N Maitre v London Borough of Richmond upon Thames and London Borough of Wandsworth: 2306200/2020
EMPLOYMENT TRIBUNALS
Case No 2306200/2020
Between
N MaitreClaimantLondon Borough of Richmond upon Thames (1) London Borough of Wandsworth (2)Respondent
Before
Employment Judge L BurgeMs Gyane (instructed by Counsel) for respondentDate 8 February 2023
JUDGMENT
[1]The Claimant made four protected disclosures.
REASONS
Introduction
[1]The Claimant gave evidence and Maurice Mcleod (Councillor) also gave evidence on her behalf. Clare Dorning (Head of Housing Service (Assessment and Adaption)), Paula Jameson (Customer Service and Housing Options Manager) and Julie Bernadello (Temporary Accommodation Manager) gave 1 of 10 evidence on behalf of the Respondents. Both Ms Alyamani and Ms Gyane gave written and oral closing submissions.[2]A bundle of 208 pages was provided to the Tribunal.
The Issues
[3]At the start of the hearing the Claimant withdrew numerous alleged protected disclosures and set out the following alleged protected disclosures:[1]On 7 or 8 November 2019 she made a disclosure to Ms Jameson about a breach of duty of care and a breach of a legal obligation in relation to relief duty;[2]On 18 November she made a disclosure to Ms Jameson about a breach of duty of care and a disclosure about the safety of two elderly brothers and possible endangerment to life;[3]On 25 or 26 November 2019 she made a disclosure to Ms Jameson about the safety of two elderly brothers and possible endangerment to life;
The Evidence
[4]On 28 November 2019 she made a disclosure to Ms Dorning about a breach of duty of care;[5]On 2 or 3 December 2019 she made a disclosure to Ms Jameson about the safety of individuals and potential endangerment to life;[6]On 4 or 5 December 2019 she made a disclosure to Julie Bernadello about the health and safety of the individuals and potential endangerment to life;[7]On 4 or 5 December 2019 she made a disclosure to Ms Jameson about the health and safety of the individuals and potential endangerment to life;[8]On 18 December 2019 she raised concerns to Ms Jameson about suicide in similar circumstances and therefore her concerns about her own clients and the potential risk to their lives; and[9]In early January 2020 she made a disclosure to Ms Jameson about the health and safety of the individuals and a breach of duty of care. 4. The Tribunal allowed the late clarification of the alleged protected disclosures and the Claimant’s late supplementary statement. The Tribunal decided that it would not be fair for the Respondents to have to answer disclosures 8 and 9 at this hearing and so they would be dealt with at the start of the final hearing. Having considered its position, the Respondents requested that they also be decided at this hearing and so they were. The Claimant made an application to amend alleged disclosure 4 during closing submissions as she said it had not been correctly described. Given the lateness of the application and the implication being that witnesses would need to be recalled, it was not in accordance with the overriding objective in dealing with the case proportionately and avoiding delay and so the application was refused. 2 of 10 5. Following the hearing the Claimant consented to the Respondents names being amended to London Borough of Richmond upon Thames and London Borough of Wandsworth. Findings of fact 6. The Claimant worked for the Respondents for 16 years, most recently as a Deputy Customer Services and Housing Options Manager. Part of the Claimant’s role was to manage a team of officers that received and assessed housing applications under Part VI and VII of the Housing Act 1996 as amended, assessing applications in line with the legal duties owed by the Respondents to those within its Service area with a particular focus on preventing homelessness wherever possible. 7. Two elderly vulnerable brothers (the “Brothers”), were being evicted from their family home of 70 years. The Brothers had always lived together, were in their 80s, one had terminal cancer and the other cared for him. An application was received in relation to the Brothers. On 30 October 2019 the Claimant wrote to Ms Dorning requesting sheltered housing due to the Brothers’ imminent homelessness. This was an escalation from the Claimant who would have usually left it to Alex Jones (a member of the Claimant’s team) to approach a less senior manager. 8. The Brothers were assessed as a family household but the sheltered accommodation offered to them was two separate units. The Tribunal accepted Ms Dorning’s evidence that all social housing is unfurnished. The Brothers accepted the two units in the sheltered accommodation. 9. The Claimant says that on 7 or 8 November 2019 she made a disclosure to Ms Jameson about a breach of duty of care and a breach of a legal obligation in relation to relief duty. However, this is rejected by the Tribunal as the decisions on which duty to apply would rest with Alex Jones (who worked in the Claimant’s team), or herself as the manager. Further, there are no documents to indicate that the Claimant thought that the wrong duty was being applied. On 30 October 2019 the Claimant made a request to Ms Dorning that the Brothers be referred to sheltered housing to prevent their homelessness and this is what is then done. The Tribunal finds, on the balance of probabilities, that the information provided to Ms Jameson on 7 or 8 November was an update on the Brothers’ case and did not include a concern that there was a breach of duty of care and a breach of a legal obligation in relation to relief duty.
Findings of fact
[10]Ms Jameson, the Claimant’s manager, does not recall the detail of the conversations she had with the Claimant about the Brothers but said that the Claimant would come and speak to her every now and then about this case but that she does not recollect detailed specifics. The Tribunal finds that the Claimant is the more reliable witness on the detail of the conversations. The Tribunal accepts the Claimant’s evidence that she spoke to Ms Jameson about the Brothers’ vulnerability, what Mr Jones had reported about their presentation, the need to arrange support for the Brothers including help moving homes and the suitability of temporary accommodation. The Claimant alleged that she made 3 of 10 protected disclosures on 18 November and again on 25 or 26 November 2019. However, the Claimant’s recollection of the words used was general. She recalled expressing concerns but there was no indication that those concerns were, at the time, said to be because of an alleged or potential breach of duty. On the balance of probabilities, the Tribunal finds that the Claimant raised these concerns not because she thought the Respondents were failing in their legal duty nor that there was a possible endangerment to life, but because she was concerned about the Brothers and was working hard to ensure that the Brothers would have appropriate accommodation, including furniture, once they were homeless.[11]On 27 November 2019 the Brothers were evicted from their home and provided with temporary accommodation in Croydon, out of borough and some distance from the family home they had lived in for 70 years. The Claimant carried on trying to get furniture for the sheltered accommodation that the Brothers would be living in.[12]On 28 November 2019 the Brothers did not attend the sign up for the sheltered accommodation they had accepted but the Claimant and Mr Jones did, and the Claimant arranged for delivery of some furnishings into one of the properties.[13]On 29 November 2019 Mr Jones wrote to social services (copied to the Claimant) informing them that one of the Brothers had gone into a coma and had been taken to hospital by ambulance. Later that day Mr Jones received a phone call from the Brothers’ previous neighbour who was concerned that one of the Brothers was having a mental breakdown. The neighbour would arrange for a taxi for the brothers to attend the office.
The Law
[14]The Tribunal accepts the Claimant’s evidence that management refused the purchase of two furniture packs for the clients, normally ordered by the Temporary Accommodations team, which would have enabled the clients to move into the properties reserved for them, and also would have freed up their interim accommodation for another homeless household. This was because the Brothers had savings and so did not qualify for the purchase of furniture packs. The Claimant continued working hard to source furniture for the sheltered accommodation together with Councillor Mcleod.[15]As the Brothers had not taken any action to furnish their accommodation, and given the immediate need to relocate from temporary to settled accommodation, Ms Dorning then agreed to provide the Brothers with essential items including a cooker, fridge and beds.[16]On 2 December 2019 the Brothers again did not attend the appointment to sign for their sheltered properties. On the same day Mr Jones wrote to duty allocations (copied to the Claimant) as he had received a phone call from a friend of the Brothers who said that the police had checked on them and one of the Brothers did not have medication, was not attending hospital appointments and the mental welfare of the other brother was deteriorating and he was reported to be feeling suicidal. Mr Jones asked for daily occupancy checks due to their vulnerability. 4 of 10[17]Mr Jones then, still on 2 December 2019, made two safeguarding referrals, one to Wandsworth and one to Croydon: “They require urgent assistance with social care, and this will include assistance in arranging transportation for medical appointments, housing appointments, and support with managing their personal wellbeing and care at home. Unfortunately, the housing department is very restricted on the social support we can provide, so it is really quite urgent that there is an intervention for social care to ensure the safety and wellbeing of the clients.”[18]Ms Bashford emailed requesting daily welfare checks and to assist the Claimant with access for her visits.[19]On 3 December 2019 the Claimant emailed Ms Dorning and Ms Jameson (copying in Ms Bashford and Julie Bernadello) providing an update and setting out her concern for the Brothers’ welfare: “…I have been very concerned about the clients welfare since this case came to my attention and I would like to listen to what…would like in term of housing and see how we can best assist them, should …come through. In light of their circumstances ie they have always lived together…has been looking after his brother who attend regularly hospital for his cancer treatment for years. Hence, I do not think that the two sheltered properties identified in … are suitable for the clients as to separate them as this difficult time of their life may just be too much for them to deal with. Also, as you are aware we have arranged for the transport of some furniture last Friday on behalf of the clients due to their age, and the agreement was that… would pay for the removal. … FYI, Cllr Mcleod called me today, he advised that he has been able to source all the furniture required for the clients and I have asked him to hold on to these until we know how we are moving forward with this case. A safeguarding referral has been made both in Wandsworth…”[20]On 4 December 2019 the Claimant visited the Brother who was at the temporary accommodation and found him unkempt. He reported to her that they had not had any solid or hot food since moving into the temporary accommodation. The Claimant bought food for the Brothers. She found the temporary accommodation unsuitable as there were workmen coming in and out of the front entry door and constant construction noise. A social worker visited during this visit also. The Brother had questions about the sheltered accommodation and Mr Jones then followed up with various queries on flooring and utilities for the properties. 5 of 10[21]Both safeguarding referrals for help with social care for the Brothers were declined, Croydon because the Brothers’ ordinary residence was Wandsworth, and Wandsworth because they were living out of borough. On 6 December 2019 Mr Jones provided photos of the previous poor living conditions of the Brothers to Wandsworth requesting that they revisit their decision to drop the safeguarding referral.[22]The Tribunal accepts that the Claimant raised her concerns about the suitability of the temporary accommodation and the risk/fear that the Brothers’ lives were in danger if their mental and physical health continued to deteriorate in these conditions. While she did not specifically say it was a breach of a legal obligation the context of the Respondents having a legal obligation towards the Brothers makes it implicit. The Tribunal finds that the Claimant raised these concerns to both Ms Jameson and Julie Bernadello. Ms Bernadello then contacted the hospital to ask that if they had spare food whether they could feed the other Brother while he was visiting his Brother.[23]On around 20 December 2019 the Brother was discharged from hospital, the Claimant wrote to Councillor Mcleod that they had gone back to their temporary accommodation in Croydon and that they were due to move to the separate sheltered housing at the beginning of January. The Claimant said that one Brother expressed a lot of concerns and worried about the prospect of living in separate accommodation, in light of [the other Brother’s] health deterioration.[24]The Tribunal accepts the Claimant’s evidence that at the end of December a colleague told the Claimant that one of her elderly clients who had been placed in similar circumstances in interim accommodation had committed suicide. The Tribunal accepts and finds that she told Ms Jameson about this and her concern that the Brothers’ lives were also at risk.[25]The Respondent’s evidence is accepted that there had been two deaths but the second was late December and was only known about in January.[26]The Tribunal further accepts the Claimant’s evidence that in January 2020 the Claimant raised concerns that there had been two suicides of elderly clients and that the Respondents were failing in their duty with regards to all elderly clients and requested that an investigation be carried out and that the matter be reported to the Director.
Relevant law
[27]A qualifying disclosure is defined by s.43B: (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, 6 of 10 (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.”[28]In Williams v Michelle Brown AM, UKEAT/0044/19/OO at paragraph 9, HHJ Auerbach identified five issues, which a Tribunal is required to decide in relation to whether something amounts to a qualifying disclosure: “It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.”[29]The disclosure must be of “information”. In Kilraine v London Borough of Wandsworth [2018] ICR 1850 Sales LJ said that allegations could amount to disclosures of information depending on their content and on the surrounding context. He set out the following test for determining whether the information threshold had been met so as to potentially amount to a qualifying disclosure: the disclosure has to have “sufficient factual content and specificity such as is capable of tending to show” one of the five wrongdoings or deliberate concealment of the same. “Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a Tribunal in the light of all the facts of the case” (paragraphs 35 and 36).[30]The Tribunal needs to assess whether, given the factual context, it is appropriate to analyse a particular communication in isolation or in connection with others. In Norbrook Laboratories (GB) Ltd v Shaw [2014] ICR 540 (EAT), Slade J (at para 22) said that “an earlier communication can be read together with a later one as embedded in it, rendering the later communication a protected disclosure, even if taken on their own they would not fall within Section 43B(1)(d)”. Whether or not it is correct to do so is a question of fact.[31]The disclosure may still be a qualifying disclosure even if the information is incorrect, in that a belief may be a reasonable belief even if it is wrong: Babula v Waltham Forest College [2007] ICR 1026.[32]Unless the legal obligation is obvious, Tribunals must specify the particular obligation that the Claimant believes has been breached, the source of the obligation should be identified and capable of verification by reference to statute or regulation (Blackbay Ventures Ltd (t/a Chemistree) v Gahir [2014] ICR 747 (EAT), paragraph 98). It is what the worker reasonably believed that information 7 of 10 tended to show, not the employer, and it is not necessary that the disclosure identifies the specific legal obligation that is said to have been breached (Twist DX Limited v Armes (UKEAT/0030/20, paragraph 84).[33]The Court of Appeal considered the ‘public interest’ test in Chesterton Global Ltd v Nurmohamed [2018] ICR 731 and said that a disclosure could be in the public interest even if the motivation for the disclosure was to advance the worker’s own interests - motive was irrelevant. What was required was that the worker reasonably believed disclosure was in the public interest in addition to their own personal interest.[34]A qualifying disclosure is a protected disclosure if it is made to the claimant’s employer (sections 43A and 43C Employment Rights Act 1996). In this case, all of the alleged disclosures were made to the those working in the Respondents. Therefore, if the alleged disclosures were qualifying disclosures, they were also protected disclosures.
