Dr F Carpos Young v Royal Academy Of Music: 2201614/2018

EMPLOYMENT TRIBUNALS

Case No 2201614/2018

Between

DR F CARPOS-YOUNGClaimant

ROYAL ACADEMY OF MUSICRespondent

Before

Employment Judge Oliver Segal

Date 28 February 2019

JUDGMENT

(1) The Claimant is allowed to amend her claims in so far as necessary to include claims of having suffered detriments/been dismissed by reason of having made qualifying disclosures, as set out at paras 3.1.1, 3.2- 3.4, 4 and 5 of her draft List of Issues prepared for the first PH in this matter (“the Draft Issues”).

(2) The Claimant is permitted to add by way of amendment to both her victimisation claim under the Equality Act 2010 and her claims of whistle-blowing detriments/dismissal comments she said she made during her disciplinary hearing as set out at para 1.1.2 and 3.1.2 of the Draft Issues, by way of additional protected acts and qualifying disclosures, respectively.

REASONS

The claims of whistle-blowing detriments/dismissal

Relevant Law

[1]The Claimant complained in her ET1 of March 2018 that she suffered detriments and/or was dismissed inter alia by reason of various “disclosures” she made. However, the ET1 as received by the tribunal made no express reference to a whistle-blowing claim or to “qualifying disclosures”, though it is her case that the relevant box was ticked on the online version of the form.

[2]In June the Claimant sought to amend or clarify her claims to include in the alternative claims of whistle-blowing detriments/dismissal based on the same “disclosures” she was relying on as protected acts for the purposes of her victimisation claims.

[3]Leaving aside the issue of which boxes were ticked on the online ET1 form, and applying the well-known Selkent principles, it seems to me clear that those amendments sought amount, at their highest, to a re-labelling of claims already contained in the ET1 – indeed arguably are simply the express legal characterisation of those claims already made, in particular at paras 19 and 23 of the narrative to the ET1.

[4]The Respondent argued that: 4.1. The only “disclosure” relied on in the ET1 as originally pleaded was to students and not to the Respondent and therefore could not fall within s. 43C ERA; 4.2. Pursuant to Housing Corporation v Bryant

[1999] ICR 123

, CA and Foxtons Ltd v Ruwiel

UKEAT/0056/08/DA

, it was not sufficient for the Claimant to refer to “disclosures” without more in the ET1 to warrant the amendment sought: a causative link had to be pleaded between potentially qualifying disclosures and the detriments or dismissal complained of.

[5]As to that first argument, it has merit as far as it goes. However, the amendment sought is not put solely within s. 43C; it is also put within s. 43G. I accept that on the face of it, the principal disclosures already pleaded in the ET1 do not appear to have been to the Claimant’s employer and thus would not fall within s. 43C. However, those disclosures were – at least very arguably – made within 43G(1)(d) read with 43G(2)(c)(i); namely, they were disclosures where the Claimant had previously made a disclosure of substantially the same information to her employer: either 5.1. during the application process (although I recognise there might be argument about whether 43G(2)(c)(i) should be construed narrowly so as to exclude previous disclosures made to someone who became the Claimant’s employer but was only her potential employer at the time); and/or 5.2. in anticipation of sending the material to students, when the Claimant was already employed by the Respondent.

[6]Therefore, subject to the Claimant having pleaded that she suffered the relevant detriments/dismissal as a result of disclosures that she now seeks to label in the alternative as qualifying disclosures, there is no reason not to allow her to amend her ET1 to make it clear (and it is arguable that even without amendment that is the natural interpretation of the narrative to the ET1) that she wishes to claim, in the alternative, that those disclosures were qualifying disclosures as well as protected acts.

[7]The argument based on Bryant etc. I do not find persuasive. Those two cases deal with a different issue, namely whether a claimant can amend to plead that a particular detriment was caused by a protected act or was on grounds of her sex where no such causative link was originally pleaded. That is not this case, where the causative links are clearly asserted in the ET1.

[8]I therefore allow the Claimant to re-label in the alternative those claims as whistle-blowing claims. There is no jurisdictional (time) point which arises in the circumstances; and the balance of prejudice clearly favours allowing the amendment which was sought at an early stage in the proceedings 8.1. The Respondent’s only prejudice will be (apparently) that it has prepared its witness statements (for service over 3 months later and with these potential amendments clearly a live issue following the first PH in this case) without including evidence in relation to such parts of a whistle-blowing claim as do not apply to a victimisation claim (reasonable belief of the claimant, disclosures not made for personal gain, reasonable for claimant to make disclosure); that is partly a matter for which the Respondent has caused its own difficulties and in any event there is time for it to be remedied. 8.2. The Claimant, however, will suffer potentially the very substantial prejudice if the amendments are not allowed that her victimisation claims might be dismissed whilst her whistle-blowing claims would have succeeded. The application to add a protected act/qualifying disclosure by way of amendment

[9]The Claimant seeks to add a further protected act/qualifying disclosure to those on which she first relied, namely comments she made at the disciplinary meeting which led to her dismissal.

[10]I record and agree with a preliminary submission made by the Claimant that the Respondent, in its ET3, has rather emphasised the importance of what was said by the Claimant at that meeting by asserting that the Respondent had not decided to dismiss the Claimant until after the meeting.

[11]Both counsel addressed me at length on a point which I did not find it easy to resolve: did this application to amend involve the Claimant in introducing a new “cause of action”? It was agreed that even if it did, that would not be determinative, applying Selkent principles; but the Respondent rightly submitted that the bar is higher for the Claimant (particularly as regards the applicability of time limits for bringing claims, and in relation to any lack of sufficient explanation for not having pleaded the claims originally) if the application did involve seeking to introduce new causes of action.

[12]In the end, I decide that this application does not seek to introduce new causes of action. Neither party put before any authority directly on point. The Respondent relied again on Bryant and Ruwiel, though conceded rightly that in those cases no claim of victimisation/sex discrimination had been pleaded, to which could be added any further particulars/further claim.

[13]The Claimant relied on Pruzhanskaya v International Trade & Exhibitors (JV) Ltd

UKEAT/0046/18/LA

, in which the EAT held ([42]) that adding a complaint of automatically unfair dismissal by reason of making a protected disclosure to an in-time claim of ordinary unfair dismissal did not involve bringing a new complaint/cause of action. However, as the Respondent pointed out, the burden of proving the reason for a dismissal was the employer’s in any event in that case (cf in a victimisation or whistle-blowing claim where there is no ordinary unfair dismissal claim); moreover, the reasoning of the EAT is not entirely clear in light of the earlier authorities it considers, in particular New Star Asset Management Holdings v Evershed.

[14]In the end, mindful of the Pruzhanskaya decision but not considering myself bound by it in the different circumstances of this case, I do find that the Claimant does not seek to add new causes of action where she has already brought claims of victimisation and whistle-blowing detriments/dismissal by reference to other protected acts/disclosures.

[15]If the Claimant had simply pleaded that she had suffered the particular detriments and was dismissed because of earlier protected acts/disclosures, it is obvious she would have been allowed (indeed required) to particularise those without having formally to amend or being considered to be adding new causes of action. It is difficult to justify putting the present Claimant in a worse position.

[16]If that is right, then again there is absolutely no reason not to allow the amendments sought. The potential prejudice is all one way. What was said at the disciplinary meeting is already very much in issue and detailed evidence will have to be given by both parties about that; further the reason for the alleged detriments/dismissal will also have to be the subject of detailed evidence from the Respondent. If these amendments are refused, however, and the tribunal were to find that the real reason for the detriments/dismissal was by reason of the disclosures made by the Claimant during the disciplinary hearing, then the Claimant will suffer considerable injustice in having all of her claims dismissed.

[17]If I am wrong on the “cause of action” point, I must consider the “paramount considerations … the relative injustice and hardship involved in refusing or granting an amendment” (Selkent [24]) from a partly different perspective. Now the potential new claims would be substantially out of time and in respect of the whistle-blowing claim time could not be extended had the claim been brought by way of an ET1 presented in June. Also it would be more relevant to consider why these claims had not been pleaded originally (Selkent [24, 26]), although the lack of any explanation other than the oversight of a claimant or her legal representatives is not determinative: Evershed [33].

[18]Even so, I would allow the amendments sought. The balance of relative injustice would still favour the Claimant. As I say, the Respondent has put very much in issue the causative effect of what happened at the disciplinary hearing; there should be no prejudice to the Respondent in providing evidence about what was said at that meeting given that that matter is much disputed in any event; and I repeat, if these amendments are refused, and the tribunal were to find that the real reason for the detriments/dismissal was by reason of the disclosures made by the Claimant during the disciplinary hearing, then the Claimant will suffer considerable injustice in having all of her claims dismissed. Other matters

[19]The Respondent argued that paras 1.3 and 1.4 of the Draft Issues raised claims that were not in the ET1. The Claimant noted that those parts of the Draft Issues were agreed at the previous PH. In all events, the relevant facts are pleaded at para 12 of the narrative of the ET1 and Box 8.1 of the ET1 filed and served asserts a claim of “associative victimisation”. I was told that in an EAT case which I was not provided with the EAT had left open whether such a concept existed in law.

