Case No 6004210/2024Venue CHAMBERS AT BristolHearing 3 December 2024
Between
Mr B ChavesClaimantWind River UK LtdRespondent
Before
Employment Judge J BaxDate 28 January 2026
JUDGMENT
ON APPLICATION FOR RECONSIDERATION The judgment of the tribunal is that the claimant’s application for reconsideration is refused because there is no reasonable prospect of the decision being varied or revoked.
REASONS
[1]The claimant has applied for a reconsideration of the Judgment granting the Respondent an extension of time to file a response dated 13 November 2024 which was sent to the parties the same day (“the Judgment”). The grounds are set out in his applications dated 29 November 2024, which were received by the Tribunal the same day. This has been a remote hearing on the papers.[3]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received outside of the relevant time limit.[4]Under Rule 5 the Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in the Rules or in any decision, whether or not (in the case of an extension) it has expired.[5]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[6]The grounds relied upon by the claimant are these:a. There were clear reasons for opposing the application and the solicitor had claimed without evidence that the office was minimally attended.b. He could not see his grounds of resistance were on the system and it was not clear the Judge saw them.c. This placed him at an unfair advantage because he was not heard.[7]The earlier case law suggests that the interests of justice ground should be construed restrictively. The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd [1982] ICR 440 decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.[8]More recent case law suggests that the "interests of justice" ground should not be construed as restrictively as it was prior to the introduction of the "overriding objective" (which is now set out in Rule 2). This requires the tribunal to give effect to the overriding objective to deal with cases fairly and justly. As confirmed in Williams v Ferrosan Ltd [2004] IRLR 607 EAT, it is no longer the case that the "interests of justice" ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council v Marsden [2010] IRLR 743, the EAT confirmed that it is incorrect to assert that the interests of justice ground need not necessarily be construed so restrictively, since the overriding objective to deal with cases justly required the application of recognised principles. These include that there should be finality in litigation, which is in the interest of both parties.[9]In Outasight VB Ltd v Brown [2015] ICR D11, EAT, HHJ Judge Eady QC accepted that the wording ‘necessary in the interests of justice’ in rule 70 allows the tribunal a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, ‘which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation’.[10]The Claimant’s opposition to the application was referred to the Judge at the same time as the application for an extension. The contents of the Claimant’s opposition were taken into account when making the decision, as set out in the first paragraph of the decision.[11]The matters raised were not such that, when balanced against the short delay and that the Respondent had an arguable defence to the claim, so as to mean that there was greater prejudice to the Claimant by granting the application than to the Respondent if it was refused. This was set out in the decision.[12]The relevant matters were taken into account, including the Claimant’s opposition to the application.[13]Accordingly the application for reconsideration pursuant to Rule 72(1) is refused because there is no reasonable prospect of the Judgment being varied or revoked.
Findings of Fact
[14]In an email dated 21 April 2023 to the respondent during his employment, the claimant had stated: I am trying to make sense of somethings which I already suspected. It turns out that I have ADHD: not sure this is news to anyone - it is probably an FAE requirement I am also mildly autistic - highly functional, but it goes to my 1 This was shortly after the previous preliminary hearing in these proceedings. 6 of 27 communications abilities and the way I process information, focus, etc... This is more of an informational thing rather than an actionable thing[15]The above email evidently reflected the claimant’s own perceptions/diagnoses of himself, rather than any clinical diagnoses of ADHD or autism. Notably, there has, to date, been no clinical diagnosis in respect of the claimant concerning either ASD, Asperger’s, or ADHD. The claimant’s own evidence on disability[16]The claimant provided a witness statement and gave oral evidence and was crossexamined on behalf of the respondent.[17]In his oral evidence he explained how he attributed various experiences, behaviours and personality traits in his life to Aspergers/ASD or ADHD. This was based upon his own research and understanding of those conditions, as he has yet to be clinically assessed for any of those conditions.[18]The claimant gave an account of the following during his oral and written evidence. Some of what he related was in very general terms without any specific examples given with reference to particular day-to-day activities, relevant to the s.6 EqA definition.[19]The following traits were asserted and attributed by the claimant to ASD/Asperger’s:19.1 That he finds it hard to understand what others are thinking. No specific examples were given by the claimant during evidence. There is a letter in the GP records in which the claimant refers to missing social cues to “shut up”. This evidence was too generalised to make any finding about any effect on normal day-to-day activities.19.2 That he finds it hard to make friends and prefers being on his own. He said in evidence that he had one “true friend” in life. He accepted that he had however taken part in social activities involving others (mentioned in the GP records), including a five-a-side-football group with colleagues until he sustained an injury. The evidence here was inconsistent and so I do not find that the claimant struggled to make friends.19.3 That he struggles with social rules and talks over people.19.3.1 He explained in evidence how this created tension with a colleague at work and further examples of communication difficulties at work are set out in the emails referred to below.19.3.2 He said he struggled to accept others’ views, for example in respect of COVID and political issues.19.3.3 He also said at school he was sometimes in trouble for talking over or correcting his teachers if they said something he believed was wrong/incorrect. This was, however, contradicted by the June 2023 GP entry above which recorded that the claimant told the GP that he had never had academic issues.19.3.4 He said in evidence that he had learned to “mask” the trait of talking over others when he dealt with the respondent’s 7 of 27 customers in his role, but that earlier in his employment (January 2021) a manager had counted him interrupting a customer 19 times during a call. I accepted that the claimant’s evidence to the extent that he had sometimes talked over others in social or work situations but that he had learned to mask such behaviour by way of coping mechanisms. There was no evidence before the Tribunal of any specific instances or examples of such communication issues occurring after April 2021.19.4 That he lacks emotional empathy in his interactions with others. In oral evidence he gave the example set out above in his medical records of his reaction to an apparent suicide victim earlier in his life. I accept the one example given from many years ago in the claimant’s life but there were no other more recent examples given in evidence.[20]The following traits were asserted and attributed by the claimant to ADHD):20.1 Difficulty with organisation, time management and deadlines. No specific examples were given in evidence. This evidence was too generalised to make any finding about any effect on normal day-to-day activities.20.2 That he can be hyper-focused and then lose interest in what he was doing. He gave a specific example in oral evidence of starting to build a computer but then losing interest and not completing the project. He said he had struggled at school due to teaching methods but had later passed examinations via self-study, although as noted he was recorded in the GP notes in June 2023 as reporting no academic issues in the past. I accept the claimant’s example of starting to build a computer and being unable to finish it but the evidence about his schooling/education was inconsistent.20.3 Difficulty with following instructions. No specific examples were given in evidence. This evidence was too generalised to make any finding about any effect on normal day-to-day activities.20.4 Difficulty with focusing and completing tasks. No specific examples were given in evidence other than the computer building-project mentioned above, which I have accepted.20.5 Often feeling restless and impatient and fidgeting. He said that this means he is often on his mobile phone to give him something to focus upon, which annoys his wife. I accept the claimant’s evidence that he is often on his mobile phone.20.6 Difficulty with handwriting – no specifics were given other than that during oral evidence, the claimant said that his handwriting was “super-jittery” and “bad”. I accept the claimant’s evidence that he may have untidy handwriting.[21]The following documentary evidence supported the claimant’s account of having some issues with his communication style (19.3 above):21.1 In an email from the respondent dated 28 January 2021, the claimant’s oral communication skills were criticised, specifically etiquette (interrupting colleagues/customers), when to contribute or not, 8 of 27 appropriate topics and language during business situations (with reference to Brexit and COVID issues). The claimant apologised by email and said he understood.21.2 In an email dated 8 April 2021, the claimant was told by the respondent that he had been disruptive and made inappropriate comments during Bias Training the previous day, said to have been dominating the discussion and preventing others from contributing.[22]Other aspects of the claimant’s witness evidence went to matters relevant to the issue of diagnosis, i.e. traits which he said were consistent with him having the conditions of ASD/Aspergers or ADHD, as opposed to difficulties with, or negative impacts upon, normal day-to-day activities. For example, paragraph 7 of his impact statement said: I am able to notice small details, patterns, smells or sounds that others do not. I also have a very keen interest in certain subjects or activities, which is a common trait for those who have ASD. These interests have changed over time, but the general theme is that they are usually technical and mechanical. Growing up I had specific interest in Lego, software development and gaming. Now I spend a lot of time on homebrewing ciders, fruit wines and also distilling. This seemed to arise from the absence of a clinical diagnosis in this case and the claimant attempting to fill that gap for the Tribunal based on his own knowledge and understanding of ASD/Aspergers and ADHD. The relevant law - disability The statutory definition of disability[23]Section 6 of the Equality Act 2010 (EqA) says: 6(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities…(2) A reference to a disabled person is a reference to a person who has a disability.[24]Section 212 of the EqA defines “substantial” as being more than minor or trivial.[25]Para 2 of Sch 1 to the EqA says:(1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or 9 of 27 (c) it is likely to last for the rest of the life of the person affected.(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.[26]Para 5 of Sch 1 to the EqA says:(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if: (a) measures are being taken to correct it, and (b) but for that, it would be likely to have that effect.(2) ‘Measures’ includes, in particular, medical treatment and the use of a prosthesis or other aid.[27]Para 12 of Sch 1 of the EqA says that when determining whether a person is disabled, the Tribunal “must take account of such guidance as it thinks is relevant.” The Equality Act 2010 Guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability (May 2011, updated March 2013) (the Guidance) was issued by the Secretary of State pursuant to section 6(5) of the EqA. The overall approach to deciding the issue of disability[28]In an important early case on determining the issue of disability, Goodwin v Patent Office [1999] I.C.R. 302, Morison J (President), said that Tribunals “should bear in mind that with social legislation of this kind, a purposive approach to construction should be adopted. The language should be construed in a way which gives effect to the stated or presumed intention of Parliament”. Namely, the legislation on disability is designed to confer protection rather than to restrict it.[29]Unless it is agreed by the respondent that the claimant was, at the relevant times, a disabled person then the responsibility is on the claimant to show that they were a disabled person.[30]The relevant point in time to be looked at by the Tribunal when evaluating whether the claimant is disabled under section 6 is not the date of the hearing, but the time of the alleged discriminatory act(s): Cruickshank v Vaw Motorcast Ltd [2002] I.C.R. 729.[31]In Goodwin, Morison J, provided some guidance on the proper approach for the Tribunal to adopt when applying the provisions of the Disability Discrimination Act 1995 (precursor to the EqA disability provisions). He set out four questions to be answered by the Tribunal in order. This four-stage approach was approved more recently by the Court of Appeal in Sullivan v Bury Street Capital Limited [2021] EWCA Civ 1694, where Singh LJ listed the questions as: 10 of 2731.1 Was there an impairment? (the ‘impairment condition’);31.2 What were its adverse effects [on normal day-to-day activities]? (the ‘adverse effect condition’);31.3 Were they more than minor or trivial? (the ‘substantial condition’);31.4 Was there a real possibility that they would continue for more than 12 months? (the ‘long-term condition’).[32]Singh LJ emphasised that these are questions for the Tribunal; although a Tribunal may be assisted by medical evidence, it is not bound by any medical opinion expressed.[33]In Goodwin, Morison J warned of the risk of disaggregating” the four questions – i.e. whilst they can be addressed separately, it is important not to forget the purpose of the legislation, and to look at the overall picture. This warning was emphasised by HHJ Tayler more recently in Mr A Elliot v Dorset County Council, UKEAT/0197/20/LA. The “impairment” question[34]Underhill J (President) in J v DLA Piper UK LLP [2010] WL 2131720 suggested (para [40]) that although it was still good practice for the Tribunal to state a conclusion separately on the question of impairment, as recommended in Goodwin, there will generally be no need to actually consider the ‘impairment condition’ in detail: “In many or most cases it will be easier (and is entirely legitimate) for the tribunal to ask first whether the claimant's ability to carry out normal dayto-day activities has been adversely affected on a long-term basis. If it finds that it has been, it will in many or most cases follow as a matter of common-sense inference that the Claimant is suffering from an impairment which has produced that adverse effect. If that inference can be drawn, it will be unnecessary for the tribunal to try to resolve the difficult medical issues.”[35]Para 7 of Appendix 1 to the EHRC’s Employment Code of Practice (the Code) states: ‘There is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment, not the cause’. This was confirmed by Langstaff P in Walker v Sita Information Networking Computing Limited [2012] UKEAT 0097/12: ‘The purpose of the definition of disability was not to confine an impairment to that which could be shown to be given a medical label which was either a recognised physical or mental condition; it was, rather, to describe the nature of the impairment. The Act did not require a focus upon the cause of that impairment’.[36]The Guidance says at A3: “The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or 11 of 27 physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects”. Medical/clinical evidence and mental impairments[37]The position in respect of mental impairments is rather more nuanced than the broad general position above.[38]In terms of a mental impairment, the Court of Appeal said that the term “mental impairment” should be given its “natural and ordinary meaning”, and the Tribunal should use its “good sense” to make a decision whether the claimant is suffering from a mental impairment on the facts of each case: per Mummery J in McNicol v Balfour Beatty Rail Maintenance Ltd [2002] EWCA Civ 1074.[39]Morgan v Staffordshire University [2002] ICR 475, EAT is a case under the old Disability Discrimination Act 1995 (DDA) provisions, which required a clinically well-recognised illness but, with that caveat in mind, still contains some useful pointers around medical evidence and the issue of mental impairments, summarised as follows:39.1 Tribunal members cannot be expected to have anything more than “a layman’s rudimentary familiarity” with psychiatric classification. Matters therefore need to be spelt out. Claimants should identify clearly and in good time before the hearing exactly what their impairment is and respondents should indicate whether that impairment is an issue and, if so, why. The parties will then be clear as to what must be proved or rebutted, in medical terms, at the hearing.39.2 Tribunals are unlikely to be satisfied of the existence of a mental impairment in the absence of suitable expert evidence. However, this does not mean that a full consultant psychiatrist’s report is required in every case. There will be many cases where the illness is sufficiently marked for the claimant’s GP to prove it. Whoever deposes, it will be prudent for the specific requirements of the legislation to be drawn to that person’s attention.39.3 If it becomes clear that, despite a GP’s letter or other initially available indication, an impairment is to be disputed on technical medical grounds, then thought will need to be given to further expert evidence.39.4 There will be many cases, particularly if the failure to make adjustments is in issue, where the medical evidence will need to cover not merely a description of the mental illness but when, over what periods and how it can be expected to have manifested itself in the course of the claimant’s employment.39.5 The dangers of a tribunal forming a view on mental impairment from the way the claimant gives evidence on the day cannot be overstated. Tribunal members need to remind themselves that few mental illnesses 12 of 27 are such that the symptoms are obvious all the time, and that they have no training or, as is likely, expertise in the detection of real or simulated psychiatric disorders. Furthermore, the date of the hearing itself will seldom be a date on which the presence of the impairment will need to be proved or disproved.[40]The EAT in Morgan also said that medical certificates issued by doctors to excuse employees from attending work, and which state little or no more than that the individual is suffering from "depression", might not be sufficient to establish disability.[41]Medical evidence as to the existence of an impairment, particularly a mental impairment, may therefore be necessary. In Royal Bank of Scotland plc v Morris EAT 0436/10 the EAT reiterated the importance of expert medical evidence where an alleged disability takes the form of ‘depression or a cognate medical impairment’. It stated that, in such cases, the issues will often be too subtle to allow a tribunal to make proper findings without expert assistance. The EAT considered that a statement made by the Tribunal in its judgment that ‘the existence or not of a mental impairment is very much a matter for qualified and informed medical opinion’ remained valid and did not relate specifically to the now-defunct DDA requirement that a mental impairment be ‘clinically wellrecognised’. 42. in Herry v Dudley Metropolitan Council UKEAT/0100/16 and Herry v Dudley Metropolitan Council and Governing Body of Hillcrest School UKEAT/0101/16, the claimant was unable to establish disability because the difficulties they were encountering were due to a reaction to difficulties at work rather than a mental impairment. At para 56, the EAT stated: Although reactions to adverse circumstances are indeed not normally long-lived, experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities. A doctor may be more likely to refer to the presentation of such an entrenched position as stress than as anxiety or depression. An Employment Tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an Employment Tribunal) are not of themselves mental impairments: they may simply reflect a person’s character or personality. Any medical evidence in support of a diagnosis of mental impairment must of course be considered by an Employment Tribunal with great care; so must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee’s satisfaction; but in the end the question whether there is a mental impairment is one for the Employment Tribunal to assess.[43]The case of Stedman v Haven Leisure Ltd [2025] EAT 82, was one in which there had been a clinical diagnosis of the mental impairment of ADHD but the Tribunal 13 of 27 had not found the claimant to be disabled. On appeal, the EAT held as follows (emphasis added):59. While I do not expect all judges to be familiar with the international diagnostic criteria for autism and ADHD, all judges should be familiar with the Equal Treatment Benchbook, and also with the principle that a diagnosis (in broad terms) reflects a clinical judgment that someone is significantly different from the norm as regards the area of functioning covered by the diagnosis. The Disability glossary to the Equal Treatment Benchbook provides a lot of information about autism, including explaining that “To have a diagnosis of autism a person will have difficulties with social communication and integration, and will often demonstrate restricted, repetitive patterns of behaviour, interests or activities.” Equivalent information is included in relation to ADHD.60. Where a Tribunal has before it evidence of a clinical diagnosis of autism or ADHD, accordingly, then (unless there is some reason to doubt the reliability of that clinical judgment), the Tribunal must take that diagnosis into account not just as evidence that someone has a condition or impairment, but as evidence as to the impact of that impairment. The diagnosis means they have been judged by a clinician to have significant (i.e. clinically ‘more than minor or trivial’) difficulties with the areas of functioning covered by the diagnosis.61. It does not, of course, follow that the Tribunal must accept the clinician’s view as answering the disability question under the Act. The Tribunal still needs to consider what it was that led the clinician to make the diagnosis in the claimant’s case, and to make findings about the claimant’s ability to carry out day-to-day activities. If the claimant is not a reliable narrator, that may undermine any clinical opinion that is based on the claimant’s account. However, as regards something like social interaction and communication, if a clinician has judged a claimant’s difficulties in that respect to be significant enough to merit a diagnosis of autism, a Tribunal will need to engage with that view in its reasons when dealing with the question of ‘substantial adverse effect’. The “adverse effect on normal day-to-day activities” question[44]“Day-to-day activities” encompass activities which are relevant to participation in professional life as well as participation in personal life, and that the Tribunal should focus on what the claimant cannot do, not what they can do.[45]There needs to be evidence that the relevant impairment caused the adverse impact on the claimant’s ability to carry out normal day-to-day activities – see Primaz v Carl Room Restaurants Ltd [2021] WL 05510289.