Mrs K Kaur v The Blessed Peter Snow Catholic Academy Trust: 1802988/2024 and 1802989/2024

EMPLOYMENT TRIBUNALS

Case No 1802988/2024, 1802989/2024

Between

Mrs K KaurClaimant

The Blessed Peter Snow Catholic Academy TrustRespondent

Before

Employment Judge JM Wade

In person for claimant

Mr P Menham (instructed by solicitor) for respondent

Date 19 November 2025

JUDGMENT

[1]It was reasonably practicable for the claimant’s allegations of whistleblowing detriment (25 June 2021 to 6 July 2022) to have been presented on or around April 2023. They were not presented until 19 January 2024 and are therefore dismissed.

[2]I do not think a time limit of up to and including 19 January 2024 is a just and equitable period for the presentation of the claimant’s allegations of race discrimination/harassment (19 and 23 May 2022), and they are also dismissed.

[3]The respondent’s application to strike out the claimant’s unfair dismissal complaint is refused.

REASONS

Introduction

[1]Today’s hearing was for me to decide whether the claimant’s race discrimination and protected disclosure detriments were presented in time – the claimant accepted they were not, but asked me to grant a just and equitable extension. It was also arranged to consider whether to strike out or deposit her unfair dismissal claim.

[2]There were two allegations of race discrimination; 2.1. On 19 May 2022 a colleague with children in the claimant’s presence repeating twice, “there is a brown cow” in the context of ostensibly delivering phonics teaching; 2.2. On 23 May 2022 staff displaying a big image of a brown lady in the staff room, “brown bag” wording written on a lunch bag.

The Law

[3]The allegations of protected disclosure detriment run from 25 June 2021 to 6 July 2022. The allegations run over 16 pages in diary form with some multiple entries in one day with time records. There are around 16 different colleagues named as treating the claimant badly or wrongly. The last allegation is the least clear, being an implication that at or before her interview at another school, “the wrong narrative was spread against me” - we are not told by whom.

[4]Acas conciliation commenced on 13 December 2023 and ended on 12 January 2024. The first claim was presented on 19 January 2024 and a duplicate on 21 January 2024.

[5]The periods of time beyond the relevant time limits appear to be, for the allegations of race discrimination, some sixteen months, and for the protected disclosure detriment claim, fourteen months or so. I address the reasons for delay below and I heard oral evidence from the claimant about that. Relevant findings

[6]The claimant worked as a teaching assistant at the respondent school from 2019. She had worked at other schools before 2019. She says she only experienced bullying at this school. This school has around fifty or sixty staff, with two classes in each year group I am told, and I infer around three to five hundred children. The staff cohort is diverse with people of many ethnicities and backgrounds – the claimant is not the only person of colour amongst the staff. She has experienced at least two head teachers – she complains about both.

[7]The claimant says she experienced worsened bullying from around November 2021, when a teaching assistant, she alleges, lied by saying she had Covid when she did not, had gone home, and her class had then been sent home.

[8]The claimant was then herself absent (from late November 2021until February 2022) The notified reason for that absence was back pain, which the claimant says was brought on by the stress of being bullied. The claimant retained her normal pay at that time.

[9]From February 2022 until 6 July 2022 the claimant attended school and her case is she experienced further bullying (alleged as whistleblowing detriment and to the extent decsribed above, race harassment or discrimination). She attended an interview for another school on 6 July 2022 and thereafter remained absent from work with the respondent, certified unfit due to mental ill health – anxiety and depression. She was dismissed at a hearing on 14 September 2023, with a confirmatory letter received on or around 20 September 2023.

[10]Initially the claimant tried to cope with declining mental ill health with meditation and prayers, but ultimately she was prescribed anti depressant medication by her GP, with her dose increasing from 10mg to 30mg, which she takes today. For the first six months of her long absence, she did not want to leave the house. Thereafter she began to undertake therapeutic activities, gardening, cooking, yoga and exercise. I find these activities commenced from around February of 2023.

[11]The claimant had a computer at home in 2022 and at all material times. She has two adult sons (a dentist and a son in financial services on Jersey), a husband who can help her with spreadsheets and the like, another family member who is a teacher, and a supportive GP. She had various appointments made with the respondent’s outsourced occupational health clinician (August 2022, January 2023, August 2023). She exhausted all sick pay and statutory sick pay – she did not make any benefits claims either before or after her dismissal.

[12]In January 2023 the OH clinician considered the claimant too unwell to complete an assessment and referred her back to her GP and the claimant began to improve with increasing medication and other activities.

[13]In March and July and September 2023 the claimant attended Teams meetings to discuss her absence

[14]The claimant communicated with the HR advisor for the school at various points. From, at the latest June 2021, the claimant was keeping a diary of events - alleged bullying incidents - which she tells me today the family member, who is a teacher, advised her to complete.

[15]The claimant believed she should have her bullying complaints addressed by school and was in dialogue with HR in 2021 and in early 2022 about that – the response says seven members of staff were spoken to at that time by way of informal investigation.

[16]The claimant did not raise a formal grievance about her colleagues pursuant to the school’s procedure – but she emailed a complaint/chronology of incidents on 3 January 2023 to the school, and HR covering many months before her 6 July 2022 absence.

[17]The claimant was told in March 2023 that it had been left to the school to deal with her complaint. There was no formal investigation report or resolution but the claimant believed she must wait for that. HR did not tell the claimant about Tribunals or ACAS. The claimant did not know about the need for an ACAS certificate until her GP told her.

[18]The claimant was told about ACAS after she was dismissed (by her GP), and her family helped her to start that process and complete her claim. She did not have the money for lawyers. She had not researched Tribunal claims before that and her family had not done so either.

The Law

[19]Section 18 A of the Employment Tribunals Act 1996 requires that a prospective claimant must provide prescribed information to ACAS before presenting an application to the employment tribunal.

[20]There is no obligation to engage in early conciliation, merely the need to obtain formal recognition that early conciliation has been considered by the claimant Drake International Systems Limited and others v Blue Arrow Ltd

[2016] ICR 445

[21]Section 48(3) Employment Rights Act 1996 states “an employment tribunal should not consider a complaint under this section unless it is presented-(a) 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; or

(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it is not reasonably practicable for the complaint to be presented before the end of that period of three months.”

[22]Section 48(3) is subject to the extensions given by virtue of ACAS conciliation where they apply. Section 207B (3) and (4) provide: “In working out when a time limit set by a relevant provision expires, the period beginning with the day after Day A and ending with Day B is not to be counted [the stop the clock provision]; If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period;” “Reasonably practicable” means reasonably doable.

[24]Section 123(1) of the Equality Act 2010: “Proceedings on a complaint within section 120 may not be brought after the end of -(a) the period of three months starting with the date of the act to which the complaint relates, or

(b) such other period as the Employment Tribunal thinks just and equitable.”

[25]The Section 123(1) period is extended by the ACAS conciliation provisions where conciliation is commenced within the relevant time either by the “stop the clock” provisions or providing a further month from the close of conciliation, in a similar way to the provisions affecting other complaints.

[26]Equality Act time runs from the date of the alleged discriminatory act (but lack of knowledge is relevant to the grant of an extension) - see Mr GS Virdi v Commissioner of Police of the Metropolis and another

[2007] IRLR 24

EAT.

[27]The Tribunal also considers “forensic prejudice” in assessing the prejudice to each party from an extension of time - see Wells Cathedral School Ltd v Souter EA 2020 000801 JOJ.

