Mrs M Caroll-Cliffe v Pembrey and Burry Port Town Council: 1600580/2019

EMPLOYMENT TRIBUNALS

Case No 1600580/2019

Between

Mrs M Caroll-CliffeClaimant

Pembrey and Burry Port Town CouncilRespondent

Before

Employment Judge A Frazer

Mr J Davies for claimant

Mr D Bunting for respondent

Date 7 February 2023

REASONS

[1]The Claimant was employed by the Respondent as a Town Clerk from 1st January 2013 until her resignation without notice on 12th February 2019. She lodged an ET1 on 3rd May 2019, bringing claims for whistleblowing detriment, automatically unfair dismissal under s.103A of the Employment Rights Act 1996, unfair (constructive) dismissal, wrongful dismissal and equal pay (equal value). At paragraph 54 the Claimant asserted that she and her comparator(s) were employed by associated employers and that the comparators were employed by Carmarthenshire County Council (hereinafter ‘CCC’). The Issue

[2]This is a decision on a preliminary issue following a direction given by EJ Davies on 22nd November 2019 that there be a preliminary hearing to determine the following issue:

[1]Was CCC an associated employer of the Respondent in accordance with s.79(4) of the Equality Act 2010 including whether:a. One is a company of which the other (directly and indirectly) has control pursuant to s.79(9)(a) and/or

b. Both are companies of which a third person (directly or indirectly) has control, pursuant to s.79(9)(b)?

[2]Were there common terms at CCC and the Respondent, in accordance with s.79(4)(c) of the Equality Act 2010?

[3]Were the Claimant’s and her intended comparator’s terms and conditions attributable to a single source, pursuant to Article 157 of the TFEU, that was responsible and could remedy the pay disparity? The Hearing 3. For the hearing I had a joint bundle of documents running to 369 pages; a witness statement for the Claimant; a witness statement for Michael Theodoulou of the Respondent and a witness statement for Paul Thomas of CCC. I had skeleton arguments from both Counsel. I was provided with the following authorities for which I am grateful: Scullard v Knowles

[1996] ICR 399

EAT; Gardiner v London Borough of Merton

[1980] IRLR 472

; Lawrence and Others v Regent Office Care Ltd and Others

[2003] ICR 1092

and Fox Cross Claimants v Glasgow City Council

[2013] ICR 954

The Hearing

[4]I heard oral evidence from the Claimant, Mr Theodoulou and Paul Thomas. I heard oral closing submissions from both Counsel and I reserved my decision. Respondent’s Submissions

[5]Mr Bunting submitted that in order for s.79(4) to ‘bite’ the Claimant would need to satisfy all three subsections as they are conjunctive. That would mean that in order for the ‘common terms’ subsection to apply, the comparator must be employed by the Claimant’s employer or by an associate of the Claimant’s employer. Having regard to Gardiner the doctrine of associated employers can only apply where one of the employers is a company. While in Glasgow CC v Unison

[2014] IRLR 532

CS the definition of company was expanded to include limited liability partnerships, there was no authority for the proposition that the definition could now include public bodies, local government bodies and/or statutory bodies corporate. If the extension is limited by economic purpose, the organisations in this case exist for entirely different reasons. CCC cannot in law be an associated employer of the Respondent in accordance with s.79(4)(a) of the Equality Act 2010. CCC does not have direct or indirect control over the Respondent. CCC provided advice and the Respondent made the decisions. It largely followed Carmarthen’s advice. The situation can be compared to a barrister advising clients: the barrister advises the clients but it is ultimately their decision as to whether to take the advice or not. The Claimant’s and her intended comparator’s terms and conditions are not attributable to a single source, pursuant to Article 157 of TFEU, that was responsible for and could remedy the pay disaparity. The claimant’s claim of equal pay should therefore be struck out. In Hesly v Fair Employment Agency

[1989] IRLR 106

NIAC it was held that a statutory body corporate did not fall within the definition. There was a lack of evidence of common terms. Even if there were common terms, the Respondent was not a company. It was the policy of the Respondent to adopt the CCC process of job evaluation. This was effectively outsourced. Matters would be discussed at the Civic Governance and Personnel Committee. Carmarthenshire did not have any veto over the powers of the Respondent. The Respondent also obtained advice from Ellis Whittam and One Voice Wales. The Respondent was given a handbook but there was no suggestion that it would be binding. The SPC Greater London was not a collective agreement; it was just a scheme that was a means for the Respondent not to have to invent its own pay scales. The Respondent used a third party pay structure because it was convenient. CCC have no power to make any decisions as to the Claimant’s employment. All decisions had to be made by the Respondent. It had no power to restore equal treatment in a single source context. Claimant’s Submissions

[6]On behalf of the Claimant it was submitted that ‘company’ should be interpreted to include the Respondent and CCC and that CCC had indirect control of the Respondent in respect of decisions relating to the evaluation of pay. In Fox Cross v Glasgow City Council a ‘company’ does not have to meet the definition of ‘company’ in the Companies Act. The expression is capable of including a body and association of persons formed together for some common purpose. The relevant statutory provision is an anti-discrimination measure and so should be construed purposively. There did not necessarily have to be a common economic purpose: it was enough for the Respondent and CCC to have been formed for some economic purpose. In Scullard v Knowles the EAT rejected the Tribunal’s finding that a regional council could not amount to a company just because it did not take a particular form. The reality of the situation was that CCC told the Respondent what to pay their staff. The correspondence does not indicate that the Respondent was outsourcing the evaluation process. There were no ‘terms of engagement’ as such. Mr Thomas and his staff were telling the Respondent what to pay, however there were insufficient records of this. The Claimant had been asking for documents and evaluation papers but none were forthcoming. There was no written report even after three years. The evidence should therefore be treated with some circumspection. There was evidence of IT monitoring which indicated that there was control by CCC. Monitoring must mean that they had some access and control over the Council. There were common terms in the form of NJC. There was no difference in terms. As for single source, if it were the case that CCC were telling the Respondent what to pay, they would also have the power to remedy any pay disparity. CCC had effectively stepped into the Respondent’s shoes in terms of setting pay. There was no evidence of decisions being made by sub-committees.

The Law

[7]The relevant provision is at s.79 Equality Act 2010 which I set out in full as follows: (1)This section applies for the purposes of this Chapter. (2)If A is employed, B is a comparator if subsection (3) or (4) applies. (3)This subsection applies if— (a)B is employed by A's employer or by an associate of A's employer, and (b)A and B work at the same establishment. (4)This subsection applies if— (a)B is employed by A's employer or an associate of A's employer, (b)B works at an establishment other than the one at which A works, and (c)common terms apply at the establishments (either generally or as between A and B). (5)If A holds a personal or public office, B is a comparator if— (a)B holds a personal or public office, and (b)the person responsible for paying A is also responsible for paying B. (6)If A is a relevant member of the House of Commons staff, B is a comparator if— (a)B is employed by the person who is A's employer under subsection (6) of section 195 of the Employment Rights Act 1996, or (b)if subsection (7) of that section applies in A's case, B is employed by the person who is A's employer under that subsection. (7)If A is a relevant member of the House of Lords staff, B is a comparator if B is also a relevant member of the House of Lords staff. (8)Section 42 does not apply to this Chapter; accordingly, for the purposes of this Chapter only, holding the office of constable is to be treated as holding a personal office. (9)For the purposes of this section, employers are associated if— (a)one is a company of which the other (directly or indirectly) has control, or (b)both are companies of which a third person (directly or indirectly) has control.

Findings

[8]The Claimant’s case is that the Respondent relied on CCC’s policies for its own staff in relation to sickness, pay entitlement and holidays. CCC set the grades and resulting salaries for employees. The upshot was that in effect the Town Council’s staff were under control of CCC. In her evidence the Claimant stated that there have been members of staff and Councillors, such as Pat Jones, who have been simultaneously employed by the Respondent and CCC, such is the relationship between the two authorities. The Respondent’s case is that it sourced advice from CCC on matters such as HR and job evaluations but that ultimately it had full power over the decisions that it made over staff and matters such as pay, which were made at committee level. It then raised the money for salaries through its precept. The CCC’s case is that it had no control over the Respondent which was an entirely separate body corporate set up under different legislation and with a different political constitution.

[9]The Respondent is a town council and therefore a statutory body corporate. The statutory sources for the Respondent’s powers are found at page 243 of the bundle. Mr Theodophoulous stated under cross-examination that this was not exhaustive. The Town Council is controlled by Plaid. Only one of the eighteen councillors is a member of Plaid. At least four of the eighteen Councillors are also County Councillors. The Respondent carries out its functions by electing standing committees at its annual meeting and delegates power to them to deal with specific matters. Decisions on matters such as staff and pay and conditions are taken by resolution voted on by a majority of Town Councillors. The Respondent has no centralised HR function. Any revenue is raised by precept and by the hiring out of owned buildings. The Finance, Governance and Personnel Committee manages the Council’s financial policies and procedures and makes recommendations to the Council in terms of the annual budget and the setting of precepts. It is responsible for staff policies and procedures. Any salaries are factored into when the Town Council prepares its budget for the year. This is a means of autonomous selfgovernance which is independent from that of CCC.

[10]In 2014 the Claimant looked into staff’s roles and noticed that there were anomalies. She brought this to a meeting of the Respondent’s Civic Governance and Personnel Committee on 12th February 2015. The Claimant was instructed by Pat Jones, Councillor, to speak to Mr Paul Thomas in his capacity of Head of HR for CCC and to liaise with him about the need for job evaluations for the Respondent’s staff. The Claimant requested that her evaluation be carried out in accordance with the NALC/SLCC National Agreement of Salaries and Conditions of Service of Local Council Clerks in England and Wales 2004. The Respondent determined to adopt the CCC job evaluation process under the Greater London Provincial Council job evalution scheme.

[11]The history behind the use of CCC to carry out job evaluations is as follows. In April 2018 a service level agreement came into existence between the Respondent and CCC to provide HR advice. The background to this was that CCC had been in the business of giving ad hoc advice to a number of town councils over a period of time and Mr Smith formed the view that it was not reasonable for them to continue to do this for free. Before this, there was an informal arrangement whereby the Respondent would approach CCC for advice on an ad hoc basis. The CCC have been carrying out job evaluations for the Respondent since 2006. The Respondent has always used the Greater London Provincial Council job evaluation scheme which had been agreed on a collective basis at CCC as part of the single status agreement. This scheme was used to evaluate the Claimant’s role.

[12]At page 277 of the bundle there is a letter to the Claimant from Councillor John James, Chair of the Respondent’s Civic Governance and Personnel Committee dated 18th April 2017. In it Mr James states that it was the policy of the Respondent to adopt CCC’s job evaluation process and that this had been in place since 2006. The letter goes on to say, ‘Appointed by the Council a subcommittee of the Civic Governance and Personnel Committee has recently carried out a full review of the staff job descriptions deemed necessary for the efficient and smooth running of the Council’s activities and in order to meet its responsibilities. This includes your job description which we attach for your information following due consultation with yourself. Where we deemed it appropriate we took into account the submissions you made and included such changes. The resulting job description defines the role that we, as a properly appointed committee of the Council, wish our Town Clerk to fulfil and is in accordance with our Committee structure and staffing organisation comprising Responsible Finance Officer, Technical Services Officer, Administration Officer and Administrative Officer. It has been evaluated in accordance with the CCC process.’

[13]The Claimant was banded within Grade I of the CCC salary scale points 34 to 38 on a band between £29, 854 and £33, 106. She was on Job Grade 36 with a salary of £31, 288 pro rata to be increased to £33, 106 pro rata Grade 38 from the date of the letter. The Claimant lodged an appeal on 23rd April 2017 (p.279). The Claimant took issue with the process as she had not been involved in it and had not been provided with any documentation. The Claimant requested documentation pertinent to the evaluation and also which had related to any comparisons under the NALC/SLCC National Agreement. She did not receive anything. The Claimant submits that the lack of transparency in effect underlines the association and/or control between the CCC and the Town Council.

[14]Mr Paul Thomas, Assistant Chief Executive of of CCC, gave evidence as to the nature of CCC’s involvement in the the provision of the job evaluations. I accept his evidence. He explained that as the unitary authority, CCC would often be approached by Town Councils to give ad hoc HR advice. If he were ever approached by the Respondent he would meet with members in his own time. As for job evaluations, he stated that it would be the responsibility of the Town Council to specify what the responsibilities were and to come up with a job profile. The job profile is then assessed on the basis of an evaluation sheet which generates a score matched against the pay scale. The evaluation criteria are prescriptive. The CCC use the same process of job evaluation as they used for the Respondent. Mr Thomas stated that it is the choice of the Respondent as to what scheme they wished to use. The Respondent had no obligation to use the scheme that CCC used but did anyway. I accept that. It would be ultra vires for CCC to make any decision on behalf of the Respondent or for the Respondent to delegate its decision-making power to the CCC. There is no evidence that CCC would have any sort of veto on the decision that the Respondent made. I have considered the lack of any paper trail and this is unsatisfactory. However it is clear that the decision as to the Claimant’s salary at p.277 was made by the sub-committee of the Civic Governance and Personnel Committee of the Respondent. Mr Theodopholous’s evidence, which I accept, was that as far as he knew the Respondent always accepted the recommendations but that there were also a number of occasions when recommendations were amended by the Respondent.

[15]In my finding, even if recommendations by the CCC were always accepted by the Respondent it does not follow that the CCC were exercising indirect or direct control over the Respondent. The job evaluations were the outsourcing of a function by the Respondent which was carried out by the CCC in a prescriptive way. The CCC were not making HR decisions for the Respondent or exercising any delegated powers on their behalf. The lack of paperwork is not satisfactory but it does not lead to any necessary inference that CCC were the decision makers as concerns the job evaluation. In addition, it would be fanciful to suggest that just because the Respondent was using CCC as a resource to carry out IT monitoring and payroll, there was somehow some sort of executive influence over the Respondent, whether indirect or otherwise.

[16]The reality was that the Respondent is a small organisation which was looking to the CCC, an organisation with larger resources, for assistance in the discharge of some of its functions whether that was HR advice or IT. There had been a gentleman’s agreement for many years which was recently formalised into a service level agreement. I do not consider that it is relevant that the Respondent also engaged Ellis Whittam and One Voice Wales. The Respondent was free to access different advice separate from the CCC and the lack of exclusivity in the service arrangement underlines the lack of control between CCC and the Respondent. I did not consider that the fact that there were Councillors who acted for both authorities to be a persuasive factor. Their obligations would be to the respective electorates. Pat Jones had instructed the Claimant to contact CCC for the job evaluation because this is the way it job evaluations had always been carried out.

[17]Applying the law to the facts I find as follows. Firstly I take into account the Court of Appeal authority of Gardiner v London Borough of Merton. This holds that local authorities are not associated employers for the purposes of the associated employers provision (in that case it was s.153(4) of the Employment Protection (Consolidation) Act 1978 but it applies to the same provision in the Equality Act 2010). In Fox Cross Claimants v Glasgow City Council the Scottish EAT adopted a broader construction of the word ‘company’ and the following principles can be derived: 1) It cannot be assumed that ‘company’ in s.1(6) of the Equal Pay Act 1970 means limited company; 2) The associated employer provision in s.1(6)(c) was an anti-avoidance measure aimed at an employer setting up a body distinct from itself to which it could transfer employees and avoid its equal pay responsibilities 3) The word ‘company’ in section 1(6) included an association of persons formed for an economic purpose, which might be recognised as a limited liability partnership.

[18]While the Scottish EAT sought to expand the definition into limited liability partnerships, I find that the purpose of the provision is clear. It was enacted in order to prevent employers from setting up corporate mechanisms which would enable them to avoid their obligations. Neither CCC nor the Respondent are bodies which have been formed for an economic purpose. They are local authorities. Gardiner is on point: local authorities are not companies, even taking a broader construction of that word. Limited liability partnerships and companies are similar vehicles with economic purposes. Local authorities are not in the same category. Scullard v Knowles is distinguishable on the basis that there was no control by a third party on the facts of this case.

[19]Therefore, CCC cannot be an associated employer of the Respondent under s.79(4) Equality Act 2010. In any event, as I have found above, CCC does not have any direct of indirect control over the Respondent for the purposes of s.79(9)(b) Equality Act 2010.

[20]Section 79(4) cannot apply since all the subsections are conjunctive. If the Claimant is relying on a comparator who works for CCC then there needs to be an associative relationship in accordance with s.79(4)(a) and I have found that there is not.

[21]There has not been any evidence of a third party having control of CCC or the Respondent further to s.79(9)(b) Equality Act 2010 and therefore there is no association under this subsection.

[22]I come next to Article 157 TFEU. The Claimant did not have a written contract with the Respondent. However, it was only the Respondent who would be able to remedy any pay disparity. There was no evidence of any single source that was responsible for and could remedy any pay disparity as between the Claimant and a comparator at CCC.

[23]In conclusion therefore all three preliminary questions as set out under ‘The Issue’ above must be answered in the negative.

Findings of fact

[24]On 9 January 2017 [411 – 414] the Civic Committee reported that further individual staff meetings were needed for staff feedback on the job descriptions. Further information would then be needed from Mr Thomas on grades/salaries and a further meeting with him. The minutes say “If Cllr John James is unable to facilitate such a meeting swiftly, then alternatively, the job descriptions are to be sent to Mr Thomas for him to provide grades. Cllr Ken Edwards indicated that once members of staff had agreed new job descriptions, then any potential increases in salary would be payable from that date. Therefore, back pay may be payable, although figures are unknown as yet.”

[25]The claimant was due to meet the Job Evaluation Committee again on 17 January 2017. She prepared a briefing pack in advance including a proposed revised job description and a job evaluation assessment for her role using the profiling in the NALC Agreement. In her covering letter [415 – 416 and A47 to A77] the claimant drew attention to the fact that nearly 2 years had elapsed since the respondent had agreed the need to conduct a full evaluation of staff roles. She said that the process of asking Mr Thomas to formulate a score based on her job description was not accepted practice for a Clerk. She again emphasised that from her perspective the NALC Agreement should be used and asked them to reconsider the basis of the evaluation of her role. She requested a response by 31 January 2017 and also raised the prospect of the SLCC being requested to complete the job evaluation process. Her own evaluation said she considered she should be on SCP 52 – 55. At a Civic Committee meeting on 13 February 2017 [417 – 420] it was reported that the Job Evaluation Committee were due to meet again with the claimant. The minutes also note that the claimant could continue to authorise up to 10 hours a week overtime for the TSO, Mr Fox, on an ongoing temporary basis, but that he needed to provide an estimate in advance to the claimant for her to authorise and that his hours would be reviewed by the Committee on a monthly basis. Mr Fox had been present at the Civic Committee meeting for parts of it.

[26]On 15 February 2017 the Job Evaluation Committee were having meetings with the office staff about the job evaluation process. The claimant thought she was be called to a similar meeting but instead Councillor James and Councillor Edwards told her she would not be having a meeting. She was told that instead a written response was being prepared to the detailed points she had raised in her letter of 16 January. She was told there would then be another meeting after that.

[27]The claimant says that around this time there was a change in Mr Fox’s attitude and behaviour towards her. She says that he started to show a lack of respect and started to send rude and undermining emails. On 16 February 2017 the claimant emailed Mr Fox about the situation regarding overtime pay [422-423]. The claimant had told Mr Fox the position about overtime, but he been back to speak with the Councillors on the Job Evaluation Committee. Mr Fox had then told the claimant they had said he could work as many hours as necessary provided a note was kept. The claimant said in her email that she had discussed it again with Councillor James and that the claimant’s position was correct. Her email said she had agreed with Councillor James she would put it in an email for clarity. She copied in Councillors James, Edwards, Hedley-Jones and Owens. She also spoke to Mr Fox about it. Mr Fox’s response is at [421-422] where he kept the Councillors copied into the exchange and asked in a somewhat tetchy way what format he should record his work in. He also asked about receiving a contract of employment, the holiday procedure, a backlog of his pay and said there was an absence of formal staff meetings. The claimant responded [425-426] on 2 March 2017 saying, amongst other things, that she felt they met informally most days, but offering to hold more formal meetings. The claimant discussed the email from Mr Fox with Councillor John James expressing dissatisfaction with Mr Fox’s manner towards her.

[28]Mr Fox responded [424 – 425] again in turn. He raised a point of disagreement about IT and said he would discuss it with the Civic Committee. He again referred to an absence of staff meetings, having to keep a log for his hours, and complained about holiday policy procedures. He said from his perspective that “I feel over the last few weeks and through stages of your engagement during the job evaluations there is some change in character. If I have personally have offended you or are not supporting you enough in my role as Technical Services Officer then please let me know.” He referred again to arranging a meeting with the Civic Committee. Councillor Owens accepted in oral evidence that Mr Fox, in continuing to copy in the members of the Job Evaluation Committee into his emails with the claimant about various issues, was undermining her. Councillor Owens did not rule out the possibility that Mr Fox was trying to influence the Job Evaluation Committee.

[29]The claimant was excluded from the job description/job evaluation process other than her own assessment. Mr Fox had been having some interaction with (or members of) the Civic Committee and the Job Evaluation Committee that did not involve the claimant. He had raised the issue of overtime pay with them. That interaction was taking place is also shown by his subsequent email of 15 March in which he described, from his perspective, the claimant being unhappy with him attending (without her) before the Civic Committee. Mr Fox also talks about helping the job evaluation group with the ground staff and going forward. He later on said that he had also had some involvement in the claimant’s own post. The subsequent special panel report also confirms that Mr Fox was consulted on some posts in the job evaluation process. Likewise, later on, Councillor John also confirmed this when giving his evidence to Mr Egan. Mr Egan later found it established that Mr Fox had established a direct route of contact into Councillor James. The claimant was aware that Mr Fox was having some interactions with members of these Committees, but she did not know the exact details of what was being discussed. It unnerved her and she felt it was unfair for other managers to be consulted about their staff and yet she, as the head of the management chain, was not involved from that management perspective.

[30]The claimant emailed Councillor John James on the evening of 5 March 2017 [427] as she considered she had received another aggressive and disrespectful email from Mr Fox. Her email said “As indicated to you, I had been prepared to overlook Lee’s first email. However, his most recent email is a further example of misconduct and disrespect for authority. Accordingly, could you please ensure that we can discuss this issue tomorrow, for me to establish your preferred method for me to discipline Lee?” The claimant says that she was intending to start a disciplinary process against Mr Fox by holding an investigation meeting but that she wanted to have the support of the respondent and that she was aware of potential awkwardness as Mr Fox’s wife and Councillor John James were both standing as the Labour candidates for two County Council seats in the forthcoming elections and were campaigning together. Mrs Fox and Councillor James were also seeking election/reelection to the Town Council. The claimant says that she was also mindful that, from her understanding, the respondent did not have any disciplinary policies or procedures in place as a draft Employee Handbook had never been formally adopted.

[31]The claimant and Councillor John James spoke on 6 March 2017. Councillor John James was not a witness in this case and the Tribunal was therefore only able to take an account from the claimant. The claimant says that when she raised potential disciplinary action Councillor John James did not agree, did not agree that Mr Fox’s behaviour was totally inappropriate and said that he had to “play things down the middle.” Councillor James suggested an apology from Mr Fox may suffice. The claimant said that Mr Fox needed to be spoken to. Councillor James agreed to meet on 7 March when Mr Fox would also be in.

[32]The next day, however, Mr Fox reported sick [428]. Unknown to the claimant at the time some contact passed separately between Councillor John James and Mr Fox. In particular, Councillor James emailed Mr Fox on the morning of 7 March saying “If you wish we could meet at 8:45 this morning. Melanie has requested that the three of us meet at 12:30pm today. I’m not attending facilities but will be available to meet with you prior to the meeting.” Mr Fox responded to say that he had reported sick and that “regarding the other issues yes I would be glad to meet up and discuss the way forward as I just seem to be getting emails which seem to be misleading. I would however wish to pursue a full complaint on a couple of issues. Do I go through yourself?” [429]

[33]The claimant did not tell Councillor James that Mr Fox was unavailable as she had other matters to discuss. Councillor James did not turn up to their meeting. He turned up approximately an hour later with Councillor Kenneth Edwards. The claimant had wanted to discuss a draft meeting agenda with Councillor James, which included an agenda item about Mr Fox’s conduct, but Councillor James did not have much time to discuss it. Councillor James told the claimant he was aware Mr Fox was not in work that day as he had spoken with Mr Fox that morning.

[34]On 8 March Mr Fox returned to work and sent an email which mentioned that he had requested a meeting with the Civic Committee about the fact the claimant had said he should take sickness absence rather than a day’s holiday and her refusal to pay overtime for time worked on a sick day (that he would be paid sick pay for) [432]. Mr Fox copied Councillor James into the email exchange. The email exchange continued, and Mr Fox said he had requested a meeting due to the nature of his sickness. He asked Councillor James (who was still being copied in) to “arrange a meeting as discussed yesterday and escalate a few minor issues” [431].

[35]The claimant was concerned that the prospect of Mr Fox meeting with the Civic Committee was not normal procedure. She emailed Councillor James about this, again seeking the original meeting be rearranged urgently [434]. She said the issue with Mr Fox was taking up too much of her time and she felt the situation was starting to have an adverse effect on her health due to the simultaneous demands being made on her time. The claimant suggested a meeting on 10 March. She suggested the same to Mr Fox [431]. Councillor James (who remained in the email exchanges between the claimant and Mr Fox) said he agreed that a meeting was needed as soon as everyone was available. He said that it should include Councillor Edwards as Vice Chair, but he said he himself was unavailable on the suggested dates. Councillor James then said the item on the agenda relating to Mr Fox should be pulled as they would not have had the meeting by the date of the Civic Committee meeting on 13 March. He said they should explain to the committee that it was down to the fact that they had not had the opportunity to meet.

[36]The claimant spoke to Councillor James on 9 March and objected to this. Councillor James suggested a meeting may be possible at 5:30pm on 10 March. The claimant also raised the potential for another Councillor to take Councillor James’ place if he felt it was awkward due to Mr Fox having been directly contacting him. She says that he seemed angry and said the claimant was questioning his credibility. Councillor James also told the claimant that Mr Fox was making complaints about her. The claimant was shocked to hear this.

[37]Councillor James subsequently confirmed the meeting would go ahead. The claimant then told him she was unhappy about not having advance details of Mr Fox’s complaints. She said she wanted brief details in writing. The claimant also said that the basis of the meeting seemed to be changing as originally it had been to investigate Mr Fox’s behaviour but now it seemed to be her who was being investigated. Councillor James said that he would speak with Mr Fox and he then telephoned the claimant again to confirm that the written information would be provided from Mr Fox.

[38]On the afternoon of 10 March Councillor James telephoned the claimant to say he and Councillor Edwards thought it would be best to meet only with the claimant that afternoon and to meet with Mr Fox at a later date. He said the majority of Civic Committee members had also agreed the item regarding Mr Fox’s conduct would not be discussed. The claimant said she considered her complaints against Mr Fox should be investigated first, that it was separate to anything Mr Fox was seeking to raise, and she thought Mr Fox was seeking to deflect attention away from himself. The claimant said she did not see much point in the meeting going ahead and that she could provide full written details of her concerns so that the Civic Committee agenda item could proceed. Councillor James said the discussion would not take place at the Civic Committee meeting until they had all the facts. He also said he had been asked to look into an issue relating to holiday leave the claimant had recently taken. Councillor James alleged the claimant had said she would not be taking leave February half term and that he had a witness to her saying this. The claimant told Councillor James that she had in fact said she was hoping to take leave, but it would be subject to her ensuring her work was done and she would have to do some work at home anyway. She says Councillor James said again he had a witness and the claimant said she was concerned about this. She says Councillor James said that she was “falling out with all members of the Council.” The claimant says she told Councillor James she did not agree with this. She says until this situation with Mr Fox emerged she had always had a good and friendly relationship with Councillor James for many years and she had to work closely with him as the then Mayor. She also told him that she did not see any purpose in the meeting going ahead as Mr Fox was not going to be there.

[39]The claimant felt unsupported by Councillor James and felt he was favouring Mr Fox. She was upset. She spent the weekend thinking matters over. She formed the view Councillor James had an allegiance to Mr Fox as a result of Councillor James’ personal and political connections to Mrs Fox, due to them campaigning together in the Town and County Council elections. She did not know how best to deal with it because it was important, as Town Clerk, that she maintained a good relationship with the Mayor. The claimant decided to approach the Chair of the Audit Committee, Councillor Theodoulou. She sent him a text message [847-848] on 10 March saying that there had been a development she was uncomfortable with and asking for a chat. Councillor Theodoulou’s response was that it may not be wise for the claimant to say too much as if there was an appeal it was better if he stayed eligible for that. He added that if the claimant needed to talk urgently in his role as chair of audit then he was free Monday afternoon. The claimant said in response to Councillor Theodoulou that she was feeling pretty awful after the conversation with Councillor James. She said one of the comments made was that she was “falling out with all the members of the Council.” She said she would need Councillor Theodoulou’s intervention as chair of audit.

[40]The claimant decided to put her concerns in writing, in a 9-page letter, with attachments [A5-13 and A23 to A36]. The claimant set out the history from her perspective as to what had happened with Mr Fox and Councillor James. The claimant said it was a significant concern to her that Councillor James seemed reluctant to investigate the issues which she had raised about Mr Fox despite her suggesting it may be preferable for him if the matter was looked into by another Councillor. She said that whilst he had emphasised his impartiality “I am fully aware that he is in a compromised position as he is standing alongside the TSO’s wife, Mrs Amanda Fox as the two Labour candidates for the forthcoming County Council elections. This fact is being widely publicised on social media and I attach a copy of a post by Mrs Amanda Fox on Facebook from Friday 10th March, which has been shared by her husband, the TSO.”

[41]The claimant also referred to the response she had prepared about the job evaluation process and that she had still not had a meeting with the four Councillors involved and said, “I clearly feel that the fact that I challenged the method by which the evaluation of my role as Town Clerk was being undertaken has not been well received.” The claimant referenced to the fact that at the Committee meeting on 13 February there was a long discussion about whether the claimant could attend the annual SLCC conference for Wales and that it had been emphasised that the respondent “was not signed up to SLCC.” Ultimately there had been a vote in favour of the claimant attending. She said that Councillor James had also made an inappropriate comment that the claimant had “applied to go elsewhere” in reference to the claimant applying for the role of Town Clerk at Llanelli Town Council. The claimant said that matters had been brought to a head as a result of her concerns about the way in which the TSO’s behaviour had been handled but there were additional matters which were causing her considerable concern, namely:• “The excessive delay in undertaking the job evaluation process and the lack of information/feedback provided to me.

• The apparent fact that Pembrey & Burry Port Town Council does not recognise SLCC and the joint NALC/SLCC 2004 National Agreement.

• The fact that I have been excluded from every part of the job evaluation of the other Council staff, despite that I am the Council’s Proper Officer and responsible for all members of staff.

• The statement made by the Mayor and Chair of the Civil Governance and Personnel Committee, Cllr John James that I am “falling out with all members of the Council”, which suggests to me that I no longer have the confidence of the Councillors of Pembrey & Burry Port Town Council.

• The fact that Cllr John James has indicated that the TSO is making complaints about me, but to date, no information has been provided.”

[42]The claimant concluded: “I therefore await hearing from you with your urgent observations.” The claimant hand delivered the letter to Councillor Theodoulou on the Sunday evening. She was distressed and briefly discussed what was in the letter. She said that the worry was making her unwell and she did not know if she would be able to attend work the next day. She was particularly anxious about attending the Civic Committee meeting. Councillor Theodoulou told the claimant he would give priority to her letter.

[43]The claimant did not feel able to attend work the next day and she emailed Councillor James saying she would not be in. The Civic Committee minutes from 13 March 2017 [441–443] record a question being asked as to whether previous clerks had been members of SLCC and who paid the claimant’s membership. It also records it being said that any staff not satisfied with the outcome of the job evaluation process would have the right of appeal to the Chair of the committee who would constitute an appeal panel. The minutes also record that the item on the agenda relating to the TSO’s emails sent to the Town Clerk was not discussed. The claimant did not hear from Councillor Theodoulou that day so on the 14th the claimant send him a text message [849] saying she was still feeling pretty lousy but that was anxious to return to work. She asked if there was any progress. He telephoned to say that he had prepared a report which was to be considered the next day.

[44]On 15 March 2017 there was the monthly Council meeting [444]. Councillor Theodoulou circulated a report [1388-1399]. The claimant did not see the report at the time. The report sets out Councillor Theodoulou’s understanding that the claimant was complaining about two things. He termed the first as being the claimant’s dispute with Mr Fox, her attempts to deal with him, the response from Councillor James and his committee. He termed the second as being the length of time it has taken to reevaluate the claimant’s post. Councillor Theodoulou recorded that he contacted an experienced ex-Clerk for advice whose advice was to take the matter to the full council. Councillor Theodoulou recorded that he then spoke to Councillors Owen and Edwards and left a message for Councillor James. He said this was to ensure he was being open and transparent. Councillor Theodoulou said in evidence he did not actually get to speak to Councillor James. Councillor Theodoulou recorded that he had then decided to call a meeting of the two other main chairs; Councillor Phillips and Councillor Matthews and also invited Councillor John. The report recorded that the group’s recommendations were that a further group be authorised to investigate the issues (other than the pay evaluation which was not considered to be an audit matter) and report back to Council as a matter of urgency. It recommended that the persons implicated in the letter have sight of it and be asked to submit a written statement that would be copied to the claimant. It said the group may then wish to interview individuals involved. The claimant alleges that she approached Councillor Theodoulou in confidence and that in speaking to so many individuals, particularly the Labour Councillors, was a serious mishandling of the situation.

[45]The Council [444] approved the appointment of a special panel to investigate the claimant’s formal complaint, take into account submissions from other parties, and then report back to the Town Council. The claimant complains that at the Council meeting her complaint was circulated to attendees including Councillor James. Mr Theodoulou says that it was only his report that was circulated and not the claimant’s actual complaint. He says that the minutes where they say “The Town Council considered the formal complaint from the Clerk, in writing, received by the Chair of the Audit Committee” could be seen as slightly misleading but that they were not intended to indicate that the claimant’s complaint was actually circulated. The Tribunal accepts his evidence, and that the formal complaint was not actually handed over and circulated. The claimant also points out that Councillor James was at the meeting and did not declare an interest and leave the meeting whilst the discussions were taking place. Councillor Theodoulou said in evidence that he personally thought Councillor James should have done so, and had expected him to do so, but that he also could not recall Councillor James actually saying anything when it was discussed. The special panel appointed was Councillor Robert John, Councillor Andrew Phillips and Councillor Moira Thomas. It was specifically appointed to be cross party.

[46]Also on 15 March Mr Fox emailed Councillor James saying he was forwarding on an email he had drafted the previous week with a list of questions for the Civic Committee. He said he would prefer to raise them via Councillor James rather than direct to the claimant. Mr Fox’s list included reference to an email he said the claimant had sent him on 16 February saying she was confused about why Mr Fox was attending a meeting with the Civic Governance Committee and that it should go through her. He said the claimant had seemed agitated and that he had explained he had been helping the job evaluation group with the ground staff and going forward. He also complained about IT security issues, how holidays were handled (including about the February half term that Councillor James had challenged the claimant about), the lack of formal staff group meetings, that (in effect) he felt micromanaged by the claimant about having to approve and prioritise his work, that the claimant allocated work to him, and that the claimant had said to another staff member she was unhappy about his wife standing for election. The email seems to refer to an earlier discussion between Mr Fox and Councillor James.

[47]On 18 March Councillor James emailed the claimant to see if she would be in the following week and therefore the claimant chased Councillor Theodoulou again. He told the claimant that the special panel had been set up, that speedy progress would be made and if needs be there could be multiple meetings in the week. The claimant returned to work on 20 March. The claimant said she received further rude messages from Mr Fox which she felt unable to challenge. She emailed Councillor Theodoulou saying that it was also causing an uncomfortable atmosphere in the office. She asked about what progress had been made and asked whether she should contact Councillor John directly [455]. The claimant did then email Councillor John on 21 March [446]. He responded to state that in the absence of a formal complaint the claimant’s letter would be dealt with under the grievance procedure save that the issue of the claimant’s job description would remain under its existing procedure [447]. It is not clear to the Tribunal why Councillor John referred to the claimant’s complaint as not being a formal one.

[48]On 27 March 2017 the claimant received an email from Councillor James asking her to attend a meeting about her job evaluation on 30 March [451]. The claimant asked whether she would receive anything in writing in advance, referring to the fact she had previously been told a letter was being prepared. Councillor James responded to say the Job Evaluation Committee had agreed for a meeting to take place so that the claimant could enlarge on what she had submitted to them previously, and that she would then receive a written reply from the committee. He said they did not feel they could send the claimant a letter at that stage as one had not been sent to other members of staff after their initial interviews but that the claimant would receive a written response after the current stage was exhausted [450].

