Mr S Hadley-Clarke v The Chief Constable of West Yorkshire Police: 6002287/2024

EMPLOYMENT TRIBUNALS

Case No 6002287/2024

Between

Mr S Hadley-ClarkeClaimant

The Chief Constable of West Yorkshire PoliceRespondent

Before

Employment Judge Deeley

Mr D Penman (instructed by Counsel) for respondent

Date 3 June 2025

JUDGMENT

[1]The claimant’s complaints of protected disclosure detriment under section 48 of the Employment Rights Act 1996 fail and are dismissed.

[2]The claimant’s complaints of detriment under section 146 of the Trade Union and Labour Relations Consolidation Act 1992 fail and are dismissed.

[3]The claimant’s complaint of ordinary unfair dismissal under section 98 of the Employment Rights Act 1996 fails and is dismissed.

REASONS

[4]We considered the following evidence during the hearing:4.1 one joint file of documents;

4.2 witness statements and oral evidence from:4.2.1 the claimant and his witnesses, Mr James Booth and Mr Mitchell Spicer; and

4.2.2 the respondent’s witnesses: Mrs White, Mrs Baker and Mr Khan.

[5]We considered the helpful oral submissions made by both representatives and the respondent’s written submissions. Additional disclosure

[6]The claimant applied to include documents contained in two supplementary files to the hearing file. Selected documents from the first supplementary file and the second supplementary file were included (the remaining documents either duplicated those in the hearing file or were not relevant to the issues).

[7]The Tribunal also requested additional disclosure of certain documents during the hearing. The documents were included in the hearing file without objections from either party. Adjustments

[8]I reminded both parties and their witnesses that they could request additional breaks during the hearing at any time if required and frequent breaks were taken throughout the hearing. CLAIMS AND ISSUES

[9]The factual complaints to be considered during this hearing were set out in the Annex to the case management summary from the Preliminary Hearing held by Employment Judge Elliot on 22 November 2024 and updated by Judge Elliot at the Preliminary Hearing on 24 January 2025 with the parties’ agreement. List of issues

[10]The list of issues is set out below (save for remedy issues which were not considered during this hearing): 1. Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 2 December 2023 may not have been brought in time.

1.2 Were the detriment complaints made within the time limit in section 147 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) / section 48 of the Employment Rights Act 1996? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act complained of?

1.2.2 If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?

1.2.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?

1.2.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? 2. Unfair dismissal

2.1 Was the claimant dismissed? – The parties agree the claimant was dismissed with immediate effect on 18 January 2024.

2.2 What was the reason or principal reason for dismissal? – The respondent says it was capability, in that the claimant did not possess the qualifications required to carry out his role. Was the reason or principal reason for dismissal that the claimant made a protected disclosure, or on grounds related to union membership or activities? If so, the claimant will be regarded as unfairly dismissed.

2.3 Was it a potentially fair reason?

2.4 If the reason was capability, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:2.4.1 The respondent adequately warned the claimant and gave the claimant a chance to improve;

2.4.2 Dismissal was within the range of reasonable responses. [3. Unfair dismissal remedy] 4. Protected disclosure

4.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:4.1.1 What did the claimant say or write? When? To whom? The claimant says their made disclosures on these occasions:4.1.1.1 in September 2021, submitting a Regulation 6 appeal to the Civil Aviation Authority saying that the flying test performed by Clive Clark was not performed correctly; (PD1)

4.1.1.2 on 2 November 2021 and 1 February 2022, at JNCC meetings (the Joint Negotiation and Consultative Committee of employer and union representatives), to Vicky White, raising concerns about NPAS (National Police Air Service) plans to offer the National Head of Training job to Phil Barlow, such concerns being on the basis of his experience being with planes not helicopters; (PD2)

4.1.1.3 raising concerns about the examiners Jamie Thomsett in July 2021 and Clive Clark in September 2021, to the claimant's line managers Rick London and Paul Watts that they were not following the correct practices in relation to the tests; (PD3)

4.1.2 Did they disclose information?

4.1.3 Did they believe the disclosure of information was made in the public interest?

4.1.4 Was that belief reasonable?

4.1.5 Did they believe it tended to show that:4.1.5.1 In relation to PD1 and PD3, a person had failed, was failing or was likely to fail to comply with any legal obligation;

4.1.5.2 in relation to PD2, the health or safety of any individual had been, was being or was likely to be endangered;

4.1.6 Was that belief reasonable?

4.2 If the claimant made a qualifying disclosure, was it a protected disclosure being appropriately made to:4.2.1 in relation to PD2 and 3, the claimant’s employer?

4.2.2 in relation to PD1, a prescribed person? [The respondent accepted during the final hearing that the Civil Aviation Authority is a prescribed person for the purposes of the whistleblowing legislation.] 5. Detriment (Employment Rights Act 1996 section 48)

5.1 Did the respondent do the following things:5.1.1 Clive Clark and Jamie Thomsett refused to fly with the claimant to test him, as first notified by emails of 18 November 2021 and 23 November 2021 and thereafter on a continuing basis up until the termination date 18 January 2024;

5.1.2 from September 2022 when the claimant's certification expired until the termination date 18 January 2024, Phil Barlow fail to arrange or permit a way of testing the claimant;

5.1.3 Phil Barlow by email of 17 January 2022, badmouth the claimant to Babcock (an alternative training provider and helicopter company);

5.1.4 in September 2022, place the claimant on a capability process (from which he was removed in 19 October 2022);

5.1.5 in January 2023, place the claimant on a capability process which continued to his dismissal on 18 January 2024;

5.1.6 in emails of 25 and 26 August 2022, and another date prior to 7 October 2022 unknown to the claimant [date to be confirmed], Phil Barlow fabricating costings submitted to NPAS in respect of how much it would cost to train the claimant.

5.2 By doing so, did it subject the claimant to detriment?

5.3 If so, was it done on the ground that they made a protected disclosure? [6. Protected Disclosure Detriment – remedy] 7. Detriment (TULRCA section 146)

7.1 Did the respondent do the following things:7.1.1 Clive Clark and Jamie Thomsett refused to fly with the claimant to test him, as first notified by emails of 18 November 2021 and 23 November 2021 and thereafter on a continuing basis up until the termination date 18 January 2024;

7.1.2 from September 2022 when the claimant's certification expired until the termination date 18 January 2024, Phil Barlow fail to arrange or permit a way of testing the claimant;

7.1.3 Phil Barlow by email of 17 January 2022, badmouth the claimant to Babcock (an alternative training provider and helicopter company);

7.1.4 in September 2022, place the claimant on a capability process (from which he was removed in 19 October 2022);

7.1.5 in January 2023, place the claimant on a capability process which continued to his dismissal on 18 January 2024;

7.1.6 in emails of 25 and 26 August 2022, and another date prior to 7 October 2022 unknown to the claimant [date to be confirmed], Phil Barlow fabricating costings submitted to NPAS in respect of how much it would cost to train the claimant.

7.2 By doing so, did it subject the claimant to detriment?

7.3 If so, was it done for the sole or main purpose of preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so (section 146(1)(b) TULRCA) – the claimant says the detriments flowed from his raising concerns at the JNCC meetings per PD2, which he did in his capacity as a trade union representative. [8. Trade Union Detriment – remedy] FINDINGS OF FACT Context

[11]This case is heavily dependent on evidence based on people’s recollection of events that happened some time ago. In assessing the evidence relating to this claim, we have borne in mind the guidance given in the case of Gestmin SGPS - v- Credit Suisse (UK) Ltd

[2013] EWHC 3560

. In that case, the court noted that a century of psychological research has demonstrated that human memories are fallible. Memories are not always a perfectly accurate record of what happened, no matter how strongly somebody may think they remember something clearly. Most of us are not aware of the extent to which our own and other people’s memories are unreliable, and believe our memories to be more faithful than they are. External information can intrude into a witness’ memory as can their own thoughts and beliefs. This means that people can sometimes recall things as memories which did not actually happen at all.

[12]The process of going through Tribunal and other proceedings itself can create biases in memories. Witnesses may have a stake in a particular version of events, especially parties or those with ties of loyalty to the parties. It was said in the Gestmin case: “Above all it is important to avoid the fallacy of supposing that because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

Background

[13]The respondent police force is responsible for policing in the West Yorkshire area. The respondent is also the employer for the staff of the National Police Air Service (“NPAS”).

[14]NPAS is regulated by the Civil Aviation Authority (the “CAA”) who are responsible for the regulation of all aviation safety in the UK. NPAS is required to comply with the Civil Aviation Authority Regulations 1991 (the “CAA Regulations”), in addition to its own procedures set out in NPAS’ Operating Manual. NPAS is audited on an annual basis by the CAA regarding NPAS’ compliance the CAA Regulations and its own procedures.

[15]The CAA require operators, such as NPAS, to appoint key posts which must be approved by the CAA including:15.1 an Accountable Manager, who has authority for ensuring that all activities can be financed and carried out in accordance with CAA requirements - Chief Superintendent Vicki White was appointed to this post with NPAS during 2022; and

15.2 a group of persons nominated by the operator to comply with the applicable requirements, known as “Form 4 post holders”. NPAS Form 4 post holders at the times relevant to this claim included the individuals named below:15.2.1 Captain Paul Watts (Head of Flight Operations);

15.2.2 Captain Phil Barlow (temporary Head of Training, later appointed permanently Head of Training);

15.2.3 Mr James Cunningham (Head of Safety).

[16]NPAS provides air support to the 43 police forces of England and Wales and a national response to major and critical incidents. We accept NPAS’ description of its work and regulatory requirements, as set out in the case files and referred to by Captain Watts for the capability hearings (and not challenged by the claimant in those hearings): “Aviation is a very high risk activity and the delivery of police air support only increases the level of risk through the complex and challenging nature of that specific environment. Accordingly, the provision of air support is a safety critical function and is heavily regulated by the Civil Aviation Authority (CAA). NPAS must operate in accordance with the NPAS Operations Manual which is approved by the Regulator. Any deviation would require NPAS to seek approval from the CAA. In accordance with NPAS Operations Manual Part-D Section 3.1.12, all pilots employed by NPAS must undergo an Operator Proficiency Check (OPC) every 6 months, the purpose of which is to assess competence and ensure NPAS standards are adhered to and maintained. The Operations Manual states each alternate OPC, at least once per year, is to be conducted on an FSTD (simulator) certified for such use. This requirement is carried out by NPAS by way of a requirement under Regulation [The Acceptable Means of Compliance Regulation]. … NPAS have agreed with the CAA that the requirement for FSTD is met through the use of a contracted simulator for alternate 6 monthly pilot Operator and Proficiency Checks (OPCs). The simulator is used to practice and test emergency scenarios which cannot be replicated safely in an aircraft. [Captain Watts explained during the capability hearing on 23 August 2023 that this could include, for example, loss of tail rotor effectiveness]. In addition to the OPC, a Proficiency Check (PC) is required to be carried out every 12 months and is part of the CAA’s requirements for the licence holder to demonstrate their ability to operate the aircraft type.”

[17]NPAS’ funding comes from contributions from the England and Wales police forces. NPAS’ budget of around £55 million is set in January each year, approved by around ten Police and Crime Commissioners and Deputy Mayors who sit on the NPAS Board. West Yorkshire Police is the lead force and operator of NPAS. Chief Superintendent White explained that the budget consists predominantly of staff costs. The budget also covers the leases for NPAS’ bases, costs associated with the maintenance of those bases and the aircraft, aviation fuel and all other aviation costs. She was unable to confirm the percentage allocated to training.

[18]NPAS employed around three hundred staff, including around 80 pilots at the times relevant to this claim. NPAS’ pilots flew from 14 bases in England and Wales, based at which were staff including a Senior Pilot, Line Pilots, Base Manager and Tactical Flight Officers. NPAS’ Line Pilots fly aircraft including helicopters (rotary) and/or aeroplanes (fixed wing), depending on their qualifications. NPAS used two types of helicopter at the time. Most of NPAS’ helicopters were type EC135 (which the claimant flew). NPAS also used a limited number of EC145 helicopters, which were flown from its London base. NPAS also has a small team of National Line Pilots, whom it uses to cover pilot ‘abstractions’ (i.e. pilot absences, e.g. due to the need for pilots to be removed from the rota to undertake training). NPAS states that the purpose of National Line Pilots is to: “…provide a reasonable level of resilience to maximise service delivery as without a pilot a multi-million pound aircraft and its team of Tactical Flight Officers are left unused at a base. The NLP team in itself is insufficient to cover all abstractions and a small number of freelance pilots are utilised on an ad hoc basis, at the rate of £685 per shift.”

[19]NPAS’ Training Department is an Approved Training Organisation (“ATO”) authorised and regulated by the CAA. NPAS employed two dedicated Training Captains during the relevant period: Captain Jamie Thomsett and Captain Clive Clark. Training Captains are certified by the CAA as Type Rating Instructors (“TRIs”) and Type Rating Examiners (“TREs”). Captain Thomsett joined NPAS in 2012 and Captain Clark joined NPAS in 2019. They reported into NPAS’ Head of Training, Captain Barlow. There were other pilots who also held certain training qualifications (such as Captain John Roberts who was a Line Pilot based in London), but they were not employed as full time Training Captains and trained other pilots on an ad hoc basis. Claimant’s employment

[20]The claimant was employed by the respondent as a pilot for NPAS from 30 April 2013 until his dismissal on 18 January 2024. For the first part of the period relevant to these proceedings, he was employed as a Line Pilot based at NPAS Almondsbury (near Bristol). The claimant’s line manager at that time was Captain Richard London, who in turn reported into Captain Paul Watts (Head of Flight Operations).

[21]In January 2022, the claimant became a National Line Pilot. As a National Line Pilot, the claimant could be allocated shifts anywhere within England and Wales. The claimant’s line manager changed to Captain James Booth (National Senior Pilot), who also reported into Captain Watts. Captain Booth left NPAS in midFebruary 2023 and was replaced by Captain Wilkinson. Claimant’s test with Captain Thomsett – July 2021

[22]As at 14 July 2021, the claimant had only flown twice since April 2021 due to a period of sickness absence and holiday. The claimant was scheduled to undertake an Operator Proficiency Check with Captain Thomsett on 20 July 2021, before that qualification expired on 31 July 2021. During the pre-brief that morning, the claimant informed Captain Thomsett that some of the airfields were closed. Captain Thomsett stated that the test would need to be rescheduled. There was a dispute between the claimant and Captain Thomsett as to the amount of preparation undertaken by the claimant, during which the claimant alleged that Captain Thomsett swore and used unprofessional language towards him.

[23]Captain Thomsett contacted the claimant to re-arrange the checks for 28 July 2021. The claimant refused to fly with Captain Thomsett. The claimant exchanged emails with Ms Lauren Hickey (Training and Development Co-ordinator). Ms Hickey considered the training rosters and noted that Captain Clark was on leave and that only Captain Thomsett was available to test the claimant before his type rating was due to expire on 31 July 2021.

[24]The claimant responded to Ms Hickey on 20 July 2021 stating: “Jamie did mention that Clive was on leave and wouldn’t appreciate coming in to then fly with me. I see you have since sent an invitation invite for me for the 28th which is showing as with Jamie. Is this correct? Just to reiterate and as I informed Jamie. I have advised Jamie that it’s best that we don’t fly together. Can an alternative plan therefore please be sourced and would it help for me to provide some alternative dates?”

[25]Ms Hickey responded stating: “I appreciate it’s not an ideal situation but as it’s not a test fail, Jamie can still legally conduct the OPC/PC. With only 2 TRE’s [Training Examiners] at my disposal, when the training plan is set, there is very little scope to change examiners without an impact on other pilots training. If you feel Jamie carrying out your test is completely unworkable could you please reply with your reasoning so I can discuss it further with HoT when he’s back from leave. As it stands an OPC/PC with Jamie 28th July is the only option at my disposal.”

[26]The claimant replied and said: “All noted. Unfortunately I am not prepared to fly with Jamie next week.”

[27]The claimant said that he would prefer to discuss matters in person and later provided a detailed email of his concerns to Captain Barlow on 29 July 2021. He also discussed his concerns with his managers, Captain London and Captain Watts, but did not state in his witness statement or his oral evidence what those discussions involved. Captain Barlow then rearranged the claimant’s test with Captain Clark. The emails exchanged during this period by the various Captains also do not provide details of any additional concerns raised by the claimant. We therefore concluded that the concerns raised by the claimant with Captains London and Watts were in similar terms to those raised with Captain Barlow. The claimant’s email to Captain Barlow centred on:27.1 Captain Thomsett’s general approach to training, which the claimant described as ‘belittling’ and ‘aggressive’. The claimant noted that he had known Captain Thomsett since they were both in the army and that he had never enjoyed training flights with him; and

27.2 the unprofessional language that Captain Thomsett used towards him during the flight briefing.

