Mrs L Walker and others v Office for National Statistics: 1400903/2022 and others

EMPLOYMENT TRIBUNALS

Case No 1400903/2022

Venue Bristol

Hearing 6, 7, 10 to 14, 17 to 20, 24 to 28 June 2024 plus a Tribunal only meeting on 5 and 6 August 2024

Between

Mrs L Walker and othersClaimant

Office for National StatisticsRespondent

Before

Employment Judge J Bax

In person for claimant

Mr A Lyons (instructed by counsel) for respondent

Date 4 September 2024

JUDGMENT

[1]The First Claimant’s claims of detriment on grounds of public interest disclosure are dismissed.

[2]The Second Claimant’s claims of detriment on grounds of public interest disclosure are dismissed.

[3]The Second Claimant’s claims of constructive unfair dismissal under s. 94 and 103A of the Employment Rights Act 1996 are dismissed.

[4]The Third Claimant’s claims of detriment on grounds of public interest disclosure are dismissed.

[5]The Fourth Claimant’s claims of detriment on grounds of public interest disclosure are dismissed.

REASONS

[1]In this case the Claimants claimed they had been subjected to detriments for making protected disclosures and in the case of the Second Claimant, Ms Turner, she also claimed that she had been constructively unfairly dismissed and/or automatically unfairly dismissed for making protected disclosures.

The issues

[2]The claim form was initially presented on 9 March 2022 on behalf of all Claimants. They ticked the boxes that there was not an ACAS certificate and there was an exception, on the basis that another person making the claim had a certificate. The Claimants were asked to provide supporting documents for the exemption or an ACAS certificate number.

[3]On 31 March 2022 Ms Walker sent the Tribunal an ACAS certificate dated 31 March 2022. It had a notification date of 28 March 2022. The claim was accepted and served on 7 April 2022.

[4]The Respondent presented its response on 4 May 2022, in which it said there was a substantive defect in the claim form in relation to the notification of ACAS about the dispute. The Response was accepted on 11 May 2022. The Claimants were written to informing them that if the Respondent was correct, the claim should be rejected. Reference was made to the decision in Pryce v Baxterstorey Ltd UKEAT/2020/000323/BA and the correct way to proceed would be to re-present their claims. The Claimants replied saying a mistake had been made. The claim was then rejected on 8 June 2022.

[5]On 12 June 2022, the Claimants re-presented their claim and relied on the earlier ACAS certificate and applied for a reconsideration. On 29 June 2022, Employment Judge Gray determined the reconsideration application and treated the defect as being rectified on 29 June 2022 and accepted the claim.

[6]The claim was subject to a 5 case management hearings.

[7]At the case management hearing on 10 March 2023, it appeared that the Mrs Walker and Mr Adams might also be seeking to bring claims of disability discrimination and in relation to Mr Adams a claim of Trade Union Detriment. They were ordered to provide further information in relation to those matters and to set out their basis for an amendment application. On 3 May 2023 the applications to amend the claims by three of the Claimants were dismissed.

[8]On 18 July 2023, Employment Judge Siddall listed the claims for the final hearing. An updated agreed list of issues was attached to the Case Management Summary.

[9]On 3 August 2023, Mr Adams applied to reconsider the amendment application decision.

[10]On 2 April 2024, at a case management hearing before Regional Employment Judge Pirani, the reconsideration application was listed on 24 April 2024. The Respondent was required to clarify its response in relation to time limits, protected disclosures and detriments.

[11]At the preliminary hearing on 24 April 2024, the reconsideration application was dismissed. The list of issues to be determined at the final hearing was also discussed and finalised by agreement. The Claimants agreed to consider the list of issues and confirm whether any of the allegations were withdrawn. Following the hearing some of the allegations were withdrawn by the Claimants in writing. A hearing timetable was agreed, including the days on which witnesses would be called. Mr Adams was ordered to provide further information about some of the alleged protected disclosures.

[12]The first 2 days of the final hearing were for the Tribunal to read the witness statements. The Claimants were limited to 10,000 words each. The Respondent was limited to 60,000 words in total for its 17 witnesses. Prior to the start of the hearing, the Judge asked the parties to confirm whether any other allegations were no longer pursued and whether there were any preliminary issues to be determined before pre-reading started. Some of the allegations of detriment were withdrawn by the Claimants.

[13]At the start of the hearing with the parties on 10 June 2024, the issues to be determined were confirmed and agreed.a. Mrs Walker confirmed that her alleged protected disclosure was as set out in the final list of issues and that she also relied upon Mrs Pennington’s e-mail. She confirmed that the alleged disclosure was about returning to work in the field relating to health and safety and a legal obligation, it was not about pay. The Respondent accepted that 3 passages in the e-mail could amount to information relating to health and safety, otherwise all elements were in dispute. Mrs Walker confirmed she no longer pursued the following allegations of detriment in the list of issues: 6.1.6, 6.1.12, 6.1.14 and 6.1.16. She only relied on the remaining 14 allegations of detriment.

b. Mrs Turner confirmed that her alleged protected disclosure was as set out in the final list of issues and that she relied upon Mrs Pennington’s e-mail. She said that it related to safety in going back out into the field and she was not saying the disclosure involved issues of discrimination. All elements for a protected disclosure were dispute by the Respondent. Ms Turner confirmed that she no longer pursued the following allegations of detriment in the list of issues: 7.1.6 and 7.1. She only relied on the remaining 12 allegations of detriment. Mrs Turner also claimed that she was constructively dismissed and that the last allegation of detriment was the final straw, taking into account the previous allegations.

c. Mr Adams confirmed that the protected disclosures he relied upon were those as set out in the list of issues. The list of issues recorded that it was said the information tended to show a danger to health or safety and that there had been a miscarriage of justice. He confirmed they related to safety going out into the field. Mr Adams was asked to consider whether he was saying the information tended to show a miscarriage of justice. All elements of the protected disclosure tests were in dispute. It was noted that the first disclosure was by reason of being as signatory to Mrs Pennington’s e-mail. Mr Adams confirmed he no longer relied upon detriment 9.1.13 in the list of issues and he only relied on the remaining 13 detriments set out in the list of issues.

d. Mrs Pennington confirmed that the protected disclosure she relied upon was as set out in the list of issues. She confirmed it related to safety going back out into the field. She had also referred to a miscarriage of justice and was asked to consider whether she was saying the information tended to show that. The Respondent disputed all elements of the tests in relation to protected disclosures. Mrs Pennington confirmed that she no longer relied upon the following allegations of detriment in the list of issues: 10.1.8 and 10.1.3. She confirmed that she only relied on the remaining 14 allegations of detriment

[14]During cross-examination, Mrs Walker confirmed that she no longer alleged that allegation 6.1.3 in the list of issues was a detriment and that allegation was withdrawn.

[15]During cross-examination Mrs Pennington accepted that when the incident occurred with AB on 25 November 2020 (alleged detriment 10.1.5), he did not speak about health and safety. She became very upset and lunch was taken early. After lunch she was asked whether she thought this incident had been materially influenced by her e-mail of 20 November and she responded that she did not think it was motivated by her raising health and safety concerns. It was explained that the detriment needed to be influenced by a protected disclosure and she told the Tribunal that she was not saying it was a detriment caused by a protected disclosure and withdrew the allegation. That claim was therefore withdrawn and under rule 51 and it came to an end. On 26 June 2024, Mrs Pennington raised that she would like to reinstate the allegation. It was explained, following the decision in Khan v Heywood & Middleton Primary Care Trust

[2006] IRLR 345

that the Tribunal does not have the jurisdiction to set aside notice of withdrawal under rule 51. Mrs Pennington did not seek to set aside the notice of withdrawal and re-affirmed that she had said that she did not think it was motivated by her rising concerns about health and safety.

[16]When giving evidence, Mr Adams referred to detriment 9.1.1. in the list of issues and said that it did not relate to e-mails to him, but e-mails about him. Mr Adams said he had not appreciated what the allegation said. In oral evidence, he did not identify the e-mails which he said were closing him down. When cross-examining Ms Evans, he referred to an e-mail in which he had been referred to as, ‘whipping up anxiety in the team’. It was not clear how this related to the issue at allegation 9.1.1. His explanation appeared to suggest that the e-mails were more general in nature. Counsel for the Respondent considered that a formal application to amend the allegation would be required. The Tribunal discussed matters. The Case Management Hearing on 10 March 2023 had recorded the issues, but the Claimant was required to provide further information about dates. The orders said that the issues would be taken as final if they were not corrected. At the hearing on 3 May 2023 the dates were provided and were inserted into the list of issues. The claim had been through 5 case management hearings and the alteration to the issue had not been raised. The Tribunal considered that a formal application to amend was required. Mr Adams said that he did not want to seek to amend the issue. He was informed that he could still rely on the e-mails as background to his other allegations. He asked some further questions about some e-mails, however they did not refer to, closing him down or telling him to mind his own business.

[17]Ms Billinge was scheduled to give evidence on 26 June 2024, sadly she suffered a bereavement very shortly before. It was agreed with the parties that her evidence would be heard at 10am on 26 June 2024. Mr Booth’s evidence had not concluded on 25 June 2024. It was agreed that Ms Billinge’s evidence would be interposed. On 25 June 2024, Mr Adams confirmed that he had reached a sensible point to pause his crossexamination of Mr Booth at which the evidence for that day stopped. He then picked up his cross-examination of Mr Booth after Ms Billinge had given her evidence.

[18]It was agreed with the parties that they would provide written submissions, which were to be finalised and sent to the Tribunal by 1430 on 27 June 2024. The Tribunal would read the submissions on 27 June 2024 and the parties attended on 28 June 2004 in order to make any further oral closing submissions.

[19]Before closing submissions the Claimants confirmed that the allegations which were no longer pursued were those detailed above. Mr Adams said that he wanted to maintain allegation 9.1.1 even though it was worded that e-mails had been sent to him and he was unable to point to any such emails during the course of evidence. He also confirmed that he maintained allegation 9.1.12, after indicating when giving his evidence that he would consider his position in relation to it.

[20]The initial timetable for the evidence of the Respondent’s witnesses was an underestimation of the time it would take. As a consequence closing submissions were made on the last day of the hearing. This meant that the Tribunal had to find a time when they could meet to deliberate. The earliest mutual time when the Tribunal could meet was 5 and 6 August 2024.

[21]Before the Tribunal met to deliberate, the Judge became aware that the EAT had handed down its decision in First Greater Western Limited v Moussa. The decision appeared to potentially have some relevance to the Claimants’ cases and the parties were invited to make any further submissions in relation to the authority by 9am on 5 August 2024. Both parties provided further written submissions on that point.

[22]One of the interviewers in the team raised a complaint of bullying, which was investigated. Grievances were later raised against him by the Claimants alleging racism and misogyny. This interviewer was not a witness and was therefore not able to state his own position. In these circumstances we refer to that interviewer as AB.

The evidence

[23]We heard from the Claimants. We heard from Ms Evans, Ms N Jones, Ms Fernandes, Mr Fitzek, Ms Deneen, Mr Lambert, Mr Woodland, Ms Studley, Dr Thorsteinsson, Mr Gibbons, Ms Matthews, Ms Morgan, Ms Dyer, Mr Booth and Ms Billinge on behalf of the Respondent.

[24]We were provided with a bundle which was in excess of 2,700 pages. Any reference in square brackets, in these reasons, is a reference to a page in the bundle.

[25]When Mrs Walker and Ms Turner gave evidence they had a tendency to answer questions with a question and not direct their answers to the question asked. They were advised on several occasions to answer the questions asked. They repeatedly rehearsed a narrative. At times they came across as being evasive. Mrs Turner was particularly evasive about what she meant by ‘A***’ in her messages.

[26]Mr Adams was cross-examined about whether the Claimants were acting together when raising grievances, going off sick and their appeals. He denied they were acting together, although he said he discovered that Mrs Walker was making a grievance afterwards. His own written grievance referred to Mrs Walker’s documents. Their grievances were made to Mr Lambert and Mr Diamond on the same date. They both raised historical matters against AB. He also said that he went off sick straight away because it was the best thing to do in that circumstance and he told the others to do the best thing for them. This was inconsistent with not acting together. In relation to Ms Evans trying to contact him on 23 November 2020, he said she only tried to contact him once, however his later message on the group chat he said it was by telephone and Skype. We were not satisfied he was a convincing witness.

[27]Mrs Pennington gave evidence in a straightforward fashion and made concessions where appropriate.

[28]Ms Evans’ oral evidence was consistent and she made concessions where appropriate. We were initially concerned that Ms Evans had deleted all her documentation, however we accepted her evidence that she was suffering with mental health problems, she had responded to numerous subject access requests by the Claimants, she had sent all the documentation she had and wanted no more involvement. Ms Evans volunteered this information during the internal process. We did not accept that there was an ulterior motive in this regard.

[29]Mr Gibbons gave evidence in a straightforward manner and made concessions where appropriate, we found him to be a credible witness.

[30]Ms Fernandes was consistent in her evidence. We were initially concerned that Ms Fernandes had deleted e-mails late on in the internal process. By this time she had fully responded to several SARS and had left the department. We accepted that Ms Fernandes thought that when leaving the department she had to remove all of her e-mails. We found Ms Fernandes to be a credible witness. Her involvement had been to try and reassure the Shropshire Team, which was an outlier in comparison with the other 60 national teams nationally in terms of cooperation with management about Knock to Nudge. The facts Index to the facts(a) The parties and general background: paragraphs 32 to 52.

(b) The Claimants’ e-mails dated 20 November 2020: paragraphs 53 to 81.

(d) Events of 23 November 2020: paragraphs 98 to 109.

(e) Discussions and e-mails on 24 November 2020: paragraphs 110 to 114.

(f) Events of 25 November 2020, including the meeting of that day: paragraphs 115 to 128.

(g) AB’s complaints and the events until the end of 2020: paragraphs 129 to 144.

(h) Events in January 2021 and the informal investigation: paragraphs 145 to 151

(i) The start of the formal investigations: paragraphs 152 to 171.

(j) The disciplinary investigations including alleged delay: paragraphs 172 to 195.

(k) The disciplinary hearings and outcomes: paragraphs 196 to 216.

(l) Disciplinary appeals, including alleged delay: paragraphs 217 to 233.

(m) The Claimants’ grievances generally: paragraphs 234 to 246.

(n) The grievance process and investigation for Mrs Walker, Ms Turner and Mrs Pennington: paragraphs 247 to 273

(o) Grievance meetings and outcomes for Mrs Walker, Ms Turner and Mrs Pennington: paragraphs 274 to 277

(p) Grievance appeals for Mrs Walker, Ms Turner and Mrs Pennington: paragraphs 278 to 289.

(q) Mr Adams’ grievances and conversation with Mr Fitzek: paragraphs 290 to 311.

(r) Mr Adams’ appeal against the grievance outcome: paragraphs 312 to 321.

(s) Mr Raybould’s grievance: paragraphs 322 to 344.

(t) Ms Turner’s resignation: paragraphs 345 to 348.

(u) Time limit issues: paragraphs 349 to 364.

The facts

[31]We found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties. The Claimants

[32]Mrs Walker started employment with the Respondent on 8 February 2016. At the relevant times she was a field interviewer in the Shropshire Team. Her employment ended on 14 September when she took ill-health retirement.

[33]Ms Turner started employment with the Respondent in January 2013. At the relevant times she was a field interviewer in the Shropshire Team. She resigned on 2 November 2022, with her employment ending on 2 December 2022.

[34]Mr Adams started work the Respondent in August 2013. At all relevant times he was a field interviewer in the Shropshire Team. On 2 November 2021 Mr Adams suffered a myocardial infarction.

[35]Mrs Pennington started work for the Respondent in April 2024. At all relevant times she was a field interviewer in the Shropshire Team.

[36]At all material times all of the Claimants were members of the Prospect Trade Union. Management structure

[37]Mr Woodland was Deputy Director for Social Survey Operations. He managed Ms D Williams, Head of Field Community . Ms Williams managed Ms N Jones who was the Grade 7 Head of Face to Face Field Operations .

[38]Ms Fernandes was Head of Regional Management and directly reported to Ms N Jones. Ms Fernandes line managed Ms Evans.

[39]Ms D Evans, in September 2020 became the Higher Executive Officer Field Operations Manager for the Northwest region. At this time the Shropshire team was moved to her team. She line managed Ms Hunt. Ms Evans had a good working relationship with Mrs Walker and Mrs Walker thought she was a good manager. Ms Evans also had a good working relationship with Ms Turner and Mrs Pennington. Ms Evans found Mr Adams difficult to manage, this stemmed from when she first started working in the department and shadowed Mr Adams and he had an altercation with a member of the public in relation to a parking issue.

[40]Ms Hunt line managed the Claimants

[41]In the team was an interviewer, AB. Both AB and Mr Adams applied for a temporary interview manager vacancy in early 2020, to which AB was appointed. Following the decision, Mr Adams raised a grievance about the process and that he was not appointed, this included raising grievances against Ms Evans. General background

[42]Before the Covid-19 pandemic, the Claimants would interview members of the public. They would go into the homes of members of the public and speak to them at close quarters.

[43]In March 2020, due to the Covid-19 restrictions, the Claimants no longer carried out face to face interviews. They worked from home and contacted people by letter, telephone or text messages. They were paid special paid leave to cover a shortfall in hours.

[44]All of the Claimants were aware that some colleagues had died due to Covid-19.

[45]Between May and August 2020, Ms Turner was a volunteer on the Covid Infection Survey. This involved her collecting samples from households. She would arrange a time to collect the sample from a home, knock on the door and stand back. The person would then leave the sample on the door step and go back inside. Mrs Turner accepted that health and safety was treated seriously under this programme.

[46]There had been a decrease in the number of responses by members of public agreeing to be interviewed. In July 2020 some interviewers were asked to go back into the field. By this time the Covid-19 restrictions had changed. A programme called Knock to Nudge (“KTN”) was introduced on a trial basis. KTN involved an interviewer going to a home, make a doorstep introduction and ask if a telephone interview could be done. This was done by knocking on the door, stepping back and then speaking to the occupant. If the person agreed, the interviewer would leave and then telephone the person and conduct the interview. No interviewer was required to enter an address. Ms Turner and Ms Pennington volunteered to do this. Mrs Turner did KTN work in October and November 2020 and Mrs Pennington did KTN work from August 2020 for about 2 months.

[47]The KTN trial was considered to be a success and other ONS stakeholders, such as the DWP, wanted to include it in their surveys. In Autumn 2020, Mr Woodland had approximately weekly meetings with Mr Hopper, Branch Secretary of the Prospect Trade Union. In those meetings KTN was discussed and the documents about KTN, which were later sent to the interviewers, were discussed. We accepted that Prospect was able to engage in the discussions and were informed of the plans and documentation. There was not a formal consultation, however Prospect offered opinions and understood the need for the programme. Prospect raised concerns with Mr Woodland, which he sought to address. Prospect did not object to the programme, although they also did not sign it off. A plan was made to roll out KTN more widely with effect from January 2021. The decision was made in conjunction with advice from the HSE and feedback from the KTN research team.

[48]The Claimants referred to correspondence to Prospect members dated 20 November 2020 from Mr Hopper [p275], saying it suggested that prospect were not aware of the proposal. The e-mail did not make that suggestion. There was no indication of the number of people who were concerned about the plan.

[49]On 5 November 2020, the Second National Lockdown started.

[50]Mr Woodland and Ms Williams drafted an e-mail to be sent to all field interviewers in the country. On 18 November 2020 Ms N Jones sent that email to all field interviewers. The e-mail referred to fieldwork plans from January 2021 and the KTN trial since the summer. It was stated that a return to in home interviewing would not be happening anytime soon, but it was the time to roll out KTN. It was said, “Welfare of us all is paramount, equally achieving high response rates is vital to our understanding of the country.” A KTN approach on all GFF surveys was planned from January. It was said that processes and protocols were still being finalised based on feedback, but it was expected to be similar to the trials, with fieldwork taking place on defined days in the month and a set number of calls per address. Before restarting fieldwork everyone had to have a one-to-one conversation with their line manager about their individual circumstances based on the Covid Conversation Tool (“CCT”). This was to help them identify who was willing to return to KTN work, who was clinically or extremely clinically vulnerable and unable to return and those who needed support to return. At the CCT meetings concerns about returning to the field would be addressed and the options talked through, which could include continuing work on the telephone and other appropriate work or using annual leave, unpaid special leave or career break. For all interviewers the special paid leave would end on 4 January 2021.

[51]In the e-mail there were links to the following documents and the interviewers were also told that the documents were on Reggie, an intranet platform:(a) Covid Conversation tool, setting out what would be discussed;

(b) Risk assessment from January 2021 for KTN with control measures;

(c) Draft protocol, which was a living document, setting out steps to take with planning: in the field, on the doorstep and afterwards.

(d) CCT Q&A. including that a return to the field was for KTN only. It clearly stated that if there was deficit of hours due to a lower work allocation and employees would not be penalised. it set out the reasoning, how plans would be managed and would happen if individuals couldn’t or did not feel comfortable doing it.

[52]The Claimants suggested in evidence that staff health and safety was being put on a par with data collection. We accepted Ms N Jones’ evidence that was not what was intended to be understood. It was clear from the e-mail and the Q&A that safety was paramount. The Claimants’ e-mails dated 20 November 2020 Mrs Walker’s e-mail

[53]Mrs Walker sent an e-mail on 20 November 2020 at 15:35 to Ian Bell, Nicola Jones, Debbie Evans, Ian Diamond, Carol Hunt, Kate Fernandes and others. She said the following things:(a) It’s my view and that of the union that these questions are intrusive and causing alarm and upset to interviewers. It appears this is an exercise designed to pressurise staff to return to the field when it is clearly unsafe to do so. That with the revelation that from January 2021 interviewers hours will not be made up is shocking. Will ONS ensure the staff have enough work to do, ONS must ensure no member of staff suffers financially through no fault of their own.”

(b) “Then the issue of IPS staff being on special leave since March 2020. It seems part of the workforce are being treated less favourably. The field interviewers who have continued to work from home in difficult and stressful situations are being asked to take unpaid leave or worse resign.”

(c) “They have tirelessly supported ONS only to be told as of January they will only be paid for the hours they have worked and excess hours left unpaid. This cannot be legal …”.

(d) “With regard to KTN it’s clear ONS are using government guidelines as a way to justify themselves.”

(e) “Government Guidelines differ and conflict with the science. The virus cannot move it can only move if people move about that is a fact. The R rate in this region is very high and I am concerned this seems to have been ignored.”

(f) “What safeguards are ONS going to give to those staff who decide to return to go out in the field? What happens if they contract Covid 19 as a result of their work? What support will they or their families get?

(g) “I also understand we have been likened to postal workers? It is worth noting as of August 2020 over 26,000 Royal Mail staff have been off work due to covid- 19. Sadly some died due to a lack of PPE with health and safety taking a back seat.

(h) “I cannot believe this organisation has taken this decision which has in one fell swoop demoralised the workforce.”

[54]During cross-examination Mrs Walker accepted that she had not read the risk assessment before sending the e-mail, she said no measures could negate the risk. Mrs Walker could not remember reading the KTN trial notes, the conversation tool or the Q&A about the KTN programme. She accepted in cross-examination, when it was put that the documents made clear no one was going to lose out financially, that the documents tended to suggest that. Further she accepted that that there was nothing in them suggesting they could resign. The Claimant tried to suggest that the reference to resignation would have come from an e-mail sent by Sarah Jones [p282]; the part in that e-mail referring to resignation was an extract from Mrs Pennington’s e-mail of 20 November 2022. We accepted that the Respondent made no reference to ‘resign’ in any of its documents or discussions. In Mrs Walker’s witness statement she said that the letter said that the special paid leave was ending in January and they were reverting to face to face in home interviews; this was not what Ms Jones’ e-mail said, it said there was no plan for face to face interviews. We concluded that Mrs Walker did not read the linked documents before sending her e-mail. In her witness statement Mrs Walker said that she believed it was designed to financially pressurise people to return to the field and she was concerned about the legality of the contract changes.

[55]At that time, Mrs Walker’s nephew was on a ventilator. She was aware from the television of reports of increasing deaths due to Covid. In terms of the covid conversation tool, she considered that the questions were being asked by non-medically trained people. She knew that there was not a vaccine in place at that time and that in the Midlands the number of cases of covid were rising.

[56]In cross-examination she accepted that there were going to be individual conversations about a return to the field, but said it was after a decision had been made. The e-mail dated 18 November 2020 referred to a plan, that the processes and protocols were being finalised and everyone would have a one to one meeting to discuss the matter. She accepted that some people wanted to go back out into the field.

[57]In her disciplinary appeal meeting she said Ms Jones’ e-mail was unlawful due to contract changes, she did not refer to health and safety [p1006]. In her grievance meeting she referred to that if they had not sent their e-mails the changes would have slipped through the net and the PSL arrangements were still in place and if they had not spoken up the changes would have happened and people lost out. There was no reference to health and safety [p1368]. In her grievance statement she said the changes were unlawful.

[58]Mrs Walker’s evidence was that she thought it was a bad decision and people were being pressurised, it was unsafe to go out in the Covid environment and it was dangerous. She said it was in breach of the legal obligation to provide a safe place of work. When KTN was trialled in August 2020, Mrs Walker was aware of the trials, however she did not raise any concerns. Ms Turner’s e-mail

[59]On 20 November 2020 at 16:15, Ms Turner sent an e-mail to Mr Bell, Mr Woodland, Nicola Jones, Ms Evans and Ms Hunt saying she was concerned about the e-mail dated 18 November 2020 that PSL would end from 4 January. She included, “After all the noise that ONS has been making over recent months about their care and concern for the mental well-being of their staff, I find it particularly insensitive that this crucial news was casually mentioned in passing three-quarters of the way through an e-mail about Knock to Nudge; surely information that will have financial implications for all Field Staff should have been given a message to itself?” She then referred to deficit hours being deducted from pay, when the number of hours were outside of their control. She said asked what would happen to staff not given GFF work. She referred to that matters could lead to managers being accused of discrimination or unfairness in how they allocated work . She suggested the end of PSL should be delayed until LFS work was available on KTN so that all staff had equal opportunity to work the same hours.

[60]In cross-examination, the Claimant said what was in her mind was that the removal of special paid leave was being used to coerce people to go into field and what had been said was that welfare was being sacrificed to achieve higher response rates. She said the complaint was about their safety and that of households. This was not said in her e-mail. When she was asked where references to covid-19 and health and safety were in her e-mail, Ms Turner said that it was in everyone’s mind and if writing the email today she would have written it differently and she was trying to get Mr Bell to think about a badly worded suggestion. She suggested that her concern, about coercing people to return to the field when it was not safe, was implicit. When questioned that the contents of her e-mail related to pay, she said it was a financial lever to go out. In the Claimant’s grievance interview [p1335] the Claimant referred to Ms Jones’ e-mail and referred to it being an insensitive way of announcing something relating to pay, there was no mention about health and safety.

[61]Before sending the e-mail she had read the CCT document but could not remember what else she had read. She said she was surprised the Risk assessment had not been updated, however the first time this was raised was in cross-examination. Ms Turner’s posts on yammer at this time did not refer to health and safety matters. She posted on 19 November, “If we aren’t doing KTN on LFS but we aren’t getting our hours topped up with Special Paid hours from 4th Jan, then how are we going to make up our hours? I don’t know about anyone else, but I’m finding it hard to do even 20 hours at the moment as this is solely dependent on the few households who respond to our letters/phone calls. I’ve done all the training I’m eligible for at the moment and KTN on GFF will only generate extra hours in one specific week. Will we all be getting pay cuts as we go into deficit hours?”

[62]The e-mail made no mention of coercion or concerns about safety if they returned to the field. The Claimant’s yammer posts were concerned with pay, as was her e-mail dated 20 November 2020. There was nothing within the text that suggested that there was a concern about health and safety or that legal obligations in relation to covid restrictions would not be complied with.

[63]Ms Turner had her first CCT meeting on 20 November 2020. She said that she was happy to go out as she already had been part of KTN and she would prefer being given surgical gloves and not just hand sanitiser. There were no barriers for her to return to the field. She did not want to discuss the end of PSL. On 8 January 2021, in a further CCT meeting she said that she did not want to go out that month due to the significant increase in covid cases in Shropshire and it would be irresponsible to go house to house. Mrs Pennington’s e-mail

[64]On 20 November 2020 at 16:53 Mrs Pennington sent an e-mail to over 60 people, including Iain Bell, the National Statistician, Mr Woodland, Ms D Williams, Ms Fernandes, Ms N Jones and Ms Evans. Ms Hunt was not included in the e-mail. The e-mail was said to be signed by the four Claimants and Ms Farrell, Ms Vane, Ms Marston, Ms Farrington, Mr Raybould, Ms Cheney, Ms Schrijver, Mr Clarke and Ms Baillie. AB’s name was not included.

[65]The e-mail said they were gratified that there were concerns for their welfare. She said that, “The introduction of Knock to Nudge on a voluntary basis had, they understood, increased contact rates but had not seen the statistics on how many contacts resulted in a successful interview.” Mrs Pennington accepted that contacts referred to members of the public responding. She also said, “We are sure you share our concerns that Field Force Interviewers may feel compelled, if they cannot through no fault of their own return to fieldwork to take annual leave, unpaid special leave, a career break or resign as a last resort. Further information, guidance and support is needed to help interviewers make appropriate decisions, especially as line managers are not medical experts as you concede.” It was also said that there was no mention as to whether Prospect or other Trade Unions had been consulted on the process which amounted to a change of contract.

[66]She said, the decision to end special paid leave came at a time when morale and mental welling being were low. Further she said, “We seek assurance that we will not be penalised for accumulating deficit hours, particularly those who are uncomfortable with KTN due to age or health conditions. You write of working with our IMs and FOMs to manage allocations and workloads, but with no details of how this will be achieved satisfactorily. This is hardly a boost to morale going forward…” “We understand that these decisions have not been taken lightly, and that processes and protocols may change in the coming weeks. However we would have expected that you could have anticipated the impact of your e-mail would have had on the Field force Interviewers and managed it accordingly.”

[67]Mrs Pennington’s evidence was that she believed there were significant health risks if interviewers went back into the field to interview and the public from covid-19. There was not a covid-19 vaccine at that time, covid-19 deaths were increasing and new lockdown came into force on 5 November 2020. Mrs Pennington’s evidence was that the only part in her e-mail which she said related to health and safety was the sentence “Further information, guidance and support is needed to help interviewers make appropriate decisions, especially as line managers are not medical experts as you concede.”

[68]Before sending the e-mail, she read Ms Jones’ e-mail dated 18 November 2020, the CCT, the risk assessment, the pilot protocol and the Q&A documents on Reggie. She had volunteered to take part in the KTN trial from August 2020 and had participated in it for about 2 months. She accepted that when doing the trial, there had been planning and measures had been put in place for their safety. Her evidence was that she did not understand the risk assessment and asked a colleague, Mr Clark, to explain it to her. She also said that she did not understand the Trial protocol, however when she was taken through it in cross-examination she accepted that she understood the steps. She said she would have followed those steps when participating in the trial. We accepted that she might not have understood the colour coding in the risk assessment, however we did not accept that she did not understand the safety measures being put in place.

[69]Mrs Pennington said that she was not concerned about her own circumstances, in monetary or health terms. In cross-examination she said that she was concerned about the financial situations of colleagues and those colleagues who were older than her and/or had health conditions.

[70]She initially accepted in cross-examination that her primary concern was about pay, however she then said it was a secondary concern and that her primary concern was those who were clinically vulnerable.

[71]We accepted Mrs Pennington’s evidence that she thought that deficit hours would increase again and special paid leave would need to be reintroduced, which it was in April 2021.

[72]In cross-examination Mrs Pennington said that she thought that a medical professional needed to accompany managers on the CCT conversations, on the basis that things might need to be explained to their manager. She suggested that at this time this should have been the case for any workplace discussion for anyone. The Q&A said that CCT was an opportunity for every colleague to discuss their concerns and for the Respondent to get a better understanding of their individual circumstances. We accepted that if there were medical queries managers would have sought appropriate advice after the meetings. In Mrs Pennington’s CCT meeting on 20 November 2020 she did not say she had any concerns about the ending of paid special leave. She said that there were high covid infection rates and wanted to withdraw from KTN until rates started to fall.

[73]Mrs Pennington said she was worried about the Q&A part in relation to whether circumstances made it difficult to return to the field and that alternatives such as voluntary career break, unpaid special leave or using annual leave could be used. Her evidence was that she was worried about people’s health and safety going out. Members of the public would have no warning that someone was going to knock on their door. She was worried that interviewers would feel compelled to do something they did not want to do. She could have gone out, however a colleague had diabetes and she did not want Mrs Walker or Mr Adams going out because of their health conditions. She said their team supported each other and Ms Hunt and Ms Evans had been really good at looking after their mental health. We accepted that Mrs Pennington had those concerns at the time of the e-mail.

[74]Mrs Walker’s witness statement did not refer to what she believed Mrs Pennington’s e-mail disclosed. In oral evidence she said, in relation to the paragraph about interviewers may feel compelled to take annual leave, unpaid special leave, a career break or resign as a last resort, ending special paid leave was a policy compelling them to return to the field. When it was put to her that the concern was really about pay and not health and safety she said that was an element but it was about it being premature to going back out into the field.

[75]Ms Turner’s witness statement said she believed they were making a disclosure about concerns not addressed in Ms Jones’ badly thought out, badly timed and badly worded e-mail and concerns about their own health and wellbeing and that of the public. In cross-examination she said that the e-mail was about using the end of PSL to force them back into the field and was a protest about Ms Jones’ e-mail and the decision to end special paid leave. Ms Turner’s evidence in cross-examination was that the e-mail did not mention health and safety.

[76]Mr Adams’s witness statement did not address what he believed Mrs Pennington’s e-mail disclosed. His oral evidence was that before the e-mail was sent he had read:(a) The covid conversation tool, about which he did not have a complaint, but that he was concerned about some of the questions being asked during the conversations;

(b) The trial protocol for KTN, which he did not have a complaint about;

(d) The Q&A document, which he accepted said that if people were in deficit hours they would not be penalised.

[77]In cross-examination Mr Adams accepted that a medical professional would not add anything to a manager asking whether someone had a medical condition which put them at risk if they went into the field. He suggested the Respondent did not understand health and safety in the context of going back into the field, this was inconsistent with his earlier concessions in relation to the documents he had read.

[78]Mr Adams’ evidence was that the only part of the e-mail which referred to health and safety was the words, “Further information, guidance and support is needed to help interviewers make appropriate decisions, especially as line managers are not medical experts as you concede.” His evidence was that the e-mail was generally saying it was unsafe to go out and it alluded to not going back into the field. The e-mail made no mention of safety in the field.

[79]When questioned about his belief that it related to health and safety Mr Adams said, in relation to the respondent, ‘of course they have concerns for employees it was about reckless decision making. This was not a process following the correct pathway.’ When it was suggested that there were no concerns in the e-mail that he thought were in the public interest he said, that is what he thought he was saying.”

[80]In his CCT discussion on 26 November 2020 Mr Adams referred to his own health conditions. They discussed risks and that he would not personally put himself in that position. He said that there were more than enough people to go out anyway and work would need to be found for him to work from home. He did not refer to risks generally to staff or the public. In Mr Adams’ discussion with Ms Evans on 18 December 2020 he asserted that he made disclosures about health and safety and relied on his own note of what was discussed. There was no mention of general health and safety and the discussion was about his personal circumstances and it was completely at odds with his oral evidence.

[81]It is notable that Mr Adams did not say he made disclosures about health and safety in his disciplinary appeal, or in his grievance or appeal against the grievance outcome or the associated meetings. Events which followed on 20 November 2020

[82]On 20 November 2020, Mrs Evans was copied into Mrs Walker’s, Ms Turner’s and Ms Pennington’s e-mails of the same date. They had been sent in close proximity of each other and Ms Evans thought there had been a collective effort and e-mailed Ms Jones saying that a campaign was going on. We accepted that she thought it appeared co-ordinated and was an attempt to disrupt plans. Mrs Evans was disappointed with the content of the e-mails, because it appeared to her that the authors had not read the documents attached to Ms Jones’ e-mail which explained what would happen to pay. She considered that what was said about the ending of PSL and the effect of deficit hours and financial penalty was incorrect. She thought it appeared she was not doing her job properly and it was not particularly professional to send an e-mail to senior managers before speaking to their own managers. Mrs Evans sent an e-mail to Ms Jones and Ms Fernandes apologising for unprofessionalism. We accepted that she thought it was unprofessional not to read documents properly and bypass the immediate line management.

[83]Ms Walker and Ms Turner put some posts on Yammer. Ms Turner had referred to not getting enough hours and pay cuts as they go into deficit hours [p289]. Ms Walker referred to Ms Jones’ e-mail as having many flaws [p339], which Ms Evans thought was scaremongering. Mr Adams was saying it was worrying they were being told the unions were in agreement [p339]. Mr Adams also said that that they were told that unpaid leave, holiday and other detrimental methods were to be used to address a shortfall in hours [p344]. Ms Evans responded to this message by saying he should read the information provided and the use of unpaid special leave was not to be used to address a shortfall and suggested he called her or Ms Hunt so they could explain.

[84]We accepted Ms Evans’ evidence that she thought they had not properly read the letter of 18 November 2020 and the information they were sharing was incorrect and looked to be scaremongering. She was concerned they were trying to get the field force to worry unnecessarily.

