Appeal No. UKEAT/0253/10/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 April 2011
                                                                             Judgment handed down on 29 November 2011

Before
HIS HONOUR JUDGE SEROTA QC
MR T HAYWOOD
MR H SINGH

MR A BLITZ	APPELLANT

VECTONE GROUP HOLDINGS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

REVISED

	APPEARANCES

For the Appellant	MR PHILIP JONES
(of Counsel)
Instructed by:
Thomas Mansfield LLP
Unit 2, Ground Floor
Christopher Wren Yard
119 High Street
Croydon
Surrey
CR0 1QG
	
For the Respondent
	MR TIM BROWN
(of Counsel)
Instructed by:
Vectone Group Holdings Ltd
Regatta House
58 Marsh Wall
London
E14 9TP

SUMMARY
VICTIMISATION DISCRIMINATION
Protected disclosure
Dismissal

The decision of the Employment Tribunal that the Claimant was not dismissed by reason of having made a protected disclosure was justified on the facts found.  The Claimant had, however, suffered minor detriment by reason of such disclosures.

HIS HONOUR JUDGE SEROTA QC
Introduction
1.	This is the hearing of an appeal by the Claimant from a decision at the Employment Tribunal sitting at the East London Hearing Centre presided over by Employment Judge Foxwell after a seven day hearing.  The Judgment is dated 1 March 2010.  

2.	The Employment Tribunal dismissed the Claimant’s claim for unfair dismissal but found that he had suffered detriment as a result of protected or health and safety disclosures, contrary to ss.44 and 47B of the Employment Right Acts 1996 in two respects.  The Employment Tribunal dismissed other claims of such detriments.  The Employment Tribunal adjourned claims in respect of unauthorised deductions from salary and failure to provide him with itemised wage slips, to a remedies hearing.  We believe that this has yet to take place.

3.	The Claimant represented himself in the Employment Tribunal and in various other applications.  He is not unfamiliar with appearing in employment proceedings.  We observe that throughout the hearing he was virtually bombarding counsel with notes to such an extent that it was less disruptive for counsel (and the EAT) if he were able to sit next to counsel.  We accordingly invited him to sit next to Mr Jones.  During the course of Mr Jones’ submissions the Claimant wished to address us directly.  This was an application we did not feel in the circumstances we should accede to.  Further, during the course of his submissions, Mr Jones had to seek our permission to absent himself from the court so he could receive further instructions from the Claimant.

4.	The Employment Tribunal had before it some eight originating applications; it adjudicated upon seven.  This reflects the somewhat obsessive approach to this litigation by the Claimant and this, coupled with a degree of ill-efficiency and failure to comply with directions and Orders, largely on the side of the Respondent, has led to a protracted and “involved” procedural history (in the words of the Employment Tribunal). 

5.	As we have noted, the Claimant presented no fewer than eight originating applications in which he alleged detriment in his employment, and automatically unfair dismissal by reason of having made protected disclosures or health and safety disclosures.  He secured a Continuation of Contract Order (“CCO”) on 3 November 2008 pursuant to s.128 of the Employment Rights Act.  This order was unsuccessfully appealed by the Respondent to the Employment Appeal Tribunal.

6.	The hearing was conducted by Employment Judge Gilbert and she granted the Claimant a Continuation of Contract Order on the basis that (i) it was unlikely that the Claimant was dismissed for the reasons given at the time; (ii) it was unlikely that the Respondent would show the date of the decision to dismiss the Claimant was on or about 16 September 2008; (iii) it was unlikely that disclosures made by the Claimant would not be found to be protected disclosures; (iv) it was likely that the Employment Tribunal would find the Claimant had been dismissed by reason of having made protected disclosures.  The order provided for the continuance of the contract of employment until settlement or determination of the claim and required the Respondent to pay to the Claimant his monthly salary of £3,919.05 two working days after each month end up until settlement or determination of the claim.

7.	On 1 May 2009 a CMD took place before Employment Judge Goodrich.  Proceedings were described by the Employment Judge as lengthy and highly contentious.  He refused an application by the Claimant that the Respondent should pay a deposit.  He noted that the Claimant had stated his intention of seeking a costs and preparation time order.

8.	The appeal came before HHJ Ansell on 25 August 2009.  The Claimant appealed against the decisions of the CMD and a refusal to review.  We note at this stage that there was an issue as to whether the order for the interim continuation of the contract required the Respondent to make payment by BACS, as for a period the Claimant received the sum in respect of his monthly salary by cheque rather than by BACS.  There is an issue in this appeal as to whether the effect of the order of 3 November required payment to be made by BACS.  HHJ Ansell observed:

“It seems to me that in specifying a payment, the court does have power to ensure that payment does take place on the normal pay day, as it is defined, particularly as in this case, there was contractual provision for payment by bank transfer, and section 130 is headed "Continuation of Contract of Employment". I see nothing wrong in the provision specifying in particular that payment which has to be made on the second day after the end of the month should be by appropriate bank transfer so that funds are actually in the account by that date. I would invite the parties on that aspect to agree a suitable form of wording to amend the Employment Judge's order.”

9.	On 1 October 2009 at a Pre-Hearing Review, Employment Judge Haynes refused the Claimant’s applications to amend the proceedings by adding additional respondents and set a new date for the final hearing for seven days commencing 25 January 2010.

10.	On 21 December 2009 the Claimant’s application to strike out the Respondent’s responses was rejected by Employment Judge Haynes.

11.	On 11 January 2010 the Claimant issued his eighth originating application.

12.	The hearing before the Employment Tribunal commenced on 25 January 2010.  The Employment Tribunal at once had concerns that the Respondent had not produced bundles in time and the Claimant had produced three lever arch files with mitigation documents which had not been copied nor seen by the Employment Tribunal nor the Respondent.

13.	The Respondent did not call any witnesses, although it relied on a witness statement from the Claimant’s former line manager, Mr Daniel Wilson, which was read, together with contemporaneous documents.

14.	On 20 March 2010 the Claimant filed his Notice of Appeal and on 6 May 2010 he submitted an Amended Notice of Appeal. 

15.	There have been further proceedings in the Employment Appeal Tribunal.  On 22 September 2010 the Registrar granted the Respondent an extension of time to file an answer; its original answer had been filed one hour late.  The Claimant appealed against this decision.  On 30 September 2010 the Claimant sought a review of this order.  On 7 October 2010 the Registrar refused to extend the Claimant’s time for seeking a review of the order of 22 September, but directed an amendment to that order.  On 10 November 2010 HHJ McMullen QC dismissed the Claimant’s appeal against the Registrar’s order for extending the Respondent’s time, refused to expedite the hearing of the appeal and refused applications for costs by both Claimant and Respondent.
 
16.	On 16 November 2010 HHJ McMullen QC refused an application by the Claimant to  review his order of 10 November 2010.  A further application to review was made in a letter of 22 December which was rejected by the Deputy Registrar, which led to a further appeal dated 30 December 2010.

Background facts and chronology
17.	The Claimant is an accountant, qualified in the year 2000.  He has worked as an academic in the fields of archaeology and theology between 2003 and 2005.

18.	The Respondent is the holding company of a group of companies that provides mobile phone services throughout Europe.  The Claimant has previous experience of litigation in Employment Tribunals.

19.	In July 2008 the head of the Respondent’s HR department, Ms Hamer, came across the Claimant’s CV on a website.  This led to the Claimant being interviewed and ultimately being offered the post of European Financial Controller of the Respondent from 26 August 2008.  His responsibilities included overseeing European operations, particularly in the Netherlands and Austria but also in Italy and Spain.  The Respondent had recently launched operations in Spain and the administration of its Italian operations were still incomplete.  There were also administrative issues in both Austria and Spain where the Respondent had operated for longer.  The European Financial Controller’s job requires him to identify issues and implement processes to address them; we refer to paragraphs 45 and 46 of the decision of the Employment Tribunal in which the relevant provisions of the contract are set out.

20.	The Claimant was entitled to an annual salary of £70,000 together with a discretionary bonus and various fringe benefits, including BUPA medical insurance, which would accrue after a probationary three month period.

21.	We feel bound to say that the contemporaneous documents disclose that the Claimant behaved in an extraordinary way in the four weeks of his employment.  We also note in the context of his claim that he was dismissed by reason of having made protected disclosures that it was his responsibility to report on issues that might be the subject of qualifying disclosures within the meaning of s.43B of the Employment Rights Act (we set this out later in this Judgment) and deal with them or make proposals for solving them, and that it would be surprising if he were to have been dismissed for making such disclosures; it was his job to make such “disclosures”.

22.	At the time the Claimant took up his post the Respondent was concerned with a VAT issue affecting its operations in the Netherlands and in Austria.  The Employment Tribunal set out the issue at paragraph 48 of its decision.  Services in these countries were provided through the Respondent’s Irish subsidiary.  The VAT treatment of pre-payment vouchers in Ireland meant that the transactions were not subject to VAT either in Ireland, or in the Netherlands or Austria.  It was important for the VAT authorities to be satisfied that the services were actually being provided from Ireland and not from another country and the Respondent wanted letters of comfort from KPMG to satisfy its wholesale customers that the VAT arrangements were correct.  One of the Claimant’s first tasks was to liaise with KPMG in the Netherlands.  On 29 August 2008 the Claimant attended a meeting in Amsterdam with Mr Wilson, the Respondent’s Head of Operations and as we have said, the Claimant’s immediate line manager.  Mr Wilson was concerned that at the meeting the Claimant kept drifting off into other matters; time was short and proposals being made by the Claimant appeared to be inappropriate.

