Mr L Hounsome v Team Industrial Services (UK) Ltd: 6020754/2024
EMPLOYMENT TRIBUNALS
Case No 6020754/2024
Between
Mr L HounsomeClaimantTeam Industrial Services (UK) LtdRespondent
Before
Employment Judge JohnsonUnrepresented for claimantMr David Flood (instructed by counsel) for respondentDate 19 January 2026
JUDGMENT
The judgment of the Tribunal is that: a) The claimant did not assert a statutory right that was protected by section 104 Employment Rights Act 1996; and, b) The claimant was not unfairly dismissed for the reason or principal reason that he asserted a statutory right that was protected by section 104 Employment Rights Act 1996.
REASONS
[1]These proceedings arose from the claimant’s employment with the respondent which began on 12 February 2024, and which ended on 30 July 2024. The claimant had been recruited as an ‘Internal Process Review Manager’ (the respondent described the substantive role as Site Manager), at the respondent’s Fawley site but because of business difficulties with a client, this role was no longer needed. Following an initial period working with this role but being allocated to other work areas, the claimant’s substantive role was terminated, and no permanent alternative vacancies were available. The claimant was told by the respondent that he had failed his probationary period. However, the claimant was allowed to work for a further period on temporary basis when he was told his employment was terminated on 30 July 2024.[2]The claimant presented a claim form on 3 December 2024 claiming automatically unfair dismissal. This was following a period of early conciliation from 1 August to 11 September 2024. The attached grounds of complaint identified as this claim as arising from section 104 Employment Rights Act 1996, (ERA 1996). This was because he believed the dismissal was directly linked to the claimant’s assertion of statutory rights. He identified several grounds and in particular his belief that his dismissal had been influenced by his assertion of statutory rights relating to redundancy and redeployment processes.[3]A notice of claim and notice of this final hearing was sent to the parties on 12 December 2024 and the respondent was permitted until 9 January 2025 to present a response. Standard case management orders were made.[4]On 14 December 2024, the claimant made an application to amend the claim to include a claim that he should receive a 25% uplift to any award because of a failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. He also notified an amendment to the grounds of complaint ‘timeline’ on 19 December 2024. On 2 January 2025, Judge Batten ordered that this be treated as an amendment to the claim.[5]The respondent presented a response and grounds of resistance on 9 January 2025. They resisted the complaint and while admitting that the claimant was dismissed within the meaning of section 95(1)(a) ERA 1996, they disputed that the claimant had alleged a right protected by section 104 and which had been infringed. They disputed that the claimant had the minimum 2 years continuous employment to allow him to bring an ‘ordinary’ unfair dismissal in accordance with section 108 ERA 1996. In the alternative, they relied upon the potentially fair reason of some other substantial reason.
Issues
[6]The issues which the Tribunal has been asked to consider under section 104 are as follows: Unfair dismissal Dismissal a) Can the claimant prove that there was a dismissal? Reason b) Has the respondent shown the reason or principal reason for dismissal? c) Was it a potentially fair reason under section 98 Employment Rights Act 1996? Fairness d) Was the reason or principal reason for dismissal that the claimant asserted a statutory right in accordance with section 104 Employment Rights Act and described in the section below? If so, the claimant will be regarded as unfairly dismissed. e) If not, applying the test of fairness in section 98(4), did the respondent act reasonably in all the circumstances in treating that reason as sufficient reason to dismiss the claimant? Relevant Statutory Rights (section 104(4) Employment Rights Act 1996 f) Did the claimant assert one or more of the statutory rights as defined in section 104(4) of the Employment Rights Act 1996? If so, when was the rights asserted, to whom was it asserted and which right(s) were identified? The following are relevant statutory rights: i) Any right conferred by the Employment Rights Act 1996 where the remedy involves a complaint to the Employment Tribunal? ii) The right conferred by section 86 of the Employment Rights Act 1996? iii) The rights conferred by sections 68, 86, 145 A & B, 146, 168, 168A, 169 and 170 of the Trade Union & Labour Relations (Consolidation) Act 1992? [I noted that these are trade union related rights] iv) The rights conferred by the Working Time Regulations 1998? [I noted that the various maritime related employment protection legislation also referred to within this subsection was not relevant]. v) The rights conferred by the Transfer of Undertakings (Protection of Employment) Regulations 2006? [It is understood that this case did not involve a transfer] Remedy for unfair dismissal g) If there is a compensatory award, how much should it be? The Tribunal will decide: i) What financial losses has the dismissal caused the claimant? ii) Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? iii) If not, for what period of loss should the claimant be compensated? iv) Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? v) If so, should the claimant’s compensation be reduced? By how much? vi) Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? vii) Did the respondent or the claimant unreasonably fail to comply with it by? viii) If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%? ix) If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct? x) If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion? xi) Does the statutory cap of fifty-two weeks’ pay apply? h) What basic award is payable to the claimant, if any? i) Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? Evidence used[7]The claimant produced a 12 page witness statement and gave oral evidence from 2pm until 3:45pm on Day 1 of the final hearing[8]The respondent relied upon 2 witness statements as follows: a) Sally Anne Desborough (Region General Manager); and, b) Natalie Mary Clement (HR Business Partner). Mrs Clement gave oral evidence from 3:45pm until the end of Day 1 and resumed on Day 2 at 10am and continued until 11:45am. Ms Desborough gave oral evidence from 11:55am until 1:15pm on Day 2.[9]Documents could be found in the respondent’s combined final hearing bundle which was 194 pages in length and included an index, pagination, copies of the proceedings and relevant documents.
