Ms M Brockwell v Look Ahead Care and Support Ltd: 2216810/2023 and Others

EMPLOYMENT TRIBUNALS

Case No 2216810/2023, 2211540/2023, 2219734/2024

Between

Ms M BrockwellClaimant

Look Ahead Care and Support LtdRespondent

Before

Employment Judge G Hodgson

In person for claimant

Ms Monique Bouffé (instructed by counsel) for respondent

Date 9 June 2025

JUDGMENT

[1]The claim of whistleblowing detriment fails and is dismissed.

[2]The claim of direct disability discrimination fails and is dismissed.

[3]The claim of victimisation fails and is dismissed.

[4]The claim of failure to make reasonable adjustments fails and is dismissed.

[5]The claim of harassment fails and is dismissed. Claim two - 2211540/2023

[6]all claims of whistleblowing detriment fails and is dismissed.

[7]All claims of of victimisation fails and is dismissed. - 1 - Claim three – 2219734/2024

[8]The claim of automatic unfair dismissal contrary to section 103A Employment Rights Act 1996 fails and is dismissed.

REASONS

1.1 There are three claims to be heard together. Claim one was presented on 10 July 2023. Claim two was presented on 30 November 2023. Claim three was presented on 15 May 2024.

1.2 The first two deal with matters before the claimant’s resignation. The third concerns her resignation and her allegation of automatic unfair dismissal for whistleblowing. The Issues

2.1 The issues to be determined were clarified at the hearing and the agreed issues, as supplied to the parties and amended are set out below. Claim one – 2216810/2023 Whistleblowing detriment

2.2 The claimant alleges she made the following protected disclosure:2.2.1 On 26 June 2023 by the claimant sending a letter to the respondent’s HR department asking for reasonable adjustments.

2.2.2 The claimant identified the relevant information as being that the respondent had prohibited a service user from having her boyfriend in her bedroom.

2.2.3 It is the claimant’s case that that provision was a relevant failure as it breached “The Human Rights Act” and “The Mental Capacity Act.”

2.3 The claimant alleges that she suffered detriments because of her protected disclosure. The claimant relies on the following detriment - 2.3.1 Allegation one – by placing the claimant in the performance improvement plan in June 2023. Direct disability discrimination - 2 -

2.4 The claimant alleges that because of her protected characteristic of disability she suffered detrimental treatment.

2.5 The claimant alleges the following is an act of detrimental treatment: 2.5.1 allegation one – (above).

2.6 The claimant relies on the alleged protected disclosure set out above as being also an alleged protected act.

2.7 The claimant alleges she suffered the following detrimental treatment 2.7.1 – allegation one (see above). Disability

2.8 The claimant alleges that she is disabled. She relies on impairments of autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD).1

2.9 The claimant specifically agreed that she did not rely on Crohn’s disease as a disability for the purposes of this claim. The respondent accepts the claimant has Crohn’s disease. Failure to make reasonable adjustments

2.10 The claimant alleges that the respondent applied a provision, criterion, or practice (PCP) as follows: 2.10.1 PCP one – domestic abuse advisers are permitted to amend each other’s case notes.

2.11 The claimant alleges she suffered a substantial disadvantage in that the amendment of her notes caused her anxiety.

2.12 The claimant alleges it would have been a reasonable adjustment to prohibit other domestic abuse advisers from amending the claimant’s case notes. Harassment

2.13 The claimant alleges that she was harassed by receiving unwanted conduct which related to a disability.

2.14 The claimant relies on the following allegations of harassment:

The Issues

[1]A reference to anxiety and depression was originally included by this tribunal as it appeared to be a relevant impairment. The respondent objected to its inclusion. The claimant did not object and it was removed. - 3 - 2.15 Allegation two – on 28 June 2023 during a meeting with Ms Rebecca Swaine and Ms Dawn Spence by Ms Spence telling the claimant she could not class herself as having a disability because she was not a GP. Claim two - 2211540/2023 Whistleblowing detriment 2.16 The claimant relies on the same alleged protected disclosure as for claim one 2.17 The claimant relies on the following allegations of detrimental treatment:2.17.1 Allegation three – on or about 13 October 2023 by Ms Rebecca Swaine extending the claimant’s probation period without consultation (page 610).

2.17.2 Allegation four – on 10 November 2023 by Mr Thomas Sheridan refusing to hear the claimant’s grievance that was submitted on 7 November (page 636).

2.17.3 Allegation five – on 10 November 2023 by Mr Thomas Sheridan retracting an offer to pay the claimant on the basis of special leave, such offer having been made on 7 November 2023 (page 633).

2.17.4 Allegation six – on 10 November 2023 by reducing the claimant’s pay from the special leave rate to statutory sick pay.

2.17.5 Allegation seven – by failing to notify the claimant of the reasons why her pay was reduced to statutory sick pay.

2.17.6 Allegation eight – by the respondent [on dates and in a manner unspecified] refusing to answer the claimant’s [unspecified] emails in which the claimant asked for payment of sick pay consistent with individuals with six-months’ service.

2.17.7 Allegation nine – advertising the claimant’s role at a higher pay grade than the claimant’s role, it being an advert for a “specialist IDVA to join our domestic abuse service in Kent” (page 759).

2.17.8 Allegation ten – by the respondent, following imposition of the performance improvement plan, giving the claimant no work and in particular after 3 July 2023 removing the claimant’s client base, the allegations being against Ms Rebecca Swaine, Ms Dawn Spence, and Miss Yvette Hazelden.

2.17.9 Allegation 11 – by the respondent ignoring the claimant’s [unspecified] emails concerning the respondent’s alleged advertising of the claimant’s role - 4 - 2.18 The claimant relies on the alleged protected act identified in claim one. 2.19 In addition, the claimant relies on the submission of claim one, 2211540/23, on 10 July 2023 as being a protected act. 2.20 The claimant alleges the following acts of detrimental treatment 2.20.1 Allegations three – eleven (inclusive). Claim three – 2219734/2024 Automatic unfair dismissal – 103A Employment Rights Act 1996 2.21 The claimant alleges she was constructively dismissed on 8 March 2024, following her resignation of 8 February 2024. 2.22 It is the claimant’s case that she was entitled to resign and treat herself as dismissed because the respondent breached the term of mutual trust and confidence. 2.23 The claimant alleges that those matters which constitute alleged harassment, whistleblowing detriment, and victimisation cumulatively amounted to a breach of the term of mutual trust and confidence. 2.24 The claimant alleges the sole or principal reason for her dismissal was the alleged protected disclosure in claim one. Evidence

3.1 Both partes provided opening skeleton arguments.

3.2 We received a bundle and a supplementary bundle.

3.3 The claimant gave evidence and relied on two statements , one concerning her alleged disability and the other dealing with liability.

3.4 For the respondent we heard evidence from Ms Rebecca Swaine and Ms Dawn Spence.

3.5 Both the claimant and the respondent gave oral and written submissions.

3.6 We received various additional documents as recorded below. Concessions/Applications - 5 -

4.1 On day one, we considered the issues. The issues, as previously drafted, did not differentiate between the three claims. The issues were agreed and the parties were supplied with a copy of the agreed issues and invited to make any observations.

4.2 The claimant indicated that she may wish to apply to amend to bring further claims. In particular, she indicated she may wish to allege further protected disclosures.

4.3 The tribunal confirmed that if the claimant wished to apply to amend to include any further protected disclosures, or any further allegations of detrimental treatment, she must make an application in writing. The tribunal noted that it would expect any application to rely on further disclosures to include the following: when the disclosure took place; who was involved; what was the exact information; and why it was considered the respondent had failed or was likely to fail in the relevant obligation.

4.4 On day one, the respondent noted that the claimant had failed to comply with the order of EJ Klimov of 30 April 2025 (86/891). The claimant indicated that she had complied. The tribunal ordered her to give a full response to that letter by 08:00 on 13 May2025. The claimant did reply and stated the following:

Evidence

[1]All the job applications the Claimant made between June 2023 and March 2024.No job applications made in the above period.