[28]Kumari v Greater Manchester Mental Health NHS Foundation Trust

[2022] EAT 132

makes clear that the Tribunal is entitled to consider the merits of a claim in the exercise of its discretion.

[29]The Act confers the widest possible discretion on the Employment Tribunal in determining whether or not it is just and equitable to fix a different time limit Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

. That said the power of the Tribunal is a discretion, to be exercised judicially, assessing relevant factors and the weight to be given in each case. The onus is on the Claimant to persuade the Tribunal that it is just and equitable to extend time. Robertson-v-Bexley Community Centre

2003 IRLR 434

CA.

[30]If there are circumstances which would otherwise render it just and equitable to extend time, the length of extension required is not of itself, a limiting factor unless the delay would prejudice the possibility of a fair trial see Afolabi -vSouthwark LBC

2003 EWCA Civ 15

[31]In exercising discretion under the Section 123 (1)(b) case law has also established that the Tribunal must consider the length of, and reasons for, delay, and must consider the prejudice to both parties.

[32]Section 33(3) of the Limitation Act 1980 contains a helpful list of other matters which might need to be considered (in personal injury and other claims with longer time limits), but also for the Tribunal to bear in mind if relevant: the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued had cooperated with any requests for information; the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.

Conclusions

[33]Applying the law to the circumstances above: 33.1. In assessing reasonable practicability, I consider whether it is reasonable to have no knowledge that a Tribunal can determine allegations of whistleblowing detriment or discrimination – which was one of the claimant’s reason to delay. 33.2. I do not consider it is reasonable. Ordinary life is awash with education about diversity and whistleblowing and headline news items often appear on these subjects. One of the incidents the claimant describes allegedly happened after an assembly focussing on diversity. Schools are an environment where procedures on safeguarding and speaking up - whistleblowing – are typically the subject of training. 33.3. It may be that the claimant was isolated from ordinary life through her period of illness, but she was not isolated before that, when the alleged incidents were impacting her, and her family were not so isolated – her husband works in customer services and her sons in regulated environments, and another family member in teaching, all part of normal life. 33.4. The claimant’s teacher family member telling the claimant to keep a diary of incidents was for the purpose of a grievance or Tribunal claim – it was not advice given in therapy for example. 33.5. If it was reasonably doable for the claimant’s family to advise her to document all events, it was reasonably doable for them (or the claimant when well February to July 2022, or after her health began to improve from February 2023 to do some basic research on Tribunal claims and to know that a claim could be presented, and that time limits apply. 33.6. That is not the same as saying that it was doable for the claim to have been presented by the claimant within three months of 6 July 2022 – or that period plus an ACAS extension. The claimant needed to have capacity, both in the legal sense but also in the lay sense – the will and the energy to start a claim, had she understood it was doable and that time limits applied. 33.7. The claimant told me that for six months from July 2022 she really was unable to do very much and remained in the house. That is supported by the occupational health physician saying she was too unwell to take part in an assessment in January of 2023. 33.8. The claimant did then start to take part in teams meetings, and other activities, and she understood in March 2023 that there had been no progress by the employer on her January complaint. 33.9. The claimant’s position was that the respondent’s HR adviser should have told the claimant about ACAS and Tribunal claims and time limits – with the implication being that if they had done, she would have presented her claim sooner. 33.10. This is not a case where the claimant has been misled about Tribunal time limits or ACAS – the respondent not giving information does not amount to misleading, such that it was not reasonably practicable for the claimant to have understood these matters. 33.11. Contact to ACAS and submitting a claim on line are not onerous tasks, particularly when the claimant already had her diary/complaint, the like of which she had submitted to the employer. 33.12. Not having lawyers is also not a matter which renders it not reasonably practicable for the claim to have been submitted – many litigants in person do submit claims of this kind – and most are submitted within the appropriate time limits. 33.13. In all these circumstances the further period within which it was reasonably practicable to present the detriment allegations, was, at the latest, by the end of April 2023. 33.14. I have not struck out the allegation of whistleblowing dismissal. In those circumstances I should, for completeness record that it is not in dispute the claimant’s dismissal was undertaken by a panel, none of whom were colleagues of the claimant against whom the claimant makes detriment allegations. There is no arguable case of the dismissal being the last act in a series of acts with that earlier colleague treatment. 33.15. The nature of the detriment complaints is that some are comprehensible and possibly arguable – a suggestion that the claimant was labelled “a snake” by some colleagues – but many appear extraordinary and unlikely. One of those discussed today highlights the nature of them – that a colleague running an art class would bring paintings smelling of breach to dry in the room where the claimant was working because the colleague knew the claimant hated bleach, and knew of the disclosures and was acting on the ground of them. 33.16. In all these circumstances the detriment complaints are dismissed for the reasons above. 33.17. In being asked to exercise discretion in for the purposes of a Section 123(1)(b) time limit, I bear in mind my findings on reasonable practicability above. The claimant believed her colleagues were bullying her mainly because of whistleblowing. She was advised to keep a diary and she included in that a number of incidents where there was some use of the word “brown” in a school context. When asked to identify which of the long diary of incidents were alleged as race discrimination/harassment, she identified the two above. For today she narrowed it to the first one, but I proceed on the basis of both being alleged. 33.18. The claimant became very unwell in July 2022, these events were in May 2022. I discount the window of opportunity for an in time race discrimination claim in June of 2022. In light of my comments on reasonable practicability above, I consider the extension of time the claimant asks of me should take into account that I do not consider she was in a position to submit a claim until April of 2023. 33.19. In deciding whether to extend time to 19 January 2023, I do take account of the forensic prejudice and whether there could be a fair trial – for the claimant and the two colleagues involved in the race related allegations above. These events occurred after the respondent had (relying on its pleading) earlier spoken to 7 colleagues informally. There is unlikely then, any evidence taken at the time about these events, and when giving evidence for a hearing all parties memories are likely to be challenged. The claimant’s dismissal case included that the respondent failed to investigate her complaint when it could have done, in January 2023, and that should not be to its advantage when I assess matters. That is a fair point, which I weigh. 33.20. I also weigh the strain on teachers and teaching assistants of allegations of this kind and having them made substantially a long time after the incidents in question – which is not their fault, if the employer did not investigate when it could have done. 33.21. I also take account of the difficulties, evidentially, for the claimant in these allegations, which even if made out in fact, have likely “reasons why” they are not discriminatory or do not amount to harassment. The prejudice in not being permitted to advance a difficult claim is less than that of being able to advance a strong claim, recognises that appearances on the merits at an early stage can be unreliable. 33.22. In the round I do not consider justice and equity are served by an extension to permit this Equality Act claim – the length of the extension is one matter, but ultimately, balancing prejudice, I do not consider the prejudice to the claimant, recognising her main dismissal claim is proceeding, justifies a departure of the length required, from the time limit which parliament set and which most litigants, including those in person, are required to meet. 33.23. For those reasons these complaints are also dismissed. JM Wade Employment Judge JM Wade 26 November 2024 All judgments (apart from those under rule 52) and any written reasons for the judgments, are published, in full, online at https://www.gov.uk/employmenttribunal-decisions shortly after a copy has been sent to the claimants and respondents.

Introduction

[1]This is a complaint made by the claimant that she was unfairly dismissed by the respondent for having made protected disclosures and alternatively unfairly dismissed for capability reasons. The alleged protected disclosures cover the same subject matter and were made verbally on 24 June 2021 and in writing on 3 January 2023.

