Mr F W Mboungueng v Utilities Design and Planning Ltd: 2400949/2022

Case Number: 2400949/2022
Claimant: Mr F W Mboungueng
Respondent: Utilities Design and Planning Ltd
Venue: England and Wales
Hearing Date: 25 October 2024
Judge: Employment Judge Mellor
Claimant Representative: Mr F Wandji Mboungueng
Respondent Representative: Mr Irving, solicitor
Compensation: £23,790,000
Jurisdiction: Breach of ContractPublic Interest DisclosureRace DiscriminationUnfair DismissalandUnlawful Deduction from Wages

Judgment

The judgment of the Tribunal is that: 1. The claim for wrongful dismissal is dismissed upon withdrawal, the claimant accepted he had been paid notice. 2. In so far as there was an ‘ordinary’ unfair dismissal claim under section 98 Employment Rights Act 1996 that is dismissed for lack of jurisdiction; the claimant had less than two years’ service. 3. The remaining of the claimant's claims are not well founded and are dismissed. These are: a. Harassment under section 26 Equality Act 2010 b. Direct Discrimination under section 13 Equality Act 2020 c. Detriment because of making a public interest disclosure under section 47B Employment Rights Act 1996 d. Dismissal because of making a public interest disclosure under section 103A Employment Rights Act 1996. e. Unauthorised deduction from wages under section 13 Employment Rights Act 1996. Case No. 2400949/2022 2 _____________________________ Employment Judge Mellor Date: 25 October 2024 JUDGMENT SENT TO THE PARTIES ON 30 October 2024 FOR THE TRIBUNAL OFFICE

11 words remaining

Reasons

unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. --- Case No. 2400949/2022 1 EMPLOYMENT TRIBUNALS Claimant: Mr F Wandji Mboungueng Respondent: Utilities Design and Planning Ltd HELD AT: Manchester On: 16,17, 18 September 2024 and 24 October 2024 BEFORE: Employment Judge Mellor Ms A Booth Mr D Lancaster REPRESENTATION CLAIMANT: In person RESPONDENT: Mr Irving, solicitor JUDGMENT having been sent to the parties on 30 October 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided: REASONS Introduction 1. The claimant issued his claim on 14 February 2022 against his former employer Utilities Design and Planning Ltd. The claim was case managed by EJ Ross on 21/7/22. Although the claimant was absent from that hearing EJ Ross was able to distil most of the claims into a list of issues and made orders for the claimant to provide additional information for the parts of the claim that were less clear. The matter was listed to a final hearing in person. 2. The claimant complied with that order providing responses to the list of further information required. 3. Thereafter, neither the parties nor the tribunal had prepared a composite list of issues for us to consider at the final hearing. Therefore we spent a substantial amount of time on the morning of day 1 going through the list of issues to make sure that we all knew what the claims were and on what basis the claims were being put. I produced a list of issues for the parties to consider as a consequence of the discussions. Both sides agreed with the list, as set out below in these reasons. Case No. 2400949/2022 2 4. At the start of the hearing the claimant raised with concerns about the respondent witnesses being present in the tribunal room and said that he feared for his safety. He did not rely on any specific incident or allegation, but he explained that he did not feel safe if they were all in the tribunal. Whilst we held preliminary discussions the respondent witnesses were asked to leave the room, but it was explained to the claimant the principles of open justice and that these proceedings are public. The tribunal had not heard any specific reason why the witnesses ought to be excluded and there was nothing about the facts of this case which would, on the face of it, require participation directions. However, in order to ensure the claimant was in a position to best give evidence and applying the overriding objective the tribunal took the step of arranging a screen so that the claimant could not see, or be seen by, the respondent witnesses. 5. We were provided with a bundle of 138 pages. The respondent made an application for some further documents to be added which it said were directly relevant to the claimant’s credibility. Given this case largely turned on one parties version over the other we admitted those documents. They were whatsapp messages, Link’d In Profile of the claimant and a decision of the tribunal in another claim brought by the claimant. 6. We heard oral evidence from the following witnesses: the claimant (and we read statements he had provided from Tracey Chapman, David Moyo and the claimant’s wife). From the respondent we heard Mr Richardson, Mr Atherton, Mr Croft and Mr Walmsley. 7. We concluded all the evidence in the 3 days originally listed, but we needed an additional day to hear submissions, deliberate and deliver a decision we did so on the 24 October 2024. Overview of the witnesses 8. The tribunal’s role is to find the facts of the case to then apply those facts to the law. Some of the facts in this case are agreed, but there are other key pieces of evidence that are in dispute including comments made (as per the harassment and direct discrimination claims) and in respect of the validity of some documents with both parties alleging forged or fabricated documents (the grievance and Leigh Derbyshire’s exit interview). We therefore took some time to consider the evidence individually as well as the wide canvass of evidence from which we have drawn a view of the witnesses. At all times we have applied the civil standard of proof – that is whether it was more likely than not to have occurred. We also reminded ourselves of the burden of proof. Although the burden in discrimination claims can shift, the initial burden on whether comments were made is on the claimant. 9. The respondent witnesses did make concessions where appropriate. Notably the respondent accepts a large part of the factual background, Adam Richardson accepts that he acted inappropriately and unprofessionally. The respondent largely accepts that the claimant did raise concerns as per the whistleblowing claim. They have not taken the opportunity to deny those Case No. 2400949/2022 3 conversations ever happened. Their evidence was not undermined by the contemporaneous documents. 