Miss G Bate-Jones v Home Office (UKBF): 1306052/2018
EMPLOYMENT TRIBUNALS
Case No 1306052/2018
Between
Miss G Bate-JonesClaimantHome Office (UKBF) PRELIMINARY HEARINGRespondent
Before
Employment Judge Mark ButlerMr Brockley (instructed by Counsel) for claimantMr Feeny (instructed by Counsel) for respondentDate 22 July 2021
JUDGMENT
The claimant’s applications:• The application to amend the claim to include victimisation on 6 June 2019 is refused.• The remaining parts of the 6 June 2019 application to amend is allowed.• The application to amend the claim dated 25 November 2019 is refused.
REASONS
[1]The claimant was employed by the respondent from 29 September 1980 up until her dismissal on 22 August 2018. She had been employed as a UK Border Force Officer.[2]The claimant complied with ACAS Early Conciliation procedures. She submitted an in-time complaint against the respondent, with her claim form being submitted on 21 December 2018, following early conciliation from 02 November 2018 to 02 December 2018.[3]The claimant complained that she had been unfairly dismissed, victimised and was owed arrears in pay. However, as stated on my previous Case Management Order, dated 06 September 2019 following the first day of this hearing on 30 August 2019, reference to victimisation in the claim form appeared to refer to detriments after having ‘reported improper conduct in the workplace’, rather than victimisation in the Equality Act 2010 sense.[4]A request for further and better particulars by the respondent was made on 28 February 2019. These were provided by the claimant on 15 March 2019.[5]The first Preliminary Hearing in this case took place in front of Employment Judge Self on 17 April 2019. At this hearing the claimant’s case remained unclear. Consequently, at that hearing the Employment Judge ordered that the claimant must by 4 pm on 15 May 2019 file with the tribunal and serve on the respondent a 2 page document, which would provide further and better particulars of less favourable treatment and/or detriments that formed the basis of her claims. This deadline was extended by Employment Judge Self to 4pm on 06 June 2019, by letter dated 23 May 2019.[6]Employment Judge Self also listed the hearing for a further Preliminary Hearing.[7]In responding to the Order of Employment Judge Self, the claimant submitted a document by email on 06 June 2019. This document was explained as being the further and better particulars, as directed, but also included an application to amend the claim form. In essence, this amendment sought to add claims of a failure to make reasonable adjustments, disability harassment, victimisation and being subjected to a detriment because of trade union activities.[8]At the first day of this hearing, on the 30 August 2019, the claimant gave an indication that a further application to amend was going to be made. I heard evidence from the claimant on why there had been delays in bringing her additional complaints/amendments. It was explained to me that she was unrepresented but that she was seeking to amend having received some advice in light of now having legal representation. However, the amendments had not at that time been formulated to the degree needed in order to be considered.[9]I decided to go part heard in this case, having heard submissions from both parties. This was to enable the second set of amendments to be properly formulated and served on the respondent, and this way the amendments could all be considered together. This, in my decision, furthered the overriding objective.[10]The second application to amend was received by the respondent on the 25 November 2019. Although it was explained to me that the application was sent initially on the 04 November 2019, it was accepted by the claimant that it had been sent to the wrong email address (it was sent to a different file handler, who was previously responsible for the file) to that on record.[11]The history of this particular preliminary hearing before me is as follows. This preliminary hearing was initially listed for 30 August 2019. However, it went part heard. The second day was initially listed for 26 November 2019. However, due to my own unavailability on that day, and as I had heard evidence in this case, the hearing on that date was adjourned, having been listed before another Judge. The second day of the hearing took place on 04 December 2019. The hearing was to consider the following:a. The applications to amend the claim formb. Make case management orders as required.[12]Due to time, case management orders were not completed in this case. This case will need to be listed for a further Preliminary Hearing. The parties are both represented and have indicated a desire to have this done by telephone. I have explained to the parties that it will need to be listed as an in person hearing in the first instance. However, if the parties can agree an agenda and a list of issues, then at that point they can apply to convert the hearing to a telephone hearing. Issues and Law[13]Where a claimant seeks to amend their claim form (ET1) the tribunal has a discretion whether to allow or refuse the amendment.[14]Under its general powers to regulate its own proceedings and specific case management powers the tribunal can consider an application to amend a claim at any stage of the proceedings (Presidential Guidance March 2014).[15]The representative of both the claimant and the respondent made submissions to me in relation to the tests to be applied in consideration of applications to[16]Both referred me to the case of Selkent Bus Company Ltd v Moore [1996] ICR 836, and I was also myself mindful of the direction provided by the case of Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650, as well as the sections of the Presidential Guidance on Case Management dealing with applications to[17]The guidance provided by Selkent, in particular, was that the key principle when considering the exercise of the discretion to allow an amendment is to have regard to all the circumstances, and in particular any injustice or hardship which would result from the amendment or refusal to amend.[18]In Selkent, the Employment Appeal tribunal set out a non-exhaustive list of relevant factors which are to be taken into account in considering the balancing exercise of all the relevant factors, having regard to the interests of justice and the relative hardship that would be caused to the parties by the granting or refusing of the amendment. These were; the nature of the amendment, the applicability of time limits, and the timing and manner of the application: “(4) Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:(a) The nature of the amendment Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.(b) The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions eg, in the case of unfair dismissal, S.67 of the 1978 Act.(c) The timing and manner of the application An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”[19]The Presidential Guidance reaffirms the Cocking and Selkent guidance, noting that relevant factors include the three matters outlined in Selkent, and also noting that tribunals draw a distinction between amendments which seek to add or substitute a new claim arising out of the same facts as the original claim, and those which add a new claim entirely unconnected with the original claim.[20]With regard to time limits, the Presidential Guidance notes that the fact that the relevant time limit for presenting the new claim has expired will not exclude the discretion to allow the amendment, and also that it will not always be just to allow an amendment even where no new facts are pleaded. In particular, the Guidance notes that where there is no link between the facts described in the claim form and the proposed amendment, the tribunal must consider whether the new claim is in time and will take into account the tests for extending time limits. In this case, those were; the just and equitable formula in relation to the victimisation claim and the expanded detrimental treatment claim, and the not reasonably practicable formula in relation to the failure to pay unpaid holiday and wrongful dismissal.[21]I was also taken to the following cases:a. Mist v Derby Community Health Services NHS Trust [2016] UKEAT/0170/15. Mr Brockley took me to para 77 and 78, where the focus is on the factor of time: “77. On undertaking that more detailed analysis, the ET’s error becomes apparent. The flaw in its reasoning is that it permits the time limit issue - the only matter the Second Respondent could point to as giving rise to any potential hardship - to outweigh all other factors, including the denial of any determination of the merits of the Claimant’s claims. That approach privileges the issue of time above any other consideration; it makes it determinative. There may be cases where the time limit issue has greater weight because that delay otherwise causes prejudice to the Respondent. That, however, is not (on the ET’s findings) this case. The erroneous approach adopted by the ET in this regard may also explain why its formal Judgment stated its conclusion as being to strike out the Claimant’s claims against the Second Respondent (as having been brought out of time), rather than allowing the Second Respondent’s application for a review of EJ Heap’s Order and/or refusing the Claimant’s application to 78. In my judgment, the ET’s conclusion on the application to amend thus cannot stand: it erroneously permitted the time limit issue to outweigh the injustice it had found would be suffered by the Claimant, who would be denied the ability to pursue otherwise legitimate (on the ET’s findings) complaints against the Second Respondent. I therefore allow the appeal.”b. Denton and others v. TH White Ltd (De Laval Ltd, Part 20 defendant) [2014] 1 WLR 3926. Mr Brockley accepted that this case was not an employment tribunal case, but submitted that it has relevance in relation to the overriding objective, given that has been effectively imported into this jurisdiction. Mr Brockley took me to paragraphs 39, 40, 42, 43 and 44: “39. Justifiable concern has been expressed by the legal profession about the satellite litigation and the non-cooperation between lawyers that Mitchell has generated. We believe that this has been caused by a failure to apply Mitchell correctly and in the manner now more fully explained above. 40. Litigation cannot be conducted efficiently and at proportionate cost without(a) fostering a culture of compliance with rules, practice directions and court orders, and(b) cooperation between the parties and their lawyers. This applies as much to litigation undertaken by litigants in person as it does to others. This was part of the foundation of the Jackson report. Nor should it be overlooked that CPR rule 1.3 provides that "the parties are required to help the court to further the overriding objective". Parties who opportunistically and unreasonably oppose applications for relief from sanctions take up court time and act in breach of this obligation. 42. It should be very much the exceptional case where a contested application for relief from sanctions is necessary. This is for two reasons: first because compliance should become the norm, rather than the exception as it was in the past, and secondly, because the parties should work together to make sure that, in all but the most serious cases, satellite litigation is avoided even where a breach has occurred. 43. The court will be more ready in the future to penalise opportunism. The duty of care owed by a legal representative to his client takes account of the fact that litigants are required to help the court to further the overriding objective. Representatives should bear this important obligation to the court in mind when considering whether to advise their clients to adopt an uncooperative attitude in unreasonably refusing to agree extensions of time and in unreasonably opposing applications for relief from sanctions. It is as unacceptable for a party to try to take advantage of a minor inadvertent error, as it is for rules, orders and practice directions to be breached in the first place. Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions. An order to pay the costs of the application under rule 3.9 may not always be sufficient. The court can, in an appropriate case, also record in its order that the opposition to the relief application was unreasonable conduct to be taken into account under CPR rule 44.11 when costs are dealt with at the end of the case. If the offending party ultimately wins, the court may make a substantial reduction in its costs recovery on grounds of conduct under rule 44.11. If the offending party ultimately loses, then its conduct may be a good reason to order it to pay indemnity costs. Such an order would free the winning party from the operation of CPR rule 3.18 in relation to its costs budget. 44. We should also make clear that the culture of compliance that the new rules are intended to promote requires that judges ensure that the directions that they give are realistic and achievable. It is no use imposing a tight timetable that can be seen at the outset to be unattainable. The court must have regard to the realities of litigation in making orders in the first place. Judges should also have in mind, when making directions, where the Rules provide for automatic sanctions in the case of default. Likewise, the parties should be aware of these consequences when they are agreeing directions. "Unless" orders should be reserved for situations in which they are truly required: these are usually so as to enable the litigation to proceed efficiently and at proportionate cost.”c. Chandhok and Chandhok v Tirkey [2014] UKEAT/0190/14. Mr Feeny explained the importance of the claim form and court documents, relying on this authority.[22]I was also handed a copy of Mowe Saha v Capita Plc [2018] UKEAT/0080/18. Of which I have also considered.[23]There are several different claims that can be read across the claim form, and applications to amend. These are unfair dismissal, whistleblowing, being subjected to a detriment on grounds related to trade union activities or membership, and equality act claims. Time limits for these claims are as follows:a. Unfair dismissal, s.111(2) Employment Rights Act 1996: an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal—(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.b. Whistleblowing, s.48(3) Employment Rights Act 1996: An employment tribunal shall not consider a complaint under this section unless it is presented— (a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.c. Being subjected to a detriment on grounds related to trade union activities or membership, s.147 of TULR(C)A 1992: An employment tribunal shall not consider a complaint under section 146 unless it is presented— (a) before the end of the period of three months beginning with the date of the act or failure to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both) the last of them , or (b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable.d. The Equality Act claims, s.123 Equality Act 2010: (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of- (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3)For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it.