[85]Ms Jones was copied into the e-mails. By the time she received Mrs Walker’s e-mail she had read 60 other responses, none of which had been negative towards her e-mail. She e-mailed Mr Woodland about Mrs Walker’s e-mail and said that it might have been instigated by Mr Adams a newly appointed union representative.

[86]Ms Fernandes was copied into the e-mails. She thought that the authors were distressed and naturally raising questions, but that they had not read the documents properly. She thought that on the whole, nationally interviewers had generally responded positively to Ms Jones’ e-mail. She thought that the concerns raised by the Shropshire team seemed much greater than those in other teams and it was unusual that one team out of 60 had taken Ms Jones’ e-mail in a different way. Ms Fernandes posted on the Field Force Yammer chat that monthly salary would stay the same and it was ONS’ responsibility to ensure everyone had adequate work to fulfil their hours and they would have a number of options to support that. Ms Fernandes believed that managers in other teams were answering questions from interviewers and moving through the process, however following information from Ms Evans, that was not apparent in the Shropshire team.

[87]Mrs Pennington claimed that on 20 November 2020, Ms Evans alleged in an e-mail that she had been guilty of insubordination. Her witness statement referred to Ms Evans interview on 19 August 2021 [p1256], in which she said that she had sent an e-mail to Ms Fernandes and Ms Jones on 20 November 2020 to apologise for unprofessionalism. Mrs Pennington accepted that there was no reference to insubordination, but said she did not write the allegation. The allegation had been recorded at the first case management hearing as what she had said the case was about. She did not seek to change or alter that allegation at any stage. She said it was detrimental because it was apologising for unprofessionalism. She was unable to say why it would relate to her health and safety concerns. We rejected that Ms Evans said that Mrs Pennington had been guilty of insubordination. We accepted Ms Evans’ evidence that she thought it was unprofessional to send inaccurate information and it was apparent to her that the information attached to Ms Jones’ e-mail had not been read. 23 November 2020

[88]The Claimants relied upon e-mails in the bundle, at pages 290 to 294, sent between Mr Woodland, Ms Williams, Ms N Jones on 23 November 2020. In those e-mails there were references to responses being prepared to the emails sent on 20 November 2020 and also to unacceptable and unreasonable and inappropriate behaviour. Those e-mails were set against a background and needed to be placed in context

[89]Early in the morning on 23 November 2020, Mr Woodland, Ms Williams and Ms Jones discussed how to respond to the Claimants’ e-mails dated 20 November and they were going to have a discussion with Mr Bell. Mr Woodland started to prepare a draft response. They agreed that Ms Evans should speak to them. Ms Jones asked Ms Evans to speak to the team. We accepted that Ms Evans tried to speak to the team to reassure them. That evening they became aware from Ms Evans about her experiences of making the calls and what she was being told, in particular by AB in relation to what the Shropshire team had been saying. We accepted that the references to unacceptable, unreasonable and inappropriate behaviour related to what happened on 23 November 2020.

[90]Mrs Walker alleged that on 23 November 2020 Ms Evans claimed to have evidence of passing on misinformation and inciting the workforce not to return and she had made adverse comments on yammer. Mrs Walker based this allegation on Ms Evans’ interview as part of the grievance on 16 August 2021, when she said that: ‘it was the posts on Yammer which prompted the phone calls on 23 November 2020. Ms Evans said in the interview that she ‘had been contacted by Mr Raybould or AB saying that Mrs Walker was trying to get the East to send more e-mails to senior managers and Mrs Turner had put a similar message up on Yammer. She had no problems with them raising concerns but is was misinformation they were sharing and they had not understood the plan. It looked on Yammer like it was scaremongering. She had concerns they were inciting people to act in a certain way. She was making telephone calls to them on 23 November to say to read the information and reassure them that no one would be penalised financially.’ [p1257]. Ms Evans was not cross-examined about this document. In Ms Evans’ witness statement, she said that she spoke to Ms Fernandes and Ms N Jones about the yammer posts and they decided that the best thing to do was for her to speak to each member of the team individually, give reassurance and signpost useful information. In cross-examination Mrs Walker accepted that all that happened was that Ms Evans tried to speak to her about what KTN was. In cross-examination the Mrs Walker said it was not true she was scaremongering and there were no posts on Yammer. She accepted that Mrs Evans tried to speak to her about KTN. She accepted that she did not know what had been discussed.

[91]On 23 November 2020, Ms Evans telephoned Mrs Walker. Mrs Walker’s evidence was that Mrs Evans telephoned her, was angry and had a go at her for sending her protected disclosure, whilst she remained calm and listened. She said that others experienced a similar call. Mrs Walker later asked for Mrs Evans to confirm the conversation in writing.

[92]Ms Evans’ evidence was that she explained that she was calling regarding what had been raised and to try and offer reassurances and give more information about the plans. She tried to explain why Mrs Walker’s understanding was incorrect. She was saying that either Mrs Walker had not read the documents or had misunderstood them and that she wanted to go through it and explain. At the start of the conversation Ms Evans felt that Mrs Walker was hostile towards her, in that she was unfriendly and did not want to discuss it with her, by the end of the conversation this had dissipated to some extent. Mrs Walker had said that she blamed Ms Jones for the email which had been sent and Ms Jones’ tone was disgusting. Ms Evans denied being angry or berating Mrs Walker for sending the e-mail.

[93]We were shown messages from the Shropshire Team group chat, in which Mrs Turner had said she had a call from Mrs Evans and she was planning to call more of them. When asked if she had been reassuring, Ms Turner said ‘she was trying to dig herself of a big hole and had sounded more annoyed they had sent e-mails to top brass.’ Mrs Walker said, ‘She grovelled to me she is defending that email saying we have got it all wrong and there is loads of work and new projects coming up. She did say Carol was in bits! I told her Nic Jones needs some serious training and is a waste of space.’ There was no mention in the messages by Mrs Walker that Ms Evans had been angry or raised her voice with her.

[94]In Ms Evans e-mail to Mrs Walker [p301-302], she set out what she had explained in terms of work coming forward so special paid leave was no longer required, about the 1:1 conversations which would happen. If someone could not return to the field there was a commitment to find them work which could be done at home. No interviewer would be penalised if they had not been provided with enough work. Mrs Walker was not happy that the ending of special paid leave had been added to the KTN letter and she was not happy with the tone of the letter or how Ms N Jones communicated messages in the e-mails. There was no mention of the email Mrs Walker sent on 20 November 2020. Mrs Walker did not challenge Ms Evans about the record of what was said.

[95]In cross-examination Mrs Walker said that ‘waste of space’ meant unhelpful, we did not accept that explanation. She also agreed that the contents of Ms Evans’ email was what they discussed. Mrs Walker also said they had discussed sending people out in covid, this was not in Mrs Walker’s witness statement and not in the e-mail; we did not accept that this was raised. Mrs Walker’s oral evidence was that Ms Evans said that they should ventilate their concerns with management before sending the e-mail, but this was prior to berating her. She had previously said that Ms Evans had rung and said they should not have sent the e-mail at which point Mrs Walker said she had concerns. This was inconsistent in terms of timing.

[96]In Ms Evans’ witness statement she said that Mrs Walker told her that the e-mails had been sent to show Ms Jones up as she needed to be brought down a peg or two. Mrs Walker denied saying that the tone of Ms Jones in the e-mail was disgusting, or ‘how dare she send the e-mail out of the blue’ or that they had sent their e-mails, ‘to show Nicola up as she needed to be brought down a peg or two’. In cross-examination Ms Evans accepted that the comment about ‘brought down a peg or two’ might have been reported to her by AB. In the later initial fact find, AB said this comment was being made. Ms Jones’ e-mail dated 23 November 2020, recorded that Ms Evans had reported these words had been said by the interviewer providing information. We concluded that Ms Evans recollection in her witness statement about the ’peg or two’ comment was mistaken, her recollection that she had been told this by AB was correct. Ms Evans said in her witness statement that she was clipped and precise and was being careful with what she said so it could not be taken out of context, we accepted that evidence.

[97]The message Mrs Walker put on the group chat was inconsistent with Ms Evans being angry or berating her, grovelling is something very different. The e-mail recording what was said was unchallenged by Ms Walker and clearly set out what had been discussed. We did not accept that Ms Evans was angry with Ms Walker or that she berated her for sending the e-mail. We accepted Mrs Evans’ account and that she had called to try and correct a misunderstanding about the end of PSL.

[98]On 23 November 2020, Ms Evans telephoned Ms Turner. Ms Turner’s evidence was she received a telephone call from Ms Evans asking why she had sent the e-mail to Mr Bell and her tone was hostile. In crossexamination, Ms Turner accepted that she had complained to Ms Evans in the call, that extra hours she had done on a covid inspection survey in August had gone into her September hours and she had lost overtime and that it had been an annoyance for her. She denied that she had been abrupt and did not answer the question about what Ms Evans talked about was pay. It was accepted health and safety was not spoken about. She said Ms Evans was angry that the e-mail had been sent. She could not remember every word. She accepted that she was not disciplined during the conversation.

[99]After the call Ms Turner sent a message on the Shropshire Team group chat that she had a call from Ms Evans and would be phoning more of them. When asked if Ms Evans had been reassuring she said Ms Evans was trying to dig herself out of a big hole, and later that ‘she sounded more annoyed that we had sent e-mails to top brass’. Ms Turner said the reason why she said Ms Evans was annoyed was that she did not say hello when the call started instead she asked why she had sent the e-mail to Mr Bell.

[100]Mrs Evans’ evidence was that Ms Turner was concerned that the ending of PSL would result in deficit hours and penalties. Ms Turner did not want to listen and her tone was sharp. Ms Turner did not want accept the explanation that there would be various work strands. Ms Turner said that she thought a payment was due to her for Covid Infection Survey and that she had not been paid for additional hours. Mrs Evans was not really challenged about this during evidence. Ms Evans said in her witness statement that she was clipped and precise and was being careful with what she said so it could not be taken out of context, we accepted that evidence.

[101]There was no suggestion in the message that Ms Evans had been angry, trying to dig herself out of hole suggested the opposite. Ms Turner did not suggest that Ms Evans had raised her voice. The e-mail to Ms Walker from Ms Evans supported what Ms Evans says that she was explaining about the pay issues and trying to reassure. We preferred the evidence of Ms Evans. We did not accept that Ms Evans was angry.

[102]Ms Evans telephoned Mrs Pennington on 23 November 2020. Mrs Pennington’s evidence was that Ms Evans started the conversation by saying, ‘Carol is in pieces over this’, which she kept repeating, becoming more agitated and raising her voice on a number of occasion. Mrs Pennington suggested that Ms Evans had given several inconsistent accounts in the various internal interviews, we did not accept that suggestion and considered that they were consistent and were consistent with her witness statement.

[103]Ms Evans evidence was that she asked Mrs Pennington how she was and the reply was, “I don’t want to talk to you.’ When she said she was there to clarify the situation, Mrs Pennington said she did not want to talk about it and would end the call. Mrs Pennington did not end the call. Mrs Evans asked whether she had read the documents and tried to explain matters. Mrs Pennington said very little, but she did make reference to the tone of Ms Jones’ e-mail. Ms Evans denied raising her voice and she was not cross-examined in relation to saying ‘Carol was in pieces’. . Ms Evans said in her witness statement that she was clipped and precise and was being careful with what she said so it could not be taken out of context, we accepted that evidence.

[104]Following the conversation Mrs Pennington put a message on the Shropshire Team group chat saying, “She rang me just, back peddling like Bradley Wiggins. I said I wanted her to reply in writing as I had the test of my colleagues to hear her thoughts. Well obviously she hasn’t had any since 1989 anyway.” In cross-examination Mrs Pennington accepted that there was nothing in her messages that day suggesting Ms Evans had been angry. She disputed Ms Evans’ account.

[105]Mrs Pennington’s message after the conversation was inconsistent with her account and the reference to back pedalling was more consistent with Mrs Evans account that she was trying to explain the situation and there had been a misunderstanding. We preferred the evidence of Ms Evans. We did not accept that she repeatedly said Carol was in pieces or that she raised her voice.

[106]Ms Evans tried to speak to Mr Adams on three occasions that day and on each occasion the call dialled out. She sent him a message asking him to return her call and he replied that he was interviewing. She then asked him to call her when he was available, however he did not. In crossexamination Mr Adams said that Ms Evans only tried to call him once and that he did not want to speak to her but it was also true he was interviewing. On the Shropshire Team chat he said, “She rang me and Skyped me … I was interviewing”.

[107]Ms Evans then tried to speak to Ms Chaney and Ms Farrell but her calls were cut off. AB then telephoned Ms Evans and told her that the team had communicated to each other that she had been trying to contact them, that she was lying and could not be trusted with what she was saying. He further said that he had told team members that he did not agree with the response to Ms Jones’ e-mail and was aware that they had been telling each other not to speak to him and exclude him from discussions. AB later told her that in the group messages they ‘were just laughing and encouraging each other and don’t give a dam, it’s embarrassing, and they had called an emergency skype meeting without Ms Hunt at which they were discussing what Ms Evans said them and telling others not to talk to Ms Evans.’ He also referred to the Shropshire Team chat had been an antimanagement, anti-Nicola, Anti-FOM rant all day.

[108]Mrs Evans then spoke to Ms Fernandes and Ms Jones about the telephone calls. Ms Jones then sent the e-mail at page 293, in which it was said Mrs Pennington refused to talk and Mr Adams repeatedly ended the call. Mr Adams and Mrs Pennington called an emergency meeting excluding Ms Hunt and she was now fearful to contact her team. AB had said that in the group chat it had been said that the only reason to raise this was to ‘bring Nicola Jones down a peg or two’. There was reference to AB being fearful of his position. It was in response to this information and behaviour on 23 November 2020 that the comments about unreasonable and inappropriate behaviour were made. We accepted the Respondent’s evidence that it was not in relation to the e-mails sent to Mr Bell. We accepted that Ms Evans was frustrated and annoyed that people had not been responding to her calls and by what she had been told by AB. She also considered that the things being said on yammer about the effect on pay due to the ending of PSL were incorrect.

[109]Mr Adams asserted that he made protected disclosures on about 23 November 2020 in yammer posts. There were not any yammer posts in the bundle which made reference to health and safety. His witness statement said that the yammer posts were part of a conversation he instigated with the public disclosure of the dangers of the return to work, but many posts were deleted. Mr Adams did not say what he said on yammer. None of the documents referred to the Tribunal suggested that Mr Adams ever raised concerns about health and safety. We did not accept that he made reference to health and safety issues on yammer on 23 November 2020. Discussions and e-mails on 24 November 2020

[110]On 24 November 2020, Ms Evans spoke to Ms Jones about what AB had told her. Ms N Jones then e-mailed Mr Woodland and Ms Williams that Ms Evans had spoken to AB, who had said they team was saying they should not listen to Ms Evans because she was complicit with other managers in telling lies to them and it did not matter if you try to inform them of anything they just say you’re lying [p294].

[111]On 24 November 2020, Mr Bell replied to the e-mails from Mrs Walker, Ms Turner and Mrs Pennington saying that the removal of PSL would not affect monthly salary and processes would be put in place to ensure no interviewer will suffer a detriment to their take home salary as a result of the decision [p295-97 &308].

[112]Mr Adams alleged that between late November 2020 and late February 2021, Ms Evans and Ms Fernandes sent him abusive e-mails, closing him down, telling him to get on and mind his own business. As set out above, Mr Adams said he did not want to seek to amend the allegation. His witness statement did not refer to any specific e-mails about this allegation. He cross-examined Ms Evans on the basis of an e-mail she sent Ms N Jones dated 20 November 2020 in which she said Mr Adams was whipping up all sorts of anxiety in the team [p279]. Ms Evans’ e-mail dated 20 November 2020 to Ms N Jones in relation to Mrs Pennington’s e-mail of that day, “same team as Lee Walker … Definitely a campaign going on here.” [p280] Ms Evans said that was because it felt like the team had got together to raise concerns. She had not read the e-mail as raising health and safety concerns but it was about the end of PSL. Mr Adams referred to an e-mail dated 24 March 2021 from Ms Evans to Ms S Thomas, [p677] in which she detailed Mr Adams had requested 2 OH referrals. At the first he went into details about health conditions. At the second he refused to answer the practitioners questions and said he was attending so that he could record he had spoken to a director of ONS about the illegality of the disciplinary process. She said, “The OH practitioner, of course, had no recommendations. This behaviour, in my opinion, is purposively disruptive and time-wasting for everyone concerned.” Mr Adams did not put any further e-mails to Ms Fernandes on this issue. In closing submissions further pages from the documents were referred to, however they did not include references to closing him down or for him to get and mind his own business. We were not satisfied that Ms Evans or Ms Fernandes sent e-mails to Mr Adams which were abusive, closing him down or telling him to get on and mind his own business.

[113]On 24 November 2020 Ms Evans, Ms Williams, Ms Jones and Ms Hunt discussed what had happened the day before. Ms Evans said that the team refusing to talk to her was insubordination. Ms Evans’ note, [p1287] referred to e-mails sent by Shropshire Team and possible disciplinary action. Mr Adams accepted in cross-examination that he did not know what was discussed or whether he was discussed. We accepted the evidence of the Respondent’s witnesses that, only the behaviour on 23 November 2020 was discussed with reference to disciplinary action. It was agreed to take no action at that time.

[114]Mrs Pennington alleged that on 24 November Ms N Jones e-mailed Mr Woodland and Ms Williams saying not to engage with the Claimant’s team. It was not clear where Mrs Pennington referred to this in her witness statement and she said in cross-examination that it was referred to in paragraph 26 and the e-mail was the e-mail sent by Ms Jones on 24 November 2020 referred to above. She was cross-examined on the basis that there was no reference to not engaging within the e-mail, she responded by saying that engagement was a two way street. We did not accept that in an e-mail Ms N Jones said to Mr Woodland and Ms Williams that they should not engage with the Shropshire team.

[115]In the morning of 25 November 2020, AB spoke to Mrs Pennington. He was upset and shouted at her because he thought he had been added as a signatory to Mrs Pennington’s e-mail of 20 November 2020. Mrs Pennington did not think this was related to health and safety issues she had raised. Mrs Pennington found the experience very upsetting. AB later apologised.

[116]On 25 November 2020, Mr Adams e-mailed the Shropshire interviewers saying he thought they needed to make a formal complaint against Ms Evans and suggested that AB had been asked to spy on them. Mr Raybould disagreed and said he was not prepared to support such action. He later forward the e-mail chain to AB.

[117]Later that day Mrs Pennington set up a group for all of the Shropshire Team interviewers with the exception of AB. The group was called ‘Team Minus [AB]’, which all the Shropshire Team interviewers accessed from their ONS telephones. The Shropshire Team interviewers stopped using the Shropshire Team chat group. In cross-examination Mrs Pennington said that she regretted the name she gave the group, but not setting it up and she did not accept that she should not have done it. Meeting on 25 November 2020

[118]On 24 November 2020, the Shropshire team had been scheduled to have a meeting with Ms Hunt. That meeting was cancelled and a new meeting set up on 25 November 2020. Mrs Walker was told it was urgent and Ms Hunt said it related to the CCT. The agenda for the meeting [p1434] said that after Ms Hunt opened the call, there would be discussion re CCT communication. Mrs Walker’s evidence was that when the meeting started it was about the e-mails the Claimants had sent to Mr Bell and they had been summoned under false pretences. We rejected Mrs Walker’s evidence that the team was summoned under false pretences the purpose of the meeting was to discuss the CCT communication.

[119]Mrs Walker, Ms Turner and Mr Adams attended the meeting along with other interviewers from the team. Also in attendance was Ms Hunt, Ms Fernandes, with Ms Evans was the notetaker. Mrs Pennington joined the meeting 5 minutes before it ended. In their witness statements Mrs Walker, Ms Turner and Mr Adams said that the meeting was designed to intimidate and bully them and to tell them off for sending the e-mails to Mr Bell. Very little detail was provided in the witness statements about what was alleged to have been said. The Claimants accepted in cross-examination that Ms Evans said very little and were unable to say what she said. Mrs Walker accepted that Ms Hunt said that she was upset that she had not been included in Mrs Pennington’s e-mail to Mr Bell and there was nothing wrong with her explaining her feelings.

[120]Ms Turner, in response to a question in cross-examination that Ms Fernandes did not shout or was rude said, that she was upper management and that was intimidating. In response to a question that the meeting was not designed to silence, she said they were having a conversation about something they were not expecting. Ms Turner accepted that Ms Evans was not angry in the meeting, but her facial expression indicated she was not happy with some of the comments made. Ms Turner suggested the tone of the meeting was that the e-mails should not had been sent.

[121]Mr Adams said he was intimidated, we did not accept that evidence, he was able to tell other senior managers he was going to take out private prosecutions against them and say that they were acting in a Putinesque manner. Mr Adams suggested that Ms Evans’ face was angry, however he did not raise that as part of any grievance or complaint.

[122]We accepted Ms Evans’ and Ms Fernandes’ evidence that the purpose of Ms Fernandes’ attendance was to provide a response to any questions raised. The purpose of the meeting was to give the team an opportunity to express worries or concerns and to try and reassure them and to clarify the situation about the ending of PSL. They said that no one was told off. Ms Evans denied she had been angry or animated.

[123]The minutes of the meeting [p311-313] recorded that at the start Ms Hunt said she was disappointed she had been left of the e-mail sent by the team and had found out about it from another Interview Manager. Ms Fernandes then introduced herself and said she was there to answer queries and concerns as it appeared that there had been a breakdown in communication. The meeting then enabled the interviewers to make various points. Concerns were raised about the ending of PSL. Ms Turner said that KTN days were limited. Mr Adams queried the cost effectiveness of KTN. Ms Walker said that there were some people with disabilities who might not want to go out and ONS should follow the science and not government guidelines. Discussion took place about deficit hours. Mr Adams said that the message could have been communicated better and he objected to the way Ms Jones’ email had been written.

[124]We accepted Ms Fernandes’ oral evidence that she was middle management. After the meeting Ms Fernandes sent a pleasant e-mail to the team. In her witness statement she said that she found the meeting hostile and referred to hearing repeated ‘pings’ and could see the team looking down and reading messages. She also considered that some derogatory comments had been made about Ms Jones. The Claimants accepted that the team was messaging each other during the meeting. In the messages were references to Ms Evans’ facial expressions, including that she looked like she was ready to blow.

[125]After the meeting Ms Evans typed the notes she had taken and asked Ms Hunt and Ms Fernandes if she had missed anything. It was raised that Ms Walker referred to people with disabilities. This was added to the notes and the notes were sent to the team. No one in the team responded by saying that the notes were incorrect.

[126]The Claimants referred to posts on the Team Minus AB chat. There were some references to intimidating, however they were made several hours before the meeting.

[127]We did not accept that anyone was told off for sending the e-mails to Mr Bell. The purpose of the meeting was for the team to air their concerns and for Ms Fernandes to provide responses and allay concerns. The notes clearly demonstrated that the team could raise concerns and that they did. We rejected the Claimant’s evidence that the meeting was intimidatory. We did not accept that Ms Evans was animated at the meeting, however her facial expressions indicated to those present that she was frustrated by some of the things being raised, although she did not say anything. We accepted that this was against a background of what had occurred on 23 November 2020 and the way in which the team were messaging each other during the meeting.

[128]Mr Adams alleged that he had provided information in the meeting, that it was unsafe to go out and they were persuading people to go out in an unsafe environment. In his witness statement Mr Adams said, “It was explained by us that a chain of command was not relevant as we were appealing to senior managers to disclose the dangers and issues that existed with the decisions of middle managers to send us back into the dangers of covid in the population.” In cross-examination Mr Adams was asked what he actually said and replied that he could not remember. The minutes of the meeting recorded Mrs Walker raising issues about people with disabilities. They recorded Mr Adams referring to regretting Ms Hunt had not been copied in, that he was happy for the union to deal with concerns, about cost effectiveness and the way Ms N Jones’ e-mail had been communicated. The notes were detailed and even recorded when people arrived late. Mr Adams suggested that the notes were incomplete, we did not accept that evidence. He received a copy of the notes after the meeting and did not seek to correct them. It was notable that Mr Adams did not refer to health and safety matters in his latter disciplinary and grievance meetings. We were not satisfied that Mr Adams made any reference as to the safety of people going back out into the field. AB’s complaints

[129]On 25 November 2020, AB contacted Ms Evans saying he had been excluded from a meeting and Mr Raybould had been told he was not to be trusted because he was spying for Ms Evans and had been sent an e-mail chain by Mr Raybould. He said he was concerned about raising a formal complaint of bullying and it would not be dealt with properly and also that Mr Raybould would be identified as the person sharing the information. He later contacted her and said that group chat had been set up called, ‘Team Minus AB’, which included all interviewers in the Shropshire Team apart from him. He wanted to pursue a formal complaint. Following the discussion, Ms Evans made a service desk call to register the complaint.

[130]The Claimants asserted that AB had not raised a complaint about anyone and cross-examined Ms Evans on the basis of AB’s interview as part of their later grievance against him. Reliance was placed on him saying that he had not raised an allegation against anyone referring to the four Claimants. This ignored what he said on the same page that, “I made an allegation of bullying against a chat set up excluding me – bullying”. He had also said the team stopped talking to him and someone set up the group to exclude him from the team. We accepted that AB made a complaint of bullying on 25 November 2020.

[131]Ms Evans’ evidence was that AB told her that he did not want to go through a resolution process. She was cross-examined on the basis that he said he wanted to sit around a table referring to line 261 of his interview [p1581]. Line 261 did not say that, what it said was “I feel it should have been dealt with in a couple of weeks – I blame ONS for letting it escalate.” We took into account that this was said in September 2021 after allegations of racism and misogyny had been raised against him. We accepted that at the time AB said he did not want to go through a resolution process.

[132]The Claimants accepted in cross-examination that if someone complained of bullying, the Respondent was duty bound to investigate it. The Claimants cross-examined the Respondent witnesses about AB not raising a grievance. We accepted the Respondents evidence that a grievance was not required when bullying is alleged and that it was duty bound to investigate the allegation.

[133]On 26 November 2020, Ms Evans asked AB to forward the evidence he had to her. AB forwarded two e-mail chains from 25 November 2020. She considered that the complaint could potentially fall within remit of gross misconduct and raised a case with the HR service desk.

[134]Ms Evans discussed the complaint with Ms Fernandes, who said that allegations of bullying should be taken seriously.

[135]Ms Evans spoke to Mr Gibbons and sought advice on how to appropriately manage the allegations of bullying. Mr Gibbons was a specialist manager dealing with conduct/discipline matters and grievances and he was the local expert on how those processes worked. Mr Gibbons was not part of the HR department. The ONS has a zero tolerance policy to bullying. Mr Gibbons considered that further informal investigation was required to ascertain whether there were grounds to formally investigate. We accepted Mr Gibbons evidence that once AB raised the issue with Ms Evans, there was a duty to investigate it. At this stage he was told that there had been some upset after the announcement of the return to the field and an e-mail had been sent on behalf of the Shropshire Team bar AB. The Team minus AB group had been set up which AB believed was because he would not support Mrs Pennington’s e-mail. Mr Gibbons later saw the email. We accepted that Mr Bell had encouraged staff to e-mail him with concerns and that he had no issue with the e-mails which were sent. He thought that it might been better to go line managers first. Mr Gibbons had not seen any documents at this stage. Mr Gibbons later e-mailed Ms Evans and said that she should collate the evidence and he would stay out of the matter so that it did not compromise him as a potential decision manager. The next day he relayed the information to Ms Williams.

[136]Bullying and harassment fell within the definition of serious misconduct within the disciplinary policy and guidance and Mr Gibbons considered that as such it could not fall within minor misconduct and therefore informal resolution would not be appropriate. Mr Gibbons considered that setting up a group excluding one member of the team and calling the group ‘Team minus that person’ was serious because it was isolating. The contents of the chat groups had not been seen at this stage.

[137]On 27 November Ms Evans provided HR casework with the evidence AB had provided, which was the e-mails and a screenshot showing the Team Minus AB group had been set up.

[138]On 30 November 2020, Ms Farrell told Ms Evans that the ‘Team minus AB’ group had been created.

[139]On 1 December 2020, Ms Thomas was appointed to provide HR advice in relation to AB’s complaint. She reviewed the documentation and was satisfied an investigation should be undertaken. Ms Thomas suggested Ms Fernandes should carry out an initial fact finding. We accepted that this was to see if there was any basis to the allegation and whether a formal investigation was required. She said Ms Evans was too close to the situation to undertake the initial fact finding.

[140]Ms Fernandes spoke to AB on 2 December 2020. He said that the Team Minus AB group had been set up. He referred to comments being made about management and that Ms N Jones needed to be taken down a peg or two. He had been excluded from a number of meetings.

[141]On 4 December 2020, Ms Fernandes spoke to Ms Evans. Ms Evans provided a detailed chronology from 17 November 2020. Ms Evans referred to the e-mails sent on 20 November 2020, but not their contents. What had taken place on 23 November 2020 and what AB had said to her 24 November 2020. She set out that on 26 November 2020 AB had said he wanted to make a formal complaint and he had been completely excluded from the group they used for team support. She provided details of what she was aware about the involvement of the Shropshire team. She identified who she thought had provided incorrect information on Yammer and been involved in setting up the chat group and highlighted the names of the four

[142]Ms Fernandes put the information she obtained in an initial fact finding report which she sent to Mr Gibbons on 4 December 2020. He was also sent the e-mails from Mrs Walker and Ms Turner dated 20 November 2020. Mr Gibbons considered the 20 November 2020 e-mails as background, in that it sparked the dispute with AB. We accepted that Mr Gibbons was concerned about the conduct of team members after those emails had been sent.

[143]On 18 December Ms Thomas contacted Ms Evans and Ms Fernandes and said she needed to obtain a device to formulate a terms of reference for an investigation. Ms Fernandes suggested that Mr Raybould could be asked to provide his telephone. Ms Evans had a meeting with him that afternoon. Ms Evans, Ms Thomas and Ms Fernandes discussed over e-mail whether they needed to be upfront with the reason why the phone was needed or whether someone in security could request it. There was concern that if the reason was given it would be a breach of confidentiality. Mr Raybould was not asked for his telephone. Ms Evans was then absent from work for 5 weeks with covid-19. When Ms Evans returned a telephone had still not been obtained.

[144]Mr Adams said he made a protected disclosure to Ms Evans on 18 December 2020 during a 1:1 meeting about the CCT. His witness statement did not set out what he said amounted to a disclosure. In oral evidence he said he told Ms Evans it was dangerous to go back into the field, but he could not remember her response. In cross-examination he said what was said was contained in his hand-written note [p406]. The note referred to the validity of the meeting and whether anyone else was qualified to do the task and it should be by suitably qualified people, matters in relation to trade union activities and associated facility claims and she asked questions about his health status. Mr Adams conceded he did not record anything relating to health and safety. He suggested that was because he only included things which were important at the time. We did not accept that Mr Adams said it was dangerous to go back into the field. January 2021

[145]In January 2021, a decision was taken not to return to the field.

[146]On 15 January 2021 Field Technical Support was asked whether they could request a telephone was returned to them. Ms Thomas was informed that they did not have a precedent for recalling a working telephone and technical support could not think of a non-suspicious reason for recalling it. whether There was then e-mail correspondence about how a telephone could be obtained and whether they would need to be upfront about the reason. We accepted that Ms Evans was concerned about confidentiality. We accepted Ms Fernandes’ evidence that they were concerned about difficulties in getting a copy of the chat as did not want to push someone into being a whistle blower if they did not want to be.

[147]On 19 January 202,1 Ms Evans spoke to Mr Gibbons and Ms Thomas. She said that previously Ms Farrell had said she was unhappy about the group being set up. It was agreed Ms Evans would ask Ms Farrell for her telephone.

[148]On 20 January 2021, Ms Evans asked Ms Farrell for the telephone. There was a dispute about what was said to Ms Farrell. Ms Farrell was not a witness at the hearing. The Claimants relied on an unsigned statement to their union representative in April 2021. Ms Farrell’s interview as part of the later grievance in September 2021 said that she was not intimidated during the call. We concluded that Ms Farrell was told that a phone was required so that messages could be investigated. Ms Farrell confirmed the Team Minus AB chat was still on her phone and agreed to provide it. Ms Evans then collected the telephone from outside of Ms Farrell’s home.

[149]We accepted Mr Gibbons’ evidence that the Claimants were not asked for their telephones at this time because if there was nothing in the chat, it would have been unnecessary and there was a possibility the data could be deleted. At this stage that all members of the team were being considered in respect of conduct towards AB.

[150]The telephone was sent to the Cyber Security Lead, Mr Davies, who then asked Ms Farrell for the passcode. Mr Davies looked for who was included in the Team Minus AB Group. It was established that Mrs Pennington named the group. He looked for any messages in relation to AB. What was discovered was set out in an e-mail dated 27 January 2021 to Ms Thomas. Photographs were taken of the messages about AB and attached to the e-mail. It was noted that other people had made comments but not about AB. On the group chat a member had said ‘This is bollox’, this was not referred to in Mr Davies’ e-mail and it was not included in the photographs [p433-437]. We accepted that the investigation was not given the full chat and Mr Gibbons was unaware of the ‘this is bollox’ comment when he subsequently wrote the terms of reference.

[151]Following a conversation between Mr Gibbons, Ms Evans, Ms Fernandes and Ms Thomas on 28 January 2020, Mr Davies was asked to see if there was anything on the Shropshire Team chat. This was to try and ascertain the purpose and cause of why the Team Minus Andy group had been set up. We did not accept that Ms Evans was evidence gathering or had decided to take control of the investigation. Ms Thomas made the request on 1 February 2021. She asked for similar screen shots from that group and also messages about ‘bringing down a peg or two’ and antimanagement statements particularly on 24 November 2020. On 5 February 2020, Mr Davies provided a document with screenshots from that group. The start of the formal investigations

[152]Mr Gibbons considered the information and screenshots provided by Mr Davies. From that information he considered that there were grounds for a full disciplinary investigation, in relation to comments made by the Claimants and in relation to the setting up of the ‘Team Minus AB’ group. He was cross-examined on the basis that it was a minor spat, however we accepted Mr Gibbons’ evidence that he thought setting up a group excluding one person, coupled with the name and some of the comments made in the chat would not be a nice position for AB to be in and was potentially serious misconduct. Similarly he thought that some of the comments in the Shropshire Team chat were also potentially serious misconduct. Mr Gibbons was cross-examined on the basis that the person who said ‘this is bollox’ on the Team Minus Andy chat had potentially committed serious misconduct and should have been investigated. Mr Gibbons agreed that it was potentially serious misconduct and if he had seen it they would have also been investigated. We accepted that Mr Gibbons was not sent that comment by Mr Davies, who had only included comments about AB from the Team Minus AB chat. Mr Gibbons concluded there were grounds for a full disciplinary investigation. Mr Gibbons considered the guidance document, ‘How to assess level of Misconduct’ in relation to the early stages of disciplinary matters when deciding what level of action was appropriate. Serious Misconduct had examples including bullying and harassment and offensive personal behaviour and such behaviour required formal action. There was zero tolerance of bullying and harassment and Mr Gibbons understood that in such circumstances informal action was not appropriate given the examples given under serious misconduct.

[153]On 8 February 2020, Mr Gibbons sent an e-mail to Ms Fernandes, Ms Thomas and Ms Evans saying that he had reviewed the information from Mr Davies. He said, “I think the investigations should look in to the following potential disciplinary charges: Serious Misconduct on grounds of “offensive behaviour and abuse of colleagues” by: - Brenda Pennington (references to “Bell End” and “Tossers”) - Julius Adams (references to “Bell End” and “Bull shit”) - Lee Walker (reference to Nic Jones being a “Waste of space”) - Penny Turner (reference to “Brain up A***” in relation to BAU) Serious Misconduct on grounds of bullying and harassment directed at AB: - Brenda Pennington for setting up the group “Team Minus Andy”. - Lee Walker for commenting ‘loving the new name’ and ‘Bet Andy is thinking the Shropshire team is quiet’ For all others who were part of the “Team Minus Andy” group there is a lack of evidence that they actively sought to become part of that group or that they contributed in a malicious way. My inclination is to give them all the benefit of the doubt and take no further action against them. Let’s use this as a starter for 10 at our next discussion. I’ll send a meeting request towards the end of day to discuss.”

[154]Mrs Pennington later saw the e-mail as part of a subject access request and said in her witness statement that this suggested Mr Gibbons was not completely independent or impartial. Mr Gibbons’ evidence was that he used the expression ‘starter for 10’ as a starting point for discussions at the meeting and he was mindful that there might be context or mitigating factors to explain what had been said in the messages and an independent investigator was required. Mrs Pennington accepted that she was not investigated for referring to Ms Evans as not having a thought since 1989 or to Ms Evans and other managers as ‘her greasy pile’. We accepted Mr Gibbons’ evidence.

[155]On 10 February Mr Gibbons had a telephone discussion with Ms Fernandes , Ms Thomas and Ms Evans and it was agreed that that the matters in his e-mail should be investigated. A note was not taken of the discussion. Mr Gibbons reviewed the list of trained investigators and approached Mr Orchard, who was Grade 7 and who had previously completed 3 investigations. Mr Orchard agreed to act as investigator.

