlighted, it may lead to termination of his employment contract, due to continued underperformance.[78]We find that the expectations set were set for genuine reasons and that the statement that a failure to improve might lead to termination of his contract was a correct statement of the respondent's understanding of the capability process for those who had less than two years employment.[79]We find this despite the fact that we find on balance of probabilities that Mr Charalambous did say words to the effect that the claimant need not worry. We do not take from that that Mr Charalambous was suggesting that the claimant need not improve, but rather that it was said by way of general encouragement.[80]We accept that the claimant had little time to review the notes and we accept his evidence that at the time, he had no reason to think that the notes or their accuracy, were going to be an issue in the future.[81]Following that meeting, we find that the claimant’s performance did not improve in any significant way. His grade remained around the D1/ D2 level and overall we accept that he was Year to Date, at about E grade. Whilst the figures we have seen have some variation, we find that Mr Charalambous formed a reasonable view from those figures that the claimant was not meeting the required KPI's and his performance was not improving. The Claimant does not dispute that this was the case.[82]The meeting that Mr Charalambous had said would take place on the 13 November 2022 did not in fact take place. The meeting was re arranged, according to Mr Charalambous, but if it was, there was no communication of this fact to the claimant. The claimant did not raise any issue about this at the time. Given the informal way that things were arranged, we find that the claimant was reasonable to think nothing of it, and just assume that this was because there was no issue. Case Number: 6000135/2022 20[83]However, the claimant did know that his performance was poor, and he did know that he needed to do something to improve.[84]We have seen no evidence that the claimant was told that a meeting would take place on a different date and the claimant asserts that no further meeting took place until he was called to a meeting in December 2022.[85]Mr Charalambous has told the tribunal that there was a meeting with the claimant on the 23 November 2022. He refers us to an e-mail which he sent to himself on the 9 December 2022, with the subject heading meeting notes 23 November 2022. In that e-mail he says morning, following on from our meeting on the 23 November below is an overview of performance against targets set.[86]He sets out targets, which repeated the targets set at the meeting of 11 October, of 8 net orders sold over a four week period following the meeting; next 4 weeks cancellations to be sub 11% and 50% net conversion over the next 4 weeks, and then noted the performance over the four week period, in particular noting that targets had not been achieved and noting that the original date had been moved from the 13th to the 23 November. At the end of the note he states, as discussed in meeting we will review performance again.[87]We have to determine whether this meeting took place or not. We take into account that we find that Mr Thomas clearly felt comfortable in raising concerns about working practices with his employer and was very willing to accept that he was not meeting his targets and that his grade had deteriorated. His point is that there were reasons why this was happening and that he sought to make those clear to his managers. We can find no reason why the claimant would deny that this meeting took place.[88]We find that the claimant was far more likely to have remembered a performance meeting on the 23 November, because it would have been an event of importance to him, then he is to have dishonestly stated that no such meeting took place. Case Number: 6000135/2022 21[89]Further since we have no notes of the meeting, and since Mr Charalambous only has the e-mail he sent to himself, which we find was not a note of any meeting with the claimant, we find it is far more likely that Mr Charalambous, as a busy manager, managing a number of employees, a number of whom were underperforming, possibly reviewed the targets himself, and is mistaken about having actually had the discussion with the claimant.[90]Therefore, on balance of probabilities we find it more likely that the meeting did not take place.[91]On the 8 December 2022 the claimant was late for work. We find that he was only a few minutes late for work and that it was the first time he had been late during the course of his employment.[92]Mr Charalambous spoke to the claimant about his lateness, and we find that the claimant did seek to explain his lateness as resulting from icy conditions and him having hurt his leg.[93]We find that Mr Charalambous did suggest to the claimant that he needed to ensure that he was in work at least 5 minutes before his starting time, and that there was an ill-natured exchange between the two men about start times and what the company could and could not insist upon.[94]We all agree that one instance of lateness in 18 months in most cases would not be considered particularly serious, but we also observe that it is not unreasonable in many workplaces for an employer to expect an employee to be ready to start work at the start of their shift and therefore expect them to arrive before the start of their shift in order that they are. This was the expectation we find, in this workplace.[95]On the 9 December 2022 we find that Mr Charalambous received information from head office concerning the claimant and others, in advance of a regular managers meeting which gave him cause for further concern. He told us and we accept that he was shocked to see that the claimant was not meeting his Case Number: 6000135/2022 22 targets and was underperforming on a number of key metrics and that the claimant’s figures were still poor and showing no sign of improvement.[96]On the 10 December 2022 the claimant says he arrived on time for work, but Mr Charalambous asserts that the claimant was not ready to start work, because he had not attended early enough. We find that whatever the truth of the arrival time, a further ill-natured discussion ensued between the two men.[97]We find that the claimant did assert that he had been on time and also asserted that Mr Charalambous had no right to ask him to work extra time unpaid or to attend early, because that time would work time which was unpaid.[98]Under cross examination , the claimant was adamant that he was only late for work on one occasion and that he did raise an issue with his manager at the time about the manager's assertion that he needed to be in work 15 minutes before his start time. He told us that his manager believed that this was a contractual requirement. The Claimant told us that he asked his manager to tell him where it was in his contract and that Mr Charalambous became aggressive to him.[99]He also is adamant that he did suggest to Mr Charalambous that this was a breach of national minimum wage provisions, because the requirement to work an extra 15 minutes, unpaid, every day would impact on his pay with the result that he would probably end up being paid less than the national minimum wage.[100]The claimant was quite clear in his evidence that he believed that these concerns about pay levels were realistic and that they were breaches of legal obligations and that he thought that these were things that would impact not just him but his colleagues, both those employed within Portsmouth but also colleagues employed elsewhere within the business as well as those who might be new starters. Case Number: 6000135/2022 23[101]He did not accept that he was only raising these matters because of his own concerns and was adamant that he did say at the time that this could have an impact on other people, taking different types of leave such as leave for religious holidays for example.