Ms M Kulikowska v Omni Support Group Ltd: 1401298/2024 and 1400485/2025
EMPLOYMENT TRIBUNALS
Case No 1401298/2024, 1400485/2025
Between
Ms M KulikowskaClaimantOmni Support Group LtdRespondent
Before
Employment Judge OliverMr K Pal (instructed by counsel) for claimantMr Richards-Jones (instructed by solicitor) for respondentDate 28 August 2025
JUDGMENT
[1]The complaint in case number 1401298/2024 for harassment related to race is well-founded and succeeds.[2]The complaint in case number 1400485/2025 of victimisation is wellfounded and succeeds in relation to the Respondent’s refusal to provide a reference on 10 December 2024. The remaining complaints of victimisation are not well founded and are dismissed.[3]The complaints in case number 1400485/2025 of being subjected to detriment for making a protected disclosure were presented within time, are well-founded and succeed in relation to the Respondent’s refusal to provide a reference on 23 September 2024 and 10 December 2024. The remaining complaint of being subjected to detriment for making a protected disclosure is not well-founded and is dismissed.[4]The Respondent unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and it is just and equitable to increase the compensation payable to the Claimant by 15% in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992.[5]There is no reduction to the compensation payable to the Claimant in case number 1400485/2025 on the basis that she contributed to the detrimental Case number: 1401298/2024 & 1400485/2025 treatment or on the basis that the protected disclosures were not made in good faith. Approved by: JUDGMENT having been given orally at the hearing on 28 August 2025 and written reasons having been requested at the hearing in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:
REASONS
[1]This is a claim for harassment related to race (the first claim), and detriment for making a protected disclosure and victimisation (the second claim).
Issues
[2]There were Case Management Preliminary Hearings on 11 December 2024 (first claim) and 30 April 2024 (second claim). The combined issues were agreed. The issues dealt with in this part of the hearing were as follows (with the remaining remedy issues to be dealt with at a separate remedy hearing):
Issues
[1]Time limits1.1 The second claim form was presented on 31 January 2025. The claimant commenced the Early Conciliation process with ACAS on 5 September 2024 (Day A). The Early Conciliation Certificate was issued on 21 October 2024 (Day B).1.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act or omission to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?1.3 Was the detriment complaint made within the time limit in section 48 of the Employment Rights Act 1996? The Tribunal will decide:1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act complained of?1.3.2 If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?1.3.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?1.3.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?[2]Harassment related to race (Equality Act 2010 s. 26)2.1 On 3 January 2024, did the respondent’s Managing Director Mr Tomos Jarvis tell the Claimant that he would not offer the role to an African applicant, and that this was based upon his view that the appointment could cause potential problems in respect of allegations of racism?2.2 If so, was that unwanted conduct?2.3 Did it relate to the protected characteristic of race?2.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?2.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.[3]Protected disclosure (‘whistle blowing’)3.1 Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:3.1.1 What did the Claimant say or write? When? To whom? The Claimant says she made disclosures on these occasions:3.1.1.19 January 2024 in writing (this is admitted)3.1.1.229 January 2024 in writing (this is admitted)3.1.2 Were the disclosures of ‘information’?3.1.3 Did the claimant believe the disclosure of information was made in the public interest? The respondent puts the claimant to proof of this aspect.3.1.4 Was that belief reasonable? The respondent denies this aspect.3.1.5 Did the claimant believe it tended to show that:3.1.5.1 a criminal offence had been, was being or was likely to be committed;3.1.5.2 a person had failed, was failing or was likely to fail to comply with any legal obligation;3.1.5.3 the health or safety of any individual had been, was being or was likely to be endangered; The respondent puts the claimant to proof of this element of the claims.3.1.6 Was that belief reasonable? The respondent denies this.3.2 If the Claimant made a qualifying disclosure, was a protected disclosure because it was made to the Claimant’s employer? This is admitted.[4]Detriment (Employment Rights Act 1996 section 47B)4.1 Did the Respondent do the following things: 4.1.1 The respondent failed to provide references to prospective employers on the following dates:4.1.1.1 On 20 March 2024 (Joseph Chamberlain College) – this is admitted;4.1.1.2 On 23 September 2024 (Bristol Resourcing Consultancy Limited) – this is admitted;4.1.1.310 December 2024 (Aster Group) – this admitted.4.2 If so, was it done on the ground that he had made the protected disclosure(s) set out above? The respondent asserts that the reasons were as follows:4.2.1 Joseph Chamberlain – the request was not received by the respondent.4.2.2 The remaining reference requests - the respondent asserts that it was under no obligation to provide them; the respondent made a conscious decision not to provide references because of the unfounded allegations of race discrimination made against Mr Jarvis in 2024 (the allegations in the First Claim) (and the conduct of the Claimant during employment – added at start of hearing on the basis of the Respondent’s witness statement).[5]Victimisation (Equality Act 2010 s. 27)5.1 Did the Claimant do a protected act as follows: 5.1.1 Issue Tribunal proceedings complaining of race discrimination (claim 1401298/24) - this is admitted.5.2 Did the Respondent do the following things: 5.2.1 The respondent failed to provide references to prospective employers on the following dates:5.2.1.1 On 23 September 2024 (made by Bristol Resourcing Consultancy Limited) – this is admitted;5.2.1.210 December 2024 (Aster Group) – this admitted.5.3 By doing so, did the Respondent subject the Claimant to detriment?5.4 If so, was it because the Claimant had done the protected acts? The respondent asserts that the reasons were as follows: 5.4.1 The respondent asserts that it was under no obligation to provide them; the respondent made a conscious decision not to provide references because of the unfounded allegations of race discrimination made against Mr Jarvis in 2024 and the conduct of the Claimant during employment (the allegations in the First Claim but not the fact that the claimant issued Tribunal proceedings in respect of those matters).[6]Remedy Detriment (s. 47B)6.1 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If so, did either party unreasonably fail to comply with it? If so, is it just and equitable to increase or decrease any award payable to the Claimant and, if so, by what proportion up to 25%?6.2 Did the Claimant cause or contribute to the detrimental treatment by their own actions and if so would it be just and equitable to reduce the claimant’s compensation? By what proportion?6.3 Was the protected disclosure made in good faith? If not, is it just and equitable to reduce the claimant’s compensation? By what proportion, up to 25%? Discrimination or victimisation6.4 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If so, did either party unreasonably fail to comply with it? If so, is it just and equitable to increase or decrease any award payable to the Claimant and, if so, by what proportion up to 25%? Evidence 3. There was an agreed bundle of documents. I accepted some additional disclosure during the hearing, in particular information missed from disclosure of a particular document. This was redacted to protect the privacy rights of a young person. 4. There were written witness statements which I took as read. I heard evidence from the Claimant and from Tomas Jarvis, director of the Respondent. There was a written statement from Adrian Anderson, Chief Executive of Make a Difference Provision. I also had oral submissions from both parties. Facts 5. I have considered all of the evidence and submissions, and find the facts necessary to decide the issues in the case. 6. The Respondent is a company, the sole director of which is Tomos Jarvis. The Respondent works for social services, providing care to children. They work with vulnerable children and service users. The Claimant was employed by the Respondent as mentor/support worker and then service lead/manager between 29 June 2022 and 11 June 2024 when she resigned. She was off sick from early January 2024.