10. We found the claimant was an unreliable witness for the following reasons: He was evasive in answering questions, he challenged Mr Irving on the relevance and content of the question even after we had assured him that we would intervene if the questions that were being asked were irrelevant or inappropriate. On one occasion he refused to answer a question and at other times he said he could not recall. When he did give answers, such as in relation to the meeting with Jawad, we found them to be confusing and often contradictory. He was not a clear historian. His witness statement was lacking in detail in respect of all bar 3 incidents. We therefore took his pleadings to be statements of fact too, but even there he had not really set out detail. When he added to his evidence in the witness box it was not consistent with is pleaded claim. For example, he initially suggested everything was ok in the first 3 months whilst on probation. He later said that it was intimidating and racist from the outset. 11. Further we found he has been dishonest in respect of broader matters including: a. LinkedIn: The dates of employment did not add up. His LinkedIn profile [136] says he was employed by the respondent until March 2022 – this is not right he was dismissed on the 22/9/21. b. He was employed as ‘Senior Commercial Manager’ [57] but his linked in profile says he was ‘Commercial Director’. When asked about that he said that he was doing the work of Commercial Director which is why he put that on his profile. We found that he was being deliberately misleading. c. The claimant was extremely evasive when answering questions in respect of another claim he has brought in the tribunal. Whilst we judge this claim on the facts of this case and the evidence before us, we did find it relevant that, according to the written reasons of the decision in British Gas, the claimant was still employed, but on sick leave at the same time he came to work for the respondent (see para 8.6 of that decision). There was no other way of reading it. But the claimant was not prepared answer that question – he said that he could not say yes or no as to whether he was on sick leave. d. He was, on the face of it, being managed for long term sickness absence with up to 6 health reviews in a role at British Gas whilst also working at the respondent where he claims he was working up to 80 hours per week. That is a stark inconsistency, and we find the claimant was not being honest about it either. 12. Whilst we have reminded ourselves that there can be many reasons why a witness is, or appears to be, dishonest (including fear, embarrassment, or being unfamiliar with legal processes memory and distrust of the system) overall our impression of the claimant as that he was not being honest with us about the central facts of this case. Where there is a dispute of fact between the respondent witnesses and the claimant’s witnesses we have preferred the respondent. Case No. 2400949/2022 4 13. There are other examples of evidence we find supports our judgment, but I will address those as I set out the specific findings. The Facts. 14. The below are the salient findings made by the tribunal to reach its decision. It is not meant to be a recital of all the evidence we have heard and where we have not referred to a specific piece of evidence it should not be taken as an indication that we did not consider it. References in square brackets are references to the pages in the bundle. 15. The claimant commenced employment at the respondent on 4/1/21 [57] his job title was Senior Commercial Manager. His salary was £60,000 plus a company car. Relevant contractual provisions for the purpose of our decision include: a. Clause 6 Hours of Work: “Your normal working hours are as set out at the front page of this contract. However, you are required to work such hours as are necessary to complete your duties without additional pay (unless specifically agreed in advance in connection with any entitlement to overtime pay). b. The claimant’s hours of work were “between 7.00 and 16.30 Monday to Friday totalling 42.5 hours per week with an unpaid lunch break of 60 minutes”. c. Clause 23 Termination of Employment: “The company reserves the right to make a payment in lieu of notice for all or part of your notice period upon the termination of your employment (rather than you working your notice period).” 16. The Respondent provides design installation and management services to utilities, local authorities and private developers. They employed around 60 employees across three depots. 17. The Respondent had a disciplinary and grievance policy which provides that a formal grievance should be submitted “in written format providing as much detail as possible. Key facts such as dates, times and witnesses would be helpful”. 18. The respondent has an Equality, Diversity and Inclusion Policy. It also has a separate whistleblowing policy which provides that complaints should be raised with the Director in the first instance or the Chief Executive. If neither of those are appropriate, then the matter can be raised with the Chairman [114]. 19. The claimant was recruited through an agent. He was interviewed by Dave Atherton, Phil Croft and Jawad Munir through a Teams interview. They were very impressed with the claimant at the interview and even though the claimant was less qualified than the other, white, candidate, the respondent liked the claimant and offered him the role. 20. The role of the claimant required him to work closely with the operations manager Adam Richardson. They could be described as on the same horizontal line in the business. As it was described to us the claimant was the Case No. 2400949/2022 5 person who made sure the contracts were correct and he complied with the rules and regulations (the commercial side), Adam Richardson was the one who got the job done (operational delivery). Clearly, they needed to be able to work together for the operation to succeed. 