Mr M Sfeir v Margiotta Ltd and D Broadbent: 8002112/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8002112/2024

Between

Mr M SfeirClaimant

Margiotta Ltd and D BroadbentRespondent

Before

Employment Judge J G d’Inverno

Mr Weir, Director for respondent

Date 27 January 2026

JUDGMENT

The judgment of the Employment Tribunal is:- (First) That the claimant’s complaint of Automatic Unfair Dismissal in terms of section 103A of the Employment Rights Act 1996 fails, and is dismissed. ETZ4(WR) (Second) That the claimant’s complaints of having been subjected to detriments, other than dismissal, in terms of section 47B of the Employment Rights Act 1996 fail, and are dismissed.

REASONS

[1]This case called for Final Hearing, with a time allocation of 4 days, “In Person” at Edinburgh, on 10 November 2025, all further to the Case Management Orders of Judge Sutherland, issued on 23 May at the Closed Preliminary Hearing which proceeded before her on that date, and which were sent to parties on 26 May 2025, (“Judge Sutherland’s Orders”).

[2]The claimant appeared In Person. The First Named Respondent, his former employer, was represented by Mr Iain Wells, its Finance Director. The Second Named Respondent, Mr David Broadbent, the First Respondent’s Operations Director, appeared In Person.

[3]As at the time of commencement of the Final Hearing, aspects of Judge Sutherland’s Case Management Orders of 23 May relating to;(a) specification of the protected disclosures relied upon and the asserted causally connected detriments,

(b) to the documents bundles, and, in respect of,

(c) agreeing a timetable for the hearing of witnesses’ oral evidence; had not been complied with. Consequently considerable time was taken up at the commencement of the hearing dealing with those matters.

[4]The Tribunal sat late on the listed first, and fourth days of hearing and took an abridged luncheon adjournment on the third day of hearing, thus making up the lost time.

[5]Notwithstanding the above measures, it was necessary to extend the Hearing by a further day in order to conclude the evidence and hear submissions.

[6]In the course of Case Management Discussion conducted at the outset of the hearing the Tribunal identified, all parties confirmed and the Tribunal recorded, the following as being the complaints presented:-(a) A complaint of Automatic Unfair Dismissal in terms of section 103A of the Employment Rights Act 1996 (“ERA”), directed against the First Named Respondent only; and

(b) Complaints, directed against both the First and Second Named Respondents, in terms of section 47B of the ERA, of having suffered detriment, other than dismissal, on the ground of having made one or more asserted protected disclosures in terms of section 43A, 43B and 43C of the ERA, Alleged Protected Disclosures and Asserted Detriments

[7]In terms of Order 2 of 23 May 2025, and paragraphs 22, 23 and 24 of the Note appended to those Orders, Judge Sutherland recorded that “The claim is in a narrative style and it is difficult to identify the legal complaints relied upon”. She ordered the claimant to provide further written details of “each and every legal complaint being made” and went on to specify that if a complaint was not so specified it would be inferred that it was not being relied upon. Judge Sutherland provided the parties with a form of table to be used for that purpose which she populated with such interim detail as was, at that time, capable of extraction from the narrative Particulars of Claim.

[8]Her Orders required that the claimant provide to the respondent and to the Tribunal fully completed tables within 3 weeks of the date of the Order and, that within a further 3 weeks of receipt of the further written details of complaints, the respondent provide their response, including any objection to what they considered to be an Application to amend which was opposed.

[9]The ordered requirement included the specification by the claimant of:-(a) each of the alleged protected disclosures relied upon by him on the one hand

(b) each of the detriments, other than dismissal, which he contended he had been subjected to by reason of making a particular disclosure; and,

(c) specification of the protected disclosure in consequence of which he asserts he was automatically unfairly dismissed in terms of section 103A of the ERA.

[10]As at the commencement of the Final Hearing on 10 November 2025 the claimant had failed to comply with the requirements of those Orders and had thus hampered the respondent’s ability to comply by way of response.

[11]Following time spent in case management at the outset of the hearing the claimant advised, the Tribunal recorded and the parties each confirmed prior to the commencement of the evidential hearing, that the alleged protected disclosures on the one hand and the asserted correlative and alleged causally connected detriments of which the claimant sought to give notice of relying, on the other hand, were;

[12]Asserted Protected Disclosures relied upon 3rd of April 2024, made orally to David Broadbent, the 2nd respondent A “frozen food being delivered in van that’s refrigeration unit not functioning”, relevant wrongdoing and public interest given notice of “danger to the health and safety of customers” 15th of April 2024, said to be made orally to Ashley McLaren, “frozen B food being delivered in van that’s refrigeration unit was not functioning”; relevant wrongdoing and public interest, “danger to health and safety of customers” 23rd May 2024, allegedly made orally to Ashley McLaren, “frozen food C being delivered in van that’s refrigeration unit was not reaching the correct temperatures”; wrongdoing and public interest relied upon, “danger to health and safety to customers” 27th of June 2024 WhatsApp message exchange; D “MS (the Claimant) – Ashley … do y want me to collect the food waste and black bin bags from Aberlady/Gullane this morning? I only ask because I have the Yester Farm stuff to collect on the same run. Ta. AM (Ashley McLaren) – please collect the rubbish. Try and keep a space at the back of your van for Yester. MS – okay … will do. I’ll keep the rubbish/waste towards the front of the van.” – “raised issue of carrying waste with fresh products.” – danger to health and safety of customers. E 10th July 2024, allegedly made orally to David Broadbent (the 2nd respondent), – “raised above issues regarding unsafe food delivery and that nothing was being done” – danger to health and safety of customers. F 23rd April 2024, (added by the claimant in the course of the hearing), – orally to Ashley McLaren – “MS (the claimant) Hi Ashley, I was thinking, well you know how, we can’t do it now because the Peugeot’s freezer unit’s not working, but could I potentially … on that run, take Dundas’s freeze’s stuff and take the gelato to Gullane and Aberlady and come back (with) those I’ve got to do?” … and … “MS (the claimant) – well, I’ll wrap these two just now [in the freezer], but it makes no odds because the freezer in the van doe’snt work anyway. AM (Ashley McLaren) since when? MS – I’ve told you about it the last couple of weeks. I told you that the pipe’s totally … its been weeks it’s not been working. AM – I, but no one’s actually said it doesn’t come down to temperature. MS – no, I said it’s not working at all. The pipe has totally unravelled …. It’s not remotely chilled. So, it kind of doe’snt make much difference for this but, for timewise … it could have been wrapped …” relevant wrongdoing in public interest danger to health and safety of customers.

[13]The Asserted Detriments given notice of as being relied upon were:- 1(a) On an unspecified date some time in April 2024, perpetrator AM (Ashley McLaren) – “ignored me when I tried to speak to her at work” [Judge Sutherland’s direction – claimant to provide further specification or delete this complaint] 23rd of April 2024, perpetrator Ashley McLaren – “Ashley McLaren 1(b) had been quite civil when I first mentioned the broken pipe on the Peugeot van refrigeration unit to her. She had said that she was arranging for an engineer to come and fix the issue. Later on, she became quite rude and aggressive towards me after I made a further enquiry over the refrigeration unit’s repair on the 23rd of April 2024. She shouted across at me, “I’ve already told you that an engineer is coming out” – “on the same day AM was upset because some frozen pallets, due to be loaded in the van, were being wrapped on the loading bay instead of in the main freezer of the warehouse. Ashley McLaren cited the high outside temperatures. I agreed with her. At that point she turned away and walked off without saying anything more.” 2(a) End February/March 2024; perpetrator AM – “Ashley McLaren seemed irritated with me when I told her about Waitrose chilled goods being scheduled for delivery after sitting in a non refrigerated van HW20 KFT. She told me that they didn’t have room in the other vans and walked off.” 29 April/1st May 2024; perpetrator Ashley McLaren – “Ashley 2(b) McLaren demanded that I sign declarations [Driver’s Group Read and Sign Notice issued to all drivers] immediately, whilst other drivers were not harangued in an equal manner.” 10th July 2024 perpetrator AM; – “Ashley McLaren got angry with 2(c) me for declining her offer to take my half hour break early.” 3 End February/March; perpetrator DB (David Broadbent, 2nd respondent) – “David Broadbent ignored me when I tried to speak to him at work. On another occasion he informed me that no overtime would be paid at weekends to drivers, regardless of how long they took to do their shift.” [Judge Sutherland’s direction – claimant to provide further specification or delete this complaint] 05th March; Perpetrator David Broadbent – “on 5th March I sent David Broadbent a text …. he did not answer my text …” [alleged detriment 4 was departed from by the claimant and confirmed as no longer relied upon, in the course of evidence, upon his acceptance that David Broadbent had in fact answered his text] 3rd of April; perpetrator David Broadbent – “on 3rd April when I 5(a) made a disclosure to David Broadbent, he answered me in a harsh manner saying – “it’s nothing to do with you”. 5(b) “Later in that conversation I asked him if I was to deliver the goods for 3 shops … David Broadbent answered me, gruffly, saying ‘do whatever is on your run sheet’ [later the claimant accepted in evidence, by reference to the transcript of a clandestine recording which he had made, that the response had simply been ‘just on your run sheet’. 10th July 2024; perpetrator David Broadbent – “in our meeting of 5(c) 10th July 2024, which culminated in dismissal, David Broadbent brought up the subject of me asking too many questions of him.” 29th April 2024; perpetrators AM (Ashley McLaren) and David Broadbent and Sheree King – “accused me of being too slow with some of my deliveries”. 29th April and 1st May 2024; perpetrators Ashley McLaren, David Broadbent and Sheree King “asked me to sign document noting disciplinary action would be taken if issues happened again” [to countersign a Performance Improvement Plan (page 20 of the respondent’s bundle) at the conclusion of a Performance Improvement Meeting with the claimant on 29th April 2024]. 10th July 2024; perpetrators David Broadbent and Sheree King – “called into a meeting without prior notice and without opportunity to be accompanied and issues raised with me asking too many questions” 14th July 2024; perpetrator Sheree King – “refused to respond to or progress my appeal [against dismissal]”

[14]Detriments which the claimant offered to prove he was subjected to on the ground that he had made a particular protected disclosure (asserted causal connection) Alleged Detriment subjected to Said to be done on the ground that the claimant made the following protected disclosure/disclosures Asserted protected disclosure A, 3rd April Alleged detriments 4, 5(a), 5(b), 5(c), 6, 7, 8 and 9 2024 Alleged detriments 1(a), 2(b), 2(c), 4, Asserted protected disclosure B, 15th April 2024 5(c), 6, 7, 8, and 9 Alleged detriments 1(a), 2(b), 5(c), 6, Asserted protected disclosure C, 23rd May 2024 7, 8, 9 Alleged detriments 5(c), 8 and 9 Asserted protected disclosure D, 27th June 2024 Alleged detriments 5(c), 8 and 9 Asserted protected disclosure E, 10th July 2024 Alleged detriments 1(a), 1(b), 2(b), Asserted protected disclosure F, 23rd April 2024 2(c), 4, 5(c), 6, 7, 8 and 9

[15]The Tribunal records that in terms of her Orders of 23 May, Judge Sutherland had directed that the specification to be provided was to include the following information in respect of each protected disclosure:(a) The paragraph number in the paper apart to the claim (PA) or in the Further Particulars (FP)

(b) The date of disclosure

(d) The name of the recipient of the disclosure

(e) The information disclosed

(f) The relevant wrongdoing (criminal offence, legal obligation, miscarriage of justice, health and safety, environment or concealment thereof)

(g) The public interest

[16]The Tribunal noted and records that in relation to a number of the alleged disclosures relied upon, the specification provided was not compliant with that directed by Judge Sutherland such as to give fair notice to the respondents of the case which they had to meet, and the potential evidential consequences of the same. The claimant, in response confirmed, and the Tribunal records, that such specification as was set out by him represented the high point of what he was prepared/was able to provide.

[17]For the avoidance of doubt alleged detriment number 4 was departed from by the claimant and confirmed by him as not relied upon, in the course of both evidence and submission.

[18]The Issues That the issues requiring investigation and determination by the Tribunal were:-

[19](First) Which of the asserted disclosures, of which notice is given as recorded above, did the claimant make to the respondents.

[20](Second) Which, if any, of such disclosures made were qualifying and protected disclosures made in terms of sections 43A, 43B and 43C of the Employment Rights Act 1996 (“ERA”).

[21](Third) What was the reason, or if more than one the principal reason for the 1st respondent’s admitted dismissal of the claimant and, in particular, was the reason for the respondents’ dismissal of the claimant on 10 July 2024 that the claimant had made one or more of the asserted protected disclosures; and thus, was the claimant Automatically Unfairly Dismissed in terms of section 103A of the

[22](Fourth) Which of the matters given notice of by the claimant as constituting asserted detriments does the Tribunal find occurred and also constituted detriments, (“relevant detriments”).

[23](Fifth) Which of the asserted relevant detriments was the claimant subjected to by the First and or the Second Respondent contrary to the provisions of section 47B of the ERA.

[24](Sixth) Which, if any, of any relevant detriments as were suffered by the claimant was he subjected to on the ground that he had made one or more of the protected disclosures which he is found to have made.

[25](Seventh) Has the claimant established between each of the relevant detriments to which it is found he was subjected to by the respondent’s on the one hand, and one or more of the established protected disclosures on the other hand, the causal connection required by section 47B of the ERA?

[26](Eighth) Has the claimant discharged the burden of proof necessary to the establishment of his complaints respectively under sections 103A and section 47B of the ERA.

[27](Ninth) To what remedies is the claimant entitled, in the event of one or more of his complaints succeeding.

[28]Each of the parties, in turn, confirmed to the Tribunal, at the outset of the Hearing, that the issues recorded above were the whole issues requiring investigation and determination by the Tribunal at hearing.

[29]The Employment Judge explained to parties the purpose, scope, process and order of;(a) the giving of evidence in chief, including the meaning of “leading questions” and the necessity of avoiding putting such questions to witnesses during examination in chief,

(b) of cross examination and re-examination; and,

[30]The Employment Judge referred parties to the statutory provisions founded upon, drawing their attention to the essential matters of fact set out in each provision which required to be established were the complaints to succeed.

[31]The Employment Judge explained to parties where the burden of proof lay in relation to each of those issues of fact and explained the meaning of the “balance of probabilities”, being the applicable standard of proof.

[32]Each of the parties confirmed their understanding of the matters explained.

[33]The Judge commended to parties the focusing of the oral evidence to be given, and to be adduced from witnesses, upon the matters relevant and necessary to the determination of the agreed confirmed List of Issues. Sources of Documentary and Oral Evidence

[34]Each party lodged a bundle of documents; in the case of the claimant supplemented by an additional bundle lodged on the morning of the hearing.

[35]The Tribunal was referred to some of the documents lodged by parties in the course of evidence and submission.

[36]A number of documents purporting to be written witness statements had been included in documents bundles. The instant case was one in which no Order exceptionally authorising the use of written witness statements had been made. Accordingly, for the avoidance of doubt, the Tribunal made clear to parties that both the evidence in chief and in cross examination/re-examination, would be taken orally from witnesses on oath or affirmation in accordance with the best evidence rule, and that no cognisance would be taken of the content of any written witness statements which had been included in the bundle.

[37]The Tribunal heard evidence from the following witnesses:- For the claimant(a) from the claimant Mr Mark Sfeir

(b) from Manuel Peres Santos a former driver/mechanic work colleague who had been a fellow employee of the 1st Respondents until xxxx and; For the First, and Second Named Respondents

(d) Sheree King, HR Officer

(e) Ashley McLaren, the claimant’s Line Manager; and,

(f) from David Broadbent (the Second Named Respondent) and Dismissing Officer

[38]All witnesses gave evidence on oath or affirmation. Findings in Fact

[39]On the documentary and oral evidence presented, the Tribunal made the following essential Findings in Fact, restricted to those relevant and necessary to the determination of the issues before it. The claimant was employed by the 1st respondent in the capacity of a Delivery 40. Driver from 23 August 2023 up to and including 17 July 2024.