[49]On 30 March the claimant emailed Councillor John to confirm that she did wish her letter to be viewed as a formal complaint [453]. Her email concluded “Subsequently, I felt that Cllr John James frustrated what had been intended to happen and I have set out full details of why in my letter. It was due to this and comments he made to me that I felt that I had no option other than to send my lengthy letter to the Chair of the Audit Committee. I felt that otherwise, the situation would not be properly dealt with and could escalate even further.”

[50]The claimant attended a meeting with the Job Evaluation Committee on 30 March 2017. Councillor Owens told the claimant at the outset that the respondent would not be using the NALC Agreement as a basis for her job evaluation. The claimant says that Councillor James and Councillor Ken Edwards bombarded her with questions about her roles and responsibilities as if it were a job interview and that Councillor James and Councillor Edwards set out to take her by surprise and “grill her”. [1263] appears to contain the questions and shows that the claimant was being asked about things raised in the job evaluation process/her submissions about where she considered she should be, such as “Can you give us some examples of the strategic plans that you have personally initiated and developed.”

[51]On 4 April 2017 the claimant met with the special panel about her grievance.

[52]At some point around this time some of the Job Evaluation Committee met with Paul Thomas to, from their perspective, complete the claimant’s job evaluation. The Tribunal has very limited evidence as to what happened at the meeting or who was involved. It would appear from Councillor Owens’ witness statement that it may in fact only have been Councillor Kenneth Edwards. However, we are satisfied that some form of meeting with Mr Thomas did occur who, in conjunction with Councillor Edwards at least, did some form of evaluation under the Carmarthenshire County Council scheme. There was also some effort made to undertake a comparative exercise under the NALC Agreement. It seems likely that the intention was for Mr Thomas to follow it up with some form of formal report but that never arrived.

[53]The best records that the respondent has been able to provide are some papers held by former Councillor Ken Edwards disclosed not long before the hearing in this case [1260 onwards]. They appear to be various handwritten annotations on existing documents which means it is difficult to fully understand them. But they do include a reference to “points awarded by Paul Thomas using C.C. Scale.” A separate note also refers to “Paul’s assessment SLCC Level 2 Scale 35 →38” and “Careful in response to her demands. Evaluate each part of her demands. Using SLCC guidelines.” There is also a handwritten page comparing the claimant’s scoring as against Paul Thomas’ scoring [1274]. There are references to the claimant as “she is piggy backing on others” and that Paul was going to draft a response to the claimant’s letter. It says that Paul’s view was that the claimant’s assessment was over egged and whereas the claimant was seeking profile 4 for a large town, Paul suggested profile 2/3 at 35-38 spinal point. Other notes say, “Paul to give us a rebuttal to her argument” and “We then point out the incorrect nature of her claim” and “We give her the job description and the CCC equivalent pay scale.” It says, “Paul to give it more consideration, and then give us his findings.” Annotations on the claimant’s draft job evaluation prepared by her, dispute things such as the claimant’s attendance at sub committees and working groups, her responsibilities for things as opposed to being the responsibilities of others such as the TSO, disputing that the respondent was a large town, and disputing that the claimant was responsible for “supervising, directing and co-ordinating employees in many areas of activity.” There are handwritten alternative scorings resulting in a conclusion of LC Profile 2. They also include annotations that seem to make observations about the claimant such as “All about her! Not all staff”, that the NALC Agreement were “Her chosen arbitrators”, that they would “assess all staff equally” and “She’s still harping on about Llanelli.” It is said “She accepted role, knowing our parity with C.C.C. pay scale” and (in relation to the claimant pressing for a resolution) “We will not be pressurised.” It also says, “We the Council choose our own salary structure.”

[54]One note, presumably completed by Councillor Ken Edwards, states that the Civic Committee had agreed at the outset that the working party would review all roles and salaries, out of fairness to all employees. It states that the working party decided to begin with the Town Clerk role first and then the Admin staff before the ground force and care taking staff. That said Councillor Owens’ witness statement says that the approach taken was the other way: to start with the staff first and work up the management chain to the claimant at the top.

[55]On 18 April 2017 the claimant received a letter from Councillor James [459 – 460]. The letter said that it was and remained the policy of the respondent to adopt the Carmarthenshire County Council process for the evaluation which had been first introduced in 2006 and that town clerks since then had been employed in accordance with that structure. The letter enclosed a job description which was said to define the role that the committee wish the Town Clerk to fulfil. It said that where deemed appropriate the job description had taken into account the claimant’s submissions. The letter also said: “Out of respect for your wishes we also evaluated, for comparative purposes, your job description using the SLCC scheme that you presented to us. It was not surprising that it had similar criteria for assessment to the CCC scheme and the outcome, following discussions with, and submissions by, yourself that both schemes gave a very similar result.” The claimant was told that the job responsibilities fell within Grade 1 of the Carmarthenshire salary scale points 34 to 38 and that the claimant was currently on job grade 36 with a salary of £31,288. The claimant was told in view of her length of service her job grade would be increased to 38 and her salary to £33,106 (pro rata) “effective from the date of this letter.” The claimant was given 7 days to appeal. Councillor Owens says that the letter was sent with the aim of trying to draw the matter to a close.

[56]On 19 April 2017 the Special Panel produced an interim report [461]. The report said they had considered the written submissions from the clerk and Mr Fox and had spoken to them and Councillor James. They recorded their belief that the crux of the problems lay with the influence of the Civic Committee and in particular the job evaluation initiative. It records that an initial error lay in not including the claimant in the evaluation process for all employees and that “We know of no other organisation where the chief executive (which is what in effect the role of Clerk is) is not involved or consulted in this process. This is particularly puzzling given that the T.S.O. was consulted in relation to an evaluation of certain other posts.” The interim report recorded a particular concern that the job evaluation for the claimant was still not complete. It also recorded concerns that the Governance Committee Councillors had involved themselves in the day to day management of employees without reference to the claimant. It referred to Mr Fox having been told different things about overtime arrangements separately to the claimant which “no doubt further damaged the relationship between the Clerk and the T.S.O. which led to their communicating by email only.” The report recorded a lack of clear concise and sensible communication between all and said that “little wonder then that the Clerk feels she has lost the respect of Councillors and the other staff member concerned.” The report added “This is not to say there is no concern over the Clerk’s day to day management of staff and the work in hand. Her job description clearly sets out her responsibility of supervising all employees and we believe that she must clearly illustrate carrying out that role fairly and effectively.” Initial recommendations were made that councillors and all staff members be reminded of their individual and collective responsibilities, all instructions and communications to be set out in writing, any employee having a grievance should follow the method set out in policy and the parties involved be told the issues and their resolution be noted and retained on file [461–462]. The interim report said that when the deliberations were complete a full report would be submitted. The claimant did not receive the interim report at the time. We were told that an interim report was submitted because of the impending elections which it was anticipated may disrupt the completion of the process.

[57]A full Panel report was prepared. There are two different versions of it [463-464 and 1401-1402]. The claimant did not receive either version at the time. The version starting at [463] referred to what had been set out in the interim report and added that the claimant argued that the constant emails from the TSO should be viewed as a form of harassment. It concluded that there was some justification for that view, but that it should be seen “in the context of the Clerk not exercising her stated responsibilities for the supervision of all staff, which may have prevented the rapid deterioration of this situation.” It said there was also a collective responsibility amongst all councillors in the time taken over matters such as the employee handbook, the job evaluation process, the lack of progress on signing contracts, which did not portray the Council in a positive light. The report repeated the initial recommendations and added that there should be a designated Councillor appointed to whom concerns could be directed, and the early creation of a Disciplinary Committee to undertake further enquiries.

[58]The version starting at [1401] refers to other evidence. In particular, that a witness had come forward saying that the TSO had said “Melanie and Shan are going to be sacked”. It said there was clear evidence that the actions and comments of the TSO fell below what is acceptable behaviour for employees. It says, “We are of the view that this should be regarded as Gross Misconduct.” The respondent’s witnesses said in their oral evidence to us that Councillor Phillips had not been re-elected which led to deadlock between the two remaining Councillors on the panel and that is why two reports were produced. It was also said that [1401] was an initial draft and that the witness referred to refused to be identified and stand by the evidence given, such that it was decided to remove the reference. An email at [468] with a subsequent date of 16 May 2017 shows Lisa Bryan (Councillor Lisa Mitchell) emailing Councillor Bob John saying “Lee has repeatedly told me that Melanie should not be in her post and that two people (suggesting Shan and Melanie) would not have their jobs for long.” Councillor Mitchell also referred to Mr Fox as being hard working, and good at this job, but that he likes to take the reigns to get things done his way and had often stated it was “all about tactics.” She asked if there was a way that the matter could be dealt with in order that they could move on positively without Mr Fox losing his job, but she would leave it with Councillor John. It is this evidence from Councillor Mitchell that the Special Panel report was referring to. Councillor Theodoulou thought that the version at [463] was the final one, although the version at [1401] was later put before Mr Egan. None of the reports of the Special Panel directly referred to the specific concern the claimant had raised about the conduct of Councillor James.

[59]Returning to the job evaluation process, the claimant wrote to say she was appealing [465]. The claimant said that there had been no discussion at the meeting on 30 March about her intended new job description or a discussion about her objections to the original draft job description or her proposed amendments. She said it significantly changed her terms of employment and contained fundamental errors. The claimant complained that there had been an evaluation without there being a mutually agreed job description. She asked for copies of both evaluations undertaken by the Committee. She pointed out that she had been on SCP36 since January 2014 and should have progressed on an annual basis in that grade range such that she would have reached SCP 38 at an earlier date. She disputed that the grade range was an appropriate one for her role. She asked to be allowed to provide a full response once she had been given the evaluation documentation. The claimant’s salary remained at SCP 36. Councillor Theodoulou told us that this was because the claimant had not contacted Carmarthenshire County Council to tell them to put her pay up.

[60]The claimant received a letter from Councillor James dated 27 April 2017 [466-467] proposing a further meeting with the Job Evaluation Committee about the job description. It did not happen because the local elections were due on 4 May 2017.

[61]The election results represented a sea change for the respondent. Labour lost their long-held majority to the Independent group. It was a double blow for the Labour councillors because they had previously approached Councillor Owens, an independent Councillor, to see if he was agreeable to being the next Mayor. The respondent’s witnesses told us that was probably because the Labour group had run out of Mayoral candidates due to the Councillors either having previously held the role or not wanting to take it on. Presumably in proposing Councillor Owens the Labour Councillors did not anticipate losing their majority. For the Labour group it meant not only losing majority control of the Council, but they had also passed over to the Independent councillors, the Mayorship. Councillor Ken Edwards did not stand as a Councillor, but his wife, Mrs Linda Edwards was successfully elected, as was Mr Fox’s wife. There were also two other new Labour Councillors; Councillor Karen Morris and Councillor Bob Walpole.

[62]A substantial number of the specific allegations in this case relate to alleged actions by Labour Councillors. No Labour Councillors were called by the respondent as witnesses in this case. This troubled the Tribunal as we needed to make findings of fact about certain allegations, potentially having heard no direct evidence from the respondent’s perspective and the particular individuals who have specific allegations made against them. We therefore asked Counsel why this was. The respondent’s Counsel said that initially Mr Kenneth Edwards was due to potentially be a witness but had withdrawn through ill health. Counsel said that otherwise the decision made as to witnesses was a privileged matter. That is of course the respondent’s prerogative, but it makes clear to the Tribunal that who would be called as the respondent’s witnesses was something that had been carefully considered before a decision was made.

[63]Following his election as Mayor, Councillor Owens asked the claimant whether she wished to consider withdrawing the allegations made in her letter of 12 May. He suggested it may be better for her to allow matters to be dealt with in a different way. The claimant told him she did not wish to do so, and he told her he would ensure the matters raised were properly addressed. We accept there was nothing sinister in that enquiry by Councillor Owens.

[64]On 4 June 2017 Councillor Linda Edwards sent Mr Fox an email saying, “Hopefully Melanie will be out sorting the toilet problem tomorrow though as I speak there are pigs flying over our house.” The claimant did not see this email at the time.

[65]At a meeting of the Civic Committee on 12 June 2017 [474-478], Councillor Owens (now both Mayor and Chair of the Civic Committee) referred to an agreement from the previous Town Council meeting that a disciplinary panel was to be set up comprising himself, Councillor Stephen James and Councillor Mary Wenman. He recommended that expert advice be taken first and approval was given to contact One Voice Wales. Councillor Owens also referred to the fact the claimant’s evaluation remained outstanding and it was agreed that the claimant would meet with Councillors Shepardson and Moira Thomas with a view to agreeing a final job description. The minutes also record the claimant referring to the evaluation not being undertaken in accordance with the NALC Agreement and she suggested that as advice was being sought from One Voice Wales anyway, advice could also be obtained regarding the NALC Agreement being used as basis for the evaluation of a Clerk’s role. This was agreed by the Civic Committee. The meeting about the job description took place on 20 June where they were able to largely agree the description although a few matters were to be referred back to the Committee [480].

[66]On 20 June 2017 the claimant also sent an email to Councillor Owens [480] asking again to see the documentation relating to the evaluation by the Job Evaluation Committee and Carmarthenshire County Council. Councillor Owens responded on 26 June [484] to say the job description would hopefully be agreed at the next Committee meeting prior to it being forwarded to Carmarthenshire County Council for evaluation. He said, as explained to the claimant, that actual working papers on the previous evaluation had not been received from the County Council but the committee had accepted that the evaluations for all the staff had been carried out by professional staff employed by the authority. He said that the position of the respondent remained that job evaluations would be carried out by the Council. He said he would pass on the claimant’s requests for further information to the newly constituted Civic Committee and that he was keen to bring the matter to a closure.

[67]The claimant’s job description was agreed at the Committee meeting on 10 July 2017 [486-490]. The minutes record Councillor Owens stating the claimant had requested the documents for the earlier evaluations and that it was agreed that the claimant was entitled to see how the evaluation had been carried out to date. The minutes also state that Councillor Owens referred to the fact that the Clerk had consistently expressed the view that her evaluation should be carried out in accordance with the 2004 National Agreement. He therefore confirmed that when a representative of One Voice Wales attends on Thursday 13th July, he would enquire what One Voice Wales’ view is on this issue.

[68]Councillor Owens had a discussion with Mr Egan from One Voice Wales on 13 July. Mr Egan then produced a consultancy proposal advising that the handling of the claimant’s grievance should follow the Acas Code of Practice and recommending that there should be a new investigation with a grievance hearing and a right of appeal. He also recommended investigations in respect of the claimant’s disciplinary allegations against Mr Fox and also more recent allegations made by a Councillor (Councillor Theodoulou confirmed in evidence this was him) also against Mr Fox about the conduct of Mr Fox at a Facilities Management Committee. Mr Fox had also made a counter complaint against Mr Theodoulou. Mr Egan’s proposal also included a quote for a fixed price of £180 to assess the grading of the post of Town Clerk using the NALC Agreement [491–493]. On 21 July Councillor Owens emailed Mr Egan [1413-1414] saying the Council had decided to accept his recommendations in relation to the grievance from the Town Clerk. In relation to disciplinary allegations concerning the TSO, he said the Council wanted to explore the option of an informal resolution if possible, as recommended by the Acas code. He said if that resolution was not possible, they would revert to Mr Egan. In relation to the Claimant’s job description, he said that this lay with the Civic Committee and he would revert to them and then to Mr Egan if they wanted him to undertake some work in that regard. Councillor Owens also stated that the agreed job description was currently being evaluated by Carmarthenshire County Council in accordance with the respondent’s current policy. Mr Egan said he would start on the grievance investigation.

[69]On 25 July Mr Fox wrote to Councillor Owens saying there was a conflict of interest with seeking professional guidance from One Voice Wales. He asked for an independent arbitration [1416-1417]. Mr Egan sent Councillor Owens a form of wording saying he had no conflict of interest [1415-1416], which was forwarded on to Mr Fox. On 27 July Councillor Owens also told the claimant and Mr Fox that the Council’s instruction was that the claimant should attempt to informally resolve the disciplinary allegations concerning the TSO [1422]. Mr Egan wrote to Councillor Owens with letters to be sent out about the investigatory interviews for the grievance investigation and said “I will have to hold off on the letter to Lee until such time as I receive the electronic version of the grievance letter which I will need to redact non-relevant information relating to his position in the matter” [1423]. On a date unknown Councillor Owens had written to Mr Fox [A107] asking him to attend an investigation meeting with Mr Egan about the claimant’s grievance.

[70]On 28 July 2017 Councillor Owens wrote to the claimant [504] confirming that Mr Egan would be undertaking an investigation of her grievance. The Tribunal does not have the Respondent’s minutes regarding exactly what Mr Egan was to be authorised to do (particularly from 19 July 2017). On the basis of the evidence before us we find that it was to investigate the claimant’s grievance only at that time. It was not a disciplinary investigation nor was Mr Egan was instructed to evaluate the claimant’s post. We reject Councillor Owens’ assertion in evidence that Mr Egan was instructed on 19 July 2017 to undertake a comparative job evaluation. There are no documents confirming that formal instruction and it does not accord with Councillor Owens email of 21 July. Further if Mr Egan had been instructed at that point in time he would have got on and done it.

[71]The claimant met with Mr Egan on 3 August 2017. That same day Mr Egan also met with Ms Louden, and Councillor Theodoulou. The next day he met with Councillor John James and Councillor Hedley-Jones. He met with Councillors John and Owens on 7 August. On 10 August Mr Egan sent Councillor Owens a letter and list of questions to send to Mr Fox [A108- 109], which included such matters as the degree of contact between Mr Fox and Councillor James.

[72]On 14 August 2017 (and whilst the claimant was absent on annual leave) Mr Fox resigned, handing in a letter to Councillor Owens [505]. Mr Fox did so without having spoken to Mr Egan. Councillor Owens gave Mr Fox the opportunity to reconsider his position. On 15 August Mr Fox confirmed that he had not changed his mind. When handing over his resignation Mr Fox said to Councillor Owens that he could not work with Councillor Theodoulou and that earlier in the year he had been told by Councillor James to “get ready to take over from the Clerk” [557]. Councillor Owens did not do anything with this information at the time. He accepted in evidence there was an element of not wanting to rock the boat with the Labour group at a fractious time.

[73]Mr Fox’s resignation as TSO became an extreme source of friction in the Council. For reasons that are not fully clear to the Tribunal (limited in particular by the respondent’s choice of witnesses), the Labour Councillors appear to have taken the view that Mr Fox, despite having himself decided to resign, had been unjustly treated including by Councillor Theodoulou. Mr Fox was of course the husband of one of the Labour Councillors. Some, at least, of the Labour Councillors, appear to have formed a concerted plan to try to get Mr Fox reinstated. On 18 August 2017 the Labour group of Councillors held a meeting in the respondent’s premises. As Councillor Owens says in his witness statement, it is likely that this was a meeting of the Labour group to discuss Mr Fox’s resignation. On 21 August 2017 Councillor Moira Thomas telephoned the Carmarthenshire County Council’s deputy monitoring officer about Mr Fox’s resignation and a Code of Conduct allegation about Councillor Theodoulou. The monitoring officer redirected Councillor Thomas back to the claimant as Clerk [506].

[74]On 22 August 2017 the claimant sent an email to Councillor James [507] about the Labour Councillor meeting which had taken place on 18 August 2017. The email said that no booking had been made for the meeting room. The email said that if it was a meeting of the local Labour Group, then a formal booking should have been made and an invoice raised. The email said that alternatively if the meeting was held by Labour Council members to discuss Town Council business then a meeting would be inappropriate as a meeting of Labour Councillors was not a formally constituted committee of the Council. The email said “As you will be aware from the Code of Conduct training presented by the Deputy Monitoring Officer of Carmarthenshire County Council…there is a requirement for members to act objectively. If there is a predetermination on any issue, then there is a risk that a Councillor is in breach of the Code of Conduct.” The email said that the Mayor had told her that he had previously informally agreed that the meeting room could be used by Labour Councillors but that he felt that unfortunately he did not have the opportunity of giving it sufficient consideration at the time. The email said that the Mayor had asked the claimant to inform Councillor James that such meetings should not take place in the future. The email was sent by the claimant on the instruction of Councillor Owens.

[75]In the Tribunal’s judgement, the Labour Group of councillors were feeling increasingly angry. The implications of the election outcome, and in particular their loss of control, were becoming clearer to them. There was no easy route to get Mr Fox reinstated. The claimant’s email of 22 August 2017 was in all likelihood a “red rag to a bull”, as it was limiting the Labour group’s ability to meet, making them feel as if they were being picked on and indirectly suggesting they may be in breach of the Code of Conduct, whilst emphasising the change in the power base. On 23 August 2017 Councillor James emailed the claimant, now calling her “Dear Mrs Carroll-Cliffe” (as opposed to Melanie or Mel) and asking if a meeting held by Councillor Theodoulou and other Independent Councillors who had recently held a meeting had similarly been required to make a booking.

[76]On 26 August Councillors Moira Thomas and Bob Walpole tried to call an extraordinary meeting of the Civic Committee on 30 August to discuss Mr Fox’s resignation [511]. Councillor Owens responded to say that a decision such a meeting could not be held was based on advice from the Clerk, Deputy Monitoring Officer and instructions from the Ombudsman. Mr Fox had made a complaint to the Ombudsman about Councillor Theodoulou. Councillor Owens said to us that the advice from the monitoring officer was that as a complaint was before the Ombudsman about why Mr Fox had resigned then a meeting could not discuss it [510]. Councillor Owens also said in his response to Councillors Thomas and Walpole that he was asking the Clerk to clarify whether the meeting should have been called through her office rather that the committee being contacted direct. Councillor Walpole responded on 30 August to say that they were of the opinion that the claimant had a conflict of interest in the matter. His email also said the meeting was going ahead that night [509]. The claimant says that Councillor Owens later challenged Councillor Walpole about this, and that Councillor Walpole withdrew this allegation of a conflict of interest. It does, however, show that feelings were running high.

[77]That afternoon (30 August 2017), the claimant was in the main office and Councillor Linda Edwards came in. Councillor Linda Edwards mentioned the extraordinary meeting taking place that evening. The claimant responded by saying she did not know whether the meeting would be going ahead. The claimant says and we accept (we did not hear evidence from Councillor Linda Edwards) that Councillor Edwards came up to close to her and said in an intimidating manner and voice: “The meeting IS going ahead”. The exchange was witnessed by the Administrative Officer, Ms Loudon, who immediately reported it to Councillor Owens. In the Tribunal’s judgement, this was likely to have been born of the strength of feeling within the Labour Councillor group as to the treatment of Mr Fox, combined with the curtailment of their power over things such as calling meetings and agenda items. The claimant as Town Clerk became seen as one of the sources of their obstacles and allied to the Independent group. It led also to the Labour Councillors at times corresponding with the claimant (as Councillor James had done on 23 August 2017) in a very formal manner in emails, instead of their old friendlier style. The Tribunal accepts it is likely that this was a decision collectively made to treat the claimant more formally. The claimant says, and we accept, that at a subsequent meeting with Mr Egan and Councillor Walpole on 30 November 2017 Councillor Walpole admitted that the behaviour stemmed from the claimant’s email of 22 August 2017 about room bookings.

[78]The meeting on 30 August 2017 in the end did not go ahead. On 31 August 2017 Mr Egan sent various individuals the summary of their meetings for approval or amendment, saying that it would feature in the report. Councillor Owens also emailed Mr Egan that day [1449] saying “Thank you for sending me your draft report which is both comprehensive and informative.” He sent email addresses for Mr Egan to be able to get approval of witness summaries and said “As soon as you are able finalise the report I would like to discuss in detail with you how best to proceed recognising we have quite a lot of open sores between factions in the council that I am trying to heal. I would be willing to meet you in Ammanford if that makes sense.”

[79]The next Civic Committee meeting was 11 September 2017 [516–518]. The claimant raised the fact that she had not had the documentation about the earlier job evaluation. In relation to the fresh evaluation Counsellor Owens advised that this needed to be chased up with Carmarthenshire County Council. Councillor John expressed his dissatisfaction with events since the last committee meeting and said he had spoken with the Ombudsman and if there was any repetition he would make a complaint. He also referred to issues apparently involving the harassment and verbal abuse of staff and said if it occurred any further he would report it to the police. Councillor Owens said that he did not yet have the grievance report from Mr Egan. He said that summaries of individuals’ discussions with Mr Egan had been sent out to those interviewed but not all had been returned. Some individuals said they had not received them, and Councillor Owens said he would chase it up again. There was some discussion about the resignation of Mr Fox and a decision was made to advertise for a replacement TSO on a full-time basis. Councillor Owens says that this followed a long discussion about Mr Fox’s resignation.

[80]A full Town Council meeting took place on 21 September 2017 [1030 – 1041]. The Labour Councillors had held a meeting the day before. The witnesses that we heard from were all in agreement that it was the worst meeting they had ever been to in their professional lives. There was a large number of members of the public in attendance (far more than normal), including Mr Fox. It seems likely there had been a plan in place to get people to attend. Councillor Owens in his witness statement describes the behaviour of several Labour Councillors as being disgraceful.

[81]The claimant says that the Labour Councillors were deliberately hostile towards her and set out to belittle her. She refers to Councillor Thomas alleging that papers for the meeting for Councillor Morris (who needed them on a particular colour paper) had not been properly delivered. The claimant said that a second set had been hand delivered to Councillor Morris in the correct format that afternoon. She says that Councillor Morris stayed quiet and refused to confirm this and that Councillors James and Thomas continued to query why Councillor Morris did not have them at the meeting.

[82]Councillor Thomas also complained about emails received from Councillor Owens and a claim about breach of financial regulations. This related to a hotel booking for a trip for the “Britain in Bloom” awards ceremony. Councillor John had understood that Councillor Thomas had booked 2 twin rooms for herself and Councillor Matthews. He had reported it to the Mayor. Councillor Thomas denied making the booking and said she was upset with Councillor Owens’ email. Councillor Matthews said that it was a provisional booking and that it had been done with the claimant’s knowledge. The claimant denied that she had been aware of the booking being made. She says that she was effectively being accused of lying by Councillors Matthews and Thomas. It is evident from the minutes that Councillor Thomas was also expressing dissatisfaction with the tone of the emails sent about it by Councillor Owens, and it led to another debate about whether there should be a separate meeting to try to resolve the dispute or whether Councillor Owens should apologise (which it appears he did, to move matters on).

[83]The claimant says that Councillor Linda Edwards also started nit picking with her about minutes such as unnecessarily raising points of grammar. For example, one correction raised on the 21 September related to an erroneous apostrophe [1034]. She says that whenever these things were said at the meeting there was public participation, with the members of the public in attendance heckling, jeering and whooping.

[84]Later on in the meeting the minutes of the Civic Committee came up for consideration. There ensued a stand-off between Councillor James and Councillor Owens. Councillor Owens and the claimant said that any discussion about the TSO needed to be in camera. Councillor James that there should be a public discussion about it, and (as described by Councillor Owens) started playing to the gallery, drawing public applause. Councillor James said the public or press did not need to be excluded, and that Mr Fox himself should be allowed to speak. In effect, the Labour Councillors were seeking to hold a public discussion about the reinstatement of Mr Fox which would include Mr Fox himself. Councillor Owens says he considers it was a pre-planned effort to take revenge against him for refusing to discuss Mr Fox’s resignation and that Councillor James was playing to his supporters with the intent of making Councillor Owens out to be the villain. He says that Councillors Thomas and Fox also supported these efforts and targeted him for personal criticism. The claimant at times, in her job as Clerk, was advising Councillor Owens as Mayor, in exchanges just between the two of them. At some point in what was evidently a charged and difficult exchange, Councillor John James questioned why the claimant was speaking to the Mayor rather than speaking out loud. The claimant says that this was done to undermine and humiliate her. Councillor Owens says that it was aimed at him. He says that Councillor James said, “why are you not going to answer, who are you asking now, why not ask the caretaker?” Councillor Owens said that the claimant was caught in the cross fire. There was a 5- minute break. On the return some form of comment was made by Councillor James relating to Mr Fox and an individual councillor, which Councillor Owens understood to contravene the Ombudsman’s instructions. Councillor Owens decided to suspend the meeting.

[85]On 22 September Councillor John [521] emailed the claimant saying “I am contacting you to express my disappointment and disgust at the treatment you suffered at the hands of Councillor John James, Moira Thomas, Shirley Matthews and other “Labour” councillors at the council meeting last night. Your integrity was brought into question by those concerned, whereby you were accused of lying as to certain matters involving council activities. I can only apologise for their disgraceful behaviour which, in my opinion, broke the bounds of acceptable behaviour and almost certainly broke the rules within the code of conduct for councillors. Should you decide to pursue those matters, I offer my full support in whichever way you deem necessary.” The claimant decided not to take action at time, as she did not want to make relationships worse and Councillor Owens told her he intended to lodge a complaint himself with the Ombudsman.

[86]He did so on 27 September [526-526], complaining that Councillor John James and Councillor Thomas had conducted a pre-planned revenge attack in retaliation for emails he had sent and because of his insistence that the Council comply with the directions of the Ombudsman and the Monitoring Officers not to discuss matters relating to Mr Fox. Councillor Owens alleged that Councillor James was attempting to encourage the public to cast him as the bad guy and that his behaviour was disrespectful to the office of Mayor and bullying in tone. He said that Councillor James’ underlying motivation was his absolute determination to get Mr Fox reinstated at all costs. He complained that Councillor Thomas had deliberately attempted to embarrass him by alleging that Councillor Owens had upset her by in turn alleging that she had made a Facebook post (a photograph of the Wales in Bloom award, of Mr Fox, and Councillors Matthews and Thomas captioned “the winning team”) when it was evident that he had never alleged she had posted the photograph. He also alleged that Councillor Thomas brought up the emails about the hotel booking to embarrass him at the public meeting. He also said, “It is my understanding that the Clerk also has an issue with the hotel booking matter.”

[87]Towards the end of September 2017 Mr Fox decided to apply for the new TSO job that was advertised. Councillor John James became chair of the Finance Committee. The claimant says that this was awkward as Councillor James would delay in getting in touch with her about matters such as agendas, or not respond at all.

[88]By 9 October 2017 Mr Egan’s report had been received. On 24 October the claimant emailed Councillor Morris [536] saying that at a Civic Committee meeting held on 9 October, Councillor Owens brought the envelope containing the report to the meeting where its contents were not looked at or discussed. She explained it was agreed that Councillor Owens would request an executive summary be prepared and that Mr Egan attend to meet with the committee to go through this.

[89]The notes taken by Mr Egan, as part of the complete grievance report, record the claimant stating she was seeking was clarification of her line management role and for the matters concerning the TSO’s conduct and behaviour, together with the complaints from Councillor Theodoulou, investigated as allegations of gross misconduct. Councillor Theodoulou had told Mr Egan that he personally had asked for two alleged incidents of gross misconduct against Mr Fox to be investigated and that the Mayor had asked him to arrange an investigation of the actions of the TSO relating to tendering arrangements for the rendering of a building to assess whether financial regulations had been followed and whether the TSO had exceeded his level of authority.

[90]Councillor John James told Mr Egan, in relation to the situation between the claimant and Mr Fox, that he did not think the disciplinary route was the right one and the focus should be on mediation. He said that he had rung Mr Fox on the morning of the arranged meeting to confirm arrangements and it was then Mr Fox had said he was unwell. He said he had not been intending to undermine the claimant’s position as line manager. He admitted having said that it was necessary to “play things down the middle” and that was a reference to the breakdown in the relationship between the claimant and Mr Fox. He said that was partly due to too much email communication and that he was intending to be fair to both parties. He said the item was pulled from the agenda about Mr Fox because arrangements were already in place for the meeting to try to achieve an informal resolution. Councillor James told Mr Egan that his comment about not knowing what way things were going was a reference to not knowing whether an informal resolution would be reached. He disputed saying that the claimant was falling out with members and said he had said she seemed to be at odds with an increasing amount of people. He also said that “having breached standing orders [in taking her grievance to the audit committee] the Town Clerk demonstrated to him a determination to dictate the terms of how her concerns should be managed as she had done so with her job evaluation in wishing to ignore the evaluation method the Town Council had used in the past.” Councillor Thomas met with Mr Egan to deliver a pre-prepared statement which said that she was cancelling the interview as she did not consider him or One Voice Wales to be independent.

[91]Councillor John stated to Mr Egan that the TSO had been directly involved in the job evaluation process as it related to staff reporting directly to the TSO. He said that the claimant had understandably felt left out on a limb and that the Council should have engaged Carmarthenshire County Council to assist in the management of the job evaluation process. He said the Special Panel’s final recommendations that the TSO’s conduct should be treated as alleged gross misconduct was influenced by the evidence of a witness who subsequently declined to formalise what she had said. He also expressed his view that the TSO considered himself critical to the decision-making process and contributed to meetings with his own views but also occasionally implemented matters involving staffing and financial resources that were not fully supported by the Council. He said it was a source of friction. Councillor Owens said to Mr Egan that the TSO had been upset about the method of communication used to communicate with him about the issue of additional hours working and things had started to snowball from there.

[92]An extraordinary Town Council meeting took place on 13 October 2017 [531-533]. The claimant requested the attendance of officers from the local police station to try to ensure the meeting proceeded more smoothly. The public attendees were given a guidance leaflet prepared by the claimant. It was convened to discuss a letter received from Mr Fox’s solicitors seeking Mr Fox’s reinstatement. Councillor Stephen James alleged that his family and other councillors had been subjected to intimidation by friends and family of Mr Fox. Councillor John alleged that he had been sworn at and that Councillor Mitchell had also been intimidated. Councillor Theodoulou proposed that Mr Fox’s solicitors should be told that any proceedings would be vigorously contested. Councillor Walpole proposed that the letter of resignation be rescinded, and Mr Fox reinstated. The claimant advised that the respondent could not rescind the letter as the resignation had come from Mr Fox and that the new role had been advertised with 17 applicants. She says that she was bombarded with lots of questions from Labour Councillors. Councillor Walpole’s proposal did not achieve a majority vote. Counsellor Theodoulou’s proposal (as amended by Councillor John James) was then approved. The minutes record the Mayor referring to the problems caused by the issues surrounding the TSO’s resignation and appealing for the council to be united to enable it to carry out its functions. He said in evidence that he was concerned about the effect the rift between the Labour group and the Independent Councillors was having on the Council’s reputation. He says that aggression was being directed at Independent Councillors who were even accused of driving out Mr Fox because his wife was a Labour Councillor.

[93]The next ordinary Town Council meeting then took place on 18 October 2017 [1042 – 1059]. Councillor Owens stated that the report from Mr Egan had been received and that Mr Egan would be attending to meet with members of the Civic Committee [1049]. The minutes also show continued bad feeling following on from the last meeting, with Councillor John reading out a personal statement of his views about potential misconduct and other Councillors expressing their disagreement with him.

[94]The claimant says that life continued to be difficult for her in work as she was always anxious before every meeting worrying about what the Labour Councillors would say or do next to criticise her. She says that they would continue to “nit-pick” about things and that Mr Fox and others would also try to waste her working time by sending her numerous emails and unwarranted Freedom of Information requests. She says they were orchestrated as the communications would then be questioned by the Labour Councillors at the next meeting. Efforts to get Mr Fox appointed to the new TSO role continued. On 24 October 2017 Councillors Thomas, Linda Edwards, and Walpole emailed the claimant and Councillor Owens complaining about advice given by Councillor Owens to do with not shortlisting Mr Fox for the new job.

[95]On 6 November 2017 Councillor Owens and Councillor John made further complaints to the Ombudsman against the Labour Councillors and about a press report in a local publication [540–541]. The claimant also received an email from a newspaper editor complaining about the way in which the claimant had handled his enquiries [544-566]. Councillor Owens told us that the journalist was a supporter of the Labour group and friendly with them.

[96]At some point Mr Egan attended and met with the Civic Committee in relation to his report. The Tribunal does not have any information about what was said, although minutes of the subsequent Civic Committee meeting on 13 November [558-561] show that Mr Egan had produced a PowerPoint presentation which had been unanimously accepted by all members. Those subsequent minutes also refer to Counsellor Walpole having prepared minutes of the meeting with Mr Egan (which were not produced in these proceedings nor the PowerPoint). Councillor Owens also stated on 13 November that a grievance panel made up of himself, Councillor Hedley-Jones and Councillor Walpole was being set up. The minutes also say: “There was also a discussion in relation to the outstanding evaluation of the Clerk’s role. The Chairman indicated that in order for this to be progressed, the Town Council could either take on a formal SLA from Carmarthenshire County Council in order to formalise the evaluation or alternatively, One Voice Wales could be engaged. A quotation of £180 had been provided by Mr Egan for this to be undertaken and this would be carried out under the NALC/SLCC 2004 National Agreement.”

[97]The minutes from 13 November also show that the situation regarding Mr Fox was rumbling on. There had been a complaint from Councillors Walpole, Thomas and Edwards, alleging that Mr Fox had not been shortlisted, by a majority of the Civic Committee, due to him issuing proceedings. The members in attendance at Civic Committee meeting disagreed saying that various matters had been taken into consideration in not shortlisting Mr Fox including Mr Fox’s assertion he could not work with Mr Theodoulou, and that Mr Fox would face disciplinary action were he to return.