[20]In the circumstances, it seems to me that the claims ought to be permitted to proceed and be included in the finalised List of Issues, albeit I personally had difficulty in seeing how the statutory language of the victimisation provisions in the EqAct could be construed to support those claims. FURTHER DIRECTIONS

[21]The Claimant must by 4 pm 1 October 2018 clarify for the Respondent, whether by an amended ET1 or otherwise, precisely how she puts her whistle-blowing claims.

[32]The Respondent may, if so advised, amend its ET3 to respond to the Claimant’s reliance on additional protected acts/qualifying disclosures and/or to the particularised whistle-blowing claims to be provided pursuant to the direction set out in the previous paragraph, by sending such amended document to the Claimant on or before 4 pm 5 October 2018.

[33]The parties should cooperate sensibly in relation an appropriate date for exchange of witness statements and may agree, without further reference to the tribunal, an extension to the directed date up to and including the date 14 days prior to the commencement of the full merits hearing.

[34]Some students had emailed Rachel O’Brien to disagree with the “Our Response” letter. One who was present at the lecture where the notes were used said the claimant had acknowledged at the lecture that the terms were unfortunate; she thought the reaction was knee-jerk, and she (the claimant) was not be blamed for reporting facts on the orchestral culture, and “I hope they don’t attempt to vilify Francesca for this; she gives excellent lectures which are clear, well-organised and concise, and she certainly wasn’t encouraging or advocating the language in question” . Another student emailed that night saying she or he had regular orchestral experience and there was “nothing presented as fact that I don’t believe to be factual”. He or she had not attended the lecture, but reading her notes: “it really does strike me that all Fran is aiming to do is prevent decent players from developing bad reputations for inane reasons. I say let her do her job.”

[35]At some point on 2 November the claimant had asked Rachel O’Brien if she could be coopted onto the Equality and Diversity Committee.

[36]The DS “Our Response” document was picked up by Norman Lebrecht, the music critic and commentator, who posted it on his blog, “Slipped Disc”. Tim Jones was told of this too. The Dismissal

[37]On Friday 3 November the claimant met Tim Jones as asked. It was at this meeting that she was dismissed without notice. On his evidence, that was not his intention, which was only “to find grounds for an agreement to restore student confidence on her”. He was aware from Paul Riddell, the HR director, that depending on what she said, there might be grounds for a disciplinary charge, and that was why an HR adviser was present to make a note.

[38]The notes se made are shorter than would be expected of a meeting lasting over an hour, but the handwritten notes were said to have been destroyed after it was typed. This is a pity, as there is a dispute of fact on what the claimant said at this meeting, and another dispute on whether she was handed a copy of the disciplinary policy at it.

[39]The claimant believed the purpose of the meeting was to discuss the DS document that was now on Facebook and Slipped Disc. She took with her to the meeting a timeline of events she had prepared, pasting in the various emails. At the end of the text of the DS document, after the section inviting student responses on discrimination experienced, she had typed: “I believe that D - S - has on purpose taken my notes out of context to use it for his own political campaign against the Academy. In my mind this is an issue of defamation of character”. This suggests the claimant came to the meeting upset and angry that she had been misrepresented. Tim Jones did not notice this comment. He was concerned that student unrest was stopping them working.

[40]Working from the notes we do have, the meeting started with Tim Jones explaining that senior staff had spent a lot of time trying to convince the student body that something had gone wrong which wasn’t representative of the views of the Academy. The claimant agreed that something had gone wrong. Ideas had been taken out of context. She agreed it was a mistake to send it out to students who did not have the context of her seminar. Tim Jones explained that students were spending a lot of time talking about it, instead of playing (their instruments) in their lessons: “This is a serious reputational issue. Is there anything you would like to add?” In reply the claimant referred to the Facebook post about students having experienced discrimination at the Academy. She asked if this was referring to something in the past that she did not know about. Tim Jones identified that there were two things – the objectionable lecture notes, and the complaints about discrimination at the Academy, and he said: “if there are students with the belief that institutionally we are discriminatory we need to take radical action and start building student confidence”. The claimant repeated that she took equality seriously, she had asked to be co-opted onto the diversity committee, and her notes were necessary because when students went into the outside world and experienced in such terms, they would need to know how to handle it. Tim Jones said this was not an issue of academic freedom (a point the claimant raised) it was about “the consequences of it”. Some students were sensationalist, but others had read the document as meaning there was no point to being idealistic or having higher standards.

[41]Tim Jones then asked for a 10 minute break. But before they did, the claimant asked whether the student who had “started an untrue rumour” (we understand DS) could be disciplined. He said it was possible, and that a student forum on diversity would be a good idea.

[42]During the break Tim Jones asked the HR adviser if he had the power to dismiss the claimant, who was still in a probationary period. After the break he returned and explained how he saw the situation: she had academic freedom of speech to teach the Pathway as she saw it; she had then emailed the paperwork to all students which meant it became an Academy document. Some students had issues with those documents, had talked to others, and built up a head of steam. She had sent an email to reassure students that she did not have discriminatory views, but that had inflamed the situation further. Complaining students were now being directed to the complaints procedure, but “at the moment the students don’t appear to trust you”. There were two issues, one a lack of confidence as to how could she do the job with this around, the issue was not going away, and the other was bringing the Academy into disrepute with the students. He did not see how she could retrieve this. Then he said: “sending the document to all students without context and bringing the Academy into serious disrepute is gross misconduct and I will have to terminate your employment with immediate effect”. She would get a letter; she was not entitled to notice; he offered her a copy of the disciplinary policy (a disputed point), and they discussed handover.

[43]Tim Jones’s evidence was that the claimant was not dismissed for the terms used in the notes, nor did the Academy think she was discriminating, nor was she dismissed for circulating a note without authority. She was dismissed because he did not believe he could work with the claimant to restore student confidence: “I hoped for a plan… I didn’t see how we could agree a plan”. He believed students were about to boycott classes, and wanted to get them back to their studies.

[44]As we must make findings about the respondent’s reasons for dismissing, we studied the flow of discussion in the meeting with care, so as to identify the point at which Tim Jones, who had not initially contemplated dismissal as an outcome of the meeting, decided to dismiss. We noted that when he asked about the reputational issue, she switched to asking if there was any substance to the student complaints of discrimination at the Academy, and then to defending herself being quoted out of context, and academic free speech being in jeopardy. It was soon after that he asked to break, and sought advice whether he had power to dismiss, so we concluded it is these remarks which occasioned dismissal.

[45]The claimant says that omitted from this note are other things she said in the meeting about the context of the remarks to which students had taken objection, namely that both of them knew colleagues at the Academy used the objectionable terms, that Neil Heyde had said students needed thicker skins, that other Academy employees at an orchestra she had recently played in used them, that her husband had recently heard the term “gypos” on the lips of a visiting lecturer at the Academy, and that her colleague Jo Cole had talked of discrimination in the real world in a professional development lecture she had given that term as if it happened somewhere else, that most of the Academy staff were also practising musicians and themselves responsible for some of the behaviour she had been talking about. These were not mentioned in the ET1 grounds of claim, nor did the claimant object at the appeal hearing that they had been omitted from the note of 3 November meeting, though she did object to the note saying she had been offered the disciplinary policy. They first appear in the list of issues prepared for a preliminary hearing for case management on the 20 September 2018, when they were allowed by Employment Judge Segal QC to stand as an amendment of claim, by adding them as a protected act for the victimisation claim. In our finding, on the balance of probability, the claimant did not say these things at that meeting. She may have said them on other occasions. She may well have been thinking them, then or later, and come to think now that that is what she must have said. If she had said them at the dismissal meeting, we would have expected at least some of them to have been noted, even if the notes are not complete, and we would have expected the claimant to have objected much earlier to their omission, as they concerned participation by Academy staff in a discriminatory culture, and were not merely a statement that she was right to raise awareness of a discriminatory culture in the professional world outside the Academy.

[46]Later that day the HR adviser wrote to the claimant confirm the outcome of the meeting. The respondent did not suggest the documents were intended to cause deliberate offence, or that the terms used were representative of her own views, but “the perception of the students concerned and the student union are of paramount importance… Sending the documentation in question to all students, without sufficient and relevant context, has resulted in numerous student complaints and caused significant damage to the relationship between the student body and the Academy. Regretfully, this has resulted in the loss of confidence and trust between student body and you within your first months of employment”. This amounted to gross misconduct “due to a breach of trust and confidence and having brought the Academy into disrepute within your probationary period.” (The letter is not explicit there was a loss of trust and confidence of the Academy in her). She was asked not to discuss the situation with the press, and advised of the right of appeal. Public Statement

[47]While the meeting with Tim Jones was going on, the communications team was drafting internal and external statements, which were finalized after Tim Jones told them the claimant had been dismissed. The internal statement circulated later that day said: “you may be aware that a new member of staff circulated an unauthorised document and follow-up email all students earlier this week. It contained one individual’s observations on professional practice which do not represent the views of the Royal Academy of music. The contents of these communications were unacceptable and the member of staff has been dismissed from post with immediate effect”. The Tribunal notes that although the claimant was told her colleagues did not believe she held these unacceptable views herself, a reader of this document might not know that. The statement went on to say that the Academy was setting up two student-led groups to advise on equality and diversity, and: “these steps will allow us to shape professional practice within our field rather than just respond to the outdated inequalities which we know still exist”.

