Ms B Skwarczynska v Sturts Community Trust: 1400540/2019

EMPLOYMENT TRIBUNALS

Case No 1400540/2019

Between

Ms B SkwarczynskaClaimant

Sturts Community TrustRespondent

Before

Employment Judge Dawson, Mr Spry-Shute, Mr Bompass

Representing herself for claimant

Mr Allsop (instructed by counsel) for respondent

Date 12 October 2021

JUDGMENT

[1]The claimant was subjected to a detriment on the ground that she had made a protected disclosure in that the respondent failed to conduct an investigatory stage during the disciplinary proceedings against her. Unanimously, the decision of the tribunal is:

[2]Save as set out in paragraph 1 the claimant’s claims that she was subject to a detriment on the grounds of having made a protected disclosure are dismissed.

[3]The claimant’s claim of unfair dismissal is dismissed.

[4]The claimant’s claim of indirect discrimination succeeds.

[5]No financial penalty order is made.

[6]The case will be listed for a remedy hearing.

REASONS

[1]By a claim form which was presented to the employment tribunal on 17 February 2019, the claimant presented claims of unfair dismissal and for interim relief, discrimination on the grounds of race, non-payment of holiday pay, detriments following whistleblowing and “public interest disclosure”.

[2]The claim form itself was relatively succinct and asserted that the claimant had raised concerns regarding recurring injuries of a service user “J”, who was under her care. She stated that her reports had also related to the way J’s parents treated him in her presence. She set out some detriments to which, she said, she had been subject as a result, culminating in her dismissal. She stated that she expected to receive the maximum amount of compensation foreseen by the law. The claim of discrimination on the grounds of nationality was somewhat less clear.

[3]The claimant had sought interim relief and that application matter was heard by Employment Judge Wright on 7 March 2019. The application was dismissed and the claimant was ordered to provide further information.

[4]The matter then came before Employment Judge Salter on 7 October 2019 where he was able to list the issues between the parties in so far as they related to time and whether or not the claimant had made a protected disclosure. He also listed some detriments which were alleged to flow from the disclosures and the issues in relation to the claim of unfair dismissal. Finally, he listed the issues in respect of the claim under the Equality Act 2010 and the claim for financial penalty. He then ordered further information to be provided in relation to additional acts of detriment arising from “whistleblowing”. The claim under the Working Time Regulations was dismissed on withdrawal. The parties were given 14 days to write to the tribunal if the issues as recorded by Judge Salter were incorrect.

[5]By letter dated 28 October 2019 the claimant sought some adjustments to the list of issues. In respect of paragraph 19(a)(i) of the case management order, the claimant said the reference to “verbal and written report" should be "verbal and written reports", she also referred to, what she said were, inaccuracies in relation to paragraphs 19(a)(ii), 19(a)(iii), 20(a)(iii), (iv) and (v). Those inaccuracies largely related to providing further information as to why it was said the processes were unfair.

[6]Judge Salter replied to state that there was no need to amend the case management order because the fairness of the various processes complained of would be looked at by the tribunal when assessing what the reasons for the processes were.

[7]The claimant then provided a large document, extending to in excess of 30 pages relating to the public interest disclosures and a document entitled “Case Management”.

[8]The matter then came before Employment Judge Reed, on 23 January 2020 who went through the issues again, requiring the claimant to identify the disclosures that she said amounted to whistleblowing detriments and he recorded some 31 acts of detriment. Judge Reed recorded that was an exhaustive list of the detriments that the claimant said that she was subjected to

[9]The parties had also produced a schedule of disclosures and detriments, which appears at page 78 of the bundle. We were told by Mr Allsop that the table was initially produced by the respondent and then the claimant completed it. The claimant was unable to confirm to us whether she agreed with that schedule or not and so we have not relied upon it.

[10]As set out below there were then 2 subsequent case management hearings.

[11]Shortly before the final hearing an issue arose as to adjournment. It had been thought that there may be insufficient judges to hear the case. There was some correspondence which may have indicated that the claimant was seeking to adjourn the hearing on the grounds of ill-health but at the outset of the final hearing the claimant confirmed that she was not making that application. The claimant referred to feeling ill, again, during the hearing but said that she did not wish the matter to be adjourned but wanted to finish the hearing.

The issues

[12]At the outset of this hearing the judge discussed the issues with the parties1.

[13]As stated, the case has been the subject of four case management hearings due to some procedural difficulties and a desire to ensure that the issues were clearly defined. As also set out, the issues were defined over two hearings, firstly before Employment Judge Salter and secondly before Employment Judge Reed. At a subsequent hearing before Employment Judge Gray in July 2020 it was confirmed that the issues identified by those judges remained accurate and they were reiterated in the order of Employment Judge Livesey in August 2021. Neither party asked us to vary the list of issues and in those circumstances we have followed it.

[14]When we give our conclusions we will refer to the paragraph numbers as they appear in the Case Management Summaries sent following those hearings. 1 Because of requirements of social distancing and lack of large hearing rooms in the Southampton Tribunal centre, on the first day it was not possible to accommodate all parties and the whole panel in a single room. In those circumstances, prior to hearing any evidence, the judge dealt with case management matters alone with the parties. Thereafter the judge always sat with the members when hearing the case. The Evidence we Heard and Applications made During

the Hearing

[15]We were provided with a file for the hearing which was stated to be a joint bundle and which ran to 834 numbered pages but with numerous additions of pages labelled as “a”, “b” etc. We were also provided, by the claimant, with an additional bundle at the start of the hearing, running to 98 pages including her witness statements. We received that bundle without objection from the respondent. Reference to page numbers below are to the larger file, unless we state otherwise.

[16]For the claimant we heard from herself and Mr Jakowski. The claimant’s own witness statement ran to 44 pages and Mr Jakowski’s to a further 4 ½ pages of single-spaced type. She also sought to rely upon a statement from Mr Johnson. A limit of 18,000 words had been given in respect of the claimant’s evidence and her witness.

[17]For the respondent we heard from Mr Woodward – Chief Executive, Ms DarbyJenkins- trustee and HR professional, Ms McIntosh- Service Manager, Ms Geddes- at the time a solicitor with Lester Aldridge who heard the grievance appeal, Mr Doran – Social Enterprise Manager, Mr Saunders – Occupational Therapist attached to the Adult Learning Disabilities Team in Christchurch and the East Dorset Community Learning Disabilities Team, Ms Greaves- Personal Assistant to Tim Woodward (at the relevant times), Ms West – Administrator, Ms Hart – Practice Manager and Ms Westerman – independent HR Consultant who conducted the disciplinary hearing. The tribunal had been told that the respondent’s witnesses ran to 26,844 words.

[18]The respondent also sought to rely upon a witness statement from Ms Doyle who it said could not attend due to a diagnosis of Alzheimer’s Dementia.

[19]We noted, having read the claimant’s witness statement, that she wished to ask the tribunal to listen to tape recordings. It was agreed that would happen by way of the claimant playing the recordings to the respondent’s witnesses during cross examination. We explained to the claimant the need to provide the facilities to do so. We also explained that the timetable required any such playing to be completed within the same time limits as cross-examination.

[20]At the start of the 3rd day’s evidence, we were told that, overnight, the claimant had sent a bundle of approximately 300 pages to the respondent and she sought to adduce that evidence before the tribunal. She indicated to the tribunal that she was not asking the tribunal to read it all but simply wanted it to be available in order to ask the respondents’ witnesses questions of it. The documents had originated from the respondent pursuant to a subject access request. Having regard to the overriding objective we permitted the claimant to rely upon the documents to ask questions of the respondent’s witnesses subject to a requirement thata. the claimant must provide 5 copies of the bundle (in hard copy) by the start of the 4th day

b. the time permitted for cross-examination would not be extended. We gave immediate oral reasons for our decision which are repeated at appendix 1 hereto. In the event the claimant did not provide copies by the 4th day (or at all) and did not seek to ask questions about any such documents.

[21]After we had determined that application the claimant indicated that she may wish to rely upon a book which was required to be completed by her before she could be awarded a Care Certificate. We indicated, at the time, that it was not useful to speculate about whether the claimant would be allowed to rely upon such a book before she had brought it to the tribunal.

[22]On the 4th day, the respondent sought to disclose and rely upon 4 pages of documentation which it considered relevant having regard to questions asked of Mr Woodward, who at that point was still giving evidence. The claimant had no objection and therefore the documents were added to the bundle. Later it became apparent that the claimant had failed to ask Mr Woodward questions about those documents which she would have wanted to and, therefore, the respondent offered to recall Mr Woodward so that the claimant could ask him about them. In the end, the claimant did not seek his recall.

[23]At the close of the 5th day of the proceedings (the first Friday) the claimant was told the running order of the respondent’s witnesses. When we proceeded to start the respondent’s evidence on the 6th day (the following Monday) the claimant stated that she believed that the running order should be different to that which the respondent was seeking to implement on the Monday. The tribunal confirmed that the respondent was calling witnesses in the order which it had said that it would and, for reasons which we gave orally at the time and which appear as appendix 2 to these Reasons, we declined the claimant’s application that we should require the respondent to call witnesses in a particular order.

[24]Immediately following that decision, the claimant applied to introduce photographs of J which she said would show that either a third party had injured J or there were incidents of self-harming. The respondent resisted that application and for reasons which, again, we gave orally we refused to allow the claimant permission to adduce the photos. Primarily, we did not consider that they were relevant to the issues we had to determine. The reasons we gave orally appear at appendix 2 to these Reasons.

[25]At the outset the 7th day, the claimant brought the book that she had referred to on the 3rd day of evidence but without copies. The tribunal indicated that unless there were copies for the witnesses, the respondent and the tribunal to see it could not consider any application to rely upon it. However, later in the day the claimant made clear that she wanted to rely upon the book without producing copies, effectively as an exhibit. For reasons which we gave orally and which appear as appendix 3 to these Reasons, we declined to allow her to do so.

[26]After we had delivered that decision, the claimant asked whether she would be able to adduce her mobile telephone which had relevant text messages on. Although the claimant had, previously, referred to the fact there may be messages on the telephone, the tribunal had indicated that it would be necessary for her to produce copies of the messages. She had not done so. We considered whether we should allow the claimant to adduce the messages on her telephone, effectively as an exhibit. However again for reasons we gave orally and which appear at the end of the reasons in appendix 3 we declined to allow her to do so.

[27]In both cases the primary reason why we did not allow evidence to be introduced on the 7th day was that the claimant’s case had been presented and the respondent had called nearly all of its witnesses. It would be unfair to the respondent if it had no opportunity to cross examine the claimant on the documents and if most of its witnesses would have no opportunity to comment on the documents. Rule 50

[28]Prior to the hearing an order had been made under rule 50 of the Tribunal Rules preventing the identification of an individual, that person is referred to throughout these reasons as J. Issues with Translation

[29]Two issues arose with translators during the hearing.

[30]The first occurred at the end of the discussion between the judge and the parties about case management on the first morning. The claimant had wanted a Polish translator for the hearing and that had been arranged by HMCTS. For reasons which were unknown to the tribunal, it had been arranged that different translators would appear on different dates. Thus there was not a single translator appearing all the way through.

[31]The claimant applied to be provided with the same interpreter throughout the whole hearing. The judge enquired as to why that was necessary and was told that it was because the claimant did not want to have to give the history to the case twice. Upon further exploration of that issue, the interpreter explained that she had asked the claimant to provide her with the background to the case before the case started to assist her with translation. Whilst we understand the difficult task which interpreters face and the desirability to have some familiarity with the subject matter they will be translating, we express some hesitation about a translator receiving a summary of the case from one party. Interpretation requires the interpreter to select the appropriate words to best put forward what a witnesses is saying and whilst we make no suggestion that translators will behave in any way improperly (or that any translator did so in this case), it would be unfortunate if their impartiality was compromised, by receiving a partisan account of the case before the hearing had begun.

[32]The judge declined the application, there was no basis to believe that interpreters provided on different days could not translate the case properly and there was no reason to direct that only one translator be used.

[33]On the 2nd day, shortly before lunch, while under cross examination the claimant suggested that one of the answers she had given earlier had been wrongly interpreted. The evidence was interrupted by the tribunal to ensure that it understood the point the claimant was making. The claimant told us that she was saying that her evidence had not been translated properly by the interpreter on that point but she was not sure about the rest of the translation which had been provided that morning. Given the proximity to lunch the tribunal decided, without making any decisions, to adjourn for lunch a few minutes early to allow everyone to take stock as to what allegation was being made and what action, if any, they wanted.

[34]Over the lunch adjournment the Tribunal looked at the cases of TS (interpreters) Eritrea [2019] UK UT 352 and Perera v Secretary of State

[2004] EWCA Civ 1002

for assistance as to the proper approach where there was an issue with interpreters. Those cases establish the principles that if a challenge to the competence of a tribunal appointed interpreter is made, the tribunal must address it as an aspect of the overall duty to ensure a fair hearing.

[35]Upon resuming the hearing the tribunal received a note from the interpreter stating “it will be very difficult for me to continue my work in this case (regardless of the decision is made this afternoon), so please discharge me from my duties and assign a new interpreter. I am booked on Thursday (9/23) Monday (9/27) Wednesday 9/29) Thank you”

[36]In order to enable the interpreter to express her concerns, but also mindful of the importance of an open hearing, the tribunal resumed the hearing in the presence of the claimant and the respondent’s lawyers and the interpreter, but without other witnesses or parties, to enquire further why the interpreter sought to withdraw.

[37]The interpreter stated that it would be difficult to continue if there is an element of doubt between the interpreter and the interpreter’s client. In that respect she was referring to the claimant as her client. She stated that perhaps the client would prefer to carry on with a different interpreter.

[38]The tribunal explained the legal position as it understood it, namely that it was for the tribunal to decide whether it had confidence in the translation which had been given, having regard to the interpreter’s oath which had been taken. In doing so it would have regard to the representations of the parties and also the importance of the evidence to the issues in the case. It explained to the interpreter that the tribunal was her client, it was the tribunal to whom she owed her duties, not the claimant. It was not particularly unusual for a witness to express concern about translation, but that did not automatically mean there was a breakdown in trust. Even if there was a breakdown of trust between the witness and the translator, that was not the ultimate issue. The ultimate issue is whether the tribunal considered that a fair hearing was possible if the interpreter continues in their role.

[39]We asked the interpreter whether that made any difference to her view, and she said that she would continue if the tribunal requested her to do so but that she thought she would lack focus given the concerns that the claimant had expressed.

[40]We asked the claimant what her position was and she told us that she did not wish to continue with the translator but that she did not want us to disregard all of the evidence and start the case again. She clarified that she wanted the tribunal to rely upon what it had heard so far but start from the next day with a different translator.

[41]The respondent contended there was no need to discharge the interpreter, the difference of opinion was minor and the case should proceed.

[42]Having heard those representations we decided that we had faith in the translation which had been provided to us. The interpreter retained our confidence and even if there had been an error it did not go to any central issue. Given that the claimant wanted us to rely upon the evidence which had been given and translated up to that point, it seemed to us that there was no basis for doubting the competence of the interpreter.

[43]However, there was a problem in that the interpreter had told us that she would no longer be able to focus if she continued in her role. The claimant could not have a fair hearing if she was required to have her evidence interpreted by a person who had told us that she was unable to focus.

[44]Thus notwithstanding that we would have continued with the services of the interpreter, given what the interpreter had said to us, we felt we had no option but to adjourn the case to the next day to allow a new interpreter to attend. Timetabling

[45]At the outset of the hearing, the judge also discussed with the parties the need to ensure that the case was properly managed during the final hearing. As part of proper case management, judges are required to ensure that the evidence focuses on the real issues2 and to ensure that cases use their fair share of resources, but not more than that3. The touchstone, of course, remains the overriding objective and the requirement to deal with cases fairly.

[46]The judge drew the party’s attention to the timetable which had been agreed before Employment Judge Gray in accordance with rule 45 of the Tribunal Rules and confirmed that the parties would be required to complete the evidence within the timescales allocated. In accordance with Guidance Note 5 to the Presidential Guidance – General Case Management the judge recommended to the parties that they asked important questions first, in case of running out of time with a particular witness. The judge also suggested to the claimant that she plan how long she wanted with each witness so that the judge could remind her if time was running out. 2 Davies v Sandwell MBC

[2013] EWCA Civ 135

paragraph 33 3 Harris v Academies Enterprise Trust

UKEAT/0097/14

paragraphs 33 to 40.

[47]Throughout the hearing there was a constant danger of the limits in the timetable being exceeded. That was regrettable. Although the issues in the case had proliferated, so that by the time of the final hearing it was alleged that there had been a significant number of detriments following a reasonably large number of disclosures, at its heart the claim was relatively simple. The claimant’s case is that she made protected disclosures and as a result was treated badly in a number of ways, including dismissal. There is also a relatively straightforward indirect discrimination claim. To allow the parties more than 10 days in respect of the hearing of that claim (including deliberations and judgment) was not proportionate to the issues, even taking into account the need for translation. The timetable had been agreed since July 2010 and no party had sought to vary it, even at the start of this hearing. The timetable had been confirmed before Employment Judge Livesey (see paragraph 32.2 of his order sent following that hearing). The timetable was extended, however, to take account of the time lost by the withdrawal of the interpreter and also other delays in the case (including the failure by the interpreter to attend the hearing until 12:30pm on the 8th day of the case). Taking account of the various delays and to ensure that they did not impact on the time allowed for cross examination, the evidence and submissions finished at lunchtime on the 9th day of the case.

[48]Initially it had been agreed between the tribunal and counsel for the respondent that the claimant’s cross-examination would be completed by 4 PM on the 3rd day of the hearing (which took account of the short day on the 2nd day as set out above). At the end of the 3rd day counsel undertook to the tribunal that he had 15 more minutes of questions and was permitted to ask those at the start of the 4th day. Regrettably after 25 minutes it was necessary to bring an end to the cross-examination. The tribunal had already told the parties that they did not consider it necessary for every single point of the case to be put to the other side given the extensive witness statements which existed. If a point arose when the tribunal was making its deliberations which have not been put we would deal with it by recalling the witnesses.

[49]The claimant took on board the tribunal’s guidance as to time limits and completed the cross examination of all of the respondent’s witnesses within the time allocated. Law on Protected Disclosures

[50]The law in respect of protected disclosures is primarily contained within a number of sections of the Employment Rights Act 1996. We have set out the relevant sections below. 43A Meaning of “protected disclosure” In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. 43B Disclosures qualifying for protection(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed. … 43C Disclosure to employer or other responsible person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure . . .— (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to— (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person.

(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer. … 43D Disclosure to legal adviser A qualifying disclosure is made in accordance with this section if it is made in the course of obtaining legal advice. 43F Disclosure to prescribed person (1) A qualifying disclosure is made in accordance with this section if the worker: (a) makes the disclosure to a person prescribed by an order made by the Secretary of State for the purposes of this section, and (b) reasonably believes— (i) that the relevant failure falls within any description of matters in respect of which that peson is so prescribed, and (ii) that the information disclosed, and any allegation contained in it, are substantially true. (2) An order prescribing persons for the purposes of this section may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each descriptions, is or are prescribed.] … 43G Disclosure in other cases (1) A qualifying disclosure is made in accordance with this section if— (a) . . . (b) the worker reasonably believes that the information disclosed, and any allegation contained in it, are substantially true, (c) he does not make the disclosure for purposes of personal gain, (d) any of the conditions in subsection (2) is met, and (e) in all the circumstances of the case, it is reasonable for him to make the disclosure. (2) The conditions referred to in subsection (1)(d) are— (a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F, (b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or (c) that the worker has previously made a disclosure of substantially the same information— (i) to his employer, or (ii) in accordance with section 43F.

(3) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to— (a) the identity of the person to whom the disclosure is made, (b) the seriousness of the relevant failure, (c) whether the relevant failure is continuing or is likely to occur in the future, (d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person, (e) in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and (f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.