[2]Where there is a conflict of accounts, I shall say so. In deciding whose account I prefer. Where a conflict of accounts arises the Tribunal bears in mind the guidance given by Leggatt J (as he then was) in Gestmin SGPS (SA) v Credit Suisse (UK) Limited and Another

[2013] EWHC 3560 (Comm)

. He commented upon the effect of litigation upon the reliability of oral evidence in the process of civil litigation where a witness will often have a stake in a particular version of event. Leggatt J suggested that inferences drawn from contemporaneous documents and known or probable facts will be more reliable than oral evidence.

[3]I shall refer in these reasons from time-to-time to the claimant as ‘C’ and the respondent as ‘R’. The references in the hearing bundle will from time-to-time be indicated as [xx]. For brevity, I will now usually refer to dates by the format ‘dd/mm/yy.’ I will refer to public interest disclosures as ‘PIDs’ from time-totime. Subject to editorial corrections, these are the reasons for my judgment given to the parties on the afternoon of 19 November 2025. Factual findings

[4]The claimant started work at the St Patrick’s Catholic school at George Avenue, Huddersfield on 29/4/19 working as an educational teaching assistant. The contract confirming her start date is at page 105 of the hearing bundle. At the time her employer was the governing body of the school.

[5]C was dismissed on 14/9/23 at a final absence review meeting.

[6]She had had two significant periods of absence: between 29/11/21 and 14/2/22 and then between 6/7/22 and 14/9/23 (the latter being the date of dismissal). The claimant was not in work between 6/7/22 and 14/9/23 meaning she had been absent for an entire academic year at the date of dismissal. Her absence record is at [160].

[7]At dismissal stage, the decision-making panel was made up of Kate McGowan (retired teacher) from whom tribunal heard evidence and Dr Diarmuid Barnwell.

[8]C exercised her right of appeal. The appeal panel was made up of Antonia Dorsey (Chair of the Trust Board) from whom the tribunal heard evidence, Martin Gonzales, and Joanne Grogan.

[9]C says that she made two protected disclosures. The first of these she says was made on 24/6/21 by phone to Katrina Santoro (an employee working in Kirklees Council’s HR department). The disclosure alleged that another Educational Teaching Assistant lied about having Covid when she didn’t and her class had been sent home as a result on 11/11/20, that the head teacher at the time Harry Rowan knew of this and as a consequence the claimant was being bullied in several respects as described on pages 1 and 2 of her witness statement (in the paragraphs which I have numbered manually as paragraphs 5 to 11 on the first two pages).

[10]The second of the alleged disclosures took place on 3/1/23 and is contained within the document at pages 271 to 294. This is a letter addressed to Rebecca Holmes, the head teacher at that time. The alleged disclosure is in reference to the same matter as the verbal disclosure of 24/6/21. It features in the document is at page 271 and it reads ‘On 24 June 2021 I disclosed to Katrina (HR) about the fake Covid case of a member of staff.’

[11]Between the two disclosures, the school became part of the academy run by R (on 1/7/21) and then, Rebecca Holmes had become head on the retirement of Harry Rowan on 31/8/22.

[12]R has a whistleblowing policy introduced as a late disclosed document by R – at p550 of the bundle. This directs employees as to “how to raise your concerns.” This is to be done through the headteacher, or chair of governors if the employee feels that they can’t raise it with the head, or through their trade union or a councillor and if the employee feels unable to do any of that then through Kirklees’ answerphone or by email to ‘whistleblowing @....’ This was last updated on 29/9/2020 and so was current at the time of the events in question.

[13]Regrettably, C’s employment with R and its predecessor was not a happy experience. C raised concerns informally in 2019, 2020, and 2021. The first informal investigation - November 2019.

[14]The 2019 compliant was raised by the claimant in a letter setting out her concerns on 4/11/19 [161]. This followed a discussion between her and Mr Rowan of 24/10/19. An informal fact find was undertaken [162] to [168]. The claimant’s concerns were investigated, and the claimant was given an outcome by Mr Rowan [172]. Mr Rowan was not able to substantiate C’s complaints. The second informal investigation - June 2020.

[15]On 11/6/2020 the claimant raised allegations that she was suffering from harassment, humiliation, insulting behaviour and the victim of “shameful acts and targeting by staff” [173]. To enable R to investigate these allegations, the claimant was asked to put the details of the allegations in writing [174], but the claimant did not want to put anything formally in writing.

[16]Notwithstanding the claimant’s reluctance the respondent investigated the allegations, to the extent that it could [175-178]. The outcome of this investigation was fed back to her [179] on 8/7/20. Harry Rowan could find no evidence to substantiate the allegations. The third informal investigation – October to November 2021.

[17]The claimant raised allegations of bullying on 19/7/2021 [516 to 528] addressed to Katrina Santoro. It refers to the incident of 11/11/20, which C says was reported to Katrina by phone on 24/6/21. The letter at [516 to 528] refers to the year 5 class having been sent home but makes no reference to the teaching assistant feigning illness or this being a disclosure that qualified for protection. Many other incidents were also raised.

[18]Harry Rowan met C on 17/9/21 to discuss her concerns. He reminded her that they had previously been through similar concerns, and she had declined HR involvement [181].

[19]On 3/10/21 the claimant emailed Katrina Santoro at Kirklees HR raising further allegations of bullying [186].

[20]A further meeting took place on 7/10/21 with Harry Rowan and Katrina to discuss the emails that had been sent by the claimant. The respondent fast tracked a referral to Employee Healthcare (the respondent’s occupational health service (‘OH’)) to support her, but the claimant refused to attend an appointment [187]. The claimant alleged that Mr Rowan was aware of the bullying and had done nothing to stop it. Consequently, he took no further part in any fact-finding meetings.

[21]However, to progress the concerns Katrina Santoro agreed to continue to undertake the fact finding. To assist her to do so the claimant was asked on 20/10/21 to identify which of her concerns she prioritised and what resolution she wanted [187 and 188]. Ms Santoro had a meeting with the claimant on 2/11/21 pp 189 and 190 and then met with other members of staff to progress the investigation [191-193]. The first sickness absence

[22]The claimant went on sick leave on 26/11/21 until 14/2/22 so the third investigation not progressed during this time. The absence was due to an eye infection, back pain and sciatica (per paragraph 11 of C’s witness statement). That the claimant had these conditions is corroborated by the OH report at 535 to 537 - (R had made an OH referral [535] on 1/2/22 with which C had co-operated). The impairment in question which was identified as being the cause of absence at this time was a pre-existing back condition and sciatica. A return to work in two weeks was anticipated and which came to pass.

[23]When the claimant returned to work on 15/2/22 she stated she felt better and declined physiotherapy and a workplace assessment. This was recorded in the return to work note at [540-541]. This records a sore eye and sciatica as the cause of her absence. C said in evidence that the sciatica was down to stress caused by the situation at work, but that was not mentioned in the return to work note nor in the OH report. Accordingly, the tribunal is unable to accept C’s account that workplace stress was a causative factor of the sciatica and eye condition. The contemporaneous record is persuasive per Gestmin. The resumption of the third informal investigation

[24]A meeting was arranged to discuss the outcome of the investigation into the allegations raised by C on 19/7/21. The meeting was held on 3/3/22 [206 to 219] and the outcome was confirmed in writing on 28/3/22 – [220]. The complaints were not upheld. C was told of her right to invoke the formal grievance procedure or to provide written comments. She did not do so.