[156]At this stage Ms Evans thought that there had been an attempt at informal resolution on the basis of her attempted discussions on 23 November 2020. Mr Gibbons did not think informal resolution was appropriate because AB had raised a complaint of bullying and harassment.

[157]On 12 February 2021, Mr Gibbons drafted terms of reference and prepared letters to each Claimant informing them that Craig Orchard had been appointed to investigate the allegations against them. The letters informed the Claimants that any information emerging from the investigation might be used in any misconduct proceedings and if it was decided to instigate discipline action, the procedures in the discipline procedure would be followed. The letters did not indicate a likely penalty if action was taken.

[158]The disciplinary policy said, in relation to fact gathering for minor or serious misconduct when the facts were readily available and unlikely to be in dispute, that the evidence would be gathered and the decision manager would consider the facts of the case. The decision manager must then write to the employee, giving details of the allegation and the likely penalty if proven. The employee is invited to a meeting to discuss the matter. When such cases are not straightforward a formal investigation is required. The decision manager must not carry out the investigation. When the investigation manager is appointed the decision manager should write to the employee with details of the alleged misconduct, the likely penalty if misconduct is proven and confirm an investigation was needed. We accepted Mr Gibbons evidence that he did not include a likely penalty because it was unclear at that stage whether the matters would proceed to a disciplinary hearing. Mrs Pennington was anxious on receipt of her letter because she did not know whether it was possible for her to be sacked if the allegations were proven.

[159]Mrs Walker’s letter told her she was being investigated in relation to allegations of:(1) bullying AB by posting ‘loving the new name’ and ‘bet [AB] is thinking the Shropshire team is quiet’ on the Team Minus AB group; and

(2) posted a message on her ONS phone between 18 and 25 November 2020 referring to Ms N Jones as ‘a waste of space’. It was identified this was potentially serious misconduct in respect of: (1) bullying harassment and discrimination, (2) serious misuse of departmental assets such as phone/e-mail/internet, and

(3) offensive personal behaviour, for example abuse of a colleague.

[160]Mrs Walker accepted in cross-examination that it was a mistake to set up the group Team Minus AB and as soon as Lal said it was not a good idea she agreed. She accepted that Mr Raybould forwarded AB the e-mails dated 25 November 2021, following his conversation with Ms Pennington, which included Mrs Walker referring to him as a spy and he should be removed from the message groups and meetings. She accepted that if a team group was formed called ‘Team Minus Lee’ and she was not informed about it and later found out, she possibly would be upset.

[161]In relation to what Mrs Walker had written on the Team Minus AB chat she said in relation to her comment ‘loving the new name’, that AB had not seen it and therefore could not have been offended. She accepted that it could be taken as being about workplace culture and with the rest of the team included it was not private and could be unpleasant and she probably should not have said it. In relation to saying ‘Bet [AB] is thinking the Shropshire Team is quiet’ she accepted that it could have been a little unkind but not that it was mocking.

[162]In relation to the message that Ms Jones needed some serious training and she was a waste of space, she suggested that she meant that she was unhelpful. We did not accept Mrs Walker’s evidence in relation to this. Mrs Walker accepted that it was not nice, however said that Ms Jones was not meant to see or hear it.

[163]Mrs Walker accepted that AB reported the matters to Ms Evans that he was being bullied by a chat being set up that excluded him. She further accepted that the group and the messages were being sent on Government telephones. Mrs Walker accepted that if a manger receives a complaint that bullying is happening in the workplace they are duty bound to look at it. She also accepted that she knew the code of practice included that they should not make derogatory comments or misuse Government telephones. She accepted if someone made a genuine complaint it should be investigated suitably.

[164]Ms Turner’s letter told her she was being investigated in relation to allegations in relation to offensive behaviour by posting, using her ONS phone, on a group chat between 18 and 25 November 2020, she said ‘Brain up A***’ in a group discussion about communications from senior management. She was told it could amount to serious misconduct in relation to serious misuse of departmental assets and offensive personal behaviour.

[165]Ms Turner, in her witness statement, had referred to a post by Mr Davies on his personal Facebook page and that in his profile on Facebook he said he worked for the ONS and there had been a complaint about it. Mr Gibbons was unaware of this post or what had happened. In crossexamination Ms Turner was evasive about what the ‘A***’ meant and made, she also effectively accepted that the group chat was not private.

[166]In the letter to Mr Adams, he was informed that he was being investigated in relation to an allegation of offensive behaviour by posting abusive messages to ONS colleagues from his ONS phone between 18 and 25 November 2020 using:(1) the term ‘bell end’ in relation to an ONS colleague, and

(2) ‘bullshit’ in relation to communications from senior management. He was told this was potential serious misconduct by reason of serious misuse of department assets and offensive personal behaviour.

[167]Mr Adams was not investigated in relation to a number of other comments made at the same time on the Shropshire Team group and the group ‘Team Minus AB’, in relation to saying: Ms Evans was complicit in dishonesty, she had directly lied twice, and in relation to Mr Bell’s response as ‘blah blah blah. Mr Adams, in cross-examination, suggested this was banter and that there is a right to offend people but not right to be offended. Mr Adams did not accept that the matters he was investigated for were offensive. He accepted in principle that if an allegation of bullying had been made there was a duty for the Respondent to investigate it.

[168]In the letter to Mrs Pennington, she was informed she was being investigated in relation to allegations of:(1) bullying AB by establishing the group ‘Team Minus Andy’, which excluded him and included all other members of the Shropshire Team,

(2) offensive behaviour by posting abusive messages to ONS colleagues on her ONS phone between 18 and 25 November 2020, including references to ‘Bell End’ and ‘Tossers’. She was informed that the if proven they may constitute serious misconduct on the same grounds as Mrs Walker. There was no reference to what the likely penalty would be. We accepted that Mrs Pennington was concerned that she would be dismissed. We also accepted Mr Gibbons’ evidence that the template he had used for the letter did not contain a reference to likely sanction. He did not realise it needed to be included.

[169]Mrs Pennington accepted in cross-examination that she was not investigated into referring to Ms Evans as ‘Debbie and her greasy pile’ or her response to Mrs Walker’s comment about AB on the Team Minus Andy chat. She also accepted that the charges had not been fabricated and she had created the group and made the comments alleged.

[170]The Claimants asserted that AB had not raised a grievance or a complaint about them and therefore the investigation should not have commenced. Reliance was placed on AB’s interviews during the subsequent grievance processes in which he said that he had not made a complaint against the Claimants. The passages chosen were selective and within the same documents he said that someone had set up a group to exclude him from the team and that was bullying and that he had made an allegation in that respect in November. We accepted that AB made a complaint of bullying to Ms Evans that a group had been set up excluding him. In the same interviews he said that the group had been set up and the team stopped talking to him. Further as of August 2021 he said, “nobody speaks to me”. We accepted that if a complaint of bullying is made the Respondent was duty bound to investigate it and that there was no requirement that a grievance had to be raised in order for such an investigation to take place.

[171]Following receipt of the investigation letters all four Claimants reported as sick and were signed off work. Mrs Walker sent a message to her manager on 14 February 2021 and we accepted that she had experienced an exacerbation of symptoms related to her disabilities. The other three Claimants informed the Respondent that they had been signed off on sick leave on 15 February 2021. Ms Evans e-mailed Mr Gibbons, Ms Fernandes and Ms Thomas informing them they had all reported sick and requesting OH referrals. She said it suggested collusion, in that they had done the same thing in response to the letters but she had no evidence of it. The Claimants denied any form of co-ordination of action during all of the processes. However it was of note that they were signed off sick at the same time and raised grievances, which were similar in content, at about the same time. Mr Adams, in cross-examination, said he went off sick straight away because it was the best thing to do in that circumstance. He spoke to the others at the same and suggested he told them to do what was best for them. It was likely that the Claimants discussed what they were going to do when they received the investigation letters. There were several other references in the documents which suggested the Claimants had been discussing things together. We concluded that the Claimants did collectively discuss what they should do throughout the processes. The disciplinary investigations

[172]Shortly after Mr Orchard agreed to be the investigator into the allegations against the Claimants, he was taken ill and signed off on sick leave. Mr Orchard returned to work on 18 February 2021. On that day the background was explained to him and Mr Orchard was advised that the Claimants were on sick leave. Mr Gibbons sent Mr Orchard the final terms of reference for the investigation on 23 February 2021. Mr Gibbons said in an e-mail on 23 February 2021, following a suggestion by Ms Thomas to amend the terms of reference, that from the outset the investigation was not about the dispute with senior management about KTB and Mr Bell had always encouraged interviewers to give views on such matters.

[173]On 1 March 2021, Mr Gibbons became aware that Mr Orchard had commenced another period of sick leave and it was unclear when he would return to work. Mr Gibbons looked for another investigator. On 3 March 2021, Ms Matthews agreed to undertake the investigation. Mr Gibbons emailed her the initial fact finding document. Ms Matthews was working as Senior Executive Officer in the International Trade Division and had never met the Claimants. She did not know that the Claimants had sent the emails on 20 November 2020 or what they contained. She later became aware the e-mails had been sent during her subsequent investigation meetings with the Claimants, however she was not given copies of the emails. Ms Matthews did not see the e-mails sent by the Claimants during her investigation and saw them for the first time in the hearing bundle for the Tribunal. Ms Matthews terms of reference were to ascertain whether the alleged comments had been made. We accepted that she had no knowledge of what had been said in the Claimants e-mails whilst she was carrying out her investigation.

[174]On 3 March 2020, Ms Thomas sent Ms Matthews copies of the notification of the investigation to the Claimants, the initial fact finding document and screenshots taken by Mr Davies of the group chats. An abridged background was provided, in which it was said, “An interviewer team in Shropshire were unhappy about some changes cascaded by senior management and voiced their opinions to Ian Bell rather than to their management chain.” Background to the creation of the Team Minus AB group was set out. She then said, “Four main ringleaders were identified – Steve has already notified you on the TORs sent to you, we will need a separate investigation report for each individual as the charges are different.” [p573] Ms Turner said this was detrimental to her because it was a defamatory statement capable of prejudicing Ms Matthews against them. We accepted Ms Matthews’ evidence that she had no knowledge of what was in the e-mails and that the reference to ringleaders in the e-mail had no influence upon her.

[175]On about 4 March 2021 Ms Matthews sent invitations to the Claimants and witnesses to attend meetings with her. Ms Matthews was aware the Claimants were on sick leave, but thought it was better to invite them to attend meetings and then rearrange them if they said they were too unwell to attend.

[176]On 5 March Ms Billinge e-mailed Ms Matthews and said she had joined ONS that week in an investigator role and asked if she could sit in. The Claimants were asked if they were content and Ms Walker and Ms Pennington agreed she could sit in on their interviews.

[177]Ms Matthews interviewed AB on 16 March 2021, at which Ms Billinge was an observer. He said that he became aware of an e-mail sent by Mrs Pennington to the team saying AB was unhappy with the situation and Mrs Walker responded by saying he was spying on them. Mr Raybould made him aware of the e-mails. The team chat stopped having messages put on it. He was then made aware of a group called ‘Team Minus Andy’ being created but he did not know who started it. From that time up to his interview only 2 members of the team had spoken to him.

[178]Ms Matthews interviewed Ms Evans on 16 March 2021, at which Ms Billinge was an observer. Ms Evans referred to Mrs Walker and Ms Turner putting posts on yammer expressing their unhappiness and in her opinion they were trying to get colleagues in the field onside with them. From the comments made it suggested to her that the documents attached to Ms N Jones’ e-mail had not been read. AB had then contacted her saying that the team were saying not to listen to her, she as lying and she was trying to call them. On 25 November 2020 AB had complained to her about being excluded and the team minus Andy chat group.

[179]Ms Pennington was interviewed on 16 March 2021. She referred to sending her e-mail on 20 November 2020, but did not say what the contents were. AB had raised his voice and been angry with her on 25 November 2020. She did not want others to be shouted at so she created the group. She provided an explanation for the comments. Mr Manning, trade union representative queried why there had not been informal resolution. In crossexamination Mrs Pennington accepted Ms Matthews was impartial.

[180]Ms Matthews interviewed Ms Hunt on 17 March 2021, at which Ms Billinge was the notetaker.

[181]Ms Turner was interviewed on 23 March 2021. She was asked what ‘A***’ meant and said she could think of 12 words it could be and anyone who saw an offensive term supplied it themselves. Her union representative argued that no one found it offensive. Ms Turner queried the date when the comment was made and asked for a screen shot with the date on it.

[182]Mr Adams was interviewed on 24 March 2021. Mr Adams queried how ‘bullshit’ was offensive. His union representative said that they needed to know who was offended. In relation to the ‘bell end’ reference he said he had a problem with his short term memory and it was a way of remembering. He said that the background was a letter to top brass.

[183]On 24 March 2021, Ms Evans e-mailed Ms Thomas [p667] raising concerns that the Claimants had told others about the disciplinary case. She referred to two interviewers expressing concerns about how the case had been handled and that at team meetings none of the team would acknowledge AB. She also referred to all claimants having OH referrals. Mr Adams had two referrals, at the first he answered the practitioner’s questions, however at the second he refused to answer questions and said he was attending so it could be recorded he had spoken with a director of ONS about the illegality of the disciplinary process. She asked if there was anything they could do to try and prevent further unpleasantness and disruption. We accepted Ms Evans evidence that she sent the e-mail because she was concerned that there had been a breach of confidentiality and she was seeking advice.

[184]On 22 March 2021 Mrs Walker responded to Ms Matthews invitation to attend a meeting on 23 March 2021 and said she could not attend because her Trade Union representative, Mr Manning, was not available. They agreed to reschedule to 25 March 2021. We accepted Ms Matthews’ evidence that she asked Mrs Walker to attend a meeting because she was required to interview her as part of the investigation.

[185]The disciplinary policy, in relation to sickness absence, noted that being unfit for work did not necessarily mean the employee was unfit to attend disciplinary meetings. It said that an OH report may be of benefit and referred to alternatives to attending work for meetings. Mrs Walker referred to being treated differently to Ms Hunt and Mr Raybould. Ms Matthews did not seek to interview Mr Raybould and Ms Hunt attended her meeting with Ms Matthews and was not off sick at the time. We did not accept that Ms Matthews treated Mrs Walker differently.

[186]Mrs Walker attended the meeting on 25 March 2021, accompanied by Mr Manning. Mrs Walker fully engaged with the meeting. She said that the matter had gone straight to an investigation rather than through an informal process. She referred to e-mailing Mr Bell and expressed concerns about the content of Ms Jones’ e-mail. Ms Pennington had e-mailed many people but accidentally omitted Ms Hunt. She said AB and Ms Evans were angry about it. In relation to her comment about the team name she said that her comment was made because it avoided confusion between the two groups. She referred to AB having right-wing racist chants. The comment about AB thinking it was quiet was a fact. She said the process was a witch hunt.

[187]At some point after the meeting with Mrs Walker, Mr Manning telephoned Ms Matthews. Mrs Walker alleged that Ms Matthews told him that she would be recommending that there was no case to answer. Mrs Walker was not party to the telephone call. Ms Matthews, in crossexamination, denied that she said that to Mr Manning and said she could not say evidence was not there when it was. We preferred the evidence of Ms Matthews and did not accept that she said she would recommend no case to answer.

[188]During the meetings with Ms Turner, Mrs Pennington and Mr Adams, they suggested that Ms Matthews interviewed other team members to see if they were offended. Ms Matthews did not consider this was proportionate or necessary on the basis that the comments were not made about them and they would effectively be character witnesses. Mrs Pennington and Mr Adams raised procedural issues and Ms Matthews advised them raise such issues at decision meetings.

[189]On 16 April 2021, Ms Thomas had seen the draft investigation reports. Ms Thomas e-mailed Mr Gibbons [p707] and said she was aware that Mrs Pennington had sent an e-mail on 20 November 2020 but she had not had sight of its content and it seemed key to the case. She asked if he had a copy or whether Ms Matthews should try and source it. Mr Gibbons replied [p708] that he did not have a copy of the original, Ms Matthews might have a copy or she might have considered it not to be relevant. We accepted that Ms Matthews did not have a copy and did not know what its contents were.

[190]Ms Matthews drafted an investigation report for each Claimant, which were finalised on 19 April 2021 and sent to Mr Gibbons. Each report set out a summary of what had been discussed with the relevant Claimant and other relevant evidence from the investigation.

[191]In relation to Mr Adams, Ms Matthews found that the words had been posted by him, they could be viewed as offensive or abusive and there was a case to answer.

[192]In relation to Mrs Walker, Ms Matthews found she had posted the comments. The comment about AB thinking the team must be quiet could be viewed as mocking or taking satisfaction at him not being included. The waste of space comment could be considered to be offensive or abusive. There was a case to answer.

[193]In relation to Ms Turner, Ms Matthews found that she did not deny that the asterisks replaced letters so that the word was ‘arse’. It appeared more likely than not that was what she intended or at the least something offensive. She considered there was a case to answer.

[194]In relation to Mrs Pennington, Mrs Pennington had established the Team Minus Andy group which excluded AB and included the rest of the team. She had also posted the terms ‘Bell end’ and ‘Tossers’. There was a case to answer.

[195]Ms Matthews did not accept that her investigation was protracted, it taking just under 7 weeks from the time she was appointed to providing her final reports. Disciplinary hearings

[196]On 20 April 2021, Mr Gibbons sent each Claimant a letter inviting them to attend a formal meeting under the disciplinary policy. They were each informed the allegations against them and of the possible sanctions, namely a first written or a final warning. The investigation reports were attached. They were informed of their right to be accompanied. The letters also said that if they or their companion could not reasonably attend the meeting they should propose a new date to allow the meeting to take place within 5 working days of the original date. If they did not inform the Respondent or failed to attend the rearranged meeting consideration of the case would take place in their absence. Mr Gibbons was due to retire on 30 April 2021.

[197]On 22 April 2021, Mr Manning wrote to Mr Gibbons on behalf of all Claimants. He said, “Despite their ongoing sickness absence all four understand it would be better to engage with the process and hold these hearings at the earliest opportunity.” He said he would accompany the Claimants, however he could not attend the meetings at the times on 27 April and suggested alternatives. Mrs Walker

[198]Mrs Walker attended her meeting on 28 April and did not suggest that she was not well enough to attend. Her evidence was that she felt under pressure to attend because Mr Gibbons was going to retire. She said she felt vulnerable and wanted it out of the way as soon as possible. Mr Gibbons’ evidence was that if Mrs Walker said she was not well enough to attend he would have rearranged her meeting, however Mr Manning had said she wanted to proceed.

[199]In the meeting Mrs Walker said that the investigation had been onesided and Ms Evans and AB had been untruthful portraying her as a bully and she was being attacked along with her other colleagues for the e-mail she sent with her colleagues to Mr Bell. In her evidence Mrs Walker suggested AB chose not to be part of the Team Minus AB group because he wanted nothing to do with the e-mail. She said the team name was simplistic and it was fact that she liked it. Mrs Walker said that ‘waste of space’ was not an offensive comment. She initially said the comment was aimed at the e-mail not Ms Jones, but later said it was caused by predictive text Mrs Walker said that AB did not bring the complaint because he felt side-lined it was because he, Ms Evans, Ms Hunt and Ms Thomas were annoyed about the e-mail. Mr Gibbons replied by saying, “As far as I’m concerned, it’s nothing to do with the e-mail to Ian Bell, it’s to do with actions against AB when he said he didn’t what to be part of it.” Mrs Walker and Mr Manning on her behalf made representations to Mr Gibbons.

[200]Mrs Walker accepted in cross-examination that on the face of it the complaint and matters Mr Gibbons was considering had nothing to do with the e-mail, but she could not say what was in his mind.

[201]Mr Gibbons considered the evidence and sent Mrs Walker a letter on 30 April 2021 with the outcome. He found that the comments were made by Mrs Walker and the comments about AB and team name were sarcastic and playing to the crowd. He considered the comments were made to virtually the whole team and were only likely increase divisions between AB and the team. The comment about Ms Jones was referring to her and was clearly discourteous. He reassessed the seriousness of the conduct to minor and after taking into account mitigation decided an informal warning was the appropriate penalty. [p812-813]

[202]We accepted that Mr Gibbons formed the view that the messages could increase the division between AB and the team and that the comment about Ms Jones was discourteous and offensive. In cross-examination it was put to him that referring to the comments about AB as sarcastic and playing to the crowd was a derogatory comment. Mr Gibbons said it was necessary because it was part of his decision. We accepted that he considered the comments were of such a type and we accepted his evidence. He was also cross-examined on the basis that the Team Minus AB group was only in existence for 24 hours, however we accepted his evidence that was not what the investigation was about, rather it was the setting up of the group in the first place.

[203]Mrs Walker suggested in her evidence that Mr Gibbons was part of a conspiracy against the Claimants and that he knew about the e-mails they had sent. In cross-examination Mr Gibbons denied that the motivation for the decision was the e-mails to Mr Bell. He said that Mr Bell actively encouraged interviewers and staff to contact him. There was nothing in the text of the e-mails which was inappropriate, it might have been better to go to managers in the chain, but that was minor. We accepted Mr Gibbons’ evidence. Ms Turner

[204]Ms Turner attended her disciplinary decision meeting on 28 April 2021 and she was accompanied by Mr Manning. During the meeting, it was put to Ms Turner that A*** alluded to the word ‘arse’ Ms Turner said that if someone read her comment as ‘Brain up Arse’ that was their head. She said she could think of at least a dozen words it could be. She said the conversation was private. She also wanted evidence that she made the comment that week. She said she made the comment to give her colleagues something to smile about, but would not say what she meant by ‘A***’. She also said that no one found what she said was offensive and she had not been provided with such evidence.

[205]During the hearing before the Tribunal, Ms Turner answered questions about what A*** meant in a similar way and said that no one found the comment offensive. She also said that she had asked Mr Gibbons for proof of the dates and he had questioned why it mattered and they should assume it was made between 18 and 25 November 2022. Ms Turner accepted, in cross-examination that she knew she had made the comment. Mr Gibbons’ evidence, which we accepted, was that he had checked the position and confirmed in the outcome letter that the comment was posted in that period.

[206]The comment ‘Brain up A***’ was with reference to a senior manager using the acronym BAU. Mr Gibbons was disappointed about Ms Turner’s unwillingness to say what the A*** was intended to mean. On 30 April 2021, Mr Gibbons sent Ms Turner an outcome letter. He referred to her declining what A*** meant and confirmed the post had been made in the period in question. In relation to the contention that the post was private he said that it was made to virtually the whole of the team, tensions had been running high and it was important to keep communications courteous. He reassessed the level of serious to minor misconduct and considered the comment was flippant rather than intending to cause offence. She was issued with an informal warning and reminded to be courteous in correspondence to colleagues. We accepted that the informal warning was not recorded on her file.

[207]When Ms Turner was questioned as to why she said Mr Gibbons had been influenced by a protected disclosure, she said that if the e-mail had not been sent she would not have been in a disciplinary hearing and Mr Gibbons had been in contact with Ms Evans in late November/early December 2020. She accepted that Mr Gibbons reassessed the level of offence and considered it was minor misconduct. We accepted that Mr Gibbons gave her the benefit of the doubt and that he considered the emails sent on 20 November 2020 to be an entirely separate matter and he was only considering the events which took place subsequently.

[208]Ms Turner subsequently successfully appealed the decision and the decision was overturned and the sanction rescinded.

[209]Mr Adams attended a decision meeting with Mr Gibbons on 27 April 2021 and was accompanied by Mr Manning. During the hearing he explained that he forgets names of people or places and he remembered part of the name and made the rest up and the person referred to was a friend of his. He did not recognise, ‘bullshit’ as a profanity or being offensive. He said no one had been offended by what he had written and there was no evidence of that. He said there were a catalogue of issues between him and Ms Evans and that she was a rubbish interviewer. He referred to having the right to offend people but not the right to be offended. He also said that he and another member were going to take a private prosecution out against Mr Gibbons, which Mr Gibbons felt to be hostile. Mr Adams made no reference to health and safety in the decision meeting or his subsequent appeal.

[210]In cross-examination Mr Adams maintained that the terms ‘bell end’ and ‘bullshit’ were not offensive. Mr Gibbons considered that they were.

[211]On 30 April 2021, Mr Adams was sent an outcome letter. It recorded that Mr Adams had argued that the terms ‘bell end’ and ‘bullshit’ were not offensive. He was given the benefit of the doubt in relation to the ‘bell end’ reference, after explaining he had memory issues with names and it was with reference to a surname. The term ‘bullshit’ was a profanity and whilst not directed at participants in the chat group it was not acceptable in written communications with colleagues. It was considered minor misconduct rather than serious misconduct and he was issued with a first written warning. Mr Gibbons considered that no explanation had been given for the term ‘bullshit’ and he considered the term offensive and that it was directed towards managers.

[212]Mr Adams was cross-examined about the why Mr Gibbons would have been influenced by the e-mails on 20 November 2020, particularly when he was due to retire. Mr Adams suggested that Mr Gibbons wanted to make an impact before he left, there was no evidence to support the assertion and we did not accept the suggestion. He also suggested that Mr Gibbons instigated the investigation with Ms Evans and ran with it. We accepted Mr Gibbons’ evidence that the allegations had been set due to the contents of the messages.

[213]Mr Adams subsequently successfully appealed the decision and Ms Studley rescinded the disciplinary outcome and sanction.

[214]Mrs Pennington attended a decision meeting with Mr Gibbons on 27 April 2021, at which she was accompanied by Mr Manning. Mrs Pennington said that she had not meant to be offensive by using the word ‘tossers’ and it was in the context of a private conversation. Mr Gibbons told her that no one on the group had been offended and in cross-examination Mr Pennington accepted he was giving her the benefit of the doubt. In relation to setting up the Team Minus Andy group, she said he had called her and been very aggressive. She had set up the group so that he would not have a go at anyone else and the name was factual. Mr Gibbons told Mrs Pennington that no-one was criticising the e-mail sent to Mr Bell.

[215]On 30 April 2021, Mrs Pennington was sent the outcome by Mr Gibbons. He said that there had been a case to answer in relation to setting up the group, but he also had to consider her motivation. He accepted she provided a credible reason and she had not established it with the intention of bullying or isolating AB and the allegation was not upheld. The reference to ‘Bell end’ was a commonly used nickname and not meant to cause offence. In relation to ‘tossers’ Mr Gibbons concluded it was with reference to colleagues in her line management chain and was used in an aggressive and offensive manner. It was offensive and inappropriate, but was not meant to be seen. Mr Gibbons reassessed the seriousness and considered to be minor misconduct and issued a first written warning. She was informed that she had 10 days to appeal to Ms Kinsey.

[216]In cross-examination Mrs Pennington accepted that Mr Gibbons had given her the benefit of the doubt in relation to setting up the Team Minus AB group and said that it showed he was a man willing to listen to her. She also accepted she was given the benefit of the doubt in respect of the ‘bell end’ comment. She also accepted that using the word ‘tossers’ was offensive and inappropriate. We accepted Mr Gibbons’ evidence that he did not know what happened to other people who had made other comments and that he based his decision on what he had been presented with.

[217]In terms of whether her e-mail had influenced Mr Gibbons, Mrs Pennington said she believed it was in his mind. Disciplinary appeals

[218]On 5 May 2021 Mrs Pennington was informed that Ms Kinsey was no longer able to hear her appeal and that she would be informed when there was a replacement.

[219]On about 7 May 2021 Ms Studley, Deputy Director the Infection Survey Analysis Division, was asked to determine the Claimants’ appeals against their disciplinary sanctions, she was not told about the subject matter. She was informed that the Claimants had raised concerns about impartiality. We accepted that she did not know the Claimants or know of them. She agreed but said that she could not start until early June due to work commitments and a holiday. Mrs Walker accepted in crossexamination that Ms Studley was not part of the conspiracy against them. We accepted Ms Studley’s evidence that she did not see the e-mails the Claimants sent on 20 November 2020 and had not been told about their contents. We accepted that her focus was on the procedural matters raised by the Claimants

[220]On 13 May 2021, the Claimants were informed that Ms Studley would hear their appeals and that the date for making any appeal was extended to 24 May 2021. All four Claimants appealed against the disciplinary outcomes.

[221]Mrs Pennington appealed on 20 May 2021. She raised that there had been delay, the likely penalty had not been communicated in the investigation notification and witnesses had not been interviewed about the nature and wording of the text discussion which would have established a normality of situation. She asked for the process to be overturned.

[222]In Mrs Walker’s appeal document she raised a number of procedural issues including that there had not been early intervention and delay. She also said it was witch hunt orchestrated by the witnesses and two individuals lied to the investigation manager.

[223]Ms Studley received the Claimants’ appeal letters on 19 and 20 May 2021. Jo Wilson was allocated as an HR caseworker to assist her.

[224]On about 7 June 2021 Ms Studley obtained further information from Ms Matthews, namely that she had not investigated informal resolution.

[225]On 8 June 2021, the Claimants asked for an update about their appeal and Ms Studley said she was continuing with her fact finding and would invite them to a meeting as soon as it had concluded. The Claimants were sent invitations to appeal meetings on about 10 June 2021.

[226]Mrs Pennington’s, Ms Turner’s and Mr Adams’ appeal meetings were heard on 17 June 2012.

[227]Mrs Pennington discussed how the delays since the start of the investigation had affected her. She said that at the meeting with Mr Gibbons she had been told that informal resolution had been attempted but she had not wanted to engage and there was no evidence to show that. She also provided a written statement to Ms Studley. Mrs Pennington did not refer to her e-mail dated 20 November 2020 or provide Ms Studley with a copy

[228]Mrs Walker attended her appeal hearing on 18 June 2021.She said that Ms Evans, Ms Fernandes, Ms N Jones and Ms Hunt had stitched them up. During the course of her hearing she said that AB had not been bullied and described him as a misogynistic racist. Discussion took place about informal resolution and what Mrs Walker would have done if it had been attempted. Ms Studley said that Mrs Walker had used strong language and referred to someone being a racist and a bully and she felt uncomfortable not acting on them and wanted it flagged. Mrs Walker referred to her e-mail to Mr Bell, saying there had been unlawful contract changes, however she did not send it to Ms Studley.

[229]Between 18 and 22 June 2021 Ms Studly considered all of the verbal and documentary evidence. On 22 June she asked Ms Evans to confirm that no early informal discussion had taken place with the Claimants. Ms Evans replied the same day that no informal discussion was held when the messages about ‘Team Minus AB’ were discovered. She then raised various points about the messages sent and the meeting on 25 November 2020. We accepted Ms Evans evidence that when she had previously said that informal resolution had been attempted she had referred to the telephone calls she made or tried to make on 23 November 2020 and that she had not been asked to undertake informal resolution when the messages were later discovered.

[230]On 23 June 2021, Ms Studley sent appeal outcome letters to each Claimant. All appeals were successful the disciplinary decisions were overturned and rescinded on the basis that there should have been informal resolution and it was a missed opportunity to resolve the issue.

[231]In Mrs Walker’s outcome letter, Ms Studley added, “Nonetheless during our discussion you did use strong language and assertions, which we discussed, and I would urge you to consider the impact this may have on colleagues. I would draw your attention to the Civil Service Code of Conduct.” We accepted Ms Studley’s evidence that she did not think it was appropriate to make such assertions if a formal complaint had not been raised so such allegations could be properly investigated and she was reminding Mrs Walker to be mindful of the language she used. All Claimants were reminded of this.

[232]In Mrs Pennington’s outcome letter, Ms Studley did not uphold the points about delay to the process. She said that there was no evidence she had been contacted early and it was a missed opportunity to resolve the issue and upheld the appeal on that basis. She drew Mrs Pennington’s attention to the Civil Service Code. Mrs Pennington accepted in crossexamination that her appeal had been successful and the warning was rescinded and she had been treated fairly by Ms Studley. Mrs Pennington said she was disadvantaged in the decision because she wanted it to be rescinded on the grounds she raised, but she was happy it was gone. Ms Studley was not cross-examined about her decisions in relation to upholding the appeal.

[233]We accepted Ms Studley’s evidence that she had never seen the emails sent by the Claimants on 20 November 2020 and that she was not aware of their contents or what had been raised by them. She had been asked to review the disciplinary procedure and that was the only aspect she was aware of.

[234]In relation to the allegation that there had been delay to Mrs Pennington’s appeal, Mrs Pennington was cross-examined about her saying the appeal took 19 to 20 weeks and confirmed that what she was complaining about was the grievance process. Mrs Pennington accepted that she had withdrawn her complaint about the length of the grievance process and asked if she could withdraw the allegation. The grievances raised by the Claimants

[235]On 5 March 2021, Mrs Walker raised a grievance with Mr Lambert, Director of Survey Operations. On 5 March 2021 Mr Adams raised a grievance with Mr Lambert and Sir Ian Diamond. Mr Lambert started in the role in March 2021, prior to which he had been leading the Covid-19 Infection Survey. Mr Woodland had been acting as Deputy Director of Social Survey Operations, whilst Mr Lambert had been on the Covid-19 Infection Survey operation. When Mr Lambert started as Director of Survey Operations, Mr Woodland gave him a handover. Mr Lambert was told that some employees had raised concerns about KTN, but he was not given any details or told who had raised concerns. He was not told what the concerns were about.

[236]Mrs Walker’s grievance related to Ms Evans’ call on 23 November 2020, the meeting on 25 November 2020, being accused of bullying AB and the subsequent disciplinary action. She also referred to AB admitting to making hours up. [p584]

[237]Mr Adams raised a grievance against Ms Fernandes, Ms Evans, AB, Mr Gibbons, Ms Hunt, Ms N Jones, Ms Williams and Mr Woodland. He referred to AB being overbearing to women and making inappropriate comments about colleagues from Merseyside. He also complained about the meeting on 25 November 2020, recruitment and retention and the disciplinary process which had been followed. [p588]

[238]Mr Lambert forwarded the grievances to Mr Gibbons and asked for advice on the way forwards. We accepted that Mr Gibbons was the local expert on grievances and Mr Lambert was asking for a reminder on how the processes operated. Mr Gibbons was not a person listed in the grievances and Mr Lambert was not aware of his involvement in the disciplinary process. He then sought advice from Ms Donovan of HR. Ms Donavan confirmed that Mr Adams and Mrs Walker were under ongoing disciplinary proceedings and advised that it would be inappropriate to progress the grievances because of the ongoing disciplinary proceedings and those matters would be best dealt within those proceedings.

[239]The grievances were acknowledged and Mr Lambert asked to speak to Mr Adams and Mrs Walker. Mrs Walker said that she was unable to meet due to the state of her health. Mr Lambert e-mailed her on 8 March 2020 and said that her grievance made reference to the disciplinary investigation and the correct place to raise those issues was within that process. He asked her to provide further information. He also referred to ONS policy that grievances must be raised without unreasonable delay, which in most cases was 3 months, but a grievance is not automatically rejected and asked why matters in November were being raised at that stage. Mrs Walker confirmed in oral evidence that the allegation of detriment did not relate to this decision but that it related to Ms Morgan not being independent and Ms Billinge observing her grievance meeting.

[240]Mr Lambert spoke to Mr Adams on 11 March 2021. In Mr Adams’ witness statement he said that he told Mr Lambert that the action against him was based on a letter he signed criticising a decision that would put the interviewers back into the field and given the covid situation at the time would put both interviewers and the public in danger. When asked in crossexamination what he said, Mr Adams said he could not say precisely but generally it would be a terrible decision to send them back into the field for the interviewers and the public due to covid-19. Mr Lambert did not accept that health and safety concerns were raised.

[241]Following the meeting Mr Lambert sent Mr Adams a summary of what they discussed [p622]. The notes referred to discussions about the disciplinary investigation and the resolution process and that the complaints about the disciplinary process should be brought up in those proceedings. He was asked to provide further information about his complaints. He was also referred to the ONS policy and about the time to raise a grievance. Nothing was recorded about concerns being raised about health and safety. Mr Adams did not seek to correct this summary. We preferred Mr Lambert’s evidence and did not accept that Mr Adams raised any concerns about health and safety.

[242]On 25 May 2021, Mrs Walker submitted a further grievance to Mr Lambert. This was in relation to Ms N Jones colluding with Ms Fernandes, Ms Evans, Ms Thompson and Mr Gibbons for her disclosing Ms Jones’ email dated 18 November 2020 to senior management and following her email of 20 November 2020. She referred to incidents of bullying and harassment. She referred to AB making a malicious grievance against her and her colleagues and he had made false allegations and he had made false claims for hours not worked. She alleged Mr Raybould had maliciously communicated with AB to enable false allegations to be made and that he had breached the ICT policy.

[243]On 27 May 2021, Mr Adams raised a grievance with Mr Lambert about the disciplinary proceedings and its appeal process and said it had been a witch hunt.

[244]On 1 June 2021, Ms Turner raised a grievance with Mr Lambert about procedural matters in the disciplinary process and delay. She also raised a further grievance about: (1) AB being racist, homophobic and misogynist and he falsified and made up interviews,(2) Mr Raybould telling AB about the chat group, (3) Ms Evans pursuing a vendetta against her and her colleagues, (4) Ms Fernandes stopping meetings, (5) Mr Gibbons appointment as decision manager, and (6) Ms Thomas seeking to influence Ms Matthews by describing them as ring leaders.