23.	In early September 2008 the Claimant travelled to Italy and visited Milan and Rome in connection with the Italian operations.  It was proposed that he should become a director of the Italian subsidiary company which he did on 5 September.  He also became a director of the Spanish subsidiary.  While in Rome he was driven by an employee of the Italian subsidiary, Mattan.  He claimed that Mattan told him he had to collect cash and travel great distances all over Italy and that he sometimes slept by the roadside and operated on little sleep.  The Claimant sent an email regarding this conversation to Mr Guy Leibe‑Munoz, head of the Respondent’s legal department and to Ms Hamer (head of Respondent’s HR) and copied to Mr Wilson who accompanied him.  He did not deal with the issue himself and as the email was sent at 09:13am he could only have spoken to Mattan shortly before sending the email.  The email is relied upon by the Claimant as being the first of his protected disclosures.

24.	The email is set out at paragraph 49 of the decision of the Employment Tribunal and is to be found at page 203 of our bundle.  It contains the following:

“I have a quick question about Duty of Care for our IT employees, especially since we need to arrange insurance.  This may be a matter to raise locally in Italy but let me run this by you:”

25.	The email then goes on to say that “M” in the Italian office had mentioned that he often had to sleep on the road or only for a few hours as he covered a large territory, with an added concern that cash was in transit.

26.	On 11 September 2008 the Claimant was in Ireland working for the Irish subsidiary and it was arranged on 12 September that he should travel to Vienna on 16 September for three days to deal with a number of issues, including in particular the important matter of obtaining the letter of comfort of KPMG relating to VAT.  

27.	On 13 September 2008 a junior employee of the Respondent, Ms Sony, who worked at the London office, left a voicemail that the Claimant had been booked into the Avis hotel in Vienna.  On 14 September 2008 the Claimant sent an extraordinary email to Ms Sony, Mr Allirajah (the Respondent’s CEO) and Mr Khan, his personal assistant.  The email is in these terms:

“Baskaran/Ujala/Salma
The Avis Hotel is STUDENT hostel with shared facilities! I need a secure place and I’m not prepared to have shared showers/toilets etc and not to worry about laptop at the same time.
Now of course it’s short notice to book and there’s evidently something going on in Vienna on Weds as the Expedia prices have shot up to over 300 euro and there’s limited availability.  The hotel Mercue Josefhof is the only one I’ve found with availability and reasonable rate on the Wednesday.
Ujala please prioritise this and I will not be staying in the Avis Hotel and this may jeopardise the Austrian travel.
Baskaran - in future may I attend to my bookings?  I dealt with this on Wednesday/Thursday and it was only confirmed on the Saturday.  This is not a criticism of Ujala by any means but the likelihood is that I will be familiar with the European cities more so, the distances involved and the locations with reference to my meeting.  At present I do not want to incur huge costs on my cards especially when the expenses process from what I have been told takes 6 weeks.  I am therefore dependent upon Ujala to book this for me immediately.
Baskaran - Ujala is evidently working very long hours and at the weekends for these bookings.  Please can we not get Ireland (Marzena) to start helping out especially for AT, NL and IE - this would also help the VAT argument about demonstrating substance in IE is [sic] there’s one more service being provided out of IE and free up Ujala.  Conceivably, Marzena can do the searches and then Salma can approve and booking with CC can be done in UK but groundwork done in IE etc.
Thanks and regards
Adam”

28.	The Employment Tribunal was critical of the Claimant’s conduct:

“56. In short, the Claimant made it plain that he would not stay at this hotel and if the arrangement were not changed he would not go to Austria.  We found the tone of this email surprising when we first read it and we found the Claimant’s evidence that his was an appropriate and measured communication difficult to understand and impossible to accept.  In oral evidence the Claimant at first said that this was a perfectly innocent email.  To his credit he did then accept with the benefit of hindsight that he could have raised his concerns in a more diplomatic way.  The impact of the email was three-fold.  Firstly, it showed that the Claimant was willing to jeopardise the trip to Austria and the crucial meeting with KPMG.  Secondly, in making comments about Ms Sony’s working hours in an email addressed to her and the CEO he showed no appreciation of the difficult position in which employees at opposite ends of the company structure had been placed.  Thirdly, the email demonstrated a lack of any initiative on his part: he did not sort the issue out himself but passed it to others to deal with.  It is all the more remarkable that the Claimant did this when he was only in his third week in employment.  In our view it demonstrates poor judgment and a lack of any sense of proportion.”

29.	The email seemed somewhat petulant and it was not an appropriate matter with which to bother the CEO.  Mr Allirajah, unsurprisingly, was annoyed and called the Claimant in to see him on 15 September 2008.

30.	The Claimant did not challenge the substance of the minutes of the meeting which are substantially reproduced in paragraph 57.  Mr Allirajah made it clear he was “very disappointed” with the Claimant’s professional behaviour.  He did not know what action to take but he regarded the matter as so serious that it was the first meeting he was conducting on 15 September.  He made the point that the Claimant should concentrate on the jobs he was given rather than making suggestions as to who should be responsible for making travel arrangements. 

31.	The Employment Tribunal had these observations to make about this meeting:

“58. During his evidence the Claimant told us that he did not think that Mr Allirajah was referring to his continued employment and whether he was right for the job during this meeting.  We find this impossible to accept in the light of the words used, for example ‘you need to focus’, ‘let others do their job’, ‘I am very disappointed’, ‘Is this how you are going to behave’, ‘I suggest you go and listen’.  We noted the persistence of the Claimant’s evidence that Mr Allirajah was simply losing his temper over a single incident and one where the Claimant felt (at least originally) that he had done little or nothing wrong.  We simply cannot read it that way.  This was a watershed in our judgment.  The Claimant had been working for just three weeks and the Respondent by now had a flavour of him.  At this stage the only matter which the Claimant had raised which he characterises as a potential protected disclosure was the email of 5 September; the Claimant accepted in evidence that he had suffered no detriment by this time as a result of it other than, he says, that it had not been replied to in writing.  All of these factors suggest to us that Mr Allirajah had genuine concerns about the Claimant’s qualities as a reliable employee.  We observe also that the only basis for the Claimant’s assertion that Ms Sony was working long hours (the assertion which so upset Mr Allirajah judging by the minutes) was that she had called him at the weekend.  This tends to corroborate Mr Allirajah’s assertion that the Claimant focussed on issues more properly addressed by others and without a full understanding of the facts or time for reflection on them.” 

32.	On 16 September 2008 the Claimant (for whom an alternative hotel had been arranged) was in Vienna and attended a meeting about the VAT letter of comfort with KPMG.  Mr Wilson was confident the Claimant understood what was going on and the purpose of the meeting with KPMG.  He was surprised to receive a telephone call from Mr Liebe‑Munoz, who had spoken to the Claimant, and it had become apparent to him that he did not understand the Respondent’s requirements.  Mr Wilson, who was on holiday, telephoned in order to intervene in the meeting on the speakerphone.

33.	He later telephoned Mr Allirajah and the Employment Tribunal was satisfied that a decision was made on or about 16 September 2008 in principle to dismiss the Claimant.  The decision was, according to the Employment Tribunal, taken by Mr Wilson who was concerned at the Claimant’s failure to do what he had been employed and instructed to do.  He had not opened bank accounts in Italy, he had failed to deal adequately with the invoices generated by the subsidiary, VMDL (Vectone Mobile Distribution Limited).  He was also concerned that the Claimant’s responsibilities were to deal with issues rather than simply reporting them, as he appeared to be doing.

34.	On 16 September the Claimant also sought advice from a family friend who was a solicitor, Mr Mitzman, as to his liability as director of the Italian subsidiary if its health and safety policy was inadequate; he made no reference as to this to the Respondent.

35.	The Claimant evidently raised concerns about the application of the Spanish health and safety requirements to the Respondent’s workforce on 18 September 2008; this being the second of the protected disclosures upon which he relied.

36.	The Claimant returned to London on that date but then returned to Milan on 19 September where he met, inter alia, with a payroll company, HTLC, and he obtained advice about Italian labour law, including issues such as the banking of cash.  The Employment Tribunal did not accept the Claimant’s evidence that this was an operational issue for Mr Wilson to resolve; this was rejected by the Employment Tribunal (see paragraph 68) as the Claimant was the “financial man” for Europe who had been given the task of sorting out cash collection.  In the end it was Mr Wilson who had to sort out the issue.

37.	On 20 September 2008 the Claimant consulted the solicitors who represented him before the EAT for advice in relation to his directorship of the Italian company and on 21 or 22 September he resigned his directorships in the Italian and Spanish subsidiaries; he had not given any forewarning to the Respondent.  The letter resigning his directorship was sent by email to Mr Allirajah on Sunday 21 September; a copy was hand delivered on Monday 22 September and a further copy sent by recorded delivery.  The letter is at page 206 of our bundle.  The Employment Tribunal did not know why he thought it necessary to send this letter three times.

38.	The Claimant relies upon the letter as his principal disclosure.  He explains his decision to resign his directorships because he had discovered on Friday 19 December that, as a director of the Italian and Spanish subsidiaries, he was personally liable for the issues of non‑compliance with local legislation.  He made it clear he was not resigning from his position as European Financial Controller but his concern was to remove himself from the existing liabilities of the various European entities:

“I anticipate that when I have received full reassurance the issues listed below have been attended to, I will resume the directorship.”