[25]On 2/3/22 (the day before the meeting of 3/3/22) C had emailed Katrina Santoro making further allegations [195]. To try and collate the allegations and provide further detail Ms Santoro created a table with the allegations with direction for the claimant to fill this out [199-205]. This was sent to C on 5/4/22 [221]. The claimant did not fill this out.

[26]Notwithstanding the rejection of her complaints, to support the claimant Harry Rowan proposed the delivery of a briefing to all staff to reaffirm what was expected of them and to reaffirm the code of conduct [218]. It was also proposed that the claimant would have a regular 1:1 meeting with her line manager and she was encouraged to raise concerns straight away rather than wait 12 months or more to raise issues. The claimant indicated she understood and could not think of anything further that would help [218].

[27]Another copy of the spreadsheet sent on 5/4/22 was sent to C on 26/6/22 after C complained about there having been no response to her email of 2/3/22 at page 195. The second sickness absence

[28]The claimant went on a second period of sick leave on 6/7/22, She was invited to attend a sickness absence review meeting on the 14/7/22 [222] to be held on 21/7/22. The outcome of this was communicated on 21/7/22 [224 and 225]. The claimant had explained that she felt she hadn’t been treated properly at work and that she felt bullied [223]. The claimant again made allegations of bullying including that objects were placed around school to match the colours she was wearing, that parents were involved in the bullying of her, and the class teacher she supported was unkind and unfair [224].

[29]It was agreed that another referral to Employee Healthcare would be made. The parties arranged to meet again on 12/9/22 to discuss C’s RTW, the meeting to be at the school [224].

[30]The referral was made. The OH report is at [231- 233]. Dr Ahmed’s OH opinion of 3/8/22 was that a return to work was unlikely in the foreseeable future unless the underlying triggers for work related stress were addressed.

[31]The claimant did not attend the formal absence review meeting arranged for 12/9/22. She was too ill to attend, and it was rearranged for 22/9/22 [235- 236].

[32]Ms Holmes sets out the various attempts that were made to engage the claimant in further absence review meetings in paragraphs 50, 51 and 52 of her witness statement. It was not until 4/11/22 that Ms Holmes was able to get hold of the claimant and engage her in the process, with the claimant agreeing to attend a further OH appointment. Further it was noted by Ms Holmes on 6/10/22 that C failed to reply to Katrina’s request for further information about her allegations [238 and 239]. I accept that C was too unwell to engage further in the process until November 2022.

[33]On 23/11/22 OH advised that the claimant remained unfit for the foreseeable future [251-253].

[34]The claimant did not attend the scheduled absence review meetings on the 5/12/22 or on 12/12/22 nor did she provide any representations in writing.

[35]On 14/12/22 a stage 1 sickness absence warning was given by Ms Holmes [264-265] that if C did not return to work by the end of January 2023, then matters may proceed to stage 2 of the respondent’s absence review procedure.

[36]On 3/1/23 C provided a list of issues of concern to Ms Holmes [271-294]. (This was not in the Excel spreadsheet from which had been requested by Katrina on 5/4/22 and by Ms Holmes on 26/6/22). At [271] – as the tribunal has mentioned already - the document of 3/1/23 refers to C telling Katrina about ‘the fake Covid case of a member of staff.’ No further details of the incident with the member of staff were provided.

[37]A further OH assessment was arranged for 25/1/23 (the referral is at [266- 270]). Dr Ahmed contacted Ms Holmes by phone on the same date [298/299] to state that he would not be providing an OH report because C was too ill and she needed to be referred to her GP – something Dr Ahmed said he would do as is recorded at 298 (being a record of a conversation with Ms Holmes) and [299] in Dr Ahmed’s email to Kirklees HR). Page [298] was not in the hearing and appeal hearing packs for the capability hearing and the appeal but is consistent with the correspondence around that time which was in the packs as to whose responsibility it was to recommend C’s GP see her and to arrange a further OH appointment. This was down to Dr Ahmed and not Ms Homes. Dr Ahmed said in the note at [298] that he would arrange to see C again.

[38]Rebecca Holmes chased Dr Ahmed on 10/2/22 [302-303] to enquire of progress with him contacting her GP. Ms Holmes emailed C to say she had not received a report following the consultation of 25/1/23 and that she had chased to ask him how best to support C. Ms Holmes did not say that Dr Ahmed had said to her that it was for her (Ms Holmes) to ring the GP and ask the GP to make an appointment with her. C replied on 27/2/23 to say she had in fact already seen her GP on 14/2/23 - [301].

[39]Dr Ahmed replied to Ms Holmes on 22/2/23 [304/305] stating that he contacted the claimant’s GP on the date of the OH assessment and the GP confirmed they would arrange a clinical assessment, but that the OH administration team had been informed C was too unwell at that time to engage with OH.

[40]It follows therefore that Dr Ahmed had contacted the GP as C had seen the GP on 14/2/23 and then OH had asked C to make another appointment but this had been declined because of C’s ill-health. Then the GP had sent a letter to C asking that she make another appointment. The GP’s letter dated 8/3/23 to this effect at page 306.

[41]In cross examination, C said it was for the employer to arrange the face-toface appointment with OH. The contemporaneous evidence is against that proposition. It is entirely consistent with Ms Holmes account that Dr Ahmed would contact the GP and that he would arrange to see C again.

[42]Ms Holmes spoke to C on 2/3/23. C said that it was too upsetting, and she was too unwell to discuss matters. In cross examination Ms Holmes said that she did not mention Dr Ahmed’s view that C needed a psychiatric assessment as she was leaving it for him to arrange matters with the GP.

[43]The claimant was invited to a formal absence review meeting on 21/3/23 which resulted in a stage 2 absence warning dated 24/3/23 [310-314]. The claimant was informed that if she did not return to work by 1/5/23 then she may be referred to a final absence reviewer.

[44]At the absence review meeting of 21/2/23 Rebecca Holmes addressed the claimant’s concerns about the alleged bullying and harassment but said that no evidence in support had been discovered. C was told that she would not be provided with a written response to the complaint of 3/1/23 as written responses to the allegations had been provided already and the complaint of 3/1/23 was repetitious. She was advised of her right to appeal, but she did not exercise that right. She consented to a further OH referral [317]. On 15/5/23, Helen Blanchard, HR manager, confirmed R’s position that there had been a proper investigation into the concerns raised by the claimant [344].

[45]Then, because the claimant did not return to work on the 1/5/23 a further referral was made to OH. Ms Holmes wrote a detailed letter to C with the chronology of events - [344- 354]. C replied to this with annotations in red at [368 to 380]. C added the reference to the discussion with Katrina Santoro of 24/6/21 at [370] with a reference to bullying and name calling but no specificity about the conduct of the classroom assistant allegedly faking Covid illness. She added a remark about the 3/1/23 written complaint (stating that she had written everything in the letter of that date). Again, there was no specificity about the classroom assistant’s conduct. Both documents were in the pack before the capability and capability appeal panels.

[46]Ms Holmes complained to OH about their service on 6/7/23 - [384/385]. OH accepted as fair Ms Holmes’ complaint, further corroborating that it was for Dr Ahmed to contact the GP and arrange to see C again. OH would not have accepted the complaint as valid otherwise.

[47]The OH assessment was rearranged for 16/8/23. The subsequent OH report was not shared with the respondent until these proceedings. C wanted to correct some factual information before agreeing to the release of the report. It was on the respondent’s portal [400] but remained undisclosed absent C’s consent to disclosure. The final absence review meeting

[48]The claimant was invited to a final absence review meeting on 14/9/23. The documentation for the panel included [271 to 294] - (with the reference to the discussion of 24/6/21 at [271]) - and [368-380] (with the references in red mentioned in paragraph 45).