[245]On 1 June 2021 Mr Adams submitted a grievance to the National Statistician about the timing and procedures of the disciplinary process. He then forwarded his earlier grievances to the National Statistician on 4 June 2021.

[246]On 4 June 2021, Mrs Pennington sent a grievance to Mr Lambert about:(1) AB vexatiously and maliciously raising a grievance against her,

(2) the actions of Ms Evans,

(3) Ms Fernandes cancelling Shropshire get togethers,

(4) Mr Gibbons in his actions during the disciplinary process,

(5) Ms Thomas’ involvement in the disciplinary process, and

(6) being punished for sending the e-mail on 20 November 2020.

[247]Mr Lambert asked Mr Woodland to deal with the grievances of Mrs Walker, Ms Turner and Mrs Pennington. Mr Adams had also raised his grievance with the National Statistician who had then referred it to the ONS Employment Relations team who allocated the grievances to Mr Booth, Security and Compliance Lead within the Security and Information Management Division. Mr Booth had no knowledge of Mr Adams or the other Claimants. Mr Adams said in oral evidence that this was done to isolate him and to have a psychological effect. We concluded that the reason why Mr Adams’ grievance was dealt with separately was because he had also raised it with the National Statistician . Grievances by Mrs Walker, Ms Turner and Mrs Pennington

[248]After the Claimants were informed Mr Woodland would manage their grievances, they expressed unease and said that they wanted a different decision manager on the basis that he had previous involvement. Mr Woodland stepped back and Mr Lambert appointed Ms S Jones, SPC Branch Head (Business Data Operations Division) as decision manager. Ms Jones worked in a different department.

[249]On 21 July 2021, Ms Morgan was assigned as investigator of Mrs Walker’s, Ms Turner’s and Mrs Pennington’s grievances, following a conversation with Ms Donovan, Employment Relations Team Manager. Ms Morgan completed ACAS investigator training in 2012 and since then had undertaken, on average, 2 investigations a year. She had no previous relationship with anyone involved in the subject of the grievance. Mrs Walker said in evidence that Ms Morgan was friends with Ms N Jones and this could be seen on yammer. In closing submissions Mrs Walker said that Ms Morgan followed Ms N Jones on Yammer. This was not put to Ms Morgan in cross-examination. We accepted Ms Morgan’s evidence that she had no relationship with the Claimants or the witnesses/people subject to the grievance and that she did not know them.

[250]Mrs Pennington asked on several occasions for there to be an external agency to be appointed to investigate. This was not responded to. Mrs Pennington accepted in cross-examination that there was no policy to have an external investigator. She also accepted that she did not know Ms Morgan before and that Ms Morgan did not know the managers. She said she felt that in the past she had not been listened to and an external investigator would listen.

[251]On 22 July 2021, Ms S Jones wrote to Mrs Walker, Mrs Pennington and Ms Turner and said that she could not progress the complaints against Mr Gibbons and Ms Thomas because they should have been covered in the disciplinary appeal process. The other complaints would proceed and they were informed Ms Morgan would be the investigator.

[252]On 27 July 2021, Ms Morgan spoke to Ms Wilson, complex caseworker. She was then sent the terms of reference which identified , Ms Farrell, AB, Ms Evans, Ms Fernandes, Ms Hunt and Mr Raybould as interviewees/witnesses. We accepted that the purpose of the investigation was to see if there was a case to answer and to gather evidence from all sides to help the decision manager to decide what to do next. Ms Morgan started by reviewing the grievances and listed evidence she thought might be missing and to identify any other witnesses. She then drafted some questions for witnesses, which she sent to HR to check and make sure she had not missed anything. Mrs Walker accepted in cross-examination that there was nothing wrong in running through the questions for interview.

[253]On 30 July 2021, Ms Morgan sent e-mails to Mrs Walker, Ms Turner and Mrs Pennington to attend investigation meetings with her on 13, 9 and 10 August 202 respectively. The Claimants’ trade union representative, Ms Benjamin was on leave between 9 and 23 August 2021 and they informed Ms Morgan and said they could not attend. Revised dates in early September for the investigation meetings were sent to the Claimants. On 11 August Mrs Walker e-mailed Ms Morgan and said that she was concerned regarding the date because it was another month to wait and asked if there was an organisational reason for the wait. Mrs Walker was informed that was the earliest opportunity for the interview to be rescheduled.

[254]Ms Morgan was conscious that the Grievance Policy said the investigation should be carried out in 30 days, unless there were extenuating circumstances. Normally she would interview the complainants first when conducting an investigation. She had already booked interview times with the other people she wanted to speak to. She took guidance from HR and was advised she could continue with the interviews already booked in order to avoid delays. Ms Morgan decided to proceed with the other interviews already booked so that she did not waste time. We accepted that she asked some further questions by e-mail after she conducted the interviews with the Claimants. At this stage she had not seen the e-mails sent by the Claimants on 20 November 2020 and did not know of their contents. Later, Ms Morgan was sent Mrs Pennington’s e-mail dated 20 November 2020 by Mrs Pennington. Ms Turner’s evidence was that in her later interview with Ms Morgan she was given the impression that Ms Morgan was going to speak to the other witnesses after she had spoken to the Claimants and this was misleading. The interview notes recorded that Ms Morgan said she would review the responses and see what additional questions she needed to ask Mr Raybould and anyone else and she would ask appropriate questions of other parties to make sure she had a full picture [p1340]. There was a further reference to “I will be speaking to them …”. Ms Morgan accepted that the comment suggested she would be speaking to them.

[255]Between 17 and 19 August 2021 Ms Morgan interviewed AB, Mr Raybould, Ms Evans, Ms Fernandes and Ms Farrell. It was put to Ms Morgan that she only asked 79 questions in total to those witnesses and that they were not thoroughly questioned. Ms Morgan did not accept the contention. The interview notes were detailed and substantial and the witnesses were asked questions about the allegations. We did not accept that Ms Morgan was not thorough in her questions. We were not taken to specific parts where the Claimants said that the interviews were not thorough.

[256]In relation to Ms Evans’ interview on 19 August 2021, Ms Turner said that the detriment to her in relation to the comments she made on Yammer was that Ms Evans was not required to provide the proof of what had been said and her word was taken on face value. She referred to the part of the interview where Ms Evans said it looked like scaremongering and misinformation was being shared [p1257]. These comments were not part of the disciplinary investigation and Mrs Turner was not charged with spreading misinformation. Ms Turner said that the comments were not made to Ms Matthews but to Ms Morgan on 19 August 2021, when she said it looked to her as the comments were scaremongering. Ms Evans was not cross-examined about this interview.

[257]The Claimants relied upon AB saying he had not made allegations against Mrs Walker, Ms Turner and Mrs Pennington. This was taken out of context. He had already referred to the Team Minus Andy chat being set up and that he felt ostracised and by the time of the interview no one in the team would talk to him.

[258]During their interviews, Ms Evans and Ms Fernandes said that they had deleted e-mails after complying with SAR requests. We accepted Ms Evans’ evidence that she had undertaken searches under numerous SAR requests from the Claimants and that she had sent everything she had. When the grievance was raised against her, she was very stressed and had a breakdown in July 2021. She was prescribed antidepressants. A further SAR request was made, with which she complied and she then felt she had enough and deleted everything. By this time she was no longer in the Claimants’ line management chain.

[259]We accepted Ms Fernandes’ evidence, that she had left the department and that she had also received repeated SAR requests and when she received the final one she sought advice from the data retention office. She followed the guidelines and looked for everything she had and after complying with it deleted her e-mails, thinking that she needed to do this because she had left the department.

[260]Following her interview Ms Evans provided further information to Ms Morgan, some of which was included in her report. AB also provided a document which was not considered relevant.

[261]On 1 September 2021, Ms Morgan interviewed Ms Turner. Ms Turner explained in detail her allegations against AB, Mr Raybould, Ms Evans and Ms Fernandes. She was given the list of people Ms Morgan had been provided with as witnesses and Ms Turner suggested some more people to give examples of AB’s behaviour. After the meeting Ms Turner sent Ms Morgan a timeline and some yammer posts. In cross-examination Mrs Turner accepted that the resolution she was seeking was for AB, Ms Evans and Mr Raybould to be punished.

[262]On 2 September 2021, Ms Morgan advised Ms S Jones that the investigation had been delayed, in accordance with the policy.

[263]On 3 September 2021 Ms Walker attended her interview with Ms Morgan. The meeting could not be completed and it concluded on 8 September 2021. Mrs Walker explained in detail her grievances against each person. Mrs Walker accepted in cross-examination that the resolution she sought was the dismissal of Ms Evans and action to be taken against Mr Raybould. She later provided additional documents, approximately 50, including her e-mail of 20 November 2020.

[264]On 6 September 2021, Ms Morgan interviewed Mrs Pennington. There was insufficient time in the meeting to conclude it and a further meeting took place on 10 September 2021. Mrs Pennington also provided a witness statement and sent Ms Morgan further documents, this included her e-mail dated 20 November 2020. Mrs Pennington gave full accounts of her allegations and concerns.

[265]On 9 September 2021, Ms Morgan interviewed Ms N Jones.

[266]The Claimants, in their interviews, had asked for additional people to be questioned. We accepted that Ms Morgan had been given terms of reference for each grievance and that they were very specific about what she was to investigate. The additional witnesses referred to by the Claimants were sought to be interviewed in order to give evidence of how Ms Evans had treated other people or to give evidence about meetings which were not part of the grievance against AB, or to seek other examples of his behaviour which was not part of their grievances. We accepted Ms Morgan’s evidence that she thought those additional people would not assist her, within the confines of her terms of reference.

[267]After Ms Morgan completed the interviews she reviewed the evidence and considered whether she needed to re-interview anyone. Ms Morgan thought that the questions had been answered and it was unnecessary to do so.

[268]Ms Turner said that Ms Morgan had not included in her report yammer posts she had sent her in relation to Ms Evans saying that misinformation had been provided. The Claimants had provided a large amount of information to Ms Morgan, however they did not question her about the specific documents she did not include in her report. We accepted that Ms Morgan reviewed the documentation and included the information that appeared relevant to the grievances, within the confines of the terms of reference.

[269]On 26 October 2021 Ms Morgan compiled investigation reports for each Claimant.

[270]In Mrs Pennington’s report, Ms Morgan summarised the witnesses spoken to, set out a chronology of events and outlined the concerns. She summarised what Mrs Pennington said about AB, Ms Evans, Ms Fernandes and what the various witnesses had said about the allegations. She said that the additional witnesses fell outside of the scope of her investigation. She then set out a summary of the findings against each complaint, identifying relevant parts of the evidence and referencing it to the appendices to the report. She identified where the evidence conflicted. She then provided her conclusions saying that there was not a case to answer in relation to AB and DE vexatiously and maliciously raising a grievance, that DE had used intimidation to collect evidence and that Ms Fernandes had put a stop to wellbeing meetings without reason. We accepted that the report was detailed and cross-referenced the evidence. There was no reference to the contents of Mrs Pennington’s e-mail dated 20 November 2020 and it was not listed as one of the appendices, although there was reference to it being sent.

[271]In Mrs Walker’s report, Ms Morgan summarised the witnesses spoken to, set out a chronology of events and outlined the concerns. She summarised what Mrs Walker said about Ms N Jones, AB, Ms Evans, Ms Fernandes, Ms Hunt, Mr Raybould and what the various witnesses had said about the allegations. She said that the additional witnesses fell outside of the scope of her investigation. She then set out a summary of the findings against each complaint, identifying relevant parts of the evidence and referencing it to the appendices to the report. She identified where the evidence conflicted. She then provided her conclusions saying that there was not a case to answer in relation to bullying and malicious communications by Ms Jones, AB vexatiously and maliciously raising a grievance, vexatious and malicious behaviour by Ms Evans, Ms Fernandes had put a stop to wellbeing meetings without reason, Ms Hunt setting up a meeting to collude with others and a vexatious and malicious communication by Mr Raybould. We accepted that the report was detailed and cross-referenced the evidence. Ms Morgan did not set out any information about what Mrs Walker said in her e-mail dated 20 November 2020 and it was not listed as one of the appendices.

[272]In Ms Turner’s report, Ms Morgan summarised the witnesses spoken to, set out a chronology of events and outlined the concerns. She summarised what Mrs Walker said about AB, Mr Raybould, Ms Evans and Ms Fernandes, and what the various witnesses had said about the allegations. She said that the additional witnesses fell outside of the scope of her investigation. She then set out a summary of the findings against each complaint, identifying relevant parts of the evidence and referencing it to the appendices to the report. She identified where the evidence conflicted. She then provided her conclusions saying that there was not a case to answer in relation to: false allegations by AB, betraying confidentiality by Mr Raybould, holding a vendetta for speaking to senior management, collection of evidence before a formal investigation was undertaken by Ms Evans and, Ms Fernandes had put a stop to wellbeing meetings without reason. We accepted that the report was detailed and cross-referenced the evidence. There was no mention about the contents of the Claimants’ e-mails dated 20 November 2020 and they were not listed in the appendices.

[273]We accepted that Ms Morgan considered all of the evidence and recorded where there was a conflict and provided her opinion. Before Ms Morgan started her investigation she was unaware that e-mails had been sent on 20 November 2020. Mrs Walker and Mrs Pennington sent her the e-mails they sent on 20 November 2020. Ms Morgan referenced the e-mails in Mrs Walker and Mrs Pennington’s reports but not what they said. We accepted her oral evidence that she considered that the e-mail from Ms N Jones sent on 18 November 2020 was the catalyst to what happened. Ms Morgan was aware that the Claimants had raised concerns about that email and we accepted that she considered the contents of the e-mails dated 20 November 2020 were nothing to do with her. Mrs Pennington sent Ms Morgan a copy of her e-mail dated 20 November 2020. When it was suggested in cross-examination that Ms Morgan would not be bothered by the e-mail, Mrs Pennington replied that she was an employee of the ONS. Mrs Walker suggested that what tended to show that Ms Morgan was influenced by the e-mails were that the questions were not thorough and witnesses were decided to be irrelevant. Ms Morgan’s evidence was that those e-mails did not influence her.

[274]Ms Billinge observed some of the meetings held by Ms Morgan, because she was new to the ONS. Ms Morgan was not aware that she had been or would be assigned to investigate Mr Adams’ grievance. Grievance meetings and outcomes for Mrs Walker, Ms Turner and Mrs Pennington

[275]On 16 November 2021, Mrs Pennington attended a grievance meeting with Ms Jones at which Mrs Pennington and Ms Benjamin made further representations. Mrs Pennington did not refer to her e-mail of 20 November 2020 or its contents. She was sent an outcome letter on 23 November 2021. The complaints were not upheld and detailed reasons were provided. There was no reference to the e-mails sent on 20 November

[276]On 16 November 2021, Mrs Walker attended a grievance meeting with Ms Jones at which Mrs Walker made further representations. Mrs Walker did not refer to the e-mail sent by the Claimants on 20 November 2020 or their contents. She was sent an outcome letter on 23 November 2021 [p1840-1842]. The complaints were not upheld and detailed reasons were provided. It was acknowledged in the outcome letter that Ms Evans had deleted e-mails. There was no reference to the e-mails sent on 20 November 2020.

[277]On 17 November 2021, Mrs Turner attended a grievance meeting with Ms Jones at which she asked questions of Ms Morgan and made further representations. She was sent an outcome letter on 23 November 2021 [p1847-1849]. The complaints were not upheld and reasons were provided. There was no reference to the e-mails sent on 20 November 2020 or their contents. Ms Turner accepted in cross-examination that the outcome letter was thorough, but said it had been based on an incomplete picture.

[278]Ms Jones was unwell and on sick leave and had not provided a witness statement about her decisions. Mrs Walker accepted that she was unable to say whether Ms Jones would have seen or considered the e-mails of 20 November 2020. Grievance appeals of Mrs Walker, Ms Turner and Mrs Pennington

[279]On about 23 November 2021, Dr Thorsteinsson was asked to act as appeal manager in respect of the grievance appeals for Mrs Walker, Ms Turner and Mrs Pennington. Dr Thorsteinsson worked in the Business Surveys and Statistics Transformation Division. She had no knowledge of the Claimants before being appointed as appeal manager.

[280]On 25 November 2021, Mrs Walker sent a letter of appeal, saying that Mr Lambert did not allow aspects of her grievance to be taken forwards, Ms Morgan had not interviewed them first, Ms Morgan failed to challenged witnesses and ignored evidence.

[281]On 25 November 2021, Ms Turner sent a letter of appeal saying that Ms Morgan withheld evidence, did not undertake follow up interviews or search for information and carried out a rushed investigation.

[282]On 26 November 2021, revised on 29 November 2021, Mrs Pennington sent a letter of appeal, referring to the order in which Ms Morgan interviewed people, that she had not interviewed people requested, very little of the evidence she had provided was referred to by Ms Morgan, and Ms Evans had deleted information. She wanted a full investigation to be undertaken externally to the ONS.

[283]Dr Thorsteinsson requested copies of all documentation used in the original grievance decisions. In the pack of information she saw Mrs Pennington’s e-mail. On 17 December 2021 Dr Thorsteinsson asked the Claimants to clarify aspects of their appeals. Mrs Walker provided further information on 20 December 2021 and Ms Turner provided further information on 22 December 2021.

[284]We accepted Dr Thorsteinsson’s evidence that the purpose of the appeal was to check for procedural errors and whether there was evidence the decision manager had made a wrong decision.

[285]On 21 January 2022, the Claimants were invited to appeal meetings.

[286]Mrs Walker’s appeal was due to be heard on 16 February 2022. Mrs Walker had previously raised concerns about delay. There were IT issues in the office and it was not possible to hold the video meeting at the scheduled time. Dr Thorsteinsson offered to rearrange the meeting or hold it later that day. Mrs Walker responded by saying she expected the written decision in 5 days and the matter had been going on long enough. Mrs Walker did not attend the meeting and it went ahead in her absence.

[287]Mrs Walker was sent the outcome of her appeal on 23 February 2022 [p2043]. Dr Thorsteinsson sent detailed reasons for her decisions. In relation to removal of parts of the original grievance, Ms Morgan had investigated the 6 main points in her grievance and she concluded that there was a not a procedural error demonstrated. In relation to interviewing others first she concluded that Ms Morgan could have undertaken further interviews after speaking to Mrs Walker and it would have been more thorough, however overall it was reasonable for her not to and only a reasonable investigation was required and it was not procedurally incorrect. The screenshots provided by Mrs Walker did not sufficiently support that Ms Evans was lying and would not have changed the decision of the decision manager. In relation to deletion of evidence, it was accepted more could have been done to probe on this issue, but there was no evidence it would have changed the decision. Ms Hunt was unfit to work and not interviewed and she was not satisfied there was a procedural error. The appeal was dismissed. Dr Thorsteinsson was satisfied that Ms Morgan’s report was not biased.

[288]Mrs Pennington attended her appeal meeting on 17 February 2022 and was accompanied by Ms Benjamin and discussion took place about the grounds of appeal. Mrs Pennington was sent the outcome of her appeal on 24 February 2022. In relation to the order of interviewing witnesses, Dr Thorsteinsson provided similar reasons to those given to Mrs Walker and reached the same conclusion. In relation to not interviewing others she concluded it was for the investigator to decide who was relevant and there was not a procedural error. In relation to missing opportunities to question AB and Ms Evans further she considered that it would have been more thorough, but only a reasonable investigation was required and there was no procedural error. In relation to deletion of e-mails she provided similar reasoning to that given to Mrs Walker. She did accept there was a procedural error by reason of delay. She was not satisfied there was a procedural error due to issues of impartiality in respect of Ms Morgan. There was no reference to Mrs Pennington’s e-mail dated 20 November 2020 or the contents of it. The appeal was dismissed.

[289]Ms Turner did not attend her appeal meeting on 23 February 2022, Ms Benjamin attend on her behalf. Discussion took place about the grounds of appeal. Ms Turner was sent the outcome on 2 March 2022. She did not consider there was a procedural error when Ms Morgan did not include the yammer posts. In terms of the order of interviews and follow up questions the reasoning was similar to that given to Mrs Walker. In relation to searching for more evidence, only a reasonable investigation had to be carried out and she was satisfied there was not a procedural error. She did not conclude that the investigation was rushed. The appeal was dismissed.

[290]Mrs Walker accepted in cross-examination that she could not say whether the e-mails of 20 November 2020 had any influence on Dr Thorsteinsson. She said it was all part of a jigsaw and a big detriment. Ms Turner accepted in cross-examination that she had no idea whether Dr Thorsteinsson had been influenced by the e-mails. Mrs Pennington said she thought the e-mails would have been in Dr Thorsteinsson’s mind but did not explain how she had that belief. We accepted Dr Thorsteinsson’s evidence that Mrs Pennington’s e-mail dated 20 November 2020 was not a focus for her and it had no bearing on the decision and it was not relevant to the issues she had to decide. The Claimants asked Dr Thorsteinsson limited questions in cross-examination. Mr Adams’ grievances

[291]On 29 June 2021, Mr Booth, Security and Compliance Audit Lead within the Security and Information Management Division, was asked if he would act as decision manager for Mr Adams’ grievance. Mr D Jones, caseworker, notified Mr Adams of this on 30 June 2021.

[292]Mr Booth did not see the e-mails sent on 20 November 2020, between the time they were sent and when the grievance process had concluded. He had been broadly informed, during the grievance process, that complaints had been raised but was not told of their contents. They were not included in the documents provided by Mr Adams.

[293]On 30 June 2921 Mr Adams asked questions about Mr Booth and whether he would be open and transparent, which were answered on 1 July. Mr Adams then raised queries with Mr D Jones, caseworker, as to whether he would be neutral.

[294]On 5 July 2021, Mr Booth sought Mr Adams’ availability for a meeting, which was arranged for 19 July 2021. In the meantime Mr Booth considered the documents Mr Adams had provided.

[295]On 19 July 2021 Mr Adams attended a meeting with Mr Booth and the grievances were discussed. Mr Adams had provided a 39 page document. Mr Booth said that some grievances he may not be able to take forwards, for example Mr Gibbons had already retired. Mr Booth had been advised that some of the grievances had related to the disciplinary process, which had been determined in Mr Adams’ favour and that he should not reopen the process. Mr Booth agreed to take forward grievances relating to Mr Adams, this reduced the number of grievances taken forward. Further information was requested.

[296]Mr Adams provided Mr Booth with further information on 19 and 21 July 2021.

[297]On 20 July 2021, Mr Adams said he wanted to add a grievance about Mr D Jones and ER in general.

[298]Mr Booth looked at the documents provided and then was on leave between 23 July and 9 August 2021. On 10 August 2021, Mr Adams said he had further grievances to raise. Mr Booth replied and said they should be treated as a separate complaint and sent to HR and not the National Statistician. Further correspondence followed. On 12 August 2021, Mr Adams raised further grievances with the National Statistician.

[299]On 24 August 2021, Mr Adams was invited to attend a formal dispute resolution meeting on 2 September 2021 following the initial fact finding.

[300]In the summer of 2021 Mr Fitzek, Head of People Expert Services, became aware of grievances being sent to the National Statistician and Ms Benjamin was the union representative. He arranged a meeting with Mr Adams and Ms Benjamin and was expecting Mr Adams to talk about his experiences. Mr Adams said he was angry about the disciplinary process and that those involved were guilty of misconduct. Mr Adams said that the only way he could get justice was to take the ONS to court. There was a dispute between the parties as to whether Mr Fitzek replied by saying, as per the allegation made by Mr Adams, that the ONS would defend a claim no matter what or as Mr Adams said in evidence that the ONS would defend it irrespectively. Mrs Walker said she had a similar conversation with Mr Fitzek, however that was not put to him. Mr Fitzek sent an e-mail to Mr Adams after the meeting summarising what had been discussed and did not mention court proceedings. Mr Fitzek’s evidence was that he replied that Mr Adams had the right to seek a Tribunal and the ONS would decide how to respond. We preferred the evidence of Mr Fitzek. Mr Fitzek was copied into an e-mail on 20 November 2020 which forwarded Mrs Pennington’s e-mail. He understood there were general concerns about safety but had not made any connection that Mr Adams had been involved in it. We accepted that it formed no part of his thought process.

[301]Mr Adams attended a meeting with Mr Booth, which took place over 2 and 3 September 2021 and was accompanied by his union representative. They went through each allegation and discussed whether there was a case to answer. Mr Adams provided further detail in respect of some matters and Mr Booth agreed that further investigations would take place and if it required a more complex or detailed investigation he may appoint an investigator.

[302]On 7 September 2021, Mr Booth asked Ms Billinge if she would investigate Mr Adams’ grievance. Ms Billinge was sent the terms of reference later that day in respect of allegations against AB and Ms Fernandes, with the other 3 Claimants being identified as witnesses. Mr Booth continued to undertake fact finding in relation to the less complex matters.

[303]On 24 September 2021, Mr Adams attended a fact finding meeting with Ms Billinge, at which he queried why only parts of his grievance were being investigated. They discussed the allegations against AB and Ms Fernandes.

[304]Ms Billinge interviewed AB and Ms Fernandes on 27 September 2021. Following which she asked Mr Booth to expand the terms of reference to interview Ms Evans and Farrington. Ms Billinge interviewed the other Claimants on 28 September 2021. She interviewed Ms Evans on 5 October. On 7 October, she asked Mr Booth to expand the terms of reference to add further people to interview. On 8 October 2021 she interviewed Ms Farrington. On 14 October she interviewed Mr Raybould, Ms Vanes, Ms Farrell. On 19 October she interviewed Ms Hunt. Ms Chaney provided a written statement on 25 October. Ms Billinge interviewed 12 people which took her about 4 weeks in total.

[305]On 2 November 2021, Ms Billinge sent Mr Booth her report. The report was 31 pages long plus appendices. The report set out the chronology of her investigation and the details of the complaints made by Mr Adams, cross referencing the matters raised with the appendices. She did the same for the interviews with AB and Ms Fernandes. She then set out each allegation and the evidence given by the various witnesses, crossrefencing the information with the appendices. She then provided summaries of her findings and set out her conclusions. She considered there was no case to answer in respect of AB falsifying information. In relation to racist behaviour there was some evidence of racist language in a car journey but not evidence to suggest it was AB who used it. Evidence was not found to support that AB was only loud towards and spoke over women. There was evidence AB said the word ‘poofter’ in a car journey 3 years earlier, but had not been able to substantiate other homophobic comments. There was no evidence to support that Ms Fernandes sought to penalise Mr Adams for use of union facility time. She recommended there was no case to answer.

[306]We accepted that the report was thorough. Mr Adams suggested that its contents were just words on a page. We accepted Ms Billinge’s evidence that she was aware from Mrs Walker’s and Mrs Pennington’s disciplinary meetings that they had sent their e-mails on 20 November 2020. Mr Adams had also referred to e-mails being sent. We accepted that these references were in general terms and had not included what the e-mails said. She thought it was about going back to work and it was not relevant to her investigation.

[307]Mr Booth reviewed the report and the information contained within it. On 26 November 2021 Mr Booth informed Mr D Jones that he was ready to invite Mr Adams to a meeting. At this stage he was informed Mr Adams had suffered a heart attack. Mr Booth decided that they would invite Mr Adams to a meeting and if he was too unwell to attend they could put it on hold and or provide written submissions or his union representative to attend on his behalf.

[308]On 30 November 2021 Mr Booth e-mailed Mr Adams with the outcomes of the fact finding and investigation and said that a formal dispute resolution meeting needed to be arranged and he would propose dates. The fact finding document referred to each allegation, provided the considerations and made references to where information could be found in the appendices. Mr Adams was unable to open Ms Billinge’s report.

[309]Mr Booth had not received confirmation from Mr Adams that he would be able to attend a hearing. On 9 December 2021, Mr Booth proposed dates on 4 and 7 January 2022. Mr Booth chased Mr Adams on 14 December 2021. Ms Benjamin telephoned Mr Booth and discussed the situation. She later asked where the policy said that a resolution meeting could be held in an employee’s absence. Mr Booth replied that Mr Adams had noted the process had been prolonged and it could proceed in absence if reasonable streps had been taken to ensure the attendance of the employee and/or their representative or to make written submissions. On 16 December 2021, Mr Booth sent an invitation to attend a meeting on 7 January 2021. On 6 January 2021, Mr Adams informed Mr Booth that he was too ill to attend. He was asked if he wanted to make written representations or his representative attend. Mr Adams replied that the meeting should be rearranged. Mr Booth said he would reschedule it within 5 working days in line with the policy. On 7 January Ms Benjamin informed Mr Adams that she had been given consent to attend on his behalf. The meeting was rearranged to 13 January 2022.

[310]Ms Benjamin attended the resolution hearing on 13 January 2022, at which she made representations about the various complaints. Ms Billinge attended and presented her findings and she was questioned by Ms Benjamin.

[311]Mr Booth then gave further consideration to the matters and sent an outcome letter on 20 January 2022. The grievances were dismissed. Mr Booth provided an explanation for each decision. He made some recommendations for the future. Mr Booth accepted in cross-examination that there was some evidence supporting the allegations, however there was also other evidence and he did not think that there was sufficient evidence to be satisfied the allegations were made out.

[312]Mr Adams said in cross-examination that Mr Booth would have been influenced by whispers passing around ONS. There was no evidence to suggest that Mr Booth, who worked in a wholly different department, would have learned of the disclosures. We accepted that the first time Mr Booth was aware of the e-mails from November 2020 was when the Tribunal proceedings were brought. All he knew, at the time, was that there had been a disciplinary case which had been successfully appealed by Mr Adams. Mr Adams’ appeal against the grievance outcome

[313]On 25 January 2022, Mr Adams appealed the grievance outcome. Ms Dyer, G6 Programme Manager was appointed as appeal office on 14 January 2022. Ms Dyer had no knowledge of the e-mails sent in November 2020 at the time they were sent.

[314]The appeal document contained 20 points and he sought for his grievances to be investigated by an external body.

[315]On 26 January 2022, Ms Dyer asked Mr Booth for the relevant documents.

[316]On 27 January 2022, Ms Dyer e-mailed Mr Adams and said that his appeal seemed to be a series of statements and did not state the grounds of appeal. She asked him to identify what procedural errors, decisions not supported by evidence or new information there were.

[317]On 31 January 2022 she received the case file from Mr Booth. It did not include the Claimants’ e-mails of 20 November 2020.

[318]On 7 February 2022, Mr Adams provided updated reasons for his appeal [p2120-2122], and set out what he said were procedural matters, matters not supported by evidence and new information from the other

[319]Ms Dyer sent Mr Adams an invitation to attend a meeting. She did not receive a response and chased him on 22 February 2022. Ms Benjamin confirmed the same day that she would attend on her own due to Mr Adams’ health.

[320]The appeal meeting was held on 24 February 2022. Ms Benjamin made representations on Mr Adams’ behalf. Ms Benjamin said that the other Claimants’ SAR documents might substantiate what Mr Adams was saying. Later that day Ms Dyer received 474 pages of documents, however she was not given specific references to look at. Ms Dyer read the documents, she did not think they added anything. On 28 February Mr Adams sent Ms Dyer the grievance statements of the other Claimants. On 2 March 2022 Ms Dyer sent Mr Adams the meeting notes.

[321]On 3 March 2022, Ms Dyer sent Mr Adams the appeal outcome. All grounds of appeal were dismissed [p2081-2085]. Ms Dyer set out her reasons for dismissing the appeal.

[322]We accepted that Ms Dyer had no knowledge of the e-mails sent on 20 November 2020, during the entire process of the appeal. She first read them in the bundle for the Employment Tribunal. We accepted she did not hear about the e-mails from other people before reaching her decision on the appeal. Mr Raybould’s grievance

[323]On 4 February 2022, Mr Raybould raised a grievance against Mrs Walker and Ms Turner about the allegations they had made against him. Mr Lambert sought advice from Ms Donovan and noted that it came into an area already involving numerous accusations in either direction.

[324]Mr Lambert discussed the grievances with Mr Raybould on 16 February 2022. Mr Lambert told him that matters appeared to be out of time and spoke about the consequences if he wanted to pursue them. Mr Raybould was very upset about the allegations which had been made against him. Mr Raybould said he wanted to think about. He later said he would withdraw them.

[325]On 25 April 2022, Mr Raybould informed Mr Lambert that he wanted to proceed with his original grievances against Mrs Walker and Ms Turner. He said no action had been taken against either of them who had both had potentially committed gross misconduct by making false and malicious allegations against a colleague. He said Mr Lambert’s reference to the Claimants feeling vulnerable was unacceptable, given their actions, and it was he and everyone who should be feeling vulnerable. He added Mr Lambert was biased against him in favour of the Claimants [p2112]. We accepted that Mr Raybould was very upset about the allegations made against him and that he felt he had done nothing wrong.

[326]The Resolution Policy dated 24 June 2020 said, in relation to timing of complaints, “A concern must be raised without unreasonable delay. In most cases this should be within 3 months of the event or issue taking place, or within 3 months of the informal resolution concluding. Where a concern is raised outside of these timescales, manager should carefully consider the circumstances leading to the delay and not automatically reject a formal concern on the grounds of timing …” [p2438]

[327]Mr Lambert decided that a decision manager should be appointed. He was aware that normally grievances must be raised within 3 months but they could be accepted outside of that time in exceptional circumstances. HR advised him that it would be fair to allow the grievance to proceed, We accepted that he needed to have a basis not to appoint a decision manager and there was not one. We also accepted that he had been trying to persuade Mr Raybould not to pursue the grievance. We accepted that the complaints made against Mr Raybould had been made more than 3 months after the matters complained of. We accepted that the decision to allow the matter to proceed ensured parity and that Mr Lambert considered it was fair to let it proceed.

[328]Mr Lee was appointed as a decision manager. Ms Deneen, Senior Executive Officer in the Global Trade and Investment Division, was asked to act as investigation manager into allegations that Mrs Walker and Ms Turner had made malicious and vexatious allegations about Mr Raybould. Ms Deneen had not seen the e-mails from 20 November 2020 until the Tribunal hearing and was not aware of their contents. The only thing she was aware of was that Mr Raybould had said there was bad feeling about the end of special paid leave. We accepted that at the material times Ms Deneen had no knowledge of the e-mails or their contents and did not know of their existence until she saw the Tribunal bundle. She was sent Mr Raybould’s grievance and she was only aware from the grievance that an e-mail had been sent about the ending of PSL and it had caused some bad feeling in the team.

[329]Ms Deneen used the grievance policy produced in 2022, which said that a concern should be raised in writing without unreasonable delay, which in most cases should be within 3 months of the event or issue. It went on to say that ‘where a concern is raised outside of these timescales, managers should carefully consider the circumstances leading to the delay and not automatically reject a formal concern on the grounds of timing’. [p2357]. We accepted Ms Deneen’s evidence that she thought she should use the policy at the time of the investigation and not the date when the matter complained about occurred.

[330]Ms Deneen was aware that Mrs Walker and Ms Turner were off sick and sought advice from Ms Wilson, HR caseworker, as to how to contact them. Ms Wilson had referred to Mrs Walker and Ms Turner as witnesses in her correspondence and suggested Ms Deneen approached their line manager and say that they had been identified as witnesses in dispute resolution matter and she wanted to speak to them.

[331]Ms Deneen e-mailed Ms Skelding on 8 August 2022, saying that Mrs Walker and Ms Turner had been identified as witnesses and she was ware they were off sick and not checking their e-mails. She asked for the best way of contacting them. We accepted Ms Deneen’s evidence that she referred to Mrs Walker and Ms Turner as witnesses because that was how Ms Wilson had referred to them before.

[332]Ms Skelding spoke to Mrs Walker and Ms Turner and said that they had been identified as witnesses in an informal resolution matter which Ms Deneen was investigating.

[333]Mrs Walker said that she had not been at work for 19 months and could not have witnessed anything and that the grievance policy said a grievance must be made within 3 months of occurring. She suggested Ms Deneen contacted her by post. Mrs Walker accepted in cross-examination that the Respondent was duty bound to investigate grievances and the content and who was involved needed to be kept confidential. When it was suggested in cross-examination that being called a witness was not detriment, Mrs Walker said it was because Ms Deneen was not going to tell Ms Skelding the ins and outs and added that at that stage it was probably not a detriment.

[334]We accepted that Ms Skelding told Ms Turner that she did not know what the investigation was about. Ms Turner said she did not know how she could help because she had not seen her colleagues since the previous year. She said she could be contacted by post.

[335]Ms Deneen was told that both Claimants wanted to receive correspondence by post. Ms Deneen was then taken ill for a short period in August. On 26 August 2022, she drafted letters to be sent to both Claimants and asked Ms Wilson to review them. On 6 September 2022, she e-mailed the letters to the post room to be sent to both Claimants. Within the letters she said that she wanted to invite Mrs Walker and Ms Turner to attend meetings on 21 and 16 September 2022 respectively, to discuss a complaint made against them by Mr Raybould. Ms Deneen sent the Claimants MS Teams invites to attend the meetings.

[336]On 9 September 2022, Mrs Walker e-mailed Ms Deneen and said that she would not attend the meeting blind. Ms Deneen discovered that the letters had not been sent to the Claimants, due to postal strikes and the national period of mourning for the Queen’s death. This was explained. Mrs Walker agreed to receive the letter by e-mail. Mrs Walker suggested that this was an attempt to invite her to a meeting without informing her it was an investigation. Mrs Walker’s evidence was that sending her a meeting link without an explanation as to what it was about was a devious way to get her to attend an investigation. We rejected those suggestions and accepted that Ms Deneen thought that the letters to Mrs Walker and Ms Turner had been sent by post.