[98]At the Town Council meeting on 15 November 2017 Councillor Owens told members that the full report from Mr Egan was available for Council members to read in the office. That did not include the claimant. On 16 November Councillor Owens emailed Mr Egan to say [1470] that the full Council had approved his involvement as outlined in the proposals, namely clerk job evaluation, provision of policies, training on appraisals and attendance at grievance hearings. On 23 November 2017 the claimant was sent the summary findings and recommendations from Mr Egan’s report [566-569]. She was not sent the whole report. The covering letter [564-565] said that the report containing conclusions and recommendations had been considered by the Civic Committee and endorsed as a response to the claimant’s grievance. The letter said the Grievance Panel needed to meet with her to receive her views on the response on 30 November 2017. The letter said that after the meeting she would receive a letter with the outcome of the Panel’s deliberations.

[99]Mr Egan’s summary findings included that Councillor John James had been attempting to bring the claimant and Mr Fox round a table with a view to seeking a mediated solution, but that the open dialogue that Councillor James appeared to have with Mr Fox resulted in Mr Fox alleging complaints against the claimant. Mr Egan said there were inherent difficulties in Councillors engaging directly with employees outside of the remit of normal line management and it would be sensible to have a protocol in place. It was said there were clear examples of the TSO taking an unacceptable approach towards the claimant in day-to-day management matters. Mr Egan said that Councillor James’ other option would have been to tell the claimant to deal with Mr Fox herself through line management arrangements, but that this might have been problematic given the absence of a disciplinary policy to follow. He found it was understandable for the claimant to decide not to take part in the joint meeting as Councillor James had said she was facing complaints, and anyone would want to have the opportunity to study them in advance and take advice. Mr Egan concluded that Councillor James had good intentions in seeking a mediated solution but the events which took place produced a complex situation which even an experienced manager of staff would find difficult to deal with and the results produced uncertainty about how to take matters forward, resulting in frustration in all round.

[100]Mr Egan recommended a set of policies that the respondent should introduce and an employee appraisal scheme. He also said the claimant’s exclusion from the job evaluation process which affected her staff would appear difficult to justify. His view was there was no compulsion on the respondent to agree to the claimant’s request to use the NALC Agreement but that it was essential an employee was fully aware of the process being used, to receive the detailed results, and have the opportunity to appeal. Mr Egan recorded that Councillor James had denied saying the claimant was falling out with all members of the Council, and that what he had said was that the claimant was not pursuing her concerns in the right way.

[101]The claimant attended the grievance panel meeting on 30 November 2017 with Councillors Owens, Hedley-Jones, Walpole and Mr Egan. Prior to the meeting Mr Egan provided an updated consultancy proposal [837-838] in respect of grading the claimant’s post, providing a set of core employment policies and training on them, and assistance with the grievance hearing and appeal. The minutes for 30 November at [574 – 576] show Councillor Owens saying the recommendations had been accepted by the Civic Committee, the purpose of the meeting was to seek a response from the claimant with the objective of resolving the grievance, and “he added that in addition to the approved recommendations contained in the investigation report, it had also been agreed that One Voice Wales undertake a job evaluation of her post using the 2004 National Agreement on Pay. The Town Clerk would receive a copy of the report of the job evaluation.”

[102]The claimant asked to receive the full grievance report. She was told that this would need to be agreed with the Civic Committee. The claimant also disputed some of the report’s findings, saying that it was she who had pushed for a meeting, and that she considered that Councillor James had been trying to get rid of her and replace her with the TSO. She expressed her concern that she was subject to ongoing hostility by those who continued to support Mr Fox in relation to his job advert for the new TSO post. She said that her letter of grievance of 12 March had been fuelled by pure exasperation with trying to achieve resolution and her frustration with the way Councillor James was handling the matter.

[103]The notes record Councillor Owens saying he acknowledged the claimant’s concerns but hoped a resolution of the grievance might pave the way for more effective working within the Council. The claimant said she remained concerned about the hostility by some Councillors towards her.

[104]The notes also say that the claimant was told the job evaluation would be undertaken in early January 2018. The claimant said she considered the result of the evaluation should be backdated to 2015. She was told the Council had agreed any backdating would be from August 2017 when her new job description was approved. The claimant said she would appeal this as she was not responsible for the delay. The claimant says that she asked for amendments to be made to Mr Egan’s minutes of the meetings and that she did not receive an amended version. We do not know what amendments the claimant sought.

[105]On 11 December 2017 [589] the claimant emailed Mr Egan with some documents. She said, “due to the Council’s insistence up until recently that the evaluation of the Town Clerk’s post should be carried out in accordance with Carmarthenshire County Council’s structure, I forwarded, as instructed, a final agreed version of my job description to Mr Paul Thomas at the County Council during August 2017, but never heard anything further.” She said that at the recent meeting Councillor Hedley-Jones had said he had been prevented from providing a copy of the comparative evaluation undertaken previously by Councillor John James. She said she wanted to have sight of it. A Civic Governance meeting also took place that day. Councillor Owens said that he and the claimant were to initially consider the draft policies received from Mr Egan. The meeting notes record that there was a “full and frank” discussion between members about events and relationships over recent months and that it was agreed that matters should be put aside in order to make progress, albeit there were certain issues still to be resolved. Councillor Owens directed that future issues should be directed via the Clerk as Proper Officer. The minutes also include non-Labour members expressing concerns about confidentiality and trust being broken on a number of occasions, especially relating to Mr Fox’s resignation and there was a discussion about the need for all members to work together [583].

[106]On 21 December 2017 Mr Fox sent the claimant an email (in relation to an exchange about access to his shortlisting information) which said, “As I was heavily involved in the setting of the criteria for the position of TSO my training plan was fulfilled to suit the position of the role, I also had a large input to the clerks role too.”

[107]Over the months since Mr Fox’s resignation, the claimant was told by various individuals of a potential previous plot by some Labour Councillors to oust her and replace her with Mr Fox. The claimant had referred to it in her grievance meeting. The claimant learned that Councillor Mitchell had told Councillor John back in May 2017 about being told by Mr Fox that the claimant and Ms Loudon would not have their jobs for long. The claimant also learned (although not immediately at the time) of what Mr Fox had said to Councillor Owens on his resignation about being told to “get ready to take over from the Clerk.” At some point Councillor John (a retired police officer) told the claimant he was considering whether it was a matter that should be referred to the police. In January 2018 Councillor John gathered some information. Councillor Hedley-Jones told him of a conversation he had previously had with Councillor Ken Edwards where Councillor Hedley-Jones had said after a committee meeting that if things continued as they were, they were in danger of losing their Clerk. He said Councillor Edwards’ response had been ”well, would that be a bad thing?” and that they already had a ready replacement in Lee Fox [596]. From the information before the Tribunal, it appears that ultimately Councillor John decided not to take the matter to the police.

[108]On 16 January 2018 [1486] Mr Egan asked the claimant to send him some information to help with the pay assessment. She did so on 21 January 2018 [1485]. The claimant says that meetings and committees continued to be difficult and upsetting. On 29 January 2018 Mr Fox sent the claimant (and many other individuals internal and external to the Council) an email [1497] with a complaint about an issue that had arisen with the RNLI where both he and Councillor Mitchell volunteered. It apparently related to a comment allegedly made by Councillor Mitchell as to whether Mr Fox had been out with the lifeboats when previously off work sick. It would appear to have caused a substantial amount of bad feeling and in turn an added layer of dispute as to whether the alleged comment could be referred to or relied upon elsewhere if made in camera at a council meeting. The email accused the claimant of being unprofessional in not placing an actual signature on a letter and political bias in acting on behalf of a councillor “in the independent camp” without the authority of full council. The claimant says that in mid-February Councillor Theodoulou told her she needed to watch her back and she was top of the Labour Councillors’ “hit list” [617].

[109]On 5 February 2018 Mr Egan told the claimant that he had sent his pay evaluation outcome to Councillor Owens. The report is at [598 – 608]. Mr Egan’s evaluation was that the post should be graded on LC3 (Points 48 – 51) equating to a salary of £42899 to £46036 a year pro rata. He said the two reasonable options for the respondent would be that or to determine a single point within the range subject to annual review. He also said the respondent would need to consider whether the claimant’s grade should be backdated beyond 10 July 2017. Mr Egan’s letter to Councillor Owens of 5 February 2018 is at [1495]. He says, “please let me know if you wish me to make any changes.” Mr Egan said in evidence that any scope for changes would in fact be limited to correcting, for example, factual information underlying the assessment that he had made. The claimant did not receive Mr Egan’s report at the time (and indeed remained without his earlier full grievance report). The claimant asked when she would be given a copy of the pay evaluation report and Councillor Owens told her that he was intending to discuss it with the committee chairs before reverting to her.

[110]On 26 February 2018 Councillor James wrote to the claimant on behalf of the “Labour Group.” The email referred to the minutes of the closed section of the extraordinary general meeting of 13 October 2017, which had been presented at the full council meeting on 21 February 2018. The email said it was unfortunate that they had not been given notice that the minutes were to be the subject of consideration as they would have drawn inaccuracies to the claimant’s attention at the time. The email said that the decision to present the minutes at the end of a meeting which had already overrun was not good practice. The email said that Councillor Lisa Mitchell’s “comments re Mr Lee Fox at that meeting have been absurdly sanitised to the point of effective misrepresentation.” It was said that Councillor Mitchell had accused Mr Fox of being out on the boat with the RNLI when on sick leave. It said the Council could be in danger of becoming embroiled in further legal action at a future date. It also said, “the adverse comments made by Councillor Theodoulou and Cllr Stephen James regarding inappropriate and potentially criminal behaviour by Mr Fox at the same meeting appear to have been omitted entirely which, once again, rather argues against the accuracy of the minutes.” The email also complained that agendas for the last 3 council meetings lacked the necessary detail. It also said that presenting the minutes some four months after the meeting was not “an acceptable standard of competence displayed both by yourself and your staff.” It also said that the current practice of removing minutes from the website was unwise, likely to be in breach of the law, and could be a serious criminal offence if it involved retrospective manipulation of minutes.

[111]The claimant found the allegations to be very hurtful and distressing. She forwarded the correspondence on to Councillors Owens, John and Theodoulou stating that it showed blind support for Mr Fox and that the Labour group members clearly had a completely different recollection of events regarding 13 October. She said she felt unable to continue tolerating the obvious and unfounded harassment from Labour members, which seemed to be intensifying rather than improving and that it was having an adverse effect on her health and wellbeing. She asked to discuss it with them and Councillors Owens and Theodoulou met with her the next morning.

[112]The claimant also told Councillor John [617] that she wanted to take action herself as she felt she continued to be victimised by Councillor John James and other Labour members, as they perceived her to be responsible for the demise of Mr Fox as a result of her original grievance. She asked Councillor John for copies of the information he had previously been collating. She said the time had come to take action as relationships could not get worse than they already were. The claimant says that similar allegations also seem to be made against non-Labour Councillors such as Councillor Geraint Davies.

[113]The Chairs Committee referred the email/letter from the Labour group to the Audit Committee which came before Councillor Theodoulou, Councillor Walpole (a Labour Councillor) and Councillor Freeman on 1 March 2018. The claimant was called to the meeting with her note book from the Council meeting. The claimant’s notes were examined and found to have no inconsistency compared with the minutes. She said she knew nothing about the removal of minutes from the Council website. The minute clerk was also called, and his notes examined, although he was new in post and his minutes contained less detail that than within the claimant’s. Councillor John James was called before the Audit Committee and was asked for information on what evidence or examples had led to his accusations. He said that he had sent the letter on behalf of the Labour Group and did not personally have the information requested. It was agreed that he would have time to obtain this and the committee would meet again on 13 March. On 12 March Councillor James sent Councillor Theodoulou an email stating that he would not be attending and that “The group feels that the information presented is enough at this time whilst taking into consideration it considers the Audit committee is the most inappropriate body to deal with this issue.”

[114]The Audit Committee concluded that there appeared to be no evidence to substantiate the accusations made by the Labour Group regarding the sanitisation of minutes and removing minutes from the website. The Audit Committee concluded that in relation to the other complaints, that the minutes and the agendas had not been treated any differently than what had been common practice. It noted that approval of the minutes had previously been deferred by the Mayor because other meetings had overrun.

[115]The claimant was increasingly upset and asked Councillor Owens if she could take a week’s leave for some respite which was granted. She then visited her GP who signed her off work on 12 March 2018. The Audit Committee prepared a report that was submitted to the Chairs Committee on 23 March [627 – 633]. It records the claimant saying that she saw it as part of a campaign of bullying by some Labour Councillors, that she had had enough and was going to take it all the way.

[116]In April 2018 the claimant sought some assistance from the Association of Local Council Clerks (ALCC) [647]. The claimant continued on sickness absence and Councillor Owens would periodically visit the claimant. The claimant says that he was not able to reassure her that the situation in the Council was improving and that he would talk about ongoing problems there. For example, when Councillor John was installed as Mayor in May 2018, she was told that the Labour Councillors had walked out in protests at comments made. The claimant was also aware of what was happening from social media. In late April 2018 Councillor Owens visited the claimant so that they could complete a stress questionnaire together [668 – 670]. On 26 April Councillors Owens and John wrote to the Ombudsman complaining about Councillor John James’ email and stating that the claimant maintained it was part of an ongoing campaign of harassment by Labour Councillors and had a serious detrimental impact on her health [671-672]. The claimant was also referred to occupational health.

[117]On 23 May 2018 the claimant asked ALCC what action they would take in her behalf [675]. She was told they could advise her on her actions such as a grievance, a code of conduct complaint, assistance with a return to work, but that they could not do much about individual councillors. They had also said that Mr Egan could not release the pay evaluation to them as it had to come from the Council. On two occasions Councillor Owens asked the claimant to do some work completing minutes [659].

[118]In April 2018 one of the Independent Councillors resigned referring to personal attacks having a direct impact on him and his family. This triggered a by-election and in May the claimant learned that the Labour group’s candidate was Mr Fox. Politically the situation remained incredibly divisive. At the end of his term [1132-1139] as Mayor, Councillor Owens spoke in impassioned terms about the divisions, and the conduct of the wider Labour membership on Facebook which he said had been referred to the police. He said he considered the Labour Councillors had not done enough to control it. He talked about the impact that personal attacks on him had had on him and his family. Councillor John was elected in as the next Mayor (opposed by some Labour Councillors but they lacked the majority to obstruct the appointment). Councillor John read out an acceptance speech that again was highly critical and as he read it out various Labour Councillors walked out of the meeting. By 11 June 2018 [1213] the Labour Councillors were refusing to attend committee meetings for the foreseeable future saying it was not safe to do so in the face of intimidation.

[119]On 19 June 2018 the Ombudsman declined to investigate the complaint against Councillor James [689-692]. The Ombudsman said that the claimant was not subject to the Code of Conduct and that it was an employment matter outside of the Ombudsman’s jurisdiction. The Ombudsman said that the allegations in the email should have been addressed at a meeting rather than writing to the Clerk but that this was not itself a breach of the Code. The Ombudsman also said that whilst the claimant may have been upset or taken offence with a complaint about her performance, the Ombudsman did not consider this evidence of failing to treat her with respect or bullying behaviour. The Ombudsman did express concern at the tone of the language in the letter and said that Councillor James would be written to so that he would be mindful in the future of the way in which is communications may be interpreted by others.

[120]The claimant decided to submit her own Ombudsman complaint [693 – 704]. She says she decided to do so when she learned ALCC could not assist her and also it was one of the steps ALCC had suggested. On 29 June she submitted a code of conduct complaint against all 8 Labour Councillors to the Public Services Ombudsman for Wales. The claimant said in evidence that she hoped the Ombudsman would investigate her complaints and that whilst she hoped it would personally be of assistance to her, she also strongly believed that there was a public interest element as the respondent is a public body and these were publicly elected Councillors. The claimant sent her complaint on 29 June 2018 [693 – 704]. The claimant set out a history of events and said that it was impossible for her to return to work while the issues of bullying and harassment had not been addressed. She alleged breach of paragraphs 4(b) and (c) of the Code in that the Councillors had failed to show respect and consideration for her on many occasions and she had been subjected to bullying and harassing behaviour over a lengthy period. She also alleged a breach of paragraph 7(a) which says a councillor must not “In your official capacity or otherwise, use or attempt to use your position improperly to confer on or secure for yourself, or any other person, an advantage or create or avoid for yourself, or any other person, a disadvantage.” The claimant alleged Councillor James was trying to create a disadvantage for her in forcing her out and create an advantage for Mr Fox in turn. The claimant also alleged that Councillor James was in breach of paragraph 6(1)(a) in bringing the Council into disrepute in respect of the meeting on 21 September 2017.

[121]On 23 August 2018 the claimant received a letter to say her complaints were not going to be investigated [708 – 731]. The Ombudsman said that the allegations made by the claimant were serious and indicated a significant concern about the relationship between the claimant and the Councillors but that the Ombudsman was not persuaded the issues were code of conduct matters, and he could not consider employment matters. The claimant was advised to contact Acas for advice on how to move forward.

[122]In the Ombudsman’s decisions the earlier conclusions about the letter of 26 February were repeated. It was said in relation to 21 September 2017 that the Labour members challenged actions undertaken by the claimant in her role as Clerk, and the questions may have been difficult, the Ombudsman was not persuaded there was evidence of a breach of the Code. Likewise it was said a cooling of the relationship between the claimant and Councillors was not a breach. The Ombudsman was not satisfied there was sufficient evidence of a conspiracy to remove the claimant and said it would be a disproportionate use of resources to investigate the point further. The Ombudsman said that efforts to arrange the extraordinary meeting would appear to have been an attempt to prevent a potential legal situation for the Council, and whilst the proposal may not have been appropriate, the Ombudsman was not persuaded there was evidence to suggest the motive was sinister.

[123]In relation to Councillor Linda Edwards, the Ombudsman said that the comment in the June email to Mr Fox was unpleasant and reminded Councillor Edwards that as a member of the council she was the claimant’s employer and should consider carefully her language. Councillor Edwards was also reminded of the need to raise any concerns about the claimant’s work through proper processes. In respect of the 30 August, the Ombudsman noted that Councillor Edwards denied that the incident took place. The Ombudsman noted that the claimant had said it was witnessed by another member of staff but said that due to the time that had elapsed it was unlikely the Ombudsman would be able to make a finding. An investigation was therefore said to be disproportionate. In respect of Councillor Morris, the Ombudsman said it was impolite for her not to confirm she had received the correct papers, but it was not a breach of the Code. Turning to Councillor Matthews, the Ombudsman said there was a dispute of recollections as to whether the claimant was aware of the provisional hotel booking but that the minutes did not suggest Councillor Matthews had actually called the claimant a liar.

[124]Following the Ombudsman conclusion, the respondent referred the claimant to occupational health [735] saying they wanted to support the claimant back to work and to put in place strategies to help. The referral said the three Committee Chairs would provide any support necessary and the Monitoring Officer would be working with the Councillors on Code of Conduct and behaviours in the workplace, together with HR advice and support. The occupational therapist produced a report dated 6 September 2018 [738] following 6 appointments. She reported that the claimant was still experiencing significant stress and uncertainty in relation to work which had escalated following the Ombudsman outcome. The therapist said the claimant was fearful and anxious about returning to what she perceived to be a hostile work environment which had not changed and was not being addressed. The therapist said the claimant had found the support helpful and if the respondent wished to support additional sessions she would advise re-referral to the service.

[125]In September 2018 the claimant was moved to half pay. On 16 September she emailed Councillor Owens expressing concern about being asked to sign documents when he visited. She asked to not be contacted on work related matters until her health had improved [746]. Councillor Owens replied to say it was a “one off” request and had not been intended to make the claimant feel unwell. It was a form about pay for a member of staff and Councillor Owens says that he wanted to make sure the staff member was paid properly and no one else knew how to do it as it was within the claimant’s remit.

[126]Sometime in September the claimant decided to take some legal advice and met with her solicitor. She then decided to write to the Ombudsman to ask if there could be a review of her complaints as there was no right of appeal.

[127]On 24 September 2018 the occupational health physician provided a report [749 – 750]. This noted that the claimant was waiting a further response from the Ombudsman and said the claimant wanted to receive the final report from the Ombudsman before contemplating a return to work as his comments may influence management changes of a positive nature. The doctor said: “There appears to be an impasse at present as you mention a positive approach to arrangements enabling Mrs Carroll-Cliffe’s return to work whilst she perceives that a return to work would be detrimental to her psychological health due to lack of managerial change. May I suggest that mediation might he a way forward when all concerns can be openly expressed to the satisfaction of all concerned. Then, I believe, Mrs Carroll-Cliffe would very likely return to work.”

[128]The Ombudsman refused to conduct a review. On 28 September 2018 the claimant’s solicitor wrote to Councillor John [751-752]. The letter summarised the claimant’s concerns and suggested a without prejudice round table meeting. The letter also requested a copy of Mr Egan’s job evaluation report. Councillor Owens (as chair of the Civic Committee) responded in a letter dated 18 October 2018 suggesting a meeting with him, Councillor John and a HR manager from Carmarthenshire County Council, who were by then providing HR support under a formal Service Level Agreement. He proposed a date of 25 October 2018 [755]. The letter did not reach the claimant’s solicitor until 22 October 2018. The solicitor was unable to make the meeting given the limited notice and suggested 30 October 2018 [760] but in Cardiff not Carmarthen. He also suggested a short telephone call on the 25 October. The solicitor said that ahead of the meeting the claimant wanted to see Mr Egan’s report about her job role. The respondent was unable to make 30 October. Councillor Owens also said that the remit of the meeting would not include reference to the job description and evaluation [759]. He further said “However as Clerk she is fully aware of the Council’s policy on job evaluation and that the exercise carried out by One Voice Wales was for comparative purposes only and not binding on the Council nor the Clerk. It was only intended to enable further discussion to take place on the matter and which will be progressed on her return to work.” The claimant’s solicitor said that the report should be provided if the conference call was to go ahead. It was then emailed through [A111-A112]. During the telephone call the claimant was asked to set out in writing what would help facilitate a return to work.

[129]On 14 November 2018 the claimant’s solicitor sent two further letters to the respondent. The first is at [762 - 765]. It said that the claimant’s particular concern was that if the respondent had no ability to sanction individual Councillors, and if there was no means to intervene in unprofessional behaviours then how could the claimant do her role properly. The letter set out 17 steps it was said if were undertaken together with assurances the matters would be monitored and promptly acted upon, the claimant felt she may be able to move towards a return to work. These were, in short form:(i) Continued referral to occupational health for guidance on how to properly manage the claimant back into her role;

(ii) Written acknowledgment that Mr Fox’s behaviour was sufficient that disciplinary action would have been taken against him (had he not resigned);

(iii) A full copy of Mr Egan’s grievance report and the opportunity to potentially request further clarification to which the respondent would be required to respond;

(iv) Written confirmation the respondent would enforce a conduct policy for members of the public during council meetings and the meeting chair would take appropriate action to evict a member of the public in breach;

(v) Weekly meetings with the Committee Chairs;

(vi) An internal Councillor Code of Conduct in relation to interaction with staff and an agreement that breaches would be addressed at Council meetings;

(vii) Copies of all responses provided by Councillors to the Ombudsman be given to the claimant. It was said “Our client is aware from the Ombudsman that there have been some outright denials of events”;

(viii) A written explanation why the job evaluation report had been withheld;

(ix) Carmarthenshire County Council to provide a copy of the previous evaluation;

(x) A formal letter from Carmarthenshire County Council about the earlier evaluation detailing the terms of engagement and persons involved there and in the respondent;

(xi) To see the Job Evaluation Committee’s comparative evaluation;

(xii) Individual written explanations from the Job Evaluation Committee detailing why the earlier evaluation was withheld;

(xiii) Individual written explanations from the Job Evaluation Committee detailing why the claimant had been excluded from the entire staff evaluation process whilst the TSO was in attendance at various meetings including “having a large input into the clerk’s role”;

(xiv) A written explanation from Councillor James why the email of 26 February was sent to the claimant and why he did not go to the Audit Committee meeting on 13 March;

(xv) Full written explanation from the Labour group of their collaboration with a member of the press from Llanelli Online “resulting in significant harassment of our client through numerous malicious emails”; (xvi) Written explanation from Councillor James as to why there was a campaign of hostility directed at the claimant. It was said: “This has been admitted to by Labour Councillor Bob Walpole on 30th November 2017 who confirmed that it stemmed from an email being sent by our client, on behalf of the Mayor, regarding the use of Council facilities for Labour Group meetings. It was also said “Our client then requests the opportunity, if necessary, to scrutinise this explanation with Councillor James in the presence of the full Town Council”; (xvii) Written explanation as to why the claimant was going to be forced out of her position and replaced by Mr Fox.

[130]The second letter [766 – 768] sought confirmation that the pay evaluation would be adopted and backdated to June 2015. It was said: “We would ask that her contract be formally varied to reflect this new position and that arrears are paid to her “grossed up” to place our client in the same position as she would otherwise have been in, had the increase been properly applied for the purposes of tax.”

[131]Responses to the claimant’s correspondence had to go before the full Council. On 13 December 2018 they authorised the response at [779 – 780] of the same date. The letter said, in effect, that the respondent had thought the parties were working towards a round table meeting about supporting the claimant in a return to work. It said the letter setting out the “steps” was a helpful start but that they did not consider written communication alone was the way to resolve the matter. It was said that the respondent could and would offer support including:• The Council had maintained contact during the claimant’s absence;

• Councillor Owens had made welfare visits;

• There had been two referrals to occupational health including to get advice about a potential return to work;

• A phased return to work;

• Part time working;

• Home working;

• Mediation;

• Regular meetings with 3 Committee Chairs who were keen to support the claimant to return;

• Monitoring Officer to provide training to all Councillors on the Code of Conduct and behavioural standards;

• Human Resources Service Level Agreement set up to provide HR advice to the claimant going forward as Clerk;

• Code of Conduct issued by Ombudsman had been approved at the Town Council meeting in November 2018;

• Model Protocol on Member/Officer Relations already approved.

[132]It was said that it was intended this would form the basis of discussions and the claimant would have the opportunity to put her own suggestions forward. In relation to the job evaluation, it was said they “will be happy to open discussions with Melanie via our usual employment procedures.” The letter said the respondent was intending to write to the claimant to arrange a meeting.

[133]The claimant’s solicitors replied on 21 December 2018 [781-782]. The letter asked again for the full grievance report and the earlier job evaluation paperwork. It questioned what the last response in relation to the claimant’s pay and “usual employment procedures” meant, saying it was an evasive response and seemed to be dependent on a return to work. The letter said that to avoid any ambiguity going forward a response on all the individual points would be sensible.

[134]A further Town Council meeting took place on 2 January 2019 [783 – 785]. Councillor Theodoulou started working on who in the Council could respond to what. Councillor Walpole was to liaise with the Labour party members to formulate their response on matters involving their group or individual councillors. The responses were then to come back to full council. A vote was passed that a response be made to as many of the conditions in the letter as possible in a positive way and to encourage the claimant to return to work. Also the Labour group were to meet and provide a response to Councillor Theodoulou and the other Committee Chairs. A further meeting took place on 16 January 2019 [786 – 790]. A draft response to the claimant’s points was circulated, discussed and voted upon. Two of the Labour Councillors, Councillor Morris and Councillor Thomas had already left by this point. On some of the responses the various members declared and interest and then abstained from voting.

[135]On 21 January 2019 the claimant’s solicitors sent a further letter about delay [791-792]. Councillor Theodoulou then provided the respondent’s response on 29 January 2019 [793- 795]. The responses were (again in short form):(i) they would continue to engage with occupational health where required in order to obtain support and advice on a return to work. They already had an OH report which they were intending to discuss with the claimant when they met with her;

(ii) “Lee Fox had been found to have treated the Town Clerk with disrespect and an aggressive approach by an independent investigation by One Voice Wales. It is impossible and inappropriate to speculate on what would have happened to Mr Fox had be not resigned”;

(iii) The grievance report was being sent by post but without the individual statements as they were confidential. It was said “We will be prepared to release these if you gain authorisation from the individuals for us to do so”;

(iv) They would enforce a conduct policy on members of the public attending meetings;

(v) Weekly meetings with the three Chairs was reaffirmed;

(vi) The Model Protocol had been adopted in respect of internal business and council staff;

(vii) “We cannot furnish you with copies of responses provided by Councillors concerned, to the Public Services Ombudsman for Wales as the Council has not received these. Such statements are not included in any information sent to the Council by the Ombudsman”;

(viii) “The full One Voice Wales report was made available to the Council in February 2018. This did not leave sufficient time for the committee to consider the report in detail or for the Council to receive full copies prior to the Town Clerk’s absence which began at the beginning of March. The Chair of Governance considered there was no need for an immediate approach to deal with their report which was requested for comparative purposes only and when it was made clear that it would not be binding on the Council or the Town Clerk”;

(ix) “no report exists in the office of the Town Council and the advice given to the Town Council by Carmarthenshire County Council (CCC) was, I understand, verbal”;

(x) “To our knowledge there are no written terms of engagement with CCC. The person involved form the County Council was Paul Thomas… The lead person from the Town Council was Councillor John James”;

(xi) We are not aware of a written comparative between the Council and the NALC/SLCC evaluations;

(xii) We are not aware of the existence of a CCC evaluation or comparative evaluation, so it was not possible to furnish something that did not exist;

(xiii) The committee took the view that the job evaluation of other staff may have had an influence on the Town Clerk’s evaluation at the time she was seeking a review of her grade, and this was why she was not involved in discussions. “We can find no record of Lee Fox’s involvement with the evaluation panel and therefore cannot comment on this”;

(xiv) “The email from Cllr John James was sent on behalf of Labour members and was not agreed by or endorsed by the Town Council. The Council was not involved in any decision-making process or resolution in relation to this and your client is therefore advised to approach Cllr John James and the Labour Group directly for an explanation. However, the Town Council did become involved after Melanie raised a grievance on receipt of that email and immediately referred the grievance to the Audit and Resolutions Committee who investigated the issue and found no evidence to support the substantive complaints in the email. The Local Government Act prevents Councillors taking action of a disciplinary nature against other councillors. The only recourse available to the Council was to refer the matter to the Ombudsman which the Chair of Governance and Personnel and the Mayor duly did as part of their duty of care.”

(xv) The Town Council was not involved in any decision making in relation to this matter and again it was suggested the claimant seek an explanation directly from the Labour Group. They also confirmed they had made a report to the press regulator; (xvi) “The Town Council as the Town Clerk’s employer was not involved in this issue in any way. Please take this up with the Labour Group if you need further information”; (xvii) “We can assure you that there is no Council resolution to this effect. As far as we are aware there has been no involvement in anything of this nature by the Council as your client’s employer. If, as stated, the Town Clerk has evidence of any individual or individuals making such a statement she should take this up directly with them.”

[136]On 1 February 2019 the respondent sent the claimant a copy of Mr Egan’s grievance report without the witness summaries (the claimant only had sight of the latter during these proceedings). On 5 February 2019 the respondent also wrote to the claimant to try to arrange a meeting [796-797]. On 11 February 2019 the claimant wrote resigning with immediate effect [A78-82]. The letter says her resignation was in response to a serious of occurrences culminating in the letter received by her solicitor on 30 January 2019 and receipt of the hard copy of Mr Egan’s grievance report on 1 February 2019. We return to what it says about the claimant’s reasons for resigning in our analysis of the claimant’s constructive unfair dismissal claim below. The relevant legal principles Protected Disclosure

[137]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.”

[138]Section 43C provides: “Disclosure to employer or other responsible person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person.

[139]Section 43F provides that a disclosure can be a qualifying disclosure if made to a prescribed person and the worker reasonably believes that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and that the information disclosed, and any allegation contained within it, are substantially true.

[140]There are therefore a number of requirements before a disclosure is a qualifying disclosure. First, the disclosure must be of information capable of tending to show one or more of the types of wrongdoing set out at Section 43B. In order to be such a disclosure “It has to have sufficient factual content and specificity such that it is capable of tending to show one of the matters in subsection (1)” (Kilraine v London Borough of Wandsworth

[2018] ICR 185

). Determining that is a matter for evaluative judgment by the Tribunal in light of all of the facts of the case. The question is whether, taking into account the evidence as to context, the information is “capable” of satisfying the other requirements of the section i.e., could a worker reasonably believe that it tended to show one of the specified matters (Twist v DX Limited UKEAT0030/20).

[141]Second, the worker must believe the disclosure tends to show one of more of the listed wrongdoings. Third, if the worker does hold such a belief it must be reasonably held. Here, the worker does not have to show that the information did in fact disclose wrongdoing of the particular kind relied upon. It is enough if the worker reasonably believes that the information tends to show this to be the case. A belief may be reasonable even if it is ultimately wrong. It was said in Kilraine that this assessment is closely aligned with the first condition and that: “if the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable to tending to show that listed matter, it is likely that his belief will be a reasonable belief.”

[142]Fourth the worker must believe that the disclosure is made in the public interest. Fifth, if the worker does hold such a belief, it must be reasonably held. The focus is on whether the worker believes the disclosure is in the public interest (not the reasons why the worker believes that to be so). The worker must have a genuine and reasonable belief that the disclosure is in the public interest but that does not have to be the worker’s predominant motive for making disclosures: Chesterton Global Ltd v Nuromhammed [2018 ICR 731. In particular it was said “I am inclined to think that the belief does not in fact have to form any part of the worker’s motivation – the phrase “in the belief” is not the same as “motivated by the belief”; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it.”

[143]In Chesterton it was also said that there was no value in seeking to provide a general gloss on the phrase “in the public interest” but that the legislative history behind the introduction of the condition establishes that the essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest. The question is to be answered by the Tribunal on a consideration of all the circumstances of the particular case, but relevant factors may include:(a) the numbers in the group whose interests the disclosure served

(b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed;

(d) the identity of the alleged wrongdoer.

[144]It was also said that the broad intent behind the legislation is that workers making disclosures in the context of private workplace disputes should not attract the statutory protection accorded to whistleblowers. However, there may also be cases where the disclosure is of a matter that relates to an interest that is personal in character but there are nevertheless features of the case that make it reasonable to regard the disclosure as being in the public interest as well as in the personal interest of the worker. The question is to be answered by the Tribunal on a consideration of all the circumstances of the particular case.

[145]It was said in Dobbie v Paula Felton t/a Feltons Solicitors

UKEAT/0130/20/OO

that “Generally, workers blow the whistle to draw attention to wrongdoing. That is often an important component of why in making the disclosure they are acting in the public interest.” In Simpson v Cantor Fitzgerald Europe

[2020] EWCA Civ 1601

Bean LJ drew a distinction between the claimant making disclosures about being deprived of commission he thought was rightfully his (not a protected disclosure) as opposed to making a disclosure about commission containing information which in the individual’s actual and reasonable belief tended to show malpractice such as the commission of a regulatory offence (which if established was likely to have met the public interest test).

[146]The Tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker. The Tribunal must recognise that there may be more than one reasonable view as to whether a particular disclosure was in the public interest. Sixth, the disclosure has to be made to an appropriate person. Whistleblowing/ Protected Disclosure detriment

[147]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).

[148]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

[149]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 that “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 whistleblower.” 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

[150]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.”

[151]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.”

[152]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

[153]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).

[154]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?

(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

[155]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.”

[156]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.) There seems to be something of a conflict of authority about whether this test should be broken down into two separate questions (and if so which order they should be addressed in) or whether it is one unitary test. (See for example, on the one hand Hilton v Shiner Ltd

[2001] IRLR 727

EAT and (Abbey National Plc v Fairbrother UKEAT/0084/06RN which favour somewhat differing two stage approaches and more recently the Court of Appeal in IBM United Kingdom Ltd v Dalgleish

[2017] EWCA Civ 1212

, which hold there should be a unitary approach on the basis that the concepts are intertwined). It seems unlikely, in practical terms however, that whichever approach is adopted would make a difference to the analysis of this case.

(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) The employee must not waive the breach or affirm the contract by delaying resignation too long.

(6) 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.

(7) 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 that he or 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.

(8) 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?

[157]There is a body of case law which talks about the approach that should be taken where the conduct said to lead to a breach of the implied duty involves the exercise of a discretion or the making of a sort of decision which should be treated in the same way as the exercise of a discretion. In IBM Holdings Ltd v Dalgleish the Court of Appeal drew a distinction between cases where the employer is exercising an express or implied discretionary power and cases where the concern is simply with the conduct of the employer. In the former category the discretion is required to be exercised in accordance with the duty of mutual trust and confidence, but the test applied is the rationality of the employer’s exercise of its contractual discretion, applying Braganza v BP Shipping Ltd

[2015] UKSC 17

. In the latter category the test is that formulated in Woods as further explained in Malik.

