JP and T Renolds v Spelthorne Borough Council: 2301280/2021 and others

EMPLOYMENT TRIBUNALS

Case No 2301280/2021

Between

JP and T RenoldsClaimant

Spelthorne Borough CouncilRespondent

Before

Employment Judge Shastri-Hurst

In person for claimant

Mr S Harding (instructed by counsel) for respondent

Date 3 January 2023

REASONS

[1]The claimant was employed by the respondent, as a Community Development Manager, from 3 February 2019 to 17 January 2021.

[2]The claimant initially presented three separate claim forms, in relation to 3 separate types of claim: 2.1. Claim number 2301280/2021 related to a claim of detriments arising from protected disclosures under section 47B of the Employment Rights Act 1996 (“ERA”). The claimant commenced the early conciliation ACAS process on 3 November 2020, and that process was completed on 13 January 2021. The claim form was presented on 5 April 2021. 2.2. Claim number 3311674/2021 related to a claim of disability discrimination under the Equality Act 2010 (“EqA”). The claimant commenced early conciliation on 5 April 2021. That process was completed on 17 May 2021, and the claim form presented on 16 June 2021. 2.3. Claim number 3311663/2021 related to a claim of automatic unfair dismissal because of protected disclosures under section 103A ERA. The claimant commenced early conciliation on 5 April 2021. That process was completed on 17 May 2021, and the claim for presented on 16 June 2021.

[3]The three claims were consolidated by order dated 15 November 2021. A preliminary hearing was originally listed for case management by telephone on 22 July 2022, however unfortunately this had to be postponed due to lack of judicial resource. The preliminary hearing went ahead on 10 January 2023. At that hearing the Judge was able to draw up a list of issues relating to the automatic unfair dismissal claim and the detriment claim. However, she was not able to complete the list of issues regarding the disability discrimination claim.

[4]At that preliminary hearing, the case was set down for another preliminary hearing for two days in order to deal with three issues: 4.1. Determining whether the claimant was disabled within the meaning of the EqA at the relevant time for the purposes of her discrimination claim; 4.2. Clarification of the specific acts of discrimination alleged by the claimant in her disability discrimination claim, including categorisation of the types of claim brought (for example section 13, section 15, section 26 etc); and, 4.3. Giving further case management orders to prepare the case that the final hearing.

[5]The final hearing for this claim had been listed for 28, 29, 30, 31 October, 1, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15 November 2024, for 15 days. Unfortunately, the parties were not informed of these dates: I informed them at the beginning of the hearing before me that these dates had been listed for final hearing. Preliminary issue

[6]This was in fact an issue that was raised at the conclusion of the hearing, by Mr Harding, but I will address it here.

[7]Mr Harding very fairly raised that, given the claimant had asked for written reasons, I may wish to consider making an anonymity order under rule 50 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”), in order to protect the claimant’s identity in relation to the publication of very personal health information. The claimant confirmed that she wished for me to consider making such an order, anonymising her name. Law on anonymisation

The issues

[8]The tribunal has the power to make an anonymisation order under r50 of the Rules. R50 provides:(1) a tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act.

(2) in considering whether to make an order under this rule, the tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.

(3) such orders may include – … (b) an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record; …

[9]An order must be “necessary” for one of three reasons: 9.1. In the interests of justice; 9.2. To protect a Convention Rights; or, 9.3. To protect confidential information as defined in s10A ETA (this is not relevant here).

[10]Furthermore, under Rule 50(2) the Tribunal is required to give “full weight” to the principle of open justice and the Convention right to freedom of expression when exercising its discretion under Rule 50(1).

[11]The test in such cases is a balance of the competing Convention rights of right to a private life, right to a fair and public hearing, and right to freedom of expression.

[12]The default starting point is the fundamental principle of open justice, meaning that judgments (and hearings) are public. It is for the claimant to prove that I should move from this default position. However, there will be times when a derogation from that principle is appropriate.

[13]I am assisted by the Practice Guidance (Interim Non-Disclosure Orders)

[2012] 1 WLR 1003

, which provides the following key points: 13.1. Applications to restrain publication always engage

Article 10 of the European Convention

of Human Rights (“ECHR”) and s12 of the Human Rights Act 1998 (both refer to freedom of expression).

Article 8 of the ECHR

may also be engaged (right to respect for private and family life). Articles 8 and 10 have equal weight. 13.2. Open justice is a fundamental principle and the general rule is that hearings and judgments are public; 13.3. Derogation from this principle is wholly exceptional and limited to what is strictly necessary for the proper administration of justice or to achieve its purpose; 13.4. The burden of establishing a derogation from this principle lies on the party making the application. This must be done with clear and cogent evidence; 13.5. A derogation from the principle is not discretionary; sufficient exceptional grounds either exist, in which case it must be granted, or they do not and it must be refused; 13.6. Parties cannot consent to the making of an order under r50. 13.7. In the case of A v BBC

[2015] AC 588

, Lord Reed at paragraph 42 set out some examples in which the making of an anonymity order may be appropriate, including where: “it would be in the interests of justice to protect a party to proceedings from the painful disclosure of personal information about her where there was no public interest in its being published”. Conclusion on anonymisation

[14]I have heard the claimant give evidence and observed her over a two day period. I accept that she is not well. She has disclosed a great deal of very personal, distressing information, for the purposes of this hearing.

[15]This is not a case in which embarrassment or reputational risk are the concerns; these would not be enough to move away from the principle of open justice. The concern here is the claimant’s welfare, and the impact that her name being published would have on her mental health, which is already fragile.

[16]I cannot see that there is any public interest in the claimant’s identity being known. The public interest in this matter is not affected by the claimant’s identity being concealed.

[17]I find that this is a case which falls squarely within the example set out above from Lord Reed. The details of the claimant’s medical history are undoubtedly painful and upsetting to her; if her name were to be published, that would only compound those feelings and hurt the claimant further.

[18]I consider that this is a case which requires derogation from the default position of open justice. The claimant’s right to a private life outweighs the need for open justice on the facts of this case. The right to freedom of expression is not affected in this specific case by the claimant’s name being anonymised.

[19]I therefore make an anonymisation order, anonymising the claimant’s name. she will be referred to as “JP”. Disability

[20]In terms of the claimant’s disability claim, she relies upon anxiety, depression and stress reaction.

[21]At the beginning of the hearing, I asked the claimant whether there were any reasonable adjustments that she would be assisted by us making. The claimant also suffers from sensory issues, however she confirmed that the lighting and the setup of the room were fine for her. I advised that she just had to ask if she required a break, or if there was anything else we could do to assist her over the course of the hearing. There were times when the claimant required breaks, and this was accommodated.

[22]At the hearing on 10 January 2023, the claimant had clarified that the earliest act of disability discrimination of which she complained took place around 9 July 2020. At the beginning of the hearing in front of me, the claimant clarified that in fact she alleged that the earliest act of discrimination had taken place in December 2019.

[23]Therefore, for the purposes of determining the claimant’s disability status, the relevant period for me to consider is December 2019 through to the claimant’s date of termination on 17 January 2021.

[24]In determining the issue of disability, I heard evidence from the claimant and was provided with a bundle of 666 pages, including the disability impact statement from the claimant at page 224. The claimant was cross-examined by Mr Harding, and both parties made closing submissions. During the course of the hearing the claimant produced a few additional emails, some with attachments. Mr Harding did not object to those documents being admitted, and so I took those into account as well. Issues

[25]In determining whether a claimant is disabled for the purposes of section 6 of EqA, the issues are as follows: 25.1.1. Did she have a physical or mental impairment, namely anxiety, depression and stress reaction? 25.1.2. Did it have a substantial adverse effect on her ability to carry out day-to-day activities? 25.1.3. If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? 25.1.4. Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures? 25.1.5. Were the effects of the impairment long-term? The Tribunal will decide: 25.1.5.1. did they last at least 12 months, or were they likely to last at least 12 months? 25.1.5.2. if not, were they likely to recur? Law

[26]There are four questions the tribunal must ask itself when considering whether a claimant fulfils the definition of disability: 26.1. was there an impairment; 26.2. what were its adverse effects; 26.3. were they more than minor or trivial; 26.4. had those effects lasted 12 months, or was it likely that they would continue for 12 months or that they would re-occur.

[27]In terms of impairment, the relevant question is the effect of an impairment not the cause.

[28]Tribunals can approach the question of disability in two ways: it can consider the impairment first, followed by the effects of that impairment. In the alternative, when there are difficult issues as to the nature and extent of an impairment, the Tribunal can consider the question of long-term substantial adverse effect first.

[29]In this case I consider that the most effective way of determining the issue of disability is to first consider the effects the claimant suffered during the relevant period as a result of her anxiety, depression and stress reaction. Substantial adverse effect

[30]Under section 212(2) EqA, “substantial” is defined as meaning more than minor or trivial.

[31]In Elliott v Dorset County Council

[2021] IRLR 880

, the Employment Appeal Tribunal set out the test of substantial adverse effect. This requires a comparison between the ability of the person as an individual to carry out these activities versus how they would carry them out if not suffering from an impairment. Long term effect

[32]When considering whether the effects are likely to last for 12 months or more, or are likely to recur, the meaning of “likely” has been held to mean “could well happen", as opposed to something that is more likely than not to happen – SCA Packaging Ltd v Boyle

[2009] UKHL 37

[33]The question as to whether the adverse effect was likely to occur or last 12 months are more is one that needs to be answered without having regard to subsequent events (McDougall v Richmond Adult Community College

[2008] EWCA Civ 4

). It involves a “prediction on the available evidence” (Pill LJ at paragraph 23): “In my judgment, it is on the basis of evidence as to circumstances prevailing at the time of [the alleged discrimination] that the Employment Tribunal should make its judgment as to whether unlawful discrimination by the employer has been established”

[34]In other words, the tribunal must discount any evidence regarding the effects of the claimant’s impairment that post-dates the alleged discrimination.

[35]In a similar vein, at paragraph 33, Rimer LJ said: "… The evidence relating to the relevant time either will, or will not, prove the likelihood of recurrence. If it does prove it, evidence of subsequent events is unnecessary and irrelevant. If it does not prove it, evidence of those events cannot fill the gap. That is because it is fallacious to assume that the occurrence of an event in month six proves that, viewing the matter exclusively as at month one, that occurrence was likely. It does not. It merely proves that the event happened, but by itself leaves unanswered whether, looking at the matter six months earlier, it was likely to happen, a question which has to be answered exclusively by reference to the evidence then available. …"

[36]In short, the relevant question is whether, at the time of the alleged discrimination, the effect of the impairment was likely to last at least 12 months, or recur. The assessment of that question must be on the facts and circumstances that existed at the time of the alleged discriminatory acts.

[37]Ultimately, the question of disability is a legal question for the tribunal. Although it is assisted by medical evidence, it is not bound by that evidence. Sullivan v Bury Street Capital Ltd

[2021] EWCA Civ 1694

[38]The case of Sullivan raises the issue of whether the claimant’s delusional disorder impacted his day-to-day life such that, at the material time, it constituted a disability within the meaning of s6 EqA. The tribunal found that, between May and September 2013, there was a substantial adverse effect as required under section 6 on the day-to-day activities of sleeping and social interactions that were caused by his delusional beliefs. The tribunal also found that, between April and July 2017, there was again a substantial adverse effect, that being some 3.5 years after the first period.

[39]On that basis the tribunal concluded that the claimant was not disabled. It is this part of the claimant’s appeal that is relevant to today's hearing. The claimant’s first ground of appeal was to argue that the tribunal had erred in law in finding that he was not disabled, particularly given its approach to the likelihood of occurrence issue. The Employment Appeal Tribunal rejected the appeal, but gave permission to appeal to the Court of Appeal.

[40]In Sullivan, the Employment Tribunal found it important to distinguish between the claimant’s continuing belief in the existence of a Russian gang (the manifestation of his delusions), and the effect that such belief had on his ability to carry out day-to-day activities.

[41]The tribunal held that, during the period of substantial adverse effect in 2017, it was not likely that the substantial adverse effect would continue for at least 12 months – cited at paragraph 22 of the Court of Appeal judgment: “In 2013 the substantial adverse effect had lasted around 4-5 month, as the tribunal has found. During this period in 2017, the claimant was under particular stress by reason of the discussions about the basis of his remuneration. These were not going to continue indefinitely, and it was likely that his condition would improve once they were resolved. The tribunal concluded that so far as this episode in 2017 is concerned, it was likely that the substantial adverse effect would continue, like that of 2013, for a number of months, but for rather less than 12 months.”

[42]For the same reasons the tribunal held that the substantial adverse effect was not likely to recur within the meaning of the EqA. For these reasons the tribunal found that the claimant was not disabled.

[43]At the Court of Appeal, Singh LJ made the point that this is a decision that was based on its facts rather than raising any points of general principle.

[44]Singh LJ went on to consider some of the cases relevant to his decisionmaking. The case of J v DLA Piper UK LLP

[2010] ICR 1052

at paragraph 45 sets out an example of where recurring short periods of depression may lead to a finding that a claimant is disabled. This example, given by Mr Justice Underhill in Piper, simply provides an example of where, on the facts of any specific case, it may be “appropriate to infer that there is a continuing disability where there are recurrent symptomatic episodes” (paragraph 92 Sullivan).

[45]In terms of dealing with the issue of likelihood of recurrence, as I have said there were two periods of a few months in which the effects of the impairment were substantial and adverse; those in 2013 and 2017. The Court of Appeal held that the Employment Appeal Tribunal had been right to conclude that, for the purposes of determining whether there was a disability 2013, the fact that the adverse effect did recur in 2017 was irrelevant.

[46]At paragraph 95 of Sullivan, Singh LJ highlighted that the case of McDougall did not decide what the relevance was of the events in 2013 to the likelihood of occurrence when considering the events of 2017. However, he noted that: “...although in many instances the fact that a [substantial adverse effect] has recurred episodically might strongly suggest that a further episode is something that “could well happen”, that will not always be the case. Where, as here, the [substantial adverse effect] was (in the judgment of the ET) triggered by a particular event that was itself unlikely to continue or to recur, then it is open to the Employment Tribunal to find that it is not likely to recur”.

Findings of fact

[47]I set out below a chronology of the relevant facts. I have limited myself to facts that are relevant to the issues and the decision that I have to make on the disability status of the claimant. Prior to 2019

[48]The GP notes, at page 282, show that in September 1994 the claimant was diagnosed with anxiety and depression.

[49]In July 1996, the claimant was diagnosed with adjustment disorders and depression. In May 2011, she suffered from suicidal ideation.

[51]In October 2011, the claimant suffered with acute stress reaction NOS (not otherwise specified).

[52]These are the only references to mental health issues made under the GP notes section of “significant past” on page 282.

[53]Over the past two days, the claimant has explained to me that she suffered tiredness in December 2019. This is referenced at page 283 of the GP records.

[54]There is also a note in the GP notes section “minor past” on page 283, regarding a period of stress at work in the summer of 2017. At page 316, there is a summary of the fit notes for that period, all of which cite the issue as being stress and anxiety. I also note the GP record entries for this time at pages 305-306.

[55]In 2019 the claimant was a victim of domestic violence. The GP notes covering this are at pages 301 and 300.

[56]On 16 August 2019, the claimant attended her GP surgery reporting domestic stress. The GP recorded ”feels mood is much better", “not needed the Propranolol and no further palpitations” and “no suicidal ideation/self-harm thought” – page 300.

[57]On 13 December 2019, the claimant attended her GP surgery reporting a problem of being tired all the time. She denied low mood at this point – page 299.

[58]On 19 April 2020, the claimant attended her GP surgery. No problem is recorded as such, but the GP notes that “had a chat to patient first” – page 297. This appears to have been to discuss the claimant’s liver function. At that consultation the claimant denied having a low mood.

[59]In February 2020, the claimant was given a prescription for folic acid – page 283.

[60]There is then a gap in the claimant’s GP notes until December 2020. This was raised with her in cross-examination, to which she gave the response that the pandemic made it difficult to gain access to her GP. However, I also note the claimant’s evidence that she did not make an attempt to see her GP at this time, as she did not think there was anything that the GP could do for her, particularly given that she did not want to be signed off from work. There is therefore no medical evidence for this period before me, and nothing to suggest that the claimant sought any medical assistance.

[61]On 4 December 2020, the GP notes record that the claimant was suicidal – page 282. The claimant had a telephone call from the GP on this date: the problem is recorded that the claimant was suicidal and that she was feeling low and depressed having been suspended yesterday. At this point, she was having thoughts of suicide, although the GP noted that she (the claimant) said she would not do anything once the GP had hung up. The second time the GP telephoned, the claimant sounded very calm – page 296.

[62]On this same day, an adult mental health services referral form was completed by the Berkshire NHS Community Mental Health Team (“CMHT”). The referral notes that a “high level of risk [is] indicated”– page322. The reason for referral is stated to be “issues at work suspended may lose job in two weeks lives alone” – page

323. At page 324 in terms of risk factors, under “present", the box of suicide is ticked.

[63]On 11 December 2020, Dr Rumalean, the consultant psychiatrist at the Crisis Resolution and Home Treatment Team West (“CRHTT”) reviewed the claimant, and wrote a letter to her GP. Dr Rumalean diagnosed her with acute stress reaction and adjustment disorder. It was recommended that the claimant take Diazepam, although she seemed reticent to do so (and in fact did not take it). The claimant was also given some advice in terms of alcohol intake and withdrawal. The claimant was given the information to self-refer to the Resilience Team. Dr Rumalean ended his letter by stating “CRHTT will soon discharge the patient back to you and Resilience” - p336.

[64]Also on this date, a member of the CRHTT wrote to the claimant’s employer setting out that the claimant was struggling with her mental health and was under their care for short-term interventions. The letter requests that a meeting on the 18 December 2020 is postponed until the claimant is mentally stable .

[65]The claimant was discharged from the care of the CRHTT on 26 December 2020 – page 295.

[66]On 4 January 2021, the claimant completed an e-consult form for the Datchet Health Centre - page 339. In that document the claimant reports symptoms of lack of concentration, lack of motivation, not washing and wearing the same clothes, not eating properly, feeling there is no point to anything – page 340.

[67]Following that e-consult form to Datchet Health Centre, a response was received on 5 January 21 which stated; “Thank you for your recent e-consult request. Tracey, I have read the notes and feel that continuity of care here is important to you. I have therefore asked Dr Kalirai to contact you tomorrow when he is back at work. I hope that that is okay – I know you have crisis team details and would encourage you to contact them or myself urgently today if you feel you cannot wait. Dr M Watts - page 295

[68]On 6 January 2021, the claimant was issued with a fit note stating she was not fit to work due to stress and adjustment reaction from 6 January 2021 to 6 February 2021– reference page 315.

[69]On 7 January 2021, the claimant was admitted back to the CRHTT – page 338. This was due to concerns with anxiety, severe distress, confusion and sensory distortion.

[70]On 8 January 2021, Alice Priestley, a student nurse, emailed to Datchet receptionists and copied in Dr Rumalean, stating that the claimant had been experiencing distressing gaps in her memory, and had been reporting these since early December 2020. The email requested various tests to be done including a CT scan.

[71]On 12 January 2021, a letter of support was provided from Alison Sayers, a Senior Mental Health Practitioner at the CRHTT. She states in that letter that the claimant has been diagnosed with acute stress reaction and adjustment disorder, and that she is complying with the recommended treatment and is engaging well with the crisis team for intensive support.

[72]On 13 January 2021, the GP called the claimant to discuss a recent letter asking for further blood tests, an ECG and a CT head scan regarding her poor memory. The claimant had on this date developed a significant stammer and the GP advised her to go to A&E, which she did – page 294. The admission sheet is at page 346: the claimant was admitted at 1809hrs on 13 January 2021, and was discharged six hours later with no follow-up.

[73]On 17 January 2021, a letter was sent from Dr Kalirai at Datchet Health Centre to report that he had reviewed the claimant recently on a number of occasions and that there were currently significant concerns for her mental health – page 319. He records the current diagnosis as being acute stress reaction. He goes on to record that: “a significant degree of her current stress is being caused directly by her work situation, and I understand that she had recently been asked to attend a disciplinary meeting. Given her current fragile mental health status I feel it was perfectly appropriate that she did not attend. I had also written the Med 3 for her the day prior on Jan 6th”.

[74]On 20 January 2021, Kirsty Bader at Frimley NHS emailed Datchet Health Centre, stating that their “overall impression is of an acute stress reaction with psychosis” – page 345. The letter also states “she previously has had thoughts of self-harm, but does not have any at present, nor does she have suicidal ideation)”.

[75]On 21 January 2021, the GP called the claimant again for a review. The GP had spoken to Alison Sayers at the CMHT. The CT scan results had been checked and it was concluded that this was an acute stress reaction with psychosis, and short-term memory loss is recorded with sensory distortions, auditory hallucinations and stammers amongst other symptoms – the GP recommended that the claimant call Resilience.

[76]On 3 February 2021, the claimant emailed the reception team at Datchet Health Centre, setting out some of her symptoms, including poor memory.

[77]On 8 February 2021, the GP made a neurology referral to Datchet Health Centre – reference at page 290.

[78]On 17 February 2021, the GP called the claimant to review her stress and adjustment reaction. In the consultation, the claimant said her mood was better and that she was feeling a bit better in herself. She also commented that the Chief Executive was reviewing her case and so she remained hopeful about her job– page 290.

[79]In June 2021, the claimant commenced treatment with Resilience which was ongoing until March 2023. This included one-to-one sessions group sessions, and a course entitled “Choosing to Change”: this treatment related to the claimant’s alcohol addiction.

[80]On 21 December 2021, the neurology referral was actioned and the claimant was seen on 22 December 2021 for an MRI scan – page 289.

[81]The outcome letter following that appointment is at page 350 and states: “[e]vents December 2020 with further worsening January [2021] affecting speech and memory and cognition”. This letter records that “there is a significant background of work stress towards the end of 2020”. The diagnosis is recorded as “likely mental health based". The CT scan reported “possible low-density right basal ganglia arranging for MRI”.