(4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure. … 47B Protected disclosures (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a) by another worker of W's employer in the course of that other worker's employment, or (b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. ... 48 Complaints to employment tribunals (1) An employee may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 43M, 44(1), 45, 46, 47, 47A, 47C(1) or 47E , 47E, 47F or 47G. … (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B. … (1B) A person may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47D. (2) On a complaint under subsection (1), (1XA), (1ZA), (1A) or (1B) it is for the employer to show the ground on which any act, or deliberate failure to act, was done. ... (3) 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. (4) For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer, a temporary work agency or a hirer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected do the failed act if it was to be done. (4A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (3)(a). … 103A Protected disclosure An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[51]There has been a significant amount of case law which we have found of assistance in respect of those statutory provisions.

[52]In Martin v London Borough of Southwark the EAT reiterated the 5-stage for determining if there has been a protected disclosure: i. There must be a disclosure of information; ii. The worker must believe the disclosure is \made in the public interest; iii. That belief must be reasonably held; iv. The worker must believe that the disclosure tends to show one of the matters in s43B(1)(a)-(f) Employment Rights Act 1996, e.g. a criminal offence has been committed; v. That belief must be reasonably held.

[53]In Kilraine v London Borough of Wandsworth

[2018] EWCA Civ 1436

. The Court of Appeal held “The question in each case in relation to section 43B(1) (as it stood prior to amendment in 2013) is whether a particular statement or disclosure is a “disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the [matters set out in sub-paragraphs (a) to (f)]”. Grammatically, the word “information” has to be read with the qualifying phrase, “which tends to show [etc]” (as, for example, in the present case, information which tends to show “that a person has failed or is likely to fail to comply with any legal obligation to which he is subject”). In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). The statements in the solicitors' letter in Cavendish Munro did not meet that standard” (para 35).

[54]As the EAT has set out in Dray Simpson v Cantor Fitzgerald [2020] I.C.R. 236 “the question in each case, as has now been made clear, is whether a particular statement or disclosure is a “disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the [matters set out in paragraphs (a) to (f)]”. However, in order for a statement or disclosure to be a qualifying disclosure, it has to have a “sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1)”. The question of whether or not a particular statement or disclosure does contain sufficient content or specificity is a matter for evaluative judgment by the Tribunal in light of all the facts of the case (para 39).

[55]The test on belief in the public interest was set out the case of Chesterton Global v Nuromohamed where it was reiterated that the tribunal must ask b. whether the worker believed at the time he was making the disclosure that it was in the public interest and, c. if so, whether that belief was reasonable

[56]More than one view may be reasonable as to whether something is in the public interest

[57]Moreover an employee can attempt to justify the belief after the event by reference to matters which were not in his head at the time as long as he had a genuine belief at the time that the disclosure was in the public interest. Moreover that belief does not have to be the predominant motor.

[58]The tribunal could find that the particular reasons why the worker believed the disclosure to be in the public interest did not justify his belief but nevertheless find it had been reasonable for different reasons. All the matters is that the subjective belief was objectively reasonable (Nuromohamed paragraph 29)

[59]In Fecitt v NHS Manchester

[2012] ICR 372

, the Court of Appeal held that the test of whether an employee has been subjected to a detriment on the ground that he had made a protected disclosure is satisfied if, “the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower”

[60]In Jesudasen the Court of Appeal stated “Liability is not, therefore, established by the claimant showing that but for the protected disclosure, the employer would not have committed the relevant act which gives rise to a detriment. If the employer can show that the reason he took the action which caused the detriment had nothing to do with the making of the protected disclosures, or that this was only a trivial factor in his reasoning, he will not be liable under section 47B” (paragraph 31).

[61]In Martin v Devonshires Solicitors

[2011] ICR 352

, the EAT held, at paragraph 22 that “In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. The most straightforward example is where the reason relied on is the manner of the complaint. Take the case of an employee who makes, in good faith, a complaint of discrimination but couches it in terms of violent racial abuse of the manager alleged to be responsible; or who accompanies a genuine complaint with threats of violence; or who insists on making it by ringing the managing director at home at 3 a m. In such cases it is neither artificial nor contrary to the policy of the antivictimisation provisions for the employer to say “I am taking action against you not because you have complained of discrimination but because of the way in which you did it”. Indeed it would be extraordinary if those provisions gave employees absolute immunity in respect of anything said or done in the context of a protected complaint.... Of course such a line of argument is capable of abuse. Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had, say, used intemperate language or made inaccurate statements. An employer who purports to object to “ordinary” unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases. But the fact that the distinction may be illegitimately made in some cases does not mean that it is wrong in principle.

[62]In Panayiotou v Kernaghan

[2014] IRLR 500

, at para 49 and 52 the EAT held: ''[49] There is, in principle, a distinction between the disclosure of information and the manner or way in which the information is disclosed. An example would be the disclosing of information by using racist or otherwise abusive language. Depending on the circumstances, it may be permissible to distinguish between the disclosure of the information and the manner or way in which it was disclosed. An employer may be able to say that the fact that the employee disclosed particular information played no part in a decision to subject the employee to the detriment but the offensive or abusive way in which the employee conveyed the information was considered to be unacceptable. Similarly, it is also possible, depending on the circumstances, for a distinction to be drawn between the disclosure of the information and the steps taken by the employee in relation to the information disclosed.' … [52] Those authorities demonstrate that, in certain circumstances, it will be permissible to separate out factors or consequences following from the making of a protected disclosure from the making of the protected disclosure itself. The employment tribunal will, however, need to ensure that the factors relied upon are genuinely separable from the fact of making the protected disclosure and are in fact the reasons why the employer acted as it did.' 14. In respect of a claim of detriment, Harvey on Industrial Relations states “The term 'detriment' is not defined in the ERA 1996 but it is a concept that is familiar throughout discrimination law … and it is submitted that the term should be construed in a consistent fashion. If this is the case then a detriment will be established if a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment. In order to establish a detriment it is not necessary for the worker to show that there was some physical or economic consequence flowing from the matters complained of”. The same approach has been set out by the Court of Appeal in Jesudason v Alder Hey Children's NHS Foundation Trust

[2020] EWCA Civ 73

at paragraphs 27 to 28. 15. Royal Mail Group Ltd v Jhuti

[2020] ICR 71

held that if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason. 16. That approach was clarified by the EAT in Kong v Gulf EA-2020-000357-JOJ where HHJ Auerbach noted “First, the general rule that the motivation that can be ascribed to the employer is only that of the decision-maker(s) continues to apply. Secondly, there is no warrant to extend the exceptions beyond the scenario described by Underhill LJ, which will itself be a relatively rare occurrence, and the surely highly unusual variation encountered in Jhuti. Thirdly, whether in the scenario contemplated by Underhill LJ, or in the variation described by Lord Wilson, two common features are that(a) the person whose motivation is attributed to the employer sought to procure the employee’s dismissal for the proscribed reason; and

(b) the decision-maker was peculiarly dependent upon that person as the source for the underlying facts and information concerning the case. A third essential feature is that their role or position be of the particular kind described in either scenario, so as to make it appropriate for their motivation to be attributed to the employer” (para 71). Law on Indirect Discrimination 17. By s 19(1) EqA 2010 a respondent discriminates against a claimant if it applies a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of the claimant’s. 18. By s 19(2) a PCP is discriminatory if: (a) the respondent applies, or would apply, it to persons with whom the claimant does not share the characteristic, (b) it puts, or would put, persons with whom the claimant shares the characteristic at a particular disadvantage when compared with person with whom the claimant does not share it, and

(c) it puts, or would put, the claimant at that disadvantage. 19. It is a defence (under s 19(2)(d)) for the respondent to show that the PCP is justified as a proportionate means of achieving a legitimate aim. 20. The burden of proof is on the claimant initially under s 136(1) EqA 2010 to establish facts from which the Tribunal could decide, in the absence of any other explanation, that the Respondent has acted unlawfully. In an indirect discrimination case, this means that the claimant must prove the application of the PCP, the particular disadvantage in comparison to others and that the claimant was put at that disadvantage. The burden then passes to the respondent under s 136(3) to show that the treatment was justified. 21. What needs to be justified is the rule itself (Homer v Chief Constable of West Yorkshire Police

[2012] UKSC 15

[2012] ICR 704

). 22. The Tribunal must focus on the proportionality of having a rule at all, rather than the question of reasonableness of applying the rule to the particular claimant (The City of Oxford Bus Services Limited t/a Oxford Bus Company v Mr L Harvey

UKEAT/0171/18/JOJ

). Findings of Fact & Conclusions

[63]We will set out our central findings of fact first. Those are the findings that we think give an overview of the case generally. We will then set out our findings on the specific issues. At that stage, in order to attempt to make our decision more digestible, rather than setting out a list of findings of fact and then a list of conclusions, we will deal with the identified issues in turn, set out our findings of fact and, at the same time, set out our conclusions in respect of each issue. In doing that, however, we do not lose sight of the fact that it is always necessary to take a step back and look at all of the findings of fact in considering whether the claims are made out. It is important not to lose sight of the bigger picture because of focusing on individual details and we have endeavoured to consider the overall situation throughout.

[64]There were various references in both the documentation and oral evidence to “Safeguarding”. That, generally, was a reference to the Safeguarding Team of Dorset County Council and when we refer to Safeguarding we intend it to have the same meaning unless we state otherwise. Central Findings of Fact

[65]The respondent is a non-profit making limited company and a registered charity. It is a farm in Dorset running to 90 acres. It provides land-based work opportunities, individualised support and supported living for adults with learning difficulties. It’s a reasonably large organisation employing 51 people, including 44 support workers. It is governed by a Board of Trustees.

[66]The claimant commenced employment on 11 July 2017 as a Support Worker. Her contract showed that she was employed to work for 24-hour hours per week (page 129). Prior to the issues to which this claim relates she had not been subject to any disciplinary procedures.

[67]The claimant applied for her job, sending a CV which appears at 125C of the bundle. That CV states that the claimant has A-level English. It also says that she has excellent communication skills. She also had to complete an application form in which she stated that she had a qualification in entry 3 level English and was studying towards level 2 (page 361). In cross-examination she initially said that the reference to A level English was a mistake but she also stated “everyone who is writing to a potential employer is trying to show the best side of herself and trying to make the best impression; this is a simple thing that everyone follows.”

[68]The claimant was interviewed for the role and the interview record is at page 367. She was asked “Can you describe an example of when you have recognised a safeguarding issue/or a situation where you thought a vulnerable person was at risk of harm?” The interviewer gave her a score of 4/5 in respect of her answer stating “understood concept and how to respond appropriately”. There was no suggestion that the claimant struggled with English in the interview.

[69]Although the contract stated that the claimant worked 24 hours a week, according to the witness statement of Mr Woodward she also had a bank contract for extra hours with Sturt’s. We accept that evidence

[70]The service user (service users are referred to by the respondent as companions) that the claimant worked with was “J”. He had severe autism. There is evidence in the bundle (and it is not disputed) that the claimant used to take photographs of the activities which she was doing with J and send them by WhatsApp to J’s mother. J’s mother appeared to appreciate getting the photographs and would reply in favourable and positive terms.

[71]There is an email from Mr Johnson (who was a co-worker with the claimant) to the claimant, at page 782, where he indicates that it was not unusual for J to have minor scratches when he was dropped off and Mr Johnson would have a brief conversation with his mother about how they were acquired. That did not appear to be a controversial action. He did not have any concerns about J’s welfare. We accept that evidence as accurate. The respondent had various policies.

[73]The Adult Safeguarding Policy & Procedure sets out a process to follow for Recording and Reporting abuse (page 179). One of the requirements is that a person should not contact or speak to the alleged abuser about an allegation. It makes clear that when someone discloses to “you”, “you” are not investigating.

[74]It also deals, separately, with suspected abuse (page 182). It provides that a report giving information about the circumstances needs to be written as soon as possible by the witness and, then, having assessed the severity of the situation, the Registered Manager will report the allegation to the Care Quality Commission and to Social Services and possibly the police. Provision is made, if it is not wanted to report to the registered manager, for contact be made with the Dorset County Council Safeguarding Teams (paragraph 11.7, p183).

[75]The claimant accepted that she had received training and accepted that she may have received training on safeguarding vulnerable adults, but said she could not precisely remember all of the modules in the training. We find that she was.

[76]The respondent also has a Social Media policy. The claimant signed the policy on 25 July 2017. It provides that co-workers must not take images on personal devices and must not comment on or allude to specific people or situations.

[77]The claimant’s case is that over a period of time she had raised concerns about J. We will return later to make findings of fact in relation to those matters said to amount to protected disclosures. However, it seems to us that, on anyone’s case, matters came to a head in October 2018.

[78]It’s clear that the claimant was unhappy in October 2018 and she had a meeting with Lee Doran, her manager. She states that she raised a grievance against Tim Woodward regarding negligence of J’s care and about working conditions. She says that she told him she felt like a slave. In her witness statement (page 15) she describes this as being her 2nd formal verbal grievance against Tim Woodward and the respondent and that her first was a few days earlier.

[79]Lee Doran says that the first meeting took place on 11 October 2018. He says that he made a note of the meeting at page 407, although it is wrongly dated. The note records that the claimant did say she felt like she was a slave but did not raise any concerns of a whistleblowing nature. He says that he had a subsequent meeting with the claimant on 16 October and the notes appear at page 414 of the bundle. He gave the claimant a grievance form. His note, again, suggests that there was no concerns of a whistleblowing nature.

[80]Although the claimant believes the notes were created later, to bolster the respondent’s version of events we find that they were not and they record the general thrust of what the claimant said to Mr Doran.

[81]On 25 October 2018, the claimant was concerned about scratches to J’s face. She took photographs and sent them by WhatsApp to J’s mother with the message “yesterday I had no chance to ask you about it but after you’ve gone in the morning I found a couple of bruses on [J’s] face and hand. Could you tell me what happened because it is not first time”. She then sent a subsequent message 2 minutes later stating “scrach no bruses. Sory for my English language.” (sic).

[82]J’s mother replied with an explanation including the statement “yes he woke up with that and he does that every now and then. I will try and point out anything like that to you if you have to record it. [ Thumbs up emoticon]” (page 426).

[83]On the same day J’s mother wrote to Mr Woodward, chief executive, explaining the WhatsApp message she had received and her explanation. She stated “please could you tell me what the procedure is for this, should this have been done through you, Rob or Lee rather than Bernadetta send me a message? I briefly mentioned this to Rob on the way out tonight. On a happier note I have some lovely pictures of J feeding the pigs which she sent me.” (p427). We find that although that email is polite and moderate in tone, it does reveal some upset on the part of J’s mother at having received the WhatsApp message.

[84]There was then a conversation between Mr Woodward and J’s mother on the 26 October, where J’s mother expressed upset at having received the communication from the claimant, believing she was accusing her of harming J. Mr Woodward indicated that he thought the communication was inappropriate and outside of the relevant procedures because the claimant should not be communicating directly with the J’s mother on this issue if she suspected abuse and should not be taking images on her personal phone.

[85]Mr Woodward also spoke with the claimant on 26 October and told her that contacting J’s mother directly was inappropriate if she had concerns and that she should not have taken photographs on her phone. The claimant asserted that she had an email giving her permission but, nevertheless, Mr Woodward stated “ in strong terms” that she must stop taking photographs in that manner and any previous direction was incorrect. Mr Woodward’s note of that conversation is at page 450. We find that it is contemporaneous and broadly accurate

[86]On the same day the Mr Johnson made an entry on the Caresys system at the request of the claimant. He stated that the claimant was on good terms with J’s mother and the matter had escalated, possibly due to the claimant’s blunt language and slight lack of colloquial English. He wrote “Bernadetta cares for J, worries about him, and wants what’s best for him as do all the parties involved.… I spent nearly 5 years on the child protection unit and for on the Major Crime Team in Dorset Please. Nothing I have seen suggests to me that J has been assaulted or abused by anyone.”

[87]On the 28 October 2018, the claimant wrote to Mr Woodward. The letter she wrote is a long one and intertwines different matters. She criticises Mr Woodward for accusing her of breaking the rules before asking her what had happened. She states that he should not have assumed that J’s mother was right and she was wrong. She sets out why she was taking photographs on her phone. She then says she had “repeatedly reported that J arrives in the morning with many wounds on his feet, many scratches on her hands, swollen eyes and dissected skin under the eye…”She goes on to state that she had seen J’s mother pushing him out of the car with her foot and witnessed other inappropriate behaviour. She makes complaints about inhumane working conditions in the winter. She then repeats her criticisms of Mr Woodward (pages 431 – 433)

[88]On 29th of October 2018 the claimant submitted a fit note from the general practitioner stating she was not fit for work which, according to an email at page 434, expired on 5 November 2018. The fit notes are not legible in the bundle.

[89]On 29 October 2010 Mr Woodward contacted Safeguarding (which, as we have said, is part of the local authority). He was unable to contact J’s social worker. There is a note on the respondent’s Caresys system for that date. It appears that he raised both the fact that the claimant had raised concerns about scratches to J’s face but also the failure of the claimant to deal with the matter by using safeguarding procedures and taking pictures on her phone. The note records that Mr Woodward would attempt to contact the claimant’s social worker on the following Wednesday. (Page 835)

[90]At page 439 is an email which, according to a file note, was sent on 31st October following Mr Woodward’s discussion with J’s social worker. It is from Safeguarding. The email states that the writer’s colleagues and her have no concerns and do not feel that a meeting is necessary. They asked Mr Woodward to contact J’s mother and inform her of that.

[91]We find, therefore, that Mr Woodward did not ignore the concerns raised by the claimant but dealt with them by contacting Safeguarding.

[92]The respondent decided to treat the claimant’s letter of 28 October 2018 as a grievance. It wrote to the claimant on 31 October 2018, by its Chair of the Trustees. The claimant was invited to a meeting on 5 November 2018 and was told that she could be accompanied by a fellow employee.

[93]On 5 November 2018 the claimant sought a postponement of the meeting and asked for an exploratory conversation to take place in writing due to English not being her first language. (Page 444). The Chair replied stating that it was not appropriate to conduct a grievance review by email and that although she was surprised that the claimant considered her English inadequate, the claimant could bring a companion who could help with any translation needs. Alternative dates were suggested. (Page 447).

[94]At some point after the claimant’s letter, Mr Woodward contacted the respondent’s human resources/ legal adviser, Peninsula. To the extent necessary the respondent waived privilege in respect of any advice given by Peninsula during the course of the hearing.

[95]Mr Woodward’s evidence was not altogether clear as to why he contacted Peninsula, but we formed the view that he had found the letter of 28 October to be difficult in so far as it contained a number of different threads. He also thought the claimant’s behaviour was inappropriate in having contacted J’s mother. He said, and we accept, that he was conscious that the grievance was about him so that he needed to step back but it was also the case that the trustees who sat above him in the organisational structure did not deal with dayto-day activities.

[96]Peninsula advised Mr Woodward that the grievance procedure and any disciplinary procedure must be separated and that the grievance had to be heard first. There was then a 2nd call to Peninsula a few days later where, Mr Woodward says, Peninsula advised that the claimant should be suspended while the grievance was heard because it was a small working environment and Mr Woodward would not be able to manage the claimant while she was pursuing a grievance. It was also noted that the claimant’s role was specific to J and there was a complexity to the case which had risk associated with it.

[97]That evidence is consistent with an email which Mr Woodward sent to 2 of the trustees on 7 November 2018 in which he stated “I wish to have confirmation that I have your support to follow Peninsula advice and suspend her on full pay subject to the outcome of her grievance.” (Page 452).

[98]We find the decision to suspend the claimant was primarily that of Mr Woodward, but it is apparent from page 465 that Ms Doyle was also involved in that decision.

[99]The claimant was then signed off sick from 5th November to 7 November 2018 (page 456).