Facts
[7]In late September 2022, the Claimant asked Mr Jarvis out on a date, when they were in a car together after the Claimant had accident in pool vehicle. I have seen their exchange of emails afterwards. Mr Jarvis says it made him feel really uncomfortable and uneasy around her, he did not know how to respond, and he wanted to address it more on return to work. The Claimant replied with an apology and said that it was a one time situation and will not happen again. The exchange finishes with Mr Jarvis saying “Honestly it’s cool…You kind of caught me on the spot and I don’t like being put in awkward situations. Anyways, let’s move on from it. It’s fine.” Mr Jarvis gave evidence that this made him feel very uncomfortable at the time. I accept that evidence, which is consistent with his emails straight after the event.[8]In March 2023 a video was posted on the Claimant’s TikTok account “pranking my boss” with a fake contract naming a competitor and saying they were poaching the Respondent’s staff. The Claimant says this was a joint prank with her and two colleagues, Nicky and Danielle. I have seen a message from Mr Jarvis on 31 March 2023 asking her to delete the account, and her reply “sure”.[9]There was also a WhatsApp chat group called “Omni bitches” with the Claimant, Nicky, and Danielle. The Claimant was the administrator of this group.[10]The Respondent says that at least twice the Claimant left keys to the centre where she worked with neighbour, and on a tyre in the car park. I have seen a chain of messages which show the Claimant saying she will leave the keys with a neighbour, and she asks the Respondent to let her know when. This message was not replied to. A later message on a different day says she left them on a particular car tyre. The parties agree this was in February 2024. At this point the Claimant was off sick, which is the reason she needed to return keys but did not wish to see any of her colleagues.[11]In January 2024, the incident occurred which the Claimant says is the basis of her first claim. The Claimant says she was told by Mr Jarvis that he would not offer a particular role to black job applicant. She says it was based on his view that this could cause potential issues in relation to allegations of race discrimination. She says this happened during a team meeting, when children not there, and it was witnessed by Nicky and Danielle. In cross-examination she was unable to recall the detail of when in the day it happened, but she said it was while Mr Jarvis was setting up a projector. Mr Jarvis’s evidence was that this date was the last week before Danielle left the Respondent, and her replacement was due to start the next week.[12]This incident was described in a diary of events the Claimant says she was keeping at the time. “When Danielle leaving role, Mr Jarvis mentioned number of applicants. Says he said he had an applicant who was a women from a country in africa, he knew immediately that he didn't want to hire her, but because he had to prove that he was equal because of the law, he did give her the interview. He said that he knew that he wouldn't give her the job when he heard her accent. He said it was a very thick african accent and he knew he would have problems with the kids being racist so to save himself the hassle of dealing with racism and implementing consequences for the kids he won't hire her. I said to him that it's not okay to see the situation in this way, in fact she should be given the opportunity to work here if she is qualified. she shouldn't be excluded on the basis of her accent. I then went on to say that she probably has a lot of value as being exposed to different cultures is great. He disregarded me and went on to set up the projector.”[13]Mr Jarvis denies this allegation. He says that he did interview an applicant from Nigeria, but did not offer her the role because of her skills, including language skills, proximity to job site, and concerns she would not be able to undertake the role competently. The written evidence about this candidate shows that she applied on 18 Sept 2023. Mr Jarvis says he interviewed her on 19 September.[14]The Claimant gave evidence during the hearing that this happened during a team meeting, when children were not present. Mr Jarvis gave evidence that the team meeting was on 2 January, not 3 January. Late disclosure of an email at the stage of submissions shows Mr Jarvis telling the team there was an inset day on 2 January with no children. The point about the team meeting being on 2 not 3 January was not put to the Claimant in cross-examination. The Claimant’s diary of events says it was on 3rd. On the balance of probability, based on the evidence including the email, I find that the team meeting was on 2 January and not 3 January.[15]This incident was raised during later grievance appeal interviews, as part of wider allegations that the Claimant had been treated unfavourably because she is Polish (which are not pursued in these claims).[16]The Claimant’s initial grievance was about a different issue, and forms the basis of her whistleblowing claim. In October 2023 the Claimant and colleagues started to work with a new young person. The EHCP (education, health and care plan, a document from the local authority setting out their needs) said they had some challenging behaviours. This included unprovoked attacks on staff. I have seen the full unredacted version of the EHCP. It was prepared with evidence from professionals including educational psychology. It says the young person has considerable difficulties regulating emotions and behaviour. They can be verbally abusive, kick and hit things. They have spat, bitten, damaged objects, and been physically violent towards staff. It says that instances of physical violence can appear to come from nowhere, and when very dysregulated they will lash out at anyone who is in close proximity. There had been no actual physical aggression towards staff between May and July 2023.[17]The EHCP says, “Adults working with XXXXX need to have specialist knowledge and skills in working with young people with social and emotional needs and ADHD. Staff are likely to need supervision and ongoing training to support them in their work. All adults working with XXXXX will need to have had training, and be skilled in using, attachment-aware and positive behaviour support approaches including de-escalation strategies, restorative approaches and positive handling”. It goes on to say, “Adults need to be trained in positive behaviour management and safe handling/physical intervention”.[18]The Claimant says that she had not seen another EHCP like this in relation to hitting staff coming out of nowhere, or any other EHCP saying staff needed specific training. Mr Jarvis says that many young people have similar issues, but there was no specific evidence from the Respondent to show that this type of EHCP is usual.[19]By 9 January 2024 the Claimant was off sick. She sent an email setting out her concerns about working with this young person without appropriate training. In response, there is an email from Mr Jarvis raising concerns about the Claimant’s awareness of the behaviour policy and her refusal to work with that young person as she had not had positive handling training although she had participated in “team teach” 2 years before. The Claimant’s email raises specific concerns that the training she had was inappropriate and out of date, and she was not confident in her ability to protect herself or the young people in their care if that young person attacks them. She says that being required to work with a young person who is a threat without necessary training is breach health and safety laws, and the EHCP requires training in positive behaviour management and safe handling/physical intervention.[20]On 15 Dec 2023 the Claimant and other staff had been provided with positive handling training, an in-person practical course on how handle violence from children. The Claimant accepts this was provided by the Respondent, but says it was more than month after the young person had started, and they had been required work without this training until then. The Claimant had previously participated in practical “team teach” training 2022, in a previous role in a children’s home. She also did a theoretical course on “positive handling in schools” in August 2023. I accept the Claimant’s evidence that this is not the same as a practical course. I also accept her evidence that some previous practical techniques been debunked, which is why up to date practical training was needed.[21]The Claimant sent another email on 29 January 2024, in response to enquiries from the Respondent on whether she was able to return to work. “I would like to reiterate that my current condition stems from the last two meetings. In my previous email I mentioned that I feel highly conflicted when executing my job as I feel that what you expect from me isn’t consistent...These feelings were exacerbated when you pressured me to work with a young person who knowingly hurts staff without the appropriate training. When I exercised my right to decline service in fear of my safety and the young people’s in my care, you proceeded to say that I’m negatively affecting the operations of the business as well as breaching my code of conduct.”[22]The Respondent arranged grievance hearing. The Claimant was invited on 29 January, and she said she was not well enough attend on 7 February. The hearing went ahead on 8 February. It was investigated and decided by Mr Jarvis. The hearing also involved and external person, Adrian Anderson, the chief executive of another organisation. Mr Jarvis did not uphold the Claimant’s grievances.[23]On 12 February the Claimant appealed against the grievance outcome. She also sent a separate email with a formal complaint about race discrimination by the Respondent and Mr Jarvis, on the basis she had been treated unfairly compared to other members staff because she is Polish.[24]The grievance was investigated by an independent consultant from Croner. There were investigation meetings with the Claimant and Mr Jarvis. The outcome on 26 March 2024 decided that the grievances were not upheld, except for a finding that it had been unfair for Mr Jarvis to be involved in the grievance hearing as he was implicated, and so he should have made alternative arrangements for it to be heard by impartial chair.[25]The grievance appeal included an investigation about comments made by Mr Jarvis on 3 January about an African job applicant. The Claimant’s version of events is the same as in the diary of events. The notes show she said Nicky was present. The Claimant says she also said that Danielle was present. This is not shown in the notes, although Nicky was given an entirely wrong surname. The automatic transcript of the recording contains many examples of odd words that seem to have been transcribed incorrectly. The Claimant gave clear evidence that she also mentioned Danielle, and this is consistent with comments made during the team meeting. On the balance of probability, I find that the Claimant also said Danielle was a potential witness to the incident.[26]Mr Jarvis’s version of events in the appeal interview was that there was a language barrier with that candidate. They couldn’t understand what each other was saying. There was a risk caused by not being able to understand instructions or things being misinterpreted. The candidate had 30–40% English. Also, they did not have experience working with challenging behaviour. Mr Jarvis provided supporting statements from another investigation into allegations of discrimination against him. This included a statement from Nicky, dated 27 February 2024, which says she had not heard Mr Jarvis be racist or discriminate, and she had witnessed him challenging children who were presenting this behaviour.[27]The grievance appeal outcome made the following overall finding on the allegations of race discrimination – “Given the absence of evidence and the fact that TJ denied that the events happened as described by MK, this point of grievance is found to be unsubstantiated.” It is unclear if person dealing with the appeal interviewed any witnesses to this incident. The report says Nicky had been spoken to, and refers to a transcript in appendix 3, but it seems this has not been disclosed by the Respondent. The investigation findings on the allegations of race discrimination say there were no witnesses.[28]For the grievance about not having the correct training, Mr Jarvis provided some supporting documents to the investigator. These included an extract from the EHCP. This extract includes part of a section that discusses the skills and training needed for staff, but omits the part containing sentence “Adults need to be trained in positive behaviour management and safe handling/physical intervention”. The extract provided to the investigator cuts off very shortly before this sentence.[29]Mr Jarvis gave evidence on two training points. He did provide safe handling/physical intervention training through a positive handling course on 15 December 2023. He did not provide a specific course on positive behaviour management. He says this is not a stand-alone course, but a theme that runs through many of the other courses the Claimant had taken, and thought their work.[30]The Claimant’s evidence raised issues about training because she was afraid for her own safety, and the safety of other children, because of what the EHCP said regarding attacks on staff without an identifiable trigger. She said she did not feel equipped to deal with this, and felt “gaslit” by having her concerns dismissed as nothing. She maintains that it was a reasonable ask for both types of training in the EHCP in case the young person attacked someone. She said she was the safeguarding lead, and that part of her duty of care was to make sure she and other staff were properly equipped in case it happened.