Mr H Melmoth v Alternative Futures Group Ltd: 2403065/2023

EMPLOYMENT TRIBUNALS

Case No 2403065/2023

Between

Mr H MelmothClaimant

Alternative Futures Group LtdRespondent

Before

Employment Judge KM Ross

Date 26 January 2026

JUDGMENT

[1]The claimant’s claims that he suffered six detriments for making two protected disclosures pursuant to Section 43B and Section 47B of the Employment Rights Act of 1996 is not well founded and fails.

[2]The claimant’s claim for failure to make reasonable adjustments pursuant to Sections 20 to 21 of the Equality Act 2010 is not well founded and fails.

REASONS

[1]Detailed oral reasons were given at the conclusion of the hearing in January. Written reasons having been requested by the claimant, the following is provided.

Introduction

[2]The claimant is a litigant in person. He worked for the respondent as a care worker on their casual worker register. He brought claims for public interest disclosure detriment and disability discrimination (failure to make reasonable adjustments).

[3]The Panel noted at the outset of this hearing that the claimant was suffering from depression at the relevant time. We discussed adjustments with the parties for the Hearing. We explained to the claimant that we would have regular breaks. We said he may require additional breaks and if so, he should let us know and we would be sympathetic.

[4]We clarified the List of Issues with the parties. We were grateful to Ms Kight, the respondent’s counsel for her duty to the court in alerting us to the fact that it appeared the claimant wished to amend the claim, so it more accurately reflected the claim he wanted to bring at public interest disclosure detriment 2 of the List of Issues.

[5]We clarified that he wanted the allegation of detriment 2 to be that “In or around 22nd November 2022 the respondent wrote to the claimant telling him that he had been preliminarily referred to the DBS” instead of “The respondent reported the claimant to the DBS before they completed their investigation”. We allowed an adjournment so Ms Kight could take instructions and helpfully the respondent agreed the claimant could amend his claim without the need for a formal amendment application and thus we agreed and permitted that amendment.

[6]The Respondent also clarified that since the case management hearing before Employment Judge Slater, the respondent now agreed the claimant was a disabled person by reason of depression and that they had knowledge of disability at the relevant time.

[7]We noted that there had been 3 previous preliminary hearings on 9 May 2023, 25 July 2023 and 21 June 2024. It was at the hearing in June 2024 before Employment Judge Slater where the List of Issues was finalised, subject to the further refinement we agreed at the outset of the hearing. That is the agreed List of Issues in this Judgment.

[8]This case relates to a vulnerable person. The vulnerable individual is identified as X. We have used initials for many of the witnesses in this case or other individuals so as to protect the identity of X.

[9]We heard evidence from the claimant. For the respondent we heard from the claimant’s manager AB, investigating officer LW, Human Resources Employee Relations Lead KM and the Case Review Manager(also an Area Manager) DK.

[10]In brief, this case is about the claimant being suspended from the respondent’s casual work register whilst they investigated a concern about safeguarding and breach of their data protection policy. At the conclusion of the process the respondent found the allegations to be made out.The claimant was asked to work on a performance plan. He was restored to the casual worker register.

[11]The claimant says he was a whistleblower and made 2 protected and qualifying disclosures about the vulnerable person X and that was the reason he suffered 6 detriments including suspension from the casual work register.

[12]The respondent says the claimant took an audio recording on his personal mobile phone of a vulnerable person without consent and took photos containing the vulnerable individual’s data also without consent, which is a breach of their safeguarding policy and data protection policy and required investigation. They strongly dispute any detriments suffered by the claimant were due to any disclosures of information.

[13]The claimant said the respondent allowed only a short time to reply in the investigation and should have made a reasonable adjustment of allowing him more time. The respondent says that is not factually correct, that they conducted a fair process, that the claimant never requested that adjustment and they permitted the claimant to take part via email as an adjustment which he did he request. They denied any discrimination. The Issues Protected Disclosures

The Issues

[14]Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The claimant relies on the following disclosures:(1) On 31 October 2022 the claimant spoke to his manager AB on the telephone and repeated his concerns about the care and wellbeing of Resident X, that he was shouting, hitting himself and distressed and that his medication dose was not correct.

(2) On 1 November 2022, face to face, the claimant repeated to his manager AB his concerns about the care and wellbeing of Resident X, that he was shouting, hitting himself and distressed and that his medication dose was not correct. 3. The Tribunal will decide: (1) Did the claimant disclose information? (2) Did the claimant believe the disclosure of information was made in the public interest?

(3) Was that belief reasonable?

(4) Did the claimant believe it tended to show that: (a) A person had failed, was failing or was likely to fail to comply with any legal obligation; (b) A miscarriage of justice had occurred, was occurring or was likely to occur; (c) The health or safety of any individual had been, was being or was likely to be endangered; (d) Information tending to show any of these things had been, was being or was likely to be deliberately concealed? 4. Was that belief reasonable? 5. If the claimant made a qualifying disclosure, was it made to the claimant’s employer? 6. What are the alleged acts or deliberate failures the claimant relies on? The claimant will say he was subjected to the following detriments: (1) The claimant was suspended on 1 November 2022 and unable to work until he received the case review meeting outcome on 17 April 2023. (2). In or around 22nd November 2022 the respondent wrote to the claimant telling him that he had been preliminarily referred to the DBS (3) The respondent’s HR informed the claimant they would inform any prospective employer of the claimant that they had reported the claimant to the DBS, making him unemployable. (4) The respondent delayed their investigation, taking 4.5 months which seriously affected the claimant’s mental health.

(5) The respondent only gave the claimant 1 week to respond to the investigation.

(6) In or around April 2023 the respondent’s HR asked the claimant to sign a document which falsely stated he had deleted a recording and threatened to report the claimant to the police. 7. Having regard to the burden of proof, did the respondent subject the claimant to each act/failure, on the ground the claimant made a protected disclosure? Disability status 8. Was the claimant disabled (as defined in section 6 of the Equality Act 2010) at the material time (the time of the events the claim is about)? The respondent conceded the claimant was a disabled person by reason of depression and that they had knowledge of disability at the relevant time. Reasonable Adjustments (Sections 20 and 21 Equality Act 2010)

[15]What was the provision, criterion or practice (PCP) that the claimant relies on? The claimant will say the PCP was: (1) providing a short response time for him to answer the allegations being investigated.

[16]Did this PCP put the claimant at a substantial disadvantage in relation to a relevant matter compared to someone without his disability?

[17]If so, what was the substantial disadvantage? The claimant will say the substantial disadvantage was: the claimant was put under intense pressure and his mental health was impacted significantly.

[18]Did the respondent know, or could it reasonably have been expected to know, that the claimant was likely to be placed at a disadvantage because of his disability?

[19]Should the respondent have made the following reasonable adjustment: The claimant says the respondent should have given the claimant more time to respond.

Facts

[20]We found the following facts. We found that the claimant worked for the respondent on a casual basis from October 2017 and indeed had worked for the respondent for a significant period in the past before that. We found that the private house where the resident lived is a supported living environment: it is a two bedroomed property and the home of Resident X and another individual. We find carers attend on a 24-hours a day, 7 days a week basis. Resident X has mental health difficulties and learning disabilities and is mute. We find there are permanent staff but also casual staff and agency staff who cover shifts. It is a service that requires staff to sleep in, and staff sometimes work on a lone worker basis. The claimant had worked with Resident X in the past, but he had not worked for the respondent for four months during the summer of 2022. It is agreed he started working again for the respondent in October 2022. It is not disputed that at the time of these events the claimant hade only recently started working again at the home of Resident X.

[21]On 31 October 2022 it was either the second or third occasion on which the claimant had worked again with Resident X. The claimant’s line manager at that time was: “AB”: she had recently been appointed as a Team Leader in 2022.

[22]We turn to consider the events on 31 October of 2022. In his statement produced to the Tribunal the claimant said that he stated the following information to AB, his line manager, over the phone on 31 October. “X is currently vocalising screaming and shouting. It is so much worse than even a few months ago”. AB had no recollection of a telephone conversation with the claimant about this on 31 October. The phone records show that there was a seven-minute call from the claimant’s mobile to AB at 9.14am on the morning of 31 October 2022.However, when questioned in cross examination the claimant could not remember what he had said in that telephone call. He said: “I had a few phone calls that day, I told her what was going on, but it could have been about anything. I imagine I was telling her about the state of X, but I can’t remember, if you have a few phone calls you can’t remember, you just can’t”.

[23]The claimant agreed he made a telephone call of almost an hour (57 minutes), on that same morning to another worker, SC, when he said that he was concerned about X and that he had made an audio recording of X. It was not disputed that later in the day the claimant left a short voicemail message for AB. Neither the claimant nor AB suggested that they had met in person on 31October.

[24]On 1 November 2022, we find AB received a telephone call first thing in the morning to say that a member of staff could not attend work. It is not disputed that she rang the claimant and informed him of this. We find he told her that X was distressed and vocal and was shouting and not calm. We find AB told the claimant that X may be in pain and that he might need a doctor. We find AB could hear X in the background. We find AB phoned SC to see if she could cover the staff member who had called in sick. We find SC informed her she could not. SC also said the claimant had rung her the previous day and he had told her X was distressed. SC also stated to AB that X was distressed when the claimant was on shift, and she thought that X didn’t like the claimant. SC also told AB that the claimant had recorded X on his phone.

[25]We find AB then travelled by car to the home of X. There is no clear agreement about the order of events on that day, but both the claimant and AB agree that she attended the home of X. They agree there was a conversation in a room described as a sleep-in room or office at the property where AB asked the claimant if he had recorded X. The claimant admitted he had and also said he had taken photographs on his phone of the incident reports which contained personal information about X. There was a conversation about the recording on the claimant’s phone being deleted. The claimant was adamant that AB deleted the recording on his phone, AB was adamant that the claimant deleted the recording at her request. The Tribunal does not need to make a finding of fact about which recollection is correct as it is not directly relevant to the issues. It is undisputed that the recording of X being distressed was made by the claimant and it was deleted at the request of AB.

[26]At Tribunal the claimant sought to suggest that AB was lying about who deleted the recording. We make no such finding. We find AB was doing her best to recollect what happened some time ago, as was the claimant. We found AB to be a conscientious and reliable witness. We remind the parties that people can recollect events differently, that memory is not always reliable and changes over time and just because one party’s recollection is different to another parties it does not mean the other person is deliberately giving false information or lying.

[27]There is no immediate contemporaneous evidence about who deleted the recording on the claimant’s phone. The incident report completed by AB on page 282 and another copy at 283 simply says “Harry said he would delete the recording”. There is an email exchange between AB and HD who is the Area Manager relatively soon afterwards dated 25 November where HD asked AB to confirm that the claimant deleted the recording and whether it was deleted in front of her and AB responded saying “he deleted it and it went to his deleted bin and he deleted the bin in front of me”.

[28]In the investigation conducted by LW the claimant did not answer any direct questions. He did not respond to specific written questions at page 370 asking whether he had copies of the recordings and where they were stored. The respondent also sent the claimant several emails asking him to sign a document which stated he had deleted the recording and all copies, but the claimant did not sign those documents and instead asked why he was being sent the forms. The claimant did not state at any time in those email exchanges or to the Investigating Officer that the reason he was not going to sign the forms was that AB had deleted the recording and not him, which was a reason he suggested at the Tribunal. His claim form to Employment Tribunal which is lengthy says AB “permanently deleted a file on the 1 November”. It could be the claimant is referring to the recording, but it is wholly unclear.

[29]The claimant does not dispute he took an audio recording on his own personal mobile phone of a vulnerable person who was unable to give consent and whilst the person was in distress. The parties agree it was deleted, and it does not matter who pushed the button to do so for the purposes of this case.

[30]Although we found the claimant was doing his best to recollect events, sometimes his evidence was contradictory or implausible. For example, at one point when questioned he suggested he had consent from X for the recording because of X’s body language which the Tribunal found to be highly implausible and at odds with the evidence of the respondent’s witnesses about X’s capacity. (We found all the respondent’s witnesses LW, DK, KM and AB to be conscientious careful witnesses.) It also contradicted the claimant’s evidence in answer to other questions where he appeared to accept that X did not have capacity to consent.

[31]On 1 November 2022 we find AB left the premises once she ensured it was calm and she told her manager HD about the recording. We find HD told her to suspend the claimant from the casual work register because recording X without his consent was in breach of their data protection policy and was potentially a safeguarding issue.

[32]We find AB returned to the house later on 1 November 2022 with a colleague RR and informed the claimant he was suspended. The claimant was contradictory in cross examination about whether he was suspended or not that day, but we find that he was. It was recorded in the contemporaneous record by AB at page 282 and it also appears to be confirmed by the claimant in an email to the respondent on 21 November 2022 where he stated, “there were two managers present when I was suspended AB and RR”. The claimant’s suspension from the casual work register was confirmed in writing by letter dated 4 November 2022.

[33]The claimant was informed the reason for suspension were allegations that he had made a covert recording of a vulnerable person and that there was a breach of data protection policy. The respondent appointed LW as the Investigating Officer. She interviewed AB and SC. She contacted the claimant to explain she was the Investigating Officer and would be holding a telephone interview with him, but the claimant said he wanted a reasonable adjustment to communicate by email rather than phone and said he was a whistleblower. It took some time for the respondent to investigate whether or not it was appropriate to permit the claimant to participate by email only but eventually this was permitted by the respondent.

[34]On 9 January 2023 LW emailed the claimant with her questions. The claimant did not reply to those questions but asked questions of his own. LW chased up a reply to her questions, once again she received a reply which did not answer her questions. In these circumstances LW drafted a report trying to use the information which the claimant had provided. She also sent the claimant some further questions on 27 February 2023 and asked for a reply in three days. Eventually, following further correspondence the claimant said he would not reply to any more requests for questions until he received confirmation that prospective employers would not be told about the respondent referring him to the Disclosure and Barring Service “DBS”. The respondent had referred him to DBS in November 2022.p286.

[35]LW finalised her report in March 2023, concluding the matter needed to proceed to a case review. The claimant was invited to a case review meeting by DK. The meeting was held under the respondent’s casual worker policy. The claimant was invited to the meeting to discuss the allegations of the covert recording of a supported person and breach of the company’s data protection policy by letter dated 13 March 2023. The claimant was also sent the investigation report and interview notes.

[36]The claimant confirmed he would not attend the case review meeting scheduled for 21 March and instead he sent an eight-page submission letter and a 14-page addendum. He denied that the allegations of a covert recording of a supported person was a breach of the data protection policy and said he did not see anything wrong with processing data for someone’s care.

[37]Mr Cane emailed the claimant four clear additional questions to confirm what was on the recording the claimant had taken, whether the claimant agreed taking photographs or recording a supported person was not appropriate without their consent, whether taking a video recording as a means to record behaviour or raise concerns was not appropriate without consent and whether he believed he had used the appropriate processes in raising his concerns. The claimant submitted a two-page document with a nine-page addendum in reply. He did not answer the questions put to him stating that the company had not handled the situation well and that he was whistleblowing.

[38]The claimant was provided with an outcome on 17 April 2023. Mr Cane concluded that the allegations were well founded. He found the claimant had not disputed making the recording but justified it stating it was taken due to his concerns about X. Mr Cane found that it was clear from his review that the claimant had clearly been told previously the appropriate process to take if he wished to raise complaints or concerns about a resident’s care. The process was to raise concerns with a senior member of staff.

[39]The claimant, we find, had only just started working again with X after a fourmonth break. We find he took the recording on 31 October, the day before he mentioned a concern that X was distressed to new manager AB and therefore before she had had any time to consider those concerns.

[40]The outcome of the meeting was that Mr Cane suggested a performance plan for the claimant, he also confirmed that the claimant was no longer removed from the casual register and DBS was informed accordingly.

[41]We find the casual worker register allows workers to be informed of available shifts and gives them the choice of undertaking shifts or not. The claimant was subject to the policy which states at 3.5.3 “individuals may be removed from the register on a temporary or permanent basis for various reasons which include conduct or safeguarding allegations”. We find the respondent considered that taking a photograph of a form containing personal information about X and taking an audio recording without X’s consent was a potential safeguarding and also a breach of data protection issue. It was also a conduct issue. Accordingly, they decided to remove the claimant from the register whilst the matter was investigated and to prevent any similar incidents taking place.

[42]We find KM of the respondent’s HR department wrote to the claimant informing him as described above. KM made a referral to the DBS on a preliminary basis on 22 November 2022. She informed the claimant on the same day she had made the referral explaining that it was a preliminary referral and it had been made at the request of a third party. We find the third party was X’s social worker from the Local Authority. The social worker wanted DBS to be aware in case the claimant worked as a casual support worker elsewhere.

[43]KM explained to the Tribunal that a preliminary referral is made to the DBS when a matter is under investigation. We find that once an investigation is concluded if the respondent considers an application on a permanent basis is appropriate it will apply again to the DBS. At that stage KM confirmed that at the conclusion of the investigation in this case a permanent referral was not made, see page 403.

The Law

[44]The relevant law is found at sections 43B, 47B and s48(2) Employment Rights Act 1996. We had regard to the well known cases of Cavendish Munro Professional Risks Management Ltd v Geduld

2010 ICR 325

, EAT and Kilraine v Wandsworth London Borough Council

2018 ICR 850

when considering the requirement for factual information.

[45]When considering whether the disclosure was in the reasonable belief of the claimant, made in the public interest and tended to show a breach of 43B(d) ERA 1996, we had regard to Korashi v Abertawe Bro Morgannwg University Local Health Board

2012 IRLR 4

, EAT.

[46]When considering causation, we reminded ourselves of the guidance contained in Fecitt and ors v NHS Manchester (Public Concern at Work Intervening)

2022 ICR 372

. Determining the Issues.

[47]The first issue for the Tribunal is: did the claimant make two protected disclosures? Tribunal finds the claimant did not make a protected disclosure which is protected and qualifying on 31 October 2022, but he did on 1 November 2022. Protected Disclosure 1

[48]The first protected disclosure: On 31 October 2022 the claimant spoke to his manager AB on the telephone and repeated his concerns about the care and wellbeing of Resident X, that he was shouting, hitting himself and distressed and that his medication dose was not correct.

[49]The first question for the Tribunal is: did the claimant disclose information.

[50]For the claimant to have disclosed information, we must first be satisfied this conversation took place. The phone records of the claimant indicate there was a telephone conversation between the claimant and AB on 31 October. However, AB has no recollection of a conversation on 31 October. When the claimant answered questions in cross examination about this conversation he simply said he couldn’t remember. The claimant said repeatedly the conversation on that day “could have been about anything”. The Tribunal is unable to find that in the conversation on 31 October 2022 the claimant has disclosed “information” when he said in cross examination that he could not remember what was discussed. Therefore, there cannot be a disclosure of information and so the claim in relation to protected disclosure 1 fails at the first hurdle. Protected Disclosure 2

[51]We turn to the second disclosure: On 1 November 2022, face to face, the claimant repeated to his manager AB his concerns about the care and wellbeing of Resident X, that he was shouting, hitting himself and distressed and that his medication dose was not correct.

[52]We must consider these questions: Did the claimant disclose information?

[53]Did the claimant believe the disclosure of information was made in the public interest? Was that belief reasonable?

[54]Did the claimant believe it tended to show that:(a) A person had failed, was failing or was likely to fail to comply with any legal obligation; b) A miscarriage of justice had occurred, was occurring or was likely to occur;(c) The health or safety of any individual had been, was being or was likely to be endangered;(d) Information tending to show any of these things had been, was being or was likely to be deliberately concealed?

[55]Was that belief reasonable?

[56]Was the disclosure made to the employer?

[57]We turn first to consider what was said to consider whether the claimant disclosed information.

[58]We are satisfied in this disclosure that the claimant did disclose information. We find that in the telephone conversation with AB on 1 November the claimant described facts of how X was behaving, stating that he was distressed, shouting and hitting himself. AB recalled there was a conversation about X on that day.

[59]We find the claimant did believe the disclosure was in the public interest. The Tribunal finds that the claimant, who was working as a care worker on a casual basis, had a very high opinion of his own knowledge and capability. He said in an email “I know a lot more than a lot of the managers” page 319, and in cross examination when asked about this he said “yes, I do know a lot more than a lot of them, certainly the clinical staff”. We find that in the past concerns had been raised about the claimant acting without the appropriate authorisation. The claimant agreed in cross examination that he had contacted X’s Psychiatrist without the appropriate authorisation because he considered the medication X was prescribed was not correct. We find he took X to a day centre without a social worker or management approval and without contacting the centre. We find the claimant was reminded in a performance review of May of 2022 that he must work as part of a team, follow processes and respect peers and managers.

[60]Nevertheless, we remind ourselves that when considering whether the claimant genuinely held the belief that his disclosure was in the public interest we must consider what the claimant actually thought and we are satisfied from the perspective of the claimant’s mindset, he genuinely held that belief and we find that that belief was reasonable because it was based on what he saw and believed.

[61]We are satisfied the claimant was concerned that X was shouting and hitting himself which the claimant believed fell within the health and safety exemption of 43B(d) Employment Rights Act 1996 which is the section that says the health or safety of any individual has been, was being, or was likely to be endangered

[62]The disclosure was made to his employer, so it was protected.

[63]We find for the reasons above it was a protected and qualifying disclosure. Detriments

[64]The first detriment the claimant relied on was that the claimant was suspended on 1 November 2022 and unable to work until he received the case review meeting outcome on 17 April 2023.

[65]The Tribunal finds that the claimant was suspended on 1 November 2022, he was unable to work for the respondent and he was unable to work in the care sector until the case review outcome because he had been suspended from the casual work register which prevented him from working for the respondent and in the care sector in the period 22 November 2022 to April 2023 because of the preliminary DBS referral. There is no dispute that that was a detriment to the claimant.

[66]We turn to the key issue which is causation. What was the reason for the respondent suspending the claimant and what was the reason the claimant was unable to work in the care sector in that period. Was it in any sense connected to the second protected disclosure? We reminded ourselves the burden of proof is on the respondent.

[67]We find the claimant was suspended from the casual register because he was subjected to the respondent’s casual worker policy which expressly states at 3.1.5: “the respondent can suspend on a permanent or temporary basis for a number of reasons including a conduct or safeguarding issue”.

[68]We rely on the evidence of AB, KM and LW that taking a recording of a vulnerable person X who was not able to give consent and who was in distress at the time of the recording, was a conduct and a safeguarding issue. It was not disputed that X had learning difficulties, was mute and was a vulnerable person. In addition, taking photographs on his mobile phone of incident report forms which contained X’s personal information, which the claimant also accepted he had done, raised the same concerns.

[69]Doing these things was also potentially a breach of the respondent’s data protection policy, see page 246. We find the evidence to be overwhelming that breaches of these important policies was the real reason the claimant was suspended from the Casual Worker Register and reported to the DBS.

[70]In reaching this decision we have also taken into account that KM gave the claimant details of the appropriate Investigation and Compliance officer so he could report any whistleblowing concerns. That is not consistent with the employer acting to prevent a worker raising concerns. LW clarified on several occasions that she was dealing only with the investigation in relation to the safeguarding and data protection issue and she was not dealing with the whistleblowing concerns. Andrea Roach also directed the claimant through the appropriate channels to raise concerns. There is no suggestion he did so.

[71]For these reasons the claimant’s claim that detriment 1 occurred because he made a protected disclosure fails.

[72]We turn to detriment two. The claimant was given permission to amend this allegation of detriment at the outset of this hearing so that it read “in or around November 2022 the respondent, KM, wrote to the claimant telling him that he had been preliminarily referred to the DBS”. There was no dispute that this happened and that it was a detriment.

[73]Again, the question is about causation, why did it happen. We rely on our findings above that the only reason the respondent did this was because they reasonably believed there was a safeguarding or conduct issue to be investigated and they did this in accordance with their Casual Worker Policy at page 78 and also because a third party, X’s social worker, had asked them to make the referral because the social worker was concerned that the claimant might also be working in other care sector positions and therefore other vulnerable individuals may potentially be at risk. We find it was not connected to the disclosure made to AB, so that allegation fails.

[74]Detriment three was: the respondent’s HR informed the claimant that they would inform any prospective employer of the claimant that they had reported the claimant to the DBS, making him unemployable.

[75]Once again, it is agreed this was a detriment. The issue is causation. We find, relying on the evidence of KM that the respondent is legally obliged if they receive a reference request from an employer in a regulated sector to disclose that a referral had been made to the DBS as described in her statement. The claimant did not challenge that evidence. It was also explained to the claimant by CM on 13 January 2023 and in greater detail by AR on 22 February who also clarified that it would not be mentioned to any employer who was not a regulated activity provider.

[76]We find the reason why the respondent’s HR told the claimant that they would inform any prospective employer of the claimant that they had reported the claimant to the DBS was because, as a matter of law, that was a step they were legally obliged to take. It was not done because the claimant had made a protected disclosure to AB and so that allegation fails.

[77]Detriment number four: the respondent delayed their investigation taking 4.5 months which seriously affected the claimant’s mental health.

[78]As we stated in our finding of fact there is no dispute that the investigation took some time. The claimant was suspended on 1 November of 2022, LW completed her report in March 2023 and the outcome of the whole matter was concluded in mid-April of 2023.

[79]We accept the claimant suffered from depression and his mental health was affected by the investigation taking place, and possibly the delay. We find he suffered a detriment.

[80]However, we must turn to causation and the reason for the delay. We find the delay was initially caused by the claimant seeking a reasonable adjustment of communicating only by email in the investigation rather than being interviewed over the telephone. Quite reasonably the respondent had to make enquiries as to whether or not it was appropriate to grant the adjustment which they eventually did, but this took time.

[81]Another factor was that LW, the Investigating Officer had annual leave during the investigation period. The delay was also caused by the claimant who failed to answer simple clear questions put by LW in email and instead responded with unrelated questions of his own and extremely lengthy submission documents. The claimant conceded in cross examination that the investigation took longer than usual to complete because he did not answer questions. He said, “I agree it made it lengthy and harder for L and is part of why it took longer to complete the investigation”. He also accepted when it was put to him that the delay was because he did not co-operate with the investigation.

[82]Finally, we accepted Mr DK’s evidence that the delay in providing his outcome was due to the volume of correspondence sent by the claimant and this was not challenged by the claimant in cross examination.

[83]We find it was entirely for these reasons that there was a delay in the investigation, and it was not due to the claimant making disclosures to AB so that allegation fails.

[84]Detriment five: the respondent only gave the claimant one week to respond to the investigation.

[85]The Tribunal finds this allegation of detriment to be unclear and it appears to be factually incorrect.

[86]We find that when LW began her investigation of the claimant, she did not include any deadline at all. It was only after the claimant’s failure to reply to simple questions that she asked him to respond to some final questions within a deadline, and this was to enable her to complete her report and not for any other reason.

[87]In so far as the claimant is referring to the investigation report, it was sent to the claimant on 13 March and he was invited to a meeting on 21 March 2023. We find the key point here is that when he was invited, the letter expressly states: “you may request an alternative meeting date”. However the claimant did not ask for extra time by seeking alternative meeting date, nor did he say the timescale was too short.

[88]We rely on DK’s evidence to find the claimant told him he would not be attending the meeting, and, in any event, we find the claimant did submit a lengthy submission document by 20 March 2023. So in relation to this allegation, we find it is factually incorrect to say the respondent only gave one week to respond to the investigation and the detriment fails at that point, because there was no detriment.

[89]However, in case we are wrong about that, we turn to causation. We have explained why LW gave the deadline that she did. We find it was not because of any protected disclosure of the claimant to AB, it was because she was trying to get the claimant to respond to questions so she could complete her report. We rely on DK’s evidence that he simply fixed the meeting at a convenient suggested date and it was nothing to do with any protected disclosure to AB disclose, so that allegation also fails.

[90]Detriment number six: in or around April 2023 the respondent’s HR asked the claimant to sign a document which falsely stated he had deleted a recording and threatened to report the claimant to the police.

[91]Once again we found this allegation of detriment is not entirely factually accurate. We find that when KM wrote to the claimant she actually wrote on a number of dates and she asked him to confirm he had deleted everything he had recorded and to confirm he had permanently deleted all copies. See the form at page 365. We find the respondent was acting in good faith on information provided by AB- page 289- that the claimant had deleted the records .

[92]The claimant in this correspondence between pages 356 to 365 never suggested the reason why he was unwilling to sign the declaration was because AB had deleted the audio on his phone which is what he said at Tribunal. In fact, he stated in correspondence at the time that he was waiting for the investigation outcome before he signed anything.

[93]We find the respondent’s data protection policy, which is GO11 at page 246, in the definition about data processing expressly states: data processing continues until data has been securely destroyed. This was explained to the claimant by KM in correspondence on several occasions.

[94]So, what is the reason that the respondent asked the claimant to sign that document. We find the reason KM sent that letter requiring the claimant to sign to say he had deleted all the copies of the recording of the audio of the vulnerable person X on the claimant’s personal mobile phone was to comply with their data protection policy.

[95]Eventually, given the claimant’s failure to return the form despite repeated requests with no clear explanation as to why he was unwilling to return the form, she said she would need to take legal advice about a reference to the Police and Commissioners Office. The claimant perceived that as a threat and a detriment. The Tribunal accepts that the threat is capable of amounting to a detriment.

[96]The question for the Tribunal is causation, what was the reason for those letters to the claimant and the requirement for him to sign that form and that final letter threatening to take the matter further. Was it because the claimant made a protected disclosure to AB? The Tribunal finds it was not. We rely on the respondent’s explanation and find that KM, an HR professional, was trying to get the claimant to comply, not because of any disclosure of information that the claimant had made to AB but because she was trying to ensure compliance with the respondent’s data protection policy and the mention of taking legal advice at the end was not because the claimant had made a protected disclosure, it was because the claimant had repeatedly failed to confirm he had destroyed the audio and any copies. Thus that claim also fails.

[97]So, the claimant’s claims for public interest disclosure detriment fail for those reasons. Failure to make reasonable adjustments.

[98]Finally, the claimant’s claim for reasonable adjustments. The claimant did say, at the submission stage, after the evidence concluded, that he was not pursuing this claim. However, he did not formally withdraw it. The claimant is a litigant in person. We consider given the suggested withdrawal was at such a late stage, that the claimant is a litigant in person without a legal representative, it was appropriate and in the interests of justice to decide this claim.

[99]There is no dispute that the claimant was a disabled person by reason of depression at the material time. So the first issue is: what was the provision, criteria or practice “PCP” the claimant relies on. The claimant was relying on “providing a short response time for him to answer the allegations being investigated”.

[100]For some of the reasons we have already given we find this is factually incorrect and cannot amount to a PCP. The claimant was given initially no deadline, then the claimant was given numerous opportunities to respond, as he wanted to reply by email in writing to the allegations put to him. There were only a couple of occasions when the claimant was given a short time to respond. There was one occasion, right at the end of LW’s investigation where she gave him a short response time and that was because she was trying to complete matters and provide an investigation report.

[101]Although DK invited the claimant to a meeting within a relatively short timeframe, he offered the claimant the opportunity to vary the date of the meeting.

[102]Therefore, our finding is that the respondent did not apply the PCP and the claim fails at that stage.

[103]However, in case we are wrong about we turn to the next issue question which is: did the PCP put the claimant at a substantial disadvantage compared to someone without his disability. The claimant said that it did but it he did not clearly explain how his depression put him at a disadvantage in relation to providing a short time to give a response compared to someone not disabled.

[104]However assuming that it did put him at a disadvantage, the next question is: did the respondent know that by giving the claimant a short response time to reply to the investigation, they put the claimant at a disadvantage. The answer to that question is absolutely not.

[105]The claimant is an articulate, intelligent man. He is absolutely capable of asking for reasonable adjustment and indeed he did so : he asked to have the adjustment to reply in writing in the investigation, which was granted.

[106]The claimant accepted in cross examination that he never said to the respondent that he needed a reasonable adjustment of additional time to reply to questions because of his impairment of depression. Accordingly, the claim must also fail at this stage.

[107]Therefore, all claims fail.

[108]I apologise to the parties for the delay in providing these written reasons. This is due to the pressure of other judicial business and also annual leave. Approved by

The Law

[1]The claimant’s claim that he suffered six detriments for making two protected disclosures pursuant to Section 47B and Section 43B Employment Rights Act 1996 is not well founded and fails.

[2]The claimant’s claim for failure to make reasonable adjustments pursuant to Section 20 to 21 Equality Act 2010 is not well founded and fails. Approved by