Employment Judge Khalil sitting with membersIn person for claimantMr Nicholls (instructed by Counsel) for respondentDate 26 May 2023
JUDGMENT
WITH REASONS Unanimous decision: The claimant was not a disabled person under S. 6 Equality Act 2010. Reasons were given at the time and written reasons will not be provided unless they are asked for by a written request presented by any party within 14 days of the sending of this written record of the decision.
REASONS
[1]This is the Tribunal’s unanimous decision on whether the claimant was a disabled person at the material time within the meaning of S.6 Equality Act 2010 (‘EqA’).[2]The claimant represented herself. She had been supported by her union and their Solicitors (Slater and Gordon) throughout the litigation until a matter of weeks before this trial. The respondent appeared by Mr Nichols, Counsel. 1 of 8[3]The Tribunal had a bundle of documents running to 1228 pages in respect of the Full Merits Hearing.[4]In order to determine the question of disability, the Tribunal was directed to read some of the medical reports between pages 1178 and 1228, in particular pages 1183, 1185, 1207 and 1219. In addition, the Tribunal was directed to the Occupational Health reports at pages 213-214, 230-231, 232-233 and 284-285.[5]The claimant had a witness statement drafted by herself and another witness statement, un-served but drafted by her former Solicitors. Surprisingly, neither version contained any evidence on the question of disability, especially as it was an agreed issue in the case. There was some reference in the claimant’s further information document on the impact of the claimant’s carpal tunnel syndrome (‘CTS’) but it was not clear or specific, it did not refer to dates or documents in the bundle.[6]Accordingly, the claimant was ordered to serve and file a disability impact statement limited to 2/2.5 pages to deal the question of disability. The Tribunal explained and directed the claimant to the statutory definition and broke it down in to its components. The claimant was also provided with a hard copy of the Guidance to be taken into account in determining questions relating to the definition of disability.[7]The claimant, after submitting her impact statement requested to delete the first 2 paragraphs and consistent with that, said she was not asserting disability status prior to December 2015.
Findings of fact
[8]The following findings of fact were reached by the Tribunal, on a balance of probabilities, having considered all of the evidence/documentation during the hearing, including the documents referred to by the parties, and taking into account the Tribunal’s assessment of the evidence.[9]Only findings of fact relevant to the issue, and those necessary for the Tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it read and/or was taken to in the findings below but that does not mean it was not considered if it was referenced to in the witness statements/evidence or submissions.[10]The claimant was a driver whose job was to deliver on-line grocery orders to customers’ homes. The claimant was diagnosed with CTS on 16 August 2011 or 24 October 2012 (page 1178) on her right hand. 2 of 8[11]On 13 November 2015, the claimant was referred for surgery for CTS (page 1181). On 16 November 2015, Dr Chougulo, Locum Consultant Hand Surgeon, saw the claimant and confirmed that she wished to proceed with the surgery. It was noted that the claimant had used a splint and had had injections which had not helped her. It was stated that despite there being no motor weakness, the claimant did have sensory hypothesis in the median nerve distribution.[12]The surgery took place on 11 December 2015. The claimant was released on the same day as the procedure.[13]The claimant did not have any time off for her CTS by way of sickness absence at any time during her employment.[14]The claimant, in oral testimony, said that she experienced symptoms of pins and needles on a regular basis and stiffness in her fingers during winter months. Also, the claimant said the sensation of pins and needles and numbness caused her to shake her hand at night which affected her ability to sleep every night. The Tribunal had regard to the claimant’s multiple GP records for the period leading up to the operation and noted that there were no recorded or reported concerns about the claimant’s sleep/sleep deprivation or any requested or issued medication or in relation to the other symptoms. There was no other evidence on the impact on any normal day to day activities in the period from diagnosis up to the operation. The claimant’s oral testimony was rejected in respect of the frequency and degree of symptoms as it was not plausible, in the Tribunal’s view, for such daily impact as alleged without any contemporaneous evidence.[15]A management referral was made to Occupational Health (‘OH’) to ascertain the claimant’s recovery from her operation on 13 May 2016 (214).[16]Before then, the claimant confirmed that she had returned to work in February 2016 and whilst she continued to work as a driver, she was assigned an assistant to do the loading and unloading of her van.[17]In oral testimony, the claimant explained that for a period of 6 weeks or so, she struggled to recover much from her surgery. She said she struggled with tasks such as washing her hair, making tea, holding (washing) pegs in her right hand and hoovering.[18]The claimant added however, that whilst her recovery was slow, from March 2016 she was able to undertake these activities herself and improved, without any regression and estimated her post operation recovery as 70% by September 2016.[19]In testimony, the claimant said whilst she was not able to lift heavy loads, she was able to lift 5-6 KGs around this time (September 2016) rising to about 10 KGs by December 2016/January 2017. Whilst the claimant had been deployed 3 of 8 into the respondent’s clothing business in store from June 2016 onwards, the claimant was pushing for a return to her driving and delivery role. This was apparent from the Occupational Health report dated 15 September 2016 (284- 285).[20]In the September OH report, regarding the claimant’s recovery/prognosis, it was stated that the claimant was making progress and the outlook was good. Further, the claimant said there was improvement in her hand strength and grip and in performing day to day activities. The recommendation was still to avoid heavy lifting. In relation to ‘substantial’, OH advised that it would be classed as substantial, but the claimant reported an improvement in her symptoms.
