Ms Y v Evolve Housing and Support: 2302593/2024
JUDGMENT
The Judgment of the Employment Tribunal is as follows:[1]The Tribunal does not have jurisdiction to hear the complaint of ordinary unfair dismissal, the claimant having less that two years’ continuous qualifying employment. The complaint is therefore dismissed.[2]The complaint of automatic unfair dismissal for making a protected disclosure is not well founded and is dismissed.REASONS
These are the written reasons that were requested by the Claimant on 24 January 2025. They are in a fuller form and contain background matters and set out the essential law in more detail. However, they do not significantly differ from those reasons given orally on 17 January 2024.Background
[1]By a claim form that was received by the Employment Tribunal on 29 February 2024 following a period of Early Conciliation between 9 and 27 February 2024, the Claimant brought complaints against the Respondent, her ex-employer, of ordinary unfair dismissal and automatic unfair dismissal because of whistle-blowing.[2]In its response, the Respondent denied the claim in its entirety and disputes that the Claimant has the necessary two years of qualifying employment to bring a complaint of ordinary unfair dismissal.The Issues
[3]At a preliminary hearing for case management held on 19 August 2024, Employment Judge (“EJ”) Lumley identified the complaints and issues to be determined at today’s hearing. Whilst EJ Lumley refers to section 47B of the Employment Rights Act 1996 (“ERA”) at paragraph 1.3 of the list of issues set out in the record of that hearing, this must clearly be a typing error, given that there is no complaint of whistleblowing detriment identified within the case summary, nothing has subsequently been raised as to such a complaint, and the list of issues firmly identifies the complaints as ordinary unfair dismissal and automatic unfair dismissal because of whistleblowing. Further, Page 1 of 12 this hearing has been listed before a Judge sitting alone. I concluded that this reference was on balance of probability intended to be to sections 43A or 103A ERA, as relevant to the identified complaint.[4]The list of issues are set out at pages 59 to 62 of the bundle of documents. The complaints are of ordinary unfair dismissal pursuant to section 98 ERA and automatic unfair dismissal pursuant to section 103A ERA. Documents and Evidence[5]I was provided with the following electronic documents: From the Claimanta. Her witness statement and two typed documents, one headed “Questions for Heather” (one of the Respondent’s witnesses, Mrs Hamilton-Warford) and the other “Questions for Heather at the hearing”;b. These had not been provided to the Respondent and I explained to the Claimant that if she wished me to read them then she needed to provide the Respondent’s representative, Mr Brown, with copies or retain them and read them out when she questioned Mrs Hamilton-Warford. The Claimant agreed to provide copies to Mr Brown. Mr Brown subsequently indicated that whilst he had considered the contents, given that they were cross examination questions, he had not disclosed them to his witnesses;c. In addition, the Claimant wished to rely on a relatively short CCTV clip which she believed was crucial to her case but Mr Brown believed was not relevant. In the event, I decided that I needed to view it myself in order to determine its relevance, if any, to the case before me;d. The Claimant also provided a witness statement from her ex-work colleague, David Oluwagbemi, which was contained within his email dated 28 February 2024. However, she explained that he was not coming to give evidence because he was in France. I explained to her that the absence of a witness at the hearing, and therefore the inability to question them, would affect the amount of weight that I would attach to his statement; From the Respondente. Witness statements from Betsy Biggs, the dismissing officer, Tom Markwell, the appeal officer and Heather Hamilton-Warford, the HR Manager; a bundle of documents consisting of 471 pages (which I will refer to as “B” followed by the relevant page number where necessary); an agreed cast list and an agreed initial reading list and chronology.[6]I heard evidence from the Claimant by way of her witness statement and in oral testimony. I heard evidence from Miss Biggs, Mr Markwell and Mrs Hamilton-Warford, on behalf of the Respondent by way of their witness statements and in oral testimony. Preliminary Matters Page 2 of 12Preliminary Matters
[7]Mr Brown made an application under rule 49 of the Employment Tribunal Procedural Rules 2024 for the name of one of the Respondent’s employees referred to in the documents before the Tribunal to be redacted and for a restricted reporting order preventing the publication of his name. The application is set out within a letter to the Tribunal from the Respondent’s solicitors dated 14 January 2025.[8]This application was made on the basis that this employee was the subject of a criminal complaint made by the Claimant to the Police with regard to an alleged sexual offence.[9]Mr Brown explained that this employee was referred to in the witness statements as “Employee A” and his name had been redacted from the documents within the bundle (although I could see that not all references had been redacted). Mr Brown’s view was that he did not believe that the issue relating to Employee A was relevant to the issues before the Tribunal, but in the event, he sought an order under rule 49 redacting the name of that individual and/or a restricted reporting order.[10]The Claimant objected to the rule 49 application, although the basis of her objection was not clear. Indeed, she appeared to be confusing the issue of anonymizing that person’s name with the relevance he had to her dismissal. Indeed, we did engage in a rather circular discussion about this matter in which I explained to her several times that I would consider the relevance he had to her dismissal but the issue of anonymity was a separate one arising from the nature of the criminal complaint that she made. I went on to explain to her that in as much as the Respondent was seeking to keep the name of Employee A confidential, this should apply to her as well as she is the alleged victim of a sexual offence. The Claimant’s initial response was that I should do what is best but subsequently she agreed that any order should extend to her as well.[11]After reading the witness statements and relevant documents, I decided that I would allow the evidence relating to Employee A to be admitted given that the Claimant was alleging that the Respondent was aware of those allegations and this in turn was pertinent to the disciplinary matters that she was dismissed for.[12]After considering the matter further, I decided to issue an order under rule 49 anonymising both the name of the Claimant, who is referred to as “Ms Y” given that she is the alleged victim of a sexual offence, and the employee, who is already referred to as “Employee A”, who is the alleged perpetrator of a sexual offence. This order has been sent out under separate cover. Conduct of the Hearing[13]This hearing was intended to be conducted by Cloud Video Platform (“CVP”). The Claimant had not appeared in the CVP hearing room by 10 am and my clerk’s telephone and email enquiries to her went unanswered. I had intended to start the hearing with or without the Claimant by 10.30 am. However, I asked my clerk to doublecheck whether the Claimant was actually in the Tribunal building. Indeed, it then became apparent that the Claimant Page 3 of 12 had arrived at the Tribunal in person and was sitting in the Claimants’ waiting room.[14]We subsequently started the hearing at 10.47 am. I asked the Claimant why she had turned up in person and she explained that she had told the EJ at the preliminary hearing that she had Internet difficulties and wanted the hearing to be in person. Mr Brown pointed out that in fact the hearing had only been converted to CVP yesterday afternoon. I confirmed that the Respondent was content for the Claimant to attend in person, whilst the rest of us appeared by CVP, and Mr Brown indicated that the Respondent had no objection.[15]I explained the nature of the complaints and the process that the Tribunal would follow, particularly for the benefit of the Claimant who was unrepresented. I made it clear that the issues that I had to determine were those set out in the list of issues at B59-62. I also made it clear that I would not depart from those issues unless there were exceptional circumstances that made it appropriate to do so.[16]The hearing then proceeded over the three days allotted during which I heard evidence and then on the afternoon of the third day, submissions from the parties. I deliberated, reached my decision and gave Judgement and oral reasons in the late afternoon.Findings of Fact
[17]I decided all the findings referred to below on the balance of probability, having considered all of the evidence given by the witnesses during the hearing, together with documents referred to by them. Any failure to mention any specific part of the evidence should not be taken as an indication that I failed to consider it.[18]I have only made those findings of fact necessary to determine the issues. It has not been necessary to determine every fact in dispute where it is not relevant to the issues between the parties.[19]The Claimant worked for the Respondent at a number of periods of time and in different roles, variously as a bank worker, on fixed term contracts and, latterly, from 15 February 2023, as an employee, in the role of Supported Housing Night Concierge.[20]The Respondent is a homelessness charity, providing housing and support to over 1000 people each year in the London Boroughs of Croydon, Kensington & Chelsea, Lambeth, Merton and Sutton.[21]The Respondent engages bank workers, typically when it is short-staffed, for example to cover holidays and sickness. Bank workers are not used to cover the roles of the permanent staff or if needed on a longer fixed term basis. Bank workers are engaged directly but in partnership with the Central Care, which co-ordinates bank worker shifts via its online portal. Bank workers are able to log their availability for shifts onto the portal and a manager may then book them for a shift or the workers can review the shifts that have been posted as available and put themselves on to cover. The workers can cancel Page 4 of 12 the shift after booking/being booked, although the Respondent normally asks for 72 hours’ notice. Bank workers are not required to make themselves available for a minimum number of hours or fixed hours and they can work for other organisations.[22]Between 12 December 2019 and 3 May 2020, the Claimant worked as a bank worker and I was referred to the Bank Worker Agreement at B64-71. This Agreement quite clearly sets up a casual work relationship in which there is no mutuality of obligations or formal notice requirements. There is no reason to go behind the Agreement on the basis that it might not reflect the true terms and conditions between the parties and in any event the Agreement was not challenged by the Claimant.[23]On 4 May 2020, the Claimant was then employed on a three month fixed term contract as a Support Worker at Alex house. This contract is at B71-79.[24]Following the termination of the fixed term contract, the Claimant returned to being a bank worker under the same Agreement as previously.[25]In October 2021 she was employed on a further fixed term contract at Ingram Court. This is at B80-86. The contract was due to end on 22 January 2022 but was extended to 7 May 2022 (as per the extension letter at B87).[26]The Claimant then returned to being a bank worker. The Respondent has provided a list of the dates on which the Claimant undertook bank work at B101. This indicates that the first shift undertaken was not until 23 June 2022 - there being a gap of seven weeks between the end of her fixed term contract and the first period of bank work. The document also indicates that the number of shifts worked varied from month-to-month, the Claimant’s hours were not fixed or regular and that her final shift was on 25 January 2023.[27]The Claimant challenged this document on the basis that she does not believe that these dates are accurate and further that the document has been manufactured for the Respondent’s own purposes. She offered no further basis for believing this or evidence in support. Further, despite having had the document several months before this hearing (it having been provided to her during the course of disclosure) and having had the bundle of documents for at least two weeks before this hearing, she had not previously raised the matter. On balance of probability, I accepted that the dates shown in this document reflected the dates that the Claimant worked during that period.[28]From 15 February 2023, the Claimant was employed on a permanent contract as Supported Housing Night Concierge worker. The Respondent does not dispute that this was a contract of employment as an employee.[29]The Claimant’s only challenge to her employment status as a bank worker amounting to being that of an employee was on the basis of two matters: the Cascade document at B135 and the fact that she had a caseload of, she alleges, 14 customers. Cascade appears to be the Respondent’s HR software program. The Claimant relies on the Cascade document because it states that her length of service was four years and one month. Further, she relies on being given four weeks’ notice of her dismissal. She relies on being given a caseload as an indication that she was a permanent employee. Page 5 of 12 I was satisfied from the evidence I heard from the Respondent that neither of these matters denoted employee status. With regard to the Cascade document, I was referred to B137, which sets out each period of the Claimant’s employment, by way of dates, location of work and employment status. I did not accept the Claimant’s assertion that this document had been forged in the absence of anything more than that assertion. 4 weeks notice was given to reflect the total amount of time that the Claimant had worked for the Respondent. With regard to her workload, I was satisfied by the evidence of Mrs Hamilton-Warford, that if the bank worker was engaged as a Support Worker, then the role was paid at that level and the duties included the level of caseload that would be carried by a Support Worker.[30]Pausing then to reach an analysis of the Claimant’s employment status and continuity of employment. It is clear that the Claimant was only employed as an employee for two specific periods, undertaking work on a fixed term basis and most recently from 15 February 2023 as a permanent employee. This means that her continuous employment began on 15 February 2023. Even if one were to accept that her bank work was in reality as an employee (which I do not find) there is in any event a gap in her work record between 23 January and 15 February 2023 which would act to break continuity.[31]I therefore find that the Claimant does not have the requisite two years employment required under section 108(1) ERA to bring an ordinary unfair dismissal complaint and therefore the Tribunal does not have jurisdiction to deal with it.[32]The matter therefore proceeds to be considered on the basis of an automatic unfair dismissal case relating to protected disclosures under section 103A ERA for which there is no qualifying period of employment.[33]The Claimant’s final contract then is at B89-99. The Claimant was latterly performing her duties at Palmer House. This is a 60 bed service that supports single homeless people with a range of complex needs including experience of homelessness or rough sleeping, substance misuse and/or mental illhealth. The accommodation is mainly shared flats with some studios. The customers, as the parties referred to them, are high risk.[34]The duties and expectations of a Supported Housing Night Concierge are set out at B138. This is a document which the Claimant was familiar with and indeed had been sent a copy at the time of the disciplinary matters which are referred to below.[35]Section 7 sets out the requirement to report incidents (at B142)[36]Section 10 (at B142) specifically states that the staff must walk around the service at hourly intervals (unless specifically instructed otherwise by management) and respond or record any health and safety issues relating to the customers of the service. Indeed, the Claimant explained in evidence that these patrols were carried out by a single worker internally walking around the building checking for any debris on the floor, looking for anything untoward, listening for any noise and carrying out welfare checks of specific customers if required. Page 6 of 12[37]Section 14 (at B144) sets out the basic role requirements, including the need to remain sitting at the front reception desk at all times except when on a break, conducting patrols, carrying out welfare checks etc; completing handover notes, not sleeping on duty and specifically not falsifying entries. It is made clear that a failure to adhere to these basic roles and requirements may be considered gross misconduct and lead to dismissal.[38]I was also referred to the Respondent’s disciplinary procedure at B102-117).[39]Physical patrols of the building are crucial given the vulnerable nature of the customers in order to protect their safety and welfare. These allow workers to see and hear if there are any causes for concern as there are frequently incidents throughout the night which need intervention from staff members. Whilst there are CCTV cameras within the building, these cover the hallways and common parts but do not record sound and only provide a limited indication of what, if anything, is occurring within the building.[40]The Claimant attended a two day Night concierge and Bank Worker Core training course and other training courses as referred to at B202.[41]There were two disciplinary proceedings taken against the Claimant which took place within a short period of time.[42]The first related to an incident on 3 September 2023 and the facts of which are not in dispute. The allegations were that the Claimant had failed to complete the required hourly patrols and had falsified the handover document to show that all of the patrols had been completed.[43]The matter was investigated by Richard Bradnock, a report was produced, this resulted in a disciplinary hearing being convened, the disciplinary hearing was conducted by Miss Biggs, the allegations being well-founded and resulted in the Claimant being issued with a final written warning, live for two years from 10 November 2023.[44]During the proceedings, the Claimant took full responsibility for what happened and only put forward mitigating circumstances relating to her fitness to work that day having been notified by the Police shortly before the start of that shift that her home and had been broken into.[45]Miss Biggs took this into account and although she considered the Claimant’s actions could be considered gross misconduct and could have warranted dismissal, she decided to only issue a final written warning.[46]I was referred to the investigation meeting notes at B177-181, the Claimant’s email to Mrs Hamilton-Warford dated 19 October 2023 at B196, the investigation report at B200-205, the notes of the disciplinary hearing at B255-262 and the disciplinary outcome letter at B265-267.[47]The Claimant did not appeal the warning, although she did ask that the length of time it was live for be reduced to 6 months. The Respondent’s response to this was that two years was the standard period of time for a final written warning and was justified. This exchange of emails is at B271-272. Page 7 of 12[48]Whilst in evidence and submissions the Claimant attempted to a) re-open the fairness of the sanction in those proceedings and b) raise further matters which she did not raise at the time in relation to those proceedings, it was not appropriate for me to do so or to take the matter any further given that there was nothing to indicate that the final written warning was not given in good faith or was manifestly inappropriate. Further, the Claimant did not appeal against the outcome at the time.[49]Two weeks after the final written warning had been issued, a further incident arose involving the Claimant. It was alleged that on the night of 23/24 November 2023, the Claimant failed to complete the required physical hourly patrols of Palmer House and had simply conducted CCTV patrols and further that she had failed to inform the Team leader or on-call duty manager on duty of this.[50]In the first instance workers are required to report matters to their Team Leader and, failing that, to the on-call Managers. The Respondent operated a two tier system for every shift and details of who the on-call Managers are each week are circulated by email to staff. The telephone numbers for the individuals available are also on the concierge duty sheet (at B139).[51]The facts of the matter relating to the incident, despite the Claimant’s attempts to rely on the CCTV footage (which I watched and added nothing), are not in dispute. Essentially, the Claimant was on duty with an agency worker, he had gone to take a break of 30 minutes, did not return for over four hours because he fell asleep, the Claimant was unable to leave the reception desk and the agency worker did not respond to her “screaming”, as she put it, to attract his attention.