21. It is agreed by all parties that the claimant and Adam Richardson did not get on. 22. Although the respondent says there were some issues with the claimant’s performance early on, such as lack of attention or preparation, they did not directly raise performance as an issue with the claimant. At no time was he put on a performance management program or similar. 23. Whilst the claimant repeatedly alleged during the hearing that he was being accused of poor performance and thought the respondent was asserting that as the reason for his dismissal we could not find any evidence that was true. The respondent did point to some matters of the claimant’s performance that they felt was below expectations but attributed that to his inexperience. They may have had to address the issues further down the line, had they not improved, but it was the interpersonal skills that were a bigger concern. 24. The claimant inherited a subordinate member of staff called Breandan Doyle. It is agreed by all that Brendan was not doing his job particularly well and the claimant, as his line manager, placed him on a PIP which ran through February 2021 to around April/May [123]. 25. In March 2021 at a virtual teams meeting there was an argument between the claimant and Mr Richardson. This was caused by a disagreement over the content of a document and whether it contained information that didn’t belong there. Mr Richardson raised this, and the claimant said he had been told to put it in the document by Mr Richardson. Both parties became angry but Mr Richardson shouted “show me the fucking email where I told you to put that in the document”. 26. Mr Richardson swore, but he did not use any language that related to race. He did not say the N word or reference the claimant’s ethnicity (I will explain further why we preferred Mr Richardson later in these reasons). 27. Around May 2021 the claimant was reminded that there needed to be an improvement in civils commercial management as there were still issues with the sales ledger not being up to date, AfPs late, CTC/CVR not always up to date and Debtor days were rising [117] that was not so significant to cause the respondent to escalate matters. 28. Brendan was replaced by Leigh Derbyshire who was moved on in May/June 2021. The reason she was moved on was because she could not work with the claimant. The respondent undertook an exit interview with Leigh on 4 June 21 [67]. This is a document the claimant says is fabricated because (a) they don’t do exit interviews and (b) because she was an agency worker not an employee. Case No. 2400949/2022 6 29. We find that the document is genuine. Firstly because it is supported by the email at [117] dated 28/5/21, and reads “Franklin wanted 5 mins with me just now to discuss Leigh leaving. I said the reason states is that she can’t work with you any more”. Secondly it has the ring of truth about it when we considered the claimant’s own evidence. He did not think that Leigh was good at her job. Mr Atherton had explained to the claimant that Leigh was a junior QS and she didn’t have the skills to do what the claimant was asking and that was when they agreed to phase her out and bring in another member of staff, this fits with her description of not being supported in the exit interview. It is more likely than not that this is a genuine document. 30. Therefore, we accept that Leigh stated she was made to feel uncomfortable by the claimant and questioned her intelligence and her knowledge [69]. In answer to the question are there any concerns we should be aware of she said “Franklin’s behaviour, I think his interactions should be monitored – especially 1:1” The reason she cited for her leaving was “Issues with my direct management (Franklin Wandji)” She also explained “He made me feel very uncomfortable on many occasions especially in our 1:1 meetings where my knowledge about basics and my intelligence were questioned”. 31. In May 2021 there was a conversation in the office between the claimant and Leigh in which he asked her if she had her CSCS card. Mr Richardson, uninvited, asked the claimant if he had one. The claimant ignored this question. That the claimant ignored it is indicative of the poor working relationship they had at this time. 32. There were up to 8 other individuals in the office at the time. 33. We find that Mr Richardson did not say “you fucking fat Nigger who do you think you are to boss white people around”. 34. The claimant did not put this allegation (or the previous allegation from March) in writing in any form. By May the claimant was out of his probation period. He describes having experienced racism before and he is prepared to make enemies in standing up for himself, but he did not raise a grievance or even note it in writing at this point. Given the nature of the language alleged we find this is surprising. Even more so as the claimant is an intelligent man who has experience of employment tribunals and so would be aware of the purpose of grievances and the importance of evidence. 35. It is also the claimant’s case that there were several people, up to 8, who would have been witness to this conduct. Therefore there would have been witnesses who could have been interviewed as part of a grievance. The lack of the claimant raising these allegations and naming potential witnesses we find is stark. 36. Towards the end of May and into June the claimant was put on a management course. He was not told why, and the respondent says that it was with a view to helping improve his management styles and the way he Case No. 2400949/2022 7 interacts with his colleagues. Other senior staff had been on the course before and knew it helped with soft skills and so thought that might be good for the claimant. 37. At that time because of the poor relationship between the claimant and Mr Richardson the respondent would like to have sent Mr Richardson on the course as well, but they could not justify the expense. 38. In June 2021 (although the exact timing of this is unclear) Dave Atherton asked Jawad Munir to meet with both the claimant and Mr Richardson to clear the air. The claimant said he did not ask Mr Atherton to arrange this, but he agreed to it. The claimant says he did allege he had been subject to racist abuse at this meeting. 