Mr R Domaradzki v Fire Integrity Ltd (England and Wales : Public Interest Disclosure) -[2022] UKET 3213083/2020- (12 October 2022)

Key Facts

Issues

• The Tribunal needed to determine whether the claimant was dismissed by the respondent on 16 July 2020 or whether he resigned. The claimant alleged he was dismissed by a text message from Mr Mullaney on 19 July 2020, while the respondent maintained the claimant had resigned on 16 July 2020. The Tribunal had to examine communications, the claimant's conduct, and the respondent's responses to establish the true nature of the termination of employment.
• The Tribunal had to determine whether the claimant was provided with a statement of employment particulars in accordance with section 1 of the Employment Rights Act 1996. The claimant alleged he was not provided with a contract from 2016, while the respondent stated they provided a draft contract in April 2018 which the claimant refused to sign.
• The Tribunal needed to consider whether the claimant was automatically unfairly dismissed under section 103A of the Employment Rights Act 1996. The claimant alleged dismissal was because he made protected disclosures, which would render the dismissal automatically unfair regardless of fairness.
• The Tribunal needed to assess claims of direct race discrimination under section 13 of the Equality Act 2010. The claimant alleged he was treated less favourably than colleagues of British and/or Irish nationality. The Tribunal had to determine if the claimant proved facts from which discrimination could be inferred, and whether the claims were within the time limit for bringing proceedings.
• The Tribunal needed to consider whether the claimant was constructively dismissed pursuant to section 95(1)(c) ERA 1996. This required determining whether the respondent's conduct on 16 July 2020 was calculated or likely to destroy or undermine the employment relationship, and whether the claimant was entitled to terminate the contract without notice due to the employer's conduct.
• The Tribunal had to determine whether the claimant suffered detriment under section 47B(1) of the Employment Rights Act 1996 as a consequence of making protected disclosures. This required assessing whether the claimant was subjected to detrimental treatment and whether it was done on the ground that he had made protected disclosures.
• The Tribunal had to determine whether the claimant made protected disclosures under section 43B of the Employment Rights Act 1996. The claimant alleged he made protected disclosures regarding potential legal obligations and health and safety concerns related to fire protection work. The Tribunal needed to assess whether the claimant genuinely and reasonably believed the disclosures were in the public interest and whether they tended to show wrongdoing in specified areas.

Holdings

Legal Principles

• The Tribunal required the claimant to prove facts on the balance of probabilities. This standard applies to establishing discrimination, protected disclosures, and the reason for dismissal. The claimant failed to meet this standard regarding race discrimination and protected disclosures, as no facts were proved from which a conclusion of unlawful treatment could be drawn.
• The Tribunal applied the burden of proof principles under section 13 of the Equality Act 2010. The claimant bears the burden of proving facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent committed an unlawful act of discrimination. Once the claimant proves such facts, the burden shifts to the respondent to show that the treatment was not on the grounds of race.
• The Tribunal determined that a WhatsApp message from the director expressing a vision for the business was not a binding contract or offer of partnership. It lacked the necessary specificity and acceptance to constitute an offer and acceptance of terms, functioning instead as a statement of hope and vision for the future of the business.
• For a detriment claim following a protected disclosure, the employer must prove on the balance of probabilities that the protected act did not materially influence the treatment of the worker. Causation is established unless the employer can show that the protected disclosure played no part whatsoever in the employer's acts or omissions.

Precedent Name

• Western Union Payment Services UK Ltd v Anastasiou
• Western Excavating (ECC) Ltd v Sharp
• Timis v Osipov
• Salisbury NHS Foundation Trust v Wyeth
• Fincham v HM Prison Service
• Hendricks v Metropolitan Comr
• Igen v Wong
• Madarassay v Nomura International Plc

Cited Statute

• Limitation Act 1980
• Employment Rights Act 1996
• Equality Act 2010
• Employment Act 2002

Judge Name

Passage Text

• The complaints listed at 7.1.1, 7.1.2, 7.1.4, 7.1.6 and 7.1.7 of the list of issues were brought to the Tribunal outside of the time limit set in section 123 of the Equality Act 2010 and the Tribunal has no jurisdiction to hear them. The complaint of race discrimination at items 7.1.3 and 7.1.5 of the list of issues fails and is dismissed. The claimant brought a complaint of direct discrimination on the grounds of race. The claimant alleged that the respondent treated him less favourably than colleagues who were of British and/or Irish nationality/citizenship. The claimant is of Polish descent and has Polish nationality.
• It is therefore this Tribunal's judgment that the claimant resigned from the respondent's employment on 16 July in an email to Mr Mullaney, Mr Kelly and Mr Ralley in which he stated that he quit. There was no backtracking from that position in any subsequent communication from the claimant. Instead he was defiant. He asked the respondent on different occasions – in a text to Mr Kelly - to send men to collect company items, in a WhatsApp to Mr Mullaney – how much notice the respondent required, and whether the respondent wanted the desk to be taken dismantled or in one piece. On 22 July, in the meeting with Mr Kelly, the claimant did not query his situation but instead took the opportunity to negotiate an exit package. It is therefore this Tribunal's judgment that the claimant resigned on 16 July. He never retracted that resignation. He never did the Kier job. He stood firm in his decision to leave the respondent rather than do the job or work for Mr Ralley. The claimant resigned and was not dismissed.
• Taking all the above into consideration. it is this Tribunal's judgment that the claimant did not make protected disclosures. The claimant is entitled as a professional employee to raise concerns with his employer but raising concerns is not the same as making protected disclosures, unless it complies with the legal requirements set out above. In these emails and message the claimant was raising concerns about the work that he had been asked to do but it was not clear to the Tribunal whether he was raising these concerns because he was unhappy about what he saw as being passed over for promotion or because he did not want to do the work or because he really believed that on this occasion, this ad hoc piece of work had to be certified through FIRAS despite the client and his employer telling him that this was not required. Even so, in this Tribunal's judgment, in none of the 4 messages referred to as item 2.1 in this list of issues, was the claimant providing information that tended to show that a criminal offence had been committed that the respondent was failing or likely to fail to comply with a legal obligation to which it was subject or that the health and safety of any individual was being or was likely to be endangered. The information that the claimant provided in these messages did not tend to show that any of the above information had been or was likely to be concealed.