[102]We find that Mr Thomas does believe that to be true now, and does believe that this is what he said at the time . However, we must determine what he did as a matter of fact say at the time, and what he reasonably believed at the time .[103]We bear in mind that Mr Charalambous is equally adamant that the conversation did not take place in the way that the claimant is now asserting.[104]find that the different recollections of that conversation are informed by their respective positions. We think the truth of the exchange lies somewhere between them.[105]Mr Thomas had raised that he had a long train journey, and that there was only one train an hour and that he had a new baby and wanted to spend time with her in the morning . He objected to being spoken to again. We find that Mr Charalambous was irritated with the claimant for not making the effort, to be early and ready to start work on time , which he had raised for with the claimant earlier that week and frustrated with the claimant for arguing about with him it and suggesting that the manager could not insist upon him being at work 5 or 15 minutes early.[106]There are no notes of that conversation, but Mr Charalambous did contact human resources on the 10 December 2022 and the Claimant also wrote a letter to human resources complaining about his manager on the 13 December 2022. We have therefore considered what each man wrote at the time, and considered how far it assists us in determining what was said as a matter of fact.[107]The claimant’s letter is 2 1/2 pages long. The claimant referred to a conversation on the 10 December and gives what he says is a transcript of what he recollects was said. He states that his manager has suddenly started Case Number: 6000135/2022 24 to firmly inform him that he is contractually obliged to be at his desk 15 minutes before his actual rostered start time. He says his manager had suggested that he was being lenient, cutting it down to requirement to start only 5 minutes early. He then says that he stated getting here earlier would mean getting an hour earlier train and take away time from my six month old daughter, time I considered to be precious. Can you not show me a little grace especially as I have an injured leg and it's icy outside today, mate, I walked as fast as I could from the station.[108]He suggests Mr Charalambous responded aggressively and said he could have picked him up, if Mr Thomas had phoned him. He then says that he found his managers wording, body language and tone to be threatening and insinuating and that he, the claimant, is unable to locate the part of his contract his manager was referring to.[109]He also refers to informal popovers to Tony's desk and his unpredictable moods and complains about the environment that his manager Tony, Mr Charalambous has created for him.[110]He does not suggest in that letter that he had asserted that the requirement to be 15 minutes or even 5 minutes early for work was a breach of the national minimum wage legislation. If it was a matter of importance to him, we would have expected him to have mentioned it, but we find on balance this letter does not give much assistance in determining everything that was said at the meeting.[111]In respect of the letter written on the 13 December 2022 we find that Mr Charalambous had not been told about the letter and had not seen it. The letter was sent to human resources and the claimant received a response from somebody called Rachel Swannack who gave evidence to us that she did not make Mr Charalambous aware of the existence of the grievance between the 13th and the 15th of December 2022. She had written back to the claimant asking him if he wanted the information to be shared with his manager but had not received a response at that point from the claimant. We accept her evince as true. Case Number: 6000135/2022 25[112]On the 10 December at 10.14am Mr Charalambous contacted human resources and asked somebody to give him a call. He said he had some concerns with regards to one of his designers that he had previously had an ROC with, and that he had completed a late form earlier in the week for this designer and that there had been another incident that morning. He said it resulted in a discussion that needs clarification. We find that this was a reference to the claimant’s assertion that Mr Charalambous could not insist upon him attending at the workplace 5 or 15 minutes before his start time. Mr Charalambous makes no reference to the claimant having referred to the national minimum wage provisions.[113]Mr Charalambous subsequently did have a telephone call with somebody from human resources, and was advised that he could have a further discussion with the claimant to manage his performance; that the claimant's performance would be grounds for termination of his contract, but it was a matter for Mr Charalambous.[114]We find as fact, having consider all the evidence and on balance of probabilities, that Mr Charalambous did say to the claimant that he would contact HR. The context was a discussion in which Mr Charalambous was raising the claimant’s time keeping for a second time in 3 days. The claimant did not agree that he had been late, but Mr Charalambous was unhappy that the claimant had not been in work and ready to start at the correct time. This led to a discussion about the need to be in work before the start time, so that an employee was ready to start work on time.[115]It was , we find , not unreasonable for Mr Charalambous to be keeping an eye on the claimant , who he considered was not performing at the level expected. He did subsequently take advice from HR about the claimant, and we find , on balance it is more likely than not that he did say words to the effect, I am going to speak to HR to see about that . We find that he was referring to the suggestion about the NMW, but we also find that he was referring to claimants’ performance. We find it is likely that he did say something to the effect that he had tried with the claimant . Case Number: 6000135/2022 26[116]We have seen the email that Mr Charalambous sent subsequently, and find that it reflects a conversation, or disagreement about the contractual requirements and expectations that an employees would attend at the place of work at latest 5 minutes before the start of the day, so that they would be ready to start at the time their shift started.[117]Therefore we find that Mr Charalambous told the claimant that there was an expectation that he would arrive at least 15 minutes early for work, but that that was not being enforced and that 5 minutes was acceptable. We find that the claimant did make a comment to Mr Charalambous that he considered that if the 15 minute rule was imposed, this might be in breach of the national minimum wage provisions because it would require people to work beyond their hours, on an unpaid basis, affecting their rate of pay.[118]We find that the claimant had a reasonable belief that the respondent would fail to comply with a legal obligation, and he conveyed information to Mr Charalambous of his belief. We find that he did think and did say that he believed that this was something that would affect other employees in the company, if the 15 minute rule were to be enforced.[119]We find that the comment by Mr Charalambous that he was going to see what could be done, that he would speak to HR, could well have been perceived as detriment by the claimant.