Mr M Maslouh v MBA Michael Bailey Associates Ltd: 2213425/2023

Case Number: 2213425/2023
Claimant: Mr M Maslouh
Respondent: MBA Michael Bailey Associates Ltd
Venue: England and Wales
Hearing Date: 28 January 2025
Judge: Employment Judge P Klimov
Claimant Representative: Mr M Maslouh
Respondent Representative: Ms A Ralph (Legal Executive – Croners)
Judgment Type: preliminary hearing
Compensation: £1,110,690
Jurisdiction: Disability DiscriminationPublic Interest DisclosureUnfair DismissalandUnlawful Deduction from Wages

Judgment

1.The claimant’s interim relief application is refused. 2.The Tribunal delivered an oral judgement. The respondent requested written

Reasons

on the Public Register of Judgments, the claimant requested that the written reasons be subject to an anonymity order under Rule 50 of the Tribunal Procedure Rules 2013. 3. The following directions were made: a. the claimant should by 22 November 2023 confirm in writing to the Tribunal and the respondent whether he wishes to pursue an application under Rule 50 and if so, provide the reasons for his application in writing; b. the respondent should by 29 November 2023 confirm in writing to the Tribunal and the claimant whether the Rule 50 Case Number: 2213425/2023 2 of 2 application is opposed and if so, provide the reasons for the opposition in writing; c. The Tribunal will then consider the Rule 50 application “on the papers” submitted by the parties and provide a Decision on that application and then provide the written reasons in compliance with that Decision. 4. There is a separate Case Management Order. Employment Judge Henderson JUDGMENT SIGNED ON: 15 November 2023. JUDGMENT SENT TO THE PARTIES ON 16/11/2023 FOR THE SECRETARY OF THE TRIBUNALS --- Case Number 2213425/2023 1 EMPLOYMENT TRIBUNALS Claimant Respondent Mohamed Maslouh v MBA Michael Bailey Associates UK Ltd Heard at: London Central On: 28 January 2025 (in chambers) Before: Employment Judge P Klimov Tribunal Member F Benson Tribunal Member D Schofield JUDGMENT The unanimous judgment of the Tribunal is that the respondent’s application for a costs order in respect of the respondent’s witnesses’ attendance of the hearing is not well-founded and is dismissed. REASONS 1. Following the Tribunal announcing its judgment on the claimant’s claim, by which judgment the Tribunal had dismissed all the complaints in the claim, the respondent’s representative indicated that the respondent wished to make a costs order application. After a short discussion with the parties, the Tribunal decided not to hear the application there and then, but for the application to be submitted by the respondent in writing, giving the claimant 14 days to respond, with the respondent having a further period of 14 days to reply to the claimant’s submissions, with the application then being decided by the Tribunal, either on the papers, or at a separate costs hearing. 2. The respondent sent the costs order application shortly after the end of the hearing, at 12:16pm. The Tribunal re-convened to consider the application before issuing case management orders. However, having examined the respondent’s application, the Tribunal decided that it could and should determine the application on the papers, and that it did not need to consider the claimant’s representations to determine the application fairly. The Case Number 2213425/2023 2 Tribunal decided that this course of action would be in the interests of justice and in accordance with the overriding objective. That is because, taking at its highest, the respondent’s application is doomed to fail regardless of what submissions (if any) the claimant might make in opposition. 3. The respondent claims the costs of attendance of its two witnesses: Messrs Garlick and Furlong. The total costs claimed is £3,038, being 14 hours of their attendance time x their hourly rates:- £142 for Mr Garlick, and £75 for Mr Furlong. 4. The application is submitted under Rules 74(1)/73(1)(b), 74(2)(a), 74(2)(c) and 74(3) of the Employment Tribunal Procedure Rules 2024 (“the ET Rules”). 5. The application is misconceived and is doomed to fail for the following reasons: (i) Rules 73(1) states (emphasis added) “73.—(1) A costs order is an order that the paying party make a payment to— (a) the receiving party in respect of the costs that the receiving party has incurred while represented by a legal representative or a lay representative, or (b) another party or witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual’s attendance as a witness at a hearing.” Expenses cover costs items such as travel and accommodation costs, subsistence expenses, loss of earnings a witness would have had but for having to attend the hearing. The respondent’s witnesses’ hourly rates are not expenses. The respondent does not submit, and neither of the two witnesses provide any evidence, that they have “incurred” these costs because of their attendance of the hearing. (ii) Furthermore, whilst a precise causal link between the conduct complained of and specific costs is not required, it is not the case that causation is irrelevant. The tribunal must look at the entire matter in all its circumstances. In Yerrakalva v Barnley MBC [2012] ICR 420 Mummery LJ gave the following guidance on the correct approach: “41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson's case was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the employment Tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances”. Case Number 2213425/2023 3 There is no causal link whatsoever between the claimant’s conduct the respondent complains about in its application and the respondent's witnesses’ attendance of the hearing. To put it simply, the respondent witnesses’ would have still had to attend the hearing to give their evidence regardless of the claimant’s conduct complained of. Furthermore, the respondent’s witnesses’ attendance was only required for about 45 minutes on day 2 of the hearing. Their attendance of the rest of the hearing was their choice. (iii) Rule 74(2)(a): The claimant’s conduct the respondent complains about on any sensible view does not reach the threshold of acting “vexatiously, abusively, disruptively or otherwise unreasonably”. a. There is nothing unreasonable per se in the claimant making a late application to postpone the hearing on medical grounds. The respondent consented to the first application in April 2024 (and that was the basis upon which the application was granted). The claimant’s January 2025 postponement applications were refused and the re-listed hearing went ahead. b. The fact that the claimant has failed to copy the respondent on some of his emails to the Tribunal is unfortunate. However, the claimant is a litigant in person, and there is no evidence to suggest that his failure was deliberate or otherwise aimed at gaining any unfair advantage. c. The Tribunal has made no determination as to whether the claimant has failed to disclose all relevant mitigation documents. In any event, as was agreed with the parties at the start of the hearing, it was a liability only hearing with the remedy issues to be discussed following the Tribunal’s judgment on liability. No prejudice, disadvantage, or costs have arisen to the respondent from the alleged late or incomplete disclosure of the claimant’s mitigation evidence. d. The claimant making new allegations at the hearing or using unfortunate expressions and comparisons (and bearing in mind that English is not his mother tongue), whilst might have been ill-considered, was not, in the Tribunal’s judgment, conduct that attains the level of acting “vexatiously, abusively, disruptively or otherwise unreasonably”. In any event, there was no prejudice or costs to the respondent arising from that. e. Equally, while the claimant was persistently late on each day of the hearing (despite the Tribunal’s warnings), he explained his late arrivals by not being able to wake up on time due to the effects of his medications. There was no prejudice or costs to the respondent arising from the claimant’s late arrivals. Case Number 2213425/2023 4 (iv) Rule 74(2)(c): The respondent consented to the claimant’s first application of 18 April 2024. The application was granted on that basis. The respondent did not seek a costs order at the time of consenting to the application. The cost the respondent seeks now has no relevance to the April postponement. (v) Rule 74(3): For the same reasons as explained above, none of the matters the respondent complains about, in the Tribunal’s judgment, justify making a costs order against the claimant. The hearing has not been adjourned. It has concluded within the allocated time window. No prejudice or costs have arisen to the respondent from the matters complained of. Employment Judge Klimov 28 January 2025 Sent to the parties on: 4 February 2025 ...................................................................... ...................................................................... For the Tribunals Office --- Case Number 2213425/2023 1 EMPLOYMENT TRIBUNALS Claimant Respondent Mohamed Maslouh v MBA Michael Bailey Associates UK Ltd Heard at: London Central (in public; in person) On: 23 January – 28 January 2025 Before: Employment Judge P Klimov Tribunal Member F Benson Tribunal Member D Schofield Appearances: For the claimant: in person For the respondent: Ms E Cho, litigation consultant JUDGMENT The unanimous judgment of the Tribunal is as follows: 1. The claimant’s complaints of discrimination arising from disability, contrary to section 15 of the Equality Act 2010, and unauthorised deduction from wages, contrary to section 13 of the Employment Rights Act 1996, having been withdrawn by the claimant, are dismissed pursuant to Rule 51 of the Employment Tribunal Procedure Rules 2024. 2. All other complaints in the claim are not well-founded and are dismissed. Employment Judge Klimov 28 January 2025 Case Number 2213425/2023 2 Sent to the parties on: 4 February 2025 ...................................................................... ...................................................................... For the Tribunals Office --- Case Number 2213425/2023 1 EMPLOYMENT TRIBUNALS Claimant Respondent Mohamed Maslouh v MBA Michael Bailey Associates UK Ltd Heard at: London Central (in public; in person) On: 23 January – 28 January 2025 Before: Employment Judge P Klimov Tribunal Member F Benson Tribunal Member D Schofield Appearances: For the claimant: in person For the respondent: Ms E Cho, litigation consultant JUDGMENT with oral reasons having been announced to the parties at the hearing on 28 February 2025, the written Judgment having been sent to the parties on 4 February 2025, and written reasons having been requested by the respondent on 4 February 2025, in accordance with Rule 60(4)(b) of the Employment Tribunal Procedure Rules 2024, the following reasons are provided REASONS Introduction 1. By a claim form, dated 9 August 2023, the claimant brought complaints of unfair dismissal, disability discrimination, notice pay, and arrears of pay. The respondent presented a response, resisting all the complaints. 2. On 7 November 2023, there was a case management preliminary hearing before Employment Judge Snelson, at which the claim was discussed. It Case Number 2213425/2023 2 transpired that the Tribunal overlooked the claimant’s application for interim relief. The Judge listed a hearing to determine the application. 3. On 15 November 2023, the case came for an interim relief hearing before Employment Judge Henderson. The Judge refused the claimant’s interim relief application and proceeded to case manage the claim. She recorded the complaints advanced by the claimant and ordered the claimant to provide further and better particulars. The Judge recorded that the respondent accepted that by reason of paranoid schizophrenia and severe depression the claimant was a disabled person at the material time, pursuant to s.6 of the Equality Act 2010 (“EqA”). The parties were ordered to finalise a list of issues. The case was listed for a final hearing in April 2024, which was later postponed, on the claimant’s application, and relisted for 23 – 28 January 2025. 4. On 9 January 2025, the claimant applied to be allowed to participate in the hearing remotely, from Morocco. On 15 January 2025, I refused that application, because the claimant had not sought or obtained permission to be allowed to give evidence from abroad. The claimant also asked to be allowed to have extra breaks during the hearing, which was granted. 5. At the start of the hearing, the claimant withdrew complaints of discrimination arising from disability, contrary to section 15 of the Equality Act 2010, and unauthorised deduction from wages, contrary to section 13 of the Employment Rights Act 1996. These were dismissed upon withdrawal, pursuant to Rule 51 of the Employment Tribunal Procedure Rules 2024. 6. At the start of the hearing, I discussed with the parties the remaining complaints and the issues. These were agreed as follows: Complaints: a. disability discrimination, contrary to section 13 of the Equality Act 2010 (“EqA”), b. failure to make reasonable adjustments, contrary to sections 20 and 21 of the EqA, c. automatically unfair dismissal, contrary to section 103A of the Employment Rights Act 1996 (“ERA”), and d. wrongful dismissal/notice pay. Issues: Direct disability discrimination (Equality Act 2010 s13) 4. Did the respondent do the following things: - Did the Claimant’s line manager refuse to hold one-to-one meetings with the Claimant after he disclosed that he had a diagnosis of schizophrenia? - Did the Respondent change its behaviour after this diagnosis had been disclosed by the Claimant? 4a) Did that amount to less favourable treatment? 4b) 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. 4c) If there was nobody in the same circumstances as the Claimant ie. no direct comparator, the Tribunal will decide whether he was treated worse than someone else would have been treated. 4d) If so, was it because of disability? 4e) Did the Respondent’s treatment amount to a detriment? Reasonable Adjustments (Equality Act 2010 ss20 & 21) Case Number 2213425/2023 3 6) Did the Respondent know, or could it reasonably have been expected to know, that the Claimant had the disability? From what date? 6a) A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs: was it a practice of the Respondent to require all of its employees to work from the office at the usual times? 6b) Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that he had to deal with rush hour on London public transport which he found stressful? 6c) Did the Respondent know, or could it reasonably have been expected to know, that the Claimant was likely to be placed at the disadvantage? 