Miss M Duffield v London Borough of Hammersmith and Fulham: 2210083/2023

EMPLOYMENT TRIBUNALS

Case No 2210083/2023

Between

Miss M DuffieldClaimant

London Borough of Hammersmith and FulhamRespondent

Before

Employment Judge Norris

Date 3 September 2024

JUDGMENT

The Claimant’s claim for detriment for having made protected disclosures is not well-founded and fails.

REASONS

Claim

[1]By a claim lodged with the Tribunal on 8 June 2023, the Claimant claims detriments for having made protected disclosures.

Hearing

[2]This was a remote public Hearing before a full panel. The Claimant was accompanied by her daughter who was sitting with her. There were a number of observers during the Hearing. They kept their cameras off and their microphones muted.

[3]All participants were informed at the start that the Hearing was being recorded by HMCTS and that it was an offence for them to make their own recording. They were, however, encouraged to make their own manual or typed notes of the proceedings if they wished.

[4]The Tribunal ensured that each of the witnesses, who were all in different locations, had access to the relevant written materials: a 1,012-page bundle and a 55-page bundle containing all the witness statements. The Tribunal also had before it Mr Harding’s skeleton argument.

[5]When a party or witness was unable easily to locate a particular page or item in the bundle or statement, the Employment Judge displayed that page on the screen, save where such document contained sensitive personal data of a third party or material that would have contravened the Sexual Offences (Amendment) Act 1992.

Background

[6]The Claimant has been employed by the Respondent since 27 April 2015. She is an Area Sheltered Housing Manager for the south of the region. Her line manager at relevant times was Ms Yvonne Stoney, Sheltered Housing Service Manager. It is common ground that the Claimant and Ms Stoney started work for the Respondent at or around the same time and were initially peers. At first and for some years they had a good working relationship.

[7]The Claimant says however that in February 2020 she made protected disclosures to Mr Mark Meehan, then Chief Housing Officer, and that shortly after that meeting, Ms Stoney’s attitude towards her changed to one of hostility. Incident, December 2022

[8]On 5 December 2022, one of the Claimant’s team members, Ms Angelique Blondell, told the Claimant that one of her tenants had been involved over the weekend in an “incident” with another resident in the block where he lived. We refer in this decision to the alleged perpetrator as Mr X and the alleged victim as Ms A. Mr X told Ms Blondell that Ms A had reported him to the police for a sexual assault, and that he had been arrested but released on bail. His bail conditions included that he was not to return to his flat without a police escort and that he was not to contact any possible witnesses.

[9]The Claimant decided and conveyed to Ms Blondell that Mr X could be temporarily relocated to a “guest room” in another of the Respondent’s housing schemes. Reporting of the incident

[10]Neither Ms Blondell nor the Claimant referred the matter to Ms Stoney, until 24 January 2023, when the Claimant raised it at the end of a management team meeting in the context of needing to move Mr X; the guest room in which he had been staying was required for someone else.

[11]The Claimant describes Ms Stoney as “very annoyed” that the Claimant had not informed her about the incident previously. Ms Stoney says that the following day, she discovered on the Respondent’s system that Mr X’s employer was a repairs contractor used by the Respondent. She emailed his employer to say that he had been arrested “for the rape of another tenant in the scheme where he lives”. Claimant’s suspension

[12]On 27 January 2023, the Claimant was suspended on full pay by Mr Theo Addae, at the time Head of Neighbourhood Services, pending an investigation. Mr Addae had joined the Respondent less than three weeks earlier (9 January 2023). The virtual meeting at which Mr Addae suspended the Claimant was the first occasion they had met. Ms Blondell was also suspended pending investigation. Both the Claimant and Ms Blondell were required to hand in their laptops and work mobile phones by 30 January 2023. Claimant’s grievance

[13]On 2 February the Claimant submitted a “workplace concerns” document about Ms Stoney and Mr Addae. She did not assert in the document regarding Mr Addae that she had made a protected disclosure, or more than one, or that his suspension of her had been motivated by whistleblowing. However, in the document regarding Ms Stoney, the Claimant said in summary that:• On an unspecified date, she had been sitting with the previous Head of Neighbourhood Services, Mr Peter Hannon, Ms Stoney and Ms Anne Needham (the Claimant’s counterpart for the north of the borough) when a discussion arose about a colleague, to whom we refer as AL. AL was a temporary employee with the Respondent and has cerebral palsy. Prior to AL starting work, Occupational Health (OH) had assessed her as being able to do the job provided the Respondent made certain reasonable adjustments. AL had since applied for a permanent position with the Respondent. Ms Needham said to Mr Hannon and Ms Stoney that there were limited places to which AL could be deployed and queried with Mr Hannon whether AL should be referred back to OH. Mr Hannon replied to the effect that there would be no need if AL’s application for the permanent role was unsuccessful.

• On another unspecified date, she had overheard Mr Hannon, Ms Stoney and Ms Needham laughing and joking about a different colleague, MR. The Claimant described MR as being “quite challenging” and said MR had been off work for some time and had a “possible disciplinary” hanging over her. The Claimant considered that Mr Hannon, Ms Stoney and Ms Needham had made it quite clear that if MR was not dismissed for capability she would be dismissed for conduct.

[14]The Claimant said that she had relayed the contents of the latter conversation to MR, who in turn passed the details to her union representative. This had resulted in the Claimant being called in to see Mr Mark Meehan, then Chief Housing Officer, the following day. The Claimant had told him about the conversations detailed above and observed that there were difficulties in Ms Needham’s team which did not exist in hers. She had suggested he look into whether it was staff or management performance that was causing the issues. Internal investigations and outcomes

[15]The disciplinary investigation into the December 2022 “incident” and its aftermath was carried out by Ms Joanna McCormick, Assistant Director Procurement and Commercial Finance, and a report sent to the Claimant on 6 June 2023, recommending the Claimant and Ms Blondell be referred to formal disciplinary hearings. There was also a recommendation that Ms McCormick should meet the Director of Housing and Head of People Operations to address what were described as “significant gaps” in operational systems and processes to ensure future effective safeguarding of residents.

[16]An investigation was undertaken by Ms Spence, Programme Manager, into the concerns that the Claimant had raised. This commenced on 9 June 2023.

[17]A disciplinary hearing took place on 27 June 2023, with the allegations against the Claimant as follows:• That despite knowing of the allegation [against Mr X] she was complicit in allowing him to continue to use council-owned residential property. This action was said to raise serious concerns by compromising the safeguarding of other residents; and

• That her actions compromised the Council’s duty of care to the residents involved in the incident and those who reside and work in its sheltered housing schemes.

[18]On 30 June 2023, the Claimant was informed that the allegations were upheld but in light of mitigating evidence, the decision was taken to give her a written warning. The Claimant’s appeal was heard on 22 September 2023. The outcome, sent on 5 October 2023, was that the original decision was upheld.

[19]The outcome of the investigation into the Claimant’s workplace concerns, which was not conveyed to the Claimant until 22 December 2023, was that some of the concerns were upheld. The concern with which this case is connected (“Concern 4: Whistleblowing being a catalyst for Marianne recent suspension”) was not upheld. Issues and evidence

[20]At a PHCM before EJ Davidson on 28 September 2023, it was agreed that the Respondent would finalise the list of issues in draft and send it to the Claimant. Once the list was agreed, it was to be sent to the Tribunal no later than 14 December 2023. In fact, the Claimant agreed on 20 October 2023 to the Respondent’s draft list. That was therefore included in the bundle before us.

[21]The issues in the bundle were said to be as follows (typographical errors in the original corrected): Protected disclosures 1. Did C make any protected disclosures: a) Did C disclose information: i) On 17 February 2020 in a meeting with Mark Meehan, Chief Housing Officer,• That [AL] had requested reasonable adjustments, she had not been referred to OH for an assessment, and no adjustments had been made;

• That [MR] had been bullied and harassed; ii) On a later date sending Mark Meehan copies of text messages received by [MR]? b) Did C believe that any disclosure was made in the public interest? If so, was such a belief reasonably held? c) Did C believe that the disclosure tended to show any of the matters in section 43B(1) ERA 1996? d) If C did hold such a belief, was it reasonably held? e) If C made a protected disclosure, was the disclosure made in good faith? Detriments 2. The report by Yvonne Stoney to Mr Addae that led to the suspension of C by Mr Addae on 27 January 2023: a) Did C tell Yvonne Stoney that [Mr] X was on police bail for possible sexual assault? b) Did Yvonne Stoney report to Mr Addae that [Mr] X was on bail for rape? 3. Did the report by Yvonne Stoney to Mr Addae amount to a detriment? 4. If so, was any difference in the reason for [Mr] X being on bail “on the grounds” that C had made a protected disclosure? 5. Did Yvonne Stoney know that C had made a protected disclosure? 6. If so, did Yvonne Stoney’s knowledge of the protected disclosure materially influence her reporting of the reason for [Mr] X being on bail? 7. Did the suspension of C by Mr Addae on 27 January 2023 amount to a detriment? 8. If so, was C suspended “on the ground” that C made a protected disclosure? 9. Did Mr Addae know that C had made a protected disclosure? 10. If so, did Mr Addae’s knowledge of the protected disclosure materially influence his decision to suspend C? 11. Was Mr Addae’s decision to suspend materially influenced by any difference in the reported reason by Yvonne Stoney for [Mr] X being on bail? There then followed issues going to remedy.

