YZ v Nelson Town Council and Mr Z Ali: 2403175/2020 and 2405381/2020

EMPLOYMENT TRIBUNALS

Case No 2403175/2020, 2405381/2020

Between

YZClaimant

Nelson Town Council and Mr Z AliRespondent

Before

Employment Judge Phil Allen

Mr D Flood (instructed by counsel) for claimant

Mrs K Skeaping (instructed by solicitor) for respondent

Date 15 November 2023

JUDGMENT

[1]The first respondent did breach the claimant’s contract of employment by dismissing her without notice on 23 April 2020. Her claim for breach of contract against the first respondent is well-founded.

[2]The first respondent did breach the claimant’s contract of employment by failing to pay the claimant in respect of annual leave and pension contributions that she would have accrued/been paid during her notice period of four weeks from 23 April 2023.

[3]The claim for ordinary unfairly dismissed was not well-founded and is dismissed, having not been pursued by the claimant.

[4]The complaint of unauthorised deduction from wages was not well-founded and is dismissed, having not been pursued by the claimant.

[5]The claimant did make a protected disclosure (or disclosures) in her formal grievance on 26 September 2019. The claimant did not make protected disclosures in the other documents relied upon.

[6]The complaint of being subjected to detriment for making a protected disclosure was not well-founded and is dismissed.

[7]The complaint of being automatically unfairly dismissed by reason of having made a protected disclosure was not well-founded and is dismissed.

[8]The claimant did do a protected act (or acts) in her formal grievance of 26 September 2019. The claimant did not do a protected act in the other documents relied upon.

[9]The complaint of victimisation was not well-founded and is dismissed.

REASONS

[1]The claimant was employed by the first respondent from 23 May 2018 as Town Clerk and Responsible Financial Officer. She was dismissed by the first respondent in a decision made at a full meeting of the Council on 21 April 2020. The claimant alleged that she made protected disclosures and that she was subjected to a detriment and/or dismissed because she had done so. She also alleged that she was treated unfavourably and/or dismissed because she had done a protected act (victimisation). She also claimed she was dismissed in breach of contract and not paid all that she was due as a result. The claimant brought claims against both the first respondent and the second respondent. The second respondent was/is the chair of the Council and the chair of the personnel committee. Claims and Issues

[2]A preliminary hearing (case management) was conducted in this case, on 24 May 2022. Appended to the case management order made following that hearing was the agreed list of issues (162i). At the start of this hearing, it was confirmed with the parties that those issues remained the ones which needed to be determined.

[3]The issues as recorded in that case management order are appended to this Judgment.

[4]When the hearing re-commenced, following reading, on the afternoon of the second day, the claimant’s counsel confirmed that the claimant was not pursuing the ordinary unfair dismissal claim. It was accordingly agreed that the Tribunal did not need to determine the issues set out at issue one of the agreed list of issues.

[5]The Tribunal also clarified with the claimant’s counsel on the afternoon of the second day, which of the claims were being pursed against the second respondent (as all the claims were pursued against the first respondent). He agreed that the claims for breach of contract (issue two), unlawful deductions from wages (issue three), and automatic unfair dismissal (issue six), were all claims which could only be pursued against the first respondent and not the second respondent. The remaining claims were being pursued against both respondents.

[6]The claimant’s counsel confirmed, during oral submissions on the ninth day, that the claimant was not pursuing her claim for unauthorised deductions from wages (issue three). In his written submissions, he also explained that it was not being submitted that it had not been reasonably practicable for the claimant to have submitted her claim for detriment in relation to the suspension within time, and therefore issues 8(b)(ii) and (iii) did not need to be determined by the Tribunal.

[7]During submissions it was confirmed by the representatives that the Tribunal was being asked to determine the breach of contract issues in principle, but the parties were not asking the Tribunal at this hearing to determine any loss if it was found that the respondent had breached the claimant’s contract of employment. The respondents’ representative accepted that the dismissal could only have been effective on 23 April 2020 when the claimant received the letter of dismissal. The parties envisaged that such loss would be capable of being agreed between the parties. The list of issues and the issues to be determined, related to liability only, it did not require the Tribunal to determine remedy. Anonymisation and restricted reporting order

[8]An anonymisation and restricted reporting order was made in this case by Employment Judge Ord at a hearing on 24 January 2022 (162a). As a result of that order, in the public records the claimant’s name is to be referred to as YZ. The order remained in force indefinitely.

[9]Pursuant to rules 50(1) and 3(b) of the Employment Tribunal rules of procedure 2013, it being in the interests of justice to do so, it was ordered that there shall be omitted or deleted from any document entered on the Register, or which otherwise forms part of the public record, including the Tribunal’s hearing lists, any identifying matter which is likely to lead members of the public to identify the following person: the claimant. That is why this Judgment refers to YZ and not the name of the claimant.

[10]In addition, pursuant to rules 50(1) and 29 of the Employment Tribunals rules of procedure 2013, it being in the interests of justice to do so, the order prohibited the publication in Great Britain, in respect of these proceedings, of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain which identified the claimant. “Identifying matter” in relation to a person means “any matter likely to lead members of the public to identify the complainant”. The publication of any identifying matter or its inclusion in a relevant programme is a criminal offence. Any person guilty of such an offence shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

[11]No application was made at this hearing to vary or revoke the order made, and therefore it remains in place and continues to apply to this Judgment and the outcome of the proceedings.

Procedure

[12]The claimant was represented by Mr Flood of counsel at the hearing. He was engaged on a direct access basis. Mrs Skeaping, solicitor, represented the respondents.

[13]The hearing was listed to be conducted entirely in person with both parties and all witnesses attending the Employment Tribunal in Manchester. Prior to the hearing, the respondents had requested that some witnesses be allowed to give evidence remotely by CVP. The claimant had opposed the application and that application was not advanced at the start of the hearing. However, unfortunately, the days upon which the case was heard coincided with some dates when it was not possible for the case to be heard in person because of industrial action by security staff which resulted in the closure of the building in which the Manchester Employment Tribunal is located. The Tribunal building was not able to be used on the fifth, sixth and eighth days of the hearing. At the start of the hearing, this issue was raised with the parties (the Tribunal not knowing, at that stage, whether the action would take place as planned). At that stage the parties agreed that the hearing could take place by CVP remote video technology on the days when it would otherwise not be possible for it to continue due to the closure of the building.

[14]On the second day of the hearing, the issue was re-visited with the parties. The claimant’s position was that at any time when it was possible for the hearing to be in-person she believed that it should be. The respondents’ position was that arrangements needed to be made for a number of witnesses, which included Councillors who gave their time voluntarily and had other jobs, and former Councillors. As that involved making arrangements about travel and availability for them to give evidence, that required decisions to be made as soon as possible. The Tribunal confirmed that it would consider the parties’ positions and make a decision overnight after the end of the second day (the Tribunal not wishing to further delay the start of the evidence whilst a decision was reached).

[15]On the third day the Tribunal confirmed its decision to the parties and briefly explained the reasons for it. The Tribunal understood the claimant’s preference for the hearing to be conducted in-person as much as was possible. The Tribunal also understood the respondents’ need to make advance arrangements for the attendance of witnesses. The situation being considered was not ideal, however the Tribunal was pleased that the hearing would be able to proceed on days when, without having the ability to conduct the hearing remotely, it would not have been possible to continue at all (and the hearing would not have been able to be completed in the time available). The Tribunal considered the overriding objective and the need to deal with cases fairly and justly, including so far as practicable ensuring the parties are on an equal footing, avoiding unnecessary formality and seeking flexibility in the proceedings, and saving expense. The Tribunal also considered that rule 46 provides that a hearing can be conducted, in part, by electronic means, provided that the Tribunal considered that it would be just and equitable to do so. The Tribunal also took into account the Presidential Practice Direction on remote and in-person hearings. The Tribunal highlighted to the parties that, since the early days of the Pandemic, Employment Tribunals have become very familiar with hearing evidence by video and is very used to doing so. On that basis,

[16]The Tribunal decided that, for practical reasons, it was preferable that the Tribunal did not return to being in-person for the single day sandwiched between industrial action days in week two. As the last day was likely to be submissions only (as it was), it was not as important for the final day to return to being in-person. In part the decision about the arrangements for week two was dictated by the best approach for logistical and practical arrangements. The Tribunal noted the absence of any specific reason from the claimant as to why hearing evidence remotely was of a particular disadvantage to her, and it noted that the claimant was professionally represented (which was a relevant factor). Had there not been the issue of industrial action and the building being closed, the Tribunal would have heard the case fully in-person, but in the unfortunate circumstances faced, the Tribunal took the view that the approach determined was the best and fairest approach (taking account of the parties’ views).

[17]The Tribunal was provided with a very substantial bundle of documents which was made up of four volumes and ultimately ran to 1745 numbered pages. There had been significant dispute between the parties about the content of the bundle and issues relating to documents. Those had been addressed and decided at preliminary hearings on 24 May 2022 (162i), 25 August 2022 (1739) and 13 February 2023 (1741). The claimant had prepared the final bundle of documents. Many of the pages were not ultimately considered by the Tribunal. The bundle was also provided electronically during the first week of the hearing, so that reference could be made to the electronic bundle whilst sitting remotely. Where a number is referred to in brackets, that is a reference to the page number in the bundle.

[18]During the claimant’s evidence, the claimant referred to one set of minutes which she said she had considered when preparing for the hearing, but which had not been included in the bundle. Those minutes were provided in advance of the third day and were added to the bundle. During the second respondent’s evidence it was identified that the email raising a complaint from Ms Doyle was not in the bundle. It was provided to the claimant’s counsel, who did not object to it being put before the Tribunal. It was provided to the Tribunal on the morning of the eighth day of hearing and added to the bundle.

[19]The Tribunal was provided with witness statements prepared by or on behalf of each of the witnesses from whom it heard. The claimant provided a very detailed statement, of 87 pages and 327 paragraphs. The Tribunal read each of the statements provided during the first day and the morning of the second day. The Tribunal also read many of the documents referred to in those statements. It was agreed by both representatives that it would not be possible for the Tribunal to read all of the documents referred to in the time available for reading, but the

[20]The Tribunal heard evidence from the claimant, who was cross examined by the respondents’ representative, before being asked questions by the Tribunal (and being re-examined). The claimant’s evidence was heard from the afternoon of the second day until the end of the fourth day.

[21]The following witnesses each gave evidence for the respondents, were cross examined by the claimant’s counsel, and (where required) were asked questions by the Tribunal and re-examined. The second respondent’s evidence was heard on days five and six and the start of day seven. All of the respondents’ other witnesses’ evidence was heard during day seven and the morning of day eight. The respondents’ witnesses were:a. The second respondent, a Councillor at the first respondent and the Chair of the Council and the chair of the personnel committee;

b. Nazeem Hayat, a former Councillor, vice-chair and member of the personnel committee;

c. Sheila Wicks, a Councillor and member of the personnel committee;

d. Mohammad Sufyaan Sarwar, a Councillor and chair of the disciplinary panel;

e. Russell Tennant, a former Councillor and chair of the grievance panel for the claimant’s first grievance; and

f. Nicholas Harbour, the Assistant Town Clerk.

[22]The Tribunal was provided by the respondents with a witness statement for Ali Baig, a Councillor and the chair of the panel which heard the claimant’s second, third and fourth grievances. The respondents made the decision not to call him to give evidence. He had recently commenced new employment and had difficulty in attending. His statement was read, but it was emphasised to the respondents’ representative and accepted by her, that less weight could be given to his evidence as he had not attended the hearing. In her submissions, the respondents’ representative explained why she believed that the statement should be considered. The Tribunal did consider it but gave it very little weight in the decision reached.

[23]After the evidence was heard, each of the parties was given the opportunity to make submissions. The parties, at their request, were given time to prepare for submissions after the evidence had concluded. Written submissions were provided by the parties by 11.30 am on the ninth day of hearing. At the request of the claimant’s representative, the parties made their oral submissions at 2 pm on the

[24]Judgment was reserved. After the days listed, the Tribunal also arranged an additional day in chambers to provide time to reach a decision. The Tribunal provides the Judgment and reasons outlined below.

[25]At the end of submissions, the claimant’s representative highlighted that a costs application made by the claimant earlier in the proceedings remained outstanding as it had previously been decided that the issue would be decided at the end of the case. This Tribunal did not hear any evidence or argument in relation to that issue and it remains to be determined.

Facts

[26]During the hearing the Tribunal heard a considerable amount of evidence. Much of the evidence heard is not recounted or addressed in this Judgment. The facts recorded in this Judgment focus upon those considered most relevant to the issues to be determined. Whilst the Tribunal considered all of the evidence heard, this was a case in which a large amount of the evidence heard was ultimately not considered to be relevant to the determination of the issues.

[27]The claimant worked for the first respondent from 23 May 2018. Her job title was Town Clerk and Responsible Financial Officer. The Tribunal was provided with her statement of terms and conditions of employment (201), which had been signed by both the claimant and the second respondent on 23 May 2018. The terms included a statement of the remuneration which applied at the time and stated that pay would be reviewed annually in April. There was no stated entitlement to a pay increase or to a job evaluation.

[28]The terms also included details of the claimant’s holiday entitlement but handwritten on the contract was something added by the claimant when she signed the document which said it was subject to clarification on annual leave entitlement. The holiday provisions stated that, if the claimant left employment during the holiday year, she would be paid for any accrued holiday for that year not taken by termination. It did not include any statement that the claimant could be required to take outstanding leave during any notice period. A contractual entitlement to pension contributions or to be a member of a relevant scheme was included and explained. The provision on termination of employment (204) did not include any entitlement to pay in lieu of notice. The claimant was entitled to four weeks’ notice in writing once she had completed the twenty-six-week probationary period.

[29]The first respondent is a Town Council. At the relevant time it had twenty-four elected councillors. At least some of those councillors changed in May 20019 as a result of an election. The vast majority (but not all) are members of the same political party. The Council also employs a very small number of employees. The second respondent is one of the councillors. At the material time he was also the Chair of the Council and the chair of the first respondent’s personnel committee.

[30]The first respondent has a code of conduct for members (310). That sets out the conduct expected of members when acting in that capacity, as required by section 27 of the Localism Act 2011.

[31]The Tribunal was also provided with the first respondent’s standing orders (255) and scheme of delegation (237). These had been adopted by the first respondent in June 2019 and were drafted/amended at that time by the claimant. As the claimant’s counsel emphasised during questions asked in cross-examination, the scheme stated that the Council could delegate powers to committees and those committees could themselves delegate to sub-committees. The powers to do so were limited as certain matters were reserved to the full Council. Committees were to be formed at the annual meeting. The ability to delegate was limited to the matters set out in the scheme of delegation and to those defined. The claimant’s contention was that there was no power within the scheme of delegation to appoint someone not on the relevant committee to a sub-committee of that committee. The standing committees included the personnel committee. The terms of reference for the personnel committee were set out in the scheme of delegation (248). In a specific section it was stated that the powers included: to appoint a grievance or disciplinary sub-committee of no less than three members; and to be responsible for any appeals. The scheme of delegation made no reference to the power to suspend (and therefore, as it was not delegated and based upon the principal that only the delegated powers had been delegated, only the full Council had the power to suspend).

[32]Included in the bundle were various policies which had been adopted by the first respondent. These included the dignity at work/bullying and harassment policy, the disciplinary rules and procedures, the equality inclusion and diversity policy, and the grievance procedure. Only very limited references were made to the details of these procedures during the hearing. Paragraph 2.1 of the dignity at work/bullying and harassment policy (318) related to the informal approach and said: “Anyone; employee, contractor member or visitor, who feels he or she is being bullied or harassed should try to resolve the problem informally, in the first instance. It may be sufficient to explain to the person(s) involved in the unwanted behaviour, or an intermediary, that their conduct is unacceptable, offensive or causing discomfort. Anyone concerned about being bullied or harassed is encouraged to maintain a journal or other record of the incidents”

[33]The claimant was recruited following competitive interview. The claimant was the highest performing candidate at interview. The Tribunal was shown the scoresheets for the claimant’s interview. The claimant scored highly. Those who interviewed the claimant included the second respondent, Mr Hayat, and Councillor Wicks. The claimant was scored particularly highly by the second respondent and Mr Hayat. The claimant was offered the job by the second respondent and accepted it. The claimant had been informed of the pay band for the role in the advert for the position. Whilst she had queried the responsibilities of the role, she had not questioned the pay for it. On recruitment, the claimant was paid within the band advertised. The claimant did not raise any issue regarding pay during the first six months of her employment.

[34]The Tribunal heard some evidence about the claimant’s predecessor. He had been paid a lower salary than the claimant. He had asked for higher pay, which had led to a decision being taken by the personnel committee for the role to have a job evaluation. A job evaluation was undertaken by Liberata. That had resulted in the role being re-graded and a higher salary being offered to him. He had resigned as the amount offered was not the amount he was seeking. The respondents’ witnesses gave evidence that he left on good terms; the claimant disputed that he did. The Tribunal was not taken to any document which recorded the actual job evaluation, the factors considered, or the basis for any decision. An email was provided in which an HR Manager of Liberata informed the predecessor of the outcome of the evaluation (359). The job advert to which the claimant respondent, used the grade and pay scale points which were confirmed in the email from Liberata following the job evaluation.

[35]It was the claimant’s evidence that a specific named Councillor informed her, around the time that she was recruited, that her job had been ear-marked for Mr Hanif, a Pendle Borough Councillor and Brierfield Town Councillor, and that it would not be long before the claimant was removed from her position. The claimant did not raise this issue with anyone until her email of 25 February 2020. She did not mention the issue to Mr Harbour when she worked with him. She did not name that specific Councillor as being the source of the information until her cross-examination during the Tribunal hearing. Councillor Tennant gave evidence that the specific Councillor had a history of mischief making. The Tribunal did not hear evidence from the specific Councillor. Mr Hanif has not been appointed by the first respondent.

[36]The Tribunal was provided with a job description for the claimant’s role (167). It stated that the claimant was accountable to the Chairman. It also stated that the role was accountable to the Council. There was no dispute that in practice the Chairman took responsibility for approving matters such as the Town Clerk’s annual leave and overtime. There was a difference of view about the extent to which the Town Clark genuinely reported to any one Councillor; it being the claimant’s case that the Chair was simply a member of the Council with a casting vote. The Tribunal was shown an exchange of emails between the claimant and the second respondent on 18 October 2018 in which the claimant asked to speak every week, if they did not meet in person each week (366).

[37]The claimant initially worked thirty hours per week. The hours were increased to thirty-four from 24 October 2018. That increase was decided by the personnel committee (207). The personnel committee was chaired by the second respondent. Mr Hayat was the deputy chair of the personnel committee.

[38]No issues arose during the claimant’s probationary period which were evidenced or documented. A probation review was undertaken on 28 November 2018 with the claimant, attended by the second respondent and Mr Hayat (209). The claimant said that she would be seeking a job evaluation in an email she sent ahead of the probationary review on 20 November 2018 (370), in which she said the evaluation should be carried out by the SLCC (the professional body for clerks). In the review, as recorded on the form, the claimant said that the Councillors were great to work with and “good working with Chairman”. The claimant’s work was recorded by the second respondent as being “thorough and detailed in all aspects”

[39]A personnel committee meeting took place on 28 November 2018. The Tribunal was provided with the minutes of the meeting (372). Reference was made to the claimant’s request for a job evaluation. The second respondent and Councillor Wicks were recorded as having proposed a motion which was resolved “That the pay arrangements are to continue as advertised. A job evaluation is not required however a review may take place in April 2019”. The notes also recorded that the claimant had returned to the meeting, been informed of the outcome, and had then explained the reasons why the job evaluation had been requested and why it was felt it should be carried out by the professional body for clerks. It was the evidence of the respondents’ witnesses, which the Tribunal accepted, that the request was rejected because a job evaluation had recently been undertaken for the role.

[40]The Tribunal heard evidence about the first respondent’s catering co-ordinator. He also requested that his role be job evaluated. There was a dispute between the parties about whether or not his request had initially been rejected by the personnel committee (no documents were provided that showed it had been). He raised the issue with the unity wellbeing committee. At a committee meeting on 23 January 2019, it was recommended that the first respondent’s HR consultants be instructed to carry out a job review for the post (387). The resolution was seconded by the second respondent. A job evaluation was undertaken. At the personnel committee meeting on 27 March 2019 the evaluation was considered, and the role holder’s contract changed as a result (429). The respondents’ witnesses highlighted the absence of a previous job evaluation as being the reason for the difference between that decision and the decision for the claimant’s role. The job evaluation resulted in a pay increase for the catering co-ordinator.

[41]The respondents’ witnesses attributed a change in the approach from the claimant towards the second respondent and others, to the rejection by the personnel committee of her request for job evaluation. It appeared to be suggested on behalf of the claimant that the disagreements arose from the claimant’s adherence to the rules which apply to the operation of the first respondent and the second respondent’s approach which was not as rule-bound. The Tribunal did not need to determine why the relationship between the claimant and the second respondent soured from late 2018 or early 2019, but it was clear that the relationship did deteriorate from the positive one outlined at the probationary review to that reflected in the documents exchanged in early 2019.

[42]On 10 January 2019 the second respondent sent the claimant an email about some issues which had been raised with him by the caretakers at the Unity Centre and suggested some steps which needed to be undertaken (376). The claimant responded by email on the following day. She was not happy about needing to respond by email. She emphasised that she was responsible for staff issues and, correctly, emphasised that it was not for an individual Councillor to get involved in staffing issues. She addressed the issues raised. She ended her email by saying

[43]On 14 January 2019 the claimant emailed the Councillors on the newsletter working group (383). She attached the draft content of the newsletter and asked for responses from the Councillors about changes required. She expressly stated that she would leave it with the second respondent to finalise the list of what would be included. The second respondent responded with his views on the content (it was his evidence that the newsletter was something which he considered to be of particular importance). Following a further exchange, the claimant emailed the second respondent on 14 January (380) and said “there appears to a lack of understanding and cohesion in working together. A dictorial approach from one individual councillor is counter-productive and it would go a long way to explain why there is a history of a high-turnover of clerks”. After a very reasonable response from the second respondent, the claimant further emailed later the same day and said (379) “As clerk I will explain your role as a councillor and chairman. Since the start of employment, you have micro-managed me which is not within your remit. I hope things are resolved, if not, then you will need to be aware that these issues will be brought to the attention of the Council as this is not the first incident where I have concerns about you”. Mr Hayat’s evidence was that the claimant’s email was unprofessional. The respondents’ representative said in submissions that this was another example of inappropriate and unprofessional communication from the claimant. The Tribunal agreed with that submission.

[44]On 15 February 2019 the claimant emailed the second respondent attaching a request for a job evaluation to be undertaken of her role by the SLCC (400). The letter attached, of the same date, explained that the claimant thought her salary was significantly low and said that the claimant thought it was undervalued (401). The claimant suggested that the previous job evaluation may have been undertaken using a generic template job description which had not taken into account the actual responsibilities of the post. The claimant summarised what she believed to be the post she was undertaking and emphasised what she belived to be her additional responsibilities. In the final paragraph of her letter, the claimant referred to the fact

[45]Attached to the letter of 15 February were various documents, including those provided by the National Association of Local Councils about the pay scales for equivalent grades, as well as documents about evaluations and appeals. Some example profiles were provided.

[46]On 16 February the second respondent responded to the claimant. He highlighted that, in the first instance, issues should be brought to the chair of the personnel committee as opposed to emailing all members of the committee (as the claimant had done) (419). The claimant responded on 18 February justifying her action (420). In doing so, the claimant said the following: “This matter was brought to your attention on two occasions. On the second occasion this was discussed with the Vice-Chair was present, therefore the informal approach and discussion was exhausted. I think you’ll agree I have a duty and obligation to bring this to the attention of the Personnel committee on a formal basis as the informal route has already been undertaken. Nelson Town Council is an equal opportunities employer and I trust that I will be given an equal opportunity.”

[47]The second respondent emailed on 22 February seeking clarification about where the committee stood in placing the request on the agenda in the light of a standing order which said that a resolution could only be considered again after six months (421). The claimant responded on 26 February explaining why she believed it could be (422) and the second respondent responded, thanking the claimant for her clarification.

[48]The claimant requested that an assistant Town Clerk be recruited. An Assistant Town Clerk was recruited. The recruit, Mr Harbour, had seventeen-years’ experience of working in local government (albeit not in a clerk role). The claimant and Mr Harbour had a close working relationship. The recruitment of the assistant was approved by either the personnel committee or the full Council. The Tribunal heard some evidence about the recruitment process. One Councillor had left the meeting to decide who should be appointed, before the final decision had been made. He raised a complaint when he identified that the candidate he thought was to be offered the role, was not appointed. The complaint was discussed at a meeting of the personnel committee. As a result, in a relatively short period of time, the claimant had been recruited on a higher rate of pay than had been paid to her predecessor (at the correct evaluated rate), her hours had been increased, and a deputy had been

[49]In early 2019 the first respondent appointed Peninsula as its advisers on HR matters. The respondents’ witnesses suggested that it had been the claimant who had promoted Peninsula as her preferred provider. The claimant emphasised that Peninsula had been appointed following an appropriate procurement process and had been successful primarily due to cost. As the first respondent did not have any HR function it was clear from the evidence that it relied heavily on Peninsula for advice. The second respondent and Mr Harbour in particular, placed particular emphasis on the fact that they acted on Peninsula’s advice throughout (or at least up until 21 April 2020 meeting). In her submissions, the respondents’ representative submitted that whilst it may not have been great advice that was given, nonetheless the first respondent took advice and followed it nevertheless.

[50]The personnel committee considered the claimant’s request for a job evaluation on 27 March 2019 (432). The minutes recorded that the members felt that the item should not have been brought to the meeting within six months of the previous decision, but the request was considered in any event. The minutes recorded that the members were happy with the status quo and a job evaluation was not required at the time. The minutes also recorded that the members took into account that, unlike the chef coordinator role which had not had a job evaluation, the claimant’s role had already undergone a job evaluation before being advertised. The members of the committee did agree to offer the claimant two incremental increases to her salary on 1 April 2019 (as opposed to one) with no further increment until 31 March 2021. This was proposed by Mr Hayat and seconded by the second respondent. Following the meeting, the claimant did not agree to the change proposed, and therefore the change/increase was not implemented. When rejecting the proposal on 15 April 2019 (437), the claimant informed the second respondent that she would be raising a grievance and would submit this to the newly elected personnel committee in May.

[51]As a result of Council elections in May 2019 the make up of the Council and the personnel committee changed. Importantly, for the purposes of this case, the personnel committee gained two new members who had not been a part of the decisions made prior to their appointment. The second respondent remained both the Chair of the Council and the chair of the personnel committee.

[52]On 28 May 2019 the claimant submitted a formal grievance relating to the job evaluation (445). The letter was addressed to the grievance panel of the personnel committee. The letter started by stating that the letter and the attached correspondence were the formal grievance. The attached correspondent included the claimant’s previous request for a job evaluation, the documents she had attached to that request, and the exchanges of emails which had resulted including the claimant’s email of 18 February (420) (addressed at paragraph 46).

[53]The letter provided further information about why the claimant contended that the job was underpaid and why she believed that the previous job evaluation had not included a full appraisal of the job role. The claimant highlighted that the responsibilities of the role would be greater if further services were devolved. She

[54]Notably the grievance did not expressly refer to discrimination, sex, equal pay, or the Equality Act 2010. It was Mr Hayat’s evidence that he understood nothing in the grievance to be an allegation of discrimination. The second respondent’s evidence was that he did not interpret anything in the letter to be an allegation of discrimination. In her witness statement, the claimant did not describe any public interest which she believed she was asserting in writing the letter and in relation to the content of it.

[55]In the evidence which the claimant gave in her lengthy and detailed witness statement, at paragraph 50, the claimant quoted from her grievance letter. She provided the quote in italics and with quotation marks, which clearly suggested that what she included was a direct quote from the letter. What she quoted was almost verbatim what had been said in the grievance of 28 May 2019. What she purported to quote however included the following (with our emphasis added): “… is not a fair and consistent approach taken by the employer in comparison to a male employee, the Catering Co-Ordinator …”

[56]The words emphasised were not present in the grievance letter from which the quote was taken but were included in the extract apparently quoted in the witness statement.

[57]When the claimant was asked about this in cross-examination, she initially suggested that what she was quoting was an alternative document. Neither the

[58]The Tribunal found that the inclusion of the additional words highlighted in the witness statement was a deliberate attempt by the claimant to mislead the Tribunal. The Tribunal did not accept the explanation that the inclusion of the additional words highlighted was genuinely an oversight. The Tribunal did not accept that including additional words (which appeared to make the claimant’s case stronger), could be (or was) genuinely explainable as an oversight. Had such words been included in the grievance letter it would have been of considerable importance in determining whether the grievance was a protected act or a protected disclosure. The claimant was an intelligent individual, who was aware of the significance of the words quoted in her statement. She was also someone who it was clear from her evidence had an eye for detail, as one would expect of someone who had carried out her role. In the view of the Tribunal, the inclusion of the additional words was a deliberate attempt to mislead, and it found that the claimant’s attempt to do so fundamentally undermined the claimant’s credibility. As a result, where there was any dispute between the evidence of the claimant and the evidence of another witness, the Tribunal preferred the evidence of the other witness. The Tribunal had no such equivalent reason to doubt or disbelieve the evidence of any other witness (including the second respondent).

[59]The newly constituted personnel committee met on 29 May 2019. A grievance sub-committee was appointed to hear the claimant’s grievance (450). The sub-committee appointed was made up of the second respondent and Councillors Latif and Hussain. In cross-examination the second respondent accepted that he should not have been part of the sub-committee appointed to hear the grievance. Following objections made by the claimant and her trade union representative on 28 August 2019, at a meeting they attended, the panel to determine the grievance was changed and the second respondent ceased to be part of it. During cross-examination, the claimant suggested that this meeting was one of the reasons why she was subsequently suspended.

[60]The Tribunal was shown an exchange of emails in July 2019 regarding the claimant’s overtime claims (463). It was not in dispute that the claimant was responsible for approving overtime claimed by all employees except herself. She accepted that she required those claiming overtime to produce appropriate evidence/information when overtime was claimed. The second respondent emailed questioning the level of overtime being claimed by the claimant following the recruitment of the Assistant Town Clerk. The claimant responded in forthright terms. She stated that she would have expected more support from the second respondent. She also stated that the first respondent should as a matter of good practice treat all employees the same, appearing to suggest that was not the case as she personally had allowed the caretaker to accrue overtime and have it authorised “in good faith”.

[61]On 22 August 2019 the Localities and Policy Manager of Pendle Borough Council emailed the claimant, the second respondent and others, regarding the transfer of CCTV to Town Councils. She sought availability to meet. The second respondent responded, and a meeting was arranged. The claimant did not respond, nor did she respond to say that she could not make the date and time arranged. The time arranged was a time when the claimant would normally have been available for work; but was not on this occasion because (unbeknownst to the first or second respondent) she was due to attend a speed awareness course. On 3 September the second respondent met with the Pendle Borough Council manager. The second respondent was accompanied by the Assistant Town Clerk, Mr Harbour.

[62]At 2.16 pm on 3 September the claimant emailed the manager at Pendle Borough Council. She did not copy her email to the second respondent (or any other employee or officer of the first respondent). She referred to the meeting which had taken place and said: “Just to make you aware, where Nelson TC is concerned, meetings should not take place with the Chairman alone regarding official Council business unless the Chairman has been appointed by full Council to take part in the meeting. I’m not saying its anyone’s fault here, but it just clears up the working practices and roles and expectations of individuals”.

[63]The second respondent became aware of the claimant’s email when it was forwarded to him by the Pendle Borough Council manager. His evidence was that he was extremely embarrassed with what the claimant had done, as it was rude and condescending to a Borough Council employee and did not reflect the first respondent’s values.

[64]On 27 August 2019 the second respondent emailed Inspector Cartwright inviting him to attend the next Council meeting and requested that he provide an update on the latest crime figures. In evidence the second respondent emphasised why the crime figures were of particular importance at the time. When he requested details of the meeting, the second respondent asked the claimant to provide Inspector Cartwright with the details of the next meeting. In her email in response on 3 September (671), addressed to Inspector Cartwright, the claimant said: “it’s not quite clear if you will be attending our next Town Council meeting scheduled for … - please can you clarify? Normally it’s the Town Council that would resolve a formal invitation to the police and would request attendance at Council meetings via the Town Clerk. I apologise for the informal approach our Chairman has taken which is outside of his remit”

[65]The Inspector responded with an email in which he apologised. The second respondent’s evidence was that it was obvious from the response that Inspector Cartwright had felt embarrassed. The second respondent described the claimant’s behaviour as damaging and wholly unprofessional. In cross-examination it was put to the second respondent that it was not for him to invite someone to the Council meeting. The second respondent’s evidence was that anybody could invite someone to the Council’s public meetings and that he was able (and did) ask others to speak as part of his Chairman’s opening remarks. Irrespective of the relevant approach to

[66]It was the second respondent’s evidence that by sending these two emails, the claimant had sought to undermine him to third party stakeholders. The Tribunal understood why the second respondent formed that view. It was the second respondent’s evidence that things came to a head for him with these emails, and the Tribunal understood why the second respondent would have felt that was the case, and accepted his evidence that the two email exchanges were the reasons why he considered matters in that way at the time.

[67]On 4 September 2019 the personnel committee passed a resolution which appointed to the grievance panel for the claimant’s first grievance, the two members of the committee who had not been members of the committee at the time of the decision to refuse the claimant’s request for a job evaluation, and Councillor Ul-Haq who was not a member of the personnel committee. It was the claimant’s case that it was outside the committee’s powers to appoint someone to a sub-committee who was not a member of the committee. That could only be done by the full Council.

[68]On 9 September 2019 the second respondent asked the claimant to take the steps required to call an extraordinary personnel committee meeting. The claimant responded asking if the confidential employment matter for which the meeting was being called related to her? It was confirmed that it did. Mr Harbour undertook the arrangements for the meeting.

[69]On 10 September 2019 the claimant wrote a letter to Councillors Hannah-Wood and Tennant (510). Neither were members of the personnel committee. They were newly appointed Councillors. They did not, initially, provide a copy of the letter to anyone else. With the claimant’s agreement, they forwarded the claimant’s letter to Councillor Blackburn. Whilst the letter was provided to others later in the process, as at 16/18 September 2019 (when the decision to suspend the claimant was made and the suspension undertaken), there was no evidence that other Councillors were aware of the claimant’s letter.

[70]In her letter, the claimant stated that she was writing to express her concerns about the behaviour of the second respondent “which I interpret as bullying and harassment”. She went on to allege that the second respondent had abused his position and exerted his authority over the claimant by means of micro-management and getting involved in the day-to-day operation of the Council. She explained that this was not the role of the Chairman and she contended that, in effect, he was acting as both clerk and Councillor. She went on to say “My role is to service the committees and implement the decisions of the Council, my role is not to carry out Councillor Ali’s instructions on operational matters as these are determined by Council and committees which all have delegated powers in accordance with the LGA 1972”. In her letter she then went on to detail occasions of what she believed were examples of bullying behaviour towards the claimant.

[71]At the end of her letter the claimant stated that the letter should be accepted as an informal approach in accordance with point 2.1 of the Bullying and Harassment Policy. Prior to that she made two specific requests:

[72]In her witness statement, the claimant explained this letter as saying that she had stated that she did not want to resort to formal complaints, but she knew that she could not continue to work in these conditions as it had led to a lack of confidence, impacted on her work performance and health. She said she asked for an intervention before matters escalated. The claimant did not describe any public interest which she believed in making the disclosures.

[73]On 16 September 2019 a member of the public emailed the first respondent with a complaint about the claimant’s conduct towards her when she had visited Unity Hall (675). The complaint described the claimant (albeit not by name) as having been very rude and having an abrupt tone and mannerisms which shocked her. The member of the public referred to her child as having been present.

[74]At an extraordinary meeting of the personnel committee on 16 September 2019 the decision was made to investigate various matters relating to the claimant and to suspend the claimant, if Peninsula advised the first respondent to do so (586). The concerns and complaints raised included (amongst other things) the emails referred to and the complaint from the member of the public. The second respondent was identified as the person to action contact with Peninsula to seek advice on the legality of implementing a suspension of the Town Clerk whilst the investigation was ongoing.

[75]A suspension letter was prepared with the assistance of Peninsula. The letter was dated 18 September and was handed to the claimant by Mr Hyatt and Councillor Wicks when they met with the claimant on that day (528). In relation to the allegations, the letter said only that the investigation was following allegations of professional conduct concerns, it did not provide any description of the allegations which would have enabled the claimant to understand what the issues were. The letter also said: “During this suspension you must refrain from attending the workplace, whether during or outside of normal working hours, unless it has been specifically requested by the Town Council or otherwise authorised in advance. You are also instructed not to contact or attempt to contact or influence anyone connected with the investigation, including employees, contractors and elected members of the Town Council in any way to discuss this matter with any employee, contractor, elected members of the Town Council or clients of ours. We are duty bound to inform you that a failure to abide by this instruction would be treated as an act of misconduct”

[76]The Tribunal heard different interpretations of the meaning of these words from different witnesses. It would have been better and in accordance with best

[77]The claimant was suspended by Mr Hayat and Councillor Wicks on 18 September. Mr Harbour was present and took notes. The typed notes which recorded what occurred were provided to the Tribunal. The notes recorded that the length of the process of suspension took from 11 am until 11.40. The Town Clerk questioned whether the personnel committee had the power to suspend her (in the Tribunal hearing Mr Harbour accepted that it did not, albeit the notes do not record the claimant as having provided the same detailed and cogent explanation of why this was the case as her representative provided in the Tribunal hearing). The claimant referred to the complaint she had recently submitted and stated that she felt bullied and harassed (the details of the complaint are not recorded as having been referred to). The letter to which the claimant referred was not something of which Mr Hayat and Councillor Wicks were aware at the time. The claimant did not wish to accept the letter of suspension, said it did not contain specific enough reasons, and refused to accept the suspension whilst requesting an intervention from the full Council. Mr Hayat left the room, called Peninsula, and received (incorrect) advice from them that the personnel committee was able to suspend the claimant – which he informed the claimant. After the claimant said that she would not leave the building unless Mr Hayat again rang Peninsula and asked that they name the alleged charges against her, he informed her that he would call the Police. The claimant then agreed to leave the building. During or following the discussion, the claimant used the computer in the office and deleted a number of files (which she said contained personal information), and she removed a file of documents at the same time as removing her personal items. It was the claimant’s evidence that Mr Harbour checked the documents; Mr Harbour’s evidence was that he checked some of them (and those appeared to be personal), but he was unable to check them all.

[78]Mr Hayat in his evidence described the claimant as disruptive, aggressive, extremely angry, and quite intimidating. Ms Wicks described the claimant’s behaviour as being extremely concerning and behaviour she has never experienced before or since. She said the claimant was extremely angry and that she behaved in an aggressive and intimidating manner.

[79]Following the claimant’s suspension, the claimant exchanged text messages with Mr Harbour (528). She asked him to ring her. She told him not to trust anyone. She told him to change the passwords on the accounts and not to give them to the second respondent, as well as telling him not to provide the second respondent with the number for the IT company. She told him to delete a file. Mr Harbour did so. In his witness statement, Mr Harbour apologised for displaying extremely poor judgement after the claimant’s suspension; but emphasised that he felt pressured by the claimant to do what she told him.

[80]On 23 September the claimant was sent a letter inviting her to an investigation meeting on 30 September (531). The letter referred only to the allegation being of alleged unprofessional conduct. Throughout the internal procedures the claimant

[81]On 26 September 2019 the claimant sent an email to Councillors W Blackburn, Hannah-Wood and Tennant, which was headed “confidential formal grievance” (548). The covering email explained it was the claimant’s formal grievance for the recipients’ attention. The email said that it was confidential and for the recipients only, but a separate email had been sent to the second respondent.

[82]The formal grievance of 26 September was a very lengthy document which contained a large number of complaints from the claimant (550). It referred to the informal complaint previously sent to Councillors Hannah-Wood and Tennant on 10 September. It said the claimant was escalating the matter to a formal grievance. In the letter the claimant recounted what had occurred when she had been suspended on 18 September and concluded it by saying: “This is in itself an example of bullying as the two councillors involved were abusing their power of authority to have me suspended and instantly removed from the premises without providing any reasons or justification for my suspension. This is in my opinion an illegal suspension”.

[83]The claimant listed four numbered matters which she said her grievance related to. These were: “1. Failure to investigate the informal complaint relating to bullying and harassment. 2. Failure to deal with my grievance relating to my pay in a timely manner and having a grievance hearing panel with Cllrs Zafar Ali and Naseem Hayat present on 28 August 2019, both councillors that had a conflict of interest and were not impartial, which then led to an adjournment of the hearing. 3. Failure to follow Council procedures in the appointment of a fresh grievance committee to ensure my grievance is dealt with in a fair and transparent manner despite receiving advice and guidance from me in my professional capacity as Clerk… 4. Suspension by the Personnel Committee and any disciplinary action that may follow. I believe that my suspension is a direct result of a personal vendetta by the Chair of the Council and Personnel Committee/Council…”

[84]In the next paragraph of the 26 September grievance (551) the claimant went on to address the second respondent and stated that he: “has bullied me and exerted his authority over me. I believe that his overbearing supervision/micromanagement underpinned by his bullying/harassment; abuse of authority is due to me being an Asian female and him being an Asian Male. In the Asian culture males are regarded as dominating and overpowering and Asian women are regarded as being

[85]As the claims being heard were for detriment/dismissal as a result of having made a public interest disclosure and victimisation (and not a claim for discrimination on grounds of race, sex and/or age), the Tribunal did not need to address or determine what the claimant had alleged in this paragraph of her letter. The respondents’ witnesses denied such discrimination.

[86]In the remainder of the grievance letter the claimant detailed specific incidents which she contended supported her argument. It is not necessary to re-produce those allegations in this Judgment, but what the claimant alleged included the following statements: “I witnessed discrimination against the candidates who applied … and preferential treatment given to one Asian male candidate” “This is an example of race discrimination” “This in contrast to the handling of my suspension/investigation is an example of what I interpret as sex discrimination” “This was preferential treatment of a male employee” “These are examples as what I interpret as sex discrimination where one employee is given preferential treatment over the other” “I have found this comment to be discriminatory” “… is another example of sex discrimination”

[87]One of the allegations was set out at paragraph (l) (555) and related to the highways budget. The claimant referred to the significant sum of money involved and her account was that she spoken in response to a motion at the September meeting and advised that the first respondent could not make the relevant decision at the time. She went on to allege: “There were no official reports or business case from the partner organisations and the business that Councillor Ali wanted to move was not part of his motion to full Council. It is my belief that this is one of the reasons that Councillor Ali has got me suspended and out of the way to enable him to push through this money next month at full Council. The £200K is just under 50% of the precept for Nelson Town Council and without my presence at next month’s meeting, the Council under Councillor Ali’s chairmanship will be more than likely push through the money without due considerations or compliance of the Councils Financial regulations”

[88]The Tribunal heard absolutely no evidence whatsoever about the substance of what the claimant alleged in that part of the letter and certainly no evidence which suggested that the claimant’s concerns were correct. The paragraph is recorded in

[89]At the end of her grievance letter, the claimant set out the outcomes which she was seeking from her grievance (555). She sought an independent investigation into the alleged bullying and harassment of the claimant by the second respondent (including the involvement of the personnel committee members). In two sub-points she focused this on: the contention that the suspension was unjustified and should be lifted; and that the investigation into the claimant should cease. She asked for her grievance relating to pay to be heard as soon as possible by a fresh grievance committee.

[90]In her witness statement, the claimant detailed the grievance which she had raised and referred to the fact that on the same day she had emailed the second respondent as a courtesy to inform him that she had submitted the grievance. The claimant did not give evidence about what she believed the grievance showed (outside of it being a grievance), including whether she believed that the information she was disclosing was in the public interest or why she believed it was (if she did).

[91]It is not necessary in this Judgment to include full details of the grievance and disciplinary procedures followed as, save for the outcome itself in the disciplinary process, those procedures were not contended to be detriments or acts of victimisation. The full disciplinary allegations were set out in a letter to the claimant on 1 October 2019 (571). The disciplinary investigation meeting with the claimant took place on 10 October 2019, conducted by Ms Hart of Face2Face (an organisation linked with Peninsula). She produced a lengthy report which detailed her investigation. Different panels were arranged to consider the grievances split between: her first grievance; and the other three grievances which she brought. Those panels were, in the claimant’s contention, not correctly constituted as the members were not appointed by the full Council and were not members of the personnel committee. They did consist of members who were not those about whom the grievances were raised. The claimant’s first grievance was heard by Councillors Tennant, W Blackburn and Pearson-Asher on 27 January, 24 February, 26 February and 12 March 2020 and was not upheld (confirmed in a letter of 13 March 2020 (1056)). The claimant’s second, third and fourth grievances were heard together by a panel comprising Councillors Baig, L Blackburn and Ul-Haq on 3 March 2020 and was not upheld (in a letter sent under cover of an email on 12 March 2020 (1025/1005).

[92]The grievance meeting took place on 27 January 2020. The meeting was also attended by Ms Jessica Doyle from Pendle Borough Council to take notes. Ms Doyle was not an employee of the second respondent, but she assisted the second respondent on occasion (the claimant said a rare occasion) to assist with things such as note taking. During the meeting the claimant asked if it was being recorded and said she had no confidence in the notes being taken. Ms Doyle spoke to the panel after the meeting about the claimant. Councillor Tennant’s evidence was that the

[93]During cross-examination Mr Tennant was challenged on his evidence that he did not read the grievance raised as alleging discrimination. He was taken to the email which had formed part of the appended papers (420) which referenced equal opportunities. He emphasised his experience and training within his job of equality and diversity. It was his evidence that he had taken the reference to be an assertion that the respondent had a duty to be fair to everyone, he said he had not taken it as a specific complaint of discrimination.

[94]On 29 February 2020 the claimant emailed all Councillors (846). The email was headed “Notification of a Formal Grievance Submitted 25th February 2020”. It began by stating that the first respondent as a corporate body was responsible in law as an employer for ensuring that there was a duty of care towards its employees. It emphasised that councillors should be complying with the Nolan Principals (which were set out in some detail at the end of the email) and should be upholding the ethical standards expected of a government organisation. It stated that it was formal notification of a grievance submitted to Mr Harbour on 25 February 2020 and explained that the grievance submitted was the subject of the grievance hearing on 24 February heard by Councillors Tennant, W Blackburn and Pearson-Asher. It stated the claimant had taken legal advice and the new/third grievance should be adjourned to enable a full investigation to take place.

[95]In a lengthy paragraph, the claimant went on to address an email from Mr Harbour of 21 February and the fact that he had not disclosed to the claimant who was the first respondent’s contact with Peninsula. At the end of that paragraph the claimant said the following (with the element in bold reproducing what was in bold in the claimant’s email): “Nick may not wish to disclose the information to me, however members should be asking questions of Nelson Town Council as to who is acting as ‘the Council’ or is the debacle being orchestrated by the one individual who is the subject of gross misconduct allegations towards me that are likely to result in my dismissal. As I was notified around the time, just after my appointment this job was and is still earmarked for Pendle Borough Councillor and Brierfield Town Councillor, Mohammed Hanif and that it would not be long before I am removed from my position, a situation that has been manufactured by certain individuals and is being put into practice”

[96]There was no dispute that the individual referred to in the email was the second respondent. The allegation made in bold is the allegation addressed at paragraph 35 above of this Judgment. When asked, the claimant confirmed in cross-examination that the part of the email of 29 February upon which she was relying as being a protected disclosure was the part she had put in bold.

[97]In the email of 29 February, the claimant went on to address the minutes of the personnel committee meeting of 2 March 2020 and to state that the personnel

[98]In her witness statement, in relation to the 29 February 2020 email, the claimant explained that she had emailed all twenty-four members of the Town Council to notify them about the claimant’s third grievance which she had submitted on 25 February “and to ask for an intervention and to heard as it was wrong what was happening to me”. She described the content of the email, but she did not give evidence about what she believed that it showed, including whether she believed that the information she was disclosing was in the public interest or why she believed it was (if she did).

[99]On 29 February Councillor Tennant emailed a number of other Councillors, confirmed that several of them would have received emails from the claimant, and asked them not to respond, as various sub-committees were looking at different issues (848).

[100]On 1 March the claimant further emailed all Councillors (851). The content of the email was addressed to Mr Harbour only, but the email was cc’ed to all of the Councillors. The claimant attached a further grievance relating to a GDPR issue and the first respondent’s inability to locate the claimant’s personnel file (852).

[101]On 12 March the claimant emailed Mr Harbour (1019) (someone who was her direct report). The email followed an email exchange in which the claimant had asked about the outcome to the grievance. In her email the claimant said “With disappointment, your involvement in this matter is being noted. I look forward to receiving the outcome letter and liaising with you on future correspondence when we will be able to ascertain how you’ve been handling these employment matters with integrity, impartiality and above all transparency”. It was Mr Harbour’s evidence that he felt that the claimant was questioning his professional integrity and becoming personal and insulting him.

[102]The claimant’s disciplinary hearing took place on 12 March 2020. It was heard by Councillors Sarwar, Ahmed and Holland. The investigator set out the details of the investigation (her report having been provided to the attendees prior to the meeting). The transcript of the meeting was provided to the Tribunal (1067). Mr Sarwar’s evidence was that the claimant’s representative, Mr Gardner, was particularly confrontational and unhelpful. He also said that “The claimant and her rep were arrogant and condescending throughout this meeting and treated it as a waste of time saying our decisions had already been made”. He emphasised that the panel were genuinely neutral and had not prejudged the matter at all. The panel decided that they needed more time to reach a decision.

[103]On 24 March 2020 the claimant emailed Mr Harbour (1115). In her email the claimant asked about who was running her employment case with Peninsula. She went on to say: “Should this matter now proceed to an Employment Tribunal, then am sure you will be invited to confirm the questions on oath that you are refusing to answer, and the truth will eventually come out. On a personal note, Nick, I

[104]It was Mr Harbour’s evidence that what the claimant said about him in this email was the final straw for him with regard to the claimant’s behaviour towards him. It was his evidence that this led to him writing to the personnel committee to make a formal complaint on 4 April. The Tribunal understood why that was the case.

[105]On 2 April Peninsula advised Mr Harbour that they would not advise the first respondent to dismiss the claimant (1154). It was Councillor Sarwar’s evidence that the disciplinary panel felt obligated to follow Peninsula’s advice.

[106]On 4 April 2020 Mr Harbour wrote to the members of the personnel committee raising a complaint about the claimant (1155). That complaint followed the emails referred to and quoted from the email of 24 March 2020. Mr Harbour said that he read the email as a blatant attempt to intimidate him. Mr Harbour went on to say: “The then personal attack (note she even used the word personal) was for me the most disappointing aspect of the entire thing. She’s right in stating that I have worked in local government for a number of years (17 to be exact) and this is the first time I have ever had my honesty and integrity questioned by anyone… To have my integrity questioned when I’ve been trying to manage things in the office in the 25 hours I do in a week until this matter is resolved is extremely frustrating, in what has been a very stressful few months for me already. Whilst I appreciate it must be difficult for [YZ] whilst suspended, to look to point the finger at me and suggest wrongdoing is not something I am prepared to put up with and have recently been considering leaving my position within the Town Council”

[107]The disciplinary outcome was that the claimant was given a written warning (not a final written warning as was asserted on occasion during the hearing). A letter explaining the decision was prepared and sent to the claimant (1163). The letter, dated 14 April, did not uphold the majority of the allegations. The allegation that the claimant had refused to follow a reasonable management instruction when she refused to leave the premises on 17 September 2019 when instructed to do so as a result of her suspension, was upheld. The panel also upheld the allegation that the claimant had breached the terms and conditions of her suspension by contacting members of the Council despite being instructed not to do so. That latter allegation was stated to be based upon the report received and the claimant’s own testimony at the disciplinary meeting.

[108]On 14 April 2020 Ms Doyle of Pendle Borough Council emailed the second respondent stating that she wished to make him aware of an incident involving the claimant which she said had caused her a great deal of upset (1745). She explained what had occurred at the grievance hearing on 27 January when she had taken notes and in which the claimant had stated she had no confidence in the notes being taken. Ms Doyle stated that she had been surprised and humiliated by the claimant’s

[109]An extraordinary meeting of the Council took place in the evening of 14 April 2020 by Zoom. It lasted two hours and ten minutes. It was attended by fifteen Councillors, including: the second respondent; Councillor Baig; Councillor Sarwar; and Councillor Tennant. Other matters were addressed including the Covid-19 Pandemic, but it was the second respondent’s evidence that the majority of the time spent in the meeting was involved in discussing the claimant. It was also his evidence that most Councillors involved in the meeting took an active part in the discussion (Mr Harbour also confirmed that was his recollection in his witness statement). The minutes recorded at some length the matters discussed regarding the claimant (1173). When asked about the meeting, the respondents’ witnesses’ recollections of exactly what occurred were, almost entirely, based upon the minutes.

[110]The second respondent gave an update on the position. The four grievances raised by the claimant were referred to and it was confirmed that the grievances had been heard and none had been upheld. The disciplinary outcome was also stated. The minutes recorded that a number of members of the Council felt that the disciplinary decision was lenient. The members were then asked to consider if there was a working relationship between the Town Clerk, the members of the Council and the Council staff. The minutes recorded some of the things discussed.

[111]A motion was proposed by Councillor Latif and seconded by Councillor Hannah-Wood which resolved to ask the claimant to respond to three questions by Monday 20 April. The questions asked related to contact with members, the allegation that Councillors had been conspiring to remove the claimant from post, and the correspondence with staff members. The minutes recorded that the Council was keen to allow the claimant a chance to respond to the questions asked given the serious nature of the allegations, but the timing of a response was requested so that it could be reviewed before the next extraordinary full Council meeting arranged for 21 April. In the second respondent’s witness statement he explained that the Council was conscious that the claimant was approaching two years continuous service and therefore if the Council was to take any action to bring her employment to an end, they could not delay matters.

[112]In his evidence about the decision on 14 April, Councillor Tennant emphasised the complaint made by Ms Doyle as he had spoken about it (having been present at the meeting). It was his evidence that he could fully understand why Ms Doyle felt aggrieved by it. He also emphasised that the Council was made aware of Mr Harbour’s complaint. He said that he believed that many Councillors, including himself, were extremely shocked by the claimant’s behaviour. He said in his statement “She had destroyed her working relationship with Nick Harbour and I could

[113]Following the meeting of the Council on 14 April, a letter was sent to the claimant by Mr Harbour on 15 April (1177). The claimant was asked to provide an explanation to five points listed in the letter. She was told that the Council required a response by 20 April. The letter ended with the following statement: “Given the above points, the Council need to consider whether there is a working relationship left between yourself and the Members and employees of the Council. If satisfactory responses are not received to the above points then please be aware that the Council may wish to consider a termination of your employment”

[114]The claimant did not respond to the letter, but a response was sent by Mr Gardner her ALCC Employment Support Officer dated 17 April (1181). In the letter Mr Gardner did not answer the questions asked and explained why the claimant would not be doing so.

[115]On 20 April 2020 the claimant appealed against the disciplinary outcome. The appeal was contained in a letter from Mr Gardner to Mr Harbour (1186). The letter began by stating that Mr Gardner wished to lodge an appeal on the claimant’s behalf regarding the disciplinary outcome received. He then listed in the letter six numbered grounds of appeal before stating that they were the main grounds for appeal against the written warning issued. In the first point of appeal the following was said: “We have raised on a number of occasions the Council’s breaches of the Personnel procedures. On this occasion, one example is the suspension of Safia on September 18th 2019. This suspension was made by Councillors Hayat and Wicks, accompanied by Nick Harbour. This is deemed to be outwith the Council’s procedures, as the Personnel Committee does not have full delegated authority to suspend an employee, particularly the Town Clerk. The Council’s Scheme of Delegation to Council, Committees and Officers makes no reference to delegated staffing matters without that reference by Council. On this occasion there was also a detriment suffered due to a protected disclosure by [the claimant]”

[116]There was no evidence that the claimant’s representative’s letter appealing against the disciplinary warning, was circulated to the Councillors ahead of the meeting on 21 April.

[117]A further extraordinary meeting of the full Council took place on 21 April 2020. Minutes were provided (1206). Twenty Councillors attended, including: the second respondent; Councillor Baig; Councillor Hayat; Councillor Sarwar; Councillor Tennant; and Councillor Wicks. The claimant was discussed (1207). The second respondent introduced the item. Having explained the correspondence sent and received following the previous Council meeting the second respondent was

[118]The minutes recorded that the members felt that the response received from the claimant was not satisfactory and had not attempted to answer any of the questions asked. That lack of response was stated as having been deemed to display more breakdown in communication between the claimant and the members of the Council. The minutes recorded further discussion. Councillor Latif proposed and Councillor Tennant seconded a motion that was resolved: “That Town Clerk’s contract is terminated due to the following reasons: A breakdown of the working relationship between the Town Clerk and Members/Town Council staff; Breaking the conditions of the suspension issued in September 2019; and Bringing the Council into disrepute”

[119]The minutes also recorded that the claimant was to be paid for any outstanding holidays not taken and for the notice period as outlined in her contract. The right to appeal was also noted.

[120]In his witness statement, Councillor Tennant recorded that he strongly supported the dismissal. He said: “We determined that the Claimant’s behaviour was unacceptable and that it had damaged beyond repair the working relationship between herself, the Councillors and Nick Harbour. It had also destroyed any relationship between the Claimant and Jessica Doyle. We felt that this was a very serious matter and one we could not tolerate; we owed a duty of care to our staff and to the Councillors and we had lost confidence in the Claimant”

[121]The evidence of Councillor Wicks was that the Council was over all in agreement that the claimant’s conduct had been unacceptable and that the Council had lost trust and confidence in her. Councillor Wicks emphasised, in particular, that it was felt that the claimant’s working relationship with Mr Harbour had irretrievably broken down.

[122]At the meetings of 14 and 21 April 2020 different Councillors would have had knowledge of different things, as attendees had sat on the two grievance panels, the disciplinary panel, and the personnel committee. For some attendees it would have been the first time that they were made aware of many of the events. Councillor Sarwar’s evidence was that he was unaware of the grievance raised in May 2019 as he had not been a member of the Council at the time, and he did not have sight of the claimant’s letters of 10 and 26 September 2019.

[123]On 22 April 2020 an employee of Peninsula sent a draft decision letter to Mr Harbour. The email (1219) made clear that what had been decided was against advice and would be uninsured action. On 23 April Mr Harbour provided the re-drafted letter to the second respondent, Councillor Latif, and Mr Hayat. When doing so, he forwarded the email containing Peninsula’s advice.

[124]The letter terminating the claimant’s employment was dated 23 April 2020 (1215). That recounted the points raised in the resolution made in the meeting of 14 April and the request made to the claimant to explain her response to the points. The response received from Mr Gardner was referred to. The letter went on to say: “Members concluded that there is an irreparable breakdown of a working relationship between yourself and Members and Staff, that your conduct has affected the reputation of the Town Council and that there is a breakdown of trust and confidence and communication between yourself and Members for the reasons mentioned above”

[125]The Tribunal heard some evidence about emails exchanged between Mr Harbour and others in which amendments to the minutes were requested. It was Mr Harbour’s evidence that the minutes were changed as proposed.

[126]The claimant appealed against the dismissal decision. The appeal was set out in a letter from Mr Gardner dated 27 April 2020 (1223). No appeal hearing was arranged. The appeal was considered at an extraordinary meeting of the full Council held on 1 May 2020. Minutes were provided of that meeting (1241). A motion was resolved which dismissed the appeal against termination. The minutes recorded that the second respondent did not take part in the discussion or motion at that meeting, and that was confirmed by him in evidence.

[127]The Tribunal was provided with some emails and correspondence regarding the payments due to the claimant. The claimant was paid in lieu of the basic salary which she would have received during the notice period. The claimant was also paid in lieu of all accrued but untaken annual leave as at the date her employment was terminated. There was no evidence provided regarding pension, but it appeared to be common ground that the pension scheme accrual ceased on the date of termination and the claimant was not paid any additional sum in respect to pension and what would have been the notice period.

[128]The Tribunal found Mr Harbour to be an honest and truthful witness. It was noted that he had been required to step into the role of Acting Town Clerk very quickly and without a hand-over or preparation. The claimant had clearly made the role her own and she had a detailed and thorough knowledge of the requirements of the role and the policies and procedures which applied (many of which she had put in place). The claimant’s counsel ably demonstrated in cross-examination the shortcomings in the advice (and lack of advice) which Mr Harbour gave to the first respondent about its policies and procedures and, in particular, its scheme of delegation. Nonetheless, the Tribunal did not doubt the honesty of the evidence which Mr Harbour gave at the hearing.

[129]The Tribunal found the second respondent to be a genuine and credible witness. It noted that the second respondent was one of the decision-makers in appointing the claimant to her role. The Tribunal did not find that the first respondent’s decisions were done at his behest, as alleged. The Tribunal found that the Councillors from whom evidence was heard were independent decision-makers who reached their own decision about matters and were not unduly influenced by the second respondent. The Tribunal accepted that the second respondent was not a

[130]The Tribunal found all of the respondents’ witnesses to be truthful. The Tribunal noted that the claimant did not call any witnesses to support her case (including the representative who accompanied her to many of the meetings and corresponded on her behalf during the internal procedures). The Law Public interest disclosures

The Law

[131]Section 43A of the Employment Rights Act says: “In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”

[132]Section 43B says: “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following – (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject”

[133]Section 43C provides that a disclosure to a worker’s employer is a qualifying disclosure.

[134]The word “likely” in section 43B requires more than a possibility or a risk that a person might fail to comply with a legal obligation, the information has to show that it was probable or more probable than not, that there would be a breach.

[135]The necessary components of a qualifying disclosure were summarised by HHJ Auerbach in Williams v Michelle Brown AM

UKEAT/0044/19/OO

(a case referred to in the respondents’ submissions): “It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held. Unless all five conditions are satisfied there will not be a qualifying disclosure.”

[136]The first stage involves a consideration of whether there has been a disclosure of information. The correct approach to the disclosure of information is set

[137]In her submissions the respondents’ representative referred to a number of authorities in relation to this issue and emphasised that facts (information) must be relayed and (relying upon Jesudason v Alder Hey Childrens NHS Foundation Trust

[2002] EWCA Civ 73

) that a bare statement, such as a wholly unparticularised assertion, would not suffice, whereas one which also explains the basis for the assertion is likely to. The other authorities referred to by her were: Cavendish Munro v Geldud

[2010] IRLR 38

; Goode v Marks and Spencer

UKEAT/442/09

; Norbrook Laboratories v Shaw

EAT/0150/13

; and Millbank Financial Service v Crawford

[2014] IRLR 18

[138]The second and third steps involve determining whether the worker believed that the disclosure of information was made in the public interest and (if the worker held that belief) whether it was reasonably held. When asked about the evidence in this case of the claimant’s belief, the claimant’s representative placed particular emphasis upon Chesterton Global Ltd v Nurmohamed

[2018] ICR 731

. In that case Underhill LJ held that an approach involving both objective and subjective elements applies to the requirement that in the reasonable belief of the worker making the disclosure, it is made in the public interest. Underhill LJ considered the situation in which a worker discloses information that relates to her own contract of employment and whether that precluded the employee also holding a reasonable belief that the disclosure was made in the public interest, and said the following:

[139]The mental element required imposes a two-stage test:(i) did the clamant have a genuine belief at the time that the disclosure was in the public interest; if so

(ii) did she have reasonable grounds for so believing? In relation to motivation, in Chesterton Underhill LJ said: “while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it: otherwise …. the new sections 49 (6A) and 103 (6A) would have no role. I am inclined to think that the belief does not in fact have to form any part of the worker's motivation – the phrase "in the belief" is not the same as "motivated by the belief"; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it” 140. Neither party referred the Tribunal to any authority which specifically addressed the question of a public-sector worker and whether disclosures made about their personal circumstances could or would be reasonably believed to be in the public interest by virtue of the nature of their employer and the information disclosed. However, that may be because the fact-sensitive nature of the decision to be reached in each case does not lend itself to any such authority. As Chesterton

[141]In accordance with the fourth and fifth steps set out in Williams, it is necessary to consider whether the worker held the belief that the information disclosed tended to show that a person/body had failed, was failing or was likely to fail to comply with any legal obligation to which it is subject, and whether that belief was reasonable. This involves subjective and objective elements. The test of what the claimant believed is a subjective one. Whether or not the employee’s belief was reasonably held is an objective test and a matter for the Tribunal to determine. Babula v Waltham Forest College

[2007] ICR 1026

said that no gloss upon the words of the statute is required. The respondent’s solicitor emphasised what was said in Soh v Imperial College UKEAT/03050/14: “the first question for the ET to consider is whether the worker actually believed that the information he was disclosing tended to show the state of affairs in question. The second question for the ET to consider is whether objectively that belief was reasonable … If these two tests are satisfied, it does not matter whether the worker was right in his believe. A mistaken belief can still be a reasonable belief. Whether the worker himself believes that the state of affairs existed may be an important tool for the ET in deciding whether he had a reasonable belief that the disclosure tended to show a relevant failure. Whether and to what extent this is the case will depend on the circumstances.

[142]HHJ Serota QC in Darnton v University of Surrey

[2003] IRLR 133

(a case referred to in both submissions) said: “it is extremely difficult to see how a worker can reasonably believe that an allegation tends to show that there has been a relevant failure if he knew or believed that the factual basis was false, unless there may somehow have been an honest mistake on his part. The relevance and extent of the employment tribunal’s enquiry into the factual accuracy of the disclosure will, therefore, necessarily depend on the circumstances of each case. In many cases, it will be an important tool to decide whether the worker held the reasonable belief that is required by S43B(1)”.

[143]The claimant’s representative relied upon that case when submitting that a disclosure may be a qualifying disclosure even if it transpires that the information disclosed was incorrect.

[144]As the respondents’ representative accepted, the date and content of each disclosure had been set out in this case and was set out in the list of issues. She emphasised that the claimant will ordinarily be expected to identify each alleged “failure to comply with a legal requirement”, the basis on which it is alleged each disclosure is qualifying and protected, and, save in obvious cases, the source of the obligation by reference for example to the statute or regulation. She also said that

[145]Section 47B of the Employment Rights Act 1996 provides that a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by her employer done on the ground that the worker has made a protected disclosure. Under section 48(2) it is for the employer to show the ground on which any act, or deliberate failure to act, was done (where it is asserted that it was on the ground of having made a public interest disclosure). The employer must prove on the balance of probabilities that the act, or deliberate failure, was not on the grounds that the employee had done the protected act.

[146]A worker is subject to a detriment if she is put at a disadvantage, as confirmed in Jesudason v Alder Hey Children’s NHS Foundation Trust

[2020] IRLR 374

: “It is now well established that the concept of detriment is very broad and must be judged from the view point of the worker. There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment.”

[147]In determining whether a claimant has suffered a detriment as a result of having made a public interest disclosure, the Tribunal must focus on whether the disclosure had a material influence, that is more than a trivial influence, on the treatment - NHS Manchester v Fecitt

[2012] IRLR 64

[148]It can be important to draw a distinction between: a detriment by reason of a protected disclosure; and one imposed by reason of the unreasonable way in which the employee makes the disclosure.

[149]The correct approach is to place the burden of proof on the claimant in the first instance to show that a ground or reason (that is more than trivial) for detrimental treatment is a protected disclosure; then by virtue of 48(2) Employment Rights Act 1996 the respondent must be prepared to show why the detrimental treatment was done and if they do not do so the Tribunal is entitled to infer that the detriment was on the ground that the worker made the protected disclosure (the claimant’s representative relied upon Ibekwe v Sussex Partnership NHS Foundation Trust

UKEAT/0072/14

when making this point).

[150]Determining whether a detriment is on the ground that the worker has made a protected disclosure, requires an analysis of the mental processes (conscious or unconscious) of the respondents acting as it/he did (the claimant’s representative referred to Chatterjee v Newcastle Upon Tyne Hospitals NHS Trust [2019] 9 WLUK 556). It is not sufficient to demonstrate that ‘but for’ the disclosure, the employer’s act or omission would not have taken place. The protected disclosure must have materially influenced the employer’s treatment of the worker.

[151]Section 103A of the Employment Rights Act 1996 provides that a dismissal shall be regarded as unfair if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure. The question which the Tribunal needs to determine when considering the dismissal is different to that for detriment, as the claimant’s representative agreed when it was clarified with him. The question is whether the principal reason for the dismissal was that the claimant made a public interest disclosure? Victimisation

[152]Section 27 of the Equality Act 2010 says: “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information given, or the allegation is made, in bad faith”

[153]The first question is whether the claimant did a protected act? In her submissions the respondents’ representative relied upon four authorities on this issue. The submissions which she made in reliance upon them were as follows:a. Merely making a criticism, grievance or complaint without suggesting that it was in some sense an allegation of discrimination is not enough -Beneviste -v- Kingston University

EAT/0393/05

;

b. In Durrani -v- London Borough of Ealing

EAT/0454/12

although the claimant had referred to being “discriminated against” and suffering detriment, he had not been specific in relation to race discrimination;

c. In Fullah -v- Medical Research Council

EAT/0586/12

the claimant did not mention race in his complaint of discrimination and believed it was relevant that one year later he made very explicit allegations of

[154]If the claimant has done the protected act, for victimisation the next question for the Tribunal is whether the respondent subjected the claimant to a detriment because of that protected act, in the sense that the protected act had a material or significant influence on subsequent detrimental treatment. That exercise has to be approached in accordance with the burden of proof. If the claimant proves facts from which the Tribunal could reasonably conclude that her protected act had a material influence on subsequent detrimental treatment, her case would succeed unless the respondent could establish a non-discriminatory reason for that treatment.

[155]If the Tribunal concludes that the protected act played no part in the treatment of the claimant, the victimisation complaint fails even if that treatment was otherwise unreasonable, harsh or inappropriate. Unreasonable behaviour itself does not necessarily give rise to any inference that there has been discriminatory treatment.

[156]The word detriment in section 27 is to be interpreted widely. The key test is for the Tribunal to ask itself: is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to her detriment? An unjustified sense of grievance would not pass this test, but the test is framed by reference to a reasonable worker, so it would be enough if a reasonable worker would or might take such a view. Breach of contract

[157]A breach of contract claim can only be brought in the Employment Tribunal if the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 applies. That Order only applies to claims by an employee and where the claim arises or is outstanding on the termination of the employee’s employment.

[158]In his submissions, the claimant’s representative submitted that at common law the employer is entitled to dismiss its employee on the spot without notice for gross misconduct, correctly explaining that the proper analysis of that statement was that in such circumstances an employee will have committed a repudiatory breach of contract and the employer will have accepted it. He contrasted gross misconduct with a dismissal due to a breakdown of trust and confidence.

[159]In his submissions, the claimant’s representative relied upon Mbubaegbu v Homerton University Hospital NHS Foundation Trust

UKEAT/0218/17

and what it said in relation to determining whether the claimant had committed a repudiatory breach of contract: “Whether or not the label of gross misconduct is applied to such conduct is not determinative. It is quite possible for a series of acts demonstrating a

[160]The claimant’s counsel also submitted that the first respondent’s decision to pay in lieu of notice obviated any argument that the claimant’s conduct leading to dismissal justified summary dismissal, relying upon Dixon v Stenor Ltd

[1973] IRLR 28

. The Tribunal did not agree with that analysis. A decision by an employer to accept a fundamental breach of contract and terminate the contract, is not in some way undermined where the employer also chooses to pay a sum equivalent to or referable to the notice period which would have applied, and the authority relied upon does not say otherwise. Such an argument, if correct, would otherwise have the unfortunate effect of acting as a disincentive to employers who wished to ensure that an employee did not leave without the cushion of some payment, in circumstances where the employee had fundamentally breached the contract.

[161]Neither party referred to, or was able to point the Tribunal to, any authority which addressed the issue of whether or not an employee is able to claim as damages for breach of contract a sum equivalent to the annual leave which would have accrued during the notice period, had they not been dismissed without notice in breach of contract. It was understood that the first respondent submitted that an employee was not so entitled, and it was part of the claimant’s case that she was. Applying normal contractual principals to the issue, a claimant is entitled to be put in the position in which they would have been had their contract not been breached and they are entitled to damages arising as a result. Where, as in this case, there is no evidence available that the claimant would have in fact taken any leave which would have accrued during the notice period, there would appear to be no reason why the claimant’s damages should not include any such leave which would otherwise have accrued during the notice period and therefore have been paid in lieu, on termination.

[162]Section 123 of the Equality Act 2010 provides that proceedings must be brought within the period of three months starting with the date of the act to which the complaint relates (subject to the extension for ACAS Early Conciliation), or such other period as the Tribunal thinks just and equitable. Conduct extending over a period is to be treated as done at the end of the period. A failure to do something is to be treated as occurring when the person in question decided on it. The Tribunal did hear submissions on time points, but in the light of the findings which we made it is not necessary to refer to those issues further in this Judgment. It is also not necessary to refer to the law as it applied to the protected disclosure claims under the Employment Rights Act 1996.

[163]Both representatives provided lengthy and detailed submissions. In this Judgment the Tribunal has not endeavoured to reproduce what was argued in full. It considered the entirety of the submissions, but has included only those parts which it considered necessary when providing the Judgment and the reasons for the Judgment. Conclusions – applying the Law to the Facts

[164]The Tribunal would emphasise that its role in this case was to determine the issues as set out in the list of issues and as agreed by the parties. That meant it was not the role of the Tribunal to determine other matters. A significant amount of time during the hearing involved evidence about the standing orders and the scheme of delegation of the first respondent, and questions about whether the first and/or second respondent had acted in accordance with those documents. This Tribunal is not one which determines matters of public law and it neither needed to, nor was it appropriate for it to, make findings upon whether the first and/or second respondent had complied with the first respondent’s policies, procedures and obligations in the processes followed. To the extent that those issues are relevant, they have been considered and addressed.

[165]The claim for ordinary unfair dismissal was not pursued, as confirmed by the claimant’s counsel on the second day of the hearing. Whilst the Tribunal did not need to determine the issues set out at section one of the list of issues, it was understood that the decision not to pursue the claim was made because the claimant did not have two years’ continuous employment as is required to pursue such a claim. The Tribunal did not need to determine an ordinary unfair dismissal claim. The tests and factors to be considered in the claims for dismissal because of an alleged protected disclosure and victimisation, are very different from those which would have applied to an ordinary unfair dismissal claim. The absence of procedural fairness does not have the same importance in those claims, as it would have for an ordinary unfair dismissal claim (albeit it is still relevant).

[166]The Tribunal did not address the issues in the order set out in the list of issues. The Tribunal first considered each of the protected disclosures/protected acts relied upon and determined whether each had been a protected disclosure and/or a protected act. The Tribunal understood the importance of considering the different tests which applied on each occasion. In determining whether something was a

[167]The first alleged disclosure was the formal grievance raised by the claimant on 28 May 2019 (445). The Tribunal needed to decide whether it was (or contained) a protected disclosure and/or whether it was (or contained) a protected act.

[168]In the submissions made on behalf of the claimant it was submitted that the Tribunal should read not only the letter of 28 May 2019 itself, but it should be read together with the enclosures provided with it. The Tribunal accepted that submission and, accordingly, did consider not only what was said in the letter itself but also what was said in the other documents enclosed. Importantly when doing so, the letter included as an enclosure the claimant’s email to the second respondent of 18 February 2019 (420).

[169]The respondents’ representative, in her submissions, accepted that there was a disclosure of information.

[170]The second question to be asked according to the Williams decision, was whether the claimant believed that the disclosure was made in the public interest? The Tribunal did not find that the claimant believed that the disclosure of information made was made in the public interest. There was no evidence that she did so. The letter and the grievance were focussed on the claimant’s own pay and her belief that her role should have a job evaluation. An assertion from the claimant that she should have a further job evaluation and should be paid more as a result, was not a disclosure which the Tribunal found to have been made in the public interest. More importantly, it did not find that the claimant believed that it was. The simple fact that the claimant worked for a public-sector body and that the decision had been made by those in a public-office, were not sufficient for the disclosure to have been made in the public-interest and, in this case, the Tribunal did not find that the claimant believed that what she was disclosing was in the public interest.

[171]The third question, was whether, if the claimant held such a belief (that disclosure was in the public interest), it was reasonably held? For the same reasons as have been explained when addressing whether the claimant genuinely had that belief, the Tribunal did not find that such a belief would have been reasonably held (even had the Tribunal found that the claimant had so believed).

[172]The fourth question was whether the claimant believed that the disclosure tended to show one or more of the matters set out in the relevant sub-sections of the Employment Rights Act 1996. In this case, the claimant relied upon section 43B(1)(b), that a person had failed, was failing, or was likely to fail, to comply with any legal obligation to which it was subject. The Tribunal did not find that the claimant believed that the disclosure made in her letter of 28 May 2019 and the attached documents, did tend to show that the first respondent had failed to comply with a legal obligation. There was no reference to any legal breaches in the letter. The claimant had no legal right to a job evaluation, as she accepted. The letter made

[173]The fifth question was, if the claimant held such a belief (that the disclosure tended to show that a person had failed, was failing or was likely to fail to comply with any legal obligation to which it was subject), whether that belief was reasonably held? For similar reasons to those explained when addressing her belief, the Tribunal would not have found that it would have been reasonable for the claimant to have held that belief, had it found that she had done so.

[174]The Tribunal then considered whether or not the letter of 28 May 2019 and its enclosures, constituted or contained a protected act as required for a victimisation claim, applying section 27 of the Equality Act 2010. Tribunal did not find the letter and the attachments to be a protected act, or to contain a protected act, applying the definition in the Equality Act. The Tribunal did not find that the content of the letter itself was or contained what was required to constitute a protected act. The letter did not allege discrimination or a breach of the Equality Act, either explicitly or implicitly. It did not contain a protected act.

[175]The Tribunal did consider very carefully whether the reference to equal opportunities made in the email of 18 February 2019 (420), which was attached to the letter, was sufficient to constitute a protected act (or mean that the other content constituted a protected act in the light of what was said). The Tribunal’s decision was that it was not and did not. Whilst that document did refer to the first respondent as an equal opportunities employer and stated that the claimant trusted that she would be given an equal opportunity, the Tribunal did not find that what was said was sufficient to amount to a protected act in the light of the law as explained in the legal section above. There is a difference between asserting a right to be treated equally and asserting discrimination or something in connection with the Equality Act, and the Tribunal found that what was said was insufficient to constitute a protected act. Issues 4(a)(ii) and 7(i)(b)

[176]The second alleged disclosure/protected act, was in fact two separate alleged disclosures, and the Tribunal considered them both separately. The first of the disclosures relied upon as part of the second disclosure was the claimant’s letter of 10 September 2019 sent to two Councillors and then (with her agreement) forwarded to a third (510). The Tribunal considered that letter first and followed the same steps as have been set out for the first document relied upon (as it did for each of the documents relied upon).

[177]The respondents’ representative in her submissions accepted that the letter disclosed information.

[178]The Tribunal did find that in providing the information which she did to the Councillors, the claimant did believe that what she was disclosing did show that the first respondent had not complied with its legal obligations. The claimant alleged bullying and harassment. If upheld, such allegations would involve the first respondent being in breach of its legal obligations. The Tribunal also found that

[179]The Tribunal did not find that the claimant believed that what she was disclosing was in the public interest. What she was disclosing was about the claimant. The motivation was entirely one of self-interest. However, the Tribunal is aware that the motivation for the disclosure was not important, what was important was whether the claimant genuinely believed that what she was disclosing was in the public interest (irrespective of her motivation for making the disclosure). The Tribunal did not find that the claimant believed that what she was disclosing was in the public interest. The claimant gave no evidence that she did. There was no other evidence which showed that she did. Nothing in the information provided in the letter, evidenced that she did believe what she was saying was in the public interest. The letter concluded by making requests about matters which related only to the claimant personally.

[180]Even had the claimant believed that the information she was disclosing was in the public interest, the Tribunal would have found that would not have been a reasonable belief, for the same reasons as explained when explaining why we decided that the claimant did not believe that the information disclosed was in the public interest.

[181]Turning to the victimisation claim, the Tribunal also did not find that the letter of 10 September 2019 was a protected act or contained a protected act. There was no reference in the letter to discrimination or to a breach of the Equality Act 2010. The Tribunal did not find that what was said within it satisfied what is required by section 27(2) of the Equality Act 2010.

[182]The second of the disclosures relied upon for the second disclosure was the letter of 26 September 2019 which contained the claimant’s formal grievance (550). That was a very lengthy letter. As a result, there was some disconnect between the elements of the letter addressed in the submissions. The respondents’ representative focused upon the allegations of breaches of equality legislation. The claimant’s representative in his submissions relied upon other breaches of the law, such as the first respondent’s code of conduct and the Localism Act 2011. The Tribunal considered the letter as a whole when determining whether it was (or contained) a protected disclosure and/or protected act. The Tribunal also noted and took into account what was alleged at paragraph (l) of the letter (555) which is explained in detail in the findings of fact above.

[183]The respondents’ representative, in her submissions, accepted that there was a disclosure of information.

[184]The Tribunal found that what was alleged in the letter of 26 September was genuinely believed by the claimant. The Tribunal also found that the information disclosed was in the public interest and the claimant believed that it was. The claimant provided information which she said tended to show that there had been a breach of the law by the Council when suspending its principal financial officer. Whilst that was personal to the claimant, it was nonetheless something which the Tribunal accepted that the claimant believed was in the public interest. That was

[185]The Tribunal also found that the claimant did disclose information in the letter which tended to show that the first respondent was in breach of its legal obligations. She asserted that her suspension and the decision to suspend being made by the personnel committee, was a breach of the legal obligations to which the first respondent was subject. Not only did she believe that, but in the Tribunal hearing it was accepted by Mr Harbour that doing so had been a breach of the first respondent’s legal obligations. As a result. It was clear that belief was a reasonable one for the claimant to have.

[186]As a result, the Tribunal found that the formal grievance of 26 September 2019 was a protected disclosure (or that it contained within it a protected disclosure or protected disclosures).

[187]The Tribunal also found that the letter of 26 September 2019 was a protected act. As detailed in the findings of fact above, the letter contained a number of clear assertions of discrimination. It was not relevant to the determination of whether they were a protected act for a victimisation claim, whether those allegations were correct. It was not proved to the Tribunal that any of them were. However, the Tribunal accepted that the claimant herself genuinely believed what she asserted and what she asserted was that the first and second respondent had acted in ways which amounted to unlawful discrimination. Accordingly, the Tribunal also found that the letter of 26 September 2019 contained a protected act or acts.

[188]In her submissions, the respondent’s representative submitted that the protected act was not made in good faith. She highlighted that disclosures made in bad faith are not protected. She contended that the claimant’s allegations were not based upon a mistaken belief, they were false allegations. The Tribunal did not find that what the claimant alleged in the letter was alleged in bad faith. Issue 4(a)(iii)

[189]The third alleged protected disclosure relied upon was the email sent to all Councillors by the claimant of 29 February 2020 (846). When asked about what part of the email it was she was relying upon, the claimant emphasised the part in bold.

[190]For this email, the respondents did not accept there was a disclosure of information, they contended that what was said was simply an allegation. To be a protected disclosure, there must be a disclosure of some information. The Tribunal agreed with the respondents’ representative’s submission. The email and, in particular, the part of the email which was in bold, was not providing information it was making an allegation. The later parts of the email reminded Councillors of their obligations and explicitly did so, but it did not provide information to them.

[191]The Tribunal also did not find that the claimant believed that what she was disclosing was in the public interest. There was no evidence that the claimant did. What the claimant was alleging in her bold paragraph was something about which she had known for almost two years. The claimant was clearly somebody who was

[192]As the Tribunal did not find that the claimant either disclosed information in her email of 29 February 2020 or that she believed that it was in the public interest, it did not need to decide whether she could have reasonably believed it was.

[193]The Tribunal also did not find that the claimant believed that the information which she disclosed in her email of 29 February showed that a legal obligation had not been complied with. It would not have been reasonable had she done so. In her letter she was not asserting a breach of a legal obligation. She was not asking the Councillors to look into what she raised. She was explicitly reminding the Councillors of their obligations.

[194]Accordingly, and for the reasons given, the Tribunal did not find that the email of 29 February 2020 was, or contained, a protected disclosure. It was not asserted to be a protected act. Issue 4(a)(iv)

[195]The fourth alleged protected disclosure relied upon was the claimant’s appeal against her disciplinary sanction. That was the letter sent by Mr Gardner of the ALCC (her professional body) on her behalf on 20 April 2020 (1186).

[196]The respondents’ representative contended that the letter did not disclose any information. It was certainly the case that the letter did not disclose any new information. However, the Tribunal did find that what was said in the letter did disclose some information. The Tribunal focussed upon point one of the letter, which has been quoted in the findings of fact above. What was said about the suspension and how it had occurred, was the provision of information (albeit information which had been provided before).

[197]The Tribunal did not find that the claimant believed that the information which her representative disclosed in the letter was disclosed in the public interest. What Mr Gardner disclosed was information about her suspension in the context of an appeal against a disciplinary sanction. The remainder of the letter was focussed upon addressing the disciplinary warning and why it was said that should not have been imposed (as would be expected in an appeal against a disciplinary sanction). The claimant did not give specific evidence about what it was she believed was in the public interest about her grounds of appeal, and (in the absence of such

[198]In the paragraph quoted, the information which the claimant disclosed did tend to show that the first respondent was in breach of its legal obligations by the way in which the decision to suspend the claimant had been made. The claimant did believe that the first respondent and, in particular, the personnel committee had acted outside its procedures (and legal obligations) when doing so. That belief was reasonable (as fully demonstrated by her representative during the hearing).

[199]Accordingly, and for the reasons given, the Tribunal did not find that the appeal of 20 April 2020 was, or contained, a protected disclosure. It was not asserted to be a protected act. Protected disclosures and protected acts

[200]As explained and for the reasons given, the Tribunal did find that the claimant made a protected disclosure (or disclosures) in her formal grievance letter of 26 September 2019. The Tribunal also found that the claimant had done a protected act (or acts) in the content of that letter. However, the Tribunal did not find that the claimant had made protected disclosures in any of the other documents relied upon. It also did not find that the claimant had done any other protected act. As a result, in considering the detriments relied upon (as well as/including the dismissal) the Tribunal considered those allegations as they related to 26 September 2019 letter only. The Tribunal also considered the protected disclosure and the victimisation allegation at the same time in relation to each alleged detriment as the issues were very similar.

[201]Whilst the Tribunal did not need to do so, it would however record the following which applied to the other alleged disclosures/protected acts even had they been found to have been protected disclosures (or, in the case of the initial grievance of 28 May 2019 or the informal grievance of 10 September 2019, protected acts):a. The detriment of being suspended on 17 September 2019 could not have been because of the informal grievance letter sent to two Councillors on 10 September 2019 (and subsequently provided to one more), because the Councillors who had received the letter did not share it with others and did not make the decision to suspend the claimant;

b. The detriment of being suspended on 17 September 2019 could also not have been because of the email to all Councillors of 29 February 2020 and what was said in it, as it occurred before that document;

[202]The claimant alleged that being suspended on 17 September 2019 was a detriment suffered as a result of having made a protected disclosure and/or as a result of having done a protected act. Being suspended was clearly a detriment for the claimant.

[203]However, as the Tribunal found that the only protected disclosure (or disclosures) made and the only protected act (or acts) were in the formal grievance letter of 26 September 2019, the claimant’s claim for this detriment could not succeed. The protected disclosure (or disclosures) had not been made and the protected act had not occurred until after the detriment alleged. The claimant was not suspended on 17 September 2019 because of what she said in her subsequent formal grievance. Issues 5(i)(b) and 7(ii)(b)

[204]The detriment relied upon for these issues/allegations was the written warning imposed in the letter dated 14 April 2020, following the disciplinary hearing on 12 March 2020. Being given a written warning was a detriment.

[205]As highlighted in the facts section above, what was imposed was a written warning and not a final written warning. The Tribunal considered that the imposition of a warning for what was found, was not inappropriate. The Tribunal noted that the disciplinary panel appeared to have been very fair to the claimant in the outcome as it had not upheld a number of the allegations made. It had found only two of the misconduct allegations. There appeared to be good and valid reasons for those allegations being found. The claimant was given only a written warning, when a harsher penalty might have been imposed.

[206]This was a decision made by Councillors Sarwar, Holland and Ahmed. Mr Sarwar’s evidence, which the Tribunal accepted, was that he had not had sight of the formal grievance when he made the decision, and he had no knowledge of its content. The panel who heard the claimant’s grievance was entirely different from the panel who heard the disciplinary. Whilst the Tribunal did not hear from Councillors Holland or Ahmed and did not have the same positive evidence that they had no knowledge of the content of the formal grievance or sight of its content, nonetheless there was no evidence that they did. There was certainly no evidence whatsoever that the content of the formal grievance had had any impact on the disciplinary outcome. As a result, the Tribunal did not find that the protected disclosure(s) made in the formal grievance of 26 September 2019 or the protected

[207]This allegation was also one which the claimant pursued against the second respondent. The Tribunal did not find that the second respondent had treated the claimant detrimentally by imposing a written warning on her as alleged. The second respondent was not a party to the decision in the disciplinary process. He did not subject the claimant to the detriment alleged. Issues 5(i)(c) and 7(ii)(c)

[208]The third alleged detriment was the decision made at the meeting of the full Council on 14 April 2020 to require the claimant to answer a further set of questions. The letter asking the claimant to do so was dated 15 April 2020. The Tribunal found that asking the claimant to do so was a detriment.

[209]The requirement for the Tribunal to determine whether the protected disclosure(s) and protected act(s) contained in the formal grievance of 26 September 2019 had any material influence on this decision was somewhat unusual, because for this allegation the Tribunal was required to consider a decision made by a large number of decision-makers. Fifteen Councillors attended the meeting. The decision was made collectively. The Tribunal heard evidence from some of the Councillors who attended, but not others.

[210]The Tribunal noted that there was a mention of the grievance in the meeting, as it was said that the grievance had not been upheld. The same was true of the claimant’s other grievances (which had not been raised in letters containing protected acts or protected disclosures). The Tribunal noted the time between the formal grievance being sent (26 September 2019) and the decision of the Council (14 April 2020) which was broadly not supportive of the argument that one had a material influence on the other. There was no genuine evidence heard by the Tribunal that the content of the formal grievance was a material factor in, or a significant influence upon, the decision made.

[211]The Tribunal noted that complaints had been raised about the claimant shortly before the decision, from a relatively junior employee of another Council and Mr Harbour (someone who reported to the claimant and was junior to her). The Tribunal accepted Mr Harbour’s evidence that his complaint was genuine. As explained, the Tribunal found Councillor Tennant to be a genuine and credible witness who was clear and articulate and explained why he made the decision. He was someone who also worked for another local authority and explained that he had been trained in diversity and inclusion issues. The Tribunal accepted that he considered the matters in a fair way which was not materially influenced by the claimant’s protected act or protected disclosure. As the Tribunal has said, we found the respondents’ witnesses to be truthful and accepted the evidence we heard from each of the Councillors from whom we heard about the reason for the decision made.

[212]As a result, the Tribunal did not find that the protected disclosure(s) made in the formal grievance of 26 September 2019 or the protected act(s) in the same letter,

[213]With regard to the allegation against the second respondent, we also did not find that in the decision made he subjected the claimant to the detriment because of the protected disclosure(s) or protected act(s) in 26 September letter. We accepted his evidence. We accepted the evidence of the respondents’ other witnesses that the decision was a collective one involving the input and decision-making of a number of independent Councillors. Issues 6 and 7(ii)(d)

[214]As already addressed when considering the law, the issue which the Tribunal needed to determine when considering the dismissal was slightly different for the claim that the dismissal was automatically unfair because of the protected disclosure, than it was for the alleged protected disclosure detriment claims and for the victimisation claim. The question was what was the principal reason for the dismissal? Nonetheless and despite the fact that the tests were slightly different, the Tribunal considered the two issues together as they applied to the dismissal (whilst applying the slightly different tests).

[215]Clearly, being dismissed was a detriment for the purposes of the victimisation claim.

[216]The decision to dismiss was made at the Council meeting on 21 April 2020. As with the previous detriment, the Tribunal needed to consider a decision made by a number of people. For this meeting twenty Councillors were in attendance and nineteen made the decision (as the second respondent did not). To an extent, what was determined at this meeting, followed from what had been decided at the meeting the previous week. The resolution of the 14 April meeting had been to ask the claimant a set of questions. The claimant had not answered them (her ALCC representative had sent a response explaining why she would not). In practice, as the claimant had not responded to the questions asked, it meant that the position had not changed from that proposed or considered the week before.

[217]As with the previous allegation, the Tribunal accepted the evidence which it heard from the respondents’ witnesses about the decision and why it was reached. We accepted Councillor Tennant’s explanation for his support of the dismissal. There was no genuine evidence that the dismissal was materially influenced by the content of the grievance letter of 26 September. The content of that letter was not the principal reason why the claimant was dismissed. The principal reason for the dismissal was the breakdown of the working relationship between the claimant, and Councillors and staff. The issues raised by Mr Harbour and Ms Doyle were a significant factor. The claimant was not dismissed because of the protected disclosure(s) or protected act(s) we have found.

[218]The claim for automatic unfair dismissal arising from the protected disclosure was not pursued against the second respondent (as such a claim could only be pursued against the first respondent). The allegation that the claimant’s dismissal was an act of victimisation was. The Tribunal did not find that the second respondent

[219]In practice the time issues only applied to the decision to suspend, as the claim was brought within the time required for all the other alleged detriments. The claimant’s representative entirely correctly accepted that time would not be extended for the allegation that the claimant was treated detrimentally for making a protected disclosure. As we have not found any of the alleged detriments, that allegation would not have been found to have been brought in time and the Tribunal would not have had jurisdiction to consider it. As we have determined the claims on their merits, it is not appropriate for us to address any other time points. Issue 2

[220]The breach of contract claim was a claim brought against the first respondent only. It was not a claim which was brought against the second respondent.

[221]The Tribunal did not find that the claimant fundamentally breached her contract of employment with the first respondent in the ways addressed in the decision to dismiss. It was only the matters which the first respondent took into account when dismissing the claimant which could be considered, as the alleged fundamental breach relied upon by the first respondent and contended to have been accepted by it could not arise from other matters which had not led to the dismissal (such as those matters which led to or were considered in the disciplinary decision for which the claimant was not dismissed). In the findings of fact we have recorded the claimant’s approach to Mr Harbour and Ms Doyle which led them both to raise complaints and which, to an extent, led to the decision to dismiss. We have also considered the other matters which led to that decision. As addressed in the legal section we considered the cases referred to and the submissions made. We noted from Mbubaegbu that a dismissal for breach of duty of trust and confidence could be found to have been as a result of a fundamental breach of contract by the claimant even though it was not said to be for gross misconduct or categorised as such. We have considered whether the dismissal occurred in circumstances where the claimant had conducted herself in such a way as to undermine the trust and confidence inherent in the employment relationship. In this case the Tribunal did not find that the actions of the claimant which led to her dismissal had amounted to a fundamental breach of the employment relationship. They were not of that significance. We found that the claimant did not fundamentally breach the contract of employment.

[222]As we have found that the claimant did not breach the contract of employment, the claimant was entitled to be employed for the period of notice to which she was entitled under her contract. There was no contractual entitlement for the first respondent to end the contract without notice and to pay in lieu. As a result,

[223]It was not in dispute that the first respondent did pay the claimant in lieu of basic salary for what would have been the notice period. As a result, that payment addressed a significant part of what would have been the claimant’s loss arising from the contractual breach by the first respondent.

[224]With regard to annual leave, the first respondent paid the claimant the sum due for accrued annual leave up to the termination date. The claimant was not paid for the annual leave which she contends she would have accrued during the notice period had she been employed. There was no evidence that the claimant would have taken that leave during the notice period. The first respondent did not have a contractual right to require the claimant to take the leave during the notice period. As a result, the Tribunal found that the respondent failing to pay the claimant for the annual leave that she would have accrued during her notice period (which she would then have been paid in lieu on termination) was a failure to remedy losses arising from the breach found.

[225]The claimant also claimed pension losses arising from the breach. The claimant was entitled to remain employed for the notice period. The fact that she was not employed was a breach of contract by the first respondent. If (as would appear to have been the case) the claimant’s pensionable service ceased on the termination date, the claimant will be entitled to damages to compensate for the period of service lost as a result of the failure to employ her for her notice period.

[226]During submissions, the respondents’ representative quite rightly accepted that the dismissal could only have been effective on 23 April when the claimant was informed she had been dismissed (not 21 April when the decision was made). It is noted that the contract provides that the claimant was contractually entitled to four weeks’ notice (204) (and not one month as was referenced in some of the documents). The claimant will be entitled to the losses arising from non-payment of the annual leave she would have accrued during that notice period and for the pension losses arising from the contract being terminated in breach.

Summary

[227]For the reasons explained above, the Tribunal found for the claimant in her breach of contract claim against the first respondent. We did not find for the claimant in her other claims against the first respondent. We did not find for the claimant in any of her claims against the second respondent.

[228]As a result of the finding of breach of contract, there remains outstanding the issue of the remedy due from the first respondent to the claimant. In the hearing, the representatives expressed a very positive expectation that it would be possible to agree the sum of damages due if a breach of contract was found. It is hoped that the claimant and the first respondent will be able to do so. The parties must write to the Tribunal within 28 days of the date when this decision is sent to the parties, to confirm whether remedy has been agreed or not. If remedy is not agreed (or no

[229]As already recorded, there also remains outstanding an application for costs made by the claimant at a previous hearing. A hearing to determine that issue will be arranged once the position on remedy has been established. After the parties have confirmed the position on remedy, a further hearing will be arranged. If the hearing is required to determine both issues it will be listed for one day before the same panel (by CVP unless either party objects). If a hearing is required for the costs application only it can be heard by the Employment Judge sitting alone and will be listed for three hours (also by CVP unless either party objects).