Discussion and conclusions
[35]The Claimant’s team had statutory duties to prevent homelessness wherever possible. They worked with vulnerable members of the public who were often in desperate need. The Claimant’s alleged disclosures were in relation to two particularly vulnerable clients for whom the Respondents had assumed a responsibility. There is no doubt that there is a public interest in the Respondents meeting their legal obligations towards vulnerable individuals. It was reasonable for the Claimant to have a belief that there was.[36]The Tribunal has found that the information provided to Ms Jameson on 7 or 8 November (alleged disclosure 1) was an update on the Brothers’ case and did not include a concern that there was a breach of duty of care and a breach of a legal obligation in relation to relief duty. The Tribunal has also found that the Claimant raised concerns on 18 and 25/26 November 2019 (alleged disclosures 2 and 3) not because she believed that the Respondents were failing in their legal duty nor that there was a possible endangerment to life, but because she was concerned about the Brothers and was working hard to ensure that they would have appropriate accommodation, including furniture, once they were homeless. This was the provision of “information”, it was reasonably believed to be in the public interest but it did not tend to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject, or that the health or safety of any individual has been, is being or is likely to be endangered, nor was that reasonably believed by the Claimant at the time. The Claimant herself could have questioned the duty that had been applied to the Brothers but she did not do so. She made a request to Ms Dorning that they be provided sheltered accommodation and they were. She did raise her concerns about the provision of two flats rather than one, but not in the context that there was any wrongdoing by the Respondents, and in any event the Brothers had accepted two sheltered accommodation at that stage. Alleged disclosures 1 - 3 are therefore not qualifying disclosures. 8 of 10[37]In relation to disclosure 4, the Tribunal concludes that there was no disclosure to Ms Dorning about a breach of duty of care. The provision of furniture packs had been refused due to the Brothers having their own means to purchase them. Ms Dorning had subsequently agreed to the provision of beds and white goods. The Claimant worked very hard making enquiries and arranging furniture for the Brothers.28. Disclosure 5 concerns an alleged disclosure made on 2 or 3 December 2019 to Ms Jameson about the safety of individuals and potential endangerment to life. However, an email on 3 December 2019 from the Claimant to Ms Dorning, Ms Jameson, Ms Bashford and Ms Bernadello provides an update on the Brothers’ situation. She says that she is very concerned about their welfare and she would like to listen to them to hear what they would like in terms of housing. She said that she did not think two sheltered properties were suitable as they had always lived together, that she had arranged for the transport of some furniture for them and that Councillor Mcleod had source al the furniture required. Given the date of the email, the Tribunal concludes that a verbal disclosure is likely to have been in the same terms. The Tribunal concludes at this stage the Claimant was providing an update, it is the provision of information, but it does not tend to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject, or that the health or safety of any individual has been, is being or is likely to be endangered and so it is not a protected disclosure.29. In relation to disclosures 6 and 7, the Claimant visits the Brother at the out of borough temporary accommodation and finds him unkempt and without appropriate food, the other Brother having been taken to hospital. She finds the temporary accommodation in a building site with noise and workman entering and leaving by the Brothers’ front door. The Claimant’s concerns further escalate when the safeguarding referrals result in neither Croydon nor Wandsworth providing social support for the Brothers. The Claimant became extremely concerned about their wellbeing, their health appeared to be deteriorating and she reasonably believed that the Council was failing to abide by its legal obligations to these individuals. The Tribunal concludes that she raised information to both Ms Jameson and Ms Bernadello that tended to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject, and that the health or safety of any individual has been, is being or is likely to be endangered. It was reasonable for the Claimant to have that belief. This disclosure is undoubtedly in the public interest given the Respondent’s responsibility for housing and providing social support for vulnerable adults and it is reasonable for the Claimant to have had that belief.[38]In the context of having made disclosures 6 and 7, the Tribunal concludes that disclosures 8 and 9 were also protected disclosures. The Claimant had a reasonable belief that there had been two suicides as she had been told this by colleagues and that the Respondents were failing in their duty with regards to all elderly clients and requested that an investigation be carried out and that the matter be reported to the Director. She provided this information to Ms Jameson. It tended to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject, and that the health or safety 9 of 10 of any individual has been, is being or is likely to be endangered. It was reasonable for her to have that belief. These disclosures are undoubtedly in the public interest given the Respondent’s responsibility for housing and providing social support for vulnerable adults and it is reasonable for the Claimant to have had that belief.[39]The Tribunal concludes that the Claimant therefore made 4 protected disclosures.[40]Having heard submissions from the parties on the subject, the final hearing currently listed for 3 – 7 July 2023 is reduced to 4 days to take place on 4, 5, 6 and 7 July 2023. CERTIFICATE OF CORRECTION Under Rule 67, the EMPLOYMENT TRIBUNALS Claimant: Ms N Maitre First Respondent: London Borough of Richmond Upon Thames Second Respondent: London Borough of Wandsworth Heard at: London South (Croydon) On: 4th, 5th, 6th 7th and 8th December 2023 Before: Employment Judge L Clarke Appearances For the claimant: Mr James Miller (FRU Representative) For the Respondents: Ms Naomi Gyane (Counsel) AMENDED PURSUANT TO RULE 67 OF THE EMPLOYMENT TRIBUNAL PROCEDURE RULES 2024 AMENDED JUDGMENT Re-consideration 1. The judgment of the legal officer dated 17th November 2023 is reconsidered pursuant to rules 69, 70 and 73 of the Employment Tribunal Rules. As there is an obvious error, that judgment is corrected and varied to show that ONLY the claim for public interest detriment (whistleblowing detriment) pursuant to s.47(B) of the Employment Rights Act 1996 is dismissed on withdrawal. Unfair Dismissal 2. THE COMPLAINT OF AUTOMATICALLY UNFAIR DISMISSAL PURSUANT TO S.103A OF THE EMPLOYMENT RIGHTS ACT 21996 IS NOT-WELL FOUNDED. THE CLAIMANT WAS NOT DISMISSED FOR MAKING A PROTECTED DISCLOSURE. 3. The complaint of ordinary unfair dismissal is well-founded. The Claimant was unfairly dismissed. 4. The respondent shall pay the claimant the following sums:(a) A basic award of £11,029.00.(b) A compensatory award of £24,289.56. Note that these are actual the sums payable to the claimant after any deductions or uplifts have been applied. 5. The Employment Protection (Recoupment of Benefits) Regulations 1996 apply: (a) The total monetary award (i.e. the compensatory award plus basic award) payable to the claimant for unfair dismissal is £35,318.46 (b) The prescribed element is £24,289.56.(c) The period of the prescribed element is from 17th June 2020 to 17th March 2021.(d) The difference between (a) and (b) is £11,029.00. Employment Judge Clarke 12 December 2023 Note Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision.
Introduction
[1]The Claimant was jointly employed by the Respondents, most recently as a Deputy Customer Services and Housing Options Manager, from August 2003 until her summary dismissal on 17th June 2020.[2]The Claimant notified ACAS under the early conciliation procedure on 8th September 2020 and a certificate was issued on 9th September 2020. The claim form was presented on 8th October 2020 and sought compensation for protected disclosure detriment and for automatically unfair, alternatively ordinarily unfair, dismissal and other payments (unspecified).[3]The claims for unspecified payments were resolved inter partes and at the first preliminary hearing on 14th October 2021 were withdrawn.[4]At a preliminary hearing on 9th and 10th January 2023 and 2nd February 2023 the Tribunal heard evidence and determined that the Claimant had made 4 protected disclosures [73-82], namely:(1) On 4 or 5 December 2019 she made a disclosure to Julie Bernadello about the health and safety of 2 brothers (who were clients) and potential endangerment to life.(2) On 4 or 5 December 2019 she made a disclosure to Ms Jameson about the health and safety of the 2 brothers and potential endangerment to life.(3) On 18 December 2019 she raised concerns to Ms Jameson about suicide in similar circumstances to those of the 2 brothers and therefore her concerns about her own clients (the 2 brothers) and the potential risk to their lives.(4) In early January 2020 she made a disclosure to Ms Jameson about the health and safety of the 2 brothers and a breach of the Respondents’ duty of care.[5]On 3rd November 2023 the Claimant wrote to the Tribunal withdrawing her claim for detriment pursuant to s47B of the Employment Rights Act 1996. The Tribunal subsequently issued a judgment to this effect on 17th November 2023.[6]The sole remaining claim at the time of the final hearing was therefore the claim for automatically unfair, alternatively, ordinary unfair, dismissal.[7]The Respondents resists these claims denying that the Claimant was dismissed because of any disclosure and asserting that she was fairly dismissed for gross misconduct (namely that she had used council property for monetary gain in that she inappropriately used visitors permits to obtain free parking) following a fair process.[8]The claim was heard between 4th and 8th December 2023. The Claimant had the benefit of a French interpreter but did not always utilise the interpreter.[9]These written reasons follow oral judgments given on 8th December 2023 and the short form written judgment which followed on 12th December 2023. I have subsequently corrected the judgment of 12th December 2023 under the slip rule. The request for written reasons, although first made on 15th December 2023, did not reach me until 6th January 2025.
The Issues
[10]At the commencement of the hearing, the list of issues was confirmed to be those contained in the case management order of 19th October 2023 [97-100] save that issues 1.1.2 (Respondents claim to have dismissed for some other substantial reason (SOSR) and 3 (public interest detriment) were no longer live. The Evidence[11]The Tribunal considered a bundle numbered to page 974. References before and hereafter in bold within square brackets are to the pages of the paper bundle. The Tribunal was also provided with a schedule of loss and brief chronology. The Tribunal considered, witness statements from each witness who gave oral evidence.[12]At the hearing, the Claimant was represented by Mr Miller who called sworn evidence from the Claimant and from Mr Ian Hussain.[13]The Respondent was represented by Ms Gyane, who called sworn evidence from Ms Julie Bernadello, Mr Dave Worth, Ms Paula Jameson, Ms Sue Brooks-Hunte Mr Andy Algar and Mr Brian Reilly. The Submissions[14]The Tribunal received written submissions from both the Claimant and Respondents’ representatives and further heard oral submissions from both in relation to liability and heard oral submissions from both representatives as to remedy.[15]Neither party made submissions on Polkey deductions or adjustments for failure to follow ACAS guidance. The Law Standard of Proof[16]The party who bears the burden of proving the claim, or any element of the claim, must do so on the balance of probabilities. Unfair Dismissal[17]Section 94 of the Employment Rights Act 1996 (“the 1996 Act”) confers on employees the right not to be unfairly dismissed. Enforcement of that right is by way of complaint to the Tribunal under section 111.[18]The Claimant must show that he was dismissed by the Respondent under section 95 but in this case, there is no issue regarding the dismissal. Both the Claimant and Respondents accept that the Claimant was dismissed on 17th June 2020.[19]Section 98 of the 1996 Act deals with the fairness of dismissals. There are 2 stages that the Tribunal must consider. Firstly, the Respondent employer must show that it had a potentially fair reason for the dismissal within section 98(2).[20]If the reason, or principal reason for the dismissal is that the employee made a protected disclosure, the dismissal will be automatically unfair under s103A of the 1996 Act. If the protected disclosure was merely a subsidiary reason, the dismissal will not be automatically unfair.[21]Where the Claimant has 2 years continuous service, as in this case, the Claimant must produce some evidence to show that the principal reason for the dismissal was the making of a protected disclosure but does not have to prove that the dismissal was for an automatically unfair reason. It remains for the employer to show what the reason was, but the Claimant will not succeed on the claim for automatic unfair dismissal merely by default. The Tribunal need not find that the dismissal was for the reason asserted by the Claimant - Kuzel -v- Roche Products Ltd [2008] ICR 799, CA.[22]The Tribunal is entitled to draw inferences as to the real reason why the employer acted the way that they did in the absence of direct evidence and on the basis of its findings of fact.[23]A potentially fair reason for dismissal under s.98 of the 1996 Act is misconduct.[24]Secondly, having established the reason for the dismissal, if it was a potentially fair reason, the Tribunal has to consider, without there being any burden of proof on either party, whether the Respondent acted fairly or unfairly in dismissing for that reason.[25]Section 98(4) of the 1996 Act deals with fairness generally and provides that the determination of the question of whether or not the dismissal was fair or unfair, having regard to the reason shown by the employer:(a) depends upon whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee; and(b) shall be determined in accordance with equity and the substantial merits of the case.[26]There is a neutral burden of proof in relation to the general test of fairness.[27]There is also well-established guidance for Tribunals on the fairness within s.98(4) of misconduct dismissals in the decisions in British Home Stores -v- Burchell [1980] ICR 303 and Post Office –v- Foley [2000] IRLR 827. In summary, the Tribunal must consider whether:(i) the employer had a genuine belief in the employee’s guilt (this goes to the employer’s reason for dismissal, where the burden of proof is on the Respondent);(ii) such genuine belief was held on reasonable grounds;(iii) the employer had carried out a reasonable investigation into the matter;(iv) the employer followed a reasonably fair procedure; and(v) dismissal was an appropriate punishment as opposed to some other disciplinary sanction, such as a warning. In relation to (ii), (iii), (iv) and (v) above, there is a neutral burden of proof.[28]In considering all aspects of the case, including those set out above, and in deciding whether or not the employer acted reasonably or unreasonably within section 98(4) of the 1996 Act, the Tribunal must decide objectively whether the employer acted within the band of reasonable responses open to an employer in the circumstances. This applies not only to the decision to dismiss but to the procedure adopted by the Respondent – Sainsbury's Supermarkets Limited – v- Hitt [2003] IRLR 23; [2003] ICR 111, CA.[29]It is immaterial how the Tribunal would have handled events or what decisions the Tribunal would have made. The Tribunal must not substitute its own view for that of the reasonable employer – Iceland Frozen Foods Limited –v- Jones [1982] IRLR 439, Sainsbury's Supermarkets Limited –v- Hitt [2003] IRLR 23; [2003] ICR 111, CA, and London Ambulance Service NHS Trust –v- Small [2009] IRLR 563.[30]Procedural reasonableness is usually assessed by reference to the ACAS Code and unreasonable failure to follow the Code may result in an adjustment of compensation under S.207 and s.207A of the Trade Union and Labour Relations (Consolidation) Act 1992. Where the substance of the dismissal falls within the intended remit of the Code (misconduct or capability) and in cases where the employer relies upon the breakdown of mutual trust and confidence (in particular where the employer had initiated disciplinary proceedings relating to conduct prior to the dismissal) the ACAS Code will apply but it may not be appropriate to impose a sanction for failure to comply (see Hussain -v- Jurys Inns Group Ltd EAT 0283/15 EAT, Phoenix House Ltd -v- Stockman 2017 ICR 84, EAT and Lund - v- St Edmund’s School, Canterbury 2013 ICR D26).[31]In any event, the ACAS Code is be had regard to but is not a prescriptive list of actions which must be followed in all circumstances. The ACAS guidelines themselves specifically indicate that that the Tribunal may take the size and resources of the employer into account and that it may not be practical for all employers to take all of the steps set out in the Code. Relevant Findings of Fact and Associated Conclusions The Witnesses[32]I was asked by the Respondent to conclude that the Claimant did not give honest or credible evidence. She often did not assist herself in the manner in which she gave her evidence as she struggled to give a straightforward answer to simple questions, even when assisted by an interpreter. In her responses she frequently answered a wholly different question that had not been asked. The Respondent’s representative invited me to interpret this as evasiveness. However, I am not satisfied this was the reason. This is not an infrequent presentation of a stressed witness who has not necessarily correctly identified what is important, and what may be less so, and who has not grasped the importance of focussing on the key matters and the actual questions asked but who instead tries to provide all the details they consider relevant or important in answer to any given question. The Claimant had a lot she wished to say the Tribunal and it was clear that she felt that she had been denied the opportunity to fully state her case during the disciplinary process. She is undoubtedly genuinely aggrieved at how her employment terminated. Through her presentation at the hearing, the material in the bundle (including her responses to questions posed during the disciplinary process and her detailed and thorough annotations to the interview transcripts and summaries) and a lengthy statement she has shown a determination to get the minutiae of her narrative across and I am not satisfied that her intention in the way she answered the questions was to be evasive or dishonest rather than to pursue that aim.[33]I am satisfied that all the witnesses came to the Tribunal and gave honest evidence to the best of their ability. On occasion their evidence was constrained by memory limitations resulting from the fact that the events they were being asked to recall took place between 3-4 years earlier. This is to be expected after such a period and was not an indicator that they lacked credibility in what they did recall. The Claims[34]The Claimant was jointly employed by the Respondents from 11th August 2003 to 17th June 2020. At the time of her dismissal, the Claimant was a Deputy Customer Services and Housing Options Manager. Her role required her to manage a team of officers that received and assessed housing applications as well as the allocation and inspection of temporary accommodations. The Claimant’s team were also responsible for conducting ‘New Generation Scheme’ (“NGS”) visits.[35]Until 2017 the Claimant had been managed for many years by Ian Hussain. After 2017 her line manager became Paula Jameson.[36]In November 2019 one of the Claimant’s officers, Alex Jones, and by extension the Claimant, was involved in a case concerning two elderly brothers who were in their 80’s and who were about to be evicted from their long-term accommodation. Both had health problems and other issues and were very vulnerable. The case was clearly a difficult one for the Claimant and her team who were trying to ensure the brothers’ welfare and secure both temporary accommodation and permanent re-housing, which latter accommodation would be unfurnished. The case was serious, and there were subsequently other issues that arose which made the Claimant take the view that it was an extremely serious case. However, it was not one which was so unusual or serious that it could not be managed at the level of the Claimant and her team.[37]Also, in November 2019 the Respondents were undergoing a restructure. As a result on 22nd November 2019 the Claimant was interviewed by Ghazell Nasir, Clare Dorning and Dave Worth in respect of that restructuring. During that interview, and in passing, she referred to the case of the brothers but there was no particular emphasis placed on it and no protected disclosure took place at that time. Following the interview Ghazel Nasir observed the Claimant’s car parked outside the office displaying a visitor’s parking permit. She subsequently reported her observation to Dave Worth as she was concerned that it represented an inappropriate use of a visitors parking permit.[38]The visitor parking permit is a scratchcard which permits the user to park all day in a specific parking zone on a specific date. The user is required to complete details on them which includes the parking zone in which they are being used and the vehicle registration number and must scratch off the date and month of use [387].[39]These visitor permits were used from time to time by the Respondent’s employees to enable the council officers to park in areas they would otherwise not be entitled to park in order to facilitate them undertaking their work obligations. In this context they were purchased by the relevant department head from the council using department budgets and they were therefore acquired using public funds.[40]Their individual cost was in the region of £8 to £10 and they were purchased in books of five by the managers at the level above the Claimant and then distributed by the managers to the staff who needed them. Use of these visitor permits by officers was longstanding, widespread and well known. The extent of their permitted use was however a matter on which there was no written policy and by 2019 there was no clear consensus on when their use was permitted. Although it was clearer what they were not permitted to be used for. It was clearly understood by everyone that the permits were not to be used by officers solely for the purpose of attending their main office of work (that is for commuting to work) but could only be used in connection with council business, which included when attending visits on council clients.