Mr F Olatoye v Barclays Execution Services Ltd: 6002047/2025
EMPLOYMENT TRIBUNALS
Case No 6002047/2025
Between
Mr F OlatoyeClaimantBarclays Execution Services LtdRespondent
Before
Employment Judge Andrew Clarke KCIn person for claimantMs Sophie Belgrove (instructed by counsel) for respondentDate 30 April 2025
JUDGMENT
[1]The claimant’s application for interim relief fails and is dismissed.
REASONS
[1]The claimant was employed by the respondent, a company in the Barclays Bank Group, from 1 June 2023 until 17 January 2025. As the claimant accepts and as is consistent with his contract of employment, the correct name of the respondent is Barclays Execution Services Ltd and the title of the proceedings is so amended. The claimant was employed as a Data Analyst. His dismissal was with wages in lieu of notice.[2]The claimant began his claim by a claim form presented on 20 January 2025 after an appropriate period of early conciliation. He alleged race and disability discrimination of various kinds as well as wrongful dismissal and breach of contract. In later communications to the employment tribunal he made clear that the latter claims were intended as vehicles to claim monies he says that he should have been paid. He also sought, and was given permission to add, a claim for automatic unfair dismissal on the basis that he was dismissed consequent upon making a protected disclosure. He also sought interim relief based on that last claims. It is that application which I have to deal with today.[3]In order to deal with that application I have read the claim form and the response; the claimant’s application to amend as the claim for interim relief; a bundle of relevant documents produced by the respondent of some 526 pages, the early section of which contains the pleadings already referred to; a witness statement from the claimant of some eight pages; three witness statements from the respondent totalling some 29 pages and making extensive cross reference to the documents in the bundle; and skeleton argument from the claimant and from the respondent’s counsel, Ms Sophie Belgrove.[4]Among the respondent’s witnesses is Ms Sue Richards. She is a Chief of Staff within another part of the Barclays Business who was tasked with considering one of the claimant’s grievances and also determining whether his employment should be continued beyond his period of probation. She decided that his employment should not be continued and, consequently, he was dismissed.[5]The documents support the view that Ms Richards took the decision to dismiss, and the claimant has not sought to persuade me that the contrary is arguable or part of his case albeit that I note that he contends that his dismissal was in effect predetermined from about the time of his making his protected disclosure. Hence, it is Ms Richards reasoning that must be considered to see if her reason, or principal reason, for dismissal may have been the making of a protected disclosure by the claimant. This may arguably include a situation where even though she was unaware of the disclosure those who were so aware invented or recast in a negative way the material placed before her which led her to make her decision and that they so acted because of the making of the protected disclosure.[6]I have not heard any witness cross examined and, therefore, my examination of the materials before me can be no more than provisional. I could not make, and have not sought to make, any findings of fact.[7]My task is to ask myself whether it is “likely” that a tribunal hearing the matter would find that the reason, or principal reason, for the claimant’s dismissal was the making of a protected disclosure. The threshold is said by various cases in the higher courts to be significantly higher than the 51/49 threshold of the balance of probabilities test. In Taplin v C Shipman Ltd [1978] ICR 10 68, the EAT presided over then by Mr Justice Slynn, expressed this as requiring one to be satisfied that the claimant has “A pretty good chance of success”.[8]The claimant’s position before oral submissions is set out in his witness statement which also contains some submission and in his skeleton argument. In summary:8.1 He says that he worked diligently, successfully and without criticism until the making of his protected disclosure.8.2 Things changed he says when he raised a grievance and then blew the whistle regarding the conduct of three of his senior managers.8.3 What he complained of was that the senior staff were delegating tasks to junior colleagues and then blaming them if anything went wrong.8.4 He says that he believed that these delegations to junior staff led in some way to the respondent being in breach of legal obligations under the Financial Regulatory framework under which it operates.8.5 The senior managers are said to have changed their mode of working in response to his complaints but also thereafter treated him differently in ways amounting to unlawful discrimination and which ultimately led to his allegedly unfair dismissal.8.6 He contends that his dismissal must have been because of his protected disclosure because of the quality of his work and the lack of prior complaint.[9]I have grave doubts as to whether the claimant ever made a protected disclosure. Indeed, it is far from clear what document is said to contain that disclosure. As the respondent notes, the claim form appears to point in what it says to the claimant having made his disclosure, if there was one, in an email in February 2024. The contents of that email certainly appear to fit the description in the claim form, as amended, by the addition of the claim for automatic unfair dismissal. Yet the claimant’s witness statement refers to the disclosure having been made in a document written in November 2023 and submitted to the respondent shortly after his first grievance.[10]He respondent has failed to locate any such earlier document. Furthermore, the language of the February 2024 document is inconsistent with here having been an earlier and similar complaint. It makes no reference to it which in context is surprising if such an earlier document existed. Moreover, is specifically states that the claimant had intended to make the protected disclosure somewhat earlier but had ben sidetracked. The claimant accepts that this February document substantially repeated the alleged earlier document sent in November of the previous year. When it was pointed out that the February document contained no mention of regulatory matters the claimant said that the November document had done so but he could not explain why the later document did not make such a reference.