Ms L A Dymond v I - Grow Care and Support Ltd: 1401588/2024

EMPLOYMENT TRIBUNALS

Case No 1401588/2024

Between

Mrs S. Davenport (Mother)Claimant

Miss J. Veimou (Consultant)Respondent

Before

Employment Judge Smail

Date 5 September 2025

JUDGMENT

[1]On 21 February 2024 the Respondent failed to make the reasonable adjustment of informing the Claimant what the subject matter was of the investigation meeting on 23 February 2024.

[2]Save as aforesaid, the Claimant’s claims fail.

[3]The Respondent must pay £3,000 injury to feelings plus £360 interest making a total of £3,360. That sum must be paid within 14 days. Written Reasons have been requested and will follow.

REASONS

[1]On 5 September 2025, I made the following Judgment:

[1]On 21 February 2024 the Respondent failed to make the reasonable adjustment of informing the Claimant what the subject matter was of the investigation meeting on 23 February 2024. Save as aforesaid, the Claimant’s claims fail.

[3]The Respondent must pay £3,000 injury to feelings plus £360 interest making a total of £3,360. That sum must be paid within 14 days. THE ISSUES 2. These were set out at a Preliminary Hearing before Employment Judge Volkmer on 12 February 2025.

[1]Time limits 1.1 The Respondent accepts that the claims are in time.

[2]Wrongful dismissal; notice pay2.1 What was the Claimant’s notice period?

2.2 Was the Claimant paid for that notice period?

2.3 If not, was the Respondent in breach of contract?

[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:3.1.1.1 sent a WhatsApp in the group chat including all the managers, including Vicky [surname unknown] in which she raised breach of privacy in relation to her pregnancy information on 21-22 February 2024; and

3.1.1.2 around the end January 2024 the Claimant rang Liz Appleby saying that Chrissie [surname] had left a service user’s property in an unfit state.

3.1.2 Were the discloses of ‘information’?

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

3.1.4 Was that belief reasonable?

3.1.5 Did she believe it tended to show that:3.1.5.1 a person had failed, was failing or was likely to fail to comply with any legal obligation (relating to data protection);

3.1.5.2 the health or safety of any individual had been, was being or was likely to be endangered (relating to the service users).

3.1.6 Was that belief reasonable?

3.2 If the Claimant made a qualifying disclosure, was a protected disclosure because it was made to the Claimant’s employer?

[4]Detriment (Employment Rights Act 1996 section 47B)4.1 Did the Respondent do the following things:4.1.1 raise an allegation of misconduct against the Claimant (Chrissie [surname unknown], about whom the Claimant had raised an issue then in retaliation alleged that the Claimant had stolen £10 from a service user) on 4 – 12 February 2024;

4.1.2 moving the Claimant away from the house in which she had previously been told that she would be made House Manager on 21 February 2024.

4.2 By doing so, did it subject the Claimant to detriment?

4.3 If so, was it done on the ground that he had made the protected disclosure(s) set out above?

[5]Pregnancy and Maternity Discrimination (Equality Act 2010 s. 18)5.1 Did the Respondent treat the Claimant unfavourably by doing the following things:5.1.1 fail to give the Claimant the promotion to House Manager she had been told she would get on 12 January 2024;

5.1.2 inform the Claimant that the Respondent would struggle to pay her maternity pay at the beginning of February 2024;

5.1.3 telling the Claimant she should not have more than a month of maternity leave at the beginning of February 2024;

5.1.4 not give the Claimant her contracted 39 hours of work, or 39 hours’ pay after returning from sick leave on 3 January 2024;

5.1.5 when the Claimant raised her hours in a phonecall in early February 2024, Neil Hunt shouted at her and said that she was lucky to even have a job;

5.1.6 put the Claimant on additional training courses which she had already completed after returning from sick leave on 3 January 2024;

5.1.7 gave the Claimant shadow shifts instead of substantive shifts on 26 February 2024;

5.1.8 fail to maintain confidentiality in relation to information regarding the Claimant’s pregnancy on 22 February 2024;

5.1.9 in or around the end of March 2024 Liz Appleby telling the Claimant that if she took time off for ante-natal appointments, she would not be coming back on 21 February 2024;

5.1.10 dismiss the Claimant on 9 March 2024.

