Mr R Poulton v Butlins Skyline Ltd: 6007251/2024
REASONS
[1]By a claim form presented on 31 July 2024, the Claimant brought the following complaints:(a) Discrimination on the grounds of age;(b) Detriment and dismissal on the grounds of public interest disclosure (‘whistleblowing’); 1 of 8(c) Unpaid notice pay;(d) Unpaid redundancy payment;(e) Unpaid wages.complaints:
[2]The case came before EJ Livesey for a TCMPH on 30th April 2025 and he listed the case for today’s preliminary hearing to determine the following issues:1.1 Whether any application made by the Claimant to amend his claim ought to be granted;1.2 Whether any of the claims have no reasonable prospects and ought to be struck out (rule 38);1.3 Whether any of the claims have little reasonable prospects and or whether the Claimant ought to be required to pay a deposit order as a condition of pursuing them to a hearing, limited to £1,000 (rule 40);1.4 What further directions are necessary for the final hearing[3]Amendment Application / Age Discrimination – As set out above in his original claim form the claimant had ticked the box at 8.1 to indicate that he was bringing a claim for age discrimination. However no details of that claim were set out in the ET1/Claim Form. In his CMO EJ Livesey recorded the following: 36.1 In relation to the complaints of discrimination claim, the Claimant identified the following comments as having been acts of discrimination; references to him as ‘dad’ and ‘grandad’ by his colleagues and assertions that his views were from ‘another century’. He said that he had raised complaints to HR and other managers (Ms Blackman, Ms Peterson and another manager ‘Simon’) which were not taken forward or taken seriously. Those complaints were not within the Claim Form. The Claimant would need to apply to amend to include them. He was not asserting that any of the matters which were in the claim form had been acts of discrimination;[4]Put simply, whilst the box to indicate that a claim of age discrimination had been ticked, the claimant had confirmed that none of the factual allegations contained in the ET1/claim form were allegations of age discrimination (from which it follows automatically that there were in fact no allegations of age discrimination before the tribunal); and the allegations which were allegations of age discrimination, as identified by EJ Livesey, were wholly new and would require permission to amend. He gave directions for an application to amend to be made by 25th May 2025, which would be determined at this hearing.[5]In fact the claimant did not make any such application. In the course of this hearing he stated both that he had been homeless, had no access to legal advice, and that in any event EJ Livesey was wrong and that having been identified as a claim in the claim form he did not need permission to amend. 2 of 8[6]The respondent submits that as a matter of fact, as identified by EJ Livesey, there are at present no age discrimination claims before the tribunal; and the claimant has not used the opportunity provided to make the application to amend. It follows automatically that as there is no amendment application, that the age discrimination claim is bound to be dismissed as having no reasonable prospect of success in that there is no factual allegation of age discrimination before the tribunal.[7]In my judgement this must be correct and the claimants claim for age discrimination will be dismissed. Claims Having No Reasonable Prospect of Success[8]Redundancy Pay -The respondent submits that the claimant’s claim for redundancy pay is bound to fail for two reasons. Firstly he was not dismissed for redundancy (see below); and secondly he had less than two years employment and was not entitled to redundancy pay in any event.[9]In my judgement this must be correct; and this claim will be dismissed.[10]Unlawful Deduction From Wages – The claimant’s case as set out in EJ Livesey’s CMO is: Did the Respondent make unauthorised deductions from the Claimant’s wages and if so how much was deducted? The Claimant’s case here is that he was not provided with his contractual minimum hours on occasions and suffered a loss which will be set out in the Schedule which will be filed in accordance with the Order above[11]The claimant did not comply with the order to provide a Schedule of Loss, and so it is not known how much is claimed or how it is calculated. The respondent submits, however, that there is a more fundamental objection to the claimant’s claim. As set out in EJ Livesey’s CMO, and as confirmed orally in this hearing; the claimant’s case is that under the terms of his original contract of employment that he had a guaranteed forty hour working week; but that the respondent unilaterally varied it to a zero hours contract. He contends that the unilateral contractual variation is void and that here has been an unlawful deduction from wages in respect of any week thereafter in which he was not provided with and/or paid for forty hours work.