[11]Ms Belgrove helpfully summarised the law on the various aspects of what constitutes a protected disclosure. I need not set out that law in any detail. My principal concerns in that regard are as follows:11.1 The claimant relies upon s.43(B)(1)(b) of the Employment Rights Act 1996. The failure to comply with a legal obligation to which the respondent is subject. The claimant’s contentions in this regard are, in my view, vague and I am not presently satisfied that he can even now point to a relevant legal obligation, and I am equally uncertain that it can be said that any document upon which he might rely spells out information to suggest the breach of any such obligation. Certainly, as I have explained above, the documents before me do not do so. Indeed, they contain no reference within the contemporaneous materials as to any breach of any legal obligation related to the Financial Regulations to which the respondent and its parent companies are subject.11.2 Even if other aspects of the test for a protected disclosure could be satisfied, I consider that the case for saying that the claimant was acting in the public interest is to say the least tenuous. The documents I have seen suggest that he was complaining of the impact of his manager’s conduct on him and his junior colleagues. There is no hint of any public interest being involved.[12]Those concerns would, taken alone, preclude me from finding that this is a claim likely to succeed at the final hearing. However, I have similarly grave concerns about the causative link between any such disclosure as the claimant may be able to establish and his dismissal.[13]The contemporaneous documents to which I have read point to a very different picture to that painted by the claimant. They appear to me to show that after a settling in period the respondent had begun to raise concerns about aspects of the claimant’s performance. It was recognised that he possessed the relevant technical skills for the job and could produce work of a required standard. However, there were serious concerns as to his interpersonal skills; his reliability; his recording and evidencing of his work and his timekeeping.[14]In his initial oral submissions, the claimant was adamant as follows:14.1 No complaints or criticisms had been raised with him prior to his protected disclosure made just after his first grievance at the end of November 2023.14.2 He had not had put to him the schedule of some 20 matters relied upon by Ms Richards when dismissing him.14.3 He had not been given any opportunity to address those 20 matters and, in particular, she had not offered him any opportunity to respond to them.[15]Following Ms Belgrove’s submission, and my being taken to various documents referred to in the witness statement of the person taking the decision to dismiss, the claimant’s position on all three of the above matters changed significantly.15.1 He accepted that the respondent had raised criticisms of him from September 2023 onwards, that is some two months before the protected disclosure upon which he relies.15.2 This exercise of raising criticisms included putting to him an initial draft of the 20 matters referred to above. That draft was sent to him in a written schedule and a subsequent draft was also sent in respect of both of those drafts. The claimant responded in great detail in writing.15.3 Ms Richards asked to meet him to discuss amongst other things the 20 matters in the schedule. The claimant declined to meet her saying that he had already provided his full response to those allegations in writing and that she should rely on those which is what she did. 12. The documentation I have seen provides contemporaneous support for the assertion that the claimant was periodically rude and confrontational towards colleagues and managers both orally and in writing. Examples appear in the bundle. He resented being managed according to those documents. In particular they suggest that he would not keep his managers informed as to his whereabouts in worktime and felt above to absent himself from and even during meetings if he thought that his personal affairs required this. 13. The final review of his probationary period was constantly pushed back because of the grievances and other written complaints which he raised and made. When eventually the matter was determined it was by a manager from a different part of the business who had available a large volume of material. This included the 20 clear and specific complaints about the claimant’s conduct accompanied by supporting contemporaneous documentation. The claimant was given the opportunity to address this both in writing and in a meeting. As noted he declined to meet Ms Richards to discuss the 20 matters referring her to the written responses that he had already given. 14. Ms Richards says that she was unaware of the making of what is suggested to be a protected disclosure. And that, in any event, she made her decision the reason for which she gave in detail in writing, based upon the material before her relating to the claimant’s work record. 15. The outcome of the claimant’s first grievance recorded a complaint about three senior employees getting junior employees including the claimant, in effect, to do their work for them. It was treated as an additional matter to the principal complaints and takes up little of the written outcome. Ms Richards, and those who composed the schedule of 20 issues and matters in its various interactions, had seen the grievance outcome and were aware of that complaint. It is right to note that in witness statements each of them says that it played no part in their decision making as to advancing the complaints and the conclusion based upon them. That is a matter for another day, butt he materials before me certainly do not point in the contrary direction. Furthermore, as I have already noted, the complaint is simply one of senior managers excessively delegating to juniors. There is nothing there to suggest any regulatory problems arising from this. The material before me makes no reference to regulatory matters or concerns either directly or indirectly in my view. The claimant’s suggestion that the reason, or principal reason, for his dismissal was not the material relied upon by Ms Richards but the making of a protected disclosure has to be considered by me against the background of the large volume of documents, being contemporaneous documents in the main, recording the concerns being raised about the claimant’s performance and these being discussed both with the claimant and with the respondent’s HR functions.[16]Having read the detailed contemporaneous materials with some care, and Ms Richards’ commentary on her reasoning process, I cannot find that the claimant is likely to succeed in his claim for automatic unfair dismissal. In particular, he suggested that he was a successful employee against whom no significant complaints or criticisms had been made until his protected disclosure. That is at odds with what appears to be an extensive chronicle of contemporaneous documents and is, in any event, inconsistent with the case that he now advances by way of oral submissions which accepts that significant criticisms had been made of him well before any protected disclosure had been made.[17]In those circumstances, and for those reasons, I am unable to conclude that the claimant is likely to succeed in his claim when it is heard by a full tribunal. Therefore, his application for interim relief must fail and is dismissed. Approved by: