Mr M A C Terron v China Unicom (Europe) Operations Ltd: 6008481/2024 and 6008316/2024
EMPLOYMENT TRIBUNALS
Case No 6008481/2024, 6008316/2024
Between
Mr M A C TerronClaimantChina Unicom (Europe) Operations LtdRespondent
Before
Employment Judge Eleena Misra KCIn person for claimantDate 18 September 2024
JUDGMENT
The Claimant’s application for interim relief under sections 128-129 Employment Rights Act 1996 (‘ERA’) in relation to his claim for automatic unfair dismissal contrary to section 103A ERA fails and is dismissed. JUDGMENT having been sent to the parties on 1 October 2024 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013.
REASONS
[1]The Claimant’s application for interim relief under sections 128-129 Employment Rights Act 1996 (‘ERA’) in relation to his claim for automatic unfair dismissal contrary to section 103A ERA failed and was dismissed by a judgment promulgated on 1 October 2024, oral reasons having been given to the parties on 18 September 2024.[2]The Claimant made a request for written reasons on 5 October 2024 having previously requested them before the judgment was sent to the parties but not at the hearing itself.[3]The Respondent drew to my attention at the beginning of the hearing on 18 September 2024 that its solicitors, Doyle Clayton LLP, had instructed me as a barrister early in 2024 on a single piece of written work and had not instructed me thereafter. I confirmed that was the position as at the date of the hearing having been alerted to the identity of the Respondent’s solicitors by Leading Counsel who properly drew this to my attention and I asked the parties if they had any concerns about my hearing the application and conveyed that I felt able to discharge my duties as a judge professionally and impartially but would consider any representations. The Claimant and Respondent confirmed that there was no application for me to recuse myself from sitting and having independently considered the position having regard in particular to any conflict of interest or perception of bias (in particular by reference to Magill v Porter [2001] UKHL 67; [2002] AC 357) I was satisfied that I should hear the case. The Application[4]The Claimant, who was a Senior Procurement Manager, was dismissed by the Respondent on 8 August 2024. He presented an ET1 claim form on 13 August 2024 which was within 7 days of dismissal. In that ET1 he applied for interim relief.[5]The Claimant makes various claims including a claim for automatic unfair dismissal contrary to section 103A ERA 1996 and his application for interim relief under section 128-129 ERA relates to this claim alone. There are claims for discrimination relating to different protected characteristics (age, race, disability and sex) and the Claimant asserts that his dismissal was unlawful contrary to the Equality Act 2010 though those claims do not concern the application he makes. It is relevant, however that the Claimant appeared to be advancing multiple reasons why he complains that his dismissal was unlawful and the assertion that the reason or principal reason for his dismissal was that he had made a qualifying and protected disclosure is but one of them.[6]The Respondent was served with the Claimant’s ET1 and application though it did not receive it until 11 September 2024 giving it less than a week to prepare for the hearing; the deadline for submitting its ET3 has not yet passed and (understandably) no ET3 had yet been presented.[7]The Claimant’s application was explained in a carefully prepared skeleton argument and the Respondent also submitted a skeleton argument from Leading Counsel. Documents[8]The documents I had before me in determining the application were as follows:(a) Claimant’s bundle and supplemental bundle which exceeded 400 pages – I only read the documents I was taken to or which were referred to in the Claimant’s skeleton or oral submissions having made it clear that was what I would do at the outset of the hearing;(b) Claimant’s skeleton argument;(c) Respondent’s bundle of documents which was 116 pages; again, I read the documents I was referred to;(d) Respondent’s witness statements from Xenia Sit (President of the Respondent) and Qian Li (Head of the Office Department which included HR, Legal, IT and Administrative functions);(e) Respondent’s skeleton argument together with supporting authorities and(f) Respondent’s chronology.