[31]The Claimant also raised concerns with the local authority. We have not seen evidence of when or what was said to the local authority, but we have seen an email from the local authority to the Respondent asking for information about actions taken and the outcome of the independent investigation. An attached document titled “events pertaining to the kids” is a version of the Claimant’s diary of events regarding incidents with children, and does not include the alleged incident of harassment on 3 January. The Claimant’s evidence is that this was because she wanted to disclose incidents about vulnerable children to the local authority, and that allegations of race discrimination were a separate internal grievance. We accept this explanation. It is clear that this document relates to incidents regarding children only, and not to wider allegations regarding what happened to the Claimant at work in her full chronology of events.[32]The Claimant remained off sick, and she resigned on 11 June 2024 with 4 weeks’ notice.[33]The Claimant began applying for new roles. Mr Jarvis previously provided a reference for her in April 2023 for an application for a PhD course. We have seen a copy of this reference. It is a very good reference which says the Claimant brought a wealth of expertise and experience, and that she has dedication to her work ethic and self-development.[34]In March 2024, the Claimant applied for a role at Joseph Chamberlain College. We have seen a message from them dated 20 March 2024 saying the reference enquiry has “failed”, normally because the email address was spelt incorrectly or is no longer valid. Mr Jarvis says he never received any reference request from them. I find this was the case - based on Mr Jarvis’s denial, and also based on the communication from the college suggesting the email delivery failed rather than it was not replied to.[35]The Claimant applied to Bristol Resourcing. She was interviewed, and was told the employer refused the reference request on 23 September 2024. The Claimant provided an alternative referee but was told a reference was needed from her previous employer. We have seen an email from Mr Jarvis to them dated 18 September which says, “I am unable to provide a reference for MK at this time.”[36]The Claimant applied to Aster Group, was made an offer, and was told on 10 December 2024 that the employer declined to provide a reference for the last two years. The offer was withdrawn for that reason. We have seen an email from Mr Jarvis dated 4 December 2024 which says, “I am not able to provide a reference for Marta.”[37]Mr Jarvis gave evidence about why he did not provide a reference for the Claimant.[38]First, he said this was because was not obliged to do so.[39]Second, due to “the untrue and vexatious allegations she has made in an attempt to slander me and my company”, he did not feel it was appropriate to provide a reference. This was explored in evidence. Mr Jarvis said the independent investigation (meaning the grievance appeal) had found the allegations unfounded, but the Claimant continued to make the same allegations, leading to the tribunal claims. There was a continuation of the Claimant saying he was racist, and this became a trust and conduct issue. In cross-examination, Mr Jarvis agreed that by December 2024 he knew about the tribunal claim and that this played a role in his decision.[40]Third, due to the Claimant’s behaviour in work. There was a list of incidents – sexual advances in 2022, leaving keys in the car park and with a neighbour, the TikTok video, the WhatsApp group. He also said crashing the pool car – this was in the statement as a separate incident of misconduct. He confirmed at the start of his evidence that the statement was true, but during evidence said this was a mistake and accepted she was not at fault. His explanation was that this happened at the same time as the Claimant asked him on a date. Mr Jarvis accepts there was no disciplinary action for any of these incidents. His explanation for this was that he was letting various disciplinary issues go with the Claimant and other staff, as he did not want to destabilise the team with warnings. He says that he set clear expectations about behaviour at the team meeting on 2 January.[41]Mr Jarvis gave evidence that he also refused references for other staff who committed similar misconduct. He gave an example of another member of staff who had driven a work car while drunk and gone for a sunbed when accompanying a child – this member of staff handed in their notice and was given no reference. I accept this evidence.[42]The Claimant gave evidence that she was told by Danielle that the Respondent did provide a reference for her. Mr Jarvis denied this. In late disclosure at the stage of submissions, the Claimant produced Instagram messages from December 2024 from Danielle saying the Respondent did provide a reference. The Respondent produced emails from May and August 2024 showing the Respondent being asked for a reference which seems not to have been replied to. Based on all the evidence, on the balance of probabilities, I find Mr Jarvis did not respond to the requests for a reference in May and August 2024, but did provide one by December 2024. I see no reason Danielle would tell the Claimant incorrect information about this in the messages I have seen.[43]Also included in the list of reasons was the Claimant’s refusal to work with a specific child despite having worked with children with worse records, and the Claimant denying having necessary training. This was also explored in evidence. Mr Jarvis said the Claimant had the necessary training. He said the Claimant acted unreasonably by saying she needed specific training, particularly on positive behaviour, which is covered in other courses.[44]The Claimant submitted her first claim on 22 May 2024. Mr Jarvis says he did not initially receive it. We have seen an email dated 30 September from the Respondent, querying a letter from the Employment Tribunal stating no response had been received. I accept his evidence that he did not know the actual tribunal claim had been submitted until this date. He was aware of the earlier Acas process, but his evidence is that he thought this was about settlement, not an actual tribunal claim.[45]The Respondent gave different reasons for not providing a reference at different stages in the proceedings. The response to the claim refers to further allegations being sent by the Claimant to the local authority, and says the reason was that the Claimant made slanderous comments towards Mr Jarvis that were not true. There was no mention of other conduct of the Claimant. At the case management hearing, the issues record the reason as unfounded allegations of race discrimination made against Mr Jarvis in 2024. Again, there was no mention of other conduct of the Claimant. The issue of the Claimant’s other conduct appears to have been added in Mr Jarvis’s witness statement. It was allowed to be added to the list of issues at the start of the hearing. At that point, I did not appreciate that it had not been relied on previously.