Findings of fact
[10]The parties should note that the Tribunal’s findings of fact do not seek to deal with every point where the parties disagree, simply what is relevant to the issues which the Tribunal is being asked to consider. If the discussion of an incident or point is not referred to within these findings, it does not mean that it has not been considered by the Tribunal, simply that it is not relevant to the issues and the findings that we are required to make.[11]In terms of the findings that we make, the Tribunal has reached its decision on what it considers to be on balance of probabilities the most likely way/reason in which an incident arose. The respondent[12]The respondent (Team Industrial Services (UK) Limited), is part of a group of companies providing engineering support, training, maintenance and repair to equipment and infrastructure operated by a wide range of industries. It is understood that the respondent company employed at the relevant time more than 260 employees.[13]This case involved the respondent’s contract at the Exxon Mobil depot in Fawley, where they were engaged as a contractor. I accepted Ms Desborough’s evidence that during summer 2023 the respondent’s fellow group member company which operated within the US began to experience difficulties regarding its relationship with Exxon Mobil and the US Team Industrial employees were required to leave the Exxon sites there.[14]Time passed and by late 2023 these issues reached Exxon’s UK sites, and this had an impact upon the respondent company. It is not necessary to describe in detail what happened at this point, but following initial reassurances made by Exxon UK to the respondent company, from January 2024 Exxon ceased engaging with them. The claimant[15]These events unfortunately coincided with the respondent’s offer of a position to the claimant (Mr Hounsome) of Site Manager at the Fawley site. This was communicated to the claimant by letter dated 3 November 2023, (pages 55-6 of the bundle). A copy of the job summary was enclosed with the letter. The claimant accepted the offer, gave notice to his existing employer and agreed a start date with the respondent for 12 February 2024.[16]He signed his contract for this role on 27 November 2023, (p71). In relation to the contract, (pp 57 to 71), the following sections are relevant: a) Section 4.1 confirmed that he was appointed to the Fawley Site Manager role; b) Sections 3.2 and 3.3 provided for a 6 month probationary period; c) Section16.1 provided that during an employee’s probationary period, notice of 1 week by either party applied; d) Section16.2 provided that once the probationary period had been completed, employees must give four weeks’ notice and the respondent must give the same notice for the first four years of continuous employment, (with their notice increasing for each further year of continuous service worked by the employer following this initial four year period; and, e) Section16.3 provided that the notice period would begin from the day after the notice was given. Events arising during 2024[17]The actions of Exxon UK resulted in the termination of their arrangements with the respondent’s Fawley site. Consequently, the duties that would apply to the claimant in his contractual as role Site Manager ceased before he even began his employment in February 2024.[18]On 14 February 2024, Daniel Hardy (Regional Operations Manager UK South) sent an email to all UK employees announcing claimant as a new starter as an Internal Process Manager beginning that week. Mr Hardy referred to the recent events with Exxon, ‘…we have identified an opportunity to repurpose Leigh’s skills in the above interim role’, (p74). Consequently, the claimant remained contracted as a Site Manager but was working in this other interim role while the Exxon situation resolved in the way that the respondent hoped, with the Fawley site.[19]The claimant confirmed that he agreed to fulfil the interim role, but that management had expressed a feeling that Exxon ‘would come back on stream, being no more than ‘a temporary blip’. In his evidence he described being reassured on many occasions by Mr Hardy, Richard Jackson and Ms Desborough that relations with Exxon UK would be restored. This appeared to be the general optimistic view at the time within the respondent company and Ms Clement acknowledged in her statement that with hindsight, ‘…some may say we were naïve…’ but went on to say ‘…but we hoped that Exxon Mobil wouldn’t be able to continue at Fawley without our services.’[20]On 29 April 2024, the claimant sent an email to Ms Desborough and Mr Hardy referring to a conversation with DH and said ‘…I guess its fair to say its 50/50 if the role will materialise.’ He sought a discussion concerning what would happen to him and where he might be deployed if the Exxon work did not ‘come on stream’. He appeared concerned that he only had May and June remaining (‘This is now only 2 months away (May and June’)). I concluded that this referred to the conclusion of his perceived probation period. This email suggested that he was happy with his work with the respondent so far but was clearly concerned that he did not have a formal role and he had occupied a temporary role since he started, (p75). His email sent on 30 April 2024 to Ms Desborough and Mr Hardy under the heading ‘Fawley site Manager role’, stated ‘I am still currently in limbo, as previously advised to both, as the project scope still to be defined’, (p76).