[120]The claimant’s allegation as set out in the list of issues is that Mr Charalambous told him that he should put up or shut up , after the 10 December 2022. However, in his witness statement he suggests that a comment was made by Mr Charalambous in the October meeting. He says that when he raised the matter, he was met with a dismissive response to the effect that Wren are a big company they're not going to change their systems just because some little designer in Portsmouth has a problem it's put up or shut up and used to be a lot worse. Case Number: 6000135/2022 27[121]He says this was in the context of him suggesting to Mr Charalambous that he should take the claimants concerns about the company metrics up with the company.[122]Mr Charalambous denies saying this at any time.[123]The claimant says he was raising a genuine concern and that he was raising a matter that he considered impacted upon him and that he wanted it raised more generally he says that the comment made to him was detrimental.[124]In his witness statement the claimant does give significant detail about the events on the 10 December and after the 10 December 2022, he suggests that Mr Charalambous did make a number of comments to him including I'm not going round in circles I'm going to contact HR and see what I can do about you. But he does not suggest that the comment put up or shut up was made after the 10 December.[125]The claimant’s specific allegation is that he was subject to a detriment after the decision 10 December 2022, by Mr Charalambous telling him to put up or shut up. We have no evidence that such a comment was made after the 10 December. It is not suggested by the claimant that the comment was made on more than one occasion, and we find on that basis that it was not made after the 10 December 2022.[126]We therefore find that the claimant has not proved on balance of probabilities that he was subject to detriment as he alleged and as is recorded in the list of issues.[127]The claimant alleges that following the 10 December meeting Mr Charalambous hovered around him and also unnecessarily asked other members of staff where the claimant was.[128]In his witness statement he refers to an escalating pattern of avoidance and says he was excluded from group training sessions. He also says that he suffered some intimidation by employees frequently telling him Tony's looking for you. Case Number: 6000135/2022 28[129]We set out above the details of the claimants letter of 13 December in which he repeats some of the comments. The claimant says in that letter that after the confrontational encounter Tony asked multiple staff members for my whereabouts he considered this to be immature, bullying and harassment.[130]We find it more likely than not on the basis of the evidence that this is what happened, and we accept that increased observation of a particular employee is capable of being detrimental treatment and was detrimental in this case. That does not of course mean that it was necessarily unreasonable treatment or that there was not a valid explanation for it, which has nothing to do with any protected disclosure. We come back to this below, in our
conclusions.
[131]The claimant alleges that Mr Charalambous weaponized human resources and relies upon this as a detriment.[132]We find that the discussion between the two of them irritated Mr Charalambous and that he did therefore take some advice from HR. We find that it is standard behavior for a manager to take advice from HR about the contract of employment, or what to do about a poorly performing employee. We find that Mr Charalambous took advice because he wanted to know how to manage an employee who he considered was underperforming.[133]We understand that claimant to mean that his manager was using HR to find a way of dismissing him and was doing so because of his alleged protected disclosures.[134]We find that at this point the Mr Charalambous had lost patience with the claimant. We found that he did decide to take advice to see what his options were with the claimant. He states in his witness statement that he considered that the claimant’s work motivation had dropped and this his attitude towards the company and management had worsened, and he suggests that the claimant had become jaded and disillusioned.[135]He said this manifested in the claimant’s attitude towards him as manager and that the claimant would arrive at work a minute before he was due to Case Number: 6000135/2022 29 start, leaving customers waiting for their appointments or that he would finish appointments with customers early, in order to finish on time . The claimant was not asked about this in cross examination, and there was no other evidence of it before us, but nor was Mr Charalambous challenged by the claimant under cross examination about this. The judge asked Mr Charalambous whether or not it was possible that the view he had formed about the claimant in December 2022 was in reality anything to do with things the claimant had said about the company metrics or things he had said about the national minimum wage and Mr Charalambous denied forcefully that they were and reasserted that his concerns about the claimant were to do with his poor performance.[136]Reminding ourselves that we must determine the motivation of Mr Charalambous, and the possibility of drawing inferences from primary facts, we have considered what evidence we have about how the company and Mr Charalambous dealt with people who are performing poorly more generally.[137]We find that the claimant was one of several employees not performing well and find that there was at least one other employee who had been warned that their performance must improve. We have been referred to some exchanges that the claimant had with a colleague after he was dismissed, in which he asked whether he had imagined that they had both been taken into a meeting and told to do better, and that he would have until the end of January 2023 sales to show the required improvement.[138]We finds that this did happen, and we also find that it is probable, from the exchange, that the colleague had over 2 years employment .[139]We also find, form the evince of Mr Charalambous, and the procedures he followed, that the company did focus on poor performance and did have strict measures in place to address poor performance with all D and E grade employees Case Number: 6000135/2022 30[140]The claimant suggests, but Mr Charalambous denies, that there was a policy of getting rid of all D and E grade employees before they reached 2 years’ service.[141]We cannot find on the evidence that this was a policy, but we observe that it is not unusual for a manager or business to be aware of the two year mark as one of importance with a poorly performing employee.[142]Here, the claimant was performing poorly and accepts this. He attributes that to his having taken paternity leave, and that may have been a factor, but we find that it was not the cause of his failure to improve by December 2022. We find that whilst he had improved slightly since return from Paternity leave, and that over the months since, he simply had not been able to do as well as others. We can find no obvious link between his paternity leave and his poor performance.[143]We note that he was one of several poorly performing employees, and find that he was subject to performance management because of this, as others were.[144]We have also taken notice of the exchanges between the claimant and his colleagues about their experience of Mr Charalambous. The claimant suggests, and the colleagues he communicated with seemed to agree, that Mr Charalambous was not well liked and that many experienced him as being a bit of a bully. There is no suggestion that it is just the claimant who is being picked on to improve his performance, rather that Mr Charalambous keeps a close eye on all employees and has a particular management style when it comes to seeking improvement.