[100]At a meeting between Lee Doran (the claimant’s line manager) and the claimant on 8 November 2018 the claimant was suspended. Mr Doran agreed in evidence that he did not tell the claimant the reason that she was being suspended.

[101]The grievance meeting took place on 12 November 2019. According to the respondent’s minute it took place between 12:30 PM and 2:20 PM. It was chaired by Mo Doyle and the claimant was accompanied by a friend (Mr Jakowski), who did not wish to give his 2nd name. He was not a colleague. The claimant has produced transcripts of extracts from a recording of the meeting, which we accept do not cover the whole meeting. However, in cross examination Mr Jakowski, who gave evidence before us, confirmed that if he had interpreted any of the meeting for the claimant it would have been in the transcripts. There is no such entry. There is no objective evidence that the claimant struggled with understanding what was discussed in that meeting.

[102]On 13 November 2018, the claimant contacted Safeguarding. She recorded her conversation and a transcript of part of it appears at page 498. The part that the claimant has produced for this hearing does not disclose what she said to the Safeguarding team but she records the response as including the statement “details of the information that you’ve given to me is very different to information that we’ve had as of yet.” (Page 498). It is difficult to draw any conclusions from that when it is not known exactly what the claimant said to Safeguarding. A file note at page 500 shows that Safeguarding contacted the respondent on 14 November 2018 and ultimately decided that no further action was required.

[103]On 19 November 2018, the claimant contacted Dorset Police Adult at Risk Team and sent a very large number of photographs which related to J. They appear to be JPEG images taken on the claimant’s telephone as well as a movie file (page 528). The photographs could not be downloaded by the police and, therefore, it was suggested that she attend in person with a memory stick.

[104]On 19 November 2018, the claimant contacted the Care Quality Commission to share concerns about the respondent (p556). She sent a further email on 20 November 2018 to them attaching 3 references (in respect of her) and stating “I think this is important to send it to you because you will know, that my work was appreciated by them. J’s mother praised me very much and was happy with my work until I sent her a photo of J with the wounds on the face and on the hands with the question – “what happened to J?” (Page 556)

[105]The outcome of the claimant’s grievance was sent to her on 6 December 2018. Ms Doyle set out a summary of the concerns raised by the claimant and what further investigations she had carried out. The findings were briefly stated and were “during the course of our meeting on 12/11 you stated “this is generally not important about Tim – it is mostly about J and how he is treated”, it was clear from the meeting that you did not have a grievance with TW; rather you were concerned about J. Any grievance is therefore not substantiated.” The claimant was given a right of appeal (page 563).

[106]On 10 December 2018, the claimant was sent an invitation to a disciplinary hearing on 14 December. The letter stated that the disciplinary hearing would consider 5 things- failing to inform the Social Enterprise Manager when the claimant suspected abuse, breaching the company rules in respect of sickness absence procedures, using the claimant’s telephone during working hours, taking photographs of a sensitive nature on her own phone and sharing those photographs with the service user’s parent to ask them to justify the alleged marks on the service user.

[107]The disciplinary letter was signed by Tim Woodward. He told us that the reason the letter was sent, at that time, was that there have been advice that the grievance hearing had to be resolved before the disciplinary. The trustees would deal with the disciplinary process and, he said, there was a discussion with them about whether to send the letter or not.

[108]What has not been explained to us, by any of the respondent’s witnesses, is who created the list of allegations in that letter. The claimant contends that this is significant, since as we will explain below, the list of allegations was, ultimately, changed. Mr Woodward stated that he did not know why the allegations were changed. Given that he signed the letter and in the absence of any other evidence we have concluded on the balance of probabilities that he created the list of allegations in this letter.

[109]The meeting was due to take place on 14 December 2018 but on 12 December 2018 the claimant wrote to Ms Doyle stating that the grievance had not yet been finalised because her right to appeal was outstanding. The claimant stated that she demanded that the date of the disciplinary meeting be postponed (page 567). On 12 December 2018 Ms Darby Jenkins, one of the respondents trustees, wrote to the claimant stating that they would not postpone the disciplinary hearing because the outcome of the grievance had been issued. The claimant again objected, on 13 December, and Ms Darby Jenkins changed her mind and postponed the disciplinary hearing on that day (page 576).

[110]On 13 December 2018, the claimant sent her appeal against the grievance outcome (page 578).

[111]On 19 December 2018 Michael Crutchley, one of the respondent’s trustees, wrote to the claimant stating that her appeal would be heard on 4th January at the offices of Lester Aldridge solicitors. The appeal was to be heard by him and he summarised the claimant’s grounds of appeal. The claimant was told she could be accompanied by a colleague. Unfortunately the letter was sent to the claimant’s old address (page 583).

[112]As a consequence of the letter being sent to the claimant’s old address, the claimant did not receive the letter and, therefore, did not contact the respondent. There is evidence, however, that the letter was signed for by somebody.

[113]On 2 January 2019 the claimant raised a further grievance, this time about the behaviour of Mo Doyle in respect of the claimant’s suspension and grievance.

[114]One 3 January 2019, Mr Crutchley asked Ms Greaves to telephone the claimant because nothing had been heard. There is a dispute as to what happened during that telephone conversation. Ms Greaves noted the conversation - page 594. The claimant wrote a three-page letter about it which appears at page 596.

[115]The grievance appeal hearing was adjourned although there is no clear document trail in the bundle in this respect (see page 610).

[116]On 7 January 2019 (incorrectly dated 7 December 2019) the claimant wrote a letter to “To whom it may concern”. The letter talked about the fact that the respondent had sent the letter in respect of the grievance appeal to the wrong address. The letter is robust in its terms and contained the statement “I have reasonable concerns and reasons not to disclose my current home address. During the time since this case with Sturts started, my car was damaged twice, once it was an obvious action of 3rd parties. This fault could have ended tragically – with a very serious accident or potentially death. I have a witness who was there with me in the car at the time of the incident. As I wrote above – my correspondence address currently available to Sturt’s is up-to-date and sufficient.” (Page 607)

[117]The respondent’s employees who saw the letter reasonably understood that the reason the claimant did not want to disclose her home address to the respondent was because of the damage to her car. Although the claimant is correct that she does not expressly state that the damage was caused by Sturts, or at its request, her letter carries a heavy implication to that effect. It would have read to an employee or trustee of Sturts that the claimant was alleging that there was a connection between her grievance and the damage to her vehicle and that someone from or on behalf of Sturts had caused the damage.

[118]A letter at page 613 of the bundle suggests that the claimant also reported to the police that she was suspicious that the respondent had hacked her email.

[119]On 15 January 2019 the claimant was invited to a grievance appeal meeting by Ms Geddes, at that time a partner with the firm Lester Aldridge LLP. The letter made clear that she had been appointed to hear the grievance and proposed 18 January 2018 for the meeting. She enclosed the grievance policy and procedure and the notes of the grievance meeting held on 12 November 2018. The claimant was told that she could be accompanied. We find that she was appointed because of the implicit allegation in the claimant’s letter of 7 January 2019.

[120]The claimant then sought a postponement of the date because her companion could not attend and the grievance was rescheduled for 24 January 2019 (page 624). In the same letter, it was explained to the claimant that her grievance in respect of Mo Doyle’s handling of her grievance would be dealt with as part of the appeal.

[121]The grievance appeal took place on 24 January 2019 and the claimant’s grievance was rejected in a detailed letter dated 4 February 2019 (page 638). The meeting lasted between 11 AM and 2:40 PM.

[122]On 5 February 2019, the claimant was required to attend a disciplinary hearing on 7 February (p649). The letter requiring her to do so was sent at 3:14 PM. The allegations in the letter were somewhat different from the allegations in the earlier letter. There were now 3 instead of 5 and they were, first, that the claimant had taken photographs of a vulnerable adult who was unable to consent, secondly that the claimant had continued to keep those photographs without consent and thirdly that the claimant had not followed safeguarding procedures.

[123]We were told in evidence, and accept, that the charges were formed by Ms McIntosh. She was the respondent’s Service Manager. She had been on maternity leave until around the end of November 2018. She was asked, around the time of writing the letter, by Mo Doyle, to set out the allegations that would form the basis of the disciplinary hearing. She told us, and we accept, that she reviewed the information available to her and decided on the charges. She was unaware of the earlier letter in December. She then instructed Ms Westerman to conduct a disciplinary process. Ms Westerman wrote the letter which appears at page 649. Ms Westerman was an external HR consultant.

[124]On 6 February 2019, the claimant wrote pointing out that she only had one day to prepare herself the meeting. She asked for a postponement and stated “I need to be accompanied by a person who fluently speaks English. Such support is necessary for me, because not being able to understand one specific word or the meaning of one sentence could have very large consequences.” (Page 654)

[125]On the same day Ms Westerman refused the request and stated that the meeting would take place as planned on 7th February at 1:45 PM (p655).

[126]The meeting went ahead with the claimant and the claimant attended without a companion or an interpreter. It commenced at 1:45 PM and, according to the notes, ended at 3:18 PM. Again the claimant recorded the meeting and transcripts of extracts appear at pages 671 – 683 of the bundle.

[127]Ms Westerman found that the claimant was guilty of the 2nd and 3rd charges alleged against her and decided that the appropriate sanction was summary dismissal. She wrote accordingly on 11th February 2019.

[128]On 12 February 2019 the claimant wrote to Ms Geddes stating that the outcome letter that she had written included fundamental substantive errors which meant that her letter was built on untruth. She asked Ms Geddes to correct her outcome decision. (Page 691). Ms Geddes refused stating that her involvement was at an end and if she disagreed with any points made in the letter, the claimant should address them to her employer (page 689).

[129]Meanwhile, on 11 February 2019 ,the claimant had raised a further letter of grievance (page 685). The respondent acknowledged that on 12 February 2019 and stated that it had dealt with the “appeal” in writing rather than meeting face-to-face. It said it did so to keep a clear track of what had and had not been covered. It invited the claimant to set out further information.

[130]On 14 February 2019 the claimant attended at Sturt’s premises, accompanied by a man who she did not introduce. She asked for Ms West, the Farm Secretary to sign a letter and to take a copy of some documents and asked her to read it quickly because time was running and she needed an answer by tomorrow. As we set out more fully below, she was accompanied by Mr Jakowski.

[131]Later that day, an email sent on behalf of the Sturt’s Board of Trustees stated that they had been advised that the claimant had been to the farm and handed the secretary some copies of emails and insisted that she sign to receive them. The claimant was told that she must not attend the farm and should communicate only through an email address provided and that if she attempted to visit the farm again the police would be called. (Page 697)

[132]On 14 February 2019 the respondent, by Ms McIntosh, reported the claimant to CQC (p701) and Safeguarding (p713) in respect of a number of concerns including that the claimant had taken J to an art exhibition in Winchester and taken photographs of him which could be seen as objectifying him in front of one of her paintings, she had taken him to her home for personal work, she had taken him to the Town Hall to allow her to complete some personal work and she had taken him to some stones similar to Stonehenge to heal him. The claimant’s mother, it was said, had also stated that the volume of photographs taken by the claimant was unnecessary, the example being given of 41 photographs being taken in one session of him feeding pigs. In the report to CQC was the statement “Social Work team have suggested reporting to DBS” (page 706); a similar statement is recorded in the referral to Safeguarding (page 716).

[133]We do not have a copy of any referral made to DBS but are satisfied that one was made.

[134]On 15 February 2019 the claimant appealed against the disciplinary decision (page 717) and an appeal was suggested for 22 February 2019 (page 735). The appeal was to be heard by a Face 2Face consultant which is a service provided by Peninsula. It was, therefore, a different organisation to that which Ms Westerman worked for. The claimant sought to adjourn that meeting to allow her to attend with an interpreter and that adjournment was granted. The appeal was rescheduled for 27th of February 2019. The claimant was told that no further postponement would be granted (page 742). The claimant replied stating that she had specifically said her interpreter could attend on 28 February 2019 and the interpreter was not available on 27th. The meeting went ahead on 27 February 2019. The claimant attended alone. The claimant’s appeal was dismissed on 5 March 2019 (page 777).

[135]On 23 February 2019 the respondent chased up its earlier letter of 12th February 2019 in respect of the claimant’s grievance (see paragraph 129 above and p749). On the evidence we have seen, the claimant did not respond.

[136]On 2 March 2019 the Disclosure & Barring Service wrote to the claimant stating that she would not be added to the barred list (page 776). Specific Allegations/ Issues

[137]Against those facts, we now turn to the lists of issues setting out particular allegations. However, some of our findings of fact relate to more than one of the allegations and should be read accordingly.

[138]The list of alleged disclosures is set out in the order of Employment Judge Salter and appears at page 29 of the bundle. He also sets out allegations in relation to detriment but they have been repeated in Employment Judge Reed’s order following the hearing on 23 January 2020.

[139]We follow the numbering contained within that order. We are aware of earlier decisions in the EAT which discourage the use of Roman numerals in judgments, however, the Case Management Orders in this case have used such numbering and that numbering was used during the hearing without apparent difficulty. We have concluded that it is preferable to use the Roman numeral system in order to maintain consistency and to enable the parties to cross refer our judgment to the case management orders. EJ Salter’s Order- Disclosures Paragraph 19(a)(i) Between September 2017 and October 2018 verbal and written report about a service user known as “J:”

[140]We accept that the claimant intended issue this to refer to “reports” rather than a single report.

[141]The respondent does not dispute that a report was made in May 2018. The claimant disclosed, initially to Mr Brown her line manager, that J had scratches and red marks on his face and arms. As we have indicated, the respondent operates a system called Caresys for the recording of such notes and a record appears at page 397 of the bundle. The entry shows that the Safeguarding team had been contacted and had stated that unless there was any reason to believe somebody might be inflicting the injuries no action was required.

[142]We must decide whether that disclosure was a protected disclosure within the meaning of the Employment Rights Act 1996.

[143]We note, and accept, the evidence of Mr Saunders, an occupational therapist who worked for the local authority that “whilst the Claimant may have had good intentions for J, I never felt that she wanted to carry out her support role with him. It seemed to me that J was a project for the Claimant and that she wanted to help him in other ways. For example, she talked about curing his autism. Whilst this may have been well intentioned, it was a mistake in my opinion and I feel that it would have been better if the Claimant and Chris had focused more on implementing the strategies recommended and carrying out their day to day role rather than trying to go outside of this role”.

[144]We find that the claimant was, to some extent, overly involved and overly concerned for J and may well have reacted to the presence of scratches in ways that others would not have done. We do not find that she was acting in bad faith and do not accept the respondent’s submissions that she was only acting for her own benefit; we find, however, that her views were less objectively justified than they might have been.

[145]We find that in telling Mr Brown that J had scratches and red marks on his face and arms the claimant was disclosing information. Moreover we find that she reasonably believed that the scratches and red marks tended to show that J’s health and safety was being or was likely to be endangered. Whilst, of course, such scratches are not conclusive evidence of abuse or any kind of wrongdoing and might just be a normal part of everyday life, it was reasonable for the claimant to think that the presence of scratches were likely to endanger the claimant’s health and safety given that they were on his face and had occurred more than once. In reaching that conclusion we place reliance upon the fact that, according to page 782, Mr Johnson would speak to J’s mother about how scratches had been acquired. Thus the scratches were of sufficient significance for Mr. Johnson to wish to discuss them with J’s mother.

[146]We also find that the claimant genuinely believed that the disclosure was being made in the public interest in that she was concerned about the welfare of a vulnerable individual. It was reasonable for her to believe, if she thought that J’s scratches might be non-accidental, that it was in the public interest for her to raise the matter with her employer. In this respect we note both the entry in the Caresys system made by Mr Johnson on 26 October 2018 in which he stated “Bernadetta cares for J, worries about him, and wants what’s best for him ..” and the evidence which we heard from Mr Saunders that the claimant had good intentions for J.

[147]This disclosure was to the claimant’s employer and we find did, therefore, amount to a protected disclosure.

[148]We also accept the claimant’s evidence that she had provided a body map of the claimant showing scratches on his person. Although the respondent denies having received such a map, we are willing to accept the claimant’s evidence in this respect given thata. she has repeatedly made reference to it,

b. it is consistent with her making the disclosure referred to above and

c. in the statement of Mr Johnson dated 13 July 2020 he states that the claimant had completed a body map and given it to Dan Brown. Although we have not heard evidence from Mr Johnson and he has not been cross-examined, given his other moderate statements which do not always assist the claimant, we find his evidence on this point is likely to be reliable. It is difficult for us to put any date on this map.

[149]We accept that the disclosure of the body map was given to Dan Brown and therefore to the claimant’s employer.

[150]We consider that, in this respect, there was a disclosure of information, albeit probably in diagrammatic form. The information would be the presence and location of scratches on J’s body. For the reasons we have given above, we accept that the claimant would have reasonably believed that the information tended to show that the health or safety of an individual was being or was likely to be endangered and she would reasonably have believed that the disclosure was made in the public interest.

[151]However there is no sufficient evidence which would allow us to find that other disclosures were made in this period.

[152]The claimant’s evidence on this point is at paragraph 2 of her witness statement. She refers to pages 782 and 432,481,482,483,484,485,486 and 487 of the bundle but save to the extent we have indicated above, those pages do not provide independent evidence of any disclosures and largely comprise part of the transcript of the later grievance process.

[153]Whilst it may be that the claimant genuinely believes now that she did make further disclosures, we are not willing to accept her uncorroborated evidence for the following reasons.a. It seems to us that the claimant now views things that have happened in the past through a particular filter which makes her recollection unreliable, in that she now believes that the respondent has never behaved properly towards her or J and she has been the only person standing up for J. That is, to some extent, borne out by the evidence of Mr Saunders to which we have referred above and is also our own observation of the claimant during the hearing.

b. We observe that in her witness statement the claimant made very serious allegations about the way in which Mr Woodward behaved towards J at the start of her employment when she had finished shadowing her colleagues. We do not accept that evidence is accurate because, if it was, we would have expected the claimant to raise it at an earlier stage and, at least, to see it referred to in this letter of 28 October 2018. We think that this is an example of the claimant’s case changing as time has gone on.

c. As we set out below we also find that there are statements in the claimant’s letter of 28 October 2018 which are not accurate. Thus, generally speaking we do not consider the claimant’s uncorroborated evidence to be sufficiently reliable for us to rely upon it.

[154]Thus we are not satisfied that there were any other disclosures between September 2017 and October 2018. Paragraph 19 (a) (ii)- Early Summer 2018 in a conversation with Jon Saunders – she asked him if he had been allocated to J and he said it was just a routine visit.

[155]According to Mr Saunders’ own evidence, he recalls a conversation with the claimant in early summer 2018 about J where the claimant raised concerns telling him that she had seem some scratching and bruising. He goes on to explain why he felt there was an innocent explanation. He explains that he felt that J was really settled and was never highly agitated.

[156]For the same reasons we have given above in relation to disclosures about scratches to Mr Brown, we accept that the claimant was disclosing information to Mr Saunders in this respect and that she reasonably believed doing so was in the public interest and she reasonably believed the information tended to show that the health or safety of an individual was being or was likely to be endangered.

[157]We must, however, consider whether the disclosure was made in accordance with sections 43C to 43H Employment rights Act 1996.

[158]We find that the disclosure falls within section 43C(1)(b). Although the structure of that subsection is not altogether easy, we find that the claimant had the following reasonable beliefs;a. the failure to prevent J having scratches was a failure of somebody to safeguard the welfare of J,

b. the welfare of J was a matter for which the local authority had legal responsibility,

c. Mr Saunders, being employed by the East Dorset Community Learning Disabilities Team, was a person to whom she could make a report.

[159]In those circumstances we find that the disclosure was a protected Paragraph 19(a)(iii)- Verbal Grievance against Tim Woodward at the beginning of October 2018

[160]The claimant asserts that the grievance was raised with Mr Doran.

[161]As we have indicated, we accept that the notes made by Mr Doran at pages 407 and 414 are a summary of the points raised by the claimant at the 2 meetings she had with him and are largely accurate. The points which the claimant was raising were points about her own personal position and her own unhappiness within the organisation.