5.2 Did the unfavourable treatment take place in a protected period (23 December 2023 until July 2025)?

5.3 If not did it implement a decision taken in the protected period?

5.4 Was the unfavourable treatment because of the pregnancy?

5.5 Was the unfavourable treatment because of illness suffered as a result of the pregnancy? Alternatively

5.6 Was the unfavourable treatment because the Claimant was exercising or seeking to exercise, or had exercised or sought to exercise, the right to ordinary or additional maternity leave?

[6]Disability 6.1 This has now been resolved as a matter of common ground. The Respondent knew only that the Claimant had a bi-polar condition from 22 December 2023. That condition amounted to a disability. They were not on notice, nor should they have been, of any other disability.

[7]Discrimination arising from disability (Equality Act 2010 section 15)7.1 Did the Respondent treat the Claimant unfavourably by:7.1.1 dismissing the Claimant on 9 March 2024;

7.1.2 moved the Claimant away from her usual service user to three different service users and scheduled the Claimant for five 24 hour shifts in a week in order to push the Claimant out on 26 February 2024.

7.2 Did the following things arise in consequence of the Claimant’s disability? The Claimant’s case is that her absence and her need/request for reasonable adjustments arose out of disability.

7.3 Was the unfavourable treatment because of any of those things?

7.4 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were:7.4.1 Protection of service users;

7.4.2 Recruitment and retention of staff.

7.5 The Tribunal will decide in particular:7.5.1 Was the treatment an appropriate and reasonably necessary way to achieve those aims;

7.5.2 Could something less discriminatory have been done instead;

7.5.3 How should the needs of the Claimant and the Respondent be balanced?

7.6 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?

[8]Reasonable Adjustments (Equality Act 2010 ss. 20 & 21)8.1 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?

8.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs:8.2.1 a requirement to work 24 hour shifts;

8.2.2 a requirement to return to full duties on return from sick leave;

8.2.3 a varied schedule with the Claimant working different days;

8.2.4 not informing employees in advance regarding disciplinary investigation meetings.

8.3 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that8.3.1 no breaks/ lack of sleep makes the Claimant’s bipolar worse (8.2.1);

8.3.2 the Claimant needs more time to adjust to situations and this creates sensory overload if she is out of her routine (autism, sensory overload) (8.2.2, 8.2.3 and 8.2.4);

8.3.3 prolonged exposure to a service user with schizophrenia, suffering from hallucinations was triggering the Claimant’s bipolar (8.2.2)

8.4 Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?

8.5 What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests:8.5.1 allowing the Claimant scheduled breaks during her shifts;

8.5.2 requesting that the service users’ family do not contact the service user after 7pm unless the matter was urgent (as this agitated the service user and meant the Claimant could not get enough sleep);

8.5.3 provide a phased return to duties;

8.5.4 providing a regular schedule;

8.5.5 telling the Claimant in advance what the meeting on 23 February 2024 was about;

8.5.6 providing an agenda for the meeting 23 February 2024.

8.6 Was it reasonable for the Respondent to have to take those steps and when?

8.7 Did the Respondent fail to take those steps?

[9]Harassment related to disability (Equality Act 2010 s. 26)9.1 Did the Respondent do the following things:9.1.1 on 23 February 2024 Liz Appleby said to the Claimant in relation to the Claimant’s request that she was not called after 7pm unless it was urgent (which the Claimant says was a request related to her disability):9.1.1.1 “who you think you are?”;

9.1.1.2 “Your needs do not come before the service users as the service users are our priority”;

9.1.1.3 “your problems are not our problems”.