Procedure
[9]It was common ground that I was not required to conduct a mini-trial and that my task was to conduct a summary or review type assessment of the materials available to me in reaching my decision, consistent with the approach suggested in Raja v SS for Justice UKEAT/0364/09/CEA which I canvassed with leading Counsel at the outset of the hearing: 25. What a Tribunal has to do in an application for interim relief is to examine the material put before it, listen to submissions and decide whether at the final hearing on the merits “that it is likely that” that Tribunal will find that the reason or reasons for the dismissal is one or more of those listed in section 129(1).[10]As such, the witnesses did not give oral evidence and it was not tested in cross-examination, consistent with the purpose of sections 128-129 ERA and the authorities as to the Tribunal’s proper function in determining such applications. The parties were given time to consider documents while I undertook preliminary reading and to make submissions. The day was somewhat interrupted by a fire alarm which caused approximately 30 minutes’ delay but we were able to conclude submissions in good time enabling me to deliberate and give judgment in the day allocated to this matter.
Law
[11]I reminded myself of the clear statutory language of s.103A ERA and ss. 128-129 ERA. See: Taplin v C Shippam Ltd [1978] ICR 1068, EAT, followed in Dandpat v University of Bath UKEAT/0408/09 and London City Airport v Chacko [2013] IRLR 61, EAT. This requires “a significantly higher likelihood” of success than being more likely than not or ‘better than evens’ as I might otherwise put it: Ministry of Justice v Sarfraz [2011] IRLR 562 at para 16.[12]The Claimant relies on section 43B(1)(a) ERA in respect of his claim (as to which I noted the use of the word “likely” in the statutory language). I have reminded myself of the Court of Appeal’s decision in Kilraine v LB Wandsworth [2018] ICR 1850 as to what amounts to a disclosure of information within the statutory language. A disclosure needs to have sufficient factual content and specificity as to be able to be deemed to be capable of showing one of the matters listed in section 43B(1) ERA. I am entitled however to have regard to the relevant context in determining sufficiency, which may include other communications and industry or sector specific common knowledge.[13]It is well established in law that in order to have the requisite reasonable belief provided for in the statute, it is not necessary for the Claimant to be right or correct in what he believes: Babula v Waltham Forest College [2007] ICR 1026. However, the belief must be subjectively genuinely held and objectively reasonable: Chesterton Global Ltd v Nurmohamed [2018] ICR 731 (CA).[14]The Chesterton decision is also a clear reminder of the proper approach to be taken to the public interest element of the wording in s.43B(1) ERA, further explained in Dobbie v Felton (t/a Feltons Solicitors) [2021] IRLR 679 (EAT).[15]Section 103A ERA provides that a dismissal is automatically unfair if the reason or principal reason is that the Claimant has made a protected disclosure. This a different legal test on causation to that applied to claims for detriment under section 47B ERA in which the well-known “material influence” test is adopted.[16]In conducting my summary assessment I necessarily focussed at this early stage on the likelihood (or not) of the Claimant succeeding in each constituent element of his claim under s.103A ERA. It must follow that if he fails to meet the threshold of likelihood on any one of the elements then the entire application must as a matter of law fail. Claimant’s Key Arguments[17]The Claimant was dismissed by the Respondent ostensibly by reason of redundancy after it followed a process by which it sought to inform and consult with the Claimant. The Claimant says that the entire redundancy was a sham and that the reason or principal reason that he was dismissed was that he made protected disclosures on 30 March 2021 and 11 April 2021 and raised these again in 2023.[18]The Claimant does not know who was responsible for the decision to dismiss him but surmises that a variety of people who were aware of his disclosures were somehow involved and motivated by the fact of his disclosures to dismiss him.[19]The Claimant says that his workload reduced over time which he said was deliberate and he felt unsupported by his line manager and by the legal department. He also contends that his line manager told him in June 2023 that a decision had been taken to get rid of individuals who were not favoured by senior management.[20]The Claimant also says that the Respondent was recruiting for procurement managers which is at odds with its assertion of there being a redundancy situation.[21]I have not repeated all of the Claimant’s arguments but had them all in mind and adopted a holistic approach to my assessment of the available material at the hearing. Respondent’s Key Arguments[22]The Respondent says that it has not had long to prepare for this hearing and was effectively ambushed by new documents and arguments today. I noted that the Respondent’s Leading Counsel however pragmatically sought to read in and use the time available today having submitted a skeleton in advance and did not ask for an adjournment which is unsurprising given the nature of the application. I accepted however that the Respondent’s legal representatives have had to work under serious time pressure and have not had a reasonable opportunity to take full instructions on matters which arose from the Claimant’s skeleton and submissions.[23]The Respondent relied on two witness statements and made the point that the putative disclosures were made in March and April 2021 and there was no suggestion at the time that they were received in hostile manner. It argued that there is contemporaneous evidence that the C was on a performance improvement plan for reasons entirely unconnected with his disclosures and that his services were not requested by two departments in the business due to his perceived poor performance, which is why he was effectively the “last man standing” in the Marketing Department when the Respondent’s parent company directed a restructuring exercise should take place and its Management Committee determined to restructure the procurement function at the start of June 2023. The Respondent pointed to the substantial gap in time between the March / April 2021 disclosures and the revival of those concerns in 2023 after the Claimant became aware that “the writing was on the wall” and he was going to lose his job.[24]There were two other managers who were also taken through a formal process in terms of redundancy consultation; they scored higher than C so were the two to keep their jobs it will be said.[25]Leading Counsel referred to the numerous other claims brought by the Claimant concerning his dismissal and had taken instructions to the effect that the procurement roles which the Respondent was recruiting for were ICT roles which were different in scope to the Claimant – he disagrees.