[22]Following introductions on day one of the main Hearing, the Employment Judge raised the fact that the Claimant did not appear to be suggesting that any matters post-dating 27 January 2023 were part of the claim. In particular, the Claimant had not suggested that her written warning was a detriment, although passages in her witness statement, which the Judge had read in advance, appeared to suggest she believed it was, referring to that warning as “too harsh” and “excessive”. Mindful of the fact that the Claimant has been legally unrepresented throughout, the Judge invited the Claimant to comment on this point.

[23]The Claimant said that she should have set out in the list of issues all the detriments leading up to her suspension, that being the last detriment in the chain of events (while also saying that she also considered the imposition of the warning to be a detriment because she had made a protected disclosure). She repeated that the suspension was the last event in a chain and that with hindsight she should have asked the Respondent to amend the list of issues once she realised these other events were not on there. That realisation had occurred in or around February or March 2024.

[24]The Respondent’s representative, Mr Harding, submitted that the Respondent had prepared for the case as it was. Time was limited and if the Claimant wanted to make amendments to the list of issues, it was for her to apply to do so. However, he observed, she would first have to apply to amend the claim.

[25]By agreement, the remainder of the first morning of the Hearing was spent by the panel reading in to the claim and by the Claimant considering whether she wished to make such an application to amend the claim and/or the list of issues. The Claimant was informed that she would need to be very specific in any such application (it would not, for instance, be sufficient to claim “everything that happened before the suspension” was a detriment). She would have to say why she believed it to be a continuing act and why she had not brought the claim before.

[26]At 14.00, the Hearing reconvened. The Claimant gave details of a further 19 detriments she claimed to have suffered on the grounds that she had made a protected disclosure or disclosures. We then started to look at the specific way in which she puts her case under section 43B Employment Rights Act. The Claimant seemed to need a little more time to identify where in the documents in the bundle her protected disclosures are set out.

[27]Mr Harding indicated that the Respondent would oppose any longer application to adjourn and would make a costs application if one was made. That said, he submitted, it would not be possible to complete the case in the four days for which it was listed if it had to be postponed. It seemed more likely to require a ten-day listing. Several substantial new witnesses would be required to give evidence. The Respondent would have to be given the opportunity to respond to the new allegations, many, if not all of which, were out of time. He also contended that the allegations stood little or no reasonable prospect of success, describing them as “built on sand”.

[28]We adjourned again so that the Claimant could consider whether she did want to apply to adjourn (a likely ten-day listing being at least 10-12 months away) and to identify the protected disclosures in the bundle. On reconvening, the Claimant said she wanted to proceed with the case as it was already pleaded. We completed the identification of the protected disclosures and adjourned to day two. It was not considered appropriate to consider as a preliminary point whether the protected disclosures met the legal definition in the Act.

[29]As agreed with the parties on the morning of day two, the protected disclosures are now said to be as follows:(i) On 17 February 2020, the Claimant told Mr Meehan that she heard Mr Hannon, Ms Stoney and Ms Needham speaking in July 2019 when Mr Hannon had just been put in charge. Mr Hannon said this was “a real opportunity to shape” the team. They had concerns about AL who was on a fixed term contract and had applied for a permanent position, for which they did not feel she was fit. Ms Needham had previously discussed sending AL back to OH. Mr Hannon said not to bother sending AL back to OH as there was a possibility she would not come through the interview process. AL did not get the job. The Claimant says that this was a disclosure of information which tended to show that the Respondent was failing in its duty to apply the correct procedure.

(ii) On the same occasion, the Claimant told Mr Meehan that around two months later, the same people had been discussing MR and they were “laughing and joking” about her, which the Claimant found unsettling. MR had put up notes on a noticeboard in a tenant’s scheme and had been told she had been wrong to do so. Ms Stoney said that they were going to discipline MR and now there was also a Long-Term Absence process taking place. The Claimant interpreted this as Ms Stoney using an opportunity to get rid of MR although those had not been the words Ms Stoney used. The Claimant went on to say to Mr Meehan that MR had told her she was being bullied by Ms Needham and had felt unable to take the issue to management. The Claimant had advised MR to speak to OH and to Mr Alastair Allen in HR. MR did so, but nothing was done. The Claimant says that this was a disclosure of information which tended to show that the Respondent was in breach of its legal duties i) to give MR a fair hearing in her Long-Term Sickness review and ii) to go through the correct procedures when people are raising bullying.

[30]On day two, we heard oral evidence from the Claimant who was cross examined until lunchtime with a break mid-morning and then answered the panel’s questions after lunch before being released.