[28]The claimant summarised concerns at the end of his email as follows: “To date I remain of the same opinion that I should not fly with Jamie. I haven't failed anything, I planned what Jamie asked but unfortunately that plan couldn't be conducted, so it required flexibility and some tweaking, which I provided. Yet for whatever reason what was suggested was not going to be acceptable. I enjoy flying and learning when being tested. But it has to be conducted with professional interaction and through suitable engagement. I firmly believe aggressive, insulting at times and inappropriate belittling behaviour don't belong in Aviation. As clearly this has a negative impact on Human Factors and CRM. Previously I have never had any issues with any other flying Instructors during my time within NPAS and I come away having learnt something and I am often complemented on my flying. This helped by Instructors being uniformly detached, having an impartial attitude and having a good working relationship. Sadly I can't say any of this with Jamie and I am concerned that I won't be fairly judged or treated correctly hence why I no longer want to fly with him and don't want to expose myself again to any further poor conduct.”

[29]Captain Barlow stated in his email dated 29 July 2021 to Captain London and Captain Watts following a lengthy telephone call with the claimant: “However, what is striking in all of the discussions is that Stewart had formed his opinion of Jamie long before (and by his own admission) at the point of the original booking yet at no point did he communicate this to the department. It does appear that previous military “path crossing” has made Stewarts decision process easier. According to our records the two paths have not crossed in NPAS previously save some NVG training and a ground school. I therefore find it difficult to understand why Stewart is refusing to fly based on this alone.”

[30]Captain Barlow also stated (with the Tribunal’s bold and underlined words for emphasis): “During my discussion I tried to explain that the lack of any planning by Stewart before the test day, and the fact that at lift -15 mins he advised he had not made contact with any airfields is vastly different to making contact only to find that on the morning of the flight a NOTAM has been issued confirming ATC being unavailable. Stewart cited that he had not been able to ring the airfields as his instructions for the flight arrived during his last set of nights. I queried if he attempted to ring after those shifts and he confirmed he had not. Asked if he considered asking the oncoming day pilot to give them a quick ring, he confirmed that had not been done either. Stewart then went on to say that he had previously been in trouble for working on his rest days. It does appear though that the initial plan sent through could have been negotiated and discussed between the respective pilots well in advance had Stewart made any attempt. Stewart states he feels Jamie was not interested in elements of the brief. I advised that any examiner does not have to check every aspect of the usual process and that is his/her discretion. Often tailored to the test or check taking place it remains a discretion item. Stewart now understands this position. Fitting of duals and Check A was discussed and I enquired as to whether as happens at other bases the candidate asks the preceding shifts pilot to assist by fitting them and / or undertaking the check A particularly when lift times are tight. Stewart had not considered this. He advised he cannot fit duals due to a direction from Occupational Health – a fact which was not known by the training department but was something he could have communicated at the point he knew or the original booking whichever occurred first. In summary Stewart feels he was not treated equally and is refusing to fly with Jamie. I am somewhat surprised that a decision has been reached by him in this regard when the formation of this position is not linked to anything within our recorded training. Why has this never been raised previously and why wait until the day of the test to declare an issue? Looking at the planning deficiency I am content that had Stewart made enquiries in the window of opportunity he was given he would have been able to engage fully in the alternative process but on this occasion the lack of any attempt has somewhat thwarted any alternative. That is a matter for Stewart to determine any answers. The refusal now sits outside of the department and the position is that Stewart is refusing to fly with an individual. Bigger picture, we do not and will not allocate pilots to specific instructors. Short term this is not possible due to resourcing but long term we cannot support a pilot only being checked by one examiner for many reasons. Our use of external examiners is reduced to the point where we do not require them so this is not an option…”

[31]The highlighted wording in Captain Barlow’s email dated 29 July 2021 demonstrates that as at this time, Captain Barlow was concerned about the implications of the claimant’s refusal to fly with Captain Thomsett because this would mean that the claimant could only undertake checks with one internal examiner. Claimant’s tests with Captain Clark – 23 August and 9 September 2021

[32]The claimant was unable to fly from 1 August 2021, due to the expiry of his qualification. The claimant’s Proficiency Check and Operator Proficiency Check were rearranged for 23 August 2021 with Captain Clark. Captain Barlow spoke to the claimant regarding any training needs prior to the test, due to the claimant’s qualification having lapsed and the claimant confirmed that he was able to be examined for both checks. The claimant exchanged emails with Captain Clark, Captain Barlow and others regarding arrangements for the test.

[33]Captain Clark emailed the claimant on 16 August 2021 and provided the details for 23 August 2021: “Hopefully, you will have been advised that we are scheduled to fly together on {Mon 23rd Aug 2021} in order to conduct your {Day/Night/NVG} renewal PC/OPC on the EC135 in accordance with UK Part-FCL and the NPAS Ops Manual. I will be driving from home and aim to arrive at {St Athan} for {11:30} with a view to taking off at {14:30} (all times local). After a classroom TK session, we will conduct the IFR part of the flight first, followed by the VFR section. Preparation In order to achieve these checks, the following will be required:  Aircraft “Check A” and dual controls fitted prior to the arranged briefing time (I will conduct & sign for the independent  check on my arrival, if required).  A “MATED” brief from you which will follow the formal brief for your PC/OPC. You may also be asked to give a local area  brief to inform the examiner of any updates to local procedures (including base Emergency Recovery Procedure, if  published).  Comms: we will be using the callsign {Police 92} and the standard VFR squawk or as allocated by ATC (not your usual  operational squawk).  Appropriate planning & bookings made, for example: o Instrument approaches booked: {1 x RNP at Cardiff, 1 x ILS at St Athan} o Aircraft refuelled to a minimum of 490 kg. o Easyweigh prepared & printed (examiner weight {75} kg). o Route & fuel planning with appropriate instrument approach plates (including alternates for IR pilots).  Preparation of the following forms: o CAA Form SRG2138 – Examiner’s report form. o NPAS Form FOP/027 – OPC form. o NPAS Form FOP/024 – Miscellaneous training form (for Auto/Man or Preference Injector Check, if required). o Forms will now be completed electronically – no need to print/prepare any forms. Please feel free to contact me to discuss timings or any other questions you may have regarding the content of this email; my phone number is below if you prefer. I look forward to seeing you soon!”

[34]The claimant responded stating: “For information and I know Gcap will tell you this, but thought it best to also advise you and this isn’t me trying to make excuses. But I haven’t flown a PBN approach in a EC135 actual aircraft and I haven’t also therefore used a GNS430 for PBN inflight. The last time I flew a PBN approach or any Instrument approach for that matter, was with you in the Simulator on the 23rd March 2021 using either the 750 or 850 whatever the Babcock sim has fitted. I don’t hold an NPAS IR, but I have practiced loading a PBN approach via the GNS430 on the ground and read over the NPAS GNS430 PBN guide and manufacturers guide. The last time I conducted IFP which was the 7th July where the safety pilot did briefly discuss with me some PBN info with the GNS430, this after the relevant sortie requirements and before the ELP. Finally in the last 3 months I have flown just less than 10 hours. If I have any further queries with regard your email instructions then I will let you know. Otherwise I shall look forward to seeing you next week at St Athan.”

[35]Captain Clark sought advice from Captain Barlow as to whether this information affected matters. Captain Barlow contacted Captain Watts who emailed on 17 August 2021 and stated: “All we can ask of Clive is that Stewart is treated as any other pilot (which is what he repeatedly requests). I have written to Stewart today pointing out that whilst it is not unreasonable to request to be treated in the same way as other pilots we also expect him to behave in the same manner as other pilots. His comments regarding the use of the Garmin 430 seem entirely unreasonable, I don’t recall ever having been taught how to use the 430 for PBN approaches, but being a professional pilot I used the manual and then practised loading and activating flight plans on an opportunity basis. I would not claim to be any better than an average NPAS pilot!”

[36]Captain Clark assessed the claimant on 23 August 2021 and concluded that the claimant had failed to meet the CAA standard required for a particular approach. He therefore awarded the claimant a partial pass. Captain Clark mandated a minimum of one hour’s training on the failed part of the syllabus. As a result, the claimant remained unable to fly in August 2021.

[37]The claimant emailed Captain Clark three times between midnight and 11.20am on 24 August 2021 to set out his concerns regarding the test. The later emails were copied to Captain Barlow, Captain Watts, Captain London and the Base Manager. Captain London emailed the claimant at 11.35am stating: “Please refrain from this shot gun approach of emailing the Form 4 holders. We have discussed this before. The next step will be more formal. I have the vehicle to raise these training suggestions in the Senior Pilot forum and with my close links to the training department as the CRM Manager. Use the extra training to your benefit. To clarify, I was expecting you to conduct the Instrument element yesterday I am not sure why you did not think that would be the case. Especially As the lack of IR planning was part of the original contested (not completed / Failed) event. And was cited as such in the FOP033. I re-iterate “Use the line management chain” cc ing the next line manager and form 4’s weakens any process that is designed to protect all. Your intent to improve training may have validity, but swamping Form 4’s with a string of emails is not helpful, and not what I expect from a Line pilot, especially when I am here to consider that suggestion and challenge and progress it higher if needed. I hope the Family matter is improving.”

[38]The claimant responded at 12pm on the same day stating: “All noted and I won't email about this again. But with outstanding questions and me asking for their comment following them being CC'd in seems somewhat different. The email from the T/HoT that I will be completing a OPC and PC (V) with Clive on the 23rd August is what I was formally expecting. Yes I was expecting to complete IF elements but not formally, as it wasn't mentioned about the PC (I) until after the test and previously a degree of training was also mentioned as the PC (I) element wasn't due renewal. As for the failure form you mention with Jamie, we didn't get past the NOTAMs of the brief, so as previously mentioned I would dispute there was a lack of IR planning. Late issued NOTAMs prevented Instrument approaches taking place, so on my first day back learning this and trying to achieve a 08:15hrs lift caused the problem. Not being told of any failure when I stopped the brief, yet issuing this 2 weeks after the event and it only being issued because I raised concern with flying with Jamie and not being prepared to fly with him again. This all seems somewhat strange and wrong. Hopefully this now helps clarify matters.”

[39]The claimant received a simulator training session on 31 August 2021 and a further assessment with Captain Clark was arranged for 9 September 2021, following which the claimant was awarded a full pass. The claimant was therefore able to return to his flying duties after 9 September 2021. Claimant’s Regulation 6 appeal to the CAA – 6 September 2021

[40]In the meantime, the claimant emailed the CAA on 6 September 2021 to submit a Regulation 6 appeal. The deadline for submitting that appeal was within 14 days of the failed test. Regulation 6(5) of the Civil Aviation Authority Regulations 1991 states: “Any person who has failed any test or examination which he is required to pass before he is granted or may exercise the privileges of a personnel licence may within 14 days of being notified of his failure request that the Authority determine whether the test or examination was properly conducted. In order to succeed you will have to satisfy the Authority that the examination or test was not properly conducted. Mere dissatisfaction with the result is not sufficient reason for appeal.”

[41]Neither NPAS nor Captain Clark were aware that the claimant had submitted his Regulation 6 appeal at the time of the claimant’s re-test on 9 September 2021. Captain Clark was later contacted by the CAA regarding the claimant’s Regulation 6 appeal, as set out below.

[42]The claimant’s email of 6 September 2021 did not set out the reasons why he wished to submit an appeal. The claimant sent a follow up email to the CAA on 12 September 2021, detailing his reasons for his appeal. In summary, the key reasons for the claimant’s Regulation 6 appeal consisted of:42.1 the claimant’s PC(I) (which was the element for which he was awarded a partial pass) should not have been undertaken because his existing PC(I) was valid until March 2022; and

42.2 the claimant stating that he had not been provided with the paperwork before the test took place.

[43]The claimant corresponded with Mr Paddy Connolly at the CAA in September 2021 regarding his Regulation 6 appeal. He summarised his complaint to Mr Connolly in the same terms as his email on 12 September 2021 as follows: “Being tested for something that wasn’t due, wasn’t suitably discussed/agreed, went against what I have been advised by the NPAS Training Dept and where I also have some concerns with the paperwork. This makes me feel that this is worthy of a review.”

[44]Mr Connolly asked the claimant some questions regarding his appeal and noted that he would need to speak to Captain Clark to obtain his view of the test. Mr Connolly contacted Captain Clark on 7 October 2021 and attached the emails between himself and the claimant. Captain Clark responded on the same date and stated that:

[45]“I particularly dispute Stewart’s suggestion that he didn’t know what he was being tested for (he was fully briefed) although I do admit that I did not get him to sign the SRG2138 prior to flight due to completing the form electronically. I also strongly dispute his claim that I appended his signature to blank forms – they were completed post sortie and he signed completed forms electronically”.

[46]The claimant was cross-examined during this hearing regarding his assertion that he believed a breach of a legal obligation had taken place. The claimant referred to Regulation FCL.1030 that states: “(a) When conducting skill tests, proficiency checks and assessment of competence, examiners shall: … (2) verify that the applicant complies with all the qualification, training and experience requirements in this Part for the issue, revalidation or renewal of the licence, rating or certificate for which the skill test, proficiency check or assessment of competences it taken; … (b) After completion of the skill test or proficiency check, the examiner shall: … (3) provide the applicant with a signed report of the skill test or proficiency check and submit without delay copies of the report to the competent authority responsible for the applicant’s licence…”

[47]The claimant also referred to Regulation FCL.625 IR which stated that: “… (b) Revalidation(1) An IR shall be revalidated within the 3 months immediately preceding its expiry date by complying with the revalidation criteria for the relevant aircraft category.

(2) If applicants choose to fulfil the revalidation requirements earlier than prescribed in point (1), the new validity period shall commence from the date of the proficiency check.”

[48]We note that Regulation FCL.1030 does not require applicants to be provided with test paperwork, before the test commences. We were also provided with a copy of the Examiners Report (Form SRG1238) in the hearing file, which the claimant was provided with after the test. The form did not state that the candidate had to sign the form before the test took place.

[49]The Regulations do not state that it is a breach of a legal obligation to revalidate a PC(i) earlier than the 3 month period prior to its expiry date. Regulation FCL.625 IR sets out provisions that apply if the revalidation requirements are fulfilled at an earlier stage – they do not state that it is a breach to do so before that 3 month period.

[50]The claimant was also cross-examined on whether or not any breaches in practice relating to his test were a matter of public interest. The claimant maintained that it was a matter of public interest that pilots are trained correctly. The claimant stated in one of his emails that he would ensure that Unison would raise points or concerns regarding pilot training. Claimant’s trade union activities

[51]The claimant was a member of the Unison trade union and was also the Unison West Yorkshire Police Branch Health and Safety Officer and a workplace steward at the time of these events. He became a union representative in around 2019 and his duties included attending Joint National Consultative Committee meetings on a quarterly basis in his capacity as a health and safety representative. Most of the claimant’s duties related to health and safety duties, relating to all sixteen districts/departments within the respondent (of which NPAS was one).

[52]The claimant stated in his witness statement that he had been subject to ‘historic’ detriments relating to his trade union activities by NPAS. However, the claimant did not pursue any allegation during this hearing that he was dismissed because of his trade union activities in his cross-examination of the respondent’s witnesses. He did not put to ACC Baker or ACC Khan during cross-examination that the reason (or principal reason) for his dismissal was his trade union activities. Nor did the claimant suggest to Chief Superintendent White that any of her decisions (or those of any other individuals involved in these proceedings) were influenced by his trade union activities.

[53]The Tribunal asked Chief Superintendent White about the impact of the claimant’s trade union activities on the matters arising from his detriment complaints. The Tribunal accepted Chief Superintendent White’s evidence that Captain Barlow would have known that the claimant was a trade union representative, but that this had no impact on Captain Barlow’s in his role as NPAS’ Head of Training: “The claimant’s trade union activities had no impact on Captain Barlow. Captain Barlow is a fixed wing pilot if he is flying (he flies aeroplanes, not helicopter) – he does not work with the claimant on a day to day basis, he does not line manage the claimant and he does not fly with him. I cannot see any reason why Captain Barlow would or wouldn’t want the claimant to be trained. It has no positive or negative outcome for him because operational delivery is nothing to do with him.” JNCC Meetings and minutes – 2 November 2021 and 1 February 2022

[54]The claimant alleged that his trade union activities led him to be subject to detriments as part of these proceedings. The only trade union activity that he identified specifically in the list of issues was the concerns that he says that he raised at two meetings in November 2021 and February 2022 regarding Captain Barlow’s Head of Training role. The claimant also states that the concerns that he raised as being disclosures for the purposes of his whistleblowing detriments, along with his Regulation 6 appeal to the CAA and the concerns that he raised regarding Captain Thomsett and Captain Clark.

[55]The claimant attended quarterly Joint Negotiating and Consultative Committee (“JNCC”) meetings in his capacity as a Unison health and safety representative. The claimant states that he raised concerns regarding Captain Barlow’s appointment as the Head of Training at those meetings, due to Captain Barlow’s flying and examining background as a fixed wing (i.e. aeroplane) pilot when the claimant states that 95% of NPAS’ aircraft were rotary (i.e. helicopters). The claimant states that there were also discussions at that time as to whether or not NPAS would continue to maintain any fixed wing aircraft as part of its fleet. The claimant was unable to recall the precise words that he used when stating his concerns regarding Captain Barlow’s role.