Conclusion
[26]There are several substantial factual disputes in this case and there is bound to be a significant amount of disclosure and witness evidence required to determine them in due course.[27]I was not satisfied that the Claimant has a “pretty good chance” at proving that he made qualifying and protected disclosures; I had insufficient evidence before me to reach that conclusion on my summary assessment today.[28]Again, on a summary assessment, my initial view was that the Claimant has a somewhat better chance of establishing that his emails in March and April 2021 were protected disclosures than of showing that he was dismissed for the reason or principal reason that he had made them. However, I was far from satisfied that the Claimant met the necessary threshold, at this stage, on an interim relief application, on causation. There was evidence that pointed in different directions, plausible arguments advanced by both parties, and the Claimant was himself unclear as to how the necessary connection between the making of the disclosures and his dismissal was to be made. When I asked him about this he fairly accepted that he was not sure but speculated that because a number of named individuals working in Human Resources and Legal and his line manager had some knowledge of his concerns and were in some instances copied into emails this evidenced that his dismissal was because of the disclosures he had made. That is far from clear and remains to be tested in evidence at a final hearing. However, I did not assess the claim on causation as meeting the threshold of likelihood required to grant interim relief. There are simply too many different strands of evidence, plausible, as I said, in different directions, and the lengthy gap in time between 2021 and the dismissal makes it even harder for me to reach a conclusion that it is likely that the Claimant will succeed at the final hearing at this stage. The picture was simply too uncertain at this early stage on the material available to me.
Conclusion
[1]By email of 2 June 2025, the Claimant applied for written reasons for my decision not to grant him anonymity in these proceedings, which I announced at the preliminary hearing on 15 May 2025, when I gave oral reasons. The preliminary hearing summary containing the decision (but not the reasons) was[2]The Claimant made his application to the Tribunal under rule 49 of the 2024 rules for an anonymisation order in an email dated 5 October 2024. Attached to the application was a more detailed document. He provided a skeleton argument and made further oral submissions today. The Respondent opposed the application in its skeleton argument for today’s hearing and Counsel for the Respondent supplemented those arguments orally.[3]The Claimant’s grounds for making the application may be summarised as follows. 3.1. Publication of his name and the fact that he is a disabled person would be detrimental to him in terms of his employability. 3.2. It would open him up to the possibility of discrimination on grounds of disability in that it might cause him not to be selected for interview for jobs. 3.3. It is unlawful in Spain for GDPR reasons to publish the name of an individual and details about their health conditions. 3.4. Because the Claimant made public interest disclosures naming Russian entities potentially involved in money-laundering, in the current context of the Russia/Ukraine war, it would create a risk of what he described as ‘verbal abuse or assault’. 3.5. The case does not raise issues of public importance. 3.6. If the anonymity order is not granted, he would be ‘forced to drop proceedings’.