[337]Ms Deneen e-mailed Mrs Walker on 30 September 2022. She also sent an e-mail to Ms Turner’s work e-mail address, which it turned out Ms Turner could no longer access. Hard copies of the letters dated 29 September 2022 were also sent [p2311 to 2313 and 2314 to 2316] inviting Mrs Walker to a meeting on 12 October and Mrs Turner to a meeting on 26 October 2022.

[338]Mrs Walker left the employment of the Respondent on 14 September 2022 on grounds of ill health.

[339]The letters were received on about 7 October 2022. On 8 October 2022, Mrs Walker e-mailed Ms Deneen and said she had left the Respondent and it was harassment. On 10 October 2022, Ms Turner sent a letter via her union representative saying she would not attend the meeting.

[340]On 20 October 2022, Ms Deneen sent further letters to Mrs Walker and Ms Turner explaining in more detail the nature of the complaint.

[341]On 22 October 2022, Mrs Walker e-mailed Ms Deneen questioning why she had not followed the correct procedure. Ms Deneen replied and cited the paragraph from the 2022 resolution policy above.

[342]On 23 October 2022 Mrs Turner sent Ms Deneen a letter in which she cited the resolution policy, which she said was in force at the time, in terms of when a complaint should be made and said the policy she had referred to in the e-mail to Mrs Walker post-dated the allegation. We were unable to find a copy of the policy referred to by Ms Turner with a paragraph 8d in it, however we noted that the policy from 2020 was worded in very similar terms to that in 2022.

[343]There was some further correspondence with Mrs Walker culminating in Mrs Walker saying she would not attend a meeting. Mrs Turner did not correspond further with Ms Deneen.

[344]Ms Turner accepted in cross-examination that when there is a grievance it should be investigated. When questioned about Mr Raybould’s complaints arising out of her and Mrs Walker’s complaints about Mr Raybould and that his complaint should not be looked at any less thoroughly, Mrs Turner said that if he was making a complaint she was not a witness. She, however, accepted that the Respondent was investigating in accordance with its obligations to Mr Raybould. She said she was shocked to find out that she was not a witness but the person complained about.

[345]Mrs Walker suggested that the invitation to a meeting was a part of a vendetta against her. Ms Turner’s resignation

[346]On 2 November 2022, Mrs Turner resigned, with termination of employment taking effect on 2 December 2022. In the letter she said that she intended to stay until she reached state retirement age in December 2023, but the recent events caused her to change her plans. She referred to being off sick since February 2021 and the recent events showed her she was never going to feel safe working for the ONS [p2368].

[347]Ms Turner’s evidence was that the letter about the investigation was the final straw, because it brought back her symptoms of stress, it pushed her over the edge and that the policy in effect at the time required grievances to be made within 3 months.

[348]On 14 April 2022, Ms Turner sent an e-mail to the other Claimants about a Keeping In Touch discussion proposed by Ms Skelding. She said, “My plan is to answer this e-mail next week (too busy this weekend) then next time Kerry wants a KIT I’ll stall her by saying I am considering my options. I’ve now got a sick note up to 20th May; after that I’ll put in my notice. We’ll have had their response to ACAS by then and I don’t see any point hanging on…” It was put to Ms Turner that she had no intention of returning to work at that point. Mrs Turner said that the day she wrote it she was feeling very low and a few days later she felt better and renewed her sick note. We accepted that evidence.

[349]Mrs Turner said that when she was asked how she could be helped to return to work by Ms Skelding, she had replied that she needed a change in disciplinary policy so that written proof was provided that informal resolution had occurred. Time issues

[350]The Claimants did not address the time limit issues in their witness statements.

[351]Mrs Walker accepted that she knew about Employment Tribunals and that she could bring a claim at all material times. In the decision meeting on 28 April 2021, she said that she felt that Ms Matthews report would be thrown out of court immediately. Mrs Walker denied that she had in mind an employment Tribunal at this time.

[352]It was put to Mrs Walker that at about the time when she received the disciplinary appeal outcome date 23 June 2021 she would have looked into her employment rights. Mrs Walker could not remember when she started doing this, but she accepted she possibly had a conversation with others at this time.

[353]Mrs Walker accepted that she was a member of a Trade Union during the whole period and could have sought advice and that she knew about legal assistance. She had discussed the possibility of bringing a claim with Ms Benjamin. On 1 July 2021 Mrs Walker asked the head of HR for details of the legal teams for ONS and copied in Ms Benjamin. She later that day referred to needing to take the matter to an outside body. Mrs Walker said that this related to the SAR she had submitted.

[354]On 3 September 2021, in Mrs Walker’s interview for her grievance, she referred to AB and Ms Evans lying and she would have to take it further if it was not dealt with at that time. Mrs Walker did not accept that was a reference to the Tribunal, we rejected her evidence on this point. Mrs Walker was always aware that she could bring a claim in the Tribunal and we concluded it was something that was in her mind or at the very least the back of her mind at that time.

[355]It was put to Mrs Walker there was no good reason why she did not bring a claim in May 2021. She responded by saying that she understood that they needed to make a claim at the end of the last event and that the last one was in February 2022 and the claim was submitted and then further events happened.

[356]Mrs Walker accepted that she had ticked the wrong box on the claim form, about the ACAS certificate, and said that failing to get a certificate was a genuine error.

[357]Mrs Turner, in an e-mail on 10 September 2021 [p1502], made criticisms about the notes of her grievance interview and suggested the Respondent employed professional note takers capable of doing the job up to the standard of legal proceedings. In cross-examination she suggested ‘legal’ might have been the wrong word, we rejected that suggestion, Ms Turner had been critical of words used, spelling and grammar and it was unlikely she had chosen the wrong word.

[358]On 15 October 2021, Ms Turner e-mailed Ms S Jones suggesting that a decision would be based on incomplete information on the basis witnesses had not been contacted. She said in evidence that she did not think the investigation would be thorough, however she was unable to say why she did not bring a claim at that time, although she accepted she knew the Tribunal existed. She said that she did not think she had done research into the Tribunal because she was still going through the processes. She could not remember when she discussed Tribunal proceedings with the Union. She said she was stressed and off sick and was focusing on the internal stage. She accepted that she was writing lengthy documents to the Respondent, but said she would have found it distracting to submit a claim and that the grievance might have been resolved in her favour and she would not need to claim. We did not accept that the Claimant was unable to bring her claim at the material times, we were not provided with any medical evidence and her evidence was clear that she thought the grievance might resolve matters.

[359]Ms Turner accepted that the Claimants had been supporting each other since they had meetings with Mr Manning during the disciplinary process.

[360]Mr Adams had brought a claim in the Tribunal against a previous employer in 2011 and had assisted his son in an Employment Tribunal claim in 2019 and represented him at his hearing. He accepted that he knew an ACAS certificate needed to be obtained before bringing a claim at all material times. On 5 March 2021 Mr Adams wrote to Mr Manning and referred to having taken a case through court [p604]. When it was put to him that he knew a potential remedy was to bring a claim in this Tribunal, Mr Adams said ‘of course I did’. He accepted that he was well aware of his rights to bring a claim.

[361]It was put to Mr Adams that he was well enough to write extensive letters and he was well enough to present a claim. Mr Adams did not accept he was well enough. When asked why time was not referred to in his statement, he replied saying he did not need to because the claim was presented in time.

[362]In Mr Adams’ investigation meeting on 24 March 2021, Mr Adams referred to a measure a judge would need to consider in a court of law. Mr Adams denied that he was thinking about bringing a claim and he was just proving a point. He said he was aware he needed to exhaust all internal processes before bringing a claim.

[363]When it was suggested that he could undertake research on the internet about time limits he accepted that he could and said that he did not and that he was going to raise a grievance and take it to the end and he discussed it with his union and they agreed with him. Mr Adams knew he could take advice from his Union and the TUC.

[364]On 8 June 2021, in an e-mail to Ms Studley, Mr Adams made reference to the Tribunal finding delays unacceptable. In the appeal decision meeting on 17 June 2021, Mr Adams referred to “I can’t wait for this to go outside and go where it needs to go.” Mr Adams said that this meant the press, we rejected that evidence and concluded he meant the Employment Tribunal. On 30 June 2021, Mr Adams said in an e-mail to the head of employment relations, “The time frame referred to by ACAS is for the case to be heard and resolved and not the irrelevant correspondence in between as you will be made aware of in a tribunal or civil court.” On 5 July 2021 Mr Adams sent an e-mail to the head of employment relations and said, “the Law says different, as you and ONS will discover when we take these matters up through the courts.”

[365]Mrs Pennington accepted, when giving evidence, that it was her responsibility to ensure her claim was presented in time and that there was no reason from a medical perspective stopping her from presenting it. She knew she could get advice from the Trade Union and in particular from Ms Benjamin. She had also been taking advice from the CAB from November 2020. Mrs Pennington said that the reason why the claim was presented when it was, was because as they understood it they had to exhaust every avenue possible.

The law

[366]Under section 43A of the Act a protected disclosure is a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. Section 43B(1) provides that 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,

(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.

[367]Under Section 43C(1) a qualifying disclosure becomes a protected disclosure if it 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.

[368]Under Section 47B 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. This provision does not apply to employees where the alleged detriment amounts to dismissal.

[369]Section 48(1) and (1A) of the Act state that an employee may present a claim that he has been subjected to detriment contrary to s. 44 and 47B of the Act. Under section 48(2) of the Act, on a complaint to an employment tribunal, it is for the employer to show the ground on which any act, or deliberate failure to act, was done. 370. s. 48(3) provides: 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 reasonable have been expected to do the failed act if it was to be done.

[371]Under section 103A of the Act, an employee is to be regarded 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. Protected disclosures

[372]The tests were re-stated by the Employment Appeal Tribunal in Martin v London Borough of Southwark

UKEAT/0239/20/JOJ

reaffirming that the definition for a qualifying protected disclosure breaks down into a number of elements:(1) there must be disclosure of information,

(2) the worker must believe that the disclosure is made in the public interest,

(3) if the worker does hold such a belief, it must be reasonably held,

(4) the worker must believe that the disclosure tends to show one or more matters in sub-paragraphs a to f, and

(5) if the worker holds such a belief, it must be reasonably held.

[373]The Court of Appeal in Jesudason v Alder Hey Children’s NHS Foundation Trust

[2020] EWCA Civ 73

, also restated the tests.

[374]First, we had to determine whether there had been disclosures of ‘information’ or facts, which was not necessarily the same thing as a simple or bare allegation (see the cases of Geduld-v-Cavendish-Munro

[2010] ICR 325

in light of the caution urged by the Court of Appeal in Kilraine-vWandsworth BC

[2018] EWCA Civ 1346

). An allegation could contain ‘information’. They were not mutually exclusive terms, but words that were too general and devoid of factual content capable of tending to show one of the factors listed in section 43B (1) would not generally be found to have amounted to ‘information’ under the section. The question was whether the words used had sufficient factual content and specificity to have tended to one or more of the matters contained within s. 43B (1)(a)-(f). Words that would otherwise have fallen short, could have been boosted by context or surrounding communications. For example, the words “you have failed to comply with health and safety requirements” might ordinarily fall short on their own, but may constitute information if accompanied by a gesture of pointing at a specific hazard. The issue was a matter for objective analysis, subject to an evaluative judgment by the tribunal in light of all the circumstances. A bare statement such as a wholly unparticularised assertion that the employer has infringed health and safety law will plainly not suffice; by contrast, one which also explains the basis for this assertion is likely to do so. (Jesudason v Alder Hey Children’s NHS Foundation Trust

[2020] EWCA Civ 73

)

[375]Next, we had to consider whether the disclosure indicated which obligation was in the Claimant’s mind when the disclosure was made such that the Respondent was given a broad indication of what was in issue (Western Union-v-Anastasiou

UKEAT/0135/13/LA

). In Twist DX v Armes

UKEAT/0030/20/JOJ

, the EAT concluded that it is not necessary that a disclosure of information specifies the precise legal basis of the wrongdoing asserted.

[376]We also had to consider whether the Claimant had a reasonable belief that the information disclosed had tended to show that the matters within s. 43B (1) had been or were likely to have been covered at the time that any disclosure was made. To that extent, we had to assess the objective reasonableness of the Claimants’ belief at the time that they held it (Babula-v-Waltham Forest College

[2007] IRLR 3412

and Korashi-vAbertawe University Local Health Board

[2012] IRLR 4

). ‘Likely’, in the context of its use in the sub-section, implied a higher threshold than the existence of a mere possibility or risk. The test was not met simply because a risk could have materialised (as in Kraus-v-Penna

[2004] IRLR 260

EAT). Further, the belief in that context had to have been a belief about the information, not a doubt or an uncertainty. The worker does not have to show that the information did in fact disclose wrongdoing of the kind enumerated in the section; it is enough that he reasonably believes that the information tends to show this to be the case. As Underhill LJ pointed out in Chesterton Global Ltd v Nurmohamed

[2017] EWCA Civ 979

;

[2017] IRLR 837

, para.8, if the worker honestly believes that the information tends to show relevant wrongdoing, and objectively viewed it has sufficient factual detail to be capable of doing so, it is very likely that the belief will be considered reasonable. (Jesudason v Alder Hey Children’s NHS Foundation Trust

[2020] EWCA Civ 73

)

[377]Next, we had to consider whether the disclosures had been ‘in the public interest.’ In other words, whether the Claimant had held a reasonable belief that the disclosures had been made for that purpose. As to the assessment of that belief, we had to consider the objective reasonableness of the Claimant’s belief at the time that they possessed it (see Babula and Korashi above). That test required us to consider their personal circumstances and ask ourselves the question; was it reasonable for them to have believed that the disclosures were made in the public interest when they were made.

[378]The ‘public interest’ was not defined as a concept within the Act, but the case of Chesterton-v-Nurmohamed

[2017] IRLR 837

was of assistance. The Court of Appeal determined that it was the character of the information disclosed which was key, not the number of people apparently affected by the information disclosed. There was no absolute rule. Further, there was no need for the ‘public interest’ to have been the sole or predominant motive for the disclosure. As to the need to tie the concept to the reasonable belief of the worker; “The question for consideration under section 43B (1) of the 1996 Act is not whether the disclosure per se is in the public interest but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest” (per Supperstone J in the EAT, paragraph 28).

[379]The Court of Appeal

[2017] IRLR 837

dismissed the appeal. At paragraph 31 Underhill LJ said that he did not think “there is much value in adding a general gloss to the phrase ‘in the public interest. … The relevant context here is the legislative history explained at paragraphs 10-13 above. That clearly establishes that the essential distinction is between disclosures which serve the private or personal interests of the worker making the disclosure and those that serve a wider interest.”

[380]Further at paragraph 36 to 37 “36. …The larger the number of persons whose interests are engaged by a breach of the contract of employment, the more likely it is that there will be other features of the situation which will engage the public interest. 37. Against that background, in my view the correct approach is as follows. In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under s.43B(1) where the interest in question is personal in character 5), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker. Mr Reade's example of doctors' hours is particularly obvious, but there may be many other kinds of case where it may reasonably be thought that such a disclosure was in the public interest. The question is one to be answered by the tribunal on a consideration of all the circumstances of the particular case, but Mr Laddie's fourfold classification of relevant factors which I have reproduced at paragraph 34 above may be a useful tool. As he says, the number of employees whose interests the matter disclosed affects may be relevant, but that is subject to the strong note of caution which I have sounded in the previous paragraph.”

[381]The factors referred to are:a. the numbers in the group whose interests the disclosure served

b. the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed

c. the nature of the wrongdoing disclosed, and

d. the identity of the alleged wrongdoer.

[382]Finally, we did not have to determine whether the disclosures had been made to the right class of recipient since the Respondent accepted that if they had been made, they were made to the Claimant’s ‘employer’ within the meaning of section 43C (1)(a). Detriment (s. 47B)

[383]The next question to determine was whether or not the Claimant suffered detriment as a result of the disclosure. The test in s. 47B is whether the act was done “on the ground that” the disclosure had been made. In other words, that the disclosure had been the cause or influence of the treatment complained of (see paragraphs 15 and 16 of the decision in Harrow London Borough Council-v-Knight

[2002] UKEAT 80/0790

/01).

[384]A detriment is something that is to the Claimant’s disadvantage. In Ministry of Defence v Jeremiah

1980 ICR 13

, CA, Lord Justice Brandon said that ‘detriment’ meant simply ‘putting under a disadvantage’, while Lord Justice Brightman stated that a detriment ‘exists if a reasonable worker would or might take the view that [the action of the employer] was in all the circumstances to his detriment’. Brightman LJ’s words, and the caveat that detriment should be assessed from the viewpoint of the worker, were adopted by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL, in which Lord Hope of Craighead, after referring to the observation and describing the test as being one of “materiality”, also said that an “unjustified sense of grievance cannot amount to 'detriment'”. In the same case, at para 105, Lord Scott of Foscote, after quoting Brightman LJ's observation, added: “If the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice”

[385]Some workers may not consider that particular treatment amounts to a detriment; they may be unconcerned about it and not consider themselves to be prejudiced or disadvantaged in any way. But if a reasonable worker might do so, and the claimant genuinely does so, that is enough to amount to a detriment. The test is not, therefore, wholly subjective. (Jesudason v Alder Hey Children’s NHS Foundation Trust

[2020] EWCA Civ 73

)

[386]The test in s. 47B is whether the act was done “on the ground that” the disclosure had been made. In other words, that the disclosure had been the cause or influence of the treatment complained of (see paragraphs 15 and 16 in Harrow London Borough Council-v-Knight

[2002] UKEAT 80/0790

/01). It will be infringed if the protected disclosure materially influenced (in the sense of being more than a trivial influence) the employer’s treatment of the whistle blower (NHS Manchester-v-Fecitt

[2012] IRLR 64

and International Petroleum Ltd v Osipov UKEAT 0229/16).

[387]The test was not one amenable to the application of the approach in Wong-v-Igen Ltd, according to the Court of Appeal in NHS Manchester-vFecitt

[2012] IRLR 64

). It was important to remember, however, if there was a failure on the part of the Respondent to show the ground on which the act was done, the Claimant did not automatically win. The failure then created an inference that the act occurred on the prohibited ground (International Petroleum Ltd v Osipov EAT 0058/17).

[388]As observed in (Jesudason v Alder Hey Children’s NHS Foundation Trust

[2020] EWCA Civ 73

) “30. As Lord Nicholls pointed out in Chief Constable of West Yorkshire v Khan

[2001] UKHL 48

;

[2001] ICR 1065

para.28, in the similar context of discrimination on racial grounds, this is not strictly a causation test within the usual meaning of that term; it can more aptly be described as a “reason why” test: “Contrary to views sometimes stated, the third ingredient ('by reason that') does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the 'operative' cause, or the 'effective' cause. Sometimes it may apply a 'but for' approach. For the reasons I sought to explain in Nagarajan v London Regional Transport

[2001] 1 AC 502

, 510-512, a causation exercise of this type is not required either by section 1(1)(a) or section 2. The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.”

31. 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.”

[389]This was re-affirmed in Warburton v The Chief Constable of Northamptonshire Police

[2022] EAT 42

when it was held that the question is whether the protected act had a significant cause on the outcome.

[390]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 (see London Borough of Harrow v Knight

[2003] IRLR 10

EAT at [16]: “It is thus necessary in a claim under s.47B to show that the fact that the protected disclosure had been made caused or influenced the employer to act (or not act) in the way complained of: merely to show that ‘but for’ the disclosure the act or omission would not have occurred is not enough (see Khan).”

[391]For something to be an ‘intervening act’ which breaks the chain of causation, it must become the sole effective cause of the loss, damage or injury suffered such that the prior wrongdoing, whilst it might still be a ‘but for’ cause, has been eclipsed so that it is not an effective or contributory cause anymore (McNicholas v Care and Learning Alliance

[2023] EAT 127

[392]“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. …” (see Panayiotou v Chief Constable of Hampshire Police

[2014] IRLR 500

per Mr Justice Lewis at paragraph 49). However, the following principles apply:a. The tribunal “should be slow to recognise a distinction between the complaint and the way in which it is made, save in clear cases” (Martin v Devonshires, per Underhill P at 1122); and “a tribunal should look with care at arguments that say that the dismissal was because of acts related to the disclosure rather than because of the disclosure itself” per Lewis J at 1150, in the context of protected disclosure detriments, citing Bolton School v Evans

[2007] ICR 641

, per Buxton LJ at 18).

b. Intemperate language or inaccurate statements in a complaint are not sufficient to distinguish between a complaint and the manner of its making and “An employer who purports to object to ‘ordinary’ unreasonable behaviour of that kind should be treated as objecting to the complaint itself” (Martin v Devonshires, per Underhill P at para 22).

c. “The employment tribunal will ... 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” (Panayiotou, per Lewis J at para 52).

d. Where “a material part of the reason” for detrimental conduct is the employer’s “objection to the substance of the disclosures themselves” then a claim is “in principle meritorious”, subject to issues of limitation, etc (Kong v Gulf International Bank (UK) Limited EA-2020-00035740J (unrep. 10.09.21), per Auerbach J at 1187, in the context of protected disclosure detriment claims; see also Panayiotou, per Lewis J at 49 in the same context).

[393]In Kong v Gulf Bank International

[2022] EWCA Civ 941

(when the case progressed to the Court of Appeal), the term used for the issue identified in Devonshire Solicitors and Shinwari v Vue Entertainment

UKEAT/0394/13

was the “separability” of the claimant’s conduct and protected disclosures. The Court held that separability is not a specific legal concept or defence, but rather “it is simply a label which identifies what as a matter of fact was the real reason for impugned treatment” – para [57] per Simler LJ. The Court added: “Were this exercise not permissible, the effect would be that whistleblowers would have immunity for behaviour or conduct related to the making of a protected disclosure no matter how bad, and employers would be obliged to ensure that they are not adversely treated, again no matter how bad the associated behaviour or conduct.” Dismissal (s. 103A)

[394]We considered the test in Kuzel-v-Roche

[2008] IRLR 530

;(a) whether the Claimant and had showed that there was a real issue as to whether the reason put forward by the Respondent was not the true reason for dismissal;

(b) if so, had the employer showed its reason for dismissal;

(c) if not, it is open to the tribunal to find that the reason was as asserted by the employee, but that reason does not have to be accepted. It may be open to the Tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for dismissal was not one advanced by either side. Knowledge of protected disclosure and the reason for the treatment

[395]The principle reason for the dismissal is “a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee” (see Abernethy v Mott, Hay and Anderson

[1974] ICR 323

[396]Where the claim is that the worker was constructively unfair dismissed, the Tribunal must first determine whether the claimant was constructively dismissed, applying the established principles, and if so, identify what conduct breached the implied term of trust and confidence. Having established the breach(es) the tribunal should then determine whether the reason or principal reason which was operating on the respondent’s mind, whether consciously or unconsciously, was the protected disclosure(s) (see Salisbury NHS Foundation Trust v Wyeth

UKEAT/0061/15/JOJ

at paragraphs 44 to 45). In those circumstances, the burden rests upon the respondent in accordance with Kuzel v Roche to establish the reason.

[397]The principle of separability applies equally to claims under section 103A as it does to those under section 47B (see Page v Lord Chancellor

[2021] EWCA Civ 54

at paragraph 52).

[398]The focus must be on the knowledge, or state of mind, of the person who actually took the decision to dismiss, as observed by the Supreme Court in Royal Mail Group Ltd v Jhuti

[2019] UKSC 55

, at paragraph 60: “In searching for the reason for a dismissal for the purposes of section 103A of the Act, and indeed of other sections in Part X, courts need generally look no further than at the reasons given by the appointed decision-maker. Unlike Ms Jhuti, most employees will contribute to the decision-maker’s inquiry. The employer will advance a reason for the potential dismissal. The employee may well dispute it and may also suggest another reason for the employer’s stance. The decision-maker will generally address all rival versions of what has prompted the employer to seek to dismiss the employee and, if reaching a decision to do so, will identify the reason for it. In the present case, however, the reason for the dismissal given in good faith by Ms Vickers turns out to have been bogus. If a person in the hierarchy of responsibility above the employee (here Mr Widmer as Ms Jhuti’s line manager) determines that, for reason A (here the making of protected disclosures), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination. If limited to a person placed by the employer in the hierarchy of responsibility above the employee, there is no conceptual difficulty about attributing to the employer that person’s state of mind rather than that of the deceived decision-maker”. It held at paragraph 62 “The answer to the question of law identified in para 1 above is therefore as follows: Yes, 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.” [Kong v Gulf International Bank (UK) Ltd

[2022] EWCA Civ 941

[399]In William v Lewisham and Greenwich NHS Trust

[2024] EAT 58

, the EAT considered its decision in Malik v Centros Securities

EAT/0100/17

in the light of the Supreme Court’s decision in Jhuti. In Malik the Claimant had argued that even if the person responsible for detrimental treatment in a claim under s. 47B did not know of the disclosures and therefore could not be materially influenced by them, their treatment of him was influenced by someone else who did have that knowledge and who was influenced by the disclosures, and therefore the disclosures materially influenced the decision. The EAT, in Malik, held that under s. 47B “importing knowledge and motivation of another to that decision maker … is not permissible in considering why the decision maker acted as he or she did.”. The EAT held that Malik should be followed and the decision in Jhuti did not purport to change and did not logically change the interpretation of s. 47B.

[400]It does not matter whether or not the employer believed that a disclosure was protected (Beatt v Croydon Health Services NHS Trust

[2017] IRLR 748

[401]In Nichol v World Travel and Tourism Council and Others [2024 EAT 42, the EAT considered the extent to which a decision maker must have knowledge of a protected disclosure if they were not the immediate recipient of it. It was held, “For employers to be fixed with liability, therefore, they ought to know at least something about the substance of what has been made: that is they ought to have some knowledge of what the employee is complaining or expressing concerns about.”

[402]In First Greater Western Limited v Moussa [2024[ EAT 82, the EAT held that whether a detriment was inflicted on the ground of a protected disclosure is ultimately and always a factual determination for the Tribunal to make [para 106]. In that case the ET had concluded that although the two natural respondents, Mr Haynes and Mr White had not subjected the Claimant to a detriment for making a protected disclosure. Mr Haynes had not taken part in inflicting the detriments and Mr White, although taking part in inflicting them, did not have direct knowledge of the disclosures. However the disclosures in 2012 and 2013 caused the 2018 detriments through the medium of ill will that management institutionally bore the Claimant and that management in a collective sense, qua body corporate and employer, inflicted the detriments because of the protected disclosures even though the managers did not. The collective memory was personified and perpetuated by one HR individual who demonised the Claimant and encouraged Mr White to treat him unfairly and there was no other explanation for the extraordinary way he was treated. It was considered labels for cases was not helpful because every case is different. To the extent that a label was needed it was a combination of an organisational culture case, the culture of hostility to the Claimant because of the protected disclosures and some tainted information. Western Union Payment Services UK Ltd v Anastasiou

UKEAT/0135/13

was referred to in which it was recognised that “hypothetically there may be cases where there is an organisational culture or chain of command such that a final actor might not have personal knowledge of the protected disclosure but where it nevertheless materially influenced her treatment of the complainant. In such cases, however, it would still be necessary for the ET to explain how it had arrived at the conclusion that this is what happened. After reviewing the authorities, including Malik and William. The EAT did not consider they barred the Tribunal’s analysis in Moussa. After the amendments to s. 47B in 2013 it remained possible for an employer to be liable without vicarious liability. It was said at paragraph 159, “As Choudhary P observed in Malik it is difficult to see how a person can be influenced by something he or she does not know about; it would have to be by attribution …” In Moussa the Tribunal’s causation analysis was different, the malign influence on the innocent influenced person was not exerted on by one person but by the company itself by a management culture which permeated the approach of HR in particular one person and in turn those advised by HR. It was doubted whether in Malik, Choudhary P had in mind a collective memory case, which was far removed from the facts of that case. The decision did not address the decision maker’s lack of knowledge separately in relation to whistleblowing detriment.

[403]In Malik, Choudhary P considered that what was said in Anastasiou was obiter and based on a hypothetical. Choudhary P did not consider that importing the knowledge of another was permissible. Choudhary P held that the Court of Appeal’s decision in Jhuti did not assist the Claimant because liability for dismissal can only lie with the employer and not also the decision maker and that the decision in CLFIS (UK) Ltd v Reynolds, in the context of age discrimination had held it was unjust for the decision maker to be held liable in circumstances where they were personally innocent of discriminatory motivation. Time limits for detriment claims

[404]A claim for detriment must be presented before the end of the period of three months beginning with the date of the detriment or if there is a series of acts the last one. It is necessary to consider the point at which in time the detriment is said to have occurred. It is a mistake on law to focus on the detriment and whether it continued, the focus must be on the act or failure to act (Flynn v Warrior Square Recoveries Ltd

[2014] EWCA Civ 68

[405]Where it is said that there is a series of similar acts or failures, it was held in Arthur v London Eastern Railway Ltd (T/A One Stanstead Express)

[2007] ICR 193

, that it could cover the situation where the complainant alleges a number of acts by different people where, on the facts, there is a connection between the acts and failures to act in that they form part of a series and are similar to one another. There may be some link between them which makes it just and reasonable for them to be treated as in time. such a link might be established by considering whether the acts were done by fellow employees, if not what connection was between the perpetrators or whether the acts were organised in any way.

[406]Where the last of a series of acts is dismissed as unfounded on the facts or because it was not done on the ground of a protected disclosure, it cannot extend time for earlier, proven, acts that are out of time (Royal Mail Group Ltd v Jhuti EAT 0020/16). Not each allegation must be proven, as long as there is at least one in time proven act.

[407]Put simplistically, with effect from 6 May 2014 a prospective claimant must obtain an early conciliation certificate from ACAS, or have a valid exemption, before issuing employment tribunal proceedings.

[408]Section 207B of the Employment Rights Act 1996 makes provision for time limits to be paused whilst early conciliation is undertaken. provides:(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a "relevant provision”). But it does not apply to a dispute that is (or so much of a dispute as is) a relevant dispute for the purposes of section 207A.

(2) In this section - (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.

(3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.

(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.

(5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.

[409]Where the EC process applies, the limitation date should always be extended first by S.207B(3) or its equivalent, and then extended further under S.207B(4) or its equivalent where the date as extended by S.207B(3) or its equivalent is within one month of the date when the claimant receives (or is deemed to receive) the EC certificate to present the claim (Luton Borough Council v Haque

[2018] ICR 1388

, EAT). In other words it is necessary to first work out the primary limitation period and then add the EC period. Then ask is that date before or after 1 month after day B (issue of certificate). If it is before the limitation date is one month after day B, if it is afterwards it is that date.

[410]The question of whether or not it was reasonably practicable for the claimant to have presented the claim in time is to be considered having regard to the following authorities. In Wall’s Meat Co v Khan

[1978] IRLR 499

, Lord Denning, (quoting himself in Dedman v British Building and Engineering Appliances

[1974] 1 All ER 520

) stated "it is simply to ask this question: has the man just cause or excuse for not presenting his complaint within the prescribed time?" The burden of proof is on the claimant, see Porter v Bandridge Ltd

[1978] IRLR 271

CA. In addition, the Tribunal must have regard to the entire period of the time limit (Wolverhampton University v Elbeltagi [2007] All E R (D) 303 EAT).

[411]In Palmer and Saunders v Southend-on-Sea BC

[1984] IRLR 119

, the headnote suggests: "As the authorities also make clear, the answer to that question is pre-eminently an issue of fact for the Industrial Tribunal taking all the circumstances of the given case into account, and it is seldom that an appeal from its decision will lie. Dependent upon the circumstances of the particular case, in determining whether or not it was reasonably practicable to present the complaint in time, an Industrial Tribunal may wish to consider the substantial cause of the employee’s failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. It may be relevant for the Tribunal to investigate whether, at the time of dismissal, and if not when thereafter, the employee knew that he had the right to complain of unfair dismissal; in some cases the Tribunal may have to consider whether there was any misrepresentation about any relevant matter by the employer to the employee. It will frequently be necessary for the Tribunal to know whether the employee was being advised at any material time and, if so, by whom; the extent of the advisor’s knowledge of the facts of the employee's case; and of the nature of any advice which they may have given him. It will probably be relevant in most cases for the Industrial Tribunal to ask itself whether there was any substantial failure on the part of the employee or his adviser which led to the failure to comply with the time limit. The Industrial Tribunal may also wish to consider the manner in which and the reason for which the employee was dismissed, including the extent to which, if at all, the employer’s conciliatory appeals machinery had been used. Contrary to the argument advanced on behalf of the appellants in the present case and the obiter dictum of Kilner Brown J in Crown Agents for Overseas Governments and Administrations v Lawal

[1978] IRLR542

, however, the mere fact that an employee was pursuing an appeal through the internal machinery does not mean that it was not reasonably practicable for the unfair dismissal application to be made in time. The views expressed by the EAT in Bodha v Hampshire Area Health Authority

[1982] ICR 200

at p 204on this point were preferred to those expressed in Lawal:-

[412]To this end the Tribunal should consider:(1) the substantial cause of the claimant's failure to comply with the time limit;

(2) whether there was any physical impediment preventing compliance, such as illness, or a postal strike;

(3) whether, and if so when, the claimant knew of his rights;

(4) whether the employer had misrepresented any relevant matter to the employee; and

(5) whether the claimant had been advised by anyone, and the nature of any advice given; and whether there was any substantial fault on the part of the claimant or his adviser which led to the failure to present the complaint in time.

[413]In addition, in Palmer and Saunders v Southend-on-Sea BC, and following its general review of the authorities, the Court of Appeal (per May LJ) concluded that "reasonably practicable" does not mean reasonable (which would be too favourable to employees), and does not mean physically possible (which would be too favourable to employers) but means something like "reasonably feasible".

[414]Subsequently in London Underground Ltd v Noel

[1999] IRLR 621

, Judge LJ stated at paragraph 24 "The power to disapply the statutory period is therefore very restricted. In particular it is not available to be exercised, for example, "in all the circumstances", nor when it is "just and reasonable", nor even where the Tribunal "considers that there is a good reason" for doing so. As Browne Wilkinson J (as he then was) observed: "The statutory test remains one of practicability … the statutory test is not satisfied just because it was reasonable not to do what could be done" (Bodha v Hampshire Area Health Authority

[1982] ICR 200

at p 204).

[415]In Bodha it was ruled that the existence of an impending internal appeal was not in itself sufficient to justify a finding that it was not reasonably practicable to present a complaint to a tribunal within the time limit. This was approved in Palmer.

[416]It was held in Trevelyans (Birmingham) Ltd v Norton

[1991] ICR 488

, that “…where an applicant has knowledge of his rights to claim unfair dismissal before an industrial tribunal, then there is an obligation upon him to seek information or advice about the enforcement of those rights. Third, that if his advisers give him unsound advice or fail to give him proper advice, or fail to give him advice on a relevant issue, then the failure of those advisers is the failure of the applicant and does not provide a good excuse for the escape clause.”

[417]Underhill P as he then was considered the period after the expiry of the primary time limit in Cullinane v Balfour Beattie Engineering Services Ltd

UKEAT/0537/10

(in the context of the time limit under section 139 of the Trade Union & Labour Relations (Consolidation) Act 1992, which is the same test as in section 111 of the Act) at paragraph 16: “The question at “stage 2” is what period - that is, between the expiry of the primary time limit and the eventual presentation of the claim - is reasonable. That is not the same as asking whether the claimant acted reasonably; still less is it equivalent to the question whether it would be just and equitable to extend time. It requires an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted - having regard, certainly, to the strong public interest in claims in this field being brought promptly, and against a background where the primary time limit is three months.” Constructive dismissal

[418]Under section 95(1)(c) of the Employment Rights Act 1996 (“the Act”), an employee is dismissed if he terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

[419]If the claimant’s resignation can be construed to be a dismissal then the issue of the fairness or otherwise of that dismissal is governed by section 98 (4) of the Act which provides “…. the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and –

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

[420]We have also considered section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, and in particular section 207A(2), (referred to as “s. 207A(2)”) and the ACAS Code of Practice 1 on Disciplinary and Grievance Procedures 2009 (“the ACAS Code”).

[421]The best known summary of the applicable test for a claim of constructive unfair dismissal was provided by Lord Denning MR in Western Excavating (ECC) Limited v Sharp

[1978] IRLR 27

: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of his employer’s conduct. He is constructively dismissed. The employee is entitled in these circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”

[422]In Tullett Prebon PLC and Ors v BGC Brokers LP and Ors Maurice Kay LJ endorsed the following legal test at paragraph 20: “… whether, looking at all the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract.”

[423]In Courtaulds Northern Spinning Ltd v Sibson it was held that reasonable behaviour on the part of the employer can point evidentially to an absence of significant breach of a fundamental term of the contract. However, if there is such a breach, it is clear from Nottingham County Council v Meikle

[2005] ICR 1

CA; Abbey Cars (West Horndon) Ltd v Ford EAT 0472/07; and Wright v North Ayrshire Council

[2014] IRLR 4

EAT, that the crucial question is whether the repudiatory breach “played a part in the dismissal” and was “an” effective cause of resignation, rather than being “the” effective cause. In need not be the predominant, principal, major or main cause for the resignation.

