Mrs T Dalloway and Mrs S Dean v Sandwell Crossroad Care Attendant Scheme Ltd: 1300180/2024 and 1302788/2024

EMPLOYMENT TRIBUNALS

Case No 1300180/2024, 1302788/2024

Between

Mrs T Dalloway and Mrs S DeanClaimant

Sandwell Crossroad Care Attendant Scheme LtdRespondent

Before

Employment Judge Bansal

Mr A Rozycki (instructed by Counsel) for respondent

Date 30 September 2025

JUDGMENT

The unanimous decision of the Tribunal is that the claimants complaints of:(i) Automatic unfair dismissal contrary to s103A of the Employment Rights 1996 is not well founded and is dismissed.

(ii) Ordinary unfair dismissal contrary to s94 & s98 of the Employment Rights Act 1996 is not well founded and is dismissed. Approved By

REASONS

[1]Mrs Tracey Dalloway commenced employment with the respondent in October 2019 as a Young Carer Adviser. She was summarily dismissed for gross misconduct effective from 20 November 2023.

[2]Mrs Dalloway commenced early conciliation on 21 November 2023 which ended on 15 December 2023.

[3]By a Claim Form presented on 13 January 2024, Mrs Dalloway issued complaints for ordinary unfair dismissal and automatic unfair dismissal for making a protected disclosure. Mrs Stacey Dean

[4]Mrs Stacey Dean commenced employment with the respondent sometime in 2005 in the role of Care Assistant. During her employment she undertook other roles of Administrator and Payroll Manager. At the date of her summary dismissal on 20 November 2023, she held the role of Young Carers Advisor. Case No: 1300180/2024 1302788/2024 2

[5]Mrs. Dean commenced early conciliation on 13 January 2024, which ended on 16 January 2024.

[6]By a Claim Form presented on 15 February 2024, Mrs Dean made the same complaints as Mrs Dalloway for ordinary unfair dismissal and automatic unfiar dismissal for making a protected disclosure. The Respondent

[7]The respondent is a non-profit making organisation. It’s legal status is a Limited Company by Guarantee.

[8]The respondent provides regulated and unregulated care services across Sandwell, Dudley and Birmingham. Respondent’s Response

[9]The respondent contested the claims maintaining both claimants were fairly dismissed for gross misconduct for a breach of the implied term of fidelity and an express term of their contract of employment not to engage in any other business without the approval of the respondent. Further the respondent argued the disclosure relied upon was not a qualifying disclosure at law, and/or if it was, this was not the reason for their dismissal. Consolidation of claims

[10]By letter dated 21 February 2024, the claimant’s representative made an application for both claims to be heard together. Accordingly, an Order was made by the Tribunal dated 15 April 2024. Preliminary Hearings

[11]There were two preliminary hearings for case management. The first hearing was before EJ Hussian held on 25 September 2024, at which the complaints were identified and a draft List of Issues was prepared for the parties to finalise. This required the claimants to fully particuralise the protected disclosure relied upon (p91-101) The second hearing was held before EJ Harding on 17 April 2025, at which the Judge corrected the complaints pursued, and also reviewed the draft list of issues. This was in consequence of the claimants attempt to expand the number of disclosures relied upon. EJ Harding in the case summary of this hearing expressly recorded that following discussions Miss Pemberton acting for the claimants confirmed the only disclosure being relied upon were as recorded by EJ Hussain at the previous hearing. EJ Harding directed the parties to produce a final agreed List of Issues. (p104-110)The final List of Issues was prepared by the respondent’s representative and submitted to the Tribunal and copied to Miss Pemberton. (p127-130)

Hearing

[12]For this hearing the Tribunal was provided with two hearing bundles. The first Case No: 1300180/2024 1302788/2024 3 was the main hearing bundle of 511 pages. The second bundle was a Supplementary Bundle prepared by the respondent containing 109 pages. In discussion about the bundles, Miss Pemberton stated the bundles were not agreed. She explained the respondent had not adhered to the directions given at the case management hearings in that the respondent did not disclose a number a key documents; had omitted to include documents previously disclosed in the disclosure process and failed to exclude documents as directed by EJ Harding. Miss Pemberton also pointed out that her copy of the main bundle ended at page 466, whereas the bundle before the Tribunal contained 511 pages. Following discussions it transpired Miss Pemberton’s copy bundle did not contain pages 467-511. These missing pages were handed to Miss Pemberton by the Judge from a spare hard copy of the bundle.

[13]Miss Pemberton also explained she had not received a copy of the Supplementary Bundle. A hard copy of this bundle was also handed to Miss Pemberton at the hearing. She was directed to consider this bundle with the claimants during the adjournment and was at liberty to raise any issue.

List of Issues

[14]The Judge considered the draft List of Issues as prepared by the respondent in accordance with EJ Harding’s Order. Following discussion, Mr Rozyzcki confirmed his agreement. Miss Pemberton sought to disagree without being clear what her issue was. The Judge asked Miss Pemberton to review the draft List. There was no correspondence from Miss Pemberton to support any objection or amendment to the draft. After a review, Miss Pemberton confirmed her agreement to the draft list without any amendment. Accordingly the draft list was confirmed as the final and definitive agreed List of Issues to be determined by the Tribunal. This agreed List of Issues is annexed to this judgment. Preliminary point

[15]Mr Rozycki raised one preliminary point about Mrs Dean’s disclosure. Her pleaded case is that she made a disclosure on 15 September 2024 to LADO. He contended that the respondent would argue that this disclosure would not qualify for protection as it was not made to the responsible person. Witness evidence

[16]The Tribunal was provided with witness statements from both claimants and for the respondent from, Mrs Christine Christie (CEO & Appeal Officer) and Ms Derri Moran (External HR Advisor & Dismissing Manager). Mr Royzinski informed the Tribunal the respondent would not be calling Ms Moran, as the respondent had been unable to make contact her with and they were unaware of her whereabouts. Mr Rozycki invited the Tribunal to take Ms Moran’s statement into account.

[17]Following the preliminary issues considered at the start of the hearing, the remainder of the first day was adjourned for Tribunal reading time.

[18]The parties evidence was heard on days 2 and 3. All witnesses called gave Case No: 1300180/2024 1302788/2024 4 live evidence and were cross examined. The Tribunal also asked questions of the witnesses for clarification.

[19]On day 4, the Tribunal heard the parties submissions. On the morning of the hearing, Miss Pemberton emailed the Tribunal to confirm she was unable to attend due to her health. She presented written submissions which were read by the Tribunal. In the absence of Miss Pemberton, the Tribunal gave the claimants an opportunity to address the Tribunal. Both claimants made their representations. Mr Rozycki presented written submissions which were expanded orally. The Tribunal adjourned the hearing and met in Chambers for their deliberations on days 5 & 6. The Tribunal gave oral judgment on day 7.

Findings of fact

[20]It was not necessary and neither was it proportionate to determine each and every fact in dispute. Hence, only relevant findings of fact were made relevant to the agreed legal issues and those necessary for the Tribunal to determine. Any reference to a page number is to the relevant page numbers in the main bundle. The Respondent

[21]The respondent is a non-profit making organisation. It’s legal status is that of a Limited Company by Guarantee. According to the information on Companies House it has 6 Directors, of which Mrs Christie is one. It also has a Board of Trustees.

[22]The respondent provides regulated and unregulated care services across Sandwell, Dudley and Birmingham. It is regulated by the Care Quality Commission. The core services are delivered in Sandwell. At the time of the claimants employment the respondent held the Dudley All Age Carers Contract delivering to Young Carers, Young Adult Carers and other Adult Carers. The respondents services are primarily publicly funded by Local Authorities and other health related organisations. As of November 2023 the respondent employed some 100 employees. Claimants employment

[23]The claimants role as Young Carers entailed caring for young carers.

[24]The claimants employment was subject to the terms of their Contracts Of Employment. These Contracts were the same. The relevant clauses for this claim were the following;(i) Clause 23 – Changes to Terms and Conditions of Employment “ The Respondent reserves the right to make reasonable changes to any of the terms of your employment. You will be notified in writing two weeks before the change has been made.”

(ii) Clause 30 – Outside Interests “Unless you have obtained prior written consent from a Director, you shall not during your employment directly or indirectly engage in or Case No: 1300180/2024 1302788/2024 5 acquire an interest in another business such consent may be refused where it is considered there is a conflict of interest which, may adversely affect your ability to properly discharge your duties to the Respondent (or any Group company)”

[25]The claimants role was funded by the Dudley Metropolitan Council. The initial contract term was from January 2020 to March 2023. This continued on a rolling basis. Mrs Christine confirmed that from March 2023 the contract term was extended into April 2024, following which the contract was the subject of renewal and retender. The respondent was not successful in the tendering process. Employees on this contract were subject of a TUPE transfer. The claimants Line Manager at the relevant time, (i.e July to November 2023) was Jennifer Douglas. Variation to Contract Terms

[26]On 7 August 2023 the respondent’s HR Manager Sherine Robinson issued an email confirming an update to the employees terms of employment. This update was in the form of an addendum. There were two new clauses, namely (i) a Non-Competition and Restraint of Trade clause and a revised Copyright & Intellectual Property Rights.