39. We find the meeting was to clear the air, and to try and bring the two colleagues together so they could repair the relationship. We find that the claimant did not allege race discrimination at this point. 40. It is more likely than not that if he had have raised it, he would not have been expected to sit in the room and ‘clear the air’ with a man accused of such overt racism. There is no evidence to suggest that such language was the norm in this place of work; the claimant has not to us suggested that it was perceived as ‘banter’ and common place. We find the fact that this meeting was arranged by Mr Atherton indicative of them trying to resolve a poor working relationship between two colleagues and not to resolve more serious conduct. 41. Further there is nothing in writing to support what the claimant alleges, he has not expressed any of it in emails at the time, or in any written grievance, even the one dated 21/6/21. 42. Which brings us on to the 21/6/21 allegation that the claimant did raise a grievance but that was ignored. The grievance is a written document [127]. The claimant says he hand delivered this to Dave Atherton and kept a hard copy for himself. The claimant confirmed that he meant he handed it directly to Mr Atherton in person, rather than placed a copy on his desk (or elsewhere) for him to find. 43. We find this to be a lie: a. The policy does not require it to be done in this way [108] and he told us in evidence that he was following a policy of reducing emails by sending it hard copy. b. The policy does require as much detail as possible key facts dates and witnesses should be named [108] the claimant did not put any real detail in the document at [127] in fact he only references 1 incident and then does not set out what occurred in that incident. c. If he did hand deliver it on 21/6/21 it is incredible that he did not chase it up. There is no evidence of anything having happened one way or the other between June and September 2021. On 17/9/21 Case No. 2400949/2022 8 the claimant emails [82] but does not mention anything about the grievance. d. Given the nature of the email at [82] we find that if he did wish to raise a grievance it is more likely than not he would have done so by email not hand delivering it and he would certainly have chased it up or written to complain that it had not been progressed,. e. We note what is said by the respondent about the type face of this document and that it looks suspicious, and we would be inclined to agree. But even without that we simply don’t believe the claimant sent this when he claims he did. All the contemporaneous documentation suggests no such grievance was raised. 44. Had the claimant not alleged that he hand delivered it, it would have been open to us to conclude that it had simply been missed or got lost (although we would still have wondered why he didn’t chase it up), but making such a clear assertion against the background of the facts we have found, it leads us to the logical and inevitable conclusion that the claimant has manufactured the document to support his claim. 45. The claimant’s evidence was that he hand delivered it to Dave Atherton who took it and said he was going to look into it. 46. We find that had Dave Atherton been given it he would have investigated it. We make that finding because when the claimant did raise other issues (such as the allegations of VAT and retention money) Dave Atherton did follow it up. There is no reason to think he would not do the same if the claimant had raised such serious allegations of race discrimination. 47. On 17/9/21 there was a disagreement or argument between the claimant and Mr Richardson. This was around both wanting to speak with Mike Lamb and also an email exchange in which the claimant accused Mr Richardson of micro aggression. In relation to Mike Lamb Mr Richardson felt that the claimant rudely interrupted and so he ‘shut that down’. This appears to be another occasion where the two clashed and the claimant felt like he had been treated equally poorly. 48. At 10:50 on the 17/9/21 replying to an email of 19/8/21 in which the claimant copied in Time Walmsley, Dave Atherton and Phil Croft the claimant says: “While I thought some of your behaviour improved, you carry on with micro and full blown aggressions, one this morning, thee other in the ops office and below”. The reference to ‘below’ is the following “Frankin, If Mike is busy, please can you action this immediately please. Works are to be carried out Saturday 21/8/21”. The claimant was complaining of the use of the word ‘please’ twice as being a microaggression. 49. What struck us was that this is said by the claimant to have taken place after a campaign of overt racist behaviour and comments, yet he completely fails to state anything about his race in this exchange. Indeed, the only apparently offensive language seems to be the use of the word please twice in one sentence. Case No. 2400949/2022 9 50. Consequently Mr Walmsley had to speak to both of them [71] we note of this email in particular that Mr Walmsley said this: “Franklin and Adam have had another “disagreement” this morning, which has taken an hour out of my day and also had Phil involved. Quite childish between them and neither sees the relationship as ever being repaired”. 51. It is inherently unlikely and unbelievable that Mr Walmsley would use that language to describe the nature of the abuse the claimant claims took place. 52. We find the allegation that Adam Richardson racially abused the claimant on the 16/9/21 is not made out. 53. After 17/9/21 Tim Walmsley and Phil Croft decided the situation could not continue. On 23/9/21 a protected conversation took place at which the claimant was offered the choice of resigning or being dismissed. We note that either way that would be a dismissal but accept that the respondent was giving the claimant the opportunity to say it was his decision to leave. 54. We find the reason the respondent decided to put those options to the claimant was because they could no longer put up with the impact of the relationship between the claimant and others, particularly Mr Richardson. We noted that when Mr Atherton said in evidence that the claimant also clashed with Leigh Phil and Tim the claimant did not dispute that. 55. From the evidence we heard it is clear the claimant had a poor relationship with Leigh Derbyshire, Adam Richardson and had started to deteriorate with Phil Croft and Dave Atherton too. 56. Given he had less than two years' service, they did not go through any formal procedure. 