[48]A similar statement was made to the press. The Telegraph, whose reporter asked about the dismissal, was told: “we went through normal HR procedures which led to the dismissal of this member of staff.”

[49]It was put to the claimant in the Tribunal hearing that she had done nothing to assist students with how to handle the discriminatory culture they would meet outside the Academy. She responded she was seeking to raise awareness.

[50]The claimant did not go to the press, though she did tell Norman Lebrecht that she was the dismissed lecturer. She did appeal. Appeal against Dismissal

[51]In a long letter, drafted with the help of her trade union (UCU), the claimant set out that her communications had amounted to whistleblowing on discriminatory practices in the industry, and that the Academy condoned such behavior, and was trying to cover up for whistleblowing. She also complained about the lack of process in dismissing her, as she had been ambushed, and of a disproportionate penalty. In giving a lecture and distributing the notes she was doing what was asked of her. Her very public sacking had compromised her teaching, and was taking a toll on her health.

[52]The appeal was managed by Mark Racz, who, like Tim Jones, is a Deputy Principal. He decided it should be a rehearing. On 16 November Paul Riddell sent him a summary of student reaction as communicated to the student union. It was only given to the claimant at the appeal hearing on 21 November, when she said she would read it later as she did not wish to muddy her head. The hearing lasted an hour and a half. The claimant was represented by a trade union official. She stated: “as a direct result of reporting these behaviours in the classical music profession and simply because students became offended, I was dismissed”. She had been sacked because of the media storm, and only 12 hours after sending Tim Jones the student document seen on Facebook. She had been unfairly blamed by the press statement, and she now had a reputation as a racist.

[53]Mark Racz made a note to investigate four things: the accuracy of the notes, and whether they had been tampered with, that she had presented the same networking notes at interview in June as she had circulated on 30th October, whether she had been expressly instructed to send the notes out to all students, and that she was not told not to apologise for sending the notes to all students.

[54]On 28 November he then interviewed Tim Jones and Neil Heyde. Tim Jones said the minutes were accurate, he had not told her to circulate the notes, she had not presented the notes at interview, and she had shown lack of judgement. Neil Heyde said she had made no mention of whistleblowing to him, and she had been told to send out a list of events, not lecture notes.

[55]That same day, 28 November, the senior management team (the Principal, and three Deputy Principals) minuted that the appeal had been decided and the dismissal not overturned. Two days later, Paul Riddell interviewed Anthony Gritton, Gwen Tietze and Gemma Davies, five minutes each, on behalf of Mark Racz. Mr Gritton that she had not presented the notes at job interview, Gwen Tietze said she been told to circulate a list but not notes, and Gemma Davies, asked simply: “can you confirm whether yourself or TJ deliberately tampered with the notes?” (but not in what respect the notes might have been tampered with), denied they had.

[56]On 6 December Mark Racz wrote telling the claimant her appeal was not successful. Her decision to circulate the notes, without an accompanying explanation that she was seeking to highlight outdated practices and inequalities experienced by orchestral musicians, demonstrated a grave error in professional judgement. As a lecturer, it was incumbent on her to consider how her communication would be interpreted and to ensure that it there was a risk of offense or misunderstanding, the proper context was applied. As a result, he shared the view that the Academy and many of its students had lost confidence in her. She was not dismissed to silence her. She was dismissed because of the ill-advised circulation of the notes had damaged the Academy’s reputation. Students had read the notes without context and that was the catalyst for the student reaction. “Regretfully this has resulted in the loss of trust and confidence of a significant proportion of the student body and has damaged the reputation of the institution; particularly due to the attention it had attracted on social media and from press. After dealing with details points he moved to the question of a lesser penalty – even if she had not been dismissed, a question would still have remained as to suitability for permanent employment. There was a concession on process, that she should be paid salary until the appeal hearing date. Royal Society of Musicians

[57]One consequence of the publicity of her summary dismissal was that the Royal Society of Musicians, a charity distributing grants to musicians in need, where the claimant was a governor, became concerned about her suitability. When her bid for reinstatement did not succeed, she was asked to resign. Ian Partridge, a trustee of the charity who is also a voice coach at the Academy, approached Tim Jones to find out the position. The emails show that Tim Jones stonewalled his enquiries.

Relevant Law

[58]Because the claimant had been employed less than 2 years, she cannot bring a claim for unfair dismissal. We comment that on these facts, many might consider that the process of dismissal was unfair, but the tribunal can only consider the claim of wrongful dismissal, meaning, should the claimant have been dismissed with notice, or whether the dismissal was an act of victimisation under the Equality Act, or whether she was dismissed because of her sex, or whether it was automatically unfair if the sole or principal reason that she had made a protected disclosure (whistleblowing).

[59]These are far more restricted claims, looking not at whether the dismissal was unfair, but at what the respondent's reason for it was. The Tribunal is required to make a careful evaluation of the respondent’s reason or reasons for dismissing her - or subjecting her to other detriment. This is in essence a finding of fact, and inferences to be drawn from facts, as a reason is a set of facts and beliefs known to the respondent - Abernethy v Mott, Hay and Anderson

1974 ICR 323

CA, and Kuzel v Roche Products Ltd

(2008) IRLR 530

, CA. The real reason may not be the label attached to it by the employer, nor the reason advanced by ether party. It is for the Tribunal to make a finding – Blackbay Ventures Ltd v Gahir

(2014) ICR 747

[60]In finding the reason, we have to decide whether any protected act (for the victimisation claim) or protected disclosure (whistleblowing claim) , or any difference in sex (for the sex discrimination claim) was the reason why the respondent acted as it did. In doing this we must be careful to avoid “but for” causation: see for example the discussion in Chief Constable of Manchester v Bailey

(2017) EWCA Civ 425

(a victimisation claim). However, it is not necessary to show that the employer acted through conscious motivation – just that, in a victimisation claim, a protected act (and in a sex discrimination claim, the difference in sex) was the reason for the dismissal – Nagarajan v London Regional Transport (1999) ITLR 574. Protected Disclosures

[61]Section 43B of the Employment Rights Act 1996 provides that for a disclosure to qualify for protection, it must disclose “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…(b) that a person.. is likely to fail to comply with any legal obligation to which he is subject”, and the claimant identifies breaches of legal obligation to avoid age-related, racial and sexual harassment and discrimination.

[62]There must be a disclosure of information, rather than a bare allegation, it need not identify the breach of obligation by name, provided it is clear from context what is meant. Breach of legal obligation means more than something being immoral or wrong- Kilraine v Wandsworth LB

(2018) IRLR 846

, Korshunova v Eiger Securities LLP

(2017) IRLR 115

. Reasonable belief is subjective (the worker must actually believe it) and objective (the belief must be reasonable). It must be believed to be in the public interest, not just in the worker’s interest, but it can be about a section of the public – Chesterton Global Ltd v Nurmohammed

(2018) ICR 731

[63]To qualify for protection, the claimant must make the disclosure to her employer; otherwise it is protected only in restricted circumstances, including those set out in section 43G (the section relevant in this case). Were the Claimant’s Disclosures Protected?

[64]The first disclosure on which claimant replies is “the views and comment of other musicians recorded in the notes circulated on 30th of October 2017”, mentioning “the boys”, “gypos”,and “superficial and ageist world”. We agree that this is a disclosure of information, and that the claimant held a reasonable (based on her research) belief that it tended to show that orchestral musicians and sometimes fixers, (“a person”) in their workplaces (where such behavior is prohibited), did or were likely to discriminate or harass in relation to protected characteristics of race, sex and age. It was made in the public interest, and expressly in the interest of the students who planned to work in professional orchestras, who are a significant section of the public, quite apart from the general public interest in the protection of those with particular characteristics from discrimination and harassment at work or in finding work.

[65]The second disclosure relied on consists of the disputed remarks made by the claimant at the meeting on 3 November. Counsel for the claimant was clear that the claimant relied on the remarks as pleaded, and did not say that they were examples and that there might be other remarks of a similar character but not the same. In our finding these remarks were not made at that meeting, and the claimant has not established that these disclosures of information was made.

[66]The disclosure must be made to the right person. By section 43C(1)(a) it is protected if made to the employer. In our finding it was not. It was made to the students, and her employer later became aware of it.

[67]Failing a disclosure to the employer, under section 43G, the worker must show the information was true, that he did not make it for the purpose of personal gain, and that he made it either in the belief that he would be subjected to detriment if he made it to his employer, or that he had previously made a disclosure of substantially the same information to his employer. Finally, it must be reasonable for him to make disclosure in all the circumstances of the case.