[52]The Claimant’s position, put repeatedly by her in her evidence was that it was not her fault that the agency worker was sleeping and she relied upon this as a further example of her repeated complaints that the Respondent was employing agency workers who had worked extensive hours and so were tired and unable to perform their duties. Her position with regard to failing to contact a manager was that she did not want to “grass up” the agency worker and that she did not attempt to call the on duty manager. She did however contact Mohammed Hussain, who she knew was not on duty that night, and perhaps, unsurprisingly, he did not answer her call, although he did contact her the following day.[53]Subsequent to the disciplinary proceedings, the Claimant has stated that she did not contact the night manager, Employee A, because he had previously sexually assaulted her. However, whilst she had told the Respondent that she had a “ fling” with Employee A and had raised her concerns about having him as a line manager, she had not disclosed the fact of a sexual assault until 26 March 2024, which was after her employment had ended. I was referred to her text message to Mr Hussain in this regard at B370.[54]The disciplinary allegations were investigated by Mr Hussain, who determined that there was a case to answer (at B307-312). The disciplinary hearing was conducted by Miss Biggs on 3 January 2024, who in the circumstances determined that given that the Claimant was already on a final written warning some two weeks prior to the incident and which also related Page 8 of 12 to her conduct in failing to complete patrols, it was appropriate to dismiss her. She was particularly concerned that the Claimant had not learnt anything from the previous incident and did not show any appreciation of the seriousness of her actions. I was referred to the notes of the hearing and the outcome letter at B313-318).[55]The Claimant appealed and her appeal was heard by Mr Markwell who was uninvolved with any of the events in question prior to receiving the appeal documentation. He considered the matter at a hearing and investigated the various points that the Claimant had raised in her letter of appeal, both with her and by speaking to relevant managers and also the agency which had supplied the worker on the night of the incident. Mr Markwell upheld the dismissal.[56]I was referred by was referred to the Claimant’s letter of appeal dated 11 January 2024 at B319-320, the invitation to the appeal hearing dated 16 January 2024 at B321-322, additional correspondence from the Claimant to Mr Markwell dated 20 January 2024 at B 324-325, the notes of the disciplinary hearing held on 24 January 2024 at B326-336, text messages from the agency worker on duty with the Claimant on the night in question at B 338-340, notes of the meeting held with the agency providing the agency worker held on 6 February 2024 at B347-349 and the appeal outcome letter dated 8 February 2024 at B353-360.[57]There are a number of ancillary matters that I need to deal with which were clearly important to the Claimant. Firstly, the Claimant asserted that she was not responsible for the actions of the agency worker in falling asleep. The Respondent stated in evidence that any action that needed to be taken against the agency worker was addressed by the Respondent directly and in liaison with the agency in question. Further, the Respondent said at the time and repeated in evidence that the Claimant was disciplined for her own actions/inactions. I had no reason to doubt this. Secondly, whilst there was initially a dispute raised by the Claimant as to whether the agency worker had been in engaged to work for the Respondent again after the incident in question (on 20 January 2024). However, this was resolved in that he was, the Respondent had initially denied it but had been misinformed by the agency and the agency was unaware that the worker should not have been engaged again. I had no reason to doubt tis and in any event this matter is of no relevance to the issues before me. Thirdly, the Claimant maintained that the statement from the agency worker as to what happened (in the above referenced texts) had been forged. There was no evidence to support this and in any event the Respondent accepted that the agency worker was asleep and absent from his post as she had alleged.[58]Both Miss Biggs and Mr Markwell denied that the Claimant was dismissed because she had made protected disclosures.[59]Miss Biggs’ evidence was that she was not aware of any whistleblowing by the Claimant at the time of the first disciplinary hearing. She said that her decision to issue a final written warning was based on the Claimant admitting the offence and offering her ill health due to her house break in way of mitigation. With regard to the second disciplinary, Miss Biggs said that she was aware that the Claimant did say that agency staff are doing back-to-back Page 9 of 12 shifts and using night shifts to sleep and she has referred to this in her outcome letter. However she was clear that the Claimant was dismissed not for any whistleblowing but because she did not follow the procedure and she was already on a final written warning. I accepted Miss Biggs’ evidence.