Ms R Curnock v The Governing Body of Our Lady of Lourdes Catholic Primary School: 1405494/2023

EMPLOYMENT TRIBUNALS

Case No 1405494/2023

Between

Ms R CurnockClaimant

The Governing Body of Our Lady of Lourdes Catholic Primary SchoolRespondent

Before

Employment Judge Mr P Cadney

- MS I BAYLISS (instructed by COUNSEL) for respondent

Date 21 May 2025

JUDGMENT

The judgment of the tribunal is that:- i) The claimant’s amendment application is granted. ii) The claimants asserted protected disclosures were not qualifying/protected disclosures within the meaning of s43B Employment Rights Act 1996; iii) The claimants claims of public interest disclosure detriment pursuant to s47B Employment Rights Act 1996 are dismissed; ---1--- iv) The evidence in relation to the meeting between the claimant and respondent on 11th April 2023 is subject to legal professional privilege and is inadmissible at the final hearing. v) The claimant’s claims of harassment related to sex pursuant to s26 Equality Act 2010 were presented out of time and it is not just and equitable to extend time. vi) The claimant’s claims of harassment related to sex pursuant to s26 Equality Act 2010 are dismissed as having been presented out of time. vii) Directions for the claimant’s remaining claims of victimisation pursuant to s27 Equality Act 2010 are given below.

REASONS

[1]The case came before EJ Livesey for a TCMPH on 5th March 2024. He identified the claims and set the case down for a Preliminary Hearing to determine the issues set out below. The claims are: i) Public Interest disclosure detriment (s47B ERA 1996); ii) Harassment Related to Sex (s26 Equality Act 2010); iii) Victimisation (s27 Equality Act 2010):

[2]The details of the claims are as set out on EJ Livesey’s CMO.

[3]The Preliminary Issues as set out in the Case Management order of EJ Livesey of 5th March 2024 are: Whether any of the public interest disclosures which are relied upon by the Claimant were;1.1.1 Made, as alleged;

1.1.2 Qualify as such under s. 43; 1.2 Whether the claims were brought in time or, if not and it is appropriate and possible to determine, whether they were part of a series of similar acts (s. 48 of the Employment Rights Act) or a course of conduct (s.123 of the Equality Act), the last acts of which were in time and, if not, whether it was reasonably practicable for the claims to have been brought in time (s. 48) or whether it is just and equitable for the claims to proceed (s.123); 1.3 Whether communications which passed between the parties on/around 11 April 2022 were without prejudice and ought to be excluded from the allegations and/or the evidence before the Tribunal (see paragraphs 8 and 47 of the claim and 31 of the response); ---2--- 1.4 Whether the judge considers that any allegation advanced by the Claimant has little reasonable prospects of success and whether a deposit order should be made under rule 39; 1.5 What further directions are necessary for the final hearing and when it should take place.

[4]Amendment Application - In addition to those matters since the previous case management hearing the claimant has made an application to amend to add a further protected disclosure which also needs to be resolved.

[5]Background - The claimant qualified as a teacher in 2015, and was employed by the respondent as a Year 4 (8/9 year old pupils) teacher in the 2022/2023 academic year. The events in issue in relation to the alleged disclosures all occurred during a two month period in October and November 2022. It is not in dispute that there were behavioural difficulties with some pupils linked to the Covid 19 lockdowns, nor that there were instances of disruptive or inappropriate behaviour in particular by two SEN children in the class, identified before me as Child A and Child B. It is accepted by all parties that a number of the underlying events involve allegations of inappropriate/disruptive behaviour which led the claimant to seek assistance from other members of staff. Issue 1 - Protected Disclosures

[6]In respect of the protected disclosures there are three issues to be resolved.

[7]The first is the application to amend to add a further protected disclosure; and the second and third are issues1.1.1 and

1.1.2 (above) – whether factually any disclosures were made and if so what was disclosed; and subject to those findings whether all or any were qualifying disclosures within the meaning of s 43B Employment Rights Act 1996.

[8]The protected disclosures as set out in the case management order (and subject to the application to amend) are (numbering as per the original CMO) :2.1.1.1 On or about 3 – 7 October, a child in class flipped tables over, on one occasion, ten times [13];

2.1.1.2 On 10 October, a child was reported as having brought frogs into the School and had threatened to kill them if he/she was reported [14];

2.1.1.3 On 12 October, the same child was reported as having dismembered the frogs [15];

2.1.1.4 On 18 October, a child climbed the banisters and the ---3--- Claimant was left alone to manage the situation and her own class. The situation escalated and the Claimant was required to break up a fight [16- 17];

2.1.1.5 On 19 October, a child locked themselves in the Claimant’s cupboard at lunch and, when they emerged, he/she threw her personal belongings at her desk and across the classroom [18];

2.1.1.6 On 1 November, a child flipped tables over and threw chairs [19];

2.1.1.7 On 4 November, a child locked himself in the classroom from inside [20-1];

2.1.1.8 On 7 November, a child locked himself in the Claimant’s classroom and, subsequently, the library [23];

2.1.1.9 On 8 November, a child locked himself in the Claimant’s cupboard and began screaming and banging within it [24];

2.1.1.10 In or about early November, a child began escaping from the School, which was possible because the gate had not been properly shut [24];

2.1.1.11 On 11 November, a child was banging a bench within the church and then ran outside and could not be found. The area was open to the public [25];

2.1.1.12 On 16 November, a child kicked another child’s head in the library [26];

2.1.1.13 On 18 November, a child stood up, banged the class door and then barred the Claimant and her class within it. Later, the child locked himself and another in the classroom [27];

2.1.1.14 On 20 November, the Claimant discovered a child in her class may have had epilepsy. But information had not been passed to her by management [29];

2.1.1.15 On 22 November, a child refused to attend the Claimant’s class but kicked a football in the playground instead. His behaviour deteriorated and he began to run in and out of the Claimant’s class whilst she was attempting to teach [30].

[9]These allegations comprise, in many cases allegations of a number of separate factual incidents, and a number of separate disclosures to different individuals, and there are therefore in total some 38 disclosures relied on (39 if the amendment application is permitted). ---4---

[10]Amendment Application – I will deal first with the amendment application.

[11]On 30th June 2024 the claimant applied to amend to add a further protected disclosure: "On or around 14 October 2022, the Claimant disclosed to Oliver Bell, Headteacher, that there had been incidents of a child in her class inappropriately touching other children's private parts. The Claimant expressed concern about the safeguarding implications of this behaviour."

[12]The basis of the application is that : The grounds for this application are as follows: a) The proposed amendment is relevant to the Claimant's case as it demonstrates her commitment to safeguarding and her attempts to raise serious concerns with management. b) The disclosure relates to potential breaches of the school's safeguarding policies and legal obligations to protect children from harm. c) The Claimant only recently recalled this specific disclosure when reviewing her notes and the bundle while preparing her witness statement. d) The Respondent has acknowledged awareness of this incident during the investigation interview of the Claimant's grievance with Oliver Bell on 15th June 2023 (see bundle Page 262). e) Including this disclosure will provide a more complete picture of the Claimant's protected disclosures and the school's response to her concerns. It is submitted that this amendment will not cause undue prejudice to the Respondent, as they were aware of the incident, and it falls within the same time period as the other disclosures already included in the claim. The Claimant respectfully requests that the Tribunal grant leave to make this amendment to her claim.