[49]The minutes of the meeting are at [426-430]. Ms Holmes explained that it was for Dr Ahmed to speak to C’s GP. She took the view that it was not for her to speak to the GP or tell C what Dr Ahmed had told her about C’s health - [426 and 427]. Surprisingly, C did not accept in evidence given in cross examination that it was not for Ms Holmes to dictate to OH what they send to the GP. Ms Holmes’ position to leave matters to the medical practitioners is clearly correct. It is a matter for medical practitioners to best decide how to deal with C’s health issues. If C is unhappy about any disclosures to the GP by OH that is a matter for C to take up with OH.

[50]There was no evidence from Kate McGown that the minutes of the final absence review meeting were sent to C after the meeting. I accept that they were not. There is no evidence that they were sent to C. The claimant said that at the meeting she did raise the fact of her three informal complaints and that nothing had been done about them. However, she accepted that she did not say expressly in the meeting that the matter raised in the phone call of 24/6/21 and repeated in the email of 3/1/23 were protected disclosures or that action was being taken against her because she had made public interest disclosures or words to that effect. This was not put to Ms McGowan by C at the tribunal hearing.

[51]The complaints were taken into consideration by the panel (see the statement of Ms McGowen to this effect). Ms McGowen’s position is that the information from Rebecca Holmes was that the claimant’s concerns were investigated and were unsubstantiated. The claimant did not raise any further formal complaints, had not raised a grievance, and she did not provide the further information as had been asked for by Katrina on 5/4/22 and by Ms Holmes on 26/6/22.

[52]When she was asked by the panel if she could return to work the claimant said “no, I am not well, I have lost trust in people” [429]. She was unable to say when she could return to work. She said the OH report was in the portal so she couldn’t show it to the panel. The panel did not ask her to obtain it before they made their decision.

[53]In evidence given in cross examination, C said that R’s conduct had made her ill and that Ms Holmes should have asked Dr Ahmed to contact her GP and had that been done she could have been receiving treatment – effectively 8 months were lost. This is a difficult stance for C to maintain as the evidence is that the GP was contacted by Dr Ahmed and the claimant saw the GP in February and March 2023 without any intervention from Ms Holmes (which was not mandated anyway, this being an issue for the claimant’s medical attendants).

[54]The panel took the decision to dismiss the claimant [431]. This was on the basis that R could no longer sustain C’s sickness absence. R did so without sight of the latest OH report, which they knew existed. (It was however discussed at the hearing).

[55]As I have said, C told R the report was on the portal. C did not expressly refuse to disclose it but on the other hand, would not do so until factual alterations were made to the part of the report stating that she ‘feels’ acts were done to bully her. She wanted that to be replaced with firmer language. This request was made in an email not seen by the tribunal or R.

[56]The undisclosed report of 16/8/23 is at pages 398 and 399. Dr Ahmed opines that C’s mental state reveals paranoia and delusional thought processes, likely from undiagnosed schizophrenia. She remained unfit for work at that time which would remain be the case until she was formally diagnosed and a response to treatment can be observed. A return to work could be supported by OH if C engages with medical advice. At the final absence review meeting, C did not tell R of Dr Ahmed’s opinion regarding the undiagnosed psychiatric condition and the unfitness would continue pending the psychiatric treatment. The appeal

[57]The claimant did appeal the outcome of the final absence review panel [434 to 436]. The grounds of appeal did not include that R had failed to consider a PID issue, corroborative of the tribunal’s finding that this had not been raised. Had it been one would have expected C to say so. There was no express reference to the Covid issue or the PIDs at all in C’s letter of appeal. (This issue was not put to Kate McGowan by C in cross examination. It was left to the tribunal to ask her if C had raised the point that the dismissal; was because of the PIDs with her during the final absence review meeting which Kate denied).

[58]The same papers were before the appeal panel and Mrs Dorsey told us at the hearing on 18 November 2025 that she had also read the minutes of the final absence review meeting at pages 426 to 430.

[59]The appeal took place on the 26/10/23 [485-489]. Given that the claimant, on her own account, was not ready to return to work and that the appeal panel took the view that her concerns had been raised and investigated previously, the panel decided to uphold the decision to dismiss.

[60]The letter confirming the dismissal of the appeal is at page 430. Again, the decision was taken without sight of the medical report at [398-399]. C raised at appeal stage that if the procedure had been followed properly then she may have been fit for work sooner. C had not procured the report from the portal. Although the portal had been shut down per [405] it could have been reopened, and it was in C’s gift to obtain the report. There is no evidence of what (if any efforts) C made to obtain the report and place it before the appeal panel.

[61]Mrs Dorsey said that C did not say expressly that the dismissal was because of the PIDs. C sought to argue that she did say that, but that the comment had been missed from the minutes. C accepted she had received the minutes of the appeal hearing but had not sought to correct this omission. On the authority of Gestmin, I prefer the contemporaneous account and find that C did not put to the appeal panel that the reason for the dismissal was the PIDs. The issues in the case

[62]The case benefitted from a case management hearing which came before Employment Judge Wade on 26/11/24 [85 and 86]. The issues are: Did the claimant make the following protected disclosures? On 24/6/21 by phone to Katrina Santoro that an ETA lied about having covid when she didn’t, and her class was sent home on 11/11/20, the head teacher knew, and the claimant was being bullied (as a result of the claimant’s knowledge of the wrongdoing/snitching). 3/1/23 in writing as above. Were they qualifying disclosures? Did the claimant reasonably believe at the time she made the disclosures of information that she was doing so in the public interest and that they tended to show a legal obligation had been breached (employer’s duty) and or health and safety was being endangered? What was the principal reason for the claimant’s dismissal – was it the making. of disclosures? If the principal reason was absence/ill health/capability, did the respondent act reasonably in dismissing including addressing: On 25 January 2023 why did the head teacher not tell HR about her conversation with the EHC doctor [Dr Ahmed]? Why did the head teacher not arrange an urgent face to face appointment with EHC for the claimant? Why was there not a full psychiatric assessment arranged if it was believed to be needed urgently? Why did HR/Head teacher not consult with the claimant about those conversations? Why was the claimant’s complaint not forwarded to the Chair of Governors (and/or the panel which convened to decide whether to continue to support her absence or dismiss?) Did the respondent act unreasonably in failing to investigate the claimant’s January complaint? Did the respondent’s conduct contribute to the claimant’s ongoing ill health such that it would be inequitable for her to be dismissed?

The relevant law

[63]Section 103A Employment Rights Act 1996 (ERA) provides that: ‘An employee who is dismissed shall be regarded….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.’

[64]As C has over two years’ service, the burden of proving the principal reason for dismissal remains on the employer. The employer usually seeks to discharge this by showing that, where as in this case the dismissal is admitted, the reason for it was one of the potentially fair reasons under sections 98(1) and (2) ERA. It will therefore normally be the employee who argues that the real reason for dismissal was an automatically unfair reason. In these circumstances, the employee acquires an evidential burden to show — without having to prove — that there is an issue which warrants investigation, and which is capable of establishing the automatically unfair reason advanced. However, once the employee satisfies the tribunal that there is such an issue, the burden reverts to the employer, who must prove, on the balance of probabilities, which of the competing reasons was the principal reason for dismissal — Maund v Penwith District Council

1984 ICR 143

, CA (a case of automatically unfair dismissal for trade union reasons).

