Mr D Robertson v Paisley Secretarial Services Ltd T/a Allstaff and MBM Print SCS Ltd: 8001935/2024
JUDGMENT
[1]The claimant did not make protected disclosures and his complaint of detriment on the grounds of making protected disclosures under section 47B of the Employment Rights Act 1996 therefore is unsuccessful and is dismissed;[2]The complaint of detriment under section 45A(1) of the Act cannot be determined at this hearing and will proceed to a full hearing.REASONS
Relevant law
[1]This was an open preliminary hearing to determine whether the claimant had made certain protected disclosures or carried out other protected acts, discussed in further detail below. The claimant attended in person by video and the first and second respondent were represented by Ms Ledi and Ms Braunholtz respectively, both solicitors.[2]The parties prepared a joint bundle which was referred to in the course of the hearing. Numbers in square brackets below correspond to page numbers in the bundle.[3]The claimant was content largely for his position on today’s preliminary issues to be taken from existing documents and correspondence. I confirmed to him at the outset of the hearing that I would benefit from him clarifying some aspects of his claim and he agreed to giving evidence under oath. Each of the respondent’s solicitors took the opportunity to ask questions in crossexamination. This was helpful in understanding the basis of his claims. No witnesses were led for either respondent.[4]I indicated at the end of the hearing that I would deliberate and issue a judgment in writing. Legal issues for determination 1. This hearing had to determine two issues:a. Whether the claimant made any protected disclosures under section 43B of the Employment Rights Act 1996 (the ‘Act’). The claimant alleged he had made three such disclosures; andb. Whether the claimant did anything qualifying as a protected act under section 45A(1) of the Act. The claimant argued that he had refused or proposed to refuse to comply with the second respondent's disapplication of the weekly working time limit under subsection (a), and/or refused or proposed to refuse to forego that same right under subsection (b), and/or alleged that his employer had infringed such a right under subsection (f). Findings in fact Based on the evidence provided the following background facts were established.[1]The claimant responded to an advertisement placed by the first respondent seeking workers to be engaged at the premises of the second respondent, which is a printing company [125-127] (referred to below as ‘the assignment’). The claimant had experience in aspects of printing. The first respondent was acting as an employment business in this scenario and the claimant was a temporary worker. The second respondent was the end user client.[2]The claimant completed a registration form in relation to the assignment on 14 October 2024. He indicated that he did not wish to opt out of the limit of 48 working hours per week under the Working Time Regulations (the ‘Regulations’). He said he could work a maximum of one day shift per weekday, of no longer than 7.5 hours’ duration.[3]The claimant entered into a contract with the first respondent in relation to the assignment. He had no contract with the second respondent. The first respondent was his ‘employer’ for the purposes of the legal complaints he is making and the second respondent was not.[4]In the evening of 14 October 2024 the claimant exchanged emails with Beth Rae of the first respondent, who was overseeing the provision of staff for the assignment. She asked the claimant if he could work some hours the following day after the planned induction in the morning, stopping around 2.30pm. The claimant agreed.[5]On arriving at the premises the following morning for his first day of work the claimant had a brief interaction with Ms Rae in person before taking part in an abbreviated induction and then beginning work.[6]When working on the morning of 15 October 2024 the claimant spoke with a print assistant named Dominic Zawan, an employee of the second respondent. He had started as an agency worker before going to work for the second respondent directly. Print assistant was a junior role within the employee structure.[7]The claimant worked until around 2.30pm on that day, as he had agreed with Ms Rae. He confirmed to a Mr Gordon Nock of the first respondent later that day by email that he had finished. He said he had been trained up on using a printer and ‘so far so good’. He asked if agency staff received an enhanced rate for overtime pay. Mr Nock replied that overtime was voluntary and there would be no enhanced rate within the first 12 weeks of the assignment [118- 120].[8]The claimant then emailed Ms Rae to say that as there was no higher rate of pay for overtime, he wished to work only 7.5-hour shifts. She replied to say that if he wished to carry on working in the print department ‘we would need you to be flexible to help out with 12 hr shifts occasionally’. He then said ‘Can’t do 12 hrs’ and Ms Rae replied to say ‘please stick to doing early shifts’. The claimant confirmed ‘Will do’ [121-124]. Discussion and decision Relevant law 1. Workers are protected under the act from suffering detrimental treatment ‘on the ground that’ they have made a protected disclosure. 2. A protected disclosure must first be a qualifying disclosure under section 43B(1) which stipulates that the disclosure must be a ‘disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show’ that one of the listed scenarios exists. One of those prescribe scenarios is that that ‘a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject’. 