[145]On that basis we cannot find that the claimant was treated differently to others and in particular we simply do not know why other people were or were not taken through capability or performance processes and nor do we know whether they were people who had less than or more than two years service. If we had made any findings that he had been treated differently to how other another employee in similar situation was treated, that might be Case Number: 6000135/2022 31 evidence from which we could infer that there was reason other than performance for the treatment of the claimant by Mr Charalambous, but we do not.[146]What we do know and do find as fact is that the claimant was performing poorly, and that he had been warned about his poor performance by Mr Charalambous, and that he had been given targets to meet, which he had not met.[147]We also know that Mr Charalambous was under scrutiny as a manger from his managers, and that there was constant pressure on everyone to achieve the targets. Since the business of the company is to sell kitchens, it is unsurprising that manages were expected to ensure that all their sales staff were performing to the company sales standards.[148]We accept and find that this treatment of the claimant was perceived by the claimant as a detriment and we find that it was n balance capable being detrimental treatment. However, given its context, we conclude that although Mr Charalambous did ask for and take advice, and did decide to have a meeting with the Claimant, that he was not weaponizing HR in the sense suggested by the claimant .[149]On 15 December 2022 the claimant was called to an employee review meeting without notice and was not told what the purpose of the meeting was. The claimant was not given an opportunity to arrange to have a colleague with him and attended on his own.[150]We have been referred to the notes of that meeting and find that at the meeting the claimant was provided with information about his performance and that Mr Charalambous made it clear that he considered the claimant was significantly underperforming.[151]The Claimant was asked for his comments; was asked if he understood the requirements of the company; he was also told that he had not been able to demonstrate a performance that was competitive or suggested he was suitable for the kitchen designer role. Mr Charalambous said that they had Case Number: 6000135/2022 32 not seen the inspiration; dedication or enthusiasm expected. The claimant did not agree with this. Mr Charalambous also stated that he was concerned that the claimant had not been able to follow a reasonable management request of being at his workstation, ready to start work at the allocated start time. The Claimant again is recorded as saying it was the first time in two years and it was due to him having a bad leg and there being train delays.[152]Following a short adjournment, Mr Charalambous reconvened the meeting and told the claimant that he was deciding to terminate the claimant’s contract with immediate effect and that the claimant was not required to work his notice but he would be paid one day plus a week’s pay in lieu of notice and any accrued but untaken holidays.[153]The claimant asked to appeal against his dismissal, but no appeal process or hearing was provided for. Key legal principles[154]We reminded ourselves that we only have jurisdiction to consider and rule upon the act or acts of which complaint is made to it. If the applicant fails to prove that the act of which complaint is made occurred, that is the end of the case. We have no jurisdiction to consider and rule upon other acts of racial discrimination not included in the complaints in the originating application: see Chapman v Simon [1994] IRLR 124 ,128, para 33(2) (per Balcombe LJ) and 129, para 42 (per Peter Gibson LJ) Victimisation[155]In order to succeed under s. 27, a claimant needs to show two things; that he was subjected to a detriment and, secondly, that it was because of the protected act(s). We have applied the ‘shifting’ burden of proof s. 136 to that test as well.[156]In respect of the protected act, we have reminded ourselves that Section 27(2)(c), which is the relevant section in this case, covers all acts done ‘for the purposes of or in connection with’ the EqA . In Aziz v Trinity Street Taxis Ltd and ors 1988 ICR 534, CA, the Court of Appeal stated that an act could Case Number: 6000135/2022 33 properly be said to be done ‘by reference to’ the RRA ( Now the EqA) if it were done by reference to the legislation ‘in the broad sense, even though the doer does not focus his mind specifically on any provision of the Act’.[157]The test of causation under s. 27 was similar to that under s. 13 in that it required us to consider whether the Claimant has been victimised ‘because’ he had done a protected act, but we were not to have applied the ‘but for’ test (Chief Constable of Greater Manchester Constabulary-v-Bailey [2017] EWCA Civ 425); the act had to have been an effective cause of the detriment, but it does not have to be the principal cause. However, it has to have been the act itself that caused the treatment complained of, not issues surrounding it. Detriment and Automatic unfair dismissal for making protected disclosures The disclosures[158]First, we had to determine whether there had been disclosures of ‘information’ or facts, which was not necessarily the same thing as a simple or bare allegation (see the cases of Geduld-v-Cavendish-Munro [2010] ICR 325 in light of the caution urged by the Court of Appeal in Kilraine-v- Wandsworth BC [2018] EWCA Civ 1346). An allegation could contain ‘information’. These are not mutually exclusive terms, but words that were too general and devoid of factual content capable of tending to show one of the factors listed in section 43B (1) would not generally be found to have amounted to ‘information’ under the section. The question was whether the words used had sufficient factual content and specificity to have tended to one or more of the matters contained within s. 43B (1)(a)-(f). Words that would otherwise have fallen short, could have been boosted by context or surrounding communications. For example, the words “you have failed to comply with health and safety requirements” might ordinarily fall short on their own, but may constitute information if accompanied by a gesture of pointing at a specific hazard. The issue was a matter for objective analysis, subject to an evaluative judgment by the tribunal in light of all the circumstances. Case Number: 6000135/2022 34[159]Next, we had to consider whether the disclosure indicated which obligation was in the Claimant’s mind when the disclosure was made such that the Respondent was given a broad indication of what was in issue (Western Union-v-Anastasiou UKEAT/0135/13/LA).[160]We also had to consider whether the Claimant had a reasonable belief that the information that he had disclosed had tended to show that the matters within s. 43B (1)(b), (d) of (f) had been or were likely to have been covered at the time that any disclosure was made. To that extent, we had to assess the objective reasonableness of the Claimant’s belief at the time that he held it (Babula-v-Waltham Forest College [2007] IRLR 3412 and Korashi-v- Abertawe University Local Health Board [2012] IRLR 4). ‘Likely’, in the context of its use in the sub-section, implied a higher threshold than the existence of a mere possibility or risk. The test was not met simply because a risk could have materialised (as in Kraus-v-Penna [2004] IRLR 260 EAT). Further, the belief in that context had to have been a belief about the information, not a doubt or an uncertainty (see Kraus above).