Ms F Mansur v The Board of Governors of Iqra Community Primary School: 1800613/2019
EMPLOYMENT TRIBUNALS
Case No 1800613/2019
Between
Ms F MansurClaimantThe Board of Governors of Iqra Community Primary SchoolRespondent
Before
Employment Judge BuckleyIn person for claimantDid not appear for respondentDate 16 September 2021
JUDGMENT
[1]The claim for unfair dismissal is DISMISSED. It is out of time and it was reasonably practicable to present it in time.[2]The claim for sex discrimination is DISMISSED. It is out of time and it is not just and equitable to hear the claim.[3]The claim for detriment on the ground of making protected disclosures SUCCEEDS. The claimant was subjected to the following detriments on the ground that she made one or more protected disclosures:a. That the claimant was asked to attend two meetings in July 2017 where it was insinuated that she was responsible for making the anonymous disclosure and where it was said to her that ‘if something happens I’m holding you responsible’.b. That in September 2017 the claimant was subjected to formal disciplinary action arising out of an incident on 27 September 2017.c. That in December 2017 the claimant received a level 2 written warning for the same incident.d. That the claimant was the subject of disciplinary proceedings commenced in February 2018 and concluding in June 2018.e. That the respondent delayed its response to her subject access request in October 2018. Case No:1800613/2019f. That Mr Parwaiz Bashir refused to reconsider the decision to dismiss by letter dated 17 December 2018.[1]The respondent shall pay the claimant the sum of £46,159 in compensation for the claim for detriment on the ground of making protected disclosures. The recoupment regulations do not apply.
REASONS
[1]The liability judgment found that the claimant had been subjected to the following detriments:a. That the claimant was asked to attend two meetings in July 2017 where it was insinuated that she was responsible for making the anonymous disclosure and where it was said to her that ‘if something happens I’m holding you responsible’.b. That in September 2017 the claimant was subjected to formal disciplinary action arising out of an incident on 27 September 2017.c. That in December 2017 the claimant received a level 2 written warning for the same incident.d. That the claimant was the subject of disciplinary proceedings commenced in February 2018 and concluding in June 2018.e. That the respondent delayed its response to her subject access request in October 2018.f. That Mr Parwaiz Bashir refused to reconsider the decision to dismiss by letter dated 17 December 2018.
The Law
[2]Section 49 of the Employment Rights Act 1996, provides:(1) Where an employment tribunal finds a complaint under section 48 well-founded, the tribunal – (a) Shall make a declaration to that effect, and (b) May make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.(2) …The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard toa. The infringement to which the complaint relates, and b. Any loss which is attributable to the act, or failure to act, which infringed the complainant’s right.(3) The loss shall be taken to includea. Any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complainant relates, andb. Loss of any benefit which he might reasonably be expected to have had but for that act or failure to act.(4) In ascertaining the loss 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…[3]In arriving at its decision about what is just and equitable, one of the things that the Tribunal has to have regard to is what loss is attributable to the act, or failure to act, complained of. The phrase "attributable to", according to the Court of Appeal in Wilsons Solicitors LLP & Ors v Roberts [2018] EWCA Civ 52 imports the common law concept of "but for" causation. The Court of Appeal held that post-termination loss can be recovered under s 49 if the ‘but for’ causation is satisfied.[4]Under s 47B(2) section 47B (protected disclosures) does not apply where the worker is an employee and the detriment in question amounts to a dismissal within the meaning of Part X. Where an employee is dismissed on the ground that he made a protected disclosure his remedy is a claim for automatically unfair dismissal under s 103A. Where the detriment (the cause of action) is not dismissal, s 47B does not have the effect of excluding the financial consequences of any subsequent dismissal, although those losses are subject to the usual rules on causation and remoteness (see para 81 of Timis v Osipov [2019] IRLR 52).[5]In Chagger v Abbey National the Court of Appeal held that a tribunal could award ‘stigma’ damages, either by taking it into account in its assessment of future loss of earnings, or where, for example, the claimant would have been dismissed fairly in any event, by making a lump sum award analogous to the lump sum awards sometimes made in personal injury cases to compensate an injured claimant for the risks of future disadvantage on the labour market: see Smith v Manchester Corporation [1974] 1 K.I.R.[6]The issues for me to decide are therefore:a. What award should be made for injury to feelings andb. What financial losses, if any, are attributable to the detriments (a) – (e)?