[162]Therefore, we are not satisfied that the claimant disclosed any information which, in her reasonable belief, would show any of the matters in section 43B(1)(a)-(f) Employment Rights Act 1996. We are also not satisfied that the claimant reasonably believed that any of the matters she was raising at that time were in the public interest.

[163]We note that the claimant was given a copy of the grievance procedure at that meeting and invited to consider whether she would like to raise a grievance (page 414).

[164]We do not consider this amounted to a protected disclosure. Paragraph 19(a)(iv) – written grievance against Tim Woodward on 29 October 2018

[165]The grievance is dated 28 October 2018 (page 41) but was, we are told, given to Mr Woodward on the 29th.

[166]As we have indicated, that grievance intertwines a number of different matters. It has 2 paragraphs which most obviously read as disclosures (and these, as we understood it, were the ones advanced by the claimant during the course of the hearing). They are the 4th paragraph and the second to last paragraph on page 432.

[167]The disclosure in the 4th paragraph states that the claimant had “repeatedly reported that J arrives in the morning with many wounds on his feet, many scratches on the hands, swollen eyes and dissected skin under the eye swelling and a haematoma, with the blood on the neck from the [illegible] or with other scratches on the face or bruises on the cheek reminders of impacts. Despite of these reports no one made any attempt to investigate this, or I was not informed about such actions.” (sic)

[168]We accept, on the balance of probabilities, that statement was the claimant’s recollection of events at that time. However, we do not accept that the recollection was fully accurate; we believe that by the time the claimant wrote that letter, in the wake of the meeting she had had earlier in the week with Mr Woodward, her recollection of previous events had become unreliable. The letter reads as if the claimant was in a highly emotional state.

[169]The second to last paragraph goes further accusing the claimant’s mother of sitting down in the back seat of the car next to J and pushing him with her foot and sometimes with her shoe out of the car or pushing him with her shoulder while holding onto the front seat.

[170]We find that the disclosure in the 4th paragraph of page 432 was a disclosure of information and that, at the time that the claimant wrote her letter, she was setting out her genuine recollection, even though find that it was an exaggeration of what exactly she had seen. We find that she had not seen more than scratches.

[171]The claimant refers, however to scratches within the paragraph (which she had seen) and for the reasons we have already given, we find that she reasonably believed that information tended to show that the health or safety of an individual had been or was likely to be endangered and she reasonably believed that disclosure was in the public interest. It was a disclosure to her employer.

[172]However, our view is otherwise in relation to the disclosure in the last but one paragraph on that page.

[173]We do not find that the claimant had seen J’s mother doing what she says in the letter, nor had anyone else. If she had done, we find that she would have raised concerns before the 28th October.

[174]In those circumstances we do not think that the claimant reasonably believed that the information tended to show the health or safety of an individual was being or was likely to be endangered. If the claimant had not seen such matters herself, nor been told of them by another, we do not think it can be said that she could reasonably believe that what she was saying showed likely endangerment to health or safety. Likewise she could not reasonably believe that her disclosure was in the public interest.

[175]The respondent’s closing submissions highlight a further potential disclosure in the final page of that letter ( page 433) where the claimant asserts that in the winter J and Chris and her were working in inhumane working conditions because they spent a lot of daily hours with J outside in very cold weather. She goes on to state that despite the recommendation of Jon [Saunders] a wooden house was not prepared for the claimant.

[176]Mr Saunders witness statement is very different he states “From my observations, J liked being outside and was often spending time outside regardless of the weather. Even if it was raining, J would want to be outside. However, when he was outside, I noted that he would always be wearing waterproof clothing so I was not concerned. He always seemed to be well wrapped up. Of course, if J was outside then his carer also needed to be outside and its possible that the Claimant was not so happy about being outside in the rain and cold. However, given that J wanted to be outside, it would be a consequence of this that the carer also had to be with him and would be part of the role”.

[177]To the extent that this is alleged to be a protected disclosure, we find that the claimant did disclose information which in her genuine belief tended to show that the health or safety of J was being endangered.

[178]However, having regard to the witness statement of Mr Saunders, which we accept, we do not find that any such belief could be reasonable and, therefore, do not accept that this could be a protected disclosure. No reasonable person would think that in the circumstances described my Mr Saunders J’s health or safety was being or was likely to be being endangered.

[179]Thus we do not accept that this part of the letter amounted to a protected

[180]We think it is inappropriate to treat the entire letter of 28 October 2018 as being a single disclosure. Parts of the letter are not a disclosure at all (such as the attempts by the claimant to justify why she had taken photographs and the grievance against Mr Woodward) and the disclosures which we have identified are distinct, albeit linked.

[181]Thus we find that the grievance of 28 October 2021 contained one protected disclosure, being the 4th paragraph on p432 but it also contained other information, statements and allegations. Paragraph 19(a)(v) - on 13th November in a telephone contact with Jon Saunders

[182]Mr Saunders accepts that on 13 November 2018 the claimant told him that she had said she was concerned about the physical welfare of J and she thought he was being abused. He says that he told her that if he she was concerned she should contact Adult Safeguarding.

[183]The evidence in relation to this alleged disclosure is not particularly full. Mr Saunders does not go into detail as to what was said to him and the claimant does not really deal with the point in her witness statement. However the claimant’s witness, Mr Jakowski, does deal with it and states that he heard Mr Saunders say to the claimant that he remembered her expressing her concerns about J’s well-being and safeguarding to him and that she was concerned about his injuries and spending a lot of time outside in the cold.

[184]Having observed the claimant giving evidence, we find it unlikely that she would telephone Mr Saunders to make an allegation about failures in connection with J’s welfare, without also explaining at length why she held that view. We mean no disrespect to the claimant if we say that she does not make brief statements. She also, it appears to us, generally seeks to have the last word in a conversation. We find that she would have relayed the basis for her concerns to Mr Saunders in the telephone call on 13 November 2018.

[185]Given that it is likely, on the balance of probabilities, that the claimant would have told Mr Saunders about scratches, for the reasons we have given above in relation to the earlier disclosure to Mr Saunders, we accept that this was a protected disclosure. Paragraph 19(a)(vi)- Call to Dorset County Council Safeguarding for Adults

[186]There is no doubt that the claimant telephoned Dorset County Council on 13th November as we have set out above. It is also clear that the day after a person called Sally, from Safeguarding, telephoned somebody at the respondent stating that they had received a call from the claimant on the previous day in relation to previous concerns. The file note of the respondent of 14th November, which appears at page 500, records that the claimant might be of the opinion that her earlier concerns had not been dealt with and so she was reporting it herself. Again, Safeguarding had no concerns.

[187]We find that in the conversation with Adult Safeguarding it is likely that the claimant would have reiterated her concerns in relation to J including the fact that he had scratches. Although it is likely that the claimant went beyond that (given her letter of 28 October), we find that she said at least that.

[188]We find that the claimant did believe that she was disclosing information which tended to show that the health or safety of J was, or was likely to be, endangered.

[189]We have paused, however, to consider whether, by this stage, the claimant could reasonably believe that the information she was disclosing tended to show that J’s health and safety was being endangered. We find that she did reasonably believe that, since no one had sat down with the claimant and explained to her why her concerns were ill founded. We do not suggest that somebody should have sat with the claimant and explained why she was wrong, but in the absence of that happening the claimant could reasonably believe, and we find did reasonably believe, that her concerns were going unaddressed and still tended to show that J’s health and safety was being endangered because of the presence of scratched to his face.

[190]The question then arises as to whether or not the disclosure was made within section 43C to H Employment Rights Act 1996.

[191]In this respect we find that the claimant made a disclosure in accordance with a procedure authorised by her employer pursuant to section 43C(2). The respondent’s own procedure (at page 183 of the bundle) states that if a person “for a variety of reasons” does not want to report to the Registered Manager they can report to Dorset County Council Adult Safeguarding Triage Team. We find, therefore, that the disclosure was made in accordance with a procedure authorised by the respondent.

[192]If we were wrong in that respect we would have found that the claimant had made a disclosure under section 43C(1)(b) for the reasons we have given above in respect of Mr Saunders.

[193]Thus we find that this was a protected disclosure. Paragraph 19(a)(vii) from 8 November 2018 when attending the CABx

[194]The claimant sets out in her witness statement what information she says that she gave to the CAB. She states that she explained her reports regarding potential abuse and what she saw. A brief summary of the claimants meeting/s with CAB appears at page 803 and tends to support what the claimant says.

[195]Again, having heard the claimant give evidence, we think it is unlikely that she would not have explained in some detail what her concerns were. To the extent that she was disclosing information about scratches, for the reasons we have given, we find that she was disclosing information which in her reasonable belief was in the public interest and tended to show that the health or safety of an individual was being endangered.

[196]We find that this would be a disclosure to a legal adviser within section 43D Employment rights Act 1996.

[197]However, we are satisfied that the respondent was not aware of such a disclosure and it could not have informed any decisions subsequently made by the respondent. Paragraph 19(a)(viii)- in a telephone call with the CQC on or around 17 November 2018.

[198]We accept that the claimant telephoned the CQC, there is evidence of doing so at page 502. At page 787 of the bundle there appears to be a record of the conversation which has been made by the CQC. It records that “J is coming to the service with injuries on his legs, hands, face and under his knee”.

[199]We find that this was a disclosure of information and, for the reasons we have already given, find that in disclosing that information the claimant reasonably believed that she was disclosing information which tended to show that the health or safety of J was being or likely to be endangered.

[200]We have stopped to consider whether the claimant, by now, reasonably believed that she was acting in the public interest. Although the claimant was, by now, engaged in conduct which might be described as a campaign we find that she did so because she believed that she was raising issues for J’s welfare. She was not doing so for her own benefit and we find that she believed that raising matters with the CQC about J’s welfare was in the public interest. The scratches remained unexplained to her and given the vulnerability of J it was reasonable for her to believe that raising those matters was in the public interest.

[201]The CQC is a prescribed person for the purposes of section 43F Employment Rights Act 1996. We note that according to the Public Interest Disclosure (Prescribed Persons) Order 2014, the matters for which the CQC is prescribed may not precisely cover the welfare of individuals within organisations regulated by CQC, but having regard to the general public profile of the CQC we find that the claimant reasonably believed that the scratches to the claimant fell within the description of matters in respect of which the CQC was prescribed and also that the information she disclosed, namely that J was coming to the service with injuries to his legs, hands, face and his knee was substantially true.

[202]However, we are not satisfied that the respondent became aware of this disclosure at the time it was made. Detrimental Treatment- Employment Judge Reed’s Order

[203]The alleged detriments which the claimant suffered as a result of the disclosures are initially set out in paragraph 20 of the case management order of Employment Judge Salter. Employment Judge Reed has then repeated those alleged detriments and added others in paragraphs 9 and 10 of his order dated 21st February 2020.

[204]In those circumstances we will address the issues from paragraphs 9 and 10 of the order of Employment Judge Reed (pages 96 to 98 of the bundle.) Paragraph 9(i)- On the morning of 26 November 2018 Tim Woodward accused the claimant of doing things she had not done. Paragraph 9(ii) He started shouting at her and accusing her of taking photos of J without permission. Paragraph 9(iii) He alleged that the claimant had told J's mother that the mother had caused the injuries to J and then, later in the conversation, changed his account so that he said that J's mother had a feeling that the claimant thought the mother had caused the injuries to J.

[205]Given that these allegations all relate to the same meeting we will deal with them together. It is agreed that this allegation should refer to 26 October 2018.

[206]The allegation arises out of the meeting referred to above at paragraph 85.

[207]We note Mr Woodward’s own file note, that he spoke to the claimant in strong terms. We find that he was of the view that the claimant had done wrong in taking photographs of J and then, in his view, accusing J’s mother of being responsible for J’s scratches. We note, further, that according to his file note the claimant argued with him saying that she had an email giving her permission. We find that he was not pleased with the claimant arguing with him, rather than simply accepting she was in the wrong.

[208]On the balance of probabilities we find that Mr Woodward did, in those circumstances, shout at the claimant and accuse her of wrongdoing.

[209]The 3rd of the allegations above suggests that Mr Woodward changed his account during the conversation so that he started off saying that the claimant had told J’s mother that she had caused the injuries and then said that J’s mother had a feeling that the claimant thought she had caused the injuries to J.

[210]We find that this conversation would have been somewhat fluid. It is likely that Mr Woodward did start the conversation by stating that J’s mother had said that she had been accused of causing the injuries. It is likely, also, that the claimant argued back that she had not made that allegation. When the claimant argued back, it is likely that Mr Woodward would then move to a position of asserting that J’s mother had the feeling that the claimant thought she had caused the injuries.

[211]We do not find there was anything sinister in the change of position by Mr Woodward, to the extent that it was a change of position. A reasonable worker in the position of the claimant would not consider that change of position to be to their detriment.

[212]However, in so far as Mr Woodward did shout at the claimant and did accuse her of wrongdoing without, first, asking for her version of events, we find that a reasonable person in the position of the claimant would feel that they had been treated detrimentally.

[213]We must then consider whether the detriment was on the ground of the protected disclosures which we have found proved.

[214]At this stage, on our findings, no disclosure had been made to Mr Woodward and we are not able to conclude that he was even aware of the earlier disclosures. In any event, we are entirely satisfied that he was motivated by the email which he had received from J’s mother and the conversation which he had had with J’s mother as well, as the meeting went on, by the fact that the claimant sought to justify herself, instead of accepting that she was wrong (as he saw it).

[215]The treatment in the meeting was not in any way influenced by any disclosures which the claimant had made up to that stage.

[216]Thus in respect of this allegation, although we find the claimant was the actions of Mr Woodward. This allegation does not succeed. Paragraph 9(iv)- Suspending the Claimant

[217]When the meeting on 26 October 2018 ended, the claimant had not been suspended. The matter was left on the basis that Mr Woodward had spoken to the claimant in strong terms.

[218]The claimant was only suspended after she had sent her letter of 28 October 2018. The question must, therefore, arise whether the decision to suspend the claimant was materially influenced by the disclosure which we have found was contained in that letter.

[219]We have set out above in paragraphs 95 to 98 our findings as to why Mr Woodward and Ms Doyle decided to suspend the claimant. We accept that it was a combination of;a. Mr Woodward feeling unable to manage the claimant whilst the claimant had raised a grievance against him,

b. the organisation being a small one

c. the behaviour of the claimant in taking photographs of J’s injuries and sending the WhatsApp of 25 October 2018 to J’s mother whilst her role was specific to J and

d. The advice received from Peninsula that the grievance must be decided before the disciplinary and that the claimant should be suspended whilst the grievance was heard4.

[220]We note that Mr Woodward had already contacted Safeguarding at that stage and disclosed the matters alleged by the claimant and that Safeguarding had stated they had no concerns. Thus this is not a case where the employer was seeking to cover up allegations of wrongdoing.

[221]We find that the decision to suspend the claimant was not influenced by the disclosure within the letter of 28 October 2018 and, certainly, to the extent that the disclosure was a factor, it was not more than a trivial influence.

[222]Thus in respect of this allegation, although we find the claimant was the respondent’s actions. This allegation does not succeed. Allegation 9(v) - Closing the Grievance Procedure

[223]The claim form in box 8.2 amplifies this allegation stating “Grievance procedure was closed without real conclusion and a disciplinary procedure was then launched” (page 9)

[224]The claimant was invited to a meeting in respect of her grievance on 12 November 2018. The grievance lasted from 12:30 PM until 2:20 PM. The 4 We make no comment on the extent to which that advice was correct. claimant was sent a letter with the outcome of her grievance as stated above (page 562).

[225]The grievance outcome letter stated why the grievance was being dismissed. It was after that letter that the disciplinary procedure was initially launched. Although the claimant was not happy with the decision in the outcome letter, it cannot be said that the grievance was closed without a real conclusion.

[226]The claimant was then permitted an appeal which was carried out by Ms Geddes and a detailed outcome letter was sent on 4 February 2019 (page 638). The claimant sought to challenge Ms Geddes’ findings but she, properly, declined to engage in that dialogue and directed the claimant to her employer.

[227]The claimant did contact her employer and the employer asked for further particulars, and chased for them on 23 February 2019 (page 749) but they were not provided.

[228]We do not find, as a fact, that the grievance procedure was closed without a real conclusion. To the extent that the claimant is referring to the initial decision and/or the appeal decision, both of those stages were closed with a proper conclusion (albeit one the claimant disagreed with). To the extent that the claimant is referring to what might be described as the 3rd stage (culminating, on the evidence we have, with the letter at page 749) the respondent did not close the grievance process at all. The claimant simply stopped engaging in it.

[229]Thus we find that a reasonable worker in the position of the claimant would not consider that they have been subjected to a detriment.

[230]However, even if we were wrong in that respect, we do not find that there is any evidence that either Ms Doyle or Ms Geddes were materially influenced by the disclosures which had been made. Whilst it is for the respondent to show the basis for any action, and noting that the claimant has not had the benefit of cross-examining Ms Doyle, the evidence which we have suggests:a. Ms Doyle dismissed the grievance because she felt that, in fact, the claimant was not really complaining about Mr Woodward. Therefore, she concluded, the grievance against him that she had been asked to consider had no basis. Within the grievance meeting with Ms Doyle, the claimant spoke about her concerns about J and Ms Doyle offered to arrange for a detailed discussion to take place with Tim Woodward about that. However she made clear that in terms of the grievance which she was considering she had nothing to suggest that Tim had been “out of order” (page 488). It was the latter point which materially influenced her in making the decision she did.

b. Ms Geddes dismissed the grievance appeal because she did not consider the grounds of appeal which the claimant had advanced against Ms Doyle’s decision were valid.

[231]We do not find that the claimant was subject to any detriment in this respect and, if she was, we are satisfied that the actions that she complains of were not influenced by the disclosures. This allegation does not succeed. Allegation 9(vi)- Commencing Disciplinary Proceedings

[232]The decision to commence disciplinary proceedings was one made by Mr Woodward. We accept his evidence, at paragraphs 55 to 57 of his witness statement, that by the end of October 2018 he had formed the view that the claimant had committed disciplinary offences and he wished to proceed to a disciplinary hearing. He had, we find, telephoned Peninsula to discuss doing so and been told that the grievance must be determined first, as is evidenced at page 452.

[233]Mr Woodward, however, had not decided to commence disciplinary proceedings at the end of the meeting on 26 October 2018.

[234]We find that he formed the view that disciplinary proceedings should be commenced between receiving the claimant’s letter of 28 October 2018 and contacting Peninsula by 7 November 2018.

[235]The question is, therefore, whether the disclosure in the claimant’s letter of 28 October 2018 was a material influence in his decision.

[236]Mr Woodward’s evidence in this respect was not particularly clear which was regrettable but was, perhaps, a reflection of the number of things which were happening quickly at the time which is, in turn, reflected in the different components of the claimant’s letter dated 28 October.

[237]We have concluded that a combination of;a. Mr Woodward being unhappy with the claimant at the end of the meeting on 26 October 2018 and

b. the claimant seeking to justify her decisions in the letter of 28 October 2018 rather than accepting she may be at fault, were the material influences in Mr Woodward’s decision.

[238]We find that he believed that the claimant had wrongly taken photographs of J and then wrongly accused J’s mother of being responsible for J’s injuries. He was particularly unhappy with that because, as he told us, it had taken a long time to get J’s mother to trust anyone enough to allow her son to be cared for by them. The claimant was in danger of undermining that trust.

[239]Again, we note that there is no evidence that the respondent was trying to cover up any allegations of abuse- it had reported them to Safeguarding.

[240]The effect of the claimant complaining about Mr Woodward was that he felt he had to, now, stand back from the process and hand it over to the trustees but we do not think that that was a material influence in the decision to bring disciplinary proceedings against the claimant.