[31]We also heard evidence for the Respondent from Ms Stoney (late on day two and until mid-afternoon on day three), Mr Addae (interposed on the morning of day three), Mr David Rogers (Head of People Operations), and Ms McCormick (both late afternoon of day three). On the morning of day four we heard oral submissions from the Respondent and received written submissions from the Claimant and reserved our decision.

[32]We do not set out all the evidence or submissions in this decision save where relevant, but we had regard to everything that we heard and read during the Hearing. We do observe however that the Claimant made the submission that she was prevented by the Employment Judge from questioning witnesses about anything that happened after 27 January 2023. This is not correct. The Claimant was however reminded that the last pleaded detriment was her suspension on that date and therefore any questioning about events that took place thereafter had to be relevant to the issues in the case.

Law

[33]According to section 43A Employment Rights Act 1996, a “protected disclosure” is a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of section 43C to 43H.

[34]Section 43B says: (1) In this Part, a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following: … (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject; … (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. … (5) In this Part, “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).

[35]This means that the Tribunal must consider whether:a. There has been a disclosure, or more than one, of information;

b. The worker believed the disclosure(s) were made in the public interest;

c. The belief was reasonably held;

d. The worker believed the disclosure tended to show one of the matters within paragraphs (a) to (f);

e. And that belief was also reasonably held.

[36]In “whistleblowing” cases it is therefore recommended1 that Employment Tribunals first identify the disclosure(s) relied on by reference to date and content, then identify the alleged failure or likely failure to comply with a legal obligation (each failure being separately identified), then address the basis on which the disclosure is said to be protected and qualifying.

[37]The source of the legal obligation should be identified and capable of verification, even if this was not done in strict legal language in the disclosure. It must be more than a belief that certain actions are wrong; they may be considered wrong because they are “immoral, undesirable or in breach of guidance without being in breach of a legal obligation” (Eiger Securities LLP v Korshunova

(2017) ICR 561

EAT).

[38]Tribunals should then go on to consider whether the Claimant had an objectively reasonable belief both as to the information on which they rely and that it was made in the public interest at the time of making it. The disclosure must meet a “threshold level of sufficiency in terms of factual content and specificity”2 before it can be objectively reasonable. A belief in the public interest need not be the predominant motive for making the disclosure.

[39]The detriment in question and the date on which it occurred should also be identified. Findings of fact and discussion

[40]Qualifying disclosure Did the Claimant make a disclosure of information, or more than one, to Mr Meehan at a meeting on 17 February 2020?a. We did not have any background information to this meeting in the bundle and neither the Claimant nor Ms Stoney was able to assist us as to how it came about. However, Mr Rogers had been present during their evidence and informed us when he gave oral evidence himself that he had looked into the matter the previous day. In summary he said that the meeting came about in the following way: i. On or around 13 February 2020, MR was in touch with the Claimant. The Claimant informed her that in the summer of 2019 she had overheard Ms Stoney discussing MR’s absence 1 Blackbay Ventures Limited v Gahir

(2014) ICR 747

EAT 2 Simpson v Cantor Fitzgerald Europe

(2020) ICR 236

EAT with Mr Hannon and Ms Needham. As the Claimant walked in on their conversation, she heard Ms Stoney say something along the lines of “if we don’t get [MR] out on sickness, we’ll get her out on a disciplinary”. ii. MR was dismissed on notice for ill-health capability by an Assistant Director, Ms Derby, on 30 December 2019. MR appealed and her appeal was heard on 2 February 2020 by Mr Meehan, assisted by Mr Draper from the HR department. iii. On learning from the Claimant of the conversation in summer 2019, MR informed her union representative of what the Claimant had told her, and he in turn relayed that discussion to Mr Meehan. The Claimant was invited to the meeting on 17 February 2020.

b. On 3 March 2020, Mr Meehan initially upheld Ms Derby’s decision to dismiss but following an indication from MR that her health had improved and that she would like to be redeployed within sheltered housing, Mr Meehan overturned the dismissal and MR was so redeployed.

c. Mr Rogers also told us that MR had indicated she would like to be considered for ill-health retirement but had been told, following an OH assessment, that she was not eligible. That was consistent with Ms Stoney’s evidence to the Tribunal, which had been that MR had also told her she was content to terminate her employment if she could have ill-health retirement. Disclosure re MR

[41]Returning to the meeting on 17 February, the notes that were taken (as amended subsequently by the Claimant) indicate that Mr Meehan read out an email he had received from the union representative. In that email, the Claimant was recorded as saying she heard Ms Stoney say of MR “this is our opportunity to get rid of her”. The Claimant responded to Mr Meehan that the contents were “pretty much” what she had heard. However, when pressed whether Ms Stoney had said expressly, “This is our opportunity to get rid of her”, the Claimant said Ms Stoney did not use those specific words. She did not go on to clarify what Ms Stoney had actually said.