[65]The test under section 103A is whether the whistleblowing was ‘the reason, or if more than one reason the principal reason’. The ‘reason’ is that of the employer, and so the tribunal must look at what was in the minds of the decision makers (Ms McGowen and Mrs Dorsey).

[66]Royal Mail Group v Jhuti

[2019] UKSC 55

) is authority that if the real reason for dismissal is kept hidden from a decision maker in reaction to a PID, and the decision maker is kept in ignorance of that, and dismisses for a pretend reason advanced by management who seek to conceal the true reason, then the tribunal may find that the real reason is the PID and not the invented reason.

[67]Before turning to what the reason was for dismissal, the tribunal will have to determine whether the claimant made protected disclosures within the meaning of section 43B ERA. This lists the six relevant failures about which a PID may be made. Section 43B ERA provides that: ‘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, is being or is likely to be deliberately concealed.’

[68]The disclosure must be made to one of a number of categories of person as set out in sections 43C to 43H. There is no suggestion that the disclosure was to anyone but R as the employer which is the category in section 43C of the 1996 Act.

[69]Katrina is not an employee of R but of Kirklees. The question thus arises as to whether she was she an agent of R with authority to receive PIDs? The agency issue was considered in Handa v The Station Hotel

[2025] EAT 62

This case held that within the context of an employment relationship, where the complaint relates to the conduct of someone acting on behalf of an external provider such as (in this case) a HR advisor, the material issue is whether the services that they are contracted to provide relate to a significant aspect of the employment relationship, rather than some other aspect of the employer’s business or activities. Taking that approach, someone who incidentally comes into contact with employees in the course of providing a contracted service to their employer, which is itself unrelated to an employment relationship, is unlikely to be regarded as an agent for these purposes. However, a person who is retained to carry out an employmentrelated procedure, such as a grievance or disciplinary investigation, could be regarded as the employer’s agent while carrying out those functions. The issue is therefore whether Katrina was an agent of R with authority to receive a PID?

[70]In Martin v London Borough of Southwark [EA-2020-00432] it was emphasised that a tribunal should take a structured approach as follows to PID cases and the question of whether a PID was made by the worker:a. What is the disclosure of information

b. Was there a belief that disclosure is made in the public interest

c. Was that belief reasonably held

d. Did the employee believe the disclosure tended to show one of the protected matters

e. Was that belief reasonably held.

[71]In Kilraine v Wandsworth London Borough Council

[2018] ICR 1850

, CA, the Court of Appeal held that in order for a disclosure to be a qualifying disclosure within the meaning of section 43B(1) of the 1996 Act, the disclosure had to have sufficient factual content and specificity. The court stressed that the word “information” in section 43B(1) has to be read with the qualifying phrase “tends to show” – that is to say, the worker must reasonably believe that the information “tends to show” one of the relevant failures or matters has occurred, is occurring or is likely to occur. Therefore, the statement or disclosure must have sufficient factual content to be capable of tending to show one of those matters.

[72]“Information” in this context can cover statements that might be categorised also as allegations. Allegations and information are not mutually exclusive categories of communication. However, a disclosure which is general and devoid of specific factual content cannot be said to be a disclosure of information tending to show a relevant failure. An expression of opinion may also constitute a disclosure of information. What is key to the analysis is that the disclosure must convey facts as opposed to a mere assertion.

[73]Not only must the employee or worker believe that the information disclosed tends to show one or more of the relevant failures or matters and that that belief is reasonable, the worker must also show that the worker believed, at the time that they were making the disclosure, that it was in the public interest and that the belief that it was being made in the public interest was also reasonable.

[74]Even if C does not succeed is establishing a PID, she still has a claim that was unfairly dismissed. There is no issue that she was dismissed. Section 98(4) ERA 1996 provides that “…the determination of whether the dismissal is fair or unfair (having regard to the reason shown by the employer)(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

[75]The tribunal must not substitute its own opinion for that of the employer. The issue is whether the employer has acted in a manner which a reasonable employer might have acted in the circumstances. Did the respondent’s investigation and decision-making fall within the reasonable range of management response to the situation in which they found themselves?

[76]The reason for dismissal was capability which is a potentially fair reason to dismiss. The starting point to determine whether such a dismissal is fair is as set out in Spencer v Paragon Wallpapers Ltd

[1976] IRLR 373

. The key question is whether in all the circumstances the respondent can be expected to wait any longer before dismissing. The following factors will usually be present where a reasonable decision falling within the range of reasonable responses is made in a capability case: i. The respondent genuinely believed the claimant was no longer capable of performing their duties. ii. The respondent adequately consulted the claimant. iii. The respondent carried out a reasonable investigation, including finding out about the up-to-date medical position. iv. The respondent adequately considered redeployment as an alternative to dismissal v. The respondent could reasonably be expected to wait longer before dismissing the claimant; and vi. Dismissal was within the range of reasonable responses

[77]The fact that an employer may have caused or contributed to the claimant’s ill health is a relevant factor but not determinative, although an employer may be expected to make more effort to find alternative employment or be more tolerant of absence: McAdie v Royal Bank of Scotland

[2008] ICR 1087

Conclusions

[78]Was there a public interest disclosure to Katrina on 24/6/21? (This was the information disclosed in the phone call of that day).

[79]The ET accepts C’s account that C did in the telephone conversation refer to the staff member feigning Covid. This was the disclosure of information tending to show one of the relevant failures - the obligation on the staff member to fulfil her contract of employment to assist in the education of children and fulfil R’s duty of care to the children and the health and safety of the children - and that it was made in the public interest, there being an interest in the education and welfare of children and the proper resourcing of schools and deployment of resources to that end. There was the necessary specificity. C gave the specific date, identified the member of staff in question, and told Katrina what she had allegedly dine. C had a reasonable belief in both the information disclosed and the public interest element. There was no suggestion from R that C did not.

[80]I accept that C abbreviated this description of events at [271] and [520]. The email at [271] refers to this disclosure as follows: “On 24th of June 2021 I disclosed to Katrina (HR) about the fake covid case of a member of staff”. The email of 19/7/2021 [516 to 528] describes at [520] “year 5 ETA…ill with Covid- all yr5 classes sent home.”

[81]The tribunal accepts that C did tell Katrina of the issues of concern in full by phone on 24/6/21. It is against the probabilities that C would not give the full details of the incident, and that Katrina would not try to elicit as much detail as possible. C giving an abbreviated account in the emails at [271] and [520] is consistent with her believing that such would suffice, believing that she had done enough imparting the detail in the call with Katrina. There was no suggestion by R that the call had not taken place, nor any rebuttal of C’s email at [271] to the effect that no such call had taken place. The tribunal did not have the benefit of hearing from Katrina

[82]The ET does not accept that the written disclosure of 3/1/23 about the same thing is a protected disclosure. This lacks specificity and is no more than an allegation. I agree with Miss Mellor that is not information sufficient to meet the statutory definition contained in section 43B ERA. There needs to be sufficient factual content and specificity to show that one of the matters listed in section 43B(1) is engaged. Further the context of the statement is relevant to that question. The written disclosure was directed at Ms Homes and not Katrina (who already knew about it). It needed spelling out with sufficient specificity when addressed to another recipient. ‘A fake Covid case of a member of staff’ and that a member of staff was “ill with Covid” tells a new recipient of that allegation with no prior knowledge nothing about what the member of staff is alleged to have done, the relevant failure or how such engages the public interest.