[241]We find that the respondent has proved to us the reason for commencing disciplinary proceedings, which was the conduct of the claimant as set out above, rather than the making of any disclosures.

[242]Thus in respect of this allegation, although we find the claimant was the respondent’s actions. This allegation does not succeed Paragraph 10(i)- on 8 November 2018 the claimant was suspended without explanation and later told by Ms Doyle that it was because she had submitted a grievance

[243]We have set out, above, our finding that the claimant was not told the reason for the suspension at the point when she was suspended by Mr Doran on 8 November 2018.

[244]The letter of suspension from Ms Doyle dated 9 November 2018 appears to accept that, stating, “I apologise for the poor communication regarding your suspension from work. As you yourself pointed out, we have the option to do this during a grievance procedure. It made sense to do this because Sturts has a small working community and I felt you might be uncomfortable with people knowing what was underway. I also took into account that you had been off sick and that you had stated that you considered your condition to be caused by stress at work.” (Page 465)

[245]For the claimant to be suspended without being given an adequate reason was to her detriment and a reasonable person in her position would take that view.

[246]The letter from Ms Doyle mitigated the situation to some extent by referring to the grievance procedure. Ms Doyle was right to say that the suspension was because the claimant had submitted a grievance. Insofar as this allegation asserts that it was to the claimant’s detriment to be told by Ms Doyle that the suspension was because she had submitted a grievance, we disagree. The real reason for the suspension was the fact that the claimant had submitted a grievance and therefore it cannot be to her detriment to be told that.

[247]We are satisfied that the failure to give an explanation for the suspension, at the time when the claimant was suspended, was not influenced by the disclosure made by the claimant. We find that Mr Doran simply did not know (or understand) the reason for the suspension.

[248]Further, although Ms Doyle did know the reason for the suspension, to the extent that she failed to explain it sufficiently in her letter of 9 November 2018, that was not because the claimant had made a protected disclosure but simply a consequence of the way she had worded her letter.

[249]Thus in respect of this allegation, although we find the claimant was Paragraph 10(ii)- on 12th November Ms Doyle refused to give the claimant minutes of the meeting of 8th November

[250]The claimant did not ask for the minutes of the meeting of 8th November but for the minutes of 12th November (at the top of page 491).

[251]There is no dispute that the claimant was not given a copy of the minutes as taken by the respondent.

[252]The respondent says that there was no detriment to the claimant because she was permitted to audio record the meeting.

[253]We do not agree. Given that, presumably, the decisions made by Ms Doyle would be based upon what was recorded in the minutes of the meeting and, perhaps more so, the decisions at the grievance appeal stage would be likely to be based on those minutes, it was important for the claimant to have a copy of the minutes.

[254]A reasonable worker in the position of the claimant would take the view that not being given a copy of the minutes was to their detriment.

[255]However, again, we do not find that the decision made by Ms Doyle was because of the protected disclosure. The witness statement of Ms Doyle states that she felt the claimant’s recorded notes were going to be more detailed and more accurate than the handwritten notes taken by the notetaker.

[256]Although the claimant has not had the benefit of cross-examining Ms Doyle, she has been given permission to ask Ms Doyle written questions which she had not taken up.

[257]The claimant has provided extracts of a transcript of the audio recording of that meeting. At page 491 they show that the claimant asked for a copy of the minutes and Ms Doyle replied “no… Rob is here to give notes for my benefit, for the grievance, for the farm’s documentation”. The claimant objects and Ms Doyle states “you’ve got everything recorded on your phone which was your choice, now please leave.”

[258]The transcript also shows Ms Doyle being frustrated with the claimant (to the point where Ms Doyle left the meeting). We have not been asked to decide anything about the way in which the grievance meeting was conducted and do not do so; however it is clear that by the end of the meeting, when the claimant was asking for the minutes, Ms Doyle’s patience with the claimant had run out (whether reasonably or otherwise) and the matter had descended into something of an argument about whether the claimant should be given the notes or should rely upon her own audio recording.

[259]We think the argument was largely pointless, the claimant should simply have been given a copy of the minutes, but the evidence suggests that Ms Doyle was not even thinking about the disclosures at the point she refused to give the minutes; she simply felt that the claimant was being unreasonable in asking for them because she had audio recorded the meeting.

[260]Thus we find, on the balance of probabilities, that the reason for the refusal to give the claimant the minutes was the fact that the claimant had recorded the meeting and both she and Ms Doyle had adopted a position of some intransigence by the end of the grievance meeting.

[261]Thus in respect of this allegation, although we find the claimant was Paragraph 10(iii)- the respondent brought on the disciplinary hearing too quickly after the determination of the grievance after one working day

[262]The grievance outcome letter was dated 6 December 2018 which was a Thursday. It would presumably have been received by the claimant on the 7th, being the Friday. The letter to the claimant inviting her to a disciplinary meeting was sent on the 10th.

[263]Thus we accept that the disciplinary process (although not the hearing) was brought on within one working day.

[264]The decision of the tribunal is that such a short time span was to the detriment of the claimant because the letter of 6 December 2018 gave the claimant 7 days to appeal against the grievance outcome. It would have been reasonable, in our view, to wait for the claimant to decide whether to appeal or not before launching disciplinary proceedings.

[265]A reasonable person in the position of the claimant would feel somewhat overwhelmed by receiving both the dismissal of their grievance and the invitation to a disciplinary meeting so quickly and while the grievance appeal process had not been allowed to run its course.

[266]We note that this decision was after the claimant had made disclosures to Safeguarding and CQC and Mr Woodward would have been aware of, at least, the former.

[267]We find that that the hasty implementation of the disciplinary procedure showed frustration on the part of Mr Woodward.

[268]However we accept Mr Woodward’s evidence that he had wanted to get on with matters as quickly as possible from early November (see paragraph 57 of his witness statement). He had been forced to delay doing so by the advice that he had received from Peninsula that the grievance should be resolved first.

[269]In our view, as soon as the grievance was resolved, Mr Woodward wished to get on with the disciplinary process and so caused the letter of 10 December 2018 to be sent straight away.

[270]However we find that while the disclosure to Safeguarding may have had some influence on Mr Woodward, it was not more than a trivial influence. Mr Woodward had already reported the issue to Safeguarding.

[271]Thus in respect of this allegation, although we find the claimant was subjected to a detriment, we are satisfied that any disclosures did not materially influence the actions. This allegation does not succeed. Paragraph 10(iv)- the respondent did not go through an investigatory stage with the claimant in relation to the allegations that purportedly resulted in her dismissal

[272]In respect of this allegation we have not reached a unanimous agreement.

[273]The majority view of the tribunal (being the employee and employer panel appointed members) is that there was no investigatory stage- which is required under the ACAS code. They are of the view that that was a detriment to the claimant (and would be viewed as such by a reasonable employee) because the claimant did not have the opportunity to advance her explanation before a disciplinary process was commenced.

[274]The majority also take the view that, by then, Mr Woodward was aware that the claimant had made her disclosure to Safeguarding (on 13th November). Their view is that, at that point, Mr Woodward would have been frustrated with the claimant who was causing the respondent difficulties. The view of the majority is that although Mr Woodward had already decided to commence a disciplinary process, because of his frustration with the claimant in pursuing the disclosure with the local authority he decided to simply get on with the disciplinary process and move straight to a disciplinary hearing rather than go through an investigatory stage.

[275]Thus whilst his decision, initially, to bring the disciplinary proceedings was not influenced by any disclosure, his decision to move straight to a disciplinary hearing rather than go through an investigation, was influenced by the disclosure to Safeguarding, at least to the extent that it was more than a trivial influence.

[276]The minority view (being that of the judge) is that, in fact, the respondent had complied with the ACAS code which provides that “It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing”. The minority considers that in gathering the evidence from J’s mother and speaking to the claimant about that on 26 October 2018 the respondent had done enough to proceed to a disciplinary hearing where the claimant would be able to advance any defences that she wanted to.

[277]Thus the minority does not consider that the claimant was subjected to treatment which a reasonable worker would consider to be to their detriment. It is not always to an employee’s benefit to be invited to an investigatory meeting because many of the safeguards which exist in respect of a disciplinary hearing (such as being sent the evidence in advance and being accompanied) do not apply to an investigatory meeting.

[278]However, even if there was a detriment, the minority is satisfied that Mr Woodward’s decision to proceed without an investigatory meeting was not because of the fact that the claimant had made a disclosure to safeguarding on 13th November. It was simply a reflection of his desire to get on with a process which he considered should not be delayed any further.

[279]The issue is simply one of fact. It is reasonable for different members of the tribunal to reach different conclusions about the facts of what happened. Where that happens, the issue is resolved on the basis of the view of the majority and, therefore, this aspect of the claimant’s claim succeeds.

[280]However all of the members of the tribunal agree that, even if Mr Woodward had conducted an investigatory meeting, the claimant would still have faced disciplinary proceedings. The tribunal is also unanimous in its view that the claimant would still have been dismissed in circumstances set out below. These findings are relevant to the question of what remedy the claimant is entitled to. Although she is entitled to an award of injury to feelings in this respect, the tribunal’s findings tend to the conclusion that she has suffered little, if any, financial loss as a result of this detriment. Precise quantification of loss is a matter for the remedy hearing. Paragraph 10 (v)- The respondent refused to accede to a request by the claimant that the hearing be postponed

[281]This allegation refers to the disciplinary hearing and, as we have set out above in paragraphs 124-125, the claimant sought postponement in order to allow her to have a companion.

[282]Given that the invitation to the meeting was only sent at 3:14 PM on 5 February 2019, for a meeting which was due to take place on 7th November at 1:45 PM, it is not surprising that the claimant had difficulty securing the services of a companion who could act as her translator.

[283]We were told by Ms Westerman that she had asked for the letter inviting the claimant to the disciplinary meeting (dated 5 February 2019) to be sent at a time which gave the claimant two days’ notice. Thus she had anticipated it being sent in the morning on 5 February 2019. We are somewhat dubious as to whether that gave the claimant sufficient time to prepare but accept Ms Westerman’s evidence on that point. Regrettably the letter was not sent until the afternoon by the respondent.

[284]The claimant, unsurprisingly and not unreasonably, sought a postponement which Ms Westerman refused. The refusal to adjourn the meeting would be seen as a detriment by a reasonable worker in those circumstances.

[285]Ms Westerman describes herself as an independent HR consultant. We accept that she carries on the business of an HR consultant. She has a daughter who works for the respondent and, to that extent, is not entirely independent of it but we are unaware of any other relationship between her and the respondent.

[286]She told us that she refused to postpone the disciplinary hearing because it related to matters raised in October 2018 and the disciplinary process had already been postponed for a number of months. She said that there was a desire at the respondent to get the process moving given the long period of time that it had been going on and, therefore, she felt the claimant had adequate time to prepare for the hearing.

[287]We can understand why, by February 2019, the respondent’s trustees would be telling Ms Westerman to get on with the process. The allegations were, by then, old. The claimant had gone through a grievance and grievance appeal process and the respondent would want to move on with its business. By this time the decisions were being made by the trustees rather than Mr Woodward.

[288]We take the view that Ms Westerman’s decision was wrong and failed to properly take on board the claimant’s need for an interpreter, but we have no basis for doubting the reasons that she has given to us for making her decision. There is no basis for believing that she was influenced by any disclosure made by the claimant, nor do we conclude that the desire of the respondent to keep the process moving was because the claimant had made the protected disclosures she had.

[289]Thus in respect of this allegation, although we find the claimant was Ms Westerman’s actions. This allegation does not succeed. Paragraph 10(vi)- refusing to replace the note taker at the disciplinary hearing

[290]This too was a decision of Ms Westerman. The claimant had wanted to replace Alexander Greaves as the notetaker because, she said, Ms Greaves had behaved in a reprehensible way during a telephone conversation about the incorrect addressing of a letter (this is an allegation to which we will turn shortly). She stated that Ms Greaves’ behaviour was rough and bad mannered. She stated that she did not want a person who shouted at her on the phone and who had bad manners and acted unprofessionally to be present during the meeting (page 654).

[291]As will be seen below, we do not accept the factual premise of what the claimant asserted.

[292]Ms Westerman refused to change the notetaker stating that she was only present to take notes and would not have any influence in the decision or take part in the meeting (page 655).

[293]We consider the decision of Ms Westerman to be reasonable and not one which a reasonable person in the position of the claimant would consider to be to their detriment. An employee cannot usually demand a change of notetaker at a disciplinary meeting.

[294]However, even if it was a detriment we are satisfied that it was in no way influenced by the disclosures which the claimant had made. Ms Westerman simply saw no reason to change the notetaker.

[295]We do not find that the claimant was subject to any detriment in this the disclosures. This allegation does not succeed. Paragraph 10(vii)- the disciplinary hearing was rushed

[296]The meeting room in which the disciplinary hearing was to take place had been booked for 1.5 hours. It was necessary for the meeting to finish in that time.

[297]The members of the tribunal have not reached a unanimous view as to whether, in those circumstances, the decision was rushed.

[298]The majority, being the judge and one of the members, are of the view that there was sufficient time for the hearing to take place and for the claimant to advance any answers she wished to in response to the allegations. Whilst it is accepted that the way the claimant asks questions and answers them (which generally entails very long explanations and not always listening to answers) would likely mean that there was insufficient time for the claimant to speak for as long as she wanted to, that is not the same as saying the meeting was rushed.

[299]The minority view is that if the claimant could not say everything she wanted to because of a deadline in respect of the meeting, the meeting is rushed.

[300]We have not found it necessary to finally resolve that dispute because we are unanimously satisfied that, in any event, the decision to book the room for 1.5 hours and limit the hearing to that long was not because the claimant had made any disclosures but simply because Ms Westerman took the view that was the best way of dealing with matters.

[301]Thus in respect of this allegation, we are satisfied that any disclosures did not influence Ms Westerman’s actions. This allegation does not succeed Paragraph 10(viii)- it was agreed that the disciplinary hearing should be adjourned to another date but the claimant was dismissed before that date

[302]To understand the factual background to this allegation it is necessary to consider the claimant’s transcript of the meeting at page 683.

[303]The transcript records Ms Westerman stating that she would come to a decision and could write to the claimant with a decision or the meeting could be reconvened. The claimant replies to state that she would like to see Ms Westerman one more time because she had much more to say. Ms Westerman replies to say “okay but it needs to be (inaudible) to what we’re doing here all right?”. The claimant agrees with a sentence which is not easy to follow. Ms Westerman then says they will close the meeting and asks the claimant a convenient time to reconvene.

[304]Thus, we find, Ms Westerman was not intending to reconvene the meeting for the claimant to make further representations, but was effectively, persuaded into doing so.

[305]Ms Westerman’s recollection, set out in paragraph 31 of her witness statement, is inaccurate to that extent. However we do accept that she decided not to reconvene the meeting because she felt that the issues had been discussed and the claimant had put her case forward. She felt there was no need for a further meeting with the claimant. We can understand why she would have wished to avoid a further meeting which she considered to be unnecessary.

[306]In those circumstances, even if the failure to reconvene the meeting was to the claimant’s detriment, we are satisfied that it was not because the claimant had made a protected disclosure but because Ms Westerman wanted to bring a conclusion to the disciplinary proceedings. The protected disclosures were not even a trivial influence on Ms Westerman’s decision. This allegation fails. Paragraph 10(ix)- the respondent refused to allow the claimant to return to work after the determination of her first grievance and also failed to address her correspondence in connection with that matter

[307]The claimant was initially suspended because of the fact that she had raised a grievance. She was not, thereafter, told that the suspension was continuing because she faced a disciplinary process.

[308]That was a failure of process by the respondent which should have made clear that the basis for the suspension was changing. It was understandable that the claimant would feel uncertain as to what was going on.

[309]However the decision to maintain the suspension of the claimant pending resolution of the disciplinary proceedings was, we are satisfied, simply a consequence of the fact that the claimant was facing those disciplinary proceedings. It was not because she had made protected disclosures. The protected disclosures were not of any influence in the decision that the claimant should remain suspended.

[310]Thus in respect of this allegation, although we find the claimant was Paragraph 10(x) – the person who dealt with the grievance appeal (Ms Geddes) would not accede to the claimant’s request to amend her notes

[311]We accept that Ms Geddes would not accede to the claimant’s request to amend her notes.

[312]The claimant, in cross-examination, spent a significant amount of time seeking to challenge Ms Geddes on her outcome letter of 4 February 2019. In particular the point which the claimant made repeatedly was that the outcome letter stated “…SCT subsequently decided to outsource the appeal following a complaint that your car had been damaged by somebody within SCT”.

[313]The claimant stated that Ms Geddes should have investigated whether or not the claimant had complained that her car had been damaged by somebody within SCT and, if she had, she would have discovered that that was not the claimant’s allegation.

[314]However that line of questioning misunderstands the purpose of the explanation Ms Geddes was giving. Ms Geddes was unconcerned with the truth or otherwise of any allegation that the claimant’s car had been damaged. She was simply stating why she was the person conducting the appeal.

[315]When the claimant wrote to Ms Geddes on 12 February 2019 asking her to change her notes, it was that paragraph which she complained of (page 691). In our view Ms Geddes was right to refuse to change her letter, there was no need for her to do so.

[316]We do not consider that any reasonable worker in the position of the claimant would consider that they have been subjected to a detriment by Ms Geddes’ refusal.

[317]However, even if we were wrong in that respect, Ms Geddes refusal, we are satisfied, was motivated only by a genuine (and reasonable) belief that there was no need to change the letter. She was not motivated by any disclosures which the claimant had made.

[318]We do not find that the claimant was subject to any detriment in this respect and, if she was, we are satisfied that Ms Geddes’ actions were not influenced by the disclosures. This allegation fails. Paragraph 10(xi)- The allegations against the claimant were changed in the course of the disciplinary process

[319]There was some difference in the allegations between the letter of 10 December 2018 and letter of 5 February 2019 as set out above. We do not consider the difference to be particularly significant but, there is, undoubtedly a difference. The 2nd allegation of the letter of 10th December does not appear, at all, in the letter of 5th February.

[320]We accept the explanation of Ms McIntosh as to how the letter of 5 February 2019 came to be written. She simply reviewed the file and created the charges as she considered appropriate. We are entirely satisfied that she was not influenced by the disclosures which the claimant had made.

[321]Ms McIntosh struck us as somebody who was concerned to do the right thing and follow the right processes and was concerned for the welfare of the companions who worked at or resided with the respondent. We found her to be a compelling witness and there is no evidence that she was influenced by the disclosures made by the claimant.

[322]Moreover, we do not think that the change of the allegations was to the detriment of the claimant. She has provided no evidence or explanation as to why she was prejudiced by the change and we do not think a reasonable worker in her position would think that they had been subject to a detriment.

[323]We do not find that the claimant was subject to any detriment in this Paragraph 10(xii) in the course of a telephone conversation on 3 January 2019, Ms Greaves called the claimant a liar.

[324]As we have set out above, the respondent’s letter of 19 December 2018 inviting the claimant to a meeting on 4 January 2019 in respect of her grievance appeal, was sent to an old address for the claimant.

[325]As a result, the respondent had not heard from the claimant and so Ms Greaves was asked to telephone the claimant on 3 January 2019 to chase matters up. We observe that if the respondent was seeking to avoid the claimant attending at the meeting by sending the invitation to the wrong address, it need not have telephoned her on 3rd January.

[326]The claimant says that when Ms Greaves telephoned her, she was very aggressive with the claimant and asserted that the claimant had received the letter and signed for it and was a liar.

[327]Ms Greaves made a contemporaneous note of the conversation which appears at page 594. She recorded telling the claimant that the appeal would take place without her and the claimant stating that would be unfair. She recorded explaining to the claimant that the letter was sent and had been signed for and states that the claimant then hung up on her. She says the claimant was aggressive in her tone.

[328]The claimant, on the same day, wrote a letter which appears at page 596. She asserts that Ms Greaves was the one with the raised voice but does not record, in that document, that Ms Greaves had called her a liar.