Findings of fact
[24]I heard evidence from the claimant herself. I heard no other evidence. I was also assisted in this hearing by a bundle of 81 pages.[25]I make the following findings of fact, on the balance of probability based on all the matters I have seen, heard and read. In doing so, I do not repeat all the evidence, even where it is disputed, but confine my findings to those necessary to determine the issues in this case:a. The claimant was appointed a trade Union Representative at the end of 2011. Her area was to deal with Health and Safety matters.b. The claimant had some knowledge of disability discrimination. She gave evidence of her assisting a colleague have her status as disabled recognised by the respondent in the 1990’s.c. The claimant raised a grievance on 28 February 2017. On her grievance form she ticked the boxes indicating that her complaint was about discrimination, harassment, bullying and victimisation, and included matters relating to her disability. The claimant ticked these as she considered that the respondent was not acting in accordance with diversity and equality policy in relation to her case.d. In the grievance form, the claimant also ticked part 2, as they were discriminating against her and subjecting her to harassment.e. The claimant did get some legal advice before completing the first application to amend her claim form on 06 June 2019. This was on a very limited basis. This was only in the form of an initial consolation. Limited discussion of her claim took place. It was the claimant who completed this document.f. The claimant instructed solicitors from 05 July 2018.g. The claimant had instructed solicitors for a personal injury claim against the respondent in the past.h. The claimant decided not to seek advice at a date earlier than 05 July 2018 from the trade union, nor did she seek her trade union to arrange for her to see a solicitor before this date, as she considered that this may cause a conflict for a colleague. Although she was aware that this was possible.i. Before submitting the claim form, the claimant was aware that she had legal insurance cover and that she could use this to receive legal representation. However, she hoped that she could engage with the respondent to resolve the matter without resorting to the legal process.j. The claimant did not want to pay for legal advice unnecessarily.k. The Personal Injury claim brought against the respondent by the claimant was in September 2016. This claim was focussed on health and safety. There was no mention of the Equality Act 2010 in that claim. The claimant accepted this to be the case under cross examination. Conclusions and Decisions[26]Applying the guidance provided by Cocking, Selkent and the Presidential Guidance, as well as taking account of other case law I was taken to, my conclusions in relation to the various amendments were as follows:- (i) Application to amend dated 06 June 2019.[27]In effect this can be looked on in three groups: pleadings already contained in the original claim form (which includes the further explanation contained in the Further and Better Particulars), amendment that can considered as a relabelling of matters already pleaded, and amendments that went beyond relabelling.[28]The first application to amend is dated 06 June 2019. This is seen at pages 71 and 72 of the Bundle. On page 71 there are three rows, and on page 72 there are 5 rows. That makes up the first application to amend in its entirety.[29]In terms of claims being included in this application to amend, this does differ and introduce new types of claim when compared to the claim form. It introduces Equality Act 2010 claims, in the form of victimisation, harassment and a failure to make reasonable adjustments, and introduces detriment on grounds related to trade union membership and/or activities.[30]It was conceded by the respondent that reference to trade union detriment was merely a relabelling of facts that had already been pleaded. It was explained that no significant opposition to the inclusion of this by amendment was going to be made. However, this would still need to be determined.[31]Turning to the specific facts contained within this document, and consideration of whether they were already pleaded.[32]Starting on page 71 of the bundle, which is the first page of the first application to amend. In terms of the first two rows, the facts presented are contained within the initial claim form. Whereas, the facts in row three are only hinted towards in the claim form, but are expressed and developed in the Further and Better Particulars (in particular at pages 54 and 55 of the bundle).[33]Turning to page 72 of the bundle, which is the second page of the first application to amend. Row 1 is not pleaded in the claim form, however, it is expressed in the Further and Better Particulars (see p.53 (a), (g) and (h)). Row 2 is not in the initial claim form or the Further and Better Particulars; however, the respondent accepts that they had knowledge of the comments relating to a ‘Blue Badge’.[34]Rows 4-6 were accepted by the respondent as having been generally pleaded, and therefore were not an amendment.[35]Having considered all of this, I have four matters to resolve in relation to the first application to amend. That is whether to allow this amendment to include the new causes of action:a. Trade Union Detrimentb. Victimisationc. Harassmentd. Failure to make reasonable adjustments[36]There are some matters that are relevant to all of this application, rather than the individual parts of it. These include that the claimant was unrepresented at point of producing the further and better particulars, and for the drafting of this first application to amend. Although she did have a limited consultation in advance of this application to amend being made. And, the claimant did have the means to instruct a representative. However, chose not to do so.[37]I will deal with the trade union detriment first, before turning to the Equality Act 2010 claims of victimisation, harassment and the failure to make reasonable adjustments.[38]I am satisfied that the reference to Trade Union detriment is relabelling of facts already pleaded. These were matters that the respondent knew about from the original claim form. In accordance with Selkent, there is no need to take into account time limits when considering amendment by relabelling.[39]I am conscious that the application to amend was made in June 2019, some seven months after the original claim form. This is a significant period of time.[40]Overall therefore, having considered all the factors and the relevant hardship to the parties, and taking into account the overriding objective, this amendment is granted.[41]Turning to the Equality Act claims. It was accepted by the claimant that the Equality Act claims had not been pleaded in the original claim form. These claims were therefore a significant amendment which added to the basis of the existing claim. These amendments therefore fell into the second category outlined in the Presidential Guidance of being amendments which added a new claim entirely unconnected with the original claim, albeit I note that certain of the events asserted as giving rise to these claims had also been pleaded as part of the whistleblowing, Trade Union Detriment and unlawful deduction from wages claims. In my view, the tests to be applied to establish victimisation, harassment and failure to make reasonable adjustments are fundamentally different to the tests applied to the claims that are initially pleaded. However, the existence of the factual pleadings is a relevant manner in my balancing exercise.[42]Being a significant amendment, I am required to give some consideration as to the matter of time limits. In the context of the Equality Act claims, the test for extending time is whether it would be just and equitable to do so. In this regard I note that the claimant’s employment ended on 22 August 2018. And that the allegations are spread from as early as January 2014 up until August 2018. The application to add these claims are therefore brought significantly out of time, on any analysis.[43]However, as the allegations are fact sensitive as to what was the cause of the treatment complained of, and as there are likely to be questions over whether the allegations are isolated incidents are form part of a continuing act, the issue of time limits would be best considered at the final hearing. I therefore treat the time limit point as a neutral factor in this application to amend.[44]Furthermore, it is made clear in Selkent and Mist that an application to amend should not be refused solely because there has been a delay in making it, and there are no time limits for considering an application to amend. Of paramount consideration is the relative injustice or hardship involved in refusing or granting the application.[45]While there has been delay between the issue of the proceedings and the lodging of this application to amend, a significant factor in considering the timing of the application is that this litigation is not yet at a stage where a Final Hearing has started, and it is unlikely to do so for some time due to the pressures currently on listing. On that basis, I consider that it is unlikely that the respondents will be seriously prejudiced because of the timing of this application.[46]In many cases, after a passage of time, witnesses may be difficult to trace, although that is not put forward by Mr Feeny as a factor in these cases. Further, it is well recognised that any witnesses’ memory may have faded with the passage of time and become unreliable. To the extent that these difficulties affect the presentation of the respondents’ defence, I accept that they may introduce an element of unfairness into the proceedings. Despite this, I am not persuaded that the circumstances of this case are such that there is a substantial risk that justice cannot be done.[47]I have taken account of the fact that the respondent had knowledge that the claimant may be complaining about harassment, and treatment related to her disability. They had this knowledge through the grievance which she had raised.[48]I am also conscious that refusing the application to amend will cause prejudice to the claimant in that her case appears to be that she has been treated negatively for one reason or another. Refusing this application would impact upon the claimant’s case such that the reason behind her alleged negative treatment may not be resolved.[49]A further impact on the claimant should the amendment be refused is the impact on the available remedy should the claimant be successful, given that the equality act remedies would be determined on a different basis when compared to the other types of claim.[50]I recognise, of course, that there has been some prejudice to the respondent to date in that they have had to deal with these applications, and there will be further prejudice in that if the amendments are allowed they will have to defend this on-going litigation in an expanded form. This will bring with it an inevitable increase in costs.[51]However, in terms of factual investigation that the respondent will have to undertake to deal with these claims, the prejudice to the respondent is low given that the matters complained of form part of other complaints.[52]I do not consider that the amendments above would prolong the hearing in this case significantly.[53]On the whole, this amendment does not seek to change the basic argument that the claimant submitted in her original claim form, as expanded on in her Further and Better Particulars.[54]The part of this application to amend that relates to victimisation differs in one key respect. I consider it important with this part of the application to consider the additional factor of merit. That is because the claimant gave evidence and accepted that her personal injury claim was focussed on health and safety and was not concerned with Equality Act claims. The merit of this claim is therefore weak and balances against allowing this part of the claim to be included.[55]Accordingly, taking into account all of the circumstances under the Selkent test, the tribunal will grant the application to amend to include the claims of disability harassment and failure in the duty to make reasonable adjustments. Time limits in relation to these remains a live issue. However, the application to amend to include victimisation is refused.[56]However, for the avoidance of doubt, I make clear that this application to amend was granted by the narrowest of margins. (ii) Application to amend dated 25 November 2019[57]This is the second application to amend brought by the claimant. This sought to include further allegations under whistleblowing, further development of the claim for a failure in the duty to make reasonable adjustments, the disability harassment and the victimisation claims, an inclusion of a discrimination arising from disability claim, and a claim for automatic unfair dismissal. Again, each will be dealt with in turn.