[46]It is important that a Tribunal makes clear findings as to the nature of the impairment and which symptoms are attributable to it. In Morgan Stanley International v Posavec EAT 0209/13 a claimant raised a wide range of medical problems that she had experienced over the course of several years during her evidence and was found to be disabled. On appeal, the EAT observed that it was 14 of 27 unclear from her evidence which of the impairments she had asserted in the claim might have led to her various symptoms – the claimant’s evidence contained a ‘potpourri’ of conditions and symptoms, which might or might not have been part of, or attributable to, the two conditions she had pleaded in her claim. It was incumbent on the Tribunal to identify the nature of the disability and make findings as to which symptoms were attributable to the conditions that the claimant originally set out in her claim and those identified in her oral evidence.[47]The Guidance includes the following examples of what is meant by “normal dayto-day activities” (paragraph numbers in the Guidance are in square brackets):[48]In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. [D3][49]Normal day-to-day activities can also include general work-related activities such as interacting with colleagues, driving and keeping to a timetable or shift pattern. [D3].[50]The term ‘normal day-to-day activities’ is not intended to include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to- day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context, ‘normal’ should be given its ordinary, everyday meaning. [D4] It is not necessary, however, that “most people” carry out the activity for it to amount to a normal dayto-day activity – the examples of breast feeding and applying make-up are given [D5].[51]Normal day-to-day activities also include activities that are required to maintain personal well-being. Account should be taken of whether the effects of an impairment have an impact on whether the person is inclined to carry out or neglect basic functions such as eating and sleeping [D16].[52]Some impairments may have an adverse impact on the ability of a person to carry out normal day-to-day communication activities [D17].[53]The Guidance also says at [D20 and D21] that environmental conditions may have an impact on how an impairment affects a person’s ability to carry out normal dayto-day activities and that consideration should be given to whether there may also be an adverse effect on the ability to carry out a normal day-to-day activity outside of that particular environment. Work-related activities may be "normal"[54]As the Guidance above indicates at D3, Tribunals are entitled in appropriate circumstances to take into account the effect on an employee of circumstances which only arise at work (Law Hospital Trust v Rush [2001] IRLR 611; Cruickshank v VAW Motorcast [2002] IRLR 24).[55]In Chacón Navas v Eurest Colectividades SA [2006] IRLR 706, the European 15 of 27 Court of Justice (ECJ) confirmed that the effect on a person's abilities at work should be taken into account: “disability” in the context of the Framework Directive means "a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life".[56]Domestic examples of work-related activities amounting to normal day-to-day activities include:56.1 Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763 - career-related examinations and assessments.56.2 Chief Constable of Dumfries & Galloway Constabulary v Adams UKEATS/0046/08 - night work.56.3 Aderemi v London and South Eastern Railway Ltd UKEAT/0316/12 - standing for long periods.56.4 Banaszczyk v Booker Ltd UKEAT/0132/15 - lifting and moving goods weighing up to 25kg. The EAT found that it was beyond doubt that this was a normal day-to-day activity, as large numbers of people are employed to do this type of work across a range of occupations. The EAT noted that it is important to define the relevant activity of working or professional life broadly.56.5 Williams v Newport City Council [2023] EAT 136 – inability (of a social worker) to attend court hearings.[57]In Rayner v Turning Point and others UKEAT/0397/10, the EAT said that advice from a GP to abstain from work "is in itself evidence of a substantial effect on dayto-day activities... day-to-day activities include going to work. If he is medically advised to abstain and is certified as such so as to draw benefits and sick pay from his employer, that is capable of being a substantial effect on day-to-day activities". The “substantial” effect question[58]Section 212(1) EqA defines “substantial” as meaning a “more than minor or trivial” effect.[59]The Guidance includes the following:59.1 The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people [B1]. This has been seen as a problematic aspect of the Guidance – see Elliot v Dorset County Council. Any inconsistency must be resolved in favour of the statute.59.2 The cumulative effects of an impairment should be taken into account when working out whether it is substantial. An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular 16 of 27 day-to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, taken together, could result in an overall substantial adverse effect [B4]. For example: “A man with depression experiences a range of symptoms that include a loss of energy and motivation that makes even the simplest of tasks or decisions seem quite difficult. He finds it difficult to get up in the morning, get washed and dressed, and prepare breakfast. He is forgetful and cannot plan ahead. As a result he has often run out of food before he thinks of going shopping again. Household tasks are frequently left undone, or take much longer to complete than normal. Together, the effects amount to the impairment having a substantial adverse effect on carrying out normal day-to-day activities.”59.3 The focus should be on what an individual cannot do, or can do only with difficulty, rather than on the things that he or she can do [B9].[60]As noted above, the effects of some impairments may become substantial depending on environmental conditions [D20/21].[61]Appendix 1 to the Code also provides guidance on the meaning of “substantial”: “Account should… be taken of where a person avoids doing things which, for example, causes pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation.”[62]As stated in the Guidance, the effect of an impairment on more than one activity, taken together, could result in an overall substantial adverse effect. Further, the cumulative effect of more than one impairment should be taken into account. In Ginn v Tesco Stores Ltd UKEAT/0197/05, the EAT confirmed that it is not necessary for the impairments affecting the claimant to interact, or to have the same effect, or affect the same part of the body. The question for the tribunal to determine is whether the combined effect of the impairments is to have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities (see also Mefful v Merton and Lambeth Citizens Advice Bureau UKEAT/0127/16).[63]Two consecutive impairments can be aggregated for the purposes of determining the duration of an impairment, provided they are related (Patel v Oldham Metropolitan Borough Council and The Governing Body of Rushcroft Primary School UKEAT/0225/09; see also para [C2] of the Guidance.[64]Furthermore, in Aderemi v London and South Eastern Railway Ltd [2013] ICR 591, Langstaff P held that a claimant could satisfy the definition of disability even if only one activity of day-to-day living were affected. Effects of behaviour[65]Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities [B7]. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person 17 of 27 would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities.[66]Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment, or avoids doing things because of a loss of energy and motivation [B9]. It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. In determining a question as to whether a person meets the definition of disability it is important to consider the things that a person cannot do, or can only do with difficulty.[67]In some cases, people have coping or avoidance strategies which cease to work in certain circumstances (for example, where someone who has dyslexia is placed under stress) [B10]. If it is possible that a person’s ability to manage the effects of an impairment will break down so that effects will sometimes still occur, this possibility must be taken into account when assessing the effects of the impairment. Effects of treatment[68]The EqA Sch 1 para 5 provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect [B12]. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’.[69]The impairment should therefore be treated by the Tribunal as having the effect that it would have without the measures in question. The EqA states that the treatment or correction measures which are to be disregarded for these purposes include, in particular, medical treatment and the use of a prosthesis or other aid (Sch1, Para 5(2)). In this context, medical treatments would include treatments such as counselling, the need to follow a particular diet, and therapies, in addition to treatments with drugs (See also [B7] and [B16]).[70]This provision applies even if the measures result in the effects being completely under control or not at all apparent [B13]. Where treatment is continuing it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect. If the final outcome of such treatment cannot be determined, or if it is known that removal of the medical treatment would result in either a relapse or a worsened condition, it would be reasonable to disregard the medical treatment in accordance with paragraph 5 of Schedule 1. The “long term” question[71]In McKechnie Plastic Components v Grant UKEAT/0284/08 it was said: “… the Appellant does have a valid ground on one aspect of the judgment; namely the approach the Tribunal adopted in relation to the question of whether the mental impairment was long term. It is not clear why the Tribunal decided at paragraph 6 that the mental impairment had started in 18 of 27 January 2007 nor is it clear whether the Tribunal had in mind the full statutory test which has three categories concerning the impairment; - namely that it has lasted for 12 months; - the period for which it lasts is likely to be at least 12 months or - it is likely to last for the rest of the person's life. Paragraph 9 of the decision refers only to the 12-month test. However the Tribunal do not appear to have considered whether the 12 month test was satisfied at the time of the alleged discriminatory acts as opposed to the date of the hearing. Moreover the Tribunal has made no findings of fact to justify whether the conditions of either of the other categories have been met”.[72]The EqA also covers recurring and fluctuating effects and says that, if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur (Sch 1, para 2).[73]Para C7 of the Guidance refers to recurring or fluctuating effects and says: It is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the ‘longterm’ element of the definition is met. A person may still satisfy the longterm element of the definition even if the effect is not the same throughout the period. It may change: for example activities which are initially very difficult may become possible to a much greater extent. The effect might even disappear temporarily. Or other effects on the ability to carry out normal day-to-day activities may develop and the initial effect may disappear altogether.[74]“Likely” has been held to mean it is a “real possibility” and “could well happen” rather than something that is probable or more likely than not. (SCA Packaging Ltd v Boyle [2009] ICR 1056). Here the Supreme Court upheld Girvan LJ in the Court of Appeal (para 19): “The prediction of medical outcomes is something which is frequently difficult. There are many quiescent conditions which are subject to medical treatment or drug regimes and which can give rise to serious consequences if the treatment or the drugs are stopped. These serious consequences may not inevitably happen and in any given case it may be impossible to say whether it is more probable than not that this will occur. This being so, it seems highly likely that in the context of paragraph 6(1) in the disability legislation the word “likely” is used in the sense of “could well happen”.”[75]As stated above in McKechnie, the relevant date for assessing whether or not an impairment had lasted, or was likely to last, for 12 months is at the date(s) of alleged discrimination (see also Tesco Stores Ltd v Tennant [2020] IRLR 363; 19 of 27 Seccombe v Reed in Partnership Ltd UKEAT/0213/20). The parties’ submissions[76]I heard oral submissions, summarised below. The claimant’s submissions[77]Mr Searle submitted as follows:77.1 The parameters for the hearing were set out in the previous CMO – to determine whether the claimant satisfied the section 6 definition. This is a low hurdle – the test has most recently been helpfully set out in the Stedman EAT authority (see above).77.2 Stedman reminds the Tribunal of the importance of the Codes and Guidance. It refers to well-trodden statements of principle.77.3 His sense was that principally the real battleground was whether or not the impairments the claimant says he has are substantial or not.77.4 It is clearly a condition which is long term – we know that as the claimant says this in his impact statement at para 3. He says he had ASD and ADHD for the majority of his life. This is consistent with both conditions, which are lifelong – they do not develop with age.77.5 The claimant’s conditions of ASD and ADHD satisfied the long term effect – in support of that we know that as of 8 June 2023 he saw his GP and requested a referral – this was not done that for fun of it. It was done it as one can assume he had had enough and could not manage on his own and so sought medical input to ameliorate his symptoms.77.6 He urged the Tribunal not to fall into the temptation that ASD and ADHD were in some way linked to intelligence – the Tribunal should take judicial notice that they are not linked to intelligence. The claimant had been able to secure new employment – this was not something which should be taken into account as going against the claimant.77.7 The respondent says that these are just character or personality traits – they impact on the claimant’s life in a significant way – he tells the Tribunal about the impact the conditions have from para 6 onwards in his witness statement.77.8 The claimant has been consistent with what he has said in his impact statement and what can be seen in his GP records and the 8 June 2023 attendance – that was over two years ago now.77.9 The claimant gave evidence when pressed about how he got on with his wife and academically.77.10 The letter in September 2023 from the claimant sets out the effects of the conditions on the claimant. It was plainly obvious the effects that it was 20 of 27 having on the claimant.77.11 Before that, there is some evidence in the bundle about issues at work – the email in January 2021 refers to disruptive and inappropriate comments. It was suggested that the claimant attend a course as his communications skills needed improvement. The further emails contain indicators which are consistent with what the claimant says the impacts are.77.12 The Tribunal’s assessment is not just how the conditions impact on the claimant at work but are a factor which can be taken into account.77.13 The test is a low hurdle – the claimant does not need to have a formal diagnosis and need not fall within ICD classifications – this is no longer necessary – the focus and concentration of the Tribunal is on the impact of the impairments on his ability to do day-to-day activities.77.14 Substantial is more than minor or trivial – I should be satisfied that what the claimant demonstrates is more than minor and trivial he has set out how the condition impacts on day to day activities. It impacts on his studies and his social life – he is hyper focused and loses interest once he realises a solution. He has a lack of empathy. The ASD condition is an art rather than a science – a broad spectrum.77.15 He shares the claimant’s sense of frustration in any suggestion that he needs to be catatonic to meet the definition – that is plainly not right.77.16 He referred to Stedman, a case about ASD and ADHD which reminds the Tribunal of the test and its parameters. He referred to Roman numeral (ii) in the Stedman summary and then paras 8, 9, 10, 12, 13, 14, 17, 18, 19, and 82 of that decision.77.17 I asked Mr Searle what I should find as being the impairments in this case, were I to find in the claimant’s favour, given that I am not medically qualified to make any medical or clinical diagnosis, that the claimant relied expressly on the conditions of ASD/asperger’s and ADHD, and that there has been no clinical diagnosis of these conditions in his case.77.18 Mr Searle said that I should focus on the effects on the claimant – I needed only to find one example as the claimant would get home based on just one activity being substantially affected. He said this was not a medical question, it was a legal question. It was not a clinical matter but a matter for the Tribunal. The focus should be on the impairment and not on any formal label. The respondent’s submissions[78]Mr Ryan submitted as follows:78.1 He wish to identify three points of agreement:78.1.1 No Formal Diagnosis Required: he agreed, in general terms, that a 21 of 27 formal diagnosis is not required to establish disability.78.1.2 Stedman: As referenced in Stedman, the Tribunal should not weigh what the claimant can do against what they cannot.78.1.3 Nature of conditions: he agreed that conditions such as ASD and ADHD are not always clear-cut; they are more of an art than a science.78.2 However, he only partly agreed that the test is a low hurdle. While the social model of disability is relevant, the legal test still requires careful scrutiny of the facts.78.3 The claimant is asserting that he has neurodiverse symptoms. The fact that he holds a degree and has secured employment does not automatically establish disability. The focus must be on how the alleged impairments affect his daily life.78.4 The burden is on the claimant to establish that he has a mental impairment. He has described his autism as "mild." Taken together, the evidence amounts to an assertion of disability, and I invite the tribunal to consider the importance of medical or professional assessment. While not determinative, such evidence is particularly important in a case of this nature.78.5 In RBS v Morris, the EAT noted that in the absence of an independent report, the Tribunal must consider whether the claimant’s assertions are sufficient. That case also highlights that some impairments are too subtle to be identified without expert assistance. This is relevant here, as the claimant remains undiagnosed.78.6 It is notable that the issue of ASD only arose after the claimant was challenged about his interactions. He responded professionally at the time, and only later did he assert that he had ASD.78.7 While the absence of a diagnosis does not preclude a finding of disability, the evidence in this case is limited. In Stedman, the claimant had a confirmed clinical diagnosis of ADHD, which is not the case here.78.8 The claimant appears passionate about his self-diagnosis. He claims not to have friends and that his wife criticises his phone use. However, this may reflect an attempt to embellish his situation to establish a disability. There is very little evidence of what he can or cannot do. Paragraph 10 of his witness statement is not supported by medical evidence.78.9 Mr Ryan submits that there is insufficient evidence to establish that the claimant has a disability or fits within a diagnostic framework. He has played football and engaged in team activities, suggesting he does have a social life. There is no evidence of substantial difficulties in day-to-day life.78.10 Page 19 of the bundle [GP notes above] includes a comment that someone “just thinks he’s a prick.” While the claimant may be direct, blunt, or honest, that does not equate to having a disability. 22 of 2778.11 In Herry v Dudley MBC (EAT 0100/16), the EAT held that even in cases involving anxiety and depression, the Tribunal is not bound to find a mental impairment. Sometimes, the issues reflect a person’s character or personality rather than a disability.78.12 The key points were, Mr Ryan submitted, as follows:78.12.1 The burden of proof lies with the claimant.78.12.2 The tribunal must determine the matter on the balance of probabilities.78.12.3 Greater weight should be placed on the lack of evidence of impairment beyond the claimant’s assertions.78.12.4 In Goodwin, the court emphasised that the existence of an impairment can be disputed.78.12.5 The effect of the condition must be substantial, as clarified in Stedman para 23.78.12.6 The medical evidence here is wholly insufficient—there is no clear long-term impact or connection to a recognised mental impairment. There is no diagnosis or prognosis. Discussion and
Conclusion