Applicable law
[46]Time limits – discrimination. Under section 123 of the Equality Act 2010 (“EA”), complaints of victimisation, “may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.” Under section 123(3), conduct extending over a period is to be treated as done at the end of the period.[47]Time limits – detriment for making a protected disclosure. Under section 48(3)(a) of the Employment Rights Act 1996 (“ERA”), a claim for detriment for making a protected disclosure must be made "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". Where an act extends over a period, the date of the act means the last day of that period (section 43(4)(a) ERA).[48]Harassment. Harassment is defined in section 26(1) EA: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.[49]Conduct will be harassment if it was done with the purpose of violating dignity or creating the proscribed environment. Otherwise, the Tribunal must assess whether the conduct had this effect on the claimant. In deciding whether conduct had this effect, the Tribunal must take into account the perception of the claimant (a subjective test), whether it is reasonable for the conduct to have that effect (an objective test), and the other circumstances of the case.[50]Victimisation. Victimisation is defined in section 27 EA: (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.[51]A protected act includes bringing proceedings under the EA, giving evidence or information in connection with proceedings under the EA, doing any other thing for the purposes of or in connection with the EA, or making an allegation (whether or not express) that A or another person has contravened this Act.[52]A victimisation claim does not require a comparator. The claimant must have been subjected to a detriment “because” of the protected act, rather than for another reason, which involves asking why the respondent acted as it did. The claim will be made out If the protected act has a “significant influence” on the relevant conduct (Nagarajan v London Regional Transports [1999] IRLR 572). Significant influence means a more than trivial influence (Igen v Wong [2005] EWCA Civ 142, paragraph 37).[53]Protected disclosures. Sections 43A to 43L of the ERA set out the definition of a protected disclosure. Under section 43B a “qualifying disclosure” means: “any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”[54]A qualifying disclosure requires a disclosure of “information”. In Cavendish Munro Professional Risks Management Ltd v Geduld UKEAT/0195/09, the EAT held that to be protected a disclosure must involve information, and not simply voice a concern or raise an allegation.[55]In accordance with the Court of Appeal decision in Chesterton v Nurmohamed [2017] EWCA Civ 979, the Tribunal must determine whether the worker subjectively believed at the time that the disclosure was in the public interest and, if so, whether that belief was objectively reasonable. The case also provides guidance about how to assess whether a disclosure is reasonably believed to be in the public interest.[56]A qualifying disclosure becomes a protected disclosure if it is made in a way listed in sections 43C to 43H, which includes a disclosure to the person’s employer.[57]Detriment for making a protected disclosure. Under section 47B(1) of the ERA – “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.” The test for whether treatment of a worker by an employer was “on the ground” of a protected disclosure is as set out in NHS Manchester v Fecitt [2012] IRLR 64 (CA). The protected disclosure must “materially influence” the employer’s treatment of the worker, meaning it must have been more than a trivial influence.[58]Under section 49(6A) ERA, where “it appears to the tribunal that the protected disclosure was not made in good faith”, the tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award by no more than 25%.[59]Uplift for failure to follow Acas Code. Under section 207A and Schedule A2 of the Trade Union and Labour Relations (Consolidation) Act 1992, the Tribunal ma, if it considers it just and equitable in all the circumstances, increase or reduce an employee's compensation by up to 25% if either party has unreasonably failed to comply with a relevant code of practice. This includes the Acas Code of Practice on Disciplinary and Grievance Procedures (the “Acas Code”).
Conclusions
[60]My conclusions are as follows, taking the issues in turn.[61]Harassment related to race - On 3 January 2024, did the respondent’s Managing Director Mr Tomos Mr Jarvis tell the Claimant that he would not offer the role to an African applicant, and that this was based upon his view that the appointment could cause potential problems in respect of allegations of racism?[62]The key factual finding is whose version of events to believe. I cannot know for sure. It is a difficult finding because it is essentially one person’s word against another. I am making a finding on the balance of probabilities, based on the evidence available to me. I have thought about this carefully.[63]The Claimant says this incident occurred as in the diary of events. The Respondent says it did not occur at all in January 2024, and suggests the Claimant fabricated the allegation because Mr Jarvis had previously rejected her advances when she asked him on a date in 2022.[64]The Claimant’s version of events is consistent in the diary of events and the grievance appeal investigation. It was raised in the grievance appeal as part of wider allegations of being treated differently because she is Polish. She denied that it had anything to do with being rejected by Mr Jarvis when she asked him on a date. I find it entirely implausible that this caused the Claimant to fabricate the allegations, given the circumstances - the incident happened in September 2022, the grievance was raised in January 2024, and they worked together successfully in between. There was a reason for this issue to be discussed in the team at that point in time, because it was the week Danielle was leaving and a new replacement was due to start. I also note the Claimant named witnesses during the grievance appeal, which is an unlikely thing for her to do if the allegations were fabricated.[65]The Respondent says there was no team meeting on 3 January, but one on 2 January. I have accepted this evidence as already explained. The Respondent argues it is far-fetched that the Claimant would get the date wrong, and says this supports the argument that the allegation was fabricated. The Respondent refers to a supporting statement from Nicky dated 27 February 2024, provided during the grievance appeal, as supporting the Respondent’s case. The Respondent points to the fact that Mr Jarvis supported the Claimant when children were racist to her, which she accepted. The Respondent also makes the point that 50% of the Respondent’s staff at the time were from minority backgrounds, that Mr Jarvis worked with Mr Anderson who is Black, and that he had a relationship with a Black woman.[66]Some evidence does not assist me. Neither party called witnesses to the incident, and both criticised each other for not doing so. I do not draw inferences either way and this does not help me decide the facts of what happened. The grievance appeal outcome also does not assist. The Respondent maintains the allegations were found to be incorrect. But on this issue, the outcome simply says there is an absence of evidence and Mr Jarvis denied it. This is not a positive finding that it did not happen. It appears that either witnesses were not spoken to at the time, or whatever Nicky said has not been disclosed, which again does not help with my decision. There is a written statement from Andrew Anderson. He gives the opinion that the accusation is in stark contrast to the inclusive ethos and supportive workplace environment of the Respondent. He was not called as a witness at the hearing so this was not tested, he was not a witness to the incident, and he was not referred to by the parties during the hearing. I give this very little weight. The Respondent also says the lack of reference to the incident in the information provided to the local authority indicates the incident was fabricated later, but I have accepted the Claimant’s evidence that she provided a different document to the local authority at the time which was just about incidents involving children.