[27]The Non-Competition and Restraint of Trade read, “ You will not without the Company’s prior written approval whether by yourself or on behalf of any other person firm company or organisation whether directly or indirectly during your employment and for the period of six months following the termination of it; (i) in competition with the Company solicit or seek to obtain orders for restricted products from any restricted customer or prospective customer. (p161-164)

[28]The email stated if there were any queries they should contact Sheraine Robinson. Further it stated, “ If you do have any queries please can you respond by Monday 7th August 3:00 pm. If I receive nothing back I will take it that you are happy.” The email confirmed this was sent to Mrs Dalloway but not Mrs Dean. In evidence, Mrs Christie understood this email was sent to all employees and that she was not aware of any other employee having raised an objection or made any query.

[29]Mrs Dalloway confirmed in evidence that she had a conversation with Sheraine Robinson on 7 August 2023 when attending a training course and told her that she did not understand the clauses because of the language used which was too legalistic. She explained, for example, she did not understand what was meant by Restricted Products and Restricted Customer. Mrs Dalloway accepted she did not follow this up in writing as she did not consider it was necessary as she had already informed Sheraine Robinson who told her she will discuss this with her later. The respondent took the view this amendment was accepted by Mrs Dalloway.

[30]The respondent provided no written evidence that this amendment was also sent to Mrs Dean. Mrs Dean raised an issue about this in her letter of appeal dated 27 November 2023, which is referred to later in this judgment. Case No: 1300180/2024 1302788/2024 6 Safeguarding concern – 25 July 2023

[31]As of July 2023 Mr Lewis Wastell provided support as a volunteer to the respondent. According to Mrs Dalloway, she had complained about Lewis Wastell to her previous Line Manager Mr Douglas Evans and then to her current Manager Jenny Douglas. Mrs Dalloway did not explain what were the specific concerns raised except to say that these were safeguarding concerns about his behaviour which she considered to be inappropriate. She claimed nothing had been done about her previous concerns.

[32]On 25 July 2023 Mrs Dalloway recorded in the Charity Log Book, a concern which she has claimed is a protected disclosure at law. (p79) She wrote, “Isabelle attended our summer activity. She informed me that at the last youth club at the source after I had spoken to another yc who Isabelle was supporting as she was upset about family issues. Lewis came over and told them they should listen to the parent as it was their needs that needed to be met. Then he went on to say that he had had sex with a woman 3 years ago and it was a bad situation so he hasn’t had sex again in 3 years. Isabelle was very confused as to why he had made that comment and states she feels uneasy around him. I reported this to Jenny and told Izzys mum what had been said.” (p79)

[33]Mrs Dalloway explained the Charity Log is a system where each young carer has an individual file in which the Care Advisors log details concerning the health and welfare of the young carer.

[34]Mrs Dalloway in her witness statement stated she and Mrs Dean were concerned about safeguarding the young carers who were with Lewis Wastell. Alton Towers Trip – 21 August 2023 (First Disciplinary)

[35]On 21 August 2023 the respondent arranged a trip to Alton Towers with carers and their families. The coach was booked for 72 passengers. 60 of the 72 tickets were donated by Magic Merlin for young carers, and additional tickets were purchased from other funds to enable Young Adult Carers to attend. Mrs Dalloway was heavily involved in organising this trip. Both claimants went on this trip with another work colleague Sam Robak and Lewis Wastell.

[36]Both claimants in their witness statement gave detailed account of what happened on that day. According to Mrs Dalloway, Sam Robak told Lewis Wastell that Mrs Dalloway had made a safeguarding complaint about him.

[37]Following this trip, a complaint was made about Mrs Dalloway and Mrs Dean. The respondent did not produce any documentary evidence of this complaint or confirm which person made the complaint. Mrs Dalloway and Mrs Dean believed Lewis Wastell was the person who complained about them. They believed this was because they were concerned about his being left alone with the young children and that Sam Robak told him that they had Case No: 1300180/2024 1302788/2024 7 raised a safeguarding concern about him.

[38]An investigation was undertaken by Mrs Christie into the events on the trip. The claimant and 3 other persons (A,B & C) were interviewed. Ms Derri Moran was the notetaker at these interviews. The interview notes of the 3 other persons did not disclose their names as these were anonymised. The claimants concluded the persons interviewed must have been Lewis Wastell and Sam Robak.

[39]From reading the parts of the Investigation Report disclosed into the events on that trip, it appears the issues between the claimants and Lewis Wastell became more contentious and the ill-feeling towards each other became more heightened after this trip.(p94-101)

[40]Following this investigation, the claimants were suspended from work pending further investigation. Mrs Dalloway

[41]Mrs Dalloway was charged with allegations of negligence, breach of trust and confidence and poor planning and organisation in relation to the Alton Towers trip. These allegations were considered to be gross misconduct.

[42]She attended a disciplinary hearing on 3 October 2023 conducted by Mrs Sue Turton, Senior Manager. The outcome of this hearing was that the allegations of negligence, and breach and trust of confidence were upheld but the allegation of poor planning was not upheld. The sanction given was that of a Final Written Warning to remain on her file for a period of 12 months. Mrs Dalloway did not exercise her right of appeal.(p228-230)

[43]On 13 October 2023 Mrs Dalloway submitted a Fit Note up to 10 November 2023. The reason for her absence was stress at work.(p234) She remained off sick until her dismissal. Mrs Stacey Dean

[44]Mrs Dean was charged with allegations of negligence and breach of trust and confidence. She attended her disciplinary hearing on 26 September 2023, conducted by Mrs Sue Turton. By letter dated 6 October 2023, Mrs Dean was given a Final Written Warning to remain live on her file for a period of 12 months. (p320-321) Mrs Dean did not exercise her right of appeal. (p320- 321)

[45]On 4 October 2023, Mrs Dean submitted a Fit Note for 7 days. Her period of absence was from 4 October 2023 to 10 October 2023 and the reason stated was stress. (p319) On 9 October 2023, Mrs Dean submitted a further Fit Note for a period of 4 weeks, ending on 5 November 2023. The reason for her absence was stress at work. Following this, she submitted a further Fit Note from 2 November 2023 to 29 November 2023. The reason for her sickness absence was chest infection. (p333) Grievance – Mrs Dalloway Case No: 1300180/2024 1302788/2024 8

[46]Mrs Dalloway, in response to the scheduled disciplinary hearing for 19 September 2023, sent an email to Mrs Christie on 18 September 2023, in which she wrote, “What was the outcome of the safeguarding issues that I reported to my manager before the trip regarding Lewis Wastell?”. In reply, Mrs Christie wrote, “Any safeguarding concerns raised regarding Lewis Wastell and any potential outcome is highly confidential and cannot be shared.” (p202-203)

[47]On 19 September 2023 she issued a Fit Note for 4 weeks to 16 October 2023 for the stated reason, stress at work. (p204)

[48]By letter dated 20 September 2023, Mrs Dalloway raised a formal grievance. She wrote, “ I am concerned about our safeguarding procedures and the level of training I have received within this company. I have raised this many times with my managers past and present. My grievance is that had safeguarding issues that had been brought to my manager's attention have not been dealt with promptly and as company policy procedures are set out, the volunteer who I felt had safeguarding concerns about them would not have attended the Alton Towers trip if procedures had been followed by my manager when my concerns had been raised. This person has a history of concerns regarding safeguarding…” “I have sought advice from LADO (no names were mentioned) and they have said that I acted responsible and correctly to ensure the safety and protection of the children…” This has affected me greatly as I love my job. ….. I would be grateful if you could let me know when I can meet you to talk about my grievance. I would like to be accompanied at this meeting. (p205-206)

[49]The Tribunal noted that the concern raised was about the lack of action in that the safeguarding procedures had not being followed and the level of training. This concern did not specifically make another disclosure or raise a new concern about Lewis Wastell. The respondent did not disclose any correspondence in reply to this grievance. Neither was it made clear whether this grievance was acted upon.

[50]By letter dated 16 October 2023, Mrs Dalloway wrote to Jenny Douglas. She wrote this was a formal grievance in relation to her work colleague Sam Robak who she believed had defamed her character. Mrs Dalloway wanted to discuss her concerns about her working relationship with Sam Robak. These were not whistleblowing concerns.