[83]To make good this point, the sentence in the email of the 3/1/23 is contained within a much broader email where the claimant is providing a written response to the letter dated 20/10/21. It is one event amongst a chronology spanning more than one year over 23 pages – [271-294]. In the absence of specificity or detail in that context it does not amount to a disclosure of information. In her evidence Rebecca Holmes said that “I didn’t see that reference to ‘fake covid’ as being any more significant than anything else in that email”.

[84]I agree with Miss Mellor that Katrina Santoro was not an agent of employer for the purposes of the legislation. She is from Kirklees HR and there is no suggestion that she had actual or ostensible authority to receive PIDs. R had a PID policy, including a Kirklees email address. Katrina Santoro did receive authority to undertake the finding of fact investigation or the informal concerns but there is nothing to suggest that she had authority to receive or process public interest disclosures.

[85]The whistleblowing policy provides the method for raising a concern [550]. This is to the Headteacher, Chair of Governors, trade union or councillor or to a specific address email address: whistleblowing@kirklees.gov.uk. That is not HR, and the policy does not provide for disclosures to be made to Katrina Santoro. She was not acting as agent of R in the capacity of a recipient of PIDs by application of the principles in Handa.

[86]I find that at the time of the dismissal and the appeal hearing the respondent genuinely believed the claimant was no longer capable of performing their duties. That is what C herself told R, after a whole academic year of absence.

[87]The respondent adequately consulted the claimant. The ET has already recited the chronology of events and the warnings stages undertaken.

[88]The respondent carried out a reasonable investigation, including finding out about the up-to-date medical position. R did not have the latest report which was in C’s gift to obtain but C told them what it had said anyway- that there was no prospect of a return to work in the foreseeable future.

[89]The issue of alternatives to dismissal doesn’t arise. There was no alternative position which R (or C) could suggest as C was simply not fit to work.

[90]The tribunal is satisfied that R has discharged the burden of proof upon the issue in (i) of Paragon Wallpapers (cited in paragraph 76) and acted reasonably and within the range of reasonable responses of reasonable managerial prerogative upon the issues in (ii)-(iv). The issue therefore is whether dismissal at the time was within the range of reasonable responses (addressing issues (v) and (vi)).

[91]The question arises as to whether R acted within the range of reasonable responses by not awaiting the OH report of 16/8/25. I find that some employers would have insisted on C making efforts to obtain it. However, it was not outside the range of reasonable management responses for R to proceed on the basis of what C told them it contained. Had C said, ‘I can’t remember what was in it, but I will get it for you,’ then it would fall outside the reasonable band of responses not to wait and the latest medical advice would then be unknown. But that is not this case. I don’t suggest that C was being obstructive. The portal system doesn’t seem the most user-friendly way of going matters for employees suffering from ill-health, but C was able to inform R of its contents. She offered nothing to R about any prospect of a return to work within a reasonable time.

[92]One theme raised by C is that R’s handling of the matters the subject of the three informal complaints delayed her treatment. However, on the authority of McAdie, even if R was responsible for C’s injury (and I cannot make any finding about that) this does not preclude dismissal although the employer may be expected to wait longer and “go the extra mile.” If there was any breach of duty causative of injury to C, that does not prevent a dismissal. The employee’s remedy then lies in the civil courts for any pre-dismissal negligence. It is for this reason that the tribunal need not make findings about the multitude of issues raised by C.

[93]This contention doesn’t work on its own terms anyway as C was under the care of her GP from mid-February 2023 anyway at the behest of Dr Ahmed. On any view, it fell within the band of reasonable responses to dismiss and take the view that R could wait no longer. C had not improved her attendance after two warnings. She had been absent for over a whole school year. There was no prospect of a return to work.

[94]I now deal with the specific issues in EJ Wade’s CMO. The first of these is that on 25 January 2023 Ms Holmes did not tell HR about her conversation with the OH doctor, Dr Ahmed.

[95]It is plainly within the band of reasonable responses that Rebecca Holmes did not tell the claimant the content of the discussion between her and Dr Ahmed. This was a situation about the claimant’s medical condition which needed to be assessed by a medical practitioner. It is a not for an employer to tell an employee that they need a medical assessment, when there is a medical professional available to do that.

[96]Rebecca Holmes did chase Dr Ahmed in a reasonable time frame to ensure that he had referred the claimant (see email of 10/2/23). His response was that he had done so. There is no reason to believe that he did not (indeed the claimant confirms she was seen by her GP in February 2023). It is entirely reasonable for an employer in these circumstances to think that the claimant’s GP would have taken appropriate steps to refer the claimant to the relevant specialist practitioners.

[97]Bearing in mind the claimant was on sick leave at the time, and the claimant had been too unwell to attend absence review meetings in September and December 2022, it would have been injudicious for any employer to tell an employee they may have a serious medical condition. Ms Holmes was not medically trained. It could be injurious to the employee for the employer to do anything else in the circumstances.

[98]The next issue is why did the head teacher not arrange an urgent face-toface appointment with OH for the claimant? The answer to this is that Rebecca Holmes chased Dr Ahmed to ensure that he was arranging a faceto-face meeting and had understood that this was taking place. She also raised a complaint with the OH provider when she became aware that there had been problems in securing an appointment. Ms Holmes’ actions were entirely in the band of reasonable responses.

[99]The next question is why was there not a full psychiatric assessment arranged if it was believed to be needed urgently? As per paragraphs 96 and 97 above, this was a matter for Dr Ahmed to progress and he did so. It is not the role of a head teacher/employer to arrange a psychiatric assessment when she has been told by a practicing doctor that he will make the appropriate referral to the claimant’s general practitioner. There is also no evidence that the claimant would have recovered any quicker had that referral been made in any case (nor that in practical terms it could have been made any quicker anyway).

[100]The next issue is why did HR/Head teacher not consult with the claimant about those conversations? The evidence is that Rebecca Holmes did keep the claimant informed [301].

[101]Then, why was the claimant’s complaint not forwarded to the Chair of Governors (and/or the panel which convened to decide whether to continue to support her absence or dismiss?). I have found that the claimant’s complaints were referred to the trust and Helen Blanchard responded on two occasions concluding that the finding of fact conducted by Harry Rowan and more latterly by Katrina Santoro was adequate and nothing the claimant raised undermined that.

[102]The claimant was given every opportunity to properly set out her complaints and/or appeal at each stage of the investigations and outcomes, but she repeatedly failed to do so. The complaints and outcomes were all in the pack before the capability and appeal panels.

[103]The next question is whether the respondent acted unreasonably in failing to investigate the claimant’s January 2023 complaint? The respondent did not fail to investigate the claimant’s complaint. Each time the claimant raised concerns it was done informally. Notwithstanding the claimant’s decision to not raise a formal grievance the respondent took her complaints/concerns seriously enough to investigate each time. I have gone through the chronology of events already. C did not invoke the grievance procedure.

[104]The claimant did not raise whistleblowing in the dismissal or the appeal hearing. In context, C did mention the PID of 24/6/21 in subsequent written correspondence but only in unspecified terms, and not with the specificity with which it had been conveyed to Katrina. The onus was on C to point this out as the PID, and that she was being dismissed for raising it.

[105]The ET has found that there was no PID as the one of 24/6/21 was to Katrina (who was not an agent of R) and not to R. The PID of 3/1/23 addressed to R lacked the necessary specificity to be a PID. Likewise, there was a reference to the first alleged PID in the appeal at [485]. The claimant said, “I involved KS” [Katrina]. This is unclear and does not reference the nature of the alleged disclosure at all.