57. The claimant did raise with Dave Atherton issues relating to staff building driveways at a loss to win bids, and that the business was involved in dishonest practices such as not paying back retention money. When the claimant mentioned it to Mr Atherton he asked Phil and Tim about it and recalled the claimant had also asked about getting a driveway done. Mr Atherton asked Phil about the drive way that was done for his mum, but that it was done to keep the staff busy rather than furlough them. 58. There was an ongoing conversation about Hickton and the claimant did ask about the administrators wanting some money back, but this was a discussion about commercial practice. Mr Atherton asked him to go back and check the records to cost up the work that had been done. In fact, it was left to the claimant to handle the situation. 59. Whilst Mr Atherton did describe the claimant as getting involved in things that did not concern him, he meant they were minor things, and they played no part in the decision to dismiss him. Any issues with performance were minor and could have been resolved. Case No. 2400949/2022 10 60. On 24 September 2021 the claimant was dismissed with three months’ pay in lieu of notice. It offered the claimant a right to appeal, but he did not do so. 61. The claimant claims unpaid overtime, but he has not set out how that is calculated in his statement or what his claim is based upon. The only evidence we have about his hours is an email he sent Phil Croft and Tim Walmsley on 25 May 2021 in which he said: “Please don’t be alarmed if I work a little late every now and then. It’s because I am scheduling revision time in my working days and may need to work late to compensate and/or achieve my outputs for the day. I thought I would let you know to ensure that you are not concerned by my health and wellbeing” [72]. There is no evidence that he worked over his 42.5 hours, or that he had prior authority if he did so. The Issues In respect of the discrimination and harassment claims the claimant identifies his race as Black African. 62. Harassment section 26 Equality Act 2010 on the grounds of the Claimant’s race. Did the respondent do the following things: a. At a virtual Teams meeting in March 2021 Adam Richardson out of nowhere started shouting ‘show me when I sent you that information’ when the claimant tried to calm him down he kept shouting and started swearing using sentences such as “fucking nigger”, “fucking useless nigger” show me where I sent you that information. This happened in front of the civil director, Phil Croft who did not intervene. b. CSCS Card May 2021. The claimant asked one of his direct reports to train and pass her CSCS card so she complied with H&S regulations when site visiting. Out of the blue the operation manager Adam Richardson stepped in and asked if the claimant had his own CSCS ; he ignored his question and started talking to a different colleague about commercial matters. As the claimant ignored Adam Richardson, he shouted across the floor I am talking to you “fucking fat Nigger” who do you think you are to boss white people around. He carried on shouting, I removed myself from the situation. Again, this happened in the presence of the civil director, Phil Croft, who did not intervene or say a word. c. In June 2021 In a brief reactive commercial catch up, the operation manager, Adam Richardson, advised that he gave away some revenue, the claimant challenged him by asking whether he signed that off with management, he straight away started shouting. Some word included, I don't need your approval, you “Fat African fuck” I don't know what you are doing here, this is not a place for you, I don't know who recruited you. d. On 21 June 2021 the claimant escalated the treatment to management by raising a grievance. He (a) complained that each time he interacted Case No. 2400949/2022 11 with the operation team he was racially abused, disrespected and called names by Adam Richardson and (b) he was called the “N” word, shouted at and dismissed whereas white commercial colleagues did not receive the same treatment. The respondent failed to address his concerns. Tim Walmsley, Dave Atherton and Phil Croft are all identified as having failed to take action. e. On 16/9/21 the claimant was racially abused by Adam Richardson, he shouted at the claimant and called him the “N” word out of the blue following a team meeting where he challenged commercial decisions which were taken without management approval. The Claimant asked Mr Richardson why such a decision was taken without engaging with Management and Mr Richardson started shouting, calling him the “N” word saying “you would be out of here in no time” incompetent “N” word. f. 16/9/21 having raised his concerns to Dave Atherton, Time Walmsley instead of them taking appropriate action the claimant was called to a meeting where he was told he had two options, resign or be sacked. g. 22/9/21 the Claimant was dismissed with no procedure having been followed. h. The Managing Director, Tim Walmsley, made the following comments or questions (unspecified dated, it happened regularly): i. Comments on my private registration plate; ii. Several comments on my accent; iii. On several occasions commented on my race and background and made the claimant feel uncomfortable. iv. At meetings Adam Richardson would make monkey noises each time I spoke, Tim Walmsley would make funny faces each time others made monkey noises, and on many occasions mocked the claimant by mimicking his accent in front of colleagues at the boardroom, his office, the civil office and the claimant’s office. 63. If so was that unwanted conduct? 64. Did it relate to the claimant’s race? 65. Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. 