[158]An example of this is Abbey National v Fairbrother in which it was said employers have a measure of discretion in deciding how to conduct a disciplinary procedure or a grievance procedure. It was held an employer must not act irrationally or perversely in the course of such procedures. They must not take account of irrelevant material or fail to take account of relevant material. They must not take decisions that no reasonable employer would take. It was also said that the conduct of the grievance procedure should also be looked at as a whole and only if it has been conducted in a manner which no reasonable employer would have conducted it can it be said the employer did not have reasonable and proper cause for his conduct. In Blackburn v Aldi Stores

[2013] IRLR 846

EAT it was held that a failure to adhere to a grievance procedure is capable of amounting to or contributing to a breach of the implied term of trust and confidence but whether it does is a matter for the Tribunal to assess on the facts. For example, the fact that an indicative timetable is not met will not necessarily contribute to or amount to a breach of the term of trust and confidence. On the other hand, a wholesale failure to respond to a grievance may amount to or contribute to, when assessed against the relevant test.

[159]In Glendale Managed Services v Graham and others

[2003] EWCA Civ 773

it was held that an implied term in contracts of employment that an employer will not treat his employees arbitrarily, capriciously or inequitably in respect of matters of pay may be seen as being simply one part of the more general obligation not to destroy the mutual trust and confidence between employer and employee. A similar observation was made by the Employment Appeal Tribunal in GEC Avionics Ltd v Sparham

EAT/714/91

that the duty, when dealing with pay, not to behave arbitrarily, capriciously or inequitably is an illustration of the duty of good faith and fair dealing which underlies the mutual trust that has to exist between employer and employee. Likewise case law such as Clark v Nomura International Plc [2000] IRLR also establishes that in respect of a discretionary power to award bonuses (for example) the test is also one of irrationality or perversity which is equivalent to acting in a way which no reasonable employer would act in the circumstances in question.

[160]The claimant relies on three other claimed implied terms in respect of her constructive unfair dismissal claim. It did not appear to the Tribunal that evaluating these would improve the claimant’s position when compared to considering her claim for breach of the implied term of trust and confidence which incorporates the same factual complaints the claimant makes for other alleged, narrower in ambit, implied terms. As such this summary of the legal principles has not covered these.

[161]If it is established that the resignation meets the definition of a dismissal under section 95(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

[162]The claimant seeks to bring contractual claims in respect of a breach of contract wages claim and a constructive wrongful dismissal claim. 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.

[163]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. The purported separate breach of contract wages claim we address further in our discussions and conclusions below. Section 38 of the Employment Act 2002

[164]The respondent concedes they failed to give the claimant a statement of her employment particulars. Under section 38 of the Employment Act 2002 if the claimant succeeds in one of her other qualifying complaints the Tribunal must (unless there are exceptional circumstances which make an award or an increased award unjust or inequitable) make an award of at least 2 weeks’ pay and may if it considers it just and equitable increase that to 4 weeks’ pay (subject to the statutory cap on a week’s pay). Discussion and Conclusions “Ordinary” Constructive Unfair Dismissal The claimant’s salary upon appointment January 2013 – the respondent failed to ensure the claimant’s salary was commensurate to her position (regarding either other Town Clerks in similar Councils or with reference to the standardised NALC/SLCC salary benchmarking guidance)

Discussion and Conclusions

[165]We address first the claimant’s ordinary constructive unfair dismissal claim, addressing each particular complaint made in turn in the list of issues. Where they overlap, we sometimes group these together. This first complaint refers to the start of the claimant’s employment with the respondent on a salary point that the claimant, an educated, experienced and qualified lawyer, had contractually agreed with them. The claimant did not, for example, negotiate with the respondent about her pay pre-employment. It therefore seems somewhat of an oddity to suggest that the respondent agreed the term with the claimant and yet were already in breach of the implied term of trust and confidence.

[166]But in any event, the respondent’s setting of the salary scale on appointment was not in bad faith or capricious or irrational. It was based on the GLPC Scheme used by Carmarthenshire County Council and used for their previous Town Clerk. The respondent was not obliged to use the NALC Agreement. They were not members of NALC or signed up to its terms. It was not irrational to use an alternative pay scheme such as GLPC.

[167]The Tribunal accepts that once the claimant brought legitimate concerns about her pay to the respondent, and once the respondent committed into evaluating her pay, then the respondent had to conduct themselves in a manner which was not going to harm trust and confidence. We return to that below. But that does not, in our judgment, become an obligation on the respondent as at the start of the claimant’s employment, when the claimant had just agreed that very pay term with them, to have unliterally on their own accord initiate a pay evaluation process for her. As the respondent says, there is no general obligation on an employer to treat its employees in a reasonable manner. Updating the claimant’s job description February 2015 to July 2017 the respondent persistently delayed in engaging with the claimant in respect of updating her job description, knowing that this would (or should) have fed into her salary benchmarking

[168]Updating the job description was the precursor to the pay evaluation, whatever pay evaluation method was going to be used. Even taking into account that the respondent’s Councillors are, in effect, part time volunteers, they were also the claimant’s employers with the responsibilities that entails. They chose to take on the task of updating the job descriptions as opposed to instructing someone external to do so. They were at liberty to make that choice, and the Tribunal can see the sense in the Councillors being involved the process of determining what the staff in each role profile should be doing for the Council. However, in doing so they took on the responsibility of ensuring that it happened within a reasonable timescale and was undertaken professionally.

[169]The Tribunal finds there was unreasonable delay on the part of the respondent in undertaking and completing the job description process. The need to look at job responsibilities and pay scales was accepted by the Civic Committee in February 2015. The claimant’s job description was not agreed until July 2017; well over two years later. 169. It took from February 2015 to November 2015 to decide to set up the Job Evaluation Committee. That was too long. It was within the respondent’s discretion to decide to look at all the job profiles as opposed to prioritising the claimant’s, or vice versa. It was also within their discretion to decide to work from the bottom up rather than top down; there are advantages and disadvantages to either approach. However, the time taken remained unreasonable.

[170]The first four draft job descriptions for office staff were not sent to Mr Thomas until June 2016. The claimant was then not given the draft updated job description for a discussion about it until October 2016 (nearly a year after the Job Evaluation Committee was set up). The next meeting, at which amongst other things, the claimant then handed over some proposed amendments, was not until January 2017. There was nothing inherently wrong in the claimant seeking to make some amendments to her own job description. The anticipated meeting on 15 February 2017 did not go ahead for the claimant, so she was not seen again until 30 March 2017.

[171]The respondent’s re-amended job description was then sent to the claimant on 18 April 2017 together with the proposed pay change. The job description had not been agreed with her in advance and, as such, that then delayed things further. The claimant pointed this out in her pay appeal. That was a right of appeal that the respondent had given her to exercise so there is nothing improper in her doing so. It seems to the Tribunal that, in part, the delay in agreeing the claimant’s job description with her got caught up in some wider hostility towards the claimant about her persistently pushing for the NALC Agreement to be used as the method of evaluation and for her pressing for her pay evaluation to be done, and prioritised. It contributed, for example, to Councillor James just giving the claimant the formal letter of 18 April 2017 as opposed to having a discussion with her about it. But the job description was always going to be needed whatever evaluation method was used. The respondent did not have the skills or experience required to keep separate any issues they may have with the claimant separate from the task of setting a job description (or indeed the wider job evaluation). The delay was then compounded by the fact it was election time.

[172]It took the appointment of Councillor Owens as new Mayor and chair of the Civic Committee to get the claimant’s job description moving towards agreement. After the Civic Committee meeting on 12 June 2017 the claimant met promptly with Councillors Shepardson and Thomas and agreement was reached subject to final approval of the Civic Committee on 10 July 2017. Following Councillor Owens taking over it was promptly resolved (which of itself tends to suggest the claimant’s stance on amendments was not unreasonable) but that does not mean that the whole period of dealing was not unreasonable. Councillor Owens accepted in evidence (he had been on the Job Evaluation Committee throughout) that it had overall taken too long. The delay was unreasonable, was without proper cause and was conduct that damaged trust and confidence bearing in mind it was intrinsically linked to the claimant’s pay review. The respondent argues that there were numerous roles to evaluate. There were however only 12 jobs to go through, and some of those were duplicates such as the groundsmen. It was also a process of updating job descriptions. They were not all being drafted from scratch. The grievance 12 March 2017 – the respondent failed to engage with the claimant in any meaningful manner in respect of the grievance she raised on 12 March 2017. They failed to act reasonably towards her in promptly investigating the grievance and in progressing this to a conclusion, contrary to best practice and the Acas code. The respondent did not release to the claimant the full investigation report into her grievance until February 2019 despite having commissioned it in July 2017 and receiving it themselves in or around September/October 2017. Despite outwardly suggesting that they intended to try and resolve the grievance issues, the respondent did nothing to assist the claimant in resolving the matters raised. When the claimant eventually received both of Mr Egan’s reports, she concluded beyond reasonable doubt that the respondent had contrived to deliberately keep both out of her possession because they knew that neither report was favourable to them. In doing this, the respondent cannot have intended to resolve either matter or else they would not reasonably have adopted this stance. The claimant avers that a reasonable employer who was abiding by its implied duty of explanations of delay and the ongoing failure of the respondent to address the issues showed no desire to resolve matters. Furthermore the respondent’s repeated failure to address these issues was contrary not only to the expressed desires of the claimant to INVESTIGATING THE GRIEVANCE

[173]The Tribunal does not find that the respondent initially failed to engage with the claimant in a meaningful manner in respect of her grievance or in promptly investigating it, set within the context and circumstances at the time. Councillor Theodoulou took advice including from an experienced former Clerk and prepared a report for the full council. He anticipated that Councillor James would declare an interest and leave. He could not ultimately make Councillor James do so. In any event we accept Councillor Theodoulou’s recollection that Councillor James did not speak. The claimant was the Town Clerk. She knew full well that decision making power lay in the hands of the full Council or an authorised committee. She said she wanted someone to take action and yet on the other hand seems to say that Councillor Theodoulou should have kept everything confidential. It is said that Councillor Theodoulou should have taken professional advice from One Voice Wales or taken advice from the monitoring officer. He was faced with a difficult situation with a complaint, in part, involving the Mayor. The criticisms made of him are in the Tribunal’s view a counsel of perfection made with the benefit of hindsight. We do not consider he acted unreasonably faced with the situation he was in.

[174]The full council decided to appoint the Special Panel, deliberately made up of cross-party representation. Whilst there appeared to be some initial confusion about whether the claimant’s complaint was a formal one or not, that was quickly ironed out. The Special Panel actually took steps to look into the matter and produce their interim report relatively quickly on 19 April. The date of the final reports is not known or definitively in which order they were produced. What went wrong with the Special Panel process, however, was a lack of clarity in its terms of reference and what would happen once the report was given. It also was not given to the claimant despite the fact that it was her grievance. There was also some disruption caused by the election, which is understandable. Councillor Owens, in his new roles, then checked with the claimant that she wished to continue with her complaints. We did not consider there was anything inappropriate in him checking that with her given the change in personnel and the change in power base following the election. When the claimant said she did with to pursue it, he did not seek to dissuade her but took steps, via the Civic Committee to seek some advice from Mr Egan. He then met with Mr Egan on 13 July and Mr Egan was instructed on 21 July to independently investigate the grievance. The claimant does not dispute that it was appropriate to instruct Mr Egan. Thereafter production of the grievance investigation report lay outside the Council with Mr Egan, albeit Councillor Owens facilitated setting up investigation meetings. Some delay was then caused by getting witness summaries out to individuals and approved and sent back to Mr Egan who then produced his report by 9 October 2017.

[175]There was then a process of the Civic Committee approving the grievance recommendations before them being provided to the claimant and the meeting being held with the claimant on 30 November 2021. The progression of the grievance through to the meeting on 30 November 2021, within its prevailing context, was therefore not unreasonable. NOT GIVING THE CLAIMANT THE FULL REPORT

[176]However, the Tribunal does find that the respondent acted unreasonably and without proper cause in not providing the claimant with a copy of the full grievance report (including the witness summaries/statements and the appendices which included things like the Special Panel report which the claimant had not seen) when first releasing Mr Egan’s report to the claimant and thereafter until it was all finally disclosed, particularly bearing in mind the claimant was asking to see the full report. The respondent appears to have failed to appreciate that the claimant’s grievance was her grievance. Unless (which did not occur in this case and is a relatively unusual occurrence) a particular situation has arisen whereby a witness gives evidence to a grievance investigation under conditions of confidentiality, it is the Tribunal’s industrial experience that it is standard practice to release a full grievance report to the individual bringing the grievance, including witness summaries/statements. This reflects the fact it is their grievance that is being addressed and they are entitled to understand what conclusions have been reached and why. To not provide the full report also removes from the individual the opportunity to, for example, lodge any meaningful appeal. Mr Egan, the respondent’s own witness, accepted in evidence that it would ordinarily be good practice for the employee to receive the full grievance report unless there was for example a data protection reason and he said that he did not understand at the time that the respondent was not intending to release the full report to the claimant.

[177]The respondent says the full report was not provided to the claimant due to the amount of paperwork in the full report, concerns about data protection and the fact that the Civic Committee felt the executive summary covered relevant matters. However, to say the claimant should not be burdened with paperwork, is simply paternalistic and inappropriate; it was her grievance, she was a trained lawyer and the Town Clerk. Data protections concerns should not be a barrier. As already set out above it is standard and usual practice in grievances for the full report to be provided unless there is a specific confidentiality/anonymity issue. Otherwise, that the statement/summary will form part of the report is covered with the individuals at the individual evidence gathering stage; they know they are giving information for the purpose of the grievance investigation. There is no evidence anyone did so under agreed conditions of confidentiality. They were told by Mr Egan their summaries would be included in the report. Finally, it is not the Civic Committee’s role to decide what they think is best for the claimant or themselves decide that the summary was a good enough representation. It was her grievance and they, in effect, dispossessed the claimant of her own grievance in not providing full disclosure to her. RESOLVING THE GRIEVANCE

[178]In terms of addressing the issues raised in the grievance, the Tribunal does not accept the wholesale allegation that the respondent did nothing in to assist the claimant in addressing the issues. There are, however, some aspects where the respondent’s conduct was lacking. The claimant’s grievance to a sizeable extent was about the actions of Mr Fox. Both the Special Panel and Mr Egan found that there was a disciplinary case to answer. A misconduct process could not happen because Mr Fox resigned. Thereafter the respondent did not allow Mr Fox to rescind his resignation and he was not shortlisted when he applied for the next TSO role. That part of the grievance was addressed to the extent the respondent could.

[179]The claimant’s grievance also complained about a lack of support in dealing with Mr Fox (particularly by Councillor James) and the way in which Mr Fox was allowed to deal directly with the committees and undermine her authority as well as other allegations about what she saw as bad feeling towards her. Mr Egan concluded that Councillor James had good intentions in seeking a mediated solution between the claimant and Mr Fox but that things became complicated and produced uncertainty and a lack of clarity about how to take things forward, resulting in frustration all round. He recommended a protocol be in place for working arrangements between officers and members to try to prevent the situation arising where someone such as Mr Fox could have a direct line into a committee circumventing the claimant. He also recommended a set of employment policies be drafted and adopted. These were all recommendations that the respondent accepted. Action had therefore been taken based on Mr Egan’s findings.

[180]The claimant’s grievance also complained about the handling of the job evaluation, including her exclusion from the process in respect of other staff. Mr Egan said that the time delay and the exclusion of the claimant would appear to be difficult to justify and that the respondent needed to be transparent with the claimant about the process. He recommended that there be a policy on job evaluation and that staff should be given the detailed results of the process and the right of appeal. The Tribunal does accept the respondent failed to assist the claimant in progressing this aspect of her grievance through to a conclusion. Whilst the respondents on the face of it addressed this part of the claimant’s grievance by telling her that Mr Egan would conduct a pay evaluation using the NALC Agreement and she would have the right of appeal; when it came down to it, they did not honour those things. We return to this further below.

[181]In summary therefore, other than the pay evaluation, the respondent did by and large address the issues raised in the grievance. They did not, however, give the claimant a copy of the full report. They also did not completely finalise the grievance process. You cannot resolve a grievance if the individual concerned has not seen the full report. The claimant was not sent a final grievance outcome letter or offered the right of appeal. It was unreasonable on the part of the respondent, having said they were going to adopt such a process, to fail to see it through to a complete conclusion, albeit that is not something that the claimant was herself chasing, other than to see the complete grievance report. WHY THESE THINGS HAPPENED

[182]The Tribunal does not find that the respondent contrived to deliberately keep the full grievance report out of the claimant’s possession because they knew it was not favourable to them. The executive summary provided to the claimant was unfavourable to the respondent, but they provided it and agreed to Mr Egan’s recommendations. In terms of why the executive summary was produced, the Tribunal is satisfied that Mr Egan was asked, on behalf of the Civic Committee, to produce an executive summary for circulation amongst Council members, to reduce the size of the document with all its appendices. The whole report itself was then available for reading in the office. The respondent then fell into error in not giving the claimant full access.

[183]The Tribunal considers and finds that initially the respondent did this because they genuinely mistakenly thought the executive summary would be enough for the claimant. When the claimant then asked at the meeting on 30 November to see the full report the Tribunal finds that the respondent did not give it to the claimant partly because of a mistaken but genuinely held belief that it would give rise to data protection considerations to release to the claimant what individuals had specifically said. It is also likely that they wanted to minimise the risk of any more bad feeling being stirred up at a time in which the political situation remained very difficult. It was the time at which Councillor Walpole had confirmed there was anger at the claimant in the Labour camp for having sent the email about the room booking. They were aware the claimant was not someone who was likely to let things go. It was also still thought, bearing in mind their lack of experience in grievance processes, that the claimant had been given enough information to understand the conclusions and recommendations. They failed to understand that fundamentally this was the claimant’s grievance.

[184]It was alleged during the hearing before us that the respondent had sought to keep evidence from Mr Egan and/or that Mr Egan had been asked to remove content or to prepare the executive summary in a certain way to keep information from the claimant. We do not find it established that evidence was deliberately kept from Mr Egan. Councillor John told Mr Egan what had happened with Councillor Mitchell (without naming her). Mr Fox did not resign until after Councillor Owens had seen Mr Egan. The most he can therefore be criticised for is not going back to say what Mr Fox had said when resigning. We considered that was a counsel of perfection made with the benefit of hindsight. The other evidence about any plan to replace the claimant with Mr Fox reached Councillor John later on. We also do not find it established that Mr Egan was asked to remove information from the report so that the claimant would not see it. The executive summary was a summary. We accept that Mr Egan did not know the respondent was not going to give the claimant a full copy. It is, however, understandable the claimant was suspicious about what had happened, particularly bearing in mind the delay in giving the full report to her.

[185]The respondent’s formal completion of the grievance then drifted away because they thought they had progressed it to a resolution. The respondent until then had been following Mr Egan’s lead but that lead on the grievance had itself drifted away as Mr Egan would have thought his role was complete. The final steps in sending a final outcome letter and offering the formal right of appeal then became forgotten about as they thought it was all finalised. To address a final point made by the claimant, the Tribunal cannot see how it can be said the respondent’s actions ran contrary to the express recommendations of occupational health. The Conduct of some Labour Councillors From February 2017 to March 2018 the Claimant was undermined by Labour Councillors – August 2017 Councillor Walpole and Councillor Thomas called an extraordinary council meeting in order to intimidate the claimant From August 2017 to November 2017 James, Thomas, Walpole and Linda Edwards were the main Labour Councillors who exerted pressure to reinstate Mr Fox

[186]We do not find that Councillors Walpole and Thomas called the meeting (or to be more accurate tried to call the meeting) with the intention of intimidating the claimant. They were trying to call the extraordinary council meeting because they wanted to get Mr Fox reinstated. That had just become, and continued to be for a long time, a key aim of some of the Labour Councillors.

[187]We do not consider the aim of getting Mr Fox reinstated was about harming or upsetting the claimant. They just wanted Mr Fox reinstated. Some Labour Councillors thought Mr Fox, in resigning, had been a victim of injustice. A key factor was that they thought he was a victim of the Independent group, particularly at the hands of Councillor Theodoulou. The claimant would also have been seen as contributing to the demise of Mr Fox through her complaints about him, but that does not mean that it was all about targeting her. They also thought, unlike some others, that Mr Fox had been good at his job. Further, it is likely they had loyalty towards him as the husband of one of their Councillors. It is also likely that the Mr Fox situation became a part of the wider power struggle between the Labour group and the Independent group. It became a means by which some of the Labour Councillors sought to challenge, undermine, and embarrass the now controlling Independent group, and Councillor Owens as Mayor.

[188]The claimant said in evidence that calling the EGM must have been aimed at her because the councillors were bypassing the usual procedure and not going via her as Town Clerk. We do not, however, agree that this means the purpose of their actions was to intimidate the claimant. They thought that people like Councillor Owens, the monitoring officer, and the claimant as Town Clerk were all frustrating their efforts to have Mr Fox’s resignation discussed and voted on at a meeting, hence their attempt to take control by calling an EGM. It also was part of a power struggle the Labour group of councillors had with the Independent group. It is likely the Labour group, even if unfairly, saw the claimant as being part of that problem and allied to the Independent group. Hence again that they were trying to take direct control of the agenda. Further it was said at the time, even if later withdrawn by Councillor Walpole, that they considered the claimant may have a conflict of interest given her own complaints about Mr Fox. It is likely that was another reason for the way in which they went about it

[189]That all said, we do find that it is likely that the Councillors in question would not have been overly concerned that one of the potential knock-on consequences was that the claimant would feel intimidated or undermined by their efforts regarding Mr Fox. The impact of that on the claimant was collateral damage that it is likely they would not have felt averse to. But that does not make it the purpose of their actions in calling the extraordinary meeting.

[190]The reasons why upsetting the claimant may have been seen as acceptable collateral damage are likely to have been multifactorial. Firstly, they probably thought it was the kind of challenge she should expect to face in her role as Town Clerk. Secondly, as stated, it is likely some Labour Councillors saw the claimant as affiliated to the Independent group. Thirdly, the claimant’s relationship with some Labour Councillors had become increasingly strained for some time. There were, in turn, a variety of factors feeding into this. The handwritten notes on the initial pay evaluation demonstrate a sense of increasing frustration with the claimant persistently seeking her pay evaluation being undertaken under the NALC Agreement, in her chasing her pay review and asking that she be treated as an individual case with some urgency. The notes also give a sense of some residual resentment about the claimant having previously applied for a job at Llanelli Council.

[191]On the evidence before us, we also find that it is likely that prior to the election there was some contemplation by some Labour Councillors such as Councillor James and Councillor Kenneth Edwards as to the potential for Mr Fox to take over as Town Clerk. Mr Fox had a direct route of communication to some of them. He was attending meetings and engaging with the Job Evaluation Committee. People describe him as being someone who would proffer opinions and views. Some Councillors thought Mr Fox was doing a good job. He was the husband of a Labour member who was going to stand for election. The Job Evaluation Committee was concerned with the claimant’s job description as Town Clerk. It is likely that got tied up in wider discussions about what the job should entail, whether the claimant was doing what they wanted her to do, whether they thought she was doing a good job, and what Mr Fox might have to offer instead. It is likely some thought he would do a better job.

[192]That was all at a time, as we have said, that it seems likely there was a growing sense of dissatisfaction by some Labour Councillors to the claimant’s persistence about her pay, about what she saw as her role and her responsibilities. They felt she was pushing for things or dictating how they should be done when they considered it was the claimant who worked for them. It is likely all these things were feeding into each other. . 193. However, we do not consider that after the election the prospect of Mr Fox taking over as Town Clerk was a goal by the Labour group going forwards. The election outcome is not something they would have predicted. It was a sea change. They had lost the power base, and by then had other things to concern themselves with, including even getting Mr Fox reinstated as just TSO. To suggest that as a minority party they thought they would both get Mr Fox reinstated, then oust the claimant and appoint Mr Fox a Town Clerk seems unrealistic post the election result. However, that history is relevant to what had been happening in relationships in the Council in the months prior to August 2017 and why some Labour Councillors would not have been overly troubled by the prospect of the claimant being upset as a side effect of their actions regarding seeking the reinstatement of Mr Fox.

[194]That the claimant had made her own complaints about Mr Fox and lodged her grievance would also have been relevant to those Labour Councillors who were probably unconcerned about the prospect of the claimant being upset about their efforts to get him reinstated. It would have fed into a sense of there being no ”love lost” towards the claimant. But we do not consider this means that the claimant was seen as the villain and the main source of Mr Fox’s perceived misfortune, when compared to the situation with Councillor Theodoulou, for example. The Special Panel, whilst unable to reach an ultimate conclusion, had already agreed there was some inappropriate conduct towards the claimant by Mr Fox (which included a Labour Councillor, Councillor Thomas in that decision making). But it was also conduct which they felt was part of a wider picture of a breakdown in communication and the relationship between the claimant and Mr Fox which they had felt the claimant had contributed to in her management style. It therefore was in turn tied up with their own rumblings (even if the claimant would say such rumblings were unfair) as to the claimant’s own performance.

[195]Ultimately we therefore do not find that the attempt to call the extraordinary general meeting to seek the reinstatement of Mr Fox was called in order to intimidate the claimant. Thereafter, there was ongoing pressure by some Labour Councillors to get Mr Fox reinstated, most notably at the meetings on 21 September 2017, 13 October 2017 and 13 November 2017 and the efforts to get Mr Fox shortlisted and appointed to the new TSO position. For the reasons already given, however, we do not consider that the purpose of that was to mount an attack on the claimant. It was all fundamentally about supporting Mr Fox and the political battle post-election between the Labour group and the Independent group where the claimant was acceptable collateral damage. Some Labour Councillors also became even more upset when the claimant sent about room bookings for meetings. That would have again fed into that sense that the claimant was favouring the Independent group and again contributed to a lack of concern about the claimant becoming upset.

[196]The claimant also relies on the conduct of Councillor Linda Edwards on 30 August 2017. On the evidence before us, we find that it did happen as the claimant describes (and Councillor Owens accepted it had been reported to him at the time by Ms Loudon). We did not hear from Councillor Linda Edwards herself. We accept it was borne of the strength of feeling at that time about Mr Fox and the wish for the meeting to go ahead, the views held about the claimant, as above and a lack of particular concern about upsetting her. However, it was an inappropriate and intimidatory way to speak to the claimant. That conduct was without reasonable and proper cause and was likely to damage mutual trust and confidence. On 21 September Mr Fox and Labour Councillors allowed to heckle and jeer at the claimant, intimidation

[197]We find that at the meeting on 21 September 2017 much of the conduct was directed at Councillor Owens as Mayor and now, if even in an unofficial sense, as head of the Independent Councillors. It was most likely part of a Labour group strategy, having lost control of the Council post-election, to embarrass, discredit and undermine him and the now controlling Independent group and to try to make him and them look like they did not know what they were doing. It was a political battle ground. It was also particularly charged because Councillor Owens was refusing to allow Mr Fox’s resignation to be discussed which was an issue of importance by itself to some of the Labour Councillors but also became a continuous theme of that wider political battle.

[198]The claimant, at times, became caught in the cross fire of that dynamic which had become even more charged following the claimant, on Councillor Owens’ instruction, having sent the email about the booking of rooms for group meetings. It was clearly an incredibly difficult experience for various individuals involved that day and it is understandable that both the claimant and Councillor Owens would have taken away from it their own personal perspectives that they were the one being targeted. This is why Councillor James’ comments about why Councillor Owens was seeking advice from the claimant (to suggest Councillor Owens did not know what he was doing), was perceived subjectively by both Councillor Owens and the claimant to be aimed at them.

[199]The claimant was, at times, caught in the cross fire for various reasons. In part, it was because she was doing her job as Town Clerk to advise the Mayor (which Councillor James as the former Mayor himself would have well known). The claimant (even if unfairly) was also seen as affiliated to the Independent group. There was also some instances at the meeting where there was conduct more personally directed at the claimant. In particular, Councillor Thomas’ complaint about the hotel booking (which appears directed, for different reasons at both the claimant and Councillor Owens), Councillor Thomas’ complaint about the colour of Councillor Morris’ meeting papers and Councillor Linda Edwards picking at grammatical points in minutes.

[200]The conduct that was focused on the claimant was conduct which was without reasonable and proper cause. We are satisfied that the points were not taken in their own genuine sake but as a means both to pick on the claimant (as well as being part of the wider political battle) and was conduct likely to damage mutual trust and confidence.

[201]The actual heckling and jeering at the meeting came from members of the public and not Labour Councillors as alleged. It is therefore not something that we find the respondent was liable for. We are satisfied that Councillor Owen did try to regain order at the meeting and ultimately adjourned the meeting. It was therefore dealt with appropriately. In or around 26 February 2018 Councillor James and others alleged that the claimant had sanitised minutes and removed them from the website

[202]The situation regarding Mr Fox had continued since September 2017 as did the rift in Council between the Labour group and Independent group. It appears the stated commitment in the Civic Committee meeting of 11 December 2017 to draw a line in the sand and move on was ineffective. Mr Fox was still pursuing complaints about the shortlisting criteria. The situation between Mr Fox, the RNLI and Councillor Mitchell blew up and seems to have caused extensive additional bad feeling with the claimant being caught in the cross fire and accused of having taken sides with Councillor Mitchell/ the “Independent camp”. That was then the background for the Labour group email to the claimant of 26 February 2018.

[203]The Tribunal does not agree with the respondent’s assertion that the email of 26 February was not a detriment to the claimant. It accused the claimant of absurd sanitisation of minutes (regarding Councillor Mitchell) to the point of effective misrepresentation. It also accused the claimant of omitting alleged adverse comments also made by Councillors Theodoulou and Stephen James again about Mr Fox. It accused the claimant of preparing poor agendas and not displaying an acceptable standard of competence. It potentially accused the claimant, as a qualified solicitor, of a criminal offence relating to the retrospective manipulation of minutes. It greatly upset the claimant and her personal and professional integrity. It was reasonable for someone in the claimant’s position to regard it as hurtful and a detriment.

[204]They were allegations without reasonable and proper cause; the subsequent Audit Committee investigation by the respondent found as such. Even if they were not allegations that were sanctioned by the full Council, it was conduct by the Labour Councillors involved, standing in the shoes of the being the claimant’s employer, that was likely to harm mutual trust and confidence. The respondent in these proceedings does not deny they are liable for that conduct. The fact that it was not the view of the entire Council or that the Chairs Committee and the Audit Committee took prompt action in calling Councillor James to account, or that the Audit Committee later found it unwarranted, or that it was reported to the Ombudsman, does not prevent it causing the harm that it did at the point in time that it happened. The Labour Councillors concerned never explained their actions or apologised, and indeed Councillor John James just declined to continue to cooperate with the Audit Committee. This left it hanging over the claimant and left her with her ongoing sense of unease about whether she could safely be in work and what might happen next. The pay evaluation report February 2018 – The respondent having committed to seeking an independent assessment of the claimant’s salary first obtained a report in February 2018 but failed to increase her salary in line with the recommendation prior to her resignation; the claimant was entitled to assume she would be receiving a pay rise (including a back dated pay rise) based on the respondent’s actions February 2018 to October 2018 – The respondent failed to share with the claimant the outcome of an independent report specifically commissioned to consider the salary and evaluation of the role of Town Clerk and thereafter failed to engage with the claimant in finalising the review of her position When the claimant eventually received both of Mr Egan’s reports, she concluded beyond reasonable doubt that the respondent had contrived to deliberately keep both out of her possession because they knew that neither report was favourable to them. In doing this, the respondent cannot have intended to resolve either matter or else they would not reasonable have adopted this stance. The claimant avers that a reasonable employer who was abiding by its implied duty of explanation of delay and the ongoing failure of the respondent to address the issues showed no desire to resolve matters. Furthermore, the respondent’s repeated failure to address the issues was contrary not only to the expressed desires of the claimant to

[205]The Tribunal considers that the respondent did act unreasonably and without proper cause in not sharing Mr Egan’s pay evaluation report until pressed to do so by the claimant’s solicitors, and on condition of a meeting going ahead.

[206]We do not find or accept that Mr Egan’s report was obtained as a background comparative report to a main assessment being done by Carmarthenshire County Council. The Tribunal is satisfied in the summer of 2017 an initial decision was made not to instruct Mr Egan to prepare a pay evaluation report because it was intended at that time the evaluation would be done by Carmarthenshire County Council based on the agreed job description. That Carmarthenshire County Council evaluation, which was to be undertaken by the Council as an informal favour, then went undone. Obviously that kind of favour arrangement is very difficult for someone in the respondent’s position to control. By 13 November 2017 Councillor Owens had realised that approach was not going to work, and he advised the Civic Committee that the options were either to take on a formal SLA with the Council to formalise the evaluation or to engage Mr Egan for £180 using the NALC Agreement.

[207]The Tribunal is satisfied and finds that a decision was made to go with the second option alone, i.e., to engage Mr Egan to undertake the pay evaluation knowing he would use the NALC Agreement. It is likely that those involved in the decision making were conscious of the time that had been passed and the need to bring matters to a conclusion. The cost of £180 would have been seen as good value. It is likely that those making the decision probably also thought, bearing in mind the earlier Councillor Kenneth Edwards /Paul Thomas assessment had apparently found little difference between the NALC Assessment and the County Council one, that the answer was likely to come out similar to that before in any event. It is also likely that it was considered to be a step that would contribute to bringing the claimant’s outstanding grievance to an end, and a way to offer the claimant something positive to move forward with.

[208]Therefore at the grievance meeting on 30 November 2017 the claimant was told that, as well as taking the grievance recommendations forward, One Voice Wales would be undertaking a job evaluation of the claimant’s post using the NALC Agreement. She was not told that it was simply a comparative exercise to a Carmarthenshire County Council evaluation. Moreover that makes no sense as a proposition, as there is no evidence of a Carmarthenshire County Council evaluation being obtained. The SLA with Carmarthenshire County Council was not entered into at that point in time. Mr Egan’s grievance report recommendations included that the respondent needed to be clear with the claimant about which process was being used and that the claimant was entitled to receive the detailed results, whatever process was adopted. That is what the respondent was also doing at that point in time when instructing Mr Egan to do the pay evaluation and when informing the claimant of this at the meeting on 30 November 2017.

[209]The understanding of the parties at the time Mr Egan was instructed was that he would undertake a pay evaluation using the NALC Agreement and that the evaluation produced would then be the guiding report as to what would happen next in terms of the claimant’s pay.

[210]The Tribunal finds is likely that when Mr Egan produced his report at the beginning of February 2018 it caught the respondent (or those who saw it) by surprise. Its outcome was higher than expected following the initial assessment undertaken by Councillor Kenneth Edwards and Mr Thomas.

[211]The Tribunal considers it likely that Councillor Owens, and any other Councillors who were in receipt of the report at that time found its contents unpalatable. They were troubled about the potential political fall-out that would then follow. It was higher than expected and presumably more than budgeted for, achieved using the NALC Agreement which some Councillors had previously opposed using. Despite Councillor Owens desire to heal factions, relationships within the council continued to be severely strained. The dispute relating to Councillor Mitchell, Mr Fox, the RNLI and other councillors was ongoing and causing bad feeling that was now affecting third parties outside of the Council. We consider it likely that, at that point in time, there was a deliberate strategy for those involved to bury their heads in the sand and not do anything with the report. The desire to do nothing would have been compounded by what then happened with the further deterioration in relationships arising out of the email of 26 February 2018 from the Labour group and the ensuing Audit Committee investigation. Those involved at the respondent would not have initially known that the claimant was going to report sick. But once she did, it offered an easy out in terms of being able to try to justify to themselves just sitting on the report. Relationships within the Council did not grow any easier as time went on, as by April 2018 the prospect of Councillor John taking over as Mayor was causing significant disruption, with Labour Councillors saying that they did not consider him fit. By June 2018 relationships were that bad that Labour Councillors were refusing to attend committee meetings.

[212]The Tribunal considers that it is implicit within the above arrangements and expectations about the instruction of Mr Egan, that Mr Egan’s pay report would be shared with the claimant. But even if the respondent needed the formal approval to disclose it to the claimant that could and should have been done. All involved knew how long the pay issue had been outstanding and the need to bring it to a swift conclusion. The Chairs Committee (who Councillor Owens told the claimant he needed to discuss it with) were regularly meeting. The Civic Committee met on 8 February 2018 and whilst there are no minutes available, they are likely to have met in March 2018 too (it would appear March minutes are not available because of the disruption caused by the claimant commencing sickness absence). The Full Council met on 21 February 2018, and again presumably on a date in March 2018, and thereafter on 10 April and 18 April. The committees in general met on at least a monthly basis (other than 1 month in the summer).

[213]The Tribunal does not accept that the claimant’s absence from work justified the respondent not engaging with her about Mr Egan’s pay report. Indeed, given the claimant was absent from work due to work related reasons it was a reason to do something with it. Mr Egan’s pay report did not automatically bind the respondent to simply apply its conclusions. The claimant’s own case is ultimately not advanced on that basis. However, as above, it was the report that was to be the guiding approach. The report had been prepared on the basis of data given by the claimant to Mr Egan, which had not been reviewed by the respondent at all. The respondent would have been entitled to discuss the report and revert to Mr Egan on any issues or queries they had with it, although as Mr Egan commented on in his oral evidence, there was limited scope for changes. The formula that he applied was in a sense a set formula. The scope for legitimate changes would only lie in any dispute about the data that was put in; such as for example, the budget of the Council or the number of committees or meetings attended and the like.