39.	He goes on to explain his concerns which relate to health and safety issues concerning mandatory assessments and training and he repeats, again as questions rather than providing information, the matters referred to in his email of 5 September.  The Claimant did not know whether health and safety policy which had been drafted in English would be compliant with Italian or Spanish law and whether it would be adequate for employees whose mother tongue was not English.  He went on to raise matters relating to payroll and verification of employee status and pointed out criminal sanctions for failure to notify the employment office at the start of an employee’s work activity in Italy.  He drew attention to the fact that he had been advised it was a criminal offence not to pay the benefits for workers such as work accident insurance and social contribution and pension fund contributions.  The Employment Tribunal (paragraph 71) was satisfied that the letter contained some information which constituted a qualifying disclosure.  For some reason, although the letter was sent to Mr Allirajah, the Claimant did not send it to his line manager, Mr Wilson, who was also the director with responsibility for health and safety.

40.	On 22 September the Claimant sent an email account of his meeting with Sorefisa, financial consultants in Milan.  The email contained a list of 22 things the Claimant said he had been told were not being done properly by the Italian subsidiary.  The email concluded with the words, “more to follow”.  The email was sent at 03:46am.

41.	The Employment Tribunal was again critical of the Claimant’s conduct:

“73.	  Stepping back from the train of events for a moment, it seems that the Claimant was given information on Friday 19 September in Italy which alarmed him.  Rather than report this to, and discuss it with his colleagues, he instantly sought legal advice and tendered his resignation from his directorship to the CEO.  Looking at the terms of his email at page 874, he sought to place some responsibility for resolving these issues entirely on the shoulders of others without asking himself why he had been employed in the first place (see also page 873).  The matters that the Claimant described in his letter to Mr Allirajah were important and needed to be dealt with by the Respondent.  We find it difficult to understand, however, how anyone could reasonably conclude that they were of such significance and such urgency that the Claimant needed to resign his directorship forthwith that weekend without real or complete explanation to Mr Allirajah or his line manager Mr Wilson.  This demonstrates to us a lack of any sense of proportion, proper consideration for others or understanding of what he had been employed to do, which was to identify and find solutions to problems such as these.  We note that the Claimant had done nothing to investigate or verify Mattan’s original comments to him made at the beginning of September; nor had he resolved the cash deposit issue notwithstanding that he had been entrusted with this on 9 September (page 479); nor had he acted on Mr Allirajah’s suggestion that two people should be detailed for large cash collections for the improvement of security on cash collection despite his trips to and responsibility for the Italian subsidiary (page 36 of Appendix 2) and we contrast this with the obligations set out in his contract of employment.  We find the Claimant’s approach unimpressive.  The question remains, however, whether, having made qualifying disclosures, he was dismissed as a result of them.” 

42.	On 22 September 2008 Mr Wilson returned to the office after his one week holiday.  While he had been away the Claimant had sent the email of 14 September, had been upbraided by Mr Allirajah, he had had to intervene in the Vienna meeting with KPMG, he had learnt that the VMDL invoices had not been transferred to Ireland and that €33,000 had not been banked in Italy, nor had bank accounts in Italy been set up.  Mr Allirajah was furious about the letter of 21 September.

“This was the second occasion within a week in which the Claimant had acted crassly.  He was employed in a senior capacity to identify and solve problems arising out of the Respondent’s European operations.  He was paid well for this.  On the contrary, however, he had threatened to jeopardise important meetings the previous week because he was unhappy with his hotel and on this occasion he was rescinding forthwith his directorship without thought that the matters he raised required explanation and discussion almost certainly face to face.  In our view, his conduct as revealed by the papers showed a lack of judgment and this is why he was dismissed.  We think that there is a distinction to be drawn between the message contained in the Claimant’s letter and the way in which it had been communicated.  The matters he mentioned though serious were all capable of resolution and indeed some suggestions to resolve them had already been made by his colleagues.”

43.	The Employment Tribunal then turned to consider the evidence in paragraph 8 of Mr Wilson’s statement (repeated at paragraphs 18 and 19 of the Respondent’s first ET3 of 30 October 2008): 

“8. After my telephone conversation with Adam and KPMG, I telephoned Baskaran [Allirajah] to tell him the timescale we could expect from KPMG and also to raise my unhappiness that Adam had failed to successfully manage the meeting.  During our conversation, I told Baskaran that I did not think that Adam was the right person for the job of European Financial Controller.  He was not getting on with key duties in implementing Vectone’s launch in Austria, such as locating offices and obtaining critical tax advice.  He had not demonstrated any initiative and seemed to be unable to prioritise his responsibilities.  For these reasons, I didn’t think that he fitted into the company - Vectone expects its employees to be proactive in resolving problems and finding ways for the company to run more efficiently.  Baskaran does not like employees to go to him with problems, rather he expects to be presented with solutions.  I told Baskaran that I wanted to terminate Adam’s employment and find someone better suited for the role.  Baskaran told me that, if I wanted to sack him, then that was my decision, but suggested I dealt with it when I came back from holiday.  I therefore decided that I would terminate his employment the following week.”

44.	The Employment Tribunal specifically noted that this evidence had not been tested in cross‑examination, but concluded that it had the ring of truth given the papers its members had seen and the Claimant’s own evidence.  The Employment Tribunal went on to find on the balance of probabilities that a decision had been made in principle to dispense with the Claimant’s services on 16 September; this was delayed only because Mr Wilson was on holiday that week.  That was consistent with the events on Monday 15 September (meeting following the hotel email) and the phone calls Mr Wilson says he received that led him to intervene by phone in the Claimant’s meeting with KPMG Austria.  The Employment Tribunal also noted that the Claimant was still in the early stages of his probationary period when those events occurred.

45.	On 22 September 2008 the Claimant was invited by letter to a disciplinary hearing on 26 September.  The Employment Tribunal was satisfied this was a step 1 letter.  The grounds given to the Claimant for disciplinary action were his failure to prioritise his workload and for being engaged in another business (he was operating through a service company).  The Claimant at some time during this week emailed Ms Hamer asking time off for two days of the Jewish high holidays but received no reply.  The dates were both after his dismissal.  The Employment Tribunal found there was no evidence of any detriment and the treatment he received was not by reason of having raised health and safety issues or made protected disclosures.

46.	The Claimant sought legal advice on 23 September 2008 and raised a claim for expenses in the sum of £611.02.  On 24 September 2008 he again wrote to Mr Allirajah and relied upon this letter as a qualifying disclosure.  The letter did not raise new matters but added details to earlier comments about employment contracts in Italy and arrangements for cash collection.  This letter reinforced the Employment Tribunal’s view that the Claimant had acted precipitately on 21 September because clearly he felt the need to explain himself further.  Further, the decision to dismiss had been made before that letter was sent.  The Employment Tribunal went on to note that Mr Wilson made appropriate arrangements for the deposit of cash in Italy and resolved with little difficulty what the Claimant had described as a substantial problem.  Mr Wilson did not have the advantage of speaking Italian.

47.	The disciplinary meeting took place on 26 September 2008.  The Claimant was accompanied by Ms Mina Rocher.  The Employment Tribunal was satisfied this was a step 2 meeting under the statutory disciplinary and dismissal procedures then in force.  Issues raised by Mr Wilson concerned the existence of the Claimant’s private limited company and his alleged failure to complete preparatory work for the end of month accounts.  The Employment Tribunal accepted the Claimant’s evidence he had disclosed the existence of his limited company to Ms Hamer at his first interview and that he had undertaken the necessary preparatory work for the month end accounts.  The Employment Tribunal continued:

“Our impression is that the Respondent was ‘going through the motions’ at the hearing looking for reasons to justify its decision to dismiss.  The real reason was dissatisfaction with the Claimant’s performance and a lack of trust in his judgment.  Had this been a case of ordinary unfair dismissal the claim may have succeeded on this basis (perhaps with a large element of contribution); but it is not.  Critically we find that the reason the Claimant was in this meeting at all was because of his performance and attitude in the short weeks of his employment and not because of his disclosures.”

48.	In his witness statement (paragraph 20) Mr Wilson stated that:

“In every situation where Adam had been required to make a decision or find a resolution, he had failed to do so.  He needed a great deal of ‘hand-holding’ and seemed incapable of making a decision on his own.  Simply put, he wasn’t cut out for the job.”

49.	The Claimant did not suggest at the disciplinary meeting or during the course of the subsequent appeal that he was being dismissed by reason of having made a protected disclosure.  Nonetheless, on 4 October 2008 he lodged a grievance in which he alleged having been victimised by reason of his “whistle-blowing”.

50.	The Claimant was invited to an appeal meeting on 7 October 2008 when his grievances could also be discussed.  However, at this time he was having medical treatment in Israel and the appeal and grievances were overtaken by his award of interim relief.  Mr Wilson in his witness statement described as “ridiculous” the suggestion that the Claimant was dismissed because of his emails.

51.	On 3 November 2008, as we have already recounted, a Continuation of Contract Order, under s.128 of the Employments Right Act was made in the Claimant’s favour.

52.	On 23 December 2008 the Respondent offered the Claimant the services of a recruitment consultant or “headhunter” in an attempt to find him alternative employment.  The Employment Tribunal was satisfied that this was not a detriment.  On or about 23 July 2010 HMRC made an application to wind up the Respondent in the Companies Court.  On 15 December 2010 the HMRC withdrew that petition, which we believe may have been supported by the Claimant, but we may be wrong about this.  

The Claimant’s case before the Employment Tribunal
53.	The Claimant’s principal claim before the Employment Tribunal was that his dismissal was rendered automatically unfair by reason of s.103A of the Employment Rights Act by reason of his having made protected disclosures of health and safety complaints and that he had suffered detriments as a result.  These detriments included the following: (i) failure to pay expenses on 6 November 2008; (ii) holding disciplinary hearings on the grounds that he had made protected disclosures; (iii) failure to respond to his request for time off for Jewish holidays; (iv) failure to reply to a number of letters; (v) late payment of salary and contravention of the Continuation of Contract Order; (vi) failure to update the Claimant’s PAYE coding; (vii) failure to pay monthly instalments in respect of salary pursuant to the CCO via BACS; (viii) the provision of the services of the headhunter while he was still employed, which amounted, it is said, to interference.