[56]The minutes of the meetings on 2 November 2021 and 1 February 2022 do not record any concerns raised by the claimant regarding Captain Barlow’s appointment. The minutes state regarding that appointment:56.1 2 November 2021 – “Head of Training post – CAA are content that whilst there is still no firm decision in relation to fixed wing the HoT can be filled temporarily. Once a decision has been made around fixed wing we can move forward with the advert.”

56.2 1 February 2022 – “Advertising for Head of Training now a decision has been made regarding the fixed wing.” The minutes also record that the Board had decided to retain the four fixed wing aircraft.

[57]We note that other points raised by the claimant at the meeting on 2 November 2021 were minuted, including in relation to training costs and flying hours.

[58]The minutes of the February 2022 meeting also state that the minutes of the November 2021 were approved by those attending the meeting. The claimant stated that the minutes of the meeting were not produced until the day before the next meeting and that he had not had chance to read them. He also noted that the February 2022 minutes did not contain any comments from trade union representatives on any of the points raised.

[59]The claimant states that he emailed NPAS regarding inaccuracies in the minutes from his Unison email addresses but that these emails were not disclosed as part of these Tribunal proceedings. The claimant states that he no longer has access to those email addresses.

[60]Captain Barlow did not attend either meeting. Chief Superintendent White attended the November 2021 meeting but does not recall the claimant raising concerns regarding Captain Barlow’s role as Head of Training.

[61]We also note that Captain Barlow’s appointment as temporary (and later permanent) Head of Training was approved by the CAA because the post of Head of Training was a Form 4 post-holder.

[62]We concluded that the claimant did not raise concerns regarding Captain Barlow’s appointment that were deliberately omitted from the JNCC minutes. It was well known within NPAS that Captain Barlow did not have rotary experience and that if NPAS dispensed with its fixed wing aircraft, then he could not continue in his role as Head of Training. In addition, the CAA had approved Captain Barlow’s temporary appointment into the role and their approval was required to confirm his permanent appointment in the role.

[63]In any event, if the claimant did raise concerns, there is no evidence to suggest that Captain Barlow was aware of those concerns. Captain Barlow did not attend either meeting and, even if he saw the meeting minutes, neither set of minutes recorded the claimant’s concerns. Pilots’ ability to refuse to fly with others

[64]Both parties agreed that pilots could refuse to fly with others as a matter of principle, although they disputed the source of this principle. Captain Booth also agreed in his oral evidence that until the dispute between the claimant and Captain Thomsett was resolved, it would not be appropriate for those pilots to fly in an aircraft together (although he noted that the position for simulators was different).

[65]The claimant stated in his witness statement for his hearing that (in relation to his refusal to attend the re-arranged test with Captain Thomsett): “For both H&S and flight safety reasons the test could not take place, until the issues resolved. It would not be in the Public’s interest to have two pilots flying together with unresolved issues.”

[66]The respondent relied on the examiners’ exemption in FCL.1005 which states: Regulation (EU) 2019/1747 FCL.1005 Limitations of privileges in case of vested interests Examiners shall not conduct:a. skill tests or assessments of competence of applicants for the issue of a licence, rating or certificate to whom they have provided more than 25 % of the required flight instruction for the licence, rating or certificate for which the skill test or assessment of competence is being taken; and

b. skill tests, proficiency checks or assessments of competence whenever they feel that their objectivity may be affected.

[67]The claimant argued during this hearing that this Regulation was intended to apply to different situations, such as family members or vested financial interests, rather than internal disputes. He cited the guidance material example given on the EASA (the European Union Aviation Safety Agency) website of an Executive Director of EASA’s decision relating to paragraph (b): Examples of a situation where the examiner should consider if their objectivity is affected are when the applicant is a relative or a friend of the examiner, or when they are linked by economic interests or political affiliations, etc.

[68]Chief Superintendent White accepted in her evidence that the provisions of FCL.1005 apply to examining, not to training. However, we accept her evidence that there is a risk to safety if pilots are forced to fly together, regardless of whether or not this is set out in the Regulations: “However, I have to factor in the safety side. I don’t want any pilot in the air to be subject to any undue pressure – we call it distractions, i.e. factors that may detract from safety in the aircraft. There was still a risk that my pilots would have been distracted by the threat of being complained about by [the claimant]. Whenever there is a risk to safety, I would still not insist that one pilot flies with another.”

[69]Captain Watts explained during the 21 August 2023 capability hearing (referred to in detail later in this Judgment) that training and examining is one of the high risk areas of aviation. He stated that much of training is around how a pilot deals with an emergency situation. He stated: “So to simulate that in the aircraft and you’ve gotta put the aircraft into an unsafe situation and so, and if the, if the person under training then gets it wrong it’s up to the Examiner to recover that situation. So the aircraft’s already in an unusual situation and I was an Instructor and Examiner for 10 years and in fact I’ve been involved in the only accident in NPAS that was a Trainer accident…so I know how quickly things can go wrong so it is a, it’s a pressurised environment and you’d want to avoid any other distractions because that, that Instructor or Examiner needs to be totally focussed on the job in hand.”

[70]The respondent also relied on documents supporting the safety issues including:70.1 Chapter 14 of NPAS’ Flight-crew Human Factors Handbook (CAP 737) which referred to the psychology of group behaviours and decision-making; and

70.2 Appendix E to the Operations Manual (Part D) which refers to creating an atmosphere of open communication, admitting mistakes, giving and receiving feedback constructively, managing distractions amongst other behaviours.

[71]Neither of these documents contained any specific detail regarding safety risks when pilots did not wish to fly with each other. Emails from Captain Thomsett and Captain Clark refusing to fly with the claimant – November 2021

[72]Captain Clark emailed Captain Barlow on 18 November 2021 and stated that he was not willing to fly with the claimant. His email said: “You will be aware of the details of my flight with him on 23 August 2021 where I could not award a full renewal PC/OPC pass to him following his performance. On that evening and the following morning, I received numerous emails form him challenging my decision and seeking clarification as to why he was not successful, despite me giving a full debrief after the flight. As is his right, Capt Hadley-Clarke submitted a Regulation 6 appeal against me which, as you will be aware, requests the CAA to investigate whether the test was properly conducted; this in despite of him stating in one of his emails that he found my conduct “professional as always”. Furthermore, I conducted a subsequent retest of the failed item and awarded Capt Hadley-Clarke a full pass for his PC/OPC> the CAA’s investigation has continued over the past weeks and I am advised that the next ‘hearing’ is due to take place on 15 January 2022. Although I am of the firm belief that I did indeed conduct the test properly, there is always a seed of insecurity sown when any individual is investigated and this has played on my mind since being made award of the appeal and will continue to do so into next year. I find it more frustrating that whatever the outcome of the investigation, nothing will change for Capt Hadley-Clarke (he has already received a ’free’ re-test which he has passed). This suggests that his intent is to somehow case doubt over my conduct and blemish my professional character. For these reasons, and for the first time in my flying career of 25 years, I find myself in the regrettable position of having to declare that, in line with Part-FCL1005(b), I am no longer willing to work with Capt Hadley-Clarke at any future point as I feel that my objectivity may be affected given his recent, unjustifiable questioning of my conduct.”

[73]Captain Thomsett sent a draft copy of his email to Captain Barlow to Captain Clark on 18 November 2021 (we were not provided with a copy of the final email) which stated: “The recent conduct of Captain Hadley Clark has undermined my ability to deliver his training and checking, my objectivity has been unjustly questioned by Captain Hadley Clark (who has refused to fly with me, I have not been sighted of his reasons) his actions have been indirect, vague and have lacked integrity, this has led me to feel huge distrust toward Stewart. I would feel uncomfortable without a third party (witness) present during training and checking and feel that this is a toxic learning environment and not in line with the CRM or relationship values required in a professional cockpit. This is the first pilot I have refused to train in 19 years of being a pilot instructor, it has no bearing on any of our other NPAS crewmembers.”

[74]Captain Barlow replied to Captain Clark and Captain Thomsett on 19 November 2021 and stated: “Emails received regarding continued training and testing of Stewart - content fully supported. Jamie, can you link up with Clive please and just make your rationale, content and layout of your email similar to his. Yours just needs a bit more weight and substance in some key areas to further support the position you articulate well already, the Accountable Manager will want to see this.”

[75]We consider the wording of Captain Barlow’s email of 19 November 2021 to be inappropriate. However, we concluded that relationships between both Training Captains and the claimant had already broken down by this time due to:75.1 the claimant’s refusal to fly with Captain Thomsett following the attempted test in July 2021; and

75.2 the claimant’s allegations as part of his Regulation 6 appeal that Captain Clark failed to brief him fully and asked him to sign a blank examiner’s report.

[76]Captain Barlow’s email dated 29 November 2021 to Chief Superintendent White, Paul Watts and others stated: “As Head of Training for NPAS this Regulation 6 appeal is not something I am sighted on as it is a direct process between the Regulator and both parties – the appointed examiner and candidate. I am though aware of the brief content of this and despite Captain Hadley-Clarke receiving full flying capability by Captain Clark, the former has pursued his appeal with maximum effort. The current known position is that the CAA are set to hear the appeal with both sides legally represented in January 2022. Irrespective of this appeals process I have a duty of care to my examiners as both individuals employed and managed by myself but also to uphold the requirements of the Regulator as both an Air Operator and an Approved Training Organisation in regards to examiner objectivity. This is referenced in OM-D 2.1.11.2.5 and 3.1.7. I have been formally approached by both Captain Thomsett and Captain Clark who given the issues they have both faced have formally refused to conduct any further training or testing with Captain Hadley-Clarke. I cannot enforce a student / candidate upon an instructor or examiner and nor would I, additionally I am aligned with the position that given the events above and the pending Regulation 6 appeal against Captain Clark that their objectivity is no longer assured. I have attached their communications to this email. It is not for a student to determine who he or she is trained or examined by and in this case I am presented with a position that the normal carousel of instructor / examiner allocation to all other NPAS pilots cannot take place with Captain HadleyClarke. That puts Captain Hadley-Clarke in a position of forcing his own examiner not just for his next test in March 2022, but also poses a question as to how he is examined for the rest of his NPAS career. Whilst I may be able to use Captain John Roberts from NPAS London in March, Captain Roberts is currently considering his future on the EC135 via myself and in any case this would only afford at best one more test. To be able to use Captain Roberts would require himself to abstract routinely from the London EC145 line output to regain his currency on the EC135 in time for a test. It would be unfair to place Captain Roberts in a test environment without first being current and competent on the EC135 type. A position which I will not allow in fairness to other pilots and also in light of our processes.”

[77]Captain Barlow and Captain Watts discussed matters and Captain Barlow then emailed on 30 November 2021 to confirm plans to keep testing the claimant whilst his CAA appeal was ongoing with Captain John Roberts (referred to as “JR” in his email): “As discussed on the phone I think there is a sufficient coverage plan for the next 18 months by using Babcock TRE’s for March in the sim [simulator] and JR next September on the aircraft. With regards JR I will programme him for his scheduled training on the EC135 however, I do require that JR remains an active pilot on that type. To not do this would put JR in a difficult position in not being his best and his capacity to act as both an instructor and examiner. Were Stewart to perform below an acceptable standard I am sure JR’s flying of the EC135 would be used against him. To that end, as we discussed I would like to see JR fly a shift on the type at least once per month to achieve no less than 90 minutes flying. That would be in keeping with the Competency Flying direction we have given to all pilots. I am mindful this will potentially impact NPAS London but if I can ask you to manage that with the senior Pilot, ROM and Warren please? I will make contact with JR and advise that I will be keeping him current on type and give an overall picture of events. One final matter is that of the refresher training Stewart will be required to undertake as an outcome of the fuel pump caption peer safety review. This training will need to be carried out by a TRI and that will have to be JR. I will be looking to get this training completed before Stewart transfers to the National Line Pilot team in January. JR will need a day to deliver this with North Weald or Redhill being the location.”

[78]As at the end of November 2021, NPAS envisaged that the Regulation 6 appeal hearing would take place in January 2022 at this stage. However, it was later adjourned and reconvened on a number of occasions before the final hearing in June 2022. The CAA did not produce the outcome of the appeal until 8 August 2022. Captain Barlow’s email to Babcock – January 2022

[79]Captain Barlow sent an email to Captain Matt Springford (Head of Training at Babcock) on 17 January 2022, asking for a Babcock examiner to conduct an assessment. Captain Barlow did not mention the claimant by name in the email and stated: “In the short term I wanted to discuss with you a pilot who is scheduled to undertake his sim OPC in March but behind the scenes the picture is incredibly complicated. Not wishing to give the full details the training department TRE’s [Training Captains] have refused to engage in the short term with him pending investigation which means I am constrained to utilising yourselves as the provider of the TRE. However, given the nature and history it has the potential to be complex and I don’t want to expose undue hassle to yourselves so I am leaning down the lines of requesting Nigel Thomson. This is not something I normally do and it has been a difficult thought process to come to this conclusion. Unfortunately my pilot has a limited window of opportunity which sees the 19-22 March at present the only option. Lauren will manage the booking as she does for others but I think it might be best for us to have a discussion sooner rather than later before committing my plan. This of course assumes Nigel is available in this window.”

[80]The respondent did not call Captain Barlow as a witness during these proceedings. However, this email was discussed during the October 2023 capability hearing and we have read the minutes of that hearing. Captain Barlow’s explanation of that email during the October 2023 hearing appears to be confused following other emails between himself and Captain Springford. For example, Captain Barlow refers to difficulties with finding a substitute pilot for the training originally booked with Captain Vince during the Christmas period, which we note was due to take place in December 2022 (not March 2022).

[81]Assistant Chief Constable Baker (who chaired the hearing) noted that Captain Barlow’s email dated 17 January 2022 had been the subject of the grievance process. We have been provided with the grievance outcome report and grievance appeal outcome (discussed in more detail later in this Judgment). We note that the Assistant Chief Constable Edward Chesters (“ACC Chesters”) rejected point 6 of the claimant’s grievance appeal in relation to Captain Barlow’s email of 17 January 2022 and concluded: “CG [who heard the claimant’s grievance] has provided me with copies of correspondence between, variously, him (CG), Babcock’s, and NPAS training colleagues. This relates to SHC referring to correspondence between PB and Babcock’s, describing a ‘defamatory’ email (from NPAS colleagues) which led to Babcock’s refusal to train/ fly with SHC. I cannot see anything defamatory or of a derogatory or influencing nature within the emails. Babcock has provided a rationale as to why they declined to train SHC and are not compelled to explain further. There are no other independent witnesses who can be interviewed, who could potentially provide evidence which, on the balance of probabilities, would indicate that Babcock were unduly influenced in their decision-making. In considering whether I find the grounds for appeal upheld or not, I have asked myself whether there is anything else that CG could or should reasonably/ practicably have undertaken, and do not consider this to be the case.”

[82]Captain Springford replied on 26 January 2022: “I am vaguely familiar with the background, possibly even having crossed paths at Staverton. Nige is actually scheduled to be at ADAC in Germany, conducting some 145 sim training 20-23 at present. However, it’s not out of the question that another TRE could perform this function. In order for us to accept the request, we would need to know what stage the admin trail for this candidate is i.e. outstanding appeals etc. I appreciate this is a rather woolly and diplomatic answer, and not the one you were after, but hopefully the reasons are clear. Feel free to call or email if you’d like to discuss further.”

[83]We concluded that Captain Springford interpreted the words ‘pending investigation’ as referring to the claimant’s Regulation 6 appeal because Captain Springford states he was aware of the background to this request. We concluded that Captain Springford did not interpret those words as meaning that the claimant himself was under investigation, as suggested by the claimant during his evidence.

[84]We are conscious that we did not have the opportunity to hear evidence from Captain Barlow because the respondent did not call him as a witness to this claim. However, we disagree with ACC Chesters’ assessment of the email dated 17 January 2022 and concluded that the wording of email by Captain Barlow appeared designed to prompt a refusal to provide a Babcock examiner by Captain Springford because Captain Barlow states:84.1 that the situation was ‘incredibly complicated’ and had the ‘potential to be complex’;

84.2 that he did not want to expose Babcock to ‘undue hassle’;

84.3 the Training Captains have refused to engage with the claimant;

84.4 the request was limited to one named examiner and to a four day period (two days of which fell during a weekend), despite standard practice being that pilots were re-tested during the three month period prior to the expiry of their qualifications. Alternative testing arrangements – March/April 2022

[85]Captain Barlow decided to seek the CAA’s agreement to enable the claimant’s check due in March 2022 to take place in an aircraft, rather than in the simulator as required by the respondent’s Operations Manual (Part D) (the “OM(D)”). The CAA granted NPAS an exemption to permit this to happen.

[86]Captain Roberts carried out the claimant’s OPC in April 2022, but was unable to conduct the claimant’s Night Vision Imaging System assessment (“NVIS”) (required to use night vision goggles when flying) because Captain Roberts did not hold that qualification. The claimant was able to re-start flying in April 2022. Claimant’s grievance

[87]The claimant submitted a grievance regarding Captain Thomsett, Captain Clark, Captain Barlow and Captain Watts on 18 July 2022. We were not provided with a copy of the grievance, but we were provided with a copy of the grievance outcome summary report and the grievance appeal outcome letter prepared by Chief Superintendent Chris Gibson of the respondent. The grievance outcome summary report findings included that: “• There has been a breakdown in the relationship between the Training Captains and Captain Hadley-Clarke.