[41]The Effective Date of Termination of the claimant’s employment was 17 July 2024 being the date of expiry one week’s notice of dismissal, given to him orally on 10 July 2024, by David Broadbent the 1st respondent’s Operations Director, in the course of a meeting relating to the claimant’s conduct.

[42]At the time of commencing his employment, the claimant signed a copy of the 1st respondent’s “House Rules”, confirming that he had read and understood the same. The 1st respondent’s House Rules include rules regarding the transport of 43. refrigerated goods, requiring drivers to refuse to transport such goods or, if already in transit to return any such loads, where refrigerated van temperatures exceed the house rule parameters of 0.5 to 8◦Celsius.

[44]On 29 April 2024, the claimant was called into the office of David Broadbent, the 1st respondent’s Operational Director and the Second Respondent, in the presence of Sheree King the 1st respondent’s HR Officer, to discuss complaints received from Store Managers to the effect that the claimant was slow in making deliveries and spent too much time chatting to staff once he had made deliveries and, in that regard, to be issued with a Performance Improvement Plan, (“PIP”).

[45]Copies of both the hand written contemporaneously completed and of the typed up copy PIP are produced. A copy of the Performance Improvement Plan issued to the claimant on 29 April 2024 is produced at page 20 of the respondent’s bundle and is in the following terms:- MARGIOTTA ●FOOD & WINE PERFORMANCE IMPROVEMENT PLAN DATE STORE/SITE 29th April 2024 Warehouse TEAM MEMBER NAME Mark Sfeir PERFORMANCE CONCERN Time Management – Runs are designed to help with the heavy flow of traffic in Edinburgh and to maximise efficiency and security and not to over burden the store teams with multiple deliveries. Please adhere to these routes. From Feedback from store managers you are spending too much time talking and distracting the staff from their job. This forms part of the reason you are getting back late. EMPLOYEE’S RESPONSE/EXPLANATION The hold ups are happening due to the shops not signing off the vault paperwork quick enough. Stores are also asking me to do extra jobs for them EMPLOYEES IMPROVEMENT PLAN If your paperwork is not ready please leave it in the store and write on it unchecked. This will then become a matter for Ashley to sort out with individual stores. You should only take instructions from Ashley regarding any extra jobs in store. You must report back immediately if any store asks you. HOW WE WILL PROVIDE SUPPORT GOING FORWARD Any help required then please ask us. If you need any help understanding the runs or the rota then again please ask. Any extra duties you need to do on your runs will be clearly marked in the comments section of your run sheet – Please report back to Ashley REVIEW PERIOD This will be ongoing monitoring until further notice, and an improvement has been registered. FAILURE TO MEET THE IMPROVED PERFORMANCE BY THE END OF YOUR REVIEW PERIOD WILL LEAD TO FURTHER DISCIPLINARY ACTION

[46]On the same occasion, and while in David Broadbent’s office, the claimant was also asked to sign a copy of a recently issued “Group Read and Sign Notice”, which all drivers were required to sign, in relation to the accurate completion of their run sheets. At the time the claimant had no knowledge as to whether other drivers had or were to be individually asked or reminded to sign the Group Read and Sign Notice.

[47]The claimant declined to sign the Group Read and Sign Notice at the meeting on 29 April, stating, on that occasion, that he “was late to pick up his children and didn’t have time and would sign it later”.

[48]Two days later, on 1 May, his Line Manager Ashley McLaren asked him if he had yet signed the Read and Sign Notice. The claimant had not signed the sheet but went on to do so in the course of 1 May 2024.

[49]At the time at which the claimant signed the Group Read and Sign Notice 3 other drivers had already signed the copy which the claimant signed. A copy of the sheet signed by the claimant is produced at page 127 of the claimant’s Bundle.

[50]The principal purpose of the claimant being called to a meeting with David Broadbent and Sheree King on 29 April 2024 was to discuss concerns raised about his delivery performance and to go through with him, and have him countersign, a “Performance Improvement Plan”.

[51]The principal purpose of the claimant being called to a meeting in David Broadbent’s office on 29 April 2024 was not to have him sign the Group Read and Sign Notice. The request that he do so was incidental and made of him at that time as a matter of convenience.

[52]In asking the claimant to sign the Group read and sign notice, which he along with all drivers was due and obliged to sign, when in David Broadbent’s office for another purpose on 29 April 2024, neither the 1st nor the 2nd respondent ‘singled the claimant out’ from other drivers who had already signed or had yet to sign the notice.

[53]The claimant being so asked to sign the notice when in David Broadband’s office on 29 April 24, which he declined to do, did not constitute a detriment for the purposes of section 47B of the ERA. On 10 July 2024 the 2nd respondent, Mr Broadbent, was walking across the54. loading bay in the execution of his duties as Operations Director with a senior supervisor, Mr King, and noticed that the claimant was about to load his van with the pallets in the wrong order. The 2nd respondent pointed out that fact to David King who said to the claimant

55. “That’s in the wrong order” and went on to tell him to correct it.

[56]The claimant did not correct the order of the pallets. Instead, he replied by stating “I’m going to take it in this way because it’s a better order and the girls at Warrender Park have asked me to bring their delivery earlier.” The claimant began to argue with the senior supervisor David King. The 2nd respondent intervened to stop an open argument developing between a57. driver (the claimant) and senior supervisor, and to make sure that the delivery went out in the correct order. The 2nd respondent so intervening to ensure that the claimant followed a

58. reasonable request of his Manager, did not constitute subjecting the claimant to a detriment for the purposes of section 47B of the ERA.

[59]In the morning of 10 July 2024, at around 9.30 when the claimant was working in the warehouse on a shift which had commenced at 6 am, his supervisor Ashley McLaren asked him to take his break.

[60]Although phrased in the form of a question, Ashley McLaren intended that it be understood, and believed that the claimant in fact understood, it to be a rhetorical question, in fact requiring the claimant, when working in the warehouse under her supervision, to take his break.

[61]Ashley McLaren was asking the claimant, (directing the claimant), to do something which she was entitled to ask him to do and something which, if asked, he was contractually obliged to do, in terms of Clause 5.2 of his Contract of Employment.

[62]In asking the claimant to take his break at that particular time, Ashley McLaren explained to the claimant that the load which he was to take out was not yet “picked” (assembled and loaded), and that by his taking his break at that point the goods which he was to deliver would have been picked and loaded for him, by the time he finished his break, allowing him to then go straight out on his run.

[63]The claimant responded by saying that he would occupy himself in the warehouse crushing (baling cardboard) rather than take his break. He did not comply with the request that he take his break.

[64]Some time later Ashley McLaren, the claimant’s Line Manager, noted that the claimant was not crushing cardboard but was in a different part of the warehouse talking to another member of staff who should have been working on another task.

[65]Ashley McLaren then approached the claimant on a second occasion asking him, more forcibly, to take his break.

[66]The claimant responded on the second occasion by saying that he didn’t like the water in the warehouse and or that he did not have money on him to buy a sandwich. He did not comply with the request that he take his break.

[67]Ashley McLaren approached the claimant on a third occasion, this time telling him to take his break in terms which, in her view, left no scope for his misunderstanding that she was giving him a direction that he take his break. The claimant again declined to do so.

[68]Ashley McLaren felt that the claimant was undermining her openly for others to see. She felt tears beginning to well up and, as she did not want to let the claimant see that he had reduced her to tears, she turned and walked away from him as the tears began to flow. She went directly to tell David Broadbent, the Operations Director, what had occurred.

[69]David Broadbent asked Ashley McLaren to write down the details of the occurrences while they remained fresh in her mind which Ashley McLaren did.

[70]During her discussion with David Broadbent, when she returned to give him the written note of what had happened with the claimant, she told him that she no longer wanted to continue in the appointment of Warehouse Manager and that the main contributory factor to her wishing to resign from that position was the continuing disrespect shown to her by the claimant.

[71]In the course of being cross examined by the claimant about the state of her mental health at the time, Ashley McLaren stated that she had been and was under a great deal of stress at the time and that “You [the claimant] were the cause of 90% of my stress”.

[72]Ashley McLaren felt intimidated by the claimant whom she considered always liked to get his own way in the warehouse and would often talk over her instructions and generally not listen to her point of view.

[73]Ashley McLaren considered that the claimant was slower [on his delivery runs] than other drivers. She considered that the claimant was either unwilling or unable to understand why decisions about runs and the order in which they were to be carried out, were made in a particular way.

[74]Ashley McLaren’s turning away from the claimant in order to conceal her welling tears, on the third occasion of the claimant refusing her request and direction that he take his break, did not constitute her subjecting the claimant to a detriment for the purposes of section 47B of the Employment Rights Act 1996. The Dismissal On 10 July 2024 the 2nd respondent David Broadbent (Operations Director of the 75. 1st respondent) met with the claimant. Also present was Sheree King, HR Manager, in the role of note taker.

[76]The contemporaneous notes taken at the meeting by Sheree King were typed up by her within 2 hours of the conclusion of the meeting. The typed up Minute of the meeting of 10 July 2024 is produced at pages 21 and 22 of the respondent’s bundle. The Minute which bears the reference “SFEIR-WS002” and is dated 10 July 2024, is referred to for its terms which are held incorporated here by reference.

[77]Both David Broadbent and Sheree King (the note taker) confirmed in evidence that the Minute was an accurate record of what was said, respectively by David Broadbent and the claimant, in the course of the meeting and further, accurately records the order in which those statements were made including whether the statements were made before or after David Broadbent’s communication to the claimant of his dismissal.

[78]Both David Broadbent and Sheree King confirmed that the statement recorded as made by the claimant in the ante penultimate paragraph of the Minute; viz – “MS: I wonder what Waitrose will say when they find out how we get their products to our stores and what state they arrive in”, was not said by the claimant until after David Broadbent had confirmed that he was dismissing and had dismissed the claimant and had confirmed that his decision to dismiss was based on what had been discussed, up to that point, at the meeting of 10 July, all as recorded in the Minute.

[79]The Minute, at pages 21 and 22 of the respondent’s bundle, of the meeting of 10 July 2024 at which David Broadbent, the 2nd respondent, on behalf of the 1st respondent, dismissed the claimant, is an accurate record of what was said respectively by David Broadbent and Mark Sfeir at the meeting.

[80]As at 10 July and as at the point of deciding to dismiss and of his communicating to the claimant his decision to dismiss him, neither David Broadbent, the Dismissing Officer, nor Sheree King, the HR Officer and note taker, were aware of any issue previously raised by the claimant with any of his Managers, regarding temperature regulation in any of the refrigerated delivery vans.

[81]Prior to 10 July 2024 and prior to the point of his dismissal, the claimant had not directly disclosed or otherwise communicated to either David Broadbent or Sheree King any concerns or awareness of issues regarding the temperature regulation in refrigerated delivery vans.

[82]Prior to the taking of the decision to dismiss the claimant, none of the claimant’s Managers had relayed or otherwise communicated to either David Broadbent or Sheree King any such concerns, issues or disclosures made previously by the claimant about temperature regulation in a refrigerated delivery van, or in respect of any breach of the 1st respondent’s house rules regarding the temperatures at which refrigerated food products required to be transported.

[83]The first implied potential reference to any such matter, communicated by the claimant to either David Broadbent or Sheree King, was in the statement recorded as appearing in the ante penultimate paragraph of the Minute as made by him on 10th July 2024; viz, “MS: I wonder what Waitrose will say when they find out we get their products to our stores and what state they arrive in”.

[84]That statement, as is recorded in the Minute, was one made by the claimant after David Broadbent had taken and had communicated to the claimant the decision to dismiss him and, by reference to the matters which are recorded in the Minute as having been discussed in the meeting, the reasons for that decision.

[85]At the commencement of the meeting, David Broadbent had retained an open mind as to the outcome and had formed no intention to dismiss the claimant.

[86]As the meeting progressed;(a) the unsatisfactory nature of the claimant’s responses to the questions put to him in relation to his continued refusal to comply with his supervisors requests and then direction that he take his break,

(b) what he, David Broadbent considered was an increasingly argumentative manner adopted by the claimant in engaging with him at the meeting, and

(c) David Broadbent’s separately witnessed refusal by the claimant to follow the directions of a senior supervisor in relation to a delivery which he was about to load onto his van in incorrect order,

(d) combined in bringing David Broadbent to the conclusion;

(e) that he could no longer trust the claimant to discharge his duties in compliance with his obligations under his Contract of Employment, in observance of the 1st named respondent’s house (i) rules, (ii) in compliance with the proper instructions and directions of his supervisors and managers and, ultimately, (iii) in compliance with David Broadbent’s own directions in his capacity as Operations Director.

[87]David Broadbent concluded that there had occurred an irretrievable breakdown in the mutual confidence and trust necessary to sustain the employee employer relationship occasioned by the claimant’s conduct. He determined there and then to dismiss the claimant and did so immediately stating in the sixth last paragraph of the Minute:- “DB: I really do not feel like this is the job for you Mark, and therefore am issuing you with a week’s notice from today. I am offering you the option of working your weeks’ notice or finishing today and receiving what is owed to you. MS: So, you are telling me I have been dismissed? DB: Yes, based on what we have just discussed.”

[88]David Broadbent had concluded, in light of the claimant’s responses and explanations given and in light of the claimant’s conduct towards himself in the course of the meeting, that that conduct amounted to gross misconduct justifying the claimant’s summary dismissal.

[89]He had intended to dismiss the claimant summarily but, due to error on his part had dismissed him with one week’s notice, a decision which he ultimately decided to stand by, notwithstanding his error. The reason for the 1st respondent’s admitted dismissal of the claimant on 10 July 90. 2024, at the hands of the 2nd respondent and effective upon the expiry of his notice period on 17 July 2024, was the claimant’s conduct;(a) in repeatedly refusing, on 10 July, to comply with his supervisor’s requests and direction that he take his break,

(b) his arguing with a senior supervisor in relation to his intended departure from the correct order in which goods for delivery should be loaded; and,

(c) in adopting an argumentative and confrontational approach to David Broadbent, his employer, in the course of the meeting.

[91]The above conduct of the claimant coalesced, in the course of the meeting in a conclusion, on the part of David Broadbent, that he could no longer repose in the claimant the confidence and trust necessary to the continuing carrying out of his duties in compliance with, the directions of his Managers and with his contractual obligations owed to the 1st respondent. The 1st respondent’s dismissal of the claimant, at the hands of the 2nd respondent, 92. was not informed or otherwise influenced by any disclosure, protected or otherwise allegedly made by the claimant.

[93]Following the conclusion of the dismissal meeting on 10 July 2024 Sheree King walked the claimant to his car.

[94]The claimant showed Sheree King a video on his telephone of a delivery, being loaded to go to one of the respondent’s shops in a non refrigerated van, and which he said contained refrigerated Waitrose products.

[95]In relation to the video, the claimant said to Sheree King that if the respondents considered giving him his job back he would not send the video the Environmental Health Office or to Waitrose.

[96]Following the claimant’s dismissal on 10 July 2024 he sent an email to Sheree King, on 14 July, exercising his right of appeal against the decision to dismiss him.

[97]The email of 14 July was one of six emails which the claimant had sent to Sheree King following his dismissal and prior to exercising his right to appeal.

[98]In his email of 14 July, the claimant indicated that he wished his appeal to proceed on the basis of his having been automatically unfairly dismissed.

[99]In his email of 14 July the claimant bore to set out an account of what was said at the dismissal meeting of 10 July which was materially different from the Minuted Note of the Meeting taken by Sheree King, and which included an assertion which Sheree King knew to be untrue, namely that he had made reference to an issue regarding the delivery of chilled and frozen food in inappropriately refrigerated vans, prior to the point in the meeting where he was advised that he had been dismissed.

[100]The difference in detail, between the account set out by the claimant in his email of 14 July and that which Sheree King knew to be the accurate record of what was said, was such that she considered that it could not be explained by any misunderstanding on the part of the claimant.