[7]I heard evidence from the claimant and Karen Crowley, business manager, on behalf of the respondent and was referred to and read documents in two bundles of documents. Submissions[8]On behalf of the claimant Mr Finlay submits that the claimant should be awarded a significant sum for injury to feelings, clearly not in the bottom Vento band. The liability judgment found that there was a hostile animus to the claimant over a period of time and the claimant’s witness statement shows the effect of the detriments, which was such that the claimant, although stoical, ended up on anti-depressants.[9]In relation to losses he submitted that realistically the claimant was prevented from working with children by the respondent’s continuing disclosure of the stage 2 warning. He submitted that there should be an award not just for a period out of work but in addition a Chagger or Smith v Manchester award to reflect the future effect on her employability and an amount for loss of congenial employment.[10]On pecuniary losses on behalf of the respondent Mr McNerney submits as a global point that the fact that this is a detriment not a dismissal claim forestalls any pecuniary loss arising from detriment (f) and that the other detriments have not caused any pecuniary loss, because they have not caused the claimant not to have a job.[11]If this is not accepted, if there is any loss of earnings flowing from the stage 2 warning (detriment (c)), Mr McNerney submitted that there should be either a percentage discount or a complete remission to reflect the chance that an informal warning would have had the same impact.[12]Any loss of earnings should not be awarded for more than a year in any event, because at this stage it is reasonable for the claimant to look for nonteaching assistant work and it is likely with full-time hours that the claimant could find a job relatively quickly earning as much as she did with the respondent.[13]In relation to injury to feelings Mr McNerney submits that some of the detriments are historic and led to no time off work, suggesting that the claimant was not very upset. The medical evidence is virtually non-existent and the claimant was able to apply for jobs straight after her dismissal and after detriment (f). He suggests an award towards the lower end of the lower band of Vento.
Findings of fact
[14]I found both witnesses to be straightforward witnesses who were doing their best to give evidence which was accurate to the best of their recollection.[15]In addition to these findings of fact I rely on the findings of fact set out in my written reasons for the liability judgment dated 24 May 2019 including the finding that the Respondent would have given the claimant an informal warning instead of a level 2 written warning.[16]In the meetings in July 2017 the claimant felt ‘threatened’ and ‘targeted’. In September 2017, when she was subjected to formal disciplinary action the claimant suffered from excema and hair loss. She suffered from sleep deprivation. The claimant went on sick leave as a result of stress arising from the disciplinary hearings from 3 January 2018 to 4 June 2018 and was prescribed anti-depressants (mirtazapine). She felt that she had ‘sunk into depression’ and therefore could not support her daughter through her GCSEs. She states that she felt paranoid and depressed.[17]She states that the anxieties and treatment from the respondent have contributed to low self-esteem and self-doubt. She has lost confidence due to unsuccessful applications and being unemployed for almost a year. She has become subdued and refrained from socializing with friends as they are all in employment with schools and she is not. She was upset that the respondent refused to reconsider her dismissal. She began applying for jobs straight after her dismissal. She states that this was because she had to support her two daughters, but accepted that she would have been able to start work straight away.[18]The claimant was successful at interview on 11 July 2018 and was offered the position of teaching assistant at High Park School to start in September 2018. Based on the pay the claimant received for completing two full days training the claimant calculates that her monthly salary at High Park would have been £1009.70 per month. There has been no challenge to this figure and I therefore accept it. I assume that this is a net figure, which gives a weekly net wage of £233.[19]This job offer was withdrawn before the claimant started work as a result of the reference received from the respondent which states that the claimant was subject to a live written warning for making unwarranted physical contact with a child. Although the reference states that the claimant was dismissed, it does not state why she was dismissed.[20]The claimant provided an email from Reed education, an employment agency, dated 13 February 2019. That email states that the agency has made a business decision that they are not able to represent the claimant, in the light of information provided by the respondent. The email makes clear that it is not the safeguarding concerns raised by the claimant that led to the claimant’s dismissal that are the problem, but the incident for which she received the written warning: the safeguarding concerns ‘around yourself not reported by you’.