[106]Further, in the claimant’s own statement for these proceedings the claimant says at paragraph 28 the chair of trust Ms Dorsey was not aware of whistleblowing event “because the head teacher Rebecca Holmes didn’t forward my complaint to her”. This is factually incorrect as all the documents were included anyway, but C did not spell it out as she needed to, given the context of the huge litany of complaints.

[107]In any event, the claimant’s reason for dismissal is not manufactured, or manipulated. She was absent from work for more a whole academic year and there was no indication that she would return to work. That was made clear at the hearing in her own evidence when she confirmed that she would not have been able to, nor is able to return to work.

[108]There was transparency by R about C’s complaints. They were before the panels. There was nothing to suggest, as per Jhuti, that the reason for dismissal was a pretend reason. It was genuine. C accepted the reason to be genuine by reason of her ill-health. Ms Holmes did draw the panels to the history of C’s complaints.

[109]C’s complaint that she made PIDs fails. Even if she did, such were not causative of the dismissal. It is difficult to see how the decision makers (both at dismissal and appeal stages) could reasonably have been expected to know that C was alleging that she had raised PIDs and that they were the reason for the dismissal. This was not raised by C in the internal processes. There is no evidence that the issue of C’s capacity was a pretend reason to mask dismissal for raising PIDs. Ms Holmes was open about the numerous complaints raised by C. They were before the panels. The evidence is that what was in the panels’ minds was not the PIDs but C’s ill-health.

[110]The reason for the dismissal was capacity. R acted with the range of reasonable management responses in its investigation of the medical position and consultation with C and acted within that range in deciding that they could not reasonably be expected to wait any longer for C to return to work.

[111]The claimant’s own evidence at the hearing was that she was unwell and remained too unwell to return to work. There is no indication that the claimant would have been able to return, or any suggestion that the respondent should have waited a little bit longer for the claimant to get better as recovery and fitness was nowhere on the horizon or in C’s contemplation.

[112]The decision to dismiss the claimant was for the reason of capability. There is nothing to evidence a causal link to any alleged whistleblowing. The respondent followed a fair process, it attempted to get up to date medical evidence, but the claimant did not consent to that being shared. The claimant’s own information was she was not fit to return to work. The respondent acted reasonably in acting upon the information before the panels when the decisions were taken. The claims stand dismissed. Approved by

[1]There is no reasonable prospect of the judgment sent to the parties on 21 November 2025 (‘the Judgment’) being varied or revoked.

[2]The claimant’s application for reconsideration of the Judgment is dismissed, and the Judgment is confirmed.

[1]There was a five days’ hearing of this case on 23, 24, and 25 April and on 18 and 19 November 2025. On the afternoon of 19 November 2025, the Tribunal delivered the Judgment. The claimant asked for written reasons which were sent to the parties on or around 1 December 2025.

[2]On 8 December 2025 the claimant made an application for reconsideration of the Judgment. The Law

[3]By Rule 68 of the Employment Tribunal Procedure Rules 2024 the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the judgment may be confirmed, varied, or revoked.

[4]An application for reconsideration shall be presented in writing (and copied to the other parties) within 14 days of the date on which the written record of the judgment in question or written reasons (if provided separately) were sent to the parties.

[5]Accordingly, the claimant’s reconsideration application was presented within the time limit in the 2024 Rules. It appears not to have been copied to the respondent’s solicitor. The reconsideration application is therefore defective. However, the Tribunal exercises its power under Rule 6 of the 2024 Rules to waive the requirement to copy in respondent’s solicitor. The respondent’s solicitor will be sent a copy of this reconsideration judgment and of the reconsideration application.

[6]Under Rule 68, a judgment will only be reconsidered where it is necessary in the interests of justice to do so. Rule 68 allows the tribunal a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. The discretion must be exercised judicially. This means having regard not only to the interests of the party seeking the reconsideration but also the interests of the other party to the litigation and the public interest requirement that there should be finality of litigation, so far as possible.

[7]The procedure upon a reconsideration application is for the Employment Judge that heard the case to consider the application and determine if there are reasonable prospects of the judgment in question being varied or revoked. Essentially, this is a reviewing function in which the Employment Judge must consider whether there is a reasonable prospect of a reconsideration in the interests of justice. There must be some basis for reconsideration. It is insufficient for an applicant to apply simply because they disagree with the decision.

[8]If the Employment Judge considers that there is no such reasonable prospect, then the application shall be refused. Otherwise, if it cannot be said that there is no reasonable prospect of the judgment being reconsidered, then there shall be a reconsideration hearing. The Employment Judge’s role therefore upon considering an application for reconsideration in the first instance is to act as a filter to determine whether there is a reasonable prospect of the judgment being varied or revoked were the matter to be remitted for a reconsideration hearing. The claimant’s reconsideration application, discussion, and

Conclusions

[9]The claimant’s reconsideration application is in the main an attempt to reargue the unsuccessful case brought by her. The tribunal is satisfied that the decision made was correct and that there is no reasonable prospect of the Judgment being varied or revoked. The Judgment is confirmed.

[10]The claimant contends that there was a misdirection of the case at the behest of the respondent’s solicitor and that the tribunal’s focus was upon the claimant’s absence and capability as opposed to the alleged conduct of the educational teaching assistant who had lied about contracting Covid and the bullying and harassment of the claimant after she raised concerns about these matters.

[11]The tribunal focussed correctly upon the reason why the claimant was dismissed. There was no public interest disclosure detriment claim arising out of the respondent’s conduct during the claimant’s employment calling for detailed findings about what happened during the claimant’s employment. The list of issues of Employment Judge Wade of 26 November 2024 is clear as to the claims being brought which centred entirely on the dismissal.

[12]The tribunal found that Katrina Santoro was not authorised to receive public interest disclosures on behalf of the respondent. That is a decision open to the tribunal from the evidence. The tribunal went on to find in the alternative that even if she was an authorised recipient of the disclosure of 24 June 2021, then the evidence firmly pointed away from that as being the reason for the dismissal and which influenced the decision makers and the dismissal and appeal stages.

[13]The decision makers had before them all information, including the disclosure of 24 June 2021 and the alleged disclosure of 3 January 2023. The allegation of concealment is therefore difficult to understand. The claimant did not put in terms to the decision makers at the dismissal or appeal hearings that the real reason for the dismissal was that she made protected disclosures. The tribunal was entitled to find that what operated on the minds of the decision makers was not those matters (which were two of many issues raised by the claimant) but the fact of her long-term sickness absence.

[14]It is not for the head teacher to intercede in the claimant’s medical treatment. The evidence was that Dr Ahmed would contact the claimant’s GP and arrange to see her again. It was not for the head teacher on behalf of the employer to arrange medical appointments. Even if the claimant is right in her suggestion that the employer’s handling of matters led to a delay in her treatment, such does not preclude the fair dismissal of her anyway. (In any case, the claimant was seen by her GP and found herself under the care of her medical practitioners. There was no delay in her treatment anyway).

[15]Contrary to the claimant’s assertion, the tribunal did consider the question of the non-production of the medical report of 16 August 2023. It fell within the range of reasonable management responses for the respondent to proceed without it, given what the claimant was telling them about the lack of prospect of a return to work. It formed no part of the respondent’s decision making that the claimant was being obstructive in not authorising the release of the report before the factual correction was made. The real issue for the respondent was the prospect of the claimant’s return to work. That issue was addressed by her at the dismissal and appeal hearings. There was no prospect of a return to work and in the circumstances the respondent dismissed the claimant, a decision which was one falling within the range of reasonable management responses. Approved by