[58]Much of the same factors considered above in the 06 June 2019 application to amend were considered in evaluating this application to amend, and for the sake of brevity, I do not repeat those matters again here. But they include the knowledge the respondent had of the claimant’s complaints through her having raised a grievance, the impact on available remedies to the claimant, the impact of time on the availability and reliability of evidence, amongst others. However, there were also other matters not present in the 06 June 2019 application that were relevant to this application.[59]In advance of making this application to amend the claimant had sought, and received legal advice. The claimant instructed solicitors from 05 July 2019. Counsel was instructed to appear on the claimant’s behalf on 30 August 2019, which was the date of the first day of this Preliminary Hearing. This amendment was drafted on the claimant’s behalf by her legal advisor. There is a period of some 4 months between the claimant having instructed solicitors and this application to amend being made. This is a significant delay between getting legal representation and making this application. And this is a factor that goes against allowing any part of this amendment. I do not consider that this application to amend was made promptly.[60]The application was highlighted on 30 August 2019 by Mr Brockley as forthcoming; however, it was not sent until some 2- 2 ½ months after this. The timing of the application is considered as part of my balancing exercise in deciding whether to allow this amendment.[61]Unlike the first amendment, this application to amend includes amendments that are outside of the Equality Act, as it includes an extension to the whistleblowing claim and a claim of automatic unfair dismissal.[62]Considering the application to include further elements to the whistleblowing claim and the automatic unfair dismissal claim first. These clearly go beyond relabelling. These are significant amendments. Therefore, time limits are important.[63]The amendment relating to whistleblowing refers to qualifying disclosures relating back to early 2012- August 2018. All these claims are significantly out of time. Some more so than others.[64]Turning to the automatic unfair dismissal part of the amendment. The claimant was dismissed on 22 August 2018. This claim is also significantly out of time.[65]The test for extending time for both whistleblowing claims and unfair dismissals are very similar. They both require consideration of the same two-part test. First, as to whether it was not reasonably practicable to submit a claim within three months of the act or failure to act where the claim is whistleblowing, or within three months of the effective date of termination for the unfair dismissal claim. And secondly, where the first part of the test is accepted, then the second question relates to whether the claim was submitted within a reasonable period thereafter.[66]Having had legal advice since 05 July 2019. Considering the financial means of the claimant. Considering that the claimant was part of a trade union and could have sought advice through them. Considering the claimant’s knowledge of her home insurance policy. Considering that the claimant had brought a claim of whistleblowing in her initial claim so had some knowledge of it. In my decision, the claimant has not shown that it was not reasonably practicable for her to submit her claim(s) in time. Further, the delay between having legal advice and making this second application, I also consider that the application to amend was not brought within a reasonable period thereafter. The claimant does not satisfy either of the two parts of this test. This is a factor weighing heavily against allowing the amendment. Although, I remind myself of the warning in Selkent and Mist against placing too heavy a reliance on time limits, as noted above.[67]I have also considered the lack of detail in relation to the application to amend for the whistleblowing part of the amendment. The detriments lack detail. In particular, defects 1-5 and defect 10 are vaguely pleaded. These are not specific enough. This factor weighs against allowing these parts of the amendment.[68]Again, having considered all the circumstances of the Selkent test, in relation to amending to include both the additional aspects of the whistleblowing claim and the claim of unfair dismissal, this amendment is refused.[69]Turning to the part of this application that can be properly described as relating to the Equality Act claims.[70]The additional elements to the failure to make reasonable adjustments claim, the detail of the harassment claim, the inclusion of discrimination arising from disability and victimisation are all significant amendments.[71]The amendment relating to reasonable adjustments include matters that started as early as September 2013. However, each appear to be being brought as continuing acts up until the claimant’s dismissal. The final act in relation to each, at their latest could be 22 August 2018. Similarly, the harassment claims are relating to matters from 2012 up until the claimant’s dismissal. Whilst the discrimination arising from disability is focussed on absences pre-dismissal and the dismissal itself. These are significantly out of the 3 months’ time limit in which to submit a claim. In the context of Equality Act claims, the test for extending time is whether it would be just and equitable to do so.[72]However, as above, as the Equality Act allegations are fact sensitive as to what was the cause of the treatment complained of, and as there are likely to be questions over whether the allegations are isolated incidents are form part of a continuing act, and as I have not heard any evidence on this, the issue of time limits would be best considered at the final hearing, if the application was granted. I therefore treat the time limit point as a neutral factor in this application to amend.[73]There are parts of the Equality Act claims that form part of this application to amend that lack specificity for the purposes of being suitable for an amendment. These relate to all the dates provided for when conduct that form part of the harassment took place. And the fifth protected act (referring to diverse emails) that forms part of the victimisation claim. Requiring the respondent to undertake investigation into broad date ranges that these amendments would require, some time after the incidents, place an onerous hardship and injustice on the respondent.[74]I have taken into account of the impact on the claimant’s claims that refusing the amendment will have. In that there may be valid allegations that simply will not be considered.[75]These matters are also new factual matters, which will require new and extensive lines of enquiries.[76]Overall, having considered all the factors and the relevant hardship to the parties, I did not consider that it would be in furtherance of the overriding objective for me to grant these amendments[77]This amendment, dated 25 November 2019, is therefore refused in its entirety. Signed by:[78]The claimant began her employment with the respondent on 29 September 1980. The claimant worked with the respondent for approximately 38 years which was almost the whole of her working career.[79]During her time with the respondent the claimant undertook multiple roles including immigration officer at passport control. At the time she was dismissed the claimant was employed at Birmingham Airport working as a frontline border force officer and the majority of her duties involved working on passport control.[80]The claimant was also from 2011 a trade union representative for the Immigration Service Union (“ISU”). The claimant had some responsibility for health and safety matters both in her capacity as a trade union representative and also in her main role. The claimant made a broad allegation in her witness statement that her activity as a trade union representative brought her into conflict with management whenever she was required to “fight the corner” for her members. However we saw no evidence of such a conflict. We accept in general terms that part of being a trade union representative can involve challenging management but it does not follow to our mind that this inevitably leads to conflict in the way the claimant seemed to suggest.[81]The claimant has had problems with back pain for many years. She was required to take some sickness absence from work but the situation improved following spinal operations in 2011.[82]In 2012 the respondent ran recruitment campaigns to fill vacancies which were available to staff who wished to be promoted or transferred. One such campaign was for the position of Higher Officer (“HO”). That campaign attracted particular controversy.[83]The background to the HO recruitment was as follows. Initially two vacancies were advertised on 3 August 2012 but it was known that there would be a probable third vacancy arising during the campaign. Thirty two staff applied in total and three were not put through to sift as they were late applications. Nine applications then passed the sift stage and those candidates were put through to an assessment centre. In September 2012 the results of the assessment centre were received and only four staff had passed. Of those one candidate withdrew his application as he wished to pursue an alternative position.[84]The first round of interviews were held on the 21 September and four candidates were interviewed. The four candidates were the remaining three who had passed the assessment centre and one applicant who had applied for a transfer on a level basis. Of those four only one candidate passed the interview. As a result of the low number of passes Philip Holliday (Regional Director) made an application to the HR Director to interview any “near misses” (i.e. those who had narrowly failed the assessment centre stage). This application was granted.[85]A second round of interviews was then convened where a further five people were invited to interview. These were the near misses who had narrowly failed the assessment centre stage. As a result of those interviews two further candidates were offered and accepted positions. Those two people were Neil Broad and Deborah Brown. Deborah Brown is the wife of a senior manager within the respondent - Paul Harper. We understand that she continues to use her maiden name for professional purposes. There is no evidence that Paul Harper was involved in any way in the decision to promote Deborah Brown. There was no evidence put before us to support the claimant’s suggestion that she was promoted because of nepotism, rather than merit.[86]As we have said the recruitment process was controversial. The claimant, along with others from her union, raised concerns over the procedure that had been adopted and in particular the decision to appoint those who had not passed the assessment centre stage of the exercise (i.e. the near misses). As a result of those concerns Alex Lawther sent an email on 24 February 2013 explaining in some detail the process which had been adopted and the reasons for it. The purpose behind that email was to try and demonstrate to all staff that a fair and transparent process had been adopted.[87]The claimant’s alleged protected disclosure in this case concerned the recruitment process for the HO role. The claimant says that in early 2013 she approached Philip Holliday and raised concerns with him including specific concerns over this recruitment campaign. It is relatively clear from the contemporaneous evidence that the claimant did have some kind of discussion with Mr Holliday in early 2013. In particular in an email from the claimant dated 1 April 2013 she refers to what she described as a “little chat” that she had with Mr Holliday where she expressed serious concerns over the way the HO recruitment had been handled. However that document does not provide any information as to the detail of the discussion and neither does any other contemporaneous document.[88]It's clear from the claimant's description of the discussion as a “little chat” that this was an informal discussion and as it occurred in or around February 2013 it is not surprising that Mr Holliday now has no recollection of it at all. The claimant believes that as a result of her discussion with Mr Holliday Mr Lawther, who was another senior manager, was removed from his post and not allowed to return to his role at Birmingham Airport. This was speculation on the claimant’s part. The evidence which we heard on behalf of the respondent entirely satisfied us that Mr Lawther's move had absolutely nothing to do with any issue which was raised by the claimant. In fact we saw no evidence of any action at all being taken as a result of the matters raised by the claimant.