The Decision of the Employment Tribunal
54.	The Employment Tribunal reminded itself of the procedural history and the parties’ failures of preparation.

55.	At the outset, as we have already noted at paragraph 4, the Employment Tribunal expressed surprise that the Respondent had called no witnesses but had tendered Mr Wilson’s witness statement.  The Employment Tribunal made clear that it had borne in mind that the Claimant had been subjected to cross-examination, whereas the potential witnesses for the Respondent had not.  The Employment Tribunal reminded itself that it had to decide the case on the primary facts revealed by the original documents and the evidence which the Claimant gave:

“We could, of course, take into account Mr Wilson’s statement and what is written in the Respondent’s Responses but the weight that we can attach to these documents is affected by the fact that they have not been tested to the same extent in cross‑examination.”

56.	At paragraphs 6-22 the Employment Tribunal identified the Claimant’s claims under ss.103A and 100(1)(e) of the Employment Rights Act, as well as his claim for PIDA detriments under s.47B, as well as detriments by reason of making health and safety disclosures under s.44 of the Act.  The Employment Tribunal also identified a claim for unlawful deduction from wages by reason of its failure to comply with the CCO and make payment according to the terms of the Employment Tribunal’s Judgment.  It also identified a claim in respect of failure to provide itemised wage slips.

57.	At paragraphs 23-27 the Employment Tribunal determined that the claims for automatically unfair dismissal and for detriment suffered were properly before it, contrary to submissions made by the Respondent; if the Employment Tribunal was wrong about this it would have allowed the Claimant to amend to raise these matters.

58.	The Employment Tribunal declined to allow the eighth originating application to be heard at the same time as the other seven.  It had only been lodged on 11 January and the Respondent had not yet entered a response.

59.	The Employment Tribunal then went on to refer itself to the relevant statutory provisions and authorities.  We shall refer to most of these later in our Judgment but for present purposes we note that the Employment Tribunal directed itself by reference to the following sections of the Employment Rights Act: s.103A, s.100, s.47B, s.44, s.43B, s.43C, s.130.  The authorities referred to included the decision of Woodward v Abbey National [2006] IRLR 677 on an employer’s liability for detriments incurred or imposed subsequent to the determination of the employment relationship; Kuzel v Roche Products [2008] IRLR 530, which placed the burden of proof on the claimant save in cases of dismissal where the burden was placed on the respondent.  It reminded itself again at paragraph 35 that the Respondent called no evidence and this fact was relevant to findings the Employment Tribunal made in those cases where the Respondent was unable to show the reasons for its actions.

60.	The Employment Tribunal also directed itself by reference to the decision in Dowling v Ilic Haulage & anor [2004] ICR 1176 on the construction of s.130 and Cavendish Munro Professional Risks Management PRM v Geduld [2010] ICR 325 on the distinctions between an employee imparting “information” and making an “allegation”. 

61.	The Employment Tribunal then set out the factual background largely as we have described it.  We note, as the Employment Tribunal noted, that Mr Wilson was not called to give evidence although he had been called to give evidence before the Employment Tribunal on an application by the Claimant for reinstatement and for a CCO.  We do not know why Mr Wilson was not called, nor do we know what explanation, if any, was given to the Employment Tribunal as to why he was not called.  The Claimant impressed upon us that Mr Wilson had given evidence at the hearing of 3 November 2008 and his evidence had not been accepted as to the reason for dismissal.  Further, it was impressed upon us that the Employment Tribunal did not fully accept Mr Wilson’s evidence in this regard in the decision under appeal.  The Claimant on the other hand had produced a detailed witness statement of some 61 pages and 351 paragraphs and had been cross‑examined upon it.

62.	The Employment Tribunal at paragraphs 51-52 concluded that the email of 5 September 2008 was not a qualifying disclosure in its own right.  The Employment Tribunal did not doubt the Claimant’s good faith but because the Claimant was seeking advice rather than making a statement of facts he believed showed a breach of health and safety requirements there was no imparting of information.  Further, were the Employment Tribunal to be wrong as to whether or not the email constituted a qualifying disclosure, it was satisfied the Claimant had not been dismissed or indeed suffered any detriment as a direct result of this email.  The Employment Tribunal noted that shares had been issued to the Claimant on 9 September and this was not consistent with the Claimant suffering any detriment, nor was it consistent with Mr Allirajah “taking against him” at that stage.  In relation to the email sent on 14 September, to which we have already referred, we have already called attention to the Employment Tribunal’s criticism of the Claimant in this regard to be found at paragraph 56.

63.	Insofar as the meeting with Mr Allirajah on 15 September 2008, the Employment Tribunal, unlike the Claimant, was unsurprised that the Claimant met with an angry reaction.

64.	In relation to the letters of 21 September the Employment Tribunal, again as we have noted, accepted that these contained qualifying disclosures and a health and safety disclosure.  The Employment Tribunal at paragraph 73-74, to which we have already referred, was highly critical of the Claimant for his premature resignation of directorships that demonstrated a lack of any sense of proportion, proper consideration for others or understanding of what he had been employed to do.  The Claimant had done nothing to investigate or verify Mattan’s original comments, nor had he resolved the cash deposit issue notwithstanding he had been entrusted with this on 9 September.  Nor had he acted on a suggestion made by Mr Allirajah that two people should be detailed for large cash collections for the improvement of security on cash collection, despite his trips to and responsibility for the Italian subsidiary.  The Employment Tribunal found the Claimant’s approach to have been “unimpressive”.  Although the disclosures were accepted by the Employment Tribunal to be qualifying disclosures it had to go on to consider whether he was dismissed as a result of them.

65.	Again, we have already noted that at paragraph 75 the Employment Tribunal found that a decision in principle to dismiss the Claimant had been made on or about 16 September; again, the Employment Tribunal directed itself impeccably when considering Mr Wilson’s statement, but again noting that it had not been tested in cross‑examination.  The Employment Tribunal was critical of the Respondent at paragraph 80 for “going through the motions” at the disciplinary hearing looking for reasons to justify its decision to dismiss.  However, the Employment Tribunal was satisfied that:

“The real reason was dissatisfaction with the Claimant’s performance and a lack of trust in his judgement. […] Critically we find that the reason the Claimant was in this meeting at all was because of his performance and attitude in the short weeks of his employment and not because of his disclosures.”

66.	The Employment Tribunal did not accept the Claimant’s assertion that he did not suggest at the disciplinary meeting that his dismissal was by reason of his having made protected disclosures because he believed it would be dealt with in the course of his grievance.  This was specifically rejected by the Employment Tribunal as it would be a surprising stance to have taken for someone, as the Claimant claimed that he was, who was trying to keep his job.  Nor did it sit happily with the comments in paragraph 244 of his witness statement when he said he was depending on Mr Wilson to “see the light” in the disciplinary meeting.

67.	As we have noted, a number of payments made after the CCO in respect of monthly salary instalments were paid between one and six days late.  As the Claimant had established a detriment the Employment Tribunal found that it fell to the Respondent to show the ground for this and it had failed to give any explanation as to why the payments were made late.  Accordingly, that element of the Claimant’s claim succeeded.  There would also be a breach of the CCO in respect of late payments.

68.	In relation to the assertion that failure to pay by BACS was concerned and whether this amounted to a detriment, the Employment Tribunal noted that the CCO did not provide for payment by BACS and that even if the Claimant may have had a contractual right to payment by this method - paragraph 6:2 of the agreement entitled the Claimant to have his salary paid “directly into your bank or building society” - this was not a provision continued by the CCO on the authority of Dowling, because the CCO did not preserve a contract of employment as such, but only preserved the obligation to pay as defined in the order and continuity of employment.  Further, although the Respondent was in breach of the CCO by tendering payment late, it was not in breach by failure to pay by BACS or paying by cheque.  The Employment Tribunal stated that it took “account of the fact that a cheque is regarded as the equivalent of cash”.  Accordingly it did not find that the method of payment adopted by the Respondent constituted an actionable detriment, though the late payment was capable of being such a detriment.

69.	Delay in arranging PAYE coding was found to be a detriment but it did not occur because of the Claimant having made any actionable disclosures; this claim, therefore, was not established.

70.	So far as the late payment of expenses was concerned this was a detriment and again the Respondent had failed to show the ground for late payment.  This aspect of the claim succeeded. 

71.	So far as the BUPA and travel insurance claims were concerned there was no detriment because the Claimant was only entitled to the BUPA insurance at the end of his three month probationary period, so no right as such was withdrawn.  The travel insurance was for business travel only and the Claimant undertook no business travel for the Respondent after 26 September so again there was no detriment.  These claims were untenable following Dowling.

72.	The Employment Tribunal then considered the offer by the Respondent of the services of the recruitment consultant or “headhunter”.  This was not a detriment.  So far as the failure to respond to correspondence was concerned the Employment Tribunal found there was no detriment; the email of 5 September was responded to though not in writing.

73.	There were outstanding issues relating to deduction of wages and failure to provide itemised payslips.  The Employment Tribunal adjourned consideration of these matters as neither party had adequately prepared for the determination.

Notice of Appeal and submissions and support
74.	The Claimant’s principal point of appeal related to the evidence of Mr Wilson because he was not called and so could not be cross‑examined.  The Claimant relied upon the decision of Snowball v Gardiner Merchant [1987] ICR 719 for the proposition that although an Employment Tribunal has a wide discretion as to the admission of evidence, it needs to have regard to well established rules of evidence.  There was no explanation as to why Mr Wilson had not been called.  His witness statement was criticised as not being contemporaneous; he had a motive to be dishonest and the statement contained multiple hearsay in relation to the meetings that took place in Vienna and there was no explanation as to how the witness statement came to be made.