[51]By letter dated 30 October 2023, Mrs Dalloway, (who had by now been formally invited to a investigation meeting by letter dated 27 October 2023 concerning her breach of contract) wrote to Sherine Robinson and requested an update on her grievance letters. The respondent did not confirm what response was sent in reply. Second Disciplinary – Both Claimants

[52]On or about September 2023, the respondent conducted an investigation into Case No: 1300180/2024 1302788/2024 9 the conduct of the claimants. This investigation found that both claimants had set up a Company to operate in direct competition. The information that was obtained were;(i) Certificate of Incorporation for Generation Impact CIC (Co No. 15177148) registered at Companies House on 30 September 2023 of which both claimants were named Directors; (p208)

(ii) Website for the business setting out their business activities; their services; contact details; the claimants described as Co-Founders/CEO (p252-264)

(iii) Evidence of application made to National Lottery by Generation Impact CIC dated 29 September 2023. The application is shown to have been made in the name of Mrs Dalloway.(p74 Suppl Bundle)

(iv) Evidence that Mrs Dalloway between the period 20 September 2023 to 22 October 2023 having downloaded from the respondent’s website, policies namely, Volunteer Policy; Safeguarding & Child Protection Guidance for Staff; Whistleblowing Policy.

[53]This information prompted the respondent to invoke its disciplinary process. Mrs Dalloway

[54]By letter dated 27 October 2023, Mrs Dalloway was invited to attend an investigation meeting to discuss an allegation that, “ you have breached the terms of your contract (restrictive covenance- part of this will be detailed) by setting up a company….” The meeting was scheduled for 2 November 2023 at the respondent’s office, to be conducted by Jennifer Douglas. (p239)

[55]Mrs Dalloway responded by letter dated 30 October 2023, requesting that as she was on sickness absence the meeting is re-arranged for a date when she is back at work. Further she mentioned that a third party had advised that she had left the respondent’s employment and that as she and Mrs Dean had been excluded from the respondent’s internet and email accounts this lead her to believe that a decision had already been made to terminate their employment, which if true constituted wrongful dismissal and grounds for legal action. (p240)

[56]By email dated 2 November 2023, Mrs Dalloway confirmed she was signed of work by a medical advisor and was not fit enough to attend the meeting, and that she had an hospital appointment that day. Upon receipt of this email Sherine Robinson replied, “This is not work, this is an investigation meeting as stated previously you are required to attend due to the severity of the allegations. We need to get this matter investigated as quickly as possible….” (p241)

[57]The respondent decided not to postpone the meeting expecting Mrs Dalloway to attend. She did not attend. The meeting was re-scheduled for Monday 6 November 2023 at 9am. The claimant was also given an alternative date of Thursday 9 November 2023 at 9am. This was confirmed by an email sent to on that same day at 10.50am. (p242)

[58]That same afternoon (2 November) at 16.14pm, Sherine Robinson sent a email to Mrs Dalloway, in which she stated, Case No: 1300180/2024 1302788/2024 10 “ We have requested that you attend an informal investigation meeting at head office due to serious concerns/allegations involving risk to the business. With the meeting being informal there is no legal requirement to provide you with any evidence head of any investigation meeting and also no legal right for you to be accompanied. This is not a formal meeting and is a fact finding conversational exercise to try to establish whether any misconduct has taken place on your behalf. In addition the opportunity to confer is more likely should we be flexible in providing you any additional information ahead of the meeting We understand that you are currently signed off work due to stress, however we are not asking that you complete regular work duties. Due to the serious nature of the issue and potential risk to the business, we are able to request this from you as you are still employed. We have been reasonable in providing you advance notice of the requirement for you to attend, which legally We do not have to do and we have also provided you with reasonable alternative dates and times which we trust at least one option should suffice…..” (p243)

[59]By email dated 9 November 2023 sent at 7.03am, Mrs Dalloway again reiterated that she was off work with work related stress, and that as the meeting was not work related, she did not understand the need to come to the office. Further she wanted to fully understand what she needed to comment on. (p246)

[60]Due to Mrs Dalloway not being prepared to attend an investigation meeting, the respondent proceeded to hold a formal disciplinary hearing. This was scheduled for 16 November 2023. A copy of this letter was not disclosed in the two bundles by either party. However by letter dated 15 November 2023, Mrs Dalloway sent her statement for the disciplinary meeting. This statement confirmed she had received the invite to disciplinary letter and knew fully what the allegations were. In this statement, Mrs Dalloway responded to the 3 allegations. In summary, she stated as follows.(i) In relation the breach of contract, she disputed that that she was bound by the Restrictive Services clause presented to her on 2 August 2023. She claimed she had queried this with Sherine Robinson and as this was not clarified to her she did not sign the form confirming acceptance.

(ii) She admitted Generation Impact CIC was registered at Companies House on 30 September 2023 with Mrs Dean. This was done due to the current financial climate with Dudley Council having restructured their youth services. The uncertainty regarding the contract end of service date caused them concern that they may lose their employment in 2024.

(iii) The company was non-trading. The company information was put on their own personal media platform and had not been advertised. They had not contacted anyone within the respondents contacts.

(iv) Access to Datto. was done to find out about the grievance policy and the timeframes for dealing with grievances as no-one from the respondent had contacted her about her grievances she had raised. She also needed to look at the company policies to check on her mental health whilst off sick. In the last 10 weeks she has received “ a barrage of negative accusations” which led her to being off work with stress. (p268-269) Case No: 1300180/2024 1302788/2024 11

[61]The disciplinary hearing was held by Derri Moran (HR Adviser- Warwick HR) on 16 November 2023, in the absence of Mrs Dalloway. Derri Moran considered the evidence and information before her, and summarily dismissed Mrs Dalloway for gross misconduct which she confirmed by a detailed letter dated 20 November 2023. Derri Moran made the following observations and conclusions;(i) she did not find the explanation given to create the company as reasonable as there was no information to confirm or indicate that her role was at risk of redundancy, and that if there was a risk that her employment would be terminated or transferred to another service provider the respondent had a responsibility to consult with her about possible redundancy or a transfer of employment.

(ii) the amendment clause to her contract was an addition to her contract terms and was considered to have been accepted in the absence of any formal written rejection;

(iii) there was evidence that the company was trading because marketing material had been placed on Facebook. That she had connected with families/service users of the respondent. There was an entry dated 11 October 2023 offering training to schools, community centres and charities within the local Black Country area. This showed the intention to serve within the same area in direct competition with the respondent.

(iv) the access of the respondent’s policies was not related to her sickness absence but extended to whistleblowing and safeguarding, which indicated was to be used for her company. (p269-270)

[62]Mrs Dalloway was given the right of appeal, which she exercised by letter dated 27 November 2023. In that letter, Mrs Dalloway reserved the right to submit further evidence based on legal advice. The stated grounds of appeal were as follows;(i) since receiving a Final Written Warning on 6 October 2023, there was a threat that her contract of employment would be terminated.

(ii) as she worked on a fixed term contract her employment was uncertain and insecure;

(iii) she did not accept that she was bound by the amendment clause (i.e restrictive clause) issued to in August 2023. She considered this to be a unilateral variation to her terms and conditions of employment;

(iv) her access to Datto was to seek information regarding the company sick pay scheme and the grievance procedure as she had not received a response to her grievance submitted on 29 September 2023.

[63]Mrs Dalloway ended her statement by stating; “ In summary I ask that you take the contents of this letter and my statement produced for the disciplinary action in these proceedings into account. In addition I would assert that no evidence was adduced that Generation Impact was active at the time of dismissal; nor that I was competing with yourselves for business which was your business. Further that dismissal on the grounds relied upon was unfair. An alternative to dismissal would have been to seek warranties that I would do nothing to impact on the work undertaken by Crossroads in any way, during the course of my employment.” (p273-274) Case No: 1300180/2024 1302788/2024 12

[64]By letter dated 29 November 2023, Mrs Christie, acknowledged Mrs Dalloway’s’ letter of appeal and invited Mrs Dalloway to a meeting to discuss her appeal arranged for Friday 1 December 2023 at 9.30am or on an alternative date of 4 December 2023.(p275)

[65]The hearing was held on 1 December 2023. Mrs Dalloway did not attend as she claimed she was only given 24 hours to prepare. In an email sent on 4 December 2023, she gave another reason for her non-attendance. She stated, “I was willing to attend Monday 4th December in person at head office but on Friday 1st December, it was brought to my attention that you had put mine and Stacey’s position on Indeed for people to apply to. This has led me to believe that the outcome of today's hearing is pronounced and a foregone conclusion has already been reached before hearing my appeal. I have followed your policies and procedures in accordance to ACAS advice. I have made the decision not to attend the appeal as I feel it would be futile. Therefore I will continue to seek advice and guidance from ACAS to move matters forward. (p276)