[67]I have some concerns about the Respondent’s credibility and how the case was prepared. This is relevant as it is indicative of the overall approach to the Claimant’s allegations. I am concerned that the Respondent did not comply with all obligations of disclosure. The full EHCP report, which was clearly relevant to the Claimant’s whistleblowing case, was not disclosed until part way through the hearing. A misleading extract only was provided during the grievance appeal investigation. The crashing of the pool car was given as a reason not to provide a reference in a statement sworn to be true, and was only withdrawn during Mr Jarvis’s evidence. There was a changing version of events about why references were not provided during the tribunal proceedings. These matters are not directly relevant to the incident of harassment, but are relevant to the overall credibility of the Respondent’s evidence. There is the potentially relevant appendix to the grievance appeal, an interview with the witness Nicky, which was not disclosed at any point.[68]I have considered all of the above matters and find, on the balance of probabilities, that this incident did happen as described by the Claimant. This is with the caveat that it was on 2 January, not 3 January as noted in the diary of events. This fits with the Claimant’s evidence that at the team meeting no children were present. I do not find the mistake regarding the date sufficient to find the entire allegation was fabricated.[69]I note the background evidence that Mr Jarvis does not generally behave in a racist manner, and that he supported the Claimant in the past. This incident was more subtle than refusing to work with someone because they are Black. It was based on concerns about someone having a strong African accent, and that this could cause problems with racism from children which would need to be dealt with. On Mr Jarvis’s own case, he had concerns regarding the candidate’s language skills.[70]The remainder of the harassment test is not really in dispute.[71]If so, was that unwanted conduct? It is clear from the evidence that this was unwanted by the Claimant, and I note what she said about the fact it caused her particular concern as she is Polish herself.[72]Did it relate to the protected characteristic of race? It did not relate to the Claimant’s characteristic, but it did relate to the race of the job candidate being spoken about.[73]Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? I do not find it was said with this purpose.[74]If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. I find it did have this effect. Again, I note the particular effect on the Claimant as she Polish and had experienced some racism from children herself.[75]Therefore, the harassment claim in first claim succeeds.[76]Time limits. For the second claim, I start with the issue of time limits. This relates to the refusal to provide a reference on 23 September 2024. The parties accept that the refusal on 10 December 2024 was within time on the basis the second claim was presented on 31 January 2025. I have not looked at the earlier alleged refusal of a reference as I have found the reference request was not received by the Respondent.[77]The second claim form was presented on 31 January 2025. The claimant commenced the Early Conciliation process with ACAS on 5 September 2024 (Day A). The Early Conciliation Certificate was issued on 21 October 2024 (Day B). Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010?a. Was the claim made to the Tribunal within three months (plus early conciliation extension)? The claim relating to 23 September 2024 was not, this was during the early conciliation period which only stops the clock from that point, and the parties agree this is potentially out of time.b. If not, was there conduct extending over a period? If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? I find there was, as the two refusals to provide a reference were conduct extending over a period within the relevant test and caselaw. The Respondent argues it was the application of an individual policy each time. I do not agree. Mr Jarvis’s evidence was clear that he had a practice of not providing reference for the Claimant each time one was asked for. The claim was made within three months of second refusal.[78]Was the detriment complaint made within the time limit in section 48 of the Employment Rights Act 1996?a. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act complained of? As above, the claim relating to 23 September 2024 was not.b. If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one? I make the same finding as test for victimisation is very similar. I am satisfied that the refusal to provide both references was part of a series of similar acts, the second of which within time.[79]Protected disclosure. Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? What did the Claimant say or write? When? To whom? The Claimant says she made disclosures on these occasions: 9 January 2024 in writing (this is admitted); 29 January 2024 in writing (this is admitted).[80]Were the disclosures of ‘information’? These were disclosures of information in grievances, and not simply allegations – this was not really disputed by the Respondent.[81]Did the claimant believe the disclosure of information was made in the public interest? I note that the way the Claimant put her grievances was based on concerns about safety for herself, other staff and other young people in the Respondent’s care. I accept this is an issue in the public interest, and it was not simply about the Claimant herself - particularly in relation to the risk to other children placed with the Respondent by local authority.[82]Was that belief reasonable? I find that it was, based on the information in EHCP. This report indicated that the young person could attack others, and it was both subjectively and objectively reasonable in the circumstances to believe that disclosures about the need for proper training to prevent this were in public interest.[83]Did the claimant believe it tended to show that: the health or safety of any individual had been, was being or was likely to be endangered? I find that the Claimant did believe this. It was clearly shown by the content of her initial written grievance, which specifically raised the issue of health and safety. I have also taken into account the Claimant’s evidence about the content of the EHCP, and her concerns about her legal duties as safeguarding lead.[84]Was that belief reasonable? I have considered this carefully. Mr Jarvis says the Claimant was very experienced, she already had the skills needed, and she had been on lots of relevant courses. This is the basis of his view that it was unreasonable for her to hold this belief.[85]I note that the Claimant was provided with one of the courses referred to in the EHCP in December 2023. But there was a period of time working with the young person before this. I have looked at the content of the grievance, and the second email is a clear complaint about “pressured me to work with a young person who knowingly hurts staff without the appropriate training”. This applied to the positive handling course as well, for the period of time before it was provided. The EHCP states that adults need to be trained in positive behaviour management and safe handling/physical intervention. I accept the Claimant’s evidence that she felt previous training was outdated and not sufficient. I find it reasonable that the Claimant held the belief that there was a potential danger to health and safety for her and other staff working with this young person before being trained in this way, in circumstances where the EHCP made clear the young person might attack unprovoked and said this training was needed.[86]Regarding positive behaviour management, I do accept Mr Jarvis’s evidence that these skills are covered in lots of other courses and are part of what staff do day to day. I am not deciding whether the Claimant should have been sent on a specific course in this area. However, I do not accept that this necessarily means it was unreasonable for the Claimant to take the view that staff needed further training on this issue, when the need for this training was specifically stated in the EHCP.[87]I am concerned that it was put to the Claimant in cross-examination that the EHCP does not refer to specific training courses, when the full document was not disclosed and a key sentence was missing from the extract in the bundle as provided to the grievance appeal investigation. This suggests the Respondent either did not understand what the Claimant was saying, or was being deliberately misleading during both the grievance appeal and the Employment Tribunal. The Respondent seems to have played down the Claimant’s concerns.