[79]I have set out my decision on the issue of disability below, applying the law and guidance summarised above to the facts which were presented to the Tribunal, the burden being on the Claimant to establish a disability. The claimant relies only upon the pleaded impairments of ASD/Asperger’s and ADHD. Was there an impairment? (the ‘impairment condition’)[80]I am not satisfied, on the balance of probabilities, that the claimant has the pleaded impairments of ASD, Asperger’s or ADHD. In particular, there has been no clinical diagnosis of any of these impairments. I am not qualified to state whether or not the claimant has these impairments in the absence of such a diagnosis. There is more generally a lack of meaningful medical evidence in this case.[81]In essence the available medical evidence consists of the claimant telling his GP for the first time that he believes he has these various conditions in 2023, the GP then referring him on for specialist assessment and, over two years later he has not had any such clinical assessments via the NHS. The claimant has not obtained or presented any other medical or clinical evidence to the Tribunal, such as obtaining a diagnostic report privately. Absent (or pending) such a clinical diagnosis I can only regard the conditions above as self-diagnosed by the claimant. 23 of 27[82]I asked Mr Searle during closing submissions if the claimant continued to rely on the specified pleaded impairments of ASD/Asperger’s and ADHD in the absence of any clinical diagnosis of the same. I stressed, as above, that I am not medically qualified and so cannot clinically diagnose the claimant with any of these conditions. Mr Searle’s response was that a medical diagnosis was not necessary when considering the issue of disability and the focus of the Tribunal should be on the impact of an impairment upon day-to-day activities. Such an approach does not greatly assist a Tribunal, however, when the claimant is expressly relying, by way of the issue of disability, only upon specifically pleaded neurodiverse conditions which are subject to clinical diagnosis. A Tribunal cannot simply conclude that a claimant has ASD/Asperger’s or ADHD based upon a lay claimant’s self-diagnosis of the same, based in turn on mere assertion by the claimant and upon unspecified research of those conditions which was not before the Tribunal. Nor can a Tribunal take judicial notice that certain symptoms asserted by a claimant mean that a claimant has the conditions of ASD/Asperger’s and/or ADHD, in the absence of a clinical diagnosis.[83]The case of Stedman, noted above, confirmed the significance of a clinical diagnosis of a neurodiverse condition (ADHD), in terms of the clinical considerations which lie behind such a diagnosis and in turn what such a diagnosis entails for a Tribunal considering the issue of disability. The absence of such a diagnosis is also significant. Absent a diagnosis, how is a non-medically qualified Tribunal to determine whether a claimant’s asserted difficult personality traits are(i) simply a facet of their personality but not in any clinical sense, or(ii) are in fact a symptom of an underlying neurodiverse condition which adversely affects how they behave in some situations. In broad terms, Autism/ASD and ADHD are both neurodiverse conditions, which in the Tribunal’s own experience, manifest differently in different individuals in different situations.[84]The claimant has, in light of the above, failed to establish that he had the pleaded impairments of ASD/Asperger’s and ADHD.[85]I have nonetheless considered below whether the claimant has or had at the material time a mental impairment sufficient to meet the definition in section 6 EqA, regardless of the label and focusing instead on the effects of such an impairment, and whether these were substantial. What were the adverse effects caused by the impairment(s) on normal day-to-day activities? (the ‘adverse effect condition’)[86]The claimant’s evidence about the adverse effects of the pleaded impairments was in the main very generalised and lacking in examples and context. It was not supported by any medical evidence, as in effect there was no meaningful medical evidence in this case.[87]The claimant’s impact statement referred to a number of broad effects which he said that he experienced and which he sought to attribute to either ASD/Asperger’s or ADHD. As has already been made clear, neither the claimant nor the Tribunal are medically qualified to assess or determine whether a particular adverse effect which is asserted flows from a particular mental 24 of 27 impairment – there is a likely to be need for medical evidence about such matters (see Morgan and Morris). Such evidence would greatly have assisted in the present case. A Tribunal needs to be satisfied that the impairment caused the effects relied upon (see Primaz) and in a case such as the present where expressly pleaded clinical conditions are relied upon by a claimant, that relies in turn on medical evidence.[88]Leaving aside the pleaded conditions relied upon and just looking instead at the claimant’s evidence of adverse effects, the particular adverse effects which he did establish in evidence were as follows, also addressing whether these related to “normal day-to-day activities”:a. That he sometimes talked over people, for example at work when discussing social and political issues, and for a time particularly during 2021, with colleagues and customers. He had, however, learned to mask this behaviour. Interaction with colleagues at work is a normal day-to-day activity. Discussing more specific social and political issues (office chat/small talk) is not – many people do not enjoy or wish to take part in small talk or discussions with colleagues at work about political or social issues.b. That he lacked empathy with reference to a suicide victim earlier in his life. Reacting to such a situation is not a normal day-to-day activity. It is an exceptional situation which, fortunately, very few people are likely to have experienced or witnessed. He did not give any specific examples of lacking empathy in normal day-to-day situations and the consequences of the same.c. That he had been unable to finish building a computer because he had been hyper-focused and then lost interest. I do not consider that building a computer is a normal day-to-day activity. It is highly-specialised and something which very people would be likely to attempt, and fewer still would be likely to complete.d. That he was often on his mobile phone, which annoyed his wife. Using a mobile phone is a normal day-to-day activity.e. That his handwriting was untidy. Handwriting is a normal day-to-day activity in my view, notwithstanding the prevalence of typed text nowadays.[89]Whilst there is no clinical basis to determine whether these effects arose from any specific impairment, including the pleaded impairments, I have gone on to consider below whether individually or collectively, these adverse effects were nonetheless “substantial” and might in their own right meet the s.6 definition even absent any clear underlying “impairment”. The “substantial” condition[90]Where I have found adverse effects on normal day-to-day activities above, I have gone on to consider whether they were substantial i.e. more than minor or trivial. To put this into context, it is worth noting that the claimant described himself to the respondent in 2023 as “mildly autistic” and “highly functioning”. I remind myself, nonetheless, that the correct focus is on what he cannot do. 25 of 27a. Sometimes talking over people at work. There is evidence that the claimant talking over others at work created some difficulties for him during a specific period in 2021, but that when this was raised with him, he was able to modify and mask his behaviour. The matters were addressed with him informally at the time by the respondent (i.e. he was not disciplined or issued with any sanction) and there was no evidence before the Tribunal of any specific recurrence after April 2021. I do not consider that these effects or difficulties, in the circumstances, were more than minor or trivial, on the available evidence (I have nonetheless also considered below whether they were “long term” below, for completeness).b. I do not consider that the claimant excessively using his mobile phone, to the annoyance of his wife, amounts to a substantial adverse effect on normal day-to-day activities. Over-use of mobile phones is a very common complaint in modern society, and the claimant’s description of his mobile phone usage is not more than a minor or trivial issue, in this context.c. Finally, I do not consider that the claimant having untidy handwriting is anything more than a minor or trivial effect. There was no evidence of any particular difficulties in any specific day-to-day situations said to arise from his untidy handwriting.[91]Taking the points in the preceding paragraph together, cumulatively, I also do not consider that they amount to a substantial adverse effect on normal day-to- day activities. The “long term” condition[92]The question of whether an impairment has lasted or is likely to last at least 12 months (including where adverse effects fluctuate and recur) is to be answered based upon the evidence available at the time.[93]Whilst Autism/Asperger’s and ADHD are lifelong conditions, the claimant in this case has not established that he has such conditions. Furthermore, adverse ADHD effects in particular can be modified and mitigated by coping strategies and so may not be consistent over time. The absence of medical/clinical evidence in this case again does not assist a Tribunal in this position.[94]On the available evidence, the only adverse effect on normal day-to-day activities described by the claimant which came close to amounting a substantial adverse effect was that upon his communication skills, more specifically sometimes talking over people at work. I did not, however, find this effect to be substantial, but if I had done so, the only specific evidence of this adverse effect affecting the claimant was between January 2021 and April 2021, with no evidence of recurrence. This was for less than 12 months and there was no evidence that it was “likely” to recur. It was not therefore “long term” in any event. Conclusion[95]In light of my findings above, the clamant has not established that he was disabled for the purposes of the Equality Act 2010 at the relevant times.[96]The claimant’s claims of disability discrimination are dismissed accordingly. 26 of 27
The hearing
[97]I accept the factual account in the Claimant’s email of 15.04.2021 as likely to be broadly accurate. I find it unlikely that the Claimant was shirking work – he was keen to earn commission, and successful in doing so. There was a project in which he was unable to be involved, for a time at least, because he was not, at the time, a UK citizen. Indeed, the Claimant’s account is consistent with him wanting more involvement with clients but being restrained from this. The email is also consistent with an uneasy relationship between the Claimant and Mr Clay. Pressure to be vaccinated against Covid-19[98]I have already referred to the Claimant’s views of Covid-19 vaccinations. He was sceptical – to say the least – about the merits of vaccination, and strongly opposed to mandatory vaccines.[99]On 04.01.2022, the Claimant emailed Ms Tyson and Mr Parkinson on the subject of vaccination against Covid-19, and his refusal to have a vaccine. The email is long, and to quote it would extend reasons that are already too lengthy. It contains a number of assertions as to scientific data. It is neither necessary nor appropriate for me to engage in a consideration of whether the Claimant’s assertions are correct.[100]The Claimant does say, at the start of the email, that “The pressure to get vaccinated for apparently no benefit to me or the ones surrounding me is starting to cause some anxiety”. I accept that his belief that vaccination would be of no benefit to him, was genuine.[101]On 07.01.202, Ms Tyson responded to his email. Insofar as is relevant to this issue, Ms Tyson wrote: I’m sorry to hear that you are experiencing anxiety due to your decision not to have a vaccination. You should be clear that Wind River respects the personal choice you have made, and that this is not necessarily a concern from our perspective. You will have seen the email sent to Wind River global yesterday (from the People Team alias) that all company travel should be put on pause until further notice given the Omicron variant situation. The Company will continue to monitor the Covid developments and adjust internal policies accordingly. For you, the situation remains as previously – you will not be able to undertake any customer travel on behalf of the Company or to visit the Swindon office.[102]A little over an hour later, the Claimant responded: I need to address the following statement: “I’m sorry to hear that you are experiencing anxiety due to your decision not to have a vaccination” My decision to not have a vaccination does not cause me anxiety. I have assessed the risks scientifically and mathematically and I am comfortable with my health decisions –I also am not averse to experimentation, my hip resurfacing is part of a clinical trial. The anxiety is because the new company policy and pressure by Wind River to get vaccinated is making me feel insecure in my position. With regards to customer trips, I have stated before that I am happy to present a negative test and to wear masks when visiting customers.[103]A short time later, Ms Tyson replied: There is no pressure to get vaccinated, but again, current policy simply states if you are not vaccinated then no company travel is permitted. The current global situation is that no company business travel will be approved, regardless of vaccination status, unless deemed absolutely critical and signed off at executive level. I absolutely acknowledge your statement below: “With regards to customer trips, I have stated before that I am happy to present a negative test and to wear masks when visiting customers” and will bring this to the RTO team, to discuss any global exceptions to our approach, when we see the situation improving and wider approval of business travel opening up again.[104]The Claimant said, in his statement, that the main part of his role was being out in the field, rather than at home. He said that he felt under pressure already because of the discussion with Mr Rouchouse, and this exacerbated that feeling. He says that the Respondent’s policy was “US based”, and suggests at distinctions between such regime as applied in the United States and that which applied in the United Kingdom.[105]My findings on this are as follows: I must approach the temptation to look with hindsight at the time of the Covid-19 pandemic with caution. Memory of the different restrictions that applied at different times is apt to be inaccurate.[106]The Claimant’s reference to the Respondent’s policy being “US based” may be accurate, insofar as it goes, but is simplistic and unhelpful. Simplistic because it treats the UK as having had a single regime of antiCovid measures. In fact, different regimes of anti-Covid measures applied at different times in England, Wales, Scotland and Northern Ireland. I have no knowledge of, and heard no evidence or argument about, the situation in the United States, but it would be surprising if a uniform regime applied across that vast, federal country.[107]I think the Claimant did not feel so much pressure to have a vaccine, as a wish to avoid the loss of the trip to Hawaii. And it seems to me that the real point here is, did the Respondent do anything that was unreasonable?[108]I think it did not. The Respondent having a policy that required a vaccine for company travel is not, I think, an unreasonable thing at the time of the Covid-19 pandemic. I was not told that the Claimant had any relevant scientific expertise, and for him to cite scientific data to others in the Respondent also lacking relevant expertise, was to invite them to engage in a debate that no party was equipped to undertake.[109]The Respondent’s policy was reasonable. It did not require the Claimant to be vaccinated. His wish not to be vaccinated was respected. There were consequences to that, but those consequences were the result of a reasonable policy. If that meant that the Claimant felt pressure to be vaccinated, that is unfortunate, but decisions have consequences. Mr Clay discloses the Claimant’s unvaccinated status[110]It is not in dispute that Mr Clay disclosed to a customer that a member of the team was not vaccinated, on 08.03.2022. He did so in the context of asking the customer what its vaccination policy was. The customer responded by saying that her understanding was that only a negative lateral flow test, and the wearing of facemasks, were required.[111]Later that day, Mr Parkinson wrote to Mr Clay; Tyrone, We already knew that Leonardo UK does not require visitors to be COVID19 vaccinated, because for the Sep 2021 visit they sent us their visitor policy document which makes no mention of vaccination. I distinctly remember discussing this with you. You should not be disclosing with a third-party the fact that a Wind River employee is not COVID-19 vaccinated without their prior consent as this is private information.[112]Mr Parkinson emailed Ms Tyson and Mr Rouchouse later that day, in the following terms: Tyrone has volunteered information to Leonardo that one of our party visiting Leonardo next week is not vaccinated, when Leonardo hadn’t even requested this information! (see email thread below) I am very annoyed about this, because as you will recall, Tyrone previously misrepresented Leonardo visitor policy and falsely claimed that the Leonardo policy required vaccination, when it categorically does not.[113]Mr Rouchouse responded6: I’m chocked and I think your email is perfectly right. Employees are clearly not allowed to disclose medical information about others. I think he should get a strong warning from People Team for doing this.[114]A short time later, Ms Tyson responded: Hi – sorry, but this has crossed a line Nico. Just sent a quick sync in diary for us tomorrow morning. I know Tyrone is on holiday this week but we do need to discuss this.[115]I find that the Respondent reacted appropriately to Mr Clay’s actions. It saw through what some might have thought, at first blush, an innocent query about a customer’s Covid policy. It appreciated the gravity of Mr Clay’s disclosure. 2022 trip to Hawaii[116]In 2022, the Claimant was invited to a stay at a resort in Hawaii. The dates for the trip were 5th to 10th October, and the trip was referred to as the President’s Club.[117]This was a reward for the Claimant’s over-achievement for the Respondent. 6 The time of the email is earlier than Mr Parkinson’s email, but the text of the emails indicates that the sequence I have is the correct one.[118]On 28.07.2022, the Claimant received an email, commenting that he hadn’t submitted the necessary form for the President’s Club trip, and asking him to do so by the following Monday.[119]On 02.08.2022, the Claimant responded, saying that: Federal regulations regarding vaccination status prevent me from travelling to the US. It's not that we would not like to go, but the chosen destination forbids us from doing so.[120]The Claimant asked if there were any alternative arrangements for people who, like the Claimant, chose not to be vaccinated against Covid- 19. On 05.09.2022, Mr Parkinson emailed Laurel Ludwig, who appears to have been in charge of the President’s Club arrangements, and another colleague: Bruno Chaves asked me today if there any alternative arrangements for President’s Club winners who are prevented from travelling to US due to current US government COVID-19 entry requirements (vaccination)? I anticipate that he may not be the only Wind River colleague in this situation. I am aware that for previous President’s Club event (except when cancelled by Wind River due to COVID-19 pandemic), colleagues who have not been able to attend due to their own decision / other personal commitments, have not received a cash alternative and/or time off. However, given that Bruno is not able to attend due to current US government policy, will Wind River treat this differently?[121]The response came on 13.09.2022, and was as follows: Thank you for your concern and patience while this was discussed. However, the policy stands and Wind River will not be offering compensation for those who are not attending.[122]The Claimant told me, and I accept that he asked for a monetary reward or 4 days off in place of the trip to Hawaii. He was granted neither. He went to a safety conference in York, which the Claimant seems to have regarded as a poor substitute for a trip to Hawaii.[123]I do not consider that the Respondent acted unreasonably on this matter. It seems that the trip to Hawaii was a regular reward offered to employees whose performance had been outstanding. I have no doubt that it is one whose recipients appreciated it. But the Respondent was not responsible for the vaccine requirements imposed either by the state of Hawaii or the United States federal government – I was not told which, and it does not matter.[124]The simple fact is that the Claimant chose not to be vaccinated against Covid-19. That was his choice, and he was free to make it, but it seems to me to be unreasonable to demand that the Respondent should alleviate the consequences of the decision that he freely made.[125]It may be that the Respondent could, with relatively little difficulty, have found some other way of rewarding the Claimant’s overachievement. But no witness was questioned about that, and no evidence was led about it, other than a reference to what happened the previous year, when I understand the whole trip had to be cancelled. That is not comparable with one employee – there was speculation that others may have been in the same position, but I heard no evidence about that – choosing to make the decision not to be vaccinated.[126]I consider the Claimant’s position to be exactly that described in Mr Parkinson’s email – he was an employee unable to attend due to his own decision. It was not unreasonable of the Respondent to decline to absolve him of the consequences of his own decision. February 2023 appraisal[127]In February 2023, Mr Parkinson told the Claimant that he had recommended him for promotion to Senior FAE status, but this had been rejected. In his statement, Mr Parkinson said: …he needed to demonstrate actions and achievements consistent with the more senior role. Bruno was not discriminated against due to his communications style. In order to improve his case for promotion the following year, I set him an objective in June 2023 which would enable him to demonstrate capabilities of a Senior FAE by creating a demo for a conference in October 2023 (see pages 364, 275 to 276 of the bundle). However, he failed to meet the objective, which I recorded in his Q4 2023 review, and I explained to him that he had needed to meet this objective to be considered for promotion (page 305 in the bundle);[128]In a report dated 13.12.2023, Mr Parkinson included the following: 1. Reflect on your recent performance … Manager Paul Parkinson Bruno has achieved more in-person customer meetings as the year has progressed, but the significant majority have been with Jonathan Harwood (28 in-person with Jonathan, but only 9 in-person with Tyrone Clay) This indicates that he continues to be underutilised by Tyrone. He has invested time and effort in discussing Pablo Linux with targeted customers. He has also continued to evangelise Wind River Studio with A&D customers. Bruno ran out of time to complete the container demo for high integrity Software Conference 2023, it would have been worthwhile using the existing basic container demo as a backup, or even using a video recording instead, in order to have something visual to draw delegates to the Wind River exhibition stand. … LEADER ONLY: PERFORMANCE 4. Do you have any concerns about this employee’s performance? Manager No: Paul Parkinson Bruno has significantly overachieved his 2023 quota, but his achievements in individual areas have been inconsistent at times. He did extremely well to secure the BAE Toughbook design win against strong competition from Lynx Software, but he failed to achieve the objective that I set to demonstrate VxWorks containers at HISC 2023 (despite having over 3 months notice), and did not implement a backup plan despite being encouraged to do so. He is also frustrated as he does not think that there is a realistic possibility of him achieving promotion to Senior FAE grade (P5). I f have explained to him that he needs to meet key objectives (e.g. HISC container demo) and to really stand out in terms of contribution, innovation and leadership to enhance his visibility and reputation within Wind River.[129]I did not, of course, hear from Mr Parkinson.[130]The Claimant said in his statement that he was told he “needed to do something special” to achieve promotion and he felt that the barrier for him was higher than for other employees.[131]This is a question which was not addressed in the oral evidence before me.[132]I accept that the Claimant was keen for promotion, and actively sought it. I accept that his performance appears to have been outstanding in many ways. I have already expressed my thoughts on the probable relationship between him and Mr Parkinson, which accentuates the positives in Mr Parkinson’s expressed views of him.[133]All that said, I am not satisfied that the views expressed in Mr Parkinson’s report are wrong. Notwithstanding that he may have been somewhat impatient with the Claimant, he was quite willing to praise significant elements of his performance. That someone is outstanding in one role, does not mean they are appropriate for promotion to another. And Mr Parkinson recommended the Claimant for promotion – it was someone else who took the decision that he should not be promoted. Customer interaction level[134]On 14.04.2021, the Clamant attended a meeting with Mr Rouchouse and Mr Parkinson. The following day, the Claimant sent a lengthy email to someone not identified in the hearing before me, which included the following: …Bruno Rouchouse then scheduled a 1-1 with me on the 14th via sending me an email on the 12th in the morning, no topic, no context given. I asked my Manager if I had anything to worry about, but he did not reply, which left me anxious for 2 days until the meeting wondering if I should be looking for a job. Bruno then informed me that it was my last chance, that he liked me but if I did not like the way things are done, I should leave the company. I did not manifest anything, I stated I enjoyed the training, did not manifest disliking anything, and that I am enjoying what I am doing. I don't believe it was Bruno's intent to hint that I should leave, however it did make me uncomfortable. He told me "we are not saying for you to shut up, it is not what we want, keep engaging but on the right channels" We then discussed that I should have been more involved in one of the business opportunities that we were working with, which was mostly handled by my manager as it started out as a "UK eyes only" project, and I only acquired my UK nationality after we started working on it, so I was not privy to many of the initial conversations. Also my account manager kept me pretty much in the dark with regards to his activities(only discussing in general terms) so only after September 2020 I started getting more engaged with this project. This project was one of the most complex ones my manager worked in which is also reflected in the burden he took, whilst I focused on other areas of the business. In fact my manager shouldered most of the work my account manager should have done. I have always asked my manager the following: - can I do anything? - can I help someone? - do you need me to do anything? So it is not like I am shirking work, quite the contrary. Bruno then proceeded to enquire about the pipeline(the volume of business planned ahead) and that mine was looking empty. I told him, I have been dealing with some of the sales aspects of the smaller deals even though this is not my responsibility and that I am actively engaging with customers as much as I can. And I was told previously I should not engage in sales, only in pre-sales(technical aspects), this by my manager. However unless the account manager starts engaging with the customer base, doing project reviews and getting us both in front of customers, there is little I can do. Due to the structure of Wind River, I am dependent on my account manager. So for the last 3 nights I am sleeping poorly. I feel anxious and stressed. As sales people we have to engage socially in the company, however how can I do this now? And if I don't, I am perceived to be anti social, if I do, someone might be offended by god knows what...