Mr I Abbott and Mr T Everett v Royal Mail Group Ltd: 2302187/2023 and 2302188/2023
EMPLOYMENT TRIBUNALS
Case No 2302187/2023, 2302188/2023
Between
Mr I Abbott and Mr T EverettClaimantRoyal Mail Group LtdRespondent
Before
Employment Judge McLarenMr Abbott acting for himself and Mr Everett. for claimantMs K Faulkner (instructed by solicitor) for respondentMr. Abbott acting for himself and Mr. Everett. for claimantDate 18 February 2025
JUDGMENT
BY CONSENT The respondent having conceded the claims for unlawful deduction from wages the following awards are made.[1]Mr Abbott is awarded £6,628.16[2]Mr Everett is awarded £7597.95
REASONS
[1]In summary both claimants worked in a particular area of the Dartford mail processing unit. In December 2021 concerns came to light about the high level of overtime hours being worked by staff in this area and both claimants were invited to fact-finding meetings, following this the disciplinary process started and both were dismissed for gross misconduct.[2]The claimants believe that they were discriminated against because the allegations were determined without their full participation. They were absent as a result of their disabilities. They rely on depression and anxiety. The respondent accepts both individuals were disabled from the 12 month anniversary of their first absence. That does not cover all of the relevant dates.
The claims
[3]Both claimants bring claims of disability discrimination, unfair dismissal and non- payment of wages. A claim of sex discrimination brought by Mr. Abbott was previously withdrawn. The respondents have now conceded the unpaid wages
claims.
[4]There had been a case management hearing on 18 November 2024 at which the claims were considered. An issues list was drafted and was sent to the parties. They were asked to confirm that this was a correct and complete list. The Case No: 2302187/2023 &2302188/2023 respondent confirmed that it was. The claimants indicated by return that it was not. Mr. Everett stated that he also considered that he was bringing a claim for whistleblowing in the same terms as Mr. Abbott. Both also confirmed that they believed they were bringing claims for automatically unfair dismissal by reason of whistleblowing. The respondent objected to an expansion of the issues list to include any of these points. It was left to the morning of the hearing to consider the position.[5]At that point the claimants confirmed that they wish to pursue an application to amend. Application to amend The law relating to amendment of claims[6]The power to amend is a general case management power (Rule 29 of the 2013 Rules of Procedure). I need to consider whether to grant or refuse the application to amend is in accordance with the Overriding Objective.[7]The power to amend is a judicial discretion to be exercised “in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions”: see Selkent Bus Co v Moore [1996] IRLR 661. I have reminded myself of the guidance in Selkent and the Presidential Guidance at relevant paragraphs.[8]In short, whenever the discretion to grant an amendment was invoked, a Tribunal should take into account all the circumstances, including the nature of the amendment, the applicability of time limits and the timing and manner of the application, before balancing the hardship and injustice of allowing the amendment against the injustice and hardship of refusing it.[9]I reminded myself that the circumstances to be taken into account will vary depending on the case (i) Nature of the amendment[10]The Presidential Guidance, para 6, draws a distinction between amendments seeking to add or substitute a new claim arising out of the same facts as the original claim and those which add a new claim entirely unconnected with the original claim. The entirety of the Claim form must be considered: para 7 Presidential Guidance.[11]In order to determine whether the amendment amounts to a wholly new claim, as opposed to adding or substituting a new cause of action linked to or arising out of the same facts as the original complaint, it will be necessary to examine the case as set out in the Claim to see if it provides a causative link with the proposed amendment: see Para 11 of the Presidential Guidance. (ii) Time Limits and Manner of application[12]Time limits are required to be considered where there are entirely new claims unconnected with the original claim as pleaded. Case No: 2302187/2023 &2302188/2023 (iii) Balance of hardship and assessing all the circumstances[13]In balancing the hardship of allowing or refusing the application, the merits of the proposed new complaint may be relevant, at least where it has no reasonable prospect of success. The Claimant has lost nothing by the refusal; and the Respondent should not suffer the expense of defending such a complaint.[14]The degree of extra factual evidence is a relevant factor. If the scope is increased widely, this will add costs for both parties especially to the Respondent defending a claim. Summary of submissions[15]I heard submissions from both parties on the question of whether I should allow Mr. Abbott to bring a claim for automatically unfair dismissal by reason of whistleblowing and Mr. Everett to bring claims for detriment and automatically unfair dismissal on the same grounds.[16]It was Mr. Abbott’s position that in his case this was not an amendment. He considered that is claim form was clear that the dismissal was because of whistleblowing. He accepted that Mr. Everett’s claim form made no reference to whistleblowing and in his case the application amounted to an amendment.[17]Counsel for the respondent reminded me of the principal in Chandok v Tirkey [2015] IRLR 195 that the claim form is not just something to start the ball rolling but should set out all the claims so that the respondent can understand the case it is to answer.[18]It was his submission that Mr. Abbott’s claim form made no express reference to whistleblowing as the major cause of the dismissal. It was simply not set out. In terms of prejudice, while Mr. Choudry accepted that no more documents or witnesses would be required to address these points there would be a significant shift in the witness evidence required from Mrs Smith. There would also need to be additional evidence from the disciplinary decision maker and the appeal chair. Decision on amendment application[19]Having considered Mr. Abbott’s case first, I’m satisfied that his claim form does not indicate a claim for automatically unfair dismissal whistleblowing. I had considered the nature of his claim in some detail on 18 November at the previous case management hearing and on that occasion I had reviewed additional documentation he had sent in expanding on the details of claim and had a detailed conversation with him. At that point he did not identify this claim to me and I put together a list of issues which I understood to be a full list of those issues. That did not include claims for Mr. Everett in relation to whistleblowing or a claim for automatically unfair dismissal for Mr. Abbott. On revisiting Mr. Abbott’s claim form today, I am of the same view. It does not bring a claim of automatically unfair dismissal on the grounds of whistleblowing. Mr. Everett’s claim does not reference whistleblowing and the claimants accepted this.[20]I conclude therefore that for both individuals inclusion of these additional claims would be an amendment. This is not a case of simply relabelling. The amendment is Case No: 2302187/2023 &2302188/2023 a substantial one bringing a wholly new head of claim for Mr. Abbott and it would amount to a substantial expansion of Mr. Everett’s claim.[21]The claims are significantly out of time and it would have been reasonably practicable for the claimants to have brought them in time. They say they always knew that this was their case and therefore could have set it out in the ET1.[22]In terms of hardship, the respondent would require different witness evidence and we are at day one of the hearing. Looking at matters in the round one it is always difficult for a claimant who is not allowed to bring a particular claim. On this occasion the claimants still have their claims for unfair dismissal. If they believe that the decision maker was biased against them for other reasons than they would succeed in the unfair dismissal claim. Conduct would not be the reason. What they are being deprived of its additional remedy if their claim succeeds. On balance, I think that hardship would lie on the respondent as they would need to take significant additional evidence from a number of witnesses.[23]For these reasons I am refusing the amendment application. Application for the inclusion of additional documents[24]After eight days of evidence we agreed that the case would be relisted for oral submissions and oral judgement. I ordered the parties to exchange written submissions in advance, conscious that the claimants are unrepresented. When I received written submissions it included an application from the respondent to produce new documentary evidence.[25]I discussed this with the respondent’s representative who confirmed that they also had the relevant witness present who could be cross examined on these documents. They related to the question of meta data and the date on which a document was prepared. Mr Chaudhry apologised for the very late application and acknowledged that it was out of the ordinary to do this. He also explained, however, that the respondents had not been able to understand the point the claimant was making on the meta data until this was raised in cross examination of Mrs Knight Smith. They had subsequently been able to obtain information which included the cover email sent by Mrs Knight Smith to her boss and a Gan report which would indicate that the report had been prepared when Mrs Knight Smith recollected she had done this and not at the very much later date the claimant was suggesting.[26]Mr Abbott objected to this late application. He made it clear that they had been asking for the cover email we sent the report to Mrs Knight Smith’s boss and had been told that it did not exist.[27]I reflected on the matter. While I understand the respondent’s position and sympathise with their perspective that they were not aware this was a point in issue, I’ve also considered the fact that the claimants are unrepresented. To request additional documents and futher cross examination in submissions when evidence has closed represents a particular challenges for litigants in person.[28]Mrs Knight Smith has already given evidence on the date which she said she prepared the report and I have the documents on which the claimants rely. I do not Case No: 2302187/2023 &2302188/2023 think that I would be sufficiently assisted by further documentation, which the claimants indicated they would dispute, in reaching a decision as to when the report was prepared. For this reason, looking at matters in the round and considering the balance of prejudice and the overriding objective I refuse the respondent’s application. The complaints and issues[29]The Claims brought and the issues therefore remain as set out at the hearing on 18 November 2024. The claimants are making complaints of Unfair dismissal, Direct disability discrimination, Discrimination arising from disability, Failure to make reasonable adjustments. In addition Mr. Abbott claims detriment for making protected disclosures.[30]I have set out below the issues list as agreed. 1. Time limits1.1 1. Time limits 1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 22 December 2022 (in the case of Mr. Abbott) or 25 December 2022 (in the case of Mr. Everett) may not have been brought in time.1.2 Were the discrimination complaints (5.1.1, 5.1.2 and 6) made within the time limit in section123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months(plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal intime?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?1.3 Were the whistleblowing complaints made within the time limit in section 48(3) ERA 1996? The Tribunal will decide:1.3.1 Was the claim made to the Tribunal before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them?1.3.2 If not, was it made within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. Case No: 2302187/2023 &2302188/2023 2. Unfair dismissal2.1 The claimants were both dismissed by the respondent with effect on 18 March 2023.2.2 What was the reason or principal reason for dismissal? The respondent says the reason was conduct in both cases. The Tribunal will need to decide whether the respondent genuinely believed the claimants had committed misconduct.2.3 If the reason was misconduct, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:2.3.1 there were reasonable grounds for that belief.2.3.2 at the time the belief was formed the respondent had carried out a reasonable investigation.2.3.3 the respondent otherwise acted in a procedurally fair manner.2.3.4 dismissal was within the range of reasonable responses.2.4 Is there a chance that the claimants would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?2.5 If so, should the claimants’ compensation be reduced? By how much?2.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?2.7 Did the respondent or the claimants unreasonably fail to comply with it?2.8 If so is it just and equitable to increase or decrease any award payable to the claimants? By what proportion, up to 25%?2.9 If the claimants were unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?2.10 If so, would it be just and equitable to reduce the claimants’ compensatory award? By what proportion?2.11 What basic award is payable to the claimants, if any?2.12 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? Case No: 2302187/2023 &2302188/2023 3. Disability3.1 Did the claimants have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:3.1.1 Did they have the mental impairment of anxiety and depression?3.1.2 Did it have a substantial adverse effect on their ability to carry out day-to-day activities?3.1.3 If not, did the claimants have medical treatment, including medication, or take other measures to treat or correct the impairment?3.1.4 Would the impairment have had a substantial adverse effect on their ability to carry out day-to-day activities without the treatment or other measures?3.1.5 Were the effects of the impairment long-term? The Tribunal will decide:3.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?3.1.5.2 if not, were they likely to recur?3.2 The respondent has made certain concessions in respect of disability:3.2.1 In the case of Mr. Abbott, it is conceded that he was a disabled person from 25 February 2023 onwards, that date being 12 months after his initial diagnosis.3.2.2 In the case of Mr. Everett, it is conceded that he was a disabled person from 28 February 2023, that date being 12 months after his initial diagnosis. 4. Direct disability discrimination (Equality Act 2010 section 13)4.1 Did the respondent do the following things: 4.1.1 Waqar Hassan decided to dismiss the claimants on 18 March2023?4.2 Was that less favourable treatment? The Tribunal will decide whether each claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimants’. If there was nobody in the same circumstances as the claimants, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimants have not named anyone in particular who they say was treated better than they were.4.3 If so, was it because of disability? 5. Discrimination arising from disability (Equality Act 2010 section 15)5.1 Did the respondent treat the claimants unfavourably by: Case No: 2302187/2023 &2302188/20235.1.1 Reducing their pay from full to half-pay, with effect from 15 August 2022.5.1.2 Colin Threlkeld (fact-finding manager/investigator) deciding on 1 December 2022 to recommend that the claimants’ cases proceed to the disciplinary stage without their full involvement in the investigatory process.5.1.3 Waqar Hassan (disciplinary manager) deciding on 18 March 2023 to proceed to determine the disciplinary allegations against the claimants without their full participation on the disciplinary process; and,5.1.4 Waqar Hassan deciding to dismiss the claimants on 18 March 2023.5.2 Did the following things arise in consequence of the claimants’ disability:5.2.1 Their sickness absence; and,5.2.2 Their inability to fully participate in investigatory and disciplinary procedures?5.3 Was the unfavourable treatment set out at 5.1.1 because of the claimants’ sickness absence?5.4 Was the unfavourable treatment set out at 5.1.2 to 5.1.4 because of the claimants’ inability to fully participate in investigatory and disciplinary procedures?5.5 Was the treatment a proportionate means of achieving a legitimate aim? In respect of the unfavourable treatment set out at 5.1.2 to 5.1.4,the respondent says that its aims were:5.5.1 The effective control of management and company finance.5.5.2 Maintaining appropriate standards of conduct in the workplace;5.5.3 To make it clear that claiming excessive payments without authorisation and for hours not worked was unacceptable.5.6 The Tribunal will decide in particular:5.6.1 Was the treatment an appropriate and reasonably necessary way to achieve those aims.5.6.2 Could something less discriminatory have been done instead.5.6.3 How should the needs of the claimants and the respondent be balanced?5.7 Did the respondent know, or could it reasonably have been expected to know that the claimant had the disability? From what date? 6. Reasonable Adjustments (Equality Act 2010 sections 20 & 21)6.1 Did the respondent know, or could it reasonably have been expected to know that the claimants had the disability? From what date? Case No: 2302187/2023 &2302188/20236.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 6.2.1 A practice of conducting disciplinary investigations by means of inperson/face-to-face meetings. 6.2.2A practice of conducting the disciplinary stage of its procedure by imposing deadlines; and/or, 6.2.3 A practice of making decisions to dismiss employees without the full participation of those employees in the disciplinary process.6.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimants’ disability, in that:6.3.1 They found it difficult or impossible to attend in-person/face-to-face meetings.6.3.2 They found it difficult or impossible to comply with the deadlines; and,6.3.3 There was a greater likelihood of the claimants being dismissed in a context where they could only manage partial participation or were unable to participate?6.4 Did the respondent know, or could it reasonably have been expected to know that the claimants were likely to be placed at the disadvantage?6.5 What steps could have been taken to avoid the disadvantage? The claimants suggest:6.5.1 Giving them the opportunity to engage in writing.6.5.2 Giving them longer or more flexible deadlines; and,6.5.3 Permitting their full participation.6.6 Was it reasonable for the respondent to have to take those steps, and when?6.7 Did the respondent fail to take those steps? 7. Protected disclosure 7.1 Did the Mr. Abbott make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:7.1.1 What did Mr. Abbott say or write? When? To whom? Mr. Abbott says he made disclosures on these occasions: a) on many occasions between March 2020 1 March 2022 in email and verbally to Mrs Smith that i. staff were being paid for more hours than they had worked Case No: 2302187/2023 &2302188/2023 ii. staff are being paid at overtime rates when they had worked hours which did not attract that rate iii. in particular agency worker costs were out of control iv. staff are working excessive hours in breach of the working time regulations b) On or around March 2022 by email to the whistleblowing department, and that Simon Thompson group CEO v. a criminal offence had been committed in that mail had been destroyed.7.1.2 Did he disclose information?7.1.3 Did he believe the disclosure of information was made in the public interest?7.1.4 Was that belief reasonable?7.1.5 Did he believe it tended to show that:7.1.5.1 a criminal offence had been, was being or was likely to be committed;7.1.5.2 a person had failed, was failing or was likely to fail to comply with any legal obligation;7.1.5.3 information tending to show any of these things had been, was being or was likely to be deliberately concealed.7.1.6 Was that belief reasonable? 8 Detriment (Employment Rights Act 1996 section 48)8.1 Did the respondent do the following things: i. Cause the Mr. Abbott to be investigated for conduct; ii. fail to conduct his conduct case impartially iii. inform Mrs Smith of confidential information regarding his whistleblowing allegations iv. failed to properly consider the three grievances that he submitted v. Speak up failing to address his whistleblowing complaints8.2 By doing so, did it subject the Mr. Abbott to detriment?8.3 If so, was it done on the ground that he had made a protected disclosure? 9 Remedy for Protected Disclosure Detriment9.1 What financial losses has the detrimental treatment caused the claimant? Case No: 2302187/2023 &2302188/20239.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?9.3 If not, for what period of loss should the claimant be compensated?9.4 What injury to feelings has the detrimental treatment caused the claimant and how much compensation should be awarded for that?9.5 Has the detrimental treatment caused the claimant personal injury and how much compensation should be awarded for that?9.6 Is it just and equitable to award the claimant other compensation?9.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply9.8 Did the respondent or the claimant unreasonably fail to comply with it?9.9 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?9.10 Did the claimant cause or contribute to the detrimental treatment by their own actions and if so would it be just and equitable to reduce the claimant’s compensation? By what proportion?9.11 Was the protected disclosure made in good faith?9.12 If not, is it just and equitable to reduce the claimant’s compensation? By what proportion Evidence[31]I was provided with three different bundles. What was described as the main hearing bundle was 3251 pages. There was a claimants’ bundle of 268 pages and a supplementary bundle related to the whistleblowing of 841 pages. I heard evidence from both of the claimants and from Andrew Paterson, who attended the first meeting with Mr. Everett, and Sarah White, a former employee of the respondent.[32]There were eight witnesses for the respondent, Anna Walsh, the appeal manager, Colin Threlkeld, production supply manager, Elly Scott, People Case Support Manager, Waqar Hassan, Lead Customer Operations Manager, Sue Knight Smith, Independent Case Manager, Samantha Whayman, Lead Customer Operations Manager, Nicola Smith, Performance Manager and David Butcher, Lead Fraud Investigation Manager.[33]At various stages throughout the hearing Mr Abbott commented that the claimants had insufficient time to prepare their witness statements. Instead of having a month, which is the time the directions allowed, because of the respondent’s late disclosure they only had a week. This was particularly said in the context of any criticisms levelled at the claimants by the respondent that matters were not set out in their witness statement. Mr Abbott partly responded to this on the basis that he did not understand that everything had to be in his witness statement when it was within the very extensive file of documents. Case No: 2302187/2023 &2302188/2023[34]I considered whether a fair trial was possible and whether the claimants were being prejudiced by the foreshortening of their time to prepare a witness statement. Mr Abbott was able to navigate his way through the evidence with great skill and demonstrated a forensic grasp of the detail of the case. I also permitted both claimants to put points to the respondent’s witnesses that were not in their witness statements if they were relevant to the issues and they were covered by documents that had been disclosed.[35]I concluded that, despite a possible shortening of the preparation time, both individuals had been able to present their case fully and in great detail. I concluded that the hearing was a fair one and the delay in disclosure did not impact the claimant’s ability to have their case heard fairly.[36]Given the large number of witnesses and the very large volume of documentation, together with the loss of the first morning of the hearing dealing with paperwork and the amendment application, it rapidly became clear that, even with strict timetabling, the hearing would not be concluded in five days. I agreed with the parties that a further three days could be added to the length of the hearing. Given the significant technical difficulties that arose during the hearing, together with adjustments required for the claimants and one of the respondent’s witnesses, a considerable amount of time was lost during the hearing so further time of another 2 days was therefore added.[37]The findings of fact set out below were reached by the tribunal on a balance of probabilities, having considered all the evidence given by witnesses during the hearing, including the documents referred to by them, and taking into account the tribunal’s assessment of the witness evidence. It also takes account of the parties detailed written submissions.[38]Only findings of fact relevant to the issues, and those necessary for the tribunal to determine, have been referred to in this judgment. It would not be necessary, and neither would it be proportionate, to determine each and every fact in dispute. If the tribunal has not referred to every document it has read and/or was taken to in the findings below, that does not mean it was not considered if it was referred to in the witness statements/evidence. Findings of fact Contractual/Policy Documentation[39]It was common ground that Mr. Abbott was employed under the terms of a standard contract for post-persons OPG grade which he signed on 13 July 2004. The statement of terms and conditions made reference to a Code of Business Standards and staff were told in their statement of terms they could obtain a copy by contacting their manager. The code was said to be noncontractual and could be amended or replaced from time to time.[40]Mr. Everett signed his employment documentation on 21 May 2013. Again, this documentation specified that he would be expected to comply with the standards of behaviour set out in the Code Of Business Standards a copy of which could be accessed by contacting a line manager or HR services. Case No: 2302187/2023 &2302188/2023[41]Both claimants were taken to parts of the Code of Business Standards. The Code contains a statement that they must not claim money from the company for hours they had not worked. Both Mr. Abbott and Mr. Everett said that they had not seen this document when they were first employed and had not been sent copies in the post. They had no reason to go onto any app and to download it. Mr. Everett said that he had no knowledge of it. Mr. Abbott accepted that he was generally aware of the policy, and at times would have been aware of some parts of this code when he assisted others as a trade union rep. Mrs Whayman, who has worked for the respondent since 2000 and was based in Dartford and was the claimants, manager since 2015, was also unaware of this document[42]I accept that Mr. Everett was therefore unaware of the Code Of Business Standards. I also accept that Mr. Abbott would not have had it front of mind. There was no evidence from the respondent as to any steps that were taken to draw this to staff attention in the form of training sessions or reminders. I find that the Code was a document that has no day-to-day meaning for staff. It was not even recognised by a long standing manager.[43]While both claimants maintained that they had worked all the hours which they claimed, they also gave evidence that this was not how the respondent operated in practice. Contrary to the Code Of Business Practice identifying that one could only be paid for hours worked, Mr. Abbott told me that most staff in his depot were regularly paid for hours they had not done and in fact it was only himself and Mr. Everett who worked all the hours for which they were paid. It was therefore his evidence that both claimants actually complied with this requirement but other staff did not. Mr. Everett gave similar evidence that this was not how the respondent worked. It was done on a job and knock/ price work basis.[44]Mrs White who previously worked for the respondent as an OPG until 2024 gave evidence that throughout her employment of some 23 years the Dartford delivery office always operated a job and knock/price work overtime policy. That meant that over time was agreed in advance and paid regardless when the individual finished. On very rare occasions when an individual worked past the hours allocated the overtime would be increased and rounded up. For example if only one hour and 10 minutes time was worked the overtime would be to be rounded up to 2 hours.[45]I was also directed to a number of statements that the respondents staff had made during interviews. This included a statement by Mr. Kerr made during the appeal hearing that while price work was not allowed by the respondent organisation, it was allowed in Dartford. Mr. Lampton also confirmed that Dartford ran on price work rather than exact hours. He confirmed the different offices trialled different ways of working and some would pay fixed hours while some would pay only what was worked. Mrs Whayman also confirmed that she gave hours for a walk and therefore did not necessarily pay for hours worked but for the walk as a whole. The claimants also pointed to a number of examples where she had signed off more hours than were worked[46]When Mrs Smith was asked about how matters operated in her depot she agreed that in previous management roles she had operated a knock/price work overtime policy. She accepted that it was still common in the Dartford depot for this to happen even under her management. She had not expressly authorised this, but Case No: 2302187/2023 &2302188/2023 accepted that she gave managers autonomy on how they ran their units and that this method of paying for work was still in place.[47]I accept the claimants’ evidence, supported as it is by some of the respondent’s own witnesses and accepted by Mrs Smith, that this was what happened. I accept therefore that many staff in the Dartford depot were paid for hours which they did not work. I conclude that not only was the Code Of Business Conduct not regularly enforced by the respondent, but it did not reflect the ethos or local working practices within the depot where the two claimants worked. I accept that some staff were paid for hours they did not work as part of a management practice in Dartford.[48]Nonetheless, I find that the claimants did consider that it was inappropriate to claim money for hours not worked. It was Mr Abbott’s evidence that he sent many emails and had a number of conversations with Mrs Smith about members of staff receiving money for work not done. It was also always his position that he and his colleague had a specific arrangement with their manager and worked all the hours for which they were paid. I find that it was the claimant’s clear understanding that, notwithstanding local practice that paid on the basis of work done rather than time spent, it was inappropriate for this to be authorised and for this to occur. If that were not his position then his complaints to Mrs Smith could not amount to reporting wrongdoing in any sense and that is very firmly not the claimant’s position. The claimants’ roles and hours[49]Both of the claimants worked in the delivery book room at the Dartford district office. They held administrative roles. Their duties included dealing with staff matters relating to pay and hours of attendance. That is inputting and processing annual leave, over time, and sickness absence and responding to general enquiries. Their contractual hours were Monday to Friday, starting at about seven in the morning and finishing around 2.30 to 3 PM. They were each entitled to some scheduled attendance (SA) over time.[50]Until March 2021 the two claimants were managed by Mr. Trueman. The individuals who worked in the book room and the arrangements varied over time as structural changes to the organisation evolved. When Mr. Trueman left the business and Mrs Smith took over his role it was the evidence of both the claimants that there were three full-time roles in the book room, each with 8 hours SA. Mrs Smith disputed this. She believed the third role was a part-time one. She did not, however, have any particular reason for believing this. She did not check any of the information she had access to as a member of management to confirm this. On the balance of probabilities, I prefer the evidence of those who worked in the book room and accept that the third duty was full-time.[51]There is a dispute between the parties as to the amount of contractual SA the claimants are entitled to. It was not disputed that the claimants had a contractual entitlement to overtime i.e SA, and it is the claimant’s case that this was 8 hours and had their contractual over time been varied and reduced there would have been a process to do that and they would have been made aware. This did not happen and they do not accept that it was ever reduced from 8 hours. The need for this process was confirmed by Mr Hassan. Both claimants also relied on the fact that the respondent had settled their claim for unpaid wages. They had sought payment of Case No: 2302187/2023 &2302188/2023 eight hours SA during their suspension and the respondent had paid this claim for the 8 hours SA.[52]Nonetheless Mr. Threlkeld, who was the third investigating manager, said that each duty was assigned 5 hours SA on a Saturday. In June 2023 Ms Walsh asked for information from Mr. Adefila on the scheduled duties for Dartford and for the book room from what is known as the DDS. The reply sent on 28 June 2023 states that the SA was 7.24 hours and not 8 hours. The respondent does therefore accept that the SA was not five hours.[53]Mrs Walsh confirmed that during the appeal she was not influenced by whether it was 7.24 hours or 8 hours. This dispute did not therefore influence the outcome of the process. On the balance of probabilities I accept that it was treated within the Dartford office as being 8 hours.[54]Both claimants stated they had an agreement with Mr. Trueman to work flexibly. That meant that they were paid for the hours they worked but that they could work longer hours on some days and shorter on others. Mr. Abbott accepted that he did not have anything in writing at the time to evidence this, but referred to the information given by Mr. Trueman during the investigation which confirmed this. Mr. Everett confirmed that he had not had a direct conversation with Mr. Trueman about any of this. He said that Mr. Abbott had told him that had a conversation Mr. Trueman and that this was how they were able to work. He saw no reason to ever check this with Mr. Trueman himself and had no reason to disbelieve what Mr. Abbott told him.[55]Mr. Trueman provided a letter of support and was also interviewed during the investigation/disciplinary process. His evidence supports the claimant’s position that Mr. Abbott and Mr. Everett were not only carrying out their own duties, but were splitting the third permanent position between them. This means that they were each doing half of the vacant roles hours and overtime in addition to their own contractual hours and contractual overtime. As a result they were working unsociable hours on a permanent basis and therefore they were offered the opportunity to perform some work at home where possible and to work every other Saturday/Sunday at home to relieve some of their pressure. They were permitted to work flexibly and Mr. Trueman was happy that they booked the hours of their overtime as they wished on a daily basis provided that all the work was completed.[56]Mr. Trueman also confirmed the claimant’s evidence that he had agreed that they needed to work bank holidays and that they could book as leave another day off in the week. He confirmed that their overtime was always authorised. There was some difference between the claimant’s evidence and the written account given by Mr. Trueman. Mr. Abbott and Mr. Everett said that they worked every hour for which they were paid. At one point in his interview Mr. Trueman maintained that the two claimants were working 69 hours every week each. He commented that he knew the workload and they were doing the hours. At a further point in his interview Mr. Trueman was asked if the claimants worked each of the 69 hours every week and he said that some less some more and that there were swings and roundabouts in terms of the hours but he felt he got value for money.[57]Mr. Abbott also gave evidence that he and Mr. Trueman met with Mrs Smith as part Case No: 2302187/2023 &2302188/2023 of Mr. Trueman’s week-long handover with his successor when the working arrangements in the book room were described. Mrs Smith confirmed that she was happy for the status quo to continue. Mr. Trueman’s letter of support sets out the arrangements that he had agreed, that is that the two could split the three duties between them, they could do some work at home, they could work every other Saturday/Sunday at home and they could book the hours of duty as they wished on a daily basis. All over time was signed off by himself. He specifies that all this was agreed with Mrs Smith in his handover with her before he left the business.[58]In his interview notes Mr. Trueman expands on this with the addition of handwritten comments to confirm that he had a handover and while he could not recall the exact words, they did discuss the claimant’s duties and their splitting the third duty between them and he confirmed that Mrs Smith said that nothing would change for a long time. He confirmed to her that they worked Bank Holidays.[59]Mrs Smith was asked about her recollection of the handover meeting with Mr. Trueman. She could not recollect a handover meeting as Mr. Abbott described it. She did recollect however, the following week when she was in the book room that she was given a general explanation that there was an agreement between the two claimants are Mr. Trueman as to how they would work. She characterised it as non- specific about hours. She accepts that having had it described to her she agreed that it could continue as she was not focusing on changes to this sort of thing initially. Her focus was on improving quality and other matters and costs issues were secondary at that point. Mr Abbott’s memory is clear. Mrs Smith’s memory is unclear. I find that it is more likely that matters occurred as Mr Abbott describes.[60]While I find that Mrs Smith was informed of the arrangement, I accept that she failed to understand exactly what the arrangements were. This was not her focus. I also find, however, that she did confirm to Mr. Abbott, who then properly conveyed it to Mr. Everett, that the existing arrangement was to continue. It was reasonable for both claimants to believe that they were still able to act in the same way as they had under Mr. Trueman. From their point of view that meant working bank holidays, working from home, splitting the vacant full-time third duty between them and working weekends on a rotating basis. Whatever Mrs Smith did or did not understand she had agreed to, it was reasonable for both individuals to believe that she had agreed to replicate the arrangement exactly as they had it with Mr Trueman. From their perspective they were reasonably continuing to act in accordance with management agreement.[61]It appears that Mrs Walsh, when she conducted the appeal, also reached this conclusion. By the time of the appeal the difference between the claimants and the respondent is not whether they had this arrangement in place, but whether they had worked the hours for which they claimed and, if not, whether they were entitled to claim for work they had not done. The security interviews (23rd of February Mr. Everett and 25th of February for Mr. Abbott.)[62]Both claimants were interviewed by a member of the security investigation team after concerns about their hours were raised in early January. I address the way in which these concerns were raised and who was involved at a later point as they are relevant to Mr. Abbott’s whistleblowing claim. It is, however, common ground that an Case No: 2302187/2023 &2302188/2023 issue was raised and this led to a security interview.[63]Before either of the claimants were invited to the meeting Mr Butcher carried out some investigation. The claimants were concerned about particular searches that had been done by the respondents. Mr Butcher confirmed that he did not authorise these himself. Any searches were done by the security helpdesk. He accepted, because that is shown on the documentation, that the reason for the search being requested is that the individuals were believed to be involved in criminal activity while in positions of trust. When he finished his investigation there was no question of criminal investigations. It was decided that this would be an internal matter only. While this point has much exercised the claimants I accept that was the respondent’s position and that any idea of a criminal investigation was very quickly not pursued. I also accept this was not clear to the claimants until it was clarified by the appeal chair. It is not, however, material to any of the issues in this claim.[64]Mr Butcher confirmed that he was in contact with Nicola Smith, although correspondence was also copied to Mr Skitch. He confirmed that he made several enquiries with Mrs Smith and that there were a lot of phone calls and probably one joint teams meeting with Mr Skitch and Mrs Smith but the only documentary evidence that was produced as a result of these enquiries was the email of 9 February 2022. While he used this to inform his discussions with Mr Abbott and Mr Everett this document and the information in it was not shared with the claimants or indeed with the next investigator and the disciplinary hearing chair.[65]Mr Butcher accepted Mrs Smith’s information that the claimants were not authorised to work overtime for which they had claimed. Not only was it not authorised but also the days and times at which they were working for example work from home the weekend, were not authorised. He confirmed that he did not independently check any documentation but accepted the word of the claimant’s manager. Mrs Smith which was of course incorrect as was later confirmed by the respondent because all the overtime worked by the claimants was authorised. As I previously found it also reflected the agreement that she had confirmed with them. Mr. Everett’s interview[66]Mr. Everett was invited to attend a security interview on 23 February 2022. Mr. Paterson, who gave evidence on his behalf, attended as his friend. He signed a document indicating that his role was to witness what happens during the interview. He was asked if he had signed this at the beginning or end of the meeting. In his evidence he was adamant that he had signed it at the end. It is however dated and timed and the time of 10.35 suggests that it was signed by him at the start of the meeting and I find this is what happened.[67]There are no typed notes of the interview. There are handwritten notes only. Both Mr. Paterson and Mr. Everett said that at the end of the meeting Mr. Everett was handed the handwritten notes. He looked them for about 10 seconds. He said that he could not read them and gave them back and said that he would wait to comment on the notes until he had seen the typed version. Mr. Paterson similarly said that he did not read them as a be no point as Mr. Everett had not. In any event he felt they were illegible. Mr. Paterson did not make his own notes of the meeting. Case No: 2302187/2023 &2302188/2023[68]Mr. Everett explained that he was never given a copy of even the handwritten notes until he requested them and obtained them via a subject access request. This was sometime in August 2022. Even when he received them at that point he did not read the notes. He did not ask anybody else to read them to him. He was therefore unaware of their content.[69]He explained that he received the security report prepared by Mr. Butcher which is dated 25 February 2022. He disagreed with a number of the factual statements set out in this loss enquiry report. It was his evidence that based on this report and its inaccuracies his trade union representative put together what is headed witness statement of interview on 23 February 2022 by Mr. Paterson and signed by him on 18 March. That contains a series of statements which Mr. Paterson has to tick to indicate if they are true or false.[70]Mr. Paterson confirmed that this witness statement was true. Mr. Everett also gave evidence that its contents were true and in effect identifies the inaccuracies in the security report account of what was said at the meeting. These include that Mr. Everett made it clear that his annual leave was recorded on Manpower and that PSP was not updated. The leave card printed out would not therefore reflect his actual leave. Mr. Everett did not say he signed off his own overtime. Mr. Everett did not agree that the book room SA was only five hours and that when Mr. Butcher made this comment he explained that this had not been agreed with the trade union. Mr Everett confirmed that he did tell Mr. Butcher that when Mrs Smith took over from Mr. Trueman a handover meeting had taken place and she was happy with the status quo to remain the same. Mr. Paterson confirmed that Mr. Butcher had told Mr. Everett regarding overtime it was okay for people to be paid ghost over time as people work at different speeds.[71]Mr. Everett also gave a detailed commentary on what he said occurred during this interview in his response during the process. He maintained throughout that the security investigation report prepared by Mr. Butcher was not accurate and did not reflect what he had said at the interview. Mr. Abbott’s interview[72]Mr. Abbott was interviewed on the 25 February 2022. Prior to the meeting he signed notes to indicate that he understood that he could have a friend present at the interview. He did not in fact have anybody with him. In the same way as with Mr. Everett, the notes are handwritten only and no typed copy was ever provided.[73]Mr. Abbott made the point that he was never told the meeting was voluntary he believed that he had to stay there. He was not an opportunity to read or check the notes and had never been able to challenge them. During the meeting his blood pressure was extremely high. He subsequently discussed this with his GP and was advised that he should have left the meeting immediately. He felt intimidated and scared and had no idea what was going on during this meeting.[74]Following this meeting Mr. Butcher then produced a security loss enquiry report dated 25 February. Mr. Abbott also challenges the accuracy of what is recorded. In short, he points the same inaccuracies as Mr. Everett in the overall security loss enquiry report. Case No: 2302187/2023 &2302188/2023[75]Mr Abbott clearly has an encyclopaedic knowledge of the respondent’s hours systems and practices. He’s been able to pinpoint practice and evidence the differences between management statements and what happened on the ground throughout the long conduct investigation and this hearing. On the balance of probabilities I find it unlikely he would have made statements at the security interview which he identified as incorrect from the moment he received the security report. While Mr Everett did not have as ready recall of the local arrangements again, as he was operating the same way as Mr Abbott, I also find it unlikely that he would have agreed to things that he has always disputed.[76]It seems to me more likely that Mr Butcher was operating on the basis of the respondent’s processes and was not aware of the agreed local practices in Deptford. He also had Mrs Smith’s evidence which did not reflect these local practices. I find that he made his notes in this context so that he had a different understanding coming into the meeting. I find therefore the notes are an inaccurate record of what each claimant said and I accept the claimant’s evidence of the points they made at the meeting.[77]Despite their explanation the matter was passed by Mr Butcher to the next stage. This was done without the critical evidence, being 9 February email from Mrs Smith, being shared with them. It was done without their being able to respond to the many inaccuracies that I have found were in his notes. It was done without any other investigation. Mr Butcher had also only considered one year of overtime issues whereas his report refers to 4 years. He had no evidence to support this allegation that the conduct had been over a four-year period. Nonetheless, the pair were next invited to a fact finding meeting. The Chronology of the Conduct Matter[78]While separate letters were sent to each individual the process followed was the same and the dates are similar if not identical. During this fact-finding process three investigators were involved. Neither of the first two made much progress and the matter did not really move forward until Mr Threlkeld was appointed in August 2022. Fact finding in relation to Mr. Everett[79]The formal investigation process started on 10 March 2022 with an invitation to attend a formal fact-finding interview. Between then and the appointment of Mr Threlkeld in August 2022 there was a regular exchange of emails between the respondent and the claimant. The respondent was essentially inviting Mr Everett to attend the fact-finding meeting. He was responding explaining that he was unwell and could not attend because of medical issues. He continually asked for the notes of the meeting and that key managers who were able to give evidence of the previously agreed working practices were interviewed. He made it clear that he was happy to engage in written communication and would speak to occupational health.[80]An occupational health referral was made and the report was produced on 15 June 2022 which stated that Mr. Everett was unfit for work in any capacity and that anything that can be done to progress the case was likely to prove beneficial to all concerned. The report indicated that Mr. Everett was not sufficiently fit to physically attend an interview with management, but that he was willing to formally reply in Case No: 2302187/2023 &2302188/2023 writing and would require a few more days than usual to do this due to his current reported cognitive issues. He would also require sight of any evidence against him and the opportunity to access his own work email account to facilitate his responses.[81]At some point in August 2022 Mr. Threlkeld took over as fact-finding manager. He saw the occupational health report and decided to write to Mr. Everett on 25 August to confirm whether this was still the case and whether he was now fit to participate in fact-finding in person.[82]Mr. Everett replied on 4 September confirming he could engage in written fact- finding but could not be interviewed due to his mental health. He wanted to fully understand the accusations and have a breakdown of the overtime claims that were said to be inappropriate. He stated that he had requested large amounts of information from two previous factfinders, but had not received it and asked that he, Mr. Threlkeld, dealt with it.[83]On 22 September Mr. Threlkeld asked Mr. Everett if he would be able to attend a meeting on 27 September. Mr. Everett responded on the same day stating that he was totally committed to providing any information in writing that Mr. Threlkeld might require and willing to expand on any point which he felt he had not clarified clearly, but until he had received all the pertinent information to which he was entitled and had requested on numerous occasions since the 23 February, he might not be able to provide concise background information. He also made it clear that he was not prepared to meet in person as that was contrary to the medical advice he had received.[84]Mr. Threlkeld gave evidence that he had submitted a further referral to occupational health for Mr. Everett. He believed it did not take place as Mr. Everett refused to do this. Mr. Everett disputes this, he says that it was unable to go ahead without knowledge of the reason for it. I was taken to the documentation on this point at some length.[85]On 25 October 2022 an email was sent from a central email address to Mr. Threlkeld headed “important OH support material”. That indicated that an occupational health referral had been submitted for Mr. Everett. On 26 October Mr. Threlkeld received an email to let him know the occupational health appointment was unsuccessful. It said that the email was sent to advise the scheduled occupational health appointment did not take place as expected due to “unable to assess employee”. Mr. Threlkeld understood that this was because Mr. Everett had refused to attend.[86]On 2 November Mr. Threlkeld wrote to Mr. Everett saying he now wished to progress the case and would like to provide the option to attend a face-to-face meeting or as advised in the last Occupational health referral to progress in writing. The letter explained that questions would be posed to Mr. Everett and he would be able to add any further information that he might feel was relevant. The letter indicated that Mr. Threlkeld was aware Mr. Everett might need access to information such as emails and if that was something he did need and provide validity to the need, he was happy for him to have accompanied access at a Royal mail site. Mr. Everett was given two working days to confirm whether he would Case No: 2302187/2023 &2302188/2023 progress in writing.[87]Mr. Everett replied on 6 November. He repeated again that he was totally committed to providing any information in writing that Mr. Threlkeld might require and was willing to expand on any point which he felt he had not clarified clearly, but until he had received all the pertinent information to which he was entitled and had requested on numerous occasions since 23 February, he might not be able to provide concise background information. He made the point that he had made significant numbers of request for information and evidence for the last eight months and had yet to receive a single meaningful response from anyone. He still did not understand the allegations against him and he asked Mr. Threlkeld again to provide them in detail as there must be more information available for investigation of this length of time.[88]Mr. Threlkeld believes that he submitted another referral to occupational health but on 11 November advice central OH contacted Mr. Threlkheld to tell him that the referral did not progress and the referral was subsequently closed. The email explained that Mr. Everett had informed them that he was not giving his consent to going through the consultation as he did not know what it was about. He explained he tried to contact his manager to discuss this but was not able to reach them and had only a text regarding this appointment. Mr. Threlkeld was asked to send Mr. Everett a copy of the referral form to help understand the reason for the referral. It was explained that it would also be beneficial to call Mr. Everett to gain his consent before booking an occupational health consultation.[89]I accept Mr. Everett’s evidence on this point which is consistent with the written documentation. He did in effect refuse the occupational health referral but because he had not consented and needed more information. Mr Threlkeld had not taken the proper steps. I find therefore that referrals were made but that Mr Everett’s refusal of these appointments was done on legitimate grounds and that Mr Threlkeld was aware of these legitimate reasons for refusal at the time.[90]Mr. Threlkeld sent a further letter about a fact-finding meeting on 1 December 2022. Again he offered to post questions and for these to be completed by email. He specified that he was aware Mr. Everett might need to access information such as emails and he gave details about how that could be arranged with Mr. McHardy. Again Mr. Everett was given two working days to contact Mr. Threlkeld to confirm if he would deal with this in writing.[91]Mr. Everett responded on 8 December. He confirmed again he remained ready to engage as he had been since 14 June, but he wanted to receive all the information which he was entitled by the respondent policy which he had requested on numerous occasions since early March 2022. He had received nothing since the original security investigation report in March 2022. He also confirmed that he felt it might be appropriate to engage occupational health again as both the situation and his mental health had undergone significant change since June.[92]On the 13 December 2022 Mr. Threlkeld concluded that they were going round in circles because every time he asked for a meeting to discuss the situation more information was asked for. Instead matters needed to progress. He therefore informed Mr. Everett that following his decision not to attend two fact-finding Case No: 2302187/2023 &2302188/2023 meetings on 9 November and12 December concerning allegations of inappropriately claiming overtime, inappropriately claiming scheduled attendance and inappropriately claiming benefit bank holiday credits he was satisfied there were grounds to pass the case to a higher authority formal investigations. Mr. Everett was told the nominated manager would be in touch shortly to progress the situation.[93]Mr. Everett received this letter on 21 December. He responded on the same day. He pointed out that he’d been sent three letters with a commitment to conduct fact- finding in writing in line with his medical needs. Mr. Everett further pointed out that he had emailed Mr. Threlkeld on 5 September, 21 September and 22 September, 6 November and 8 December. These email set out the information that he required. He had given authorisation to access his work account email and the documents be sent him for review and this had not happened. Fact-finding in relation to Mr. Abbott[94]Again, prior to the appointment of Mr Threlkeld Mr Abbott was invited by the previous two investigating managers to attend face-to-face meetings. He also indicated was unable to do so on the basis of medical advice and also asked for copies of the investigation notes and that managers be interviewed.[95]Mr Abbott had more response than Mr Everett to his requests for documentation. From May 2022 Mr. Bayliss took over as fact-finding manager. He appears in the papers to have tried to progress Mr. Abbott’s request for email access and made arrangements for Mrs Knight Smith to access the email account so that she could forward any emails that were relevant to the investigation to the investigating manager but he required Mr. Abbott to signpost the emails that he thought were relevant. He also encouraged Mr. Abbott to liaise with the information rights team regarding a subject access request.[96]Mr Abbott was also referred to occupational health and there is a report dated 15 June 2022 which identified that he was unfit for work. His mental health risk scores were severe. He had advised occupational health who accepted the position that he could only partake in the conduct meeting via a letter or email. He was identified as likely to be covered by the Equality Act.[97]Mr. Threlkeld wrote to Mr. Abbott to introduce himself on 25 August and asked him to confirm whether or not the occupational health report was correct it was the case was only able to participate in writing and questioning whether he would be fit to attend in person. Mr. Abbott responded on 4 September stating he was happy to engage in a fact-finding process in writing. He attached a number of emails which were described as forming a small part of those he requested to be sent for information. He asked Mr. Threlkeld to forward to him everything has been gathered since June 2022 and asked for a breakdown of the specific overtime payments together with details of the computer programs he was being accused of using without authorisation.[98]Mr. Threlkeld met with the trade union representative on 7 September who made it clear that the claimants believed matters could not be resolved without access to their emails. On 22 September Mr. Threlkeld emailed Mr. Abbott and said he was Case No: 2302187/2023 &2302188/2023 planning to meet him on 27 September and was he available. Mr Abbott replied the same day that they could meet at his home address. Mr. Threlkeld felt it was not ideal to meet at home and suggested a local office. Mr. Abbott said in response that his disability meant he could not attend any form of meeting on the respondent’s property. He asked for confirmation that there would be no fact-finding until all the information he had requested had been received.[99]Mr. Threlkeld considered that as the last occupational health assessment had taken place in June there should be a further assessment to establish whether Mr. Abbott was fit to attend a face-to-face meeting ,as at this point he was no longer off sick. The referral was made on 24 October 2022 with the assessment arranged for the following day. The assessment did not progress and Mr. Threlkeld believed it was because Mr. Abbott did not answer the call.[100]On 2 November 2022 Mr. Abbott was invited to attend a face-to-face meeting or progress the meeting in writing. He was required to reply within two working days. Mr. Abbott sent a lengthy email on 6 November which explained that he had lost connection with the occupational health practitioner and was expecting the assessment be rearranged. He also confirmed that was able to engage in writing as soon as he received all the information to which he was both legally and procedurally entitled.[101]A further occupational health referral was arranged for the 8 November but it was closed as unsuccessful. Mr. Threlkeld believes this is because Mr Abbott refused consent . This is disputed. Mr Abbott said that there was no new referral because the referral ID number for what is said to be the new referral is the same as the October 1 referral. Further, there was no evidence that his consent had been obtained for this.[102]Again, I prefer the claimant’s evidence to that the respondent on this point. I find it likely on the balance of probabilities that there was a similar lack of consent for further occupational health reports with Mr Abbott as there was with Mr Everett. I accept that any lack of further occupational health report was based on the claimant’s legitimate exercise of their rights in this area and the respondent’s failure to properly address this.[103]On 1 December 2022 Mr Threlkeld wrote to Mr. Abbott inviting him to a second and final face-to-face meeting or alternatively proceeding with the investigation in writing. He was asked to reply within two working days. On 8 December Mr. Abbott sent an email requesting access for the information that he been asking for. These requests had been referred to Mrs Knight Smith.[104]Mr Threlkeld reached a similar view about Mr Abbott as he had about Mr. Everett. He had invited them to two fact-finding meetings and they had declined both. While Mr Threlkeld accepted that the occupational health advice was he was not able to participate in an investigation other than in writing, he felt that all that happened every time the respondent tried to communicate was to receive a barrage of data requests[105]Mr. Threlkeld formed the view that in light of the evidence gathered there was a case to answer . The potential penalty could be outside his level of authority, Case No: 2302187/2023 &2302188/2023 therefore the case was passed up to Mr. Hassan to progress the matter to a formal conduct hearing. Mr Threlkeld’s decision[106]I find that Mr Threlkeld referred the matter further for a formal conduct hearing without having given the claimants a proper opportunity to be involved. It became clear from Mr Threlkeld’s answers that he had a large amount of paperwork – he estimated about 600 pages – that was relevant to the fact finding. He believed that a previous manger would have sent this to the claimants. As he thought the previous manager had sent the documentation I found that he accepted that it was relevant information to which they were entitled. He had no firsthand knowledge that the 600 pages had been sent , this was an assumption and I accept the claimants evidence this was not sent. A responsible manager should have checked this.[107]He saw the claimants’ request for documentation in this context and believed they were asking for unnecessary paperwork. He was taken to one letter from Mr Abbott which made it clear that he was asking for any document he was entitled to and if he was not entitled to it, confirmation of that. Despite this reasonable request, Mr Threlkeld continued to say that the claimants requests were unreasonable. I find that Mr Threlkeld ignored requests for documentation and did not provide documentation that he had and which he himself accepted should have been shared with the claimants.[108]It was also clear from his evidence that Mr Threlkeld believed the claimants were obstructing the process with a refusal to attend OH appointments. I have found that while he did make some attempt to refer both claimants to occupational health he did not do so using the respondent’s appropriate procedure and that he was, at least in the case of Mr Everett, made aware of this and in the case of Mr Abbott was made aware that he would consent and expected another referral to be made. He did, however, have the occupational health reports from the summer which supported the claimant’s view that they could only interface with written questions.[109]While in his written witness statement Mr Threlkeld suggested that he was happy to provide these written questions, in the appeal hearing Mr Threlkeld explained that he was frustrated by the claimants refusal to come to face-to-face meetings and was not happy to provide written questions. He did not think it was legitimate for the claimants to avoid a face-to-face meeting. That was despite this being the medical advice that the respondent had received from the claimants’ fit notes, supported by the one occupational health report which was provided for each.[110]In his evidence, Mr Threlkeld also made it clear that he believed the claimants had claimed for work they had not done and that they were in effect guilty of the misconduct which was alleged. He presumably formed this view from 600 pages but we have no indication of whether this included any revised information from Mrs Smith or any of the people that he had been urged to interview. It was also based on the investigation report from Mr Butcher which contained many errors.[111]At this point I find that Mr Threlkeld could not have formed a reasonable belief Case No: 2302187/2023 &2302188/2023 that either of the claimants had committed the misconduct of which they were accused. He had not carried out a reasonable investigation. While from his perspective the claimants were make it difficult for him to do so, he could easily have sent the documentation that he had and he could have provided written questions. He did neither of these things.[112]Mr Threlkeld was at pains to explain that he was advised throughout by the respondent’s HR service that he had done enough and the matter should move on. None of this advice was in writing. The claimants’ perspective is that his recommending the cases go to disciplinary stage without their full involvement was not only unfair, but was also unfavourable treatment arising from their disability. I find that Mr Threlkeld was aware of the medical advice to conduct the hearing in a particular way and chose to ignore this. The failure to involve them at this stage arises from their absence and their medical conditions. The disciplinary process[113]Again the process for both individuals largely mirrored each other. On 2 February Mr. Hassan wrote to each and charged them with three acts of gross misconduct. Both were asked to provide written responses to questions in writing by 18 February 2023, failing which Mr. Hassan said he would progress based on the available information that he had. Mr. Hassan sent both individuals the information he had already obtained during the investigations to date. These were said to be Doug Emmett – Emails and Letters (1st Investigator)/Chris Bayliss – Email (2nd Investigator)/Colin Threlkeld - Email and Letters (3rd Investigator)/ Waqar Hassan – Email and Letters (4th Investigator)/ Lauren Carnall – Emails (HR Business Partner) /Steve Wisely – Emails (CWU Divisional Rep) /Andy Paterson – Statement (CWU Local Rep) /Douglas Raine – Email of Unanswered Questions (Head of Security Field Operations) /Paul Skitch – Email Chain /. IB Report /Annual Leave Card 2021/22/ PSP Print Outs From 29-3-21 to 14-2-22 (Unhighlighted) /Occupational Health Report from June 2022[114]Mr Hassan did not recognise the reference to 600 pages of documentation. He believed he was given about 150 pages and this was provided to the claimants. Presumably that is the documents referred to above. Both individuals were offered a site visit if they believed there was information that dealt with their case.[115]At their request the deadline for both was extended to 27 February 2023 and both sent lengthy letters answering the questions by that date. Mr. Abbott’s response was 215 pages. Mr. Everett’s response was 256 pages.[116]These can be summarised as identifying that both claimants relied on what they said was Mr. Trueman’s authority for the hours and the overtime that they worked. All overtime was authorised and they were able to demonstrate this if 552’s were examined. They did not enter their own overtime hours or holiday. They worked on bank holidays and arrangements for holiday pay been authorised with Mr. Trueman. They could evidence this if they were provided with the appropriate documentation they had asked for and managers were interviewed. A long list of the relevant documents that were required was included with Mr. Abbott’s response . Mr. Everett similarly included a long list of the missing documentation in his response. Many of Case No: 2302187/2023 &2302188/2023 these emails have not been produced and do not form part of the bundle.[117]Mr. Everett made an additional point that he was not provided with sufficient time to formulate the full response. In his oral evidence he expanded on this point and explained that he wanted occupational health to determine how much time he needed to prepare his responses. This did not happen and he felt that the respondent did not act appropriately by giving him the time that he needed. I find that despite his feeling he needed more time he was able to provide a very long and detailed response. I do not accept that any more time would have assisted him.[118]Having received these responses Mr. Hassan contacted Nicola Smith on 16 March 2023 and asked her about the claimant’s role. He also visited Dartford to look at a sample of the 552’s.Mr. Hassan’s evidence was that Mrs Smith denied any knowledge of the overtime claims. She said that she had not authorised overtime being claimed for the day after a bank holiday and inputting a bank holiday credit. Her evidence was the level of work required in the book room was not at the level claimed by the claimants.[119]Mr. Hassan reviewed a sample five week period 29 March 2 May 2021 and looked at the hours worked. He also looked at the leave card. He understood that both individuals said that their leave was recorded in the Manpower plan and not yet logged onto the PSP but he found this to be a peculiar practice. On balance he believed that the charges were substantiated. He did not share any of this information with either of the claimants. They had no opportunity to challenge or question it. He had not interviewed any of the people that the claimants had identified as relevant. He formed his view on based on Mrs Smith’s information, the security investigation statement and his own enquiries. He received and read the claimant’s responses but did not interview any of those they identified as relevant.[120]On 18 March Mr. Everett received a letter with the disciplinary decision. That gave a penalty of summary dismissal the last day of service being the date of the letter. Three charges of gross misconduct were set out. These were claiming excessive overtime for hours he did not work then putting it in online payment system without authorisation for a sustained period of time; claiming scheduled attendance over time and scheduled attendance holiday payment inputting into an online payment system without authorisation over a sustained period of time; and claiming bank holiday credit and over time resulting in overpayment to himself and that he arranged this to be input into the online system without authorisation. The letter set out the right to appeal.[121]Mr Hassan’s decision is challenged both as unfair for the purposes of the subsequent dismissal and as disability discrimination. In terms of fairness, at the time Mr Hassan was unaware that Mr Trueman had authorised the arrangement the claimants had. He described himself as being gobsmacked when he saw Mr Trueman’s statement as part of later processes. When he made his decision he did so on the basis that the overtime was unauthorised and the work could not justify the hours claimed[122]The dismissal decision had in effect two allegations, that hours had been claimed that were not worked and the overtime was not authorised. He explained that from his perspective just because a manager authorises something that is Case No: 2302187/2023 &2302188/2023 wrong, that does not excuse individuals who are doing the wrong thing. The claimants should have known it was wrong and as far as he was concerned , from his experience of running similar units himself, no book room could justify the hours that they were claiming.[123]I find that while he formed a genuine belief both that the hours were not authorised and that they had not been worked, he had not carried out a reasonable investigation on which to form that belief. He did not take steps to investigate to what extent the overtime was authorised. Mr Hassan also confirmed that he was unaware that there was written confirmation from Mrs Smith that the next revision she wished to fill third full-time book room role. This was not disclosed to him, and he confirmed that it would have influenced the decision making process. It would have meant that at least some of the overtime claimed would have been justified.[124]In making his decision Mr Hassan relied on the investigation summary report from Mr Butcher which was full of inaccuracies , he relied on Mrs Smith evidence that was not shared with the claimants , and at this point they had still had no opportunity to challenge her assertions, and he relied on his own knowledge and some limited investigation he did which was not shared with the claimants. This was an unfair process.[125]In relation to disability, both claimants say that they were unable to fully participate in the disciplinary process as a result of their sickness absence and therefore their disabilities. Nonetheless I find that both produced extensive documentation cross-referenced to evidence in answer to the written questions that they were sent. I find that they were able to take part in the process. They were given the opportunity, as occupational health had recommended, of giving written answers and they did that. They were fully able to take part in the process despite their sickness absence. The appeal[126]Both individuals appealed against their dismissal. Ms Walsh who was appointed as the appeal chair met with Mr. Abbott on three separate days, 5,11 and 23 May 2023 and he was provided with a copy of the notes that she had taken and was able to provide her with amendments. Mrs Walsh treated the appeal as a complete rehearing.[127]It was intended that Mr. Everett meet with Ms Walsh on 1 July 2023. The day before Ms Walsh confirmed that Mr. Wise’s as trade union representative could be present ,but Mr. Everett need to answering direct questions. She also confirmed that while Mr. Abbott was permitted to attend this was in the role of emotional support but he could not speak for Mr. Everett or present any evidence. While I understand why Mr Everett found this distressing there is no procedural requirement for this to occur and it does not make the investigation unfair.[128]As a result Mr. Everett cancelled the meeting. He explained in oral evidence that he felt that he had been deceived by Ms Walsh. He had understood that it was appropriate for Mr. Abbott to attend and to deal with questions for him as he could remember the detail and the day before this was changed. There was therefore no face-to-face meeting with Mr. Everett but instead he was sent copies of all the Case No: 2302187/2023 &2302188/2023 documentation that Ms Walsh gathered during her subsequent investigation and was given an opportunity to comment on those documents. I find this was a found reasonable step in all the circumstances as Mr Everett would not attend the meeting.[129]Once Ms Walsh had met with Mr. Abbott she began a further investigation which took the form of interviewing 13 people. She also obtained annual pay data, a synopsis of the email sent by the two claimants with the date and subject heading, 552s from Dartford, pay data from PSP the email from Mr. Paterson to clarify his earnings. All of this was shared with both claimants. They had an opportunity to make comments. I note that Mrs Walsh confirmed when asked about this that she had reported other examples of malpractice to a more senior manager with responsibility for the relevant depot.[130]Mrs Walsh set out her explanation on why she reached her conclusions in relation to each of the appeal points. These are not identical for both claimants. Her letter was detailed and I find that she addressed all of the appeal points made.[131]In cross examination Mrs Walsh was challenged on whether she had interviewed everybody who was relevant. She accepted that she interviewed all the witnesses before Mr Everett’s written submission was received. She did not reinterview anybody as a result of the points he made. She was expressly asked why she had not interviewed Mr Paterson, who could give evidence as to the hours worked in the book room ,as well as the person who really knew what the DDA was about. Her response was that she considered she had sufficient evidence.[132]Both complained that medical advice from occupational health was ignored. In relation to Mr. Abbott, Ms Walsh felt there was no evidence provided of details which she could reasonably investigate of discrimination taking place. For Mr. Everett she believes had given him as much time as he required at all stages of the appeal. He confirmed this in his oral evidence. I accept Mrs Walsh’s evidence on the point.[133]Mr. Abbott and Mr. Everett raised a complaint that grievances were not investigated as part of the conduct process and were ignored by the conduct manager. Ms Walsh found that was not normal practice for a grievance to be accepted when full conduct investigation is being commenced. I accept her evidence on the point. This is usually the position within employers.[134]Ms Walsh addressed Mr. Abbott’s appeal point that he was denied the support to which he was legally entitled. Ms Walsh considered that Mr. Abbott was able to engage in a series of face-to-face meetings and speak eloquently and at length. There was no prejudice to him. I accept her evidence on the point. Mr Abbott was involved at length in the appeal process.[135]Mr. Everett appeal included a complaint that investigating managers had failed to obtain requested evidence as some had been destroyed. Mrs Walsh believed there was sufficient information for her to reach a conclusion. I accept her evidence on this point.[136]Mr. Everett also considered that Mr. Hassan had ignored the majority of his Case No: 2302187/2023 &2302188/2023 submissions and that he had withheld evidence from the case file. Mrs Walsh read and considered all the points raised by Mr. Everett, she also shared the statement that Mr. Hassan obtained from Mrs Smith as part of her appeal hearing.[137]A fair investigation does not require the respondent to explore every avenue and interview every individual. The decision-maker must act fairly and reasonably and do sufficient investigation so as to be able to reach a conclusion. I find that Mrs Walsh did a very thorough investigation that was reasonable in its scope.[138]Mrs Walsh concluded the notifications were proven in part. For notification one, that they claimed excessive overtime they did not work and without authorization, she concluded that this was proven in part. Her conclusion was that the hours claimed are excessive and do not appear to have always been necessary but they were in the main authorised. On the second allegation she found that excessive SA attendance was claimed but it was not proven that it was unauthorised. She felt that the individuals carried out work tasks for some but not all of the bank holidays but there was no reason why they should have been there at all as there was no meaningful work to perform. She found that allegation proven. While she did not comment on the authorisation point, she has generally accepted that the payments claimed were authorised in the sense that the appropriate paperwork was put through.[139]As to penalty she felt that neither showed remorse for their actions. She took into account that their service as mitigation but found the dismissal was the appropriate penalty. Mrs Walsh was taken to the conduct procedure and confirmed that she did not take into account any of the other mitigating factors that that sets out. These are illness, stress, lack of training or experience a new role, ignorance of standard, local arrangement at the relevant location. I find that she did in effect take account of the claimant’s illness during the disciplinary process but that had not arisen during the period to which the allegations related. There had been no question of lack of training or experience. Both individuals have been doing the role for a while. She did take into account the local arrangement at the relevant location. I’m satisfied that she acted within the respondent’s code and took into account the appropriate mitigating factors.[140]In cross-examination Mrs Walsh was asked in detail about her reasoning. In summary Mrs Walsh accepted that both individuals had been authorised by Mr Trueman to split the third duty between them, he had authorised bank holiday work, he had authorised rotating Saturday and Sunday work. She also accepted that it was depot practice to show the holiday SA across the week. In effect she accepted that all the practices that the claimants were accused of as gross misconduct had been agreed with the manager.[141]This was contrary to the respondent’s previous findings which had formed the view that there was no authorisation in two senses, not only was the working practice not authorised but also there was no relevant paperwork approving each particular shift or holiday. Mrs Walsh decision is made on a different basis to any of the investigating officers and the disciplinary decision maker. She accepted that there was appropriate paperwork. She also accepted that the working practice had been agreed. This was not only with Mr Trueman but had been accepted by Mrs Smith. Case No: 2302187/2023 &2302188/2023[142]However, she also felt that the claimants were not working the hours they were claiming for. This is the crux of her decision. Mrs Walsh formed this view based on two particular pieces of evidence. Firstly she interviewed the individual who took over the book room duty when the claimants were suspended. Mr Kerr took over as the only person in place of the two claimants. He had some previous experience of this work from another depot and he covered holidays. Mr Kerr explained that some of the tasks in the Dartford book room were new to him. He also explained that he was told that the claimants taken on extra work that is ordering stationary looking after excess uniform and key control but in his view that was not time-consuming work. He did explain that extra time might be needed if the claimants were doing the rotas, which is not something he had ever had to do. It was his evidence that there was not enough work for three people while he was in the book room. He was able to do the work during his assigned hours and did not work weekends. Mrs Walsh accepted the account that he gave her[143]Mrs Walsh had also done some investigation into what the claimant’s duties were to see whether or not they were comparable by interviewing Mrs Smith and taking her through the extra points that the claimants had said they did. The notes of interview with Mrs Smith set out in the form of a table tasks that the claimants said they did with notes of whether or not it was a usual task and whether or not the claimants did it. Mrs Smith identified most of these tasks were not usual ones. She accepted, however, that the claimants had taken them on. This included rubber band ordering and looking after stationery. It was Mrs Smith’s position that the claimants used extra tasks to fill their time during the week.[144]Based on the evidence from Mr Kerr and Mrs Smith, Mrs Walsh concluded that there was not enough work in the book room to justify the hours the claimant said they worked. She was not able to specify which hours were claimed for inappropriately .She was taken to evidence of some bank holiday work and could not identify which days she disputed. In summary Mrs Walsh felt that anything over and above the hours the current incumbent did would be wrongly claimed and not worked. She also concluded that the claimants had not worked all of the bank holidays they had claimed for since the current incumbent did not work any. While Mrs Walsh could not give specifics for all matters, I find that she formed a reasonable belief based on a reasonable investigation.[145]While she did not find all of the original allegations upheld, as I’ve said she found the matters were authorised, dismissal was also based on a view that the claimant had not carried out these hours. I’m satisfied that that in itself as a single allegation would amount to gross misconduct. Mrs Walsh found that that allegation was proven after her appeal investigation.[146]Having reached this conclusion she relied on the business standards which make it clear that one could not claim money from the company for hours not worked. I have found this was not something that had been made particularly clear to the claimants, nor did it accord with local practice. However, it has always been the claimants case that they did the hours for which they were paid. I find that they did therefore have an inherent understanding that this was a requirement for the number of hours that they were claiming. I find that Mrs Walsh was therefore acting within the reasonable range of responses in determining that the claimants were guilty of gross misconduct when she was satisfied that they were not being honest Case No: 2302187/2023 &2302188/2023 with her on the hours worked.[147]Her evidence was further criticised by the claimants in two respects. Firstly it was said that Mrs Walsh had a long-standing working relationship with Mrs Smith and she was not in a position to conduct a fair and independent investigation. This was not something that was put to Mrs Walsh at the time. It was raised that during her meeting with Mr Abbott when he had referred to Mrs Smith by her surname only Mrs Walsh had criticised that and said that Nicola was lovely. While that suggests that the two have at least met, it does not in my view amount to evidence of bias in the appeal decision maker. Mrs Walsh interviewed a large number of people and formed her conclusion based on all the information she had.[148]Secondly it is said that she did not consider and investigate any of the points raised by Mr Everett because these are made after she’d interviewed all the witnesses and she only reinterviewed one individual, Mr Hassan. Mrs Walsh’s view that no additional points were raised that required any further interviews. This is a decision she is entitled to come to on a reasonable basis. Challenges to the fairness of the procedure[149]I was referred on a number of occasions to various parts of the respondent’s own conduct policy and it was said by the claimants that the respondent had not followed its own policy. To an extent I have dealt with these matters in the chronology but where I have not done so set these out in more detail below. Suspension[150]The claimants were suspended from February 2022 until their dismissal on 18 March 2023. Throughout their period of suspension they received what were said to be precautionary suspension review letters. The respondent’s policy states that in all cases the precautionary suspension should only last as long as necessary. They must be reviewed at a 48-hours, and then weekly. During each review the manager must consider a number of specific points. It also specifies that the suspending manager must produce a report of the reasons of suspension. That should include an outline of the reason why the suspension has taken place and be provided the employee with the letter. Fact-finding must then start at the earliest opportunity, ideally within the first week.[151]Mrs Smith was the first manager to issue the precautionary suspension letters on 28 February 2022. The attached report gave these details. “ Suspension is appropriate in this case as there is a reasonable belief that there has been a serious breach/abuse of the systems that you have access to as part of your role as a Book room employee. This may have resulted in enhanced and inappropriate overtime payments being made, as well as incorrect inputting of annual leave, and the use of locally designed methods that are not in line with national standards.”[152]She continued to issue these letters weekly until 26 April 2022. Mrs Smith confirmed that she was not given any new evidence throughout the period that she was reviewing the matter. She hoped that she would have had some contact with Case No: 2302187/2023 &2302188/2023 the investigating manager to check whether there was more information, but could not recall whether she had or had not. She could recall that she had not seen any further documentation after the suspension first occurred.[153]After that there was no further letter until 15 September 2022 from Mr. Hassan. By 3 March 2023 the reasons for the precautionary suspension was said to be inappropriately claiming overtime, inappropriately claiming scheduled attendance and inappropriately claiming benefit from bank holiday credits. The delay between April and September does not appear to be in line with the respondent’s own policy. The length of suspension is also extremely long . The ACAS code specifies that suspension should be kept as brief as possible .[154]The respondent was not complying with the ACAS code in that sense. There appears to have been no actual review of evidence at any stage and I conclude therefore that the respondent was also not applying its own policy during the suspension period. The delay in the investigation is also likely to have made it more difficult for the claimants obtained evidence and for witness memories to be accurate. That, however, is a fault of the investigation process and not of the suspension. I do not find that the length of suspension itself interfered with the investigation, it was a product of that delay rather than its cause. It does not therefore contribute to any procedural issues with the dismissal process. It would undoubtedly have contributed to the claimants stress. No proper investigation[155]The code of conduct specifies that no conduct action will be taken against an employee until the case has been fully investigated. The employee will be made fully aware of all the evidence. Copies of all documents will be provided in a timely manner in line with the procedure.[156]As set out above, there was no fact-finding stage and matters went straight to disciplinary. The reason for this was set out in Mr Threlkeld’s evidence. The respondent considered that it had made reasonable efforts to engage with the claimants and had not been able to do so. They had reached an impasse. It is the claimant’s case this could have been unlocked by Mr Threlkeld doing what he had suggested he was going to do and what the occupational health advisor had specified i.e. send the questions in writing. Both individuals provided extremely detailed answers when eventually they were sent written questions. This could therefore have been effective as part of the investigation stage. I conclude that the respondent did act outside its policy. I also find, however, that this did not ultimately impact the outcome. Mrs Walsh carried out a full investigation as part of the appeal. No documents provided[157]As far as documents are concerned, this remained an issue throughout the conduct proceedings. The claimants made it clear from a very early stage that they required a significant number of documents in order to defend their position. These documents were never provided to them. The made it clear why they needed these. In particular they wanted to demonstrate that they did duties that were in excess of those in a standard book room which therefore justified Mr Trueman’s decision to get them to work extra hours as these hours were needed and were worked. They Case No: 2302187/2023 &2302188/2023 also wanted access to their emails to evidence they had worked the hours and days they had claimed for. These were never provided.[158]At points during the procedure the claimants were told to contact various individuals who could assist them with their emails. At other points they were told that they would have to come into the depot in order to access their emails. Mrs Walsh, however, was able to do this and did access emails as part of her appeal investigation. She did not, however, print out these documents or look at their contents but only at the dates and their headings.[159]I must conclude that it was therefore possible for the respondent to have met the claimants information request and it did not do so. Many of these documents have now been provided as part of disclosure and they do, as the claimant said they would, give evidence that they were working on some Sundays and Bank holidays and they also show some of the depot’s local practices.[160]In addition to a general failure to provide access to email, the claimants were never sent the notes of the investigative meeting with Mr Butcher. They did not have any opportunity to challenge these. I have found that they were inaccurate and relied on statements from Mrs Smith which were not correct.[161]The claimants were never sent the email exchange between Mrs Smith and Mr Butcher of 16 March 2022. Mr Hassan was also not sent this and he confirmed that had he been aware that in March 2022 Mrs Smith was suggesting that a third person was required in the book room as a permanent role that could have influenced his decision.[162]Mr. Abbott asked Mrs Smith a series of detailed questions about practices within the Dartford unit. He demonstrated through reference to emails that staff are commonly paid for hours rather than for work done. He demonstrated that he had raised the fact that holiday was recorded on manpower and not on the standard system. He demonstrated that he had raised the fact he was working at home with her. He demonstrated that she was also aware from emails that he was working on some bank holidays.[163]As to her criticism that the hours of overtime booked did not relate to hours worked, Mr. Abbott showed that it was standard practice within the Dartford unit for hours of overtime to be put at the time were no other work could be done for example at 2 AM in the morning. Mr Abbott also demonstrated that it was standard practice for all staff to book SA holiday across each day . There were a number of examples of these practices. Further Mrs Smith accepted that on some occasions the way she had authorised hours meant that over time was being paid at a higher rate than it should have been. I accept that under her management there were occasions when staff were not only paid for work they did not do but were paid at an incorrect and higher rate for overtime work. I find that she had been made aware of what the claimants working practices were. She had failed to properly comprehend this. The claimants were not given an opportunity to challenge this during the process until the appeal.[164]Mr Hassan explained that he had two folders of documents from Mr Threlkeld. None of these had ever been sent to the claimants by Mr Threlkeld when he was Case No: 2302187/2023 &2302188/2023 trying to persuade them to meet with him. Mr Hassan confirmed that the papers were disorganised, for example containing multiple duplications.[165]In the respondent’s conduct agreement document under the heading fact- finding file it is specified that the original manager is to prepare a copy of the fact- finding file and it specifies what should be in it. It should contain sufficient information for second line manager to develop conduct notifications. It would appear that Mr Hassan was not given the file in the appropriate format.[166]The documents from the case file were first provided to the claimant’s trade union rep on 10 February 2023 and at that point amounted to 150 pages for Mr Abbott with no chronology, numbering or table of contents.[167]The claimants were not sent Mr Hassan’s notes of his interview with Mrs Smith which influenced his decision. That was an important document. Mr Hassan confirmed that he looked at a number of 552 documents and did not share these either.[168]I find that the lack of appropriate documentation and the process was flawed until at least Mr Hassan shared some of the documents, but even he failed to share all those he considered. The conduct decision-maker was not therefore making a decision based on a reasonable investigation or one in which the claimant had a proper opportunity to present their case. This is particularly the case because Mrs Smith’s evidence was simply not challenged. Had the claimant had the chance to do so presumably she would have given the same evidence that she gave during cross examination which would have indicated that she had knowledge of what was happening and was not therefore a reliable authority on these points.[169]These defects, both the lack of sharing information and information about what Mrs Smith was saying and the ability for the claimants to explain why she was wrong were corrected by Mrs Walsh. She shared her draft report with both claimants which included the evidence that she had found before she made her decision. She carried out an exhaustive investigation. The appeal was therefore able to remedy the difficulties in the original procedure caused by failure to share information and provide documentation to the claimants. The claimants’ disability[170]The respondents accepts that both of the claimants have the mental impairment of anxiety and depression. It is accepted that Mr. Abbott was a disabled person from 25 February 2023, that date been 12 months after the initial diagnosis. It is accepted that Mr. Everett is a disabled person from 28 February 2023, that being 12 months after his initial diagnosis. Both went off sick once suspended. I was provided with some medical evidence by each claimant in the form of their GP notes together with the occupational health reports carried out by the respondent’s occupational health team. Mr. Abbott[171]Mr. Abbott had been referred to occupational health by the respondent on 27 August 2020 when there had been a decline in his mental health. At that point the Case No: 2302187/2023 &2302188/2023 occupational health practitioner’s opinion was that Mr. Abbott was not disabled within the meaning of the legislation. The report suggested that work-related stress was not a medical diagnosis or disease, and it was clear to the adviser that Mr. Abbott’s symptoms were associated with non-medical issues because the symptoms were predominantly related to a current work situation which would not have a medical solution.[172]There was a second occupational health report on 5 February 2021 which related to Mr. Abbott’s absence for Covid19. It makes reference to work-related stress. Mr. Abbott’s medical notes make reference to stress at work again on 30 July 2020. This ties in with the August 2020 occupational health report .It also notes that they cannot solve workplace disputes and this is stress at work. There is also reference to stress in the GP notes on 13 May 2021. This refers to a stressful situation at work and that Mr. Abbott could not going to work that day as the stress was so bad. There is no diagnosis in the GP notes and no medication is prescribed.[173]There is then what the respondent accepts as the initial diagnosis on 25 February 2022 when the claimant is prescribed medication for depression. It is Mr. Abbott’s evidence that he suffered from anxiety and depression for about four years prior to his dismissal.[174]The third referral to occupational health which took place on 15 June 2022 states that Mr. Abbott “was diagnosed with clinical depression anxiety (duration of years)” and had been prescribed medication in February 2022. The occupational health adviser reached the view that Mr. Abbott’s condition was likely to be covered by the Equality Act as they have a condition specified by the Act. The letter does not consider the date on which the depression started or its likely duration. It does take into account the diagnosis made in February 2022.[175]I find that the reference in the occupational health letter to duration of years reflects the previous history. I find that the occupational health report accepted that the condition was likely to be long-term in June 2022 but that this was based on the diagnosis from February 2022. On balance, given Mr. Abbott’s previous history of reaction to work-related situations I find that there was a real possibility that the condition was likely to last for more than 12 months at the point of diagnosis. I find that his medical condition met the definition of the Equality Act from 25 February 2022.[176]I find that the respondents were put on notice that the claimant was covered by the Equality Act by virtue of its own occupational health department report from June 2022. Mr. Everett[177]Mr. Everett’s medical history was also set out via copies of his GP notes. They showed that on 21 May 2020 Mr. Everett had completed an online consultation which had reviewed Mr. Everett’s symptoms and rated this as mild anxiety with no high-risk signs. The GP reviewed the answers he had given to this online service, and Mr. Everett was prescribed the medication to calm him and help him sleep at night. The notes indicate that the symptoms were connected with issues at work. Case No: 2302187/2023 &2302188/2023[178]There is another entry for 28 February 2022 when Mr. Everett reports that he is under a lot of stress at work and has been under a lot of pressure. He is feeling shattered and low in mood. Medication was prescribed to assist with sleep. There are no other entries in his GP records that relate to stress.[179]Mr. Everett was referred to occupational health and a report was written on 14 June 2022. That identified that it was thought his symptoms were likely to continue until the case had been resolved and that any long-term outcome could not be predicted. In the opinion of the occupational health advisor Mr. Everett was not likely to be covered by the Equality Act because his condition had not persisted in excess of 12 months and his ability to carry out daily duties was not significantly impacted.[180]Again, there is very little medical evidence to assist me in considering the question of disability. I accept the opinion of the occupational health specialist that as at 14 June 2022 there was no reason to believe that the condition was likely to last for 12 months. The GP records show that Mr. Everett has reacted to difficult situations at work previously with some symptoms of stress but there is nothing to indicate that the stress was ongoing in between these periods. Mr. Everett says that is because he took steps to avoid stress and reduce the impact. On the balance of probabilities, taking into account the occupational health advice I find that there was no reason to believe that it was a real possibility Mr. Everett’s symptoms would be long-term at the point of what is now accepted by the respondent as diagnosis in February 2022.[181]I have no evidence before me as to when Mr Everett’s medical condition deteriorated or what his GPs advice was. In the absence of that, I find that there was no reason to believe that was a real possibility that Mr Everett symptoms would be long-term until the 12 month anniversary of the initial diagnosis. I find Mr Everett’s medical condition met the relevant definition of the Equality Act from 28 February 2023. The respondent has conceded that it would have been on notice that Mr Everett was disabled from this date. Sickness absence[182]Both Mr. Abbott and Mr. Everett began periods of sick leave in February 2022. After six months of full pay, in accordance with this policy, from 15 August 2022, their pay was reduced to half pay. Neither claimant disputed that this was the respondent’s standard policy.[183]In the list of issues this is one of the acts of discrimination arising from disability relied upon. When questioned on this point Mr. Everett said that this was not a complaint that he was bringing. His complaint was that he provided the respondent with a fit to work note from his GP which signed him back to work with adjusted duties from around 28 August and yet his pay remained as half pay until 9 September. Mr. Abbott similarly provided a fit note from his GP saying that he was fit to return on amended duties from 15 August 2022. He was ultimately given full pay for this period.[184]It appears therefore that the claim is in fact that there was a delay in restoring full pay and that although both individuals raised grievances about this, it took the Case No: 2302187/2023 &2302188/2023 employment tribunal litigation to get matters restored for Mr. Everett, Mr. Abbott’s being addressed at the end of the grievance procedure. It became clear from Mr. Abbott’s questioning of Miss Scott who heard the grievance about the pay issue that the complaint was about not being allowed to make written representations. providing written representations.[185]I asked Miss Scott about the respondent’s policy on sick pay and half pay. She confirmed that it is the policy to pay for six months absence where an individual had no absence in the previous four years. That pay is always cut to half pay after six months. There are no exception to this. Mr. Abbott accepted that that was the case and that was the respondent’s policy. The protected disclosures[186]It is Mr. Abbott’s evidence that he made verbal disclosures to Mrs Smith between March 2021 to March 2022, that is prior to the suspension in February 2022. He made some reference to this in his witness statement and at the case management hearing in November 2024 he set out a number of matters then formed the issues list on these points.[187]Mr Abbott identified that on many occasions from March 2020 -1 March 2022 in email and verbally he told Mrs Smith that staff are being paid for more hours than they had worked, staff were being paid overtime rates when they had worked hours that should not attract that rate, in particular agency workers were out of control and staff were working excessive hours in breach of the Working Time Regulations. Mrs Smith had little recollection of conversations about these matters but did accept that they had almost daily conversations.[188]Mr. Abbott took Mrs Smith to a number of examples within the various papers of emails that he had sent. On 8 September 2021 he tells her that he thinks there is a very suspicious hours on the casual sheets and he thinks that “we are being milked”. He expands on this by giving details of a particular individual and their start and finish times. I find that a reasonable manager receiving this email would understand from this that Mr Abbott was reporting more than a breach of local rules but potentially fraudulent conduct.[189]The bundle included an email exchange on 22 September 2021 about overpayment of agency staff. The conduct of one individual was raised in particular. There is ongoing correspondence on this point and Mrs Smith then authorises claims for back pay. It was raised as a potentially serious problem with audit. It was Mr Abbott’s evidence that Mrs Smith had authorised her claim for 39 hours past pay despite the fact the worker had not worked these hours. He also said that he told Mrs Smith that casuals were being paid without any checks and that one individual had been paid for eight hours working only four. It was Mr Abbott’s evidence that he believed that this was potential fraud and that was what he was raising. While he does not do so in express terms, I find that a reasonable manager would have understood what was being reported to her was information about potential malpractice which went beyond a breach of company rules in the claiming of monies. He was in effect reporting potential wrongdoing.[190]Mr Abbott also raised concerns about breaches of the working time directive, in Case No: 2302187/2023 &2302188/2023 particular an individual who drove a taxi upon finishing his shift. The bundle does contain emails of 18 October 2021 discussing an individual who has broken the working time directive. There are a number of exchanges in which individuals who have worked over the appropriate hours limit are identified which record information only. There is a further example of 25 October 2021 when Mr Abbott makes a clear statement that individual has again broken the working time directive by seven days. On 9 November 2021 Mr Abbott identified that another individual is breaking the working time directive. On 7 February 2022 he is again pointing out individuals cannot work because they will break the working time directive. I find that all of these emails, which predate Mr Abbott’s suspension, provide information about potential wrongdoing, namely a breach of a legislative requirement.[191]Mr. Abbott stated that there were many more emails he had sent to Mrs Smith raising whistleblowing concerns and the respondent had failed to disclose these. I was referred by him to a 25 page handwritten list which had been sent to the respondent identifying all of the emails that he asked for which he said would have demonstrated both his whistleblowing activity and the hours agreements. It was the respondent’s position that all relevant documents had been disclosed.[192]While Mrs Smith gave evidence that she had interrogated her emails and had not found any further documentation, on the balance of probabilities I accept Mr. Abbott’s evidence that he did send these emails. It seems unlikely that he would be able to recall this level of detail to create a 25 page document had he not done so. I therefore find that he did raise additional concerns which are not in the bundle.[193]I also note the schedule of emails that Mrs Walsh prepared in which she considered the title only and not the content. In particular those show that on the 10 and 11 November 2021 Mr Abbott sent an email with the heading “potential fraudulent claim”. While some of the emails that I do have about overtime rates and overpayments do not on their face provide information about potential wrongdoing, I accept Mr Abbott’s evidence that he understood that he was raising that as a potential fraud and he certainly did so expressly at least on the 10 and 11 of November 2021. I find that the emails in relation to working time directive breaches are providing information about potential breach of a legal obligation. I also accept that Mr Abbott’s recollection is clearer than that of Mrs Smith and he raised similar matters of potential fraud and/or breach of law with her verbally throughout the period of March 2021 - March 2022. He was doing more than reporting on examples of local practice of price worked overtime.[194]In March 2022 Mr. Abbott contacted the speak up helpline and raised all of these concerns. This included concerns about tens of thousands of pounds over time being paid by management despite knowing the not being worked made reference to a specific day in February 2022. Mr Abbott referenced overtime been paid twice for the same work, casual hours being paid without any formal checks or supervision and a written instruction from the MPU manager to manipulate the hours of staff who had broken the working time directive. This was specified to be malpractice.[195]On 25 April 2022 in a follow-up Mr Abbott explained that he had significant evidence of malpractice potentially amounting to illegal activity by local management. He repeated the same list of matters. I find that at least by 25 April Case No: 2302187/2023 &2302188/2023 2022 Mr Abbott has provided information about the 10 matters which he has stated amount to illegal activity.[196]On the balance of probabilities I find that it is likely that the claimant raised these complaints both verbally and in email in the same way to Mrs Smith as he did to the speak up helpline. In addition to finding specific examples of whistleblowing on the 8,22 September, 18 and 25 October, 9, 10 and 11 November 2021 and 7 February 2022, I find it likely that there were many other dates in this period when he did the same. This was well before the suspension. He raised the same matters again after suspension at least from 25 April 2022.[197]On 16 May 2022 Mr Abbott again followed up with speak up and added a new matter, management authorising disposal destruction of customers mail. It is accepted by the respondent as potentially a criminal offence.[198]I also find that, while his raising the issues at the time he did with the speak up line was influenced by the fact that he was undergoing disciplinary issues, he had a reasonable belief that the allegations he was making were true With the exception of the information about the destruction of mail which is raised for the first time on 16 May 2022, he had raised these both in writing and verbally with management well in advance of the conduct action being taken against him. I find Mr Abbott raised them through the speak up line because he was frustrated that nothing was being done and that he was himself now facing conduct charges the matter that he considered were less serious. Nonetheless, although I accept that there was some connection between this and the disciplinary matter I find that these charges were raised in good faith.[199]The protected disclosure relied on in relation to the destruction of mail, has been accepted by the respondent as a qualifying protected disclosure. I find that this was brought up over a year after the incident happened. On the balance of probabilities I find that the reason Mr Abbott brought this up at this time was influenced by the conduct proceedings and what he believed Mrs Smith’s role was in that. Nonetheless, I find that this was made in good faith as it was raised from a genuine concern about the wrongdoing.[200]Mrs Smith said that while Mr. Abbott did regularly query issues about hours and over time with her as part of the role she did not consider this to be whistleblowing or anything other than usual discussions. It simply did not cross her mind that it could be whistleblowing and she was very surprised to discover because of the litigation that this was potentially what it was. She generally thought that Mr. Abbott was passionate about his work and devoted to the respondent’s business and was simply raising his thoughts.[201]While I accept that individual managers may not be fully aware of the nuances of what amounts to a legal whistleblowing claim, I find that on an objective basis Mrs Smith knew or ought to have known that Mr Abbott was raising complaints to her of breaches of law and possible fraud. Whether she characterised that in her own mind as whistleblowing I find that she knew that potentially serious allegations were being raised about the way in which she managed her unit. This would have been in her mind prior to the suspension. Case No: 2302187/2023 &2302188/2023[202]She was also contacted by Mrs Knight Smith at sometime in June or July 2022 when the allegation that she destroyed mail, which is a serious criminal offence, was put to her. Mrs Smith was therefore aware not only that there was formal whistleblowing, but a very serious whistleblowing complaint has been made directly about her. This is before she speaks to Mr Hasan in 2023.[203]Her attitude to Mr Abbott is less positive than she described in her oral evidence. By 5 October 2022. in an email to Mrs Knight Smith, which Mrs Smith sends after having been told that Mr Abbott had access to her sickness record, she expresses concerns that he has broken the law and brings into doubt his level of integrity. She also says “knowing the character, and how nasty he can be, I’m worried that he might use my personal data if things don’t go his way!”. This comment is made in the context of whistleblowing process. I find that while she was no doubt upset about Mr Abbott having access to data, she goes beyond that in her assessment of his character. I find that this shows some hostility towards Mr Abbott which is not triggered for the first time by the information she’s given in October 2022. I find that it was an opinion she had formed prior to that.[204]On 16 March 2023 Mrs Smith again makes reference to Mr Abbott’s access to her personal data which she became aware of as part of the whistleblowing investigation and tells Mr Hassan that she was deeply unhappy about Mr. Abbott having access to her personal record and felt was none of his business to go snooping into her personal situation. She was considering pursuing this and stated that she felt violated. She was asked about this comment in cross-examination and confirmed she felt Mr. Abbott had no right to do this. While she accepted that he had been asked to look at absence within the unit this did not, as far as Mrs Smith was concerned, give him the right to look at her absence. This email shows a degree of hostility to Mr Abbott because of information that she became aware of during the whistleblowing investigation. I find that it builds on her existing negative opinion about him.[205]On the balance of probabilities I find that the informal allegations that he made to her, and the formal whistleblowing complaints were influencing Mrs Smith’s attitude towards Mr Abbott. Detriment claims[206]Mr. Abbott complains of five matters as detriments. Mr Abbott’s case was these detriments occurred for 2 reasons. Mrs Smith was involved in the process and influenced matters because of the whistleblowing. The second part of the complaint is that Mr Abbott’s whistleblowing was well known and he was targeted by Mr Skitch, Mr Faleti and Mrs Smith based on previous history of whistleblowing which identified significant malpractice and potential criminality from Mrs Smith and her management unit. A series of managers colluded with those 3 to ensure the claimants were dismissed without following Royal mail or ACAS standards.[207]It was also Mr Abbott’s case, however, that these group of managers joined together making allegations of fraud and malpractice against him because he had raised a previous grievance some two years previously. He sets this out in an email to the speak up line on 9 April 2022. Case No: 2302187/2023 &2302188/2023 (i) Cause Mr. Abbott to be investigated for conduct[208]The chronology shows the following things happened. On 8 January 2022 Mr. Faleti, a cover manager at Dartford, highlighted concerns over the level of overtime booked by both of the claimants. He sent an email to Mr. Anstiss explaining that he had received an automated report before Christmas that Mr. Abbott had gone over the limit of work hours and had booked 79 hours when the limit is 70. That made him question how anybody could work that number of hours in the week and therefore he made some further enquiries. He ran various reports and identified that Mr. Abbott had received payments of around £60,000 for 2019 and 2021 the basic pay is only £20,000. He indicated in his email that he had discussed the matter with Mrs Smith and she had promised to look into it.[209]Mr. Anstiss responded on 10 January confirming his view this appeared to be incredibly unusual and it would appear impossible to earn an additional 200% of pay. He encouraged Mr. Faleti to take it further. On 17 January Mr. Faleti sent an email to Mrs Smith following on from his conversation with her with further details. He set out that Mr. Abbott average basic pay £25,000 and had consistently been paid £60,000 per year representing over hundred percent over his basic pay. He concluded that it was patently unfair for anyone in the book room to accrue the sort of numbers. This email was also sent to Mr. Skitch who in turn sent the information on to the security helpdesk confirming that the issue was also replicated by Mr. Everett.[210]In this way it was referred to Mr. Butcher as lead fraud investigation manager. It was his evidence that Mr. Skitch had also looked at the data for 2021 – 2022 year that found huge amounts of overtime booked at times when neither claimant been in the building. Review of that data also highlighted what was thought to be old annual leave patterns and all bank holidays been booked as credit. It also showed significant hours had been booked on Sundays. He therefore felt it appropriate to conduct an investigation. As a result of that investigation the matter was referred for a disciplinary investigation.[211]The guiding minds behind the investigation which triggered the entire conduct matter were Mr. Anstis, Mr. Filati and Mr. Skitch. While Mr Abbott said that his whistleblowing was widely known, there is no evidence that Mr. Anstiss or Mr. Faleti were aware of the verbal complaints or emails that the claimant had sent to Mrs Smith. I find that the initial investigation was not because of their knowledge of the verbal or written whistleblowing communications made by Mr. Abbott to Mrs Smith.[212]If, as I have found, Mrs Smith had a negative attitude towards Mr Abbott and was on notice that he had raised matters of fraud and/or breach of law with her, albeit not understanding that amounted to whistleblowing, I would have expected her to have acted more swiftly when she was told about the investigation. She did not do so.[213]If anything, Mrs Smith does not take speedy action, it is others that move this forward. It was Mr Abbott’s suggestion in his questioning of Mrs Smith that her delay was because she did not want any spotlight on her management actions. On the claimant’s case Mrs Smith would have a motive for not causing the matter to be investigated. That alternative motive is not consistent with Mr. Abbott’s case that the Case No: 2302187/2023 &2302188/2023 investigation was motivated by any whistleblowing. It is also not consistent with his position that managers were colluding against him because of a previous grievance.