Ms A McDermott v Sellafield Ltd and Others: 2402530/2019

EMPLOYMENT TRIBUNALS

Case No 2402530/2019

Between

Ms A McDermottClaimant

Sellafield Ltd and OthersRespondent

Before

Employment Judge Batten

Mr C Milsom (instructed by Counsel) for claimant

Date 13 June 2024

JUDGMENT

The claimant’s applications for strike out, alternatively Deposit Orders against all 3 respondents are refused.

REASONS

[1]On 19 March 2019, the claimant presented clams of detriment for making protected disclosures and of victimisation against 3 respondents. On 3 May 2019, each of the respondents filed their responses to the claim. It is accepted that the claimant is a contract worker pursuant to section 41 of the Equality Act 2010 (“EqA”) and/or a worker pursuant to section 43K of the Employment Rights Act 1996 (“ERA”).

[2]On 31 July 2019, at a case management preliminary hearing, the second and third respondents’ applications to be removed from the proceedings, and the second respondent’s application for strike out of the claim or deposit orders, were refused. Case management orders were made and the case was listed for a 14-day final hearing.

[3]Following a disclosure exercise conducted by their solicitors in late 2019, the parties became involved in protracted correspondence regarding disclosure. The claimant submitted subject access requests to the first and second respondent which produced further documents which the claimant says should have been disclosed in these proceedings. On 4 February 2020, the claimant made her application which led to this preliminary hearing. All 3 respondents wrote to the Tribunal to respond to the application when they received it, earlier this year. On 17 June 2020, the claimant’s application was revised and redrafted by Counsel who appears for the claimant at this preliminary hearing.

[4]This preliminary hearing had been listed on 29 May 2020. Due to the current situation regarding COVID-19 and following instructions from the President of Employment Tribunals (England & Wales) and guidance from HM Government, all final hearings in the Employment Tribunal were, at that time, converted to a telephone hearing for case management to take place instead of the listed hearing. The claimant therefore wrote to the Tribunal to request that the final hearing be postponed and that instead her application be considered. That request was granted.

[5]This preliminary hearing therefore took place on what would have been the first day of the final hearing of the claim. The “Code V” in the heading indicates that this was a remote hearing by video conference call to which the parties have consented and because the parties’ representatives are able to deal with preliminary issues remotely. The preliminary hearing

[6]This preliminary hearing was tasked with considering the claimant’s application for the following matters to be determined:(1) whether the response(s) filed by each of the respondents should be struck out, it being contended that: a) the respondents have conducted the proceedings in a scandalous, unreasonable and/or vexatious manner; b) there has been egregious non-compliance with Tribunal orders; c) it is no longer possible to have a fair hearing; and d) that the responses have no reasonable prospects of success.

(2) in the alternative, whether any of 5 specific allegations or arguments made by the respondents in their responses have little reasonable prospects of success such that the respondents should be liable to a deposit. The 5 specific allegations/arguments contested by the claimant are: the second respondent’s denial of control/knowledge, and therefore liability; the denial that the claimant made protected acts/disclosures; the assertion that the contract was ended due to financial management; the assertion that the contract was ended due to performance concerns; and the denial that any protected acts/disclosures were a material factor in the termination of the claimant’s contract.

[7]The claimant’s original application made on 4 February 2020, had also sought unless orders for disclosure of specific documents. That part of the application does not appear in Counsel’s redrafted application of 17 June 2020. At the start of this preliminary hearing, it was clarified by Counsel that the claimant did not pursue such matters today. In any event, it was agreed with the parties’ representatives that the Tribunal would deal only with those matters set out at paragraph 6 above.

[8]Further, Counsel for the claimant confirmed that the claimant’s application would be pursued only on the basis of items b), c) and d) of paragraph 6(1) above and that item a) was no longer pursued. Essentially, therefore, the application was pursued in respect of the respondents’ approach to disclosure and in respect of the issue of merits of the responses. Counsel for the first and third respondent told the Tribunal that the respondents had been informed that matter a) would not be pursued at 7.00pm the previous evening and he therefore reserved the respondents’ position on costs.

[9]There is considerable dispute between the parties over the factual detail in this case. The parties’ representatives agreed that, for the purposes of this preliminary hearing, the Tribunal was not tasked to make findings of fact or to hear evidence. Evidence and hearing arrangements

[10]The Tribunal was provided with 2 hard copy bundles of documents: one prepared by the claimant and the other prepared by the first and third respondents’ representative. To these were added a copy of a ‘Services Agreement’ between the first and second respondent. The Tribunal was told that the documents presented at this preliminary hearing formed a small proportion of the disclosure expected - it is clear from the requests for disclosure that there is potentially considerably more documentation to be put in evidence at a final hearing.

[11]The Tribunal was also provided with a witness statement from the claimant, and a witness statement from Ms Emma Mills, who is the solicitor with dayto-day conduct of the proceedings on behalf of the first and third respondents. The Tribunal read the statements and neither witness was called to give evidence in light of paragraph 9 above. Counsel for each party submitted a skeleton argument and a bundle of authorities. The Tribunal heard detailed submissions from each Counsel.

[12]As explained above at paragraph 5, this preliminary hearing took place by video conference. The case had attracted considerable public interest and the video conference was joined by up to 70 observers; the numbers varied as observers joined and left the conference from time to time. In the circumstances, and to maintain order, all the attendees were muted when the video “room” was opened. The Tribunal then went through the list of the parties, witnesses and representatives, un-muting them individually in order to say ‘hello’ and to clarify that it was only the representatives of the parties, as set out above, who would be speaking for each party during the hearing. The parties were advised that they would thereafter be muted during the hearing and that they should establish a method of communicating privately with their representative during the hearing, for example by email or text message. The observers were informed that they were muted and were also asked to switch off their cameras, in order to save bandwidth.

[13]Following a short discussion of administrative matters and opening statements by Counsel, the Tribunal adjourned for approximately 2 hours, to read the skeleton arguments, authorities, the witness statements and documents in the 2 bundles. Upon reconvening the hearing at 1.00pm, all attendees were muted as before and, as agreed, only Counsel for each party was un-muted so that they could speak. Counsel for each party appeared on the screen of the video conference throughout in 3 windows. Submissions commenced just after 1.00pm and each of the 3 representatives was given up to an hour to deliver their submissions. Relevant background

[14]Prior to September 2018, the claimant had been engaged as an HR consultant to work for the first respondent under a contract between the first respondent and Capita plc. From 1 September 2018, the first respondent engaged the claimant through the claimant’s personal service company, Interim Diversity Limited, until 27 November 2018. The claimant contends that her remit was equality, diversity and inclusion, including to address the work culture of the first respondent following an allegation of sexual harassment against a senior manager.

[15]The first respondent is a wholly owned subsidiary of the second respondent. It is the claimant’s case that the relationship between the first and second respondents is one of agency in that the first respondent acted as the agent of the second respondent. The third respondent is the HR director of the first respondent.

[16]In September 2018, the claimant was tasked to conduct a review of the first respondent’s HR department. It is the claimant’s case that the first and third respondent failed to act when the claimant passed on concerns which staff had raised with the claimant. On 9 October 2017, the claimant, and a number of senior HR managers, received an anonymous letter ostensibly written by HR staff, containing allegations about the third respondent’s conduct and the first respondent’s HR department leadership. The claimant contends that the contents of the letter reflected her concerns.

[17]On 16 October 2018, the claimant submitted a draft of her report and shortly afterwards the first respondent’s HR team met to discuss the report. The claimant advised that an investigation to address sexual harassment should be undertaken; that the respondent’s “Safe Call” policy was not being followed; and that HR management was conflicted in respect of complaints by its staff. It is the claimant’s case that the third respondent acted to suppress the claimant’s report.

[18]In late 2018, the first respondent entered into discussions about costs savings to address a financial shortfall. One area identified for savings was the money it spent on external consultants. In this context and because of what the first respondent says were concerns about the performance of the claimant, notice was given to end the claimant’s contract. The claimant says that the third respondent made the decision to end the claimant’s contract.

[19]The claimant had taken annual leave, returning on 29 October 2018. On her return, the claimant received a telephone call to inform her of the review of budgets as a consequence of which the claimant’s contract with the first respondent was to be terminated on 30 days’ notice. The contract end date was later confirmed to be 27 November 2018. The claimant contends that her contract was terminated because of the content of her report and recommendations, which she says were acts of whistle-blowing and which were not welcomed by the respondents. The claimant also relies on a report by PriceWaterhouseCoopers, which was commissioned by the second respondent after the claimant had left and which points to the same and continuing issues which the claimant had reported. The claimant’s application

[20]Counsel for the claimant made a number of detailed submissions which the Tribunal has considered with care but do not rehearse in full here. In essence it was asserted in respect of the conduct of the proceedings that:- the disclosure provided by the respondents was wholly inadequate because documentation was provided in response to the claimant’s FOI and DSAR which had not been provided during disclosure in the Tribunal proceedings; the claimant’s request for further disclosure went unanswered; the metadata for the letters of complaint had been removed and such was admitted by the first respondent’s solicitors; the respondents have therefore deliberately failed or refused to disclose documents in their possession; the respondents took advice on the claimant’s crowd-funding activities with a view, the claimant says, to preventing her accessing financial support thereby; the Information Commissioner is investigating the respondents; and, as a result of the respondents’ failure to give full disclosure, the claimant did not trust the respondents and so the Tribunal should conclude that a fair trial is no longer possible.

[21]In relation to merits, Counsel for the claimant submitted that: the case centres on why the claimant’s role ended; that there is no core of disputed facts - rather there is a core of disputed assertions; that the evidence does not support the respondents’ assertion that there were in fact any concerns about the claimant’s performance and therefore such a suggestion is false; the first respondent had embarked on further tendering for consultant services despite terminating the claimant’s contract; that the second respondent had invited the claimant to continue working for it despite the alleged performance concerns; and that the fact that the third respondent took the decision to terminate the claimant’s contract when she did can only be because of the claimant’s report and how it was received by the respondents.

[22]Counsel for the first and third respondents made a number of detailed submissions which the Tribunal has considered with care but do not rehearse in full here. In essence it was asserted that: - the respondents had acted in accordance with the overriding objective by taking a proportionate and reasonable approach to disclosure; that the respondents had provided additional voluntary disclosure; the respondents’ conduct did not involve any deliberate or persistent disregard of the Tribunal’s procedure; the fact that the respondents make “no admissions” as to certain discussions or their content does not indicate that they had misled the Tribunal and, in doing so, the claimant has mis-stated the respondents’ defences; that the claimant seeks to require the respondents to incur unnecessary expense because she expects disclosure which is beyond that which is relevant to the issues in the case; and the claimant’s complaints about the storage and transmission of data are not matters within the Tribunal’s jurisdiction and, in any event, the Information Commissioner is investigating;

[23]On merits, it was submitted for the first respondent that: the circumstances of the case are such that strike-out is not appropriate; there is a clear dispute of fact between the parties in this case; the issues of whether the claimant’s disclosure(s) were made in the reasonable belief of the claimant and in the public interest, and also whether the claimant was subjected to detriment(s) or victimised because of her disclosures, are all matters that the Tribunal should determine on the facts at a final hearing; that the performance concerns are evidence which needs to be explored and explained at a final hearing; and that the claimant’s application amounts to an attempt to deprive the respondents of the opportunity to pursue their defences.

[24]Counsel for the second respondent made a number of detailed submissions which the Tribunal has considered with care but do not rehearse in full here. In essence it was asserted that: - the second respondent had complied with the direction for disclosure and behaved appropriately in relation to disclosure; that the claimant has failed to appreciate the difference between disclosing relevant documents for the purposes of proceedings in the Employment Tribunal and providing personal data under a DSAR; that the claimant seeks certain documentation that is subject to legal professional privilege; and that a fair hearing is still possible.

[25]As to merits, Counsel for the second respondent supported what had been said by Counsel for the first and third respondents. It was also submitted that: the claimant had confused the role of the second respondent, as a governor commissioning a second report after the claimant’s contract had ended, so as to suggest this indicated that the second respondent had been involved or interested in the termination of the claimant’s contract.

Applicable law

[26]Rule 37 of the Employment Tribunal Rules gives a Tribunal the power to strike out all or part of a claim or response, at any stage of the proceedings upon the application of a party. The power to strike out is a draconian step which should be rarely exercised.

[27]Rule 39 of the Employment Tribunal Rules gives a Tribunal the power to make a Deposit Order in circumstances where the Tribunal considers that any specific allegation or argument in a claim or response has “little reasonable prospect of success”. The threshold for the making of a deposit order is therefore lower than that for strike out.

[28]Rule 41 of the Employment Tribunal Rules provides that the Tribunal may regulate its own procedure, giving effect to the overriding objective and avoiding undue formality, and that the Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts. Parties to proceedings in the Employment are therefore required to disclose those documents in their possession or under their control which are relevant to the issues to be determined in the case and, in doing so, must not mislead the Tribunal or the other parties as to the effect of those documents which have been disclosed.

[29]Rule 31 gives the Tribunal the power to order disclosure or documents at the Employment Judge’s discretion. The overarching factor is relevance and the Tribunal can exercise its discretion not to admit evidence which is only marginally relevant to the issues in the claim or which is unnecessarily repetitive. In addition, there is an ongoing duty of disclosure, so that documents which come to light after the date of an order for disclosure shall be disclosed once they become available, or once their relevance is apparent.

[30]It is important that parties comply with case management orders. However, it does not inevitably follow that the sanction for a failure to comply with a case management order is a striking out of the claim or response. The appropriate sanction depends upon a range of circumstances. The power to strike out the claim must be exercised in accordance with the overriding objective in rule 2, which is to deal with a case fairly and justly. A claim or response should only be struck out if it is a proportionate response to the offence: Bennett v Southwark London Borough Council

[2002] IRLR 407

. It will be a very unusual case in which a Tribunal is justified in striking out a response on procedural grounds when a claim is approaching trial: James v Blockbuster Entertainment Limited

[2006] IRLR 630

. In general terms, striking out a response will only be proportionate where a fair trial is no longer possible.

[31]The merits of a claim or response must be assessed by reference to the pleadings alone: Chandhok v Tirkey

[2015] ICR 327

. Striking out of a discrimination claim or response is therefore an exceptional course of action for a Tribunal because such claims are fact-sensitive and the reverse burden of proof requires careful evaluation and is a matter of high public interest: Anyanwu v South Bank Student’s Union

[2001] IRLR 305

. Where there is a core of disputed facts, a Tribunal should not pre-empt the determination of the case at a full hearing by striking out the claim or response.

[32]Section 43B of the ERA provides that a disclosure qualifying for protection is a disclosure of information which, in the reasonable belief of the worker is in the public interest and tends to show one of 5 matters set out in section 43B.

[33]Section 27 of the EqA provides that a person(a) (A) is victimised by another

(b) (B) if the person, A, does a protected act and is subjected to a detriment by the other person, B, because A did the protected act. A protected act includes making an allegation that B or another person has contravened the EqA.

[34]In the course of submissions, Counsel for each party referred the Tribunal to a number of authorities, including the Presidential Guidance on General Case Management and case law as follows: Lana v Positive Action Training in Housing (London) Limited [2001] IRLR ASLEF v Brady

[2006] IRLR 576

ABN AMRO Management Services, Royal Bank of Scotland v Hogben [2009]

UKEAT/0266/09

Patel v Lloyds Pharmacy Limited [2013]

UKEAT/0418/12

Sud v London Borough of Hounslow [2015]

UKEAT/0156/14

Hak v St Christopher’s Fellowship

[2016] ICR 411

Hemdan v Ishmail and another

[2017] ICR 486

Unite the Union v Nailard

[2018] IRLR 730

Chidzoy v BBC [2018]

UKEAT/0097/17

ED&F Main Liquid Products Limited v Patel and another [2003] EWCA Civ Weir Valves & Controls (UK) Limited v Armitage

[2004] ICR 371

Ezsias v North Glamorgan NHS Trust

[2007] EWCA Civ 330

Balls v Downham Market High School & College [2010] UKEAT/03436/10 Tayside Public Transport Co. Limited v Reilly

[2012] CSIH 46

Mechkarov v Citibank NA

[2016] ICR 1121

Mbuisa v Cygnet Healthcare Limited [2019]

UKEAT/0119/18

HM Attorney General v Barker [2000] co/4380/98 De Keyser Limited v Wilson

[2001] IRLR 324

Pearson Education Limited v Prentice Hall India Private Limited

[2005] EWHC 636

QB Pillay v INC Research UK Limited [2011]

UKEAT/0182/11

Arriva North London North Limited v Maseya [2016]

UKEAT/0096/16

The Tribunal took these cases as guidance but not in substitution for the statutory provisions.

Conclusions

[35]The Tribunal first considered the allegations made by the claimant about the respondents’ approach to disclosure.

[36]On 31 July 2019, at a case management preliminary hearing, the Tribunal made an Order for disclosure by the parties of “a list of all documents that they wish to refer to at the final hearing or which are relevant to any issue in the case” and copies were thereafter to be provided upon request by another party. The Tribunal considered that the wording of the disclosure order is important. It does not require the parties to provide copies of every single document relating to the claimant or her company’s contract with the first respondent. Relevance to the issues in the case is required.

[37]This is a claim about protected disclosures and detriment, and a claim of victimisation. At the final hearing, a Tribunal will have to determine whether, in accordance with the definition in section 43B ERA, the claimant made disclosures which qualify for protection and if she had a “reasonable belief” in the disclosure(s) she made. Likewise, the Tribunal will have to determine whether allegation(s) related to the EqA were made. If the disclosures and allegations are protected, the Tribunal shall decide whether the claimant suffered the detriment contended for and if so, whether the detriment was because of the protected disclosure or protected act. However, it is not the task of a Tribunal, in dealing with such claims, to determine the veracity, facts or substance of the protected disclosure(s) and/or allegation(s) contended for.

[38]The Tribunal considered the documentation which the claimant says was not disclosed and the issues in the case. The Tribunal concluded that the claimant has misunderstood the duty of disclosure in Tribunal proceedings which is in effect limited to the disclosure of those documents relevant to the issues. The claimant has confused such a duty with the requirement of disclosure in response to the SAR, which is an absolute duty to disclose everything relating to the individual making the SAR. In the circumstances, the Tribunal considered that the respondents had not breached their duty of disclosure when they did not disclose all documents in their possession which relate to the claimant or her company’s contract.

[39]The Tribunal also considered that it would be disproportionate to strike-out the responses merely because the claimant alleges that more documents are in the respondents’ possession than have been disclosed. The requirement is relevance to the issues in the case. In any event, as the claimant has obtained the further documents through her SAR, it is open to her to introduce those documents by way of disclosure under the ongoing duty of disclosure if she considers they are relevant to the issues.

[40]The Tribunal noted that the claimant has argued that the respondents had deliberately failed to comply with the Order for disclosure. However, there was no evidence to support the suggestion of a deliberate act by the respondents, or any of them, in this regard. Submissions for the claimant focussed on an allegation that there was little documentation disclosed by the respondents of communications between its personnel about the reasons for termination of the contract as advanced by the first and third respondents, and that notes of the claimant’s termination meeting had come to light only through the SAR. The latter allegation was shown to be incorrect, however, as the notes in question appear in the first respondent’s disclosure list, as item 209. The Tribunal accepted the respondents’ submission that much of the communication was oral and not recorded at the relevant time; such matters are best dealt with in oral evidence and cross-examination. The claimant argued that the first respondent’s new contracts for HR services, their timing and value, were matters which had not been addressed in the respondents’ disclosure and which she believed should have been. However, it is the first respondent’s case that the need for financial savings extended throughout the business, not just its HR functions, and that the claimant’s contract was one small part of a wider exercise. Hence, when the claimant claims that the respondents spent £millions on contracts after hers was ended, such figures relate to a largescale re-contracting process and are therefore not relevant in the way the claimant believes. Disclosure of such would be disproportionate.

[41]The claimant pointed to the fact that the second respondent had disclosed only one document in response to the order for disclosure, but had produced a further document on the morning of this preliminary hearing. The second respondent’s case is that it had no involvement in the management of the claimant or the service company’s contract/its termination, whereas the claimant’s case is that the second respondent must have had some form of control over the first respondent because it proceeded to investigate the first respondent, through PriceWaterhouseCoopers, after the claimant had left. The second respondent disputes the claimant’s view of its relationship with the first respondent and maintains that it has no relevant documents. The Tribunal considered the position but did not find that the fact that the second respondent’s disclosure consisted of 2 documents, one of which was late, must lead to a conclusion that the second respondent had deliberately, or even inadvertently, withheld relevant documents from the claimant.

[42]The allegation of a deliberate failure to comply with the Tribunal’s Order for disclosure, is a very serious allegation to make. The Tribunal did not find that it was made out in this case in respect of any of the respondents. Many serious allegations contained in the original application, of 4 February 2020, have been abandoned prior to this preliminary hearing. In addition, the first respondent’s solicitor had given a reasonable explanation about what had happened in respect of the meta-data for the complaints and the oversight had since been rectified.

[43]In addition, the Tribunal considered the claimant’s submissions on the matter of the respondents having sought advice on the claimant’s crowdfunding activities with a view, the claimant says, to preventing her accessing financial support thereby. The Tribunal read the documents in the claimant’s bundle on this point which suggest that the second respondent had sought advice on taking down a crowd-funding page set up by the claimant. The Tribunal considered that a party is entitled to take advice on the activities of another in litigation but that such conduct as was evidenced by the documents did not amount to unreasonable conduct or obstruction of the claimant. In addition, the Tribunal accepted the submission of the second respondent’s Counsel, that the claimant had published statements about the case and the respondents, on the crowd-funding site, which were highly contentious and, as public bodies, the respondents felt bound to investigate what action was available to them in light of the statements made.

[44]The Tribunal approached its consideration of the claimant’s application for strike out on merits by taking the respondents’ responses at their highest.

[45]The first and third respondents advance arguments that the contract for the claimant’s services was terminated in the context of a funding shortfall across the business and consequent need to reduce the first respondent’s spending on consultants, such as the claimant, and where it was decided that the claimant’s contract should be cut because the first respondent determined that the claimant did not provide value for money due to poor performance. The contract in question provided for early notice of 1 month, to terminate, and there is no suggestion that the first respondent was in breach of contract by giving notice as and when it did. Further, the first respondent contends that the fact that the second respondent offered the claimant an opportunity to work for it, after the termination of her contract with the first respondent does not, of itself, negate what the first respondent says about funding and performance issues and also serves to indicate that the first and second respondent acted independently of each other.

[46]The claimant is concerned that performance issues were introduced through the disclosure of 3 letters of complaint which had not been shown to her before or specifically referred to in the pleaded responses. The claimant argues that these letters were so related to the protected acts that they should have been included in the respondents’ relevant disclosure in any event. As a result, the claimant is suspicious of their provenance, a suspicion unfortunately compounded by the inadvertent removal of the meta-data by the first respondent’s solicitors’ digital security system, albeit that the matter has since been clarified and corrected.

[47]The second respondent’s case is that the first respondent is a wholly owned subsidiary of the second respondent, but it is a separate legal entity to the second respondent and not its agent, and that the second respondent has no control over the first respondent and had nothing to do with the contract for the claimant’s services. The claimant’s contentions as to an agency relationship remain unclear.

[48]The detriment contended for is the termination of the claimant’s service company’s contract by the third respondent, on behalf of the first respondent and the claimant says that the second respondent had an involvement in that decision. The basis for the decision to terminate that contract and the timing of that decision, apparently coming so soon after the claimant says she made protected disclosures and allegations are important matters that the respondents must explain. There are 3 letters of complaint which support the first and third respondents’ position as to performance issues. It is therefore entirely possible that the contract for the claimant’s services did not provide value for money as the respondents contend.

[49]In essence, the claimant’s submissions on the merits, or lack of merits, of the responses rely upon a number of matters which she has presented as fact, where the Tribunal considered that such matters amount to the claimant’s version of events and contentions as to a situation without regard to the respondents’ cases or explanations. Counsel for the first and third respondents highlighted a number of inconsistencies and inaccuracies in the claimant’s case, for example, a contention about matters said to be known about a Safecall in August 2018, which was in fact not made until early September 2018, and the suggestion that the respondent had imposed only one ‘litigation hold’ on documents, when there had been several. In addition, Counsel submitted that the claimant’s concerns about the 3 complaints arose because she simply does not want those matters to be put in evidence against her and he suggested that the claimant had unreasonably inflated her application to include a contention that the complaints were fabricated without any foundation for such a serious suggestion. In those circumstances, Counsel questioned the credibility of the claimant’s approach to the litigation and this application.

[50]It is apparent to this Tribunal that there is a significant core of disputed facts in this case, and a number of matters that will require oral evidence. The Tribunal at the final hearing will need to make careful findings of fact on many aspects which are not evidenced by the documents. Whilst the Tribunal understands that there is a significant amount of documentary evidence, it also understands that the respondents will call 8 – 10 witnesses to give oral evidence, and that a number of matters of evidence are not illuminated in the documentation. In those circumstances, the Tribunal has decided that the responses in this case cannot be said to have no or little reasonable prospects of success and that strike out, or indeed Deposit Orders, are not appropriate. To determine otherwise would be to pre-empt the final hearing in the absence of witness testimony which is essential evidence in such a fact sensitive case as this one.

[51]The Tribunal therefore considered that the claimant’s claims of detriment for whistle-blowing and victimisation for allegations of discrimination should proceed to a final hearing together with the responses which shall not be struck out. A fair trial is still possible. The Tribunal will need to investigate why the respondents acted as they did at the relevant time, at a fully contested final hearing. Given the core of disputed facts between the parties, the Tribunal considers it is not appropriate to deprive the respondents of the opportunity to defend this claim.

[52]For all the above reasons, the claimant’s application must fail. The responses shall not be struck out and deposit orders shall not be made. The claim shall proceed to final hearing, notice of which shall follow in due course.

The Hearing

[1]The case was heard over 13 days, including reading days, with day 14 being reserved for the tribunal to deliberate in private. Written reasons for the decision, which is unanimous, are therefore now provided.

[2]The tribunal heard evidence from the Claimant, and from K Connor (a former employee of the First Respondent) and R Denwood (from the GMB union) on her behalf. Other witnesses whose statements had been duly served, were not required to be called to be cross-examined.

[3]For the First and Third Respondents, in addition to the Third Respondent H Roberts, the following gave evidence: A Rankin (Equality, Diversity and Inclusion Lead); R Weston (Chief Operating Officer); E McDonnell (Head of Resourcing); J Petrie-Rout (then Head of Talent and Leadership); A Lohan (People Services Lead); A Thompson (then head of Organisation and Reward - by CVP); F Shand (then Organisational Development and Reward Specialist) and L Bowen (then People and Transformation Lead). T Morris (Head of Portfolio Office) was unavailable to be called.

[4]The Second Respondent called M Barber (HR Director -by CVP); D Vineall (Group Chief People Officer), and P Vallance (Group Chief Communications and Stakeholder Relations Officer). There is an agreed bundle of 1713 pages.

[6]The parties have helpfully referred us to the relevant authorities within their respective written submissions, though in reality it is agreed that the law is not controversial.

Introduction

[7]The Claimant is a consultant specialising in the field of Equality, Diversity and Inclusion (EDI). She has extensive experience and has provided evidence of the high regard in which she is regarded by those with whom she has worked.

[8]The First Respondent is a limited company operating the Sellafield nuclear site in Cumbria, which forms part of “the estate” of the Second Respondent. Since 2016 it has been a wholly owned subsidiary company of the Second Respondent.

[9]The Third Respondent was the First Respondent’s director of HR. She joined the company in 2016 as deputy director, with extensive experience in accountancy and in HR. In September 2017 she was promoted following the premature departure on health grounds of the then director of HR. She had therefore been in post, at the relevant time, for about a year.

[10]The Second Respondent is a non-departmental government body created pursuant to the Energy Act 2004 responsible for decommissioning seventeen nuclear sites (“the estate”) and sponsored by the Department for Business, Energy and Industrial Strategy.

[11]From 2016 the Claimant had worked for the Second Respondent, to whom her services were supplied by Capita. Initially this was as an agency worker, but latterly she was engaged by Capita through her own company Interim Diversity Ltd. (IDL). She worked for the Second Respondent across its estate, including at Sellafield, and was instrumental in developing its EDI strategy.

[12]After Capita’s contract with the Second Respondent ended in August 2018, IDL was commissioned by the HR department to be engaged directly by the First Respondent. This was under a contract commencing on 1st September 2018 and for an 18-month fixed term. The daily rate payable, on an anticipated two days per week, was £1500 plus expenses. L Bowen, on behalf of the HR department had submitted a business case to the First Respondent’s procurement board to authorise this direct engagement of IDL without going to tender. The cost was no more than the Second Respondent had previously paid Capita to secure the Claimant’s services and the business case acknowledged the Claimant’s expertise in EDI and emphasised the importance of continuity. Internal correspondence however clearly recognises the awareness of the need for IDL to continue to provide “added value”.

[13]The Claimant, albeit the only one, was at all times the employee of IDL. The precise nature of the services to be supplied was never, however, clearly defined. A “scoping meeting” on 15th October 2018 between the Claimant, L Bowen and A Rankin only went so far towards mapping out the projected EDI work plan up to the end of the contract.

[14]That contract with IDL was lawfully terminated upon 30 days’ notice given on 29th October 2018 to expire on 27th November 2018. Under the terms of the contract termination on notice could be “for convenience” and did not require any reasons to be given.

[15]It is not therefore accurate to speak of the Claimant as having been dismissed, nor of “her contract” having been terminated.

[16]It is however accepted that the Claimant was a worker for the First Respondent within the extended meaning of section 43K of the Employment Rights Act 1996.

[17]She was also a contract worker supplied by IDL to the First Respondent as defined by section 41 of the Equality Act 2010.

The Issues

[18]The claims are of being subjected to a detriment because of having made a protected qualifying disclosure under section 47B of the Employment Rights Act 1996, and/or having been victimised under section 27 of the Equality Act 2010. The protected act relied upon for the purposes of victimisation is, where applicable, the same as the protected qualifying disclosure.

[19]There are 8 alleged disclosures relied upon. Only the first 6 of those are in fact properly so described, because disclosures made to the Second Respondent cannot form the basis of any liability on its part for any alleged detriment to which it therefore subjected the Claimant.

[20]The Second Respondent will only be liable if in committing any act of victimisation the First Respondent was acting as its agent (section 109 Equality Act) or if it instructed, caused or induced an act of victimisation – the “basic contravention”- (section 111) or if it aided it (section 112).

[21]The Second Respondent is not in any event liable in respect of any alleged protected disclosure detriment.

[22]The issues in the case are therefore can the Claimant prove that she made a disclosure, and, if so, what were the precise terms? Does that disclosure amount to a protected qualifying disclosure (section 43B(1) of the Employment Rights Act) or the doing of a protected act (section 27

[23]This case is not about whether there was a so-called “toxic culture” at Sellafield.

[24]Nor is it about the experience or capability of the Third Respondent to perform in the role of HR director. It is, however, clear that although she had the support of the CEO of the First Respondent, she did not similarly enjoy the confidence of P Vallance or D Vineall of the Second Respondent.

[25]Nor is it for this tribunal to make any findings in respect of allegations of harassment against any individual, particularly where that person has not been able to defend themself. The Alleged Disclosures

[26]The alleged disclosures are identified in the list of issues as follows.

[27]On 12th September 2018, the Claimant advised Ms Roberts that an investigation should be conducted immediately to address harassment in the workplace.

[28]On or around 24th September 2018, the Claimant stated to Ms Roberts in unequivocal terms that whilst she was happy to speak to the employee in question the correct course of action was a formal investigation since the Claimant did not have the authority to conduct such an investigation.

[29]This is not now pursued as a protected act but only as a protected qualifying disclosure.

[30]On 28th September 2018 and following discussion with RS and JN on the same day, the Claimant stated to Ms Bowen that immediate action be taken, not least so as to avoid compounding the impression that systemic issues were ignored or mishandled.

[31]On 2nd October (now amended to 1st October) 2018, and following a concern expressed by FW as to the wellbeing of CL the Claimant urged Ms Bowen to take prompt and meaningful actions to investigate how the HR team had allowed the situation to develop.

[32]On 15th October 2018, after having been told that Ms Roberts had disclosed an August “Safecall” to A Rankin of the First Respondent’s HR department, the Claimant stated to Ms Weston that Ms Roberts had breached the confidentiality requirements of the “Safecall” procedure. This allegation is now withdrawn in its entirety.

[34]On 16th October 2018, the Claimant submitted her draft report to the HR department.

[35]On 17th October 2018, the Claimant informed Mr Vallance (NDA Executive of EDI) of her concerns as to the functioning of the HR department and its ability to address systemic workplace issues “in its own yard” and beyond.

[36]On 29th October 2018, the Claimant informed Mr Vallance that L Bowen/the First Respondent had served notice to terminate her contract and that he might want to obtain a copy of her recent HR EDI Report to provide context that she had a strong suspicion that she had been served notice on her contract in a bid to suppress wrongdoing. The Alleged Detriments

[37]The alleged detriments to which the Claimant was subjected are identified in her list of issues as firstly (“Detriment 1”) failures to investigate or take action in relation to disclosures 1 and 3 to 8, including in respect to disclosure 1 the Third Respondent “attempting to pressure the Claimant into being part of an ill-conceived covert investigation and caused or contributed to acute anxiety and distress”, and in respect of failure to investigate disclosure 8 after 29th October 2018 this contributing to the eventual termination of the IDL contract at the end of the notice period.

[38]Secondly, (“Detriment 2”) it is alleged that the aiding or inducing of the decision to dismiss is somehow in itself a detriment, rather than something which may give rise to liability under section 111 of the Equality Act 2010. This is in relation to representations in writing made to the Third Respondent by T Morris, E McDonnell and A Thompson who are all of course employees of the First Respondent but are not named individual respondents. It is also in relation to representations purportedly made by D Vineall of the Second Respondent to the CEO of the First Respondent in circumstances where the Second Respondent cannot itself be liable as a primary party for the alleged basic contravention, which is the termination of the IDL contract.

[39]Thirdly (“Detriment 3”) the decision of the Third Respondent to “dismiss the Claimant” and also, (“Detriment 5”) the fact of the “dismissal” on notice are both said to be detriments.

[40]It is accepted that the lawful early termination of the contract with IDL before the expiry of its limited term, nonetheless, constitutes a detriment to the Claimant as an individual worker employed by IDL.

[41]Fourthly, (“Detriment 4”) it is alleged that the “approving, authorising or failing to prevent dismissal” is also somehow itself a detriment, rather than something which may give rise to liability under section 112 of the Equality Act 2010. In so far as this relates to the CEO of the First Respondent, he was of course its employee but is not a named respondent. In so far as it relates to D Vineall or P Vallance of the Second Respondent, this is again in circumstances where the Second Respondent cannot itself be liable as a primary party for the alleged basic contravention, which is the termination of the IDL contract.

[42]Fifthly, (“Detriment 6”) the manner of the Claimant’s “dismissal” is also said to be a detriment. That is, the telephone call from L Bowen was brusque, the Claimant was not thanked for her previous work, A Rankin was listening in on the phone call and there was then no further communication from the HR team.

The Facts

[43]It is convenient to set out the material facts in their immediate context by grouping them by reference to those alleged disclosures. It is only necessary to set out those facts that are relevant to the issues we have to decide.

[44]On Thursday 6th September 2018, following an HR team away day on 5th September and apparently prompted by something which had happened then, there was an anonymous message sent to “Safecall” outlining allegations against VC, a member of the First Respondent’s HR lead team: (doc 763-765).

[45]On Friday 7th September 2018 this was forwarded by Safecall Ltd. in a report to A Carr who is the First Respondent’s legal counsel: (doc 773).

[46]Although the report is titled “HR-Sexual Harassment” it should be noted that it does not in fact contain any statement that any person (or persons) submitting the complaint via “Safecall” has themselves been the direct victim of any such act. Nor does it describe any acts which might properly be categorised as overtly sexual molestation or “groping”. It speculates as to those who may have been subject to inappropriate touching, but this was only understood to have been on the arm or shoulder. The complaint of the use of inappropriate language is similarly not made directly and the precise comments which are alleged to have been overheard by others are not particularised. Whilst any raised concern about sexual harassment is necessarily to be taken seriously, this report does not, as initially submitted, condescend to any great detail.

[47]On Monday 10th September 2018 it was forwarded by A Carr to T Houghton, the First Respondent’s Head of Complaints and Compliance, and the Third Respondent was also notified (doc 773).

[48]On Tuesday and Wednesday 11th and 12th September 2018 the Third Respondent has recorded that she spoke to L Bowen, J Petrie-Rout, E McDonnell, PW and AL all of whom had been identified in the “Safecall” report as potentially having information about VC’s alleged behaviours – though the reference to AL was not in connection with any alleged form of sexual harassment: (3rd Respondent’s memo of 7th November 2018 doc 1069).

[49]Although L Bowen says that she was not in fact spoken to by the Third Respondent at this stage, what is recorded as having been her response is nonetheless confirmed in her oral evidence as being true. That is, that she had once in the past objected to VC touching her on or about the upper arm but that this “tactile” approach was not confined to women, and she expressly did not consider this to have been sexual.

[50]J Petrie-Rout does recall being spoken to at the time by the Third Respondent about a “Safecall” report. She did not report any concerns that had come from her team arising out of the away day on 5th September. Nor did she wish to make any complaint on her own behalf but did confirm in her evidence that she had felt sufficiently confident to address the issue directly when VC had touched her on the arm.

[51]The assertion in the ET1 that the Third Respondent told the Claimant on Wednesday 12th September 2018 that “she had sat on this report for weeks” and had taken no action is therefore demonstrably false. She had at this time only known about the report for two days and had already taken steps in connection with it.

[52]On the direction of A Carr, the Third Respondent did however then, on 12th September 2018, approach the Claimant to invite her to carry out focus groups with members of the HR function, so as to provide a confidential environment where any concerns about VC which might substantiate further investigation into the “Safecall” allegations could be identified. The Claimant’s own oral evidence as to how this was put to her was that she was asked to “flush out if there were any issues regarding VC.”

[53]The Claimant was not, however, shown the report, and nor did the Third Respondent have a copy in front of her at the time. The Claimant was therefore ignorant of the actual substance of the report and remained so until disclosure took place in these proceedings.

[54]It is accepted, however, that the Claimant was at least informed that the report contained allegations of sexual harassment against VC and there was also an allegation that there had been some sort of “cover up”.

[55]It is common ground that the Claimant expressed an opinion that there ought to be formal investigation. The best and most plausible account of what she actually said comes from the evidence in cross-examination of the Third Respondent, and which is accepted by the Claimant in closing submissions as accurate. She said that the Claimant’s words were “if there’s an allegation like that, you really need to undertake a formal investigation” (emphasis added).

[56]We accept the evidence of the Third Respondent that she was perfectly aware of the obligations on the First Respondent to seek to eliminate discrimination or harassment, and that this would necessitate the carrying out of a formal investigation where there was sufficient evidence.

[57]In the Claimant’s oral evidence, it was clear that she expressed this opinion only after the invitation to conduct focus groups had already been voiced. The Third Respondent’s evidence was, however, that it was said before a discussion of A Carr’s advice as to how a preliminary investigation might in fact be carried out.

[58]Because the Claimant did not know what was actually contained in the report she cannot have expressed, and did not express, any informed opinion as to the format of any alternative “formal investigation”, either as to how it should have been conducted or who should have been interviewed.

[59]It was not until the Claimant’s revised list of issues was submitted on 13th May 2021 that it was alleged that the Claimant had been subjected to a detriment by reason of the fact that “instead of undertaking a formal investigation, Ms Roberts attempted to pressure the Claimant into being part of an ill-conceived covert investigation and caused or contributed to acute anxiety and distress”.

[60]It was only in cross-examination that the Claimant first stated that she had disclosed that the so-called covert investigation was, as she understood the ACAS Code of Practice on Disciplinary Procedures, a breach of VC’s alleged right to be informed of the charge against him at this stage. This is, of course, an erroneous understanding of the code, which is not concerned with the preliminary investigation to establish the facts but only where it is then decided that there is a potential disciplinary case to answer.

[61]It was agreed that the Claimant would conduct a series of “Respect and Inclusion Focus Groups” or individual interviews with members of the HR function. The Claimant and the Third Respondent spoke further about this on Monday 17th September 2018.

[62]On the night of Thursday 13th September 2018, the Claimant called an ambulance and was taken to A&E with what the doctor, however, recorded on the admission form as “non-concerning chest pains” for which she was “reassured”: (doc 839). The Claimant did not inform A Rankin of this hospital admission when she spoke to him the next day.

[63]On Friday 14th September 2018 T Houghton caused a further message to be placed on the “Safecall” system inviting the person who had submitted the initial concern to contact himself, A Carr or the Third Respondent. No response to this request was ever received: (doc 838)

[64]On 17th September 2018 the Third Respondent’s father died. She was then continuously absent from Sellafield until 15th October 2018, because she was on compassionate leave (up to 21st September), was working remotely so as to be closer to her family, or was on holiday (from 8th October).

[65]The Claimant drafted the terms of reference for her focus groups and sent a draft to the Third Respondent for approval on 21st September 2018: (doc 866).

[66]The email to the HR team inviting them to participate in the Claimant’s “Facilitated Feedback Sessions” was then sent out in the name of the Third Respondent on 24th September 2018: (doc 868).

[67]The email invitation, as drafted by the Claimant, was not inconsistent with the Third Respondent’s understanding that this would afford an opportunity for any concerns about VC to be raised.

[68]On 25th September 2018 the Claimant sent a further email to the Third Respondent setting out a number of further questions which, in addition to obtaining anecdotal evidence in oral discussion, she also now proposed to put in writing to the participants in her enquiry. These questions did in part focus attention directly upon levels of satisfaction with the HR lead team and The Third Respondent in particular and asked, for instance, whether the responder respected the HR Director, somewhat respected her, somewhat disrespected her or disrespected her. Other questions similarly required an answer on a four-point-scale: (doc 880). The Third Respondent did not reply but did not therefore dissent from that revised proposal.

[69]The focus groups took place on 27th and 28th September 2018. Individual interviews with the members of the HR lead team, either by telephone or in person, were also scheduled for 1st and 2nd October 2018, though that with A Thompson had to be put back to 11th October 2018.

[70]The focus groups/interviews did in fact afford an opportunity for participants to have reported any express concerns about VC. E McDonnell was specifically asked whether she had “ever not felt respected by VC” and confirmed that had she herself had any issues about his behaviour this is where she would have raised them (emphasis added).

[71]After the first focus group sessions on 27th September 2018 the Claimant reported orally to the Third Respondent that one participant, SP, had spoken of historic concerns regarding VC. The notes of the focus groups/interviews are clearly material and ought to have been disclosed. They have not, however, been retained and the Claimant does not say what has actually happened to them.

[72]At the second set of focus group sessions on 28th September 2018 we accept the evidence of one of the participants, F Shand, that the Claimant initiated a private conversation with him. At the focus group which he had attended he recalls a number of comments suggesting that others in the group were aware of people having felt uncomfortable as a result of something which VC had done: F Shand characterised this in his oral evidence as being like “gossip”. He, however, explained to the Claimant that, whilst he would be prepared to speak to the Third Respondent, he did not have any direct experience of VC behaving in a “sexist manner” and nor had he personally been made to feel uncomfortable, although he had experienced what he described as “ribbing” about his hair colour or his quiet nature. He said that he was not 100 per cent sure at the time that the matter would in fact then be referred to the Third Respondent.

[73]On Thursday 4th October 2018 T Houghton requested an update from A Carr on the “Safecall" report, either upon any progress made by the Claimant – who is referred to, not strictly accurately, as our “NDA facilitator” – or upon any reply to the post on 14th September: (doc 926). The reply from A Carr’s legal secretary was that “Heather is progressing with Alison and will update us when she is back from leave but nothing further to investigate at this point.”

[74]On Monday 8th October 2018 an anonymous letter, ostensibly written by a number of members of the HR department, was sent to senior members of management at both the First and Second Respondents including D Vineall and P Vallance: (doc 932). Although not herself a named recipient the Claimant says that she also received a copy at her home address. The letter was highly critical of the Third Respondent.

[75]That anonymous letter alleged, inter alia, that: “Serious problems re sexual harassment are being ignored. Someone has recently raised an issue re sexual harassment regarding one of the HR leaders and Heather has taken no action.” Whilst this does not specifically refer to the “Safecall” report, anyone who was in fact aware of that matter would obviously have connected the two.

[76]On Friday 12th October 2018 T Houghton, clearly in connection with the anonymous letter, contacted A Carr again to inform him that: “I started “tactful discussions” with trusted individuals but it is rapidly becoming apparent that Heather and Alison have done rather more than I was aware of”: (doc 947). When she returned to Sellafield on Monday 15th October 2018 the Third Respondent was informed by the First Respondent’s Chief Executive about the anonymous letter but was not actually given a copy.

[77]Upon her return the Third Respondent prioritised her dealing with the outcome of the Claimant’s focus group/interviews. On speaking to the Claimant on 15th October the Third Respondent asked about any information that had been obtained and which related to the "Safecall” report and was informed that it was only F Shand who had expressed any concerns regarding VC. The Third Respondent then queried the situation regarding SP which had already been reported to her on 27th September 2018, and the Claimant told her that she would check her notes.

[78]The draft report was written up by the Claimant on Tuesday 16th September 2018 and was emailed to the Third Respondent at 9.28 pm that day: (doc 959).

[79]Within that accompanying email the Claimant expressly recorded that “I have not included the issue re VC”. She also notes that “And obviously not appropriate to record the comments [F Shand] made as they were made under the strict condition of confidentiality and I didn’t want to put anything in writing”.

[80]On Thursday 18th October 2018 D Vineall spoke to the Third Respondent about the anonymous letter and the investigation into sexual harassment. Although the Third Respondent refers to this in her personal “timeline” dated 16th November 2018 as being about the “Safecall” that would obviously be because she herself would have made the connection, and does not necessarily indicate that it was D Vineall who also referred to it in that way. She informed D Vineall that she was, on advice from A Carr, using the Claimant to undertake focus groups. At this point the Third Respondent had not yet shared the content of the draft report with the HR lead team, and we accept her evidence that she was therefore still contemplating further potential input from the Claimant in relation to VC. In particular, she had not by this stage received any additional information about what SP had reported and had not yet spoken to F Shand.

[81]On Friday 19th October 2018 the Third Respondent requested a new copy from T Houghton of the “Safecall” submission: (doc 1001).

[82]On Monday 22nd October D Vineall met with the Chief Executive of the First Respondent, again clearly in the context of having received the anonymous letter, and was once more assured that the sexual harassment case was being addressed: (doc 1008).

[83]On Wednesday 24th October 2018 the Third Respondent met with F Shand: (doc 1069).

[84]On Thursday 1st November the Third Respondent, together with the First Respondent’s former HR Director, spoke to VC regarding the allegations against him and her report to T Houghton was dated 7th November 2018: (doc 1069).

[85]On 16th November the Second Respondent’s Chief Compliance Officer recorded that he did not agree with the reasons for closing out the investigation and indicated that he intended to commission a further investigation into whether or not the complaint into the alleged ignoring of problems regarding sexual harassment as set out in the anonymous letter of 8th October should be reopened: (doc 1080). This is understood to have concerned a potential new witness, who was on secondment between the First and Second Respondents so that the matter potentially fell within the remit of the NDA.

[86]Apart from such matters as may have come to light in the course of her focus groups/interviews the Claimant remained ignorant as to the nature of any further allegations against VC or the steps being taken to address those concerns.

[87]Although out of the time frame with which we are concerned an executive director of the First Respondent carried out nineteen fact finding interviews and concluded on 21st December 2018 that there was no case to answer in relation to the “Safecall” allegations: (doc 1120). Disclosure 2.

[88]On 24th September 2018 the letter from the Third Respondent inviting participation in the “Facilitated Feedback Sessions” was received by SG, a former member of the HR department.

[89]She responded by email timed at 3.54 pm on the same date stating that she would not be able to make the proposed dates for a meeting but set out a number of concerns in her email reply, which she also copied the Claimant into: (doc 874).

[90]This was not in fact, as the Claimant has alleged in the pleadings, a grievance under the First Respondent’s procedure and was clearly never regarded as such by SG herself.

[91]The email alleged that SG had been treated with disrespect by one of the HR lead team, but that she “did not actually feel bullied”. That person was not named, but there is no dispute that it refers to L Bowen.

[92]The email makes no reference whatsoever to any potential complaint of discrimination under the Equality Act 2010. It is now conceded that this cannot therefore provide a context in which anything the Claimant said about this might constitute the doing of a protected act for the purposes of any victimisation complaint.

[93]The Third Respondent responded immediately at 4.20 pm acknowledging the email and asking SG to meet with the Claimant to discuss the matters in confidence. Alternatively, The Third Respondent offered to speak with SG herself, though a meeting in person would not have been possible until after 15th October. The Claimant was copied into that email reply: (doc 873).

[94]The Claimant and the Third Respondent spoke on the telephone at some stage on 24th September and the Claimant agreed that she would speak to SG.

[95]At its highest the alleged disclosure in that telephone conversation is now said by the Claimant in oral evidence to have been that although she would speak to SG she would not be positioned to conduct any actual investigation into “bullying” by a member of the lead team. Although the Claimant says that she made this comment specifically with reference to L Bowen, she would not in fact have known for certain at this stage against whom the complaint of disrespectful treatment was brought.

[96]The Claimant emailed SG at 8.58 am the following morning, 25th September 2018, to confirm that: “As Heather suggests we need to meet and I would like to understand in more detail exactly what happened (and) any wider observations you may have”: (doc 873).

[97]SG replied at 9.13 am (copying in the Third Respondent) and confirmed that she would be happy to speak one-to-one, but not in a focus group, and said that her complaint was against the person “championing EDI” – which although still not actually naming her no doubt served to identify L Bowen: (doc 872).

[98]We note that L Bowen strenuously denies any inappropriate behaviour during the incident in question, and it is no part of the Tribunal’s function to make any finding on this matter.

[99]The Claimant and SG did then subsequently speak by telephone for about an hour. There are, of course, no notes of that conversation and the Claimant has given no evidence as to what specifically was discussed. At the end of that conversation however the Claimant told SG that the Third Respondent would want to speak to her directly: (doc 1044)

[100]When the Claimant submitted her draft report on 16th October the covering email states that it “does not include the email SG sent” but erroneously, and somewhat inexplicably, states that “SG didn’t contact me”: (doc 959). The Claimant therefore never briefed the Third Respondent on the content of her discussion with SG.

[101]At 9.03 am on 25th October 2018 SG however – because she had been led to understand from the Claimant that this was the intention ‒ emailed the Third Respondent to arrange a meeting to speak to her directly about the “survey recently conducted and my feedback”. The Claimant, who was however on holiday at that time, was copied into that email: (doc 1010).

[102]The Third Respondent replied promptly at 11.08 am the same day to say that she would indeed value a private meeting, but the Claimant was not copied into that reply: (doc 1010).

[103]Upon her return from holiday on 29th October 2018, unaware that the Third Respondent had already replied, the Claimant emailed SG and repeated the incorrect assertion that they had not in fact spoken. She again suggested that SG speak to the Third Respondent and offered to facilitate this with no suggestion, as is now made in her evidence, that the Third Respondent had agreed to do this earlier or that she was at fault for not having already done so: (doc 1045). The Claimant did say to SG at this stage that it was a matter which was “possibly outside the scope of my work” (emphasis added), but the Third Respondent was not copied into this correspondence.

[104]SG apprised the Claimant of her error and told her that arrangements were already in hand for her to set up a meeting with the Third Respondent, but that she had not yet done so: (doc 1044).

[105]The next day 30th October 2018, also the day after notice was given to terminate the contract with IDL, the Claimant spoke to SG, apparently to ask for a copy of the earlier Employee Engagement Survey, even though the Claimant had already received a copy of this on request from A Thompson on 11th October 2018: (doc 945). She went on to ask SG a number of questions, in particular about the Third Respondent, which she, SG, considered to be “fishing” so that she contacted T Houghton to express her concern: (doc 1039/40).

[106]The Third Respondent and SG did meet on 7th November 2018.

[107]On 28th September 2018 A Rankin invited the Claimant to attend a meeting with two members of a young professionals’ group, RS and JN. This was because he was concerned that they had information, particularly about homophobic abuse on site, of which the Claimant ought to have been aware to set the context for any future work in the field of EDI, and where she may have been able to offer further support to the individuals concerned.

[108]The Claimant took three pages of notes recording what she was told by RS and JN: (doc 852-4). Although the sources of these comments are unattributed, and they are not connected to any particular place or time, they are highly offensive and concerning.

[109]The Claimant accepts that both she and A Rankin sought to persuade RS and JN either to make a formal complaint themselves or to encourage others involved to do so, but that they were adamant that they did not wish to do so. Absent such a complaint the Claimant accepted in oral evidence that a formal investigation would not have been possible.

[110]The highest that the Claimant now puts her alleged disclosure to L Bowen, A Rankin’s line manager, is that she informed her of the situation so that she too might seek to persuade RS or JN to take the matter further.

[111]The Claimant has always maintained that this conversation with L Bowen took place on the same date that she had spoken to RS and JN, 28th September 2018. L Bowen was however on annual leave that day.

[112]It is only in her oral evidence that the Claimant has, for the first time, alleged that she spoke to L Bowen on this day by telephone. Although the original claim form and the Claimant’s witness statement do not expressly state that this alleged disclosure was made in person, that is the implication. Had the Claimant, who was on site that day, sought out L Bowen to speak to her but had had to contact her by telephone because she was on holiday, we would have expected that detail to have been remembered.

[113]It is clear that the Claimant cannot have and did not, in the course of making any alleged disclosure, provide L Bowen with a copy of the notes she had taken in her discussion with RS and JN.

[114]It is also accepted that the Claimant did not ever in fact provide a copy of her notes to L Bowen or to anybody else at the Respondents. Nor did she have any further communication with L Bowen, or anyone, about this matter: this included the fact that she did not ever go back to speak to RS or JN.

[115]L Bowen has no recollection whatsoever of any such conversation having taken place, and on balance we therefore prefer her evidence that it did not in fact happen.

[116]Necessarily, therefore, no conversation on this topic as between L Bowen and the Claimant was ever reported to the Third Respondent.

[117]CL was an employee of the First Respondent who had been on long term sick leave since 23rd May 2018 with mental health issues, and who had had previous lengthy absences because of physical ailments.

[118]He would almost certainly meet the definition of somebody with a disability.

[119]The Claimant accepts that she was wholly ignorant of the steps which the First Respondent had or had not taken to support CL throughout his absence.

[120]In actual fact the First Respondent has adduced what appears to be good evidence of extensive attempts to assist CL whilst managing his absence, including active involvement on the part of the Third Respondent. Although it is understood that CL is bringing his own Tribunal claim, presumably for some form of disability discrimination, the details of that complaint are not known and are not material to the case before us, so that we do not, of course, make any determination.

[121]At one of the focus groups facilitated by the Claimant on 28th September 2018 FW, a colleague of CL’s and with whom he had been in contact in the form of distressing text messages, expressed her concerns for his state of mind and for his well-being. There is, of course, no note by the Claimant of what was said by FW in that focus group.

[122]The Claimant has alleged that she urged L Bowen “to take prompt and meaningful action to investigate how the HR team had allowed the situation to develop.” In her oral evidence she now puts the case no higher than that she urged L Bowen to “explore” whether all that could be done to assist CL was being done.

[123]L Bowen was not CL’s line manager and so was not directly responsible for managing his absence, that would have been CB. The Claimant said that she nonetheless approached L Bowen about the issue because she was the person with whom she had an existing relationship, not CB. She acknowledged that she believed L Bowen did care about CL, and that she believed her when she said she was aware of the problem already and that she would look into it.

[124]The Claimant has originally maintained that she spoke to L Bowen on 2nd October 2018. She has now amended that account to say that it was raised in the course of the one-to-one that she conducted with L Bowen on 1st October 2018, as part of the “Facilitated Feedback Sessions”. There is again, of course, no note of that discussion and it is somewhat implausible that the Claimant should have used that time for an entirely different purpose to that for which the meeting was scheduled.

[125]On balance we prefer the recollection of L Bowen, as now expressed in the course of her oral evidence, that there was a very brief encounter in the corridor where the Claimant mentioned the situation with CL.

[126]L Bowen was indeed aware of the situation, had discussed it with CB, and had also independently already had a conversation with FW about her concerns for CL.

[127]Independently of any conversation with L Bowen, the Claimant was at this same time also discussing CL in emails with A Rankin: (doc 904-7).

[128]This exchange was prompted by an email sent by A Rankin to a number of people at 3.40 pm on 2nd October 2018, where he is pessimistic about the prospects of now being in a position to launch the First Respondent’s new Bullying and Harassment Campaign on schedule.

[129]This is followed up by a private exchange with the Claimant when at 6.57 pm he explains why he is having a “glass half empty day”. He informs the Claimant of an employee suicide that day and of “more stories of employees receiving very poor treatment”.

[130]The Claimant replied, again in a private exchange at 7.12pm. She said “Oh Alan, I am sorry to hear that. That is just awful re the employee suicide. I don’t want to add to your woes, but the HR feedback is indicating how worried some are about CL too.”

[131]A Rankin replied further at 7.20 pm: “CL is also a big issue. He largely blames me for his current very poor health and whilst his views are entirely incorrect and out of proportion my personal concern about his condition and prognosis/outcome are keeping me awake a lot. We all should examine how we could have helped more.”

[132]The final email in this chain is from the Claimant at 7.36 pm where she says: “Me again. Re CL I don’t know any of the detail but I do think it is important that the team and you feel that everything that can be done is being done for him and for you. I am now concerned about you too -you need support so that you are not carrying this.”

[133]In the entirety of this exchange with A Rankin the Claimant makes no mention whatsoever of her ever having raised the issue with L Bowen, either the day before or at any other time.

[134]The Claimant confirms in her last email to A Rankin that as at 7.36 on 2nd October 2018 she still did not know any of the detail about CL’s case. We are satisfied therefore that she cannot have, and did not have any discussion with L Bowen that went beyond a similar general expression of employees having recorded their concerns about CL.

[135]The Claimant is also ignorant as to any measures taken by the First Respondent with respect to CL after 1st October 2018. In actual fact the Third Respondent already had a pre-arranged further meeting with CL on that same day, 1st October 2018, which was attended in her stead by the Second Respondent’s executive mental health sponsor. The Claimant therefore provides no basis whatsoever for her stated belief in evidence that “I think L Bowen would have been upset that I asked her to “explore”.

[136]The Third Respondent was never made aware at the time of any conversation on this issue as between the Claimant and L Bowen.

[137]It is now rightly conceded that the email of 15th October 2018 to R Weston was in fact neither a protected qualifying disclosure nor the doing of a protected act.

[138]The email reads “Sorry to bother you. Alan has just made me aware that Heather has mentioned the Safecall issue to him. I am not sure why”: (doc 951).

[139]This email on its face could never have been properly construed as a disclosure that the Third Respondent had “breached the confidentiality requirements of the “Safecall” procedure”.

[140]It was only in cross-examination that the Claimant for the first time said that in her ET1 the person whose confidentiality she was referring to as having been broken was L Bowen.

[141]Following the HR away day on 5th September 2018 the Claimant expressed to A Rankin, J Petrie-Rout and L Bowen and CB her criticism of A Thompson. She also expressed the view that the Third Respondent was not up to the role of HR Director.

[142]On that evening, or the next day, the Claimant repeated to the Third Respondent her opinion that she should “get rid of” A Thompson and said the same about VC.

[143]The Claimant accepts that she had indeed by this stage formed the view that the Third Respondent should not remain in post. That opinion she says was based upon two earlier interactions which she had had with the Third Respondent in about June and August 2018. She now alleges that these demonstrated a lack of commitment to EDI on the part of the Third Respondent, particularly in respect to race or sexual equality in the workplace. We do not need to determine this issue, although we prefer the evidence of the Third Respondent as to what actually happened on these occasions over that of the Claimant. The significant point for our purposes is the Claimant admits that she had already arrived at this adverse conclusion about the Third Respondent.

[144]In the course of conducting her “Facilitated Feedback Sessions” the Claimant spoke to 37 people in the HR department. As there were in fact more than 90 in the team, that is, however, less than half the total.

[145]In the course of those sessions the Claimant in addition to the questions directly about VC also, according to J Petrie-Rout, specifically asked questions inviting potential negative feedback in relation to A Thompson, whom she had already decided should be “got rid of”.

[146]According to L Bowen, and J Petrie-Rout the Claimant also appeared to be inappropriately directing her questioning towards securing adverse criticism of the Third Respondent.

[147]The Claimant, we repeat, has produced no notes of what was said at any of the sessions she conducted.

[148]Prior to its completion, the Claimant did contact both L Bowen and R Weston to suggest that she believed the Third Respondent would respond badly to the adverse criticism that she was intending to present in her report.

[149]On her return to Sellafield on Monday 15th October 2018 the Third Respondent contacted the Claimant to ask for a progress report on the outcome of the Facilitated Discussions and was informed for the first time that it was “not good”. The Third Respondent had on that same day been informed by the CEO of the receipt of the anonymous letter, but was not shown a copy. The Claimant informed the Third Respondent that she did have a copy of the letter. It appears that she also communicated to the Third Respondent that the letter mentioned her father and was a personal attack on her, as a result of which the Third Respondent confided in the Claimant by text on 16th October 2018 that she was “not in a good place at the moment”: (doc 984).

[150]The Third Respondent discussed the receipt of the anonymous letter with the HR lead team on 16th October 2018 and informed them that the Claimant’s Draft report was anticipated shortly.

[151]The Draft Report was written up by the Claimant in the course of Tuesday 16th

[152]Also on 16th October 2018 the Claimant had arranged to speak to P Vallance of the Second Respondent about something but emailed his assistant at 2.09 pm to say that she no longer needed to do so because she had managed to sort things out without further help”: (doc 982).

[153]The Draft Report was emailed to the Third Respondent at 9.28pm: (doc 959). The Claimant in referring to her preliminary recommendations stated, “nothing that is rocket science and all very logical based on the feedback” and she signs off the email “Speak soon and happy reading!”

[154]The Claimant also initiated a series of text messages with the Third Respondent commencing at 9.25 pm that night: (doc 983). The Third Respondent replied that she had a cold, was at home and would not read the report that night and so did not want to discuss it yet: (doc 984).

[155]Because the Third Respondent had not indicated that she needed to speak to her, the Claimant left Cumbria early on Wednesday 17th October 2018 to drive back to Yorkshire. She was going on holiday on Thursday 18th October 2018.

[156]The Claimant texted the Third Respondent again at 12.08 pm on Wednesday 17th October 2018 to ask if she was okay: (doc 985). The Third Respondent replied that she was “in back-to-back meetings but obey (sic) -?“a bit”? - disappointed however if you ask you have to be prepared for the answer”.

[157]The Claimant must however have been in contact with P Vallance on 17th October 2018 because at 3.07 pm he texted her to say that in respect of something which she had raised the Group CEO of the Second Respondent was going to speak to the chairman of the First Respondent: (doc 990).

[158]At 3.53 pm the Claimant texted the Third Respondent again and said about the Draft Report: “I think there are some simple things that could be done to really demonstrate to people you (plural) have heard the issues”: (doc 986). The Third respondent replied to thank the Claimant, wish her a good holiday and to inform her that she was to share the Draft Report with the lead team on the next day, Thursday 18th October 2018, and that “we will look at a plan of 2-3 things to do immediately and the option of a dept wide brief”: (doc 987).

[159]At 5.03pm on 17th October 2018 the Claimant texted the Third Respondent to say that she hoped it went well tomorrow and then again at 6.49 pm on Thursday 18th October 2018 to ask if she had got all she needed from her session: (doc 988).

[160]The format of the Draft Report (doc 961) is firstly a half-page setting out the methodology, then 12 pages of selected but unattributed verbatim comments, from the participants with no indication as to how many of the 37 responders are in fact quoted at all, or which of them is the author of multiple quotations. There is also an executive summary at the start by the Claimant together with a further summary introducing each of the eight areas covered.

[161]There are then 6 pages recording the responses to the six written questions, with pie charts although the sample is so small as to render the conversion to percentages largely superfluous. 16 responders said they respected the lead team to some degree as opposed to 21 who did not, but 22 people respected the Third Respondent as against only 15 who did not.

[162]Finally, there is a half-page of 6 bullet point “Recommendations” which the Claimant accepts are “anodyne”. They contain no concrete proposals and are accurately described by the Third Respondent as “some generic recommendations which could have applied to any team”. This is padded out by two proverbs supposed to illustrate the value of “effective team working”.

[163]Only one of the 108 quotations in the Draft Report has now been identified in closing submissions as something which is relied upon as being a protected act for the purpose of the victimisation claim. That is within the section on “trust”: “CL – actively disliked by the lead team and some of their comments are not appropriate. This massively reduces trust and safety. What if I got ill - would they speak about me like this?”

[164]The Claimant in her preamble to this section on trust does not identify this comment as in anyway relating to CL’s disability.

[165]Nor, notwithstanding that it is critical of the HR lead team and refers to low morale in the department, does the Claimant anywhere in the Draft Report identify any issues raised which she considered to disclose any breach of a legal obligation (whether a common law duty of care toward employees) or an endangerment to health or that there had been a failure to investigate any such specific matter.

[166]The Third Respondent did share the contents of the Draft Report with the lead team on Thursday 18th October 2018, having redacted it to remove references to named individuals apart from those relating to herself.

[167]The Third Respondent, accurately in our view, summarised the reactions as “I would say the team were shocked and horrified by the contents of the report. The team expressed concerns about the negative way in which the report had been written…Notwithstanding the concerns about some of the content of the report, it was clear that some action was warranted in light of the range of concerns which had been expressed. However, in order to avoid a knee-jerk reaction, everyone agreed that we should take some time to reflect.”

[168]Following this meeting four members of the lead team, independently of each other, contacted the Third Respondent further to express their opinion that the Draft Report did not represent a balanced picture of the department because the quotations selected for inclusion were predominantly negative, did not reflect the fairly even split between those who expressed satisfaction with the lead team or the Third Respondent and those who did not, in particular that it did not record positive things which they themselves had said in their interviews, and to express their concerns as to the way the Claimant had conducted the process. These were L Bowen, E McDonnell, A Thompson and T Morris.

[169]Three of these people put their concerns in writing as follows. T Morris’s email dated Thursday 18th October 2018: (doc 1004). A Thompson’s letter dated Friday 19th October 2018: (doc 998). E McDonnell’s email dated 22nd October 2018: (doc 1002). Although they had each spoken to the Third Respondent to some extent before delivering their written concerns, in each case the initial approach was unsolicited by her.

[170]Although the Information Commissioner’s Office has criticised the fact that these letters were produced outside of the First Respondent’s computer or email system hard copies were properly delivered into the control of T Houghton on 30th October 2018.

[171]These letters are not fabrications, as had previously been asserted by the Claimant but which allegation is sensibly not now maintained. They were prepared on the dates shown and represent the genuine views of the authors.

[172]On or about Friday 19th October 2018 L Bowen updated the Third Respondent on the actual cost to date of the IDL contract, that it had exceeded the expected 2 days per week cost, even though contingencies were built in to the projections, and that there was risk of overspend.

[173]The invoices submitted by IDL show that the cost of the Draft HR Report was at least £12,000 (exclusive of VAT) plus expenses. Given the admittedly anodyne nature of its recommendations, and irrespective of the concerns over the impartiality of its conclusions, this clearly in our view did not reflect value for money to the public purse no matter what the “going rate” may have been for consultants.

[174]The Third Respondent asked L Bowen what the implications for EDI would be if the Claimant’s services were no longer retained and she in turn posed the question to A Rankin. We accept the evidence of the Third Respondent that she was reassured and was confident that L Bowen and A Rankin had the necessary expertise to continue the work in this area and that the Claimant was not in fact bringing sufficient added value to justify the high cost of the IDL contract.

[175]The Third Respondent took the decision to terminate the IDL contract on due notice, having discussed the matter in advance only with the CEO.

[176]On Monday 29th October 2018 L Bowen, acting on the Third Respondent’s instructions, telephoned the Claimant to inform her of the cancellation of the contract with IDL. The reason for termination was simply stated to be “funding constraints”. The Claimant said that she needed time to think and that she would be in touch, it was she who ended the call: (doc 1098).

[177]Unbeknownst to the Claimant A Rankin listened in to L Bowen’s side of the conversation.

[178]The Claimant did not in fact make any further contact, save to submit her final invoice on Tuesday 30th October 2018: (doc 1523). That is the context for A Rankin referring to “radio silence” from the Claimant as at 11.55 am on Tuesday 30th October and asking L Bowen if he should therefore drop the Claimant an email: (doc 1037). The response from L Bowen that he should not do so until she had spoken to the Third Respondent was in the context of confirming if further payment was in fact due: (doc 1036).

[179]Although the contractual obligation to pay for work not done is by no means clear the final invoice was not disputed and L Bowen confirmed payment to be made on Monday 5th November 2018: (doc 1054). This email also confirmed that the reason for termination of the IDL contract was financial, and invited the Claimant to make contact if she wished to return to work. The Claimant did not reply, but nor did she seek to claim any further payment allegedly due during the notice period. Disclosures 7 and 8

[180]P Vallance and D Vineall were named recipients of the anonymous letter on 9th

[181]As we have noted the Claimant, after cancelling a call to P Vallance on 16th October 2018 did in fact speak to him on 17th October 2018.

[182]P Vallance has, however, no specific recollection of that conversation. We accept his evidence that had it in fact raised any substantial concerns, of the type now alleged, as itemised in the Claimant’s witness statement, which required investigation that would have acted as a “red flag” warning to him, but that it did not.

[183]The disclosure as identified in the list of issues (“On 17th October 2018, the Claimant informed Mr Vallance (NDA Executive of EDI) of her concerns as to the functioning of the HR department and its ability to address systemic workplace issues “in its own yard” and beyond”) reflects the content of an email from A Rankin to the Claimant on 2nd October 2018 , already referred to in the context of Disclosure 4, where he observes in respect of the proposed Bullying and Harassment initiative, “I agree we need to clean up our own HR backyard mess first”: (doc 905).

[184]Although the Claimant now also seeks to cast doubt on A Rankin’s commitment to EDI because of his comment in the same email “did I also mention one of our autistic employees was called a ”mong” by her team leader too…Welcome to 1976”, her initial reply clearly acknowledged that she understood this as merely an indication of frustration with the slow progress of change, saying “it does get to you sometimes... Me too”: (doc 904). The Claimant acknowledges that she has never before her witness statement made any allegation of inappropriateness on the part of A Rankin as a result of this email. That would include an admission that she did not in fact raise this with P Vallance on 17th October 2018 as is implied in her witness statement.

[185]Whilst D Vineall spoke to the Third Respondent on 18th October 2018 this was not in respect of anything which the Claimant had said to P Vallance the day before. Although the Third Respondent in her timeline references this as a discussion about the “Safecall” that does not mean that D Vineall identified the issue in this way. The note of this conversation in the Third Respondent’s timeline reads: “HBR asked DV if she was to be investigated and he advised “that will be a SL decision as the letter was addressed to Paul”. This is clearly a reference to the anonymous letter and the whole of the exchange is fully explicable in that context without any need to import an additional postulated report from P Vallance which specifically identified the “Safecall” alert as such.

[186]D Vineall and the CEO of the First Respondent met on Monday 22nd October 2018. Again, that is perfectly explicable as discussion following on only from the anonymous letter. The Claimant was not mentioned at all, as is clearly shown by the fact that her name does not appear anywhere in the memo of that meeting prepared by D Vineall the next day, shortly before his going on holiday: (doc 1008).

[187]At that meeting D Vineall proposed the secondment of M Barber from the Second Respondent to take over as head of HR pending finding a suitable replacement for the Third Respondent.

[188]We accept the evidence of D Vineall as Group Chief People Officer for the Second Respondent that, although carrying great influence, the Second Respondent could not directly intervene in the affairs of the First Respondent.

[189]The Services Agreement between the Second and the First Respondent expressly provides under clause 3.1 “Partnership and Agency” that “Nothing in this Services Agreement is intended, or shall be deemed, to establish any partnership or joint venture between NDA and SL (Sellafield). Nothing in this Services Agreement is intended, or shall be deemed to, authorise SL to make or enter into any commitments for or on behalf of NDA”: (doc 151).

[190]On Monday 29th October 2018 the Claimant firstly spoke to M Barber of the Second Respondent, where it is admitted that she merely informed him of the fact that IDL’s contract had been terminated.

[191]Subsequently on that same day the Claimant spoke to P Vallance and also informed him of the termination but, on this occasion, she alleges that she also advised him that he may wish to obtain a copy of her Draft Report and that she had a strong suspicion that she had been served notice of her contract in a bid to suppress wrongdoing. By “wrongdoing” the Claimant means those matters which she had allegedly itemised in her earlier conversation with P Vallance on 17th

[192]By Wednesday 31st October 2018 The Third Respondent in her timeline records being told by T Houghton that someone at the Second Respondent was extremely nervous about terminating the IDL contract immediately after the report into inclusion and respect was received. It is clear therefore that the Claimant had informed somebody, presumably therefore P Vallance, that she had indeed submitted a report.

[193]P Vallance however has no recollection of the substance of that conversation beyond being told of the fact of termination. Once more, however, we accept his evidence that had it in fact raised any substantial concerns that there had been any suppression of wrongdoing required investigation that would have acted as a “red flag” warning to him, but that it did not.

[194]On Thursday 1st November 2018 M Barber texted the Claimant to say he was following things up: (doc1662).

[195]On Friday 2nd November 2018 M Barber did then speak to the Third Respondent and was informed that there was no hard evidence to justify investigating the “Safecall” report and that the IDL contract had been terminated for financial reasons.

[196]Shortly after Monday 5th November 2018 upon his return from holiday, D Vineall was informed by the CEO of the First Respondent that the reason for the termination of IDL’s contract was financial.

[197]Also, at or about this time, D Vineall and the CEO of the First Respondent agreed as a collaborative measure that the First Respondent would cooperate with a diagnostic review of the HR function, to be paid for by the Second Respondent: (doc 1080). This led to the commissioning of a report from Price Waterhouse Cooper. As already noted in the context of Disclosure 1 the Second Respondent’s Compliance Office also intended to commission a third-party investigation into the “Safecall” report following the identification of the potential witness who was on secondment.

[198]The Claimant instructed solicitors almost immediately. On Tuesday 6th November 2018, following a conversation the day before, M Barber offered the Claimant a meeting with the CEO of the Second Respondent; (doc1059). After talking again to her solicitor, the Claimant declined this opportunity pending further legal advice: (doc 1058).

[199]On Thursday 8th November 2018 the Claimant emailed M Barber with a copy of the First Respondent’s whistleblowing policy and asserted that it had failed on most of the key points, but without any detail and without at that stage identifying herself as a whistle blower: (doc 1657).

[200]Following a meeting with her solicitor and counsel the Claimant again contacted M Barber on Thursday 15th November: (doc 1081). At this point she identified that she was considered to be a worker under the whistleblowing provisions and that she felt she had been victimised and was seeking funding to bring a claim from the Equal Opportunities Commission.

[201]On Friday 16th November 2018 the Claimant’s solicitors wrote to the CEO of the Second Respondent requesting a meeting with the board of the Second Respondent and the chair of the First Respondent with her solicitor and counsel in attendance: (doc 1586).

[202]On Thursday 22nd November 2018, having discussed the matter with the CEO, M Barber texted the Claimant asking to speak. She initially refused, but they did then in fact have a conversation on Friday 23rd November 2018 when she declined to have any meeting without her legal team also being in attendance: (docs 1664 and 1100).

[203]The Claimant was offered re-engagement with the Second Respondent directly to work elsewhere across its estate but declined.

[204]On Friday 23rd November 2018 the solicitors for the Second Respondent reiterated that a meeting could be held, but not with the full board and not with lawyers present: (doc 1558).

[205]At no stage did the Claimant ever suggest that the Second Respondent could or should intervene to stop the IDL contract being terminated.

[206]The Claimant’s case now in her oral evidence is that the Second Respondent should somehow have affected the suspension of the notice taking effect until it had carried its own separate investigation into the reason for termination of the contract.

Conclusions

[207]Establishing from the Claimant the facts of what was actually said in respect of any alleged oral disclosure has proved elusive. The Claimant has not provided any clear verbatim account of what was said close to the time. It is now, of course, nearly 3 years after the events in question and lapses in memory might be excused. Unfortunately, however, the more detailed accounts now given by the Claimant, particularly in her witness statement, bear all the hallmarks of being what she would like to think that she said in support of her claim as it has now been constructed, rather than what actually happened at the time.

[208]We have come to our conclusions as to what was in fact said by taking into account not only the conflicting evidence of witnesses making allowance as appropriate for any potential inaccuracies in recollection, but also the documented surrounding context so as to determine what is the most plausible finding in all the circumstances.

[209]The “Safecall” report might have been dealt with differently. In hindsight it might indeed have ben preferable if it had been. It was, however, investigated.

[210]The Claimant did not, of course, have any actual knowledge as to the substance of that report and could not therefore make any specific representations at the time as to how it ought to have been addressed.

[211]Everybody who was made aware of the “Safecall” report, whether or not they were also aware of its specifics, understood that the Facilitated Feedback Sessions led by the Claimant were in fact intended to form the first stage of any investigation into the allegations against VC. That understanding extended to the Claimant.

[212]Had it not been for the “Safecall” report the Claimant’s experience in facilitating focus groups would not have been called upon. The initial purpose of such groups was clearly understood by her to be to “flush out if there were any issues regarding VC.”

[213]In the absence of any direct knowledge of the specific nature of the allegations, the Claimant’s observation that “if there’s an allegation like that, you really need to undertake a formal investigation” is no more than an expression of opinion.

[214]It did not, therefore, disclose any information, which could properly be said to amount to a protected qualifying disclosure. Nor is it even an allegation such that in an appropriate context it might nonetheless qualify for protection.

[215]Nor was the Claimant in any position to make any actual allegation of discrimination, whether express or implied, before the potential matters raised in in the anonymous “Safecall” report, the details of which she of course did not know, had been investigated. Nor, even though it need not refer to any specific statutory provision, does this expression of opinion amount to the doing of anything for the purposes of or in connection with the Equality Act, because the Claimant was not actually aware of any facts which she was reporting as deserving of investigation.

[216]All the Claimant was saying was that if, conjecturally, there were in fact serious allegations they ought to be formally investigated. There is nothing to suggest that had substantiated allegations come to light they would not then indeed have been subject to a formal process.

[217]The Claimant was not pressurised into setting up the Facilitated Feedback Sessions. She had almost complete autonomy as to their format and content.

[218]In the event, although the Claimant was clearly aware of the importance attached to these sessions as a means of eliciting any information which corroborated the potential allegations of “sexual harassment” against VC she chose instead to focus upon negative criticism of the style of the lead team and in particular of the Third Respondent.

[219]When the Draft Report was presented the Claimant then chose not to include, within or without the main body of the report, any information which would assist – one way or another - in evaluating whether the anonymous “Safecall” allegations had any substance. She did, however, expressly acknowledge that the issues regarding VC were still outstanding. The one potential line of further inquiry which she did report in connection with this matter, though without any detail, was then promptly followed up by the Third Respondent.

[220]This does not mean that she was in any way from the outset pressurised into conducting the session in a manner which she had taken objection to. Rather it strongly suggests that she did indeed take the opportunity presented by the commission to “flush out if there were any issues regarding VC”, which she accepted, to then follow a parallel agenda dictated by her own preconceptions as to the inadequacy of the HR lead team generally.

[221]We find, on balance, and in accordance with the Claimant’s own case that the expression of opinion came after she was invited to use her expertise to “flush out if there were any issues regarding VC.” The subjecting of her to this alleged detriment cannot therefore have been because she had made any disclosure.

[222]In any event, whenever this opinion was expressed in the course of the conversation the decision to investigate the “Safecall” report in the way that it was in fact investigated clearly had nothing whatsoever to do with the Claimant saying, “if there’s an allegation like that, you really need to undertake a formal investigation”.

[223]There was no failure to investigate or take action in respect of this alleged disclosure. The expression of opinion, expressed in the way that it was, was not of itself susceptible to any investigation.

[224]There is no good evidence that the Claimant was in fact in any way stressed by the decision to hold the Facilitated Feedback Sessions rather than, hypothetically, to have conducted the investigation in some other way. She was fully prepared to conduct these sessions and she informed the Third Respondent of the information that then came to light in respect of VC, such as it was. The Claimant did not in fact know what did or did not then happen in respect of any further investigation into VC’s conduct once she had completed her Draft Report and passed F Shand’s details on to the Third Respondent. In reality, it appears that the sessions which she had conducted had disclosed no significant allegations against VC such as might have given rise to concerns or anxieties on the part of the Claimant herself as a result of her becoming aware of that information.

[225]Nobody apart from the Third Respondent knew about what the Claimant had said in the course of this conversation, and there is no reason at all to suppose that the expression of opinion on 12th September 2018 had anything at all to do with her subsequent decision to terminate the contract with IDL.

[226]The Claimant’s case in respect to Disclosure 2 is a well-nigh total distortion of what actually happened.

[227]The email from SG was dealt with promptly and appropriately in all the circumstances, except that the Claimant failed to record her discussion with SG or to relay that information back to the Third Respondent so that further action might be taken as appropriate, and indeed positively misled her as to what actions she had taken.

[228]The Claimant did not ever state in “unequivocal terms” that she did not have the authority to conduct a formal investigation, as this would be wholly inconsistent with the manner in which she actually expressed any reservations when contacting SG on 29th October 2018.

[229]What the Claimant in fact said about the inappropriateness of her investigating any grievance against L Bowen (or any other member of the lead team) is not the disclosure of any information. There was no formal grievance raised. All the Claimant was being asked to do was to speak to SG in the first instance to clarify the issues raised, which she was clearly perfectly willing to do, and not at any stage to carry out any form of investigatory hearing with L Bowen.

[230]Failure to investigate this alleged protected qualifying disclosure is no longer separately pursued as an allegation of detriment. It was removed from the Claimant’s revised list of issues when this was provided at the start of the hearing.

[231]The Third Respondent certainly did not approach the SG email in the manner in which she did so as to subject the Claimant to a detriment because of anything that she had said to her in a telephone conversation on 24th September 2018. In all probability her initial response to SG was before she had spoken to the Claimant at all. Whenever it took place, in any event that discussion clearly led to a consensual decision that the Claimant would speak to SG. Had this in fact been a formal grievance the first stage in that process would, of course, to have been to arrange a meeting with the complainant. The substantive matter concerning SG was investigated, and so far as the alleged disclosure itself was concerned there was nothing to investigate.

[232]In these circumstances, and given the concession, it is clear that this alleged disclosure cannot, in any event have had any material bearing upon the decision to dismiss. By this time the Third Respondent had already herself agreed to meet with SG, so that anything which the Claimant may have said about the inappropriateness of her continuing to investigate this matter beyond her initial conversation with SG was completely immaterial.

[233]We find that the Claimant has not proved that the alleged disclosure to L Bowen on 28th September 2018 happened at all.

[234]In any event even on the Claimant’s own case a mere exhortation to L Bowen to seek to persuade RS or JN formally to take the matter further is not the protected, qualifying disclosure of any information, nor is it a protected act for the purposes of victimisation.

[235]Whilst the Claimant had her notes of the discussion with RS and JN, which certainly did identify allegations of homophobic abuse, she elected not to share that information with anybody until it was first quoted some 2 ½ months later in the particulars drafted in support of her claim for compensation.

[236]Had the Claimant, as she initially alleged, indeed stated to L Bowen that “immediate action be taken, not least so as to avoid compounding the impression that systemic issues were ignored or mishandled”, it is wholly implausible that she would not have also made available to her the material, namely her notes, which would have formed the starting point of any such investigation.

[237]Even if such a brief conversation had taken place exhorting L Bowen to pursue the matter, where the Claimant herself and A Rankin had already failed to secure the necessary cooperation of RS and JN, and where she had no details provided to her, the Claimant was not subjected to any detriment because she has given such a general exhortation. There was nothing specific to investigate, where an alleged failure to do so could then amount any detriment to the Claimant. After 28th September 2018 the Claimant herself did nothing whatsoever to raise these issues until bringing the Tribunal claim.

[238]The passing comment to L Bowen about CL, asking her to “explore” if everything appropriate was being done did not disclose information about what had actually been done as the Claimant admittedly did not know the situation.

[239]Nor, even though CL was disabled, does it amount to the doing of a protected act. It does not allege any discrimination as the Claimant did not know of any, and it is at most an exhortation to ensure that the sickness management procedures are being fully and properly followed.

[240]This was evidently not a significant conversation that registered in the mind of L Bowen at the time.

[241]That this comment was also not in fact particularly significant in the mind of the Claimant is clear from the fact that in the context of her exchanges with A Rankin at this time it is not mentioned at all.

[242]In any event, in her own case, the Claimant suffered no detriment. She was reassured by L Bowen and had no reason to doubt that she would indeed look into it as she had said she would.

[243]The Draft Report does in fact not contain protected qualifying disclosures. The Claimant is an experienced, human resources professional. If she had genuinely and reasonably believed that the quotations from interviewees actually disclosed any breach of a legal obligation or an endangerment to health or an attempt to conceal this information she would have said so.

[244]If she had genuinely and reasonably believed this to have been the case, she would have made specific recommendations as to how these matters ought to be addressed and would not have presented the position to Third Respondent simply as one where the low morale in the team could easily be addressed.

[245]The single allusion to CL in one of the many quotations is not properly construed as the doing of protected act just because CL is disabled. The allegedly inappropriate comments about CL are not particularised, and, in any event, they are not stated to be related to his disability but to the fact that he is apparently disliked. It is primarily a concern on the part of the interviewee that if they too were absent through illness comments might be made about them. It is a complaint about someone being spoken about behind his back, not anything obviously related to discrimination.

[246]In any event the inclusion of that single reference to CL in the body of the report, absent any comment at all upon it by to Claimant, was not the reason why the Third Respondent acted as she did: it will have had no bearing whatsoever upon her thought processes.

[247]The reason why the Third Respondent in fact decided to terminate the contract with IDL is identifiable from the reason why her position changed between the initial receipt of the Draft Report and its being shared with the lead team and the subsequent giving of notice.

[248]The principal difference is the fact that Third Respondent was informed by four members of the lead team that they independently had serious doubts about the lack of balance in the report such that they no longer fully trusted the Claimant.

[249]Those concerns were genuinely and reasonably held, and the representations made to the Third Respondent were therefore simply a record of observed doubts about the manner in which the feedback session had been conducted, not as a result of the Claimant having made any alleged disclosure. They certainly did not induce the termination of the IDL contract because the report contained a reference to CL.

[250]Also, L Bowen had by then updated the Third Respondent for the first time as to the actual costs involved in the IDL contract.

[251]We are satisfied therefore that the reason why the IDL contract was terminated was that the Third Respondent had received reliable information which cast doubt on the balance and impartiality shown by the Claimant in the preparation of the Draft Report, that the report itself lacked any meaningful analysis and that its recommendations were vague and entirely generic.

[252]This questionable and insubstantial piece of work by the Claimant had, however, incurred a cost to date of in excess of £12,000.

[253]The First Respondent was continuously operating under financial constraints. Where such a cost evidently does not represent good value for money it ought properly to be challenged by a publicly funded body.

[254]Had the Claimant in fact done a protected act which could realistically be connected to the termination of the IDL contract, then the failure to inform her, or indeed anybody else who asked at that time, of the full underlying reason for “financial constraints” being invoked as a ground for terminating the contract would be sufficient to reverse the burden of proof on the victimisation complaint. That is not however he case here, and it cannot so operate.

[255]We are further satisfied that the reference only to “financial constraints” was in order that the Claimant could indeed, had she wished, have left “with her head held high” and with no openly voiced criticism of her work.

[256]The IDL contract was not terminated because of the subject matter in any alleged disclosure by the Claimant.

[257]Nor was the decision to communicate that decision in a short, business-like telephone call taken because of any alleged disclosure. It was simply in the nature of the giving of notice to terminate a commercial contract, but where obviously the Claimant would be disappointed at losing that work and revenue source. It was the Claimant who in fact closed the call.

[258]The Claimant did not know at the time that A Rankin was present with L Bowen. This is not a detriment to her, it did not place her at any disadvantage in “employment”, that during the currency of the IDL contract. In any event the reason why A Rankin was asked to observe was so that there would, if necessary, be a witness to what L Bowen said, and not because of an alleged disclosure made by the Claimant.

[259]The Claimant could have worked throughout IDL’s notice period. She chose not to. Rather she immediately took steps to prepare for litigation and communicated directly only with the Second Respondent. As a result, there was no further direct contact with any employees of the First Respondent. Again, this is not properly construed as a disadvantage to her in the course of “employment” and is not because of an alleged disclosure made by the Claimant. The Claimant had of course only worked for the Respondent, through IDL, for a very short time. Her previous involvement at Sellafield had been when she was supplied by Capita to the Second Respondent and any work that she done had already been completed, and no doubt acknowledged, when the Capita contract had come to an end. Disclosures 7 and 8 and the case against the Second Respondent

[260]The alleged disclosure to P Vallance on 17th October 2018 was on a non-working day for the Claimant, when she was travelling home before her holiday, and appears to have been sometime in the early afternoon. At this point in that day, between the Third Respondent acknowledging that she was “disappointed but if you ask you have to be prepared for the answer” to her questions and the Claimant ostensibly expressing her full support for her in anticipation of the sharing of the Draft Report with the lead team on the following day, there is no obvious reason for the Claimant to have contacted P Vallance at all, and certainly not as she alleges in her witness statement to have itemised nearly all of her alleged disclosures to date (though not in relation to RS and JN) .

[261]It is wholly implausible that the Claimant in fact informed P Vallance of the “Safecall” alert and the lack of formal action and the fact that she had been “asked to conduct an unfair and covert investigation”, given the terms in which she had referenced this matter in the covering email when submitting her Draft Report the night before.

[262]It is wholly implausible that the Claimant in fact informed P Vallance of the failure to address the wellbeing of CL or the stress that this was causing FW, when this matter raised only in a passing conversation had led to satisfactory assurances from L Bowen, where the Claimant had not taken the matter any further, and where she did not actually know what was happening in respect to CL’s sickness absence.

[263]It is wholly implausible that the Claimant in fact informed P Vallance of the further allegations against VC or the bullying allegations raised against L Bowen in the course of her research and the fact that these had not been acted upon, given the way in which her interactions with SG and F Shand had in fact been reported back to the Third Respondent just the night before.

[264]It is however plausible that some mention was made of the anonymous letter, of which both the Claimant and P Vallance were aware. It is though unlikely that this included a genuine allegation that the CEO of the First Respondent or any other member of the executive team was not taking this seriously, since the Claimant well knew that any such inquiry was at a very early stage, the Third Respondent had only just arrived back from holiday and had not yet been given sight of the letter but was understandably upset when she had been told, presumably by the Claimant, that it referenced her father’s death and was a personal attack on her. Also, in so far as the anonymous letter reproduced comments included in the Claimant’s own Draft Report, these were matters which she had already therefore herself identified as capable of fairly simple resolution.

[265]Whatever it was that the CEO of the Second Respondent was intending to discuss with the Chair of the First Respondent, it was on a purely informal level. This does not suggest that it was anything which required detailed investigation and corroborates P Vallance’s evidence that had anything of that nature been raised with him he would have remembered it.

[266]At its highest we conclude that all that the Claimant may have raised with P Vallance in this telephone call was along the lines set out in the lists of issues, that is sharing A Rankin’s observation that “I agree we need to clear up our own back yard first”.

[267]There was nothing in what the Claimant actually said that required any further investigation.

[268]There is absolutely no evidence that the Second Respondent induced the termination of the IDL contract, or any other alleged detriment. The Claimant relies only on the fact of the meeting on 22nd October 2018 but this does not in any way indicate that D Vineall on that occasion induced the termination of the contract, which was not even in contemplation at that stage, and was certainly not envisaged by himself.

[269]So, even if there had been any basic contravention, the Second Respondent could not be liable under section 111 Equality Act 2010.

[270]Nor did the Second Respondent knowingly aid or help the termination of the IDL contract to take effect upon expiry of the notice period by reason of anything that it did or failed to do after learning that that notice had been served.

[271]The single allusion to the Claimant feeling that she had been victimised as at 16th November 2018 is not sufficient for the Second Respondent to have known that an act of victimisation was in contemplation, particularly when it could reasonably rely on the assurance that the decision was in fact taken on financial grounds.

[272]Even if the Second Respondent would have had authority to suspend the taking effect of the period of notice had it wished to do so absent any actual request from the Claimant at the time, it had no sufficient information to found any investigation. The Claimant did not provide any particulars to substantiate her vague assertion that she felt she had been victimised. She did not ever identify the protected act relied upon, and certainly did not allege that it was only a single reference to CL in her Draft Report.

[273]The Second Respondent did in fact seek to “take sides” with the Claimant and was prepared to challenge the First or Third Respondent as to why they had taken action. There was no “failure to investigate” which positively aided the notice coming into effect. There is nothing worthy of reproach in the actions of the Second Respondent after 29th October 2018.

[274]So, even if there had been any basic contravention, the Second Respondent could not be liable under section 112 Equality Act 2010.

[275]Nor would the Second Respondent be liable under section 109 Equality Act 2010.

[276]Ministry of Defence v Kemeh [2014] ECA Civ 91 confirms that the common law principles as to agency apply in construing the relevant statutory provisions in respect to discrimination by an agent and for which the principal is therefore liable.

[277]Even if the legal concept of agency does not necessarily involve an obligation to affect the legal relationship with third parties– and which is here expressly precluded by the terms of the Services Agreement – it is still necessary to show that “that a person (the agent) is acting on behalf of another (the principal) and with that person’s authority” (see paragraph 39 of the judgement of Elias LJ).

[278]The source of the First Respondent’s authority to act with respect to the Claimant is clearly the fact that as a separate legal entity it had entered into a commercial contract with IDL. That is the source of its authority to make decisions regarding utilisation of the Claimant’s services as commissioned by its HR department. Similarly to the position in Kemeh (see paragraph 41) the limited degree of control that the Second Respondent might in practice have been able to exert over the First Respondent by advising, challenging or supporting comes “nowhere near constituting an authorisation…to allow the [First (or Third)] Respondent) to act on its behalf with respect to third parties.”

[279]The Claimant has not, on the facts, established any alleged disclosure which is properly capable of amounting to a protected qualifying disclosure or the doing of a protected act, or that there is any causal link between what she actually said or wrote and the only proven detriment to which she has in reality been subjected, which is the lawful determination of the contract with IDL through whom she chose to provide her services.

Conclusions

[1]The applications for costs made by the First and Third Respondents succeed and the Claimant is ordered to pay £20,000 towards their costs.

[2]The application for costs made by the Second Respondent succeeds and the Claimant is ordered to pay £20,000 towards its costs.

The Hearing

[1]The First and Third Respondents had made an application for costs dated 9th September 2020.

[2]This followed an unsuccessful application by the Claimant to strike out the Response, which was heard by Employment Judge Batten at Manchester by CVP on 7th July 2020. The Claimant’s application for a reconsideration of that decision was refused at a further hearing on 15th January 2021.

[3]As directed at preliminary hearings by way of case management, heard remotely at Manchester before Regional Employment Judge Franey on 23rd October 2020 and 21st January 2021, that application was held in abeyance, initially to await the reconsideration decision and implicitly thereafter until after the end of the final hearing

[4]The case was heard by us over 14 days, ending on 2nd July 2021. Written reasons for the decision were provided on 30th July 2021.

[5]The First and Third Respondents made a further application for costs dated 27th August 2021, and renewed their application from 9th September 2020, which remained outstanding.

[6]The Second Respondent also made a separate application for costs dated 27th August 2021.

[7]The Claimant’s application to stay proceedings pending an appeal was refused. Following directions given on 27th September 2021 the parties then confirmed that the costs applications could be dealt with on paper without an attended hearing.

[8]In compliance with the directions timetable, the Claimant accordingly provided written submissions on 25th October 2021, the Respondents replied on 9th November 2021, and the Claimant then submitted her further response on 10th November, some two weeks before the deadline. All these representations have been considered. The substantive issues

[9]The substantive issues in this case were as set out in the liability judgment: - “18. The claims are of being subjected to a detriment because of having made a protected qualifying disclosure under section 47B of the Employment Rights Act 1996, and/or having been victimised under section 27 of the Equality Act 2010. The protected act relied upon for the purposes of victimisation is, where applicable, the same as the protected qualifying disclosure.

[21]The Second Respondent is not in any event liable in respect of any alleged protected disclosure detriment.

(2) of the Equality Act)? Was the Claimant subjected to a detriment? If so, was the making of a protected qualifying disclosure a material factor in her being subjected to that detriment, or has she proved facts from which we could decide in the absence of any other explanation that she has been treated unfavourably because of doing a protected act, in which case has the Respondent proved that the treatment in question was on no grounds whatsoever because of that protected act?” 10. Despite the prolonged and somewhat convoluted history before the tribunal, and the voluminous amount of paperwork generated in the course of proceedings, this case is in essence, therefore, relatively simple. At its core is the question of what the Claimant actually did or said on just six alleged occasions, does that act qualify for protection under the relevant statute, and was the Claimant subjected to a detriment because of it? The principal alleged detriment, and which is admitted to constitute disadvantageous treatment, is the termination on due notice of the First Respondent’s contract with the Claimant’s company, IDL. The Application by the Second Respondent. 11. The claim was presented on 19th March 2019. 12. The Second Respondent applied on 22nd July 2019 that the claims against it be dismissed and that it be removed from the proceedings. 13. That application was considered at a private preliminary hearing by way of case management, conducted by Employment Judge Porter on 31st July 2019. 14. Although the Order records that the application to remove the Second Respondent from proceedings was refused, that is, in the context of the direction given for listing by Employment Judge Warren on 25th July 2019, simply a refusal to list further for a public hearing to determine the application on its merits. The summary reasons given by Employment Judge Porter were that the tribunal could not determine the merits of the claim without hearing evidence. That ruling cannot properly be taken as any expression of opinion as to the actual merits of the claim. 15. At a subsequent preliminary hearing before Regional Employment Judge Franey on 23rd October 2020, he invited the Claimant to consider simplification of the case by withdrawing her claim against the Second Respondent, and potentially also against the Third Respondent, and concentrating on the primary complaints against the First Respondent. The fact that the judge may, as alleged by the Claimant, have made an observation that the First Respondent might therefore, “if at all possible”, also consider admitting one or more protected disclosures and continue proceeding on the issue of causation only, was in the context of further anticipated “without prejudice” discussions. Any opinion expressed by the judge to the effect that it was unlikely that the Claimant had not made some protected disclosure, was clearly based on an assumption – without, of course, any consideration of the evidence – that the Claimant would have raised relevant matters of serious concern, because that was the context of her engagement as an EDI consultant. The First Respondent did not at that time consider that it was appropriate to make this concession as mooted by the judge, and in the event, it was, on the facts, right not to have done so. The necessity for, and the reasonableness of, pursuing the claims against the Second Respondent, as canvassed for discussion by the judge, was however a distinct issue from whether or not the First Respondent made any admissions. 16. On 26th April 2021 the Second Respondent made a further application for strike out. 17. On 15th May 2021, Employment Judge Lancaster directed that it was not practicable to list a public preliminary hearing to determine this application in advance of the listed final hearing. Similarly to the decision of Employment Judge Porter, it was also noted, as a provisional view, that the question of whether or not the Second Respondent actually did something to induce or aid or abet a contravention by the First Respondent was a matter of fact, which would require the hearing of evidence. In the event no renewed application for strike out was then made at the start of the final hearing. 18. However, the issues as against the Second Respondent were further clarified, so that at a preliminary hearing on 1st June 2021 it was confirmed, in particular, that any complaints of public disclosure detriment were dismissed upon withdrawal. 19. On the legal issue of whether the First Respondent was the agent of the Second Respondent, Employment Judge Batten had observed at the hearing on 10th August 2002 that the Claimant’s contentions remained unclear, and Employment Judge Lancaster repeated that view on 1st June 2021. 20. On 11th June 2021 the Second Respondent made a without prejudice offer to pay the Claimant £160,000 in full and final settlement of the claims against all Respondents. That letter also operated separately as a costs warning if the Claimant did not withdraw against the Second Respondent in any event. The offer remained open until the first morning of the final hearing on 14th June 2021 but was declined. 21. The findings of fact which the tribunal made at the final hearing are clear in the judgment and though referred to in some detail below, are not repeated in full. 22. Unfortunately, it had become increasingly apparent throughout the hearing that despite the time and effort expended, the Claimant had never properly addressed her mind to whether and how she might prove the essential elements in the case.

[23]To succeed in her claim against the Second Respondent the Claimant would firstly have had to establish that she had done a protected act. Of the six potentially relevant allegations, two were abandoned very late in the course of proceedings, in the revised list of issues submitted in reply to the strike-out application of 26th April 2021 or at the hearing itself. Those specific allegations were properly withdrawn, because they clearly had never had any reasonable prospect of success.

[24]Of the four remaining, one we found as a fact did not happen. This was not merely a case of the Claimant getting her dates wrong, and thereafter having to change her story to seek to explain away the fact that it could not have happened when, or in the circumstances, she had said it did. What in fact happened was that the Claimant quoted extensively in her ET1 from her notes of reported homophobic comments, when she knew full well that she had never previously disclosed these notes to anybody: this gave the wholly misleading impression that the First Respondent, in particular L Bowen, had been “sitting on” this information, when it was in fact the Claimant who had elected not to disseminate it so that further action might be taken if possible. Accordingly, we concluded that: “235.Whilst the Claimant had her notes of the discussion with RS and JN, which certainly did identify allegations of homophobic abuse, she elected not to share that information with anybody until it was first quoted some 2 ½ months later in the particulars drafted in support of her claim for compensation. 236. Had the Claimant, as she initially alleged, indeed stated to L Bowen that “immediate action be taken, not least so as to avoid compounding the impression that systemic issues were ignored or mishandled”, it is wholly implausible that she would not have also made available to her the material, namely her notes, which would have formed the starting point of any such investigation.”

[25]Two of the remaining allegations were substantially limited in potential scope by the actual evidence which the Claimant gave as to their content, so that we concluded that in this form they did not in fact constitute the doing of a protected act at all. This view was particularly reinforced by the context, and what the Claimant did or did not do after making those single alleged disclosures, which she relies upon as the doing of a protected act. So, in relation to the “Safecall” issue the Claimant, after expressing her provisional opinion as to the process, but without knowledge of the facts, nonetheless went on to conduct her own investigations as requested whilst making no protestation whatsoever that this was not now in fact an appropriate course to take: “218. All the Claimant was saying was that if, conjecturally, there were in fact serious allegations they ought to be formally investigated. There is nothing to suggest that had substantiated allegations come to light they would not then indeed have been subject to a formal process.219. The Claimant was not pressurised into setting up the Facilitated Feedback Sessions. She had almost complete autonomy as to their format and content.

220. In the event, although the Claimant was clearly aware of the importance attached to these sessions as a means of eliciting any information which corroborated the potential allegations of “sexual harassment” against VC she chose instead to focus upon negative criticism of the style of the lead team and in particular of the Third Respondent.

221. When the Draft Report was presented the Claimant then chose not to include, within or without the main body of the report, any information which would assist – one way or another - in evaluating whether the anonymous “Safecall” allegations had any substance. She did, however, expressly acknowledge that the issues regarding VC were still outstanding. The one potential line of further inquiry which she did report in connection with this matter, though without any detail, was then promptly followed up by the Third Respondent.”

[26]In relation to the briefly expressed concerns about the health of CL this was not something which the Claimant followed up in any way. So, we concluded: “238. The passing comment to L Bowen about CL, asking her to “explore” if everything appropriate was being done did not disclose information about what had actually been done as the Claimant admittedly did not know the situation.239. Nor, even though CL was disabled, does it amount to the doing of a protected act. It does not allege any discrimination as the Claimant did not know of any, and it is at most an exhortation to ensure that the sickness management procedures are being fully and properly followed.

240. This was evidently not a significant conversation that registered in the mind of L Bowen at the time.

241. That this comment was also not in fact particularly significant in the mind of the Claimant is clear from the fact that in the context of her exchanges with A Rankin at this time it is not mentioned at all.

242. In any event, in her own case, the Claimant suffered no detriment. She was reassured by L Bowen and had no reason to doubt that she would indeed look into it as she had said she would.”

[27]In relation to any alleged potential protected act comprised within the submission of the Draft Report, it was not until closing submissions that this was actually identified. When it was eventually so clarified it did not however bear scrutiny: “245. The single allusion to CL in one of the many quotations is not properly construed as the doing of protected act just because CL is disabled. The allegedly inappropriate comments about CL are not particularised, and, in any event, they are not stated to be related to his disability but to the fact that he is apparently disliked. It is primarily a concern on the part of the interviewee that if they too were absent through illness comments might be made about them. It is a complaint about someone being spoken about behind his back, not anything obviously related to discrimination.”

[28]The Claimant would then have had to establish facts from which we could have concluded that there was a causal connection between her expressing a provisional view about the “Safecall” investigation, her asking L Bowen to “explore” what was being done for CL or her inclusion in the Draft Report of a comment about CL being spoken about behind his back, and any detriment to which she was subjected. She adduced no such evidence whatsoever.

[29]On the evidence therefore the Claimant failed to establish any basic contravention on the part of the First Respondent for which lability might have then attached to the Second Respondent.

[30]Nor on the facts did the Claimant establish any possible basis for concluding that the Second Respondent did anything which might have amounted to an inducement to dismiss as an act of victimisation, nor anything which aided or helped the dismissal as victimisation, nor the inducing or assisting in subjecting her to any other detriment. That is without our having to consider whether, under section 111 (7) of the Equality Act 2010, the Second Respondent was in fact in a “position to commit a basic contravention in relation to” the First Respondent.

[31]Nor has the Claimant ever set out any proper basis in fact or law for attributing liability to the Second Respondent under section 109 of the Equality Act 2010.

[32]The Claimant had been given the benefit of the doubt in permitting these matters to go to trial on her assertion that there were substantive issues of fact to be decided. However, on the facts that were actually put before the tribunal she comprehensively failed to make out any of the elements of her claim against the Second Respondent.

[33]On this ground we unanimously conclude that this claim had, in fact, no reasonable prospect of success.

[34]Whilst there is a strong suspicion that in bringing this claim also against the Second Respondent the Claimant is pursuing some ulterior motive related to her desire to position herself as the champion of equality within the nuclear industry and to court publicity accordingly, we do not need to go further so as to conclude that it is actually vexatious.

[35]However, the Claimant has been on notice throughout the entirety of this long case of the strong defence advanced by the Second Respondent, culminating in the costs warning of 11th June 2021, and has chosen to pursue it, without as we have said ever properly addressing her mind to the essential issues. That we further find to have been unreasonable conduct of proceedings.

[36]The preconditions under both rules 76 (1) (a) and (b) are therefore made out. We must, therefore, consider the making of a costs order. In all the circumstances of this case, especially given the extent to which the Respondent, a publicly funded body, has been exposed to the expense of defending an unmeritorious claim we do exercise our discretion to make an award.

[37]The exercise of that discretion is a matter for the tribunal and does not require direct apportionment of costs incurred to the unreasonable conduct: McPherson v BMP Parabas

[2004] ICR 1398

. In any event the application is limited to £20,000 under the summary assessment in rule 78 (1) (a), although the total costs incurred are said to be £197,867.50 excluding VAT.

[38]Though we may take into account the Claimant’s ability to pay we are not necessarily required to do so under rule 84.

[39]Whilst the Claimant has asserted that she has health issues and has not worked since the termination of the contract between the First Respondent and IDL, she has provided no actual information as to her means or assets. We bear in mind that she has evidently had a long career, latterly attracting a significant salary, and that £20,000 represents only some 10 percent of the costs actually incurred, though admittedly those are necessarily as yet untaxed, and will not be so. In the circumstances it is not appropriate to take any further account of any unquantified alleged inability to pay the sum claimed. The Applications by the First and Third Respondents First Application

[40]The Claimant’s strike out application was categorically dismissed by Employment Judge Batten following a hearing by CVP on 7th July 2020.

[41]There was then a reconsideration, heard on 15th January 2021 to consider whether alleged difficulties in communication with her counsel throughout the earlier remote proceedings had prevented the Claimant from having a fair hearing of her application, and whether “fresh evidence” should be admitted. Employment Judge Batten dismissed the application fairly shortly. She also refuted any suggestion that the conduct of the Respondent’s legal representatives, particularly that of Mr Panesar QC as counsel for the First and Third Respondents, had been improper or that they had misrepresented information to the tribunal.

[42]The first application for costs was made, however, on the grounds that the application as originally made on 4th February 2020 had contained serious allegations of fabricating evidence, falsely representing evidence in the ET3, and misleading the tribunal which were only withdrawn on the eve of the hearing. It is that late withdrawal of extremely serious accusations which is said to be unreasonable conduct of proceedings.

[43]That initial allegation of falsification of evidence relates to the letters of complaint that were provided to the Third Respondent by members of her leadership team, shortly prior to her decision to terminate the IDL contract. We dealt with this issue in the course of the final hearing, recorded as follows: “168. Following this meeting four members of the lead team, independently of each other, contacted the Third Respondent further to express their opinion that the Draft Report did not represent a balanced picture of the department because the quotations selected for inclusion were predominantly negative, did not reflect the fairly even split between those who expressed satisfaction with the lead team or the Third Respondent and those who did not, in particular that it did not record positive things which they themselves had said in their interviews, and to express their concerns as to the way the Claimant had conducted the process. These were L Bowen, E McDonnell, A Thompson and T Morris.169. Three of these people put their concerns in writing as follows. T Morris’s email dated Thursday 18th October 2018: (doc 1004). A Thompson’s letter dated Friday 19th October 2018: (doc 998). E McDonnell’s email dated 22nd October 2018: (doc 1002). Although they had each spoken to the Third Respondent to some extent before delivering their written concerns, in each case the initial approach was unsolicited by her.

170. Although the Information Commissioner’s Office has criticised the fact that these letters were produced outside of the First Respondent’s computer or email system hard copies were properly delivered into the control of T Houghton on 30th October 2018.

171. These letters are not fabrications, as had previously been asserted by the Claimant but which allegation is sensibly not now maintained. They were prepared on the dates shown and represent the genuine views of the authors.”

[44]These letters were also, however much the Claimant may not wish to acknowledge the fact, a correct evaluation of the deficiencies in her methodology and the lack of objective impartiality in the preparation of her Draft Report.

[45]We are satisfied therefore that the attack upon the provenance of this evidence expressed in the language of an asserted deliberate fabrication, only to withdraw it at the last minute after some 4 months of preparation by the Respondents to defend the allegations is unreasonable conduct of the proceedings. In retrospect we can and do have regard to the findings at the final hearing, that the Claimant had already formed a view that the Third Respondent was “not up to the job”, that she took advantage of the autonomy she was given in setting up focus groups to elicit adverse comments on the leadership team and the Third Respondent in particular, and that although it was overall expressing criticisms of the HR function her Draft Report was nonetheless “anodyne”. The Claimant was well aware, therefore, that there were in fact valid criticisms to be made of this piece of work yet nonetheless made a strike out application alleging fabrication when contemporaneous evidence of those criticisms was produced. Whilst late withdrawal of itself would not necessarily found an application for costs, coupled with the nature of the allegations so withdrawn it does require us to consider making an order in these circumstances. Second Application

[46]We repeat our observations at paragraphs 21 to 29 in respect to the victimisation claims.

[47]Similar criticisms of the Claimant’s failure to engage with the essential evidential requirements necessary to establish her case on protected qualifying disclosure also apply.

[48]The Claimant is an experienced HR practitioner and has had intermittent legal advice throughout these proceedings. Yet she came to the final hearing 2 ¼ years after presenting her claim (2 ¾ years since the termination of the IDL contract) and, having prepared a very lengthy witness statement with her complaints still in a state of flux after last minute amendments and withdrawals. She also came to trial apparently still without any clear understanding or articulation of what her own case was on the core factual allegations of what was said on a relevant occasion, even though there were in the end only five such matters relied upon.

[49]As well as the withdrawal of two victimisation complaints, the Claimant in respect of one of those same allegations also withdrew it as an allegation of protected qualifying disclosure. That specific allegation also had never had any reasonable prospect of success.

[50]Of the remaining five alternative allegations of having made a protected qualifying disclosure, one as we have already said, we found not to have happened. Another, as severely limited in scope on the actual evidence, also did not amount to the, making of a relevant disclosure of information, because: “265. The passing comment to L Bowen about CL, asking her to “explore” if everything appropriate was being done did not disclose information about what had actually been done as the Claimant admittedly did not know the situation.”

[51]One of the remaining allegations was so far at odds with the evidence that we concluded: “255. The Claimant’s case in respect to Disclosure 2 is a well-nigh total distortion of what actually happened.256. The email from SG was dealt with promptly and appropriately in all the circumstances, except that the Claimant failed to record her discussion with SG or to relay that information back to the Third Respondent so that further action might be taken as appropriate, and indeed positively misled her as to what actions she had taken.

257. The Claimant did not ever state in “unequivocal terms” that she did not have the authority to conduct a formal investigation, as this would be wholly inconsistent with the manner in which she actually expressed any reservations when contacting SG on 29th October 2018.

258. What the Claimant in fact said about the inappropriateness of her investigating any grievance against L Bowen (or any other member of the lead team) is not the disclosure of any information. There was no formal grievance raised. All the Claimant was being asked to do was to speak to SG in the first instance to clarify the issues raised, which she was clearly perfectly willing to do, and not at any stage to carry out any form of investigatory hearing with L Bowen.”

[52]Of the further two allegations, the first in relation to the “Safecall” report, was as we have said in the context of it being claimed to have been a protected act the expression of a provisional view on the process to be adopted. As the Claimant was ignorant of the precise circumstances, and on her own admission did not have recent or relevant experience as an investigator in disciplinary matters, this opinion did not carry, and could not have carried, the weight necessary to make it an allegation which could qualify for protection.

[53]In the context of this complaint it is to be noted that from the issue of her ET1, until the hearing where she sought to put a different gloss upon it the Claimant had made an unequivocal assertion as to what the Third Respondent had said about when she had first received the complaint and what she had then done about it and which we found to be “demonstrably false”

[54]Also, although the Claimant was given leave, very late in the course of proceedings, to amend the alleged detriment arising from this purported disclosure in order to claim as against the Third Respondent “attempting to pressure the Claimant into being part of an ill-conceived covert investigation and caused or contributed to acute anxiety and distress”, this was in fact entirely at odds with her own evidence as to the sequence of events. We concluded: “251 We find, on balance, and in accordance with the Claimant’s own case that the expression of opinion came after she was invited to use her expertise to “flush out if there were any issues regarding VC.” The subjecting of her to this alleged detriment cannot therefore have been because she had made any disclosure.”

[55]The final complaint is of having made a protected qualifying disclosure related to the submission of the Draft Report. Despite repeated opportunities to do so, including at the final hearing the Claimant has never properly identified any specific part of the content, or contents, of that report which is relied upon as actually communicating any genuine belief upon her part that a legal obligation was being breached, or that the health and safety of individuals was being endangered, or that any matter as being concealed. Accordingly, we concluded: “243. The Draft Report does in fact not contain protected qualifying disclosures. The Claimant is an experienced, human resources professional. If she had genuinely and reasonably believed that the quotations from interviewees actually disclosed any breach of a legal obligation or an endangerment to health or an attempt to conceal this information she would have said so. 244. If she had genuinely and reasonably believed this to have been the case, she would have made specific recommendations as to how these matters ought to be addressed and would not have presented the position to Third Respondent simply as one where the low morale in the team could easily be addressed.”

[56]The Claimant did not properly or adequately plead the elemental facts relied upon as the first stage of establishing potential liability. At no stage prior to her witness statement had the Claimant ever attempted to identify what she in fact did or said. When she came to the preparation of that statement, we did, of course, conclude: “241. Establishing from the Claimant the facts of what was actually said in respect of any alleged oral disclosure has proved elusive. The Claimant has not provided any clear verbatim account of what was said close to the time. It is now, of course, nearly 3 years after the events in question and lapses in memory might be excused. Unfortunately, however, the more detailed accounts now given by the Claimant, particularly in her witness statement, bear all the hallmarks of being what she would like to think that she said in support of her claim as it has now been constructed, rather than what actually happened at the time.”

[57]Nor did we find that the Claimant had established any facts from which a “prima facie” causal link could be established between any of the putative disclosures and an alleged detriment.

[58]When the Claimant came to give her evidence, it was apparent that the pleaded claim, as amended, and the evidence in her statement did not correspond to her case as it was now being put before the tribunal.

[59]In her response to the Costs Application the Claimant has sought to challenge the way in which she was cross-examined by Mr Panesar Q.C. much as she did at the reconsideration hearing. Like Employment Judge Batten on that earlier occasion we find nothing to criticise in the conduct of these proceedings.

[60]The Claimant can have no proper cause for complaint just because the fundamental weaknesses in her case were methodically and incisively exposed by experienced and able counsel.

[61]This is not a case such as ET Mahler v Robinson

[1974] ICR 72

, where the deficiencies in the claim were only apparent “once the dust of battle had subsided”. Objectively this claim as presented simply had no reasonable prospect of success.

[62]The Claimant has clearly committed to a narrative in which she sees herself as a “whistleblower”. As she told us in the course of her evidence, her own preferred descriptions of herself are as “a canary singing in the mine” or as somebody “sitting on a tinderbox”. That does not, however, mean that it is reasonable for her to have brought or continued specific legal proceedings under these statutory provisions, which on the actual facts that were known to her are, and were, misconceived. Whether or not her legal advisers share some responsibility in failing to concentrate the Claimant’s mind upon the real issues in a claim of this nature, or whether the Claimant chose not to heed advice is not something we have to concern ourselves with or consider in relation to costs.

[63]The unreasonable conduct for which the Claimant must take responsibility lies in her failure to provide an accurate statement of the case in its essential elements and which actually accorded with the facts as known to her. This would have indeed put an entirely different complexion on the claim and would have made it clear why, objectively, it had no reasonable prospect. In this context we take into account the fact that the Claimant has made a number of misleading statements which she has never corrected in a timely manner.

[64]The preconditions under both rules 76 (1) (a) and (b) are therefore made out. We must, therefore, consider the making of a costs order. In all the circumstances of this case, especially given the extent to which the Respondent, a public body, has been exposed to the expense of defending an unmeritorious claim we do exercise our discretion to make an award.

[65]The exercise of that discretion is a matter for the tribunal and does not require direct apportionment of costs incurred to the unreasonable conduct: McPherson v BMP Parabas

[2004] ICR 1398

. In any event the application is limited to £20,000 under the summary assessment in rule 78 (1) (a), although the total costs incurred are said to be £285,654.18 excluding VAT. The costs of defending the strike out application are put at £12,312.12, and of further resisting the reconsideration application £8,430.88.

[66]Though we may take into account the Claimant’s ability to pay we are not necessarily required to do so under rule 84.

[67]Whilst the Claimant has asserted that she has health issues and has not worked since the termination of the contract between the First Respondent and IDL, she has provided no actual information as to her means or assets. We bear in mind that she has evidently had a long career, latterly attracting a significant salary, and that £20,000 represents only some 7 percent of the costs actually incurred, though admittedly those are necessarily as yet untaxed, and will not be so. In the circumstances it is not appropriate to take any further account of any unquantified alleged inability to pay the sum claimed.

Relevant law

[68]In their second application dated 27 August 2021 the first and third respondents contend within rule 76(1)(b) that the claimant’s claims as pursued by her had no reasonable prospects of success and a costs order should therefore be made.

[69]Mr Panesar KC refers the Tribunal to the liability decision of the Lancaster Tribunal in which all of the claimant’s claims were dismissed, and says that the claimant was found to have been untruthful in multiple fundamental regards. He says that is clear from the findings of the Lancaster Tribunal that the claims, as they were ultimately presented, had no reasonable prospect of success.

[70]Mr Panesar KC again reminds the Tribunal that the claimant is a very experienced Human Resources professional, who, while at times acting in person, had, at various stages (including when preparing and issuing her claim, at the strike out hearing, and in the preparation for and at the final hearing) access to specialist employment legal advice and representation. He submits, therefore, that she was well aware of what was required to be proved to succeed with her claims and the importance of her witness evidence to that outcome. There was the opportunity for review and reflection on the content of the claim before it was filed as it was shared with the respondents in draft form in December 2018 prior to being issued.

[71]He submits that even were it not the case that the claimant had legal advice and representation, the fact that she at times acted in person does not absolve her from the costs consequences of her unreasonable conduct and untruthful evidence. In AQ Limited v Holden

2012 IRLR 648

, the EAT found that whilst it is appropriate for an unrepresented party to be judged less harshly in terms of their conduct than a professionally represented party: ‘This is not to say that lay people are immune from orders for costs: far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity.’

[72]In this case, Mr Panesar KC says, the claimant was well aware of the implications of the very serious allegations being made against the first and third respondents and a number of its employees, including the cost and time that would have to be expended in responding to and unpacking so many allegations of such seriousness. The claim was founded on allegations against a significant number of individuals within the first respondent’s organisation. The nature of the allegations and the roles in which those individuals were employed as senior Human Resources professionals only added to the severity of those allegations in terms of the potential impact on their reputation and professional standing. In oral submissions Mr Panesar KC emphasised the possible impact of the allegations on the careers and professional standing of individuals, including Ms Weston who had a lifetime’s experience in the nuclear industry.

[73]Mr Panesar KC says that although there were multiple areas where it should have been plain to the claimant that her position was unsustainable, she made no amendments (nor sought to make any amendments) to her claim until a very late stage in proceedings. Either shortly before the hearing or during the course of it (in either case some three years after issuing her claim), she made a number of important changes to her stated position. She also made a number of important concessions. He directs the Tribunal to specific matters which he says amounted to unreasonable conduct of the proceedings or where the claimant pursued allegations which had no reasonable prospect of success:(1) Late changes to the basis of claim In the claimant’s revised list of issues submitted on 13 May 2021 (over two years after her claim was issued), the claimant alleged for the first time that she had been subjected to a detriment by the third respondent attempting to pressure her into being part of an “ill-conceived covert investigation and caused or contributed to acute anxiety and distress”. The allegation previously was only that there had been a failure to investigate the content of the Safecall report. That claim, which the first and third respondents were obliged to defend, was found to be entirely untrue.

(2) Withdrawal of protected disclosure allegations The claimant conceded that the alleged Disclosure 2 did not amount to a protected act and at the outset of the hearing (in a further revision to the revised list of issues) accepted that the failure to investigate this alleged protected disclosure was no longer separately pursued as an allegation of detriment.

(3) Withdrawal of multiple factual allegations In her evidence the claimant retreated from a number of factual allegations made in her claim. In relation to alleged Disclosure 3, her evidence was that she informed Ms Bowen of the situation with RS and JN so that she might seek to persuade RS and JN to take the matter further. This was a very different allegation to the one set out in the claim form and one which plainly had no reasonable prospect of success as being found to amount to a protected disclosure or a protected act. Again the claim was found to be without foundation by the Lancaster Tribunal.

(4) The abandonment, at trial, of alleged Disclosure 5 The claimant alleged that she had made a protected disclosure in her email to Ms Weston (the Chief Operations Officer of the first respondent) of 15 October 2018. The claimant maintained that allegation of a protected disclosure for two and a half years, The claim was withdrawn by the claimant in mid trial when in the course of cross examination on 17 June 2021, she accepted that Disclosure 5 was not a protected disclosure, and she had been wrong to allege that it was one. The claimant’s counsel confirmed the next day that the allegation was withdrawn. Not only had the claimant brought a claim which was unfounded and which she knew (or should have known) there was no basis for, but the claimant had sought the dismissal of Dr Weston.

(5) The false allegation that the third respondent ‘sat on’ a report for months The claimant stated that she made Disclosure 1 by advising the third respondent, in relation to a Safecall report made on 6 September 2018, that “an investigation should be conducted immediately to address harassment in the workplace”. It was the claimant’s specific case, repeated multiple times, that the third respondent ‘sat on that report’ and admitted that she had sat on it for a number of weeks. The claimant stated in her claim form at paragraph 33 that: “On 12 September Ms Roberts ultimately informed the Claimant of the Safecall alert which followed the report the previous month. Ms Roberts admitted that she had “sat on this for weeks” and taken no action’. The claim that the third respondent had either sat on the report, or had said she had, was plainly and demonstrably untrue. It was pointed out to the claimant both before and at trial (including at the strike out application hearing) that the third respondent could not have sat on the report for weeks. It was not in dispute that the Safecall report: had been in existence for less than one week, having been received by Safecall at 6.35pm on 6 September 2018, less than six days prior to the third respondent’s conversation with the claimant. It was not received by the first respondent until 7 September 2018, or provided to the third respondent until 10 September 2018. The allegation of sitting on an important report central to the claimant’s case was patently untrue, but was maintained throughout by the claimant.

[74]Mr Panesar KC says that the claimant was shown to be an untruthful and unreliable witness in multiple fundamental regards. The Lancaster Tribunal found that: “the claimant’s case in respect to Disclosure 2 is a well-nigh total distortion of what actually happened …..the more detailed accounts now given by the claimant, particularly in her witness statement, bear all the hallmarks of being what she would like to think she said in support of her claim as it has now been constructed, rather than what actually happened at the time”.

[75]Mr Panesar KC invites the Tribunal to analyse each of the claimant’s claims to identify if they had no reasonable prospect of success. He says that the claimant’s claims, as they were ultimately presented, had no reasonable prospect of success. Indeed they were bound to fail. A more accurate statement of her claims by the claimant would have put an entirely different complexion on the case that the first and third respondents were required to meet and would have warranted a very different approach to the litigation and the evidence required to present and the costs incurred. The first and third respondents’ application for costs dated 27 August 2021 - the claimant’s submissions

[76]The claimant draws the Tribunal’s attention to the EAT’s decision which determined that the costs imposed on her by the Lancaster Tribunal were unjustified, as outlined in paragraphs 175-180 of the EAT’s judgment She says that the EAT exposed flaws in the initial costs ruling, supporting her unwavering contention that costs were unjustly awarded . She maintains that the EAT’s decision speaks for itself, and it would be contrary to principles of fairness and justice to impose costs once more.

[77]The claimant notes that the EAT ruled that the Lancaster Tribunal erred by not addressing whether Disclosure 1 had 'sufficient factual content and specificity' to amount to a protected disclosure and affirmed her status as a whistleblower, having made a protected disclosure and done a protected act in relation to Disclosure 1.

[78]The claimant asserts that recognition of her whistleblower status strengthens her position that to award costs against her would be unjust and inappropriate. The EATs decision underscores her genuine concerns and her right to raise them without fear of retribution or unfair financial consequences.

[79]The claimant asserts that the EAT’s findings show the importance of adequately considering the plausibility of crucial aspects of her claim prior to granting costs.

[80]The claimant challenges as misplaced the reliance on her experience as a Human Resources consultant, saying it does not equip her with the requisite skills to navigate the complexities of a whistleblowing case. She contends that her experience is of very limited relevance to the complex matter at hand, a position supported by the judgment in Blackbay Ventures Ltd v Gahir

[2014] ICR 747

, which emphasised the distinct nature of whistleblowing claims.

[81]She also challenges the argument that her legal representation should be taken into account when determining if she behaved unreasonably. She asserts that this argument is a compelling point in her favour. Her claims underwent thorough examination by legal experts, and at no point did they or indeed the Tribunal suggest that her claim lacked merit or was unlikely to succeed.

[82]The claimant reminds the Tribunal that in earlier hearings, Employment Judges ruled that a full hearing was required to decide the facts. The central argument put forward by the first and third respondents to oppose her strike out application, and pivotal to the Tribunal's decision to reject her application, was that the claim should be judged on its merits and should advance to a final hearing. Notably, efforts made by the second and third respondents to dismiss the case against them were rebuffed by judges, who deemed the factual circumstances complex and necessitating determination in a comprehensive hearing. Hence, the claimant says she was justified in believing it was entirely reasonable to proceed with her case to final hearing when substantial issues of fact remain unresolved.

[83]The claimant says that the Tribunal should not interpret a late amendment as an indication of unreasonable behaviour. Instead, the claimant was striving to act reasonably by narrowing the issues with the guidance of recently obtained legal advice. Moreover, in Harding v Paice

[2015] EWCA Civ 1231

, the Court of Appeal ruled that a late amendment to a claim should not automatically lead to an adverse costs order, especially if the amendment was made in good faith and did not cause substantial prejudice to the opposing party.

[84]The claimant disputes that she was dishonest in her account of the Safecall incident. She says that during the hearing, she clarified that she had not intended to imply that the third respondent had ignored the Safecall alert but that the comment referred to the third respondent’s inaction on the known issue of sexual harassment (which formed the basis of the Safecall report), rather than the Safecall report itself. The claimant acknowledges that she could have been more precise, but in crossexamination, she clarified that this was an error of inaccuracy rather than dishonesty. She says that inaccuracies in witness statements do not automatically imply dishonesty, and the context and circumstances surrounding the inaccuracy should be considered, recognising that errors can occur, particularly in lengthy statements prepared without professional help. She says that despite her explanation, the respondents’ submissions failed to take this explanation into account, and the Lancaster Tribunal also failed to record her explanation and instead concluded that she acted dishonestly, omitting any mention of the explanation she gave.

[85]The claimant says that if the respondents genuinely considered the claim to have little or no prospect of success, an application for a deposit order would have been made/granted, following the principles laid down in Van Rensburg v Royal Borough of Kingston-upon-Thames

[2007] UKEAT 0096/07

/1910. Further, the Tribunal refused the applications of the second and third respondent to be struck out. If the claims were in fact misconceived, the Tribunal would have granted this application, or alternatively used their discretion and made a deposit order. Therefore, the claimant cannot be reasonably expected to regard her own claims as "misconceived" when the Tribunal itself refused to treat them as such through the denial of the respondent's strike out/deposit order applications.

[86]The claimant says that the fact that the Lancaster Tribunal accepted the respondents’ evidence at the final hearing is no basis for asserting that it was inevitable that the Tribunal would do so, or that she did or should have made the same assessment. This is particularly so when the case was very complex and the claimant had not received any legal advice nor direction from the Tribunal that the claim was hopeless; nor that it had no reasonable prospect of success.

[87]Finally, the claimant notes that the second respondent made a substantial settlement offer of £160,000 a mere four days before the final hearing. She says that adequate weight should be given to the impact of the substantial value of the late settlement offer on her perception of the merits of her claim. Although recognising that the EAT disagreed, the claimant contends that this was not an unreasonable assumption for her to make. This proposition is supported by the judgment in Scherer v Counting Instruments Ltd

[1986] 1 WLR 615

, where the court held that a settlement offer made at a late stage in the proceedings was a relevant factor in determining the reasonableness of pursuing the claim. The first and third respondents’ application for costs dated 27 August 2021 -

[88]Although Mr Panesar KC identifies specific matters, set out at paragraph 73 above, in support of his contention that the claimant’s claims had no reasonable prospect of success, his overall contention is that the claimant’s claims were bound to fail, and accordingly the threshold test in rule 76(1)(b) is satisfied. This, as understood by the Tribunal, is a contention that all of the claimant’s claims were bound to fail. Certainly Mr Panesar KC has not sought to analyse to any greater extent the individual allegations made by the claimant.

[89]The claimant contended that she made eight protected disclosures within section 43B of the Employment Rights Act 1996, each of which was also said to have been a protected act under section 27 of the Equality Act 2010, and suffered six detriments as a result, including a failure to investigate the Safecall allegations, later refined into attempting to pressure her into being part of an ill-conceived covert investigation, and the termination of the IDL contract.

[90]It is important, in the Tribunal’s view, in assessing whether the claimant pursued those claims when they had no reasonable prospect of success, not to take too fragmented an approach, and to look at the claimant’s case as a whole as well as the individual components. As the EAT recorded at paragraph 125 of its decision, the claimant’s case was that there was a steady series of disclosures by her, building up to the October 2018 report, and indeed following it. In light of the Lancaster Tribunal’s findings, a number of these, as the EAT put it, fell factually by the wayside; but her case was that there was an overall chain of events that unfolded, with the Safecall report leading to the focus groups, leading to the claimant’s report, leading to the reaction, leading to the dismissal; and the Lancaster Tribunal specifically addressed whether Disclosure 1 factually influenced the decision to dismiss. The fundamental question before the Lancaster Tribunal was to identify the reasons for the decision to terminate the IDL contract, and whether the claimant’s disclosure, beginning with Disclosure 1 and ending with Disclosure 6, the report of 16 October 2018, materially influenced that decision.

[91]The Tribunal has regard to the EAT’s concerns about the language used by the Lancaster Tribunal in the liability decision and will undertake its own assessment of the prospects of success, recognising that, as the claimant says, the fact that a claim, or even a number of claims, have failed on the evidence does not necessarily mean that the claims or any of them had no reasonable prospect of success.

[92]By way of preliminary observation, it is important to remember that the EAT found that the Lancaster Tribunal erred in three respects in its conclusions about Disclosure I, which was that on 12 September 2018, the claimant advised the third respondent that an investigation should be conducted immediately to address harassment in the workplace. The errors related to its finding that the claimant had not disclosed information and its failure then to consider whether the claimant reasonably believed that what she was disclosing tended to show wrongdoing. The claimant is wrong when she says that the EAT accorded her the status of a whistleblower; in fact, because the appeal failed on causation and it did not need to decide the point, the EAT did not decide the reasonable belief question or the belief in public interest issue which would have followed in considering whether the claimant had made protected disclosures. But the EAT did find that the disclosure was a protected act, in that the claimant knew that there had been an allegation of sexual harassment which she was saying should be investigated.

[93]This is important in that, as the EAT recognised, it could not be said that the claimant had no reasonable grounds for saying that Disclosure 1 was a protected disclosure or protected act; and this was the event that led to the focus groups and ultimately to the report and the termination of the IDL contract.

[94]As to the reason for the termination of the IDL contract, the findings of the Lancaster Tribunal, which were upheld by the EAT, were as follows:247. The reason why the Third Respondent in fact decided to terminate the contract with IDL is identifiable from the reason why her position changed between the initial receipt of the Draft Report and its being shared with the lead team and the subsequent giving of notice.

248. The principal difference is the fact that Third Respondent was informed by four members of the lead team that they independently had serious doubts about the lack of balance in the report such that they no longer fully trusted the Claimant.

249. Those concerns were genuinely and reasonably held, and the representations made to the Third Respondent were therefore simply a record of observed doubts about the manner in which the feedback session had been conducted, not as a result of the Claimant having made any alleged disclosure. They certainly did not induce the termination of the IDL contract because the report contained a reference to CL.

250. Also, L Bowen had by then updated the Third Respondent for the first time as to the actual costs involved in the IDL contract.

251. We are satisfied therefore that the reason why the IDL contract was terminated was that the Third Respondent had received reliable information which cast doubt on the balance and impartiality shown by the Claimant in the preparation of the Draft Report, that the report itself lacked any meaningful analysis and that its recommendations were vague and entirely generic.

252. This questionable and insubstantial piece of work by the Claimant had, however, incurred a cost to date of in excess of £12,000.

253. The First Respondent was continuously operating under financial constraints. Where such a cost evidently does not represent good value for money it ought properly to be challenged by a publicly funded body.

254. Had the Claimant in fact done a protected act which could realistically be connected to the termination of the IDL contract, then the failure to inform her, or indeed anybody else who asked at that time, of the full underlying reason for “financial constraints” being invoked as a ground for terminating the contract would be sufficient to reverse the burden of proof on the victimisation complaint. That is not however the case here, and it cannot so operate.

255. We are further satisfied that the reference only to “financial constraints” was in order that the Claimant could indeed, had she wished, have left “with her head held high” and with no openly voiced criticism of her work.

256. The IDL contract was not terminated because of the subject matter in any alleged disclosure by the Claimant.

[95]The Tribunal finds that the claimant had reasonably arguable grounds for contending that the contents of the report were the reason for the termination of the contract. In particular:(1) In September 2018 she had been awarded an 18-month contract. Within a few weeks, that contract had been terminated, ostensibly on the ground of unspecified financial constraints.

(2) The decision was communicated to her less than two weeks after the production of the report which was critical of the first and third respondent.

(3) In their responses, the first and third respondents referred to performance concerns which had not been communicated to her; indeed, the third respondent had told her the financial constraints were the only reason for the decision. The third respondent had not told her the truth about the reason for termination.

(4) The first and third respondents disclosed letters from members of the Human Resources team of which she was until then unaware.

(5) The claimant was aware that following the termination of her contract, the first respondent had entered into valuable new contracts with a third party which included the same or similar work as hers, which cast doubt on the alleged financial constraints.

(6) The Lancaster Tribunal found that the report was a material factor in the reason for the decision, but not in the way the claimant contended. The Lancaster Tribunal also found that had the report amounted to a protected disclosure or protected act, the burden of proof would have shifted to the first and third respondents.

[96]In view of these factors, the Tribunal finds that the claimant’s case as to the causative effect of the report cannot be said to have had no reasonable prospect of success. The Tribunal notes and respectfully adopts the conclusions of the EAT:182. …..As to causation, that depended on the precise sequence of events, and what influenced the mind of the third respondent, and again was fact sensitive. Had the tribunal found in the liability decision that the report was a protected disclosure, or (as the tribunal itself said) a protected act, then the burden to disprove causation would have fallen on the first and third respondents.

183. ….. As to causation, while the tribunal ultimately was not bound to accept that any of the matters relied upon by the claimant in support of adverse inferences made good her case, again it is another thing to say that no feature of her case in relation to inferences, or as to causation generally, was reasonably arguable, bearing in mind also that, on the tribunal’s own findings, there was a connection between the reasons for dismissal and the report. I do not think that the conclusion that there was “no evidence whatsoever” to establish causation can stand.

[97]Interposing slightly, the claimant’s Detriment 6 concerned he manner of the claimant’s dismissal, in that the telephone call from L Bowen was brusque, the claimant was not thanked for her previous work, A Rankin was listening in on the phone call and there was then no further communication from the Human Resources team.

[98]The Lancaster Tribunal found as follows:257. Nor was the decision to communicate that decision in a short, business-like telephone call taken because of any alleged disclosure. It was simply in the nature of the giving of notice to terminate a commercial contract, but where obviously the Claimant would be disappointed at losing that work and revenue source. It was the Claimant who in fact closed the call.

258. The Claimant did not know at the time that A Rankin was present with L Bowen. This is not a detriment to her, it did not place her at any disadvantage in “employment”, that during the currency of the IDL contract. In any event the reason why A Rankin was asked to observe was so that there would, if necessary, be a witness to what L Bowen said, and not because of an alleged disclosure made by the Claimant.

[99]This, in the Tribunal’s view, was a finding of fact. The Tribunal does not find that the allegation as to Detriment 6 had no reasonable prospect of success.

[100]The Lancaster Tribunal found at paragraphs 243-259 that the claimant’s report (“Disclosure 6”) did not include protected disclosures or protected acts. There was no identification in it of alleged wrongdoing which in the Lancaster Tribunal’s opinion there would have been had the claimant had any belief that wrongdoing had taken place. Although there was reference to a disabled employee, CL, the wording did not communicate possible discrimination.

[101]The question then is whether the claimant’s contention that the report included protected disclosures or protected acts had no reasonable prospect of success. In the Tribunal’s view, that cannot be said. The decision of the Lancaster Tribunal was fact-sensitive, and required careful application of several factors relevant to that determination. The claimant’s case undoubtedly faced difficulties, but the Tribunal does not find it had no reasonable prospect of success.

[102]The Tribunal is encouraged in this decision by the findings of the EAT on the point, which the Tribunal respectfully echoes:182. Further, while other claimed disclosures and detriments fell by the wayside, it seems to me that the central and most potentially significant part of the claimant’s case was always that her report amounted to a protected disclosure, and also a protected act, and that her company’s contract was terminated because of its contents. The facts as to the tabling and content of that report were not in dispute, nor when, how, and the gist of what, she was told of the decision to terminate her contract, nor the contents of the letter of confirmation. The tribunal correctly accepted that the report disclosed information. Whilst it did not err in concluding in the liability decision that the claimant did not reasonably believe that it tended to show relevant wrongdoing, that was a fact-sensitive determination…..

183. All of that being so, and in view of the contents of the claimant’s report, and the nature of the relevant wrongdoing on which she relied, and while the tribunal did not err in concluding that she did not have a reasonable belief that it tended to show relevant wrongdoing, I think it went too far to say that that was not reasonably arguable….

[103]This leaves the claimant’s other claimed protected disclosures or protected acts: Disclosures 2, 3, 4, and 5. (Disclosures 7 and 8 are relevant to the second respondent and the Tribunal will consider them below in connection with the second respondent’s application for costs.)

[104]As already observed, Disclosure 2 was amended before the hearing and Disclosure 5 was abandoned. These amendments followed the claimant benefitting from advice from Mr Arnold of counsel. The amendment was made in the claimant’s revised list of issues (settled by counsel) and was accepted by Employment Judge Lancaster on 1 June 2021 as clarification (described as “fleshing out”) of the existing allegation of failure to investigate. In the same hearing Employment Judge Lancaster refused an application to amend the claim in respect of Disclosure 6 but accepted an amendment regarding the involvement of the second respondent’s management which clarified the claimant’s case. It is commonplace in complex cases for contentions to be withdrawn or abandoned in response to disclosure or service of witness statements or as evidence turns out at trial or as advised by counsel. Such amendments and refinements of claims are common, and frequently assist the Tribunal This is not unreasonable conduct of the proceedings nor does it indicate that the contentions never had any reasonable prospect of success; it is pragmatic as cases develop and not to be discouraged by costs sanctions. The Tribunal does not find that the claimant’s conduct in amending her claim was unreasonable.

[105]Disclosures 3 and 4 failed on the facts. The claimant’s case was that there was a series of disclosures beginning with the advice to the third respondent about a formal investigation and leading through the focus groups to the 16 October 2018 report. The claimant, in the Tribunal’s view, had little reasonable prospect of establishing on the facts that any of Disclosures 2, 3, 4 or 5 were protected disclosures or protected acts. But the allegations were fact-sensitive and the Tribunal cannot say that they had no reasonable prospect of success, which is what rule 76(1)(b) requires. In any event, the crux of the claimant’s case that the IDL contract was terminated because of what was in the report remained unchanged.

[106]There are two matters which have caused the Tribunal more concern. The first is the claimant’s allegation that she was “pressured to undertake an ill-conceived covert investigation which caused or contributed to acute anxiety and distress”. The findings of the Lancaster Tribunal were that the third respondent’s request for the claimant to undertake the focus groups came before she made Disclosure 1, so that Disclosure 1 cannot have been the reason for the instruction. Further the focus groups were part of the Safecall investigation, rather than instead of it, and it was the claimant’s decision not to include any material about Safecall in her report. But the Tribunal finds that these were findings of fact and whilst very weak, the Tribunal cannot say that in a fact-sensitive matter, the allegation had no reasonable prospect of success.

[107]The second matter is the claimant’s allegation that the third respondent told her that she had sat on the Safecall report. The Lancaster Tribunal found that this was demonstrably untrue. The Tribunal agrees. The Tribunal is wholly unimpressed by the claimant’s attempt to explain this away by saying she intended to refer to the issue of sexual harassment generally. This is not credible. The Tribunal notes that the claimant repeated the allegation throughout the proceedings. It is possible that the claimant initially was simply mistaken. But she pursued this allegation as part of her factual case about Disclosure 1 even when she must have realised that it could not be true. This, in the Tribunal’s view, was unreasonable conduct of the proceedings and an allegation that had no reasonable prospect of success. However, the Tribunal does not agree that it was central to the claimant’s case about Disclosure 1. Having regard to the minor significance of the allegation, the Tribunal in the exercise of its discretion does not consider it appropriate to make a costs order because of this specific matter.

[108]The Tribunal concludes with two final observations. First, the Tribunal was not persuaded by Mr Panesar’s assertion that the claimant’s allegations were particularly serious because of the standing of the individuals about whom they were made. All allegations of whistleblowing or victimisation are serious and there was nothing unusual about the individuals in this case. Mr Panesar KC made too much of this. Second, Mr Panesar KC submitted that the claimant had been untruthful in multiple fundamental regards. However, whilst the Lancaster Tribunal found the claimant’s evidence to have been unreliable and said so in very clear terms, the Lancaster Tribunal made no express findings that the claimant had been untruthful in her evidence. The Tribunal has exercised the caution urged upon it by the EAT about the language and assessment of the Lancaster Tribunal. The Tribunal has found that many of the Lancaster Tribunal’s findings were fact-sensitive and that the claimant in some respects pursued allegations which had little reasonable prospect of success. The Tribunal has also found that the claimant pursued an allegation in respect of the third respondent that she must have known was untrue. The claimant would have been well-advised to examine some of the alleged protected disclosures and protected acts with more care and objectivity. But the Tribunal has not found that the claimant pursued claims had no reasonable prospect of success and the first and third respondent’s second application for costs fails. The second respondent’s application for costs dated 27 August 2021 and submissions in support of it

[109]The second respondent applies for a costs order against the claimant under rules 76(1)(a)) and (b). The application is made on three grounds, that:(1) The claim against the second respondent was always misconceived, which was explained on several occasions by the second respondent and the Tribunal to the claimant;

(2) The claimant deliberately exaggerated her case and misled the Tribunal through her evidence; and

(3) The claimant was unrealistic and unreasonable in response to the second respondent’s offer of settlement.

[110]As to the first ground, the second respondent says that although the claimant was engaged as a contractor by the first respondent at the relevant time for this claim, she insisted throughout that the second respondent was to some extent liable for her alleged detriments including the termination of her contract.

[111]In the claim form, she alleged that the second respondent’s liability was based on(1) alleged protected disclosures to the second respondent’s Mr P Vallance on 17 October 2018 (“Disclosure 7”) and 5 November 2018 (after notice had been given of the termination of her contract) (“Disclosure 8”);

(2) the first respondent had acted as the second respondent’s agent, and therefore was responsible for the first respondent’s actions as principal; and

(3) the second respondent was liable for the alleged detriments suffered by the claimant by virtue of sections 111 and/or 112 of the Equality Act 2010.

[112]The second respondent’s position throughout was that it had no involvement in the decision to terminate the claimant’s contract, and that no principal/agent relationship existed between the respondents. The claimant’s allegations that the second respondent was liable under sections 111 and/or 112 were never adequately particularised or explained by the claimant, in spite of repeated requests, and the second respondent’s position remained that these allegations were legally flawed.

[113]The second respondent submitted an early application to be removed from the proceedings. This application was opposed by the claimant and refused by Employment Judge Porter at a preliminary hearing on 31 July 2019. At a preliminary hearing on 23 October 2020, Regional Employment Judge Franey pointed out to the claimant that if she withdrew her claim against the second and third respondents, this would greatly simplify proceedings and reduce the time required for the final hearing from 15 days to 5. This would have furthered the overriding objective and avoided the need for the second respondent to participate further. In April 2021 the second respondent submitted a further application for strike out to the Tribunal, highlighting the flaws in the claim and restating that it had no reasonable prospects of success against the second respondent. In response to this application, the claimant prepared a new list of issues, shared with the parties on 13 May 2021, which amended the allegations sufficiently to ensure that the second respondent’s role would need to be tested in evidence.

[114]The Lancaster Tribunal found that:(1) It was ‘wholly implausible’ that the claimant’s phone call in October 2018 with Mr Vallance contained the alleged protected disclosures [paragraphs 261 - 263] ;

(2) there was ‘nothing in what the claimant actually said that required further investigation’ [267];

(3) there was ‘absolutely no evidence that the second respondent induced the termination of the contract’ [268];

(4) there was ‘nothing worthy of reproach in the actions of the second respondent’ [273]; and

(5) the second respondent could not be liable under sections 111 / 112 Equality Act 2010” [269, 274]

[115]The Lancaster Tribunal also found that no principal/agent relationship could exist between the respondents, as such a relationship was ‘expressly precluded’ by the terms of the service agreement between the first and second respondents [277]. This document had been introduced as evidence before the preliminary hearing on 7 July 2020 and was expressly referred to in that hearing. The claimant had never, in the three years since the beginning of the case, given any legal basis for her assertion that such a relationship existed between the first and second respondents.

[116]Ms Levene observes that on appeal to the EAT, the claimant challenged the findings regarding agency but did not challenge any other relevant finding in respect of the second respondent. In its decision, the EAT noted the limited routes for the claimant to succeed against the second respondent and addressed the issue of agency at paragraphs 129-144 of the judgment. As to costs, the EAT observed that:(1) The claimant did not articulate, prior to the trial, her detailed legal case under section 109 (185);

(2) However, the claimant had relied on section 109 and legal analysis was provided by her counsel’s closing submissions;

(3) It was unclear to what extent costs would have been awarded on the basis of the claims of inducing, aiding or abetting (which were not challenged on appeal) (187); and

(4) The Lancaster Tribunal had had a very strong and pervasive overall view (192).

[117]Ms Levene contends that:(1) The claims were never properly articulated against the second respondent. It was unreasonable to initiate claims when the mere legal label was all that was provided.

(2) The claims against the second respondent were dependent on a basic contravention by the first respondent. It was therefore completely unnecessary to maintain any claims against the second respondent since a full remedy could be provided by the first respondent.

(3) It was unreasonable for the claimant to continue her claim against the second respondent when she knew, or should have known, that such claims were either very weak or impossible. In its strike out application, the second respondent explained that there was no basis in law for any complaint under the whistleblowing provisions against the second respondent. The claimant could not pursue the second respondent for its own actions, yet that was how she put her claim.

(4) Further, in relation to the agency relationship, the Services Agreement undermined any notion of agency. There was no evidence that supported an agency relationship under the legal definition. During the proceedings, Employment Judge Batten on 7 July 2020 and Employment Judge Lancaster on 1 June 2021 queried the agency relationship and this ought to have caused the claimant think about the likelihood of her establishing such a relationship.

(5) There was no evidence of a particular relationship between the respondents to support a claim under section 111. As for the section 112 argument, the claimant had to prove that the second respondent knowingly helped the first respondent to commit a basic contravention. There was no evidence of any knowing help to commit a basic contravention.

[118]Taking the three questions in Opalkova, Ms Levene submits that the section 111 and section 1112 claims had no reasonable prospect of success.(1) It was never articulated in the pleadings how sections 111 or 112 operated in this case, which underscored that this was not a properly thought through claim. Neither the first nor the final List of Issues prepared by the claimant’s lawyers articulated how the claims under sections 111 or 112 operated. The claimant’s lengthy closing submissions did not mention sections 111 or 112.

(2) The claimant clarified her claims to Regional Employment Judge Franey as being about what the second respondent did in failing to investigate and stop the termination of the contract. The claimant was relying on protected disclosure detriment and section 27 Equality Act 2010 and did not rely on sections 111 or 112.

(3) In the final List of Issues the claimant continued to assert victimisation detriment that the second respondent failed to investigate or take action in respect of Disclosures 7 or 8. However, these were not set out as complaints under sections 111 and 112. The fact that the claimant had pleaded her complaints as detriments rather than under sections 111 and 112 was noted in the liability judgment, when it was observed that the second respondent cannot itself be liable as a primary party for the alleged basic contravention.

(4) A complaint about the second respondent’s behaviour in failing to investigate or take action was different to a complaint that it had instructed, caused or induced a contravention by the first respondent. The second respondent could not be liable for victimisation detriment as the necessary employment relationship did not exist between her and it.

[119]Turning to the second and third questions, whether the claimant knew the claim had no reasonable prospect of success, and, if she did not know that, should she have known, Ms Levene submits that the claimant both knew and should have known that her section 111 and 112 claims had no reasonable prospect of success:(1) The second respondent had explained that a claim under sections 111 or 112 could not succeed as she was complaining about the second respondent’s own actions. The second respondent had explained that she had to show that it instructed, caused or induced the first respondent to commit a basic contravention.

(2) The claimant had the benefit of legal expertise at the outset of her claim and when she was preparing for the final hearing. A more robust stance should be taken in light of the legal support provided to her.

[120]As to the contention that the claimant exaggerated her claims, Ms Levene relies on the same findings of the Lancaster Tribunal identified by Mr Panesar KC. She submits that the credibility as to what the claimant reported lay at the heart of her claims. Given the findings that she was not credible and had reconstructed events in her witness statement, it was unreasonable for her to advance claims of whistleblowing and victimisation against the first respondent, and in turn attempt to make the second respondent co-liable under sections 109, 111 and 112. Although the Lancaster Tribunal did not expressly find that the claimant lied, that was the upshot of the findings of fact. Thus the claimant advanced her case unreasonably, as it was based on reconstructed facts and assertions that lacked any plausibility.

[121]Ms Levene acknowledges the EAT’s observations as to costs but submits that a costs order remains appropriate. The EAT found that the broad premise of the Lancaster Tribunal’s decision was that the tribunal considered that the claimant’s case was fundamentally misconceived from the outset in almost every respect. This, together with the language used at various points, such as in paragraph 34 and in phrases such as “did not bear scrutiny” and “no evidence whatsoever”, suggested that the Lancaster Tribunal determined the costs applications on the basis of a very strong, pervasive overall view. Ms Levene submits that even if such phrases are removed, this does not change the fact of the claimant’s unreasonable behaviour generally, or that the claims under sections 111 or 112 had no reasonable prospect of success.

[122]Ms Levene submits that based on the liability findings of fact, costs should also be awarded on the basis that it was unreasonable to pursue the section 109 complaint. The claimant failed to advance any evidence that suggested agency. The EAT found that the Services Agreement was a strong pointer towards a contractor not agency relationship and at paragraph 140 noted that the claimant had not identified any other provision in the Services Agreement that should have led the Lancaster Tribunal to conclude that the first respondent was authorised by the second respondent to act as its agent in any capacity. Although the EAT stated that a reasoned legal analysis was put forward in the claimant’s counsel’s closing submissions on agency, and the failure of this claim was due to the findings of fact that went against her, it was still unreasonable for the claimant to pursue her section109 claim in light of the evidence against her and the lack of evidence that pointed towards agency.

[123]As to the second ground, although the claimant was legally represented at significant points of the proceedings, she:(1) submitted complaints to the Solicitors Regulation Authority about the behaviour of the second respondent’s in house counsel;

(2) applied for (and appealed against the decision to refuse to) strike out of the respondents’ defences, leading to considerable increased costs for the second respondent;

(3) submitted numerous applications and complaints regarding the first and second respondents’ disclosure in this matter, leading to unnecessary preliminary hearings and increased costs;

(4) submitted four Data Subject Access Requests and six Freedom of Information Requests, the majority of which were complex and involved significant work and additional legal time and cost by the second respondent to answer;

(5) made serious accusations against the respondents suggesting that they had fabricated evidence which claims were finally abandoned at the final hearing; and CASE NO 2402430/2019

(6) consistently shifted her case such that disclosure and witness evidence had to be regularly revisited to meet the new allegations made, causing significant increased cost.

[124]As to the third ground, Ms Levene submits that the claimant acted unreasonably in refusing the settlement offer of £160,000. When the offer was made, the full nature of the claims was articulated and statements had been exchanged. The claimant was supported by her trial counsel and had been working with him for at least a month.

[125]Ms Levene says that the claimant had unrealistic and unreasonable expectations of settlement. This was apparent from what she expected from the without prejudice meeting on 29 February 2019: £2million plus other requirements for individuals to be dismissed or disciplined, and to be able to meet with the respondents’ executive boards. She continued to have unreasonable expectations during the merits hearing, despite having seen the strength of the evidence against her. In June 2021, during the hearing, she produced her schedule of loss which was put at £1.17million plus interest. It was unreasonable to value the claim so highly, especially with legal representation, so a more realistic assessment ought to have been appreciated, taking into account litigation risks.

[126]Ms Levene contends that the offer of £160,000 was a significant sum. The claimant ought to have appreciated that she might not succeed in any of her claims, and ought to have accepted such a significant offer when the evidence against her was strong and she had been warned that costs might be pursued. The claimant was unprepared to consider her claim on a realistic basis. There were clear weaknesses to the claims against all respondents. The third respondent accepted that she alone took the decision to end the contract and so it was difficult to see how the claimant could have established any section 111 or 112 claims, even if such a claim had been properly articulated. The second respondent had warned the claimant that her claims were weak and legally flawed at various points. The claimant ought to have appreciated that she might lose and, having been warned, that the second respondent would likely seek costs against her. It was also unreasonable for the claimant to refuse this offer when this would have removed the stress of the litigation and any negative impact of further litigation on her health.

[127]Ms Levene observes that the £160,000 offer was on behalf of all respondents. Even if the Tribunal finds that it was not unreasonable for the claimant to refuse the offer, she submits that it was unreasonable to continue the claim against the second respondent. The offer made clear that if she did not accept the £160,000 offer, she was invited to withdraw against the second respondent.

[128]In conclusion, Ms Levene says that the second respondent seeks an order for the claimant to pay its costs in the sum of £20,000. It is unnecessary to find a direct causal link between the amount of costs and the unreasonable conduct. Given the claimant’s failure to heed the warnings that her claims were unnecessary against the second respondent, that her claims were legally unclear or flawed, her failure to either accept a significant financial offer or withdraw against the second respondent, and her overall failure to advance with any clarity her claims under sections 111 or 112 even in closing submissions, an award is justified. She says the application for costs has nothing to do with trying to suffocate genuine whistleblowers, nor prevent litigants from advancing genuine claims. However, regardless of a claim’s factual background, it is appropriate to seek costs when a claimant has behaved unreasonably and brought unsustainable claims to tribunal, especially when this is at huge expense to the public purse. The second respondent is seeking costs because of the claimant’s unreasonable conduct and certain of her claims having no reasonable prospect of success. Although costs are the exception and not the rule, this case merits an award in the sum of £20,000. The second respondent’s application for costs dated 27 August 2021 – the claimant’s submissions

[129]Many of the claimant’s submissions in response to the applications by the first and third respondents also apply to this application and the Tribunal will not repeat them.

[130]The claimant says it was not unreasonable to turn down the settlement offer. Compensation was not the main issue for her, which was to air her serious concerns and address the allegations about her performance. She was looking for vindication. She produced a schedule of loss during the hearing when pressed for it but it was on a without prejudice basis. She believed the respondents would require a nondisclosure agreement. The offer was made at the last minute and it was important to her to refute what was being said about her, to save her career and express her concerns about Sellafield.

[131]The claimant says that the second respondent’s offer, made a mere four days before the hearing, came after she had already invested substantial time and resources into the case, as established in Laporte v The Chief Constable of Gloucestershire Constabulary

[2015] EWHC 2908

, where the court recognised the significance of the timing of settlement offers. She had incurred significant legal costs and waited nearly three years for a hearing to be listed. Given the considerable time elapsed, particularly with delays attributable to the pandemic and the respondents’ persistent refusal to mediate, the claimant says that her desire to proceed with the scheduled hearing was entirely reasonable.

[132]As to the second respondent, she was not advised that she did not have a good claim. The applications to strike out the claim against the second respondent did not succeed and she was told the issues needed to be decided on the facts. She wanted to know what involvement the second respondent had in the decisions about her and she knew from disclosed documents that they were concerned about her treatment and could have intervened. As to section 109, she believes that the Lancaster Tribunal’s findings were based on assessment of the evidence rather than a fundamental defect in the claim. It was reasonable to believe that the respondents were working together.

[133]Further, she says the fact that the offer was made by the second respondent but sought to encompass the claims against the other respondents, despite the second respondent’s hitherto strident denial of any agency or liability, reinforced her wish to test her contention that the second respondent did have responsibility for its subsidiary's actions. She also wished to examine and understand why the first and third respondents behaved dishonestly towards her when terminating her contract. She was entitled to probe why senior Human Resources leaders had lied to her, to numerous internal staff and to the second respondent regarding the reasons for the termination. Furthermore, she wished to contest the second respondent’s assertion of having no involvement or concern about her abrupt dismissal, considering the evidence revealed in her data subject access requests.

[134]Also as to settlement, the claimant says that she repeatedly informed the respondents that she was willing to engage in mediation throughout the litigation. The respondents consistently rejected all offers of mediation, including ACAS, alternative dispute resolution, and judicial mediation, despite the importance of exploring settlement options as emphasised in Halsey v Milton Keynes General NHS Trust

[2004] EWCA Civ 576

. In contrast, she demonstrated a consistent willingness to explore resolution, as recorded by Regional Employment Judge Franey during the case management hearing of 2 November 2020 ,which noted that she was keen to explore mediation. Despite judicial encouragement that the case would benefit from judicial mediation, the respondents would not entertain the idea.

[135]The claimant contests the second respondent’s contention that her expectations of compensation were unrealistic, rendering the pursuit of litigation pointless. This, she says, is not a reasonable justification for refusing to mediate.

[136]The claimant challenges the allegation that she asked for a large compensation figure. She says that compensation was never the focus of the claim which is why she turned down a significant settlement offer and had not even prepared a schedule of loss as her focus was to ventilate the issues in court. The claimant does not dispute that a meeting took place in February 2019 between her, her husband, and two Directors of the second respondent, Mr Vallance and Mr Vineall. However, she disputes that she asked for a settlement figure of £2million at that meeting.

[137]The claimant does not accept that it was unreasonable to pursue her claim against the second respondent. She notes that on several occasions the second respondent applied for strike-out or deposit orders which were refused by the Tribunal, reinforcing her belief that her claim was not without merit. She says that she did not receive any advice from her legal representatives or the Tribunal that there was no case against the second respondent. In the absence of such guidance, she reasonably believed that her claim had merit and should be pursued.

[138]The claimant contends that the comments by the Lancaster Tribunal referenced by the second respondent lacked balance and impartiality, and the second respondent’s reliance on comments made by Regional Employment Judge Franey on 2 November 2020 is misleading, in that it omits a crucial observation also made by the judge, who said such a change would require the respondents “conceding if at all possible that the claimant made one or more protected disclosures/protected acts and fighting the case on the basis of causation alone.” As the second respondent is aware, the first and third respondents did not concede this nor gave any indication that they were inclined to do so. This context is essential in understanding the reasonableness of the claimant's decision to proceed against the second respondent.

[139]The claimant says that her counsel’s final submissions set out extensive evidence as to the potential liability and agency of the second respondent, as acknowledged by the EAT at paragraph 186 of its judgment It is incorrect for the second respondent to dispute this.

[140]The claimant says that even if her case regarding the second respondent’s liability was mistaken, it should be recognised that whistleblowing complaints and questions of agency/liability are highly complex areas of employment law. As evidenced by the legal teams engaged by the respondents, this case was far from simple. In Kuzel v Roche Products Ltd

[2008] EWCA Civ 380

, the Court of Appeal acknowledged the complexity of whistleblowing claims and the difficulties faced by claimants in establishing liability. The second respondent’s application for costs dated 27 August 2021 –

[141]The first issue for the Tribunal is whether, within rule 76(1)(b), the claimant pursued claims against the second respondent that had no reasonable prospect of success or, as Ms Levene puts it, were misconceived from the start.

[142]The Tribunal can deal quickly with Ms Levene’s argument that it was unreasonable to pursue a claim against the second respondent when any liability was contingent on a finding of a primary contravention by the first respondent, meaning that the claimant had a complete remedy against the first respondent.

[143]This contention is misconceived. The claimant cannot be criticised for pursuing the second respondent on the basis that her claim would only succeed against the second respondent if liability was also found against the first respondent. On the claimant’s case, both respondents would be jointly and severally liable. It was for the claimant to decide whom she wished to sue.

[144]In the initial list of issues in July 2019, the relationship between the respondents was raised in terms of whether they were jointly and severally liable for the actions of each other and if so, to what extent. The issues were whether the first respondent was the agent of the second respondent under section 109 of the Equality Act 2010 or whether the second respondent instructed, caused, induced or aided any contravention within sections 111 or 112. It will be recalled that the alleged Disclosures 1-6 were made to the first respondent and Disclosures 7 and 8 to the second respondent. The claimant contended at that point that Detriments 1,2, 4, 5 and 6 were done because she had made Disclosures 1-8 and detriment 3 because she had done Disclosures 1-7.

[145]The Tribunal agrees with Ms Levene that the claims under sections 109, 111 or 112 were couched in the vaguest terms. The Tribunal also agrees that it is difficult to see how the second respondent could be liable for its own actions in allegedly failing to intervene or stop the termination of the IDL contract, in view of the lack of any necessary relationship between it and her. But in the final list of issues in July 2021, the claimant contended that the second respondent was liable only under sections 109, 111 and 112. The claimant had, by then, accepted that there was no relationship between her and the second respondent by which the second respondent could be liable for public interest disclosure detriment.

[146]Regional Employment Judge Franey identified the nub of the claimant’s case against the second respondent at paragraph 34 of his case management orders of 21 January 2021: the second respondent accepted that it knew about the termination of the claimant’s contract and had decided not to intervene, a decision that the claimant attributed to her protected acts. Similarly, Employment Judge Lancaster identified at paragraph 13 of his case management orders of 1 June 2021 that following her receipt of unredacted copies of emails, the claimant knew there had bene communication between the first and second respondents on or about 29 October 2018 about the termination of her contract. The issue was what involvement the second respondent had in the relevant events, especially the termination of her contract and the decision not to intervene.

[147]The Tribunal notes that the second respondent’s two attempts to be removed as a respondent did not succeed. Although Employment Judge Batten and Employment Judge Lancaster observed that the basis of the claimant’s agency argument was unclear, the Tribunals considering the matter seem to have accepted that the question of the relationship between the respondents and the extent of the second respondent in the relevant events could only be decided on evidence. There does not appear to have been any requests by the second respondent for the claimant to particularise further the factual basis for the claim.

[148]As to that, the conclusions of the Lancaster Tribunal were that:268. There is absolutely no evidence that the Second Respondent induced the termination of the IDL contract, or any other alleged detriment. The Claimant relies only on the fact of the meeting on 22nd October 2018 but this does not in any way indicate that D Vineall on that occasion induced the termination of the contract, which was not even in contemplation at that stage, and was certainly not envisaged by himself.

269. So, even if there had been any basic contravention, the Second Respondent could not be liable under section 111 Equality Act 2010.

270. Nor did the Second Respondent knowingly aid or help the termination of the IDL contract to take effect upon expiry of the notice period by reason of anything that it did or failed to do after learning that that notice had been served.

271. The single allusion to the Claimant feeling that she had been victimised as at 16th November 2018 is not sufficient for the Second Respondent to have known that an act of victimisation was in contemplation, particularly when it could reasonably rely on the assurance that the decision was in fact taken on financial grounds.

272. Even if the Second Respondent would have had authority to suspend the taking effect of the period of notice had it wished to do so absent any actual request from the Claimant at the time, it had no sufficient information to found any investigation. The Claimant did not provide any particulars to substantiate her vague assertion that she felt she had been victimised. She did not ever identify the protected act relied upon, and certainly did not allege that it was only a single reference to CL in her Draft Report.

273. The Second Respondent did in fact seek to “take sides” with the Claimant and was prepared to challenge the First or Third Respondent as to why they had taken action. There was no “failure to investigate” which positively aided the notice coming into effect. There is nothing worthy of reproach in the actions of the Second Respondent after 29th October 2018.

274. So, even if there had been any basic contravention, the Second Respondent could not be liable under section 112 Equality Act 2010.

275. Nor would the Second Respondent be liable under section 109 Equality Act 2010.

276. Ministry of Defence v Kemeh [2014] ECA Civ 91 confirms that the common law principles as to agency apply in construing the relevant statutory provisions in respect to discrimination by an agent and for which the principal is therefore liable.

277. Even if the legal concept of agency does not necessarily involve an obligation to affect the legal relationship with third parties– and which is here expressly precluded by the terms of the Services Agreement – it is still necessary to show that “that a person (the agent) is acting on behalf of another (the principal) and with that person’s authority” (see paragraph 39 of the judgement of Elias LJ).

278. The source of the First Respondent’s authority to act with respect to the Claimant is clearly the fact that as a separate legal entity it had entered into a commercial contract with IDL. That is the source of its authority to make decisions regarding utilisation of the Claimant’s services as commissioned by its HR department. Similarly to the position in Kemeh (see paragraph 41) the limited degree of control that the Second Respondent might in practice have been able to exert over the First Respondent by advising, challenging or supporting comes “nowhere near constituting an authorisation…to allow the [First (or Third)] Respondent) to act on its behalf with respect to third parties.”

[149]These, it seems to the Tribunal, were findings of fact about the extent, if any, to which the second respondent had been involved in the decision to terminate her contract or any other detriment alleged by her. The Tribunal accepts that she had not, before trial, identified what specific matters she would rely on to support her contentions under sections 111 or 112, and at trial she relied on section 109 rather than sections 111 or 112. Those claims on that basis could be said to have had little reasonable prospect of success. But the claimant knew that she had previously been engaged by the second respondent; she knew that the second respondent was involved in Human Resources matters within the first respondent’s business; she knew the second respondent had been aware of the decision to terminate her contract. In the Tribunal’s view, the claimant was entitled to question what the involvement of the second respondent had been, even if the claim was speculative. The claims under sections 111 or 112 had little reasonable prospect of success, but the Tribunal cannot say they had no reasonable prospect of success.

[150]As to section 109, again the claimant pleaded her claim in the vaguest terms. But the EAT identified that at trial, the claimant made cogent legal submissions as to the operation of agency within section 109, and these were not straightforward areas of law. The EAT said this: It does appear that the claimant did not articulate prior to the trial her detailed legal case as to how the facts were sufficient in law to make the second respondent co-liable for any unlawful victimisation on the part of the first respondent under section 109. But she did plead reliance on that section and, it appears to me, the essential facts which she asserted as supporting that conclusion. Further, I was shown that a reasoned legal analysis was put forward in her counsel’s closing submission. As the discussion in Kemeh shows, what constellation of facts would be sufficient in law to make good section 109 liability is open to some areas of argument; and the claimant’s failure on this point rested also in part on the tribunal having (properly) made findings of fact that went against her, in particular as to the limits of the second respondent’s control over events.

[151]The EAT found that it was insufficient that the first respondent was a subsidiary of the second respondent. It found that the provisions of the Service Agreement were a strong pointer against agency, but not sufficient. It observed that the Lancaster Tribunal was not wrong to conclude that the assignment of Human Resources tasks did not itself involve the conferring of any authority sufficient to establish agency. But it stated that whether the degree to which the second respondent interested itself in such issues, and its interactions with the first respondent in relation to them, established a sufficient measure of control to give rise to implied authority amounting to agency, was a matter for the appreciation of the tribunal. It further found that the fact that managers at the second respondent had their own concerns about Human Resources matters at Sellafield, and had itself subsequently commissioned the PWC report in relation to them, were not facts that the Lancaster Tribunal erred by not treating as pointing to the conclusion that the first respondent was its agent for the purposes of section 109.

[152]What is clear from this is that the claimant’s section 109 claim failed on the facts but could not be said to have had no reasonable prospect of success. The terms of the Services Agreement relied upon by Ms Levene were not conclusive.

[153]For these reasons, the Tribunal concludes that it cannot say that the claimant’s claims against the second respondent had no reasonable prospect of success. The second respondent has not reached the threshold under rule 76(1)(b). The claim for a costs order fails on this basis.

[154]The Tribunal then turns to consider Ms Levene’s contention that the claimant acted unreasonably by not accepting the settlement offer of £160,000. As already stated, unreasonable refusal to enter into settlement negotiations or to accept a settlement offer may be unreasonable conduct, especially where the party persists in unsustainable allegations (Kopel v Safeway Stores PLC

2003 IRLR 753

[155]The Tribunal does not attach any significance to the events at the without prejudice meeting in February 2019. First, the claimant challenges Ms Levene’s assertion that at that meeting, she asked for a settlement figure of £2million. The Tribunal has no evidence on which it can resolve this dispute, but in any event, that meeting took place at an early stage, even before the issue of proceedings. What is striking is that it appears that until four days before the final hearing, no settlement discussions took place. The claimant says that the respondents declined to enter into any kind of dispute resolution process. Indeed, it appears that the claimant did not produce a schedule of loss until part-way through the final hearing. 156. £160,000 is a substantial figure. The Tribunal is not wholly convinced by the claimant’s assertion that the claim was not about the money, and it may be she now regrets not accepting it. The second respondent says it should have been accepted; the claimant says it strengthened her view about the strength of her case and caused her to doubt the assertions of the respondents that the claims had no merit. These considerations take the Tribunal no further either way; the Tribunal does not know how the settlement figure was arrived at, or why the offer was made so late in the proceedings, or what a realistic valuation of the claims might have been. The Tribunal cannot come close to saying that the claimant’s failure to accept this first offer of settlement, made only four days before the hearing, an offer made without any prior history of settlement discussions, without any explanation from the second respondent about why it was made so late, amounted to unreasonable conduct of the proceedings.

[157]The Tribunal does not find that the claimant acted unreasonably in not accepting the settlement offer. The second respondent has not reached the threshold under rule 76(1)(b). The claim for a costs order fails on this basis also.

[158]The Tribunal addresses finally the second respondent’s contention that the claimant deliberately exaggerated her case and misled the Tribunal through her evidence. Although, as the Tribunal understands it, the second respondent says that the claimant’s conduct of the proceedings as a whole was unreasonable meriting a costs order, the specific matters relied upon by Ms Levene are that the claimant:(1) submitted complaints to the Solicitors Regulation Authority about the behaviour of the second respondent’s in house counsel;

(2) applied for (and appealed against the decision to refuse to) strike out of the respondents’ defences, leading to considerable increased costs for the second respondent;

(3) submitted numerous applications and complaints regarding the first and second respondents’ disclosure in this matter, leading to unnecessary preliminary hearings and increased costs;

(5) made serious accusations against the respondents suggesting that they had fabricated evidence which claims were finally abandoned at the final hearing; and

(6) consistently shifted her case such that disclosure and witness evidence had to be regularly revisited to meet the new allegations made, causing significant increased cost.

[159]By way of preamble, in the view of the Tribunal, it is essential that the second respondent identifies in what precise ways the claimant’s conduct of the proceedings was unreasonable. The Tribunal was left in no doubt during the hearing about the strong feelings that these proceedings have engendered on all sides. But generalisations or appeals to impressions of the proceedings will not suffice. Further, and for the avoidance of doubt, insofar as Ms Levene, in suggesting that the claimant “deliberately exaggerated her evidence” means that the claimant lied, the Tribunal has already identified that although the Lancaster Tribunal found the claimant’s evidence unreliable in several respects, it did not find that she lied.

[160]Ms Levene couches her allegations in the most general terms. As to allegations (1) and (4), she makes no specific case about the unreasonableness of the claimant’s complaints to the solicitors’ regulatory body or her Freedom of Information or Data Subject Access Requests or why such matters, which did not arise in the course of the proceedings, should lead to a costs sanction against the claimant in the proceedings.

[161]As to allegations (2), (3) and (6), Ms Levene makes no case that any specific applications for disclosure against the second respondent were unreasonable. She makes no case as to why the application to strike out the second respondent’s response based on failures in disclosure was unreasonable. She does not explain in what specific ways she contends that the claimant’s amendments to her claims were unreasonable.

[162]The Tribunal has already made a costs order in favour of the first and third respondents in respect of issue (5). But the difficulty for the second respondent is that the allegations of fabrication and tampering with documents do not relate to or impugn the second respondent at all. They cannot merit a costs order in favour of the respondent.

[163]None of this establishes any basis on which this Tribunal can find that the claimant’s conduct of the proceedings was unreasonable, either in the specific ways alleged by the second respondent or generally.

[164]For these reasons, the Tribunal concludes that it cannot say that the claimant acted unreasonably in her conduct of the proceedings. . The second respondent has not reached the threshold under rule 76(1)(a). The second respondent’s claim for a costs order on this ground fails. Outcome

[165]In the result, therefore, the unanimous decision of the Tribunal, for the reasons given above, is that:(1) The application by the first and third respondents dated 9 September 2020 for a costs order against the claimant succeeds. The claimant acted unreasonably in the way these proceedings were conducted by her in respect of her contentions in her application to strike out the responses of the third and third respondents that the first and third respondents fabricated or tampered with documents. The claimant is ordered to pay the respondents’ costs arising from such contentions, limited to the sum of £5,000. Directions for assessment of such costs are given in separate case management orders.

(2) The application by the first and third respondents dated 27 August 2021 for a costs order against the claimant fails and is dismissed.

(3) The application by the second respondent dated 27 August 2021 for a costs order against the claimant fails and is dismissed.