[424]With regard to trust and confidence cases, Dyson LJ summarised the position thus in Omilaju v Waltham Forest London Borough Council

[2005] IRLR 35

CA: The following basic propositions of law can be derived from the authorities: 1. The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Limited v Sharp

[1978] 1 QB 761

. 2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example Malik v Bank of Credit and Commerce International SA

[1998] AC 20

, 34H – 35D (Lord Nicholls) and 45C – 46E (Lord Steyn). I shall refer to this as “the implied term of trust and confidence”. 3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract, see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd

[1981] ICR 666

CA, at 672A; the very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship. 4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at page 35C, the conduct relied on as constituting the breach must: “impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer”.

[425]This was been reaffirmed in Buckland v Bournemouth University Higher Education Corporation

[2010] IRLR 445

CA.

[426]The same authorities also repeat that unreasonable conduct alone is not enough to amount to a constructive dismissal (Claridge v Daler Rowney

[2008] IRLR 672

); and that if an employee is relying on a series of acts then the tribunal must be satisfied that the series of acts taken together cumulatively amount to a breach of the implied term (Lewis v Motorworld Garages Ltd

[1985] IRLR 465

). In addition, if relying on a series of acts the claimant must point to the final act which must be shown to have contributed or added something to the earlier series of acts which is said, taken as a whole, to have broken the contract of employment (Omilaju v Waltham Forest London Borough Council

[2005] IRLR 35

CA).

[427]The judgment of Dyson LJ in Omilaju was endorsed by Underhill LJ in Kaur v Leeds Teaching Hospital NHS Trust

[2018] IRLR 833

CA. Having reviewed the case law on the “last straw” doctrine, the Court concluded that an employee who is the victim of a continuing cumulative breach of contract is entitled to rely on the totality of the employer’s acts notwithstanding a prior affirmation by the employee.

[428]If the suggested last straw was entirely innocuous, further guidance was given in Williams v The Governing Body of Alderman Davies Church in Wales Primary School

UKEAT/0108/19/LA

at paragraph 33. “If the most recent conduct was not capable of contributing something to a breach of the Malik term, then the Tribunal may need to go on to consider whether the earlier conduct itself entailed a breach of the Malik term, has not since been affirmed, and contributed to the decision to resign.”

[429]In addition, it is clear from Leeds Dental Team v Rose

[2014] IRLR 8

EAT, that whether or not behaviour is said to be calculated or likely to destroy or seriously damage the trust and confidence between the parties is to be objectively assessed, and does not turn on the subjective view of the employee. In addition, it is also clear from Hilton v Shiner Ltd - Builders Merchants

[2001] IRLR 727

EAT, that even where there is conduct which objectively could be said to be calculated or likely to destroy or seriously damage the trust and confidence between the parties, if there is reasonable and proper cause for the same then there is no fundamental breach of contract.

[430]A claimant cannot rely upon a breach of contract which he/she has been taken to have affirmed. Affirmation can, of course, have been express, but it can also be implied by inaction and delay, although simple delay is rarely enough. In Chindove-v-Morrisons

UKEAT/0201/13/BA

, Langstaff J said this (paragraph 26); “He [the claimant] may affirm a continuation of the contract in other ways: by what he says, by what he does, by communications which show that he intends the contract to continue. But the issue is essentially one of conduct and not of time….. It all depends upon the context and not upon any strict time test.”

Conclusions

[431]This has been a factually complex case involving four Claimants. In relation to our conclusions we considered firstly whether each Claimant made a protected disclosure. We then dealt with each Claimant in turn in respect of their allegations of detriment. In the case of Ms Turner we also considered whether each allegation of detriment was also a breach of the implied term of trust and confidence. Protected disclosures Alleged disclosure in her e-mail dated 20 November 2020

[432]In relation to Mrs Pennington’s e-mail dated 20 November 2020, the Respondent accepted in correspondence that the passage saying, “Further information, guidance and support is needed to help interviewers make appropriate decisions, especially as line managers are not medical experts as you concede”, was capable of being a qualifying disclosure tending to show that the health and safety of an individual had been or could be endangered.

[433]In closing submissions the Respondent suggested that this tangentially referred to health and safety and disputed the other elements of the test. It submitted that Mrs Pennington was really concerned about pay, work and hours. It was further submitted that it was fanciful that a medical expert needed to conduct the CCT discussions. We accepted that a medical expert would not be needed at such discussions and if an employee had raised a medical issue needing advice, the manager could have then sought medical advice.

[434]Mrs Pennington’s case was that her disclosure was the passage accepted by the Respondent and it related to health and safety going back into the field. She had also said that it tended to show there was a miscarriage of justice. Mrs Pennington adduced no evidence as to how what she said tended to show that there had been, was or could be a miscarriage of justice. Words suggesting a miscarriage of justice were not used in the e-mail. We did not accept that Mrs Pennington had a reasonable belief that she had disclosed information tending to show a miscarriage of justice.

[435]In relation to whether she reasonably believed that it tended to show there was a danger to health and safety, although the e-mail was predominantly about work, pay and hours, her evidence was that it was also about health and safety. She was not concerned about her own circumstances, but those of other people. Her evidence was inconsistent in relation to what her primary concern was, however she believed that there was a reference to health and safety and was concerned about those who were clinically vulnerable. We accepted her evidence in this respect. We accepted that she reasonably believed that the passage tended to show that there was risk to health and safety.

[436]We also accepted that Mrs Pennington believed that there was a danger to her colleagues and members of the public. We accepted that Mrs Pennington had a reasonable belief that the disclosure was in the public interest.

[437]Mrs Pennington made a protected disclosure in this e-mail. Mrs Walker Alleged disclosure in her e-mail dated 20 November 2020

[438]The Respondent accepted that three passages in the e-mail could amount to information relating to health and safety, namely: “It appears this is an exercise designed to pressurise staff to return to the field when it is clearly unsafe to do so”, “The virus cannot move it can only move if people move about that is a fact. The R rate in this region is very high and I am concerned this seems to have been ignored.” and “What safeguards are ONS going to give to those staff who decided to go out into the field? What happens if they contract Covid-19 as a result of their work”. The Respondent conceded that information was capable of being a qualifying disclosure that the health and safety of an individual had been or was likely to be endangered.

[439]The Respondent disputed that there was reasonable belief that the information tended to show this, on the basis that the e-mail was predominantly about issues in relation to CCT and work hours and pay and they were being used to combat issues about those matters. We rejected that submission. The Respondent submitted that the Claimant was evasive and would answer questions with questions, we accepted that she did come across as evasive at times. Mrs Walker had not read the documentation before sending her e-mail, however she was sending it from a position of being disabled and against her knowledge that Covid rates were high and that people were dying. We reminded ourselves that the belief in the information does not have to actually be correct. Mrs Walker had referred to scientific studies, covid rates and the effects on postal workers. We accepted that she had a reasonable belief that the information in the e-mail tended to show that there was a danger to health and safety. Mrs Walker did not give evidence about how covid restrictions were being breached and her e-mail did not refer to them. We did not accept that she reasonably believed the information tended to show that there had been a breach of a legal obligation in that respect.

[440]The Respondent disputed Mrs Walker’s belief that the disclosure was in the public interest. At the time, her nephew was on a ventilator, she knew there was not a vaccine in place, she was aware Covid related deaths were rising. Field interviewers would interact with members of the public and we accepted that Mrs Walker believed there was a risk. In the circumstances we accepted that Mrs Walker had a reasonable belief that the disclosure was in the public interest.

[441]We accepted that she made a public interest disclosure in her e-mail. As signatory to Mrs Pennington’s e-mail

[442]Mrs Walker thought that the passage accepted by the Respondent tended to show that there was a health and safety issue. Mrs Walker’s own e-mail included concerns about dangers to health and safety and we accepted that this was also what she had in her mind when she was added as a signatory to the e-mail. We accepted that she had a reasonable belief that it tended to show that the health and safety of individuals was being or could be endangered. For the same reasons as with her own e-mail we accepted that she believed it was in the public interest. We accepted that she had also made a public interest disclosure in this respect. Ms Turner Ms Turner’s e-mail dated 20 November 2020

[443]Ms Turner’s e-mail made no mention of the health and safety of individuals and it only related to financial matters. Her evidence was that their health and safety and that of households was in her mind, however that did not feature in her e-mail. Ms Turner’s evidence was that if she had written the e-mail ‘today’ it would have been written differently was significant, she was effectively accepting that it did not say what she said it did. The e-mail did not refer to or suggest that national covid restrictions were being breached. It was significant that Ms Turner had been involved in the KTN trial and had not raised concerns. At Ms Turner’s CCT meeting the same day she said that she was happy to go out and raised no concerns. We were not satisfied that Ms Turner had a reasonable belief that her email tended to show that the health and safety of an individual was endangered or could be endangered or that it tended to show a breach of covid restrictions.

[444]We did not accept that Ms Turner held those views at the time and as such she also did not reasonably believe that the disclosure was in the public interest.

[445]This was not a protected disclosure. As signatory to Mrs Pennington’s e-mail.

[446]Mrs Turner, in her witness statement, said that she thought they were making a protected disclosure in relation to Ms N Jones’ badly worded email and it reflected their concerns about health and well-being. In crossexamination she did not identify a passage which suggested there was a danger to health and safety. She said it was about the end of PSL and a protest against Ms Jones and she accepted it did not mention health and safety. This coupled with her own e-mail and the CCT meeting the same day, we did not accept that Ms Turner reasonably believed that Mrs Pennington’s e-mail tended to show that there was a danger to health and safety.

[447]We did not accept that Ms Turner was raising health and safety concerns at the time and she did not reasonably believe that it was being made in the public interest.

[448]We did not accept that she made a protected disclosure in this email. As signatory to Mrs Pennington’s e-mail

[449]Mr Adams did not address in his witness statement what he believed Mrs Pennington’s e-mail disclosed. His oral evidence was confused, in that he said that the Respondent did not understand the health and safety context about going back into the field, but that the risk assessment looked alright, he had no complaint about the CCT but was concerned about some of the questions and he had no complaint about the trial protocol for KTN. The only passage relied upon was part that the Respondent had conceded was capable of amounting to information about health and safety. The passage was at best an oblique reference to health and safety. Mr Adams’ evidence was that it alluded to not going back into the field. The words health or safety were not mentioned in the e-mail. The vast majority of the e-mail related to the end of PSL and the impact on pay and hours. It was necessary for us to consider whether Mr Adams, at the time of the e-mail, had a reasonable belief that the information tended to show that there was a risk to health and safety, the covid restrictions were not being followed or that there was a miscarriage of justice.

[450]Mr Adams proffered no evidence as to why the e-mail tended to show that there was a miscarriage of justice or how the covid-19 restrictions were being breached by the proposals. His concessions in relation to the policy documents were at odds with such a suggestion. We were not satisfied that Mr Adams had these matters in his mind when Mrs Pennington sent the email.

[451]Mr Adams suggested that he thought it was about reckless decision making and the process was not following the correct pathway and this tended to show that it was about health and safety. It was significant that in the subsequent disciplinary and grievance proceedings that Mr Adams did not suggest that he had raised concerns about health and safety. His CCT discussions were also very inconsistent with him raising such concerns. The discussion on 26 November 2020 related to his personal circumstances and he would not personally put himself in the position of returning to the field and he considered there were more than enough people to go out. He did not refer to any risks to his colleagues or members of the public. The later discussion on 18 December 2020 was also significant, the Claimant’s oral evidence was at odds with his written note and we were not satisfied he made any references to health and safety issues, other than in relation to his personal circumstances. The focus was on the ending of PSL, hours and pay. If Mr Adams had believed that he was raising concerns about general health and safety he would have said so in the later interactions with the Respondent. We were not satisfied that Mr Adams had a reasonable belief that the e-mail tended to show there was a risk to health and safety.

[452]In terms of belief in the public interest, Mr Adams did not refer to health and safety in the disciplinary and grievance processes or about issues to health and safety in the CCT discussions or at the various other times he alleged to have made disclosures. Mr Adams was concerned with his personal circumstances. The focus of the e-mail was on issues relating to pay and hours. We did not accept that Mr Adams had a reasonable belief that the e-mail was sent in the public interest.

[453]We were not satisfied that Mr Adams made a protected disclosure. In a meeting on 25 November 2020, that it was unsafe to go out, they were persuading people to go out into an unsafe environment, due to the risk of the spread of covid-19 and it was a breach of government guidelines because they were expected to go into people’s houses.

[454]At no stage was there a suggestion that field interviewers would go into people’s homes to interview them. The protocol and risk assessment provided information to the contrary and Mr Adams had no complaints about those documents. Mr Adams’ witness statement referred to what the Claimants said in general terms, but not what he claimed to have said and he was unable to remember at the hearing before the Tribunal. The minutes of the meeting were detailed and included things that Mr Adams had raised. We were not satisfied that Mr Adams made any reference to risks to health and safety if field interviewers went back out into the field. Similarly we were not satisfied that Mr Adams made any mention of covid-19 restrictions being breached by the proposal or that there was a miscarriage of justice. Mr Adams did not give information about those matters or that he could have reasonably believed that he did.

[455]Mr Adams did not make a protected disclosure on 25 November In a telephone conversation with Ms Evans on 18 December 2020, that it was unsafe to go out, they were persuading people to go out into an unsafe environment, due to the risk of the spread of covid-19 and it was a breach of government guidelines because they were expected to go into people’s houses

[456]Mr Adams did not set out in his witness statement what he claimed amounted to a disclosure. In oral evidence, he said he told Ms Evans it was dangerous to go back into the field. We rejected that evidence, Mr Adams said what he told her was in his handwritten note at p406 and there was no such reference. We were not satisfied that Mr Adams gave any information tending to show that there was a risk to health and safety due to the spread of covid-19 or that government guidelines were being breached, or that he could have reasonably believed that he did. We were not satisfied that Mr Adams gave any information which tended to suggest that there had been or could be a miscarriage of justice.

[457]Mr Adams did not make a protected disclosure on 18 December In a meeting with Mr Lambert on 11 March 2021, that it was unsafe to go out, they were persuading people to go out into an unsafe environment, due to the risk of the spread of covid-19 and it was a breach of government guidelines because they were expected to go into people’s houses

[458]We did not accept that Mr Adams raised any concerns about health and safety with Mr Lambert at the meeting on 11 March 2021. The notes of the meeting did not refer to such a reference. Mr Adams’ evidence was that he could not remember precisely what he had said. Mr Adams did not give evidence that he gave information tending to show there was a breach of covid-19 restrictions or that there was a miscarriage of justice. We were not satisfied that Mr Adams disclosed any information which could tend to show that health and safety was being put in danger, there was a breach of a legal obligation in relation to covid-19 restrictions or there was a miscarriage of justice, or that he could have reasonably believed that he did. The lack of reference to any such matters in any of the disciplinary or grievance hearings was inconsistent with Mr Adams’ case.

[459]Mr Adams did not make a protected disclosure on 11 March 2021. In various Yammer posts on about 23 November 2020, that it was unsafe to go out, they were persuading people to go out into an unsafe environment, due to the risk of the spread of covid-19 and it was a breach of government guidelines because they were expected to go into people’s houses

[460]Mr Adams did not give evidence as to what he said on Yammer, which provided information about there being a risk to health and safety, that there was a breach of covid-19 restrictions or there was a miscarriage of justice. We found that he did not post anything on Yammer which could be said to give information about such matters. We did not accept that Mr Adams gave any information which could tend to show those matters or that he could have reasonably believed that he did.

[461]Mr Adams did not make any protected disclosures on Yammer on 23 November 2020. Detriment claims and the allegations of breach for Ms Turner’s constructive dismissal claim General points

[462]For completeness, in relation to Ms Turner’s and Mr Adams detriment claims we would have reached the following conclusions in the event that they had made a protected disclosure.

[463]We also made the following general findings about the claim.

[464]The Claimants’ case was that there was a conspiracy involving AB, Ms Evans, Ms Fernandes, Mr Gibbons and others. Their case was that everyone in the ONS knew about the e-mails sent on 20 November 2020 and that HR and those individuals had orchestrated a campaign against them. The Claimant’s submitted that their claims were similar to the situation in Moussa. They relied on references in e-mails to their behaviour being described as unprofessional and unacceptable, the four main ringleaders, bringing down a peg or two and spreading false information and scaremongering on Yammer. The Claimants submitted that the HR managers had first or second hand knowledge of the disclosures and that there was a collective memory against them and this led to an unwillingness of investigators, decision managers and appeal managers to adopt a sufficiently sceptical questioning approach to information provided by ONS management. Reliance was also placed on Mr Lambert seeking guidance from Mr Gibbons about the grievance process. Further that senior managers were too willing to support their junior managers.

[465]In relation to collective memory and the suggestion of conspiracy, the Respondent submitted that the Tribunal heard from many witnesses who were independent and free from any malign influence and that was apparent from:(1) the light sanctions applied by Mr Gibbons,

(2) the Claimants were successful in their disciplinary appeals, and

(3) the processes were thorough. The Respondent submitted that there was no realistic suggestion of a malign management culture or institutional ill will.

[466]We accepted that Ms Evans thought it was unprofessional to send inaccurate information, when it was apparent that the documentation attached to Ms N Jones’ e-mail had not been read. Ms Evans also considered that the information the Claimant’s had been sharing on Yammer was inaccurate and was scaremongering and the Claimants were trying to get the field force to worry unnecessarily. The e-mails sent between Mr Woodland, Ms Williams and Ms N Jones on 23 November 2020 needed to be put in context, namely that the references to unacceptable, unreasonable and unprofessional conduct related to what took place on 23 November 2020 and the way in which the Shropshire Team responded to Ms Evans trying to reassure them, coupled with what AB reported had been said, including that it had been said Nicola Jones needed to be brought down a peg or two. The events of 23 November 2020 were what the Claimants managers were concerned about. The reference to ringleaders by Ms Thomas was to the matters subject to the investigations .

[467]It was significant that different HR advisers were involved at the various stages of the disciplinary and grievance processes. Mr Gibbons, who had initiated the disciplinary proceedings and drafted the terms of reference for the disciplinary investigations, was the decision manager. When Mr Gibbons reached his final decisions on the disciplinary allegations, he downgraded the seriousness of the allegations to minor misconduct and imposed low level sanctions. Ms Thomas had said that Ms Evans was too close to the situation to undertake the fact finding for the disciplinary investigation. It was further significant that all four Claimants were successful in their appeals and Ms Studley overturned all of the disciplinary decisions. The grievance investigations were thorough and the decision makers and investigators were not part of the Claimants’ department and were independent to them and the others involved in the complaints. The Claimants pursued grievances against Mr Raybould and AB suggesting they had acted maliciously. Mr Raybould raised a grievance against Mrs Walker and Ms Turner for making malicious allegations against him. It appeared to the Tribunal that there was an element of tit for tat in the way the grievances were raised, however the Respondent was left in a difficult position whereby grievances against Mr Raybould, which were more than 3 months old, were allowed to proceed and Mr Raybould then sought to make similar allegations against Mrs Walker and Ms Turner after 3 months.

[468]The Claimants made assertions of a conspiracy on the basis that they had made protected disclosures. We accepted the Respondent’s witnesses’ evidence that there was not an issue with the content of the email sent on 20 November 2020 to Mr Bell, because he had invited such comment. The concerns were about what transpired after the e-mails had been sent. We were not satisfied that Mr Gibbons, Ms Evans, Ms N Jones, Ms Fernandes and AB and conspired together with the assistance of HR to ensure that the Claimants were punished. The reduction of seriousness of the allegations demonstrated that matters were being dealt with in a considered way and was inconsistent with HR orchestrating a system against the Claimants. The overturning of the disciplinary sanctions was even more cogent evidence that there was not a collective will against the Claimants. Bullying must be taken seriously and once the allegation had been made, the Respondent had to investigate the issue. The Claimants relied on a few references, within numerous documents, in the hearing bundle, however those matters were relied on in absence of the full context. The bundle was also prepared against a background of the Claimants having made many subject access requests. We were not satisfied that there was a conspiracy against the Claimants or that HR orchestrated matters against them and there was a lack of a person who could be said to have masterminded such an undertaking. We were not satisfied that there was a collective ill will against the Claimants.

[469]Although the state of the law, following the decision in Moussa is unclear, we were not satisfied on the facts of this case that there was a collective ill will towards the Claimants or a negative institutional attitude towards them. We rejected that there was a conspiracy or a collective memory of the Respondent acting against the Claimants. Mrs Walker’s detriment claims Allegation 6.1.1. On 23 November 2020 Debbie Evans claimed to have evidence against the Claimant of passing on misinformation and inciting the workforce not to return and that she had evidence to support that the Claimant had made adverse comments on Yammer but it was untrue.

[470]Mrs Walker had put posts on yammer about KTN and the effect it would have. This appeared to Ms Evans to include incorrect information and that Mrs Walker had not read the documentation supplied by Ms N Jones, which we accepted she had not done. Mrs Walker relied on Ms Evans interview, for her grievance, dated 16 August 2021, where she had said that she had no problem with them raising concerns but it was misinformation they were sharing and it looked like they had not understood the plan and she had concerns they were inciting people to act in a certain way. Ms Evans was not questioned about this document. Ms Evans, the same day tried to explain to Mrs Walker what KTN involved and why Mrs Walker’s understanding was incorrect.

[471]We accepted that referring to someone as scaremongering and posting misinformation could create a poor impression of someone and that it could be to their disadvantage. We accepted that Mrs Walker considered that the comment was to her disadvantage and we accepted that a reasonable worker could reach a similar conclusion. We accepted it was a detriment.

[472]Ms Evans had received, Mrs Walker’s, Ms Turner’s and Mrs Pennington’s e-mails which had been sent within a short time of each other. She thought what they were saying appeared coordinated and there was a collective effort. All three e-mails were from the same team and were raising similar issues about pay and hours. We accepted the Respondent’s evidence that only the Shropshire Team was raising such concerns and the Claimants came from that team. We did not accept that there was any detrimental treatment in saying that a campaign was going on.

[473]Ms Evans thought it was unprofessional for Mrs Pennington’s e-mail to have bypassed the Claimants’ immediate line management and on the basis that documents provided had not been read properly. We accepted that Ms Evans viewed that there had been a lack of professionalism on those grounds only and not because of the health and safety concerns raised in Mrs Walker’s and Mrs Pennington’s e-mails. We accepted Ms Evans’ evidence that it was those factors which caused her to consider that Mrs Walker was passing on misinformation about the ending of PSL and its effect on pay and hours, and also inciting others not to return to the field on the basis of that misinformation. We accepted that protected disclosures had no influence on Ms Evans’ view that Mrs Walker was providing misinformation and could be scaremongering and inciting people not to return to work, the influence was the incorrect information she was giving on Yammer to her colleagues.

[474]This allegation was dismissed. Allegation 6.1.2. On 23 November 2020, Debbie Evans telephoned the Claimant and berated her for sending the e-mail.

[475]This was an allegation involving a substantial dispute of fact. We concluded that Ms Evans was not angry on the telephone and did not ‘have a go’/berate Mrs Walker for sending her e-mail. It was significant that Mrs Walker’s message to the rest of the team, shortly afterwards, was inconsistent with what was alleged. Ms Evans explained why she was calling Mrs Walker and tried to explain where Mrs Walker’s understanding was incorrect. The factual allegation was not proven by Mrs Walker and we did not accept that there was a detriment in this respect. The allegation was Allegation 6.1.4. On 25 November 2020, the four Claimants were called to a

[476]We rejected Mrs Walker’s evidence that the team was summoned under false pretences. The agenda for the meeting detailed that the purpose was for discussion about the CCT communication. The meeting discussed that documentation, i.e. the e-mail sent by Ms N Jones and its accompanying documents which included the CCT. The purpose of the meeting was for the Team to be able to express concerns or worries, provide a response to any questions raised, and reassure and clarify them about the ending of PSL. The notes of the meeting showed that a number of issues and questions were raised by the team. We did not accept that anyone was told off for sending e-mails and we did not accept that the meeting was intimidatory. The meeting was not designed to silence the Claimants, to the contrary the Claimants and their colleagues were able to raise concerns and ask questions. Ms Evans had very little involvement in the meeting and there was no evidence that she said anything untoward. We did not accept that Ms Evans was animated in the meeting. Some of the things said frustrated Ms Evans, as was apparent by some of facial expressions, however she did not say anything. This was understandable given the events of 23 November 2020 and the difficulties she had experienced when trying to speak to the team and what had been reported to her by AB. We were not satisfied that the factual basis of the allegation had been proved and as such we were not satisfied there was a detriment.

[477]We were satisfied that the Respondent proved that the health and safety matters raised in the e-mails dated 20 November 2020 had no influence on what happened on 25 November. We were satisfied that the Respondent proved that Ms Evans’ facial expressions were caused by the events of 23 November 2020 and the information which had been posted on Yammer. The health and safety matters raised in the e-mails dated 20 November 2020 had no influence on her.

[478]The allegation of detriment was dismissed. Allegation 6.1.5 On 12 February 2021, Steve Gibbons sent a letter falsely accusing the Claimant of bullying Andrew Barnsley and instigated an investigation into misconduct.

[479]The Respondent accepted that there was an investigation and it was capable of being a detriment. An investigation into conduct is to an employee’s disadvantage and we accepted that Mrs Walker reasonably considered it to be so.

[480]AB had contacted Ms Evans and told her that he had been excluded from a meeting with the Shropshire Team and later that a group chat had been set up called ‘Team Minus AB’. The Claimants argued that AB later said that he had not made a complaint and relied on parts of his interviews for their subsequent grievances, which were taken out of context. AB was alleging that that he was being excluded and the team had stopped talking to him. A grievance was not required in an allegation of bullying and it was common ground that when bullying was alleged the Respondent was duty bound to investigate it.

[481]It was suggested that an initial fact finding exercise was carried out, which was carried out by Ms Fernandes in order to see if there was any basis to the allegation and she provided a report. Mr Gibbons was concerned about the conduct of team members after the e-mails on 20 November 2020 had been sent.

[482]The Claimants were concerned about the way in which a telephone was obtained from a team member. We accepted that it proved difficult to obtain a telephone without breaching confidentiality and explaining why it was needed. We concluded that although it took time, there was nothing sinister in how it was obtained.

[483]When the telephone was obtained, Mr Davies, Cyber Security lead, was asked to see who was in the group and he looked for messages about AB. He only sent photographs of messages involving AB. When Mr Gibbons considered whether to instigate a formal investigation against anyone in the team he only had the information provided by Mr Davies. Accordingly he was unaware of the comment ‘this is bollox’ and if he had been that person would also have been subject to disciplinary action.

[484]The matters for which Mrs Walker was told that she was being investigated were based on messages she had sent and therefore there was some documentary evidence. The Respondent had a zero tolerance policy on bullying. Mr Gibbons took into account the guidance in the ‘How to assess level of Misconduct’ document and had noted that bullying and offensive personal behaviour was potentially serious misconduct and formal action was required. Mrs Walker had made comments about AB with reference to the Group set up excluding him. The matters discovered were sufficient for Mr Gibbons to consider that they called for an explanation. We did not accept Mrs Walker’s case that there was a false allegation. A false allegation would be alleging something which was known to be incorrect rather than investigating a matter which appeared to involve wrongdoing.

[485]We rejected the Claimant’s submission that because AB had said Mrs Walker had not bullied him that the allegation must have been false. For the reasons stated within the findings of fact the references had been taken out of context.

[486]It was significant that when Mr Gibbons later made his final decision, that he reduced the level of seriousness and imposed an informal warning, the lowest possible sanction. The Claimants submitted that the reason for this was to bring the Claimant’s into line, rather than it showing that Mr Gibbons was properly considering matters and protected disclosures had no influence, we rejected that submission.

[487]The allegations were based on documentary evidence. Mr Gibbons later listened to the Claimants and reduced the level of seriousness, those matters supported his evidence that he was properly considering matters. There was a zero tolerance on bullying and evidence of potentially offensive behaviour. We accepted Mr Gibbons’ evidence as to why he investigated the matters. It was relevant that Mr Gibbons was due to retire at the end of April 2021 and there was no benefit to him to commence the disciplinary process. The cause of the investigation was that AB had alleged he was being excluded and bullied. We were satisfied that Mr Gibbons had proved that the reason for the investigation was that the allegation had been made by AB and there was documentary evidence to support it. We accepted that the Respondent had proved that Mrs Walker’s protected disclosures had no influence on the decision. The cause of the treatment was Mrs Walker’s behaviour after the e-mails had been sent.

[488]Mrs Walker was not subjected to detriment because she had made Allegation 6.1.7 The claimant was required to attend meetings and investigation matters despite being off sick, namely on:(a) 23 March 2021 and

(b)

28 April 2021

[489]On about 4 March 2021, Ms Matthews sent Mrs Walker an invitation to attend an investigation meeting with her. Mrs Walker was off sick at the time. Ms Matthews considered it was better to invite her to a meeting and rearrange it if Mrs Walker said she was too unwell to attend. Mrs Walker sought to rearrange the meeting on 22 March 2021, on the basis that her Trade Union Representative was unavailable, she did not seek to do so due to being off sick. At the meeting on 25 March 2021, Mrs Walker fully engaged in the process. An employee could reasonably consider that being asked to attend a meeting whilst of sick was to their disadvantage. We were not satisfied that Mrs Walker held this view at the time, she sought to rearrange the meeting on the basis of union availability and participated in full. We were not satisfied that it was a detriment.

[490]In any event Ms Matthews did not know that the e-mails of the 20 November 2020 had been sent or what they contained at the time she sent the invitations. She became aware that e-mails had been sent when conducting her interviews with the Claimants. As such the protected disclosures could not have had an influence on her and we were satisfied the protected disclosures had no influence in her decision making. In any event we accepted that the reason Mrs Walker was invited to a meeting was because it was necessary as part of the disciplinary process to hear her version of events. This allegation of detriment was dismissed.

[491]On 20 April 2021, Mrs Walker was invited to attend a disciplinary hearing on 28 April 2021. On 22 April, Mrs Walker’s representative said that she would attend the meeting on the basis it was better to engage with the process and hold the meeting at the earliest opportunity. By this time Mrs Walker had been off sick for just over 2 months. She attended the meeting on 28 April and did not suggest during the meeting that she was not well enough to attend. Mrs Walker’s evidence was that she felt under pressure to attend because Mr Gibbons was going to retire and she wanted it out of the way as a soon as possible. Mrs Walker’s evidence contradicted that she felt that being asked to attend the meeting whilst of sick was to her disadvantage. If the hearing had been delayed, the matter would not have been ‘got out of the way’ as a soon as possible. We did not accept that Mrs Walker considered that this was a detriment.

[492]In any event we were satisfied that the reason why Mrs Walker was invited to a meeting was because it was an important part of the disciplinary process, in relation to allegations for which there was a case to answer. Mr Gibbons did not consider that there was anything in the e-mails dated 20 November 2020 which was inappropriate and he knew Mr Bell actively encouraged such contact from staff. The suggestion that the requirement to attend was because Mr Gibbons was due to retire was a reason unconnected to protected disclosures. Further if Mrs Walker had said she was not well enough to attend Mr Gibbons would have rearranged the meeting. We were satisfied that the protected disclosures had no influence on Mr Gibbons’ decision to invite Mrs Walker to a disciplinary hearing whilst she was off sick. This allegation of detriment was dismissed. Allegation 6.1.8 At the end of April 2021 required the claimant to attend a disciplinary meeting when the investigator Buffy Matthews had said she was going to recommend no further action was taken.

[493]We did not accept that Ms Matthews told Mr Manning that she was going to recommend that there was no case to answer. The factual basis of the allegation was not proved and the allegation of detriment was Allegation 6.1.9 On 28 April 2021 Steve Gibbons found the Claimant guilty of misconduct and issued an informal warning and made derogatory remarks about the Claimant in the outcome letter.

[494]The Respondent accepted that finding the Claimant guilty and issuing an informal warning was a detriment.

[495]Mr Gibbons had seen the messages sent by Mrs Walker and she had the opportunity to make further representations at the hearing. Mr Gibbons had to decide whether or not they amounted to misconduct. Mr Gibbons concluded that the messages about AB were sarcastic and playing to the crowd. We accepted that his interpretation of what was said was a reasonable interpretation and one that he could have legitimately reached. We accepted that he also believed that it was something which could further increase the divisions between AB and the team. Mr Gibbons also considered that referring to someone as a waste of space was discourteous, which we also considered was a conclusion someone could reasonably draw. We did not accept that Mr Gibbons was making derogatory remarks about Mrs Walker, he had concluded the misconduct had occurred and provided the reasons for it and as such he needed to say why. This was not Mr Gibbons showing a critical or disrespectful attitude towards Mrs Walker.

[496]Mr Gibbons, in the disciplinary hearing, said it was nothing to do with the e-mail to Mr Bell it was to do with the actions against AB when he said he did not want to be part of it. This was supportive of Mr Gibbons’ position that the e-mails on 20 November had no influence upon him. It was significant that Mr Gibbons decreased the level of seriousness and applied the lowest possible sanction, demonstrating that he was properly and conscientiously considering the evidence before him. There was documentary evidence showing that the comments had been made. There was nothing for Mr Gibbons to gain by making a finding either way, in that he was about to retire and the disclosures were not about a decision he had taken. We accepted that the reason why the finding was made and the sanction imposed was that there was sufficient and reasonable evidence upon which Mr Gibbons based the decision. We accepted that was the only reason why he made the findings and the protected disclosures had no influence on that decision. This allegation was dismissed. Allegation 6.1.10 In the appeal outcome letter dated 23 June 2021, Ruth Studley said that even though the appeal was upheld that the Claimant had used strong language and assertions and asked her to be mindful as to the effect on her colleagues and drew her attention to the civil service code.

[497]Ms Studley upheld Mrs Walker’s appeal and overturned the decision and rescinded the warning. There was no detriment in this respect.

[498]Mrs Walker’s case was that the detriment was saying that she had used strong language and assertions and asking her to be mindful as to the effect on colleagues and drawing her attention to the civil service code. Mrs Walker had made accusations against AB and there was not an allegation made against him at the time. This was against a background in which the disciplinary allegations had been brought in relation to bullying conduct towards him. Being asked to be mindful of the effect of comments on colleagues is not the same as being reprimanded. We did not accept that a reasonable employee would have considered this to be to their disadvantage. Similarly reminding a civil servant about the civil service code is not something a reasonable employee would consider to be to their disadvantage, all civil servants must adhere to the code. We did not accept Mrs Walker was subjected to a detriment in this respect.

[499]In any event Ms Studley had no knowledge of the e-mails sent on 20 November 2020 or their content. She reached a decision in which she overturned the disciplinary findings and sanction. We were satisfied that the protected disclosures had no influence on her decision or what she wrote in the outcome letter.

[500]This allegation was dismissed. Allegation 6.1.11 The Claimant raised a grievance in March 2021, which was put on hold pending the appeal. A further grievance was raised in June 2021. The investigator, Laura Morgan, into the grievances was not independent from the department. Ms Billinge observed the meetings, but was also the investigator for Mr Adams’ grievance. Laura Morgan was given the questions to ask the people accused in the grievance by HR.

[501]Mrs Walker’s evidence was that the detriment in relation to this allegation was Ms Morgan not being independent, Ms Billinge observing the interview and Ms Morgan being given questions by HR. Putting the grievance on hold was not alleged to be a detriment, it was part of the background.

[502]We found that Ms Morgan did not know the Claimants or the people subject to the grievance and she had no previous relationship with them. She was a trained investigator. Mrs Walker submitted that Ms Morgan followed Ms N Jones on Yammer and therefore could not be independent. Ms Morgan was not cross-examined about this and evidence was not adduced in relation to this point. We did not accept that Ms Morgan was following Ms N Jones on Yammer. Ms Morgan worked in a different department and did not know any of the people involved. We were satisfied that she was independent. We were not satisfied that there was a detriment in this respect.

[503]Ms Billinge sat in on Mrs Walker’s disciplinary investigation, however she had no involvement in Mrs Walker’s grievance. Ms Billinge was the investigator for Mr Adams’ grievance, however there was no disadvantage to Mrs Walker in this respect. We were not satisfied that Mrs Walker established there was any disadvantage to her. A reasonable employee would not have considered this to be to their disadvantage. We were not satisfied there was a detriment in this respect.

[504]Mrs Walker also alleged that Ms Morgan was given questions to ask by HR. In closing submissions, Mrs Walker said that Ms Morgan admitted that HR had written them. This was not the evidence Ms Morgan gave. Ms Morgan wrote her own questions to be asked and then ran them past HR to check. Mrs Walker accepted in cross-examination that there was nothing wrong in running through the questions for interview. The factual allegation was not proven. Further, Mrs Walker’s concession strongly pointed away from her considering there was any disadvantage. We did not accept that she considered she was put to a disadvantage and concluded there was no detriment in this respect.

[505]In any event at the time that Ms Morgan was appointed and when Mrs Walker was interviewed, Ms Morgan had not been sent the e-mails of 20 November 2020 by Mrs Pennington and Mrs Walker, they were sent afterwards. Ms Morgan did not know of or what had been said in the e-mails dated 20 November 2020 at the time of the alleged detriments. Accordingly, we accepted that the Respondent proved that the protected disclosures had no influence on Ms Morgan.

