Ms J Danvers (Counsel) For the v Respondent — 2021

The tribunal heard claims of unfair dismissal, detriments for protected disclosures, automatic unfair dismissal, harassment related to nationality, victimisation, and wrongful dismissal. It found that the Claimant was employed as Ecommerce Manager from 6 June 2016 and that relations with Mr Ezrine deteriorated in 2017 and 2018 against the background of website work and, later, a restructuring exercise.

On protected disclosures, the tribunal held that the Claimant may have raised GDPR concerns amounting to potential protected disclosures no earlier than March 2018 and likely from April or May 2018, but the evidence was vague, inconsistent, and not specific enough to prove earlier disclosures or when Mr Ezrine received them. The 3 July 2018 email and 31 July 2018 grievance may potentially have described legal non-compliance, but the tribunal found the Claimant had not shown the statutory reasonable-belief or public-interest requirements, so those documents were not proved to be protected disclosures.

The tribunal did find that the 3 July and 31 July 2018 correspondence amounted to protected acts because they alleged discriminatory comments by Mr Ezrine. It did not accept that the earlier conversations with Ms Lewis, or the post-Etch meeting conversation, were proven protected acts. On the harassment allegation, the tribunal accepted that Mr Ezrine said words to the effect of the British-people remark and that it referred negatively to British nationals, but it did not accept that it was shouted at or directed to the Claimant as alleged. Time was extended as just and equitable, but the harassment claim was dismissed.

The detriment complaints failed. The tribunal found that criticism of work, shouting and swearing, reduced direct liaison, exclusion from meetings, the alleged fabrication allegation, the redundancy notice, the handling of the appeal and grievance, the disciplinary process, the dismissal, and the appeal process were explained by management decisions, the restructure, or concerns arising from the DSAR investigation, not by any protected disclosure or protected act. Applying s.98(4) ERA 1996 and the Burchell test, it held that the principal reason for dismissal was conduct, that Mr Ezrine genuinely believed gross misconduct had occurred, that there were reasonable grounds for that belief, and that the investigation was reasonable.

Wrongful dismissal succeeded. Although the tribunal accepted that the respondents genuinely believed some of the allegations, it held that they had not proved on the balance of probabilities that the Claimant actually committed gross misconduct, particularly where the metadata for the alleged database download was not produced and there were concerns about the impartiality of the process. For remedy purposes the tribunal noted that the Claimant’s employment would have ended in any event on 13 October 2018, but no quantified award was fixed in this liability judgment.