[66]By letter dated 5 December 2023 Mrs Christie replied to Mrs Dalloway’s email. She wrote, “ …. We are again disappointed that you have made the decision not to attend in person. We feel it is important that you still exercise the right to appeal and you have the opportunity to put forward your reasons for appeal for consideration. In addition to the points raised within your letter would you like to provide a written submission? We will give you the opportunity to do so by close of business 6 December 2023. After this point I will be considering the information provided to me and making a decision to your appeal. I will write to you with this outcome. I would also like to respond to your concern that the appeal process is futile given you feel a foregone conclusion has already been made due to your previous role having been advertised within the last few days. During the time in which your suspension, investigation, sickness and unfortunate dismissal took place, we have been doing our utmost as a team to absorb the additional tasks and responsibilities, however, the impact on the business was substantial. It was decided that due to being so short staffed, and the business need, we would start the process of advertising the vacancy. December is a notoriously difficult month to recruit within, and it was decided that given both of those factors we would start the process of recruiting now. No short listing of candidates has taken place which means that no decision has been made on any new employees. Therefore, the positions are still vacant and should we find ourselves in a position where we would be considering the rehire of you into your previous role, the role would still be vacant.” (p277)

[67]Mrs Dalloway replied to this letter that same date and wrote, “ I appreciate that you have let me answer my concerns regarding not attending. As previously stated I was informed that my position was being advertised, so you can see why I came to the conclusion you have already decided the outcome. Staff from the young carers team have informed agencies that I have left the company and this led me also to believe that your decision has been made. Case No: 1300180/2024 1302788/2024 13 During my suspension this led to my poor mental health and stress, whilst not at work no one contacted me to see how I was or to support me. This is the reason I checked crossroads policies to ensure I was following the correct procedure Which I have to state in your policy, that you would ensure staff were checked up on if struggling and you did not do. During my suspension I have not contacted a single family or agency even when they have found me on media platforms. I have set up Generation Impact purely because the contract may come to an end and as we have seen in the youth service not all jobs would be safe and guaranteed. Had my grievance being looked into in the correct time frame and I could have had the trust in my colleagues return to work I feel things would have been different but instead it only exacerbated my mental health. I await your reply.” (p278)

[68]Mrs Christie dealt with the appeal in the absence of Mrs Dalloway. She considered the appeal based on the evidence and information made available at the disciplinary hearing and the statements and correspondence sent by Mrs Dalloway in connection with this appeal. Mrs Christie dismissed the appeal and confirmed her reasons in a comprehensive letter dated 12 December 2023. (p279-281) The contents of this letter are not repeated but in summary she stated as follows;(i) the evidence showed the Absence Policy was not the only policy which had been accessed. The explanation provided was false. She believed the other policies accessed and downloaded were for use for her company;

(ii) contrary to her belief, her role was not at risk of redundancy; no communication on this point had been issued to any employee; and there was no viable grounds to form that belief. Therefore, this reason for forming the company was false.

(iii) there was evidence that the company was active from September 2023 onwards. This was supported by the fact a website had been created offering services and it was actively marketed on social media to provide services in the same local area.

(iv) the reason for advertising the role was that as of 20 November 2023 her employment had been formally terminated. The service was short staffed and the respondent needed to start the recruitment process at a difficult recruitment period. At the date of the appeal process no shortlisting or interviews had been undertaken. Mrs Stacey Dean

[69]On 9 October 2023 Mrs Dean presented a Fit Note for 4 weeks to 5 November 2023. The reason stated for absence was stressed that work. (p322)

[70]By letter dated 27 October 2027, the respondent invited Mrs Dean to an Investigation Meeting scheduled for Thursday 2 November 2023 at 11.30 am, with Jennifer Douglas. The meeting was to discuss the allegation that she had breached her contract of employment by setting up a company in breach of Clause 30 of her Contract of Employment. Mrs Dean was warned that depending on the outcome disciplinary action may be taken. (p323) Case No: 1300180/2024 1302788/2024 14

[71]Mrs Dean replied by email dated 1 November 2023 requesting the meeting is postponed until she is certified to return to work. (p324) in reply Sherine Robinson wrote, “ Whilst we know that you are off with a doctor's note you are still required to attend this investigation meeting as it cannot wait until your expected return, this is due to the severity of the allegations and the potential risk to our organisation.”(p325)

[72]Mrs Dean by an email in reply made a further request to postpone the meeting. She wrote, “ … Unfortunately I do not feel well enough to attend the meeting arranged to discuss as alleged breach of a restrictive covenant; which is an amendment to my contract of employment. Today I have a consultation with my GP as I have a respiratory infection as a result of work related stress. I shall be happy to attend any meetings, once my doctor has confirmed that I am fit enough to do so.” (p328) The scheduled meeting was not postponed.

[73]Mrs Dean did not attend the meeting. The meeting was rescheduled to Monday 6 November 2023 at 10.15am or on an alternative date of 9 November 2023 at 10.15am. (p330)

[74]On 2 November 2023 Mrs Dean presented another Fit Note to 26 November 2023. The reason for absence stated as chest infection. (p333)

[75]By letter dated 13 November 2023, the respondent invited Mrs Dean to a Disciplinary Hearing scheduled for Thursday 16 November 2023 at 11.30am, with Derri Moran. The allegation was that she had set up a company in breach of Clause 30. Documents were attached with the letter. Also she was informed that the allegation was one of gross misconduct and that if proven she could be summarily dismissed. (p334)

[76]Mrs Dean did not attend the disciplinary hearing. Instead she provided a written submission. This submission was not included in the bundle by either party. In evidence Mrs Dean confirmed she fully understood the purpose of the hearing namely that the allegation was about her being in breach of contract for setting up her company Generation Impact ICI.

[77]Derri Moran decided to summarily dismiss Mrs Dean. She confirmed her decision in a comprehensive letter dated 20 November 2023. (p336-337) She concluded that;(i) there was no basis to claim that her role was at risk of termination to justify creating her company. She explained that if her role was at risk, the respondent was under a duty to consult with her to determine her future employment.

(ii) the setting up of her company, whilst in the employment of the respondent, implied that she intended to trade in competition whilst still employed or immediately thereafter.

(iii) there was evidence obtained that marketing material had been placed on her Facebook account which was connected to families and service users of the respondent.

(iv) the company was active as evidenced by the Facebook posting dated 11 October 2023, which offered training to schools, community centres and charities within the local Black Country area. This was clear evidence of promoting the company and doing so whilst on sick leave from the Case No: 1300180/2024 1302788/2024 15 respondent.

(v) she had accessed the respondent policies and procedures during her sickness absence which supported the belief that these were being used for her new company.

[78]Mrs Dean was given the right of appeal. She exercised this right by submitting a letter of appeal dated 27th November 2023. (p342) Not surprisingly, this appeal letter mirrored the points raised by Mrs Dalloway. In summary, she pointed out the following;(i) she had 18 years of service and a clean disciplinary record until the final written warning received on 6 October 2023.

(ii) from 6 October 2023 there was threats her employment would be terminated.

(iii) her company was dormant and was created because of; (a) the threat of dismissal at the last disciplinary hearing; (b) her employment was uncertain and insecure because she was on a fixed terms contract;

(iv) she did not accept that she was bound by the amended clause issued in August 2023;

(v) she accessed the respondent’s Datto site during her absence to seek information on company sick pay; (v) no evidence was adduced that her company was active or that she was competing with the respondent for business;

[79]She considered her dismissal was unfair. The alternative was to seek warranties that she would do nothing to impact on the work undertaken by the respondent in any way during the course of her employment. (p342-343)

[80]By letter dated 29th November 2023 Mrs Dean was invited to a appeal hearing scheduled for Monday 4th December 2023 at 10.30am with Mrs Christie. (p344)

[81]Mrs Dean, like Mrs Dalloway requested their appeals are heard together. This was refused. The email in reply to this request, stated, “ … Due to confidentiality of employee relations and what would be a breach in ACAS Code of Practice, we will not be granting you both the opportunity to be heard together as part of one disciplinary hearing. We have provided a reasonable number of alternatives throughout this entire process and hope you understand the reasons behind why this is not something we can agree to. The scheduled individual meetings for 4th December will still be going ahead and will be going head in person at Head Office as planned.” (p345)

[82]Mrs Dean decided not to attend the appeal hearing, despite the fact that by letter dated 5 December 2023, Mrs Christie repeated the importance to Mrs Dean to attend the hearing. She wrote, “ We are again disappointed that you have made the decision once again not to attend in person. We feel it is important that you still exercise the right to appeal and you have the opportunity to put forward your reasons for appeal for consideration. In addition to the points raised within your letter would you like to provide a written submission? We will give you the opportunity to do so by close of business 6 December 2023. After that point I will be considering the Case No: 1300180/2024 1302788/2024 16 information provided to me and making a decision to your appeal. I will write to you with this outcome.....” (p346)

[83]Mrs Christie dealt with the appeal. She dismissed the appeal and confirmed her decision in a comprehensive letter dated 11 December 2023. (p348-349) In summary the reasons stated were as follows;(i) there was no basis for Mrs Dean to believe her employment was at risk following her being issued with a final written warning. She made the point the company was registered on 30 September 2023, which was before she was issued with a final written warning for the first disciplinary offence.