[41]When the Claimant commenced her employment, there would have been little need for council staff to use the permits to park near the office as free parking was available in council carparks local to the office as well as in certain locations on the surrounding streets. That changed when in 2010 the Respondents instigated a new arrangement regarding office parking and required anyone wishing to use the staff car parks regularly to apply, and pay, for a monthly permit to entitle them to park in the staff carpark, paid by way of a salary sacrifice of initially £15pcm but rising over time to £25pcm [374-376] Places in the car park were however limited.[42]Paragraph 11 of the October 2010 Car Parking Changes document [376] states: “For those staff who do not have agreed parking who wish to park at the Council’s premises on an ad hoc basis then the normal arrangements for visitors parking with the authorisation of the relevant chief officer will apply” [376].[43]The proper use of the visitor permits to park on the street was not however clarified at that time as part of the new arrangements and at no time was there a specific written policy related to their use.[44]Although the Claimant had commuted to work when parking was free, she did not routinely do so after 2010 when the new system was implemented, although she continued to do so intermittently, particularly on days when she was required to do client visits. On those occasions, when parking her car near the office she would mostly utilise the free parking but from time to time would use the visitor parking permits.[45]The Claimant’s understanding as to the use of the visitor parking permits was that in addition to using the permits to visit clients, it was acceptable to use them adjacent to the office in any of three circumstances:(1) When she had been using her car for client visits and also needed to park at the office;(2) When she reasonably anticipated using her car to undertake client visits and also needed to be able to park at the office the remainder of the day;(3) When she was working late and there was a risk to her safety if her car was not parked close to the office.[46]Her understanding of this acceptable use derived from the practice followed under her manager Ian Hussain over an extended period. In his evidence to the Tribunal, he confirmed his understanding of when it was acceptable to use the permits and his understanding was very closely aligned with that of the Claimant set out above. Other officers had also used the permits in this way.[47]Dave Worth’s understanding of the acceptable use of these visitor parking permits was very different. The permits represented council money, which was public money and a scarce and valuable resource. He considered their use should be limited to circumstances where staff were having to park, on council business, away from the office and where no cheaper means of parking (such as an estate permit) was available. He did not consider that there was any legitimate reason why a staff member would use them to park near their primary office as there were other parking options, including short term arrangements which could be put in place at short notice when required and which would cover those circumstances outlined by the Claimant. Also, because the majority of staff were required, one way or another, to pay for their parking the majority of the time if they were commuting to work and parking near the office.[48]This was also a view also shared by other officers including Sue Brooks-Hunte and the Claimant’s line manager, Paula Jameson. However, at no time were Paula Jameson’s views on the acceptable use of the permits communicated to the Claimant. There were no specific discussions regarding use of the permits between the Claimant and Paula Jameson when the Claimant transferred to being under her management or subsequently. The need for such a discussion never arose because the Claimant did not need to ask Paula Jameson to purchase any permits for her to use. This was because by November 2019 the Claimant had not exhausted her existing historical supply of permits provided to her by her previous manager, Mr Hussain.[49]As a result of the information provided to him by Ghazell Nasir, on 25th November 2019, Dave Worth took a walk around the streets local to the Claimant’s office and saw the Claimant’s car parked in a nearby street, Oakhill Place, displaying a visitors permit scratch card. The same day he contacted South West London Fraud Partnership (“SWLFP”) and asked them to investigate the Claimant’s car parking. This was a reasonable step to take, and an appropriate one, under the Respondent’s policies given Dave Worth’s understanding of that there could be no acceptable or legitimate use of the visitor parking permits proximate to the office. He considered what he had seen to be a very serious matter concerning the misuse of council property for personal gain, which amounted to fraud and dishonesty and was a serious offence under the Respondent’s disciplinary policy.[50]SWLFP duly commenced an investigation which included surveillance of the Claimant’s vehicle on a number of days. In addition to the reported sightings by Dave Worth and Ghazell Nasir on 22nd and 25th November 2019, the Claimant’s car was also seen by SWLFP parked near to the office whilst displaying visitors permits on 25th November 2019, 26th November 2019, 27th November 2019, 28th November 2019 and 29th November 2019.[51]The Claimant admits that she used the visitor parking permits to park her car close to her primary office on these dates but asserts that she did so legitimately in accordance with her understanding of the accepted use of the permits.[52]The Claimant’s case throughout has been that during this period she was working extremely hard and was generally working long hours. She was working particularly on the case of the two elderly brothers which had taken a more serious turn when they were evicted from their longstanding accommodation on 27th November 2019. In the run up to, and following, their eviction there were difficulties in relation to furnishing at short notice the new permanent accommodation found for them. Also, around this time there were serious issues with the health of the brothers which resulted in one of them being found in a coma and admitted to hospital and information was given which raised concerns that the other was not eating properly in the temporary accommodation into which the brothers were placed pending their permanent re-housing. There were also concerns about the temporary accommodation itself.[53]Around this time the Claimant received reports from other officers regarding suicides of vulnerable individuals in similar circumstances to those of the two brothers, which caused her to be extremely worried for the brothers’ welfare.[54]It was under those circumstances that the Claimant made the four disclosures which were found at the previous hearing to be protected disclosures by the Tribunal and which are set out at paragraph 4 above.[55]On 24th December 2019 SWLFP produced a report [346-354]. That report was premised on the information provided to SWLFP by Dave Worth, namely that there was no legitimate use of the visitor permits to park near the office. In addition to dates already referenced at paragraph 50 above, the report also identified the Claimant’s car as having been seen on google view parked near the office and displaying a visitor permit in March 2018 and noted that on a number of other historic occasions the Claimant had received PCN’s for incorrect use of visitor permits in vicinity of the office. The evidence of additional historic use prior to November 2019 ultimately formed no material part of the subsequent events and were not relied on as part of the reasons for her dismissal and as such I did not consider them further.[56]SWLFP investigated the origin of the permits used by the Claimant. The remaining books of passes turned over by the Claimant to SWLFP were found to have been issued in 2007 and 2013. The pass used on 29th November 2019 had been issued to Ian Hussain in March 2016 and paid by internal transfer [352].[57]As part of the investigation conducted by SWLFP, and referenced within the report, a PACE interview took place with the Claimant on 17th December 2019 which the Claimant attended with a solicitor present. On the advice of her solicitor, the Claimant made no comment in respect of the questions posed but submitted a written statement [257-259]. Within that statement she did not seek to justify her use of the permits on the specific dates in November 2019 other than in very general terms.[58]In conclusion, the SWLFP report recommended considering formal disciplinary action.[59]Following the report the Claimant was suspended on 29th January 2020 and Sue Brooks-Hunte was appointed to undertake a disciplinary investigation of the Claimant in relation to her use of the permits.[60]Much of the rest of the history of this matter is not particularly contentious.[61]Sue Brooks-Hunte interviewed the Claimant on 10th February 2020 whilst the Claimant was accompanied by her union representative, Sonya Davis. She also made a number of other enquiries, primarily interviewing other officers. She then produced a report [332-345 & appendices] including both her investigations and her findings.[62]The report makes specific reference to Claimant stating that she had raised issues with a number of managers in departments and her hope that the investigation had not been triggered by those complaints [342 at 29]. It does not specifically mention the disclosures (those at paragraph 4 above) that the Claimant had made which have been found to be protected. The report shows that the Claimant’s concerns were not investigated by Sue Brooks-Hunte as they were not considered part of investigation [342 at 29].[63]Nor did Sue Brooks-Hunte make more than brief enquiries by interrogating the Claimant’s case notes ascertain what the Claimant was doing on the dates in question and whether she was using her car. She did not ask the claimant to explain her precise whereabouts and work actions or ask other staff members if they knew what the claimant was doing and whether she was using her car for work on those dates.[64]Sue Brooks-Hunte also took no steps to interview the Claimant’s former manager, Ian Hussain, or ascertain whether the Claimant’s assertions as to the established custom regarding use of the permits was correct. She did confirm that the permits used by the Claimant had been purchased by Mr Hussain and that Mr Hussain had allowed staff to use the permits to park at work when conducting visits [339]. Nevertheless, she concluded in respect of the Claimant’s assertion that she had had the permission of her previous manager that “It is evident there has been a deliberate attempt to misrepresent the facts and divert her employers’ attention.”[65]In summary, Sue Brooks-Hunte concluded that she was satisfied that the Claimant had used her car to commute to work and used visitor permits on at least 9 occasions to park at a designated place of work and avoid paying parking charges and that she had therefore used council property for monetary gain. The 9 occasions included the historic dates and most of the dates in November 2019 but did not include 28th November 2019, as for that date she had located evidence that the Claimant had indeed used her car for work purposes and undertaken council business using it.[66]Sue Brooks-Hunte considered that the facts she had found called into question the Claimant’s integrity and may amount to a breach of paragraphs1.1 to1.2 and 13.1 to 13.3 of the Code of Conduct for Employees February 2019 [344].[67]By letter dated 4th March 2020 the Claimant was asked to attend a disciplinary hearing on 16th March 2020. The Claimant was told that the purpose of the hearing was to consider the allegation that the Claimant used Council property for monetary gain, namely visitors parking permits to obtain free parking whilst attending work at the Putney Bridge Road office. She was warned that if the allegation was found proved it could amount to gross misconduct and could lead to dismissal. She was offered the opportunity to have witnesses attend or to call witnesses, advised of her right to be accompanied and informed that she had the opportunity to provide a written statement in advance. The letter also set out the process which would be followed [330-331] although there was a subsequent agreement to depart from the usual procedure and to permit the Claimant to submit her statement on the day of the hearing rather than in advance [471/474/574].[68]In the event the disciplinary hearing did not take place on 16th March 2020 but was postponed and ultimately took place over two dates. The hearing started on 29th May 2020 but was adjourned to 10th June 2020 due to lack of sufficient time on 29th May 2020. In total, it was a fairly lengthy hearing.[69]There are 2 versions of the detailed notes of those hearings. The Respondents original version, taken as a transcript of a tape recording of the hearing, at [476- 502] and [543-555]. A further version at [503-537] and [556-571] has been annotated by the Claimant. In the event nothing really turns on the difference between these versions.[70]I note that the backdrop to the adjournment of the disciplinary hearing was the developing COVID 19 pandemic in March 2020 and the countrywide lockdown imposed on 23rd March 2020 which may have had a bearing on the length of the postponement delay.[71]At the start of the hearing on 29th May 2020 [476-502] Mr Algar (the disciplinary officer) set out the procedure he would be following, informing the Claimant among other things that if he found the allegations proved, he would consider her employment record and give her an opportunity to explain any mitigating circumstances before adjourning again to decide on sanction [477].[72]During the hearing Mr Algar took the contents of the report of Sue Brooks-Hunte as proved and required the Claimant to disprove them. However, when the Claimant sought to question the extent of the investigation which led to the report, he shut her down on numerous occasions. For example [482 at 112]: “The evidence is laid out, what you are doing is questioning the investigation process not the contents of the report. If you have got questions ln the content of the report”. Also, at [482 at 114] : “so far all your questions have been around the fact that you think the investigation is flawed. I will take it as read that the investigation was done properly in the absence of any evidence from you. So, if you could confine the focus of your questions to the evidence not the nature of the investigation.” To which Claimant replies [482 at 115]: “OK because as you know I don’t have access to my systems, my computer, so I have to rely on SBH (Sue Brooks-Hunte) to make the enquiries.”[73]At other stages during the hearing Mr Algar similarly seeks to shut the Claimant down when she seeks to challenge the contents or the manner of the investigation or the scope of the investigation. For example [483 at 123] Mr Algar says: “I am taking the report as read it has been done accurately and properly and what I said at the outset, your questions should relate specifically to the contents of that report, not how it was prepared.”[74]A further example of the Claimant’s being shut down and not allowed to ask potentially material questions which related to the nature of the investigation appears at [483 lines 129-130].[75]Mr Algar also assumed that all witnesses who had provided statements were honest [478 at 20] (even if they had refused to attend the hearing to be challenged on their evidence).[76]During the hearing the Claimant clearly stated her position that there were gaps in the investigation. For example, in questions to Sue Brooks-Hunte the Claimant stated that she did not record visits, but she spoke to officers who knew she was undertaking client visits on the relevant dates [483 at 138]. Sue Brooks-Hunte did not ask the officers about that.[77]This may have been because Sue Brooks-Hunte quite clearly took the view, indicated in her evidence to the disciplinary hearing and repeated in her evidence to the Tribunal, that if it wasn’t written down in the case notes it simply did not happen: “when it comes to case notes I have them here if it wasn’t written down it didn’t happen” [483 at 139].[78]It may have been a procedural breach of the Respondents’ policies or procedures for the Claimant not to write all her actions in the case notes but this dogged insistence that if it was not written down there it did not happen indicated that Sue Brooks-Hunte, the investigating officer, had a closed mind as to whether there was any possibility that the discrepancy between the Claimant’s account and the written records in this case might have been a deficiency in respect of the recording not an inaccurate account of what actually occurred.[79]In effect, what the Claimant was repeatedly saying, or trying to say, during her disciplinary hearing was that there was evidence which had not been uncovered because of the scope and content of the investigation and that she could not present that evidence herself.[80]As a result of being shut down, the Claimant was prevented during the disciplinary process from challenging the scope or nature of the investigation and was therefore unable to effectively challenge its conclusions.[81]Mr Algar also adopted what I consider to be an unduly formulaic attitude to the hearing which resulted in him neither hearing nor understanding the Claimant’s case.[82]He placed a burden on her to disprove the allegations rather than requiring the misconduct that was alleged to be proved by the Respondent. He then made it impossible for her to do so by his rigid view that the misconduct had been proved by Sue Brooks-Hunte’s report and by his refusal to allow any challenge to the scope or nature of the report.[83]Following the adjournment of the disciplinary hearing, by which time it had become clearer to the claimant that there was an issue about what she was doing on the days in question, the Claimant sought to put further documentary evidence before Mr Algar at the reconvened hearing on 10th June 2020. Although Mr Algar admitted a small number of additional documents at the hearing on 10th June 2020, I am satisfied by the Claimant’s evidence, which was not in my view seriously undermined by anything said by Mr Algar or by the contents of the transcript of recording (now agreed in respect of that portion at the end of the hearing on 10th June 2020) [553 at 127-129] that he refused to allow her to submit her detailed statement along with a number of exhibits which she wished him to consider.[84]During both days of the disciplinary hearing, the Claimant had made numerous references to her statement and to the documents appended to the statement that she wished to rely on. It does not appear that during the hearing that Mr Algar either followed that up and asked her to elaborate or asked where that document was.[85]When she sought to provide him with the statement at the end of the hearing, he took the unduly rigid view, based on the Respondents disciplinary Code of Practice [872 at 2.9] that all documents should have been submitted in advance of the hearing [817 at 96] notwithstanding his previous agreement to allow her to submit it on the day as an adjustment [474]. The Claimant had not submitted the statement in advance because she had been advised by her union representative and also by the HR department of the Respondents in e-mail dated 27th May 2020 [471/574] that she could submit her statement on the day of the hearing.[86]Following the hearing the Claimant sent her statement and those further exhibited documents to Mr Algar by e-mail at 20:47 on 10th June 2020 [573], some 9 hours after the conclusion of the hearing. I accept her explanation that the delay between the end of the hearing and the sending of them was due to having to access in difficult circumstances an electronic copy of them to send via e-mail. Mr Algar did not consider those documents before reaching the decision to dismiss the Claimant [572-573, 695, 732-733 and 842].[87]As a result of the matters set out above, the disciplinary hearing was not one which enabled the Claimant to appropriately address the allegations against her.[88]On 12th June 2020, after having given oral evidence to the disciplinary hearing on 10th June 2020, the Claimant’s witness Alex Jones sent an e-mail to Sue Bradbury seeking to clarify some of the evidence he had given at the hearing as his memory of some matters was shaky and he had had looked back on e-mails and file notes to clarify it [689]. The contents of that e-mail went some way towards bolstering the Claimant’s case as to the work she was undertaking during the relevant period, but this document was also not considered by Mr Algar before he took the decision to dismiss her.[89]By letter dated 17th June 2020 the Claimant was informed of the outcome of the disciplinary hearing [694-695]. Mr Algar found that on the balance of probabilities that the Claimant had used council visitor parking permits on 22, 25, 26, 27 and 29 November 2019 to park near the office when there was no legitimate work reason for her to do so. He was satisfied that she had used council property (the visitor permits) for monetary gain and had wilfully and knowingly used them on at least 5 occasions, which amounted to a serious breach of the Council’s Code of Conduct and the Disciplinary Code of Practice. He took the view that these matters were so serious that they broke the trust and confidence between the Claimant and the Respondents and called into question the Claimant’s fitness to do her job. He also concluded that there was a potentially damaging effect on the reputation and integrity of the Respondent if her conduct became known. Accordingly, he found that on the balance of probabilities she was guilty of gross misconduct and should be summarily dismissed. He confirmed that her last day of work was 17th June 2020. She was given the right to appeal.[90]The Claimant then appealed that decision by e-mail dated 1st July 2024 [698-699] containing a completed appeal grievance form GT4 [700] and a statement of appeal [701-707] as well as various other documents.[91]That appeal was heard by Mr Reilly who sought and obtained a report from Mr Algar regarding the dismissal/disciplinary process. [756-764]. As part of that report, and in respect of the appeal, Mr Algar noted that he had (subsequent to the dismissal) reviewed all the additional documents sent to after the disciplinary hearing including the Claimant’s statement, attached documents and the e-mail of Alex Jones, but that they did not change his view as to the outcome [758 at 2.6 and 823 at 221].[92]The appeal hearing took place on 15th October 2020 [810 - 829]. The Claimant was limited to raising matters that were clearly in her original grounds of appeal [823, 814] and was not permitted to elaborate upon them. The Claimant was permitted to introduce an amount of new evidence (namely e-mails, a letter from the warehouse she visited regarding furniture for the brothers, a letter from Councillor McCleod and a statement from Ian Hussain).[93]Ultimately the appeal hearing was unsuccessful. By a letter dated 21st October 2020 [842-843] Mr Reilly wrote to the Claimant to advise her that her appeal against the dismissal decision had not been successful, and the dismissal would stand. He gave reasons for decision, covering those matters which the Claimant had raised in her appeal. Mr Reilly upheld the decision of Mr Algar for essentially the same reasons as Mr Algar.[94]At the time of her dismissal, the Claimant had been continuously employed by the Respondents for 17 years and had no recent job-hunting experience. Additionally, the COVID 19 pandemic was still having a significant effect on the whole country and lockdowns were still in place. This added a level of complexity to the Claimant’s ability to search for an obtain replacement employment. The COVID19 pandemic continued to have a significant effect on normal working well into 2021.[95]Following her dismissal, the Claimant was in shock and was aggrieved at what she perceived was an unfair process and dismissal. She initially focussed her efforts on appealing the decision. She also had health problems in August 2020 which she attributes to stress arising from the disciplinary process and dismissal. As a consequence, she required a period of time to come to terms with her dismissal and update her CV before she was able to begin looking for work. The Claimant applied for, and received, universal credit and was placed in the ‘work group’.[96]She did not receive an agreed reference from the Respondents until November 2020 and was concerned that her dismissal, and the details of it, would hinder her re-employment prospects.[97]She sought assistance to retrain, update her CV and interview help, however assistance was not available for several months. In February 2021 she was accepted onto the New-Enterprise Allowance six-month programme and was no longer required by the DWP to look for work as the focus of the programme was to start her own business. However, this did not generate any income for her as the business was not registered.[98]Additionally, in January 2021 she applied instead to become a foster carer, which application was approved in September 2021 following an interview. During the interview she explained the termination of her job with the Respondent as being due to a relationship breakdown in the workplace. The first child was placed with her on 26th October 2021, and she considered looking after this child akin to a fulltime job. Her plans to foster a second child were disrupted by her health in December 2021 but she started caring for a second child on 1st August 2022 and finally started her own business importing and exporting goods in December 2022.[99]In fact, based on the Claimant’s evidence she did not apply for any jobs following her dismissal. In particular she considered it to be hopeless to look for a job of a similar nature in light of her dismissal and the reasons for it.[100]No evidence was placed before me by either party as to the availability or suitability of alternative jobs that the Claimant could have applied for by way of details of advertised jobs or otherwise. The only evidence relating to mitigation of loss was that of the Claimant herself contained in her witness statement (from paragraphs 110 to 123) and elaborated on in her oral evidence under cross-examination.[101]She gave evidence to the effect that there were no jobs available but gave no evidence as to the searches she undertook to determine this and although she would have been required to keep a DWP work search journal the evidence she provided did not include this. Having considered this lack of evidence, the evidence of her concerns, the evidence of the steps she did take and her admission that she did not apply for any jobs, I concluded on the balance of probabilities that she took no concerted steps, and possibly no steps at all, to seek alternative employment. Conclusions Unfair dismissal Reason for dismissal[102]I am satisfied on the evidence that I heard that the Claimant was dismissed for conduct reasons, namely her use of the visitors parking permits.[103]Mr Algar was clear about why he dismissed the Claimant and no evidence I received undermined his clear evidence. He essentially accepted that it was the Claimant’s understanding that there were some occasions where use of the visitors parking permits in the locality of the office was permissible, and that her conduct should be judged on her understanding, as opposed to David Worth’s view, that there were no circumstances in which it was legitimate to use visitors permits to park near the office. However, he ultimately concluded that he was satisfied that the Claimant had used visitor permits to park near the office on 5 occasions in November 2019 when there was no legitimate work reason for doing so, even within the parameters of her own understanding as to acceptable use, and that she wilfully and knowingly used the permits to obtain free parking for her own personal use.[104]He did not rely on the occasion on 28th November 2019 when he was satisfied that she had been using her vehicle for work purposes and then parked near office. He also did not take into consideration the earlier historic allegations that had been included in the SWLFP report.[105]He was clear about his view as to the severity of using the visitors permits in circumstances where they were not being used for work purposes, concluding that such use constituted a misuse of council funds, namely public money and was a matter of dishonesty that had broken the trust and confidence of the Council to such an extent that it called into question her fitness to undertake her role. He considered that the dishonesty and breach of trust amounted to gross misconduct which merited summary dismissal. This was a view shared by all the senior officers involved in this case including Dave Worth and Brian Reilly (the appeals officer) and was not seriously disputed by the Claimant.[106]Although the Claimant has sought to suggest that this was simply a manufactured reason concealing the true reasons for dismissal, which she says were the protected disclosures, or alternatively her complaints regarding the disclosure of information and loss of adoption documents, I do not find that to be the case.[107]It is for the Respondent to prove the reason for the dismissal and the Claimant is not required to prove that her dismissal was a result of protected disclosure. However, where, as here, she is asserting that the protected disclosure were the reasons, she must provide some evidence supporting a link between the disclosure and dismissal. The only evidence offered amounts to no more than coincidence, and the Claimant’s supposition and suspicion.[108]Neither the protected disclosures nor the Claimant’s complaints about disclosure of information and loss of adoption documents can have caused the fraud investigation as the fraud investigation into the Claimant’s use of the parking permits started before they occurred. The disciplinary process was the natural progression from the investigation.[109]Further, all of the Respondent’s officers concerned in the disciplinary process deny knowledge of the disclosures. The Claimant has offered nothing more to support her own belief that they did than the opportunity of day-to-day contact with persons who were aware of the disclosure and her assertion that they must have known because her disclosures were so serious that they should have been escalated to more senior management.[110]The evidence does not support that. The Respondents’ witnesses’ evidence was clear. Even when aware of the disclosures through the Tribunal process, they were not considered to be so unusual or out of the ordinary as to require escalation to Dave Worth. I accept the evidence of the two officers to whom the disclosures were made that they did not at the time consider them to be protected disclosures or so serious or out of the ordinary as to require escalation.[111]The Claimant sought to persuade me that because Dave Worth accepted that he should be notified of deaths of clients he must have known of disclosures. I do not accept that submission. The Claimant’s case of the two brothers did not in fact involve any death and was not connected to those which did. At worst, the Claimant’s case concerned some risk of future death. I heard no evidence to support the suggestion that some risk of future death (something which was undoubtedly more commonplace) was a matter which had to be, and was expected to be, escalated in the same manner as an actual death.[112]There is simply no credible evidence that either Mr Algar, Dave Worth, Sue BrooksHunte, or Brian Reilly knew of the protected disclosures made by the Claimant or of her complaints and I accept their evidence that they were not.[113]The Claimant also put forward another, even more speculative, suggestion as why the Respondents may have wanted to dismiss her, namely a historical issue between herself and Sue Brooks-Hunte regarding rotas, which I reject. Although Sue Brooks-Hunte was aware that there had been an issue between herself and Claimant some years ago related to rotas, I accepted her evidence to the effect that this was not a big issue and was one which was readily resolved. Once raised with her the Claimant had been removed from the rotas. I didn’t receive any credible evidence that convinced me that there was any underlying animosity towards the Claimant either because of that or the Claimant’s complaints that Sue Brooks-Hunte was the only one able to specify her place on the duty rotas, which it is not clear that Sue Brooks-Hunte was even aware of. I found no evidence other than the Claimant’s own, which I reject as being no more than unsubstantiated speculation, that Sue Brooks-Hunte was biased against the Claimant or partial. Neither Sue Brooks-Hunte’s evidence nor the face of the report supported any such suggestion of bias or partiality against the Claimant. Although there were some minor factual errors in the report these arose from errors in the SWLFP report. Other flaws regarding the scope of the investigation arose from her rigid views as to recording/case notes and legitimate use of the permits.[114]For the reasons given above, I am satisfied there was no nexus whatsoever between either the protected disclosures and the disciplinary process and dismissal, and that the Claimant was not dismissed because of them. I am also satisfied that she was dismissed for conduct, namely her use of the visitors permits, a potentially fair reason.[115]Accordingly, the Claimant’s claim for automatic unfair dismissal must fail but to determine her claim for ordinary unfair dismissal there are other factors I must consider and determine. Genuineness of the Respondent’s belief[116]I considered the genuineness of the Respondent’s dismissing officers’ belief in the conduct which I have found led to the Claimant’s dismissal. Having heard from the Respondent's witnesses orally, as well as receiving their written evidence, I find that all the Respondent’s relevant management, held a genuine belief that the Claimant was guilty of misconduct.[117]Their evidence was clear, consistent and unequivocal as to the reason why she was dismissed and why the appeal was not upheld and there was a clear objective basis for that belief.[118]The Claimant’s use of permits on the dates in question was not disputed. She accepted that her car was parked displaying those permits in the vicinity of the office on those days. Additionally, there was a lack of the expected records to show the work use (visits etc) asserted by the Claimant or the Claimant’s whereabouts on the specific days when the permits were in use. It was evident from the Respondent’s witnesses’ evidence and the contents of the documents within the bundle that the officers’ views as to the unlikelihood of such records not being kept heavily influenced their conclusion that the Claimant had not been using car for work purposes on days in question.[119]As Sue Brooks-Hunte put it a number of times: “if its not recorded, it didn’t happen”. There is some force in that. There were good reasons why records were required to be maintained and kept meticulously and even Mr Hussain, who gave evidence in support of the Claimant, could not explain to me why the Claimant would not have kept such written records given the level of importance of the work she claimed to be doing, even in relation to the NGS visits.[120]It was also abundantly clear that even a small misuse of council funds was considered to be a very serious matter by all the dismissing officers. Both Mr Reilly and Mr Algar agreed that even a single instance of inappropriate use of even the relatively low value permit was considered so serious that dismissal would have been the consequence. This was because they considered it to be dishonest and a breach of the trust and confidence between the Respondents and the Claimant which called into question her fitness to undertake her role and potentially undermined the reputation of the Respondents were it to become more widely known.[121]I did not find any credible and reliable evidence which contradicted the evidence of the Respondent’s witnesses that it was (and remains) their genuinely held belief that the Claimant was guilty of the misconduct for which she was dismissed.[122]Notwithstanding that I accept that the belief was in the Claimant’s misconduct was genuinely held I must also look at whether that genuine belief was reasonable held. Investigation and procedure[123]I must also consider therefore whether, at the time the genuine belief as to the Claimant’s misconduct was formed, the Respondent had carried out as much investigation into the matter as was reasonable in the circumstances and had engaged in a reasonable disciplinary process.[124]The allegations made against the Claimant were serious ones amounting to gross misconduct and justifying summary dismissal under the Respondent’s disciplinary policy if proven. Additionally, a dismissal for this type of dishonestly was potentially career ending, or at least highly damaging to the Claimant’s career prospects within the industry should it become more widely known.[125]The Claimant had a lengthy and unblemished disciplinary record of employment with the Respondent of nearly 17 years of continuous working.[126]Further, the Respondents in this case are large government organisations, with an extensive management structure, as indicated by the status and job descriptions of the witnesses who gave evidence on behalf of the Respondents. They also have extensive administrative resources available to them, as evidenced by the documentation submitted to the Tribunal, including the recording and transcription of various hearings during the disciplinary process, the existence of a written disciplinary policy and other policies and the referral to an external fraud investigator at an early stage.[127]I have the band of reasonable responses and these factors clearly in mind in reaching my decision as to whether the investigation and the disciplinary process followed was reasonable in the circumstances.[128]Taking all the above circumstances and the facts that I found into account, I find that there were deficiencies in the extent and quality of the investigation conducted by the Respondents.[129]Both SWLFP and Sue Brooks-Hunte approached their investigations from the perspective of there being no legitimate reason to use the permits to park outside the office. That was maintained all the way through the disciplinary process prior to the disciplinary hearing. It was only Mr Algar who accepted for the first time at hearing stage that there may be a different interpretation of legitimate use against which the Claimant’s actual conduct should be judged. The consequence of this was that neither SWLFP or Sue Brooks-Hunte’s investigations focussed on the work the Claimant was undertaking or whether she was using her car for work purposes on the days in question.[130]Although Sue Brooks-Hunte did undertake some degree of investigation into whether there were records to support Claimant’s account of work usage on those dates when she had been seen using the visitor permits, neither Sue Brooks-Hunte nor SWLFP’s investigation looked far, if at all, beyond the documentary records. No witness was particularly asked if they knew what the Claimant was doing on the specific dates in question and whether they knew whether the Claimant was using her car for work purposes on those dates or generally around that time. Neither was the Claimant asked to give a specific account as to what she was doing on those dates.[131]The Claimant volunteered only a very general account as to her movements, what she was working on and the use of her car and there was no more than general discussion with her regarding her work pattern over that period.[132]As a consequence, there was limited, or no, investigation of the Claimant’s assertions that she had told people about the visits she was making, even though she had not recorded them in writing, and no investigation as to whether there was a practice of non-recording which might have explained the lack of the expected records.[133]In addition, for the reasons already set out above, during the disciplinary hearing, and having effectively accepted that there were occasions where the permits could legitimately be used in the locality of the office (or at least that it was the Claimant’s understanding that they could and that her conduct should be considered in light of her understanding), Mr Algar effectively reversed the burden of proof and required the Claimant to prove that she had used her car for legitimate work purposes rather than requiring the Respondent to show that her use of the permits was not legitimate even on the basis of the Claimant’s understanding.[134]It is clear from his evidence that had the Claimant been able to satisfy Mr Algar that she had used her car for work purposes on all the specific dates when the permits were used, that she would not have been dismissed. His own evidence was to that effect.[135]I looked carefully at whether the Claimant should have known from the outset of the investigation that she needed to provide that sort of evidence, particularly in the absence of any documentary records as to what she was doing on the dates in question and considered whether she wilfully failed to do so. There is some force in the Respondent’s submissions that she should have understood that this evidence was required and that she failed to address it. Indeed, on the face of it, it seems entirely incredible that facing an allegation of fraud and with her own understanding that it would be fraud if she was not using her car for work purposes on the given dates that she did not set out in some detail what work purpose she was using the car for on those dates.[136]However I am persuaded by Claimant’s evidence, which was given repeatedly and consistently in cross-examination despite the nature of the questioning differing, that she did not in fact identify that she may have to provide detailed information as to the work purposes she was using her car for on those dates. I accepted her evidence that she did not understand this because she did not think that there could be any question at all about her use of the car for work purposes on those dates given what was known about her general work undertaken on the brothers’ case in that period. It did not appear to occur to her that her assertion that she was using her car for work purposes may not have been believed or accepted. Further, she was entirely focussed on trying to demonstrate that there was a basis for her assertion that there were circumstances where it was legitimate to use the permits in the locality of the office as a result of custom and practice, something the Respondent’s witness did not accept.[137]For the reasons set out above, I find that the investigation itself was coloured by the Respondent’s officers view that there were no legitimate reasons for using the permits local to the office and so was fairly cursory into whether the Claimant was using her car for work purposes. It only really looked at the documentary evidence and the investigations officer, Sue Brookes-Hunte was blinkered to the possibility that the documentary records were incomplete by her attitude that if no records existed the event did not happen.[138]In my view a reasonable investigation would have sought to verify the Claimant’s explanation for the lack of documentary evidence showing her visits on those specific dates or during that specific window and her assertion that people in the office did know both of her whereabouts and use of car for work purposes. No reasonable employer of the size and with the resources of the Respondent would have failed to make such enquiries.[139]It was no part of the reason for the disciplinary process or the Claimant’s dismissal that she had failed to keep the expected records. That the records were incomplete should have been clear on proper investigation as they did not show the extent of the work that other evidence (including the disclosures and the document from the furniture warehouse) showed she had clearly undertaken during the relevant period.[140]There was undoubtedly some material which suggests that the Claimant had indeed been using her car for a variety of work purposes over the relevant period (if not necessarily on the specific dates in question). Alex Jones’ evidence in particular but also the documentary evidence that she had at some stage visited the warehouse where she sourced some of the furniture for the brothers.[141]The Claimant had consistently indicated that she did not record all visits and actions and particularly not some of the type she was making in respect of sourcing furniture, and that she did not follow the required reporting procedure the Respondent’s witnesses expected. That was supported to some extent by the evidence Mr Hussain gave as to his own practices and to a lesser extent by Alex Jones who also confirmed that not all visits would be recorded.[142]The failure to properly investigate the Claimant’s assertions as to what she was doing for work or her use of her car for those purposes on the dates in question was compounded by the Respondent’s failure to make it clear to the Claimant until 29th May 2020 (the first of the disciplinary hearings) that this would be an issue. By that time, it was too late. There were no documents, or only very limited nonspecific documentary records, that would support her case, and over 6 months had elapsed since the dates in question. The time lapse had degraded the quality of the evidence that might earlier have been available. The memories of those persons who the Claimant had told what she was doing had inevitably faded as Alex Jones’s evidence to the disciplinary hearing, his subsequent e-mail to provide further information and the evidence he gave to the Tribunal, in particular his lack of ability to recall specific dates, amply demonstrated.[143]The documents which could at that stage be recovered by Claimant and which she submitted during the second half of the disciplinary hearing on 10th June 2020 and with her witness statement tended to support her assertions to some degree but did not allow identification of the specific dates on which her car was used.[144]Had a thorough investigation, correctly directed, been undertaken reasonably contemporaneously, relevant people might have been able to recall that she had said the Claimant had told them on the specific dates that she was going on a visit.[145]The deficiency of the investigations I have set out were in my view also compounded by other failures in the disciplinary process itself such that it is my view that the disciplinary process itself was not reasonable as it was not fair to the Claimant.[146]The process was conducted rigidly and formulaically and along a conveyor belt method which, whilst strictly according with both the process of the Respondents set out in their disciplinary policy and, broadly, the ACAS Code and what is generally understood to be required nevertheless in this case failed to deliver a fair hearing.