Mrs C Clark v Dr Kumutasa and Dr Williams (a Partnership) T/a Gardden Road Surgery: 1600163/2023

EMPLOYMENT TRIBUNALS

Case No 1600163/2023

Between

Mrs C ClarkClaimant

Dr Kumutasa and Dr Williams (a partnership) t/a Gardden Road Surgery RECORD OF A PRELIMINARY HEARINGRespondent

Before

Employment Judge S Moore

In person for claimant

Date 13 September 2024

JUDGMENT

BY CONSENT The claimant was a disabled person within the meaning of section 6 Equality Act 2010 at the material time. RESERVED JUDGMENT

[1]The complaint of “ordinary” unfair dismissal is well-founded. The Claimant was constructively unfairly dismissed.

[2]The complaint of “automatic” unfair dismissal (that the reason or principal reason for dismissal was that the Claimant made a protected disclosure) is not well founded and is dismissed.

[3]The complaint of breach of contract in relation to notice pay is wellfounded. The Claimant was constructively wrongfully dismissed.

[4]The complaint of being subject to detriment for making a protected disclosure in respect of the complaint about, in January 2022, not taking action against GW was not presented within the applicable time limit. It was reasonably practicable to do so. That complaint (which would otherwise have been well-founded) is therefore dismissed.

[5]The remaining complaints of being subject to detriment for making a protected disclosure are not well-founded and are dismissed.

[6]The complaints of direct disability discrimination detriment and direct age discrimination detriment are not well-founded and are dismissed.

[7]The following complaints of harassment related to disability and age are well-founded, were part of an overall act extending over a period such as to be in time and succeed:a. In March 2021 GW sharing with RB the message from the practice accountant;

b. GW’s inappropriate messages about the Claimant (as detailed below) which the Claimant found out about in December 2021.

[8]The remaining complaints of harassment related to disability and age are not well-founded and are dismissed.

[9]The following complaints of unfavourable treatment because of something arising in consequence of disability are well-founded, were part of an overall act extending over a period such as to be in time and succeed:a. In March 2021 GW sharing with RB the message from the practice accountant;

b. GW’s inappropriate messages about the Claimant (as detailed below) which the Claimant found out about in December 2021.

[10]The remaining complaints of being unfavourable treatment because of something arising in consequence of disability are not well-founded and

[11]The following complaints of victimisation are well-founded, were part of an overall act extending over a period such as to be in time and succeed:a. In January 2022 failing to take action in respect of GW;

b. In November 2022 failing to recognise that in substance parts of the Claimant’s grievance had been upheld and to take action.

[12]The remaining complaints of victimisation are not well-founded and are

[13]The complaint in respect of holiday pay is well-founded. The Claimant was entitled to carry forward the Regulation 13 element (but not the Regulation 13A element) of her accrued but untaken annual leave from the previous leave year and to then be paid the appropriate sum on termination of employment. The Respondent failed to pay the Claimant the appropriate sum.

[14]The successful complaints will be listed for a remedy hearing.

REASONS

The Issues

[1]Introduction1.1 This is a case alleging constructive unfair dismissal/ “automatic” constructive unfair dismissal (protected disclosure), direct disability discrimination, direct age discrimination, discrimination arising from disability, disability related harassment, age related harassment, detriment on the grounds of making a protected disclosure, and a claim for notice pay and unpaid holiday pay. The Claim Form was presented on 26 January 2023.

1.2 An ET3 Response Form was filed denying the complaints. There was a case management hearing before Employment Judge Povey on 31 May 2023. There was a further case management hearing before Employment Judge Moore on 20 September 2023, by which time the Respondent had conceded the Claimant was disabled by reason of anxiety and depression at the relevant time. Employment Judge Moore prepared and appended to the case management orders a List of Issues for the final hearing, for the Claimant to approve. The Respondent was directed to file amended grounds of resistance. EJ Moore also encouraged the Claimant to seek some legal advice before confirming her claims, including whether she intended to advance a whistleblowing claim. The Claimant did not disagree with the List of Issues but made an application to amend to add complaints of protected disclosure detriment and automatic constructive dismissal. The Claimant also applied to add a new discrimination complaint about sick pay.

1.3 At a further case management hearing on 1 November 2023 EJ Moore granted permission to amend. The Respondent was directed to file amended grounds of resistance addressing the complaints as further clarified. EJ Moore also updated the List of Issues [65- 75]. There was a case management hearing with Employment Judge Ryan on 19 February 2024 where there were outstanding issues regarding the finalisation of the hearing file and exchange of witness statements. The parties confirmed to EJ Ryan that the List of Issues remained correct and appropriate.

1.4 The final hearing took place by video on 4, 5, 6, 8, 11, 12 and 13 March 2024 (with 7 March as a rest day for the Claimant).

1.5 We had before us a hearing file extending to 398 pages. We then had a supplementary hearing file with page numbers 399 to 444. During the course of the hearing we then admitted additional pages numbers 445 to 450. We had a cast list and a chronology. We treated the chronology with some caution as it appears to contain matters of disputed evidence (inserted by both parties), some of which did not appear to be within the written witness statements. A chronology is supposed to be a short, neutral, accessible document concentrating on the key dates of key events. It is not a vehicle for asserting disputed matters of evidence.

1.6 During the course of the hearing we heard evidence from the Claimant and her witnesses Jamie Maddox (JM), Michelle Edwards (ME) and Thomas Collinge (TC). For the Respondent we heard evidence from Dr Kamutasa (CK), Dr Williams (GW), Rachel Barnes (RB) and Sushila Manilal (SM).

1.7 Late on the evening of 3 March 2024 the Respondent made an application that the Claimant’s witness, TC, be excluded from the hearing other than when TC was giving his evidence. We dealt with that application in private as a case management point at the start of the hearing, including hearing from TC himself. TC and GW were formerly in a relationship. Both now say that the other was abusive, controlling and coercive. The application in essence was made on the basis that GW would be intimidated by TC’s presence and may not be able to attend the hearing, or give her best evidence/instructions if TC was present. GW had obtained a non-molestation order that we were given a copy of. The non-molestation order was made by consent and clearly states that no findings of fact had been made. GW also relied on the fact that TC had been prosecuted. TC was acquitted at trial. GW says that she was let down in the prosecution process. These are not matters about which we could, or needed to make findings about. But we had to balance the parties and TC’s competing rights. We ultimately directed that TC was to join by audio connection only (so he could not see GW or be seen by her) and under the name on screen of Mr AB. This was only when TC was observing. When TC gave his evidence he was viewable on screen and his proper name was used. In essence we considered that this arrangement best replicated what would happen in a physical court room with the use of screens and other such measures. We considered that it best preserved GW’s ability to attend and participate in the proceedings, which was important bearing in mind she is a Respondent and GW was able to do so. The arrangement also allowed the Claimant’s witness to view the proceedings. The latter was both in pursuit of open justice and to allow the Claimant to liaise with TC if he had relevant information to give her during the course of the hearing.

1.8 On 5 March the Claimant sent 14 emails with various attachments containing additional material she wished to add in a supplementary hearing file. The Claimant was directed to liaise in the first place with Mr Fakunle as to whether the Respondent consented to any of the documents being added. If agreement could not be reached the Claimant was directed to make a written application with the disputed documents in one attachment. On 8 March the Claimant then made an application to add 6 additional documents. We heard submissions from both parties. We deliberated and gave oral reasons at the time, allowing in by way of further evidence 3 additional documents and refusing the other 3. The parties are able to request written reasons in writing within 14 days. It had also come to light that there were 3 documents appended to TC’s witness statement that we did not have and were not in the hearing file. These 3 documents, together with the 3 new documents we admitted from the Claimant, became the additional pages 445 – 450 in the hearing file.

1.9 On 13 March TC tried to send us additional material during closing submissions, albeit we did not receive the emails until after the event. We copied TC’s contact to both parties. We stated that as it was contact from a witness we were not intending to do anything with the emails or their content. We stated that if either party had an application to make relating to the contact or the content they should do so by 21 March. We received no such application. TC was also advised that we could not accept material in that way from a witness. Also on 13 March one of the Respondent’s witnesses, SM, attempted to connect on Linked In with Mr Greenland. Again, we wrote to both parties to inform them of the contact and to state that it was not acceptable for any party or witness to seek to contact or connect with a member of the Tribunal panel in that way. The parties were asked to note that contact of the type attempted by SM, particularly when a case had not concluded, was at risk of being considered to be a contempt of court.

1.10 On 13 March we had heard the Respondent’s closing submissions but were not, in the time allowed, able to fully complete the Claimant’s closing submissions so we reconvened on 12 April 2024 to do so. During the course of the Respondent’s closing submissions the Respondent made an application to amend their ET3 Response to include a defence of objective justification for some of the discrimination arising in consequence of disability complaints. The Claimant objected to the application. We indicated that we would make a decision about the application during our deliberations and our decision, where relevant, is set out below.

1.11 Following the hearing on 12 April the Respondent sought, by way of email, to adduce further evidence relating to the date there were changes to the phone system (and whether it was done by SM) which Mr Fakunle said was information that SM had attempted to text him about during the closing submissions but he had not picked up the message. This led to both parties sending further emails to the Tribunal. Our position is that closing submissions are not a vehicle by which either party can adduce new evidence. That applies equally to the Claimant as it does to the Respondent. We were mindful in our deliberations to only evaluate the case on the evidence before us by way of witness statements, oral witness evidence and the documents in the hearing file about which the parties had the opportunity to give evidence, and be challenged in cross examination, under oath.

1.12 We had deliberation time on 12 April after the completion of closing submissions but were unable to complete our deliberations. We had a further day for deliberations on 24 April. We had a further afternoon of deliberations on 25 April and a morning of deliberation time on 26 April. We then completed our deliberations in a further day on 30 April 2024.

1.13 Employment Judge Harfield apologises for the delay in producing this Reserved Judgment which has been caused by the pressure of other judicial work.

[2]The legal principles Protected Disclosure2.1 Under section 43A Employment Rights Act 1996 (“ERA”), a worker makes a protected disclosure in certain circumstances. To be a protected disclosure, it must be a qualifying disclosure. A qualifying disclosure must fall within section 43B ERA and also must be made in accordance with any of sections 43C to 43H. Section 43B says: “(1) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(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.”

2.2 Under Section 43C such a disclosure will qualify for protection if made to the claimant’s employer. Whistleblowing/ Protected Disclosure detriment

2.3 Under Section 47B(1) a worker has the right not to be subjected to any detriment by any act, or deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. Under section 47B(2) the section does not apply where the detriment in question amounts to a dismissal within the meaning of Part X (because dismissals are governed by Section 103A within Part X ERA).

2.4 There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment (see Jesudason v Alder Hey Children’s NHS Foundation Trust

[2020] EWCA Civ 713

applying Derbyshire v St Helens MBC

[2007] UKHL 16

and Shamoon v Chief Constable of Ulster Constabulary

[2003] ICR 33

2.5 There must be a link between the protected disclosure or disclosures and the act (or failure to act) which results in the detriment. Section 47B requires that the act should be “on the ground that” the worker has made the protected disclosure. In Manchester NHS Trust v Fecitt

[2011] EWCA 1190

it was said “section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistle-blower.” This is a “reason why” test. The Tribunal has to look at why (consciously or unconsciously) the decision maker acted as he or she did. It was said in Jesudason that: “Liability is not, therefore, established by the claimant showing that but for the protected disclosure, the employer would not have committed the relevant act which gives rise to a detriment. If the employer can show that the reason he took the action which caused the detriment had nothing to do with the making of the protected disclosures, or that this was only a trivial factor in his reasoning, he will not be liable under Section 47B.” Protected disclosure constructive dismissal

2.6 Section 103A ERA provides: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

2.7 When asking what was the reason or principal reason for a dismissal it is again a “reason why” question. In Price v Surrey County Council and the Governing Body of Wood Street School [2011]

UKEAT/0450/10/SM

it was said: “Thus it is the “making” of the protected disclosure which is the focus of attention, and which must be the principal reason for the dismissal…In this case, by contrast, Mrs Price’s forced resignation came about, not because of the making of her complaint as such, but because of the inadequacy in one important respect of the authorities’ response to it.”

2.8 In a constructive dismissal protected disclosure case it is important to remember that the focus is on the employer’s reasons for their conduct and not the employee’s reaction to that conduct. In Salisbury NHS Foundation Trust v Wyeth

UKEAT/0061/15/JOJ

the Employment Appeal Tribunal applied Berriman v Delabole Slate Ltd

[1985] ICR 546

CA and said: “In such a case, the ET will have identified the fundamental breaches of contract that caused the employee to resign in circumstances in which she was entitled to claim to have been constructively dismissed. Where no reason capable of being fair for section 98 purposes has been established by the employer, that constructive dismissal will be unfair. Where, however, the reason remains in issue because there is a dispute as to whether it was such as to render the dismissal automatically unfair, the ET then has to ask what was the reason why the Respondent behaved in the way that gave rise to the fundamental breaches of contract? The Claimant’s perception, although relevant to the issue why she left her employer (her acceptance of the repudiatory breach), does not answer that question.” Protected disclosure - burden of proof

2.9 Where a claimant has established that there has been a protected disclosure and she has suffered a detriment, it is for the employer to show that the detriment was not because of the disclosure; that is, that the disclosure did not materially influence - in the sense of being more than a trivial influence - the employer's treatment of the Claimant (see Fecitt).

2.10 In a protected disclosure unfair dismissal claim, the employer bears the burden of proof of showing the reason for the dismissal. Where an employee disputes the reason given by the employer, an evidential burden arises to cast some doubt on the employer’s reason. The employee has to demonstrate some evidential basis for questioning the employer’s reason. The stages as explained by the Court of Appeal in Kuzel v Roche Products Ltd are: (a) has the claimant shown that there is a real issue as to whether the reason put forward by the respondent was not the true reason? (b) if so, has the employer proved the reason for dismissal? (c) If not, has the employer disproved the section 103A reason advanced by the claimant? (d) if not, dismissal is for the section 103A reason. However, if the employer does not show to the satisfaction of the Tribunal their asserted reason, it does not follow that the Tribunal is obliged to find the reason is as put forward by the claimant. That said, the Employment Appeal Tribunal also endorsed the proposition that in practice in many cases the Tribunal can make findings of fact about what was operating in the mind of the decision makers and therefore, in practice, only a small number of cases will ultimately turn upon a burden of proof analysis. “Ordinary” Constructive Unfair Dismissal

2.11 Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is dismissed by his employer if: “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

2.12 Case law has established the following principles: (1) The employer must have committed a repudiatory breach of contract. A repudiatory breach is a significant breach going to the root of the contract. This is the abiding principle set out in Western Excavating v Sharp

[1978] ICR 221

. (2) A repudiatory breach can be a breach of the implied term that is within every contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee (Woods v WM Car Services (Peterborough) Ltd

[1981] IRLR 347

and Malik v Bank of Credit and Commerce International SA

1997 ICR 606

, HL.) (3) Whether an employer has committed a breach of that implied term must be judged objectively. It is not enough to show merely that an employer has behaved unreasonably. The line between serious unreasonableness and a breach is a fine one. A repudiatory breach does not occur simply because an employee feels or believes they have been unreasonably treated. (4) The employee must leave, in part at least, because of the breach. However, the breach does not have to be the sole cause, there can be a combination of causes provided an effective cause for the resignation is the breach; the breach must have played a part (see Nottingham County Council v Meikle

[2005] ICR 1

and Wright v North Ayrshire Council

UKEAT/0017/13

). (5) There can be a breach of the implied term of trust and confidence where the components relied upon are not individually repudiatory but which cumulatively consist of a breach of that implied term. (6) In appropriate cases, a “last straw” doctrine can apply. This states that if the employer's act which was the proximate cause of an employee's resignation was not by itself a fundamental breach of contract the employee can rely upon the employer's course of conduct considered as whole in establishing she was constructively dismissed. However, London Borough of Waltham Forest v Omilaju

[2005] IRLR 35

tells us that the “last straw” must contribute, however slightly, to the breach of trust and confidence. The last straw cannot be an entirely innocuous act or be something which is utterly trivial. Moreover, the concepts of a course of conduct or an act in a series are not used in a precise or technical sense; the act does not have to be of the same character as the earlier acts. (7) In Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

the Court of Appeal set out the questions that the tribunal must ask itself in a “last straw” case. These are: (a) What was the most recent act (or omission) on the part of the employer which the employee says caused or triggered his or her resignation? (b) Has he or she affirmed the contract since that act? (c) If not, was that act (or omission) by itself a repudiatory breach of contract? (d) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which viewed cumulatively amounted to a (repudiatory) breach. (e) Did the employee resign in response (or partly in response) to that breach? (8) If the most recent conduct (or the matter pleaded as the “last straw”) is not, in the tribunal’s determination, capable of contributing to a breach of the implied term, the tribunal must then go back and consider whether earlier complaints constituted such a breach (and potentially if so whether affirmation is in play): Williams v Governing Body of Alderman Davies Church in Wales Primary School

UKEAT/0108/19

. (9) Where the employer is in fundamental breach of contract the employee may elect to accept the breach as bringing the contract to an end or treat the contract as continuing and require the employer to continue to perform the contract. This is termed affirmation. Where the employee affirms they will lose the right to treat employer’s conduct as having brought the contract to an end unless there is further relevant conduct that revives the earlier breach(es). Affirmation may be express or may be implied/inferred from conduct. (10) Mere delay in communicating a decision to accept the breach as bringing the contract to an end will not, in the absence of something amounting to express or implied affirmation, amount in itself to affirmation. But a prolonged or significant delay can potentially give rise to implied affirmation because of what happened during the period in question. In particular, if the employee acts in a way that is consistent only with the contract continuing, that may be liable to be treated as evidence of implied affirmation. Examples may be the employee proactively carrying out work duties, or the acceptance of significant performance by the employer by the way of payment of wages. However, if the employee communicates that she is considering and in some sense reserving her position, or makes attempts to seek to allow the other party some opportunity to put right the breach, before deciding what to do, then some performance of the job functions or the drawing of pay will not necessarily amount to affirmation. Each case turns on its own facts.

2.13 If it is established that the resignation meets the definition of a dismissal under section95(1)(c), the employer has the burden of showing a potentially fair reason for dismissal before the general question of fairness arises under section 98(4). Breach of Contract / notice pay

2.14 The Tribunal has jurisdiction to hear breach of contract claims under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (with some exceptions) where the claim arises or is outstanding on the termination of the employee’s employment. A claim must be presented (in the sense at least of commencing Acas early conciliation) within 3 months beginning with the effective date of termination of the contract giving rise to the claim.

2.15 It is not in dispute that if the claimant succeeds in her constructive unfair dismissal complaint, she will also succeed in a constructive wrongful dismissal complaint (having resigned without notice). We therefore say no more about the relevant legal principles in that regard. Direct age and/or disability discrimination

2.16 Section 13(1) of the Equality Act provides: "(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."

2.17 Disability and age are protected characteristic. Age is a protected characteristic and section 5 says that a reference to person who has a particular protected characteristic is a reference to a person of a particular age group. A reference to an age group is then said to be a reference to a group of person defined by reference, to age, whether by reference to a particular age or a range of ages.

2.18 Unlike other protected characteristics, it is possible for a respondent to justify direct age discrimination by showing the treatment is a proportionate means of achieving a legitimate aim.

2.19 The concept of treating someone “less favourably” inherently requires some form of comparison. Section 23 provides that when comparing cases for the purpose of Section 13: “there must be no material difference between the circumstances related to each case.”

2.20 Section 13 requires that two matters be established. The first is that there has been treatment of the particular claimant which is less favourable than the treatment that was meted out, or would have been meted out, to a comparator. The second is that the less favourable treatment was because of the protected characteristic.

2.21 In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

, the House of Lords said it is often helpful to concentrate on the “reason why” question when considering a complaint of direct discrimination. Why did the alleged discriminator act as he did? What, consciously or unconsciously, was the alleged discriminator’s reason? This question is sometimes less legally complex than the task of identifying a comparator whose circumstances are materially the same, for the purposes of section 23, and the answer to it will often determine the claim.

2.22 In other cases it can be helpful to consider the "comparator" question. An actual comparator exists when there is a known, identified individual who does not have the protected characteristic, and there is no material difference between the circumstances relating to the claimant's case and the comparator's case. A tribunal may also consider how a hypothetical comparator in a similar (i.e. not materially different) position to the claimant, but who does not have the protected characteristic, would have been treated. A tribunal may also take account of the way in which the respondent treated other individuals who may be in more different situations but still have some similarities; often referred to as evidential (rather than statutory) comparators. The purpose is to use such comparators as an evidential tool to see whether an inference of discrimination is justified.

2.23 In order to satisfy the “because of” test, it is not necessary for the protected characteristic to be the whole of the reason, or even the principal reason, for the treatment. In Nagarajan v London Regional Transport

[1999] ICR 877

Lord Nicholls said (the case was a race discrimination case but the point applies to any protected characteristic): “Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others…If racial grounds…had a significant influence on the outcome, discrimination was made out.” Harassment related to age and/or disability

2.24 Section 26 of the Equality Act defines harassment as: (1) A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B… (4) In deciding whether conduct has the effect referred to in subsection 1(b), each of the following must be taken into account – (a) the perception of B; (b) the circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

2.25 Conduct cannot be both harassment and direct discrimination by way of subjecting a person to detriment; see Section 212 Equality Act.

2.26 In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

the Employment Appeal Tribunal (“EAT”) set out a three-step test for establishing whether harassment has occurred:

• was there unwanted conduct;

• did it have the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them; and

• was it related to a protected characteristic.

2.27 The tribunal must consider both whether the claimant considers themselves to have suffered the effect in question (the subjective question) and whether it was reasonable for the conduct to be regarded as having that effect (the objective question). The tribunal must also take into1 account all the other circumstances. The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for them, then it should not be found to have done so.

2.28 A claimant must be aware of the unwanted conduct for it to amount to harassment because the perception of the claimant is a mandatory component of Section 26: Greasley-Adams v Royal Mail Group Ltd

[2023] EAT 86

2.29 In Grant v HM Land Registry

[2011] IRLR 748

the Court of Appeal reiterated that when assessing the effect of a remark, the context in which it is given is highly material. A tribunal should not cheapen the significance of the words “intimidating, 1 During the course of the hearing Mr Fakunle asked EJ Harfield what the date of harassment would be in circumstances where the Claimant learned of the conduct after the event. It was an off the cuff exchange made without the benefit of reference to authorities or to legal submissions by Mr Fakunle. EJ Harfield commented she thought it would be the date of the conduct. EJ Harfield has since become aware of the Greasley-Adams case which would suggest that the act of harassment is not complete until the individual knows about the conduct. It is a point that is not likely to affect the overall analysis in this case but is mentioned here for completeness and transparency. hostile, degrading, humiliating or offensive” as they are an important control to prevent trivial acts causing minor upset being caught up in the concept of harassment. The Court of Appeal also said: “It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable.” In Betsi Cadwaladr University Health Board v Hughes [2014]

UKEAT/0179/13

it was also said by the EAT: “The word violating is a strong word. Offending against dignity; hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence.”

2.30 The phrase “related to” a protected characteristic in a harassment complaint is a different, broader test from whether the conduct is “because of” a protected characteristic in a direct discrimination complaint. But it does have its limits. The conduct complained about must still relate to the protected characteristic, which is a matter for the tribunal to determine based on all the facts as found. It was said in Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and Heads

UKEAT/0039/19

the “related to” test may be satisfied by looking at the motivation of the individuals concerned but it is not the necessary or only possible route. It was also said: “Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be.” Victimisation

2.31 Section 27 of the Equality Act 2010 provides: “27 Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.”

2.32 A protected act involves bringing proceedings under the Equality Act, or giving evidence or information in connection with such proceedings, or doing any other thing for the purposes of or in connection with the Equality Act, or making an allegation (whether or not express) that a person has contravened the Equality Act.

2.33 Whether treatment is a “detriment” is established by asking whether the treatment is of a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment. It is not necessary to establish any physical or economic consequence. The assessment by reference to a reasonable worker means that an unjustified sense of grievance will not pass the test.

2.34 There must be a link between the protected act and the detriment; the claimant must be subjected to a detriment because the claimant did the protected act. Here the tribunal has to ask itself whether the protected act had a significant influence on the outcome. This does not mean it necessarily has to be the main or principal cause. Again this “reason why” analysis involves an examination of the mental processes, conscious or unconscious of the decision maker in question. It is not a “but for” test.

2.35 In A v Chief Constable of West Midlands Police

UKEAT/0313/14/JOJ

Mr Justice Langstaff said: “…The right to complain of victimisation is designed to protect those who genuinely make complaints. They may not be made in bad faith. The act has to relate to a protected characteristic once such an act is done. The effect of the section is, as it were, to place complainants in a protective bubble. They may not be penalised. The response of the person to whom the complaint is made may not be such as to treat the person adversely. Though the wording of section 27 suggests that “subjecting to a detriment” may be by positive act, Miss Banton submits, and I accept, that it may also arise by an omission to act. But omissions to act must be carefully scrutinised in this regard. The purpose of the victimisation provision is protective. It is not intended to confer a privilege upon the person within the hypothetical bubble I have postulated, for instance by enabling them to require a particular outcome of a grievance or, where there has been a complaint, a particular speed with which that particular complaint will be resolved. It cannot in itself create a duty to act nor an expectation of action where that does not otherwise exist. 22. It follows that in some cases - and I emphasise that the context will be highly significant - a failure to investigate a complaint will not of itself amount to victimisation. Indeed there is a central problem with any careful analysis and application of section 27 to facts broadly such as the present. That is that, where the protected act is a complaint, to suggest that the detriment is not to apply a complaints procedure properly because a complaint has been made, it might be thought, asks a lot and is highly unlikely. The complaints procedure itself is plainly embarked on because there has been a complaint: to then argue that where it has not been embarked on with sufficient care, enthusiasm or speed those defects are also because of the complaint itself would require the more careful of evidential bases. 23. Here, therefore, there was significant work to be done, one might think, to get a victimisation claim off the ground where the essential complaint was that the Force narrowed the scope of the complaint because the Claimant had made a complaint. Put that way, it is not very promising. It might be different in some circumstances. An example might be if the particular nature of the complaint meant that it would not be discussed or dealt with in a way in which other complaints of a different nature would. For instance, if a particular employer found the prospect of dealing with a complaint of sexual harassment embarrassing to the extent that it took no action on such a complaint when otherwise it would have a duty to do so, or there was a well-established expectation that the complaint would be dealt with, it is in my view possible that a Tribunal might conclude that the omission to act, if it caused the victim of the alleged harassment a detriment in terms of the particular effects of her disappointed expectations, could conceivably come within the scope of victimisation. But it has to be said that regard to the section and words itself suggests that this is likely to be a rare event, for it postulates no particular adverse response to the making of a complaint apart from the fact of simply failing to deal with it.” Unfavourable treatment because of something arising in consequence of disability

2.36 Section 15 of the Equality Act states: “15 Discrimination arising from disability (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 (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know that B had the disability.”

2.37 The approach to determining Section 15 claims was summarised by the EAT in Pnaiser v NHS England and Another

[2016] IRLR 170

. This includes:

• The first stage is to assess the “because of”. In determining what caused the treatment complained about or what was the reason for it, the focus is on the reason in the mind of A. This is likely to require an examination of the conscious or unconscious thought process of A;

• The “something” that causes the unfavourable treatment need not be the main or sole reason, but must at least have a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it;

• Motives are not relevant;

• The second stage is to determine whether as a matter of fact the “something arising in consequence” was a consequence of the disability;

• The expression “arising in consequence of” can describe a range of causal links between the something that causes unfavourable treatment and the disability;

• This stage of the test is an objective question and does not depend on the thought processes of the alleged discriminator;

• Knowledge is only required of the disability. Knowledge is not required that the “something” leading to the unfavourable treatment is a consequence of the disability;

• It does not matter precisely in which order these questions are addressed.

2.38 In assessing whether something is “unfavourable” treatment there must be a measurement against “an objective sense of that which is adverse as compared to that which is beneficial”; Trustees of Swansea University Pension & Assurance Scheme v Williams

[2018] UKSC 65

2.39 The Respondent will successfully defend the claim if it can prove that the unfavourable treatment was a proportionate means of achieving a legitimate aim. This is often termed “objective justification.” The burden of proof is on the employer to establish justification. The supreme court in Ministry of Justice v O’Brien

[2013] ICR 449

re-stated the general principles of objective justification that: (a) firstly, the treatment must pursue a legitimate aim; (b)second, it must be suitable for achieving that objective; and (c) third, it must be reasonably necessary to do so.

2.40 The Equality and Human Rights Commission Code of Practice on Employment contains guidance on objective justification, to reflect some of the case law in the field. It terms the first issue as being determination of whether the aim is legal and nondiscriminatory and one that represents a real, objective consideration. In Bilka-Kauhaus GmBH v Weber von Hartz

[1987] ICR 110

it was termed: “correspond to a real need on the part of the undertaking.”

2.41 In Chief Constable of West Yorkshire Police and anor v Homer

[2012] ICR 704

, the Supreme Court reiterated that the measure in question has to be both an appropriate means of achieving the legitimate aim, as well as being reasonably necessary in order to do so. Some measures may simply be inappropriate to the legitimate aim in question, or they may be appropriate but go further than is reasonably necessary and so be disproportionate.

2.42 As to the third stage, the EHRC Employment Code notes: “Deciding whether the means used to achieve the legitimate aim are proportionate involves a balancing exercise. An employment tribunal may wish to conduct a proper evaluation of the discriminatory effect of the provision, criterion or practice as against the employer’s reasons for applying it, taking into account all the relevant facts.” We pause here to note that in a section 15 claim, it is of course the treatment that is being justified, not a provision, criterion or practice (the terminology from an indirect discrimination complaint).

2.43 It was said by the EAT in Ali v Drs Torrosian, Lochi, Ebeid & Doshi t/a Bedford Hill Family Practice [2018] UKEAT0029 18 0205 (which was a section 15 case) that:

• Justification of the unfavourable treatment requires there to be an objective balance between the discriminatory effect and the reasonable needs of the employer;

• When determining whether or not a measure is proportionate it will be relevant for the tribunal to consider whether or not any lesser measure might nevertheless have served the employer's legitimate aim;

• More specifically, the case law acknowledges that it will be for the tribunal to undertake a fair and detailed assessment of the working practices and business considerations involved, and to have regard to the business needs of the employer;

• As to the time at which justification needs to be established, that is when the unfavourable treatment in question is applied;

• When the putative discriminator has not even considered questions of proportionality at that time, it is likely to be more difficult for them to establish justification.

2.44 Whilst justification under section 15 has to be established at the time when the unfavourable treatment was applied, the tribunal when making its objective assessment may take account of subsequent evidence; City of York Council v Grosset

[2018] EWCA Civ 1105

. Burden of Proof under the Equality Act 2010

2.45 The Equality Act 2010 provides for a shifting burden of proof. Section 136 so far as material provides: “(2) if there are facts from which the Court (which includes a Tribunal) could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

2.46 Consequently, it is for a claimant to prove facts from which the tribunal could infer (absent explanation from the respondent) that discrimination has taken place. If such facts have been made out to the tribunal’s satisfaction, applying the balance of probabilities, the second stage is engaged. At the second stage the burden shifts to the respondent to prove, again on the balance of probabilities, that the treatment in question was “in no sense whatsoever” because of the prohibited reason / that the protected characteristic was not a ground for the treatment in question. A tribunal would normally expect cogent evidence to discharge that burden of proof.

2.47 In Hewage v Grampian Health Board

[2012] IRLR 870

the Supreme Court approved guidance previously given by the Court of Appeal on how the burden of proof provisions should apply. That guidance appears in Igen Limited v Wong

[2005] ICR 931

, as supplemented in Madarassy v Nomura International Plc

[2007] ICR 867

. Here it is important to note that although the concept of the shifting burden of proof involves that two-stage process, the analysis should only be conducted once the tribunal has heard all the evidence.

2.48 Further, as to what is required to discharge the burden at the first stage; it must be something more than a difference in protected characteristic and a difference in treatment. It was said that the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. It is not necessarily an error of law for a tribunal to effectively assume the burden has shifted and look to the respondent to provide an explanation for the treatment in question. It was said in Hewage that the burden of proof provision may have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another. But the burden of proof provisions do require careful attention where there is room for doubt as to the facts necessary to establish discrimination; see Field v Steve Pye &Co

[2022] EAT 68

and the important guidance there at paragraph 41 onwards. Time Limits in Discrimination Cases

2.49 The initial time limit for complaints under the Equality Act 2010 is 3 months starting with the date of the act of discrimination complained about. The effect of the early conciliation procedure is that, if the notification to ACAS is made within the initial time limit period, time is extended, at least, by the period of conciliation.