9.1.2 moved the Claimant away from her usual service user to three different service users and scheduled the Claimant for five 24 hour shifts in a week in order to push the Claimant out on 21 February 2024.

9.2 If so, was that unwanted conduct?

9.3 Did it relate to the Claimant’s protected characteristic, namely disability?

9.4 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?

9.5 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. THE LAW Public interest disclosure 3. By s.43A of the Employment Rights Act 1996 a protected disclosure means a qualifying disclosure as defined by the Act. By s.43B(1) 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. 4. By section 47B of the ERA 1996 an employee has the right not to be subjected to any detriment done by an employer on the ground that the employee has made a protected disclosure. Pregnancy and Maternity Discrimination 5. By Section 18(2) of the Equality Act 2010 a person discriminates against a woman if in the protected period in relation to a pregnancy of hers s/he treats her unfavourably: (a) Because of the pregnancy or (b) Because of illness suffered by her as a result of it. 6. By Section 18(6) the protected period in relation to a woman’s pregnancy begins when the pregnancy begins and ends - (a) if she has the right of ordinary and additional maternity leave at the end of the additional maternity leave period or if earlier when she returns to work after the pregnancy. 7. In respect of the allegations pursued, the Claimant was within the protected period on the facts of this case. Disability Discrimination 8. Discrimination arising from disability is provided for under Section 15 of the Equality Act 2010. That provides at subsection (1) - A person A discriminates against a disabled person B if (a) A treats B unfavourably because of something arising in consequence of B’s disability and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. 9. The duty to make reasonable adjustments is set out in sections 20 – 21 of the Equality Act 2010, and in Schedule 8. Section 21 establishes that a failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. Section 20 sets out the requirements. Under s20 (3), the first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

THE LAW

[10]Harassment is defined by section 26 of the 2010 Act. An employer harasses an employee if the employer engages in unwanted conduct related to a relevant protected characteristic, and that conduct has the purpose or effect of violating the employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee. In deciding whether conduct has that effect, each of the following must be taken into account — (a)the perception of the employee; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect. Burden of Proof

[11]Burden of proof under the Equality Act 2010 is covered by section 136. In effect, once the Claimant establishes a prima facie case of discrimination, the burden transfers to the employer to show that discrimination has played no role in its decision-making whatsoever. If the employer does not discharge that burden, the Tribunal must find discrimination. FINDINGS OF FACT ON

THE ISSUES

[12]The Claimant was employed by the Respondent between 24 September 2023 and 8 March 2024. She was a care support worker. She had a probationary period of 6 months. Her employment was terminated by 1 week’s notice at the end of her probationary period. Her contractual hours were 37.5 hours a week.

[13]The Claimant disclosed pregnancy on 24 January 2024. A little girl called Adeline was born after the Claimant left.

[14]The Claimant did not disclose mental impairments in her job application despite having had the opportunity to do so. She declared a bi-polar condition on 22 December 2023. There are other mental impairments, but it is common ground that it was only bi-polar that the Respondent had knowledge of, actual or constructive. Protected Disclosure

[15]The Claimant did write a WhatsApp message to the carer’s group for service user AG on 21 February 2024 to the effect that her private life should not be talked about in front of the service user and fellow carers. On the 22 February 2024 the Claimant clarified that this included matters relating to her pregnancy.

[16]Whilst the Claimant raised important matters, she was not making a protected disclosure because she did not believe, and could not do so reasonably, that she was making the disclosure in the public interest. On the contrary, it was a private matter; her very point.

[17]It is likely that around the end of January 2024 the Claimant rang Liz Appleby saying that colleague Chrissie had left a service user’s property in an unfit state. She did not and could not reasonably believe that she was invoking the public interest, however. It was an operational matter about the day-to-day care of the service user. Accordingly, that was not a protected disclosure.