(ii) there was no reason to believe her employment was at risk of termination because of the contract. Her employment was protected, in the event, the contract was to be transferred to another company. The respondent had not issued any communication about the possible loss or transfer of the contract. Any information in the public domain about reduction in local authority funding had no relevance or impact on the respondent. She was mistaken about this.

(iii) contrary to Mrs Dean’s claim that the company was dormant, the respondent obtained evidence as disclosed which clearly showed the services were actively marketed on social media;

(iv) Clause 30 applied to Mrs Dean as she signed the Contract of Employment on 23 November 2021.

[84]Mrs Christie confirmed, she informed both claimants by letter that following the dismissal of the claimants they placed an advertisement on Indeed for Care Advisors. She explained the difficulties in recruitment and because of the forthcoming Christmas period they had to place an advertisement when they did. At the date of the appeals no interviews had taken place and no candidates had been shortlisted.

[85]Miss Pemberton kept her cross examination short and asked questions which were not entirely relevant to the reason for dismissal. She did not challenge Mrs Christie’s evidence despite having the opportunity to do so. Relevant Legal Framework Public Interest Disclosure

[86]A qualifying disclosure is a disclosure that falls within section 43B of the Employment Rights Act 1996.

[87]In order for the disclosure to be protected it has been made in the public interest and the claimant has to reasonably believe that it tended to show one or more of the following:(i) a breach of legal obligation;

(ii) that a criminal offence has been committed;

(iii) there has been a miscarriage of justice;

(iv) there is a health and safety danger;

(v) environmental damage or that any of the above is occurring or is likely to occur.

[88]Qualifying disclosures can only be made to certain classes of person; these include a person's employer. (s43C ERA 1996) Case No: 1300180/2024 1302788/2024 17

[89]In Williams v Michelle Brown AM

UKEAT/0044/19

/00, HHJ Auerbach identified five issues which a tribunal is required to decide in relation to whether something amounts to a qualifying disclosure. “ It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a believe it must be reasonably held”.

[90]The word disclosure must be given its ordinary meaning which involves a disclosure of information, that is conveying facts which means that making of mere allegations will not be a “disclosure” for these purposes. In Cavendish Munro Professional Risks Management Ltd v Geduld

(2010) IRLR 38

) Slade J said, “…the ordinary meaning of giving “information” is conveying facts. In the course of the hearing before us a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating “information” would be, “ The wards have not been clean for the past two weeks. Yesterday sharps were left lying around” Contrasted with that would be a statement that, “You are not complying with Health and Safety requirements” In our view this will be an allegation not information.”

[91]Thus care must be taken not to draw false distinctions between allegations and information when often a disclosure maybe both.

[92]In Kilraine v London Borough of Wandsworth (2018) ICR CA Sales LJ provided the following guidance;(i) s43B (1) should not be glossed to introduce into it a rigid dichotomy between information on the one hand and allegations on the other…

(ii) On the other hand although sometimes a statement which can be characterised as an allegation will also constitute “information” and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation will do so. Whether a particular allegation amounts to a qualifying disclosure under section 43B(1) will depend on whether it falls within the language used in that provision.

(iii) In order for a statement or disclosure to be a qualifying disclosure according to this language it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1)

(iv) Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgement by a tribunal in the light of all of the facts of the case.

[93]The disclosure will only be a qualifying disclosure if the worker believes that Case No: 1300180/2024 1302788/2024 18 the disclosure is in the public interest. This requirement was considered by the Court of Appeal In Chesterton Global Ltd v Nurmohamed

(2017) EWCA Civ 979

, in which it was held that they may not be a white line between personal and public interest, with any element of the former ruling out the statutory protection; where they are mixed interests it will be for the employment tribunal to rule, as a matter of fact, as to whether there was sufficient public interest to qualify under the legislation.

[94]It was stated that the Tribunal has to determine,(a) whether the worker subjectively believed at the time that the disclosure was in the public interest and

(b) if so whether that belief was objectively reasonable.

[95]The legislation does not define what the “public interest” means in the context of qualifying disclosure although the Employment Tribunals must be intended to apply it “as a matter of educated impression” looking at all the following factors;(i) the numbers in the group whose interests the disclosure served;

(ii) the nature of interests affected and the extent in which they are affected by the wrong being disclosed;(iii) the nature of the alleged wrongdoing disclosed; and (iv) for the identity of the alleged wrong doer. Section103A Employment Rights Act 1996 (“ERA”)

[96]Section103A, provides, “ An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or if more than one, the principle reason) for the dismissal is that the employee made a protected disclosure.”

[97]The principal reason is the reason that operated on the employer’s mind at the time of the dismissal. (Abernethy v Mott, Hay and Anderson

(1974) ICR 323

, CA).

[98]s103A ERA requires the protected disclosure to be the primary motivation for a dismissal. Fecitt and others v NHS Manchester (Public Concern at Work Intervening

(2012) ICR 372

CA.

[99]The burden of proof was described by Mummery LJ in Kuzel v Roche Products (2008) ICR. He said, “….. The burden of proof issue must be kept in proper perspective. As was observed in Maund when laying down the general approach to the burden of proof in the case of rival reasons for unfair dismissal only a small number of cases will in practise turn on the burden of proof.” Unfair Dismissal – s94 Employment Rights Act 1996

[100]Section 98(1) and (2) of ERA provide that: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show;(a) the reason (or, if more than one, the principal reason) for the dismissal; and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. Case No: 1300180/2024 1302788/2024 19 (2) A reason falls within this subsection if it -(b) relates to the conduct of the employee.”

[101]Section 98(4) of ERA provides that: “(4) Where the employer has fulfilled the requirements of subsection (1) the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

[102]In conduct cases the tribunal must have regard to the test set out in the case of British Home Stores Ltd -v- Burchell

[1978] IRLR 379

EAT, namely:(i) did the employer believe that the employee was guilty of misconduct;

(ii) did the employer have reasonable grounds for that belief;

(iii) had the employer carried out as much investigation into the matter as was reasonable in all the circumstances.

[103]The first question goes to the reason for the dismissal. The burden of showing a potentially fair reason is on the employer. The second and third questions go to the question of reasonableness under Section 98(4) ERA and the burden of proof is neutral.

[104]It was held in the case of Sainsbury’s Supermarkets Ltd v Hitt [2003]IRLR 23 CA that the range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason.

[105]In Shrestha v Genesis Housing Association Ltd

[2015] EWCA 94

it was made clear that the investigation should be looked at as a whole when assessing the question of reasonableness. It is not for the Tribunal to substitute its own view of what was the right course for the employer to adopt. The function of the Tribunal is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair; if the dismissal falls outside the band, it is unfair (Iceland Frozen Foods Ltd v Jones

1982 IRLR 439

EAT).

[106]The question is not whether the Tribunal would have believed the employee to be guilty based on that material, but whether the employer acted reasonably in forming that belief. The question of whether the employer acted reasonably is to be judged objectively. (Foley and Midland Bank Plc v Madden

(2000) IRLR 82

[107]In the case of Taylor v OCS Group Ltd

[2006] EWCA Civ 702

it was established that if there are procedural flaws in the process followed by the employer they should be considered alongside the reason for dismissal when Case No: 1300180/2024 1302788/2024 20 the Tribunal comes to assess whether in all the circumstances employer acted reasonably in treating the reason as a sufficient one for dismissal.

[108]In determining the reasonableness of a dismissal the Tribunal can only take account of those facts (or beliefs) that were known at the point of dismissal to those who took the actual decision to dismiss (after reasonable investigation) Polkey

[109]In Polkey v AE Dayton Services Ltd

[1987] IRLR 503

, the House of Lords held that a compensatory award may be reduced or limited to reflect the chance that the claimant would have been dismissed in any event and that the employer's procedural errors accordingly made no difference to the outcome. A Tribunal should make a realistic assessment of loss according to what might have occurred in the future. The chances of the actual employer, not a hypothetical reasonable employer, dismissing the employee have to be assessed.