• There was an incident where inappropriate language and behaviour by two individuals was witnessed but does not appear to have been addressed.

• There is disagreement and a lack of clarity regarding the costings for alternative training/examining provision.

• There is a current vacancy for the role of Deputy Head of Training and Training Captain.

• An exemption to the normal training in the SIM was sought and granted and other alternatives have been explored.

• There was a lack of information regarding medical/physical restrictions prior to an examination.

• This is an unprecedented situation that has not been experienced before by those involved.”

[88]The grievance outcome recommendations were: “• NPAS should ensure that FSIs are issued in a timely manner and are accurate. (Head of NPAS and Head of Training)• Whilst I accept that Captain Thomsett and Captain Clark refuse to fly with Captain Hadley-Clarke, some of the costs for external training would be reoccurring I believe the fairest and right and proper thing to do would be to revisit these training costs and publish them in a fair and transparent way so that they can be considered by both sides. (Head of NPAS)

• NPAS to look to fill the vacant Deputy Head of Training and Training Captain role as soon as possible to provide additional resilience to the Examiner function.(Head of NPAS)

• Captain Barlow addresses Captain Thomsett’s language in the disagreement with Captain Hadley-Clarke if he has not already done so. I would recommend this is dealt with by retrospective negative PEN Entry. I do not feel this meets the threshold for a PSD Severity assessment and can be dealt with by management advice. (Head of Training)

• Captain Hadley-Clarke’s behaviour should also be addressed by his Line Manager, and I would recommend this by way of a retrospective negative PEN entry. (Captain Wilkinson).

• Captain Hadley Clarke should ensure at any future testing/training events he allows sufficient time for the preparation of the aircraft and briefing of Instructors.(Captain Hadley-Clarke and Captain Phil Wilkinson)

• NPAS should consider when scheduling testing/Examinations that they ask the candidate is there any medical /physical reason that would prevent or hinder the preparation of the aircraft that they should be aware of. (Head of NPAS and Head of Training)”

[89]The claimant appealed against the outcome of his grievance on 27 July 2023. The claimant’s grievance appeal hearing took place on 22 November 2023, chaired by ACC Chesters. His appeal was rejected and the outcome recorded in a detailed letter dated 12 December 2023. Events in August 2022

[90]The claimant was required to undertake his next Proficiency Check before 30 September 2022 and his next Operator Proficiency Check in the simulator before 31 October 2022 in order to continue flying with his EC135 type rating on his CAA pilots licence.

[91]Captain Booth (who was at that time the claimant’s line manager) contacted Ms Hickey on 2 August 2022 to ask whether the claimant’s Operator Proficiency Check had been scheduled. Ms Hickey said that she had been told to ‘hold off’ planning the check by Captain Barlow. We note that this was shortly before the outcome of the Regulation 6 appeal was issued on 8 August 2022.

[92]Captain Barlow then emailed Captain Springford at Babcock on 5 August 2022 and asked if Babcock’s position had changed since their previous emails in January 2022. His email stated: “Further to my previous email of last year I write in relation to the continued position regarding candidates who are the subject of a formal appeal with the Civil Aviation Authority and/or NPAS examining staff. As you are aware last year we were presented with the situation above and I sought your position in relation to your approvals within the NPAS OM-D regarding conducting routine checking and testing by your staff of those individuals. I need to update my records although I would presume that the position has not changed however, I would be grateful if you could confirm by return the position. For your information the original issue has still not been resolved and remains outstanding.”

[93]Captain Springford replied on the same date stating that Babcock would not be willing to undertake training or assessments for the claimant regardless of the outcome of any ongoing process. Captain Springford also referred to the UK CAA Helicopter Flight Examiner Manual and stated: “Once certified, Examiners shall: a. Conduct tests impartially and without fear or favour in accordance with the current procedures and standards for testing as determined by the CAA.”

[94]Captain Springford concluded: “I do not believe, given the history, that it would be appropriate for me to ask any of my Examiners to perform such a task, regardless of the outcome of any ongoing process.”

[95]Captain Barlow then emailed Chief Superintendent White on 5 August 2022 to update her on the position relating to the claimant’s qualifications. Captain Barlow explained the arrangements made for the claimant’s checks in April 2022 with Captain Roberts and the delays to the CAA Regulation 6 appeal outcome, which was due to be issued within ten days of the hearing on 16 June 2022. He then stated: “[the claimant] is now required to undertake his mandatory simulator and aircraft check to ensure he remains competent and legal to operate for NPAS and to retain a valid EC135 Type Rating on his CAA Pilots Licence. This check must be undertaken before the 30th September 2022 and as part of our routine programming we have already scheduled other pilots with the same expiry.”

[96]Captain Barlow set out the position of the examiners that he had consulted with: “Captain Clark (NPAS) – refusal to fly Captain Thomsett (NPAS) – refusal to fly Captain Roberts (NPAS) – Not eligible to conduct the mandatory checks as he is not qualified in all required areas. In addition has advised that he would prefer not to fly with him if indeed eligible Captain Matt Springford, Babcock Onshore Head of Training – refusal to fly, which extends to all other examiners under his control within his examining cadre Captain Glenn Blake, CAA Flight Operations (Training) Inspector – declined to fly.”

[97]The claimant received the outcome of his CAA appeal on 8 August 2022. We were not provided with a copy of the CAA appeal outcome. The CAA rejected the claimant’s appeal, although the claimant noted that the appeal panel made a number of observations regarding paperwork irregularities. This is corroborated by the grievance appeal outcome letter dated 12 December 2023 in which ACC Chesters stated: “I have read the 24-page CAA appeal report. This indicates that, apart from subrecommendations in respect of record completion, they did not find in favour

[98]Captain Barlow emailed Chief Superintendent White on 25 August 2022. He set out in his email a detailed breakdown of the estimated costs for obtaining a nonUK based external trainer/examiner. The costs that Captain Barlow estimates for a non-UK based Training Captain were in excess of £100,000. Captain Barlow also stated that two trainer/examiners would be required, which would double the costs involved.

[99]Captain Barlow sent a further email to Chief Superintendent White on 26 August 2022 in which he provides comments on a list of six named examiners suggested by the claimant (with assistance from Captain Booth). Captain Barlow stated: “• NPAS currently has no contract in place for external Training Captain provision other than that which is included with the existing Babcock contract for flight simulator provision. Previous discussion with BlueLight Commercial has identified that to pursue the provision of services of this nature would require a tender process in keeping with applicable procurement rules. Whilst there is no direct comparator at this present time to indicate timescales, the complexity of such work is not dissimilar to existing contracts for the provision of services in the training department and a recent simple extension of an existing contract requiring no outside of the normal administrative work commenced 4th April 2022 and is not yet finalised although expected to complete in the next 4 weeks.• Subject to the successful acquisition of services of a Training Captain above they would then need to carry out training to be inducted into the NPAS operation which again sees induction and base training being mandated. This would add, subject to the Training Captains availability, a potential 4 weeks onto the timeline.

• NPAS would then be required to ensure the Training Captain remains current and competent to operate for ourselves although I would expect any potential contract issued would require the individual to be responsible for the upkeep of their own Type Rating Instructor, Examiner and EC135 qualifications. I cannot though say this with absolute certainty as there may some underlying applicable employment or contractual law which would apply however, I wouldn't see this as unreasonable based on industry experience. I have provided some costs below which reflect the above but have tried where possible to reflect a UK based Training Captains costs using representative costs based on a daily rate of £500: Induction and Base Training, 4 weeks, 20 days £10000 6-monthly checks of Captain Hadley-Clarke, 2 days each period £2000 Upkeep of Training Captain competency to undertake NPAS duty £1000 £13000 per annum for contracted services I also have to consider the availability of any contracted Training Captain and the aligning of diaries and expiry dates to ensure Captain Hadley-Clarke remains able to exercise his duty as a line pilot. I am not in a position to determine any issues at this stage but just advise that whilst all endeavours will be made to complete any tests and checks within the validity period there may on occasion be issues outside of my control. I do however raise concern that a potential for just one Training Captain to only conduct training on Captain Hadley-Clarke places an unfair position on other NPAS pilots who are programmed to fly with all available Training Captains. Of course we could utilise this contracted Training Captain to carry out other tests and checks however, I have no need within my departments staffing to utilise external services so this would be an unnecessary and for me, unjustified additional and expensive cost. In conclusion I submit the above for your consideration and decision. I would also advise that Captain Hadley-Clarke sees his PC expire on the 30th September 2022 and his OPC on the 31st October 2022. Given the timescales above Captain Hadley-Clarke will be unable to fly for NPAS beyond the 30th September 2022 until provision is in place for him to undertake the mandatory tests and checks. The NPAS Operations Manual Part-D Section 3.1.14.5 - Refresher Training — gives minimum training required following any pilots inability to fly. This is based on 'time away' and works in increments of days through to months. Based on the above and in consultation with this training requirement I would expect Captain HadleyClarke to be away for between 120 days and 6 months minimum which would require him as that minimum to undertake training details with a Training Captain prior to any PC or OPC. Of course I would be limited in who could conduct that training and would not recommend a contracted pilot to conduct this and the PC and OPC.”

[100]Chief Superintendent White responded to both emails on 9 September 2022 and stated that: “The costs outlined in the second email below are much reduced but still rely on the use of £13000 of public money that is not required to keep any of the other pilots within NPAS up to date with their PC and OPC requirements. This is further complicated by the need to carry out a procurement process which is both costly in terms of time and resource and there is still the ongoing issue of a training captain undertaking training details prior to any PC or OPC due to the amount of time Captain Hadley-Clark is off line. We are a public service and part of my role is to ensure that we are working in an efficient and effective manner. The costs involved here for one pilot are not what I would consider to be reasonable or proportionate in the circumstances and I do not authorise the use of external training captains in the ways outlined in either email.”

[101]Chief Superintendent White clarified in her evidence that she understood that the £10,000 induction and base training costs would be a ‘one-off’ cost when a new examiner was brought on board. However, she noted Captain Barlow’s comments that there was no guarantee that an external examiner may be available to conduct future checks. This would mean that a replacement external examiner may need to be sought, which would incur a further £10,000 induction cost. First capability process – September 2022

[102]Captain Watts decided in September 2022 that the claimant should be placed on the capability process and arranged the first meeting for 12 September 2022. He decided to start the process at stage three of the procedure because there were no action plans that could be in place that the claimant would be able to achieve in this situation.

[103]Captain Watts was not available on 12 September 2022, therefore the capability meeting on that date was chaired by Chief Superintendent White. She explained that the reason for the starting the capability procedure was that the claimant’s qualifications would no longer be valid from 30 September 2022 because NPAS was unable to train and assess the claimant to fly. Chief Superintendent White stated that the claimant would be invited to a hearing chaired by a senior manager within West Yorkshire Police.

[104]The claimant objected to capability proceedings being started. He questioned the rationale and whether or not NPAS had considered other options suggested by himself, Captain Booth and others. October 2022 – first capability process ended

[105]In October 2022, NPAS proposed an alternative solution to carry out the claimant’s checks. Captain Jim Vince had recently been promoted to the Deputy Head of Training role and was undertaking his CAA training qualifications around that time. Chief Superintended White explained in her evidence: “We needed someone to do the instructing because the claimant had had a period of being grounded. He needed some instruction time. He also needed examining – this should have been in the SIM at that point. We originally agreed that Captain Roberts would be trained up in the simulator, but we were waiting for timings and availability and costs through Babcock (who owned the simulator). Around the same time Captain Vince became the Deputy Head of Training – he wasn’t an examiner, he was an instructor. Whichever came first – could get JR trained in SIM and C could do OPC in SIM (with period of instruction by JV) – whilst waiting for this to happen, JV deemed not competent to train – removed from training role – left with no one to instruct C

[106]Captain Barlow was absent on leave during this period. He was unhappy with the solution proposed. Chief Superintendent White later explained in the October 2023 hearing that she and Captain Watts had made a mistake in proposing the solution because this should have been Captain Barlow’s decision as the Head of Training (and therefore the Form Four post-holder, accountable to the CAA for training at NPAS). However, NPAS decided to honour the solution proposed and arrangements were made to book the simulator for the claimant’s training with Captain Vince in late December 2022.

[107]Unfortunately, by December 2022 Captain Vince was deemed as not competent to train during to a number of issues that had been raised regarding his performance as a trainer. Captain Vince was removed from the Deputy Head of Training role, although he remained as a pilot with NPAS.

[108]Captain Barlow therefore contacted Captain Springford at Babcock again on 12 December 2022 to ask if Babcock could provide the training for the claimant on 29 and 30 December 2022, that Captain Vince was originally scheduled to carry out. “I am looking for an update please in relation to Captain Hadley-Clarke and your position on providing training with and to him. Captain Jim Vince was scheduled to carry some refresher training in the sim on the 29th and 30th December covering all aspects of our OPC programme including NVIS however, due to circumstances Jim will not now be able to carry this out and to avoid a complete cancellation I am looking to fill the gap. Mindful it is fairly short notice I would be most grateful if you could provide me with a position please as soon as possible on the matter within the same window and bookings using the NPAS standardised instructors from our pool.”

[109]We note that the wording of this email appears to be more neutral than Captain Barlow’s previous email to Captain Springford regarding the availability of Babcock’s instructors. However, it suggested a very short timeframe for training to take place. Captain Barlow discussed this email during the 31 October 2023 capability hearing. The minutes of that meeting state that NPAS had already booked the simulator for those dates so that Captain Vince could train the claimant. Captain Barlow stated that he was aware that availability for the simulator was limited during the Christmas period.

[110]Captain Springford responded stating: “The ATO position remains unchanged in respect of training with Captain HadleyClarke.”

[111]Captain Barlow asked if Babcock’s position related to refresher training only, as opposed to testing for an OPC or a PC. Captain Springford replied stating that they had no personnel available on those dates and that the claimant’s training should be conducted by NPAS in the interests of continuity by current NPAS operating training instructors.

[112]Captain Springford responded stating: “We’ve not been asked to provide training before but our position remains the same. His training should be conducted NPAS in the interest of continuity and in order to provide him with the best possible service by current NPAS operating TRI. Regardless, we have no personnel available on the days in question.”

[113]We concluded that Captain Springford’s response refusing to train the claimant was influenced materially by Captain Barlow’s email exchange with Captain Springford in January 2022. We were not provided with any evidence to suggest that Captain Barlow sought to discuss Captain Springford’s decision, with a view to obtaining training support for the claimant at any time after the email exchange in December 2022. NPAS risk and safety review – January 2023

[114]Ms Charlotte Powell (NPAS’ Employee Relations adviser) asked Mr Cunningham in his role as NPAS’ Head of Safety to carry out an independent risk assessment to review the considerations regarding the claimant’s checks and re-qualification process in late December 2022 or early January 2023. Mr Cunningham produced a report on or around 11 January 2023. Chief Superintendent White then asked Mr Cunningham to provide advice and a recommendation in order to assist with the capability process, which he provided on or around 6 February 2023. Captain Watts confirmed in the August 2023 capability hearing that he was not aware of Mr Cunningham’s report at that time but was aware of it before the August 2023 hearing.

[115]Chief Superintendent White stated in her evidence that: “The Head of Safety is independent and provides me and others within organisation with assessments around our risks including with the CAA and any changes to those risks. The review goes through type of risks having the claimant flying with us – around competency, pressure on other people involved in process as well as reputational damage if anything happened in future. He gives scores for the risks and details of those scores – it’s then for me to determine whether I am happy to accept level of risk or not, as well as other factors such as finances. It was a big part of my decision-making.”

[116]The risks that Mr Cunningham referred to in the assessment included:116.1 pressure on assessors to pass the claimant;

116.2 pressure on Captain Barlow (as Head of Training) and on Captain Watts (as Head of Flight Operations) to suggest and/or agree to solutions to the claimant’s training and examination difficulties that undermine their judgment;

116.3 the risk of post-incident reputational damage if the claimant were involved in an air accident and it came to light that exemptions or exceptions to NPAS’ normal training and assessment process had been made for him.

[117]The claimant and Captain Booth accepted that Mr Cunningham and Chief Superintendent White were responsible for assessing, managing and mitigating health and safety risk within NPAS. Captain Booth accepted in his evidence that the risks set out in Mr Cunningham’s report existed. However, Captain Booth questioned the significance of these risks and noted that NPAS uses other external examiners. For example, Captain Booth stated in relation to any pressure on examiners: “…this comes down to professionalism. If you use an experienced and professional examiner, that pressure is not there.”

[118]Captain Booth also noted that in the past NPAS had been short of examiners and stated that additional examiners would benefit NPAS as a whole, rather than just the claimant.