[21]On balance, I concluded that the claimant was appointed to the substantive role of Site Manager. But because of a lack of work arising from the Exxon issue, he was instead working to the job description of the Internal Process Manager role which was temporary and did not involve formal appointment.[22]Discussions took place amongst management on 26 June 2024. Mrs Clement from HR emailed Ms Desbororugh and enclosed recent communications regarding the claimant’s role and questioned whether it could continue. Her recommendation was that ‘…we ultimately need to end the probation on the Site Manager – Fawley role, in that he isn’t successfully fulfilling that role as it is no longer available and we have no visibility of when it will be. Even if Exxon make contact having the presence of a Site Manger 5 days per week is likely to be somewhat further down the line.’ She proposed offering the claimant a 3 month ‘…or whatever appropriate duration’ temporary contract as an Internal Process Review manager and issue new paperwork to that effect. she concluded her email by acknowledging that the claimant may decline and leave. (p84). I concluded that as decision was made to terminate the claimant’s substantive role during this discussion on 26 June 2024. However, it still needed to be communicated to the claimant.[23]An invitation email was sent by Ms Desborough to the claimant under the heading ‘Catch Up’ on 27 June 2024 to take place the same day. The claimant noted that Ms Clement was attending and a brief exchange took place querying whether he needed to prepare himself for ‘worrying news’. Ms Desborough explained that Ms Clement’s presence was because the claimant had requested ‘…an update on Exxon. We have obviously hit a mid-year point & we said that we would assess where we stood regarding the Exxon contract at this point so will discuss in the meeting’, (pp85-86). Given Ms Desborough and Mrs Clement’s discussions the previous day, it was recognised that the Site Manager role, the claimant’s substantive job, was no longer viable.[24]The meeting took place the same day on 27 June 2024 between Mrs Clement, Ms Desborough and the claimant. It was not surprisingly, an upsetting meeting for the claimant. He was informed that his employment was being terminated due to a failed probation. The claimant accepted that he was offered the temporary Internal Process Review role.[25]He believed that he had been made redundant and would have been happy to be declared redundant. Eventually he conceded that he took issue with being told that he had failed the probation which he felt was different to ending the probation. I accepted that the claimant was unhappy with the given reason for the termination being ‘failed probation’. I concluded he believed that this gave the impression that it ended through his fault rather than the external factors with Exxon. A discussion took place later that day, after the meeting. This was between the claimant and Mrs Clement where he challenged the ending of the probationary period. However, she confirmed that he could work in the identified interim role and he was encouraged to apply for the Quality Manger role which the respondent was at that stage carrying out a recruitment exercise.[26]During his evidence, the claimant confirmed that prior to this meeting on 27 June 2024 when notice was given to end the probationary period, he had not raised any statutory right. Consequently, any statutory right if asserted, took place following the respondent’s decision to terminate the substantive role.[27]A letter was sent by Mrs Clement to the claimant following the meeting. It was dated 22 July 2024. The claimant disputed that the reason for its sending being delayed until 22 July 2024 was to allow the Quality Manager interviews to be concluded. Whatever the reason for the delay, the letter referred to the meeting on 27 June 2024 and confirmed that he had been unsuccessful in passing his probation period for the Site Manager role. This permanent position was terminated with effect on 30 June 2024. It confirmed that the claimant agreed to continue in the temporary role from 1 July 2024. It also confirmed that he had been unsuccessful with his application for the Quality Manager role. The temporary role in the meantime was confirmed with a temporary contract being provided for the period of 1 July to 29 November 2024, followed by it continuing on a month by month basis subject to review, (p89).[28]A series of emails were sent by the claimant during the remaining period of his employment which reflected his general agitation regarding the decision communicated to him in the letter dated 22 July 2024.[29]Mrs Clement asked the claimant whether he was able to sign the temporary contract on 24 July 2024. The claimant responded by email on 25 July 2024 raising several concerns regarding communications before his employment commenced, referred to his substantive contract terms, communication since his employment commenced and the events when his contract was terminated, (pp93-96). The claimant appealed against the termination of the Site Manager role. An email exchange between Mrs Clement and Ms Desborough later that day and the latter stating that they should not be entering, ‘into negotiations with him or repeating the same conversation so that we do end up removing the temporary contract offer pending what he replies and/or says in the meeting?’ (p116). I understood that this related to the appeal meeting that would follow.[30]An appeal hearing was proposed to the claimant by letter dated 25 July 2024 and offering 1 August 2024 when it could take place, with Rachel Dixon (Finance Director – Eastern Hemisphere) chairing meeting and Mrs Clement being present, (p117). Mrs Clement in evidence explained that it was unusual to offer an appeal arising from an unsuccessful probation. However, it was acknowledged that the circumstances surrounding the claimant’s recruitment were unusual and it was felt that the claimant should have an ‘…opportunity to verbalise his points rather than constantly emailing.’ This appeal fell outside the usual procedures for the termination of probationary periods and it was unclear what powers Ms Dixon would have as appeal hearing manager and it was not expressly described in the available documentation.[31]Prior to the appeal taking place, the claimant sent an email to Mrs Clement and Ms Dixon on 29 July 2024, (pp90-1). He challenged Mrs Clement’s involvement in the appeal and argued that the Vice President of Global HR be appointed to the appeal hearing instead. He wished to submit new documentation and witness evidence and further particularise his complaint. Mrs Clement acknowledged that this caused concern because the claimant in her view was spending more time focusing upon the appeal rather than giving attention to his temporary role. It was considered unreasonable for Mrs Clement to be replaced as HR manager involved, ‘given the nature of the appeal and the amount of time he had been employed with the business.’ I concluded that while the respondent did not have a procedure in place where unsuccessful probations could be appealed, it had attempted to be reasonable and offer the claimant the means of ‘ventilating’ his grievances, rather that actually establishing a genuine appeal hearing. Unfortunately, this was not explained to the claimant, and the ‘appeal’ emboldened the claimant to treat the hearing as a formal process with the possibility of achieving what he considered the resolution of the matters raised in his previous correspondence.[32]Consequently, Ms Dixon concluded that the claimant’s email represented a breakdown in the relationship between the claimant and the respondent. Mrs Clement arranged an earlier call with the claimant on 30 July 2024. No formal notetaker was present. It took place remotely by Teams (or similar platform). It later transpired that the claimant had covertly recorded the meeting which is believed to have been begun 3 minutes into the call when the claimant asked for a moment to take another call. The transcript begins with the claimant feeling that the respondent has taken ‘offence’ because he has ‘asked…for some things to be considered’. Ms Dixon replies as follows: ‘Leigh [Hounsome], it isn’t going to change the outcome. We’re in a position ultimately where we’ve had to end…the contract. So we’ve ended the probationary period for the original contract that you entered into on the grounds that there isn’t a position there to fulfil.’ The claimant was unwilling to accept this argument and raised a few points where Ms Dixon tried to explain that they would not change the outcome before saying as follows: ‘I’m sorry, but I think…the position where we are now in…I think it’s clearly demonstrated that you’re not prepared to accept the business decision. And I’m note prepared to move from it. So unfortunately, I’m finishing this… [interrupted by utterances of denial and pleading from the claimant]…Unfortunately, we are terminating in this relationship.’ The conversation then continued for some time and the transcript suggests that the claimant was struggling to listen to what was being said and instead was seeking to suggest several things, one after the other. This included his belief that he was being blamed for the failure to renew the relationship with Exxon, that he was being made redundant, that he wanted to complete the project he was working on, that failure of probation was being used as an excuse. These represented a series of unfocused statements and Ms Dixon reminded him that he was being terminated with immediate effect and would be paid in lieu of notice. The notice pay was stated to be one month’s notice.[33]The transcript was lengthy and while it appears to have been taken from the claimant’s covert recording, it revealed that Ms Dixon and Mrs Clement were being extremely patient and allowed the claimant to speak at length and tolerated his numerous interruptions when they were trying to explain their position. There simply was an unwillingness on the part of the claimant to accept what he was being told. He remained unhappy with the decision that there had been a failure of probation. He argued on several occasions that the situation involved redundancy. Ms Dixon eventually decided to end the meeting and did so after trying to bring matters to an amicable close. The note of the meeting was roughly 1 hour in length, (pp 118 to 147).[34]It was a heated meeting The claimant sent an email to Mrs Clement the same day enclosing notice of a grievance which he had sent to Keith Tucker (respondent’s CEO) on 31 July 2024, (pp150-151). It was followed by an amended version sent on 2 August 2024, (pp152-154). He asserted that the appeal process which he believed he was entitled to had been cancelled and that he was terminated with immediate effect. He argued that this was retaliatory action because he had mentioned a reference to the respondent’s ‘Ethics Portal’ and had outlined his rights in his appeal documentation. He requested Mr Tucker conduct a review. Although it was not stated what policy or procedure the claimant was raising his concerns under, it appeared that he was effectively raising a grievance regarding the way in which the meeting on 30 July 2024 had been used to cancel his appeal and dismiss him.[35]On 2 August 2024, Mrs Clement sent a letter to the claimant in response reminding him that his permanent contract was terminated on 27 June and on 30 July 2024, the temporary position was terminated because he would not accept the original decision. Termination was confirmed as being with immediate effect with four weeks’ pay in lieu of notice and accrued but untaken holiday pay being paid through the next payroll, (p155).[36]The claimant confirmed in evidence following a lengthy series of questions from Mr Flood that he asserted the following statutory rights: a) His email sent to Mrs Clement and Ms Dixon on 29 July 2024. In section 5, he describes a Reminder of Employee’s Rights. This includes a right to a fair and impartial appeal process under the ACAS Code of Practice, that his probationary period was conducted as outlined in his contract and redeployment was not accounted for when assessing his performance, (in relation to his probationary period). b) His email sent to Mrs Clement on 25 July 2024, included a reference in section 5 to a failure to provide fair treatment in relation to process, ‘such as probation review’ or ‘redundancy’. When further cross examined by Mr Flood, the claimant focused upon his belief that the respondent knew he was redundant when his permanent contract ended and he should have been afforded a redundancy process. Law Unfair dismissal generally
Law
[37]Unfair dismissal is dealt with in Part X of the Employment Rights Act 1996. Ordinary unfair dismissal complaints where the employee is typically dismissed for the asserted (potentially fair) reasons of conduct, capability, redundancy or some other substantial reason required a minimum length of service. This complaint is subject to a minimum period of two years continuous employment with the employer before an unfair dismissal complaint can be brought, (see section 108).[38]However, dismissals where the asserted reason or principal reason for the dismissal arises from the making of protected disclosures, asserting employment rights etc’, are not subject to this minimum service requirement, (see section 108(3) which includes complaints brought under section 104 – asserting statutory rights). Unfair dismissal – automatically unfair reasons – asserting statutory rights[39]It will be automatically unfair to dismiss an employee under section 104(1) ERA 1996 if the reason or principal reason is that they have brought proceedings against the employer to enforce, or alleged that the employer had infringed, a relevant statutory right. The statutory rights are set out in s 104(4): a) any right under the ERA 1996 where an ET claim might be brought; b) the right conferred by section 86 of the ERA 1996; c) any right conferred by sections 68, 86, 145A, 145B, 146, 168, 168A, 169 and 170 of the Trade Union & Labour Relations (Consolidation) Act 1992, i.e. deductions from pay, union activities and time off; d) rights conferred by the Working Time Regulations 1998 (and other maritime working legislation not relevant to this claim); and, e) rights conferred by the Transfer of Undertakings (Protection of Employment) Regulations 2006. It appears that those rights which might be relevant in this case are a) and b), with the other rights seemingly not applying to this claim under section 104. The claimant did not assert union related rights, working time rights and the complaint did not arise from a relevant transfer.[40]It is specifically provided in section 104(2) that if the employee's claim is made in good faith, it does not matter whether or not he had the right or it was infringed. The employee must, nonetheless, make it reasonably clear what right he claims has been infringed. In Mennell v Newell & Wright (Transport Contractors) Ltd [1997] IRLR 519, CA at [28] Mummery LJ said: a) It is sufficient if the employee has alleged that his employer has infringed his statutory right and that the making of that allegation was the reason or the principal reason for his dismissal. b) The allegation need not be specific, provided it has been made reasonably clear to the employer what right was claimed to have been infringed. c) The allegation need not be correct, either as to the entitlement to the right or as to its infringement, provided that the claim was made in good faith. d) The important point for present purposes is that the employee must have made an allegation of the kind protected by section 104; if he had not, the making of such an allegation could not have been the reason for his dismissal.[41]Because section 104(1)(b) says 'alleged that the employer had infringed a right …', the protection does not extend to an allegation that the employer threatened to infringe the right in the future. This interpretation was applied in Spaceman v ISS Mediclean Ltd UKEAT/0142.[42]Simoes v De Sede UK Ltd [2021] IRLR 974, emphasises the need to determine just what the alleged infringement of rights was under section 104. The Court of Appeal held that in this case the claimant had been instructed to work a disputed period, and she had alleged that the instruction constituted a breach of her statutory rights. It was not a case of “If you ask me to do that then it will be a breach of my rights” as the instruction had already been given. She had been asked and the instruction was repeated after her concerns had been raised. In Simoes it is the instruction which was alleged to breach the claimant's working time rights. The claimant did not have to wait until she had completed the rota that she had asserted in good faith infringed her rights.[43]The claimant referred to the following cases in his closing arguments, (which required some additional enquiry during my deliberation as copies of the authorities were not provided by him at the hearing in accordance with good practice and out of consideration for the Tribunal and other party): a) Spaceman v ISS Mediclean Ltd UKEAT/0142/18 (see above). b) Ennion v Secretary of State for Work and Pensions – no citation provided by the claimant, but in my notes Mr Flood suggested it may have [2007] IRLR 450. However, this citation referred to the case of Revenue and Customs Commissioners v Leisure Employment Services Ltd, which related to the unlawfulness of employers deducting gas and electricity charges from employees at holiday resorts which caused their hourly rate of pay to fall below statutory minimum wage. A search against the case name did not yield a positive search outcome. c) Lewis v Motorworld Garages Ltd [1986] ICR 157 – when an employee is dismissed and the objective test for repudiatory conduct, (see paragraph below). d) Ferguson v Prestwick Circuits Ltd [2019] IRLR 415. However, my enquiries yielded a citation of [1992] IRLR 266. In any event, this case involved large scale redundancy plans and consultation not being required following a previous plan where the workforce had indicated they preferred not to proceed with consultation. e) Murray v Foyle Meats [1999] ICR 827 HL. A key redundancy case regarding circumstances when a dismissal arises from a redundancy. f) Safeway Stores v Burrell [1997] ICR 523. Consideration of the test to apply when determining whether or not that there was a redundancy situation. g) Berkeley Catering Ltd v Jackson [2020] EAT 0074/20. An unreported case applying the test described in Safeway (above), relating to redundancy situations. h) Kuzel v Roche Products Ltd [2008] EWCA Civ 380. In protected disclosure cases applied in unfair dismissal law under Part X ERA 1996, it is for the employer to show the reason or principal reason for the dismissal. i) Masiak v City Restaurants (UK) Ltd [1999] IRLR 780. Considered the application of section 100(1)(e) ERA 1996 (automatic unfair dismissal in health and safety cases) and that no continuous employment was required for wrongful dismissal cases.[44]While not specifically referring me to cases in his submissions, in reply to the claimant’s submissions, Mr Flood commented upon some of the cases raised by the claimant. I agreed that some of the cases referred to by the claimant were not relevant to my consideration under section 104. For example, Lewis related to constructive unfair dismissal and Ferguson related to unfair dismissal.[45]Firstly, the claimant had worked fewer than 2 years when his employment terminated. He does not have sufficient service in which to bring a complaint of ordinary unfair dismissal in accordance with section 108 Employment Rights Act 1996 (ERA 1996).[46]The claimant can rely upon his complaint of automatic unfair dismissal contrary to section 104 ERA 1996 for the reason of asserting a statutory right with his brief period of employment. Was any right asserted that was protected by section 104?[47]The Tribunal must consider what were the asserted statutory rights, when were they made and to whom they were made and whether they satisfy the test under s104(4) ERA 1996.[48]If I conclude that one or more statutory rights were asserted that are protected by section 104(4) ERA 1996, I must then consider whether they were the reason or the principal reason for the decision to dismiss the claimant.[49]The claimant had not provided a clear list of issues including the alleged statutory rights asserted, but during cross examination by Mr Flood, he was able to confirm the following: a) He did not assert a statutory right before or during the events on 27 June 2024 when his substantive role of Site Manager at Fawley site was ended. b) He referred to email sent on 25 July 2024 to Mrs Clement and paragraphs 9, 10, 11 and 12 at the foot of the email. This referred to matters of fairness, transparency, due process, lack of consultation process, events being paused while he applied for the internal Quality Control role. c) He also referred to email sent on 29 July 2024 and paragraph 5 where he referred to employee rights in relation to procedural fairness using the ACAS Code of Practice of (presumably) disciplinary and grievance procedures and/or redeployment.[50]Section 104(4) ERA provides details of those statutory rights protected by this section. Having considered the rights asserted by the claimant to the respondent, I could only see section 104(4)(a) and (b) being potentially relevant as they focus upon ERA 1996 rights. These are (a), any right conferred by the ERA 1996 and (b), the right conferred by section 86 ERA 1996.