[89]It is clear that the respondent was aware of the controversy generally over the HO recruitment exercise and the concerns raised by the trade union and it sought to address that through the email we have described above. But there's nothing to suggest that the “little chat” between the claimant and Mr Holliday had any particular effect. We concluded that whatever the claimant said to Mr Holliday at the time was not seen by him as particularly significant - probably because he was already aware of the trade union’s concerns anyway - and he therefore took no particular action on it. There is no evidence that what the claimant told Mr Holliday was passed on by him to anyone else.[90]On or around 22 September 2013 the claimant sustained an injury to her back at work. The claimant explained in her witness statement that this injury was sustained because she was removing a computer processor unit from under a cramped desk. A dispute arose over whether this should be classed as a work related injury or not. This was important because if the injury was classed as work related it meant that the claimant was entitled to up to six months injury absence on full pay. Such absence is not under the respondent's procedures recorded as normal sickness absence and is not counted towards unsatisfactory attendance warning trigger points. Trigger points initiate disciplinary action including dismissal under the respondent’s procedures.[91]The respondent effectively outsources the decision making over whether a member of staff has suffered a qualifying work related injury to Capita. We were not provided with the evidence of what was provided to Capita to make a decision in this case nor any evidence as to how Capita reached their decision. However it is clear that Capita concluded that the claimant had not in fact suffered a qualifying work related injury. Due to the lack of evidence we cannot be sure as to the reasons for that but it appears to have been relevant that there were no witnesses to the injury which had been suffered by the claimant and there was some doubt over whether she had been tasked with the job of moving the processor unit which was the action which caused the injury.[92]What is manifestly clear is that the claimant was greatly aggrieved by the Capita decision. She regarded herself as having being failed by Capita and also formed the view that the information provided to Capita by her managers must have been misleading. We are not in a position to say whether this is accurate or not because we have not been provided with any evidence as to what the claimant’s managers actually provided. However we have no doubt that the claimant’s sense of grievance over the Capita decision and the process leading up to it was and is fiercely held.[93]Unfortunately the injury to the claimant’s back caused her to have a significant amount of sickness absence. On 21 February 2016 the claimant was given a first written warning in respect of her attendance as a result of that absence. On 1 March 2016 the claimant appealed against that warning. On 29 April 2016 the claimant was sent the appeal outcome. The outcome was that the appeal was not upheld and the original decision to issue the claimant with a first written warning was confirmed. Notwithstanding that conclusion the appeal manager, Mr Terry, made a number of recommendations for the claimant’s line manager.[94]The rationale for Mr Terry’s decision was that as Capita had concluded that the injury was not a qualifying workplace injury there was no basis for the respondent to discount any absence. It can also be observed that under the respondent’s procedures even if the injury to the claimant had been classed as a qualifying workplace injury only a maximum of six months absence could be discounted. The reality was that the claimant had exceeded the triggers for a warning even if the full six months had been discounted.[95]Mr Terry did find that the respondent had failed to follow its procedures in one respect in that there had been an insufficient number of keeping in touch meetings. This was as a result of the claimant’s then line manager, Mr Broad, mistakenly applying the 2012 policy rather than the 2014 policy.[96]The claimant’s sickness absences continued and were at such a level that she was issued with a final written attendance warning on 5 September 2016. The claimant did not appeal against this warning.[97]By 2016 the claimant was also pursuing a personal injury (“PI”) claim against the respondent arising out of the injury which she had sustained at work in September 2013. The respondent had started to defend the proceedings by denying liability. Witness statements were then exchanged in November 2016. The respondent provided a witness statement from Jason Moore Read who had previously been involved in managing the claimant. The claimant was extremely upset to read the statement prepared by Mr. Moore Read. The claimant explained in her evidence before us that she believed the statement was full of lies and it made her feel physically and mentally sick.[98]The receipt of this paperwork obviously had an extremely negative effect on the claimant. She described herself in her statement as being in complete turmoil and total anguish. She said she was in tears and shaking. Even now over four years later she still finds the evidence to be most upsetting. It was clear to the Tribunal that much of the claimant’s continuing sense of grievance concerning the respondent arose from the accident at work and the denial that that was a qualifying workplace injury. This sense of grievance was greatly strengthened by the subsequent defence of the personal injury proceedings seemingly on the basis that the claimant was not acting in the course of her duties when she sustained the injury.[99]Having said that however once the respondent had sight of the claimant’s witness evidence in the PI claim it appears that they quickly changed their position and made the decision to admit liability. This resulted in the claimant’s personal injury claim being settled. This involved the payment of money to the claimant which compensated her for the losses associated with that injury, including the pay she had lost. Notwithstanding that outcome however it is clear that the claimant remains highly aggrieved and upset over the respondent’s conduct in relation to her injury and the initial response to her PI claim.[100]In February 2017 the claimant submitted a grievance to Paul Harper. The grievance outlined number of issues but it focused on complaining about the conduct of Jason Moore Read and it was clear that the claimant was most concerned about the evidence that he had given in relation to her workplace injury.[101]On 20 April 2017 a meeting was held with the claimant, her union representative and Mr Harper to discuss the claimant’s grievance. The meeting was also attended by a HR casework manager and a note taker. This was a fairly lengthy meeting at which the claimant outlined her concerns in detail.[102]Despite the claimant having initially been told that there would be an investigation into her grievance the respondent eventually wrote to the claimant on 20 March 2018 to inform her that they had concluded that the threshold for a grievance investigation had not been met (although somewhat confusingly the letter also recorded that there was no evidence of bullying, harassment, victimisation or discrimination).[103]The claimant went off sick in April 2017 with back pain and she did not return to work at any stage prior to her dismissal.[104]On 31 August 2017 the claimant’s union representative (who was also the general secretary of the claimant’s union at the time) wrote to the respondent to say that she had discussed the options with the claimant and it was unlikely that she would return to work. The email referred to the fact that ill health retirement may be considered as an option but given that the claimant was already on nil pay it was suggested that it would be unreasonable to seek to extend her employment for a further prolonged period.[105]This email makes it clear that the claimant had already given her union instructions that(a) her health would not improve to the point where she was able to sustain a return to work,(b) ill health retirement was a possible option, and(c) her employment should be brought to an end fairly promptly on capability grounds.[106]This position was consistent with a telephone interview which the claimant had with her line manager, John Leach, on 24 October 2017. In that interview Mr. Leach asked the claimant when she thought she might be able to return to her duties. The claimant’s response was that she had no idea and she referred to issues with her shoulder, spine and hip. Mr Leach also asked if there was any reasonable adjustments that he could make to get the claimant back to work. The claimant responded “no, not really”.[107]In June 2018 Craig Haynes was appointed to be the decision manager in the claimant’s case. He held a consideration of dismissal formal meeting with the claimant and her trade union representative on 22 August 2018. The claimant was now being dealt with under the continuous absence sections of the respondent’s attendance management procedure. That procedure requires that dismissal must be considered whenever long term sickness absence has been continuous for 12 months. By August 2018 the claimant had been continuously absent for 16 months.[108]Throughout the period of the claimant’s absence the respondent obtained advice and information from its occupational health provider.[109]The medical position appears to be accurately summarised in the occupational health physician’s letter dated 14 November 2017. The consultant was not able to identify any likely return and recorded:(i) The claimant was not functionally capable of returning to her full range of duties as described.(ii) The claimant would not benefit from any adjustments as she was not currently fit to return to her duties due to the right shoulder injury, and the right leg pain and back pain.(iii) There was evidence of stress at work but nothing recent as the claimant had been absent from work since May 2017.[110]In order to inform the occupational health provider’s views a detailed report was requested and obtained from the claimant’s consultant orthopaedic spinal surgeon. That report was dated 12 May 2018. It gave a comprehensive history of the claimant’s back pain. That history records that the claimant had returned to the consultant’s clinic in January 2014 following the accident at work. The claimant was treated with an injection and then a course of physiotherapy but the problems persisted. The claimant was eventually discharged from the consultant’s clinic in September 2014.[111]The claimant was then well until January 2015 when she again presented at the clinic. This pattern seems to be repeated in the following years.[112]It is fair to point out that the consultant records that subsequent to the injury in 2013 the triggers for the claimant’s deteriorating back pain had nothing to do with work. For example the consultant records that the claimant went on a 7 hour flight which was marred with extreme turbulence, she had then needed to climb into a people carrier and sleep in a hammock whilst on holiday. As a result of that the claimant again began to develop severe back and recurring leg pain. This was in 2015.[113]There was a further unfortunate non work related incident in 2017 whilst the claimant was off work. The claimant fell down some stairs and dragged her shoulder. This resulted in a new onset of back and leg pain.[114]Further, in March 2018 - again whilst the claimant was off work - she developed further pain after having twisted in bed to get a tissue as she had a cold and had sneezed.[115]The consultant’s view was therefore that the claimant had a number of episodes of back and leg pain all of which would affect and impact on her functionality at work. The consultant’s conclusion was that the claimant’s condition was developing to a degree of chronicity and that she would struggle to fulfil her role in her current capacity. The consultant was unable to advise as to whether there was a foreseeable endpoint to the claimant sickness absence.[116]This report informed the occupational health advice which was sent to the respondent on 16 May 2018. That advice was given by a consultant occupational physician within the respondent’s occupational health provider. Essentially the advice summarises the contents of the claimant’s treating consultant’s report and refers to her consultant’s conclusion as to the lack of a foreseeable end point. This was the up to date medical evidence on which the respondent made their decision to dismiss the claimant.