[214]If the respondent wanted to raise any issue with Mr Egan’s report then the fundamental basics of a fair approach would include being clear what their issues were, it being evidence based, and being clear with the claimant about what was happening, when and why. The Tribunal does not consider that the claimant’s absence from work reasonably justified the respondent not seeking to engage in such an approach. It is said by the respondent that there was no wish to further upset the claimant as they would have been presenting Mr Egan’s report but then saying there may be some difficulties with it. The Tribunal, however, considers that it could and should have been reasonably handled in a way that did not upset the claimant. The claimant was their Town Clerk; the respondent knew that the claimant knew how the Council functioned in terms of decision making. Even with the claimant being on sick leave there should have been scope for adult dialogue with her. It could easily have been said to her that Mr Egan’s report had been received, but that the Council were likely to have some queries for Mr Egan about the data that the report had been based on as they had not previously had an input. The respondent could then have got on with it. It is likely the claimant would have seen these as positive developments overall. Mr Egan said in evidence, initially at least, that he remembered a couple of councillors telling him they disagreed with the assessment. If so, no one on behalf of the respondent went back with specific points of challenge prior to the claimant’s resignation, when they could and should have done so. Even in the course of this litigation the respondent has not been able to set out exactly what it is they say Mr Egan got wrong.

[215]In terms of any matters that needed the claimant’s input, the claimant could have been asked whether she was well enough to engage on those issues at that point in time, or whether she wanted it left until she was well enough. It was not appropriate for the respondent to make assumptions about what the claimant’s health dictated without actually asking her about it. But in any event the Tribunal considers that the true reason for the respondent’s conduct was because the report was seen as unpalatable. The claimant’s sickness absence then because the excuse that overlay that real reason. That the claimant did not pursue Councillor Owens about the report, or that it was not the main thing keeping her off work at the time, does not absolve the respondent of responsibility for taking it forward.

[216]The failure to share the report with the claimant and to engage with her about it or otherwise take it forward was without reasonable and proper cause and was conduct that was likely to damage the relationship of trust and confidence. It is particularly significant damaging conduct because it is set against the extensive background of delay and mismanagement of the whole job description and pay review process. It is also particularly significant damaging conduct because the instruction of Mr Egan was presented to the claimant as part of the resolution of her grievance and was presented to the claimant as something that was supposed to be a positive route forward.

[217]In terms of the related point about giving the claimant a pay rise, the Tribunal does not accept that the respondent was automatically required to increase the claimant’s salary in line with Mr Egan’s recommendation and indeed ultimately the claimant’s case was not put on this basis. To act in a manner compatible with maintaining mutual trust and confidence would require the respondent engaging in a process as discussed above, and then once any issues with the data as applied by Mr Egan were addressed, making a rational, reasonably prompt, noncapricious decision in good faith about the claimant’s pay that also reflected the expectation that Mr Egan’s report was the agreed guiding framework. It would also involve properly consulting with the claimant. That did not happen because the process stalled at the outset, as already discussed, because in effect the respondent sat on Mr Egan’s report to avoid having to do these things. It is in that sense, part of the same finding of breach of trust and confidence that we have already made. It is a process which, if dome fairly and appropriately, should not have taken long.

[218]The respondent says that the intention had been to get a further report from Carmarthenshire County Council, discuss both reports with the claimant and then make a decision on which scheme to use and what salary to award the claimant. The Tribunal does not find that was the respondent’s initial intention. We have already found that a firm decision was made to instruct Mr Egan and use his report as the guiding report. If once Mr Egan’s report was obtained there was then an intention to instruct Carmarthenshire County Council as an alternative, then that is not reflected in any minutes that we have been referred to. Given the way in which decisions are made by the respondent the absence of minutes makes no sense. Further, if that was the respondent’s intent then they could have got on with it, and consulted the claimant, as already addressed above. That none of these things actually happened tends to suggest there was no such decision to instruct Carmarthenshire at the time.

[219]But in any event, the Tribunal would not find that such an intention or action to belatedly instruct Carmarthenshire was one which would accord with maintaining the relationship of mutual trust and confidence. It would, if it had actually happened, significantly harmed mutual trust and confidence as it went wholly against the basis on which Mr Egan was instructed (as against the whole history of the pay review situation and the fact Mr Egan was instructed as part of resolution of the claimants’ grievance). It would have, in effect, amounted to the respondent engaging in a process of forum shopping attempting to find an evaluation that suited their purposes and therefore would not, in that sense, have been in good faith.

[220]The Tribunal can see nothing that directly says occupational health were saying that the claimant’s pay situation needed to be resolved. Certainly the claimant had been pushing historically for it to be resolved, but as stated, it was not something she had been pushing as a priority in her sickness absence because her priority concerns at that time lay elsewhere. This specific allegation made by the claimant at 12Cj does not therefore assist the analysis in this case in any meaningful way. The Claimant’s sick leave 12 March 2018 – 12 February 2019 – The respondent failed to properly engage with the claimant during a period of lengthy sick leave in any attempt to resolve the issues which the claimant and later the OH Physician identified as the root cause of her stresses

[221]Aside from the handling of Mr Egan’s pay report, the Tribunal does not find that the respondent failed to engage with the claimant during her sick leave. Councillor Owens regularly visited the claimant, a stress assessment was conducted with her and she was referred to occupational health for advice and support. There were times at which with hindsight it may be said that Councillor Owens’ actions were clumsy; for example, in asking the claimant to complete some minutes or sign some documents, and in talking to the claimant about negative things that were happening in the Council. However, these kind of visits are difficult for any line manager. They have to make conversation about something whilst there. If the claimant had asked Councillor Owens to stop talking about how things were in the Council, no doubt he would have stopped. There is no evidence the claimant asked him to do so. She was also aware of what was happening by her own engagement with social media in any event. He spoke about Mr Fox failing in his own election bid, as being something that was likely to cheer the claimant up and potentially help with a return to the workplace. Asking the claimant to do some work related activities was clumsy and borne of some naivety on Councillor Owens’ part and the fact the respondent was in a difficult position with paperwork and not having a Clerk. But he stopped when asked to do so. It is not conduct that, viewed objectively, harmed trust and

[222]Occupational health recommended mediation to try to bridge the gap in getting the claimant back to work. The claimant accepted in evidence that she did not want to go through with this. It is therefore not conduct that can be levelled at the respondent’s door. They were seeking a round table meeting.

[223]We return to the specific points below, but in a general sense the respondent did (other that the Egan pay evaluation) engage with the claimant’s proposals, put through her solicitor, as to how it was said she could envisage a return to work happening. The respective minutes show how the Council was engaging with the proposals and formulating a response to them. That there were delays is borne of the way in which the respondent functions and the need for Council discussion, voting and approval and to take their own advice. The claimant would have well understood this although it would have helped if the respondent had, at times, sent holding responses.

[224]The Tribunal does, however, find that in one respect the respondent did act without reasonable and proper cause and in a manner likely to harm mutual trust and confidence. The occupational health therapist said in the report of 6 September 2018 that the claimant could be seen for more sessions if a re-referral were made. The claimant said she found the sessions helpful, but more sessions were not funded. Councillor Theodoulou said in evidence that the reason they were not funded was because the claimant had engaged solicitors. That is not reasonable and proper cause. This was therapy which was helping the claimant and would be likely to assist with a return to work process. The list of steps to facilitate a return to work On 25 October 2018, the respondent, during a telephone conference with the claimant’s solicitor requested that the claimant provide a list of steps to facilitate her return to work, which was duly provided on 14 November 2018. The claimant was hopeful that it would “bring all matters out into the open” and that these matters would be satisfactorily addressed by the respondent to enable her to return to work. Despite responding in a letter of 13 December 2018, the respondent ignored almost all of what was raised. Finally, when the respondent wrote to the claimant’s solicitors on 29 January 2019 in an attempt at a more substantive response to the claimant’s list of steps to facilitate a return to work (as set out on 14 November 2018), these further responses to each step were either evasive, misleading, untrue or completely outrageous. It became clear to the claimant that the respondent did not intend to assist her in resolving her grievance and provide a safe working environment.

[225]The Tribunal does not agree that the respondent ignored almost all of the claimant’s proposals. The letter of 13 December 2018 was predicated on the basis that the parties were working towards a round table meeting where matters were going to be discussed. The occupational health physician had recommended mediation. It seems to the Tribunal that it was eminently sensible and appropriate on the part of the respondent to seek to arrange that meeting and to take the view it would be better to discuss detailed matters there. Their comment that written communication alone was not likely to be the way to resolve matters was a sensible observation. Long multi-factorial letters about contentious and emotive issues tends to lead to misunderstandings, comments being taken out of context, and the hardening of people’s views. That can sometimes be avoided by face to face communication where people can see and hear things like body language and tone, where discussions can be more dynamic and focus on what it turns out is particularly important to those who are involved, explanations for any misunderstandings can more readily be given and matters can be discussed and viewed and decided upon in a more holistic way. The letter of 13 December 2018 therefore, again sensibly, simply set out a summary from the respondent’s perspective of what support they could offer on a return to work. It was intended to form a basis for discussion.

[226]It struck the Tribunal that it was a matter of considerable regret in this case that the round table meeting or a mediation never took place. We were not presented with the detail of exactly what happened. However, it is not said by the claimant that this was a failure on the part of the respondent or that the blame for this should be levelled at their door.

[227]We do, however, find that it was inappropriate for the respondent to have said that they would not discuss the job evaluation other than through their “usual employment procedures” or once the claimant had returned to work. As addressed above, that was reflective of a strategy of avoidance on the respondent’s part about Mr Egan’s pay evaluation report.

[228]In any event, the respondent’s approach to responding to the claimant’s list of suggested steps did shift to preparing a written response. We do accept that was generally done in good faith; the minutes show that it was the respondent’s understanding that was what was needed in order to try to encourage the claimant to return to work. The Tribunal is satisfied that trying to respond positively towards the claimant’s requests where possible was the overall general aim; it was voted through by the Council without opposition, save that various Councillors abstained from voting having declared interests. That it is also recorded in the minutes. That the Council needed to present a strong defence does not run contrary to this or is inappropriate. It is statement of the obvious; they were receiving lengthy solicitors’ letters with the obvious implication that there could be legal proceedings on the horizon. Some of the claimant’s demands were also themselves unrealistic, unreasonable and were not focused on assisting the claimant in achieving a return to work.

[229]The claimant takes issue with the individual responses given in relation to each proposed step. However, what matters in this complaint is the conduct which it is said contributed to the claimant deciding to resign. The best place to look at that is the claimant’s resignation letter. In the claimant’s resignation letter she did not protest about the respondent’s response to each of the 17 steps. In our deliberations we therefore focus on the particular steps the claimant did actually take issue with in her resignation letter.

[230](i) The claimant had sought continued referral to occupational health for guidance on how to properly manage her return to work. The respondent said they would continue to engage with occupational health where required in order to provide support and advice on a return to work. The respondent said they also already had a report they were intending to discuss with the claimant when meeting with her. The claimant’s resignation letter complained that nothing had been done in recent months, the occupational health report was months old, and that the respondent saying they would meet with the claimant to discuss the report and matters raised was sweeping issues under the carpet, was mere lip service, and not an attempt to actually assist the claimant back to work.

[231]We have dealt already above in respect of re-referral to the therapist for further therapy. But in respect of the advice from the occupational health physician, the doctor had in effect identified workplace issues as being a barrier to the claimant returning to work, and suggested mediation as way to try break that impasse. The respondent saying they wanted to meet with the claimant to discuss the report was not sweeping things under the carpet or lip service. It was doing what occupational health had recommended. It was not an evasive, misleading, untrue, outrageous response nor was the respondent in general not intending to assist the claimant in resolving issues and returning her to the workplace.

[232](iii) The claimant had sought a full copy of the Egan grievance report and the opportunity to request further clarification to which the respondent would be required to respond. The respondent then sent the full report but without the individual statements saying they were confidential and that “we will be prepared to release these if you gain authorisation from the individuals for us to do so.” The claimant in her resignation letter said she had been trying to obtain a copy of the full grievance report for nearly 18 months, that having just received it, she was very disappointed that the witness statements had been removed and that there was a suggestion she contact witnesses direct to obtain authorisation. She pointed out the that the Councillors had been given the opportunity to read the full report without such authorisation and there remained a lack of openness and transparency. She also said that the report made strong recommendations, particularly in relation to the job evaluation process, that had been completely ignored. She said she now understood why it had been kept from her because of its damning content and that if there was a real desire to resolve matters the recommendations would have been followed a long time ago. The Tribunal understands that the latter relates to the pay report rather than the grievance report.

[233]We have already addressed above that it had been unreasonable on the part of the respondent throughout to have withheld the full grievance report from the claimant. It was also unreasonable for the respondent, when finally sending the full report, to omit the witness summaries. In the Tribunal’s judgement, it is standard practice in a grievance investigation for the appended witness statements/summaries to be provided to the individual bringing the grievance. They are part of the grievance report. Sometimes, although rarely, situations arise where individuals will only provide statements under conditions of anonymity or confidentiality but that is not the case here. No such arrangements were put in place with Mr Egan when he prepared his report and liaised with the witnesses. The respondent says that the suggestion that individual authorisation be obtained was aimed at the claimant’s solicitors and not the claimant. Even if so, it was not reasonably a step that the claimant’s solicitors should be required to take. The failure to provide the complete grievance report dispossessed the claimant of her own grievance and created the impression there was something to hide. It is understandable the claimant viewed it as a lack of openness and transparency. It was conduct without reasonable and proper cause and which would be likely to damage trust and confidence.

[234]The recommendations about job evaluation made in the grievance report were that the respondent should provide staff with the detailed results of the job evaluation process pertaining to their posts and establish appeals machinery to deal with any appeals that confirm with criteria to be set for such appeals. It was also recommended that the Council develop a policy on job evaluation to include all process elements ensuring that openness and transparency is reflected in its composition. The claimant was already in possession of these recommendations from the grievance report executive summary she previously received. The pay evaluation recommendations in the grievance report had therefore not been hidden from the claimant. That said, when the claimant received the Egan pay report in late October 2018 it would have been a legitimate conclusion for her to have reached that the respondent did not appear to have engaged in openness and transparency regarding the pay report and the pay evaluation process, contrary to what Mr Egan recommended in the grievance recommendations and which the respondent had previously told the claimant they accepted and would progress.

[235](vii) The claimant had asked for a copy of the Councillors’ individual responses to the Ombudsman, saying she understood there had been some outright denials. The respondent said they could not provide these to the claimant as the Council did not hold them and were not part of what the Ombudsman sent to the Council. The claimant in her resignation letter says that the response shows no attempt to investigate the matter and that was cursory and dismissive and transferred the onus on to the claimant to move things forward when she was unwell. The Tribunal does not consider the respondent’s approach here to be unreasonable. These were individual responses sent personally by the individuals to the Ombudsman as regulator. It is the Tribunal’s industrial experience that such correspondence would ordinarily be considered to be personal to those individual Councillors. Moreover it is difficult to see what positively their provision would have achieved in terms of returning the claimant to the workplace. It is difficult to see that the Labour Councillors would have written things that the claimant would be happy to read or that she agreed with. What then could sensibly have happened? The Ombudsman had already declined any further review. In the Tribunal’s view this is a matter where the claimant was unable to let matters lie. She wished to keep picking away at it, but it was not something that was likely to facilitate her return. The respondent did have reasonable and proper cause for their response on this point.

[236](viii) The claimant sought a written explanation from the Chair of the Civic Committee why the Egan pay report had been withheld from her. The respondent said there had not been sufficient time for the committee to consider the report in detail or for the Council to receive full copies before the claimant’s absence began in early March. It said that the Chair considered there was no need for an immediate approach to deal with the report which was requested for comparative purposes only and when it was made clear it would not be binding on the Council or the Town Clerk. The claimant’s resignation letter said this response was totally unacceptable to her. She said that the respondent had receive a report it found unpalatable and had backtracked to stop her receiving the recommended pay rise. She referred to the minutes of 30 November 2017 and said that at the time the basis of the instruction of Mr Egan was very clear and that it was only after completion of the report did the respondent change this. She said she considered this a fundamental breach of trust.

[237]Our findings already made accord with what the claimant said here. The respondent was seeking to backtrack from the instruction of Mr Egan because they found the report unpalatable. The respondent’s position in their letter of 29 January 2019 would have very clearly sent the message to the claimant that they were not intending to use Mr Egan’s report as the guiding report in term of resolving the claimant’s long outstanding pay review, that they were trying to recast it after the event as simply a comparative and completely non-binding report and distance themselves from it. It would have legitimately reinforced the belief that the respondent had been burying the report because they did not like its content. It would have left the claimant with no idea as to what was supposed to be happening next in terms of pay nearly 4 years after the whole pay evaluation process started. The content of the letter on this point was without reasonable and proper cause and seriously damaged mutual trust and

[238](ix) and (x). The claimant’s letter had required Carmarthenshire County Council to provide a copy of their original pay evaluation to include all calculations. It also requested a formal letter from Carmarthenshire County Council about that evaluation fully detailing the persons involved and the terms of engagement. The respondent’s letter said that the report did not exist in the office of the Town Council and the advice given by Carmarthenshire County Council “was, I understand, verbal”. It also said that to their knowledge there were no written terms of engagement with Carmarthenshire County Council. It said that the people involved were Mr Thomas and that the lead person from the respondent had been Councillor James. The claimant said in her resignation letter that she had never previously been told that the advice was verbal and that she felt she was being deliberately mislead which went to the heart of trust and confidence. She said that saying that no report existed in the office and that the advice “was, I understand, verbal” was deliberately evasive as Councillor Theodoulou was not a member of the job evaluation committee and he would not necessarily be in possession of the full facts. She said that the response about terms of engagement was also evasive as members of the job evaluation committee must know whether there were written terms of engagement or not.

[239]Councillor Owens had previously told the claimant that he understood the advice received from Carmarthenshire was verbal. The claimant was therefore not correct to say that she had never been told it was verbal advice. However, it is possible the claimant may have become confused in her understanding and recollection given she had also been told that she was entitled to receive a copy of any documents that did exist, and which she had therefore been chasing. The claimant had also genuinely thought some meaningful documents would exist if a proper pay evaluation and comparison had been done. Councillor Owens said to us in evidence that he thought the committee was intending to just see what they could produce (albeit even that was never done until just before this Tribunal hearing and was ultimately simply the various documents with their hand annotations retained by Councillor Kenneth Edwards). Ultimately what the respondent’s letter said about that earlier exercise was factually correct. No written report did exist, the advice given had been verbal, and there were no written terms of engagement. The response in that sense was therefore not evasive and the claimant was not being deliberately mislead at that time. However, the harm that was really done here was that the claimant was finally learning that she had been given two pay evaluation outcomes that did not appear to have a proper basis behind them (or at least that was properly documented that the claimant would be able to understand and potentially appeal). This was compounded by the respondent saying they were not intending to abide by the Egan pay evaluation. It meant there was no properly documented pay evaluation that the respondent was showing any willingness to abide by. It left the claimant with no real pay evaluation outcome 4 years down the line.

[240](xi) and (xii). The claimant sought a copy of the job evaluation committee’s comparative evaluation and individual written explanations from each member of that committee detailing why the evaluation had been withheld from her. The respondent’s response said they were not aware of a written comparative between the two evaluations and so it was not possible to give something that did not exist. The claimant’s resignation said that this was a fabrication as the letter she had received with the amended salary proposal from Councillor James said a comparative evaluation had been done and she said that it would not be possible to do that kind of evaluation without it being done in writing. She said that Councillor Hadley-Jones had also told her he had been prevented by Councillor James in providing her with anything. She questioned how she could continue with dialogue with the council when there was clear evidence of misinformation.

[241]Viewed objectively the Tribunal, as already dealt with above, does not find that the respondent was engaging in misinformation at that time. The claimant was operating under the misunderstanding from her perspective that there was a full written evaluative comparison between a Carmarthenshire County Council assessment and one using the NALC Agreement. That did not exist. That is what the respondent was communicating to the claimant. The fact that there was no such report was something that did not paint them in the best of lights, but it was something that they were nonetheless confirming to the claimant and in that sense they were therefore operating with some openness. Factually, it would have been more accurate for the respondent to have said that the notes that Councillor Kenneth Edwards had kept existed. However, the Tribunal considers it likely that Councillor Theodoulou and those assisting him with writing the response probably did not realise at the time that Councillor Kenneth Edwards (who was no longer a Councillor) still had them. The evidence given to us was that it was only in the run up to the Tribunal hearing that it came to light he may still hold something. It is, regrettable as that may be, the kind of situation that fairly frequently occurs in the run up to Tribunal hearings and the Tribunal accepts that it is likely that is what happened. The Tribunal does not find that this conduct (in terms of what was said in the letter) was of a level that was likely to damage trust and confidence. However, it links to the wider observation made above in relation to points (ix) and (x) about the claimant finally learning the inadequacy of the records relating to the first process.

[242](xiii). The claimant sought written explanations from each of the members of the job evaluation committee detailing why she had been wholly excluded from the entire staff evaluation process when Mr Fox had been in attendance at various meetings and had “a large input into the clerk’s role.” The respondent said that the committee took the view that the job evaluation of other members of staff may have had an influence on the Town Clerk’s evaluation at a time when she was seeking a review of her grade. It was said that it was for this reason she had been not involved in the discussions. The respondent also said, “We can find no record of Lee Fox’s involvement with the evaluation panel and therefore we cannot comment on this.” The claimant in her resignation letter said this was a fabrication as she had a clear recollection of Mr Fox attending meetings with the job evaluation committee and that she had spoken to him about how he was attending these when she was not included. She referred to Mr Fox’s email of 21 December 2017 and the special panel’s reports. She said that whilst she appreciated there was little that could be done in hindsight to correct these historic issues, the continued refusal to acknowledge the issues, combined with a willingness to misrepresent the position was contrary to the trust and honesty she should be able to expect from her employer.

[243]The respondent’s response on this point was untrue, evasive and not to their credit. Various Councillors knew of Mr Fox’s engagement with the job evaluation committee and the respondent should have been capable of being honest with the claimant about that involvement. Bearing in mind the claimant’s wider historic complaints about her sense that Councillor James had been favouring Mr Fox and what the claimant had been told about the potential historic plan to get Mr Fox in the role of Town Clerk, such an evasive response was inevitably going to heighten the claimant’s sense that something inappropriate had been happening and that the Council were taking steps to hide it from her. It is conduct that was without reasonable and proper cause and was likely to damage mutual trust and

[244](xiv). The claimant asked for a full written explanation from Councillor James as to why the email of 26 February 2018 had been sent to her and why he had had failed to attend the second Audit Committee meeting. The response from the respondent said that the email of 26 February 2018 had been sent on behalf of the labour group members and was not agreed or endorsed by the Town Council. It said, “your client is therefore advised to approach Cllr John James and the Labour Group directly for an explanation.” The response referred to the action taken by the Audit Committee which had found no evidence to support the allegations. It referred to the fact that disciplinary action could not be taken against councillors and therefore the only recourse had been to refer the matter to the Ombudsman, which had been done. The claimant in her resignation letter said that she was very upset and appalled to be told that she must directly approach the very Councillors she had complained about and which had led to her being absent from work with ill health. She said it showed no attempt to understand the issues she faced or was a way to put the issue beyond resolution. She said it was also amounted to the respondent saying that they could not provide her with a safe working environment meaning her return to work was impossible.

[245]Mr Theodoulou said in evidence that the letter had not been intended to suggest that the claimant personally contact the Labour group. He said it was intended for the claimant’s solicitor. He also said that he accepted that the respondent remains vicariously liable for individual actions by Labour councillors but that it was also important to get the message across to the claimant that what had happened had not been officially sanctioned by the Council and that indeed they had found the allegations unproven and had taken steps to do what they could to obtain redress against the Labour councillors involved.

[246]Viewed objectively, the Tribunal does not find that the intention was for the claimant’s solicitors to contact the Labour group. The letter clearly states, “your client is therefore advised to approach Cllr John James and the Labour Group.” The Tribunal can understand why the respondent may have been concerned about answering this kind of question from the claimant. It is something they had investigated and dealt with. It is difficult to see, whatever response was given by those Labour Councillors involved, how it would have been something that that claimant wanted to hear, how it would have been an answer she found acceptable or how it would help aid the claimant return to work. However, it was inappropriate for the respondent, as the claimant’s employer, to tell her that if she wanted the answers to these questions the respondent was not going to assist her with that, and she would have to make direct personal contact with the very individuals she had been complaining about (and who also were her employers.)

[247]It referred the claimant back to very individuals she was complaining about and would have understandably given the claimant the impression that the respondent was stepping away from, and not accepting as the claimant’s employer any responsibility for the actions of those Labour councillors. It understandably gave the claimant the impression that the respondent (or the Labour councillors involved) were deliberately evading giving the claimant an explanation. It would have understandably made the claimant question how the claimant could safely return to work if she was going to be told if something happened involving a Labour councillor then it was separately between her and that councillor/ that group. What was said to the claimant was therefore without reasonable and proper cause and was likely to harm the relationship of mutual trust and confidence.

[248](xv) The claimant asked for a full written explanation from the Labour Group about their collaboration with the reporter from the Llanelli Online which it was said had resulted in significant harassment of the claimant through malicious emails. It was said that this association had been openly admitted by Councillor Morris. The respondent said in response that the Town Council was not involved in decision making about this and “we would suggest that Melanie seeks an explanation directly from the Labour Group.” It added that efforts had been made to complain to the press regulator. Again, the Tribunal would understand the responding declining to comply with such a request. It was a poorly judged request and not one likely to facilitate the claimant’s return to work. However, the problem is again with the way in which they framed their response. The claimant in her resignation letter made the same point that she was being referred back to the very people that she was complaining about. The manner of the response on this point was inappropriate for the reasons already given above and was conduct without reasonable and proper cause and was likely to damage the relationship of mutual trust and confidence.

[249](xvi) The claimant asked for a full explanation as to “why there was a deliberate campaign of hostility” against her. The claimant said that this had been admitted by Councillor Walpole and that he had said it stemmed from the email sent by the claimant on behalf of the Mayor about the use of facilities for Labour group meetings. She sought the opportunity to scrutinise the explanation with Councillor James in the present of the full council. The response again said that the Town Council as employer was not involved in this issue and that it should be taken up with the Labour Group “if you need further information.” This particular response did not directly suggest that it was for the claimant to personally make contact with the Labour group. Nonetheless the Tribunal does not find it an appropriate response. Again, we can understand why the respondent may have quite rightly considered it an inappropriate and unhelpful request that was not going to help get the claimant back into the workplace and was a poorly judged request reflective of a reluctance to let matters rest. But what was actually said to the claimant in response to the request was not appropriate for reasons similar to those already set out above. It clearly seems to be saying that the respondent is not responsible for the actions of Labour Councillors and loses sight of the fact they were all the claimant’s employer whether acting individually or collectively.

[250](xvii). The claimant asked for a full written explanation from the respondent as to why she was apparently going to be forced out of her position and replaced by Mr Fox. The respondent said they wanted to assure the claimant that there was no resolution to this effect and that “as far as we are aware there has been no involvement in anything of this nature by the Council as your client’s employer. If, as stated, the Town Clerk has evidence of any individual or individuals making such a statement she should take this up directly with them.” The claimant said in her resignation letter that she was aware that most, if not all, Councillors had subsequent knowledge of the plot held by some Labour Councillors. She referred to emails in her possession and the fact that Councillor John had talked about making enquiries with the police. She referred to discussions with other independent Councillors who were convinced there had been such an intention on the part of some Labour Councillors.

[251]Again, the Tribunal does not consider that this was a sensible request on the claimant’s part. A reassurance was a sensible response. If the respondent wanted to seek further detail from the claimant then the appropriate course would have been to invite her to provide the information to the Audit Committee. It was not to send the claimant back to the individuals concerned. The response also should not have said “so far as we are aware there has been no involvement in anything of this mature by the Council... as ...employer.” The Tribunal has found as a matter of fact that it is likely there was such a plan held by some Labour Councillors prior to the election. We have also found that various Independent Councillors were told or were suspicious that this had been happening, and at one point Councillors John had been collating evidence about it. The respondent’s response attempted to evade all this by trying to say it had not been done as the claimant’s employer (even those they admit in these proceedings they are vicariously liable for the acts of individual councillors). It also attempted to evade responsibility and refer the claimant back to the very people she was complaining about, by saying she should take any evidence she had up directly with the individuals involved. It was conduct that would damage trust and Did the conduct amount to a fundamental breach of contract and did it contribute to the claimant’s decision to resign?

[252]We have found that the respondent acted without reasonable and proper cause and in a manner which damaged trust and confidence in the following ways (in short summary form):(a) the length of time to complete the claimant’s job description (which fed into her job evaluation) between February 2015 and July 2017;

(b) Councillor Linda Edwards conduct towards the claimant on 30 August 2017;

(d) not giving the claimant a full copy of the grievance report including appendices when first sent to her and thereafter (November 2017 onwards);

(e) not concluding the claimant’s grievance and giving the claimant a final grievance outcome letter or right of appeal (November 2017 onwards);

(f) not honouring the grievance outcome in terms of being open with the claimant about the pay evaluation process, its result and or the offer of a right of appeal (February 2018 onwards);

(g) the complaint from the Labour Councillors of February 2018;

(h) not properly documenting the initial pay evaluations and not giving the claimant the Egan pay evaluation report between February 2018 and October 2018. in effect, burying that report and not otherwise progressing it in that time and thereafter;

(i) Not funding further therapy because the claimant engaged solicitors (September 2018);

(j) In the letter of 29 January 2019: (i) evading engaging on the Egan job evaluation report by saying it would be discussed separately as part of the respondent’s “usual employment processes” and backtracking on the instruction of Mr Egan and his pay evaluation report findings by asserting his report was only for comparative purposes and would not be binding. Revealing there were no proper documents for the earlier two pay evaluations leaving the claimant with no proper pay evaluation outcome; (ii) not providing (in conjunction with the letter of 1 February 2019) the witness summarises for the Egan grievance report and saying the claimant would herself have to gain authorisation from the individuals involved for them to be released to her; (iii) telling the claimant they could find no record of Mr Fox’s engagement with the job evaluation committee which was untrue; (iv) effectively side-lining responsibility for the email of 28 February 2018 by saying it had been sent on behalf of Labour Group members and therefore the claimant should approach Councillor James and the Labour Group directly for an explanation. Saying the same in respect of the alleged collaboration with a reporter from Llanelli online; (v) effectively side-lining responsibility for answering the claimant’s questions about her allegation there had been a campaign of hostility against her by saying it did not involve the respondent as employer and should be taken up with the Labour Group; (vi) saying the Council had not been involved in any suggestion of replacing the claimant with Mr Fox and that if the claimant had evidence she should take it up with the individuals concerned.

[253]The Tribunal would find that the handling alone of the claimant’s pay, culminating in the backtracking from Mr Egan’s pay evaluation report was a fundamental breach of the implied term of trust and confidence, set in the context of all that had happened in that regard and the fact that it was offered to the claimant as a grievance resolution. But in any event the wider conduct identified above (including the handing of pay) was a course of conduct comprising several acts and omissions which viewed culminatively amounted to a (repudiatory) breach of that implied term. The Tribunal is also satisfied that such a breach was an effective cause of the claimant’s resignation.

[254]The respondent argues that the affirmed the breach by waiting too long. The Tribunal does not agree. The letter from the respondent was dated 29 January 2019. The claimant resigned on 12 February 2019. The Tribunal does not consider that the gap between the two or the acceptance of sick pay in that period demonstrates that the claimant was calling on the performance of the contract such as to be consistent with the continued existence of the contract. It is akin to the kind of period in Waltons & Morse v Dorrington

[1997] IRLR 488

EAT where a delay of few weeks did not amount to affirmation. It was a reasonable period for the claimant to think about her position and decide to resign.

[255]To the extent that the respondent seeks to argue that the claimant cannot rely upon the principle in Kaur on the basis that there was no course of conduct, the Tribunal does not agree with the respondent’s summary of the law. This is not a discrimination case. There is no obligation on the claimant to demonstrate a continuing state of discriminatory affairs or something akin to that. As is made clear in Omilaju the final straw act does not have to be of the same character as the earlier acts and the concept of a course of conduct is not used in a precise or technical sense. What matters is that the conduct is of a kind that damages the relationship of trust and confidence so that culminatively it amounts to a fundamental breach. Furthermore the content of the letter of 29 January 2019 was certainly not entirely innocuous.

[256]The claimant therefore resigned in circumstances in which she was entitled to terminate the employment contract without notice by reason of the respondent’s conduct. The claimant was dismissed. The respondent has not asserted a fair reason for dismissal under section 98(4) (although it disputes that the principal reason was not any protected disclosure – to which we return below). The claimant’s ordinary constructive unfair dismissal claim is therefore well founded and is upheld. Wrongful Dismissal

[257]As the claimant has succeeded in her ordinary constructive unfair dismissal claim her wrongful dismissal (notice pay) breach of contract claim also succeeds. Protected Disclosure The claimant’s grievance

[258]Much of the claimant’s grievance letter was concerned with the detail of her complaints about Mr Fox and also the handling of the pay situation. It did also set out her concerns about how Councillor James had responded to the situation regarding Mr Fox and some other matters troubling her. The claimant, in particular, said: “It is also of significant concern to me that Cllr John James seems reluctant to investigate the issues which I have raised regarding the TSO, despite me even suggesting that it may be preferrable for him if the matter was looked into by another Councillor. Although Cllr John James has emphasised his impartiality to the point that he took issue with me even suggesting that I was questioning his credibility, I am fully aware that he is in a compromised position as he is standing alongside the TSO’s wife, Mrs Amanda Fox, as the two Labour candidates for the forthcoming County Council elections…” As set out in the claimant’s counsel’s closing submissions, the claimant also referred to Councillor James pulling the agenda item about Mr Fox on the basis that the facts were not yet known, him not having given the claimant information about Mr Fox’s counter complaints, suggesting that it was the claimant putting obstacles in the way of meeting, raising the holiday issue with the claimant and saying that the claimant was falling out with all the members of the council.

[259]The claimant says in her witness statement that in producing her grievance letter she decided to make a whistleblowing complaint. She says that she considered that Councillor James was in breach of the Code of Conduct, and therefore in breach of a legal obligation, in failing to declare an interest, in conducting himself in a manner that may bring his office into disrepute, attempting to use his position to confer an advantage onto Mr Fox and creating a disadvantage for herself. She says she also believed that her disclosure was in the public interest as the respondent is a public body and Councillor James was an elected Town Councillor, County Councillor and was seeking re-election to both. The respondent, in effect, disputes that the claimant genuinely held those beliefs as at the point she produced and handed over her grievance letter.

[260]We do not find that at the relevant time the concept of Councillor James being in breach of the Code of Conduct was in the claimant’s contemplation. What was on her mind was trying to express her frustrations about managing Mr Fox, her other frustrations with the Council and that she felt Councillor James was hindering her rather than helping her. She was also offering up the suggestion that Councillor James was reluctant to deal with and help her with Mr Fox because he was campaigning with Mrs Fox. She felt confused about how she felt Councillor James was behaving towards her and was positing that as a suggestion to explain Councillor James’ behaviour. Her thoughts at the time about Councillor James’ behaviour were at an embryonic stage. It had not been that long ago that she had actually been taking her problems with Mr Fox to Councillor James for assistance. If she had always thought that Councillor James was compromised in relation to Mr Fox, she would or should never have taken it to him to start with. Her role was to help Councillors and guide them on these kinds of conflict (and indeed to manage her staff).

[261]Moreover the claimant was knowledgeable on the Code of Conduct. Part of her role was to guide Councillors in relation to it. The claimant is a qualified lawyer (albeit not an employment lawyer). She is also a thorough and precise person. When producing documents she writes at considerable length. Much of what she wrote was concerned with things other than the conduct of Councillor James. All of these things lead us to conclude that if the claimant genuinely had formed the belief at that time that Councillor James was in breach of the Code of Conduct, she would have expressly written that in her grievance letter. That the claimant formed that belief later down the line does not mean that she believed it at the actual time. The claimant’s counsel says that Councillors would have in mind Code of Conduct complaints without expressly referring to the Code. For example, in complaints that Councillors made about each other to the Ombudsman. However, we do not agree that this is the way in which the claimant would conduct herself. She is a far more thorough and precise individual.