6d) What steps could the Respondent have been taken to avoid the disadvantage? The Claimant suggests: he could have either have worked from home or worked alternative hours. 6e) Was it reasonable for the Respondent to have to take those steps? 6f) Did the respondent fail to take those steps? Automatic unfair dismissal for protected disclosure (s.103A ERA) 1) Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide: 1a) What did the claimant say or write? When? To whom? The claimant says he made a disclosure on 7th July 2023 alleging that the Respondent had held excessive data retention contrary to the Data Protection Act 2018 and General Data Protection Regulation. - Did he disclose information? - Did he believe the disclosure of information was made in the public interest? - Was that belief reasonable? - Did he believe it tended to show that: • a criminal offence had been, was being or was likely to be committed? • a person had failed, was failing or was likely to fail to comply with any legal obligation? - Was that belief reasonable? If the claimant made a qualifying disclosure, was it was a protected disclosure because it was made to the claimant’s employer? If so, was it was a protected disclosure? 2) Was the reason (or if more than one, the principal reason) of the claimant’s dismissal that the claimant made a protected disclosure? If so, the claimant will be regarded as unfairly dismissed. Notice pay 8) What was the Claimant’s notice period? 8a) Was the Claimant paid for that notice period? 8b) If not, did the claimant do something so serious that the respondent was entitled to dismiss without notice? 7. The claimant’s witness statement contained his compensation claims. The claimant sought an award of £50, 875 for past and future loss, £34,000 for injury to feelings, and £1,110,690 for “unlawful deductions”. Case Number 2213425/2023 4 8. The claimant represented himself at the hearing and Ms Cho appeared for the respondent. The Tribunal was referred to various documents in the 279-page bundle of documents and 88-page supplemental bundle, the parties introduced in evidence. The claimant also presented an additional document – a photograph of the exit door in the respondent’s office, however, he did not refer to that document in the evidence or submissions. As was agreed with the parties, the Tribunal only read the documents referred to in the witness statements, or to which I was taken during the evidence and in submissions. 9. The Tribunal heard from the claimant and two witness for the respondent: James Furlong, the respondent’s Group Managing Director and Michael Garlick, the CEO and Director of the respondent. All witnesses gave sworn evidence and were cross-examined. 10. The claimant was persistently late for the hearing. On day 2 he arrived 90 minutes late, on day 3 - he arrived 30 minutes late (despite being warned by the Tribunal the day before that he must be in the Tribunal by 9:45am for the 10am start). The claimant explained his late arrivals by oversleeping due to taking medications. Although by the time the claimant arrived on day 2 the Tribunal had already adjourned the hearing for deliberation, the Tribunal gave the claimant indulgence and resumed the hearing to allow the claimant to make his closing submissions. 11. Before the start of the final submissions, the claimant made an application to commit the respondent for contempt of court. I explained that the Tribunal did not have jurisdiction to consider any contempt of court applications. The Facts 12. The Tribunal’s reasons for its findings on the key disputed facts are set out in the Analisys and Conclusions section below. 13. In summary, the respondent is an international recruitment and management consultancy organisation. The claimant commenced his employment with the respondent on 26 June 2023 in the role of Recruitment Consultant. His place of work was the respondent’s London office. Mr Furlong was his direct line manager. 14. After the first week of work, the respondent was unsatisfied with the claimant’s performance, as the claimant was not meeting the KPIs (key performance indicators) set for him. The claimant was told about that. 15. On 5 July 2023, the claimant emailed the respondent to inform the respondent of his mental health disability. He wrote that he was sufferring from “various mental health issues, including anxiety, ptsd and severe depression”. He attached an outdated fit note from January 2022 and an outdated doctor’s letter, dated 2 March 2022. The claimant asked the respondent to “make reasonable adjustments when possible”. The claimant had not informed the respondent Case Number 2213425/2023 5 before the start of his employment that he had any disability or medical conditions. 16. On 6 July 2023, the claimant took sick leave and submitted a sickness certificate which stated that he had anxiety and depression, and schizophrenia for which he was stable and on medication. The respondent asked the claimant to sign a consent form so that the respondent could request up-to-date information about his medical conditions for his request to make reasonable adjustments, which the claimant did the following day. The respondent wrote to the claimant’s doctor asking for details of the claimant’s health condition. The the claimant’s doctor responded on 3 August 2023 with information on the claimant’s mental health issues. 17. On 7 June 2023, Mr Furlong met with the claimant to discuss reasonable adjustments he required. Ms Julia Gallasch (Learning and Development Consultant) was also present in the meeting. Mr Furlong asked the claimant what support he felt he would require from the respondent. The claimant replied: “Why are you talking to me in this way?” and kept staring at Mr Furlong. Mr Furlong explained to the claimant that the respondent needed to know what reasonable adjustments he was looking for and to follow process as he had not put that in his email requesting reasonable adjustments. The claimant said that he wished to work from home. Mr Furlong said that the claimant needed to put his request in writing. The claimant then asked to work shorter hours. Mr Furlong explained that it would mean that his salary would be reduced on a pro- rata basis. 18. Mr Furlong became concerned about the claimant’s confrontational behaviour at the meeting. He told the claimant that at future meetings between him and the claimant a third person would be present. At the meeting the claimant did not raise any objections to that. The meeting ended. 19. The claimant left work on that day around 12.00pm and did not return to the office until the next return to work meeting on 14 July 2023. 20. On the same day, 7 July 2023, at 12:17pm, the claimant emailed the respondent, raising a formal grievance. His grievance was: “You have informed in the meeting: - you will not attend a 1-1 meeting with me as you do with other employees. A third person need to be present. - my salary will be reduced if alternative arrangements are made. - I’ve been asked to do delivery while my understanding is that I joined the company for business development. - you claim I’m not reaching my KPIs in the office while you didn’t offer me the opportunity to inform you about the 246 rate card jobs I brought onboard in my second week. I feel your actions are a discrimination against my disability, it is both distressing and alarming to me. [..]” 