2.50 Under Section 123(3) of the Equality Act conduct extending over a period is to be treated as done at the end of the period. A continuing course of conduct might amount to an act extending over a period; Hendricks v Commissioner of Police of the Metropolis

[2003] IRLR 96

2.51 Under Section 123(3) a failure to do something is to be treated as occurring when the person in question decided on it. Under section 123(4) in the absence of evidence to the contrary, a person (P) is to be taken to decide on a failure to do something when either P does an act inconsistent with doing it, or if P does not do an inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. A tribunal may consider a complaint out of time if it considers it just and equitable to do so in the relevant circumstances. Holiday Pay

2.52 The Working Time Regulations give an entitlement to 5.6 weeks minimum paid annual leave a year. This is made up of 4 weeks under Regulation 13 and provided for by the Working Time Directive, and a UK domestic right to an additional 1.6 weeks under Regulation 13A. In Chief Constable of Northern Ireland v Agnew [2023] UKSC33 the Supreme Court held that if, and in so far it is not practicable to distinguish between different types of leave, then all leave to which the worker is entitled must form part of a single, composite pot and the tribunal at first instance had been right so to conclude. The tribunal at first instance had suggested that each day of the claimant’s 30 day holiday entitlement (as applied on the facts of Agnew) was a fraction of the composite whole consisting of 20/30ths under what would be Regulation 13 leave, 8/30ths under what would be Regulation13A leave and on the facts of that case 2/30ths of additional contractual holiday entitlement (see also British Airways Plc v De Mello

[2024] EAT 53

2.53 As a general rule statutory holiday under the Working Time Regulations may only be taken in the leave year to which it relates but there are exceptions, many of which have derived from EU case law. In Smith v Pimlico Plumbers

[2022] EWCA Civ 70

the Court of Appeal set out suggested wording to be read into the Working Time Regulations in order to give effect to case law principles. These include that Regulation 13 annual leave can be carried over where the worker was unable or unwilling to take some or all of the leave to which they were entitled because they were on sick leave. Employers can limit carry over in cases of long term sickness so that any holiday not used up within 18 months of the end of the leave year in which it accrued is lost. During the Covid 19 pandemic the government also issued regulations to permit Regulation 13 leave to be carried over where in any leave year it was not reasonably practicable for a worker to take some or all of the leave to which the worker was entitled as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society). The Covid 19 carry over rules ceased to apply on 1 January 2024 (with a transitional period until 31 March 2024). The 1.6 weeks’ additional leave under Regulation 13A may be carried forward to the next leave year if there is a relevant agreement providing for this or if the worker is unable to take some or all of it as a result of taking a period of maternity or other family related leave.

2.54 Under the Working Time Regulations a worker must give notice if they wish to take statutory holiday, and must give at least twice as many days to which the notice relates.

2.55 Statutory holiday entitlement may not be replaced by a payment in lieu save where the worker’s employment is terminated. In such a situation the payment in lieu on termination would include any extent carried over entitlement. Again, the Smith v Pimlico Plumbers suggested wording to be read in to the Working Time Regulations covers this.

2.56 A worker can bring a claim in the employment tribunal where the employer has refused to permit the worker to exercise their right to statutory leave under Regulation 13 or 13A or has failed to pay then all or part of holiday pay due when taken (Regulation 16), or pay in lieu of untaken holiday due on termination (Regulation 14). A claim for unpaid holiday pay or for a payment in lieu on termination must be brought within 3 months beginning with the date on which payment should have been made, unless it was not reasonably practicable for the claim to be presented within the time limit.

[3]Findings of fact3.1 It is not necessary for us to make findings of fact on every point in issue between the parties; only those that are necessary for us to determine the issues in the case. Where there are factual disputes we make our findings by applying the balance of probabilities. The Claimant started working for the Respondent in January 2021. At the relevant times in question the Claimant was the Practice Manager. The Senior Partner was CK who had joined the practice in 2009. GW is a GP and has worked for the practice since 2016. GW was initially a locum and then a salaried GP. GW became a partner in October or November 2020. Prior to that CK had been the sole partner for some time. There were advanced nurse practitioners including Nurse Smith (FS), and RB. There were various administrative staff that included (but is not limited to) the Claimant’s daughter (SC), and witnesses that we heard from ME and JM.

3.2 As well as being Practice Manager, the Claimant was also a patient at the practice, as were her family members. Staff being patients of the practice was something that historically had been encouraged in the sense of the practice being a “family”. But the practice of staff also being patients did, as time went on, become a matter of controversy, as can be seen in the history of the Claimant’s case. The practice was historically seen as a friendly place to work. The Claimant and CK in particular had worked together for a long time and were close. FS joined the staff in March 2019. FS and GW were close, or at least had the appearance of being. Furlough

3.3 When the Covid pandemic started some staff who were considered high risk were sent home and not all of them could work from home as there were not sufficient computers to give them. CK told the Claimant to tell the remaining working staff that these non-working staff were furloughed. In or around June 2020 the Claimant was approached by some staff members asking questions because FS had told them that nobody was furloughed and the staff were just at home on full pay. GW had been told this by the practice accountant and had told FS. The information coming out caused upset amongst staff that the Claimant had to try to manage. The Claimant approached GW who apologised saying she did not realise FS would tell the staff about this. The Claimant accepted in evidence that this incident occurred early on in the pandemic. June 2020 medical appointment

3.4 On 10 June 2020 the Claimant, as a patient, had a consultation with Dr Wilkinson (RW), a part time salaried doctor working a couple of mornings a week. She had bumped into him in the corridor. The Claimant was upset because of a serious medical situation relating to a grandchild. RW saw the Claimant and the consultation covered the Claimant’s own mental health and medications. August 2020

3.5 On 18 August 2020 there was a staff meeting. At the end of the meeting the Claimant asked the staff if they had any comments or suggestions they wished to make. FS said that certain staff were jumping the queue and choosing the weaker doctor at the practice to obtain medication. When questioned FS said the weaker doctor was RW. The Claimant was suspicious that FS was referring to her. Following the staff meeting the Claimant audited her medical notes and saw that FS had accessed her notes three times on 10 June 2020; once prior to seeing RW and twice following the consultation.

3.6 The Claimant was upset and spoke with CK. She told him that she had suspicions she was being watched, along with her family. It was agreed FS would be spoken to. There was then a series of meetings. It is not entirely clear who was present at which meeting and when. CK prepared notes found at [378] which do not seem to record the Claimant being present at the meetings with FS. However, the Claimant in her witness statement says she was present at a meeting with FS probably on 19 August, with CK and RB also present. In the subsequent grievance investigation RB said that after the Claimant’s formal written complaint there was both a telephone meeting and then a formal meeting where the Claimant, FS and another employee, Lynne Edwards (LE), were present. It therefore does seem likely the Claimant was at a meeting or meetings at which FS was also present to discuss the incident.

3.7 According to CK’s notes he had an initial meeting with FS on 19 August 2020 and FS said the use of the word “weaker” was the incorrect word. FS said she meant that staff members were seeking out the newer GPs who were less resilient and not aware of previous health issues [378]. FS expressed her concerns about the appropriateness of staff also being patients. CK said that there could be a conflict of interest in staff registered as patients, but they were entitled to remain patients and must be treated the same as every other patient. CK said that the surgery had been long standing as a caring and compassionate surgery and would continue to do so. His note records that he felt the conversation could resolve any issues and conclude it.

3.8 Again according to the notes at [378], this was reported back to the Claimant who remained upset about the access to her records and a lack of confidentiality. She said she had run the audit which showed FS accessing her medical records. The note at [378] records the Claimant being advised to make a written complaint. RB was to investigate this as complaints officer. The Claimant made her written complaint on [126] on 19 August 2020, saying she was seeking a written response as to why her notes had been accessed on 13 occasions by FS over the period 15 August 2019 to 10 June 2020.

3.9 The Claimant’s evidence is that in the meeting she attended with FS, FS became irate and stated she could not remember accessing the Claimant’s notes, and would never treat the Claimant or members of her family. The Claimant says the meeting ended with FS walking out. The allegation in the list of issues is that FS denied accessing the notes, and was verbally aggressive to the Claimant, and refused to treat the Claimant or her family. RB’s evidence is that FS did not refuse to treat the Claimant or her family, although at some point on an unknown future date FS said she would be unhappy to treat them. RB said FS was always brusque so FS was no different in the meeting to any other they had. CK’s evidence is that FS did not behave in an aggressive manner or refuse to treat the Claimant or her family. He says that FS did say she preferred not to treat members of staff and their families due to the potential conflict of interest that may compromise the quality of care.

3.10 We did not hear evidence from FS. We do not know why. We understand that she no longer works for the Respondent. However, FS did attend the hearing as an observer, and we have not been given any explanation as to why she was not called as a witness.

3.11 FS was described by other witnesses as being a forthright or brusque person. Indeed, in personal correspondence with TC that subsequently came to light GW referred to FS as “Giant Haystacks” (a reference to the British wrestler popular in the 1970s and 1980s), and as her “guard dog.” On the balance of probabilities we find it likely that FS was irate when challenged in the meeting about accessing the records. We would not classify that as being verbally aggressive. If FS was verbally aggressive we consider it likely that some action would have been taken at the time, including by the Claimant. We do not find that FS denied accessing the notes. Instead, we find that FS said she could not remember the specifics as to why she accessed the notes in each occasion. That accords with the Claimant’s witness statement, with CK’s note where he recorded FS saying she would be unable to remember specifics, and with the email that FS subsequently sent. We also find it likely that if FS was irate she was likely to have made a comment about not treating the Claimant and the Claimant’s family in the future. Indeed it was FS’ view in general that staff being patients was a conflict of interest which again supports the likelihood of her having said that.

3.12 FS was told the Claimant was seeking a written and verbal apology. The Respondents witnesses say this apology happened but we were unable to locate any evidence of specifically when and how it happened (other than FS saying she was sorry the Claimant felt the comments were inappropriate).

3.13 FS provided a formal written response on 28 August 2020, sent to the Claimant on 8 September 2020. FS said she was sorry the Claimant felt the comments made in the staff meeting were inappropriate, but she had not mentioned any names at the meeting. FS said the comments were not specifically aimed at the Claimant. FS said the Claimant had asked if anyone had any issues and that FS had said that for fairness to clinicians only registered partners should be seeing colleagues who had complex/chronic needs. FS said she had elaborated that certain staff members felt it was a perk to be able to access any clinician or request medication at any time. FS stated she had said at the meeting that the less senior GPs were seen as ones who were “weaker” and may give treatment other more senior GPs would be less willing to give. FS said in her written response again that use of the word “weaker” had not been correct, and she meant that they were viewed as more malleable or a soft touch.

3.14 FS said in that formal response, in relation to the specific dates she accessed the Claimant’s records: “given this is one patient and there are no justifiable reasons to access now to check why I have been into them I am unable to remember these events to provide reasons as to why.” FS said that she had been asked specifically by the Claimant to issue medications, she also authorised results for patients, she had moved patients around on lists, she coded medical records, she accessed notes by way of triage to see if there were issues she could deal with instead of a GP, and revisited notes as a learning exercise. She said: “however, I do not remember why and it was certainly not to “watch the family” and “I have not been “watching” you or your family, there may be instances where it is necessary to monitor a patient’s notes for safety reasons.” FS had also been asked why she had accessed the Claimant’s husband’s records on 12 August 2020. Again FS said she could not remember doing so. FS herself complained that the complaint had been raised against her, and that the Claimant had been able to audit her own medical records.

3.15 Unbeknown to the Claimant at the time, FS had prepared an earlier draft of her response to the complaint which she had sent to GW [172]. As explained below, this came to the Claimant’s attention in December 2021. This earlier draft said: “I omitted a few key facts in my previous response in an attempt to protect other colleagues from being involved in this situation. There is already an atmosphere in surgery as a result of this situation and it is not my wish for this to continue. What I can advise you is that on the day you have questioned – the 10th June 2020 – my reason for accessing them was because there had been no triage system. I was triaging with restricted appointments and one had disappeared – with you booked into it. I accessed to look what was needed or if I could have dealt with the issue without the need for the appointment – as I would any[one] other patient who I have concerns for. I have previously expressed my concerns to Dr Williams and Rachel regarding the misuse of appointments and inappropriate prescribing to members of staff. This was picked up by the LHB prior to my starting at the surgery, a fact that I was fully aware of before starting; but it is my belief that they do not know the full extent and conflict involved – only the generic prescribing numbers to the practice. I attempted to go in and see Dr Wilkinson prior to your appointment on 10th June 2020; however if you recall me coming into the consultation and then apologising and leaving. This was because I had planned to inform Dr Wilkinson of the unfortunate confliction that we currently have at the surgery with regard to staff – specifically more senior members of staff being registered as patients at the surgery – and their unrealistic expectations and drug seeking behaviours. I felt it was important to inform him due to the fact that notes are not correct and are altered personally and issued medications – there is also the suggestion of medications being requested for other members of the family, that when triaged have no idea that they have requested said medication. The main medications appear to centre on benzodiazepines and opioid drugs. There was also the concern about your Diazepam supply drying up that you openly expressed in reception and your need for medicinal “cakes.” Unfortunately as I was unable to speak to Dr Wilkinson at this point, so I accessed the notes afterwards to see what he had done. It was then that I noted the amount of diazepam that had been issued. I did not speak to Dr Wilkinson as I felt that I needed to express my concerns to a colleague for their opinion first. It is not my job to check on a GP’s work, and I was not doing this – moreover protecting a colleague from misuse of the system. I went to Dr Williams with my concerns and she agreed that Dr Wilkinson needed to be informed of the situation. She agreed that it was important he knew about the situation and therefore would speak to him on his next shift in order to protect him from potential future issues. Unfortunately, the following week when Dr Wilkinson was back on duty, Dr Williams was not in work – and therefore I agreed prior to the day I would inform him of the situation. I did this sensitively and discretely and suggested that should he see specific staff members as patients within the surgery setting then he should close check their medical history and prescriptions as there may…” We do not then have the rest of the draft.

3.16 Contrary to what FS said in her formal response to the complaint, the different draft response shows FS did actually remember why she had accessed the Claimant’s records, at least on 10 June 2020. The draft also shows that FS viewed the Claimant as having “unrealistic expectations and drug seeking behaviours” and that FS had discussed her concerns about alleged inappropriate prescribing with both GW and RB.

3.17 This links in with the wider issue of what was going on in the workplace about the Claimant and her family at that time. JM in her statement said that many accusations were made against the Claimant: “another one being that she was abusing her medications and was an addict. That she drank to excess. If she was put on the triage list, they would look and see what she wanted after making comments like “Ooh probably lost her diazepam again” or “stopped drinking now she must be anxious again needing more tablets.” There were comments from many members of staff including Rachel Barnes and Felicity Smith that she was never in work, and she got paid far too much to do as little as she does. If someone would walk upstairs and ask if Tracey was coming in there would be comments passed such as “Well your guess is as good as mine” and then when Tracey did come into the office there would be remarks such as “Oh she’s made it in then! Must be wage day” or “She musn’t have drunk that much last night then!” All of these comments made it a very uncomfortable place to be sometimes.”

3.18 JM said in oral evidence that the comments were made by various staff members including staff nurses and admin staff. She specifically named RB and a colleague Suzanne and said it was probably easier to identify who had not made comments. JM said there were often conversations going on in various places in the surgery about the Claimant’s personal life. JM said she did not hear GW participating in such conversations. She said the comments had probably always happened but it was originally more of a joke. JM said it had turned nasty in the last 2 to 3 years of her employment. JM said she did not hear FS make comments but it would not have surprised her. She said RB and FS had telephone conversations about the Claimant’s diazepam use but she could only hear RB’s part of the conversation. JM said she heard RB make the kind of comments outlined and that there was a need to put something to a doctor as they could not give things like that as it was drug seeking behaviour. JM said the Claimant would have been on the triage list and they were looking at what she was asking for.

3.19 A document that subsequently came to light in material provided by TC is an undated whats app which says: “How very rude!! E consults a plenty from Porthmadog today!!! Xx [face palm emoji] Surely nothing on the CD list? At least tell me that? Xx Forgotten Zapain xx Ah, for all the hill walking, mountain climbing and jet skiing no doubt! Xx I can imagine them forgetting a toothbrush or shower gel or the barbecue coals etc. But the ZAPAIN? [thinking face Emoji] They’re all monkeys xx Of course then at 17:25! UTI no denied temp resident up there or UTC sachets!!! Xx No way, was that Fliss? [shocked face emoji] xx No me!! not faxing abx to Porthmadog!!! Xx My friend, kudos. A WhatsApp Boris “elbow bump” is on its way…”

3.20 GW confirmed in evidence this could only have been about the Claimant, SC, or SC’s partner. GW thought the exchange was between herself and RB. RB said in evidence it was not her as she was on maternity leave at the time, which she believed was April 2021. The reference to a “Boris elbow bump” tends to suggest the exchange happened some time during the Covid pandemic. RB said in evidence that she had never said anything about the Claimant that she would not say to the Claimant personally. RB said she did not discuss the Claimant in the form and way described by JM and did not make derogatory comments about the Claimant. RB said that FS did raise concerns about staff misusing the triage system but that no individual was specifically mentioned. RB said in terms of the phone calls referred to by JM, that if there was a request for medication on triage FS would contact her because as nurse practitioners they could only prescribe what was on a repeat prescription and was due. Other medication or increases in strength would have to go to a GP. RB said these were clinical discussions with FS.

3.21 This exchange where the Claimant’s family are called “monkeys” cannot have been FS as FS is mentioned in the exchange (“Fliss”). RB confirmed (if it was not RB) it could therefore only have been between GW and the other Advanced Nurse Practitioner, EB. It does, however, in our judgement, demonstrate that GW was capable of having the equivalent exchange with RB. GW said in evidence there had been lots of issues with requests for medication for staff out of the area when the advice was to register with a local doctor. That does not however explain the commentary and gossip that the exchange demonstrates.

3.22 RB said she did hear other administrative staff making comments about the Claimant as set out by JM. RB said it was because the Claimant was not present in the building much in 2019, 2020 and 2021. RB said she did not observe GW or FS being in those discussions. GW said she did also hear these types of discussions by staff as detailed by JM, which GW said was due to the Claimant’s absence from the workplace. GW accepted she and FS had made those types of comments too.

3.23 We have some of the Claimant’s GP records. They do not relate to this exact period but the records we do have show the Claimant having periods of stress, anxiety and depression and on occasion being prescribed drugs such as diazepam. On an unknown date the Claimant also sent a heartfelt whats app to GW [175] about her mental health and medication at the time saying as soon as the diazepam wears off she would in melt down mode again, shaking, crying and suspicious thoughts. The Claimant asked GW “as a very loved and trusted friend” if there was anything to help medication wise or counselling. CK said he was constrained in what he could say due to patient confidentiality but that there was sometimes a need to keep an eye on some patients who were taking controlled drugs.

3.24 Again, this is material that subsequently came to light via TC, but GW sent TC various extracts from SC’s medical records. For example, at [283] GW sent a screen shot where she said the Claimant had requested diazepam for SC, writing it directly on the record. GW also sent TC a message (referred to further below) where she called SC’s partner “10 pints.” The Claimant says that was information GW would have obtained from his private medical records.

3.25 On 4 February 2021 GW sent a whats app to TC saying: “The social media police were in my room this morning waiting to show me Tracy latest.” It was about the Claimant having allegedly put on Facebook that they were having a bonus and the Claimant was considering going to work for the accountant [284].

3.26 We treat TC’s evidence about GW with some caution (as we likewise do GW’s evidence about TC), in particular where uncorroborated by other evidence. But we note that his evidence alleges that GW had an obsession with the Claimant and her family. TC alleges that by late 2018 and early 2019 GW had created a whats app group with other staff members to talk about the Clark family and they began to refer to the family as the “Clarkashian’s.” TC alleges the group consisted of GW, FS, RB and possibly others. He says that GW would exchange messages with RB and FS about the family. He says that around this time GW and FS began to access and share medical records concerning the family. We return separately below to the question of whether there was a specific whats app group about the Claimant and her family. But the account does support the notion that GW was engaging in gossip about the Claimant and the Claimant’s family with FS and others that included commentary on their medical information.

3.27 Some of the above evidence does not relate directly to FS but it does, in our judgement, paint an overall picture as to what was likely to be going on amongst the staff. We consider it likely and find that FS probably did have some genuine clinical concerns about potential misuse of the triage system and about the Claimant (and probably others too) seeking controlled drugs. But we also consider it likely, and find, that people at the surgery, including FS, were also engaging in unkind gossip about the Claimant and her family which included (but was not just about) access to medications. A good example of that would be the whats app exchange about sending medication to Porthmadog which may have had a clinical basis but became gossip. That message was obviously was not an exchange with FS, but GW and FS were close. For example, FS sent GW her draft email to look at about accessing the Claimant’s medical records. GW described herself at times as “defending her guard dog”, being a reference to FS. It is, in our judgement, likely to be the type of exchange that GW would also have been having with FS.

3.28 In summary we find the Claimant and her family were the source of gossip amongst the staff that included FS and GW. That gossip in part related to prescription medications.

3.29 Returning to the chronology of events, the Claimant alleges that following her complaint about FS this she was approached by GW asking why the Claimant had put three members of the Claimant’s family in the shielding list for Covid. The Claimant says she told GW it was part of her duties and that they had qualifying medical conditions. The Claimant alleges that GW then told her that FS was “wound up” by this and it would not be advisable for the Claimant to take further the matter of FS having accessed the Claimant’s medical records. The Claimant’s evidence was that GW was clearly annoyed with her and told her that FS was wound up and the Claimant should not continue with the complaint and when the Claimant asked why GW said the Claimant had wrongly entered members of her family onto the shielding list. The Claimant alleges GW said it would be taken further if the claimant continued to complain.

3.30 GW denied in evidence having any conversation about the shielding list or that she had advised the Claimant not to take the matter about FS accessing the Claimant’s medical records any further. GW said she was not a partner at the time and would not have become involved in these things.

3.31 When the Claimant made her subsequent complaint of 31 December 2021 she said: “I was coerced by Chinese whispers at the practice, that Felicity would come back with a force to “blacken my name” as Dr George is her friend and right arm…” The Claimant did not at that time allege that GW had directly threatened her which is now is the allegation made. In her account given to BS in the subsequent grievance investigation, the Claimant alleged that LE and RB told her perhaps it was best to let the complaint go because they had been told by GW and FS that there was evidence the Claimant had wrongly coded her family as being on the shielding list. That is not an allegation repeated elsewhere, and was not put to RB in cross examination. The Claimant also told BS that GW made an “off the cuff remark” relating to patients with certain conditions not considered to be shielding and that this sowed the seed in the Claimant’s mind she was under pressure by GW, LE and RB. So again the Claimant did not at that time say what she seems to say now was a direct threat by GW.

3.32 BS recorded he had been told that questions were asked as to how a family member of the Claimant’s was added to the shielding list which should have been done by a clinician. He records that RB and been told by the Claimant that she had probably done wrong but she was worried about the family member. BS records the Respondent saying that the Claimant had confused questions being asked about adding a family member to the shielding list with the access to the Claimant’s medical records and that these were two distinct issues. The grievance report does not identify who had the conversation with the Claimant about the shielding list.

3.33 On the evidence before us, we do not find on the balance of probabilities that GW made a threat as alleged. We accept it is likely the Claimant was spoken to about why family members had been added to the shielding list. Likewise there were of course discussions about the Claimant’s complaint about FS. But we do not accept that GW threatened the Claimant that the Claimant’s actions in relation to the shielding list would be pursued if the Claimant continued with her complaint against FS. There is not sufficient consistency in the Claimant’s own account and it is an allegation consistently denied by GW. Autumn of 2020

3.34 In October or November 2020 GE became a partner.

3.35 The Claimant was in general finding it difficult to manage FS. The Claimant spoke to CK about wanting to dismiss FS. He said, in effect, that it was part of the Claimant’s job as practice manager to manage FS and if action were to be taken against FS there needed to be a basis for it and due process followed. The Claimant was able to take some action against FS relating to a different member of staff where CK signed off a written warning.

3.36 In October 2020 JM sent the Claimant a complaint that her social media platforms had been shown to other members of staff, including the doctors. She alleged that a post had been shown to a GP with words to the effect: “don’t feel sorry for her, this is the crap she is posting.” JM said in her complaint it was not the first time it had happened. JM referred to there being so much animosity in the working environment at the time. JM said in evidence to us that GW was her GP who she saw in relation to her mental health. JW said that her social media had been shown to GW with comments made by GW and staff about how JM did not look depressed or anxious. GW said in evidence that she had been given information about JM not social media posts. However, social media platforms are mentioned in JM’s written complaint from the time and therefore we consider it more likely that was the source of the information given to GW. March and April 2021

3.37 In March 2021 RB brought to the Claimant’s attention a whats app sent to her by GW. It included a message from Sara Roy (SR) from the Respondent’s accountant to “John” a mutual friend of SR and GW’s mother. The message said: “Thanks for the “heads-up” John. Yes its Tracey. We’ve not put our bill up since we took on the Surgery!! Yes it’s a bit of a hike in price, but if Tracey did her job properly we wouldn’t have to waste so much time wading through all the unnecessary paperwork that she sends us. Also the price increase was authorised by myself and Ken over a month ago but Tracey wont pay it blaming it on Dr Clipps and George saying they wont authorise it until they speak to Ken. As far as I’m concerned Tracey should have spoken to Clipps and George over a month ago and if there were any problems we could’ve negotiated a mutually agreeable monthly amount. I’m just so fed up of everyone pandering to the clearly inept practice manager . If I was her boss she would’ve been given her marching orders long ago [laughing emoji]…”

3.38 CK had raised concerns with the Claimant about a £200 fee paid to the accountants, saying a fee increase had never been agreed. They had an exchange on an internal computerised task system. The Claimant responded to say it was a tricky one with GW being so loyal to the accountant and with GW being upset and stressed relating to a personal health issue for GW. The Claimant said she would look out for new accountants and it was unpleasant and made her unhappy and stressed especially with the GW and FS friendship as well. CK said that they should look to change accountants and that the accountant could always continue as a personal accountant for GW.

3.39 The Claimant then said to CK on the task note system that she felt upset and betrayed by SR. She said GW and SR had been liaising and some nasty comments had been made which GW had shared with RB. The Claimant told CK that RB was concerned that GW would share it with other staff too, particularly FS. She said that she and RB felt no good was going to come of the situation with regard to FS and GW. The Claimant said she felt sad and did not know what way to turn or how to handle SR and what she said. She said she was therefore not going to liaise with SR going forward. CK said in evidence that he was told about the message referring to the Claimant as “inept” by the Claimant, and that he found it unacceptable. CK directed the Claimant to find a new accountant and says he believed it was the appropriate course of action.

3.40 The Claimant’s witness statement alleges that what GW showed RB went beyond the forwarded message from SR. The Claimant’s witness statement alleges that GW also sent to RB wider commentary which forms part of the material that TC later sent to the Claimant. In particular, that following the forwarded message from SR, GW had written [164] “So everyone thinks Tracey is a cunt, not just me! Tempted to forward that to Clipps with FYI under it.” The message then went on to say :“Think I’ll just sort myself out and ignore all correspondence from work as of Monday until I go back in April. If in doubt do nothing and of they’re paying my wages so that’s all that matters really. I’ll have a shower and head over.” The Claimant alleges that she showed the message to CK and that CK showed no concern and merely asked the Claimant to look for another accountant.

3.41 RB said in evidence that on 6 March 2021 she told the Claimant that GW had sent RB a message which contained a message from SR that SR thought the Claimant was “inept” and if SR employed the Claimant she would sack her. RB denied ever seeing at that time the second part of the message where GW referred to the Claimant as a cunt. CK likewise said he did not see this supplemental message at the time. RB said she showed the SR message to the Claimant because she found it unprofessional.

3.42 GW said in evidence that via her mother and John, she had asked SR why the fee had been increased. She said the Claimant had been saying she was struggling to get hold of the main accountant, Ken. GW likewise said she had only forwarded the actual message from SR to RB and not the wider observations by GW. GW said she forwarded it on to RB because RB the Claimant was in and out of work at the time, RB was picking up administrative duties and she thought RB was best placed to deal with it.

3.43 We find that GW only sent the SR message to RB and not the wider comments by GW. That accords with RB’s and GW’s evidence. Further, the wider message reads as far more likely to have been sent by GW to TC as her partner, rather than by GW to RB given it refers to GW’s feelings at the time about correspondence from work, and taking a shower and “heading on over”. We consider that the Claimant in her witness statement is misremembering what she saw at the time (having later on in December 2021 seen GW’s wider comments to TC).

3.44 The Claimant alleges that CK showed no concern. We do not, however, accept this as the Claimant in her own ET1 claim form says that GW was spoken to by her, RB and CK and that GW said she was just trying to help by liaising with SR. CK also confirmed the instruction to change accountants as already referred to above.

3.45 The word “inept” was of course used by SR not by GW. The allegation we are dealing with here is GW’s decision to share SR’s comments with RB. GW said in evidence that she sent it to RB because RB had absorbed a lot of the managerial duties at the time and was handling the complaints, and thought RB was the best person to send it too as GW had a good relationship with the Claimant at the time and did not know how to proceed. GW said the Claimant was intermittently in and out of work with time spent on sick leave and working from home.

3.46 We do not consider that GW forwarded SR’s email to RB for a legitimate reason. We can see from GW’s wider comments to TC that GW contemplated sending the message to CK but chose not to do so. We consider that if GW was legitimately seeking to raise concerns from the accountants about the Claimant’s skills with accountancy matters that she would have taken it to CK as senior partner, or indeed raised it sensitively with the Claimant directly. It was embarrassing for the Claimant to be referred to as inept and to have that shared with RB, and for it not to be discussed first with the Claimant. Further, from this material and other that is referred to below, we do not accept that GW at the time had no real issues other than minor niggles with the Claimant’s performance as practice manager. We find that GW at the time did not consider that the Claimant was doing a good job and GW was sharing those views with others. As already found, GW was generally engaging in gossip about the Claimant and the Claimant’s family. In our judgement, GW in sending the message to RB, was engaging in unkind gossip and was not raising it as a management issue.

3.47 The Claimant denies that she was not regularly in work or not fulfilling her duties. She states that from 2020 onwards she did sometimes work from home but that this was in accordance with Covid arrangements. We do find in the period 2019, 2020 and 2021 the Claimant did have periods where she was on sick leave, or was working from home (or a mixture of the two) that related to her disability and was not purely Covid 19 home working. We find this did have some knock on consequences in terms of visibility to staff on a day to day basis and there would have been times in which work fell behind if the Claimant could not work to her full potential; that is an inevitability rather than a criticism. We find that CK in particular, at times when the Claimant was struggling, showed flexibility in letting the Claimant work from home or work whatever duties she could manage to allow the Claimant time to recuperate. This included letting the Claimant do some work whilst sign off on sick leave if she wished to do so and we find the situation had generally been fluid in that regard.

3.48 There were times at which the Claimant threatened to leave because of feeling overwhelmed but from which it seems that she would recover if given time and space. For example, the hearing file shows that in in 2019 the Claimant was considering leaving saying she was not coping with the job and the pressure of family health difficulties with the Claimant’s mother and granddaughter. Obviously she did not ultimately do so at that time. The Claimant’s GP records available to us do not generally date back as far as 2019 and 2020, but those from the summer of 2021 show the Claimant fairly regularly seeking medical help with work, home and family stressors and a period of certified sickness absence and then a phased return to work and we consider it likely the Claimant had a similar pattern in previous years.

3.49 The evidence of CK, RB and GW was that RB, over time, ended up picking up more managerial responsibilities. The Claimant accepts that for a period RB picked up the handling of complaints because the Claimant was finding those difficult, particularly as a high proportion involved FS. RB did pick up the complaints but we find that she was during this time also picking up other administrative and managerial responsibilities. In turn it is likely that this affected perceptions in the workplace of the Claimant and her work capabilities and capacity.

3.50 On 28 April 2021 the Claimant emailed CK [134] with the heading “help please.” She said she knew CK had enough going on and thought she could handle it herself but she was unable to do so. The Claimant said that FS had continued to make her life very difficult and spoke about an incident about the handling of complaints by the Claimant and SC, which had then involved two other members of staff, LE and EB. The Claimant said she was seeking medical help at a different practice and was going to take this and her initial complaint further with the help of the MDU and the HR online service. The email seemed to suggest that she was also leaving, as she referred to having previously planned to work for a good few years and said that in the meantime she was going to ask if she could continue to work from home to ensure a good handover. The Claimant did, however, remain a patient at the time and also did not in fact resign at that time. We consider it another example of the Claimant having a period of struggle and being given space by CK to recover. We do not find there was a lack of concern by CK. Covid vaccination arrangements and CTC Limited

3.51 In the Spring of 2021 Covid vaccinations needed organising. There is a key dispute in this case about what arrangements for this were agreed. The Claimant says that the practice nurses did not want to do the vaccination clinics because the nurses were burned out, and if the practice sent their patients to the mass vaccination centres no money would come into the surgery.

3.52 The Claimant’s evidence is that she attended a meeting with CK and GW and told them she could manage the vaccinations via the Claimant’s limited company, CTC Ltd and arrange for qualified nurses to administer the vaccines. The Claimant in her ET1 wrote: “Both CK and GW agreed to this proposal and signed documents for CTC to be able to vaccinate off-site and we agreed a 50% share of the profits, but CTC Ltd would pay for all the costs involved in the administration of the vaccines and the surgery would not have anything to do. The surgery incurred no costs for the vaccinations carried out but retained 50% of the revenue as it was recognised that the patients were provided by the surgery.” The Claimant says that payments were made to CTC Ltd on an ad hoc basis via BACs payment from the surgery’s expense account. The Claimant processed these payments as she processed all payments as practice manager (including her own pay). The Claimant alleges that CK knew of these payments as she asserts CK received expense sheets on a monthly basis including invoices from CTC Ltd. For example, [139] Is an expenses sheet for June 2021 which shows a payment for locum fees to CTC Ltd of £4832.

3.53 CK’s position is that when the Claimant proposed to use her company he disagreed and he indicated there would be a conflict of interest and it was not appropriate for the Claimant, as practice manager, to seek individual benefit financially. CK says that the plan was to use agencies/locum personnel when needed to assist the practice nurses with delivering vaccines and that he thought that was what was happening. He says no invoices were presented to him and he did not authorise any payments to CTC Limited. CK says that he did not see the expense sheets that the Claimant refers to. He says that in years before the Claimant had produced those kinds of sheets but that they were not accurate or particularly helpful and so they had moved to a system of him just asking the Claimant for the ballpark sum she needed for the month to pay the bills, and him transferring the money to the account the Claimant had access to if he had the funds. CK said in evidence that, now to his regret, he did not check the bank statements regularly. He said the occasion on which he noticed the £200 increase in accountant’s fees was one of the rare occasions he had checked the bank statements. GW’s evidence is that there was the beginning of a plan but that CK was not particularly keen. She said she later told SM (when the payments to CTC Limited subsequently came to light) that there was no signed contract and the idea was in the early stages.

