Mr J Susskind, Counsel For the v Respondent — 2021

Mr Mele had worked for AM Plc since 1994 and was Director of International Operations. The tribunal accepted that from April and May 2018 he raised concerns that Mr Mortimer was claiming company expenses for personal items, including rent for Ms Stokes' Birmingham flat, and that he later disclosed those concerns to Mrs Mortimer with documentary support. It also accepted that he told Mrs Mortimer about the Lottie Warren incident in January 2019 and repeated the expenses and harassment allegations in his grievance of 25 March 2019 and later emails. Those disclosures were held to be protected disclosures, and the Warren and grievance allegations were also protected acts under the Equality Act.

Applying the Fecitt and Shamoon approach, the tribunal found that Mr Mortimer did not know that Mr Mele had made protected disclosures until about 10 April 2019, and did not know about the protected acts almost immediately after the grievance was submitted. Alleged detriments occurring before that date were dismissed because they could not have been caused by protected disclosures or protected acts, and because the tribunal found they mainly reflected a long-running dispute about the profitability and future of the international business. It rejected a number of allegations including the DSAR complaints, the Navision access complaint, and the contention that Mrs Mortimer's non-participation in the grievance and redundancy process was retaliatory.

The tribunal upheld a limited group of July and August 2019 detriments. It found that on 10 July 2019 Mr Mortimer told Ms Goodall not to support the claimant in the grievance investigation, not to attend meetings with Mr Confrey, and to support Mr Mortimer in any court proceedings; that AM Plc failed to put proper measures in place to prevent that intimidation; that on 9 and 12 August 2019 Mr Mele was not allowed back into the building or to collect his belongings in person; and that around 9 August 2019 Mr Mortimer let it be known that staff should not contact him or give him information. Those matters were held to be protected disclosure detriments and victimisation, and the tribunal found they formed a continuing course of conduct in time.

On dismissal, the tribunal held that Mrs Barnard and Robin Johnson made the decision and that it had not been predetermined by Mr Mortimer. It accepted that there was a redundancy situation because the International Division no longer required the same level of senior staffing, and that the claimant's work was absorbed by existing staff. However, applying the redundancy authorities including Burrell, Murray and Williams v Compair Maxam, the tribunal found the dismissal unfair under s.98(4) ERA 1996 because only the claimant was placed in the pool, no proper analysis of the pool or selection criteria was carried out, and the alternative Paris role was withdrawn without proper consultation. The automatic unfair dismissal claims under s.103A and s.105, and the victimisation dismissal claim, were dismissed. The tribunal did not determine remedy at this hearing and listed a remedy hearing for 28 and 29 April 2021.