[88]The Claimant’s evidence is clear about why she felt she and others were at risk in light of the EHCP and that all of the training mentioned was needed. I find this belief reasonable in all the circumstances. It was a genuine belief of hers. I also find it reasonable at the time she submitted the grievances, in light of the information she had at the time from the EHCP.[89]If the Claimant made a qualifying disclosure, was a protected disclosure because it was made to the Claimant’s employer? This is admitted.[90]I therefore find that the Claimant did make a protected disclosure.[91]Detriment for making a protected disclosure. Did the Respondent do the following things: The respondent failed to provide references to prospective employers on the following dates: On 20 March 2024 (Joseph Chamberlain College) – this is admitted; On 23 September 2024 (Bristol Resourcing Consultancy Limited) – this is admitted; 10 December 2024 (Aster Group) – this admitted.[92]If so, was it done on the ground that she had made the protected disclosure(s) set out above? The respondent asserts that the reasons were as follows:[93]Joseph Chamberlain – the request was not received by the respondent. I accept this for the reasons explained above.[94]The remaining reference requests - the respondent asserts that it was under no obligation to provide them; the respondent made a conscious decision not to provide references because of the unfounded allegations of race discrimination made against Mr Jarvis in 2024 (the allegations in the First Claim) (and the conduct of the Claimant during employment – added at start of hearing on the basis of the Respondent’s witness statement). As explored in the facts, the Respondent relies on a variety of reasons. It is enough that the protected disclosures “materially influenced” the decision, meaning being a more than trivial influence.[95]One of the reasons relied on by the Respondent is the Claimant’s refusal to work with specific child despite having worked with children with worse records, and the Claimant denying having necessary training. I agree with the Claimant’s submission that this is in effect a reason based on the fact of the protected disclosures. The Respondent’s case was based on the Claimant’s grievance being vexatious and unfounded, and the Claimant not having reasonable belief in what she was raising. I have found the Claimant did have a reasonable belief and so made protected disclosure. Her refusal to work with a specific child and denial of having the necessary training is essentially what her grievance, and so her protected disclosure, was about. The references were refused because of this – it was a more than trivial influence on the decision.[96]I therefore find that these two references were refused on the ground the Claimant had made the protected disclosure.[97]Victimisation. Did the Claimant do a protected act as follows: Issue Tribunal proceedings complaining of race discrimination (claim 1401298/24) - this is admitted.[98]Did the Respondent do the following things: The respondent failed to provide references to prospective employers on the following dates: On 23 September 2024 (made by Bristol Resourcing Consultancy Limited) – this is admitted; on 10 December 2024 (Aster Group) – this admitted.[99]By doing so, did the Respondent subject the Claimant to detriment? It is clearly a detriment to not be provided with a reference by your employer or ex-employer.[100]If so, was it because the Claimant had done the protected acts? The respondent asserts that the reasons were as follows: The respondent asserts that it was under no obligation to provide them; the respondent made a conscious decision not to provide references because of the unfounded allegations of race discrimination made against Mr Jarvis in 2024 and the conduct of the Claimant during employment (the allegations in the First Claim but not the fact that the claimant issued Tribunal proceedings in respect of those matters).[101]For the reference on 23 September 2024, I find this was not refused because the Claimant had issued tribunal proceedings. The proceedings had been issued, but I accept the Respondent’s evidence that they did not know about the claim until 30 September. I accept that Mr Jarvis did not understand that Acas early conciliation necessarily meant there would be a tribunal claim. In any case, the Claimant’s claim is put on that basis that she was victimised because she had issued tribunal proceedings, not on the basis that the Respondent thought she might do so.[102]For the reference on 10 Dec 2024, I find this was refused because the Claimant had issued tribunal proceedings. It is a similar test to whistleblowing – the protected act needs to have a significant influence on the decision, meaning more than trivial. Mr Jarvis’s own evidence indicated that the ongoing tribunal proceedings were part of the reason not to give a reference. He alleges that the first claim is vexatious and unfounded, but I have found on balance that the incident of harassment did happen as described by the Claimant. A key point is that, in cross-examination, Mr Jarvis agreed that by December 2024 he know about the tribunal claim and this played a role in his decision. This is sufficient to meet the test of a more than trivial influence on the decision not to give this reference.[103]I therefore find that the refusal of the reference on 10 December 2024 was an act of victimisation.[104]Acas Code. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If so, did either party unreasonably fail to comply with it? If so, is it just and equitable to increase or decrease any award payable to the Claimant and, if so, by what proportion up to 25%?[105]This did apply to the grievance investigation. It is a clear breach of the Code that the person the grievance was about, Mr Jarvis, investigated it himself. Paragraph 32 states that a grievance should be raised with a manager, not the subject of the grievance. There was no hearing with the Claimant as she was off sick, which is contrary to paragraph 33. I take the point that the Respondent is a small company, but it was able to source an external party for the appeal and failed to consider alternatives for the original grievance hearing. The grievance appeal also had some flaws, including a seeming failure to contact witnesses, but it was conducted by an independent external person and the Claimant had a full hearing. The failures were unreasonable, but it was not an entirely flawed process. The Claimant argues for a 25% uplift. She was denied two impartial stages with a hearing. In all the circumstances, taking into account the size of the Respondent, I apply an uplift of 15% as just and equitable.[106]Did the Claimant cause or contribute to the detrimental treatment by their own actions and if so, would it be just and equitable to reduce the Claimant’s compensation? By what proportion? The allegations regarding the Claimant’s conduct are relevant here. The Respondent now puts this conduct forward as part of the reason for not providing a reference.[107]I accept that the conduct now relied on did take place. I take the point that some of it was potentially serious, taking into account the Claimant’s position as a manager. I do not accept that these were the real reasons for refusing to provide a reference. I note that another employee was not given a reference, and the allegations regarding them were clearly more serious. A reference was provided after the Claimant asked Mr Jarvis on a date, so that cannot be the reason. Danielle had a reference in December 2024 despite involvement in some of the same incidents. Most importantly, the conduct was not relied on until the witness statement - the story changed from the ET3 and the case management hearing. In all circumstances, I do not accept that the allegations of conduct were sufficiently part of the real reason for refusal to provide references to make it just and equitable to reduce compensation.[108]Was the protected disclosure made in good faith? If not, is it just and equitable to reduce the Claimant’s compensation? By what proportion, up to 25%? It is clear from the factual findings that I find the protected disclosure was made in good faith. The Respondent argued these were simply vexatious complaints and referred me to case law on this, but I do not agree. I apply no reduction to compensation for this reason.