[262]We also do not consider that at the relevant time the claimant genuinely believed that she was making her disclosure in the public interest. We consider that the claimant’s beliefs at the time were about her own private interests, about what was happening to her and the powerlessness she was feeling. We agree, as put forward by the respondent’s counsel, that if the claimant had genuinely believed there were other interests beyond that, she would have at least alluded to some issue beyond and in additional to how the matters complained of personally affected her. Again, the claimant is someone who is precise and lengthy in what she writes. If she genuinely thought it at the time, she would have written about the potential wider implications of Councillor James’ actions and comments. That the matter may be capable of being in the public interest does not mean that the claimant herself subjectively believed it to be so at the time. We do not find that she did.

[263]We similarly do not consider that the claimant at the time genuinely subjectively believed that the respondent was failing to comply with any other legal obligation, about for example Mr Fox or her pay evaluation, or that she genuinely believed that she was making a disclosure about any such matters said to be in the public interest as opposed to the claimant’s private interests. Again, if she had thought that at the time she would have said so.

[264]It is also said that the claimant reasonably believed the information she disclosed tended to show that her health and safety had been, was being, or was likely to be endangered. The claimant relies on an attachment to her grievance letter which contained the email she had sent to Councillor James on 8 March 2017 about Mr Fox’s behaviour and arranging a meeting in which she said “I therefore need to get matters resolved as a matter of urgency. As you will appreciate, this issue is taking up too much of my time and is distracting from my normal day to day work. I also feel that this situation is starting to have an adverse effect on my health, due to the simultaneous demands being made upon my time.”

[265]We do not consider that the claimant reasonably believed the information she was disclosing tended to show that her health and safety had been endangered or was likely to be. The claimant is a qualified lawyer and a precise individual. Again, if she genuinely believed that she would have put it within the body of the long letter itself, as opposed to being contained within an email of one appendix. Moreover, we do not consider that she genuinely believed that the information tended to show that her health and safety was being endangered. The expression connotes a degree of seriousness that is in line with the statutory purpose of the whistleblowing legislation. The claimant’s expression to Councillor James had simply been that having lots to do, including handling Mr Fox, was starting to have an impact on her health. We do not consider that amounted, either subjectively to the claimant, or objectively in the claimant’s situation, to a disclosure of information that met the threshold for endangerment of health and safety.

[266]We therefore do not find that the claimant’s grievance was a protected disclosure. We have in any event, below, gone on to address the complaints of detriment and dismissal. The claimant’s complaint to the Public Services Ombudsman

[267]The respondent accepts that the claimant’s complaint to the Ombudsman was a disclosure of information and that the claimant may have had a genuine belief that the matters she was reporting, including breaches of the Code of Conduct, amounted to breaches of a legal obligation. The respondent also does not dispute that viewed from the claimant’s context, such a belief would be reasonably held (even though the Ombudsman did not ultimately uphold the complaints).

[268]The respondent does, however, dispute that the disclosure was made in the public interest. The respondent says that the claimant’s disclosure was entirely about matters relating to her and how she felt she had been treated.

[269]The Tribunal finds that the claimant did not believe her disclosure was made in the public interest. We are conscious that there can be mixed beliefs. A belief the disclosure is in the public interest does not have to be predominant. We are also conscious that what we have to consider are the claimant’s beliefs and not her motivation/what she was seeking to achieve. However, what she was seeking to achieve does to an extent help show what the claimant’s belief was when she made her disclosure.

[270]The claimant was off work, sick. She believed she was being harassed by a group of Labour Councillors and their associates and that there may have been a campaign to get her out. She thought her route to returning to work and being able to do her job as Town Clerk, unhindered, lay with the sanctioning of the Councillors concerned. She made her disclosure of information to the Ombudsman in the belief of the genuineness and seriousness of her own personal situation. We do not find, looking at the specifics of her complaints, that it was made in a personal belief in a wider public interest. In the particular circumstances of the claimant’s situation, we do not find that the fact that she was complaining about public servants to a regulator of itself means she held a belief her disclosure was being made in the public interest. The Ombudsman was just the body that held the ability to impose sanctions where the Council themselves could not and was the claimant’s last resort in terms of getting the individuals held to account so that she could return to work. It was a complaint to the Ombudsman, but it was an inwards looking complaint. Her complaint was not serving the interest of a wider group of people.

[271]We therefore do not find the claimant made a protected disclosure. But if we are wrong about this, we have in any event gone on to consider the complaints of whistleblowing detriment and dismissal. Protected Disclosure Detriment On the 18 April 2017 the respondent conducted an unfair job evaluation process and only increased the claimant’s salary to SCP 38

[272]This alleged detriment can only relate to the first claimed protected disclosure. As already discussed above, it is likely that certain Labour Councillors were frustrated with the claimant before she presented her grievance letter. It can be seen from the handwritten records Councillor Kenneth Edwards later produced, they were annoyed with the claimant for having been pressing for her pay evaluation to be completed, in asking that hers be a priority, in pressing for the NALC Agreement to be used, and because they felt she was trying to dictate terms to them. They thought the chain of command should work the other way round. It is likely that some, rightly or wrongly, held concerns about the claimant’s performance and some had held conversations about whether Mr Fox might have something more to offer them as Town Clerk rather than the claimant. Whilst a job description and pay evaluation process should be objective and be about the job not the person, it is likely that these things became intertwined their minds. They questioned whether the claimant had the kind of responsibilities that she said she did in terms of her job description and therefore questioned her appropriate level of pay. Given Mr Fox’s access to the Job Evaluation Committee or members of it, and he is described as being someone who would voice his opinions, it is likely to some extent his views also become tied up in that negative briefing and analysis process. Indeed, the claimant’s suspicions about what was going on are linked in part to the deterioration in her relationship with Mr Fox in the first instance which then led to her grievance. Mr Fox himself in his emails had said his involvement with the Job Evaluation Committee seemed to be causing difficulties. The claimant herself in her own grievance letter said she felt that her challenging the job evaluation method had not been well received. She also said she felt there was some ill feeling towards her through having applied for the Town Clerk job at Llanelli Town Council which again all pre-dated the sending of the grievance letter.

[273]The claimant and Councillor James had also had a disagreement about how the TSO situation should be handled. The claimant had wanted to pursue disciplinary action. She wanted it included as an agenda item. Councillor James wanted to get everyone round a table. It has always struck this Tribunal that whatever Councillor James’ allegiances to Mr Fox may have been, getting round a table to sort out what was a management dispute between the claimant and Mr Fox that was leading to fractious chains of emails was a sensible first step to do, albeit complicated by the way in which the respondent is structured. However, the disagreement over that was then a further source of friction.

[274]Councillor James had also expressed some annoyance when the claimant had suggested maybe another Councillor should deal with Mr Fox given that Councillor James previously had discussions with Mr Fox. He had also expressed some frustration with the claimant saying she was unhappy about attending the meeting on the early evening of Friday 10 March if complaints from Mr Fox were going to be thrown at her, as he felt that he and Councillor Edwards had put themselves out in arranging the meeting that the claimant had been pressing for, with (he felt) the claimant then putting obstacles in the way. He had also raised the issue of holidays with the claimant, with their debate about what had been said and whether Councillor James had a witness. That had led to him suggesting the claimant was falling out with all members of the Council. Councillor James later said to Mr Egan that what he was saying was that the claimant was not going about things the right way. It strikes the Tribunal this shows the growing level of tension, building from a variety of sources prior to the grievance ever being lodged. Indeed, it is that same background, but from the claimant’s perspective, that led to her lodging the grievance with Councillor Theodoulou to start with.

[275]The claimant’s grievance included the claimant’s concern that Councillor James may be compromised in relation to Mr Fox as well as other things. Councillor James later expressed his annoyance to Mr Egan that the claimant had gone down the route of taking her complaint to Councillor Theodoulou as he did not consider it complied with his understanding of the standing orders. The special panel was then set up to look into the claimant’s grievance.

[276]The claimant attended the meeting before the Job Evaluation Committee on 30 March 2017. She felt bombarded with questions. We consider that the questions that the claimant was asked on the 30 March 2017 were questions that were genuinely held based on the documents the claimant had produced. However, we also consider that the manner in which she was asked the questions was likely to have been influenced by a degree of antagonism held towards the claimant at that time. We consider that antagonism may have been influenced to an extent by the claimant’s complaint about Councillor James in her grievance. We consider the claimant raising her grievance, and including within it her complaint about how Councillor James had responded to the situation with Mr Fox, was probably another small additional source of annoyance held by some, including Councillor James himself, towards the claimant on top of an already deteriorating relationship. However, we do not think, in the scheme of everything, it was likely to be a major source of annoyance. For one, Councillor James had the straightforward explanation to give that he was just trying to get everyone round a table. We would describe its influence as being marginal but more than trivial.

[277]The claimant then received the letter about her pay which was just left for her without discussion. The pay evaluation had been done with the assistance of Mr Thomas. It does not seem to be suggested that he held any animosity towards the claimant having raised a grievance (if indeed he even knew about it).

[278]We do, however, consider that, particularly given the close timing of events, the fact the claimant had complained about Councillor James in her grievance is likely to have paid a small overall part in a negative picture of the claimant’s work and responsibilities being fed into the pay evaluation. Mr Thomas could ultimately only deal with the information he was given by the respondent. We do accept that is likely to have then fed into the pay figure the claimant was given in the letter. It is also likely to have paid a role in the abrupt manner in which that outcome was communicated to the claimant. We would find that the claimant’s complaint about Councillor James was a marginal but more than trivial influence.

[279]The general poor-quality record keeping of the job evaluation process done at that time, however, was simply down to the route that the respondent had decided to take in getting informal assistance from Mr Thomas which meant there was no formal report or records. This was not due to the claimant’s grievance. It was simply a poor process.

[280]We do not find that the decision to use the Carmarthenshire County Council scheme as the principal evaluation method was influenced at all by the claimant’s grievance. It had already been stated on several occasions that this was the scheme that the respondent used. Mr Thomas had been involved in the respondent’s processes for some time, which involved an evaluation using the Carmarthenshire County Council scheme. They were using it because it was the scheme that they had always used to date, there was a sense of wanting to treat all staff equally, and because they could utilise the services of Mr Thomas for free.

[281]We do not find that the delays in the process until that time were influenced by the claimant’s complaint against Councillor James. They were longstanding prior to that point. Likewise the claimant’s exclusion, and Mr Fox’s inclusion, from the pay evaluation processes was longstanding prior to her grievance. From February 2017 to March 2018 the claimant was undermined by Labour Councillors. In August 2017 Clls Bob Walpole and Moira Thomas called an Extraordinary Council meeting in order to intimidate the claimant. From August 2017 to November 2017 Clls John James, Moira Thomas, Bob Walpole, Linda Edwards were the main Labour Councillors who exerted pressure to reinstate Mr Fox

[282]The first part of this pre-dates the grievance letter and so does not work as a matter of causation. We have already found there was a deterioration in relationships and a degree of animosity held towards the claimant prior to her grievance being brought. We have already found that the attempt to call the Extraordinary meeting was made because those involved were seeking the reinstatement of Mr Fox and trying to control the agenda to achieve that as well as being part of the machinations of the political battlefield at that time (together with concerns as to whether the claimant was conflicted). We have found the purpose was not to intimidate the claimant.

[283]We have also already found that some Labour Councillors would not have been concerned at the prospect of the claimant feeling intimidated or upset by their efforts to get Mr Fox reinstated or reappointed as collateral damage to their main aims. Our reasoning for that is set out above. Within that reasoning we identified that the lodging of the claimant’s grievance was one relevant factor in a multifactorial analysis. In turn the claimant’s complaint about Councillor James was only a small part of that grievance. Ultimately our conclusions on this point are the same as above in relation to the pay evaluation decision of 18 April 2017. We consider that the claimant’s complaint about Councillor James in her grievance was a small additional annoyance on top of an already complicated situation. The grievance itself was still open as at the time of the earlier efforts to reinstate Mr Fox. We consider it would have again played a marginal but more than trivial part in the reasons why some Labour Councillors would have viewed the claimant as acceptable collateral damage in their efforts to reinstate Mr Fox. But we also consider that influence would have continued to wane as time proceeded, and in particular once the grievance process concluded from the respondent’s perspective. Further, as time went on it is likely that antagonism towards the claimant was increasingly to do with the sense that the claimant was allied to the Independent group, which was significantly contributed to by the claimant’s email about room bookings.

[284]We would apply the same analysis in relation to Councillor Linda Edwards’ conduct towards the claimant on 30 August 2017. On 21 September 2017 Mr Fox and Labour Councillors allowed to heckle and jeer at the Claimant, intimidation.

[285]We not found as a matter of fact that Labour Councillors heckled and jeered at the claimant. We have not found as a matter of fact that Mr Fox and others were allowed by the respondent to heckle and jeer at the claimant. Councillor Owens took steps to stop the behaviour on 21 September 2017.

[286]We have also found that much of the conduct by some Labour Councillors on 21 September 2017 was directed at Councillor Owens and the controlling group of Independent Councillors rather than at the claimant. However, we also found that there were some incidents which were aimed at the claimant. In particular, part of what was said about the hotel booking, the complaint about paper colour and the nit-picking over minutes. We would apply the same analysis as above, that the conduct directed at the claimant was only marginally influenced by the claimant’s grievance complaint about Councillor James, but it was still more than trivial. In or around 26 February 2018 Councillor John James and others alleged that the claimant had sanitised minutes and removed them from the website

[287]The email was a detriment. Any reasonable employee in the claimant’s situation would have felt upset about what was said and that is sufficient to amount to a detriment. It accused the claimant of serious impropriety.

[288]We do not, however, consider that the claimant’s March 2017 complaint against Councillor James was by this time a material influence upon the allegations made against the claimant in February 2018. Time had passed. The grievance investigation had concluded as far as the Labour Councillors would have been concerned. This complaint was a result of the claimant being caught up in the political infighting between the Labour Councillors and the Independent Councillors, and the ongoing battle about the attempts to reappoint Mr Fox. In particular, it is likely the claimant was seen as siding with the Independent Group, especially in relation to the dispute that had arisen about what Councillor Mitchell may have said at an earlier meeting about Mr Fox and the RNLI. Up to February 2019 the respondent failed to inform the claimant that a fair evaluation process had been completed or act on the recommendation made by Mr Egan

[289]The pay report was released to the claimant’s solicitors in October 2018 not February 2019. We do not consider that the claimant’s March 2017 complaint or her Ombudsman complaints had a material influence on the handling of Mr Egan’s pay report. The report was sat on because it produced a figure higher than expected which was viewed as unpalatable and likely to cause further political fallout. That suppression strategy had already been adopted before the claimant made her complaint to the Public Services Ombudsman. The respondent did not release the investigation into her grievance until February 2019 and when it did so, the respondent did nothing to engage the claimant in any formal grievance procedure. Despite outwardly suggesting that they intended to try and resolve the grievance issues, the respondent did nothing to assist the claimant in resolving the matters raised. Up til February 2019 there was a complete failure to resolve the grievance in a timely manner. Up until February 2019 failed to provide a copy of Mr Egan’s report in a timely manner.

[290]These allegation are not entirely factually correct. The claimant was given the executive summary of the report in November 2017. There had been a formal grievance procedure in the sense of Mr Egan’s investigation and the grievance meeting held with the claimant on 30 November 2017. As already dealt with above, the respondent did take some steps to assist the claimant with resolving the matters raised. They accepted Mr Egan’s recommendations and took the steps he recommended such as the adoption of policies and the model protocol. They instructed Mr Egan to do the pay evaluation (although of course ultimately that had an unsatisfactory ending). The respondent could not themselves discipline the Labour Councillors.

[291]What the respondent did fail to do is to give the claimant the full grievance investigation report or to formally conclude the grievance by giving the claimant the full report, a formal outcome letter and the right of appeal. We have already dealt with the reasons for this above. In short, the respondent fundamentally lost sight of or never understood this was the claimant’s grievance and she was central to it. They also genuinely but mistakenly believed that to disclose the wider report/ the witness summaries may give rise to privacy/data protection issues. They also wanted to minimise the risk of politically more bad feeling being stirred up at a difficult political time by individual witness summaries being picked apart. The formal completion of the grievance drifted away as the respondent believed they had brought it to a conclusion and the claimant was not chasing further steps.

[293]The Tribunal does not consider that the fact that the claimant’s grievance included a complaint against Councillor James influenced these things. The Council was now led by an Independent majority. The claimant’s complaint about Councillor James’ response to the Mr Fox situation had been investigated by Mr Egan who had principally concluded that Councillor James had been trying to get the parties round the table. That there were suspicions about whether Labour Councillors had previously thought about whether Mr Fox would make a good Town Clerk was not news to people. The Independent members had not deliberately sought to keep from the claimant (or Mr Egan) the various pieces of information that had been gathered about this.

[294]We also do not consider any of these things were influenced by the claimant’s complaints to the Ombudsman. The Ombudsman complaints happened after the above had already been set in train. Up until February 2019 there was a complete lack of support from the respondent for the claimant.

[295]We have not made a finding of fact that there was a complete lack of support from the respondent for the claimant. The claimant’s grievance was taken forward by Councillor Theodoulou. The Special Panel was appointed and reported. Mr Egan was then instructed to take the grievance forward and his recommendations were accepted. The Audit Committee took prompt action in relation to the February 2018 email. When the claimant was on sick leave she was regularly visited by Councillor Owens, a stress assessment was undertaken, and the claimant was referred for occupational health support. The respondent did generally wish and tried to integrate the claimant back into the workplace. Finally when the respondent wrote to the claimant’s solicitors at the end of January 2019 and then again at the start of February, it made it clear to the claimant that it did not intend to assist her in resolving her grievance and addressing her stress and anxiety at work.

[296]The respondent did not say in their correspondence that they were not intending to assist the claimant in resolving her grievance or addressing her stress and anxiety at work. We have found that the general intent was to get the claimant integrated back into the workplace. Some of what the claimant was seeking was entirely unrealistic and unreasonable and would not have helped with that reintegration and the respondent would have been justified in refusing it. In some respects, however, the respondent also did not respond appropriately in what they said when declining some of the claimant’s requests. In particular, in not being upfront about Mr Fox’s involvement with the Job Evaluation Committee, in seeking to dissociate itself as responsible for actions of the Labour Councillors and in, in effect, dismissing Mr Egan’s pay evaluation.

[297]We have already found the handling of the pay evaluation was not linked to the claimant’s claimed protected disclosures. In relation to dissociating the Council as a whole from the actions of the Labour Councillors, the response that was sent to the claimant’s solicitors was one which had been voted on by the Independent majority. The Labour Councillors had declared interests and did not vote. The Tribunal considers that the respondent’s stance at this time this was born from a misunderstanding at the time of legal responsibility for the acts of individual Councillors or groups of Councillors, and a wish to get the position of the Council as a corporate body (that they did not do these things) communicated to the claimant. It is also likely that there was a wish to move forward and not engage in re-opening old wounds. Councillor Theodoulou said that the Labour Councillors were reluctant to hand over to the Council answers to the questions the claimant’s solicitor’s letter raised. As we have said we do not dispute that was a sensible strategy to decline to answer some points raised; some of the claimant’s requests were unreasonable. It was the way in which the message was communicated to the claimant that was the problem.

[298]In any event, we cannot see a basis for saying that such decision making was materially influenced because the claimant had in March 2017 complained about Councillor James. That, as we have said was a minor annoyance to some Labour Councillors as against many other factors, and its influence had waned over time and had been investigated by Mr Egan and a further investigation turned down by the Ombudsman. 298. It was also not influenced by the fact the claimant had made complaints to the Public Services Ombudsman about some Labour Councillors. There would be no reason for the Independent group in a voting majority to victimise the claimant for this. Some Independent Councillors had themselves made their own complaints. All witnesses before us were also agreed that it was incredibly common at time in the Council for Ombudsman complaints, and counter complaints to be brought. They had become a part of normal Council life and the political battlefield. Furthermore the complaints had not been upheld. A wish for matters that they felt were in the past and had been dealt with to be left there, is not the same thing as victimising the claimant for having made the complaints to start with.

[299]We have not found that the claimant made protected disclosures. But if she did, we have found that any detriments causally linked to the first claim protected disclosure had ceased at the very latest by February 2018. The protected disclosure detriment would therefore have been lodged outside the time limit in any event. The claimant does not seek to argue that it would not have been reasonably practicable for her to have lodged the claim within time. The detriment claim therefore would not have succeeded for time limit reasons in any event. Protected Disclosure Dismissal

[300]Again, this complaint cannot succeed because we have not found that the claimant made protected disclosures. But we will in any event address the point. The question here for the Tribunal is what was the reason the respondent behaved in the way that it did that gave rise to the fundamental breach of contract. The Tribunal here is satisfied that the reason or principal reason was not that the claimant made one (or both) of her claimed protected disclosures.

[301]The reason why the respondent did was they did is complicated and multifactorial, as set out above. The ultimate rejection and suppression of Mr Egan’s pay report was fundamentally because the result was seen as unpalatable. Much of the conduct also boils down to the claimant being caught up in the political fallout between the Labour group and the Independent group, attempts at times to heal that, the obsession amongst some with the cause relating to Mr Fox, a lack of experience and competence in following good HR processes, as well as some degree of animosity towards the claimant by some Labour councillors again for a variety of reasons.

[302]We have already found above that the claimant’s complaint against Councillor James played a very minor part in some of the earlier detriments and its causative role waned as time went on. We have found that the claimants Ombudsman complaints really were not material given the dysfunctional operation of the Council at that point in time and the fact the Council was operating under an Independent majority. If the claimant had made protected disclosures, we would therefore be unable to conclude in any event that the small causative link we have found for some of the early detriments (in the sense of also being conduct without reasonable and proper cause which served to undermine trust and confidence) could be sensibly be said to constitute the reason or principal reason for the respondent’s breaching conduct as a whole. Wages - Breach of Contract Claim

[303]The claimant’s free-standing breach of contract claim came to unsatisfactory conclusion before us. It was included in the list of issues that was discussed at the start of the hearing. In closing submissions the respondent’s counsel then told us that their position was that no separate wages breach of contract claim had been pleaded. It was said this had been brought to the attention of the claimant’s counsel, but they had omitted to bring it to the attention of the Tribunal at an earlier stage.

[304]It was disappointing it was left with the Tribunal in this way. Both parties have been represented throughout. The case had been through case management and if there was an issue about what was pleaded or exactly what the complaint was about there was plenty of opportunity to have raised it with the other party or the Tribunal at an earlier stage. The earlier version of the list of issues agreed between the parties in accordance with the Tribunal case management orders simply recited what was in the pleadings and in doing so both parties had deprived themselves of the opportunity to flush out anything that needed to be. If that was short sighted, then that was their call. The parties should have taken responsibility for that part of the case preparation and the Tribunal should be able to trust represented parties to do so.

[305]The Tribunal therefore decided that the appropriate way to proceed was to look to the original pleadings and then most recent list of issues that was presented to us as agreed.

[306]The claim form included a claim for “other payments”. The ET1 rider in the heading above paragraph 46 refers to breach of contract “and/or constructive dismissal. The rider also alleges “The Respondent has failed to pay back pay of wages back to the date of when the job evaluation process was requested. The Claimant contends that the backpay should be paid.” The “prayer” section at paragraph 60 includes a claim for damages for breach of contract. The extent of any freestanding breach of contract claim separate to a constructive dismissal claim could have been more clearly set out, but the bones of such a complaint are there.

[307]It is therefore then appropriate to turn to the agreed joint list of issues and assess the breach of contract claim on the basis of what is presented to us there. That says: Did the Respondent breach an express or implied term of the Claimant’s contract of employment in relation to the Claimant’s wages?(i) Failing to pay her at scale 38 as a result of the evaluation carried out by the County Council?

(ii) Failing to pay her at the scale recommended by Mr Egan as part of the appeal process against the initial evaluation?

(iii) Failing to give her notice pay?

[308]The notice pay claim has been dealt with. In relation to (i) the Tribunal is unable to concluded that it was an express or implied term of the claimant’s contract of employment that she would be paid at scale 38 as a result of the evaluation carried out by the County Council. The presentation of a pay evaluation at scale 38 in reality was an offer to vary the claimant’s contract of employment. The claimant did not accept that offer as she decided to appeal. There was nothing wrong with her appealing and what happened next was not her fault. But we are unable to construe there ever having been an acceptance of that offer.

[309]Turning to (ii) again we are unable to find it was a term of the claimant’s contract that she would be paid at the scale recommended by Mr Egan in his pay evaluation report. The claimant accepts that it was not automatically binding upon the respondent. The respondent failed to do anything with Mr Egan’s report when they should have done so but the Tribunal does not consider that amounts to the pleaded case of a failure to pay the claimant at the scale recommended by Mr Egan. Conclusion and next steps

[310]In conclusion, the claimant’s complaints of constructive unfair dismissal and wrongful dismissal succeed. The complaints of protected disclosure detriment, protected disclosure dismissal and the wages breach of contract claim do not succeed and are dismissed. The claimant’s claim has succeeded in part and her complaint under Section 38 of the Employment Act is therefore also upheld. The amount of any sum payable under Section 38 is a matter for any remedy hearing.

[311]The parties should write to the Tribunal within 28 days with their proposed directions for a remedy hearing (ideally jointly) and with a time estimate for a remedy hearing. It may be that Employment Judge Harfield will be able to approve the proposed directions but, if not, a short case management hearing can be arranged.

Discussion and Conclusions

[1]I have undertaken a preliminary consideration of the claimant’s application for reconsideration of the liability judgment. The application says: “The claimant believes that it is necessary for the judgment to be varied due to an analysis of the following submissions not being considered:• The two versions of the letter of the 12 March 2017 at pages 437- 440 of the bundle and pages A1-A4 and A5-A13 of the supplementary bundle referred to at paragraphs 14 and 21 (first bullet point on page 13) of the claimant’s submissions and at paragraph 15 of the respondent’s submissions. EJ Harfield has failed to analyse these documents which in the claimant’s case are central to her claims. It is the claimant’s view that this document evidences issues of credibility of the Respondent’s witnesses. In accordance with rule 70 of the ET Rules, it would therefore be in the interests of justice to vary the judgment by entering a finding of fact on the above outstanding submission in relation to the above listed evidence. We further consider that making the order requested would be in accordance with the overriding objective because it would ensure that the parties are on an equal footing and avoids any delay, so far as compatible with proper consideration of the issues.”

The law

[2]An application for reconsideration is an exception to the general principle that (subject to an appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).

[3]Under Rule 72(1) I may refuse an application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.

[4]Under Rule 61 of the Employment Tribunal Rules of Procedure a Tribunal may either announce its decision in relation to any issue at the hearing or reserve it to be sent to the parties as soon as practicable in writing. Rule 62(1) provides that the Tribunal shall give reasons for its decision on any disputed issue, whether substantive or procedural and in the case of a decision in writing, the reasons shall also be given in writing. Under Rule 62(5) in the specific case of a Judgment, the reasons shall: “identify the issues which the Tribunal has determined, state the findings of fact made in relation to those issues, concisely identify the relevant law, and state how that law has been applied to those findings in order to decide the issues.”

[5]As the Court of Appeal recently reiterated in Simpson v Cantor Fitzgerald Europe

[2020] EWCA Civ 1601

, the point of the rule, in relation to Judgments, is to enable the parties to know why they have won or lost. The Court of Appeal re-stated the classic observation from Meek v City of Birmingham District Council

[1987] IRLR 250

: "The duty of an industrial tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the parties to give some explanation of them, but it is not obligatory. So far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the industrial tribunal addressed its mind and why it reached the conclusions which it did, but the way in which it does so is entirely a matter for the industrial tribunal."

[6]The claimant has been represented throughout out the proceedings. The issues to be decided in the case were set out in the agreed list of issues which the written Judgment faithfully addresses. The claimant won her constructive unfair dismissal and constructive wrongful dismissal complaints. She did not succeed in her protected disclosure complaints or her breach of contract (wages) claim. The written Judgment explains why the claimant won what she won and lost what she lost. She did not succeed in her whistleblowing complaints principally because the Tribunal ultimately concluded she had not made qualifying protected disclosures. That decision did not depend on the provenance of the two versions of the grievance letter (it was based on the original version which it was accepted the claimant had submitted). The conclusions about the breach of contract (wages) claim did not relate to that grievance letter. The claimant’s constructive unfair dismissal claim succeeded in relation to many of the pleaded issues (allegations of breach of trust and confidence) relating to the handling of the claimant’s grievance summarised at paragraph 252(d), (e), (f), and (j)(ii). The detailed reasons are set out in the Judgment. The two different versions of the letter of 12 March 2017 was not a specific pleaded issue / in the list of issues (for example, as being an allegation of breach of trust and confidence) that the Tribunal was obliged to expressly address in its reasons.

[7]The written Judgment therefore complies with Rules 61 and 62 and the underlying legal principles relating to the provision of reasons. The written Judgment clearly identifies the issues which were determined (following the agreed List of Issues) and sets out the Tribunal’s decision in relation to the particular complaints the claimant brought, and the reasons why she won or lost.

[8]There has not been a failure to analyse documents that are “central to the claimant’s claim.” The written Judgment is the written reasons that the Tribunal produces to explain its decision on the issues before it; it is not, and is not intended to be a comprehensive record of the Tribunal’s evaluation of every point put before the Tribunal or considered by the Tribunal in our deliberations. To require a Tribunal to produce such a written record would be completely disproportionate (see Rule 62(4)). The written Judgment in this case already extends to 94 pages.

[9]Furthermore, the reconsideration application does not address the point of how it is said the finding sought would result in the variation of the original decision reached, such that it could be said to be in the interests of justice to address the application. Based on what is currently before me, I cannot see how it could for the reasons already set out above. The issue of the credibility of the respondent’s witnesses is raised in the application, but it is not said how that links through to ultimate decision in the case on the heads of claim that the claimant either won or lost.

[10]Ultimately, it appears the claimant is seeking an additional finding of fact she would like to being expressly made and recorded, as opposed to varying the actual decision reached on the heads of claim. In my judgement, such a request does not accord with the purpose of written reasons or the purpose of a reconsideration application. They do not exist as a means for a litigant to get a Judgment to say something they would like it to say about the other party. The way in which a Tribunal expresses its Judgment in its reasons is a matter entirely for the Tribunal provided the basic principles are satisfied.

[11]In summary, I am satisfied on the basis of what is before me that there is no reasonable prospect of our original decision being varied or revoked. The application for reconsideration is therefore refused.

Introduction

[1]The remedy hearing came before us on 7 January 2022 following our liability judgment dated 30 May 2021 in which the claimant’s ordinary unfair dismissal and wrongful dismissal complaints were upheld. The other complaints of protected disclosure detriment, protected disclosure dismissal and breach of contract (wages) were unsuccessful and dismissed.

[2]On 5 January 2022 the claimant made an application (not opposed by the respondent) to postpone the remedy hearing, on the basis that the parties had agreed a settlement sum but were yet to agree settlement wording. EJ Harfield rejected the application on 6 January 2022 on the basis that if the sum was agreed the parties should have sufficient time to agree wording. More time was given to the parties on the morning of 7 January 2022 while the Tribunal had some reading time. The parties were unable to agree terms because of a dispute about costs. It appears that dispute would always have been a bar to the parties agreeing settlement.

[3]The claimant had been represented by solicitors throughout the proceedings. On the evening before the hearing the claimant emailed the Tribunal to say that her solicitors remained on the record, but she would be appearing in person at the hearing because she had been informed her solicitor did not have capacity to represent her. EJ Harfield therefore directed the claimant’s solicitor to attend the start of the hearing to explain what had happened with regard to representation. The remedy hearing notification had been sent to the parties on 25 October 2021 and the date had therefore been well known to all parties for some time.

[4]The claimant and the claimant’s solicitor’s accounts differed somewhat in relation to representation arrangements for the hearing and they are matters in respect of which the Tribunal does not need to adjudicate. However, ultimately the claimant’s position was that she was not in a position to fund representation for the remedy hearing and that would be the position and her decision whenever the remedy hearing took place. The claimant confirmed she was not making a postponement application on the basis of a lack of representation. Neither party had made any other effective applications.

[5]The claimant’s solicitor was therefore released from attendance at the hearing and the remedy hearing proceeded with the claimant representing herself. We had before us a remedy bundle provided by the respondent’s solicitors. We also had before us a remedy witness statement from the claimant, 3 payslips which she wished to rely upon and a list from the claimant of pages within the bundle from the liability hearing that she wished to rely upon. We heard evidence on oath from the claimant. We took an extended lunch break so that the claimant had sufficient time to prepare any closing comments she wished to make and also time to consider the legal framework relating to the calculation of a week’s pay under the Employment Rights Act, which is central to the remedy dispute in this case. Mr Bunting also emailed the claimant to identify the key piece of case law he was relying upon in this area, so that the claimant would have time, as a litigant in person to prepare. We have not repeated the parties’ closing submissions here, but we took them fully into account. We reserved our decision as there was insufficient time for the panel to deliberate and to deliver an oral judgment. In fact, we were unable to complete our deliberations and did so on a further day in chambers on 17 January 2022. The issues to be decided

[6]Having read the remedy bundle (and in particular the schedule of loss and counter schedule of loss) and the claimant’s witness statement we identified with the parties that the key areas of dispute appeared to be:(a) The calculation of a week’s pay under the Employment Rights Act;

(b) The calculation of the basic award (particularly in relation to the calculation of a week’s pay);

(d) The mitigation of loss for the purposes of the compensatory award;

(e) The amount of any award for loss of statutory rights;

(f) Whether the claimant was entitled to an Acas uplift and the calculation of such an uplift;

(g) The size of the award to the claimant under Section 38 of the Employment Act;

(h) The calculation of the statutory cap that applies to the claimant’s compensatory award (and in particular the calculation of a week’s pay);

(i) The calculation of any separate wrongful dismissal award.

[7]We also noted, dependent upon our primary findings, that there may be issues arising in relation to taxation and the need for grossing up, and also recoupment in respect of social security benefits. We explained these concepts to the claimant. The relevant legal principles Basic award

[8]Under section 118 Employment Rights Act (ERA), where the award sought in a successful unfair dismissal claim is compensation, the award must consist of a basic award and a compensatory award. The basic award is calculated in accordance with sections 119 to 122 ERA. The amount awarded depends on whole years length of service, age and a week’s pay. It is a week’s pay that is in dispute in this case.

[9]A week’s pay is in turn calculated by Part XIV Chapter 2 ERA. Section 220 states that the amount of a week’s pay of an employee shall be calculated for the purposes of the Employment Rights Act in accordance with that chapter.

[10]Section 221(1) and (2) says: “(1) This section and sections 222 and 223 apply where there are normal working hours for the employee when employed under the contract of employment in force on the calculation date. (2) Subject to section 222, if the employee’s remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of a weeks’ pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week”

[11]Section 234 is concerned with normal working hours. It states: “(1) Where an employee is entitled to overtime pay when employed for more than a fixed number of hours in a week or other period, there are for the purposes of this Act normal working hours in his case. (2) Subject to subsection (3), the normal working hours in such a case are the fixed number of hours. (3) Where in such a case –(a) The contract of employment fixes the number, or minimum number, of hours of employment in a week or other period (whether or not it also provides for the reduction of that number or minimum in certain circumstances), and

(b) That number or minimum number of hours exceeds the number of hours without overtime, The normal working hours are that number or minimum number of hours (and not the number of hours without overtime).”

[12]The Court of Appeal addressed section 234 in relation to overtime and normal working hours in Tarmac Roadstone Holdings Ltd v Peacock and others

[1973] ICR 273

. It was held there were 3 different categories of overtime:(a) Guaranteed compulsory overtime where, even if the employee is not called upon to work the overtime, the employer is obliged to pay for it. Overtime of this nature is included in normal working hours;

(b) Voluntary overtime, where an employer cannot compel an employee to work overtime and does not have to provide it. Such overtime is excluded from normal working hours;

(c) Non guaranteed overtime, where an employee is obliged to work overtime if required by the employer but imposes no obligation on the employer to provide overtime or offer payment in lieu. Such overtime is again excluded from normal working hours.

[13]In the Tarmac case the claimant’s contract provided for payment of overtime rates when he worked more than 40 hours. He was obliged to work overtime, and he regularly worked more than 57 hours a week. However, the employer was not obliged to provide overtime and the claimant’s weekly pay fell to be calculated on the basis of a 40 hour week.

[14]Section 227(1)(a) states that for the purpose of calculating an unfair dismissal basic award the amount of a week’s pay shall not exceed a specified figure. The figure is changed by Order each year and is referrable to the effective date of termination. For the period 6 April 2018 to 5 April 2019 the cap on a week’s pay was £508. Compensatory award

[15]The compensatory award is governed by sections 123 and 124 ERA. In particular section 123 says, where relevant:(1) Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable and in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

(2) The loss referred to in subsection (1) shall be taken to include – (a) Any expenses reasonably incurred by the complainant in consequence of the dismissal, and (b) Subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal. … (4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales…

[16]Section 124 sets a limit on the amount of a compensatory award calculated in accordance with section 123. The amount is the lower of a given figure that is updated every year or 52 multiplied by a week’s (gross) pay of the person concerned. Unlike the basic award, the week’s pay is not capped by the statutory maximum of £508 but it does still fall to be calculated in accordance with Part XIV Chapter 2 ERA. It is this 52 week cap that applies in the claimant’s case to the maximum that can be awarded by way of a compensatory award.