[329]Having heard from both participants in the conversation we prefer the version of events given by Ms Greaves and do not accept that the claimant was called a liar.

[330]In those circumstances we do not accept that she was subjected to a detriment as alleged.

[331]In any event, there is no evidence that Ms Greaves was influenced by the disclosures and we do not think that she was. She simply made a telephone call which she was asked to do.

[332]We do not find that the claimant was subject to any detriment in this Paragraph 10(xiii) the respondent deliberately misaddressed is letter of 19 December 2018 to the claimant

[333]There is no doubt that the letter was misaddressed in the sense that it was sent to the claimant’s old address. Mr Woodward states it was an administrative error and there was no benefit to either Sturts or the claimant to send letters to a wrong address.

[334]On the balance of probabilities we find that explanation to be accurate and accept it. The respondent chased the claimant on 3 January 2019 in good faith because it was concerned that it had not heard from her. Ultimately the appeal was delayed to allow the claimant to take part.

[335]In those circumstances, although there was a detriment to the claimant in the letter being sent to the wrong address we find that it was not because of the fact that the claimant had made protected disclosures but simply an administrative error. This allegation fails. Paragraph 10 (xiv) in the summer of 2018 the claimant was removed from the provision of Art services.

[336]For a time, up to the summer of 2018, the claimant was providing some artistic input to the respondents’ companions’ activities. However, we accept the respondent’s case that she was never employed as an art therapist.

[337]Ms McIntosh explained to us in detail how it was necessary to make changes to the activities offered by the respondent as a result in changes to its grant by the local authority. Those changes were discussed with companions who, in a series of meetings, set out what was important to them. As a consequence the respondent decided to utilise its resources differently and no longer sought the provision of art services from the claimant.

[338]Given that the claimant enjoyed providing art services we accept that a reasonable worker in her position would consider that they had been subjected to a detriment.

[339]However, there is no basis for finding that any disclosures made by the claimant had any relevance to the respondent’s decision. In the summer of 2018 the claimant had made, at most, 2 disclosures which had not been controversial. The decision was made in consultation with companions and was not an attempt to penalise the claimant.

[340]The fact that the claimant alleges that this was a detriment as a result of making a protected disclosure is, we find, illustrative of the fact that she now views all matters through the filter of her belief that anything that has happened to her whilst at the respondents was because of her disclosures.

[341]Thus in respect of this allegation, although we find that the claimant was the actions. This allegation does not succeed. Paragraph (xv) on 3 September 2018, the claimant’s hours were reduced.

[342]The evidence in this respect is confusing. There is a text message exchange which suggests that the claimant’s hours were to be reduced on 4 September 2018 (page 405) but the claimant has given no evidence of any specific reduction in hours and Mr Woodward denies that there was any such reduction.

[343]The matter was never followed up by the claimant, in the sense of her sending further messages or letters of complaint.

[344]On balance we find that there was not a reduction in the claimant’s hours and that any reduction in hours as evidenced by the text message of 4 September 2018 was made up with hours elsewhere in the respondent.

[345]In any event, there is nothing on which we could conclude that the reduction in hours was anything to do with disclosures that had been made by the claimant. The claimant did not suggest that was the case at the time and, in our view, this allegation is a make weight.

[346]We do not find that the claimant was subject to any detriment in this Paragraph (xvi) - the respondent falsified documents to suggest that the claimant was fully trained when she was not

[347]We do not find that this allegation is factually made out.

[348]We have heard clear evidence from Ms Hart and Ms West about the process of how certificates are awarded and do not think that the claimant would have been awarded a certificate unless she had been trained. Ms West has a specific recollection of the claimant being awarded her certificate which we accept is accurate. She recalled the claimant’s certificate being refused initially because something had not been completed and her speaking to Mr Brown about it and then the certificate being granted later.

[349]Moreover, we do not find that the certificate is a forgery in the sense that it has only been created for the purposes of these proceedings in order to suggest that the claimant had been awarded a care certificate.

[350]We find that the claimant’s evidence in this respect is wrong. We note that whilst cross-examining Ms McIntosh, the claimant put to her that she (the claimant) only had training with Ms Hart and no one else. Ms McIntosh replied to state that she had trained the claimant as part of the care certificate- in respect of safeguarding. The claimant replied “it is possible I am wrong… Because I was convinced until now but I had all training with Georgina and one day with Mr Woodward”.

[351]We think that the claimant’s recollection is wrong and that the respondent has not falsified documents or given them inappropriately.

[352]We do not find that the claimant was subject to any detriment in this Paragraph 10(xvii) Generally, from the early part of her employment Mr Woodward and Ms Hart refused to return the claimant’s greetings and were offhand towards her.

[353]Again, we do not accept the claimant’s evidence in this respect. The claimant made no complaints in this respect until these proceedings, despite having raised a grievance on 28 October 2021.

[354]Moreover, the early part of the claimant’s employment was July 2017 and the claimant made no disclosures until, at the earliest, September 2017.

[355]In any event, there is no basis to suggest that any lack of greeting in the early part of the claimant’s employment, or later, was to do with having made disclosures and to the extent that this allegation is factually accurate (which we do not accept), we are satisfied that it was nothing to do with any protected disclosures having been made.

[356]We do not find that the claimant was subject to any detriment in this Paragraph 10(xviii)- on the 14th or 15th February 2019 the respondent told the claimant’s colleagues to call the police if she came to work

[357]This allegation is partially factually accurate. On 14 February 2019 an email was sent to the claimant from the Sturts’ trustees stating that if she attempted to visit any of the properties, staff had been notified to deny her access and to call the police if she refused to leave.

[358]The background to the matter is set out above at paragraphs 130-131. The claimant did not attend alone but with Mr Jakowski. Ms West, who struck us as a diffident, even timid, personality told us that Mr Jakowski stood in the corner without introducing himself. There was a companion in the room. Ms West told us, and we accept, that she felt intimidated by Mr Jakowski’s presence and that she was a nonconfrontational person.

[359]Thus, whilst the audio recording provided by the claimant might well, taken at face value, suggest that the claimant had not done anything aggressive in attending at the respondent’s premises on 14 February 2019, when the visit is put in the context of Mr Jakowski standing in the room, we believe it was reasonable for Ms West to say that she felt intimidated.

[360]We accept that Ms West relayed her concern to the trustees and that is what led to the email being sent.

[361]In those circumstances, although the email of 14 February 2019 would be seen as a detriment by a reasonable employee, we are satisfied that it was not influenced in any way by the fact that the claimant had made disclosures but was because of her attendance at the farm that morning with Mr Jakowski and Ms Wests’ discomfort. Paragraph (xix) - The respondent sent a letter to DBS after the claimant’s dismissal

[362]We have set out above that we find, as a matter of fact, that the respondent did send a letter to DBS after the claimant’s dismissal. Given that it reported alleged misconduct, that would be seen by a reasonable worker in the position of the claimant as a detriment.

[363]We find that when staff from the respondent were in communication with J’s mother, further allegations were made by her against the claimant as we have recounted above. We accept that the respondent relayed those allegations to Safeguarding and CQC and we are satisfied that it was reasonable for the respondent to do so. Upon doing so, Safeguarding advised the respondent to relay the matter to DBS.

[364]Once Safeguarding had asked the respondent to relay the matter to DBS, it had little choice but to do so. It cannot be said that the reason for the referral was that the claimant had made a protected disclosure or that the protected disclosure had any influence on that decision at all.

[365]This, in respect of this allegation, although we find the claimant was the actions. This allegation does not succeed. Paragraph 10 (xx) – the respondent failed to disclose to the claimant her reports (within item 1 of the schedule of disclosures) despite her request. Paragraph 10 (xxi) - similarly, the respondent failed to supply those reports to the claimant even though she submitted a subject access request

[366]The claimant’s position is that a significant number of reports that she made of a whistleblowing nature were not disclosed by the respondent during the course of these proceedings or her subject access request.

[367]Orders for disclosure were made within these proceedings in the normal way.

[368]We are not satisfied that the respondent has failed to disclose any reports which the claimant made whilst working, apart from the body map which, we accept, it no longer has possession of. It appears to have been lost.

[369]However, it is fair to say that some of the file notes which the respondent relied upon during this case were not disclosed pursuant to the subject access request which the claimant made.

[370]The claimant’s witness statement does not really deal with this point stating only, in respect of a subject access request, “interestingly, CQC, despite my subject Request Access, did not want to issue this document (which I did not even know of the existence then), they only wrote that there is a report that concerns the trip but they cannot disclose it to me” (page 41)

[371]In the course of the disciplinary process, the claimant wrote to Dorothy Westerman complaining of the fact that the respondent had withheld the emailed consent from J’s mother to take photographs of J (page 657).The letter goes on to say that the disciplinary hearing should not take place without the documents listed in the subject access request.

[372]The subject access request was dated 6 February 2019 and appears at page 662 of the bundle. In respect of this issue, it does request “all reports of all forms which I have produced as a result of my employment, relating to J and his physical injuries, including reports incorporating a “body map”. There should be 3 written reports, one written report with a “body map”, approximately 3 CareSys reports.”

[373]As we have set out above (in respect of our findings about disclosures made between September 2017 and October 2018), we are not satisfied that there would have been 3 written reports by the claimant or 3 CareSys reports.

[374]At page 729, is a file note of Louise West of the respondent dated 18 February 2019 which states “Following Bernadetta’s subject access request for an email sent by [J’s mother]; Amy asked me to check all of the email accounts for the Social Enterprise Team Members who have left. The email accounts that I checked HK, HF & DB all had cleared the sent and deleted history. I checked the in boxes and only found emails from SCT Team members”.

[375]That email suggests that the respondent was taking its responsibilities under the subject access request seriously.

[376]The witness statement of Ms McIntosh states that she was responsible for compiling the data to be sent to be claimant and it was checked by an independent person before being sent. She states that the respondent fully complied with the request.

[377]Whilst we acknowledge that there may have been some deficiencies in the documents sent pursuant to the subject access request, we are not satisfied that there was any deliberate intention on the part of the respondent not to comply with the request. We are also not satisfied that the respondent was careless. Subject access requests are lengthy, time-consuming and difficult for recipients of the request because there is a need to check all of the electronic and physical records the recipient holds. The wider the request, the more difficult it is to deal with. It is not particularly surprising that mistakes are sometimes made.

[378]Thus our findings in respect of this allegation are as follows:a. we believe that the respondent has disclosed, in these proceedings, all of the claimant’s reports that it has;

b. we also believe that the respondent disclosed those reports pursuant to the subject access request;

c. we accept that there were some deficiencies in the disclosures sent pursuant to the subject access request in that the respondent did not disclose all of its file notes. We are satisfied that, although that would be a detriment to the claimant, it was not in any way influenced by the disclosures which she had made.

[379]Therefore this allegation does not succeed. Paragraph 10 (xxii) The respondent failed to carry out a return to work interview with the claimant on 8 November 2018

[380]As we have set out above, the claimant was off sick and returned to work on 8 November 2018.

[381]On the day that she returned to work the claimant was suspended at approximately 9 AM (see page 459).

[382]Given that the claimant was to be suspended, there was no reason to carry out a return to work interview on 8 November 2018. Indeed many employees would take the view that it would be inappropriate to carry out a return to work interview and then immediately suspend someone. To carry out a return to work interview might be said to generate an expectation that the person is being permitted to return to work, only for that person then to be told they are being suspended. That might be seen as playing with a person’s emotions.

[383]It is difficult to see why not being given a return to work interview was to the claimant’s detriment.

[384]Even if we were prepared to assume, for the purposes of this allegation, that a reasonable person in the position of the claimant might take the view that they had been subjected to a detriment by not being given a return to work interview, we would still have to go on to consider whether that was because the claimant had made protected disclosures.

[385]There is no evidence that anybody made a conscious decision not to carry out a return to work interview with the claimant and we find that it is more likely than not that, once Mr Doran was told to suspend the claimant when she returned to work, he never even considered carrying out a return to work meeting. Even if he had considered it, there is no basis for us to find that that either he (or anybody else) was behaving because of any disclosure made by the claimant.

[386]We do not find that the claimant was subject to any detriment in this the disclosures. The allegation fails. Paragraph 10(xxiii)- the respondent forbade the claimant to contact her colleagues except through a specific email address

[387]This allegation is factually accurate. By early 2019 the claimant was, in circumstances we will set out below, sending a large number of emails to different employees.

[388]We have referred, above, to our observation that the way the claimant presents herself is that she likes to have the last word on a subject. In the course of the hearing the claimant confirmed to the tribunal “I accept I sent a lot of emails because they say something and I have to answer if I disagree with it. They say something wrong then I have to answer it.” Ms McIntosh, in her evidence, went further and said that the claimant sent emails answering other people’s points but also ones which were not answering them. We also note that the claimant had sent the letter linking her grievance with damage to her car.

[389]It is part of the relevant background to this allegation that the claimant had made a number of protected disclosures by the time of this instruction. Where an employee has made those types of disclosures it is reasonable for an employer to want to ensure that correspondence with an employee is dealt with appropriately and nothing is missed.

[390]We are satisfied that the claimant was sending a large number of emails to different members of staff. In the circumstances which existed, it was reasonable for the respondent to want to shield its staff from receiving a large number of emails but also to collate those emails in one place so that they could be dealt with centrally. In this respect we also accept the evidence of Mr Woodward at paragraph 137 of his witness statement.

[391]If the emails which the claimant sent to the respondent were being dealt with, then it is difficult to see why it was to her detriment that she could not send emails to lots of different employees. We do not think that a reasonable worker in the position of the claimant would find that being given a central point of contact was to their detriment.

[392]However, even if we were wrong in that respect, we are satisfied that the reason for the direction was the behaviour of the claimant in sending a large number of emails to different members of staff rather than because the claimant had made protected disclosures. The relevant background included the protected disclosures but we do not find that they had more than a trivial influence on the behaviour of the respondent.

[393]We do not find that the claimant was subject to any detriment in this respect and, if she was, we are satisfied that the actions were not materially influenced by the disclosures. The allegation fails. Paragraph 10 (xxiv)- the respondent informed the police that the claimant had harassed its employees.

[394]Ms McIntosh states that after the claimant had made the protected disclosures we have referred to the claimant was still contacting Sturts, saying that it had not protected J and making allegations against J’s family. On 18 February 2019 J’s mother contacted Ms McIntosh and told her that she had spoken to the police in connection with the issue of the claimant retaining copies of photographs of J and being unwilling to return or delete them.

[395]On 18th February 2019 Ms McIntosh contacted June at Safeguarding requesting a multidisciplinary agency meeting following the claimant’s continued suggestions that the trust had not followed procedure by safeguarding J and that his parents had not accounted for the scratches. June advised that Safeguarding were closing the case as they had no concerns but recommended that Ms McIntosh contact the police (page 726)

[396]Ms McIntosh spoke to the police safeguarding officer on 19th February 2019 and informed her that the claimant was still saying that Sturts had not protected J and that she felt it was on the verge of harassment towards Sturts and also J’s family.

[397]We find that, by this time, the claimant was not behaving reasonably. She had made disclosures, including to Safeguarding, CQC and the police. To go on making allegations was not reasonable.

[398]In those circumstances it was reasonable for the respondent to take steps to protect its employees and contact the police for advice. A reasonable person in the position of the claimant would not consider that to their detriment.

[399]However, even if that was to the detriment of the claimant we find that this is a case where neither Ms McIntosh nor anybody else in the respondent was motivated by the fact that the claimant had made protected disclosures but instead were motivated by the manner of the subsequent and repeated complaints made by the claimant.

[400]Even if the claimant had relied upon those subsequent reports as protected disclosures (which she did not) and even if they amounted to protected disclosures (which we do not decide) we would be satisfied that this is a case which falls within those principles set out in Martin v Devonshires Solicitors and Panayiotou v Kernaghan and the repeated making of the same complaints in the circumstances was the reason for the report to the police, not the fact of the disclosures themselves.

[401]We do not find that the claimant was subject to any detriment in this the disclosures but by the manner of the subsequent and repeated complaints made by the claimant. This allegation fails. Paragraph 10 (xxv) – the respondent used an outside organisation to handle the disciplinary and grievance processes but ensured that it had a connection to the respondent itself rather than being entirely impartial.

[402]We accept that the respondent used outside organisations to handle the disciplinary and grievance processes. It is not, in fact, necessary for a respondent to do so and, usually, the person who deals with a disciplinary process or a grievance process could not be said to be independent from the employer, because they are employed by it.

[403]In many respects it is to the respondent’s credit that it used outside organisations. It is correct to say that those organisations had some connection to the respondent, at least in the case of Ms Darby Jenkins (who was a trustee) and Ms Westerman who had worked with Ms Darby Jenkins in the past and had a daughter who worked for the respondent. It is also correct to say that FacetoFace has an association with Peninsula who were the respondent’s legal advisers. However, it is not correct to say that Ms Geddes or Lester Aldridge had a connection with the respondent and the claimant’s attempt to link Lester Aldridge to the respondent because it had donated a raffle prize in the past goes nowhere.

[404]Given that it is not necessary for the people who carry out disciplinary and grievance processes to be wholly independent from an employer, we do not see that the claimant was subjected to any detriment in this case. A reasonable worker in the position of the claimant would take the view that the respondent was acting reasonably.

[405]In any event, there is no evidence that, and we do not find that, there was any link between the claimant making protected disclosures and the choice of people to carry out disciplinary and grievance processes.

[406]We do not find that the claimant was subject to any detriment in this Unfair Dismissal

[407]We must consider whether the sole or principal reason for the claimant’s dismissal was the fact that she had made protected disclosures.

[408]We are satisfied that Ms Westerman genuinely believed that the claimant was guilty of the 2nd and 3rd allegations made against her, namely that she continued to have photographs of J without consent and she had not followed the safeguarding procedures when she approached J’s mother directly. Given the admissions which had been made by the claimant as to her behaviour, there were reasonable grounds for that belief.

[409]The claimant made some compelling points during cross-examination of Mr Westerman as to why the dismissal may have been procedurally unfair. She explored the lack of an investigatory stage to establish the claimant’s explanation, the lack of time which she had to prepare for the disciplinary interview and the failure to give her a chance to obtain an interpreter. However, we must bear in mind that the question for us is not whether the dismissal was fair or unfair but whether the sole or principal reason for the dismissal was that the claimant had made protected disclosures.

[410]Having heard Ms Westerman give evidence we find that she was motivated by what she considered to be gross misconduct on the part of the claimant by keeping photographs of J without consent and approaching J’s mother directly. We do not find she was influenced, at all, by the protected disclosures.

[411]Moreover this is not a case where Jhuti applies and we should attribute the motive of any other person to the decision-maker. Firstly, we do not find that any other person was motivated by the disclosures, except in respect of Mr Woodward failing to have a separate investigatory stage to the disciplinary process as set out above. Secondly, Ms Westerman was not dependent upon Mr Woodward for the source of the underlying facts. They were largely undisputed. There was no doubt that the claimant had taken photos of J on her own phone, there was no doubt that she had sent the WhatsApp message to Ju’s mother and which caused her distress and there was no doubt that the claimant was refusing to delete the photographs on her phone.

[412]In those circumstances the claim of unfair dismissal must fail. Indirect Discrimination

[413]The issues in respect of indirect discrimination are identified in paragraph 23 of Employment Judge Salters case management order.

[414]Two PCPs have been identified. The first is admitted and is that the conduct of the internal processes and procedures, including the disciplinary hearing, took place in the English language. That PCP is admitted by the respondent.

[415]The 2nd PCP alleged that the claimant was only given one day to prepare for the disciplinary hearing which was insufficient time.