[135]I am satisfied that everything recorded above was said in the meeting. However, nothing came from the meeting, and I am at something of a loss to see how it helps me, other than contextually. I can see no consequence having flowed from this meeting. Pay[136]Of the Claimant’s complaints, those raised in issue 6.1.7, and the entirety of issue 9, relate to his pay.[137]The question identified by EJ Bax in issue 9.1 is one far more easily asked than answered. I have commented on the impenetrability of the contractual documents above. In closing, Mr Ryan for the Respondent offered the mitigation that; Clearly the commission scheme took up much of the ET’s time and whilst it may be a scheme which is not familiar to all UK practitioners, it is a familiar to US/global businesses and there is no suggestion made by either party that this type of commission scheme (Goal letters supported by T&Cs) is out of the ordinary or not in line with global business with headquarters in the US.[138]The contract expressly states that it is governed by the “laws of England”, which must mean England & Wales. It is expressly stated, in its heading, to be “for UK-based employees only”. It should not be beyond the wit of any enterprise to prepare contractual documents the understanding of which does not tax an Employment Tribunal to the extent that these documents have. Quite how a person without legal training is supposed to make head nor tail of them, is beyond me.[139]In considering this, at this stage I have made clear to the parties that I do not propose to consider the quantification of any entitlement I may find the Claimant to have. That would be a question for quantum. At this stage, I am just dealing with liability.[140]What, then, were the Claimant’s contractual provisions relating to his salary?[141]Firstly, he is entitled to a salary – see clause 5.1 of the contract.[142]Secondly, he is entitled to participate in the Commission Plan. The terms of that are expressly said to be in a separate document – see clause 5.2 of the contract.[143]Thirdly, the Respondent had a discretion to make other payments – see clause 5.5 of the contract.[144]Only clause 5.5 refers to discretion. I therefore find that the entitlement to participate in the Commission Plan was not discretionary.[145]Clause 5.2 refers to target quotas, to be defined quarterly. Interpretation of the CP[146]I have set out the relevant terms of the CP above.[147]“Variable Compensation” is not adequately defined in the CP. It is said to “include” “Quota Commission”, “Management By Objectives” and “Special Performance Incentive Funds”, each of which may be included in the total Variable Compensation. This invites a number of questions: what else is included, or may be included, in Variable Compensation? That the things listed are “included” in it means, I find, that there are other things that may also be included. So, what are they? And how, and by whom, is it determined whether the things that may be included, be they listed or not, are to be included?[148]The contract refers to “variable target earnings”. This term is not defined in the CP, despite it being included in the very clause of the Contract that references the CP.[149]“On-Target Earnings” are defined as a combination of salary, Quota Commission and MBO, with reference to the total compensation as specified in the offer letter.[150]It is highly unsatisfactory that so important a term as “variable target earnings” is not defined in the CP. That it is not capitalised in the Contract may be designed to deprive it of a specific meaning, but I do not think that can work, given that it is said in the Contract to lead to a specific sum, and linked to the CP.[151]Approaching the CP as a reasonable objective interpreter of it, and interpreting it in a way as to give business efficacy to the arrangements, I find that the Claimant had a contractual right to the Quota Commission, as defined by the CP.[152]I find that the “variable target earnings” referred to in the Contract means the salary, plus the Target Incentive as defined by the CP.[153]I find that this means that commissions earned from SPIFs are not part of the variable target earnings provided for by clause 5.2. I find that SPIF payments fall within the discretionary provisions of clause 5.5. I note that that the CP provides that SPIF incentives are expressly said to be awarded at the discretion of sales management. That discretion must, however, be exercised reasonably.[154]I find that MBO payments are not discretionary. They are not said to be discretionary in the CP. They are said to be based on targets set by the relevant manager. If a manager sets such a target, and if that target is reached, the corresponding payment must be met.[155]I note that the CP includes “Annual Contract Value”. Although a paragraph is devoted to defining this, I do not find the definition to be of any assistance whatsoever in deciding the remuneration to which the Claimant was entitled.[156]“Goal letters” are defined. These are important, because the CP expressly provides that: …Failure to e-sign the Goal Letter document will mean that commission payments will be accrued for, but not payable to, the Plan Participant until the Goal Letter document is e-signed.[157]The CP has a specific provision dedicated to discretion. It provides that the “variable compensation” provided for by the CP: …is part of a discretionary program, both as to the amount of any payment made and whether a particular payment is to be made. The Company reserves the right to amend, change or discontinue this Plan at any time, for any reason, with or without advance notice. Final interpretation of the terms and conditions of this Plan as they may apply to any one individual Plan Participant, matter or circumstance will be made jointly by the Chief Financial Officer and Corporate Vice President of Worldwide Sales, or their delegate(s). All such Plan interpretations are considered final.[158]I have already observed that “variable compensation” is not adequately defined by the CP.[159]The apparent provision that, notwithstanding the lengthy document, the entitlements for which it provides are discretionary, and that the Respondent is free to decide not to make any payment (other than basic salary) according to its whim, is striking, and one which Mr Ryan did not press upon me. Instead, he contended that the correct approach was that any discretion applied up to and until an employee signed the goal letter. At that point, the employee became entitled to the payments provided for by the goal letter.[160]I think this is probably right, insofar as it goes. The CP refers to commission payments accruing before a goal letter is signed, although not being payable until it is signed. But without the goal letter, there is no way of knowing whether commission will be earned or not. I find that the discretion applies as follows:(a) The Respondent has a discretion to set quotas and MBO targets, which it does in goal letters;(b) Once a goal letter has been issued, but before it is signed, the employee is entitled to accumulate commission on the basis set out in the goal letter. I think this must be the meaning of the words relating to goal letters in the CP;(c) To contend that the Respondent is free to ignore even unsigned goal letters would be inconsistent with the more specific provisions relating to such letters in the CP;(d) Any contention that the discretion allows the Respondent not to pay a commission that an employee has, on the face of the documents, earned, I would reject. Such a discretion would be inconsistent with the scheme of the Contract itself;(e) It was not contended before me that the interpretation provision in the CP meant that the interpretation of the documents was not a question for the Tribunal. GE Aviation commission in 2021 and 2022 (issue 9.2.1)[161]The Claimant contends that he should have been paid commission on a deal with General Electric. His position, set out in his statement, was that this was his account, and fell within his territory. Despite that, the commission was assigned to one Karim Dioury, in the Industrial Team. He says that the justification given to him was, that he had earned enough commission already for the year 2022, due to overachieving on his targets and therefore his earnings were significantly more than projected.[162]Mr Parkinson, in his statement, says that: Bruno was not entitled to commission for the ‘Avionics Edge’ (also known as ‘Edge Avionics’) at GE Aerospace as it was not part of Bruno's territory or quota. The defence project discussions stated in 2020, and as some aspects are classified as UK OFFICIAL-SENSITIVE, Bruno was not permitted to attend meetings which discussed these aspects, as he was a Portuguese national and did not hold UK citizenship at that time. Bruno did not attend any of these 24 customer meetings and did not contribute to the technical pre-sales deliverables documents. Instead, I personally attended the 24 customer meetings (on-site/remote) during the pre-sales engagement and worked on the technical pre-sales deliverable documents myself (see pages 365 to 367, 172 to 180, and 248 to 250 in the bundle). In February 2022, I formally requested sales credit for the Edge Avionics opportunities, but I did not receive this when the deal closed in December 2022 (see page 230 in the bundle);[163]In fact, the Claimant did do some work on the deal in question. He acquired UK nationality at some point, which was not identified before me but was during the currency of the negotiations for the deal in question. But I find that the work the Claimant did in relation to the deal was minimal, consisting of a few telephone calls and two out of 26 meetings.[164]The evidence around this question was less than clear. The Claimant said that he was involved in the deal until Mr Sfingopoulos took it away from him. He said that Nicholas Costa became involved in the deal. Challenged that he wanted to replace Mr Parkinson part way through the deal, the Claimant said that that’s what he’d been hired to do. He disputed that the deal had been allocated to the Industrial Vertical, although he agreed that that did happen, but said the deal had initially been assigned to A&D. He agreed that Mr Parkinson had provided the majority of the technical support.[165]As cross-examination progressed, it was put to the Claimant that he was contending that he was entitled to commission because he had attended 2 meetings. He disputed this, saying that the commission should have been allocated to A&D UK, even if he didn’t get it.[166]It seems to me that the starting place is to look at the relevant goal letter. The Respondent has a discretion to decide what goals it is going to set for employees. That must include identifying what matters will count towards the achieving of such goals.[167]The goal letter for 2022 is far from a model of clarity. It contains nothing that assists me in identifying whether a particular deal is to be assigned to a particular vertical, or whether the Claimant had a right to commission on a particular deal.[168]Is there anything in the conduct of the parties that assists?[169]There is email correspondence from February 2022.[170]On 15.02.2022, Jeannine Pires to Jegan Arthanari and Ravi Mantripragada. Ms Pires wrote: With regards to these EMEA A&D and EMEA Industrial quotas, I am not able to break out A&D vs Industrial quotas for Stein and Scafidi because their quotas were done almost entirely at the territory level which has mixed accounts. … If you still want to divide up their quotas, the only thing I could think of would be to determine what % of the 2021 bookings (not going to the IAE Renewals this year) were A&D vs Industrial in 2021 and apply that same ratio to these Quota Groups. … It seems that most of Sophia’s A&D account bookings from last year are being handled by the IAE this year. Same with most of Scafidi’s accounts. So I think it makes more sense to take Sophie out of the A&D Group and take Scafidi out of the Industrial group. Sophie’s full quota would go into the Industrial Team Quota. And Scafidi’s full quota would go into the A&D Team Quota….[171]There are some tables in the emails, which include Messrs Clay and Costa, but these are proposals.[172]Arthanri responded the following day, saying: +EMEA local leadership team[173]Later on 16.02.2022, Mr Rouchouse responded to Ms Pires, in the following terms: Hi Jeannine, Just reviewed this with Paul and this is actually quite simple to solve. Here is what it should look like:[174]There follows a table, in which the Claimant is identified with the regions “UK A&D (Tyrone Clay without overlay)” and “EMEA A&D (Clay, Kauth, Karlsson, Scafaldi)”.[175]Ms Pires thanked Mr Rouchouse for this, and asked him to share Paul Parkinson’s mapping with her as well. Mr Rouchouse responded: Sure, let’s keep a similar mapping as last year: - 70% EMEA A&D: Tyrone Clay, Robert Kauth, Fredrik Karlsson and Salva Scaffidi. Please add GE Aviation (GE A&D component) as Paul is the FAE on this account (native UK citizen needed). - 30% EMEA Industrial from Nico Sfingopoulos which includes automotive. Hope it’s clear. Let me know otherwise.[176]Again on 16.02.202, Mr Pires emailed Mr Rouchouse and Arthanari, copying in Mr Mantripragada and Mr Parkinson, saying: Hi Bruno and Jegan, I cannot add GE Aviation quota because all of the quota was done on the territory level for Costa and there are not even any renewals assigned to him. The only quota we have for these accounts are going to the IAE Renewals.[177]There followed tables, but I do not find these of assistance.[178]On 17.02.2022, Mr Parkson responded, in the following terms: If it’s not possible to assign an individual account due to the quota reasons mentioned by Jeanine, would it be possible instead to receive sales credit for an specific GE Aviation deal? I am referring to the Avionics Edge Computer (aka ‘secure silicon’) project: Avionics Edge Computer - HVP seats and training (SUBJECT TO NDA) Op-287312 Avionics Edge Computer - Services (Phase 1) - SUBJECT TO NDA Op287313 I have been working on this project with GE Aviation and their end customer UK Ministry of Defence (MOD) / Dstl since December 2019. The project is under 4-way Non-Disclosure Agreement between Wind River, GE, UK MOD and AdaCore. Only British citizens are allowed to participate in some of the sensitive discussions, which is why I have been involved rather than Bruno Chaves (he did not have British citizenship at the time). You can view my customer interactions with GE Aviation and DSTL under the following FAE projects: GE Aviation - Avionics Edge Computer (SUBJECT TO NDA) DSTL - Avionics Edge Computer Project (SUBJECT TO NDA) To be completely transparent, GE Aviation (prime contractor) submitted their bid/proposal (incorporating WR & AdaCore) to UK MOD a few weeks ago, and we expect to hear the outcome in March/April timeframe. The actual deal size could be significantly larger than what is currently forecast in SalesForce, but this is dependent on MOD budget constraints.[179]I find that the Claimant’s involvement with this deal was minimal. I do not find that there is any basis for finding that he had a contractual right to be credited with commission for the GE deal. There is nothing in the contractual documents that identifies this deal as being one in relation to which he would be entitled to commission. There is nothing in the parties’ conduct that would point to that conclusion. Leonardo (issue 9.2.3)[180]In the course of 2023, the Claimant’s team was selling a product to Leonardo UK, and also discussing a deal with Mercury, a Swiss-based hardware provider to Leonardo. The Claimant says that, in order to avoid internal disputes, an agreement was reached to a 60/40 split between the UK and Germany teams on the commission on the deal. On 12.04.2023, Mr Clay emailed one Roberto Valla, and a number of others, recording that this had been agreed with “Robert, Bruno and Stephan”. I take Bruno to be Mr Rouchouse.[181]Later that day, Mr Valla responded in the following terms: @Clay, Tyrone – Glad to see the UK-1 and CENTRAL EUROPE account teams have found a mutually agreeable “split arrangement” for orders associated with Project P1171 that will be directed by (redacted) to flow to Wind River through (redacted)7. @Kauth, Robert – Once the relevant PO is received and the order is booked by WR, please notify “+SalesCompAdmin” (Jeannine et al) of this split so that quota recognition and commission compensation may be adjusted in accordance with this “split arrangement”.[182]On 27.10.2023 Mr Valla emailed Mr Clay, Mr Parkinson and Robert Kauth, in the following terms: Paul and I have discussed the subject and with regards to the ongoing Mercury Intel Xeon BSP certification sales campaign at Mercury we concluded that a compensation split between the CENTRAL EUROPE and UK-1 teams is not warranted. We have reached this conclusion because the Mercury Account Team members(a) have performed all the pre-sales work to date related to the BSP (which is distinct from the Additional Drivers),(b) are continuing to lead engagements with the Client in Geneva, and(c) are responsible for bringing this opportunity to a successful conclusion. With regards to future P1171 work packages that may be contracted by Leonardo directly to Wind River or through Mercury to Wind River – possible examples may include part of the work to support RDMA and TFTP in 2024 – we encourage you to discuss between the two of you and, once formulated, to bring forward a joint recommendation on how to address such scenarios. As always, Paul and I continue to encourage all Wind River account teams to collaborate whenever possible to drive A&D growth across EMEA, and beyond. ONE Team, ONE Fight! 7 When copying and pasting, the redactions in fact became “Leonardo” and “Mercury”.[183]This is a clear back-tracking on an agreement that had been reached some months before.[184]In his live evidence, Mr Hofmann said that the agreement would still need to go through the sales operation committee, and could be rejected by that.[185]Neither of the parties addressed me on the question of managerial instruction. There is, of course, an implied term in a contract of employment, that an employee should follow reasonable instructions from management. In the Respondent’s business, it seems to me to be likely, or at least possible, that management will give instructions to employees that will impact on commissions. Especially given the laxness of definition in the contractual documents, an agreement such as the one reached in April 2023 is on one which a reasonable observer would expect the parties to the contract to be able to rely. If different teams reach such an agreement, one would expect the result to be reflected in working arrangements dividing up relevant tasks between teams, so as to avoid duplication or internal rivalry.[186]In this case, something like that did happen. As the Claimant puts it in his statement, “…my team agreed to step aside to avoid any internal competition due to the agreement reached in April 2023….”.[187]Mr Hofmann said that, as the deal panned out, the end result did not justify the split. He said that there were multiple customers and it is not for the Respondent to determine what each of them wanted to buy. He said that it should not be a sales decision as to what the customer wants to buy.[188]That is fair enough, insofar as it goes. But it overlooks the fact that the split was agreed at a time when it appeared fair to the parties involved. It was not a split as to what the customer would buy – that obviously was a decision for each customer – but a decision as to how the commission on whatever was bought, would be split between internal teams.[189]On the one hand, it may be understandable that the Respondent does not wish to pay the Claimant commission on a deal on which his team agreed to step aside. But, had it wanted to, the Respondent could have said, we’re allocating this deal with X team, and they will get the commission on the entirety of it. Instead, the Respondent allowed the Claimant to step aside from a deal in which he would, I find, otherwise have participated. The Respondent did not do so by allocating the entirety of the deal to a different team. It allowed all concerned to believe, for months, that a split on the commission as agreed would be respected.[190]My finding is that the agreement of April 2023, and the actions and decisions taken consequent to it, were, in substance, managerial decisions with which the relevant teams were expected to abide. I find that this created an obligation on the Respondent to respect the agreement in April 2023.[191]If I am wrong about that, and the Respondent retained a discretion not to honour the agreement, I find that it was unreasonable to exercise any such discretion not to honour it. All concerned had operated for months on the basis that that was to be the split. The Claimant’s team had stepped aside. There was no apparent request from the German/Swiss team for the agreement to be revisited as a result of that.[192]I therefore find that the Claimant was entitled to commission on the Leonardo deal, as per the April 2023 agreement, subject to what follows. If the agreement means that the Respondent made a bad bargain as a sop to some employees, that is nonetheless the bargain that it made and one that it must honour.[193]Having determined that the Claimant was entitled to this commission, and the other issues of fact and law relating to liability, I invited the parties’ submissions orally on whether any issue going to time needed to be considered.[194]The Respondent said that I needed to determine when the Leonardo commission was payable. If it was payable before 09.01.2024, it risked being out of time.[195]Mr Ryan contended for the Respondent that the decision not to pay the commission was communicated in Mr Valla’s email cited in para 182 above, on 27.10.2023. That is true, insofar as it goes.[196]Mr Ryan then contended that the wage slips in the bundle show that payment was made on 26th of each month, and that, as the payment was not made on 26.10.2023, that was the date on which the commission should have been paid, had it been due.[197]Mr Ratledge, for the Respondent, pointed out that the Claimant’s evidence in his statement was that the commission would have been included in his January 2024 pay. He also pointed to a document in the bundle, the format of which does not allow me to reproduce it in these reasons but which was at p459 of the bundle, which showed that the deal in question was closed on 21.12.2023.[198]Mr Ryan responded by saying that, even if that were correct, it would mean that the pay would be included in the December pay, not that for January.[199]My findings are as follows: the Claimant’s evidence, that the commission should have been paid in January 2024, was not challenged in cross-examination. That he was told that the commission would not be paid in October 2023 does not, it seems to me, matter, What matters is, whether or not it was paid. There is a difference between someone being told that their employer intends to breach a contract in future, and the time when the contract is, in fact, breached.[200]I observe that the date on which the deal was closed does not necessarily mean that that was when the Respondent was paid on the deal.[201]Neither party took me to any provision in the documents that went to when the commission should have been paid, nor dealing with whether commission became payable on the deal being closed or on the Respondent being paid, nor to anything dealing with cut-off dates in each month by which commission had to become payable before it was included in the relevant month’s pay.