21. A few minutes later, at 12:55pm, the claimant sent another email to Mr Furlong and Ms Gallasch: Case Number 2213425/2023 6 “Dear all, I hope you are well, I would like to make a public interest disclosure, please find bellow, an email of explanation will follow.” 22. At 13:07, he followed up with: Further to my previous email, I would like to bring to your attention today that Michael Bailey is not compliant with the DPC and GDPR regulations especially article 5. The data held is clearly above the limit of how long it should be maintained. The ICO and DPC fine is defined as 4% of the annual turnover. I therefore will not conduct any work for the company until a satisfactory response to my public disclosure and grievance are provided. To my public disclosure, the company should assert that the work they do is both compliant and legal.” 23. The claimant forwarded a screenshot of the respondent’s internal database, showing names of prospective candidates, where they work, their contact details, and when they were last contacted. The screenshot showed that some of the candidates were last contacted 6 – 7 years ago. 24. The claimant’s grievance was investigated by an independent HR consultant (Mark Silvey of Croner), retained by the respondent. The grievance was dismissed on 20 July 2023. The claimant appealed. His appeal was heard by another Croner consultant (Nadine Forster) and, on 28 July 2023, not upheld. 25. The claimant was off sick until 14 July 2023. On 14 July 2023, there was a return to work meeting, attended by the claimant, Mr Furlong and Ms Gallasch. At the start of the meeting the claimant said that he had been admitted to the hospital and diagnosed with tonsillitis, and that he was still feeling ill. He produced various medicaments he was taking. Mr Furlong said that the claimant needed to go home and come back when he was fully recovered. The meeting ended. 26. Mr Furlong saw the claimant to the office exit door. Just before the exit door, the claimant turned around made a gesture of running a finger across his neck and said to Mr Furlong “I will fucking kill you”. He then left the office. The incident was witnessed by Mr Garlick and Ms Gallasch. They both saw the gesture but could not hear the words spoken by the claimant. 27. The respondent suspended the claimant on full pay and commenced disciplinary and SOSR (some other substantial reason) investigations. These were handled by Croner (Sam Marshall and Christopher Cox, respectively). Following the investigations, the claimant was invited to a disciplinary meeting on 7 August 2023, chaired by Dean Yeomans of Croner. 28. On 9 August 2023, Dean Yeomans produced a report with his overall finding that the claimant was guilty of gross misconduct by reason of his conduct Case Number 2213425/2023 7 towards Mr Furlong on 14 July 2023. He recommended that the claimant was dismissed without notice. 29. On 9 August 2023, Mr Garlick, having considered all the disciplinary and grievance reports by Croner decided to dismiss the claimant without notice for gross misconduct. He communicated his decision to the claimant by letter on the same day. The claimant did not appeal his dismissal. The Law 30. The relevant legal principles applied by the Tribunal are explained in the Analysis and Conclusions section below. Analysis and Conclusions 31. Having considered all the evidence, both oral and documentary, following deliberations the Tribunal announced its unanimous decisions as follows: ------------------------------------------------------------------------------------------------------- 1. The claimant brings complaints of: a. disability discrimination, contrary to section 13 of the Equality Act 2010 (“EqA”), b. failure to make reasonable adjustments, contrary to sections 20 and 21 of the EqA, c. automatically unfair dismissal, contrary to section 103A of the Employment Rights Act 1996 (“ERA”), and d. wrongful dismissal/notice pay. 2. At the start of the hearing the claimant withdrew his complaints of discrimination arising from disability, contrary to s.15 of the EqA, and unauthorised deductions from wages, contrary to s. 13 of the ERA. These complaints are dismissed upon withdrawal. 3. I will deal with the remaining complaints in the same order as I have just listed them. Our findings are not intended to cover every point of evidence given but are a summary of the principal findings that we made from which we drew our conclusions. Case Number 2213425/2023 8 4. I will give our factual findings and explain the relevant legal principles when dealing with the relevant complaint. Direct disability discrimination 5. Section 39(2) of the EqA states: 39 Employees and applicants (2) An employer (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; (c) by dismissing B; (d) by subjecting B to any other detriment. 6. Section13(1) of the EqA provides that ‘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’. Disability is one of the protected characteristics under the EqA. 7. The individual employee who carried out the act complained of must have been motivated by the protected characteristic. Decisions are frequently reached for more than one reason. Provided the protected characteristic, had a significant (in the sense more than minor or trivial) influence on the outcome, discrimination is made out. (Nagarajan v London Regional Transport [1999] IRLR 572, HL). 8. The claimant’s disability at the material time by reason of paranoid schizophrenia is not in dispute. 9. At the start of the hearing the claimant withdrew the allegation that his dismissal was because of his disability and confirmed that his direct disability discrimination complaint was limited to two allegations: (i) the alleged refusal by Mr Furlong to hold 1-2-1 meetings with the claimant, and (ii) the alleged Case Number 2213425/2023 9 change in behaviour by Mr Furlong. During the hearing the claimant further clarified these allegations as follows. 10. The alleged refusal to hold 1-2-1 meetings happened at the meeting on 7 July when the claimant alleges Mr Furlong said that he would not have future meetings with the claimant without a third person being present. The claimant, however, is not complaining about Julia Gallasch being present at that meeting on 7 July or at the next meeting on 14 July. The claimant also accepts that after him disclosing his disability to the respondent there were only two meetings between the claimant and Mr Furlong on 7 and 14 July, at which Ms Gallasch was present. 11. With respect to the “change in behaviour” allegation, the claimant said that it was about Mr Furlong at the meeting on 7 July allegedly grabbing the claimant’s wrist to look at his wristwatch. The claimant said that Mr Furlong had in the past looked at his wristwatch by touching the face of the watch, which the claimant had no objections to. However, at the 7 July meeting the claimant alleges that Mr Furlong, when looking at his watch, grabbed his wrist rather than merely touched the face of the watch. 