66. If not did it have that effect? The tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Direct Discrimination 67. Did the respondent do the following things: a. The claimant asserts the matters set out at paragraphs 1.1 to 1.9 above are incidents of direct discrimination. b. Was that less favourable treatment? Case No. 2400949/2022 12 The tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. The claimant relies on Neil Woodworth, Brendan Doyle and Paul Bray as comparators. In the alternative the tribunal will decide whether the claimant was treated worse than someone else would have been treated (hypothetical comparator). c. If so, was it because of the race? Protected Disclosure 68. Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The tribunal will decide: the claimant says he made disclosures on these occasions: a. In June 2021 he verbally raised with Dave Atherton and in an email to the Office of Fair Trading, that the business is dishonest and would cheat their clients. The claimant advised Dave Atherton he should refund Amey for the error the business made on the invoice. The invoice included VAT, all the senior leaders advised to keep the VAT. The claimant advised this was dishonest and that it must be returned. b. Towards the end of his employment, no later than 17/9/21 the claimant raised verbally with Dave Atherton and in an email to the Office of Fair Trading that the respondent was involved in bribery and corruption: i. Building the drive way of the MD of one our clients where we had submitted a bid at a loss ii. - Building the driveway of a senior managers at Winvic for free to win more works at Winvic iii. - Free driveways for several Senior managers for clients where bids were submitted iv. - the business gets involved in dishonest practice such as cooking the book to avoid paying back retention to bankrupt suppliers - Hickton v. - Culture of corruption supported by senior management using words such as that's normal in our industry c. Did the claimant disclose information? d. Did he believe the disclosure of information was made in the public interest? e. Was that belief reasonable? f. Did the claimant believe it tended to show that: i. A criminal offence had been, or was likely to be committed? And or Case No. 2400949/2022 13 ii. A person had failed or was likely to fail to comply with any legal obligation? g. Was that belief reasonable? h. Was the disclosure made to his employer or the Office of Fair Trading? I.e. was it a protected disclosure? Detriment section 47B i. Did the respondent subject the claimant to a detriment because he made a protected disclosure? The claimant says he was treated differently in particular that he was excluded from conversations and meetings. Dismissal section 103A j. Was the reason or principal reason for the claimant’s dismissal because he made a protected disclosure? Unauthorised deduction from wages. 69. Did the respondent make unauthorised deductions from the claimant’s wages, and if so how much was deducted? The claimant says he worked overtime. He says that he worked 80 hours per week, his contractual hours were 42.5 hours per week. The Law Harassment 70. Section 26(1) EqA provides: - A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— i. violating B's dignity, or ii. creating an intimidating, hostile, degrading, humiliating or offensive environment for B. 71. Section 26(4) EqA sets out factors which tribunals must take into account: - (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect. 72. Section 212(1) EqA provides that conduct amounting to harassment cannot also be direct discrimination. 73. The Court of Appeal in Richmond Pharmacology v Dhaliwal [2009] IRLR 336 stated:- “an employer should not be held liable merely because his Case No. 2400949/2022 14 conduct has had the effect of producing a proscribed consequence. It should be reasonable that that consequence has occurred. The claimant must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created, but the tribunal is required to consider whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so….We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.” Direct Discrimination 74. In respect of direct discrimination, Section 13(1) of the EqA provides as follows: A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. 75. Section 23(1) of the EqA deals with comparisons, and provides:- On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case. 76. The EAT in Chief Constable of West Yorkshire v Vento [2001] IRLR 124 made clear that using examples of individuals who were not true comparators was a proper way of constructing a hypothetical comparator. 77. The burden of proof provisions (which apply equally to harassment) are set out in section 136 EqA 2010:- (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. Case No. 2400949/2022 15 78. When considering direct discrimination, the tribunal must examine the “reason why” the alleged discriminator acted as they did. This will involve a consideration of the mental processes, whether conscious or unconscious, of the individual concerned (Amnesty International v Ahmed [2009] IRLR 884). The protected characteristic need not be the only reason why the individual acted as they did, the question is whether it was an “effective cause” (O'Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School and anor [1996] IRLR 372) Whistleblowing Whistleblowing Detriments 79. The Employment Rights Act 1996 (“ERA”) provides as follows in relation to protected disclosures: Section 43A 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 Section 43B (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) 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. 80. Section 47B ERA provides in relation to detriments: (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. 81. The authorities stress the importance of the tribunal taking a structured approach to determinations relating to protected disclosures. As set out in Williams v Michelle Brown AM UKEAT/0024/19 “First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.'' Case No. 2400949/2022 16 82. There must be a disclosure of information, that is to say the conveying of facts, and it is not sufficient for the claimant simply to have made allegations Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38. However, a disclosure may contain sufficient information to qualify for protection even if it includes allegations. The question of whether there is sufficient information will be a matter of fact for us taking into account context and background Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436. 