[202]In the absence of any guidance from the documents, and any challenge in cross-examination to the Claimant’s evidence on this point, I find that the commission should have been included in the Claimant’s January 2024 pay. His claim in respect of this commission is therefore in time. January 2024 renewal and SPIF (issues 9.2.4 and 9.2.5.)[203]In August 2023, Thomas Rosen emailed a number of people in the Respondent, with updated provisions for bonuses on multi-year deals. The email was in the following terms: Team, lets go an bag those MY deals for 2H! Please update me on the status of the nominated MY deals and/or any additional ones. Effective immediately; there is a 2H multi-year bonus put in place to drive longer-term deals to support closing the revenue gap. This is a substantial increase in the Y2+ commission payouts that I hope your teams will be excited about. The mechanism is the same. It is a cash commission bonus, not quota credit. We’ve also introduced a bump for new customers. This payout level is triggered for any customer that is not currently one nor hasn’t been a Wind River customer in the past.[204]On 27.10.2023, Mr Clay remailed the Claimant, and Souhaiel Schmidt, in the following terms: Thomas called me earlier and told me that BLB has given us a spiff. If we bring home the 3 year deal for the Leonardo renewal, We get 100% quota recognition on the whole deal. I just spoke to Catriona and she is happy to do it.[205]The Claimant says that, as a result of this incentive, his team was able to convert a renewal that was scheduled to start on 01.01.2024.[206]On 21.12.2023, the Claimant queried the status of the SPIF with Mr Valla. The exchange went as follows: Hi Roberto What is the status on the spiff? If seems unfair that the team that pulled 5million to cover the 100million hole will lose the incentive for 1 second from the midnight to the first of January. Is the decision from the revenue recognition team final?[207]Mr Valla responded: If you are referring to the 4Q2023 Revenue SPIFF for turning opportunities valued at $1M+ ACV into multi-year deals, indeed the decision by Finance and Sales leadership is final. Have you spoken with Tyrone about it?... he is fully familiar with all the background and battles we fought.[208]The Claimant responded that same day: I was asking since I haven't heard anything about it during the last calls.[209]The following day, Mr Valla replied: We discussed the SPIF on our call on 13 December, but I will try to summarise my perspective below which may provide some context. The primary purpose of the Multi-Year SPIF is to help Wind River to increase revenue within 2023 in order to meet the company’s financial targets for this year. It’s important to understand the difference between bookings and revenue. Sales teams receive quota credit for the annual contract value (ACV) for purchase orders received, but Wind River only receives revenue (payment) after we have delivered products and services (or a portion of them). The Revenue Recognition team determines how much of the contract has been fulfilled and this is reported in Wind River revenues to our parent Aptiv, who in turn report this as part of their quarterly earnings. The Leonardo license subscription for the development seats starts on 1st January 2024 which lies outside the 2023 financial year, so Wind River cannot include this in 2023 revenues. However, the portion of the subscription relating to Process Automation which starts in December 2023 can be included in 2023 revenue. So, this deal will be worth hundreds thousand dollars for the current financial year rather than the full PO value of $3.26m, with more revenue recognised in 2024 and following years. You will still receive quota credit for the deal, which will be significant, especially as you are into PCR accelerators having already achieved your 2023 quota target. I would advise against pursuing this further, because I do not think this would be well-received by Doug, Jegan and Finance given that:(a) it’s a discretionary bonus;(b) you are already into accelerators and have earned a lot more commission than your colleagues, some of whom have had a difficult year; and(c) Wind River leadership had to make the very difficult decision to let 140 staff go last week.[210]Although identified in the list of issues as bonuses in issue 9.2.4 and SPIF in issue 9.2.5, it seems from the correspondence, and from submissions, that both 9.2.4 and 9.2.5 relate to SPIFs.[211]Mr Ratledge in his closing submissions recognised that SPIFs are defined as discretionary. But he says that the emails of 01.08.2023 and 27.10.2023 turned SPIFs insofar as the deals in question were concerned, into contractual obligations.[212]I do not agree. There is nothing in those documents that turns SPIFs into anything other than discretionary payments. March 2024 targets[213]In 2024, the Claimant’s targets were increased. His overall target went up from US$6.3million to US$9.5 million. He said in his statement that he believed his targets were deliberately raised to a level almost impossible to reach.[214]After the Claimant had emailed on 27.02.2024, to say that he had had a goal letter retraction email, Mr Parkinson emailed the Claimant in the following terms: Finance have made some corrections to the goal letters, which is why they have sent out updated versions for signatures. I think they noticed the error after I had signed your letter but before they had sent it to you for signature. I’ve just signed your updated goal letter this morning, and although the increase in quota is a lot compared to 2023, the second version of the goal letter is $500k less than the first one. Best regards, Paul[215]On 07.03.2024, the Claimant emailed Mr Parkinson; Hi Paul I saw the goal letter. I have to say over 100% increase without the Leonardo renewal, making my number one of the largest in EMEA if not the largest unless you count management is extremely unreasonable. Without Bluebird deals which by definition are not the norm and appear sporadically, the UK territory consists of 2 renewals around 700k each. On top of that we close smaller deals at a usual maximum of 500k. The UK territory is around 2 Million USD and has been for quite some time. The only thing that allowed us to smash quotas were 2 cert deals, and we just removed the renewals from one of those last quarter and we also took the usual 700k from one of the standard renewals. This means the UK for the next 3 years is a 1.3 million dollar territory(including 500k of new deals) When I joined I think the target was 2.9 million USD back in 2019 – correct me if I am wrong as I can’t find the goal letters anywhere – we reached 1.5 million as there were already multi year deals from the years before which meant that 2019 was going to be a bad year. I have around 43% of the EMEA quota as an FAE, and all my other colleagues are senior as well, so I have less chance of hitting my targets and I am on the lowest grade To have targets set at 10.1 million, it’s at least 9x of what we actually have, to get 1 Bluebird and earn possibly 3-4 million USD would be a feat. And as you stated before, it was the first time we hit a large substantial deal like Leonardo in the UK territory. So sign that agreement would mean that I agree with the above. I don’t, it is extremely unreasonable and way outside the norm, this is just a path to profitability by cutting commissions paid which substantially reduces the ability of ever reaching OTE. This has been voiced by Tyrone as well during our calls, and by other members. We can discuss this further in our one to one tomorrow. Kind regards Bruno[216]It appears that the issue was discussed, and after the discussion, Mr Parkinson emailed: I wanted to follow up our discussion today with a written response. I understand that you are disappointed by the significant increase in this year’s quota, but Wind River has an ambitious growth strategy to become a $1 billion business. The 2024 Wind River company quota that has been assigned by Aptiv has been cascaded to worldwide sales teams, and FEO is also assigned the same quota, so we need to accept it and do all that we can to achieve it. The goal letters need to be signed so that they can be processed by Finance and individual employee commission models loaded into Anaplan. This needs to be completed this week in order to calculate commissions payable for February payroll. I disagree with your statement about 100% increase in your quota, it was $6,329,792 in 2023 and is $9,584,618 in 2024, which represents a 51.4% increase (which is a smaller percentage increase than some other members of the team). Wind River expects real growth across territories (i.e. net new business), not reliance on renewals and a single safety certification programme, and some of the UK A&D accounts have not been nurtured in recent years, which is very apparent when comparing individual AMs’ pipelines. In addition, your staff grade does not affect your quota or commission, and I have informed you previously that you are on a generous base salary compared to other EMEA FAEs, including some on higher grades. In my view, the statements made by Tyrone (below) are extremely contentious and unhelpful and would not be well-received by Wind River senior management, so I would advise against repeating them. Best regards, Paul[217]I do not accept that the revision of the Claimant’s quotas was a deliberate attempt to set unachievable targets. The Claimant was obviously highly motivated by commission, as, no doubt, the Respondent intended he and other employees should be. The Respondent had a discretion to set the quotas. In doing so, the Respondent had a balancing act to undertake – too generous a quota risked failing to motivate staff properly and impacting on its profitability, too stingy a quota risked losing staff to competitors. The Claimant had been rewarded very handsomely in commission in previous years. I find the Respondent’s adjustment of the quota was a reasonable exercise of managerial discretion. Disclosures[218]On 05.03.2024, the Claimant met with Carol Tyson. He had a conversation with her. A transcript of a recording of the conversation is in the bundle before me. It includes the following: Bruno Chaves: 0:15 … So we can, we can go with all the shifting of commissions that is unacceptable. If there are internal agreements, when we sign our goal letters, their agreements, when we get the marching orders, these are agreements, and when they tell us, when people tell us to chase the customers, this means that our future income is impacted by this, and then to put caveats and more caveats, and pull out stuff that's not even in the comp plan. That's it's never transmitted to the employees, like the 10% the 10 10 nobody would ever do renewals on that. … Carol Tyson: 1:08 Okay? So shifting of commissions is unacceptable, as in caveats post commission signature is unacceptable. Are you saying that your FY 24 comp plan is not clear to you. Bruno Chaves: 1:27 I'm saying the FY comp plan is a way of simply cutting wages. … It's voiced by all my other colleagues commercially. And this is nothing but a way of cutting wages in order to increase profitability, but if you're going but at the same time that people do this, I've begged and pleaded to go to target the NHS, to target the police with Cloud. I pleaded to open up the box. I volunteered for everything under the sun, and I was told, No, I am A&D, and in A&D, you now get insane targets. So we're going to do the exact same thing we were doing, but somehow we're going to pull, magically, numbers from the air. And this is reflecting in the commissions, and you cannot, or you cannot, substantially, earn any cash unless you actually get out of the box and start working…What they're putting on the table is a miracle, 10.1 target. That's a miracle. That's that's higher targets than anybody. And for me, it's 100% doubling of my quota. … Bruno Chaves: 3:13 It's 100% is unacceptable to any sales team. And on account of all of this. I am stressed beyond the wazoo…. Bruno Chaves: 4:16 because it goes against the letter of the contract. So this, sorry, the spirit of the contract, which we are sales people, it's not optional. And Paul sometimes likes to say the words, oh, the spiffs are, what is the word he uses, discretionary. It's not discretionary. If you tell us to go out the door sign contracts and then don't pay us because you're affecting our income. That's not discretionary at all. From the moment we go out, things are not discretionary when we engage in our customers to do a deal that's been asked for us to do, it could have been discretionary up to that point…. Bruno Chaves: 5:55 And it's one thing to say we want more targets, but then you gotta get more revenue, because for us to pull the insane amount of things that we pulled, first of all, 12 million last year, that's what we brought in the UK. But that means pulling money from the future. We pulled about so 1.7 and then another 1.7 and another 1.7 from the future. So our accounts are bare. Ty's territory is completely bare. He's got a 4.9 million target. There's no way we're hitting that. And we're lucky to if we hit 50% of that. It's insane…. Bruno Chaves: 8:13 I think, really, that's another story. But anyway, so that's, that's all I got to say, Carol, I'm really, I'm raising issues. I've raised them with my manager, and there was nowhere I'm raising them with you. I don't know what you want to do, because this is, this is just the reality of, okay, so, Carol Tyson: 8:39 and I think your communication style. I just sat silent because you do tend to BLEH Bruno Chaves: 8:52 Yes, okay, but it was, it was because it was large. It was not Yeah, it's a lot. I think … It's not only that is the fact that commissions were stolen. Carol Tyson: 11:50 Can you? Can you before you go on and tell me more? Validate for me, am I right or am I wrong? No, that is correct. That is absolutely correct. Carol Tyson: 11:59 So, that's a little bit just to see, help me, to help you and validate if I've got the right analysis or not that is correct. Okay, okay, good. Well, that's the start. That's the start. Okay, so what we're going to go on to say there, Bruno Chaves: the rest of it is the way that the underhanded dealing siphoning off commissions for favoritism because it suits whoever's manager, politically, those are very vague statements to make. They are what they are. Carol, I didn't siphon off commissions. I had it done to me twice now, agreements are not enforced. Carol Tyson: 12:54 And what is the one that really is making you lie in bed and think about it? The Roberto, Robert, Robert Stefan deal and sko is that? Is that the one that really bugs you? Bruno Chaves: 13:08 It's both of them. The GE was substantial. That was like 30k in commission, or 29 case of five that it was huge. And that was with and that was Jagan and Bruno who decided to shift it. And I'm not sure that Bruno is an uninterested party, because if he went to industrial, went to his accounts, they didn't go to Paul and I, and these were our accounts. So the Leonardo one, the Leonardo one, that was Paul's decision. Who did the exact same thing that Bruno and Jaden did? So Paul and Robert did exactly, and Roberto did exactly the same thing that Bruno and Jagan did. We had an agreement, and suddenly everybody forgets the agreement and then pretends that they didn't know about it, and then when we discuss it, they don't enforce it. And me and Ty were also penalized on some account recovery because some money was then shifted at the beginning the year prior to all of this, shifted to the other account. … Carol Tyson: 8:58 what I would advise you to do, and I'm taking I haven't got my wind driven hat on right now. I would say to you, as an individual, if this is actually getting to the stage where it's making your stomach crunch and it's stopping you from being able to drift off and get good sleep, sleep that prepares you and allows you to just feel fresh and joyous in the morning. One of the things that I'm sure you've gone through with your discussions with your guess we'll say counselors. I know that you've undertaken a lot of self development and introspection over the last two or three years. So one of the things that is often very good to have this pencil in your hand and a piece of paper and to really just try to take all of those different aspects that you've just. Fast and really try to get some structure. And I think identifying what's more important, and right now, for me, listening to you, what's more important is that you get assistance and support to get back to some level of balance, because it's very clear right now when, when anyone is quoting things that happened three years ago as part of a grievance today, it shows that there is a lot of unresolved frustration, anger just real anxiety about it all. None of us can change what happened three years ago. And it sounds like what happened three years ago hasn't really gone away, and, in fact, has got worse, in your opinion, in so many different ways. So I think I've asked you a couple of times, what is it that you want me to do? And you've said, I'm really not quite sure I wanted you to listen. I've done that. I think really, if I had to repeat this to someone else, your real issue today is on top of all of your frustrations with Tyrone, the focus of what you're allowed and not allowed to work on, really, what is bugging you right now is you don't see A path to making a decent living this year. It's not only that is the fact that commissions were stolen. Carol Tyson: 11:50 Can you? Can you before you go on and tell me more? Validate for me, am I right or am I wrong? No, that is correct. That is absolutely correct. Carol Tyson: 11:59 So, that's a little bit just to see, help me, to help you and validate if I've got the right analysis or not that is correct. Okay, okay, good. Well, that's the start. That's the start. Okay, so what we're going to go on to say there, Bruno Chaves: the rest of it is the way that the underhanded dealing siphoning off commissions for favoritism because it suits whoever's manager, politically, those are very vague statements to make. They are what they are. Carol, I didn't siphon off commissions. I had it done to me twice now, agreements are not enforced. Carol Tyson: 12:54 And what is the one that really is making you lie in bed and think about it? The Roberto, Robert, Robert Stefan deal and sko is that? Is that the one that really bugs you? Bruno Chaves: 13:08 It's both of them. The GE was substantial. That was like 30k in commission, or 29 case of five that it was huge. And that was with and that was Jagan and Bruno who decided to shift it. And I'm not sure that Bruno is an uninterested party, because if he went to industrial, went to his accounts, they didn't go to Paul and I, and these were our accounts. So the Leonardo one, the Leonardo one, that was Paul's decision. Who did the exact same thing that Bruno and Jaden did? So Paul and Robert did exactly, and Roberto did exactly the same thing that Bruno and Jagan did. We had an agreement, and suddenly everybody forgets the agreement and then pretends that they didn't know about it, and then when we discuss it, they don't enforce it. And me and Ty were also penalized on some account recovery because some money was then shifted at the beginning the year prior to all of this, shifted to the other account. So we were penalized already, because when we suffered some commission, lost to the other account, and then to to on top. So adding on insult to injury, now you agreed to something and then because you think that x and y should be earning more money, and you're going to be holier than the Pope, and you're going to take commercial decisions by your own and that impact your teams in terms of their commissions. Carol Tyson: 14:35 Okay, did you have a amount for the Leonardo Bruno Chaves: 14:42 one? I don't have a amount. Carol, this was a, it's there was a 1.9 million deal. It was supposed to be 60% of that, that will reflect in commission. So be like, I don't know, 1 million deal. But then, because there was part of Leonardo, and given the the. The pay structure last year, and 50% of those, 60% say, you know where this comes from. It's like everything is a mess, and I have zero way to account for what I get paid is just non comprehensible gobbledygook. And it doesn't matter anyway, because they siphon it off to the other accounts. So it's somewhat it's a moot point. I don't know the dollar amount. I actually need to go through some calculations to try to find that out. Carol Tyson: 15:27 And it doesn't really matter. Just, it's just you have the 30k off the top of your head. I thought you might have had a sense of the Leonardo one. I wouldn't recommend that you go away and torture yourself anymore by going through calculations there. Okay, so I'm really just trying to tease out specifics. So your commission to sales ratio is decreasing. Dot, fact, that's how you see it. You're worried about how you're going to end in FY 24 you can't understand how your commissions are earned, because the overall allegation that you are throwing is that there are unethical, underhand, political, Personally driven decisions that siphon off commissions unfairly. Bruno Chaves: 16:22 That's not an allegation. I'm making this as a statement of fact, and it's not the first time either the second time. Carol Tyson: 16:36 So I haven't even gone to the equity, the inclusion, the fairness side of things. I haven't even gone there. I've heard you say it, but there's so much here. Bruno Chaves: 16:52 We can forget the equity and inclusion. Well, we can, we can. Carol Tyson: 16:56 But right this minute, I don't, I don't think that's really the crux of the matter. It's not the number one issue. How formal Do you want to be in this situation? Bruno Chaves: 17:18 In what sense Carol Tyson: 17:22 so you've asked to talk to me. Carol Tyson: 17:25 We know, regardless of me, my character, who I am, and how we understand each other as individuals, I represent the people team. And I'm asking, Is this a formal grievance? Is this just that you felt you wanted someone else to listen and then you're going to go and get a coffee and walk away and feel better? I'm really just trying to get a sense of what you want to happen. Bruno Chaves: 17:59 So first I would say that all grievances are formal. When I engage with my manager and I ask him to do stuff Carol Tyson: 18:07 technically not, technically not when I say grievance, remember, I'm coming from a people team, so when I say grievance, I'm talking about a formal piece of paper that has, as you call them, not allegations, you call them statements of fact. They're recorded and then they are submitted and they have to be reviewed under the grievance process. So you can call it grievance when you talk to Paul. It can be a grievance when you're talking to me now. But I'm asking, is it formal, or did you just feel the need to just share this pain a bit more? So Bruno Chaves: 18:58 there, I have to disagree on the way it's formal versus informal. If a person raises issues with their manager, I'm not saying this under this is not the coffee talk. So when I raise it on my one to ones, they're always formal. It's part of the one to ones. It's not like I meet Paul around the coffee table. This is, this is really something. That's not what I mean. And these are quite formal. … Carol Tyson: 23:21 is, all right. So piece by piece here, I think I would ask you to go away think about how you would want to express what is really bugging you, and I think there are three things. I think it's your ability to earn this year. It's the fact that you feel there has been a clear history and evidence of manipulation of targets, revenue and allocation and credit given to those. And then there's something around you are being restricted in your ability to sell. Bruno Chaves: 24:17 Well, that definitely, but that's nothing new. We're A&D, and we're not meant to be outside, Carol Tyson: 24:22 but you can't, you can't make those statements to me, and then it is a biggie Bruno Chaves: 24:29 It's frustrating, It is because how we're supposed to pull more money if we're constricted, constricted? Yeah, Carol Tyson: 24:45 I can take this, I can put this on my big long list, and I can go and I can talk to Paul and I can talk to Bruno, but ultimately, I don't think that comp plan is changing. I. Bruno Chaves: 25:01 Oh no, I don't expect it to … Bruno Chaves: 26:10 This is a formal grievance. Carol Carol Tyson: okay, okay.