The law
[4]Rule 49 of the Employment Tribunal Procedure Rules 2024 provides: 49.—(1) The Tribunal may, on its own initiative or on the application of a party, make an order with a view to preventing or restricting the public disclosure of any aspect of proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person. (2) In considering whether to make an order under this rule, the Tribunal must give full weight to the principle of open justice and to the Convention right to freedom of expression. (3) Any order made under this rule may require— (a)that a hearing that would otherwise be held in public be conducted, in whole or in part, in private; (b)that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record; (c)that measures are to be taken to prevent witnesses at a public hearing being identifiable by members of the public; (d)that a restricted reporting order is in place within the terms of section[11](restriction of publicity in cases involving sexual misconduct) or 12 (restriction of publicity in disability cases) of the Employment Tribunals Act; (e)that the name, address or other information of, or relating to, any person be redacted from a claim form, response form, witness statement or any other document in the proceedings. (4) Any party, or other person with a legitimate interest, who has not had a reasonable opportunity to make representations before an order under this rule is made may apply to the Tribunal in writing for the order to be revoked or discharged, either on the basis of written representations or, if requested, at a hearing. (5) Where an order is of the kind mentioned in paragraph (3)(d), the order— (a)must specify the person whose identity is protected, (b)must specify the duration of the order, (c)may specify particular matters of which publication is prohibited as likely to lead to that person’s identification, and (d)may specify that it also applies to any other proceedings. (6) The Tribunal must ensure that a notice that an order has been made under this rule in respect of particular proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place. (7) ”Convention rights” has the meaning given to it in section 1 of the Human Rights Act 1998(1). 5. ‘Convention rights’ has the meaning given to it in section 1 of the Human Rights Act 1998, that is the rights and fundamental freedoms set out in the European Convention of Human Rights, Articles 2-12 and 14. The rights the Claimant relies upon are the article 2 right to life and the article 8 right to respect for his private and family life. 6. In A v Sec State for Justice UKEAT/0263/17 the EAT emphasised that Rule 49 (as it is now) requires application of two matters: first, the Tribunal must decide whether there is any basis under Rule 49(1) allowing for an order. The restriction on public disclosure can only be imposed insofar as the Tribunal considers that it is necessary for at least one of the three specific matters set out in Rule 49(1) (in this case the Claimant relies upon his alleged need to protect his Convention rights); and second, the Tribunal must give full weight to the importance of the principle of open justice (article 6) and to the right to freedom of expression (article 10). 7. In BBC v Roden [2015] IRLR 627 (at [50]) Simler P explained why open justice was so important: ‘The default position in the public interest is that judgments of tribunals should be published in full, including the names of the parties. That principle promotes confidence in the administration of justice and the rule of law. The reporting of court proceedings in full without restriction is a particularly important aspect of the principle and withholding a party's name is an obvious derogation from it, requiring cogent justification for its restriction … The mere publication of embarrassing or damaging material is not a good reason for restricting the reporting of a judgment, as the authorities make clear.’ 8. Simler P gave further guidance in Fallows v News Group [2016] ICR 801 (at [48]): ‘(i) That the burden of establishing any derogation from the fundamental principle of open justice or full reporting lies on the person seeking that derogation. It must be established by clear and cogent evidence that harm will be done by reporting to the privacy rights of the person seeking the restriction on full reporting so as to make it necessary to derogate from the principle of open justice; (ii) Where full reporting of proceedings is unlikely to indicate whether a damaging allegation is true or false, Courts and Tribunals should credit the public with the ability to understand that unproven allegations are no more than that. Where such a case proceeds to judgment, Courts and Tribunals can mitigate the risk of misunderstanding by making clear that they have not adjudicated on the truth or otherwise of the damaging allegation; (iii) The open justice principle is grounded in the public interest, irrespective of any particular public interest the facts of the case give rise to. It is no answer therefore for a party seeking restrictions on publication in an employment case to contend that the Employment Tribunal proceedings are essentially private and of no public interest accordingly; (iv) It is an aspect of open justice and freedom of expression more generally that Courts respect not only the substance of ideas and information but also the form in which they are conveyed […] 9. There is no general exception to open justice where privacy or confidentiality is in issue. Anonymity will only be granted where it is strictly necessary, and then only to that extent, whether or not the parties have a strong view either way, and whether or not the press is particularly interested in the case. This point was made in F v G [2012] ICR 246 and referred to in Roden at [47]. 10. If the basis for the restriction under Rule 49(1) is Convention rights, the Tribunal must decide whether not granting the anonymity order would entail an infraction of the claimant’s article 8 rights which was outweighed by the derogation that granting the order would entail, from the principle of open justice at common law and as articulated in the corresponding countervailing Convention rights (F v J [2023] EAT 92 at [16].) Conclusions 11. There is no evidence before me, apart from a bare assertion, that because the Claimant’s protected disclosures relate to Russian entities, publication of his identiy in these proceedings will put him at any risk at all, let alone risk of abuse and/or assault. The alleged disclosures were made in 2021. The Respondent’s pleaded case is that the Claimant’s disclosures were contemporaneously investigated, and no wrongdoing was found to have occurred (this will likely be recorded in any judgment). The underlying truth of the Claimant’s alleged disclosures will not be dealt with by the Tribunal. The judgment online in respect of the Claimant’s interim relief application related to his s. 103A ERA claim and he did not ask for it to be anonymised.