3.54 In the course of the dispute the Claimant has referred to the Respondent signing documents or there being a written agreement. Although there was in fact no written contractual agreement that ordinarily one might expect between a GP surgery and what was in effect a locum business subcontracted for delivery of the vaccines.

3.55 There is an undated, untitled document at [160] which is about suggested share of Covid vaccinator’s revenue produced at Plas Madoc Leisure Centre. It refers to 790 patients and proposes a 50-50 split between the Respondent and CTC with all vaccinators indemnified and scrubs provided by CTC. It said: “CTC pays for vaccinators out of her share” with no staff costs to the Respondent. The Claimant’s share would include her personal time on administration which was to be done in her own time. CTC were to produce monthly figures of income generated by Plas Madoc and present it to the partners for their information. The document says the income will be lost to another agency if they did not run the clinics. The Claimant says she gave this document to CK and GW during their discussion. CK and GW dispute this.

3.56 The documents the Claimant says that the Respondent signed are a form signed by CK on 8 January 2021 [411-412] where the practice agreed to be included in the delivery of Covid 19 immunisations, where it had been agreed the Respondent would participate at their own practice or as part of a cluster, but not as part of a local vaccination centre. It was then amended by the Claimant on 13 May 2021 to opt into participation at local vaccination centres [413 – 414]. CK says he was unaware of the amendment. The Claimant said in evidence that the amendment was done by her and initialled by her and was not hidden. She says it was simply done to allow the practice to vaccinate off site, and did not change the income that came into the practice for vaccinated patients. At [159] is a form signed by GW to confirm that the Respondent was able to deliver the Covid booster vaccine, dated 15 December 2021. None of these signed documents are about the Respondent agreeing in writing for CTC Limited to do the vaccinations on their behalf or set out other contractual arrangements between the Respondent and CTC.

3.57 The Claimant alleges that SM knew about the arrangement as she discussed it with SM at the time. We do know from available emails that on 4 May 2021 the Claimant emailed SM asking for a chat about a business idea [135] and the email chain shows that happened that evening. At that time SM was practice manager at another surgery and the Claimant was seeking SM and SM’s husband’s advice about providing vaccines via a limited company. SM said in evidence she understood at that time the Claimant was proposing contracting directly with the Local Health Board and she told the Claimant that it would not be possible because there would be insurance/indemnity difficulties. SM said she did not have a conversation with the Claimant about the Respondent continuing to hold the contract with the Local Health Board and the Claimant providing vaccines via a limited company agency. We accept that is likely to be the case because the Claimant followed up the discussion with an email asking if there was any guidance about what they might be expected to pay staff for the vaccinations. SM replied that it was down to the partners as to whether they would want to pay more than the rate of pay for normal hours worked because it was the partners who were holding the contract and the liability and indemnity cover was borne by the partners.

3.58 During the subsequent grievance investigation someone (not identified in the grievance report) told BS: “Although a tentative agreement had been discussed with [the Claimant] about paying CTC for the actual cost of payments made to vaccinators and then once all the accounts had been finalised to pay to CTC a share of the profit, there was no final agreement.”

3.59 We found this factual point a difficult one to resolve. The parties have opposing points of view as to what was said and agreed. Whilst we would accept that CK may not have in fact received the monthly expense sheets (because he was not generally receiving them at that time), the Claimant was not hiding that CTC Limited were employing nurses to undertake the vaccinations. The payments to CTC Limited would have shown up on the bank accounts if CK had chosen to look at them (which was not something the Claimant could control). Nurses at the surgery were doing vaccinations off site for CTC Limited including EB and RB once RB returned from maternity leave. It was no great secret. Furthermore, the Claimant and CK had a close working relationship for many years and it is difficult to see the Claimant going directly against a clear and express direction by CK.

3.60 On the other hand when CK later learned about the monies paid to CTC Limited (which we come on to below) he was, to use our expression, somewhat heartbroken. We do not see CK having such a reaction unless he genuinely did believe he had given the Claimant a direction that she could not use CTC Limited as he considered it inappropriate.

3.61 We say this with the benefit of hindsight, but the Claimant was somewhat foolish in not having any agreement properly recorded in writing and in not ensuring that CK expressly signed off any payments to CTC Limited given it was a private company owned by her and she was transferring funds to it in her role as practice manager. The whole alleged arrangement also smacks of a lack of precision and uncertainty. For example, the Claimant talks about sharing the profit 50/50 and sharing the revenue 50/50 but they are two different things. Her plan also said that CTC Limited would bear the cost of the vaccinations (mainly nursing costs) and yet she was invoicing those costs (which she did initially pay up front) to the Respondent and transferring the sums back to CTC Limited. Albeit the Claimant did say in evidence that the plan was in the long term to do a final reckoning and adjustment (such as the Respondent transferring to CTC Limited the balance of the 50% allegedly owed once credit is given for the nursing costs/administration costs CTC Limited had already been reimbursed for). She also said that the series of invoices she processed were mainly the actual nursing costs incurred but later on there was an element of some administration fees in the later invoices. But there are no breakdowns of costs and calculations for the invoices.

3.62 Having weighed all the evidence on balance of probabilities we consider it likely, and find, that there was a tentative arrangement reached. But it was such a tentative arrangement and one not recorded in writing that those involved in the discussion took different things away from it, particularly as time went on. We consider it likely that CK did express genuine reluctance to have an arrangement in which the Claimant would personally profit, given her role as practice manager. We are struck in particular by what BS recorded he had been told by the Respondent that there was a tentative agreement to pay CTC Limited for the actual vaccination costs and for there then, once all accounts had been finalised, to potentially pay to CTC Limited a share of the profit. We consider it likely that was the basis of what was said and the Claimant took away from it that she could crack on with arrangements. Whereas for CK he was not someone that focused on administrative details on a daily basis and simply left it to the Claimant without much ongoing thought. But he took with him the notion that he had expressed clear reservations about the Claimant potentially profiting, and that there was no final agreement in that regard. For CK it was also the case that if indeed CTC Limited would ultimately be paid something above nursing overheads it would come from profit (i.e. unless something really went wrong with the overheads the Respondent was not going to financially end up losing money in the vaccinations). He would therefore be shocked and upset in due course (which we come on to below) at the idea that money had been transferred to CTC Limited that was more than came in from the Local Health Board.

3.63 The vaccination programme therefore progressed the Claimant processed a series of payments to CTC Limited between May 2021 and December 2021. SM was nominated by the South Wrexham cluster of GP surgeries to administer the money generated by local vaccination centres and mass vaccination centres. On 22 October 2021 SM emailed the Claimant about a calculation of covid vaccination monies owed to the practice which the Claimant approved. SM then emailed the Claimant thanking her for the response and for her patience and understanding on how complex the task had been. She closed with “Now you can afford to have a fizzy Friday on me .” TC’s contact with the surgery December 2021

3.64 On 22 December 2021 GW’s ex-partner, TC, sent an email to JM saying: “Thought you’d like to know how you are seen and referred to by the doctor. She has been wanting to get you sacked for some time. And I believe also accessed your medical records, as well as many others. Some of which have been shared. I have tried to contact Tracey the practice manager over complaints of: misuse of prescription, malpractice, sharing patient personal information, NHS fraud etc But it seems George has got to her Unfortunately George has implicated her. So I would ask that she contact me before I put my evidence to the GMC…” The same or equivalent email was sent to the Claimant and the surgery. The relationship between TC and GW was at an end and TC was pursing GW for money he said that GW owed him. He sent his invoice to the surgery and also decided to send other information and material to harm GW. It appears to have been done with no compassion for the inevitable consequential impact on others involved such as the Claimant.

3.65 There is a dispute about what was attached to that email that evolved during the course of the hearing before us. In particular GW and then RB disputed the Claimant’s account of what had been attached. Doing it in that way deprived the Claimant of giving evidence about it and it should have been much better handled by the Respondent when preparing the case for hearing. They could have flagged the question with the Claimant at preparatory stages which would have allowed all parties to go back and look at the original material.

3.66 It is not in dispute that one attachment was an whats app sent by GW [165] saying “… a formal complaint to Tracey about me. That’s her sacked. Now trying to dislodge the old knacker but like any decent tumour she has a long root! X.” The comment about a formal complaint and getting a person sacked was a reference to JM. The reference to dislodging the old knacker was a reference to the Claimant. Given the reference to JM making a complaint we find this message was originally sent some time in either late October or in November 2020. It would have been around the time that GW became a partner.

3.67 It is also not in dispute that another attachment [166] was a whats app from GW saying: “Clarkashian update: Steph and 10 pints went for another test yesterday. The man at the testing centre asked 10 pints “you do know you don’t get paid for coming here don’t you mate?” GW told us that the reference to the testing centre was a joke that had been generally shared in work. The Claimant told us that the reference to 10 pints was a reference to SC’s partner and was information that GW would have obtained from viewing the partner’s medical records. The message would have originally been sent some time during the Covid pandemic.

3.68 As EJ Moore put it in her case management order, the term “Clarkashian” appears to be a reference to the TV programme the Kardashians. TC’s evidence was that by late 2018/early 2019 GW had created a whats app group with other staff to talk about the Claimant and her family and they began to refer to them as the “Clarkashians.” TC said in oral evidence he had seen such messages on GW’s phone. GW denied ever setting up or being part of a whats app group. She also said she had never watched the Kardashians but understood them to be glamorous and successful family and that she had seen the word Clarkashian used on Facebook some time but could remember no more about that context.

3.69 On the balance of probabilities we do not find on the evidence before us that GW created a specific whats app group referring to the Claimant’s family as the Clarkashians. The material does not seem to demonstrate the existence of an actual whats app group, rather than GW engaging in individual contact, including with TC. The actual message we see referring to “Clarkashian Update” looks to be an individual rather than a group message.

3.70 The specific allegation made and addressed in our discussions and conclusions below is about a whats app group. We do however consider it likely that GW was sending individual messages to people, including TC, in which the Claimant and her family were referred to as the Clarkashians. We also do not consider it likely that [179] was a one off use of the word. For one, the use of the word Clarkashian “update” tends to suggest that it a reference that has been made before – and that there is an update in the sense of new material to be gossiped about. In our judgement it is likely that the term’s use also involved those within GW’s inner work circle. But, as stated, we are unable to conclude there was a specific whats app group referring to the Claimant’s family as the Clarkashians as opposed to being used individually. We are also satisfied the term was used in a derogatory, mocking sense and not in a complimentary manner.

3.71 It is also not in dispute that an attachment was a message found at [167] where GW used offensive language about SC and JM, including calling JM a “monster of a thing” and “retarded.” It cannot be dated other than again it must have been during the course of the pandemic as there is a reference to SC wearing a face mask. The attachments also included the draft email sent by FS to GW relating to accessing the Claimant’s medical records, set out already above. There was also a photograph of an extract of a patient’s records (which included the patient’s first name) and which detailed a telephone conversation with the patient’s mother about a highly sensitive, personal matter relating to the patient.

3.72 There is a dispute about whether TC’s email attachments included a whats app in which GW said “ I’m angry, sad, stressed, pissed off etc. All to do with Monday I’m sure. And tired, slept but doesn’t feel like I did. Up and down, prone to meltdowns and shouting. Not great company. Already told VT I’m working on my CV and planning to leave asap because Tracey is a cunt and her daughter is a fat prick. Tracey asked me to find out why the accountant has put our bill up from £400 to £600. I told her to fuck off, its her fucking job to do that. And I’m on leave, soon to be sick leave, the narcissistic shit house. Got Liz to ask whats going on. Thus was the reply from Ken’s right-hand woman: The message then contained the forwarded message from SR as set out already above. These messages would have originally been sent in March 2021. There is also a dispute about whether the attachments then included the follow up comment set out already above where GW said “So everyone thinks Tracey is a cunt, not just me!” RB’s evidence was that she saw this material later when the Claimant emailed it on to RB at home on 29 December, as she thought the Claimant had received further material from TC following TC’s original email.

3.73 If these messages were not with the first tranche they were therefore certainly received by the Claimant not long afterwards. Importantly they were also part of the grievance complaint that BS later investigated because at [247] he specifically mentions alleged inappropriate comments by GW as including describing the Claimant as a cunt and her daughter as a fat prick.

3.74 The Claimant was distraught, upset and devastated about the messages although she did not initially fully take it all in as she was in shock and disbelief at its content.

3.75 The Claimant showed the email to RB. RB and the Claimant then went to speak to GW about it. There is a dispute as to whether GW initially denied being the author of the material and saying TC must have hacked her phone. On balance we find it likely that GW said this: it would be human nature to do so in the circumstances as an immediate reaction.

3.76 On 23 December 2021 GW spoke to the Claimant and RB admitting that she was the author but that the messages had not meant to be seen by the Claimant or anyone else and that GW had been in a bad place when writing them.

3.77 The Claimant was not in work in the Christmas period and was increasingly distraught about GW and FS thought and had said about her, her family and JM. The Claimant had a severe exacerbation of her anxiety and could not stop thinking about the messages.

3.78 On 31 December 2021 the Claimant sent an email to RB and CK attaching some material asking them to read the email that had been sent to JM, saying that she and JM were devastated by the messages. The Claimant said: “particularly with reference to Felicity Smith admitting that she has accessed my notes, read through the consultation, looked at what Dr Richard had prescribed me and Dr George being aware of this and not doing anything about it…” The Claimant said she knew that FS had been previously lying but had been coerced by Chinese whispers at the practice that FS would come back against the Claimant as GW was FS’ friend. The Claimant said that at the particular time with FS the Claimant was going through severe family stress and did not have the strength at the time to take it any further and had at the time decided just to try and carry on. The Claimant said her life at the surgery since 10 June 2020 had been a living nightmare. She said she had reported the FS incident to Bright HR who would be in touch with CK.

3.79 The Claimant then said “I am torn in half as to what to say or do about Dr George as she is a Partner at the practice and referring to me as “an old knacker and a decent tumour with a long root” has broken my heart. But I am concerned about the Doctor level at the practice, and how this would impact on Dr Clipps, and I am going to see if we can talk this matter through with Dr George.” The Claimant said she felt her life at the surgery had come to a devastating end and she was considering tendering her resignation on health grounds but felt she needed to take advice. She said she had cried continuously for days over all of this and her anxiety was uncontrollable. She apologised for being unable to see CK that day but said she was in floods of tears and just wanted to stay away from everything. The Claimant said RB had brought the contents of the Claimant’s office home and the Claimant would ensure the accounts were ready and she would provide a list of payments from QOF, Covid Clinics and all other monies to ensure CK was completely in the loop. The Claimant said she would pay bills and salaries at home until she reached her decision, which would be in days. She said she hoped she could find the strength to speak to CK.

3.80 RB was working from home and probably in early January 2022 mistakenly sent the TC material to print in the reception area of the surgery. Some staff then saw the material until ME gathered the documents and put them in a sealed envelope. ME marked them as confidential and left them on the Claimant’s desk. This made the Claimant feel even more unable to go into work and face her staff who would have seen what FS and GW thought of her and the Claimant’s medical condition.

3.81 On 11 January 2022 the Claimant showed CK the messages and screenshots in a consultation with him at the branch surgery as the Claimant felt unable to go to the main surgery and face people.

3.82 The Claimant alleges that CK told her he had previously received an internal message that contained hate speech about him from GW to FS but he chose to let it go. She says that despite her distraught state CK advised her to let go of the hate. She alleges that CK advised her to carry an exercise wheel with her at all times to get rid of the stress and got his exercise wheel and showed her how to use it, laying on the surgery floor. She say she found it embarrassing. The Claimant alleges CK showed no regard for her devastation and anxiety and prescribed her a short course of diazepam and told her to take a couple of weeks off work. She alleges that CK said she should work from the surgery, and to let things go for the sake of the surgery, but that he did give permission for her to work from home. The Claimant alleges she told CK that the staff and public had seen messages about her which included her medical history and which were derogatory, discriminatory, made heavy reference to her mental health conditions and contained hate speech and serious breaches of data. The Claimant said to BS in the subsequent grievance investigation [248] that she asked CK how he would feel if his staff he was responsible for had seen such a message and that CK had just said: “pharr its too much, its too much.”

3.83 CK accepts that he showed the Claimant the exercise wheel but denies that he advised her to “let it go” or “let go of the hate.” He says the Claimant found the demonstration of the exercise wheel amusing. CK said in evidence that he did not at the time fully read all of the TC material and that he did not know that the Claimant was complaining about discrimination and that the Claimant did not say that. He denies showing a lack of compassion for the Claimant and says he was doing his best to resolve a difficult situation between his two most senior colleagues.

3.84 CK’s evidence was that at some point he discussed the matter with GW and told her that the Claimant was hurt by the comments made in the messages and advised GW to apologise to the individuals concerned. He says he told the Claimant about this, and that the Claimant confirmed that GW had apologised. He says he told the Claimant that he respected her and appreciated her in her role in the practice and he was sorry she had been subjected to such hurtful messages. He says the Claimant told him that she was not a vengeful person and that she had accepted the apology from GW. CK alleges that he understood the Claimant had accepted the apology and that was the end of the matter.

3.85 There is a GP entry recording there was a long chat and: “increased stress from multiple triggers, exacerbated by leaked text messages involving work colleagues. Tearful.” On 14 January 2022 the Claimant said following a consultation with CK earlier in the week she was self-certifying for 28 days with work related stress and anxiety.

3.86 At some point around this time RB spoke to Bright HR at the Claimant’s request and the Claimant gave RB the contact details. The advice given to RB by Bright HR in relation to FS was that the Claimant had exhausted the employee procedure and should instead bring a complaint as a patient. We find there was no appreciation by CK, or RB or seemingly in the advice given by Bright HR that there was new element to the Claimant’s complaint that she was alleging that FS had been untruthful in the 2020 account. RB said that it was also Bright HR’s advice that the Claimant was in a difficult situation as a manager but there were discussions about making a referral to the GMC in relation to GW. RB said she did not know what else was being done at a management level above her in relation to GW and HR. CK told us he did not speak to Bright HR himself as he did not have the contact details. At some point the Claimant made a complaint about GW to the GMC but we do not have the details of when this was. Also at some point GW says she referred herself to the GMC in relation to the screenshot of patient data sent to TC but again we do not have the details of this including the dates (and indeed BS’s report says that GW was advised by the MDU she did not need to report it). The eventual GMC outcome (again we do not know when this was), was that GW should engage in reflective practice with her appraiser.

3.87 On 20 January 2022 the Claimant presented a complaint about FS undertaken as a patient of the surgery [128]. This must have been in response to the advice RB had received from Bright HR relating to FS.

3.88 As already referred to, one of the items attached to TC’s email to the surgery was a screenshot taken by GW of a consultation with a patient of the practice. It contains the patient’s first name and the consultation was about a sensitive matter. At some point the Claimant specifically spoke to CK about this and her concerns about a breach of patient confidentiality. The Claimant alleges that CK did not want to take any action about it. CK told us that he told the Claimant that they needed to investigate to establish who took the screenshots, why and to whom they were sent and to seek guidance from the Data Protection Officer (DPO). CK told us that the DPO was BS. It, however, later came to light that BS was not appointed as DPO until much later on. RB told us that at the time of the events in question she understood the DPO to in fact be CK. CK told us that he had told the Claimant to take advice from the DPO for completeness sake, but that he was not overly concerned about the screenshot because it did not contain the patient’s full name. CK said in evidence it was therefore not a big worry when the Claimant did not get back to him about what the DPO had said.

3.89 Weighing all the evidence we have from around this time, on the balance of probabilities we consider it likely that as part of the GP consultation CK talked about exercise and showed the Claimant the exercise wheel. We find it was an innocuous interaction and done as part of CK’s clinical advice when discussing with the Claimant ways of managing her condition. It was also in the context of the Claimant and CK having a long, close relationship and we do not find that at the time the Claimant would have found the demonstration upsetting or embarrassment.

3.90 We find that at the time the Claimant was very distressed and was unable to face coming into work. We do not find that CK was unsupportive of this and consider it likely that he was giving the Claimant flexibility and time and space as he had done before. There was a fluid arrangement between them, as had happened before, that the Claimant could be on sick leave or could be doing some work from home if she felt able, or a bit of both. The Claimant was doing some work because there is in the hearing file an email exchange the Claimant had with EB on 17 January 2022 [181] where EB emailed the Claimant with some figures about the Covid vaccines where she said, in effect, the figures would not be looking a good as the Claimant was expecting as they had been vaccinating patients from other surgeries or had sent vaccinators on quiet days. The Claimant emailed a response to say: “no wonder my bank balance is so low I was led to believe that the cluster funding would be shared out according to list size and sessions provided (required sessions)…”

3.91 We accept that CK probably did not read all of the TC material at the time. We find it likely that he did say to the Claimant, words to the effect of to try to let go of the hate. We do not think that CK meant to cause distress to the Claimant in doing so, and that he was trying to be supportive to her. But we think it likely that CK wanted there to be a resolution and for everyone to move on and he hoped that if GW apologised that the Claimant would find a way to move on. However, even if the Claimant at one stage said to CK that she was not a vengeful person and would accept an apology from GW we do not find that CK in reality really could have thought that everything was all resolved and it truly was the end of the matter. The Claimant was not attending work and was not able to set foot in the building; that had not been resolved. Further, as set out below, as time continued to tick away, the Claimant was at times communicating to him that she was unable to find a way to move on. Likewise, GW said to us in evidence that she thought it unlikely at the time, even if she hoped to the contrary, that an apology would just fix things because of the impact of events on the Claimant. In truth the situation festered on.

3.92 We consider it likely, and find, that CK found the situation difficult to deal with for a variety of reasons. Firstly, he generally did not get involved in these kind of managerial issues having historically left them to the Claimant and they were not his forte. CK lacked the time and the skillset to properly pick it up and address it. CK was very busy with clinical work and he clearly is a very committed GP. Secondly, the situation with GW was different compared to the situation with FS, because GW was his partner and we consider it likely that CK would not want to disrupt the partnership. Thirdly, we consider it likely and find that CK struggled with the content of what GW had said in the messages. Whilst we would accept CK probably did not sit and read in detail the minutiae of each message (which is evidence in itself he found the content difficult) we find it likely that CK knew enough to have an overarching sense of what it said and the types of comment GW had been making about the Claimant and her family. We consider it likely that CK knew there was discriminatory material in there and that this was one of the reasons why he found it difficult to deal with. We consider it likely that the Claimant did say to him words to the effect that all and sundry had seen messages about her including her medical history and were derogatory and discriminatory in terms of age, ability and made heavy reference to the Claimant’s mental health condition. We think it likely she asked CK how he would feel if staff he managed had seen such material about him and that he probably did say words to the effect: “Pharr its too much, its too much.” It is the type of statement we consider it is likely CK would make and is similar to the statement he made later on that it was all very stressful for CK to deal with. Again we do not find that CK was intending to be unsupportive in doing so, but that it is evidence that CK was struggling with the situation, and part of that struggle included the nature of the material concerned.

3.93 In relation to the Claimant specifically taking the incident of the screenshot of sensitive patient data to CK, here on balance we do not find that CK told the Claimant to report the incident to the DPO or seek advice from the DPO. CK cannot have done so if there was in fact no DPO in place and if CK was the DPO he did not know that himself. We find it more likely that CK was reluctant to do anything. CK accepted in cross examination that the patient concerned, or someone close to them, would be able to identify them from the screenshot. The incident also begged the question of what may have happened with the personal data of other patients at the surgery at the hands of GW. We therefore do not accept that CK truly saw it as not being a serious matter. We consider it more likely, and find that CK did know it was serious, and an unlawful act and because of that CK did want to take any action about it because of what it would expose. It was a source of additional stress to the Claimant because whilst it was not her personal health record she was troubled by it and how it reflected on the care of and respect for patients and patient confidentiality at the surgery where she was practice manager with responsibilities. It was also troubling to the Claimant because it linked in with her sense, particularly in light of the other material sent by TC, that if GW did that to a patient, what was GW doing with the Claimant and the Claimant’s family’s records. February 2022

3.94 On 1 February 2022 the Claimant, as a patient requested a 1 month sick note although we find the reality of the working situation was probably that the fluid arrangement remained in place.

3.95 On 3 February 2022 RB sent to the Claimant a response to the fresh complaint about FS [127]. RB’s response forwarded on a response from FS where FS said “I will reiterate my original statement about not being able to access the notes on the 10th June. I do not remember accessing Mrs Clarkes notes on 10th June 2020, however, I will point out paragraphs 7,8, and 9 in my initial email response on 28th August 2020 I indicated that without accessing the notes again to see why I would have accessed them that I was unable to remember – which was the truth and I was not being dishonest in any way. This remains the case…” FS said the draft version had been given to a peer to review and had been edited as it could create more unwanted upset, and had not meant to be seen by anyone else. FS said: “I felt that it was important to discuss my concerns regarding Mrs Clark and her immediate family’s drug seeking behaviour, unrealistic expectations, personal alterations of notes, additions of clinical codes and issuing of acute medications to a GP who was new and at risk -something that I would discuss about any patient that I thought was jeopardising the safety of a colleague.” FS referred to her ongoing concerns about conflicts of interests and said that the complaint had only been issued as a “patient” complaint because the previous complaint the Claimant had raised with HR as a manager had been dismissed.

3.96 RB said in the email to the Claimant she hoped the response had addressed all the questions and provided some assurance that lessons would be learned from the experience. The Claimant was told if she wanted to discuss it further she could contact RB or the Public Services Ombudsman for Wales.

3.97 At some point, we do not have the dates, the Claimant made a complaint about FS to the NMC. Again we do not have the paperwork but understand from BS’s grievance report that the NMC said in June 2022 that there was no evidence of a serious concern which would require them to take any regulatory action in the matter. We do not know if there was a specific complaint before the NMC alleging that FS had been untruthful in her 2020 response to the initial complaint.

3.98 Also at some point CK said to the Claimant that FS had authority to access patient records and FS had acted in her capacity as a triage nurse and that if the Claimant did not approve of FS accessing her records then she should consider registering elsewhere. CK said that this applied to all staff at the practice and GW said it was a recommendation made by the Royal College of General Practitioners (RCGP) who had been brought in to do a supportive review of the practice.

3.99 On 22 February 2022 the Claimant attended a meeting with CK and GW at the branch surgery as she remained unable to attend the main surgery. The Claimant had prepared some notes although she never handed them over [183-184]. This was the first time the Claimant and GW had seen each other since GW admitted sending the messages.

3.100 GW had prepared an agenda, which she had on her phone, and she sent the Claimant a copy that evening. There is a heading of “current complaints and concerns” with written underneath “-in house mediation – independent and objective investigation by HR (at cost).” We heard different evidence about this. The Claimant said she could not recall these things being discussed. GW said that the Claimant said these things were not needed as the apology had been accepted and they were moving on. CK said in evidence that the in house mediation was what he thought he was doing at that time and was ongoing. Given the lack of consistency in evidence we cannot find that the Claimant expressly rejected the notion of there being a formal investigation process, and we consider it is likely that the focus of the meeting was not directly about the situation between the Claimant and GW but more about things that needed to happen in the surgery going forward. But we do not find that means the Claimant had expressly accepted that everything historic had been resolved.

3.101 There is a section headed “management” which refers to things such as updated contracts of employment, updated policies such as social media and auditing of notes, practice manager availability and contact, surgery hours and working from home. There is a heading of “moving forwards” which has written underneath “-Assistance/support required to achieve the above? - Offer of support from the Cluster.” We consider it likely that these were the kinds of things the discussion was focussed on. The Respondents said in evidence there were backlogs of managerial tasks such as the payments of some outstanding bills. The RCGP analysis had also identified other matters such as updating staff contracts to reflect the partnership of CK and GW, and the updating of other in house policies. It is likely that the Claimant’s working arrangements were discussed. In our judgement CK and GW were probably in the ideal world keen to get the Claimant back in the workplace and accessible to the staff the Claimant was responsible for managing. It is likely that both working relationships and workloads in the surgery were under strain, particularly individuals like RB. However, we also consider it likely that CK and GW were realistic and did not place pressure on the Claimant to return and agreed, in the face of how the Claimant presented, that the Claimant could carry on working from home at that time. They were going in the meantime to also discuss with the local Cluster whether there may be some other support available.

3.102 GW said in her the message to the Claimant that evening that it was good to see the Claimant and she was pleased the Claimant felt comfortable enough to attend, although she appreciated it was difficult. GW said that she, CK and RB had input into the agenda and she hoped the Claimant did not find it menacing or accusatory as that was not how it was intended. GW said the Claimant had brought up all the points that GW had wanted to discuss. GW then said: “We are broken as a surgery. Nurses say they’re “ok”. No, they’re stretched and stressed covering other duties as well as their own. Divided. Upset. Everyone’s worried about their jobs. This situation needs sorting. When I told Clipps I was resigning, he said he’d retire and give the surgery to the LHB. Its bad. All I would like is to do the job I trained for and love, then go home. For my colleagues to feel valued and happy at work would be a bonus.” To us the messages displays a remarkable lack of self-awareness of GW’s involvement in the cause of the difficulties the Claimant was having in attending work, but we accept it was probably a fair reflection of the state of the surgery at the time. We do not know the date that it happened but at some point SC posted some of the TC material on to social media which we were told caused a lot of difficulties, including patients coming in and asking about it.

3.103 CK said in evidence that GW had not told him she was resigning. He said at one point in a discussion with GW he had said if she left he may retire and hand the surgery back to the Local Health Board and it was on the back of discussions about stress and workload. GW said that when CK spoke to her about the Claimant’s upset with the messages she had offered to go if it meant the Claimant would return to work, and CK had then made that comment. We think it likely that at some point there was an exchange between CK and GW where he said if she were to leave one option he would consider would be to retire and hand the surgery back to the health board.

3.104 The Claimant sent CK a whats app thanking him for showing kindness that day. He replied to thank her for coming to the meeting and said he thought it was very productive [185].

3.105 The next day the Claimant sent a staff email. CK and GW were not aware that she was going to do this. The email said the Claimant was making a phased return to work with the support of Bright HR and the partners. She said that following a meeting with the partners they were keen to start a new chapter from 1 April 2022 and contracts of employment would be written up to reflect the new partnership and with updated job descriptions. Policies and procedures were to be updated and a new time recording and payroll system introduced. The Claimant said she hoped for better times ahead and her plan was to work one day a week initially in surgery and then to gradually increase that [192- 193]. March 2022

3.106 On 1 March 2022 the Claimant saw CK in his role as GP. The entry records the Claimant being upset by a call from Bright HR about an alleged complaint from a member of staff and a family health concern. CK suggested a break from work with the Claimant saying she finds work a distraction. There is then a sick note saying the Claimant was unfit for work 3 March 2022 to 4 April 2022. By then the Claimant had registered with a new GP practice. Despite the sick note the Claimant carried on doing some pieces of work. In particular, she was preparing paperwork for the accountants for the end of year accounts.

3.107 On 9 March the Claimant messaged CK asking for the latest account that was needed for the imminent RCGP support package. The Claimant said: “I hope to have a chat with you soon about my position at the practice I’m finding it extremely difficult to return and would like to work out something to help both the practice and myself.” CK replied to tell the Claimant to feel free to come in for a chat any time and he would support the Claimant as much as he could [186]. The Claimant’s positivity expressed in her all staff email of 1 March 2022 had therefore been short lived.

3.108 Later that month the Claimant messaged CK asking him to look at the bank account to make sure they had enough funds to cover everything. She said she was on annual leave the next two weeks and at that point said she wanted to assure CK that she was coming back to work and was feeling more positive. So again at that point the indication was a bit more positive. CK was himself also going on leave and in his reply he asked the Claimant to just help to get enough clinical cover for that leave.

3.109 By 14 March the Claimant had flipped back to being less positive and emailed a medical director in a local health board saying she was experiencing problems at the practice, was unable to work at the time, and had moved GP practices. She referred to what had happened and said CK had been excellent but she thought it had gone far beyond his capability. The Claimant said she felt unable to work but reluctant to finish through no fault of her own, and want to get an opinion about what had happened and whether she had grounds to stand on rather than it being brushed under the carpet and her having to suck it up. The medical director was himself absent from work and the assistant area medical director replied offering to speak [195]. On 17 March the Claimant replied saying: “I have now realised that I have the opportunity to have help and support not only from my practice but also from our Bright HR service that we have at the practice. Therefore I wish to cancel our proposed meeting.” The Claimant was on annual leave 15 March to 1 April 2022 [292].

3.110 On 28 March CK and GW attended a meeting with the Cluster lead, Alison Hughes (AH). It had been arranged whilst CK was on holiday. RB told the Claimant about the meeting and the Claimant sent an email [198] referring to partnership issues at the practice and expressing concern for CK’s welfare with the pressure of work CK was under. The Claimant suggested an agenda be set. On 29 March the Claimant messaged CK saying: “I’m so sorry you’ve come back to more stress, not what I had hoped for sadly.” The Claimant said she would come in at the weekend to gather the rest of the stuff she needed for the accountant. The Claimant said she wanted to know the outcome of the meeting the day before. She said: "I truly do not know which way to turn as I’m heartbroken it’s a situation that’s got worse and worse as time has gone on and I myself have been perceived as the person that started all of this which is truly unfair and untrue – I wish that Dr George could understand the devastation this has had on my health, she had never discussed why she did what she did and living with this is impossible. I’ve protected Dr George despite the hateful remarks that have been shared.” So again, by this point the Claimant was back feeling negative about the potential of resolving things and moving on.

3.111 We do not know the exact sequence of events with the Claimant’s interactions with Bright HR (nor indeed RB’s as set out above). But the Claimant told us in evidence that they were not ultimately able to help her, saying that there was a conflict of interest.