[117]By this time the respondent had obtained the information from the pension provider as to the relevant figures if the claimant were to take ill health retirement and the forms which the claimant would be required to fill in if she wished to apply for it. There is a dispute however over whether these were sent to the claimant. On the balance of probabilities we have concluded that the information was sent to the claimant by her line manager John Leach. We reached this conclusion because the contemporaneous evidence is consistent with the information having been sent to the claimant. In particular there was an email of 16 August 2018 which records that the forms had been sent by Mr Leach a few weeks ago and that nothing had been received back despite Mr Leach chasing the claimant.[118]Mr Leach also wrote to Mark Gribbin (who was at that stage the claimant’s trade union representative) on 25 June 2018 and he referred to the fact that he had been trying to get the claimant to agree to a course of action as regards ill health retirement but it had been difficult to get a straight answer from the claimant.[119]In response to that Mr Gribbin wrote to Mr Leach to say that he had been working through the potential options in detail with the claimant. We considered that if the claimant and her union representative did not have the information about ill health retirement this would have been the ideal opportunity to say so. Moreover, it would not make sense for the union representative to say that he and the claimant were working through the options in detail if he did not have the information available.[120]Finally, the claimant’s union representative wrote to Mr Leach again on 16 July in which he set out the claimant’s position very clearly. What Mr Gribbin said was that he had discussed matters with the claimant and they both felt that ill health retirement was a protracted process and may well not succeed in her case. Again this strongly suggests that the claimant and her representative had the information in order to discuss and reach a position on the possibility of ill health retirement. It shows that the claimant had made the decision not to apply for ill health retirement.[121]Mr Gribbin went on to say that it was recognised that it was difficult for the respondent to sustain the claimant’s absence as there was no return to work foreseeable. Mr Gribbin explicitly said that the claimant acknowledged that the respondent would be justified in considering dismissal.[122]We should emphasise that under the civil service rules which were applicable to the claimant if she was dismissed for capability after such long service she could be entitled to a compensation payment. The claimant through her union made it clear that they believed that she should be entitled to a 100% compensation payment.[123]It is crystal clear to us that the claimant made a decision in conjunction with her trade union to focus on obtaining dismissal with 100% compensation rather than any other options such as ill health retirement or remaining employed in some capacity. In that context we consider it was accurate that Mr Haynes characterised the dismissal process as one that was being largely driven by the claimant and her union representative.[124]At the meeting on 22 August 2018 Mr Haynes asked a number of pertinent questions. Firstly in relation to ill health retirement Mr Haynes said that that had been explored and relevant paperwork had been sent to the claimant. Again the claimant did not say anything to indicate that she did not have the relevant paperwork. Mr Haynes asked the claimant if ill health retirement was something she wanted to consider and the claimant said it depends on the other options and the medical advice was vague and doesn't really state anything. The claimant’s union representative then said doctors are naturally cautious and this advice was particularly vague. He indicated that in those circumstances the claimant did not see ill health retirement as a viable option. This was again clear evidence that the claimant and her union had made the decision that they did not want to consider ill health retirement as an option.[125]Mr Haynes pointed out that there were other options surrounding a possible return to work and asked the claimant directly if she would consider that as an option. The claimant’s answer was that that would not be an option. The claimant was also asked if there was anything that the respondent could do to facilitate a return to work and she said that was not likely.[126]The claimant’s union representative said that her injuries were all connected and there was no end in sight. The claimant emphasised the point that there was no prospect of an improvement and her consultants were not sure of a time frame. She referred to her spinal injury as her disc having exploded and she recounted serious issues with her knee as well.[127]At the end of the meeting the claimant’s trade union representative explicitly said they did not want any return to work or other deployments as there was a level of vulnerability which could no longer be sustained. He again repeated that ill health retirement was not a viable option and so therefore they were looking at 100% compensation. Mr Haynes expressly asked the claimant if she agreed with that summary – that ill health retirement or return to work was not an option - and the claimant said that yes she agreed.[128]Plainly, the respondent cannot have been left in any doubt as to the claimant’s position at this meeting and the reality was that the claimant’s position made dismissal an inevitability.[129]On 24 August 2018 Mr Haynes wrote to the claimant to inform her of her dismissal on the basis that she was unable to return to work within a reasonable timescale. The letter also informed the claimant that she would be paid the 100% compensation payment which she had been seeking.[130]The claimant did not appeal the decision to dismiss her. This is consistent with the claimant’s decision to pursue dismissal with 100% compensation over any alternative option. In short, the claimant had achieved what she wanted in view of the circumstances around her health. Conclusions on the claims Whistleblowing[131]We consider first whether the claimant made a protected disclosure. We have to consider firstly whether the claimant disclosed information. This is not a straightforward matter because the claimant relies on one disclosure which she made to Mr Holliday in February 2013 orally in an informal “little chat”. The claimant withdrew the allegation that she had made a further disclosure in April 2014 concerning her injury at work.[132]Since the disclosure relied upon was nearly 6 years before the claim and over 8 years before the hearing it was unsurprising that Mr Holliday had no recollection at all of what may have taken place. We also found that the claimant has not been entirely clear about the precise nature of the alleged disclosure and there is very little contemporaneous evidence to assist us. No other witness was called who could speak to what the claimant may have said.[133]We concluded that the claimant did have a discussion with Phillip Holliday in early 2013 in which she raised concerns about the HO recruitment process. However it was difficult to determine exactly what the claimant conveyed on this topic, which is necessary to decide whether or not she made a protected disclosure.[134]We think the claimant’s contemporaneous description of the discussion as a “little chat” is accurate. It is likely to have been brief and lacking in detail. We do not think the chat had any particular impact and it was not seen by anybody at the time as significant. There is no evidence that the alleged disclosure was in any way controversial or that it caused any animosity towards the claimant or any problems for her. Put bluntly it was entirely inconsequential. As we have explained the claimant’s assumption that Mr Lawther was moved as a result of her raising her concerns was incorrect; we were entirely satisfied that he moved for unrelated reasons.[135]The claimant’s evidence in her witness statement is that she raised a concern about nepotism and she then explained that to Mr Holliday as follows: “A manager’s wife was promoted ahead of other, apparently, better qualified candidates – where the relationship between the parties appeared to have been concealed from him as she used her maiden name and not her married name, hence concealing their relationship from those – including [Mr Holliday] - signing off the promotion. That was the ‘Nepotism’ the staff were so unhappy about.”[136]However it was clear to the Tribunal that the claimant does not in fact have a clear recollection of the conversation with Mr Holliday. In her statement the claimant refers to further elaboration which she gave during her conversation with Mr Holliday which we felt was not consistent with the contemporaneous description of the conversation as a “little chat”. Moreover, the claimant referred to people walking past and saying “nice knowing you” and “don’t forget your p45”. The claimant alleges that this was being said because she would be compelled to resign as a result of raising matters with Mr Holliday and she explained that perception to him at the time. We found this evidence was exaggerated. If that had happened it is likely that Mr Holliday would have said something about it and remembered the conversation. This led us to consider that we could place little reliance on the claimant’s recollection of this informal discussion from many years ago.[137]We think it is more likely than not that the claimant had a short general conversation with Mr Holliday in which she quickly and without reference to any specific information mentioned concerns over the HO recruitment process. This is consistent with the description of the discussion as a “little chat” and the fact it had no particular effect. There were already concerns over the recruitment process generally (including from the claimant’s union) and that was why it was decided that Mr Lawther would send the email explaining the procedure adopted and the reasons for it. The email had not been sent because of the claimant’s “little chat” with Mr Holliday. We therefore concluded that in the claimant’s discussion with Mr Holliday she did not convey facts. We find the claimant did not disclose information during her discussion with Philip Holliday on or around February 2013.[138]Notwithstanding this finding we considered the other key questions relevant to whether the claimant made a qualifying disclosure.[139]As to the breach of a legal obligation the claimant relied on an alleged breach of the civil service code. It was not argued that the code does in fact create legal obligations but rather the claimant had a reasonable belief that it did. The claimant’s argument was that she reasonably believed that since the code included a requirement to act with integrity this meant the respondent had a legal obligation to do so, particularly with regard to the HO recruitment process.[140]We do not accept this argument. The claimant was a highly experienced immigration officer and an experienced representative in the specialist immigration union. There was absolutely no basis for her to believe that the code created legal obligations. There was no evidence put before us of anything which might suggest or imply that. There was not a case where there was a grey area over whether the code created legal obligations; rather there was no reason at all for the claimant to believe that it did particularly bearing in mind her experience and knowledge. The claimant did not in our judgement have a reasonable belief that the code created legal obligations. It follows that the claimant cannot have had a reasonable belief that the information disclosed tended to show a breach of a legal obligation.[141]Even if we had concluded in the claimant’s favour about the contents of the discussion and took her case at its highest the information disclosed was:a. That the claimant believed better candidates had not been recruited (although the claimant did not and has not identified those candidates).b. That one of the candidates appointed was the wife of a senior manager and she used her maiden name so that the appointing managers were unaware of her marriage. The claimant did not however name Deborah Brown and she did not suggest that Paul Harper was one of the appointing managers. There was and is no evidence that this was the case.