Ms A Kelly v M B Thoppil and Treetops Nursing Homes Ltd: 2408697/2023

EMPLOYMENT TRIBUNALS

Case No 2408697/2023

Between

Ms A KellyClaimant

M B Thoppil and Treetops Nursing Homes LtdRespondent

Before

Employment Judge KM Ross

Date 24 July 2025

JUDGMENT

[1]The claimant’s claim that she was automatically unfairly dismissed pursuant to Section 103A Employment Rights Act 1996 for making protected disclosures is not well founded and fails.

[2]The claimant’s claim for disability discrimination (failure to make a reasonable adjustment) pursuant to Sections 20 – 21 Equality Act 2010 is not well founded and fails.

[3]The claimant’s claim for harassment related to disability pursuant to Section 26 Equality Act 2010 is not well founded and fails.

[4]The claimant’s claim for harassment related to sex pursuant to Section 26 Equality Act 2010 is not well founded and fails.

[5]The claimant’s claim for harassment related to race pursuant to Section 26 Equality Act 2010 is not well founded and fails.

[6]The claimant’s claim for direct sex discrimination pursuant to Section 13 Equality Act 2010 is not well founded and fails.

[7]The claimant’s claim for direct race discrimination pursuant to Section 13 Equality Act 2010 is not well founded and fails.

[8]The claimant’s claim for indirect race discrimination pursuant to Section 19 Equality Act 2010 is not well founded and fails.

[9]The claimant’s claim for unauthorised deduction from wages in relation to payment in respect of TOIL is not well founded and fails.

REASONS

[1]The claimant was employed by the respondent as a Regional Manager from 6 February 2023 until she was dismissed in her probationary period on 4 April 2023. She therefore worked for the respondent for approximately two months. The second respondent is a business which at the relevant time ran three care homes: - Wordsworth House Care Home, Treetops Nursing Home and Hyde Nursing Home. The first respondent is the Managing Director of the second respondent.

[2]The claimant’s case was primarily that she was dismissed for making public interest disclosures “Whistleblowing”. The respondents’ position was that the claimant was dismissed for poor performance and failed her probationary period. The claimant also brought other claims which were harassment related to disability, sex and race, direct sex and race discrimination, failure to make reasonable adjustments, indirect race discrimination and unlawful deduction from wages.

[3]The claimant had also brought claims for her notice pay and holiday pay, but these claims were resolved and paid during the hearing. A separate Judgment has been issued for those claims.

[4]The claimant was not employed for long enough to bring a claim for “ordinary” unfair dismissal-s95 and 98 Employment Rights Act so that claim was struck out. Procedural History

[5]The claimant is a litigant in person. There was difficulty in understanding the claims the claimant wished to bring. There were four case management hearings before this final hearing. They were before Judge Shotter on 9 January 2024 (pages 51 to 71), before Judge Tobin on 26 April 2024 (page 46 to 50), before Judge Childe on 15 July 2024 (pages 34 to 45) and finally before Judge Eeley on 2 January 2025 at pages 11 to 33.

[6]At the final case management hearing Judge Eeley asked the claimant to give specific information including dates about her claims as set out in the annex to Judge Eely’s case management order. See paragraph 13 on page 13. Unfortunately, the claimant failed to do that. At the outset of this hearing, the Tribunal established that the claimant had provided further information at page 145 to 147, but it did not clarify the existing allegations identified in the list of issues. Instead, the claimant raised three pages of new allegations.

[7]We enquired of the claimant how she wanted to proceed. We enquired whether she wished to apply to amend her claim although the legal basis of those claims at page 145 to 147 was wholly unclear. The claimant said she did not wish to amend her claims. In these circumstances we proceeded with the agreed list of issues as identified before Judge Eeley. During the Hearing

[8]The claimant has a hearing impairment. In previous hearings, when reasonable adjustments for the Tribunal hearing were discussed, she had not identified any specific adjustments other than everyone should speak clearly and transparently. See page 35. On behalf of the Tribunal, I asked the claimant whether she wore hearing aids. She said that she did. I asked the claimant whether she would prefer to move to a room where there was a hearing loop. The claimant said she did not wish to cause any inconvenience or disruption or delay. I explained that there would be a natural break during the hearing whilst the Tribunal was reading all the statements and documents and so there was no inconvenience to the Tribunal or parties to move hearing rooms at that time. The claimant said it would assist her to use a hearing loop. We therefore arranged for the hearing to transfer to a room on the ground floor which had a hearing loop on the morning of the first day and we used that room for the remainder of the hearing.

[9]The claimant also identified as suffering from anxiety, depression and a stress related condition. I explained to the claimant on behalf of the Tribunal that she could have regular breaks throughout the hearing, and we ensured that this occurred.

[10]Unfortunately, the claimant became unwell with a very serious nose blood during the morning of day three, Wednesday 16 July. We sought assistance from the Tribunal staff who contacted the emergency services, and the claimant was advised to attend hospital. The hearing was postponed for the remainder of day three.

[11]We asked the claimant to keep the Tribunal informed. The claimant attended on day four, Thursday 17 July, saying she felt well enough to continue. The Tribunal asked whether she wished to postpone and relist the hearing on another day when she might feel better. The claimant said she felt well enough to proceed and so we did.

[12]We heard evidence from the claimant. The claimant provided witness statements from Mr Oliver, a family member whose mother attended the care home, Ms Purt a Hairdresser who provided hairdressing services to the care home, Ms Saji, Mr Butcher, a family member who had a family member resident at the care home, Mr Pozdirca a Registered Nurse and Tanveer Akhtar.