[219]I am not satisfied that Ms Tyson seeks to dissuade the Claimant from raising a formal grievance. She did advise that he think about matters he raised, but the Claimant was unloading a great deal of unhappiness on her. To think about what he was saying was sound advice, if only to enable him to make any grievance he wished to present more focussed and intelligible.[220]I also find that this is an example of the Claimant not taking things literally, but rather reading between the lines.[221]On the same day, at 15:56, Ms Tyson emailed the Claimant in the following terms: Hi Bruno – I’ve taken a quick read through. Ultimately this is your analysis, thoughts and views, so good that you have edited to a point where you feel it is accurate. Take some time to reflect, and I will wait to hear further from you Bruno. Meanwhile, haven’t had a chance to look for that additional wellbeing support email that I wanted to find, but will try to have a look tomorrow again. Speak soon Carol[222]Before me, the Claimant said this email was an attempt to dissuade him from bringing a grievance. I do not agree, and this position from him is inconsistent with his insistence that he takes things literally.[223]On 08.03.2024, the Claimant had a telephone conversation with Paul Parkinson, a transcript of which was in the bundle before me. It includes the following: Paul Parkinson: 40:00 So did you want to discuss your goal letter? Bruno Chaves: 40:11 It's an achievable poll. I'll be blunt. So it's actually 9.5 but again, it's 41 what's the total EMEA target? 23 or 22 and a half? Unknown Speaker 40:21 22 and a half. That's increase Bruno Chaves: 40:27 quota. It's 100% increase. Paul, if you take out the the renewals, I got over 100% increase. Paul Parkinson: 40:36 Everybody else is in the same position. Unfortunately, this is just being cascaded to us from active they've decided this is what they want to do this year worldwide in order to hit their $1 billion growth target by whether the date is 2027 we don't get saying that quote, unfortunately, it's just assigned to us. Unknown Speaker 41:01 Yeah, I understand. I'm still not signing it. Paul Parkinson: 41:06 Well, just be aware that the way the process works is after people sign the gold (sic) letters that load that finance loads the model into Anaplan, and then they use that to calculate commissions for payroll each month. If you don't sign your gold letter, it's just going to stay stuck. They won't be doing it. We won't be able to calculate commission payable. So it's your choice, but even if you disagree with it, I would advise you sign it otherwise. I think you're one of the few people worldwide who hasn't signed it because Jegan actually sent a reminder email out this week. Bruno Chaves: 41:51 No, that's fine, I'm actually filing a grievance so Paul Parkinson: 41:56 with HR, yeah, okay, well, I'm not gonna reply your email. Bruno Chaves: 42:01 That's fine. There's some miscalculations there. So it's not 43 that's not 10.1 is nine point almost six, 9.5 84 and 42.5% of the whole EMEA targets, which is still it's almost half of the EMEA target poll. You know, the 500k plus or minus that even that barely makes a dent in the number. The fact that it's so high and 500k very makes a dent in a percentage. It's it's what it is. Paul Parkinson: 42:28 I disagree with some of the statements you came up about the run rate business. The reason why the run rate business is like that is because Tyrone has neglected his territory and he's just relied on his big circle. The recurring revenue used to be a lot higher in previous years. I can tell you in he's either 2015 or 2016 Simon Loco and I did $9 million … Paul Parkinson: 48:45 So what are you going to ask for in this grievance? Unknown Speaker 48:50 Oh, it's a multiple thing. Paul. It's realistically, I might be out of a job when I'm done. But hey, Paul Parkinson: 48:58 no, Wind River wouldn't retaliate, but I would just advise you to be careful how you phrase things. Just don't alienate senior management. Bruno Chaves: 49:11 I think that that ship has sailed in GE, yeah, I think with GE, that ship has sailed. I decision to take from the UK accounts to industrial I don't find it ethical when people discuss ethics and compliance, and we give them, get given these trainings, and then people have expectation set expectations are they like out of the blue, things are not changed. Paul Parkinson: 49:49 what are you referring to with GE? Bruno Chaves: 49:52 GE was UK aerospace and defense account. I was working at Nicholas Costa, and you were working it as well. Yeah, when I went to Nico. So it still was a UK airspace account. I was still chatting to Nico. We're still involved. Nico was the head of A&D at no stage in time were you and I notified of this transmission of commission up to the point where it was transmitted. This is the reality of this. I was never notified of anything until January of that year. Paul, I find this egregious, and I'll be blunt, I do find this grating as well. Paul Parkinson: 50:25 I think you're on thin ice on that one, Bruno, and I'll tell you why. So the reason you weren't involved in the edge opportunity is part of the project are UK official, sensitive. You didn't have British citizenship at the time, so they would only speak to British citizens. So I was involved in that opportunity for three years. I did all the pre sales technical engagement on that. You can look at all the customer interactions in Salesforce, the situation. The reason why Nico was head of via A&D and industrial, he didn't have confidence in Tyrone handling the accounts, that's why he gave it to Nicholas Costa. Unfortunately, when Nicholas Costa left, Nico decided to continue managing it himself, so the sales commission for that opportunity went to Nico. I was expecting to get commission for FeO side of things for that, and it didn't go to me. I understand it went to Kareem dowry, even though his contribution to that opportunity was zero. Bruno Chaves: 51:34 But even I had calls with Nicholas because we then I already had my citizenship, and we started having calls with them. We didn't have many, but we did have, there was a UK thing, Paul, realistically and at no stage in time, Paul Parkinson: 51:50 on a hiding to nothing on that. Bruno, and I think if you raise that, I think it's going to damage your reputation, because I've already diplomatically raised this with Jegan, and I basically got pushback, and they won't, they won't reopen … Paul Parkinson: 53:12 Are you going to argue that you should have got significant third commission for the avionics opportunity? Bruno Chaves: 53:17 I'm not going to argue that I was going should have gotten this or that, but I'm going to argue it was part of the UK team. I was part of the UK team of Nico, with Nicholas. I was still involved in the discussions with Nico. You can say yes or no, Paul, you can make your argument, and it would have gone to yourself as well. Paul Parkinson: 53:33 If you go and look through all the customer interactions on that and all of the visits I did the RFP response for that. I did all the compliance matrices for that. I think you're grabbing at something that you didn't make a significant contribution Bruno Chaves: 53:50 to. It's not whether Paul was it a UK account or not. This is simple. Paul Parkinson: 53:53 It was handled. It was handed to Nicholas Costa by Nico. That was his decision. Bruno Chaves: 53:59 It was not only Nicholas Costa and UK. I was with Nicholas Costa. Nicholas Costa and I were the account teams working on GE also, who else? There was another project, I think GD or we were talking about throwing, throwing some evals to some people. And then I realized that Nicolas Costa probably he didn't want the work to do the eval bits, because he was leaving at the end at some time. So I was assigned with Nicolas Costa to more accounts than GE and I'll be blunt, this was the fact. And then when Nicolas Costa left, Nico was still keeping everyone in the loop. Why am I in the loop if I'm not the accounting unless and then when Bruno Paul Parkinson: 54:39 I've got hundreds of emails about NJ beyond project, and you're not copied on so Bruno Chaves: 54:45 Are you sure about that? Paul, Paul Parkinson: 54:46 I've got a massive folder Bruno Chaves: 54:50 I have. I am I'm on copy from Nico about about what's happening on the accounts. You can say yes or no. You can disagree on the points if you want Paul Parkinson: 54:59 Yes, but I think you're gonna make some people quite angry higher up, and I'm not gonna back you on this. Bruno Chaves: 55:05 That's fine. Paul, I know you won't back me. Paul Parkinson: 55:10 I did the vast majority of work, Tommy, which is fine. I think you're out of order on this, which … Paul Parkinson: 57:07 Stefan did all the discussion with mercury about the requirements for the base BSP for the Mercury board, Bruno Chaves: 57:15 and Ty and I were pushing for Leonardo to go there, and also Ty and I had the claw back at the beginning of the year. Because if people want to be Solomonic, we had a claw back. Paul Parkinson: 57:27 I think you're going to, if you bring this up, I think you're going to cause lots of bad feeling, and I don't think you're going to be able to change anything on this. Bruno Chaves: 57:36 That's why. No, realistically, I know, but honestly, Paul Parkinson: 57:42 you're forgetting the fact that you earned, you achieved 246% of targets in 2023 302% in 2020 237% in 2021. In the last three years you you've earned multiple times more commission than any of the other FAEs in the team, and you earned more than I ever earned in 19 years of being an Fae. And this looks like sour grapes. If this goes to Jegan and to Darryl and to finance, I think you're going to make people quite angry Bruno Chaves: 58:19 Paul, I don't like this argument. You've made X amount of money. How much money do we make Wind River, it's like when people say you've made this amount of money. Well, how was that a statement? We're sales people. Our focus is making commissions. Paul Parkinson: 58:33 The company can choose to cap commissions if it wants to. And I had this happen to me on the GE edge avoinics deal, they decided they didn't want to pay me commission Bruno Chaves: 58:41 and that would be a breach of agreements. Paul Parkinson: 58:46 It's because of 1171, they said I already earned enough, and because it wasn't my assigned territory, it was their decision not to do Bruno Chaves: 58:54 it. How was that? How is that ethical? Paul, remind me, please, how's that ethical? Paul Parkinson: 59:00 I didn't agree with it, but it's one of those things. It was Doug's and finances, final decision. If you challenge that, they they'll just say it's our decision, take it or leave it.[224]Although I was referred to pages in the transcripts, I was not referred to specific passages said to have constituted qualifying disclosure.[225]I am satisfied that the Claimant did communicate, in the course of the above, that he believed that the commission paid to himself and his team was a breach of contract. However, the Claimant’s primary focus was on his own position. He was a keen pursuer of commission. When he referred to colleagues’ position, it was, I find, a tactical choice, that he believed doing so strengthened his own position. That is not a criticism of the Claimant. He was entitled to seek to maximise his earnings.[226]I am not satisfied, on balance, that the Claimant believed his disclosures to be in the public interest. The Claimant interest was in his own position.[227]In the course of the conversation on 08.03.2024, Mr Parkinson did seek to dissuade the Claimant from pressing commission issues, telling him that it would damage the Claimant’s reputation.[228]I do not find that Mr Parkinson offered this view because of any disclosure the Claimant had made. He made it because the Claimant was taking positions on commission that Mr Parkinson genuinely believed to be unreasonable. The Claimant was seeking a commission on the GE deal. Mr Parkinson believed, reasonably enough, that the Claimant was illplaced to press this argument. Grievance presented[229]On 18.03.2024, the Claimant emailed Ms Tyson a grievance. It extends over 6 substantive pages. It addressed “issues pertaining to my disability which modulates my communication style”, “Covid harassment/discrimination”, “commissions” and “contractual changes”.[230]Ms Tyson was due to leave the Respondent on 12.04.2024. In her statement, Ms King said that it was agreed that she, Ms King, would take the lead on dealing with the grievance.[231]I heard live evidence from Ms King. She is based in the United States, and gave evidence remotely from Maryland. She was physically located in the USA throughout her involvement with the grievance process. She had had no training in grievance practice in this jurisdiction, although she did have a little bit of experience with grievances in this jurisdiction. She also told me that, around the time, the Respondent was undergoing changes in its HR team, which were stretching its HR capacity.[232]She believed that the Claimant’s grievance was passed to her at the end of May or early in April. She agreed that she had seen that the Respondent had a target to respond to grievances within 10 days, but that she did not invite the Claimant to discuss the grievance until 03.04.2024. She explained this by saying that she had not been aware of the grievance initially. She said she had received it maybe a day or two before responding on that date, as she needed to review the grievance procedure before responding.[233]I accept Ms King’s evidence as to why there was a short delay in responding to the Claimant’s grievance. That delay had nothing to do with whether or not he was a whistleblower.[234]It is not in dispute that the Claimant asked if his wife could attend, which the Respondent refused, and also that he asked for permission to record the meeting he was invited to attend, which was also refused. Challenged that this was because the Claimant was a whistleblower, Mr King denied that. She said that the Claimant was refused permission to have his wife accompany him because that wasn’t in the grievance policy, which provided for accompaniment by a trade union rep or a colleague. Permission to record was refused because it wasn’t standard practice, which was to offer to share with a person making a grievance the notes of any meeting. She agreed, however, that the grievance policy did not expressly prohibit recording, and that no harm would have been done by allowing recording.[235]I have no difficulty in accepting Ms King’s evidence, that the decisions not to allow the Claimant to be accompanied by his wife, or to record the meeting, were unrelated to whether or not he was a whistleblower. Not only was King an impressive witness, who readily agreed with propositions put to her where it was appropriate to do so, but the positions adopted by the Respondent accord with common practice. Although one may think that little harm would have been done by allowing the Claimant to be accompanied by his wife, grievance policies regularly state that a person can be accompanied by a trade union rep or a colleague, the right to be accompanied under the Employment Relations Act 1999, s10 (where it applies – I was not addressed on this) applies to trade union reps or colleagues, the ACAS code is in similar terms, and I cannot recall sitting in a case in which a spouse has been allowed to accompany to a grievance meeting.[236]Likewise, as Ms King recognised, no harm would have been done by allowing the Claimant to record the meeting. But that does not mean that the decision not to allow recording was based on whether or not he was a whistleblower. One can understand how a practice of wanting a single note of a meeting to be taken can develop – although, of course, that would be undermined by allowing others present to take their own notes. One may think that allowing a recording – even the Respondent making a recording – would have been in everyone’s interests. But Ms King adhered, I find, to the Respondent’s usual practice, and her reason for doing so was because it was the usual practice. It had nothing to do with whether or not the Claimant was a whistleblower.[237]A meeting took place on 18.04.2024. It is alleged that, in the course of that meeting, Ms King “…attempted to educate the Claimant about Aspergers/Autism…” and referred to his communication style. At the hearing, it was put to her that she attacked his communication style.[238]The note of the meeting included in the bundle, includes the following exchange: Bruno Chaves: 1:01:43 It's like things don't make sense. It's like, it's like going against the inner self in a way, if you're overly logical, some things migrate you in the wrong way because it just don't make sense. It's like people are saying things that don't add up, and you want to stop the process there, because you're just wasting time. So this is how do you comment and then you have a discussion. It's like you've interrupted me or three or four times when we're having this conversation. I'm happy to just listen to monologues and then ignore them and then write a written response. But then that's not, that's me accommodating. It says that thing is like when let's say we fight two people come from so I have a perfect example. Let's say southern people. Let's say Southern Europeans versus a Nordic person. We're very expressive. We talk. Talk with our hands. We're... our personal space is much lower, right? We like to be close to people star nature. But if you take a person from the Nordics, he wants that distance. It might not want to talk too much. You might find your over friendliness a bit strange. And do you see where I'm going with this? So this barrier is the same way between a neuro divergent and a regular person, so neurotypical, Tamara Williams: 1:03:15 agreeing. But I also, like I said, I believe, and I personally believe it goes both ways. And the reason why I say that is because, like, I have a son who has autism, ADHD, and so when it comes to accommodations, and it comes even in work, school in general, I have to allow, I have to tell the team, tell whoever I talk to, what my son needs. And then we have commute in the middle on that, there are some flexibilities that my son has to do a certain situation, because it is because they are adjusting to him, and he's adjusting to the space that he's in. Some of the adjustments he cannot make, physically or mentally make, and then that's where the you know, that's where you meet in the middle. But part of it is my son having to say what he needs like in order to, you know, feel comfortable. Because, again, it depends on the person we can't have. Like, to your point, if someone's in a wheelchair, okay, anyone has a wheelchair, you put a ramp. In that situation, it's very easy to identify what the combination is. In neurodiversity, every person is different, and what they need varies. So that person has to be able to show, or at least communicate what they need, so that we can make the accommodation Bruno Chaves: 1:04:20 neuro extrovert, neurodiverse people need leeway, Tamara Williams: 1:04:24 absolutely. But that's but no, Bruno Chaves: 1:04:27 no leeway in the speaking. This is what I mean. If you're telling me that I cannot say anything and then go and then write it after that's me doing my adjustments, which I'm already making. It's not Wind River or Wind River staff making. You know, I'm not also saying "Bruno, don't care. He's not, he's not normal, right? So, you know, if he sounds a bit strange, is it because he's a bit strange?" I'm not asking for that. I I'm not asking, you know, for people to treat me like a crazy person. It's not. But there, there has to be some leeway. And in so far as what you described as. Solution for my problem is that I correct myself, which I've been doing. It's, it's not like other people giving me that extra leeway, right? Tamara Williams: 1:05:10 I think we're, I think you're missing one. I'm not saying for your particular situation that the answer is that you write it out. I'm just that as an example, if you're telling me that that is not something that is conducive for you, that if you're saying, Hey, I needed, I need leeway to be able to interject in a conversation without Tyrone or anyone feeling that I'm being disruptive or being rude, then that's a conversation that we would have to have with Tyrone or whoever else is in a meeting with you for them to understand that when you are disrupt, when you are quote, unquote disrupting, I would say you're interjecting, but when you're interjecting in a conversation of just you're disagreeing that you're not coming from a space of being disrespectful. But this is the way that you process things, and this is the way that you're able to, you know, communicate what your what your opinions are in a meeting. But again, that has to be it. It might be a learning on both ends, on how, on how to do that. Bruno Chaves: 1:06:01 Yeah, I understand. I'm not, I'm not disagreeing.[239]In his closing submissions, the Claimant’s counsel relies on Ms King’s comments at 1:03:15, but I have quoted more of the exchange to put those comments in context.[240]I do not accept the Claimant’s characterisation of what Ms King said. The written words read like an attempt to find some common ground with the Claimant – hence the reference to her own neurodiverse son. She acknowledges the need for adjustments in dealing with the Claimant. To observe that there might be learning “…on both ends…” is not objectionable, and the Claimant agreed with that.[241]Having heard Ms King give evidence, and with due regard to the fact that how a person speaks to a judge may not be how they speak elsewhere, I saw nothing that led me to believe that the tone in which she said the words noted, would have given them a sinister character that they do not have in writing.[242]It is not in dispute that the Claimant won an award for overachieving, which was a trip to St Lucia. It is equally not in dispute that he was told that he should not discuss his grievance on that trip. On 09.05.2024, one Ileana Oancea emailed the Claimant, her email including the following: … we have learnt you decided to participate to the President Club next week. We wish you to fully enjoy the time and focus on what will happen there. As you know, we have kept the confidentiality on your grievance process and we would kindly remind you to do not disclose any information, details in regards to this while you will be there. Not that we would have expected to happen, but it’s important for us to be aligned as this is the way we can ensure a smoothly and objective process. If anything needs to be communicated towards your grievance subject, please kindly come only to me and Tamara.[243]The Claimant responded to Ms King, copying in Ms Oancea: I don’t intend to discuss these matters with anyone.[244]Ms King said that this warning was not given because the Claimant was a whistleblower, but rather because it was intended to speak to some people going on the trip as part of the investigation into his grievance, and others were part of the grievance. She said that there had been a discussion before Ms Oancea sent the warning.[245]I accept Ms King’s evidence on this. It is readily understandable that the Respondent did not want the Claimant discussing his grievance on the St Lucia trip, for the reasons Ms King gave. This decision had nothing to do with whether or not he was a whistleblower.[246]Despite the timescales referred to in the Respondent’s grievance policy, the Claimant’s grievance was not resolved within 10 days of the meeting on 18.04.2024.[247]The day after that meeting, the Claimant emailed Ms King and Ms Oancea. In his email, said that he felt too much attention had been focussed on his relationship with Mr Clay, he revisited the issue around the DEI training, he said that he tried to address his communication skills all the time but that “constantly hammering” on about them “shatters (his) ability to interact with other people”. He then wrote: As we were running out of time, not enough focus was put on the commissions side which is very serious. On account of what happened, I suffered financial losses as we had signed a contract to buy land behind our house based on my reasonable expectations of income. Aside from the financial stress, there is still ongoing emotional stress since this ordeal is ongoing as we are attempting to sort that matter out.