[506]This allegation of detriment was dismissed. Allegation 6.1.13 In October 2021, Sonia Jones dismissed the grievance. The evidence provided by the Claimant was not taken into account and the witnesses provided by the Claimant were not spoken to. It was said that a reasonable investigation went as far as she deemed fit.

[507]Mrs Walker considered that the dismissal of her grievance was to her detriment. We accepted that an employee could reasonably consider the dismissal of a grievance to be to their detriment. We accepted that this was a detriment.

[508]Whether the decision to dismiss the grievance was materially influenced by the protected disclosures needed to be put into context. The grievance report was thorough. There was no mention by Mrs Walker in her grievance meeting about the contents of her protected disclosures or what they were. There was no reference to the protected disclosures or their contents in the grievance outcome letter. Mrs Walker needed to adduce something to show that her protected disclosures materially influenced Ms S Jones, it is not simply a ‘but for’ question. Taking the evidence as a whole we were not satisfied that there was any evidence which suggested that Ms S Jones had in mind Mrs Walker’s protected disclosures when she dismissed her grievance. The outcome letter explained why the decision was reached. It was relevant that Ms S Jones worked in a different department. We were satisfied that Mrs Walker’s protected disclosures had no influence on Ms S Jones’ decision. This allegation was dismissed. Allegation 6.1.15 On 23 February 2022, Kate Thorsteinsson dismissed the appeal against the grievance outcome.

[509]We accepted that Mrs Walker considered that the dismissal of her appeal against the grievance decision was to her disadvantage and that a reasonable employee could also think the same. We were satisfied that this was a detriment.

[510]Dr Thorsteinsson had no previous knowledge of the Claimants prior department. Dr Thorsteinsson gave candid evidence; she asked for all information in which she saw Mrs Pennington’s e-mail dated 20 November 2020, however it was not relevant to the issues she had to decide. The purpose of the appeal was to check for procedural errors and whether there was evidence that the decision manager made a wrong decision. Mrs Walker was asked to clarify her appeal and she provided further information on 20 December. Mrs Walker did not attend the appeal hearing, following IT issues and her declining Dr Thorsteinsson’s offer to rearrange the meeting. Dr Thorsteinsson considered all the points of appeal and provided detailed responses. There was no reference to Mrs Walker’s protected disclosures. She was not satisfied that there were any procedural errors. The decision did not rubber stamp the original outcome, Dr Thorsteinsson identified that more probing could have taken place on the deletion of evidence, but considered it would not have changed the decision. We accepted that Dr Thorsteinsson fully considered the appeal points. The Claimants asked very few questions of this witness.

[511]Mrs Walker, when giving evidence, could not say whether her protected disclosures had any influence on Dr Thorsteinsson. We were satisfied that Mrs Walker’s and Mrs Pennington’s e-mails were not a focus for her and were not something she considered as part of her decision making process. Mrs Walker suggested, in closing submissions, that Dr Thorsteinsson being inexperienced as an appeal manager might have had some bearing, however that did not tend to show why she might have been influenced by a protected disclosure. We were satisfied that the Respondent had proved that the reason for dismissing the appeal was that Dr Thorsteinsson concluded that there were not procedural errors and that the original decision was not wrong. We were satisfied that the Respondent had proved that protected disclosures had no bearing on what Dr Thorsteinsson had to decide and that they had no influence whatsoever upon her. This allegation was Allegation 6.1.17 On 12 August 2022, Kerry Skelding, telephoned the Claimant and said she had been identified as a witness to an incident and asked to speak to Nikki Deneen. The Claimant said she did not think she could help.

[512]The Respondent did not accept that this was a detriment. Being told that you are considered to be a witness to something could be considered to be a detriment if the person was not actually a witness but the person complained about. Mrs Walker considered that she was not a witness when she later found out that she was the person complained about. We accepted that Mrs Walker thought that this was to her disadvantage and accepted that it was a detriment.

[513]Ms Deneen was tasked with investigating Mr Raybould’s grievance. She had no knowledge of the e-mails sent by the Claimants on 20 November 2020 or of their contents. The first she was aware of them was when she saw the bundle for the hearing at the Tribunal. Ms Deneen told Ms Skelding that Mrs Walker had been identified as a witness and asked for contact details, no further information was provided to Ms Skelding. Ms Skelding repeated what she had been told by Ms Deneen.

[514]Mrs Walker’s closing submissions referred to the later invitation to attend a meeting and an attempt to get her to attend a meeting without informing her it was an investigation. Ms Deneen thought that the invitation letters had been sent in early September 2022. It was unfortunate that the letters were not posted and Mrs Walker was sent a Teams link without knowing what the meeting on 21 September was about. Ms Deneen then discovered that the letters had not been sent and we accepted her evidence as to what had occurred.

[515]Mrs Walker suggested in closing submissions that Mr Raybould’s grievance was linked to her protected disclosure, however there was no reference to the contents of the protected disclosures in the grievance documentation. There was no evidence which tended to suggest that Ms Deneen had any knowledge of the protected disclosures or their contents at the time she said Mrs Walker was a witness. We were satisfied that the Respondent proved that the protected disclosures had no influence on Ms Deneen at all. Further we were satisfied that Ms Skelding did as she was asked by Ms Deneen and that the Respondent had proved that the protected disclosures had no influence on her whatsoever.

[516]This allegation was dismissed. Allegation 6.1.18 In Mid-September 2022, Nikki Deneen tried to get the Claimant to a meeting on the pretence of her being witness when in fact she was investigating a grievance against the Claimant. Further attempts were made by letters to get the Claimant to attend after her employment had ended namely on 29 September 2022 and 10 October 2022.

[517]We accepted that being asked to attend an investigation meeting was something Mrs Walker considered to be to her disadvantage. She also considered that she was not a witness but the person complained about. We accepted that a reasonable employee could have thought the same. We accepted that this was a detriment.

[518]We accepted Ms Deneen’s evidence that the reason why she told Ms Skelding that Mrs Walker was a witness was because that was how she had been referred to when she had sought advice as to how to contact her. This was also something which would have protected confidentiality as to who was being investigated and the subject matter. The letters dated 29 September and 10 October, inviting Mrs Walker to attend a meeting, set out that a complaint had been made against her and we did not accept that there was a false pretence within those letters. The letters were sent after Mrs Walker had left the Respondent, however the investigation had started before 14 September and the Respondent considered it was duty bound to investigate Mr Raybould’s complaint.

[519]Mrs Walker relied upon similar reasoning in her closing submissions as to why she said that the sending of these letters was influenced by her protected disclosures. Ms Deneen had no knowledge of the protected disclosures at the relevant times. We accepted that the Respondent proved that Mrs Walker’s protected disclosures had no influence on Ms Deneen whatsoever. This allegation was dismissed. Mrs Turner’s detriment claims/allegations of breach of the implied term of trust and confidence

[520]We concluded that Mrs Turner did not make a protected disclosure and therefore her claims of detriment failed. We however still addressed the individual allegations of detriment for completeness and did so alongside the allegations of breach of contract for her constructive dismissal claim. Allegation 7.1.1 On 23 November 2020, Debbie Evans was angry with the Claimant on the telephone for sending the e-mail to Ian Bell;

[521]There was no suggestion in Mrs Turner’s message, after her conversation, that Ms Evans had been angry with her. We accepted Ms Evans’ evidence that it was Ms Turner who was being sharp with her. We did not accept that Ms Evans was angry in the telephone call. We did not accept that the factual allegation was proven.

[522]For the same reasons as with Mrs Walker’s allegation about her conversation with Ms Evans on 23 November 2020, we accepted that the Respondent proved that protected disclosures had no influence on Ms Evans when speaking to Ms Turner.

[523]We were satisfied that the reason why Mrs Evans spoke to Ms Turner on 23 November 2020 was to give more information about the plans in relation to KTN and to offer reassurance. Ms Evans thought that what had been said in the Claimants’ e-mails of 20 November suggested that they had not read the documents attached to Ms N Jones’ e-mail. She considered that the information which had been posted on Yammer about the ending of PSL was incorrect and it appeared to her to be scaremongering and could worry the field force unnecessarily. Ms Evans spoke to Ms Turner to try and reassure her and explain what the plans were and to correct her misunderstanding as to the position. We accepted that Ms Evans had reasonable and proper cause to contact Ms Turner and that she acted properly and appropriately when speaking to her. We did not accept that there was a breach of contract in this respect. Allegation 7.1.2 On 24 November 2020 Debbie Evans, Nicola Jones, Di Williams

[524]There was a discussion between Ms Evans, Ms Williams, Ms N Jones and Ms Hunt on 24 November 2020. We found that the only behaviour which was discussed was the behaviour of Shropshire Team members on 23 November 2020. We concluded that the discussion had no relation to the e-mails sent by the Claimant’s on 20 November 2020.

[525]We accepted Ms Evans’ evidence that Ms Turner did not want to listen to what she had to say on 23 November 2020 and that Ms Turner was sharp with her. Ms Turner did not want to accept that there would be various work strands. After speaking to Mrs Walker, Ms Turner and Mrs Pennington, Ms Evans tried to speak to Ms Chaney and Ms Farrell but her calls were cut off. She had attempted to speak to Mr Adams, however he had not answered and did not call her back. Ms Evans was then informed by AB that the team were saying to each other that Ms Evans could not be trusted and she was lying. Further he had been excluded and the team were telling others not to talk to Ms Evans. We accepted it was reasonable for an employer to consider that such actions were misconduct and that such an employer could discuss whether disciplinary action would be appropriate. We accepted that the people involved in the discussion on 24 November 2020 were concerned about the behaviour of the Shropshire Team on 23 November 2020. They agreed to take no action at that time. Instead a meeting was set up for the Shropshire Team on 25 November 2020. We accepted that the Respondent had reasonable and proper cause to consider whether disciplinary action should be taken in relation to what occurred on 23 November and at that stage decided against it. We did not accept that there was a breach of contract in this respect.

[526]Further we were satisfied that the Respondent proved that the reason for the discussion was due to the way the Shropshire Team behaved on 23 November 2020 and that the e-mails sent by the Claimants had no influence upon the discussion. Allegation 7.1.3 On 25 November 2020, the four Claimants were called to a

[527]For the reasons set out above, in relation to the same allegation made by Mrs Walker, we did not accept that the team was summoned under false pretences. The purpose of the meeting was for the team to be able to express concerns or worries and for managers to answer questions and reassure the team and provide clarification. No one was told off and the meeting was not designed to silence and/or intimidate the Claimants. We did not accept that Ms Evans was angry and animated in the meeting. We did not accept Ms Turner’s evidence that the tone of the meeting was that the e-mails should not have been sent. We rejected Ms Turner’s assertion that Ms Fernandes’ presence was intimidating because she was senior management and they did not expect her to be at the meeting. Ms Fernandes was middle management and her presence was there to answer questions and queries, as was explained at the beginning of the meeting. We did not accept that this was intimidating. The factual basis of the allegation was not proved.

[528]For the same reasons as set out above, in relation to Mrs Walker, we were satisfied that the Respondent proved that protected disclosures had no influence on the setting up of the meeting and what happened at it.

[529]We were satisfied that the Respondent had reasonable and proper cause to set up the meeting, so that it could answer queries, provide clarification and reassure the team. The managers present behaved appropriately. It was notable that the Team members were messaging each other through the meeting, which was apparent by the pings. We did not accept that Ms Evans was angry and animated in the meeting, she had very little involvement. The meeting was not intimidatory. The Claimants and the team were not told off. The Respondent had reasonable and proper cause to act as it did and we were not satisfied that Ms Turner proved that there was a breach of contract in this respect. Allegation 7.1.4 On 12 February 2021, accused the Claimant of misconduct, namely using offensive language in a private text message and commenced an investigation.

[530]The Respondent accepted that there was an investigation and it was capable of being a detriment. An investigation into conduct is to an employee’s disadvantage and we accepted that Mrs Walker reasonably considered it to be so.

[531]We repeat paragraphs 480 to 483 above in respect of the similar allegation made by Mrs Walker.

[532]Mr Gibbons took into account the guidance in the ‘How to Assess Level of Misconduct’ document and had noted that bullying and offensive personal behaviour was potentially serious misconduct and formal action was required. The comment made by Ms Turner, with reference to senior managers communications, ‘Brain up A***’ appeared to Mr Gibbons to be offensive behaviour, on a forum which was not private and making use of government equipment. The matter for which Ms Turner was investigated was based on a written message she had sent and which Mr Gibbons had seen.

[533]We rejected Ms Turner’s submission that it was a breach of contract because the message was sent in a closed group and no one in the group was offended. Ms Turner was subject to the Civil Service Code and the Respondents standards of discipline. We accepted that it was not necessary for the Respondent to establish that someone in receipt of the message was offended. What was necessary was that the Respondent considered that it appeared to be offensive. Ms Turner was very evasive about what she meant by ‘A***’ at the Tribunal Hearing. It reasonably appeared to Mr Gibbons that ‘A***’ was a reference to the word ‘Arse’, asterisks are commonly used by people to replace letters if what is being said is rude or offensive and when the first letter is left in place it suggests the word. It being suggested that ‘your brain is up your arse’ was something which Mr Gibbons thought was potentially offensive and it was reasonable for him to think that. The group to which the message was sent involved a large number of people and it was done using government property. Mr Gibbons was cross-examined about comments made by other people, however he was unaware of them at the time. We accepted that if he had been aware of a colleague saying, ‘this is bollox’, at the time, that colleague would also have been disciplined. Once Mr Gibbons was satisfied that there was potential serious misconduct he was entitled to start an investigation.

[534]It was significant that when Mr Gibbons later made his decision, he reduced the level of seriousness and imposed an informal warning, the lowest possible sanction. The Claimants submitted that the reason for this was to bring the Claimant’s into line, rather than it showing that Mr Gibbons was properly considering matters and protected disclosures had no influence, we rejected that submission.

[535]The allegation was based on documentary evidence. Mr Gibbons later listened to the Claimants and reduced the level of seriousness of the disciplinary charge, which supported his evidence that he was properly considering matters. There was evidence of potentially offensive behaviour. We accepted Mr Gibbons’ evidence as to why he investigated the matters. It was relevant that Mr Gibbons was due to retire at the end of April 2021 and there was no benefit to him to commence the disciplinary process. We were satisfied that Mr Gibbons had proved that the reason for the investigation was that what was said was potentially offensive and there was documentary evidence to support it. If Ms Turner had made a protected disclosure we would have accepted that the Respondent had proved that it had had no influence on the decision. The cause of the treatment was Ms Turner’s conduct when sending the message.

[536]We were also satisfied that once potentially offensive behaviour comes to the attention of an employer that it would be appropriate to investigate it. Making a remark about managers, which could be considered offensive, to the whole of the team is something which shows disrespect and could lead to the undermining of a manager. Mr Gibbons had documentary evidence that such a remark had been made and we accepted that he had reasonable and proper cause to investigate the matter under the disciplinary policy. He considered that given the nature of the remark it fell under serious misconduct. We accepted that Mr Gibbons had reasonable and proper cause to investigate the matter and inform Ms Turner of the allegation against her. We were not satisfied that there was a breach of contract in this respect. Allegation 7.1.5 On 3 March 2021, Steph Thomas Complex caseworker from Human Resources told the investigating manager Buffy Matthews and decision manager Steve Gibbons that the Claimants were the ringleaders.

[537]We accepted that referring to someone as a ringleader is something that a reasonable employee could consider to be to their disadvantage. We accepted that this was a detriment.

[538]There was no evidence from Ms Thomas before the Tribunal. The email needed to be set into context. The natural reading of the e-mail was that the ringleader comment related to the setting up of the Team Minus AB group. There was no information about the nature or the content of the emails to Mr Bell. Ms Turner needed to show something to demonstrate that the comment was motivated by a protected disclosure made by her. We were satisfied that it related to the creation of the Team Minus AB group. Even if Ms Turner had made a protected disclosure, we would not have been satisfied that it had a material influence on the reference to ‘ringleaders’ in the e-mail.

[539]Saying that it is understood, before a full investigation is undertaken that there were 4 main ringleaders in setting up a group is an opinion which could be reasonably communicated. It might have been better to have not referred to ‘ringleaders’. It was relevant that Ms Matthews was told that separate investigation reports were required. We accepted Ms Matthews evidence that she had no knowledge of the contents of the e-mails sent on 20 November 2020 and that and the reference to ringleaders had no influence on her. We were not satisfied that Ms Turner proved that this was a breach of contract, let alone a fundamental breach of contract. Allegation 7.1.7 In her statement for the disciplinary hearing Debbie Evans accused the Claimant of posting on yammer providing misinformation and scaremongering. This was done without proof and no posts were produced by her.

[540]This allegation related to Ms Evans saying in her interview for the Claimants’ grievances that Ms Turner had posted misinformation on Yammer and it was scaremongering. Ms Turner had posted on Yammer, referring to not getting enough hours and pay cuts if they went into deficit. The documentation attached to Ms N Jones’ e-mail stated that if people were in deficit, due to a lower work allocation, they would not be penalised. What Ms Turner was saying was not accurate. To say that something in such circumstances was misinformation could not reasonably be considered to be to someone’s disadvantage. Further Ms Evans did not say that it was scaremongering, rather it looked like scaremongering. No disciplinary allegations were made about the message. This was what the situation appeared to Ms Evans. She was answering questions in relation to the grievances raised by the Claimants. We did not accept that a reasonable employee would have considered this to be their disadvantage, in circumstances where no action was taken and that person had put up the post. We did not accept that Ms Turner reasonably considered that this was to her disadvantage and there was no detriment.

[541]Ms Evans was answering questions in response to the grievance raised by the Claimants and what prompted the telephone calls on 23 November 2020. Ms Evans considered that what had been said about the ending of PSL was incorrect in the Yammer messages and that the effect had been explained in the documents attached to Ms N Jones’ e-mail. This allegation ties in with the telephone calls on 23 November 2020. For the same reasoning we were satisfied that if Ms Turner had made a protected disclosure on 20 November 2020, that it had no influence on Ms Evans in what she said in August 2021. We were satisfied that she considered that incorrect information was being provided to the team via Yammer posts.

[542]We accepted that Ms Evans had reasonable and proper cause to say what she considered the situation to have been, which was the cause of the telephone conversations on 23 November 2020. It would not be reasonable to expect Ms Evans to provide documents when responding to questions for the first time. It was significant that no action was taken against Ms Turner in relation to her post about PSL. We were not satisfied that Ms Turner proved that there was a breach of contract in this respect. Allegation 7.1.8 On 28 April 2021 Mr Gibbons concluded the Claimant had been guilty of minor misconduct and issued an informal warning. The statements against the Claimant did not make any reference to abusive language. She was not shown some of the evidence asked for.

[543]We accepted that issuing an informal warning for minor misconduct could be something that a reasonable employee could consider to be to their detriment. This was detriment. Ms Turner knew that she had made the comment and it was confirmed it was within the date range in the allegation. We did not accept that a reasonable employee would have considered the way in which it was communicated rather than providing a further copy of the post would have considered it to their detriment.

[544]During the investigation meeting and the disciplinary meeting, Ms Turner was evasive about what she had meant by ‘A***’. Ms Turner had asked for evidence that someone found the comment offensive and for proof that she had made the comment between 18 and 25 November 2022. Mr Gibbons was satisfied that making such a comment was offensive and he considered that it was important that communications were courteous. The comment was made to virtually the whole of the team. It might not have been directed to someone within the group, however it was something which could be considered to be discourteous and the person or people to whom it was directed could find it offensive. Notwithstanding Ms Turner’s responses as to what A*** meant, Mr Gibbons gave her the benefit of the doubt and concluded it was flippant rather than intending to cause offence. He downgraded the seriousness to minor misconduct and issued an informal warning, which was not recorded on Ms Turner’s file. We accepted that Mr Gibbons fully considered the allegation and his decision was based upon what Ms Turner told him and his assessment of the evidence. We were satisfied that Mr Gibbons considered that the comment was discourteous, it was offensive, and should not have been made. Ms Turner knew that she had made the comment and Mr Gibbons checked it was within the date range and confirmed it to her. We were satisfied that Mr Gibbons proved that the above was the motivation behind his sanction and that if Ms Turner had made a protected disclosure it would have had no influence upon him.

[545]We accepted that Mr Gibbons had reasonable and proper cause for finding there had been minor misconduct and issuing an informal warning. He considered that the comment was offensive and we accepted that such a conclusion was reasonable. He took into account the evidence and reassessed the seriousness. Ms Turner was subject to the Civil Service Code. She had been evasive about what she had intended, however she was still given the benefit of the doubt. The finding was based on written evidence and Ms Turner knew she had made the comment and we did not accept that she had proved that she considered that she was at any disadvantage. Sending messages of that type, to a large group of people, is something which can reasonably be considered to be offensive and discourteous and could undermine managers in their managing of the team. We accepted that Mr Gibbons was entitled to reach the conclusion that he did. We were not satisfied that there was a breach of contract in this respect. Allegation 7.1.10 When investigating the Claimant’s grievance Laura Morgan was not thorough or impartial, namely: (1) She interviewed the people the Claimant complained about first.

[546]Ms Turner could consider that not being interviewed first was to her disadvantage. We accepted that this could be a detriment.

[547]Ms Morgan, when she commenced her investigation, invited the Claimants to attend meetings with her. She also sent invitations to people complained about/witnesses to attend meetings with her. The Claimants’ union representative was not available and therefore the Claimants’ meetings were rescheduled. Mrs Walker had raised with Ms Morgan that she was concerned about delay and she was conscious about the timescales in which the investigation should be carried out. We accepted that Ms Morgan did not want to waste time and at the time she had no knowledge that e-mails had been sent on 20 November 2020 by the Claimants or of their contents. We were satisfied that the reason why she decided to interview the other people first, was to make progress with the investigation and if Ms Turner had made a protected disclosure it would have had no influence upon her.

[548]The grievance policy did not state in which order people should be spoken to. We accepted that the matters which were being alleged, related to events starting in November 2020 and Ms Morgan considered it was important to avoid delay and to make some progress. This was against a background of Mrs Walker raising concerns about delay. We accepted that Ms Morgan had reasonable and proper cause for her decision. We did not accept that Ms Turner proved that there was a breach of contract in this (2) Failed to follow up points with the people against whom the grievances were raised after interviewing the Claimant.

[549]Ms Morgan asked some further questions of witnesses by e-mail after their interviews. Ms Morgan reviewed the evidence she had been given and considered whether she needed to re-interview anyone. Mrs Turner submitted that enquiries should have been made with Ms Evans about deleting material, that AB had never said he raised a grievance against Ms Turner and she was given the impression that they would be interviewed after her.

[550]Ms Evans volunteered that she had deleted information in her interview with Ms Morgan, this was not a matter raised by Ms Turner and it was explored in that interview. We did not accept that there was a matter raised by Ms Turner which would have required re-interviewing her. The point about AB was taken out of context, it was clear from the whole of his interview that he had complained about being bullied and he did not know who was responsible. We accepted that Ms Turner would have been given the impression that witnesses were going to be spoken to after her interview. We accepted that an employee could consider it was to their disadvantage if points were not followed up in an investigation, however in the present case it was not clear what the Claimants were saying they raised that should have been followed up. We were not satisfied that there was a disadvantage in this respect.

[551]Ms Morgan considered all of the evidence and whether she needed to return to the witnesses. She did not consider that further information was required. The report into Ms Turner’s grievance was detailed and crossreferenced the evidence obtained. It set out where evidence conflicted and Ms Morgan gave her opinions on what she had discovered. We accepted that Ms Morgan operated within the terms of reference that she had been given. She had been made aware of Ms Pennington’s e-mail dated 20 November 2020 by Mrs Pennington. We accepted that she considered the contents of that e-mail were nothing to do with her. We accepted Ms Morgan’s evidence that she examined the evidence she had obtained and thought that it was sufficient; this was supported by the detail in her investigation report. She did not consider that the contents of Ms Pennington’s e-mail were relevant and we accepted that it had no influence upon her. If Ms Turner had made a protected disclosure we would have been satisfied that it had no influence on Ms Morgan.

[552]Ms Morgan acted as she thought fit during her investigation. She considered whether she needed to re-interview witnesses after speaking to Ms Turner. The decision was a judgement call for Ms Morgan taking into account her terms of reference. She had obtained a large amount of information and considered what she should do before writing her report. If Ms Turner thought that additional enquiries should be made she could raise those matters during her grievance hearing. The report written by Ms Morgan was detailed and demonstrated that she was considering all matters, including whether further information was required. We accepted that she was acting with reasonable and proper cause and that Ms Turner failed to prove that there as a breach of contract in this regard. (3) Failed to question why evidence conflicted with other evidence. (4) Failed to obtain documentary evidence to support things said by the people accused in the

[553]Ms Morgan set out in her report where accounts differed and highlighted where accounts conflicted. We found that the factual basis for this allegation was not made out.

[554]In relation failing to obtain documentary evidence, Ms Turner said this related to the yammer post she had posted. It was relevant that Ms Turner knew that she had been posting at the relevant time, however an employee could consider it was to their disadvantage if the specific post was not referred to them. The reference to the post was made by Ms Evans in her interview, however a copy was not asked for. We accepted that an employee could consider this was to their disadvantage.

[555]For the reasons set out above, we were satisfied that if Ms Turner had made a protected disclosure that it would have had no influence on Ms Morgan.

[556]The Claimants submitted that Ms Morgan did not include information they had provided in her reports. This was not one of the specific allegations. Ms Turner did not give evidence to the effect that information she had provided was not included. We were not satisfied that the factual basis for this was proved or that Ms Turner suffered a detriment in this

[557]Ms Morgan could have asked Ms Evans for a copy of the Yammer post. We were satisfied that she collated a large amount of information and that taking the process as a whole she obtained what she thought was needed and relevant. We accepted that she was acting with reasonable and proper cause. We were not satisfied that Ms Turner had proved that by not obtaining the post that there was a breach of contract let alone a fundamental one by Ms Morgan. Ms Morgan provided a thorough report highlighting the conflicts and the evidence given. Allegation 7.1.11 Dismissed the grievance in October 2021.

[558]We accepted that dismissal of the grievance was something which Ms Turner reasonably considered was detrimental.

[559]Whether the decision to dismiss the grievance was materially influenced by the protected disclosures needed to be put into context. The grievance report was thorough. There was no mention by Ms Turner in her grievance meeting about the contents of her protected disclosures or what they were. There was no reference to the protected disclosures or their contents in the grievance outcome letter. Ms Turner needed to adduce something to show that her protected disclosures materially influenced Ms S Jones, it is not simply a ‘but for’ question. If Ms Turner had made a protected disclosure, taking the evidence as a whole, we were not satisfied that there was any evidence which suggested that Ms S Jones had in mind such a disclosure when she dismissed her grievance. The outcome letter explained why the decision was reached. It was relevant that Ms S Jones worked in a different department.

[560]Further the outcome letter explained why the conclusions had been reached. Ms Turner did not make any additional submissions in relation to this allegation and relied upon the contents of her witness statement and her evidence. Ms Turner’s witness statement referred to the investigation report and did not make any specific point against Ms S Jones. We were not satisfied that Ms Turner proved that there had been a breach of contract by Ms S Jones. The evidence to which we were directed, indicated that the decision was taken on the basis of the evidence provided in the report and at the grievance hearing and we were satisfied that there was reasonable and proper cause for the decision. Allegation 7.1.13 On 2 March 2022, Kate Thorsteinsson dismissed the appeal against the grievance outcome.

[561]We accepted that dismissal of the grievance appeal was something that Ms Turner could reasonably consider was to her disadvantage and it was a detriment.

[562]Dr Thorsteinsson had no previous knowledge of the Claimants prior department. Dr Thorsteinsson gave candid evidence. She asked for all information in which she saw Mrs Pennington’s e-mail dated 20 November 2020, however it was not relevant to the issues she had to decide. The purpose of the appeal was to check for procedural errors and whether there was evidence that the decision manager made a wrong decision. Dr Thorsteinsson needed to consider whether a reasonable investigation had been carried out. She considered that Ms Morgan could have undertaken further interviews after speaking to Ms Turner and it would have made things more thorough, however overall she thought that the investigation was reasonable. She did not think it was a procedural error that Ms Morgan had not included the Yammer posts. We accepted that Dr Thorsteinsson fully considered the appeal points. Dr Thorsteinsson was asked very few questions by the Claimants.

[563]Ms Turner was unable to say how Dr Thorsteinsson could have been influenced by the e-mails sent on 20 November 2020. We were satisfied that Mrs Pennington’s e-mail was not a focus for her and was not something she considered as part of her decision making process. Mrs Walker suggested in closing submissions, on behalf of all Claimants, that Dr Thorsteinsson being inexperienced as an appeal manager might have had some bearing, however that did not tend to show why she might have been influenced by a protected disclosure. We were satisfied that the Respondent had proved that the reason for dismissing the appeal was that Dr Thorsteinsson reasonably concluded that there were not procedural errors and that the original decision was not wrong. We were satisfied that the Respondent had proved that if Ms Turner had made a protected disclosure it would have had no bearing on what Dr Thorsteinsson had to decide and that it would have had no influence whatsoever upon her.

[564]We accepted that Dr Thorsteinsson fully considered the appeal points and she gave a detailed and reasoned decision in the outcome letter. It was submitted that Dr Thorsteinsson did not take on board points raised by Ms Turner, however such matters were not put to Dr Thorsteinsson during cross-examination. Dr Thorsteinsson’s conclusions were ones which she could have reasonably reached on the evidence given to her and in the light of what had been submitted on Ms Turner’s behalf at the appeal. The burden of proof was on the Claimant to show that there was a breach of contract. Not liking the outcome is not the same thing as there being a breach. We were not satisfied that Ms Thorsteinsson was acting without reasonable and proper cause or that there was a breach of contract in this Allegation 7.1.14 In August 2022, the Claimant was asked to be a witness, which she agreed to. In October 2022 she was informed she was being investigated in relation to an allegation involving bullying Tony Reynold for breach of confidentiality and putting in an SAR against him. Resolution polices not used until March 2022 were used to do this.

[565]For the same reasons as for Mrs Walker we accepted that it was a detriment for Ms Turner to be told she was a witness and later to be told she was being investigated. Similarly for the same reasons, Ms Deneen had no knowledge of the e-mails sent on 20 November 2020 or their contents and could not have been influenced by them. If Ms Turner had made a protected disclosure we were satisfied the Respondent had proved it would have had no influence on Ms Deneen.

[566]The reason why Ms Deneen referred to Ms Turner as a witness, was that was how she had been referred to when she had sought advice as to how to contact Ms Turner. This was also something which would have protected confidentiality when seeking the contact information from Ms Skelding. We accepted that these were the reasons in Ms Deneen’s mind when she said that Ms Turner was a witness and that she had reasonable and proper cause to do so at that stage. It was significant that when Ms Turner was sent the letter inviting her to a meeting, it correctly stated that a complaint had been made against her. This was not a situation in which she was invited to an investigatory meeting under false pretences. Ms Turner accepted that when there was grievance it should be investigated and the Respondent was investigating in accordance with its obligations to Mr Raybould. In the circumstances, we did not accept that initially calling her a witness and later saying a complaint had been made against her was something likely to destroy or seriously damage trust and confidence. The Respondent had reasonable and proper cause to investigate the complaint, particularly given the Claimant had made similar allegations against Mr Raybould, as he was making against Ms Turner and Mrs Walker.

[567]In relation to the grievance policy used, it was significant that the part to which Ms Turner referred was the section relating to the time to raise a grievance. It was significant that the 2022 and 2020 policies were worded in the same way in that respect. We were not taken to any other sections said to be different. It was also relevant that the allegations made against Mr Raybould had been made against him more than 3 months after the matters complained of. The Respondent needed to treat its employees even-handedly and we accepted that there was reasonable and proper cause to allow Mr Raybould to proceed with his grievance ,when Mrs Turner had been allowed to proceed with her grievance against him in similar circumstances. It was also significant that Mr Raybould was making a similar allegation against Ms Turner as she had made against him. The complaint against Mr Raybould had effectively been that he had maliciously informed AB about the group chat which excluded him and had reported bullying. Mr Raybould then complained that such an allegation against him was malicious.

[568]Ms Deneen believed that she should use the policy in force at the time of her investigation. We were not satisfied that there were any significant differences between the two policies. We accepted that Ms Deneen had not decided to use the 2022 policy for any reason other than it was the policy in force at the time. We accepted that it was reasonable for her to do so in the circumstances. We were not satisfied that this on its own was so serious that it was a breach of the implied term of trust and confidence. We were not satisfied that Ms Turner had proved why the difference was such that it breached her contract. Constructive dismissal claim

[569]We considered the matters as whole and whether taken together they were sufficient to amount to a breach of the implied term of trust and confidence. The Respondent had reasonable and proper cause for the way it acted. It was duty bound to investigate grievances and to treat employees even-handedly. We did not accept that the conduct of the Respondent in any individual respect breached the implied term. We understood that after the dismissal of the grievance appeal that Ms Turner was distressed by being informed that a complaint had been raised against her, however she accepted that complaints should be investigated. Ms Turner’s complaint against Mr Raybould had been made more than 3 months after the events complained about, in the same way that he complained about those allegations made against him more than 3 months after the complaints were made. We did not accept that it was a retaliatory grievance, he felt genuinely aggrieved that complaints had been made against him for doing what he thought was the right thing, by informing AB that he was being excluded and he thought it was wrong. Ms Deneen referring to the 2022 policy was a minor matter. The Respondent was entitled to consider that there had potentially been misconduct by Ms Turner and investigate and discipline her for it. The disciplinary sanction was overturned on appeal. The grievance investigation report was thorough and the conclusions reached on the grievance and appeal were ones which the Respondent was entitled to reach and they were not unreasonable. We were not satisfied, taking the conduct as a whole, Ms Turner proved that there was a fundamental breach of her contract.

[570]We accepted that she resigned after she had been informed about the Raybould investigation. For completeness we rejected the Respondent’s submission that she intended to leave on 14 April 2022. That was how she felt on that day, but felt better a few days later. She did not decide she was going to resign until November 2022.

[571]The claim of constructive dismissal was dismissed.

[572]We concluded that Mr Adams did not make a protected disclosure and therefore his claims of detriment failed. For completeness we provided brief conclusions on what our decision would have been if he had made a protected disclosure. Allegation 9.1.1 At the end of November 2020 Debbie Evans and Kate Fernandes sent abusive e-mails to the Claimant, closing him down, telling to get on and mind his own business between late November 2020 and late February 2021.

[573]We were not satisfied that the Claimant was sent any such e-mails. He did not seek to amend the allegation. The factual basis for the allegation was not proved and there was no detriment. This allegation would have been dismissed in any event. Allegation 9.1.2 On 24 November 2020 Debbie Evans, Nicola Jones, Di Williams

[574]For the same reasons as for allegation 7.1.2, in respect of Ms Turner’s claim, we were satisfied that the reference to disciplinary proceedings was to the behaviour of the Shropshire Team on 23 November 2020 and the Respondent proved it was unrelated to and not influenced by the e-mails sent on 20 November 2020. This allegation would have been dismissed in any event. Allegation 9.1.3 On 25 November 2020, the four Claimants were called to a

[575]For the same reasons as for allegation 6.1.4 for Mrs Walker’s claim and allegation 7.1.3 for Ms Turner’s claim we were not satisfied that the factual basis of the allegation was proved. Further we were satisfied, for the same reasons, that if a protected disclosure had been made it had no influence on the setting up of the meeting or what happened during it. This allegation would have been dismissed in any event. Allegation 9.1.4 On 12 February, accused the Claimant of misconduct, namely using the word ‘bullshit’ in a private text conversation with team members, and commenced an investigation.

[576]We repeat paragraphs 480 to 483 above. Mr Gibbons took into account the guidance in the ‘How to Assess Level of Misconduct’ document and had noted that bullying and offensive personal behaviour was potentially serious misconduct and formal action was required. There was documentary evidence of Mr Adams referring to a colleague as ‘Bell End’ and to management communications as ‘bull shit’. Mr Gibbons considered that this was potentially offensive behaviour. We accepted that referring to someone as ‘bell end’ could be offensive and similarly referring to what people say as ‘bull shit’ could also be offensive. There was documentary evidence on which the allegations were based. Mr Gibbons was unaware of comments made by other people at the time he sent the letter on 12 February 2021 and if he had been aware of the ‘this is bollox’ comment that person would also have been investigated.

[577]Mr Adams suggested that such words were not offensive. We concluded that referring to someone as part of a male sexual organ and describing communications from people as bullshit were things that a reasonable person could easily conclude were offensive. Mr Adams said that there was no legal right to be offended but there was a right to offend, however this was a work situation in which a minimum standard of conduct was expected and that fellow employees should not be expected to tolerate such behaviour.

[578]We accepted that Mr Gibbons considered that there was potential serious misconduct by Mr Adams and he was entitled to start an investigation. It was significant that Mr Gibbons downgraded the seriousness of the allegation after hearing Mr Adams at the disciplinary hearing and issued him with a low level warning, which supported that he was properly investigating matters. We accepted Mr Gibbons’ evidence as to why he investigated matters. We were satisfied that Mr Gibbons proved the reason for the investigation was what Mr Adams said was potentially offensive and there was documentary evidence to support it. If Mr Adams had made a protected disclosure we would have been satisfied that it had no influence on Mr Gibbons’ decision. This allegation would have been Allegation 9.1.5 Undertook a protracted investigation into the allegation which involved intentional delays. This involved changing the decision manager not in a timely manner.

