← Back to searchEmployment Tribunal
- Case Number
- 4104611/2024
- Claimant
- Mr S Goodall
- Respondent
- Big Issue Sharebike Ltd (In Liquidation)
- Venue
- Scotland
- Hearing Date
- 25 October 2024
- Compensation
- £1,223,250
- Jurisdiction
- Breach of ContractUnfair DismissalUnlawful Deduction from WagesandWorking Time Regulations
Judgment
The Judgment of the Tribunal is that:-
1. the claimant was unfairly dismissed by the respondent;
2. the respondent shall pay to the claimant the sum of Twelve Thousand, Two
Hundred and Thirty-Two Pounds and Fifty Pence (£12,232.50), by way
of compensation for his unfair dismissal;
E.T. Z4 (WR)
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3. the respondent shall pay to the claimant the sum of One Thousand, Nine
Hundred and Four Pounds (£1,904), as damages for breach of contract
(failure to give notice of termination of employment); and
4. the respondent shall pay to the claimant the sum of Five Hundred and
Seventy-One Pounds (£571), as a payment in lieu of annual leave.
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Reasons
Introduction
1.
Scott Goodall brought complaints of automatic unfair dismissal, by reason of
making protected disclosures (“whistleblowing”); for notice pay; and for
accrued annual leave. His claim was not defended. The respondent
Company, Big Issue Sharebike Ltd (“Sharebike”), went into Creditors
Voluntary Liquidation, on 30 August 2024.
The evidence
2.
I heard evidence from Mr Goodall at the Hearing. He gave his evidence in a
measured, consistent and convincing manner and presented as credible and
reliable. Helpfully, he also submitted bundles of documentary productions,
indexed and numbered (“P”).
The facts
3.
Having heard Mr Goodall’s evidence and considered the documentary
productions, I was able to make the following findings in fact.
4.
Sharebike was involved in renting out, via a mobile App, the use of communal
battery assisted bicycles for members of the public in Aberdeen.
5.
Mr Goodall commenced his employment with Sharebike on 9 October 2023.
He was employed as “Operations Co-ordinator”. An “Organisational
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Framework” was one of the documentary productions (P.10). The Directors
and Principals of Sharebike were based in Norway. Mr Goodall’s employment
and working conditions were unsatisfactory from the start. Those in senior
management were unsupportive, apart from Anthony Fortin, the Acting
Regional Manager, who was also based in Norway but he resigned in January
2024.
First protected disclosure
6.
Soon after Mr Goodall started his employment, he raised with Jan Tore
Endresen, the CEO and one of the Directors, and Mr Fortin, his safety
concerns about the state of Sharebike’s two vans used in Aberdeen. The
vans were in a poor state of repair with doors being secured by tape and there
were numerous mechanical failures (P.12-19).
7.
Mr Goodall also raised his concerns that one of the vans was not taxed (P.12)
and about the lack of insurance cover and the ownership of the vans.
8.
However, nothing was done to address his concerns.
Second protected disclosure
9.
Mr Goodall was instructed in October 2023 to recover bicycles which had
ended up in the River Don in Aberdeen (P.26 and 28).
10.
Mr Goodall expressed his concern to senior management, verbally and by
way of WhatsApp group messages, about the safety of what was being
proposed, the fact that the employees had received no training and there was
no risk assessment (P.28-33).
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11.
Mr Goodall recommended that certain “PPE” equipment should be purchased
(P.27). However, his concerns were dismissed and he was met with
resistance, in particular from the Sharebike Director, Mr Endresen, with
whom he corresponded in February 2024 (P.29-33). This included a veiled
threat of dismissal (P.32):- “If you can’t be a manager you better step down
and focus on being a driver. I’m a bit fed up with this and are out of patience.
We have other options. What’s your plan.”
Dismissal
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12.
On 29 February 2024, Mr Goodall refused to go out in one of the vans as it
was neither insured or taxed. He sent the following message to Mr Endresen
at 08:27 on that day (P.57):-
“Per my previous messages, the vans are no longer insured and as you didn’t
give me authorisation to purchase correct and up-to-date insurance, they are
no longer legal to drive. The small van is the only one capable of being used.
Unfortunately it is now untaxed and uninsured which means it is illegal to
drive.
As you did not take my suggestion to allow me to rent a van previously, all
the vans in the city via from all or usual sources are fully booked. We cannot
collect any more bikes.”
13.
In response at 08:49, Mr Endresen said this:-
“That’s not right - they are for the whole day, and we can renew them any
time but will not until the new owner has decided for what to do with them. In
case you cannot contribute to the operation - please go home and leave all
your keys, phones and other assets in the office. You are only disturbing the
operation and we have complaints about you.”
14.
Later that day, at 18:00, Mr Endresen sent the following message to Mr
Goodall:-
“We regret to inform you that your employment with Big Issue Sharebike is
hereby terminated, and your association with the Aberdeen operation is
ended effective immediately. A detailed explanation will be provided to you
via e-mail shortly. We request that you vacate the premises promptly and
return all company belongings, such as keys, phones, credit cards, and tools.