[68]The claimant satisfies the test of belief in its truth and no personal gain, but there was no previous disclosure to the employer. She relies on the presentation she made at interview, but in our finding, while she explained that establishing prestige, and that social interaction with fixers and other musicians, were at least as important for getting bookings as excellent playing, her interview presentation did not get near the level of detail to suggest to her interviewers that orchestral musicians and fixers tended to discriminate by reference to age, race or sex.

[69]We considered whether the presence of staff at the lecture on 12 October made that lecture a disclosure. The claimant does not identify which staff or how many. We learned that the Academy has a very large number of hourly paid staff, largely for instrumental teaching. There is no evidence that any staff at a management level were present and the presence of some staff at the lecture did not make the lecture a disclosure to the employer.

[70]It follows that the claimant has not established that she made a protected disclosure which qualifies for protection from dismissal and detriment. Victimisation

[71]Under the Equality Act 2010, workers are protected not just from discrimination and harassment because of a protected characteristic, but also from detriment if they complain of discrimination of themselves or others or assist in complaints procedures. Section 27 prohibits victimisation by A of B because –(a) B does a protected act, or

(b) A believes that B has done or may do a protected act.

[72]The acts protected that are relevant in this case are, section 27(2): (c) doing any other thing for the purposes of or in connection with this act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. 62. The Claimant relies (1.1) on the circulation of the lecture notes on 30 October, (1.2) remarks made during the dismissal meeting on 3rd of November, or (2) on the respondent believing that she had done or might do a protected act. Our finding of fact removes (1.2), leaving the circulation of lecture notes and the respondent’s belief that she had or might do a protected act. 63. We consider whether either of these is protected. The notes of 30 October do not openly complain of a discriminatory culture in orchestras. They indicate that it exists. In the explanatory email of 1 November, she says the discussion in the seminar was about inequality. The students drew that conclusion, even those who said the claimant did nothing wrong. We note Aziz v Trinity Street Taxis Ltd

(1988) ICR 534

, which held that a secret recording made in the hope of obtaining evidence to prove a suspicion of discriminatory treatment was capable of being a protected act. The question to ask is in Durrani v L.B. Ealing

UKEAT/0560/2012

, “there must be something to show it is a complaint to which at least potentially the Act applies”. In any case, she can bring herself within section 27(2)(c), in that she did “some other thing” for the purpose of or in connection with the Equality Act, namely, she drew to the students’ attention to some discriminatory terms that existed and which they might face in the music industry, so that they would be better able to deal with it. She did not explicitly, in the notes, give advice on how to handle discrimination, and on the face of it the thrust of the notes is about how to behave to get work, and the respondent argues that there must be something in the protected material to show that she did it in connection with the Act. Nevertheless, she said so in her email of 1 November, and the students read it as raising it (their criticism being, when they conceded that she might not hold these views herself) that she did not appear explicitly to denounce it). Raising consciousness of such behaviour is an important first step in challenging discrimination. Further, her use of the term “ageist” tends to show she was referring to age discrimination. We consider that it was a protected act. 64. There must be discussion of whether she was dismissed or suffered detriment because she circulated information about a discriminatory culture in orchestras, as distinct from student protest about what they thought was her attitude to discrimination. Before doing so, we consider the other protected acts. 65. On whether the respondent believed she had done or might do a protected act, having found that she did not make the comments in the 3 November meeting that she said she did, we considered whether what she did say in that meeting- asking sharply whether there was something hidden in the past she did not know about - led the respondent (here, Tim Jones) to believe that she was going to agree with the students that there was discrimination within the academy, not just in orchestras, and state there was discrimination in the academy. The fact that in the research funding discussion she had raised social and racial inequality of access may have made him think her capable of it, and he remembered her “blunt opinions”. It was put to Tim Jones in cross examination that her raising additional elements of discriminatory treatment was what led him to dismiss, and he indicated that he was not concerned with her raising of other discriminatory issues, he just wanted the students back to work first. This point was argued briefly in oral submissions, and there was no explicit reply by the respondent on this point. We concluded there was such a protected act: she wanted to talk about whether there had been discrimination as the students suggested, he was aware from past form (her comments on access) she might raise discrimination within the Academy, and so believed she might do a protected act by doing so. Again, we must consider what part this played in the decision to dismiss. 66. She then relies on two further protected acts: (3) the circulation of DS’s document on or around 2 November 2017, and/or its publication on Norman Lebrecht’s blog, which:(i) referred to the sexist and racist language in the notes and alleged that they encouraged discrimination

(ii) suggested that students had been subject to discriminatory behaviour by staff and students

(iii) or for a working group on equality and diversity(iv) asked students for information about discrimination they had suffered (4) the respondent believed that DS or Mr Lebrecht or another student or journalist had done or might do a protected act. 67. Neither of these was made by the claimant. On a plain reading of the Act she could not show she was victimised by the Respondent because of her protected act (“B does a protected act”), and she is cannot claim protection. The claimant argues that the statute should be read so as to conform with the European Directive, as the UK is obliged by the EU Treaty it has made to give effect to Directives in national law. The Equality Directive, 2000/78/EC, in the section on remedies and enforcement provides in article 11: Victimisation: “member states shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal and adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”. (emphasis added). This is broader than the UK legislation, as it does not have to be the victim’s complaint, but “a complaint within the undertaking”. 68. The Tribunal has been referred to Coleman v Attridge Law LLP

(2008) IRLR 722

(ECJ) and

(2010) IRLR 722

(EAT), in turn setting out the principles established in Ghaidan v Godin Mendoza

(2004) 2AC 557

(which is about the ECHR, rather than EU derived law but the same principles apply), and to Rowstock Ltd v Jessemey

(2014) IRLR 722

for the discussions on reading UK statute in the light of EU directives; finally Thompson v The London Bus Company Limited (ET 2300125/14, and

(2016) IRLR 9

as showing another employment tribunal considering it could be read to comply with the EU Directive in a victimisation case, and that point was not appealed to the EAT. 69. A court or tribunal must interpret domestic legislation “so far as possible…in the light of the wording and the underlying intention of the Directive” to give effect to the state’s obligations under EU law - Marleasing (1990) ECR I – 4135 (emphasis added). 70. The limits of what is possible were set out in the principles in Ghaidan: even without ambiguity in drafting, it was possible to add words or interpret legislation to conform to underlying EU law, provided it did not conflict with underlying intention of Parliament, that is, it went “with the grain of the legislation”. “If the court implies words that are consistent with the scheme of the legislation necessary to make it compatible with the Convention rights, it is simply performing the duty which Parliament has imposed on it and on others”. A court or tribunal must consider whether there is anything impossible about interpreting the statute in a way which is compatible with the underlying thrust of the legislation, and not inconsistent with the scheme of the legislation. Doing this, it may want to consider whether, when enacting the legislation, there was a deliberate policy judgement to depart from the Directive, where it could otherwise be presumed the general legislative intent was to give effect to the EU law. In that case, it must not read the statute other than as plain text meaning what it says. 71. The respondent argues that these cases are not authority for redrafting section 27 to include complaints made by others. In Coleman, the ECJ had given a preliminary ruling that the words “on grounds of disability” was not limited to disability of the worker, and there is none here. Unlike Rowstock, where there was a complicated evolution of the legislation under consideration, it cannot be considered that the draftsman has accidentally left out complaints by others. Extending the protection to the complaints of others will require an ECJ ruling. Victims of such factual matrices are protected by being able to claim direct discrimination, based on the protected characteristic featured in the act of the third person, and so it is not necessary to extend the protection of victimisation. 72. The Tribunal does not accept that the claimant is protected by bringing a discrimination claim based on the sex or race or age of another. In CHEZ v Komisia

(2016) 1 CMLR 14

, an ECJ decision, a non-Roma could succeed on indirect discrimination where the disadvantageous treatment was aimed at Roma. It is hard to see how the claimant is protected if, when disadvantaged because someone else had complained of discrimination, she has to argue she was less favourably treated because of sex, race or age, the protected characteristics raised in the complaint. The latter may be very remote and hard to argue. She does appear to lack the protection required by the Directive if her treatment was “a reaction to” a complaint within the undertaking. We are also encouraged, when considering the respondent’s suggestion that widening the floodgates cannot have been intended, that often the real issue is not whether the act is protected but whether the disadvantage was because of the protected act. If the connection between the claimant and the protected act is tenuous, as may be the case where it relates to someone else’s complaint, proving causation is likely to be the restriction on the flood.

[73]Applying the principles set out in Ghaidan and Coleman, the section is not ambiguous, but it can to be amended to conform to the Dircective, by adding: “or a complaint (etc) of C where C is within the undertaking”. It can be presumed that the Equality Act was enacted to give effect to the EU Equality Directive. The tribunal has not been directed to any material suggesting that the restriction of protection to B’s own complaint (or B being thought to be making one) was a deliberate limit on the protection and a matter of policy. On that basis, we consider (3) and (4) are capable of being protected acts.