[42]The Claimant now says that this information tended to show that the Respondent had breached, was breaching or was likely to breach its legal obligation to conduct a fair long-term sickness process.

[43]We do not accept that such information as the Claimant gave did indicate that the Respondent had failed or was failing or was likely to fail in its legal obligations towards MR. The decision to dismiss her for capability had been made by a different manager entirely and indeed, as soon as the Claimant had told senior management – even indirectly – of the conversation the previous year between her colleagues, she was immediately invited to the meeting with the Chief Housing Officer before he had given the appeal outcome. What the Claimant relayed did not suggest that the leadership team would fail to follow a lawful process, but rather that if MR was not dismissed for capability (a potentially fair reason), management would pursue a dismissal for conduct (also a potentially fair reason). Nonetheless, that decision would also not be taken by any of the three managers involved in the conversation.

[44]The other point that the Claimant makes in this connection is that she relayed to Mr Meehan that MR had told her she was being bullied and felt unable to take the issue to management. Therefore the Claimant said she had told MR to speak to OH and/or HR, which MR did, but nothing was done. The Claimant says this shows that the Respondent had failed, was failing or was likely to fail to go through the correct procedures when people raise bullying. However, this is flawed in a number of respects:a. MR had told the Claimant that she had not raised bullying because she was unable to do so. The Claimant cannot reasonably have believed that the Respondent had failed, was failing or was likely to fail to follow the correct procedure if MR did raise it.

b. Further, the Claimant does not know what MR eventually told Mr Allen and/or that nothing was done in response.

c. Perhaps most significantly, the Claimant also said to Mr Meehan it might be that MR was not being bullied and that it might be a figment of her imagination.

[45]We find in the circumstances that the Claimant could not have had a reasonable belief that the limited disclosure of information about MR to Mr Meehan tended to show a breach of the Respondent’s legal obligations towards her. Disclosure re AL

[46]What the Claimant said to Mr Meehan about AL was even more oblique, in that she told him:a. Mr Hannon had just been put in charge and had said this was a “real opportunity to shape the team”.

b. Those present knew of AL’s capability and did not feel she was fit for the permanent role.

c. Ms Needham had previously discussed sending AL back to OH.

d. Mr Hannon had said, “not to bother sending [AL] back to OHU as there was a possibility she would not come through the interview process”.

e. There were four people going for the job so AL might not have got it anyway, but it was “the way they were talking about her”. She did not get the job.

[47]We find that the Claimant was potentially confusing a failure to make reasonable adjustments with what she considered to be a “legal obligation” to follow a fair process in recruitment (she did not specify from where she believed any such legal obligation derives). However, there was no disclosure of such a failure because the Claimant conceded that AL was one of several people applying for the permanent post and may not have got it anyway. There has been no suggestion that the Claimant or indeed Ms Stoney was involved in the recruitment process (save that Ms Stoney confirmed in evidence that she gave AL feedback after the process was over) nor was there any evidence that those who were appointed to the permanent role were appointed other than on merit

[48]As noted above, a failure to make reasonable adjustments was the original allegation but this could not be maintained when considering the evidence in the bundle that AL had been referred to OH and a second laptop was ordered for her three months before she left, even if, as she reportedly told the Claimant, it did not arrive until her last day.

[49]We have also seen evidence that AL herself told Ms Stoney that she did not think all the recommendations that had been made by Access to Work were necessary. In an email dated 19 September 2018, she said, “Hi Yvonne, can we have a chat about this access to work thing. As I don’t think I necessary need everything they have suggested?” The panel is aware that any recommendations OH would make would probably not be nearly as specific as those made by Access to Work. These referrals are expensive in themselves and fulfilling the recommendations made can similarly be expensive. There is however no suggestion that Mr Hannon or anyone else in that conversation was suggesting that if reasonable adjustments were required, the Respondent would not make them, only that it was sensible to wait to see if there was a need for a further referral.

[50]Belief in the public interest Most importantly in terms of the definition of a qualifying disclosure (whether in relation to what she said about MR or AL), the Claimant says in her witness statement, “When I whistleblew [sic] in 2020 I had not even thought about whether it would be considered to be in the public interest or whether it was a protected disclosure. Since lodging my claim with the Employment Tribunal it soon became clear that the Court would have to be satisfied that what I reported was in the public interest and a protected disclosure…”.

[51]Thus, she cannot meet the definition, taking into account paragraph 29 of Chesterton Global Limited v Nurmohamed

(2017) IRLR 837

CA. The public interest was, by her own admission, not in the Claimant’s mind in relation to what she said about MR or AL in February 2020. It did not occur to her until after she lodged her claim (i.e. June 2023 at the earliest), more than three years later.

[52]This finding is therefore fatal to the Claimant’s claim. Because she did not have a reasonable (or any) belief at the time that what she told Mr Meehan was in the public interest, she has not made a protected disclosure and is not protected from being treated to her detriment in consequence.

[53]Detriments In case we are wrong on our analysis on this point however, we have gone on to make findings as to the detriments relied on by the Claimant.a. Did Ms Stoney report to Mr Addae on 27 January 2023 that Mr X was on bail for rape? If so, was the Claimant thereby subjected to a detriment? i. The email correspondence in the bundle shows that Ms Stoney first alerted Mr Addae to the issue on 25 January 2023. She said, in a message timed at 11.01: “…I am writing to keep you updated on a case that came to my attention yesterday. I have asked one of my Managers to provide me with more information as I am very concerned about the duty of care to staff and residents. Tenant at [redacted] has allegedly sexually assaulted another tenant. The police have been informed but the alleged perp has not been remanded in custody. The police have allegedly told us that he cannot be at the same scheme as the alleged victim…”. ii. Mr Addae responded to say he was in a meeting but would call as soon as he finished. At 11.32, Ms Stoney added “Just to also let you know, the alleged perpetrator is an employee of [redacted], the contractor LBHF use for Heating and Gas”. iii. At 13.56 on 25 January, Ms Stoney emailed two people, with a copy to Mr Addae, as follows: “[Redacted] is an operative working for [redacted], LBHF contract. [Redacted] was arrested for the offence of rape of another tenant in the scheme where he lives. He is bailed until 02/03…”

b. Accordingly we find that having initially described the incident as a sexual assault, by cc’ing him to the later email, Ms Stoney did tell Mr Addae that Mr X was on bail for rape, albeit this was on 25 not 27 January 2023. The Claimant claims that this “jump” from reporting of a “sexual assault” to a “rape” was detrimental to her. We find that it was not.

c. Mr Addae said in cross-examination, and we accept, that he always referred to the matter as a “sexual assault”. That had been how Ms Stoney initially referred to it and therefore that was the basis on which he proceeded. The evidence as noted above supports that recollection. Mr Addae also believes that Ms Stoney continued to refer to the allegation as one of sexual assault during their Teams conversation which took place later that morning.

d. Mr Addae said that neither the Claimant nor Ms Blondell had referred to it as rape and that he did not believe he was ever told it was. He did not recall being copied in to the 13.56 email. He said that in any event he was working from the outset that there was an alleged case of sexual assault. Regardless of the precise gravity of the allegation, he took it very seriously indeed.

e. We find that if there was a detriment at all in the change in the description, it was to Mr X, because his employer was alerted to the allegation by Ms Stoney in her email on the afternoon of 25 January. We find though that it made no difference to the Claimant, either in the way that Mr Addae viewed the matter (and hence her involvement in it) or in how he reported it to more senior managers in the Respondent’s leadership team.

f. However, the Claimant repeatedly sought to press this point in crossexamination and in her submissions. It was clear that she thought – even as late as the Hearing before the Tribunal – that there has to be violence involved in order for an allegation of rape to be made. It was also very clear that she had not considered whether the same categorisation could be made, for instance, absent physical violence but when the alleged victim was incapable through alcohol of giving consent, or was physically disabled and thus unable to fend off an attacker.

g. The Claimant is recorded as having said to Mr Addae during the factfinding investigation that Mr X “had explained the incident to [Ms Blondell] from his point of view and had advised that he went to help [redacted] of [redacted] and she returned back to his flat and they had consensual sex”. The Claimant denied having used those words, but Mr Addae was clear that if it was written down, that was what was said. Ms Blondell is recorded as having said “Alcohol was consumed and [Ms A] later went back to his property…”. We find that these are accurate records of the meetings that Mr Addae had with the Claimant and Ms Blondell.

h. Further, in her meeting on 9 February 2023 with Ms McCormick, the Claimant narrated the events of 3 December as they had apparently been relayed to her, and which we find significant:

(i) “…he went to her property and they began drinking. When the alcohol ran out, they went to his property and they became more friendly. She went home and he went to sleep. He was then woken by the police…”.

(ii) The Claimant had “told her line manager that a resident was claiming that she had been sexually assaulted by another resident. Her [line manager] asked her what she meant and [the Claimant] said she didn’t know but the resident was saying that he tried to penetrate her…”. (There were also allegations about biting, though it is not clear from the documentation before us who is said to have bitten whom).