[17]Section 124A states: “Where an award of compensation for unfair dismissal falls to be –(a) Reduced or increased under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (effect of failure to comply with Code; adjustment of awards), or

(b) Increased under section 38 of that Act1 (failure to give statement of employment particulars), The adjustment shall be in the amount awarded under section 118(1)(b) [calculation of a compensatory award] and shall be applied immediately before any reduction under section 123(6) or (7).”

[18]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.”

[19]Section 207A(5) provides that where an award falls to be adjusted under that section and under section 38 of the Employment Act 2002 the adjustment under Section 207A is made first. Section 207A(1) states that the section applies in respect of claims proceeding before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2. The schedule includes unfair dismissal claims and claims brought for breach of contract under The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. Discussion and Conclusions Basic Award

Discussion and Conclusions

[20]It is not in dispute that the claimant’s is entitled to 1.5 weeks’ pay for her 6 years of complete service. What is in dispute between the parties is the value of a week’s pay. The respondent states that the claimant was earning gross annual pay of £24,180 a year and therefore her gross weekly basic pay a week was £465.00. They assert that in any event the maximum that can be awarded for a week’s pay for the basic award is capped at £508 a week. The respondent’s position is that the claimant was contracted to work 27 hours a week in respect of which she was paid a salary.

[21]The claimant asserts that the calculation of a week’s pay under ERA should be higher than the amount of £465. To the best the Tribunal could understand her position it was that:(a) There had been an express oral variation to her contract of employment that she would work full time at 37 hours a week instead of her previous part time hours of 27;

(b) Alternatively, there had been a variation to her contract of employment to full time hours by custom and practice;

(c) Alternatively, again, she was entitled to guaranteed overtime (by way of an express or implied variation of her contract) to take her up to 37 hours a week.

[22]The claimant’s witness evidence was that on 27 July 2017 the respondent’s chairs committee decided that the post of Clerk should be considered to be a full time post. She relies on the minutes of the meeting contained in the remedy bundle (she was not actually present at the meeting). The minutes state: “3. FUTURE NEEDS AND STAFF RESOURCES3.1 Agreed that based on increasing responsibilities for the Town Council Needed to re-examine the current staff resources and increase them.

3.2 Agreed that the posts of Clerk and TSO should be considered as full-time posts and that the arrangements for the Finance Officer should be reviewed.

3.3 Agreed that if the roles, times and workload for posts are changed or increased the posts should be advertised.”

[23]The claimant says that previously when she had worked occasional additional hours she was paid at enhanced overtime rates of time and a half or double time. She says that as the Council and her role became 1 There appears to be a drafting error in the legislation and properly read this is in fact a reference to section 38 of the Employment Act 2002 busier, she was working long hours and the equivalent of full time. She says at that time Councillor Owens told her that due to the significant increase in her working hours and the respondent’s recognition that her hours should be regarded as full time hours, and that all of her hours worked would be paid at the normal flat rate. She says she was told this was an interim arrangement until the job evaluation process was complete when she would receive a new written full time contract. She says she was told to notify Councillor Owens of the additional hours worked. The hours were then sent by the claimant to Carmarthenshire County Council who ran the payroll.

[24]The claimant says that her January payslip only shows an additional 17.3 hours being paid at flat rate because she had some leave at Christmas and the offices were closed for a period. She says that her February payslip then shows she was paid an additional 40.3 hours for the month of January and in March she was paid an additional 41 hours (for February). She says that full time hours for the respondent are 37 a week. She says that whilst she was on sick leave she only received sick pay based on 27 hours a week not 37 but that she was not in a position to challenge the level of her pay at that time.

[25]The respondent did not accept that there had been any contractual variation to move the claimant to full time hours or guaranteed overtime. Mr Bunting said that the claimant’s witness statement had only been received the evening before the remedy hearing and the respondent had not appreciated, from the meeting minutes alone, that this was the nature of the claim the claimant was bringing. He said the respondent had therefore not been in a position to call a witness. He accepted, however, that he was not seeking a postponement to do so.

[26]In the Tribunal’s judgment the chairs committee meeting minutes read as agreement being reached amongst the committee chairs that the requirements of the Clerk’s post (and TSO) were for full time hours and looking forward that is what they would be moving towards as opposed being to a unilateral decision to change the claimant’s contract there and then to a full time contract. This is supported by the reference to the need to advertise posts and also by what happened next as to what was said to the claimant and what happened with her hours and pay.

[27]We consider it likely, and find, that Councillor Owens then said to the claimant words to the effect that they knew the claimant needed to work longer hours than her 27 hours, that when the job evaluation process was sorted the claimant would be given a contract for full time hours, but in the meantime she could work additional hours up to full time as needed and if she notified him of the hours she would be paid. However, given the frequency of these hours they would be paid at the plain time rate. The claimant was expecting the job evaluation process to be completed in fairly short measure. She therefore agreed, notwithstanding the reduction in the rate of pay. We have reached this conclusion as it is the most natural fit as to what happens with the reporting of the claimant’s additional hours to Councillor Owens and Carmarthenshire County Council’s administration of those hours on the payslips where they are recorded as overtime and paid at the plain rate (notification of which was given by the claimant herself). It is also similar to the arrangement that the Tribunal recalls from the liability hearing was put in place for the TSO at the time. It also fits with the claimant only being paid for those additional hours when she actually worked them, and hence why they were not paid when she was on holiday, or on sick leave and why the figures vary from month to month as opposed to always being based on 37 hours a week. We also consider that if the claimant had been guaranteed 37 hours work a week (whether a change to her primary working hours or whether by way of guaranteed overtime) it is something she would have challenged during her sick leave and thereafter as she would have considered herself underpaid.

[28]Based on these findings of fact, we do not find that there was an express variation of the claimant’s contract agreed between her and Councillor Owens that she was now employed on a full time contract.

[29]There is no clear authority as to whether a variation in a term in a contract of employment can be implied through custom and practice.2 However, for a term to be implied into an employment contract by way of custom and practice requires that the term be reasonable, notorious and certain. This means that the custom must be fair and not arbitrary or capricious, that it must be generally established and well known, and it must be clear cut whether in a particular trade or industry, a particular locality or by a particular employer. The basis behind the principle is that parties in the trade/ industry/locality/employer were aware of the long term custom and tacitly agreed it should be part of their contract without any need to put it in writing. We do not find that there was a custom or practice that the claimant worked on a full time contract. There was no long term employer or trade wide practice that was notorious and certain.

[30]It may be that the claimant’s argument was intended to be that variation to her contract should be implied from the conduct of the parties. Variation can sometimes be implied where the employee’s conduct, by 2 See Solectron Scotland Ltd v Roper and others

[2004] IRLR 4

continuing to work without protest to the new term, is only referable to their having accepted new terms imposed by the employer. We do not find there was such an implied variation here. On our findings of fact, the variation being offered to the claimant about how overtime would be handled until the job evaluation process was complete, not a change at that time to the claimant’s baseline contractual hours. The conduct of the parties is referrable to how overtime would be handled, not to a change to full time hours.

[31]On the face of it, therefore, the claimant had normal working hours of 27 hours a week. But we then have to address the claimant’s secondary argument her overtime then falls to be included within normal working hours. Again, we do not find that is the case. We do not find that the overtime was guaranteed, compulsory overtime. To be so the employer has to be obliged to pay for the overtime even if the employee is not called upon to work it. We do not consider that such a suggested arrangement or agreement corresponds with the facts as found in this case. If 10 hours overtime were guaranteed a week (or the equivalent monthly provision) there would be no need to record the hours and notify them to Councillor Owens and in turn to the County Council for payment purposes. Moreover, the claimant would have been paid the hours when sick, when on holiday or when the council offices were closed (and she would have challenged it if she was not). The claimant’s situation instead was one where the respondent had no obligation to provide overtime or offer payment in lieu. Like in the Tarmac case, that the claimant may have regularly worked more than her base line hours does not mean that it meets the relevant test in section 234.

[32]It follows that sections 234(1) and (2) apply. The claimant was entitled to overtime pay when employed for more than a fixed number of hours (27) in a week. The normal working hours are the fixed number of hours of 27. Under Section 221(2), if the claimant’s remuneration did not vary with the amount of work done in that period, the amount of a week’s pay is determined by: “the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week.”

[33]In University of Sunderland v Drossou [2017[ ICR D23, the Employment Appeal Tribunal found that an employer’s occupational pension contributions formed part of a week’s pay. It was held that remuneration is a reward in return for services and employer’s pension contributions met that test.

[34]It follows that a week’s pay should be what is payable to the claimant under her contract of employment on force on the calculation date, which can include employer pension contributions.

[35]At the time of the claimant’s dismissal the job evaluation process had not completed. New contractual terms had not been agreed. In our liability judgment we also addressed the point that there had also been no effective variation to the claimant’s pay rate from SCP 36 to 38 because there had been no acceptance on the part of the claimant to that proposed variation. As such, and whilst the Tribunal appreciates that the claimant here was a victim of the respondent’s delays, a week’s pay falls to be assessed on the basis of her contractual position of her existing rate of pay at 27 hours a week.

[36]The claimant in her oral closing submissions gave us the rate for SCP 36 of £38,813 which she said was in place from March or April 2019. The difficulty with that, however, from the Tribunal’s perspective is that the claimant’s effective date of termination was in February 2019 which would be before the annual uprating of pay awards in the April. In our judgment, the most reliable indicator of the claimant’s contractual rate of pay at the time of the termination of her employment comes from her payslips. These show (for example at [1529] from the liability bundle) the claimant receiving basic gross pay each month of £2015.03. That equates to £24,180.36 a year on a part time contract of 27 hours a week (the full time equivalent would be £33,136.05). 37. £24,180.36 divided by 52 is gross pay of £465 a week, which is the figure given by the respondent in their counter schedule of loss. The claimant was, however, also in receipt of employer pension contributions. In her schedule of loss she asserts this has a value of 23.5%. The respondent does not deal with the pension claim in their counter schedule. No other information is given by either party about the pension scheme. Looking at the claimant’s pay slips, it would appear that employer pension contributions are valued at 19.6%. That would give a weekly value of £91.14. Added to £465 that totals £556.14 a week.

[38]This figure of £556.14 for weekly pay is above the statutory cap on a week’s pay which at the time was £508. In terms of the basic award, the figure is therefore capped at £508. The respondent’s calculation at £4572.00 is therefore the correct one and is the sum we award for the basic award. Compensatory award Financial Losses What the claimant would have earned if the dismissal did not happen

[39]The claimant is seeking immediate financial losses of pay and pension until 15 March 2021 when she found new employment. The respondent asserts that the claimant has failed to mitigate her losses in seeking new employment.

[40]We have to determine the loss sustained by the claimant in consequence of her dismissal in so far as that loss is attributable to action taken by the respondent. Before considering the question of mitigation we therefore have to firstly consider what would have occurred to the claimant but for the dismissal. What net pay and benefits would the claimant have earned but for the dismissal? What are the sums the claimant reasonably expected to receive if she had remained in employment? That is a point that neither party addressed us on in any meaningful way whether in evidence or by way of submissions. Given the complicated factual background it is also a question that is very difficult to answer. But it is an assessment as a Tribunal that we have to make doing the best that we can on the information we have and looking at the likelihood, in our judgment, of the sums the claimant would have become entitled to if she had not resigned/been dismissed. That can include overtime, whether contractual or not, where there is a reasonable expectation that it would have been worked and likely pay increases. The losses have to flow from the dismissal i.e., the claimant’s acceptance of the repudiatory breach rather than the employer’s repudiatory conduct itself. However, we also have to consider that point from the perspective of assuming that this employer would act in a fair and rational way. To do so otherwise would not be awarding an amount we consider is just and equitable under section 1233.

[41]We consider it likely that if the claimant were not dismissed/resigned then she would have returned to work with some measures in place. We consider it likely that those measures would have involved prompt resolution of the claimant’s outstanding pay evaluation. In our liability judgment we made a finding that the understanding of the parties was that Mr Egan’s pay evaluation would be the guiding report as to what would happen next in terms of the claimant’s pay. We noted that the respondent, whilst saying they did not accept Mr Egan’s assessment, had not been able to clearly set out exactly that it was they said he had got wrong. We found that to act in a manner compatible with maintaining trust and 3 See in this regard Toni and guys (St Paul’s Limited) v Georgiou

[2013] ICR 1356

and also (albeit in the context of discretionary bonuses) Horkulak v Cantor Fitzgerald International

[2005] ICR 402

. confidence the respondent should have promptly clarified any issues they did in fact have with Mr Egan’s analysis, and then made a rational, reasonably prompt, non-capricious decision in good faith about the claimant’s pay that also reflected the expectation that Mr Egan’s report was the agreed guiding framework. We found that would also involve proper consultation with the claimant. We found that it is a process which, if done fairly and appropriately, should not have taken long. We did not accept that the respondent had an intention to get a further comparative report from Carmarthenshire County Council and held that in any event if the respondent had done so that would have in itself been a breach of trust and confidence and would not have been in good faith.

[42]Bearing in mind those findings, we are of the view that the if this employer had been acting fairly and in good faith the claimant’s return to work would have involved prompt negotiation and resolution about the claimant’s pay, her hours of work and the issue of back payment. We further consider that it is likely the respondent, given their previous commitment, would have resolved that they needed to honour Mr Egan’s pay evaluation. They were also aware of the need to move the role over to full time hours rather than continuing to pay overtime. Mr Egan’s conclusion was that the Town Clerk should be on LC3 Points 48-51 which he says in salary terms in 2017/18 equates to £42,899 to £46,036 per annum pro rata ([608] in the liability bundle). That represented a significant increase for the claimant and a significant increase in cost for the respondent, compounded by the potential for backdating. The respondent had indicated it would apply backdating to 10 July 2017 the claimant was seeking further backdating again. It seems inevitable that the implications of Mr Egan’s pay evaluation would have been beyond anything that the respondent had budgeted for, and they are primarily funded through the precept. There would therefore have been a limit on their means.

[43]Taking that all into account we consider it most likely that the respondent would have sought to agree a deal with the claimant that she would be moved to full time hours at the bottom of the pay scale given by Mr Egan but on the basis that there would be no backdating. The issue of backdating would have been complicated in any event because of the overtime the claimant had worked. We cannot see that the respondent would both pay the claimant overtime pending being moved to a fulltime contract and then also backdate such pay. We consider that the claimant would have been likely to agree to such a proposal. The respondent’s resourcing situation had never been lost on her and she had been patient with the time the respondent had been taking to resolve the pay evaluation process. What she had been seeking was a resolution to that process and a pay evaluation process that was properly and transparently undertaken. It is therefore likely, in our judgment, that such an agreement would have been reached between the parties.

[44]We therefore consider that the claimant’s losses should be calculated on the basis of the pay and pension she would have received at LC3 point 48 through to (before mitigation is considered) the date that she started new employment. We do not have the figure for February 2019. We therefore use the figure of £42,899 given in Mr Egan’s report. We add to that employer pension contributions at 19.6% which would total a further £8408.20 gross a year. The net figures need to be identified. However, before finalising the mathematical calculations we address the point of mitigation. Mitigation

[45]In respect of mitigation the burden of proof is on the respondent to prove that the claimant has acted unreasonably in failing to mitigate. We have to consider what steps were reasonable for the claimant to have to take in order to mitigate her loss. We have to consider whether she did take reasonable steps to mitigate her loss and to what extent, if any, the claimant would have actually mitigated her loss if she had taken those steps. We have to bear in mind that a failure to take a particular reasonable step or steps by an employee is not the same as the employer establishing that a claimant has acted unreasonably in failing to mitigate her losses; it would set the hurdle too high. It was helpfully said in Archbold Freightage Ltd v Wilson

[1974] IRLR 10

that the duty to mitigate will be fulfilled if the claimant can be said to have acted as a reasonable person would do if she had no hope of seeking compensation from her previous employer.

[46]The claimant’s witness statement sets out her evidence on mitigation and there are also some documents, as identified by the claimant, in the original liability bundle. She was also cross examined about mitigation.

[47]After her resignation the claimant initially considered the prospect of returning to be a family law practitioner. She contacted former contacts in local firms to see if there were any vacancies. There were none. The claimant therefore decided to widen her ambit and look at other sectors where she could utilise her legal background and her town council/public sector background. In the 13 months following her resignation, other than the steps set out above to consider a return to family law, the claimant applied for one job. That was post of external reviewer for the Local Government and Social Care Ombudsman in March 2020 [1538 of liability bundle]. She then applied for a job as Assistant Land Registrar in August 2020 [1539],

[48]It appears to the Tribunal that by the Autumn of and then onwards the claimant took more significant steps to apply for work. She applied for a job as a work coach with DWP in October 2020, as Associate Investigation Officer with the Public Services Ombudsman for Wales in or around October 2020, and a role as a chaperone in October 2020. At some point the claimant then applied for and was successful in the role she now has in the NHS. On dates unknown (other than the claimant says it was sometime in 2020) the claimant registered with various job websites that send out alerts including the NHS, the civil service, and linked in. Her search parameters included a wide radius from home for jobs in the NHS, legal, audit, governance, investigations, policing, and policy sectors. In September 2020 the claimant had also applied for jobseeker’s allowance and had the assistance of the Job Centre in looking for work.

[49]We acknowledge that the claimant had been on sick leave prior to her resignation. But we were also not given any medical evidence to suggest that the claimant was medically too unwell to look for work after her resignation. The claimant says that her confidence was knocked following what had happened with the respondent and also that she was hampered in finding work because of geographical restrictions. Burry Port is not immediately surrounded by cities with largescale employers, and she had childcare commitments. We take account of that but also the fact that the claimant has many skills and experience to offer the world of work. The claimant said the covid pandemic made finding employment difficult albeit as time went on it then opened up fresh opportunities for home working. We acknowledge the point; however, the impact of the pandemic was only really first felt in March 2020, over a year following the claimant’s resignation.

[50]We accept that following her resignation the claimant would have needed a period of time to process all that had happened and be emotionally in a position where she was able to look for work. We do not consider, on the evidence available, that would reasonably have been more than about 3 months. It was also a reasonable first step to consider a return to family law and to make the enquiries the claimant did. That would not, however, have been a long process. Thereafter it was reasonable for the claimant to expand her job search to the type of work and the radius that are shown on the job alert documents in the liability bundle. We are mindful of the burden of proof and the absence of any alternative job adverts being put forward by the respondent. However, standing back and looking at it we are unable to accept that if the claimant had been actively pursuing such searches there would only have been, in the first year, one potential job (i.e., the external reviewer job) thrown up. Looking at the ambit of the claimant’s job search alerts and the jobs we later see the claimant applying for, we simply do not find it plausible that there was only one job in 13 months that the claimant could apply for within those parameters. We therefore do not consider that the claimant, until around September 2020, took reasonable steps to mitigate her loss.

[51]Turning to the question of what extent, if any, the claimant would actually have mitigated her loss if she had taken such steps, we consider that it is likely the claimant would have been able to secure equivalent work by January 2020. We have factored in the claimant needing about 3 months to be in a position to be able to start looking for work, time then to search for work, make applications, go through various application and interview processes, and the time involved in securing a job offer and then starting work. We consider that with reasonable steps taken in mitigation the claimant should have been in a position to return to equivalent work by January 2020.

[52]Turning to the mathematical calculation we have decided to deal with the claimant’s notice pay claim separately below in relation to the wrongful dismissal claim. The start of the period of financial losses for the unfair dismissal compensatory award therefore commences 6 weeks after the effective date of termination which is 26 March 2019. If the claimant had not been dismissed, she would have been paid the appropriate net income for the period 26 March 2019 to 1 January 2020 at the gross rate of pay of £42,899.00. In addition, the claimant lost the value of employer pension contributions at 19.6% worth £8404.20 gross. The total gross benefits package would therefore be £51,303.20. Netted down using standard tax rates as at the 2019/2020 tax year would give a weekly net figure of £736.38. 26 March 2019 to 1 January 2020 is 40 weeks. 40 x £736.38 = £29,455.20 net loss of pay and benefits in the period. Loss of statutory rights

[53]The Tribunal awards the sum of £500. We consider that is the appropriate sum, being approximately the value of a week’s pay at the time of the claimant’s dismissal. This takes the compensatory award to £29,955.20. Acas Uplift

[54]The respondent asserted that no Acas uplift should be awarded as there had not been any specific breaches of the Acas Code identified and that any failure that may be identified by the claimant could not be said to be an unreasonable failure. Thereafter it was said that the Tribunal had a residual discretion such that it would not be just to award and uplift and even if that discretion were exercised any uplift awarded should be a small one bearing in mind this was a modest sized organisation.

[55]The claimant submitted that breaches of the Acas Code of Practice relating to grievances had been identified, particularly in relation to not having been given a full copy of the grievance investigation report, not concluding the claimant’s grievance, not giving the claimant a final grievance outcome letter, not giving the claimant the right of appeal, and not honouring the proposed grievance outcome in terms of being open with the claimant about the pay evaluation process, its results, or the offer of a right of appeal about pay evaluation (paragraph 252(d), (e ) and (f) of the liability judgment. The respondent’s counsel was asked if he had any further submissions to make in response to this, and he said he did not.

[56]The claim to which these proceedings relate does concern a matter to which a relevant Code of Practice applies. The claimant’s grievance, and its handling, is a substantial part of the backdrop to the claimant’s constructive unfair dismissal claim, including that part of the claimant’s grievance that related to the pay evaluation process. We do consider that our liability findings amount to a finding that the respondent had failed to comply with the Acas Code of Practice relating to grievances in relation to that matter. The Code Provides that “employers… should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.” It states, “Following the [grievance] meeting decision on what action, if any to take. Decisions should be communicated to the employee, in writing, without unreasonable delay and, where appropriate, should set out what action the employer intends to take to resolve the grievance.” It states, “Employers should allow an employee to appeal against any formal decision made.” The findings of fact show those principles were not met and we find that these failings were unreasonable for the reasons already set out in the liability judgment.

[57]We do consider it just and equitable to increase the award to the claimant. Our findings of fact included that the grievance outcome suggested to the claimant in the meeting was that Mr Egan would undertake his job evaluation and that would be the guiding basis for concluding the job evaluation. It was said the claimant would be given the detailed results of the process and the right of appeal. The respondent then did not do this, and we found that the respondent had deliberately sat on Mr Egan’s report because they found its content to be unpalatable. The respondent therefore obstructed and did not honour what they said they would do. There was no actual grievance outcome letter and thereafter no right of appeal. This was significant conduct, particularly in relation to the pay evaluation side of the claimant’s grievance.

[58]We do not award the maximum 25% because we have taken into account the fact that the respondent did have a grievance process that it initially followed, including the proper appointment of Mr Egan to investigate the grievance and report. We have decided in the circumstances that it is just and equitable to award an uplift of 15%. That produces an additional sum of £4493.28

Section 38 Employment Act 2002

[59]The respondent submits that only 2 weeks’ pay should be awarded on the basis that this was a small employer and they had made some attempt to resolve contractual issues. We award the full 4 weeks. The claimant’s statement of particulars of employment had been outstanding for 6 years. The four weeks’ pay which is capped at the maximum limit on a week’s pay at the time of the claimant’s dismissal. 4 x £508 = £2032.00 Grossing up

[60]The total awards are:• Basic award £4572.00

• Loss of earnings/pension £29.455.20

• Loss of statutory rights £500.00

• Acas uplift £4493.28

• Section 38 EA award £2032.00

• This totals £41,052.48.

[61]The award exceeds £30,000 by £11,052.48 which must be grossed up. The claimant is earning £40,057.00 in her new employment. We presume that will exhaust her tax free personal allowance in the current tax year. The basic rate of tax runs from £12,571 to £50,270. We therefore presume that the claimant’s earnings in her new employment will all be taxed at the basic rate and would use up £27,487 of that tax band leaving sufficient room in the basic rate tax band for the element of the tribunal award requiring grossing up to also fall within it. The award would therefore be taxable at the basic rate of 20%. 62. £11,052.48 /80 x 100 = £13,815.60. The tax element is £13,815.60 minus £11,052.48 = £2763.12. The sum of £2763.12, representing tax due, therefore needs to be added to the compensatory award. Application of the statutory cap

[63]The calculations prior to the application of the statutory cap are:• Basic award £4572.00

• Loss of earnings/pension £29.455.20

• Loss of statutory rights £500.00

• Acas uplift £4493.28

• Section 38 EA award £2032.00

• Grossing up £2763.12

[64]The compensatory award prior to application of the cap totals £39,243.60. The statutory cap applied is £28,919.28 (52 x weekly pay of £556.14). The claimant is therefore awarded for her unfair dismissal claim a basic award of £4572.00 and a capped compensatory award of £28,919.28. We would add that it seemed likely to us that whatever way we approached the claimant’s losses flowing from her dismissal and the question of mitigation, the outcome in terms of the cap would have remained the same. The law is also clear that all of the above adjustments and calculations must be undertaken before the application of the statutory cap. Notice pay

[65]The claimant succeeded in her wrongful dismissal claim. It is not in dispute that she was entitled to a notice period of 6 weeks. The claim is a contractual one and the claimant is entitled to a sum that would put her in the position she would have been in had the contract been performed by the employer lawfully terminating the contract. The claimant is therefore entitled to the benefits she could have received had she remained in employment until the end of her notice period. Awards for post employment notice pay are treated as taxable by HMRC and should be awarded gross. We award 6 x £986.68 (to represent gross pay and loss of employer pension) totalling £5920.08.

[66]We also award the Acas uplift of 15% that can likewise apply in a wrongful dismissal claim4. Our reasoning is as set out for the unfair dismissal claim. The uplift is £888.01. Recoupment 66. The unfair dismissal award potentially falls within the remit of the Employment Protection (Recoupment of Jobseeker’s Allowance and 4 See Brown v Veolia ES (UK) Ltd (

UKEAT/0041/20/JOJ

) Income Support) Regulations 1996. However, under Regulation 8 the requirements do not apply where the Tribunal is satisfied each day for which the prescribed elements relate the employee has not received or claimed any of the benefits in question. The claimant was not in receipt of benefits until June 2020 which is after the period covered by the unfair dismissal compensatory award. The recoupment regulations therefore do not apply.

Introduction

[1]On 15 February 2022 the claimant made an application for a costs order. The application is made on three bases. The first is under rule 76(1)(a) that the respondent or their representative acted vexatiously, abusively disruptively or otherwise unreasonably in the way the proceedings or part have been conducted. The second is under rule 76(1)(b) that the response had no reasonable prospect of success. The third is under rule 76(2) that the respondent has been in breach of any order or practice direction.

[2]We had before us a bundle of documents extending to 193 pages. That bundle contains the claimant’s written application and the respondent’s written response. We also heard oral submissions from both parties. We do not fully summarise those submissions in this Judgement. However, we took the full submissions into account in our decision making. We were able to complete our deliberations on the day. However, there was insufficient time to deliver an oral Judgement.

Legal principles

[3]Rule 76(1) provides that a tribunal may make a costs order and shall consider to do so where it considers that(a) a party or that party’s representative has acted vexatiously, abusively, disruptively or otherwise unreasonably in the way that the proceedings, or part of the proceedings have been conducted or

(b) any claim or response has no reasonable prospect of success.

[4]Under 76(2) a tribunal may also make such an order where a party has been in breach of an any order, or practice direction or where a hearing has been postponed or adjourned on the application of a party.

[5]Rule 76(1)(a) makes provision for a two stage test. The first part of the test looks at whether a threshold criterion has been met, i.e. whether the respondent has acted vexatiously, abusively, disruptively or otherwise unreasonably in the conduct of the proceedings. That is sometimes called the threshold stage. If a tribunal is satisfied that the threshold criterion has been met, it is obliged by the rule to consider whether to exercise the discretion conferred on it by the rule to make a costs order. This is sometimes called the discretion stage.

[6]Factors particularly relevant to the threshold stage include:6.1 Unreasonable has its ordinary meaning and does not mean something similar to vexatious (Dyer v Secretary of State for Employment

UKEAT/183/38

);

6.2 The tribunal must bear in mind that more than one course of action may be reasonable (Solomon v University of Hertfordshire and another

UKEAT/0258/18

[7]Factors particularly relevant to the discretion stage include:7.1 Costs orders are the exception and not the rule (Yerrakalva v Barnsley Metropolitan Council

[2012] ICR 420

CA);

7.2 The discretion must be exercised judicially, taking into account the facts and circumstances (Doyle v North West London Hospitals NHS Trust

UKEAT/0271/11

);

7.3 The party claiming costs does not have to establish a direct causal link between the unreasonable conduct and the costs incurred (D’Silva v NATFHE

UKEAT/0126/09

). However, a cost award is intended to compensate the party to whom it is paid and not to punish the payer (Lodwick v Southwark London Borough Council

[2004] ICR 884

EWCA. Causation can therefore be a potentially relevant consideration as part of looking at the whole picture; and

7.4 The means of the paying party may be taken into account both in deciding whether or not to make an order and, if so, when considering how much to award (Rule 84)

[8]Under 76(1)(b) (the response or part of it had no reasonable prospect of success) there are similar multi stages to the approach to be taken on assessment of a costs application. In Radia v Jefferies International Ltd

UKEAT/0007/18/JOJ

it was described as:8.1 Did the defence or part of it have no reasonable prospect of success at the outset?

8.2 If so, did the Respondent know or ought to have known that at the time?

8.3 When answering these questions the tribunal must be careful not to be influenced by the hindsight of taking account of things that were not, and could not have reasonably been, known at the start of the litigation. It is a question of looking at the information that was known or reasonably available at the time, and considering how, at that earlier point, the prospects of success in a trial that was yet to take place would have looked. 8.3 The final question is whether a costs order is appropriate (as a matter of discretion), and if so in what amount. Rule 76(2) is similarly discretionary.

[10]Under Rule 78 the amount of a costs order made by us cannot exceed £20,000. Above that sum an order has to be made for payment of the whole or a specified part of the costs with the amount to be paid to be subject to detailed assessment Application for costs under Rule 76(1)(b) – response or part of it had no reasonable prospect of success

[11]The claimant says she expended £55,661.66 on representation in these proceedings, and she is seeking to recover of this £50,801.66 which are the costs she says she has expended since 14 November 2018 when she made a settlement offer to the respondent. As set out above, if we decided it was appropriate to award the claimant that specified part of her costs (i.e. cost of representation since 14 November 2018) then our role would be to make that decision, and then the sum would be assessed by way of detailed assessment.

[12]On 14 November 2018 the claimant’s solicitor sent a letter marked without prejudice and subject to contract. The letter said, amongst other things that the claimant would be willing to enter into a formal settlement agreement on terms which included payment in lieu of notice (3 months), an ex gratia payment equivalent to 18 months’ salary with an equivalent payment of pension contributions into the pension scheme, payment for accrued but untaken holiday, an agreed reference, an agreed statement for leaving, and a contribution towards legal costs of £2500. Other than the legal fee contribution, there were no actual figures set out. This offer was made while the claimant was still in employment. She did not resign until 12 February 2019. It was also pre litigation. The claim form was not presented until 3 May 2019.

[13]The respondent responded directly on 13 December 2018. Their letter had at its focus a desire to have a round table meeting and to focus on returning the claimant to the workplace [paragraph 225 Liability Judgment]. In relation to settlement, it said that instructions would be needed from the Town Council but that it was unlikely the Town Council would agree to any discussions based on the terms proposed in the claimant’s letter. Matters then took their course as set out in the Liability Judgment.

[14]During the course of the ensuing litigation, the respondent’s solicitor wrote to the claimant’s solicitor on 2 October 2020 in correspondence headed without prejudice save as to costs. The email said: “As set out in our client’s grounds of resistance and subsequence open correspondence, we remain of the view that your client will not succeed with her tribunal claims against the Respondent. We do not propose to set out all of the weaknesses with your client’s claims here, as we do not consider that it will be helpful at this stage to enter into protracted correspondence regarding this. However, we do wish to highlight the following:• No qualifying “protected disclosures” were made by the Claimant. The alleged disclosures are wholly personal matters and clearly would not meet the threshold to be classed as being “in the public interest”

• Any event, it is nonsensical to suggest that the Claimant was subject to any detriment because of her alleged disclosure. There is numerous evidence showing that the Claimant was supported by the [Respondent] and her requests were considered fully. The Claimant’s claims rest on the fact she wanted to be paid more than she was and her request was not granted. It is not reasonable to suggest that the Respondent should grant every wish of the Claimant and, when this does not happen it amounts to a detriment.

• The Claimant was not automatically unfairly dismissed

• there was no fundamental breach of the implied term of trust and confidence.

• the Claimant resigned of her own volition with immediate effect.”

[15]The email went on to refer to the costs both parties would expend in the litigation and said the respondent would be prepared to engage in reasonable and sensible without prejudice discussions but that the claimant needed to have a realistic view of her claims. It said the Claimant’s schedule of loss was misconceived as to the prospects of success and the value, referring to a claim for back pay of £33,000 that it said the Claimant was not contractually entitled to. It referred to the Claimant not having mitigated her losses. The email then said: “We continue to advise our client that it has excellent prospects of success in defending the claims of the Claimant. Notwithstanding this position, our client has instructed us to make an offer of a drop hands agreement to the Claimant in full and final settlement of her claims. In turn, the Respondent will agree not to pursue the claimant for costs incurred in defending claims which have no prospects of success.”

[16]The offer was expressed to be a commercial one. The e-mail went on to say that if the offer is not accepted and the claimant went on to lose her claims, or was successful but was awarded a sum lower than the value of the offer, then the respondent reserved the right to bring the e-mail and offer to the attention of the tribunal on the issue of costs. The respondent said they would apply to recover their legal costs from the claimant until the date of the final remedy outcome on the basis that pursing the claims was misconceived.

[17]The claimant’s solicitor responded to say that they had tried on numerous occasions to enter into settlement discussions but had been ignored. They asked how the offer was a commercial one when no financial settlement offer had been made; it was just a request for the claimant to withdraw. The claimant’s solicitor pointed out that the claimant could not be awarded a lower sum as no settlement sum had been offered. The respondent was asked to set out whether a financial settlement was actually being put forward and to make a clearer proposal. There is no suggestion that there was then a further response from the respondent’s solicitors.

[18]The claimant says in her application under Rule 76(1)(b) that the Liability Judgment identified numerous breaches of trust and confidence and unreasonable behaviour on the part of the respondent and that their continued defence of her constructive unfair dismissal and wrongful dismissal claim was without merit. She refers to bullet points 3, 4 and 5 in the respondent’s solicitor’s email. She refers to the drop hands offer made on the basis the respondent would not pursue costs against the claimant for claims they asserted had no prospects of success. The claimant says it appears the respondent was encouraged by their solicitors to continue defending these claims as the correspondence stated they had continued to advise their client that it had excellent prospects of success.

[19]In relation to the bullet points in the respondent’s solicitors email of 2 October 2020 relied upon by the claimant, her observation in respect of the third bullet point is incorrect. She did not succeed in her automatic unfair dismissal claim as that is the protected disclosure dismissal claim that was not successful. It is, however, correct to say that we did find that there was a fundamental breach of the implied terms of trust and confidence entitling the claimant to resign and treat herself as being dismissed, and her complaints of “ordinary” constructive unfair dismissal and wrongful dismissal did succeed.

[20]The question therefore is whether the defence of those two claims (which turned on the same analysis) had no reasonable prospect of success from the outset and, if so, whether the respondent knew or ought to have known that at the time? We do not find that was the case.

[21]There were 12 detriments in the whistleblowing detriment claim also relied upon as being breaches of trust and confidence albeit that they were relied upon in the alternative would not necessarily have been known to the respondent at the point they submitted their ET3 response form. There were 11 separate alleged breaches of contract (albeit there was overlap within allegations and between these and the whistleblowing detriment complaints, such that in our analysis we dealt with matters thematically). The claimant succeeded in respect of some allegations and not in others. Those that were successful are summarised at paragraph 252 of the Liability Judgment. We consider it is unrealistic to have expected the respondent, even as a professionally represented respondent, to have anticipated from the outset how all these individual elements would have evidentially panned out to result in the eventual analysis that the tribunal undertook when upholding the claimant’s two successful complaints.

[22]We did also look at the broad themes on which the claimant succeeded. One broad theme of the claimant’s success was in relation to her treatment, at certain times by the Labour Councillors (albeit not all of these complaints were upheld). The respondent’s stance at the time of the ET3 response was that the respondent was not responsible for the individual acts of Labour Councillors. By the time of the liability hearing that was not their position. Whilst it could be said as a matter of law that principle of vicarious liability may have had no reasonable prospect of success from the outset, these complaints were also defended on the basis that they happened long before the claimant’s decision to resign. They would therefore require a “final straw” to revive them, which was the correct analysis.