[21]The claimant has also provided an email from ‘Teaching personnel’ another agency, which states ‘we are unable to continue with your registration as your references will not meet our vetting requirements’.[22]Ms Crowley gave evidence that even if the claimant had been given an informal warning, or even if she had been exonerated completely, that this would have to be disclosed to prospective employers because that is the rule in relation to safeguarding issues. When questioned by Mr Finlay, Ms Crowley accepted that once a teacher had been employed for a period of time, there is therefore quite a lot to disclose, because people may get swept up with investigations. She accepted that when a prospective employer was looking at information disclosed in relation to the claimant, there would be a ‘world of difference’ between a negative outcome or informal action in relation to a safeguarding issue and something that is stage 2 warning. She accepted that the latter would ‘jump out’.[23]On the basis of this evidence provided by Ms Crowley, the evidence of the withdrawal of the High Park job and the content of the employment agency emails I find, on the balance of probabilities that it is the Stage 2 written warning that has prevented the claimant from obtaining alternative employment as a teaching assistant. For as long as the respondent continues to inform prospective employers that the claimant is subject to a level 2 warning, I find that the claimant is effectively excluded from the teaching assistant job market. I find, on the basis of Mr Crowley’s evidence, that this would not have been the case if the safeguarding issue had been dealt with informally, even though it would still have to be disclosed. On this basis I find, on the balance of probabilities, the High Park job offer would not have been withdrawn if the claimant had been given an informal warning rather than a stage 2 warning.[24]The respondent has not, in the light of the tribunal’s liability judgment, changed the reference that it will be providing. It still states that the claimant was subject to a stage 2 written warning, without any caveat in the light of the tribunal’s findings. There is no indication from the respondent that there is any intention to change this approach. There has been no apology.[25]The claimant is therefore prevented from continuing with her chosen career as a teaching assistant. The claimant had worked in education for 5 years. She enjoyed her role as teaching assistant. She describes it as her ‘ideal profession’. It enabled her to enjoy the teaching profession without the demanding workload and to maintain quality relations with her daughters because she did not have to work outside term time. She was good at her job: the reference from the respondent rates her as good or excellent under each heading.[26]As well as the applications set out above, the claimant applied for a role at St Matthews School in May 2019 and was unsuccessful. A list of her further applications for teaching assistant or similar roles in the bundle show that she had made 11 further applications between September 2018 and June 2019. More recently she has applied for a teaching assistant post at St Williams School where she had worked previously. She has received no reply but is aware that interviews have since taken place, so it is probable that she has not been shortlisted. She has also applied for non-teaching roles. The claimant is registered with a job centre and is required to comply with their usual rules in relation to job searches and applications. The roles she has unsuccessfully applied for to date include two apprentice dental nurse roles in May 2019, a level two business administration assistant (undated) and a role at Aldi (undated). Discussion and conclusions Pecuniary losses attributable to the detriments[27]It was the claimant’s case that detriment (d) (and, by implication, detriment (c)) have caused a loss of earnings. It was not argued before me today, and the liability judgment made no findings of fact that the dismissal was caused by any of the detriments. I must therefore proceed on the basis that, but for the detriments, the claimant would still have been dismissed on 18 June 2018.[28]The claimant successfully found alternative employment which was due to commence in September 2018. I proceed on the basis that employment at a school is likely to start on the first Monday in September, which was 3 September 2018. If the claimant had not been subjected to detriment (d), that employment would not have been withdrawn. I find that the claimant suffered a weekly loss of earnings of £233 (the net weekly wage in her new employment) from 1 September 2018 and that this loss is attributable to detriment (d).[29]This is subject to the usual duty to mitigate. I find that the claimant has made reasonable attempts to mitigate so far. I therefore award her loss of earnings from 3 September 2018 to the date of the remedy hearing (45 weeks at £233) in the sum of £10,485.