[147]During the disciplinary hearing the Claimant repeatedly sought to challenge the investigation process but was prevented from doing so. Her concerns and challenges should have been considered and explored. If, as a result of deficiencies identified by those challenges, it was considered necessary, the investigation stage should have been reopened.[148]The Claimant’s attempted challenges to the nature and scope of the investigation should have been considered particularly carefully when it was clearer that the focus of the investigation, and of the initial part of the disciplinary hearing had been on the question of whether there was any legitimate reason for parking outside the office and whether custom and practice suggested that there was (as opposed to the very rigid views of Sue Brookes-Hunte and Dave Worth that there was no such legitimate purpose) and after Mr Algar had decided to proceed on the basis of the Claimant’s understanding.[149]Once the focus of the disciplinary process shifted to the question of what the Claimant was in fact doing on those days when the permits were used there should have been some recognition of the fact that no investigation had clearly and comprehensively looked at that question and that the Claimant herself might not have understood that she needed to provide evidence regarding this prior to the hearing on 29th May 2020. In fact, the way in which Mr Algar shut down the Claimant’s attempts to challenge the scope and nature of the investigation closed his mind to the possibility that she was not aware of what she needed to prove and that perhaps some evidence that should have been available to him was not.[150]He should also have considered whether to adjourn and undertake further investigation at the stage when he was presented with the Claimant’s detailed statement which included (in Schedule 4 [674-678]) the first detailed account of the Claimant’s movements, whereabouts and what she was doing on the various dates in question and she also indicated within boxes in the Schedule the evidence that she says would support her movements. From this it should have been apparent that there was some evidence that could potentially have been available to support her assertions which had not been collected at that point and which she did not have access to provide herself.[151]It was by no means conclusive at the time the disciplinary hearings took place that further investigation was irrelevant. Nor did it follow that the lack of records was conclusive as to the fact no visits had taken place or that the Claimant was not in fact using her car for one of the acceptable work-related purposes and visits that she described. The Claimant’s explanation for the lack of records and account as to the work purposes for which she used her car should not have been dismissed without proper investigation.[152]The lack of records in relation to actions that it was clear from other records that the Claimant had undertaken should have alerted the Respondent to the possibility that there may have been a deficiency in the records rather than that the Claimant was not giving a true account of her work related car use.[153]However, Mr Algar did not consider whether to adjourn and undertake further investigation at that stage as he did not accept the statement and did not consider its contents before reaching a decision to dismiss.[154]In the circumstances I have set out at paragraphs 83-86 above, namely that the Claimant had referred to her statement during the hearing and tried to submit it during the hearing as she had been informed that she could, but he had failed to consider it was also unfair and unreasonable. I accept that he did consider the statement prior to the appeal stage and the unfairness of failing to accept and consider the statement was therefore potentially rectified. However, the failures to consider whether to adjourn and the failure to recognise that there was potentially further relevant evidence that had not been investigated were not. No further investigation of relevant matters took place at appeal stage.[155]I accept that there should be an end to the disciplinary process and that it should be dealt with expeditiously. By the time the Claimant submitted her statement there had already been a lengthy process and a lengthy hearing. However, by that stage the focus had shifted. As a result, I am satisfied on the balance of probabilities that in these circumstances Mr Algar should have reviewed whether the process and investigation to date had been reasonable and fair and all relevant matters considered and he adopted an unfair process that no reasonable employer would have done by failing to do so.[156]There were also other errors within the disciplinary process that I am satisfied led to it being unreasonable and unfair:[157]As set out above, Mr Algar took the contents of the report of Sue Brooks-Hunte as proved and required the Claimant to disprove them. Further, that there was an effective reversal of the burden of proof that the Respondents should have adopted. Mr Algar asked himself the wrong question. He should have asked himself whether it had been proved to his satisfaction that she was not using her car for accepted work purposes. Instead, Mr Algar required the Claimant to prove that she was using the car for work purposes on the days she had used the permits.[158]Mr Reilly fell into same trap. He considered only the Claimant’s grounds of appeal and did not identify the obvious flaws in the investigation or process. Although both Mr Algar and Mr Reilly considered the Claimant’s statement at the appeal stage no further investigations were undertaken and the other deficiencies in the investigatory stage, the disciplinary process and hearing itself as set out above were repeated and potentially vital evidence was not collected. Consequently, this consideration of the statement on appeal did not rectify the mistakes that had already been made and render the process reasonable and fair.[159]In my view that the deficiencies in the Respondents’ investigation and disciplinary process as outlined above made this dismissal unfair.[160]The flawed process adopted in respect of both the investigation and procedure meant that the Respondent did not gather evidence which was potentially highly relevant to whether the Claimant had in fact been using her car for work purposes on those dates.[161]The Respondents cannot rely on their failure to investigate thoroughly to justify their processes and reverse the burden of proof so as to require the Claimant prove that she had used her car for work purposes. Nor can they rely on their failures to render their conclusion that the Claimant was guilty of the conduct for which she was dismissed reasonable.[162]It may be that had Mr Algar or Mr Reilly addressed their minds to the correct questions, and sought and obtained further relevant evidence, that they would have reached the same conclusion on the evidence before them that the Claimant was not using the car for work purposes on the relevant days. However, that is a conclusion that I am unable to reach on the limited evidence before me as a result of the investigative failures set out above.[163]It was not for a deficiency in the records that the Claimant was dismissed and on the evidence I heard I cannot speculate as to what the outcome might have been if it had been the subject of the disciplinary process.[164]In all the circumstances, I’m satisfied that the deficiencies were such that the Respondent could not have had a reasonable belief in the Claimant’s guilt because of the unreasonable process which led to that belief. It therefore follows that for this reason I find that the Claimant was unfairly dismissed. Reasonable belief[165]I have no hesitation in finding that on the basis of the genuinely held belief of the Respondent’s dismissing and appeal officers that the Claimant had not been using her car for work purposes on the specific dates but that she had been seen to have used visitor permits at the office, it was within the range of reasonable responses for the Respondent to characterise that use as misuse of council property and public funds and an act of dishonestly equating to gross misconduct. It would also have been within the range of reasonable responses for the Respondents to conclude that the Claimant’s dismissal was justified notwithstanding that she had almost 17 years unblemished service.[166]However, although the Respondent’s belief was genuinely held, for the reasons set out above I do not consider that it was reasonably held. Contributory Fault[167]I was asked by the Respondents to consider contributory fault and to find that the Claimant contributed to her dismissal as she had parked on the five dates in November 2019 using visitors parking permits for commuting or when she was not using her car for one of the work related purposes she considered acceptable.[168]The Tribunal may reduce the basic or compensatory awards for culpable conduct in the slightly different circumstances set out in sections 122(2) and 123(6) of the Employment Rights Act 1996.[169]Section 122(2) provides: “Where the Tribunal considers that the conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the Tribunal shall reduce or further reduce that amount accordingly.”[170]Section 123(6) provides: “Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”[171]In determining whether any deduction should be applied to either part of the Claimant’s award because of contributory fault, I must first identify what conduct on the part of the Claimant could give rise to contributory fault. I must then also consider whether any such conduct was culpable, blameworthy or unreasonable and whether the blameworthy conduct caused or contributed to the dismissal to any extent.[172]It was accepted by Mr Algar that furniture sourcing and moving furniture would be within the definition of work purposes and it follows that the Claimant would not have been found to have dishonestly used the permits on days when she was undertaking these tasks.[173]There is ample evidence, including the Claimants own account (which I accepted) information provided by Alex Jones and the documentary evidence from the furniture warehouse, that during that late November 2019 period she was using her car on a number of occasions to visit the brothers and their temporary accommodation, for furniture viewing and moving, and also for an NGS visit (albeit one that was not recorded).[174]There is insufficient evidence to establish precisely what dates she used the car for these purposes but there is no evidence that she parked her car in the staff car park or in any of the free spaces near the office on any dates that she used the car for these purposes. No evidence challenged the Claimant’s assertion that she rarely used her car to commute to the office and only did so on days when she needed or expected to use it for work purposes and the fact that she was using permits that had been issued to her by Mr Hussain, who ceased to be her line manager in 2017 (over 2 years before the dates in November 2019) and still had a number of them in her possession afterwards, suggests that it was not a frequent occurrence for her to use the visitors permits simply to commute to the office.[175]In those circumstances, I cannot find that the Claimant was, or was not, in fact using her car for work purposes on the dates in question.[176]Accordingly, as a result of the evidence I heard coupled with the evidentiary deficiencies arising from the investigatory failures and the findings I have made above as to the reasons why relevant evidence was not available, I am not able to identify any culpable or blameworthy conduct on the Claimant’s part that caused or contributed to her dismissal so as to justify the imposition of a reduction in the Claimant’s compensatory award contributory fault. Remedy/Quantum[177]Following the determination of liability, I heard further evidence and submissions in relation to remedy. The evidence on remedy was limited to that given by the Claimant. The Respondent adduced no evidence itself. My factual findings relevant to remedy are as set out at 94-101 above.[178]The parties were agreed as to the amount of the basic award and the remedy issues to be determined by the Tribunal were agreed to be limited to:(i) the rate of pay that should be used for the compensation element of the calculation;(ii) whether the Claimant had failed to mitigate her loss; and(iii) the duration for which compensation should be paid. The rate of pay for the compensatory award[179]In addition to her salary, the Claimant sought to claim an additional loss of £350.00 being the amount she was paid for work that she had previously undertaken for the Respondents in assisting at elections, but which work she did not undertake following her dismissal.[180]The additional work assisting at elections was outside of the employment contract and there was no evidence that she applied for this work but was not engaged. Her contract of employment did not guarantee her such work and not all employees of the Respondents undertook it. I heard clear evidence from the Claimant that the election work was undertaken both by employees of the Respondent and by exemployees of the Respondent and I cannot therefore conclude that the election work and associated fee was a benefit intrinsically linked to the Claimant’s employment. Accordingly, I am not satisfied that the £350 sought by the Claimant should be included as part of the compensatory award.[181]The Claimant’s salary at the date of her dismissal was not in dispute between the parties. However, the Claimant sought to persuade me that the salary that should be utilised for the basis of the compensatory award was not that salary, which was set out in the ET1 and agreed by the Respondent’s in the ET3, but a higher amount which reflected a pay rise. The Claimant asserted that a pay rise had been implemented by the Respondents after the Claimant’s dismissal and backdated to April 2020 both for their continuing employees and for the Claimant. The Claimant appears to have been unaware of the pay rise when the ET1 was presented or until she received a backdated payment in November 2020.[182]However, I heard no evidence (either orally or contained in their statements) from any of the witnesses from either party as to the existence of the pay rise, the amount of the pay rise or the details of it. Nor were the Claimants payslips or any detailed documentary evidence relating to her rate of pay or the pay rise contained in the bundle. The only evidence as to the pay rise was a reference in the notes of the Claimant’s universal credit claim to the fact that she had received backdated pay in November 2020 because of a pay rise dating back to April 2020. This does not specify the amount.[183]In the circumstances I cannot be satisfied on the balance of probabilities either as to the effective date or the amount of any pay increase. I simply had no figures to base the compensatory element of the award on other than the figures set out in ET1 and agreed in the ET3, namely £3,791 per month gross, £2,666 per month net which was agreed by the parties to equate to an annual gross basic salary of £45,492.[184]The parties were agreed that the amount of the Claimant’s pension contributions, which were in addition to her gross basic salary, were £59.48 per week. Mitigation of Loss/duration of the compensatory award[185]The Claimant has a duty to take reasonable steps to mitigate her losses. Whether she has done so or not is a question of fact.[186]The Respondent bears the burden of proving failure to mitigate and there is no corresponding obligation on the Claimant to prove that she has mitigated her loss. Further, there is a difference between acting reasonably and not acting unreasonably. However, if the Claimant chooses to take no steps to look for work, she cannot continue to accrue compensation - Ministry of Defence v Cannock and Ors 1994 ICR 918, EAT.[187]Although the Respondents provided no positive evidence in support of its assertion that the Claimant had failed to mitigate her loss. I heard evidence from the Claimant, contained both in her witness statement and expanded upon in crossexamination, as to the steps she had taken in relation to providing herself with an alternative form of income following her dismissal.[188]On the basis of the Claimant’s own evidence, I am satisfied that she failed to mitigate her loss for the following reasons.[189]Although she claimed that there were no jobs available, her evidence did not offer any basis for this assertion or demonstrate any effort to search for alternative employment. She gave no evidence as to the type of searches she undertook to enable me to rely on her evidence that there were no such jobs.[190]She initially focussed her efforts on appealing her dismissal then suffered a bout of ill-health. However, thereafter she sought to justify her failure to seek alternative employment as arising from her view that it would be hopeless to look for a job similar nature because of her concerns about her reference and not knowing how to explain the circumstances of her departure from the Respondent to a new employer.[191]These concerns did not amount to a reasonable justification of her failure to seek work. She was able to adequately explain her circumstances of departure from the Respondents’ employ to those vetting her suitability as a foster career without disclosing that she had been dismissed for dishonesty or fraud. Although this was a materially different role in some ways, the vetters would have been looking at her suitability, reliability and integrity as well as her skills and qualifications to work with vulnerable individuals.[192]I also do not accept as either credible or reliable the Claimants evidence that there were no other jobs she could apply for or that she could not have got another job because of the manner of her dismissal. She simply did not apply for any other jobs before focussing on the New Enterprise programme and the steps she was taking to set up her own business in February 2021 and on becoming a foster carer from January 2021.[193]I note that her concerns about the reference must have fallen away when she was provided with a reference in November 2020. That reference was in what is now a fairly typical form and did no more than set out the factual basis of the nature and duration of her employment. It did not refer to the reason for her dismissal and goes further than some might in a manner that favours the Claimant by setting out the details of all her various job titles/descriptions and promotions across the 17 years of her employment with the Respondents.[194]In assessing the duration for which she should be compensated, I have taken into account the manner and nature of her dismissal and the fact that she was no doubt in shock when she suddenly found herself dismissed after a period of 17 years continuous and unblemished employment in circumstances she considered to be, and which were in fact, unfair. I accept that she would have required a period of time to get over that and to gather herself before she could begin to look for work and that as a result of her longstanding employment, she had undertaken no recent job searches at the time of her dismissal and required time to compile or re-write her CV.[195]I also accept that the COVID19 pandemic may have added a level of complexity both to job searching and to the jobs that were available in 2020 but note that by the Spring of 2021 the country was beginning to return to greater normality.[196]She pursued her fostering ambitions rather than looking to replace her earnings and it was not until February 2021 that she pursued self-employment by embarking on the New Enterprise Allowance Scheme, which she did not pursue diligently as a result of her fostering and so did not establish her self-employed business and until December 2022.[197]Taking all of the above into consideration, I find that, on the balance of probabilities and had the Claimant taken appropriate steps to mitigate her loss, she should have obtained alternative employment at an equivalent remuneration to the job she lost within about 4 months after she received the reference in November 2020, namely in around March 2021, a total of 9 months after she was dismissed.[198]The compensatory award will therefore be for a period of 9 months post-dismissal. Calculation of the Award[199]After determining the issues set out above as regarding pay rates and mitigation of loss/duration of the compensatory claim, the final figures were calculated with the assistance of the parties and agreed by them as set out in the separate judgment.[200]The parties were agreed that grossing up was not applicable and that recoupment provisions did apply. Although the figures for the amount of benefits received by the Claimant during the relevant period were agreed between the parties, this was not deducted from the award, rather the award was set out in standard form on the judgment as the recoupment is to be determined by the DWP not the parties.[1]The factual background to this case is set out in the written reasons given on 2nd February 2025 (issued on 15th April 2025).[2]The procedural background can be summarised as follows: Date Event Comment 08/09/20 Claim form presented Seeking compensation for protected disclosure detriment and automatic unfair dismissal, alternatively ordinary unfair dismissal. 09/01/23- Preliminary hearing Part heard 10/01/23 02/02/23 Preliminary hearing Concluded 08/02/23 Judgment and written Claimant had made 4 protected reasons on preliminary disclosures. issue Sent to the parties on 09/02/25 17/11/23 Judgment on the detriment Following Claimant’s written claim on withdrawal withdrawal of the claim for detriment 04- Final hearing Oral judgments on liability and 08/12/23 remedy given at conclusion. 11/12/23 Draft judgment forwarded Agreed by both Claimant and to Tribunal Respondent’s representatives. 12/12/23 Short form judgment of the Made in the form agreed between the Tribunal following the final parties. Sent to the parties on hearing 13/12/23 15/12/23 Claimant requests written Slip rule amendment regarding his reasons & slip rule professional description amendment 04/01/24 Respondent requests To formally dismiss the automatic amendment of the unfair dismissal claim judgment under the slip rule 06/01/25 Request for written reasons & slip rule amendments reaches the Judge 23/01/25 Short form judgment To correct the title of the Claimant’s amended under Rule 67 representative and include formal (the slip rule) dismissal of the automatic unfair dismissal claim. 02/02/25 Written reasons Sent to the parties on 15/04/25 29/04/25 Claimant’s application for Seeking an ACAS uplift of 25% reconsideration of the judgment with submissions 16/05/25 Respondent’s initial Objecting to reconsideration response to the reconsideration application 04/06/25 Tribunal directions re Giving the Tribunal’s provisional view reconsideration application on the application 30/06/25 Claimant’s written submissions for 15/07/25 Respondent’s detailed written submissions on the application. The Issues[3]The issues for determination are as follows:(i) Should the judgment be reconsidered?(ii) If the judgment is reconsidered, should an ACAS uplift be awarded?(iii) If an uplift is awarded, what percentage (up to a maximum of 25%) should be awarded?
The Evidence
[4]The Tribunal considered the papers previously before it for the Final hearing, the judge’s notes of both the final hearing and her oral judgment, the written reasons, the application for reconsideration and the written submissions of both parties in respect of the reconsideration application.[5]References in bold in square brackets are references to the pagination of the bundle for the final hearing.[6]This application was determined, by agreement of both parties, on the papers and no oral representations were heard.[7]The Claimant’s representations were made by Ms Victoria Quinn and the Respondent’s submissions were made by Ms Gyane. The Submissions[8]The Claimant asserts that it was a procedural error to rely on neither party having made submissions regarding an ACAS uplift for failing to award an ACAS uplift and cited Gavli v LHR Airports Ltd [2021] 5 WLUK 590, Pipe Coil Technology Ltd v Heathcote EAT/0432/11, Levy v 34 Co Ltd UKEAT/0033/20/DA and Ball v First Essex Buses Limited 3201435/2017.[9]She asserts that an uplift should be given as the Claimant’s Schedule of Losses, including that contained in the final hearing bundle [70-72] and the updated version sent to the Tribunal on 8th December 2023 sought an ACAS uplift and that the reasons for the judgment (in particular paragraphs 64, 72-74, 75, 77, 80, 82, 87, 83, 128, 133, 138, 142 and 145-164 of the written reasons) indicate that a decision would have been taken to award an uplift on the facts of the case.[10]She further asserts that it was not clear in advance of the written reasons that the Judge had found that the uplift was not within the Claimants claim and it was not unreasonable to await written reasons before applying for reconsideration, that the delay in providing the written reasons could not have been foreseen and should not prejudice the reconsideration.[11]The Respondent objected to the reconsideration on the basis that there was no reasonable prospect of the original decision being varied. The Respondent’s submissions referred to the same authorities as those cited by the Claimant and cited further authorities of Trimble v Supertravel Ltd [1982] IRLR 451 and Ironsides Ray & Vials v Lindsay [1994] IRLR 318 regarding reconsideration plus Flint v Eastern Electricity Board [1975] ICR 395, Ministry of Justice v Burton [2016] EWCA Civ 714 in relation to public interest and parties’ legitimate expectations of finality and Rentplus UK Ltd -v- Coulson [2022] EAT 81 in respect of ACAS uplifts.[12]The Respondent’s submissions highlighted the process followed at the final hearing, that neither the Claimant’s oral or written submissions raised an ACAS uplift and the agreement between the party’s representatives as to remedy subject to the court’s findings on 2 limited areas (not including ACAS uplift).[13]The Respondent also referred to the Claimant’s delay of over 14.5 months in seeking reconsideration relating to the ACAS uplift notwithstanding the Claimant’s request for reconsideration on 15th December 2023 and submits that it would not be in the interests of justice to re-open a matter that has been closed for 18 months nor would it be fair or reasonable to award an uplift now over 18 months after the award was settled in full and that this case is not one in which an uplift in respect of ACAS would have been given in any event as it would amount to double recovery The Law Standard of Proof[14]The party who bears the burden of proving the claim, or any element of the claim, must do so on the balance of probabilities.[15]Rules 68 to 70 of the Employment Tribunal Rules 2024 allow a judgment to be reconsidered where it is in the interests of justice to do so either on the application of a party or of its own initiative.
The Law
[16]The Tribunal’s powers on reconsideration are to confirm, vary or revoke the judgment and, if revoked, the judgment may be re-taken without any obligation to reach the same conclusion.[17]Applications for reconsideration must be made within 14 days of the date when the written record of the judgment was sent to the parties or the date written reasons were sent (if sent separately), whichever is the later.[18]An application for reconsideration must be refused if there is no reasonable prospect of the judgment being varied or revoked and, if not refused the Tribunal must give directions as to the period for written reasons, the parties to provide their views as to whether the application can be determined without hearing and may set out the Tribunal’s provisional views on the application.[19]Reconsideration must take place at a hearing unless the Tribunal considers, having regard to written representations provided that a hearing is not necessary in the interests of justice. If no hearing is held the parties must be given an opportunity to make further written representations. ACAS Uplift[20]Where the substance of the dismissal falls within the intended remit of the Code (misconduct or capability) an unreasonable failure to follow the ACAS Code of Practice may result in an adjustment of compensation under S.207 and s.207A of the Trade Union and Labour Relations (Consolidation) Act 1992.[21]The ACAS Code is be had regard to but is not a prescriptive list of actions which must be followed in all circumstances. The ACAS guidelines themselves specifically indicate that that the Tribunal may take the size and resources of the employer into account and that it may not be practical for all employers to take all of the steps set out in the Code.[22]Even if a breach of the ACAS Code is found, the Tribunal has a discretion both as to whether an uplift is awarded at all and, if so, the amount of the uplift (up to a maximum of 25%). Uplifts will only be awarded where it is just and equitable in all the circumstances to do so.[23]Where an employer has in good faith applied a procedure that complied with the ACAS code but made such a mess of it that the dismissal was unfair the Tribunal may consider it inappropriate to award an uplift – Rentplus.[24]Ball and Rentplus, following Lawless v Print Plus (debarred) UKEAT/0333/09/JOJ, set out the relevant circumstances to be taken into account when considering an uplift. Although it is clear that these will vary from case to case the Employment Tribunal should always take into account:(a) whether the procedures were applied to some extent or were ignored altogether;(b) whether the failure to comply with the procedures was deliberate or inadvertent; and(c) whether there were circumstances that mitigated the blameworthiness of the failure to comply.[25]The size and resources of the employer may be a relevant factor although this has limited application if the Tribunal assesses that the employer's motives for disregarding the ACAS guidance were deliberate or blameworthy. Relevant Findings of Fact and Associated Conclusions[26]The Claimant’s reconsideration request was made within 14 days of the written reasons being sent to the parties and was therefore made in accordance with Rule 69 of the Employment Tribunal Rules 2024.[27]Both parties made initial written representations on the application and provided further written representations following the directions and provisional view given by the Tribunal.[28]The parties have agreed to a determination of the reconsideration application on the papers and the Tribunal considers that a hearing is not necessary in the interests of justice having regard to:(i) the comprehensive and detailed written representations provided by both parties, which included representations following the Tribunal having expressed a provisional view on the application;(ii) the costs and inconvenience to the parties of holding a further hearing; and(iii) the overriding objective in Rule 3(1) and 3(2) of the Employment Tribunal Rules 2024, and in particular considering the proportionality and expense of holding a further hearing. Should there be a Reconsideration?[29]Prior to the reconsideration application, the Claimant’s request for an ACAS uplift appeared solely in various iterations of her Schedule of Loss [107-110 and the separate updated Schedule provided on 8th December 2023] .[30]It was not raised explicitly on the ET1 claim form and additional particulars [2-22] although the Claimant’s ET1 did raise procedural flaws without specifically allege breaches of the ACAS code.[31]No issues relating to an ACAS uplift appeared on the list of issues to be determined by the Tribunal [97-100], which was not challenged by either party in accordance with the directions given at paragraph 10 of the order of 19th October 2023 [102].[32]The Claimant had ample opportunity to raise the question of an ACAS uplift during the course of the hearing but failed to do so. Neither the Claimant’s written nor oral submissions to the Tribunal made reference to a claim for an ACAS uplift and the Claimant did not at any stage during submissions on either liability or remedy ask the Tribunal to make findings that an ACAS uplift was within the Claimant’s claim, or that there had been breaches of the ACAS Code of Practice (or specifying which provisions of the Code had been breached) or request that the award be uplifted.[33]The Tribunal gave oral judgments on both liability and remedy. The written reasons closely followed the oral judgment given with little or no additional material to the findings and conclusions other than the inclusion of references to the trial bundle.
The Claims
[34]Both the oral and written reasons included findings of unfairness based on procedural deficiencies in the Respondent's investigation and other failures in the disciplinary process which rendered the disciplinary process unfair to the Claimant and rendered the Respondent’s honest belief in the Claimant’s guilt unreasonable because of the unreasonable process which led to that belief.[35]The Tribunal also found that: "The process was conducted rigidly and formulaically and along a conveyor belt method which, whilst strictly according with both the process of the Respondents set out in their disciplinary policy and, broadly, the ACAS Code and what is generally understood to be required nevertheless in this case failed to deliver a fair hearing.” (paragraph 146 of the written reasons)[36]Following the oral judgment, there was an 11-minute adjournment before remedy was considered. On resumption of the hearing the parties were asked if any of the aspects of remedy were agreed. The parties informed the Tribunal that the basic award and pension contributions rate were agreed but that the parties requested that the Tribunal determine 2 discrete matters:(i) the rate of pay for the compensatory award; and(ii) mitigation of loss/the duration for which the compensatory award should be paid.[37]The Tribunal heard further evidence followed by submissions from both parties’ representatives on these issues before giving a further oral judgment determining each of these issues.[38]The Tribunal broke again for 11 minutes to enable the parties to consider the judgment and check the figures for the judgment. On their return, no further issues were raised for the Tribunal to determine, and final figures were agreed by the parties and recorded.[39]Following the hearing, the parties submitted an agreed draft order including revised figures for the compensatory award which corrected a mathematical error. The Tribunal did not approve the draft provided but incorporated the agreed figures into its judgment (which included a typing error in that the total figure given of £35,318.46 should have read £35,318.56).[40]There is no realistic possibility that Mr Miller could have failed to understand from the judgments given orally that no determination had been made by the Tribunal as to whether an ACAS uplift should be awarded, or whether an ACAS uplift formed part of the Claimant’s claim.[41]Neither party had requested such a determination or addressed whether an ACAS uplift formed part of the Claimant’s claim. No part of the oral judgments in respect of liability or remedy made any determination as to whether an ACAS uplift formed part of the claim. No express findings were made in the oral judgment on liability that there had been any breaches of the ACAS Code. No part of the oral judgments in respect of liability or remedy included any comments which could have reasonably led any party to conclude that the issue of an ACAS uplift had been considered and determined by the Judge.[42]The Claimant’s representative, Mr Miller, agreed what the issues to be determined in respect of remedy were (which were limited as above) and agreed the figures that were to form part of the award following determination of those issues.[43]Following the hearing he agreed a draft judgment which did not contain any reference to an ACAS uplift and which figures had been discussed during the hearing, were clearly based on the relevant salary multiplied by the period for which compensation was found to be payable and were obviously based on an award without an uplift.[44]On receipt of the Tribunal’s judgment which did not set out any calculations regarding an ACAS uplift but did contain the following wording: “Note that these are actual the sums payable to the claimant after any deductions or uplifts have been applied.” Mr Miller requested written reasons and an amendment to the judgment (in relation to his description) but did not at that stage seek a reconsideration in relation to the obvious failure to award an ACAS uplift although he had had ample time to reflect on the fact that none was included.[45]On the balance of probabilities it is more likely that following the determination of liability, and in light of the reasons for that determination, Mr Miller chose not to make submissions or request a determination from the Tribunal as to whether the ACAS uplift formed part of the Claimant’s claim or whether an uplift should be awarded but abandoned this element of the Claimant’s Schedule of Loss. It would have been an entirely pragmatic and realistic view that an ACAS uplift was unlikely to be awarded in light of the factual findings made by the Tribunal. The Tribunal notes however that no express statement of withdrawal or abandonment was given.[46]The Claimant asserts that it was an error of procedure for the Tribunal to fail to determine the question of whether an ACAS uplift should have been applied given that it appeared on the Claimant’s Schedule of Loss.[47]In Gavli the ACAS uplift was found to be an element of the Claimant’s claim on the basis of particulars in the ET1 and the Schedule of Loss, which the Respondent accepted comprised a claim. Submissions were made simultaneously on liability and remedy and Counsel for the Claimant did not have the benefit of a liability judgment when making his remedy submissions. The Employment Tribunal had recorded that a claim had been made for an uplift and noted that the alleged failure was not obvious, not set out in the Claimant’s claim, and had not been referred to in evidence or in submissions. Accordingly the EAT found that the Judge should have properly considered whether to make the award.[48]This case differs from Gavli in that, although the ACAS uplift was included in the Claimant’s Schedule of Loss, it was not included in the ET1. The ET1 broadly raised procedural flaws but did not refer to ACAS Code of Practice. The list of issues did not include either breach of the ACAS Code of Practice or any consequential damages uplift. The Claimant’s representative had the benefit of having heard the judgment (including reasons) on liability before making submissions on remedy and knew the basis on which the claim for unfair dismissal had succeeded but still made no submissions as to an uplift. At no point (including in the request for reconsideration and to date) has the Claimant stated what provision(s) of the ACAS code she says have been breached so as to justify an uplift or how they were breached.[49]Gavli itself cites (at paragraph 60) Pipe Coil in which the EAT held that the Employment Tribunal does not have to consider making an award under s.207 of the 1992 Act unless a party specifically asks it to do so. There had not been a specific claim for an uplift in the submissions made on the Claimant’s behalf before the Tribunal and the Tribunal could not be criticised for not dealing with a point of its own motion.[50]In Levy in respect of a mandatory award under s.38 of the Employment Act 2002 the EAT found that it was for the Claimant to make it known to the ET what she was claiming so that the respondent knows what is being claimed to ensure a fair hearing and the Employment Tribunal was not bound to make an award (paragraph 38).[51]In Trimble the EAT made observations as to the purpose of a review being to correct errors occurring in the course of proceedings but commented that it would not normally be appropriate where the proceedings had given both parties a fair opportunity to present their case and a decision had been reached in light of all relevant argument and in Ironside the EAT indicated that failings of a party’s representatives will not generally constitute grounds for review. The Respondent also asserts public interest in the finality of litigation.[52]The Claimant’s case is put on the basis that the claim for an uplift was before the Tribunal and should have been dealt with regardless of whether submissions had been made on the issue. I do not consider Trimble, Ironsides, Flint or Burton to be of much assistance in determining whether a review should be undertaken in the circumstances of this case. Although Mr Miller had a fair opportunity to present argument on an ACAS uplift, the Tribunal did not ask him to do so notwithstanding that an uplift was sought in the Schedule of Loss.[53]Neither party has provided any detailed submissions as to whether, in the circumstances of this case, where the only place where an ACAS uplift was referred to was in the Claimant’s Schedules of Loss, but not in the ET1 or particulars save by general reference to broad reference to procedural flaws, the Claimant had effectively put the claim for an ACAS uplift before the Tribunal.[54]The Tribunal is mindful that lists of issues, whilst helpful to both the parties and the Tribunal, do not equate to pleadings and the absence of an issue raised by the ET1 or ET3 from a list of issues does not excuse the Tribunal from addressing it.[55]Although the ET1 and particulars of claim do not expressly refer to breaches of the ACAS Code or an uplift, this is not uncommon, and the tribunal finds that the inclusion of the claim in the Schedule of Loss coupled with the broad allegations of procedural unfairness in the ET1 and particulars of claim were sufficient to effectively put the claim for an ACAS uplift before the Tribunal.[56]Although there are differences between the facts of the present case and those of Gavli, the Tribunal considers that having found that the claim for an uplift was effectively before the Tribunal, it is bound by Gavli. Following Gavli, notwithstanding the absence of the issue of the ACAS uplift from the list of issues and the lack of submissions from either representative on the issue even after the judgment on liability had been given, the Tribunal concludes that the judgment should be reconsidered.[57]The Tribunal notes the reasons for its judgment that the Claimant had been unfairly dismissed included procedural deficiencies in both the investigation and hearing process and is therefore satisfied that there is not no reasonable prospect of the judgment being varied or revoked.[58]The Tribunal therefore went on to reconsider the judgment. Decision on reconsideration[59]The relevant ACAS Code is the ACAS Code of Practice on Discipline and Grievance Procedures published in 2015.[60]In its liability determination, the Tribunal found procedural deficiencies but made no express findings as to any breaches of the ACAS Code.[61]Were there provisions of the ACAS Code that were not complied with by the Respondent? The Claimant has still not availed herself of the opportunity to set out which provisions of the Code were breached, or how, and it is not obvious to the Tribunal that the Code was breached.[62]The only possible breaches that this Tribunal (without the assistance of the Claimant’s representative) can identify as potentially relevant are in relation to paragraph 5 (which requires the employer to carry out necessary investigations) and paragraph 12 (which requires the employer to give the employee a reasonable opportunity to ask questions, present evidence, call any relevant witnesses and raise any points about information provided by witnesses at the disciplinary hearing).[63]As set out in the written reasons, the Respondent did carry out an investigation which was more than merely cursory but did not identify that the investigations which the Tribunal considered should have been made were necessary. It also afforded an opportunity to the Claimant to ask questions, present evidence, call any relevant witnesses and raise any points about information provided by witnesses, albeit that it shut down avenues it did not consider to be relevant and required specific processes to be followed with little flexibility.[64]The Respondent did not ignore the ACAS Code. It complied with the letter of the ACAS Code, but in a manner which was flawed, did not follow the spirit of the Code and ultimately delivered an unfair result, as set out in paragraph 146 of the written reasons. The Tribunal did not find that the Respondent deliberately or intentionally fail to comply with either paragraph 5 or 12 of the Code. The Respondent’s process was protracted and afforded the Claimant ample opportunity to address relevant matters. Nevertheless, the Claimant did not always avail herself of those opportunities, having failed herself to recognise the issues that should have been addressed (as set out in paragraphs 131 and 135 of the written reasons).[65]There were therefore failings to identify the relevant issues at an early stage by both parties.[66]The Tribunal’s factual findings did not include findings of bad faith, rather deficiencies that were outside the range of reasonable responses.[67]Although the claim for an uplift was before the Tribunal as a result of the matters set out above, it was not effectively pursued by the Claimant or her representative:(i) No application to amend the ET1 to reflect breaches of the ACAS Code or a claim for an ACAS uplift was made.(ii) Such a claim was not included on the list of issues which were considered at the hearing on 19th October 2023 (when the Claimant was represented).(iii) The Claimant failed to seek an amendment to the List of Issues to include the issue of an ACAS uplift following the hearing on 19th October 2023, which she could have done in accordance with paragraph 10 of the directions made on that date (which invited the parties to write to the Tribunal and the other side if they considered the list of issues to be wrong or incomplete).(iv) The Claimant failed to pursue a claim for an ACAS uplift at the hearing, despite having the opportunity to do so in submissions at the remedy hearing following the oral judgment on liability.(v) The Claimant agreed the issues to be determined on remedy following the judgment on liability and did not refer to or include the ACAS uplift despite no agreement having been reached between the parties that an uplift should be awarded (or the percentage amount).(vi) The Claimant agreed the sums to be awarded, which did not include an ACAS uplift.(vii) The Claimant did not seek a reconsideration of the judgment to include an ACAS uplift promptly following promulgation of the short form judgment despite: (a) seeking other amendments; (b) the award obviously did not include an uplift; and (c) a clear oral judgment in which procedural failings had been the justification for the finding of unfair dismissal.(viii) The Claimant did not put the Respondent on notice that it was considering applying for a reconsideration of the question of an ACAS uplift until over 14 months after the short form judgment was promulgated and the sums due under the judgment had been paid.[68]The Claimant now seeks to suggest that the reason for requesting written reasons was “in order to determine the reason the ACAS uplift had not been applied”. This only underlines the knowledge of the Claimant and her representative in December 2023 that an ACAS uplift had not been applied, and an intention to pursue the issue. That renders it more surprising that the request for written reasons and an amendment to the judgment made on 15th December 2023 contained no reference to omission of an ACAS uplift or request for a reconsideration of that point. For the reasons set out above at paragraphs 40-45 above the Tribunal is not satisfied that there is any realistic possibility that Mr Miller could have failed to understand from the judgments given orally that no determination had been made by the Tribunal as to whether an ACAS uplift should be awarded, or whether an ACAS uplift formed part of the Claimant’s claim. The Employment Tribunal Rules do not require a party to request or await written reasons before seeking a reconsideration.[69]By failing to pursue an ACAS uplift, expressly agreeing to the issues to be determined by the Tribunal for remedy (which did not include any issue of an uplift) and agreeing the damages award, the Claimant effectively led the Tribunal to believe that an ACAS uplift was no longer being pursued. It is the prerogative of any party to not pursue or abandon a party or whole of their claim.[70]The parties have a reasonable expectation of finality in litigation and that an opposing party will bring the entirety of its case to the Tribunal in the first instance. The Claimant blatantly failed to do so and has offered no reasonable explanation for her failure. In all the circumstances, it is not just and equitable to impose any increase in the award for an ACAS uplift that was not actively pursued at the time of the original hearing when the Claimant was represented and where no prompt notification was given to the Respondent of the intention or possibility that the Claimant would seek to pursue such a claim by seeking reconsideration or by appealing.[71]In any event, even if the issue of an uplift had been considered at the time of the remedy hearing on 8th December 2023, the Tribunal would not have considered it to be just and equitable to impose an uplift for the reasons set out at paragraphs 34, 35 and 60-66 above.
Conclusions
[72]The judgment is reconsidered and, for the reasons set out above, affirmed save that the Tribunal having identified a mathematical error in the judgment, it shall be varied to correct the mathematical error. Employment Judge L Clarke 26th August 2025 sent on 10th September 2025 by Olivia Miranda EMPLOYMENT TRIBUNALS Claimant: Ms N Maitre First Respondent: London Borough of Richmond Upon Thames Second Respondent: London Borough of Wandsworth Heard at: London South (Croydon) On: 4th, 5th, 6th 7th and 8th December 2023 Reconsidered on: 26th August 2025 Before: Employment Judge L Clarke Appearances at final hearing For the Claimant: Mr James Miller (FRU representative) For the Respondents: Ms Naomi Gyane (Counsel) Representations for reconsideration: For the Claimant: Ms Victoria Quinn (FRU representative) For the Respondents: Ms Naomi Gyane (Counsel)
Introduction
[1]The factual background to this case is set out in the written reasons given on 2nd February 2025 (issued on 15th April 2025).[2]The procedural background can be summarised as follows: Date Event Comment 08/09/20 Claim form presented Seeking compensation for protected disclosure detriment and automatic unfair dismissal, alternatively ordinary unfair dismissal. 09/01/23- Preliminary hearing Part heard 10/01/23 02/02/23 Preliminary hearing Concluded 08/02/23 Judgment and written Claimant had made 4 protected reasons on preliminary disclosures. issue Sent to the parties on 09/02/25 17/11/23 Judgment on the detriment Following Claimant’s written claim on withdrawal withdrawal of the claim for detriment 04- Final hearing Oral judgments on liability and 08/12/23 remedy given at conclusion. 11/12/23 Draft judgment forwarded Agreed by both Claimant and to Tribunal Respondent’s representatives. 12/12/23 Short form judgment of the Made in the form agreed between the Tribunal following the final parties. Sent to the parties on hearing 13/12/23 15/12/23 Claimant requests written Slip rule amendment regarding his reasons & slip rule professional description amendment 04/01/24 Respondent requests To formally dismiss the automatic amendment of the unfair dismissal claim judgment under the slip rule 06/01/25 Request for written reasons & slip rule amendments reaches the Judge 23/01/25 Short form judgment To correct the title of the Claimant’s amended under Rule 67 representative and include formal (the slip rule) dismissal of the automatic unfair dismissal claim. 02/02/25 Written reasons Sent to the parties on 15/04/25 29/04/25 Claimant’s application for Seeking an ACAS uplift of 25% reconsideration of the judgment with submissions 16/05/25 Respondent’s initial Objecting to reconsideration response to the reconsideration application 04/06/25 Tribunal directions re Giving the Tribunal’s provisional view reconsideration application on the application 30/06/25 Claimant’s written submissions for 15/07/25 Respondent’s detailed written submissions on the application.
The Issues
[3]The issues for determination are as follows:(i) Should the judgment be reconsidered?(ii) If the judgment is reconsidered, should an ACAS uplift be awarded?(iii) If an uplift is awarded, what percentage (up to a maximum of 25%) should be awarded?