[110]In Software 2000 Ltd v Andrews and others

UKEAT/0533/06

the suggested approach to Polkey was as follows: The question is not whether the Tribunal can predict with confidence all that would have occurred; rather it is whether it can make any assessment with sufficient confidence about what is likely to have happened, using its common sense, experience and sense of justice. Contributory conduct

[111]A Tribunal may reduce the basic award if it finds that the employee’s conduct before dismissal was such that it would be just and equitable to reduce it (section 122(2), ERA 1996).

[112]Furthermore, where a Tribunal finds that the dismissal "was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding" (section 123(6), ERA 1996).

[113]In Nelson v BBC (No.2)

[1979] IRLR 346

(CA), the Court of Appeal set out three factors that must be present for the compensatory award to be reduced for contributory fault:a. The employee’s conduct must be culpable or blameworthy.

b. It must have actually caused or contributed to the dismissal.

c. The reduction must be just and equitable.

[114]In Steen v ASP Packaging Ltd

UKEAT/23/13

, the EAT held that a Tribunal must consider the following four questions:a. What was the conduct which was said to give rise to possible contributory fault?

b. Was that conduct blameworthy, irrespective of the employer's view on the matter?

c. For the purposes of section 123(6), did the blameworthy conduct cause or contribute to the dismissal?

d. If so, to what extent should the award be reduced and to what extent would it be just and equitable to reduce it? Case No: 1300180/2024 1302788/2024 21 Analysis & Conclusion Observations

[115]In our deliberations we made observations we considered necessary to highlight to the parties.(a) the claimants acted jointly in setting up their company Generation Impact CIC

(b) they acted jointly in the disciplinary process in the following way; (i) went on sick leave during the disciplinary process; (ii) tried to delay the disciplinary process; (iii) avoided attending the investigation, disciplinary and appeal hearings.

(c) this was not the reasonable conduct of employees, who believed they had done nothing wrong and did not want to lose their jobs because they loved what they do;

(d) they did not produce any medical evidence, in the form of a medical report to confirm they were medically unfit and unable to attend and participate in the disciplinary process;

(e) they had the benefit of legal advice and assistance from their adviser Miss Pemberton during this disciplinary process.

(f) they did not in the disciplinary process, including in the grounds of appeal assert their dismissal was because they had made protected disclosures. The first time this was asserted was in their Claim Forms, and only then it was pleaded as an alternative claim to their main claim of ordinary unfair dismissal.

[116]We applied the relevant law to the findings of fact to determine the issues, and reached the following conclusions. Did the Claimants make a protected disclosure

[117]We first considered Mrs Dalloway’s disclosure. The disclosure relied upon was that on 25 July 2023 a service user (a child) informed Mrs Dalloway that on 5 July 2023 Lewis Wastell (volunteer) made a reference to a sexual encounter during a conversation with her. The reference to the sexual encounter was set out in the Charity Log completed by Mrs Dalloway on 27 July 2023. Mrs Dalloway reported this to her line manager Jenny Douglas around the same date. Further the incident was reported to LADO on 15 September 2023 by telephone.

[118]In Mrs Dean’s pleaded claim, the pleaded disclosure she relied upon was the telephone call made to LADO on 15 September 2023 about Lewis Wastell’s conversation.

[119]Both claimants believed the disclosure tended to show that;(i) a criminal offence, (namely that of grooming of a child, which is a criminal offence), had either been committed, or was being committed or Case No: 1300180/2024 1302788/2024 22 was likely to be committed; and/or

(ii) the respondent failed to comply with the statutory requirement to safeguard all of the children in its care from Lewis Wastell.

[120]The respondent accepted the claimants raised safeguarding concerns. However, they disputed that these concerns amounted to qualifying protected disclosures at law, on the following grounds;(i) they disputed the claimants, at that time, reasonably believed that a criminal offence had been committed, or was being committed or was likely to be committed; and/or that the respondent had failed to comply with a statutory obligation to safeguard the children or was likely to do so. and

(ii) LADO (Local Authority Designated Officer) is not a prescribed body to whom a disclosure should be made.

[121]The respondent did not call Jennifer Douglas to give evidence or provide a written statement. Mrs Christie, in her witness statement stated that she was not aware of the disclosure made on 25 July 2023, and first became aware of the report made to LADO when this was reported to her by Jennifer Douglas and Sherine Robinson, and when she was contacted by LADO on 20 September 2023.

[122]Applying the law to the facts we came to the following conclusion;(i) Mrs Dalloway made a safeguarding concern, about what she was told by the service user as evidenced by the written record made in the Charity Log. This was not disputed by the respondent.

(ii) It was not disputed that both claimants made a call to LADO on 15 September 2023. However, there was no written record or evidence of what was actually reported to LADO. Accepting Mrs Dalloway’s evidence then the call must have involved a discussion about the conversation relayed by the service user.

(iii) In our view there was a reasonable basis for Mrs Dalloway to form the belief that Lewis Wastell had acted inappropriately and that by raising the concern to Jennifer Douglas, this was in the public interest because of a concern that Lewis Wastell may have conversations about his sex life with other young female children. This belief was further supported by the telephone call made to LADO. We find this belief was reasonable.

(iv) However, we did not find that at that time Mrs Dalloway could have subjectively believed that; (a) a criminal offence (i.e grooming of a child) was being committed or was likely to have been committed; and/or (b) that a legal obligation (ie safeguarding of children in their care) was being committed.

[123]We agreed with Mr Rozycki’s submission that Mrs Dalloway could not have come to the reasonable subjective belief that the comments made by Lewis Wastell amounted to grooming of that child and/or that the respondent was failing in their legal obligation to safeguard children. Case No: 1300180/2024 1302788/2024 23

[124]Further, if Mrs Dalloway had subjectively formed the belief, we would have expected her to have expressly communicated this belief including doing everything necessary to stop Lewis Wastell going on the trip or perhaps not going herself in protest of her concerns.

[125]Accordingly, for this reason we did not find Mrs Dalloway’s concern made on 25 July 2023 amounted to a qualifying disclosure at law. Mrs Dean

[126]Mrs Dean’s pleaded case was that she made a disclosure to LADO in a telephone call on 15 September 2023. There is no record of this conversation. However, we assumed, if she did make this call, she is likely to have repeated what Mrs Dalloway may have said to LADO.

[127]Notwithstanding this, we considered the preliminary issue raised by Mr Rozcyski namely that the alleged disclosure to LADO was not made to a “prescribed person” in accordance with S43F Employment Rights Act 1996.

[128]We checked the Public Interest Disclosure (Prescribed Persons) Amendment Order 2025, and the published prescribed persons/bodies lists and found that LADO is not a prescribed person/body to whom a disclosure can be made.

[129]Accordingly, in accordance with the law, Mrs Dean’s claimed disclosure failed as it was not made to a prescribed person/body. What was the reason or if more than one, the principal reason for dismissal.

[130]However, for completeness, if we were wrong in our decision about the disclosures, we considered the claimants s103a complaint at its highest (i.e as if they had made qualifying protected disclosures).

[131]In reaching our decision, we stood back from all of the evidence and considered it in the round.

[132]We were satisfied the reason for the claimants dismissal was the fact they were found guilty of gross misconduct. There was significant amount of positive and undisputed evidence for this, as confirmed in their detailed letters of dismissal. These are not repeated herein but have been clearly and expressly explained in their letters and also in our conclusions in respect of the unfair dismissal claim. (see below)

[133]We noted that neither the claimants during their disciplinary process including at the appeal stage, mentioned or claimed that the reason for their dismissal was because they made protected disclosures. Had this been their genuine belief at that time, we find they would have raised it without hesitation. In our view, this was an afterthought which was raised as an alternative claim in their Claim Forms, with the substantive claim that of ordinary unfair dismissal. Case No: 1300180/2024 1302788/2024 24

[134]Mrs Dalloway, to a direct question asked by the Judge, “ Do you accept you was dismissed because of your conduct?” replied “yes”. That was a clear and unequivocal acceptance of the fact that her dismissal had nothing to do with her asserted disclosure. This candid reply seriously undermined the complaint of automatic unfair dismissal and the justification in pursuing this in this complaint. This admission also supported the Tribunals view that this complaint was an afterthought, after her dismissal.

[135]Mrs Dean, in her submissions, indicated that Derri Moran would have been influenced in her decision to dismiss her by the fact that she was present at the investigation meeting relating to the first disciplinary. She, therefore would have had knowledge about the concerns raised about Lewis Wastell. We rejected this suggestion without hesitation. There was no evidence to either infer or come to this conclusion.

[136]Overall we were satisfied there was no causal link between the alleged disclosures and the reason for their dismissal. The evidence was abundantly clear that the disciplinary process started at the end of October 2023, was because of the information discovered about the claimants conduct in setting up their company/business in direct competition with the respondent. This was a breach of their terms of employment and the implied duty of fidelity.