75.	The Employment Tribunal clearly did not accept all of Mr Wilson’s evidence but accepted the reasons he had given for dismissal.  This was an inconsistency that should have been explained.  Further, once the Employment Tribunal had the CCO hearing the Claimant was entitled to say that supported the view that the Claimant had been dismissed for “whistle-blowing”.

76.	Eight specific findings of fact were attacked by the Claimant but only two of these were developed in oral submissions: (i) paragraph 56, the Claimant’s conduct in relation to the email of 14 September as demonstrating the Claimant’s poor judgment and lack of sense of proportion; (ii) the finding at paragraph 58 that the meeting with Mr Allirajah on 15 September was a “watershed”; (iii) paragraph 63 and the Respondent having concerns about the Claimant’s ability to deliver; (iv) paragraph 74 the finding that no doubt Mr Allirajah was “furious”; (v) the finding that the decision to dismiss the Claimant had been made in principle on 16 September (paragraph 75); (vi) the finding at paragraph 80 that the reason for dismissal was dissatisfaction with the Claimant’s performance and a lack of trust in his judgment; (vii) the finding at paragraph 77 that failure to reply to an email in which the Claimant sought time off for Jewish holidays which occurred after the date of dismissal was not a detriment and was not by reason of his having done a protected act; (viii) the finding by the Employment Tribunal at paragraph 87 that the Respondent was attempting to comply with the CCO and configured the payroll to do this.

77.	It was also submitted the Employment Tribunal ignored evidence that the Claimant was knuckling down and taking the Respondent’s concerns on board.  Mr Jones returned to attack the decision of the Employment Tribunal to make findings against the Claimant on the basis of Mr Wilson’s untested evidence.  The Employment Tribunal should have paid specific regard to the criteria set out in s.4(2) of the Civil Evidence Act, and quoted from the decision in Snowball v Gardiner Merchant.

“In spite of the wide discretion which Parliament has entrusted to an Industrial Tribunal, it must not however be exercised in a capricious fashion. In particular a Tribunal must not ignore nor totally disregard the well-established principles of law with reference to the admissibility of evidence.”

78.	Although Mr Jones recognised the breadth of Employment Tribunal rule 14(2) he nonetheless submitted that the Employment Tribunal should have had regard to the provisions of the Civil Evidence Act and indeed was bound to apply the principles or criteria set out in s.4(2) of that Act.

79.	The Employment Tribunal had given an insufficient answer under s.103A of Employment Rights Act as to the reason or principle reason for the Claimant’s dismissal.  This question could only be answered by careful analysis of what was the reason or principal reason for the dismissal and that would involve exploring the professed reason, the actual reason and motivation, whether conscious or not.  This process was of particular importance where the professed reason was not accepted.  Reliance was placed upon the well known decision in Anya v University of Oxford [2001] ICR 848.

80.	Where the Claimant’s evidence conflicted with that of Mr Wilson the decision of the Employment Tribunal was not Meek compliant because the Employment Tribunal failed to explain why it preferred Mr Wilson’s evidence.  In discrimination cases, oral evidence is of particular importance.  Mr Jones drew our attention to a decision in the commercial court of HHJ Mackie QC in Webster Thompson Ltd v JG Pears (Newark) Ltd [2009] EWHC 1070 (Comm).  HHJ Mackie accepted that a court should be careful not to determine the central issue in a case on the basis of hearsay evidence alone, quoting the decision of Dyson LJ in Welsh v Stokes [2008] EWCA Civ 796; we note at this point that the Employment Tribunal in the instant case did not decide the case solely on the basis of hearsay evidence.  It relied extensively on contemporaneous documents, the Claimant’s own evidence and the unchallenged minutes of the meeting of 15 September 2008.

Protected disclosures
81.	The Claimant challenges the Employment Tribunal’s treatment of the disclosures of 5, 21 and 24 September 2008.  In relation to the email of 5 September 2008 the Employment Tribunal was wrong to have found that the email constituted a request for advice rather than the imparting of information.  There is no reason why a qualifying disclosure could not be in the form of identifying the problem and asking what was to be done about it.  Mr Jones reminded us that a claimant need only have a reasonable belief in there being a breach of a legal obligation; see Babula v Waltham Forest College [2007] ICR 1026.  In relation to the letter of 21 September 2008, although it is accepted that a distinction can be drawn between the making of a protected disclosure and the manner in which it is made, such a distinction should only be drawn in extraordinary cases; see Martin v Devonshires Solicitors [2010] UKEAT/0086/10/DA.

82.	It was submitted that the Employment Tribunal having found that the letter of 21 September amounted to a protected disclosure should have held that it formed the basis for the findings of subsequent victimisation.  If this had acted on the Respondent’s mind insofar as the specific detriments were concerned, it was inconsistent for the Employment Tribunal not to similarly hold that it affected the Respondent’s mind as to the reason for dismissal.

83.	In relation to the disclosure of 24 September 2008 the Employment Tribunal had ignored s.43L(3) of the ERA.  There was no reason why information needed to be new.

Detriment
84.	Failure to pay by BACS was a detriment as well as a breach of contract.  The contract was continued by the CCO; Burton J was wrong in Dowling to say that the contract was not continued save only for the purposes of giving effect to the section.  We are not able to agree with this submission and we should follow the decision of Burton J unless it can be demonstrated that it is clearly wrong.  We do not consider that it is.  We shall turn to the case later in this Judgment.

85.	Mr Jones submitted in relation to failure to pay by way of BACS that the Claimant had the inconvenience of having to pay in cash or cheques.  Just as late payment amounted to a detriment so was non‑payment by BACS.  

BUPA and travel insurance
86.	Mr Jones submitted that the Claimant was entitled under s.130 to the benefit of both BUPA and travel insurance, even though at the date of dismissal the Claimant’s right to BUPA had not accrued, as it was a benefit continued by the CCO.  Similarly the Claimant lost the benefit of travel insurance; we put to Mr Jones that it could not be said he had suffered any detriment because travel insurance was only available for the purposes of company travel and he undertook no such travel after the date of his dismissal.

Failure to reply to correspondence, grievances and protected disclosures
87.	The Respondent, it was submitted, was bound to have the grievances resolved quickly and there was no evidence as to why the Respondent had not responded.  Mr Jones turned to consider complaints made against the Claimant.  Insofar as the Vienna hotel was concerned, the Claimant acted reasonably.  He did not want to book a hotel himself and put the bill on his credit card without express prior authority as was required by his contract.  In relation to complaints that he had not taken action to remedy issues in Italy, he had no authority to do so.

88.	After the completion of submissions there arose the question of whether certain documents had been made available to us.  We said we would permit those missing documents to be supplied to us.  The Claimant (rather than counsel) took the opportunity to provide us with a detailed three page letter with additional documents and authorities.  We had at that point in time concluded our discussions as to our decision even though the Judgment had yet to be written.  These additional submissions largely replicated earlier submissions and in the circumstances, rather than call for further submissions from the Respondent and arrange further discussions between ourselves, we decided that the additional submissions did not assist us or raise any new point but largely repeated and expanded upon earlier points and inadmissibly attempted to re-argue facts.  Why the Claimant has chosen to lodge such a submission is not clear to us.

The Respondent’s case and submissions
89.	Mr Timothy Brown submitted that the Claimant had failed to ask whether the Employment Tribunal had taken the correct approach to the evidence.  He submitted that the correct approach was to ask what were the primary findings of fact by the Employment Tribunal; was there sufficient evidence to support those findings; what conclusions were made that were based on those findings; and did the primary findings support those conclusions.  The Claimant had accepted that the Employment Tribunal was not bound to draw an inference for the failure to call a witness.  It had directed itself correctly as to the approach to evidence that had not been tested in cross‑examination.  It directed itself correctly as to the burden of proof in paragraph 35.

90.	In relation to the email at page 203 of 5 September, what protected disclosure could there be?  The Claimant had made insufficient enquiries to enable him to form a reasonable belief.  He was unable to say how often and for how long Mattan had to sleep on the road.  Further, the Claimant failed on the issue of causation; see paragraph 51 where the issues were addressed and at paragraph 73 the Employment Tribunal concluded that even if the email relating to Mattan amounted to a protected disclosure no detriment had been suffered as a result of his making the disclosure. 

91.	It is quite clear that in the important paragraphs 55 and 56, the Employment Tribunal was relying on primary facts from contemporaneous documents.  The Claimant could not possibly show that the conclusions reached by the Employment Tribunal at paragraphs 56 and 57 were unreasonable, let alone perverse. 

92.	The Employment Tribunal was entitled to describe at paragraph 58 the meeting of 15 September as being a “watershed” in the sense that it was a “defining moment” in the sense of an important and damaging event in the parties’ relationship.  The minutes were a reliable and highly probative record of what actually occurred.  Concerns about the Claimant’s ability to deliver were not restricted to Mr Wilson’s witness statement, but also, as identified by the Employment Tribunal at paragraph 63 and in the minutes of the meeting of 15 September, Mr Allirajah’s unhappiness was manifest and, on the findings of the Employment Tribunal, wholly justified.  The Respondent’s concerns were wholly consistent with Mr Wilson considering that he had to intervene when on holiday in an important meeting that should have been conducted solely by the Claimant.

93.	Mr Brown dismissed the suggestion that there may have been unconscious discrimination.  Mr Wilson’s expressions were just as consistent with his considering the Claimant to be a liability as a “whistle-blower” and this view was supported by the contemporaneous documentation.

94.	The challenge to the finding that Mr Allirajah was “furious” on receipt of the letter of 21 September was clearly supported by the facts.  The Employment Tribunal found that the Claimant had resigned the Italian and Spanish directorships unnecessarily and Mr Allirajah would have thought so too in the light of the Claimant’s earlier conduct.  The Employment Tribunal had recorded Mr Wilson saying that the letter would “not go down well” at the meeting.

95.	In relation to the finding at paragraph 75, the decision to dismiss the Claimant that had in principle been taken on 16 September was not based solely on Mr Wilson’s witness statement but also by reference to the whole series of events and the Claimant’s own evidence with which Mr Wilson’s witness statement was consistent.  Mr Brown submitted that although the Employment Tribunal rejected the ostensible grounds for dismissal it was entitled to find that the Claimant’s poor judgment and performance rather than protected disclosures were the grounds for his dismissal.  It was not the disclosures that concerned the Respondent but the fact that the Claimant behaved in an inappropriate manner, bothered the CEO with problems he was supposed to deal with himself or by contacting other employees whose responsibility it was to deal with such problems.  It was evident from the minutes of the meeting of 15 September that he was interfering in areas outside his job description, bothering the CEO over a weekend and failing to produce solutions himself.  We should bear in mind that it was the Claimant’s job to identify shortcomings and deal with them himself.

96.	Mr Brown submitted the Employment Tribunal was entitled on the evidence to conclude that the reason for his dismissal was that given by Mr Wilson.  In short, his poor performance, rather than having made protected disclosures.  The Employment Tribunal had directed itself correctly and there was no error of law.  The conclusions were Meek compliant.  

97.	So far as the categorisation of the protected disclosures was concerned, the Employment Tribunal’s interpretation of the email of 5 September was correct.  The email did not assert that a specific malpractice had occurred because the Claimant was unclear as to what the facts actually were.  Mr Brown submitted that in cross‑examination he had confirmed he simply did not know how long Mattan had been driving or what the circumstances were.  He had not exercised any judgment about what he had been told about Mattan nor had he formed any particular belief based on the information.  He was simply discussing the possibilities of what the actual situation might amount to once established. 

98.	So far as the disclosures of 21 September were concerned the Employment Tribunal did not accept the Claimant’s contention that simply because he had made protected disclosures his dismissal was by reason of those disclosures.  The Employment Tribunal had explained why it concluded the Claimant showed a lack of judgment and it was entitled to conclude that the dismissal was because of that conduct.

99.	In relation to detriment Mr Brown submitted that the CCO did not specify the method of payment, only that it should be made by a particular date.

The law
100.	It is helpful to set out the relevant statutory provisions defining the protected and qualifying disclosures so far as relevant to this case and also relating to health and safety disclosures.  S.43A of the Employment Rights Act defines a protected disclosure as follows:

“[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.]”

101.	A qualifying disclosure is defined in S.43B:

“[(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, 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,
.........
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.
(5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).]”

102.	We note in passing that the Claimant is only required to have a reasonable belief that there has been a breach of a legal obligation on the part of the employer; see Babula v Waltham Forest College [2007] ICR 1026.  S.43C defines how a qualifying disclosure is made as follows:

“[(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith—
(a) to his employer, or
(b) where the worker reasonably believes that the relevant failure relates solely or mainly to—
(i) the conduct of a person other than his employer, or
(ii) any other matter for which a person other than his employer has legal responsibility,
to that other person.”

103.	S.44 provides that an employee has the right not to be subjected to any detriment on the grounds he has raised health and safety issues:

“(1) An employee 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—
(a) having been designated by the employer to carry out activities in 
(c) being an employee at a place where—
(i) there was no such representative or safety committee, or
(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,
he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,
(4) . . . this section does not apply where the detriment in question amounts to dismissal (within the meaning of [Part X]).”

104.	S.100 protects employees against being dismissed by reason of having made health or safety disclosures:

“(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—
(c) being an employee at a place where—
(i) there was no such representative or safety committee, or
(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,
he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,..”

105.	S.103A provides that an employee dismissed by reason of having made a protected disclosure should be regarded as having been unfairly dismissed.

“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.]”

106.	We also have in mind the principle set out in Woodward v Abbey National [2006] IRLR 677 that an employer can incur liability for victimisation that takes place after termination of the contract of employment.  We also have regard to Kuzel v Roche Products [2008] IRLR 530 which makes clear that the employee has the burden of showing that a dismissal is by reason of having made a protected disclosure; it is accepted by both the Claimant and Respondent that the same principle would apply to a health and safety disclosure.

107.	A distinction needs to be drawn between the fact of making a protected disclosure and the manner of making it, although there is need to exercise some caution in this regard; see Martin v Devonshires Solicitors [2010] UKEAT/0086/10/DA, where the claimant was dismissed after making false allegations of discrimination even though made in good faith because her conduct raised mental health issues.  The dismissal was not an act of victimisation but because the employer considered that the further manifestation of mental health issues was likely to lead to disruptive behaviour in future; in this regard, see Underhill J at paragraph 22.

“The question in any claim of victimisation is what was the "reason" that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. The most straightforward example is where the reason relied on is the manner of the complaint. Take the case of an employee who makes, in good faith, a complaint of discrimination but couches it in terms of violent racial abuse of the manager alleged to be responsible; or who accompanies a genuine complaint with threats of violence; or who insists on making it by ringing the Managing Director at home at 3 o'clock in the morning. In such cases it is neither artificial nor contrary to the policy of the anti-victimisation provisions for the employer to say "I am taking action against you not because you have complained of discrimination but because of the way in which you did it". Indeed it would be extraordinary if those provisions gave employees absolute immunity in respect of anything said or done in the context of a protected complaint.... .  It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had say, used intemperate language or made inaccurate statements. An employer who purports to object to "ordinary" unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases. But the fact that the distinction may be illegitimately advanced made in some cases does not mean that it is wrong in principle.”

108.	We also have regard to what Wall J had to say in Hossack v Kettering Borough Council EAT/1113/01 paragraph 41:

“We see the force of Mr McGrath's anxiety that a differentiation between the content of a disclosure and the manner in which it is made could, if not carefully analysed, emasculate the legislation. Plainly, any Tribunal approaching a protected disclosure will need to be alert to that danger. In our judgment, however, this Tribunal was so alert, and its conclusions are not only, in our view, correct in law, they also accord with common-sense and in no way offend against either the spirit or the letter of the legislation.”

109.	We now turn to consider the law relating to the use of hearsay evidence in Employment Tribunals.  The starting point is rule 14(2) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.

“14 
(2) So far as it appears appropriate to do so, the chairman or tribunal shall seek to avoid formality in his or its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts.
….
(5) If a party wishes to submit written representations for consideration at a hearing (other than a case management discussion) he shall present them to the Employment Tribunal Office not less than 7 days before the hearing and shall at the same time send a copy to all other parties.”

110.	Mr Jones argued that in the circumstances of this case the Employment Tribunal was in effect bound to give specific consideration to the matters relevant to the weighing of hearsay evidence to be found in s.4 of the Civil Evidence Act 1995 and applied in civil courts.  S.4 is as follows:

“4 Considerations relevant to weighing of hearsay evidence
(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2) Regard may be had, in particular, to the following—
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”

111.	He relied strongly on the decision of the Employment Appeal Tribunal (Sir Ralph Kilner Brown) in Snowball v Gardiner Merchant [1987] ICR 719 at page 722.

“In spite of the wide discretion which Parliament has entrusted to an Industrial Tribunal, it must not however be exercised in a capricious fashion. In particular a Tribunal must not ignore nor totally disregard the well-established principles of law with reference to the admissibility of evidence.”

112.	We were also referred to other cases in the civil courts where the strict rules of evidence including the Civil Evidence Act apply.  In Welsh v Stokes [2008] 1 WLR 1224 the claimant had fallen from a horse at a road junction and only hearsay evidence was available as to the circumstances, made in a statement of an unknown motorist to another witness.  The trial judge accepted the hearsay evidence as reliable.  Dyson J had this to say at paragraph 22 of his Judgment:

“22. In my judgment, therefore, the judge was entitled to infer that the hearsay evidence was reliable and conclude that he should give it weight. He reached a conclusion that was reasonable and well within the ambit of conclusions that were reasonable for a court to reach. Even if the hearsay evidence were the only evidence on which the claim was based, I would not accept that this was necessarily a reason for giving it no weight. It would depend on all the circumstances. I accept that there will be cases where it is so unfair to hold a defendant liable solely on the basis of hearsay evidence that a court should place little or no weight on the evidence. Consideration of the factors stated in section 4(2) will point the way, but will not necessarily be determinative. In some cases the defendant may be able to adduce evidence to contradict, or at least cast doubt on, the hearsay evidence. But there will also be cases, like the present, where the defendant is not in that position. Apart from the unidentified motorist and the claimant, there were no witnesses to the accident. In such a case, there may be said to be unfairness to the defendant in having to face hearsay evidence which he cannot directly challenge. On the other hand, there would be unfairness to the claimant to place no weight on the hearsay evidence, since without it her claim would inevitably fail.
23. The decision what weight (if any) to give to hearsay evidence involves an exercise of judgment. The court has to reach a conclusion as to its reliability as best it can on all the available material. Where a case depends entirely on hearsay evidence, the court will be particularly careful before concluding that it can be given any weight. But there is no rule of law which prohibits a court from giving weight to hearsay evidence merely because it is uncorroborated and cannot be tested or contradicted by the opposing party. I do not consider that the statements in the authorities relied on by Miss Rodway in her skeleton argument support such an extreme proposition.”