[248]On 22.04.2024, Ms King suggested a follow up meeting, which took place on 25.04.2024. The following day, Ms King emailed the Claimant notes of the meeting.[249]It was said that the notes were illegible. I do not agree. Much of the documentation in this case has been impenetrable, but that cannot be said of the notes of the second meeting, which were in the hearing bundle.[250]On 28.04.2024, Mr Parkinson made his response to the Claimant’s grievance, which extended over 11 pages.[251]There followed further correspondence between the Claimant and Ms King about the notes.[252]On 20.05.2024, the Claimant says that he sent an email chasing an update on his grievance. No such email was included in the bundle, but I accept that he did chase it up. Ms King says that she did not recall seeing such an email, had she seen it, she would have tried to respond. I accept that this is something that appears to have been lost in the system, and that Ms King would have replied to a chaser email had she seen it.[253]Ms King said that she could see that to take 3 1/3 months to resolve the Claimant’s grievance was too long. She explained that events in the Respondent, an increase in cases and being short staffed, explained the delay. I accept her evidence on these points.[254]On 03.07.2024, by which time the Claimant had resigned, the Respondent issued the outcome to the Claimant’s grievance. No part of it was upheld. The Claimant resigns[255]On 18.06.2024, the Claimant emailed Ms King and Ms Oancea, in the following terms: Dear Tamara, Ileana Today will be my last day with Wind River UK Ltd. At the end of this working day – as I need to pack your equipment and take it to the office – my contract will be terminated. Wind River has failed to show any good will in coming to the ACAS mediation process. The representative from ACAS told me multiple times that you did not want to mediate as you were “investigating” my grievance. I have shown an inordinate amount of good will and patience in this process, however, it seems that Wind River is intent in running the clock on my claim. Whether this is due to the process being dealt with in bad faith or due to inability to deal with the matter, the end result is the same. Since the ACAS representative told me that you had legal counsel, a reasonable person can only assume bad faith. As per UK employment law, employees have the right to have a grievance dealt with in a timely fashion, otherwise it is considered to be presumptive constructive dismissal – not to mention the already existing reasons for constructive dismissal. The grievance was opened on the 18th of March, today is the 18th of June, it is now one day over 3 months time limit established by UK case law. My legal representatives have advised that we will file the employment tribunal case by the 20th of June with the following claims:• Unlawful deduction of wages s23(1) of the ERA 1996; and• Whistleblowing detriment under s47B ERA 1996; and• Constructive dismissal - Under s95(1)(c) ERA 1996; They also advised to bring the following claims via the Civil Court since they are time barred by the Employment tribunal.• Bullying at Work and the Protection from Harassment 1997 – because of the bullying/harassement that I suffered in Wind River.• Material breach of contract – multiple instances. If Wind River wishes to remediate the matters above, please reply in an expedited fashion via my personal email…and/or call me on my personal mobile…[256]I find that the principal reason why the Claimant resigned was, because he was unhappy with the Respondent’s position regarding commission. Although I am satisfied that he was not content with the time that had passed without his grievance being resolved, and with the other matters he has referenced in these proceedings, I find that, but for the commission dispute, he would not have resigned. Law Employment Rights Act 1996 (“ERA”)[257]I was referred to or considered the following provisions of the ERA:(a) S13: 13.— Right not to suffer unauthorised deductions. (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or(b) the worker has previously signified in writing his agreement or consent to the making of the deduction. (2) In this section “relevant provision” , in relation to a worker's contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion. (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion. (4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion. (5) For the purposes of this section a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect. (6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified. (7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer. (8) In relation to deductions from amounts of qualifying tips, gratuities and service charges allocated to workers under Part 2B, subsection (1) applies as if— (a) in paragraph (a), the words "or a relevant provision of the worker's contract" were omitted, and (b) paragraph (b) were omitted. (b) S23: 23.— Complaints to employment tribunals. (1) A worker may present a complaint to an employment tribunal — (a) that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)), (b) that his employer has received from him a payment in contravention of section 15 (including a payment received in contravention of that section as it applies by virtue of section 20(1)),(c) that his employer has recovered from his wages by means of one or more deductions falling within section 18(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or(d) that his employer has received from him in pursuance of one or more demands for payment made (in accordance with section 20) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under section 21(1). (2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received. (3) Where a complaint is brought under this section in respect of— (a) a series of deductions or payments, or (b) a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. (3A) Section 207B (extension of time limits to facilitate conciliation subsection (2). (4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable. (4A) An employment tribunal is not (despite subsections (3) and (4)) to consider so much of a complaint brought under this section as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint. (4B) Subsection (4A) does not apply so far as a complaint relates to a deduction from wages that are of a kind mentioned in section 27(1)(b) to (j). (5) No complaint shall be presented under this section in respect of any deduction made in contravention of section 86 of the Trade Union and Labour Relations (Consolidation) Act 1992 (deduction of political fund contribution where certificate of exemption or objection has been given). (c) S27 27.— Meaning of “wages” etc. (1) In this Part “wages” , in relation to a worker, means any sums payable to the worker in connection with his employment, including— (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise, (b) statutory sick pay under Part XI of the Social Security Contributions and Benefits Act 1992, (c) statutory maternity pay under Part XII of that Act, (ca) statutory paternity pay under Part 12ZA of that Act, (cb) statutory adoption pay under Part 12ZB of that Act, (cc) statutory shared parental pay under Part 12ZC of that Act, (cd) statutory parental bereavement pay under Part 12ZD of that Act, (ce) statutory neonatal care pay under Part 12ZE of that Act, (ce) any amount of qualifying tips, gratuities and service charges allocated to the worker under Part 2B of this Act, (d) a guarantee payment (under section 28 of this Act),(e) any payment for time off under Part VI of this Act or section 169 of the Trade Union and Labour Relations (Consolidation) Act 1992 (payment for time off for carrying out trade union duties etc.),(f) remuneration on suspension on medical grounds under section 64 of this Act and remuneration on suspension on maternity grounds under section 68 of this Act, (fa) remuneration on ending the supply of an agency worker on maternity grounds under section 68C of this Act,(g) any sum payable in pursuance of an order for reinstatement or reengagement under section 113 of this Act,(h) any sum payable in pursuance of an order for the continuation of a contract of employment under section 130 of this Act or section 164 of the Trade Union and Labour Relations (Consolidation) Act 1992, and (j) remuneration under a protective award under section 189 of that Act, but excluding any payments within subsection (2). (2) Those payments are— (a) any payment by way of an advance under an agreement for a loan or by way of an advance of wages (but without prejudice to the application of section 13 to any deduction made from the worker's wages in respect of any such advance), (b) any payment in respect of expenses incurred by the worker in carrying out his employment, (c) any payment by way of a pension, allowance or gratuity in connection with the worker's retirement or as compensation for loss of office, (d) any payment referable to the worker's redundancy, and (e) any payment to the worker otherwise than in his capacity as a worker. (3) Where any payment in the nature of a non-contractual bonus is (for any reason) made to a worker by his employer, the amount of the payment shall for the purposes of this Part— (a) be treated as wages of the worker, and (b) be treated as payable to him as such on the day on which the payment is made. (4) In this Part “gross amount” , in relation to any wages payable to a worker, means the total amount of those wages before deductions of whatever nature. (5) For the purposes of this Part any monetary value attaching to any payment or benefit in kind furnished to a worker by his employer shall not be treated as wages of the worker except in the case of any voucher, stamp or similar document which is— (a) of a fixed value expressed in monetary terms, and (b) capable of being exchanged (whether on its own or together with other vouchers, stamps or documents, and whether immediately or only after a time) for money, goods or services (or for any combination of two or more of those things). (d) S43B 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, is being or is likely to be deliberately concealed. (2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory. (3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it. (4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice. (5) In this Part “the relevant failure” , in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1). (e) S47B 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. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a) by another worker of W's employer in the course of that other worker's employment, or (b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker— (a) from doing that thing, or (b) from doing anything of that description. (1E) A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if— (a) the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and (b) it is reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B). (2) [This]3 section does not apply where— (a) the worker is an employee, and (b) the detriment in question amounts to dismissal (within the meaning of [Part X]4 ). (3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “worker” , “worker's contract” , “employment” and “employer” have the extended meaning given by section 43K. (f) S48 48.— Complaints to employment tribunals. (1) An employee may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 43M, 44(1), 45, 46, 47, 47A, 47C(1), 47E, 47F or 47G. (1XA) A worker may present a complaint to an employment tribunal that the worker has been subjected to a detriment in contravention of section 44(1A). (1YA) A shop worker may present a complaint to an employment tribunal that he or she has been subjected to a detriment in contravention of section 45ZA. (1ZA) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 45A. (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B. (1AA) An agency worker may present a complaint to an employment tribunal that the agency worker has been subjected to a detriment in contravention of section 47C(5) by the temporary work agency or the hirer. (1B) A person may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47D. (2) On a complaint under subsection (1), (1XA), ]10 (1ZA), (1A) or (1B) it is for the employer to show the ground on which any act, or deliberate failure to act, was done. (2A) On a complaint under subsection (1AA) it is for the temporary work agency or (as the case may be) the hirer to show the ground on which any act, or deliberate failure to act, was done. (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, a temporary work agency or a hirer 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. (4A) Section 207B (extension of time limits to facilitate conciliation subsection (3)(a). (5) In this section and section 49 any reference to the employer includes- (a) where a person complains that he has been subjected to a detriment in contravention of section 47A, the principal (within the meaning of section 63A(3)); (b) in the case of proceedings against a worker or agent under section 47B(1A), the worker or agent. (6) In this section and section 49 the following have the same meaning as in the Agency Workers Regulations 2010 (S.I. 2010/ 93)— “agency worker”; “hirer”; “temporary work agency”. (g) S103A 103A. 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. (h) S111(2)8 111.— Complaints to employment tribunal. (1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, 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. (2A) Section 207B (extension of time limits to facilitate conciliation subsection (2)(a). …[258]The Respondent referred me to Malik -- BCCI9, in which it was held that the implied term of trust and confidence meant that an employer shall not “without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee"10.[259]The Respondent invited me to consider a large number of cases which it described as “following Malik”11;(a) Hilton -v- Shiner12;(b) Amnesty International -v- Ahmed13;(c) Post Office -v- Roberts14;(d) White -v- Reflecting Roadstuds15;(e) Omilaju -v- Waltham Forest LBC16; 8 Written submissions on behalf of the Claimant referred to s112(2)(d). There is no sub-section (d), and I presume this was a typo, that (b) was intended. 9 [1998] AC 20 10 Per Lord Steyn @ 11 Notwithstanding the fact that not all of the cases cited post-dated Malik 12 [2001] I.R.L.R. 727 13 [2009] ICR 1450 14 [1980] I.R.L.R. 347 15 [1991] ICR 733 16 [2004] EWCA Civ 1493 [2005] I.C.R. 481(f) Frenkel Topping -v- King17;(g) Working Men's Club and Institute Union Ltd v Balls18;(h) Henderson v Connect (South Tyneside) Limited19;(i) Croft v Consignia plc20;(j) Wood v WM Car Services Ltd21;(k) Tolson v Governing Body of Mixenden Community School22;(l) Courtaulds Northern Spinning Ltd v Sibson23;(m) Bliss v South East Thames Regional Health Authority24;(n) Gover v Propertycare25;(o) Doherty v British Midland Airways26;[260]Quite why it was thought necessary to cite 15 cases, in addition to Malik, on the issue of Constructive Unfair Dismissal, is not evident to me. Few of the cases to which my attention was invited were referenced in support of any principle in the course of submissions – Amnesty that a respondent may act with reasonable and proper cause even if there were other options available to it; Frenkel that unreasonable conduct in itself unlikely to meet the demanding nature of the test; Croft that the threshold for constructive unfair dismissal is high; Doherty that there is no implied term that the employer will not breach some other statutory right; Courtaulds that the question of whether there has been a breach of a fundamental term of the contract is not a ‘range of reasonable responses’ test; Tolson that it is the employer’s conduct, not the employee’s reaction to it.[261]On the question of affirmation, the Respondent referred me to Kaur -v- Leeds Teaching Hospitals NHS Trust27 as authority for the position that 17 UKEAT/01606/15/LA 18 UKEAT/0119/11 19 UKEAT/0209/09/SM [2010] I.R.L.R. 466 20 [2003] EWCA Civ 1045 [2003] I.C.R. 1425 21 1982] I.C.R. 693 22 EAT/0124/03/RN [2003] I.R.L.R. 842 23 [1988] I.C.R. 451 24 [1987] I.C.R. 700 25 [2006] EWCA Civ 286 [2006] I.C.R. 1073 26 [2006] I.R.L.R. 90 27 [2018] EWCA Civ 978[2019] ICR 1 the test is whether, in all the circumstances, an employee’s conduct has shown an intention to continue in the contract rather than resign.[262]I was not referred to, but have considered, on the question of affirmation:(a) W.E. Cox Toner (International) Ltd -v- Crook28 - in which BrowneWilkinson J held that, whilst an innocent party must at some stage decide to affirm the contract or accept the repudiation, mere delay in accepting repudiation does not, in itself, amount to affirmation, although prolonged delay can amount to evidence of an implied affirmation29;(b) Chindove -v- Morrison Supermarkets PLC30 - in which the EAT referred to Cantor Fitzgerald International -v- Bord & Ors31, in which McCombe J described affirmation as “…essentially the legal embodiment of the everyday concept of "letting bygones be bygones"”32;(c) Brooks -v- Leisure Employment Services Ltd33, in which the EAT said (referring to Kaur) that the exercise of a contractual grievance or appeal procedure is unlikely to be treated as an unequivocal affirmation on the contract.[263]I was referred to the following case on the interpretation of the Claimant’s contract:(a) Greg May (Carpet Fitters and Contractors) Ltd -v- Dring34, that the question of what is properly payable has to be determined by the Tribunal on normal contractual principles;(b) Agarwal -v- Cardiff University35;(c) Arnold -v- Britton36, in which the Supreme Court held that; 28 [1981]ICR 823 29 @ 828g 30 UKEAT/0076/17/JOJ 31 [2002] IRLR 867 32 @ para 129 33 [2023] EAT 237[2024] ICR 366 34 [1990] I.C.R. 188 35 [2018] EWCA Civ 2084[2019] ICR 433 36 [2015] UKSC 36 [2015] A.C. 1619 When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean”, to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101 , para 14. And it does so by focussing on the meaning of the relevant words, in this case clause 3(2) of each of the 25 leases, in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions….37;(d) Rainy Sky SA -v- Kookmin Bank38, in support for the proposition that I must resolve any ambiguity in the contract by considering the language used and deciding what a reasonable person, with the background knowledge reasonably available to the parties at the time of the contract, would have understood the parties to mean;(e) Lukoil Asia Pacific -v- Ocean Tankers (The Ocean Neptune)39, in which Popplewell J said; …The court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to the objective meaning of the language used. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. Interpretation is a unitary exercise; in striking a balance between the indications given by the language and the implications of the competing constructions, the court must consider the quality of drafting of the clause and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest; similarly, the court must not lose sight of the possibility that a provision may be a negotiated compromise or that the negotiators were not able to agree more precise terms. This unitary exercise involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated. It does not matter whether the more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant 37 @ para 15 38 [2011] UKSC 50[2011] 1 WLR 2900 39 [2018] EWHC 163 (Comm) [2018] 1 CLC 94 language in the contract, so long as the court balances the indications given by each.40(f) Reardon Smith Line Ltd -v- Yngvar Hansen-Tangen41 as authority for the position that I must put myself in the same factual matrix as the partis when concluding the contract;[264]New Century Cleaning -v- Church42 as authority for the proposition a payment must be capable of quantification in order to constitute wages under ERA s13(3). As it was accepted that commission can form part of wages, I am not clear how this case is meant to assist me. It was certainly not argued by Mr Ryan that, because the contractual position is so opaque, that opacity must assist the Respondent because a reasonable person would not be able to make head nor tail of the documents. That would be a wholly unsatisfactory position. However difficult, the Tribunal must – with the assistance of the parties – decide what the documents mean, insofar as the resolution of the case requires them to be resolved.[265]On the same point, the Respondent relies on Lucy -v- British Airways43 and Coors Brewers Ltd -v- Adcock44, in the latter of which the following was said: …In my judgment, the highest the case can be put for the claimants is that Coors was under an obligation to put in place a scheme which, properly and fairly operated, was capable of replicating the benefits of the BEPSS scheme. Whichever way one examines the case, however, the result is that any payment due to the workforce under the 2003 incentive scheme was incapable of quantification in the Delaney v Staples sense….45[266]It was not argued orally that any of the sums claimed was not, in fact, quantifiable. I therefore find the citation of authorities going to a proposition the Respondent did not advance, unhelpful. 40 @ para 8 41 [1976] 1 WLR 989 42 [2000] I.R.L.R. 27 43 UKEAT/0033/08/LA 44 [2007] EWCA Civ 19 [2007] I.C.R. 983 45 @ para 52 per Wall LJ[267]The Respondent also referred me to Scammell & Nephew Ltd -vOuston46 in support of the proposition that a term of a contract can lack force because it is vague or uncertain. That case concerned an order for a van “on hire purchase terms”. Unsurprisingly, that was held to be too vague. It is a world away from the position here, where the documents are drafted with in terms that invite the conclusion that the draftsperson was, at best, indifferent to their intelligibility. An invitation to shrug my shoulders and confess myself unable to interpret the documents was not made to me in oral submissions. Had it been made, I would have declined it.[268]Yet another authority cited was Jandu -v- Crane Legal47. In that case it was held that the claim for a bonus was difficult to quantify, but, had the claim for a bonus been a good one, it would have to be brought as a claim for breach of contract. The benefit that I might get from this case was not explained in oral submissions.[269]Clark -v- Nomura International48, Keen -v- Commerzbank49, Horkulak -v- Cantor Fitzgerald International50, IBM UK Holdings -vDalgliesh51 and Braganza -v- BP Shipping52, all cited – without quotation or reference to relevant passages, or even a provision of the relevant reports - in support of the propositions that: a) The burden of proving that there was a unlawful deduction rests on the claimant. b) Where an employer exercises a discretion in making a decision the ET can only interfere if it finds that the decision was “Wednesbury irrational” c) Where the court is reviewing contractual decisions on commission (by analogy with performance related bonuses) the employee is entitled to a bona fide rational exercise by the employer of its discretion. The 46 [1941] AC 251 47 UKEAT/0198/13/DA 48 [2000] I.R.L.R. 766 49 [2006] EWCA Civ 1536[2007] ICR 623 50 [2004] EWCA Civ 1287 [2005] I.C.R. 402 51 [2017] EWCA Civ 1212 [2018] I.C.R. 1681 52 [2015] UKSC 17 | [2015] 1 W.L.R. 1661 courts were charged with enforcing that entitlement but there is little scope for intensive scrutiny of the decision-making process. d) The decision of the employer is not a judicial determination and the ET cannot expect judicial reasoning. e) The ET should not substitute its own decision for that of the decision maker.[270]It seems to me that Braganza establishes that, where a contract gives a party the power to exercise a discretion or form an opinion as to facts, it is not for a court to make the decision in question, but a court – including this Tribunal – will imply a term, in appropriate cases, that the power be exercised not only in good faith, but also without being arbitrary, capricious or irrational in the sense in which that term was used when reviewing the decisions of public authorities. This might, it seems to me, be appropriately paraphrased as “reasonably”.[271]I was also referred to Judge -v- Crown Leisure53 a case concerning a promise made at a Christmas party, held to be in terms too vague to be legally enforceable. I do not find this case of assistance.