Mr W G A Jasper v Moo Free Ltd: 1403106/2020

Case Number: 1403106/2020 EMPLOYMENT TRIBUNALS BETWEEN Claimant Mr W G A Jasper AND Respondent Moo Free Limited JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD REMOTELY AT ON 14 May 2021 BY VHS VIDEO PLATFORM EMPLOYMENT JUDGE Representation For the Claimant For the Respondent: N J Roper In person Mr J Heard of Counsel JUDGMENT The judgment of the tribunal is that: 1. This Tribunal does not have jurisdiction to entertain the claimant’s freestanding claim relating to an alleged breach of his human rights, and no such claim may be pursued; and 2. The claimant’s claim for discrimination on the grounds of his alleged philosophical belief is struck out because it has no reasonable prospect of success; and 3. The claimant’s claims for detriment and/or dismissal arising from protected public interest disclosures are also struck out because they have no reasonable prospect of success. RESERVED REASONS 1. This is the judgment following a preliminary hearing to determine whether the claimant’s remaining claims should be struck out on the grounds that they have no reasonable prospect of success, or whether the claimant should be ordered to pay a deposit as a condition of continuing with the claim(s) because they have little reasonable prospect of success. 1 Case Number: 1403106/2020 2. This has been a remote hearing which has been consented to by the parties. The form of remote hearing was by VHS Video Platform. A face to face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing. The documents that I was referred to are in a bundle of 125 pages, the contents of which I have recorded. The order made is described at the end of these reasons. 3. In this case the claimant Mr William Jasper originally brought a number of claims, but following a case management preliminary hearing and subsequent case management order of Employment Judge Goraj dated 4 February 2021 (“the CMO”) the claimant’s three remaining claims are these: (i) a freestanding claim in respect of an alleged breach of his human rights; (ii) a claim for direct discrimination on the grounds of his philosophical belief; and (iii) detriment and/or unfair dismissal said to have arisen from having made protected public interest disclosures. The claims are all denied by the respondent. 4. I have considered the grounds of application and the response submitted by the parties. I have considered the oral and documentary evidence which it is proposed will be adduced at the main hearing. I have also listened to the factual and legal submissions made by and on behalf of the respective parties. I have not heard any oral evidence, and I do not make findings of fact as such, but my conclusions based on my consideration of the above are as follows. 5. The respondent is a family owned company specialising in the manufacture of dairy free, gluten free, soya free and vegan chocolates. It has a total of 45 employees. The claimant was employed as a multiskilled maintenance engineer from 2 July 2018 until his dismissal with immediate effect on 16 April 2020. 6. During February 2020 the respondent reviewed its contracts of employment and wished to standardise these across its organisation. The respondent issued all of its employees with a proposed new contract of employment on or about 28 February 2020. This included a provision which purported to allow the respondent to vary the terms of the new contract, and the claimant objected to this. He refused to sign the proposed new contract of employment and remained on his existing terms. 7. Meanwhile the Covid-19 pandemic began to have effect and the respondent took advantage of the Government’s furlough scheme. On 24 March 2020 the claimant signed an Agreement for Furlough Leave whereby he received 80% of his salary on the basis that he would not be required to come to work, although the agreement included a provision which entitled the respondent to cancel the furlough leave and require the claimant to return. It also included a provision under Clause 4 suggesting that the respondent would be entitled to place the claimant on short term work or lay off without pay (except for statutory guarantee payments) in the event of insufficient work then being available. It seems that the claimant also objected to this provision (Clause 4), although he did sign that agreement 2 Case Number: 1403106/2020 8. The respondent then had cause to recall some of its staff from furlough leave because of a new product, and this involved the claimant because of his skills and experience on the production process. On 26 March 2020 the respondent asked the claimant to return to work on 6, 7 and 8 April 2020. The claimant accepts that this request was made because of his expertise in the production process, but he declined to do so. On 6 April 2020 the respondent’s CEO Mrs Andrea Jessop emailed the claimant to say that she had been informed by Mr Simon March, the Engineering Manager, that he the claimant was “not happy with the new contracts” and suggesting that the matter was not urgent and that his concerns could be discussed when he returned to work. 9. The claimant then exercised a formal grievance on 8 April 2020 in which he objected to the new contract of employment and in particular the right of the respondent to vary its terms; and also objecting to clause 4 of the Agreement for Furlough Leave. His grievance was acknowledged, and he was informed that the meeting would be arranged as soon as people were able to return to work. The respondent also appointed Ms Bidgood, an independent HR consultant, to investigate the grievance and invited the claimant to direct any queries to her. The claimant then wrote to Ms Bidgood on 14 April 2020 objecting to the proposed changes in his terms and conditions of employment; suggesting that the respondent had failed to be open and honest and that it had failed to draw attention to the proposed changes; objecting to clause 4 of the Agreement for Furlough Leave; and objecting to the timescale for imposition of the new contract and a general lack of consultation. 10. There was an exchange of emails between the claimant and Ms Bidgood on 15 April 2020. At 17:45 the claimant asked her to confirm that she had a copy of his signed contract of employment and original job offer. She responded at 18:19 to the effect that she would login to the respondent’s HR files in the morning and send it over. The claimant then responded at 18:35 to this effect: “WTF really you sent an email on 15 April 2020 at 11:50 am stating that YOU don’t have access to the Moo Free email address. ARE YOU WASTING MY TIME?” 11. Immediately afterwards Ms Bidgood spoke to Mrs Jessop and complained about the claimant’s conduct. Mrs Jessop formed the view that the claimant’s actions were unacceptable and amounted to bullying and harassment of Ms Bidgood. She decided to dismiss the claimant with immediate effect on 16 April 2020, and she paid him one week’s pay in lieu of notice. The letter confirmed that the reason for the dismissal was that the claimant’s language and comments towards Ms Bidgood were completely unacceptable, and that the respondent did not tolerate bullying or harassment of any kind. 12. The claimant was offered the right of appeal and did so by letter dated 17 April 2020. An independent HR adviser namely Ms Blackwood was appointed to deal with his appeal, and by letter dated 6 May 2020 she decided to uphold the original decision to dismiss, and rejected the appeal. 3 Case Number: 1403106/2020 13. Following the earlier CMO the claimant was ordered to provide further information of his alleged protected public interest disclosures, and having provided that information, the claimant confirmed today at this hearing that he relies on the following disclosures. The matters of which he complained fall into two categories: first, he challenged the imposition of the new contract and the proposed change of conditions, which was not by mutual agreement, which included clause 4 of the Agreement for Furlough Leave; and secondly, he challenged the requirement for him to return to work on 6, 7 and 8 April 2020 because of the operation of the furlough scheme and his absence on that scheme. 14. The two disclosures relied upon under the first category (challenging the new contract) are these: 15. Disclosure 1: a text to Simon March on 24 March 2020 at 6:44 pm stating: “Hello please inform all that I am still working to my original and jointly signed contract. Regards. Alan”. The claimant makes the point that the email from Mrs Jessop on 6 April 2020 referred to above is consistent with that disclosure, because she confirms that Mr March told her he was not happy with the new proposed contract. 16. Disclosure 2: an email to Simon March on 26 March 2020 at 5:55 pm stating: “Should I come back on 6 April as verbally requested, how does this effect this condition? Please give me your written response. Kind regards. Alan.” 17. The four disclosures relied upon under the second category (challenging the requirement for him to return to work on 6, 7 and 8 April 2020) are these: 18. Disclosure 3: a text message to Mr Simon March on 26 March 2020: 3:22 pm stating: “Trust just read the letter that was just placed under my nose and said to sign THERE is NO mention of the 20% top up OR the Duration of payment. All that I can see is the government basic payment smells a bit bad to me please tell me I’m wrong? Big dog.” 19. Disclosure 4: a text message to another manager Darren Rivers on 26 March 2020 at 3:22 pm stating: “Hello Darren, Simon has said that I need to return to work on 6 April is this correct? Does this mean that my furlough leave is over? Please urgently advise as I will not breach the terms listed in the AGREEMENT FOR FURLOUGH LEAVE without written confirmation from MOOFREE.” 20. Disclosure 5: a post which the claimant put up on the respondent’s Kudos platform (available to all employees) in which he said of Mr...