[214]I find that Mrs Smith did not cause the claimant to be investigated. She was not involved in the matters that started the process. There is no evidence that those who did start this process were aware of the whistleblowing complaints as at this point had been made only informally to local management. Mr Faleti did not work in the same depot. There is no evidence of a conspiracy between managers. There is no evidence that Mrs Smith manipulated other managers to start the investigation. (ii) Failed to conduct his conduct case impartially[215]While there are many procedural faults with the dismissal procedure there is no evidence that the case was conducted badly because there was a deliberate attempt by management in collusion because Mr Abbott’s whistleblowing was well known.[216]The question then is whether Mrs Smith was able to influence the conduct of the case so it was not impartial and if so was that because of the allegations Mr Abbott had made? I have found that she was made aware of the formal allegations as part of the speak up investigation. If she did not understand the informal allegations about fraud and breach of working time regulations made to her to be whistleblowing prior to the point they refer to speak up, she certainly did thereafter. She was also made aware by Mrs Knight Smith at some point in June or July 2022 of the allegation made Mr Abbott in May 2022 that she had committed the criminal offence of destroying customers mail.[217]It was Mrs Smith’s evidence that she had no involvement in the conduct case. I have found that that is not, however, the case. She was involved in the initial investigation by Mr Butcher as he spoke to Mrs Smith as part of his investigation. During the process Mrs Smith was also interviewed by Mr. Hassan. This was after she became aware of the allegation about destruction of mail. This took the form of a response to written questions in an email. I find that Mrs Smith’s information was material to both the security investigation and the disciplinary investigation carried out by Mr Hassan which led to his decision to dismiss. She is therefore involved in the start of the process and involved in providing information which leads to the initial dismissal.[218]I find that the information that Mrs Smith gave both to Mr. Butcher and to Mr Hassan was not 100% accurate. She did not have a clear understanding of what it was the claimants were doing. She did have the opportunity to check this either by asking them or by looking at the various documents that they filled in in common with other staff to authorise hours overtime et cetera. She never did so. Instead I find that she relied on her own observation of when the claimants were in the building and her belief as to what the job entailed rather than any evidence of this. I have also found that her evidence was accepted by all of Mr Butcher, Mr Threlkeld and Mr Hassan.[219]While I have found that her statement was not evidence-based, it was not her job to do that investigation. It was not her role to ensure that Mr Butcher took accurate notes and /or share these. These failures are down to him and there is no Case No: 2302187/2023 &2302188/2023 evidence that Mrs Smith had anything to do with that. It was the job of Mr Threlkeld and Mr Hassan who were tasked with the investigation to carry out that investigation and to expand their enquiry beyond her information. It is their failure to carry out further investigations that leads to the dismissal. They both effectively ignored or discounted all the information from the claimants without taking sufficient steps to check it. There is no evidence that Mrs Smith influenced them not to investigate properly. While her answers are not accurate, both were aware that the claimants had suggested that the previous manager be interviewed and chose not to do so.[220]While I have found that Mrs Smith did not have a positive attitude towards Mr Abbott and that may well been influenced by his continuous raising of issues that amount to whistleblowing, I have found that she did not influence the fairness or unfairness or bias of the disciplinary process. Informed Mrs Smith of confidential information regarding his whistleblowing allegations[221]The speak up complaint was addressed by Ms Knight-Smith. She confirmed that she carried out an initial investigation or around 21 March 2020 which included a conversation with Mrs Smith.[222]It was Ms Knight Smith’s evidence that she had to ask Mrs Smith about the issues that Mr. Abbott had raised. There was no other way to conduct the investigation. It was therefore in line with standard practice to do this. Further, Mr. Abbott had consented to his name being disclosed during the investigation. This was explained to him in an email from Ms Nightingale, director of compliance and ethics for the respondent on 16 September 2022. In response Mr. Abbott confirmed that he did not wish to remove his consent for disclosure of details. In his response he complains that the case is being discussed with Mr. McHardy but the issues list details the complaint as being in relation to Mrs Smith only. I find that Mrs Knight Smith was acting in accordance with the respondent’s policy in disclosing Mr. Abbott’s identity to Mrs Smith. She had his consent to do so and there was no other practicable way of conducting the investigation.[223]Mr. Abbott complains that this sharing was detrimental to him because Mrs Smith was a witness in the conduct investigation. I have already addressed this matter in terms of any potential bias that Mrs Smith was able to inject into the proceedings and found that she did not do so and that the failures in the process were down to others. There was therefore no detriment in informing Mrs Smith of what occurred, as I said in order to investigate this was a reasonable and natural thing for the respondent to do. (iv) Failed to properly consider the three grievances that he submitted[224]The respondent’s grievance policy specifies that if a complaint is not appropriate to be heard at the grievance policy that the employee should be informed in writing of the reasons why that complaint will not be heard. This should be explained fully to the employee and the grievance record should be updated. Records should be kept of all discussions on contact made with any employee has raised a complaint or during the grievance investigation.[225]On 12 December 2022 Mr. Abbott submitted three grievances to Clyde Case No: 2302187/2023 &2302188/2023 McHardy. Despite chasing for these two be addressed, the claimants were informed by the respondent’s representatives as part of the correspondence with the employment tribunal that no grievances appear on their records. Mr. Abbott believes that Mr. McHardy did not enter these on the people system portal. The respondent’s legal representatives confirmed that there were no record of the grievance on their HR files. I accept that these grievances were not therefore noted as such.[226]Mrs Knight Smith gave some evidence on this point. She explained that the grievances that were submitted relate to elements investigated as part of the speak up process and Mr. McHardy’s involvement in that process. There are also grievances about the speak up team, Miss Nightingale and Mrs Knight Smith. On 23 December Mr. McHardy does respond and informs Mr. Abbott that the only element that could be heard as a grievance would be the management of the sickness absences. That was indeed dealt with by Ms Scott. Mrs Knight Smith therefore believes that the reason the grievances were not dealt with that should have been raised within the conduct process and not a separate grievances.[227]Mr. McHardy was aware of the speak up complaint as he was briefed by Mrs Knight Smith about her conversations with Mr. Abbott. On the balance of probabilities I find that the reason Mr. McHardy did not enter the grievances onto the system was not as an act of detriment because of his knowledge of Mr. Abbott’s whistleblowing, but because he did not believe that they were grievances that could be investigated as such. He informed Mr. Abbott of this. (v) Speak up failing to address his whistleblowing complaints[228]On 18 March Mr Abott received an email from the speak up helpline confirming that the issues he had reported had been allocated for investigation. He responded that he believed both himself and Mr. Everett have been deliberately and maliciously targeted by the management and he wanted assurances that the investigation be conducted outside of those people.[229]On 9 April he contacted the speak up team again by email setting out more details of his complaint and complaining that he had not been contacted. He set out 10 points of concern.[230]On 25 April Mr. Abbott chased for some response pointing out that he had had none. He reiterated again his 10 points of concern. On 16 May he contacted speak up again, 60 days after his original call, to point out he still had no contact from any investigator despite the fact he had provided written and pictorial evidence to support his concerns. He set out his list again and is now included an additional issue of management authorising the disposal and destruction of customers mail.[231]Mrs Knight Smith explained the process that was followed. Mr. Abbott had summarised the main points in his email to speak up on 9 April 2022. That was a 10 point summary. She originally bounced the report back to Mr. Abbott is not something that could be investigated under the speak up process as she believed it actually related to the conduct investigation.[232]On 5 May 2022 Mr. Abbott also engaged in dialogue with leaders including the former chief executive officer. As a result Mrs Knight Smith was told to get a better Case No: 2302187/2023 &2302188/2023 understanding of the issues that Mr. Abbott was raising. The organisation needed to respond as Mr. Abbott was sending lengthy and concerningly worded emails to senior leaders. Mrs Knight Smith then spoke to Mr. Abbott on five occasions by telephone for around nine hours of conversation in total.[233]She explained that Mr. Abbott made several references to having a lot of evidence of multiple wrongdoings at the Dartford site but she considered that there was no tangible evidence, only his opinions. Mr. Abbott suggested there was physical evidence he could obtain from emails. Mrs Knight Smith tried to gain access herself. To do so she had to specify which emails she wanted sight of what they related to and when they were sent Mr. Abbott could not provide the specifics. He was also not prepared to attend one of the respondent sites to allow him to retrieve what was important. Mrs Knight Smith was not prepared to attend at his home with a laptop and printer. She felt that was not appropriate.[234]On 23 September 2022 Mr. Abbott wrote to Ms Nightingale with new allegations and Mrs Knight was asked to investigate these. This included an additional issue that post had been destroyed, which had been raised to speak up in May . As this was not linked to the conduct allegations Mrs Knight Smith did decide to investigate that point. To do so she spoke to Mrs Smith who said that the letters were undeliverable. She also spoke to security who confirmed that they had given the instruction to destroy the mail in those circumstances. The conversations were not minuted and Ms Knight Smith said that that is usual for a speak up investigation. She didn’t speak to anyone else[235]The claimant explained that he became aware of this last issue in around March or April 2021. Mrs White gave evidence on the claimant’s behalf and confirmed that in approximately April 2021 she became aware, and it was general knowledge that a large amount of mail had been handed in by customers to enquiry staff which had been dumped by agency staff. This mail was kept in mail sacks in the manager’s office at the rear of the delivery floor. Mr. Abbott said that he raised with a manager what was happening to it and why it couldn’t be delivered and he was told that they didn’t know, they were waiting for Mrs Smith to decide. Mrs White gave similar evidence and said that she also questioned a number of managers as what was happening and she was also always told we don’t know we are waiting for Mrs Smith to decide.[236]Mrs White was able to tell me that on 12 July 2021 she was approached by a manager who asked her to supply confidential waste disposal bags and ties that were used to send to mail destruction in Belfast. He instructed a colleague of hers to assist her in filling the bags of the mail left in the manager’s office. She had taken photographs of this mail and gave evidence that the mail was deliverable with only mild water damage on the envelopes.[237]She disputed the evidence given by Mrs Smith that it could not be delivered to customers homes because it was covered in rat droppings or bugs/maggots. Mrs White said that she had opened bags to check. She was pregnant at the time she was acutely conscious of risks to her unborn child and would not have touched it had she seen any such substances. In her view, the mail was entirely deliverable.[238]Mr. Abbott said that he understood and it was common knowledge that the mail Case No: 2302187/2023 &2302188/2023 was then sent to Belfast to be destroyed. He believed this to be a breach of the respondent’s procedure with regard to delivery and damaged mail and potentially a criminal offence.[239]I accept his evidence supported by Mrs White, who saw the mail, that it was deliverable and that it was sent for destruction. Mrs Smith accepted that it was a breach of the respondent’s code not to deliver deliverable mail. She accepted that the photographs of the mail from Mrs White indicated the mail was deliverable. She also accepted that it was a criminal offence to destroy deliverable mail. Her explanation was, however, that the mail identified by Mrs White and photographed by her was not the mail that she was talking about or instructed to be destroyed.[240]Mrs Smith said she was referencing a trolley full of post that was covered in urine/droppings/maggots which was undeliverable. She could not recollect many details of this but said that as far she could recall she was on holiday when this mail was located. It was left in the manager’s office for a short period and she then contacted security, asked their advice and, on their oral advice, only had the mail destroyed.[241]Mr. Abbott of course raised a complaint about this on 16 May 2022. Ms White took photographs contemporaneously in 2021 and her evidence was clear. Mrs Smith was less able to recollect events. On the balance of probabilities I find it unlikely that mail that was as contaminated as Mrs Smith describes was left in a manager’s office for any period of time. I therefore prefer the claimant’s account and accept that they understood that Mrs Smith ordered the destruction of deliverable mail. Neither Mr. Abbott nor Mrs White were given that instruction themselves and they rely on others for this information. Nonetheless, I find that they both had a genuine belief that this had occurred and on the evidence I have heard find that is likely to have happened. On the balance of probabilities it seems unlikely there were 2 lots of destroyed mail.[242]This much more detailed explanation was provided as part of the litigation. At the time Mrs Knight Smith merely spoke to Mrs Smith in September 2022 and accepted what she said. I conclude that the report could have been much more thorough and this allegation was not properly investigated.[243]Following these limited investigations and telephone conversations with Mr. Abbott, Ms Knight Smith concluded her report. It identified 13 matters, including the destruction of the mail. That was allegation one which I have dealt with above. On allegation two Ms Knight Smith was satisfied that matters were not occurring in the way Mr. Abbott suggested. The third allegation was taken by Ms Knight Smith to refer to Mrs Smith’s absence recording. Ms Knight Smith felt that the issue here was with Mr. Abbott accessing the record rather than anything else.[244]The remaining allegations were said by Ms Knight Smith to require further evidence in detail for her to pursue them. Having said that, she does provide some information about all of them. She did not consider that there was any wrongdoing or issues.[245]The allegations raised by Mr. Abbott are potentially serious, for example a breach of the legal limits on driving hours. Ms Knight Smith simply comments that Case No: 2302187/2023 &2302188/2023 she would be surprised this were an issue given the respondent’s continual focus on health and safety. Her investigation is relatively perfunctory. She essentially concludes that Mr Abbott has not provided evidence and this is all linked to the conduct case which needs to be progressed.[246]The issue that I am asked to determine is whether or not speak up failed to address these whistleblowing complaints and if so that amounted to a detriment because he had blown the whistle. I find that Ms Knight Smith had carried out a very limited investigation into the allegations. The report does give an answer to the complaints, although I have found that further investigation could have discovered more about the potential destruction of mail. I also question the response in relation to the working time breaches. Mrs Walsh gave evidence that as a result of her investigation as part of the appeal she had reported a number of concerns further up the management chain. I understand that Mrs Walsh therefore found some substance in some of Mr Abbott’s allegations and yet Mrs Knight Smith did not.[247]I find that Mrs Knight Smith’s investigation was not sufficient and it did not address the complaints made. While it was potentially to Mr Abbott’s detriment that the matter was not investigated more fully, I also find that any failure to address the complaints more substantially was because it was viewed as connected to the conduct case and because Mr. Abbott did not produce evidence in support of his allegations.[248]Mrs Knight Smith’s role is to investigate such complaints and it is unlikely that she would do a poor job in doing so because of the act she was investigating. While Mrs Knight Smith took Mrs Smith’s evidence as accurate , for example on the mail destruction, there is no evidence that she did so because she was part of any conspiracy engineered by Mrs Smith which influenced her to fail to investigate thoroughly. I find that Mrs Knight Smith did the same job on this occasion that she would have done for anyone else. Her limited investigation was not because the claimant had blown the whistle. It was because she considered it was all part of the conduct case.[249]There is a dispute between the parties as to the date on which Mrs Knight Smith concluded her report. It is not dated and her recollection is that she concluded it sometime in June or July 2022 following her discussions as set out in her final report. The claimants, however, produced meta data which suggested that the reports were created on 24 August 202428 November 2024. On the balance probabilities I find that these dates are likely to be the dates on which the documents were sent to external advisers as part litigation that accept Mrs Knight Smith’s evidence that she completed the report around the time of her investigation. Relevant Law Disability[250]Section 6(1) EQA sets out the statutory definition of disability: a physical or mental impairment which has a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities.[251]Section 212(1) EQA defines ‘substantial’ as ‘more than minor or trivial’. This is supplemented by Schedule 1 Part 1 EQA ‘Determination of Disability’ which says: Case No: 2302187/2023 &2302188/2023a. The effect of an impairment is long-term if it has lasted for at least 12 months, it is likely to last for at least 12 months, or it is likely to last for the rest of the life of the person affected. Note that the long-term requirement relates to the effect of the impairment, not merely the impairment itselfb. If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.c. An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if—i. measures are being taken to treat or correct it, and ii.but for that, it would be likely to have that effect.d. “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.[252]It is important to note that the issue of how long an impairment is likely to last should be determined at the date of the discriminatory act and not the date of the tribunal hearing —McDougall v Richmond Adult Community College 2008 ICR 431, CA[253]The consideration of whether an impairment is likely to last means, based on the House of Lords decision in Boyle v SCA Packaging Ltd (Equality and Human Rights Commission intervening) 2009 ICR 1056, HL, whether the substantial adverse effect could well happen. The word likely means something that is a real possibility. Not something that is probable or more likely than not. Direct Discrimination[254]The claim is direct discrimination. S13 of the Equality Act (“EqA”) provides “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”.[255]S.13 EqA focuses on whether an individual has been treated ‘less favourably’ because of a protected characteristic, the question that follows is, treated less favourably than whom? The words ‘would treat others’ makes it clear that it is possible to construct a purely hypothetical comparison.[256]Whether the comparator is actual or hypothetical, the comparison must help to shed light on the reason for the treatment. We were referred to Shamoon V the Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11. The comparator required for the purposes of the statutory definition of discrimination must be a comparator in the same position in all material respects of the victim so that he, or she, is not a member of the protected class. There must be ‘no material difference between the circumstances relating to each case’ when determining whether the claimant has been treated less favourably than a comparator.[257]The unfavourable treatment must be “because of” the protected characteristic. The protected characteristic needs to be a cause of the less favourable treatment but does not need to be the only or even the main cause. Whether an act or omission amounts to less favourable treatment is an objective question for the Case No: 2302187/2023 &2302188/2023 tribunal to decide. While the claimant’s perception of such treatment is relevant, it is not determinative. Further, it is not enough for the claimant to show that he was treated differently; he/she must demonstrate that such differential treatment was unfavorable (Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065.) S 15 discrimination arising from disability[258]Section 15 EqA, which is headed ‘Discrimination arising from disability’, provides that a person(a) (A) discriminates against a disabled person(b) (B) if: A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. S.15(1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.’[259]Pnaiser v NHS England summarised the proper approach to establishing causation under s 15. First, the tribunal has to identify whether the claimant was treated unfavourably and by whom. It then has to determine what caused that treatment, focusing on the reason in the mind of the alleged discriminator, possibly requiring examination of the conscious or unconscious thought processes of that person, but keeping in mind that the actual motive of the alleged discriminator in acting as he or she did is irrelevant.[260]The tribunal must then determine whether the reason was ‘something arising in consequence of the claimant’s disability’, which could describe a range of causal links. This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.[261]An employer cannot be liable for discrimination arising from disability under the EqA 2010 unless it knew (or should have known) about the claimant’s disability. Section 15(2) states that there will be no discrimination arising from disability “if A shows that A did not know and could not reasonably have been expected to know, that B had the disability”.[262]I considered A Ltd v Z UKEAT/0273/18, in which the EAT held that the tribunal had erred because it should have asked what A might reasonably have been expected to know had it made enquiries. Further, the EHRC employment code makes it clear that knowledge is imputed to the employer if the employers agent or employee, including an occupational health advisor, knows of the disability.[263]Any allegation of discrimination arising from disability will only succeed if the employer (or other person against whom the allegation is made) is unable to show that the unfavourable treatment to which the claimant has been subjected is a proportionate means of achieving a legitimate aim. It is the unfavourable treatment that must be justified.[264]The legitimate aim can encompass the real needs of the business, the measures taken must correspond to the real needs of the business and must be appropriate to the objective to be achieved and be reasonably necessary for that purpose and that this is a matter for the judgement of the tribunal, based upon a fair Case No: 2302187/2023 &2302188/2023 and detailed analysis of the working practices and business considerations involved. I was directed to Hensman v Ministry of Defence UKEAT/0067/14). It is also permissible to consider if a lesser measure would have achieved the employer’s aim Naeem v Secretary of State for Justice [2017] UKSC 27. S20/21EQA Reasonable adjustments[265]In general, the duty to make reasonable adjustments requires the taking of “such steps as it is reasonable to have to take” to avoid a disabled person being put at a “substantial disadvantage” which includes a “provision, criterion or practice”.[266]The tribunal must consider the PCP applied by or on behalf of the employer, the identity of non-disabled comparators (where appropriate), and the nature and extent of the substantial disadvantage suffered by the claimant.[267]The duty is ‘reactive’, it requires there to be an identified applicant or employee, and for the employer to know, or be reasonably expected to know, that that person is disabled, and that they are likely to be at the substantial disadvantage without the adjustment. In Smith v Churchills Stairlifts plc 2006 ICR 524, CA, the Court of Appeal confirmed that the test of reasonableness is an objective one and it is ultimately the employment tribunal’s view of what is reasonable that matters.[268]I was referred to 2 authorities as follows. “In Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265, the Court of Appeal found that it would not have been reasonable for the employer to make the following adjustments : Disregard a period of disability-related absence under its attendance management policy, so that a written warning would not be issued. The ECJ in Ruiz Conejero v Ferroser Servicios Auxiliares SA (C-270/16) EU:C:2018:17,decided that the thresholds placed disabled employees at a disadvantage because they were more likely to have absences than a non- disabled person. However, the provisions pursued a potentially legitimate aim: combatting absenteeism.” Time limits Equality Act 2010 (“EA”)[269]Section 123 EA provides: (1) Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … Case No: 2302187/2023 &2302188/2023 (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.[270]The key question in determining whether there was conduct extending over a period is whether there was an ongoing situation or continuing state of affairs which amounted to discrimination (Hendricks v Metropolitan Police Commissioner [2002] IRLR 96). The claimant bears the burden of proving, by direct evidence or inference, that numerous alleged incidents of discrimination are linked to each other so as to amount to a continuing discriminatory state of affairs.[271]In Jones v Secretary of State for Health and Social Care [2024] EAT 2 the EAT held reviewed the authorities relating to just and equitable extensions and noted that there was a ‘common practice’ among those seeking to argue that time limits should not be extended to rely on the comments of Lord Justice Auld in Bexley Community Centre (t/a Leisure Link) v Robertson 2003 IRLR 434, CA that time limits in the employment tribunal are ‘exercised strictly’ and that a decision to extend time is the ‘exception rather than the rule’, as if they were principles of law. The EAT stated that the practice of relying on these comments out of context should cease. What tribunals should regard as the relevant legal principles are that employment tribunals have a wide discretion to extend time on just and equitable grounds and that appellate courts should be slow to interfere.[272]The relevant factors will vary from case to case. The Court of Appeal in Abertawe Bro Morgannyg University Local Health Board v Morgan [2018] IRLR 1050 observed that the wording of section 120(1)(b) “such other period as the employment tribunal whether to extend time and “factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reason for, the delay and (b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claims while matters were fresh).”[273]Tribunals are encouraged to “assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular… ‘The length of, and the reasons for, the delay’ ” (Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 22). Whistleblowing[274]The Public Interest Disclosure Act 1998 (PIDA) came into force on 2 July 1999, inserting sections 43A to 43L and 103A into the ERA 1996 providing protection for workers reporting malpractices by their employers or third parties against victimisation or dismissal.[275]Whether a whistle-blower qualifies for protection depends on satisfying the following tests: Have they made a qualifying disclosure? There are a number of Case No: 2302187/2023 &2302188/2023 requirements for a qualifying disclosure (section 43B, ERA 1996):[276]. The worker must make a disclosure of information. Merely gathering evidence or threatening to make a disclosure is not sufficient. The information must relate to one of six types of "relevant failure". The worker must have a reasonable belief that the information tends to show one of the relevant failures. Further, the worker must have a reasonable belief that the disclosure is in the public interest.[277]Disclosure must also qualify as a protected disclosure (sections 43C-43H, ERA 1996; which broadly depends on the identity of the person to whom disclosure is made. PIDA encourages disclosure to the worker's employer (internal disclosure) as the primary method of whistleblowing. Disclosure to third parties (external disclosure) may be protected if more stringent conditions are met.[278]The public interest test was considered by the Court of Appeal in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed. Upholding an employment tribunal's decision that the disclosure was a qualifying disclosure, the court gave the following guidance. The tribunal has to determine whether the worker subjectively believed at the time that the disclosure was in the public interest; and if so, whether that belief was objectively reasonable. There might be more than one reasonable view as to whether a particular disclosure was in the public interest, and the tribunal should not substitute its own view.[279]In assessing the reasonableness of the worker's belief, the Tribunal is not restricted to reasons that were in the mind of the worker at the time. The worker's reasons are not of the essence, although the lack of any credible reason might cast doubt on whether the belief was genuine. However, since reasonableness is judged objectively, it is open to a tribunal to find that a worker's belief was reasonable on grounds which the worker did not have in mind at the time.[280]Belief in the public interest need not be the predominant motive for making the disclosure or even form part of the worker's motivation. The statute uses the phrase "in the belief…" which is not same as "motivated by the belief…".[281]In Ibrahim v HCA International Ltd [2019] EWCA Civ 2007, the Court of Appeal held that a Claimant alleging whistleblowing must have the opportunity to give evidence directly on the point of whether they had a subjective belief that they were acting in the public interest at the time of making a disclosure They can then be cross-examined and a tribunal will be able to evaluate the evidence and make findings as to subjective belief and the reasonableness of that belief.[282]I was referred to Blackbay Ventures Ltd (t/a Chemistree) v Gahir UKEAT/0449/12, in the following terms “ the EAT suggested that employment tribunals should take the following approach when considering detriment claims: Each disclosure should be identified by reference to date and content. The alleged failure or likely failure to comply with a legal obligation, or matter giving rise to the health and safety of an individual having been or likelyto be endangered or as the case may be, should be identified. The basis upon which the disclosure is said to be protected and qualifying should Case No: 2302187/2023 &2302188/2023 be addressed. Each failure or likely failure should be separately identified. Where it is alleged that the claimant has suffered a detriment short of dismissal, it is necessary to identify the detriment in question and, where relevant, the date of the act or deliberate failure to act relied upon by the claimant. This is particularly important in the case of deliberate failures to act because, unless the date of a deliberate failure to act can be ascertained by direct evidence, the failure of the respondent to act is deemed to take place when the period expired within which it might reasonably have been expected to do that act.”[283]A complaint that a worker has been subjected to a detriment for making a protected disclosure must be presented to an employment tribunal before the end of the period of three months, beginning with the date of the act or failure to act to which the complaint relates, or, where the act or failure to act is part of a series of similar acts, the last such act or failure to act. Thus, the employment tribunal will need to consider the point in time at which the alleged detriment is said to have occurred, not the point in time at which the disclosure or disclosures relied upon were made.[284]I was referred to Unilever UK plc v Hickinson and another UKEAT/0192/09) The important practical point made by this case is the identification of the act or failure to act (or series of similar acts or failures) that a worker is relying on as having caused the detriment. The time limit for presenting a claim runs from the act or failure (or the last in the series).[285]I considered the current case law on whether or not one can impute the knowledge and motivations of another person to the decision-maker for a claim under section 47B. The Supreme Court in Royal Mail Group Ltd v Jhuti 2020 ICR 731 extended the scope of whistleblower protection for unfair dismissal ruling that an employee can succeed in section 103A claim even when the person who takes a decision to dismiss does not know about the protected disclosure. This may apply where the malign influence behind the treatment of the claimant is not the dismissing manager (who is unaware of the true facts) but another manager who has engineered that treatment in response to the claimant's disclosures.[286]In 2 cases the EAT has decided that this is not applicable and that the focus in a detriment case remains solely on the dismisser. In Malik v Centros Securities plc UKEAT/0100/17 the EAT held that this was because the two sections vary in their wording, especially since an amendment in 2013 added personal liability on the malign influencer under s 43B, but not under s 103A. The key point was that under s 103A only 'the employer' can be liable, whereas under s 43B both the employer and a guilty fellow employee can be, obviating the need for the Jhuti extension. In William v Lewisham & Greenwich NHS Trust [2024] EAT 58,[2024] ICR 1065, the ET had followed and applied Malik and the EAT held that it had been right to do so on the same basis that there is no need for a Jhuti extension. On this basis a claim that a decision maker was induced to act because of false allegations made by another manager would not succeed as a detriment claim. Ony the motivation of the ultimate decision maker counts.[287]However, in first Great Western Ltd V Moussa 2024 IR LR 697 a different approach was taken. In William the EAT had used the insertion of vicarious liability Case No: 2302187/2023 &2302188/2023 in sub-ss (1A)–(1E) to justify going back to the purist approach of looking only at the motivation of the decision-maker. Here, the judgment in effect reverses that argument by holding that vicarious liability was added, but as a secondary ground; it did not remove 'direct liability' under sub-s (1) The end result was that:''A cause of action under section 47B(1) can in principle exist without an individual being motivated by a relevant protected disclosure.''[288]On the facts of this case the employment tribunal found that the employer had unfairly suspended Mr Moussa and conducted an inadequate biased investigation because of his past whistleblowing. It was not a case of manipulation of an innocent decision-maker. There was no conspiracy but there was instead an underlying negative attitude towards Mr Moussa because he had blown the whistle in the past. While the employer had argued they were not liable for whistleblowing detriment is the decision-maker who was suspended Mr Moussa had not personally known about his whistleblowing disclosures, the ET dismissed that appeal. They found that there was a collective memory at the organisation which was prejudiced against Mr Moussa which permeated the approach of the HR department. Some knowledge of the substance the protected disclosure was therefore required, even if only as part of the collective memory and not the actual personal knowledge of the decision- maker. Unfair Dismissal s 98(1) ERA[289]Once the employer has established a potentially fair reason for the dismissal under section 98(1) of ERA 1996 the tribunal must then decide if the employer acted reasonably in dismissing the employee for that reason.[290]Section 98(4) of ERA 1996 provides that, where an employer can show a potentially fair reason for dismissal: "... the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.[291]Where misconduct is said to be the reason for dismissal then, as set out in British Home Stores Ltd v Burchell 1980 ICR 303 EAT, the respondent must show that it believed the claimant guilty of misconduct, it had in mind reasonable grounds upon which to sustain that belief, and at the stage at which the belief was formed on those grounds, it carried out as much investigation into the matter was reasonable in the circumstances. I was directed to Farrant v Woodroffe School UKEAT/1117/9. For the purposes of establishing the reason for dismissal, the employer only needs to have a genuine belief in the employee’s misconduct; the belief does not have to be correct or justified.[292]It is not enough that the employer has a reason that is capable of justifying dismissal. The tribunal must also be satisfied that, in all of the circumstances, the employer was actually justified in dismissing for that reason. It must consider whether in all the circumstances it was reasonable for the employer to treat that Case No: 2302187/2023 &2302188/2023 reason as sufficient reason to dismiss. This means that the question for a tribunal will be whether the conduct in its totality amounted to a sufficient reason for dismissal, not whether the individual acts of misconduct individually ,or cumulatively, amounted to gross misconduct (Governing Body of Beardwood Humanities College v Ham UKEAT/0379/13).[293]By the case of Sainsbury's Supermarkets Ltd v Hitt 2003 IRLR 23.the Court of Appeal decided that the subjective standards of a reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed. The tribunal is not required to carry out any further investigations and must be careful not to substitute its own standards of what was an adequate investigation to the standard that could be objectively expected of a reasonable employer.[294]When assessing whether the respondent adopted a reasonable procedure and was reasonable in treating the reason as sufficient to dismiss, the tribunal must use the range of reasonable responses test. However, the question is not whether the tribunal would have believed the employee to be guilty based on that material, but whether the employer acted reasonably in forming that belief. In Foley v The Post Office [2000] IRLR 827an ET should not hold its own view of what it would have done had it been the employer when considering the reasonableness of a dismissal under s.98 ERA 1996. The band of reasonable responses test should still continue to be applied.[295]On the issue of procedural fairness Counsel for the respondent submitted as follows. “In order to act reasonably, an employer must follow a fair procedure when dismissing an employee and, this includes following the ACAS Code. Where a dismissal is procedurally unfair, the employer cannot invoke a “no difference rule” to establish that the dismissal is fair, in effect arguing that the dismissal should be regarded as fair because it would have made no difference to the outcome. This means that procedurally unfair dismissals will be unfair (this rule is subject to a limited exception, where the procedure would have been utterly futile) Polkey v AE Dayton Services Ltd [1987] IRLR 503 (HL). When considering whether a procedural flaw affects fairness, it is necessary to consider the flaw in context, in the light of the whole facts and circumstances, and ask whether or not the employee was unduly prejudiced. Procedural issues do not sit “in a vacuum” and should be considered together with the reason for dismissal, in assessing whether, in all the circumstances, the employer acted reasonably in treating the reason as a sufficient reason for dismissal (Sharkey v Lloyds Bank plc [2015] UKEAT/0005/15).” Contributory conduct[296]The basic award may be reduced where the tribunal ‘considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such as it would be just and equitable to reduce or reduce further the amount of the award to any extent...’. In respect of other awards ‘where the tribunal finds that the [act] was to any extent caused or contributed to by any action of the complainant, [the tribunal] shall reduce the amount of the compensatory award by such proportion as it considers just and equitable...’. Case No: 2302187/2023 &2302188/2023[297]For the basic award (but not other awards), conduct which was not known to the employer and cannot have caused or contributed to the dismissal can still be taken into account.[298]To fall into this category, the claimant’s conduct must be ‘culpable or blameworthy’. Save in respect of the basic award, such conduct must cause or contribute to the claimant’s dismissal, rather than its fairness or unfairness. Such conduct need not amount to gross misconduct. Conclusions[299]Having set out the findings of fact, I now apply the law as I have also set it out to those facts identified in the issues that I am asked to determine. Time limits Discrimination claims (time limits issue 1.1 &1.2-1.2.4.2)[300]The issues list identifies that any complaint about something that happened before 22 December 2022 (in the case of Mr. Abbott) or 25 December 2022 (in the case of Mr. Everett) may not have been brought in time. This applies to issues 5.1.1, 5.1.2 and 6, the disability arising from discrimination and a complaint of failure to make reasonable adjustments.[301]There are three effective matters complained of.5.1.1 relates to reduction of their sick pay. The second issue5.1.2 and issue 6 overlap. 5.1.2 relates to Mr Threlkeld deciding on 1 December to recommend the claimant’s case continue to disciplinary without their full involvement in the investigatory process. This is in essence because they were not able to attend face to face meetings and they were given no opportunity to provide written information. One of the complaints that is made in relation to the reasonable adjustments claim at6.3.1 is that the claimants found it difficult or impossible to attend in person/face-to-face meetings. The second matter raised at6.3.2 is that the claimants found it difficult or impossible to comply with deadlines.[302]While the dates are not set out as they relate to failure to make reasonable adjustments, on my findings of fact they were not required to attend in person/face- to-face meetings once Mr Hassan took over. As a matter of fact, any PCP requiring in-person meetings ended once Mr Threlkeld handed matters over from 1 December 2022. The complaint as it relates to deadlines, on the findings of fact also ends with Mr Threlkeld’s involvement. Mr Hassan provides extensions as does Mrs Walsh. I conclude therefore that the date of the last act for issues 5.1.2 and 6 is 1 December 2022 and so all are potentially out of time.[303]The claimants have effectively withdrawn their claim that the reduction from full pay to half pay with effect from 15 August 2022 was discrimination arising from disability. I’m not therefore considering any time limit point in relation to this claim.[304]The relevant dates for the three allegations I must consider is therefore 1December 2022.It is submitted by the respondent that none of these are continuing acts. For these to be a continuing act there must be an ongoing situation or continuing state of affairs which amounts to discrimination. I have found that Case No: 2302187/2023 &2302188/2023 there was not. One of course can see the decision by Mr Threlkeld as being part of a chain that leads to the ultimate dismissal but the allegation is the failure to involve them fully before proceeding to disciplinary stage. I conclude that is a one-off event.[305]As I have found that the practice stopped after 1 December I conclude that in refusing to extend deadlines and refusing to allow written questions, Mr Threlkeld was failing to do something. That is treated as occurring when the person in question decided on it. It is not possible to determine that date but it must be on or before 1 December 2022. The allegations at issue 5.1.2 and 6 are therefore out of time.[306]The respondent submits that the claimant had not provided any reasons why they failed to submit the claims within for the time limit. They had a trade union representative assisting them throughout the suspension disciplinary process. Once accepted they were on long-term sick until August 2022 there was no medical evidence presented to suggest they were impaired from submitting timely employment tribunal claims. Prior to doing so they had of course provided very lengthy responses both to Mr Hassan and in the case of Mr Everett to Mrs Walsh.[307]As I have set out above, there is a wide discretion to extend time on just and equitable grounds. The relevant factors will include the length of and any reason for the delay. In this case no reason was given by the claimants for what is a very lengthy delay. I should also consider whether the delay has prejudiced the respondent. The respondent submitted that their witness testimony had been affected by the length of this delay.[308]Considering all factors in the particular case I am particularly taking into account the fact that the claimants were represented throughout and were able to produce lengthy and detailed responses from the point of their suspension, despite the fact that they were off sick. In all the circumstances I do not consider it be just and equitable to extend the time limits. The tribunal has no jurisdiction to hear the claims at issues 5.1.2 and 6. Whistleblowing complaints (time limits issue 1.1&1.3)[309]In considering this issue on time limits at this stage I am making an assumption that the claimant did make qualifying protected disclosures. I will address that issue subsequently. I have found that verbal disclosures were made between March 2020 and were made continuously until the speak up allegation was raised. I have found that the speak up allegation was made in the same terms as the verbal and written disclosures made previously. The contact with speak up was first made on 9 April 2022.[310]The relevant dates are not, however, the date on which the claimant blew the whistle but the date on which the alleged detriments are said to have occurred. Mr Abbott, who was the only claimant bringing a whistleblowing claim, raises five matters he says amount to detriment. Based on my findings of fact I have concluded that the following dates are the dates of these actions(i) Causing Mr Abbott to be investigating the conduct occurred between 8 and 17 January 2022. Case No: 2302187/2023 &2302188/2023(ii) Failing to conduct his case impartially, on the claimant’s case, continues up to and including the appeal which concluded on the 6 November 2023(iii) Mrs Smith was informed of information regarding Mr Abbott’s whistleblowing allegations on 21 March 2020.(iv) The three grievances that Mr Abbott said were not properly addressed were submitted on 21 December 2022. Mr McHardy responds on 23 December 2022. At that point I have found he tells Mr Abbott that only one part of his grievance will be dealt with.(v) Mr Abbott says that speak up failed to address his whistleblowing complaints. I have found that the report on his whistleblowing was concluded by Mrs Knight Smith in June or July 2022.[311]I conclude that the failure to conduct the conduct case impartially up to and including the appeal to the extent that it occurs during the initial investigation, Mr Threlkeld’s investigation, Mr Hassan’s conduct of the case and Mrs Walsh’s conduct of the case are ongoing acts. The date of the last act falls well outside the cut-off point of 22 December 2022 therefore I find that this claim is made in time. The failure to properly consider three grievances arises after 22 December 2022. This act is also within time.[312]The remainder of the complaints, causing Mr Abbott be investigated for conduct, informing Mrs Smith of confidential information, and speak up failing to address his whistleblowing complaints are all on their face out of time unless they are continuing acts. I conclude that the first of these, causing Mr Abbott be investigated for conduct is part of an ongoing situation or continuing state of affairs. This ends with the appeal and I therefore find that this complaint is in time.[313]It is arguable that there is a connection between informing Mrs Smith of confidential information during the whistleblowing investigation process and the allegation that speak up failed to address the whistleblowing complaints. I conclude that this is conduct extending over a period as a result of an ongoing situation or continuing state of affairs. However, that brings the date of the last act to June or July 2022. That is still out of time so even if issue 8.1 iii and 8.1 v are continuous acts. they end at the latest in July 2022. They are brought considerably out of time.[314]Applying the same consideration to the question of whether time should be extended I have taken into account that the claimants have offered no explanation as to why they did not bring the claims earlier. Notwithstanding their state of health they were able to put together detailed comprehensive information at great length when asked to do so during the investigation process. They were advised by their trade union representative throughout. The respondent would make the same submission that its witnesses were prejudiced by the delay. Again, looking at matters in the round and take into account that the claimants did have professional advice I do not think it be just and equitable to extend the three months.[315]This means that the detriment claims relating to informing Mrs Smith of confidential information, and speak up failing to address the whistleblowing complaints are both out of time and I have no jurisdiction to hear them. The only Case No: 2302187/2023 &2302188/2023 detriments that I can therefore consider are causing him to be investigated for conduct ,what Mr Abbott says was failure to conduct his case impartially and failure to properly consider the 3 grievances he submitted. Unfair dismissal (issue 2)[316]I conclude that the reason for dismissal was gross misconduct. While I have made a finding of fact that Mr Hassan, the decision-maker, had a genuine belief that the claimant had committed an act of misconduct, I find that he had no reasonable grounds for that belief because at the time that belief was formed the respondent had not carried out a reasonable investigation and had otherwise acted in a procedurally unfair manner.[317]I have found that the initial security investigation and the investigation by Mr Threlkeld were not fair or reasonable in that the respondent relied on evidence from a source that was not disclosed and which was later accepted by the respondent as being incorrect, namely Mrs Smith. The claimants were not sent voluminous documentation the respondent said it had, not because respondent felt they were not entitled to it, but because Mr Threlkeld thought it had already been sent, which it had not. The claimants were also denied an opportunity to put their side of the case in writing, despite occupational health advice this should happen, again because Mr Threlkeld did not really think that was appropriate. I find that he was acting in a procedurally unfair manner which adversely impacted the claimants.[318]Mr Hassan’s investigation was better because the claimants were given an opportunity to provide extensive evidence. Again, however, I find that Mr Hassan did not carry out a sufficiently full investigation or act in a fair manner because Mrs Smith’s information was relied on and her further evidence was not shared with the claimants. I find that Mr Hassan had a genuine belief that the claimants had committed the act of misconduct that they were accused of, however part of his decision was that the hours were not authorised. The respondent itself reached a different conclusion following proper investigation during the appeal. I find that Mr Hassan did not base his decision on a reasonable investigation and the dismissal would therefore be unfair.[319]This is one of those cases when an appeal was carried out by way of a complete rehearing. I have found that Mrs Walsh then did an extremely thorough job to shore up all the problems in what would have been an unfair dismissal. I conclude that Mrs Walsh’s had a genuine belief that the claimants had committed acts of misconduct in that they had taken money for hours they had not worked.[320]While Mrs Walsh did not uphold the dismissal decision on exactly the same basis, the original allegation did include the point that the claimants had been paid for hours they had not worked. I find that they did understand that this was being put to them and that they had a full opportunity to refute this point. Mrs Walsh was entitled to form her own view on the point. Her investigation needed only to be reasonable and not an exhaustive pursuit of every avenue the claimant suggested. I have found that it was so.[321]I’ve also found that while the claimants were not aware of the code of conduct, they were both aware and understood that it was inappropriate to take money for Case No: 2302187/2023 &2302188/2023 hours not worked. It was their case that they had worked the hours.[322]I am conscious that I must not substitute my view for that of the decision-maker either in terms of a belief in guilt, or whether I would have carried out any further investigation. On that basis I have found that Mrs Walsh reached a decision to uphold the dismissal after carrying out a reasonable investigation and that she adopted a fair procedure. She carried out appropriate interviews, she considered appropriate documentation and she gave the claimant’s full opportunity to take part in the proceeding. She took a decision having investigated relevant evidence. I conclude that she did sufficient within the reasonable range of responses to investigate and to form her view.[323]Mrs Walsh concluded that the appropriate penalty was dismissal. This is within the reasonable range of responses given that this is a gross misconduct offence. I conclude that the appeal sufficiently meets the requirements for a fair dismissal. This claim does not succeed. Disability ( issue 3 )[324]The respondent has conceded that Mr Abbott was a disabled person from 25 February 2023 onwards and Mr Everett from the 28 February 2023 onwards. It follows that they accept that disability is the mental impairment of anxiety and depression. While the issues list sets out a whole series of questions related to disability (3.1.12 to 3.1.5.2) given the respondent’s concession that both individuals were disabled after a certain date, which is 12 months from diagnosis, I conclude that there is no dispute that the impairment had a substantial adverse effect on their ability to carry out day-to-day activities.[325]Indeed the respondent confirmed that the dispute is limited to issue 3.1.5, were the effects of the impairment long-term and from what date one could reasonably determine that. I must consider from what date the substantial adverse effect was likely to last at least 12 months. The word likely means something that is a real possibility. Not something that is probable or more likely than not.[326]I have made findings of fact that it was a real possibility Mr Abbott’s condition was likely to last for more than 12 months at the point of diagnosis. I therefore conclude that Mr Abbott was disabled within the meaning of the Equality Act from 25 February 2022.[327]I have made findings of fact that the position is different for Mr Everett. He does not have the same medical history as Mr Abbott. I have found that there was no reason to believe that there was a real possibility that Mr Everett symptoms would be long-term at the point of diagnosis. As noted, occupational health did not conclude that the condition was like to last 12 months when Mr Everett was in discussions with them on 14 June 2022. In the absence of any medical evidence after 14 June 2022 to indicate that Mr Everett condition was worsening, I have no evidence on which I can determine the date when it was probable is symptoms were likely to last for more than 12 months. I therefore concluded that this was only the position after they had in fact lasted 12 months. That is from the anniversary of was accepted as the diagnosis namely the 28 February 2023. Case No: 2302187/2023 &2302188/2023[328]The date of knowledge of disability is also relevant. The respondent submitted that knowledge only arose on the 12 month anniversary of diagnosis. It was submitted that the occupational health report about Mr Abbott on 15 June 2022 did not amount to the organisation having knowledge that he was disabled as an occupational health report is not one that can determine the legal status of disability. I conclude that the occupational health report is one that the organisation had knowledge of. It offered an unqualified statement and I conclude that the respondent had knowledge of Mr Abbott’s disability from that date, 15 June 2022.[329]The respondent concedes it had knowledge of Mr Everett’s disability from 28 February 2023 Direct disability discrimination (issue 4)[330]This complaint relates to Mr Hassan’s decision to dismiss the claimants on 18 March 2023. Based on my findings in relation to disability status, I found that both claimants were disabled within the meaning of the Equality Act by this date and the respondent had knowledge of this. I must consider, therefore, whether the claimants were treated less favourably because of this protected characteristic. I must consider how others would have been treated.[331]I have considered the position of a hypothetical comparator who was in circumstances with no material difference to the claimants. I have found that Mr Hassan dismissed the individuals because he had a genuine belief, albeit formed without a reasonable investigation or fair procedure, that they had carried out acts of gross misconduct. I note the respondents’ submissions that Mrs Walsh upholds the decision to dismiss, albeit for different reasons, and yet this reaffirmation of the dismissal is not said to be because of their disabilities. It seems inherently illogical that one individual dismissed because of this and yet the appeal chair decision, which came to the same ultimate conclusion, was not said to be because of the claimants’ protected characteristics.[332]I conclude that Mr Hassan would have dismissed any individual that he believed had committed these acts of gross misconduct. Any individual, whose circumstances were not materially different to the claimants would have been treated in the same way. I conclude that the dismissal was not related to the disability and this claim does not succeed. Discrimination arising from disability (issue 5)[333]There are four matters which are said to be unfavourable treatment arising from the claimants’ sickness absence and inability to fully participate in investigative disciplinary procedures. The first of these has effectively been withdrawn by the claimants.[334]The second is Mr Threlkeld deciding on 1 December 2022 to recommend their cases proceed to the disciplinary stage without the claimants full involvement in the investigation process. I conclude that this is unfavourable treatment. I have found that this treatment was because of the claimants’ sickness absence in that they were unable to attend face-to-face meeting and Mr Threlkeld was not prepared to accept occupational health advice to do things differently. I do find that this Case No: 2302187/2023 &2302188/2023 unfavourable treatment did therefore arise from disability. At the relevant date Mr Abbott is disabled within the meaning of the act but Mr Everett is not. This means that this claim could succeed for Mr Abbott, but not for Mr Everett. However, I have also found that this claim was brought out of time and I have no jurisdiction to deal with it. It therefore cannot succeed on that basis.[335]The next matter is Mr Hassan deciding to proceed to determine the disciplinary the allegations without their full participation on 18 March. I have found that Mr Hassan did adopt the process of involving the claimants by giving them information and receiving information from them. As a matter of fact I do not find that they were therefore unable to fully participate. That claim does not succeed on that basis.[336]In terms of dismissal, I find that Mr Hassan had a genuine belief that the claimants had committed acts of gross misconduct. While that belief was not formed on the basis of a reasonable investigation I do not find that lack of investigation arose from the claimants’ absence or inability to fully participate. The problems arose with the lack of investigation and are not arising from the claimant’s disability. This claim does not succeed.[337]For the reasons set out above, none of the points raised at 5.1.1 to 5.1.4 succeed. Reasonable Adjustments (Equality Act 2010 sections 20 & 21) ( Issue 6 )[338]I conclude that the respondent did have a practice of conducting disciplinary investigations by means of in-person/face-to-face meetings. They also had a practice of imposing deadlines. There is no evidence that there was a practice of dismissing employees without their full participation.[339]I accept that the inability to attend a face-to-face meeting or comply with deadlines could put an individual at a disadvantage compared to an individual who was able to attend in person and meet deadlines. I also conclude that there is a greater likelihood of being dismissed in the context where individuals can only manage partial participation or are unable to participate.[340]Considering whether these PCPs put the claimants at a substantial disadvantage I conclude that they were placed at a substantial disadvantage in that Mr Threlkeld did not allow them to properly become involved in the proceedings and therefore the allegations against them passed to a more formal stage without their involvement. I found this occurred on 1 December 2022. I have also found that only Mr Abbott was disabled at that point and the respondent had knowledge of his disability by that date. I conclude that the respondent knew, or could reasonably have been expected to know, that Mr Abbott would like to be placed at this disadvantage.[341]The claimant suggested a number of steps that could have been taken to avoid the disadvantage. This includes giving them the opportunity to engage in writing, giving them longer and more flexible deadlines and permitting their full participation. I find it was reasonable for the respondent to have taken these steps and that it did so in that both Mr Hassan and then Mrs Walsh allowed an appropriate alternative that is answering questions in writing and providing information that way. Both Case No: 2302187/2023 &2302188/2023 claimants were able to produce extremely lengthy and very detailed responses to the questions asked as well as a myriad of supporting documentation. I found that the disadvantage to the claimants of not being able to participate prior to the decision to refer the matter for disciplinary hearing was removed and they were able to properly participate by the very thorough appeal procedure.[342]I conclude that the respondent did take steps to avoid the disadvantage to Mr Abbott as a disabled employee after 1 December 2022. I have found that a claim relating the events of 1 December 2022 is out of time. The claim for failure to make reasonable adjustments does not succeed for both of these reasons. Protected disclosure (issue 7)[343]I have found that Mr Abbott did make disclosures on many occasions between March 2020 and March 2022 in emails and verbally to Mrs Smith and to the whistleblowing department. In submissions the respondent put forward its position that emails about staff being paid for more hours than they worked was in fact a local practice and not unlawful. It should not therefore be considered as protected disclosures. Emails regarding overtime rates do not amount to protected disclosures as they did not disclose potential illegal behaviour. The same submission is made in respect of agency worker costs being out of control. It was accepted that emails concerning staff working excessive hours suggest unlawful activity. Public interest is disputed by the respondent for all of these matters.[344]On the balance of probabilities I have found that it is likely that the claimant raised these complaints both verbally and in email in the same way to Mrs Smith as he did to the speak up helpline. In addition to finding specific examples of whistleblowing on 8t,22 September, 18t and 25 October, 9, 10 and 11 November 2021 and 7 February 2022. I find it likely that there were many other dates in this period when he did the same. This was well before the suspension. Mr Abbott raised the same matters again after suspension at least from 25 April 2022.On 16 May 2022 Mr Abbott again followed up with speak up and added a new matter, management authorising disposal destruction of customers mail. It is accepted by the respondent as potentially a criminal offence.[345]I conclude that Mr Abbott did therefore disclose information that explained that there was potential wrongdoing. The respondent suggests that he was motivated by self-interest rather than public interest in making the disclosures. As I have found that his submission to speak up was (other than the complaint of destruction of mail) merely formalising the matters he had already been raising, and he had done this well before there was any question of disciplinary action, I conclude that Mr Abbott subjectively believed that at the time disclosure was in the public interest. He was reporting matters that amounted to potential fraud as well as to breaches of the working time regulations.[346]I’ve also found that while he had mixed motives for the timing of when he raised the destruction of mail point, on balance he was still acting on a subjective belief of that it was in the public interest and I conclude on an objective basis it was.[347]I conclude that he believed the disclosure of the information was in the public interest and I find that information about malfeasance in terms of pay rates, breach Case No: 2302187/2023 &2302188/2023 of the working time regulations and the potential criminal offence in relation to the destruction of mail are matters of public interest. I have found that Mr Abbott had a reasonable belief that these matters had occurred.[348]I’ve also found that Mrs Smith knew or ought to have known that the allegations of fraud and breach of working Time regulations made to her in emails and conversations were in effect whistleblowing and she is certainly aware that this was the case once the allegations are made to speak up. I’ve also found that her attitude towards Mr Abbott was influenced negatively by these matters. Detriment (Employment Rights Act 1996 section 48) ( Issue 8)[349]Five matters are said to be detriment that flows from Mr Abbott’s blowing the whistle. I have found that 2 of these are raised out of time. Nonetheless I have set out the conclusions I would have reached on all five matters.[350]8.1(i) (continuing act ). I have set out in detail the findings of fact as to what caused Mr Abbott to be investigated for conduct. I have found that Mrs Smith was not involved in this. Those who were responsible for this initiating had no knowledge of any of the disclosures. It was not done because Mr Abbott had made any protected disclosures. Mrs Smith had no influence on this. This aspect of his case cannot succeed as a matter of fact.[351]8.1(ii) ( in time – continuing act). I have found there was no general conspiracy among management because of any whistleblowing.. The decision-makers in the conduct case Mr Threlkeld, Mr Hassan and Mrs Walsh were not influenced themselves by direct knowledge of whistleblowing. The question then is whether Mrs Smith was able to influence the conduct of the case so it was not impartial. While I have found that Mrs Smith was influential in the investigation of the conduct case I’ve also found that the errors and failure to properly investigate were not down to her. It is the failure of Mr Threlkeld and Mr Hassan to carry out further investigations that leads to the dismissal. There is no evidence that Mrs Smith influenced them not to do so.[352]In any event, as I have found that the decision-makers did not themselves have any firsthand knowledge of whistleblowing, it is questionable as a matter of law whether, had my finding of fact been different and I had found Mrs Smith was a line manager pulling the strings of the innocent decision-maker, a detriment claim could in any event succeed. As I have set out there are two different employment appeal tribunal decisions on this. Based on my finding of facts I do not have to determine the legal issue. Where I to do so I would on these facts prefer the decision in Great Western as there is no management conspiracy or memory of conspiracy in this case.[353]8.1(iii) ( out of time ). I have found that the respondent did inform Mrs Smith about the claimant’s whistleblowing as part of the investigation into the allegations. I have found that this was done by Mrs Knight Smith. It was part of her standard procedure in investigation whistleblowing. The claimant had been asked for and had given consent. There was no other practicable way for the claim to be investigated. I do not find that this amounts to a detriment, nor is it done on the ground that Mr Abbott had made a protected disclosure. Case No: 2302187/2023 &2302188/2023[354]8.1(iv)( in time ). I have found that Mr Abbott did indeed raise three grievances. I have found that the respondent did not lodge these on its system but that Mr Abbott was told what was to happen to them. Two were regarded as related to other matters, that is the whistleblowing investigation and the conduct investigation and therefore would not be taken as separate points. The third was investigated as it related to the sick pay. The manager who it is said decided not to properly investigate these grievances was a cause or notice, by the very nature of the grievances, that protected disclosures had been made.[355]I have made a finding of fact that the reason he did not progress to these grievances was because he felt it was inappropriate to do so, not because of the whistleblowing. I conclude that he was not motivated by the protected disclosures. I make this finding particularly, because one of the matters was investigated. It seems to me is a matter of logic that if the respondent was not intending to deal with the grievances that it would have dealt with none of them.[356]8.1(v) (out of time). I have found Mrs Knight Smith’s report to be based on little investigation and to have accepted Mrs Smith’s evidence on an un challenged basis and I have also found Mrs Smith’s account of one point to be wrong. Nonetheless I accept that what Mrs Knight Smith did was standard procedure . I have found no evidence that she was directly influenced by the claimant’s disclosures, or that she was manipulated by Mrs Smith to limit her investigation. If I am wrong on that the claim would still fail, applying Great Western, as only the motive of the decision maker is relevant to a detriment claim in the absence of a collective memory of prejudice permeating the organisation which I have not found.[357]To the extent any of the complaints are made in time, they do not succeed. Judge McLaren 24 February 2025 Sent to parties 15 April 2025 For the Tribunal Office P Wing Case No: 2302187/2023 &2302188/2023