[119]We note that Captain Spicer stated that Mr Cunningham had raised a formal complaint against the claimant in relation to the claimant’s base inspections and that Mr Cunningham had wished to become Unison’s Health and Safety representative. The claimant’s witness statement suggested Mr Cunningham was unfairly biased against him. However, the claimant did not cross-examine any of the respondent’s witnesses regarding this allegation. We note that the claimant’s health and safety inspections of any bases (or the refusal of those inspections) was not cited by the claimant as a trade union activity that led to any detriments against him. Second capability process – January 2023

[120]Captain Watts decided to re-start the capability process in January 2023. He held an informal meeting with the claimant, the claimant’s union representative (Ms Natalie Ratcliffe, Regional Organiser at Unison) and Ms Powell (Employee Relations adviser) on 9 January 2023. Captain Watts explained that they had previously arranged for Captain Vince to undertake the claimant’s training in the simulator and that the CAA had granted an exceptional dispensation for Captain Roberts to undertake the claimant’s OPC in the aircraft over Christmas and the New Year. However, Captain Vince failed to achieve the qualifications required for the Deputy Head of Training role and was removed from that post during his probationary period in the role, although he remained a pilot for NPAS.

[121]Captain Watts informed the claimant that the only option was to proceed to the Capability Process. He explained that normally there would be a three stage process, however the process would start at stage three. Captain Watts explained that this was because there were no performance issues, which could be improved with an action plan. Ms Powell stated that the reason for the capability process was that the claimant did not have the necessary qualification to undertake his role as a line pilot for NPAS.

[122]Ms Ratcliffe is minuted as stating at the meeting: “Absolutely no point in pursuing this or discussing further, Head of Training has made up his mind, we believe is blocking opportunities to resolve the situation because of Stewart’s trade union duties, it’s well documented this is bullying by the training department, James Booth has offered to put statements forward. This will absolutely be an unfair dismissal if Stewart is dismissed, it is a very clear case of bullying.”

[123]NPAS wrote to the claimant on 9 February 2023, arranging the claimant’s stage 3 capability hearing for 29 March 2023, to be chaired by Assistant Chief Constable Riley (“ACC Riley”) from West Yorkshire Police. The claimant was told that he had the right to be accompanied to the meeting. The meeting was later rescheduled to 28 April 2023. The letter stated that there were a range of possible outcomes from the hearing including: 1.1. “Dismissal if there is no reasonable prospect of alternative employment; 1.2. Set a FWIN with an appropriate timescale if the facts indicate that all reasonable steps have not been taken; or 1.3. Determine that no further action will be taken.”

[124]The claimant was provided with a copy of NPAS’ case file in advance of the hearing. The information in the case file included:124.1 Details of alternative options considered costings and correspondence;

124.2 NPAS’ risk and safety review;

124.3 A summary of the previous capability discussions in September 2022 and January 2023;

124.4 Operational manuals and associated documents; and

124.5 the respondent’s capability policy.

[125]The claimant provided his submission document for the hearing.

[126]ACC Riley emailed the claimant and NPAS attendees on 23 April 2023, stating that the claimant’s capability hearing would not go ahead. Instead, she adjourned the hearing and sought advice on what she (as the Chair of the capability hearing) had authority to direct, given that the NPAS governance structure was based on regulations and legal requirements held by the various post-holders. ACC Riley also sought clarity on the Accountable Manager’s position on Mr Cunningham’s risk and safety review and on the options set out in the claimant’s submission.

[127]In the meantime, the claimant received the outcome of his grievance in July 2023 and appealed against the grievance outcome on 27 July 2023. Capability hearing – August 2023

[128]The respondent wrote to the claimant on 12 July 2023, rescheduling the stage 3 capability hearing for 23 August 2023 and setting out the same potential outcomes as the 9 February 2023 letter. ACC Sarah Baker was due to chair the hearing, due to ACC Riley’s retirement. The hearing was attended by the claimant, Ms Ratcliffe (Unison Regional Organiser), Captain Watts and a HR representative. Captain Watts also attended the hearing to summarise the details of the case.

[129]The claimant received a copy of NPAS’ case file in advance of the hearing. The information in the case file included the information previously provided to him, with additional information on alternative options considered, costings and correspondence. The claimant again provided a submission for the hearing.

[130]The hearing on 23 August 2023 lasted several hours and generated nearly ninety pages of notes which were provided to us in the hearing file. ACC Baker explained that the hearing was a formal Stage 3 capability hearing, being held because the claimant was unable to fulfil his role as a National Line Pilot because he was not suitably qualified for the requirements of his role. ACC Baker explained her role and said that she had been advised that she could not alter the Accountable Manager’s decisions around risk or cost. The claimant and Ms Ratcliffe discussed this at length and raised concerns regarding the process. Ms Ratcliffe stated that she was concerned that the process could be a ’foregone conclusion’. ACC Baker clarified that she could raise questions and challenges with Chief Superintend White as the Accountable Manager regarding the decisions that she made.

[131]Captain Watts presented NPAS’ case at the capability hearing. He explained during the hearing that training and examining is one of the high risk areas of aviation. He stated that much of training is around how a pilot deals with an emergency situation. He stated: “So to simulate that in the aircraft and you’ve gotta put the aircraft into an unsafe situation and so, and if the, if the person under training then gets it wrong it’s up to the Examiner to recover that situation. So the aircraft’s already in an unusual situation and I was an Instructor and Examiner for 10 years and in fact I’ve been involved in the only accident in NPAS that was a Trainer accident…so I know how quickly things can go wrong so it is a, it’s a pressurised environment and you’d want to avoid any other distractions because that, that Instructor or Examiner needs to be totally focussed on the job in hand.”

[132]The claimant noted that if training were carried out in a simulator, then no one would be at risk. Captain Watts noted that simulator risks were different, but also noted that not all training could be undertaken in the simulator. ACC Baker also raised this with Captain Barlow when the hearing was adjourned for lunch. Captain Barlow responded that: “Not all mandated legally required regulatory tests can be carried out in a fully synthetic simulator environment. Some aspects must be carried out in the live aircraft of the EC135. To that end the proficiency check must be carried out in the live aircraft with the OPC being able to be carried out in either or both”.

[133]The claimant raised multiple questions of Captain Watts. He also went through each of the internal and external examiners that he believed were an option to train and/or test him and the costs of any additional qualifications that he believed that each examiner would require in detail. The only new examiner on the claimant’s list was Chris Redfern, whom the claimant stated replaced Paddy Connolly following Mr Connolly’s retirement. ACC Baker noted that there was a discrepancy between the claimant’s position and NPAS’ position on various matters and that Captain Barlow would need answer certain questions.

[134]ACC Baker contacted Captain Barlow during the lunch adjournment and raised various questions with him by email, the responses to which she read out during the hearing. One of the questions that she asked was whether NPAS used external trainers and examiners. Captain Barlow replied: “By routine no, we do though utilise the services of CAA Flight Operations Inspector and for the EC145 utilise an Examiner outside of routine permanent staffing. The CAA are used as part of their oversight of our processes as a Training Examiner provider. This occurs a small handful of times per year in line with their own schedule. The EC145 is annually and forms part of a different training arrangement or agreement with that specific fleet type of helicopter and approval.”

[135]In relation to Merrick Forsyth, ACC Baker read out Captain Barlow’s email response: “’Merrick was used once in August 2022 but under the direction of Babcock Head of Training. NPAS had not approach Merrick and had no knowledge that he was scheduled for the test. Indeed he was substituted on the day of the original Examiner.’ So it sounds like for some reason there’s been a short notice swap. ‘Merrick had confirmed to NPAS and myself earlier in 2022 that he would not be offering his services to NPAS going forward due to his commitments in his other work.’”

[136]ACC Baker also read out other responses from Captain Barlow during the hearing.

[137]Ms Ratcliffe stated that Unison would take further legal advice on the claimant’s behalf: “Because we were trying to decide if it’s an employment matter or an aviation matter I’ll go to our lawyers as well and it’d be helpful if obviously you take advice and we can then see where we’re going because to be fair at the start of this we did take some legal advice and on the information at I had at that point they did. Our lawyer said it was an employment issue, not an aviation issue so but now we’re a lot further down the line…my intention is probably to go back [to the lawyer].”

[138]ACC Baker decided to adjourn the hearing so that she could obtain further information to the examiner options submitted by the claimant, including the current costings associated with each option. ACC Baker stated that refreshed options should be presented to Chief Superintendent White as the Accountable Manager for her review and that she would ask her to ensure all appropriate processes and options have been explored. These points were recorded in the letter rearranging the adjourned hearing to 31 October 2023. The reason for the additional delay was due to ACC Baker’s absence in the meantime and the need to arrange for Chief Superintendent White, Captain Watts, Captain Barlow and Mr Cunningham to be available during the reconvened hearing to answer any further questions on the day. Capability hearing – October 2023

[139]The hearing on 31 October 2023 took place over several hours and generated around sixty pages of hearing notes. The hearing was chaired by ACC Baker and attended by the claimant, Ms Ratcliffe (Unison Regional Organiser), Chief Superintendent White, Captain Barlow, Captain Watts and a HR representative.

[140]NPAS had previously prepared a document setting out the options that they had considered for the claimant in mid-2023, based on information provided by Captain Barlow to HR by email dated 22 June 2023. NPAS prepared an updated document setting out comments on each of the options proposed by the claimant dated 31 August 2023 after the 23 August 2023 capability hearing. This updated document was provided to the claimant as part of the case file before the hearing in October 2023 (the “Options Document”).

[141]The claimant prepared his own options document dated 27 October 2023. The claimant’s document set out a number of proposed plans, which were discussed in detail during the hearing. Claimant’s primary proposed plan

[142]The claimant’s primary proposed plan consisted of using a combination of the following individuals to train and test him:142.1 Glenn Blake (CAA Examiner): the claimant noted that this would require someone else to operate the simulator computer console because Mr Blake was unable to operate the simulator; and

142.2 Captain Roberts: whom the claimant stated had current examiner qualifications for EC135 aircraft and NVIS (but was not simulator trained). The claimant noted that Captain Roberts was originally happy to train the claimant, without a Tactical Flight Officer (“TFO”) present, but later stated that he wanted a TFO present following discussions with Captain Barlow.

[143]The claimant stated that there was no cost to NPAS for the examiners or the aircraft and that the only cost would be the hourly rate for the simulator (£552 per hour).

[144]NPAS stated in Options Document in relation to Glenn Blake: “Glenn Blake is not simulator qualified so cannot conduct the mandatory training or examination. This was confirmed by Phil Barlow on 29th September 2023. NPAS cannot proceed with this option as Glenn Blake is not simulator qualified – NPAS OMD 3.1.12.1 requires each alternate OPC is undertaken in the simulator and the Accountable Manager does not support the associated costs of him becoming qualified.”

[145]Chief Superintendent White also explained after a break in the hearing that NPAS were unable to use Mr Blake to conduct training or testing because of a conflict issue. She explained in her evidence to the Tribunal that Mr Blake was NPAS’ nominated flight inspector and was responsible for carrying out audits of NPAS’ base function and helicopters, including interviewing Chief Superintendent White as part of the audits. Chief Superintendent White noted that the decision regarding the conflict issue was taken by Mr Connolly (who was Mr Blake’s line manager at the CAA). In addition, Mr Blake had stated during previous discussions with NPAS in 2023 that he was too busy with other work.

[146]In relation to Captain Roberts, Chief Superintendent White explained that in Autumn 2022, she and Captain Watts took a decision during Captain Barlow’s absence on leave to offer that Captain Roberts (in conjunction with Captain Vince) could have trained and tested the claimant. Chief Superintendent White admitted that she and Captain Watts had made a mistake when making that offer because it was not their decision to make, but fell to Captain Barlow as Head of Training. However, Captain Vince was then removed from his role as Deputy Head of Training (as set out in our findings of fact above).

[147]In November 2021, Captain Barlow had previously referred to his concerns regarding using Captain Roberts in internal emails stating: “ Whilst I may be able to use Captain John Roberts from NPAS London in March, Captain Roberts is currently considering his future on the EC135 via myself and in any case this would only afford at best one more test. To be able to use Captain Roberts would require himself to abstract routinely from the London EC145 line output to regain his currency on the EC135 in time for a test. It would be unfair to place Captain Roberts in a test environment without first being current and competent on the EC135 type. A position which I will not allow in fairness to other pilots and also in light of our processes.”

[148]NPAS stated their position regarding Captain Roberts in the Options Document: “Capt. John Roberts is not a substantive member of the training team and is not qualified to train or examine in the simulator. To train and qualify him on the EC135 simulator is likely to take several months, at a cost of between £10,000 - £15,000, plus annual and tri-annual requalification, and would be purely to provide a bespoke trainer or examiner for Stewart. Capt. Roberts would not be able to conduct both the training and examination elements of the OPC and therefore another TRE or TRI would be required, and in the event of a fail, there would be no other TRE/TRI who could conduct the retest. Nor could Capt. Roberts conduct all future OPC/PCs for Stewart. Capt. Roberts has also stated that due to the experiences of other NPAS trainers, he would wish to have a police TFO present to witness briefings and training. This is entirely outside of normal practice and puts pressure on both examiner and student which is not conducive to safe aviation. This would set a dangerous precedent to others by using a bespoke solution, which only resolves the issue short term, nor is there an operational requirement for an additional sim TRE/TRI within the organisation. Additionally, this external simulator training will remove him from ‘business as usual’ training which will impact the department’s ability to deliver and meet its obligations in keeping other pilots trained and qualified. Taking all the above into consideration, the Head of Training does not support this option, nor does the Accountable Manager approve the associated costs.”

[149]Captain Barlow explained during the hearing that if Captain Roberts were to be trained to operate a simulator as both a training instructor and as an examiner, he would have to undertake a specific course. Captain Barlow noted that the timings of that course would be dictated by a third party contractor. He explained that Captain Roberts’ attendance on a course would involve him not being available to carry out his other training duties, which would have a knock on impact on the timing of other pilots’ checks. Captain Barlow also explained that due to changes associated with the UK leaving the European Union, there is only one simulator provider in the UK regulated to CAA level (i.e. Babcock International). Captain Barlow said that where, as with Captain Roberts, you have an examiner who has not previously been simulator trained, the duration (and therefore the cost) of the course depends on the provider’s Head of Training’s view of the individual’s training log book and training history.

[150]Captain Barlow explained later in the hearing that he had applied to the CAA for a one-off exemption for the claimant to undertake the OPC in a live aircraft in April 2022, in order to enable the claimant to continue flying for a further six months. Captain Barlow stated that the CAA were very clear that this was a one-off exemption only and that the next OPC should be carried out in the simulator.

[151]In relation to the NVIS (night vision goggles) requirement, Captain Watts attended the hearing and explained that he required everyone in a crew to be trained to support the operational deployment of pilots in areas with little visibility (such as mountains and moors) and for carrying out some tasks in certain weather conditions. Captain Watts also noted that the use of NVIS is one of NPAS’ safety mitigation factors in its Risk Register. Claimant’s secondary proposed plan

[152]The claimant’s secondary proposed plan was to use an external freelance examiner. The claimant suggested freelance examiners: Merrick Forsyth, Dave Burgess, Al Scott and Anthony Stevens. He also suggested Chris Redfern (CAA Inspector/Examiner).

[153]NPAS stated in the Options Document in relation to Chris Redfern “Chris Redfern has not flown for NPAS and does not hold an NPAS OPC so would require induction, training, and standardisation with NPAS being liable for the associated costs. NPAS cannot proceed with this option because he is not qualified to undertake Stewart’s OPC in the simulator (CAA Standards Document 14 3.4) and the Accountable Manager does not support the associated costs of him becoming qualified.”

[154]Captain Barlow confirmed during the hearing that the same conflict issues applied to Mr Redfern, as they did to Mr Blake.

[155]Captain Barlow confirmed that none of the four freelancers listed by the claimant held a current EC135 Operator Proficiency Check. Captain Barlow stated that an EC135 Examiner might be capable of conducting a Proficiency Check for the CAA or on behalf of the CAA. However, he stated that as set out in NPAS’ Operating Manual, an examiner also needed to hold a current Operator Proficiency Check for NPAS. Captain Barlow explained that to become an OPC qualified instructor and examiner, you have to complete NPAS’ standard induction. The reason for this is that examiners working for NPAS as an Approved Training Organisation have to be ‘standardised’ (i.e. meet NPAS’ internal standards) when they start work for NPAS, are then reviewed after six months and thereafter reviewed annually. Captain Barlow also stated that the CAA requires NPAS to nominate his list of potential examiners in advance and that the individuals listed by NPAS may not hold current qualifications at the time that any training or examining is needed.

[156]The claimant queried why an experienced examiner who had previously carried out NPAS tests would need to undertake a full four week induction. Captain Barlow explained that the Operators Manual applies to all individuals, irrespective of background and qualification. Captain Barlow explained that NPAS’ approved syllabus is a four week induction training period, approved by the CAA, regardless of whether the individual is a line pilot, instructor or examiner. He stated that NPAS’ specific training (such as aircrew first aid training) may differ from other operators’ specific training.

[157]The claimant also questioned whether the requirement to complete a four week induction had been enforced in the past. Captain Barlow stated that the requirement was in place when he became Head of Training (having previously worked for NPAS as a Training Captain). He said that he did not know how strictly the previous Heads of Training enforced the rules. Captain Barlow stated that he now has annual audits with the CAA and monthly meetings with Mr Blake (in his role as Flight Operations Inspector) and that he had to ensure that every element of the induction training is completed. Captain Barlow explained that he underwent the same process when he used to cover for Police Services Northern Ireland. Captain Barlow also explained that there may be differences in training attributes and avionics (i.e. instruments) between operators’ aircraft, such as a partial electronic cockpit versus a full electronic cockpit.