3. If a disclosure qualifies by meeting the criteria in section 43B(1) then it will become protected if it is made to the correct person, as explained in sections 43C to H. This includes disclosure by a worker to their employer and also to another person whose conduct the worker reasonably believes has caused the failure in question or who has responsibility for it. 4. The various aspects of section 43B(1) have been considered in a number of previous cases considered by the Employment Appeal Tribunal (‘EAT’) or higher courts, which are binding on employment tribunals. 5. The EAT confirmed in Williams v Brown UKEAT/0044/19 that section 43B(1) requires there to be(i) a disclosure of information,(ii) the worker’s belief that the disclosure is in the public interest,(iii) such belief being reasonably held,(iv) such belief being that one of the scenarios in sub-paragraphs (a) to (f) of section 43B(1) of the Act exists, and(v) that belief also being reasonably held. 6. The requirement to disclose ‘information’ is important. That can be done verbally or in writing, but must involve providing sufficient factual details of the relevant issue and not merely voicing general unhappiness or concern – Cavendish Munro Professional Risks Management Ltd v Geduld UKEAT/0195/09. This can, for example, be the difference between a worker reporting the details of a particular event on a given date which is said to pose a risk to health and safety including what happened, when, and who was involved, and merely saying they believe their workplace is unsafe. The former is likely to qualify and the latter may not. 7. Regulation 4 of the Regulations prescribes that a worker’s weekly number of working hours should not exceed 48 in any reference period, unless they agree otherwise in writing. The reference period by default is any 17-week continuous period, meaning that the limit applies to the average weekly working time within that period and not the number of hours in each individual week. 8. Section 45A of the Act protects workers against the infringement of certain rights under the Regulations. If a worker suffers a detriment on the grounds that they have asserted their rights in various ways they may make a claim to an employment tribunal and receive a declaration to that effect and compensation. Protected disclosures – section 43B of the Act[1]The claimant clarified by way of further particulars on or around 6 February 2025 [86-94] that he believed he had made three protected disclosures. Those are considered in turn. First alleged protected disclosure[2]This was said to have been made to Ms Rae of the first respondent around 9.34am on 15 October 2023. He said that as she was walking him to where he would begin working she asked him if he was available to work 12-hour shifts. He said that he had already confirmed in the application form the evening before that he would not opt out of the 48-hour weekly limit and would not work overtime at the basic rate of pay. He recorded that Ms Rae then said that an enhanced rate was available after three months of working and the first respondent needed the claimant to be flexible. He replied to her that she should have advertised for workers seeking 12-hour shifts rather than 7-hour shifts as she had done, and that ‘forcing people to opt out is illegal’.[3]Therefore, the claimant’s account of this exchange involves him saying four things –(i) that he had already said he would not opt out of the weekly hours limit,(ii) that he would not work overtime for basic pay,(iii) that the first respondent should have advertised 12-hour shifts and (v) that forcing people to opt out of the weekly hours limit is illegal.[4]None of those things said fell within the scope of section 43B(1) by meeting all of the criteria sequentially itemised in Williams. None of them conveyed a reasonable belief held by the claimant that a breach of a legal obligation had occurred, was occurring at the time, or would likely occur in the future. In evidence he clarified that the belief he held relating to breach of a legal obligation was about the second respondent pressuring workers into working 12-hour shifts rather than shorter shifts. Even were that so, in itself it would not have entailed a breach of the legal obligation he had in mind, namely the weekly limit protected by Regulation 4, because it is possible to work 12-hour shifts and still be within the 48-hour per week limit in any given week, and because weekly hours are calculated over a reference period of 17 weeks and not in each week separately. The claimant’s assertion of what Ms Rae said at this time is consistent with the email she sent him later that day, when she told him she would need him to work 12-hour shifts ‘occasionally’. Doing so would not be in breach of his right under Regulation 4. If the claimant held the belief that it did, he did not do so reasonably when objectively assessed as the law requires. Second alleged protected disclosure[5]The second alleged protected disclosure occurred slightly later on the morning of 15 October 2024. This was allegedly made to Mr Zawan, the second respondent’s employee, as the claimant was working alongside him. He says that Mr Zawan told him that since being engaged directly by the second respondent he worked five or six shifts of 12 hours’ duration per week and that he felt he had to do so. The claimant alleges that in the course of this conversation he said he had only applied for seven and a half hour shifts, and would not work overtime for the basic rate of pay. He repeated the comment he had made to Ms Rae to the effect that if the second respondent was looking for agency workers to complete 12-hour shifts that is what they should have advertised, and they should have added that they expect workers to opt out of the limit set by regulation 4. He added, “But they won’t as it’s illegal and they know it”. He went on to say that the agency cannot do whatever they liked, and there were employment laws in this country. If they chose to lie and mislead workers, or coerce them into waiving their rights and got caught they would be in big trouble.[6]The claimant said he made similar comments to Mr Zawan on the following two days of the assignment.