12. As part of the “change in behaviour” allegation, the claimant also complains that at the meeting on 7 July Mr Furlong did not let the claimant tell him about the claimant securing a business deal for 246 jobs, instead telling him to send the relevant information to Ms Gallasch. Refusal to hold 1-2-1s 13. As I explained to the claimant when he was giving his evidence, it appears that this allegation is a complaint of harassment related to disability, and not a direct disability discrimination, which complaint the claimant is not bringing in these proceedings. However, as will be seen later, nothing of substance turns on that. Case Number 2213425/2023 10 14. The respondent does not dispute that Mr Furlong told the claimant that he did not want to have meetings with the claimant without someone else being present. However, Mr Furlong’s evidence (at paragraph 27 of his witness statement) is that it happened at the meeting on 14 July and not 7 July. Mr Furlong’s evidence is that he considered that to be reasonable out of safeguarding concerns and because the claimant had raised a formal grievance against him. The claimant did not challenge Mr Furlong on this evidence in cross-examination. 15. The claimant in his witness statement does not say that Mr Furlong said these words to him at the meeting on 7 July. He simply quotes from the transcript of the grievance investigation interview of Mr Furlong, conducted by Sam Marshall of Croner (p.1921). The passage, however, talks about the meeting on 14 July. The claimant’s ET1 and further and better particulars equally do not say that this was said on 7 July. We do, however, note that the claimant’s formal grievance, which he raised shortly after the meeting on 7 July (p.139) states: “I hope you are well, I would like to raise a formal grievance after our meeting today. You have informed in the meeting: - you will not attend a 1-1 meeting with me as you do with other employees. A third person need to be present. […].” 16. This, in our view, is strong contemporaneous evidence, showing that the discussion about the need to have a third person present at future meetings happened on the 7th and not on the 14th of July. Therefore, we find as a fact, that Mr Furlong told the claimant that he wanted someone else present at future meetings with the claimant at the 7th July meeting. 17. Mr Furlong’s evidence (at paragraph 27 of his witness statement) is that he considered this to be reasonable from a safeguarding perspective and as the claimant had raised a formal grievance against him. However, as we have 1 Here and below all references in the format (p.xx) are to the relevant page number in the main hearing bundle, and (p.xx SB) - to the relevant page in the supplemental bundle. Case Number 2213425/2023 11 found, by that stage the claimant had not yet raised his grievance against Mr Furlong. 18. Nevertheless, we accept Mr Furlong’s evidence (at paragraphs 15-17 of his witness statement) as to what happened at the meeting on 7 July, namely that the claimant responded to his question about what support he required from the respondent in a rather confrontational manner: “Why are you talking to me in this way?” and kept staring at Mr Furlong. 19. The claimant did not challenge this evidence in cross-examination. This evidence is consistent with what Mr Furlong said at the investigation interview (p.191). Looking at this evidence, it appears to us that it was reasonable for Mr Furlong to conclude that (as he said in his interview) “there was something not right” and that it would be better for all concerned if someone else was present at future meetings with the claimant out of safeguarding concerns and as a witness. As the future events have shown (and I will give our findings on those later in the judgment) he was right about that. 20. Therefore, we find that Mr Furlong said that he wanted someone else present at future meetings not because of the claimant’s disability as such, but because of the claimant's confrontational behaviour at the meeting on 7 July. In other words, we find that the claimant’s disability as such did not have substantial (in the sense more than minor or trivial) influence on Mr Furlong when he said that. It was the claimant’s confrontational behaviour at the meeting that influenced his decision to have a third person present at future meetings with the claimant. 21. The claimant did not advance his case on the basis, nor did he lead any evidence to show, that the way he behaved at the hearing on 7 July was because of something arising in consequence of his disability. In fact, he specifically abandoned his s.15 EqA complaint. In any event, in the agreed List of Issues (p.35) the only alleged unfavourable treatment with respect to s.15 complaint (unlike s.13 complaint) was the dismissal, not the refusal to hold 1-2-1 meetings. Case Number 2213425/2023 12 22. Furthermore, the claimant confirmed in his evidence that he did not object to and had no issues with Ms Gallasch being present at the meeting on 14 July. After that meeting there were no other meetings between him and Mr Furlong. We, therefore, do not accept that Mr Furlong, by saying to the claimant that he wanted a third person present at future meeting, subjected the claimant to “a detriment” within the meaning of s.39 EqA. 23. Although the legal threshold of “detriment” is fairly low, the relevant case law establishes that “an unjustified sense of grievance” cannot in law amount to a detriment (see Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337, HL). 24. Here, the claimant complains about being told that a third person would be present at his future meetings with Mr Furlong, in the circumstances where he had no objections to having a third person present at such meetings and does not say how that third person’s presence in any way disadvantaged him. 25. Therefore, we find it was unreasonable for the claimant to consider Mr Furlong saying that he wanted a third person present at future meetings with the claimant as a detriment. 26. For the sake of completeness, we would have come to the same decision (both on the issue of detriment/unwanted conduct and causation) had the claimant run this allegation as a complaint of harassment related to disability. Change in behaviour 27. We find the claimant’s direct disability discrimination complaint with respect to this allegation is misconceived and his evidence in support of it is highly unsatisfactory and unreliable. 28. Firstly, neither his ET1, nor further and better particulars contain any allegations of his wrist being grabbed by Mr Furlong (that is despite the claimant being ordered by EJ Henderson on 15 November 2023 to provide further and better particulars “explaining the nature and details of the “less Case Number 2213425/2023 13 favourable treatment””). This allegation does not feature in the agreed List of Issues. It is not in the claimant’s witness statement for this hearing. It is not even in his grievance email of 7 July. It is not something that he complained about during his grievance and disciplinary interviews or during his appeal hearing. In fact, it appears that in his grievance interview the claimant gave the example of Mr Furlong being interested in his watch (p.174) and grabbing him by his leg as signs of jovial and positive relationship he said he had had with Mr Furlong before he disclosed his disability, which he then went on to contrast with a rather formal demeanour of Mr Furlong at the meeting on 7 July. 29. Furthermore, at the grievance interview (p.174) the claimant said that he feared some sort of physical assault on him. However, in his appeal interview (p14 SB) he gave the evidence that Mr Furlong was not “aggressive in his body”, not “physically aggressive” but “played mind games”. 