[74]As regards DS’s document, (or fears of similar documents) we must consider what is meant by “within the undertaking”. An undertaking is defined elsewhere in EU derived legislation (TUPE) as an “organised grouping of resources”, which can include not just employees and workers, but tools, premises, contracts with customers, goodwill and so on. It seemed to us that in an institution of higher education the students are so integrated into its everyday activity, and so integral to its purpose (which is to educate them), that they are “within the undertaking”. They are, in the business model of higher education, customers who can choose where to take their fees and custom, and where the “student experience” can be measured and marketed just as “customer experience” is in retail, but they are more closely integrated than customers, and a better business analogy might be with the raw materials being processed in manufacturing. They are admitted by the institution to become part of it, they remain there for three years (for undergraduates) and at least a year for postgraduates. A complaint by a student of the institution about the institution or about its staff is, in our view, a complaint within the undertaking, and so capable of being a protected act.

[75]We must also consider the publication of the text on the blog. The blog was not within the undertaking, but the writer did not purport to do more than advertise the complaint. The fact that the student response document promoted by DS was being publicised widely, and outside, concerned the respondent, but it was not a complaint outside the undertaking, just publicity of one within the undertaking. That must be discussed when looking at causation, and why the respondent acted as it did. Gross Misconduct

[76]Before we move on to the respondent’s reasons to dismiss and their relation to protected acts, and other detriments, we consider the wrongful dismissal claim. Gross misconduct means misconduct so serious that it breaches the contract of employment in such a way as to relieve the other party to the contract of being bound by it. Most such terms are implied. A classic formulation of the implied term of confidence and trust between employer and employee was set out in Woods v PWM Car Services (Peterborough) Ltd

1981 IRLR 347

, as approved in Malik v BCCI

(1997) IRLR 468

, cases dealing with employer’s conduct, as that a party to the contract must not “without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.

[77]Dishonesty and making a secret profit fatally undermine the relationship- Neary v Dean of Westminster

(1999) IRLR 288

. So does a failure to stop a subordinate undermining an important policy with staff – Adesokan v Sainsbury’s Supermarkets Ltd

(2017) ICR 590

. In that case the employee knew or ought to have known that what was being done by the subordinate was a breach of part of its operating process, and “people got sacked for offending it and he knew that”. It was a serious dereliction of his duty.

[78]The test of whether misconduct was gross is an objective one, for the Tribunal to decide. It is not, as in unfair dismissal claims, about whether a reasonable (but mistaken) employer would consider it gross misconduct and decide to dismiss.

[79]There was nothing in the claimant’s conduct that showed disobedience: the Tribunal does not accept that she was instructed not to send the notes. She was not rebuked for sending other notes out. At worst she had misunderstood what she was supposed to do. In any case the respondent is clear she was not dismissed for disobeying any instruction, and she was not dismissed for sending out any these or any other lecture notes. She was compliant when asked to send a framing email. It was considered inadequate in the circumstances, and perhaps it was, but the discussion had been very brief, it was not defiant, it tried to do what was asked, and if the respondent feared she had not fully understood what was wrong with the “framing” of the lecture material, it would not have been difficult, in the circumstances (excitable students, new and inexperienced lecturer) to ask her to discuss the draft before it was sent out.

[80]The respondent spoke of a “serious error of judgement”, which is about whether she should have considered and anticipated that the text might cause outrage. We suspect that the use of the term “gypo”, though explicitly referred to as a term they might hear, not one she used or even endorsed, inflamed all other reaction. In our finding, when it was suggested in some student response that she had discriminated, she was quoted out of context. More than that, the student response, in our view, and in that of some students, both those who had been at the lecture and those who had not, actually misrepresented what her notes said. Then, with some partial recognition by students that she did not hold these views herself, it was suggested she should have challenged these views. It may have been an error on the claimant’s part to circulate notes to the entire student body, not just those on the course, without explanatory framing, but she did so in the understanding that the professional pathway was to be widely advertised to attract interest in the new focus on preparation for professional life after the Academy. We cannot see it as a serious error that she failed to predict a manufactured anger that she had raised the subject without indicating how it should be handled. We cannot see it as any error at all that she failed to predict that students would add to this complaint that they themselves had been victims of discrimination within the Academy. It had not come to the claimant’s attention in her student contact. There is no evidence of what the discrimination was that they complained of, so it is not shown how the claimant should have known that there was any background to be careful of. It was not reasonably foreseeable that students should complain of discrimination experienced within the Academy when complaining that the Academy seemed to condone - was not preparing them for - discriminatory attitudes in professional orchestras. Adesokan can be distinguished on the facts.

[81]As for not being able to work with her to put together a plan to calm the students, as Tim Jones said he had hoped for but perceived to be hopeless, we did not conclude that on an objective view of what she said they could not have confidence in her: he had not said to her in terms he wanted her to help him devise a plan to get the students back to work, or that he lacked confidence in her, further, he had not picked up that she was upset by the public attack on her, which might preoccupy and distract her from understanding what he wanted. He complained she talked over him and wanted to talk of other things, or about getting the student disciplined, but this was a product of those particular circumstances, not a general problem, and on past form, once she understood what was wanted she would have done what she could to assist. The respondent did not say they had lost confidence in her, they said the students (or some of them) had lost confidence in her. This was a breach in the relationship with students that the respondent could, and did, repair by setting up diversity groups and (where discrimination within the Academy was alleged) inviting students to use the complaint procedure. It was not shown to us that dismissing the claimant was a necessary step in this process. We did not conclude that the mistake she made was so serious as to fatally damage confidence and trust in her. She may have been naive; she was certainly unlucky. If dismissed at all, it should have been on notice.

[82]Some of this claim has been met by extending her pay to the appeal date, but there is a shortfall on the one month’s notice to which she was by contract entitled in the first 12 months of employment. Was Dismissal an act of Victimisation?

[83]The Equality Act, at section 136, deals with burden of proof in claims under the Act: “if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred”, unless “A shows that A did not contravene the provision”.

[84]In examining reasons in victimisation cases, we must heed the guidance already discussed on avoiding ‘but for’ causation, and also the cases that assist in victimisation and public interest disclosure cases particularly, where although the dismissal (or detriment) was closely associated with a protected act or disclosure, the employer’s reason I argued to be something else. In Martin v Devonshires

(2001) ICR 352

the reason was not that discrimination was alleged but that the claimant by reason of mental illness did not understand that the allegations were unfounded, or that she should desist from frequent repetition of them, and that was the reason for dismissing, not that she alleged discrimination. However Tribunals should be careful not to deprive claimants of protection for, say, “intemperate language or making inaccurate statements”. In Panayiotou v Chief Constable of Hampshire Police

(2014) IRLR 500

initial complaints were taken seriously, and eventually resulted in action, but the claimant kept complaining: dismissing him was not because he made disclosures, but because he continued to wage a campaign long after the respondents had noted what he said. Other cases distinguishing the reasons for dismissal or detriment from the protected act or disclosure are Aziz, where although the secret recording hoping to get evidence of discrimination was a protected act, it was held that the respondent’s objection to covert recording of fellow members of the association, not any suggestion they had discriminated, was the reason for detriment. In Bolton School v Evans

(2007) IRLR 140

, it was possible to distinguish misconduct (hacking to prove a point) from the disclosure, but “a tribunal should look with care at arguments to say the disclosure was because of acts related to the disclosure rather than because of the disclosure itself”. Tribunals have also been warned, when employers seek to distinguish how complaints are made from the making of a complaint, of the “slippery slope” of failing to recognise that people do complain in sometimes unreasonable terms – though a case need not be “exceptional” to take claimants out of the protection of statute – Woodhouse v West North West Homes (Leeds) Ltd

(2013) IRLR 773

[85]With this guidance, we turned to examine what part the various protected acts played in the respondent’s reasons to dismiss and not to overturn the decision on appeal.

[86]The first protected act is the notes as distributed to the student body. We did not think the reason for the claimant’s dismissal was this distribution, though of course if she had done it, none of this would have happened. Their first response was to ask her to “frame” the notes and explain the source of her material. Neil Heyde recognised the students’ sense of outrage was not merited (the “thicker skins” remark); it was just a question of entering a discussion. The explainer email was not all they had hoped, but at the start of 2 November, they were looking to get students to speak to those who had been at the lecture – David Gorton’s proposal. It is not clear that the respondent thought the failure to explain required disciplinary action. It may have been considered, but even at the start of the meeting on 3 November, at most what they contemplated was a possible investigation into whether disciplinary action was merited. Although damage to reputation was the reason given, it is not clear that distributing the notes, so drawing attention to discrimination in professional orchestras, was the real reason why she was dismissed. Had it been, it might have been expected she would have been told earlier that this was to be a disciplinary meeting, or even a disciplinary investigation.

[87]The game changer was the “Our Response” document (the third protected act). The meeting was set at a time when the draft had been circulated among students, they were all talking about it, and not getting any practice done, and the fact that it was on Facebook (and possibly too on “Slipped Disc”) was certainly known by the time the claimant was told on the evening of 2 November that a member of HR was to be present at the meeting, so that disciplinary action was being considered as a possible outcome, though not, in Tim Jones’s evidence, on 3 November.