Conclusions
[12]His application on this basis is, in my view, entirely speculative, indeed fanciful. I do not accept that the Claimant’s Convention right to life is engaged in these circumstances; insofar as the application is based on this ground, it is refused.[13]Turning to the Claimant’s reliance on his article 8 rights, his evidence about not being offered jobs was generalised and unsatisfactory. He mentioned one job in relation to which he received no reply; he had mentioned his disability in his application; however, there was no evidence before me to suggest that he was not considered because of his disability. In relation to another job for which he was rejected, he accepted that he did not have a qualification which was a desirable criterion for the job.[14]Further, notwithstanding the fact that the interim relief judgment has been published without being anonymised, the Claimant has already secured temporary employment and was sufficeintly optimistic that he would secure fulltime employment soon, that his availability to attend a future hearing, which I was seeking to list at the preliminary hering, was very limited, partly for that reason.[15]In my judgment, the Claimant has not led cogent evidence of a link between publication of his name, together with the fact of his disabilities, and a detrimental impact on his ability to secure future employment.[16]I accept the Respondent’s submission that, if the Claimant’s concerns were as serious as he now suggests, it is surprising that an application was not made sooner. There was no application for a privacy order before or at the interim relief hearing, or at the previous preliminary hearing before EJ Howden-Evans (which, of course, was held in private, but at which he might have made the application). After the interim relief hearing, at which the Judge delivered oral judgment, the Claimant applied for written reasons, in the knowledge that they would be published online, which they were on 8 October 2024. Notwithstanding the availability of that judgment and reasons, the Claimant has shown no sign of being inhibited from pursuing his claims. I do not accept his evidence that he would be forced to drop the proceedings, if I do not grant anonymity.[17]In my judgment publication will amount to a limited interference in the Claimant’s article 8 right to a private life in one respect only: it may disclose certain information which he would prefer to remain private.[18]Turning to the principle of open justice, I remind myself that the reporting of court proceedings without restriction is a particularly important aspect of open justice and the default position is full publication. The naming of parties is part of ordinary litigation and parties should expect names to be published. I bear in mind that Tribunals usually exercise great care when referring to matters relating to disability, indeed any sensitive matter.[19]There must be clear and cogent evidence that harm will be done by full publication to the privacy rights of the individual, so as to make it necessary to derogate from the principle of open justice. Anonymity will only be granted where it is strictly necessary.[20]The fact that there is no particular public interest in the fact of the Claimant’s case is not a material factor. The Convention rights to freedom of expression and open justice are rights that reside with the public, not just the press.[21]For the avoidance of doubt, the Employment Tribunal in the UK is not bound by Spanish law; GDPR considerations do not apply to its judgments; I accept Ms Berry’s submission that the Tribunal is not a data controller in that context.[22]Having regard to my conclusion that there is no clear or cogent evidence that the Claimant’s employment prospects will be harmed, and that any interference with the Claimant’s article 8 rights is limited, I have concluded that the transparency required by the principle of open justice, including the requirement for public access to judicial proceedings or pronouncements, outweighs that limited interference. I am not persuaded that anonymisation of the judgment would be a proportionate step or is strictly necessary.[23]For these reasons, the Claimant’s application is refused.