[18]In any event, the Claimant was not subject to detriments because of raising these matters even if they had been protected disclosures (which they were not).

[19]Raising those matters did not explain why questions were being asked about the accounting for £10 cash given to the service user. There was no accusation of theft; however, an accounting matter needed clarifying and was resolved.

[20]The Claimant was moved away from AG’s house not because of raising these matters but because she had been the subject of a complaint from AG’s sister about the Claimant’s reaction to the timing of phone calls made by AG’s sister to AG. The sister is a nurse who works shifts. AG requires a daily phone conversation with her sister. The sister can only ring in the evenings on occasions as her shift allows. The Claimant had suggested this was too late as the service user and herself had to go to bed.

[21]There was discussion that the Claimant might one day be lead carer in AG’s house. That was not a contractual promise because the Claimant was still in her probationary period. Events took over and that notion no longer was relevant.

[22]The Claimant was dismissed upon Mr Hunt’s instructions on 1 March 2024 because of the Claimant’s reaction to the compliant from AG’s sister, referred to above. There was an investigation meeting on 23 February 2024. The Claimant, unwisely, described the sister as ‘an Ignorant Bitch and a narcissist and who was jealous’ of her. The Claimant also stated in that meeting that she did not want to go to the service user’s AG again. In Tribunal the Claimant suggested that the minutes were inaccurate and that she never said that she did not want to return to AG. I find that the investigation meeting minutes are broadly accurate. I accept the evidence of Liz Appleby and Ingrid Bottrell in this regard. I reject the evidence of the Claimant. Because of her reaction to the sister’s complaint, Mr Hunt, having taken advice from Peninsula HR support, concluded that the Claimant did not match the requirements the Respondent had for support workers. The Claimant had sought to be too controlling of the service user. Support is not control, he reasoned. Her probation, therefore, was failed. It was the Claimant’s reaction to the sister’s complaint that was the reason.

[23]The protected disclosure claims fail. Discrimination Arising from Disability

[24]The reason for the dismissal and moving her from AG’s house was not the Claimant’s absences or any request for reasonable adjustments. The reason was the sister’s complaint and the Claimant’s reaction to it displayed in the investigation meeting.

[25]Those claims also fail. Reasonable Adjustments

[26]As to scheduled breaks during her shifts. The Respondent is right that there is a lot of downtime when supporting a service user at home. The role, at home, is largely seated. While if a support worker becomes ill, managers can cover, it would not otherwise be practicable to schedule cover for breaks. The Claimant did not call for cover. I am not persuaded that she was materially disadvantaged by the practice. This argument fails.

[27]The Claimant’s waking shift was until 10pm. Any phone call from relatives up to that time should be manageable. I do not accept that the Clamant was materially disadvantaged by this. A phone call at 7pm or at 9pm should be accommodated. It would not be a reasonable adjustment to request that the service users’ family do not contact the service user after 7pm unless the matter was urgent. The sister’s shift may not dovetail with that. The sister did not telephone at or after 10pm.

[28]Phased returns to work can be sensible following extended absences. However, in this case they were not suggested. There were no extended absences and the Claimant herself never indicated she needed a phased return to work.

[29]The Claimant did not require a regular schedule for health reasons. She asked for fixed shifts so that she could arrange agency work elsewhere around them. It was not for health reasons but earning reasons.

[30]I uphold the claim, however, about failing to inform the Claimant about the subject matter of the investigation meeting on 23 February 2024. The agenda argument is the same point. The Respondent knew the Claimant had a bipolar condition. She said she was anxious and wanted to know the subject matter of the meeting. She could easily have been told about the complaint by way of reasonable adjustment. She was materially disadvantaged by the practice of not informing people of the subject matter of investigation meetings. It would have been reasonable to accommodate the request. Mrs Bottrell’s position at page 301 of the bundle was inadequate.