[158]Chief Superintendent White noted that even if NPAS trained up freelancers, they may not in fact be available to conduct tests for NPAS when required. Captain Barlow explained that there was a lot of administration involved in allocating individuals for tests, because the Senior Pilot and Base Manager needed to backfill the shifts for the pilot being tested. Captain Barlow said that if he was reliant on a freelancer to undertake a test, they could ‘pull the rug at any point’.

[159]Also in relation to Mr Forsyth, we accept Chief Superintendent White’s evidence that there were confidential issues that meant that NPAS chose not to engage him in freelance work after September 2022 which were referred to in the capability hearing. Captain Barlow explained that just because Mr Forsyth continued to be named on the Operations Manual Part D list until October 2022, it did not mean he had current qualifications to instruct and/or examine. He referred back to the examiners information that NPAS had to provide to CAA for administrative purposes.

[160]Further in relation to Mr Stevens, we note that he was providing training for NPAS as at Summer 2023. However, the training provided by Mr Stevens related to EC145 helicopters used by NPAS’ London pilots and that Mr Stevens’ NPAS OPC related to this type of helicopter only. The claimant flew EC135 helicopters, a different type of helicopter with different CAA training requirements. Claimant’s alternative proposed plan

[161]The claimant said that he had provisionally booked an external provider to conduct his Proficiency Check, including simulator training. The claimant stated that he would then only need to undergo an Operator Proficiency Check, which he stated Captain Roberts or Mr Blake could provide.

[162]Captain Barlow noted that the claimant had not confirmed which external provider and which simulator would be used, noting that a renewal (following expiry) would be different to a revalidation of a current Proficiency Check. In any event, Captain Barlow noted that this would negate the need for the claimant to obtain an Operator Proficiency Check in order to continue flying with NPAS. Claimant’s final alternative proposed plan

[163]The claimant said that as an alternative, NPAS could explain that Captain Barlow’s email dated 17 January 2022 was a mistake and could ask Babcock to re-consider flying with him again.

[164]Captain Barlow stated in relation to Babcock that:164.1 NPAS do not use Babcock and have not used them for a considerable period of time;

164.2 Babcock have no contractual obligation to provide any instructor or examiner to NPAS;

164.3 there are repeated costs for NPAS if NPAS use external examiners;

164.4 NPAS did try to have a small pool of standardised Instructor/Examiners at Babcock. However, Babcock’s turnover of staff is high and their employees might only carry out one test each year, which leads to the risk that they will not produce a test to the standard required by NPAS. Deputy Head of Training role

[165]The claimant suggested during the Tribunal hearing that NPAS had deliberately waited to re-advertise the Deputy Head of Training role (to which Captain Vince had been briefly appointed, until he failed to obtain the necessary training qualifications) until two days after his appeal against his dismissal was rejected. We note that Captain Barlow explained NPAS’ position in his email dated 23 August 2023 responding to ACC Baker’s questions raised during the lunch break in the hearing what the current position was regarding the Deputy Head of Training role. He stated that: “We advertised and tried to recruit into the role last year but the appointment failed to work out as we had hoped and as required by Regulation. Therefore this has prompted the need for this role to be reviewed which is underway. The Deputy Head of Training (D/HoT) role is not mandated or required to be specific for rotary. As an operator of both rotary and fixed wing aircraft I must ensure that I have sufficient instructional and examining resources for both fleets. In view of this the Operator in conjunction with myself as HoT is currently determining what background and essential requirements this role profile postholder must hold. That could be either a purely specific rotary training captain, purely aeroplane training captain or a combined qualification postholder, this also includes whether the applicant is required to be an examiner at appointment or can be trained up to achieve that qualification whilst in post. With regards to timescales I am expecting the role profile to be processed within the next 4 months as it requires HAY evaluation following the internal review and consultation with partners. To provide additional context the role of D/HoT whilst listed in the Operations Manual is not a role that requires it to be filled immediately or urgently. The role has been vacant since before I took up my position as HoT.” Suggested external examiners and costings

[166]The claimant has alleged as part of his detriment complaints that Captain Barlow fabricated the costings set out in the emails dated 25 and 26 August 2022 and on a further email dated prior to 7 October 2022. We note that the claimant and Captain Booth challenged the costings provided by Captain Barlow in relation to examiners during the capability proceedings.

[167]We have already referred to Captain Barlow’s emails dated 25 August 2022 stated and 26 August 2022 earlier in this judgment. We note that the claimant and Captain Booth both questioned the figures set out in those emails. However, both emails contain detailed breakdowns of the costs that Captain Barlow estimated for obtaining external examiners for the claimant based outside of the UK (25 August 2022) and based in the UK (26 August 2022). The claimant did not confirm the date of the other email sent between 26 August 2022 and 7 October 2022 that he maintained contained fabricated costings and we were unable to locate that email in the hearing file.

[168]We accept that the claimant and Captain Booth raised legitimate questions regarding the calculation of the costs provided by Captain Barlow. However, we do not accept that this means that Captain Barlow had ‘fabricated’ the costs set out in his emails dated 25 and 26 August 2022. Both emails contained detailed breakdowns and explanations of the costs estimated. We note that in relation to the UK based external examiners, the majority of the challenges raised by the claimant related to the length of the induction process required to be undertaken by the external examiners. We note that Captain Barlow responded to questions on this issue during the 31 October 2023 capability hearing (as set out in earlier in this Judgment).

[169]Captain Booth gave evidence during this hearing that the cost of grounding the claimant (i.e. removing him from flying duties) from September 2022 to January 2024 was far in excess of the cost of obtaining an external trainer/examiner. We accept that this is likely to have been the case, certainly in respect of the UK based freelance examiners suggested by the claimant. The claimant’s annual salary (ignoring any pension or other benefits) was around £75,000 per annum at the time. In addition, NPAS paid freelance pilots to cover shifts that the claimant could otherwise have worked.

[170]The Tribunal asked Chief Superintendent White whether she had considered this point during her evidence. Chief Superintendent White stated that this issue had not been considered, but that NPAS never envisaged that the capability process would last so long. She noted that there were several delays to the process, including the initial halting of the process in October 2022, later changes in hearing chairs, adjournments and other delays. She stated that NPAS did not require additional examiners for any other pilots and the costs would not be a one-off: “It would also be training people that as an organisation that we didn’t require – we didn’t require an additional examiner – and it still does not move away from fact that having one examiner not enough. The CAA Regulations state that it can be the same examiner but our OMD (agreed with the CAA) sets the bar higher than that. The reason is that if you fly for Easyjet, you fly from Leeds/Bradford to Brussels and back. Police flying is dynamic, very high risk – we set the bar higher than the CAA Regulations. Training an examiner – we would need at least two – we would always be subject to their availability – we could train a freelancer, but they might not be available when we needed them every 6 months.” ACC Baker’s decision

[171]ACC Baker adjourned the hearing to consider her decision. When the hearing reconvened, ACC Baker explained her decision that:171.1 it was agree that the claimant did not hold the required qualifications for his role; and

171.2 NPAS had taken reasonable steps to train and test the claimant to obtain the required qualifications. ACC Baker concluded that NPAS had explored options and responded to the claimant’s numerous options and alternatives presented. ACC Baker stated that NPAS had been unable to source training or examination provision at a reasonable cost in terms of both finance and time and opportunity. She also noted that external training for a prolonged period of time for one pilot creates safety concerns, against the backdrop of CAA Regulation.

171.3 she acknowledged the concerns raised by the claimant regarding barriers to training and stated that temporary solutions had been sought to enable the claimant to continue flying, but there was no final resolution available;

171.4 she considered alternatives, including a Formal Written Improvement Notice, however concluded this would not achieve anything further.

[172]There was a discussion about whether the claimant wished to apply for other roles within the respondent and he confirmed that he did wish to do so. ACC Baker confirmed that the claimant would first have a period of six weeks to apply for vacant roles within the respondent before dismissal was considered. This period extended to nine weeks because of the Christmas holidays.

[173]ACC Baker’s decision was set out in writing to the claimant in a letter dated 3 November 2023. Her decision detailed the reasons why the claimant’s proposed plans for training and examining were rejected. Capability hearings - 4 and 18 January 2024

[174]The claimant’s Stage 3 capability hearing was reconvened on 4 January 2024. ACC Baker chaired the hearing, attended by the claimant and his union representative (Ms Margaret Yemm), Captain Watts and a HR representative.

[175]ACC Baker noted that the hearing had been rescheduled from 15 December 2023, due to the claimant’s union representative’s availability. ACC Baker stated that she understood that the claimant had secured external employment, but that this was subsequently withdrawn and that he then applied for roles with the respondent police force. The claimant clarified that he had applied for four roles within the respondent’s police force shortly before the hearing, but that the salary would be less than 50% of his current salary and that he would need to relocate to the Yorkshire area.

[176]There was also a discussion of various points during the hearing, including the claimant’s submission on contractual requirements around training. The claimant also queried why NPAS were advertising vacancies, believing that one of the vacancies might include the claimant’s post. Captain Watts clarified that there were eight vacancies across NPAS and that a line pilot resigned during the last two weeks.

[177]ACC Baker decided to adjourn the hearing to enable the recruitment process around the claimant’s preferred vacancies of the Vehicle Preparation Manager and Crime Data Integrity Inspection Officer to complete. ACC Baker confirmed the points discussed in a letter dated 9 January 2024, which confirmed that the hearing would be reconvened on 18 January 2024.

[178]The hearing reconvened on 18 January 2024. The claimant confirmed that he had decided not to be accompanied by his union representative and was happy to continue in her absence.

[179]The claimant confirmed that he had to withdraw from the Vehicle Manager role for personal reasons, due to the location of the role. He said that he had not passed the paper sift stage for the Crime Data Integrity Inspection officer role.

[180]ACC Baker confirmed that the claimant would be dismissed with immediate effect and would be paid three months’ pay in lieu of notice. ACC Baker also informed the claimant of his right to appeal the decision within 28 days.

[181]At the conclusion of the meeting, the claimant asked for a copy of the recordings of the meetings, stating that his solicitor had requested them. HR confirmed that the claimant would be provided with minutes of the meeting, rather than recordings.

[182]The claimant’s dismissal was confirmed by letter dated 22 January 2024, along with his right of appeal. Claimant’s appeal against dismissal – April 2024

[183]The claimant submitted an appeal against the decision dated 16 November 2023, revised after the capability hearing on 18 January 2024.

[184]Deputy Chief Constable Osman Khan (“DCC Khan”) was appointed to hear the claimant’s appeal. The hearing was arranged for 28 March 2024 and the claimant was informed of his right to be accompanied to the meeting. The hearing was reconvened on 16 April 2024 and the outcome of the appeal was recorded in writing dated 17 April 2024.

[185]DCC Khan explained that his role was to review ACC Baker’s decision to dismiss the claimant, not to re-hear the capability proceedings. DCC Khan considered the points raised by the claimant in his appeal and responded as follows:185.1 DCC Khan was satisfied that ACC Baker gave due consideration to the information presented and the claimant had not provided any further information during the appeal that suggested otherwise;

185.2 ACC Baker was clear on her role as chair, i.e. to determine what the lack of qualifications had on the claimant’s ability to undertake his role, what steps could be taken to achieve that qualification and whether this should impact the claimant’s employment with the respondent;

185.3 ACC Baker had no authority to direct how training/testing is delivered, however she ensured that a range of options had been explored and that the Accountable Manager provided a full rationale as to why these were not supported;

185.4 there was no additional evidence to suggest that the claimant was contractually entitled to training and testing by NPAS;

185.5 ACC Baker considered the refreshed options set out in NPAS’ document dated 31 August 2023 along with the Accountable Manager’s response, both of which were disclosed to the claimant before the October 2023 hearing;

185.6 the claimant had since been provided with recordings of the capability hearings, however he had not identified any inaccuracies in the minutes. Claimant’s evidence regarding time limits (detriments complaints)

[186]The Tribunal asked the claimant supplementary questions regarding time limit issues, with the respondent’s consent. The respondent had the opportunity to cross-examine the claimant on his supplementary evidence. We note that:186.1 the claimant was a Unison trade union representative at the time of his dismissal, having been appointed in around 2019;

186.2 the claimant stated that he was taught how to assist union members with workplace issues and had not been trained on Employment Tribunal proceedings. He said that his role was primarily health and safety;

186.3 the claimant was represented during the capability proceedings by Unison until the hearing on 18 January 2024, including at various stages by Ms Ratcliffe (Regional Organiser);

186.4 the claimant first discussed the bringing an Employment Tribunal claim with Unison in the lead up to the first capability hearing in September 2022. The claimant also spoke to ACAS at times, but did not lodge his formal early claim conciliation request until 1 March 2024;

186.5 the claimant said that he was aware that the time limit for claims was three months less a day. However, he stated that he was advised by Unison (having consulted with Thompsons solicitors) that his dismissal would trigger the time limit for bringing his claim, including any detriment complaints which they advised would form a series of linked events;

186.6 the capability hearing notes from January 2023 onwards contain a number of references to Unison seeking legal advice for the claimant (see earlier in this Judgment);

186.7 ACC Baker stated clearly at the conclusion of the capability hearing on 31 October 2023 that the claimant would be dismissed, unless he successfully applied for an alternative role within the respondent. The claimant did not provide any evidence of any particular reason why he did not contact ACAS to start early claim conciliation until 1 March 2024. He stated that he contacted ACAS on 1 March 2024, because he was dismissed on 18 January 2024 and was aware that he had to contact ACAS within a three month timeframe.

[187]We also note that Captain Mitchell Spicer (who attended this hearing as a witness for the claimant) was also a Unison trade union representative. Captain Spicer gave evidence that he was aware of the general time limit for bringing Employment Tribunal claims, having been informed by Unison as part of his training that it is normally three months less a day.

RELEVANT LAW

[188]The Tribunal has considered the legislation and caselaw referred to below, together with any additional legal principles referred to in the parties’ submissions. Detriment complaints – time limits

[189]S48 of the Employment Rights Act 1996 (“ERA”) sets out the time limit provisions for protected disclosure detriments complaints: (3) An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4)For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer… shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

[190]Paragraph 157 of Schedule A1 Part VIII of Trade Union and Labour Relations (Consolidation) Act 1992 ( “TULRCA”) sets out similar time limit provisions for trade union detriments complaints: 157(1) An employment tribunal shall not consider a complaint under paragraph 156 unless it is presented— (a)before the end of the period of 3 months starting with the date of the act or failure to which the complaint relates or, if that act or failure is part of a series of similar acts or failures (or both), the last of them, or (b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable. (2) For the purposes of sub-paragraph (1)—(a) where an act extends over a period, the reference to the date of the act is a reference to the last day of that period;

(b) a failure to act shall be treated as done when it was decided on. (3) For the purposes of sub-paragraph (2), in the absence of evidence establishing the contrary an employer must be taken to decide on a failure to act— (a) when he does an act inconsistent with doing the failed act, or (b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

[191]The Tribunal must therefore consider two questions:191.1 Was it reasonably practicable for the claimant to present the detriment complaints in time?

191.2 If not, within what further period does the Tribunal consider it reasonable for the claim to have been presented?

[192]The key rules that apply when the Tribunal considers this test include:192.1 the Court of Appeal in Palmer v Southend-on-Sea Borough Council

[1984] ICR 372

that ‘reasonably practicable’ does not mean ‘reasonable’. Instead, the Court of Appeal stated that it means ‘reasonably feasible’

192.2 the EAT provided further guidance in Asda Stores Ltd v Kauser EAT 0165/07 when Lady Smith held that: “the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done”

192.3 the onus of proving that it was not reasonably practicable to present the claim in time rests on the claimant (Porter v Bandridge Ltd [1978] IRC 943 CA);

192.4 if an individual relies on skilled advisers (such as solicitors or union representatives), then ignorance of time limits does not render it not reasonably practicable to present a claim in time, unless he or his advisers could not reasonably be expected to have been aware of them (Walls Meat Co Ltd v Khan

[1978] IRLR 499

at paragraph 15). Series of acts

[193]Section 48(4) Employment Rights Act 1996 and section 157 Trade Union and Labour Relations (Consolidation) Act 1992 provide that:193.1 a deliberate failure is deemed to occur at the time when the person decides on the failure, and an employer is taken to decide on the failure when he does an act inconsistent with doing the failed act; or

193.2 when the period expires within which he might reasonably have been expected to do the failed act.

[194]There is a distinction between a continuing act and a one-off occurrence which merely has continuing effects. By way of example, contrasting two whistleblowing cases:194.1 in Tait v Redcar and Cleveland Borough Council

UKEAT/0096/08

, a disciplinary suspension was held to be an act extending over a period so that the last date on which the act of suspension was deemed to take place was the date on which the employee received notification that the suspension had ceased and the time limit ran from that date.