[88]What was it about that document that concerned the respondent? The section dealing with the claimant’s notes concluded by denouncing them as “active encouragement of racist, sexist and exclusive behaviours”, discouraging musicians from speaking up. This was a view which mature and objective academic staff must have recognised as rant and hyperbole, deliberately or excitedly missing the claimant’s irony about what was needed to get on in an orchestra. The way to deal with this was to encourage discussion, as they did, or to add to the series a lecture on how to handle discrimination (as may anyway have been planned for the second term, judging by the claimant’s list). We could not see that this would lead to such concern about reputation as to lead to dismissal. To our mind, the real concern was the second part of that document, which moved on to speak of discrimination within the Academy. That was far more serious, a potential “Me Too” moment, where stories of sexual harassment or racially discriminatory remarks would emerge en masse, and the Academy would be overwhelmed with adverse publicity, which had only just begun. Even if every complaint that emerged was unfounded, harm would be done. Tim Jones’s work with students to encourage them to use existing complaints procedures for anything that emerged indicates that managers’ concern had changed focus. The Academy could live down lecture notes about life in the real world as a matter of education and discussion, but complaint that Academy staff discriminated was much more difficult.

[89]As already noted, the turning point in the dismissal meeting came when the claimant started questioning whether the allegations of discrimination had any foundation in past events. The respondent’s case is that this indicated the claimant did not appreciate she needed to be part of a plan to calm the students and get them back to work; it comes across as a moment of exasperation. The Tribunal view is that it was here that the claimant touched a nerve - that the Academy was being said by at least one student to have discriminated, a student who was publicly encouraging others to come forward - and she wanted to talk about that. Her dismissal was because of the student switch to talk of discrimination within the Academy, not because of the language of the lecture notes, or lack of judgment in circulating them. Without the student “Our Response” document, she would not have been dismissed, and this document was so closely associated with the dismissal, that it cannot be separated from it. It is not a case of “but for”, but reason why.

[90]The second protected act found was that the respondent believed she might do a protected act – when she started to question whether there was in fact discrimination within the Academy. Whether this was the reason why she was dismissed (if we are wrong in finding that the “Our Response” document is not in fact protected) must be viewed in the context where the students had turned the allegations towards discrimination by Academy staff – it is unlikely to have led to dismissal on its own. Nevertheless, the context is such that where, far from supporting senior management trying to calm the student body, she appeared to be joining the students in making accusations, that too was a reason why she was dismissed when that had not otherwise been intended.

[91]We comment that with more reflection, and a meeting where each side better appreciated the upset of the other, this may not have happened. But we did conclude that the claimant was dismissed because of the third protected act, and because of the second protected act made, as it was, in the context of the student allegations of discrimination. The respondent sought to argue she was being dismissed for poor judgment – that she had caused the mess – and that this should be distinguished from what she had or had not said about discrimination. We did not agree that it was about her poor judgement in circulating the notes. She was dismissed because allegations were being made that Academy staff had discriminated.

[92]An appeal is an opportunity to reconsider a decision, this time with proper discussion and time for reflection, especially where an initial decision has been made in haste and without process. Unfortunately, this appeal was not treated as an opportunity to make the decision afresh. The investigation – say, into what was normal practice in distributing notes – was scant. Some of it was token, being done after the decision to turn down the appeal had been made. It focused on particular points, rather than being a rehearing. It did not consider to what extent the students were justified in complaining about her, or whether an institution of higher education should see it as an opportunity to teach critical thinking, or to defend the expression of views contrary to received opinion. The reason for dismissal remained the view taken by Tim Jones, and was not altered by the process of appeal. Other Detriments as Victimisation

[93]It is alleged that failing to follow a disciplinary procedure (and there was one for staff still on probation) was because of a protected act. In our view this is established for the same reasons as we found dismissal an act of victimisation. The procedure was not followed (notably in failing to tell her dismissal was contemplated and might be an outcome) because dismissal was not intended, and so when dismissed without procedure, it was because of the protected acts. For the same reason, she was denied the right to be accompanied at a disciplinary meeting. Both were to her detriment because with calm and preparation on both sides, dismissal may have been avoided. We were surprised that the Telegraph was told she had been dismissed “following normal HR procedures”, when the procedures departed so much from normal process. We add to that the appeal decision. In our view the absence of any serious reconsideration means that the appeal failed for substantially the same reason as the dismissal.

[94]The public statement was detrimental because while the Academy did not think the claimant held the discriminatory views to which objection had been taken (and said so in the dismissal letter), it held out that “the contents of these communications were unacceptable”, which without further explanation would lead an uninformed reader to think she had herself espoused objectionable views. It was therefore damaging to her reputation. It was drafted by someone who perhaps did not like the claimant very much and thought her overbearing, but it was approved by managers immediately after the dismissal, and in the same context, that students were complaining of the claimant’s documents and of discrimination within the Academy in the same breath, as it were, and in our finding it was because of the second protected act.

[95]The next two detriments are about discussing the appeal with Ian Partridge and Ian Partridge telling the Royal Society of Musicians that he had done so. The respondent did not in our finding tell Ian Partridge more than he had picked up on the grapevine. If the claimant suffered detriment as a consequence of the dismissal and failure of the appeal – by being asked to resign as a governor – it is likely to have been as a consequence of the dismissal and the public statement, and something to be considered when assessing compensation for injury to feelings. It did not occur directly because of protected acts.

[96]Finally, the subject access request (SAR). The claimant made the request on 7 December 2017. She was told on 15 January (and we note the intervention of the Christmas vacation) that it was ready for collection. This amounted to over 1,500 pages. The claimant said on 5 February some items were missing. A search was made, and she was told on 19 February there was additional material to collect. On 26 February she was told 3 pages of handwritten notes had been found and could be collected. A query about search terms was answered on 9 March, and a complaint on 23 March, and another on 13 April, and another on 30 April. The letters are courteous and full. The claimant referred her complaint about the adequacy of disclosure of data to the Information Commissioner, who declared on 4 July 2018 that all data had been supplied in accordance with the Act. One (hard copy) letter of support for the claimant from an outsider was later found among the Principal’s papers and was sent to her. We could not see from this that the respondent had delayed or restricted its searches, or that the claimant had been subjected to detriment in their handling of her SAR, let alone because of protected acts. Sex Discrimination

[97]Section 13 of the Equality Act prohibits direct discrimination where “A treats B less favourably because of a protected characteristic”, in this case, the difference in sex. The claimant argues in the alternative that all the detriments to which she was subject were because she was a woman. She points in particular to conflict with Tim Jones over funding, and then the dismissal, and to the fact that the three academics on the senior management team (the two non-academics are women), and both those who decided to dismiss her and her appeal, are men. Applying the reverse burden of proof in section 136 we considered what had been proved and whether she had established a prima facie case requiring explanation. We accept as a general proposition and based on experience that gender socialisation means that some men can better tolerate assertive behavior from a male subordinate than they would of a female. We see that all the decision makers – including her line manager – were men. We lack any information on how any actual male colleague has been treated. We have to construct a hypothetical male who behaved as she did and was dismissed without process, and so on. We do know that the claimant was particularly assertive, so much so that her behavior had attracted a complaint, not from men, but from two women colleagues, after the 20 October meeting. If a man had behaved as she did in this meeting, the two women are likely to have complained of that too. This suggests that the way she behaved could be regarded as out of order by women as well as men. In the absence of other factors suggesting the difference of sex was material, the claimant’s assertive behavior did not receive less favourable treatment because of any gender stereotyping; or that this perception of her behavior was a reason for dismissal. In the light of this we concluded the claimant had not established facts from which we can make an inference establishing a prima facie case requiring explanation from the respondent. She was not dismissed summarily because she was a woman. Failure to be Accompanied

[98]Section 10 of the Employment Act 1999 provides that where a worker is invited by his employer to attend a disciplinary or grievance hearing, and he reasonably requests to be accompanied the hearing, that request should be accommodated. The ACAS Code on Discipline and Grievance goes further (paragraphs 9 and10), providing that if there is a disciplinary case to answer, the employee should be notified in writing, and “the notification should also advise the employee of the right be accompanied at the meeting”.

[99]The respondent argues that the claimant made no request to be accompanied, so she was not refused a companion, and there is no breach.

[100]On the facts, the claimant was wholly unaware this was to be a disciplinary meeting. Telling her late at night that HR might be present next day does not tell her it is a disciplinary meeting – it might be an investigation. Indeed, according to Mr.Jones, he did not set it up as disciplinary meeting, intending only to investigate, and it only became one after the break. It cannot be right that a worker can be deprived of the right to be accompanied at a disciplinary hearing simply by not telling him it is a disciplinary meeting, so he does not know to bring a companion. It was open to the Respondent to adjourn and tell the claimant they were considering disciplinary action and why, so she would know or find out that she had a right to a companion, even of they did not also heed the ACAS Code and tell her she had the right to be accompanied.