[161]We reminded ourselves that the term ‘breach of a legal obligation’ under s. 43B (1)(b) is a broad category and has been held to include tortious and/or statutory duties such as defamation (Ibrahim-v-HCA UKEAT/0105/18).[162]Next, we had to consider whether the disclosures had been ‘in the public interest.’ In other words, whether the Claimant had held a reasonable belief that the disclosures had been made for that purpose. As to the assessment of that belief, we had to consider the objective reasonableness of the Claimant’s belief at the time that he possessed it (see Babula and Korashi above). That test required us to consider his personal circumstances and ask the question; was it reasonable for him to have believed that the disclosures were made in the public interest when they were made.[163]The ‘public interest’ was not defined as a concept within the Act, but the case of Chesterton-v-Normohamed [2017] IRLR 837 was of assistance. In it, Supperstone J decided that the public interest may have been limited to a small group of 100 or so employees (in that case, about 100 senior Case Number: 6000135/2022 35 managers were potentially affected by the employer’s massaging of performance figures in relation to bonus). The Court of Appeal confirmed the decision and determined that it was the character of the information disclosed which was key, not the number of people apparently affected by the information disclosed. There was no absolute rule. Further, there was no need for the ‘public interest’ to have been the sole or predominant motive for the disclosure.[164]As to the need to tie the concept to the reasonable belief of the worker “The question for consideration under section 43B (1) of the 1996 Act is not whether the disclosure per se is in the public interest but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest” (per Supperstone J in the EAT, paragraph 28).[165]The position was to be compared with a disclosure which was made for purposes of self-interest only, as in Parsons-v-Airplus International Ltd UKEAT/0111/17).[166]Finally, we did not have to determine whether the disclosures had been made to the right class of recipient since the Respondents accepted that they had been made to the Claimant’s ‘employer’ within the meaning of section 43C (1)(a). Detriment (s. 47B)[167]The next question to determine was whether or not the Claimant suffered detriment as a result of the disclosure. The detriment relied upon was set out in the list of issues.[168]The test in s. 47B is whether the act was done “on the ground that” the disclosure had been made. In other words, that the disclosure had been the cause or influence of the treatment complained of (see paragraphs 15 and 16 of the decision in Harrow London Borough Council-v-Knight [2002] UKEAT 80/0790/01).[169]Section 48 (2) was also relevant; Case Number: 6000135/2022 36 “On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done.”[170]The test was not one amenable to the application of the approach in Wong-v- Igen Ltd, according to the Court of Appeal in NHS Manchester-v-Fecitt [2012] IRLR 64). It was important remember, however, if there was a failure on the part of the Respondent to show the ground on which the act was done, the Claimant did not automatically win. The failure then created an inference that the act occurred on the prohibited ground (see International Petroleum Ltd and ors v Osipov and ors EAT 0058/17 ). Dismissal (s. 103A)[171]We have considered and applied the test in Kuzel-v-Roche [2008] IRLR 530;a. whether the Claimant and had showed that there was a real issue as to whether the reason put forward by the Respondent was not the true reason for dismissal;b. if so, had the employer showed its reason for dismissal;c. if not, has it disproved the claimant's reason (ie that he was dismissed for a reason related to the disclosure).[172]Since the Claimant lacked the requisite service to bring an ordinary unfair dismissal claim, the burden is on him to prove the reason for dismissal under s.103A on the balance of probabilities; it is a greater burden than the requirements to merely prove a prima facie case if he had a two-year service under Kuzel-v-Roche [2008] IRLR 530; Ross-v-Eddie Stobart [2013] UKEAT/0068/13/RN.
Discussion and conclusions.
[173]On the basis of our findings of fact, we conclude that the claimant made public interest disclosures in a pre-paternity leave meeting with Mr Charalambous; on the 11 October 2022 and on 10 December 2022 in respect of the NMW and in his letter of 13 December 2022. Case Number: 6000135/2022 37[174]One of the allegations the claimant makes is that he was dismissed for taking paternity leave.[175]On the basis of our findings of fact as set out above, we dismiss this allegation for the following reasons.[176]The claimant returned to work after paternity leave with a low rating on performance. Mr Charalambous did not meet with the claimant to discuss his performance until October 2022 following the claimant’s return in the July 2022. Although we accept that there is some force in the claimant’s argument that taking paternity leave has a negative impact on the performance metrics, and that he did raise this as a concern with his manager, we find that the reason why the claimant was called into a meeting in October 2022 was purely because he had poor performance metrics and was not meeting his targets.[177]There is no evidence before us whatsoever that Mr Charalambous called that meeting for any reason other than his concerns about performance.[178]No formal action was taken at that stage, and it was not until two months later that the claimant was picked up again on his performance and dismissed.[179]From all the evidence we have heard, and out findings of fact, we conclude that the decision to call the claimant to the meeting in December 2022 was based on the claimant's poor performance coupled with an irritation Mr Charalambous had with the claimant’s time keeping and attitude. We have made no findings of fact from which we could conclude that any of those causes were anything to do with the claimant having taken paternity leave. We conclude that the decision to dismiss the claimant was nothing to do with him having taken paternity leave, and conclude that there is no breach of the Maternity and Parental Leave Regulations 1999.[180]The claimant has also alleged that he was victimised for having done a protected act. The claimant relies upon the fact that he raised the KPI's used for grading staff as having been in breach of the Equality Act 2010 . Case Number: 6000135/2022 38[181]We accept that the claimant did raise the fact of KPIs being used as being a possible breach of the Equality Act 2010, and that this was a protected act, and we find that this was raised with Mr Charalambous before the claimant went on paternity leave and again in the course of the 11 October meeting. The claimant does not suggest that this matter was raised again subsequently. If Mr Charalambous had wanted to dismiss the claimant because of this and to disguise it as something else, he could have done so in October 2022 when he arguably had grounds for dismissal because of his poor performance.[182]From the facts we have found we conclude that Mr Charalambous was not considering dismissal of the claimant in October 2022 for any reason, and that the issues raised by the claimant about the impact of paternity leave on employees had no impact on Mr Charalambous at all. He expressed his views about the claimant’s thoughts, but was not troubled by them at all.[183]It was not until December 2022, when the claimant had not improved and when the claimant was late for work and argued with his manager about it, that Mr Charalambous considered the matter with human resources as one that might lead to a dismissal. The dismissal was nothing to do with the clamant having done a protected act.