3.112 On 30 March CK emailed the Claimant [200] saying: “I hope you are as well as can be expected at this stressful and uncertain time. In addition to seeking solutions to the ongoing grievances, we are also trying to stabilise the surgery and move forwards. The RCGP support package will be in place soon and the LHB have agreed to fund a Locum Manager to support us whilst you are recovering. Given the sudden stressful situation, as you know, we have a duty of care to ensure that you are receiving the rest you need to facilitate your recovery. With this in mind we need to ensure that you are not undertaking any practice work during this period. We require you to cease logging in to access any practice business, emails, accounts, or payroll. We believe that this is in your best interests and will ultimately aid your healing process. At the end of your period of sickness I would suggest that we meet to arrange a phased return to work.”

3.113 CK also messaged the Claimant saying: “Its very stressful for me to have to deal with this. I strongly advise you to rest without having to worry about the work issues at the moment. We are under a lot of scrutiny by the health board and we have a short time frame to sort things out. Wish you a speedy recovery.” CK also said he had sent the Claimant an email with the action plan they produced following the meeting. Again, he asked the Claimant to take a good rest and said he believed it was in her best interests to just relax at the moment.

3.114 The Claimant was upset and suspicious about this as she had previously had a very close working relationship with CK and had the fluid and flexible working arrangement in place. On 1 April 2022 she went to see him in the branch surgery. CK thanked the Claimant for going in and said that he had lost sleep over the email as wording can be misconstrued. He told the Claimant that her job was safe and that it was only being done to sustain the practice business in her absence. The meeting ended positively with CK asking for a hug.

3.115 The Claimant is suspicious that there was a plan at this time to force her out. We do not find that there was. We find that the surgery was under genuine pressures and under scrutiny from the Local Health Board. The RCGP review had made various recommendations that involved management action and that needed to promptly happen and it was difficult (although not her fault) with the Claimant not being in work and working from home only on an ad hoc basis. CK had a discussion with the Cluster lead, AH as to whether any support was available, such as a locum manager to offer support whilst the Claimant was recovering. AH was able to agree this and to make arrangements for SM, to work part time as a locum practice manager in the Claimant’s absence and to arrange 3 months’ funding for this. CK said in evidence, and we accept, that the direction to the Claimant to cease working from home came from the discussion with AH at the meeting and her recommendation that if the Claimant was on sick leave, the Claimant should be doing just that and take the full time out to recover and recuperate. They had the locum funding to support this and take forward the RCGP recommendations in the meantime. But CK’s email directing this was clumsily worded and it is also understandable that the Claimant felt upset by it given working from home whilst on sick leave was a practice that had been in place off and on for a long period of time and doing some work from home was important to the Claimant in giving her something to focus upon. April 2022

3.116 On 8 April the Claimant went to see SM and drop off the paperwork the Claimant had prepared for the accountants. The Claimant alleges that SM went to the cupboard in the Claimant’s office and pulled out a bottle of prosecco/fizzy wine and said: “why have you got this here, I want it removed before health and safety are involved.” The Claimant says she said it was not hers and had no knowledge of it. She says it upset her. She says that she has at time struggled with alcohol as part of her mental health condition and alleges that SM’s actions were motivated by that knowledge. The Claimant said SM was aware of the staff previously having had “Fizzy Friday” drinks in work, and because SM would have seen the Claimant out socially.

3.117 SM says that the bottle was in the cupboard in the Claimant’s office and so she had simply thought it might be the Claimant’s and that she had just asked the Claimant if it was hers and if the Claimant would like to take it as she did not feel that alcohol should be kept on the premises. SM said she had been aware of previous “Fizzy Friday” workplace drinks, as she referenced it in a previous email to the Claimant about a Cluster vaccine payment, but she did not know the Claimant struggled with alcohol.

3.118 We accept SM’s evidence in that regard. We do not find that SM knew the Claimant struggled with alcohol. There is a big difference between that and social drinks in the workplace. SM had only been at the Respondent’s practice a matter of days. SM simply asked the Claimant if the Claimant would like to take the bottle because it was in the Claimant’s office/cupboard and so SM just thought it might be the Claimant’s. We do not find there was any more to it than that, and it was innocuous conduct.

3.119 The papers the Claimant had dropped off for the accountants were a pile of papers in a carrier bag. SM was going to deliver practice accounts to the accountants and so decided to review the papers that the Claimant had dropped in. It was a large task so she asked RB to assist. When they were going through the papers and the bank statements SM noticed the transfer of monies from the practice accounts to CTC Ltd. They could only find one invoice in the bag of papers provided by the Claimant. SM said in evidence that RB told her it was the Claimant’s company. SM recalled the conversation with the Claimant where she had advised the Claimant that a limited company could not hold a contract with the Local Health Board.

3.120 SM and RB had a discussion with CK and GW. CK said he had not authorised the payments made to CTC Limited and told SM that there was no signed agreement in place. SM spoke about her conversation with the Claimant in May 2021 and her advice that it could not be done through a limited company (albeit of course that conversation was in fact about CTC Limited holding a contract directly with the Health Board) and concerns about indemnity cover. SM also said that the monies out to CTC Limited seemed to exhaust all the vaccine funds that had come in from the health board. All the witnesses spoke about how upset CK was and we accept that was the case. As set out earlier, we accept he was not aware of the individual payments being made to CTC Limited, and CK was also being met with the information that the money that had come in had apparently all gone to CTC Limited. We consider it likely that CK was remembering the concerns he had expressed in his first meeting about the potential for a financial conflict of interest on the part of the Claimant. We think it likely that CK felt very conflicted between his loyalty to CK and the trust he placed in her, and yet what seemed to be potentially troubling information coming to light. It was also in the context of the practice having financial difficulties at the time with an ever increasing overdraft. He thought what had happened was not something he had agreed to.

3.121 A decision was made to send a formal letter to the Claimant seeking an explanation and seeking the return of the funds. We were told in evidence that the Respondent was aware that if the Claimant returned all of the money then the Claimant would have born the cost of providing the vaccination service for all of the Respondent’s vaccinated patients. However, CK’s view was that the funds should be returned whilst the matter was looked into. He said they needed to understand what had happened, understand the cost of the nursing services and reconcile the money, and if appropriate decide upon a fair division of the funds. The Respondent only had one invoice and the invoice they did have (and indeed the others the Claimant later sent) does not give any kind of breakdown as to nursing costs or numbers vaccinated. CK dictated the letter for SM to prepare.

3.122 On Saturday 16 April 2022 (Easter Saturday) the Claimant received a recorded, undated letter signed by CK and GW. The Claimant was shocked by its content. The letter said: “The surgery has, on undertaking a review of its bank account with HSBC, discovered that 10 transfers to a total sum of £17,151.61 have been paid from this account to CTC Ltd. We have also found one invoice dated 16th November 2021, which reconciles with one of the payment transfers to CTC Ltd. This invoice is £220.00 and says it is for administrative support. The invoice has a signature of C.T. Clark and CTC Ltd. The address of CTC Ltd is…your home address. We require from you by 4.00pm on Wednesday 20th April 2022 the following: 1. A transfer of the sum of £17,151.61 back into the surgery’s HSBC account. 2. An explanation of why the 10 transfers were made.”

3.123 The Claimant emailed CK and GW saying: “Can I please refer you to the agreement (Documented) in April 2021 that was entered into by yourselves and CTC Ltd. That document details the obligations of the parties to the agreement, the services CTC Ltd provided to the surgery and the costs of that service. To demand the return of monies paid to CTC Ltd implies that you suspect I have been involved in fraudulent and dishonest practice. This is something I wholly deny and feel deeply upset and offended by this accusation. I believe that this allegation is further evidence of me being bullied out of my position as Practice Manager at the surgery. Dr Clipps:- you know only too well how vulnerable I am at this time, the accusation made in your letter have done nothing to help in my recovery.”

3.124 The Claimant therefore suggested that there was a documented agreement in April 2021 setting out the terms of the agreement between the Respondent and CTC Limited. It gives the impression that the Claimant was saying that there was a formal written contract, although we know there was not.

3.125 The Claimant sent a further email on 19 April [201] saying that she was the Director of CTC Ltd which she had legitimately created on 1 April 2021. The Claimant said she was attaching details of payments made by herself, as Practice Manager, to this company for services provided in accordance with their agreement to vaccinate patients sharing 50% of the revenue generated. The Claimant said she had signed agreements dated 13 May 2021 agreeing to the surgery having the services of vaccinators delivered at another site e.g. Local Vaccination Centre and a copy of a signed agreement dated 14 December 2012 agreeing to the surgery having services of vaccinators delivered at the Hafod Social Club site. The Claimant said she would not be transferring the funds back. She said: “As per surgery procedure, bank statements are viewed on a weekly basis by Dr Clipps, that clearly show what transactions have taken place to businesses and companies who provide a service to the surgery, including CTC Ltd.” The Claimant said she also referred to the email she sent CK that morning with a breakdown of monies paid to CTC Ltd from 1.4.2021 and net income (amount deducted by Crane Medical Centre and 50% to Gardden road Surgery) received from the vaccination programme. The Claimant said there was in fact a shortfall of £13,328.39 owed to CTC Ltd. The Claimant also messaged CK asking him to check his work email asap and that she would like to speak to him urgently. CK did not respond. He said he did not do so because he thought it was best to follow a formal process. Indeed it ultimately turned out that they never spoke directly to each other again.

3.126 SM replied to the Claimant on 19 April 2022 saying the purpose of the initial letter was to ascertain the reason for the transfer of money and the return of the transferred sums. It was said these were reasonable requests and cannot be allegations of dishonesty when the practice was not aware of the reason for the transfers, and nor were they bullying. The email asked for details of the agreement the Claimant was referring to and documents evidencing it. The email also asked for copies of the agreements referred to and all invoices it is claimed were raised by CTC, and full details of the number of vaccinations on each date. The email said: “We would be grateful if you could provide this information by 4.00pm on Thursday 21st April 2022.”

3.127 The Claimant replied on 20 April saying it was unreasonable to expect the volume of information requested by short notice by 4pm on 21 April. The Claimant said they were aware she was off work with work related stress and had been encouraged by CK to rest without having to worry about work issues. She said to receive the intimidating letter on an Easter bank holiday had caused great concern, upset and anxiety, exacerbating her symptoms and asked what had happened to the working relationship of trust and openness. The Claimant referred to the TC material about GW wanting to get her sacked from the practice for NHS fraud and asked if this was GW’s attempt to end her career.

3.128 SM replied on 20 April to say again that the purpose of the request for information was to fully understand the movements of money and time was extended for the Claimant to respond to 4pm on 25 April 2022.

3.129 On 25 April 2022 SM further chased the information. The Claimant replied to say she had sent a response to the partners. We cannot locate any such further response, although the subsequent grievance investigation [251] records the Respondent saying that on 25 April the Claimant had replied saying she was seeking legal advice.

3.130 On 27 April 2022 the Claimant was sent an invite to an investigation meeting to take place on 6 May 2022 to consider allegations of misconduct. The invite said the alleged misconduct related to the unauthorised payment of sums of money totalling £17151.61 to CTC Ltd. The letter said once the investigation was completed they would then consider if there was a case to answer and whether formal disciplinary proceedings were needed. The Respondent’s witnesses said a decision was made to invite the Claimant to an investigation meeting because of the continued failure to respond to requests for information despite extensions having been given. May and June 2022

3.131 On 5 May 2022 the Claimant emailed SM to say she was not well enough to attend the investigation meeting and said if there was an urgency to progress, the questions should be emailed to the Claimant. The Claimant said she would otherwise provide an update the next week. We do not have the document but according to the subsequent grievance investigation [251] the Claimant was sent some written questions on 6 May 2022 and that on 9 May the Claimant sent an email saying she would answer the questions by the end of the week. It is said the next communication was from the claimant’s solicitors which did not answer all the questions that had been raised.

3.132 On 13 May 2022 the Claimant’s solicitor sent settlement proposals to the Respondent. The letter is marked without prejudice but the parties agreed it could be before us. A further open letter was also sent about the disciplinary investigation. The letter said they were confused as to why the Claimant was under investigation as they had seen the paperwork in which it was agreed the surgery would retain 50% of the revenue and incur zero costs and CTC Ltd would use 50% of the revenue to cover costs and keep any profit left over. They said: “There is a difference between a new employee of yours saying “I wasn’t here when this was arranged, can you let us know how the CTC vaccination arrangements work and send the paperwork” and inviting someone to a formal investigation meeting under the disciplinary procedure with the allegation included as “unauthorised payment.” The solicitors letter said a grievance was to follow relating to the Claimant’s treatment over the previous 2 years and said that the Claimant had also made public interest disclosures regarding data protection and patient confidentiality. It was said that the disciplinary process had commenced as a result of the issues the Claimant had raised and was a pre-determined process to exit her from the Surgery. On 25 May 2022 the Claimant raised a subject access request.

3.133 The Respondent paused to allow the grievance to be presented and on 30 May SM also wrote to the Claimant inviting her to a welfare meeting to discuss the Claimant’s health and what could be done to support a return to work. On 31 May the Claimant emailed SM in response saying she was not well enough to speak on the phone or attend a meeting that week. The Claimant said she was in the process of compiling a grievance letter with her solicitor. She said that once steps were taken to deal with the issues raised she hoped to then be able to return to work.

3.134 On 13 June 2022 the Claimant’s solicitors lodged her grievance. The complaints included:

(a) that the initial grievance against FS was not taken seriously and the Claimant was instructed by CK it was best not to rock the boat and GW had put pressure on the Claimant not to push it due to who the Claimant had put on the shielding list;

(b) the accountant’s message accusing the Claimant of being inept, and that CK had not offered support but told the Claimant to carry on and find another accountant;

(d) the 22 December 2021 email attachments and that CK had said it was best to let go of the hate and had not taken it seriously;

(e) that there was an intention to remove the Claimant from the surgery including via the disciplinary investigation process. The letter said that the TC messages included screenshots of patient notes that GW had sent to TC which was a serious breach of data protection which the Claimant had reported to CK. It also said that the Claimant had reported GW to the GMC. The grievance sought an apology, confirmation of support going forward, the disciplinary investigation to end and the money owed to CTC Ltd to be paid. July 2022

3.135 On 6 July 2022 SM emailed the Claimant stating that whilst the Claimant had been on sick leave for 6 months the practice had been paying full pay, and: “To this effect I am emailing you to inform you that you will no longer be paid full wages and your wages will be halved this month in line with the practice’s sick pay entitlement.” SM at that point in time understood that the Claimant had been off work since December 2021 and did not know about the arrangements for home working.

3.136 The Claimant responded to ask how the first day of sickness had been calculated. SM asked the Claimant to clarify when she first went on sick leave as SM understood it was at the end of December. The Claimant said she worked from home up to and including 30 March 2022 with the agreement of CK. The Claimant said during the time she carried out normal duties including attending the meeting on 22 February 2022 and that it was understood by all at that meeting that the Claimant would continue to work from home. The Claimant said her sickness absence started on 31 March 2022 [219]. SM replied to say she understood that the Claimant went on sick leave in December 2021 but she had not been able to find any sick notes prior to 3 March 2022 and so the Claimant’s sick leave began on that date. SM said the Claimant would be paid her full month’s wages. The Claimant replied again to say that she was working from home with the knowledge and encouragement of CK and GW and: “Whilst being allowed to work from home when signed off sick is somewhat of a grey area, it is not unheard of for this to happen, but can represent a breach of the duty of care shown to me as my employers.” The Claimant said the start date for her sickness absence should be 1 April 2022. The Claimant also said she was aware that other staff members had received sick pay for longer than 6 months and said she wished to understand the rationale behind the decision.

3.137 On 20 July 2022 SM wrote to the Claimant acknowledging the grievance letter. SM said that Bernard Seymour (“BS”) from Affinity Resolutions would hear the grievance as agreed on 25 July 2022 at the Wrexham Medical Institute. The letter set out a summary of BS’ understanding of the issues/concerns [365-366]. The Claimant was asked to confirm if it was correct. The Claimant did not, however, in fact meet with BS until 29 September 2022. August and September 2022

3.138 On 5 August 2022 the Claimant chased up her queries relating to sick pay [221]. On 11 August 2022 a response was sent to the subject access request.

3.139 On 6 September 2022 the Claimant emailed SM saying she had 14 days holiday outstanding for the year 1/4/21 to 31/3/22 and she wanted to be paid for it in her September salary [226]. SM responded to say that paying for unused holidays was in breach of the Working Time Directive and therefore the days could not be paid. The Claimant replied to say that she had not had the opportunity to take the days holiday and expected to be paid for them. SM continued to state it would be unlawful to make payment for untaken holidays. On 8 September 2022 the Claimant said again that she was legally entitled to annual leave she had not taken and circumstances prevented her taking the time off prior to 31 March 2022. On 12 September 2022 the Claimant emailed again to say she wanted a full rationale of why her sickness leave was only for a period of 6 months and that other staff members had received 12 months full pay. She also said she wanted the first day of her sickness leave to be 2 May 2022 as she had evidence that she was working in the month of April 2022. The Claimant said again she also wanted payment for her untaken leave from the previous year [231].

3.140 On 29 September 2022 the Claimant met with BS about her grievance. October 2022

3.141 On 10 October 2022 SM emailed the Claimant to say: “After careful consideration the partners have decided that they can no longer sustain paying you your full wages. They have at their absolute discretion made payment of your wages whilst you have been off on sickness leave. To date you have been paid SSP topped up to full pay. This means that you will only receive two weeks’ pay in October (up to 14th October) and no further payments will be made. Your contract of employment states that employees will be paid via the statutory sick pay scheme.” The Claimant replied to say that sick pay discretion had been exercised for other employees and she had added this as an issue in her grievance. The Claimant also referred to SM’s earlier email of 6 July 2022 which referred to half pay and asked why SM was now saying SSP only and not half pay [234]. The Claimant asked similar questions in emails of 13 October and 17 October 2022. In the email of 17 October 2022 the Claimant referred to SM having said (we do not seem to have the actual email itself) that the policy does not state half pay and that SM had said it had been a gesture of goodwill. The Claimant questioned why that goodwill had now stopped [237].

3.142 On 17 October 2022 the Claimant also emailed SM again [236] saying :“In light of me being on long-term sickness, I respectfully request, and am within my right, to have the period of 14 days annual leave that accrued in the leave year ending March 2022, could you please add these 14 days as holiday and pay them in my next salary.” The Claimant also asked to take 14 days out of her accrued annual leave for the current year.

3.143 On 19 October the Claimant met again with BS about her grievance. BS also interviewed CK, GW, RB, FS and LE albeit we do not know the dates of these interviews. We also do not know what any individual specifically told BS as there does not appear to be any interview transcripts or records or signed statements that are often produced in grievance investigations. BS in his report, when setting out the Respondent’s position, does not always identify who gave him the particular information. The grievance investigation report

3.144 On 14 November 2022 BS produced his grievance report [239 – 254]. In terms of paperwork BS said he had the letter from the Claimant’s solicitor and had considered a report from the NMC of 14 June 2022 and other emails provided to him by the Claimant and the Respondent. BS recorded that since the solicitor’s letter the Claimant had raised two additional grievances of a failure to respond properly to a subject access request and decisions relating to sick pay.

3.145 Under a heading of “Failure to adequately deal with serious breaches of data protection regarding unauthorised access of medical records (special category of data) of TC and other patients” BS recorded the Claimant’s version of events. He recorded that RB had told him that it was agreed that as complaints officer she would investigate the complaint about FS and she had initially had a telephone meeting with the Claimant and FS. RB said she also had a formal meeting with the Claimant, FS and LE with the Claimant being given minutes of the meeting and the outcome. RB told BS that the Claimant then requested a written response from FS which was then provided. RB stated she was not put under any pressure by CK or GW to stop the investigation and they did not interfere with it and that no one to her knowledge put pressure on the Claimant not to pursue the complaint. RB told BS that when the Claimant made her further complaint in January 2022, RB discussed it with the external HR advisors (Peninsula/Bright HR) and the advice was that the matter had been fully investigated in relation to the Claimant as a staff member and that the way forward was for the Claimant to complain as a patient. RB explained this was communicated to the Claimant who then made a formal complaint which RB investigated and provided a response. CK told BS that FS had acted in her capacity as a triage nurse in accessing the records and that he had told the Claimant if she did not approve of FS accessing her medical records then she should consider registering elsewhere. He told BS that the Claimant was booking appointments for herself and family and friends and bypassing the correct process which was gaining unfair access for herself and family and friends.

3.146 BS said the Respondent’s position was therefore that the complaint had been investigated and the fact of the investigation was supported by the NMC report of June 2022. BS recorded the Respondent saying it had been decided that access by FS was part of her clinical duties. He said the NMC report said was no evidence of a serious concern that would require them to take any regulatory action.

3.147 In his findings BS said that the complaint was investigated and he did not accept the claim that the complaint was not taken seriously. BS said the Respondent was satisfied that FS had a clinical reason to access the Claimant’s medical records and he accepted that they were entitled to reach that decision. He said neither the Respondent nor the NMC had found any evidence of a data breach. In relation to the latter complaint of 20 January 2022, BS said it had been managed by RB and it was further evidence that the Respondent had treated the matter seriously and undertaken investigations.

3.148 BS addressed a heading of “general lack of support from Partners regarding issues raised over the past two years.” He recorded that the Respondent told him the practice had been given additional support from the medicines management team from the health board due to its inappropriate and high antibiotic and control drug prescribing. He recorded them saying that issues had been raised in the past with the Claimant about there not being staff appraisals, no signed staff contracts, and the accountants’ opinion (from two previous accountants and the current accountant) as to the Claimant’s lack of record keeping. BS recorded the Respondent saying that at one point alcohol had been consumed on the premises (Fizzy Friday) and had been noticed on a visit by the East Area Medical Director that it was inappropriate. He recorded that CK had spoken to the Claimant about it.

3.149 BS recorded the Claimant talking about other difficulties she had faced with FS. RB told him the Claimant had undertaken an investigation with regard to separate bullying claims and had recommended a final written warning that CK had signed. BS recorded the Respondent saying that the Claimant had met with CK and said that FS was difficult to manage but gave no specific examples. The Respondent told BS that CK had said that if there were allegations about FS relating to clinical deficiency then CK would speak to FS. They said that the Claimant had raised with CK about sacking FS and CK had said that could only happen if there were justifiable reasons and there were none. BS recorded that CK had spoken to FS separately and advised FS to focus on her clinical duties and not do anything that might be taken as interfering in management issues of the practice. The Respondent said that the Claimant had felt that FS had undue influence over GW and that CK had informed GW of the Claimant’s fear.

3.150 BS recorded the Claimant’s summary of being shown the message from SR calling the Claimant inept and that RB had only shown her that message. BS recorded the Claimant saying she went to see CK and that CK had said they needed to move accountants and she felt that CK brushed off the remark about the Claimant being inept. BS recorded CK saying that when the accountant had criticised the Claimant he had asked the Claimant to find new accountants, and wanted to change accountants both due to their working methods (in putting the fees up) and in supporting the Claimant.

3.151 BS recorded that the Claimant said when she sent the email following the meeting in February 2022 that: “I think I just said that really just to try and reassure people.” BS recorded that the Respondent told him that at the meeting on 22 February the Claimant was very positive and engaged and agreed a phased return to work.

3.152 In his findings BS said that CK did support the Claimant in relation to the accountants and told the Claimant to look for new accountants. He said there was clearly a breakdown in the relationship between the Claimant and FS, but the Claimant had been able to investigate and be involved in a written warning to FS (as well as raising her own complaints about FS) and that the Respondent were affecting proper management and supporting TC in her role. BS accepted CK’s accounts that the Claimant was supported in relation to any conflict with FS. He found, looking at the Claimant’s email of 23 February 2022, that the Claimant was confirming she was working with supportive employers.

3.153 BS also looked the complaint the Claimant had allegedly been inappropriately pressured to withdraw the complaint against FS by GW. BS recorded that the Claimant had said she had been told by LE and RB that perhaps it was best to let the complaint against FS go because they had been told by GW and FS there was evidence the Claimant had wrongly coded family members on to the shielding list. He recorded the Claimant saying that GW had also come to see the Claimant to ask her not to take matters further and made a comment that patients with conditions such as atrial fibrillation, fibromyalgia and asthma were not considered to be shielding. The Claimant said she had asked GW if she should remove her family members because it was of no benefit and she had been doing her job from their medical conditions, and GW said there was no need. She said CK asked the Claimant not to rock the boat which she agreed to at that time.

3.154 BS recorded the Respondent stating the Claimant was worried about a family member not being on the shielding list and had been added by the Claimant. He said that the family member should only have been added by a clinician. He recorded RB saying TC had told RB that she probably had done wrong but was worried about her family. He recorded the Respondent saying the Claimant was confusing questions raised about adding a family member to the shielding list with access to her medical records and these were at all times two distinct issues. He recorded CK saying he had not told the Claimant she should not rock the boat and that GW denied pressuring the Claimant to drop the complaint. BS found that the Respondent did not try to stop the Claimant from pursuing her complaint. He said the investigations in 2020 and 2022 clearly showed that the Respondent was treating the matter seriously and did not support a claim that GW was pressuring the Claimant to withdraw the complaint.

3.155 BS also dealt with a complaint headed “Inappropriate comments made by Dr Williams about our client.” He recorded the Claimant talking about her discussion with CK where she alleged he had said to “let go of the hate” and that the Claimant said: “so I asked him how he would feel if his staff that he was responsible for had seen such a message and he just said pharr its too much, its too much… basically he brushed it under the carpet…”BS then wrote: “In interviews with [the Respondent], I have been told:

• [GW] did send the private messages between herself and her now ex-partner in 2019. At that time, she was not a partner in the practice, and neither was she TC’s employer. [GW] says these were “rants” after a hard day at work when she was stressed and made privately to her then partner. The relationship with the partner was one in which he was abusive and coercive, and this contributed to [GW]’s stress and interaction with her workplace. The ex-partner is now being prosecuted by the CPS for harassment and coercive behaviour towards [GW].

• [GW] says the messages reflected her state of mind at that time and not her beliefs when she later became a partner in [the Respondent]. The messages do not reflect her opinion [the Claimant].

• [GW] accepts that [the Claimant] would be very upset about the contents of the messages and apologised to [the Claimant]. [GW] understood that [the Claimant] accepted the apology and accepted that at the time the messages were sent [GW] was in the controlling and coercive relationship.

• [GW] did send screenshots of patient records to her then partner. She was upset that the patient’s mother had called her a pervert. The screenshot does not have patient identifiable data on it. [GW] regrets doing this and has taken guidance from her MDU who have advised her that she does not need to report this to the GMC. That this screenshot is not something that [the Claimant] should be aggrieved about as it does not relate to her.

• [CK] says he did not tell [the Claimant] to “let go of the hate” and then suggest [the Claimant] takes time of work. [The Claimant] was advised to take time off whenever she was stressed e.g. due to a family member’s ill health or relationship problems. This was proper care of an employee and patient.

• The communications do not confirm that the first investigation into FS accessing [the Claimant’s] medical records was incorrect or that evidence was concealed from [the Claimant]. There was a full investigation in 2020 and again in 2022 and the NMC agrees with this and accepted the explanation in the investigation.

• The prescribing of Diazepam was not linked to this incident. [The Claimant] would request this drug from time to time. It was not unusual for [the Claimant] to request such prescriptions. CK cannot disclose why [the Claimant] was prescribed this drug due to confidentiality…”

3.156 BS’s findings included that GW was not at the time of the messages a partner in the Respondent or the Claimant’s employer and that the messages only show GW’s state of mind at the time they were sent. He said subsequent events, including the criminal prosecution, demonstrated there were external issues affecting GW and the messages do not demonstrate her views and opinions in December 2021. He said there was no evidence that after GW became a partner she was trying to have the Claimant out of the surgery or did not respect the Claimant. He found that GW apologised to the Claimant and the Claimant had continued to work and remain as the practice manager. BS found that CK denied failing to support the Claimant or deflecting the situation by advising the Claimant to take time off. BS found that the Respondent wanted to work with the Claimant and were not trying to exit her. He said: “I find that [the Claimant] had by either 22.2.2022 or 23.2.2022 decided that she wanted to work with and for both [CK] and [GW] and would be taking part in a phased return to work with the “support of the partners… Whilst I accept that [the Claimant] would have been very upset when she was shown the messages, she had by 23.2.2022 decided to accept she had the support of the partners and was telling all staff that the surgery would move forward together.”

3.157 BS also addressed a complaint of harassment on the grounds of age relating to the Claimant being described as an “old knacker.” BS made the same findings that GW was not at the time a partner or the Claimant’s employer and only showed GW’s state of mind at the time the message was sent, and that GW had apologised to the Claimant and believed that the apology had been accepted. He said again that the Claimant attended the meeting of 22 February 2022 and sent the email thereafter demonstrating she was happy and confident in continuing in her role and did not at that time have concerns about harassment.

3.158 BS dealt with a complaint of “commencement of an unnecessary and unwarranted disciplinary process.” He wrote: “In discussions with [the Respondent] I am told:

• The Partners could not reconcile the transfers to CTC Ltd with any agreement relating to Covid vaccinations. The transfers relate to the receipt of NHS payments and the Partners were concerned that any review of the surgery accounts could result in an adverse finding;

• Although a tentative agreement had been discussed with TC about paying CTC for the actual cost of payments made to vaccinators and then once all accounts had been finalised to pay to CTC a share of the profit, there was no final agreement.

• The transfers to CTC represented the total sums received by the surgery for Covid vaccinations. Even if there had been a finalised agreement CTC would not be paid a sum equal to all Covid payments made by the NHS to the surgery.

• The Partners were of the opinion that the transfers constituted a very serious financial breach and it was essential to return the sums to the surgery and then effect proper and compliant accounting procedures.

• It was for this reason that the Partners sent a letter to [the Claimant] dated 14.4.2022…

• As at 26.4.2022 [the Respondent] were in the position of being aware of transfers of all Covid payments to CTC Ltd but not having any explanation as to: o How many vaccinations CTC had undertaken; o The payments made to vaccinators; o Why [the Claimant] had transferred all Covid payments received by the surgery.

• [The Respondent] believed that [the Claimant] did not wish to answer the questions or provide information and that there was the possibility of noncompliance with correct according procedures. [The Respondent] were of the opinion that [the Claimant] left them with no alternative but to commence an investigation to enable them to determine the full circumstances of the transfers. A letter was sent to [the Claimant] dated 27.4.2022 asking her to attend a meeting with regards to the investigation. This letter was not the start of a disciplinary procedure.

• [The Claimant] responded by email dated 5.5.2022 saying she would not attend an investigation meeting but if the questions were sent to her, she would answer these. [The Respondent] sent the questions to [the Claimant] on 6.5.2022.

• On 9.5.2022 [the Claimant] sent an email saying she would answer the questions by the end of the week.

• The next communication was from solicitors appointed by [the Claimant] dated 13.5.2022 which set out a claimed agreement between CTC and [the Respondent] but did not answer all the questions raised by [the Respondent].

• [the Respondent] did not agree there was a concluded agreement with [the Claimant] or CTC Ltd. [The Respondent] state that the transfers made by [the Claimant] were without authority and subject to investigation may be unlawful.

• [The Respondent] believe they still do not have answers to their questions on the number of vaccinations undertaken by CTC Ltd and on what dates. Nor have copies of all invoices from CTC Ltd to [the Respondent] for the sums which were paid, been provided. [The Respondent] do not understand why either [the Claimant] or her solicitors have failed to answer the questions or provide copies of documents requested.

• Even if [the Claimant]’s claim that there was an agreement for 50% of the profits to be paid to CTC Ltd is accepted the transfer of all sums received for Covid payments would mean the transfers were unlawful.

• [The Respondent] have advised that CTC Ltd was dissolved on the 13th September 2022.”

3.159 BS said that it was not part of his investigation to determine whether there was a concluded agreement between the Respondent and CTC Ltd. He said the Respondent started an investigation to discover why all payments had been transferred to CTC Ltd and did not commence a disciplinary procedure. BS found that it was important the surgery was able to have properly detailed and compliant accounts and requesting the return of the monies and then the establishment of full accounts would enable this. He found that thereafter the request to the Claimant to answer questions, and on her failure to do so to commence an investigation, was understandable taking into account that all payments had been transferred to CTC Ltd for which there did not appear to be a credible explanation. BS said it was difficult to understand why the Claimant had not answered all the questions or provided all the documents and at this date in time the approach by the Respondent appears to be justified and was not a pre-emptive approach to have the Claimant dismissed or leave the surgery. He found the approach was reasonable and could have been brought to a conclusion more quickly by the Claimant and CTC Limited providing the information requested.

3.160 BS dealt with a complaint relating to a subject access request and said that the Respondent had carried out reasonable searches. He also considered the grievance relating to sick pay saying the Claimant’s case was that she should have been paid for 12 months as was done for other employees. He said the Respondent had said that there was no contractual right for full pay, and full pay had been paid for 6 months. The Respondent told him that each individual employee is considered on their own circumstances and they could not afford to continue to meet the cost of full pay to the Claimant. They considered that full pay for 6 months was exceptional and in reviewing the payment had decided that full pay should cease. BS said the partners were entitled to exercise their discretion and the Claimant did not have a valid grievance about that.

3.161 On 17 November 2022 SM sent the Claimant a letter headed “Grievance decision.” It said: “After taking into account the findings of the investigation, the information provided by you, and our discussions at the grievance meetings, we have decided not to uphold your grievance. This is because of the findings in the external independent grievance investigation undertaken by Bernard Seymour. In light of this decision we will take the following actions: We will continue with the investigations into the payments made to CTC Ltd.” The Claimant was offered the right of appeal by 25 November 2022. CK lead the decision not to uphold the grievance, bearing in mind GW was part of the subject of the grievance. Grievance appeal

3.162 The Claimant submitted a detailed appeal on 23 November 2022 in a letter and accompanying table [263 and 256 – 262]. Her appeal grounds included (amongst others): that the two versions of FS’s original account showed that FS had been dishonest about the accessing of notes; that GW had been a partner in March 2021 when GW sent the messages relating to the accountant’s bill; that CK was aware of the payments to CTC Ltd; that relationship issues did not cause GW to write the messages because GW was happy in the relationship at the time and had asked for TC to be listed on payroll as her administrator backup. The Claimant said she was disappointed and confused by the outcome because, where there was a difference in the evidence between what she said and a denial from the Respondent, BS had simply preferred the denial but did not explain why the Claimant’s evidence was not accepted. She pointed out that the outcome letter simply said the grievance was not upheld without going through each of the individual points or to confirm why each point was not upheld based on the evidence. She appealed on the basis that where there were clear findings of fact, such as the inappropriate messages (which were admitted), those parts of the grievance still were not upheld. The Claimant said the conclusion that she was happy and confident in continuing in her role meant that the comments were okay, was not an acceptable finding to make.