(iii) The Claimant also said, “…she was aware that the female tenant had alcohol problems and so had come to social services’ attention previously”.

i. In addition, in her grievance hearing on 9 June 2023, the Claimant said that her understanding of what had happened on 3 December 2022 was that: “…[Ms A] invited him into her flat as she heard he was a bit of a handy man. He’d gone in and done whatever he needed to do. She said can I offer you a drink as a thank you and one thing led to another and they got a bit tipsy. They started massaging and things like that. One thing led to another and the next thing he knew, the next morning the police are hammering on the door and said you are being taken away for questioning as your neighbour has accused you of sexual assault…”. The Claimant was unable to say what she meant by the phrase “one thing led to another”, which she used twice in this context. The Tribunal notes that it is in common usage as a euphemism for two people having sex.

[54]It is also apparent from an interview conducted by Ms McCormick a month later with Mr Hayden Williams, Senior Social Worker, that the alert he had received from the NHS was that it was an allegation of “attempted rape and assault and that the victim had been strangled. She had suffered a stroke when she was 40…”. He later added that Ms A had been diagnosed with dementia, although he did not consider at any point that she lacked lucidity and he had no concerns as to her ability to protect herself.

[55]We consider that taken as a whole, the statements above are in line with what appears on handwritten notes, allegedly made by Ms Stoney on 24 January 2023 during the initial phone call with the Claimant about the incident: “Bailed 2 March. Accompanied by Police. Not to contact anyone who could. Forced her to have sex with him. Drinking went back to his flat. Forced himself on her. Taken DNA. Could carry on working”. We accept that these notes were jotted down contemporaneously by Ms Stoney as the Claimant told her what she knew, and it was thereby Ms Stoney’s understanding that Mr X and Ms A had had sex to which Ms A had not consented.

[56]We are mindful that Ms Stoney did not have Mr Williams’ account when she used the word “rape” in her email to which Mr Addae was copied. We find however that nonetheless, and regardless of the eventual outcome of the police investigation, at the material time (24 to 27 January 2023), Ms Stoney’s understanding of the facts was such that it was not inappropriate to use the words “(serious) sexual assault” or “rape” to describe the allegations that had been made. It was not a detriment to the Claimant.

[57]Was the Claimant subjected to a detriment by being suspended on 27 January 2023? We find that she was. It is objectively detrimental to be suspended from work.

[58]As we have found that the Claimant suffered a detriment, was that detriment done on the ground that the Claimant had made a protected disclosure? We find it was not, for the following reasons:a. The discussion that the Claimant had had with Mr Meehan had taken place three years earlier. Although we have found that the Claimant did not make a protected disclosure, it was entirely possible that Ms Stoney had thought she had done so; Ms Stoney agreed that as a result of the Claimant reporting the conversation about MR and/or AL to others, she had lost trust in the Claimant.

b. However, Ms Stoney said, and we accept, that she still believed she had a reasonable working relationship with the Claimant, who apparently confided in her about non-work-related matters. Ms Stoney was not subject to any formal investigation or sanction as a result of the Claimant’s meeting with Mr Meehan although she and Mr Hannon had subsequently been asked by Ms Shepherd, Assistant Director of Housing Services, about the content of their conversation about MR. We do not accept the Claimant’s submission that Ms Stoney effectively stored up a grievance against her for the next three years and then manipulated Mr Addae to suspend the Claimant (and Ms Blondell).

c. The Claimant has argued that this is exactly what Ms Stoney did, although she also said at one point that their relationship had improved before deteriorating once more. Specifically, she points to an incident in August 2020 when a resident in the Respondent’s sheltered accommodation died. She again claims in terms that Ms Stoney overreacted and distrusted her, and again that this was because of what she, the Claimant, had said to Mr Meehan.

d. We find that this allegation is similarly misplaced. Ms Stoney explained in her oral evidence that there is a warden call system called Careline which is mean to be connected to the pendant alarms worn by vulnerable residents. During one of the COVID lockdowns, the Respondent had been providing assistance to properties when Careline staff did not attend. The tenant in question activated his pendant alarm on several occasions on 20 August 2020. A Careline officer said that they had tried to call the helpline, which the Claimant was manning, but did not get a response. A Careline officer went to the resident’s property but did not see the resident. It was later discovered that the Careline officer had not looked properly and the resident was either unconscious or already deceased in their home.

e. Understandably, there was an investigation. Ms Redfern, Strategic Director of Social Care for the Respondent, required Mr Meehan and Ms Shepherd to confirm what investigations had been done within Sheltered Housing, and their outcomes. In turn, Ms Shepherd asked Ms Stoney for information and Ms Stoney asked the Claimant and Ms Needham. We find that when an Assistant Director for housing management asks for information, there can be nothing remiss with passing that request on. A person had lost their life; it was not in any way unreasonable for those in leadership positions to make sure both that any necessary lessons were learned and that the Respondent was not found liable for things that were not its fault.