30. It is very odd indeed that if the wrist-grabbing incident had in fact happened and the claimant considered that to be an act of direct disability discrimination, he did not complain about that at any time before being cross-examined on his evidence during this hearing. 31. Therefore, even accepting, for the sake of argument, that this allegation does form part of the claimant’s claim before this Tribunal, we do not accept the claimant’s evidence that Mr Furlong grabbed his wrist as he belatedly alleged. On the balance of probabilities, we find that Mr Furlong did not grab the claimant’s wrist. This allegation, therefore, fails on the fact. 32. The second element of the “change in behaviour” allegation makes even less sense. As with the first element, it was not part of the claimant’s claim until he raised it in cross-examination. The allegation is confusing. It appears that the claimant complains that at the meeting on 7 July Mr Furlong did not give him the opportunity to inform Mr Furlong about the deal for 246 jobs with a prospective customer, Sunrise Technology, the claimant claims he had secured, and instead told him to send this information to Ms Gallasch. Case Number 2213425/2023 14 33. Firstly, the meeting on 7 July was about the claimant’s request for reasonable adjustments. Secondly, the very fact that (according to the claimant) Mr Furlong told the claimant to send details of the deal to Ms Gallasch indicates that the claimant had informed Mr Furlong about this deal (albeit perhaps in less details the claimant might have wanted). 34. In any event, it is hard to understand on what basis the claimant says it was less favourable treatment because of his disability. The claimant gave no evidence on any grounds to explain this allegation as a complaint of direct disability discrimination. 35. The initial burden to prove the relevant facts, from which the Tribunal could conclude (in the absence of another explanation from the respondent) that the claimant was treated less favourably and that this was because of his disability is on the claimant (s. 136 of the EqA). The claimant has failed to discharge it. In other words, we find that the claimant has failed to establish any factual or causal elements to make out this allegation. 36. In passing we observe that according to Ms Gallasch (p.4 of SB), it appears that, as a matter of fact, the claimant had not secured any jobs but simply received an invite to fill in a rate card and tender for the respondent to become a supplier to Sunrise. 37. It follows, we find that the claimant’s complaint of direct disability discrimination is not well-founded. It fails and is dismissed. Failure to make reasonable adjustments 38. As with the direct discrimination complaint, the claimant kept shifting his case on this complaint too, ultimately saying that he should have been allowed to work flexible hours (meaning that should be for him to decide on an ad hoc basis when to work and when to take a break) and to work from home, and that this should have been agreed at the meeting on 7 July, with the respondent making no further enquiries. Case Number 2213425/2023 15 39. We reject that. We accept the respondent’s evidence (Mr Furlong’s witness statement at paragraphs 15-17), not challenged by the claimant in cross- examination, that the claimant’s request for working different hours and working from home was not rejected at the meeting on 7 July. Instead, the respondent asked the claimant to put it in writing, and to provide his full medical records, so that the respondent could properly look into this matter. 40. Section 20 of the EqA does not say that the employer must implement “reasonable adjustments” on the employee’s say so. It says that the employer should “take such steps as it is reasonable to have to take to avoid the disadvantage”, and only when it acquired knowledge (actual or constructive) that a provision, criteria or practice (“PCP”) “puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparisons with persons who are not disabled.” 41. In our judgment, the respondent asking the claimant to put his request for reasonable adjustments in writing and to supply relevant medical information were immensely sensible steps to take. The claimant did not put his request in writing. The medical report the respondent had requested was sent to them only on 3 August, after the claimant had been suspended from work. 42. Therefore, the respondent was still at the very first stage of the process, determining whether the duty to make reasonable adjustments had arisen in the first place, before deciding whether it should take the steps requested by the claimant pursuant to that duty. 43. After the meeting on 7 July, the claimant never returned to work, save for a brief appearance on 14 July. Therefore, even if the duty to make reasonable adjustment had arisen on 7 July (which we find it has not) the claimant was not put at any disadvantage by the PCP he complains about. To put it simply, as he did not do any work for the respondent from 7 July, it made no difference to him whether he was expected to work from the office or from home and what his normal working hours were. Case Number 2213425/2023 16 44. In short, whichever way one looks at this complaint, it makes no sense. It fails and is dismissed. Whistleblowing dismissal 45. The short answer to this complaint is that we accept Mr Garlick’s evidence, which evidence the claimant did not challenge in cross-examination, that he decided to dismiss the claimant because of the claimant’s serious misconduct and that was his sole reason for that decision. That evidence is amply supported by the contemporaneous evidence in the bundle. In the interest of time, I am not going to go through them in detail. 46. We reject the claimant’s conspiracy theory that Mr Furlong, Mr Garlick, Ms Gallasch and the Croner investigators, all conspired to find a pretext to dismiss the claimant because he had made the alleged protected disclosure. Other than this bare allegation, the claimant provided no cogent evidence to sustain his conspiracy theory, nor did he even put this case to Mr Furlong and Mr Garlick when he was cross-examining them. 47. This conclusion is enough to dispense with this complaint, however, for the sake of completeness, we have also analysed the alleged protected disclosure. Our conclusion is that the claimant did not make a protected disclosure. 48. Section 43A of the ERA states, “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.” 49. Section 43B of the ERA states, (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— […] - that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject — S.43B(1)(b) 50. This means that a disclosure to satisfy the statutory definition of the qualifying Case Number 2213425/2023 17 disclosure: a. must contain information, as opposed to bare allegations – i.e. include “sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection” (Kilraine v London Borough of Wandsworth [2018] ICR 185 at [35]), b. such information must in the worker’s reasonable belief tend to show one of the listed matters; c. the worker at the time of making the disclosure must believe that he/she is making it in the public interest, and d. the worker’s belief must be reasonable. 