194.2 in Ikejiaku v British Institute of Technology

UKEAT/0243/19

(7 May 2020 ,unreported) the EAT held that a forced change in contractual terms to make the claimant self-employed was a single act by the employer, albeit with continuing effects, so that the time limit flowed from the date of the change and the claim was out of time.

[195]In the absence of evidence to the contrary the employer may be deemed to have decided to refrain from doing a particular act when he did something inconsistent with it. If the employer did nothing at all, he may be deemed to have decided to refrain from doing a particular act at the end of that period within which he might reasonably have been expected to do it if he was ever going to do it.

[196]In Arthur v London Eastern Railway

[2006] EWCA Civ 1358

[2007] IRLR 58

the Court of Appeal stated that these provisions were designed to cover a case which cannot be characterised as an act extending over a period (by reference to a connecting rule, practice, scheme or policy) but where there is some link between the acts which makes it just and reasonable for them to be treated as in time and for the claimant to be able to rely on them. The Court of Appeal suggest that the Tribunal should consider matters including:196.1 the circumstances surrounding the acts;

196.2 whether were they all committed by fellow employees;

196.3 if not, what connection, if any, was there between the alleged perpetrators;

196.4 were their actions organised or concerted in some way;

196.5 why did they do what is alleged;

196.6 it is not necessary that the acts alleged to be part of the series are physically similar to each other

196.7 it may be that a series of apparently disparate acts could be shown to be part of a series or to be similar to one another in a relevant way by reason simply of them all being on the ground of a protected disclosure. Detriment complaints – general

[197]The test of whether an act or omission could amount to a ‘detriment’ is the same as for a discrimination complaint. The House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

held that whether an act amounts to a detriment requires the Tribunal to consider:197.1 would a reasonable worker take the view that he was disadvantaged in terms of the circumstances in which he had to work by reason of the act or acts complained of?

197.2 if so, was the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?

[198]We note that the Court of Appeal in Deer v University of Oxford

[2015] IRLR 481

, held the conduct of internal procedures can amount to a ‘detriment’ even if proper conduct would not have altered the outcome.

[199]However, the House of Lords in Shamoon also approved the decision in Barclays Bank plc v Kapur & others (No.2)

[1995] IRLR 87

that an unjustified sense of grievance cannot amount to a ‘detriment’. Qualifying disclosures

[200]A protected disclosure is defined by s43A ERA as a ‘qualifying disclosure’ under s43B ERA: 43B Disclosures qualifying for protection (1) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

[201]S47B of the ERA sets out a worker’s right not to be subjected to a detriment on the ground that they have made a protected disclosure. 47B Protected disclosures(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. …

(2) …this section does not apply where – … (b) the detriment in question amounts to dismissal… ….

[202]The Court of Appeal in Kilraine v London Borough of Wandsworth

[2018] IRLR 846

, held that a disclosure must contain sufficient information if it is to form a ‘qualifying disclosure’ for the purposes of s43B of the ERA.

[203]The individual must also reasonably believe that the disclosure tends to show one or more of the categories set out under s43B(1). The Tribunal must consider:203.1 whether the claimant genuinely believed that the disclosure tended to show one of the categories listed in s43B (Darnton v University of Surrey

[2003] IRLR 133

); and

203.2 whether such belief was objectively reasonable in the circumstances (see, for example, Phoenix House Ltd v Stockman

[2017] ICR 84

EAT).

[204]The term ‘likely’ (e.g. in ‘likely to fail to comply with a legal obligation’) was considered in Kraus v Penna Plc

[2004] IRLR 260

to mean ‘probable or more probable than not’. The Court of Appeal held that this was a higher standard than simply ‘a possibility or a risk’. Reason for the detriment – protected disclosure

[205]The key question in protected disclosure detriment cases is whether the making of a protected disclosure materially influenced (in the sense of being more than a trivial influence) the employer’s treatment of the individual (Fecitt v NHS Manchester

[2012] IRLR 64

). This requires the Tribunal to consider the mental processes (conscious and unconscious) of the person who either acted or deliberately failed to act in respect of the detriment.

[206]In some cases, the courts have drawn a distinction between the making of a disclosure and the manner in which the complaint was made or pursued. For example, in Panayiotou v Chief Constable of Hampshire Police

[2014] IRLR 500

, the EAT upheld a decision by a tribunal that a police officer's dismissal was because of his long-term sickness absence and his obsessive pursuit of complaints. The EAT said that his dismissal 'in no sense whatsoever' connected with the public interest disclosures that he had certainly made earlier. The judgment of Lewis J stresses that such a finding is entirely logical and is not confined to 'exceptional cases': ''There is, in principle, a distinction between the disclosure of information and the manner or way in which the information is disclosed. An example would be the disclosing of information by using racist or otherwise abusive language. Depending on the circumstances, it may be permissible to distinguish between the disclosure of the information and the manner or way in which it was disclosed. An employer may be able to say that the fact that the employee disclosed particular information played no part in a decision to subject the employee to the detriment but the offensive or abusive way in which the employee conveyed the information was considered to be unacceptable. Similarly, it is also possible, depending on the circumstances, for a distinction to be drawn between the disclosure of the information and the steps taken by the employee in relation to the information disclosed.'' Burden of proof and drawing of inferences – detriment claims

[207]In International Petroleum Ltd and others v Ospiov and others EAT 0058/17, the EAT set out the correct approach to whistleblowing detriment complaints as follows:207.1 the burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he is subject his protected disclosure;

207.2 s48(2) ERA then requires the employer to show why the detrimental treatment was done. If the employer fails to do so, inferences may be drawn against the employer. However, these inferences must be justified by the Tribunal’s findings of fact. Trade union activities - detriment

[208]The legislation relating to trade union detriments is set out at s146 of the Trade Union and Labour Relations (Consolidation) Act 1992. 146 on grounds related to union membership or activities. (1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of— … (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, … 5(A) This section does not apply where – (a) the worker is an employee; and (b) the detriment in question amounts to a dismissal. Reason for the detriment – trade union activities

[209]The key question when considering the reason for a detriment in a trade union activity context is different to that in a whistleblowing detriment complaint. This is because the trade union detriment legislation involves a determination that the detriment was done for the sole or main purpose of:209.1 Preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time; and/or

209.2 Penalising him from doing so. Unfair dismissal Automatically unfair dismissal

[210]If the reason or principal reason for dismissal is an automatically unfair reason set out in Part X of the Employment Rights Act 1996 (the “ERA”), then the Tribunal must find that the claimant was unfairly dismissed. The relevant provisions of the ERA relating to protected disclosure related dismissals are set out below: s103A Protected disclosure. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[211]There are similar provisions that apply to dismissals on grounds related to trade union activities under s152 of the Trade Union and Labour Relations (Consolidation) Act 1992, as set out below: s152 Dismissal on grounds related to union membership or activities.(1) For the purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee— … (b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time …

(2) In subsection “an appropriate time” means— … (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union … Reason for dismissal

[212]S98 of the ERA sets out a list of potentially fair reasons for dismissal for employees who have two years’ service or more. This includes at s98(2)(a) a reason which: “(a) relates to the capability or qualifications of the employee for performing the work of the kind which he was employed by the employer to do.”

[213]Subsection (3) clarifies the meaning of qualifications as follows: “(b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.”

[214]The statutory definition of qualifications not only covers certificates of qualification that can be taken from one employer to another as evidence of an employee’s authoritatively recognised ability to do a particular job, but also includes in-house aptitude tests devised by an employer, provided they are relevant to the particular job (Blackman v Post Office

1974 ICR 151

, NIRC).

[215]The burden of proof is on the employer to show the reason for dismissal and that it was a potentially fair one — i.e. one that fell within the scope of S.98(1) and (2) of the ERA and was capable of justifying the dismissal of the employee. A ‘reason for dismissal’ has been described as ‘a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee’ (Abernethy v Mott, Hay and Anderson

1974 ICR 323

, CA).

[216]The Tribunal has to consider what the employer reasonably believes, on the basis of what it reasonably knows, about the relevant matters. For these purposes, the 'employer' is normally the person who was deputed to carry out the employer's functions under s 98. However, knowledge is not confined to the knowledge of the dismissing manager (see Royal Mail Group Ltd v Jhuti

[2019] UKSC 55

[2020] IRLR 129

[2020] ICR 731

). In Uddin v London Borough of Ealing EAT 0165/19, the EAT was of the view that the Supreme Court in Jhuti established that the knowledge or conduct of a person other than the person who actually decides to dismiss could be relevant under both S.98(1) (reason for dismissal) and (4) (reasonableness of dismissal). Process

[217]Under ERA 1996 s 98(4) the tribunal must be satisfied that the employer has acted reasonably in all the circumstances in treating that reason as sufficient

[218]The statutory test of fairness in ERA 1996 s 98(4) is as follows: … the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer:(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

[219]There is no burden of proof on either party and the issue of whether the dismissal was reasonable is a neutral issue for the tribunal to decide ( Boys and Girls Welfare Society v Macdonald

1997 ICR 693

, EAT).

[220]The Tribunal must assess the employer’s conduct, not the unfairness or injustice to the employee (see for example Chubb Fire Security Ltd v Harper

1983 IRLR 311

, EAT; and Garside and Laycock Ltd v Booth

2011 IRLR 735

, EAT).

[221]The Tribunal can take into account the potential consequences to the employer of the employee’s actions in deciding whether dismissal was fair. In Wincanton plc v Atkinson and anor EAT 0040/11, the two claimants were employed as lorry drivers. A routine check revealed that they had been driving with lapsed HGV licences for the previous one month and five months respectively. They were dismissed because of the potential adverse consequences to the employer, which included criminal prosecution, loss of insurance coverage, loss of operator’s licence and damage to business, even though no such adverse consequences had actually occurred. The EAT held that the tribunal had erred in not attaching sufficient importance to the seriousness of the damage that the employer could have suffered as a result of the claimants’ failure to renew their licences and by focusing instead on the lack of actual damage. The EAT noted that the tribunal’s approach would mean, for example, that a driver could never be fairly dismissed for driving after negligently consuming excess alcohol, as long as the journey was safely completed. Given the seriousness of the potential consequences of the claimants’ conduct in the instant case, it had to be concluded that dismissal fell well within the range of reasonable responses. Range of reasonable responses

[222]The Tribunal must not substitute its own opinion for that of the employer as to whether dismissal was a reasonable response in the circumstances. The Tribunal’s role is to determine whether the employer has acted in a manner which a reasonable employer might have acted, even if the tribunal or another employer would have acted differently. The EAT set out the relevant test in Iceland Frozen Foods v Jones

[1982] IRLR 439

“(1) the starting point should always be the words of [s 98(4)] themselves; (2) in applying the section an Industrial Tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair; (3) in judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what the right course to adopt for that of the employer; (4) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; (5) the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair'.'

[223]Other key cases include:223.1 The Court of Appeal in Tayeh v Barchester Healthcare Ltd

[2013] EWCA Civ 29

[2013] IRLR 387

confirmed that appeals to concepts of perversity are out of place in the consideration of the reasonableness or otherwise of the dismissal: the approach that has to be applied is simply that of the 'band of reasonable responses'.

223.2 The EAT reiterated in Linfood Cash and Carry Ltd v Thomson

[1989] IRLR 235

[1989] ICR 518

(adopted by the Court of Appeal in Morgan v Electrolux Ltd

[1991] IRLR 89

) that the relevant question is whether an employer acting reasonably and fairly in the circumstances could properly have accepted the facts and opinions which it did. The tribunal is not entitled to interfere simply on the grounds that it prefers one witness to another; it must have logical and substantial grounds for concluding that no reasonable employer could have assessed the credibility of the witnesses in the way in which the employer did. As the tribunal observed, cross examination in the tribunal may produce a picture of the evidence which is quite different to the picture which emerged before the employer. The reasonableness of the employer’s conduct, in the light of the circumstances prevailing at the time of dismissal, must be assessed.

223.3 Finally, in looking at whether dismissal was an appropriate sanction, the question is not whether some lesser sanction would, in the employer's view, have been appropriate, but rather whether dismissal was within the band of reasonable responses that an employer could reasonably make in the circumstances. The fact that other employers might reasonably have been more lenient is irrelevant (see the decision of the Court of Appeal in British Leyland (UK) Ltd v Swift

[1981] IRLR 91

and of the Inner House of the Court of Session in Gair v Bevan Harris Ltd

[1983] IRLR 368

). The EAT in Vaultex UK Ltd v Bialas

[2024] EAT 19

[2024] IRLR 495

stated that if the employee raises matters they say should have led to a lesser penalty, the question is whether the employer took those matters into consideration; if it did so and still decided on dismissal, it will be difficult to show that it acted outside the range. APPLICATION OF THE LAW TO THE

FINDINGS OF FACT

[224]The Tribunal has applied the law to its findings of fact and reached the conclusions set out below. DETRIMENT COMPLAINTS – TIME LIMIT ISSUES

[225]The Tribunal must consider the same test under both types of detriment complaint brought by the claimant. As set out in the section on Relevant Law earlier in this judgment, the two questions that the Tribunal has to consider in terms of time limits are:225.1 Was it reasonably practicable for the claimant to present the detriment complaints in time?

225.2 If not, within what further period does the Tribunal consider it reasonable for the claim to have been presented?

[226]We note that:226.1 the claimant has pleaded the same six alleged detriments under both types of detriment complaints in this claim;

226.2 the claimant contends that the six alleged detriments under both types of detriment complaint amount to a series of acts by NPAS;

226.3 the claimant has also brought separate complaints of automatically unfair dismissal. However, any complaints of automatically unfair dismissal cannot form part of the claimant’s detriment complaints, as stated in s47B of the ERA and s146(5)(A) of TULRCA. The claimant’s dismissal therefore cannot be the last act in a series of detriments.

[227]As noted in the List of Issues, the claimant commenced ACAS early claim conciliation on 1 March 2024 and conciliation ended on 12 April 2024. The claim form was presented on 10 May 2024. Any complaint relating to something that happened before 2 December 2023 may not have been brought in time.

[228]We will start by considering the date on which the last act (or series of acts) committed by the respondent could have occurred. We note the guidance on considering whether there is a series of acts set out in the section on Relevant Law earlier in this Judgment, including the Court of Appeal’s guidance in Arthur v London Eastern Railway. Taking each detriment in turn:228.1 Clive Clark and Jamie Thomsett refusing to fly with the claimant: the claimant states that this detriment start in their emails of November 2021 and continued until his employment terminated on 18 January 2024. At no time did Captain Clark or Captain Thomsett change their position after their emails in November 2021. There was no evidence to suggest that the claimant believed that they would change their position by the time of the capability process that re-started in January 2023 and we note that he did not include them as an option in the document setting out his proposed plans for his training/examining arrangements dated 27 October 2023. In any event, we concluded that the respondent undertook an action that was inconsistent with the possibility that either Captain may change their mind and fly with the claimant when it commenced the capability process for the first time in September 2022.

228.2 Captain Barlow failing to arrange or permit a way of testing the claimant: the clamant states that this started on expiry of his certification in September 2022 and continued until his employment terminated on 18 January 2024. We concluded that the respondent undertook an action that was inconsistent with the possibility that Captain Barlow may arrange or permit a way of testing the claimant when the capability process re-started in January 2023. In any event, we concluded that it was abundantly clear by the end of the capability hearing on 31 October 2023 that Captain Barlow would not arrange or permit a way of testing the claimant. During that hearing, ACC Baker questioned Captain Barlow and others on the possibility of arranging training and/or examining for the claimant; concluded that all reasonable steps had been considered to make such arrangements and concluded that the only option open was to dismiss the claimant (unless he successfully applied for alternative employment with the respondent before the final capability hearing);

228.3 Captain Barlow badmouthing the claimant in his email of 17 January 2022 to Babcock: we concluded that this was a one-off act and that time ran from 17 January 2022. However, even if this were part of a series of events, then the latest act in that series was 31 October 2023 for the reasons set out in relation to the other five detriments discussed in this section of the Judgment;

228.4 Placing the claimant on a capability process in September 2022 (from which he was removed on 19 October 2022): we concluded that the decision to place the claimant on a capability process was made and communicated to the claimant by the date of the first hearing on 12 September 2022. However, if we are incorrect in this conclusion, then the date from which the time limit for this complaint would run is 19 October 2022, when he was removed from the capability process;

228.5 Placing the claimant on a capability process in January 2023: the claimant states that this continued to his dismissal on 18 January 2024. We concluded that decision to place the claimant on a further capability process was made and communicated to the claimant by the date of the hearing re-starting the capability process on 9 January 2023. However, if we are incorrect in this conclusion, then the date from which the time limit for this complaint would run is 31 October 2023, when ACC Baker decided that the claimant would be dismissed (unless he successfully applied for alternative employment with the respondent before the final capability hearing). We note that claimants cannot bring detriment complaints relating to a dismissal – if the claimant wished to complain that his dismissal was automatically unfair under s103 or s103A of the Employment Rights Act 1996, then he could have brought such complaints as part of his claim;

228.6 Captain Barlow fabricating training costings in his emails of 25 and 26 August 2022 and a later email (sent by 7 October 2022): we concluded that Captain Barlow did not fabricate training costings in his emails of 25 and 26 August 2022, although we accept that the claimant and Captain Booth disagreed with the total amounts and the breakdown of the amounts provided by Captain Barlow in his emails. The claimant did not identify a further email sent before 7 October 2022. In any event, the latest date from which time could run would be 7 October 2022 if such email existed. In addition, even if this were part of a series of events, then the latest act in that series was 31 October 2023 for the reasons set out in relation to the other five detriments discussed in this section of the Judgment.