[184]In respect of the allegation that Mr Charalambous hovered around the claimant or unnecessarily asked other members of staff where the claimant was, we conclude that Mr Charalambous observed the claimant at his desk and asked others where he was, and we accept this can be a detriment.[185]We have made no findings of fact from which we could conclude that this was anything to do with the claimant having done a protected act by having raised the NMW or paternity leave, and we conclude it was most likely because he was concerned about the claimant’s performance and was becoming concerned about the claimant’s attitude to works and his arrival times. We conclude that none of this was anything to do with the claimant having done a protected act. Case Number: 6000135/2022 39[186]We do not find that by contacting of human resources Mr Charalambous was weaponizing human resources to force the claimant to leave, but we do conclude that he contacted HR because he wanted to know what his options were, and this was because of his issues with the claimant.[187]The claimant has not proved facts from which we could conclude that the reason for his treatment was any protected act, nor has he proved facts from which we can find that the reason put forward by the respondent was not the real reason for dismissal. We find the reason for the claimants dismissal was the concerns Mr Charalambous had about his performance and attitude to work.[188]We have made no findings of fact from which we could conclude that Mr Charalambous decided to dismiss the claimant because he had done a protected act, or that the protected acts had any material influence on his decisions at all. From our findings, we conclude that the decision to dismiss was nothing to do with the claimant having raised issues about paternity leave. We conclude in any event , that the respondent had a full and valid reason for its decision to dismiss that claimant.[189]We therefore conclude that the claimant’s allegations of victimisation contrary to section 27 Equality Act 2010 in respect of the unfavourable treatment are dismissed.[190]Turning then to the claimant’s allegations that he was subject to detriment and dismissed for having made a protected disclosure.[191]The detriment that he relies upon, which we have found proven, are that after 10 December conversation , Mr Charalambous said words to the effect that he would contact HR and see what could be done; that he hovered around the claimant and unnecessarily asked other members of staff where the claimant was.[192]The claimant asserts that these things happened because he made public interest disclosures. Case Number: 6000135/2022 40[193]We bear in mind that one of the disclosures relied upon by the claimant is the claimant's letter of the 13 December 2022 when he wrote to HR to complain about Mr Charalambous.[194]We find that the content of the letter identifies information which the claimant reasonably believed indicated a breach of legal obligations and which the claimant reasonably believed was in the public interest, in that it was applicable to a range of employees other than himself.[195]We therefore conclude that he did make a public interest disclosure on the 13 December 2022.[196]This was one of three disclosures which we have found on balance of probabilities the claimant did make asset out above.[197]We find that he that he made disclosures in the meeting of the 11 October 2022; in a conversation on the 10 December 2022 and in his letter of the 13 December 2022.[198]We all agree that by December 2022 Mr Charalambous was out of patience with the claimant. We have made findings of fact that there were valid reasons for him having concerns about the claimant’s performance and failure to improve, as well as having concerns about the claimant's attitude arising from discussions following him raising the claimant’s lateness for work. The respondent asserts that these were the reasons for any of Mr Charalambous’s behaviour towards the claimant at this time.[199]The disclosure on the 13 December postdates the allegations of detriment and therefore is irrelevant.[200]The earlier disclosures were not, on our findings, causative of Mr Charalambous becoming concerned about the claimant’s performance in October 2022. He was concerned because there was reason to be concerned on the metrics available.[201]We conclude that whatever Mr Charalambous understood the claimant to be saying in November 2022, it was not the fact that he suggested a breach of Case Number: 6000135/2022 41 the National Minimum Wage Regulations that irritated him, but the fact that the claimant was arguing with him about the need to be in work on time. Mr Charalambous was expecting improvements from a claimant who was not performing well, and we conclude on balance ,that his greater focus on the claimant at this point in time was the result of those concerns rather than being anything to do with the claimants assertions about the national minimum wage regulations.[202]From our findings, it is clear to us that the focus of all Mr Charalambous’ discussions and the motivation for him having a formal discussion with the claimant in October and December 2022, was the claimant's poor performance.[203]We have considered whether the issues he had with the claimant’s attitude were, in reality the fact that the claimant had raised the NMW regulations, or other matters, but we make no finding of fact, other than the chronology of events, and the coincidental timing of the public interest disclosure on 10 December 2022, to support a conclusion that this was in reality a significant motivating factor. We accept that the claimant arguing about the time he needed to be at work was an irritant for Mr Charalambous, but other than that, the claimant has not proved any facts from which we could conclude that the reason why he was subject to the detriment was anything to do with his comments about the NMW, rather than the fact that he was arguing with his employer about time keeping, and still performing badly.[204]We have also taken into account the chronology of events and the fact of the claimant’s own admissions and acceptance that his performance was not only poor but that it had not improved in nearly 4 1/2 months between his return from paternity leave and his dismissal.[205]We conclude that whilst the claimant was subject to detriment, he was not subject to detriment on the grounds that he had made protected disclosures. We therefore dismiss this part of his claim. Case Number: 6000135/2022 42[206]In respect of the claimant’s allegation that he was dismissed because he had made public interest disclosures, we remind ourselves that the Claimant has the burden of showing that there was a real reason as to whether or not the reason put forward by the respondent was not the true one.[207]We have again considered the compliant made on December 13, 2022 by the claimant. We found that Mr Charalambous had not been told about the letter and had not seen it. The letter was sent to human resources and the claimant received a response from somebody called Rachel Swannack who gave evidence to us that she did not make Mr Charalambous aware of the existence of the grievance between the 13th and 15 December . She had written back to the claimant asking him if he wanted the information to be shared with his manager but had not received a response at that point from the claimant.[208]We conclude that as Mr Charalambous had not been aware of the complaint, it cannot therefore have been a factor in his thinking when he decided to dismiss the claimant.