Conclusions
[1]The Respondent applies on the basis that reconsideration is necessary in the interests of justice, because new evidence had some to light since the hearing.[2]The principle of finality in litigation is important. A losing party generally cannot produce new evidence after a decision has been given by the Tribunal and ask for that decision to be changed. There are limited circumstances where it would be in the interests of justice to allow this, following the principles set out in Ladd v Marshall [1954] 1 WLR 1489:a. First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the hearing.b. Secondly, the evidence must be such that it would “probably” have an important influence on the result of the case.c. Thirdly, the evidence must be apparently credible.[3]The Respondent says that the Claimant’s case was unclear until witness statement were exchanged (6 working days before the hearing), or on some points until the hearing itself.[4]The Respondent seeks to out forward four items of new evidence. I have considered each in turn, applying the test in Ladd v Marshall and the overriding objective.[5]A witness statement from Nicky Jayne relating to the allegation of harassment. The Respondent says this confirms she did not witness the incident of harassment as alleged by the Claimant. I do not consider that there is any reasonable prospect of this leading to the original decision being varied or revoked for the following reasons.a. The Respondent says that only “Nicky Antonio” was named in the Claimant’s statement, and only corrected on the morning of the hearing. However, the Respondent was fully aware of which “Nicky” was being referred to. A supportive statement from her was provided by Mr Jarvis during the grievance investigation and relied on at the hearing (bundle page 452), and she was also named during the grievance appeal investigation as a witness (bundle page 205). The Claimant worked in a very small team and the Respondent could not reasonably have been in doubt as to who was referred to, even if the wrong surname was used. The Respondent could with reasonable diligence have obtained this evidence and called Nicky Jayne as a witness at the hearing.b. The Respondent also says that Ms Jayne was not interviewed as part of the grievance process, and so the grievance appeal report should not have said there were meeting notes with her. The Tribunal therefore made an unjustified assertion that the transcripts were not disclosed by the Respondent. Again, the Respondent could with reasonable diligence have obtained this evidence for use at the hearing, as this was a report compiled on their behalf. In addition, it is not probable that it would have had an important influence on the result of the case. The failure to disclose this interview was referred to in paragraph 67 of the written reasons as relevant to the Respondent’s credibility. However, it was only one of a number of credibility issues listed in that paragraph, and the removal of this one item would not influence the result of the case.[6]A witness statement from Danielle Brock relating to the allegation of harassment. I do not consider that there is any reasonable prospect of this leading to the original decision being varied or revoked for the following reasons. The Respondent says it was not clear the Claimant was asserting Ms Brock was a witness to the incident in January 2024 until she gave evidence. In paragraph 25 of the written reasons, I address uncertainty about whether Ms Brock was named to the grievance investigator by the Claimant and find on the balance of probability that she was, which indicates that the Respondent could with reasonable diligence have obtained this evidence. The Respondent would have been aware that Ms Brock might have been present due to the small size of the team, and the discussion was about her replacement. I do not agree with the Respondent’s suggestion that this was the Claimant’s fact to assert – the Respondent was aware of the allegation and could have called witnesses at the hearing. In any event, it is not probable that this evidence would have had an important influence on the result of the case. She makes a brief statement that she did not witness a racist comment. This does not prove that the comment did not happen. Ms Brock’s written statement makes it clear that she does not wish to be involved further in the proceedings, which indicates she would not attend a hearing to be crossexamined. This means she could not be asked further about this statement, and her evidence could be given only limited weight.[7]Witness statement from Ms Brock relating to being given a reference by the Respondent. I do not consider that there is any reasonable prospect of this leading to the original decision being varied or revoked for the following reasons.a. The Respondent says this relates to evidence submitted from the Claimant on the final day of the hearing - a message from Ms Brock to the Claimant stating that she obtained a reference from Mr Jarvis. I agree that this specific item of evidence was presented very late. However, it is not probable that this evidence would have had an important influence on the result of the case. I did find that Mr Jarvis provided a reference for Ms Brock (paragraph 42 of the written reasons), but this is actually corroborated by Ms Brock’s statement which says she was told a verbal reference had been given.b. The Respondent is now seeking to argue that there was a consistent policy of not providing written references for staff. This was not the Respondent’s case at the hearing. In paragraphs 38 to 41 of the written reasons I discuss the variety of reasons given by the Respondent for not providing a written reference for the Claimant, none of which is a blanket policy of not giving written references. Although the response to the claim says the Respondent is not under an obligation to give references, it goes on to give reasoning for this in the Claimant’s case. I also note that Mr Jarvis had previously provided a written reference for the Claimant (bundle page 305). The Respondent cannot seek to present new evidence from either Ms Brock or Ms Jayne to support a case that was not relied on at the hearing.[8]Witness statement from Adrian Anderson relating to the Claimant’s suitability to deal with the child that was the subject of the relevant EHCP. I do not consider that there is any reasonable prospect of this leading to the original decision being varied or revoked for the following reasons. The Respondent says this will show that the Claimant did not have a reasonable belief that the health and safety of an individual was likely to be endangered. I do not yet have a copy of this statement. However, I do not need to see it in order to find that the Respondent could with reasonable diligence have obtained this evidence. Mr Anderson provided a written statement for the hearing relating to the allegation of harassment. The Respondent was aware of that the Claimant’s whistleblowing case was based on lack of training and concerns about safety when working with a particular young person (which was part of her grievance and appeal), and has given no explanation for why this evidence could not have been included in Mr Anderson’s statement for the hearing.[9]Examples of EHCP reports relating to children with similar dangers to Child X that the Claimant worked with. I do not consider that there is any reasonable prospect of this leading to the original decision being varied or revoked for the following reasons. As with the statement from Mr Anderson, this is put forward to show a lack of reasonable belief. This could have been obtained with reasonable diligence for the hearing, and the Respondent has given no explanation for why this was not done.[10]I therefore find that none of the items of new evidence meet the test in Ladd v Marshall. I have also considered the overriding objective, and this does not alter my decision. The test in Ladd v Marshall remains the primary consideration, and the Respondent has given no reasons why any of the elements of the overriding objective would lead to a different result.[11]This leads me to the overall decision that there is no reasonable prospect of the original decision being varied or revoked. The Respondent is unhappy with the Tribunal’s decision and is now seeking to present new evidence that could have been obtained for the original hearing. This would clearly not be in accordance with the interests of justice, as it would effectively be giving the Respondent a second chance to defend a case that has already been decided. It would also not be in accordance with the public interest in finality of litigation. These is not good grounds for reconsideration of the decision.