[12]The respondent submits that this is demonstrably factually incorrect. Both the contracts are in the bundle, and whilst there are differences, there is no change in respect of the hours of work. Clause 6 of the original contract provides: Your normal working hours will be contract* hours per week; however, you may be scheduled to work less hours, or be required to work additional hours, as the needs of the business dictates. Your days and hours of work will be confirmed to you on a rota in advance and you shall be paid for your hours of work in accordance with clause 8 (which provides for the rate of pay for the hours worked). 3 of 8 *Defined subsequently as 40 hours.[13]Clause 6 of the second contract is identical. It follows, submits the respondent, that the claimant has never had the right to work a guaranteed forty hours per week. Under the terms of his original contract the respondent was entitled to rota him for fewer than forty hours a week, and to pay him for the hours he actually worked, and that insofar as he was rota’d to and was paid for fewer hours in any given week that is in accordance with both his original and subsequent contract and necessarily not unlawful.[14]In my judgement, on the basis of the contracts, this must be correct and this claim will be dismissed as having no reasonable prospect of success.[15]Automatic Unfair Dismissal – The respondent submits that the claimant’s claim for automatic unfair dismissal should either be struck out as having no reasonable prospect of success, or made the subject of a deposit order as having little reasonable prospect of success.[16]The claimant’s claim is that the reason or principal reason for his dismissal was that he had made protected disclosures and that his dismissal was automatically unfair pursuant to s103A Employment Rights Act 1996. He does not have sufficient length of service for a claim for “ordinary “ unfair dismissal; and success in this claim depends completely on establishing the necessary causal link between any disclosures and the decision to dismiss.[17]The disclosures relied on, as set out in EJ Livesey’s CMO are:3.1.1.1 Oral disclosures on multiple occasions to the security personnel (including Mr Dabner, the Head of Security and Duty Managers) on site during the final 6 months of his employment. They concerned drug use and drug dealing on site amongst the Claimant’s colleagues and death threats that he had received;3.1.1.2 Oral disclosures to the Avon and Somerset Police over the same period about the same things;3.1.1.3 Oral disclosures to the HR department over the same period about the same things;[18]The respondent contends that these particulars are insufficient in that when the disclosures were made, to whom they were made and the information disclosed (i.e. who was taking dealing drugs, where and in what circumstances) is not possible to know and, other than Mr Dabner, they have no idea which or how many witnesses they would need in the first place to interview, and in the second place to call to any hearing to give evidence. For the purposes of today’s hearing I will assume that at least one or more disclosures was made to Mr Dabner and that it was a disclosure of criminal activity which was in the public interest as it revealed drug dealing/taking in a family resort where children are present. It follows that there is no basis for a strike out/deposit order in relation to the disclosures themselves. 4 of 8[19]The claimant’s case is that the link between the disclosures and the dismissal was a scheme directed or co-ordinated by HR (when Mr Cook described this as a conspiracy theory the claimant took great exception but the precise word to describe it is immaterial.) The claimant contends that the respondent generally, and the HR department in particular either actively encourages, or at least turns a blind eye to drug dealing and drug use among staff and guests. When he blew the whistle on this he was undermining their business model and a decision was made and pursued to concoct disciplinary allegations against him so as to secure his dismissal. They subsequently directed the disciplinary process; and the decision makers did not draw independent conclusions but were instructed by HR as to the decisions they should make. If and to the extent that HR the involvement of HR is not obvious, they should be perceived as operating behind the scenes.[20]The respondent submits that this is absurd and not supported by any evidence. On 3rd May 2024 the claimant was issued with a final written warning for gross misconduct, which would expire in 12 months. The misconduct was improper behaviour and making sexist remarks. That conclusion was supported by a number of witness statements which paint a picture of the claimant as rude and confrontational towards, in particular younger and/or female colleagues, and making sexist remarks about women not being football fans. The claimant’s contention that these are false allegations and/or that those who made them were put up to it by HR is not supported by any evidence at all, and the process followed was transparently fair.