83. In terms of the public interest element, in Chesterton v Nurmohamed [2017] IRL 837 the Court of Appeal set out factors to be considered by a tribunal in deciding whether there was a reasonable belief a disclosure was made in the public interest. They are the numbers whose interests the disclosure serve; the nature of the interests affects; the nature of wrongdoing disclosed; the identity of the alleged wrongdoer. Where a disclosure raises questions of a personal character, the question of whether it is reasonable to regard it as being in the public interest is to be answered by considering all of the relevant circumstances of the case. Dobbie v Felton [2021] IRLR 679 held that a disclosure relevant to one person could nonetheless be in the public interest. 84. In order to bring a claim under section 47B ERA the worker must have suffered a detriment. This must be judged from the point of view of the worker. “There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment. The concept is well established in discrimination law and it has the same meaning in whistle blowing cases” (Jesudason v Alder Hay Children's NHS Foundation Trust [2020] EWCA Civ 73). However, an unjustified sense of grievance cannot amount to a detriment (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337). 85. The tribunal is to determine the reason why the claimant was treated as he was, which requires an analysis of the mental processes, conscious or unconscious, which case the employer to act as they did. It is for the employer to prove that the act complained of did not materially influenced the employer’s treatment of the whistleblower (Fecitt v NHS Manchester [2011] EWCA Civ 1190). In Derbyshire v St Helens Metropolitan Borough Council [2007] ICR 841 the House of Lords observed that it would be difficult to imagine circumstances where an “honest and reasonable” action by an employer could amount to a detriment. Automatic Unfair Dismissal 86. Section 103A ERA provides that “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if Case No. 2400949/2022 17 more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”. 87. The “reason” for the dismissal “connotes the factor or factors operating on the mind of the decision-maker which causes them to take the decision.” Beatt v Croydon Health Services NHS Trust [2017] ICR 1240. 88. The burden of proof is on the claimant, when they do not have 2 years’ service to establish the reason for dismissal (Smith v Hayle [1978] IRLR 413.) Unauthorised Deduction from Wages 89. Section 13(1) of the Employment Rights Act 1996 provides that an employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract or the worker has previously signified in writing his agreement or consent to the making of the deduction. 90. Section 13(3) ERA provides that the total amount of wages paid on any occasion by an employer to a worker employed by them is less than the total amount of the wages properly payable by him that amounts to a deduction for these purposes. Conclusions Harassment 91. Given the nature of the allegations made by the claimant the tribunal’s findings of fact are determinative on allegations (a) to (e). We accepted that if the words alleged had been used that would have been a clear and overt case of harassment related to race. The language would have created the proscribed environment viewed both through the claimant’s viewpoint and that of a reasonable observer. 92. As already set out above we did not find that the alleged comments were made. We did not find that at any time during his employment with the respondent did any of the respondents use any of the language as alleged in the list of issues at paragraphs 52 (a) to (e). Therefore, the alleged unwanted conduct did not occur, and the claim must fail. 93. We accepted that Adam Richardson did swear including around the claimant and in conversation with him. The meeting that took place between the claimant, Mr Richardson and Jawad Munir arranged at Mr Atherton’s request suggests the respondent tried to take seriously the strained relationship Case No. 2400949/2022 18 between the two men. However, there was mutual animosity between the two men and any language used by Mr Richardson was not related to the claimant’s race. 94. In respect of the allegation that on 16/9/21 having raised concerns the claimant was told he had two options resign or be sacked firstly we did not find that this occurred on the 16/9/21, but on the 23/9/21. There was therefore a meeting that took place at which the claimant was given two options (the protected conversation). We would accept that this could amount to unwanted conduct. However, when we have considered why this meeting took place we found no evidence that it related to the claimant’s race (see further below on section 103A). 95. On either case the working relationship between Mr Richardson and the claimant was poor, and in a short time of employment had taken its toll. The meeting was called in circumstances where the claimant had less than two years’ service, and several people had found him difficult to work with. It was related to an attempt to redress the negative impact on the workplace, not related to the claimant’s race. 96. The claimant was dismissed without any procedure, this we found was for no reason other than he had less than two years’ service and was not related to his race. 97. The allegations made against Tim Walmsley were not made out. The claimant gave very little detail or explanation about these 4 allegations. There was nothing in the claimant’s evidence that related any discussion about his registration number to his race. The claimant’s own evidence in relation to his accent was that during meetings he was asked to repeat himself, but that seemed to be because Mr Walmsley had not heard with sufficient clarity as opposed to anything race related. Evan if that had been unwanted, we did not, on the evidence we heard, consider that it would have been reasonable for the claimant to have found that being asked to repeat himself in a meeting (without anything more such as tone or persistence) had the proscribed effect. 