[30]In the light of the claimant’s continuing failure to find work as a teaching assistant despite the tribunal’s liability judgment, I find that a year after her dismissal, it is reasonable for her to accept that she will no longer find employment as a teaching assistant or similar and that she must look elsewhere. She is entitled to spend a reasonable period attempting to find similarly rewarding employment of an equivalent status, but if those attempts are unsuccessful it is reasonable to expect her to apply for more menial work in which she may have to work longer hours at a lower pay. Taking all this into account I find that it is likely that the claimant will be able to mitigate her loss of earnings by finding a job at an equivalent salary by mid-January 2020 i.e. 6 months from the date of the remedy hearing. The future loss of earnings is therefore 26 weeks at £233 = £6,058.[31]Further on the basis of my findings of fact, the claimant has been made unemployable in her chosen field by detriment (d). There is no indication that the respondent intends to alter the information that it currently provides to prospective employers i.e that the claimant was subject to a stage 2 warning for a safeguarding incident. I accept that this is likely to prevent the claimant from obtaining any job working with children. In these circumstances I find that the claimant suffers an ongoing stigma on the labour market attributable to detriment (d) and it is just and equitable, taking into account the losses attributable to detriment (d), to make an award to reflect the losses she is likely to suffer in the future by reason of her increased difficulty in finding employment in accordance with the cases of Chagger and Smith v Manchester.[32]There is no guidance on the assessment of these awards in employment cases. In coming to a figure I take account of the fact that the effect is not on the entire labour market, but it does cover a reasonably significant part of the labour market including the arena in which the claimant’s recent experience lies. I conclude that it is just and equitable to make an award of one year’s loss of earnings to compensate the claimant for the losses she is likely to suffer in the future on the open labour market. I therefore award the claimant a further 52 weeks at £233 under this heading: £12,116.[33]The total award for pecuniary loss is: 10,485 + 6,058 + 12,116 = £28,659. Injury to feelings[34]The claimant has been subjected to a series of detriments over a period of 15 months arising out of the respondent’s hostile animus to her for making public interest disclosures. There has been no apology and the respondent continues to inform prospective employers that she was subject to a stage 2 warning without qualification. One of the detriments has resulted in her never being able to work in a role that she has described as her ‘ideal career’ and I take account of this loss of congenial employment. The claimant is clearly a stoical person, but although the claimant continued to work throughout most of this period, and felt able to start work straight after her dismissal in June 2018, she took five months off work for stress and was prescribed antidepressants. The effects on her are set out in more detail in my findings in paragraph 16 and 17 above. Taking into account all these factors, and my findings of fact set out above, I find that this case falls in the middle of the middle bracket and make an award of £17,500 for injury to feelings. Total award The total award therefore amounts to £46,159.
Findings of fact
[1]The Claimant worked as a Teaching Assistant at a school run by the Respondent. On 4 February 2019, she presented a claim to the Tribunal. All aspects of the original claim were dismissed but she was granted leave to amend her claim to add allegations that she had been subjected to four detriments on the ground of a protected disclosure. The law and the issues[2]It is unlawful for an employer to subject an employee to a detriment by any act, or any deliberate failure to act, done on the ground that the employee has made a protected disclosure (Section 47B of the Employment Rights Act 1996 – the ERA). The Claimant alleged that she made a protected disclosure when she wrote anonymously to the Department for Education (DfE) on 15 June 2017 raising concerns about the inappropriate conduct of a fellow teacher, X, when taking pupils for a swimming lesson. (The letter was lengthy and raised various other concerns, but it was this aspect of the letter only that she said amounted to a protected disclosure.) She alleged, and the Respondent accepts, that this amounted to a: a qualifying disclosure under Section 43B(1)(b) ERA, as tending to show that the Respondent was failing to comply with its legal obligation to take reasonable care to protect pupils from inappropriate conduct by a teacher and a protected disclosure under Section 43F ERA, the DfE being a prescribed person under the Prescribed Persons Disclosure Order 2014 as amended.[3]An act or deliberate failure to act amounts to a “detriment” if in all the circumstances of the case a reasonable worker would or might take the view that she had thereby been disadvantaged in the circumstances in which she had thereafter to work (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337).