[60]Mr Markwell’s evidence was that he only became aware when the Claimant said that she was a whistleblower at the appeal hearing. He was aware that she was alleging that an agency worker was working two shifts and that as a result he was too tired to work. He did not accept what she said amounted to whistleblowing on the basis that he formed the view that she was trying to cover up the fact that the worker was sleeping by not reporting it at all or by reporting it in such a way that it covered up the reason why she was not undertaking her patrols. He stressed that the hearing her concerns were to do with not “grassing him up”, as she put it. I accepted Mr Markwell’s evidence. Essential Law[61]Section 43B Employment Rights Act 1996: “(1)In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and ] tends to show one or more of the following— (a)that a criminal offence has been committed, is being committed or is likely to be committed, (b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c)that a miscarriage of justice has occurred, is occurring or is likely to occur, (d)that the health or safety of any individual has been, is being or is likely to be endangered, (e)that the environment has been, is being or is likely to be damaged, or (f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”[62]Section 103A Employment Rights Act 1996: “‘An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”Conclusions
[63]This is a case involving what is commonly known as whistle-blowing. In essence this means that a worker is protected by law if s/he discloses certain categories of information and makes the disclosure to the correct person and in the correct way.[64]Under section 103A ERA employees are protected against unfair dismissal for making protected disclosures.[65]What amounts to a protected disclosure in law is governed by section 43B ERA and is set out in the list of issues at paragraph 3 (at B61). Page 10 of 12[66]Once the protected disclosure(s) is identified, the Tribunal has to decide whether the reason, or main reason, for the dismissal, if more than one, was because of the protected disclosures (section 103A ERA). This is what is called an automatic unfair dismissal claim.[67]In a case where the Claimant does not have two years qualifying employment and so only has a claim of automatic unfair dismissal, the burden is on her to show that the reason, or if more than one, the principal reason for her dismissal, was the protected disclosure(s). In other words, she has to prove that she was dismissed for whistle-blowing reasons.[68]Turning to the protected disclosures. These are set out at paragraph 3 of the list of issues (at B61).[69]The first disclosure is that in May 2023 the Claimant disclosed to Mohammed Hussain orally the issue that agency staff were doing back-to-back shifts and using the night shift to sleep. The Claimant did not present any evidence on this within her witness statement and there are no supporting documents. Whilst it may amount to a protected disclosure and this is difficult to ascertain without something more, for reasons set out below it does not in any event take the matters any further.[70]With regard to the second protected disclosure, which is on 3 January 2024 at her disciplinary hearing, the Claimant made the same point regarding the issue of agency staff arguing that “every life matters”. Miss Biggs accepted that the Claimant had raised the matter at the disciplinary hearing but she had taken the view that whilst it was an issue it was not a matter that was relevant to the allegations that had been brought against the Claimant. Whilst inclined to accept, without going through a more formal determination of the various elements of a protected disclosure that this does fulfil the legislative requirements, for reasons set out below it does not take the matter any further forward.[71]Turning then to the issue of unfair dismissal. The difficulty here for the Claimant is that she has not provided evidence which proves that she was dismissed for whistleblowing reasons. It is clear that she was dismissed for misconduct because she did not carry out the required hourly shifts, did not make an adequate record and whilst she was unable to do so because her co-worker went AWOL, she did not alert the Respondent of this by way of either calling the night manager or the on-call managers and she was already on a final written warning some two weeks earlier for much the same thing. There is nothing that suggests that the whistleblowing, in as far as I have taken it as read, was the principal reason for the Claimant’s dismissal. For the sake of completeness, I would add that this includes the upholding of the dismissal on appeal. Indeed as Mr Brown submitted, in respect of the second protected disclosure, that the Claimant only raised this at the disciplinary hearing and by this time the disciplinary process had already commenced which in turn then affects the probability that it led to the ultimate dismissal.[72]The Claimant’s attempts to blame this on the agency worker unfortunately missed the point either naïvely or by design. Whilst the Claimant may have had some legitimate concerns as to the way in which agency workers were supplied and as to the hours they were working, these were not matters that Page 11 of 12 brought about her dismissal and indeed as I had to repeatedly tell her were not matters that were not relevant to the issue that I had to determine.[73]Similarly, whilst of course I would express concern as to the matters involving the allegations against Employee A, this was not a matter for this Tribunal and given that the Claimant did not tell the Respondent about the issue until after her employment had ended, was not something they were able to take into account at the time of the disciplinary proceedings.