[13]The claimant said from the outset of the hearing that Mr Pozdirca would not attend. Mr Oliver attended in person. The claimant made an application for Ms Saji to attend remotely, given she was visiting a sick relative in India. The Tribunal checked the appropriate guidance and noted India has not given permission for evidence to be given via video link from their jurisdiction and accordingly that application was refused. The claimant’s application for Mr Oliver to give evidence via video link because he was moving house was granted. He attended remotely. The claimant also made an application for Ms Purt to attend remotely by video link, due to illness. The application was granted. Unfortunately, Ms Purt did not attend at the time agreed. She sent an email stating she could only attend for a stated 45 minute period which was in the midst of Mr Thoppil’s evidence. Although the Tribunal originally gave permission for Ms Purt to attend remotely, when she was not available at the agreed time and could only attend in the middle of Mr Thoppil’s evidence, a further application that she attend at that time was not granted on the basis that it was disruptive to the flow of the evidence and that her witness testimony was of limited relevance. There was no explanation why Ms Purt was only available for those 45 minutes. The claimant informed the Tribunal that Tanzir Akhtar would not be attending.

[14]The Tribunal attached limited weight to the witness statements of those witnesses who did not attend.

[15]For the respondent we heard from the first respondent Mr Thoppil. We also heard in person from Mrs Holmes, an employee of the first respondent and from Ms Heaton another employee of the first respondent, who attended remotely by video link by permission of the Tribunal.

[16]The Tribunal had a joint file of documents of over 450 pages. During the course of the hearing both parties made applications to adduce further documents. The Tribunal permitted rotas in relation to the care home to be added and some screenshots the claimants wished to rely upon in relation to a CQC report of February 2024.

Facts

[17]The Tribunal found the following facts.

[18]The claimant commenced work for the respondent as Area Manager (sometimes described as the Regional Manager) on 6 February 2023 for the three care homes run by the respondent. There was no dispute that at the time she was appointed there was no Home Manager for Hyde Nursing Home, so the claimant was effectively day to day manager of that home in addition to her role as the Area Manager. There was no dispute that because of this the claimant was based predominantly at Hyde Nursing Home.

[19]We find the claimant signed a contract at page 280 of the bundle and her job description is at page 272 of the bundle. The claimant’s salary was £50,000 a year.

[20]We find the claimant’s role was particularly challenging because a Manager and Deputy Manager for Hyde Nursing Home were not in post although they were due to start not long after the claimant’s employment ended. We find and it is not disputed that there is a shortage of carers in the care industry and that the respondent was heavily reliant on agency staff. We rely on the evidence of Mr Thoppil, which was not disputed by the claimant , that as an Area Manager and acting Manager of Hyde Nursing Home, the claimant had a wide discretion as to how she managed her hours. Her contract of employment states at page 281 “your normal hours of work are 40 hours each week to be worked flexibly in accordance with the weekly roster and will be worked on any five days.” We rely on Mr Thoppil’s evidence that the usual working hours of a manager were 9 to 5 Monday to Friday, but the nature of the role meant that a manager could come in early and leave early or come in late and finish late, it was a matter for the manager to organise their time. It was not disputed that during the time she worked for the respondent the claimant’s mother was ill in hospital and it was not disputed that there was no problem with the claimant taking time off to visit her mother.

[21]We find on the weekend of 4th to 5th of March 2023 the Head Chef and Chef were both off sick. The claimant said she had to work in the kitchen on that weekend due to the lack of staff. Mr Thoppil said in those circumstances he would expect domestic staff who had the appropriate food hygiene qualifications to go in and work in the kitchen because they were trained to do so. He did not see the need for the claimant to cook.

[22]On Monday 6 March it was agreed that there was an altercation between the Head Chef and Chef with the claimant in her office. The claimant recorded a complaint about the two staff members concerned, see page 295 to 296. Action was taken on the claimant’s concern and a disciplinary investigation was carried out by the respondent’s Toni Heaton. It is not disputed the matter proceeded to a disciplinary hearing where Mr Thoppil issued both of the members of staff with a verbal warning. CQC Complaints

[23]We find the respondent received complaints from the Care Quality Commission. The first complaint, complaint one was received on 6 March 2023 and the complaint number ends in the numerals 1231. The claimant received the complaint, informed Mr Thoppil she would deal with it page 322 and she responded as set out at page 324 to 326, disputing the allegations which had been raised and giving detailed facts in reply.

[24]The second complaint from CQC was dated 23 March 2023, see page 353, it ends in the numerals 6691. It was sent to the claimant at the Hyde Manager email address. The claimant sent it on to herself on 24 March 2023 at page 353. The response to the second complaint, which was sent on 30 March, is at page 362 to 365. It was drafted by the claimant. Once again it denied the allegations made in the complaint and gave factual responses.

[25]The third complaint was received by the respondent on 24 March 2023 page 370.It ends in the numerals 6951. It was sent to Mr Thoppil.

[26]On Sunday 26 March Mr Thoppil asked the claimant to send her response to the two complaints “received this week by 12 noon tomorrow, page 443”. There is some ambiguity about which complaints he was referring to.It may be he was referring to complaint 2 and 3 from CQC, or complaint 2 from CQC and the complaint from the social worker received on 20 March.( See below).

[27]At this point the claimant says she had not received the CQC complaint of 24 March which had been sent to Mr Thoppil. In any event there is no dispute that on 2 April 2023 at 10pm Mr Thoppil sent the claimant that third complaint ending 6951 see page 370. He also sent her another complaint, complaint number 4, ending in numerals 0771. It was received by Mr Thoppil on 31 March 2023 at page 366 and also forwarded to the claimant on 2 April at 10pm see page 366.

[28]In addition to the complaints from CQC the claimant had received a complaint from a Social Worker on 20 March 2023 page 441. The claimant was asked by Mr Thoppil to respond as soon as possible as the information was needed for the multi-agency conference “MAC” meeting at 2pm. Page 441. We heard that the multi-agency conferences were meetings between NHS, the Care Home Managers and Social Work staff about relevant issues.

[29]On 2 April 2023 Mr Thoppil invited the claimant to a probationary review meeting to take place on 4 April, see page 372.

[30]On 3 April 2023 Mr Thoppil emailed the claimant at page 374 stating there were three complaints to answer to the CQC. We find these were complaints we have described as 2,3 and 4. In addition, he stated there was also one from the Local Authority and one from the Social Worker regarding resident AI received on 20 March. He asked her to work at home to complete those complaints. He said “if you need any further information, please feel free to email or ring me via mobile” at p374.

[31]It is not disputed that the claimant did not respond to complaints three or complaint four and did not respond to the Social Worker or Local Authority complaint. Neither did she contact Mr Thoppil to say she could not complete the replies to the complaints whist working from home. (In Tribunal in cross examination the claimant said she needed information held at the Home to complete a reply to the complaints).

[32]The claimant attended the probationary review meeting on 4 April 2023, which took place remotely over Microsoft Teams. The respondent produced minutes of the meeting at page 377 to 378 and the claimant produced a transcript dating from a covert audio recording at page 379 to 400.

[33]Following the meeting the claimant was dismissed. The dismissal letter is at page 401 to 402. The reason for dismissal was (i) the claimant’s failure to respond to CQC, failure to complete the proper action following a family member’s complaint about a member of agency staff, failure to deal with the complaint from the Social Worker regarding resident AI on 20 March 2023 and failure to notify CQC in accordance with the usual protocol, a resident having died on 26 March 2023.

The Law

[34]The relevant law in relation to detriments and dismissal for making protected disclosures is found at sections 43B and103A Employment Rights Act 1996. We had regard to the well-known cases of Cavendish Munro Professional Risks Management Limited -v- Geduld

2010 ICR 325

EAT and Kilraine -v- Wandsworth London Borough Council

2018 ICR 1850

CA, Royal Mail Group Ltd v Jhuti

2020 ICR 731

, SC and Nicol v World Travel and Tourism Council and ors

2024 ICR 893

, EAT.

[35]The relevant law for the claims of discrimination is found at s.13 (direct discrimination), and s39(2)(d) (not subjecting an employee to detriment) Equality Act 2010, s19 Equality Act (indirect discrimination) , s26 Equality Act ( harassment), s20-21 failure to make reasonable adjustments.

[36]In the direct discrimination case, we reminded ourselves of Shamoon v Chief Constable of Royal Ulster Constabulary 2003 337 HL. In the harassment claims we reminded ourselves of the guidance in Richmond Pharmacology v Dhaliwal

2009 ICR 724

. In the indirect race discrimination claim we remind ourselves that the purpose of the law of indirect discrimination in the words of Baroness Hale, ‘ is an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic’ — Chief Constable of West Yorkshire Police and anor v Homer

2012 ICR 704

, SC

[37]In the failure to make reasonable adjustments claim we had regard to Environment Agency v Rowan 2002 ICR EAT and HM Prison Service v Johnson

2007 IRLR 951

[38]We had regard to the burden of proof provisions at s136 Equality Act 2010.The Tribunal reminded itself the established authorities demonstrate there is a 2 stage process in a direct discrimination case. These authorities include Wong v Igen Ltd

2005 3 All ER 812

and Madarassy v Nomura International plc

2007 IRLR 246

and Efobi v Royal Mail Group Ltd

2019 2 All ER 917

.The Tribunal reminded itself that a difference in treatment and a difference in protected characteristic are not sufficient to shift the burden of proof. There must be “something more”. See Mummery LJ in Madarrassy v Nomura International plc. We also reminded ourselves that it is necessary to explore the alleged discriminator’s mental processes. We took into account Lord Nicholl’s guidance in that bias may be unconscious. See Nagarajan v London Regional Transport

1999 ICR 877

[39]The relevant law for the unlawful deductions claim is s13 Employment Rights Act 1996.

[40]We also considered the other cases relied upon by the respondent in Ms Wood’s helpful submissions doucument.

Issues

[41]The issues are set out at page 24 to 33 of the bundle. Automatic unfair dismissal for making Protected Disclosures.

[42]We turn to consider the claimant’s first complaint which is she was automatically unfairly dismissed pursuant to Section 103A Employment Rights Act 1996 for making protected disclosures.

[43]The claimant is a litigant in person. She struggled to understand although we tried to explain to her on a number of occasions as had previous Judges, that to succeed in a whistleblowing claim for automatic unfair dismissal the Tribunal must be satisfied that the specific disclosures relied upon by the claimant (there were three) set out at page 24 of the list of issues, were protected and qualifying within the meaning of the law. If they are, the Tribunal then has to be satisfied that the reason for the dismissal was one or more of the protected disclosures.

[44]In this case the Tribunal has found that none of the disclosures were protected and qualifying within the meaning of the legislation.

[45]We have found that the respondent had no knowledge of disclosures one and two. We have also found there was no causal connection between any disclosures relied upon by the claimant and her dismissal and this claim therefore fails.

[46]We now turn to deal with the legal issues in detail. Disclosure 1.

[47]We turn to the first disclosure PD1 “On 30 March 2023 the claimant contacted the Tameside Council Quality Monitoring Team by telephone and said the respondent had unsafe staffing levels and had removed 1 to 1 care for residents”.

[48]The Tribunal is not satisfied that the claimant contacted Tameside Council Quality Monitoring Team on that date. The claimant did not provide any information about this disclosure in her witness statement, it is not referred to in her claim form and there is no documentary evidence in relation to it.

[49]However, even if we are wrong about that and the claimant did complain to the council on the day she says, the Tribunal reminded itself of the principle in Cavendish Munroe Professional Risks Management Limited -v- Geduld

2010 ICR 325

EAT. There is a distinction between information and the making of an allegation. The ordinary meaning of giving information is conveying facts. There are no facts in this alleged protected disclosure only general allegations. There is no information as to what the staffing levels were, what they should be, who had removed one to one care from residents, from whom and when. Therefore, in relation to the first protected disclosure we are not satisfied that the claimant disclosed information. It is therefore not a disclosure qualifying for protection. Disclosure 2

[50]We turn to the second protected disclosure PD2: “on 3 April 2023 the claimant contacted Lisa Potter at the Care Quality Commission and said that the respondent was removing staff and leaving patients vulnerable and allowing staff who were in a relationship to work together”. Once again, the Tribunal is not satisfied that this was actually said. There was no clear information as to how the claimant had contacted Lisa Potter and there was no documentary evidence to support her assertion that she had. There was nothing in the claimant’s witness statement about this disclosure.

[51]Even if we are wrong about this and the claimant did contact Lisa Potter on the day she says and spoke in the way she described, once again in accordance with the principle of Cavendish Munroe Professional Risks Management Limited -v- Geduld

2010 ICR 325

EAT the claimant has not disclosed information. She has simply made generalised allegations. She has not stated which staff were being removed or from where, how patients were being left vulnerable and who those patients were and who were the staff that were in a relationship which were being permitted to work together. Accordingly, we find that she did not disclose information and it is therefore not a protected disclosure. Disclosure 3

[52]We turn now to the third disclosure of information PD3: “on 3 March 2023 the claimant spoke to a representative at Citation and said Mathew Biju was requiring her to write out the disciplinary outcome for Michelle and another kitchen staff member who she alleged had made discriminatory comments towards her”.

[53]We find that PD3 was said in part. We find that the claimant did speak to a representative at Citation, a third party HR organisation providing advice to the respondent, in March 2023 (although not 3 March) and said Mathew Biju was requiring her to write out the disciplinary outcome for Michelle and another kitchen staff member. We do not find Michelle and another kitchen staff had made discriminatory comments. (the reasons for that are set out later in our judgment).

[54]Mr Thoppil agrees that when the claimant complained to him about how Michelle and another kitchen staff had spoken to her at a meeting in her office on 6 March 2023, he said that the matter should be taken further. We find following an investigation by Toni Heaton, Mr Thoppil chaired a disciplinary hearing where he issued formal warnings to the two kitchen staff concerned.

[55]Mr Thoppil agreed in evidence that due to pressures of time and work , after the disciplinary meeting, he asked the claimant to draft the disciplinary outcome letter issuing the formal warning to the 2 cooks. After the claimant spoke to the HR advice company retained by the second respondent, Citation, he realised that it was inappropriate for the claimant to draft the letter, given that the complaint was about how the kitchen staff had treated the claimant and given that he had conducted the disciplinary meeting. He accepted it was for him to write the outcome letter and we find he apologised to the claimant and said he would issue the letter of warning to the kitchen, which the parties agreed he did. (Although there was no copy in the Bundle before the Tribunal).

[56]Having found that this disclosure was made (apart from the part referring to discriminatory comments) we are satisfied that it disclosed information.

[57]We then turn to the next question did the claimant believe this disclosure of information was made in the public interest. We must also ask ourselves if that belief was reasonable. We are not satisfied that contacting HR as the claimant did in her role as area manager and informing them that Mr Thoppil was asking her to write out the disciplinary outcome for a hearing, he had chaired is information made in the public interest or that the claimant reasonably believed that. It was a matter which related to the claimant.

[58]However, in case we are wrong about that we have gone on to consider the next issue, did the claimant believe it tended to show that a person had failed, was failing or was likely to fail to comply with any legal obligation. We are not satisfied the claimant thought any legal obligation was being broken. She found it was inappropriate, as it clearly was, but that is not the same as failing to comply with any legal obligation. The claimant did not identify any legal obligation she thought was being broken in relation to PD3.

[59]For these reasons we are not satisfied that PD3 was protected within s 43B Employment Rights Act 1996.

[60]The claimant’s claim for automatic unfair dismissal for whistleblowing fails at this point because none of the disclosures are protected.

[61]Strictly speaking we do not have to answer the next issue because we have already found all three disclosures are not protected.

[62]However, in case we are wrong we have gone on to consider the next issue which is set out in Section 43G Employment Rights Act 1996 and identified at page 24 and 25 of the list of issues. The claimant did not make any of the disclosures to her employer. She made them all to 3rd parties: the Local Authority, the Care Quality Commission and a 3rd party HR firm. We must consider whether the conditions in 43G (2) Employment Rights Act 1996 are met. We must ask at the time the claimant made the disclosures, did she reasonably believe that she would be subject to a detriment by her employer if she made the disclosure to his employer, in accordance with 43F.

[63]Although in the list of issues it says the claimant believes she would be subjected to a detriment if she made the disclosure to Mr Thoppil direct because it is a small family business, and she was complaining about the behaviour of the first respondent who is the owner of the second respondent she did not adduce any clear evidence to say this. She did not suggest that if she had said to Mr Thoppil she considered it was inappropriate for her to complete the disciplinary outcome letter because she had not chaired the disciplinary hearing and that the complaint had originally come from her that he would have subjected her to any detriment.

[64]At the time the claimant says she spoke to the HR representative at Citation, there was nothing to suggest that the relationship between Mr Thoppil and the claimant was anything other than cordial. We find that conversation must have occurred in March, before the claimant was asked to attend the probationary meeting in April. The precise date of 3 March 2023 recorded in PD3 is very likely to be inaccurate because the altercation which led to the disciplinary matter took place on 6 March 2023 and the subsequent disciplinary investigation report completed by Toni Heaton is dated 16/3/23, see page 347. The disciplinary warning letters to the relevant members of staff which are not in the bundle must have been drafted after 16 March 2023.

[65]However, in case we are wrong about all of the above and each disclosure was protected and qualifying we turn to the issue of causation.

[66]The first point to raise is that with regard to the knowledge of a protected disclosure, in Nicol -v- World Travel and Tourism Council

2024 EAT 420

the EAT reminds us that for an employer to be liable for automatically unfair dismissal under Section 103A of the Employment Rights Act 1996 they ought to know at least something about the substance of the disclosure that has been made.

[67]In the case of Jhuti an employer may be fixed with knowledge if there is a hidden manipulator. There was no one else involved in the claimant’s dismissal other than Mr Thoppil who was the Managing Director of the organisation. This is therefore not a case to which Jhuti is relevant.

[68]We remind ourselves of the guidance of the Court of Appeal in Kuzel -v- Roche Products Limited

2008 ICR 799

. We find there is no connection between any alleged disclosures by the claimant and her dismissal. The only disclosure of which the respondent had any knowledge was disclosure 3.

[69]There is no evidence to connect disclosure 3 to the claimant’s dismissal, other than it was close in time to the alleged disclosures but this was a case where the claimant was only employed for 2 months.

[70]By contrast, when considering the reasons relied upon by the respondent for dismissing the claimant, there is clear evidence that the claimant had not provided responses to the CQC as she was required to do. The claimant did not dispute that she had not done the work at home as required by Mr Thoppil on Monday 3 April. She told the Tribunal she needed to come into work to complete the complaint responses, but she did not respond to Mr Thoppil’s email asking her to ring him or email him if she needed any further help or advice and she did not suggest to him at the time that that was the reason why she could not answer complaints 3 and 4.

[71]It is also clear that the claimant had not responded to the concern of the Social Worker about resident AI as she had been asked to do.

[72]The minutes of the probationary meeting made it clear that there were also concerns. The transcript and minutes record that the respondent considered the claimant had not followed appropriate protocols promptly in relation to the resident who had died and the CQC not being notified. They record another concern that the claimant had not completed the correct paperwork in relation to a family member being concerned about inappropriate behaviour of an agency staff member, in a situation where the family member had chosen not to progress the complaint.

[73]Many of the claimant’s questions in cross examination were directed to the issue of the amount of work she had to do and the reasons why she had been unable to carry out the responses to the complaints. That is not directly relevant to the issues the Tribunal has to decide. The claimant’s case is that she was dismissed for making protected disclosures. The claimant does not have a complaint of “ordinary” unfair dismissal.

[74]There is complete inconsistency between the claimant’s replies to CQC(p324- 326, p362-5 ) where she expressly says there no issues about staffing levels and her alleged Protected Disclosures 1 and 2 where she says she complained to the Local Authority and CQC about unsafe staffing levels. The claimant tried to account for this inconsistency in cross examination by saying that she did not believe the content of the replies she wrote to CQC when answering the complaints and felt under pressure to write those accounts by Mr Thoppil. If that is true, from a professional point of view, that raises a serious concern about the claimant’s integrity because as an area manager the claimant was providing information to the Care Quality Commission, which she knew to be false.

[75]For the avoidance of doubt, the claimant has never suggested she was the person who made any of the 4 complaints we identified the Respondent received from CQC.

[76]The Tribunal also finds it implausible that as a newly appointed manager Area Manager responsible for 3 care homes, and the second in the chain of command, as only the managing director was senior to her in a small family business, that the claimant would complain at such an early stage of her employment to an external body such as CQC or the local authority as alleged in PD 1 and 2 when part of her managerial role was responsibility for these matters.

[77]The Tribunal is not satisfied that PD 1 and 2 were made. The Tribunal has found PD 3 was made in part but is not satisfied the claimant was dismissed for PD3. The Tribunal finds it implausible that Mr Thoppil dismissed the claimant because she raised a concern about being asked to draft a letter issuing a verbal warning when Mr Thoppil accepted that was a mistake and apologised.

[78]The evidence suggests the real reason she was dismissed was because of the documented failings of the claimant during her probationary period, in particular her failure to respond promptly to complaints.

[79]The Tribunal must decide: was the real reason the claimant dismissed because she made the three protected disclosures she relied upon. We find that it was absolutely not the case for all the reasons given above. Accordingly, the claim that the claimant was automatically unfairly dismissed for making a protected disclosure fails.

[80]The Tribunal explained to the claimant at the start of the hearing that the Tribunal has no power to hear a detriment claim for a claimant who is an employee in relation to dismissal. Disability

[81]By the time of the final hearing the respondent had conceded that the claimant was a disabled person by reason of a hearing impairment. The respondent had not conceded whether the claimant had a physical or mental impairment of depression/anxiety/stress related condition.

[82]The Tribunal turns to consider whether the claimant was a disabled person at the relevant time within the meaning of Section 6 Equality Act 2010 by reason of depression/anxiety/stress related condition. p26-27.

[83]We reminded ourselves that the relevant time was the period of time she was employed by the respondent, namely 6 February 2023 to 4 April 2023. We turned to the claimant’s disability statement. The disability impact statement at page 258 to 259 states that the claimant suffered a psychological condition as a result of the respondent’s actions. It does not suggest anywhere that she had a psychological condition when she worked for the respondent. She specifically states “as a direct consequence of these circumstances I developed severe depression/anxiety and overwhelming stress”. The claimant did not disclose any medical evidence to suggest that she was suffering from a psychological condition at the time she worked for the respondent. In cross examination the claimant said she had a long standing diagnosis of PTSD connected to previous domestic violence. Whilst the Tribunal is of course sympathetic to that situation, the evidence before the Tribunal did not show that the claimant had a psychological condition of depression/anxiety or stress related condition which had a substantial adverse effect on her ability to carry out day to day activities when she worked for the respondent. We therefore do not find the claimant was disabled by a psychological impairment of depression/anxiety/stress related condition within the meaning of s6 Equality Act 2010 when she worked for the respondent.

[84]We now turn to the issue of knowledge of disability. We turn to consider the claimant’s hearing impairment. There is no evidence to suggest that the claimant ever informed Mr Thoppil or anyone at the respondent that her hearing was impaired. There is no documentary evidence in the bundle to suggest this and there is nothing in her witness statement. The only evidence the claimant could rely upon was an entry in the transcript where Mr Thoppil on a Teams meeting at the probationary hearing asked the claimant if she could hear him. The Tribunal relies on its workplace knowledge and finds it is standard when any meeting or hearing is conducted remotely by video link that the person conducting the hearing asks the other party whether or not they can hear them. We rely on Mr Thoppil’s evidence to find that is why he asked the question and find this is not at all suggestive that he knew the claimant had a hearing problem.

[85]For the sake of clarification, we note that medical evidence shows that the claimant had a problem with hearing in her left ear during the time she worked for the respondent. The problems she has unfortunately developed in relation to her right ear were diagnosed later. The claimant told us that she communicated a great deal on her mobile phone when she worked for the respondent, and it was specially adapted for her hearing problem. We find Mr Thoppil met mostly with the claimant on the phone or remotely by videolink and there was nothing to alert him to the claimant’s hearing problem. We believe Mr Thoppil when he said he had no idea until the claim was presented that the claimant suffered from any kind of hearing impairment. Therefore we find he did not know the claimant was disabled by reason of her hearing impairment in her left ear. Failure to make Reasonable Adjustments

[86]We turn now to the claimant’s claim for failure to make reasonable adjustments pursuant to Section 20 to 21 Equality Act 2010. P30-31 The first question is did the respondent know or could it be reasonably expected to have known that the claimant had the disability and from what date. The respondent could not have been expected to know that the claimant had hearing problems. There was nothing to suggest that she was struggling to hear. She did not expressly raise with the respondent we find that she had problems with her hearing.

[87]We turn to the claimant’s psychological impairment of anxiety, depression and a stress related condition. We find there is no evidence in the claimant’s witness statement or anywhere else in the bundle to suggest she raised with the respondent that she was disabled or even suffered from these conditions. She was never absent on sick leave. We find there were no facts from which the respondent might be expected to conclude that the claimant had these conditions.

[88]Accordingly, the claim for failure to make reasonable adjustments fails at that point because the duty on the employer to make the adjustments was not triggered because they did not know she had these impairments. There is no need for us to consider the other issues. Harassment related to disability Section 26 Equality Act

[89]Allegation One. We turn to deal with the first question, did the second respondent do the following alleged things: “Michelle and one other staff member said to the claimant in March 2023 “what the fuck because you were deaf anyway”.

[90]The Tribunal finds this was not said.

[91]We find the most accurate account of the incident which occurred on 6 March 2023 is likely to be the very detailed account written by the claimant at the time. A statement made by the claimant at pages 295 and 296 states “Michelle said to me what the fuck did you do the potatoes at the weekend”. She also says, “as they were leaving the office they were speaking in raised voices over their shoulder stating they will be phoning Mathew and they will get me the fuck walked out like all the other managers, laughing”. The claimant does not say anywhere in that detailed two-page statement that the remark was “what the fuck because you were deaf anyway” and does not suggest there was any reference to her hearing.

[92]We find the claimant’s memory is likely to have been more accurate close to the time of the incident when she was clearly upset about how the 2 members of staff behaved and what they said. She was sufficiently concerned to alert Mr Thoppil to it who arranged for Ms Heaton to conduct a disciplinary investigation into the matter and suspend the two cooks responsible.

[93]There is no reference to the words relating to the claimant’s disability in her claim form, nor in her witness statement. The claimant did not raise the matter at her probationary meeting neither did she raise it after her opportunity to appeal. The claimant agreed in cross examination that a remark about her deafness is an offensive remark. We find if it was said, the claimant would have recorded it accurately at the time.

[94]In these circumstances the Tribunal finds the claimant is mistaken in her recollection produced in response to a request for clarification about the claim for discrimination from Judge Shotter, which appears to have been sent to the Tribunal in or around May 2024 over a year after the incident. Accordingly, the Tribunal finds the words were not spoken as now suggested in this allegation and therefore it is factually correct and fails at this point. There is no need for us to consider any further issues in relation to this allegation. Harassment related to sex Equality Act 2010 Section 26

[95]We turn to the issues did the respondent do the following alleged things. Allegation One: “The first respondent said at the end of February 2023 that the claimant was a little girl that needed her mummy when the claimant’s mother was ill and fighting for her life in a Northeast hospital. The first respondent “do you want the job or not? If you don’t, you can leave because I know how little girls need their mummies”.

[96]The first question is whether or not this was said. Although it is in the list of issues it is not mentioned in the claimant’s original particulars of claim attached to her claim form and it is not in her witness statement. There is no document in the bundle which refers to it, no grievance was lodged about it and there is no reference to it in the probationary meeting or in the claimant’s letter of appeal. Mr Thoppil denies that he said this. What is not disputed is that the claimant’s mother was ill and unwell in hospital and that Mr Thoppil gave her time off to go and visit her mother. Although the claimant was doing her best when giving evidence, the Tribunal considers that her memory is unreliable. The Tribunal prefers the recollection of Mr Thoppil that he did not say these words. We find Mr Thoppil was a witness who made some concessions. When the shift rotas were produced, he conceded that as he had not prepared them, they may be inaccurate and that entries which recorded the claimant absent on annual leave might have been based on an assumption by the administrative staff member who could have recorded the claimant as on leave she was not in work on those days.

[97]We find this allegation one is not consistent with a person who permitted the claimant time off to visit her mother in hospital, as the claimant agreed Mr Thoppil did. For the reasons stated we prefer the recollection of Mr Thoppil and find the remarks were not made. Accordingly, the allegation fails.

[98]Allegation 2. On a daily basis from February 2023 until May 2023 the first respondent referred to the claimant and other female members of staff as girls. Male employees were referred to as men not boys.

[99]There is a dispute once again as to whether or not this was said.

[100]Firstly, the Tribunal finds there is an inaccuracy in this allegation because it refers to May 2023 and it is undisputed the claimant’s employment ended on 6 April 2023. The claimant was asked by Judge Eeley in no uncertain terms to give specific dates, places and witnesses for the allegations in this list of issues. (Paragraphs 12 and 13, of the case management order p13) . She did not do so and has never done so. There is nothing in the bundle to suggest that Mr Thoppil referred to the claimant and other female members of staff as girls. The only place in the bundle where he is referring to people by their gender is in the claimant’s transcript of the probationary meeting where he refers to members of staff as female, page 387 and to a female family member as “lady” at page 390. The rotas suggest that the staff at the care home were predominantly female. There were very few male employees. It is difficult to identify any circumstances where Mr Thoppil would have needed to distinguish between male and female members of staff.

[101]The respondent’s witnesses denied Mr Thoppil referred to the claimant and female staff as girls.

[102]The Tribunal prefers Mr Thoppil’s recollection to the claimant’s and is not satisfied this remark was made and accordingly the Tribunal does not need to decide any other issues in relation to this remark.

[103]Allegation Three: “the first respondent referred to women’s conversations in the workplace as chitty chat whereas male employees had conversations”.

[104]Once again there was a dispute between the parties as to whether this was said. Mr Thoppil denied ever saying it. Although Judge Eeely required the claimant to give specific particulars about this and other allegations in the List of Issues, she did not do so.There were no dates, places or witnesses or context identified in relation to this allegation. The respondents’ witnesses who attended the Tribunal confirmed they had never heard Mr Thoppil use the expression “chitty chat”. The Tribunal prefers the evidence of Mr Thoppil and is not satisfied those remarks were made.

[105]Having found that none of these remarks were made it is not necessary for the Tribunal to go on to consider the next issues and the claims for harassment related to sex fail. Direct Sex Discrimination Section 13 Equality Act 2010 Allegations 1,2,3.

[106]The claimant relies on the same three allegations she relied on in relation to the claim for harassment related to sex. See page 28, paragraphs 32.1,2.2 and 32.3. The Tribunal relies on its findings that those remarks were not made and accordingly it is not necessary for the Tribunal to go on to consider the other issues. Allegation 4

[107]The Tribunal turns to the fourth allegation of direct sex discrimination “the claimant was expected to work beyond her contracted hours to cover work due to lack of appropriate staff and resources. She was not allowed to leave work on time to go home and care for her child.” The claimant alleges that a man would have been allowed to leave on time. P29, paragraph 32.4

[108]The claimant’s contract of employment states she has some responsibilities which “may be outside of normal working hours”, see page 282. It also explains that “you may be required to work a reasonable amount of overtime hours as directed by the home”. Her contract also states : “Your normal hours of work are 40 hours each week to be worked flexibly in accordance with the weekly roster and will be worked on any five days. You will be entitled to an unpaid break of 60 minutes each day. These normal hours of work may be varied to meet the operational requirements of the business”. You are required as part of your normal duties to be on call in order to provide out of hours cover to deal with emergencies”. If you are called in you will be given time off in lieu of any hours worked”. Page 281.

[109]The Tribunal also relies on the evidence of Mr Thoppil that as a senior manager, the claimant was able to work flexibly and although her normal hours were 9 to 5 Monday to Friday, it was a matter for her if she chose to sometimes come in early and leave early or come in late and work late. In that sense, her position was different to other junior members of staff such as care assistants or kitchen staff who worked fixed hours and could not vary their working hours without permission.

[110]There was no dispute that it was a very busy and challenging time when the claimant worked for the respondent. There was a lot of change and restructuring going on and there was no manager or deputy manager in post for Hyde Nursing Home. We find the claimant was expected to work within the terms of her contract. We find it is factually incorrect to state she was not allowed to leave work on time to go home and care for her child. The claimant did not identify any specific occasion or any occasion at all when Mr Thoppil told her she was not allowed to leave work on time to go home and care for her child.

[111]We find the evidence suggested it was a matter for the claimant what time she left. The claimant has never given any particulars despite the specific order of Judge Eeley of when she was not allowed to leave work on time to go home and care for her child. Mr Thoppil absolutely denied ever saying the claimant was not allowed to leave work on time to go and care for her child.

[112]Accordingly, we find that although it was a very busy time and the claimant was working in a demanding role, we find the rest of the allegation which states the claimant “ was not allowed to leave work on time to go home and care for her child” is factually incorrect. The allegation therefore fails at that point.

[113]However in case we are wrong, we turn to the next issue. Did the claimant reasonably see the treatment as detriment. It appears that the claimant, a single parent, sees the treatment as detriment although she does not expressly refer to it in her witness statement or in her claim form.

[114]We turn to the next issue. Has the claimant proven facts from which the Tribunal could conclude that in any of those respects the claimant was treated less favourably than a man in the same material circumstances was or would have been treated.

[115]The list of issues said that the claimant was treated worse “than Dijeth and male members of staff in the workplace”. The claimant did not give any evidence about Dijeth or any other male members of staff in her statement.

[116]The Tribunal understands from Mr Thoppil’s evidence and from the rota that Dijeth was a member of staff “HCA” i.e. he was a care assistant. Although in cross examination there was some reference to Dijeth doing some administrative duties, there was no suggestion whatsoever that Dijeth was an Area Manager ,also covering the Manager’s role for a particular Home. We therefore find he is therefore not a comparator in the same material circumstances.

[117]The appropriate comparator is therefore a hypothetical male comparator who was an Area Manager with responsibility for a specific nursing home where a manager and deputy manager were not yet in post who was also a single parent with childcare responsibilities.

[118]There was no evidence whatsoever to suggest that a male comparator in the same material circumstances as the claimant i.e. a single parent doing the same job would have been treated any differently. The claimant has not adduced any evidence to shift the burden of proof.

[119]The Tribunal reminds the claimant, a litigant in person, that the long established principles in relation to discrimination cases require that there must be a “something more” to shift the burden of proof. It is not sufficient to have a difference in treatment and a difference in protected characteristic.

[120]We find there is no evidence to shift the burden and the claim fails. Direct race discrimination Section 13 Equality Act 2010

[121]The claimant is white British. She compares herself with those of Asian/Indian ethnicity.

[122]The Tribunal must ask itself what the facts in relation to the following allegation are: “the claimant was paid approximately £25,000 per year less than the Clinical Lead who had left the service a few weeks prior to the claimant”. See page 29.

[123]It is not disputed that there was a Clinical Lead who was required to be and was a qualified nurse who was paid considerably more than the claimant and was of Asian ethnicity and who resigned before the claimant was dismissed.

[124]There is no dispute the claimant considered being paid less than the Clinical Lead as a detriment.

[125]We turn to the next issue “if so has the claimant proven facts from which the Tribunal could conclude that in any of those respects the claimant was treated less favourably than a person who was of a different race or ethnicity in the same material circumstances was or would have been treated”.

[126]The Tribunal reminds itself that the Equality Act states a comparator must be in the same material circumstances. The claimant was an Area Manager with responsibility for three nursing home and particular responsibility for Hyde Nursing Home in the absence of a manager being in post. The Clinical Lead was someone required to have a nursing qualification doing a completely different job. The Clinical Lead is therefore not an appropriate comparator to the claimant because s/he is not a person in the same material circumstances and the claim therefore fails at that stage. That claim is misconceived and fails. Indirect Race Discrimination Section 19 Equality Act page 30.

[127]We turn to the first issue, a PCP is a provision criterion or practice. Did the respondent have the following PCP: (1) Allowing languages other than English to be used in the workplace in the claimant’s presence (“Asian languages”).

[128]We find there was no such PCP. We accept the evidence of Mr Thoppil that the Respondent employed care staff who came from many different countries. Many of them were not speaking English as their first language. He explained about the difficulties in the care home industry in recruiting and retaining staff. He explained that they employed some staff under the Migrant Workers Scheme. He said the language of communication in the workplace was English. However he explained on breaks staff might speak to each other in another language but he also explained that the other languages which staff were able to speak were not just Asian languages because the care home workers came from many different countries.

[129]The Tribunal is puzzled by this PCP. The claimant was the Area Manager. Only Mr Thoppil was senior to her. If the claimant thought a language other than English was being used in the workplace in the claimant’s presence or with residents, the claimant as the manager had the power to insist that the respondent’s policy of English being used could be asserted. Indeed, in response to one of the complaints from CQC, the claimant herself told the CQC “All staff on duty can speak English well and I have not come across any staff member who can not speak good English” p365.

[130]The Tribunal notes that this allegation is not in the claimant’s witness statement nor is it in the original claim form. Although some of the claimant’s witnesses who were family members of residents suggested there had been occasions where they heard a language other than English being used in the workplace, they both said they had not complained about it.

[131]We find the policy of the workplace was that the language to be used in the workplace was English. There is evidence of various meetings and communications in the bundle, all of which are in English. It was the claimant’s responsibility that there was good communication between staff as per page 274 of her job description.

[132]We therefore find the respondent did not have a PCP of allowing languages other than English to be used in the workplace or in the claimant’s presence (Asian languages) and the claim fails at that point. Harassment related to Race Section 26 Equality Act page 28

[133]We turn to the first issue. Did the first respondent do the following things, talk to other people in the claimant’s presence about the claimant in another language which was not English (an Asian language).

[134]Once again, this is an allegation for which the claimant did not identify when this happened, where it happened or whether there were any witnesses to it. It is not in her claim form or in her witness statement. When being cross examined she started to give specific details which she had never given before.

[135]Mr Thoppil denied speaking to other people in the claimant’s presence in another language which was not English. This allegation is extremely vague, it contains no particulars or dates. There is no evidence that the claimant ever complained to Mr Thoppil that he was speaking in her presence to other people in another language which was not English. There is no documentary evidence to support this.

[136]Accordingly, the Tribunal is not satisfied this allegation is factually correct and the claim fails at this stage. Unauthorised Deductions from Wages

[137]We now turn to the final claim which is unauthorised deduction from wages. The issue for the Tribunal is “were the wages paid to the claimant at the end of her employment less than the wages she should have been paid? The claimant maintains that she should have received payment in respect of the TOIL that she had accrued but not taken by the date of termination of her employment. “

[138]The Tribunal reminds itself that in a claim under Section 13 of the Employment Rights Act 1996 the Tribunal must consider whether the claimant has received less than the sums properly payable under the terms of the contract.

[139]The claimant is seeking a payment instead of TOIL. It is agreed TOIL means time off in lieu of hours worked.

[140]This is not a case in relation to deduction authorised by statute as identified in the list of issues. Neither is it a case of whether there was a deduction required or authorised by written term of the contract. There is no dispute either that the claimant had a copy of the contract.

[141]There is an issue missing in the list of issues. We must consider Section 13 (3) Employment Rights Act 1996.Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.

[142]We must therefore consider what was the total amount “properly payable” to the claimant when her employment ended.

[143]We must consider what the contract states in relation to the additional hours. The claimant’s contract of employment states at page 281 “she will be entitled to time off in lieu for these hours”. These hours appear to refer back to a “reasonable amount of overtime”. The entitlement under the terms of the contract is for time off in lieu of these hours. There is no contractual entitlement to payment for accrued but owed time off in lieu at termination of employment.

[144]Accordingly, the claim fails at that point because there is no contractual entitlement for payment for time off in lieu, only for time off in lieu.

[145]In addition, even if we are wrong about that, the claimant has never identified the amount she is seeking by way of a payment in lieu of TOIL. She has stated in her Schedule of Loss she is owed hours. She makes no specific claim in her witness statement. Even when asked in cross examination she could give no figure. She does not appear to have kept any diaries or records of the number of hours that she worked in overtime or submitted them to anyone.

[146]For all of these reasons the claim for unlawful deduction from wages pursuant to Section 13 Employment Rights Act 1996 is not well founded and fails.

[147]The claimant’s claims for Notice Pay and Holiday Pay were resolved so we do not need to consider the. Approved by