[21]More pertinently the specific matters which led to the claimants dismissal are on any analysis events which occurred, and which have not been invented by HR. The first involved a confrontation with a colleague, to which security were called. The second involved complaints from a guest in respect of which there may be disputes as to precisely what was said or done, but what is clear is that the allegations were not invented or influenced by HR or anyone else.[22]The respondent submits that the reason for the claimant’s dismissal is clear from the documents and that the assertion that the reason or principal reason for his dismissal was the making of any protected disclosure has no, or on any analysis little reasonable prospect of success.[23]In am not quite persuaded that the claimant has no reasonable prospect of success, but it is clear in my judgement that it has little reasonable prospect of success and it will be the subject of a deposit order.[24]In respect of his means the claimant said that he had none and had no means of paying any deposit, in however small an amount. I have made a deposit in the circumstances in a nominal amount because the lack of prospect of success should be reflected in some order, albeit for a very limited sum.[25]Public Interest Disclosure Detriment / and Wrongful Dismissal[26]The respondent is no longer pursuing its application for strike out or deposit orders in respect of these claims. 5 of 8[27]Further and Better Particulars – The respondent has sought Further and Better Particulars of the protected disclosures which for the sake of completeness are repeated:3.1.1.1 Oral disclosures on multiple occasions to the security personnel (including Mr Dabner, the Head of Security and Duty Managers) on site during the final 6 months of his employment. They concerned drug use and drug dealing on site amongst the Claimant’s colleagues and death threats that he had received;3.1.1.2 Oral disclosures to the Avon and Somerset Police over the same period about the same things;3.1.1.3 Oral disclosures to the HR department over the same period about the same things;[28]The claimant is directed to supply Further and Better Particulars of the disclosures set out above setting out as in as much detail as the claimant is able: i) When each disclosure was made; ii) To whom it was made; iii) The information disclosed CASE MANAGEMENT ORDERS The Employment Judge made the following case management orders: Listing of the final hearingcomplaints:
[1]The case is not currently listed for final hearing; and will be listed after the directions below have been complied with. Claims and Issues[2]The claims and issues, as discussed at this preliminary hearing, are set out above. Further information[3]The Claimant must write to the Tribunal and the Respondent within 21 days of the date on which this CMO is sent to the parties with the following further information:3.1 Further and Better Particulars of the alleged protected disclosures as set out in para 28 above.3.2 Written notification of whether he has paid the deposit order and is pursuing his claim for automatic unfair dismissal. 6 of 83.3 Whether he is able to participate in a remote/video hearing and/or if he wishes to attend an in person hearing whether he has a preference for the claim being listed in Bristol or Exeter. Further Directions[4]Within 14 days thereafter the respondent is directed to supply : i) A time estimate for the hearing of the remaining claims; ii) Draft directions for the remaining claims; iii) Inconvenient dates for the period April to October 2026.[5]The EJ will thereafter give directions for the final hearing. Schedule of Loss[6]The Claimant is ordered to provide to the Respondent and to the Tribunal, so as to arrive within 21 days of the date on which this CMO is sent to the parties a properly itemised Schedule of Loss which is a summary calculation showing what financial sums of loss he claims to have suffered as a result of the matters complained of reflecting, if appropriate, earnings in any employment since the date of his dismissal. The Claimant is also ordered to include information relevant to the receipt of any state benefits.[7]If the Claimant has been dismissed and wants to be reinstated or re-engaged, the Schedule of Loss must say so.[8]In the event that the Claimant is seeking compensation for injury to feelings arising out of alleged acts of discrimination, the Claimant is also asked to specify what figure he believes should be awarded in that respect. He is referred to paragraph 14 of the section of the Presidential Guidance on General Case Management headed ‘Remedy’ and the guidelines in the case of Vento-v-Chief Constable of West Yorkshire Police, as recently updated by the President; https://www.judiciary.gov.uk/wp-content/uploads/2017/07/vento-consultationresponse-20170904.pdf (see also the hyperlink for the Guidance at the bottom of this Order).[9]In the event that the Claimant will seek to recover losses within reference to pension entitlement, he is referred to the Presidential Guidance on the Principles for the calculation for pension loss; https://www.judiciary.gov.uk/publications/employment-rules-and-legislationpractice-directions (for England and Wales). 7 of 8