[4]If an employee presents a complaint that the employer has subjected her to a detriment on the ground of a protected disclosure, it is for the employer to show the ground on which the act, or deliberate failure to act, was done (Section 48(2) ERA).[5]A protected disclosure must be viewed as the ground for an act or failure to act if it is a material, in the sense of more than trivial, influence on the decision (NHS Manchester v Fecitt and others [2012] ICR 372).[6]One of the detriments the Claimant alleged occurred after her employment had ended, but a person may bring a claim of detriment on the ground of a protected disclosure against her former employer if the detriment is connected to the former employment (Onyango v Adrian Berkeley t/a Berkeley Solicitors [2013] ICR D17).[7]The Tribunal therefore had to decide the following issues:a. Did the alleged acts in fact occur?b. If they did, did they amount to detriments?c. If they did, were they done on the ground of the Claimant’s protected disclosure?[8]A complaint of a detriment on the ground of a protected disclosure must be presented before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them (Section 48(3)(a) ERA). If the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented by that time, the claim can still proceed if it has been presented with a further period that the Tribunal considers reasonable (Section 48(3)(b) ERA). The time limit is extended in certain circumstances to allow for early conciliation through ACAS (Section 207B ERA).[9]The Claimant accepted that, if the earlier three detriments she alleged amounted to discrete acts that were not part of a series of similar acts including the fourth detriment, her claim had been presented out of time in relation to them and it had been reasonably practicable for her to have presented those allegations in time. The Tribunal therefore had to decide whether the earlier three detriments amounted to part of a series of similar acts with the fourth detriment.
The evidence
[10]At the Hearing, the Tribunal heard oral evidence from the Claimant. A witness statement was submitted by the parent of a child involved in the swimming allegations and the Respondent agreed that evidence. For the Respondent, the Tribunal heard oral evidence from Mrs Anwar-Bleem, the School’s Headteacher, who conducted the meetings on 13 and 17 July 2017 that were the subject of the first and second allegations; Mrs Spence, Mrs Anwar-Bleem’s Personal Assistant, who took notes of the 17 July meeting; Mr Bashir, the Chair of the School’s Governing Body, who was present at the 13 July meeting and wrote the letter that was the subject of the fourth allegation; and Mr Walgrove, Vice-Chair of the Governing Body, who chaired the disciplinary panel who issued the Level 2 warning that was the subject of the third allegation.[11]The Tribunal was also referred to various documents in an 858-page file produced for the Hearing and viewed a short piece of CCTV footage produced by the Respondent of the incident in the playground that led to the Level 2 warning.[12]On the basis of that evidence, the Tribunal made the following findings relevant to the allegations. Who knew and when that the Claimant had made the protected disclosure?[13]As the Tribunal needed to decide whether any of the detriments had been done on the ground of the protected disclosure, it considered as a preliminary issue who knew and when that it was the Claimant who had made the protected disclosure. The letter was anonymous. The DfE did not tell the Respondent who had written it, because it did not itself know. The DfE did not provide the Respondent with a copy of the letter, it just summarised the concerns raised in it so that these could be addressed by the school.[14]The Tribunal found Mr Bashir a credible witness who was entirely straightforward in his response to the questions put to him in cross-examination. The Tribunal accepted his evidence that it did not occur to him until he saw the Claimant’s later letter of 10 December 2018 that she was the author of the anonymous letter. He was a volunteer in his role as Chair of the Governing Body. He saw his task as ensuring that the allegations were investigated, not analysing who the potential authors of the anonymous letter were. He was in any event not in a position to do so, not being sufficiently familiar with the detail of the school’s staffing arrangements and organisation. Although Mr Bashir did not identify in his evidence to the Tribunal exactly why he thought the Claimant’s later letter of 10 December 2018 established that she was the author of the letter to the DfE, the letter does indicate that she was the author because it makes reference to “the top of page 2” of the anonymous letter.[15]Mrs Anwar-Bleem’s evidence was that she did not know until after the Claimant’s dismissal on 8 June 2018 that the Claimant was the author of the anonymous letter. She did not see the text of it until it was produced during the course of this claim. Her evidence was that she thought at the time she was interviewing staff about the allegations in the letter that the author of it might have been a parent, but the Tribunal accepts that she must also have suspected it could have been Ms Mansur or Ms Thomas, who were the other staff involved in taking the children swimming. The Tribunal does not accept, on the other hand, that she had formed the belief at the relevant time that it was the Claimant who had written the letter.