[137]Accordingly the claim for automatic unfair dismissal made under s103A Employment Rights Act 1996 failed and was dismissed. Unfair Dismissal Reason for dismissal

[138]The respondent admitted dismissing the claimants on the grounds of their conduct.

[139]We were satisfied the respondent had shown the principal reason for the claimants dismissal, namely conduct which is a potentially fair reason falling within s98(2)(b) ERA.

[140]On the facts, the conduct complained of was clear. The claimants knew full well of the substance of the alleged conduct, namely contrary to Clause 30 in their contracts of employment, without prior approval and consent of the respondent, they during their employment set up and directly engaged in another business, that was in conflict with the business interest of the respondent.

[141]We considered Mrs Dalloway’s position that she was charged with breach of the Restrictive Clause that was served on her on 2 August 2023, which she did not agree to because she did not understand the terms and/or did not sign the document to confirm her acceptance. We came to the following conclusion;(i) the Restrictive Clause is a detailed document and contained some legal terms. However, the substance of the stated restrictions to be applied are clear and not difficult to understand. The reference to the terms “Restricted Customer, Restricted Products, Restrictive Services and Prospective Case No: 1300180/2024 1302788/2024 25 Customer, are clearly defined, which should not have been a problem for Mrs Dalloway to have understood. We found Mrs Dalloway to be a reasonably intelligent individual and capable of understanding the contents and purpose of this clause in the context of her employment and the respondent’s business.

(ii) We rejected the point made that this clause was unenforceable because there was no meaningful consultation and that she queried the contents of the clause and no response had been received from Sherine Robinson. We noted Clause 23 in the contract of employment, which gave the respondent the right to make reasonable changes to any terms of an employees contract. (p136) We noted the requisite 2 weeks’ notice was not given. That did not make the clause unenforceable. The fact is that by the date of the disciplinary hearing in November 2023 this clause had been deemed to have been accepted.

(iii) We also noted the letter required the employees to respond by 7 August 2023 and specifically stated, “ If there is no response it will be implied that you do agree to the addendum and have no queries..” (p162) This requirement was clear. Mrs Dalloway did not submit any written response. We noted from correspondence and grievances raised that Mrs Dalloway was capable of raising issues in writing. This was an important clause, which we found she did not query in writing as required. There was nothing stopping her from raising a query after her alleged conversation with Sherine Robinson. We accept the respondent’s submission that she affirmed acceptance of this clause.

(iv) Even, if we were wrong on this issue, the fact is that throughout the disciplinary process, Mrs Dalloway was fully aware of the conduct she and Mrs Dean were alleged to have committed which effectively was in breach of Clause 30 and the implied duty of fidelity.

[142]We noted Mrs Dean in correspondence dated 27 November 2023 in response to her dismissal letter stated that she did not recognise the clause referred to in the letter inviting her to a disciplinary hearing. She said this clause did not appear in her contract employment. The reference was to the Restrictive Clause which was circulated in August 2023. She stated she did not accept that she was bound by such a restrictive clause and that she did not accept this variation. (p342)

[143]We found this point confusing and irrelevant to raise. The letters sent to Mrs Dean throughout this disciplinary process only referred to breach of Clause 30. We formed the view that as both claimants were being advised and assisted by Miss Pemberton a confusion must have occurred in drafting this letter.

[144]Nonetheless, we found the allegations of misconduct proven on the facts. The claimants, without the prior consent and approval of the respondent during their employment formed a company registered on 30 September 2023. They actively marketed this company by seeking business and funding; and offering services offered by the respondent with a clear intention to set up in competition. Case No: 1300180/2024 1302788/2024 26 Was the dismissal fair.

[145]Our focus was on the actions of the respondent and whether it acted reasonably in dismissing the claimants. In this regard we reminded ourselves that we must not substitute our decision with that of the respondent’s decision. We had to consider whether the respondent’s actions were within the range of reasonable responses Did the respondent carry out a reasonable investigation

[146]In assessing the fairness of the dismissal, we had regard to the requirements in the Burchell test. We considered the initial investigation. The onus was on the respondent to carry out as much investigation as was reasonable before deciding whether dismissal was a reasonable response in the circumstances. The investigation did not need be to the standard of a police forensic investigation but that it must be a reasonable one.

[147]On the facts, we were satisfied the respondent carried out a reasonable investigation. Given the undisputed and uncontroversial documentary evidence before the respondent, we did not find that the respondent missed any specific enquiries in relation to the allegations. Looking at the investigation as a whole, we considered it was within the range of reasonable responses.

[148]In evidence, Mrs Dean asserted that the respondent should have asked for bank statements of the company, and had they checked their website it would have shown the company was not trading or operational. We rejected this assertion for the following reasons. Both claimants were fully aware of the information presented. It was incumbent on them to provide all evidence to the contrary. This could have been in the form of bank statements, from the period 30 September 2023; a report from their website designer to confirm the website was not live and operational; the claimants themselves could have demonstrated this to the respondent, which they did not as they decided not to attend the hearings; they could have provided evidence from their Accountant about their trading position at that time including information about their funding applications made. Had they done so, this would have given the respondent an opportunity to investigate further. The respondent therefore had to make a decision based on the evidence presented and available.

[149]We gave further consideration to two specific issues raised by the claimants and which were raised by Miss Pemberton in her written submission. Firstly, in relation to the lottery funding application made on 22 September 2023 made in the name of the company. (p74-78)The copy evidence made available showed that Mrs Dalloway was the person who has logged in. The application was for lottery funds and confirmed the details of Mrs Dean. Mrs Dalloway denied making this application on this date, which recorded the log in had been made using Mrs Dalloway’s email with the respondent. She provided evidence that she was abroad on holiday on that date. Mrs Dean denied any involvement in this application.

[150]It is not the function of the Tribunal to determine who logged on to make this Case No: 1300180/2024 1302788/2024 27 application. The Tribunal had to consider whether a reasonable investigation was conducted in respect of this issue. Mrs Christie explained in evidence that only she would have the authority to access an employee’s email account, and only then it would be by the IT Dept. She did not on 23 September 2023 have cause to check Mrs Dalloway’s email account and did not do so. The fact is that neither she or any third person would have had knowledge about the company set up by the claimants and the relevant details to complete the application. The Tribunal found it implausible that anyone from the respondent accessed Mrs Dalloway’s email account; logged on with her details (which they would not have been aware of) and made the application. We acknowledge Mrs Dalloway was abroad on holiday, however, this would not have prevented Mrs Dalloway from making this application by using a laptop or even using her mobile phone. We did not find Mrs Dalloway’s evidence credible on this point.

[151]The second point about the claimants not actively promoting their company. The respondent had before it entries made on Facebook dated 11 October 2023, which clearly demonstrated what the claimants were doing. Given this undisputed evidence what further queries could the respondent had made in the absence of any evidence produced to the contrary.

[152]We were satisfied the investigation carried out by the respondent was adequate and reasonable in the circumstances. Whether this was intentional or based on advice received, the claimants wrongly formed the view that it was for the respondent to disprove the claimant’s assertions. The evidence presented to the claimants was abundantly clear. It was then up to the claimants to show and provide evidence that the company was not trading and was not being actively marketed

[153]In terms of the procedure followed, we found no procedural irregularity that would have rendered the dismissal procedurally unfair.

[154]The agreed List of Issues record no procedural irregularity. However, Miss Pemberton in her written submissions claimed the dismissal was procedurally unfair for the following points;(i) at the time of the disciplinary process in October 2023 and up to the appeal process the claimants were signed off from work with work related stress and the correspondence put pressure on them to attend the hearings;

(ii) they were not made fully aware of the reason for the investigation meeting and denied the “benefit of the usual protections afforded to them”

(iii) their request to attend the investigatory meeting was refused.

(iv) the respondent did not call Derri Moran the dismissing officer, thereby denying the claimants the opportunity to challenge her evidence;

(v) the respondent failed to involve a Trustee in the disciplinary process in accordance with its own disciplinary procedure. The relevant disciplinary procedure was not referred to.

[155]For completeness we considered our decision on these points. We deal with each point in turn;(i) neither claimant produced any medical report to confirm that they were medically unfit to participate in the disciplinary process. They were content Case No: 1300180/2024 1302788/2024 28 to do so albeit in writing, which they were afforded the opportunity to do so.

(ii) at the investigation stage of a disciplinary there is no legal obligation for the respondent to give advance notice of the purpose of the investigation meeting. Neither was this a breach of the ACAS Code of Practice. Further there is no legal right for an employee to be allowed to be accompanied at an investigation meeting.

(iii) the respondent was entitled to refuse to hold separate investigation and disciplinary hearings. There is no requirement that they did so. Given the claimants were jointly involved in their enterprise it was appropriate that they were interviewed separately.