[7]As with the first alleged disclosure, the second was based on the belief that the second respondent was already breaching regulation 4 by pressuring or even forcing workers to work 12-hour shifts. For the same reason, that belief was not found to have been reasonably held. The only additional factor was that Mr Zawan suggested he was required to work between 60 and 72 hours per week on a longer basis. Even if that involved the claimant reasonably believing that the second respondent had breached Regulation 4 over a period of 17 or more weeks, the claimant did not disclose information about it to Mr Zawan or anyone else, but instead spoke of the hypothetical consequences of unlawful actions.[8]More fundamentally, anything said to Mr Zawan which could have amounted to a ‘qualifying’ disclosure under section 43B(1) of the Act could not become protected because Mr Zawan did not have the required status. In particular he was not the claimant’s employer because he was not engaged by the first respondent and had no authority to represent it, and in any event was too junior even had the second respondent fallen within that definition. Nor was he a ‘responsible person’ within section 43C. For completeness, there was no evidence of section 43G applying - on his own evidence the claimant could not have reasonably believed he would suffer a detriment had he made the disclosure to his employer, because he believed that he had done just that earlier the same day. Although that would potentially fall within section 43G(2)(c) of the Act, it was not reasonable for him to make the disclosure to Mr Zawan as he could not realistically expect Mr Zawan as a junior employee to do anything about it. Third alleged protected disclosure[9]The third alleged disclosure was said to have been contained in the claimant’s emails to Ms Rae and Mr Nock on the afternoon of 15 October 2024.[10]The claimant said that Ms Rae told him he would get an enhanced pay rate – time and a half – ‘after I worked 48 hours’. He believed she was lying to him in saying this, as the rate did not increase in this way. He believes she did so to get him to work longer shifts than he had said he would.[11]The claimant’s email exchanges with Ms Rae and Mr Nock were produced. Nowhere in any email from Ms Rae is it stated that the claimant would receive enhanced pay after working 48 hours per week. She told him nothing about pay rates.[12]The claimant does not set out clearly in his particulars what disclosure he made as part of this exchange. The emails themselves do not reveal anything which would meet the criteria of a qualifying disclosure. They are typically cordial and innocuous exchanges between colleagues.[13]For completeness, the claimant refers in his particulars to a later grievance, but says this was submitted after (and about) the detrimental act he complains of, namely termination of the assignment. Consequently, it is not considered to be something the claimant relies on as a protected disclosure in this claim.[14]In conclusion, the claimant did not make any protected disclosures. Alleged protected acts under section 45A of the Act[15]Section 45A only protects a worker against detrimental acts carried out by ‘his employer’ and no other party.[16]For a worker such as the claimant, the term ‘employer’ is to be read as ‘the person by whom the … worker is (or where the employment has ceased, was) employed.’- section 230(4) of the Act. ‘Employed’ is restricted to the party for whom the worker works or worked under a contract. In the claimant’s case therefore his employer was the first respondent only.[17]The claimant’s claim form and his further particulars both state that the detriment complained of is the termination of the assignment. The claimant accepts that the decision to do so was made by the second respondent but implemented by the first. As such there could be an argument that he was subjected to a detriment by his employer because it ended the assignment, even if it was directed to do so.[18]It was not possible within the scope of this hearing to determine one way or the other whether the termination of the assignment was on the ground that the claimant did something falling within section 45A(1). His evidence suggested that subsections (a), (b) or (f) could be in play. I noted particularly that regarding (f) – an allegation that the employer had infringed a right contained in the Regulations – that it is irrelevant whether the right was in fact infringed so long as the claimant made the allegation in good faith. Further evidence will need to be heard on what was or were the true reason(s) for the termination of the assignment. The second respondent asserts that it was because of unrelated issues to do with the claimant’s compliance with safety rules but no evidence, whether by witnesses or documents, was provided.[19]Accordingly this claim will need to be determined at a full hearing.[20]As there was a discussion at the end of this hearing about case management, a hearing can be scheduled. Provisional hearing dates of 15 to 17 September 2025 were identified as suitable. Given the reduced scope of the hearing as a result of the above findings, the hearing will be listed for two days – 15 and 16 September 2025 and any party believing that this is insufficient will have seven days from the issuing of this judgment to make submissions on the point. The hearing will be in person before a judge sitting alone and a separate hearing notice will be issued. The parties should co-operate to prepare a joint hearing bundle which should be provided to the tribunal in hard copy and electronic format no later than two working days before the hearing begins. I noted that the claimant requested that his own documents be kept in a separate section of the joint bundle for his ease of reference, and that the respondents had no issue with this.