[142]We find that the information which the claimant alleged to have disclosed could not give rise to a reasonable belief that the respondent breached the code by failing to act with integrity. Just because the claimant believed better candidates were not appointed does not meant there was a failure to act with integrity. A recruitment process will almost always involve an element of subjective assessment and a different view on who the best candidate is does not suggest a failure of integrity. The claimant did not substantiate the assertion that better candidates were available as she failed to identify them or explain how they were better qualified.[143]The fact that Deborah Brown chose to use her maiden name at work is not a matter which suggests anything underhand and the claimant’s apparent assumption that this was done to conceal her marriage simply does not follow. In the tribunal’s experience it is not uncommon for married women to continue to use their maiden name for work purposes and this does not suggest a lack of integrity. Moreover, the information the claimant claimed to have disclosed was that because of Deborah Brown continuing to use her maiden name the appointing managers were unaware of her marriage. This would indicate that there had not in fact been a failure to act with integrity through nepotism as the appointing managers would be unaware of the marriage and therefore they cannot have appointed for that reason. This further indicates that the claimant’s alleged belief of a failure to act with integrity cannot have been reasonably held.[144]For those reasons there is no basis on which we could possibly conclude that the claimant made a qualifying disclosure. We find that she did not.[145]In any event we saw absolutely no evidence that the alleged disclosure was a material factor for any of the subsequent treatment of the claimant. As we explained above it was simply a “little chat” which had no effect at all, i.e. it was inconsequential and not viewed by anyone as significant. The claimant referred to concerns about the recruitment process which Mr Holliday already knew were held by the union and which the respondent sought to address by Mr Lawther’ s email. The claimant did not discharge the initial burden of proof of showing that a ground or reason (that is more than trivial) for any detrimental treatment could have been the alleged disclosure. There was nothing to indicate that the alleged disclosure was a material factor in any of the respondent’s subsequent decisions.[146]There was therefore no basis on which we could possibly conclude that the claimant’s whistleblowing claims should succeed.[147]Accordingly all of the claimant’s whistleblowing claims fail and are dismissed. Trade union detriment[148]At all material times the Claimant was an elected representative and a member of a trade union (ISU). As we understand it her claim is that she was subjected to detriments for the sole or main purpose of deterring her from taking part in the activities of the ISU, the “activities” being making representations to the respondent on behalf of ISU members. We accept in general terms that the claimant would have carried out such activities as part of her role. However, there are no examples of the claimant raising matters on behalf of her members which caused friction or irritation amongst the respondent’s managers. Similarly there was no evidence of any organisational dislike or distrust of trade unions, their representatives or members. We would therefore entirely agree with the respondent’s submission that there was a complete lack of evidence to suggest that the claimant’s activities as a trade union representative made any difference to the way in which she was treated at work. Accordingly we found this claim to be highly speculative and it lacked any proper foundation.[149]Nevertheless the claimant claims that she was subjected to ten detriments for the sole or main purpose of deterring her from taking part in the activities of ISU from September 2013 up until the date of her dismissal. Our findings on those were as follows:149.1 There was insufficient evidence to find that the respondent had failed to record the fact that the claimant had suffered a workplace accident in circumstances where the respondent had admitted liability for the same in a civil court claim. It is unclear when and how the respondent was meant to have recorded this after the admission of liability. The respondent had not initially accepted that the claimant had a workplace accident but there was no evidence to suggest that was anything to do with trade union activities. It appeared to be because there were no witnesses to the accident and there was doubt over whether the claimant was carrying out an activity which she had been tasked to do.149.2 There was insufficient evidence to find that respondent caused an electronic file to be deleted in which details of the workplace accident had been retained. It was unclear how and when this was alleged to have taken place. Even if there had been a deletion there was no evidence to suggest that was anything to do with trade union activities.149.3 The respondent’s policy from September 2014 onwards meant that the claimant was not eligible to take paid disability leave in order to attend medical appointments and that is the most likely reason why she was not granted it. One allegation predates the 2014 policy that but is obviously hopelessly out of time. In any event there was no evidence to suggest that a failure to permit the claimant to take paid disability leave at any time had anything to do with trade union activities.149.4 We do not accept that the respondent failed to make the reasonable adjustments which should have been made by virtue of the claimant’s status as a disabled person within the meaning of the Equality Act 2010. The reality was that every time occupational health made recommendations for reasonable adjustments these were implemented. Given that we have found that we do not have jurisdiction to hear the reasonable adjustments claim we have not set out our findings on this in detail. Our essential conclusion is that there was no evidence to suggest that any of the failures alleged by the claimant relating to reasonable adjustments had anything at all to do with trade union activities.149.5 It is unclear when the claimant alleged that the respondent ignored her request to be referred for an occupational health review. Her statement referred to events in 2014 but during cross examination she appeared to refer to 2016. In 2016 occupational health refused to arrange a further appointment and so this was outside of the respondent’s control. In any event there was no evidence to suggest that any refusal was anything to do with trade union activities.149.6 The allegation that Mr Moore-Read was unsupportive of the claimant and encouraged other managers to treat the claimant similarly was vague and unparticularised. There was insufficient evidence to make a finding that Mr Moore Read had ever been unsupportive or encouraged others to be so. In any event there was no evidence to suggest that Mr Moore Read’s attitude to the claimant or his direction of others had anything at all to do with trade union activities.149.7 The claimant’s complaint that Mr Moore-Read made disparaging comments to her about her disability appears to relate to a conversation between the claimant and Mr Moore Read in 2012 when the claimant alleged that Mr Moore Read sought to prevent disabled employees using medium stay parking spaces. Mr Moore Read denies this conversation took place and the tribunal preferred his evidence. It struck the tribunal as particularly unlikely that as a disabled person himself Mr Moore Read would have taken such an approach. Moreover, the documentary evidence in the bundle shows that he implemented the parking whenever the claimant needed it and, far from complaining, the claimant was happy with the parking arrangements (for example see her comments to OH in November 2014). In any event even taking the claimant’s evidence at its highest there is nothing to suggest that Mr Moore Read’s comments had anything to do with trade union activities. Even on the claimant’s own case he was refusing access to all disabled employees not just the claimant.149.8 There is insufficient evidence for the Tribunal to make any findings as to what information the respondent provided to Capita or whether Capita recorded that the claimant’s workplace injuries were “self-inflicted”. All we can say is that there appears to have been understandable reasons (which had nothing to do with trade union activities) why the respondent did not immediately concede that they were responsible for the injury - the lack of any witnesses and the doubt over whether the claimant had been carrying out a task she had been instructed to do. There is no evidence to suggest that the information provided by the respondent or the Capita outcome had anything at all to do with trade union activities.149.9 The only meaningful instance which the Tribunal found of a failure to follow the respondent’s sickness absence policies and procedures in issuing warnings to the claimant and in her dismissal was when Mr Broad mistakenly applied the 2012 policy’s triggers for contact when it had been superseded by the 2014 policy. That was a mistake on his part which had nothing to do with trade union activities. There was also a delay in providing the dismissal outcome to the claimant but we were satisfied that the reason for that was because of the need to obtain authorisation for the 100% compensation payment. This too had nothing at all to do with trade union activities. Again even if the Tribunal had accepted there were other failures there was no evidence at all to suggest that they had anything to do with trade union activities.149.10 In light of our findings above the tribunal did not consider that the respondent refused to consider the claimant for ill-health retirement (“IHR”). In fact the evidence showed that the respondent was willing to consider IHR as an option but in the end the claimant confirmed through her trade union representative that she did not want to apply. In any event there is nothing to suggest that the respondent’s attitude around IHR had anything at all to do with trade union activities.[150]In relation to each allegation and generally the claimant failed to establish a prima facie case that any acts or deliberate failures to act could have been connected with the purpose of preventing or deterring or penalising her in relation to trade union activities.[151]The bottom line is that in respect of each alleged detriment there was no evidence at all that it was done for the sole or main purpose of preventing or deterring the claimant from being a member of an independent trade union or penalising her for so doing and/or preventing or deterring her from taking part in the activities of an independent trade union or penalising her for so doing and/or preventing or deterring her from making use of trade union services or penalising her for so doing. It therefore follows that all of the claimant’s claims for trade union detriment must fail.[152]In respect of the trade union detriment claimants predating the 3 August 2018 we find that we would find that we did not have jurisdiction to hear those. The claimant did not put forward a positive case on reasonable practicability and her evidence was that she did not want to bring a claim whilst still employed and was therefore waiting to see if she would be dismissed. As we found she is intelligent and articulate and she had, at the time, access to senior trade union representatives and solicitors. There was therefore no practical impediment to her bringing her complaints earlier, if she had so chosen. Unfair dismissal[153]The reason for the claimant’s dismissal was capability. She had been absent from work for 16 months and the medical advice (which the claimant agreed with) was clear and unambiguous that there was no foreseeable return to work date. This was what caused Mr Haynes to dismiss the claimant. For the avoidance of doubt we did not see any evidence that the dismissal or the process leading up to dismissal had anything to do with trade union activities or the claimant’s alleged disclosure to Mr Holliday.[154]By reference to our findings of fact above we conclude that the respondent had thorough and current medical advice at the time of dismissal. Importantly, the OH advice was up to date, comprehensive, and conclusive. The OH physician had obtained a long and detailed report from the claimant’s consultant and he had summarised that in his final report. The salient information from that report was that(a) the Claimant’s condition was becoming chronic,(b) she may well struggle to fulfil her role at work, and(c) there was no foreseeable return to work.