[101]The complaint is well founded, and we award two week’s pay. This is the maximum, and is awarded because this was not a technical breach, or a dispute over whether either side acted reasonably in the making of arrangements. It was a wholesale overriding of the statutory right. Had she known, she is likely to have arranged a companion, as she did at the appeal hearing when she took a trade union representative, and at the very least the parties would probably not have been so much at cross purposes in the discussion. Contribution

[102]By Way v Crouch

(2005) IRLR 603

, a reduction to awards for contributory negligence can be made in equality cases as in common law claims for damages: “the award of compensation in a sex discrimination case (and by analogy in other discrimination claims) is subject to the Law Reform (Contributory Negligence) Act 1945 which allows for reduction in compensation in tortious claims where the claimant's conduct itself amounts to negligence or breach of a legal duty and contributed to the damage”.

[103]The claimant did not intend the consequences of distributing her notes. They were ironic in tone, intended to covey the real world in which instrumentalists and singers would have to find work and build a career, and how to behave to get on in precarious world of sessional booking (an original gig economy). It was suggested that she had disobeyed orders, but we think distributing notes widely was unobjectionable in itself, and is practice followed at other institutions – Neil Heyde said he had not seen it done in his 25 years at the Academy, but the development of electronic communication has radically altered practice in 25 years; the claimant had at UCL received all sorts of unrelated lecture notes by email – science subjects for example. She was compliant with her managers’ requests. At the appeal stage she said she had been forced against her better judgment to distribute them, but we think this is revision with hindsight, and that she gave the matter no thought at the time, and was concerned only to generate take-up of the Professional Development Pathway, as encouraged by the respondent’s managers. The respondent has always criticised her decision to send them out without “framing”, to explain their purpose. Although the respondent dissociated itself from the content in the public statement, they appeared to agree she accurately represents the life of (some) orchestras. At most the claimant can be accused of foolishness in failing to anticipate how a superficial readership might wrench some of the terms out of context and manufacture a sense of outrage that was entirely disproportionate (on a plain reading of her notes and email) to the document’s plain intent. The good feedback from the lecture as delivered, seen to have been stimulating, may have lulled her into thinking it would be read as intended. Some (a very small proportion) of the content was provocative, an old pedagogical technique to stimulate interest. On the other hand, she was a woman of mature judgment, who had been in education in London, at least part-time, for some years, and so familiar with the culture of protest and activism in which isolated terms can be seized on and misrepresented by a minority as condoning or encouraging the behavior it describes, all magnified in influence by social media. To that extent only - that she should have considered more carefully how her words might read if taken without introduction to the lecture material and out of context, and should have edited them with that in mind– was she in any way negligent in her duties as a lecturer and so at fault in contributing to what occurred.

[104]After anxious debate, and reflecting that she was new and inexperienced as a lecturer, we concluded that there should be a reduction to reflect some foolish want of judgment in failing to anticipate how her notes might be read by a younger generation, but that it was not more than 10%.

Relevant Law

[1]The respondent is ordered to pay the claimant £157,488.67, as compensation for victimisation and wrongful dismissal. This includes past and future loss of earnings and pension, injury to feelings, and interest on past loss and injury to feelings. It has been increased by 20% for failing to follow the ACAS Code, reduced by 10% for contribution, and grossed up to reflect the income tax payable on the award in 2018/9.

[2]The respondent is ordered to pay £945.54 for failure to allow the claimant to be accompanied at a dismissal meeting.

[1]In a decision sent to the parties on 14 November 2018 the Tribunal found that the claimant had been dismissed as an act of victimisation, wrongfully dismissed, and should have been accompanied at a meeting. It was also held she had contributed to dismissal by 10%.

[2]Today the Tribunal heard from the parties about appropriate remedy. Evidence was heard from the claimant and from Mr. Paul Riddell, the respondent’s human resources director. There was a bundle of documents with her applications for posts, and details of posts the respondent said she should have applied for.

[3]The parties were agreed on the award for injury to feelings, and on loss to date. The Tribunal must resolve disputes on the right award for future loss, and on whether loss of pension should be calculated on a simple or complex basis. We must also resolve what uplift is right for failure to follow the ACAS Code. Relevant Law

[4]Victimisation compensation must be assesses as loss in tort. It is for the respondent to show there has been a failure to mitigate loss. Any statutory uplift in award must be proportionate overall. Relevant

Findings of Fact

[5]The claimant was 58 at dismissal and will be 60 in June 2019. Although there was no default retirement age, she could have drawn a pension in the Teachers Superannuation Scheme (which she had joined on starting work for the respondent) at age 66, and accepts she would probably have worked until then. She had made a decision some years earlier, when she started her doctoral work, to move into academic life rather than continue as a musician in professional orchestras, in the hope of attaining more security and a pension. She had stopped the rigorous practice regime necessary for that career, and does not believe she would now be able to get back her level of performance even if she were to resume practice. The tribunal accepts her evidence on that. She has continued to undertake other performance work, as well as individual instrumental tuition, and remains with the agencies where she is registered for both areas of work. Historically she undertook instrumental teaching at schools outside London, but that has not been for some time. It was suggested that she should have applied for a job at a school on Haywards Heath, but she points out that it is for 2 hours a week at £20 per hour, and will not meet the cost of travel. She has not been able to increase to any real extent the amount of this work. The value has increased slightly; the claimant says this is because the Christmas season is always busy but otherwise business will be slack until the round of Easter Messiahs. On tuition, she says the limiting factor is the number of bassoons a school has for loan, given the high cost of an instrument.

[6]The claimant does not have a music degree; her qualifications are in performance. Her PhD is in sociology of music. She does not have experience of teaching performance to a group, in conducting an orchestra or a choir, or of teaching academic music in a class; she cannot teach composition, and has no skills in music technology. As we understand it, while she taught individual bassoon pupils what is needed to pass the grade 5 theory required to progress to grades 6 to 8, she is not able to teach music at GCSE or A level, or at least has no experience of that, which restricts the advertised teaching roles she can apply for, even in independent schools which may not require a formal teaching qualification. She has done some examining of bassoon players for the Guildhall, now Trinity Board, but when she applied for work at Associated Board some years ago she could not satisfy the requirement to test general musical ability as she could not play the piano to an adequate standard, so there is no scope for increasing her income in that direction.

[7]Her academic role has been confined to the 2 months in post at the Academy, and occasional assistance at Westminster University. She has presented papers, but has no record of publications, a handicap in obtaining university teaching.

[8]Her best hope of employment in the music field therefore is in the conservatoires. The academic recruitment round is largely from February to May, to start in September. In 2018 she applied for six posts in London, and was not shortlisted for any of them. It is not known what may come up this year. It is possible, but no more than that, that there may be a professional development role at the Guildhall. There are four conservatoires in London (including the respondent) and the claimant agreed she could also travel to Birmingham if a post came up there, although Manchester. Leeds and Cardiff are too far to be realistic, as she has to supervise the care of her severely disabled mother who is in London. Music is taught in some other HE and FE colleges – we saw advertisements for posts in West London and in Croydon – but the requirement for knowledge of digital technology suggests that they are not focused on classical music.

[9]There are a few administrative roles in institutions teaching music and other performance such as University of the Arts. The claimant has not applied for any in 2018. We thought she may have been hasty in dismissing them. For example, a post at the Royal College of Music for administration was rejected because it was for the department of composing and conducting, but the job description did not suggest the administrator was required to know much about composition or conducting. Such jobs were advertised at lower rates: the RCM post in range £25,904-£28,664, against the £34,500 (FTE) paid for her role with at the respondent. A post for a charity encouraging school students to apply to university was advertised at £23,000 FTE. A temporary part-time student support officer (largely a clerical role) was advertised as temporary and part-time at £15.38 per hour. There was a post in digital marketing for an orchestra at £25,00- 28,000 for 12 months.

[10]She has recently applied for a one-year fixed term contract post as Student Life Officer at the Guildhall School, for 21 hours a week at £34,2390 to £38,730 FTE according to experience. The outcome is unknown. This seems to be the only administrative role at comparable pay to the job she held with the Respondent.

[11]The claimant asserts she is handicapped in her search for work in the close knit work of classical music by the fact of dismissal and the tribunal claim. We did not accept her recent evidence that she was told by telephone that she was not shortlisted in this year’s academic appointments because she was viewed as “toxic” because of her dismissal. We do however credit that, fairly or not, it is something that employers take into account, concerned that such individuals may be troublesome. Mr Riddell conceded as much from his experience in previous areas where he had worked, though he added he had not heard it in his current post. We know from the circumstances of the claimant being asked to resign as a governor of the RSM (see reasons for liability decision) that influential people in classical music appeared to have made a decision about her without investigation of facts. In our collective experience there are many employers who on hearing that someone has made a tribunal claim after being dismissed for gross misconduct will not read the decision, or even if they do, will conclude there is no smoke without fire. The dismissal and the tribunal claim were widely reported. Internet searches will bring up the story for some time. The decision may vindicate the claimant, but gossip is powerful and unfair. Our view is that it is a factor likely to put the claimant at a disadvantage in a small and tight labour market. If it is not a reason why she has not been shortlisted for any post in 2018, when in 2017 she had been so successful, it shows how very competitive the market is, and how difficult it is to get a job, even if well qualified. The fact that she has been dismissed, and forced onto a difficult market, puts her at a disadvantage, and while time will increase the number of posts she can apply for, in each successive year she will then have been out of the labour market for longer, and with an increasing gap in her CV to explain. The claimant was criticised for mentioning her dismissal in slightly combative terms in her 2018 job applications, but Mr Riddell conceded she would have to offer some explanation for the early termination by the respondent, and though he thought it could have been done more blandly, misconduct can be difficult to explain away, even with a favorable tribunal decision.

[12]Mr Riddell also gave evidence that following the claimant’s departure the respondent had reassessed their need for professional development and had reassigned some roles to existing staff and cut the two 0.6 posts to 0.4. There were no documents, not a single allusive email, evidencing these decisions. It was suggested by Mr Riddell that even without the dismissal the claimant’s role would not have been confirmed at the conclusion of probation, and there was a 40% chance she would have been dismissed in any event. We did not accept that there would have been a restructure if the claimant had not been dismissed when she was. More likely such changes as were made were consequential on the need to manage the role after she left; had she not been dismissed there is no evidence changes would have been made.

[13]We concluded that the claimant’s chances of getting a similar academic post to that she held with the respondent are so low as to be nil. There are only five institutions which might have posts. The posts are new in concept and not typical. She was lucky to get the post she did. She is at a disadvantage because of the dismissal, however unfair this is. She has failed even to be shortlisted for similar jobs in the current year. The longer she is without such work, the more difficult it is likely to be, though she could perhaps manage to fill the gaps with administrative work. It is not realistic to hold that she will find any similar role before retirement age.

[14]We do anticipate she has better prospects if she widens her net to take in administrative work. We hold it reasonable to have focused on the conservatoire posts in 2018, but it would be reasonable now to look at administrative posts in the field of music. This is still a crowded field, but her varied experience may be an advantage compared to recent graduates. Difficult though it is to make an accurate assessment, on the evidence that such posts are available at wider range of institutions, we expect her to have found some regular work by the start of September 2020, though there is likely to be a partial loss of earnings when she does. There is meanwhile little scope for drumming up additional performance or teaching work to mitigate the loss of her 3 day a week post. Calculations

[15]On that basis, we make the following calculation. Her net monthly pay was £1,499.09. From dismissal to the remedy hearing is 61 weeks, so the loss to date is £21,102. From this are deducted the payments for the appeal period of £1,192.17, so 19,910.20 net. No reduction is made for other earnings as they are at about the same level as she would have earned had she not been dismissed from her 0.6 job.

[16]For future loss, there is another 20 months of loss (to September 2020) at £1,499 per month: £29,981.

[17]Thereafter, the difference in FTE salary varies from nil (the Guildhall post) to £8,000 (the RCM post), £8,500 (digital marketing) to £10,500 (school support officer). Applying the part-time hours (0.6) gives a range from nil to £4,000, £5,100 and £6,300 gross per annum. As a measure of this partial loss the Tribunal takes a figure of £5,000 gross per annum. Applying deductions for basic rate tax (20%) and employee national insurance (12%), the loss from September 2020 to retirement in June 2025 runs at £3,400 per annum. Using the table A6 for deferred loss from the PNBA 2018/19 Facts and Figures, the multiplier for a period starting in 1 year 8 months, and lasting for a little under 5 years, discount rate -0.75, is 4.81. The future partial loss therefore is £3,400 x 4.81= £16,354.

[18]The total future loss of earnings, full and partial, is £46,335. Pension loss

[19]The claimant was a member of TPS, a defined benefit scheme. Unusually for these days, most of the alternative posts still carry membership of one such scheme or another, whether TPS for teaching, USS or LGSS for administration. Given the financial advantages if a defined benefit scheme, and how close the claimant is to retirement, we considered it right to follow the complex method to achieve just compensation for loss.

[20]On the assumptions made so far, the claimant is likely to be out of TPS membership as a result of dismissal for 2 months short of 3 years. Her benefit on retirement would have been a pension of 1/57 of each year’s gross salary and assuming no pay rises, so £34,500 x 0.6 x 34/36 x 1/57 = £343 per annum. Taking a multiplier at discount rate -0.75% from the table in appendix 2 of the Employment Tribunals Pension Principles document for a woman aged 59, retiring at 66, it is 26.9. The loss of TPS pension is then £9,267.

[21]Thereafter there is a small loss, related to the partial loss of earnings in administrative work, and the possibility she may be in a more generous scheme (LGSS, 1/49 earnings) or less (USS 1/75 earnings). Taking a mean (between the two possible schemes) pension on £5,000 gross per annum of £84, multiplied by 58/12 (4 years 10 months) in the scheme, the loss on retirement is £406 per annum. Applying a multiplier of 26.90 from retirement age, that loss is worth £10,921.

[22]In both cases the amount in question is likely to be below the annual tax threshold when the pension is in payment, even if the claimant is also in receipt of basic state pension, now £6,549 per annum.

[23]There was no evidence to suggest that the claimant would not have continued in part-time employment until retirement age, and as stated we do not accept there would have been a failure to confirm her probation had she not been dismissed. There is nothing to suggest she is not in good health, and future redundancy or funding changes at the Academy have not been argued. Nevertheless, the claimant proposes a discount for the risk she would have left the pension scheme before retirement of 15%. That reduces the sum of the two pension awards, £20,188, to £17,160.

[24]Interest is to be calculated on the loss of earnings to date at 8% from the mean point, so 30.5/12, and is £464.50.

[25]The future losses are £63,495 (loss of earnings £46,335 plus pension losses of £17,160).

[26]The total past loss, interest on past loss and future loss including pension is £83,870.70. Injury to Feelings

[27]The agreed award is £15,000. To that is added 8% interest from the dismissal 14 months ago, £1,400.

[28]Added to the past and future loss of earnings and pension that brings the total to £100,270.70.

[29]By virtue of the amendment in section 5(7) of the Finance (No 2) Act 2017 the injury to feelings award is now taxable in 2018/9. Increase for breaches of ACAS Code on Discipline and Grievance

[30]The claimant was allowed to appeal the decision, but as set out in the liability reasons the respondent failed in every other respect to follow the Code, which is not restricted to those who have two years qualifying service. She was wholly unaware that her job was on the line, or that she was being investigated for misconduct, or what the misconduct might be. Even if the respondent wanted to act quickly when faced with rapid escalation by students, there was no reason not to (say) suspend and give the claimant time to consider what to say or understand the position. It was not a technical breach. Under section 207A of the Trade Union and Labour Relations Act as amended we can increase the award by up to 25%. Conceding that the claimant did have an opportunity to appeal the decision, the only stage of the Code the respondent followed, we increase the award by 20%.

[31]Applying an increase in award of 20%, and a reduction for contribution to dismissal of 10%, the final award of £100,270.70 is increased by 10% to £110,297.77. Failure to be Accompanied

[32]It is not in dispute that the award is 2 weeks’ pay at £472.77 gross (inclusive of employer pension contribution), so £945.54. Grossing Up for Taxation

[33]The purpose of compensation is restitution, to put the claimant in the position she would have been but for the wrong. Assuming the victimisation award is paid in tax year ending April 2019, and that her casual earnings from teaching and performance in that tax year are £8,298 (adjusting the £9,681 in the schedule, as it was earned over 14 months), those earnings are within the nil rate band, currently £11,850. The first £3,532 (11,850 – 8,298) of the award will be free of income tax therefore.

[34]The next £34,500 is taxed at 20%. So the sum to award to put the claimant where she would have been but for basic rate tax is 34,500 x 100/80, £43,125 (addition for basic rate tax, £8,625). The amount of the award falling into the higher rate tax band is £110,297, less £3,532 (tax free) and £34,500 (at 20%), so £72,265, but will also now have to include the addition for basic rate taxation, 8,625, so the total taxable at 40% is £80,890. Of that 30,000 can be discounted as within the statutory concession. Dividing £50,890 by 60 and multiplying by 100, the amount required to leave the claimant £50,890 in this band is £84,816.67.

[35]Adding £3,532 (nil rate), plus £34,500 (20% band), plus £84,816.67, plus the £30,000 tax free the total award for victimisation is £152,848.67. However, as income over £100,000 reduces the personal allowance pound for pound, the claimant will by virtue of the award now have to pay tax at 40% on £11,600 of her income, even allowing for the statutory concession. It is necessary to add a further £4,640 to achieve restitution, bringing the total award grossed up for tax liability to £157,488.67. As £30,000 of this is not taxable, it is fortunately not necessary to adjust the award for the 45% rate payable over £150,000, even taking the claimant’s other income into account. RECONSIDERATION

Relevant Law

[1]The claimant has pointed out there is an error a calculation error in paragraph 20 of the reasons, as the fraction for calculating 34 months’ loss has been stated as 34/36, when it should be 34/12.

[2]Following this through, there are consequential changes to make to the figures stated in paragraphs 23, 25, 27, 29, 31 (cumulative total loss), and 34 and 35 (grossing up that loss for tax). The claimant does not ask for further grossing up to reflect additional tax for loss of personal allowance.

[3]The correct total for the award in paragraph 1 is therefore £186,181.

[4]Having checked the calculations, the judgment is varied accordingly. Given the parties’ consent and rule 72(2), there is no need for a hearing.