113.	It is to be noted that Dyson J considered that even where a case depended “entirely” on hearsay evidence the court had to exercise its judgment and reach a conclusion as to its reliability as best it could on all available material.  In the present case, as we have noted, the Employment Tribunal had contemporaneous documents and the evidence of the Claimant himself in addition to Mr Wilson’s witness statement.

114.	For the sake of completeness we also refer to the decision of HHJ Mackie QC in Webster Thompson Ltd v JG Pears (Newark) Ltd [2009] EWHC 1070 when he said that the court should be careful not to determine the central issue of the case on hearsay evidence alone, but again he stressed the importance of the discretion of the judge as to the weight to be given to such evidence.

115.	We now turn to consider the effect of the order for the continuation of the contract of employment made under s.130 of the Employment Rights Act.

116.	An employee who is dismissed by reason of having made health or safety disclosures (see s.100(1)) or for making protected disclosures (see s.103A) is entitled to seek interim relief under s.128 pending determination of his complaint.  The relevant procedure is set out at paragraph 129.  Paragraph 130 provides as follows:

“130 Order for continuation of contract of employment
(1) An order under section 129 for the continuation of a contract of employment is an order that the contract of employment continue in force—
(a) for the purposes of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters, and
(b) for the purposes of determining for any purpose the period for which the employee has been continuously employed,
from the date of its termination (whether before or after the making of the order) until the determination or settlement of the complaint.
(2) Where the tribunal makes such an order it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the complaint.
(3) Subject to the following provisions, the amount so specified shall be that which the employee could reasonably have been expected to earn during that period, or part, and shall be paid—
(a) in the case of a payment for any such period falling wholly or partly after the making of the order, on the normal pay day for that period.”

117.	The effect of s.130 was considered by Burton J in Dowling v Ilic Haulage & anor [2004] ICR 1176.  He was considering the statutory predecessor of what is now s.130, paragraph 24.1:

“24.1 I am satisfied that what is effected by the Continuation Order is not only not a contract of employment within s230 of the 1996 Act or Regulation 2(1) of TUPE because of what Dr Davies called the "purely statutory and unilateral [because no service was required]" nature of it. It is wholly different from the examples referred to in Miss Morris' third submission, of employees whose contracts of employment have not terminated but in which they are absolved from providing services under the contract by the terms of it, or some statutory implication into it. Those who are the subject of a Continuation Order are ex-employees, whose contracts have terminated, such that, as Mr Dulovic put it, there is no subsisting contract of employment upon which Regulation 5(1) can have any effect (as in Secretary of State for Employment v Spence [1986] ICR 651). The Continuation Order could be revoked by application under s165(1) of the 1992 Act, set out in paragraph 4 above "on the ground of a relevant change of circumstances since the making of the order". ......
24.3 In any event it is, in my judgment, quite plain that the Continuation Order is not intended to and does not effect a statutory continuation of the contract of employment, even allowing for the fact that it would need to be varied by exclusion of a most significant element of it, namely the obligation to serve, as discussed above. Section 164 is careful in its terminology. It prescribes that there are two purposes for which the contract of employment continues in force, the first ((a)) for the purposes of pay and benefits, with the applicant being paid an amount to "be determined as if he had not been dismissed [s164(7)]" and also ((b)) "for the purpose of determining for any purpose the period for which the employee has been continuously employed". Miss Morris accepted that these two purposes are the exclusive purposes of s164(1): it is to be noted that in s79(1) of the Employment Protection Act 1975 (the immediate predecessor of the consolidating Act of 1992), to which Miss Morris herself referred, and which she accepted fell to be interpreted in the same way as s164 in the consolidating Act, the slightly different formulation of the same provision makes it clear that the continuation was "only" for the two purposes. The first purpose therefore is quite clearly only related to protecting the employees' rights to payment and benefits. The second purpose was also at any rate expressed as if it was intended to be only one dedicated to be towards calculation, i.e. calculation or determination of the period of continuous employment. This meant for example that, as and when the unfair dismissal claim was heard, although the effective date of termination would still remain the same, the calculation, and entitlement, based on continuity would not be based on that date.”

118.	So far as our general approach to the decision of the Employment Tribunal is concerned, we remind ourselves of the very high threshold required for a successful perversity appeal; see Yeboah v Crofton.  The need for an Employment Tribunal to provide sufficient reasons to enable the parties to know why they have won or lost respectively is well known and set out in the cases of Meek and Anya so we do not need to refer to them.  There is no need for an Employment Tribunal to refer to all the evidence or all the submissions, and it is pertinent to bear in mind the Judgment of Waite J in RSPB v Croucher [1984] ICR 604:

“We have to remind ourselves also of the important principle that decisions are not to be scrutinised closely word by word, line by line, and that for clarity’s and brevity's sake Industrial Tribunals are not to be expected to set our every factor and every piece of evidence that has weighed with them before reaching their decision. So it is for us to recall that what is out of sight in the language of a decision is not to be presumed necessarily to have been out of mind. It is our duty to assume in an Industrial Tribunal’s favour that all the relevant evidence and all the relevant factors were in their minds, whether express reference to that appears in their final decision or not; and that has been well established by the decisions of the Court of Appeal in the Retarded Children's Aid Society v Day [1978 IRLR 128.”

119.	We also note that there is no need for the Employment Tribunal to refer to all the evidence and to all of the submissions (see Balfour Beatty Power Networks v Wilcox [2007] IRLR 63 per Buxton LJ).  We mention this because of a submission by the Claimant that the Employment Tribunal had failed to take into account the fact that he had apparently “knuckled down” to compliance with the Respondent’s requirements.

Conclusions
120.	The principal complaint made by the Claimant is the Employment Tribunal’s reliance upon the witness statement of Mr Wilson and its consequent finding that he had not been dismissed by reason of having made protected disclosures or health and safety disclosures.  

121.	It is clear that an Employment Tribunal is not obliged to treat hearsay evidence strictly in accordance with the Civil Evidence Act as made clear in Employment Tribunal rule 14(2).  It is nowadays commonplace for Employment Tribunals to receive hearsay evidence in witness statements or other documents.  Indeed the Claimant himself relied upon the statements of two witnesses who were not called to give evidence.  We can safely assume the Employment Tribunal is, therefore, well aware of issues that arise as to the weight of such evidence, in particular because the witness will not have been subjected to cross‑examination.  We can, therefore, assume the Employment Tribunal was aware of the matters raised by Mr Jones and it is clear to us that the Employment Tribunal carried out the appropriate weighing exercise and set Mr Wilson’s evidence clearly in the matrix of the contemporaneous documents and the Claimant’s own evidence.

122.	The Employment Tribunal gave clear reasons why Mr Wilson’s evidence was accepted as to the reason for dismissal.  The Employment Tribunal itself drew attention to the fact it was somewhat surprising the Respondent had elected to call no evidence; as Mr Singh pointed out during the course of submissions, that suggests to us that the Employment Tribunal was well aware of the need for special care in a case where the Employment Tribunal was placing reliance upon the witness statement of someone who was not called.  We reject the suggestion that the Employment Tribunal was bound to specifically make reference to the criteria set out in the Civil Evidence Act, as a civil court might be required to do.  The principal reason for concern about Mr Wilson’s evidence was the fact that he was not cross‑examined.  The Employment Tribunal made it clear at the outset at paragraph 4 that they needed to bear this in mind.  They returned to this matter again at paragraph 75 and at paragraph 35 when discussing the burden of proof and that, although the burden of proof was often not determinative, in the instant case the Respondent had not called evidence of its own and that had a bearing on some of the findings the Employment Tribunal made.

123.	It is important to stress again that the Employment Tribunal did not rely solely upon the evidence of Mr Wilson.  His evidence was in part complemented and in part corroborated by contemporaneous documents, including the Claimant’s letters and emails and the minutes of the meeting with Mr Allirajah of 15 September.  The Employment Tribunal noted that these minutes had been accepted as accurate and the substance of the minutes was not challenged by the Claimant.  The Employment Tribunal also had the Claimant’s own evidence.

124.	In a number of respects the Employment Tribunal rejected his evidence. (a) By way of example at paragraph 68 they rejected his evidence as to whose responsibility it was to make arrangements for banking cash in Italy. (b) It rejected the Claimant’s evidence as to the nature of the email of 14 September. (c) It rejected the Claimant’s case that Mr Allirajah at the meeting of 15 September was simply annoyed as to a single issue as the Claimant asserted, rather than as the Employment Tribunal found, that he was concerned about a number of matters which raised issued as to whether the Claimant could be regarded as a reliable employee.

125.	In considering the evidence the Employment Tribunal was entitled, and indeed bound, to have regard to the fact that the Claimant was a highly paid employee whose responsibility it was to identify and resolve problems concerning financial matters.

126.	As we have said, the Employment Tribunal was entitled to draw conclusions from contemporaneous documents.  We draw attention to the criticism made by the Employment Tribunal of the Claimant’s conduct in paragraph 56 in relation to the email of 14 September that he had sent on Sunday because this showed poor judgment and no sense of proportion on the part of the Claimant, its tone was “surprising”, the Claimant had initially said this was a perfectly innocent email although he later accepted “with hindsight” that he could have raised his concerns in a more diplomatic way, and the Employment Tribunal was unable to accept the Claimant’s evidence that this was an appropriate and measured communication; it found such an assertion difficult to understand.