[16]Mr Walgrove’s evidence was that the allegations were not discussed at the Governing Body’s meetings but the Tribunal accepts Mr Bashir’s evidence that it is more likely than not that they would have been raised in general terms, albeit that they were not recorded in the notes of the meetings. On the other hand, the Tribunal does accept Mr Walgrove’s evidence that he never knew that the Claimant was the source of the allegations. Like Mr Bashir, he is a volunteer. He did not have enough detailed knowledge of the allegations or the workings of the school to be able to deduce or even suspect that the Claimant was the source.[17]The first alleged detriment was that the Claimant was invited to a meeting on 13 July 2017 with Mrs Anwar-Bleem and Mr Bashir at which she was questioned indirectly about the incident with X at the swimming baths and the anonymous letter.[18]The Tribunal accepts that this happened. The Tribunal accepts also, on the basis of the evidence of Mrs Anwar-Bleem and Mr Bashir, that they did not just speak to the Claimant. They spoke to all three members of staff involved in taking pupils swimming and other staff too. Their evidence on who else was questioned did not exactly match, but the Tribunal does not think that undermines the credibility of the central point they made that they spoke to all the relevant people. It is not credible that the school would talk to only one member of staff when there was a serious safeguarding allegation to investigate.[19]Having said that, the Tribunal does not accept Mrs Anwar-Bleem’s evidence that her manuscript notes of the interviews she and Mr Bashir conducted were made on the day of those interviews. The annotation at the top of the document indicates they were made at some point later “from memory”, in 2018 or later. The Tribunal does not consider it safe to draw any inference from the fact that Mrs Spence’s notes of the meetings on 17 July 2017 make reference to the Claimant having spoken to Mr Bashir “on Thursday” (presumably a reference to 13 July) but make no reference to that in relation to the other two staff members. These were not verbatim notes and Mrs Spence had no training in note taking.[20]The Tribunal does not accept that being interviewed about the allegations could reasonably be viewed by the Claimant as putting her under a disadvantage in her employment, even though the Claimant was not told at the time that this was part of the school’s investigation into certain allegations that had been made. She had no reason to believe that she was the only person who was being interviewed and she had not been involved in any conduct that might cause her to feel awkward about being interviewed.[21]Neither Mrs Anwar-Bleem nor Mr Bashir knew at this time that Ms Mansur had made the disclosure. Even if Mrs Anwar-Bleem suspected that Ms Mansur was the source, she was not interviewed on the ground of the protected disclosure, but on the ground that the school needed to investigate an allegation that had been made by talking to all relevant staff.[22]The second alleged detriment was that the Claimant was invited to a meeting on 17 July 2017 with Mrs Anwar Bleem and Mrs Spence at which she was questioned indirectly about the incident with X at the swimming baths and the anonymous letter.[23]The Claimant says that the tone of this interview was intimidating and threatening. She says that, from the notes of the interviews with staff, it is apparent that only she had it mentioned to her that the allegation was in a letter to the DfE. She was asked why she thought someone had complained to the DfE, what they wanted to achieve and why they had not come to Mrs AnwarBleem.[24]The Tribunal finds that in fact the other interviewees were asked similar questions. In Mrs Spence’s notes of the interviews, Ms Thomas is recorded as having given as responses: “”Julie can’t think of any parents who would have complained” and “Julie can’t think of anyone who wouldn’t come to Shahnaz [Mrs Anwar-Bleem]/governors/another staff member”, indicating that she had been asked who she thought might have made the allegations to the DfE. The notes of the questions put to X and the responses indicate something similar was asked of X: “What is your theory on the allegation? Do not know why it’s been put forward.” “Who would you report any concerns to? Shahnaz”.[25]In summary, the Tribunal accepts the evidence of Mrs Anwar-Bleem, which was fully supported by Mrs Spence’s evidence, that while the questions put to the staff may not have been identical, they covered much the same ground.[26]The Claimant’s evidence was that at the meeting Mrs Anwar-Bleem said: “If something happens I’m holding you responsible”. This is not exactly what the Claimant told the Respondent Mrs Anwar-Bleem had said when it was later investigating a disciplinary allegation made against the Claimant. In that context, she said Mrs Anwar-Bleem had said: “If something comes out of this, I’m holding you responsible”. The Tribunal prefers the evidence of Mrs Anwar-Bleem, which was consistent with the answers she gave during the investigation of the disciplinary allegation against the Claimant, that what she in fact said, to all the interviewees, was that if something had happened that was a safeguarding incident and they did not report it, then they would be held responsible.