[51]Dealing with these matters in reverse order, I noted that in respect of grounds section 104(4)(b), section 86 deals with rights of the employer and the employee to minimum notice. The claimant’s email dated 25 July 2024, sections 9, 10, 11 & 12 of this correspondence fails to address anything relating to notice periods under section 86. It certainly cannot be considered reasonably clear from its ordinary reading that this was a right being claimed by the claimant. During this hearing, the claimant did not seek to argue that this was a relevant ground.[52]The email of 29 July 2024 provided by the claimant, stated to the respondent his employee rights and referred to a failure to follow procedural fairness under the ACAS Code of Practice. He said in paragraph 5 of this email that his primary complaint is a ‘breach of contract’. This was because the probationary period was not conducted in accordance with his contract of employment and that redeployment should have counted negatively against the failure of the probation and ‘other procedural issues’, that were not specified. None of these complaints could be considered applicable to section 104(4)(b).[53]I now turn to section 104(4)(a) and the more general ground of infringements under ERA 1996 being remedied by a complaint to the Employment Tribunal. Firstly, I noted that the claimant appeared to be making allegations of breach of contract which in terms of the application of the probationary period, would not be actionable as a claim under the ERA 1996.[54]In terms of the claimant’s actions following the termination of the substantive contract of employment which gave rise to these emails, I agreed with Mr Flood that the claimant was primarily unhappy with the description used of a failure of the probation period and also his view that, he should have been treated as redundant.[55]In relation to the application of section 104(4)(a), I have been unable to identify that the claimant is identifying a complaint where remedy is provided within the ERA 1996. For example, the claimant is not identifying potential rights that can be brought under section 11 (Part I ERA), section 23 (Part II), section 48 (Part IVA), etc’. I also considered whether he is effectively seeking a right to a redundancy payment. However, he appears to be unhappy with the decision to say that the probation period was unsuccessful and was not seeking to assert that he was entitled to a statutory redundancy payment.[56]It is understandable that the claimant was unhappy with the language used in relation to probation and this was reflected in his correspondence and during the interview where his temporary contract was terminated. But in a sense, the respondent was correct in saying that the probation had been unsuccessful or had been failed. This was because the claimant had been unable to work in the substantive role of Site Manager which he was originally appointed to.[57]However, while the claimant made an arguable point to the respondent that his substantive role had been made redundant (in the sense that the need for that work had ceased or diminished), he was not asserting nor could he assert that he was denied a redundancy payment given his limited service. He did not suggest during his engagement with the respondent that his limited service (of what was a matter of months), would have entitled him to such a payment. Consequently, it was not a case where the claimant was erroneously asserting a right to which he believed could bring under the ERA 1996 and in accordance with section 104(2).[58]Nor did he attempt to argue that he had been unfairly dismissed by there not being a genuine redundancy situation, (despite having insufficient service to bring such a claim).[59]But in any event, the dismissal of the substantive role and redeployment into the temporary role did not take place after any alleged assertion of a right under section 104 had taken place. It was simply treated as a failed probation under the contract of employment and while the claimant was unhappy with the application of the provision from the contract, it was not triggered by any assertion on his part regarding statutory rights.[60]In terms of the rights being asserted by the claimant, I concluded that he was effectively complaining of a failure by the respondent to comply with the ACAS Code of Practice on disciplinary and grievance procedures and which was issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992, (‘TULRCA’). It is interesting to note that the Code does not apply to redundancy situations. More importantly though, a failure to follow the Code does not, make a person liable to proceedings. Instead, Employment Tribunals will take the Code into account when considering relevant cases as listed within Schedule A2 of TULRCA and as provided by section 207A.[61]Consequently, the claimant was not asserting a right in accordance with section 104(4)(a), or indeed any other of the subsections. As I explained above, the claimant was unable to give any indication of a right under section 104(4) which he believed that he might have, or whether the employee had breached that right. The reason for the dismissal[62]While this first ‘hurdle’ of the complaint is therefore unsuccessful and the claim must fail, I have given some consideration regarding the employer’s reason for terminating the claimant’s employment absolutely by ending the temporary role.