3.163 The Claimant was told to send her grievance appeal to Tony Marriott (TM) who is a practice manager in a neighbouring surgery. The Claimant sent a copy of all her documents to him. On 1 December 2022 the Claimant emailed TM asking him about timescales saying that her mental health was being exacerbated by having this hanging over her. TM sent the Claimant an email on Friday 2 December 2022 which said: “I am sorry that my reply to your grievance appeal as not been forthcoming with alacrity but unfortunately your submission on 23rd November 2022 caught be as I departed for leave. Please accept that I had no prior knowledge of your situation until I was approached by Gardden Road seeking my assistance. I have reviewed the information that you have provided me concerning your grievance and as of yesterday afternoon I am also now in receipt of information provided by Gardden Road. Please be assured that his matter has been kept very confidential within my office and I have only notified my Partners of a request from a Cluster practice to assist in an HR matter. I find this a significant case because of the multi-layered and disparate elements of the grievance. I have therefore not wished to proceed until I have confidence in my understanding and benefited from my own HR legal advice. On that note, as this involves someone outside of Dee Valley Medical Practice, our own legal retainer does not cover this. I have been advised that it would be possible for me to personally instruct our solicitor to advise me in connection with conducting the grievance appeal and I have today asked if Gardden Road will be willing to fund this? I also need to understand what authority has been clearly granted to me by the Gardden Road Partners to conduct and determine the outcome of the grievance appeal? The Gardden Road Grievance Policy is silent on who should hear a grievance. Please understand that although I am willing to support you and Gardden Road with your appeal I am waiting further clarification from Gardden Road, though Sushila Manilal concerning the above, before proceeding further? Trusting that you are accepting of my wish to clarify my legal position and agreement from Gardden Road to reimburse any specialist advice that I may seek before I engage further.”

3.164 The Claimant emailed SM and CK referring to the email from TM saying she had two key concerns. The first was further delay in dealing with the appeal and the associated damage it was doing to the Claimant’s mental health. The second was: “That I have sent my confidential appeal to someone who still may not hear my appeal. I would have assumed that this had been agreed formally before his name was provided to me. Further, I have sent personal information to someone who works in a similar role to me at a local practice who now has information about me that could directly impact my reputation in the area and impact on any future role that I may apply for locally. He has informed the partners that he will be listening to the appeal too.” The Claimant asked that if there were any steps to speed up the process and give TM the authority and resources he needed so that there were no further delays [438]. The Claimant said that knowing that she did not feel fit to return to her role with it all outstanding it was not reasonable to prolong the process.

3.165 On 7 December 2022 the Claimant emailed SM, CK and GW saying she had hoped she would receive an update by close of Monday. It was now Wednesday. She asked for an acknowledgment of her email and an update on next steps by the end of that day. She said the situation was extremely stressful and causing further damage to her mental health. SM replied to say that they had instructed Peninsula to hear the appeal and asking the Claimant to forward on the so it could be passed to Peninsula.

3.166 The Claimant says the situation caused her severe anxiety and panic that she had revealed everything to TM, and that he promised it was safe but had informed the partners at his practice whom the Claimant knew. She alleges that the Respondent did not check with TM if he was qualified and able to do the grievance appeal. She says this was the final straw and she resigned on 12 December 2022. SM said TM had been instructed for the appeal because concerns had been expressed about Peninsula in other cases. She said that she knew TM had employment/HR experience and she checked that with him and whether he had experience dealing with grievances and he said that he did. We accept SM’s evidence as to her rationale and enquiries she made.

3.167 The Claimant’s resignation letter said that due to her treatment over the last few years as detailed in her grievance, and the handling of the grievance and appeal, she felt she had no option but to resign as she felt trust and confidence had been severely breached and was beyond repair.

3.168 In her resignation letter the Claimant referred to her disappointment with the grievance, and in particular with BS simply preferring the Respondent’s case to hers without explaining why her evidence was not accepted. She referred to the outcome letter not going through each point in the grievance and why each point was not upheld. She said it was clear the process was always going to find in the Surgery’s favour. She referred to the fact that even where there were findings of fact in her favour such as the comments made about her, those parts of the grievance still were not upheld and she did not understand that. She said her mental health had been severely affected which had not been taken into account. The Claimant also referred to the delay in progressing her grievance despite her being unable to work and with sick pay having ceased. She said other employees had been paid a longer period of sick pay in the past, and also she had previously been told she would go on to half pay in August 2022. The Claimant said she felt the delay and sick pay decisions were an attempt to force her to leave so that the issues could be swept under the carpet. She said she was shocked to find out the appeal would not be heard by TM and this decision had been taken after she had already unnecessarily sent confidential information to his surgery which was based on the area she works in and part of a small community. She said she should not have been asked to send her appeal and confidential information when the details had not been finalised. The Claimant said her mental health had been severely impacted by her treatment at the surgery and during the grievance process and that the handling of the grievance appeal, further delays and the sending of confidential information to a local surgery unnecessarily was the final straw for her.

3.169 The Respondent offered to continue with the grievance appeal by emails on 14 and 15 December 2022 but following a lack of response from the Claimant SM wrote to the Claimant on 20 December 2022 saying they concluded that the Claimant did not wish to proceed with it. The Claimant replied to say that she had lost all trust and confidence in the Respondent and the appeal process and that (in her view) the speed to assume she did not wish to proceed with the appeal was further proof of that. The Claimant said she did not want to proceed with the appeal.

3.170 There is a further invoice from CTC Ltd to the Respondent dated 3 January 2023 in the sum of £12846.39 [157]. There is also a document at [144] of the same date that says it sets out a breakdown of income for locum vaccinators. It asserts that income received was £32792.50, that £19464.11 had been paid to CTC Ltd with £12846.39 outstanding. The basis of the income received figure is not particularly clear because it says: “Income received including NET (deducted by Crane Medical Centre) and 50% to Gardden Road Surgery.” The Claimant alleges that money is still owed to CTC Ltd which she has not pursued as she dissolved the company as it was affecting her mental health and it would require reinstatement of the company to the register.

3.171 In January 2023 the Claimant was paid holiday pay on termination for the current holiday year only (not for the 14 days from the year before that the Claimant had been trying to access in correspondence with SM). On 18 January 2023 the Claimant wrote to the Respondent again seeking this [268]. On 24 January 2023 the Claimant wrote again to SM saying she had consulted with ACAS and the CAB and SM’s interpretation of the legislation was in question. The Claimant said the regulations changed during the Covid Restrictions and it was now allowable for the payments to be made. On 26 January 2023 SM wrote to the Claimant asking her to set out the legislation she was referring to. The Claimant replied referring to section 14 of the Working Time Regulations. SM replied to again state that payment only applied for the current holiday year.

3.172 Acas early conciliation took place between 12 December 2022 and 22 January 2023. The ET1 Claim Form was presented on 26 January 2023.

3.173 At some point the Respondent referred the CTC allegation to the police, who in turn said it was a matter for NHS Fraud. The Claimant says she contacted the NHS Fraud department herself to ask them to look into it and says they told her fraud was not possible as vaccinations are recorded on patient records.

[4]Discussion and Conclusions List of Issues paragraph 9.2.2: In June 2020 the Claimant was instructed to say staff had been furloughed when they had not been. GW informed FS no staff were furloughed who then told the staff which undermined the Claimant and made managing the staff difficult4.1 Applying our findings of fact and the law to the issues we have to decide in the case our conclusions are as follows. We start with paragraph 9.2.2 in the List of Issues because in terms of the chronology it is the first complaint for us to determine. This complaint is only brought as a victimisation and a protected disclosure detriment complaint. The Respondent accepted in closing submissions the Claimant did the protected acts set out at paragraph 9.1 in the List of Issues which relate to acts in August 2020 (9.1.1 in the List of Issues is incorrectly dated June 2020) and December 2021/January 2022. The Respondent accepted in closing submissions the Claimant made a protected disclosure as set out in paragraph 11.1 of the List of Issues which is again dated December 2021/January 2022.

4.2 On the Claimant’s own account this incident related to furlough happened early on in the Covid pandemic with the introduction of furlough. It happened before the all of the protected acts or the protected disclosure. The protected acts and protected disclosure therefore cannot have been causative of GW’s actions because the protected acts and protected disclosure had not yet happened. The complaints of protected disclosure detriment and victimisation relating to this allegation are not well founded and List of Issues paragraph 6.1: June 2020

6.1.1 FS accessed the Claimant’s patient records and stated at a staff meeting that certain staff (whilst not naming the Claimant it is alleged to have been obvious she was referencing the Claimant) were jumping the queue choosing the weaker doctor to obtain medication;

6.1.2 FS later denied accessing the notes and was verbally aggressive to the Claimant and refused to treat the Claimant or her family. No action was taken against FS for this conduct;

6.1.3 In a retaliatory manner GW informed the Claimant that FS was “wound up” the Claimant had entered three family members onto the shielding list and she should avoid continuing to complain that FS had accessed her notes.

4.3 These allegations are said to be direct disability discrimination i.e. less favourable treatment because of disability. They are also said to be harassment related to disability and discrimination arising from disability. 6.1.2 and 6.1.3 are also said to be acts of victimisation. They are also all relied upon as conduct allegedly breaching the implied term of trust and confidence in respect of the constructive dismissal complaint. Accessing medical records

4.4 FS did access the Claimant’s medical records. We did not hear evidence from FS. But we must make findings as to why FS acted as she did.

4.5 In our judgement it is likely that FS did hold various clinical concerns including: she personally felt it was a conflict of interest for staff to also be patients; that the system could be open to abuse with staff able to arrange their own appointments with clinicians; she felt the Claimant (and others) were engaging (to use FS’s language) in drug seeking behaviour with clinicians; and that some clinicians may then be inappropriately prescribing. FS thought the events on 10 June 2020 were a classic example of that because she thought that the Claimant may have targeted RW for an appointment, had secured medication and FS believed that RW may have done so not understanding the full picture. That FS may have held such clinical concerns is, however, not the full picture as to what was going on amongst staff in the workplace at the time.

4.6 We would accept in principle that if FS genuinely held clinical concerns FS may have genuine cause to look at records and to have a discussion with colleagues. Such discussions if undertaken properly would, however, need to be done with caution and mindfulness as to confidentiality given they would in the Claimant’s case be talking about a patient who was a colleague and indeed the practice manager.

4.7 But there is a difference between a genuine, confidential clinical conversation and engaging in gossip. We have also found that FS and others did engage in gossip about the Claimant (and others) within the workplace and via social media.

4.8 Within that context and looking first at the harassment complaint, accessing the Claimant’s medical records was, from the Claimant’s perspective unwanted conduct. It was conduct related to disability. As well as accessing the Claimant’s records several times on 10 June 2020, FS had also accessed them on other occasions over a fairly lengthy period. Particularly not having heard from FS, we cannot find that FS accessed the Claimant’s records on all the occasions simply in furtherance of clinical concerns as opposed to having overstepped any clinical responsibilities and having accessed the Claimant’s records to observe and fuel gossip. But either way it was conduct that was related to disability. The Claimant’s medical condition and her prescriptions that were being accessed in the medical records were related to the Claimant’s accepted disability.

4.9 We do not find that accessing the medical records was conduct that had the purpose of creating a harassing environment for the Claimant because we cannot find that FS intended the Claimant to know that she had been accessing her records. However, we do find that, once the Claimant knew about it, it had the effect of creating a hostile, humiliating and offensive environment for the Claimant. These were the Claimant’s personal, private, medical records being accessed by a colleague on multiple occasions. In the circumstances we find it was reasonable for the Claimant to feel that way. We would accept that if FS were accessing the Claimant’s records for an entirely legitimate clinical purpose, then it may not be objectively reasonable for the conduct to be considered to have a harassing effect. Medical practitioners need to be able to conduct their clinical duties, such as assessing triage processes or undertaking prescription assessments, without it being considered harassing conduct even if the recipient is unhappy about it. But we have been unable to conclude on the evidence before us that is the case. We do not find that the Respondent has established on the balance of probabilities through sufficiently cogent evidence that FS’s accessing of the records was not in a material part at least in furtherance of fuelling the unnecessary, unkind gossip about the Claimant.

4.10 In terms of the constructive dismissal complaint, on the balance of probabilities again we are not satisfied that the access to the Claimant’s medical records was simply due to clinical duties in assessing triage arrangements and prescribing practices. Once the Claimant was aware of the conduct we therefore find it was conduct that undermined trust and confidence and was, at least to a material extent, conduct without reasonable and proper cause.

4.11 For completeness we would add (and we specifically checked with Mr Fakunle in closing submissions) that the Respondent did not submit that the Respondent was not liable for FS’s (or indeed GW’s) conduct whether as part of a discrimination complaint or the Respondent’s conduct as employer for the constructive unfair dismissal complaint.

4.12 We therefore find that the accessing of the Claimant’s medical records by FS was conduct likely to undermine trust and confidence and was without reasonable and proper cause (relevant to the constructive unfair dismissal complaint). Subject to the question of time limits, discussed below, we would find it was also harassment related to disability. As it was harassment, under section 212 it cannot also be direct disability discrimination detriment and that complaint of direct disability discrimination is therefore dismissed. We also find that the accessing of the Claimant’s medical records by FS was because of the things said to arise in consequence of disability (the Claimant requiring additional support, the Claimant having issues with alcohol misuse, the Claimant being less likely to meet performance standards) in the sense of being materially influenced by them. This is because part of the reason for the gossip about the Claimant that we have found was a material influence on the accessing of the records was due to these things, which in turn arose in consequence of the Claimant’s disability. There was no application to amend to run a justification defence in respect of this complaint. Subject to time limits the complaint of discrimination arising from disability is therefore well founded. FS’s comment at the staff meeting in August 2020

4.13 In relation to what FS said at the staff meeting in August 2020 (that certain staff were jumping the queue and choosing weaker doctors for medication), FS did not name the Claimant but FS’ draft email shows it was about the Claimant. In our judgement, those who were involved in the gossip (or indeed an earlier clinical discussion about it) would put two and two together and know who it was referring to. The Claimant suspected it was referring to her, and was proved correct.

4.14 In terms of the harassment complaint, what FS said was unwanted conduct; it was conduct that indirectly suggested the Claimant was manipulating the system to gain appointments and medication, and was said in front of all staff at an all staff meeting. It was conduct that related to the Claimant’s disability. FS’s comment, as her draft email shows, related to FS’s views on the appropriateness of the Claimant having an appointment with RW and the prescription given. This related to the Claimant’s disability.

4.15 It was conduct that happened at an entire staff meeting. It can be seen from FS’s draft email that her attitude towards the Claimant was entirely unsympathetic and was scathing about the Claimant as an individual who was managing a long term health condition. There is sufficient evidence to shift the burden of proof to the Respondent to demonstrate that this was conduct that did not have the purpose of creating a harassing environment for the Claimant. As we did not hear evidence from FS we do not find we have sufficient evidence to demonstrate that creating a humiliating environment for the Claimant was not a material part of the purpose; as opposed to being purely about raising a clinical concern. In particular, we have no evidence from FS as to why she would consider it appropriate to raise such a concern (even if not directly naming the Claimant) at an all staff meeting.

4.16 In any event we would find that it had the effect of creating an intimidating, degrading, humiliating and offensive environment for the Claimant in circumstances in which the Claimant correctly perceived it related to her. It was reasonable for the Claimant to perceive it to have such a harassing effect; it related to the Claimant and private medical matters undertaken in front of everyone at an all staff meeting. Subject to the question of time limits (dealt with below) it was harassment related to disability.

4.17 It was also conduct in our judgement that for the same reasons undermined trust and confidence and was without reasonable and proper cause and is relevant to the constructive unfair dismissal complaint.

4.18 As we have found the complaint to be harassment related to disability, the same conduct cannot also be direct discrimination detriment and therefore the direct discrimination detriment complaint is dismissed. Subject to time limit we would also find the comment to be discrimination arising in consequence of disability it again being materially influenced by the gossip and conjecture circulating about the Claimant that in turn was materially influenced by the things arising in consequence of disability such as the Claimant needing additional support in the workplace and not being seem to meet performance expectations. Again no justification defence was pleaded. FS denying accessing the notes and allegedly being verbally aggressive to the Claimant and refusing to treat the Claimant or her family

4.19 FS did not deny accessing the notes. What FS said initially that she could not remember why she had undertaken the access and floated a range of potential reasons – i.e. she denied remembering the specific reason for each access/ denied accessing the records for an inappropriate reason. We have not found that FS was verbally aggressive to the Claimant when challenged but we have found that FS was likely to be irate. FS also made a comment about not treating the Claimant and the Claimant’s family in the future.

4.20 FS’s conduct in denying remembering exactly why she had accessed the records (at least in relation to 10 June) was untrue; as the draft email that subsequently came to light shows. Once that was known to the Claimant it was conduct that undermined trust and confidence without reasonable and proper cause. We find the same about FS reacting in an irate manner and saying she would not treat the Claimant and the Claimant’s family; that was the arrangement that CK as senior partner told FS was the system that was in place in the surgery.

4.21 In terms of the Equality Act complaints; this was FS’s defensive reaction to being challenged. We do not find that it was because of or related to the Claimant’s disability. It was also not because of the listed things said to arise in consequence of disability. The direct disability discrimination, harassment related to disability and discrimination arising from disability complaints in this regard are therefore not well founded and are

4.22 In relation to the victimisation complaint, the question is whether FS denied accessing the notes and was irate because the Claimant had done the accepted protected act, i.e. that the Claimant had made a complaint of discrimination. We do not find that this was the case; FS was seeking to defend herself but we do not consider (or indeed find there is a prima facie case) that this defensiveness was because there was a complaint of disability discrimination or that she would have acted differently to any other kind of complaint. The victimisation complaint is not well founded and is dismissed. “No action was taken against FS for this conduct”

4.23 As set out in the findings of fact, RB dealt with the Claimant’s initial 2020 complaint. There were a series of meetings and FS was asked to give a written response which she did. There was investigative action and a response by the Respondent in 2020. The Claimant at the time decided not to pursue it any further (as she acknowledged in her subsequent complaint in December 2021 [161]) but that does not factually mean that no action was taken in respect of FS.

4.24 The complaint then came back to life again in 2022 once the Claimant had receipt of the initial draft response that FS had sent to GW which was very different to the 2020 response the Claimant actually received. The Claimant contacted Bright HR for advice about FS who said they would be in touch with CK [161]. In fact RB dealt with Bright HR who advised that as the matter had previously been fully investigated in relation to the Claimant as a staff member the way forward was for the Claimant to complain as a patient. This was communicated to the Claimant who duly made a patient complaint. RB then provided a response to the complaint on 3 February 2022 found at [127]. The Claimant was invited to discuss it further with RB or if she remained dissatisfied to raise a complaint with the Public Services Ombudsman for Wales.

4.25 CK also had the conversation with the Claimant where he said that as a clinician FS had authority to access any patient’s medical records and FS had acted in her capacity as a triage nurse. CK told the Claimant that if she did not approve of FS accessing her medical records then the Claimant should consider registering elsewhere and this applied to other staff members at the practice.

4.26 At some point the Claimant also made her complaint to the NMC which concluded there was no evidence of a serious concern that would require them to take regulatory action. We do not know if the NMC expressly looked at the allegation that FS had been untruthful in her initial 2020 response in saying she could not remember the specific reasons for each access because we do not have the NMC paperwork.

4.27 The complaint about FS was also a feature of the Claimant’s subsequent formal grievance. In his grievance report BS also did not directly address the allegation that FS had been untruthful in her original 2020 response.

4.28 We do not find it established that the Respondent took no action about the Claimant’s complaint about FS accessing her notes. A process was followed about FS’s actions in 2020 and again in 2022, and it was looked at again by BS in the grievance investigation. It was also, as we understand it, the subject of the NMC complaint (albeit we appreciate that was commenced by the Claimant). The Respondent’s viewpoint was that there had been legitimate access by FS for clinical reasons. The Claimant does not agree with that conclusion and we have also reached our own conclusions in that regard. But it does not mean that there was no action by the Respondent. There is just a difference on the conclusion the Claimant says should have been reached.

4.29 However, we do find that from the end of 2021 onwards the Claimant was also complaining that FS had been untruthful in her original 2020 response, as demonstrated by the draft response the Claimant received via TC. That complaint about alleged untruthfulness was not, in our judgement, ever looked at by the Respondent and we consider did amount to a failure to take action.

4.30 The failure to take action in that specific regard was without reasonable and proper cause and was likely to undermine trust and confidence. It was an issue of significant concern to the Claimant.

4.31 In terms of the disability discrimination complaints, we do not find that this failure was because of or related to disability. We find that RB and CK simply failed to see there was a separate issue of substance being raised here of alleged untruthfulness that was in a sense separate to the complaint about accessing of records. It was likewise not picked up on by Bright HR or BS. It was also not because of any of the listed things said to arise in consequence of disability. The failure to take action in respect of this particular arm of the complaint, was not disability discrimination and those complaints are not well

4.32 The Claimant also brings a victimisation complaint. The Respondent accepts that the Claimant did two protected acts in complaining in August 2020 to CK about FS and in December 2021/January 2022 about the email content received from TC. We do not find that the failure to take action in respect of the particular arm of the complaint that FS had initially given an untruthful complaint response in 2020 was done because the Claimant made a protected act complaint about disability discrimination. We find it was simply because there was a failure to appreciate it was a separate strand of complaint. CK was not proactively involved in dealing with the complaint not because there was a discrimination complaint about FS, but because administrative matters were not his forte. In general CK’s habit was to leave management and administrative matters to operate without his active intervention. It was therefore largely left to RB, when again it was not her field of expertise. RB simply followed the advice of Bright HR (even if that advice may have been lacking). The complaint of victimisation is not well founded and is dismissed. The same applies to the protected disclosure detriment complaint. We do not find that CK failed to take action against FS’s apparent untruthfulness being exposed because the Claimant made a complaint about breach of patient confidentiality against GW. As already stated above, it happened because there was a failure on the part of those involved to notice and separate out the specific complaint. Allegation that GW informed the Claimant that FS was “wound up” the Claimant had entered 3 family members onto the shielding list and that the Claimant should avoid continuing to complain that FS had accessed her notes

4.33 We have not found it established as a matter of fact GW told the Claimant that if she continued with her complaint against FS then the Claimant putting family members on the shielding list would be taken further. The complaint is not made out as a matter of fact and therefore does not amount to relevant conduct for the constructive unfair dismissal complaint and it is also not direct disability discrimination, harassment related to disability, discrimination arising from disability or victimisation and those complaints List of Issues – January 2021 – Paragraph

6.1.4 Dr Williams shared a message with RB in which the practice accountant referred to the Claimant as “inept” and if she employed her she would sack her

4.34 This is pursued as an allegation of direct age discrimination and direct disability discrimination and harassment related to disability and/or age. It is also brought as a discrimination arising from disability complaint and forms part of the constructive unfair dismissal complaint. It actually happened in March 2021 not January 2021.

4.35 We find that GW did not consider the Claimant to be good at her job, Underlying that view was an age discriminatory view in that GW considered the Claimant “past it” (hence GW also having previously referred to the Claimant as, for example, an old knacker). GW, in forwarding on the email from SR to RB, was GW engaging in unkind gossip about the Claimant’s competence but was also GW expressing her view that the Claimant was “past it”. It was an embodiment of GW’s underpinning age discriminatory views. GW’s actions in sending the message to RB was conduct that was unwanted from the Claimant’s perspective and it was related to age. It was not done for a legitimate reason and therefore had the purpose of violating the Claimant’s dignity or creating a degrading, or humiliating environment for her. The Claimant was in effect being ridiculed to a colleague within the Claimant’s own line management. In any event it also had such a harassing effect and it was reasonable for the conduct to have that effect. Subject to the question of time limits, the Claimant’s complaint of harassment related to age succeeds in relation to this complaint. Because the harassment complaint succeeds, the equivalent direct age discrimination detriment complaint cannot, and so that latter complaint is not well founded and is dismissed.

4.36 GW knew the Claimant’s family circumstances and the psychological pressures that the Claimant was under. GW knew about the Claimant’s history of mental ill health. GW knew that medication was part of this history of ill health. GW had the Claimant’s heart felt plea for help found at [175] which is undated but must have occurred at some point in the period 2019 to 2021. Yet GW showed no empathy or sympathy at the time. GW had the capacity and knowledge to see and yet rejected the notion the Claimant’s requests for medication, or the Claimant’s absences from the workplace, or any performance concerns as being linked to or caused or contributed to by the Claimant’s disabling medical condition. GW had all the information available to her to see it as such; and yet did not do so. Instead GW (and others) fixated on the Claimant and the Claimant’s family and those associated with them. They were looked down upon, and the Claimant was labelled as a drug seeker, and living a “Clarkashian” lifestyle, as being incompetent and too old for her job. The Claimant and her family and others associated with them became a source of entertainment and gossip.

4.37 In our judgement, forwarding the email to RB was also harassment related to disability (again subject to the question of time limits) as well as being harassment related to age. It was unwanted conduct. It was conduct related to disability. GW knew the information to show the Claimant had a disability and had the capacity to know it could be affecting the Claimant’s performance. Indeed GW said as much in oral evidence before us whilst at the same time seeking to minimise how small any performance issues were said to be and to say it was not the Claimant’s fault. At the actual time GW, whether consciously or subconsciously decided to reject the link and instead engage in the kind of gossip referred to. At the time of the events GW did not express her issues with the Claimant as being minor or not the Claimant’s fault; but the link to disability was always there. We have already found the conduct had the relevant harassing purpose and effect. Because the harassment complaint succeeds (subject to time limit considerations) the conduct cannot also be direct disability discrimination and therefore the direct disability discrimination claim is dismissed.

4.38 Forwarding the email to RB was also unfavourable treatment because of something arising in consequence of disability. Applying section 7.2.1 of the List of Issues) it was because (in the sense of being materially influenced by) of GW’s dissatisfaction with the Claimant’s situation in work. In particular, dissatisfaction with the Claimant requiring additional support in the workplace in terms of time off and working from home, and allowances for her situation and performance. It was also similarly because the Claimant was less likely to meet performance standards. In a nutshell, the Claimant was not always present and not always doing her full job in the way the Respondent in an ideal world may have wished. Those limitations arose in consequence of the Claimant’s disability. This is not a matter on which the Respondent sought to run an objective justification defence in their closing arguments. Subject to the question of time limits the complaint succeeds.

4.39 In terms of the constructive unfair dismissal claim this was conduct by GW that was likely to undermine trust and confidence and done without a legitimate purpose (and indeed had a discriminatory purpose). It therefore was done without reasonable and proper cause. List of Issues Paragraph 6.1.6: On 22 December 2021 TC sent an email to the practice containing graphic hate material about the Claimant and her family, namely: List of Issues 6.1.7: A draft email from FS to GW admitting FS had accessed the Claimant’s notes and referring to the Claimant as a “drug seeker.”

4.40 Paragraph

6.1.5 in the List of Issues is an introductory paragraph rather than being an allegation in its own right. The substantive complaint is about the underlying conduct of FS and GW that came to light when TC forwarded it to the practice, rather than the actions of TC himself (which is conduct of an outside third party). The first actual complaint is therefore at 6.1.7 in the List of Issues which is the coming to light of FS’s draft email about accessing the Claimant’s medical records where FS referred to the Claimant as a drug seeker. We have already dealt with FS’s conduct in that regard when dealing with paragraph 6.1.1 and 6.1.2 of the List of Issues above. FS’s draft email was written in unsympathetic terms and her terming the Claimant a “drug seeker” came from the same place as FS’s comments at the staff meeting where she said the Claimant (not by name) had been choosing weaker doctors to obtain medication. For the same reasoning we there find FS’ conduct in terming the Claimant a “drug seeker” was harassment related to disability (subject to time limit considerations). Once the Claimant found out about it, it was unwanted conduct that related to the Claimant’s disability. It had the effect of violating the Claimant’s dignity and creating a degrading and humiliating environment for the Claimant. It was reasonable for the Claimant to consider it to have that effect in circumstances when we have found that, whatever clinical concerns FS had, FS was likely to have been looking at the Claimant’s records and engaging in unkind gossip about the Claimant for non-clinical reasons. If it is harassment it cannot be direct discrimination detriment. For reasons already given in relation to the other FS allegations discussed above, it would however also be, subject to time limits, unfavourable treatment because something arising in consequence of disability. It would not, however, amount to victimisation which is not well founded and is dismissed. List of Issues paragraph 6.1.7: Messages from GW that referred to the Claimant as “cunt”, “narcissistic shit house, “an old knacker” that needs to be dislodged, but “like a tumour that was deep rooted and difficult to remove”

4.41 GW wrote to TC, on a date after 28 October 2020, about the Claimant: “Now trying to dislodge the old knacker but like any decent tumour she has a long root!” Subject to the question of time limits, we find that was harassment related to age. It was unwanted conduct. It related to age as it described the Claimant as an old knacker i.e. a reference to an old horse that needed to be put down (in the Claimant should no longer work there). GW never intended the Claimant to see the message so it did not have a harassing purpose. But once the Claimant did see it, it had the effect of violating the Claimant’s dignity and creating a hostile, degrading, humiliating and offensive environment for her and it was reasonable for the conduct to have that effect. GW said in evidence that the comment was not derogatory or meant to be as she referred to her own mother as “old dear” in an affectionate way. We wholly reject that argument, it is a different term and a different phrase said in a wholly different context.

4.42 Again subject to time limit considerations, we also find that calling the Claimant an old knacker to be dislodged was harassment related to disability. The message was, in effect saying that the Claimant was not up to her job. For reasons given already in relation to the forwarding of the email by SR describing the Claimant as inept, part of what GW saw as inadequacies in the Claimant’s performance was due to the Claimant’s disability. That link was there for GW to see, but which she chose at the time to disregard. It was related to disability. Again for reasons already given, and subject to time limits, it was also unfavourable treatment because of something arising in consequence of disability (the Claimant’s requirement for additional support and that she was less likely to meet performance standards). The Respondent has not sought to argue a justification defence in that regard. Because the harassment complaints succeed the conduct cannot also be direct age or direct disability discrimination.

4.43 GW also referred to the Claimant a cunt in relation to SR’s message about the accountancy fee increase. GW was in effect agreeing with SR in her views about the Claimant’s competency. In the same message GW also referred to the Claimant as a narcissistic shit house, which again related to the Claimant asking GW to find out about the increase in the accountant’s fee and GW’s belief that it was the Claimant’s job to do that not GW. GW was saying she was being put upon by the Claimant when GW was herself having a difficult time in her life. Again this related to GW dissatisfaction with the Claimant’s performance. For reasons already given, GW’s views on the Claimant’s competence were related both to GW’s age discriminatory beliefs about the Claimant and related to the Claimant’s disability. Subject to time limit considerations, referring to the Claimant as a cunt and a narcissistic shit house amounted to harassment related to age, harassment related to disability and unjustified discrimination because of something arising in consequence of disability. As it is harassment it cannot be direct age or direct disability discrimination detriment. The direct discrimination complaints are therefore not well founded and are dismissed.

4.44 These comments were also conduct, once it came to light, that was without reasonable and proper cause and was likely to harm trust and confidence and are relevant to the constructive unfair dismissal claim. These complaints are also brought as protected disclosure detriment complaints. However, the comments all pre-date the protected disclosure. They cannot therefore have been caused by the protected disclosure. The protected disclosure complaints about these comments are not well

4.45 We would add by way of a more general observation that GW in evidence to us said that the messages she had sent about the Claimant to TC were not true and came from a place of toxic fantasy when GW was at a very difficult time in her life. Some of her conduct GW could not explain but said that much of it was toxic fantasy but also because of the very bad place she was personally in with her own mental ill health that with the Claimant minor irritations because enormous and she was venting to TC who at the time was her partner and she thought it safe to do so. Some of what GW wrote in some of the messages to TC that were before us clearly were fantasy. For example, GW wrote about a time which allegedly CK had confronted the Claimant and told the Claimant what CK allegedly thought of her. All witnesses agreed that did not happen. But we do not find that everything GW was pure fantasy and indeed even those that are not true still reflect on how GW was thinking at the time about the Claimant and SC. And for the reasons set out in this Judgment we do find that GW, even if she regrets it now or sees it differently now, did hold these unkind, unsympathetic, and discriminatory views towards the Claimant as detailed in our Judgment. List of Issues paragraph 6.1.8: GW created a what’s app group referring to the Claimant’s family as the Clarkashian(s)

4.46 As set out in our findings of fact, we were unable on the evidence before us to conclude that GW had created a specific whats app group referring to the Claimant’s family as the Clarkashians. We find it likely that GW engaged in individual messaging where the Claimant and her family were referred to that way. But that is not the specific allegation that has been brought. The specific complaints relating to this allegation are therefore not well founded and are dismissed. We would in any event dismiss the protected disclosure detriment claim because the detriment pre-dates the protected disclosure. The protected disclosure therefore cannot have caused the detrimental treatment. List of Issues paragraph 6.1.9: GW referred to the Claimant’s daughter as “a fat prick” and another family member as “10 pints.”