[101]Sheree King concluded that the claimant was deliberately falsifying the position and attempting to have her process and appeal based on a false record of what had occurred at the dismissal meeting.

[102]Sheree King felt intimidated by the claimant who had previously said that he would not send the video which he had shown to her, to Waitrose and to the Environmental Health Office, if the respondents gave him his job back. She did not know how to respond, and wanted to consult Mr Iain Wells, the Director to whom she would normally report, who was absent on annual leave.

[103]In the circumstances, Sheree King did not take steps to progress the Grounds of Appeal sent to her by the claimant on 14 July 2024.

[104]One of the 1st respondent’s refrigerated delivery vehicles, the Peugeot van SD71 PDY, had a broken water waste pipe, used to take condensed water away from the refrigeration unit, for a period of about 2 to 4 weeks in or about the end of February 2024.

[105]The witness Manual Peres Santos, who was charged with carrying out of on site repairs and maintenance to the vehicles, stated in evidence that as soon as he requested the necessary replacement parts these were ordered by the 1st respondents.

[106]The 1st respondent’s relevant house rules regulating the transport of chilled or refrigerated goods required that these be transported within a temperature range of 0.5 to 8◦Celsius, and further, that drivers should decline to accept delivery loads in circumstances where it was not possible to comply with those temperature directions and, in circumstances where it was subsequently discovered that goods had been transported outwith that temperature range, to return those goods to the warehouse.

[107]On or about the beginning of April 2024, the claimant began a practice of making clandestine recordings of conversations which he had with work colleagues and managers within the 1st respondent’s organisation. He made these recordings on his telephone. He did not disclose to any of the individuals whom he recorded, at the time of making the recordings, that he intended to record, was or had recorded their conversations.

[108]The existence of such recordings having become apparent in the course of earlier case management, Judge Sutherland directed that in so far as the claimant may wish to rely upon their content before the Tribunal and which reservation all objections both in relation to their clandestine nature and any evidential weight to be accorded to them, that copies of the recordings be made available by the claimant to the respondents with a view to parties agreeing, where possible, transcripts and that any agreed transcripts then being included in the Joint Bundle.

[109]While the respondents retained reservations as to whether the copy recordings which had been provided to them were entire recordings or had been the subject of editing by the claimant, in so far as the recordings were intelligible, parties ultimately agreed transcripts of certain of the recordings made in the month of April.

[110]In the process of seeking to agree transcripts, the claimant, on 8 occasions, sent to the 1st respondent’s representative a transcript of what he stated was a recording of the dismissal meeting of 10 July 2024.

[111]The respondents declined to agree that transcript as it differed entirely from the Minute of the Meeting taken and extended by Sheree King on the day and with both David Broadbent’s and Sheree King’s recollection of what was said. They repeatedly asked the claimant to provide them with a copy of the recording from which he asserted the transcript had been extended in order that the two could be compared.

[112]When pressed to produce the alleged recording for comparison purposes, the claimant ultimately failed to do so. No such recording was before the Tribunal. Alleged Protected Disclosure A – 3 April Claimant to David Broadbent (DB)

[113]The first alleged protected disclosure, ultimately relied upon by the claimant at the hearing, was given notice of in the following terms; – on 3 April 2024 the claimant orally disclosed to David Broadbent that “frozen food was being delivered in a van that’s refrigeration unit was not functioning”. The relevant wrongdoing said to be disclosed and public interest relevance being, that “the health and safety of customers was likely to be endangered”.

[114]On 3 April 2024 David Broadbent was proceeding through the warehouse reviewing aspects of the logistics process in the discharge of his duties as Operations Director and which required him to walk continuously through the warehouse. In doing so he passed close to a group of individuals including amongst others the claimant and a fellow employee David King.

[115]The transcript of the clandestine recording made by the claimant on that day and produced at page 61 of the respondent’s bundle, bears to record the claimant making some disjointed statements, preceded by the words “Hi Dave” and relating to “boxes looking a bit squidgy on top of each other and then somehow they got stacked up because the freezer unit has not been working …” …. Thanks, Dave”.

[116]The transcript produced by the claimant records no acknowledgement or reply by David Broadbent but rather simply states that the voice recording “continues for approximately 12 seconds without dialogue”.

[117]David Broadbent’s position in evidence was that he had no recollection of any such statement being made to him by the claimant on the morning of 3 April. His position was that if such a statement had been made by the claimant it had not been heard by him, a position which on its face is consistent with the transcript of the clandestine recording upon which the claimant relies.

[118]Neither the claimant, nor any other person allegedly present spoke/spoke further to David Broadbent saying or doing anything that might amount to an acknowledgement that he had heard any such statement made.

[119]Let it be assumed that the claimant did make a statement in the disjointed terms set out in the transcript of the clandestine recording made by him, such statement was neither heard, nor its terms comprehended by David Broadbent.

[120]In those circumstances, the statement, let it be assumed that it was made by Mark Sfeir, did not constitute a disclosure of information for the purposes of sections 43A and B and C of the ERA.

[121]Alleged Protected Disclosure B – 15 April 2024 made orally by the Claimant to Ashley McLaren viz – “frozen food being delivered in van that’s refrigeration unit was not functioning”, nature of relevant wrongdoing and public interest relied upon being danger to the health and safety of customers.

[122]On 15 April 2024 the claimant clandestinely recorded the following telephone conversation between himself and Ashley McLaren, his supervisor:- “MS: 2am – Ashley, sorry to disturb you. I didn’t want to get into trouble for not informing you as a Manager, about the freezer unit on the van … the pipe’s completely broken. AM – the Peugeot one? MS - yeah, I presume Ryan and Manuel has probably said to you, but just in case. AM – it normally just slots back into the plastic. MS – no, it’s the one that is completely unravelled … it won’t go back in at all. I think someone has taken the pipe, so I presume that they are doing something about it, but just in case, I didn’t want … AM – no worries, I’ll get Iain to call, it’s like cool temp or cool breeze or something.

[123]The above statement was a qualifying and protected disclosure for the purposes of sections 43A, B, and C of the ERA.

[124]Alleged Protected Disclosure C 23 May 2024 viz – “frozen food being delivered in van that’s refrigeration unit was not reaching the correct temperatures” with relevant wrongdoing and public interest relied upon being danger to the health and safety of customers.

[125]On 23 May 2024 the claimant clandestinely recorded the following conversation between himself and Ashley McLaren, his supervisor:- “MS – just to say that Citroen’s not … I’ve written it down anyway, but it doesn’t seem to be getting down to temperature at all. AM – no?, the guy’s … I’ve ordered, the guy’s ordered the parts … I’m waiting on him coming to fit them. MS – but I, I know … we’re taking Waitrose stuff today as well.”

[126]The above communication of 23 May 2024 constituted a qualifying and protected disclosure for the purposes of section 43A, B, and C of the ERA.

[127]Alleged Protected Disclosure D – 27 June 2024 made in writing by the Claimant to Ashley McLaren with the relevant wrongdoing and public interest founded upon being danger to the health and safety of customers

[128]On 27 June 2024 the claimant sent a WhatsApp message to Ashley McLaren in the following terms which are copied at page 68 of the respondent’s bundle:- “27 June, 2024 MS – Ashley … do y want me to collect the food waste and black bin bags from Aberlady/Gullane this morning? I only ask because I have the Yester Farm stuff to collect on the same run. Ta. AM – Please collect the rubbish. Try and keep a space at the back of your van for Yester. MS – okay … will do. I’ll keep the rubbish/waste towards the front of the van.”

[129]The WhatsApp exchange of 27 June 2024 did not constitute a protected and qualifying disclosure for the purposes of sections 43A, B and C of the ERA.

[130]Alleged Protected Disclosure E – 10 July 2024, during the dismissal meeting made orally to David Broadbent viz – “raised above issues regarding unsafe food delivery and that nothing was being done” the relevant wrongdoing and public interest relied upon being health and safety of customers”.

[131]On 10 July 2024 at the conclusion of his dismissal meeting with David Broadbent and at which Sheree King was present and functioned as note taker, at a point in the meeting following directly after David Broadbent’s confirmation that he, the claimant, was being dismissed for the reasons which had just been discussed in the meeting, the claimant made the following statement:- “MS: I wonder what Waitrose will say when they find out how we get their products to our stores and what state they arrive in.”

[132]That statement did not constitute a qualifying and protected disclosure of information for the purposes of sections 43A, B and C of the ERA.

[133]Alleged Protected Disclosure F – 23 April 2024 (not previously given notice of but added by the claimant in the course of the hearing) – made orally to Ashley McLaren, relevant wrongdoing and public interest relied upon not specified by the

[134]The transcript of the clandestine recording made by the claimant on 23 April 2024 of his conversation with Ashley McLaren, his supervisor, contains the following exchange:- “AM – the weather’s getting warmer … I kinda need you to be wrapping one pallet at a time. You know what I mean. … don’t bring everything out of the freezer!. MS – I know … it’s no bother wrapping them in the freezer, but why are they not wrapped already? They should just be wrapped. AM – but why can’t you just wrap them in the freezer though? MS – I don’t want to stand in the freezer and wrap them. But why are they not wrapped already … there’s nothing to be added to it … is it. AM – they were quickly picked because we had to go out in the van this morning just wrap them in the freezer. MS – no, I’m just saying it … AM – I know, but I’m saying … MS – well, I’ll wrap these two just now but it makes no odds because the freezer in the van doesn’t work anyway. AM – since when? MS – I’ve told you about it the last couple of weeks. I told you the pipe’s totally … it’s been weeks it’s not working. AM – Aye?, but no one’s actually said it doesn’t come down to temperature. MS – no, I said it’s not working at all. The pipe has totally unravelled … it’s not remotely chilled. So it kind of doesn’t make much difference for this but for time wise … it could have been wrapped. Voice recording continues for approximately 10 seconds without dialogue”

[135]In the course of the above exchange of 23 April with Ashley McLaren, the claimant made a qualifying and protected disclosure for the purposes of sections 43A, B and C of the ERA. Alleged Detriments for the Purposes of Section 47B of the ERA

[136]Alleged Detriment 1a - In or about April 2024 alleged perpetrator Ashley McLaren – “Ashley McLaren ignored me when I tried to speak to her at work” [directed by Judge Sutherland to provide further specification or delete the complaint.] The claimant declined to provide any further specification either in compliance with Judge Sutherland’s Orders of 23 May 2024 nor did he do so in the course of the hearing. No further evidence was presented in respect of the alleged detriment 1a which was not established in evidence.

[137]Alleged Detriment 1b - Date unspecified. Alleged perpetrator specified only in the course of the hearing as Ashley McLaren – “consistently rude/aggressive manner towards me”.

[138]No more specific notice or evidence of the alleged detriment was provided by the

[139]Alleged Detriment 2a - No notice of when the detriment was suffered was given by the claimant in advance of the hearing or in the course of the hearing. When challenged to do so in cross examination the claimant indicated only that it was around the end of February/beginning of March 2024. When pressed in evidence the claimant stated that the detriment consisted of Ashley McLaren telling him on one occasion that she didn’t have room in the other vans to reallocate part of a load and subsequently walking off at the end of the conversation.

[140]Alleged Detriment 2b - On 29 April “being singled out by Ashley McLaren to sign a driver’s Group Read and Sign Notice” [Findings in Fact 44 to 53 above refer].

[141]Alleged Detriment 2c – 10 July 2024 Date of Dismissal – “Ashley McLaren got angry with me for declining to take my half hour break at a point in the day that was less than half way through my working day”. Findings in Fact 59 to 74 above refer.

[142]Ashley McLaren’s reaction, as a Manager, to the claimant’s repeated refusal to comply with a legitimate direction and instruction of his Manager, did not constitute a detriment for the purposes of section 47B of the ERA.

[143]Alleged Detriment 3 – David Broadbent “ignored me when I tried to speak to him at work”. The claimant was directed by Judge Sutherland to provide further specification or to delete the complaint.

[144]Alleged Detriment number 4 – “David Broadbent ignored my text message of 5th of March 2024 and did not discuss its details later at work”

[145]The claimant departed from this alleged detriment and confirmed in the course of evidence and submission that he no longer sought to establish or rely upon it.

[146]Alleged Detriment 5a – 3rd April “when I made one of my protected disclosures to DB, he answered me in a harsh manner saying ‘it’s nothing to do with you’”

[147]The comment, described by the claimant as “one of my protected disclosures”, is not a comment which he gave notice of relying upon as a protected disclosure. The remark appears in the transcript at page 62 of one of the conversations between the claimant and David Broadbent which were clandestinely recorded by the claimant and is in the following terms:- “MS to DB – it’s unfortunate about this morning … I am wishing I’d never talked about it because she … the woman in Gullane said she was wasting the apple frangipanes, the whole box. So you’ll probably get an email about that. DB – it’s nothing to do with you … don’t worry about it … yeah … you’re just delivering the product.

[148]The response made by David Broadbent, as recorded in the transcript, does not objectively fall to be construed as either harsh or rude. It did not constitute a detriment for the purposes of section 47B of the ERA.

[149]Alleged Detriment 5(b) 3rd April: “On the 3rd of April David Broadbent, in answer to a query by me about whether I should include particular items in my delivery run, answered me gruffly – ‘do whatever is on your worksheet’”.

[150]The transcript produced at page 61 of the respondent’s bundle of the clandestine recording made by the claimant discloses the following exchange between the claimant and Tyler Broadbent and subsequently the claimant and David Broadbent:- “3rd April 2024 MS to TB – I’m down for Colinton, Polwarth and Warrender, but I don’t see them there. There’s the pallets that’s left, I presume that’s me. TBI, just take them. MS – I presume that’s me. MS to TB – I, I was just saying to Tyler, because Tyler is going to load me … I’m presuming that I’m going off schedule slightly because whatever 3 pallets are left there are for me. DB – just on your run sheet. MS – no, it’s not what’s on my run sheet … but just take what’s remaining, yeah!

[151]David Broadbent’s words ‘just on your run sheet.’ spoken in answer to the claimant’s query was a response which he was entitled to make in the course of exercising his managerial duties. It did not constitute his subjecting the claimant to a detriment in terms of section 47B of the ERA.

[152]Alleged Detriment 5c – 10th July 2024 – “in our meeting of 10th July, 2024, which culminated in dismissal, David Broadbent brought up the subject of me asking too many questions of him.”

[153]The Minute of the dismissal meeting of 10th July contains no record of David Broadbent bringing up that matter.

[154]Alleged Detriment 6 – 29th of April 2025 – “Ashley McLaren, David Broadbent and Sheree King accused me of being too slow with some of my deliveries.” – [Findings in Fact 44 and 45 above refer.]

[155]On 29th April 2024, the claimant was asked to attend a meeting with David Broadbent to discuss concerns regarding aspects of his performance and to agree the terms of a Performance Improvement Plan. A copy of the Performance Improvement Plan is produced at page 20 of the respondent’s bundle under the heading ‘Performance Concern’ the following is recorded in the Plan:- “Time Management – Runs are designed to help with the heavy flow of traffic in Edinburgh and to maximise efficiency and security and not to overburden the store teams with multiple deliveries. Please adhere to these routes. From feedback from Store Managers you are spending too much time talking and distracting the staff from their job. This forms part of the reason you are getting back late.’

[156]The respondents had received complaints from a number of Store Managers regarding the timing of the claimant’s deliveries and the time spent by him in their premises.

[157]Raising these concerns with the claimant and seeking his responses/explanations in the context of a Performance Improvement Meeting and Plan was action which the respondent’s Managers were entitled to engage with. Their doing so did not constitute subjecting the claimant to a detriment for the purposes of section 47B of 29th of April/1st of May 2024 – “I was asked to sign

[158]Alleged Detriment 7:- documents noting disciplinary action would be taken if issues happened again.” – [Findings in Fact 46 to 52 refer.]