[416]The respondent denies that the 2nd alleged PCP is, in fact, a provision criterion or practice because, it says, the decision by Ms Westerman to proceed with the disciplinary hearing was a one-off decision made by her on the facts as she perceived them to be at the time. We agree with that submission. We note that Ms Westerman’s intention was to give 2 days’ notice and, therefore, her usual practice was not to give only one day for preparation. The fact that notice of the hearing was only sent later in the day is not an act which has an element of repetition about it but was, at its highest, a one-off flawed application of a disciplinary procedure.

[417]Although we have received no evidence on the point, we consider it selfevident that the application of a PCP of conducting disciplinary proceedings in English would put Polish nationals at a disadvantage when compared with people who were not Polish. British people whose first language is English, will generally be more at ease in a disciplinary process conducted in English than Polish people will be. Moreover whilst we are mindful of the fact that language and the ability to speak language is not a constituent of the characteristic of race as defined by section 9 of the Equality Act 2010, we find that most (although not all) British people speak English as a first language. Thus Polish people are put at a particular disadvantage compared with British people.

[418]It is not an answer to say that the tribunal should consider Polish people who are doing English speaking jobs and who would therefore be able to understand English. Once proceedings move to a disciplinary stage, the language tends to become more formal and is language which is not usually encountered in day-to-day roles. One only has to read the ACAS code to see references to language which would be unfamiliar to most workers. Even references to “misconduct” and “investigatory meeting” and “a statutory right to be accompanied” would be more difficult for a Polish person than a British person whose first language was English.

[419]Moreover even if the comparison should be between Polish workers and all non-Polish workers (not just British ones), given that most of the national workforce is British, the answer is the same. We have not been provided with a statistical breakdown of the respondent’s workforce but it has not been suggested that it is in some way non-typical.

[420]Thus we find that the 2nd issue identified by EmploymentJudge Salter, namely that the 1st PCP put Polish nationals at a particular disadvantage when compared with persons who do not have that characteristic is resolved in favour of the claimant.

[421]There is no doubt that the respondent applied the PCP to the claimant.

[422]The final question is whether the application of the PCP put the claimant at that disadvantage. In this respect the respondent makes 2 points. Firstly, it says, the claimant had a high level of English and would not have been disadvantaged and, secondly, it submits that the respondent would have accepted an alternative person as an interpreter on behalf of the claimant.

[423]In respect of the first point, it seems, initially, that the respondent’s submissions are powerful. We repeat the evidence set out above that the claimant was able to perform well in interview in English and did not require translation during the grievance processes. However the claimant drew our attention to a section of the transcript of the disciplinary hearing where the following exchange takes place: DW: That's not what you said. That's not what you said. You said BS: No. I said not specific what was told me Henning or Tim, Dan, it was misunderstood. That's why I asked you about someone who will be sitting here and helps me to speaks to you because sometimes I can't say really what I want to say. (Page 677)

[424]There is also an exchange later in the hearing when Ms Westerman says that she will adjourn the meeting now and might reconvene it. The claimant asks “What it mean, I don't understand this word?” (Page 682).

[425]Having considered those extracts, we find that the claimant was at a disadvantage compared to a non-Polish person who would, most likely, have English as their first language.

[426]The respondent’s second point is right, in that the claimant could have attended with a translator. The respondent would not have resisted that. However the lack of notice of the hearing meant that was likely to be impracticable for the claimant to attend with an interpreter and she was, therefore, at a disadvantage.

[427]It might be said that the disadvantage suffered by the claimant was a combination of the PCP of conducting proceedings in English and the late notice of the disciplinary hearing. Nevertheless, even though we accept that it was both of those factors combined that led to the disadvantage which the claimant suffered, it was the application of the PCP of conducting the disciplinary proceeding in English that caused the disadvantage on the day in question. Having chosen not to adjourn the proceedings as the claimant requested, the respondent then applied the PCP of conducting the proceedings in English - which caused the claimant’s disadvantage. The same disadvantage was suffered by the claimant in respect of the disciplinary appeal.

[428]The respondent then seeks to justify the application of the PCP by asserting (in Counsel’s closing submissions) that the respondent had a legitimate aim of concluding disciplinary matters without delay, thereby promoting organisational effectiveness. That is, we accept, a legitimate aim however the respondent could have adjourned the proceedings by a day or two in which case the claimant could have attended with an interpreter. The PCP of conducting proceedings in English is only proportionate to the aim of promoting organisational effectiveness if individuals are given enough notice of meetings to obtain their own translators. Thus the application of the PCP was not proportionate in this case.

[429]The claim of indirect discrimination succeeds.

[430]However, the tribunal is of the view that the disadvantage to the claimant within the disciplinary process was relatively limited. The transcript shows that the claimant was able to engage effectively for most of the disciplinary hearing and was able to understand what was going on. We are satisfied that the outcome would have been the same even if the claimant had been provided with an interpreter or the proceedings had been conducted in Polish. Financial Penalty

[431]Employment Judge Salter identified, as an issue, the question of whether or not there were any aggravating features to any breach of the claimant’s rights so that a penalty should be imposed under section 12A Employment Tribunal Act 1996. Whilst there has been a breach of the claimant’s rights as identified above, we do not find that there are any aggravating features in this case. The employer is relatively small, any breaches were relatively short lived and we are satisfied that the actions were not committed with any malice. In respect of the detriment due to having made a protected disclosure, we find that Mr Woodward’s actions were born of frustration rather than malice. We do not find any repeated breaches.

[432]In those circumstances we do not make any financial penalty award in this case. Overall Conclusions

[433]We find that the claimant made protected disclosures as follows:a. To Dan Brown in or about May 2018 that J had scratches/red marks on his face and arms.

b. In completing a body map of J sometime between September 2017 and October 2018.

c. In a conversation with Jon Saunders in early summer 2018.

d. Within her letter sent to Tim Woodward dated 28th October 2018.

e. On 13 November 2018, in a telephone conversation with Jon Saunders.

f. In a telephone call to Dorset County Council on 13 November 2018.

g. In a meeting/s with the CABx where she obtained legal advice.

h. By a telephone call to the CQC on or around 17 November 2018.

[434]We find (by a majority) that the claimant was subjected to a detriment as a result of making the disclosures to Dorset County Council in that Mr Woodward failed, partly as a consequence of that disclosure, to carry out the investigatory stage of the disciplinary process. The claim succeeds to that extent. The tribunal is, however, unanimously satisfied that the claimant would still have been dismissed.

[435]Apart from as set out in the foregoing paragraph, we do not find that the claimant was subjected to a detriment as a result of the protected disclosures and the claim is dismissed that extent.

[436]We find that the claimant was not dismissed for the sole or principal reason that she had made a protected disclosure and the claim of unfair dismissal is dismissed.

[437]We find that the claimant was indirectly discriminated against when she was not allowed an interpreter at the disciplinary hearing.

[438]We do not award any Financial Penalty.

[439]The claim will now be listed for a remedy hearing. Employment Judge Dawson Date 12 October 2021 Judgment sent to parties: 28 October 2021 Appendices- Decisions Given Orally During the Course of the Hearing Appendix 1

the Hearing

[1]This is our decision on the claimant’s application to adduce a further 200 or so pages excluding an ACAS guide5. The application is made at the start of day 3 of the hearing in circumstances where Mr Allsop points out the claimant has already adduced an additional bundle at the outset of the hearing and the application does not comply with the terms of Employment Judge Gray’s directions.

[2]The claimant is not asking us to read the documents but simply wants to be able to refer to them when cross examining the respondent’s witnesses. We are told that they all originate from a subject access request made of the respondent in 2019 which means that they are documents that the respondent is familiar with. The respondent says it would be prejudiced if we granted the claimant’s request because it would have to collate the documents and send them to its witnesses for consideration. It says that will cause inconvenience and cost. Given that we have been told that the documents were all emailed to the respondent’s solicitor this morning, that collation will not be significant. We accept it will be unsettling for the respondent’s witnesses. To the extent that the grant of the application causes the respondent prejudice in respect of costs, applications can be made in due course.

[3]We accept there will be prejudice to the claimant if she cannot refer to all of the documents that she wants to, she will feel as though the case has not been fully heard and she may not be able to prove the points that she would wish.

[4]We are obliged to apply the overriding objective. It seems to us that there is very little good reason for the claimant’s late application but we think the overriding objective indicates the claimant should be allowed to ask the respondent’s witnesses questions based on the additional documents, having regard to the balance of prejudice.

[5]Our decision is on the express basis that it is the claimant’s responsibility to attend tomorrow morning with five copies of the bundle in addition to her own copy. The bundle must be indexed and paginated and there will be no increase allowed in the time for cross examination of the respondent’s witnesses. Given that the claimant is also asking us to listen to recordings which she will play to the respondent’s witnesses, she should not underestimate the task she is setting herself. Appendix 2 5 We are told 300 pages including the guide.

the Hearing

[1]This is the decision on the running order for witnesses, given on 27 September 2021.

[2]On Friday 24 September 2021, we asked the respondent what order it would be calling its witnesses today and the note of all the Tribunal panel is that it told us that it intended to call Ms Derby-Jenkins, followed by Jon Saunders, followed by Ms Greaves, followed by Ms McIntosh.

[3]This morning, the claimant said she thought Ms McIntosh was going first and that is what she wanted to happen. She asked us to make the respondent call the witnesses accordingly. The respondent resisted the application.

[4]It has been explained to us, by the respondent, that Ms Derby Jenkins does not work for the respondent and has rescheduled appointments to be here. Ms Greaves is also no longer employed by the respondent although in fact she is not available until this afternoon and therefore that carries less weight. Mr Saunders is employed by the local authority as an Occupational Therapist and therefore will have other commitments.

[5]We have considered our powers under rule 41 Tribunal Rules of Procedure and the case of Barnes v BPC (Business Forms) Ltd

[1975] IRLR 313

, and having regard to the overriding objective we think it is appropriate for the respondent to be able to call the witnesses in the order it wants to. That is the normal way a hearing is conducted and although we regret that might somewhat inconvenience the claimant, the running order was made very clear on Friday. We see no reason that the respondent should be caused difficulty in calling its witnesses or forced to present the case in a different way to the one it wishes.

[6]The claimant has, also, made an application to adduce additional photographs of the injuries to the service user J. She says that the ones in the bundle do not show how serious the injuries were and, having studied law books and in particular books on forensic evidence, she wishes to adduce further evidence to show that the injuries of J were caused by a third party. She says that was anticipated by the decision of Employment Judge Livesey on 19 August 2021 and that Mr Roath was required to put them in the bundle.

[7]We do not grant that application. The main reason that we do not is because it is not of primary concern to us who caused J’s injuries. It is not for us to conduct that kind of enquiry. The question for us is whether the claimant reasonably believed that she was disclosing information that tended to show risk to a person’s health and safety and that it was in the public interest to make the

[8]We do not think that photographs of the type the claimant wants to adduce help us in that enquiry.

[9]We also take account of the fact that this point has only been raised on the sixth day of the hearing after the claimant’s case has finished and when some of the respondent’s witnesses have been called. If the evidence is relevant, it is clearly to the respondent’s prejudice if the claimant cannot be asked about the photos and if some of its witnesses have already given evidence and cannot be asked about them. Appendix 3 1. This is the decision on the claimant’s application to enter into the evidence a hard copy of a course book in relation to her care certificate. 2. The history to the application is that on the first day of the hearing, the claimant sought to rely upon an additional bundle running to 101 pages (but including her statements). That was allowed. 3. On the third day of the hearing, the claimant applied to adduce an additional 300 pages of evidence that had come to her pursuant to a subject access request. We determined that application in her favour as long as copies were provided. 4. After we had given that decision, the claimant then said that she would like to bring the whole of a care book to the hearing. We directed that we would consider that application if and when the claimant brought the book to the hearing. 5. At the start of 28 September 2021, being the 7th day of the hearing, the claimant attended with the book and asked to adduce it. At that stage we indicated that the claimant would need to make copies so that all of the witnesses would be able to see the book as well as the tribunal and counsel (enabling the respondent to see the book that she was relying upon) and when she had done that we would consider the application. 6. The claimant, towards the end of the 7th day, indicated that she did not wish to have to copy the book but effectively wished to adduce the book as an exhibit. Mr Allsop resisted that. He stated that his client would have wanted to consider it and would have wanted to adduce comments from his witnesses on it and have wanted to ask the claimant about it. He says the book was not disclosed. The claimant says that the book was disclosed to the extent that she referred to it during preliminary hearings. Even if the claimant did refer to it in that way, it was not in the 800 plus page bundle that we were given at the start of the hearing or in the claimant’s additional bundle which we accepted at the start of the hearing. It was, apparently, not in the extra 300 pages of documents which the claimant sent to the respondent but which we have not yet seen. 7. Even if we had decided the claimant’s application this morning on the basis that she wanted to adduce the book as an exhibit, we would have been forced to refuse it. It is simply not fair to the respondent that the evidence is adduced when the claimant cannot be asked anything about it and most of the witnesses have given evidence. It would derail the hearing to re-call the claimant and relevant witnesses and there would be no chance of finishing the hearing in the time allowed. In those circumstances the Tribunal does not allow the claimant to exhibit the book as further evidence. 8. After delivering that decision, the claimant then applied to adduce a few pages of photographs, seemingly originating on her old phone to prove a point. For the same reasons it is too late now to be adducing further evidence. There has to come a point where the Tribunal say that the production of new evidence is closed and the case will be decided on the evidence that all of the witnesses have had the chance to comment on.

[1]By this judgment, we award damages to the claimant in respect of the successful claims set out in our judgment of 12 October 2021. We are told that the claimant has appealed to the Employment Appeal Tribunal in respect of that judgment but we have not seen the grounds of appeal and the claimant has not asked us to take any matters arising from that appeal into account, except that she did seek a postponement of this remedy hearing which was refused for reasons given at the time.

[2]Directions had not been given in respect of this hearing because the previous hearing had been listed in respect of liability and remedy. In those circumstances the Tribunal understood that all of the relevant evidence was before it. However, at the outset of the hearing the Tribunal was provided with two separate bundles, one from the claimant and one from the respondent. The claimant asked to work from her bundle and we permitted her to do so and referred to that bundle except where relevant documents only appeared in the respondent’s bundle. When appropriate we also took account of the respondent’s bundle, although there was a significant overlap between the bundles.

[3]The claimant had not provided a further witness statement and, therefore, the tribunal relied upon her previous statement as her evidence in chief along with the relevant medical and other evidence in her additional bundle which was served on the morning of the hearing and the detailed schedule of loss. The respondent did not seek to cross-examine the claimant in respect of those matters. The respondent called no evidence and did not seek to refer to any of the previous evidence of its witnesses in its submissions.

[4]We heard submissions from the respondent and the claimant. The proceedings were translated throughout. At one point the interpreter drew to the tribunal’s attention the fact that the submissions were going too quickly to allow for translation. We asked counsel to repeat those matters which the interpreter had not understood and asked the interpreter to inform the tribunal if any matters were going too fast for him to translate in the future.

[5]The respondent made submissions for approximately one hour. The claimant made submissions for 1 hour and 15 minutes. In addition to the claimant’s oral submissions, the tribunal took into account the claimant’s schedule of loss setting out her claims at pages 1 to 10 of her bundle as well as the other documentation. Issues

[6]The claimant claims sums in respect of financial losses as a result of discrimination, injury to feelings, psychiatric injury, aggravated damages, an ACAS uplift and interest. In addition the claimant’s schedule of loss claims sums in respect of a “preparation time order” which the claimant addressed us on in her submissions.

[7]Pursuant to our earlier judgment, we are awarding compensation to the claimant in respect of;a. the failure by the respondent to go through an investigatory stage in respect of her dismissal because she made a protected disclosure (paragraphs 272 to 280 of the previous reasons apply) and

b. for indirect discrimination in respect of the failure to allow her sufficient time to arrange for an interpreter to be present at the disciplinary hearing and the disciplinary appeal (paragraphs 122-126, 134 and 413 to 430 of the previous reasons apply). Law Indirect Discrimination

[8]In respect the claim of indirect explanation we have considered sections 124(4) and (5) Equality Act 2010 which provide: (4) Subsection (5) applies if the tribunal—(a) finds that a contravention is established by virtue of section 19, but

(b) is satisfied that the provision, criterion or practice was not applied with the intention of discriminating against the complainant. (5) It must not make an order under subsection (2)(b) unless it first considers whether to act under subsection (2)(a) or (c).

[9]We have also considered `the case of JH Walker v Hussain

[1996] ICR 291

, where the EAT stated “In our view, as a matter of ordinary English, “intention” in this context signifies the state of mind of a person who, at the time when he does the relevant act (i.e., the application of the requirement or condition resulting in indirect discrimination)(a) wants to bring about the state of affairs which constitutes the prohibited result of unfavourable treatment on racial grounds; and

(b) knows that that prohibited result will follow from his acts. In our view, section 57(3) of the Race Relations Act 1976 is not concerned with an inquiry into the motivation of a respondent, i.e., the reason why he did what he did. It is concerned with the state of mind of the respondent in relation to the consequences of his acts. He intended those consequences to follow from his acts if he knew when he did them that those consequences would follow and if he wanted those consequences to follow”. Injury to Feelings

[10]In Al Jumard v Clwyd Leisure Ltd

[2008] IRLR 345

the EAT held at paragraphs 48-51: However, we do accept that the argument advanced by Mr Roberts, who represented the claimant, that in this case the tribunal ought to have considered the two elements of race and disability discrimination separately. We recognise that where more than one form of discrimination arises out of the same facts, it can be artificial and unreal to ask to what extent each discrete head of discrimination has contributed to the injured feelings, and there will be no error of law where the tribunal fails to do that. We respectfully agree with the decision of the EAT (Morison P presiding) in Khanum v IBC Vehicles Ltd [1999]

UKEAT/685/98

paragraph 17 to like effect. Of course, where discriminatory heads overlap, it is not simply a case of treating both forms of discrimination wholly independently and then adding the sum for each; the degree of injury to feelings is not directly related to the number of grounds on which discrimination has occurred. It may be, for example, that a tribunal takes the view that the injury to feelings in, say, a case of race and disability discrimination is not materially different from the injury that would have been experienced had it been race alone. However, where, as in this case, certain acts of discrimination fall only into one category or another, then the injury to feelings should be considered separately with respect to those acts. Each is a separate wrong for which damages should be provided. Apart from that, it will help focus the tribunal's mind on the compensatory nature of the award. We would suggest for example, that it would not at all follow that the level of awards should be the same for different forms of discrimination. The offence, humiliation or upset resulting from a deliberate act of race discrimination may quite understandably cause greater injury to feelings than, say, a thoughtless failure to make an adjustment under the Disability Discrimination Act. Having said that, the courts have emphasised on a number of occasions, not least in Vento itself (paragraph 68), that at the end of the exercise the tribunal must stand back and have regard to the overall magnitude of the global sum to ensure that it is proportionate, and that there is no double counting in the calculation.

[11]The general principles in relation to the appropriate award for injury to feelings are set down in Prison Service v Johnson

[1997] IRLR 162

and include that;a. Awards are compensatory and should be just to both parties. They should compensate fully without punishing the discriminator.

b. Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could be seen as the way to untaxed riches.

c. Awards should bear some broader general similarity to the range of awards in personal injury cases – not to any particular type of personal injury but the whole range of such awards.

d. Tribunals should take into account the value in everyday life of the sum they have in mind, by reference to purchasing power or by reference to earnings.

e. Tribunals should bear in mind the need for public respect for the level of awards made.

[12]We have considered the bands of compensation set down by the Court of Appeal in Vento v Chief Constable West Yorkshire

[2003] IRLR 102

and the updated awards set down in the 1st addendum to “Presidential Guidance: Employment Tribunal Awards for injury to Feelings and Psychiatric Injury Following De Souza v Vinci”.

[13]In respect of the lower band, awards of between £900-£8600 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. In respect of the middle band, an award of £8600-£25,700 is appropriate for serious cases but those which do not merit an award in the highest band.

