[1]The Tribunal has jurisdiction to consider the claimant’s complaints automatically unfair dismissal, under section 100(1)(a) and/or section 103A ERA.[2]The Tribunal does not have jurisdiction to consider the claimant’s complaints of detriment as a result of making protected disclosures, under section 47B ERA.[3]The claimant’s application to amend his claim, to include complaints of failure to make reasonable adjustments is refused.
REASONS
[4]The claimant presented his claim to the Tribunal on 30 June 2024. A case management preliminary hearing took place in relation to the claim, on 5 November 2024 (the First Preliminary Hearing).[5]At the First Preliminary Hearing, it was noted that the claimant brings complaints of:a. Detriment as a result of making protected disclosures; andb. Automatically unfair dismissal, under section 100(1)(a) and/or section 103A ERA.[6]On 16 October 2024, the claimant sought to amend his claim, to include a complaint of failure to make reasonable adjustments. The respondent objected to him doing so.[7]At the Frist Preliminary Hearing, the claim was listed for an open preliminary hearing to determine the following issues:a. Were the claimant’s complaints lodged within requisite time limits set out in sections 48(3)(a) and 111(2)(a) ERA?b. If not, and the Tribunal is satisfied that it was not reasonably practicable for the claimant to do so, were they lodged within such further period as the Tribunal considers reasonable?c. Should the claimant’s application to amend his claim be granted?[8]The case called, on 12 February 2025, for an open preliminary hearing to determine these issues.[9]Parties had prepared a bundle of documents for use at the preliminary hearing, extending to 553 pages. Whilst some concerns/issues were raised by the claimant regarding the bundle to be used at the hearing, the claimant indicated, at the commencement of the preliminary hearing, that he was content to proceed.[10]The Tribunal heard evidence from:a. Louise Mair (LM), formerly Senior HR Business Partner for the respondent; andb. the claimant.[11]As there was insufficient time to hear oral submissions, once the evidence had been heard, it was agreed that parties would lodge written submissions on 17 February 2025, with each having a right of reply by 20 February 2025. The parties’ submissions were then considered, in chambers, on 28 February 2025. Findings in Fact[12]This Judgment does not seek to address every point about which the parties have led evidence or made submissions on. It only deals with the points which are relevant to the issues which the Tribunal must consider in order to determine the issues which required to be addressed at this hearing. If a particular point is not mentioned, it does not mean that it has been overlooked, it simply means that it is not relevant to the issues to be determined. The relevant facts, which the Tribunal found to be admitted or proven, are set out below.[13]On 27 July 2023, prior to commencing employment with the respondent, the claimant signed a contract of employment provided to him by the respondent. That stated that the first 6 months of his employment would be treated as a probationary period. It confirmed that during the probationary period employment could be terminated by either party giving 4 weeks’ notice and that ‘all notices of termination must be given in writing’. The Contract of Employment also contained a clause headed ‘Pay in Lieu of Notice’ which confirmed that ‘the Company reserves the right to make a payment in lieu of any notice you are not required to work by the Company, whether notice to terminate your employment is given by you or the Company.’[14]The claimant then commenced employment with the respondent, as Technical Services Director, on 4 September 2023. His salary was £80,000. He could also earn a discretionary bonus of up to 25% of his salary.[15]On Tuesday 6 February 2024, during the course of his working day, the claimant attended a meeting with his line manager, Anne Ledgerwood (AL) and LM. The meeting invite stated that it was ‘SJQ Tech – Follow up Meeting’ and the claimant anticipated a work-related discussion. AL opened the meeting by informing the claimant that ‘it was best for everyone to bring [his] probation to an end’. She then asked LM to take over the meeting. This was not what the claimant was expecting, and he was shocked and upset at this turn of events. LM stated that the claimant was, as per his contract, entitled to 4 weeks’ notice period. Return of equipment was then discussed. LM indicated that the respondent did not expect him to return his equipment that day – that could be done on Thursday, either in the office or off site, depending on the claimant’s preference. The claimant expressed that he felt he was being treated unfairly and there was a discussion regarding that. He indicated that he had taken some legal advice (he had done so informally, rather than engaging an employment lawyer). As the meeting was concluding, the claimant asked if he would be put on garden leave. In response, there was an indication that he would not require to attend the office or conduct work during his notice period. The meeting was then brought to an end.[16]The meeting lasted 4 minutes in total. LM was surprised at the brevity of it. The claimant understood, following the meeting, that his employment would be terminated. He knew he was entitled to 4 weeks’ notice of the termination of employment, as this has been expressly mentioned at the meeting. Whilst he understood that he would not be required to work during his notice period, the claimant was not clear whether the notice period had started or not (on reflection, he concluded it had not, as he had not been told it had and his contract stated notice required to be given in writing – which he had not received), or whether he would remain employed during that period or not.[17]After the meeting, the claimant gathered some of his belongings and left. He did not carry out any further work for the respondent.[18]On 12 February 2024, during a meeting with the respondent, the claimant was handed a letter by LM in relation to the termination of his employment. This stated that the claimant’s employment had terminated on 6 February 2024. It stated that he would be paid from 1-6 February 2024, and also receive a payment in lieu of his 4 week notice entitlement, on 23 February 2024.[19]On 28 February 2024, the claimant sent an email to LM requesting the staff handbook and 7 policies, stating ‘I need these for my ACAS/legal discussions.’ He sent a further email to LM on 1 March 2024, raising a number of concerns regarding his employment and its termination.[20]The claimant commenced alternative employment, working 3 days per week, in early May 2024. He increased to full time at the end of summer 2024.[21]The claimant commenced early conciliation on 10 May 2024. In discussions with Acas, they indicated to the claimant that PILON could bring the EDT forward, but could not say definitively whether the claimant’s EDT was 6 or 12 February 2024. He conducted research and concluded that the EDT was 12 February 2024, as that was the date he was given written notice, as required by his Contact of Employment.[22]Early conciliation took place from 10 May to 6 June 2024 and the claim form was presented on 30 June 2024.[23]On 31 July 2024, the claimant was diagnosed as having ‘ADHD F90.0 Inattentive Type’. This manifests as difficulties with sustained attention, focus and executive function. He commenced a treatment plan at that time, which included titration of mediation. By 6 September 2024 he had found the right medication level, which he remains on now.[24]On 16 October 2024, the claimant applied to amend his claim to include a complaint of failure to make reasonable adjustments. Claimant’s Submissions[25]The claimant lodged a written submission extending to 25 typed pages, and a response to the respondent’s submission extending to a further 15 typed pages.[26]In relation to the effective date of termination (EDT), in summary, he submitted that:a. The earliest possible date of his EDT was 12 February 2024. His claim was therefore presented in time.b. It was not clear to him, from the discussion on 6 February 2024, whether he would remain employed during his notice period or not. The respondent’s statements were ambiguous. The Tribunal require to consider what a reasonable employee, in the claimant’s position, would have understood from the words used and the surrounding circumstances.c. He was not given anything in writing in relation to the termination of his employment until 12 February 2024.d. The EDT in this case could not be 6 February 2024, since the respondent never lawfully or unambiguously terminated the claimant’s employment that day either in the statutory sense, or the contractual. The automatic termination principle – outlined in authorities including Robert Cort & Son Ltd v Charman [1981] IRLR 437 and British Building and Engineering Appliances Ltd v Dedman [1973] ICR 82 - which fixes the EDT on the date the employer actually dismisses the employee, only applies where the employer has taken a clear, decisive act of dismissal. The case of Geys v Societe Generale [2012] UKSC 63 states that where an employer purports to exercise a PILON clause, it must clearly and unambiguously communicate that decision. The respondent did not so on 6 February 2024: no written notice was issued; no explicit invocation of PILON was made; and the respondent’s own conduct, in arranging a further meeting for 12 February 2024, suggested that the claimant remained employed.e. British Building and Engineering Appliances Ltd v Dedman and Robert Cort & Son Ltd v Charman are distinguishable from the circumstances of this case. They demonstrate that when an employer genuinely intends an instant dismissal, it must be communicated plainly and unambiguously. In both cases the employer did so in writing. The respondent here did not provide anything in writing to the claimant on 6 February 2024, and their position, stated orally, was ambiguous and did not affect a genuine summary dismissal.f. The Supreme Court in Gisda Cyf v Barratt [2010] ICR 1475 is authority for the assertion that the timing of a dismissal is contingent upon effective communication to the employee. While the letter of 12 February 2024 stated that the claimant’s employment had terminated on 6 February 2024, this could only fix an EDT on the 12 February 2024, that being the date where the respondent attempted to record in writing an event that had in fact never occurred.[27]In relation to time limits, he submitted, in summary, that:a. If the EDT was 6 February 2024, it was not reasonably practicable or him to have presented his claim by 5 May 2024 as he did not believe that 6 February 2024 was the EDT. While the letter of 12 February 2024 stated that his employment terminated on 6 February 2024, it also indicated that the claimant would receive “four weeks’ pay in lieu of notice.” For a layperson—particularly one who had been told on 6 February that he had a four-week notice entitlement, had never received a written termination letter on that day, and was expressly asked to attend work again on 12 February—this wording did not unambiguously communicate that the claimant’s employment had instantaneously terminated the previous week. The claimant reasonably believed he remained employed during his four-week notice.b. The claimant’s inattentive ADHD, while formally diagnosed a few months later, was clearly influencing his capacity to interpret inconsistent signals at the time of these events. It is widely recognised that individuals with inattentive ADHD experience pronounced difficulties in organising information, focusing on key details, and reconciling contradictory instructions. These challenges become especially acute when the individual is under significant stress or in crisis, as the claimant was following the respondent’s decision to bring his employment to an end.c. In line with the authorities in Palmer v Southend-on-Sea Borough Council [1984] IRLR 119, Marks & Spencer plc v Williams-Ryan [2005] EWCA Civ 470, and similar cases, the tribunal is invited to conclude that the delay stemmed from a genuine and reasonable misunderstanding rather than any negligence on the claimant’s part. The Employment Appeal Tribunal has expressly recognised in cases such as J v K [2019] ICR 815 and MTN-1 Ltd v O’Daly [2022] EAT 130 that neurodivergent conditions like ADHD can be a materially relevant factor when assessing whether a claimant has missed a procedural deadline for reasons beyond their control or comprehension.[28]In relation to the application to amend, he submitted, in summary, that:a. Although this amendment adds a distinct legal ground (disability discrimination), it arises from the same factual matrix already before the Tribunal and does not fundamentally alter the nature of the dispute.b. His diagnosis of ADHD only came to light after his claim was presented. The application to amend was made as soon as he fully understood the significance of that.c. Allowing the amendment would be just, proportionate and in accordance with the overriding objective. The claimant would be disadvantaged if it were not allowed, but there is no unfair prejudice to the respondent. Respondent’s Submissions[29]The respondent lodged a written submission extending to 15 typed pages, and a response to the claimant’s submission extending to 2 further pages.