4.47 These comments do not relate to the Claimant but to SC and SC’s partner. We therefore do not find that this was because of /related to age or disability or something arising in consequence of the Claimant’s disability. The complaints of age and disability discrimination are not well founded and are dismissed.

4.48 These were messages that were rude and mocking about the Claimant’s family and SC was also one of the Claimant’s member of staff. We do therefore find that once the Claimant found out about it, even though it did not directly refer to her, it was conduct that would undermine the Claimant’s own relationship of trust and confidence with the Respondent and was without reasonable and proper cause. It is therefore of relevance to the constructive unfair dismissal complaint.

4.49 The protected disclosure detriment complaint is not well founded and is dismissed because again the detriment pre-dated the protected disclosure and therefore cannot have been caused by it. List of Issues paragraph 6.1.10: GW referred to JM as “fat”, “retarded” and she could bounce [her] off walls and have [her] sacked.

4.50 GW did use the word retarded and said that she would have JM sacked. GW also referred to JM’s body size in an offensive way. We cannot find any message in which GW referred to bouncing JM off walls and therefore that particular sub allegation is not made out as a matter of fact.

4.51 The message relates to JM, not to the Claimant. There is no link to the Claimant’s protected characteristics of age or disability. The complaints of age and disability discrimination are therefore not well founded and are dismissed.

4.52 When the messages came to light we do, however, accept they would undermine the Claimant’s own trust and confidence in her employer. It showed a profound lack of respect for the staff, who were the Claimant’s own staff as practice manager. It is also conduct that would make someone in the Claimant’s position wonder, if that was being said about JM, what was being said about the Claimant. It is therefore relevant to the constructive unfair dismissal complaint.

4.53 The protected disclosure detriment complaint is not well founded and is dismissed because again the detriment pre-dated the protected disclosure and therefore cannot have been caused by it. List of Issues – January 2022 – Paragraph 6.1.11 – CK failed to take action against GW and FS regarding the email content instead advising the Claimant to “let it go” and to “carry an exercise wheel to get rid of the stress.”

4.54 We have dealt already with the complaint about lack of action in respect of FS and have found that action was taken other than in one material respect.

4.55 We have found as a matter of fact that the demonstration of the exercise wheel was an innocuous part of a clinical consultation and did not upset the Claimant. It was not any form of discrimination or victimisation and was not conduct without reasonable and proper cause that would undermine trust and confidence.

4.56 We have found that CK told the Claimant to “let go of the hate” and that CK was reluctant to take action in respect of GW’s conduct. Whilst we accept CK did not intend to be unsupportive to the Claimant (and he did support the Claimant in other ways such as allowing her flexibility in her work arrangements), we do find that CK did fail to take action. CK wanted an apology from GW to resolve things. But given the Claimant’s ongoing absence from work and inability to attend the workplace that had not worked. As time went on, whilst the Claimant veered in and out at times of feeling slightly brighter and more optimistic that she could move on and return to work, those periods never lasted and the Claimant never did full return to the workplace so the Claimant’s situation was never fixed. It was also not the kind of situation where there had been a formal grievance outcome and agreed resolution where an employer might legitimately say that the grievance had been closed and could not be reopened. Indeed by March 2022 even CK was talking about there being ongoing grievances.

4.57 There was in our judgement a lack of consideration at the time as to whether further investigations or actions should be taken in relation to GW, whether within the partnership agreement terms, or with regulators, or within a grievance or disciplinary procedure. Whilst not directly termed a grievance, there was a written complaint from the Claimant. CK may have thought there were mitigating factors, but in not following any process he deprived the Claimant of the opportunity to have the reassurance of an objective investigation process being followed during which the Claimant could input. CK also had a duty of care not only to the Claimant but to other staff members caught up in it too, such as JM. Wider relationships in the workplace needed fixing. In our judgement, if CK did not have the time or the skillset to deal with it, he should have ensured he found someone who could. It was not being led by Bright HR and CK did not ensure that it was.

4.58 We have found there were various reasons for the failure: CK did not generally get involved in day to day management having generally left it to the Claimant; he did not want to cause trouble for the partnership; and he was not comfortable with having to face and address the actual content of the GW messages.

4.59 We do not find that the failure to take action was because of or related to disability. A non-disabled individual in the same situation as the Claimant would have been treated the same way as CK. It was also not because of any of the things identified as being in consequence of disability. CK was not intending to be unsupportive to the Claimant because of her needs and it was not because of any of those things. The complaints of direct disability discrimination, harassment related to disability and discrimination arising from disability in relation to this allegation, are not well founded and are dismissed.

4.60 Subject to time limit considerations, the complaint of victimisation is well founded and is upheld. The Respondent accepts the Claimant’s complaint about GW was a protected act. The failure to take action in respect of GW was, in our judgement, attributable to the particular nature of the complaint. In particular, that CK was not comfortable in having to deal with the offensive and discriminatory nature of some of the material such as calling the Claimant an old knacker, a cunt and a narcissistic shit house. We do find here that CK took no action because of the particular nature of the GW material that the Claimant was complaining about, and the implications of what addressing it might mean. We find these were circumstances where CK would otherwise have had a duty to take action, and otherwise would have taken some steps to ensure action was taken even if not directly by him. For example, whilst the Claimant was not happy with the outcome in relation to FS, there was action taken and indeed in a different complaint relating to FS, CK signed off a disciplinary warning. We therefore do find that the particular nature of the complaint was a material influence on the failure to take action. It was to the Claimant’s detriment. She was left distraught, unable to understand why GW did what she did, and was unable to return to the workplace.

4.61 The failure to take action was conduct that harmed trust and confidence and was without reasonable and proper cause. It is relevant to the constructive dismissal complaint.

4.62 The Claimant also brings a protected disclosure detriment complaint. The Respondent accepts the Claimant made a protected disclosure in bringing to CK her concerns about GW having sent TC a screenshot of a patient’s sensitive medical appointment record. We have found as a matter of fact that CK failed to take action in respect of that complaint. Again here we find that the very nature and content of the protected disclosure, being about the breach of confidentiality of very sensitive medical records, lay to a material extent behind why CK did not take action. They were circumstances in which action would otherwise ordinarily have been taken and there was a duty to act. The Claimant had an expectation it would be dealt with; she specifically took it to CK. CK at the time may have been the DPO but at the very least as senior partner he had the responsibility to make sure there was one and to understand what the role entitled and the regulatory requirements were.

4.63 The making of the protected disclosure (which inherently includes its sensitive and unwelcome content) was a material influence on the omission to take action. Whilst we accept that the medical records were not the Claimant’s own, we do find the failure to take action was to the Claimant’s detriment. She was left feeling troubled by it and how it reflected on the care of and respect for patients and patient confidentiality, and the harm it could cause to the patient and the surgery where she was practice manager. It was also tied up with her feelings about the other things she had learned that GW had said about her. It was to the Claimant’s detriment as she was left with the sense that if GW would do that to the patient she would do it to the Claimant and her family. The Claimant was left troubled about what was being looked it, and said about it and laughed about it. It is reasonable for someone in the Claimant’s position to feel that way. Subject to the question of time limits, this protected disclosure detriment complaint would succeed. List of Issues – March 2022 – Paragraph 6.1.12 On 22 March 2022 instruct the Claimant to desist from working from home whilst off sick in an email despite having previously approved of this arrangement

4.64 We find that the email instructing the Claimant to cease working from home whilst off sick was clumsily drafted by CK. But the reason behind it was, following the advice from AH, to give the Claimant a period of proper and complete sick leave to recover in circumstances in which they would have funded cover in place. There was a need to get the practice back on an even keel and running better. The plan was for it to be for a limited period until the Claimant returned on a phased return to work in due course.

4.65 The instruction was not given because of/related to disability and the complaints of direct disability discrimination and harassment related to disability are not well

4.66 In terms of discrimination arising from disability, we find that being told to cease work was unfavourable treatment. The bar is a low one and needs to be assessed on the basis of what a reasonable person in the Claimant’s situation would feel. She found that doing some work helped her mentally and it was a fluid arrangement that the Claimant had in place, on and off, with CK that had gone on a long time. A reasonable person in her situation would consider being told to stop working to be unfavourable treatment. It would also place the Claimant at risk in the longer term of affecting the Claimant’s pay if she exhausted sick pay. Subjectively it made the Claimant feel like the Respondent was pushing her out.

4.67 The instruction was because of something arising in consequence of disability because the Claimant was not able to meet performance standards and she required additional support in the sense that not every aspect of her job was being done, and she was not able to attend the workplace. These things were in consequence of the Claimant’s disability.

4.68 Here in closing submissions the Respondent made an application to amend to add a justification defence. We were told the legitimate aim the Respondent was seeking to rely on was the “duty to make sure she is fully recovered before coming back to the practice.”

4.69 In our deliberations we decided not to grant the application to amend. We considered the caselaw amendment principles laid down in cases such as Selkent Bus v Moore and Modality Partnership v Vaughan. The application was made incredibly late in the day, in closing submissions. There is no good explanation as to why a justification defence was not pleaded at the outset or why the application to amend was made so late; the Respondent had earlier opportunities to file amended grounds of resistance. In balancing prejudice and hardship, whilst appreciating the prejudice to the Respondent would lie in not being able to run a justification defence, we considered the balance of prejudice lay in favour of the Claimant. The late raising of the application meant the Claimant was deprived of the opportunity to ask questions about it in cross examination of CK, for example as to alternative less discriminatory measure that could have been put in place.

4.70 But in any event we would not have found the instruction to cease all work to be a proportionate means of achieving the identified legitimate aim. In our judgement there were other more proportionate steps the Respondent could have taken to safeguard the Claimant’s health. CK could have discussed it with the Claimant further rather than applying a blanket of no further work. For example, the Claimant could have done some work on a phased return to work plan or the responsibilities could have been divided up between the Claimant and SM. The impact of the instruction on the Claimant was serious because it was a change to the Claimant’s long term custom and practice, made her feel like the Respondents wanted her out. Being able to work from home to some extent was important to the Claimant in giving he something to do and helping her mentally. Subject to the question of time limits this complaint of discrimination arising in consequence of disability would succeed.

4.71 For similar reasons we consider that this was also conduct which undermined trust and confidence and was without reasonable and proper cause.

4.72 We do not find that it was done because the Claimant had done a protected act and the victimisation complaint is not well founded and is dismissed. Likewise it was not done because the Claimant had made a protected disclosure and the protected disclosure detriment complaint is not well founded and is dismissed. List of Issues – Paragraph 6.1.13 – on 8 April 2022 SM accused the Claimant of having a bottle of Prosecco in her office assuming it was the Claimant’s even though the Claimant had been absent for months and the office had been used by other staff

4.73 We have found as a matter of fact that SM’s action was completely innocuous. It was not conduct that undermined trust and confidence.

4.74 SM did not know about any difficulties the Claimant may have with alcohol and it It was not conduct that was because of or related to disability nor did it happened because of any of the things said to arise in consequence of disability. The disability discrimination complaints about this allegation are not well founded and are dismissed. It also was not done because the Claimant made a protected disclosure and the protected disclosure detriment is not well founded and is dismissed. List of Issues – Paragraph 6.1.14 : On 16 April 2022 send the Claimant a recorded delivery letter alleging that she owed the surgery £17151.61 alleged to be threatening in nature

4.75 The letter was sent because of the lack of certainty and precision and therefore misunderstandings in the arrangements for CTC Limited to undertake the vaccinations. SM told CK that it looked like all the vaccination money that had come in had gone back out to CTC Limited. CK remembered the concerns he had expressed about a financial conflict of interest for the Claimant and genuinely believed this was not an arrangement that he had authorised. It had been compounded by the fact CK had not seen invoices or and had not been specifically asked to sign off transactions with CTC Limited and had not been checking the bank statements. CK did not know what the sums transferred to CTC Limited represented, such as the actual nursing costs incurred.

4.76 CK thought the potential implications of the Claimant’s actions could be serious and having discussed it with SM (and others) believed that a formal letter seeking explanations was the appropriate way forward. The Respondent had financial difficulties and therefore the payments to CTC Limited also were potentially significant in that respect. CK thought that the best course of action was also to require the Claimant to return the funds and that they could then obtain all of the necessary information (such as number of vaccinations and nursing costs) to in due course reassess who would get what.

4.77 We do find that assessed objectively there was reasonable and proper cause for the Respondent to write formally to the Claimant asking questions. There was a lack of clarity in the arrangements and in the sums that had been transferred. We do not, however, find that there was reasonable and proper cause for the Respondent to demand the return of all the money. The Respondent’s witnesses accepted that they knew the Claimant had paid the nurses so if the £17,151.61 were returned the Claimant would have borne the cost of the vaccination programme. The circumstances were also that there had been a tentative agreement that the Respondent would cover the nursing cost subject to the finalisation of terms and figures. It would have been more reasonable and proportionate for the Respondent to have simply requested information from the Claimant. It was reasonable to ask questions but it was not reasonable to instantly demand the money back. Demanding the money back went beyond more than raising a suspicion and raising questions with the Claimant. The demand for the money back coming out of the blue was conduct that was likely to undermine trust and confidence and was without reasonable and proper cause. It is relevant to the constructive unfair dismissal claim.

4.78 The letter and its terms happened because of misunderstandings as to the arrangements in place, the lack of clear financial information and because the surgery understood they had paid more to CTC than they had received from the health board. The demand for the return of the money was a poor choice but it was just that; a poor choice. The conduct was not because of or related to disability. It did not happen because of the things said to arise in consequence of disability. It was also not victimisation because of the Claimant’s protected acts and the Equality Act complaints are not well founded and are dismissed in relation to this allegation. It also was not materially influenced by the Claimant having made a protected disclosure and the protected disclosure detriment complaint is not well founded and is dismissed. List of Issues – Paragraph 6.1.16: Launched disciplinary proceedings against the Claimant

4.79 On 27 April 2022 the Claimant was invited to an investigation meeting rather than a formal disciplinary hearing. The disciplinary investigation was, however, done as part of the disciplinary procedure; depending on the outcome of the investigative stage it could have gone to a disciplinary hearing. It would be over pernickety to interpret this allegation as relating only to formal disciplinary proceedings; an investigation meeting under a disciplinary policy is still part of the process.

4.80 We find there was reasonable and proper cause for inviting the Claimant to an investigation meeting. The Respondent had genuine questions about the transfer of the funds and what they represented, and the Claimant was not forthcoming with answers to all their questions or in the provision of documents. The Claimant said she did not have everything, was under stress, was on sick leave and did not have access to her old work computer. However, the Claimant was able to send paperwork to her solicitors. If so, she could have sent it to the Respondent and could have explained what else she did not have available and why. The Claimant was running a limited company and the Respondent was otherwise entitled to expect that the Claimant would have separately available to her the records and financial information for that limited company. The Claimant had also been given extensions of time. There was important information that had not been given to the Respondent such as the number of vaccinations and the payments made to vaccinators. The Respondent thought the Claimant did not wish to answer all the questions or provide all the information. They were also concerned there was the possibility of non compliance with correct accounting procedures that involved NHS funds. The Claimant also had not helped herself by, for example, on 19 April asserting she had signed agreements. Nor did she attach what she referred to as being signed agreements. The Respondent needed to get to the bottom of it and had given the Claimant more time already. The request to attend an investigation meeting under the disciplinary policy therefore had reasonable and proper cause. 4.82 The request to attend the investigation meeting was not because of disability or related to disability and the direct discrimination and harassment related to disability complaints are not well founded and are dismissed. It was not retaliation for doing a protected act and the victimisation complaint is not well founded and is dismissed. It was also not done because the claimant had made a protected disclosure and the protected disclosure detriment complaint is also not well founded and is dismissed. 4.83 In relation to the complaint of discrimination arising in consequence of disability, the invite to an investigation meeting was unfavourable treatment from the Claimant’s perspective. The “something arising from” is said to be that the Claimant’s absence due to disability, meaning in turn she was unable to access documents required to defend herself against the disciplinary allegations. The Claimant said she was unable to access her work computer and it changed at some point at the beginning of April. She also could not obtain vaccination information from the WIS system. 4.84 The Claimant was absent which was linked to her disability, but we do not find that means that she was unable to access documents required to defend herself. As already identified the Claimant had other options as to how to respond and defend herself such as setting out what she did have, and identifying what she was unable to and why (such as WIS data). The unfavourable treatment was not because of the thing identified as being in consequence of disability and the complaint is not well founded and is dismissed. List of Issues – Paragraph 6.1.15: On 10 October 2022 not exercise the discretion to pay the Claimant for a further 6 months full pay and reduced her pay to half pay 4.85 This allegation is not as clearly put as it could have been. What happened on 10 October 2020 was that the Claimant was placed on to SPP only without either further full pay or half pay. 4.86 Neither party was clear with us why there were different sets of contractual terms and which applied to the Claimant (that includes the Claimant herself who as practice manager was responsible for such matters). But neither written contract entitled the Claimant to ongoing full pay. The sick pay policy found at [108] entitled the Claimant (albeit subject to a discretion) to 8 weeks full pay and 8 weeks half pay. The version at [95] gives an entitlement to 3 months full pay. The Claimant in fact received about 6 months full pay sick pay. SM was acting on the limited information that she had access to about the Claimant’s sickness and working arrangement history. 4.87 We accept the Respondent’s evidence that the considered the Claimant’s situation carefully but that at that point in time the funding for SM had come to an end and they could not afford to continue to pay both the Claimant and SM whilst the Claimant was on sick leave. We know the Respondent had financial difficulties. SM had taken HR advice who advised the decision was at the discretion of the partners. 4.88 The decision was not made because of the Claimant’s disability or related to her disability; a non disabled individual in the same circumstances would have faced the same situation. The Claimant identified one comparator an individual with a different disability of cancer who had received a year’s pay sick pay whilst receiving treatment, at the Respondent’s discretion. We do not consider that the circumstances are sufficiently similar to show that the difference in treatment was because of a difference in disability as opposed to reflecting different circumstances. 4.89 The decision was in a sense because of something arising in consequence of disability, namely the Claimant’s absence from work on sick leave. However, that absence is not identified as one of the matters arising in consequence of disability in the List of Issues. This is a situation in which the List of Issues in effect became the pleaded case because the Claimant only provided a narrative pleading. We do not consider that we can in those circumstances and at this stage fairly expand the things said to arise in consequence of disability to add this in. The Claimant had opportunity to flag up if the List of Issues was incorrect and did not do so. To now add it would be unfair to the Respondent. 4.90 The decision was also not made in retaliation for the Claimant having made protected acts, it was made for funding reasons. The Equality Act complaints are therefore not well founded and are dismissed. Likewise the decision was not made because the Claimant made a protected disclosure and the protected disclosure detriment complaint is not well founded and is dismissed. 4.91 In terms of the constructive dismissal complaint, we find that there was reasonable and proper cause for the decision to cease paying sick pay. The Respondent had funding difficulties. We appreciate that months earlier SM had spoken of placing the Claimant on to half pay, but it was an indication given on different financial considerations at the time and moreover it was not a promise, for example, to pay the Claimant for 6 months half pay. The Claimant had also since that time remained on full pay for a further period to her own advantage. 4.92 We do, however, consider that the Respondent should have given the Claimant more advance notice as to their intentions in relation to sick pay. The Claimant only had 4 days notice they were stopping her pay. We would find that the lack of forewarning of the ending of sick pay (rather than the ending of sick pay in itself) was a matter which undermined trust and confidence and was without reasonable and proper cause. List of Issues – Paragraph 6.1.17: Conducted the grievance in a discriminatory manner withholding information, delays, and despite upholding some complaints failed to take any action 4.93 We have not been given specific information about the alleged withholding of information in the grievance process. The Claimant at paragraph 74 of her witness statement refers to a page number in the hearing file and says it “relates to my SAR not being managed correctly or in a timely manner.” The updated page reference appears to be [238] which is an email to SM asking for the Claimant’s signed contract of employment on file and saying the Claimant was increasingly concerned about what information was being released to her, that documents were important and the same mistakes had been made with the Claimant’s SAR that remained incomplete and badly handled which the Claimant said was provided by further information being sent in September. In relation to the contract of employment; it must have been sent at some point because as we understand it we have it in the hearing file. It is also not clear how this exchange relates to the conduct of the grievance. The SAR is separate to the grievance process. 4.94 In his grievance investigation report BS dealt with a complaint that the Respondents had failed to respond to a SAR in a reasonable time or fully disclose all personal information they were processing. He said that the Respondents had exceeded the extended period of 3 months and that delay was caused by the extensive searches and having to rely on outside agencies (the Trust) to carry out searches. The grievance does not identify what documents are said to have been withheld. 4.95 This allegation is also not a matter about which witnesses were asked questions in cross examination. We do not find that we have been given sufficient cohesive, specific evidence to demonstrate that in conducting the grievance information was withheld. This complaint is not established as a matter of fact on the evidence put before us. There was no undermining of trust and confidence without reasonable and proper cause and the Equality Act complaints here are not well founded and are dismissed. The same applies to the protected disclosure detriment complaint. 4.96 In relation to the complaint about delay the grievance process, again we have been given very little specific evidence. The Claimant does not address the topic of delay in her witness statement in any detail. The Claimant raised her grievance on 13 June and she had her first meeting with BS on 29 September (having initially had an invite to an earlier date) and the second on 19 October. As BS set out in his report, some delay and the need for a second meeting was caused by the Claimant raising two additional grievances relating to the handling of her SAR and the decisions about sick pay which were new, more recent complaints. In the Tribunal’s industrial experience, it is also not unusual for a grievance investigator to have more than one meeting with the complainant. 4.97 The grievance covered a broad range of topics dating back over a period of years. BS had to be appointed to undertake the investigation, and go through the investigation process including obtaining documents and interviewing those involved. As stated, two additional grievance topics were also added in. In the particular circumstances we do not consider that there was unreasonable delay. This was not conduct without reasonable and proper cause that undermined trust and confidence. We also do not find that the timescales happened because of disability, or related to disability, or because of any of the things said to arise in consequence of disability. It was also not retaliation for the Claimant performing any protected act. It was a process that took and needed time. The Equality Act complaints are not well founded and are dismissed. The same applies to the protected disclosure detriment complaint. 4.98 We do, however, uphold the complaint that the grievance, despite upholding some complaints, failed to take any action. 4.99 In relation to the inappropriate comments made about the Claimant by GW, it was accepted they had been said and they comments were unacceptable resulting in the Claimant being “very upset.” So in content and substance the Claimant’s grievance was upheld. However, no action was taken against GW. As we understand it a partnership agreement would have been in place that we do not have a copy of (see paragraph 23 of the Claimant’s witness statement), which would ordinarily contain something akin to a disciplinary procedure. BS’s investigation report did not recommend any action. BS was not the ultimate decision maker as to what should happen which lay with CK and GW. 4.100 BS appears to seek to justify taking no action on the basis that GW was not a partner at the time of the messages or the Claimant’s employer. However, that completely ignores the fact that an employee such as the Claimant is entitled to raise grievances against a co-worker or a boss with a responsibility on the part of the employer to hear the grievance and take appropriate action. Further, GW was a partner at the time some of the messages were sent. For example, GW was a partner at the time of the messages relating to the accountants fee in or around March 2021. Whilst the Respondents asserts this material was not attached to TC’s original email, the complaint and therefore the emails were before BS as part of the grievance. They are referred to in the grievance. Both BS and GW should have been in a position to establish the likely date. It strikes the Tribunal that BS simply took the easy route in accepting GW what was saying in seeking to minimise her conduct without independently investigating and verifying it. 4.101 BS also appears to minimise the need to take action by finding that GW had apologised to the Claimant, believed the Claimant had accepted the apology and also that the Claimant in attending the meeting on 22 February 2022, and in sending her staff email, was happy and confident to continue in her role. It is said by BS this means the Claimant did not have concerns about harassment and believed her employers supported her. CK said in evidence that he considered the Claimant was not entitled to a formal finding in her favour because the Claimant had accepted an apology. But again in our judgement it is a fallacious conclusion. If GW had apologised, it does not mean that the Claimant was not entitled to raise a grievance about the conduct and have a grievance outcome thar represented the actual substantive findings. Secondly, the situation was not resolved and that was evident to everyone including CK, GW and BS if he had properly considered it. As set out in our findings of fact and earlier conclusions the Claimant was veering between suggesting she may be able to move on at times and at others being clear she was not able to. But more importantly she had not been able to physically return to the workplace; a very clear indication that all was not resolved. This was clear to CK who spoke about ongoing grievances and to GW when she wrote to the Claimant about the practice being “broken.” 4.102 GW was in a conflict situation in relation to the grievance outcome. CK needed to take the lead and had the responsibility to take action. Similar to our findings about the January 2022, we find that CK just wanted the matter to go away and so blindly accepted BS report, brushed the substance of the findings that were in the Claimant’s favour under the carpet and then took no further action in response to its content. 4.103 Similarly in substance BS in his report found that the Claimant had been harassed by GW in calling the Claimant an “old knacker” but again he, and in turn the partners in their decision letter, failed to formally recognise that. BS also seems to have in substance upheld the Claimant that colleagues had referred to the Claimant as “deafo” and said the Respondent should have policies in place to ensure there is no language used in the workplace which is in any way discriminatory. Yet again this was not recognised by the Respondent in the outcome letter of 17 November 2022. 4.104 This outcome to the grievance was conduct that seriously undermined trust and confidence and was without reasonable and proper cause. The Respondents had overall responsibility for the grievance process, result and action to be taken. 4.105 We do not consider that the failure to formally recognise the true position and take action happened because of or was related to the Claimant’s disability. An individual who was not disabled would have been treated in the same way in the same circumstances. It also did not happen because of any of the things arising in consequence of disability. The complaints of discrimination arising from disability, direct disability discrimination and harassment related to disability are not well founded and are 4.106 However, the complaint of victimisation is well founded and is upheld. Our analysis is the same as in relation to the position in January 2022. We consider that the type of allegation made it more uncomfortable for CK to deal with i.e. the nature of the material that TC disclosed where GW was making discriminatory comments. A material influence on CK’s reluctance to engage with the complaint, recognise what the true finding in substance of the grievance report was and take action was the Claimant’s protected act in having complained about offensive discrimination by CK. We consider that in other circumstances the success of the grievance would have been recognised and action taken. 4.107 The complaint of protected disclosure detriment is not well founded and is dismissed. The question is whether CK failed to take action in respect of the complaints about GW that in substantive reality had been upheld, because of the Claimant’s earlier complaint about breach of patient confidentiality. Here we do not find that it was a material influence. BS’s investigation report did not directly address this specific alleged breach of patient confidentiality. We do not know if BS even had the particular screenshot found at [170]. We do not find that it was operating on CK’s mind when deciding how to respond to BS’s grievance report. List of Issues Paragraph 6.1.18: November 2022 designated an inappropriate person to conduct the grievance appeal who was not qualified to undertake the role who disclosed the grievance and confidential medical records of the Claimant to other partners in his practice. 4.108 We do not find that SM designated an inappropriate/unqualified person to undertake the grievance appeal. SM, having taken on board concerns expressed about Peninsula in other cases, and gone out and searched for an individual who to her understanding was appropriate and qualified. She went to TM because she understood he had relevant experience. She made proper enquiries at the time. SM would not have been reasonably aware when TM was instructed that he would in due course say that he wanted his own HR legal advice, which in turn raised a question about funding for that (or indeed as the Claimant and SM interpreted it, that the grievance as a whole may be passed over to a HR specialist or solicitor). 4.109 We also do not find that TM disclosed the grievance and confidential medical records to other partners in his practice. TM’s email to the Claimant at [397] in fact said that the matter had been kept very confidential within his office and he had only notified the Partners of a request from a Cluster practice to assist with a HR matter. I.e. the Partners had not seen the grievance or confidential medical records, all they had been told was that there was a request from a Cluster practice to assist in an HR matter. 4.110 This complaint is not made out as a matter of fact and was not conduct without reasonable and proper cause that undermined trust and confidence. There was no less favourable/unfavourable/harassing conduct or treatment. It was not direct disability discrimination, or harassment related to disability, or discrimination arising from disability. It was not victimisation. The Equality Act complaints in this regard are not well founded and are dismissed. Likewise the protected disclosure detriment complaint is not well founded and is dismissed. Summary of findings subject to time limit considerations 4.111 In summary the findings we have made in the Claimant’s favour are as follows:

• In the period up to June 2020, FS accessing the Claimant’s medical records – harassment related to disability, discrimination arising in consequence of disability, and conduct without reasonable and proper cause likely to undermine trust and confidence;

• FS comments at the August 2020 staff meeting and in her draft email terming the Claimant a drug seeker – harassment related to disability, discrimination arising in consequence of disability and conduct without reasonable and proper cause likely to undermine trust and confidence

• FS in August 2020, when challenged, denying remembering why she had accessed the Claimant’s medical records and becoming irate and saying she would never treat the Claimant or members of her family – conduct without reasonable and proper cause likely to undermine trust and confidence

• In March 2021 GW shared a message with RB where the practice accountant referred to the Claimant as inept and if she employed the Claimant she would say her – harassment related to disability, harassment related to age, discrimination arising in consequence of disability, conduct without reasonable and proper cause likely to undermine trust and confidence;

• In March 2021 (but not known about by the Claimant until December 2021) GW described the Claimant as a cunt and a narcissistic shit house – harassment related to disability, harassment related to age, discrimination arising in consequence of disability, conduct without reasonable and proper cause likely to undermine trust and confidence;

• In late October 2020 or November 2020 (but not known about by the Claimant until December 2021) GW described the Claimant as an old knacker GW was trying to dislodge but like any decent tumour had a long root - harassment related to disability, harassment related to age, discrimination arising in consequence of disability, conduct without reasonable and proper cause likely to undermine trust and confidence;

• On varying dates (but not known about by the Claimant until December 2021) GW referred to getting JM sacked, as retarded and about JM’s body size – conduct without reasonable and proper cause likely to undermine trust and confidence

• On a date between April 2020 and December 2021 (but not known about until December 2021) GW described the Claimant’s daughter as a fat prick and another family member as 10 pints – conduct without reasonable and proper cause likely to undermine trust and confidence;

• In January 2022 the Respondent failed to take action in respect of the Claimant’s complaint that FS had been untruthful in her original response to the complaint about accessing of records – conduct without reasonable and proper cause likely to undermine trust and confidence;

• In January 2022 CK failed to take action against GW regarding the email content, instead advising he Claimant to let go of the hate – victimisation, conduct without reasonable and proper cause likely to undermine trust and confidence, protected disclosure detriment;

• On 30 March 2022 the Claimant was instructed to desist from working from home whilst off sick despite the arrangement having previously been approved – discrimination arising in consequence of disability and conduct without reasonable and proper cause likely to undermine trust and confidence;

• On 16 April 2022 the Claimant was sent a letter seeking the repayment of £17,151.61 – conduct without reasonable and proper cause likely to undermine trust and confidence;

• In or around October 20022 not providing the Claimant with adequate notice of the ending of her sick pay – conduct without reasonable and proper cause likely to undermine trust and confidence;