127.	The Employment Tribunal found that the Claimant was willing to jeopardise the Austrian trip and the vital meeting with KPMG.  He appeared to have no appreciation of the difficulty at which his email placed persons at different ends of the Respondent’s corporate structure, the CEO on the one hand and a junior clerk on the other.  It also showed a lack of initiative on the Claimant’s part.  He should have sorted out the hotel himself; we did not find his explanation that he was unwilling to use his own credit card because this had not been expressly authorised in advance as convincing.  We also refer to the findings of the Employment Tribunal at paragraph 58 where the Employment Tribunal concluded that Mr Allirajah at this meeting had genuine concerns about the Claimant’s qualities as a reliable employee and that he had focussed on issues more properly addressed by others and without a full understanding of the facts or time for reflection upon them.

128.	The Employment Tribunal was also entitled to conclude that the Claimant’s resignation from the Italian (and Spanish) subsidiaries as referred to in paragraph 73 justified the finding that the matters upon which the Claimant reported were not of such significance and urgency as to justify his resignation forthwith that weekend without prior reference to anyone in the Respondent.  The Employment Tribunal was entitled to conclude that, objectively, the Claimant’s actions were unnecessary and Mr Allirajah was likely to have taken the same view.  At paragraph 74 the Employment Tribunal concluded, as it was entitled to, on the evidence, that Mr Allirajah was furious when he received the letter of 21 September.  That was the second occasion within a week in which the Claimant had in the words of the Employment Tribunal acted “crassly”.  He was employed in a senior capacity to identify and solve problems arising out of the Respondent’s European operations and was well paid; on the contrary, however, he had threatened to jeopardise important meetings the previous week because he was unhappy with his hotel and he now had resigned his directorships without thought that the matters he raised required explanation and discussion.  The Employment Tribunal was again entitled to conclude that the Claimant’s conduct, “as revealed by the papers” showed a lack of judgment and that was why he was dismissed.

129.	Accordingly we would reject the criticism of the Employment Tribunal’s having accepted Mr Wilson’s evidence.  The decisions of the Employment Tribunal were not based solely upon Mr Wilson’s evidence but firmly rooted in the contemporaneous documents.  The contents of the Claimant’s own documents reveal his somewhat petulant conduct and poor judgment that justified the Respondent in losing all trust in his ability to perform.

130.	We accept the Respondent’s submission (which was not really contentious) that is was necessary to show that the Employment Tribunal had made primary findings of fact and that there was sufficient evidence to support those findings of fact.  It was necessary to show what conclusions had been reached by the Employment Tribunal based on those findings and that the primary findings supported those conclusions.

131.	We are satisfied that the Respondent has demonstrated that the Employment Tribunal made primary findings of fact for which there was sufficient evidence and made conclusions based on those findings which were supported by those findings.  

132.	We have considered the various points of criticism made as to individual findings.  In our opinion there was evidence to justify each of the findings and sufficient reasons were given so as to satisfy the requirements of Employment Tribunal rule 30(6) and Meek.  In particular we are satisfied there was ample evidence to support the Employment Tribunal’s finding at paragraph 56 that the Claimant displayed poor judgment and a lack of a sense of proportion.  We are satisfied with the finding at paragraph 58 that the meeting of 15 September 2008 represented a “watershed” in that the Respondent by now had the “flavour” of the Claimant.  

133.	We are satisfied there was evidence to support the Employment Tribunal’s decision at paragraph 63 that the Respondent had concerns about the Claimant’s ability to deliver.

134.	We also are satisfied that there was evidence to support the finding at paragraph 74 that Mr Allirajah was no doubt “furious”.  

135.	The Employment Tribunal was also entitled to conclude that the decision in principle to dismiss the Claimant had been made on or about 16 September and that the real reason for the dismissal of the Claimant was dissatisfaction with his judgment and a lack of trust in his judgment. 

136.	We deal in particular with issues specifically picked out by Mr Jones.  Insofar as Mr Allirajah’s reaction to the Claimant’s correspondence and conduct is concerned, as being “furious”, not only is this borne out by the contemporaneous documents but on the facts it was a likely reaction in the context of this being the second occasion in a week in which the Claimant had, in the Employment Tribunal’s words, acted “crassly”.  Further, despite his initial dressing down by reason of the earlier email of 14 September, the Claimant had again behaved “crassly”.  The Employment Tribunal found that the Claimant’s resignation, as we have said, was unnecessary and bound to cause great concern as it was uncalled for and made without consultation or notice.  Mr Allirajah would have thought so too in the light of his earlier criticism of the Claimant and the Employment Tribunal themselves record the Claimant saying that Mr Wilson told him that his letter “would not go down well” at the meeting.

137.	Mr Jones’ criticism of the use of the term “watershed” is misplaced.  The Employment Tribunal were clearly suggesting that the meeting constituted a defining moment when in the circumstances the Respondent had come to see that the Claimant was not a suitable member of the team.

138.	There is nothing that we have seen to suggest that there was unconscious discrimination on the part of the Respondent, nor a substitutionary mindset on the part of the Employment Tribunal

139.	We now turn to consider the points made in relation to protected disclosures.

140.	In relation to the email of 5 September we cannot fault the Employment Tribunal’s decision that this was not a protected disclosure because it was requesting rather than supplying information.  Further, the Claimant did not assert that there was serious malpractice because he did not know what the facts were (we note the Respondent says that he accepted this in cross‑examination and that he did not know how long Mattan had driven for or what distances).  In any event there was no detriment suffered by the Claimant because of the clear finding by the Employment Tribunal that he was not dismissed by reason of making a protected disclosure in this email; see Employment Tribunal paragraph 51.

141.	S.43B protects disclosure of information only, that is to say, facts, as made clear in Cavendish Munro Professional Risks Management v Geduld.  So far as the emails of 21 September are concerned, the Employment Tribunal accepted that these were qualifying and protected disclosures but the complaint was not the making of the disclosures but the manner of doing so, so this is a clear case, as found by the Employment Tribunal, of the principle illustrated in cases such as Hossack and Martin v Devonshires.  The real complaint by the Respondent was not the making of the complaint itself or the information imparted by the Claimant but the wider issues it raised about the Claimant’s judgment, ability to sort things out himself, his inappropriate bothering of the CEO over a weekend in the context of his earlier inappropriate conduct, including his inappropriate resignation as a director of the Italian and Spanish subsidiaries, leaving them so we believe without directors, and having done so without any consultation and prior warning.  So far as the letter of 24 September 2008 was concerned, simply because the Claimant made protected disclosures and that his dismissal followed, it did not follow that his dismissal was necessarily on the grounds of having made protected disclosures.  The Employment Tribunal was justified in concluding the contrary.  

142.	We now turn to the issue of detriment.  So far as the bank transfers were concerned, although this is of minor significance it is capable of being a detriment.  However, the obligation to make payment by bank transfer was not caught by the Continuation of Contract Order.  We agree with the Employment Tribunal that this was not an obligation continued by s.130; see Dowling which we have cited earlier.  We note that after HHJ Ansell reinstated payment by bank transfer we do not accept that he intended to lay down a principle that s.130 gives an Employment Tribunal jurisdiction to direct not only the time of the payment but also the manner of payment; if HHJ Ansell did intend that the Employment Tribunal was given that jurisdiction we respectfully disagree.  S.130 is clear and empowers an Employment Tribunal to require payment of salary “in the case of a payment for any such period falling wholly or partly after the making of the order on the normal pay day for that period”; it gives no power to the Employment Tribunal to determine the manner of payment.  This must be a matter for the Respondent, provided that the payment reaches the Claimant or his bank on or before the due date.  There is no challenge that the late payment was an actionable detriment.  The late payments will also be a breach of the CCO and as we have said on the findings of the Employment Tribunal at paragraph 86, these would amount to an actionable detriment.  The Respondent failed to explain the reason for late payments and had therefore failed to discharge the burden of showing that the late payments were not the result of a protected disclosure; there has been no cross‑appeal.

143.	We would observe that the fact that payment was made by cheque is irrelevant.  Although for the purposes of summary judgment payment by cheque may be regarded as equivalent to payment by cash it has nothing to do with the date when payment of salary is made.  When payment is made by cheque, payment is effected when the cheque is cleared.  The Respondent, for reasons we do not know, failed to ensure that payments were received by the Claimant by bank transfer or otherwise on or before the due date as provided by the CCO.

144.	We are also unable to agree with the Employment Tribunal in relation to payment of BUPA health insurance.  This was a benefit and this should have continued as a benefit even if not yet accrued under s.130(1)(a).  There is, however, nothing to suggest that the reason why the Claimant was not provided with BUPA cover was by reason of having done any protected act, rather the belief, so it would appear to us, that the Claimant was not entitled to the benefit of health insurance as he had not completed his three month qualifying period.  However, the failure to give him the benefit of BUPA would have been a breach of contract by reason of the CCO.  In relation to failure to reply to letters, in particular in relation to Jewish holidays, we see no reason to differ from the Employment Tribunal that this failure did not constitute a detriment.  In any event the failure was not by reason of his having made protected disclosures.

145.	So far as travel insurance is concerned, we accept the Claimant was entitled to travel insurance for the purposes of business travel only.  As he did not travel for the company after his dismissal, there can have been no detriment and the obligation to provide him with travel insurance would not continue under s.130.

146.	We see no reason to differ from the conclusion reached by the Employment Tribunal that the Claimant’s email of 5 September was responded to, although not in writing, and there was no post‑employment detriment in relation to the failure to respond to the letters of 21 and 24 September because these were not answered as the Claimant was no longer employed by the Respondent or concerned with the future of its business.

147.	Therefore, save in relation to the issue of BUPA benefit as being a breach of the CCO, the grounds of appeal all fail and the appeal is dismissed.

148.	It only remains for us to thank counsel for their helpful skeleton arguments and oral submissions.