[272]The Respondent also referred me to Brogdan -v- Investec Bank54 in which Moore-Bick LJ said:21. In his skeleton argument Mr. Cox also put forward a submission that where an employer has by positive action engendered in an employee a reasonable expectation that he will act in a particular way in the future, his failure to do so may be regarded as irrational, unless there are compelling reasons to justify it. He submitted that in relation to both the second and third financial years the Bank had increased the EVA of the SED desk after the year end to reflect better the value to the Bank of its activities. The appellants were therefore entitled to expect that approach to continue.22. The judge rejected that submission and it was not pressed on us in oral argument as an independent ground of appeal. In my view it is based on a misunderstanding of the steps which the Bank took. In relation to each of those years a disagreement arose between the appellants and the Bank over the calculation of their bonus pool and in each case the Bank agreed to make available a larger sum of money than that to which the contractual formula gave rise. However, these were simply ex gratia increases in the size of the bonus pool. They were not capable of giving 53 [2005] EWCA Civ 571 [2005] I.R.L.R. 823 54 [2016] EWCA Civ 1031 [2017] I.R.L.R. 90 rise to any reasonable expectation on the part of the appellants that the Bank would act in the same way in succeeding years and did not create any obligation on it to do so. Nor can the Bank's conduct in this respect be treated as supporting the appellants' case that they were entitled to have their bonus pool calculated in a different way.[273]I did not find this case to be of assistance, turning as it does on its own facts.[274]Allsop -v- Christiani & Nielsen Ltd 55, in which Cox J said: 75. I shall deal with these points in turn. First, in considering whether the claims originally pleaded fell within the unlawful deductions regime, the Employment Judge rightly directed himself to the leading case of Coors . As the court in that case made clear, this regime is designed for straightforward claims where the employee can show that he has not been paid quantified or quantifiable sums properly due to him under his contract. It cannot be used as the vehicle to advance claims for damages for breach of contract, consequent, for example, upon the non-exercise or allegedly capricious exercise of a contractual discretion56.[275]If this was intended to constitute an invitation once again to shrug my shoulders and abdicate my responsibility to resolve this dispute in the face of the difficulty in interpreting the contractual documents, it is an invitation that was not made in oral submissions and one which I do not think I could properly accept.[276]Insofar as whistleblowing is concerned, I was referred to Darnton - v- University of Surrey57, Babula –v- Waltham Forest College58 and Korashi –v- Abertawe Bro Morannwg University59 (incorrect references being given for the latter two cases), in support of the proposition that, whilst ERA requires a disclosure to be of information, it does not matter whether the information is correct, so long as the worker reasonably believes it tends to show one or more of the prescribed circumstances. Darton and Korashi were referred to as supporting the proposition that a reasonable belief must be mased on the facts as understood by the worker at the relevant time. 55 UKEAT/0241/11/JOJ 56 As underlined in the Respondent’s written submissions 57 [2004] ICR 615 58 [2007] EWCA Civ 174 [2007] I.C.R. 1026 59 [2012] I.R.L.R. 4[277]Cavendish Munro Professional Risks Management -v- Geduld60 (another case for which an incorrect reference was given), Kilraine -vLondon Borough of Wandsworth61 and Eigar Securities LLP -vKorshunova were cited on the need for a qualifying disclosure to involve the disclosure of information.[278]“Public Interest” is not defined in the ERA, and whilst it is not enough that a claimant seek rely on breach of their own contract as a breach of a legal obligation, a relatively small group may be sufficient to satisfy the public interest requirement, although that will be a fact-sensitive judgement: see Chesterton Global -v- Nurmohamed62.[279]I was referred to Fecitt -v- NHS Manchester63 regarding causation, in which Elias LJ said: 43. It follows that, in my judgment, there is nothing in the tribunal's decision which is inconsistent with the approach to the standard of proof adumbrated by the Employment Appeal Tribunal. Strictly, therefore, Mr Linden's second point, challenging the appeal tribunal's analysis of causation, does not arise for determination and I will deal with it briefly. Suffice it to say that I agree with the submissions of Ms Romney, counsel for the claimants, that liability arises if the protected disclosure is a material factor in the employer's decision to subject the claimant to a detrimental act. I agree with Mr Linden that Igen Ltd (formerly Leeds Careers Guidance) v Wong [2005] ICR 931 is not strictly applicable since it has a European Union context. However, the reasoning which has informed the European Union analysis is that unlawful discriminatory considerations should not be tolerated and ought not to have any influence on an employer's decisions. In my judgment, that principle is equally applicable where the objective is to protect whistleblowers, particularly given the public interest in ensuring that they are not discouraged from coming forward to highlight potential wrongdoing. 44. I accept, as Mr Linden argues, that this creates an anomaly with the situation in unfair dismissal where the protected disclosure must be the sole or principal reason before the dismissal is deemed to be automatically unfair. However, it seems to me that that is simply the result of placing dismissal for this particular reason into the general run of unfair dismissal law. As Mummery LJ cautioned in Kuzel v Roche Products Ltd [2008] ICR 799 , para 48, in the context of a protected disclosure claim: 60 [2012] IRLR 38 61 [2016] I.R.L.R. 422 62 [2015] ICR 920 63 [2011] EWCA Civ 1190 [2012] I.C.R. 372 “Unfair dismissal and discrimination on specific prohibited grounds are, however, different causes of action. The statutory structure of the unfair dismissal legislation is so different from that of the discrimination legislation that an attempt at cross fertilisation or legal transplants runs a risk of complicating rather than clarifying the legal concepts.” 45. In my judgment, the better view is that section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower. If Parliament had wanted the test for the standard of proof in section 47B to be the same as for unfair dismissal, it could have used precisely the same language, but it did not do so. 232. I was not addressed by either part on the implied term that an employee will obey lawful and reasonable orders within the scope of employment. There is no doubt that such an implied term exits – see Chitty on Contracts64. 233. I have set out the relevant provisions in the Claimant’s contract of employment above. 234. The Respondent’s grievance policy provides, insofar as is relevant to this case, as follows: Stage 1 – If you have a grievance about any aspect of your employment: The team member is expected to identify the particular grievance as specifically, giving detail around the issue supported by facts wherever possible. They should initially discuss the grievance informally with the immediate team leader. It is the team leader responsibility to try to resolve the matter through explanation, adjustment or modification of the circumstances where possible, within 5 working days, or as soon as reasonably practical. At this stage (and all other stages) the team member may be accompanied at grievance discussion, by a work colleague, if desired. Stage 2 – If the grievance remains unresolved: 64 36th edition, 43-064 and authorities cited therein. The team member may request a meeting with their People Partner. The People Partner has the responsibility to investigate the issues, drive further discussions if necessary and try to resolve the grievance within 10 working days, or as soon as reasonably practical. Stage 3 – If the grievance still remains unresolved: The team member may request a meeting with the Regional PT Director. The PT Director will be briefed with previous documented discussions and It is their responsibility to further investigate all details, circumstances and evidence. They will attempt to resolve the matter to the satisfaction of the team member, and provide a formal analyse with recommendations, within 10 working days of the Stage 3 discussion, or as soon as reasonably practical. The Regional PT Director, Regional VP and Employee Relations function are the ultimate authority in all grievance matters. General Principles• Team members may be accompanied or represented by a Wind River colleague. Legal representation, or being accompanied by a person who is not employed by Wind River is not permissible.• The Grievance Procedure is designed to understand the issues raised clearly, identify all objective evidence available and to resolve issues at the earliest stage possible, and within reasonable time limits as set in the policy.• No legal action will be taken by either party before the stages of this procedure have been exhausted. Failure to agree at any stage may be formally recorded using appropriate documentation, which is shared post discussion with all parties.• Comprehensive documentation of all dialogue is imperative. It is necessary to have notes for future reference and all discussions and agreements will be formally recorded and shared in electronic format.• Nothing in this procedure is intended to prevent normal day to day discussion between team members, leaders, People Team and Employee Relations to solve problems on an informal basis. The Process
The hearing
[1]The team member with a grievance must outline the exact nature of the grievance to the direct leader, giving precise detail of the complaint and indicating the expectation/outcome they have following discussions of the grievance.[2]If a formal meeting is to be conducted, there will be a written invitation, confirming the right to be accompanied.[3]Electronic written minutes will be generated following all grievance meetings, outlining the details of the discussion and potential outcome.[4]The right of appeal will apply for all parties concerned, if they are not satisfied with the outcome. 235. The ACAS Code of Practice on disciplinary and grievance procedures provides, insofar as the right to be accompanied to a meeting is concerned, as follows: Allow the employee to be accompanied at the meeting[13]Workers have a statutory right to be accompanied by a companion where the disciplinary meeting could result in:• a formal warning being issued; or• the taking of some other disciplinary action• the confirmation of a warning or some other disciplinary action (appeal hearings)[14]The statutory right is to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker. Employers must agree to a worker's request to be accompanied by any companion from one of these categories. Workers may also alter their choice of companion if they wish. As a matter of good practice, in making their choice workers should bear in mind the practicalities of the arrangements. For instance, a worker may choose to be accompanied by a companion who is suitable, willing and available on site rather than someone from a geographically remote location.[15]To exercise the statutory right to be accompanied workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. A request to be accompanied does not have to be in writing or within a certain timeframe. However, a worker should provide enough time for the employer to deal with the companion's attendance at the meeting. Workers should also consider how they make their request so that it is clearly understood, for instance by letting the employer know in advance the name of the companion where possible and whether they are a fellow worker or trade union official or representative.[16]If a worker's chosen companion will not be available at the time proposed for the hearing by the employer, the employer must postpone the hearing to a time proposed by the worker provided that the alternative time is both reasonable and not more than five working days after the date originally proposed.[17]The companion should be allowed to address the hearing to put and sum up the worker's case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker's behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case. 236. The Employment Relations Act 1999, s10, deals with the right to be accompanied to meetings, as provides as follows: 10.— Right to be accompanied. (1) This section applies where a worker— (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b) reasonably requests to be accompanied at the hearing. (2A) Where this section applies, the employer must permit the worker to be accompanied at the hearing by one companion who– (a) is chosen by the worker; and (b) is within subsection (3). (2B) The employer must permit the worker's companion to– (a) address the hearing in order to do any or all of the following– (i) put the worker's case; (ii) sum up that case; (iii) respond on the worker's behalf to any view expressed at the hearing; (b) confer with the worker during the hearing. (2C) Subsection (2B) does not require the employer to permit the worker's companion to– (a) answer questions on behalf of the worker; (b) address the hearing if the worker indicates at it that he does not wish his companion to do so; or (c) use the powers conferred by that subsection in a way that prevents the employer from explaining his case or prevents any other person at the hearing from making his contribution to it. (3) A person is within this subsection if he is— (a) employed by a trade union of which he is an official within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992, (b) an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker's companion at disciplinary or grievance hearings, or (c) another of the employer's workers. (4) If— (a) a worker has a right under this section to be accompanied at a hearing, (b) his chosen companion will not be available at the time proposed for the hearing by the employer, and (c) the worker proposes an alternative time which satisfies subsection (5), the employer must postpone the hearing to the time proposed by the worker. (5) An alternative time must— (a) be reasonable, and (b) fall before the end of the period of five working days beginning with the first working day after the day proposed by the employer. (6) An employer shall permit a worker to take time off during working hours for the purpose of accompanying another of the employer's workers in accordance with a request under subsection (1)(b). (7) [Sections 168(3), (4) and (5), 169 and 171 to 173 of the Trade Union and Labour Relations (Consolidation) Act 1992]2 (time off for carrying out trade union duties) shall apply in relation to subsection (6) above as they apply in relation to section 168(1) of that Act. 237. I was also referred to Gestmin -v- Credit Suisse65. In that case, Leggatt J (as he then was) made his well-known observations about the approach to oral evidence. He said: …the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. 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. 238. The Gestmin approach is one that has much merit. I have indicated the use that I have been able to place on observing the witnesses above. I do not consider that my approach to assessing the evidence to have differed from that indicated in Gestmin in any significant way. 239. I also referred in oral argument to The Wagon Mound66 and Overseas Tankship (UK) Ltd -v- Miller Steamship Co Pty Ltd (commonly known as “The Wagon Mound (No. 2)”67 on the point that, although bound by the conclusion reached at the preliminary hearing, I was bound to reach my own factual findings insofar as relevant and necessary to determine the issues for me. Conclusions on the issues Whistleblowing 240. Issue2.1.1 – the claim in respect of issue2.1.1.1 is not pursued, and I do not need to determine the same. 65 [2013] EWHC 3560 (Comm) [2020] 1 C.L.C. 428 66 [1961] AC 388 67 [1967] 1 A.C. 617 241. Insofar as issues2.1.1.2 to 2.1.1.4 are concerned, I have found that the Claimant did make those disclosures, and that those disclosures were disclosures of information. Issue2.1.2 I answer with “yes”. 242. I have found that the Claimant did not believe his disclosures were in the public interest. He gave no thought to that. Issue2.1.3 I answer with “no”, and issue2.1.4 I falls away. 243. Regarding issue 2.1.5, I have found that the Claimant did believe that his disclosures tended to show that the Respondent was failing to comply with a legal obligation. Given the opacity of the documents, that belief was reasonable. 244. The disclosures were made to the Claimant’s employer. Detriment 245. Issue3.1.1 is not pursued. 246. I have found that the facts alleged in issues 3.1.1 to 3.1.8 did occur, save for those alleged in issues3.1.2 and 3.1.6. as set out in those issues. My specific findings on those issues are set out above. 247. Because I have found that none of the acts I found to be done, was done because of any disclosure made, I do not need to resolve issue 3.2. Allegations made under heading of disability (issue 5) 248. I have reached factual findings on the specific factual issues raised in issue 5.1; (a) Re issue 5.1.1, I have found that something like this did occur; (b) Re issue 5.1.2, I have that something like this did occur; (c) Re issue 5.1.3, I have found that something like this did occur; (d) Re issue 5.1.4, I have found that this incident did occur; (e) Re issue 5.1.5, I have found that this did occur; (f) Re issue 5.1.6, I have found that this did occur; (g) Re issue 5.1.7, I have found that this did occur; (h) Re issue 5.1.8, I have found that this comment was made; (i) Re issue 5.1.9, I have not accepted the Claimant’s characterisation of Ms King’s comments. Constructive unfair dismissal 249. I do not accept that any of the factual findings made regarding the allegation of detriment and discrimination, constitute a breach of the implied term of mutual trust and confidence. 250. I have not found that the Claimant was put under pressure to be vaccinated against Covid-19, as alleged in issue 6.1.2. 251. I have accepted that the facts alleged in issues 6.1.3 and 6.1.4 did occur. 252. Re issue 6.1.5, I find that the Claimant’s quota was raised, but that this was a reasonable exercise of managerial discretion. 253. The Claimant was not sent illegible notes as alleged in Issue 6.1.6 254. My findings on payment of commission are set out above. I have found that there was, in part, a failure to pay the Claimant proper commission. 255. I do not agree that there was a failure to respond promptly to the Claimant’s concerns about commission. The Claimant’s true complaint is that the response was not to his satisfaction. 256. There was not a failure to respond to the Claimant’s grievance within 3 months, although there was a failure to resolve it in promptly. This was for reasons that are unrelated to any ill will towards the Claimant. 257. I do not accept that the latter failure was a last straw, or indeed played any real part in the Claimant’s decision to resign. He resigned because he was unhappy with the commission situation. 258. Although much of the behaviour of which the Claimant complains was innocuous, I find that the failure to pay him the commission that he should have been paid was calculated to destroy or seriously damage the trust and confidence between the parties. Perhaps surprisingly, I was not addressed by either party on whether the failure to pay commission properly owed was, in itself, a fundamental breach of contract. In any event, I think that failure was so serious that the Claimant would be entitled to treat the contract as being at an end. Commission was central to the Respondent’s remuneration of employees in the Claimant’s role. It was of huge importance to the Claimant. It is difficult to imagine a more fundamental breach that to fail to pay him commission to which he was entitled 259. I find that the Respondent had no reasonable and proper cause not to pay the Claimant the commission to which, I have found, he was entitled. 260. I find that the Claimant did resign because of that breach. 261. Issue 6.4 is one I find more difficult. The only breach I have found is in the failure to pay the commission on the Leonardo deal. I understand that that commission would have been paid in January 2024. It is an issue that has perhaps not received the focus in submissions that I would have liked – although the parties did not, of course, know the factual findings I would make and I have already commented on the difficult nature of this case. 262. I note that pursuing a grievance procedure will not, of itself, amount to an affirmation of the contract. Mere delay does not in itself amount to an affirmation of the contract, unless accompanied by an express or implied affirmation, although delay can be evidence of an implied affirmation. 263. In this case, the Claimant carried on working for a period of months – the Leonardo commission was not paid in January 2024 (although it was plain some time before that that it would not be paid to the Claimant). He raised his written grievance in March, but had already made it plain that he was happy. 264. Authority establishes that, if an employee makes clear his objection to what has been done, he is not taken to have affirmed the contract by continuing to work and draw pay for a limited period of time. 265. On balance, I find that the Claimant did not affirm the contract. He made clear that he did not accept that the Respondent was entitled not to pay him the Leonardo commission. He pursued formal grievances. I do not think that the Respondent could fairly have concluded at any time that the Claimant was accepting the position, and moving on. 266. The constructive dismissal was not otherwise fair. Dismissal 267. In the light of my findings, the issues in Issue 7 and 8 fall away. Unauthorised deductions 268. I have set out my conclusions on the contractual provisions relating to commission. 269. My conclusions are as follows: (a) Re issue 9.2.1, I have found that the Claimant had no contractual right to be credited for this deal (b) Issue 9.2.2 seems to me to be a framing of other specific questions; (c) Re issue 9.2.3 I have found that this agreement was reached and that the Respondent was bound to honour it; (d) Re issues 9.2.4 and 9.2.5, I have found that both go to SPIFs and that the SPIFs were not a contractual entitlement. 270. Re Issue 9.3, it would follow from my resolution of issue 9.2.3 that the Claimant was not paid commission that he should have been paid. The amounts are a matter for resolution when considering remedy. 271. It is not contended that the deduction was required or authorised by statute, and I have not accepted that it was required or authorised by a written term of the contract. Time limits 272. The only issue of time that required resolution, on the basis of my findings, was whether the Claimant’s claim for commission was brought within the requisite time period. For the reasons set out above, I find that it was. Remedy 273. Having delivered my decision on liability, and given the parties some time to consider the issues around remedy, the parties advised me that they had not been able to agree quantum, and were unlikely to be able to do so. They asked me to adjourn consideration of quantum to a later date. 274. I was reluctant to do so. I pressed the parties, to try to ascertain whether it might be possible for me to resolve the issues relating to quantum today. In answer to me, counsel for the Claimant indicated that one reason for not being able to progress matters was that his client had difficulty understanding my reasons for dismissing some parts of his claim. 275. The Claimant is, of course, entitled to written reasons, and to seek advice on appealing my conclusions. But consideration of the remedy that I award him is a different thing. The remedy that I award him will be based on the elements of his claim that I have upheld. I made clear to the Claimant that, if I conclude at the adjourned hearing that a wish to obtain remedies for complaints that I have not upheld, has gotten in the way of focussing on the remedies available for the complaints that I have upheld, I am likely to view that as unreasonable behaviour. 276. I reluctantly came to the conclusion that I should adjourn consideration of remedy to a future date. I have made a separate order providing for that.