[229]We concluded that the last act (or series of acts) on which the claimant could potentially rely took place on or by 31 October 2023 at the capability hearing chaired by ACC Baker. Therefore we concluded that the time limit by which the claimant should have contacted ACAS (and shortly afterwards presented his claim) expired on 30 January 2024 (the “Primary Time Limit”).

[230]We considered the claimant’s evidence on the issue of whether it was reasonably practicable for him to present his detriments complaints within the Primary Time Limit. We concluded that it was reasonably practicable for the claimant to present his detriment complaints within the Primary Time Limit because:230.1 the claimant was aware of the possibility of bringing Employment Tribunal claims in his role as a trade union representative;

230.2 the claimant and his union discussed bringing Employment Tribunal proceedings in the months leading up to his first capability hearing in September 2022;

230.3 the claimant obtained legal advice from Unison (who consulted Thompsons solicitors) regarding his potential complaints during the capability proceedings which commenced in January 2023;

230.4 the claimant states that he was advised by Unison that the time limit for presenting his detriment complaints did not start to run until he was dismissed and that he commenced early claim conciliation within three months of his dismissal. If the claimant did receive this advice, it appears to be mistaken;

230.5 in any event, if an individual relies on skilled advisers (such as solicitors or union representatives), then ignorance of time limits does not render it not reasonably practicable to present a claim in time, unless he or his advisers could not reasonably be expected to have been aware of them (Walls Meat Co Ltd v Khan, cited above). There is no evidence here to suggest that either the claimant or his advisers could not reasonably have been aware of the time limits relevant to the claimant’s detriment complaints.

[231]The claimant’s complaints of protected disclosure detriment (s48 of the Employment Rights Act 1996) and trade union detriment (s146 of the Trade Union and Labour Relations (Consolidation) Act 1992) therefore fail and are dismissed. AUTOMATICALLY UNFAIR DISMISSAL COMPLAINTS

[232]If the reason (or principal reason) for the claimant’s dismissal was either:232.1 any protected disclosure that he made (s103A ERA); or

232.2 because he had taken part in trade union activities (s152 TULRCA); then the claimant’s dismissal would be automatically unfair under Part X of the ERA. Protected disclosures

[233]Judge Elliott recorded in the list of issues agreed with the parties that the claimant alleged that he had made three protected disclosures:233.1 in September 2021, submitting a Regulation 6 appeal to the Civil Aviation Authority saying that the flying test performed by Clive Clark was not performed correctly; (PD1)

233.2 on 2 November 2021 and 1 February 2022, at JNCC meetings (the Joint Negotiation and Consultative Committee of employer and union representatives), to Vicky White, raising concerns about NPAS (National Police Air Service) plans to offer the National Head of Training job to Phil Barlow, such concerns being on the basis of his experience being with planes not helicopters; (PD2)

233.3 raising concerns about the examiners Jamie Thomsett in July 2021 and Clive Clark in September 2021, to the claimant's line managers Rick London and Paul Watts that they were not following the correct practices in relation to the tests; (PD3)

[234]The claimant alleged that PD1 and PD3 tended to show that a person had failed, was failing or was likely to fail to comply with any legal obligation. The claimant alleged that PD2 tended to show that the health or safety of any individual had been, was being or was likely to be endangered.

[235]We concluded in our findings of fact that the claimant did not raise concerns about NPAS’ plans to offer the National Head of Training role to Captain Barlow. Therefore we concluded that the claimant did not make the second protected disclosure that he alleged.

[236]In relation to the first protected disclosure alleged, we note that the claimant submitted his Regulation 6 appeal directly to the CAA. NPAS became aware of the claimant’s Regulation 6 appeal when Mr Connolly from the CAA contacted Captain Clark in early October 2021. The claimant set out the detailed grounds of his Regulation 6 appeal in his email to the CAA dated 12 September 2021. The claimant’s key concerns as part of his Regulation 6 appeal related to:236.1 the claimant’s PC(I) (which was the element for which he was awarded a partial pass) should not have been undertaken because his existing PC(I) was valid until March 2022; and

236.2 the claimant stating that he had not been provided with the paperwork before the test took place.

[237]The claimant’s email to the CAA did not identify any breach of a legal obligation. The claimant gave evidence under cross-examination that he was relying on Regulations FCL.1030 and FCL.625.IR as being breaches of legal obligations. However, we concluded in our findings of fact that:237.1 Regulation FCL.1030 does not require applicants to be provided with test paperwork, before the test commences. We were also provided with a copy of the Examiners Report (Form SRG1238) in the hearing file, which the claimant was provided with after the test. The form did not state that the candidate had to sign the form before the test took place; and

237.2 The Regulations do not state that it is a breach of a legal obligation to revalidate a PC(i) earlier than the 3 month period prior to its expiry date. Regulation FCL.625 IR sets out provisions that apply if the revalidation requirements are fulfilled at an earlier stage – they do not state that it is a breach to do so before that 3 month period.

[238]We note that the claimant did not identify any breach of legal obligation in his emails at the time that his Regulation 6 appeal was submitted. We therefore concluded that the claimant did not believe at the time of making that appeal that Captain Clark had breached any legal obligation.

[239]However, if we are wrong in that conclusion, we concluded that if the claimant held such a belief, the claimant’s belief was not reasonable (viewed objectively) because:239.1 we note that the claimant was a trade union representative with experience in dealing with health and safety matters. He was able to access the CAA Regulations and provided copies of parts of the Regulations for the hearing file for this hearing;

239.2 on a plain reading of the two Regulations referred to by the claimant during his evidence, neither suggested that Captain Clark’s conduct of the claimant’s test in August 2021 amounted to a breach of a legal obligation.

[240]In relation to the third protected disclosure alleged, we have seen a copy of the emails exchanged between the claimant and Captain Barlow and Ms Hickey that record the concerns raised by the claimant relating to Captain Thomsett in July 2021. We concluded that these were the key issues raised by the claimant with Captain London and Captain Watts in discussions that took place around the same time. The claimant did not identify a breach of any legal obligation in his emails. Rather, he complained of Captain Thomsett’s conduct towards him, stating that Captain Thomsett was aggressive, insulting and belittling in his behaviour during the pre-brief. The claimant did not allege that Captain Thomsett had breached any legal obligation, including any CAA Regulations.

[241]The concerns that the claimant raised regarding Captain Clark are substantially the same as those set out in his Regulation 6 appeal to the CAA, which we have already concluded did not allege a breach of any legal obligation.

[242]We have concluded that the claimant did not make any protected disclosures. Therefore his complaint that his dismissal was automatically unfair under s103A of the ERA therefore fails and is dismissed. Trade union activities

[243]Judge Elliott recorded in the list of issues agreed with the parties that the claimant relied on the following trade union activities for the purposes of his detriment complaints (there was no additional record of the trade union activities relied on by the claimant in relation to his unfair dismissal complaint): “the claimant says the detriments flowed from his raising concerns at the JNCC meetings per PD2, which he did in his capacity as a trade union representative.

[244]We note that the detriments alleged by the claimant included the decision to place him on the capability process, which resulted led to his dismissal. We concluded in our findings of fact that the claimant did not in fact raise any concerns regarding plans to appointment Captain Barlow as Head of Training in the November 2021 or February 2022 JNCC meetings. We note that the claimant received a copy of the minutes shortly before the meeting and that the meeting minutes note that they were endorsed as accurate at the meeting by the attendees. The claimant (or any other attendee at the meeting) could have refused to approve them until they had time to read them in full. The claimant stated that he emailed his comments regarding both meetings from his union email addresses, but did not provide copies of any such emails as part of the hearing file.

[245]We concluded in our findings of fact that:245.1 the claimant and Captain Thomsett had previously ‘crossed paths’ during their military service and that their poor relationship pre-dated both their employment with NPAS and the claimant’s appointment as a trade union representative;

245.2 Captain Barlow raised concerns regarding arrangements for the claimant’s training and examining following his refusal to fly with Captain Thomsett in an email dated 29 July 2021 to Captains London and Watts. These issues were compounded following Captain Clark’s refusal to fly with the claimant in early November 2021;

245.3 Captain Barlow was willing to make arrangements to keep the claimant flying, as evidenced by his email to Captain Watts dated 30 November 2021. He also obtained a CAA exemption to enable Captain Roberts to examine the claimant in an aircraft (rather than a simulator) in April 2022;

245.4 the capability process was started in September 2022 and then put on hold in October 2022 because the respondent proposed arrangements involving a combination of Captain Vince and Captain Roberts to train and examine the claimant. These arrangements were not pursued due to Captain Vince’s removal from the Training Department.

[246]The claimant did not pursue any allegation during this hearing that he was dismissed because of his trade union activities in his cross-examination of the respondent’s witnesses. He did not suggest to ACC Baker or ACC Khan during cross-examination that the reason (or principal reason) for his dismissal was his trade union activities. Nor did the claimant cross-examine Chief Superintendent White on the basis that any of her decisions (or the decisions of Captain Barlow, Captain Watts or Mr Cunningham’s risk assessment) were influenced by his trade union activities.

[247]The Tribunal asked Chief Superintendent White about the impact of the claimant’s trade union activities on the matters arising from his detriment complaints. The Tribunal accepted Chief Superintendent White’s evidence that: “The claimant’s trade union activities had no impact on Captain Barlow. Captain Barlow is a fixed wing pilot if he is flying (he flies aeroplanes, not helicopter) – he does not work with the claimant on a day to day basis, he does not line manage the claimant and he does not fly with him. I cannot see any reason why Captain Barlow would or wouldn’t want the claimant to be trained. It has no positive or negative outcome for him because operational delivery is nothing to do with him.”

[248]We also note that the claimant did not allege that his trade union activities were the reason for his dismissal in his submissions. The claimant instead spoke in detail about the background to his dispute with Captain Thomsett, his Regulation 6 appeal relating to Captain Clark and the options for alternative training and examining considered as part of the capability process.

[249]We concluded that the claimant’s trade union activities were not the reason (or principal reason) for his dismissal. ORDINARY UNFAIR DISMISSAL COMPLAINT

[250]We then turn to the claimant’s complaint of ordinary unfair dismissal under s98 of the Employment Rights Act 1996. We have concluded that the claimant was dismissed under s98(2) of the Employment Rights Act 1996, i.e. due to a lack of qualifications for performing work of the kind which he was employed by the respondent to do. This was explained to the claimant at each stage of the capability process and set out in the various outcome letters sent to the claimant after each hearing.

[251]We considered that the respondent’s procedure was reasonable. We note that the claimant stated in his evidence that he felt aggrieved that the capability process had been used, in part because he believed that this suggested that the respondent had concerns regarding his performance. However, the respondent has not suggested during this hearing that the claimant was dismissed due to reasons related to his performance as a pilot. We note that both parties accepted that the circumstances in which the claimant was dismissed were unprecedented within NPAS’ organisation. We accept the respondent’s evidence that it was appropriate to start the capability process at Stage 3 because providing ‘improvement notices’ or warnings to the claimant would not have enabled him to change the situation.

[252]We noted in our findings of fact that:252.1 there were several hearings that formed part of the claimant’s first and second capability process, starting in September 2022 and ending with a final hearing on 18 January 2024;

252.2 the claimant was represented at all hearings by a trade union representative, save for the final hearing which he chose to attend without a representative;

252.3 the process was originally stopped in October 2023 because the respondent had identified an alternative route to train and examine the claimant. The process was re-started in January 2023, due to the fact that Captain Vince had not passed the required training qualifications;

252.4 the length of the capability process was due to the fact that the respondent adjourned the hearing three times after January 2023 in order to consider the role of the Chair of the hearing; the options raised by the claimant and the reasons for NPAS’ refusal of those options and to permit the claimant time to apply for alternative roles within the respondent;

252.5 ACC Baker carried out a thorough investigation into the options considered by NPAS and additional proposals raised by the claimant before and during lengthy hearings, including the October 2023 hearing which Captain Barlow, Captain Watts and Chief Superintendent White attended as witnesses. The claimant and his representative were provided with detailed information regarding NPAS’ position in advance of the hearings that took place after January 2023 and had the opportunity to question NPAS’ witnesses at the hearings in August and October 2023;

252.6 the appeal process reviewed ACC Baker’s decision and considered the points raised by the claimant. The claimant’s appeal was rejected for the reasons set out in the detailed appeal outcome letter.

[253]We then moved on to consider the reasonableness of the decision to dismiss the claimant. We reminded ourselves that the Tribunal must not substitute its view for that of the employer. The question for the Tribunal is whether it was reasonable for the respondent to dismiss the claimant in the circumstances set out in our findings of fact, having carried out a reasonable process. We note that the fact that other employers may have taken a different view to that of the respondent is not sufficient to render a dismissal unfair.

[254]We concluded that the respondent did not unfairly dismiss the claimant for the following key reasons:254.1 there was no dispute that police aviation services are by their nature very high risk, given the type of flying involved;

254.2 NPAS’ decision makers (Form Four Postholders) are accountable directly to the CAA for their decisions, including in relation to training and examining. We note that the CAA audits NPAS on an annual basis in relation to their compliance with CAA Regulations and that exemptions must be sought from the CAA for any deviation from the respondent’s Operations Manual;

254.3 the CAA Regulations operate as a baseline for aviation operators. We accept that other aviation operators may have different operating standards to NPAS. However, we concluded that NPAS did not act unreasonably in setting different (and in some contexts) higher standards than other operators. There was no dispute that police aviation services are higher risk than, for example, operating leisure flights;

254.4 we also concluded that it was reasonable for NPAS to require any external trainers and examiners to hold NPAS’s Operator Proficiency Checks and undergo a full induction in order to be able to train and/or examine NPAS’ pilots. We accepted that it would be difficult to maintain standards if external individuals were able to rely on qualifications obtained from other organisations that may not cover the same content as NPAS’ internal qualifications;

254.5 we concluded that the key risks that NPAS were concerned with in relation to training and examining related to safety and to NPAS’ accountability to the CAA for managing safety risks. We note that Captain Booth (who attended the hearing of this claim as a witness to the claimant) accepted the categories of safety risks set out in Mr Cunningham’s report from early 2023, albeit that Captain Booth took the view that the significance of those risks had been overstated. Safety risks were discussed in detail during the August and October 2023 capability hearings with ACC Baker;

254.6 the cost of obtaining external training and examining was another factor taken into account by NPAS. We note that the claimant (and Captain Booth on his behalf) disagreed with the costings provided by NPAS. Both sides’ views were discussed extensively during the August and October 2023 capability hearings with ACC Baker;

254.7 the respondent considered each of the options proposed by the claimant, including those suggested as his proposed plans dated 27 October 2023. ACC Baker considered the proposals in detail during the hearing on 31 October 2023. The claimant and his representative had the opportunity to challenge Captain Barlow, Captain Watts and Chief Superintendent White regarding their responses in the hearing;

254.8 ACC Baker reached her decision having considered all of the information available to her at that time, including the documents provided in advance of each hearing and the detailed information discussed during the hearings. We note that the EAT reiterated in Linfood Cash and Carry Ltd v Thomson (cited above) that the relevant question is whether an employer acting reasonably and fairly in the circumstances could properly have accepted the facts and opinions which it did. The tribunal is not entitled to interfere simply on the grounds that it prefers one witness to another; it must have logical and substantial grounds for concluding that no reasonable employer could have assessed the credibility of the witnesses in the way in which the employer did;

254.9 the respondent considered alternatives to dismissal including a Forma Written Improvement Notice, but concluded that these were not appropriate in the circumstances. The claimant suggested during this hearing that he could have been given a temporary role, pending Captain Roberts’ appointment as Deputy Head of Training in May 2024 and Captain Roberts’ subsequent obtaining of training qualifications. However, we concluded that the respondent had not decided whether or not to fill the Deputy Head of Training role by the time of the claimant’s dismissal on 18 January 2024. In any event:254.9.1 any role would have to be advertised prior to recruitment;

254.9.2 there was no guarantee that the person appointed would have (or would have obtained) the qualifications needed to train the claimant within a reasonable time period; and

254.9.3 the claimant did not identify a ‘temporary role’ into which he could be placed in the intervening eight months;

254.10 the respondent adjourned the hearing on 31 October 2023 to provide the claimant with time to apply for alternative roles within the respondent. The hearing reconvened on 7 January 2024 and was adjourned again because the claimant had applied for two roles in early January 2024. The claimant withdrew from one role due to the location and was not shortlisted for interview for the other role. The respondent proceeded to dismiss the claimant with pay in lieu of notice on 18 January 2024.

CONCLUSION

[255]In conclusion, the claimant’s complaints of detriments (protected disclosure and trade union activities), automatic unfair dismissal and ordinary unfair dismissal fail and are dismissed.