Mr M Cleary v Rail for London (Infrastructure) Ltd: 3200519/2020
| Jurisdiction | England & Wales |
| Judgment Date | 15 December 2021 |
| Citation | 3200519/2020 |
| Date | 15 December 2021 |
| Published date | 06 January 2022 |
| Court | Employment Tribunal |
| Subject Matter | Flexible Working |
Case Number: 3200519/2020
1
EMPLOYMENT TRIBUNALS
Claimant: Mr Michael Cleary
Respondent: Rail for London (Infrastructure) Limited
Heard at: East London Hearing Centre
Before: Employment Judge John Crosfill
Members: Ms Julie Clark
Mr Peter Lush
On: 25, 26, 27 & 28 May 2021
Representation
Claimant: In person
Respondent: Iris Ferber of Counsel instructed by Eversheds Sutherland
JUDGMENT
1. The Claimant’s claim for unfair dismissal relying on section 103A
and brought under Part X of the Employment Rights Act 1996 is not
well founded and is dismissed.
2. The Claimant’s claims that the Respondent unlawfully subjected
him to detriments on the ground that he had made protected
disclosures contrary to Section 47B (and brought under Section 48)
of the Employment Rights Act 1996 are dismissed.
3. The Claimant’s claim for unfair dismissal relying on section 100 and
brought under Part X of the Employment Rights Act 1996 is not well
founded and is dismissed.
4. The Claimant’s claims that the Respondent unlawfully subjected
him to detriments on the ground that he had acted on health and
safety grounds falling within Section 44 (and brought under Section
Case Number: 3200519/2020
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48) of the Employment Rights Act 1996 are dismissed.
REASONS
Introduction
1. The Claimant is a skilled electrician with experience of working with high
voltage equipment. In late 2018 he applied for, and was appointed to, a
role with the Respondent as a Principle Maintenance Technician
working on the Crossrail Rail Network. It was intended that he, and
others, would be responsible for the maintenance of the electrical
systems once the Crossrail project was handed over. The Claimant
accepted terms and conditions which required him to work a shift pattern
including anti-social hours. In return for this he was to be paid an
antisocial hours supplement equivalent to 30% of his basic salary.
2. There have been significant delays in the construction of the Crossrail
project. As a consequence, the staff engaged to do maintenance work
could not immediately undertake their full range of duties. Initially the
Claimant, and others, were not required to work any antisocial hours but
nevertheless continued to receive the 30% salary supplement.
3. It is the Claimant’s case that whilst awaiting the handover of the project
from the contractor he was required to carry out activities in connection
with preventing or reducing risks to health and safety at work. He says
that on 7 occasions between 12 June and 8 August 2019 he raised
issues connected to health and safety which amounted to protected
disclosures for the purposes of Section 43B of the Employment Rights
Act 1996.
4. The Claimant says that he was subjected to 9 detriments on the grounds
that he had made protected disclosures and/or because of a health and
safety reason falling within Section 44 of the Employment Rights Act
1996.
5. The Respondent’s case is that the Claimant resisted its reasonable and
lawful instructions requiring him to commence working his contracted
hours of work and/or at its Plumstead Depot. It says that the Claimant’s
refusal, and the manner of his refusal, ultimately led to his dismissal. It
says that after the Claimant failed to attend several disciplinary hearings
a decision to dismiss him was taken in his absence. A letter was sent to
the Claimant on 6 November 2019 informing him that his employment
had been summarily terminated on 25 October 2019.
6. The Claimant says that the reason (or principal reason) for his dismissal
was that he had made protected disclosures or alternatively that the
reason fell within Section 44 of the Employment Rights Act 1996. After
a period of early conciliation, the Claimant presented his ET1 to the
Employment Tribunal on 11 February 2020.
Case Number: 3200519/2020
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The procedural history and the hearing
7. The Claimant indicated in section 8.1 of his ET1 that he was bringing a
claim of unfair dismissal. In an attachment to the ET1 form the Claimant
indicated that his claims included claims that he had been subjected to
a detriment for raising health and safety concerns.
8. The Tribunal sent the Claimant a letter on 21 February 2020 requiring
him to explain the basis upon which he was entitled to claim unfair
dismissal in the light of the fact that it was apparent from his ET1 that
he did not have 2 year’s continuous service for the purposes of Section
108 of the Employment Rights Act 1996. The Claimant responded on
28 February 2020 explaining that he was contending that he had been
‘automatically’ unfairly dismissed for making protected disclosures and
for raising health and safety concerns.
9. A telephone preliminary hearing was listed before REJ Taylor on 28
June 2020. At that hearing the Claimant contended that his claim form
should be treated as including claims that the Respondent had acted
contrary to Section 80 of the Employment Rights Act in refusing a
flexible working request. REJ Taylor directed that there was a further
preliminary hearing to decide the scope of the Claimant’s claims and
whether the Claimant needed or should be given permission to amend
his ET1 to include all the claims he wished to advance. She set out in
her case management summary a provisional list of issues for the
claims brought under Section 47B of the Employment Rights Act 1996.
10. A further preliminary hearing took place on 8 September 2020 before EJ
Burgher. He considered that it was reasonably clear that the Claimant
had brought claims under Section 44 of the Employment Rights Act
1996. EJ Burgher identified that the Claimant was relying on sub
sections 44(1)(a), 44(1)(c) and 44(1)(d) as affording him protection. EJ
Burgher stated in his case management order that the detriments relied
upon by the Claimant in his Section 44 claims were identified as the
same as for the claim relying on Section 47B. EJ Burgher decided that
the Claimant’s ET1 did not include any claim brought under Section 80
of the Employment Rights Act 1996. The Claimant made an application
to amend his claim to include such claims, but that application was
refused.
11. EJ Burgher ordered the parties to prepare a composite list of issues
encapsulating the decisions of REJ Taylor and his own decisions. A list
of issues was drawn up by the Respondent and sent to the Claimant on
5 October 2020.
12. A further Preliminary Hearing took place on 8 February 2021. It seems
that the principle purpose of that hearing was to deal with disputes about
the disclosure of documents. Both parties had made requests for
disclosure each complaining that the disclosure given by the other party
was inadequate. That hearing was conducted by EJ Goodridge. He
made some orders in respect of disclosure. He noted that the
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