[2]The first offer letter/email the Claimant received notifying her that she had been successful in her application for the role she was working in in April 2024. No longer available

[3]The Claimant’s contract of employment for the new role she was working in in April 2024. I can confirm that I am unable to share such information as I simply do not have a contract of employment for a permanent post

[4]The Claimant’s payslips for the new role she started on leaving the Respondent’s employment. I choose not to disclose 4.5 On day one, the respondent indicated that the claimant had brought a previous claim and wished to rely upon the judgment. The tribunal noted that it was unlikely that any previous claim was relevant. If the respondent wished to introduce further documents, it would have to establish why they were relevant. 4.6 The claimant filed three applications to amend after the hearing adjourned on day one. 4.7 Each of the three applications was refused. The reasons were reserved. We set out our reasons below. Amendment application one – this was expressed to be an application to amend “the claim issues on protected disclosures made on 21 June 2023.” The tribunal had issued guidance on what should be included in an application to amend to introduce new protected disclosures. The application failed to identify the information disclosed, what was said to be the disclosure, and why the claimant believed there was a relevant failure. Introducing a new protected - 6 - disclosure would introduce a claim which was out of time. There had been previous case management discussions when the claimant had an opportunity to identify any further disclosures. The claimant had applied on at least two previous occasions to amend, unsuccessfully, when any further disclosure could have been addressed. To the extent that any disclosure was identified, it was not clear it was materially different to that already in issue. There was significant hardship to the respondent in that further evidence may be needed, albeit this was unclear because the application was unclear. More importantly, there was hardship in attempting to deal with cases fundamentally unclear. The application was refused. 4.8 Amendment application two – this was said to be an application to “amend detriments under the performance improvement plan.” It appeared this sought to introduce new allegations of detrimental treatment. In particular, it was alleged that the claimant had been told not to take notice of the performance improvement plan. This was a new allegation which was presented out of time. It added little if anything to the matters already before the tribunal. As it added little, there was no material hardship to the claimant in refusing it. It potentially required further evidence from the respondent. The balance favoured refusal. 4.9 Amendment application three – this was said to be “to amend victimisation ignoring my emails.” The tribunal noted there was already a general allegation about ignoring emails, albeit some unparticularised. The claimant gave one example, being her email of 4 July 2023. The application did nothing to say in what manner they had been ignored, or by whom. Therefore it did little if anything to clarify the previous allegations. Arguably, the claimant could refer to the email of 4 July without amendment. In any event as it was put forward by way of example, it appeared to remain the claimant’s case that she was entitled to refer to any email. To the extent that it was a new allegation, it was considerably out of time. As it was arguable that it was already an issue, there was little hardship to the claimant in refusing the application. There was more hardship to the respondent in that the application remained unclear and failed to say who was alleged to have ignored it or how. It was refused. 4.10 On day two, it was noted the claimant had failed to disclose documents, including payslips. The tribunal noted that this was a breach of order and invited the claimant to consider whether she wished to comply. 4.11 On day two, the claimant confirmed that she had covertly recorded meetings. The respondent complained that only extracts of recorded meetings had been sent, it being the respondent’s case it appeared the claimant had failed to make full disclosure. During her evidence, the claimant indicated that only part of the meeting had been recorded, and full disclosure had been made. Later, the claimant indicated that her son had assisted by creating extracts from a recording, the extracts were disclosed, and the remainder of the recording deleted, from her phone. - 7 - The tribunal noted that there appeared to be confusion and invited the claimant to clarify. Her clarification stated the following: I can confirm to the best of my knowledge and belief that the recording forwarded to the respondents for the meeting on 3rd July 2023 was a part of a meeting that I had recorded. I no longer hold the actual meeting recording and confirm that this has been deleted from my phone. I can confirm to the best of my knowledge and belief that the recording forwarded to the respondents for the meeting on 28th June 2023 was a part of a meeting that I had recorded. I no longer hold the actual meeting recording and confirm that this has been deleted from my phone. 4.12 It was unclear whether the claimant maintained, in relation to either meeting, that she recorded only part of the meeting. 4.13 During the hearing on day three, the claimant confirmed that all or the majority of both meetings had been recorded. In both cases, she had, with the assistance of her son, taken extracts. Those extracts had been sent to the respondent. The claimant stated the remainder of the recordings had been deleted by her son. It is unclear when this took place. The claimant was unable to give a specific date. From the surrounding correspondence, it appeared that the deletion and extraction had taken place after the claimant had been ordered to make disclosure of the recordings. 4.14 On day two, the respondent questioned the extent of the alleged impairment as set out in the issues. The claimant conceded that she did not allege that either depression or anxiety disorder was an impairment relied on. The impairments relied on for the purpose of this claim were ASD and ADHD. 4.15 On day two, the claimant clarified that the reference to case notes in the PCP relied on was the ability to amend the DASH assessment. The claimant conceded that there was no permission to amend other case notes generally. 4.16 On day three, the claimant filed a further document in which she stated that she refused to disclose her payslips. The tribunal discussed this with the claimant and confirmed the claimant understood this was a deliberate breach of the order of EJ Klimov. 4.17 On day three, we discussed the timetable further. It was agreed that oral submissions may be given on day four and that they may be supplemented by written submissions to be submitted on day five. The claimant forwarded written submissions on day four. 4.18 On day four, the parties gave oral submissions. Both parties in addition filed written submissions. - 8 - 4.19 On day four, the claimant sent extra documents to the tribunal which included some GP notes, a document from the Department of Work and Pensions, and a further statement in the form of a letter to the tribunal. The Facts Introduction5.1 The respondent is a charity and a registered provider of specialist support and care services. The respondent employed the claimant from 3 April 2023 until her resignation of 8 February 2024, with her last day of employment being 8 March 2024. The claimant was on sickness absence from 7 November 2023, until her employment ended.

5.2 The claimant was employed as an independent domestic abuse adviser (IDVA) working in the respondent’s domestic abuse service, based in Kent. The service users, whom we will refer to as clients, are all individuals who have been subjected to domestic abuse and have been assessed as in danger of serious threat of imminent harm or death. They are vulnerable individuals; many have suffered violence in relationships; many remain under threat from their perpetrators. They may have complex needs and addiction issues. The respondent’s service offers what is described as a “trauma informed approach” and risk management is a priority.

5.3 In early 2023, the claimant was employed in the role of IDVA. As the claimant was not fully qualified, she was treated as a trainee. The claimant has not accepted she was a trainee.

5.4 The claimant completed a post job offer health questionnaire in which she confirmed she had no disability, but had been diagnosed with Crohn’s disease and screened for ADHD and ASD. She stated she did not require workplace adjustments. We should note that there has been some dispute about whether the version of the document included by the respondent was as completed by the claimant. Where there is dispute we have preferred the respondent’s evidence as relevant documentation has been produced and the claimant’s dispute of the evidence was unconvincing and unsupported by relevant documents.

5.5 The completion of the health questionnaire prompted the respondent to refer the claimant to occupational health.

5.6 The assessment took place on 10 March 2023. The claimant commenced employment with the respondent on 3 April 2023. The occupational health report made a number of recommendations. We can summarise the main points as follows: the induction should be comprehensive including training; she should be offered supportive regular one-to-one meetings; she should be permitted to attend medical appointments when needed; - 9 - and she should be allocated lighter duties when experienced severe flareups associated with Crohn’s disease. The report suggested no adjustments for ASD or ADHD or for anxiety or depression generally. Throughout her employment, the respondent accepted there may be a need to make reasonable adjustments and treat the claimant as disabled or potentially disabled as identified within the OH report. Problems with employment prior to 21 June 2023

5.7 Prior to 21 June 2023, there were no serious concerns raised about the claimant’s work. Events of 21 June 2023

5.8 Colebrook House is owned by Clarion Housing and operated externally by Look Ahead Homeless Services, being a separate autonomous organisation to the respondent, but with whom the respondent worked in partnership to house the respondent’s clients. Look Ahead Homeless Services allows occupation of its premises under some form of contract whereby it may impose conditions on the occupancy of its bedrooms and occupation generally. We do not need to set out the detail or consider whether this amounts to some form of tenancy, but we will refer to the occupancy, for the purpose of this judgment, as a tenancy.

5.9 The rules operating within the hostel, and the conditions attached to each tenancy were a matter for Look Ahead Homeless Services and were not dictated by the respondent.

5.10 One of the respondent’s clients, whom will refer to as client A, held a tenancy at Colebrook House. Colebrook House is mixed accommodation. Client A’s boyfriend, who we will refer to as resident 2 was also resident. The respondent was informed there had been an incident between client A and resident 2. Resident 2 was alleged to have demonstrated controlling and coercive behaviour towards client

a. A. This led to a sanction whereby client A remained free to associate with resident 2, but not unsupervised in either’s bedroom. There were concerns about her safety and protection.

5.11 The claimant was assigned to undertake an in-person risk assessment with client A. This is known as a DASH report (domestic, abuse stalking, and harassment). Some reports are undertaken on the telephone. This report was to be done in person.

5.12 On 21 June, Ms Rebecca Swaine, who was the claimant’s manager was on holiday. The claimant attended Colebrook House and we accept her evidence she was unable to speak to client A. The claimant later spoke to client A on the telephone and produced a DASH report. The claimant failed to ask client A if she was alone, but instead asked whether she was safe to talk. She could not be certain whether client A was alone, or whether her answers were being influenced by resident 2. She assumed that client A was not with resident 2. - 10 -

5.13 The claimant learned of the bedroom ban from the Colebrook staff before speaking to the claimant. Client A told the claimant of the bedroom ban. The claimant formed a view, without undertaking any further research or consultation, that the ban was inappropriate and was infringement of client A’s human rights and contrary to the Mental Capacity Act.

5.14 The claimant then spoke with Ms Harbour, team leader at Colebrook House, and requested that the restriction be withdrawn, as it was a deprivation of client A’s liberty. Ms Swaine reports that Ms Harbour did not agree and explained that the two individuals may interact unsupervised anywhere other than in either’s bedroom. It would appear that Ms Harbour referred to the tenancies and their relevant rules.

5.15 All new IDVA’s, including trainees, are assigned to cases with co-workers who are experienced members of staff. Unsafe decisions may compromise the safety of clients.

5.16 The claimant escalated the matter to her colleague, Ms Williams (community IDVA). Ms Williams asked another IDVA, Ms Gardiner, to pick up the case. Ms Gardiner was the assigned co-worker. Ms Williams reviewed the matter and agreed with the restriction.

5.17 Ms Gardiner met with client A and was unhappy with the claimant’s DASH report. Ms Gardiner differed in her assessment. She considered that there was a high level of risk. The DASH was updated.

5.18 DASH assessments are placed on the client’s file. The assessment is revisited periodically; it may be started again and the first assessment may be kept in its entirety. However, that is not always the case. It may be cumbersome to have multiple assessments on file, and where there is reassessment undertaken within a short timeframe, the original assessment may be overwritten and updated, effectively the original risk assessment is replaced by the updated statement. The original is not kept on file. Ultimately, the original risk assessment can be recovered, but that would require specialist IT assistance, as has happened in this case. The claimant has disputed the accuracy of the recovered content. We find on the balance of possibility that the recovered information sets out the content of the claimant’s original risk assessment accurately.

5.19 In this case, Ms Gardiner was not undertaking a routine update of a risk assessment, she was correcting what she considered to be an inadequate and inappropriate risk assessment, as completed by the claimant. She was effectively correcting the claimant’s work as the claimant’s risk assessment had failed to identify the risk adequately. She had concluded, contrary to the claimant’s view that resident 2 posed a clear risk and that his behaviour was controlling and coercive. Meeting 23 June 2023 - 11 -

5.20 On 21 June 2023, the claimant requested a meeting with Ms Swaine. Ms Swaine was on annual leave, but offered to meet either on Teams the next day or in person on 23 June. The meeting proceeded on 23 June. By that time, Ms Swaine was made aware of the events of 21 June set out above. This was an all-day meeting. The purpose was to support the claimant, to review the claimant’s cases, and carry out a three-month probation review. Ms Swaine found the claimant, initially, to be very quiet. Ms Swaine raised the events of 21 June. During the meeting the claimant stated that she loved Ms Swaine, but two other colleagues were, “fucking bitches.” The claimant denies saying this. We have noted before us the claimant has, at times, failed to give an accurate history in a number of respects. For example, she admitted to covertly recording the meeting on 28 June, but in her evidence she initially claimed that she had recorded only part of the meeting and had sent the full recording to the respondent. She later resiled from that position, and admitted she had recorded all or the majority of the meeting, but had extracted the part she wished to disclose and deleted the remainder. We do not need to set out, at this stage, each of the discrepancies in the claimant’s evidence. We have no reason to doubt Ms Swaine’s account and we prefer her evidence on the balance of probability.

5.21 The probation review led to Ms Swaine marking the claimant as unsatisfactory for her job knowledge and technical skill and competency. This led to a discussion about implementation of a performance improvement plan, and the framework for that plan was discussed.

5.22 One purpose of the probation review is to support the new employee. This involves assessing suitability and providing support to improve performance, where appropriate.

5.23 The performance improvement plan was produced. The claimant was aware of the content of the plan and there was continuing discussion. At some point the finalised plan was sent to her as evidenced by the email of 5 September from Ms Foggatt which refers to the plan. We find on the balance probability this was sent to the claimant.

5.24 On 26 June 2023, the claimant sent an email attaching a letter dated 23 June 2023. In this letter the claimant requested “reasonable adjustments in line with the Equality Act 2010.” It is this letter the claimant has relied on as being a protected disclosure we will consider it in further detail later.

5.25 Ms Swaine discussed the request for reasonable adjustments with Ms Dawn Spence, HR Business Partner, and this led to a meeting between the claimant and Ms Spence on 28 June 2023. Ms Swaine attended. Meeting 28 June 2023

5.26 This meeting took place by Teams. The claimant covertly recorded all or the majority of the meeting. There was discussion about the original OH report. The claimant stated she was awaiting referrals in relation to ASD - 12 - and ADHD. She had received no formal diagnosis. A further referral to OH was discussed. The claimant agreed to proceed. It was scheduled for 7 July 2023. The claimant ultimately declined to attend the appointment. The claimant continued to refuse to attend OH, albeit later the claimant asked about a referral. We find that no further OH report was obtained because the claimant refused to cooperate with the respondent’s request.

5.27 As a result of the meeting on 28 June, adjustments were made, as evidence by annotations on the claimants letter of 23 June2023. The respondent agreed some of the claimant’s requests. The respondent agreed to give clear targets and to management by a single manager, but had difficulty with her request to communicate only by email. The respondent confirmed that her case notes would not be amended, which is normal practice, but refused to agree that any DASH report should not be updated.

5.28 Following the meeting on 28 June 2023, the claimant’s direct responsibility of case work was removed or limited. The final decision appear to have occurred on 3 July at meeting to which the claimant was invited but did not attend.

5.29 To the extent it is necessary to make further findings on the conduct of this meeting, we will set them out when considering our conclusions. Extension of probation

5.30 The claimant’s initial probationary period was six months from 3 April 2023. It was due to end on 2 October 2023. The performance improvement plan was instigated on 23 June 2023. On 5 September 2023, the respondent invited the claimant to an informal performance review meeting. Ms Swaine was not involved as the claimant, by that time, had taken a grievance against her. The meeting was conducted by Ms Hazelden. The claimant did not attend. The claimant made it clear she would not attend in person meetings . This led to a written process, whereby the claimant was asked to assess her own performance.

5.31 On 13 October 2023, Ms Swaine confirmed extension of the claimant’s probation period until there could be a formal probation review. This was permitted under the respondent’s probation policy and her contract of employment.

5.32 The extension of the probation period had a direct contractual effect on the contractual right to receive sick pay. Employees on probation, and those with less than six months’ service, were entitled only to statutory sick pay. As the claimant’s probation was extended, she remained entitled only to statutory sick pay.

5.33 On 19 October 2023, Ms Froggatt (human resources) invited the claimant to attend a probation review meeting on 1 November 2023. The letter referred to reasonable adjustments to enable the claimant to attend. - 13 -

5.34 On 20 October 2023, the claimant commenced sickness absence. She was signed off work on Monday, 23 October 2023 (401). The probation review set for 1 November did not proceed. On 3 November the claimant was sent a probation report from Ms Swaine, to be used in the formal meeting. [452/463] The claimant’s return to work

5.35 On 7 November 2023, the claimant returned to work and submitted a further grievance against Ms Swaine (639). The claimant submitted a number of grievances. We will refer to the details of the grievance, as necessary, in our conclusions.

5.36 With the agreement of the claimant, on 7 November 2023, she commenced special leave until her upcoming formal probation meeting whereby she would be paid fully, but would have limited duties. The special leave was conditional y and could be cancelled. Initially, this was a response to the claimant indicating she could work but felt unsafe. On the same day, within a matter of hours, the claimant submitted a further email confirming she had been signed off for 4 weeks. On 10 November, she sent an email refusing to attend any probation meeting until after she had returned to work.

5.37 On or around 10 November the claimant confirmed she had been signed off as unfit for work for 4 weeks, and she sent a GP a fit note dated 9 November.

5.38 On 10 November 2023, Mr Sheridan, who was reviewing the claimant’s grievance, wrote to the claimant he informed the claimant that her special leave was ending, as she was no longer fit for work. He also informed her that he would only consider part of her grievance. He considered that a number of matters raised in her grievance related to an ongoing management process and should be considered as part of the probation meeting, and ultimately subject to appeal within that process.

5.39 The claimant remained signed off work for the rest of her employment. Further events leading up to resignation

5.40 Payroll is processed on 20th of each month. As the claimant was absent from 23r October, this led to her being accidentally overpaid. The claimant was paid full salary for the month and that was recovered from her November payment. We will consider any further relevant detail of her pay when considering the relevant allegation. Resignation - 14 -

5.41 The claimant resigned her employment on 8 February 2024. On that day, she was due to attend the probation review meeting. She did not attend that meeting. Her letter of resignation stated the following: I feel that I have no choice but to leave my role as I have not been supported by Look Ahead Care and Support LTD and feel as though I have been forced / pushed out of my role. I have recently asked to be placed in another department when I return from sick leave on 8th February 2024 but have been sent an email saying that I need to go back into the same dept. As you know from my ﬁle, I have advised you on numerous occasions that my managers have bullied, harassed, and discriminated me. Yet you seem to fail to want to support me as an employee and fail to believe what I am telling you even though you have the evidence that you need in front of you to support my statement above. This saddens me and has caused me severe anxiety, depression and panic attacks. Reasons for leaving: Breach of contract mutual trust. Harassment and victmisation over a long period of Time. Disability discrimination. No support around my whistle blowing disclosure. Being treated diﬀerently form the other team employees. Not being allowed to be supported in clinical supervision. Mental and physical health deteriorated due to no support. Deducting my wages without consultation. Advertising my role whilst I was on sick leave at a salary of over £28k when I am being paid a lot less. I have no choice but to resign and hand in one months’ notice from today so my last day of employment with you will be 8th March 2024. Please can I ask you to conﬁrm receipt of my resignation, thank you in advance.

5.42 In reaching our decision, we have had regard to all of the evidence. It is not necessary to set out the detail all of the evidence we have taken into consideration. It is necessary to set out sufficient detail to enable the parties to understand the basis on which the decision has been reached. We should make it clear that if we do not mention a specific matter raised by the parties, or addressed in the evidence, it does not mean that we have failed take it into account. To the extent that it is necessary to clarify our decisions, we will set out any further relevant evidence and facts found in our conclusions. The law

6.1 Under section 43A Employment Rights Act 1996, a worker makes a protected disclosure in certain circumstances. To be a protected - 15 - disclosure, it must be a qualifying disclosure. Qualifying disclosures are identified in section 43B Employment Rights Act 1996. Section 43B - Disclosures qualifying for protection

(1) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed. … (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).

6.2 The following questions must be addressed: first, is there a disclosure of information; second, did the claimant believe the information tended to show one of the relevant failures identified in section 43B(1)(a)-(e); third, was the belief of the employer that the disclosure tended to show a relevant failure reasonably held; and forth, was the belief that there was a public interest reasonably held. In deciding the latter point it is important to recognise that there are two key questions: first, whether the worker believed, at the time he made the disclosure it was in the public interest; and second whether that belief was reasonable. All of these elements must be satisfied if the claim is to succeed.

6.3 Disclosure of information should be given its ordinary meaning, which revolves around conveying facts. Mere allegations may not be a 'disclosure' for these purposes (see Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] IRLR 38

. It should be recognised that the distinction between allegation and information may not be clear-cut. Any argument based on this alleged distinction should be viewed with caution. It is possible an allegation may contain information, whether expressly or impliedly. (see Kilraine v Wandsworth LBC [2018] EWCA Civ1 1436). Each case will turn on its own facts. It will be necessary to consider the full context.

6.4 As regards the content of a disclosure, Sales LJ in Kilraine v LB Wandsworth

[2018] EWCA Civ 1436

held that “Section 43B(1) should not - 16 - be glossed to introduce into it a rigid dichotomy between “information” on the one hand and “allegations” on the other....” Further, he stated at para 35 - “35… In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1) … 36. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case…”

6.5 It may be possible to aggregate disclosures, but the scope is not unlimited and is a question of fact for the tribunal.

6.6 It may be necessary to indicate the legal obligation on which the claimant is relying, but there may be cases when the legal obligation is obvious to all and need not be spelled-out (see Bolton School v Evans

[2006] IRLR 500

EAT). However, where the breach is not obvious, the claimant may be called upon to identify the breach of obligation that was contemplated when the disclosure was made. It may be necessary to identify a legal obligation (even if mistaken), as opposed to a moral or lesser obligation (see Eiger Securities LLP v Korshunova

[2017] IRLR 115

, EAT.)

6.7 The reasonable belief of the worker must be considered. The test is whether the claimant reasonably believed that the information 'tended to show' that one of (a) to (f) existed; the truth of disclosure may reflect on the reasonableness of the belief.

6.8 'Reasonable belief' is to be considered by reference to the personal circumstances of the individual. It may be that an individual with specialist or professional knowledge of the matters being disclosed may not have a reasonable to belief whereas a less informed but mistaken individual might. Each case must be considered on its facts.

6.9 ‘Likely’ requires more than a possibility or risk that an employer may fail to comply with a relevant legal obligation – see Kraus v Penna plc.

2004 IRLR 260

6.10 It is not necessary for the information to be actually true (see Darlington v University of Surrey

2003 IRLR133

, EAT.

6.11 When considering the ground on which any act, or deliberate failure to act was done, it is necessary to consider the mental processes (conscious or unconscious) of the decision maker (see Harrow London Borough v Knight

2003 IRLR 140

, EAT.

6.12 It is for the employer to show the ground on which any act or deliberate failure to act was done (section 48(2) Employment Rights Act 1996). The employer must prove, on the balance of probability, that it was not on the grounds of the protected act (or disclosure) meaning that the disclosure did not materially influence, in the sense of it being more than trivial, the employer’s treatment of the whistleblower (see Fecitt v NHS Manchester

2011 EWCA civ 1190

). - 17 -

6.13 In Jesudason v Alder Hey Children’s NHS Foundation Trust

[2020] ICR 1226

, the Court of Appeal provided guidance on the concept of a ‘detriment’ in whistleblowing cases. At paragraph, the Court stated,“There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment” and approved the statement that an “unjustified sense of grievance cannot amount to a ‘detriment.’”

6.14 Direct discrimination is defined in section 13 of the Equality Act 2010. Section 13 - Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

6.15 Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

is authority for the proposition that the question of whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was. Accordingly: employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. (para 10)

6.16 Anya v University of Oxford CA

2001 IRLR 377

is authority for the proposition that we must consider whether the act complained of actually occurred (see Sedley LJ at paragraph 9). If the tribunal does not accept the there is proof on the balance of probabilities that the act complained of in fact occurred, the case will fail at that point.

6.17 Harassment is defined in section 26 of the Equality Act 2010. Section 26 - Harassment (1) A person (A) harasses another (B) if-- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for

b. B. (3) A also harasses B if-- (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. - 18 - (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account-- (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are-- age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.

6.18 In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

the EAT (Underhill P presiding) in the context of a race discrimination case, made it clear that the approach to be taken to harassment claims should be broadly the same. The EAT observed that 'harassment' is now defined in a way that focuses on three elements. First, there is the question of unwanted conduct. Second, the tribunal should consider whether the conduct has the purpose or effect of either violating the claimant's dignity or creating an adverse environment for him or her. Third, was the conduct on the prohibited grounds?

6.19 In Nazir and Aslam v Asim and Nottinghamshire Black Partnership

UKEAT/0332/09/RN

, [2010] EqLR 142, the EAT emphasised the importance of the question of whether the conduct related to one of the prohibited grounds. The EAT in Nazir found that when a tribunal is considering whether facts have been proved from which a tribunal could conclude that harassment was on a prohibited ground, it was always relevant, at the first stage, to take into account the context of the conduct which is alleged to have been perpetrated on that ground. That context may in fact point strongly towards or against a conclusion that it was related to any protected characteristic and should not be left for consideration only as part of the explanation at the second stage.

6.20 In Dhaliwal the EAT noted harassment does have its boundaries: We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase. We accept that the facts here may have been close to the borderline, as the Tribunal indeed indicated by the size of its award.

6.21 Harassment may be unlawful if the conduct had either the purpose or the effect of violating the complainant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

6.22 A claim based on 'purpose' requires an analysis of the alleged harasser's motive or intention. This may, in turn, require the Employment Tribunal to - 19 - draw inferences as to what that true motive or intent actually was: the person against whom the accusation is made is unlikely to simply admit to an unlawful purpose. In such cases, the burden of proof may shift, as it does in other areas of discrimination law.

6.23 Where the claimant simply relies on the 'effect' of the conduct in question, the perpetrator's motive or intention even if entirely innocent does not in itself afford a defence. The test in this regard has both subjective and objective elements to it. The assessment requires the tribunal to consider the effect of the conduct from the complainant's point of view: the subjective element. It must also ask, however, whether it was reasonable of the complainant to consider that conduct had that effect: the objective element. The fact that the claimant is peculiarly sensitive to the treatment does not necessarily mean that harassment will be shown to exist.

6.24 The requirement to take into account the complainant's perception in deciding whether what has taken place could reasonably be considered to have caused offence reflects guidance given by the EAT in Driskel v Peninsula Business Services Ltd

[2000] IRLR 151

, which concerned the approach to be taken by employment tribunals in determining whether alleged harassment constituted discrimination on grounds of sex. In Driskel the EAT held that although the ultimate judgment as to whether conduct amounts to unlawful harassment involves an objective assessment by the tribunal of all the facts, the claimant's subjective perception of the conduct in question must also be considered.

6.25 Victimisation is defined in section 27 of the Equality Act 2010. Section 27 - Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because-- (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act-- (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (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.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual. - 20 -

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

6.26 Prior to the Equality Act 2010 the language of victimisation referred to less favourable treatment by reason of the protected act. Under the Equality Act 2010, victimisation occurs when the claimant is subject to a detriment because the claimant has done a protected act or the respondent believes that he has done or may do the protected act.

6.27 We have to exercise some caution in considering the cases decided before the Equality Act 2010. However, those cases may still be helpful. It is not in our view necessary to consider the second question, as posed in Derbyshire below, which focuses on how others were or would be treated. It is not necessary to construct a comparator at all because one is focusing on the reason for the treatment.

6.28 When considering victimisation, it may be appropriate to consider the questions derived from Baroness Hale's analysis in Derbyshire and Others v St Helens Metropolitan Borough Council and others

2007 ICR 841

. However as noted above there is no requirement now to specifically consider the treatment of others. “37. The first question concentrates upon the effect of what the employer has done upon the alleged victim. Is it a 'detriment' or, in the terms of the Directive, 'adverse treatment'? But this has to be treatment which a reasonable employee would or might consider detrimental… Lord Hope of Craighead, observed in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

at 292, paragraph 35, 'An unjustified sense of grievance cannot amount to "detriment"'. 40. The second question focuses upon how the employer treats other people… 41. The third question focuses upon the employers' reasons for their behaviour. Why did they do it? Was it, in the terms of the Directives, a 'reaction to' the women's claims? As Lord Nicholls of Birkenhead explained in Khan's case

[2001] IRLR 830

, 833, paragraph 29, this 'does not raise a question of causation as that expression is usually understood ... The phrases "on racial grounds" and "by reason that" denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.'”

6.29 Detriment can take many forms. It could simply be general hostility. It may be dismissal or some other detriment. Omissions to act may constitute unfavourable treatment. It is, however, not enough for the employee to say he or she has suffered a disadvantage. We note an unjustified sense of grievance is not a detriment.

6.30 The need to show that any alleged detriment must be capable of being objectively regarded as such was emphasised in St Helens Metropolitan Borough Council v Derbyshire

2007 IRLR 540

. Shamoon v Chief - 21 - Constable of the Royal Ulster Constabulary

2003 IRLR 285

was cited and it was confirmed an unjustified sense of grievance cannot amount to detriment. That in our view remains good law. In Derbyshire, Lord Neuberger confirmed the detriment should be viewed from the point of view of the alleged victim. Rather than considering the ‘honest and reasonable test as suggested in Khan’ the focus should be on what constitutes a detriment. It is arguable therefore that whether an action amounts to victimisation will depend at least partly on the perception of the employee provided that perception is reasonable. It is this reasonable perception that the employer must have regard to when taking action and when considering whether that action could be construed as victimisation. Detriment exists if a reasonable worker would or might take the view that the treatment was in all the circumstances to his detriment. The detriment cannot be made out simply by an individual exhibiting mental distress, it would also have to be objectively reasonable in all the circumstances. The stress and worry induced by the employer’s honest and reasonable conduct in the course of his defence cannot, except in the most unusual circumstances, constitute a detriment. The focus should be on the question of detriment.

6.31 When the protected act and detriment have been established, the tribunal must still examine the reason for that treatment. Of course, the questions of reason and detriment are often linked. It must be shown that the unfavourable treatment of a person alleging victimisation was because of the protected act. A simple ‘but for’ test is not appropriate.

6.32 It is not necessary to show conscious motivation. However, there must be a necessary link in the mind of the discriminator between the doing of the protected act and the treatment. If the treatment was due to another reason such as absenteeism or misconduct the victimisation claim will fail. The protected act must be a reason for the treatment complained. It is a question of fact for the tribunal. Chief Constable of West Yorkshire police v Khan

2001 IRLR 830

HL is authority for the proposition that the language used in the Sex Discrimination Act 1975 is not the language of strict causation. The words by reason that suggest that what is to be considered, as Lord Scott put it, is "the real reason, the core reason, the causa causans, the motive, for the treatment complained of that must be identified." This in our view remains good law.

6.33 It is not necessary for a person claiming victimisation to show that unfavourable treatment was meted out solely by reason of his or her having done a protected act.

6.34 Lord Nicholls found in Najarajan v London Regional Transport

1999 ICR 877

, HL, that if the protected act has a significant influence on the outcome of an employer's decision, discrimination will be made out. It was clarified by Lord Justice Gibson in Court of Appeal in Igen and others v Wong and others

2005 ICR 931

that in order to be significant it does not have to be of great importance. A significant influence is an influence which is more than trivial. - 22 -

6.35 The House of Lords in Nagarajan rejected the notion that there must be a conscious motivation in order to establish victimisation claims. Victimisation may be by reason of an earlier protected act if the discriminator consciously used that act to determine or influences the treatment of the complainant. Equally the influence may be unconscious. The key question is why the complainant received the treatment.

6.36 Section 23 refers to comparators in the case of direct discrimination. Section 23 Equality Act 2010 - Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.

6.37 Section 136 Equality Act 2010 refers to the reverse burden of proof. Section 136 - Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) 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. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. (5) This section does not apply to proceedings for an offence under this Act.

(6) A reference to the court includes a reference to-- (a) an employment tribunal; (b) …

6.38 In considering the burden of proof the suggested approach to this shifting burden is set out initially in Barton v Investec Securities Ltd

[2003] IRLR 323

which was approved and slightly modified by the Court of Appeal in Igen Ltd & Others v Wong

[2005] IRLR 258

. We have particular regard to the amended guidance which is set out at the Appendix of Igen. We also have regard to the Court of Appeal decision in Madarassy v Nomura International plc

[2007] IRLR 246

. The approach in Igen has been affirmed in Hewage v Grampian Health Board

2012 UKSC 37

6.39 The law relating to reasonable adjustments is set out at section 20 of the Equality Act 2010. Section 20 - Duty to make adjustments - 23 - (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. …

6.40 In considering the reverse burden of proof, as it relates to duty to make reasonable adjustments, we have specific regard to Project Management Institute v Latif

2007 IRLR 579

we note the following: … the Claimant must not only establish that the duty has arisen, but there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred, that there is a breach of that duty. There must be evidence of some apparently reasonable adjustments which could be made.

6.41 Section 95(1)(c) of the Employment Rights Act 1996 states that there is a dismissal when the employee terminates the contract, with or without notice, in circumstances in which he or she is entitled to terminate it, with or without notice, by reason of the employer’s conduct.

6.42 The leading authority is Western Excavating ECC Ltd -v- Sharp

[1978] ICR 221

. The employer’s conduct which gives rise to constructive dismissal must involve a repudiatory breach of contract Lord Denning stated: If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself as discharged from any further performance. If he does then that terminates the contract by reason of the employer’s conduct. He is constructively dismissed.

6.43 In summary there must be established first that there was a fundamental breach on the part of the employer; second, the employer’s breach caused the employee to resign; and third, the employee did not affirm the contract as evidenced by delaying or expressly.

6.44 In so called last straw dismissals there can be a situation where individual actions by the employer, which do not in themselves constitute a breach of contract, may have the cumulative effect of undermining the implied term of mutual trust and confidence. One or more of the actions may be a fundamental breach of contract, but this is not necessary. It is the course - 24 - of conduct which constitutes the breach. The final incident itself is simply the last straw even if in itself it does not constitute a repudiatory breach. The last straw should at the least contribute, however slightly, to the breach of the implied term of trust and confidence.

6.45 The question of waiver has to be considered. A clear waiver, or simple passage of time, may demonstrate that the employee has affirmed the contract at any particular moment. However, it may be that a final incident would be sufficient to revive any previous incidents for the purpose of showing a breach of the implied term.

6.46 There is no breach of trust and confidence simply because the employee subjectively feels that such a breach has occurred no matter how genuinely this view is held. If, on an objective approach, there has been no breach then the employee's claim will fail (see Omilaju v Waltham Forest London Borough Council

[2005] EWCA Civ 1493

[2005] ICR 481

, CA). The legal test entails looking at the circumstances objectively, i.e., from the perspective of a reasonable person in the claimant’s position. (Tullett Prebon PLC v BGC Brokers LP

[2011] IRLR 420

, CA.)

6.47 The repudiatory breach or breaches need not be the sole cause of the claimant’s resignation. The question is whether the claimant resigned, at least in part, in response to that breach. (Nottinghamshire County Council v Meikle

[2004] IRLR 703

, CA; Wright v North Ayrshire Council

UKEATS/0017/13

6.48 We must consider causation, the employee must show that he has accepted the breach, the resignation must have been caused by the breach and if there is a different reason causing the employee to resign in any event irrespective of the employer’s conduct there can be no constructive dismissal.

6.49 We note the case of Bournemouth University v Buckland

2010 IRLR 445

CA. the head note reads: “(1) In constructive dismissal cases, the question of whether the employer has committed a fundamental breach of the contract of employment is not to be judged by a range of reasonable responses test. The test is objective: a breach occurs when the proscribed conduct takes place. The following stages apply to the analysis of a constructive dismissal claim: (i) in determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Malik test applied; (ii) if acceptance of that breach entitled the employee to leave, he has been constructively dismissed; (iii) it is open to the employer to show that such dismissal was for a potentially fair reason; and (iv) if he does so, it will then be for the employment tribunal to decide whether the dismissal for that reason, both substantively and procedurally, fell within the range of reasonable responses and was fair. It is nevertheless arguable that reasonableness is one of the tools in the employment tribunal's factual analysis kit for deciding whether there has - 25 - been a fundamental breach. There are likely to be cases in which it is useful. But it cannot be a legal requirement…”

6.50 In Malik v Bank of Credit and Commerce International SA

1997 IRLR 462

. The House of Lords confirmed that there is an implied duty of mutual trust and confidence as follows: the employer shall 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.

6.51 We would note that it is generally accepted that it is not necessary that the employer's actions should be calculated and likely to destroy the relationship of confidence and trust,2 either requirement is sufficient.

6.52 In Malik the House of Lords held that the trust and confidence may be undermined even if the conduct in question is not directed specifically at the employee and second, it was not necessary for the employee to be aware of the wrongdoing whilst employed. Third, the term may be broken even if subjectively the employee's trust and confidence is not undermined. Whether the term is broken must be viewed objectively. Conclusions Disability

7.1 We first consider whether the claimant is disabled.

7.2 A person is disabled for the purposes of the Equality Act 2010 where there is an impairment, physical or mental, which has a substantial and longterm adverse effect on the person’s ability to carry out normal day-to-day activities.

7.3 For there to be an impairment, it is not necessary for there to be a medical diagnosis, albeit medical evidence will frequently assist.

7.4 Whether a person is disabled is ultimately a question of fact.

7.5 The pleadings in these claims are brief and lack clarity. There have been a number of case management discussions. There is an impact statement. There is medical evidence, including an occupational health report obtained at the commencement of the claimant’s employment. The claimant has Crohn’s disease, she has suffered with anxiety (GAD) and depression for at least 20 years. In addition, the claimant alleges that she has ASD and ADHD for which she alleges she is undergoing investigation.

7.6 There is clear evidence of Crohn’s disease and GAD. The Crohn’s disease is long-standing. Crohn’s disease is a chronic inflammatory bowel 2 See, for example Baldwin v Brighton & Hove City Council

[2007] IRLR 232

- 26 - disease. It can cause a range of symptoms affecting the digestive system and overall well-being. This is lifelong. The claimant is affected to varying degree periodically. There is no doubt that this is a disability.

7.7 There is clear evidence of a history of GAD. over a period of more than 20 years. There is clear evidence of a generalised effect on day-to-day activity, including an inability to concentrate, function normally socially, or attend work. There is no doubt that this is a disability.

7.8 There is insufficient evidence to demonstrate the claimant has either ASD or ADHD. She states she is having investigations. We have seen no documents detailing any investigation. We have seen no conclusions. The claimant states she has had one conversation with an individual who reported results that were still subject to confirmation, but it was unclear who the individual was and whether she was medically qualified. It appears that the claimant may ultimately be diagnosed with ADHD. However, the claimant fails to prove, at this stage, either ASD or ADHD. Those impairments are not established we cannot find that she is disabled by reason of them.

7.9 It follows that the claimant is disabled. Reasonable adjustments

7.10 In order for duty to arise, the claimant must show a provision criterion or practice (PCP) which puts the disabled person at a substantial disadvantage in relation to a matter in comparison with persons are not disabled.

7.11 The PCP relied on, must be pleaded. In this case, it is accepted the claimant alleges the PCP was that advisers are permitted to amend each other’s case notes. Viewed broadly, this PCP fails. Advisers were not permitted to amend each other’s general case notes. However, the claimant later clarified that she limited the PCP to changes to the DASH risk assessments.

7.12 We find that the respondent did permit changes to the DASH risk assessments. On occasions, they could be overwritten, such as the occasion when the claimant’s risk assessment was inadequate and was amended. At other times, they may be redrawn and the original kept.

7.13 Did it put the claimant at a disadvantage? Here the disadvantage is that it increased her anxiety. We find that the claimant did have a significant adverse reaction to the amendment to her DASH risk assessment. This caused significant anxiety and appears to have been the trigger which led to her alleged disclosure, subsequent interactions with management, and various grievances, leading to her resignation. A person without her disability would not have experienced such anxiety, and difficulties. - 27 -

7.14 It follows the duty is engaged. It is the respondent’s case that this allegation cannot be pursued, as the claimant limited her disability to the impairments of ASD and ADHD, as recorded in the issues and noted above. The respondent relies on the case of Morgan Stanley International v Posavec EAT 0209/13. We do not find that case of particular assistance. Whether the claimant is disabled is a question of fact. We have identified the relevant impairments and the effect on dayto-day activity. We have also found that there is insufficient evidence to demonstrate that the claimant had either ASD or ADHD, but this does not mean she is not disabled. The duty arises in relation to the actual disability. The clear effect is an increase in anxiety, and ultimately the adverse effect it had on her ability to accept legitimate instructions, or engage in work.

7.15 The respondent’s argument, properly construed, is a pleading point. The argument is that the disability as pleaded is limited to the impairments of ASD and ADHD. The reasonable adjustments claim is limited to disability arising out of those impairments. As neither of those impairments is established, and no other case is pleaded, the duty does not arise, and no finding can be made against the respondent.

7.16 It is incumbent on the claimant to plead her case. However, if the pleading is found in the claim form itself, and not in the list of issues, the list of issues may be at fault.

7.17 At the commencement of the case, the tribunal identified the Crohn’s disease and GAD were part of the alleged disability. This was objected to by the respondent, and it was removed from the list of issues.

7.18 There is an argument that the claimant fails to set out adequately or at all the nature of her disability in any of the pleadings. It may be possible to argue therefore that the claim of failure to make reasonable adjustments was never pleaded adequately and should not be allowed to proceed at all. However, that has not been the respondent’s argument.

7.19 In this case, we take the view that limiting the disability, for the purposes of the reasonable adjustments claim, to the alleged impairments of ASD and ADHD, would be unduly restrictive and will not capture the essence of the claim. If a claim of failure to make reasonable adjustments is pleaded at all, it does in our view include reference to disability generally and should not be restricted to the effects of the alleged ASD or ADHD. The respondent has always understood the full extent of the claimant’s alleged impairments and disability and has had an adequate opportunity to deal with them.

7.20 It follows that we find that the duty arises.

7.21 Was the duty breached? It is the claimant’s argument that the respondent should have made an adjustment by prohibiting amendment of the DASH assessment. - 28 -

7.22 We find that is not a reasonable adjustment for the respondent to have to make. All the clients were vulnerable. They had been subjected to domestic abuse and violence. They may remain vulnerable to further abuse from their perpetrators. The purpose of the DASH assessment is to establish risk. It is an essential document. If any risk assessment was inadequate, and failed to sufficiently identify risk, the client may be exposed to violence. Therefore, the DASH report must be subject to update, review, and amendment. Where a report was inadequate, as in this case, it is appropriate that it should be corrected and a new assessment substituted. In this case, the new assessment was not attributed to the claimant, and the person who undertook the assessment was named as the assessor.

7.23 Granting the claimant’s request for adjustment would have seriously undermined the process and left client A exposed to unnecessary and inappropriate risk. The respondent did not breach the duty to make reasonable adjustments. Whistleblowing

7.24 The first question is whether the claimant made a protected disclosure?

7.25 The claimant relies on her letter of 23 June 2023, as given to the respondent on 26 June 2023. The information relied on is that client A and her boyfriend were banned from each other’s bedrooms at Colebrook House. We find that is information.

7.26 We find that the claimant did believe that there had been a failure to comply with a legal obligation. The legal obligation was not to infringe the client’s human rights by restricting her freedom to associate with her boyfriend in her bedroom. We find that the reference to the Mental Capacity Act was simply to demonstrate that the client had capacity, a matter which has not been disputed. The other matters raised in her letter, which could have been relevant to the disclosure, have not been pursued.

7.27 The next matter to consider is whether the claimant held a reasonable belief. In considering this, we take into account all relevant factors. The claimant had a professional background. She had undertaken training on the Human Rights Act and Mental Capacity Act. She had access to professionals. Before making the alleged disclosure, she discussed the matter with at least one manager at the hostel and her own manager. She had failed to make enquiries as to the nature of the tenancy, but her own letter indicated that she understood there was a need for rules. She formed her view before seeking any advice or confirmation. She understood the importance of the environment being safe for the client. She had adopted the role of advocate for the client. - 29 -

7.28 It was unreasonable for the claimant not to explore the nature of the tenancy. At all times she understood the importance of rules and the potential need for exclusion from rooms. The reality is the claimant took a view that the rule imposed was inappropriate. We do not accept that she could reasonably believe that such a rule could be an infringement of human rights. She disagreed with the constraint imposed and sought to advocate on behalf of the client. That is not the same as believing that imposing the rule was a breach of human rights.

7.29 It is clear that in her discussions she was not seeking information, clarification, or an understanding as to the interpretation of the Human Rights Act in context. It remains the respondent’s position that the Human Rights Act did not engage at all, but we do not need to resolve that point. Even if it applied, there was no reasonable basis for believing it had been breached.

7.30 We find the claimant did not reasonably believe that there had been the relevant failure. The claimant was pursuing an argument which she should have understood had no basis, having regard to her professional standing, the circumstances of the client, and reasons for having restrictions on tenancies.

7.31 It follows that there was no protected disclosure. The claims of whistleblowing detriment fail.

7.32 Allegation one would fail in any event. The claimant was placed on a performance improvement plan because her work was inadequate. The DASH risk assessment undertaken by the claimant was inadequate. We have reviewed her original answers. We have considered the corrections. The respondent had legitimate concerns about the claimant’s risk assessment and had appropriate grounds for believing that it was inadequate.

7.33 At the review meeting on 23 June, the claimant’s cases were reviewed, and various concerns were identified and raised. It was apparent that she needed further training and support. The respondent’s way of achieving this was to introduce a broad performance improvement plan which focused on allowing the claimant time to develop and provided her with training. The reason for this was the claimant’s poor performance. We accept that part of that concern arose from the way the claimant responded following the discussion with the client on 21 June and her subsequent correspondence. However, the respondent was not reacting to any alleged protected disclosure, it was a legitimate reaction to her poor performance. Harassment

7.34 We have considered allegation two. We have found that Ms Spence did not tell the claimant that she was not a GP and could not diagnose her own disability. The alleged treatment did not occur. As noted, the - 30 - claimant recorded all or the majority of the meeting on 28 June. She has elected to disclose a transcript of only part. On the balance of probability we find that she has disclosed the part which she believes most supports her claim. It does not support the claim. It illustrates a reasonable conversation whereby Ms Spence was exploring the difficulties of diagnosis in an appropriate manner. As the claimant has withheld the relevant evidence, the best evidence about context is now missing. We accept Ms Spence’s evidence. The conversation was supportive and reasonable.

7.35 It was unclear to the respondent whether the claimant had ASD or ADHD. It was reasonable to discuss the possibility and identify the need for appropriate evidence. There are no facts from which we could find it was the purpose to harass. We find it was not reasonable for it have the effect of harassment. We do accept, that the conversation related to disability.

7.36 There are allegations of victimisation in claim one and claim two.

7.37 In claim one, the protected act relied on is put broadly as the protected disclosure. We take the view that this incorporates the whole content of the letter of 23 June 2023. That letter refers to reasonable adjustments. That is doing something for the purpose of the Equality Act 2010.

7.38 The respondent has sought to argue that it is not protected because it has a defence pursuant to section 27 (3) Equality Act 2010. The respondent puts it as follows 47. The Respondent submits that the Claimant was primarily concerned with the implementation of the Performance Improvement Plan, which she was unhappy about. Her genuine concerns were in reality her performance. It is submitted that the references to reasonable adjustments was therefore made in bad faith (s27(3) EqA): the Claimant did not reasonably believe that she had been discriminated against or could be based on alleged disabilities, but was unhappy with the suggestion that she had done anything wrong in her role.

7.39 We reject this defence. To establish the defence, it is necessary for there to be false evidence or information, or a false allegation. If the evidence, information, or allegation is made in bad faith, the defence is established. We take this to be a two-part process. The first involves identifying the evidence, information, or allegation said to be false and the second is an argument about bad faith. Here the respondent elides two points and says the reference to reasonable adjustments was in bad faith because the claimant objected to the performance improvement plan. However, this does not identify the relevant evidence, information or allegation.

7.40 Here the claimant was disabled. Requesting reasonable adjustments is unlikely to be giving false evidence or information, or making false - 31 - allegations. It may be possible to argue that requesting an unnecessary reasonable adjustment could involve giving false evidence, making false allegations, or giving inaccurate information. However, if that is the respondent’s case, the respondent must identify it adequately in the response, pursue it in evidence, and set it out in submissions. The respondent fails to do this.

7.41 We find therefore that there was a protected act on 26 June 2023 by referring to the need to make reasonable adjustments.

7.42 The allegations of victimisation in claim one has been considered in the context of whistleblowing. We have identified why the performance improvement plan was instigated. The explanation is established. The treatment was not because of the protected act. The protected act, in any event, postdated the alleged treatment.

7.43 Allegation one is also put as a clam of direct discrimination. The respondent explanation is also an answer to the allegation of direct discrimination and the claim of direct discrimination fails.

7.44 In claim two, the claimant also relies on the issuing of the first claim, which is conceded to be a protected act.

7.45 For victimisation in claim two the claimant relies on allegations three – eleven and we consider those now. Allegation three – on or about 13 October 2023 by Ms Rebecca Swaine extending the claimant’s probation period without consultation.

7.46 The respondent’s probation policy did not require any consultation before extending the probation period. It is arguable there was delay in extending the probation period, but this is not significant. We accept the respondent’s evidence that the team was busy and client work was prioritised. The probation period was extended because the claimant was absent, it was necessary to have a probation review, and the claimant proved reluctant to engage, or to meet in person. It was not because of a protected act. As the reason is established, the claim fails. Allegation four – on 10 November 2023 by Mr Thomas Sheridan refusing to hear the claimant’s grievance that was submitted on 7 November.