[159]In April of 2024, in order to address a general concern about the accurate completion of run report sheets by drivers, the respondent issued a Group read and sign notice which all drivers, including the claimant were required to read and sign.

[160]Drivers were offered multiple individual and collective opportunities to read and sign the document, including copies posted on the staff notice board. On the 29th of April 2024, when the claimant was already meeting with David Broadbent and Sheree King in respect of a Performance Improvement Plan, David Broadbent asked the claimant if he had yet signed the read and sign notice and as he had not done so offered him the opportunity to sign a copy of the notice there and then at the meeting.

[161]The notice which the claimant was asked to sign was, in its terms, identical to that signed by all other drivers. The claimant declined to sign the notice on that occasion saying that he did not have time to as he was already late to collect his children but that he would do so later.

[162]On the 1st of May 2024 the claimant was asked by his Supervisor if he had yet signed the Group Read and Sign Notice and if not to sign it on that day. The claimant duly signed the document on the 1st of May 2024.

[163]At the time the claimant signed the document 3 other drivers had already signed the copy which he signed (multiple copies being made available).

[164]In asking the claimant, on the 29th of April and on the 1st of May 2024, to sign the Group Read and Sign Notice which had been issued and which applied to all drivers, the respondent’s Managers were doing something which they were contractually entitled to do. Their doing so did not constitute subjecting the claimant to a detriment in terms of section 47B of the ERA.

[165]Alleged Detriment 8 – 10th of July 2024 – “I was called into a meeting without prior notice and without opportunity to be accompanied and issues raised with me asking too many questions”. Findings in Fact 75 to 92 above refer.

[166]On 10th July 2024 the claimant was asked to meet with David Broadbent, in order to discuss concerns arising out of his conduct, without prior notice and without being given the opportunity to be accompanied. The meeting was a conduct related meeting of a disciplinary character.

[167]Prior to his convening the meeting and during the initial stages of its conduct, David Broadbent did not have in contemplation his dismissing the claimant in the course of the meeting.

[168]Separately and in any event, David Broadbent did not convene the claimant to the meeting of 10th July 2024 because or in consequence of any alleged disclosure previously made by the claimant regarding the transport of refrigerated or chilled goods.

[169]David Broadbent convened the claimant to the meeting because of concerns with aspects of the claimant’s conduct, some of which he had directly observed and some of which had been raised with him that day by the claimant’s Manager Ashley McLaren, both orally and by way of a written report.

[170]In so convening the claimant to the meeting David Broadbent did not have in contemplation his subsequent dismissal of the claimant.

[171]In asking Sheree King, the respondent’s HR Officer, to attend at the meeting in the capacity of a note taker he did not indicate to her that he had in contemplation dismissing the claimant.

[172]Rather, David Broadbent indicated to Ashley McLaren that the meeting concerned the claimant’s conduct principally in refusing on 3 occasions earlier in the day to take his break when directed to by his Supervisor.

[173]In asking the claimant, at David Broadbent’s request, to attend the meeting with David Broadbent on 10th July 2024, Sheree King understood the meeting was one that was to relate to the claimant’s conduct and in particular his conduct earlier that day in repeatedly refusing to take his breaks when instructed to by his Line Manager.

[174]Sheree King did not understand, prior to the meeting, that there was any intention or expectation, on the part of David Broadbent that the claimant would or might be dismissed in the course of the meeting.

[175]In advance of the meeting David Broadbent had not communicated to her any such intention or expectation but only that the meeting related to aspects of the claimant’s conduct.

[176]Notwithstanding any prior lack of intention to dismiss the claimant, the meeting being a conduct related meeting of disciplinary character, having the claimant called into the meeting without prior notice and without the opportunity to be accompanied did, in the circumstances, constitute subjecting the claimant to a detriment in terms of section 47B of the ERA.

[177]Alleged Detriment 9 – “Failure by Sheree King to progress my Grounds of Appeal sent to her on the 14th of July 2024 which happened after the meeting of the 10th of July which she attended and at which I blew the whistle”. Findings in Fact 75 to 92 above refer.

[178]At the meeting of 10th July, after David Broadbent had dismissed the claimant and confirmed to him the reasons for his dismissal, the claimant, as is minuted at page 22 of the respondent’s bundle stated “I wonder what Waitrose will say when they find out how we get their products to our stores and what state they arrive in.”

[179]After the meeting, the respondent’s HR Officer, Sheree King, advised the claimant that he had the right to lodge an appeal against the decision to dismiss him and of the timescale within which that any such appeal should be made.

[180]Sheree King walked the claimant to his car where the claimant showed her part of a video allegedly showing goods including what he alleged were Waitrose chilled goods being loaded into a non refrigerated van and stated to her that if the respondents would consider giving him his job back he would not show the video to the Health and Safety Executive or to Waitrose.

[181]Thereafter, between the 10th and the 14th of July 2024, the claimant sent several emails to Sheree King suggesting that he had been unfairly dismissed because of disclosures which he alleged he had made, and not for the reasons given to him by David Broadbent at the meeting of 10th July.

[182]On 14th of July 2024, the claimant sent written Grounds of Appeal to Sheree King.

[183]The written Grounds of Appeal submitted by the claimant contained an account of meeting which was substantially different from that witnessed and minuted by Sheree King, both with regards to what had been said, respectively by himself and by David Broadbent in the course of the meeting of 10th July, and with regard to the order in which and at what point in the meeting various statements were made.

[184]The Grounds of Appeal included an assertion of a state of fact which Sheree King knew to be false because she herself had been present at the meeting.

[185]Sheree King felt intimidated by the claimant. She did not know whether it would be appropriate or inappropriate to progress an appeal based upon grounds which she knew to be false. She wanted to take the advice of Iain Wells, Finance Director of the company to whom she reported, but he was on annual leave and, in the interim, she did not progress the claimant’s submitted Grounds of Appeal.

[186]In the circumstances Sheree King did fail to progress the claimant’s Grounds of Appeal of 14 July 2024.

[187]Notwithstanding her reasons for doing so, and subject to it being established that she did so on the ground that the claimant had made one or more protected disclosures, which the Tribunal has not found in fact to be the reason, Sheree King’s failure to progress the claimant’s Grounds of Appeal of 14th July 2024 did constitute subjecting the claimant to a detriment for the purposes of section 47B of

[188]Sheree King’s failure to progress the claimant’s submitted Grounds of Appeal of 14th July 2024 was not done by her on the ground that the claimant had made the statement “I wonder what Waitrose will say when they find out how we get their products to our stores and what state they arrive in” at the end of the meeting of 10 July 24, but rather, was done by her because she felt intimidated by the claimant and was not prepared, without having the opportunity to consult her Reporting Director Iain Wells, to progress Grounds of Appeal which contained what she knew was a false statement.

[189]Separately, and in any event, the statement recorded as made by the claimant in the Minute of the dismissal meeting and found by the Tribunal to be the statement made by the claimant, was a rhetorical question which did not, in its terms disclose any information about how the respondent got Waitrose’s products to their stores nor as to the state in which they arrive. It did not constitute a qualifying and protected disclosure of information for the purposes of sections 43A, B and C of

[190]In the circumstances the said failure to progress the claimant’s appeal against dismissal did not constitute an act, on the part of the 1st respondent, of subjecting the claimant to a detriment for the purposes of section 47B of the ERA.

[191]As at the 10th July 2024 Sheree King had been in the role of Human Resources Officer for only a few months.

[192]The meeting of 10th July 2024, was the first meeting at which Sheree King had been present and at which an employee was dismissed.

[193]In Sheree King’s experience the 1st respondents had very few staff disciplinary problems.

[194]Sheree King was a member of the “Hazard Analysis and Critical Control Points” Team, the (“HACCP”) Team, whose responsibilities included the areas of food safety which area was also regulated by the 1st respondent’s House Rules.

[195]The induction process undertaken by the claimant at the commencement of his employment included his familiarisation with the 1st respondent’s house rules, a copy of which he signed as read and understood.

[196]The respondent is an organisation which employs over 200 individuals. In his capacity as Operations Director David Broadbent, the 2nd named respondent did not routinely engage in supervising or giving direction to individual drivers such as the claimant, a function being principally discharged by Line Managers in the organisation of whom there were both junior and senior supervisors in the management chain between drivers and the Operations Director.

[197]The claimant’s position in evidence was that “95% of the Minute, taken by Sheree King, of the dismissal meeting of 10th July, had been fabricated by the note taker”.

[198]The position, in evidence, of the note taker, Sheree King and of David Broadbent, the other party present, was that the Minute accurately recorded what was said respectively by the claimant and by David Broadbent at the meeting of 10th of July, the order in which those remarks were made and their timing relative to David Broadbent’s act of dismissal of the claimant.

[199]Issues relating to the regulation of temperatures in refrigerated vans arise within the food distribution industry from time to time.

[200]Within the 1st respondents there was an established practice for dealing with such issues as and when they arose.

[201]The 1st respondent’s house rules required that drivers not accept chilled or refrigerated goods for transport in vans which they knew were not complying with the in house temperature rules; and that they return to the warehouse any load which in the course of or after transport they considered had not been transported in accordance with the house temperature rules.

[202]When Ashley McLaren first became aware that the refrigeration unit in the Peugeot van was not coming down to temperature she requested that an engineer attend to address the issue.

[203]In the event that the claimant considered that the issue was recurring and had not been/was not being dealt with, it was open to him to report that matter to any member of the HACCP Team, including Sheree King and or David Broadbent, who would have immediately dealt with it. The claimant did not do so.

[204]On the 29th of April 2024, the claimant met privately with David Broadbent and Sheree King in relation to his Performance Improvement Plan. The opportunity existed on that occasion for him to disclose any concerns he had about the transport of refrigerated goods. The claimant did not do so making no reference in the course of the meeting to any such matter.

[205]In the event that the claimant had wished to address any concern which he had for the health and safety of customers anonymously, it was open to him to report any suspected breach, of the respondent’s house temperature rules, anonymously to the Health and Safety Executive who would have immediately attended on site to carry out an investigation and, if appropriate would have issued an Improvement Notice which the 1st respondent would have immediately complied.

[206]Making such an anonymous Report would have addressed any health and safety issue while maintaining the claimant’s confidentiality.

[207]Despite asserting the position that in May of 2024 the claimant believed that a breach of the 1st respondent’s house temperature rules was subsisting or reoccurring, he took no steps to make a report, anonymous or otherwise, to the Health and Safety Executive, nor in May, June or July prior to his being dismissed, to bring such concerns to the attention of any member of the 1st respondents HACCP Team including Sheree King and or David Broadbent.

[208]Within 5 weeks of his dismissal on 10th July 2024 the claimant secured alternative employment in which he continued as at the date of the hearing. He confirmed in evidence that, immediately upon securing the appointment, been and continued to be resolved to remain in it, it being an employment which offered him the opportunity to train and expand his skills in an area in which he enjoyed working. He confirmed in evidence that he had no intention of seeking alternative employment and following his securing of his current new employment had made no further efforts to find alternative employment.

[209]In the 5 week period between the expiry of his notice on the 17th of July 2024 and his commencement of his new current employment, the claimant suffered a net loss of wages of 5 weeks x £419.63 totalling £2,098.15 net. In the same period the claimant suffered a loss of 5 weekly employer’s pension contributions of £11 each total £55.

[210]On the claimant’s calculation the net difference in earnings between his net weekly pay from the 1st respondents before dismissal, (£419.63), and his net weekly pay received in his new employment, (£387.81), was £31.82 per week which, as at the date of hearing had subsisted for a period of 39 weeks (a total of £1,240.98 net).

[211]In 2024 Ashley McLaren utilised the rotas which she posted on the Staff Notice Board, approximately three weeks in advance, as Staff Schedules. Her principal purpose in posting the rotas, which she typically cut and pasted from previous versions changing only the dates, was to give driving staff advance notice of when they required to be in to work. She used the run sheets which she subsequently issued to confirm the actual allocation of runs to drivers and the composition of loads.

[212]The template rotas posted on the Notice Boards did not accurately reflect, the actual composition of load and the actual duties undertaken by drivers on any particular day.

[213]Both Ashley McLaren and supervisors carried out “splits”, that is changing the composition of loads and runs shown on the run sheets to give priority to and manage the delivery of chilled or frozen goods in compliance with House Temperature Rules.

Applicable Law

[214]The rights and remedies focused by the issues in this case are governed by the following statutory provisions of the Employment Rights Act 1996:- Protected and Qualifying Disclosures “43A Meaning of “protected disclosure”. 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. 43B Disclosures qualifying for protection.(1) In this Part a “ qualifying disclosure ” means 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, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

(4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.

(5) In this Part “ the relevant failure ”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1). 43C Disclosure to employer or other responsible person. (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure — (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to— (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person. (2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.” Automatic Unfair Dismissal “103A Protected disclosure. 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.”

[215]The statutory provisions identify, in their terms, each of the essential matters of fact which must be established before the Tribunal, on the balance of probabilities, if complaints under the relevant sections are to succeed.

[216]The onus of proof in respect of each such essential matter of fact sits with the claimant, including, in relation to section 103A, the onus of proving that the reason, or if more than one the principal reason for dismissal was the particular reason that the employee (the claimant in the instant case) had made a particular protected disclosure to which the dismissal was causally linked, albeit that it is open to an employer to seek to prove that the reason for dismissal was one wholly unconnected with the making of any such alleged and asserted protected disclosure. Submissions

[217]There is no requirement upon the Tribunal to record at length the submissions made by parties and its normal practice is to outline these in summary. Notwithstanding, given that all three parties were self representing without the benefit of legal representation, and with a view to doing justice to the submissions made, the Tribunal exceptionally sets out in full below, the submissions made, respectively;a. by the claimant,

b. those made on behalf of the First Named Respondent; and,

c. those made by the Second Named Respondent as noted at the hearing. 218. [Words appearing within square brackets in non italic font are explanatory comment by the Tribunal and not words spoken by the parties in submission] The Claimant’s Submissions

[219]“The claimant makes the following claims:-(a) Whistleblowing section 47B of the Employment Rights Act