[579]A delay in an investigation is something that an employee could reasonably consider to be a detriment.

[580]In this case the Claimants were notified of the investigation on 12 February 2021. Mr Orchard was appointed as investigator, however he was taken ill shortly afterwards and returned to work on 18 February. Mr Orchard was given the final terms of reference on 23 February 2021 and shortly afterwards was taken ill again. Ms Matthews was appointed as a replacement investigator on 3 March 2021. She conducted interviews between 16 March and 25 March 2021. Ms Matthews’ investigation reports were produced on 19 April 2021. Mr Adams was invited to attend a disciplinary hearing by letter dated 20 April 2021, which he attended on 27 April 2021. The outcome letter was sent on 30 April 2020. Ms Matthews needed to interview many people and produce 4 investigation reports. Mr Orchard was taken ill and he was replaced promptly when Mr Gibbons discovered he was absent again. There was no evidence to suggest that any protected disclosure was a motivating factor for the timing of the change of investigator. Ms Matthews completed her investigation in about 1.5 months. We did not accept that the investigation was protracted or that there were intentional delays. The factual basis of the allegation was not proved. In any event we were satisfied that the reason for the timescale of the investigation was the illness of Mr Orchard and that Ms Matthews needed to conduct 4 investigations and interview many people. If Mr Adams had made a protected disclosure we would have been satisfied that the Respondent proved it had no influence at all on the length of time that the investigation took and this allegation would have been dismissed. Allegation 9.1.6 On about 27 or 28 April 2021, Steve Gibbons concluded the Claimant had been guilty of misconduct and issued a formal warning.

[581]The Respondent accepted that finding Mr Adams guilty and issuing a first written warning was a detriment.

[582]Mr Gibbons had seen the messages sent by Mr Adams and he had the opportunity to make further representations at the hearing. Mr Adams provided an explanation for the ‘bell end’ name as a way of remembering and he was given the benefit of the doubt in that respect. Mr Adams at the hearing argued that his reference to ‘bullshit’ was not offensive. Mr Gibbons did not accept that, he considered it was offensive and unacceptable in communications to colleagues. We accepted that what was being considered was the nature of the behaviour and that it was not necessary to establish that someone was offended. Mr Gibbons downgraded the seriousness of the misconduct to minor misconduct and imposed a lower level sanction. We accepted that Mr Gibbons properly considered the allegations. Mr Adams suggested that the reason why Mr Gibbons was influenced by a protected disclosure was because he wanted to make an impact before he left, there was no evidence of this and we rejected the suggestion. Mr Gibbons had nothing to gain from his decision, one way or the other. We accepted the reason why the decision was made was because Mr Gibbons considered the evidence and found that the allegation was proven. We were satisfied that if Mr Adams had made a protected disclosure it would have had no influence on Mr Gibbons when he made the decision. This allegation would have been dismissed. Allegation 9.1.7 Changed the Claimant’s investigator and decision manager for his grievance so that different people were involved than those with the other

[583]Mr Adams raised his grievance with Mr Lambert and the National Statistician, whereas the other Claimants raised them with Mr Lambert only. The National Statistician referred the grievances to the ONS Employee Relations Team who allocated them to Mr Booth. We accepted that the reason why Mr Adams’ grievance was dealt with separately was due to his raising it with the National Statistician and this was why it took a different path. We accepted that this would have had nothing to do with raising a protected disclosure if Mr Adams had made one. This allegation would have been dismissed. Allegation 9.1.8 Unreasonably delayed the grievance process.

[584]We accepted that unreasonably delaying a grievance process could be to an employee’s disadvantage and could be a detriment.

[585]Mr Booth was asked to be decision manager for Mr Adams’ grievances on 29 June 2021. Mr Adams then asked questions about Mr Booth about whether he would be open and transparent. On 5 July 2021 Mr Adams was asked for his availability for a meeting, which took place on 19 July 2021. The grievance document was lengthy and the matters raised it in were discussed and some of the matters could not be taken forward, due to them being matters which related to the disciplinary proceedings and which should not be reopened. Mr Adams then provided further information and raised a further grievance on 20 July 2021. Mr Booth was on holiday between 23 July and 9 August. On 10 August 2021 Mr Adams said he had further grievances and raised a further grievance with the National Statistician on 12 August 2021. A formal dispute meeting took place on 2 and 3 September 2021, following which Ms Billinge was asked to investigate some of the matters. Mr Adams attended an investigatory meeting with Ms Billinge on 24 September 2021. Ms Billinge then interviewed a further 12 people over 4 weeks and sent her investigation report to Mr Booth on 2 November 2021. On 30 November 2021, Mr Adams was e-mailed with the outcomes of the factfinding. On 9 December dates were proposed by Mr Booth for a decision meeting. On 16 December 2021 Mr Adams was sent an invitation to attend a meeting on 7 January 2022, however he was too ill attend. Mr Adams had a heart attack on 2 November 2021. The resolution hearing took place on 13 January 2022.

[586]The grievances raised by Mr Adams were complicated and numerous. A thorough investigation was carried out by Ms Billinge and she conducted numerous interviews and we accepted that she did that within a reasonable period of time. Not all grievances can be dealt with quickly. We did not accept that there was unreasonable delay in this case and therefore there was not a detriment.

[587]Further Mr Booth did not see the e-mails sent on 20 November 2020 at the time they were sent or during the grievance process. He did not know what the contents of those e-mails were. Ms Billinge was aware that the emails had been sent, but not what was said within them. Neither Mr Booth nor Ms Billinge knew of what had been said in Mrs Pennington’s e-mail or the nature of the matter Mr Adams relied upon as a protected disclosure. We were satisfied that the reason the investigation took the time it did, was due to the number of matters raised and the need to carry out a full and thorough investigation. If Mr Adams had made a protected disclosure we would have been satisfied that it had no influence on Mr Booth’s and Ms Billinge’s decisions in relation to the timing and timescale of the grievance process. This allegation would have been dismissed. Allegation 9.1.9 On 2 September 2021 in a meeting with Craig Fitzek, the Claimant questioned the process undertaken and appeal being upheld and whether action would be taken against those involved in the witch-hunt. He said that if the Claimant’s took it to court the Respondent would defend it irrespective.

[588]We preferred the evidence of Mr Fitzek and found that he did not say what was alleged by Mr Adams. Mr Fitzek said that Mr Adams had the right to seek a Tribunal and the ONS would decide how to respond. The factual basis of the allegation was not proven and there was no detriment. We accepted that Mr Fitzek’s knowledge of Mrs Pennington’s e-mail had no influence on his actions. This allegation would have been dismissed. Allegation 9.1.10 Insisted that the Claimant attended a hearing on 30 November 2021 and a meeting on or around 6 January 2022 despite the Claimant having had a heart attack on 2 November, and heart incidents on 1 December 2021 and 11 February 2022.

[589]On 30 November 2021, Mr Booth wrote to Mr Adams with the outcome of the fact finding and said a formal dispute resolution would be arranged and he would propose dates. Mr Adams was not told he had to attend a hearing on 30 November 2021. Mr Adams said that it was pressure to attend a meeting in December. On 9 December 2021, Mr Booth proposed dates in January, after not having had a response from Mr Adams confirming he would be able to attend a hearing. We did not accept that Mr Adams was being put under pressure to attend a meeting in December, he was asked if he could attend and dates were being proposed in January . the factual basis of this part of the allegation was not proven.

[590]In relation to it being insisted he attended a meeting on around 6 January, dates were proposed for a meeting on 4 or 7 January 2022 and by 14 December 2021 no response was received as to whether he could attend. When Mr Booth spoke to Ms Benjamin he said he noted that Mr Adams had said that the process had been prolonged and they discussed about proceeding in absence if reasonable steps had been taken to secure Mr Adams’ and/or his representatives attendance or the provision of written submissions. An invitation was sent for a meeting on 7 January and Mr Adams said on 6 January he was not well enough to attend. The meeting was rearranged to 13 January at which Ms Benjamin represented Mr Adams. Mr Booth did not insist on Mr Adams’ attendance. Mr Adams had suffered a heart attack and was not well enough to attend. A reasonable employee, in such circumstances could consider it to be to their detriment.

[591]For the reasons set out in relation to allegation 9.1.8, Mr Booth had no knowledge of the contents of the e-mail sent by Mrs Pennington in November 2020. Therefore if a protected disclosure had been made it could not have had any influence on his decision making process. The reason for trying to arrange a meeting was to conclude the grievance within a reasonable period of time. This allegation would have been dismissed. Allegation 9.1.11 On 30 November 2021 dismissed the Claimant’s grievance

[592]The Claimant’s grievance was not dismissed on 30 November 2021, but on 20 January 2022. We accepted that the dismissal of the grievance was to Mr Adams’ disadvantage and was a detriment.

[593]For the reasons set out in relation to allegation 9.1.8, Mr Booth had no knowledge of the contents of the e-mail sent by Mrs Pennington in November 2020. Therefore if a protected disclosure had been made it could not have had any influence on his decision making process. He concluded that the grievance did not succeed after considering the evidence. Mr Booth accepted the evidence contained some things supporting the allegations and other things contrary to that evidence and after weighing the evidence he decided the allegations were not proven. We accepted that the Respondent proved that the reason for dismissing the grievances was that Mr Booth was not satisfied there was sufficient evidence to prove them and if a protected disclosure had been made it would have had no influence whatsoever. This allegation would have been dismissed. Allegation 9.1.12 Delayed the appeal against the grievance decision.

[594]Mr Adams appealed the grievance outcome on 25 January 2022. Ms Dyer asked Mr Booth for the relevant documents on 26 January 2022. On 27 January 2022 Ms Dyer asked Mr Adams to clarify his grounds of appeal, which he did on 7 February 2022. The appeal meeting was held on 24 February 2022. Following that meeting she was sent 474 pages of documents. The decision was sent on 3 March 2022. We did not accept that there was any unreasonable delay in the appeal process. There was a pause while Mr Adams clarified his appeal and there was significant documentation to be considered after the hearing. The factual basis of the allegation was not proved and we were not satisfied there was a detriment.

[595]Ms Dyer had no knowledge of the e-mails sent on 20 November 2020 or their contents during the whole of her involvement of the appeal. If Mr Adams had made a protected disclosure it would have had no influence whatsoever upon her decision making processes. This allegation would have been dismissed. Allegation 9.1.14 On 24 February 2022 dismissed the appeal against the grievance outcome

[596]We accepted that dismissing the appeal would be to Mr Adams’ disadvantage and it was a detriment.

[597]Ms Dyer set out her reasons for dismissing the appeal. We were satisfied that she had no knowledge of the e-mails sent on 20 November 2020 or their contents. She assessed the appeal on its merits and we accepted that the Respondent proved that the reason for dismissing the appeal was that there was insufficient merit in it and if a protected disclosure had been made it would have had no influence whatsoever. Allegation 10.1.1 On 20 November 2020 Debbie Evans alleged in an e-mail that the Claimant had been guilty of insubordination.

[598]Ms Evans did not send an e-mail on 20 November 2020 that Mrs Pennington had been guilt of insubordination. The factual basis of the allegation was not proven.

[599]Ms Evans thought it was unprofessional for Mrs Pennington’s e-mail to have bypassed the Claimant’s immediate line management and on the basis that documents provided had not been read properly. We accepted that Ms Evans viewed that there had been a lack of professionalism on those grounds only and not because of the health and safety concerns raised in Mrs Pennington’s e-mail. The Respondent proved that they were the only reasons why she thought it was unprofessional and Mrs Pennington’s protected disclosure had no influence upon her. This allegation was dismissed. Allegation 10.1.3 On 23 November 2020, Debbie Evans telephoned the Claimant and repeatedly said that ‘Carol was in pieces over this’, whilst raising her voice.

[600]When Mrs Evans called Mrs Pennington, Mrs Pennington’s response was that she did not want to talk to Ms Evans. When Ms Evans said she wanted to clarify the situation Mrs Pennington said she did not want to talk about it. This was a lack of engagement with Ms Evans and was something which was obstructive. We did not accept that Ms Evans raised her voice in the conversation or that she repeatedly said that Carol was in pieces. Mrs Pennington’s message after the meeting, that Ms Evans had been back pedalling like Bradley Wiggins, was inconsistent with Ms Evans raising her voice. However it was consistent with her trying to explain and clarify the situation. We were not satisfied that the factual allegation was proven. We were not satisfied that Mrs Pennington was put to a disadvantage and there was no detriment. This allegation was dismissed. Allegation 10.1.2 On 24 November 2020 Debbie Evans, Nicola Jones, Di Williams

[601]There was a discussion between Ms Evans, Ms Williams, Ms N Jones and Ms Hunt on 24 November 2020. We found that the only behaviour which was discussed was the behaviour of Shropshire Team members on 23 November 2020. We concluded that the discussion had no relation to the e-mails sent by the Claimant’s on 20 November 2020.

[602]In Ms Evans’ conversation with Mrs Pennington on 23 November 2020, Mrs Pennington had been obstructive by saying that she did not want to talk to Ms Evans. After speaking to Mrs Walker, Ms Turner and Mrs Pennington, Ms Evans tried to speak to Ms Chaney and Ms Farrell but her calls were cut off. She had attempted to speak to Mr Adams however he had not answered and did not call her back. Ms Evans was then informed by AB that the team were saying to each other that Ms Evans could not be trusted and she was lying. Further he had been excluded and the team were telling others not to talk to Ms Evans. We accepted that it was reasonable to consider that such actions were misconduct and it would be reasonable for an employer to discuss whether disciplinary action would be appropriate. We accepted that the people involved in the discussion on 24 November 2020 were concerned about the behaviour of the Shropshire Team on 23 November 2020. They agreed to take no action at that time. Instead a meeting was set up for the Shropshire Team on 25 November 2020. We were satisfied that the Respondent proved that the reason for the discussion was due to the way the Shropshire Team behaved on 23 November 2020 and that the e-mail sent by Mrs Pennington had no influence upon the discussion. This allegation was dismissed. Allegation 10.1.4 On 24 November 2020, Nicola Jones e-mailed Steve Woodland and Di Williams saying not to engage with the Claimant’s team.

[603]We were not satisfied that in an e-mail on 24 November 2020, Ms Jones said to Mr Woodland and Ms Williams that they should not engage with Mrs Pennington’s team. Mrs Pennington was unable to identify where the alleged comment had been said. The factual basis of the allegation was not proved and there was no detriment in this respect. The allegation was Allegation 10.1.6 On 8 February 2021 Steve Gibbons e-mailed Debbie Evans, Kate Fernandes and Kate Thomas and said ‘this was a starter for 10’ effectively saying they were all guilty of misconduct.

[604]The sending of an e-mail discussing potential disciplinary charges and saying they should use it as a starter for 10 is something which an employee could reasonably consider to be to their disadvantage. There is the prospect of some action being taken against them and that the prospect of it was not finalised. This was a detriment.

[605]AB had contacted Ms Evans and told her that he had been excluded from a meeting with the Shropshire Team and later that a group chat had been set up called ‘Team Minus AB’. The Claimants argued that AB later said that he had not made a complaint and relied on parts of his interviews for their subsequent grievances, which were taken out of context. AB was alleging that that he was being excluded and the team had stopped talking to him. A grievance was not required in an allegation of bullying and it was common ground that when bullying was alleged the Respondent was duty bound to investigate it.

[606]It was suggested that an initial fact finding exercise was carried out, which was carried out by Ms Fernandes in order to see if there was any basis to the allegation. Ms Fernandes provided a report. Mr Gibbons was concerned about the conduct of team members which post-dated the emails of 20 November 2020.

[607]The Claimants were concerned about the way in which a telephone was obtained from a team member. We accepted that it proved difficult to obtain a telephone without breaching confidentiality and explaining why it was needed. We concluded that although it took time, there was nothing sinister in how it was obtained.

[608]When the telephone was obtained, Mr Davies, Cyber Security lead, was asked to see who was in the group and he looked for messages about AB in the Team Minus AB group. He only sent photographs of messages involving AB. When Mr Gibbons considered whether to instigate a formal investigation against anyone in the team, he only had the information provided by Mr Davies. Accordingly he was unaware of the comment ‘this is bollox’ and if he had been that person would also have been subject to disciplinary action. Mr Davies was also asked to look at the Shropshire Team chat and provided screenshots from that group.

[609]The Respondent had a zero tolerance policy on bullying. Mr Gibbons took into account the guidance in the ‘How to Assess Level of Misconduct’ document and had noted that bullying and offensive personal behaviour was potentially serious misconduct and formal action was required.

[610]When Mr Gibbons looked at the evidence he considered there was evidence that Mrs Pennington had set up the Team Minus AB group and had used inappropriate and abusive language. Mr Gibbons was not aware of evidence that other members of the team had actively sought to become part of the group, or acted in a malicious way, and they were given the benefit of the doubt. This showed that Mr Gibbons was initially considering the behaviour of the whole team.

[611]Mrs Pennington’s complaint was the use of the words, ‘starter for 10’, suggesting that it was like something from University Challenge. We accepted Mr Gibbons’ evidence that he meant it as indicating a starting point for discussions. We accepted that ‘starter for 10’ is in common usage as a phrase to indicate a starting point. Mr Gibbons had set out his thoughts about what disciplinary charges were appropriate and against whom. He used the phrase with reference to the next meeting’s discussion. We rejected Mrs Pennington’s contention that it was a comment implying guilt and further allegations should be looked at. The e-mail clearly referred to potential disciplinary action.

[612]The matters for which Mrs Pennington was investigated, was for setting up the Team Minus AB group and referring to colleagues as ‘Bell end’ and ‘tossers’. The ultimate allegations against Mrs Pennington were based on documentary evidence that she had set up the group and said these things. It was significant that when Mr Gibbons later made his final decision, he reduced the level of seriousness of the allegations. This strongly suggested that Mr Gibbons was properly considering matters. There was a zero tolerance of bullying and there was evidence of potentially offensive behaviour. We accepted Mr Gibbons’ evidence as to why the matters were investigated. It was relevant that Mr Gibbons was due to retire at the end of April 2021 and there was no benefit to him to commence the disciplinary process.

[613]We were satisfied that Mr Gibbons had proved that the reason for considering against whom to bring disciplinary charges was that the allegation had been made by AB and there was documentary evidence to support it and there was evidence of offensive and abusive behaviour. Mr Gibbons had considered what he thought were appropriate charges and proffered them as a discussion point. We accepted that the Respondent had proved that Mrs Pennington’s protected disclosure had no influence on the e-mail that Mr Gibbons wrote or the use of the words ‘starter for 10’. The cause of the treatment was Mrs Pennington’s behaviour after her e-mail had been sent.

[614]Mrs Pennington was not subjected to a detriment because she made Allegation 10.1.7 On 12 February 2021 accused the Claimant of bullying Andrew Barnsley and had excluded him from a group message and commenced an investigation. No likely penalty was indicated.

[615]We accepted that investigating Mrs Pennington for serious misconduct was to her disadvantage and it was a detriment. There was not an indication of the level penalty in the letter, contrary to the policy. Mrs Pennington was very concerned that she could be dismissed. We also accepted that this was a detriment.

[616]We repeat paragraphs 604 to 612 above. The matters for which Mrs Pennington was investigated were based on messages she had sent and that she had set up the group ‘Team Minus AB’. This was based on documentary evidence. The Respondent had a zero tolerance policy on bullying. Mr Gibbons took into account the guidance in the ‘How to Assess Level of Misconduct’ document and had noted that bullying and offensive personal behaviour was potentially serious misconduct and formal action was required. Mrs Pennington had set up the ‘Team Minus AB’ group about which AB had complained and she had used language about people which could be considered offensive. The matters discovered were sufficient for Mr Gibbons to consider that they called for an explanation.

[617]It was significant that when Mr Gibbons later made his decision he reduced the level of seriousness and imposed a low level warning. The Claimants submitted that the reason for this was to bring the Claimant’s into line, rather than it showing that Mr Gibbons was properly considering matters and the protected disclosure had no influence, we rejected that submission.

[618]The allegations were based on documentary evidence. Mr Gibbons later listened to the Claimants and reduced the level of seriousness, those matters supported his evidence that he was properly considering matters. There was a zero tolerance on bullying and there was evidence of potentially offensive behaviour. We accepted Mr Gibbons’ evidence as to why he investigated the matters. It was relevant that Mr Gibbons was due to retire at the end of April 2021, there was no benefit to him to commence the disciplinary process. The cause of the investigation was that AB had alleged he was being excluded and bullied and during the course of it potentially offensive comments were discovered. We were satisfied that Mr Gibbons had proved that the reason for the investigation was that the allegation had been made by AB and there was documentary evidence to support it and that there was documentary evidence suggesting inappropriate behaviour. We accepted that the Respondent had proved that Mrs Pennington’s protected disclosure had no influence on the decision. The cause of the treatment was Mrs Pennington’s behaviour after her email had been sent.

[619]In relation to a likely penalty not being indicated, the template Mr Gibbons used for the letter did not include a reference to likely penalty. He did not know he needed to include it in the letter. We repeat the reasoning in relation to sending the letter. The Respondent proved that the omission was due to Mr Gibbons not knowing he needed to include the likely penalty and that the protected disclosure had no influence whatsoever.

[620]Mrs Pennington was not subjected to a detriment because she made Allegation 10.1.9 On 27 April 2021 issued the Claimant with a first written warning for an inappropriate use of language.

[621]The Respondent accepted that imposition of a first written warning was a detriment.

[622]Mr Gibbons had seen the messages sent by Mrs Turner and she had the opportunity to make further representations at the hearing. Mr Gibbons had to decide whether or not they amounted to misconduct. Mrs Pennington had also accepted that she set up the ‘Team Minus AB’ group. In crossexamination at the Tribunal, Mrs Pennington accepted that using the word ‘tossers’ was offensive and inappropriate.

[623]After hearing from Mrs Pennington and her representative, at the disciplinary hearing, Mr Gibbons considered that the ‘Bell end’ comment was a commonly used nick name and was not meant to cause offence. In relation to setting up the group, Mr Gibbons accepted Mrs Pennington had provided a credible reason and had not established it with the intention of bullying or isolating AB and did not uphold the allegation. This showed that Mr Gibbons was listening to what Mrs Pennington said and considering the allegations on their merits. This was not a case of finding the allegations proved come what may. The allegation found proven was in relation to the reference to management as ‘tossers’, which Mr Gibbons concluded was aggressive and offensive. Given that Mrs Pennington accepted before us that it was offensive and inappropriate we were satisfied that it was a wholly reasonable conclusion for Mr Gibbons to have reached.

[624]We accepted that Mr Gibbons based his conclusions on the evidence before him. It was significant that Mr Gibbons decreased the level of seriousness and applied a low level sanction, demonstrating that he was properly and conscientiously considering the evidence before him. There was documentary evidence showing that the comment had been made. There was nothing for Mr Gibbons to gain by making a finding either way, in that he was about to retire and the disclosures were not about a decision he had taken. We accepted that the reason why the finding was made and the sanction imposed was that there was sufficient and reasonable evidence upon which Mr Gibbons based the decision and he genuinely concluded it was offensive and aggressive. We accepted that was the only reason why he made the finding and the protected disclosure had no influence on that decision. This allegation was dismissed. Allegation 10.1.10 Delayed the Claimant’s appeal against the disciplinary finding, it took about 19 or 20 weeks when if it took longer than 30 days and explanation needed to be provided to the deputy director and the Claimant, which it was not.

[625]A delay to an appeal could be a detriment. In the present case Mrs Pennington submitted her appeal on 20 May 2021 and she was sent the outcome to her appeal on 23 June 2021. The time between submitting the appeal and being sent the outcome was 34 days and not 19 to 20 weeks. The factual basis of the allegation was not proven.

[626]In any event an explanation was required if it took longer than 30 days. The additional 4 days was a short delay, against a background of considering 4 appeals and conducting a further investigation into whether informal resolution had been attempted. We were not satisfied that the length of time the process took was unreasonable. We were not satisfied that Mrs Pennington considered this was to her detriment, given that she sought to withdraw the allegation whilst giving evidence and she was factually incorrect about the length of time it took by a number of months.

[627]In any event Ms Studley had no knowledge of Mrs Pennington’s email dated 20 November 2020 or what it said. We were satisfied that Ms Studley conducted the process as quickly as she reasonably could and the protected disclosure had no influence on her whatsoever. This allegation was dismissed. Allegation 10.1.11 On 23 November 2020, failed to overturn the disciplinary decision on the basis of the Claimant’s grounds of appeal.

[628]The disciplinary finding against Mrs Pennington was overturned and it was rescinded at the appeal, this was something which was positively to her advantage. Mrs Pennington submitted that the detriment was not upholding it on the basis of her grounds of appeal. Ms Studley rejected the points about delay but upheld the appeal on the basis of a procedural matter, in relation to informal resolution. Mrs Pennington’s evidence to the Tribunal was that she wanted the decision overturned on the grounds she raised, but she was happy it was gone, this was significant. We were not satisfied that Mrs Pennington really considered the decision was to her detriment. Further a reasonable employee would not consider that overturning the decision was to their disadvantage if it was not based on all points they raised. All that was necessary, was that one point was successful. We were not satisfied that this was a detriment.

[629]In any event Ms Studley had no knowledge of Mrs Pennington’s email dated 20 November 2020 or what it said. She considered the process followed and decided that the decision should be overturned. The Respondent proved that Mrs Pennington’s protected disclosure had no influence at all in the decision of Ms Studley. This allegation was dismissed. Allegation 10.1.12 Refused to appoint an external investigator into the Claimant’s

[630]The Respondent’s policy did not require there to be an external investigator for the grievance. Mrs Pennington asked on several occasions for an external investigator to be appointed, however those requests were not responded to. Ms Morgan was appointed as investigator on 21 July 2021. Mrs Pennington did not know Ms Morgan and she accepted Ms Morgan did not know the managers. Mrs Pennington thought that she would be listened to by an external investigator. However Ms Morgan was from a completely different part of the organisation and had no knowledge of the people involved. It was significant that concerns raised about the decision manager were addressed and it was changed from Mr Woodland to Ms S Jones. In the context of such a large organisation we were not satisfied that a reasonable employee would have considered not having an external investigator was to their detriment.

[631]In any event we were satisfied that the Respondent followed its policy in respect of who to select as an investigator. It selected a person from a completely different part of the organisation who had no knowledge of any of the people involved or what had been occurring within Mrs Pennington’s department. There was no evidence suggesting that Ms Morgan’s appointment was motivated by a protected disclosure. We were satisfied that the Respondent proved that it selected someone who was independent from the parties involved in the grievance and its decision was not influenced by Mrs Pennington’s protected disclosure. This allegation was Allegation 10.1.14 When investigating the Claimant’s grievance Laura Morgan was not thorough or impartial, namely: (1) She interviewed the people the Claimant complained about first.

[632]Mrs Pennington could consider that not being interviewed first was to her disadvantage. We accepted that this could be a detriment.

[633]Ms Morgan, when she commenced her investigation, invited the Claimants to attend meetings with her. She also sent invitations to people complained about/witnesses to attend meetings. The Claimants’ union representative was not available and therefore the Claimants’ meetings were rescheduled. Mrs Walker had raised with Ms Morgan that she was concerned about delay and Ms Morgan was conscious about the timescales in which the investigation should be carried out, namely the investigation should be carried out within 30 days. We accepted that Ms Morgan did not want to waste time and she wanted to make progress with the investigation. At the time Ms Morgan started her investigation, she had no knowledge that e-mails had been sent on 20 November 2020 by the Claimants or of their contents. It was relevant that Ms Morgan had originally scheduled for the Claimant’s to be interviewed first. We were satisfied that the reason why she decided to interview the other people first was because the Claimants’ union representative was unavailable on the dates scheduled and it was to make progress with the investigation in a reasonable timescale. The Respondent proved that Mrs Pennington’s protected disclosure had no influence on Ms Morgan’s decision to interview the people complained about in accordance with the dates she had booked. This allegation of detriment was dismissed. (2) Failed to follow up points with the people against whom the grievances were raised after interviewing the Claimant.

[634]Ms Morgan asked some further questions of witnesses by e-mail after their interviews. She also reviewed the evidence she had been given and considered whether she needed to re-interview anyone. The Claimants submitted that enquiry should have been made with Ms Evans about deleting material and that AB had never said he raised a grievance against Mrs Pennington.

[635]Ms Evans volunteered that she had deleted information in her interview with Ms Morgan, this was not a matter raised by Mrs Pennington and it was explored in Ms Evans’ interview. We did not accept that there was a matter raised by Mrs Pennington which would have required the reinterviewing of Ms Evans. The point about AB was taken out of context, it was clear from the whole of his interview that he had complained about being bullied and he did not know who was responsible. We accepted that an employee could consider it was to their disadvantage if points were not followed up in an investigation, however in the present case it was not clear what the Claimants were saying they raised that should have been followed up. We were not satisfied that there was a disadvantage and there was not a detriment in this respect.

[636]Ms Morgan considered all of the evidence and whether she needed to return to the witnesses. She did not consider that further information was required. We accepted that Ms Morgan operated within the terms of reference that she had been given. The report into Mrs Pennington’s grievance was detailed and cross-referenced the evidence obtained. She set out where evidence conflicted and gave her opinions on what she had discovered. This demonstrated that she was considering all matters, which would have included whether additional evidence was required. We accepted that before writing the report Ms Morgan considered whether additional information was required from any of the witnesses. Ms Morgan considered that the catalyst or trigger for all of the events was Ms N Jones sending her e-mail on 18 November 2020, i.e. it was that e-mail which caused disagreement within the team leading to AB being excluded and the allegations he raised. Ms Morgan had been made aware of Ms Pennington’s e-mail dated 20 November 2020, by Mrs Pennington during the investigation. We accepted that she considered the contents of the e-mail were nothing to do with her. There was no evidence to suggest any reason why Ms Morgan might have been adversely influenced by Mrs Pennington’s e-mail, let alone the small part which was a protected disclosure. We accepted that deciding whether or not follow up further points with witnesses was a judgement call for Ms Morgan, which she needed to make within the terms of reference she had been given. We accepted Ms Morgan’s evidence that she examined the evidence she had obtained and thought that it was sufficient, this was supported by the detail in her investigation report. The Respondent proved that Mrs Pennington’s protected disclosure had no influence on Ms Morgan’s decisions as to whether or not to raise further points with the witnesses in the investigation. This allegation of detriment was dismissed. (3) Failed to question why evidence conflicted with other evidence. (4) Failed to obtain documentary evidence to support things said by the people accused in the

[637]Ms Morgan set out in her report where accounts differed and highlighted where accounts conflicted. We found that the factual basis for this allegation was not proven. Accordingly there was no detriment in this respect and the allegation was dismissed.

[638]In relation failing to obtain documentary evidence, Mrs Pennington did not suggest that specific documents had not been obtained. The factual basis for this allegation was not proven. The Claimants submitted that Ms Morgan did not include information they had provided in her reports. This was not one of the specific allegations. Ms Pennington provided further documents and Ms Morgan considered those documents and some of them were included in her report. We were not satisfied that the factual basis for this allegation was proved or that Mrs Pennington suffered a detriment in this respect.

[639]Ms Morgan provided a thorough and detailed investigation report. We accepted Ms Morgan’s evidence that she examined the evidence she had obtained and thought that it was sufficient, this was supported by that detail in the investigation report. The Respondent proved that Mrs Pennington’s protected disclosure had no influence on Ms Morgan’s decisions as to what documentary evidence to collect and the way she wrote her report and this allegation of detriment was dismissed. Allegation 10.1.5 On 23 November 2021 dismissed the Claimant’s grievance.

[640]We accepted that the dismissal of the grievance was something which Mrs Pennington reasonably considered was detrimental to her.

[641]Whether the decision to dismiss the grievance was materially influenced by the protected disclosures needed to be put into context. The grievance report was thorough. There was no mention by Mrs Pennington in her grievance meeting about the contents of her protected disclosure or what it was. There was no reference to the protected disclosure or its contents in the grievance outcome letter. Mrs Pennington needed to adduce something to show that her protected disclosure materially influenced Ms S Jones, it is not simply a ‘but for’ question. Taking the evidence as a whole we were not satisfied that there was any evidence which suggested that Ms S Jones had in mind Mrs Pennington’s protected disclosure when she dismissed the grievance. The outcome letter explained why the decision was reached. It was relevant that Ms S Jones worked in a wholly different department. We were satisfied that Mrs Pennington’s protected disclosure had no influence on Ms S Jones’ decision. This allegation was dismissed. Allegation 10.1.16 On 25 February 2022, dismissed the Claimant’s appeal against the grievance outcome.

[642]We accepted that Mrs Pennington considered that the dismissal of her appeal, against the grievance decision, was to her disadvantage and that a reasonable employee could also think the same. We were satisfied that this was a detriment.

[643]Dr Thorsteinsson had no previous knowledge of the Claimants prior department. Dr Thorsteinsson gave candid evidence; she asked for all information in which she saw Mrs Pennington’s e-mail dated 20 November 2020, however it was not relevant to the issues she had to decide. The purpose of the appeal was to check for procedural errors and whether there was evidence that the decision manager made a wrong decision. Mrs Pennington attended the appeal hearing and discussed her points of appeal. Dr Thorsteinsson considered all the points of appeal and provided detailed responses. There was no reference to Mrs Pennington’s protected disclosure. She was satisfied that there were not any procedural errors. The decision did not rubber stamp the original outcome. Dr Thorsteinsson identified that it would have been more thorough to interview witnesses after speaking to Mrs Pennington, however it was not procedurally incorrect. Dr Thorsteinsson also found it would have been more thorough to question AB and Ms Evans further, but overall it was reasonable for Ms Morgan not to do so and there was no procedural error. Dr Thorsteinsson identified that more probing could have taken place on the deletion of evidence, but did not consider it would have changed the decision. Although the appeal was dismissed, the original grievance outcome was not without criticism, which supported that Dr Thorsteinsson was fully and properly considering the appeal on its merits. We accepted that Dr Thorsteinsson fully considered the appeal points. The Claimants asked very few questions of this witness.

[644]Mrs Pennington, when giving evidence, said she thought that her email of 20 November 2020 would have been in Dr Thorsteinsson’s mind, however she was unable to explain the basis of that belief. We were satisfied that Mrs Pennington’s e-mail was not a focus for Dr Thorsteinsson and it was not something she considered as part of her decision making process. Mrs Walker suggested in closing submissions, on behalf of all Claimants, that Dr Thorsteinsson being inexperienced as an appeal manager might have had some bearing, however that did not tend to show why she might have been influenced by a protected disclosure. We were not directed towards any evidence which tended to show that Dr Thorsteinsson was influenced by the protected disclosure. It was highly relevant that she did not know the Claimants or the people subject to the grievance. We were satisfied that the Respondent had proved that the reason for dismissing the appeal was that Dr Thorsteinsson concluded that there were not procedural errors and that the original decision was not wrong. We were satisfied that the Respondent had proved that Mrs Pennington’s protected disclosure had no influence whatsoever upon her. This allegation was dismissed. Overall conclusion

[645]We were not satisfied that any of the Claimants were subjected to a detriment because they made a protected disclosure. Accordingly the claims of detriment were dismissed.

[646]Further, for the reasons set out above Ms Turner’s claim for constructive dismissal was also dismissed. Time limits

[647]For completeness we addressed the issue of time limits. The claim was initially presented on 9 March 2022. At that time ACAS had not been notified of the disputes. Mrs Walker sent the ACAS certificate to the Tribunal on 31 March 2022 and the claim was accepted on 7 April 2022. This was an error, by the Tribunal, however it was not communicated to the Claimants until 8 June 2022 and they re-presented their claims on 12 June 2022. The Claimant’s sought a reconsideration and the defect was treated as rectified as of 29 June 2022. We accepted that once the Claimants had been told that the claim had been accepted it would not have been reasonably feasible for them to do anything further with the presentation of the claim, until they were told it was rejected on 8 June 2022.

[648]We did not find that a detriment had been caused by a protected disclosure. However on the basis that the claim form had been accepted on 7 April 2022 after the ACAS certificate was sent on 31 March 2022, we made the following findings for any act of detriment before 1 January 2022. All of the Claimants accepted that they knew that they could bring claims in the Employment Tribunal. They all had access to and took union advice before their disciplinary hearings. The Claimants had been supporting each other throughout the proceedings and Mr Adams had previously brought a claim in the Tribunal and supported his son through a claim. Mr Adams knew what the appropriate procedure was. We accepted that from at least the time of the disciplinary outcomes at the end of April 2021, the Claimants knew that they could bring claims in the Tribunal. Mrs Pennington had been taking advice from the CAB from November 2020. The Claimants had access to advice as to how to bring their claims from the trade union.

[649]The Claimants suggested that they did not bring their claims earlier because they were engaged in an internal procedure. This was not a case where the Claimants were ignorant of their rights or that there were time limits to bring a claim. They were aware of their rights and that there were time limits. They had access to legal advice through the disciplinary process. The Claimants worked on the basis that time would not start running until the last event and therefore gambled on the last events being found to be a detriment. If there had been a detriment we would have found that it would have been reasonably feasible for the Claimants to have presented their claims from the outcomes of their disciplinary hearings. Accordingly if the last proven allegation of detriment had been in 2021 it would have been reasonably practicable to have presented the claims in time and in such circumstances the Tribunal would not have had jurisdiction to hear those claims.