(iv) the respondent explained the reason for Derri Moran’s absence. However, the claimants appealed their dismissal on the same grounds as the disciplinary hearing. Mrs Christie, the Appeal Manager, attended to give live evidence. Miss Pemberton, for her own reasons did not challenge her or cross examine her on the reasons for dismissal and her reasons for dismissing the appeals. That is not a procedural irregularity.

(v) We were not referred to any section of the disciplinary procedures that required the involvement of a Trustee and how this could have rendered the dismissals to be procedurally flawed.

[156]For the avoidance of doubt, we were satisfied that;(i) from the outset the claimants were made aware of the alleged misconduct;

(ii) they were provided copies of the documentary evidence they had gathered;

(iii) they were fully aware and understood the reason for the investigation and disciplinary process;

(iv) despite their own decision not to attend the hearings they were given full opportunity to make written representations;

(v) they fully understood the seriousness of the process having been warned they may be summarily dismissed;

(vi) they were given the right to be accompanied at these hearings and were were afforded the right of appeal;

(vii) at the appeal stage they were again encouraged to attend in person but declined to do so.

[157]We therefore concluded that the procedure adopted by the respondent was fair in the circumstances. Was the respondent’s belief that the claimants had committed misconduct reasonably held?

[158]We reminded ourselves that in considering this question the issue was not for the Tribunal whether it would have believed the claimants to be guilty based on the material before respondent but whether the respondent had acted reasonably in forming its belief. The question of whether the Case No: 1300180/2024 1302788/2024 29 respondent acted reasonably and had reasonable grounds for his belief was to be judged objectively.

[159]Based on the facts and positive evidence before the respondent, we concluded without hesitation that the respondent acted reasonably and had reasonable grounds to form the belief that the claimants were guilty of the misconduct for which they were subjected to disciplinary action and summarily dismissed. Reasonableness of the sanction

[160]On the facts, the Tribunal was satisfied the dismissals fell within the range of reasonable responses available to a reasonable employer in the circumstances. We came to this conclusion for the following reasons.(i) there was no evidence to justify the claimants setting up their company/business for reasons stated. There was no evidence that their roles were at risk. The respondent in their correspondence made this perfectly clear, including that their employment was legally protected in the event the contract was transferred at any time in the future.

(ii) in the absence of any contrary evidence to the positive findings made by the respondent, the company was live and trading in competition to the services provided by the respondent in the geographical area it operated in. The production of the end of year accounts for the company further confirmed the belief that the company was live and trading from 30 September 2023 during the course of the claimants employment with the respondent, which was a breach of Clause 30.

(iii) in cross examination the claimants accepted by setting up their own company without prior approval was a breach of clause 30. That in itself was a breach capable of disciplinary action and dismissal.

(iv) any employer is within its right to protect and safeguard its business. All employees have a contractual duty and an implied duty of fidelity to their employer to adhere to the terms of their employment. The claimants breached this duty.

(v) the allegation that the decision to dismiss and the appeal outcome was predetermined. We rejected this. It had no merit or justification. Mrs Christie explained clearly the reason why an advert was placed on Indeed after their dismissal. The respondent was entitled to do so. She explained the reasoning for this which we accepted was in the best interests of their service and in accordance with their agreed service provision. The claimants view that the appeal process was futile was their opinion and was used as an excuse to avoid attending their appeal hearings.

(vi) the conduct complained of was proven, on a balance of probabilities was serious and capable of summary dismissal. Conclusion Case No: 1300180/2024 1302788/2024 30

Conclusion

[161]For the reasons stated above we were satisfied the respondent acted fairly and reasonably in summarily dismissing the claimants for gross misconduct. Accordingly, this claim of unfair dismissal failed and was dismissed. Approved By Employment Judge Bansal Date: 3 February 2026 Case No: 1300180/2024 1302788/2024 31 AGREED LIST OF ISSUES

Conclusion

[1]Unfair dismissal1.1 Was the reason or principal reason for dismissal that the claimant made a protected disclosures etc? (Dismissal under section 103A ERA 1996) If so, the claimant will be regarded as unfairly dismissed.

1.2 What was the reason or principal reason for dismissal? The respondent contends that the claimants were guilty of misconduct because of breaching implied and express terms of their contracts of employment, when they set up a company providing services in direct competition with the respondent. The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct.

1.3 If the reason was misconduct, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:1.3.1 there were reasonable grounds for that belief;

1.3.2 at the time the belief was formed the respondent had carried out a reasonable investigation;

1.3.3 the respondent otherwise acted in a procedurally fair manner;

1.3.4 dismissal was within the range of reasonable responses. The claimants contend that the respondent did not act reasonably in that it:

1.3.5 Unilaterally varied the of contract of employment with a view to introducing a restrictive covenant to implement a restraint of trade clause, which was not accepted by the claimants.

1.3.6 Failed to produce documents relied on to discipline the claimants, namely an updated copy of the contract with the restrictive covenant.

1.3.7 Failed to take account of health and the welfare of the claimants, by proceeding with a disciplinary hearing on 15/11/23 without having an investigation meeting.

1.3.8 Predetermined the decision to dismiss. The claimants had been told by service users that management had told them that the claimants would not be returning to work.

1.3.9 Predetermined the outcome of the appeal as the claimant’s positions had been advertised before the appeal hearings had concluded and the claimants notified of the outcomes.

[2]Remedy for unfair dismissal2.1 The Claimants confirmed on 9th October 2024 that they are not seeking reinstatement or reengagement.

2.2 If there is a compensatory award, how much should it be? For each claimant, the Tribunal will decide:2.2.1 What financial losses has the dismissal caused the claimant? Case No: 1300180/2024 1302788/2024 32

2.2.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

2.2.3 If not, for what period of loss should the claimant be compensated?

2.2.4 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

2.2.5 Did the respondent or the claimant unreasonably fail to comply with it by [Claimants to specify alleged breach]?

2.2.6 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

2.2.7 Does the statutory cap of fifty-two weeks’ pay or £105,707 apply?

2.3 What basic award is payable to the claimant, if any?

[3]Protected disclosure3.1 Did the claimants make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:3.1.1 What did the claimants say or write? When? To whom? The claimants say they made disclosures on these occasions:3.1.1.1 On 25/07/23 a service user by the name of Isabel Wilkins (aged 10 at the time) informed the first claimant that on 05/07/23 Louis Wastall (volunteer) made reference to a sexual encounter during a conversation with her. The first claimant immediately recorded the incident in the Register of Action/Charity Log.

3.1.1.2 On or about 25/07/23 the first claimant reported the incident in paragraph 3.1.1.1 to her line manager Jennifer Douglas via WhatsApp.

3.1.1.3 On 15/09/24, after no action was taken by the respondent, the first claimant reported the incident in paragraph 3.1.1.1 to Local Authority Designated Officer, Sukhchandan Kaur by telephone.

3.1.1.4 On 15/09/23, after no action was taken by the respondent, the second claimant reported the incident in paragraph 3.1.1.1 to Local Authority Designated Officer, Sukhchandan Kaur by telephone. Both claimants also sought advice from the NSPCC and the safeguarding lead on this matter (this is background information and is not pursued as a separate disclosure).

3.1.2 Did they disclose information?

3.1.3 Did they believe the disclosure of information was made in the public interest?

3.1.4 Was that belief reasonable?

3.1.5 Did they believe it tended to show that: Case No: 1300180/2024 1302788/2024 333.1.5.1 a criminal offence, namely grooming of a child contrary to the Sexual Offences Act 2003 and/or sexual communication with a child contrary to s.67 Serious Crime Act 2016, has been committed, is being committed or is likely to be committed

3.1.5.2 a person had failed, was failing or was likely to fail to comply with any legal obligation, namely the Respondent failed to comply with the statutory requirement to safeguard all of the children in its care; more particularly Working Together to Safeguard Children, the Children Act 1989, the Children Act 2004, the Safeguarding of Vulnerable Groups 2006, the Care Act 2014, Working to Safeguard Children (Statutory Guidance 2008 and 2023, Health and Social Care Act (Regulated Activities) 2014 and the Health and Safety Act;

3.1.6 Was that belief reasonable?

3.2 If the claimant made a qualifying disclosure, was it made: 3.2.1 to the claimant’s employer? The Respondent accepts that any disclosure to the line manager was a disclosure to the employer for the purposes of s.43C ERA 1996. If so, it was a protected disclosure. ________________________________________________________________ Case No.1300180/2024 1302788/2024 EMPLOYMENT TRIBUNALS Claimants: Mrs T Dalloway & Mrs S Dean Respondent: Sandwell Crossland Care Attendant Scheme Ltd