51. In Chesterton Global Ltd v Nurmohamed [2017] IRLR 837, the Court of Appeal provided guidance on the public interest test at [27]-[31], [34] and [37]. The Court held that when considering whether a disclosure was made by a worker in the reasonable belief that it was made “in the public interest”, there were no absolute rules, and it was instead for the employment tribunal to decide whether a disclosure was made in the public interest on the circumstances of a particular case. The essential point is that to be in the public interest the disclosure must serve a wider interest than the private or personal interest of the worker making the disclosure. In deciding this question, the tribunal will be assisted by examining such factors as the numbers in the affected group, the nature of the interests affected and the extent to which they were affected, the nature of the wrongdoing, and the identity of the alleged wrongdoer. The Tribunal must, however, recognise that there could be more than one view as to whether a particular disclosure was in the public interest, and must not substitute its own view of whether the disclosure was in the public interest for that of the worker. 52. Pertinent to this case, the Court of Appeal said at [29]-[31] : 29 Third, the necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. That means that a disclosure does not cease to qualify simply because the worker seeks, as not uncommonly happens, to justify it after the event by reference to specific matters which the tribunal finds were not in his head at the time he made it. Of course, if he cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether he really thought so at all; but the significance is evidential not substantive. Likewise, in principle a tribunal might find Case Number 2213425/2023 18 that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time: all that matters is that his (subjective) belief was (objectively) reasonable. 30 Fourth, while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it: otherwise, as pointed out at para 17 above, the new sections 49(6A) and 103(6A) would have no role. I am inclined to think that the belief does not in fact have to form any part of the worker’s motivation - the phrase “in the belief” is not the same as “motivated by the belief”; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it. 53. We accept that read together emails (pp. 140-141) of the bundle and the screen short (p.142) in law amount to a disclosure of “information”. We also accept that at the time of making the disclosure the claimant reasonably believed that it tended to show that the respondent was failing or was likely to fail to comply with a legal obligation to which it was subject, namely with the relevant data protection principles in the GDPR concerning the accuracy and length of retention of personal data. 54. Whether the claimant was right or wrong about that is irrelevant for the present purposes. It is not an issue upon which this Tribunal is competent or required to give a definitive legal decision to resolve the claimant’s dismissal for “whistleblowing” complaint. 55. However, we find that at the time of making the disclosure the claimant did not reasonably believe that he was making it in the public interest. As observed above, the concept of the public interest is a broad one. 56. We accept that given that: a. the database contained personal contact details and CVs of a relatively large number of people, b. such data had been assembled into the database over a substantial period of time, c. there were possible adverse consequences to the data subjects if their personal details were lost or inaccurate details used, and Case Number 2213425/2023 19 d. many people in the society at large are likely at some stage in their working life to share their personal data with recruitment agencies and therefore would be interest to know how recruitment agencies handle their personal data, it might well be said that ordinarily a disclosure of this kind would serve the public interest, i.e. the interests of the society at large, and not just private interests of the person making the disclosure or a small group of individuals. 57. The question for us, however, is not whether a disclosure of this kind would be in the public interest, but whether when making this particular disclosure the claimant reasonably believed that he was doing so in the public interest. 58. Having heard the evidence and having considered contemporaneous documents we find that the claimant made this disclosure as part of his plan to protect his employment position with the respondent and ultimately negotiate a pay-off. 59. Therefore, we find that his real belief was not that he was making the disclosure in the public interest, but that this disclosure would be a good enough disclosure to later argue that it was made in the public interest, which is a different belief. 60. We say that for the following reasons: a. Firstly, the claimant’s evidence as to how he came about to make this disclosure was highly unsatisfactory and self-contradictory. i. Initially, he said that he had raised this issue many times before, however almost immediately he changed his story and said that he was just looking for an opportunity to raise it. ii. First, he said that he saw the issues in the database many times, however then he said that he had only accessed the database once or twice before, which is unsurprising given that by 7 July he only worked for the respondent for less than 2 weeks. b. Secondly, the timing of the disclosure is very suspicious. He made it straight after the meeting on 7 July and less than an hour after submitting Case Number 2213425/2023 20 his disability discrimination grievance. All that was in the context of the claimant being told that his performance was below the par, and he was not meeting his KPIs. c. Thirdly, in his grievance interview the claimant said that “he got upset” by what he was told at the 7 July meeting and then made the disclosure. We reject his evidence that what he meant was that he got upset with the respondent not being compliant with the GDPR, rather about what happened at and after the 7 July meeting. It is clear from the context (p.171) that the claimant was saying that he got upset about Mr Furlong not sending the claimant an email to congratulate him on getting the rate card deal. It had nothing to do with any data protection issues. It is also telling that in his interview with Christopher Cox on 31 July in reacting to the statement that he could not claim constructive dismissal for lack of 2-year service, the claimant said: “Unless you have a protected disclosure” and went on to say that the respondent had “no way in order to dismiss [him]” because of that (p.229). At his disciplinary hearing with Dean Yeomans, he further reiterates (p.239) that with him having made a protected disclosure, there was no reason for him to threaten Mr Furlong because that would “jeopardise and undermine all [his] case”. d. Fourthly, having made his disclosure, the claimant said that he was not prepared to do any work until a satisfactory response to his public disclosure was received. This is a rather strange position to take, given the claimant’s position that he wanted to help the respondent to be GDPR compliant. This, in our view, further shows that he simply sought to use his alleged protected disclosure as a bargaining chip with the respondent. e. Finally, it appears from the article presented in evidence (pp.83 – 88 of the supplemental bundle), the accuracy of which was not disputed by the claimant, a year before he joined the respondent, the claimant had made a similar allegation against his former employer, Ranstead and its client – Google. As in this case, he then refused to continue working on the Google account and initiated an employment tribunal claim for constructive dismissal, resulting in a settlement payment to him. It appears to us that the obvious similarity between these two cases is not Case Number 2213425/2023 21 a pure coincidence. 