[27]The Tribunal does not accept that a reasonable employee could view being provided with that information as being put at a disadvantage in employment. It was a statement of fact. It was in all the interviewees’ interests to understand that, if they had anything to disclose, they must do so immediately, or they would be held accountable for that omission.[28]In any event, the Tribunal does not accept that either the fact of the Claimant’s interview or the tone of it was on the ground of her protected disclosure. The Claimant’s interview was held, and the statements and questions were made and posed, on the ground of the Respondent’s need to investigate the allegations and to find out who had made them not least because, if they were true, a staff member should have reported them at once to the school’s management.[29]The third alleged detriment was that on 6 December 2017 the Respondent imposed a Level 2 warning on the Claimant.[30]The imposition of a disciplinary warning clearly amounts to a detriment.[31]The decision to impose the warning was made by a panel chaired by Mr Walgrove. As already recorded, the Tribunal does not accept that Mr Walgrove knew or even suspected at the relevant time that the Claimant had made the protected disclosure. There was no evidence before the Tribunal to indicate that the other two members of the panel did either.[32]Mr Walgrove’s evidence, which was consistent with the documentation, was that the reason the panel imposed the warning was that it had concluded that the Claimant had made unwarranted physical contact with a child in that she grabbed the child by the left arm and used a degree of force to move the child to a different position in the playground, causing the child harm, in breach of the school’s safeguarding policy and procedure.[33]The Tribunal accepts that there was conflicting evidence before the panel as to whether the child had sustained a visible injury. Mrs Anwar-Bleem, Miss Gilpin and the child’s parent in a written complaint on the day after the incident said that they saw a mark on his arm. But the parent appears to have said something different orally when she came into the school and the first aider did not see a mark on the child’s arm even though he examined it closely relatively soon after the incident.[34]The panel also knew, however, that the child himself said to the school and his parents that his arm was sore and the parent said that she had had to give him mild pain relief to get him to sleep. The panel also took into account that the Claimant’s account of her contact with the child had changed. She said in the investigation meeting that her hand was flat on his shoulder when she was moving him. In the disciplinary hearing itself she said she cupped her hand on his arm because he was digging his heels in and resisting. The Tribunal accepts that the panel had reasonable grounds from the CCTV footage to consider that the child was not in fact resisting and that the Claimant had in fact gripped the child by his arm. The thrust of the panel’s conclusion was that the Claimant was using an unwarranted degree of force in the way she moved the child and had hurt the child in doing so.[35]The Tribunal accepts that the panel had sufficient evidence before it supporting that conclusion to make its decision explicable, even though the Tribunal can also appreciate why, from the Claimant’s perspective, the sanction appeared disproportionate and unfair. The Tribunal does not accept that the inconsistencies in the evidence before the panel were such as to indicate that there must in reality have been some other ground for the panel’s conclusion. The Tribunal notes that the disciplinary panel’s conclusion could have led to a decision to dismiss the Claimant, but it decided to impose a lesser sanction.[36]In summary, and even bearing in mind that it is for the Respondent to show the ground on which the warning was imposed (Section 48(2) ERA), the Tribunal is satisfied that the warning was imposed because the panel believed that the Claimant was guilty of a serious disciplinary offence.[37]The fourth alleged detriment on the ground of the protected disclosure was made up of various aspects of the content of Mr Bashir’s letter dated 17 December 2018, sent in in response to a letter from the Claimant dated 10 December 2018.[38]On 19 July 2018 the School had provided a reference on the Claimant to a potential new employer that contained a reference to the Level 2 warning. The Claimant alleged that in his letter Mr Bashir refused to change the reference to remove the mention of the Level 2 warning in the light of new evidence from the child’s father about the allegations she had made about X in her protected disclosure. In her letter, the Claimant said: “The unwarranted contact should be waived as it is more than likely the injury which I allegedly inflicted could have been from the fight in which I had physically intervened, therefore caused by another child”. In reply, Mr Bashir said: “If ever a reference request is made in relation to your employment with us, the Academy will provide a factually accurate reference and fully answer all questions asked with the reference. This is our legal duty and responsibility.”