[30]In relation to the EDT, the respondent submitted, in summary, that:a. The EDT for statutory purposes is the date on which the termination takes effect, meaning the date on which the employee is actually dismissed (Robert Cort & Son Ltd v Charman [1981] IRLR 437).b. Whilst it may impact the position at common law, for statutory purposes, the EDT is not delayed by the fact that the contract states that notice must be given in writing.c. The respondent confirmed, on 6 February 2024, that the claimant was being dismissed and would be paid in lieu of his notice. That is, therefore, the applicable EDT.d. The respondent’s position, that the claimant’s employment was being summarily terminated, was clearly and unambiguously conveyed to the claimant at the meeting. The clarity in this communication is supported by the fact that, after the meeting, the claimant returned his keys and packed up some of his belongings before leaving the respondent’s premises. The claimant also confirmed in evidence that his access to company emails was shut off following this meeting. He could not continue to work for the respondent and ceased to attend his place of employment after that date.[31]In relation to time limits, the respondent submitted, in summary, that:a. The time limit for the claimant’s detriment complaints expired on 18 April 2024 (there being no extension for early conciliation, as it was not commenced prior to that date).b. As the EDT was 6 February 2024, the unfair dismissal complaint was not presented within the time limits. The time limit for the claimant’s unfair dismissal complaint expired on 5 May 2024 (there being no extension for early conciliation, as it was not commenced prior to that date).c. The claimant’s assertions, that it was not reasonably practicable for him to present his complaints on time, should not be accepted.d. It was unreasonable for the claimant to hold any belief that his employment terminated on 12 February 2024, given the communication to him on 6 February 2024, his actions following that meeting, the unambiguous terms of the letter dated 12 February 2024, and the fact the claimant did not challenge the termination date asserted in that letter in ongoing communication with the respondent. He is a highly educated individual, employed in a senior position at Director level – he ought to have conducted research or made enquiries, and was under an obligation to do so (Trevelyans (Birmingham) Ltd v Norton 1991 ICR 488, EAT and Koudriachova v University College London EAT 0132/14). It is clear that he had litigation in mind from as early as 6 February 2024.e. In relation to the claimant’s assertion that it was not reasonably practicable for him to present his complaints in time due to a severe mental health deterioration, he states that this crisis clouded his understanding of the EDT and hindered his ability to navigate the process of filing his claim. Whilst the claimant has presented evidence regarding his ADHD, which was diagnosed after he presented his claim, he has not put before the Tribunal any evidence to support his assertion that he was experiencing a mental health crisis, nor to demonstrate the effect this had on factors like his comprehension of dates, or that it lasted for an extended period of time that prevented him from being able to function or comply with the strict deadline set out in law.f. If it was not reasonably practicable for the claimant to have presented his complaints in time, they were not presented in such further period as was reasonable. He received his early conciliation certificate on 6 June 2024, but did not present his claim until 30 June 2024. He accepts that Acas informed him, during early conciliation, that the EDT may be 6 February 2024.[32]In relation to the amendment application, the respondent, in summary, submitted that:a. The application should not be allowed, taking into account the tests set out in Selkent Bus Co Ltd v Moore 1996 ICR 836, EAT and Vaughan v Modality Partnership 2021 ICR 535, EAT.b. The proposed amendment involves a new set of facts with significantly different, and arguably more complex, legal tests in play. The new complaint is brought out of time – the final act asserted in the amendment application is 30 January 2024. Whilst the claimant alludes to a mental health crisis, no evidence has been led in relation to this and it is clear that he was able to prepare a cogent ET1.c. In relation to his assertion that he was not aware of his diagnosis of ADHD until July 2024 and, as such, could not submit a disability discrimination claim until late-August, this is self-defeating in two respects. Firstly, he seeks to impose a burden upon the respondent that he does not do so upon himself. In essence, that he could not have included a claim for disability discrimination in time, as he could not reasonably have known that he had that condition. On the other hand however, he maintains that even though he and the respondent did not know of his ADHD, the respondent ought to have made reasonable adjustments in respect of this condition during his employment. Secondly, the claimant has not explained the delay from late August to 16 October 2024, when he applied to amend his claim.d. The respondent’s principal submission however relates to their view that the discrimination complaint lacks merit. They submitted that, putting it bluntly, the claim cannot, even if taken at its highest, succeed. It is not in dispute that the respondent was not aware of the claimant having ADHD at the relevant time. It is not something the claimant knew, it is not something the claimant ever suggested, and it is not something that the respondent ought reasonably to have known. The claimant states in his amendment application ‘I am not suggesting that the Respondent should have been capable of identifying and diagnosing ADHD, but they should have recognised I was struggling and in need of support.’ The claimant also states ‘My difficulties during this period were not a result of ADHD. Rather they were the direct consequence of the Respondent’s failure to provide adequate support compounded by the hostile work culture.’ These comments both undermine the prospects of the complaint under EqA.e. The respondent will be disadvantaged: they will require to respond to a very weak complaint in pleadings and reinterview witnesses, incurring further time and cost. Cogency of evidence will be impacted and one of the individuals has now left the respondent’s employment. The proceedings will be delayed and the length of the final hearing extended. It is not in accordance with the overriding objective to allow the amendment. This outweighs any prejudice to the claimant. Jurisdiction – Detriment & Unfair Dismissal Complaints
Relevant Law
[33]The relevant time limits in relation to the detriment and unfair dismissal complaints are set out in sections 48(3)(a) and 111(2)(a) ERA respectively.[34]These provisions state that a Tribunal shall not consider the respective complaints unless they are presented to the Tribunal before the end of three months beginning with:a. In relation to the detriment complaint, the date of the act or failure to act, or the last of them if the act or failure is part of a series of similar acts or failures (section 48(3)(a) ERA); orb. The effective date of termination, in relation to a complaint regarding dismissal (section 111(2)(a) ERA) or 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.[35]Section 207B ERA provides for the extension of the three-month time limit, in specified circumstances, to enable parties to participate in early conciliation, prior to raising proceedings.[36]In considering whether there is jurisdiction to hear such complaints, Tribunals accordingly required to consider the following questions:a. Were the complaints presented within the primary three-month time limit?b. If not, was it reasonably practicable for the complaints to be presented within that period?c. If not, were they presented within such further period as the Tribunal considers reasonable?[37]The question of a what is reasonably practical is a question of fact for the Tribunal. Whether it is reasonably practicable to submit a claim in time does not mean whether it was reasonable or physically possible to do so. Rather, it is essentially a question of whether it was ‘reasonably feasible’ to do so (Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119). Where a claimant asserts that it was not reasonably practicable for them to lodge a complaint in time, the burden of proof is on them to demonstrate this.[38]Whether the claim was presented within a further reasonable period requires an assessment of the factual circumstances by the Tribunal, to determine whether the claim was submitted within a reasonable time after the original time limit expired (University Hospitals Bristol NHS Foundation Trust v Williams UKEAT/0291/12).[39]Section 97(1) ERA is entitled ‘Effective date of termination’. It states: ‘Subject to the following provisions of this section, in this Part ‘the effective date of termination’ –(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect...’[40]The leading case in relation to section 97(1)(b) is Robert Cort & Son Ltd v Charman [1981] I.R.L.R. 437. The EAT and Court of Appeal have, on numerous occasions since, confirmed that this case remains good authority on the interpretation of section 97, which is not affected by the approval by the Supreme Court in Geys of the “acceptance theory” of termination. Kirklees Metropolitan Council v Radecki 2009 ICR 1244, CA was one of those cases. In that, Lord Justice Rix confirmed that ‘the effective date of termination will be the date of summary dismissal, as long as that is known to the employee.’[41]In Feltham Management Ltd v Feltham UKEAT/0201/16 HHJ Richardson conducted a review the law in this area and stated, at paragraph 39: ‘given its statutory setting and importance, section 97(1)(b) in my judgment requires words or conduct which in their context amount to a plain and unambiguous termination by an employer. The termination may be by words or conduct or a mixture of the two; but it must unequivocally convey to the employee on an objective reading or understanding that the employer is terminating the contract. Words or conduct which reasonably leave the employee in doubt as to whether the employer has terminated the contract will not trigger the effective date of termination.’ Discussion & Decision – Unfair Dismissal Complaint[42]The Tribunal considered when the effective date of termination (EDT) was. The Tribunal noted that Section 97(1)(b) ERA requires there to be words or conduct which amount to a plain and unambiguous summary termination by an employer. Words or conduct which reasonably leave the employee in doubt will not trigger the EDT.[43]Informing the claimant that ‘it was best for everyone to bring [his] probation to an end’ did not convey that the respondent was summarily terminating the contract that day, particularly when, immediately after that statement, the claimant was then told that, in accordance with his contract, he was entitled to a 4 week notice period. The latter statement suggested that the respondent was aware of the claimant’s contractual entitlement and would honour this. The reference to the claimant’s contractual notice period was not accompanied with a clear and unambiguous statement that the claimant’s employment had been terminated with immediate effect, and he would receive a payment in lieu of his contractual notice entitlement. Neither party suggested that it was. Rather, the claimant was informed that under his contract he was entitled to 4 weeks’ notice and the discussion moved on to arrangements for return of company equipment. Both parties accepted however that, by the end of the discussion, the claimant remained unclear of the position and sought clarity, by asking if he would be placed on garden leave. There was a dispute between the parties as to what he was told in response – the respondent’s evidence was that they stated to the claimant that he would be ‘paid in lieu of notice, effective from today’, thus conveying to the claimant, for the first time in the meeting, that his employment had been terminated, with immediate effect, that day. The claimant’s evidence was that this was not said, there was simply a discussion that he would not require to attend the office or conduct work. The Tribunal, on balance, preferred the claimant’s evidence. Had the respondent stated this, it would have been said at the point in the meeting when they discussed the claimant’s notice entitlement, not as the very last statement and only in response to a question posed by the claimant. The Tribunal also took into account, in reaching this conclusion, that LM herself expressed surprise at the brevity of the meeting and the fact that AL had indicated, at the very start of the meeting and without prior discussion, that the claimant’s probation would be terminated. The Tribunal concluded that this (LM being surprised at being asked to take over the meeting so quickly - to explain termination arrangements) provided an explanation for why the respondent did not convey their position in clear and unambiguous terms during the meeting.[44]As things stood, following the meeting, the claimant’s position was as set out in paragraph 16 above. At that time, the claimant had doubt, reasonably, as to what the position was regarding the termination of his employment. In particular, it was not clear to the claimant whether he would remain employed during his notice period or not. Whilst the respondent has relied upon the claimant’s conduct following the meeting on 6 February 2024, to support their position that it had been made clear to the claimant in the meeting that his employment had been summarily terminated, the Tribunal did not accept this was the case. The claimant would have taken the same actions had he believed that he would imminently be receiving formal notice of the termination of his employment, or that his employment would terminate at the end of a his 4 week notice period, but he did not require to work during that period.