(b) Automatic Unfair Dismissal section 103A of the Employment Rights Act [“ERA”] The claimant believes he made a number of protected disclosures during the spring/summer of 2024. He believes that one or more were qualifying because he reasonably believed (a) There was a breach of legal obligation under Health and Safety Food Standard Scotland, Rules for Delivery of Goods to be sold to the Public [in response to a request from the Tribunal for citation] “I have not looked at any rules I just assumed that there must be some. (b) He reasonably believed that these concerns were in the public interest and were a risk to public health. The claimant believed his disclosures to be protected disclosures as they were made to his employer and to a person/persons in a senior position within the organisation. Under section 103A of the ERA 1996 the claimant believes “Disclosure A” in the Table at page 75 of the respondents’ bundle and referred to in the transcript” [of the covert recordings made by him] “at page 60 to 62 of the respondents’ bundle and made to David Broadbent [the Second Respondent] on the 3rd of April 2024, and ‘Disclosure E’ in the Table at page 73 of the respondents’ bundle [assertedly] made by him to David Broadbent in the meeting of 10th July 2024 before he was dismissed, were protected and the claimant believes that these disclosures were the primary reason for his dismissal at that meeting. Furthermore, the claimant believes that his disclosures led to detriments [other than dismissal] under section 47B of ERA; the claimant believes that Disclosure A on the 3rd of April made to David Broadbent directly led to him being treated rudely by David Broadbent and ignored by him in the workplace on the 3rd of April [after the claimant] made the above disclosure, David Broadbent walked away without answering him. Later on 3rd April when [he] asked for authority to go “slightly off schedule” in taking 3 remaining pallets in the warehouse because his own run had been taken by someone else, David Broadbent seem quite annoyed in his answer and said ‘just on your run sheet’. After telling David Broadbent that he will probably get an email about wastage from the Gullane shop due to a pipe being broken on the refrigeration unit on the Peugeot van about food wastage, David Broadbent answered ‘it’s nothing to do with you don’t worry about it yea you’re just delivering the product’. The claimant feels that the tone of his reply was overly aggressive and he felt like he was being told off for mentioning the issue with the inference [drawn by the claimant from the words] that it was not his business. Later still in the conversation David Broadbent says ‘if the bulkhead pallet exceeds that then it is the forklift driver who is an idiot’. David Broadbent then says ‘don’t worry about it it’s not your business’. This was said in an aggressive tone. Also later on David Broadbent walks off mid conversation. Next, after this conversation on 3rd of April 2024 Detriments page 80 [of the respondent’s bundle] Detriment 3 [in her Orders of 23rd May 2025 and reiterated in the Table of Disclosures and Detriments “the Table”, Judge Sutherland ordered the claimant to provide specification of this alleged detriment or to delete the complaint. The claimant did neither prior to the hearing and when asked in the course of his evidence to provide further specification he neither did so nor did he delete (withdraw) the complaint] On a number of occasions after I had stated that there were possible health and safety issues with the way chilled/frozen food was being delivered David Broadbent ignored me at work and treated me rudely. When [on an unspecified occasion] in or about the end of February or March 2024 when asking Mr Broadbent to confirm that it was okay for me to change a run from what my supervisor David King had said, I felt I was treated with disdain and rudeness [in answer to a request from the Tribunal for clarification the claimant confirmed that he believed that the Operations Director of the First Respondent (David Broadbent) should personally confirm to him, and to all drivers on the ground, all changes made by his supervisor or line manager before they should be required to implement them] The claimant felt that Disclosure A, along with the fact that he began to note defects and actual temperatures on his run sheet caused him to be singled out from other drivers. David Broadbent and Ashley McLaren called him [the claimant] into David Broadbent’s office on the 29th of April 2024 [Detriment 7 in the Table at page 85 and 86 of the respondent’s bundle] as a direct result of Disclosure A [allegedly made 4 weeks earlier] and asked me to sign a document [a “Group Read and Sign Notice setting out the requirements for the proper completion by drivers, of their run sheets which all drivers were asked to sign and a copy of which was placed on the notice board.] I say that I mentioned in evidence that my line manager and David Broadbent would probably have had sight of my run sheet/run sheets and would probably have been aware by then of the temperatures that I had begun to record in them, I accept that I was called in on that occasion for another reason also. It was for being slow and talking too much. He was shown illustrative run sheets of other drivers, Santos and Cellia[?]. David Broadbent told the claimant they [the run sheets] have to be completed with 80 to 85% accuracy. They accepted the claimant’s statement that he usually did that. As far as the claimant is aware [after the event] no other employee was brought into the office to be asked to sign the notice the claimant was asked to sign a copy of the notice which had already been signed by other drivers. The claimant says it was a detriment to be taken into the office because only he was asked to go into the office. The sheet stated at the bottom that failure to accurately complete run sheets would lead to disciplinary action. I felt saddened when [three weeks later] I learned that the two drivers whose run sheets I had been shown had not been individually asked to sign the Group Read and Sign Notice. I am saying it is a detriment because at the time they deliberately decided to single only me out to talk to. I was saddened by the fact that the people whose sheets I was shown told me 2 or 3 weeks later that they had not [been individually asked or reminded to sign them] The claimant also feels that Disclosures A, B and F [in the Table at page 75 of the respondent’s bundle and respectively allegedly made on 15th April and 23rd April 2024, F having been added in the course of the hearing directly affected the decision to give him an Employee Improvement Notice], I feel that if I had not made those disclosures I would not have been given an Employee Improvement Notice. His explanation for the situation in the Gullane shop was noted down by the respondents but he was still given the Employee Improvement Notice. He feels he could have just been spoken to informally. After the 29th April 2024 meeting, Ashley McLaren asked him to sign the Group Read and Sign sheet. The claimant felt it strange when he learned two weeks later that two of the other drivers Manuel Santos and Guiseppe Cilia whose non compliant run sheets he had been shown on the 29th of April by way of illustration (illustrative run sheet) had not [yet] signed the copy which had been placed on the notice board for signing by drivers and, had not [yet] been individually asked/reminded to sign it. Disclosures B [15th April in the Table at page 75 of the claimant’s bundle] and F [23rd April 2024 page 75 of the claimant’s bundle added in the course of the hearing] “which are referred to in the transcript at pages 64 to 66 of the respondent’s bundle, directly affected the differential treatment which I was subjected to in being [individually] asked to sign the group read and sign notice. In Disclosure F, AM [Ashley McLaren] just walked off angrily without concluding the conversation. Later that day when the claimant raised the matter again she shouted back at the claimant ‘I’ve already told you that an engineer is coming out’. Detriment 2B [in the Table at page 79 and 80 of the claimant’s bundle] other drivers John Kevan and Manuel Santos were not singled out. The claimant attributes this directly to Disclosure F on the 28th of April. Detriment 8 [in the Table at page 86 of the claimant’s bundle], being called into the meeting of 10th July I believe was directly linked to Disclosures A, B, C, D and F. So Detriment 9 [the Table at page 86 of the claimant’s bundle] failing to respond to or progress my appeal/grievance and failing to respond to numerous emails sent by me to Sheree King between the 10th and the 14th of July and a text message sent by me to Sheree King on the 25th of July I believe were related to Disclosure E which I say culminated in my dismissal. That’s the end I then go on to talk about remedy. The claimant would like to leave the Schedule of Loss unchanged save as to the section as to the loss of future earnings where the claimant states ‘as the Tribunal sees fit’ [pages 32 to 35 of the claimant’s bundle]. The claimant did have a little trouble finding another job but ending up accepting his current job [after 5 weeks]. He is truly very happy with his new employment and is actively taking qualifications and has also formed close bonds and it would be unreasonable to ask the claimant to give up that employment now. I leave it to the Tribunal as it sees fit to decide what future loss the respondents should be liable for. Lastly the claimant believes that the respondents and their witnesses dishonestly and deceitfully have made representations [sic confirmed meant given evidence] to the Tribunal, Iain Wells, David Broadbent, Gordon Velzian, Sheree King and Ashley McLaren. In contrast the claimant believes he has been honest. He identified 40 words in total in the transcripts which he had made in which he had put in inaccuracies. He also wanted to update the Tribunal about the recording which he had lost – page 96 of the claimant’s bundle from 7 lines from the bottom to the end of page 97 plus section 9.1 of the respondent’s CMD Agenda at page 132 of the claimant’s bundle which I say was not the case. At pages 105 to 119 of the claimant’s bundles the draft rotas which were posted on the notice board shows deliveries using these vehicles being deliberately rotated in and pages 70 and 71 of the respondent’s bundle being agreed transcripts [that is the claimant’s written description of clandestine videos taken by him but not produced] which I say made clear that I did not see splits in those videos. As I say, I believe that Ashley McLaren was lying about the splits issue. I also refer to pages 137-136 and 138 being an email from David Broadband to Lynn at Margiotta Lasswade relating to a Lasswade house rule inspection April-June 2024 and to page 37 where David Broadbent says that the top line in the middle of page 137 should be removed from this Report. I find it deceitful. “The respondents have said that the disclosures I made on the 10th of July were not made until after I was dismissed. Obviously I don’t believe that to be true with reference to page 12 of the respondent’s bundle [the respondent’s response to the claimant’s Table] compare what David Broadbent has said with page 62 of the agreed transcripts where I say it is clear that he must have heard because he answers me. Furthermore the claimant believes there were severe inconsistencies in the respondent’s witness’s oral evidence. For instance Gordon Velsian refers to a Report on drivers of the 14th of June. In the Report he refers to all drivers in the present tense but refers to Manuel Santos in the past but Manuel did not leave until November 2024 so that implies to me that the Report was made after November 2024 not in June. Also Sheree King refers to walking the claimant to his car on the 10th of July and that he showed me a video. She said that he said about the video something like if you give me my job back I may not send the video to Waitrose and HSE. I think this is an utter lie and it demonstrates ability to lie under affirmation. Additionally, the claimant believes that the minute [the dismissal meeting of] 10th July to be almost entirely fabricated. Sheree King herself says she thought it was something to do with breaks. She had not been informed that it might be a matter for dismissal. David Broadbent states that the reason the claimant was being called in to the office wasn’t a matter for dismissal but that he felt that the claimant was being very aggressive and trying to take control of the meeting and that he essentially wasn’t having that and that’s when he decided to dismiss. The claimant suggests that what David Broadbent describes as his being argumentative, aggressive and trying to take control of the meeting was in fact the claimant giving his opinion on how staff were being treated and how public health and safety issues were being ignored in the face of the claimant’s reference to hard evidence that these issues were in fact very real.” Submissions of Mr Wells for the First Respondent

[220]“I will summarise why the evidence shows the respondent acted fairly and had no knowledge of whistleblowing and that David Broadbent had no knowledge of whistleblowing before he dismissed the claimant and that there was no witch hunt against a former employee. I will go through the reasons why I feel this case should be dismissed. Summary of Key Facts The reason for dismissal had nothing to do with any disclosures. We did not know about them fully until the following year. Mark signed, and acknowledged that and has acknowledged [in his evidence] that he signed a copy of our house rules as read and understood but according to his own evidence he thereafter repeatedly broke both rules by taking out vans which he says he knew were not compliant with the temperature control rules which are set out in the house rules. Neither the Second Respondent nor the note taker were made aware of any disclosures before the meeting on 10th July 2024 at which the claimant was dismissed. Mark [the claimant] could have informed us [David Broadbent or myself the Directors] at any time of a refrigeration problem with the van then the Hazard Analysis Critical Control Points (“HACCP”) Team and myself would have thanked him and fixed it straight away. Mark could have contacted the Environmental Health Officer at any time to inform them of such problems particularly if he felt that nothing was being done about them. He could even have done this anonymously facing no consequences. He says now that he was concerned for the health and safety of customers but he chose not to do that. If Environmental Health Office had been informed they would have investigated and advised us and given us a Notice of Improvement which is common practice in the industry as those types of problem occur from time to time. Mark has an overbearing personality and has demonstrated that this week in court [the hearing]. This made the task of managing him a difficult one for a new Manager [Ashley McLaren] who resigned on the day that Mark was dismissed after he had reduced her to tears by continuing to refuse to take his breaks after being asked on 3 occasions. If Mark’s communication was better the problem of the van temperatures could have been resolved with one simply phone call which is what happened after Ashley was told that the Peugeot van did not come down to temperature. She immediately booked an engineer to come and fix it and there was no mention of the Peugeot van by Mark after that. Evidence I will discuss the evidence of the witnesses, highlight evidence which supports, highlight inconsistencies and weaknesses in the claimant’s case. I will endeavour to draw attention to them. For Manuel Santos He agreed that any part that he requested for maintenance duties was ordered straight away which proves my intention was to keep the vans in good order. Manuel agreed that he signed the group read and sign sheet two weeks after the claimant proving that the claimant was not singled out. Protected Disclosures A, B, C and F Manuel confirmed that he was never asked to falsify his run sheets by Ashley McLaren. Protected Disclosures A, B, C and F Manuel confirmed that he became aware of a problem with the Peugeot van in late winter over spring which lasted for about two to three weeks before he had fixed it. Regarding Detriment 3 [in the Table at page 80 of the claimant’s bundle] which the claimant says occurred at the end of February/start of March 2024 Manuel said that he witnessed the claimant approaching David Broadbent and asking him if ‘you know that the Waitrose food’ which the claimant says he was loading into the non refrigerated van which was to be used for the bread run, ‘was going to take the best part of 2.5-3 hours to be delivered?’ Manuel Santos confirmed that David did not answer but could not confirm that David had heard what was said, because he did not have David’s ears. The claimant does not say that he links Detriment 3 to any particular alleged protected disclosure. Regarding Protected Disclosures A, B, C and F [in the Table at page 75 of the claimant’s bundle, F being inserted by the claimant in the course of his evidence], Manuel stated that the Peugeot van ‘was struggling to get down to temperature but was not completely broken’. Regarding Protected Disclosures D, A, B, C and F, Manuel confirmed that he had signed the house rules but could not remember specifically when. Manuel did not know what made up the bulk of Waitrose fresh orders. He thought it was mostly ready meals whereas in fact it was mostly ambient produce with only 5% requiring refrigeration. Regarding the Rotas, Manuel confirmed that the staff schedules were done at least 3 weeks in advance but do not accurately reflect what van drivers actually did on any given day. He said ‘the runs get changed all the time’. He confirmed that when he left he stated to us that we were ‘nice people and decent employers’. Regarding Protected Disclosures B and C and Detriment 2C [in the Table at page 80 of the claimant’s bundle] Manuel confirmed that the relationship between Mark and Ashley McLaren had completely broken down with moaning from both sides. The Evidence of Gordon Velsian Protected Disclosure B and C and Detriment 2(C) Gordon stated that Mark [the claimant] had been spreading negative information about his Line Managers although he never passed that information on to anyone as he regarded it as just staff members’ thoughts. He confirms also the breakdown in the relationship between the claimant and the First Respondent. In relation to Protected Disclosures A, B and C, Gordon confirmed that the house rules policy:-  Frozen foods cannot be resold after defrosting due to the process of thawing and refreezing creating defects some of which were visible in the products. The Evidence of Sheree King Sheree King listed instances of Mark not working when he should have been which adds weight to the case that Mark was slower than other drivers and, even when cross examined by Mark, Sheree confirmed that he took impromptu breaks and distracted other busy staff who were dealing with deliveries that he had just made. Sheree confirmed that she received 5 oral complaints from different store managers about Mark’s conduct. Protected Disclosure A, B and C Sheree confirmed that Mark did not report any van faults to her despite she being part of the “HACCP” Team which stands for “Hazard Analysis and Critical Control Points” Team and despite his having carried out his house rules training with the claimant. Sheree also confirmed that Mark never brought up the subject during his improvement notice meeting despite that being a perfect opportunity for him to do so. Protected Disclosure E Sheree confirmed that Mark did not inform us in the meeting of 10th July and that he did not say what he said about Waitrose until after he was dismissed. Regarding Protected Disclosure F, Sheree confirmed that she accompanied Mark to his car when he showed her a video and offered to delete the video which he showed her and would not report the company to Waitrose or Environmental Health if he could keep his job. Protected Disclosure E, Detriments 5C, 8 and 9, Sheree confirmed that it became an emotionally charged meeting on the 10th of July after David had dismissed Mark when Mark then became very agitated and angry. It was only then that he said what is minuted at page 22 about what Waitrose will say and was about his refusal to follow the reasonable requests of his managers to take a break on three occasions and in trying to change the order of his run and arguing with his supervisor when told to load his van in the correct order and his conduct towards the Dismissing Officer and Operations Director of the company during the meeting. Protected Disclosure E, Detriments 5(C), 8 and 9 The person who dismissed Mark had not previously been informed and in the meeting were not informed about any matter of whistleblowing until after the claimant had been dismissed when comparing the Table of Complaints upon which the claimant founds. Against the agreed transcripts many inconsistencies and inaccuracies were found. Protected Disclosure E, Detriments 5(C), 8 and 9 Mark could not explain why he decided to change his run order despite having no knowledge of the fact that or his runs were routed in that way for a reason and why. Protected Disclosure A, Detriments 4, 5(A), 5(B) and 5(C), 6, 7, 8 and 9 The claimant has confirmed that he no longer relies on Detriment 4. On top of other means of communication available to Mark and he having already sent a text to David Broadbent he could have texted David Broadbent at any point to tell him about the problems which he is now complaining of but did not do so. Protected Disclosure E, Detriment 5(C), 8 and 9 The claimant stated that he did not like the tea or the water in the warehouse and again that he didn’t have enough money to buy a sandwich as reasons for refusing to take his break. There is nothing wrong with the water in the warehouse which is drunk by everyone and it is not the company’s responsibility to provide the claimant with a sandwich for his break. The company does supply suitable facilities in the warehouse for the taking of breaks and that is where employees, when working in the warehouse, which the claimant was doing at the time, should take their breaks in terms of their Contract of Employment. In relation to the claimant’s conduct, on his own evidence he can be seen never to have been happy during the incidents relied upon. When he was given an answer or a response which he did not want to hear, when examining witnesses, he frequently tried to substitute his answers for the witnesses when the witness’ answer was not what he wanted to hear, by making statements in response and trying to have the last word. On many occasions he started with the answer he wanted to hear before going on to ask the question. He continued to behave in this way even though asked several times and eventually directed by the Judge to stop doing it. When cross examining Ashley McLaren he talked over her answers on multiple occasions and was eventually cautioned by the Judge and asked “to treat the witness with respect”. This overbearing behaviour is an indication of what Ashley had to contend with during their working conversations and in particular on the 10th of July 2024 in relation to his not taking his breaks. Mark denied that he had a forceable personality but accepted that he liked to get his own way but even the transcripts of his own secretly made recordings prove that he spoke over his supervisor and managers when trying to change a van run and arguing with his Line Manager about wrapping products before it was removed from the freezer. Pages 65 and 66 in the respondent’s bundle – agreed transcript. Protected Disclosures A and F, Detriment 5(A) Mark asked questions and made false statements about the transcript when he was unable to prove “that there had been no response”. He said things like including reference to Waitrose when he was about to take out a van which he knew had no Waitrose product on it. He has said that he was concerned about public safety and believed it was in the public interest for that reason to make the statements which he now said were protected disclosures. He also has stated in evidence that he believed that the respondents had done nothing about his expressed concerns in April, May, June and up until he was dismissed on the 10th of July but while saying that he believed his employers were doing nothing to remedy the situation and suspected that some law might be being broken he took no steps to contact the police or report the matter to the Environmental Health Office thereby, as he put it, keeping his job and protecting his identity. But he could have reported the matter to the Environmental Health Office without disclosing his identity and thus could have protected his identity and since the respondents would not have known that it was he who had made the report he could have done so with no risk to his job and following an inspection by the Environmental Health Officers the problem could have been resolved, but he chose not to do so. His only explanation for not doing so was that things had improved a little in May however in June and July he says that he continued to have concern for the health and safety of customers and he believed that the respondents were not addressing the problem but took no action to have it addressed by anyone else. Submissions of the Second Named Respondent (David Broadbent, Operations Manager) Protected Disclosure A, 3rd of April 24 and Detriments 5(A) and 5(B)