[209]In any event we find that he sought and obtained advice from human resources before the claimant had written the complaint, and that the possibility of dismissal had already been discussed.[210]Further, in respect of any PID regarding paternity leave and breach of legal obligations, we conclude that the fact that the claimant had raised the KPIs in the summer of 2022, formed no part of Mr Charalambous’ thinking in December 2022. Again his concerns in December 2022 were the claimant’s continued failure to improve; his attitude at work and the fact that he was not arriving at work in good time to start.[211]We have considered the process followed and note that there were a number of aspects of the process which we find very troubling, such as the lack of notice given to the claimant of the meeting, the fact that he did not have a companion and the fact that the meeting itself appeared to be a very short meeting. However, from the evidence we have heard it appears that Mr Case Number: 6000135/2022 43 Charalambous at least and human resources considered that this was an entirely appropriate way for him to deal with the matter.[212]We have found facts that the respondent’s reason for treatment of the claimant and the decision to dismiss, were legitimate and well founded, and other than the timing of the claimant’s disclosure of 10 December, we conclude that the claimant has not shown that there was a real issue as to whether the reason put forward by the respondent was the real reasons for dismissal.[213]In any event , if we are wrong about that , we conclude the respondent has shown a reason for the dismissal which we accept as true, and we conclude that the respondent’s real reasons for the treatment of the claimant were his poor performance, and Mr Charalambous’ concerns about time keeping and attitude.[214]We conclude that the disclosures made by the claimant had no effect whatsoever on the way Mr Charalambous behaved towards the claimant. We find no facts from which we could conclude that the reason for treatment given by the respondent is not the real reason. We conclude that the respondent has shown a reason for the dismissal which disproves the claimant’s assertion that he was dismissed for a reason related to the disclosure. We conclude that it was not.[215]We conclude that the reason or principle reason why the claimant was dismissed by Mr Charalambous was because Mr Charalambous had a genuine well founded belief that the claimant was underperforming was not and had not improved over a period of some months; that his attitude had changed and that he was showing a lack of motivation and a poor attitude demonstrated by his unwillingness to attend at work to be ready to start on time.[216]We therefore dismiss his claims of detriment and of Automatic unfair dismissal. Case Number: 6000135/2022 44 ____________________ Employment Judge Rayner Dated: 26 February 2025 Sent to the parties on: 4 March 2025 Jade lobb For the Tribunal: Note: Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a written request is received from either party within 14 days of the sending of this record of the decision. Case No: 6000135/2022 10.2 Judgment - rule 61 February 2018 EMPLOYMENT TRIBUNALS Claimant: Mr Daryll Thomas Respondent: Wren Kitchens Ltd Heard at: Southampton On: 27, 28,29 November 2024 Before: Employment Judge Rayner Ms K Symonds Mr J Ruddick Representation Claimant: Mrs Thomas, Lay Representative and claimant’s Wife Respondent: Mr A Willoughby, Counsel Decision of Reconsideration Application The Claimants application for reconsideration of the Judgment dated 26 February 2025, is refused. Reasons for refusal of application for reconsideration
Discussion and conclusions.
[1]The application for reconsideration is made under rules 68-71 of the Employment Tribunal Procedure Rules 2024, and was made within the time limit. The Applicable Legal Principles[2]The process set out under rule 71 is for me, as the judge who chaired the full tribunal, to consider the application and determine, first of all, whether I consider that there is no reasonable prospect of the original decision being varied or revoked. If I am of that view, the application must be refused, otherwise the views of the other parties to the case must be sought.[3]Under rule 71, except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties. Case No: 6000135/2022 10.2 Judgment - rule 61 February 2018[4]For the reasons I will set out below I do not consider that there is any reasonable prospect of the original decision in this case being varied or revoked and, therefore, I refuse the application for reconsideration.[5]In approaching the application for reconsideration I have considered the cases of Flint v Eastern Electricity Board [1975] ICR 395 and Outasight VB v Brown [2015] ICR D11. The principles set out in those judgments are helpfully summarised in the more recent case of Ministry of Justice v Burton [2016] ICR 1128, where at paragraph 21 the Court of Appeal stated “An employment tribunal has a power to review a decision “where it is necessary in the interests of justice”: see rule 70 of the Employment Tribunals Rules of Procedure 2013. This was one of the grounds on which a review could be permitted in the earlier incarnation of the rules. However, as Underhill J pointed out in Newcastle upon Tyne City Council v Marsden [2010] ICR 743, para 17, the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray & Vials [1994] ICR 384 Mummery J held that the failure of a party’s representative to draw attention to a particular argument will not generally justify granting a review. In my judgment, these principles are particularly relevant here”[6]This means that a judgment will only be reconsidered where it is ‘necessary in the interests of justice to do so’.[7]A tribunal dealing with the question of reconsideration must seek to give effect to the overriding objective to deal with cases ‘fairly and justly’ This includes: ensuring that the parties are on an equal footing dealing with cases in ways which are proportionate to the complexity and importance of the issues avoiding unnecessary formality and seeking flexibility in the proceedings avoiding delay, so far as compatible with proper consideration of the issues; and saving expense.[8]In Outasight VB Ltd v Brown 2015 ICR D11, EAT, Her Honour Judge Eady QC accepted that the wording ‘necessary in the interests of justice’ in what was then rule 70 of the Tribunal Rules 2013 (now rule 68) allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, ‘which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation Case No: 6000135/2022 10.2 Judgment - rule 61 February 2018 and to the public interest requirement that there should, so far as possible, be finality of litigation’. Reasons for rejection of Application[9]In this case I consider that there is no reasonable prospects of the original decision being varied or revoked for the reasons I set out below.[10]The parties are reminded that the employment tribunal can only determine the issues which are properly before them. This means that in most cases, the issues which the tribunal will determine are those which have been set out and agreed in the case management order. If the parties do not agree the case management order when it is sent to them, they are given a time frame within which they can object to the issues as recorded.[11]In this case, the issues were discussed with the parties at the start of the hearing and reference was made to the case management order which had recorded issues for determination.[12]Further, the claimant is reminded that he specifically withdrew claims of sex and race discrimination at the case management hearing. The tribunal therefore had no jurisdiction to consider any such matters at the final
hearing.