[155]It is also clear from that report that the claimant’s ongoing absence was not work-related, for instance it documents setbacks due to falling and hurting her shoulder and twisting in bed. There were no indications of any reasonable adjustments which could possibly lead to the claimant returning to work.[156]We find that the respondent could not be expected to wait any longer for the claimant to return. There was simply nothing to indicate that a return was on the cards. It is relevant that in the dismissal hearing the claimant confirmed, via her trade union representative and in her own words, that she did not foresee a possible return to work.[157]As the claimant confirmed towards the conclusion of the hearing with Mr Haynes, dismissal was in fact the only conclusion reasonably open to him. This was the message consistently represented to Mr Haynes during the hearing and in communication beforehand by or on behalf of the claimant. The respondent properly consulted with the claimant and obtained her clear and concluded view.[158]In respect of IHR, the respondent took reasonable steps to ensure that it was considered and the claimant and her union were given a reasonable opportunity to comment on it. The reality was that the claimant and her union confirmed that she did not wish to apply for IHR. That was the claimant’s own decision.[159]Despite the claimant’s assertions to the contrary, the respondent had followed its policy for considering dismissal in cases of continuous absence. A statement from Mr Leach was provided and HR produced a case analysis for Mr Haynes. We did not identify any procedural flaw which may have caused unfairness (the delay in providing the outcome was not in our view meaningful and it did not cause any unfairness).[160]The claimant was also given a right of appeal. Although she now complains about the proposed appeal officer, this was not something she raised at the time. If she had concerns over his impartiality, she could have requested another manager hear the appeal. We found that the plain and obvious reason why the claimant did not appeal her dismissal was because she had reached the view that dismissal with full compensation was the best possible outcome for her at that stage.[161]In view of the above our conclusion is that Mr Haynes acted within the range of reasonable responses on the evidence and information available to him. The claimant’s dismissal was fair. Unauthorised deduction from wages/Breach of contract[162]The claimant relies on two different alleged contractual entitlements –(a) disability leave and(b) sick pay at pension rate (“SPPR”).[163]We do not see how we can possibly have jurisdiction to hear the first complaint. The last alleged date of non-payment was 17 August 2016 and the claim was therefore brought substantially more than three months after the last alleged deduction and, as we have explained in other contexts, there was no impediment or reason why the claimant could not have brought her claims earlier. It follows from our other findings that it was plainly reasonably practicable for the claim to have been brought in time. Furthermore, in settling her personal injury claim the claimant compromised all claims for lost wages up to March 2017. Accordingly, there was no claim for underpayment outstanding upon dismissal.[164]In any event, we concluded that the claim must fail on the merits. As we have explained there was no contractual entitlement to paid disability leave in order to attend medical appointments from 2014. Therefore, the claimant’s interpretation of disability leave did not exist at the material time. If the claimant elected to take holiday to attend appointments then there is no contractual entitlement to claim this back as unpaid wages.[165]In respect of SPPR, the claimant placed reliance on an email sent by Naylha Kusar of the respondent’s HR support on 1 November 2017. This email suggested that SPPR should be paid whilst the respondent was making a decision as no one can be left without payment. However, it is clear that insofar as this constituted advice from the Respondent’s HR department, it was the wrong advice. It is clear that under the terms of the policy the claimant was not entitled to SPPR because there was no OH advice to the effect that there was a reasonable prospect of her returning to work in the near future.[166]The claimant was not therefore contractually entitled to SPPR or paid disability leave and her claims about those must also fail and be dismissed. Employment Judge Meichen 22 July 2021 APPENDIX – THE AGREED LIABILITY ISSUES
Introduction
[1]Time limits1.1 Given the date the claim form was presented, the dates of early conciliation, and the date on which permission to amend was given, any complaint about something that happened before 3 August 2018 and/or all complaints of trade union detriment and/or under the Equality Act 2010 may not have been brought in time.1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?1.3 Were the unauthorised deductions and/or public interest disclosure detriment and/or trade union detriment claims made within the time limits in sections 23 and/or 48 of the Employment Rights Act 1996 and/or s.147 Trade Union & Labour Relations (Consolidation) Act 1992? The Tribunal will decide:1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of the wages from which the deduction was made and/or the act or failure to which the complaint relates?1.3.2 If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?1.3.3 If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?1.3.4 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?1.3.5 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?[2]Disability 2.1 It is agreed that the claimant had a disability as defined in section 6 of the Equality Act 2010 from September 2013 by reason of back / spinal pain.[3]Reasonable Adjustments (Equality Act 2010 sections 20 & 21)3.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?3.2 A “PCP” is a provision, criterion or practice. Did the respondent apply the following PCPs:3.2.1 A requirement that an employee do not take paid disability leave in order to attend medical appointments (contrary to the respondent’s written policy) which the claimant says was applied to her on the following dates: 13 November 2013, 22 October 2014, 9 April 2015, 22 April 2015, 13 May 2015, 4 June 2015, 5 February 2016, 7 April 2016, 22 April 2016, 17 August 2016.3.2.2 A failure to implement reasonable adjustments identified in the various Occupational Health and /or Doctor’s reports commissioned by the respondent on the following dates: 8 July 2014, 10 November 2014, 22 January 2015 (and ensuing doctor’s report dated 26 January 2015), 11 August 2017, 9 November 2017, 20 March 2018,16 May 2018.3.2.3 A failure by Mr Moore-Read, Mr Broad and Mr Stillgoe to acknowledge disability unless the same were obvious (such as the instance where an employee had a prosthetic limb as in the case of Mr Moore-Read) as manifest on the following occasions:3.2.4 Failed to abide by its own procedures in relation to sickness absence, specifically, imposing inappropriate warnings on the following occasions(a) In or about mid-2012 Mr Moore-Read suggested that the claimant herself was not disabled and commented that she was not a blue badge holder(b) Mr Neal Broad shouted at the claimant concerning the claimant’s arranging of a medical appointment in such threatening terms that the respondent’s Assistant Director, Ms Denise Heaney, was required to intervene to seek to manage the verbal exchange.(c) Mr Broad arranged for the claimant to be required to conduct three complex interviews over three consecutive shifts. The claimant explained to him after the conclusion of the first interview that she felt unable to continue with the others and Mr Broad stated that he “did not care” and that the claimant should proceed to complete the remaining interviews. This occurred on or about the 17th or 18th of December 2014.(d) Mr Broad allocated a particular case to the claimant concerning a Chinese national who was alleged to have arrived whilst suffering with tuberculosis. The claimant avers that Mr Broad’s treatment of her was intended to demean her in front of another colleague. Mr Broad required the claimant to cite the relevant protocols and paragraphs of the relevant primary legislation in the expectation that she would not be able to do so (and, therefore, to cause her embarrassment and unease whilst another colleague was present). This occurred on a date after December 2014.(e) Mr Broad failed to record a sickness absence correctly which the claimant raised with the respondent’s Human Resources department and which the claimant was then required to raise with Mr Broad in order to ensure that she was fully paid during the relevant period. The claimant’s request for rectification of the error was met by Mr broad stating that he “didn’t care” and would attend to it when he “got round to it” and that, instead, he would prioritise his own claim. This occurred in or about September 2016.(f) Mr Broad, again, failed to record the claimant’s sickness absence correctly and the claimant was not paid for the period to the end of October 2014.(g) Mr Broad approached the claimant rather too closely and, whilst displaying a hostile demeanour, stated to the claimant that she was using crutches to make Mr Broad feel guilty. This was done in the presence of some of the claimant’s colleagues. This statement was made, the claimant believes, to threaten her and to show that she was subordinate to Mr Broad (and that he, by virtue of his position, was permitted to behave in such a way.) This occurred in or about August 2014.3.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that (in the same order and in relation to each of the PCPs above individually):3.3.1 She exhausted her Holliday entitlement for the purpose of attending medical appointments which she might otherwise have allocated to Holliday ‘proper’ and/or she did not benefit from the additional aspect of the absence management procedure which would have applied had the leave been classified as disability leave?3.3.2 The application of any reasonable adjustment may have influenced the way in which the respondent saw the claimant fulfil her contractual role and her ability to do so, in spite of her disability, which, therefore, made her more liable to dismissal?3.3.3 Because she did not have a visible disability, Mr Moore-Read (and other managers) were critical of her ability to perform in her role, without a valid reason. This led to a greater likelihood that the comments such as those attributed (by the claimant to Mr Moore-Read) would be made towards the claimant.3.3.4 The claimant’s disabling conditions led to a higher likelihood that she would be absent by reason of ill health which, when taken with the failure to abide by the sickness absence policy, made her dismissal more likely.3.4 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?3.5 What steps could have been taken to avoid the disadvantage? The claimant suggests the following, again in the same order and in respect of each of the PCPs above individually:3.5.1 (a) permitted the claimant to take paid disability leave in order to attend medical appointments and/or (b) permitted the claimant to accrue time off when attending medical appointments3.5.2 See paragraph 3.2.2 above.3.5.3 (a) a method of working whereby the claimant was not required to encounter Mr Moore-Read and/or (b) an acknowledgement of the claimant’s disability and an open mind to making the adjustments recommended and/or (c) moved the claimant to an alternative location (d) afforded the claimant autonomy in the discharge of her contractual duties (e) applied the adjustments in 3.2.2 / 3.5.2 above (f) permitted the claimant a parking space as close to her place of work as feasible.3.5.4 (a) Disregarded any absence related to the claimant’s disability and /or (b) reviewed or modified the trigger dates which might lead to the implementation of the respondent’s absence management procedure.3.6 Was it reasonable for the respondent to have to take those steps and when?3.7 Did the respondent fail to take those steps?