f. The Claimant was a senior and experienced manager who clearly did not like to be managed by Ms Stoney, particularly where the Claimant herself considered it unnecessary. Our attention was drawn to the way in which the Claimant behaved at a tenant representative meeting (“Sheltered Housing Forum”) in November 2022, where the Claimant had by her own admission become very “passionate” about the tenant election process and was concerned that her input was not taken into account. She voted against a new document at the forum itself. The Claimant then took exception to Ms Stoney telling her subsequently that it had been disrespectful for her to have raised her voice towards Ms Stoney at the meeting and to have raised the concerns in a public forum where Councillors and senior managers were present. Again, it appears to us that Ms Stoney’s rebuke may well have been justified. We do not accept that it had any connection to what the Claimant had said to Mr Meehan thirty months or so earlier.

g. Returning to the matter before us, we accept that in fact it was not Mr Addae’s decision to suspend the Claimant but that of Mr Rogers, taken in conjunction with input from Mr Hughes, Director of Audit, Mr Deg, Assistant Director of Legal and Mr Morgan, Assistant Director of Housing Management. We find that this was because an incident had been reported to them of a “serious sexual assault” by one resident on another and a failure by the Claimant and Ms Blondell contemporaneously to bring this to the attention of the leadership team within Housing Management. None of those involved in the decision to suspend, including Mr Addae (who it will be recalled had only joined the Respondent three weeks earlier), was aware of the Claimant’s meeting three years earlier with Mr Meehan. They were all senior managers who were understandably alarmed by the revelations that this matter had been kept at such a comparatively low level and had not been escalated so that safeguarding protocols could be observed.

h. Further, it seems that the Claimant remained (and indeed still remains) completely convinced that there was no need for her to raise the matter with Ms Stoney at the time; she has repeatedly said she would do the same again. She refuses to accept management guidance that she did not do the right thing by keeping the incident between herself and Ms Blondell, and thus that she did not follow safeguarding practices. Everyone else (including the Tribunal panel) believes that the Claimant did not follow proper process. The Claimant does not. She felt confident and robust and considered that she was able to make a decision. She has entirely failed to accept that in this instance, she was in error.

i. It is also clear to the Tribunal panel that from the moment she was informed by Ms Blondell of the allegation, the Claimant put herself in the position of judge and jury as to whether Mr X had committed a crime, and that drove her decision making. Her decisions were based on her own prejudices against Ms A, as a woman who has been known to drink heavily and/or to mix alcohol with prescription medication and (the Claimant says) to make unfounded allegations against others.

j. The Claimant very quickly and firmly aligned herself with Mr X as the victim of the situation. She has not considered the safeguarding issues arising from someone who has access to the flats of multiple vulnerable tenants, in his dual capacity as an employee of a repairs contractor and a fellow-resident, being accused of a sexual assault. The panel finds it was obviously imperative that the risk to all tenants, and staff, were taken into account. The Claimant however primarily was concerned with Mr X and to a far lesser degree Ms A. When Ms A said she did not require any additional assistance, the Claimant believed nothing more had to be done. Had the Claimant taken a less partial approach to the allegation, we consider that she would have realised that these two people were not the only ones for whom the risk needed to be fully analysed at a senior level, in order for the implications at their widest to be taken into account.

k. The Claimant has also sought on several occasions to contrast how Mr X was dealt with by reference to a previous “gentleman” who was apparently convicted of a sexual offence. However, she eventually admitted that she did not know the details of the case, which preceded her joining, though she was aware that the defendant had remained in his accommodation throughout, including on his release from prison. This came to her attention because she had recently dealt with a complaint to do with him.

l. We accept Ms Stoney’s evidence that she was given a handover on this other matter when she joined the Respondent in 2015. She reread those handover notes and could see that the matter had been escalated to Legal Services to try to have his tenancy with the Council removed, but that attempt was unsuccessful. In any event, Ms Stoney confirmed that this would have been reported to all managers, including at a senior level. The Claimant’s attempts to compare the two incidents are entirely misguided. She is in effect saying that as the first tenant was ultimately able to keep his accommodation, there was no requirement on her to report Mr X’s situation to her manager as soon as she became aware of it. This is not a logical position for her to take and particularly when she agrees she does not know anything about what went on at management level with the first tenant.

m. The Claimant claimed that she could not find the Respondent’s whistleblowing and safeguarding policies on the website. We are not persuaded that she looked for them before she was suspended. We are not concerned in this decision with what took place thereafter. We find that the Claimant in all likelihood did not look for them because she did not think she needed to. She believed she had done the right thing. Senior management at the Respondent did not agree. Their approach had nothing whatsoever to do with what the Claimant told Mr Meehan in 2020.

[59]In the circumstances, we are satisfied that the Claimant’s suspension was in no way influenced by what she had said to Mr Meehan.

[60]The claim is not well-founded and fails.