[14]We considered the latest edition of the Judicial College Guidelines in respect of personal injury awards. We noted that in respect of post-traumatic stress disorder for a less severe case where a virtually full recovery would be made within one to 2 years and only minor symptoms would persist over any longer period an award of £3710-£7680 was appropriate. We also considered the guidance in respect of whiplash injuries and noted that in respect of injuries where a full recovery takes place within 3 months and a year the appropriate bracket is £2300-£4080 and where a full recovery takes place within a period of about 1 to 2 years an award of £4080 to £7410 is appropriate. Aggravated Damages

[15]In Alexander v Home Office

[1988] IRLR 190

, 193, May LJ held that it is open to a tribunal in a discrimination case to include in the compensatory award: '... an element of aggravated damages where, for example, the defendants may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the act of discrimination.' That principle was applied in BT v Reid

[2004] IRLR 327

. Breaches of the ACAS Code

[16]In respect of the appropriate uplift under s207A Trade Union Labour Relations (Consolidation) Act 1992, we have considered that section and the decision of the EAT in Sir Benjamin Slade v Biggs

[2022] IRLR 216

and in particular paragraphs 48 and 77 thereof. Preparation Time Orders

[17]The Employment Tribunal Rules of Procedure provide as follows in respect of costs. Costs orders and preparation time orders 75.—(1) A costs order is an order that a party (“the paying party”) make a payment to—(a) another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative;

(b) the receiving party in respect of a Tribunal fee paid by the receiving party; or

(c) another party or a witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual’s attendance as a witness at the Tribunal. (2) A preparation time order is an order that a party (“the paying party”) make a payment to another party (“the receiving party”) in respect of the receiving party’s preparation time while not legally represented. “Preparation time” means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing. (3) A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings. A Tribunal may, if it wishes, decide in the course of the proceedings that a party is entitled to one order or the other but defer until a later stage in the proceedings deciding which kind of order to make. When a costs order or a preparation time order may or shall be made 76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success.

[18]It was held in Barnsley Metropolitan Borough Council v Yerrakalva

[2011] EWCA Civ 1255

[2012] IRLR 78

that “The ET's power to order costs is more sparingly exercised and is more circumscribed by the ET's rules than that of the ordinary courts. There the general rule is that costs follow the event and the unsuccessful litigant normally has to foot the legal bill for the litigation. In the ET costs orders are the exception rather than the rule. In most cases the ET does not make any order for costs.”

[19]Harvey on Industrial Relations summarises the position in relation to the general approach to costs as follows: “there is an initial two-stage process involved in making a costs order:(a) there must be a finding that the statutory threshold under r 76(1)(a) or (b) has been met, and

(b) if it has, the tribunal must then consider whether it is appropriate to make an order in all the circumstances, ie in the exercise of its discretion (see Ayoola v St Christopher's Fellowship

UKEAT/0508/13

(6 June 2014, unreported) at paras 17–18; Robinson v Hall Gregory Recruitment Ltd

[2014] IRLR 761

, EAT, at para 15). It is only when these two stages have been completed that the tribunal may proceed to the third stage, which is to consider the amount of the award payable under SI 2013/1237 Sch 1 r 78 (see Haydar v Pennine Acute NHS Trust

UKEAT/0141/17

(12 December 2017, unreported), at para 25). What is not permissible is for the tribunal to proceed from the first stage to the third without considering the second; that is, it must not assume that, because there are grounds for making an award, a costs order must therefore be made”. (Division PI Practice and Procedure/1. Employment Tribunals/ZB. Costs, Preparation Time, Wasted Costs/(6) Considerations relevant to costs and preparation time orders) Findings of Fact & Awards General Findings

[20]There is no doubt that the claimant was very upset as a result of the things that she perceived happened to her during the course of her employment with the respondent. It is also not disputed that the claimant has depression and anxiety and has received treatment for those conditions.

[21]As we explained to the claimant, we may only award compensation for those matters which we have found proved. One difficulty for us is that the claimant has made no real attempt (or has been unable) to address the specific matters which we have found proved, despite serving an updated schedule of loss and a significant amount of documentation in respect of this hearing. In some respects that is not surprising, even taking account of our findings it is bound to be difficult for the claimant to say how she felt in respect of particular incidents when she believes that she has been the victim of a much larger amount of detrimental treatment. The claimant’s submissions were mainly around her perception that she was treated badly by the respondent in numerous ways and the fact that she has suffered as a result, causing significant depression and anxiety.

[22]We must do the best we can on the evidence which we have. In some respects the allegations that we have found proved are linked. They all relate to the disciplinary process in that, firstly, the claimant was not allowed an investigatory stage in the disciplinary process and, secondly, the disciplinary hearing and the appeal were conducted in English and the claimant was not permitted sufficient time to obtain an interpreter. We found that the claimant was not put at a disadvantage by not being allowed an interpreter in the grievance process (see paragraphs 93, 101, 120 and 423 of our reasons; the claimant agreed in her evidence at the liability hearing that she was granted the postponements that she requested in respect of the grievance process).

[23]The failures by the respondent are not insignificant, a disciplinary process is always stressful for an employee and where the process fails an employee is bound to be caused distress. That is particularly so when the failure is because of the fact that the claimant had made protected disclosures and because of discrimination (albeit indirect in this case). Findings in respect of Indirect Discrimination

[24]In respect of the claim of indirect discrimination, we must consider whether or not the respondent applied the relevant PCP with the intention of discriminating against the complainant. In this respect it is necessary to address the disciplinary hearing and the appeal separately since the PCP was applied at both stages.

[25]In respect of both stages, we find that the respondent was deliberate in its actions in conducting the proceedings in English, in circumstances where it knew the claimant could not bring an interpreter. It refused to allow an adjournment which would have allowed the claimant a translator.

[26]In respect of the disciplinary hearing, we have found that the respondent’s desire (through Ms Westerman) was to move proceedings along (paragraph 286 of our reasons), it did not have any active desire to conduct the proceedings without a translator. If the claimant could have attended with a translator at short notice then that would have been permitted. Thus we are minded to accept the respondent’s submissions that it did not act with the intention of discriminating against the claimant for the purposes of section 124 Equality Act 2010.

[27]However, even if that is right, we must still consider whether it is appropriate to make an award of compensation in this case.

[28]We must, firstly, consider whether we should make a declaration or recommendation in this case. We consider that we should make a declaration that the claimant was the subject of indirect discrimination. Whilst we consider that, in the future, the respondent should ensure that employees whose first language is not English have a reasonable opportunity to bring a translator to disciplinary meetings if they are conducted in English, we cannot make a recommendation to that effect within the meaning of section 124(3) Equality Act 2010 since an appropriate recommendation is defined as a recommendation that within a specified period the respondent takes steps for the purpose of reducing the adverse effect on the complainant. The discrimination which the claimant suffered is now in the past and the respondent can take no steps to reduce the adverse effect of it.

[29]Having considered making a declaration and a recommendation, we must consider whether it is appropriate then to award compensation.

[30]We consider that it is appropriate to do so. When the claimant requested time to arrange a translator, the respondent (or its agents who were conducting the process) should have taken stock and realised that it was appropriate to grant that time. We have already stated that the claimant was in a vulnerable position insofar as she was going through a disciplinary process and facing dismissal. Her request should have been granted and it is appropriate for the claimant to be awarded compensation.

[31]In respect of the appeal, we did not make any specific findings at the liability stage about the intention of the respondent in not allowing a sufficient adjournment. The evidence of Ms McIntosh deals with the adjournment of the appeal at paragraph 59 of her witness statement. She states that the appeal had been postponed once and advice from Peninsula was that the claimant had had enough time to find a translator should she need one. We consider that the burden is on the respondent to prove its intention in this respect but the evidence of Ms McIntosh, (which we have been given no real reason to doubt, see paragraph 321 of the reasons) does, on the balance of probabilities, suggest that the respondent did not have the relevant intention for the purposes of section 124(4) Equality Act 2010. Accordingly we find that the discrimination was not intentional. Nevertheless, for the same reasons we have given in respect of the disciplinary hearing, we consider it is appropriate for an injury to feelings award to be made in this case. The respondent should have taken stock and allowed the claimant the time that she sought. Findings in respect of ACAS uplift

[32]In respect of the claim for an uplift under the ACAS code, the claimant has set out a number of breaches which she says mean an uplift should be awarded (page 8 of her bundle).

[33]Most of the claimant’s allegations are inaccurate. We will go through them. The claimant’s suspension did not amount to a breach of the ACAS code, the respondent was entitled to suspend the claimant in the circumstances which existed. We do not consider that there was any unreasonable delay following the grievance meeting. The claimant was allowed an appeal to the grievance decision, it was heard by Ms Geddes. We do not find that the respondent acted inconsistently, we have set out our findings in relation to the changes to the disciplinary allegations. We do not consider that those changes amounted to inconsistent behaviour in the way alleged. We agree that there was insufficient investigation prior to the disciplinary hearing and that the claimant was not given a reasonable amount of time to prepare for the disciplinary hearing, she was only given one working day and that did not allow her to have an interpreter present. We do not agree that the disciplinary hearing was rushed (by a majority). We are not satisfied that the procedures were conducted unfairly, except to the extent we have stated. It is not a breach of the ACAS code for the employer to dismiss the claimant, even if a tribunal subsequently finds that dismissal was too severe. We have not made any such finding in any event. We are not satisfied (it not having been argued before) that the external HR adviser did not have the authority to dismiss the claimant.

[34]To use the wording of s207A Trade Union and Labour Relations (Consolidation) Act 1992, it does appear to us that there was a failure to comply with the ACAS Code in thata. there was insufficient investigation and

b. the claimant did not have time to prepare for the disciplinary hearing and appeal hearing because she did not have time to bring a translator.

[35]Going to the factors in Sladea. It is just and equitable to award an uplift in this case, the failures of the respondent were significant even though they were limited.

b. We consider that a just and equitable percentage increase would be 10%, subject to what we say below. The two failures were significant ones, the Code gives important procedural protection to employees facing dismissal not least in requiring an investigation and in allowing employees time to prepare for disciplinary hearings. However the respondent still complied with the code in a number of respects and, generally, was acting in good faith. A higher award is not warranted on the facts of this case.

c. The uplift does overlap with the two awards of injury to feelings which we have made and we do consider that there is therefore the need for adjustment to avoid double counting. We consider the appropriate adjustment is to reduce the uplift to 5% in respect of all awards we make.

d. We do not consider that the sum of money which we are uplifting the award by is disproportionate in absolute terms. Findings and Award in respect of injury to feelings

[36]We must, first, consider whether to make a single award for injury to feelings or separate awards for the claims which have been proved. Mr Allsop urges that we should make one overall award because of the overlap between the two findings. However, having regard to the case of Al Jumard, it seems to us that there are two discrete wrongs, being in respect of the protected disclosure detriment and in respect of the indirect dismissal claim. Our starting point must be to make separate awards for the protected disclosure claim and the indirect discrimination claims but in doing so have regard to the totality of the award we make. Whilst there are two acts of indirect discrimination (in respect of the disciplinary hearing and the appeal) we consider that those two acts are sufficiently closely related to warrant a single award of injury to feelings.

[37]In respect of the detriment because of the protected disclosure, as we have indicated, that matter would have been upsetting for the claimant. It was evident from her submissions before us that she was distressed by the loss of the chance to explain herself at an investigatory stage, before the disciplinary hearing took place. She was deprived of the opportunity to advance her case in that respect, although we have found that such an opportunity would have made no difference to the ultimate outcome.

[38]In respect of the indirect discrimination, the claimant was impeded in conducting the disciplinary hearing and the disciplinary appeal insofar as she was required to conduct it in her own language. Whilst we found that the disadvantage was relatively limited, the claimant would still have felt a sense of injustice. It would have added to the distress that the claimant already felt by being subjected to the disciplinary proceedings and the discrimination would have compounded an already stressful situation.

[39]We also take into account the fact that although the claimant has not been able to prove to us that any of the specific acts found proved caused personal injury (see below), it is likely that they contributed at some general level to the claimant’s depression and anxiety.

[40]Looking at the claims discretely, we consider that the awards for both the protected disclosure claim and the indirect discrimination claim fall within the lower of the Vento bands. If we had considered the claims together, we would still have placed them in the lower of the Vento bands but at the higher end. In reaching that conclusion we have taken account of the fact that the failures on the part of the respondent did not cause the claimant’s dismissal and the matters we found proved were part of a course of conduct by the respondent which the claimant found upsetting, but which, generally, was justified.

[41]We have taken account of the guidelines in respect of personal injury, and considered the value of money and its purchasing power. Whilst keeping an eye on the totality of the award we have made, we have concluded that the appropriate award for injury to feelings in respect of the protected disclosure detriment is £4000 which must be increased by 5% to give £4200 and in respect of the both instances of indirect discrimination is £3000, which must also be increased by 5% to give £3150. We therefore make a total award of £7350 in respect of all of the claims proved. Had we simply made one award in respect of injury to feelings then it would have been an award of £7000, plus the appropriate 5% uplift. Findings in respect of Personal Injury

[42]Although there is no doubt the claimant has depression and anxiety, and had it at the relevant times, there is no evidence which links the specific allegations found to be proved with the depression and anxiety which the claimant has suffered. Indeed the causes of the depression and anxiety are not clear from the medical evidence which we have seen.

[43]We are unable to find that the allegations which have been proved caused the claimant depression or anxiety, or caused a pre-existing condition to increase in severity. The claimant herself said that the depression and anxiety was caused by many things, including her employment with the respondent from its inception.

[44]In those circumstances it is not appropriate to make a separate award in respect of personal injury, although we have, as indicated, taken account of the likely exacerbation of the claimant’s depression and anxiety within our award for injury to feelings. Findings in respect of Aggravated Damages

[45]The claimant has set out a number of matters which she says would lead to an award of aggravated damages (see page 4 of her bundle).

[46]One of the matters that the claimant relies upon, namely the issue in relation to the care certificate being falsified, is contrary to our finding of fact (see paragraph 350 of our Reasons).

[47]None of the matters raised by the claimant at page 4 of her bundle are things which we have found were done because she made a protected disclosure or because of discrimination.

[48]We will return to the complaints which the claimant makes about the conduct of the litigation when we deal with her application for costs, but we are not satisfied that the respondent has done anything which would warrant an award of aggravated damages in this case.

[49]As far as we have observed and so far as the documentation we have seen is concerned, the respondent has behaved reasonably in defending the case and the compensation which we have awarded is the appropriate compensation in this case.

[50]There is no basis for making an award of aggravated damages. Financial losses

[51]Had the claimant been granted an investigatory stage in the disciplinary process, there is no doubt that she would have wanted to make representations. That would have taken some time, although the respondent would have been entitled to limit the amount of time taken. It is also evident from our other findings that the respondent would have had to delay both the disciplinary hearing and the disciplinary appeal to allow for an interpreter to attend, although only by one day in relation to the disciplinary appeal.

[52]The respondent has called no evidence as to how long it would have taken to conduct an investigatory stage or when it could have rescheduled a disciplinary hearing for. Having considered the likelihood of the claimant wanting to make significant representations and our own knowledge of the difficulty of reconvening investigatory meetings and disciplinary meetings quickly where numerous people are involved, we find, on the balance of probabilities ,that the process would have been lengthened by 4 weeks.

[53]The respondent submitted that we should take account of the fact that the claimant was paid until the end of February 2019, even though she was dismissed on 11 February, in considering the financial losses which the claimant suffered. It says that the claimant should be treated as having been compensated in full, even if we were to find that the process would have taken longer if there had been no failure on the part of the respondent.

[54]We do not accept that submission. The respondent called no evidence as to why the claimant was paid until 28 February 2019 or what she was paid for beyond submitting the payslip which appears at page 113 of its bundle. The payslip does not really assist because, although it shows the number of hours which were paid for, it does not show why the claimant was paid for those hours and whether she was entitled to be paid for them or not. There is no clear evidence that the claimant was paid for sums that she was not entitled to in February 2019, or that the claimant would not have been paid similar sums if her employment had been lengthened by 4 weeks as set out above.

[55]We find that, had the respondent done that which it ought to have done, the claimant’s employment would have been lengthened by four weeks, so that the effective date of termination would have been 11 March 2019.

[56]The claimant’s schedule of loss states that her weekly pay for November 2018 was £299.70 and that is the sum that she has used to calculate her schedule of loss. That amount was not challenged by the respondent; no counter schedule was sent to the tribunal and no alternative amount suggested. In those circumstances we award four weeks’ pay at £299.70 per week being £1198.80. That sum is increased by 5% due to non-compliance with the ACAS code giving rise to an amount of £1258.74. Interest

[57]The respondent conceded that the claimant is entitled to interest at 8% on the awards made pursuant to the claim arising from the protected disclosure and the indirect discrimination claim. We do not go behind that concession although we were not referred to any statutory regulations in that respect.

[58]The failure to carry out the investigatory stage in respect of the disciplinary process was on 10 December 2018 when the claimant was invited straight to a disciplinary hearing (paragraph 106 of the Reasons).

[59]The acts of indirect discrimination took place, firstly, on 7 February 2019 at the disciplinary hearing and, secondly, on 27 February 2019 at the appeal hearing. We consider it appropriate to make one award in respect of injury to feelings and calculate interest from the midpoint being 17 February 2019.

[60]Thus in respect of the award of injury to feelings for being subject to a detriment because she had made a protected disclosure, interest runs from 10 December 2018 to 31 March 2022 being 1207 days. At 8%, interest on £4200 is £1111.01 (0.08/365 x 1207 x 4200).

[61]In respect of the injury to feelings award for indirect discrimination, interest runs from 17 February 2019 to 31 March 2022 being 1138 days. At 8%, interest on £3150 is £785.69 (0.08/365 x 1138 x 3150).

[62]In respect of the claim of financial losses, Mr Allsop submitted that interest should be calculated from the midpoint, by which we understand him to be referring to regulation 3 of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. We accept that submission and calculate the midpoint to be the date halfway between 11 March 2019 and 31 March 2022, which would be 19 September 2020. The number of days between 19 September 2020 and 31 March 2022 is 558. At 8%, interest on £1258.74 is £153.95 (0.08/365 x 558 x 1258.74). Preparation Time Order

[63]Although part of the schedule of loss, this is, really, an application for costs.

[64]In her oral submissions the claimant explained that once the current respondent’s solicitor started acting for the respondent, matters became much more difficult for her in terms of agreeing the bundle; she had to be active all the time. She pointed to part of the index which she had placed at page 125 of her bundle for this hearing and stated that an example of the respondent’s inappropriate conduct was the fact that she needed to show the false care certificate.

[65]We have not seen any evidence that the respondent has behaved unreasonably in the way it has conducted these proceedings. We did not accept the claimant’s evidence that the care certificate had been falsified. We accept that it is often difficult to agree an index for a bundle, not least when a page limit has been imposed upon the bundle, but the fact that something is difficult and requires intensive negotiation does not mean that the other party is behaving unreasonably.

[66]We are unable to see any basis for making a costs order against the respondent in this case. That part of the application is, therefore, dismissed. Summary

[67]We consider it appropriate to make a declaration that the claimant has been subjected to indirect discrimination because she should have been permitted time to obtain a translator for the disciplinary hearing and disciplinary appeal. We do not make any recommendation in this case since there are no steps that the respondent can take to reduce the adverse effect of the discrimination on the claimant.

[68]We consider it appropriate to award compensation arising out of the indirect discrimination.

[69]In respect of the claim of detriment because of making a protected disclosure, we award the claimant £4200 injury to feelings (including a 5% uplift pursuant to s207A Trade Union Labour Relations (Consolidation) Act 1992).

[70]In respect of the claim of indirect discrimination we award injury to feelings of £3150 (including a 5% uplift).

[71]We award compensation for financial losses arising out of the claimant’s claims which we found proved in the sum of £1258.74 (including a 5% uplift).

[72]We award interest on those sums amounting to £2050.74.

[73]We, therefore, award a total sum to the claimant of £10,659.48