The Evidence
[4]The Tribunal considered the papers previously before it for the Final hearing, the judge’s notes of both the final hearing and her oral judgment, the written reasons, the application for reconsideration and the written submissions of both parties in respect of the reconsideration application.[5]References in bold in square brackets are references to the pagination of the bundle for the final hearing.[6]This application was determined, by agreement of both parties, on the papers and no oral representations were heard.[7]The Claimant’s representations were made by Ms Victoria Quinn and the Respondent’s submissions were made by Ms Gyane. The Submissions[8]The Claimant asserts that it was a procedural error to rely on neither party having made submissions regarding an ACAS uplift for failing to award an ACAS uplift and cited Gavli v LHR Airports Ltd [2021] 5 WLUK 590, Pipe Coil Technology Ltd v Heathcote EAT/0432/11, Levy v 34 Co Ltd UKEAT/0033/20/DA and Ball v First Essex Buses Limited 3201435/2017.[9]She asserts that an uplift should be given as the Claimant’s Schedule of Losses, including that contained in the final hearing bundle [70-72] and the updated version sent to the Tribunal on 8th December 2023 sought an ACAS uplift and that the reasons for the judgment (in particular paragraphs 64, 72-74, 75, 77, 80, 82, 87, 83, 128, 133, 138, 142 and 145-164 of the written reasons) indicate that a decision would have been taken to award an uplift on the facts of the case.[10]She further asserts that it was not clear in advance of the written reasons that the Judge had found that the uplift was not within the Claimants claim and it was not unreasonable to await written reasons before applying for reconsideration, that the delay in providing the written reasons could not have been foreseen and should not prejudice the reconsideration.[11]The Respondent objected to the reconsideration on the basis that there was no reasonable prospect of the original decision being varied. The Respondent’s submissions referred to the same authorities as those cited by the Claimant and cited further authorities of Trimble v Supertravel Ltd [1982] IRLR 451 and Ironsides Ray & Vials v Lindsay [1994] IRLR 318 regarding reconsideration plus Flint v Eastern Electricity Board [1975] ICR 395, Ministry of Justice v Burton [2016] EWCA Civ 714 in relation to public interest and parties’ legitimate expectations of finality and Rentplus UK Ltd -v- Coulson [2022] EAT 81 in respect of ACAS uplifts.[12]The Respondent’s submissions highlighted the process followed at the final hearing, that neither the Claimant’s oral or written submissions raised an ACAS uplift and the agreement between the party’s representatives as to remedy subject to the court’s findings on 2 limited areas (not including ACAS uplift).[13]The Respondent also referred to the Claimant’s delay of over 14.5 months in seeking reconsideration relating to the ACAS uplift notwithstanding the Claimant’s request for reconsideration on 15th December 2023 and submits that it would not be in the interests of justice to re-open a matter that has been closed for 18 months nor would it be fair or reasonable to award an uplift now over 18 months after the award was settled in full and that this case is not one in which an uplift in respect of ACAS would have been given in any event as it would amount to double recovery The Law Standard of Proof
The Law
[14]The party who bears the burden of proving the claim, or any element of the claim, must do so on the balance of probabilities.[15]Rules 68 to 70 of the Employment Tribunal Rules 2024 allow a judgment to be reconsidered where it is in the interests of justice to do so either on the application of a party or of its own initiative.[16]The Tribunal’s powers on reconsideration are to confirm, vary or revoke the judgment and, if revoked, the judgment may be re-taken without any obligation to reach the same conclusion.[17]Applications for reconsideration must be made within 14 days of the date when the written record of the judgment was sent to the parties or the date written reasons were sent (if sent separately), whichever is the later.[18]An application for reconsideration must be refused if there is no reasonable prospect of the judgment being varied or revoked and, if not refused the Tribunal must give directions as to the period for written reasons, the parties to provide their views as to whether the application can be determined without hearing and may set out the Tribunal’s provisional views on the application.[19]Reconsideration must take place at a hearing unless the Tribunal considers, having regard to written representations provided that a hearing is not necessary in the interests of justice. If no hearing is held the parties must be given an opportunity to make further written representations. ACAS Uplift[20]Where the substance of the dismissal falls within the intended remit of the Code (misconduct or capability) an unreasonable failure to follow the ACAS Code of Practice may result in an adjustment of compensation under S.207 and s.207A of the Trade Union and Labour Relations (Consolidation) Act 1992.[21]The ACAS Code is be had regard to but is not a prescriptive list of actions which must be followed in all circumstances. The ACAS guidelines themselves specifically indicate that that the Tribunal may take the size and resources of the employer into account and that it may not be practical for all employers to take all of the steps set out in the Code.[22]Even if a breach of the ACAS Code is found, the Tribunal has a discretion both as to whether an uplift is awarded at all and, if so, the amount of the uplift (up to a maximum of 25%). Uplifts will only be awarded where it is just and equitable in all the circumstances to do so.[23]Where an employer has in good faith applied a procedure that complied with the ACAS code but made such a mess of it that the dismissal was unfair the Tribunal may consider it inappropriate to award an uplift – Rentplus.[24]Ball and Rentplus, following Lawless v Print Plus (debarred) UKEAT/0333/09/JOJ, set out the relevant circumstances to be taken into account when considering an uplift. Although it is clear that these will vary from case to case the Employment Tribunal should always take into account:(a) whether the procedures were applied to some extent or were ignored altogether;(b) whether the failure to comply with the procedures was deliberate or inadvertent; and(c) whether there were circumstances that mitigated the blameworthiness of the failure to comply.[25]The size and resources of the employer may be a relevant factor although this has limited application if the Tribunal assesses that the employer's motives for disregarding the ACAS guidance were deliberate or blameworthy. Relevant Findings of Fact and Associated
Conclusions
[26]The Claimant’s reconsideration request was made within 14 days of the written reasons being sent to the parties and was therefore made in accordance with Rule 69 of the Employment Tribunal Rules 2024.[27]Both parties made initial written representations on the application and provided further written representations following the directions and provisional view given by the Tribunal.[28]The parties have agreed to a determination of the reconsideration application on the papers and the Tribunal considers that a hearing is not necessary in the interests of justice having regard to:(i) the comprehensive and detailed written representations provided by both parties, which included representations following the Tribunal having expressed a provisional view on the application;(ii) the costs and inconvenience to the parties of holding a further hearing; and(iii) the overriding objective in Rule 3(1) and 3(2) of the Employment Tribunal Rules 2024, and in particular considering the proportionality and expense of holding a further hearing. Should there be a Reconsideration?[29]Prior to the reconsideration application, the Claimant’s request for an ACAS uplift appeared solely in various iterations of her Schedule of Loss [107-110 and the separate updated Schedule provided on 8th December 2023] .[30]It was not raised explicitly on the ET1 claim form and additional particulars [2-22] although the Claimant’s ET1 did raise procedural flaws without specifically allege breaches of the ACAS code.[31]No issues relating to an ACAS uplift appeared on the list of issues to be determined by the Tribunal [97-100], which was not challenged by either party in accordance with the directions given at paragraph 10 of the order of 19th October 2023 [102].[32]The Claimant had ample opportunity to raise the question of an ACAS uplift during the course of the hearing but failed to do so. Neither the Claimant’s written nor oral submissions to the Tribunal made reference to a claim for an ACAS uplift and the Claimant did not at any stage during submissions on either liability or remedy ask the Tribunal to make findings that an ACAS uplift was within the Claimant’s claim, or that there had been breaches of the ACAS Code of Practice (or specifying which provisions of the Code had been breached) or request that the award be uplifted.[33]The Tribunal gave oral judgments on both liability and remedy. The written reasons closely followed the oral judgment given with little or no additional material to the findings and conclusions other than the inclusion of references to the trial bundle.[34]Both the oral and written reasons included findings of unfairness based on procedural deficiencies in the Respondent's investigation and other failures in the disciplinary process which rendered the disciplinary process unfair to the Claimant and rendered the Respondent’s honest belief in the Claimant’s guilt unreasonable because of the unreasonable process which led to that belief.[35]The Tribunal also found that: "The process was conducted rigidly and formulaically and along a conveyor belt method which, whilst strictly according with both the process of the Respondents set out in their disciplinary policy and, broadly, the ACAS Code and what is generally understood to be required nevertheless in this case failed to deliver a fair hearing.” (paragraph 146 of the written reasons)[36]Following the oral judgment, there was an 11-minute adjournment before remedy was considered. On resumption of the hearing the parties were asked if any of the aspects of remedy were agreed. The parties informed the Tribunal that the basic award and pension contributions rate were agreed but that the parties requested that the Tribunal determine 2 discrete matters:(i) the rate of pay for the compensatory award; and(ii) mitigation of loss/the duration for which the compensatory award should be paid.[37]The Tribunal heard further evidence followed by submissions from both parties’ representatives on these issues before giving a further oral judgment determining each of these issues.[38]The Tribunal broke again for 11 minutes to enable the parties to consider the judgment and check the figures for the judgment. On their return, no further issues were raised for the Tribunal to determine, and final figures were agreed by the parties and recorded.[39]Following the hearing, the parties submitted an agreed draft order including revised figures for the compensatory award which corrected a mathematical error. The Tribunal did not approve the draft provided but incorporated the agreed figures into its judgment (which included a typing error in that the total figure given of £35,318.46 should have read £35,318.56).[40]There is no realistic possibility that Mr Miller could have failed to understand from the judgments given orally that no determination had been made by the Tribunal as to whether an ACAS uplift should be awarded, or whether an ACAS uplift formed part of the Claimant’s claim.[41]Neither party had requested such a determination or addressed whether an ACAS uplift formed part of the Claimant’s claim. No part of the oral judgments in respect of liability or remedy made any determination as to whether an ACAS uplift formed part of the claim. No express findings were made in the oral judgment on liability that there had been any breaches of the ACAS Code. No part of the oral judgments in respect of liability or remedy included any comments which could have reasonably led any party to conclude that the issue of an ACAS uplift had been considered and determined by the Judge.[42]The Claimant’s representative, Mr Miller, agreed what the issues to be determined in respect of remedy were (which were limited as above) and agreed the figures that were to form part of the award following determination of those issues.[43]Following the hearing he agreed a draft judgment which did not contain any reference to an ACAS uplift and which figures had been discussed during the hearing, were clearly based on the relevant salary multiplied by the period for which compensation was found to be payable and were obviously based on an award without an uplift.[44]On receipt of the Tribunal’s judgment which did not set out any calculations regarding an ACAS uplift but did contain the following wording: “Note that these are actual the sums payable to the claimant after any deductions or uplifts have been applied.” Mr Miller requested written reasons and an amendment to the judgment (in relation to his description) but did not at that stage seek a reconsideration in relation to the obvious failure to award an ACAS uplift although he had had ample time to reflect on the fact that none was included.[45]On the balance of probabilities it is more likely that following the determination of liability, and in light of the reasons for that determination, Mr Miller chose not to make submissions or request a determination from the Tribunal as to whether the ACAS uplift formed part of the Claimant’s claim or whether an uplift should be awarded but abandoned this element of the Claimant’s Schedule of Loss. It would have been an entirely pragmatic and realistic view that an ACAS uplift was unlikely to be awarded in light of the factual findings made by the Tribunal. The Tribunal notes however that no express statement of withdrawal or abandonment was given.[46]The Claimant asserts that it was an error of procedure for the Tribunal to fail to determine the question of whether an ACAS uplift should have been applied given that it appeared on the Claimant’s Schedule of Loss.[47]In Gavli the ACAS uplift was found to be an element of the Claimant’s claim on the basis of particulars in the ET1 and the Schedule of Loss, which the Respondent accepted comprised a claim. Submissions were made simultaneously on liability and remedy and Counsel for the Claimant did not have the benefit of a liability judgment when making his remedy submissions. The Employment Tribunal had recorded that a claim had been made for an uplift and noted that the alleged failure was not obvious, not set out in the Claimant’s claim, and had not been referred to in evidence or in submissions. Accordingly the EAT found that the Judge should have properly considered whether to make the award.[48]This case differs from Gavli in that, although the ACAS uplift was included in the Claimant’s Schedule of Loss, it was not included in the ET1. The ET1 broadly raised procedural flaws but did not refer to ACAS Code of Practice. The list of issues did not include either breach of the ACAS Code of Practice or any consequential damages uplift. The Claimant’s representative had the benefit of having heard the judgment (including reasons) on liability before making submissions on remedy and knew the basis on which the claim for unfair dismissal had succeeded but still made no submissions as to an uplift. At no point (including in the request for reconsideration and to date) has the Claimant stated what provision(s) of the ACAS code she says have been breached so as to justify an uplift or how they were breached.[49]Gavli itself cites (at paragraph 60) Pipe Coil in which the EAT held that the Employment Tribunal does not have to consider making an award under s.207 of the 1992 Act unless a party specifically asks it to do so. There had not been a specific claim for an uplift in the submissions made on the Claimant’s behalf before the Tribunal and the Tribunal could not be criticised for not dealing with a point of its own motion.[50]In Levy in respect of a mandatory award under s.38 of the Employment Act 2002 the EAT found that it was for the Claimant to make it known to the ET what she was claiming so that the respondent knows what is being claimed to ensure a fair hearing and the Employment Tribunal was not bound to make an award (paragraph 38).[51]In Trimble the EAT made observations as to the purpose of a review being to correct errors occurring in the course of proceedings but commented that it would not normally be appropriate where the proceedings had given both parties a fair opportunity to present their case and a decision had been reached in light of all relevant argument and in Ironside the EAT indicated that failings of a party’s representatives will not generally constitute grounds for review. The Respondent also asserts public interest in the finality of litigation.[52]The Claimant’s case is put on the basis that the claim for an uplift was before the Tribunal and should have been dealt with regardless of whether submissions had been made on the issue. I do not consider Trimble, Ironsides, Flint or Burton to be of much assistance in determining whether a review should be undertaken in the circumstances of this case. Although Mr Miller had a fair opportunity to present argument on an ACAS uplift, the Tribunal did not ask him to do so notwithstanding that an uplift was sought in the Schedule of Loss.[53]Neither party has provided any detailed submissions as to whether, in the circumstances of this case, where the only place where an ACAS uplift was referred to was in the Claimant’s Schedules of Loss, but not in the ET1 or particulars save by general reference to broad reference to procedural flaws, the Claimant had effectively put the claim for an ACAS uplift before the Tribunal.[54]The Tribunal is mindful that lists of issues, whilst helpful to both the parties and the Tribunal, do not equate to pleadings and the absence of an issue raised by the ET1 or ET3 from a list of issues does not excuse the Tribunal from addressing it.[55]Although the ET1 and particulars of claim do not expressly refer to breaches of the ACAS Code or an uplift, this is not uncommon, and the tribunal finds that the inclusion of the claim in the Schedule of Loss coupled with the broad allegations of procedural unfairness in the ET1 and particulars of claim were sufficient to effectively put the claim for an ACAS uplift before the Tribunal.[56]Although there are differences between the facts of the present case and those of Gavli, the Tribunal considers that having found that the claim for an uplift was effectively before the Tribunal, it is bound by Gavli. Following Gavli, notwithstanding the absence of the issue of the ACAS uplift from the list of issues and the lack of submissions from either representative on the issue even after the judgment on liability had been given, the Tribunal concludes that the judgment should be reconsidered.[57]The Tribunal notes the reasons for its judgment that the Claimant had been unfairly dismissed included procedural deficiencies in both the investigation and hearing process and is therefore satisfied that there is not no reasonable prospect of the judgment being varied or revoked.[58]The Tribunal therefore went on to reconsider the judgment. Decision on reconsideration[59]The relevant ACAS Code is the ACAS Code of Practice on Discipline and Grievance Procedures published in 2015.[60]In its liability determination, the Tribunal found procedural deficiencies but made no express findings as to any breaches of the ACAS Code.[61]Were there provisions of the ACAS Code that were not complied with by the Respondent? The Claimant has still not availed herself of the opportunity to set out which provisions of the Code were breached, or how, and it is not obvious to the Tribunal that the Code was breached.[62]The only possible breaches that this Tribunal (without the assistance of the Claimant’s representative) can identify as potentially relevant are in relation to paragraph 5 (which requires the employer to carry out necessary investigations) and paragraph 12 (which requires the employer to give the employee a reasonable opportunity to ask questions, present evidence, call any relevant witnesses and raise any points about information provided by witnesses at the disciplinary hearing).[63]As set out in the written reasons, the Respondent did carry out an investigation which was more than merely cursory but did not identify that the investigations which the Tribunal considered should have been made were necessary. It also afforded an opportunity to the Claimant to ask questions, present evidence, call any relevant witnesses and raise any points about information provided by witnesses, albeit that it shut down avenues it did not consider to be relevant and required specific processes to be followed with little flexibility.[64]The Respondent did not ignore the ACAS Code. It complied with the letter of the ACAS Code, but in a manner which was flawed, did not follow the spirit of the Code and ultimately delivered an unfair result, as set out in paragraph 146 of the written reasons. The Tribunal did not find that the Respondent deliberately or intentionally fail to comply with either paragraph 5 or 12 of the Code. The Respondent’s process was protracted and afforded the Claimant ample opportunity to address relevant matters. Nevertheless, the Claimant did not always avail herself of those opportunities, having failed herself to recognise the issues that should have been addressed (as set out in paragraphs 131 and 135 of the written reasons).[65]There were therefore failings to identify the relevant issues at an early stage by both parties.[66]The Tribunal’s factual findings did not include findings of bad faith, rather deficiencies that were outside the range of reasonable responses.[67]Although the claim for an uplift was before the Tribunal as a result of the matters set out above, it was not effectively pursued by the Claimant or her representative:(i) No application to amend the ET1 to reflect breaches of the ACAS Code or a claim for an ACAS uplift was made.(ii) Such a claim was not included on the list of issues which were considered at the hearing on 19th October 2023 (when the Claimant was represented).(iii) The Claimant failed to seek an amendment to the List of Issues to include the issue of an ACAS uplift following the hearing on 19th October 2023, which she could have done in accordance with paragraph 10 of the directions made on that date (which invited the parties to write to the Tribunal and the other side if they considered the list of issues to be wrong or incomplete).(iv) The Claimant failed to pursue a claim for an ACAS uplift at the hearing, despite having the opportunity to do so in submissions at the remedy hearing following the oral judgment on liability.(v) The Claimant agreed the issues to be determined on remedy following the judgment on liability and did not refer to or include the ACAS uplift despite no agreement having been reached between the parties that an uplift should be awarded (or the percentage amount).(vi) The Claimant agreed the sums to be awarded, which did not include an ACAS uplift.(vii) The Claimant did not seek a reconsideration of the judgment to include an ACAS uplift promptly following promulgation of the short form judgment despite: (a) seeking other amendments; (b) the award obviously did not include an uplift; and (c) a clear oral judgment in which procedural failings had been the justification for the finding of unfair dismissal.(viii) The Claimant did not put the Respondent on notice that it was considering applying for a reconsideration of the question of an ACAS uplift until over 14 months after the short form judgment was promulgated and the sums due under the judgment had been paid.[68]The Claimant now seeks to suggest that the reason for requesting written reasons was “in order to determine the reason the ACAS uplift had not been applied”. This only underlines the knowledge of the Claimant and her representative in December 2023 that an ACAS uplift had not been applied, and an intention to pursue the issue. That renders it more surprising that the request for written reasons and an amendment to the judgment made on 15th December 2023 contained no reference to omission of an ACAS uplift or request for a reconsideration of that point. For the reasons set out above at paragraphs 40-45 above the Tribunal is not satisfied that there is any realistic possibility that Mr Miller could have failed to understand from the judgments given orally that no determination had been made by the Tribunal as to whether an ACAS uplift should be awarded, or whether an ACAS uplift formed part of the Claimant’s claim. The Employment Tribunal Rules do not require a party to request or await written reasons before seeking a reconsideration.[69]By failing to pursue an ACAS uplift, expressly agreeing to the issues to be determined by the Tribunal for remedy (which did not include any issue of an uplift) and agreeing the damages award, the Claimant effectively led the Tribunal to believe that an ACAS uplift was no longer being pursued. It is the prerogative of any party to not pursue or abandon a party or whole of their claim.[70]The parties have a reasonable expectation of finality in litigation and that an opposing party will bring the entirety of its case to the Tribunal in the first instance. The Claimant blatantly failed to do so and has offered no reasonable explanation for her failure. In all the circumstances, it is not just and equitable to impose any increase in the award for an ACAS uplift that was not actively pursued at the time of the original hearing when the Claimant was represented and where no prompt notification was given to the Respondent of the intention or possibility that the Claimant would seek to pursue such a claim by seeking reconsideration or by appealing.[71]In any event, even if the issue of an uplift had been considered at the time of the remedy hearing on 8th December 2023, the Tribunal would not have considered it to be just and equitable to impose an uplift for the reasons set out at paragraphs 34, 35 and 60-66 above.
Conclusions
[72]The judgment is reconsidered and, for the reasons set out above, affirmed save that the Tribunal having identified a mathematical error in the judgment, it shall be varied to correct the mathematical error.