[63]I accepted from the evidence of the respondent witnesses that there was a sense of regret that they had continued with the initial recruitment of the claimant when they were aware the Exxon situation was in difficulties. I accepted that they had hoped matters with Exxon would resolve and consequently, that the Site Manager role at Fawley would remain viable. Efforts were made to keep the claimant engaged in some sort of role in the interim (which involved the claimant working on tasks not part of his substantive role job description. Eventually though, the unhappy situation arose where all parties were reaching the conclusion that the substantive role, which was not being worked, was no longer viable.[64]In many ways it was creditable that the respondent sought to find a way of retaining the claimant when the substantive role was terminated in June 2024. They had initially promised to keep the claimant in the temporary role until November 2024 but ended it on 29 July 2024 following their concerns about the claimant’s continuing and considerable work being spent challenging to the original termination and the appeal relating to the failed probation.[65]While made with good intentions, the respondent had offered the claimant an appeal against the failed probation decision contrary to its usual procedures. I did not find that it was amounted to a genuine appeal because the respondent did not consider that the meeting would change the outcome. They were clearly happy with the decision to fail the probation and had no intention of a revoking or varying their decision. I did not hear evidence from the nominated ‘chair’ Ms Dixon but based upon what Mrs Clement said (as HR advisor), the purpose of the ‘appeal’ was to ‘verbalise his points’, because he was ‘constantly emailing’. The aim was to allow the claimant to ventilate his issues. The respondent did not explore offering a grievance process to the claimant as an alternative.[66]The decision to finally terminate the temporary role was that the claimant embraced the ‘appeal’ to a degree that far more than what was anticipated by the respondent. He approached the process as a genuine appeal against dismissal where he sought to overturn the original decision regarding the substantive role As Mrs Clement described, Ms Dixon when confronted with proposals to obtain further witnesses and documents decided the employment relationship had broken down and it was decided to terminate the temporary role before the initial period ending in November 2024 had been reached.[67]If this was an ordinary unfair dismissal complaint, the respondent may have asserted some other substantial reason as a potentially fair reasons for ending the contract with the claimant before the appeal was due to take place. But this was not a case where the claimant had sufficient service to bring such a claim, and the respondent’s managers did not approach this employment relations matter as if this was relevant. As an aside, had the claimant had sufficient service to bring an ordinary unfair dismissal, he could have challenged any potentially fair reason for the decision to dismiss and rely upon procedural failures as amounting to unfairness as well. This did not apply here of course and instead Ms Dixon (supported by Mrs Clement), attended the meeting in July 2024, gave notice of his dismissal with notice.[68]Had the claimant asserted rights which were protected by section 104 ERA 1996 (and I have concluded that he did not have this right), he would have been able to argue that the decision to dismiss in July 2024 was for the sole or principal reason was his assertion of those rights. Having considered the reasons identified from the evidence before me in this case however, I concluded that they related to the claimant seeking to rely upon the ACAS Code and believing he could rely upon these provisions. These are not rights protected by section 104 ERA 1996 and therefore the dismissal was not for reasons which infringed this section.
Conclusion
[69]Accordingly, I must conclude that: j) The claimant did not assert a statutory right that was protected by section 104 Employment Rights Act 1996; and, k) The claimant was not unfairly dismissed for the reason or principal reason that he asserted a statutory right that was protected by section 104 Employment Rights Act 1996.[70]I recognised that the claimant approached his new job with the respondent with great hopes and optimism. But in terms of timing, his recruitment took place just at the time when the need for this role was being brought into question.[71]It is easy to look at the circumstances existing at the time with the benefit of hindsight and suggest that the respondent would have been wiser to withdraw the offer or terminate the employment relationship once and for all at a much earlier stage than they did. But I accepted that the respondent was aware and worried that the claimant had resigned from his old position and hoped that the problems with Exxon would resolve. Especially, as I understand was the case, its origins related to disputes in the USA rather than the UK. It is unfortunate that things did not improve in the way that had been hoped.[72]Nonetheless, while it could be argued that the claimant’s role had become redundant, the decision that the probation failed while sounding unattractive to the claimant, was not incorrect. The problem was that the respondent then offered an appeal which did not form part of the probation process and which did not assume the genuine function of an appeal.