[31]In short, one claim of failure to make reasonable adjustments is upheld. The harassment allegations

[32]Liz Appleby denied these allegations in her witness statement. She was not challenged about them. Her evidence in her witness statement stands, therefore. In general, I found Liz Appleby to be a truthful witness in any event. These claims fail. Pregnancy Discrimination

[33]The Respondent did not fail to give the Claimant the promotion to House Manager she had been told she would get on 12 January 2024 because she was pregnant. The Claimant had said she did not want such a promotion in any event. It would have had to await the end of the probationary period anyway, and by then the relationship with AG and her sister had failed, leading to the Claimant failing her probation period.

[34]Liz Appleby did not say to the Claimant that the Respondent would struggle to pay her maternity pay at the beginning of February 2024. Liz Appleby was clear that she was unaware of what she described as payroll matters and was clear she did not say this. I found Liz Appleby credible. The Claimant’s evidence was not always credible, for example about what was said at the investigation meeting on 23 February 2024 (see above). I reject the Claimant’s contention and accept Liz Appleby’s position. Similarly, and for the same reasons, Liz Appleby did not say that the Claimant should have no more than a month of maternity leave. I reject these allegations. Where the Claimant’s evidence clashed with Liz Appleby, I preferred the evidence of Liz Appleby and rejected the Claimant’s.

[35]Pregnancy was not the reason for the Claimant’s shifts. The contractual obligation was 37.5 hours a week. Mr Hunt explained, and I accepted, that you need to look at the shifts provided on a 12-week basis, to see the patterns and tot up the hours. For example, 2 x 24 hr shifts in a week is 48 hours work. There is a lot of private time on that pattern. Further, the Claimant asked to be allowed to do agency work, to earn more money. That might have meant she wanted certain hours, but her timetable from the Respondent had nothing to do with the fact that she disclosed pregnancy. This is not prima facie proved by the Claimant.

[36]I reject the Claimant’s contention that Mr Hunt shouted at her because of pregnancy (or at all), saying that she was lucky even to have a job. I found Mr Hunt, in the main to be a reliable witness. His attempt at giving Peninsula the responsibility for the decision to terminate the Claimant’s contract was unattractive, but in the main he came across as knowing his service users and his support workers and being dedicated to the Respondent’s work. I have already said that I did not find the Claimant entirely reliable. I rejected her account of the investigation meeting on 23 February 2024. I prefer Mr Hunt’s version to hers.

[37]Mr Hunt did not ask the Clamant to complete additional training courses because she was pregnant. She had to do 30 in her probationary period anyway, 5 before she could even start. She needed to provide evidence of those that she had done. Some certificates may have been mislaid, and the Claimant was asked to resubmit them, which she did. The Clamant was on record, importantly, as saying to Liz Appleby that she might not complete the courses because she was not sure she would stay at the Respondent. That was a significant comment by her. She was not treated detrimentally because she was pregnant.

[38]Giving the Claimant shadow shifts was an essential part of the training and in order to introduce new service users. This was necessary because of the collapse of the relationship with AG and her sister. That was not unfavourable treatment.

[39]The Claimant does not prove that management breached the confidentiality of her pregnancy. Colleagues may have gossiped, but she dies not prove management was the source of any leak on the balance of probability.

[40]The Claimant was not denied ante-natal appointments. It is likely that she was told she could not go on these during a shift because the service user needed a carer there at all times. That did not prevent her attending appointments around shifts. We have already seen that there was a lot of private time around shifts.

[41]The Claimant was not dismissed because she was pregnant. The Respondent had experience of pregnant staff historically. She was dismissed because of the complaint from the sister of the service user and her reaction to the complaint in the investigation meeting. Notice Period

[42]The Claimant worked more than 37.5 hours in her notice period and so is owed nothing in respect of it. She was paid for those hours.

CONCLUSION

[43]Save for the allegation of failure to make the reasonable adjustment of advance disclosure of the subject matter of the meeting of 23 February 2024, these claims fail and are dismissed.