7.47 The claimant filed a number of grievances. There was an ongoing management process which would lead to the probation review meeting. That probation review meeting would be subject to an appeal. The respondent’s grievance policy provided that where there was an ongoing management process, those matters subject to the management process would not form part of a grievance. Mr Sheridan considered that carefully in his letter dated 10 November 2023. He confirmed he would hear those parts of the grievance which were not part of the management policy, but - 32 - he would not hear those parts of the grievance that were. In that sense, the claimant establishes that he refused to hear her grievance in part. It is arguable the allegation fails because he did not refuse to hear all of the grievance.

7.48 On the assumption that the allegation is made out at all, we find that the respondent has established its reason. The reason is that those parts which were not heard as a grievance were to be heard as part of the probation review and subject to an appeal. It was not because of any protected act. This allegation fails. Allegation five – on 10 November 2023 by Mr Thomas Sheridan retracting an offer to pay the claimant on the basis of special leave, such offer having been made on 7 November 2023.

7.49 The history in relation to this is complex. The claimant returned to work, briefly, on 7 November 2023. She stated she felt unsafe and wished to be transferred. She could not be readily transferred. The respondent wished to complete the probation review. The claimant was offered special leave, whereby she would not be required to attend work, she would receive full pay, but it was subject to certain conditions, including the attendance at the probation review meeting. The condition specifically confirmed that if the meeting was delayed, special leave could be withdrawn. The claimant agreed to the conditions.

7.50 On 9 November 2023, she was signed off for a further four weeks and this was communicated to the respondent. When it became clear that the claimant would not attend the probation meeting, the special leave was withdrawn on 10 November. The claimant reverted to her normal contract which provided for statutory sick pay only.

7.51 The respondent establishes its reason for withdrawing the special leave. Part of the condition was the claimant would, effectively, remain fit for work and would attend meetings including the probation meeting. The circumstances materially changed when the claimant submitted a further fit note and started a further period of sickness absence. It is for that reason it was withdrawn. It was not because of any protected act. Allegation six – on 10 November 2023 by reducing the claimant’s pay from the special leave rate to statutory sick pay.

7.52 This arises out of the removal of special leave. The claimant received statutory sick pay because that was in compliance with her contract and the default position when the special leave was withdrawn. The respondent’s explanation is established. The treatment was not because of any protected act. Allegation seven – by failing to notify the claimant of the reasons why her pay was reduced to statutory sick pay. - 33 -

7.53 We do not accept the claimant establishes that she was not informed of the reasons why her pay was reduced. She should have been aware of the sick pay policy. The correspondence made it clear why the special leave payment was removed and that she would revert to a contractual statutory entitlement which was to statutory sick pay only.

7.54 None of this related to the protected acts. Allegation eight – by the respondent [on dates and in a manner unspecified] refusing to answer the claimant’s [unspecified] emails in which the claimant asked for payment of sick pay consistent with individuals with six-months’ service.

7.55 Part of the claimant’s argument related to the fact that she had been employed for more than six months and therefore should be entitled to contractual sick pay. However, we find that the respondent’s policies made it clear that statutory sick pay applied to those under six months’ employment and those who remained on probation. The claimant was on probation, as her probation period was extended. Her contractual provision remained statutory sick pay only.

7.56 The claimant fails to identify which emails went unanswered, or how the respondent was alleged to have refused.

7.57 The claimant gave an example of her letter of 4 July. However, that was answered on 4 July, and a clear explanation given. The claimant fails to establish the treatment occurred. The respondent’s explanation is made out. The claimant received statutory sick pay as she was not entitled to more and the respondent engaged with the claimant by email and made the position clear. Allegation nine – advertising the claimant’s role at a higher pay grade than the claimant’s role, it being an advert for a “specialist IDVA to join our domestic abuse service in Kent.”

7.58 We reviewed the relevant advert. This was for a qualified IDVA for a limited fixed term period. The claimant was not a qualified IDVA, and at all times was treated as a trainee. The claimant did raise this matter. The respondent did reply and confirmed that it was not her role.

7.59 This allegation fails because the claimant’s role was not advertised. Allegation ten – by the respondent, following imposition of the performance improvement plan, giving the claimant no work and in particular after 3 July 2023 removing the claimant’s client base, the allegations being against Ms Rebecca Swaine, Ms Dawn Spence, and Miss Yvette Hazelden. - 34 -

7.60 The claimant fails to establish she was given no work. Her work was modified. She undertook some administrative duties which were appropriate. The work that could be allocated was limited, at least in part because the claimant wished to communicate only by email, and that imposed considerable restraints. The nature of the work involved collaboration and discussion. We accept that her direct responsibility for client work was removed or reduced after 3 July 2023. However, this was part of the performance improvement plan and reflected the respondent’s view that the claimant was underperforming and needed time to develop and train.

7.61 Reduction or removal of client work may have been unwelcome to the claimant, and it may be viewed as detrimental treatment. However, the reason for it was the claimant’s performance, and not any protected act. As the reason is established, the allegation fails. Allegation 11 – by the respondent ignoring the claimant’s [unspecified] emails concerning the respondent’s alleged advertising of the claimant’s role.

7.62 The claimant fails to identify any specific email which was ignored. There is extensive correspondence about the claimant’s role generally, and about the alleged advertising of her role. It is clear that the respondent engaged fully and explained the position to the claimant. The claimant fails to establish conduct. In any event the respondent engaged reasonably and adequately with the claimant at all times and sought to answer her questions.

7.63 The reason is established. It was not because of the protected act. The allegation fails. Automatic unfair dismissal

7.64 Finally, we consider the claim of alleged automatic unfair dismissal.

7.65 If the claimant is to succeed, first there must be a dismissal; second, the principal or sole reason for the dismissal must be the protected disclosure.

7.66 It is common ground the claimant resigned. In order for there to be dismissal, she must resign in response to the respondent’s breach of contract, and at a time when the contract had not been affirmed.

7.67 The claimant alleges that the respondent was in breach of contract because the various matters relied on by way of harassment and victimisation amounted to a breach of the term of mutual trust and confidence.

7.68 It may be possible for there to be a breach of the term of mutual trust and confidence by reason of unreasonable behaviour, even if the unreasonable behaviour is not harassment or victimisation. - 35 -

7.69 We find that there was no unreasonable treatment. We have considered the various explanations for the treatment and it is clear that the respondent acted reasonably and appropriately throughout. In no sense whatsoever was the respondent fundamentally undermining the mutual trust and confidence which should exist between the parties.

7.70 It follows that at no time was the respondent in breach of contract by reason of the alleged conduct.

7.71 As the respondent was not in breach of contract, there was no breach capable of acceptance. The claim of unfair dismissal fails for that reason as there was no dismissal.

7.72 Even if there were a breach of contract, the claim cannot succeed if the reason for resignation was something other than the breach.

7.73 We do not have to finally resolve the reason for resignation. We find the claimant has deliberately withheld relevant information in relation to her job searches, applications for employment, her contract with a new employer, and her wage slips. We cannot discount the possibility that the true reason for resignation related to the obtaining of new employment, or some other reason. We find the claimant fails to prove her reason for resignation.

7.74 The claimant resigned on the day of the probation meeting. We accept the claimant was in a state of anxiety. We do not accept that the proximity of the probation meeting was irrelevant. On the balance of probability, she had it in mind, and that prompted her to resign.

7.75 Holding a probation review meeting was not blameworthy or unreasonable, in itself. Had the meeting been a culmination of ongoing unreasonable conduct, it may be that it could form part of the ongoing course of conduct constituting a breach. However, the respondent was not in breach of contract, and it was reasonable to hold a probation review meeting.

7.76 Finally, in any event there was no protected disclosure which could form the basis of a section 103A claim. It would also need to be established that the conduct, constituting the breach, was because of the protected disclosure. However, the evidence clearly demonstrates that is not the case. The respondent has established its reasons.

7.77 As the claimant has failed to prove a protected disclosure, it is not necessary for the respondent to prove a reason. However, here the respondent has proven reasons for all its conduct which are unrelated to any alleged protected disclosure.

7.78 It follows that the constructive dismissal claim fails. The respondent was not in breach. There was no breach to accept. The claimant fails to establish a protected disclosure. - 36 -

7.79 It follows that we have considered all claims arising in the three claims presented. None succeeds and all are dismissed.