[221]Detriment complained of is that on the 3rd of April I answered him in a harsh manner (Detriment 5(A)) and later in a further conversation answered him “gruffly” (Detriment 5(B)). In relation to the first detriment the transcript of his own secretly made recording makes clear in the first paragraph on page 61 of the respondent’s bundle that the claimant starts and ends what he describes as a conversation. It is only the claimant’s voice that is recorded. There is no evidence that I was even present at that point or close enough to hear anything that he might have said. There is no evidence of any response from me angry or otherwise. In relation to Detriment 5(B) the claimant alleges in his Table that I responded to him gruffly saying ‘do whatever is on your run sheet’. The agreed transcript of the claimant’s own secretly made recording shows that I did not say that but rather only said ‘just on your run sheet’. There is no evidence showing that I said that gruffly which I deny. In the Table at page 82 of the claimant’s bundle he deliberately misrepresents what the transcript shows me as saying in order to make it appear to be a detriment by including the first third of the sentence that is recorded and leaving out the other two thirds – at page 82 he says that Detriment 5(A) consists of the following ‘On the 3rd of April, when I made one of my protected disclosures to DB, he answered me in a harsh manner saying, ‘It’s nothing to do with you!’ The agreed transcript of the claimant’s own secret recording shows that what I actually said was ‘It’s nothing to do with you, don’t worry about it, yeah, you’re just delivering the product’. There was nothing harsh about that, I was reassuring the claimant that if there was a phone call from the manager of the Gullane factory, it wasn’t something that he should worry about as his responsibilities were restricted to delivering the product and if I did receive a phone call from the store manager it would be for me to respond to it. Detriment 6, 29th April, Improvement Notice This was why the claimant was asked to come into my office to discuss the matters that are set out in the Improvement Notice in the contemporaneously completed handwritten and signed copy of the Improvement Notice which appears at page 126 of the claimant’s bundle and in the typed up copy which appears at page 20 of the respondent’s bundle. The purpose of the Notice was to help the claimant improve. The decision to issue the Notice was ultimately taken because of the claimant’s responses in the meeting and the concern that he did not understand or accept the requirements to carry out his runs and driving duties as directed, and concern that he might continue to make changes to his runs as he saw fit. Since he was in the office he was also asked to sign the recently issued Group Read and Sign Notice which all drivers were to sign in relation to accurately completing their run sheets. He did not sign it on that occasion saying he didn’t have time and would sign it later. Two days later when he was speaking to his Line Manager she asked if he had signed the read and sign sheet. At the time when he signed it on the 1st of May 2024, three other drivers had already signed the copy which he signed. Mark was not deliberately singled out by being asked to sign the group read and sign sheet when he was already in my office to discuss the matters itemised in the Employee Improvement Notice. There is no evidence of any such deliberate singling out. On the 29th of April when both I and Sheree King, the company HR Officer were present in a private meeting in my office would have been a good opportunity for the claimant to bring up the concerns which he now says he had at that time over the health and safety of customers and to make us aware of the health and safety problems that he referred to today in his submissions particularly as it may have been concern about such matters which impacted on his performance of his duties, but the contemporaneously completed Employee Improvement Notice makes clear that while the claimant made a response to all of the concerns expressed by his managers at no point did he make any reference to the matters which he later says he made protected disclosures about. Detriment 7, 1st of May The group read and sign sheet was one which was addressed to all relevant staff including all drivers. It was not directed to any particular individual. Detriments 5(C) and 8 – 10th July Meeting What the claimant asserts were detriments in the Table at page 84 (Detriment 5(C)) and page 86 Detriment 8 did not occur. I did not say those things. The Minute of the Meeting contemporaneously taken by Sheree King, the HR Officer and typed up by her within 2 hours which are produced at pages 21 and 22 of the respondent’s bundle contain no record of me saying such things. Both I and Sheree King confirmed in evidence that the Minute was an accurate record of what was said does record the claimant saying ‘I wonder what Waitrose will say when they find out how we get their products to our stores and what state they arrive in’ and my response that that was not a matter which we had been discussing at the meeting and it was irrelevant to ‘this conversation’. It shows that exchange taking place only after I dismissed the claimant and confirmed his understanding that he had been dismissed and the reason for that decision being the matters which the Minute records, we had been discussing namely, the claimant’s conduct in refusing on four occasions to comply with the reasonable requests of his managers in relation to work matters and his conduct towards me, his employer, in the course of the meeting, which resulted in me concluding as I am noted as saying on page 22 when I dismiss him ‘I really don’t feel like this is the job for you Mark, I am therefore issuing you with a week’s notice from today’. I believe I carried out a reasonable investigation into the claimant’s refusal to carry out the reasonable requests and directions of his manager. Having heard from and read Ashley McLaren’s written account of the events I was satisfied that he had refused to do what she had asked him on three separate occasions that morning. In my capacity as a Company Director and in the presence of another member of the management team I witnessed the claimant attempting to deviate from his set van run and his argumentative response to his supervisor; and, given the responses which he made in the meeting, as set out in the Minute, to his failure to comply with these requests and his conduct during the meeting I concluded that I could not have confidence in him as a continuing employee and I took the decision to dismiss the When I saw the claimant was going to pack the pallets in his van in the wrong order I spoke to Mr King and said ‘That’s in the wrong order’. He in turn said to the claimant ‘That’s in the wrong order’ but instead of confirming that he would load the pallets in the correct order, the claimant immediately responded by saying ‘I want to take it this way because the girls from Warrender Park have asked me to deliver in a different order so I’m going to take it in a different way’. I witnessed him arguing back with his supervisor and I stepped in to bring that argument to a conclusion and to make sure that the pallets were loaded in the correct order. Page 136 of the claimant’s bundle is a HACCP inspection of the Lasswade stores standards. It is not a communication tool. It is not an auditable document. It is the wrong place for the comment that the claimant is referring to. It is not the place to put that comment. The correct response is a follow up HACCP visit and appropriate follow up training. The store manager should have reported the matter to me at the time. That is the correct procedure which is noted in the house rules but that procedure was not followed by the store manager. It should then be recorded in the correct place and an inspection generated to deal with it together with remedial training. There is no basis for the claimant’s speculation that the direction to move the comment to its correct place amounts to a cover up. Separately it is not a matter which the claimant has given any notice of as being one of the detriments in his Table or in the issues which were agreed at the beginning of the hearing. Sheree admitted not replying to the claimant’s emails after his dismissal for the reasons given by her, that she felt intimidated and overwhelmed by them and was uncertain of how to respond as they contained untrue statements about the meeting of the 10th of July with the claimant stating in the emails that he said what he said about Waitrose before he was dismissed whereas she knew, and had minuted that he only made that statement after he had been dismissed. The Evidence of Ashley McLaren Protected Disclosure F, 23rd April [inserted in the Table at page 75 in the course of the hearing] and Detriments 1(A), 1(B), 2(B), 2(C), 5(C), 6, 7, 8, and 9. Ashley confirmed that Mark did not mention that the van was not getting down to temperature until the 23rd of April 2024. Prior to that date he had only mentioned a broken pipe which took water away and wasn’t essential to the working of the refrigerating unit. She believed that it was a pipe which could be reattached. Ashley confirmed that sending out fresh deliveries in the ambient vans should have occurred only during the cooler months. She conceded that she should have, and had failed to stop it, in May because she was under such stress. In relation to the staff schedules [the copy rotas at pages 105 to 125 in the claimant’s bundle] Ashley confirmed that it was the van run sheets which were used to confirm the allocations for the day and the loads for dispatch and not those cut and paste templates. Those cut and paste templates were posted on the notice board at least three weeks in advance. She just cut and pasted in from previous months because her principal purpose in putting them up was so that staff, including drivers, could see what days and what shifts they were to come in to work. Ashley believed that using the run sheets as opposed to the staff rotas documents, which specify the particular loads and the particular runs on each day, was the most effective and efficient way for her to manage the van runs and that was how she did it. When a new manager took over she felt that a pasted illustration would help him understand, although the van run sheets were still the actual method of dispatch allocation. The main reason the rotas which were produced by the claimant were displayed on the notice board for drivers to see was to ensure that we had sufficient staff members at the correct times to fulfil the needs of the business. By looking at the posted sheets drivers knew when they were to be in to work. The van rotas were tweaked day by day by Ashley, sometimes by the supervisors and from time to time by the drivers and the loaders themselves. In relation to Protected Disclosure A [3rd April in the Table at page 75 of the claimant’s bundle] Ashley confirmed that she did not inform David Broadbent that there were possible van runs going out which did not comply with the company rules and procedures, which confirms that he did not know about any such matters. Regarding Protected Disclosures A, B, C and F Ashley stated that it was not company policy to take out vans which did not meet the house rule requirements and that she was never instructed to avoid refrigeration repairs or to break the rules by the HACCP Team, by the Operations Team or by any of the Directors. Ashley confirmed that she never asked Mark to falsify his run sheets at any time. Ashley confirmed that the drivers were not aware of the products which they may be delivering and that deliveries could be and were changed by her as Line Manager, or by the supervisor, to suit the refrigeration needs of the products requiring delivery. Protected Disclosure E and Detriment 2(C), the 10th July Incident and Meeting Ashley stated that it was closer to 9:30 when she first asked Mark to take a break. He had started at 6 am. He was working in the warehouse at that time and it was something that she was entitled to ask him to do and something which he was contractually obliged to do, if asked, in terms of Clause 5.2 of the claimant’s Contract of Employment. She confirmed that she asked Mark if he would like [which she explained was rhetorical] to take his break on the first occasion on which she asked him to do so, but became more insistent on the second occasion and that by the third occasion he could have been in no doubt that she was telling him to take his break. When asking him to take his break she had explained that the load which he was to take out was not yet picked and that by taking his break at that point the goods which he was to deliver would have been picked and loaded for him by the time he finished his break and he could go straight out on his run. The claimant responded by saying that he would occupy himself in the warehouse crushing cardboard rather than take his break. He did not comply with the request that he take his break. Some time later Ashley had seen the claimant not crushing cardboard but in a different part of the warehouse talking to another member of staff who should have been working on another task. She asked the claimant on a second occasion, more forcefully, to take his break. The claimant responded by saying he didn’t like the water in the warehouse and or that he had no money on him to buy a sandwich. He did not take his break. Ashley approached the claimant on a third occasion, telling him to take his break. He again declined to do so. Ashley felt he was undermining her openly. She felt tears beginning to well up, and she did not want to let the claimant see that he had reduced her to tears and so she turned and walked away from him as the tears began to flow and went to speak to David Broadbent about what had occurred in tears. David asked her to write down the details while they were still fresh in her mind. During her discussions with David Broadbent, when she returned to give him the note of what had happened with the claimant, she told him that she no longer wanted to continue in the job of Warehouse Manager and that the main contributory factor to her wishing to resign from that position was the continuing disrespect shown to her by Mark. She had said in evidence when being cross examined by Mark about the state of her mental health that she had been and was under a great deal of stress at the time and that ‘you [the claimant] were the cause of 90% of my stress’. Ashley confirmed that Mark was asked to take his break by her so that it would coincide with down time for the picking of goods and the van which he was to take out could [concurrently] be loaded and made ready during his break time. Ashley stated that Mark always liked to get his own way in the warehouse and would often talk over her instructions and generally did not listen to her point of view. She felt intimated by Mark. Ashley also stated that Mark was slower [on his delivery runs] than other drivers. He did not understand why decisions [about runs] were made in a certain way. Protected Disclosure A and Detriment 3 In the Table at page 80 of the claimant’s bundle, at the end of February or March Ashley confirmed that at that time any chilled deliveries put on a bread run would be given priority for first drop and also that outside temperatures were within the house rules in those months [see Order to specify or delete this detriment]. Mark’s Evidence [the evidence of the claimant] Protected Disclosures A, B, C and F The claimant said he could not remember signing the house rules but he accepted that he did. The rules say that he should return any loads or refuse any refrigerated van runs where the temperature exceeds the house rules of 0.5 to 8◦Celsius. He acknowledges that he signed the house rules and on his own evidence then did not comply with them. Protected Disclosures A, B, C The claimant admitted that he could not remember the rules for temperature control. In relation to Protected Disclosure E, Detriments 5(C), 8 and 9 Mark says he felt a detriment but could not explain his overbearing nature and his refusal of four reasonable requests by his managers in the same day. Regarding changing the van run he agreed that he was trying to do that when David King and David Broadbent spoke to him. Instead of doing the run in the order in which the goods had been picked he said that he intended to pack the van differently because he was going to do the run differently. Instead of accepting that he should not do that when told that the pallets were in the wrong order he began to argue with the supervisor so that David Broadbent who was also there had to intervene to stop the argument and make sure that the van was loaded in the correct order for the delivery. In relation to not taking his break in the warehouse on the 10th of July he admitted that he decided on what jobs he would do in the warehouse. He told Ashley McLaren, his supervisor, that he would keep himself busy in the warehouse instead of doing what his supervisor first asked him and then told him to do. When questioned, Mark confirmed that he had no knowledge of why the company routed its vans in a certain way; in order to service its stores correctly; and to schedule the times of deliveries at particular stores so that the managers could ensure that they had sufficient staff working to receive and process the deliveries and to avoid vulnerability to shoplifting and attack when there was a shortage of staff to process deliveries. Protected Disclosures B and C, Detriment 2(C) In the Table at page 80 of the claimant’s bundle – ‘AM then got angry with me for declining her offer to take my half hour break early, at a point in time that was considerably less than half way through my working day’. Mark never had a reply when asked why he seemed happy to hold the company to its procedures but wasn’t prepared for his part to comply with reasonable requests of his managers which they were entitled to make in terms of his Contract of Employment. He did not challenge Ashley McLaren’s explanation that after his third refusal to take his break she turned and walked away from him without arguing further in order to prevent him seeing that he had reduced her to tears. Protected Disclosure B and C, Detriment 2(C) Mark admitted that he refused to take his break on three occasions on the 10th of July and that the second and third “requests” were more forceful than the first. Protected Disclosures B, C, A and Detriment 7 in the Table at page 85 of the claimant’s Bundle Mark admitted that he understood the purpose of a group read and sign instruction, and he had no answer when questioned and it was put to him that three other drivers had signed the copy which he signed before he signed it proving that he was not singled out in that regard. He also accepted that on the 29th of April he was called into the office for another purpose, namely to discuss complaints that he was slow in making deliveries and spent too much time chatting to staff once he had made the deliveries, and to be issued with a Performance Improvement Plan and that it was when he was in the office, for that purpose, that he was also asked to sign the group read and sign notice, this shows that he was not singled out by being asked to sign the group read and sign notice when in David Broadbent’s office. Protected Disclosure A and Detriment 4 The claimant confirmed in evidence and in submission that he no longer relied upon Detriment 4 but he had separately admitted after claiming that David Broadbent had not replied to the text which he sent him at 5 am in the morning that in fact David Broadbent had replied to the text indicating that he would give him a more full reply when he next saw him, which he did. Protected Disclosure E, Detriment 5(C), 8 and 9 [the meeting of 10th July 2024] Mark tried on 8 or 9 occasions to push through as part of an agreed transcript a transcript said to be of a particular recording even though he knew that he had no such recording at the time of trying to include it in the agreed transcript. He admitted resending what bore to be a transcript of a version of the dismissal meeting on 8 occasions despite my refusing to include it and pointing out that I could not agree a transcript for which I had not been provided with a recording. The claimant did not reveal until later that he did not have a recording of what he said was a transcript. This is an example of the claimant trying to force his agenda in relation to a potentially crucial element of evidence because by doing so he thought it would greatly help his case. Protected Disclosure E, Detriment 5(C), 8 and 9 in the Table of Complaints Despite eventually admitting that he did not have a recording of the 10th of July meeting he nevertheless included what he says was a transcription made by him from a secret recording which he has never produced to the respondents or the Tribunal and which the respondent has always objected to. The respondent’s note taker and David Broadbent, the other two persons at the 10th July meeting have continued to deny the version of events which the claimant sought to represent as a transcript of a recording which he would produce and have continued to confirm that the Minute of the Meeting made by Sheree King is accurate. Protected Disclosure E, Detriment 5(C), 8 and 9 At the end of the Minute of the Meeting of 10th July at page 22 of the respondent’s bundle, the real reason for the claimant’s dismissal is set out:- ‘MS: So, you are telling me I have been dismissed? DB: Yes, based on what we have just discussed’ What ‘we have just discussed’ is clearly set out in the Minute and all relates to the claimant’s refusal to take his breaks to comply with direction regarding loading order and his conduct during the meeting. Discussion and Disposal of the Issues The