[13]Therefore, there is no reasonable prospect. Of me reconsidering my judgment in respect of any allegation or suggestion of discrimination.[14]The claimant is critical of the process of the litigation and states that he and his representative were disadvantaged by the late-stage transition to video conference formatting. The claimant also suggests that the adversarial nature of the proceedings was a disadvantage to him.[15]It is recognised that litigants in person may find the tribunal procedure stressful and difficult, however, In this case, I am satisfied that the hearing was conducted fairly and, in particular, that I gave the Claimant, assisted by his wife and appearing effectively as a litigant in person with a lay representative, appropriate and sufficient support and assistance both in explaining the process of litigation, clarifying the issues and assisting in formulating and directing questioning throughout the course of the hearing. The fact that the Claimant found the process unfamiliar and challenging is regrettable but is not a basis for reconsideration of the judgment. I am satisfied that the hearing was conducted fairly and in accordance with the overriding objective.[16]The claimant suggests that an inability to confer with the clerk prior to the hearing caused them difficulties. I am satisfied that the procedure for the hearing by video, the need for breaks and the restrictions on recording, for example, were adequately explained to all parties at the start of the Case No: 6000135/2022 10.2 Judgment - rule 61 February 2018 hearing. I am satisfied that the hearing was conducted fairly and reject this as a basis for reconsideration.[17]The claimant has set out 46 paragraphs describing what he calls a pattern of retaliation following protected disclosures.[18]The matters identified at paragraphs 3-4 four were not part of the claimant’s pleaded case. This was not before the tribunal for[19]At paragraph 5, the claimant makes reference to the Equality Act 2010 and asks for consideration of whether or not there was indirect discrimination under Section 19 of the Equality Act 2010. This was not a matter before the Employment Tribunal. The claimant had specifically withdrawn any claims of sex discrimination.[20]Similarly, at paragraph 9-13, the claimant asks the Tribunal to consider the employer's conduct, and the application of their policies to those taking paternity leave, and whether or not there was discrimination linked to dismissal. These were not allegations before the Employment Tribunal and therefore have not been determined. f[21]Throughout his application, the claimant refers to findings of fact made by the Employment tribunal which he considers should be revisited or reconsidered. An example is the matters set out at paragraphs 15/16/17. The claimant does not suggest that any findings made were perverse, nor does he suggest that evidence was ignored and nor does he suggest that there is new evidence which has come to light since the hearing.[22]In those circumstances, since the factual matters have been determined following a full hearing at which parties gave evidence; were cross examined and documents were referred to, there is no basis for reconsideration. To do so would be to effectively give the claimant a second chance to argue his case on the same evidence, and that is not in the interests of justice.[23]At paragraph 19, the claimant suggests that the respondent has failed to comply with the legal provisions, but again, this is not a criticism or allegation made by the claimant which required a termination of these proceedings. The claimant's evidence and submissions were taken into account when making findings of fact and drawing conclusions. There is not a basis for reconsideration.[24]A paragraph 24, the Claimant seeks to clarify when the words put up or shut up were said. However, the judge made a factual determination based on the evidence and submissions of both parties. This is an argument that the judge should have made a different finding of fact. A Case No: 6000135/2022 10.2 Judgment - rule 61 February 2018 disagreement with factual conclusions is not grounds for the reconsideration of a judgment.[25]Paragraph 31 and subsequent paragraphs are essentially a criticism of the conclusions drawn by the claimant from the evidence before it. There is no basis for reconsideration set out within those paragraphs.[26]A number of the claimant's submissions seek to re argue the case, having received the judgment.[27]I remind myself and remind the parties that the purpose of reconsideration is to vary or correct a judgment only where it is in interests of justice to do so. It is not an opportunity for a party who is dissatisfied with the judgment to re argue their case.[28]This not a criticism of the claimant who is a litigant in person, but much of the claimant’s reconsideration application amounts to further submissions and argument as to why the facts should have been decided differently, and different conclusions drawn from them.[29]Since these arguments could and should have been made during the hearing or at the point of making final submissions, these are not valid grounds for reconsideration of the judgment.[30]The claimant is reminded that reconsideration is different to an appeal.[31]I have carefully read the detailed arguments set out by the claimant in his application for a reconsideration. His arguments raised no new points of evidence, but rather a further attempt to argue his case or a request that matters not properly before the Tribunal, be considered in addition to those which were determined.[32]Whilst not unsympathetic to the difficulties a litigant in person can face in the litigation process, I remind myself of the need for finality in litigation, and that I only have power to determine the matters which are properly before me.[33]Taking all of these matters into account. I conclude that there is no reasonable prospect of me varying or reconsidering. My decision because it is not in the interest of justice to do so. I therefore dismiss the claimant’s application for reconsideration. Case No: 6000135/2022 10.2 Judgment - rule 61 February 2018 Approved by