[45]The first occasion on which the position was made unambiguously clear to the claimant was when he received the letter dated 12 February 2024. That letter expressly stated that the respondent intended to terminate the contract with immediate effect and make a payment in lieu of notice. The Tribunal accordingly concluded that the EDT was 12 February 2024, when the claimant was unambiguously informed of this, not 6 February 2024.[46]The claimant engaged in early conciliation took place from 10 May to 6 June 2024 and the claim form was presented on 30 June 2024. His complaint in respect of unfair dismissal was accordingly submitted within the time limit set out in 111(2)(a) ERA, as extended to allow for early conciliation. The Tribunal therefore have jurisdiction to consider that complaint. Discussion & Decision – Detriment Complaints[47]The Tribunal then considered whether the complaints of detriment were presented within the primary three-month time limit. The claimant asserted two detriments: the retrospective changing of month one feedback and probation objectives, which he asserted occurred in December 2023, and AL’s conduct at a meeting on 19 January 2024. Accordingly, even if these were found to be a part of a series of similar acts, for the purposes of s48(3)(a), the relevant time limit, for the detriment complaints would have expired on 18 April 2024.[48]Whilst the claimant engaged in early conciliation from 10 May to 6 June 2024, as this was done after the expiry of the primary time limit, it did not result in the extension of the primary time limit in respect of any of his detriment complaints. The complaints were accordingly not presented in the primary three-month time limit. They were presented on 30 June 2024, over 2 months after the expiry of the time limit.[49]The Tribunal then considered whether it was reasonably practicable for the detriment complaints against the respondent to be presented within the initial three-month period.[50]The claimant’s submission focused on time starting to run from the EDT, whenever that was determined to be. He did not address time in relation to the detriment complaints separately, even after receipt of the respondent’s submission. The claimant simply asserted that it was not reasonably practicable for him to lodge his complaints in time because he believed that the EDT was 12 February 2024, and time started to run from then. If the EDT was 6 February, his ADHD undermined his ability to recognise that. Whether the EDT was 6 or 12 February 2024 did not however impact the time limit for the detriment complaints. There was no doubt as to when they occurred.[51]The Tribunal noted that the question of what was reasonably practicable will often depend on a claimant’s state of mind, viewed objectively. In Wall’s Meat Co Ltd v Khan [1979] ICR 52, 60–61, by Brandon LJ stated as follows: “The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical … or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.”[52]The claimant did not assert that he had a mistaken belief that the whistleblowing complaints were all linked, so time ran from the last of them, namely the dismissal, and that was the impediment to him presenting detriment complaints in time. Even if he had done so however, the Tribunal would have concluded that any such belief was not reasonable. The time limits are clear and there was no doubt as to when the detriments relied upon occurred. The claimant was taking advice, albeit informally, from 6 February 2024. He ought to have been able to ascertain relevant time limits in respect of his detriment complaints, either through that advice or though his own research.[53]The claimant asserted that, after his dismissal, his ability to manage the necessary steps for filing a claim were significantly impaired by a combination of factors, primarily stemming from undiagnosed ADHD and severe mental health deterioration resulting from his work environment. The Tribunal accepted that this may very well have been the case. It is clear however, that by early May 2024, he was well enough to commence alternative employment, working 3 days per week. He was able to engage in early conciliation with Acas from 10 May to 6 June 2024. The Tribunal concluded from these points, that the claimant’s health was not preventing him lodging his detriment complaint from early May onwards. The complaint was not however lodged until 30 June 2024. That delay has not been explained. For that reason, the Tribunal concluded that the detriment complaints were not lodged within such further period as was reasonable.[54]The Tribunal does not therefore have jurisdiction to consider claimant’s detriment complaints. Those complaints are accordingly dismissed on the basis that they were not presented within the time limit stated in section 48(3)(a). Amendment Application
Relevant law
[55]Employment Tribunals have a broad discretion to allow amendments at any stage of proceedings, either on the Tribunal’s own initiative or on the application by a party. Such a discretion must be exercised in accordance with the overriding objective (which is set out in the Employment Tribunal Procedure Rules) of dealing with cases fairly and justly.[56]Where a Tribunal requires to determine an application to amend, the key test is to balance the injustice and/or hardship of allowing or refusing the amendment: Cocking v Sandhurst (Stationers) Limited and another 1974 ICR 650 at 657B-C and Selkent Bus Company Limited v Moore 1996 ICR 836 at 843D. Accordingly, when determining whether to grant an application to amend Tribunals should carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the levels of hardship that would be caused to the parties by granting or refusing the amendment.[57]In Selkent, Mummery J stated that it is impossible and undesirable to attempt to list all of the relevant factors to be considered exhaustively, but noted a number of factors that will generally be relevant to the assessment, namely:a. Nature of the amendment - i.e. is the amendment, for example, one involving the correction of clerical or typographical errors, the addition of factual details to existing allegations and or the addition or substitution of other labels for facts already pled? Alternatively, is the amendment one which involves the making of entirely new factual allegations that change the basis of the existing claim? In other words, whether the amendment sought is a minor matter, or a substantial alteration pleading a new cause of action.b. Applicability of time limits – if a new claim or cause of action is proposed to be added by way of amendment, the Tribunal should consider whether that claim/cause of action is out of time and, if so, whether the time limit should be extended.c. Timing and manner of the application – an application should not be refused simply because there has been delay in making it, as amendments may be made at any stage of the proceedings. Delay in making the application is however a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the identification of new facts or new information from documents disclosed on discovery.[58]The above is not an exhaustive list. There may be additional factors to consider in any particular case.[59]The Court of Appeal in Abercrombie & Others v Aga Rangemaster Ltd [2013] IRLR 953 stated: “the approach of both the EAT and this Court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted”[60]The hardship and injustice test is a balancing exercise. As noted by Lady Smith in Trimble and another v North Lanarkshire Council and another EATS0048/12 it is inevitable that each party will point to there being a downside for them if the proposed amendment is allowed or not allowed. It will therefore rarely be enough to look at the downsides or ‘prejudices’ themselves. These need to be put in context, and that is why it is important to look at all the surrounding circumstances. Discussion & Decision Nature of the amendment[61]Broadly, the claimant seeks to add a new complaint of failure to make reasonable adjustments. The claimant asserts that he was a disabled person at the relevant times as a result of ADHD, anxiety and/or panic attacks, that the respondent had PCPs of requiring him to undertake increasing and unmanageable workloads and subjecting him to hostile meetings and a hostile work environment, which placed him at a substantial disadvantage.[62]As outlined above, the complaint before the Tribunal is whether the claimant was automatically unfairly dismissed, with reference to section 100(1)(a) and/or section 103A ERA. The claimant’s proposed amendment seeks to introduce an entirely new cause of action, which is unrelated to the existing factual matrix, namely that of failure to make reasonable adjustments during the course of his employment. This gives rise to new areas of enquiry, including whether the claimant was in fact a disabled person with reference to each of the three asserted impairments, which may require separate preliminary hearings and/or expert evidence to determine.[63]The respondent submitted that the Tribunal should take into account that complaint of failure to make reasonable adjustments has no merit and cannot, even if taken at its highest, succeed. The respondent base that submission the fact that the claimant did not receive his diagnosis in relation to ADHD until after his employment terminated. They accordingly did not know, and could not reasonably have known, that the claimant was a disabled person by reason of ADHD. The claimant does not appear to dispute this, stating ‘I am not suggesting that the Respondent should have been capable of identifying and diagnosing ADHD…’ It accordingly appears that, insofar as the complaint of failure to make reasonable adjustments relies upon that impairment, it would not have prospects of success. The Tribunal noted however that the claimant relies upon three separate impairments as constituting disabilities – ADHD, anxiety and panic attacks. Lack of knowledge of ADHD does not therefore, necessarily, mean that this complaint has limited prospects insofar as it relates to the other impairments relied upon. Applicability of time limits[64]The claimant first intimated that he wished to pursue these complaints on 16 October 2024.[65]Complaints of discrimination should be brought within 3 months of the date of the act to which the complaint relates, or such other period as the Tribunal considers just and equitable.[66]As set out above, the claimant’s employment with the respondent terminated on 12 February 2024. It appears that the last date on which he asserts discrimination occurred was 30 January 2024. His complaints would accordingly have been out of time at the date of the application to amend. Timing and manner of the application[67]The Tribunal considered why the application was being made at the stage it was. The claimant’s position was diagnosed as having ADHD on 31 July 2024, and commenced a treatment plan at that point. By 6 September 2024 he had found the appropriate level of medication. He states that it was around that time that that he realised he ought to amend his claim to include a complaint of failure to made reasonable adjustments. His amendment application was submitted on 16 October 2024.[68]The Tribunal noted however that the claimant commenced alternative employment from the start of May 2024 and was able to complete a very detailed claim form and lodge this with the Tribunal on 30 June 2024. He continued to work in the period from 31 July to 6 September 2024, following his diagnosis, increasing to doing so on a full-time basis. He was able to focus sufficiently to do so. He has not explained why he was able to undertake work, but not apply to amend his claim. He did not assert that his condition had deteriorated from 30 June 2024, when he was able to lodge his claim, such that he would have been unable to complete an application to amend his claim when he received his diagnosis. It is also notable that the claimant relies on 3 separate impairments, namely anxiety, panic attacks and ADHD. He produced no explanation for why he did not include a complaint of failure to make reasonable adjustments in respect of the asserted impairments of anxiety and panic attacks in his originating complaint. There was no suggestion that the impairments of anxiety and panic attacks were recently diagnosed.
Conclusions
[69]Both parties can point to injustice/hardship if the application is allowed/refused. While the Tribunal recognises that refusing the amendment application will prejudice the claimant, as he will not be able to pursue that complaint, it appears to the Tribunal that he could have included this complaint, insofar as it relates to anxiety and panic attacks, in his originating complaint. It is not clear why he did not do so, or why he did not seek to amend his claim at an earlier stage. The respondent will be prejudiced if the application to amend is permitted: the proposed amendment seeks to introduce an entirely new complaint, which would involve substantially different areas of enquiry; the proposed complaint relates to events prior to the termination of the claimant’s employment – cogency of evidence will be impacted and one of the individuals involved has now left the respondent’s employment. It appears that the complaint, insofar as it relies upon the impairment of ADHD, has poor prospects of success, given that the claimant had not been diagnosed with ADHD at the time. Taking all of above points into account, the Tribunal concluded that the balance of hardship and injustice weighs in the respondent’s favour.[70]For these reasons, the Tribunal concluded that the application to amend the claim should be refused.
Introduction
[1]This was a final hearing to consider the claimant’s complaints of automatically unfair dismissal, contrary to section 100(1)(a) and/or section 103A of the Employment Rights Act 1996 (ERA).[2]The respondent does not accept that the claimant made protected disclosures. They admit the claimant was dismissed, but stated that the reason for dismissal was poor performance in his probationary period.[3]The claimant gave evidence on his own behalf and called the following individuals (the first two by way of witness order): 3.1. Mark Bentley (MB), Retail & Commercial Director, employed by the respondent; 3.2. Julian Woods (JW), Compliance Manager employed by the respondent; and 3.3. Angela Buchanan (AB), Technical Administrator previously employed by ABM, a contractor of the respondent.[4]The respondent led evidence from Anne Ledgerwood (AL), Centre Director.[5]Other individuals referenced in this judgment are: 5.1. Laura Jane Heron (LJH), Property Management Supervisor for the respondent, and AL’s line manager; and 5.2. Louise Mair (LM), Senior HR Business Partner for the respondent.[6]Productions, extending to 2,716 pages, were lodged by the parties in advance of the commencement of the hearing. A further 7 pages were added, with consent, during the course of the hearing.[7]In correspondence prior to the commencement of the hearing, the claimant raised concerns about when the bundle was provided to him. In discussion at the commencement of the hearing, he indicated that he would be content to proceed, if some additional time could be afforded to him to complete his preparations. It was accordingly agreed that proceedings that day would be restricted to discussions regarding preliminary issues only. The hearing would then be adjourned to the following day. The claimant accordingly commenced his evidence in chief on 22 July 2025, indicating that he was in a position to proceed at that time, and that he wished to do so. Issues to be determined[8]The issues to be determined was one of the preliminary issues discussed at on the first day of the hearing. The claimant indicated that, for the purposes of his complaint under section 103A ERA, he only wished to rely on paragraphs 3.5.1, 3.6 and 3.7.1 of the attachment to his ET1 form. Paragraphs 3.5.1 to 3.6.4 were however relied upon in relation to his complaint under section 100(1)(a).[9]It was accordingly agreed that the issues to be determined were as set out below. Qualifying Disclosure – s43B ERA[10]Did the claimant make one or more qualifying disclosures, as defined in section 43B ERA? The claimant relies on the following: 10.1. An email sent from the claimant, in late January/early February 2024, locally and to the client, regarding high voltage system safety concerns, highlighting urgent safety issues and the potential for severe damage and loss of electrical supply (paragraph 3.5.1 ET1); 10.2. An email sent to AL on 29 January 2024, in which the claimant raised concerns that SJQ had no procedures in place to ensure the safe operation and maintenance of the high voltage network (paragraph 3.5.1 ET1); 10.3. Concerns raised by the claimant, in January 2024, in relation to fire alarm defects, identified after a planned evacuation exercise (paragraph 3.6 ET1); and 10.4. Concerns raised by the claimant, in January 2024, regarding the lack of accurate data regarding gas, electricity and water supply (paragraph 3.7.1 ET1).[11]In relation to each asserted disclosure, the Tribunal will decide: 11.1. Did the claimant disclose information? 11.2. Did the claimant believe the disclosure of information was made in the public interest? 11.3. Was that belief reasonable? 11.4. Did the claimant believe it tended to show that the health or safety of any individual had been, was being or was likely to be endangered? 11.5. Was that belief reasonable?[12]If the claimant made a qualifying disclosure, was it also a protected disclosure (s43C ERA)? Unfair Dismissal – s103A ERA[13]Was the sole or principal reason for the claimant’s dismissal the fact the claimant made a protected disclosure(s)? Unfair Dismissal – s100(1)(a) ERA[14]Was the claimant designated by the respondent to carry out activities in connection with preventing or reducing risks to health and safety at work and did the claimant carry out (or did he propose to carry out) any such activities? Namely as set out in paragraphs 10.1 to 10.4 above, as well as the following 14.1. Concerns raised with the Senior Leadership Team, and in an email to the respondent’s client, in September 2023 regarding scaffolding collapsing, and this being reportable under RIDDOR (para 3.6.3 ET1); 14.2. A report submitted to AL and LJH on 6 November 2023, in which the claimant highlighted serious safety compromises/failures within the eyebolt system, rendering it unfit for use (para 3.6.2 ET1); 14.3. Concerns raised by the claimant, with the SLT, in the period from September to December 2023, regarding the health of the outgoing Technical Services Director (para 3.6.4 ET1); 14.4. A communication to AL in December 2023, and a subsequent meeting with LJH, in which the claimant raised concerns in relation to fire safety issue in relation to the Roomzzz Apart Hotel (para 3.6.1 ET1); and 14.5. An email from the claimant to AL, sent in January 2024, in which he documented his concerns in relation to health and safety management system deficiencies (para 3.5.2 ET1).[15]If so, was the sole or principal reason for the claimant’s dismissal the fact the claimant did so?
Remedy
[16]If the claimant establishes any of their complaints, to what remedy are they entitled? Specifically: 16.1. What basic and/or compensatory award is payable to the claimant, if any? 16.2. Is it appropriate to adjust any award due to unreasonable failure to follow the Acas Code? Findings in fact[17]This judgment does not seek to address every point about which the parties have disagreed. It only deals with the points which are relevant to the issues which the Tribunal must consider to decide if the complaints made succeed or fail. If a particular point is not mentioned, it does not mean that it has been overlooked, it simply means that it is not relevant to the issues. The relevant facts, which the Tribunal found to be admitted or proven, are set out below.[18]The respondent provides operational support and facilities management services to third-party clients with properties throughout the UK. In this capacity, they were appointed as property managers of St James Quarter in Edinburgh (SJQ).[19]SJQ is a 1.7 million square foot mixed use development in Edinburgh city centre. It includes retail stores, restaurants and bars, a cinema, a 5 star hotel, an apart hotel and private apartments. The retail galleria opened in June 2021. The apart hotel opened in early 2023 and the hotel opened in late 2023.[20]The claimant completed an Engineering Modern Apprenticeship in 2006, while in the Royal Navy, where he then worked as an Engineering Technician for 2 years. He subsequently worked in a variety of roles (most recently as Health & Safety Manager at University of Edinburgh and then providing, via his own company, consultancy services in safety, risk management & technical services). He has also secured a number of further qualifications, including: 20.1. An HNC in Electrical Engineering (2011); 20.2. NVQ Level 5 Diploma in Occupational Health & Safety Practice (2016); and 20.3. Postgraduate Diploma in Safety and Risk Management (2019).[21]He has various professional memberships, including chartered membership of the Institution of Occupational Safety and Health, since 2019.[22]The claimant commenced employment with the respondent on 4 September 2023, as Technical Services Director (TSD) of SJQ.[23]The claimant entered into a Contract of Employment with the respondent on 26 July 2023 (the Contract), prior to the commencement of his employment. This provided that his salary would be £80,000 and he could receive a discretionary bonus of up to 25% of base salary.[24]Attached to the Contract was a Job Description for the role of TSD and the respondent’s Employee Handbook. The job description stated the TSD was a strategic role, with responsibility for ensuring smooth operations of all technical aspects of the development, and overarching technical responsibility for procurement of all mechanical and electrical services, life safety, security systems, digital, telecoms, vertical transportation and IT contracts. The job description also stated that the TSD was also responsible for ‘ensuring full compliance with all statutory requirements, codes of practice and health & safety requirements at all times.’ Under the heading ‘Key Responsibilities’, and the subheading ‘Safety and Security’ the Job description confirmed that the TSD was responsible for the SJQ Health and Safety Policy, and ensuring this was communicated to all staff, and reiterated that the TSD was responsible for ensuring health and safety compliance. As part of this responsibility, the claimant subsequently became Chair of the H&S Committee at SJQ and a named duty holder at SJQ under the Fire (Scotland) Act 2005, among other safety designations.[25]The Contract confirmed that the claimant’s employment was subject to a 6 month probationary period, in which his performance and suitability for the role would be monitored. It stated that his employment may be brought to an end at any time during, or at the end of, the probationary period, on one week’s notice. The Handbook confirmed that probation review meetings could be conducted without prior notice and that there was no right of appeal against any probationary decisions taken.[26]When the claimant commenced employment with the respondent, the incumbent TSD was still in role, but due to retire in January 2024. It was envisaged that, in the 4 month period from September 2023 to January 2024, there would be a comprehensive handover of the TSD role.[27]The TSD reported to the Centre Director. At the time the claimant’s employment commenced, the Centre Director role was being covered, on an interim basis, by Centre Director of the Metrocentre in Gateshead. The TSD formed part of the Senior Leadership Team (SLT) at SJQ.[28]On/around 26 September 2023, the claimant raised with the SLT at SJQ that he had been made aware that became aware that some scaffolding at the W Hotel, above the SJQ, had collapsed and had caught on a fitting. Had it not caught on a fitting, it could have fallen into the retail galleria of SJQ. This was discussed amongst the SLT and their collective concern in relation to this was reported to the respondent’s client by the Operations Director, on behalf of the SLT. In that email, it was highlighted that the full circumstances of the incident were not known to the SLT. There was a discussion, by email, regarding whether the incident was RIDDOR reportable. In an email dated 4 October 2024, the claimant stated ‘Personally, I feel that if [the contractor] have reviewed the specific RIDDOR criteria and they have determined that that criteria is not met and informed us of this fact, then full liability rests with them and if this was ever challenged, the burden of proof would be theirs. Without access to the full facts, I don’t feel there is much more we can add to this. I’m comfortable that we have performed our due diligence.’[29]The claimant had a month 1 probationary review on 4 October 2023. This was conducted by the interim Centre Director. It was a positive review, noting that progress was being made with the induction programme and mandatory training, and that the claimant had been given some specific tasks by LJH, including in relation to eyebolts and ‘reviewing all systems and documents to review any gaps the centre might have post development phase.’ Targets were set, to be achieved by months 3 and 6 of the claimant’s probation period, and were detailed in the probation review form subsequently compiled. One of the month 3 targets was ‘BMS and Utilities process in place to resolve issues’. BMS meaning Building Management System.[30]AL commenced employment, as Centre Director for SJQ, on 23 October 2024. She had 25 years’ experience in similar roles, most recently as Centre Director at the St Enoch Centre in Glasgow for a 10 year period. During her time in that role, she oversaw two redevelopments of the Centre.[31]As noted at his month 1 probationary review, the claimant had been asked by LJH to conduct a detailed investigation and produce a report in relation to an issue with eyebolts in SJQ. This followed on from an incident in November 2022, when an eyebolt holding a Christmas decoration detached, and two additional failures which were discovered during routine testing in June 2023. On 6 November 2023, the claimant provided a draft report to AL and LJH setting out his findings in relation to this. He recommended that the use of the eyebolts be temporarily suspended, as a precautionary measure, and set out further recommendations to ensure safe operation of the eyebolt system going forward.[32]On 23 November 2023, the claimant was contacted by a consultant at Verco, who had been instructed by the respondent’s client. She explained that data compiled by the respondent (which was then uploaded onto a platform called Carbon Desktop) was used for investor reports, to try to publicise SJQs positive actions for sustainability and so investors could understand the performance of SJQ, and improvements could then be targeted to reduce energy/water/waste consumption. She highlighted that there were outstanding data issues in relation to SJQ, and sought a meeting, so that the issues could be resolved and a course of action for data uploads agreed. As this fell within the claimant’s remit, he responded and a meeting ‘to establish the requirements of ESG reporting, working towards improving the data completeness at the asset’, took place on 5 December 2023. At the meeting, it was agreed that the claimant and LJH would establish where the current data on Carbon Desktop had originated from, and the claimant agreed to review what meters were in place at SJQ and send a list of those to Verco, together with a list of where meters were missing and therefore required to be installed and set up.[33]By letter dated 1 December 2023, the claimant was informed that he would receive a £5,000 bonus in December 2023, and that his salary would increase to £82,000 from 1 January 2024. Decisions regarding bonuses and salary increases had been made in October 2023.[34]AL conducted the claimant’s month 3 probationary review on 1 December 2023. On Monday 4 December 2023, she sent the claimant an updated Probation Review Form, reflecting their discussion and the conclusions reached. She used the form which had been completed at the month 1 review, amending the summary of performance to date to cover her view on the claimant’s performance to that point. The section entitled ‘summary of performance at one month review’ remained as completed previously. She added detail to the section entitled ‘summary of performance at three month review’, noting that the claimant was making progress on the tasks required, and commending his ‘excellent contribution and expertise in the eyebolts issue’ which she stated had been ‘recognised at all levels’. She noted that a number of challenges had been discussed at the review, stating that these impacted the claimant’s time and resource availability to deliver some of the tasks fully, as originally envisaged. She then provided detailed comments in relation to each of the month 3 objectives. Where the month 3 targets had not been achieved, she provided comments how these could now be achieved. In relation to the target ‘BMS and Utilities process in place to resolve issues’ she noted ‘This will be targeted to have manual process in place to ensure recharges where data is readily available, together with a remedial to identify any metering issues to be resolved with development team. Estimated timeframe one month delivery, with caveat possible two months depending on immediate findings. AL/LJH to be kept up to date with any immediate findings that may cause issues.’ This linked with the actions the claimant had agreed at the meeting with Verco on 23 November 2023. In relation to the month 6 targets, which had been set at the month 1 review, she also provided some commentary as to how these may be achieved, breaking the targets down into manageable actions. The form was subsequently provided to the claimant for signature.[35]The claimant provided a signed review form to AL on 12 December 2023. In his cover email he indicated that he was fully committed to the objectives set for the upcoming three months, but wanted to highlight some challenges he faced in doing so. He stated that he was dedicated to resolving the challenges, but doing so may take longer, or require a different approach, to that originally planned. He stated ‘Case in point, whilst reviewing the water metering data with Stephen at the end of last week, it became apparent that the historical data which is critical for recharging may not be accurate, with discrepancies between the historical data logged on the BMS and recent actual meter reads. There is also a lot of missing data. As no historical meter reads have been documented, I now need to develop a plan to resolve this complex issue in a timely manner.’[36]At the claimant’s review on 1 December 2023, AL and the claimant had also discussed the potential of a Technical Services Manager being recruited to assist the claimant. It was agreed, and recorded in the review form, that recruitment of support would be prioritised. AL asked the claimant to provide a job description for the role. The claimant agreed to provide this by the following day, but did not do so.[37]By 3 January 2024, the claimant had still not provided AL with a job description for the role of Technical Services Manager. She was surprised at this. This, together with other concerns, led her to start to question whether the claimant would be able to undertake the role of TSD. AL raised this in an email to her manager that day stating ‘It has been over a month since first promised (by next day) and the ‘incidents’ that were preventing completion are very much par for the course in this world. It does give me real concerns about John’s ability to plan, prioritise and get the day job done without being distracted and getting too involved in reactive issues (often that someone else is or can be dealing with) or continually being blocked by reasons not to complete tasks’ The previous TSD retired on 4 January 2024.[39]On 4 January 2024, the consultant at Verco sent an email to the claimant asking if he had made any progress re the actions agreed at their meeting on 5 December 2023. She sent a further email on Monday 8 January 2024 stating that she required data by the end of that week, for reporting purposes. She asked if that would be possible and, if not, if an update could be provided regarding data collection and an estimated date for completion. The claimant replied that day, stating that he had made some good progress verifying the historical data sources and was more reassured re past data inputs. He stated that he still had some verification to carry out, but expected this to be completed by the end of the week. He suggested a call in the early part of the following week to update/discuss next steps.[40]On 9 January 2024, a planned fire evacuation was conducted at SJQ. In the course of that exercise, it was noted that, whilst the fire alarm sounded, other actions to ensure safety in an evacuation, which were meant to be triggered automatically, were not triggered. The claimant reported this to AL, in the debrief discussion which took place following the exercise. She asked that he investigate why this had occurred and take steps to resolve the issue. On 16 January 2024, the claimant reported to AL and LJH that aspects of the system had been placed in ‘sleep mode’, which is why a number of actions were not triggered automatically when the fire alarm sounded. It was agreed that the claimant would liaise with the respondent’s contractor, ABM, to obtain quotes to repair the system and resolve the issues, as soon as possible.[41]On Monday 8 January 2024, the SLT met to plan for an Asset Management Meeting that was scheduled to take place with the respondent’s client on 17 January 2024. It was noted that a report would be provided to the client in advance of the meeting and agreed that each member of the SLT would provide their input for that report, by lunchtime on Friday 12 January 2024. The claimant did not meet the agreed deadline and (with the exception of one SLT member who was on holiday) was the only member of the SLT to fail to do so. AL chased the claimant for his input into the report again on Monday 15 January 2024. Whilst he promised to provide this within the hour, he did not do so. AL ultimately sent the report to the client without any technical services input – the report simply stated ‘no technical update’.[42]The Asset Management Meeting took place on 17 January 2023. It was attended by the SLT and representatives from the respondent’s client. The format of the meeting, as set out in an agenda circulated in advance, was that, in the morning, each director provided a 10-15 minute overview in relation to the area they are responsible for, with reference to the report. In the afternoon particular areas were picked out for more in-depth discussion. When it came to the claimant’s morning presentation, despite the report (which was shown on screen during his presentation) stating ‘no technical update’, the claimant raised significant issues, such as: 42.1. The issues identified in the fire evacuation exercise, in particularly the fact that automatic triggering of actions to ensure safety in an evacuation were not triggered; and 42.2. That there were electricity metering/consumption discrepancies and some water meters missing entirely or data in respect of existing water meters was missing, which may impact the data to be provided to Verco.[43]The claimant’s presentation was from a page of handwritten notes. He ran over his allocated time. LJH and her manager, as well as the client, commented to AL that the claimant appeared unprepared and questioned why he had failed to prepare a report, when there were clearly significant issues for him to raise.[44]On Monday 15 January 2024, the claimant asked the consultant at Verco to push back the discussion which he had suggested for the start of that week, so that it took place at the end of the week instead. He stated that this was due to having ‘identified further metering issues that I need to validate but these have proved quite complex’. AL was not copied into this email, and he did not discuss it, or any concerns he had with the data or meters, with her. The consultant at Verco chased the claimant on Wednesday 17 January 2024 as to when he would be available, stating that they required the data by Friday morning at the latest. Shortly thereafter the respondent’s client sent a chaser email to the respondent, headed ‘SJQ Data Gaps’ asking that the necessary information and data be provided to Verco. The claimant responded the following morning, stating that the data would be sent to Verco later that day, but stated that this was ‘with a significant caveat that this will be revised’ due to metering issues which had not yet been resolved. The claimant worked on data for the rest of that day, cancelling a meeting with AL at 4pm that day, which she had scheduled to discuss the available data, and any issues in relation to this, before it was uploaded. The claimant then uploaded the information to Carbon Desktop that evening, including the caveat that the information submitted would require to be revised due to metering issues which had not yet been resolved. He did not however inform Verco that the data had now been uploaded onto Carbon Desktop.[45]On the morning of 18 January 2024, LJH’s line manager sent a short email to the claimant, copied to AL and LJH. In the email he highlighted that he had received a call regarding a heating issue in one of the retail units at SJQ. He asked the claimant to contact the individual. The claimant responded to all, just under 20 minutes later, stating that he had spoken to the individual and agreed to pop over and take a look at their heat interface unit to check its status and performance. He stated ‘Based on the history I’m aware of, it could be that they have undersized this, not fully considering the galleria temp and size of their open storefront. It might well be the case that their HVAC is running at 100% and might not have the capacity of heating the sore with such low external temps.’ LJH’s line manager then replied, just to her, stating ‘In true JW fashion defaulting to “Huston we have a problem” mode before he has even got to the unit………….!’[46]The view expressed by LJH’s line manager was not unique. AL was becoming increasingly concerned that the claimant would not be able to undertake the role of TSD. She felt he appeared to be overwhelmed with the requirements of the role, seeing day to day issues as insurmountable problems, rather than strategically identifying solutions and managing the resolution of them. She felt he was missing deadlines and not making the progress she expected him to. She felt his performance was becoming chaotic, and he was not taking onboard feedback or support. She was aware however that he was about to go on holiday and felt this may provide an opportunity for him to reset. She had asked him to prepare a handover note, setting out the issues that might arise in his absence which she would require to cover, and send this to her, in advance of a handover meeting to be held on Friday 19 January 2024. He did not do so.[47]On the morning of Friday 19 January 2024, the claimant and AL met to discuss issues which AL would require to cover while the claimant was on holiday the following week. At the start of their discussion, AL asked the claimant about the data upload. She wanted to understand the data sources, how she could access this and the caveats, so that she could respond to any queries regarding the data, in the claimant’s absence on holiday. The claimant stated that he felt that he had not been supported in uploading the data and had required to work late to do so. He stated that he was very concerned that the data was not accurate, that AL/LJH had changed the instruction, at the last minute, for him to upload this and that what he was being asked to do could be construed/perceived as fraud. AL responded that this was not the case: He was asked to upload data based on the sources the respondent had, and had the ability to add comments regarding the ongoing data investigations, as he had done by adding caveats. She clarified that the instruction had not changed – it had always been a requirement, from the client, that the data be uploaded, and that this required to be done by a particular date. She asked to see the data which he felt was inaccurate, so that they could review together and discuss, but the claimant was not able to produce this or demonstrate why he felt this was the case. Instead, he continued to indicate that data was inaccurate, citing figures of 300% and 3,000%, but not providing any evidence basis for this. AL could not understand why the claimant, a director and member of the SLT, who had been assigned responsibility for overseeing this task months previously, had stated to Verco on 8 January 2024 that he had made ‘good progress verifying the historical data sources’ and ‘was more reassured re past data inputs’, so he expected to upload the data by the end of that week, if his position was that the data was wildly inaccurate, as he was now stating.[48]The claimant then stated that his workload was not manageable, and he felt that he was not supported, particularly since the previous TSD and the Head of IT left. AL countered by stating that she had discussed with him in November the potential of a Technical Services Manager being appointed to support him, but he had failed to provide a job description for the role, as he had undertaken to do. In addition, the claimant had determined the date of the Head of IT’s departure and, while AL had specifically asked the claimant about steps to replace that individual, the claimant had assured her this was not required. She stated that he was on holiday the following week and could take time to switch off and come back refreshed, but highlighted that he did need to consider his approach to issues and his prioritisation and time management. The claimant became angry at the suggestion that he had issues with time management, and stated this to AL. He denied this was the case and asked for specific examples. AL cited his failure to provide input for the report to be provided to the client, in advance of the Asset Management Meeting, noting that he was the only Director not to input into the report and not to prepare fully for the meeting, which reflected in his performance at the meeting in front of the respondent and their client. The claimant reiterated the issues which he faced in his role, stating that there was no understanding of these, and no support. AL responded that she was fully aware of the challenges, and no one was blaming the claimant for these, but asked him to respect her advice to consider priorities and time management. The claimant stated that he would need to consider his position, alluding to not continuing in his role. AL stated that they needed to get on the same page, and that it was clear they were not at that time. The claimant, who was very angry and upset by that point, stated that the situation was ‘starting to feel like bullying’, that he didn’t want to continue meeting, and walked out. No handover of work had been discussed.[49]That afternoon, at 15:19, the claimant sent an email to AL, copied to LJH and LM, entitled ‘Unscheduled Performance Feedback Meeting’. In his email he acknowledged he had left the meeting prematurely, and set out that he was surprised and disappointed at the feedback. He set out his position regarding his workload and his perception of the support afforded to him and stated that ‘to constructively move forward, I would greatly appreciate more detailed feedback on the areas of concern you mentioned, ideally with specific examples. This will help me understand and address these issues more effectively.’ He concluded by stating that he remained committed to his role, with support, and looked forward to finding a constructive path forward.[50]AL responded at 16:02 stating ‘Thanks John. I hope you have a good holiday and take time to switch off from work. We can discuss further when you get back.’[51]At around 16:10, the claimant approached AL and asked to have a discussion with her. She agreed. He was agitated and started to raise the issues they had discussed that morning, stating he was on probation and did not want this hanging over him on holiday. He asked if the situation was catastrophic. AL stated that she could not have a discussion with him, as he had raised an allegation of bullying and that was an HR matter, which would need to be addressed by them. The claimant stated that he did not mean bullying, or intend to raise an allegation of bullying, and apologised to AL for stating that. She reiterated that he should take time out and enjoy his break and they could meet again and discuss on his return.[52]The claimant was absent on holiday from that day, returning to work on 29 January 2024.[53]In response to the claimant’s request for ‘more detailed feedback on the areas of concern you mentioned, ideally with specific examples’, while the claimant was on holiday, AL had prepared notes, for use as a prompt/script, for a discussion with him when he returned. These covered two typed pages. In the first instance she wanted to clarify his position regarding his comments re bullying and fraud. She understood that he had been stressed at the time of the previous meeting, and had used emotive language during it. He had later stated to her that he retracted the bullying comment, but was clearly still agitated at that time. She wanted to understand if, on reflection, he maintained his position regarding either comment. If he did, then those matters would require to be addressed, before discussing the concerns which AL had regarding the claimant’s performance. The remainder of the note addressed those concerns. In summary the concerns noted were that: the claimant did not take on board feedback; he became hyper focused on issues, getting personally involved and deeply drawn into the problem itself, rather than taking a strategic approach, making recommendations for resolution and managing others (internal and external resources) to resolve the issue; and there was a pattern of time management and prioritisation issues. Bullets of 6 particular examples were prepared. These related to: 53.1. Her view that the claimant was not taking action, or making progress, in relation to the challenges/issues he had identified (such as lack of O&M manuals and issues with BMS and CAFM); 53.2. The claimant had not produced a proposal to resolve the issues with the Fire System, despite this being urgent; 53.3. Despite being tasked with resolving metering issues at the start of his employment, he only started to focus on this in January 2024, then missed deadlines regarding reporting and was not producing data to back up his claims that the figures held by the respondent were ‘wildly inaccurate’; and 53.4. The claimant failing to prepare for the Asset Management Meeting.[54]On Tuesday 23 January 2024, Verco sent an email to the claimant, copying in numerous other senior individuals, including AL, asking him to send through the 2023 SJQ data as soon as possible, as the quarterly report was due the following week, so this was now very high priority. AL responded to Verco that the claimant was now on holiday, and she would pick the matter up. She identified that the claimant had in fact uploaded the data, but had not informed Verco he had done so, so they were unaware. AL then reviewed the data, so she was in a position to respond to Verco regarding the queries which they then raised in relation to the data, over the course of the following week.[55]Overnight on Wednesday 24 January 2024, there was a High Voltage shut down. AL was called at 7am the following morning, regarding serious issues which had been identified during the HV shutdown. AL was extremely surprised that this had been organised for a time when the claimant was on holiday (stating that she would not authorise annual leave for any TSD over a period when an HV shut down was scheduled), and that she had not been made aware of this by him. She arranged and attended a meeting at 9am with other senior stakeholders in relation to the serious issues identified. At that meeting, steps to escalate the issues identified, and steps to be taken to work towards a resolution, were agreed. Discussions then continued regarding these matters over the course of that week.[56]The claimant returned to work on 29 January 2024. At 12:46 that day, AL sent an email to the claimant and LJH (who had also been absent), forwarding them the email trail regarding actions taken in relation to the issues identified following the HV shut down, and the actions taken. She stated that the last attachment was confirmation that the issue was being elevated by Laing O’Rourke.[57]The claimant responded, at 15:39 highlighting his grave concerns at what had been identified, stating ‘an 11,000 vault fault of that nature could be catastrophic to the integrity of the substation and HV network with a high likelihood of substantial damage/fire’. He went on to state ‘Most significantly, I’m concerned that we don’t have a High Voltage Safe System of Work in place with no HV Safety Rules, no Control Documentation and no appointments of competent persons (AP/SAP/AE). Whilst Quartz (via ABM) take control of the system during their annual maintenance, their contract explicitly states that the system remains under SJQ’s operational control until they take temporary control through a Control Transfer Certificate but only for the duration of the maintenance. This leaves us exposed and we’d have difficulty demonstrating compliance with the Electricity at Work Regulations 1989 and associated statutory guidance. I’d recommend that we urgently review our controls for HV and LV electrical systems, develop the necessary safe systems of work and implement the controls with the support of an appointed Authorising Engineer.’[58]AL responded at 16:42 stating ‘Thanks John, that is a concern and I presume relevant controls will now be put in place. Did ABM undertake these works without your knowledge or authorisation?’[59]The claimant responded at 17:17 confirming that he was aware that the work would be undertaken, and that he would now take the necessary action. He stated however that setting up a new safe system of work for HV was not a ‘quick fix’ and there was ‘a few days of work in it just to produce the documentation then there will be appointments to be made.’ He indicated that he was expecting quotes shortly for an AE. He stated that he still had concerns that the system remained live, but stated that he appreciated this will have been discussed extensively over the last week, and that there wasn’t a quick fix.[60]At 15:33 that day, AL sent a further email to the claimant and LJH providing a summary of the actions taken in their absence in relation to Verco and the data submitted on Carbon Desktop, the current position and actions required. Her email stated: ‘With regard to the Nuveen request for confirmation of consumption data for Carbon Desktop reporting, below is my understanding of the current position and actions required. Electricity: The attached email was sent to Verco last week, showing that the Electricity data aligns with the Equans consumption information we have at present. Note submitted regarding the ongoing verification of these meters. ACTION: No further action at this stage - can confirm all in order (with caveat on verification)? Water: The information held on Carbon Desktop starts approx. 50k under the actual meter readings provided by Stephen Pusey. This means the actual meter reading consumption is 170k vs 115k. SP actual meter reads broadly align with ABM meter reads at 1% variance Otherwise, the tracked consumption from there onwards is broadly aligned at 4% variance. ACTION: Are we missing initial consumption circa 50k on water? Gas: The information held on Carbon Desktop is broadly aligned with recharge spreadsheet data to 28/08/23 at 6% variance. ACTION: We can presume the remaining CD entered information to end December can be taken as accurate?’[61]At 18:03, the claimant responded as follows: ‘I was a bit surprised to see this chain over the last week as I submitted all of the data to Verco the week prior as we agreed. The email chain last week which was eventually escalated copying in Chris P, seems to suggest that I never uploaded the data which is concerning. Electricity: On explicit instruction I've only entered the electricity data using the same strategy that was used previously, i.e., using the Equans provided data. This only includes consumption on HV02 and not HV01 . HV01 shouldn't have a load unless there is a primary supply failure but we know conclusively through sub metering that there is still a reasonable load on this board at all times. The EDF fiscal meter on HV01 is faulty and reads 0. Re HV02, we know and can demonstrate through sub-metering, the Equans data is wildly inaccurate where (as an example) in one month (July 23) Equan's report 15,000kwh of landlord consumption but the true figure is much closer to 350,000kwh, which is nearly 25 times higher. I cant even say it balances out over time as there is a consistent massive under recording of landlords consumption on the Equans spreadsheet for a long period of time. Coupled with no recording of HV01 usage, the figures entered on Carbon Desktop are under-reported to several hundred percent. Water: I haven't reviewed the historical data on Carbon Desktop and I've not been able to find or acquire any historical meter reads. The data I entered was either recent meter reads where available or BMS data where no manual read data existed. The BMS data isn't aligned with the actual meter read but the monthly usage amount seems consistent. I do believe that this meter was changed in the past and this may account for discrepancies but I've been unable to find a timeline or historical records for this. Gas: I have absolutely no idea what Ben's previous strategy was as none of the data sources I have access to have aligned with his reported figures. I've used LJ's recharge spreadsheet as this seems to be the most accurate data available. The BMS data is obviously very inaccurate. There does appear to be a discrepancy between the overall actual meter read record and the gas recharge spreadsheet but I've not yet been able to find a reason for this. Carbon Desktop: I've attempted to log back in to CD today but my access appears to have been blocked. I tried to reset my password to no avail. This all requires further detailed investigation and each meter verified but this is a sizable task.’[62]On his return to work, the claimant was invited to a meeting, to take place on 30 January 2024, with AL and LM. She arranged for LM to be present, as the claimant had copied her into his email, and AL also felt it was appropriate to now have an HR representative present, given the claimant’s assertion of fraud and bullying (albeit the latter had been retracted). AL arranged the meeting to discuss those issues and to follow on from the discussion held between her and the claimant on 19 January 2024, prior to his holiday, and his subsequent email where he requested more detailed feedback on the concerns she had raised regarding his performance, with specific examples.[63]The meeting took place on 30 January 2024 and lasted approximately 2 hours. LM took notes of the meeting. At the start of the meeting the claimant was asked about his previous comments. He stated that he was concerned about the data that he had entered into Carbon Desktop, as he remained of the view that they were inaccurate, but confirmed that no one had asked him to commit fraud. He also confirmed, as he had on the afternoon of 19 January 2024, that he was not making an accusation of bullying against AL. AL confirmed that, given that the claimant had confirmed his position regarding those points, she was happy to proceed with the meeting. She highlighted that matters were left that the claimant would take a break and a way forward would be discussed on his return. She asked him what he thought that was. The claimant reiterated the problems and challenges he faced in his role. AL asked him again how he felt things could be moved forward, and what his priorities were. The claimant stated it would take a lot of effort to document and map out a way forward and priorities, and that would be difficult to do, given his workload and the challenges he faced in the workplace, including the lack of a handover from his predecessor. He stated that he had raised these issues/challenges, and the lack of handover, throughout his employment and had ‘not been quiet’. AL responded that she appreciated he had not been quiet in relation to those issues, but stated that there had been a 4 month handover and that it was the responsibility of the claimant and his predecessor to work on this. The claimant set out that he felt this was solely the fault of his predecessor. The meeting continued with AL continuously seeking to move the discussion onto to how move forward and resolve the issues/challenges, which she acknowledged he faced. The claimant however consistently moved the conversation back to the problems and challenges he faced in his role, focusing on the problems/challenges themselves, including why they existed and why others were responsible for them, as well as asserting that he was not supported, but not engaging in any discussion regarding how to find a resolution. In the end, rather than continue in that loop, AL asked the claimant to prepare, in the next week, a high level work plan, breaking down the challenges he faced into manageable/bite size chunks and setting out the steps that could be taken to address them, including the support he required, when those steps would be taken and how they would be prioritised. If she could see a plan of how the claimant intended to approach/tackle issues and move forward, and what he felt he could deliver in the next few months, that would bring them closer to being on the same page. She stressed that the work plan required to demonstrate the claimant’s plan to get results and progress over the next few months, not simply to detail what the problems/challenges were.[64]The claimant then moved discussion to his 6 month objectives, stating that these would require to be re-written or deleted, as he understood he was in a probation period and would be assessed against these at the end of the 6 month period, which was in 5 weeks’ time. He stated that the objectives, which had been set at the start of his employment, were undeliverable. He stated that he thought his employment would be terminated at the end of the probation period, and had concerns as to how he would cope if that happened. AL indicated that she would not amend the claimant’s objectives, but stressed that that not all objectives require to be completed/achieved, he just required to demonstrate progress towards the objectives. The claimant continued to press the point stating that he felt it was unfair to maintain his objectives. This was discussed at length. AL maintained her position that she would amend the claimant’s objectives, and the claimant then left the meeting, stating that his objectives were unachievable.[65]Following the meeting AL reflected on the discussion and the concerns which she had in relation to the claimant’s performance in his role. Those concerns remained, but she now felt that the claimant would not improve his performance, nor accept responsibility for doing so. She felt that they had reached an impasse: there was no agreed way forward, despite two lengthy, and difficult, meetings. She felt that the claimant was not receptive to being line managed or receiving feedback. Given the way the meeting had ended, she did not expect the claimant to produce the work plan, which had been discussed before the disagreement about objectives. It was clear to her that they were ‘not on the same page’: her expectations regarding the role of TSD, and those of the claimant, were not aligned. She did not envisage that changing. She concluded, as a result, that his probation period should be brought to an end and his employment should be terminated. She discussed this with her manger, senior management within Savills and their client over the next few days. Approval of AL’s recommendation, to terminate the claimant’s employment, was in place by Friday 2 February 2024.[66]On 5 February 2024, at 10:39, the claimant sent AL and LJH an email which attached a proposal for the provision of HV Authorising Engineering services to SJQ, including the development of HV Safety Rules and a Safe System of Work. He reiterated the reasons this was required, as had previously been set out in his email of 29 January 2024. He reiterated his concerns regarding the fault which had been identified during the HV shut down in his Technical Update, to be included in a report to the client, which he sent to AL that day.[67]AL had not seen the claimant since their meeting on 30 January 2024. She had been on scheduled time off on 1 & 2 February 2024. On Monday 5 February 2024, at 9am, the claimant sent a work plan to AL. She was not expecting the claimant to do so, given the way the meeting on 30 January 2024 had ended. She did not review this, as a decision had already been taken that the claimant’s employment would be terminated. A meeting was arranged for the following day at 10am. At the start of that meeting, the claimant was informed that his probationary period would be brought to an end, his employment would be terminated, and he would not require to work his notice period.[68]A letter was given to the claimant on 12 February 2024, confirming the termination of his employment and that he would receive 4 weeks’ pay in lieu of notice. Submissions[69]Both parties lodged written submissions, which they supplemented with brief oral submissions. Claimant’s submissions[70]In summary, the claimant submitted that: 70.1. The disclosures he relies upon, each made in January 2024, were qualifying and protected disclosures, with reference to section 43B-E ERA, and the relevant case law. Each met the requisite tests. 70.2. Given the requirements of his role, and the fact that he was the person primarily responsible for health and safety at SJQ, he was, for the purposes of s100(1)(a), ‘designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work’ and carried out those activities. The case of Castano v London General Transport Services Ltd [2020] IRLR 417 involves an entirely different factual matrix. 70.3. His dismissal was materially influenced by the protected disclosures. No formal capability or disciplinary process was initiated. He had not been given any formal warnings regarding his performance, and no procedure was followed at all in relation to his dismissal. This is because the performance narrative was constructed/reverse-engineered after the protected disclosures were made. He was ambushed at the meeting on 6 February 2024, which was deceitfully arranged. 70.4. Alternatively, his dismissal was automatically unfair under s100(1)(a) ERA. He raised safety concerns and was dismissed as a result of doing so. The chronology speaks for itself. 70.5. He should be awarded compensation, as detailed in his schedule of loss. Respondent’s submissions[71]In summary, the respondent submitted that: 71.1. A worker will only be “designated” for the purpose of section 100(1)(a) where their designation is “over and above their ordinary job duties” (Castano v London General Transport Services Ltd [2020] IRLR 417). The claimant’s health and safety-related activities were part of his ordinary job duties. This complaint must, accordingly, fail. 71.2. While he may have made allegations, the claimant has not articulated any instances where he disclosed information which satisfied the statutory criteria. 71.3. The claimant’s line manager believed he was not meeting the expectations of the role and would not be able to do so. Those failings, coupled with his hostility to being line managed and refusal to accept any responsibility for his underperformance, led to the termination of his employment. This was the reason for dismissal. 71.4. The claimant’s claim rests on an inherent contradiction. The claimant makes two concurrent assertions which are logically irreconcilable. The first is that his tasks assigned to him in his probation were – in his own words – not humanly possible to do. The second is that the respondent could not have had any legitimate performance concerns with him because he was doing such a great job. Even if the Tribunal accepts that the probation targets were manifestly unreasonable, the fact that the probation targets were set before the asserted disclosures/health and safety activities is fatal to the claimant’s claim. 71.5. The claimant’s decision to litigate comes from his belief that his dismissal was unfair in the ordinary, everyday sense of the word. None of the contemporaneous documents show the claimant voicing any concern that he was being targeted for being either a whistleblower or a champion of health and safety. That narrative was only introduced after dismissal, presumably when he became aware of the 2 year qualifying period for unfair dismissal. Relevant Law Protected Disclosures
Relevant Law
[72]Section 43A of the Employment Rights Act 1996 (ERA) provides: “In this Act a ‘protected disclosure’ means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”[73]A qualifying disclosure is defined in section 43B ERA as “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; orf. That information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.”[74]Section 43C ERA states that ‘a qualifying disclosure is made in accordance with this section if the worker makes the disclosure to his employer…’[75]In Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, at paragraphs 35 and 36, the Court of Appeal set out guidance on whether a particular statement should be regarded as a qualifying disclosure: “35. The question in each case in relation to section 43B(1) (as it stood prior to amendment in 2013) is whether a particular statement or disclosure is a ‘disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the matters set out in sub-paragraphs (a) to (f).’ Grammatically, the word ‘information’ has to be read with the qualifying phrase ‘which tends to show [etc]’ (as, for example, in the present case, information which tends to show ‘that a person has failed or is likely to fail to comply with any legal obligation to which he is subject’). In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1).” “36. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill J in Chesterton Global at [8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters, and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.”[76]In Simpson v Cantor Fitzgerald Europe [2020] ICR 236, the EAT confirmed these principles, stating: ’43... As the Court of Appeal in Kilraine v Wandsworth London Borough Council [2018] ICR 1850 made abundantly clear, in order for a statement or disclosure to be a qualifying disclosure, it has to have sufficient factual content and specificity such as is capable of tending to show breach of a legal obligation. 69. The tribunal is thus bound to consider the content of the disclosure to see if it meets the threshold level of sufficiency in terms of factual content and specificity before it could conclude that the belief was a reasonable one. That is another way of stating that the belief must be based on reasonable grounds. As already stated above, it is not enough merely for the employee to rely upon an assertion of his subjective belief that the information tends to show a breach.’ Automatically Unfair Dismissal – Protected Disclosures[77]Section 103A ERA states that: ‘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.’[78]In Fecitt and others v NHS Manchester, the Court of Appeal held that the causation test for unfair dismissal is stricter than that for unlawful detriment under s47B ERA: s103A ERA requires the disclosure to be the primary motivation for a dismissal. Automatically Unfair Dismissal – Health & Safety Grounds[79]Section 100(1) ERA states: ‘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 - (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities… Observations on evidence[80]In relation to the issue set out at paragraph 10.4 above, In his ET1, the claimant referenced concerns being raised with the respondent regarding the lack of accurate metering data impacting the integrity of the billing process. While he gave evidence of the fact that issues in relation to billing had been identified, that it fell within his remit to rectify this, that he produced reports in relation to the issues identified and how he proposed to rectify these, he did not give evidence of specific occasions when he had raised particular concerns in relation to this with the respondent, or refer the Tribunal to any documents in which he raised concerns in relation to this with the respondent. The Tribunal were accordingly did not make any findings in fact regarding specific concerns being raised by the claimant, on any particular occasion, in relation to the integrity of the billing process. Instead, the claimant’s evidence, and the documents the Tribunal were referred to, focused on him raising concerns in relation to the provision of inaccurate information to Verco. The Tribunal’s conclusions in relation to that matter, and whether it amounted to a protected disclosure, are set out below.[81]Little/no evidence was led in relation to the issues set out in paragraphs 14.3 and 14.5 above. The Tribunal concluded that these issues were not established in evidence and made no findings in fact in relation to them.[82]In relation to the issue raised at paragraph 14.4 above, the claimant led evidence in relation to this, asserting that he raised concerns with AL. AL however indicated that he did not do so, and she was entirely unaware of the issues now asserted. On balance, the Tribunal preferred AL’s evidence in relation to this matter. The claimant’s position was that he orally raised with AL an extremely serious fire safety hazard, stemming from the construction of the Roomzzz Apart Hotel, which meant that fire would not be contained and would readily spread. He stated that he had also, again orally, raised that SJQ’s fire risk assessment had been undertaken by an individual who was not qualified to undertake the assessment. His evidence was that AL dismissed his concerns, stating that he ‘should stop finding problems and focus on the issues in front of him.’ His evidence was that he did not then raise these matters further in any way. The Tribunal did not accept this was credible. If raised, these matters were amongst the most serious issues raised by the claimant. It was not credible that, if raised and AL did say this, the claimant simply accepted that and did not raise these extremely serious concerns raise these concerns in writing, or with someone else. He was the named duty holder at SJQ under the Fire (Scotland) Act 2005, was Chair of the Health and Safety Committee at SJQ, has health and safety qualifications and was, as per his Job Description, responsible for ensuring full compliance with health and safety requirements at all times.[83]For the avoidance of doubt, whilst the claimant also gave evidence in relation to concerns raised on 5 February 2024, for example within the work plan he sent to AL that day and in his Technical Update, to be included in the report sent to the client, which was also sent to AL that day, these were not considered below as protected disclosures, or health and safety activities. They could not have been the sole or principal reason for dismissal, as they occurred after the decision was taken to dismiss the claimant. Discussion & Decision Disclosures – s43A-H ERA[84]The Tribunal considered each of the matters relied upon by the claimant as protected disclosures. The Tribunal was mindful that five elements require to be considered in determining whether each asserted disclosure amounted to a qualifying disclosure (as set out at paragraph 11 above). Unless all five conditions are satisfied, there will not be a qualifying disclosure.[85]The Tribunal’s conclusions in relation to each asserted disclosure, and whether it was a qualifying and protected disclosure, are set out below. They are addressed in chronological order (based on the dates in the Findings in Fact above), rather than the order stated in the list of issues. 85.1. Concerns raised by the claimant, in January 2024, in relation to fire alarm defects, identified after a planned evacuation exercise. The Tribunal’s findings in fact regarding this are set out in paragraph 40 above. The claimant reported to AL that, in the course of a planned fire evacuation, the fire alarm sounded, but other actions to ensure safety in the evacuation, which were meant to be triggered automatically, were not triggered. He subsequently reported that this had happened because the system had been placed in sleep mode. The Tribunal found that these statements had sufficient factual content and specificity capable of tending to show that the health and safety of any individual had been, was being, or was likely to be, endangered. The Tribunal found that the claimant believed that the information disclosed tended to show that this was the case. The Tribunal found that that belief was reasonably held. The Tribunal concluded that the claimant reasonably believed that the disclosure of information was made in the public interest: it related to the safety of the public within SJQ in the event of a fire. It was therefore a qualifying disclosure. Given that it was made to his employer, it was also a protected disclosure (the First Protected Disclosure). 85.2. An email sent from the claimant, in late January/early February 2024, locally and to the client, regarding high voltage system safety concerns highlighting urgent safety issues and the potential for severe damage and loss of electrical supply. The terms of the email relied upon by the claimant, sent on 29 January 2024, are set out at paragraph 57 above. The Tribunal found that information was disclosed in this email, namely that ‘an 11,000 vault fault of that nature could be catastrophic to the integrity of the substation and HV network with a high likelihood of substantial damage/fire’. The Tribunal found that these statements had sufficient factual content and specificity capable of tending to show that the health and safety of any individual had been, was being, or was likely to be, endangered. The Tribunal found that the claimant believed that the information disclosed tended to show that this was the case. The Tribunal found that that belief was reasonably held. The Tribunal concluded that the claimant reasonably believed that the disclosure of information was made in the public interest: it related to the faults in a substation and HV network at SJQ, which could result in a fire, endangering the public. It was therefore a qualifying disclosure. Given that it was made to his employer, it was also a protected disclosure (the Second Protected Disclosure). 85.3. An email sent to AL on 29 January 2024, in which the claimant raised concerns that SJQ had no procedures in place to ensure the safe operation and maintenance of the high voltage network. The terms of the email relied upon by the claimant are set out at paragraph 57 above. The Tribunal found that information was disclosed in this email, namely that ‘we don’t have a High Voltage Safe System of Work in place with no HV Safety Rules, no Control Documentation and no appointments of competent persons (AP/SAP/AE). Whilst Quartz (via ABM) take control of the system during their annual maintenance, their contract explicitly states that the system remains under SJQ’s operational control until they take temporary control through a Control Transfer Certificate but only for the duration of the maintenance. This leaves us exposed and we’d have difficulty demonstrating compliance with the Electricity at Work Regulations 1989 and associated statutory guidance.’ The Tribunal found that these statements had sufficient factual content and specificity capable of tending to show that the health and safety of any individual had been, was being, or was likely to be, endangered, or that the respondent was not complying with legal obligations. The Tribunal found that the claimant believed that the information disclosed tended to show that this was the case. The Tribunal found that that belief was reasonably held. The Tribunal concluded that the claimant reasonably believed that the disclosure of information was made in the public interest: it related to the procedures being in place to ensure safe operation of an HV network within SJQ. Failure to do so could put members of the public at risk. It was therefore a qualifying disclosure. Given that it was made to his employer, it was also a protected disclosure (the Third Protected Disclosure). 85.4. Concerns raised by the claimant, in January 2024, regarding the lack of accurate data regarding gas, electricity and water supply within SJQ. As stated in paragraph 42 above, the claimant raised this matter at the Asset Management Meeting on 17 January 2024, stating that there were electricity metering/consumption discrepancies and some water meters missing entirely or data in respect of existing water meters was missing, which may impact the data to be provided to Verco. The Tribunal concluded that that was not a qualifying disclosure. It did not contain sufficient factual content and specificity capable of tending to show a relevant failure, such as a failure or likely failure to comply with a legal obligation. It is simply a statement that there is information missing, which may impact the data which could be provided to Verco. It does not tend to show any relevant failure. The claimant also raised this matter with AL on 19 January 2024, as stated in paragraph 47 above. He indicated that the information that he had reported to Verco was inaccurate and what he was being asked to do could be construed/perceived as fraud. He provided further detail as to why he believed the data was inaccurate in his further email on 29 January 2024 (as set out in paragraph 61 above). The Tribunal accepted that the claimant’s statement that inaccurate data had been reported to Verco was a disclosure of information. He stated that what he was being asked to do could be construed/perceived as fraud. Fraud is a criminal offence. The Tribunal found that, even if the claimant did hold a belief that the information disclosed tended to show that the a criminal offence had been committed by the submission of inaccurate data, or that any other relevant failure had occurred, that belief was not reasonably held in circumstances where the submission of the data was accompanied by a clear caveat, included by the claimant both in advance and with the data which he submitted, that the data reported was inaccurate and would require to be revised, due to metering issue which had not yet been resolved. Given this, the Tribunal concluded that it was not a qualifying disclosure. Section 100(1)(a)[86]The Tribunal noted that there were two questions to addressed in determining whether the claimant was able to assert protection under s100(1)(a) ERA, namely: 86.1. Was the claimant was designated by the respondent to carry out activities in connection with preventing or reducing risks to health and safety at work? and 86.2. If so, did he carry out, or propose to carry out, any such activities?[87]In relation to the first question, the Tribunal concluded that the claimant was designated by the respondent to carry out activities in connection with preventing or reducing risks to health and safety at work. As set out in paragraph 24 above, the claimant was responsible for health and safety compliance at SJQ. While the respondent placed reliance on the case of Castano v London General Transport Services Ltd, the Tribunal concluded that the facts of that case were distinguishable from those in this claim: In Castano, the claimant was one of a number of bus drivers, each of whom had necessarily had health and safety as an aspect of their duties. Another individual had however been designated with responsibility for ensuring health and safety compliance. Mrs Justice Eady, in paragraph 27 of the Judgment in Castano, specifically envisaged that that individual falling within the scope of s100(1)(a), but not the bus drivers, stating: ‘In respect of the Claimant’s attempt to lay claim to the protection afforded to designated health and safety representatives, I therefore consider the ET was right to find that his case had no reasonable prospect of success: the Claimant had not been ‘designated’, as would be required for this protection; rather, as was common ground, another employee had been specifically designated to carry out that role. The fact that other employees – specifically, bus operators such as the Claimant – also had some health and safety obligations as part of their duties did not mean that they had been designated to carry out this far more specific role; they had not. Indeed, if the Claimant’s argument was right, all of the Respondent’s drivers holding PCV licences would have been designated for the purposes of sub-s (1)(a). They plainly were not. Subsection (1)(a) is directed towards the situation in which a particular employee has been designated, over and above their ordinary job duties, to carry out specific activities in connection with preventing or reducing risks (essentially, a health and safety officer’s function). Appointing an employee to do a job in which they must exercise some responsibility to take care of their own health and safety and that of others (which, per Von Goetz, could extend beyond other workers) is not the same thing.’ (Emphasis added).[88]Given the findings in fact at paragraph 24 above, the Tribunal concluded that the claimant was (in effect, if not in name) the health and safety officer at SJQ. He had principal and overall responsibility for ensuring health and safety compliance at SJQ, and was the person designated by the respondent to carry out those activities.[89]Having reached that conclusion, the Tribunal then considered whether the claimant had carried out (or proposed to carry out) any such activities. The Tribunal concluded that he had. The Tribunal’s conclusions regarding each of the health and safety concerns raised by the claimant, which are also relied upon as protected disclosures, are set out in paragraphs 85.1-85.3 above. The Tribunal concluded that each of these constituted activities in connection with preventing or reducing risks to health and safety at work. In addition, the Tribunal’s findings in fact in relation to other health and safety concerns raised by the claimant, as asserted in paragraphs14.1 and14.2 above, are set out in paragraphs 28 and 31 above. The Tribunal concluded that each of these constituted activities in connection with preventing or reducing risks to health and safety at work. Reason for Dismissal[90]The Tribunal then considered whether the claimant had established, on the balance of probabilities, that the reason (or principal reason if more than one) was an automatically unfair reason, namely: 90.1. That he made a protected disclosure (s103A ERA); or 90.2. That, having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, he carried out (or proposed to carry out) any such activities (s100(1)(a) ERA).[91]In considering this, the Tribunal was mindful that the principal reason is the reason that operated on the employer’s mind at the time of the dismissal (Abernethy v Mott, Hay and Anderson 1974 ICR 323, CA) and that, if the fact that the employee made a protected disclosure or carried out activities under s100(1)(a) influenced, but was not the sole or principal reason for dismissal, then the employee’s claim under s103A/100 ERA will not be made out (Fecitt and ors v NHS Manchester (Public Concern at Work intervening)).[92]The Tribunal considered whether the protected disclosures established were the sole or principal reason that operated on the respondent’s mind at the time of the dismissal. The Tribunal concluded that they were not, for the following reasons: 92.1. The First Protected Disclosure. As set out in paragraph 40, AL and LJH’s reaction to the disclosure of this information was simply to discuss and agree with the claimant that he would take steps to obtain quotes to repair the system and resolve the issues as soon as possible. They understood that serious defects had been identified, and these required to be addressed urgently. That fell within the claimant’s remit, so it was agreed that he would take this forward. The fact that the claimant brought these issues to their attention was not viewed negatively: it was the responsibility of the TSD to do so, and then to ensure the resolution the issue identified. The Tribunal concluded that it did not in any way influence the decision to dismiss the claimant, so could not amount to the sole or principal reason for dismissal. 92.2. The Second Protected Disclosure. AL was already well aware of this issue and the seriousness of it. She had, as set out in paragraph 55, been called the morning after the HV shut down regarding the issues which had been identified during the HV shutdown. The issues were accordingly first reported to her, in the claimant’s absence on holiday. She understood the seriousness of the issues and urgently arranged and held a meeting at 9am that day, with other senior stakeholders, to discuss the issues identified and agree how these would be addressed and escalated. Discussions then continued regarding these matters over the remainder of the week. The claimant’s email to her, when he returned to work almost a week later, that the issues were serious and the implications of them, was not new information. The Tribunal concluded that it did not in any way influence the decision to dismiss the claimant, so could not amount to the sole or principal reason for dismissal. 92.3. The Third Protected Disclosure. Whilst this information was new to AL, it is clear from her response (paragraph 58), the fact that the claimant raised these concerns was not viewed negatively. She simply saw this as something that the claimant would now take steps to resolve. He subsequently confirmed that he would and took steps to do so. That was the end of the matter. The Tribunal concluded that it did not in any way influence the decision to dismiss the claimant, so could not amount to the sole or principal reason for dismissal.[93]The Tribunal then considered whether the other health and safety concerns raised by the claimant were the sole or principal reason that operated on the respondent’s mind at the time of the dismissal. The Tribunal concluded that they were not, for the following reasons: 93.1. The concerns regarding scaffolding were raised by the claimant in September 2023. Those concerns were discussed at an SLT meeting and the SLT’s collective concerns were then reported to the client by the Operations Director. It is clear from this that the SLT did not have any issue with the claimant raising this matter. Indeed, they shared the claimant’s concerns and, collectively, reported these to their client. A decision was subsequently taken that the claimant should receive a pay rise and bonus, and his month 1 review, conducted shortly thereafter, was positive. 93.2. The claimant had been asked to investigate the Eyebolts shortly after he commenced employment, as the respondent knew this was a potential issue (see paragraph 29 & 31 above). He produced a report in relation to this, as he was asked to do. Far from seeing this as a potential problem, or viewing this negatively, as stated in paragraph 34 above, the claimant’s work in relation to this was subsequently commended in his month 3 probationary review, where it was stated that his ‘excellent contribution and expertise in the eyebolts issue’ which she stated had been ‘recognised at all levels’[94]Rather, the Tribunal accepted that the sole reason for the claimant’s dismissal was his performance in his role during his probationary period. Significant evidence was led by the respondent in relation to this, which was accepted by the Tribunal. In summary, the Tribunal concluded that AL had significant concerns relation to the claimant’s performance. Those concerns were first expressed by AL on 3 January 2024 (see paragraph 37) prior to the established protected disclosures. Those concerns intensified with the claimant’s failure to provide a report in advance of the Asset Management Meeting (paragraph 41) and his failure to properly prepare for that meeting (paragraph 43), the concerns AL had in advance of the meeting on 19 January 2024 (paragraph 46), the fact that the claimant did not ensure a handover of his work prior to his holiday (paragraphs 46 & 48), the fact that he did not inform Verco of the fact that the data had been uploaded onto Carbon Desktop (paragraph 54) and the fact that he was aware that an HV shutdown was scheduled for a time that he was not present (paragraph 55). In response to his request that she provide examples of her concerns, AL prepared a note of these, as detailed at paragraph 53. Her attempts to discuss these matters with the claimant, at the meeting on 30 January 2024, were then unsuccessful. As a result of all of these issues, for the reasons set out in paragraph 65, AL concluded that the claimant’s employment should be terminated. Those were, the Tribunal concluded, the reasons for the claimant’s dismissal: not protected disclosures, health and safety concerns or (whilst not found to be a protected disclosure) concerns raised by the claimant regarding the lack of accurate utilities data and the submission of that to Verco.[95]Whilst the claimant repeatedly urged the Tribunal to view the lack of procedure as significant, the Tribunal concluded that this was not the case. The Contract and Handbook expressly stated that the claimant’s employment was subject to a 6 month probationary period, in which his performance and suitability for the role would be monitored. It stated that his employment may be brought to an end at any time during, or at the end of, the probationary period, on notice. The Handbook confirmed that probation review meetings could be conducted without prior notice and that there was no right of appeal against any probationary decisions taken. The respondent’s actions were accordingly in line with these documents.
Conclusions
[96]For these reasons the Tribunal concluded that the claimant’s complaints under sections 100(1)(a) and 103A ERA do not succeed and are dismissed.