Access to all company systems will be revoked, and any misuse of these
systems will be strictly prohibited."
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15.
On 29 February, Mr Endresen wrote to Mr Goodall to confirm his dismissal
(P.58). He claimed that the reason for Mr Goodall’s dismissal was, “a
breakdown in trust”.
Discussion and Decision
Unfair dismissal by reason of making a protected disclosure
Relevant law
16.
S.43B of the Employment Rights Act 1996 (“the 1996 Act”) is in the following
terms:-
“43B Disclosures qualifying for protection
(1) In this part a “qualifying disclosure” means any disclosure of information
which, in the reasonable belief of the worker making the disclosure, is
made in the public interest and tends to show one or more of the following
(a) that a criminal offence has been committed, is being committed or is
likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any
legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to
occur,
(d) that the health or safety of an individual has been, is being or is likely
to be in danger,
(e) that the environment has been, is being or is likely to be damaged or
(f) that information tending to show any matter falling within any one of
the preceding paragraphs has been, or is likely to be deliberately
concealed."
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17.
I was satisfied that Mr Goodall’s complaints and the concerns he expressed
were disclosures which qualified for protection, in terms of sections 43B(1)(b)
and (d).
18.
In arriving at this view, I was assisted by the guidance in Martin v. London
Borough of Southwark & The Governing Body of Evelina School EA-
2020-000432-JOJ, in which the EAT reiterated the 5-stage test from a
number of authorities for determining if there has been a protected disclosure:
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•
I was satisfied there was a disclosure of information.
•
It was clear that the disclosure was made in the public interest.
•
Mr Goodall’s belief was reasonably held.
•
As I recorded above, the disclosures tended to show the matters in
s.43B(1), namely (b) that a person has failed, is failing or is likely to fail to
comply with any legal obligation to which he is subject; and (d) that the
health or safety of any individual has been, is being or is likely to be in
danger;
•
Finally I was satisfied that belief was reasonably held by Mr Goodall.
Automatic unfair dismissal
19.
S.103A of the 1996 Act is in the following terms:-
“103A Protected disclosure
An employee who is dismissed shall be regarded for the purposes of this Part
as unfairly dismissed if the reason or, if more than one, the principle reason
for the dismissal is that the employee made a protected disclosure"
20.
I was satisfied that Mr Goodall’s dismissal was because he had made
protected disclosures. The fact that he had raised his concerns about the
respondent’s legal obligations and health and safety matters were the reason
why he was dismissed. His dismissal on 28 February, and, significantly, the
timing of it, was clearly a reaction to him refusing to use a van which was
uninsured, untaxed and unsafe and all his complaints and the concerns he
had expressed previously.
Remedy
21.
Mr Goodall is entitled to an award of compensation to reflect his financial loss,
as a consequence of his unfair dismissal. Helpfully, he had submitted a
Schedule of Loss along with his documentary Productions (P.67-74).
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22.
When he was employed by Sharebike he was also employed by Asda as a
Driver. Fortunately, after his dismissal he was able to increase his hours of
work with them.
23.
I decided that it would be just and equitable to award him compensation to
reflect his financial loss for the period from 28 March 2024 (the end of his
notice period which is referred to below) until the date of the Tribunal Hearing
on 21 October 2024. I accepted his evidence that there was a differential in
his earnings in that period between what he would have earned had he
remained in the employment of Sharebike and what he has earned with Asda
of £6,786 (P.74)
24.
I also decided that it would be just and equitable to award him compensation
for future loss as it is likely to be some time until he is able to enjoy earnings
at the same level as he enjoyed when he was employed by Sharebike. I
decided that it would be just and equitable to award him future loss for a
period of 3 months at the rate of his continuing loss, estimated at £1,000 per
month, a total of £3,000, making a total of £9,786.50.
25.
Finally, Mr Goodall was summarily dismissed. Sharebike failed to follow any
form of disciplinary procedure. I decided, therefore, in these circumstances,
that there should be an uplift in the award of compensation by 25% in respect
of the respondent’s failure to follow the ACAS Code.
26.
The total award of compensation, therefore, is £12,232,50.
Notice
27.
Mr Goodall was summarily dismissed. In terms of his contract of employment,
he should have been given 4 weeks’ notice.
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28.
He earned on average, £476 per week. The respondent was in breach of
contract in respect of its failure to give him notice. He is entitled, therefore,
to an award of damages of £1,904 (4 x £476) for that breach.
Accrued annual leave
29.
In terms of his contract of employment, Mr Goodall was entitled to 28 days’
annual leave. He was employed by Sharebike for 6 months. He had accrued
14 days’ leave, therefore, when he was dismissed. He had taken 8 days’
leave during the course of his employment. He had accrued 6 days’ leave,
therefore, when his employment ended. On the basis of daily earnings of
£95.20, he is also entitled to a payment of £571 in this regard (6 x £95.20).
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Employment Judge: N M Hosie
Date of Judgment: 25 October 2024
Entered in register: 25 October 2024
and copied to parties