• In the grievance process, despite in reality upholding some complaints, the Respondent failed to formally recognise this and take action – conduct without reasonable and proper cause likely to undermine trust and confidence and victimisation. Overall assessment of the Constructive Unfair Dismissal claim 4.112 The Claimant identified the handling of the grievance appeal as being the “last straw.” In fact we have found that this was innocuous and was not something that would contribute to a loss of trust and confidence when viewed objectively. 4.113 However, the case law is clear that we then have to look back at what occurred before then. When we consider the earlier matters that we have found did damage trust and confidence and were without reasonable and proper cause we find that the Respondents did behave in a way that was likely to destroy or seriously damage trust and confidence. The grievance outcome itself would be sufficient, but in any event the cumulative impact of the points we upheld in the Claimant’s favour culminating in the grievance outcome would also meet the relevant threshold. The breach was a fundamental one and the Claimant was entitled to treat the contract as being at an end. 4.114 The Respondent argues that the Claimant did not resign in response to the breach. They assert that the Claimant resigned because the Respondent had said they were continuing with the disciplinary investigation in relation to the payments made to CTC Ltd and that the Claimant resigned because her conduct in that regard would come to light. 4.115 We do not find that the Claimant’s resigned to get out of a disciplinary process. We find the Claimant subjectively herself thought there was an agreement in place with regard to CTC and that the transfers were legitimate. As stated earlier, whilst the Claimant may have been somewhat foolish in terms of paperwork and getting each transaction approved by CK, she was not hiding the activities of CTC Limited. The practice nurses were working for CTC Limited. The payments to CTC Limited showed in the bank statements. 4.116 The matters that we have found constituted the overall breach were an effective reason for the Claimant’s resignation. 4.117 We therefore turn to the question of affirmation. The last breaching matter was the grievance outcome letter of 17 November 2022. The Claimant then resigned just under a month later on 12 December 2022. We do not find that the Claimant engaged in conduct that showed she was choosing to keep the contract alive even after the breach. The Claimant was unwell and remained on sick leave whilst she sought to appeal the grievance outcome. Exercising that right of appeal was not affirmation; indeed it communicated the opposite – that the Claimant was very unhappy with the situation. That the Claimant resigned before the appeal could be heard does not change the analysis that there was no affirmation. 4.118 The Claimant’s was therefore dismissed. The Respondents have not argued that there was a fair reason for dismissal and therefore the Claimant’s constructive unfair dismissal claim is well founded and is upheld. Constructive Wrongful Dismissal 4.119 It follows from the above analysis that the Claimant was also constructively wrongfully dismissed and that complaint (i.e. the notice pay complaint) is also upheld. Equality Act Complaints – Time limit analysis and overall outcome 4.120 The last discriminatory act we have found is the victimisation claim relating to the grievance outcome of 17 November 2022. The Claimant entered Acas early conciliation on 12 December 2022 and the claim (for that last complaint at least) was in time. 4.121 We have to consider whether there was an act extending over a period so as to bring the earlier complaints that we would uphold (subject to time limits) as being in time. We find that there was such a continuing act for some of the earlier complaints but not all. 4.122 CK’s failure to take action in January 2022 and then again at the time of the grievance outcome, whilst failing to recognise the true finding of the grievance in late 2022 was about the same matters, by the same person with the same motive, as found. That was an act extending over a period. 4.123 We have found GW’s actions to be age and disability harassment and discrimination arising in consequence of disability in respect of in sharing the accountant’s message in March 2021 and in the comments made to TC that the Claimant learned of in December 2021 when the Claimant was called a cunt, narcissistic shithouse and old knacker that needed to be dislodged but like a tumour was difficult to remove. The Claimant was being victimised for having raised her complaint about this very discriminatory conduct by GW that CK as a partner did not wish to have recognise and to then take action about. The Claimant being called a cunt and a narcissistic shit house in March 2021 related to GW’s discriminatory views, as a partner, in the Claimant’s capability as practice manager. The Claimant being referred to as an old knacker that needed to be dislodged was in late October or November 2020 when GW either had become or was about to become a partner and again related to her discriminatory views as to the Claimant’s competency. It is that discriminatory conduct and the partnership that CK was ultimately protecting by taking no action even though he did not share GW’s personal views and came at cost to the Claimant. GW in her discriminatory actions had been expressing in a sense her views on what she considered best for the partnership. CK in discriminating against the Claimant by protecting GW likewise was promoting what he saw to be the needs of the partnership. We therefore find that there is sufficient linkage between this discriminatory conduct of GW and CK such as to amount to an act extending over a period. They were not unconnected, isolated, specific acts. To be clear we do not, however, find that CK was at any stage seeking to get the Claimant removed from her job or to force her to resign. 4.124 We do not find the same in respect of the other Equality Act complaints that we have found to be well founded subject to time limit considerations. The decision in March 2022 to tell the Claimant to cease working, whilst made by CK was unrelated to GW’s actions other than it providing the context for the Claimant being off work. In our judgement there is also not sufficient linkage with FS’ discriminatory conduct. CK was not seeking to protect FS in the same way. These are not part of a discriminatory act extending over a period. 4.125 The complaints about FS and the complaint about being instructed to cease work were presented out of time. The FS complaints relate to the period June 2020 and August 2020 (albeit the Claimant did not know about FS seeming to have told an untruth until December 2021.) The instruction to stop working was March 2022. As individual complaints they are significantly out of time. We do not consider, on balance, that is just and equitable to extend time. It could be said that the prejudice to the Respondent would be limited as they were able to call evidence to deal with the instruction to stop working, and would have on the face of it been able to call FS to give evidence. But there is some prejudice still in FS not having given evidence and in our having to make a decision about some really old events. We found the decision making in relation to FS particularly difficult. There is also prejudice to the Respondent in losing the benefit of what is otherwise a limitation defence. If time is not extended there is prejudice to the Claimant in not ultimately being successful in complaints that would otherwise be upheld. But it is limited by the fact other key complaints are in time and do succeed and the constructive unfair dismissal complaint succeeds. These are not matters that are likely to make a very substantial difference when it comes to assessing remedy. It most likely impacts on any injury to feelings award. Of most significance to us was that the Claimant did in around May 2022 have access to legal advice. The complaints could have been brought then (if not before). They were known about as they formed part of the grievance and indeed the complaint about being instructed to cease working may have been in time at that point if promptly brought. We acknowledge that there was an ongoing grievance. But the allegations relating to FS were old and we consider there was some impetus on the Claimant to bring them as soon as she could and impetus on the Claimant to bring a complaint about the instruction to cease working that was in time. Weighing it all into the balance we do not find it would be just and equitable to extend time for these complaints. They are outside the Tribunal’s jurisdiction and are dismissed. 4.126 This means that ultimately the successful Equality Act complaints forming part of a continuing act are GW’s discriminatory comments about the Claimant, CK’s failure to take action in January 2022 and CK’s failure to recognise the grievance was in substance in part upheld and take action in November 2022. Protected Disclosure Detriment and Dismissal time limits and overall outcome 4.127 We have to consider this separately because whistleblowing complaints are governed by a different piece of legislation to Equality Act complaints. 4.128 We have found one protected disclosure detriment that happened in January 2022. Acas early conciliation was not started until December 2022, long outside the 3 month time period. Time can only be extended where it was not reasonably practicable to present the claim within time and it was presented within a reasonable time period thereafter. It is a more stringent test than the just and equitable test. We find that it would have been reasonably practicable for the Claimant to have presented that complaint within time. Whilst we appreciate that she had some ill health, the Claimant is an intelligent individual with access to resources including the internet and the ability to obtain legal advice (which she did after the letter of 16 April 2022). She was able to undertake some work from home such as accounts preparation and so was not incapacitated from undertaking research and taking action. It was reasonably feasible for the Claimant to have understood the time limits and have presented the complaint within time. We would also find that the Claimant did not present the claim within a reasonable time period after the expiry of the primary time limit. By May 2022 the Claimant was in receipt of legal advice and it would have been reasonable for that advice to cover time limits and for any such complaint to have been presented far earlier than December 2022. 4.129 That particular protected disclosure detriment complaint is dismissed as being outside of the Tribunal’s jurisdiction as it was presented out of time. The remaining protected disclosure detriment complaints are in any event not well founded and are 4.130 We turn to the protected disclosure dismissal complaint. We do not find that the reason or principal reason for dismissal was that the Claimant made the protected disclosure. In the unfair constructive dismissal section above we have set out our findings as to what was the breaching conduct of the Respondent and we have evaluated the reasons why that conduct occurred. When assessed in the round we cannot find either that the sole reason or the main reason for the Respondent’s breaching conduct was that the Claimant made the protected disclosure about patient confidentiality. The automatic unfair dismissal claim is therefore not well founded and is dismissed. (To be clear however this has no effect on the “ordinary” constructive unfair dismissal and wrongful dismissal complaints which have been upheld). Holiday Pay 4.131 This dispute is about the carry forward of accrued and untaken holiday from the previous year which was not paid on termination of employment. The Claimant was paid in respect of her holiday entitlement in the holiday year she was in as at the date of termination. 4.132 The Claimant was in somewhat of a grey area because she was during the period in question, and in particular in the latter few months of the holiday year, both on sick leave but also undertaking some ad hoc home working. 4.133 We find on balance that the Claimant was entitled, under the Working Time Regulations read in compliance with the Working Time Directive, to carry forward some of her accrued and undertaken leave on expiry of the earlier leave year. The EU case law has stressed the health and safety importance of annual leave as being a period of rest and relaxation which is separate to and not achieved by other leave such as sick leave. The Claimant was unable to properly take that leave in its leave year in the sense of achieving that rest and relaxation, because of her ill health that was keeping her at home and meaning she was only doing ad hoc work here and there. CK had recognised the Claimant’s ill health at the time in accommodating that arrangement and indeed encouraging the Claimant to take time off on sick leave. The Claimant was entitled to carry a proportion forward to the next leave year. 4.134 We do acknowledge this conclusion runs contrary to the Claimant’s position expressed at the time that she was working and not on sick leave, when the Claimant was seeking to maximise her pay entitlement. In a sense the Claimant is having her cake and eating it. However, we find the reality of the situation was that the Claimant was significantly impaired at the time, had periods of certified sick leave or was been recommended to take sick leave, and the amount of work she was likely to have been doing was not extensive. We find she was unable to take her annual leave at the time due to her health and was unable to secure that annual leave rest and relaxation. Once carried forward the annual leave remained untaken in the final leave year and the Claimant was therefore entitled to payment on termination of her employment. Whilst her requests were not always clearly worded, she had sought to take the carried forward leave as paid leave in the final leave year, but had not been permitted. 4.135 The carrying forward only applies to the EU annual leave and not the additional domestic award under Regulation 13A. The case law in this area is complicated given the holiday pot is also a composite whole and the parties prior to the remedy hearing need to consider the relevant case law and provide either an agreed or their competing calculations as to what the outstanding entitlement is and how it should be calculated. They are also encouraged to be proportionate and consider whether a figure is capable of agreement. 4.136 The remainder of the Claimant’s accrued holiday entitlement for the previous leave year was contractual and no contractual discretion was exercised to allow her to carry that forward. It will therefore have been lost and the Claimant’s claim succeeds only in relation to the carrying forward and payment on termination of the EU annual leave element under Regulation 13.

[5]Next steps 5.1 The successful complaints will be listed for a remedy hearing. Employment Judge Harfield will issue separate remedy case management orders. The parties should note (albeit this is not a definitive list and there will be numerous other remedy related issues to decide) that some of the key remedy questions the Tribunal will have to consider include what, if this Respondent had acted fairly and in a non-discriminatory fashion, would have happened to the Claimant’s future employment. We also will need to consider the Claimant’s mitigation of loss. The parties will also have to address the Tribunal on whether there had been breach of the Acas Code and the appropriateness of any increase or decrease to an award as that was not addressed at the hearing before us in what was already an exceptionally complicated case. Appendix – List of Issues The Issues 32. The issues the Tribunal will decide are set out below.

[1]Time limits 1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 13September 2022 may not have been brought in time. 1 .2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 1 .2.2 If not, was there conduct extending over a period? 1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? 1 .3 Was the unauthorised deductions from wages (unpaid holiday pay) made within the time limit in section 23 of the Employment Rights Act 1996? The Tribunal will decide:

1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of the wages from which the deduction was made? The claim relates to unpaid holiday from the previous holiday year April 2021 - March 2022. See below.

1.3.2 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?

1.3.3 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?

[2]Unfair dismissal2.1 Was the Claimant dismissed?2.1.1 Did the Respondent do the following things: 2.1.1.1 All matters relied upon and listed under the discrimination complaints below.

2.1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:2.1.2.1 whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and

2.1.2.2 whether it had reasonable and proper cause for doing so.

2.1.3 Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the Claimant was entitled to treat the contract as being at an end.

2.1.4 Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation.

2.1.5 Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

2.2 If the Claimant was dismissed, what was the reason or principal reason for dismissal - i.e. what was the reason for the breach of contract?

2.3 Was it a potentially fair reason?

2.4 Did the Respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the Claimant?

2.5 Was the reason or principal reason for dismissal that the Claimant made protected disclosures? If so, the Claimant will be regarded as unfairly dismissed.

[3]Remedy for unfair dismissal3.1 Does the Claimant wish to be reinstated to their previous employment?

3.2 Does the Claimant wish to be re-engaged to comparable employment or other suitable employment?

3.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.

3.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.

3.5 What should the terms of the re-engagement order be?

3.6 If there is a compensatory award, how much should it be? The Tribunal will decide:3.6.1 What financial losses has the dismissal caused the Claimant?

3.6.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

3.6.3 If not, for what period of loss should the Claimant be compensated?

3.6.4 Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

3.6.5 If so, should the Claimant’s compensation be reduced? By how much?

3.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

3.6.7 Did the Respondent or the Claimant unreasonably fail to comply with it by delays in dealing with the grievance, omitting documents and arranging for an appropriate person to deal with the appeal?

3.6.8 If so is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?

3.6.9 If the Claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct?

3.6.10 If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion? 3.6.1 1 Does the statutory cap of fifty-two weeks’ pay apply?

3.7 What basic award is payable to the Claimant, if any?

3.8 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent?

[4]Wrongful dismissal / Notice pay4.1 What was the claimant’s notice period?

4.2 Was the Claimant paid for that notice period?

[5]Disability 5.1 It is accepted that the Claimant has a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about.

[6]Direct age and disability discrimination (Equality Act 2010 section 13)6.1 Did the Respondent do the following things: June 20206.1.1 Nurse Felicity Smith (“FS”) accessed the claimant’s patient records and stated at a staff meeting that certain staff (whilst not naming the claimant it is alleged to have been obvious she was referencing the claimant) were jumping the queue choosing the weaker doctor to obtain medication; (disability)

6.1.2 FS later denied accessing the notes and was verbally aggressive to the claimant and refused to treat the claimant or her family. No action was taken against FS for this conduct; (disability)

6.1.3 In a retaliatory manner Dr Williams (“GW”) informed the claimant that FS was “wound up” the claimant had entered three family members onto the shielding list and she should avoid continuing to complain that FS had accessed her notes; (disability)

6.1.4 Dr Williams shared a message with Nurse Rachel Barnes (“RB”) in which the practice accountant referred to the claimant as “inept” and if she employed her she would sack her; (age1 and disability); December 2021

6.1.5 On 22 December 2021 a Mr T Collinge, former partner to GW sent an email to the practice congaing graphic hate material about the claimant and her family namely:

6.1.6 A draft email from FS to GW admitting she had accessed the claimant’s notes and referring to her as a “drug seeker”; (disability)

6.1.7 Messages from GW that referred to the claimant as “cunt”, “narcissistic shit house”, “an old knacker” that needs to be dislodged, but “like a tumour that was deep rooted and difficult to remove”; (age and disability)

6.1.8 GW had created a what’s app group referring to the claimant’s family as the “CLARKASHIAN(S);2

6.1.9 GW referred to the claimant’s daughter as “a fat prick” and another family member as “10 pints”;3 Footnotes 1 The claimant says that the language used was age and disability discriminatory in particular the use of the word “inept” has age as well as mental health connotations. 2 This appears to be a reference to the TV programme the Kardashians. This treatment was not directed to the claimant but to family members / a colleague. It is also unclear how this relates to or was because of age /disability. This may give the claimant difficulty with pursuing this particular conduct as a discrimination complaint. It is relevant as it may amount to corroborative evidence of the alleged discriminatory motives. 3 As above 6.1 .10 GW referred to JM as “fat”, “retarded” and she could bounce [her] off walls and have him sacked. 4 Footnote 4 As above 6.1 .11 Dr Kamutasa failed to take action against GW and FS regarding the email content instead advising the claimant to “let it go” and to “carry an exercise wheel to get rid of the stress”; (disability) March 2022 6.1.12 On 22 March 2022 instruct the claimant to desist from working from home whilst off sick in an email, despite having previously approved of this arrangement; (disability) 6.1.13 On 8 April 2022 Sushila Manilal accused the claimant of having a bottle of Prosecco in her office assuming it was the claimant’s even though she had been absent for months and it had been used by other staff; 5 (disability) 6.1.14 On 16 April 2022 send the claimant a recorded delivery letter alleging she owed the surgery £17,151.61 alleged to be threatening in nature; (disability); 6.1.15 On 10 October 2022 not exercise the discretion to pay the claimant for a further six months full pay and reduced her pay to half pay; 6.1.16 (date required) Launched disciplinary proceedings against the claimant; (disability) 6.1.17 (date required) Conducted the grievance in a discriminatory manner withholding information, delays and despite upholding some complaints failed to take any action; (disability) 6.1.18 November 2022 designated an inappropriate person to conduct the grievance appeal who was not qualified to undertake the role (disability) who disclosed the grievance and confidential medical records of the claimant to other partners in his practice.6

6.2 Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated. The Claimant has not named anyone in particular who she says was treated better than she was.

6.3 If so, was it because of age and / or disability? Footnotes 5 The claimant says she has struggled with alcohol as part of her mental health and this was motivated by that knowledge 6 1 have added the second part of this sentence to reflect the pleaded claim, as this was according to the claimant, the last straw and it was omitted from the previous list of issues.

6.4 The respondent has asserted in their response that at the time GW sent the messages she was “not a partner of the Respondent”. It is unclear whether the respondent intends to raise the vicarious liability defence in regard to this conduct by GW. They shall deal with this in their amended response.

6.5 Age only Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: 6.5.1 Respondent to set out in amended response if relied upon

6.6 The Tribunal will decide in particular:6.6.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

6.6.2 could something less discriminatory have been done instead;

6.6.3 how should the needs of the Claimant and the Respondent be balanced?

[7]Discrimination arising from disability (Equality Act 2010 section 15)7.1 Did the Respondent treat the Claimant unfavourably by: 7.1.1 The same matters relied upon for the direct disability discrimination claims.

7.2 Did the following things arise in consequence of the Claimant’s disability: 7.2.1 The claimant was less able to manage challenging staff behaviour; The claimant required additional support; The claimant had issues with alcohol misuse; The claimant was less likely to meet performance standards; The claimant’s absence meant she was unable to access documents required to defend herself against the disciplinary allegations.

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 Respondent to confirm.

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]Harassment related to age and disability (Equality Act 2010 section 26)8.1 Did the Respondent do the following things: 8.1.1 All matters relied upon for the direct discrimination claim.

8.2 If so, was that unwanted conduct?

8.3 Did it relate to age and / or disability ?

8.4 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?

8.5 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.

[9]Victimisation (Equality Act 2010 section 27)9.1 Did the Claimant do a protected act as follows:9.1.1 In June 2020 report to Dr Kumutasa that Nurse Smith had accessed her patient records and use the information to make inappropriate comments about the claimant’s mental health at a staff meeting?

9.1.2 In December 2021 report to Dr Williams and in January 2022 report to Dr Kumutasa the email content from Mr Collinge (described by the claimant as hate speech)?

9.2 Did the Respondent do the following things:9.2.1 Matters set out at paragraphs 6.1.2, 6.1.3, 6.1.1 1, 6.1 .12, 6.1.14-6.1.18 and;

9.2.2 In June 2020 the claimant was instructed to say staff had been furloughed when they had not been. GW informed FS no staff were furloughed who then told the staff which undermined the claimant and made managing the staff difficult.

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

9.4 If so, was it because the Claimant did a protected act?

9.5 Was it because the Respondent believed the Claimant had done, or might do, a protected act?

[10]Remedy for discrimination or victimisation10.1 Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?

10.2 What financial losses has the discrimination caused the Claimant?

10.3 Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

10.4 If not, for what period of loss should the Claimant be compensated?

10.5 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?

10.6 Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?

10.7 Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

10.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

10.9 Did the Respondent or the Claimant unreasonably fail to comply with it by [specify breach]?

10.10 If so is it just and equitable to increase or decrease any award payable to the Claimant?

10.11 By what proportion, up to 25%?

10.12 Should interest be awarded? How much? 1 1 . Protected disclosure 11.1 Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide: 11.1.1 What did the Claimant say or write? When? To whom? The Claimant says she made disclosures on these occasions: 11.1.1.1 In December 2021 report to Dr Williams and in January 2022 report to Dr Kumutasa the email content from Mr Collinge. The claimant showed Dr Kumutasa the messages which included screen shots of confidential patient consultations [text removed as it contains patient confidential material] 1 1 .1.2 Did she disclose information? 11.1.3 Did she believe the disclosure of information was made in the public interest? 11.1.4 Was that belief reasonable? 1 1 .1.5 Did she believe it tended to show that: 1 1 .1.5.1 The respondent had failed, was failing or was likely to fail to comply with the legal obligation of the common law duty of patient confidentiality . 11.1.6 Was that belief reasonable?

[12]Detriment (Employment Rights Act 1996 section 48)12.1 Did the Respondent do the following things: 12.1.1 Matters listed above at 6.1.7 - 6.1.18 and 9.2.2 7

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

12.3 If so, was it done on the ground that she made protected disclosures?

[13]Remedy for Protected Disclosure Detriment13.1 What financial losses has the detrimental treatment caused the Claimant?

13.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? 1 3.3 If not, for what period of loss should the Claimant be compensated? Footnote 7 This would appear to pre date the disclosures but shall be decided at the final hearing 13.4 What injury to feelings has the detrimental treatment caused the Claimant and how much compensation should be awarded for that? 13.5 Has the detrimental treatment caused the Claimant personal injury and how much compensation should be awarded for that? 1 3.6 Is it just and equitable to award the Claimant other compensation? 13.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 1 3.8 Did the Respondent or the Claimant unreasonably fail to comply with it? 13.9 If so is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%? 13.10 Did the Claimant cause or contribute to the detrimental treatment by their own actions and if so would it be just and equitable to reduce the Claimant’s compensation? By what proportion? 13.11 Was the protected disclosure made in good faith? 13.12 If not, is it just and equitable to reduce the Claimant’s compensation? By what proportion, up to 25%?

[14]Holiday Pay (Working Time Regulations 1998)14.1 What was the Claimant’s leave year?

14.2 How much of the leave year had passed when the Claimant’s employment ended?

14.3 How much leave had accrued for the year by that date?

14.4 How much paid leave had the Claimant taken in the year?

14.5 Were any days carried over from previous holiday years?

14.6 How many days remain unpaid?

14.7 What is the relevant daily rate of pay? REMEDY JUDGMENT 1. The Claimant is awarded the gross sum of £142,803.89 made up as follows:

a. Basic award £16,844.50;

b. Notice pay £6606.31 (including 5% Acas uplift);

c. Other past and future financial losses £60,873.89 (including 5% Acas uplift and interest);

d. £32,550.00 injury to feelings (including 5% Acas uplift);

e. £10,658.56 interest on injury to feelings;

f. £15,270.13 grossing up for tax purposes.

[1]Introduction1.1 This was a remedy hearing following a liability Judgment where the following complaints were upheld:1.1.1 “ordinary” constructive unfair dismissal;

1.1.2 Constructive wrongful dismissal (notice pay);

1.1.3 Harassment related to disability, harassment related to age, and discrimination because of something arising in consequence of disability in respect of:1.1.3.1 In March 2021 GW sharing with RB the message from the practice accountant;

1.1.3.2 GW’s inappropriate messages about the Claimant which the Claimant found out about in December 2021;

1.1.4 Victimisation:1.1.4.1 In January 2022 failing to take action in respect of GW;

1.1.4.2 In November 2022 failing to recognise that in substance parts of the Claimant’s grievance were upheld and to take action;

1.1.5 Holiday pay that the Claimant was entitled to carry forward from the previous leave year and be paid on termination.

1.2 We had before us at the remedy hearing:1.2.1 Remedy bundle;

1.2.2 Claimant’s updated schedule of loss and Respondent’s counter schedule of loss;

1.2.3 Remedy witness statements from Dr Kamutasa, Dr Williams, Ms Manilal for the Respondent, and from the Claimant;

1.2.4 We also had access to the bundle and evidence from the first hearing if needed.

1.3 We heard evidence from the witnesses and submissions from the parties. We endeavoured to give an oral Judgment with reasons but due to the time consuming mathematical calculations that we had to undertake we were ultimately not able to do so and therefore reserved our decision to be delivered in writing.

[2]Unfair Dismissal Basic Award2.1 The Claimant seeks the sum of £16,790.50. The Respondent says the award should be £16,559.00.

2.2 The cap on a week’s pay at the time was £571.00 as set out in the parties’ schedules. There is also a cap on continuous service of 20 years: section 119(3) Employment Rights Act 1996 (“ERA”).

2.3 The Claimant is entitled to 1.5 weeks’ pay for the of 41 and over at the beginning of the year and 1 week’s pay under that age. The Claimant is therefore entitled to 19 years at 1.5 weeks totalling £16,273.50. She is also entitled to 1 week at £571.00 (totalling the capped 20 years). The total basic award is therefore £16,844.50. This sum is different to both parties’ calculation but we are obliged under the Employment Rights Act 1996 to award the correct amount.

[3]Financial Losses – the legal principles3.1 The Respondent asserts that the Claimant’s financial losses should be assessed under the unfair dismissal compensatory award and ultimately subject to a cap at 52 weeks’ gross pay that applies under ERA. The Claimant seeks an uncapped amount as compensation for discrimination/harassment/victimisation under the Equality Act 2010.

3.2 Section 124 Equality Act 2010 sets out the remedies the tribunal can award for a successful claim. These include an order that the Respondent pays compensation to the Claimant, including compensation for injury to feelings. Awards of compensation should apply the principles that would apply in a civil claim brought in tort, as discrimination is a statutory tort.

3.3 The discrimination /victimisation/harassment complaints were brought as discrimination /victimisation/harassment detriment complaints; there was no claim brought for a discriminatory/victimisation/harassment constructive dismissal under the Equality Act. However, this does not mean that the Claimant cannot seek to recover financial losses flowing from acts of discrimination /victimisation/harassment found provided causation principles are satisfied. For example, it was said in McLeary v One Housing Group Limited UK EAT 0124 18 0602 that: “An individual who claims that one or more individual acts of discrimination during employment have driven them to resign, may argue, as a matter of ordinary principles of causation of loss, that the discrimination during employment therefore caused the loss of that job and the loss of earnings and so forth that may go with it. Nevertheless, the presence or not of a discriminatory constructive dismissal claim may make a material difference in a case where that claim would be in time, but where a claim or claims which are dated from the last date of the impugned treatment during employment would be out of time.”

3.4 Given the findings on time limits we made in our Liability Judgment, the second part of the above quotation (setting out circumstances in which there may need to be a discriminatory constructive dismissal claim) does not apply, and in theory the Claimant can seek to recover her financial losses as part of her award under the Equality Act despite the absence of a discriminatory/victimisation/harassment constructive dismissal complaint and provided causation principles are satisfied.

3.5 As already stated, under Section 124 of the Equality Act compensation must be calculated in the same way as damages in tort. The aim is, as best as money can do it, to put the Claimant in the position she would have been in but for the unlawful conduct: Ministry of Defence v Cannock and ors

1994 ICR 918

. This involves looking at the position the Claimant would have been in had the discrimination not occurred.

3.6 Other principles when assessing loss include:3.6.1 Causation and remoteness limit the damages available to a claimant: only those losses caused by the unlawful conduct will be recoverable. However, any loss proved to flow directly from the discriminatory act will be recoverable: Essa v Laing

[2004] ICR 746

;

3.6.2 It is necessary for the tribunal to consider and, if appropriate, take into account the chance that the employer might still have caused the same damage lawfully if it had not discriminated: Abbey National plc v. Chagger

[2010] ICR 397

;

3.6.3 A claimant is expected to take reasonable steps to mitigate the losses they suffered as a result of the unlawful conduct. The burden is on the respondent to prove that there had been a failure to mitigate such losses: Fyfe v Scientific Furnishing Ltd

[1989] IRLR 331

[4]Financial losses – can we and should we award them under the Equality Act or Employment Rights Act?4.1 In the Liability Judgment we found there was an, in time, continuing act of discrimination/victimisation/harassment compromising GW’s comments about the Claimant, the failure to take action in January 2022 and the failure to recognise the grievance was in part upheld and take action in November 2022. The Claimant had received the grievance outcome on 17 November 2022. The Claimant resigned on 12 December 2022. Her resignation letter referred to her disappointment with the grievance outcome and the lack of action in respect of GW’s conduct. When assessing the constructive unfair dismissal claim we found that the acts and omissions in question, as a matter of fact, were effective reasons for the Claimant’s resignation.

4.2 In our judgement the Claimant’s resignation and the financial losses that flowed from that resignation are losses that flow directly from the discriminatory /harassment/victimisation acts found. In our judgement the discrimination /harassment/victimisation found to have occurred caused the Claimant’s resignation and the loss of her job and the financial losses thereafter. The Claimant is entitled to seek to recover those losses under Section 124 of the Equality Act and we consider it is appropriate to award those losses under that Section so that the Claimant, in so far as it is reasonable to do so, is best put back in the situation she would have been in had the acts of discrimination/harassment/victimisation not occurred.

[5]Assessment of past financial losses to remedy hearing date Notice Pay Period5.1 We take first the notice pay period. This was a period of 12 weeks from 12 December 2022 to 6 March 2023. The Claimant’s net weekly pay, taking the figure in the Respondent’s counter schedule was £553.38. The Claimant also lost the value of employer pension contributions at £22.50 a week (taken from the Claimant’s schedule).

5.2 12 x £553.38 = £6640.56 (12 weeks of net pay).12 x 22.50 = £270.00 (12 weeks of employer’s pension contributions). From that we have to deduct ESA received in the period. Taking the figures from the Claimant’s ESA schedule in the period (20/02/23 to 01/03/23)by our the Claimant received £618.84.

5.3 Adding the net weekly pay and the employer’s pension contributions and then deducting ESA gives the net loss for the notice pay period at £6291.72 Loss of Statutory Rights

5.4 We award the agreed sum of £500.00. Other Past financial losses

5.5 We have to decide what period of loss to award for. The Claimant seeks her losses to the date of the remedy hearing and future losses for a further year. The Respondent argues that:5.5.1 Even without the acts of discrimination/harassment/victimisation the Claimant would have left employment in any event because she was already struggling in the work place and there had been previous incidents when she had threatened to resign;

5.5.2 Alternatively the Claimant would have faced action against her under capability proceedings which would have brought her employment to an end;

5.5.3 The Claimant’s medical records do not support the Claimant’s case as to the extent of her anxiety and its impact on the Claimant’s ability to mitigate her losses and secure new employment and there are more jobs out there the Claimant could reasonably have applied for and secured;

5.5.4 The Respondent argues the Claimant’s employment would therefore have ended within some 3 to 6 months in any event and moreover the Claimant would have been able to mitigate her losses within 6 months. So either way the Respondent argues the very maximum period for losses after the date of termination of employment would be 6 months. The impact on the Claimant /mitigation of loss

5.6 On the issue of mitigation, the Claimant’s position is that due to the impact of discrimination /victimisation/harassment on her psychological health and wellbeing, she was too unwell to look for work and applied for Employment Support Allowance. She was placed in the Support Group due to her health issues. She says that being in the ESA support group meant the DWP did not require her to look for work because she was considered too unwell to do so, but she did, nonetheless on several occasions have a go at finding work. She says that when she then got rejections it reinforced her feelings of inadequacy and further eroded her confidence. She said she had considered therapeutic work such as working in a small café/baking hence obtaining some food hygiene qualifications (see below). In her schedule of loss the Claimant seeks her financial losses from her resignation to the date of the remedy hearing and then a further 12 months from the remedy hearing to fully mitigate her losses.

5.7 The GP records show attendances (there are other attendances for other conditions not listed below): 03/03/2022 An entry for a telephone conversation where the Claimant was asked to come in as she was severely distressed. There is then an entry for a face to face consultation for stress at work to do with other staff, getting her down, stress, tired and unable to cope. The entry refers to a serious breach of confidentiality with ongoing referrals for investigations and that the Claimant had not slept for 2 weeks, was tearful and never felt like that in 21 years service. A Med 3 was issued as not fit for work due to stress at work from 3 March 2022 to 4 April 2022. The Claimant was given advice to rest, relax and have time off. The Claimant was prescribed Zopiclone (a medication for insomnia) 14/03/2022 Prescription given for Diazepam 05/05/2022 Issuing of a Med 3 as not fit for work due to stress at work from 5 April 2022 to 6 May 2022 22/04/2022 An entry recording a face to face consultation and recording that the Claimant was a practice manager having issues with other staff, leading to feeling increasingly anxious and the day before had felt chest pain. The Claimant was recorded as being tearful. She was going to attempt to resolve her stress through continuing to speak to her solicitor and regulatory bodies about resolution 28/04/2022 Issuing of a prescription for Zopiclone 06/05/2022 Issuing of a Med 3 as not fit for work due to stress at work 6 May 2022 to 5 June 2022 18/5/2022 An entry about head pain but also a stress related problem and that the Claimant had been going through a lot of stress that was work related and was struggling to sleep and requesting sleeping tablets 06/06/2022 Issuing of a Med 3 for the period 6 June 2022 to 5 July 2022 as not fit for work due to stress at work 04/07/2022 Record of a telephone call with the Claimant about stress at work and the giving of a fit note for 4 July to 5 September due to stress at work 05/09/2022 Issuing of a Med 3 5 September to 10 October 2022 as not fit for work due to stress at work 16/09/2022 An entry recording a telephone consultation where the Claimant was recorded as being very upset and stress at work. She had stopped Fluoxetine 3 weeks ago and her anxiety was high but not suicidal. There was a plan to try Mirtazpine and the Claimant was also prescribed Diazepam 11/10/2022 Issuing of a Med 3 from 11 October to 1 November 2022 at not fit for work due to stress at work 28/10/2022 Issuing of a Med 3 for 28 October 2022 to 30 November 2022 as not fit for work due to stress at work 02/11/2022 An entry for a face to face consultation recording the Claimant complaining of chest discomfort, and that she had been off work with stress, low mood, fleeting suicidal thoughts, no intent or plans, and excessive alcohol consumption with the Claimant asking for help to stop. She had reduced her Fluoxetine dosage herself over 2 months. On examination she was tearful and her Fluoxetine dosage was increased 30/11/2022 An administrative entry about the issuing of a Med3 from 30 November 2022 to 2 January 2023 as not fit for work due to stress at work. 03/01/2023 An administration note recording stress at work and a Med 3 being issued as not fit for work through to 28 February 2023 26/01/2023 An administrative entry recording that Fluoxetine had been stopped by the Claimant last year. One doctor had added Mirtazapine and another increased Fluoxetine to 2 a day but had not altered the directions on the medication screen. It was noted the Claimant had not requested Fluoxetine that month because she had an extra supply because of the dose change not having been processed. There needed to be a chest pain follow up. 01/02/2023 An entry about a face to face consultation for atypical chest pain that was to be assessed further but includes reference to the Claimant feeling severe anxiety, chest tightness and shortness of breath on exertion, chest pain that had no pattern to it, ongoing stressors including the Claimant going to a tribunal about work. On examination the Claimant was anxious. She was to be referred to the substance misuse service 09/02/2023 An entry making a referral to the Community Drugs & Alcohol team 14/06/2023 An entry about asking the Claimant’s consent for a referral to the Community Drugs & Alcohol team 13/06/2023 An entry recording that at a chest clinic appointment on 25 May 2023 the Claimant was eager to seek help in reducing her alcohol intake and also referred to a stress related problem. 07/02/2024 An entry about a face to face consultation that includes “was a practice manager at Gardden road – felt victimised as a doctor and nurse there apparently shared private information about her with other staff members. Has not returned to work since Christmas 21. Formally resigned a year later, sought legal advice and currently awaiting a hearing.” The entry also refers to the Claimant having a long history of problematic alcohol consumptions that was getting worse, anxiety, low mood, and checking behaviours. The advice given was that alcohol consumption had to be addressed first as a major depressant. 20/02/2024 Referral to community drug and alcohol team 31/10/2024 An entry saying stress related to her last job, she wants a supporting letter. There are various repeat prescriptions including Fluoxetine, an antidepressant

5.8 The letter from the Claimant’s GP of 1 November 2024 says that the Claimant had been seen and treated for anxiety and depression and: “Unfortunately, due to her being subject of leaked text messages at her place of work, and these having been shared with her ex-colleagues and whoever else may be involved, this has exacerbated her symptoms and she is struggling with a deterioration in her mental health. Mrs Clark has been unable to work since her resignation from her past job, and relies on her medications below.” The GP then set out the Claimant’s prescriptions. The GP wrote “In my opinion, Mrs Clark will be unable to reduce any of her medications for the foreseeable future. She is keen to try to get herself into a good state of health, but she is troubled by alcohol addition, and she has agreed to engage with her services that she has previously been referred to. Mrs Clark has told me that she is trying to engage in interests to improve her state of mind, one being cooking, and she has completed a Food Safety Course which hopefully in time and with support she can put these skills to use and perhaps gain employment.”