61. In sum, we find that the claimant has engineered his alleged public interest disclosure as a means of putting himself in a stronger negotiating position with the respondent. 62. We are cognisant of the fact that the case law draws a distinction between “belief” and “motivation”, and says that it does not matter whether the claimant was motivated by self-interest in making the disclosure. If he genuinely and reasonably believed that the disclosure was in the public interest it will be a protected disclosure. 63. However, in this case we find that the claimant’s belief as to why he was making the disclosure and his motivation for making the disclosure merged. We find that the only reason he made that disclosure was to move to the next stage of his plan with the ultimate goal of forcing a financial settlement from the respondent. His highly exaggerated and wholly unrealistic schedule of loss is a further proof of that. 64. Therefore, we find that the claimant did not genuinely believe that his disclosure served any public interest. As I have said earlier, what he genuinely believed was that the disclosure would be good enough to later argue that it was a protected disclosure (as he did), thus advancing his plan to engineer a complaint and eventually get a pay-off, which is a different belief and is not sufficient to make the underlying disclosure a “qualifying disclosure” within the meaning of s.43B ERA. 65. However, even if we were wrong on this issue, his automatically unfair dismissal complaint still fails on causation, because, as I have said earlier, we find that the sole reason for which the claimant was dismissed was because the respondent genuinely and reasonably believed that the claimant was guilty of gross misconduct. Case Number 2213425/2023 22 Wrongful dismissal/notice pay 66. This leaves me to deal with the remaining complaint of wrongful dismissal/notice pay. 67. The claimant was dismissed summarily on 9 August (p.155). Under the terms of his contract of employment he was entitled to one week’s termination notice. The notice was not given, and no payment was made in lieu of notice. 68. The respondent says that the claimant was guilty of serious misconduct by threatening to kill his manager, Mr Furlong, and therefore under the terms of the employment contract (p. 64 – para 1.9 (D)) the respondent was entitled to dismiss the claimant summarily. The respondent’s Disciplinary Rules give examples of serious misconduct, which includes, inter alia, violent behaviour. 69. To determine this complaint, we need to resolve two issues: (i) whether the alleged incident did take place as a matter of fact, and (ii) if it did, whether it amounted to serious misconduct, giving the respondent the right to dismiss the claimant summarily. 70. The respondent says that on 14 July after the meeting when Mr Furlong saw the claimant to the door, the claimant turned around made a hand gesture of running a finger across his throat and said to Mr Furlong “I will fucking kill you”. 71. The claimant says that it was all fabricated by the respondent to dismiss him because of his protected disclosure. The claimant consistently denied the alleged behaviour during the disciplinary process and in his pleaded claim. 72. Our task, however, is to resolve this factual dispute based on the evidence before us, by making a factual finding on the balance of probabilities, i.e. whether it is more likely or not that the incident, as described by the respondent, happened. Case Number 2213425/2023 23 73. Surprisingly, the claimant does not say in his witness statement that the incident did not happen. Even more surprisingly, he chose not to directly challenge either Mr Furlong or Mr Garlick on their evidence that the incident did happen. 74. Mr Furlong’s and Mr Garlick’s evidence are consistent with the contemporaneous documents - notes of their interviews and of the interview of Ms Gallasch, who also witness the incident (albeit neither she nor Mr Garlick heard what the claimant said, but just saw the throat slitting gesture). 75. We have no valid reason to reject Mr Furlong’s and Mr Garlick’s oral evidence. As I have said earlier, we reject the claimant’s conspiracy theory as not being proven by any facts, from which we could come to that conclusion. 76. Furthermore, we found the claimant’s oral evidence to this Tribunal were generally less reliable than the respondent’s witnesses’ evidence. I have already explained why his evidence on his other complaints was unsatisfactory, and often inconsistent and contradictory. There is no need to return to that. 77. For completeness, we reject the claimant’s submission that there is a material inconsistency in interview notes of Mr Furlong and Ms Gallasch as to their physical location vis-à-vis the claimant when the incident happened. The fact that Ms Gallasch left the meeting room first does not necessarily mean that she could not have been positioned behind Mr Furlong when the incident happened. As she explained in her interview, she went to see Mr Garlick and observed the incident from that position, while the claimant and Mr Furlong made their way to the exit door. Mr Garlick’s interview notes confirm that too. 78. We equally reject the claimant’s submission that the fact that Mr Furlong did not report the incident to the police is sufficient as the evidence that the incident had not happen. It was a matter for Mr Furlong and the respondent whether to report it to the police or not. In any event, the claimant did not put this case to Mr Furlong in cross-examination, which would have allowed Mr Furlong to explain why he chose not to report the incident to the police. Case Number 2213425/2023 24 79. Therefore weighing all this evidence before us, on the balance of probabilities, we find that the incident, as described by the respondent, did happen. 80. We also find that this amounted to serious misconduct by the claimant. On any view a threat of killing your manager (or any person for that matter) coupled with the aggressive “slitting the throat” gesture is a very serious matter indeed. 81. We, therefore, find that the respondent was within its contractual right to dismiss the claimant summarily. 82. It follows, that the claimant’s claim for notice pay fails and is dismissed. 83. That was the last complaint in the claim. With it failing, the claimant’s entire claim stands to be dismissed. 84. That concludes our judgment. ------------------------------------------------------------------------------------------------------ 32. After the Tribunal announced its judgment, dismissing the claim in its entirety, the respondent applied for a costs order. The Tribunal refused the application for the reasons set out in a separate judgment sent to the parties on 4 February 2025. Employment Judge Klimov 19 March 2025 Sent to the parties on: 26 March 2025 ...................................................................... ...................................................................... For the Tribunals Office

Approved By: Employment Judge Klimov
Date: 28 January 2025