[82]On 23 February 2022, the results of that MRI were received, finding no evidence of acute stroke or other abnormal findings. The MRI is reported as being “very reassuring" – page 353.

[83]In December 2022, the claimant concluded a 12-week programme called “Freedom”, supplied by the DASH charity. The claimant has provided evidence to show that she had been in email contact with DASH since September 2022.

[84]In January 2023, the claimant undertook a course called “Brave”, run by Berkshire NHS. She was unable to attend one session on 29 March 2023. She did however complete the course on 5 April 2023.

Conclusions

[85]There are four questions I need to address: 85.1. was there an impairment ; 85.2. what were its adverse effects; 85.3. were they more than minor or trivial; 85.4. had those effects lasted 12 months, or could it well happen that they would continue for 12 months or more, or that they would reoccur.

[86]As set out above, I will first consider the question of the effects that the claimant experienced. Adverse effects – more than minor or trivial

[87]I remind myself that the relevant period for me to consider is December 2019 to 17 January 2021. I will split the chronology up into various sections. Pre–December 2019

[88]The claimant had suffered one period of work-related stress and anxiety in 2017 which lasted for around six months.

[89]The claimant was off work throughout this period . I note that the very nature of being too ill to be able to perform your job in itself demonstrates a substantial adverse effect on your day-to-day activities.

[90]I therefore conclude that this was a six-month period during which the claimant suffered substantial adverse effects stemming from stress and anxiety.

[91]There was also a period in summer 2019 in which the claimant suffered domestic stress and violence, which evidently led to stress being experienced by the claimant. In this period, the claimant had suicidal tendencies. Come mid-August 2019 the claimant reported feeling much better and her psoriasis had calmed down.

[92]I note in the claimant’s disability impact statement that, although she found this period stressful, she coped and took no time off work. The claimant however qualified this evidence to the Tribunal, by stating that she was not in fact “healthy” during this period as she had indicated in her statement at page 226: all she had meant was that she had been able to function.

[93]This period of stress appears to have lasted for around two months from midJune to mid-August 2019.

[94]I am satisfied that the claimant did suffer a substantial adverse effect during this 2-month period. Although the claimant took no time off work, she had been having palpitations, and reported suicidal tendencies and thoughts of self harm. She also suffered with psoriasis as a result of her stress – page 300. December 2019 to December 2020

[95]Although I accept that the claimant suffered from tiredness in December 2019, there is nothing further on the medical evidence or indeed the claimant’s evidence, to suggest that she was suffering substantial adverse effects during this period. I am not satisfied that “tiredness” in and of itself is a substantial adverse effect. Further, I have no evidence of any other symptoms the claimant was suffering at this time. December 2020 to 17 January 2021

[96]From the evidence I have heard and seen it is clear that, from 4 December 2020 through to January 2021, the claimant suffered severe symptoms of acute stress, including hallucinations, memory loss, confusion, and anxiety. I accept the evidence in her witness statement (that was not challenged) as to the extent of her mental distress during this period, including: 96.1. Hallucinating that she was on fire; 96.2. Attempting suicide; 96.3. Hearing voices and seeing things that were not real; 96.4. Not eating, washing, sleeping, or generally functioning.

[97]I am satisfied that the effects on her daily activities were more than minor or trivial during this period. I note the level of involvement from the CMHT and CRHTT at this time too, which indicates to me that the claimant was not coping and required significant intervention. 18 January 2021 onwards

[98]I have limited medical evidence to cover this period of time, and highlight the following points: 98.1. On 20 January 2021, was not having thoughts of self-harm of suicidal ideation – page 345; 98.2. On 17 February 2021, the claimant reported to her GP that her mood was better – page 290; 98.3. The claimant took part in one-to-one sessions and two types of group sessions from June 2021 to March 2023; 98.4. She undertook a 12-week Freedom course in winter 2022; 98.5. In January 2023, she undertook the Brave course.

[99]I have no further detail or medical notes that cover this period, whether from the Resilience team, or from the other courses which the claimant attended. This makes it difficult to assess the effects on the claimant, given the lack of evidence I have from those who were interacting with her at this time.

[100]The claimant was given the opportunity to produce any documents she wished to regarding these courses, and input from the Resilience team, during the course of the hearing. This was as a result of Mr Harding making the point that there was a gap in evidence regarding these courses, and the claimant indicating she could produce relevant documents for us. However, she only produced a few emails which did not take matters much further, other than indicating the periods during which she underwent the various courses.

[101]The claimant’s impact statement states: “The stutter and other cognitive impairment along with the anxiety continued throughout 2021 and I was referred for an MRI scan to ascertain what may have caused the dead mass in my brain. I was incapable of working and had very short-term memory. I would also get anxious and the anxiety would result in panic attacks and at their worst would trigger suicidal ideology”.

[102]This evidence was not particularly challenged in cross examination.

[103]I also take into account that: 103.1. The claimant had a fair amount of input in different forms of counselling from June 2021 to March 2023; 103.2. She has not returned to work in any capacity; 103.3. There appears to have been no medical intervention between February and June 2021.

[104]I have to consider how the claimant would have been without the counselling. I take into account how she has been and how she describes her symptoms with the benefit of counselling. She says at page 228: “by the time of the current hearing on 10 January 2023 I will have suffered poor mental health and substantial deterioration to my cognitive ability for 30 months or two and half years… I am still unable to work and haven’t had any paid employment since I was dismissed in January 2021. I suffer with anxiety and cannot remember things. I am under the care of Resilience and have counselling every two weeks. My language has improved but if I’m in a stressful situation I start to hallucinate and or hear voices and my language deteriorates into a terrible stammer whereby I cannot even speak or communicate properly”.

[105]Clearly, without the input of the Resilience team and other courses, the claimant’s symptoms would be worse.

[106]From the evidence, I find that the claimant had a memory loss problem, that had a substantial adverse effect on her ability to undertake day-to-day activities .

[107]In terms of hallucinations and hearing voices, these appear to be reactions to stressful situations. I do not have enough detail of the frequency of these hallucinations and so on to find that they have or had any substantial adverse effect on the claimant’s day-to-day life during this period.

[108]To recap, I accept that there was a substantial adverse effect on the claimant during the following periods: 108.1. 2017 for 6 months; 108.2. Mid-June to mid-August 2019; and 108.3. December 2020 to March 2023. Long-term effects

[109]As at the date of the claimant’s termination (17 January 2021), the substantial adverse effects had not lasted for 12 months or more. They had begun in December 2020, and so by the time of the claimant’s termination had lasted around 6 weeks.

[110]The question I must consider then is whether it was likely that the substantial adverse effects would last 12 months or more, or recur, as at 17 January 2021. In terms of likelihood of lasting this period, the question is whether there is evidence before me which shows that, viewed at the time of the alleged discrimination, it could well happen that the effects of the impairment would last for more than 12 months, or recur.

[111]Another way of looking at it is to consider what a doctor may have said in January 2021 if asked the question “how long do you think this will last?”.

[112]Towards the end of January 2021, the claimant was still under the guidance of the CMHT. Dr Kalirai at Datchet Health Centre sent a letter on 17 January 2021, which stated that the claimant was not in a fit state of mind to attend a meeting at the respondent’s premises and that the meeting should be adjourned – [319]. There was no indication of how long it should be adjourned for; equally there was no indication that the respondent should be prepared for a very lengthy wait.

[113]This letter also included a reminder to the respondent that there was a fit note covering the period up to 6 February 2021. Although I accept that the claimant’s fitness to work would have been reviewed at the expiry of this fit note, it appears that, as of 17 January 2021, the doctor did not envisage the claimant’s symptoms lasting for 12 months or more.

[114]The doctor also stated that the stress was significantly caused by work – page 319. This view was reiterated in the letter following a clinic appointment on 22 December 2021 – page 350.

[115]Mr Harding, in his submissions, suggested that the termination of the claimant’s employment would have seen an upturn in the claimant’s condition, as her problems at work would have reached a conclusion.

[116]I do not accept that there would have been a speedy recovery to complete health soon after the claimant’s termination. She would need to recover from the effect of being dismissed.

[117]Nevertheless, from the evidence I have before me, I am not satisfied that the claimant’s GP or Dr Rumalean, if asked on 17 January 2021 to give a prognosis, would have answered “12 months or more”. It may well be that they would envisage the effects of the claimant’s impairments lasting for a period of 2-6 months, as they had done in the past. However, the test is whether substantial adverse effects are likely to last for at least 12 months, orecur.

[118]I therefore conclude that the effects of the claimant’s impairments were not likely to last 12 months or more as at 17 January 2021.

[119]In terms of recurrence, I accept that the effects on the claimant were a reaction to the situation at work. That was a specific life event, and therefore in itself was not likely to recur so as to exacerbate those effects again. There was no indication as at 17 January 2021 that there would be any other life event in the near future that could well lead to a recurrence of the claimant’s symptoms.

[120]As such, the claimant did not satisfy the requirements of s6 EqA at the relevant period of December 2019 to 17 January 2021. The claimant’s disability discrimination claim will therefore be dismissed.

[121]The claimant still has her two other claims, of detriment and automatic unfair dismissal due to protected disclosures. A case management order has been made in relation to those matters in a separate document.

[1]The claimant has brought three claims against the respondent: 2301280/2021, 3311663/2021 and 3311674/2021.

[2]In broad terms, 2301280/2021 relates to detriments arising from protected disclosures, 3311663/2021 contains allegations of disability discrimination and 3311674/2021 contains allegations that her dismissal was automatically unfair because the reason or principal reason for it was that she had made protected

[3]At an earlier hearing it was determined that the claimant was not a disabled person at the relevant time for her claim, and in consequence claim Page 1 of 84 3311663/2021 was dismissed. We understand that that decision is currently under appeal, but this hearing is now concerned solely with claims 2301280/2021 and 3311674/2021, and the matters for us to decide are whether the claimant was subject to detriments for having made protected disclosures and whether the reason or principal reason for her dismissal was that she had made protected disclosures.

[4]The scope of those claims had been the subject of case management by EJ Eeley, resulting in the list of issues set out in appendix 1, from which we have omitted matters in relation to remedy, and added annotations in square brackets. This was described by EJ Eeley as setting out “the issues the tribunal will decide”.

[5]There are seven alleged protected disclosures, although some of these are groups of disclosures rather than individual disclosures. The respondent has accepted that the first five of those are protected disclosures. This leaves the sixth and seventh alleged protected disclosures in dispute. They are disclosure(s) about use of food from a food bank (and some related matters) and disclosure(s) about bullying at work. There are 26 detriments said to arise from those protected disclosures, culminating in the claimant’s dismissal. As with some of the alleged protected disclosures, some alleged detriments are groups of similar detriments, rather than individual detriments.

[6]We will consider this in detail later, but it appears that the seventh alleged protected disclosure(s) were made during the claimant’s appeal against her dismissal and post-dated any of the alleged detriments. If so, it is only the sixth protected disclosure(s) that is both relevant to any detriments (or dismissal) and not accepted by the respondent to be a protected disclosure.

[7]This hearing had been listed to address matters of liability only, but we agreed with the parties that this should also include any Polkey or contributory fault arguments. The issues

[8]There was substantial discussion about the issues at the start of the hearing.

[9]It was the claimant’s position that there were detriments that were missing from the list of issues.

[10]We were concerned both that the dates of any detriments were not clearly set out and that the respondent had not addressed (beyond a blanket denial) whether the events complained of happened and were capable of amounting to detriments. The blanket denial that any of these had occurred or could be detriments was not sustainable. For instance, it seemed very difficult for the respondent to dispute that the claimant had been suspended, nor that that suspension was capable of being a detriment. It was, of course, entirely Page 2 of 84 possible for the respondent to accept both of those points while still disputing that the suspension was anything to do with any protected disclosure.

[11]After considering the matter in detail with the parties we invited the claimant to take the rest of the day to prepare a document:a. Setting out any detriments that she says were missing from the list of issues, and

b. So far as she was able to: i. Setting out the dates of the detriments, ii. Setting out who she considered was responsible for the detriment in question, iii. Setting out which protected disclosure they related to, and iv. Attempting to group the detriments under various headings (it seemed, for instance, that several of the detriments were directly related to the decision to suspend her and could be dealt with under that heading).

[12]The claimant was to (and did) provide that document to the tribunal and the respondent by 09:00 the following day, with the respondent then having until 11:00 to reply to it setting out its position on whether any of the additional detriments could be considered by the tribunal, whether the factual basis of any alleged detriments was accepted and whether it was accepted that, in principle, any alleged detriment could amount to a detriment (without prejudice to the respondent’s position on whether the detriment had been caused by any protected disclosure(s)).

[13]The outcome of this process is referred to below. The respondent replied with some concessions on whether the facts alleged occurred and are capable of being detriments, but no concessions on the key question of whether any detriments were caused by the protected disclosures.

[14]We had some discussions with the claimant during the hearing about the wide scope of her claims. The 26 detriments involved the behaviour of a range of people. Of the respondent’s nine witnesses, eight were alleged by the claimant to have subjected her to whistleblowing detriments, along with at least one other former member of the respondent’s staff who did not give evidence.

[15]This complexity seemed particularly acute on the important question of the claimant’s dismissal. Ostensibly this had come about by a chain of events that were(i) a complaint from her managers,

(ii) a decision to investigate that complaint (and related matters),

(iii) conclusions reached by an investigator,

(iv) a decision to refer the matter to a hearing, and

(v) a decision reached at the hearing to dismiss her. Different individuals were involved at each step. Page 3 of 84

[16]In his closing submissions Mr Harding described the extent of the claimant’s claims and the wide variety of people involved as amounting to an improbable conspiracy theory unsupported by evidence. He was correct to add that the claimant had never cross-examined any witness about conspiring or colluding with any other witness.

[17]The claimant replied to this in detail in her closing submissions. She agreed that she was accusing around nine members or former members of staff at the respondent of carrying out various detriments against her. She was not, however, suggesting that this had arisen from any conspiracy or collusion. Her analysis of the web of protected disclosures and detriments (or dismissal) was not based on there being any conspiracy or collusion. Instead, she explained how (in her view) these detriments arose as the result of individual decisions made by individuals who were motivated in different ways by her various

[18]We discussed with the claimant the question of a whistleblowing detriment arising in the manner considered by the Supreme Court in Royal Mail v Jhuti

[2019] UKSC 55

[19]The claimant said that this was not the basis of her claim. Her position was that each individual detriment (and her dismissal) was a decision taken by the individual or individuals responsible for it who were consciously motivated in whole or in part by her protected disclosures. However, as she described in her closing submissions, not every individual was equally motivated by the same protected disclosure(s). The individual motivations were different but each related to and was caused by one or more of her protected disclosures. Whilst we must not lose sight of the overall context, for each detriment the claimant invites us to look at individual causes linked to protected disclosures, not a conspiracy or coherent or co-ordinated plan within the respondent. The hearing - adjustments

[20]The order of EJ Milner-Moore dated 2 July 2024 records the following: “I explained to the claimant that the Tribunal generally sits between 10 and 1 and 2 and 4 and takes a break during the morning and afternoon sessions. The claimant did not think that she would need more frequent breaks. She said that she would need both a hard copy and an electronic bundle and that she would like to bring a companion for support. The respondent is content to supply a bundle in both formats. I confirmed that there would be no objection to the claimant having a companion to provide support but informed the claimant that the companion would not be able to assist her when she was giving her evidence. Indeed, whilst giving evidence, the claimant will not be permitted to discuss the evidence that she is giving with anyone, even during breaks in the hearing.” Page 4 of 84

[21]That same order recorded that “the respondent did not require any adjustments for any person participating in the hearing on the respondent side.”

[22]We checked with the claimant at the start of the hearing whether there was anything she wanted to add to what EJ Milner-Moore had recorded and whether there was anything more that she wanted us to know in order that she could fully participate in the hearing. She confirmed that EJ Milner-Moore had accurately recorded what she needed.

[23]At the conclusion of the hearing, on reserving our decision, we asked the claimant to consider whether she wanted to nominate someone as a representative to receive this reserved judgment on her behalf. If so, she was to write to the tribunal giving the details of that representative. The hearing – matters arising during the hearing Day 1 – Monday 4 November 2024

[24]This hearing had originally been listed for 15 days, to start on 28 October 2024. Unfortunately, the tribunal was unable to accommodate this listing and by order of the regional employment judge the listing was reduced to ten days starting on 4 November 2024. The first week of the original listing of this case did not take place.

[25]In discussion with the parties at the outset of the hearing it appeared that the hearing could be completed within the ten days now allowed for it, based on a draft timetable agreed with the parties as follows: Day 1 Initial discussions (am), tribunal reading (pm) Day 2 Tribunal reading and further case management (am), Claimant’s evidence (pm) Day 3 Claimant’s evidence (all day) Day 4 Claimant’s evidence (am), claimant’s witnesses (if called upon by the respondent, or rest period if not) Days 5-7 Respondent’s witnesses Day 8 Closing submissions (am) That would then leave two and a half days for tribunal deliberation and, if possible, delivery of an oral judgment.

[26]On breaking at the end of the first day around 12:00 we indicated to the parties that we were considering making formal orders under rule 45 to ensure that this timetable was kept to by the parties in their cross-examination of witnesses.

[27]The tribunal spent the rest of the day and through to 12:00 on the second day reading into the case. Day 2 – Tuesday 5 November 2024 Page 5 of 84

[28]The hearing commenced around 12:00 on the second day, with the rest of the day being taken up with matters of case management, particularly relating to the list of issues. The outcome of this is recorded in a separate order dated 6 November 2024. In summary, the list of issues remained as determined by EJ Eeley. A formal order under rule 45 limiting the time for cross-examination in the manner described above was also made. Days 3-4 – Wednesday 6 & Thursday 7 November 2024

[29]These days were taken up with the claimant’s evidence, which was completed within the time permitted by our order. The claimant’s evidence spanned two statements – the statement she had provided about protected disclosures for the hearing before EJ Eeley (“the protected disclosures statement”) and the witness statement she had prepared for this hearing.

[30]The claimant also presented three statements from witnesses on her behalf. For one of the witnesses we were told that she could have attended the first week of the hearing if it had proceeded as originally listed, but that she was now overseas and could not attend. Mr Harding indicated that he did not wish to question the other two, so we took their witness statements as read and undisputed. Day 5 – Friday 8 November 2024

[31]The claimant was concerned at the respondent’s witnesses hearing their colleagues’ answers to her questions prior to giving their evidence. She made an application for witnesses to be excluded from the hearing room prior to giving their evidence. We refused that application. Our decision is recorded in a separate order.

[32]Following this, the day was taken up with the respondent’s witness evidence, starting with Deborah Ashman. In fact, Deborah Ashman’s evidence took up almost all of the day, and it appeared that the claimant may be struggling to keep her questions to relevant matters. With this witness and some later witnesses the claimant seemed more concerned with justifying her disclosures and criticising the respondent’s response to them than with establishing the necessary links between the protected disclosure(s) and any detriments (or dismissal).

[33]With encouragement from the tribunal the claimant was willing and able to focus more clearly on the relevant matters as her questions progressed. Nevertheless, it remained a theme of her questions that the respondent was guilty of persistent bad practice and had not adequately responded to her

[34]On the conclusion of Deborah Ashman’s evidence Karen Sinclair started her evidence late in the day on day 5. Page 6 of 84 Day 6 – Monday 11 November 2024

[35]Christopher Layte was recognised to be a witness only on a very specific point: the respondent’s response to the most recent disclosure order. He was interposed at the start of the day. Karen Sinclair’s evidence was concluded in the morning session, with Jayne Brownlow’s evidence in the afternoon. Day 7 – Tuesday 12 November 2024

[36]With the tribunal’s rule 45 order in place, the claimant would have to address the respondent’s remaining five witnesses by the end of the day on Tuesday 12 November. It was clear that the claimant was in some difficulties doing so, and at the start of the afternoon session she made an application for a short extension of time for her questions. This was not opposed by the respondent and was granted by the tribunal, so that Jackie Taylor could be questioned for an hour the following day, with all other remaining witnesses being dealt with on day 7. This is decision was recorded in a separate order. Day 8 – Wednesday 13 November 2024

[37]The claimant questioned Jackie Taylor for an hour in the morning, with closing submissions from the parties then concluded by 13:30. At the end of the hearing the claimant made an application to revoke the rule 50 anonymisation order that had previously applied to her claims. This application was not opposed by the respondent and was granted by the tribunal. It is addressed in a separate order. At the time of this reserved judgment there is no rule 50 order in place in respect of these claims.

[38]The claimant’s closing submissions helpfully included a list revisiting her former categorisation of the alleged detriments in the light of the evidence heard by the tribunal. Subject to some changes in formatting made by us (including adding some missing numbering), this is reproduced as appendix 2. It is in note form, but that was all that we required. It sets out the alleged detriments under various categories, with initials of those said to be responsible for them and identification of the protected disclosure(s) or alleged protected disclosure(s) that were said to be the cause of them.

[39]Following this, we indicated to the parties that we would reserve our decision, and that we had set aside the next three working days for discussions in chambers, which would extend up to and including Monday 18 November 2024. Much progress was made in that period, but we needed a further day on 3 January 2025 to complete this decision. General observations on the hearing

[40]We are grateful to the parties for their efforts to complete the case within the revised timetable they had agreed at the start of the hearing, and commend both sides for their positive and helpful approach to a hearing that touched on Page 7 of 84 many difficult issues. The claimant conducted herself admirably in an unfamiliar environment, while revisiting what had obviously been a very difficult period for her. At the end of the hearing she thanked both the tribunal and Mr Harding for their conduct of the hearing, noting in particular that Mr Harding had not opposed her application for further time for questioning the respondent’s witnesses. We likewise thank both the claimant and Mr Harding for their conduct during this hearing. Day 9 onward

[41]The remainder of the listing of this case, together with additional days on Monday 18 November 2024 and Friday 3 January 2025 were taken up by chambers discussions concerning what we had seen and heard during this case and its hearing. This decision is unanimous and represents the views of all three members of the tribunal panel. Orders made

[42]The following orders were made during the hearing and have been issued separately: Date: Matter(s) addressed: 6 November 2024 Various (including rule 45 time limits) 11 November 2024 Exclusion of witnesses from the hearing. 13 November 2024 Variation of the rule 45 order. 14 November 2024 Revocation of the anonymisation order. THE FACTS – PART 1 - INTRODUCTION

[43]The claimant was employed by the respondent as Community Development Manager from early February 2019 until her dismissal, which took effect on 17 January 2021.

[44]The claimant reported to Deborah Ashman and Karen Sinclair, who job-shared in the role of Group Head, Community Wellbeing. Up to the first Covid-19 lockdown Karen Sinclair worked Monday-Wednesday and Deborah Ashman worked Wednesday-Friday. During the Covid-19 pandemic, both worked full time. Karen Sinclair tells us, and it does not seem to be disputed, that in the job share period “Deborah had more of an oversight of the claimant’s work and also her general management”.

[45]The claimant reported to them up to her first suspension, from when she reported to Terry Collier, Deputy Chief Executive. Deborah Ashman and Karen Sinclair reported to Terry Collier. Terry Collier reported to Daniel Mouawad, who was the respondent’s Chief Executive.

[46]Jayne Brownlow was the Deputy Group Head, Community Wellbeing. She reported to Deborah Ashman and Karen Sinclair and in practice supervised Page 8 of 84 some of the claimant’s work, although never in a formal line management capacity. The claimant’s later statement that “Jayne is not my manager” is correct. In the same document the claimant also correctly acknowledges that Ms Brownlow was senior to her.

[47]We were not given a formal description of the claimant’s role but it seems that it was to operate as liaison or co-ordinator between local voluntary or charitable organisations (described by the claimant as the “third sector”) and the respondent.

[48]At the time she was recruited there was a colleague doing the same role, and it was intended that that colleague would concentrate on working with faith groups, but he left shortly after the claimant started. He was not replaced and the claimant took on his role in addition to hers when he left.

[49]It is agreed between the parties that in what follows there is no complaint whatsoever about the quality of the claimant’s work, and that the claimant worked hard during her time with the respondent (particularly during the Covid19 pandemic, when she and her colleagues were in the front line of addressing the consequences of Covid-19 and the lockdowns). Several of the respondent’s witnesses praised the high quality of the claimant’s written work.

[50]Arts and Leisure and Independent Living were other groups managed by Deborah Ashman and Karen Sinclair. From the start of the claimant’s employment until 4 July 2019 she was based at a desk in between those two groups, in “Room 310” in of the respondent’s head office: Knowle Green. THE FACTS – PART 2 – PROTECTED DISCLOSURES AND EVENTS TO THE CLAIMANT’S FIRST SUSPENSION (FEBRUARY 2019 – JUNE 2020) The first two protected disclosures

[51]In the first year of her employment the respondent accepts that the claimant made four protected disclosures (or groups of disclosures).

[52]The first two of these occurred very early on, within the first couple of months of the claimant starting work. Neither of these figure with any prominence in the claimant’s closing submissions on the cause of her detriments or dismissal, and it is sufficient for us at this stage to note the terms in which they are expressed (and conceded) from the list of issues.

[53]For the first protected disclosure this is: “The claimant says she disclosed that confidential and highly sensitive information was not being kept secure, was being discarded on the floor of areas where there was public access. The documents included such items as passports, licence applications, bank statements, benefit applications, marriage certificates and medical information etc. She says Page 9 of 84 that she made these disclosures to the respondent’s Data Protection Lead, Claire Williams from February to April 2019. She also took some documents to the respondent’s Head of Licensing. The disclosures were made verbally.”

[54]As far as we can tell, no-one ever referred back to this disclosure and the person to whom they were made (Claire Williams) is not said by the claimant to play any part in the alleged detriments.

[55]The second protected disclosure is: “The claimant disclosed that a member of staff in the Independent Living Team had complained that she was being bullied. The claimant made the disclosure to Deborah Ashman, initially verbally and then in a written statement. The alleged bullying included allegations that the complainant colleague must have been sexually abused as a child. The claimant made the disclosures in April 2019.”

[56]The claimant accepted that she had been encouraged by Deborah Ashman to make this disclosure in the face of what seems to have been reluctance on the part of the victim of the bullying to raise the matter herself.

[57]As with the first protected disclosure, this does not seem to have been referred to by anyone else again.

[58]We will, of course, consider these when looking at any allegation that they caused subsequent detriments (or dismissal) but for now we note that they seem to have created no obvious problems for the claimant, and even the claimant herself (who is otherwise highly critical of the respondent’s response to some of her protected disclosures) does not criticise the respondent’s response to these protected disclosures.

[59]We heard that at an early stage of her employment the claimant had offended both a local vicar and a vicar’s wife, resulting in complaints being made by them. The claimant said that she had checked with the vicar and that he had made no complaint. If a complaint was made, it was not documented by the respondent.

[60]The claimant’s contract provides for probationary reviews after one month and three months of employment. There is no documentation from the respondent on these reviews, and it is unclear if they were ever carried out. The best we can say about that is that there was nothing in the claimant’s behaviour in the first three months of her employment that warranted any special measures being taken at a one-month or three-month probationary review. The third and fourth disclosures Page 10 of 84

[61]The third and fourth disclosures both arise from “Project Lima”, which was the respondent’s work to develop the west wing of its office at Knowle Green into residential flats. This work was being carried out around room 310, where the claimant and her colleagues worked.

[62]The third protected disclosure is said to be (and accepted by the respondent as): “The claimant disclosed that on the top floor (where construction work was ongoing) there were significant breaches of fire regulations, including that staircases were blocked, fire doors were being propped open, there were inadequate extinguishers, alarms and lighting and no adequate evacuation plan for staff who could not use the stairs. The claimant made these disclosures to Deborah Ashman, someone in the Health and Safety department called Bill and the respondent’s Chief Executive. The disclosures were verbal and the claimant then sent some written documents to the Chief Executive. The disclosures were made in April and May 2019.”

[63]The fourth protected disclosure is said to be (and accepted by the respondent as): “The claimant disclosed that there was a significant risk of exposure of employees to asbestos in the workplace. The ‘dumb waiter’ was not sealed off whilst it was tested for asbestos and the loft was left open with a ladder despite the fact that it was a source of asbestos. The claimant made the disclosure to Deborah Ashman, verbally in May 2019.”

[64]It will be apparent from what follows that those dates are not correct, but nothing depends on that.

[65]In contrast to the first and second protected disclosures, these protected disclosures involved a wide range of council officials, some of whom would later play a part in the claimant’s dismissal.

[66]The third protected disclosure (concerning fire safety) seems to have its origins in concerns from staff (not at this stage protected disclosures) about fire precautions and escape routes during (and possibly following) the works associated with Project Lima, which were expected to reduce the emergency exit routes from room 310.

[67]There followed from this a brief letter to John Hesbrook (addressed as Facilities Manager) from Surrey Fire and Rescue Service dated 22 May 2019.

[68]While noting “a reasonable standard of fire safety” and that “the premises are not a high risk” the letter contained the following “further recommendations”: “Carry out maintenance on the older cross corridor doors as discussed. Page 11 of 84 Install an additional emergency light on the half landing from the third floor as discussed. Look into the dumb waiter from the third to the ground floor as this should be sealed. As discussed.”

[69]This was circulated by Mr Hesbrook to the respondent’s “MAT” (Management Team, comprising the chief executive, deputy chief executives and a limited number of other senior managers) and ultimately directly to the chief executive, with Mr Hesbrook saying “this is in relation to an inspection visit by Surrey Fire & Rescue Services to the West Wing 3rd floor office to ensure it provide staff with a safe working environment”. Room 310 either was or formed part of the west wing 3rd floor office.

[70]The three managers present in room 310 (including the claimant) were invited by the chief executive to put forward their views on fire safety in the office part of the west wing during Project Lima.

[71]One of the managers, Lisa Stonehouse, acted to co-ordinate their responses. The claimant’s input is recorded as “feedback from community development”. The combined response is sent by Ms Stonehouse to the chief executive on 11 June 2019.

[72]The claimant starts by saying she is grateful for the chief executive’s interest in the situation, but that the letter from Surrey Fire and Rescue Service does not, in her view, adequately address the situation. She attaches government guidance on fire risk assessments. She says that she considers room 310 to be high risk. A particular point she makes is that: “The staff working in room 310 currently have three means of escape. Reducing this to one could result in staff being trapped and unable to vacate the building safely. There is no plan for the staff to escape in the event of the squirrel staircase being compromised.”

[73]It appears her colleagues are equally or even more dissatisfied with the letter than she is, with one going so far as to say, “the letter received … provides no substance” and the other saying “it’s still not clear whether one exit is satisfactory or not”. All three of the managers in room 310 were concerned about fire safety during and following the Project Lima construction work and none were reassured by the letter from Surrey Fire & Rescue Service.

[74]On the same day, Richard Mortimer wrote to Siraj Choudhury asking for “an update on when the lobby works will be concluded”. This seems to include provision of new fire compliant doors and other fire precautions. Mr Mortimer concludes “I thought these works were supposed to have been completed in April? Are there any issues which have held these up?” Page 12 of 84

[75]Siraj Choudhury held the title of “Deputy Group Head, Commissioning and Transformation”. For the purposes of this claim the relevance is that he was the respondent’s project manager for Project Lima.

[76]A couple of days later, on 13 June 2019, Mr Choudhury replied to Mr Mortimer, with a copy to the chief executive and John Hesbrook. Mr Choudhury provides an update on progress with the lobby and fire protection works, and says: “The Fire lobbies being fire-ready is not all that is required here. The main issue here which is critical to the WW programme is the corporate staff issues which we have encountered. There has been a significant protest from the staff occupants of Room 310 (Leisure, Independent Living and Community Development). They are concerned about having only one escape route ... A meeting was held with those staff … The Fire Commander did an inspection and later provided a letter. He gave the proposed fire lobbies an all clear and made one or two minor recommendations. However, this letter (which was not the most detailed) did not satisfied those staff. These staff have also met directly with the Chief Executive and expressed their concerns. My understanding of the current position is that the CX has assured those staff that the WW team will not close off those fire routes in the WW until the minor recommendations have been satisfied. It is important that we take heed of the Fire Commander and also we should demonstrate to those staff that we have satisfied these points. John has set these works in motion and has indicated that they are to be completed by 21 June. There is one element involving sealing of the dumb-waiter which is to complete by 1 July. John will confirm these dates and consider whether they can be expedited. I am not saying that we won’t be ready for 21 June. However, I have emphasised … that under no circumstances should the WW fire routes be closed off to staff until:- - John is happy that the Fire Commander’s recommendations are satisfied - The custom-made windows and permanent doors are installed and fully painted and - The requirements in your email … are met - There has been clear communication of a date to those staff - with reasonable notice. A Fire Risk Assessment (FRA) was undertaken earlier in the year to cover the whole Knowle Green site. I suggested to John that perhaps we could ask that contractor to review that FRA to take into account the new fire lobbies. This update is required anyway and will provide FRA Page 13 of 84 consistency across the site. If this is agreeable, John should contact Alfred or Tom (RBC) to make those arrangements. I think it unlikely that those staff on the 3rd Floor will ever be happy with the situation - but we must do the best we can.”

[77]The claimant sees in this hostility from Mr Choudhury towards the staff in room 310, including her. She reads his comment that “the main issue here … is the corporate staff issues” as suggesting that staff including her are unnecessarily getting in the way of the development and delaying things thus, in her view, increasing costs. In her witness statement she says of Mr Choudhury that in this email “instead of prioritising staff he saw them as an obstacle and his email … makes clear his contempt for staff.”

[78]That does not seem to us to be either the only or the most natural reading of the email. It could be taken at face value: satisfying the staff of room 310 in respect of fire safety is now “the main issue”, and their concerns should be met by, amongst other things, strict restrictions on closing off any fire routes. If there is any sense of frustration here on the part of Mr Choudhury, it seems to be found in the final paragraph, not the main body of the email. We will consider this in more detail later. Perhaps it is arguable that this email presents staff as being an obstacle, but we do not see any reading of this that could properly indicate that he had “contempt for staff”. On the contrary, he seems to be engaged in a proper response to the concerns expressed by staff including the claimant.

[79]In response the chief executive replies briefly: “supportive of FRA refresh as this would assure 3rd floor staff”. In other words, the chief executive endorsed the proposal for a reviewed and updated Fire Risk Assessment, which was one of the things that the claimant has been seeking.

[80]Further correspondence suggests that this FRA was commissioned almost immediately by John Hesbrook (“I have instructed Runnymede to have [the contractors] who produced our … FRA to update this document to reflect the changes to the west wing”.) This is met with approval by the chief executive.

[81]In early July the fourth protected disclosure and the asbestos issue superseded the fire safety concerns in urgency, and resulted in staff being moved from room 310.

[82]The claimant was present on 4 July 2019 when a contractor who was carrying out works told her that he could not drill through a wall where the dumb waiter was in the third-floor lobby because it was “riddled with asbestos”. The claimant immediately reported this to Deborah Ashman who in turn, according to the claimant “immediately recognised the issue”.

[83]Deborah Ashman contacted John Hesbrook. According to the claimant’s account John Hesbrook said that he had suspected asbestos was present in Page 14 of 84 the dumb waiter and had sent a sample for testing. On doing so it had been confirmed as asbestos but he had not take steps to seal the area because he did not think it was asbestos. She said that he said he had also found possible asbestos in the loft area and sent it for testing, but was awaiting for results. What actually happened is not clear nor a matter we need to resolve for the purposes of this claim. In her witness statement, Deborah Ashman limits herself to saying “I was not satisfied with the lack of clarity in the answers”.

[84]The claimant says that Deborah Ashman immediately called the other managers in room 310 down to her office to tell them what the claimant had said. The claimant and one other manager expressed the view that staff should be immediately moved from room 310. Deborah Ashman went to the chief executive. Staff working in room 310 were sent home for the day and new accommodation was found for them to start work in the next day.

[85]The claimant went to some lengths in her statement to set out a detailed and ongoing critique of the respondent’s handling of this problem, but as her statement makes clear, almost all of what she mentions was unknown to her at the time. She says, “until disclosure I believed that although we were moved … the asbestos was not the type that needed removal and there was none in the loft or anywhere else”.

[86]Her position is that unbeknownst to her and her colleagues the situation was far worse, and handled far worse, than it had appeared at the time.

[87]She says that possible asbestos in the dumb waiter had been identified as early as May 2019 and again reported by contractors in June 2019, and that someone (not John Hesbrook or anyone later involved in the alleged detriments) had engaged in an at best amateur and at worst dangerous attempt to assess whether it was asbestos.

[88]She describes the respondent as acting against the advice of its health and safety officer, William (or Bill) Cox. She says that the presence of asbestos should have been reported to the HSE but that there is no evidence that this was ever done, and that staff were misinformed about the presence of asbestos and possible risks.

[89]In general, the theme is that on receiving disclosure for the purposes of her employment tribunal claim, the claimant had reached the conclusion that the presence of asbestos was being covered up by various council officials including John Hesbrook and Siraj Choudhury.

[90]Neither Mr Hesbrook nor Mr Choudhury gave evidence to the tribunal. The claimant was unaware of these matters at the time she made her protected disclosure in respect of asbestos. Her disclosure was that “that there was a significant risk of exposure of employees to asbestos in the workplace”. We will come later to what the consequences of that may have been for her and how, if at all, the disclosed material may be relevant to that. Page 15 of 84

[91]We do not think that the claimant is suggesting that this disclosed material shows that either Deborah Ashman or the chief executive acted improperly in respect of the asbestos and both seem to have acted with a commendable sense of urgency on the claimant making her disclosure in respect of asbestos.

[92]Shortly after this the claimant points to an instance of what she describes as being removed from an email chain. On 16 July 2019 Lisa Stonehouse emailed John Hesbrook asking for an update on the asbestos testing or work, and copied in two other managers (not including the claimant). John Hesbrook responds to Lisa Stonehouse, copying in the other managers she did. The claimant does not criticise Lisa Stonehouse for not including her in the original email, and in those circumstances we do not see how there can be any criticism of Mr Hesbrook for not including her in a reply to an email she had not been sent in the first place.

[93]There is also a note of what seems to be an action list recording “Provide snagging list and actions” with the entry “SC [Siraj Choudhury] has emailed Lisa Stonehouse + [another manager] to confirm any building or refurbishment items outstanding from Project Lima. Actions to be agreed.” It is not clear when this dates from, although it references actions in May 2019.

[94]In neither of these disclosures is the claimant a lone voice raising concerns. The third disclosure was a joint effort from the three managers in room 310, with another manager in the room taking up the role of spokesperson.

[95]For the fourth disclosure, it was only the claimant who had identified and disclosed the risk of asbestos being present, but having done so she seems to have been supported by her immediate work colleagues, including Deborah Ashman who took the matter straight to the chief executive. The probationary period review and possible issues with the claimant’s behaviour at work

[96]It is common ground that the claimant passed her six-month probationary review during a meeting held with Deborah Ashman and Karen Sinclair on 7 August 2019. However, the parties do not agree on the documentation produced following that review or the significance of the review for the claimant’s claim.

[97]The claimant contends that the reservations expressed in the probationary review documentation were never shared with her nor were they contained in the version of the probationary review document that she signed. She says they were added after her signature and that the document is therefore falsified.

[98]For the respondent, the fact that the claimant passed her probationary period after making her first five protected disclosures suggests that those protected disclosures cannot account for or be the cause of the detriments she later alleges. The respondent argues that if, as the claimant suggests, they were illPage 16 of 84 disposed to her following the first five protected disclosures, she would not have passed this probationary review. The respondent points to the comments in the probationary review (“picking battles”, “how far to take a point” and “boundaries training”) as foreshadowing some of the matters that later contributed to the claimant’s dismissal.

[99]For our purposes the question is less whether these comments were in the form the claimant signed, and more whether they represented an accurate account of the views of the claimant’s managers at the time of the probationary review. The claimant’s position was that this was a false concoction, presumably with a view to justifying the eventual decision to dismiss her.

[100]There are two indications that suggest to us that these were an accurate account of her managers’ views at the time.

[101]The first is the wider question of the claimant and “boundaries”. This has sometimes been described as the claimant “desk surfing” or interfering with other departments or areas outside her area of responsibility. Sometimes, but not always, this was with official sanction (see below for the question of the claimant’s intervention in disputes amongst staff in the independent living team).

[102]The claimant had (at least at the time, she does not describe herself in the same way since her experiences with the respondent) an outgoing personality. We can see at least from the protected disclosures accepted by the respondent that she had a well-developed sense of right and wrong, and was not shy of calling out the wrongs she saw. In each of the first four protected disclosures she was intervening in matters which were outside her job role. It was not part of the role of a community development manager to intervene in GDPR issues in another department, bullying issues in another department, fire safety or asbestos regulation. That she did counts only to her credit, but it also speaks of her not being afraid to get involved in matters that are outside her remit, whether they amounted to protected disclosures or not.

[103]The second is the claimant’s own account of the position after the probationary review: “I had passed my probation in August 2019 and had been given an increment in pay. I had also previously been given a car allowance in recognition of the good performance. The only suggestions were about boundaries and battles. This was August and the month after the asbestos protected disclosure which was also the same time as the fire issues and the SPAN alarm issue had only just occurred. I believed that the comments were telling me to now shut up and don’t ever raise any other issues. It suggested to me that there had been a fallout behind the scenes and that at that time DA had had my back but I now I needed to keep my head down and get on with it. There was never any gratitude or appreciation for protecting staff or clients.” Page 17 of 84

[104]Thus regardless of whether they were documented in the form at the time she signed it, the claimant acknowledges that around that time there was discussion about “boundaries and battles”.

[105]On that basis we consider that the comments in the probationary period review were an accurate account of her managers’ views at the time.

[106]One matter that we will later need to consider is how it was that the claimant went from passing her probationary period (albeit with some reservations being expressed) to her managers later declaring her to be unmanageable. The respondent says that despite the claimant passing her probationary period, reservations were expressed about her behaviour at that time and there were a series of individually minor but when taken together persistent issues with her behaviour at work. We have already touched on the question of complaints being made very early in her period of work for the respondent.

[107]The issues with the claimant’s behaviour appear most clearly in Jayne Brownlow’s statement. These will require further consideration but for now we note that Jayne Brownlow refers in the period to the following matters:a. “Desk surfing”, which we take to be an aspect of the interference and boundary issues alluded to above: the claimant generally interfering with matters outside her remit.

b. Personal matters intruding into work, such as questions of the claimant’s car being untaxed (the claimant took exception to any suggestion that it was also uninsured), and rescuing her boat from flooding.

c. Poor or disorganised record keeping in respect of administrative matters such as completing timesheets or maintaining an accurate work diary. Her desk being left untidy.

d. Refusing to carry (or losing) a “people safe device” – a form of alarm the respondent issued to lone workers for safety purposes.

e. “Extreme fatigue” resulting in the claimant falling asleep at her desk around the end of 2019. According to Jayne Brownlow this included both the claimant going home during the work day and falling asleep at work, and the opposite of that: the claimant refusing to go home when identified by Jayne Brownlow as unfit for work. The claimant at least partly acknowledges that this happened, since it is her case that the respondent did not properly respond to her falling asleep at work. She says “I … started to feel very tired in the early afternoon and fell asleep at work. Jayne Brownlow was concerned about me and my tiredness and I had blood tests to try and ascertain what the issue was.”

[108]One thing we can be clear about is that Deborah Ashman and Karen Sinclair were not so alarmed by the claimant’s first four protected disclosures as to use Page 18 of 84 the probationary review as a means of ending the claimant’s employment. If it was the case that they were ill-disposed to the claimant as a result of her first four protected disclosures, they would have had the ideal opportunity to dismiss her at this probationary review.

[109]At this point we note that:(i) the claimant did not describe herself as a whistleblower until much later, after the sixth alleged protected disclosure,

(ii) at that point and until after her dismissal there was no real suggestion by the claimant that she was a whistleblower in respect of anything other than the sixth alleged disclosure, or that she had been disadvantaged by the first five protected disclosures, and

(iii) Deborah Ashman was actively involved in supporting the claimant’s actions for two of the first four protected disclosures, and for them may have had as much claim to be a whistleblower on those matters as the claimant did. The fifth protected disclosure(s) – Span alarms

[110]The respondent accepts that: “The claimant disclosed that the personal alarm system and equipment (SPAN), used by the vulnerable and elderly, was not being routinely or properly serviced such that an alarm had failed and could fail again in the future. She made a verbal report to Karen Sinclair and Deborah Ashman at some point after May 2019 and before the claimant moved office.”

[111]There is some ambiguity to what “before the claimant moved office” means. The respondent has taken it to be 4 July 2020, when the claimant and her colleagues all moved because of the possible asbestos problem. The claimant says it is November 2020, when she says she was moved to work by herself in a glass office in the reception area at Knowle Green.

[112]“Span” or “SPAN” is the Spelthorne Personal Alarm Network. It is operated by the respondent’s independent living service. It is an alarm system for elderly or vulnerable people. The service user has a pendant with an alarm button which can be pressed in the event of a fall or other emergency. This could then be used to alert relevant services that the individual was in distress or had suffered an accident.

[113]It is common ground between the parties that at least by mid-2019 and probably before this the team at the respondent implementing the Span alarms was dysfunctional. For the period in which the claimant sat adjacent to the independent living department she describes (and it is not disputed) being Page 19 of 84 giving authority to intervene in stand-up rows between members of the team if there was no manager present in the team to calm things down.

[114]Stephen Mortimer-Cleevely was appointed as manager of the independent living service on 8 August 2019 (by coincidence the day after the claimant’s probationary review meeting) with a remit that included sorting out the Span system and team.

[115]Mr Mortimer-Cleevely was the first of the respondent’s staff to openly criticise the claimant, it being his view that she was unnecessarily interfering with his team and the operation of the Span system.

[116]Exactly what issues the claimant raised with the Span system and when they were raised were somewhat complicated. These complications were amplified by the claimant not having first-hand knowledge of any of the problems and, as with the fourth disclosure about asbestos, learning more about the problems (and considering them to be more extensive than she knew at the time) through disclosure in the tribunal process.

[117]In her witness statement the claimant describes working late one evening with Lisa Stonehouse, and getting a call from the police who had been called by a service user when their alarm seemed to be ineffective. After consulting with Deborah Ashman, Lisa Stonehouse and a colleague went to visit the service user.

[118]The claimant references in her witness statement a sequence of emails relating to an incident on 23 April 2019. There is no suggestion that any of this involved a verbal report to Deborah Ashman or Karen Sinclair as described by EJ Eeley in respect of the fifth protected disclosure.

[119]The claimant’s witness statement moves on to concerns she raised directly with Stephen Mortimer-Cleevely. These must have been following his appointment in August 2019, but would not be the fifth protected disclosure as they were not verbally reported to Deborah Ashman or Karen Sinclair.

[120]In addressing this we have also considered the claimant’s protected disclosure statement. The claimant addresses this protected disclosure under point 2.7 of her protected disclosure statement. In this statement she starts by referring to a member of the staff on the Span team persistently raising concerns with her. The claimant says: “I completely agreed with her and raised it with Karen Sinclair who managed the team. She did not like me raising this concern and got very aggressive with me telling me to pick my battles.”

[121]In that protected disclosure the claimant refers to others raising concerns about the Span system. She says, “KA continued to tell me to not get involved and called me a ‘shit stirrer’.” Page 20 of 84

[122]In her witness statement for this hearing the claimant says: “He [Stephen Mortimer-Cleevely] was very polite and pleasant to my face, almost overfriendly, but then went straight to KS and complained. He said I was interfering and that it was none of my business. KS met with me and was very abrupt telling me to stop interfering. I explained it was a safeguarding issue and a real concern and I was trying to help in the absence of the SPAN alarm manager being able to inform him of the circumstances of the two incidents. However, KA really lost her temper. It was shocking and she started shouting and calling me names including calling me a shit stirrer.”

[123]The ambiguity in the definition of when the fifth protected disclosure happened is unfortunate, but the respondent has accepted without any reservation that it occurred. The only disclosure referred to by the claimant in her witness statements that is a verbal disclosure to Deborah Ashman or Karen Sinclair that the Span system “was not being routinely or properly serviced such that an alarm had failed and could fail again in the future” is this conversation with Karen Sinclair, and it must have happened after Stephen Mortimer-Cleevely was appointed to his role, which in turn must have been before the office move in November 2019, not the office move in July 2019.

[124]Karen Sinclair recognises the occasion that the claimant describes, although she does not accept the claimant’s characterisation of this occasion, and does not accept that she suggested the claimant was a “shit stirrer”. That conversation took place at or on the way to or from the respondent’s social club and we will call it the social club conversation. She also recognises a conversation about “picking battles”, which she places as being at the time of the claimant’s probation review on 7 August 2019. It appears from the claimant’s own evidence that picking battles was mentioned at the probationary review meeting.

[125]There was considerable argument at the hearing about whether the claimant complained of two or three incidents in relation to the Span alarms and whether they extended through to November 2019. What is clear is that the disclosure identified by EJ Eeley and conceded by the respondent was the claimant’s disclosure to Karen Sinclair during the social club conversation, and only that.

[126]After that conversation but before the end of 2019 the claimant was moved from working alongside the independent living team to working in a glass-fronted office on her own. 2020 - Covid-19

[127]Much of what follows arises in the context of the Covid-19 pandemic and associated lockdowns, which (if there was any doubt about the matter) elevated the work of the claimant and her colleagues (including her managers) to being Page 21 of 84 of critical importance. While the claimant (and her mangers and partner organisations) had always had an essential role for the most vulnerable residents of Spelthorne borough, that role was substantially elevated during the Covid-19 pandemic and its associated lockdowns. Whatever the respondent’s criticisms of the claimant may be we have to acknowledge that she (as did her managers and partner organisations) rose to that challenge in a way we will hope will be remembered by residents long past this decision.

[128]No-one who went through that will forget the stresses and for many the real trauma of that period. Those in the front line of the public response such as the claimant, her colleagues (including managers) and the third sector organisations she worked with deserve our real gratitude. Regardless of the outcome of this case there has been no criticism of the claimant’s work in the pandemic and whatever she did during this period appears to have been done in a whole-hearted commitment to the public and third sector organisations that were essential to Spelthorne’s response to the pandemic. That is, of course, an entirely separate point to whether she was subjected to detriments or dismissal for making protected disclosures.

[129]Around the start of the first Covid-19 lockdown at the end of March 2020 Deborah Ashman and Karen Sinclair moved from a 50/50 job share to both working full time. According to the lockdown rules then in force, they were part of a “bubble” and permitted by the respondent to work from Knowle Green. Stephen Mortimer-Cleevely was part of that bubble and could work from Knowle Green. The claimant was not part of the bubble and could not work from Knowle Green. For the rest of her time with the respondent she worked from home or in the community with the third sector groups she worked with. Jayne Brownlow was not part of the bubble and was not permitted to work from Knowle Green. She had been overseas on holiday at the start of the lockdown so was required to self-isolate on her return to the United Kingdom, by which time the respondent’s lockdown operations and protocols had become established.

[130]Working from home was not easy for the claimant as she did not have a home broadband connection. The respondent would not pay for a home broadband connection for her, but instead provided her with a mobile phone that she could use as a hotspot to connect her laptop to for internet access. Everyone agreed that this was a less satisfactory means of internet access than home broadband. The hub and the loan of food bags

[131]The respondent set up an emergency “hub” in its leisure centre. The hub was to be central to relief efforts led by the respondent during the Covid-19 pandemic and associated lockdowns, part of which would be the provision of food and other essential supplies to those who needed but could not otherwise access it. Page 22 of 84

[132]In her role the claimant worked with local food banks. With the availability of food being uncertain and the respondent not having full food reserves she was asked to contact local food banks to obtain food for the hub. Stanwell food bank stepped in and provided the respondent with 50 bags of food. The basis on which this was done – whether it was a loan or a gift - would prove controversial later. It may not have been so clear at the time but later it became clear that the food bank regarded this as being a loan rather than gift to the respondent.

[133]A “loan” of food or food bags seems at first glance to be a difficult concept. Surely the point of such a loan is that the food should be used, not stockpiled for display purposes and then returned? The answer to that is that the loan did not mean the exact same food need to be returned undisturbed. The food bank’s understanding was that the respondent would later return the favour or make good the loan by giving it equivalent but not necessarily identical food or food bags. Quiz nights

[134]As part of an effort to maintain morale and team spirit with people working remotely during the pandemic the respondent established a quiz night as an online social event. The claimant attended the quiz nights. Phone calls on 15 June 2020

[135]Deborah Ashman and Karen Sinclair had a phone call with the claimant to discuss work matters on 15 June 2020. They were both in their office at Knowle Green. Stephen Mortimer-Cleevely and another colleague were nearby. There is a dispute about whether they were on speakerphone throughout or just towards the end, but it seems likely that they were on speakerphone throughout, since they were both in the same room and both participated in the conversation with the claimant. This was a long phone call, lasting up to two hours.

[136]Karen Sinclair was taking notes of the call. These start with discussion of the claimant’s role in respect of volunteers, and moved on to the IT issues the claimant was having. It appears that as part of the solution to those IT problems the claimant wanted to be able to work from Knowle Green one day a week. The notes record that Jayne Brownlow was working with the claimant on this, that a business need to return to the office was necessary and that any return would have to be subject to strict conditions. The claimant goes on to say that her IT issues (principally the unreliability of connectivity through her mobile phone) made her feel excluded from the quiz last week. The notes record “TR upset that she is being made to feel the only one with IT issues at home.” Discussions move on to other matters in relation to volunteers and local community groups, including the food bank who had loaned the food bags.

[137]As the notes record, “What started as a small issue then escalated.” The notes continue: Page 23 of 84 “As Tracey had mentioned the quiz in the context of feeling isolated from work colleagues, and we had been saying she was included and we had tried to ensure she could join, Karen said very calmly to Tracey that she should perhaps be a little ‘sensitive’ (the exact word used) to issues at the moment. Karen discussed sensitivities around BME issues and equality at the moment and appropriateness of a comment made during the quiz a week before last.”

[138]It is the respondent’s case that the claimant had made and repeated a comment that “could be interpreted as racist” during one of the quiz nights. It was also the respondent’s case that Deborah Ashman had picked up on this at the time with the claimant and that others, including Stephen Mortimer-Cleevely, had complained about it.

[139]While the claimant recollected the event and comment in question, she had a different recollection of what the comment was and vigorously disputed any idea that it could be considered to be racist. It is not necessary for our decision for us to resolve the dispute on what was said at the quiz night.

[140]The claimant thought that she was being called racist, and strongly objected to that. She was not placated by her managers’ insistence that no-one was calling her racist.

[141]The notes show the conversation moved on to another topic: “Tracey started to talk about other issues to do with people accusing of her about issues to do with other matters. It went off and started to escalate (the conversation). Deborah tried to placate and actually said she didn’t know how to deal with it. Deborah tried to calm and placate Tracey for at least ten minutes. Deborah was asked about bubbles and reiterated it wasn’t our choosing - the direction had come from the Chief Executive. There was an accusation of a clique that Tracey was being left out of. She thought there was a lot of gossiping etc. Deborah reassured her this wasn’t the case, as Deborah had challenged her on the night. Tracey got so upset that Deborah said at 12 noon she needed to end the call and would ring her back.”

[142]Karen Sinclair describes these elements of the call in the following way in her witness statement: “As we continued to discuss the Claimant’s behaviours, she became extremely aggressive and abusive towards us. She shouted at us, disrespecting us as her line managers and was abusive in the way she talked to us. She kept focusing on how she had perceived that I had called her a racist. I had never called her a racist but that she needed to Page 24 of 84 be mindful of current issues and how comments could be perceived. The Claimant appeared to be fixated on that I had called her a racist ... The Claimant also sought to talk about her view that she considered other people were accusing her of being involved in matters that were not related to her. Though I cannot fully remember what this is about now. The Claimant continued to rant about this, and that she felt excluded with who had been included in “bubbles” … Deborah tried to calm her down, but the Claimant was not listening and continued to be very emotional ... The Claimant then went silent on the call, and we were asking if she was still there. At this point she started talking directly to each one of us and tried to get Deborah and myself to disagree with each other. It appeared as if the Claimant was trying to manipulate the situation into her chastising us for our legitimate management call about her behaviours. I was reminding the Claimant that her comments about the way a colleague was dressed was not relevant, but the Claimant kept ignoring me. Deborah was trying to keep the Claimant calm, but she was also being ignored. We ended the call as no progress was being made and to give the Claimant an opportunity to calm down. We ended the call at 12 noon but said that we would ring the Claimant back, after she had time to calm down and reflect on the situation.”

[143]The respondent’s account of the call is not substantially disputed by the claimant. She accepted that she had “overreacted” to the point that had been raised. We note that this call took place during the pandemic at what was a time of great national stress, which would no doubt be felt most keenly by those such as the claimant and her managers who were in the front line of the pandemic response. In that context, the claimant misbehaved and overreacted during this call, leaving her managers in a state of shock and in a position where they had to end the call.

[144]The call was overheard by Stephen Mortimer-Cleevely and another manager, who were working in a neighbouring office.

[145]Directly after this the claimant telephoned Jayne Brownlow. Her (Jayne Brownlow’s) account of the call is: “The Claimant phoned me on 15 June 2020, following a call that she had had with Deborah and Karen. In this call she mentioned that she believed that Karen and Deborah were calling the Claimant a racist due to comments she had made at a quiz. The Claimant was very upset I was struggling to understand what the Claimant was talking about or how she expected me to react as she was difficult to follow as she was very emotional. In my opinion the Claimant was looking to me to back her up and trying to gain my support in her denial of this claim.” Page 25 of 84

[146]As they said they would, Deborah Ashman and Karen Sinclair rang the claimant back an hour or so after that call had ended, but this second call went no better. Karen Sinclair says: “… the Claimant continued to be aggressive and ‘rant’ on this call. Including that she was upset about comments that she alleged were being made about the Council not assisting people who were shielding. Deborah challenged her on this but I do not recall the Claimant expanding on this other than she just got upset … The Claimant was very emotional and was crying and I remember Deborah was also saying that the Claimant had done and was doing good work in the community. At some point in the call the Claimant refused to speak to or acknowledge me and only respond to Deborah. The Claimant appeared to interrogate every word that Deborah said and it felt like a unprofessional and disrespectful interrogation of senior managers ... … this call, like the first, was not making any progress, with the Claimant continuing to be emotional, confrontational and aggressive towards us. We ended the call.” The follow up emails

[147]Later that day both Deborah Ashman and Karen Sinclair spoke to Terry Collier about what had happened on the calls. Towards the end of the day Karen Sinclair sent an email to Terry Collier and someone from HR including the following: “Terry, Deborah and I briefly had a discussion earlier regarding a conversation which escalated today, between Karen, Deborah and TR. I would like to formally register my concern and our joint distress over the effect this conversation - a legitimate work conversation between an employee and joint managers - has had on us. We took numerous notes, however it's difficult when the conversation lasts in excess of two hours and includes the other party relentlessly throwing information at us in a degree of hysteria. At one stage Deborah actually said, 'I can't deal with this, I feel like I am in a court'. Stephen and [the other manager] were in the room (IT issues meant the call was on the phone). They heard the point that TR went completely silent on the phone to me and then started to talk to Deborah-in effect divide and rule or, as they put it, 'running to dad when you don't get the right answer from mum'. They are both very angry about the way TR spoke to us both and said that in the private sector she would have been told the conversation was being terminated as her behaviour was unacceptable. Page 26 of 84 Deborah has left feeling very upset and I too am distressed and about to go home. I would like to agree a way forward with HR support, as I feel very anxious that a case will be being built against us, somewhat unfairly. I would like significant support on how to deal with this. Counselling is not a solution - the issue is how to legally protect both ourselves and the Council from potential challenge.”

[148]Terry Collier met Deborah Ashman and Karen Sinclair the following day to discuss this. He says (and we have been given no reason to doubt this): “The first part of the meeting was the both of them relaying what had taken place during the meeting with the Claimant, both on the length of the conversation, but also the significant emotional impact that it had had on the both of them. They also relayed that they felt due to the behaviours of the Claimant that their relationship of trust and the working relationship itself was significantly damaged if not broken. I was concerned that this possible breakdown would have an impact the operation of the Team and the work they were all doing. At this meeting I said that I would take this away and discuss with HR on what options we had on how best to work through this situation.”

[149]After this meeting Deborah Ashman and Karen Sinclair sent a further email to the same recipients. It was from Deborah Ashman’s account but is signed off as a joint email from both her and Karen Sinclair. It says: “Dear Both Thank you for feeding back to us that this is part of a discussion today. However we would like to add that, on reflection, the way we were left to feel yesterday after what we would describe as Tracey's hysterical rant, is tantamount to bullying. The way she felt able to speak to us for almost two hours in total was totally unacceptable, ranting, being completely unreasonable, shouting, twisting everything around. In any other scenario it would be described that the relationship between manager and employee has broken down. At a point during the tirade I was so worried about Tracey's mental health that Deborah put the phone on speaker so the others on the far side could be witness to part of the conversation. Karen did not sleep at all last night because of the profound effect the discussion had on her. Witnesses said in their view she had been bullying both of us, wearing us down with the tirade and being manic, manipulative and bullish. Page 27 of 84 Would it be possible after your meeting today to arrange a meeting with us please?”

[150]Mr Collier says: “I was aware that Karen and Jayne were going to speak to the Claimant further about her recent behaviour towards them, but also issues around the Team dynamic, especially around how the Claimant interacted with her managers, and other behaviour issues and complaints that had been raised.” Disbanding the hub

[151]Around this time the respondent was looking to disband the hub, it having served its purpose. Surplus materials (which by then included things like small electrical appliances) had to be disposed of or distributed to local organisations for the benefit of the wider community.

[152]It was at this time that the question of returning the 50 food bags (or their equivalent) to the food bank arose. There were considerable complications in the evidence as to whether the food bank was or was not expecting anything back, and how this was or was not communicated, but what matters for our purposes is how that gave rise to the sixth alleged protected disclosure and what the consequences of that were or were not. The call on 22 June 2020 and the sixth alleged protected disclosure

[153]The claimant called Jayne Brownlow on 22 June 2020. This is what Jayne Brownlow says about the call: “On 22 June 2020, the Claimant phoned me. The purpose of her call was to demand information about the food bags and if these were being replaced. The Claimant was worked up and agitated from the start of the conversation. She was challenging me on the decision to keep the food bags and the fact that the Council was not replacing the 50 food bag contents that had been provided by the charity. I explained that it was my understanding that the food bags had subsequently been gifted when we had attempted to return them to the charity. The Claimant repeatedly said the Council should be returning them as a matter of principle. I repeatedly tried to explain that we had tried to return them, but that the charity was not in a position to accept them and this made sense to me as they were run off their feet delivering meals to the community and did not have capacity to store them. The Claimant did not accept this explanation. It was my belief at this point that the Claimant had lost control. Page 28 of 84 I was shocked and extremely offended by the Claimant’s unprofessional, aggressive and abusive behaviour towards me. I was struggling to remain calm in the face of the Claimant’s behaviour. The conversation was now repeating itself and I was having difficulty in keeping calm in the face of the Claimant’s behaviour. Every time I tried to talk, the Claimant would start to speak over me. I gave the Claimant numerous warnings that I was going to terminate this conversation as I felt she had become completely inappropriate and abusive in the manner she was talking to me. There was no change in the Claimant’s behaviour so I hung up the call and told her I would call her back when she had calmed down. I took the Claimant’s comments and insinuations to mean that she had no belief that we shouldn’t keep the food bags, but that it was something the Council should do due to her personal belief or moral obligation and not for any legal reason. It felt like the Claimant was trying to force me to take a course of action that I did not believe we needed to based on the information I had at the time. Immediately following this call, I spoke to Deborah and Karen about the incident with the Claimant and how it made me feel, as well as the position with regard to the food bags as I understood it. … I contacted the Claimant about an hour later, after the initial call to speak about what had happened and to discuss her behaviour during the previous call. However, the Claimant quickly became angry towards me and continued to be rude and make accusations about my honesty and integrity. I managed to explain that I had spoken with Stuart Mann and that he didn’t have a recollection of who had the conversation with the charity about not returning the food bags, but that they had been taken off the lorry before they were to be sent back to the charity. The Claimant accused me of changing my story and that she had seen the food with her own eyes. I also explained the amount of food that the Council had purchased and was being shared to the community. I was trying to hold a conversation about how she had previously spoken to me and the inappropriate behaviours, but the Claimant was fixated on only discussing the food bags. The Claimant refused to accept anything I was saying to her about her behaviour and was not listening to me. At this point I realised that the conversation was not going to achieve anything and the Claimant was recognising her previous behaviour issues and was just getting more agitated and aggressive in speaking to me. I found this conversation extremely difficult and upsetting having the Claimant call my integrity into question. Page 29 of 84 I told the Claimant that she was being aggressive towards me and that she needed to stop however she didn’t listen and just carried on. I gave her due warning that if she didn’t stop I would end the call. I told her again, that Karen, Deborah and I, as the managers had decided that the Council would offer food amongst the community centres and the food banks. It was not the Claimant’s place to make this decision in this instance. The Claimant then continued to say that I was being dishonest and that she was going to ring Stuart Mann and speak to him directly because he was “straight and honest”, further implying that I was lying. This was extremely distressing as I and the team as a whole were trying to do the best for our community with the support of partners such as the charity. The Claimant saying that I was lying and dishonest and this really shook and upset me. As the conversation had ceased to become productive and had degenerated considerably in the interactions from the Claimant, I gave her good warning that I was going to terminate this call. The Claimant’s behaviour did not change so I ended the call. … I typed up a note of the conversations I had with the Claimant and provided this to Karen and Deborah on 23 June 2020. I found the whole event extremally distressing and disturbing. I was very upset by the whole experience and by what the Claimant had said to me and accused me of. I didn’t want to have further conversations with the Claimant as I did not want a repeat of this behaviour.”

[154]As Ms Brownlow says, she provided a written account of the calls to Deborah Ashman and Karen Sinclair on the same day as the calls themselves, concluding “I found the whole experience very distressing and disturbing and it left me very upset. I would not like to repeat this.”

[155]The claimant also provided a written account of the conversations to Deborah Ashman and Karen Sinclair. The email accompanying it says “I am aware that you have been brought into an incident with a half story. I attach the accurate version. I do not want to take this further (as a complaint) but remain unhappy about events. Please can you read this when you get a chance. I am not expecting a detailed reply and am carrying on carrying on.”

[156]In our discussion and conclusions later in this decision, we find that the claimant’s written account of these conversations is her sixth alleged protected disclosure(s). The respondent disputes that this contained any protected disclosures, and for that reason we have considered the written account in detail in our discussion and conclusions. These set out the written account in Page 30 of 84 full, highlighting the elements that are said by the claimant to be protected

[157]The significance and consequences of these conversations will require further consideration, but for now we note that in the space of about a week (15 June and 22 June 2019) the claimant had had sustained rows in telephone calls (in each case spread across two calls with a gap in between) with the three most senior managers in her department. The managers in question had reported themselves to be profoundly shocked by what had happened. The claimant was perhaps less affected, suggesting that she was “unhappy” with her calls with Jayne Brownlow, but she took great exception to any suggestion that she was racist or had made a racist remark.

[158]The sixth alleged protected disclosure(s) was the claimant’s account of her calls with Jayne Brownlow, and so followed immediately after these two sets of difficult phone calls. Follow up on 23 June 2020

[159]Early on 23 June 2020 Karen Sinclair forwarded the claimant’s account of the calls with Jayne Brownlow to Terry Collier and HR, saying “This is what upset her yesterday.”

[160]Terry Sinclair says: “Following this email, it was clear that there was an ongoing and serious issue with the working relationship between the Claimant and her managers, this needed to be investigated to fully understand the nature of this breakdown, what were its causes and if the breakdown was irretrievable. I wanted to understand what the situation was so I or if necessary another senior officer could fairly assess the overall situation.”

[161]On 23 June 2020 Karen Sinclair also arranged a call with the claimant and Jayne Brownlow. This call did not help to resolve matters. Jayne Brownlow says: “During the rest of the call with the Claimant we tried to discuss the issues with the behaviour. Karen led most of this call. During the conversation the Claimant became very aggressive and was shouting, the call was on speakerphone. Due to the Claimant continually raising her voice the call became overheard by others in the same room. The Claimant did apologise when she was confronted about shouting during the call, she did not apologise about anything else. She said that she was a passionate person about what she believed in. The call deteriorated as the Claimant was not listening, and how frustrated I found this. We challenged the Claimant on the affect the Claimant had on people, but all the Claimant wanted to focus on was her view that I had forced the Claimant to say something she considered untrue.” Page 31 of 84

[162]No immediate action was taken by Terry Collier. We have seen that by 26 June 2020 the respondent was seeking external legal advice on the situation, but privilege has not been waived by the respondent in respect of this advice. Return of the food bags

[163]At some point between 26 and 30 June 2020 the respondent attempted to make good on the return of equivalent goods to the food bank. In later correspondence the claimant was highly dissatisfied with what was given to the food bank and the manner in which it was transported, although we find below that any protected disclosure in respect of the food banks is limited to what was in the claimant’s note of 22 June 2020, and this does not mention the amount of food returned or the means by which the food was returned to the food bank.

[164]On 30 June 2020 the manager of the relevant food bank wrote to Jayne Brownlow saying that she was disappointed with what she had received (especially in comparison with what had been given to another organisation), saying also that the bags were covered in dirt and delivered in wheelie bins. The manager of the food bank concludes her email saying: “I appreciate you needed to vacate the leisure centre fast but the care taken in the food transportation worries me. I must admit I do not often say this but I am disheartened by the lack of respect given for supporting the borough.”

[165]So far as the return using wheelie bins was concerned it was the claimant’s position that Jackie Taylor had taken it upon herself to carry out the return and had personally delivered the food in wheelie bins which were the well-used (and therefore unhygienic) wheelie bins previously used at the hub.

[166]Jackie Taylor did not dispute that she had first hand involvement in the return, nor that the food was returned in wheelie bins, but it was her position that they were returned in brand new (presumably therefore hygienic) wheelie bins that she had access to as she oversaw the respondent’s refuse service.

[167]We do not need to resolve this conflict of evidence for the purposes of this decision, but we note the different positions of the parties and have recorded them here as the way the food had been transported was a significant part of the claimant’s later criticism of the respondent’s conduct towards the food bank. THE FACTS – PART 3 – DETRIMENTS (JULY 2020 – JANUARY 2021)

[168]While there are, on the claimant’s case, some aspects of some alleged detriments that occurred earlier, in general the transition between June and July 2020 marks a divide between the period of protected disclosures (or alleged protected disclosures) and the period of alleged detriments. Page 32 of 84 Suspension and investigation

[169]The first of these alleged detriments, and one that sets the scene for many of the later alleged detriments, is the claimant’s suspension and the commissioning of an investigation by the respondent. These go together.

[170]The alleged detriment of suspension and investigation is, in principle, accepted to have happened by the respondent (there being two suspensions). In her closing submissions the claimant identifies Terry Collier as being responsible for it and says that it was caused by the sixth alleged protected disclosure (concerning the food bags).

[171]Terry Collier says: “Prior to having a telephone conversation with the Claimant, I had spoken with HR about commissioning an investigation into the Claimant’s behaviour. As part of this conversation, I considered that due to the nature of the issues and serious concerns that had been raised by managers that it was appropriate to commission an external independent and experienced investigator. It was also considered that having an external investigator would help keep this matter confidential for all the people concerned … I considered that it was necessary that having first reviewed the disciplinary … and specifically the sections around behaviours that could count as gross misconduct … that the issues related to the Claimant’s behaviour were significantly serious enough that the Claimant should be put on a brief period of paid leave to facilitate this investigation. I had concerns that if the Claimant continued to work directly with the managers in the Team, there would be further instances of behaviour from anyone involved due to the highted emotions and pressures that everyone was experiencing at the time. I also considered that having another Group Head from a different service line manage the Claimant would not be effective as the Claimant would still need to have direct contact with Karen, Deborah and Jayne. It was for these reasons that I initially thought paid leave would best protect all parties involved .... I had a phone call with the Claimant on 9 July 2020, I wanted to speak to the Claimant about the issues that had been raised, and also to checking on the Claimant and her welfare. As part of this call I told her that serious complaints and concerns had been raised due to her recent behaviour in meetings towards her managers. During this call I explained that due to the concerns I was placing the Claimant on paid leave and that I would be commissioning an independent investigation to fairly review everything that had gone on before any further decisions were made. I also set out that this was a confidential matter and that everyone Page 33 of 84 involved had been reminded of this. The confidentiality was to protect the Claimant and her welfare as much as anyone else’s. Around mid-day on the 9 July 2020 the Claimant emailed me … following our telephone conversation. Sharing with me the document that I had already seen from Deborah. In this email the Claimant alleged that this had been shared as “whistle blowing”. I had never received it from anyone else other than Deborah and now the Claimant. It had never been shared under the name of “whistleblew” or whistleblowing. This appeared to me to be the first time that the Claimant was ever raising the issues as a whistleblowing complaint and also was raising a grievance about the allegations that I had communicated to her during the phone call. The Claimant alleged she was being placed on gardening leave as a detriment, this was not the case as I had explained that the Claimant had been placed on paid leave to allow for an independent investigation to be conducted. The Claimant also in this email wished to raise a grievance about that she had been placed on paid leave without notice ... The Claimant’s tone of her email seemed to me as overly aggressive and accusatory and sought to imply that we did not care about the affect on her. This is untrue, I and the Council, as the employer, wanted to investigate this matter fully to understand what had happened and then take the appropriate actions if and when necessary.”

[172]The scene was now set for much of what followed. The claimant identifies herself as a whistleblower (although at that time only in respect of her statement of 22 June 2020, the sixth alleged protected disclosure) and vigorously contests any suggestion of wrongdoing on her part. The email that Mr Collier refers to from the claimant concludes: “Please do let me continue working. If I am placed on leave I feel the tipping point would have passed. Sadly.”

[173]Mr Collier responded with a formal notification of the intended investigation, identifying Jennifer McNeill of South East Employers as the investigator. The letter starts: “Further to our discussion, I am writing to confirm that it has come to my attention that you have made some very serious allegations against Jayne Brownlow in an email on 22 June 2020. I am concerned not only with the basis for the allegations, but also the manner in which you have raised them. In addition, the Joint Group Heads, Community Wellbeing have raised concerns about your recent communication with them and Jayne, which they feel has been unprofessional, disrespectful and inappropriate in a working relationship. I am concerned that you are becoming unmanageable and your managers are feeling bullied and Page 34 of 84 harassed by you, this has potentially led to a breakdown in the employment relationship. I believe these issues are interlinked as they relate to your relationship with your managers, and have therefore have appointed Jennifer McNeil, an independent consultant, to conduct an investigation into the above allegations. I have noted your comments that you believe the comments you raised about to Jayne Brownlow amount to whistleblowing. To be clear, we have asked Jennifer to undertake an investigation into Jayne’s conduct regarding the food bags as set out in your email of 22 June to ascertain if Jayne has acted inappropriately. We do not question your right to raise your concerns but we do have concerns about the manner in which you raised them. Jennifer has full authority to discuss the allegations you raised and consider with you whether your allegations amount to whistleblowing ... This investigation is outside the scope of our current policies and procedures. We will however conduct a fair process. The first stage is the investigation with Jennifer who will produce a report with recommendations, which I will then consider and action if appropriate. To be clear, I will not make any decision without giving you first the full opportunity to comment on the report. If you are unhappy with the outcome, you will be notified of the appeal process. We are putting you on a period of paid leave while this investigation is concluded.”

[174]The following day (10 July 2020) Mr Collier emailed the claimant to say “… I acknowledge the grievance you have sent and I confirm that it will be included in the investigation.” The email also said: “I have taken additional advice since our discussion and, as a compromise, I am prepared for you to carry on with your work remotely on the understanding that you report to myself by email/skype outcomes and for a high level steer, and that you do not discuss the details of the investigation with others, including councillors.”

[175]Ms McNeill had four strands to her investigation: the claimant’s grievance in respect of her suspension, whether there had been in a breakdown in the relationship between the claimant and her manages, Jayne Brownlow’s conduct in relation to the food bags and whether the allegations in relation to the food bags amounted to whistleblowing. Ms McNeill combines these to three investigations: “a potential breakdown in the employment relationships within the Community Wellbeing team between the Claimant and her managers; a grievance submitted by the Claimant following those employment issues being raised about her conduct, and, at the same time, allegations which the Claimant believed constituted grounds to make a protected disclosure”. According to Mr Page 35 of 84 Collier “this investigation is outside the scope of our current policies and procedures.”

[176]In the meantime, the claimant was permitted by Mr Collier to return to work but would work remotely (as before) and report to Mr Collier. This first period of suspension had therefore lasted one or two days, being almost immediately reconsidered and revoked by Mr Collier. Nevertheless, it happened, and is sufficient to amount to a detriment, being unlawful if it was caused by any protected disclosures made by the claimant.

[177]The claimant worked on, reporting to Mr Collier, until her second suspension in early December. By all accounts her work during this period of time was a considerable success, and there appears to be something of a paradox or at least a potential contradiction to be resolved arising from the claimant’s position that during this period she was both seriously oppressed and eventually dismissed because of her whistleblowing, yet at the same time entrusted with significant, influential and prestigious work by the respondent. This reached its height when during her questioning of Ms Brownlow the claimant suggested to Ms Brownlow that she (Ms Brownlow) had behaved to her in a particular way because she was jealous of the prestigious work being undertaken by the claimant during this period.

[178]A further complication is that the scope of the claimant’s work is itself said to be a detriment: “give the claimant too heavy a workload and fail to provide adequate staffing support”. These are not irreconcilable points, but we will have in our discussion and conclusions to address the claimant’s allegation that an aspect of the respondent’s retaliation for her protected disclosures was to give her took much work.

[179]Aside from their contributions to the investigation, from this point Deborah Ashman, Karen Sinclair and Jayne Brownlow are not involved in the claimant’s suspension or any of the subsequent events. Those involved were Terry Collier, who managed the claimant during this period and commissioned the investigation, Jennifer McNeill, who carried out the investigation, various members of HR who advised along the way, Siraj Choudhury who decided to refer the matter on to a hearing, Jackie Taylor who was responsible for that hearing and decided to dismiss the claimant and Duncan Mouawad who heard the claimant’s appeal against dismissal. The investigation July 2020

[180]Terms of reference were sent to Ms McNeill by the respondent on 10 July 2020. These were not shared with the claimant at the time.

[181]Ms McNeill says that she was at the time the Regional Director of South East Employers, which she says is the regional employers’ organisation for the south Page 36 of 84 east of England. We take it that this is some sort of consortium of public sector employers in the south-east, a regional resource to be drawn on and contributed to for matters of common interest.

[182]From the respondent’s point of view this meant that Ms McNeill was independent: that is, not an employee of or with any loyalty to the respondent. The claimant may not have seen things quite that way, but as we shall come on to we are at something of a loss in identifying what it was that Ms McNeill may have objected to in the claimant’s protected disclosures. She was not affected in any way by the allegations that the claimant had made and had no obvious loyalty to anyone involved. It was not part of the claimant’s case that she had conspired with Mr Collier or anyone else to achieve a particular result or outcome to her investigation. Despite the claimant’s position that each individual responsible for her detriments was separately motivated by her protected disclosures, by the conclusion of her submissions she had given us no indication of how Ms McNeill’s conduct may have been influenced by any

[183]On 15 July 2020 Ms McNeill sent an email to the claimant with a proposal to meet the following week, on 22 July 2020. The claimant replied in some detail, “I hope that my responses to this negate the need for that meeting just yet as I believe the content within this gives you the majority of the answers you require to conduct your investigation.” and “I also need clarification on some points which I will raise further down in the email responses.”

[184]The claimant makes clear her rejection of the allegations against her, including: “There is also an allegation of me being unmanageable. This is a novel accusation during a lockdown whereby staff are all working from home. What efforts have been made to manage me? On the face of it I have been the only one who has carried on doing a great job with extremely little direction. Many of my management meetings have been cancelled. I never had an appraisal and my probation report was delayed but I passed that ... I have never ignored or disobeyed any instruction save for what Jayne asked me to do very recently. Jayne is not my manager. She is a senior colleague but I do not report to her. She was asking me to do something which I believed was wrong. I made great effort to talk to her about it and whilst I admitted to KS that the conversation got heated, it was on both sides. However I apologised for that and what I was being asked to do was what made me react the Page 37 of 84 way I did. It was my belief that the issue had ended there. Jayne never apologised. … I need to know exactly what your remit is and what has been said and by whom … ... please clarify for me what I have done wrong? … If this relates to the three way between KA myself and Jayne then I dispute this. I apologised and Karen accepted that apology and actually thanked me. Her words and I quote are 'You are more like me and Deborah as you have passion'. I take this as a compliment ... DA has been incredibly supportive of me … Her emails show nothing but praise … her support was exemplary … I have had less involvement with KS but I believe that she often reacts quickly and says things that she ought not. That said I think she cares and has given me valuable advice in the past … I don't think she can deal with challenge as well as DA. She accepted my apology and thanked me and I believe that was genuine as was my apology. I am unsure why she is now escalating things. JB, Hmm where do I start with that. Up until this occasion I considered Jayne a friend ... However she was wrong in what she did regarding the food bags. Very wrong. She asked my advice and ignored it ... I am the food bank lead. Although she is senior to me she is not my manager and I am the one with the knowledge which is why she asked my opinion. It is frustrating when someone asks your opinion and then ignores it and then it escalates into them blaming you, then asking you to lie and then the blackmail threats came in. I think she may have been told to do something by DA or KS and does not challenge like me. Maybe she challenged before and an independent investigator was brought in whilst she was placed on gardening leave? Or someone else was and the culture of fear spreads. Sounds familiar? It should. In some ways I feel sorry for her. I may end up being sacked, and have a huge legal case, but I would do it again. I have no issue with standing up for what is right and I was employed on that basis. I can look in the mirror and be proud of standing up. If others cannot take that then they need to consider why. On that note please be aware that I will not back down on this. What happened was wrong but the issue is bigger than food bags. The issues include taking from a charity and covering it up and creating a culture Page 38 of 84 why I was placed in an untenable position having to try and manage the expectations of a foodbank that I had worked closely with for 18 months. Me challenging that has resulted in me being the subject of an investigation and that is very clearly wrong.”

[185]Much of that prefigures the claims we are now dealing with, and the claimant’s descriptions of her relationships with others accords in many respects with our impressions of how things had gone up to the events of 15 and 22 June. The claimant had a strong relationship with Deborah Ashman, who we have seen backed her up and became personally involved with some of her earlier protected disclosures. She had less to do with Karen Sinclair, and that relationship was less secure. While Jayne Brownlow has expressed some reservations it was the claimant’s understanding that her relationship with Ms Brownlow was secure up to the point of the 22 June 2020 conversation. We also see reference to the “huge legal case” that we are currently engaged with.

[186]Finally on this point, in response to Ms McNeill saying “If you need any further clarification … please let me know” the claimant replied: “Yes please: 1. Your terms of reference – outcomes and timescale. 2. The lawful basis for your investigation. I remain unclear whether this is formal or informal and what your remit is. On the face of it our meeting could be a phishing exercise as there is a lack of evidence against me. I am unclear whether a complaint or grievance has been made against me by whom and for what. The telephone conversation and the subsequent letters are contradictory and lack clarity. I am unclear what I am accused of and what evidence there is other than spurious and unfounded allegations. It is not for me to try and prove I am not a bully, or a harasser or not unmanageable, please provide strict proof of those allegations and I can then defend them. The letter dated 9th July states that the investigation is outside of your current policy and procedures. I have taken advice on this specific point and have been advised that your actions are illegal. You have subjected me to humiliation, stress, defamation and ridicule. Without any lawful basis to back that up.”

[187]As for the meeting proposed by Ms McNeill, the claimant says: “I think given the amount of detail I have put in this that this is a good start for you to work with. I am unsure the benefit of a meeting until this has been looked at and considered in detail. If you require me to evidence anything I have said please do not hesitate to ask. Whilst I Page 39 of 84 believe there is no lawful basis for your investigation, and further that my whistleblowing has been reacted to with direct detriment to me and an investigation on me, I will continue to comply at this current time whilst also continuing to do my job.”

[188]Ms McNeill describes this as a “lengthy and detailed commentary to information I provided in my email”.

[189]We see in this the claimant proceeding on the basis of attack being the best form of defence, but we also accept that at this time the claimant had not been provided with the terms of reference given to Ms McNeill. For these claims the significance is that the claimant was invited to a meeting with the investigator at an early stage of proceedings but refused to participate in that meeting (or at least discouraged that meeting) for the reasons described in her response to Ms McNeill’s email. At this stage the only allegation of whistleblowing relates to the question of return of the food bags.

[190]On 16 July 2020 Ms McNeill sent an email to her contacts in the respondent’s HR department: “This ... is just to keep you in the picture regarding how things are progressing in arranging meetings, and what I feel is the need for some further clarity. In light of the below, and the information I have now received, I propose the following way of taking this forward: That in my (virtual) meeting with DA and KS on Tues, I establish from them exactly what their complaints are (bullying and harassment by TR) as they have asked me to speak to witnesses: David Birley and Stephen Mortimer-Cleevely. And in fairness to TR, she needs to know what the allegations are to be able to respond - so I think the suggestion of this being a general review will not work here on that point. In my meeting with JB - confirmed to be at your HR offices on Weds at 11am, that I cover behaviours re TR as well as the allegations regarding food bags etc. that are the subject of TR's whistleblow. That I focus on the 'whistleblow' by TR and that, despite her preference not to meet with me on Weds as I have requested, we still have this meeting. I have asked her to come to your HR room at 1.30 on Weds. That I arrange to meet again with TR once I am clearer on the allegations against her and she has time to consider these before that meeting as she will be defending herself. Page 40 of 84 In all of this, I will want to establish that the allegations being raised by DA and KS/JB are not as a result of the whistleblow (victimisation) and that they are clearly separate. If that cannot be established, then becomes more problematic. However, until I have had those conversations, I cannot be clearer at this time. Does this make sense?”

[191]So despite the claimant’s apparent objections Ms McNeill was still hopeful that her intended meeting with the claimant would proceed. On 17 July she replied to the claimant’s response to her email saying: “Just to confirm, my remit has not altered. I am conducting the investigation in stages as outlined. To confirm, the meeting with you on Weds is to cover your whistleblow complaint and it will be just me. I will advise you of the allegations relating to bullying etc. in due course and will arrange a further meeting with you in that regard.”

[192]So according to Ms McNeill the intended meeting would just cover the question of whether the claimant’s complaint amounted to whistleblowing.

[193]The claimant was not satisfied with this response and replied asking again for Ms McNeill’s terms of reference and saying (the emphasis is the claimant’s): “Please can you outline your staged approach as soon as practicably possible. And I ask again for your terms of reference. I agreed to attend an interview with you on Wednesday on the basis that you are looking at my whistleblowing only … But now you have clarified and said that you are looking at things in stages. That is very different. It means that anything that I may say as part of our meeting on Wednesday is not restricted to that investigation and again I reiterate my concerns that this is phishing, due to a complete lack of evidence for the allegations made against me or the initial punitive decision to place me on garden leave and cut me off from a community in the midst of a pandemic. Page 41 of 84 Until you clarify, in more clarity then you have, exactly what you are doing then I am not going to attend a meeting with you on the basis that it could be prejudicial to me ... I also draw to your attention my extremely serious allegation that your involvement is illegal. I am shocked that you have not come back to me with the full force of the legal department, challenging my outrageous assertion. But actually I am not shocked because I know I am right … If your remit continues to include any aspect of my employment then I ask you for very strict proof of the allegations made against me and the rational for the ridiculous decision for and the resultant punitive action. Please provide detailed evidence of: 1. Bullying 2. Harassment 3. Unmanageability 4. The legal basis for your involvement currently and prior to your appointment There is absolutely no reason to do so, but if the garden leave is reconsidered, given we are in communication and I am providing you with information that you need, I will have no alternative but to immediately launch an employment tribunal case. I hope this won’t be necessary and your investigation will continue into what happened regarding the food bags only and until such time as strict proof emerges of the spurious allegations only made after me whistleblowing”

[194]Jennifer McNeill replied on 20 July 2020 asking for any additional emails the claimant may have in relation to whistleblowing and cancelling the intended meeting on the basis that “you have confirmed you do not wish to take up my offer to meet on Weds at 1.30 to discuss your whistleblowing allegations.” She continues: “I will arrange a further meeting with you to discuss allegations regarding your conduct (as per TC’s letter to you) in due course, and once I have advised you of the nature of this. Also, I would like to discuss your own grievance so your concerns can be investigated. As regards your other questions about process, I will forward your email correspondence to HR for their consideration.” Page 42 of 84

[195]At the same time Ms McNeill forwarded the claimant’s email to HR, saying “I am forwarding email correspondence between TR and me as she is asking some questions which you may be better placed to answer regarding process.”

[196]The claimant objected to her email being sent to HR, saying to Ms McNeill: “Please do not share my email with anyone else. That is highly inappropriate. Please do ask HR for something specific that I may raise but please do not share correspondence which is confidential and only for your attention. I will forward the relevant information later today, and thank you for cancelling the meeting at this current time. I reiterate to you that I wish to fully comply with your investigation but meeting without knowing the evidence of the allegations is premature.”

[197]On 23 July 2020 the claimant forwarded this complaint to Terry Collier.

[198]In the meantime, Ms McNeill had proceeded to interview other relevant witnesses in the second half of July 2020. This included Deborah Ashman and Karen Sinclair, Jayne Brownlow, Stephen Mortimer-Cleevely and two others who the claimant had requested that she interviewed. It appears that Ms McNeill had concluded these interviews by 30 July 2020, leaving only the claimant’s interview outstanding. If the claimant’s interview had been carried out as originally intended on 22 July, then all interviews would have been complete by the end of July. August 2020

[199]The intended meeting with the claimant was rescheduled for 28 August 2020. Ms McNeill says that this was due to the availability of the claimant and her chosen companion. Ahead of this meeting Ms McNeill wrote to the claimant “The areas I would like to cover with you when we meet so that I can have your perspective are: 1. Clarification of Whistle blow and grievance - email dated 9.7.2020 from you to Terry Collier with an attached document - (note to Deborah Ashman attached to email dated 22 June 2020) refers 2. Your allegations against Jayne Brownlow 3. Concerns raised by managers: Your communications with managers within the team (referred to in Terry Collier's letter of 9 July 2020 as being unprofessional, disrespectful and Page 43 of 84 inappropriate in a working relationship; becoming unmanageable, that managers feel bullied and harassed) 4. The working relationship between you and managers (referred to in above letter as a potential breakdown in the employment relationship). You are welcome to bring a colleague or trade union representative with you if you wish.”

[200]On 25 August 2020 the claimant again complained to Terry Collier “regarding the way I have been treated following the protected disclosure I made on 22nd June 2020”. The claimant complained that Ms McNeill had “breached GDPR by forwarding highly personal and sensitive information to others” (we think this is a reference to copying her email to HR) and set out 14 complaints about the investigation – primarily that matters she had raised before such as questions around process remained unaddressed.

[201]In the meantime, on 26 August 2020 the claimant received an email from a colleague including “I sent you a text the other day to ask if you were ok, as I noticed that you weren’t in the CW managers meetings recently.” The same day the claimant complained to Mr Collier that “this [not being in or invited to the meetings] is direct and deliberate discrimination of an employee who has made a protected disclosure.”

[202]Later that day the claimant also complained about a chain of emails on that day. A manager reported to the claimant and others (including Jayne Brownlow) on local sports clubs receiving Sport England grants. Jayne Brownlow’s response to this was copied to all recipients of the original email, excluding the claimant.

[203]Mr Collier replied saying that HR would respond to the claimant and the intended meeting with Ms McNeill on 28 August 2020 would be postponed in the meantime. September 2020

[204]The meeting with the claimant was rescheduled for 14 September but was postponed because of the claimant’s availability to 15 September and the postponed because of the claimant’s companion’s and Ms McNeill’s availability to 16 October 2020. October 2020

[205]Ahead of the meeting intended for 16 October 2020 Ms McNeill sent the claimant a three-page document outlining “Areas for discussion with Tracy Reynolds” under the headings “Whistle blow and grievance” and “Concerns raised by DA and KS about managing you and about employment relationships within the team” with the latter being broken down into six “areas”. Page 44 of 84

[206]The claimant replied asking for more detail and saying she intended to provide a written response to the matters raised. In response Ms McNeill offered to address the whistleblowing and grievance matters first, and said “I would prefer to record the meeting”. On 14 October 2020 the claimant replied saying she would prefer that the meeting was not recorded, providing a written response to questions from Ms McNeill and saying, “I am unsure what I can add further to this document during our discussion.”

[207]The investigatory interview took place on 16 October 2020 by Zoom. The claimant was accompanied at that meeting by Frances Kavanagh. Ms McNeill describes the meeting as lasting more than three hours. Ms McNeill provided the claimant with her notes of the meeting on 22 October 2020.

[208]The claimant was dissatisfied with the notes but she did not provide the corrections she was invited to provide to the notes.

[209]The notes show that there was mention in the meeting of asbestos in the office, but that does not seem to be referred to by the claimant in those notes as being a protected disclosure. At this stage the only thing that is being talked about as a protected disclosure is the claimant’s statement about the food bags. November 2020 – the reports

[210]Ms McNeill produced her reports on 23 or 24 November 2020. There are three separate reports. They are addressed to Mr Collier and were presented to him on 24 November 2020.

[211]The whistleblowing report contains the following in its conclusion: “There was no evidence presented that the meeting of 9 July [with Mr Collier concerning the claimant’s suspension] was held as a result of a protected disclosure having been made by TR, nor was there evidence of any grounds to make a whistleblow, or protected disclosure, prior to that date, or subsequently.”

[212]Broadly speaking Ms McNeill had concluded that(i) Jayne Brownlow had done nothing wrong in respect of the food bags,

(ii) the claimant’s statement of 22 June 2020 was not a protected disclosure, and

(iii) the claimant had only identified this as possibly being a protected disclosure at a much later stage, following her suspension and the commissioning of the investigation.

[213]The “breakdown of the working relationship” report concludes: “The evidence provided to me in documents and from witness statements reflects a consistent theme of managers and colleagues experiencing challenging responses from TR if their professional views did not accord with hers. Throughout this investigation, TR has sought to justify and defend her actions where concerns or challenges have Page 45 of 84 been raised about her. In some instances, she sought to portray herself as the victim, often claiming a lack of support from management or the council. The time expended by DA, KS and JB in providing TR with regular 1-1 meetings to support her with personal, health and administrative work matters appears to be disproportionate to what a manager at TR’s level should require ... … on-going examples of inappropriate conduct towards colleagues as well as representatives from external organisations, are concerning and would reasonably be expected to be challenged. My recommendation is that the council now considers the situation in finds itself in, the interventions that have already been provided and whether there is anything further that can reasonably be done to retrieve the situation and rebuild trust and the working relationships. Potential options might include an offer of mediation if the parties agree to participate as this is a voluntary process; whether there could be any change of line management or whether there are viable options for redeployment of any parties into any other role within the council. The wellbeing of all parties involved is an important aspect to be taken into consideration in how this matter is progressed, together with ensuring that services to the communities continue to be provided.”

[214]As the claimant correctly points out, her dismissal is not a “potential option” identified by Ms McNeill.

[215]The grievance report concludes “I was not presented with evidence that would lead me to consider there was substance to any of the areas of this grievance.”

[216]Having presented these reports Ms McNeill’s only other action was to attend the claimant’s hearing on 7 January 2021.

[217]Mr Collier describes what he did next: “I read through and considered each of them carefully and the outcomes and any recommendations. It was clear that Jennifer did not consider that the Claimant had made any protected disclosures and why she thought this. Jennifer also concluded that that there was likely to have been a breakdown in the working relationship. As such this required that a hearing or meeting was convened to fully address these issues with the Claimant so a formal outcome could be reached. These reports were also considered by the legal department, and I was liaising with them on how best to arrange the next steps on progressing this matter to a hearing. I considered that I was not the appropriate Page 46 of 84 person to make any formal outcome decision on these reports or to chair any meeting. As such I held a conversation with HR to appoint a suitably senior manager who had experience of handling formal processes and who would remain impartial in considering this matter. This was ultimately chosen to be Jackie Taylor, who is the Group Head for Neighbourhood Services. This is a manager who not part of the same Group as the Claimant or anyone else involved in the investigations. Siraj Chowdhury, an experienced member of the legal department, was also nominated to present the management case, he had considerable experience in presenting these cases and also had no involvement in this matter until this point. He was asked to review the investigation reports and concluded that there was a case to answer. I wrote the Claimant on 26 November 2020, setting out the outcome of the Whistleblowing investigation and that the investigator had found no evidence of the Claimant having made a protected disclosure. In this letter I set out that there was no right of appeal in the Confidential Reporting Code. I also provided the Claimant with a full copy of the outcome report.”

[218]His email of 26 November 2020 to the claimant says: “Outcome of investigation into whistleblowing disclosure. I have now received the outcome of the above investigation conducted by Jennifer McNeil in which she considered your allegations regarding the conduct of Jayne Brownlow in connection with the food bags incident and whether your allegations regarding Jayne's conduct could be considered whistleblowing disclosures. I attach Jennifer's report for your records. I am satisfied that Jennifer has thoroughly investigated the issues and I have accepted her conclusions that Jayne is completely exonerated from any alleged wrongdoing and that your allegations regarding Jayne's conduct could not reasonably be considered to be whistleblowing disclosures. Under the Confidential Reporting Code, there is no right of appeal against this finding and therefore I consider that this part of the investigation is now concluded.”

[219]On the same day she received this report the claimant wrote to the chief executive and the leader of the council. Her email starts: “I am sorry to write to you but really feel that I have no option. I am being bullied out of a job for standing up for a charity and would like to discuss this with you confidentially please as I am sure that you will not think what is happening to be fair. Page 47 of 84 I wish to appeal this report and also for my grievance which Terry refused to hear to be heard please along with some additional complaints as a result of the ongoing investigation. The report is full of inaccuracies that can be proven to be so and focuses on trying to prove that it wasn’t a protected disclosure rather than taking any action to put it right or any action against Jayne for her conduct.”

[220]The claimant says that Mr Collier’s original letter and the terms of the whistleblowing policy entitled her to appeal this decision to the chief executive. The respondent does not agree with that. On 27 November 2020 Mr Mouawad replied saying: “Morning Tracy I’ve just opened your communication, I reached the start of your second para and stopped as protocol prevents me from reading it because as CEX I am purposely kept out of such matters in case I need to arbitrate at the final concluding stages. Whilst I therefore don't know what you are therefore referring to in your opening paragraph, I will have someone in HR review your communication and ascertain if anything is amiss in whatever policy is being pursued and for them to advise you accordingly. I must say however, that we take such issues extremely seriously and no one will ever be "bullied out of a job" at this authority. I am somewhat surprised and saddened at that ascertain. I am perhaps doubly so as I only saw you a couple of days ago and you seemed in such good spirits. Be assured our policies and procedures are there to protect all employees.”

[221]In other words, as Mr Mouawad explained in his oral evidence, it was his practice so far as possible to remain independent and uninvolved in individual employment issues on the basis that he may later be called upon as the final arbiter of, for instance, an appeal against dismissal. Second suspension and ill-health – December 2020

[222]As for the other issues, Mr Collier says: “On 3 December 2020 … I wrote to the Claimant advising her of the outcome into the investigation of the alleged breakdown of the working relationship and the grievance that she had raised. In this letter I set out that a formal hearing was needed to fully explore these matters with the Claimant and that she was entitled to be accompanied at this meeting. The Claimant was at this time formally placed on paid leave until the hearing could take place. This was originally scheduled for 18 December 2020. The letters were sent by post to the Claimant.” Page 48 of 84

[223]The letter of 3 December 2020 says: “I am writing further to my letter of 9 July 2020 advising you that an investigation would be conducted into the concerns detailed in my letter. As you are aware, the investigation was conducted by Jennifer McNeill, Regional Director, South East Employers and her report entitled: ‘Findings Following an Independent Investigation into a potential breakdown of the working relationship between the managers’ in the Community wellbeing team and Tracy Reynolds' is enclosed for your information. I have instructed Siraj Choudhury, Deputy Group Head, Commissioning and Transformation to consider the report and I confirm that he has recommended a formal hearing takes place to assess whether there has been a breakdown in the working relationship. The hearing will take place on 18 December 2020 at the Council offices, Knowle Green (socially distanced). The hearing will be heard by Jackie Taylor, Group Head, Neighbourhood Services and you are required to attend. … Please be aware that one potential outcome of the hearing could be your dismissal from the Council’s service.”

[224]The letter provides the following rationale for the claimant’s suspension: “It has been brought to our attention that you have disclosed the Whistleblowing Report to the Chief Executive and Leader of the Council when this report was clearly marked as strictly confidential. This together with the serious nature of the matters within the report, has led to the decision that you will be placed on a period of paid leave until the formal hearing.”

[225]Aside from a question of providing electronic copies of documents, Mr Collier says he had no further involvement in the matter.

[226]Siraj Choudbury prepared a “management case” document on 9 December 2020. This addresses several of the suggestions made by Ms McNeill. As regards mediation, it says: “Findings of the Investigator suggest that TR (even if she volunteers for mediation) is unlikely to engage effectively ... the Investigator describes a pattern of TR’s behaviour that indicates that she could not accept any challenge about her behaviours, nor did she appear to be prepared to consider others’ perspectives, different view points, or that her actions or comments may have contributed to an issue arising in any way.” Page 49 of 84

[227]As regards a change of line manager, Mr Choudhury says that the claimant’s role requires her to be in the group led by Deborah Ashman and Karen Sinclair and at least to some extent to work with them. He says, “It would be reasonable to conclude that the other managers in the Community & Wellbeing Group … would not have the capacity to take on what would clearly be a resourceintensive management task.” He says that Mr Collier’s workload is such that he cannot effectively support the claimant, “The council must take heed of the conclusion reached by DA and KS that TR is ‘unmanageable’” and “… a change in line management is not considered to be a realistic option”.

[228]Concerning redeployment, Mr Choudhury says that there are no suitable available vacancies, “the findings of the investigation suggest that TR would not necessarily slot in well to a redeployed activity” and “there is a risk that TR, through her behaviour, may cause any team or service problems in terms of interference or disruption”.

[229]His conclusion is: “In these circumstances, it is recommended that a formal hearing be convened to consider the allegation that there has been a breakdown in the employment relationships … It is felt, having considered the Investigator’s report, that TR’s behaviour and approach has significantly damaged the relationship of trust and confidence. In this instance, it seems highly improbable that that can be rebuilt.”

[230]Although he has apparently ruled out all other options, Mr Choudhury does not go so far in this document as to expressly seek or recommend the claimant’s dismissal.

[231]On 10 December 2020 Jackie Taylor wrote to the claimant saying: “I am writing to inform you that I have convened a formal hearing on Friday 18 December 2020 at 10am in the Council Chamber at the Council Offices, Knowle Green ... The purpose of the hearing is to consider the allegation that there has been a breakdown of the working relationship between yourself and the managers in the Community Wellbeing Team. This means that one potential outcome of the Hearing could be your dismissal from the Council’s service. You have previously been provided with a copy of the investigation report titled, Findings following an independent investigation into a potential breakdown of the working relationship between the managers in the Community Wellbeing Team and Tracy Reynolds. Page 50 of 84 I will conduct the hearing, the procedure for which is enclosed and will be assisted by a member of the Human Resources Team. The management case will be presented by Siraj Choudhury, Deputy Group Head, Commissioning and Transformation. Siraj will be assisted by Jennifer McNeill, Regional Director, South East Employers. The management case and appendices are enclosed.”

[232]The letter says she is entitled to have a companion in the meeting and may call witnesses or submit written representations.

[233]The letter and the accompanying materials were emailed and hand-delivered to the claimant’s address in hard copy form by a third-party courier on 11 December 2020.

[234]The claimant points out that, if it was decided in that meeting that she should be dismissed with a week’s notice, and if she was notified of that on the day, her dismissal would take effect on Christmas Day.

[235]As the letter says, it was accompanied by an outline procedure which takes the form of an agenda or outline for the meeting. The respondent seems to always have been at pains to avoid any suggestion that this was a disciplinary hearing under its disciplinary procedures. Instead, the respondent has suggested that both the investigation by Ms McNeill and the eventual hearing happened under some sort of sui generis or unique, custom procedure adopted specifically for the purposes of the claimant’s situation. In practice this was bound to draw heavily on established grievance and disciplinary procedures, but with the respondent adopting the position that it was neither of those.

[236]The claimant was in very poor health at this time. The first the respondent knew of this was on the claimant’s son sending an email to various members of staff (including Mr Collier and Ms Taylor), saying: “[the claimant] was taken iII on the 4th December after receiving your correspondence and her dr thankfully urgently referred her via common point to the crisis team. She has been under their daily care since then. Today a psychiatrist assessed her very poor health and has prescribed medication. Her own dr has today signed her off work for a month. I attach a photo of the note. I do not have authority to speak on her behalf and therefore will refrain from giving any opinions on your actions. I (or Tracy herself) will endeavour to update you on her health on or before the 11th January 2021.”

[237]This was accompanied by a photograph of a MED3 form, dated 11 December 2020, certifying the claimant as unfit for work for a month from 11 December Page 51 of 84 2020 based on “anxiety & significant distress with sensory distortion”. Ms Taylor said that she considered it significant that the MED3 does not say that the doctor would need to assess the claimant’s fitness for work again at the end of this period. In other words, as far as she was concerned, the claimant had every expectation of being fit for work without further medical examination on the expiry of the MED3 form.

[238]Ms Taylor’s response to this was hand delivered to the claimant’s address by a council official on 14 December 2020. It says: “I acknowledge receipt of your Statement of Fitness for Work dated 11 December 2020. The hearing is due to be held on 18 December 2020 and for the benefit of all parties, I do not consider that it should be postponed. Your Statement of Fitness Work is in regard to your full time work and does not prevent you from attending this Hearing. To delay could exacerbate your condition as it is prolonging a conclusion to this difficult situation. You may if you wish provide a written representation if you feel unable to attend or consider this would be beneficial for you in the circumstances. Also, I am happy in these circumstances for a member of your immediate family to accompany you on a welfare basis if you do not wish to be accompanied by a trade union representative or Spelthorne work colleague, which you should arrange. If you wish to attend in person, breaks will be allowed to assist you, if needed.”

[239]In broad terms, the view expressed in that letter is that the MED3 says nothing about the claimant’s fitness to attend the hearing, and it is better to get on with it, subject to adjustments if necessary.

[240]In response, the claimant sent an email on 16 December 2020 to Ms Taylor, “I confirm that I am too ill to attend the hearing. The letter dated 14th caused me considerable distress. My health deteriorated so much the crisis team called the emergency services as I was at extreme and immediate risk. Thames Valley Police considered your letter disgraceful. They also advised me to ask you to stop sending staff to my house. The papers were delivered in the early morning on the 11th when it was dark. The letter dated 14th was delivered by a man who parked across my drive walked past my letter box and past my door for unknown reasons. Page 52 of 84 Yesterday a staff member also parked across my drive and seemingly was there to check my post box. I reported this to TVP ... TVP have advised me to call 999 if anyone else is sent to my house. Please use the postal system and email. I will not be checking daily as I am trying to focus on staying safe and the psychiatrist, crisis team and Police have all advised to ignore and not open any further correspondence as it is causing my health to spiral further downwards.”

[241]This was supplemented the same day by a letter from the Crisis Resolution and Home Treatment Team of Berkshire Healthcare NHS Trust, addressed “to whom it may concern”, saying: “This letter has been written to confirm Tracy is currently struggling with her mental health and is under the care of the Crisis Resolution Home Treatment Team for short term interventions. I understand Tracy has a meeting to attend on the 18th December with work panel. Currently the worry of this is causing Tracy added stress, therefore may I kindly request this to be adjourned until Tracy is stable mentally. If further clarification is required, please do not hesitate to contact CRHTT on the above number.”

[242]On 17 December 2020 Ms Taylor wrote to the claimant, acknowledging this correspondence and postponing the hearing to 7 January 2021. She said, “No further postponement will be agreed as for all concerned this matter needs to be concluded” and “If you are unable to attend, the hearing may be heard in your absence”.

[243]On 21 December 2020 Ms Taylor wrote to the claimant with the results of some investigations she had made into the allegations of how the hand-delivered letters had been delivered to her. She says: “Further to your email dated 16 December 2020, I was concerned to read your comments relating to the delivery of confidential letters to your above home address. Due to the sensitive nature of the letters and in particular, the size of the pack enclosed with my letter dated 10 December 2020, your letters were hand delivered to you to ensure they were received safely. In relation to the 10 December 2020 letter we have checked with our courier, who have confirmed that the pack was delivered to your address at 16:04 on 10 December 2020. The pack was left in your porch as per the instructions on the door. Page 53 of 84 In relation to my letter dated 14 December 2020, to ensure that you received the letter safely and in good time, this was also delivered by hand. We have investigated how this letter was delivered and it was placed in a letterbox on the wall which was open and would not shut. The letter was placed in the letterbox as the driver could not see a letterbox in the front door. It has been confirmed that this was delivered at 14.42. To ensure that the above letters are delivered to the correct address, a photograph is taken in case of any queries. As detailed in my previous letter, I confirm that you have requested that any correspondence from Spelthorne Borough Council is now sent via the postal service and your personal email address.” THE FACTS – PART 4 – JANUARY 2020 - DISMISSAL

[244]On 4 January 2020 the claimant sent an email to Ms Taylor in these terms: “I ask that you please postpone the hearing. As per my sick note I am very poorly and too ill to attend. It is up to the 11th January. I am so very sad that you just ignored it and intended to go ahead a week before Xmas. The crisis team had to get involved and asked in writing that you postpone until I am well enough to attend. The 7th is whilst I am still signed off. I am currently waiting a review. I am not currently well enough to attend or even prepare or read the statements. I have not been able to bare to look at the statements from previous friends and colleagues as my mental health is just too fragile. I do not have them electronically. I do not have any of the formal hearing pack electronically. I do not know the timings. What policy. No history of any disciplinary procedures. I cannot access any advice. (Or share documents). I have tried to get advice but everything is closed or too busy and I don’t have the documents to send. I don't have access to my own evidence. I have no opportunity to call my own witnesses. Page 54 of 84 It seems the convenience of others is more important than my health or conducting a fair and transparent process. … What Spelthorne have done to me knowing my extremely fragile mental health is an absolute disgrace.”

[245]This was followed up on 5 January 2021 by the claimant’s trade union rep, who wrote: “I have been made aware by our member Ms Reynolds that she is subject to a disciplinary hearing that is to be chaired by you on the 7th January 2021. I note on the invite letter it states that if she does not attend you will hold the meeting in her absence. I must make you aware that Ms Reynolds is currently under medical supervision by her GP and CRISIS and would be covered under the mental health provisions so we believe no hearing should take place until she is fit and able to attend, we believe this is only a short adjournment and one that should be adhered to so the right to natural justice can be administered. Please confirm you will adjourn this hearing for 14 days?

[246]Ms Taylor’s response to this was that the hearing had already been postponed for 14 days and “I have decided to proceed with the planned hearing date on 7 January 2021.” Further copies of the relevant documents were also provided to the claimant.

[247]In an email dated 6 January 2021 Ms Taylor set out her rationale for proceeding with the hearing: “At this stage I intend to proceed with the Hearing taking into account the submissions made and on the following basis: 1. The hearing has been postponed once before following a letter from the Crisis Resolution and Home Treatment Team requesting an adjournment. In order to assist Tracy we offered to allow her to make written submissions and this adjournment allowed her additional time to prepare such submissions if she so wished. 2. Tracy is currently signed off until 10 January 2021 for Anxiety and Significant Stress with Sensory Distortion. This difficult unresolved situation will not help her anxiety and should not be prolonged. 3. To provide all possible assistance, we have given Tracy the option of providing a written submissions and representation. Page 55 of 84 4. Given the COVID restrictions, we are able to provide a meeting room and set up a laptop to be used as Tracy does not have broadband. Please note that hard copies of the relevant documentation have already been delivered to Tracy. 5. This process has caused anxiety and stress to all parties. In particular, HR has met with Jayne Brownlow on 16 December 2020 and discussed her worries and concerns with her. It is in the interests of all parties to bring this to a resolution and it is important that there is closure for all staff. 6. We are in an unprecedented situation with COVID and additional demands and availability being placed on the managers and their critical service areas. 7. The duties of the post are not being carried out and this is a key role, particularly during the COVID-19 pandemic. I have fully taken into account the emails received from Tracy and the GMB union. However these have not changed my view that the hearing should proceed.”

[248]The hearing was held in the claimant’s absence on 7 January 2021. As well as a notetaker, Mr Choudhury and Ms McNeill were present with Ms Taylor. Karen Sinclair, Deborah Ashman and Jayne Brownlow attended to be questioned by Ms Taylor. The hearing started around 10:00 and even in the absence of the claimant continued until well into the afternoon. The notes of the meeting record Karen Sinclair, Deborah Ashman and Jayne Brownlow being subject to detailed questioning by Mr Choudhury and Ms Taylor.

[249]The outcome of the hearing was expressed in a 17-page letter dated 11 January 2021 prepared by Ms Taylor, addressing amongst other things the possibility of mediation, redeployment and a change of line manager. Having concluded that those were not realistic options, Ms Taylor writes: “After due deliberation and having fully considered all of the documents presented at the hearing and listening to the damaging effect your continued difficult behaviour and attitude towards others had not only on yourself but also on our external partners and your work colleagues across the Council I do not consider that this breakdown in your working relationship is retrievable. On this basis and for all reasons already stated I have concluded that your actions constituted a breach of the implied term of trust and confidence within your employment and there has been an irretrievable breakdown of the working relationship. I confirm that I dismissed you from the Council’s service on the grounds of some other substantial reason. Page 56 of 84 You are entitled to one week’s notice which will run from Monday, 11 January 2021 to Sunday, 17 January 2021. You will remain on paid leave for the duration of your notice. Your last day of service with Spelthorne Borough Council will be Sunday 17 January 2021. You will be paid full pay for the duration of your notice period and any other outstanding payments will be made to you in your last salary payment. You will also be sent your P45 in due course. … You have the right of appeal against your dismissal. Should you wish to do so, please notify Daniel Mouawad, Chief Executive, in writing within 5 working days of receiving this letter, setting out the grounds of your appeal.” THE FACTS – PART 5 – AFTER DISMISSAL

[250]The claimant submitted detailed grounds of appeal (including multiple supporting documents) by email on 19 January 2021. It is in this appeal that we see the first references to “document 1B”, “document 1C(i)” and so on which are later referred to in the claimant’s particulars of claim.

[251]Mr Mouawad spoke of working through around 200 pages of material submitted by the claimant. The documentation submitted by her in support of her appeal was that substantial.

[252]There is no allegation of a detriment arising in the conduct of or outcome of the appeal, so for now we can confine ourselves to noting that the claimant made her seventh alleged protected disclosure during the appeal process, and that after extensive correspondence the claimant’s appeal was heard by Mr Mouawad on 7 April 2021, with Mr Mouawad refusing the appeal in a letter dated 20 May 2021. THE LAW Protected disclosures

THE LAW

[253]Section 43B(1) defines a “qualifying disclosure” as: “… 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 … (c) that a miscarriage of justice has occurred, is occurring or is likely to occur … Page 57 of 84 (d) that the health or safety of any individual has been, is being or is likely to be endangered.”

[254]The five requirements for a qualifying disclosure were identified in Williams v Brown

UKEAT/0044/19

as: “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 sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.”

[255]It is necessary for the disclosure to be of “information”, which may sometimes be distinguished from simply making an allegation (Cavendish Munro v Geduld

UKEAT/0195/09

), although subsequent authority makes clear that the fact that something is framed as an allegation does not necessarily mean that it cannot amount to a qualifying disclosure. The nature of a qualifying disclosure may be cumulative (Simpson v Cantor Fitzgerald

[2020] EWCA Civ 1601

), but “the need to identify the combination of communications relied upon, and the specific protected disclosure to which that combination gives rise, is not academic; it is a basic requirement in such claims.” (Simpson v Cantor Fitzgerald (EAT)

[2020] ICR 236

[256]A “qualifying disclosure” becomes a protected disclosure depending on who it is made to, but no issue arises on that in this case. Detriments

[257]Section 47B(1) of the Employment Rights Act 1996 provides that: “A worker has the right not to be subjected to any 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.”

[258]“Detriment” in whistleblowing is to be considered in the same way as for discrimination. That is, there will be a detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

). Causation and detriments Page 58 of 84

[259]Once the employee has proven (on the balance of probabilities) that they made a protected disclosure and suffered a detriment), section 48(2) of the Employment Rights Act 1996 applies as regards any connection between the two: “it is for the employer to show the ground on which any act, or deliberate failure to act, was done”.

[260]That is not to say that the employer must prove that the protected disclosures were not the cause of the relevant treatment. A failure by the employer to meet the requirements of s48(2) may lead to inferences being drawn against them, but “inferences drawn by tribunals in protected disclosures must be justified by the facts as found” (para 115, International Petroleum v Osipov

UKEAT/0058/17

[261]As to the degree of causation necessary to establish liability, the question is not whether the protected disclosure is the main cause of the detriment, nor whether the detriment would have occurred “but for” the protected disclosure. The test is whether the protected disclosure “materially influences” (in the sense of being more than a trivial influence) the treatment of the whistleblower (NHS Manchester v Fecitt

[2012] IRLR 64

). Causation and dismissal

[262]The position is different as regards dismissal. Dismissal of an employee cannot count as a detriment (s47B(2)). The employee must prove on the balance of probabilities that their protected disclosures were the reason or principal reason for their dismissal. DISCUSSION AND

Conclusions

[263]In broad terms the decisions we need to make are:a. What was the sixth alleged protected disclosure and was it in fact a protected disclosure?

b. Is the seventh alleged protected disclosure relevant to any alleged detriment?

c. What are the alleged detriments, did they occur, were they detriments and, if so, were any of them because of the claimant’s protected disclosures?

d. Were the claimant’s protected disclosure(s) the reason or principal reason for her dismissal? The sixth alleged protected disclosure(s) Page 59 of 84

[264]The sixth protected disclosure(s) concern the question of food bags received by the respondent at the start of the Covid-19 pandemic by the respondent and to what extent and under what circumstances they (or substitutes for them) were later returned.

[265]The relevant protected disclosure(s) are described in the order of EJ Eeley as being: “The claimant disclosed that bags of food and other equipment donated by charities and other organisations to the respondent during the Covid pandemic had not been returned or replaced; that she had been asked to lie and say that the bags of food were a gift rather than a loan to be replaced; that the food which was replaced was returned to the charity in a bin and was a lesser amount; that the replacements for the loans were inadequate; and that there was widespread misuse of donated items that did not go to the intended recipients The claimant made these disclosures verbally and in writing to Deborah Ashman and Karen Sinclair.”

[266]While it has long been the claimant’s case that she made protected disclosures about this, exactly what those disclosures were was unclear and something we encouraged the claimant to be as specific as possible during the hearing. While the respondent had accepted that the claimant’s first five protected disclosures or groups of disclosures occurred it did not accept that any element of the definition of protected disclosure was made out by the claimant in respect of her sixth disclosure(s), so the terms in which they were made would require careful consideration by the tribunal.

[267]While the claimant has at various times said various things about these food bags, including during the investigation, we know from EJ Eeley’s order that the relevant disclosures were made to Deborah Ashman and Karen Sinclair, not later to the investigator or to anyone else.

[268]In answer to the tribunal’s questions the claimant said that the first of her protected disclosures in relation to this was made on 22 June 2020 in a document sent by email to Deborah Ashman and copied to Karen Sinclair. There are three elements of this that she said were protected disclosures. These were: A “The more important issue is being blamed, lied to and tried to be set up”. B “Jayne suggested that as they were to the community so what. Well they haven’t all gone to the community and I reminded Jayne of grant funding. Grants are to and for the Stanwell community and therefore she is meant to serve them and not the local authority to give to whoever. At least not without agreement and acknowledgment.” Page 60 of 84 C “I am sure Jayne probably made an honest mistake but her trying to lie, accuse and cover up and then slam the phone down on my because I challenged is not acceptable.”

[269]The claimant’s witness evidence on this was comprised across two statements, the “protected disclosure statement” she had prepared for the hearing before EJ Eeley and the witness statement she had prepared for this hearing.

[270]The protected disclosure statement was, of course, specifically designed to identify what the claimant’s protected disclosures were.

[271]The element of the statement that addresses the protected disclosure(s) about food bags is under point 2.8, and starts “This protected disclosure has been particularised with great detail in my particulars of claim, in my appeal to the CEX and the further information to the CEX.”

[272]As for the reference to the protected disclosure being particularised in the particulars of claim, the claimant identified this as being the section of her particulars of claim said, “Further to my disclosure, document 1b, and further disclosures, please see document 1c (I and ii).” The claimant was of the view that the documents referred to should have been, but were not, in the bundle. After a break, the respondent said that it thought that these were some of the materials that had been provided to the Chief Executive. The claimant did not agree this, but did not provide us with any alternative materials during the hearing, nor, despite our invitation to do so, did not take us to any other material showing these protected disclosures.

[273]This section continues with a description of what happened with the original receipt of the food bags. She also says: “The disclosure I made on the 22nd June 2020 [which must be the email or statement we have referred to above] and subsequently added to via my email [what this was was not clear, and the claimant described it as “missing”] and also by food in v food out document … were made in accordance with the law. I made them in writing to my manager … Although the initial disclosure referred to the non-return of food-bags loaned to the authority by a charity. I subsequently and shortly afterwards also added and raised concerns about other items that had been in ‘the hub’ but had not been offered to any of the third sector charities I worked with. Further concerns were raised when I became aware that the food that was returned was returned in a bin.” and “The initial note I wrote to my managers [presumably the 22 June note] was to disclose the potential cover up. That I was asked to lie and that I prevented a miscarriage of justice … Page 61 of 84 … I also clearly raised concerns, again in writing, regarding other items at the hub that appeared to have gone missing …”

[274]The claimant goes on to assert that this amounted to whistleblowing.

[275]In her statement prepared for this hearing the claimant says, under the headings “Protected disclosures and detriments” and “the food bags and hub content”, “This is detailed in the evidence I gave to the investigator, in my protected disclosure statement and also in my appeal”.

[276]All of this leads to the practical problem that instead of the claimant’s witness statement(s), including one specifically directed at the question of protected disclosures, simply saying what it was that she wrote or said that amounted to a protected disclosure, we are sent in around a loop of documents to try to work out what the protected disclosure(s) might actually have been. The protected disclosure statement sends us to the particulars of the claim, which in turn sent us to documents we do not have but which may be the appeal and further information sent to the chief executive, which the claimant also refers to. The statement for this hearing sends us to the evidence given to the investigator and the appeal.

[277]The claimant’s appeal is set out in her “Grounds for appeal”, sent to the chief executive on 19 January 2021.

[278]Under the heading “protected disclosures” in this document, the appeal says: “Tracy made her initial protective disclosure on 22nd June 2020. Document 1B. After this she expressed two further concerns: - That food was returned in a bin - That other items were not offered to charities which she was told would happen - And that further food from Bookers was never purchased.”

[279]It seems clear that document 1B referred to here and in the particulars of claim is therefore the email or statement of 22 June 2020 that was identified during the hearing as potentially containing protected disclosures.

[280]What documents 1C(i) and (ii) are is less clear, but we think from the bundle it that 1C(i) is the “food in food out” document prepared by the claimant and 1C(ii) is an accompanying letter or email for that that the claimant prepared for the investigator. Neither of those were presented to Deborah Ashman or Karen Sinclair.

[281]As for the investigation, the investigator records what seems to be the fullest explanation by the claimant of this protected disclosure(s), starting: “The email and attachment send on the 22nd June are not to be considered the entirety of my whistle blowing. In addition to this Page 62 of 84 document I also gave information in related to the protected disclosure on: - 23 June 2020 during a telephone conversation with KS and JB, - In emails discussing the food bags and residual food at the Spelthorne hub, and - During my telephone conversation with TC on the 8th July.”

[282]We do not know what the emails mentioned in the second bullet point are, and a conversation with TC (Terry Collier) would not be part of the identified whistleblowing, which was only in communications with Deborah Ashman or Karen Sinclair.

[283]Later in this document the claimant seems to set out an analysis of the email or statement of 22 June 2020. She says (and we have added numbers to the paragraphs): “Turning to the document I sent to my two managers marked confidential, I would like to draw your attention to the following phrases contained within that document:• It’s rare for me to do this but there are three things which do grind my gears, blaming someone else, dishonesty and setting someone up. [1]

• When you experience all three it is hard for me to ‘suck it up’ and feel I need to instead ‘call it out.’ [2]

• She (JB) warned me that you (Deborah and my group head) think I am biased and that if I raise any issue I will be proving I am biased. I said that we cannot take from a charity? [3]

• Jayne informed me that the parcels went (or may be) going to the community (and some to our centres) and so what’s ‘her’ (referring to Anna Marie) problem. [4]

• I explained that Stanwell foodbank is a charity who stepped up with no notice and lent us food. Why on earth would an authority want to take that food? [5]

• During my second phone call Jayne kept saying why are you not listening, I have already said etcetera, which bore no relation to what I was saying. She used the term I am instructing you to .... And I was never saying no I was asking her why she is ignoring the fact that we are not giving back the 50 bags. She put the phone down. [6]

• She decided to amalgamate the Stanwell foodbanks parcels into our own stock. With no permission to do so. [7] Page 63 of 84

• She then decided, to ignore me and give things to the centres or retain the bags. [8]

• I asked her why she will not just admit that she made a mistake and let’s try and rectify it but she refused to apologise for firstly blaming me, then Stuart and then you for saying to give to all four. [9]

• Jayne suggested I lie to Anna M but I flatly refuse. The reason I have such a good relationship is because I am honest and do my best. Don’t ever ask me to lie because I won’t. [10]

• My suggestion, refused by Jayne, is that we give her 50 of our made up bags. And say we may well refer to her if we have need. [11]

• Jayne suggested that as they went to the community so what. Well they haven’t all gone to the community and I reminded Jayne of the grant funding. Grants are to and for the Stanwell community and therefore she is meant to serve them and not the local authority to give to whoever. At least not without agreement and acknowledgement. [12]

• I am sure Jayne probably made an honest mistake but her trying to lie, accuse and cover up and then slam the phone down on me because I challenged is not acceptable [13]

• And for the record, I do not think just because we did the electrics and the kitchen for the Pavilion we can treat Anna M this way. We did those things because she was a key supporter of our most deprived community and stepped up more than anyone else I know. [14] In the above document I have underlined the words that would have brought the authority into disrepute or are a criminal offence or designed to cover up a criminal offence …”

[284]We take it from what we have seen and heard that the protected disclosure(s), if any, that fall within category 6 of EJ Eeley’s order were contained in the claimant’s email or statement of 22 June 2020. Despite our invitation to do so the claimant has not identified for us any other document that contains disclosures falling with category 6 of EJ Eeley’s order, nor has she given evidence of any spoken protected disclosure that may fall within that category.

[285]There is nothing in that that is anything to do with the bins, so there was no protected disclosure about health and safety matters or returning food in bins. That leaves the disclosures (if any) as being about criminal offences or miscarriages of justice. Page 64 of 84

[286]The statement of 22 June 2020 is introduced by the claimant in the following way: “Dear Deborah I am aware that you have been brought into an incident with a half story. I attach the accurate version. I do not want to take this further (as a complaint) but remain unhappy about events. Please can you read this when you get a chance. I am not expecting a detailed reply and am carrying on carrying on.”

[287]The statement starts: “I am putting this in writing as am very upset by today’s events …”

[288]At the time the claimant wrote this statement it was intended as a record of her side of the story following a difficult conversation with Jayne Brownlow.

[289]It seems to us that the best way of proceeding is to set out the statement in full, identifying the points at which the claimant says she made protected disclosures (A-C for those mentioned during the hearing and 1-14 for those described to the investigator) and giving our analysis of whether those are or are not protected disclosures.

[290]The statement: “I am putting this in writing as am very upset by today's events. It’s rare for me to do this and I often have discussions with people that never make it to the written stage but there are three things which do grind my gears, blaming someone else, dishonesty and setting someone up.” [1] This is not a protected disclosure. There is no information disclosed in this, and while “dishonesty” may in some circumstances imply a criminal offence, none of the other points mentioned are criminal offences or miscarriages of justice and simply saying dishonesty without more does not suggest the commission of a criminal offence, nor do we see that the claimant could have reasonably considered it to do so. “When you experience all three it is hard for me to ‘suck it up’ and feel I need to instead ‘call it out.’” [2] Page 65 of 84 This is at most a description of the claimant’s possible intention to make protected disclosures, not a protected disclosure itself. “At this point my expectation is for you to read my email, understand the full context, agree with me, do a little tweak to what you were going to do and then move on. And so onto the rant ... So this morning I received a Whatsapp from Anna Marie about what food she is short of. I copied to the group. I had been in discussion with Anna Marie early doors for the councillor briefing and notes but never mentioned her parcels. Jayne told me it was being sorted. Brief history: At the start of us setting up our hub Stuart asked me if I could get 50 bags/parcels made up for us as he was having difficulty getting supplies in time and wanted to be ready to go Monday morning. Partly a press/councillor thing but also so we were battle ready. It was the weekend and I contacted St Saviours but no reply and then Stanwell who offered to come in on a Sunday (the next day) and make up 50 bags for us. At no point was this a gift but there was no agreed loan period. My understanding at the time is that it would make us ‘Covid ready’ for when the inevitable onslaught happened. This also included Jackie who collected them and dropped them at the leisure centre. When I was called in to make welfare visits I was instead asked to sort out the lists. They were using five separate spreadsheets and nobody had amalgamated them which I did straight away. We caught up. I then later did some welfare checks. During this time at the centre I noted the 50 food bags form Stanwell. I asked Jayne why we still had them because by that time we had a plentiful supply of needed food. Jayne didn’t know and suggested I check - so far so good. I rang Anna M to ask if she wanted the food bags back and she said yes. Stuart at this time was struggling with some supplies. And indicated that we may need to keep her bags as an emergency option and I called her up and she said that’s ok. Then two weeks ago Jayne asked me to pop into the leisure Centre and I did. She said she had been tasked with disbanding the food hub and wanted my view. I reminded her of the 50 food parcels that Stanwell Foodbank had loaned. This was in front of Sheila and possible Ashley. Page 66 of 84 She said that permission had been given to keep them. I was surprised and challenged this. Jayne said that I had said that at which point I said no and reminded her of our conversation with Anna M that was realtime. She then said Stuart. She said not to worry as they could give her back a similar amount. I was left fully believing that we were going to return to the foodbank that which they had loaned. Sheila was party to this and actually was in agreement that Stanwell should get back what they loaned before anyone else received anything. Jayne showed me bedding, crockery, loads of massive bags of tea and rows of tine. There were also nearly 100 food bags. I said that the foodbanks could use it all and street angels the bedding. Then this morning I received a list form Sheila which quite honestly shocked me. Although some items had a few such as tomato soup many items were a tin of this and a tin of that. I responded asking about the food bags that Stanwell loaned us at the start by making them at silly o clock on a Sunday. I then called Jayne. Firstly I was told that I had told her that Anna M had said that, but when I reminded her of my witnessed conversation she then said Stuart had said. She warned me that you (Deborah and my group head) think I am biased and that if I raise any issue I will be proving I am biased. I said that we cannot take from a charity?” [3] This is not a protected disclosure. Saying that if someone raises an issue they will be proving they are biased is not anything to do with a criminal offence or a miscarriage of justice. “Take from a charity” is not itself an allegation of a criminal act. The claimant cannot reasonably have considered this to amount to information suggesting that a criminal offence or miscarriage of justice may be occurring. “Jayne informed me that the parcels went (or may be) going to the community (and some to our centres) and so what’s ‘her’ problem.” [4] We do not see how this can be said to be a protected disclosure. “I explained that Stanwell foodbank is a charity who stepped up with no notice and lent us food. Why on earth would an authority want to take that food?” [5] Asking this question does not amount to a protected disclosure. Page 67 of 84 “We then had a robust discussion about things whereby Stuart Mann was the one to blame for the confusion. I doubted he had said what I was informed. I then had a further call from Jayne. This caused me the most concern. She said that you had instructed her what to tell me. It appeared that I was a disobedient child. It was fairly patronising but I did challenge and ask for clarification. She did not say that she had spoken to Stuart whose version of events completely accorded to mine. Just to be clear – the 50 food bags is not the issue. The more important issue is being blamed, lied to and tried to be set up.” [A] Being blamed, lied to or tried to be set up is not a miscarriage of justice nor an allegation of a criminal act, and the claimant cannot reasonably have considered this to amount to a disclosure of a miscarriage of justice nor a criminal act. “I am not a fool. If you are talking to me and saying out loud things that I have not said I know you are playing to a third party audience. An audience who will only see what you chose them to and will not hear me saying ‘eh’ what’ ‘why are you saying that’. During my second phone call Jayne kept saying why are you not listening, I have already said etcetera, which bore no relation to what I was saying. She used the term I am instructing you to ... And I was never saying no I was asking her why she is ignoring the fact that we are not giving back the 50 bags. She put the phone down.” [6] The claimant cannot have reasonably considered that “ignoring the fact that we are not giving back the 50 bags” was information suggesting either a criminal office or a miscarriage of justice. “At this point I decided I would need to escalate. I would hope that you know that I have great integrity. Am honest and do my very best. To be blamed for Jayne making two very bad decisions is completely unfair. She decided to amalgamate the Stanwell foodbanks parcels into our own stock. With no permission to do so.” [7] An allegation of amalgamating stock without permission to do so cannot reasonably have been considered by the claimant to be an allegation of a criminal offence nor of any miscarriage of justice. Page 68 of 84 “She then decided, notwithstanding both mine and Sheila’s agreement, that Stanwell foodbank should have their parcels back first, to ignore me and give things to the centres or retain the bags.” [8] This is not a protected disclosure. “I asked her why she will not just admit that she made a mistake and let’s try and rectify it but she refused to apologise for firstly blaming me, then Stuart and then you for saying to give to all four.” [9] This is not a protected disclosure. “Up until now I was quite fond of Jayne and although she moans a bit to me I took that as friendship. Not now. It reminded me of the drunken man walking backwards from the police so on the CCTV he looks like he is innocent but all the time he is calling the policeman or security guard all the names under the sun. I guess she has tried to change events but just so you know I have ALL the relevant messages, but would prefer not to work with her like this again. I think she made a bad call and then an even worse one in trying to pass blame. In terms of moving forward Anna M still wants her packages back and Jayne has given most to our centres and who knows where as there was so much before, but now not much at all. Jayne suggested I lie to Anna M but I flatly refuse. The reason I have such a good relationship is because I am honest and do my best. Don’t ever ask me to lie because I won’t.” [10] Saying that the claimant has been asked to lie does not (without more) amount to information that there has been a criminal offence or a miscarriage of justice, and cannot reasonably have been considered by the claimant to been such. “My suggestion, refused by Jayne, is that we give her 50 of our made up bags. And say we may well refer to her if we have need.” [11] This is not a protected disclosure. “Obviously if we do have a second spike we may need to fund further packages but I would rather her have back what we received from her. In terms of the foodbank and Jayne’s criticism that I am biased. She’s is dead right. I favour the organisations that help and are communicative and flex with need. I favour those that step up and work their hardest when the rest of us who are paid far more cannot or don’t. I favour those Page 69 of 84 that on a Sunday morning left their own kids to make us bags. Yeap I favour them. I still work and support all but they have proved themselves. More meals than anyone could have imagined. TBF she probably could go without them being returned. But if she had gifted them she would want a press release thanking her for her efforts and the extra effort she made. At no notice to support a local authority and she should be entitled to that, Jayne suggested that as they went to the community so what. Well they haven’t all gone to the community and I reminded Jayne of the grant funding. Grants are to and for the Stanwell community and therefore she is meant to serve them and not the local authority to give to whoever. At least not without agreement and acknowledgement.” [12] [B] This is not a protected disclosure. “I am sure Jayne probably made an honest mistake but her trying to lie, accuse and cover up and then slam the phone down on me because I challenged is not acceptable.” [13] [C] This is not a protected disclosure. “I am sure she thinks my attitude is not acceptable. But I will always stand up for what is right. You can be the most senior person in the world, you could hold my career, my finances and my life. But if you are wrong, you are wrong. I have all my evidence and other people who can say what actually happened. And for the record, I do not think just because we did the electrics and the kitchen for the Pavilion we can treat Anna M this way. We did those things because she was a key supporter of our most deprived community and stepped up more than anyone else I know.” [14] This is not a protected disclosure. “I am not expecting a detailed reply but it would be nice to know that you have read this and can see where I am coming from. I also hope that given my three last placed positions in a quiz will show that I am honest even when it is to my detriment. Please excuse the rant.”

[291]Bearing in mind that protected disclosures may be cumulative, or require a consideration of context rather than a focus on particular phrases, we have also considered whether taken overall this document may amount to a protected disclosure. Page 70 of 84

[292]A striking feature of this is that if this document had been meant by the claimant at the time as raising serious issues of a criminal offence or a miscarriage of justice it would have been easy for her to say so in the document by, for instance, explicitly saying that the respondent was stealing food from the food bank and orchestrating some sort of miscarriage of justice. But the nature and tone of the document, taken as a whole, is quite different from that. At the end of the document the claimant identifies it as being a “rant” and says that “I am not expecting a detailed reply”, the clear implication of which is not so much that she is raising serious issues concerning a criminal offence but more that she is getting something off her chest or putting her side of the story. So far as a criminal offence is concerned, the claimant goes so far as to say that “I am sure Jayne probably made an honest mistake”, which is effectively the opposite of any allegation of a criminal offence. Taking the document as a whole simply reinforces our view that there it contains no protected disclosure(s).

[293]We have taken time to go through this document, but do not see anything in it that amounts to a protected disclosure. There was no sixth protected disclosure(s). The seventh alleged protected disclosure(s)

[294]The seventh alleged protected disclosure(s) is or are: “The claimant disclosed that she was aware of other staff who felt bullied and had been suspended which had resulted in them feeling suicidal. There was a pattern of bullying and suspending such individuals. The claimant made this disclosure during the course of her appeal procedure. She was a signatory to a joint email from four people to the Chief Executive in March 2021, she sent the Chief Executive a written document in April 2021 and made verbal disclosures in a phone call with the Chief Executive, the respondent’s Head of Legal and Francis Kavanagh around 15th April 2021.”

[295]This alleged disclosure or disclosures was made (if at all) in March – April 2021 during the appeal process.

[296]As we have mentioned before, on the face of it this post-dates any of the alleged detriments, which culminate in the claimant’s dismissal in January 2021. If there are no detriments after January 2021 an alleged protected disclosure made in March-April 2021 cannot have caused those detriments.

[297]In her oral closing submissions the claimant suggested that this seventh alleged protected disclosure had affected Mr Mouawad’s decision not to hear her appeal against the outcome of the whistleblowing report, although the written element of her closing submissions does not make that link. Page 71 of 84

[298]As is set out in our fact finding, Mr Mouawad declined to get involved in any appeal against the whistleblowing report findings in late November 2020, which was a long time before the alleged seventh disclosure.

[299]The claimant’s written notes of her closing submissions at appendix 2 say that the seventh alleged protected disclosure was a cause of detriments such as ignoring requests for data or policy or procedures, the delay in interviewing her during the investigation process, a failure to refer her to occupational health, failure to speak to the crisis team, ignoring her MED3 and removal of access to printers or being unable to speak to people. But hardly any of those are said to be done by Mr Mouawad, and none of them seem to have any application to the period after her dismissal. After her dismissal there could be no question of her, for instance, having access to printers, nor could there be any real question of the respondent sending an ex-employee for an occupational health examination. The MED3 had long since expired, and matters such as requests for policies and procedures and delays in interviewing her had long since passed. There is no detriment that could have been caused by the seventh alleged protected disclosure(s), and on that basis we do not need to look any further into the alleged protected disclosure(s) and whether it could count as a protected disclosure(s).

[300]We will move on to look at the alleged detriments, using the categorisation the claimant adopted in her closing submissions, as recorded at appendix 2. Detriments – group 1 – pre-investigation 2. Ostracise the claimant from key meetings

[301]As with several of the alleged detriments it is not clear what the claimant has in mind in this case. Appendix 2 references multiple different people as being responsible for this. The only instance we heard of in evidence concerned the “CW” meeting, but this was outside the timeframe set out by the claimant in the “pre-investigation” group of detriments, which was February 2019 to 8 July 2020. There was no ostracisation from meetings in the period February 2019 to 8 July 2020. 13 & 14. Fail to refer the claimant to occupational support. Only offer a coach. When the claimant stated she was being affected mentally and physically still offer only a coach

[302]In the relevant period we think this relates to the claimant not being referred to occupational health when she was found falling asleep at work, but we have been given no indication of why this referral should have happened, nor any indication of what connection there may have been between the protected disclosures and the failure to refer her to occupational health. The respondent was not obliged to refer the claimant to occupational health in this period, and we do not see anything from which we could properly conclude that a failure to Page 72 of 84 refer her to occupational health during this period was anything to do with any 18 & 19. No access to print documents. Unable to speak to people.

[303]The “no access to print documents” alleged detriment in this time period relates to the claimant not being able to attend Knowle Green during periods of Covid19 lockdown. This was a consequence of the respondent’s Covid-19 precautions in accordance with national restrictions that were then in force, not a consequence of any protected disclosures. If it is the claimant’s position that her not being included within any work “bubble” was a consequence of her protected disclosures, we see no evidence that that was the case.

[304]As far as we are aware there was no restriction on the claimant’s ability to speak to people in the period prior to her suspension. Detriments – group 2 – the investigation and suspensions 1. Suspend and investigate the claimant

[305]It is certainly the case that the claimant was suspended (twice) and investigated. She says that this was a decision taken by Terry Collier and that it arose as a result of PD6.

[306]We have found that PD6 was not a protected disclosure, so any claim of detriment based on that must be dismissed.

[307]Having said that, even if PD6 was a protected disclosure we see nothing to suggest that it caused the claimant’s suspension(s) and the investigation to be commissioned. 2. Ostracise the claimant from key meetings

[308]In the timeframe identified for these group 2 detriments this must relate to the “CW” meetings around August 2020. We have identified above a colleague expressing surprise that the claimant was not at the meetings.

[309]Other than the fact that the claimant had been identified as not being present at those meetings we heard very little from either party as to what those meetings were, whether the claimant should have been present at them and why she was not. The claimant ascribes responsibility for the alleged ostracisation to Karen Sinclair and Deborah Ashman, but there is nothing in the evidence before us from which we could properly conclude that the claimant had been subject to any ostracisation because of having made protected disclosures 3. Deprive the claimant of key information Page 73 of 84

[310]This is described by the claimant as “removing me from group emails”. She says that it occurred in July and August – presumably July and August 2020 given that this detriment is said to fall within the period of the suspension(s) and investigation. In her closing submissions the claimant identified this as having been caused by PD6, so this element of her claim cannot succeed where we have found PD6 was not a protected disclosure.

[311]We have identified in our findings of fact a couple of occasions when the claimant says that she was removed from group emails, but our findings do not suggest to us that this was anything to do with any protected disclosure(s), and one is outside the time period she now identified. 4. Ignore complaints about the investigation 5 & 6. Ignore data requests. Ignore requests for policy and procedures. 7. Misinform staff and fish for complaints about the claimant 8. Fail to interview the claimant for over three months then blame the claimant 9. Produce notes that lack accuracy. The notes contain unsubstantiated allegations about events over a year ago.

[312]We have taken these alleged detriments together as they related to a broad criticism by the claimant of the conduct of the investigation carried out by Jennifer McNeill (and sometimes in respect of the actions of Terry Collier).

[313]It is clear that the claimant was not happy with the scope of the investigation nor the information she was given about it. Much of this derives from the claimant’s dissatisfaction with the fact that there was an investigation in the first place (an alleged detriment we have addressed earlier).

[314]We have established in our findings of fact that the respondent viewed this as being a unique situation, not covered by any of their documented policies and procedures, and we accept that Jennifer McNeill’s investigation was not proceeding by reference to any documented policy and procedure. When the claimant says that the respondent “ignore[d] request for policy and procedure”, the answer to that is that the respondent was not following any established policy or procedure so was not in a position to provide the material the claimant requested.

[315]On the question of when the claimant was interviewed, we have set out above that if things had proceeded as intended by Ms McNeill the claimant would have been interviewed at a much earlier stage. The claimant’s late interview was a result of her objections to being interviewed, not a detriment by the respondent on account of her protected disclosures.

[316]On the whole, the claimant’s criticism of the process during the investigation is directed at Ms McNeill. Ms McNeill has explained her conduct of the Page 74 of 84 investigation and we see no obvious faults with it. As outlined earlier, the claimant has given us no real idea of what it was about her protected disclosures that lead Ms McNeill to act in the way she did, nor has there been any real suggestion that Ms McNeill acted to the claimant’s detriment during the investigation.

[317]It will have been clear to everyone involved once the investigation had been commissioned (which we have found was not a whistleblowing detriment) that the investigation would not be a straightforward matter. In large part that was due to the claimant’s response to the investigation. We see nothing in the conduct of the investigation from which we could properly conclude that Ms McNeill acted to the claimant’s detriment on account of any whistleblowing disclosures the claimant had made.

[318]As for the notes, we have recorded that the claimant was given the opportunity to make corrections, but did not do so. If it was the case that the notes had been deliberately mis-recorded as an attempted detriment against the claimant for her protected disclosures it seems to us very unlikely that the respondent would have invited the claimant to make corrections in the way it did. This was not a detriment caused by protected disclosures. 10. Refuse to consider my appeal about the whistleblowing

[319]This has two aspects. The first is Terry Collier saying that there is no right of appeal under the Confidential Reporting Code, and the second is Mr Mouwand refusing to address the appeal the claimant attempted to make.

[320]Mr Mouwand explained at the time why he did this: “protocol prevents me from reading it because as CEX I am purposely kept out of such matters in case I need to arbitrate at the final concluding stages.” We accept that explanation. We also accept that Mr Collier was correct to say there was “no right of appeal in the Confidential Reporting Code”. Neither of these were detriments caused by the claimant’s protected disclosures. 11 & 12. Give the claimant different line management with only one one-to-one and limited support. Heavy workload and no support.

[321]It is true that the claimant was, on her initial suspension and for the period of the investigation, given different line management: Terry Collier. We have explained in our findings of fact how this came about. It is difficult to see how they could have done otherwise given the mutual complaints that had been made by the claimant against her line managers (not protected disclosure complaints) and the complaints the line managers had made. This was not an act of detriment caused by the claimant’s protected disclosures.

[322]As the respondent pointed out in its response to the claimant’s document describing her protected disclosures, the second element of this alleged detriment is not made out on the facts. The documents in the bundle show that Page 75 of 84 there were at least three one-to-one meetings between her and Terry Collier in this time, on 6 October 2020, 6 November 2020 and 10 November 2020.

[323]We see nothing to suggest that the claimant was overworked during this period because of her protected disclosure(s). 13 & 14. Fail to refer the claimant to occupational support. Only offer a coach when the claimant stated she was being affected mentally and physically still only offer a coach.

[324]The offering of a coach relates to the period prior to the claimant’s suspension. No coach was offered during the period of suspension or investigation.

[325]It is not clear in what way these alleged detriments relate to the period of the suspension and investigation. The claimant talks in the details of her alleged detriments of possible referral in November 2019 or June 2020, both of which have been dealt with above. Some of this may relate to the respondent not contacting the crisis team, but that is an alleged detriment in its own right. We do not see any basis on which the respondent should have referred the claimant to occupational health during the period of the initial suspension and investigation and do not see that a failure to do so amounted to a detriment caused by protected disclosures. 15, 16 & 17. Fail to communicate a clear outcome of the investigation until the 4th December. Immediately cut off her phone and laptop in doing so deprive her of access to documents.

[326]It isn’t clear what the first element of the alleged detriment is supposed to be. It is true that the outcome of the investigation was not given until 4 December, but it is not clear why the claimant considers this to be a whistleblowing detriment, nor when she says the outcome of the investigation should have been communicated. We do not see that this can be considered to be a detriment caused by protected disclosures.

[327]The second element seems to be a reference to her second suspension, described at the time as being because she had disclosed the whistleblowing report to the chief executive and leader of the council and “the serious nature of the matters within the report”. We do not see any reason to doubt this explanation, and neither element of the explanation is that this happened to her because of any protected disclosures. 18 & 19. No access to print documents. Unable to speak to people.

[328]The question of access to print documents relates to the Covid bubble and (possibly) the claimant’s second suspension. Being unable to speak to people seems to relate to the claimant’s second suspension. For the reasons given above we do not consider that the claimant’s second suspension was anything to do with her protected disclosure(s). Page 76 of 84 Detriments – group 3 – the hearing 21 & 24. Send staff to the claimant’s house twice. Conduct described by the police as disgraceful and possibly a criminal offence.

[329]Staff were sent to the claimant’s house twice – on one occasion a member of the respondent’s staff and on another occasion an independent courier. This was to ensure that matters relevant to the claimant’s hearing were hand delivered to her. It was not because of her protected disclosure(s) and there was no evidence before us that either of the relevant couriers (who had had no personal involvement in the matter) had been given any particular instructions as to how to behave on that delivery, or to act in the way that the claimant subsequently objected to. These were not detriments caused by protected disclosure(s). 23. Ignore the offer from the crisis team (and the GP) to discuss the claimant’s health. 26. Fail to talk to the crisis team, get occupational health support or conduct a stress risk assessment. 25. After intervention from a number of parties only postpone to a period still covered by the MED3. 20 & 22. Ignoring the MED3. Refuse a postponement and state that the MED3 is irrelevant.

[330]Each of these alleged detriments relate to the respondent’s response to the medical information submitted by the claimant in the lead up to the intended hearing, and Jackie Taylor’s response (or lack of response) to it.

[331]We have set out in our findings of fact what occurred and the explanations given by the respondent for their actions at the time. For each of the alleged detriments the facts alleged by the claimant occurred. For instance, the respondent did not contact the crisis team nor commission occupational health advice. The hearing was postponed to a period covered by the MED3. Whether this amounts to ignoring the MED3 is debatable, and we do not think that Jackie Taylor actually used the word “irrelevant” in relation to the MED3, but she does says “Your Statement of Fitness Work is in regard to your full time work and does not prevent you from attending this Hearing.”

[332]The question is whether any of this was caused by the claimant’s protected disclosure(s).

[333]There is no direct evidence that the claimant’s protected disclosures played any part in Ms Taylor’s response to the claimant’s medical condition.

[334]The explanations given by the respondent for its actions appear credible. It is correct to say that while a MED3 may explain absence from work it does not of itself suggest that a hearing should be postponed. Increasingly in our Page 77 of 84 experience employers are not accepting MED3 certificates as being a good reason for postponing hearings, and are adopting the position adopted by Ms Taylor that “To delay could exacerbate your condition as it is prolonging a conclusion to this difficult situation.” It would be very rare in our experience for an employer to take something like the “If further clarification is required …” statement as an invitation to ring and see what more can be discovered.

[335]Ultimately the respondent has given a good explanation of their actions, which is nothing to do with the protected disclosures. The claimant had not given us anything from which we could properly draw an inference that her protected disclosures had any impact on this response to her medical evidence. In those circumstances we are satisfied that the respondent’s actions in response to this had nothing to do with the claimant’s protected disclosures. Dismissal

[336]There remains the question of the claimant’s dismissal, and whether she has shown that the reason or principal reason for her dismissal was her protected

[337]It will be apparent from what has preceded this section that we find that she had not shown that the reason or principal reason for her dismissal was her protected disclosures. We accept the respondent’s position as to the reason for the claimant’s dismissal.

Conclusion

[338]The claimant’s claims are dismissed.

[339]In the light of our decision the remedy hearing provisionally listed for 28-30 April 2025 is vacated and will not take place.