Applicable Law
[21]The law on the definition of “disability” is provided by S.6 EqA 2010 and further assistance is provided in Schedule 1 of the same Act.[22]S.6(1) of the EqA defines disability as follows: “A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”[23]The above definition poses four essential questions:• Does the person have a physical or mental impairment?• Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?• Is that effect substantial?• Is that effect long-term?[24]Under paragraph 2(1) of Schedule 1 to the EqA, the effect of an impairment is long term if it:• has lasted for at least 12 months• is likely to last for at least 12 months, or• is likely to last for the rest of the life of the person affected. 25. ‘Likely’ means could well happen (C3 of the guidance (see below).[26]The term “substantial” is defined in S.212(1) EqA as meaning ‘more than minor or trivial’. 4 of 8[27]EqA Guidance on the definition of “disability” is also contained in a document called “Guidance on matters to be taken into account in determining questions relating to the definition of disability” (‘the Guidance’).[28]In relation to long-term effect, the Tribunal needed to consider the substantial adverse long-term effect at the material time. The material time is the date of the alleged discriminatory act (Cruickshank v VAW Motorcast Ltd 2002 ICR 729 EAT.)[29]Under paragraph 5 of Schedule 1 EqA, an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if: (a)measures are being taken to treat or correct it, and (b)but for that, it would be likely to have that effect.[30]However, in Woodrup v London Borough of Southwark 2003 IRLR 111, the Court of Appeal stated: “In any deduced effects of the present sort, the claimant should be required to prove his or her alleged disability with some particularity. Ordinarily one would expect clear medical evidence to be necessary, those seeking to invoke the peculiarly benign doctrine [under paragraph 6] should not readily expect to be indulged by the Tribunal of fact… in the present case, no medical evidence whatsoever was called to support the applicant’s case under paragraph 6. Instead, the applicant’s case was confined to what the applicant herself surmised would have happened. The EAT were right to conclude that the medical documents which the applicant produced in evidence, coupled with her own evidence, were bound to have been regarded as insufficient to establish her case fell within paragraph 6 (1). “ Conclusions and analysis[31]The Tribunal was asked to focus on the period from the claimant’s operation on 11 December 2015 to May 2017 in assessing whether or not the claimant was a disabled person within the meaning of S.6. This was made express by the claimant when she deleted paragraphs 1 and 2 of her disability impact statement. She also confirmed this in oral testimony, under cross examination.[32]The claimant also confirmed in response to Tribunal questions that the material date for her reasonable adjustments claim in relation to the alleged requirement for loading her van was a period before February 2016, but she was unable to be more specific. 5 of 8[33]In relation to the alleged requirement to work without a proper workplace assessment, the claimant said this was an on-going failure or state of affairs from 2009 onwards, which practically ceased when the claimant was assigned an assistant to load and unload her van in February 2016.[34]The unfavourable treatment/detriment allegations (in connection with discrimination arising from disability, harassment and victimisation), were with two exceptions for the period September 2017 to September 2018. The exceptions were in relation to being placed on the customer service desk for 6 hours without relief (said to have occurred in 2014) and being moved to clothing in June 2016.[35]The Tribunal resolved that essentially it was necessary to determine first, if the claimant had a long-term impairment, in this case, one which had lasted for 12 months or more in the period leading up to the claimant’s operation, or, was likely to last for 12 months at that time.[36]In this regard, the Tribunal observed that the claimant had been at work, without interruption leading up to the operation. She had been carrying out her work, which included the full range of duties without restriction. There had been no intimation of a lighter or lesser load. The claimant had no time off or sickness. The claimant did give evidence of pins and needles, some sensation and impact on her sleep. However, all of those intimations and the regularity of occurrence, were unsupported by any medical evidence. She had seen her GP on multiple occasions between 2011 and 2015. The Tribunal also concluded that the claimant’s referral for CTS surgery would likely have made some reference to the impact on the claimant in this regard or her normal day to day activities (page 1204) if they were prevalent. It did not. The claimant had produced no less than 3 statements, one in advance of the Hearing, one from her former Solicitors and one specifically as guided and instructed by the Tribunal (disability impact statement) and in none of those was there any evidence in relation to the substantial and long-term impact on the claimant’s ability to carry out normal day to day activities. This was quite surprising.[37]Second, the Tribunal looked at the post-operation period. It is right that from February 2016, the claimant was doing lighter duties as the loading and unloading was being done for her. The claimant was aided until June 2016 when she was moved to the clothing department. During that period the claimant gave evidence that after a 6-week post operation recovery period, by about March 2016, she could perform activities such as hoovering, washing her hair, making a cup of tea and carrying clothing pegs in her hand. Even though her ‘speed’ of activity was slower, she improved without regression thereafter. The Tribunal also took notice that following her return to work, the claimant was bothered about and had asked for her job description as she did not believe loading the van was a part of her role. The OH report of 15 September 2016 supported her improvement and progress. By the autumn she was able to lifts 6 of 8 loads of 5-6 KGS and by the end of the year 10 KGS. The claimant said she was about 70% improved by September 2016.[38]The Tribunal had regard to the example in the appendix in the guidance about difficulty picking up and carrying objects of moderate weight such as a bag of shopping or a small piece of luggage with one hand, but concluded that this was of little practical assistance where there was no evidence of any one handed lifting difficulties being experienced by the claimant. Furthermore, the Tribunal was not satisfied that the claimant’s lifting difficulty was substantial and/or was likely to last for 12 months or more from the operation or had lasted for 12 months or more before then or from then.[39]The Tribunal also had regard to B16 of the guidance. The Tribunal concluded that the effect of the operation was not to permanently improve or cure the claimant’s CTS. In so far as it was corrective, pursuant to Woodrup, the Tribunal had no evidence before it at all as to what the effect on the claimant would be without the operation or indeed physiotherapy. There was no evidence of the clinical necessity or the alternative impact of not having the surgery. It was, in the Tribunal’s conclusion, an elective procedure and an informed decision.[40]It was agreed before the Tribunal that the claimant carried the burden of proof (Mutombo Mpania v Angard Staffing Solutions Ltd 2018 UK EATS /002/18/JW). The Tribunal concluded, in pursuance of the foregoing, that the claimant had not discharged this in relation to the material date or in relation to the asserted period of December 2015 to May 2017 or in relation to the period September 2017 to September 2018 (based on a past disability or otherwise) which was the entire period of the other 9 detriments as, the evidence of substantial and long term adverse impact on normal day to day activities was simply not present or was inadequate. At its highest, it represented a period of 3 months and there was no way of the Tribunal assessing the impact on the claimant without the operation. The claimant made reference to dropping items on occasions when she was in the clothing department, but this was not considered to be substantial, rather anecdotal. This does not mean the claimant does not have the impairment of CTS, but simply that she was unable to discharge the burden of proof evidentially on her to come within S.6 of the EqA, despite multiple opportunities to be able to do so. 7 of 8[41]At the investigation meeting the claimant denied referring using the phrase ‘shirt lifter’ and denied its relevance as the it related to someone who was no longer employed; she denied referring to Mr Addison as a ‘cunt’; she denied she had said the driver in the video ‘could have spoken English’ – instead she said she had said he could have spoken ‘better English’. In response to a question why two employees would say that she had said it in a racist way and would feel that, she said she had no idea why they would say or feel this. The claimant denied she had been disruptive at the training meeting and in relation to the incident/altercation with Mr Steenhoven, she said he had an issue with her because he has to load her vehicle. She also denied threatening Mr Steenhoven, saying it was his word against hers. The claimant queried whether she needed to raise a grievance against Helen Knight. It was explained that the complaints had been raised by other employees (pages 873-878).[42]The claimant was accompanied at the meeting by Mr Bailey, her union representative. Both signed the handwritten notes as being accurate.[43]Ms Purvis considered the claimant had a disciplinary case to answer and the claimant was invited to a disciplinary hearing by a letter dated 11 July 2018. The claimant was provided with the grievance statements and investigation notes in advance and was forewarned that dismissal was a possible outcome (page 905).[44]Mr Germain was appointed to chair the disciplinary hearing. He was the Store Manager at the Hove Store who had never worked at the Horsham Store. 10 of 33[45]The disciplinary hearing took place on 23 July 2018. The claimant was accompanied by Mr Bailey. The typed notes were at pages 950-959. The notes had been signed by the claimant and her representative.[46]At the hearing, the claimant maintained that she had not used the expression shirt lifter and as it was not relevant as it related to an exemployee. She denied using the word cunt towards Mr Addison and said Mr Tester was lying about what she had said and that he had been prompted to do so by Mr Addison. The claimant said it was untrue that she had threatened Mr Steenhoven. She said he had said to the claimant she could not do her job, that he apologised to her about a previous incident, that he wanted to do her hours, being female had contributed to this and that Mr Addison had coerced Mr Steenhoven too. In relation to the alleged racist comment about the person speaking on the training video, the claimant said Mr O’Donnell and Mr Steenhoven had both been coerced by Mr Addison. In relation to being disruptive at the meeting, the claimant said she had been lied to about the start time (by Mr Addison) and that Mr Addison had also coerced Mr Bolton (the trainer) into submitting his email which complained about the claimant’s conduct at the meeting. Mr bailey summarising for the claimant also stated that Mr O’Donnell and Mr Steenhoven’s statements were not signed, that the ‘shirt lifter’ comment was 6 months ago and Mr Bolton had emailed his concerns 2 weeks after the training. The claimant also added that this all stemmed from the claimant putting in a complaint against another manager in 2012, from which time, Mr Addison had wanted her out.[47]At the end of the meeting, Mr Germain reserved his decision, pending further investigation. This further investigation was undertaken by Mr Paul Rayner, Fresh Lead Manager.[48]The following people were spoken to: Gary Tester, Michelle Whelan, Gary (anonymous), Neil Condre, Kevin Addison and Chloe Spriggs.[49]Ms Whelan said that at the training meeting, the claimant was embarrassing, and unprofessional, raised her voice and she had spoken over the trainer. She described the claimant as aggressive and intimidating (pages 1028-1029).[50]Mr Tester said that Mr Addison had been ‘taken back’ when he had confirmed what the claimant had referred to him as (cunt). He also said 11 of 33 the claimant was disruptive and asked inappropriate questions at the training session (pages 1022-1023). 51. ‘Chris’ (anonymous) said the claimant had said to Mr Steenhoven, during an altercation with him, “I will fucking have him, I will kill him”. He said the claimant was aggressive and intimidating (page 1033).[52]Mr Condre said the claimant was disruptive at the training meeting, he had heard she might have said unacceptable comments, though he did not hear these himself and the claimant had come across as aggressive and she raised her voice (page 1037).[53]Mr Addison confirmed his conversation with Mr Tester when he had been told that the claimant had referred to him as a cunt. He confirmed he had asked Mr Tester to put in a statement after he had been told what the claimant had said. He said he was shocked someone would call him that. In relation to the training meeting, he said the claimant had been aggressive, intimidating and had raised her voice. He did not refer to any other specific (unacceptable) comments which he had heard the claimant make (pages 1041-1042).[54]Ms Spriggs said the claimant was disruptive and argumentative at the training meeting and had spoken in a tone that would not be used to talk to someone, that she had raised her voice and had also tried to gather support for a petition against Mr Addison about whether he had made any comments. Ms Spriggs said she refused to sign it 3 or 4 times (pages 1048-1049).[55]Following this investigation, a reconvened disciplinary hearing took place on 30 July 2018. The minutes were at pages 1054-1058 of the bundle. Mr Bailey accompanied the claimant. He said he was disappointed that the additional investigations had been of managers present at the training session, further that Mr Raynor had asked closed and leading questions. Following an adjournment, Mr Germain concluded that the claimant’s use of the phrase ‘shirt lifter’ was inconclusive. The Tribunal found this was because of the passage of time since the comment being reported. Mr Germain concluded the claimant had been disruptive at the training session. Mr Germain concluded that the claimant had gestured towards her manager, Mr Addison, referring to him as a cunt. Mr Germain concluded the comment ‘He could have 12 of 33 spoken English’ was made by the claimant which had been heard by 2 employees who were both sufficiently offended such that they had raised a grievance about the comment being racist. Mr Germain also concluded that the claimant did say to Mr Steenhoven that she was going to ‘have him’ in her altercation with him. He thus concluded the claimant should be dismissed for gross misconduct.[56]In coming to his decision, Mr Germain said (in his witness statement) he had regard to the respondent’s disciplinary policy (page 135) which includes:• Harmful or offensive contact with another person or threatening to harm someone• An act of harassment or bullying• Serious verbal abuse of colleagues or managers• A serious breach of acceptable behaviour[57]Mr Germain also had regard to the claimant’s length of service but which he said did not mitigate against the claimant’s behaviour and conduct. He said he also considered alternatives to dismissal but owing to a complete lack of remorse and a lack of self-awareness, he believed that her unacceptable behaviour was likely to be repeated if she remained employed.[58]Mr Germain also factored in that this was not a one-off incident, but multiple incidents with multiple complainants with a real risk of her behaviour continuing as the claimant was not prepared to make any concessions.[59]This evidence was unchallenged and was accepted by the Tribunal.[60]The dismissal outcome letter was at page 1070. The claimant was given a right of appeal. The claimant exercised her right of appeal by a letter dated 6 August 2018 (page 1074). The claimant alleged that Mer Germain had been one-sided and biased, that staff had been prompted to put in false statements. She said she had no choice but to take the matter to a Tribunal.[61]The appeal was heard by Mr Finch, the Gillingham Store Manager. It took place on 25 September 2018, having been rearranged to 13 of 33 accommodate the claimant’s accompanying companion and to ensure the claimant had received the appeal pack. The claimant was accompanied by her union representative, Mr Kieron Murphy.[62]At the hearing the claimant confirmed her grounds of appeal (see above) adding that statements against her were unsigned, falsified and that this was a witch hunt by Mr Addison.[63]The hearing was adjourned by Mr Finch for a brief period because of the claimant’s behaviour in interrupting Mr Finch. This was recorded in the minutes. These minutes were signed by both the claimant and her representative. In oral testimony, the claimant said she was being told to ‘shut up’ repeatedly by Mr Finch at this meeting. In fact she said this had happened repeatedly at the dismissal meeting too. Upon being questioned by the Tribunal, the claimant said this happened every 5 minutes. This had not been raised at the time or prior to this being said under cross examination. Nothing had been recorded in both sets of minutes signed by both the claimant and her union representatives. The Tribunal found this testimony remarkable and untrue.[64]Following the adjournment, Mr Finch summarised his understanding of the key assertions at the appeal hearing being that Mr Germain had fumbled through the meeting, that Mr Germain had not interviewed the other individuals himself, fellow drivers had not been interviewed, the colleagues were prompted, no probing questions were asked relating to Mr Addison and that Mr Germain didn’t delve enough into the culture. These were agreed.[65]Mr Finch concluded that the use of post it notes was a matter of style, whilst there was confusion over the dates, the incidents did happen, he acknowledged that some statements were unsigned, but he was satisfied they were written by their authors who had also been interviewed. Mr Finch was also satisfied that enough people were interviewed to get a fair representation (about the training meeting). He acknowledged however that the questions could have been more consistent. Mr Finch also confirmed he was focused on the evidence before Mr Germain and whether he had a reasonable belief for the 3 incidents for which the claimant had been dismissed. In relation to the racial comment and the two corroborating statements, Mr Finch rejected that because they had discussed the matter between themselves that this was evidence of lying 14 of 33 (as alleged by the claimant). Mr Finch was also satisfied that the comment was not said loudly such that others might have heard it. Mr Finch also confirmed that the claimant had not been dismissed for a stand-alone allegation of disruptive behaviour. He also explained that he understood that Mr Germain had not upheld the allegation about the shirt lifter comment because of the six-month passage of time. Mr Finch noted that the allegations for which the claimant had been dismissed were all against statements from 2 people. Mr Finch accepted that some of the questioning could have been different.[66]Following an adjournment, Mr Finch upheld the decision to dismiss the claimant. Whilst he accepted there were some procedural issues, there was no evidence presented that the incidents did not happen. He concluded that Mr Germain had shown consideration in rejecting one allegation and not using another allegation, before concluding that 3 incidents did happen.[67]The appeal outcome was confirmed in a letter dated 26 September 2018 (page 1130).[68]The claimant had, on 12 July 2018, put in grievances against Ms Purvis, Ms Knight, Mr O’Donnell, Mr Steenhoven, Mr Gary Tester and Mr Bolton and on 16 July 2018 against Mr Addison (pages 906-912).[69]Ms Mclean, Colleague Relation Partner was appointed to consider these grievances.[70]The grievance against Mr Addison did not proceed as it was decided that the grievance was similar to that which had been previously raised and rejected.[71]The grievances against Mr O’Donnell, Mr Steenhoven, Mr Tester and Mr Bolton also did not proceed as these were considered to be part of the disciplinary investigation officer’s process.[72]The grievances against Ms Knight and Ms Purvis - that Ms Knight had allowed her management team to accuse the claimant of things and to influence her colleagues in a witch hunt and that Ms Purvis had been unprofessional, influenced and not impartial - were considered and rejected. Ms Mclean interviewed the claimant on 22 July 2018 and Ms 15 of 33 Knight and Ms Purvis on 24 July 2018. The grievance outcome was at pages 1011 to 1013. Applicable Law Unfair Dismissal – S.98 (2) & (4) Employment Rights Act 1996 (‘ERA’)[73]The respondent relied on S.98 (2) (b) (conduct) in relation to its potentially fair reason for the claimant’s dismissal. The burden to show the reason rested with the respondent.[74]Subject to showing a reason, the Tribunal needed to consider whether the dismissal was fair or unfair, having regard to the reason shown by the respondent, whether the respondent acted reasonably or unreasonably in treating it as a sufficient reason for dismissal which question shall be determined in accordance with equity and the substantial merits of the case – S.98 (4) ERA. This is a neutral burden.[75]The test in a conduct case is as set out in the well-known case of BHS v Burchell 1978 IRLR 379:• that the respondent genuinely believed in the claimant’s misconduct• that belief was based on reasonable grounds• that there was as much investigation as was reasonable.[76]Further, the Tribunal needed to be satisfied that the dismissal was within the range of reasonable responses. This does not entitle a Tribunal to substitute its view for that of the employer. The range of reasonable responses applies both to the substantive decision to dismiss and to the procedure Sainsburys Supermarkets Ltd v Hitt EWCA Civ 1588. Protected Disclosure claims – S,43B/47B & S.103A ERA[77]Under S.103A ERA, an employee shall be regarded as unfairly dismissed if the reason, or if more than one, the principal reason, for the dismissal is that the employee made a protected disclosure. 16 of 33[78]By virtue of S.47B ERA, a worker has the right not be subjected to a detriment by any act or any deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure. In NHS Manchester v Fecitt and others 2012 IRLR 64, it was stated that the test is whether the protected disclosure “materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistle-blower”.[79]A protected disclosure qualifying for protection is one made in accordance with S.43A (which refers to S.43 C to S.43H about the conveyance of a qualifying disclosure) and S.43B (which defines a qualifying disclosure).[80]S.43B ERA says: Disclosures qualifying for protection: 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, is being or is likely to be deliberately concealed.[81]S.43B ERA requires consideration of whether the claimant had a reasonable belief that the information disclosed is made in the public interest and tends to show one of the six matters listed above. The test is twofold: the subjective element is that the worker must believe that the information disclosed tends to show one of the six matters listed. The 17 of 33 objective element is that that belief must be reasonable. Chestertons Global Ltd v Nurmohammed 2018 ICR 731 CA and Babula v Waltham Forest College 2007 EWCA Civ 174.[82]Pursuant to S.48 (2) ERA, the burden of proof in relation to the reason for the alleged detrimental treatment rests on the respondent. However, this is once a protected disclosure has been established and that the respondent has subjected the claimant to a detriment.[83]In relation to S.103A ERA, the burden of proof in relation to dismissal was addressed in Kuzel v Roche Products Ltd [2008] EWCA Civ 380, CA: “57…when an employee positively asserts that there was a different and inadmissible reason for his dismissal, he must produce some evidence supporting the positive case, such as making protected disclosures. This does not mean, however, that, in order to succeed in an unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for that different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason.58. Having heard the evidence of both sides relating to the reason for dismissal it will then be for the ET to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or by reasonable inferences from primary facts established by the evidence or not contested in the evidence.59. The ET must then decide what was the reason or principal reason for the dismissal of the claimant on the basis that it was for the employer to show what the reason was. If the employer does not show to the satisfaction of the ET that the reason was what he asserted it was, it is open to the ET to find that the reason was what the employee asserted it was. But it is not correct to say, either as a matter of law or logic, that the ET must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee. That may often be the outcome in practice, but it is not necessarily so. 18 of 3360. As it is a matter of fact, the identification of the reason or principal reason turns on direct evidence and permissible inferences from it. It may be open to the tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for dismissal was not that advanced by either side. In brief, an employer may fail in its case of fair dismissal for an admissible reason, but that does not mean that the employer fails in disputing the case advanced by the employee on the basis of an automatically unfair dismissal on the basis of a different reason.”[84]There must be a disclosure of information. In Cavendish Munro Professional Risks Management Ltd v Geduld UKEAT/ 0195/09, the EAT held that to be protected a disclosure must involve information, and not simply voice a concern or raise an allegation. It suggested that: “The ordinary meaning of giving “information” is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating “information” would be “The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around”. Contrasted with that would be a statement that “You are not complying with Health and Safety requirements”. In our view this would be an allegation not information.” (Paragraph 24.)[85]In Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, the Court of Appeal rejected the suggestion that, in Cavendish, the EAT had identified the categories of “information” and “allegation” as mutually exclusive. The Court held that the wording of the legislation should not be glossed to introduce a rigid dichotomy between “information” on the one hand and “allegations” on the other. Sometimes a statement that could be characterised as an allegation would also constitute information and amount to a qualifying disclosure. However, not every statement involving an allegation would do so. It would depend on whether it had sufficient factual content and was sufficiently specific.[86]In Norbrook Laboratories (GB) Limited v Shaw [2014] ALL ER (D) 139 it was said that linked complaints taken together could amount to a qualifying disclosure. 19 of 33[87]In Williams v Michelle Brown Am, UKEAT/0044/19/OO, HHJ Auerbach said: “9. It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in subparas (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held. 10. Unless all five conditions are satisfied there will be not be a qualifying disclosure. In a given case any one or more of them may be in dispute, but in every case, it is a good idea for the Tribunal to work through all five. That is for two reasons. First, it will identify to the reader unambiguously which, if any, of the five conditions are accepted as having been fulfilled in the given case, and which of them are in dispute. Secondly, it may assist the Tribunal to ensure, and to demonstrate, that it has not confused or elided any of the elements, by addressing each in turn, setting out in turn out its reasoning and conclusions in relation to those which are in dispute.” Conclusions and analysis The following conclusions and analysis are based on the findings which have been reached above by the Tribunal and have been determined issue by issue. Those findings will not in every conclusion below be cross-referenced unless the Tribunal considered it necessary to do so for emphasis or otherwise. Did the claimant make a Protected Disclosure/do a Protected Act? Protected Disclosure 1/Protected Act 1[88]The Tribunal rejected that the claimant made a protected disclosure or did a protected act in an oral conversation between the claimant and Mr Laflain in March 2016. The Tribunal concluded that there was no evidence before it at all about the fact or content of any such conversation, specifically or generally. No evidence was offered by the 20 of 33 claimant in her witness statement or in oral testimony or by reference to any written documentation, contemporaneous or otherwise. The Tribunal concluded that, essentially, this assertion had been abandoned. Protected Disclosure 2/Protected Act 2[89]In the claimant’s first claim form she had not ticked the box that her claim included a claim about protected disclosures (10.1). That would not of course be determinative of whether or not a claim form raises such a claim, particularly as the claimant was a litigant in person, but it has some relevance. Moreover however, there was no or inadequate detail/narrative about the nature or particulars of her claim. In Box 9 the claimant had referred to continuing bullying over 6 years and noncompliance of company policies and health and safety issues. That was the entire extent of her claim. There was no information/detail about any disclosure of information about any alleged wrong-doing or when or to whom. It was appropriate to apply Cavendish Munro Professional Risk Management Ltd v Geduld 2010 ICR 325 – merely making an allegation or stating a position will not amount to disclosure of facts. This was not a case whereby a high threshold was being applied to what had been disclosed. The claim form was wholly unspecific. This was a bare allegation devoid of any factual content. In Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, the Court of Appeal said for a statement or disclosure to be a qualifying disclosure:“ 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 [43] (1).”[90]There was nothing in the claim form by reference to the Equality Act or any protected characteristic under any section of S.27 Equality Act 2010. The disability discrimination box was not ticked or that the claimant had a disability. The claimant did not do a protected act. Protected Disclosure 3/Protected Act 3[91]In relation to the claimant’s appeal against the decision not to uphold her grievance against Mr Collins on 14 March 2018, the claimant did assert in point numbered 9, that rules are being broken with the health and safety of dot com staff. The claimant also referenced having her van 21 of 33 loaded (which she had said Mr Collins had referred to) ‘as all vans should be loaded to health and safety rules’. This was in point 4 of her letter. Read together this was sufficient to amount to a disclosure of information. In analysing whether the claimant had a reasonable belief that this tended to show a breach of a legal obligation, the Tribunal rejected that the claimant’s belief was a genuinely held belief and/or alternatively, was objectively reasonable. This was because in March 2017, one year earlier, in a first stage grievance outcome, the claimant had already been informed: “There is evidence that drivers have been spoken to ask their preference or if they would like to load their own vans. This is something agreed locally and appears to work for most of them. There is no cost saving to the store by not having them load vans, as driver hours are more expensive and the total number of hours required would be the same. Anyone who wants their van loaded can have this and this should be arranged so this is always met.” (the Tribunal’s emphasis)[92]This outcome followed an investigation at the time. This outcome, was upheld on appeal and there was no interference with the above finding. In fact, a letter was referred to at appeal which was about/for drivers confirming they were happy to load their own vehicles – confirming the option/choice available.[93]In addition, the claimant’s reasonable belief in this asserted and pleaded breach of a legal obligation was fundamentally undermined by the claimant’s oral testimony during which she said her whistle blowing concerns were “100%” about alleged drug taking. She reaffirmed this when asked the question again and said categorically her case was absolutely about alleged drug taking (indeed both of her letters to Ms Ryall referred to drug-taking). However, this was not her pleaded case and neither had the claimant applied to amend her claim.[94]There was nothing in this letter by reference to the Equality Act or any protected characteristic under any section of S.27 Equality Act 2010. The claimant did not do a protected act. Protected Disclosure 4/Protected Act 4 22 of 33[95]In relation to the claimant’s letter to Ms Ryall dated 26 April 2018, this was a request for health and safety documents on risk assessments, control measures, manual handling and bronze training. There was also a reference to data protection and the use of drugs in the workplace – neither of these matters were part of the claimant’s pleaded case. In paragraph 33 of the claimant’s amended particulars of claim (page 60), the claimant referred to writing to Ms Ryall to see if the driver’s role had changed to stipulate that drivers were supposed to load their vans.[96]A request for these documents was not a disclosure of information. It was a request for documents. If the Tribunal was wrong about that, for reasons given in paragraphs 91 to 93 above, the Tribunal concluded that the claimant’s pleaded case was not a qualifying disclosure.[97]There was nothing in this letter by reference to the Equality Act or any protected characteristic under any section of S.27 Equality Act 2010. The claimant did not do a protected act. Protected Disclosure 5/Protected Act 5[98]In relation to the claimant’s letter to Ms Ryall of 3 June 2018, in paragraph 36 of the claimant’s further and better particulars (page 60), the claimant had set out her pleaded protected disclosure/protected act. She said the workplace injuries suffered by herself and others should have been reported to the local authorities but had not. Further, she said she had reiterated the scope of drivers’ roles and the lack of training of managers.[99]The claimant provided no information about which injuries of others had not been reported, which individuals these related to or any applicable dates, why/how these had been caused by their work or the reason why the claimant was saying these had not been reported. There was no evidence before the Tribunal about an accident report book or any evidence that this had been requested or that any such book was unreliable. The only reference was to the claimant’s carpal tunnel syndrome, but no reference to when this had not been reported, by whom or why/how this had been caused by work. 23 of 33[100]The Tribunal concluded there was insufficient specificity and insufficient factual content for this to amount to a disclosure of information.[101]Similarly, there was insufficient specificity and insufficient factual content in relation to any alleged lack of training – which training, when and who was responsible.[102]Additionally, or alternatively, for reasons given in paragraph 93, the Tribunal concluded the claimant’s pleaded case in relation to the foregoing, was not a qualifying disclosure.[103]In relation to the scope of drivers’ roles, for reasons given in paragraphs 91 -93 above, the Tribunal concluded the claimant’s pleaded case was not a qualifying disclosure.[104]There was nothing in this letter by reference to the Equality Act or any protected characteristic under any section of S.27 Equality Act 2010. Whilst there was reference to carpal tunnel syndrome, this was in the context of a alleged (albeit unparticularised) failure to report this (and alleged unspecified injuries of other drivers) to the Local authority, not as an allegation of less favourable or unfavourable treatment. The claimant did not do a protected act. Protected Disclosure 6/Protected Act 6[105]In relation to the presentation of the claimant’s second clam form on 3 August 2018, the Tribunal noted that the claimant had ticked a claim for Unfair Dismissal (she had by then been dismissed). In the narrative in box beneath8.1 she had referred to defamation, slander, false statements, causing harm, being insulting and offensive, biased and bullying, harassment and intimidation. She had referred to harassment and intimidation in box8.2 too as well as not following procedures. She added work caused injury before adding that management had been moved to hide this issue. There followed a date reference period from December 2012 and a list of 13 names. 24 of 33[106]The disability discrimination box was not ticked or that the claimant had a disability. Box 10.1 was ticked, that her claim included a claim about protected disclosures.[107]There were no details about which procedures had not been followed or in what way, when or by whom. There were no details about how, why or when work had caused her injury.[108]As such, The Tribunal concluded there was insufficient specificity and insufficient factual content for this to amount to a disclosure of information.[109]There was nothing in the claim form by reference to the Equality Act or any protected characteristic under any section of S.27 Equality Act 2010. The claimant did not do a protected act.[110]The Tribunal considered, although it was not argued or asserted, whether any of the alleged protected disclosures, if taken together in any combination, could amount to a protected disclosure in a ‘composite’ way. However, the Tribunal concluded that this was not made out. Alleged protected disclosure 1 failed because, evidentially, there was no assertion before the Tribunal. Taking protected disclosures 2 to 6 together (in any combination) did not make good a protected disclosure for reasons given in paragraphs 91-93 and paragraphs 99 to 101.[111]In the light of the foregoing conclusions, it was not necessary for the Tribunal to consider whether or not the claimant had a reasonable belief in the public interest of the disclosures. Detriments[112]Being moved to the clothing department in July 2016 – The claimant asserted this done on the ground that the claimant had done protected disclosure 1/protected act 1. The Tribunal has concluded there was no such protected disclosure/protected act – no conversation which formed the basis of protected disclosure 1/protected act 1 was found to have taken place. This claim for detriment thus fails. 25 of 33[113]In any event/in the alternative, the Tribunal felt bound to comment that the move to the clothing department was not, objectively, a detriment. In a meeting on 23 May 2016, the claimant herself said that moving to clothing was something she could do (page 223). In evidence, she said she was happy working in clothing saying it was “lovely” further that the respondent was “trying to look after me”. Further that she should have “gone straight into clothing”. This went completely against the grain of feeling unhappy or dissatisfied about being moved to work in clothing.[114]Failure to review of the claimant’s adjustment passport 3 months after 11 September 2017 – the claimant asserted that she did not have a 3-month review of her passport (after the first one) which she says was on the ground of protected disclosure 1/protected act 1 and/or protected disclosure 2/protected act 2. For reasons already referred to above, any claim for detriment on the ground that the claimant had done protected disclosure 1/protected act 1, fails. Similarly, the Tribunal has concluded the claimant did not make/do protected disclosure 2/protected act 2 in the claim form presented on 12 April 2018.[115]Moreover/alternatively, the claim form was not served on the respondent until 2 August 2018 (page 3). The claimant’s adjustment passport was dated 11 September 2017 (page 549) and reviewed on 24 June 2018. Any alleged failure to review sooner could not, obviously, be on the ground of a claim form which was not received until August 2018.[116]The claim for detriment thus fails.[117]Being asked to sign a document on 3 December 2017 regarding drug testing for drivers – the claimant said the document had no background information and was not addressed to the claimant. The claimant also complained about the manner in which it was presented to her. The claimant said this was on the ground of protected disclosure 2/protected act 2 and/or protected disclosure 3/protected act 3. For reasons already referred to above, any claim for detriment on the ground that the claimant had done protected disclosure 2/protected act 2, fails. Similarly, the Tribunal has concluded the claimant did not make/do protected disclosure 3/protected act 3. 26 of 33[118]Moreover/alternatively, this alleged detriment pre-dated both protected disclosures 2 and/or 3/protected acts 2 and/or 3. Thus, obviously, the alleged detriment could not be on the ground of matters arising later.[119]This claim for detriment thus fails.[120]On 20 January 2018, Mr Collins told the claimant that the dot com drivers were not happy with the claimant having her van loaded – the claimant said this was done on the ground of protected disclosure 3/protected act 3 and/or protected disclosure 4/protected act 4. For reasons already referred to above, any claim for detriment on the ground that the claimant had done protected disclosure 3/protected act 3, fails. Similarly, the Tribunal has concluded the claimant did not make/do protected disclosure 4/protected act 4.[121]Moreover/alternatively, this alleged detriment pre-dated both protected disclosures 3 and/or 4/protected acts 3 and/or 4. Thus, obviously, the alleged detriment could not be on the ground of matters arising later.[122]This claim for detriment thus fails.[123]On 11 June 2018, the claimant’s grievance against Mr Addison was not upheld and on 5 July 2018, her grievance appeal was not upheld – the claimant said this was done on the ground of protected disclosure 4 and/ or 5/protected act 4 and/or 5 (grievance outcome) and protected disclosure 5 and/or 6/protected act 5 and/or 6 (grievance appeal outcome). For reasons already referred to above, any claim for detriment on the ground that the claimant had done protected disclosure 4/protected act 4, fails. Similarly, the Tribunal has concluded the claimant did not make/do protected disclosure 5/protected act 5, or protected disclosure 6/protected act 6.[124]Additionally, or alternatively, for reasons given in paragraph 89, the Tribunal concluded that whilst these could amount to detriments, they could have nothing to do with the claimant’s alleged pleaded protected were 100% about drug-taking (indeed both of her letters to Ms Ryall referred to drug-taking). However, this was not her pleaded case. 27 of 33[125]Furthermore, the Tribunal had no evidence before it to suggest that either Mr Partridge or Mr Message were aware of the letters to Ms Ryall. Ms Ryall had said she had not made them aware and the claimant accepted in evidence at least in relation to Mr Partridge that he did not know about her letters to Ms Ryall. Those letters could not thus have influenced these decision makers in any respect at all.[126]In relation to the grievance appeal outcome (5 July 2018), this could not be on the ground of presentation of the second claim form dated 3 August 2018, sent to the respondent on 6 September 2018 (page 27), as both of these dates post-dated the asserted detriment.[127]These two claims for detriment thus fail.[128]On 11 July 2018, the claimant was invited to a disciplinary hearing to answer allegations of gross misconduct – the claimant said this was done on the ground of protected disclosure 1 and/ or 3 and/or 4/protected act 1 and/or 3 and/or 4. For reasons already referred to above, any claim for detriment on the ground that the claimant had made/done any of these protected disclosures/protected acts fails as the Tribunal has concluded that the claimant did not make/do any of those protected disclosures/protected acts.[129]Additionally, or alternatively, for reasons given in paragraph 89, the Tribunal concluded that whilst this could amount to a detriment, it could have nothing to do with the claimant’s alleged pleaded protected were 100% about drug-taking. However, this was not her pleaded case.[130]Ms Purvis’s evidence was also that she did know of any of these alleged protected disclosures/protected acts (paragraph 36.3 of her witness statement). This evidence was not challenged and there was no competing evidence before the Tribunal. Ms Purvis’s investigation was a response to the serious written complaints/grievances which had been received which she was bound to investigate (and make a decision on). The claimant said under cross examination “I would do the same”. That was a complete answer to the reason why the allegations against the claimant were investigated and subsequently invited to a disciplinary hearing. 28 of 33[131]This claim for detriment thus fails.[132]On or around 2 August 2018, the claimant received the outcome of her grievance dated 30 July 2018 which was not upheld – the claimant says this was on the ground of all or any of her protected disclosures. All of the protected disclosures/protected acts have been found not to be protected disclosures/protected acts, so any claim for detriment on the ground of those must fail.[133]Additionally, or alternatively, it was not clear what (if any) grievance outcome was conveyed to the claimant on 2 August 2018 and what, if any, grievance dated 30 July 2018 this related to. Under cross examination, the claimant confirmed that this was about there being no outcome to her grievances against Ms Knight, Ms Purvis and Mr Addison. That was not factually correct as there were outcomes in relation to Ms Knight and Ms Purvis (pages 1011-1013) and in relation to Mr Addison, there was a decision on 19 July 2018 not to investigate/hear this grievance as it was similar to earlier grievances which had been investigated and found to be unfounded after investigation (page 920).[134]Additionally, or alternatively, for reasons given in paragraph 89, the Tribunal concluded that, whilst this could amount to a detriment, it could have nothing to do with the claimant’s alleged pleaded protected were 100% about drug-taking. However, this was not her pleaded case.[135]In addition, there was no evidence that Ms Maclean was aware of any of the earlier protected disclosures/protected acts or on what basis such that she could have been influenced by any of those at all.[136]Furthermore, protected disclosures/protected acts 2 and 6 post-dated the asserted detriment.[137]This claim for detriment, thus fails. Unfair Dismissal – S.98 (2) & (4) ERA 1996 29 of 33[138]In assessing whether the respondent had a genuinely held belief in the claimant’s misconduct, the Tribunal concluded that the respondent did hold such a belief. The case against the claimant had come to the respondent’s attention by the raising of written complaints by 3 employees. The key decision makers at the dismissal and appeal stages had no prior involvement with the claimant and had nothing to do with any earlier incidents or matters. The claimant’s conspiracy theory was as far-fetched as it could have been. The claimant had said all complainant had been propped up to make their statements which were false. The claimant had also asserted that because a manager had previously worked with another manager about whom the claimant had complained, that alone would be a disqualifying reason for that manager to be involved in any process relating to the claimant and would make that manager partial. The respondent was entitled to reject these assertions which had no evidential basis. Bizarrely, the claimant said during the Hearing that she believed both of her union representatives were also part of the conspiracy case (against her). She had not alleged this before but said she had believed this to be the case. The credibility and plausibility of these assertions were flatly rejected by the Tribunal. The Tribunal reminded itself that at both the dismissal and appeal hearings, the claimant had alleged she had been told to shut up frequently, throughout the meetings (every 5 minutes) at which meetings both her representatives had been present and which meeting notes both the claimant and the representatives had signed. This had also not previously been raised at all. The claimant’s reliance at the Hearing on her complaints about alleged drug taking in the workplace as being the sole reason why the claimant was adversely treated had no pleaded foundation. The other significant problem with this underlying theme of the claimant, which dated back over 10 years, was that the manager who the claimant said was ‘guilty’ of such behaviour in the workplace was never charged or prosecuted – somebody else was prosecuted. Upon further probing, the claimant had no explanation why she maintained her view of the manager or why this manager moved store or that it had anything to do with drugs.[139]In assessing if the respondent had reasonable grounds to hold its belief in the claimant’s misconduct, the Tribunal concluded that it did so. The Tribunal reached this conclusion with some ease. The case against the claimant involved multiple incidents which were all corroborated – there were 2 consistent accounts of the racial comments, there were 2 accounts of the incident relating to the claimant’s reference to her 30 of 33 manager as a cunt and there 2 accounts of the altercation between the claimant and Mr Steenhoven. Other than an assertion of conspiracy, there was no evidence before the respondent that the individual complainants had been put up to making false statements regarding the claimant. The respondent was entitled to conclude that the complainants had given honest accounts. That the incidents happened/were reported in close date proximity or that Mr Addison had asked Mr Tester to make a statement of what he said the claimant had said about him, or that Mr Steenhoven and Mr O’Donnell had discussed the racial comment (first), was no basis to disqualify or dilute the respondent’s reliance on those statements.[140]The Tribunal also concluded that the respondent carried out as much investigation into the matter as was reasonable. Each of the complainants were interviewed by Ms Purvis. At the dismissal stage, Mr Germain requested further investigation. The claimant raised multiple grievances around the time of his dismissal. The grievances against Ms Knight and Ms Purvis were independently investigated and rejected. The contextual background had some relevance, notably that an earlier grievance raised against Mr Addison had been heard and rejected arising from the claimant’s objection to sign a drugs consent form because, whilst it had a signature and print your name sections, it was not addressed/personal to her. Mr Germain had not upheld 2 of the initial 5 allegations against the claimant and had properly been entitled to conclude the other allegations were made out.[141]Procedurally, the claimant knew the full extent of the case against her and had a full right of reply. She was accompanied at her meetings and was supported and advised by her union. The assertion about her union representatives being part of the conspiracy was only raised at the Hearing and which the Tribunal concluded was baseless.[142]The decision to dismiss the claimant was procedurally and substantively entirely within the range of reasonable responses and not one with which the Tribunal could interfere by some distance. It was open to the respondent to characterise the cumulative effect of the conduct as gross misconduct (the Tribunal was not satisfied that the respondent had concluded each incident to be stand alone incident of gross misconduct) - the claimant had referred to her manager as a cunt, she had threatened another employee and had made a racially offensive remark. The respondent had regard to the absence of any remorse and 31 of 33 self-awareness whatsoever and that there were multiple incidents. These were permissible reasons to take into account before reaching its decision. Unfair Dismissal – S.103A ERA 1996[143]Having regard to the reasons for the conclusions reached above, the reason for the claimant’s dismissal or principal reason, had nothing to do with the making of any protected disclosures.[144]The claimant did not make any protected disclosures.[145]Additionally, or alternatively, for reasons given in paragraph 89, the Tribunal concluded that the claimant’s dismissal could have nothing to do with the claimant’s alleged pleaded protected disclosures– the claimant said the concerns she had raised were 100% about drug-taking. However, this was not her pleaded case.[146]Additionally, or alternatively, the Tribunal has concluded that the respondent had a genuine belief, based on reasonable grounds having carried out a reasonable investigation, in the conduct (misconduct) of the claimant. It has discharged its burden as to the reason why it dismissed the claimant. There was no causal connection at all to any other reason.