98. As to the monkey noises we did not find that allegation proven and so that claim must also fail. Direct Discrimination 99. For the same reasons the direct discrimination claim also fails. Where we have found that the events did not occur (allegations a to e) there cannot have been any less favourable treatment and so that claim is dismissed. Case No. 2400949/2022 19 100. In respect of the remainder we concluded: a. The reason why the respondent had the protected conversation was to enable the claimant to leave without a ‘dismissal’ and to improve the working environment for the rest of the staff in light of the negative impact of the claimant’s relationship with Mr Richardson and others. b. There was no failure to deal with the claimant’s grievance because he never made a formal grievance. There were attempts to informally resolve issues (the meeting with Mr Munir for example). Therefore, there was no treatment that could be detrimental or less favourable. c. The reason for the lack of procedure was because he had less than two years’ service. There is no evidence from which we can draw an inference that anyone else in not materially different circumstances would have been treated any differently. We did consider Mr Richardson and whether we could draw any inferences from the fact that he was not dismissed, but we concluded he was in materially different circumstances because only the claimant had an issue with him, whereas there were other members of staff who found, or were beginning to find, the claimant to be disruptive. 101. His claim for direct race discrimination therefore fails. For the sake of clarity we did not consider Brendan to be an actual comparator, he was subordinate to the claimant and there is no evidence that staff were finding him difficult to work with due to his interpersonal skills or behaviour, unlike the claimant. Protected Disclosures 102. Although we did not accept the claimant did raise the matters alleged with the office of fair trading, we did find he raised some of them with Mr Atherton. 103. The claimant did raise the driveway, but given that he was enquiring about his own driveway being done we find that he did not have a genuine and reasonable belief in that information tending to show there had been a criminal act, or failure to comply with a legal obligation. Rather he was aware it was being done at cost when there was a surplus of staff, he was too vague in his evidence for us to conclude that he had disclosed information within the meaning of the ERA as set out in the list of issues, rather this was a general enquiry made by him in which he referenced other staff having their drives done. 104. We also concluded the claimant did raise an issue with the Hickton account and that this was about the retention of funds. Given the exchange between him and Mr Atherton about this we found there to be enough information mixed with an allegation of monies being retained that it was a Case No. 2400949/2022 20 protected disclosure. It may be that he was given the task of handling this, and that he did not understand it, but he clearly felt like there was some impropriety in connection with this money. It is reasonable for him to believe there was a failure to comply with a legal obligation. It is also reasonable for him to believe that it is in the public interest given it involves VAT and retention of client contract funds. 105. However, we also accepted that Mr Atherton left this with the claimant to deal with and he did not consider it to be a big issue, but rather an ongoing commercial conversation, so he was not put out or annoyed that this was raised. 106. In any event, even if all of the matters alleged amounted to qualifying, protected disclosures, the claimant’s claim is that he was subject to a detriment by being kept out of meetings and conversations. He gave no evidence of what those meetings were, or whether he was disadvantaged by being excluded. We were unable to find that he was subject to any detriment. Therefore, this claim fails. Section 103A 107. For the reasons already expressed we found the reason, or principal reason for the dismissal was the breakdown in the relationship between the claimant and Adam Richardson amongst others. The tribunal was particularly persuaded by the email of the 17 September 2021 in which the frustration of Tim Wlamsley is plain to see because of ‘another disagreement’ which has ‘taken an hour out of my day and had Phil involved’ and that ‘neither sees the relationship ever being repaired. All over nothing’. 108. Had there been harassment related to race, or race discrimination we would have expected the claimant to say more in his contemporaneous emails, and in his statement before us. Even in the alleged grievance he still omits the nature of the allegations he now makes. 109. For those reasons we prefer the respondent’s case. We find the claimant was dismissed because the respondent could no longer tolerate the poor working relationship between the claimant and Adam Richardson which was beginning to have a wider impact, as can be seen in that email of the 17 September. 110. The claim for automatic unfair dismissal also fails. Unauthorised Deduction from Wages Case No. 2400949/2022 21 111. This claim fails because we have no factual basis for finding (a) he did in fact work overtime or (b) that there was an agreement for him to do so. In his claim form he states his claim was for unpaid overtime as he did 80 hours average per week [15b]. In his schedule of loss which totals £23,790,000 he has not set out how much he says he is owed in unpaid overtime. 112. We noted his email saying the reason he was working late into the evening was because he was revising, and so he did not want the respondent to become concerned. That does not suggest he worked overtime, rather the opposite. 113. In the absence of any evidence, and considering the contractual provisions, this claim is dismissed. Conclusion 114. None of the claims are well founded and they are all dismissed. Employment Judge Mellor Date 10 December 2024 REASONS SENT TO THE PARTIES ON 16 December 2024 FOR THE TRIBUNAL OFFICE [AF]