[39]The Tribunal accepts that this was effectively a refusal by Mr Bashir to remove the reference to the Level 2 warning in the reference. The Tribunal accepts Mr Bashir’s evidence, however, which was clear and credible, that he adopted his position not on the ground of Claimant’s protected disclosure but on the ground that not to mention the warning when answering a question to which it was relevant would be in breach of the Respondent’s legal obligation to give accurate answers to questions posed by potential employers. The Tribunal notes that many aspects of the reference the School provided to the Claimant’s prospective new employer were in fact positive. If the senior management of the school really intended to punish the Claimant for making her protected disclosure, as she alleges, it could easily have provided a much less positive reference. Further, Mr Bashir had no authority to remove the Level 2 warning and was satisfied that the warning was properly given, having conducted the Claimant’s unsuccessful appeal against the warning himself. At that appeal, the Claimant did not allege that the alleged injury to the child could have been inflicted by another child in the fight before she intervened.[40]The Claimant alleged that Mr Bashir said in his letter that she was being vindictive. He in fact said: ”It has come to the point where your actions appear vindictive.” The Tribunal finds that he did not say this on the ground of the Claimant’s protected disclosure of 15 June 2017 but because of the content and tone of her letter of 10 December 2018 and the fact that in its conclusion she raised the possibility of “escalating the matter” if she was not satisfied with his response.[41]The Claimant alleged that Mr Bashir said in his letter that he would sue her for defamation. He in fact said: “Should you make any defamatory statement or bring the school into disrepute – the school reserves the right to instigate legal proceedings against you.” The Tribunal finds that this was not done on the ground of the Claimant’s protected disclosure on 15 June 2017 but on the ground of the tone and content of her letter of 10 December 2018, in which she was making numerous allegations of bias, unprofessionalism and unlawful conduct which Mr Bashir considered to be untrue and likely to damage the school’s reputation if repeated in the public domain.[42]The Claimant alleged that in the letter Mr Bashir told her she must not contact the School in the future. He in fact said: “we do not intend to correspond any further with you”. He was not saying that she must not contact the school; he was just saying that the school would not be replying to any correspondence she sent. The Tribunal finds that the grounds for that was the tone and content of her letter of 10 December 2018, not the protected disclosure of 15 June 2017. She was no longer an employee of the school and Mr Bashir considered that she was raising unwarranted allegations and matters that had already been investigated.[43]In summary, the Tribunal finds that none of the aspects of Mr Bashir’s letter about which the Claimant complained were included on the ground of the protected disclosure. Time limits[44]For the purpose of the issue relating to time limits, the Tribunal considered whether the first, second and third detriments were part of a series of similar acts with the fourth detriment.[45]The first two detriments were similar, in that they were meetings held to investigate allegations that had been made. The Level 2 warning was not, however, similar to those meetings or to the fourth detriment: it involved different people, different subject matter and was of an entirely different nature. The fourth detriment was dissimilar from the other three detriments. Although it involved an individual who had been involved in the first detriment, it was of an entirely different nature: it was a letter responding to points made by the Claimant after she had already left employment, not a meeting to discuss allegations made whilst she was still in employment.[46]Although this will be apparent from its earlier findings, for the avoidance of doubt the Tribunal confirms that the evidence it heard did not establish that all or any of the four detriments were part of any overarching plan by, or agreement between, the Headteacher and the Chair and Vice-Chair of Governors to retaliate against the Claimant on the ground of her protected disclosure. Summary and conclusions[47]In summary, the Tribunal finds that the first two of the alleged detriments did not amount to detriments at all. Further, none of the acts involved in the allegations were done on the ground of the Claimant’s protected disclosure: the Respondent has shown that the actions were done on other grounds. In addition, and in any event, the claim in relation to the first three detriments is dismissed as having been presented out of time.[48]For these reasons, the claim fails and is dismissed.