[23]A second broad theme was about the pay evaluation process. The delays with the job description were lengthy but were historic at the point of the claimant’s resignation. We found the respondent had sought to bury and backtrack from the Egan pay evaluation report because its content was not as expected and unpalatable to the respondent. The respondent’s defence had been that the re-evaluation was being done by the County Council, Mr Egan’s report was there for background comparative analysis and they were waiting for the claimant to return from sick leave before discussing it with her. Having examined all the evidence (and the documentary evidence was limited), and making various inferences, we did not ultimately find this to be the case. But we did not find that Councillor Owens was deliberately lying. We cannot say that the respondent ought to have known from the outset that their evidence on this point was going to be rejected and that that their defence on this point had no reasonable prospect of success.

[24]A third broad theme was about the handling of the claimant’s grievance on the issues other than pay. We found that there were procedural failings in not giving the claimant the full report at the outset, and in not formally concluding the grievance process. However, it was within the context of the respondent having a misguided view of what they should and should not send, and being dependent upon what they thought Mr Egan was guiding them to do procedure wise. These were of course councillors who were volunteers. We cannot say that the respondent ought to have known from the outset that their conduct in this regard was inevitably going to be found to reach the threshold of amounting to a breach of trust and confidence.

[25]A final broad theme was the handling of the correspondence at the end, and in particular the letter of 29 January 2019. We do not consider that the respondent ought to have known at the time of their defence that the concerns we ultimately found about parts of what was said would inevitably have been found to be a breach of trust and confidence and a final straw. For one, the pleaded allegation was broadly put. It was said the respondent ignored most of what the claimant had raised but we found that not to be the case. It was then said that the responses to each proposed step made by the claimant were “either evasive, misleading, untrue, or completely outrageous. It became clear to the claimant that that respondent did not intend to assist her in resolving her grievance and provide a safe working environment.” We did not find that the respondent had ignored what the claimant raised or that they were not trying to assist her in returning to work. The respondent at the point of filing their defence also would not have reasonably anticipated the finer analysis of individual points of the letter that we made in our Liability Judgment.

[26]Some of the letter was misguided, such as redirecting the claimant to the Labour Councillors, but we accepted was born of the respondent wanting to set out that what Labour said was not their corporate position. Some of it was more serious such as the Mr Fox point. But whilst it could be said the respondent if it reflected, for example, on the truth of Mr Fox point, should have known it was an unsustainable statement, we have to place it within the context that the correspondence that was passing between the parties at the time, which was multifactorial. The correspondence came from a place where the respondent had been seeking to engage on steps to return the claimant to the workplace and hold a round table meeting rather than engage in lengthy combative letter writing. We found the respondent had been largely acting in good faith. We found that some of the claimant’s demands had been unrealistic, unreasonable and not focused on assisting with a return to the workplace. Bearing this in mind together with the general way in which the point had been pleaded we do not consider that the respondent knew or ought to have known at the time that our eventual analysis would be what it was. From their perspective at the time of filing their ET3 response, they had an arguable basis on which to say they had been responding, on the whole, reasonably to the situation they were faced with, and in seeking to facilitate discussions to return the claimant to work, and they had a reasonable prospect overall of establishing there was no cumulative breach.

[27]Even if we are wrong in any of the above analysis we would not have exercised our second stage discretion to award the claimant the costs of the proceedings founded on a complaint that the respondent’s defence to the two successful complaints had no reasonable prospect of success. Here we have to look at the whole picture of the litigation. This was a hard fought piece of litigation on both sides. There were measures of success and loss on both sides. The claimant did not succeed in some significant aspects of her case including the equal pay claim that was taken to a public preliminary hearing before EJ Frazer, in establishing she made protected disclosures, the protected disclosure detriment claim did not succeed on time limit grounds, the protected disclosure dismissal claim was unsuccessful, as were the two breach of contract pay claims. These are matters in respect of which the respondent will have likewise incurred significant legal fees in mounting their defence. At the remedy stage the claimant presented various arguments which were not resolved in her favour. These are not the kind of exceptional circumstances in which we consider it appropriate to award the claimant recovery of her legal costs in what is ordinarily a cost free forum. It was a case, as Mr Bunting put it, where the claimant was entitled to bring her claim, and the respondent entitled to defend it. Rule 76(1)(a) – did the respondent or their representative act unreasonably in the way that the proceedings, or part of the proceedings was conducted? Settlement

[28]The claimant’s first complaint is that the respondent did not engage with Acas at the outset or subsequently to consider any attempt at negotiation, despite attempts being made through solicitors. Acas conciliation, is however, confidential and is not a matter that is put before the tribunal, and there is both public policy principles and statutory force behind that. Moreover, Acas conciliation is entirely voluntary and again there are strong public policy principles behind this. The respondent was not compelled to engage and it is not appropriate for the Tribunal to delve into that process. We do not find that it amounts to unreasonable conduct on their part. Acas conciliation that took place before the ET1 claim form was presented would also fall outside the remit of Rule 76(1)(a) in any event as conduct that pre-dates the proceedings cannot be the conduct of the proceedings.

[29]The claimant says the respondent acted unreasonably in not being prepared to consider a settlement prior to the commencement of proceedings. The claimant relies on her letter of 14 November 2018 summarised above. The respondent has not argued that the letter cannot be put before us at all as it is only marked without prejudice, and not without prejudice save as to costs. We have therefore considered it. As set out above, that offer had no monetary calculation within it. As part of these costs proceedings the claimant has attempted to, after the event, place a valuation on it at £38,903.89. She says that in the Remedy Judgment she was awarded £40,299.37. She says it was therefore unreasonable of the respondent not to have accepted the offer and she should be awarded the costs she incurred since 14 November 2018 at £50,801.66.

[30]This is, however, an offer that was made before the claimant resigned at a time in which the respondent was trying to take steps to return her to work. It was an offer that was made before the claimant presented her ET1 claim form. At the time the claimant says the respondent should have accepted the offer there were no proceedings. The non acceptance of the offer at the time the claimant says it should have been accepted cannot therefore amount to unreasonable conduct of the proceedings as there were no proceedings in train at the time. It is also a letter that was not marked “without prejudice save as to costs.”

[31]The claimant says that the respondent failed to respond to each and every approach made by her solicitors to canvass the possibility of settlement in the course of proceedings. She says that the respondent only made the drop hands offer and then ignored her solicitor’s correspondence seeking clarification of what was being offered and seeking a clearer proposal.

[32]In respect of the email of 2 October 2020, whilst it may be oddly worded in parts, its central meaning would reasonably have been clear to the claimant (herself a solicitor) and her solicitor. It was a drop hands offer, for the claimant to withdraw her claims with both parties bearing their own costs, together with an assertion that if the claimant persevered with her case, and was unsuccessful, the respondent would attempt to recover their costs. It was not an attractive offer and as we have said oddly worded in parts. But it was capable of being understood and the claimant’s solicitor capable of giving advice about it. Neither its wording, or the offer itself was the unreasonable conduct of the proceedings. Its the kind of offer, in the cut and thrust of litigation, that a party makes to the other where they consider their own position is a strong one.

[33]The claimant also complains that the respondent did not in the course of proceedings make a better offer than that, or indeed go back and accept her November 2018 offer. There is an overlap here with the claimant’s argument that the respondent’s response had no reasonable prospect of success, hence why we addressed that point first, above. In our judgement, the respondent did not ought reasonably to have known that its defence to the constructive unfair dismissal claim, and wrongful dismissal complaints was inevitably going to fail in the way it did. Moreover, they were entitled to defend the other parts of the claim that they successfully did, including serious allegations of sex discrimination in the form of equal pay litigation and the numerous protected disclosure complaints. It was not unreasonable to defend the litigation and therefore not unreasonable to not make monetary offers to the claimant or to go back and settle in the terms the claimant outlined in November 2018. It also does not follow that the respondent should reasonably have anticipated a picture in which(a) they would lose the litigation in the way that they did,

(b) that the claimant would end up receiving the sum she did in the Remedy Judgment (given the complex arguments there were about that), or

(c) that they would reasonably anticipate the November 2018 offer was better than that which the claimant would be eventually awarded. Not only was the eventual Remedy Judgment award complex and multifactorial, the claimant there did not succeed in establishing the tribunal should use the pay figures she was putting forward, and the claimant is now, after the event, seeking to put a financial figures against the November 2018 offer that were never actually set out at the time. Furthermore evidence as to, for example, mitigation efforts, lay in the hands of the claimant, not the respondent.

[34]The claimant also complains that the respondent unreasonably and without explanation rejected judicial mediation. Judicial meditation is again an entirely voluntary and confidential process. Parties are not required to participate, or to give reasons for not participating or for pulling out. It is a condition of every judicial mediation that anything that is said in a mediation, or indeed not engaging or pulling out of a mediation, will not and cannot be used against that party. Again, there are very strong public policy reasons behind this. It cannot and does not amount to unreasonable conduct of the proceedings. Disclosure of documents, and preparation of the hearing bundle

[35]The parties agreed case management directions with a list of documents to be provided by 23 June 2020. The parties agreed an extension until 14 July 2020 when the claimant provided her list but the respondent did not. The respondent’s list was not provided until 1 October 2020. The respondent’s solicitor said at the time “Please accept our sincerest apologies for the delay in sending this list of documents over to you. As a town council, the COVID19 pandemic has been a primary concern of our client over the last few months as such it has taken longer than anticipated to obtain our client instructions during this time. Please find enclosed the respondent’s list of documents for this case… We have recently requested our client to do one final full check of all potential disclosure documents which may be in their possession relevant to these proceedings. In the event that any further documents come to light, these will be disclosed to the claimant immediately…”. The email then went on to request some copy documents from the claimant’s list and to ask for mitigation documents from the claimant.

[36]A case management hearing took place before EJ Moore on 15 October 2020. EJ Moore directed the parties to complete disclosure by requesting copy documents to be provided by 5 November 2020 with the parties to agree a joint bundle index by 26 November 2020. The respondent was to provide the first draft of the bundle index. The respondent was to give the claimant a copy of the final hearing bundle by 10 December 2020. Witness statements were to be exchanged 14 days before the hearing. The case was listed for final hearing by video on 15 to 27 January 2021.

[37]The respondent did not provide the draft bundle index by 26 November 2020. The respondent’s solicitors that day emailed the claimant’s solicitors questioning the relevance of some of the claimant’s documents and raising some other questions. The claimant’s solicitors responded on 2 December 2020 stating that the documents “are currently referred to in the Claimant’s drafted witness statement and therefore will need to be included in the bundle.” The other queries were responded to. The claimant’s solicitor referred to a request for disclosure made on 29 October 2020. The claimant’s email sought disclosure of 14 documents (we do not know what these were) by 4 December and the remaining disclosure within 7 days. The email said: “Please provide a copy of your current draft bundle index. If this is not received by 4pm on 4 December 2020, our client has advised that she will take over this task for you in order that there is no further delay to the case management orders.” The email said the claimant’s witness statement was 95% drafted with the exception of a final review and insertion of page numbers. The claimant sought reassurance the bundle would be with them by 10 December and that there would be no delay to witness statement exchange.

[38]On 10 December 2020 the respondent’s solicitors stated there had been delay in compiling the bundle, referring to a large number of documents remaining disputed and the time it had taken to construct the bundle digitally without access to office facilities (due to Covid restrictions). It was said that the claimant’s requests for specific disclosure were extremely broad and many were protected under the Public Bodies (Admission to Meetings) Act 1960 that required review and advice, the implication being that this was also delaying finalisation of the bundle. The respondent’s solicitors said that they did not accept they had a valid explanation from the claimant about the relevance of the disputed documents so they said they would add a separate section titled “Claimant disclosure: disputed relevance” or alternatively the claimant could better explain their relevance. A few additional questions were raised by the respondent’s solicitors, with a sign off suggesting they were hopeful the parties could agree the bundle contents the following week.

[39]On 16 December 2020 the claimant’s solicitor emailed to say the respondent was in breach of the case management orders of EJ Moore as copy documents had not been provided by 5 November 2020. The email said that as the respondent’s solicitors had not provided the bundle index by 26 November, the claimant had taken on responsibility and provided an index on 7 December 2020. It was said as the respondent had not provided the copy bundle by 10 December 2020 the claimant had produced the bundle over the weekend of 11 – 14 December 2020 and it was now with the claimant’s solicitors for pagination. The claimant’s solicitors said the bundle would be sent to the respondent’s solicitors “shortly this week.” It was suggested that statements be exchanged on 31 December 2020 as 1 January 2021 was a bank holiday.

[40]The respondent’s solicitors said that delay had been brief and no prejudice caused. They disputed the rationality of the claimant taking over preparation of the bundle stating: “As should be evident from our ongoing communications, we have been continually preparing the bundle over the last couple of months. We confirm that we have today received our client’s instructions on the bundle, notwithstanding the below disclosure outstanding from the Claimant, and we will provide a draft bundle tomorrow, including all new disclosure that you have reasonably requested, that exists, that is in our client’s possession and can be found upon a reasonable search.” The claimant was asked for two wider email chains. The respondent’s solicitors continued to press the claimant for an explanation of the disputed documents by reference to the list of issues. The respondent’s solicitors also responded to the specific disclosure requests.

[41]Some terse emails were then exchanged between the solicitors with there being competing versions of the bundle produced sent to the other party on 17 December. The respondent’s solicitors email timed at 14:20 on 17 December said that the index highlighted in blue documents which had been disclosed at the request of the claimant, and items in green “are further documents our client has found in its possession which it believes to be relevant to this case.” The claimant says that she was not able to open the index until 18 December as the document download was password protected.

[42]At 10:51 on 18 December 2020 the respondent’s solicitors asked for confirmation that the bundle was agreed so that a paginated version could be finalised and provided. The respondent’s representative said she was about to go on leave until 29 December so it would be preferrable to send it out that day. The claimant’s solicitor responded to say that the claimant was still reviewing the index and it would not be agreed by 12 o clock that day. The email highlighted that there were 53 documents highlighted in blue and 18 documents highlighted in green that had not been previously disclosed and other new documents which had not been highlighted at all. Concerns were also raised that some of the claimant’s documents had been omitted and some of her documents remained segregated as disputed, and some documents had been re-labled without explanation.

[43]The claimant says that there were two completely new sections containing 386 pages and one of the new sections were job evaluation notes she had been requesting since 2017. She says that on top of the two new sections there were 46 other new documents highlighted in green and many more new documents that had been added without being highlighted. She says, for example, this included the second version of the internal panel’s full report.

[44]The claimant says that there were hundreds of pages of meeting minutes that were not relevant and had not been requested but were highlighted in blue, suggesting that the claimant had requested them when that was not the case.

[45]On 21 December 2020 the respondent provided a different version of the hearing bundle and index, saying it was the final paginated bundle. The claimant says there was another new section containing 94 pages called “Paul Egan additional disclosure” and with the layout being rearranged without explanation.

[46]The claimant says that this version also removed two groups of her documents without explanation and she had to reinstate them within her own supplementary bundle.

[47]The claimant particularly complains that the respondent included in the final hearing bundle only the 4 page short version of her grievance letter. She says that the respondent insisted until 2 days prior to the start of the final hearing that this version was the correct one. She complains that the respondent was therefore alleging that her version was false and she was lying about a document which the claimant says was a very serious and distressing allegation for her, particularly because of her professional reputation. She says that the respondent only conceded the longer 9 page version was genuine when her barrister pointed out the references in other documents to the 9 page letter, such as within Mr Egan’s report.

[48]On 31 December 2020 the parties exchanged witness statements. The claimant’s solicitor sent a supplementary bundle index and a supplementary bundle saying it contained documents omitted by the respondent once the claimant had crossed checked her disclosure against the “further expanded hearing bundle which differs to the index you sent on the 18 December 2020.” The respondent objected to this saying it was unnecessary and it appeared a large quantity were already in the bundle.

[49]On 4 January 2021 the respondent’s solicitors responded to the claimant’s supplemental list of documents asserting that only 6 documents were in fact not within the bundle and that 3 of these had not been sent to the respondent previously by the claimant. It was accepted that 2 documents appeared to be missing from the bundle, but that their omission was not deliberate and that the claimant could have highlighted this and ask for their insertion.

[50]The respondent’s solicitors expressed uncertainty about three items in the claimant’s supplemental bundle which they said seemed to be a duplication of the first. This was a reference to the 4 page grievance letter, the 9 page version and a marked up version. The respondent said: “The bundle contains the version of the document handed to the Respondent by your client. The hard copy that was provided was photocopied and is contained in the bundle. It appears that this document was duplicated in the initial list of documents provided in mid 2020, however, in light of your client’s comments, please could you explain why your client has a different version of this document than that provided to the Respondent on 12 March 2017?”

[51]On 5 January the respondent’s solicitors emailed again about the supplementary bundle and with some updates to the main bundle. They said their previous comments (that related to the two versions of the grievance letter) also applied to the resignation letter and that: “Our client is only aware of one letter of resignation being handed to Bob John and this is the copy contained in the bundle. Once more, in light of your client’s comments, please could you explain why your client has a different version of this document than that provided to the Respondent on 12 February 2019?” On 6 January 2021 EJ Jenkins conducted a case management hearing. He directed that the bundle and the supplementary bundle both be filed.

[52]On 13 January 2021 the parties’ barristers had an email exchange about various matters relating to preparation for the final hearing. The respondent’s counsel said: “I now have instructions that the version of the complaint letter which R received was the 9 page one at p1376 (which I think we already knew). I have not had a conference with my witnesses yet, but I presently understand that where MT’s statement refers to p437, he is incorrect, i.e. he should be referring to p1376. (As I say, I have not yet heard this from the horse’s mouth as yet). And obviously the correct resignation letter is the one in the supplemental bundle at A78. Regarding the latter, those instructing me have confirmed as follows: “As discussed, please see the letter enclosing our client’s original documents dated 21 March 2019. The original copies were kept in the office. When this dispute arose, we were able to obtain the hard copy of the file (we have been working remotely since March 2020 with no access to the office). The Claimant’s representative asked that the resignation letter be placed in the preliminary hearing bundle, forwarding us a copy of the same (enclosed – which was sent to her by the Claimant). As we viewed the document to be irrelevant for the PH, it was just added without dispute. Due to remote working, the relevant aspects of the PH bundle formed the basis of the main bundle. We had no reason to suspect it was an ”incorrect version” until it was raised by the Claimant after witness statement exchange, therefore did not think to review the hard copy sent by our client until that point…”.”

[53]The claimant’s counsel said he reserved the right to ask some of R’s witnesses why they had said in their statements that the letter sent on 12 March 2017 was the 4 page one, where they got the different version from and why it was still being disputed until that day, and whether the original version had been edited by them at all. He pointed out that this was one of the two alleged protected disclosures and he was concerned witness statements were written saying it was just a complaint about personal issues with Mr Fox.

[54]On 14 January 2021 the claimant’s solicitor emailed asking why the longer, signed version of the grievance letter had not been disclosed and why the respondent had previously been insisting the 4 page version was the correct one. It was asked, amongst other things, where the 4 page version had come from and why two versions had been disclosed by the respondent in a bundle on 1 October 2020 but with an index just referring to one of them.

[55]The claimant’s solicitor’s email also asked questions about the two versions of the resignation letter, and about various other things. The respondent’s representative responded to say: “It appears that your enquiries in relation to the 12 March 2017 letter are matters of evidence and I do not intend to respond to them in correspondence. I would comment that both of us have asked the other to explain why there are two versions of the 12 March 2017 document. Both of us were acting in accordance with our instructions at that time. You are, however, of course, well aware how the anomaly has arisen in relation to the 11 February 2019 letter. This is seemingly because you disclosed the wrong document in preparation for the substantive preliminary hearing. You and I then both failed to pick up on this. I did not send you the correct, signed, version, because I understood that the correct version was already in the bundle i.e. the version you disclosed to DWF on 3 December 2019.”

[56]In our judgement the respondent’s conduct of the disclosure exercise in the course of the proceedings did amount to unreasonable conduct of the litigation. There was a significant delay between June and October 2020 which went largely unexplained other than the reference to the pandemic in the email of 1 October 2020. If the respondent had given full disclosure at that point then it may well be that we would not have found that the conduct met the threshold of being unreasonable (when considering the gravity and effect) because there would have still been time for the claimant to properly review the disclosure without being placed under unnecessary pressure.

[57]But what, in our judgement, tips this over the edge is that the respondent’s disclosure was incomplete. This was foreshadowed (indicating to us that it is likely they knew this was the case) in the respondent’s representative’s email of 1 October 2020 which said they had asked their client to do “one final full check.” The claimant then on 17 December 2020 received at least a further 386 pages of additional documents (and potentially more as she talk about receiving 46 other documents and other new documents). On 21 December 2020 the claimant then received again a bundle with an additional 94 pages added and with the layout being re-arranged.

[58]This was some 4 weeks or so prior to the start of the final hearing. The claimant and her representatives were “dumped” with a significant amount of additional documents to review. It was disruptive and stressful and would have been made more so by the fact that the Christmas break was fast approaching where most people take leave, and there are bank holidays meaning that in reality the preparation time available for the final hearing was significantly less. We have not been given an explanation as why there was so much late disclosure. That the late disclosure did not lead to the postponement of the final hearing does not mean that it did not amount to unreasonable conduct. It caused additional work for the Claimant team and stress for the Claimant. It was exacerbated by what by itself would probably not amount to unreasonable conduct, in the respondent shifting around the structure of the hearing bundle.

[59]The delay in producing the bundle was in reality largely a knock on effect of the disclosure delays. We did take into account the claimant’s stance on explaining why some of her disputed documents were relevant was distinctly unhelpful. To proffer an explanation that the documents are referred to in the claimant’s witness statement did not help the respondent understand their relevance. Some of the documents were things like Christmas cards which would not have been self explanatory (and indeed probably not needed in any event). But the respondent did not help themselves by not asking the questions until 26 November (the day the joint bundle index was due) and in reality, as already said, the disclosure difficulties were going to hold things up anyway unless a draft bundle was produced that was then potentially subject to significant amendments.

[60]We did not consider that the respondent’s suggestion (and structure then adopted) of moving the disputed documents off to a different section was unreasonable. It is a direction the tribunal often makes when parties are in dispute to make sure that a bundle is ready for the hearing. The claimant seems to consider that it meant her documents were segregated into some section with lesser evidential value, but that is not how tribunals view bundles. We simply look at the documents we are asked to look at by the parties. Likewise, tribunals are not concerned with the labels given to documents in an index, we are concerned with the substance of the documents themselves.

[61]The pressure to get the claimant’s team to agree to the bundle on the morning of 18 December 2020 was unreasonable, albeit we appreciate it was due to the respondent’s representative’s impending period of annual leave and desire to get it done before she went, if she could.

[62]In relation to the two versions of the grievance letter, in our judgement, this blew up as such a big issue because it happened so close to the hearing date because of the delays in disclosure and the preparation of the bundle. If the issue had come to light earlier in the litigation the parties would have had more time to liaise about it prior to completion of the bundle and the preparation of witness statements and it is the kind of point that is usually resolved in that way, particularly where both parties are represented.

[63]The actual construction of the two versions of the grievance letter cannot be directly before us in this costs application because the two versions were already in existence before these proceedings were commenced. It cannot therefore amount to the conduct of these proceedings. We know this because the subsequent police investigation informed the claimant that both versions had been attached to the respondent’s letter to their solicitors of 21 March 2019 which pre-dates the presentation of the ET1 claim form.

[64]What is before us is the handling of those two versions which is a separate issue to the provenance of the documents themselves. We know, as just stated, that the respondent had sent both versions to their solicitors from the outset. Mr Egan when conducting the grievance investigation had also always had the longer version of the grievance. It appears the longer version was also known about when the ET3 response form was completed as paragraph 32 of the grounds of resistance refers to the grievance, in part, alleging that the claimant had been undermined by councillors. The claimant told us at the costs hearing that the longer version had been in the bundle for the equal pay hearing. We also know from the claimant’s solicitor’s email of 14 January 2021 that both versions had been disclosed in a bundle on 1 October 2020 but that the accompanying index only referred to one of them. As Mr Bunting said, on the face of it what appears to happen by the time of the preparation of the final hearing bundle is that only the 4 page version is inserted by the respondent’s solicitors who have by then, on the face of it, become unaware of the second longer version, and have not recalled that they previously had it, which fed into their mistaken preparation for the final hearing by both them and their client. In a document heavy case it is the kind of occurrence that happens in litigation, and as already stated the parties are usually able to liaise as part of getting the case ready for hearing (even if that just involves both versions being put in the bundle). It is a document that the claimant would always have noticed was not the version she had submitted and that she would have therefore raised an issue about. It is not something therefore as a stand alone point we would find to meet the threshold of unreasonable conduct of the litigation (albeit it is unfortunate) because these kinds of document disputes do happen and can lead to errors where things are considered to be duplicates when they are in fact not. But again, as stated, it was compounded here by the delays in disclosure and bundle preparation, and therefore forms part of the unreasonable conduct of the litigation in that context. It caused the claimant team additional work and the claimant stress.

[65]The claimant also complains that the respondent insisted that the 4 page version was the correct one until 2 days before the final hearing and that the respondent was alleging that her version was false and that she was lying. We do not find that this is what the respondent was doing; it is the interpretation that the claimant has placed upon it. The respondent’s solicitors’ email of 4 January 2021 reflects their apparent misunderstanding and mis recollection at the time of having two different versions of the letter, so they are asking the claimant’s side to explain why they have a different version. In the tribunal’s judgement, it was a reasonable question (given the respondent’s solicitors misunderstanding at the time) not an accusation that the claimant was a liar. Both parties were asking the other (as they were also for the resignation letter) where the two versions had come from. The respondent’s counsel’s later email of 13 January shows that it was only more recently that the hard copy of the respondent’s file including the original correspondence of 21 March 2019 had been accessed. Again it is the kind of question that one party asks of the other in litigation when this kind of situation emerges. For the respondent, the picture was also confused because the second version of the resignation letter (which was another point of dispute at the time) had been tracked from their perspective to having originated from the claimant and the claimant’s solicitor at the time of the equal pay hearing. This latter point was not disputed by the claimant in this costs process.

[66]The claimant complains that despite the respondent accepting that the 9 page letter was the genuine one, she was still cross examined by the respondent’s counsel along the lines that the 4 page version had originated from her. The claimant says that this is totally false and could only have been an effort to mislead the tribunal. We do not find that was unreasonable conduct of the proceedings by the respondent. Both parties were questioning how the two versions of the grievance letter had come about. The parties considered it relevant. There was a basis for the respondent to question whether the claimant had produced the shorter version of the grievance letter given what had happened with the two versions of the resignation letter. The claimant had been in work at the time of her grievance letter so it was not an impossibility that she had, for example, saved an earlier shorter draft. To be clear that is not a finding that she produced the shorter version. It is simply an observation that the questioning was not the unreasonable conduct of the litigation. The claimant was herself represented by counsel at the hearing who was fully able to look after her interests.

[67]We have found there was unreasonable conduct of the proceedings by the respondent in respect of the disclosure exercise and its knock on effect on bundle preparation. We turn separately below to the question of the exercise of our discretion. We first, however, deal with some other allegations of unreasonable conduct raised by the claimant in her application. Late disclosure of the full investigation report of Mr Egan

[68]The initial delay in providing the report until 1 February 2019 cannot amount to unreasonable conduct of the proceeding as it in fact pre-dated the proceedings. Thereafter the additional elements complained about were provided on 1 October 2020. They are therefore caught by our general observations on delay made above. Internal Panel’s full investigation report

[69]The claimant complains that she was only given one version of this (and not the second) on 1 February 2019. Again any failure in that regard as at 1 February 2019 pre-dates the proceedings and cannot amount to the unreasonable conduct of the proceedings. During the course of the litigation the second version was not disclosed until 17 December 2020 as part of the hearing bundle. That delay was the unreasonable conduct of the proceedings, as dealt with more generally above. Witnesses

[70]The claimant complains that the respondent changed their witnesses at a late stage. She says that the respondent said at the case management hearing on 15 October 2020 that they would be calling Councillor John and Mr Thomas from Carmarthenshire County Council. She says that statements were not exchanged for these potential witnesses and that the respondent failed to answer a query about this. She complains that this “tactic denied the Claimant the opportunity of adducing evidence from these witnesses.” On 7 January the claimant’s solicitor emailed about various administrative matters including a question as to why Mr Thomas and Councillor John were not being called.

[71]We do not consider that this amounts to the unreasonable conduct of the proceedings. A party is always at liberty to ultimately decide not to call a witness. This would have been apparent to the claimant when statements were exchanged on 31 December 2020 and which was a directions order which had not been subject to delay. There is no property in a witness; the Claimant would always have been able to call Councillor John as her own witness if she wanted to do so (or indeed Mr Thomas). She is a solicitor herself and by this time was fully represented by experienced solicitors and counsel. She could at that point have made an application to rely late on a statement from Councillor John or apply for a witness order for him if she had wished to do so. There were no applications in this regard made to the tribunal. The respondent would not have been obliged to answer a question as to why they had not called Councillor John or Mr Thomas as that was their privileged information. We do not consider that it was a tactic that deprived the claimant the opportunity of adducing evidence from these witnesses. She knew they were not the respondent’s witnesses as of 31 December 2020. She was being advised by experienced professionals. She had the opportunity to make whatever application she so wished.

[72]The claimant also complains that the respondent’s counsel in closing submissions falsely claimed that she had said at the case management hearing that she would be calling Councillor John but had seemingly decided not to call him but nonetheless rely on his correspondence. Mr Bunting said at the time of the liability hearing he thought he had read that somewhere but he may have it wrong. As discussed at the costs hearing, the case management agenda filed by the claimant’s solicitors prior to the October hearing anticipated that the claimant would be calling Councillor John as a witness. We accept that it is likely that is where Mr Bunting got that information from and lay behind his submission. We do not consider it meets the threshold for being the unreasonable conduct of the proceedings. Minutes

[73]The claimant complains that the bundle was cluttered with minutes she had not asked for but that the respondent had, in preparing the bundle, identified they had been included at her request. To the best the tribunal could understand it there had been a request for some minutes but not all that were provided and put in the bundle. We would not find this amounts to unreasonable conduct in itself; it is the type of thing that crops up in litigation. But it was again a knock on effect of the delays in disclosure and bundle preparation because it left the claimant with so much to wade through with time pressures upon her. Staff Handbook

[74]The claimant complains that the Grounds of Resistance at paragraph 22 said: “The Claimant’s employment was subject to a number of documents including the Respondent’s Staff Handbook, which includes the Respondent’s disciplinary, grievance, stress management, sickness absence and anti-harassment and bullying policy”. She says that this was asserted right up until the start of the final hearing but during the hearing it was conceded that an Employee Handbook had never been adopted by the Respondent, nor were there any employment policies in place during the Claimant’s employment.

[75]To the tribunal’s best recollection, the evidence at the hearing was that the employee handbook and associated documents had not been adopted, but that the draft documents were there on a shelf in the office which potentially could have been referred to in their draft and unadopted format. Grounds of Resistance are filed relatively early in proceedings. It is not unusual for granular detail on a particular individual evidential point to be somewhat different by the time a case has come out of the hearing process. Otherwise, there would be no point in having case management orders and hearings and cases would be decided on the pleadings. These things happen fairly often in litigation and happen to both claimants and respondents pleadings. Litigation is not a counsel of perfection. It also has to be placed within the context of how central the point is (or is not) to the main points to be decided in the case. This was not a central plank of the case. We do not consider this example amounted to the unreasonable conduct of the proceedings. Internal Grievance conclusions

[76]The claimant complains that paragraph 35 of the Grounds of Resistance said: “The Respondent investigated the Claimant’s grievance and having considered all the evidence determined that the grievance was without merit and should not be upheld. The Claimant was provided with a copy of the investigation report.” The Claimant says that neither version of the final report concluded that her grievance was unfounded and that she was not given a copy at the time. As mentioned above, she says she had one version on 1 February 2019 and the second version on 17 December 2020.

[77]We agree that none of the versions of the internal grievance investigation concluded that the grievance was without merit and should not be upheld. It was also not correct to say the claimant received the reports at the time they were produced. The grounds of resistance were incorrect in this regard. It was a more important point than the staff handbook and we have been given no explanation why it happened. We would consider it to meet the threshold of being unreasonable, however, it is not something that, by itself, we would use our discretion to award costs for, because we have no indication at all that it actually caused the Claimant to incur a particular element of costs. By itself it would not be appropriate to result in the Claimant being awarded all her claimed costs. Omission of Claimant documents

[78]The claimant complains that some of her documents were omitted resulting in the need for a supplementary bundle to be prepared and filed.

[79]In fact, some of the documents were in the bundle but had been disconnected from the main document they were annexed to. There is never a perfect solution to that scenario as the options are to put documents in twice (which makes the bundle unnecessarily long), move the annexes and place them in the chronological bundle (which helps with the chronological understanding of the case but can leave the appendices unclear), or leave them as annexes (where they are then not in the chronological documents), or remove them and place a schedule of annexes in the bundle setting out where the attachments can now be found in the bundle. The supplemental bundle also arose out of the disputes and confusion about the differing versions of the grievance and resignation letters. Again, if there had been earlier disclosure of documents by the respondent and earlier production of the bundle the parties would have been able to sort these things out and therefore this relates back to the findings of unreasonable conduct we have already made in this regard. Outstanding disclosure

[80]The claimant complains that the respondent still had outstanding disclosure by the time of the liability hearing. That was not identified to us and no application was made about it at the liability hearing. We therefore cannot find on what is before us that there was unreasonable conduct of the proceedings based on this point. Discretion to award costs?

[81]We have found that there was unreasonable conduct on the part of the respondent in undertaking disclosure and the preparation of the bundle. The claimant is seeking the vast majority of the legal costs she incurred in this case. The amount claim does not necessarily have to be causally linked to the unreasonable conduct but that question of causation can be a relevant consideration in the broad discretion that we have.

[82]We do not exercise our discretion to award the claimant the costs that she is seeking. Our reasoning for this is similar to that set out above in relation to rule 76(1)(b). This was litigation where both parties had measures of success and measures of loss. The respondent was entitled to defend the claim and successfully defended the protected disclosure, equal pay, and breach of contract (wages complaints). The case always needed to go to hearing and preparation for that hearing would always have needed to be done. To award the claimant the full costs she is seeking would be penalising the respondent out of proportion to the unreasonable conduct in question. The claimant pursues her costs application on the basis that the respondent had an unreasonable mindset throughout the proceedings that coloured everything that they did, including as the claimant would term it, the clinical removal of pivotal documents and the manipulation of the proceedings. That no doubt reflects how the claimant views things but it simply does not reflect the findings of fact that we made in this case.

[83]We do consider it appropriate to award the claimant a sum that broadly reflects the additional work that her solicitors would have undertaken. The disclosure would always have had to be reviewed whenever it was provided, and the bundle checked with correspondence passing about it about it. A substantial element of the work done in checking disclosure, checking bundles, cross referencing bundles, and pulling together the supplementary bundle was also done personally by the claimant rather than her legal team. This is understandable as she was seeking to keep her costs down, but the rules do not allow us to make both a preparation time order and a costs order, and it is a costs order that the claimant has applied for.

[84]But there would have been additional work done by the solicitors in corresponding with the claimant, with the respondent, and with counsel and in conferring with the claimant about the situation and developments. The disputes about, for example, the two versions of the grievance letter and the resignation letter probably sucked up a fair amount of time in circumstances in which it probably would not have done if it had all come to light at an earlier time. We do not have a breakdown of the solicitors time spent activity by activity. All we have is the spreadsheet at [89] which shows the claimant incurring £322.50 fees in November 2020, £976.50 in December 2020 and £3418.50 in January 2021. But not all of that work will have been due to the unreasonable conduct in question. The run up to a hearing is a busy time in any event, and much of the work (such as reviewing disclosure etc) would have had to be done some time. We also have no evidence before us to say that the issues gave rise to additional counsel’s fees rather than being part of the brief free and refreshers charged in any event. Doing the best we can on the information available we decide to award the claimant the sum of £1000 plus VAT to reflect, very broadly, the additional solicitors costs it is likely the claimant incurred through the late disclosure and impact upon the bundle preparation and final hearing preparation. In relation to the pleading point about the internal grievance investigation, we have already said we can see no basis on which to say that by itself caused the claimant to incur costs so we make no additional award in that regard. Rule 76(2) – breach of an order or practice direction

[85]Again we have a wide reaching discretion to award costs for breach of a tribunal order. Employment Judges deal day in and day out both in hearings and in interlocutory paperwork with complaints about breaches of tribunal orders and they do not generally result in an award of costs. Much of the time, particularly where both parties are represented, they are encouraged to work together to get things back on track. It is a moot question whether the lack of compliance with the agreed case management orders of May 2020 were in fact “orders” where they had only been approved by a Judge. That point is better looked at under 76(1)(a). In relation to EJ Moore’s orders there was a lack of provision of copy documents by 5 November 2020, a draft index to be agreed by 26 November 2020 and a hearing bundle by 10 December 2020. In terms of exercising our discretion to award costs and if so in what amount, we would undertake the same analysis with the same outcome as set out above in relation to rule 76(1)(a).