Evidence

[222]The Tribunal accepted the evidence of Sheree King as both credible and reliable including, in particular, her evidence as to the dismissal meeting of 10th July and as to the accuracy of the Minute of that meeting, and being extended by herself within 2 hours of the end of the meeting, from contemporaneous notes made by her in its course.

[223]The claimant’s position in evidence was that as much as 95% of the Minute of the Meeting prepared by Ms King had been fabricated by her, the account given by him in evidence being one which differed substantially from that recorded in the Minute. In response to that proposition put to her by the claimant in cross examination, Ms King remained adamant as to the accuracy of the Minute and very clear that the differences between the Minute and the claimant’s account could not be put down to mere differing recollections.

[224]Although readily conceding that she found the claimant to be overbearing and intimidating, she did not depart from her account of matters given during her evidence in chief in the course of cross examination by the claimant.

[225]The Tribunal found the evidence of David Broadbent (the 1st respondent’s Operations Director, the Dismissing Officer and the other person present at the dismissal meeting of 10th July) to be both credible and reliable. Mr Broadbent gave his evidence in a clear and unambiguous manner both in relation to what transpired and was said respectively by himself and by the claimant at the 10th July meeting and, in respect of the order in which statements were made respectively by the claimant and by himself at the meeting of 10th July 2024 and, in relation to the alleged protected disclosures assertedly made to him by the claimant firstly on the 3rd of April 2024 and on 10th July 2024 in the course of the dismissal meeting.

[226]The Tribunal accepted the evidence of Sheree King and of David Broadbent as both credible and reliable preferring it, over the evidence of the claimant in relevant matters of fact in which the claimant’s evidence on the one hand and that of Ms King and or Mr Broadbent were in conflict. In relation to the meeting of 10th July 2024 the evidence of Ms King and of Mr Broadbent coincided and each was consistent with the contemporaneously prepared Minute on the one hand, on the other hand the claimant provided no evidential basis other than his own oral and ? assertion for his assertion that the Minute of the 10th July meeting was 95% fabricated by Ms King. The claimant had at an earlier stage in proceedings sought to have the 1st respondents agree an alternative version of the meeting which he maintained was a transcript made by him of a clandestine recording of the meeting, again made by him. When pressed to produce the recording, for the purposes of comparison with the transcript, the claimant eventually conceded that no such recording was within his possession.

[227]Otherwise, the claimant’s evidence ranged frequently beyond the scope of the issues which were at the outset of the hearing confirmed by all parties and recorded by the Tribunal to be the issues requiring investigation and determination.

[228]Where relevant, other than where it has found in fact to the contrary, the Tribunal found the evidence of the claimant insufficient to discharge his burden of proof in respect of establishing the essential matters of fact which required to be established were his complaints to succeed. In particular in relation to the reason for his dismissal the Tribunal considered that the claimant had failed to establish, on the balance of probabilities, that the reason for his dismissal was that he had made any of the alleged disclosures, protected or otherwise relied upon by him for the purposes of his section 103A Automatic Unfair Dismissal claim.

[229]The Tribunal considered that the respondents, for their part, had established, on the balance of probabilities;(a) that neither Sheree King nor David Broadbent had any knowledge of the matters allegedly disclosed by the claimant prior to David Broadbent taking the decision to dismiss and dismissing the claimant on the 10th of July 2024, that the reason for the 1st respondent’s dismissal of the claimant at

(b) the hands of the 2nd respondent was a reason wholly unconnected with any of the alleged disclosures relied upon by the claimant, the dismissal being for reason of the claimant’s conduct, including his conduct on the 10th of July of; (i) repeatedly refusing to comply with the reasonable requests and direction of his Supervisor to take his break, (ii) his arguing with a Senior Supervisor in relation to the correct order in which goods which he was to deliver were to be loaded onto his vehicle, (i) the unsatisfactory nature of the explanations of his conduct given by him in the course of the 10th July meeting and, (ii) his conduct towards David Broadbent, his employer, in the course of that meeting.

[230]The combination of the above culminated in the conclusion, on the part of David Broadbent, that there had occurred an irretrievable breakdown of the confidence and trust necessary to the sustainment of the employee employer relationship in consequence of which he decided to and dismissed the claimant there and then.

[231]There was no evidence presented which went to show that David Broadbent had seen the claimant’s run sheet or had been made aware of his earlier alleged Disclosure A prior to his dismissing the claimant. Separately and in any event there was no evidence presented which went to show, on the balance of probabilities, that his decision to dismiss the claimant was linked to Disclosure A.

[232]The Tribunal considered that the claimant had failed to establish that the respondents had deliberately decided to single the claimant out in asking him to sign the Group Read and Sign Notice when meeting with him on the 29 April.

[233]Otherwise, where relevant, the Tribunal considered the evidence of the claimant to be insufficient to discharge his burden of proof in respect of establishing the factual elements necessary to the success of his complaints including in particular, establishing a causal connection between any of the disclosures relied upon which the Tribunal had found in fact occurred and were protected, on the one hand, and any of the alleged detriments other than dismissal which the Tribunal found to have occurred, on the other, let it be assumed that the same fell to be regarded as constituting detriments for the purposes of section 47B of the ERA. The claimant made clear, in terms of the submissions made by him on the evidence, that in relation to the question of causal connection his position was restricted to that of belief based entirely upon speculation on his part as to motive on the part of the respondent.

[234]For the avoidance of doubt the Tribunal makes clear that it did not consider that the evidence before it supported the making of primary facts from which such a causal connection, in the absence of any explanation to the contrary, might be inferred.

[235]The Tribunal found the evidence of Ashley McLaren to be both credible and reliable. Ashley McLaren readily conceded in both examination in chief and in cross examination that she found the claimant’s attitude towards her as her Supervisor to be intimidating, upsetting, publicly undermining of her authority and harmful to her mental health such that, following the incident of 10th July, during which the claimant repeatedly refused to follow her directions and reduced her to tears, she advised David Broadbent that she no longer wished to continue in the role of Warehouse Supervisor.

[236]Ashley McLaren accepted in evidence that on the 23rd of April 2024, in the course of an exchange with her the claimant made a statement which had the effect of disclosing to her that the refrigerator unit in the Peugeot delivery van was not operating such as to maintain temperatures within the 1st respondent’s house temperature rules and, that having understood that she immediately made a call seeking engineering assistance to have it fixed. She further candidly accepted that by May of 2024 external ambient temperatures were becoming consistently higher than the band of House Rules temperatures and, at that time, she should not have allowed any deliveries of chilled or refrigerated food to be made on a vehicle in which the refrigeration unit was not functioning such as to maintain the van temperature with House Rule parameters. In so far as she may have failed to do so, she conceded that that was a matter in respect of which her judgment was at fault, attributing the same to the state of her mental health at the time.

[237]The Tribunal accepted Ashley McLaren’s evidence that she had not, at any time advised David Broadbent, Iain Wells or Sheree King of the disclosure made to her by the claimant on the 23rd of April, and that neither had she passed on to Iain Wells, David Broadbent or Sheree King any concerns that the claimant may have expressed about the operation of the refrigeration units in any of the vans.

[238]The claimant, for his part, provided no evidence that such communication between Ashley McLaren and Iain Wells, David Broadbent or Sheree King had in fact occurred. He accepted in cross examination that he was not in a position to do so and that in inviting the Tribunal to hold that David Broadbent and Sheree King had such knowledge he was speculating.

[239]On balance, the Tribunal preferred the evidence of Ashley McLaren to that of the claimant on relevant matters in which their accounts were contradictory. Disposal of the Issues

[240]Issue (First) which of the asserted disclosures relied upon by the claimant did the claimant make; and Issue (Second), which, if any, of such disclosures as the claimant made, were qualifying and protected disclosures made in terms of sections 43A, B and C of the ERA.

[241]Which of the alleged disclosures relied upon by the claimant did the claimant make.:- Disclosure A – 3rd April allegedly made orally to David Broadbent – (i) “frozen food being delivered in vans that’s refrigeration unit was not functioning”

[242]On the evidence presented the Tribunal held that the claimant had not established that such a disclosure had been made to David Broadbent on the 3rd of April 2024.

[243]While the transcript produced, of the clandestine recording made by the claimant, bears to show the claimant speaking the words set out in the first paragraph on page 61 of the respondent’s bundle which words, if established as having been effectively communicated to David Broadbent, had the potential, subject to further clarification, to amount to a protected disclosure, there was no evidence presented which went to show that David Broadbent had heard and or understood all or any part of the statement. In particular the transcript of the clandestine recording records only the claimant speaking and thereafter indicates that the recording continued for 12 seconds without any dialogue. The evidence of David Broadbent was that he had no recollection of the claimant making any such statement to him, that he was not in the warehouse in order to meet with David Broadbent or any of the other group of persons mentioned, but rather passed by that group in the discharge of his own duties which required him to walk continuously on a route throughout the warehouse in order to carry out certain operational checks.

[244](ii) Alleged Protected Disclosure B – 15th April 2024 allegedly made orally to Ashley McLaren “frozen food being delivered in van that’s refrigeration unit was not functioning”

[245]The Tribunal held that the words appearing in the transcript of the clandestine recording at page 64 of the respondent’s bundle were effectively communicated by the claimant to Ashley McLaren and, in the circumstances, did constitute a protected disclosure in terms of sections 43A, B and C of the ERA.

[246](iii) Protected Disclosure C – 23rd May 2024 allegedly made orally by the claimant to Ashley McLaren – “frozen food being delivered in van that’s refrigeration unit was not reaching the correct temperatures”; viz, (a) The Tribunal found that the statement set out in the first paragraph of the transcript of the clandestine recording appearing at the first paragraph on page 67 of the respondent’s bundle viz “MS – just to say that Citroen’s not … I’ve written it down anyway, but it doesn’t seem to be getting down to temperature at all.” were effectively communicated by the claimant to Ashley McLaren on the 23rd of May 2024 and did constitute a protected disclosure in terms of section 43A, B and C of the ERA.

[247](iv) Protected Disclosure D – 27th June

[248]The Tribunal found that the claimant and Ashley McLaren had had an exchange of WhatsApp communication, on the 27th of June, in the terms set out in the screen shot copied and produced at page 68 of the respondent’s bundle. That screen shot is referred to for its terms which are here held incorporated by reference for reasons of brevity.

[249]The Tribunal considered that the words founded upon by the claimant did not constitute a disclosure of information tending to show, amongst any others, that the “health or safety of any individual has been, is being or is likely to be endangered”. The Tribunal found that the claimant had not established that the communication constituted a protected disclosure in terms of sections 43A, B and C of the ERA.

[250](v) Alleged Protected Disclosure E – 10th July said to be made orally by the claimant to David Broadbent in the course of the dismissal meeting of 10th July 2024 – “raised above issues regarding unsafe food delivery and that nothing was being done”

[251]The Tribunal held that the claimant had failed to establish that such a disclosure was made by him to David Broadbent in the course of the hearing. [Findings in Fact 75 to 92 refer]

[252](vi) Alleged Protected Disclosure F – 23rd April 2024 said to be made orally by the claimant to Ashley McLaren – “MS – well, I’ll wrap these two just now (in the freezer), but it makes no odds because the freezer in the van doesn’t work anyway. AM – since when? MS – I’ve told you about it the last couple of weeks. I told you the pipes totally … it’s been weeks it’s not been working. AM – Aye, but no one’s actually said it doesn’t come down to temperature. MS – No, I said it’s not working at all. The pipe has totally unravelled … it’s not remotely chilled. So, it kind of doesn’t make much difference for this.”

[253]The Tribunal found that these words were spoken and effectively communicated by the claimant to Ashley McLaren on the 23rd of April and, that those statements constituted a protected disclosure in terms of sections 43A, B and C of the ERA. Automatic Unfair Dismissal

[254]Issue (Third) “What was the reason, or if more than one the principal reason for the respondent’s dismissal of the claimant and, in particular, was the reason, or if more than one the principal reason for the dismissal that the claimant had made one or more of the asserted disclosures relied upon by the claimant and which the Tribunal has found in fact:-(a) Was/were made; and

(b) Was/were a qualifying and protected disclosure(s) and, thus was the claimant Automatically Unfairly Dismissed in terms of section 103A of the ERA?

[255]The Tribunal has found that the claimant has failed to discharge his onus of proof such as to establish that he was dismissed for the section 103A ERA reason; and, separately, that the respondent has established that the claimant was dismissed for reason of his conduct [Findings in Fact 75 to 92 refer]; and that the section 103A ERA complaint of Automatic Unfair Dismissal falls to be dismissed.

[256]Issues (Fourth), (Fifth), (Sixth) and (Seventh) – section 47B ERA

[257]Issue (Fourth) Which of the matters given notice of by the claimant as being asserted detriments did the Tribunal find occurred and constituted detriments i.e. (“relevant detriments”); and Issue (Fifth) – which of the relevant detriments given notice of and established was the claimant subjected to by the 1st and or the 2nd respondent, all contrary to the provisions of section 47B of the ERA. Issue (Sixth) – which if any of such relevant detriments as were suffered by the claimant was he subjected to on the ground that he had made one or more protected disclosures; and Issue (Seventh) – had the claimant established between each of the detriments, if any which are found to have occurred on the one hand and any of the alleged protected disclosures which are found to have occurred, on the other hand the causal connection required by section 47B of the ERA.

[258]In relation to the asserted detriments, other than dismissal, which the claimant gave notice of as being relied upon and which are recorded at paragraph 13 above, on the evidence presented, the Tribunal considered:-(a) Detriment 1(a) was not established

(b) Detriment 1(b) did not constitute a detriment for the purposes of section 47B of the ERA in the circumstances

(c) Detriment 2(a) was not established and separately and in any event would not, in the circumstances, have constituted a detriment for the purposes of section 47B of the ERA

(d) Detriment 2(b) in relation to asserted Detriment 2(b) neither the alleged peremptory (demanding) nor “haranguing” nature of a request made by Ashley McLaren was established

(e) Asserted Detriment 2(c) was not established

(f) Asserted Detriment 3 in so far as it was alleged that David Broadbent “ignored me when I tried to speak to him at work” and, let it be assumed that David Broadbent had informed the claimant that “no overtime would be paid at weekends to drivers, regardless of how long they took to do their shift”, which the Tribunal has not found in fact was said, that such a statement would not, in the circumstances have constituted a detriment for the purposes of section 47B of the ERA

(g) Asserted Detriment number 4 was not relied upon by the claimant and departed from by him in the course of the hearing.

(h) Asserted Detriment 5(a) the alleged “harsh manner” of David Broadbent’s response was not established, the alleged words relied upon were not an accurate reflection of the actual words spoken by David Broadbent, the words relied upon, when taken in the context of the whole sentence in which they appear, did not constitute a detriment for the purposes of section 47B of the ERA

(i) Detriment 5(b) the alleged gruff characterisation of David Broadbent’s response was not established, the asserted words relied upon were not an accurate reflection of the words spoken. The actual words spoken by David Broadbent did not in the circumstances constitute a detriment for the purposes of section 47B of the ERA

(j) Detriment 5(c) was not established

(k) Detriment 6; in relation to Detriment 6 that the asserted “accusatory” manner in which the matter was said to be focused was not established, and that otherwise, the raising of such a concern in the context of a “Performance Improvement Meeting” did not in the circumstances constitute a detriment for the purposes of section 47B of the ERA

(l) Asserted Detriment 7; that being asked by his managers to countersign a copy of the Performance Improvement Plan at the conclusion of the Performance Improvement Meeting on 29th April 2024 did not, in the circumstances, constitute a detriment for the purposes of section 47B of the ERA

(m) Asserted Detriment 8 was established to the extent of the claimant being called into a meeting [of disciplinary character] without prior notice and without opportunity to be accompanied, did constitute a detriment for the purposes of section 47B of the ERA but, in so far as relating to there being “issues raised with me asking too many questions” was not established and, separately and in any event, would not, in the circumstances have constituted a detriment for the purposes of section 47B of the ERA

(n) Asserted Detriment 9 was established and did constitute a detriment for the purposes of section 47B of the ERA.

[259]On the evidence presented the Tribunal considered that the claimant had failed to establish that any of the alleged detriments which he had asserted he had been subjected to had occurred on the ground that he had made one or more protected disclosures relied upon.

[260]Separately, the Tribunal considered on the evidence presented, that the claimant had failed to establish, let it be assumed that such detriments had occurred on the one hand and that a protected disclosure had occurred on the other hand, the causal connection between the two which is required by the terms of section 47B of the ERA.

[261]Asserted Detriment 1(a) Ashley McLaren ignored me when I tried to speak to her at work – on the evidence presented the Tribunal considered that the claimant had failed to establish the occurrence of the alleged acting.

[262]Alleged Detriment 1(b) – on the 23rd of April 2024 after I had made a further enquiry over the refrigeration unit’s repair at one point she shouted at me ‘I have already told you that an engineer is coming out’

[263]On the evidence presented the Tribunal held that the claimant, in the form asserted, had failed to establish the occurrence of that event. The exchange in question does not appear in the transcript of the claimant’s clandestine recording of the exchanges between himself and Ashley McLaren on the 23rd of April 2024. There was no evidence, other than the claimant’s bald assertion which was balanced by Ashley McLaren’s denial, that she had “shouted at” the claimant. Separately, and in any event, the Tribunal would not have considered that Ashley McLaren advising the claimant that she had already told him that an engineer was coming out in response to his enquiry about the refrigeration unit’s repair would, in the circumstances, have constituted a detriment for the purposes of section 47B of 264. 2(a) – end Feb/March 2024 “AM seemed irritated with me when I told her about Waitrose chilled goods being scheduled for delivery ….. she told me that they didn’t have room in other vans and walked off”.

[265]On the evidence presented the Tribunal considered that the claimant had failed to establish the occurrence of such an event. Separately, and in any event, the Tribunal would not have considered Ashley McLaren’s de-escalating an argumentative exchange with the claimant, by turning and walking away from it, to have constituted a detriment in circumstances where the claimant appeared to be in conflict with her and to be challenging her authority as his Supervisor.

[266]Alleged Detriment 2(b) – 29th of April/1st of May – “I felt like I was increasingly being singled out by Ashley McLaren for speaking out about public health and safety issues. Around that time I was told by John Kevan (driver) to ‘watch my back’. It was Ashley McLaren that demanded that I sign declarations whilst other drivers were not harangued in an equal manner.”

[267]On the evidence presented the Tribunal considered that the claimant had failed to establish the occurrence of such an event. Separately, the Tribunal would not have considered Ashley McLaren, in her capacity as Supervisor, asking the claimant, a driver, to sign the read and group sign notice which all drivers were required to sign, to have constituted a detriment in terms of section 47B of the

[268]Alleged Detriment 2(c) – 10th July 2024 -“Ashley McLaren got angry with me for declining her offer to take my half hour break early …”

[269]On the evidence presented, the Tribunal considered that the claimant had failed to establish that Ashley McLaren had “got angry with me”. The Tribunal accepted Ashley McLaren’s evidence which was to the effect that she became increasingly frustrated and intimidated by the claimant’s repeated refusals to take his break as instructed by her and by his public undermining of her authority as his Supervisor, such that his conduct reduced her to tears. The Tribunal did not consider that Ashley McLaren’s said reaction in the circumstances, constituted her subjecting the claimant to a detriment in terms of section 47B of the ERA.

[270]Asserted Detriment 3 – end February/March 2024 – “David Broadbent ignored me when I tried to speak to him at work” Ignored my text message and did not discuss its detail later at work Treating me rudely Accused me of asking too many questions

[271]In the course of his evidence and submission the claimant departed from and withdrew his reliance upon the alleged detriment of David Broadbent ignoring his text message, accepting in evidence that he had in fact responded to it. Otherwise the Tribunal considered, that on the evidence presented, the claimant had failed to establish the occurrence of the alleged conduct on the part of David Broadbent.

[272]Alleged Detriment Number 4 In the course of his evidence and submission the claimant departed from and confirmed his non reliance upon alleged detriment number 4.

[273]Alleged Detriment Number 5 – 3rd of April – “David Broadbent answered me in a harsh manner saying “It’s nothing to do with you”

[274]On the evidence presented the Tribunal considered that the claimant had failed to establish the alleged acting on the part of David Broadbent including in particular that he had answered the claimant in a harsh manner. The transcript of the clandestine recording made by the claimant and produced at page 62 of the respondent’s bundle shows that what David Broadbent actually said was “It’s nothing to do with you … don’t worry about it … yeah … you’re just delivering the product.” There is nothing recorded in the transcript which went to indicate David Broadbent answered the claimant “harshly” which position is also contradicted by the evidence of David Broadbent which was that in answering the claimant he did not speak to him harshly or gruffly but rather, was seeking to reassure him that the matter was not one that he need be worried about as his responsibility extended only to delivering the product. He, David Broadbent, separately explained in evidence that the issue in question was not in truth an issue, the frangipanes being in the category of “thaw and sell”, but in any event any such phone call received would be dealt with by him and was not something that the claimant need be concerned about.

[275]Alleged Detriment 5(b) – 3rd April “in the warehouse when I raised with David Broadbent [who happened to be there on other business], a query regarding a proposed delivery, he answered me gruffly ‘you do whatever is on your run sheet’”

[276]The Tribunal considered on the evidence presented that the claimant had failed to establish the occurrence of that conduct on the part of David Broadbent. The transcript of the clandestine recording made by the claimant of exchanges between himself and other individuals on the 3rd of April show that what David Broadbent actually said by way of response was “just on your run sheet”. The Tribunal considered that the making of such a response to a query initiated by the claimant about his run did not, in the circumstances, constitute David Broadbent subjecting the claimant to a detriment in terms of section 47B of the ERA. There was no evidence other than the claimant’s bald assertion, denied by David Broadbent, that went to show that the tone of David Broadbent’s response was gruff.

[277]Alleged Detriment 5(c) – 10th July 2024 – “in our meeting of 10th July 2024 which culminated in dismissal, DB brought up the subject of me asking too many questions of him. I answered DB saying that any questions that had been asked by me, had only been asked out of politeness and the protocol in place that required his own personal authorisation.”

[278]On the evidence presented, the Tribunal considered that the claimant had failed to establish the occurrence of such acting on the part of David Broadbent. [Findings in Fact 75 to 92 refer]. The Minute of the 10th July meeting, which the Tribunal has accepted as an accurate record of what occurred, contains no reference to such an exchange between David Broadbent and the claimant.

[279]Alleged Detriment 6 – 29th of April 2024 – “Ashley McLaren accused me of being too slow with some of my deliveries”

[280]On the evidence presented the Tribunal considered that the claimant had failed to establish the occurrence of that conduct on the part of Ashley McLaren the transcripts of clandestine recordings made by the claimant and relied upon by him do not include any such exchange. On Ashley McLaren’s evidence, which the Tribunal accepted as credible and reliable, the Tribunal found that Ashley McLaren had received complaints from a number of Store Managers to the effect that the claimant was slower than other drivers in making his delivery runs and spent too much time in the stores having made his runs, on occasions distracting staff from their other duties. Those concerns formed part of a Performance Improvement Plan which was discussed with the claimant at a meeting with David Broadbent, Ashley McLaren and Sheree King at the Performance Improvement Meeting of 29th April 24. The Tribunal separately considered that the raising of such concerns with the claimant by his Managers in the context of a Performance Improvement Plan did not constitute subjecting the claimant to a detriment in terms of section 47B of

[281]Alleged Detriment 7 – 29th of April-1st of May 2024 – “I was asked to sign documents [countersign a copy of the Performance Improvement Plan] which had a note appended to it that disciplinary action would be taken if issues occurred again.”

[282]On the evidence presented, the Tribunal held that the claimant had been so asked in his performance improvement meeting which proceeded with David Broadbent in the presence of Ashley McLaren and Sheree King on the 29th of April 2024, to also sign the Group Read and Sign driver’s Notice. The Tribunal considered that the claimant had not established that being asked by his Managers, in the course of the meeting of 29th April or, following his refusal to sign it, again on the 21st of May 2024 being a request made in the legitimate exercise of their managerial duties, to sign a copy of the same notice in the same terms which all drivers were required to sign, constituted subjecting the claimant to a detriment in terms of section 47B.

[283]Alleged Detriment 8 – 10th July 2024 – “called into a meeting without prior notice and without opportunity to be accompanied and issues raised with me asking too many questions.”

[284]While the Tribunal has not found, on the evidence presented that issues were raised with the claimant about asking too many questions in the meeting of 10th July 2024, it has found that on that date the claimant was called into a meeting without prior notice and with out the opportunity to be accompanied. The Tribunal has also found given the disciplinary character of the meeting that in having the claimant convened to the meeting without prior notice and without affording the claimant the opportunity to be accompanied would constitute the subjecting of the claimant to a detriment in terms of section 47B of the ERA, let it be assumed that the claimant had been so convened to the meeting on the ground that he had made a protected disclosure.

[285]The Tribunal has found in fact that the claimant was not convened to the meeting on the ground that he had made any disclosure, protected or otherwise, but rather on the grounds of his conduct including in particular his conduct towards his Supervisor Ashley McLaren on the morning of 10th July 2024.

[286]In the circumstances the Tribunal considered that the claimant has not established in his being convened to the meeting of 10th July 2024 without opportunity to be accompanied and without prior notice that he had been subjected to a detriment for the purposes and in terms of section 43B of the ERA.

[287]Alleged Detriment Number 9 – “Sheree King refused to respond or to progress my appeal”

[288]The Tribunal has found in fact that Sheree King did fail to progress the claimant’s Grounds of Appeal against his dismissal submitted by him to her on the 14th of July 2024. The Tribunal has also found that at the conclusion of the meeting of 10th July at a point after which the claimant had been dismissed and the reasons for his dismissal confirmed to him, the claimant stated:- “I wonder what Waitrose will say when they find out how we get their products to our stores and what state they arrive in.” The Tribunal has found in fact that that statement, which the claimant in any event denies making, did not constitute the making of a protected disclosure in terms of sections 43A, B and C of the ERA. Separately, and in any event, the Tribunal has found in fact that the reason for Sheree King’s failure to progress the claimant’s Grounds of Appeal of 14th July was her concern that they contained statements of fact which she knew to be false and which, as well as feeling intimidated by the claimant, she was reluctant to progress without first being able to consult and take advice from her Reporting Director Iain Wells who was, at that time, on annual leave. The claimant having failed to establish a causal connection between his being convened to the 10th July 2024 meeting without prior notice and opportunity to be accompanied, on the one hand, and any alleged and established protected disclosure on the other, the section 47B complaint in so far as relying on asserted Detriment 9, fails.

[289]Issue (Eighth) – “Has the claimant discharged the burden of proof necessary to the establishment of his complaints under section 103A and section 47B of the ERA.”

[290]The Tribunal considered, on the evidence presented, that the claimant had failed to discharge the burden of proof, incumbent upon him, and necessary to the establishment of his complaints under section 103A and or section 47B of the

[291]Issue (Ninth) – “To what remedies is the claimant entitled, in the event of one or more of his complaints succeeding.”

[292]None of the claimant’s complaints having succeeded, the issue of remedy does not arise and is accordingly not dealt with here.

[293]For the sake of completeness the Tribunal observes;(a) In circumstances where having secured his new employment the claimant immediately took a career decision to remain in that employment notwithstanding continuing net wage loss of £31.82 per week, and ceased, at the same point in time, to make any effort to obtain alternative employment which might remunerate him at the same rate as enjoyed by him in his previous employment, the Tribunal considered that continuing loss beyond that decision point and resulting from the salary differential, was not loss sustained by the claimant in consequence of the dismissal in so far as that loss might have been attributable to action taken by the 1st respondent.

(b) In those circumstances the Tribunal would not have considered, in the event that the complaint of Automatic Unfair Dismissal had succeeded, that the claimant would have been entitled to a compensatory award for future loss beyond the initial 5 week period ending with his decision to remain in the new employment secured by him at that time. Summary of Disposal

[294]On the basis of the above Findings in Fact, of the submissions made and for the reasons set out the Tribunal holds that the claimant has failed to discharge his onus of proof in respect of establishing that the reason, (or if more than one), the principal reason (for his admitted dismissal by the 1st respondent at the hands of the 2nd respondent on 10th July 2024 was that he had made a protected disclosure and that, accordingly, the claimant’s complaint of Automatic Unfair Dismissal in terms of section 103A of the ERA 1996 falls to be dismissed.

[295]That the claimant has failed to discharge his onus of proof in establishing that he was subjected, at the hands of the 1st and or the 2nd respondent, to detriments other than dismissal on the ground of having made one or more asserted protected disclosures in terms of sections 43A, 43B and 43C of the ERA; and that accordingly, his complaints of having suffered detriment in terms of section 47B of the ERA fall to be dismissed.