5.9 In terms of searches for work the position includes: 23 January 2023 Letter from DWP saying from 14 January 2023 the Claimant’s ESA would be £83.88 a week because of a decision about capability for work. The Claimant had been placed in the Support Group. From 13 April 2023 she would receive £95.78 a week. The letter says “You meet the eligibility criteria for Support Group. This means you are not required to take part in any work related activity, although you can volunteer by contacting a Personal Advisor.” 10 October 2023 Application for Assistant Practice Manager Lache Health Centre 15 October 2023

• Application to be a Registered Manager for Crystal Care Solutions Ltd

• Application to be a Practice Manager at PMA Ltd 21 October 2023 Application for Practice Manager at High Street Medical Practice unsuccessful 28 October 2023 Application for Practice Manager at Rodericks Dental Partners 29 October 2023 Application for Contact Centre Operations Manager at Confidential unsuccessful 3 November 2023 Application for Patient Liaison Consultant at Cheshire Cosmetic Surgery 13 November 2023 Application for Area Manager – Children and Young People’s Services at Liquid Personnel 15 November 2023 Application for Operations Manager at Phoenix Health Limited (told unsuccessful on 30 November 2023) 19 November 2023 Application for Service Manager – Learning Disabilities at Castell Ventures – unsuccessful 23 November 2023

• Application for Dental Practice and Business Development Manager at Allport Dental Practice (told unsuccessful on 28 November)

• Application for Practice Manager at Aspire Locums NWltd (told unsuccessful on 26 November)

• Application for Practice Manager at MyDentist 27 November 2023

• Application for Community Engagement Officer and Activities Co-ordinator at Derwen College (told unsuccessful on 1 December 2023)

• Application for Youth Engagement Coordinator at Youth Fed (unsuccessful) 28 November 2023 Application for Senior Clinical Practice Manager (Forensic and Learning Disabilities) at Community Integrated Care 19 December 2023 Application for Deputy Manager Minster Care Group 23 December 2023 Application for HR Office Administrator at Ifor Williams Trailers Ltd unsuccessful 30 December 2023

• Application for Transport Planner Manager at Ambipar Site Services Ltd

• Application for Narrowboat Hire Fleet Manager at Anglo Welsh Waterway Holidays (told unsuccessful on 5 January 2024) 3 January 2024

• Application for Patient Care Coordinator at Saltney Dental Practice

• Application for Housing Officer at Pinnacle Group Ltd

• Application for Sustainable Fashion E Commerce Role at Preworn Ltd 10 January 2024 Application for HR officer at Maelor Foods Ltd (told unsuccessful on 14 January) 28 January 2024 Application for Office Administrator at Brynkinalt Hall unsuccessful 23 September 2024

• Application for Cook Supervisor at Caffi Wylfa

• Application for Cook at Banana Bens Ltd 23 September 2024 Claimant obtains Level 2 Health and Safety certificate for Food Hygiene 27 September 2024

• Application for Greggs Team Leader at Asda Express

• Application for Office Manager at Wrexham AFC

• Application for Executive Assistant at Wrexham AFC

• Application for Personnel and Operations Secretary at Ellesmere College

• Application for Food & Beverage Supervisor at The Grosvenor Hotel & Spa 7 October 2024

• Application for Transitions Coordinator at Bersham Schools Ltd

• Application for Nursery Cook at Dandelions Day Nursery 8 October 2024 Claimant obtains Level 2 Food Hygiene & Safety (Catering) certificate 9 October 2024 Application for On Call Coordinator at Nos Da Healthcare Ltd 20 October 2024 Application for Part time weekend cook and shop assistant at Llandegla Community Shope and Café 25 October 2024 Application for HR Manager Wrexham AFC 31 October 2024

• Application for Nursery Cook at Guilden Sutton Day Nursery

• Application for Nursery Chef at Partou (unsuccessful)

• Application for Restaurant and Bar Assistant at Rowton Hall Hotel and Spa

• Application for Cook at Tilly’s bunbury

5.10 There are therefore two periods of job searching October 2023 to January 2024 and then September and October 2024.

5.11 The Respondent, as already set out above, argues that the Claimant was fit for work and to reasonably find work and including some sample job adverts. They point in particular to the lack of GP entries, particularly in 2023. The Claimant said in evidence she was managing her self and on medication. The Respondent says her condition cannot have been that serious.

5.12 We have given the state of the Claimant’s health, and therefore her ability to work careful consideration. Our conclusions are as follows. Before the discriminatory /victimisation/harassment acts in question the Claimant already had difficulties with her mental health, associated difficulties with alcohol, and at times it affected her ability to physically attend the workplace and affected the performance of some of her duties. But that was something that the Respondent, and in particular, CK who was very close to the Claimant, tolerated and gave the Claimant space and time to do the work that she could. In our judgement, the situation was getting worse with the Claimant’s difficulties in managing FS. When the actions of GW came to light it had a devastating impact on an already vulnerable individual. The Claimant was never able to physically return to work the main GP surgery building. The Claimant did some intermittent work duties at home until 30 March 2022 (despite at times having a Med3 stating she was not fit for work). On 30 March 2022 she was instructed by CK to stop working and concentrate on her recovery. She did not return to work prior to her resignation on 12 December 2022.

5.13 In our judgement, the Claimant has not since that time become well enough to work elsewhere. We have paid careful attention to the GP records. We noted the GP entries, post resignation, in February 2023 and June 2023 and then the gap in time until 7 February 2024. However, we did not conclude that the absence of attendances for the Claimant’s anxiety and depression meant that she had become well or well enough to return to work. Once the Claimant had resigned, she no longer needed to obtain fit notes from her GP. Further by January 2023 she was also in the ESA support group. There was therefore no work or DWP related driver behind the Claimant needing to attend on her GP.

5.14 We consider it likely and find that the Claimant was left unwell and in a partially treated situation that just plateaued. The Claimant was receiving antidepressant medication, but the GP records and GP letter are also instructive in showing that the GP surgery considered that there was a need to engage first in addressing the Claimant’s alcohol consumption. The Claimant did not take that treatment programme forward until around the time of the GP’s letter of November 2024. But we are not in a position to find that the Claimant did not mitigate her losses by not seeking such treatment sooner. We have no expert evidence to say the Claimant reasonably would have been able to do so. Further, from our non medical expert point of view, we suspect it would not reflect the reality that with individuals with anxiety and depression and associated alcohol related difficulties it is not so easy to suddenly engage on such a treatment programme, and that resolving that dynamic is difficult, may not succeed first time and takes time. The Respondent has to “take their victim as they find them.” As previously stated, the Claimant was a vulnerable individual with pre-existing health difficulties. The discriminatory/victimisation/harassment acts culminating in her resignation all impacted on that. Prior to her resignation, and following the acts of discrimination / harassment/ victimisation the Claimant was even more less able to work than she had been before, and she was then unable to work at all. That inability to work continued and in our judgement flowed from the acts of discrimination /victimisation/harassment found, as did the situation with the longer term plateauing of the Claimant’s health and the plateauing of her conditions being only partially treated.

5.15 Our conclusions are supported by the GP records that we do have showing severe anxiety and an effort to refer the Claimant to the substance abuse service in February 2023, and similar entries in June 2023. By February 2024 the picture had not improved with anxiety, low mood and checking behaviours being recorded together with the need to address alcohol consumption. In the letter of 1 November 2024 the GP then confirms that the Claimant was still struggling with a deterioration in her mental health, that she had been unable to work since her resignation, and wrote about the Claimant now having agreed to engage with rehabilitative services. Our conclusions are also supported by the fact the Claimant has been in the ESA Support Group throughout, meaning that she has been assessed by a medical practitioner there as being not fit to undertake in work related activities.

5.16 We did take careful account of the fact that in October 2023 to January 2024 and then in September 2024 and October 2024 there were bursts of activity by the Claimant to look for work. On balance, however we did not conclude that this meant the Claimant was actually fit for work. We consider it more likely that these were bursts when the Claimant decided to have a go. But we do not consider that she would actually have been in a position, even if she could have been successful in an application, to actually sustain a job. She had lost the protective environment she had at the Respondent supported by CK. In this period the Claimant struggled at times to leave her house and go into her local community. She had partially treated anxiety and depression and alcohol difficulties. Even prior to the discrimination /harassment/victimisation in question she had difficulties in always consistently attending the workplace and performing all duties. That situation had been exacerbated by the harassment /victimisation/discrimination. We do not consider it realistic that the Claimant would have been in a position of being able to main regular and good service for a brand new employer, without the protective environment that CK had put in place for her previously. We consider that would also have been the position with a home working job. We therefore do not find that the Claimant has failed to mitigate her losses in the period following her resignation through to the date of the remedy hearing. Should there be a deduction for contingencies?

5.17 It does not necessarily follow that the Claimant is entitled to recover her past financial losses in full. We do have to consider the question of the prospect of, if the discrimination /victimisation/harassment had not occurred, that the Claimant would at some point have ended up in the same position on the labour market in any event.

5.18 Both parties had a tendency in the remedy hearing to make assertions that did not accord with the findings of fact in our Liability Judgment and, as we observed at the hearing, those findings of fact are binding. The Claimant asserted, for example, that there were never any difficulties with her performance or attendance in the workplace. That may be her perspective, but it is not the finding that we made. For example, at paragraph 3.47 we found that in the period 2019, 2020 and 2021 there were periods when the Claimant, for reasons related to disability, was on sick leave or working from home that was not purely Covid 19 home working and that had consequences in terms of her visibility to staff and times when work fell behind. We found that at those times CK showed flexibility in letting the Claimant work from home or work whatever duties she could managed to allow her time to recuperate.

5.19 At paragraph 3.48 we found that there were times when the Claimant had threatened to leave because she was feeling overwhelmed and it seemed she would recover if given time and space. We referred to a particular example from 2019. At paragraph 3.50 we referred to an email of 28 April 2021 when the Claimant again suggested she was going to leave.

5.20 We also noted the Claimant’s GP record from the summer of 2021 showed her fairly regularly seeking help with work, home and family stressors with a period of sickness absence and a phased return to work and we made a finding of fact that it was likely there had been a similar pattern in previous years. At paragraph 3.49 we made a finding that RB ended up picking up administrative and managerial responsibilities that would otherwise have fallen to the Claimant. We found that, in turn, this affected perceptions in the workplace of the Claimant and her work capabilities and capacity.

5.21 Whilst we do consider, and found at liability stage, that there were concerns genuinely held about the Claimant’s attendance in the workplace and performance of all of her responsibilities, we do not, however, consider there was any realistic prospect that absent the discrimination/victimisation/harassment the Claimant would have been placed on a formal capability procedure resulting in her dismissal. We consider that submission to be wholly unrealistic.

5.22 Our reasoning is as follows. Firstly, concerns about the Claimant dated back several years to at least 2019 and long before the GW material came to light, but there had never been one iota of a suggestion that formal action would be taken against the Claimant. Instead, CK had adopted the strategy of giving the Claimant flexibility and space. We cannot see any likelihood that such an approach by CK was going to change. CK and the Claimant had worked together for a very long time and had a close relationship. We do not consider that CK would have countenanced such action against the Claimant. We also do not consider that anyone else, such as GW, would have had sufficient influence on CK as senior partner to sway him to take such action against the Claimant. Indeed, it is likely that the lack of action by CK, and appreciation that he was not going to take action against the Claimant, was contributing to the festering of gossip in the workplace about the Claimant because there was nowhere else for those involved to take their views. Further, CK also spoke, when giving oral evidence at the Liability hearing how difficult it would have been, if the CTC allegations had come to fruition, to have made a decision to dismiss the Claimant because they had for so long had such a strong friendship. CK thought that way about a situation even though he was personally feeling quite devasted. So again, it runs completely contrary to the notion that CK would have embarked on capability procedures for general attendance/performance concerns when he had taken a completely different strategy for all those years.

5.23 We do, however, consider and find that there was a risk that the Claimant would have decided of her own volition to bring her employment to an end and in the same circumstances of having no job to go to and in the same position on the labour market. She had, in our judgement, prior to the acts of discrimination/ victimisation/ harassment been struggling for a number of years with challenges to her health and family pressures. The Claimant had, as already referred to, had periods of sick leave, or periods of doing some work from home, and was not always performing the full range of practice manager duties with work sometimes falling behind or RB picking up responsibilities. We do not think that this situation was lost on the Claimant at the time, indeed she talked about some of her worries in her contemporaneous emails. We do acknowledge that the Claimant had threatened to resign/retire on previous occasions and had never carried that threat through when given space and time by CK. We also acknowledge that we are assessing what the situation would have been if the acts of discrimination/victimisation/ harassment had not occurred.

5.24 But we do consider that there is a very real chance that the Claimant would have chosen to resign/retire at around the time, or shortly after the point in time, that she did in any event, and in circumstances in which she would likewise be leaving with no other job to go to and leaving without an intention/health capacity to immediately go on and work elsewhere. So a real risk she would end up in the same situation in relation to the labour market in any event. We find this because of the Claimant’s long term struggles with her health, and with family stressors and the impact that was already having on her work capacity. Further, there are the Claimant’s previous threats to resign/retire. Further again, even without the acts of discrimination/victimisation/harassment in question we consider the Claimant was increasingly struggling in work/ with work. The Claimant was finding FS very difficult to deal with over a sustained period of time. Moreover, we consider that the practice was having practice management difficulties that were always going to come to a head. That there were difficulties led to the Royal College of General Practitioners review. The note that GW prepared for the 22 February 2022 meeting also records some of the issues such as out of date contracts of employment, and out of date policies, as well as noting the difficulties caused by lack of practice manager availability/visibility. The Claimant in her own subsequent email referred to developments such as a new time recording and payroll system. Whilst we fully accept that the Claimant’s ability to attend the workplace and do work had been enormously harmed at this point by GW’s comments having come to light. But the point is that these are the kinds of issues that had been there long term before the events of discrimination/ harassment/ victimisation. There were practice management areas in which the practice needed to make changes and move forward that, in our judgement, would always have been the case even if the harassment/discrimination/victimisation had not occurred. They were also practice management issues that were serious enough to come to the attention of the Cluster/Health Board, hence CK’s messages to the Claimant about being under a lot of scrutiny by the Health Board and having a short time frame in work to sort things out.

5.25 Within that context, we do consider that there is a very real chance that the Claimant would have independently reached the conclusion that with health, family life, and the type of changes that needed to happen in work, that it was the right time for her to leave. We do not consider that those pressures would have led to formal capability action against her, for the reasons we have already given. But we do consider there is a very real chance the Claimant would have made that decision to leave of her own volition and that she would have done so without a new job to go so, and she would also then have continued to be out of the labour market for an ongoing period because of her health and family situation. Whilst we have acknowledged the serious impact of the discrimination/harassment/victimisation on the Claimant we still do consider there is a very real risk, because of the history and context we have given, that she would have in any event had her work ability and income ability affected these preexisting stressors and factors. We cannot say that this was an absolute and there is no exact science to such assessments. But we do consider it appropriate and just and equitable to apply a percentage reduction to reflect the real risk that the Claimant could have ended up in a similar position earnings wise in any event. On that basis we consider that but for the acts of discrimination /victimisation /harassment there is a 35% prospect that the Claimant would have ended up leaving at around the time she did and being in the same position in relation to the labour market and therefore the same income situation in any event. Past financial losses – calculation of loss

5.26 Applying these principles, we believe the calculation of loss should be as follows.

5.27 Loss of earnings from 06 March 2023 (i.e. starting from end of the notice period) until calculation date 8 April 2025 = 109 weeks. Net weekly pay = £553.38 x 109 = £60,318.42.

5.28 Lost employer pension contributions £22.50 x 109 = £2452.50.

5.29 Adding the two together gives total net past financial losses of £62,770.92.

5.30 From that we need to deduct ESA received in the period. The Claimant’s ESA table only goes up to 20/11/24 and totals £8093.51 (excluding the period relating to the notice period). We therefore add on a further 10 fortnightly payments of ESA to take us to the calculation date. 10 x 182.34 = £1823.40. Adding that to the ESA figure from the table totals £9916.91

5.31 Deducting that ESA figure from the net loss of earnings and pension contributions gives £52,854.01.

5.32 From that we deduct 35% for contingencies = £34,355.11

[6]Assessment of future loss of earnings6.1 We then have to assess the Claimant’s future loss of earnings. We consider that the 52 weeks that the Claimant seeks is a reasonable period of time. We consider that it is a realistic period of time for the Claimant to engage in her treatment programme, and to look for and find commensurate work. Litigation is often a maintaining factor in ill health and the Tribunal’s industrial jury experience suggests that the ending of litigation often helps people start to move forward and being able to return to work. We consider it is appropriate to continue to apply the same 35% deduction to reflect the risk that the Claimant may have been in this position in the labour market in any event. Our calculations are therefore as follows.

6.2 52 weeks x £553.38 net weekly pay = £28,775.76.

6.3 52 weeks x 22.50 employer pension contributions = £1,170.00. These two elements total £29,945.76.

6.4 Less likely ESA receipts in period: 26 fortnightly payments x 182.34 = £4740.84

6.5 This gives a net loss of £25,204.92 and from that we make the 35% deduction for contingencies = £16,383.21 future loss of earnings.

[7]Injury to feelings and the claim for aggravated damages7.1 We reminded ourselves of the long-established guidance in Prison Service v Johnson

[1997] ICR 275

, that the general principles underlying awards for injury to feelings are as follows:

• Awards for injury to feelings are designed to compensate the injured party fully but not to punish the guilty party;

• An award should not be inflated by feelings of indignation at the guilty party’s conduct;

• Awards should not be so low as to diminish respect for the policy of discrimination legislation. On the other hand, awards should not be so excessive that they might be regarded as untaxed riches;

• Awards should be broadly similar to the range of awards in personal injury cases;

• Tribunals should bear in mind the value in everyday life of the sum they are contemplating;

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

7.2 It was said in Vento v Chief Constable of West Yorkshire Police (No.2)

[2003] IRLR 102

: "It is self-evident that the assessment of compensation for an injury or loss, which is neither physical nor financial presents special problems for the judicial process, which aims to produce results objectively justified by evidence, reason and precedent. Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be an artificial exercise. Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury. In these circumstances an appellate body is not entitled to interfere with the assessment of the employment tribunal simply because it would have awarded more or less than the tribunal has done. It has to be established that the tribunal has acted on a wrong principle of law or has misapprehended the facts or made a wholly erroneous estimate of the loss suffered. Striking the right balance between awarding too much and too little is obviously not easy.”

7.3 The Court of Appeal then set out the bands, which have come to be known as the Vento bands or guidelines:

• The top band, at that time, between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment. Only in the most exceptional case should an award of exceed at that time what was £25,000.

• The middle band of, at that time, between £5,000 and £15,000 which should be used for serious cases, which do not merit an award in the highest band.

• Awards of between (then) £500 and £5,000 for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence.

7.4 Following the invitation of the Court of Appeal in De Souza v Vinci Construction (UK) Ltd

[2017] IRLR 844

these figures are now annually adjusted for inflation through the Presidential Guidance promulgated by the Presidents of Employment Tribunals.

7.5 The Claimant seeks the sum of £49,300 at the top of the upper band. The Respondent says the award should be in the middle band and no more than £15,000. The uprated relevant bands are £9,900 to £29,600 for the middle band. The top band is £29,900 to £49,300.

7.6 The Claimant is also seeking aggravated damages in the sum of £5000.

7.7 Aggravated damages may be awarded where an act of discrimination has been made worse by being done in an exceptionally upsetting way, such as in a highhanded, malicious, insulting or oppressive way; or because of conduct subsequent to the discriminatory act (e.g. where a case is conducted at trial in an unnecessarily offensive manner); HM Land Registry v McGlue,

UKEAT/0435/11

and Commissioner of Police of the Metropolis v Shaw

[2012] ICR 464

7.8 In McGlue it was said: "A Tribunal in examining whether there is a case for aggravated damages has to look first at whether objectively viewed the conduct is capable of being aggravating, that is aggravating the sense of injustice which the individual feels and injuring their feelings still further… Aggravated damages certainly have a proper place and role to fill, but a Tribunal should also be aware and be cautious not to award under the heading "Injury to Feelings" damages for the self same conduct as it then compensates under the heading of "Aggravated Damages". It must be recognised that aggravated damages are not punitive and therefore do not depend upon any sense of outrage by a Tribunal as to the conduct which has occurred."

7.9 In Vento it was emphasised that common sense requires that regard be had to the overall magnitude of the sum total of the awards of compensation for nonpecuniary loss.

7.10 In HM Prison Service v Salmon

[2001] IRLR 425

it was said: "… However, it is also clear that aggravated damages are only awarded on the basis, and to the extent, that the aggravating features have increased the impact of the discriminatory act or conduct on the applicant and thus the injury to his or her feelings: in other words, they form part of the compensatory award and do not constitute a separate, punitive, award…"

7.11 In Base Childrenswear Limited v Otshudi

UKEAT/0267/18

it was again re-stated that it is possible (although it is not the only available approach) to view aggravated damages as part and parcel of an injury to feelings award given the tribunal is compensating for the aggravation of that injury. It was emphasised, following Shaw that aggravated damages are really an aspect of injury to feelings and the tribunal should have regard to the total award to ensure the overall sum is properly compensatory and not excessive. A tribunal is not required to only make one global award, but a tribunal may do so. Either way it is important to have regard to the overall sum awarded and the risk of double recovery.

7.12 We award the sum of £31,000.00 for injury to feelings and do not make a separate award for aggravated damages. This award is at the lower end of the top Vento bracket. We consider this is an appropriate sum to reflect the injury to the Claimant’s feelings caused by the acts of harassment /victimisation/ harassment found. What GW had written about the Claimant when it came in light in December 2021 was devastating for the Claimant. That GW did not intend for the Claimant to see those things does not really affect the position in terms of the impact on the Claimant’s feelings in learning what she believed GW truly thought about her. The Claimant was called a cunt, a narcissistic shithouse, an old knacker and likened to a tumour. Her competence was being questioned and not in any constructive way that an employer should do, but through particularly offensive, discriminatory language. As we set out in our Liability Judgment, underlying GW’s comments were hurtful, hateful age discriminatory and disability influenced views. GW showed no empathy towards the Claimant’s disabling health condition and how this was impacting on the Claimant’s capabilities in the workplace, but instead fixated on the Claimant, looked down on her, and labelled the Claimant as a drug seeker, incompetent and too old for her job. The Claimant was also left with the sense that this was not GW doing this alone; it involved others including the practice accountant.

7.13 What was written about the Claimant was immeasurably hurtful and we described in our Liability Judgment that the Claimant was distraught, upset and devastated and that those feelings increased as the Christmas period went on when the Claimant was more able to the content in and reflect upon it. She had a severe exacerbation of her anxiety and could not stop thinking about the messages. In her email of 31 December 2021 the Claimant described herself as being “torn in half”, that what GW had written had “broken her heart,” she had cried continuously for days and her anxiety was uncontrollable. The Claimant said she was contemplating resigning at the time. GW was of course someone that the Claimant had very much trusted, shown by for example the Claimant’s heart felt plea in the Liability hearing bundle at [175]. .

7.14 The Claimant then started working from home because she simply could not face going into the surgery, and in particular face all of her own staff who would know what it is that GW had said about her. For example, in GW forwarding the email from SR to RB, the Claimant had been ridiculed to a colleague within the Claimant’s own line management. The Claimant felt utterly humiliated and her distress continued.

7.15 Then came what we found to be an act of victimisation, when insufficient action was taken about GW’s conduct at that time. That is also important when it comes to assessing injury to feelings because it meant that the situation continued and festered with the Claimant still being unable to step foot in the building and unable to move on from what she had learned. We wrote in the Liability Judgment that the Claimant was left distraught, unable to return to the workplace, and unable to understand why GW did what she did. By March 2022 the Claimant was still describing herself as heartbroken and she wished GW could understand the devastating it had on her health, and that living with it was impossible for the Claimant. The Claimant was not able to do all of her duties or attend the workplace, with there being a fluid situation about whether she was working or on sick leave, until CK insisted she take sick leave in March 2022. The Claimant was then never well enough to return to work until her resignation and the impact on her health and, in consequence, on the labour market is already set out above. The impact on the Claimant has also resonated further because, living in a small community, she hides away much of the time at home, and is reluctant to go out and about because she fears what people know about and are talking about.

7.16 In the meantime there was the Claimant’s grievance and we found there was further victimisation of the Claimant when the Respondent, despite in reality upholding some complaint, failed to take any action. The impact of earlier events was therefore not remedied but continued and indeed was made worse by the lack of recognition and sense that everything was being swept under the carpet. It further harmed the Claimant’s feelings and the handling of the grievance (on the back of everything else) was a substantial contributor to the Claimant’s decision to ultimately resign.

7.17 The conduct was therefore deeply hurtful and impactful at a personal level in terms of GW, but also at a wider level in respect of the Claimant not being fully supported by CK and therefore GW’s conduct being left unaddressed. The situation and impact on the Claimant was then allowed to fester. The impact also bites deeper again in terms of the wider degree of humiliation of the Claimant in front of her own staff, and her sense of humiliation within her wider community. It the impact has also been felt over a sustained period. It is for all these reasons that we considered that the bottom of the top Vento band and the sum of £31,000 was appropriate.

7.18 In making that award we included within it the aggravating nature of the language and views of GW in terms of the serious impact of that on the Claimant. We did not consider it appropriate to make a separate aggravated damages award because it would be too difficult to separate out/ there would be a risk of double counting because GW’s aggravating conduct is the very language and views that GW expressed that caused the initial injury to feelings.

7.19 The Claimant’s response to the Respondent’s counter schedule of loss seems to include a claim on the basis of the “unreasonable and high-handed conduct of the Respondent during these proceedings” i.e. about the conduct of this litigation. We also do not make an award on this basis. It was never said to us what that conduct was supposed to be and we ourselves make no finding of unreasonable and highhanded conduct of this litigation.

[8]Any other complaints? 8.1 The Claimant confirmed that her claims for unpaid wages prior to the termination date and for unpaid holiday pay had now been paid to her and she did not see any further award in respect of those.

[9]Acas Uplift?9.1 The Claimant is entitled to interest on past losses and a taxation grossing up calculation is required. But before that, the last issue that required a decision from us was the question whether there should be an Acas uplift and, if so, the amount. Any uplift will not apply to the basic award.

9.2 Section 207A(2) TULR(C)A provides that: “If in any proceedings to which this section applies, it appears to the employment tribunal that –

(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employer has failed to comply with that Code in relation to that matter, and

(c) the failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25 per cent.”

9.3 Under paragraph 1 grievances are “concerns, problems or complaints that employees raise with their employers.” Under paragraph 4 of the Code employers and employees should deal with issues promptly and not unreasonably delay meetings, decisions or confirmation of decisions. Under paragraph 33 employers should arrange for a formal meeting to be held without unreasonable delay after a grievance is received. Under paragraph 34 employees should explain their grievance and how it should be resolved. Consideration should be given to adjourning the meeting for any investigation that may be necessary. Paragraph 40 provides that following the meeting the employer should decide what action, if any, to take. The decision should be communicated in writing without unreasonable delay and set out what action the employer intends to take to resolve the grievance

9.4 In this case the Code of Practice applied to the Claimant’s grievance. We find that the Respondent did fail to comply with the Code. In particular, the Claimant’s initial complaints should have been recognised as in reality being a grievance and taken forward. Secondly, in reality the substance of the Claimant’s subsequent formal grievance was upheld and yet the Respondent did not set out any action they intended to take to resolve it. We consider that the failures were unreasonable and that it is just and equitable to increase the compensatory award to the Claimant. We consider that an appropriate figure is 5%.

9.5 We find this because this is not a case in which there was no procedure followed at all. Once the Claimant lodged her formal grievance there was a meeting, an investigation, an outcome, and the right of appeal. We also recognised that the Respondent is a small organisation and that it was the Claimant as practice manager who ordinarily had the skill and the responsibility to drive through such HR issues. She could have, for example, at the time of her initial concerns have been clearer with the Respondent it was a grievance that she wanted taking forward under a formal process. But we also recognise the responsibility ultimately rests with the Respondent who had access to Bright HR and the wider NHS family. We also considered it important to take a step back and look at the impact of the Acas uplift in terms of the whole award and considered in the context of all these points, that 5% was just and equitable.

[10]Totals, Adjustments and Interest10.1 The impact of the Acas uplift is as follows: Basic award Remains at £16844.50 - no uplift possible Notice pay £6291.72 plus 5% uplift £6606.31 (+£314.59) Past Financial loss other than notice pay = £36597.87 (£34,355.11 pay and pension loss + £500 loss of statutory rights) = £34855.11 plus 5% uplift (+£1742.76) = Future financial loss £16,383.21 plus 5% £17202.37 uplift (+£819.16) Non financial loss £31,000.00 plus 5% £32,550.00 uplift (+£1550)

10.2 Interest on past financial losses is awarded at the midpoint between the date of the act of discrimination and the date of the calculation of the award. The midpoint between 6 March 2021 and 8 April 2025 is 1494 days divided by 2 = 747 days which gives a mid point date of 23 March 2023.

10.3 23 March 2023 to 8 April 2025. Interest is due on on £6606.31 and £36597.87 and so is due on the total sum of £43,204.18. Interest at 8% per annum for the period = £7073.65.

10.4 Interest on injury to feelings is awarded from date of the act of discrimination until the calculation date at 8%pa. The interest calculation on £32,550.00 is therefore £10,658.56.

10.5 The figures prior to grossing up for tax purposes are therefore: Basic award £16844.50 Notice pay (adjusted) £6606.31 Other past financial loss (adjusted) £36597.87 Future financial loss (adjusted) £17202.37 Non financial loss (adjusted) £32550.00 Interest on past financial loss £7073.65 Interest on injury to feelings £10658.56 TOTAL £127,533.26

10.6 There is then a need to do a grossing up calculation because the above are the Claimant’s net losses but some of the award is taxable. In particular the Basic award £16,844.50; Notice pay £6606.31; financial losses [£36,597.87 + £17202.37 + £7073.65] £60,873.89 are, as we understand it, taxable. The total taxable elements are: £84,324.70. We presume the injury to feelings award and interest on it will not be taxable as the award is for pre-dismissal injury to feelings.

10.7 There should also be a tax free element £30,000 as compensation for loss of office. This leaves to be grossed up £54,324.70. Grossing up Calculation

10.8 The Claimant will receive the award in the current tax year. The tax year April 2025/2026 tax rates are:

• Personal allowance £12,570;

• Basic rate 20% on £12571 to £50,270 so the next £37,699 of income is taxed at 20%;

• Higher rate 40% on £50,271 to £125,140

• Additional rate 5% on over £125,140

10.9 We presume the Claimant will not have any other taxable income in the current tax year. If so, £12,570 of the £54,324.70 will also be tax free as falling within the personal allowance. A further £37699 of that is then taxed at 20% = £7539.80 tax at the basic rate.

10.10 This leaves the net sum of £11,595.50 that needs to be grossed up at the 40% rate. That gives a tax figure of £7730.33 at the 40% rate. Adding the two tax figures together, the total additional sum to be added to the award totals £15,270.13.

10.11 The resulting tax position can be demonstrated as follows: Total award £142,803.39 Of that £32,550.00 injury to feelings Leaving £99,594.83 potentially taxable and £10,658.56 interest on injury to feelings is tax free. Less £30,000 tax free allowance Leaving £69594.83 as taxable Less personal allowance £12,570 Leaving £57024.83 to be taxed £37,699 of the remainder will be taxed Leaving £19.325.83 to be taxed at 40% at 20% gives £7539.80 tax at 20% rate gives £7730.33 tax at 40% rate Total tax grossing up therefore £15,270.13.

[12]Final Totals12.1 We therefore award the Claimant:

• Basic award £16,844.50

• Notice pay £6606.31 (including 5% Acas uplift)

• Other financial losses £60,873.89 (including 5% Acas uplift and interest)

• £32,550.00 injury to feelings (including 5% Acas uplift)

• £10,658.56 interest on injury to feelings

• £15,270.13 grossing up for tax purposes to be added to award TOTAL award gross £142,803.39

12.2 This is a grossed up amount that is payable to the Claimant meaning that she will be responsible for the tax due with the intention that once the tax is paid she ends up with the right sum of money in her hands to compensate her for her losses as found.

12.3 As a tribunal we have had to undertake some complicated mathematical calculations. Often these are left to the parties to agree but we did not consider it realistic in this case that the parties would be able to do so, and therefore we have done our best. If a party considers our “maths” is wrong then they will have the right to apply for reconsideration of the Judgment. They should discuss that with the other party first to see if agreement can be reached. To be clear this is not whatsoever an invitation to make applications for reconsideration of the principles that underlie our decision. Our decision and the reasons have been given. We are simply acknowledging that there is always a risk there could be a “slip” with the maths. 12.3 As we have awarded the Claimant’s financial losses under the Equality Act the recoupment provisions do not apply. Approved by: