Ms C Raison v DF Capital Bank Ltd and others: 2406196/2023

EMPLOYMENT TRIBUNALS

Case No 2406196/2023

Between

Ms C RaisonClaimant

DF Capital Bank Ltd and othersRespondent

Before

Employment Judge Dunlop

Mr Lee Bronze (instructed by Counsel) for claimant

Mr Joseph England (instructed by Counsel) for respondent

Date 10 March 2026

JUDGMENT

[1]The Tribunal has no jurisdiction to hear the claimant’s complaint of unfair dismissal on the grounds of having made a protected disclosure as it was presented outside the time limit prescribed by s111 Employment Rights Act 1996. That claim is dismissed.

[2]The fifth respondent’s application to strike out the claimant’s claim against it is rejected.

[3]The claimant’s claims against the third and fourth respondents are dismissed on withdrawal. It is recorded that the basis for the withdrawal was a concession by the first respondent that it is liable for any act of discrimination (currently pleaded) which the Tribunal finds the third or fourth respondent to have carried out against the claimant. Case No:2406196/2023

[4]The remaining claims will proceed to a further preliminary hearing on a date already notified to the parties. JUDGMENT having been sent to the parties on 28 December 2023 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

Introduction

[1]This was a public preliminary hearing to determine various procedural matters arising in this claim. I made a Deposit Order in respect of the claim against the fifth respondent, for which reasons have been provided in the body of that Order. I declined an application to strike out that claim. I also recorded the withdrawal of claims against two of the above-named respondents, who have been dismissed from the proceedings by a separate Judgment. I also determined that the Tribunal did not have jurisdiction, on the basis of limitation, to consider the claimant’s claim of unfair dismissal on the ground that she had made a protected disclosure.

[2]At the conclusion of the hearing Mr Bronze requested written reasons for my decision on the limitation point. I now provide those reasons.

[3]The following key dates were not in dispute between the parties:3.1 The claimant commenced Early Conciliation on 13 February 2023 (Day A”);

3.2 Her employment terminated on 17 February 2023;

3.3 Early Conciliation closed on 28 February 2023 (“Day B”);

3.4 The claim was presented on 30 May 2023.

[4]I was also told by both representatives that the following facts were agreed:4.1 Ms Raison took legal advice before issuing her claim;

4.2 That included advice as to limitation;

4.3 That advice was from a qualified solicitor instructed by her.

[5]As the relevant facts were agreed, Ms Raison did not give evidence.

[6]Under the unmodified provisions of s.111 Employment Rights Act 1996 (“ERA”), the final date for presentation of the claim would have been 16 May 2023, in order for it to be presented “before the end of the period of three months beginning with the effective date of termination.”

[7]Section 207B ERA provides as follows: 207B … (2) In this section-(a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which proceedings are brought, and

(b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section. (3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. (5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.

[8]The parties agree that the primary limitation period is extended by s.207B. They disagree as to how far it is extended.

[9]The limitation period for the claimant’s automatic unfair dismissal claim began to run from 17 February 2023, when her employment ended, a date which is midway through the Early Conciliation period. The question is whether the limitation period is extended, by virtue of s.207B ERA, by the number of days contained in the full Early Conciliation period, or only by the number days which coincide with the period following the termination.

[10]For the respondent, Mr England submits that Ms Raison is not entitled to the benefit of the earlier days. He says that period of from the dismissal to the end of conciliation was 11 days. Adding 11 days onto the primary limitation date of 16 May takes us to 27 May. The claim was presented on the 30 May, therefore three days late. Mr Bronze submits that the full 15 days is to be added on, which takes us to 31 May. On that basis the claim is in time.

[11]Mr England relies on the EAT decision in HMRC v Serra Garau

2017 ICR 1121

. That case dealt with a different situation – whether the limitation period could be extended by reliance on a second ACAS certificate, where the parties had already been through conciliation and an earlier certificate had been issued. Mr England contends that the ratio of Serra Garau applies equally in cases where part of the conciliation period pre-dates the start of the limitation period. The argument is expressed in this way by the Editors of IDS Brief at volume 9, paragraph 3.96: In some cases, the EC period may begin before a time limit has actually started to run, such as when an employee who is working out their notice starts EC before their effective date of termination. Any part of the EC period which occurs prior to the relevant limitation period commencing will not count towards an extension of time under S.207B(3) and the equivalent provisions. This follows the EAT’s decision in HM Revenue and Customs v Serra Garau (see ‘Impact of second certificate’ above). In that case, the entire EC period had taken place before the time limit had started to run and so there was no extension of time under S.207B. The EAT commented that ‘the limitation clock could not stop… because it had never started’.

[12]There are inconsistent ET decisions on the point, which are also highlighted in IDS. Mr Bronze submitted several of them for my consideration today, in support of his submission that a purposive approach should be taken, allowing the claimant the benefit of the full Early Conciliaiton period in extending the primary limitation period. This approach emphasises the wording of s.207B, which refers to the whole of the period between Day A and Day B, without suggesting that it can be reduced.

[13]Four of the five Judgments pre-dated the decision in Serra Garau and, for that reason, I am of the view that it is unhelpful to place reliance on them.

[14]The one Judgment post-dating Serra Garau was a decision of Employment Judge A James in London Central in the case of Macken v Skanska UK plc heard on 26 February 2021. Mr Bronze appeared for the claimant. The Judge found that Serra Garau did not assist because of the different factual matrix, and preferred the approach taken in the earlier first instance decisions.

[15]I have reached a different conclusion. I consider that Serra Garrau establishes the principle that a clock which has not started to run cannot be paused. That principle is effective regardless of whether the start date of the limitation period falls after the closure of EC, as in Serra Garau itself, or within the EC period, as in this case. The factual difference does not, in my Judgment, provide a proper basis to distinguish the appellate authority.

[16]In this I appreciate I have reached a different conclusion to EJ A James in Macken. That is a concern as it is a decision which post-dates Serra Garau and in which the key facts are analogous to the ones in this case. However, I am fortified in that view by the unambiguous views expressed by editors on IDS Employment Law Handbooks in the paragraph set out above and the ones subsequent to it. I find that rationale in that passage to be much more cogent than the passage dealing with this point in Harvey which was cited in the Macken Judgment. That passage does not acknowledge Serra Garau and the impact that it must, in my view, have on the first instance decisions cited.

[17]For those reasons, I conclude that limitation expired on 27 May 2023, and that the claim was late by three days.

[18]I must then consider whether it was reasonably practicable for the claimant to have presented the claim in time. The only explanation advanced for it being not reasonably practicable is that the claimant had obtained professional advice and acted in accordance with it. In normal circumstances, where a claim is presented late due to the mistake of an advisor, the claimant will be bound by that mistake and unable to rely on it in support of an argument around reasonable practicability (Dedman v British Building and Engineering Appliance Ltd

1974 ICR 53

). The Dedman principle operates strictly where professional advisors have been engaged, and will often give rise to results which appear harsh to claimants.

[19]There may be a way out for the claimant where the failure to give correct advice was itself reasonable, see e.g. Northamptonshire County Cuncil v Entwhistle

2010 IRLR 740

, although the example given in that case is where an employer has misled the claimant and her advisor as to the date of dismissal, not a case of reasonable mistake as to the law.

[20]I have considerable sympathy with Ms Raison’s advisors in this case. Although Serra Garau is now a well-known authority, the principle it is primarily known for is that a second EC certificate will be ineffective to extend time. This is not a ‘second certificate’ case and the effect, as I have found it to be, on a case such as this is less well-known. That much is evident from the commentary in Harvey and, indeed, from the first-instance decision in Macken.

[21]I would be prepared to find it was reasonable for Ms Raison’s advisors not to conclude with certainty that limitation expired on 27 May, as I have found to be the case. However, if they had looked into the position, they would have found, at the very least, the doubt created by the conflicting first instance decisions cited by Mr Bronze. In view of that uncertainty, they could not have reasonably concluded that it was definitely safe to wait until 30 May. The only reasonable stance to adopt – as submitted by Mr England – is that the claim would have to be filed by 27 May at the latest to dispel any risk. In those circumstances I conclude that the Dedman principle does apply in this case and the claimant is bound by the advice she received.

[22]It follows that I find it was reasonably practicable to present the claim in time, and the Tribunal therefore has no jurisdiction to hear the unfair dismissal complaint.

[1]This has been a remote hearing by video which has been consented to by the parties. A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. The documents that the Tribunal was referred were numerous and included an agreed bundle, the contents of which I have recorded where relevant below. In addition, the Tribunal was provided with a skeleton argument on behalf of the first respondent, and an authority on behalf of the claimant.

[2]This is a public preliminary hearing listed earlier at the preliminary hearing held on the 10 August 2023 to “determine the admissibility of the claimant’s emails of 25th January and 31st January 2023, the claimant’s letter of 9th February 2023 and any reference to her offer made during the meeting with the 4th respondent; Nicole Coll, on 3rd March 2023.”

[3]The parties had originally intended that the issue of waiver should also be dealt with, but it became apparent when seeking clarification of the issues to be decided that witness statements and oral evidence was necessary before waiver could be determined, given the parties had conflicting versions as to what transpired at the 3rd March 2023 meeting and its aftermath, particularly with regard as to how the protected discussions were dealt with and in what way.

[4]After promulgation of this Judgment the parties will liaise and agree as to whether I need to deal with the issue and effect of any possible waiver by the claimant of the without prejudice communications referred to below, at the reconvened hearing listed for 8 May 2024. In addition and on the same day, a further private preliminary hearing dealing with case management will take place with a view to reaching a final agreement on the list of issues which has been problematic. The parties are aware of the overriding objective and the need to work together. It is in interests of all, bearing in mind the 8-day allocation for the final hearing, for a realistic view to be taken of the number of protected disclosures relied on by the claimant, which could be reduced taking into account the difficulty the claimant may have causally connecting one specific disclosures with a detriment. The claimant may be satisfied to rely on a number of the important disclosures starting with the first and then the final detriment, concentrating on those from which she will argue were causally connected to detriment, thus reducing the unwieldy schedule.

[5]I do not intend to repeat all of the oral closing submissions and refer to the Skeleton Opening Submissions prepared by Mr England that sets out the undisputed legal principles as recorded below.

The issues

[6]The following issues to be decided today were agreed as follows; 1.1 Whether the claimant’s emails of 25th January and 31st January 2023, the claimant’s letter of 9th February 2023 and any reference to her offer made during the meeting with Nicole Coll on the 3 March 2023 are admissible? Should there be any restrictions on references to relevant documents or events? Documents

[7]I have before me an agreed bundle of 352 pages that includes a number of emails and minutes of the Grievance/whistleblowing meeting amended by the claimant with her comments inserted.

Background

[8]The background to this preliminary hearing has been succinctly set out in the Case Management Summary following a preliminary hearing held on 10 August 2023 sent to the parties on 22 August 2023 which I do not intend to repeat other than to record paragraph 14 under Case Summary “Ms Raison worked for the respondent between 26th September 2022 and 17thFebruary 2023 as Chief Commercial Officer. She was dismissed on grounds of gross misconduct relating to the booking of a hotel room in the name of a junior colleague for use by a friend. Ms Raison does not dispute that she made the booking but asserts that this incident was not the real reason for her dismissal which was because of a series of disclosures she had made. Ms Raison claims she has been automatically unfairly dismissed and subjected to detriments because of those disclosures.”

[9]A public preliminary hearing took place on the 18 December 2023 it is recorded that the claimant alleges the third respondent, an agent engaged by the first respondent, subjected her to a detriment when it allegedly “failed to respond to my questions about minutes they had taken on 3rd March 2023”. A Judgment on a Preliminary Hearing was sent to the parties on the 28 December 2023 dismissing the claim of automatic unfair dismissal brought under S.103A of the Employment Rights Act 1996 (“the ERA”).

[10]Unsurprising, given there is no unfair dismissal complaint before the Tribunal, the parties agreed that there is no issue about pre-termination negotiations under s.111A ERA 1996.

[11]The claims before now the Tribunal is that the claimant (who accepts she made a hotel booking in the name of a junior colleague for use of a friend which she offered to repay when facing disciplinary proceedings) claims she was subjected to a number of detriments under section 47B ERA. There is no claim for automatic unfair dismissal or sex discrimination which are allegations the claimant included in the 25 January 2023 email referenced below.

[12]Having considered the oral submissions, the agreed bundle, and the respondent’s skeleton argument (which I have not repeated in full but attempted to incorporate within the body of this Judgment with Reasons) I have has made the following findings of the relevant facts. These “facts” are recorded for the purpose of this hearing only, and does not bind any judge at future hearings. Findings of Provisional Facts

[13]The claimant was employed as the chief commercial officer by the first respondent from 26 September 2022 to 17 February 2023 until she was summarily dismissed for gross misconduct after booking a hotel room on the 27 November 2022 payable via the first respondent’s corporate account in the name of “an ex colleague.”

[14]The matter was raised with the claimant, who according to the Grounds of Response, verbally indicated her intention to resign to Charlie Michael, chief people and sustainability officer which she followed up by an email to Carl D’Ammasa, the CEO stating she will not be at work on the 23 January 2023.

[15]It is undisputed the claimant walked out of a meeting on the 20 January 2023 and did not return to work for the respondent after that date.

[16]There followed an exchange of emails culminating in the claimant’s emails to Charlie Michael sent on the 25 January 2023 at 10.32. and 11.50 referenced below. One of the emails was sent by the claimant on the 20 January 2023 to Carl D’Ammasa, complaining about being “belittled, humiliated and indeed victimised, “ a “toxic environment” and referencing a “WhatsApp message from Charlie asking whether I intended to resign…I will be seeking some further advice and do not feel comfortable to work in this environment on Monday.”

[17]Charlie Michael emailed the claimant on the 24 January 2023 at 13.57 asking her to “establish your intentions at this point...We need to be clear on your intentions, at this time, you remain employed…” [my emphasis]. I took the view that the reference “at this time” could be interpreted to mean that there could come a time when the claimant was not employed by the respondent.

[18]The claimant emailed Charlie Michael on the 25 January 2023 concerning a number of matters including her absence, being told not to engage in business activities “until we have spoken” and that “I am in the process of taking independent advice about my employment situation and will reach out…on next steps.”

[19]The claimant sent a second email at 11.50 on the 25 January 2023 to Charlie Michael. In direct contrast to the earlier email it was clearly marked in bold “Without Prejudice & Subject to Contract.” The claimant wrote: “I have now been able to properly consider my position and to take some advice since the turbulent events of last week…I’m now at a bit of a cross-roads. On the one hand, it’s clear that I could pursue the legal route (formal whistleblowing complaint, resignation followed by whistleblowing related automatically unfair dismissal claim, sex discrimination complaints, data subject access requests etc)…this route would undoubtedly be disruptive, distracting and could result in public proceedings which could have reputational and regulatory implications…On the other hand I could follow a more pragmatic and constructive option…would involve me leaving the business on agreed terms…” The claimant set out the “proposed arrangements” which including ending employment on the 31 January 2023 and a substantial financial settlement including “payment of all reasonable legal costs.” The claimant attached a further copy of the 25 January 2023 email to an email sent on 31 January 2023 at 12.47 marked “Without prejudice and Subject to Contract.”

[20]The claimant sent the respondent under the heading a “Letter on Detrimental Treatment I Have Experienced Following Protected Disclosures made under the Public Interest Disclosure Act 1998” (“PIDA”) on 9 February 2023 referring to a meeting with Nicola Coll on 30 January 2023, discrimination, detrimental treatment and the disclosures allegedly made, the “serious allegations” and disciplinary investigation facing the claimant . The letter totalled 26 pages of allegations and accusations including the claimant’s view of a possible report to the Financial Conduct Authority (“FCA”) the conduct regular relevant to the respondent and her own employment with it. The letter refers to an email from Nicole Coll sent Tuesday 31 January 2023: 12:30pm and the following “Nicole then introduced Charlie’s presence as they wished to have a protected conversations with me, to which I agreed. Charlie then explained that Nicole’s role would continue investigating my concerns and that she would not be part of any ongoing protected conversations. The meeting concluded with Charlie stating that she would speak to the chairman with regards agreeing a Without Prejudice offer for her to leave the business by mutual consent.”

[21]The investigation into the alleged gross misconduct continued.

[22]The claimant attended a “whistleblowing/Grievance Hearing” on 3 March 2023 with Nicole Coll. Notes were taken by a notetaker. There are two versions in the bundle, the respondent’s notes and notes to which the claimant had made additions. I have read both versations. In the respondent’s version there is a reference to the following “CR asked for clarification as she was aware the protected conversation had been paused. NC clarified that the protected conversation was a separate process.”

[23]In the second version annotated by the claimant the claimant referred to the letter of 9 February 2023 but there was no reference to the without prejudice offer and protected conversations until later in the note (p.336 in the bundle) when the claimant inserted the following: “NC…made a reference to the protected conversation being paused. CR stated that NC was now bringing in a third process… CR repeated her question that yes the protected conversation was being paused whilst an investigation into the conduct of CR was ongoing…NC clarified that the protected conversation was a separate process.”

Relevant Law

[24]The relevant law is undisputed between the parties, and I have followed the legal principles as referenced and expanded by Mr England in his Skeleton Argument and Mr Bronze in oral closing submissions who provided copies of the case law. I am grateful to both Mr England and Mr Bronze for the clarity in which they have set out the relevant law.

[25]The EAT in Faithorn Farrell Timms LLP v Bailey

[2016] ICR 1054

[2016] IRLR 839

(paras. 30-31) held: “The principle provides that where there is a dispute between parties, any written or oral communications between them amounting to a genuine effort to resolve the dispute will not generally be admitted in evidence at a subsequent hearing of the claim. This enables parties to negotiate frankly without the risk that anything said in negotiations will be used against them in subsequent legal proceedings. Without prejudice privilege is, however, not invoked merely by the parties’ description of negotiations as such: if there is no extant dispute, or no genuine efforts at resolving the dispute, the rule will not apply, regardless of the label used. Conversely, absence of the label “without prejudice” will not be fatal if the negotiations meet these criteria: the principle is one of substance, not form. Given that without prejudice privilege renders inadmissible evidence that might otherwise have been considered probative of the issues to be determined in subsequent legal proceedings, the confidentiality thus bestowed should not be extended further than necessary to promote the general policy objective (Barnetson v Framlington Group Ltd

[2007] 1 WLR 2443

CA). Where the line will fall may not always be easy to determine. As Mr Rees contends, it may include the broader discussions between the parties: the positioning, not solely the offer (South Shropshire District Council v Amos

[1987] 1 All ER 340

). If those broader discussions are, however, not properly to be described as part of such negotiations, then I do not read the decision in Amos as saying that they will still be covered. Mr Milsom seeks to draw upon the European Convention of Human Rights to argue against a broad approach to the privilege against admissibility. Whilst I agree that respect for Convention rights should underline the need to apply the without prejudice principle with restraint (see, obiter, paragraph 27 Prudential Assurance Company Ltd v Prudential Insurance Company of America

[2002] EWHC 2809 (Ch)

), that seems to me to be reflected in the balance already struck under domestic law (Barnetson)” (my emphasis).

[26]Drawing the legal principles together there has to be a dispute and confidentiality must not be extended further than necessary. There has to be a dispute.

[27]There can be a dispute even though there is no litigation, see the Court of Appeal in Barnetson (above) in particular at paragraphs 22 to 35. The key consideration is whether in the course of negotiations the parties contemplated or might reasonably have contemplated litigation if they could not agree (my emphasis).

[28]The rule of evidence that without prejudice communications are privileged from disclosure and inadmissible in evidence applies to proceedings before an Employment Tribunal: BNP Paribas v Mezzotero [2004] 509, EAT. The EAT held that the employee’s raising of a formal grievance did not bring subsequent negotiations between employer and employee within the ‘without prejudice’ rule. The facts of the case were as follows. M raised a formal grievance and was called to a meeting. Upon entering the room she was informed that the discussion would be ‘without prejudice’ and that the meeting was independent of her formal grievance. M was told that her job was no longer viable, that there was no other position available in the bank, and that it would be best for both parties if her contract was terminated. She was also told that the matter would be regarded as a redundancy rather than a termination, and was offered a settlement package. M did not agree to the package and in March 2003 brought several claims, including sex discrimination. In the EAT’s view, the act of raising a grievance does not by itself mean that parties to an employment relationship are necessarily ‘in dispute’ and it unrealistic to conclude that the parties had expressly agreed to speak ‘without prejudice’ given their unequal relationship, the vulnerable position of the claimant in such a meeting, and the fact that the suggestion was made by the employer only once that meeting had begun” (my emphasis). The EAT held that the tribunal was entitled to conclude that by the time of the meeting there was no existing dispute between the parties. The meeting was not a genuine attempt to settle, as M’s grievance concerned her discriminatory treatment whereas the meeting was concerned with terminating her employment. The ‘without prejudice’ rule did not, therefore, apply to prevent the statements made at the meeting being admissible in evidence before the tribunal.

[29]For a communication or discussion to fall within the without prejudice rule it is not essential that the words “without prejudice” be used as long as it is clear that the discussion was aimed at seeking to compromise a matter in dispute: Rush and Tompkins Limited v Greater London Council

[1989] AC 1280

at 1299H per Lord Griffiths). As recorded in the finding of facts above, the claimant clearly understood she was seeking to compromise the future threat of litigation relating to sex discrimination and whistleblowing detriment, resolving the impasse caused by her decision not to return to work pending a negotiation of her exit from the business on suitable financial terms. There has to be an attempt to settle the particular dispute that has been raised.

[30]Mr England referred to IDS at Volume 9 - Practice and Procedure I: Employment Tribunals, Chapter 15 – Evidence, Evidence of settlement negotiations, ‘Without prejudice’ negotiations, para. 15.90: At first glance, there may appear to be inconsistency between the Court of Appeal’s decision in Barnetson and the EAT’s decision in BNP Paribas v Mezzotero (above). The former appears to suggest that most parties can reasonably be expected to have contemplated litigation by the time a formal grievance has been raised, whereas the latter suggests that the mere fact that a grievance has been raised does not necessarily mean that there is a dispute in existence. However, any difference is best explained by concluding that the ‘without prejudice’ rule can only apply in relation to correspondence that seeks to settle the particular dispute that has been raised. In Barnetson, the ‘without prejudice’ correspondence related to B’s claims arising out of the termination of his employment. The dispute related to B’s employer’s proposal to terminate his employment early and so, if the parties contemplated litigation in relation to the dispute, it would have been about termination of employment. In the Mezzotero case, by contrast, if there was an extant ‘dispute’ at the time of the meeting, it arose out of M’s grievance about her perceived treatment on return from maternity leave. The employer therefore could not invoke the ‘without prejudice’ rule in relation to its out-of-the-blue proposal to terminate her employment. In so far as M might have contemplated any litigation at that stage, it would have been a claim of discrimination, which would not depend on the termination of her employment. Thus, although there might have been an extant dispute about discrimination, there was no extant dispute about termination, and so the employer could not claim ‘without prejudice’ protection.

[31]Mr England submitted that the Tribunal is therefore required to identify if there was a dispute at the relevant time, if so what was the dispute and then is that the same as the dispute about which the claimant claims the without prejudice protection. Conclusion: applying the law to the facts and incorporating submissions made on behalf of the parties

[32]I have taken into account the factual matrix in which the claimant’s emails were sent in addition to the words written in the communications satisfied that there was a dispute between the parties as clearly set out in the claimant’s email of 25 January 2023, the identical copy email dated 25 January 2023 attached to the second email sent on the 31 January 2023 and the references to “protected conversations” in the letter of 9 February 2023 and both sets of the notes taken at the 3 March 2023 meeting.

[33]Turning to Framlington (above) the Court of Appeal in the judgment of LJ Auld paras. 22 onwards dealt with the “without prejudice” rule which to give “full effect to the public policy underlying it, a dispute may engage the rule, notwithstanding that litigation has not yet begun”- para. 27 and “A good instance of the working of the rule can be seen in the “opening shot” cases, in which an initial proposal in negotiations before commencement of proceedings may be protected by the privilege” – para.29. “Early settlement of disputes is as important in the employment field as elsewhere, notwithstanding the existence of special provisions governing compromise of statutory employment claims. Such restrictions do not bear on the “without prejudice” nature of communications arising in proceedings to which they apply” – para. 31. “The claim to privilege cannot, in my view, turn on purely temporal considerations. The critical feature of proximity for this purpose, it seems to me, is one of the subject matter of the dispute rather than how long before the threat, or start, of litigation it was aired in negotiations between the parties. Would they have respectively lowered their guards at that time and in the circumstances if they had not thought or hoped or contemplated that, by doing so, they could avoid the need to go to court over the very same dispute? On that approach, which I would commend, the crucial consideration would be whether in the course of negotiations the parties contemplated or might reasonably have contemplated litigation if they could not agree” – para.34.

[34]The principles set out in Framington assists the claimant, given the fact that the “without prejudice” communication was her attempt was an “opening shot” to settle litigation threatened if the respondent did not agree to meet her terms, and that is exactly what unfolded in this case after the claimant was summarily dismissed on the grounds of gross misconduct with no settlement proposals offered by the respondent. The claimant made it very clear that litigation would take place in the future if the impasse relating to her employment was not settled in accordance with the terms she proposed.

[35]I took the view that Ms Raison’s case can be differentiated from the circumstances set out in Paribas (above) as there was a dispute between the parties at the time of the discussion, the claimant had threatened to resign and had made it clear she no longer wanted to work for the respondent, which culminated in the claimant’s attempt to negotiate her exit with a substantial lump sum payment the alternative being the threat of public embarrassment for the respondent, involvement of the regulator, litigation and legal costs. It is notable that on the 25 January 2023 the claimant sent two emails to the respondent, one unmarked and the other clearly highlighted and described as “Without Prejudice subject to the Contract” having taken legal advice (hence the reference to repayment by the respondent of her legal costs) in the knowledge that the communication was a genuine attempt to settle and privileged. In contrast to the claimant in BNP Paribas (above) the claimant’s opening gambit was a genuine attempt to settle because she no longer wished to remain employed by the respondent either as a result of the disclosures she had made coupled with allegations of discrimination and/or because she was facing a disciplinary investigation that could have resulted in her dismissal and report to the financial services regulator. This was not the case of a naïve employee being taken by surprise at a grievance meeting when without prejudice discussions took place without notice, and I conclude given the clear heading to the 25 January 2023 email the claimant, having taken advice, was fully aware that she was proposing what was described after as a “protected conversation,” in other words, financial settlement and an exit strategy against the threat of litigation, and the respondent understood a dispute existed between them which could be compromised..

[36]As recorded in the finding of facts above, the claimant clearly understood she was seeking to compromise the future threat of litigation relating to sex discrimination and whistleblowing detriment, resolving the impasse caused by her decision not to return to work pending a negotiation of her exit from the business on suitable financial terms. The claimant made it clear her communications were “Without prejudice & Subject to Contract” having taken legal advice and I infer that she set the ball rolling in the full knowledge of the protection that these words will provide to both parties when they are attempting to negotiate a compromise including speaking freely and without inhibition (as evidenced by the contents of the second 25 January 2023 email) without concern that what is said or written may be used against them in any ensuing litigation. There was clearly a dispute and the discussion was aimed at seeking to settle the dispute: Rush and BNP Paribas referred to above. The 25 January 2023 email was sent against the factual background of the claimant refusing to return to work, and only possible way forward was either disciplinary proceedings resulting in dismissal on the grounds of gross misconduct or resignation on the part of the claimant who was being investigated and time was running out if she wanted to avoid being dismissed given the seriousness of the misconduct alleged and the claimant’s offer to repay the hotel costs, with the likely outcome being Employment Tribunal proceedings for discrimination and detriment as threatened. This is exactly the scenario that without prejudice meetings cover with a view to a settlement agreement being reached. By the time the respondent received the 25 January 2023 email litigation was in the minds of the parties and I accepted the submission put forward by Mr Bronze the only sensible reading was that there was a dispute following the claimant walking out of a meeting and refusing to return to work due to the “toxic” environment with resignation a distinct possibility followed by litigation. Mr Bronze described it as the Normura case in reverse, and I accepted that the claimant does not have to resign for a dispute or a potential dispute to be reasonably contemplated by both parties given the factual matrix.

[37]Mr England submitted that it was unclear when the “dispute” had arisen and “at best, there could be said to be a dispute about termination of employment, which was not relevant as the claim for automatic unfair dismissal had been dismissed and the claimant had not brought a claim of sex discrimination. I concluded the “proposed arrangements” suggested by the claimant in the 25 January 2023 email included what she described as a “formal whistleblowing complaint” and whilst there is no specific reference to detriment or injury to feelings, the claimant demanded an ex gratia sum and made it clear that if her demands were not met she would “pursue a legal route; a formal whistleblowing complaint. Mr England is correct that this is a statement that litigation could occur in the future, however, there is no requirement for proceedings to have been issued; “The key consideration is whether in the course of negotiations the parties contemplated or might reasonably have contemplated litigation if they could not agree” Framington (above).

[38]Taking into account the principles set out by the Court of Appeal in Framington (above) in cases where litigation has not started, the ambit of the "without prejudice" rule should not be extended any further than is necessary to promote the public policy interest underlying it, namely to encourage parties to a dispute to settle their differences without recourse to litigation, I accepted the submission put forward by Mr England that referring to the words “protected conversation” may not necessarily fall foul of the without prejudice rule, however in this case there is clearly a link between the 25 January 2023 email and to the use of the words “protected conversation.” The email sent on 29 January 2023 falls under the same protection as the 25 January 2023 email, the letter dated 9 February 2023 and two sets of the notes of meeting dated 3 March 2023 have a very limited protection despite the fact that they do not mention any specific settlement details/proposals and refer only to the words a “protected conversation” being outside the ambit of the 3 March 2023 meeting. I accept Mr England’s submission that having found that an aspect of the relevant document cannot be disclosed, I should proceed to specify the without prejudice communication which is to be redacted. I have minimised as best as possible the impact of the without prejudice rule on the documents and pleadings in this case, and evidence to be given at the final hearing giving effect to the public policy interest of encouraging disputing parties to explore settlement and avoid litigation in the courts and employment tribunal. The documents that are to be redacted and the information that is not to be referred to in evidence.

[39]Following the same numbering as that set out in the preliminary hearing bundle parts of the claimant’s letter dated 25 January 2023 and the pleadings will be redacted as follows if it is found at the next preliminary hearing that the claimant had not waived privilege: Grounds of Resistance 40.1 Grounds of Resistance – PARA.15.12 will be redacted to delete the reference to para. 25 and from “WITHIN THAT EMAIL SHE SETS OUT VARIOUS SUMS OF MONEY SHE WOULD BE WILLING TO ACCEPT…DISCRIMINATION” and “THIS EMAIL IS SUBSEQUENTLY REFERRED TO BY THE CLAIMANT AT VARIOUS POINTS” to “WAIVED ANY PRIVILEGE.” Para.15.18 in its entirety. Para.51 from “and then a second email setting out”…to “cyber security system.” Para.92.4 from “and the First Respondent’s refusal…” to “money.” Paragraph 102.3 of the Grounds of Resistance from “AND THE FIRST RESPONDENT’S REFUSAL TO PAY THE CLAIMANT SUBSTANTIAL SUMS OF MONEY.” Para.109.12 from “if the first respondent” to “exit terms”. I propose that the clause is redrafted to delete the financial agreement reference but making it clear the claimant had a regulatory responsibility as a senior manager to raise whistleblowing concerns formally and she did not do so without any reference being made to the settlement proposal. The drafting is a matter for the respondent. Para. 109.2 from “and the First respondent’s refusal” to “money.” Para. 117 from “and after she had” to “25 January 2023.” Para. 128.3 from “she instead chose” to “that” and it is proposed that the final sentence reads “There was no interest or desire on her part to return to her role.” Amended Grounds of Resistance The following is to be redacted;

[41]Paragraph 14.12 of the Amended Grounds of Resistance; will be redacted from “WITHIN THAT EMAIL SHE SETS OUT VARIOUS SUMS OF MONEY SHE WOULD BE WILLING TO ACCEPT…DISCRIMINATION” and “THIS EMAIL IS SUBSEQUENTLY REFERRED TO BY THE CLAIAMNT AT VAROIUS POINTS” to “WAIVED ANY PRIVILEGE.” Para. 14.18 in its entirety.

[43]Para.50 from “and then a second email setting out”…to “cyber security system.”

[44]Para.87.4 from “and the First Respondent’s refusal…” to “money.”

[45]Para.98.5.2 from “if the first respondent” to “exit terms”. I propose that the clause is redrafted to delete the financial agreement reference but making it clear the claimant had a regulatory responsibility as a senior manager to raise whistleblowing concerns formally and she did not do so without reference to the settlement proposal. The final drafting is a matter for the respondent.

[46]Para.98.6 from “and the First respondent’s refusal” to “money.”

[47]Para. 108.3 from “and the First respondent’s refusal” to “money.”

[48]Para.115.1.2 from “if the first respondent” to “exit terms”. I propose that the clause is redrafted to delete the financial agreement reference but making it clear the claimant had a regulatory responsibility as a senior manager to raise whistleblowing concerns formally and she did not do so without reference to the settlement proposal. The drafting is a matter for the respondent.

[49]Para. 115.2 from “and the First Respondent’s refusal to pay the Claimant substantial sums of money.”

[50]Para. 123 from “and after she had requested a financial settlement on 25 January 2023.”

[51]Para.134.3 of the Amended Grounds of Resistance (not 134.4) from “She instead chose to send exit terms to the Respondent on 25 January 2023 showing that there was no interest or desire on her part to return to her role.” THE CLAIMANT’S EMAIL SENT ON 25 January 2023.

[52]The claimant’s email marked “without Prejudice & Subject to Contract” sent on the 25 January 2023 is to be redacted as follows; The heading.

[54]Paras. 2, 3, 4 and 5 to in their entirety. The claimant’s letter on detrimental treatment etc 9 February 2023 The following is to be redacted:

[56]All references to a protected conversation in the letter of 9 February 2023 at pages 306 and 307 of the previous hearing bundle; titled “LETTER ON DETRIMENTAL TREATMENT I HAVE EXPERIENCED FOLLOWING PROTECTED DISCLOSURES UNDER THE PUBLIC INTEREST DISCLOSURE ACT 1998 (PID) para. commencing on Tuesday 31 January 2023” will be redacted: (a) from “AND THAT CHARLIE’S PRESENCE AT THE MEETING WAS PURELY TO INITIATE A ‘POROTECTED CONVERSATION’ WITH ME” and “CHARLIE CONFIRMED THAT HER ROLE WAS TO PURELY HOLD A ‘PROTECTED CONVERSATION’ WITH ME” through to THAT CONVERSATION GOING FORWARD.” (b)The reference under the date 2 February 2023 will be redacted as follows: “CHARLIE THEN STATED” through to AS NEW INFORMATION HAS COME TO LIGHT.

[57]Under the heading “31 January 2023: 12.0pm” para. 1 from “As they to have a protected conversation with me, to which I agreed.”

[58]Para.2 from “and that she would not be part of any ongoing protected conversations. The meeting concluded with Charlie stating” to “by mutual consent.”

[59]Under the heading “Thursday 2nd Feb 2023 9.55am from “I was surprised” to “leaving the business.” The notes of the “Whistleblowing/Grievance Hearing with Ciara Raison 3 March 2023 including the second version amended by the claimant as highlighted in yellow.

[60]The following is to be redacted including all references to the protected conversation being a separate process and to the protected conversation being paused:

[61]Page 336 bottom para from “and made reference to the protected conversation being paused. CR stated that NC is now bringing in a third process and that was not what CR was asking. CR repeated her question that yes the protected conversation was being paused.”

[62]Page 337- all references to the protected conversation and pausing the protected conversation should be redacted.

[63]All references to a protected conversation in the notes of the “Whistleblowing/Grievance Hearing with Ciara Raison 3 March 2023 including the second version amended by the claimant as highlighted in yellow” at pages 325 and 335 of the previous hearing bundle will be redacted as follows; “CR ASKED FOR CLARIFICATION” through to “NC CLARIFIED THAT THE PROTECTED CONVERSATION WAS A SEPARATE PROCESS. The next steps in this litigation

[64]We discussed the next step in this litigation leading to the preliminary hearing listed for 1-day on the 8 May 2024 which is to take place before myself via CVP. The issue to decided is whether the claimant waived the without prejudice effect by referring to the offers openly at meetings. This was a matter which could not be dealt with at the first preliminary hearing given the conflicts in the evidence between the parties which can only be resolved when oral evidence is given and the contemporaneous documents relevant to this issue referred to. The parties should take a realistic view of the contemporaneous documents, including the two versions of the 3 March 2023 meeting notes and question whether a preliminary hearing is required in accordance with the overriding objective, given the complexity of this litigation so far. It appears that the question of the claimant waiving privilege refers to the meeting of 3 March 2023, which I understand to have been conducted by an employee of the respondent, and I query how the claimant can waive the without prejudice communications by making reference in that meeting with that manager to a ”protected conversation” and “protected conversation being paused.2 I have no doubt that the parties will assist me in resolving this issue, both in their witness statements and written submissions together with copy case law/legal principles highlighted where relevant.

[65]In conclusion, all claims against the second respondent Carl D’Ammassa are dismissed on withdrawal. The claims remain against the first and third respondent only, and the second respondent no longer has any interest in these proceeding. The emails dated the 25 and 31 January 2023 are without prejudice and subject to the without prejudice rule for the purpose of the detriment claim brought under section 47 B of the Employment Rights Act 1996.

[66]The claimant’s letter of 9 February 2023 and the two versions of the 3 March 2023 meeting notes are redacted in part limited to when there is a reference to a protected conversation and the protected conversation being paused. Case Management Orders

[67]It was also agreed that I would issue case management orders leading to the next preliminary hearing which are as follows: 1. The parties will jointly confirm to the Tribunal that the redactions set out above are the only ones required I order to comply with the judgment in this case no later than 2 April 2024. 2. The respondent will send to the claimant no later than 2 April 2024 a witness statement from the relevant witness detailing how the claimant waived the effect of the without prejudice rule, no later than 2 April 2024. 3. The claimant will send to the respondent a witness statement detailing how she did not waive the effect of the without prejudice rule, no later than 2 April 2024. 4. Both parties will refer to the relevant documents in an agreed bundle in their witness statements. 5. The parties will exchange Skeleton Arguments including copies of case law/legal principles, highlighted where relevant, no later than 16 April 2024. 6. The parties will agree a list of issues for the preliminary hearing and a draft list of issues for the final hearing in order that a case management discussion can take place after a decision is made on waiver, for final agreement. The draft list of issues will not include the automatic claim for unfair dismissal and will relate only to protected disclosures and detriments. This document will be provided no later than 23 April 2024. 7. The parties will agree provisional case management orders leading to the final hearing starting on the 22 April 2024 that includes a list of witnesses they intend to give evidence, the relevance of their evidence and how long they are likely to be giving evidence for. I will be exploring whether the 8 day hearing allocation can be reduced by agreement without any risk of it going part-heard, which will be of benefit for both parties. 20.3.24

Background

[68]By the time this application was made, there were only two items in the schedule which remained in dispute. One was an alleged detriment of “failing to take the claimant’s whistleblowing concerns seriously and not investigating these”. I do not know if the parties have yet agreed whether or not this alleged detriment is discernable from the pleadings. Disputes as to whether particular allegations appear in the pleadings on a fair reading, or require an application to amend, are not unusual, particularly where both parties are represented. In the broad context of this claim, this seems to be a very minor dispute. The second disputed item was the claimant’s inclusion of dismissal as a detriment. For reasons which I have already elaborated on at some length, I find it was wrong of the respondent to seek to pre-emptively exclude that complaint from the claimant’s schedule (and therefore from the list of issues). Whilst I have no doubt that it had taken longer than would be ideal to get there (which the claimant’s representatives acknowledge), the legitimate scope of the respondent’s non-compliance complaint by this point was therefore vanishingly small. That is reflected in the fact that the only Unless Order sought by now, was the prospective order, designed to put the claimant and her representatives at permanent risk of strike out throughout the life of the case.

[69]The letter then went on to lay out the respondent’s application for (unquantified) “wasted costs”. It asserted that the claimant had acted unreasonably in the conduct of proceedings and specified that unreasonable conduct in eight bullet points. These points essentially all related to the production of the disclosure schedule and the list of issues.

[70]I directed that the costs application would be considered today and ordered the respondent to produce a schedule of costs, making provision for the claimant to be able to give evidence as to her means.

[71]A costs schedule was duly produced which documents all of the respondent’s representative’s work in connection with the clarification of the issues from January 2024 to June 2024. There is clearly some other work included – for example the preparation of the preliminary hearing bundle. The total comes to £11,842 (excluding VAT).

[72]The claimant was a very high earner in her job with the respondent (I do not know her previous employment history, nor whether she has obtained alternative employment). In any event, she elected not to put forward any argument today that costs should not be awarded, or should be awarded at a reduced amount, based on her means.

The Law

[73]The provisions as to costs orders are contained in Rules 74-84 Employment Tribunal Rules of Procedure 2013. (As in Part I of this Judgment, I refer to the 2013 Rules, which were in force at the time of the hearing, rather than the 2024 Rules, which came into force following the hearing, but before this Judgment will be issued). I do not set the costs rules out, but have had regard to them in full.

[74]Mr England’s skeleton confirmed that the respondent’s application was primarily made under Rule 76(1)(a) which provides that the Tribunal may make a costs order where a party, or that party’s representative, has acted vexatiously, abusively, disruptively, or otherwise unreasonably in the way the proceedings have been conducted. In the alternative, he relied on rule 80, which provides that a costs order may be made directly against a representative in certain circumstances. In reality, Mr England focused on the Rule 76(1)(a) test given that the claimant’s representatives defended the application on its merits and did not, in Mr England’s words “fall on their swords” .

[75]Mr Bronze reminded me that that costs are the exception in this jurisdiction and that there is a high threshold in establishing unreasonable behaviour: Gee v Shell UK Ltd

[2003] IRLR 82

and Salinas v Bear Stearns International Holdings Inc

[2005] ICR 1117

[76]I reminded myself that rule 76 creates a three-stage test in these circumstances. I must firstly consider whether the conduct threshold has been passed. If so, there is a discretion to award costs, but it is not mandatory to do so. (Indeed, it is exceptional to do so.) At the second stage I must therefore decide whether it is appropriate to exercise that discretion in the circumstances of the case before me. If it is, then the third and final stage is to decide the amount of the costs to be awarded.

[77]In determining whether to make an order, I must take into account the nature, gravity and effect of the unreasonable conduct, and ensure that I am looking at the whole picture: Yerrakalva v Barnsley Metropolitan Council

[2012] ICR 240

. Submissions

[78]Mr England asserted there had been disruptive or otherwise unreasonable conduct from the claimant which he summarised as being “C has failed repeatedly to comply with Tribunal Orders, engage productively with R and in general co-operate and comply with R or the ET to advance her claim. This has led to unnecessary costs being incurred and the situation now of a fifth PH and still no final identification of C’s claims”. In his oral submissions, Mr England elaborated with reference to the chronology set out above.

[79]Mr Bronze asserted that the high threshold of unreasonable conduct had not been met, and pointed out that it was for the Tribunal, not the respondent, to determine what was properly to be included in the list of issues. Mr Bronze made detailed submissions on the Tribunal’s wasted costs jurisdiction, which I have, with respect, not set out given that the focus of the respondent’s attack was Rule 76(1) and there was no serious case advanced for wasted costs under Rule 80. Discussion and conclusion

[80]I am satisfied that the claimant and/or her representatives have acted unreasonably (to the high threshold required to engage Rule 76) in one respect. It was unreasonable to fail to provide the Schedule of disclosures and detriments by 31 May 2024 in accordance with Employment Judge Shotter’s ‘last chance’ order. To the extent that compliance was made difficult or impossible due to counsel’s illness, it was incumbent on the claimant to keep the respondent informed of this, and make a timely application for an extension. This is particularly so given the prior history of non-compliance and the ‘last chance’ nature of the order.

[81]I am not satisfied that any other action by the claimant or her representative was unreasonable, in the sense of going significantly beyond what is commonly encountered in the conduct of Tribunal litigation, although the backdrop of general delay and non-compliance informs my decision that the failure to comply with the ‘last chance’ order crossed the conduct threshold set out by the Rules.

[82]That breach also engages Rule 76(2), although that was not expressly relied upon by Mr England for the respondent.

[83]On either basis, I am satisfied that this is a case in which the Tribunal “may” award costs.

[84]Despite that, I have concluded that it would not be an appropriate exercise of discretion to grant this application. Looking at the whole picture, this is a potentially valuable claim which has been hard fought on both sides. It is relevant that the claim is not yet concluded, and there have been no findings as to the substantive merits of either the claim or the response. The parties are very much in the ‘fog of battle’. Although criticisms of a parties’ conduct may be meritorious irrespective of the merits of the underlying case, it is easier to assess such criticism against the backdrop of clear merits findings. For example, a claimant who causes procedural delays to deliberately prolong a weak case will be viewed more critically than a claimant who disadvantages herself by delaying the progress of a strong case due to a lack of diligence. I cannot say which category this claimant falls into.

[85]Against that backdrop, it is relevant the respondent has also engaged in conduct which can properly be criticised. Two specific examples, which are both relevant to the main complaint levelled against the claimant, are the attempt to exclude the claimant’s pleaded claim of dismissal-asdetriment from the list of issues, and the application (made twice) for an Unless Order to remain at large for the remainder of the proceedings.

[86]In respect of the second point, the Unless Order terms proposed were beyond unusual and, to my mind, would be preposterous. Whilst I can appreciate the respondent’s frustration with the claimant’s tardiness in various matters, the respondent’s proposal that such an order be made lends credence to the claimant’s sense that the respondent is conducting the litigation in an overly-aggressive and non-cooperative manner. To the extent that ay costs were wasted in applying for an order in such terms, that lies entirely at the respondent’s door.

[87]There has been ‘a lot going on’ in this case. It is not unusual for orders not to be complied and for it to take far longer than might be expected to clarify the issues in the case. That is not to say that either of those situations are acceptable, but I am not persuaded that the criticism that can fairly be levelled at the claimant and her representatives justifies the exceptional step of awarding costs, when set in the context of the case as a whole. The application therefore fails. It is unnecessary to consider the third stage of the process, and determine the amount of costs to be awarded.

[88]Finally, I would again urge both parties to try to make a more constructive and cooperative approach going forward, endeavoring to ensure that case management orders are complied with in a timely way, and that proper steps are taken to communicate any difficulties or need for adjustments.

Introduction

[1]The claimant was employed by the respondent from 26 September 2022 until 17 February 2023. She was the Chief Commercial Officer, a member of the senior management team, and held a senior management function. The claimant alleged that she made protected disclosures to the respondent and that she was treated detrimentally as a result. The respondent denied that she made protected disclosures and denied detrimental treatment. Claims and Issues

[2]The case had a very long and complex procedural history, much of which it is not necessary for us to address in this Judgment. Prior to this hearing, there had been six preliminary hearings (one of which was also a reconsideration hearing). The claimant had also brought her claim against four others who were no longer respondents as at the date of this hearing (three individuals and a company). The claimant had also brought a claim under section 103A of the Employment Rights Act 1996 against the respondent for automatic unfair dismissal, but that claim had been dismissed.

[3]At the sixth preliminary hearing held on 7 November 2025, an agreed list of issues had been provided and discussed. The issues to be determined were appended to the case management order made following that hearing. At the start of this hearing, the parties agreed that those were the issues which we needed to determine. The respondent believed that one of the issues repeated another and was unnecessary, but it was confirmed that it was content for that to be the final list of issues even though it contended that was the case. The list of issues was included in the bundle (366ss) and is attached as an annex to this Judgment.

[4]The list of issues recorded that eight alleged protected disclosures were relied upon by the claimant (the list recorded five numbered protected disclosures, but some of them were in practice multiple alleged disclosures). Those alleged disclosures were recorded in more detail in a disclosure schedule which the claimant had prepared (366bb), which recorded more detail than the list of issues. It was confirmed and agreed that was the relevant disclosure schedule which we were required to consider, not the disclosure schedule which had been appended to the claimant’s witness statement.

[5]The hearing was listed to determine liability issues only and not remedy. At the start of the hearing the respondent’s counsel proposed that we should also determine the following issues alongside the liability issues, even thought they were technically remedy issues: whether the detriment would have happened anyway (being effectively a Polkey argument in a slightly different context); whether the conduct of the claimant contributed to the detriment of dismissal (if that was something able to be argued); and any argument relying upon good faith. The claimant’s counsel questioned whether the latter had been pleaded but accepted that we should determine those remedy issues at the same time as the liability issues.

[6]At the start of the sixth day of the hearing, the respondent’s counsel explained that he had identified that there were jurisdiction issues which also needed to be determined, which were not included in the list of issues. There was no dispute that we needed to determine those issues (being issues of jurisdiction). The claimant’s counsel confirmed that the claimant was arguing that the acts were part of a series of similar acts or failures with those brought within time, the claimant was not arguing that it had not been reasonably practicable for the claim to have been entered earlier.

Procedure

[7]Both parties were represented by experienced counsel at the hearing.

[8]The hearing was conducted in-person with both parties and all witnesses attending in-person at Manchester Employment Tribunal.

[9]We were provided with a very significant agreed bundle of documents which ran to page 1252 (albeit the bundle was in practice much larger as there were a significant number of pages which were included using sub-numbering). Where a number is referred to in brackets in this Judgment (including where referred to with the accompanying letters used for sub-numbering), that is a reference to the page number in the bundle. We read only the documents in the bundle to which we were referred, including in witness statements or as directed by the parties.

[10]We were provided with witness statements from the witnesses who were called to give evidence. On the first day, after an initial discussion with the parties, we read the witness statements and the documents referred to. We were also provided with an extensive reading list. The parties suggested that we focused on reading the pages referred to in the witness statements when we undertook our reading.

[11]We were provided with a chronology and a cast list.

[12]We heard evidence from the claimant, who was cross-examined by the respondent’s counsel, we asked her questions, and she was re-examined. Her evidence was heard during the second and third day.

[13]We heard evidence from each of the following witnesses called by the respondent. They were each cross-examined by the claimant’s counsel, and (where required) we asked questions and they were re-examined. The respondent’s witnesses’ evidence was heard on the fourth, fifth, sixth and seventh days. The respondent’s witnesses were: 13.1. Mr Carl D’Ammassa, Chief Executive Officer; 13.2. Mrs Jodie Abbott (previously Waddington), former Programme Manager (who left the claimant’s employment in approximately June 2024); 13.3. Mr Tomas Oliveria Da Silva, Chief Risk Officer and designated officer for whistleblowing; 13.4. Miss Karen D’Souza, General Counsel and Company Secretary; 13.5. Mrs Nicole Coll, Non-executive Director and Whistleblowing Champion; 13.6. Mr Gavin Morris, Chief Financial Officer; and 13.7. Ms Charlotte Michael, at the relevant time Chief People and Sustainability Officer.

[14]After the claimant had given evidence, during the evidence of Mr D’Ammassa, the respondent sought to add to the bundle an additional document which it had identified and disclosed during his evidence. The claimant objected to it being added to the bundle, and her counsel explained why she did so. We decided that the document would not be admitted, applying the overriding objective and, in particular taking account of the fact that the claimant’s evidence had finished, we did not consider it to be fair to allow the particular document to be admitted at that point in the hearing.

[15]After the evidence was heard, each of the parties was given the opportunity to make submissions. They each made their submissions both in writing and orally.

[16]The time allocated was not sufficient for us to hear all the evidence and submissions and reach a decision. We accordingly reserved our judgment. We informed the parties of the date of the additional day in chambers which we had arranged to reach our decision. We used the remainder of the eighth day of hearing and the additional day taken in chambers to reach our decision.

[17]As our Judgment was reserved, the Judgment and the full written reasons are contained in this document.

Facts

[18]The claimant was recruited by the respondent as Chief Commercial Officer and she commenced employment on 26 September 2022. She was a member of the senior management team. She reported directly to the Chief Executive Officer. In her role, she was accountable as the senior manager under the FCA’s senior managers and certification regime responsibilities. There was no dispute between the parties that the nature of the claimant’s role and responsibilities meant that she was in a particularly trusted position and was obliged to accord with regulatory obligations, including reporting matters to the regulator in certain circumstances.

[19]The respondent is a relatively small employer for a bank, but not a microemployer. At the material time, the respondent had something in the region of one hundred to one hundred and twenty employees. The respondent had one and a half people in the People team, in addition to the Chief People Officer. It was the evidence of the respondent’s witnesses that, due to the size of the respondent’s business, the senior employees needed to undertake duties, and become involved in matters, which they would not have done had they been in their role in a much larger organisation.

[20]We were provided with an extract from the respondent’s employee handbook which included the grievance procedure (982) and the disciplinary policy (986). The procedures were relatively standard, and we will not re-produce all that they said in this Judgment. However, what was said in the disciplinary policy about investigations included the following (988): “The employee will be informed that an investigation is being undertaken and the reasons for the investigation. This will take place at the earliest practical time following the alleged breach of discipline. At the conclusion of any investigation, the employee will be informed of the outcome … Subject to the nature of the alleged breach of discipline other employees may be asked to take part in investigation interviews as witnesses to events. Any potential witnesses will be asked for their agreement to be interviewed … All witnesses will be asked to sign a copy of their witness statement and it should be made clear that there may be shared with both parties. Once the investigation is complete, on the basis of the facts, the individual conducting the investigation shall decide whether or not to recommend formal disciplinary action. The employee will be informed of this decision at the earliest opportunity.

[21]Under a heading “Formal Action” the disciplinary policy said (989) that, once an investigation had been completed and a conclusion reached that formal action was required, ”the investigation manager will be responsible for completing a disciplinary summary report with accompanying evidence to be presented to an independent hearing manager”. It was Miss D’Souza’s evidence that the respondent did not have a template for the report detailed in the policy. The policy also said: “The employee will be given reasonable notice of the disciplinary meeting to ensure sufficient time to prepare their response and to arrange representation if desired. The disciplinary meeting will be convened at the earliest practical date following conclusion of the investigation”

[22]With regard to the attendance of witnesses at the disciplinary meeting, the policy said (990) that if the individual wished to call relevant witnesses, they should provide reasonable notice and details in advance to the manager leading the disciplinary hearing.

[23]We were also provided with the respondent’s whistleblowing policy (1187). As with the other policies, we will not reproduce all that was said in it. Within the introduction, it said that the whistleblower should make it clear that they are making their disclosure within the terms of the respondent’s whistleblowing policy. It said that all employees are protected from victimisation, harassment or disciplinary action as a result of any disclosure. Five options for raising a concern were explicitly set out in the policy: the line manager; the Designated Officer (Mr Da Silva); the CEO (Mr D’Ammassa); the Whistleblowers’ Champion and Chair of the Audit Committee (Mrs Coll); and the FCA or the PRA. What happened during an investigation and the right of appeal were set out. Within the policy, the roles of the Designated Officer and the Whistleblowers’ Champion were also detailed.

[24]Mr Andy Stafferton was the claimant’s predecessor as Chief Commercial Officer. At the time of the claimant’s recruitment, he was still in post and there was a period prior to the hand-over of responsibilities after the claimant commenced in the role. He remained with the respondent after his change of role and became Group Strategy Director. It was clear that there was some friction between the claimant and Mr Stafferton, and she on occasion felt undermined by Mr Stafferton’s approach. On 5 October 2022 the claimant attended a meeting with a potential new client and Mr Stafferton, at which Mr Stafferton made some statements which the claimant believed were misleading. We would emphasise that we did not hear any evidence from Mr Stafferton and he is no longer employed by the respondent.

[25]On 10 October 2022 the claimant exchanged WhatsApp messages with Ms Michael about Mr Corvin Baks and Mr Stafferton. Mr Baks was one of the claimant’s direct reports. We did not hear evidence from Mr Baks. The claimant told Ms Michael that she would be meeting with Mr Baks on the Wednesday (being 12 October) to “tackle him”.

[26]In her witness statement, the claimant said that she had a call with Ms Michael on 10 October in which she relayed to Ms Michael that four new joiners to the business had described Mr Baks’ behaviour as intimidating, overwhelming, intense, overly demanding, constant, extreme and unrelenting. Ms Michael denied that the claimant had said those words. She agreed that there had been conversations about Mr Baks and the need to address his behaviour (she described an occasion when his intensity had made another employee cry), but she denied that the claimant had said the words alleged on 10 October.

[27]On 11 October, the claimant spoke to Mr Atherton, the Chief Operations Officer, and he informed her about concerns which had been raised with him by members of his team about Mr Baks, and their unwillingness to accept telephone calls or meeting requests from Mr Baks.

[28]On 12 October the claimant met with Mr Baks and provided him with feedback. It was the claimant’s evidence that she later met with Ms Michael and spoke to her about the meeting with Mr Baks. We will address when reaching our conclusions what we found was said in the conversation. The claimant’s evidence about the conversation was set out at paragraphs 44, 45 and 47 of her witness statement. We will not reproduce all that was said. In summary, the claimant informed Ms Michael about her meeting with Mr Baks, and his reaction.

[29]It was the claimant’s evidence that she also met with Mark Stephens, the Chairman of the Board, on 12 October 2022. We did not hear evidence from Mr Stephens. What the claimant said in that meeting was detailed in paragraphs 49- 54 of her witness statement and we will not reproduce those paragraphs in this Judgment. What we found the claimant said is recorded in our conclusions below. In summary, the claimant informed Mr Stephens about both Mr Baks (and her meeting with Mr Baks) and her concerns about Mr Stafferton. The claimant alleged that Mr Stephens responded by saying that Mr Baks and Mr Stafferton needed to be removed by the business. Mr Stephens thanked the claimant for not walking past issues and for taking steps to tackle the poor culture and poor conduct, which was what she had been recruited to do. In cross-examination, the claimant agreed that Mr Stephens was supportive in response to what he was told by the claimant.

[30]It was the claimant’s evidence that, later on 12 October, she also met with Mr D’Ammassa and Ms Michael in-person. She said that she informed Mr D’Ammassa about her meeting with Mr Baks. The claimant also said that she spoke about additional feedback she had received from Mr Atherton about Mr Baks. What she said about that meeting was recorded at paragraphs 56-59 of her witness statement and what we found was said is recorded in more detail in our conclusions below.

[31]The claimant relied upon what she alleged she said to Mr Stephens, Ms Michael and Mr D’Ammassa on 12 October as being the first alleged protected disclosure which she made (albeit from her evidence what was being considered was what was said in three separate meetings/conversations on that date).

[32]In her witness statement, Ms Michael said that it was extremely unlikely that she would have had any conversations with the claimant on 12 October because she was in meetings all day, and she denied that they had discussed Mr Stafferton, Mr Baks, or anyone else. When she was being cross-examined, and after she was taken to the WhatsApp message of 10 October, Ms Michael accepted that it was likely that she would have spoken to the claimant about her meeting with Mr Baks on 12 October if they were both in the office that day. Mr D’Ammassa’s evidence was that the claimant had not disclosed things to him on 12 October and he went on to say in his statement that if they had had a discussion on that day it would have been a normal one-to-one meeting and what the claimant raised in those meetings was entirely routine in nature and was focussed on standard business matters. He said that there was nothing said by the claimant which related to concerns around the conduct, ethics or behaviours of any individual.

[33]On 18 October the claimant exchanged emails with Ms Michael about Mr Baks and what had been said to him (Mr D’Ammassa was also a party to the emails) (557). Ms Michael said she had spoken to Mr Baks. She went on to say “He accepts he needs to work on his style and has done some soul searching on that. So, I think we need to reset, accept he’s taken on the feedback and move forward in a supportive way”. The claimant responded: “Really appreciate the time you’ve invested here and the ongoing commitment – really supportive. Hopefully once he gets to know me better, the trust will build and he will see how much more we can achieve together. I’ve shared some areas with him where his attention and focus would be invaluable – so we’ve got a good starter plan for now”

[34]In the claimant’s witness statement, there was a detailed account of a oneto-one conversation which she said she had with Mr D’Ammassa on 4 November 2022 and what she said she had disclosed on that date. Mr D’Ammassa denied that a meeting had taken place on that date at all. In his oral evidence, he explained that was because he had moved house on that day and so the meeting and conversation could not have happened. That was not something which the respondent had previously pleaded or which Mr D’Ammassa had even detailed in his written witness statement. We accepted Mr D’Ammassa’s evidence about what happened on that date and why it was that he could not have met with the claimant, as she detailed in her statement (it being such a significant life event and one which we accepted from his evidence meant that he would not have spoken to the claimant as she had said).

[35]We heard evidence about a number of conversations which the claimant had with Ms Michael, Mr D’Ammassa and others. We have not recorded in this Judgment all of those conversations or what was said. There was a dispute of evidence about what was said in many of those conversations. In this Judgment, we have restricted our findings to those conversations which we found to be material to determining the issues which we needed to decide and, in particular, the protected disclosures relied upon as recorded in the list of issues (rather than as referred to in the claimant’s witness statement). In general terms, there was a dispute about how specific and detailed the claimant was in raising matters about others, and whether those matters were routine interpersonal and business-asusual conversations, or whether the claimant reported anything more specific or more serious in nature.

[36]It was the claimant’s evidence that, in a number of her meetings with Mr D’Ammassa, when she raised things with him, he laughed and told her that she was being paranoid. Mr D’Ammassa denied that he ever laughed at things raised by the claimant, and he denied that he called her paranoid. He contended that the claimant called herself paranoid in conversations with him.

[37]The claimant lived some distance from the respondent’s office and she booked a room at the Staycity hotel on a number of occasions for herself. Mr D’Ammassa had previously sent an email to the senior management team of the respondent criticising them for trying to book rooms at late notice and causing additional cost and extra work for the administrator responsible as a result. Prior to and during a period of leave, when the claimant was on holiday in Barbados, there were some issues raised about a booking and it potentially being cancelled, which the claimant said placed her under pressure to confirm bookings at the hotel.

[38]On 27 November 2022, on the day upon which she returned from holiday, the claimant emailed Staycity hotel to book rooms for 7 December for herself, Ms Estelle McConnell (managing director powersports and a new recruit to the respondent at the time), and Mrs Jodie Abbott (previously Waddington, although we will refer to her in this Judgment using her married name except where directly quoting what was said in a document). Mrs Abbott was junior to the claimant. It was Mrs Abbott’s evidence that she knew nothing about the room booking at the time it was made. Mrs Abbott had worked with the claimant in previous employments for a total of approximately three and a half years. We considered the second sentence of the email to be important. The email said (800): “Re the 7th Dec – please could you also book a room for Estelle McConnell and Jodie Warrington. All bills back to DF Capital”

[39]It was the claimant’s explanation that she had put a placeholder in her diary for welcome drinks for Ms McConnell on 7 December, but ultimately nobody was ever invited to, or communicated with about, the drinks, as a result of the claimant’s busyness, and the fact that the Christmas party was imminent in any event. The claimant’s case was that she subsequently identified that Ms McConnell and a former work colleague, Ms Brown, were all working close to Manchester on 7 December and she decided it would be nice for the three of them to have dinner together and therefore she did not change the room bookings because she wanted Ms Brown to use one of the rooms (and to pay for it). In the transcript of the disciplinary hearing, the claimant was recorded as having referred to the three of them as “The Dream Team” (681) with reference to having worked together in previous employment (albeit she could not recall having used that title when asked about it in the Tribunal hearing). Ms Brown was not an employee of the respondent.

[40]On 30 November Mrs Abbott was contacted by Staycity hotel to confirm her room booking. Mrs Abbott queried the email with a colleague and informed the hotel she had not made a booking. Mrs Abbott was informed by the hotel that the booking had been made by the claimant, and so Mrs Abbott emailed the claimant about it.

[41]The claimant sent Mrs Abbott an email which said: “Ill fill you in – please go back and confirm to keep the room!”

[42]The claimant sent Mrs Abbott one or two Teams messages (759) which said: “Room is for Tamara!!!” and “Wee sneaky dinner with her and estelle when Estella starts next week!”.

[43]As the claimant had told Mrs Abbott to confirm the booking, Mrs Abbott did so. It was Mrs Abbott’s evidence to us that she felt uncomfortable about this, but as the claimant was the senior executive manager responsible for her business function, she felt she had no choice but to do what had been asked. She also told us that she could not stop thinking about the situation and had felt uneasy about it. She spoke to Mr Walker, Head of Field Sales, about this.

[44]It was the claimant’s account that she had not changed the name on the room booking from Mrs Abbott to Ms Brown (a non-employee for whom the booking was intended), as there had been enough confusion to this point and the administration for hotels was not the claimant’s top priority (734). In evidence and in documents, the claimant described that she had decided to re-purpose the room. The claimant did not change the name in which the room was booked, so it remained booked in Mrs Abbott’s name (despite there being no intention for her to use the room), with the last detail which had been provided about payment being what the claimant had said in her email of 27 November (800).

[45]The respondent had a Christmas party. The claimant described it as the best Christmas party she had ever been to. On the day after the party, 2 December, the claimant sent messages to Mr D’Ammassa. The parties disagreed whether the messages reflected the claimant’s view of Mr D’Ammassa at the time or whether they were simply positive messages sent after a good party. What the claimant said was 1199(a): “Best Christmas Party Ever!!! - Dancing before dinner - Dancing during dinner - The Conga - Dancing after dinner Wow … loved it! Thanks so much for being such a great boss and leader for us all! [celebrating hands emoji] [Attached was a picture which showed the following] Leader Someone who shares their knowledge and experience to help others to dream more, learn more and do more. A person who knows the way, goes the way, and shares the way. Someone who rises by lifting others”

[46]On 7 December the claimant was ill and unable to work. She cancelled her own meetings and did not stay at the hotel. Her proposed dinner with Ms McConnell and Ms Brown did not take place. The claimant did not cancel the rooms booked for Ms McConnell or Mrs Abbott (albeit in fact intended for Ms Brown) and therefore a charge was incurred for the respondent.

[47]There was a dispute between the parties about what occurred in a meeting on 16 December 2022. The claimant’s evidence was that she attended a talent and succession meeting which calibrated the ratings given to employees for year end. The respondent denied that was what occurred at that meeting. It was Mr D’Ammassa’s evidence that the calibration meeting took place in January 2023 and the 16 December meeting was something entirely different from the meeting the claimant described.

[48]There was also a dispute about who provided what grading for Mr Baks for the purposes of calibration. There was no dispute that he was recorded as outstanding in some documentation prior to the meeting. After the meeting he was graded strong. It was Ms Michael’s evidence that she proposed the downgrading as a result of the interpersonal issues which had been identified. The claimant’s evidence was that Mr Baks’ graded himself as outstanding, and she did not provide a grade herself even though he was a direct report, and the grade provided reflected the feedback of other attendees which did not reflect her own view (she said she provided no grade because she understood that her perception differed from others). The respondent’s case was that the claimant graded Mr Baks as outstanding before he was downgraded. We were shown an email from the claimant of 13 January 2023 (947) in which the claimant listed each of the members of her team with the proposed ratings for them for 2022. For Mr Baks, the claimant’s proposed rating was outstanding, followed in brackets by “(on performance)”.

[49]In the documents provided, was a performance review for Mr Baks for 2022 completed by the claimant. It was not entirely clear on what date it was completed (951). That document recorded his overall performance rating as being strong. Within it, amongst other things, the claimant recorded the following: “Corvin has also been instrumental in the onboarding and upskilling of the significant number of new joiners to the commercial team, developing training plans, induction programmes, 121 coaching and training as well as field based support and development. Corvin and I have discussed how his style of support may appear overwhelming or too intense at the early stages of individuals joining our business given their complete lack of knowledge or competence in our business in the early weeks and a gentler approach may be more beneficial. Corvin has embraced this feedback and recognised the benefits of changing his style where required … Corvin recognises that he doesn’t not want people to feel dominated by him as a person … Overall in 2022, whilst Corvin has accepted some difficult feedback on his style and intensity of approach to progress and get things done, I recognise that his value, expertise and commitment to DF Capital is outstanding and we would not have experienced the growth in 2022 without his support”

[50]The claimant investigated expense claims made by Mr Savage, one of her reports. Those included expenses which he had raised previously and which had been signed off by his then manager, Mr Stafferton. The parties did not agree how the issue had first been identified. The respondent contended that it had been identified by others; the claimant appeared to believe that she had identified the issue herself. On 3 January 2023 the claimant met with Ms Michael and Mr D’Ammassa to discuss the expense claims. The claimant met with Mr Savage and Mr Stafferton on 5 January. Ms Micheal commenced an investigation into Mr Savage on 6 January 2023. It was the respondent’s evidence that he was subsequently suspended and ultimately dismissed. The claimant did not know about the suspension or dismissal at the time, as they occurred after 20 January 2023. It was the respondent’s case that the complexity of the matters being investigated, and the number of invoices/claims involved, meant that the investigation took longer than it did for the investigation involving the claimant’s single expense claim. The evidence was somewhat unclear about the position of Mr Savage during January 2023, but he was the key client contact for the key client with whom a meeting was arranged for 23 January, and it was clear in advance that he was not going to attend that meeting.

[51]On 10 January 2023 the claimant met with Mr Dave Burton. They discussed the bonuses to be paid to the claimant’s team members for 2022. Mr Burton sent a Teams message telling the claimant that Mr Baks was being removed from her bonus spreadsheet and being added to the bonus spreadsheet of Mr D’Ammassa.

[52]On 10 January 2023 the claimant sent a WhatsApp message to Ms Michael (1235) as a result of what she had been told by Mr Burton. The message was brief and asked a question. The claimant relied upon what she said in the WhatsApp message to Ms Michael as being her second alleged protected disclosure. The claimant did not evidence any other conversation or meeting with Ms Michael that day. The complete message sent was as follows: “Is it odd that Carl dealing with Corvins bonus separately? Has he said why?”

[53]Ms Micheal replied in two messages: “He’s going to talk to you about his broader remuneration and how we shape his role for 2023. I think you can put a placeholder in there to align with all others so he has a ball park figure. In fact that’ll be helpful for him I’m sure Although I might be wrong and he’s not telling me something and wants to discuss details with you first”

[54]A senior leadership team meeting took place on 16 January 2023. The claimant was unhappy with what Mr D’Ammassa said in the meeting in front of others about revenue numbers and the projected year end forecast. The claimant said she found what Mr D’Ammassa said to be humiliating, intimidating and belittling. Mr Da Silva and the claimant spoke after the call. The claimant’s evidence was that Mr Da Silva informed her that he had found the interaction in the meeting to be awkward, and he believed that Mr D’Ammassa should have spoken to the claimant privately. Mr Da Silva’s evidence was that he did not say what the claimant alleged. We accepted Mr Da Silva’s evidence as we found him to be a genuine witness and saw no reason why he should have given incorrect evidence on that issue.

[55]On 17 January 2023, the claimant attended a transactional credit committee meeting. Mr D’Ammassa raised why Mr Savage was not present as he should have been a presenter at the meeting. Given the confidentiality of the investigation into Mr Savage’s expense claims, the claimant felt unable to provide an explanation with others present. Mr D’Ammassa said that it was unacceptable and a waste of the committee’s time. The claimant said she felt humiliated and belittled in front of others and described herself as shocked by Mr D’Ammassa’s behaviour.

[56]The claimant exchanged messages with Ms Michael in the evening on 17 January (1054). One of the claimant’s messages referred to what she had been told by her partner and said: “Really appreciate the chat … much better coaching than Tony’s solution of “I’m not having you in tears – just resign, b***ocks to them!”

[57]On 19 January the claimant and Mr Stafferton discussed the business plan for the year. Mr Stafferton informed the claimant that the plan was entirely flawed. It was the claimant’s position that the plan had been discussed and agreed the previous year with Mr Stafferton’s involvement. She was unhappy with the criticism of the plan. In a larger meeting that evening, the claimant shared Mr Stafferton’s view of the plan.

[58]A meeting with the respondent’s major client was due to take place on Monday 23 January. Mr Savage was the key client contact, and he was at that stage absent from work or not available for that meeting. The claimant was to lead on the meeting. It was her evidence that she was prepared for the meeting, and she said it was only a quarterly review with the client. Mr D’Ammassa thought the claimant was insufficiently prepared. He believed it was an important meeting and an annual review. Mr D’Ammassa sent an email on 19 January re-arranging things for 20 January and saying that was to provide the claimant and Mr Stafferton time to prepare. The claimant was unhappy with that email as she did not believe she needed more time, it was not Mr Stafferton’s responsibility, and she felt that it undermined her in front of others.

[59]On 20 January 2023 a senior leadership team meeting took place. Most of the attendees were in person, including the claimant, Mr D’Ammassa, and Ms Michael. The main point of discussion was three people being appointed to the senior leadership team including Mr Baks. Mr D’Ammassa had spoken to each of the attendees in advance of the meeting about that. A discussion arose about Mr Baks’ appointment. The claimant expressed concerns about the message it would send out to others for him to be appointed. In her evidence at the Tribunal hearing, the claimant was keen to emphasise that she made positive comments as well as raising her concerns. Others also did so. Mr D’Ammassa became unhappy about how the meeting was progressing regarding Mr Baks and said so. He said that there had been no positive contributions made about Mr Baks, save for one person who had.

[60]What exactly the claimant said in the meeting was not recorded in any document. The claimant relied upon what she said as being her third alleged protected disclosure. There appeared to be no dispute that the claimant said that the respondent needed to be mindful of the message which the appointment would send to others. In her evidence, the claimant said that she said “Specifically, that multiple women and junior members of the team had raised serious concerns about the detrimental harm being caused by Mr Baks’; concerns which had never been formally investigated”. Mr Da Silva said that the claimant was particularly vocal about her concerns with respect to Mr Baks. Mr Banks’ statement said that the claimant raised a point that there had been instances when Mr Bak’s actions had upset people on a number of occasions and made them cry. Mr D’Ammassa said that the claimant expressed reservations and the strength of the objections took him by surprise. Ms Michael said that the claimant referenced three sets of feedback she said she had received around Mr Baks in the week before the meeting, that suggested his behaviours had slipped.

[61]The claimant became upset in the meeting and explained to the attendees that she was not sure why. In her evidence to us, she emphasised that she believed Mr D’Ammassa had been wrong to say that there had been no positive contributions made about Mr Baks, and that when he made his comment of general application, she had believed that he had been looking straight at her.

[62]It was not in dispute that Mr D’Ammassa made a comment about crying in the meeting. His evidence was that he acknowledged that Mr Corvin had been accused of making people cry and he stated that, given the claimant had become visibly upset in response to comments Mr D’Ammassa had made in the meeting, he asked whether that would lead to a similar characterisation of him. Ms Michael’s evidence was that Mr D’Ammassa said something similar to “Ciara, I have made you cry right now, that doesn’t necessarily mean we should not be around this table or make us bad people” (which was an account she recorded in an email within weeks of the meeting). It was the claimant’s evidence that she reminded the attendees that Mr Baks had caused harm to multiple women following his interactions with them and this was recent feedback on his behaviours. It was the claimant’s evidence that Mr D’Ammassa then said “We’ll just get rid of Corvin (Mr Baks) just because he made someone cry! Well clearly, I’ve made you cry, so shall we just get rid of me too?”.

[63]The claimant left the meeting. The other attendees initially expected her to return. She did not. Ms Michael left the meeting to find the claimant. She spoke to her. The claimant said that she could not work with Mr D’Ammassa and spoke about resignation. It was Ms Michael’s evidence that the claimant said that she was resigning and tried to return her laptop and other equipment to Ms Michael, but Ms Michael told her to think about it and did not accept her resignation. Ms Michael helped the claimant collect her belongings, before the claimant left the building. Ms Michael and the claimant exchanged messages during the claimant’s travel home from the meeting.

[64]Ms Michael informed Mr D’Ammassa about what the claimant had said. Mr D’Ammassa was due to be on holiday for the next two weeks. He made arrangements to cover the claimant’s work, on the assumption that she would be absent. There was a dispute about the extent to which what Mr D’Ammassa said and did was short-term and temporary, or more permanent in nature.

[65]The claimant sent an email to Mr D’Ammassa on 20 January 2023 at 17.36 (477). She relied upon what she said in that email as being her fourth alleged protected disclosure. Within that email the claimant said the following: “In seeking to do the right thing for both the people and the business, I have called out multiple issues and highlighted areas requiring intervention and resolution. I have taken responsibility and accountability for addressing these issues, keeping all SLT members briefed, where required, on progress. I feel that my doing the right thing and highlighting these issues in the business, have not been welcomed. Indeed, I have been made to feel that what I am raising is inconvenient. I also have concerns about regulatory responsibilities in my role, given how issues I have raised to date have been addressed. There have been a number of occasions when I have been made to feel belittled, humiliated and indeed victimised, in front of others by you. Today’s SLT meeting was a final straw moment for me when a discussion between you and SLT members, regarding changes you are making to the group membership, resulted in you challenging the entire team (except Andy), with false accusations and refusing to receive or accept any feedback, opinions, or counsel from your senior team. You have shared with me both during the recruitment process and thereafter, the toxic environment in the Commercial team. You have shared the details and names of the individuals who created this environment, which caused most of the division to resign from the business. I have also witnessed and received multiple escalations regarding the same unacceptable behaviours, which I immediately highlighted to you and sought to address with Corvin Baks, Andy Stafferton and Dan Savage. These individuals all remain with our business and both Corvin and Dan value the direct 121 support they receive from you. This directly undermines my role, responsibilities, and my management of these individuals. And collective feedback from all your SLT members is that Andy’s ongoing ‘throwing of grenades’ is both detrimental and damaging to progress. As you yourself noted, I had tears forming when giving you my opinion in today’s meeting, and for you to liken that to the impact Corvin Baks has had on multiple individuals, both former and current in our business, was both humiliating and cruel in front of my peers. I’ve had a whats’app message from Charlie asking whether I intend to resign or whether I will be attending the [client] meeting on Monday. Given the impact of these events, which I have found very damaging on my mental health, I will be seeking some further advice and do not feel comfortable to work in this environment on Monday”

[66]Mr D’Ammassa responded at 17.49 the same afternoon (476) saying he was sorry to read the email and was shocked as the issues had never been raised directly with him. He concluded his email by saying: “I know it’s not ideal that I am away, but I am more than happy to make a convenient time whilst away as this clearly needs addressing. Let me know what works. I suggest in the meantime you don’t continue to engage in any company business until we work a way forward and understand your intentions”

[67]The claimant responded to the Mr D’Ammassa at 18.11: “So I am clear, are you instructing me not to have any interaction with anybody in the business?”

[68]Mr D’Ammassa replied: “Yes for now please until we get to speak – I think you need a few days break and as you know from our chat yesterday I was worried about you. When do you want speak?”

[69]Mr D’Ammassa sent an email to the members of the senior leadership team, including the claimant, with his instructions about covering matters. He included the claimant in that email. It was Mr D’Ammassa’s evidence that, after sending the email, he had second thoughts and was concerned that it was insensitive to the claimant for her to receive the email. He endeavoured to recover the email. He also asked the IT department to remove the email from the claimant’s in-box. The claimant saw the heading of the email appear. She did not read it.

[70]It was the respondent’s evidence that, as a result of removing the email from the claimant’s in-box, the claimant’s password was automatically reset. When the claimant endeavoured to access certain of the respondent’s systems, she was unable to do so.

[71]On 22 January the claimant contacted Mr Da Silva via Linked In. The claimant and Mr Da Silva spoke twice on 23 January. Ms Michael also texted and emailed the claimant. On 25 January the claimant responded to Ms Michael.

[72]Mrs Coll, a non-executive director, sent an email and text message to the claimant, and the claimant spoke to Mrs Coll on Teams on 30 January 2023. The claimant relied upon what she said to Mrs Coll on 30 January as being the fifth alleged protected disclosure which she made. The claimant’s evidence about what she said in the call was relatively brief. She said that she shared with Mrs Coll the serious concerns, the harmful experience, the detrimental treatment and the lack of resultant action taken by Mr D’Ammassa during her time with the respondent. Her witness statement included no statement of the specific words she used or things which she had said. It was Mrs Coll’s evidence that the call primarily centred on the claimant’s perceived relationship issues with Mr Savage and Mr Baks, and her interactions with Mr D’Ammassa and Mr Stafferton. Mrs Coll described what she heard as interpersonal issues. It was Mrs Coll’s evidence that the claimant said she did not believe that returning was an option and she did not want to continue working with Mr D’Ammassa. It was Mrs Coll’s evidence that, at no point did the claimant lead Mrs Coll to believe that she was making a whistleblowing complaint.

[73]On 31 January 2023 Ms Michael, Mrs Coll and the claimant spoke.

[74]On 31 January, Ms Laura Harper-Bond, a People Services Manager, received an email from Staycity Manchester with no show fees for the hotel booking from 7 December including for Mrs Abbott. The no show fee for the room booked in Mrs Abbott’s name was for £92.

[75]On 1 February Mrs Abbott and Ms Harper-Bond discussed the no-show fee. Mrs Abbott sent Ms Harper-Bond the emails and Teams chats which she had, relevant to the booking.

[76]On 2 February Mrs Abbott spoke to Mr Walker, and he sent Ms Michael a summary of his account of the hotel booking and what Mrs Abbott had told him.

[77]On 2 February the claimant spoke to Mrs Coll and Ms Michael. The call included Mrs Coll speaking about the issues raised by the claimant. Ms Michael then spoke to the claimant about the hotel booking. It was the respondent’s case that Ms Michael undertook an initial investigation of the issue, before passing the matter to Miss D’Souza.

[78]On 2 February Miss D’Souza became involved in the disciplinary process. When that was clarified with her, she confirmed that she had been asked to conduct the disciplinary hearing by Ms Michael. Miss D’Souza is a solicitor with experience both in-house and in private practice, but she acknowledged that she had no experience specifically in employment law and so she sought support and guidance from others (and from resource materials) to inform the approach she undertook in the disciplinary matter (being the first hearing she had conducted which involved potential gross misconduct).

[79]On 3 February the claimant was invited to a disciplinary hearing with Miss D’Souza, to be held on 7 February (640). Miss D’Souza had recently joined the respondent and had not been involved in any of the earlier issues or conversations. She was appointed to be both investigating manager and the manager who would hear the disciplinary, something which we were informed was a standard practice at the respondent and was explained (at least in part) by the seniority of the claimant and the lack of people able to hold those roles. The invitation said the following were the allegations: “Breach of the DF Capital Expenses Policy Breach of the Code of Conduct & Ethics”

[80]The letter went on to say: “As discussed, the purpose of the disciplinary meeting is to investigate the circumstances surrounding you booking a hotel room in Jodie Waddington’s name at Staycity apartments on Wednesday 7th December 2022 which was payable (and paid for) by DF Capital. By the above it is alleged you have: - Breached the DF Capital Expenses Policy; - Breached the DF Capital Code of Ethics policy; and - Acted, or potentially acted, in an unprofessional and discreditable conduct”

[81]The letter went on the explain that the allegations could be found to be gross misconduct, with summary termination a possible outcome. The date and time of the disciplinary meeting was provided, and it was said Miss D’Souza would conduct the meeting. It said Ms Michael would take the notes (albeit that did not occur as the note taker was subsequently changed). The evidence enclosed was listed. It was said that the respondent did not intend to call any witnesses to attend, but if there were any witnesses which the claimant considered it appropriate to attend or request to attend, she should confirm their name and identity to Miss D’Souza so that she could ensure that person was available to be in attendance. In two paragraphs in the letter which were less standard, the following was said (the second paragraph was in bold in the letter, but is shown in standard words here): “If you do not attend this disciplinary hearing without an acceptable explanation as to the reasons for your absence, the meeting will go ahead in your absence and a decision will be based on the information available to DF Capital … Before COB Friday 03 February 2023, we request that you write down the full account of events that led you to book a hotel room in Jodie Warrington’s name at Staycity apartments on Wednesday 7th December 2022”

[82]The claimant and Miss D’Souza exchanged emails about the hearing. In summary the claimant was critical of the process and the notice given for the hearing. On 6 February Miss D’Souza said (741): “I appreciate in many cases an investigative meeting with you and, potentially, interviews with other witnesses would be appropriate. Having seen the documentary evidence, I concluded that to deal with this matter, nothing else is needed so far as the process is concerned. This situation is very simple. If during the disciplinary meeting, you raise matters that require further investigation then the process will, of course, pause so those investigations can take place”

[83]In a subsequent email of 6 February (740), Miss D’Souza said that “given how straightforward this matter is” she could see no reason to postpone the meeting proposed for the following morning. At 2.51 pm (738), after receipt of further emails from the claimant, Miss D’Souza rearranged the meeting to 9.30 am on 10 February. The email confirming the rearrangement was clear and said that a Teams invite would be circulated.

[84]On 5 February the claimant emailed Staycity and proposed that she paid for the cancelled rooms (647) and provided an explanation. She followed up her proposal on 7 February.

[85]In advance of the disciplinary hearing, Miss D’Souza made contact with and spoke to Mrs Abbott, Mr Walker and Ms McConnell. The conversations were not noted, and no statements were obtained or provided. In cross-examination, Miss D’Souza described the conversations as being her introducing herself and speaking in case further information was required. She clearly formed a view about Mrs Abbott, because she decided she did not wish to involve her further in the process and in her statement for the Tribunal she described that Mrs Abbott was on leave at the time of the call due to stress and anxiety, and had been clearly distressed and appeared anxious (as well as sharing that the incident had left her feeling extremely uncomfortable and in a difficult position). In emails with the claimant in advance of the disciplinary hearing, Miss D’Souza informed the claimant that she had spoken to Mrs Abbott and Mr Walker, but not that she had spoken to Ms McConnell (it was Miss D’Souza’s evidence that she did not believe she had done so when the email was sent).

[86]It was Miss D’Souza’s evidence that she did not speak to Mr D’Ammassa in the course of her investigation. She referred to being unable to do so because he was away on holiday. Mr D’Ammassa did email Miss D’Souza with an account of a conversation which he said he had had with the claimant. It was his evidence that he did so after speaking to Ms Michael, when he had mentioned that the claimant had discussed plans to go out for dinner with Ms McConnell and Ms Brown at the end of one of their one-to-one meetings. The email of 1 February (883) said: “As we had interviewed [Ms Brown] for the Powersports job, and she was known to us, I felt there was no issue in her joining the group drinks/dinner and confirmed my support rather than splitting out what could be a glass or two of wine and a main course”

[87]The claimant’s evidence was that the account which Mr D’Ammassa gave in the email was not correct. In an email, the claimant asked that Mr D’Ammassa attend the disciplinary hearing. Miss D’Souza did not arrange for him to do so and did not arrange for a statement to be taken from him.

[88]On 9 February the claimant sent a lengthy letter to Mrs Coll and Miss D’Souza (963). That letter was the sixth alleged protected disclosure upon which the claimant relied. The letter itself ran to fifteen pages, and we will not reproduce all that was said in this Judgment. It said that it was following up on the meeting of 30 January where it was said the claimant had disclosed information under whistleblowing. It referred to the Public Interest Disclosure Act 1998, and it said the purpose of the letter was to summarise the disclosures made on 30 January, alongside the detrimental treatment which the claimant said she had suffered as a result. She referred to alleged disclosures regarding Mr Savage, Mr Baks, Mr Stafferton, monitoring of a particular client, and a high-risk monitoring meeting. She then went on to address what had occurred in the senior leadership team meeting on 20 January and in the emails exchanged after that meeting, as well as her being unable to access Teams and Outlook on 21 January and the messages and conversation with Mr Da Silva and Ms Michael in January, before addressing a number of other complaints. The email ended with what was said to be a summary of detrimental treatment following the claimant’s protected disclosures.

[89]Early in the morning of 10 February, Mr D’Ammassa sent an email to Mr Stephens which was included in the bundle (1246). In it, he addressed the process which had unfolded over the last three weeks, and he said he was critical of the way it had been handled. He was critical of what had occurred and criticised Mr Da Silva (albeit in his evidence at the Tribunal hearing, Mr D’Ammassa said that he had been wrong to do so). In a separate paragraph, he equated Ms Michael’s position with his own and said that she was frustrated by the strategy being deployed and that she had shared her views with Mr D’Ammassa following what was described as the previous day’s further move by the claimant. He concluded the email by saying he needed to put himself and his family top of the priority list.

[90]The disciplinary hearing took place on 10 February. It was conducted by Miss D’Souza. Ms Harper-Bond attended to take notes. We were provided with the notes (709). We were provided with a transcript of the meeting (671). It took place by Microsoft Teams and the notes recorded that it lasted from 9.30 until 11.31.

[91]The claimant provided a very detailed account of what she said was the position with the hotel booking in Mrs Abbott’s name and why it had occurred. It is clear from the transcript that the claimant was given a full opportunity to say everything that she wished to and to provide her account; notably the claimant did the vast majority of the speaking in the meeting. Miss D’Souza was recorded as asking questions of the claimant, but there was nothing in the transcript which appeared to show her doing so inappropriately or in any aggressive or confrontational way (albeit as the claimant highlighted in her answers to crossexamination, a transcript does not record the manner or tone of voice in which the things recorded were said). Amongst many other things, the claimant said that in hindsight and now that the company had been charged, she should have prioritised the rename of the hotel room, but she said at the time she did not see any risk (and she explained why she believed there had been confusion around some other bookings and the names on the bookings which dissuaded her from changing the name on this occasion) (690). She explained the use of the phrase wee sneaky dinner, with reference to her own dialect (being Northern Irish) and she said they were words she used and were not being about it being secret (695). The claimant asked if she had been treated differently as a woman or as a whistleblower (703)? At the end of the meeting, the claimant said that she would provide emails and documents to Miss D’Souza and Miss D’Souza said that once she had the information from the claimant, she would review it in the context of the documents which she had (707).

[92]The notes of the meeting were considerably more concise than the transcript and clearly did not record all that was said. There was one particular issue in dispute about the notes. At the very end of the notes (716) it was recorded that: “KDS and CR discuss the provision of notes and KDS confirms that she will be speak to LHB on timings. CR states that she wants to have the opportunity to review and change them”

[93]The transcript recorded that Miss D’Souza said that the notes would be available and the claimant said (708): “so my normal experience of you know, the notes we’re not expecting that, that Laura has manged to catch verbatim everything that everyone’s been said. It would be a, you know, as best as we can and accurate reflection of the conversation and the main points that we’ve made. But I’m sure Laura would be OK if she shares this with me. If there’s anything I feel is materially not what has been said or incorrect not, I absolutely agree whatever has been said has been said, but if there’s anything that I believe has been captured incorrectly, that will have the opportunity to come back and make that point”

[94]In an email of 15 February (720), the claimant said that the notes were not accurate, not comprehensive and failed to document the key points discussed. She said there were obvious mistakes, omissions and inaccuracies. Of the particular entry recorded above, the claimant said: “This is an entirely untrue statement and could be potentially misleading upon review by any external 3rd party. I am shocked that you have approved the minutes being captured in this way, noting the potential additional detrimental harm this could cause me”

[95]When what was recorded in the notes was put to Miss D’Souza in crossexamination, she highlighted that she had not written the notes.

[96]Later, at 3pm on 10 February, there was a meeting of the Nomination Committee. Mr Stephens chaired the meeting. Present as part of the committee were Mrs Coll and two independent non-executive Board members. Also in attendance were Mr D’Ammassa, Ms Michael and Miss D’Souza (who took the notes). It was Mr D’Ammassa’s evidence that he was not a member of the committee and he attended on this occasion at the request of the Chair and he did not take a speaking-part in the meeting. It was Miss D’Souza’s evidence that she was not a part of the committee. The meeting lasted for an hour and ten minutes. It was a meeting which was undertaken as a hybrid with both in-person attendees and remote attendees.

[97]Notes of the meeting were provided (717). They recorded that the purpose of the meeting was to discuss the disciplinary matter involving the claimant. Miss D’Souza provided a summary of the hearing which had taken place with the claimant earlier in the day and confirmed “her initial thoughts following the meeting”. The first such thought was that “It was a clear manipulation of the policy – effectively booking a room in someone’s name who had no idea on purpose or need for the room and who had never consented to the booking”. After setting out some other points made by Miss D’Souza, the note then went on to record the following: “The Committee had a general discussion regarding the above. The Committee discussed that it was keen to ensure that any response was appropriate and proportionate given her seniority in the business and her position both of responsibility and trust. The Committee discussed that in her position as CCO it was fundamental that she operated completely above reproach, it was a position which was vulnerable to third party influences. The Committee discussed that the business had high standards on any financial/expense matters and it was important these were upheld consistently. The Committee discussed the use of a junior employee and the failure by CR to admit an error. After due and careful consideration, the Committee agreed that the actions by CR revealed a lack of judgment on her part which in her position as a senior leader with SMF responsibilities eroded the trust which the directors and Committee had in her going forward.”

[98]It was Mr D’Ammassa’s evidence that the agreement was reached in an amicable way, but there was no vote taken. Miss D’Souza emphasised that executive matters did not fall within the remit of the committee, and she denied that what was taken was a decision or was a decision in the disciplinary matter. She said that it would have been the committee hugely over-reaching its own terms of reference, to be involved in executive decision-making.

[99]On 15 February, the claimant sent forty-five attachments/documents to Miss D’Souza (722). We were provided with those documents. Many of them were proposed to show the claimant’s appropriate conduct with other expenses including providing three photographs of the outside of a hotel, one photograph of the sheets used, and one photograph of the pass, for a hotel in which she had stayed out of area because it was cheaper. One of the documents detailed the claimant’s position or arguments. She concluded one document (763) by saying “I noted that an employee who could clearly evidence a focus on compliance with policy and a proactive approach to cost reduction in business is extremely unlikely to be the same employee who would attempt to defraud the company of £82 in a hotel booking”. The claimant contended that Miss D’Souza did not consider the documents provided. It was Miss D’Souza’s evidence that she did.

[100]The outcome of the disciplinary process was provided in a lengthy letter of 17 February from Miss D’Souza (821). We will not endeavour to re-produce all that was said in that letter, which focussed upon thirteen numbered reasons why Miss D’Souza said she had reached her decision. The decision was to uphold the allegations against the claimant. It was found that the claimant had committed gross misconduct. The sanction was dismissal with immediate effect. Miss D’Souza did say that she had taken into account the evidence that had been provided regarding previous good conduct (during the short time the claimant had been employed), but that was not found to mitigate the claimant sufficiently or excuse the misconduct. The claimant’s employment terminated on 17 February. In her conclusion Miss D’Souza said the following: “In coming to this conclusion of gross misconduct, I have determined that:(1) The room was booked by you for a personal friend of yours for nonbusiness purposes. The room was paid for by DF Capital.

(2) You were aware that a junior colleague questioned the room booking, but subsequently confirmed the room based on comments you made to her. You failed to address this or rectify the issue despite having sufficient time and opportunity to do so. I have noted that the above matter is a single incident of relatively low value during a busy work period, and no other allegations of submitting false expense claims or other financial irregularity have been made against you at DF Capital. Notwithstanding this, your actions are incredibly serious and in your role as a senior leader in a position of trust in the business it is imperative that you are held to the highest possible standards and that these are applied on a consistent basis”

[101]In her evidence to the Tribunal, Miss D'Souza explained that she considered it to be a simple decision which she had to make with only one question to answer: did the claimant book a hotel room for personal use, payable by the business? She highlighted the thirteen points which explained how she got to her decision, explaining that what was said about Mrs Abbott was not the crux of the issue. It was clear from her evidence, that Miss D’Souza concluded that she did not believe that the claimant had ever booked the room with the intention of Mrs Abbott staying in it. It was the conclusion which Miss D’Souza reached that the booking had been made for use by the non-employee from the time when the booking was first made. Miss D’Souza said that she found that the claimant’s explanation lacked credibility.

[102]It was Miss D’Souza’s evidence that she had not been present at the meeting on 20 January 2023. It was also her evidence that she had not been privy to the conversations in which the claimant asserted that she had made protected disclosures. She had been made aware of the claimant’s email to Mr D’Ammassa sent on 20 January because it was copied to her by Mr Da Silva on 25 January. She was not aware of what the claimant had discussed with Mrs Coll on 30 January. She was sent the claimant’s email of 9 February. It was Miss D’Souza’s evidence that she read it but decided that its content was not material to the disciplinary issues she was determining. She had not been employed by the respondent in October 2022 when the first alleged protected disclosures had been made.

[103]The claimant appealed in a (wrongly dated) letter to Ms Michael on 22 February (828). The reasons for her appeal were set out in that document. The disciplinary appeal meeting was conducted by Mr Morris and took place on 2 March. An independent note taker from Reality HR Limited attended to take the notes of the meeting. The notes were included in the bundle (862).

[104]A further meeting between the claimant and Mrs Coll took place on 3 March. An HR Advisor from an external company (Reality HR) attended to take notes. The notes of the meeting made by the HR Advisor were amended by Mrs Coll before being provided to the claimant. We were provided with both the notes as prepared by the HR Advisor (401) and the notes as amended by Mrs Coll (showing the amendments she made) (396). A particular element of what was recorded was considered by the claimant to be contentious. In her evidence, the claimant said that Mrs Coll had said in the meeting that she had decided to pause the investigation she was undertaking, due to the fact that she was aware that the claimant had been invited to a disciplinary interview. It was the claimant’s evidence that when that was said, she asked for it to be repeated and noted. Mrs Coll denied that she had said that and highlighted that she did not pause the investigation when the disciplinary issues were raised. The notes (both before and after Mrs Coll’s amendments) (400/405) said: “NC explained that this process was paused as further information from CR had been submitted 9th February which required investigation”

[105]It was the claimant’s allegation that Mrs Coll amended the notes (because she had made a protected disclosure). Mrs Coll denied that she had amended the notes at all for that point (and said that her amendments were for typos and erroneous dates). It was Mrs Coll’s evidence that the minutes were the record made by Ms MacDonald (the external HR advisor) and were an accurate reflection of the meeting.

[106]We were also provided with the claimant’s own record of the meeting notes incorporating her own amendments and comments (1010). Those were substantially shown in yellow (albeit not all the things she added were in yellow). The claimant’s amendments were substantial. It was the claimant’s own evidence that she provided Mrs Coll with her copy of the minutes on 15 March 2023 and, whilst we were not provided with the email attaching her minutes, Mrs Coll accepted that the claimant had done what she said. For the entry in the minutes disputed and quoted above, the claimant had added that “NC did not say this”. In her own comments she included the following long section: “CR asked NC about what progress NC had made into investigation her concerns in the past 5 weeks regardless of whether NC understood them to be whistleblowing or a grievance or a list of concerns. NC stated that she had paused the investigation whilst the separate investigation into CR was playing out. CR asked NC to repeat what she had just said and again NC repeated that she had decided to stop the investigation into the concerns raised by CR as NC was aware that a separate investigation into the conduct of CR was happening at the same time. CR stated this information was very concerning and asked NC why she believed that she should stop the investigation. NC was unable to answer”

[107]It was the claimant’s evidence that Mrs Coll’s conduct in the meeting was aggressive and accusatory. Mrs Coll denied that it was. In her witness statement, the claimant explained this evidence by highlighting that Mrs Coll had asked her in the meeting why she had contacted Mr Da Silva to raise her concerns. The line from the notes which particularly appeared to be relied upon for the claimant’s allegation/evidence was as follows (the entry was unamended in any of the notes) (1012): “NC then went on to ask why NC had reached out to CR and why CR hadn’t reached out to NC. NC also challenged CR that she had not been clear at the outset that she was raising concerns under whistleblowing”

[108]On 8 March Miss D’Souza emailed Mr Morris, Mr Atherton, Mr Baxter and Mr Da Silva, asking that they provide their notes or recollections of the meeting which took place on 20 January to Ms Michael. They did so and we were provided with their notes. The request was made at the request of Mrs Coll.

[109]Mr Morris sent the claimant the notes of the appeal meeting on 10 March (1138). On 15 March the claimant responded with her comments. In the email sent, the claimant said “You will recall that I requested a copy of the report provided to the FCA regarding my conduct. Please can you provide this or confirm if I should request this under a full subject data access request at this stage”. Mr Morris responded on 17 March (1137). Amongst other things, he said “In respect of your query regarding our communications with the FCA. We have kept the regulator updated on our process. At the end of the appeal process we will provide a report as required to the regulator and we will provide you a copy at this point as required”.

[110]In the course of her investigations, Mrs Coll spoke to a number of people on a number of occasions. As a result, some documents were produced which purported to show what was said by an individual. The notes, for some of the individuals, stated the dates when they had been interviewed, such as for Mr Da Silva it was said he had been interviewed in person on 7 February in Sevenoaks and in a follow up by Teams on 10 March (1126). For Mr D’Ammassa the document recorded that the interview had been undertaken in ongoing conversations throughout the investigation over Microsoft Teams (1113). The format which was used was to include a table which showed in the left-hand column what were described as “NC Questions” and in the right-hand column what was recorded as the interviewee’s “Response”. In the cross examination of Mrs Coll, it was established that, despite how they were presented and what they appeared to show, the documents were not a note of an interview (or interviews) as they appeared, and they were not a record of answers given to questions asked. The documents were a collation of the information which Mrs Coll had obtained both in interviews and from emails and documents, which she then collated and presented in the way we have described. Significant portions of a number of the answers, were taken from the emails provided. The document regarding Mr Morris (1130) included only one question being asked, even though he had been interviewed over two dates. Those documents were sent to the claimant at the conclusion of the investigation.

[111]We found the way in which Mrs Coll’s investigation was presented to be utterly disingenuous and highly misleading. The impression given, from the tables provided, was of the document recording the answers given by a witness to questions asked, when they did not record that at all. At the least, the documents were of no genuine use because they provided no record of what had been said in the interviews (not least because what had been said could not be distinguished from what had been said in emails and documents). At the most, the document misrepresented what had occurred. We accepted the evidence of Mrs Coll that the interviews recorded took place and, for example, we accepted from her evidence and that of Mr Da Silva that they met in Sevenoaks on 7 February. However, what exactly was said by any of the attendees when she met with them, was impossible to identify from the documents provided. It was Mrs Coll’s evidence that the approach taken was one which she took based upon legal advice. Misjudged as any such advice may have been, we nonetheless accepted that was the reason why she took the approach which she did.

[112]On 31 March the claimant was sent a number of documents by Mrs Coll. The documents included a letter determining the grievance (1171). They also included an employee concerns report (526). Both were very lengthy documents, and we will not endeavour to reproduce all that was said in this Judgment.

[113]In respect to the grievance, Mrs Coll’s decision was that the grievance regarding detrimental treatment was not upheld. In the section of the letter on process and investigation, Mrs Coll listed six people with whom she said she had conducted investigation meetings, and she said she had also provided the claimant with copies of the meeting notes and the evidence collected. In relation to Mr D’Ammassa and the meeting of 20 January, Mrs Coll concluded that his frustration had been addressed to the room as a whole. It was said that the claimant being unable to access Teams or Outlook on 21 January was “an unintended consequence when Carl made the request to delete the email from your inbox”.

[114]The Employee Concerns Report (526) was an expanded version of a report which Mrs Coll had previously prepared. It addressed the alleged disclosures raised by the claimant, and Mrs Coll’s conclusions on each of those alleged disclosures. It was her conclusion that none of the matters raised had been protected disclosures, and (for a number of them) that the claimant could not have reasonably believed that they were.

[115]The disciplinary appeal outcome was sent to the claimant on 3 April in an eleven-page letter from Mr Morris (918). The appeal was not upheld. In the letter, Mr Morris detailed his findings against each of the appeal grounds. He concluded that an adequate investigation had been conducted and there had been sufficient evidence of the alleged misconduct taking place prior to the invitation to address the allegations formally at a disciplinary hearing. He said that the allocation of the same person as both investigating and disciplinary manager was an approach that the company had taken before. He said that he had found nothing which suggested that the outcome had been pre-determined or that the claimant had been denied due process. He found there to have been no evidence that any of the concerns which the claimant had raised informally to Mr D’Ammassa or Mrs Coll, or formally to Mrs Coll, had any impact on the decision to dismiss. He noted that the disciplinary allegation came to the attention of Ms Harper-Bond on 31 January entirely separately upon her receiving the no-show charge from the hotel. The appeal was not upheld.

[116]We heard some evidence regarding notes. In explaining her evidence during cross-examination, the claimant made reference to having noted what occurred in her workbook. No such notes had been included in the bundle. We asked the claimant about those notes. She explained that she had disposed of the notes. Had the notes contained any genuine record of the claimant making the protected disclosures which she alleged she had made, we found that it was not credible that the claimant would simply have disposed of those notes. Mr D’Ammassa informed us that he rarely made any notes in his one-to-one conversations and, if he did, he wrote down what needed to be done on a piece of paper, and it would have been thrown away later when the thing was done. He clearly considered the absence of notes to be a positive thing, and he explained that it was what he had always done without issue. It was self-evident that we would have benefitted considerably from having a far better paper trail recording what exactly had been discussed in one-to-ones with the claimant, and any issues which had been raised by her. The absence of any notes from those meetings did not assist anyone in evidencing what had been said.

[117]This Judgment does not seek to address every point about which we heard or about which the parties disagreed. It only includes the points which we considered relevant to the issues which we needed to consider in order to decide if the claims succeeded or failed. If we have not mentioned a particular point, it does not mean that we have overlooked it, but rather we have either not considered it relevant to the issues we needed to determine or we have not considered it necessary to refer to in these reasons.

The Law

[118]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.”

[119]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, … (e) that the information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed”

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

[121]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 (etc) or that something is to be deliberately concealed, the information has to show that it is probable or more probable than not, that it would.

[122]The necessary components of a qualifying disclosure are: 122.1. First, there must be a disclosure of information; 122.2. Secondly, the worker must believe that the disclosure is made in the public interest; 122.3. Thirdly, if the worker does hold such a belief, it must be reasonably held; 122.4. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f) of section 43B(1) (in this case being (b) and/or (f)); 122.5. Fifthly, if the worker does hold such a belief, it must be reasonably held.

[123]Unless all five conditions are satisfied there will not be a qualifying disclosure. Those steps are clear from the statute but were very clearly and helpfully summarised by HHJ Auerbach in Williams v Michelle Brown AM

EAT/0044/19

[124]The first stage involves a consideration of whether there has been a disclosure of information. A disclosure of information must involve conveying facts, not simply voicing a concern or raising an allegation. The correct approach to determining a disclosure of information was set out in the decision of the Court of Appeal in Kilraine v London Borough of Wandsworth

[2018] ICR 1850

. In that decision the Court highlighted that, on occasion, an allegation could be so general and devoid of specific factual content that it would not be a disclosure of information. However, there is not a rigid dichotomy between an allegation and information. In applying the statutory provision, the word “information” has to be read with the qualifying phrase, “which tends to show” etc. In order for a statement or disclosure to be a qualifying disclosure, according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in section 43B(1).

[125]It is necessary to consider whether the employee holds the belief that the disclosure tends to show one of the relevant forms of wrongdoing and whether that belief is 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 us to determine.

[126]In respect to the breach of a legal obligation, other than in obvious cases, the source of the legal obligation should be identified and capable of verification by reference to statute, regulation or the common law. For concealment, the subsection includes the requirement that the belief is that the thing is likely to be deliberately concealed, so it does not cover inadvertent concealment.

[127]In his submissions, the respondent’s counsel emphasised that what must be determined is what the claimant believed at the time when the disclosure was made, not what she may have come to believe later, relying upon Dodd v UK Direct Business Solutions

[2022] EAT 44

(and we particularly noted what was said in paragraph 55 of that Judgment). He emphasised that the belief that the disclosure is made in the public interest must be a belief at the time, not a belief identified retrospectively.

[128]In Chesterton Global Ltd v Nurmohamed

[2018] ICR 731

Underhill LJ held that the same approach, involving both the 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. What is “in the public interest” does not lend itself to absolute rules. The broad intent behind the amendment to section 43B(1) to require a worker to believe that the disclosure was made in the public interest, was that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to a whistleblower. The larger the number of persons whose interests are engaged, the more likely it is that there will be other features of the situation which will engage the public interest. Other factors which might be relevant include the nature of the interests affected, the extent to which they are affected by the wrongdoing disclosed, the nature of the wrongdoing disclosed, and the identity of the alleged wrongdoer.

[129]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? The belief does not have to be the predominant motivation in making it (as motivation is different from belief).

[130]In his submissions, the claimant’s counsel submitted that several communications could together cumulatively amount to a qualifying disclosure even where each individual communication did not do so on its own, relying upon Simpson v Cantor Fitzgerald Europe

[2020] EWCA Civ 1601

. The respondent’s counsel disputed that applied in the circumstances of this case. The claimant’s counsel also submitted (entirely correctly) that it was necessary to assess a statement in the light of the particular context in which it was made, relying upon the example given in Cavendish Munro Professional Risks Management Ltd v Geldud

UKEAT/0195/09

and what was said in Kilraine and Eiger Securities LLP v Korshunova

UKEAT/0149/16

[131]The claimant’s counsel reminded us that the expression of an opinion can amount to a qualifying disclosure. He relied upon McDermott v Sellafield Ltd

[2023] EAT 60

in which it was said that it is a principled error to assume that just because the communication conveyed an expression of opinion, it could not also have communicated information sufficient to have fulfilled the concept of a qualifying disclosure. The claimant’s counsel also emphasised that a query or question can amount to a disclosure of information (depending upon the content and context).

[132]The claimant’s counsel also, correctly, reminded us that the claimant does not have to prove that the facts or allegations disclosed are true, or that they are capable in law of amounting to one of the categories of wrongdoing listed in the legislation. What is important is what the claimant believed and whether that belief was reasonable. We would emphasise that it formed no part of our role to determine whether the things about which the claimant said she disclosed information, were in fact breaches of a legal obligation or a regulatory breach by the respondent. There is nothing in the protection for whistleblowers, which requires them to be right (Babula v Waltham Forest College

[2007] IRLR 346

). The test is what the claimant believed the information disclosed tended to show, and the claimant’s counsel relied upon Soh v Imperial College of Science Technology and Medicine

UKEAT/0350/14

and Durey v South Central Ambulance Service NHS Foundation Trust

[2024] EAT 173

in emphasising the difference between those words and a claimant needing to know that something was true or definitely did exist.

[133]The claimant’s counsel also relied upon a first instance Employment Tribunal decision in Daniels v United National Bank Ltd ET/2204139/21 as demonstrating the persuasive nature of a disclosure made in the regulated banking sector being in the public interest (whilst he appropriately acknowledged the fact that we were not bound to follow a first instance decision).

[134]Where a disclosure was made for mixed grounds, including for personal benefit, that did not mean that it also could not be made in the public interest (the claimant’s counsel relied upon Chesterton when making that submission). He also relied upon Dobbie v Felton t/a Feltons Solicitors

UKEAT/0130/20

and Morgan v Royal Mencap Society

UKEAT/0272/15

as being cases which demonstrated that things which at first blush may appear to be restricted to purely individual circumstances, may in fact involve disclosures which the individual reasonably believed were made in the public interest (in oral submission he placed particular emphasis on the Morgan case).

[135]When considering remedy, section 49(6A) of the Employment Rights Act 1996 provides for the remedy to be reduced if the public interest disclosure was not made in good faith.

[136]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.

[137]In determining whether a claimant has suffered a detriment as a result of having made a public interest disclosure, we 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

. The respondent’s counsel emphasised in his submissions that it is not enough for the claimant to say that the first respondent was materially influenced by the protected disclosure, we are required to find that an individual was motivated by it and made the relevant decisions.

[138]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 person at the employer acting as it did. It is, of course, 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.

[139]The claimant’s counsel submitted that, as a matter of law, if we rejected the respondent’s argument, the consequence of an employer failing to prove that the act, or failure, complained of was not on the prohibited ground, the question or issue must be determined in favour of the claimant (Edinburgh Mela Ltd v Purnell

UKEATS/0041/19

[140]A worker is subject to a detriment if she is put at a disadvantage. The concept of detriment is very broad and must be judged from the viewpoint of the worker. There is a detriment if a reasonable worker might consider the relevant treatment to constitute a detriment. The claimant’s counsel reminded us of what was said in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

[141]In his skeleton argument, the claimant’s counsel submitted that there was no absolute requirement on the part of the person potentially responsible for a detriment to be aware of the full content of the disclosures. He said that they only needed to be aware of something of the substance (relying upon Nicol v World Travel and Tourism Council

[2024] EAT 42

[142]In his submissions, the respondent’s counsel did not argue that we were not able to consider the dismissal as a detriment. That was correct, following the Court of Appeal Judgment in Rice v Wicked Vision Limited

[2025] EWCA Civ 1466

. That decision followed Timis v Osipov

[2019] ICR 655

and found that the earlier Judgment was binding on the Court. As a result, we were able to consider the claim for dismissal detriment relying upon vicarious liability, even though the claimant’s claim for automatic unfair dismissal had previously been dismissed.

[143]There was argument about the impact which the decision in Jhuti had in the circumstances of this case and what it was we were being asked to decide. In considering that issue, we considered the Judgment of the Employment Appeal Tribunal in Henderson v GCRM Ltd

[2025] EAT 136

which had been provided to us and which helpfully summarised Jhuti and highlighted what had also been said in The Co-Operative Group Limited v Baddeley

[2014] EWCA Civ 658

and William v Lewisham & Greenwich NHS Trust

[2024] ICR 1065

. In summary, the Employment Appeal Tribunal in Henderson found that Jhuti could not be applied to a decision by one person to make that person individually liable for detriment, where that person had been provided with tainted information involving the invention or manipulation of facts so as to deceive an innocent actor. The respondent’s counsel provided us with a copy of the Henderson Judgment and submitted that the idea of a tainted decision could not apply to a detriment of dismissal claim against the respondent. The claimant’s counsel contended that it could and, further, should.

[144]During submissions we highlighted what was said at the end of paragraph 50 of the Judgment in Henderson in which the Lord Fairley said: “There is also no obvious reason in principle why Jhuti could not, in appropriate circumstances, apply to a direct claim against an employer for non-dismissal detriment in terms of section 47B(1)”

[145]The respondent’s counsel highlighted that what was said was limited to a non-dismissal detriment. He submitted that paragraphs 45-52 of that Judgment made that clear. We considered that passage from the Henderson Judgment and concluded that the respondent’s counsel was right and that arguments about a tainted or influenced dismissal could not be pursued as a detriment dismissal claim. We would add that this case (which we were determining) made clear how difficult that limitation may be to apply in practice, if such influence may need to be considered for any other non-dismissal detriments (in this case including therefore potentially the appeal decision) if only a dismissal detriment is exempt. When considering the appeal detriment complaint we considered what we would have found in any event (as explained below) and, as a result, it was immaterial to the outcome in this case whether Henderson technically left us able to consider an allegedly tainted or influenced appeal detriment case, even though it meant we could not consider an allegedly tainted or influenced dismissal detriment.

[146]For the dismissal, the respondent’s counsel reminded us that we should not step into the shoes of the person who decided to dismiss. He emphasised that the fact that we would have come to a different conclusion, did not mean that Miss D’Souza’s decision was wrong or (more importantly) that her decision was materially influenced by a protected disclosure. He also emphasised that we were not considering an unfair dismissal claim and so were not deciding procedural fairness. He acknowledged that there are always improvements that can be made to a disciplinary procedure. He submitted that the only relevant question regarding procedure was whether we considered that a procedural error was so flawed that it demonstrated that the dismissal must have been motivated by (or materially influenced by) a protected disclosure which had been made?

[147]Time limits in detriment cases are set out in section 48 of the Employment Rights Act 1996. The claim must have been presented before the end of the period of three months beginning with the date of the act or failure to act to which the compliant relates (extended by any period of ACAS Early Conciliation). Section 48(3)(a) also provides that where the act or failure is part of a series of similar acts or failures, it must be brought within three months (plus any extension) of the last of them.

[148]We were required in this case to consider the ACAS code of practice on disciplinary and grievance procedures. We did so and will not reproduce in this Judgment what is said in that code, save to highlight that the code says that employers should deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.

[149]Both counsel referred to a variety of case law in their submissions. We have not referred to all the cases cited. Amongst other things, in his submissions, the claimant’s counsel also referred to law on the truthfulness of witnesses. The fact that we have not reproduced or detailed all that was said, does not mean that we did not take it into account. Conclusions – applying the Law to the Facts Alleged disclosures

[150]We started by considering whether the claimant had made qualifying disclosures within the meaning of section 43 of the Employment Rights Act 1996 in the ways alleged at issue two in the list of issues. The alleged disclosures relied upon were listed as (a)-(e), but in practice relied upon eight alleged protected disclosures because three of the disclosures alleged were on the same date (12 October 2022) and recorded in (a) as the first disclosure, and two of the disclosures alleged were in fact a conversation/meeting and an email on 20 January 2023, being two separate alleged disclosures.

[151]For each of the alleged disclosures we followed the five steps set out in paragraph 122 above (albeit we considered whether the claimant believed the disclosure tended to show the things relied upon first and then the reasonableness of that belief, before considering whether she believed the disclosure was made in the public interest (and the reasonableness of that belief) second).

[152]There were three conversations which the claimant said had taken place on 12 October 2022 with some combination of the three people named in the list of issues at 2(a). She said a conversation took place with Ms Michael. She said a conversation took place with Mr Stephens. She said a further conversation took place with both Ms Michael and Mr D’Ammassa together. We considered in turn each of those alleged conversations and the alleged disclosure or disclosures made in them.

[153]The first conversation which the claimant had with Ms Michael on 12 October 2022 and what the claimant said in that conversation, was described in paragraph 45 of the claimant’s witness statement. It was a conversation which followed the one-to-one meeting which the claimant had conducted with Mr Baks. In cross-examination, Ms Michael accepted that a conversation with the claimant about her conversation with Mr Baks would have taken place on that date. We found that a conversation did take place, and we accepted that what the claimant told Ms Michael was what she recorded she said in paragraph 45 of her witness statement. We found that the claimant did provide Ms Michael with information, being information about the facts of what had been said in the meeting between the claimant and Mr Baks. We accepted the claimant’s evidence about what it was she said.

[154]As explained in the section on the law above, we then needed to decide whether the claimant reasonably believed (at the time) that the information which she was providing was information which tended to show that someone had failed to comply with a legal obligation to which they were subject (or was failing or would fail to comply). Considering the information which it was recorded and found that the claimant provided about the meeting as described at paragraph 45 of the witness statement, we did not find that the claimant did believe that she was disclosing information which tended to show what was required. The information she provided was about the one-to-one, not about/related to legal obligations. Even had we found that the claimant had believed that she was disclosing information which tended to show that the respondent had failed to comply with a legal obligation to which it was subject (or was failing or would fail to comply), we would not have found it to have been reasonable for the claimant to have had that belief. In reaching that decision we focussed on what it was the claimant said she had explained and the fact that the information she provided was about her meeting with Mr Baks.

[155]Neither the list of issues nor the claimant’s skeleton argument explained which of the disclosures were said to be a qualifying disclosure applying section 43B(1)(b) (legal obligation) and which were said to be a qualifying disclosure applying section 43B(1)(f) (information being deliberately concealed). For the information disclosed in the first conversation with Ms Michael on 12 October 2022, we could not see that there was anything about what was disclosed to which the subsection on deliberate concealment could relate or apply.

[156]The second conversation which the claimant evidenced that she had on 12 October 2022 was a conversation with the Chair of the respondent, Mr Stephens. The evidence which the claimant gave about that conversation was set out at paragraphs 48-54 of her witness statement. We did not hear evidence from Mr Stephens (and no explanation was provided for why not - the respondent could have called him to give evidence had they wished to dispute the claimant’s account). We did have a document which recorded an account of what Mr Stephens might have informed Mrs Coll about what the claimant said to him (1041a). That document was one which was prepared in the course of Mrs Coll’s grievance/whistleblowing investigation, but which was not provided to the claimant when it was completed (the claimant was provided only with a briefer version of the document (1132) which did not contain the account of 12 October meeting). We gave the account contained in that document very limited weight because of the concerns we have explained in the section on the facts above about the records taken by Mrs Coll, the fact that the notes were not prepared genuinely as a record of a meeting and/or a conversation, and because we did not hear from Mr Stephens under oath.

[157]In considering the claimant’s evidence about what she informed Mr Stephens, we accepted that she provided information to Mr Stephens about her meeting with Mr Baks earlier that day. We did not find that the claimant believed that the provision of that information was information which tended to show that someone had failed to comply with a legal obligation to which they were subject (or was failing or would fail to comply) or that it would have been reasonable for her to so believe, for the same reasons as we found for the earlier conversation with Ms Michael (it being the claimant providing the same information).

[158]On the claimant’s evidence, she went on to provide information to Mr Stephens about Mr Stafferton, what he had said in a client meeting and the claimant’s view of that information. She said she disclosed the fact that Mr Stafferton had not addressed Mr Bak’s conduct. We accepted the claimant’s evidence that she raised issues regarding Mr Stafferton and Mr Baks, and (more importantly) she provided information about what Mr Stafferton had said in the client meeting. We found it entirely plausible that the claimant had criticised her predecessor to Mr Stephens in that way and had provided the information asserted about why she was doing so. We did not find that the entire conversation between the claimant and Mr Stephens went as the claimant asserted in her evidence. We found it inconceivable that the Chair of the organisation would have gone on to say what the claimant alleged at paragraphs 52 and 53 of her witness statement, when he had heard only one side of the story and in his position as Chair. However, we found that the claimant did raise what she alleged about Mr Stafferton.

[159]We found that the claimant did disclose information about Mr Stafferton, as we have described, in her conversation with Mr Stephens. We accepted that the claimant reasonably believed that what she said disclosed information which tended to show that the respondent was failing to comply with its obligations as a regulated body when selling to customers. We would highlight that it was not for us to consider or determine whether in fact the respondent had breached any legal obligation, what we needed to decide was whether the claimant genuinely believed that the information disclosed tended to show that it had, and we found that she did. We also found that her belief that the information disclosed tended to show that a legal obligation had been breached, in the context of the respondent being a regulated business, was reasonable. We also found that the claimant thought that the information disclosed was in the public interest, where she was disclosing information about purported mis-selling in the context of a regulated body and we found that belief to have been reasonably held. As a result, we found that the disclosure made by the claimant to Mr Stephens on the 12 October 2022 about Mr Stafferton, was a qualifying disclosure and, as it was made to the respondent’s Chair, it was a protected disclosure.

[160]The third conversation on the 12 October 2022 upon which the claimant relied, was a subsequent conversation with Ms Michael and Mr D’Ammassa together. We noted that the conversation was recorded as having taken place in the chronology which we were provided (prepared by the respondent and which we understood to be largely agreed). It was the claimant’s evidence that she informed Ms Michael and Mr D’Ammassa about her earlier meeting with Mr Baks. We have already addressed what the claimant said about that in earlier meetings that day and why we did not consider it to have been a qualifying disclosure.

[161]In her evidence, the claimant also said that she went on to inform Mr D’Ammassa and Ms Michal about feedback she had received from Mr Atherton. In her statement she said that she had referred to the impact on the team members’ mental health and that a member of Mr Atherton’s team would not agree to meetings without a third-party present, due to damage inflicted on her by Mr Baks. We found that the claimant spoke about Mr Baks and her earlier meeting with him and that she may have referred generally to her conversation with Mr Atherton, but we did not find that the claimant specifically said what she stated in her witness statement. We found that elements of the claimant’s accounts about what she had said on any specific occasion, had been written with hindsight and in the light of this claim and her preparations for it. That was, in part, demonstrated by the claimant’s detailed account of what she had said in a meeting with Mr D’Ammassa on 4 November, when we found that she could not have said what she evidenced because we accepted Mr D’Ammassa’s evidence that he was moving house and would not have spoken on that date. We also did not accept that the statement reflected what the claimant had recorded in her workbook (if that was the suggestion), as, had the claimant recorded details of qualifying disclosures in her workbook, we found that she would have retained those notes and not disposed of them. We did not find that the account given by the claimant of what she recorded as having said about Mr Atherton and his reports, fitted within the chronology of events and would have been what she said in any conversation at the end of the day when she had undertaken a one-to-one meeting with Mr Baks herself.

[162]Based upon what we found the claimant did say about Mr Baks in her conversation with Ms Michael and Mr D’Ammassa on 12 October, we found that she did in broad terms provide information about Mr Baks and a conversation which she had had with Mr Atherton about him. We accepted that if an individual provided information to someone else which contained allegations of sexual harassment, that individual could reasonably believe that there had been a failure to comply with a legal obligation. However, on that occasion and based upon what we found that the claimant said and the information she in fact provided (which would have been limited and not as specific to mental health or damage as she asserted), we found that she did not believe what she was explaining was information which tended to show that a legal obligation had been breached. We also did not find that it would have been reasonable for her to have had that belief based upon the information we found that she provided.

[163]For the information provided in the conversation with Ms Michaels and Mr D’Ammassa and in the context in which it was provided, we also did not find that the claimant believed that the information she was disclosing was in the public interest. Even had she done so, we would not have found it to have been reasonable if she had. She was providing information about one of her team members, who she was in the process of managing at the time. The information was being provided in a business-as-usual way. In that context and where she had met with him that morning in a one-to-one, she did not believe at the time that what she was telling her line manager and the Chief People Officer was information provided in the public interest, it was information about someone she was managing.

[164]The alleged disclosure set out in the list of issues at 2(b), was said to be a conversation with Ms Michael on 10 January 2023. There was no evidence of such a conversation, but what in fact appeared to be relied upon was a WhatsApp message sent on that date (1235). We have quoted the entirety of that message in the facts above. We considered carefully whether the message provided any information at all. The message was a question, but we have accepted that on occasion a message may contain information even as part of a question asked. We found that this message did provide some limited information, which was that Mr D’Ammassa was dealing with Mr Baks’ bonus separately.

[165]We did not find that when the claimant provided that limited information to Ms Michael in the WhatsApp message that she sent, she believed that it was information that tended to show a breach of a legal obligation. The claimant accepted in cross-examination that there was no breach of a legal obligation being shown. In terms of whether she believed that it showed deliberate concealment, we did not find that she did either. Section 47B(1)(f) does not relate to any concealment, it requires that it must be deliberate concealment of one of subsections (a) to (e), and where the only relevant other subsection was legal duty and the claimant accepted that no breach of a legal obligation was being shown, we found she did not believe that was being deliberately concealed. We also found that to be clear from the way that the message was written, which was as a question. It was enquiring, it was not providing information which tended to show what was required. Based on the limited information provided, we also did not find that the claimant believed that what she was saying in the message was in the public interest and it would not have been reasonable for her to consider that, even if she had.

[166]We would also observe that we fully accepted Mr D’Ammassa’s explanation about why it was that Mr Baks’ bonus had initially been included in the claimant’s list but had then been moved to Mr D’Ammassa’s own list. That was based upon the things which he had asked Mr Baks to do, and him being the person to assess whether those things had been achieved. We therefore understood why the thing being raised by the claimant had occurred. It was however, of course, our task to assess what the claimant believed (and the reasonableness of that belief), not whether the thing about which she said she allegedly made the disclosure was in fact correct.

[167]Within the alleged disclosure relied upon at issue 2(c), there were in fact two alleged disclosures. The first of those was alleged to have been made at the senior management team meeting on 20 January 2023. We were provided with evidence from a number of people present in that meeting about what was said by the claimant, and we were provide with a number of written accounts recorded by attendees shortly after the meeting (including Mr Morris (1040) and Mr Baxter (1061)).

[168]It was not in dispute that the claimant had been supportive of Mr Baks being appointed to the senior leadership team and she was keen to emphasise when being cross-examined that positive things about him were said by her (which was the reason why the claimant responded to Mr D’Ammassa’s later statement that he had not heard one positive comment about Mr Baks from anyone other than Mr Stafferton, because she considered that to have been untrue and unfair). The issue that the claimant raised about Mr Baks’ appointment, was that the respondent needed to be mindful of the message which could be inferred by other colleagues from his appointment. That is, that the claimant made the comments which she made in the meeting to explain her concerns about the optics of his appointment, not because she disagreed with it.

[169]It was also clear that the claimant must have referred in the meeting to the fact that Mr Baks had made someone or some people cry, because that was the reason for Mr D’Ammassa’s observations about making the claimant cry and what that meant (which was not in dispute).

[170]In the note which he prepared on or around 9 March 2023 (1040), Mr Morris recorded that the claimant had raised a point that there had been instances when Mr Baks’ actions had upset people on a number of occasions and made them cry. Mr Baxter’s account of 25 January 2023 (being a director who was not otherwise involved in the case) was that the claimant expressed concern that, since Mr Baks had heard the news and had one-to-ones with Mr D’Ammassa, she had seen the return of some negative behaviours from him such as being rude on emails and being overbearing/overdemanding with others. In the context of a large senior management team meeting in which the claimant was challenging optics but was agreeing to the appointment, we did not find that the claimant would have said exactly what she recorded in her witness statement, where that was not what was recalled by others. We did not find that she said that multiple women and junior members of the team had raised serious concerns about the detrimental harm caused by Mr Baks or that the concerns had never been investigated. She did not say that Mr Baks had caused harm to multiple women. Doing so would have been inconsistent with her only concern being about the optics of the appointment and would have been recalled by others. As with the claimant’s account of the third conversation on 12 October, we did not find that the account recorded by the claimant in the list of issues accurately recorded what she had said, albeit much of what she said was true and accurate.

[171]We were required to decide whether the claimant believed, at the time, that the information which she was providing tended to show that someone had failed to comply with a legal obligation to which they were subject (or was failing or would fail to comply, or deliberate concealment of such a breach). Based upon the evidence that we heard, we did not find that was what the claimant believed, when what she was raising was more generic than she asserted and where it was set in the context of her challenging the optics of the appointment (not objecting to the appointment itself). Even if the claimant had believed that at the time, we would not have found it reasonable for her to have that belief where she was raising such issues as a challenge to the optics of the appointment. We also did not find that the claimant believed that the information which she was disclosing was in the public interest. What was being discussed was a purely business decision, and she was making an observation which related to it. Even had she believed that the provision of information was made in the public interest, we did not find that such a belief would have been reasonable in the context of that particular meeting, and what was being discussed.

[172]The second alleged disclosure relied upon as part of issue 2(c) was the email which the claimant sent to Mr D’Ammassa on 20 January 2023. That email was in the bundle (476/477) and as a document we were able to consider exactly what the claimant said. Within the email, the claimant did provide information. She said that since joining the business she had witnessed and received multiple escalations regarding the same unacceptable behaviours of the three people named in the email. We would observe that the information provided in the email was somewhat vague and non-specific. We found it to be a very finely balanced issue to determine whether, when the claimant provided this information to Mr D’Ammassa at that point in time, she did believe that what she was providing showed a breach of a legal obligation, being the requirement that the respondent provide a safe place of work. As a result of what we determined regarding public interest (as explained below), we did not ultimately need to decide whether she did (and whether it was reasonable to do so).

[173]When we considered the email of 20 January, we noted that the claimant’s primary concern in the email was to address the way in which she perceived she was being managed. She said that she was being undermined. She was challenging Mr D’Ammassa and saying that he was not confronting the issues which she was raising with him. In cross-examination, the claimant accepted that she felt undermined. The provision of the information in the email was done to illustrate the claimant’s fundamental disagreement with Mr D’Ammassa’s approach. When she wrote the email and provided the information which she did in it, the claimant did so with her own personal interest in mind, addressing the issues she had with her own management. We did not find that the claimant believed that what she was disclosing was in the public interest and, in the context of what the email said, we would not have found it to have been reasonable if she had.

[174]The alleged protected disclosure relied upon at 2(d) of the list of issues, was in the conversation which the claimant had with Mrs Coll on 30 January 2023. The claimant’s evidence about what she said was very vague and non-specific about what was said. Her witness statement said only that she shared the serious concerns, the harmful experience, the detrimental treatment and the lack of resultant action taken by Mr D’Ammassa during the claimant’s time with the respondent (paragraph 283 of her witness statement). Mrs Coll’s witness statement was slightly more illuminating but no more specific (paragraph 11), her evidence being that the concerns primarily centred on her perceived relationship issues with Mr Savage and Mr Baks and her interactions with Mr D’Ammassa and Mr Stafferton (Mrs Coll said her view was that they appeared to be interpersonal issues).

[175]It is for the claimant to prove that she made a protected disclosure as alleged. Based upon the evidence which we were provided, the claimant did not do so (for the conversation on 30 January). It was not possible for us to find that information had been disclosed and what she believed when she did so, based upon the evidence provided.

[176]The final alleged protected disclosure relied upon was the claimant’s letter of 9 February 2023. The covering email for that letter (963) set out that what was attached was a letter regarding the disclosures the claimant said she had made. The letter itself (964) was lengthy and contained considerable detail about what the claimant was alleging, with names and details. It recounted matters relating to Mr Savage, Mr Baks, Mr Stafferton, compliance monitoring, and due diligence of the respondent’s (named) clients. The respondent treated the letter as containing protected disclosures and addressed it under its own whistleblowing policy.

[177]The letter clearly contained a considerable amount of information. We found that the claimant believed that what she was disclosing showed that the respondent had failed to comply with its legal obligations in various ways. The client-related disclosures were believed to show that the respondent had not complied with its duties as a regulated organisation. The employee-related disclosures as detailed in the letter, were believed to tend to show that the respondent had not complied with its duty to provide a safe place of work or its duties as a regulated body. We found those beliefs to have been reasonable. We also found that the claimant reasonably believed that what she was disclosing was in the public interest, where she was raising regulatory issues. We found that belief to have been reasonable.

[178]As a result of the other decisions which we reached, we did not in fact need to go on and determine whether the disclosures made were made in good faith. However, had we needed to have done so, we would have needed to have considered that very carefully for the letter of 9 February, which was written after the disciplinary allegations had been raised with the claimant and in the context of the claimant’s dispute with the respondent. Alleged detriments and the reasons for them

[179]We have addressed below for each of the alleged detriments what we found occurred and whether we found that they were materially influenced by the protected disclosures which we found were made. We did that for each of the detriments alleged. In his submissions, the respondent’s counsel highlighted for the 12 October disclosure to Mr Stephens, that Mr Stephens was very supportive when the claimant raised her concerns (as the claimant agreed), and he questioned why the respondent would wait for over three months to react against the protected disclosure or why it would still be motivated by it three months later. We did not find that the claimant’s disclosure to Mr Stephens on 12 October had any influence whatsoever on any of the detriments alleged. The disclosure was made in a conversation very early in the claimant’s employment. It was an isolated conversation. He was the Chair and not someone with whom the claimant worked regularly. She made no allegations that he personally had treated her detrimentally. He responded positively to the disclosures made. We will address below each of the detriments (including the Nomination Committee meeting which Mr Stephens chaired). With the exception of that meeting, Mr Stephens appeared to have had little involvement in any of the things alleged, and we found that the claimant’s disclosure to him had no material influence on any of the detriments alleged.

[180]The other protected disclosure which we found had been made, was in the claimant’s email of 9 February 2023. We have addressed that disclosure for the alleged detriments which occurred after that email was sent, but it could not have had any material influence on any of the detriments which pre-dated 9 February 2023.

[181]All of the alleged detriments at 3(a) of the list of issues were detriments alleged against the respondent and not specifically attributed to any of the individuals. The alleged detriments at 3(b)-(d) were detriments for which the allegation was that the respondent was vicariously liable for the detriment because the detriment was done by the person named. We considered each of the detriments in the order set out in the list, but in providing these reasons for our decision we have collated those detriments where the same reasoning applied.

[182]Alleged detriment 3(a)(i) was said to be making disciplinary allegations against the claimant which were unfounded and/or insufficiently serious to be regarded as grounds for dismissal and/or inconsistent with the way the respondent had treated other members of staff which resulted in a sham disciplinary process and subsequent dismissal. Alleged detriment 3(c)(iii) was Miss D’Souza undertaking a disciplinary process which was a sham, without foundation and was inconsistent with how other members of staff at the Claimant’s level had been treated. Those two allegations raised the same issues.

[183]We found that the basic element of alleged detriment 3(a)(i) was a detriment when viewed from the claimant’s point of view. The claimant was subject to disciplinary allegations. That was correct and was a detriment.

[184]We did not find that the disciplinary allegations were unfounded. What was alleged was founded in the evidence. We did not find that was what alleged was insufficiently serious to be regarded as grounds for dismissal. It was an allegation of dishonesty, which could never be said to be insufficiently serious to be potentially dismissible and certainly was not taking account of the claimant’s role and that she was a senior manager under the FCA’s senior managers and certification regime responsibilities. We did not find that it was a sham disciplinary process. The disciplinary process was entirely legitimate. There was a cogent chronology which explained how the issue came to light and why it was addressed when it was. In terms of the allegation of inconsistency, the only other employee about whom we heard evidence who was in a situation which was at all comparable was Mr Savage. He was also dismissed. The respondent had informed the claimant that it would be addressing the allegations against him. The allegations against Mr Savage were more complex in terms of the investigation required, as his circumstances involved multiple alleged expense claims and the claimant’s allegation arose from a single claim which was easily verifiable. That explained the longer and more detailed investigation which preceded disciplinary action. We did not find that the respondent (or Miss D’Souza) acted inconsistently.

[185]We did not find that the reason why the claimant was subject to disciplinary allegations was because of the disclosure which the claimant had made to the respondent’s Chair on 12 October 2022. There was no genuine evidence which linked the disclosure made to the disciplinary allegation. The disclosure was not a material influence on the disciplinary allegations being made.

[186]Alleged detriment 3(a)(ii) was that Ms Michael informed the Claimant that her conduct would be reported to the FCA for breach of the conduct rules on 1 February 2023. It was the claimant’s evidence that in the telephone call on 2 February 2023 Ms Michael informed her that a report would be made to the FCA. We understood the complaint to be what Ms Michael informed the claimant (as that is what is said) not about any actual report made. We found that the respondent informing the claimant about something which the respondent was obliged to do, was not a detriment for her. Had the respondent not informed the claimant, that potentially could have been something which could be criticised. Informing her was not (and could not have been) a detriment.

[187]We considered alleged detriments 3(a)(iii) and 3(a)(iv) together. The same issues also arose for alleged detriment 3(c)(i) and 3(c)(vi), being allegations against Miss D’Souza. Alleged detriment 3(a)(iii) was that the respondent did not follow the ACAS Code of Practice on Disciplinary and Grievance procedures and 3(a)(iv) was that it did not follow its own disciplinary policy. Allegation 3(c)(i) was that Miss D’Souza failed to conduct a fair process before dismissing the Claimant. 3(c)(vi) was that Miss D’Souza did nor follow the ACAS code.

[188]In his submissions, the claimant’s counsel set out various ways in which he said that the respondent had not followed its own procedure or a fair procedure. We agreed with what he said at paragraph 61(b)(ii)-(vi) of his skeleton argument. The policy said that an employee would be informed of the investigation outcome at the conclusion of any investigation; that did not occur. The policy said that signed witness statements would be produced, but they were not. It was said that once an investigation was completed, the individual conducting the investigation should decide whether or not to recommend formal disciplinary action and the employee would be informed at the earliest opportunity. That did not occur. The policy said that the investigation manager was responsible for completing a disciplinary summary report with accompanying evidence to be presented to an independent hearing manager. That was not done at all. The respondent did not follow its own procedure.

[189]More generally, we did not find that the process followed was fair or accorded with the ACAS code. After the disciplinary hearing, but before making her decision, the person responsible for making the disciplinary decision met with a number of other senior people and discussed the process, giving them the opportunity to influence her as the decision-maker. That was unfair and outside the process set down in the ACAS code. We also found that Miss D’Souza undertook the process with a pre-conceived view of the likely outcome. She looked at the allegation in a very binary way. The letter she sent in advance of the disciplinary hearing and the unusual paragraph in it which we have highlighted in the facts, what was said in the email of 6 February about the issue being straightforward, the way she was recorded as having spoken in the transcript of the disciplinary hearing, and the summary which she gave to the nomination committee meeting (which was held before the claimant had sent her additional material to Miss D’Souza), all suggested that she had a pre-conceived outcome in mind which needed to be shifted, rather than an open-mind. She had a very fixed view (which the nomination committee supported). We also found that she was inconsistent in the weight which she gave to Mrs Abbott’s feelings and account, as it appeared to have been taken into account in the decision, when no statement had been taken from her or been provided to the claimant. The process followed did not adhere to the ACAS code or the respondent’s policy and was not fair. It was a detriment.

[190]We accepted Miss D’Souza’s evidence that the decision which she reached was her own. We also accepted Miss D’Souza’s evidence that she reached her decision for the reasons which she evidenced and that she was not materially influenced by the disclosure the claimant made on 9 February. The flawed procedure had nothing whatsoever to do with the disclosure previously made to the respondent’s Chair on 12 October 2022. Miss D’Souza was very inexperienced in handling disciplinary matters involving potential gross misconduct, she was new to the organisation, and she did not know about the disclosure made on 12 October. We found that her strong view about the misconduct was her own. Her decision was not materially influenced by either of the protected disclosures which we have found that the claimant made.

[191]We did consider the nomination committee meeting when considering this allegation and the other allegations regarding the dismissal. The claimant’s counsel submitted that there could be little doubt that the decision to dismiss the claimant was taken at the nomination committee meeting. We did not find that to have been the case. We found that Miss D’Souza already had a pre-conceived view of the likely outcome before the disciplinary hearing and that was certainly the case by the time she set out what were described as her initial thoughts to the nomination committee (and from what was said they appeared to be much closer to being a final decision). As we have made clear, we were very critical of the nomination committee meeting taking place in terms of fairness, but we did not find that what was said in fact changed the outcome which Miss D’Souza had largely already decided.

[192]Alleged detriment 3(a)(v) was the respondent failing to take the claimant’s whistleblowing concerns seriously and not investigating them. In his submissions, the respondent’s counsel contended that what was alleged was too vague to be a detriment. We agreed with that submission. Mr Da Silva considered the matters raised with him to have been whistleblowing. There was an investigation of the claimant’s grievance and whistleblowing issues. That investigation was undertaken by Mrs Coll, a non-executive director. There were procedural flaws in how that was documented, as we have addressed in the facts above. However, we did not find that the respondent failed to take the matters raised seriously, where a nonexecutive director looked into what was raised and wrote a lengthy report. The respondent did investigate the things which the claimant raised. The detriment alleged did not occur.

[193]Alleged detriment 3(a)(vi) was Mr Morris not upholding the claimant’s appeal against the decision to dismiss her. Not having her appeal upheld was a detriment for the claimant, as looked at from her point of view. We had no criticism of the appeal process or outcome. We accepted Mr Morris’ evidence that he did not uphold the appeal for the reasons which he explained. We did not find that he had been materially influenced by either of the protected disclosures which had been made, in the decision which he reached and explained in evidence.

[194]Alleged detriment 3(a)(vii) was said to be the respondent failing to provide the claimant with a copy of a complaint about the claimant to the FCA despite being requested to do so, thus forcing the claimant to make a data subject access request for such report. We heard no evidence from the claimant about that complaint. The claimant’s counsel’s submissions did not address it. As was highlighted by the respondent’s counsel in his submissions, this appeared to have been raised and responded to in the emails of 15 and 17 March as detailed in the facts above (1138). The claimant asked whether she would be provided with a copy of the report sent to the FCA or whether she needed to make a data protection subject access request. Mr Morris responded to say it would be provided. There was no evidence that the claimant was subjected to a detriment. The evidence that we heard was insufficient for us to have found any detriment, in the absence of any evidence from the claimant about it and why it might have been a detriment. Nothing appeared to have been withheld, based upon the evidence provided.

[195]Alleged detriment 3(b)(i) was that Mr D’Ammassa’s interactions with the claimant were threatening, intimidating, belittling and humiliating. That was a very vague allegation which was lacking in specifics (such as the date or dates) and that was not further clarified in the claimant’s counsel’s submissions. We found that, generally, the claimant and Mr D’Ammassa had a fairly good working relationship. That was clearly evidenced by the email which the claimant sent to him on 2 December, following the Christmas party, and what she said in it about his leadership. We considered that email to be important and what the claimant said was entirely inconsistent with Mr D’Ammassa having acted towards her in the way alleged prior to that date. It was clear that the claimant’s view of the relationship was that it deteriorated in the week leading up to the meeting on 20 January 2023. We accepted Mr D’Ammassa’s evidence that the claimant’s reaction in the meeting on 20 January was a surprise to him. Whatever occurred in the interaction between Mr D’Ammassa and the claimant in the week leading up to 20 January and the reasons for it, we found that the claimant’s conversation with Mr Stephens on 12 October 2022 had no material influence on what occurred. It had nothing to do with it.

[196]Alleged detriment 3(b)(ii) was that Mr D’Ammassa accused the claimant of being paranoid. There was no dispute that the word paranoid was said in a oneto-one meeting about the claimant. The issue in dispute was whether it was said by Mr D’Ammassa about the claimant or by the claimant in reference to herself. That was a direct conflict of evidence. The claimant’s evidence was limited to saying that it happened. We found that we preferred Mr D’Ammassa’s evidence on this dispute, where the claimant’s own evidence on what exactly was said in oneto-one meetings was unreliable where she had detailed what had been said in a meeting of 4 November, which we found did not happen. We also found that if it was alleged that Mr D’Ammassa had said this in a one-to-one meeting prior to 2 December, it was inconsistent with what the claimant said about him and his leadership in her email of that date. We therefore did not find that Mr D’Ammassa described the claimant as paranoid as alleged, and we did not find that the alleged detriment occurred. In any event, we did not find that anything said to the claimant in one-to-ones by Mr D’Ammassa was due to (or was materially influenced by) what the claimant had said to Mr Stephens on 12 October.

[197]Alleged detriment 3(b)(iii) was that Mr D’Ammassa excluded and isolated the claimant from the organisation and her colleagues after 20 January 2023. In considering this allegation, we looked carefully at what was said in the emails exchanged after the meeting between Mr D’Ammassa and the claimant (476). The claimant was instructed not to engage with company business and, when the claimant asked whether he was instructing her not to have any interaction with anybody in the business, he replied yes. That was an instruction which isolated the claimant from the organisation and her colleagues. That was a detriment, looked at from the claimant’s point of view. However, we did not find that the claimant’s disclosure to Mr Stephens on 12 October had any material influence on the instructions which Mr D’Ammassa gave the claimant after the meeting on 20 January. The reason why he gave that instruction to the claimant was because of what the claimant had said to Ms Michael after she had left the meeting, that she could not work with Mr D’Ammassa anymore and she wished to (or was) resigning. Mr D’Ammassa gave the claimant those instructions in response to what she had said and as Mr D’Ammassa was out of the business on holiday. It was not because of the disclosure which the claimant had made (and was not materially influenced by it).

[198]Alleged detriment 3(b)(iv) was that on 20 January 2023 Mr D’Ammassa instructed colleagues to access the claimant’s inbox, change her password and delete an email he had sent. Mr D’Ammassa did instruct IT to retrieve or delete the email which he had sent to the senior leadership team. That resulted in a password reset. The change of password was not the intention of Mr D’Ammassa’s instruction, but a by-product of it, as the claimant appeared to accept. Even if the instruction and its effects were a detriment looked at from the claimant’s point of view, we did not find that it was because of the claimant’s protected disclosure to Mr Stephens the previous October (it was not materially influenced by it). It was because Mr D’Ammassa wanted to ensure that the claimant did not read the email which he had sent.

[199]Alleged detriment 3(b)(v) was that Mr D’Ammassa lied about a conversation he had with the claimant as part of the disciplinary process. That allegation arose from Mr D’Ammassa’s email of 1 February to Miss D’Souza (883). What was said, and Mr D’Ammassa’s evidence about it, is addressed in the section of the Judgment which details the facts. We did not find that Mr D’Ammassa lied about the conversation which he had had with the claimant. We accepted Mr D’Ammassa’s evidence that he had recalled part of one of the one-to-one conversations, which was recounted in the email. As he did not lie, the email which he sent was not a detriment. Indeed, we could not see why the account provided was detrimental for the claimant. The email did not evidence the booking of a room in Ms Brown’s name or the reason for it, but it did address the background facts in a way which broadly supported the claimant’s version of events. We did not find that the disclosure which the claimant had made to Mr Stephens in October had any influence whatsoever on Mr D’Ammassa sending the email in February. There was no evidence that it had done so.

[200]Alleged detriment 3(b)(vi) was that Mr D’Ammassa provided contradictory statements when interviewed by Mr Morris and Mrs Coll. In his submissions, the respondent’s counsel contended that this was not stated in the claimant’s witness statement, and the respondent did not understand what was alleged. We agreed with that submission. We did not find that there had been a detriment as alleged.

[201]Alleged detriment 3(b)(vii) was that Mr D’Ammassa breached the claimant’s confidentiality during the disciplinary process. In his closing submissions, the respondent’s counsel said that the allegation was simply not stated or explained in the claimant’s witness statement and the respondent did not know what allegation it was supposed to answer. As with the previous allegation, we agreed with the respondent’s submission. We did not find that the detriment alleged had occurred.

[202]We have already addressed alleged detriment 3(c)(i) when determining 3(a)(iii) and 3(a)(iv) above. Alleged detriment 3(c)(ii) was said to be Miss D’Souza attempting to force the claimant to attend a disciplinary hearing with less than 48 hours’ notice. The disciplinary hearing, even when first arranged, was not arranged with less then forty-eight hours’ notice. The claimant was invited on 3 February to a hearing to be held on 7 February. The forty-eights hours only arose because the claimant chose to only take account of working days and not the weekend. In any event, the hearing was re-arranged to 10 February (after various emails had been exchanged). We noted that the ACAS code requires hearings to be arranged promptly, and the respondent’s own procedure said that a hearing should be arranged at the earliest practicable date following conclusion of the investigation. We did not find that arranging a disciplinary hearing for 7 February, on 3 February, was a detriment for the claimant, particularly in circumstances where it was subsequently re-arranged to a later date. In any event, the arrangements for the hearing were not because of the protected disclosure which the claimant had made to Mr Stephens in October, being a disclosure of which Miss D’Souza was unaware.

[203]We have already addressed alleged detriment 3(c)(iii) when addressing 3(a)(i). In his oral submissions, the claimant’s counsel confirmed that 3(c)(iv) was not being pursued as a detriment. Alleged detriment 3(c)(v) was Miss D’Souza failing to treat the process as one with career ending implications. In his submissions, the respondent’s counsel contended that this was one of the many allegations that were not explained in the claimant’s witness statement or any evidence. He said it was far too vague and undefined to form a detriment. We agreed. In any event, we also found that what was alleged was contrary to the evidence which we heard. Miss D’Souza did treat the allegations as serious. We therefore did not find that there was the detriment alleged. Alleged detriment 3(c)(vi) has already been addressed alongside detriment 3(a)(iii).

[204]Alleged detriment 3(d)(i) was that Mrs Coll was aggressive and accusatory towards the claimant on 3 March 2023. We considered carefully the part of the notes of that meeting relied upon (1012). We did not find that what was said showed Mrs Coll being aggressive and accusatory towards the claimant. She asked a question and the notes recorded that she challenged the claimant. We did not find that what was alleged occurred and we did not find that what was said, as recorded in the notes, amounted to a detriment.

[205]Alleged detriment 3(d)(ii) was that Mrs Coll lied about the formal minutes taken on 3 March 2023 by Reality HR Limited. We noted that the alleged detriment was that Mrs Coll lied. An external person attended to take the notes. We were provided with a document which showed the amendments made to the notes by Mrs Coll. Those amendments did not include any change to the specific passage relied upon for the allegation. We did not find that Mrs Coll lied as she did not amend that part of the notes herself. The detriment alleged was not found. We should highlight that we were not determining an allegation that the notes were slightly inaccurate, but one that Mrs Coll lied (which we have found was not the case). The detriment of dismissal (and related matters)

[206]Issue 5(a) asked us to decide whether dismissal of the claimant was capable of amounting to an alleged detriment against the first respondent under section 47B of the Employment Rights Act 1996? We have addressed this issue in the section on the law above. We were able to determine the claimant’s claim that the dismissal was a detriment under section 47B following the decision of the Court of Appeal in Wicked Vision.

[207]Issue 5(b)(i) asked us whether Miss D’Souza’s decision to dismiss the claimant was materially influenced by the claimant’s alleged protected disclosures? It was not in dispute or an issue, that being dismissed was a detriment for the claimant. We did not find that Miss D’Souza’s decision was materially influenced by either of the protected disclosures which we found were made and were protected disclosures. We accepted Miss D’Souza’s evidence about why she made the decision to dismiss. We found her to be an entirely genuine and credible witness when detailing the decision which she made (albeit we found her to procedurally have followed an unfair process). As we have already recorded, we found that the decision to dismiss was Miss D’Souza’s. It was not materially influenced by the disclosures.

[208]Issue 5(c) asked whether the claimant was able to rely on upon an argument that there was a “tainted decision” when she was dismissed (in the Jhuti sense). We have also addressed this in the section on the law above. We found that the respondent’s counsel’s submission about the dismissal was correct. We were not able to consider an argument that Miss D’Souza’s dismissal decision was a tainted decision in the ways set out in cases such as Jhuti and Baddeley as a result of (and for the reasons set out in) the Employment Appeal Tribunal’s decision in Henderson. As we have already summarised, the Employment Appeal Tribunal in Henderson found that Jhuti could not be applied to a decision to dismiss by a respondent to make that respondent liable for the detriment of dismissal, where the person making the decision to dismiss had been provided with tainted information involving the invention or manipulation of facts so as to deceive an innocent actor. That decision precluded us from considering a claim of dismissal as a detriment against the respondent.

[209]As we have explained, the decision in Henderson was specifically limited to the dismissal itself, it was therefore not clear that it also applied to the appeal. In the light of the legal uncertainty, we considered the factual issues which we would have been asked to determine, if we had been able to determine whether the appeal was a tainted decision in the Jhuti sense, on the assumption that we were able to consider that issue for the appeal (see our decision on issue 5(c)(iii) below).

[210]Issue 5(c)(i) asked was Miss D’Souza’s decision to dismiss the claimant materially influenced by Mr D’Ammassa, Mrs Coll and/or Ms Michael? This was not an issue which we needed to decide in the light of our decision on issue 5(c), however we did so, nonetheless. As we have already explained, we found that Miss D’Souza’s decision was her own. However, we noted the nomination committee meeting and what was recorded as being agreed by the committee at the end of the meeting. All three of the named people attended that meeting. Mr D’Ammassa and Ms Michael were not members of the committee and they attended as observers. We therefore found that they did not influence the decision. Mrs Coll was a member of the committee, and the notes of the meeting do not enable us to know which committee member said what. We have already decided that Miss D’Souza reached her own decision. We considered that the view of the committee might have influenced the outcome, but in fact it did not as all that was said reinforced Miss D’Souza’s own pre-conceived view. To that extent, Mrs Coll did not materially influence the decision to dismiss (but she could have done had the committee, and Mrs Coll in particular, instead endeavoured to dissuade Miss D’Souza from her pre-conceived view).

[211]We did not find that any of Mrs Coll, Ms Michael or Mr D’Ammassa materially influenced the decision to dismiss. Mrs Coll did not do so. Contrary to the claimant’s counsel’s submission that the evidence showed that Mr D’Ammassa was unquestionably levelling multifaceted influence over the disciplinary process, we found that Mr D’Ammassa did not influence the disciplinary process or Miss D’Souza’s decision at all. Ms Michael did undertake the role of progressing matters from them being raised as an issue, to having a disciplinary case to answer. She was the person who asked Miss D’Souza to take on her role in the disciplinary process. She progressed the disciplinary and therefore, to that extent, she materially influenced the dismissal. We did not find that Ms Michael provided tainted information or that she invented or manipulated the facts in the way in which a Jhuti situation would normally be found to apply. However, Ms Michael was a part of the process to the extent that she decided that it should progress to a disciplinary hearing. We therefore considered issue 5(c)(ii) for Ms Michael. We did not find that Ms Michael was materially influenced by the protected disclosures found. At the point at which she decided that there should be a disciplinary process, the second protected disclosure had not been made. We did not find that she was materially influenced by the October disclosure to Mr Stephens when she made her decision about the disciplinary issue.

[212]Issue 5(c)(iii) asked whether the decision of Mr Morris to not overturn the decision to dismiss on appeal was materially influenced by the claimant’s alleged protected disclosures? We have already addressed the appeal when determining detriment 3(a)(vi). As we said for that alleged detriment, we accepted Mr Morris’ evidence that he did not uphold the appeal for the reasons which he explained. We did not find that he had been materially influenced by either of the protected disclosures which had been made in the decision which he reached and explained in evidence. The respondent’s position was that 5(c)(iii) duplicated 3(a)(vi). We found that what was contended was slightly different. The question being asked in 5(c)(iii) was whether Mr Morris was materially influenced in his decision by Mrs Coll, Ms Michael or Mr D’Ammassa and whether his was a tainted decision in the way set out in Jhuti, Baddeley and/or Henderson? As a matter of fact, we did not find that he was influenced at all in his appeal decision by any of Mrs Coll, Ms Michael or Mr D’Ammassa. The decision which he reached on the appeal was Mr Morris’s own, based upon the disciplinary case and considering Miss D’Souza’s decision. It was not tainted or based upon tainted information or on facts which had been invented or manipulated. He made his decision based upon what had occurred and what he considered to be the correct decision on the appeal. As we have said, we accepted that Mr Morris did not uphold the appeal for the reasons which he gave in evidence. The protected disclosures found were not a material influence on the decision which he made. Other issues

[213]As we have already explained, the issue of jurisdiction was raised part way through the hearing and, in submissions, the respondent’s counsel contended that any claim arising from something which occurred prior to 14 November 2022 was out of time. As we have determined the claims based upon the substantive issues, it was not necessary for us to decide whether or not we would have had jurisdiction to have considered them all. Most of the alleged detriments were matters which we had jurisdiction to consider. As we have explained, some of the detriments were vague and it was difficult to identify when those detriments were alleged to have occurred. To the extent that they occurred prior to 14 November, we would have had to consider whether they were part of a series of similar acts with those which occurred in time. As we did not find for the claimant on any of the allegations, they could not have been found to have been in time as a result.

[214]Whilst it was agreed that we also needed to address arguments similar to those in Polkey and for contributory fault (at least for the detriment as a dismissal complaint), we did not need to do so in the light of the findings which we made.

Summary

[215]For the reasons explained above, we found that the claimant did make two protected disclosures in the ways and on the occasions alleged. We found that the claimant was subject to some of the detriments alleged (but not others). We did not find that either of the protected disclosures found had any material influence upon any of the detriments found. The claimant’s claim did not therefore succeed.