[13]The respondent objects to the application, on the basis that it was not included in the original claim when it was submitted on 4th August 2023; nor at or before the TCMPH on March 5th 2024; or at any point before 30th June 2024. There is no explanation other than that the claimant appears to have come across it in preparation for this hearing. It is particularly curious, they submit that an allegation which the claimant herself contends is serious and raises specific safeguarding issues was not brought at any earlier stage. ---5---

[14]However the respondent was able to take instructions and Mr Bell was able to give evidence about it. The reference to the interview with Mr Bell in relation to the claimant’s grievance is to his answers in relation to the allegations concerning 14th October 2022. He recalls being informed of reports of boys touching each other inappropriately. It was taken seriously, and he followed up with the claimant and the boys’ parents. He states that he completed concerns sheets at the time which the claimant did not. It is clear that the incident occurred, and that Mr Bell had and has a clear recollection of it.

[15]The relevant law is set out below: Employment tribunals have a broad discretion to allow amendments at any stage of the proceedings, either on the tribunal’s own initiative or on application by a party (rule 29) Such a discretion must be exercised in accordance with the overriding objective in rule 3 of dealing with cases fairly and justly. On the basis of Chaudhry v Cerberus Security and Monitoring Services Ltd

[2022] EAT 172

, a two-step approach is appropriate. First, the amendment or amendments sought should be identified, ideally in writing. Secondly, it is necessary to balance the injustice and/or hardship of allowing or refusing the amendment or amendments, taking account of all the relevant factors, including, to the extent appropriate, those referred to in Selkent. The balancing of the injustice and/or hardship of allowing or refusing the amendment is paramount (as stressed for example in Vaughan v Modality Partnership

[2021] ICR 535

(EAT). Vaughan was dealt with in the EAT by the same Judge who later dealt with Chaudhry (see below) . The test was set out by the EAT in Selkent Bus Company Ltd-v-Moore

[1996] ICR 836

EAT, which approach was also endorsed by the Court of Appeal in Aliv-Office of National Statistics

[2005] IRLR 201

CA. It was held in Selkent that, in determining whether to grant an application to amend, the Tribunal must always carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment. The relevant factors were set out by Mummery J and include: 1 The nature of the proposed amendment; 2 The applicability of time limits; if a new claim or cause of action is proposed to be added by way of amendment, whether or not it arises out of the same facts as the original claim, it is “essential” (per Mummery J in Selkent) for the Tribunal to consider whether that claim or cause of action is out of time and, if so, whether the time limit should be extended. Where the amendment is simply changing the basis of, or “re-labelling”, the existing claim, it raises no question of time limitation (see, for example, Foxtons Ltd-v-Ruwiel

UKEAT/0056/08

per Elias P at para 13). 3 The timing and manner of the application; an application should not be refused solely because there has been a delay in making it. The later the application is made, the greater the risk of the balance of hardship being in ---6--- favour of rejecting the amendment (Martin-v-Microgen Wealth Management Systems Ltd EAT 0505/06). However, an application to amend should not be refused solely because there has been a delay in making it, as amendments may properly be made at any stage of the proceedings.. These factors are not exhaustive and there may be additional factors to consider. In Vaughan v Modality Partnership

2021 ICR 535

, EAT, the EAT gave detailed guidance on the correct procedure to adopt when considering applications to amend tribunal pleadings. “A practical approach should underlie the fundamental exercise of balancing the hardship and injustice of allowing as against refusing the amendment. Representatives would be well advised to start by considering, possibly putting the Selkent factors to one side for a moment, what will be the real practical consequences of allowing or refusing the amendment. If the application to amend is refused how severe will the consequences be, in terms of the prospects of success of the claim or defence; if permitted what will be the practical problems in responding. This requires a focus on reality rather than assumptions. It requires representatives to take instructions, where possible, about matters such as whether witnesses remember the events and/or have records relevant to the matters raised in the proposed amendment. Representatives have a duty to advance arguments about prejudice on the basis of instructions rather than supposition. They should not allege prejudice that does not really exist. It will often be appropriate to consent to an amendment that causes no real prejudice. This will save time and money and allow the parties and tribunal to get on with the job of determining the claim. Following Vaughn, tribunals should consider what evidence there is of the real, practical consequences of allowing or refusing the amendment will be. If the application to amend is refused, how severe will the consequences be, in terms of the prospects of success of the claim or defence? If permitted, what will be the practical problems in responding? No one factor is likely to be decisive. The balance of justice is always key. A balancing exercise always requires express consideration of the interests of both parties, both quantitively and qualitatively. It is not merely a question of the number of factors, but of their relative and cumulative significance in the overall balance of justice.

[16]Conclusions – The respondent clearly makes a good point that it is not at all clear why or how the claimant failed to bring this as a claim when she lodged her claim in August 2023; or why or how it took her nearly a year to recall it and seek permission to rely on it; and she has not given any particularly cogent explanation. However the test for the tribunal following Vaughn is to assess the practical difficulties or prejudice to the parties of permitting or refusing the application.

[17]As is set out below the claimant has already made numerous allegations of having made protected disclosures, and in purely practical terms one more or less would not appear to make any significant difference. On the other hand the relevant witness is already before the tribunal, recalls the incident and there is relatively contemporaneous documentary evidence in respect of it; and it follows that the evidential prejudice to the ---7--- respondent is minimal. In my judgement and in the circumstances the balance of prejudice favours the claimant and I will permit the amendment.

[18]The alleged disclosure will be considered on its merits at the appropriate chronological point in the list below. Protected Disclosures / Relevant Law-

[19]A protected disclosure is a disclosure which : i) Discloses information , which; ii) In the reasonable belief of the individual making the disclosure; iii) Is in the public interest ; and iv) Tends to show a breach falling within one of the categories set out in s43B ERA 1996 (in this case the breach of a legal obligation).

[20]The following principles emerge from the case-law, all of which are well settled: Qualifying / Protected Disclosure i) There must be a disclosure of information (Cavendish Munro Professional Risks Management Ltd v Geguld

[2010] IRLR 38

; Goode v Marks and Spencer plc

UKEAT/0442/09

), although there is recognised to be a grey area between `information” and `allegation`/`opinion`, as noted in cases such as Western Union Payment Services UK Ltd v Anastasiou

UKEAT/0135/13

. The question will always be a fact-sensitive one (see Kilraine v London Borough of Wandsworth

[2018] EWCA Civ 1436

):“the dichotomy between “information” and “allegation” is not one that is made by the statute itself. It would be a pity if tribunals were too easily seduced into asking whether it was one or the other when reality and experience suggest that very often information and allegation are intertwined. The decision is not be decided by whether a given phrase or paragraph is one or rather the other, but is to be determined in the light of the statute itself. The question is simply whether it is a disclosure of information. If it is also an allegation, that it nothing to the point” – per Langstaff J, para 30, an approach upheld by the Court of Appeal. ii) The key issue under s.43B(1) is reasonable belief. It is not necessary for a Claimant to show that his belief that the information tended to show one of the relevant categories of failure was, in fact, correct and/or that the disclosure was in fact in the public interest (Darnton v University of Surrey

[2003] IRLR 133

). The key questions are(a) whether he held such a belief at all, and

(b) whether such belief was reasonable. The genuineness of the alleged belief (i.e. whether the employee had such a belief at the relevant time), is a question of fact for the tribunal. The reasonableness of the belief is to be assessed on a subjective basis (it is the reasonable belief of the worker which is relevant), taking into account the characteristics of and any particular knowledge or experience the particular claimant may possess (Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

). ---8--- iii) The term `public` interest` is not defined in the legislation. However, it does not include genuinely private` complaints or grievances between employer and employee. In Chesterton Global v Nurmohamed

[2017] EWCA Civ 979

, it was confirmed that there is no bright line when considering this issue. In a case where there are mixed interests (personal and public), it is for the tribunal to determine, as a question of fact, whether there was a sufficient public interest to qualify for protection under the PIDA legislation. In the CA, Underhill LJ noted the following: “The statutory criterion of what is “in the public interest” does not lend itself to absolute rules, still less when the decisive question is not what is in fact in the public interest but what could reasonably be believed to be. I am not prepared to rule out the possibility that the disclosure of a breach of a worker's contract of the Parkins v Sodexho kind may nevertheless be in the public interest, or reasonably be so regarded, if a sufficiently large number of other employees share the same interest. I would certainly expect employment tribunals to be cautious about reaching such a conclusion, because the broad intent behind the amendment of section 43B(1) is that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers – even, as I have held, where more than one worker is involved. But I am not prepared to say never. In practice, however, the question may not often arise in that stark form. The larger the number of persons whose interests are engaged by a breach of the contract of employment, the more likely it is that there will be other features of the situation which will engage the public interest. Against that background, in my view the correct approach is as follows. In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker…. The question is one to be answered by the Tribunal on a consideration of all the circumstances of the particular case, but [counsel for the employee's] fourfold classification of relevant factors which I have reproduced … above may be a useful tool. As he says, the number of employees whose interests the matter disclosed affects may be relevant, but that is subject to the strong note of caution which I have sounded in the previous paragraph.” (My underlining) Those four factors were as follows: the numbers in the group whose interests the disclosure served; the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect; the nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people; the identity of the alleged wrongdoer….. “the larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e. staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest” – though he goes on to say that this should not be taken too far. iv) In Parsons v AirPlus International Ltd

UKEAT/0111/17

, the EAT pointed out that the fact that in law a disclosure does not have to be either solely or wholly in the public interest or wholly from self-interest, does not prevent a tribunal from finding on the facts that it was actually only one of them (here there was a finding that allegations made during the ---9--- course of a disciplinary process against the claimant were made solely out of selfinterest). v) One or more of the six categories of failure, each set out in s.43B(1) ERA, must be established by a claimant seeking to rely on the PID provisions. Where s.43B(1)(b) is concerned (breach of a legal obligation), (“a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject”), there must be an actual or likely breach of the relevant legal obligation. The term likely requires more than a risk or a possibility that the relevant obligation may be breached (Kraus v Penna Plc

[2004] IRLR 260

). A disclosure can be a qualifying disclosure even if the employer is already aware of the information (s.43L). vi) Where there are multiple disclosures, some care needs to be taken as to whether they may properly be aggregated and considered as forming a single rather than separate disclosures. In Norbrook Laboratories (GB) Ltd v Shaw

[2014] ICR 540

, three emails were aggregated to form one disclosure, even though at least one of them would not have qualified in isolation. According to Slade J:“An earlier communication can be read together with a later one as “embedded” in it, rendering the later communication a protected disclosure, even if taken on their own, they would not fall within s.43B(1)(d)……. Accordingly, two communications can, taken together, amount to a protected disclosure…..Whether they do so, is a question of fact.”

[21]In this case the fundamental disputes are as to the issue of the disclosure of information and/or whether the disclosures in fact in the reasonable belief of the claimnt tended to show any breach of a legal obligation on the part of the respondent.

[22]Information – As set out above ,the principles are set out in the judgment of the Court of Appeal in Kilraine v LB Wandsworth

[2018] ICR 1850

), and are in summary: i) The word “information must be read in context together with the phrase ”tends to show”; ii) It follows that to be a qualifying disclosure it must have sufficient factual content to be capable of tending to show that the relevant failure (in this case the breach of a legal obligation) has occurred; iii) Context is relevant to determining whether the disclosure meets those requirements.

[23]I will deal with each of the allegations individually, but the parties make the following points in summary.

[24]Claimant : The claimant asserts: i) All the disclosures were necessarily disclosures of information (See Kilraine v LB Wandsworth [2018[] ICR 1850) in that they concerned and disclosed the specific behaviour of individual pupils; ii) The claimant reasonably believed that the disclosures tended to show a risk to the safety of other pupils and disruption to their learning which itself tended to show the school ---10--- to be in breach of its legal obligations to the other students (the legal obligations relied on are those summarised below). iii) She reasonably believed that the disclosures were in the public interest as pupil safety and the quality of education provided to pupils is necessarily a matter of public interest. iv) Any information provided in any context to any of her colleagues which concerns dangerous or disruptive behaviour by a child is necessarily a protected disclosure without more.

[25]Respondent: The respondent asserts: i) The fundamental basis of any claim that a disclosure was a qualifying/protected disclosure is to identify precisely what was disclosed, when and to whom. This is necessary both to allow the question of whether an individual disclosure was or was not a qualifying disclosure to be resolved, and also to allow basic fairness to the respondent to know specifically what allegations it has to meet evidentially. From the information and evidence provided by the claimant it is in most, if not all cases, impossible to know what was disclosed. In respect of many of the incidents the claimant did not in fact make any disclosure directly; she sent a child to fetch another teacher; and what was said is impossible to know. Moreover the claimant lodged a grievance in 2023 which did not refer at all to many of the incidents she now relies on. In addition she did not at any stage make or attempt to make any disclosure under the school’s whistleblowing policy; ii) The claimant cannot have had any reasonable belief that for the vast majority of incidents that they involved safeguarding issues at all, let alone a breach of the respondents safeguarding obligations as, in the vast majority of cases she did not compile any safeguarding reports; as should have been bound to have done had she believed at the time that they in fact raised any safeguarding concerns. iii) Fundamentally, the claimant’s assertion that the reporting of the fact of an incident occurring is itself evidence of and/or the disclosure of information tending to show that the respondent is in breach of any obligation is simply misconceived. Children do behave badly on occasion, as do some children with Special Educational Needs (SEN). If this were not so every time a child behaved badly in any school in the country the school or its governors would automatically be in breach of the legal obligations they owe, which is obviously not true. iv) There is a vast difference between informing a colleague of an incident of which the claimant believes they should be aware as part of their professional duties, and a disclosure that the school itself is in breach of any legal or safeguarding obligation. It is clear from the claimant’s own evidence that she does not accept or understand this distinction which leads her to contend that any conversation with colleagues is necessarily a protected disclosure, which itself demonstrates the absurdity of many of the allegations. Protected Disclosure – Factual Issues / Information ---11---

[26]Before dealing with the individual points of dispute there are a number of fundamental points of dispute between the parties which are in outline:

[27]Factual disputes - As set out above, the first question is to identify the factual basis of the disclosures, in respect of which, it is for the claimant to prove on the balance of probabilities: What factually was disclosed, to whom and when;

[28]As summarised above, one of the respondents basic submissions is that: i) That exercise requires a reasonable level of precision as to the allegations; but in relation to many if not all the allegations the evidence as to the disclosures themselves is extremely vague or non-existent. The reason for this is that the claimant has not in her evidence made or sought to make any distinction between the underlying events and the disclosures as separate factual allegations. ii) In the main in her written and oral evidence, the claimant does not in fact refer to the specific disclosures at all, but gives a description of the underlying factual incident, and to whom she spoke in relation to the underlying incident, but not what was disclosed to each alleged recipient; meaning that it is impossible to make any specific factual findings in most if not all cases as to what was disclosed. iii) In relation to a number of the incidents the person to whom the disclosure was allegedly made recalls being informed that a child was “dysregulated”, but not of the specifics of what was alleged; or that the information as to what occurred came from their own observation having attended the incident, and not what they were told by the claimant. iv) It is not for the respondent (or the tribunal) to attempt to disentangle what may or may not have been disclosed on each occasion; but for the claimant to adduce evidence with a sufficient level of detail to allow specific factual findings of what was disclosed, to whom and when; and she has in her evidence in essence made no attempt to do so. v) The respondent has a written incident reporting regime which the claimant accepts that she did not follow on all occasions. The number in the bundle are very limited and it follows that in respect of a number of the underlying allegations there is little or no supporting documentary evidence. vi) The claimant accepted and asserted in evidence that it was her position that every conversation she had with any colleague about inappropriate or unsafe behaviour on the part of a child is necessarily a protected disclosure. The consequence is that a number of the protected disclosures asserted below are simply conversations between colleagues about daily events, and it is unsurprising that both the allegations and the recollection of the witnesses is in some cases extremely vague. (For the reasons set out above the respondent also asserts that this proposition is fundamentally misconceived in any event) vii) This places the respondent in the impossible position of having to defend as protected disclosures what, in many cases, were even on the claimant’s evidence simply casual conversations between colleagues, in respect of which it is both impossible to ---12--- establish what was or was not disclosed and/or unreasonable to expect colleagues to remember the detail of essentially casual conversations.

[29]The claimant submits that difficulties identified by the respondent are more apparent than real: i) She has set out factually what she alleges occurred in respect of each incident; ii) What she disclosed were the facts of the incident as she has set out; iii) There is therefore no need for her to set out in relation to each disclosure in any detail what she alleges she disclosed, as the details were the details relating to the underlying events.

[30]Conclusions – In my judgment the respondent is fundamentally correct in this submission. The starting point of a claim in relation to a protected disclosure is to identify with a reasonable degree of certainty (and evidentially on the balance of probabilities) what was disclosed to whom and when. The burden lies on the claimant and in the absence of her adducing sufficient evidence to allow the tribunal to make such findings the claims will fail at the first hurdle.

[31]The consequences for the individual disclosures relied are set out below in the discussion of the individual disclosures.

[32]Breach of a Legal Obligation – The claimant contends that each of the factual allegations was a disclosure which, in her reasonable belief tended to show a breach of a legal obligation on the part of the respondent. The legal obligations relied on are: i) The failure of the school to comply with its legal obligations- being failures in respect of self-regulation, safe guarding and child protection; ii) Further obligations relied on are – the UN Convention on the Rights of the Child (Articles 6 and 16 in particular); iii) The Children Act 1989 and 2004 – which places safeguarding obligations on schools; iv) The Education Act 2002 – which provides safeguarding obligations v) The common law duty of care (See Webster v Ridgeway Foundation School) vi) The schools own safeguarding policies.

[33]There is a fundamental dispute between the parties as to this. It is not in dispute that the claimant did not explicitly assert factually or legally in any of the alleged disclosures, that the respondent was in breach of any legal obligation; and specifically not specifically any of those she now relies on.

[34]The respondent asserts that this is a fundamental issue underlying the claims which is fatal to most if not all of them. The complaints are in the main about the behaviour of pupils. The pupils themselves owe no duty (although in her closing submissions the claimant asserts that they do, but as set out above all of the claims are based on disclosures of the alleged each of duty by the respondent not by any of the children), and if they behave badly or even dangerously they are not in breach of any legal obligation to ---13--- anybody. A disclosure of any behaviour on their part is not in and of itself capable of forming the basis of any protected disclosure ending to show a breach of a legal obligation.

[35]Moreover, the disclosure in relation to the behaviour of a child does not in and of itself tend to show a breach on the part of the respondent of any legal obligation. Put simply, in order to be a protected disclosure tending to show that the respondent was or may be in breach of a legal obligation the disclosure would to disclose both elements, the behaviour and at least some reference to the alleged breach involved, at very least implicitly. Even on the claimant’s case in the main the disclosures did not go beyond the first stage, of informing colleagues of the behaviour of one or more children. Such a disclosure is not capable of forming the factual basis of an allegation that the respondent was in breach of any legal obligation, as such an allegation is not in fact made.

[36]It follows that the claimant cannot reasonably have believed that she was making a disclosure she did not in fact make.

[37]The claimant does not dispute this factually, but asserts that a disclosure of behaviour by a child which puts the safety of other children at risk and/or disrupts their education is necessarily an allegation of a breach of a legal obligation on the part of the school owed to those other pupils. It is not necessary for any disclosure to assert explicitly that those other children were placed at risk, or that their education was disrupted, or that this placed the respondent in breach of any legal obligations it owed them, as this is all implicitly contained within the simple and basic factual disclosure of the behaviour of a “dysregulated” pupil. Put simply, that factual disclosure is all she needs to make.

[38]Conclusions – The resolution of this issue is fundamental to the resolution of many, if not all, of the disclosures. In my judgement the respondent is correct. The disclosure of information relating to the behaviour of a child/pupil is not in and of itself and without more, a disclosure of information tending to show a breach of any legal obligation on the part of the respondent. I accept that in some circumstances that it might do, if for example the claimant had alleged in one disclosure that the behaviour of a child resulted from or involved a breach of the respondents policies or legislation, a later bare allegation of repeated behaviour by the same child might implicitly also be a disclosure of a continuing breach by the respondent (see para 20 vi) above). However, in principle, I accept the respondents submission that a bare assertion of the behaviour of a child is at least very unlikely, and other than in very specific circumstances to involve any disclosure of any relevant failure on the part of the respondent.

[39]As set out above, one of the central issues is to identify as precisely as possible what the claimant alleges she disclosed and to whom. I will therefore deal with each allegation individually and in so far as is possible make findings , or where appropriate that it is not possible to make factual findings about what was disclosed.

[40]Allegations 1/6 - (2.1.1.1) - On or about 3 – 7 October 2022, a child in class flipped tables over, on one occasion, ten times (The child in question has been identified as Child A before me) and allegation 2.1.1.6 (similar incident involving the same child ---14---

[41]In her witness statement in respect of the first set of incidents the claimant asserts that : “I reported multiple incidents of a child in my class flipping tables over, with one day involving ten such incidents. I expressed concerns about the safety of other children and the disruption to learning. The Respondent acknowledges that the incidents occurred but disputes the severity. Olly Bell (OB) states: "The child referred to by the Claimant was prone to dysregulated behaviour, which would involve pushing tables away and towards themselves as a way of cocooning and keeping safe.”

[42]In terms of disclosures she contends that disclosures were made to : Recipients: Oliver Bell (Headteacher and designated Safeguarding Lead), Liz Hopewell/Wilson (Teaching assistant), Theresa Gee (SEND Coordinator), Rebecca Toyne (Class Teacher), and David Hall (Class Teacher)

[43]In respect of the second similar incident involving the same child on 1st November 2022 she alleges disclosures were made to Oliver Bell and Liz Hopewell. Ms Hopewell has no recollection of the incident; Mr Bell recalls being called to the incident and the claimant’s description of the disclosure “is of trying to seek support”.

[44]In respect of the first set of events it will be obvious that the events themselves cover five days; that the claimant alleges that there were ten separate incidents on one day alone; and that there are allegedly five separate recipients, but no attempt has been made to identify specifically what was disclosed to whom and when. Whilst the claimant cannot necessarily be held to standards of absolute precision the fact that she has made no attempt at all to disentangle what was disclosed to whom and when, makes the task of identifying specific individual disclosures, and what was to disclosed to whom and when extremely difficult.

[45]There is no documentary evidence supporting the allegation of any disclosure in respect of these specific allegations. For completeness sake there is a report of an incident from 12th October referring to similar behaviour signed RC/OB. However, there is no allegation from the claimant relating to any disclosure in respect of this incident.

[46]Mr Bell accepts that he was asked to give support in some of these instances, and does not therefore dispute in general terms that some of the events, at least occurred and were drawn to his attention, although he suggests that the tables were being moved rather than flipped; and in particular, and in any event he contends that to the extent that he was aware of these incidents it was because of his participation in them and what he observed; and not because of any disclosure of information by the claimant. Ms Hopewell accepts that she was told in general terms about tables being flipped but cannot remember when; Ms Gee was not at school on the earlier dates but was told on 5th October that a child was ---15--- “dysregulated.” Similarly Ms Toyne, and Mr Hall recall being made aware of the incidents occurring.

[47]In respect of the second similar incident involving the same child on 1st November 2022 she alleges disclosures were made to Oliver Bell and Liz Hopewell. Ms Hopewell has no recollection of the incident; Mr Bell recalls being called to the incident. The claimant’s description of the disclosure is of trying “to seek support…”, although she does not set out precisely what she alleges she disclosed and to whom.

[48]Submissions – I have set out the evidence in some detail in respect of this first set of allegations as they exemplify the parties positions in respect of many of the allegations that follow.

[49]The claimant submits that whilst there may be disputes of detail in respect of the underlying incidents, that it is not in dispute that she conveyed information, either personally or via another child to various members of staff, as to the events she describes, even if in the most general terms. They were serious enough to require assistance and/or for her to comment on them to colleagues afterwards; and the underlying allegation is of behaviour which put the safety of and/or the education of pupils at risk. Conveying the information to other members of staff albeit orally and albeit in what may have been understood as general conversation, is necessarily a qualifying disclosure.

[50]The respondent submits that these cannot come close to being even arguably protected disclosures. Firstly the claimant has made no attempt to identify to whom she made a disclosure, when, in what circumstances and what she disclosed. The most that can be said on her own evidence is that incidents occurred for which she sought the assistance of colleagues, and about which she spoke to other colleagues later. As a result, it is impossible to know, even on her own evidence what she alleges she disclosed to whom and when, which is the basic evidential starting block of an allegation of making a protected disclosure. Moreover a request for assistance and/or chatting about an incident to other colleagues later does not involve any allegation implicitly or explicitly that the respondent itself was in any breach of any legal obligation for the reasons set out above. The simple disclosure of bad behaviour on the part of a pupil does not involve explicitly or implicitly any allegation that the respondent is in breach of any legal obligation owed. In order for such an allegation to be made and constitute a disclosure there would need to be some factual disclosure not simply as to what the child had done, but what the school had done or failed to do which put it in breach of any obligation owed to the child himself or any other children. The claimant does not make any allegation that she made any such disclosure.

[51]Conclusions – In my judgment the respondent is essentially correct. On the basis of the claimant’s evidence itself: a) It is not possible to identify and/or make any basic findings of fact as to what disclosure was made to whom and when; which is in and of itself fatal to the claim; ---16--- b) For the reasons set out above I accept that there is no alleged disclosure of any information tending to show a breach by the respondent itself of any legal obligation.

[52]It follows that in my judgement these allegations are not qualifying disclosures within the meaning of s43B ERA 1996.

[53]Allegations 2/3 (2.1.1.2/3) - On 10 October, a child was reported as having brought frogs into the School and had threatened to kill them if he was reported [14]; On 12 October, the same child was reported as having dismembered the frogs [15] (Identified as Child C before me).

[54]In her witness statement the claimant states that she conveyed both these allegations to Mr Bell. He does not dispute that she did so. He spoke to the child and the child’s mother. The child denied this but accepted he had brought bugs from the garden into the school. There is in fact no evidence that alleged incidents ever occurred.

[55]The respondent submits that this exemplifies one of the difficulties in the case. In respect of this allegation there is little dispute as to factually what was disclosed, or to whom it was disclosed. However, the claimant was simply reporting what she had been told by another child and could have had no means of knowing whether the underlying allegation was true or untrue, and more pertinently her reporting is part of the safeguarding process, as is Mr Bell speaking to the mother and the child. The disclosure of the underlying event itself cannot be or involve, and the claimant could not reasonably have believed that it involved any allegation of any breach of any legal obligation by the respondent simply because the underlying event had occurred, if in fact it ever had. Put simply the reporting of an incident as part of the safeguarding/professional processes cannot, at least in these circumstances be an allegation of a breach of the safeguarding process itself, and the claimant makes no allegation that she made any disclosure of information tending to show a breach of a legal obligation on the part of the respondent.

[56]In my judgement again the respondent’s submissions are correct. If the claimant had alleged that the incident had happened because the respondent had failed to put a sufficient safeguarding process in place, or had failed to act on earlier safeguarding concerns, that might be a public interest disclosure precisely because it would be a disclosure tending to show a breach of a legal obligation on the part of the respondent; but she is not making any such allegation, or suggesting that she ever did so.

[57]Conclusions – In my judgment it follows that there is no evidence before me of any disclosure in relation to this incident which in her reasonable belief tended to show a breach of any of the legal obligations relied on; as the claimant does not in fact contend she ever made one. Simply reporting the underlying event is not, does not in my judgement, involve the making of a qualifying disclosure within the meaning of s43B. ---17---

[58]Amended Allegation (see above ) 14th October 2022 "On or around 14 October 2022, the Claimant disclosed to Oliver Bell, Headteacher, that there had been incidents of a child in her class inappropriately touching other children's private parts. The Claimant expressed concern about the safeguarding implications of this behaviour."

[59]In her witness statement the claimant confirms that she “specifically reported that a child was touching other children’s genitals”. She makes no allegation that she “expressed concern about the safeguarding implications of this behaviour”. It appears from both the claimant’s evidence and that of Mr Bell that she reported the facts of the incident but made no allegation that this constituted any breach on the part of the respondent itself.

[60]In respect of this allegation the specifics of what was disclosed appear tolerably clear. However, as with the allegation above, her reporting is part of the safeguarding process, as is Mr Bell speaking to the parents. The disclosure of the underlying event itself cannot be or involve, and the claimant could not reasonably have believed that it involved any allegation of any breach of any legal obligation by the respondent simply because the underlying event had occurred. Put simply the reporting of an incident as part of the safeguarding process cannot, at least in these circumstances in my judgement be an allegation of a breach of the safeguarding process itself, and the claimant makes no allegation that she made any disclosure of information tending to show a breach of a legal obligation on the part of the respondent.

[61]As above, if the claimant had alleged that the incident had happened because the respondent had failed to put a sufficient safeguarding process in place, or had failed to act on earlier safeguarding concerns, that might be a public interest disclosure precisely because it would be a disclosure tending to show a breach of a legal obligation on the part of the respondent; but she is not making any such allegation, or suggesting that she ever did so.

[62]Conclusions - Again, in my judgment it follows that there is no evidence before me of any disclosure in relation to this incident which in her reasonable belief tended to show a breach of any of the legal obligations relied on; as the claimant does not in fact contend she ever made one. Simply reporting the underlying event is not, does not in my judgement, involve the making of a qualifying disclosure within the meaning of s43B.

[63]Allegation 4 (2.1.1.4) On 18 October, a child climbed the banisters and the Claimant was left alone to manage the situation and her own class. The situation escalated and the Claimant was required to break up a fight. [16-17];

[64]It is not in dispute that the fact of a child climbing the stairs unsafely was brought to Mr Bell’s attention, although he disputes that this was from the claimant, but was in fact another staff member. The allegation of a fight is disputed ,and in her witness evidence the claimant does not refer to a fight and/or making any disclosure about one. ---18---

[65]Once again this raises the same two issues. Firstly did the claimant make any disclosure to Mr Bell, and if so what was the information disclosed. Secondly is the disclosure of the underlying events sufficient to be a disclosure of information tending to a show a breach of a legal obligation on behalf of the respondent.

[66]Conclusions – In my judgement this alleged disclosure is not a disclosure within the meaning of s43B as: i) On the evidence I am not satisfied on the balance of probabilities that the claimant made any disclosure to Mr Bell; ii) If she did it is impossible on the evidence to make any factual findings as to what was disclosed; iii) The disclosure of information as to the underlying events is not a disclosure of information tending to a breach of any legal obligation on the part of the respondent.

[67]Allegation 5 (2.1.1.5) – On 19 October, a child locked themselves in the Claimant’s cupboard at lunch and, when they emerged, he/she threw her personal belongings at her desk and across the classroom [18];

[68]In her witness statement the claimant also alleges factually that “a senior member of staff had to intervene to physically restrain the child”.

[69]Mr Bell recalls being asked to assist an incident in the claimant’s classroom, but not who asked him.

[70]Conclusions- In my judgment many of the same points arise: i) There is no evidence before me that the claimant made any disclosure to Mr Bell other than potentially asking for assistance via someone else; ii) There is no evidence as to what was allegedly disclosed; iii) The simple fact of the disclosure of an incident requiring assistance does not in and of itself involve the disclosure of information of the breach of any legal obligation on the part of the respondent.

[71]Allegation 6 (2.1.1.6)- On 1 November, a child flipped tables over and threw chairs [19]; (See allegation 1 above).

[72]Allegation 7 (2.1.1.7)- On 4 November, a child locked himself in the classroom from inside [20-1];

[73]In her witness statement the claimant refers to an incident on 4th November in which a child refused to attend assembly, and took disruptive action. She ---19--- allegedly made disclosures to Wendy Gay, who has no recollection of it; and Rita McCloughlin who states she was informed by another member of staff; and Theresa Gee.

[74]Theresa Gee recalls attending the classroom, having been informed by the claimant that a child had locked themselves in because they did not want to attend assembly, and that she and Ms Hopewell had supported the child. At a meeting later that day the claimant conveyed concerns about the behaviour of two children in particular, giving examples of which the respondent was already aware, and alleged that she had been hurt in the chest whilst restraining a child that day.

[75]Conclusions - In respect of this allegation it follows that there is specific evidence from the respondent as to what was disclosed, when and to whom; and the basic factual issues do not arise in respect of this allegation (although it is notable that this information comes from the respondent not the claimant). .

[76]However, the second issue of whether there was any disclosure of information which in the reasonable belief of the claimant tended to show a breach of a legal obligation on the part of the respondent remains.

[77]In my judgement, even with the more detailed recollection of Ms Gee, it is clear that the information related to concerns about the behaviour of the pupils and there is no express or implicit disclosure of any information alleging any breach of a legal obligation on the part of the respondent itself. It follows that there was not, in my judgement, the disclosure of information tending to show a breach of any legal obligation on the part of the respondent

[78]Allegation 8 – (2.1.1.8) On 7 November, a child locked himself in the Claimant’s classroom and, subsequently, the library [23];

[79]In her witness statement the claimant asserts that on her return from lunch she discovered a child had locked himself in a cupboard; and subsequently began to run in and out of the classroom repeatedly causing disruption, and asserts she made disclosures to the recipients identified below, although she does not state by what means, precisely what she disclosed or whether she made disclosures separately or jointly to them. Rebecca Toyne, Liz Hopewell and Oliver Bell have no recollection of the incident, or being informed about it by the claimant.

[80]Conclusions - In respect of this allegation there is therefore a direct conflict of evidence. There is no contemporaneous documentary evidence support of it in respect of any of the recipients. On the balance of probabilities I am not satisfied that any such disclosures were made. In addition in the absence of any evidence from the claimant herself it is not possible to understand, and therefore to make any findings of fact about what was allegedly disclosed to whom and when. For completeness sake it is also true that for the reasons given above, the disclosure of the facts relating to the incident itself would not in any event have involved any

[81]It follows that this allegation must be dismissed. ---20---

[82]Allegation 9 (2.1.1.9)- On 8 November, a child locked himself in the Claimant’s cupboard and began screaming and banging within it [24];

[83]In her witness statement the claimant expands on this allegation and asserts she disclosed “multiple serious incidents” to the recipients set out below, including the specific allegation set out above, but also in respect of allegations of events which she had not witnessed, of a pattern of behaviour of a child continually attempting to exit the school grounds, on one occasion succeeding and nearly being hit by a car. This in fact is allegation 10 set out below, and in respect of this allegation I will focus solely on the specific alleged disclosure set out above. Once again the claimant does not set out how she allegedly made the disclosures, whether jointly or separately, and what she disclosed in any case.

[84]None of David Hall, Liz Hopewell or Rebecca Toyne have any recollection of this incident, or of being informed of it by the claimant.

[85]Conclusions – This again raises the same issues. There is no evidence from the claimant of what she disclosed, how or to when; and no contemporaneous evidence supporting the allegation. The alleged recipients have no recollection of the incident or being informed of it. On the balance of probabilities I am not satisfied that any such disclosures were made. In addition in the absence of any evidence from the claimant herself it is not possible to understand, and therefore to make any findings of fact about what was alleged disclosed to whom and when. For completeness sake it is also true that for the reasons given above, the disclosure of the facts relating to the incident itself would not in any event have involved any

[86]Allegation 10 (2.1.1.10)- In or about early November, a child began escaping from the School, which was possible because the gate had not been properly shut [24];

[87]In her witness statement the claimant refers to becoming aware of a child repeatedly attempting to leave the school premises and of being informed on one occasion that he had succeeded and narrowly avoided being hit by a car. However, this was information that was provided to her and she has no direct knowledge of the incident. As set out above the disclosures were allegedly made on 8th November to the same recipients as at allegation 9, none of whom have any recollection of being informed about it. For completeness sake, in his grievance interview Mr Hall makes reference to what appears to be this incident in which a child activated the button and left the school and he went after them.

[88]Conclusions - It is extremely difficult to assess this. Initially the claimant appears to be asserting that she was the recipient of the information/disclosure, which she passed on. On her own evidence these were not events in respect of which she had any direct knowledge, and they would appear simply to be allegations and not information, as she had no actual information to disclose. Moreover they come up against the same difficulties outlined above. There is no evidence from the claimant of what she disclosed, how or to when; and no ---21--- contemporaneous evidence supporting the allegation. The alleged recipients have no recollection of the incident or being informed of it. On the balance of probabilities I am not satisfied that any such disclosures were made. In addition in the absence of any evidence from the claimant herself it is not possible to understand, and therefore to make any findings of fact about what was alleged disclosed to whom and when. For completeness sake it is also true that for the reasons given above, the disclosure of the facts relating to the incident itself would not in any event have involved any

[89]Allegation 11 (2.1.1.11) - On 11 November, a child was banging a bench within the church and then ran outside and could not be found. The area was open to the public [25];

[90]The respondents evidence is that her was no such incident on 11th November. There was, however, an incident on 17th November. No disclosure was made to Oliver Bell (although he was aware of the incident). No disclosure was made to Liz Hopewell or Rita McLoughlin, but they were aware of the incident as they were present. Neither Gina Searle nor Rebecca Toyne were aware of the incident. David Hall in his witness statement accepts that he was informed that it had occurred by the claimant.

[91]Conclusions - In this case it follows that there is one accepted disclosure of information to the fact of the incident made by the claimant to Mr Hall. However, as above this appears to be simply a report of poor or disruptive behaviour on the part of a child, and there is not alleged to be any explicit or implicit conveyance of any information as to any breach of any legal obligation on the part of the respondent. For the reasons given above that isn’t in my view sufficient for it to amount to a qualifying discosure.

[92]Allegation 12 (2.1.1.12- the On 16 November, a child kicked another child’s head in the library [26];

[93]The claimant alleges that whilst off sick she was informed that this had occurred. The actual disclosure alleged is that that the child repeatedly shouted in class “I will kick someone’s head in”, and she refers to a series of texts (B237). However the texts referred to make no reference to either the incident or threat; and Oliver Bell and David Hall deny being informed of the incident.

[94]Conclusions -In respect of this alleged disclosure there is no evidence before me that it ever occurred, or if it did what was disclosed; and it is impossible to make any basic findings of fact as to those matters, which in my judgement is fatal to this claim, in and of itself. For completeness sake it would also not involve in my view, for the reasons already given, any allegation of a breach of any legal obligation on the part of the respondent.

[95]Allegation 13 (2.1.1.3) - On 18 November, a child stood up, banged the class door and then barred the Claimant and her class within it. Later, the child locked himself and another in the classroom [27]; ---22---

[96]This incident is referred to at para 27 of the claimant’s witness statement in which she gives a detailed account of the incident itself, but makes no reference to any disclosure or to whom it was made. She refers to some members of staff following the child. It was allegedly reported to David Hall and Liz Hopewell who both recall the incident; and Gina Searle who has no recollection of being aware of it.

[97]This is another example of an incident in respect of which the claimant provides no evidence of what was disclosed to whom, or when.

[98]Conclusions – There is no evidence before me of any disclosure in relation to this incident ; and it is impossible to make any basic findings of fact as to those matters, which in my judgement is fatal to this claim. For completeness sake it would also not involve in my view, for the reasons already given, any allegation of a breach of any legal obligation on the part of the respondent

[99]Allegation 14 - On 20 November, the Claimant discovered a child in her class may have had epilepsy. But information had not been passed to her by management [29];

[100]The claimant alleges that she was informed by the TA in her class that the child in question was exhibiting signs of epilepsy, and that he had previously been diagnosed with epilepsy. She “immediately sought out Mr Bell to discuss the matter”. She asserts that she asked OB who confirmed that this was correct. The claimant asserts that she complained about not being informed about this, and asserted that this was a serious safeguarding issue.

[101]Mr Bell’s evidence was different He recalled the incident and recalled the claimant speaking to him. The child in question had previously been diagnosed as epileptic and been prescribed medication. However that diagnosis and the medication had been withdrawn, and there was in fact no requirement to disclose the diagnosis because it no longer applied. There had therefore been no safeguarding issue, or the compromise of the child’s safety.

[102]This raises a straightforward and significant conflict of evidence. If I accept Mr Bell’s evidence, it follows that the claimant’s evidence is at best disingenuous as she makes no reference to being informed that the diagnosis had been changed and the medication withdrawn. If she was informed of this she could not have made any disclosure about any safeguarding issue as none arose. If however I accept the claimant’s evidence that the only information provided by Mr Bell was that that the information she had been given by the TA was correct without any qualification; any assertion by the claimant that she should have been informed and that the issue raised safeguarding concerns makes perfect sense. If Mr Bell did add the extra information then it does not, and she cannot have made any such assertion. If Mr Bell’s evidence is correct, in reality the claimant was not disclosing anything, but simply requesting information which he provided.

[103]Conclusions – In my judgment the arguments in respect of this allegation are more finely balanced. Clearly if the claimant is correct this is an instance in which ---23--- she disclosed both the factual information as to the child being diagnosed with epilepsy, and her not being informed of it, which is at least implicitly, and in my view certainly arguably information tending to show a breach on the part of the respondent. The disclosure that the claimant had not herself been informed of a significant health risk involving a child in her class is clearly capable of at least implicitly involving an assertion of a breach of a legal obligation, in that the respondent would of necessity have an obligation to provide her with all relevant information.

[104]If, on the other hand Mr Bell is correct, then she was not disclosing information, but seeking information about something she had been told, but in respect of which she had no personal knowledge. Secondly if Mr Bell is correct the information she was provided to her and demonstrated that there was no safeguarding issue; and she cannot have made any disclosure that there was.

[105]It follows that this allegation will be determined by whose evidence prefer; and on balance I accept and prefer the evidence of Mr Bell; and I am not satisfied on the balance of probabilities that the claimant made the disclosure she alleges.

[106]Allegation 15 - On 22 November, a child refused to attend the Claimant’s class but kicked a football in the playground instead. His behaviour deteriorated and he began to run in and out of the Claimant’s class whilst she was attempting to teach.

[107]In the claimant’s witness statement she describes this incident and the incident progressing and escalating. She asserts that the recipients of the disclosures were Liz Hopewell, David Hall and Theresa Gee; although she gives no evidence of what she disclosed and when to each of them. Mr Hall and Ms Hopewell deny having any knowledge of this or being informed about it, and Ms Gee does not refer to it.

[108]Conclusions – In my judgement this is another allegation in respect of which it is simply not possible to make any finding of fact about what was disclosed to whom and when. Equally, and again, the claimant does not suggest that she made any specific disclosure beyond the allegations about the behaviour of the pupil himself.

[109]Overall Conclusions – For the different reasons given above in respect of each of the alleged disclosures, I have not been able to identify any disclosure which isa qualifying/protected disclosure within the meaning of s43B; and it follows that the public interest disclosure detriment claims are bound to be dismissed. Time Limits –

[110]Public Interest Disclosure Detriment Claims - Given that I have not concluded that any of the alleged disclosures are qualifying/protected disclosures, it is not necessary to determine any time limit points in relation to th public interest disclosure detriment claims. ---24---

[111]However for completeness sake I will briefly set out what my concisions would have been. Three of the alleged detriments (3.1.13 – 15) in the List of Issues are necessarily in time in any event, and would have proceeded to final hearing, as they are alleged to have occurred between 4th and 20th July 2023.

[112]The issue would have been whether they were arguably part of a continuing act with the earlier allegations. Allegation 3.1.12 could not be pursued in any event as the evidence in respect of it is inadmissible. Allegations 3.1.1- 11 are allegations of detriment between 10th October and 20th November 2022. It follows that there is approximately an eight month gap between the two sets of allegations, and there is no obvious factual link between the two sets of allegations.

[113]The claimant contends that she was dealing with significant personal issues including the death of her grandmother and ill health. However she was able to lodge a grievance on 26th April 2023; which strongly suggests that there cannot have been any impediment to her lodging a tribunal claim then if not earlier;, and the claimant accepted in evidence that she chose not to bring the claims at the time when she had trade union representation, and although off sick has not contended that there was any impediment to her bringing the claims earlier.

[114]As the test for the tribunal in respect of these claims is that of reasonable practicability, and if they were not part of a continuing act they were necessarily out of time, in the circumstances I would have concluded that the earlier claims had been brought out of time and there was no basis for extending time in respect of them.

[115]Harassment Related to Sex (s26 Equality Act 2010) – The respondent asserts that any claim relating to acts occurring before 23rd March 2023 (24th March according to EJ Livesey’s calculation as set out in the CMO but the difference io no significance in this case) is on the face of it out of time. All of the complaints of harassment are made against Mr Bell and are alleged to have occurred between September and November 2022. It follows that even if they can arguably be considered a continuing act as they are all allegations of a similar nature made against the same person, which I will assume to be the case for the purposes of this decision, that they are necessarily out of time However these allegations were not raised internally with the school until May 2023 on the claimant’s account, or July 2023 on the respondents, and at either point they were all already out of time. During this period the claimant was in regular discussion with the school and was represented by her trade union, and had lodged a grievance in April 2023.. The decision not to raise them until May 2023 is therefore a choice made by the claimant, as she accepted in evidence.

[116]The claims are on any analysis out of time and he question for the tribunal is therefore whether it is just and equitable to extend time. Without rehearsing the well-known authorities as to the exercise of the discretion, the discretion is a broad one, and fundamentally the tribunal must assess where the balance of hardship/prejudice lies in either granting or refusing the application, and the tribunal ---25--- is required to set out the factors it has taken into account in coming to its conclusions.

[117]There appear to me in this case a number of factors to be taken into account: i) If the application is not granted none of the claims will proceed to hearing and the claimant may be kept out of what are well founded underlying claims. This is not a case where some allegations are in time and will be proceeding in any event; ii) The delay is a matter of months; iii) At a time when she had trade union representation and was aware of the time limits, the claimant made a choice not pursue these allegations either internally, or more pertinently for my consideration, externally in the tribunal; iv) There is no documentary evidence to support or contradict the allegations, and whilst some are accepted to have occurred factually (for example assisting the claimant in typing a chapter of a book) the context and basic facts of many are in dispute and will be determined by the oral evidence.

[118]The respondent submits that where a party with the assistance of a skilled representative has made a conscious decision not to bring a claim within the time limits, it is either simply not open to her simply to ignore those time limits and subsequently bring a claim; or alternatively that that is a very powerful reason for not exercising the discretion in her favour. Seconfdly, it is grossly unfair for Mr Bell to have to face potentially career ending allegations when they have been presented out of time by the claimant’s choice, and in respect of which there is no contemporaneous complaint, even internally, which would have allowed him the opportunity to meet them at the time.

[119]The claimant does not dispute that she “.. made a conscious choice not to pursue the claims immediately..” (C ‘s response to R’s Submissions para 26); She accepts that the decision was not made due to ignorance or a mistaken belief about the time limits (para 27); but contends that it “was a reasonable decision in the circumstances” (para 27); and she relies on the guidance in Lowri Beck Services v Brophy [2019] EWCA. The difficulty for the claimant is that that was a case concerning the extension of time under the reasonable practicability test, and that it concerned the question of the extension of time where a severely dyslexic claimant had delegated responsibility to his non -legally qualified brother and had not informed him that he had been dismissed. It does not appear to me to have any bearing on the issue of whether it is just and equitable to extend time for an individual acting with the assistance of a skilled advisor who accepts that she was aware of the time limits and made a conscious decision not to bring a claim in time.

[120]This case is in my judgement and experience, extremely unusual if not unique, in that the claimant does not dispute that she “.. made a conscious choice ---26--- not to pursue the claims immediately..” In order to extend time in those circumstances the reasons for doing so would need, in my judgement, to be extremely powerful. Curiously, in her witness statement the claimant firstly asserts that her claims are in fact in time; and then goes on to set out the personal difficulties set out above. She does explicitly advance any evidence as to why she chose not to bring the claims in time, or why it was reasonable of her to do so.

[121]In my judgement there is at least insufficient evidence of the proposition that it was reasonable to ignore time limits of which the claimant was aware, to persuade me that it is just and equitable to extend time. I also accept that, for the reasons summarised above, that in the circumstances the balance of prejudice favours the respondent in that whilst the delay is relatively short it does cause prejudice and is the result of a conscious choice made by the claimant.

[122]It follows that the harassment claims were submitted out of time, and as it is not just and equitable to extend time, that they must be dismissed.

[123]Admissibility of Without Prejudice communications – As, for the reasons given above the public interest disclosure claims cannot be pursued this has become somewhat academic. However in the interests of completeness I will determine the issue.

[124]This dispute refers to communications on at a meeting on 11 April 2023. The claimant alleges that the respondent made an offer of settlement which she rejected ”because I was concerned about the self-regulation and safeguarding and Child Protection” (Grounds para 8). She does not dispute that they were ”initially intended to be without prejudice” (WS para 43), but contends that the evidence as to the content of the discussions should be admitted, the primary reason being “the overriding public interest in in safeguarding children” (WS para 43).

[125]The respondent submits that there is no dispute that these were without prejudice discussions and that they are therefore inadmissible unless one of the exceptions applies (See Unilever plc v Proctor and Gamble Co

2000 1WLR 2436

(CA)). One of the exceptions is ”unambiguous impropriety”, and the respondent submits that there is no allegation of any impropriety on behalf of the respondent, but rather the claimants belief that if she settled the claim her allegations would not be aired publicly, which is a perfectly reasonable basis for not settling but does not either explicitly or implicitly suggest that there was anything improper in the respondent seeking to settle the dispute. None of the other recognised exceptions apply, or are alleged to apply. The claimants assertion that the evidence should be admitted because of the public interest in safeguarding children is firstly not a recognised exception; and secondly misunderstands the nature of employment tribunal proceedings which are to resolve private party and party disputes and are not public enquiries; and thirdly is not necessary for that purpose given that the claimant is and has been able to place in the public domain all of her allegations in any event. ---27---

[126]In my judgement the respondent must be correct in these submissions and I can see no basis upon which this evidence could be admissible.

[127]Victimisation – It is accepted that the two protected acts relied on (LoI para 5.1.1 /2 ) are protected acts; and the detriments relied on are delaying the acknowledgement of the appeal; and delaying her appeal hearing, both of which are in time. It follows that subject the application discussed below there is nothing to prevent them from proceeding to final hearing.

[128]The respondent contends that these claims have no reasonable prospect of success, and on any basis little reasonable prospect of success. In respect of the former as the hearing was not listed to consider striking out any of the claims it is not possible to make any such order at present.

[129]The claimant simply submits that it is not possible without hearing evidence to determine whether the detriments occurred, and whether there is any causal link between any protected act and any detriment. It follows that these claims are simply not susceptible to a deposit order and should proceed to final hearing.

[130]In my judgement the claimant is correct in these submissions and it follows that the victimisation claims will proceed to final hearing. Directions –

[131]The parties are directed to notify the tribunal within 14 days of the date on which this Judgment is sent to the parties; i) How many witnesses they intend to call for the hearing of the victimisation allegations alone; ii) A time estimate for that hearing; iii) Draft directions for the hearing; iv) Inconvenient dates for the period September 2025 – April 2026.