[4]Harassment related to Disability (Equality Act 2010 section 26)4.1 Did the respondent do the following things:4.1.1 Mr Moore-Read was unsupportive and hostile to the claimant and encouraged other managers to act similarly towards her, specifically,4.1.2 Mr Moore-Read stated to the claimant that she was not properly disabled4.1.3 Mr Moore-Read stated to the claimant that she did not have a blue badge and that no statutory reasonable adjustments were required to be made for her4.1.4 Failed to follow its own sickness absence policies and procedures in issuing warnings (such as an attendance warning) to the claimant and in her dismissal4.1.5 Refused to consider the claimant for ill-health retirement4.1.6 Failed to investigate the claimant’s grievance about Mr Moore-Read read in a timely fashion or at all and failed to refer Mr Moore-Read’s conduct for consideration by the professional standards unit4.1.7 Dismissed the claimant(a) He set the claimant tasks which she was expected to fail to complete, such as improving the health and safety audit score which the respondent received in Birmingham airport;(b) The claimant was routinely challenged by Mr Moore-Read in particular in relation to a failure to discharge the health and safety role with which Mr Moore-Read was charged and which he, expressly or impliedly, delegated to the claimant. The claimant avers that Mr Moore-Read behaved in this way, not only to demonstrate that he was able to exert control over the claimant (beyond that ordinarily associated with the role between a manager and a subordinate employee), but to place the claimant in a position of conflict in the discharge of her duties as a trade union representative;(c) The claimant was required to take on the role of locally nominated health and safety officer when she did not have the capacity within her working week to do so, without feeling subject to unnecessary stress and or pressure;(d) Mr Moore-Read sought to take credit for the industry of the claimant such as to minimise or demean her achievements such as in the improvement in safety audit score (which rose from about 20% to 80% after the claimant took on this responsibility);(e) Mr Moore-Read had cause to engage with the claimant in relation to the disabled status of various of the respondent’s employees, who in some cases did not have a parent physical disabilities which were capable of being improved by the fitment of prosthetic limbs, and Mr Moore-Read failed to take the complaints made by the claimant, on behalf of these individuals, seriously and, as a direct act of bullying and or in retaliation to the raising of such complaints, Mr Moore-Read sought to deny the claimant’s disabled status by suggesting that she, herself, was not disabled and commenting that she was not a blue badge holder;(f) Mr Moore-Read refused to sign the necessary form of consent which was required to permit the claimant to park in parking spaces located closer to Birmingham airport and his justification for so doing was that the claimant was not possessed of a blue badge;(g) When the claimant repeated her request for use of the closer parking spaces to other managers, Mr Moore-Read ensured that such requests were relayed to himself once more and the requests were, again, refused;(h) As a result of the claimant’s pursuance of a civil court claim for personal injury against the respondent, Mr Moore-Read gave a statement, the contents of which the claimant objected to, by way of a formal grievance. This grievance did not proceed to a formal investigation and Mr Moore-Read perceived this to be a personal victory which he made clear to the claimant by attending at her office too frequently, in order to emphasise the fact that the claimant’s grievance against him had not proceeded4.2 If so, was that unwanted conduct?4.3 Did it relate to disability?4.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?4.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.[5]Protected disclosure5.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:5.1.1 What did the claimant say or write? When? To whom? The claimant says she made disclosures on these occasions:5.1.1.1 Verbally, between late April 2013 and June 2013 to the respondent’s Regional Director, Mr Philip Holliday, that she was concerned the respondent was acting inappropriately in permitting the professional advancement of certain employees who were less well qualified than other candidates (such as the promotion of a manager’s wife);5.1.1.2 Verbally, in or about April 2014 to the respondent’s HR department that a shared file on the IT system containing evidence about her injury at work had been deleted.5.1.2 Did she disclose information?5.1.3 Did she believe the disclosure of information was made in the public interest?5.1.4 Was that belief reasonable?5.1.5 Did she believe it tended to show that:5.1.5.1 In respect of 5.1.1.1, that a person had failed, was failing or was likely to fail to comply with any legal obligation;5.1.5.2 In respect of 5.1.1.2, that5.1.6 Was that belief reasonable?(i) a person had failed, was failing or was likely to fail to comply with any legal obligation and/or(ii) the health or safety of any individual had been, was being or was likely to be endangered and/or(iii) information tending to show any of these things had been, was being or was likely to be deliberately concealed?5.2 If the claimant made a qualifying disclosure, it was a protected disclosure because it was made to the claimant’s employer.[6]Protected Disclosure Detriment (Employment Rights Act 1996 section 48)6.1 Did the respondent do the following things from in or about September 2013 up until the date of the claimant’s dismissal:6.1.1 From 2014 Mr Jason Moore-Read subjected the claimant to bullying treatment, specifically, that set out as disability-related harassment in paragraph 4.1.1 above.6.1.2 Bullying treatment by other managers who observed Mr Moore-Read’s direction that the claimant should be bullied from about 2014, specifically:6.1.3 Caused an electronic file to be deleted upon which details of the claimant’s workplace accident had been retained.6.1.4 Failed to permit the claimant to take paid disability leave.6.1.5 Failed to make reasonable adjustments which should’ve been made by virtue of the claimant’s status as a disabled person within the meaning of the Equality Act 2010 as set out in section 3 above.6.1.6 Ignored the request made by the claimant that she be referred for an occupational health review.6.1.7 Mr Jason Moore-Read made disparaging comments to the claimant about her disability including the assertion that she was not disabled as she did not have a blue badge.6.1.8 Caused, permitted or suffered a third-party organisation, namely Capita, to record that the claimant’s workplace injuries were self-inflicted6.1.9 Failed to follow its own sickness absence policies and procedures in issuing warnings (such as an attendance warning) to the claimant and in her dismissal6.1.10 Refused to consider the claimant for ill-health retirement?(a) Mr Neal Broad shouted at the claimant concerning the claimant’s arranging of a medical appointment in such threatening terms that the respondent’s Assistant Director, Ms Denise Heaney, was required to intervene to seek to manage the verbal exchange.(b) Mr Broad arranged for the claimant to be required to conduct three complex interviews over three consecutive shifts. The claimant explained to him after the conclusion of the first interview that she felt unable to continue with the others and Mr Broad stated that he “did not care” and that the claimant should proceed to complete the remaining interviews. This occurred on or about the 17th or 18th of December 2014.(c) Mr Broad allocated a particular case to the claimant concerning a Chinese national who was alleged to have arrived whilst suffering with tuberculosis. The claimant avers that Mr Broad’s treatment of her was intended to demean her in front of another colleague. Mr Broad required the claimant to cite the relevant protocols and paragraphs of the relevant primary legislation in the expectation that she would not be able to do so (and, therefore, to cause her embarrassment and unease whilst another colleague was present). This occurred on a date after December 2014.(d) Mr Broad failed to record a sickness absence correctly which the claimant raised with the respondent’s Human Resources department and which the claimant was then required to raise with Mr Broad in order to ensure that she was fully paid during the relevant period. The claimant’s request for rectification of the error was met by Mr broad stating that he “didn’t care” and would attend to it when he “got round to it” and that, instead, he would prioritise his own claim. This occurred in or about September 2016.(e) Mr Broad, again, failed to record the claimant’s sickness absence correctly and the claimant was not paid for the period to the end of October 2014.(f) Mr Broad approached the claimant rather too closely and, whilst displaying a hostile demeanour, stated to the claimant that she was using crutches to make Mr Broad feel guilty. This was done in the presence of some of the claimant’s colleagues. This statement was made, the claimant believes, to threaten her and to show that she was subordinate to Mr Broad (and that he, by virtue of his position, was permitted to behave in such a way.) This occurred in or about August 2014.(g) Mr Delvier Athwal took credit for having prepared a health and safety report which he had been charged to work upon with the claimant. The claimant had, in fact, undertaken all of the work and the meeting to discuss the report was convened at a time when Mr Athwal expected the claimant to be absent. The claimant believes that this behaviour was intended to demean her and to make her contribution to appear to be of no value. This occurred in or about the middle of 2016.6.2 By doing so, did it subject the claimant to detriment?6.3 If so, was it done on the ground that she made a protected disclosure?[7]Trade Union Detriment (Trade Union & Labour Relations (Consolidation) Act 1992 s.146)7.1 Was the claimant a member of a trade union, if so, which one?7.2 Did the claimant undertake activities relating to the trade union of which he was a member, or any other?7.3 Did the respondent do the following things from in or about September 2013 up until the date of the claimant’s dismissal:7.3.1 Failed to record the fact that the claimant had suffered a workplace accident in circumstances in which the respondent had admitted liability for the same in a civil court claim7.3.2 Caused an electronic file to be deleted in which details of the said workplace accident had been retained7.3.3 Failed to permit the claimant to take paid disability leave7.3.4 Failed to make the reasonable adjustments which should’ve been made by virtue of the claimant’s status as a disabled person within the meaning of the Equality Act 2010 as set out in section 3 above7.3.5 Ignored the request made by the claimant that she be referred for an occupational health review7.3.6 Mr Jason Moore-Read was unsupportive of the claimant and encouraged other managers to treat the claimant similarly7.3.7 Mr Jason Moore-Read made disparaging comments to the claimant about her disability7.3.8 Caused, permitted or suffered a third party organisation, namely Capita to record that the claimant’s workplace injuries were self-inflicted7.3.9 Failed to follow its own sickness absence policies and procedures in issuing warnings brackets such as an attendance warning) to the claimant and in her dismissal7.3.10 Refused to consider the claimant for ill-health retirement?7.4 If so, was it done for the sole or main purpose of preventing or deterring the claimant from being a member of an independent trade union or penalising her for so doing and/or preventing or deterring her from taking part in the activities of an independent trade union or penalising her for so doing and/or preventing or deterring her from making use of trade union services or penalising her for so doing?[8]Unfair dismissal8.1 It being agreed that the claimant dismissed, what was the reason or principal reason for dismissal? The respondent says the reason was capability (long term absence).8.2 If the reason was capability, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:8.2.1 The respondent genuinely believed the claimant was no longer capable of performing their duties;8.2.2 The respondent adequately consulted the claimant;8.2.3 The respondent carried out a reasonable investigation, including finding out about the up-to-date medical position;8.2.4 Whether the respondent could reasonably be expected to wait longer before dismissing the claimant;8.2.5 Dismissal was within the range of reasonable responses.[9]Unauthorised deductions9.1 Did the respondent make unauthorised deductions from the claimant’s wages by9.1.1 failing to permit the claimant to take paid disability leave on the instances set out in 3.2.1 above9.1.2 failing to pay the claimant sick pay at pension rate for the period May 2017 until 22 August 2018 which she was entitled to because her case was under active consideration9.2 If so, how much was deducted?[10]Breach of Contract10.1 Did this claim arise or was it outstanding when the claimant’s employment ended?10.2 Did the respondent do that set out in9.1.1 or9.1.2 above?10.3 Was that a breach of contract?10.4 How much should the claimant be awarded as damages?