Mrs B Hunter v Securitas Security Services (UK) Ltd: 2409016/2023

EMPLOYMENT TRIBUNALS

Case No 2409016/2023

Between

Mrs B HunterClaimant

Securitas Security Services (UK) LtdRespondent

Before

Employment Judge Elliott

Date 28 May 2025

JUDGMENT

The Judgment of the Tribunal is that the respondent’s application to strike out the claim is refused.

REASONS

[1]This decision was given orally on 27 May 2025. The respondent requested written reasons.

[2]By a claim form presented on 25 August 2023 the claimant Mrs Bogumila Hunter brings claims of constructive unfair dismissal, direct discrimination because of race and sex, harassment related to race and sex, victimisation and whistleblowing detriment.

[3]The claimant worked for the respondent as a Team Manager / Building Manager from 2 April 2019 to 15 March 2023 when she resigned. The respondent is a national company which provides security and ancillary services to clients. This remote hearing

[4]The hearing was a remote public hearing, conducted using the cloud video platform (CVP) under Rule 46. The parties consented to the matter being heard by video.

[5]In accordance with Rule 46, the tribunal ensured that members of the public could attended and observe the hearing. This was done via a notice published on Courtserve.net. No members of the public attended.

[6]The parties were able to hear what the tribunal heard and see the witnesses as seen by the tribunal. From a technical perspective, there were no difficulties of any substance.

[7]The participants were told that was an offence for them to record the proceedings.

[8]The only witness was the claimant. I was satisfied that she was not being coached or assisted by any unseen third party while giving her evidence. The issues for this hearing

[9]This was the third preliminary hearing in these proceedings. The first took place on 24 January 2024 before Employment Judge Dunlop. The second took place on 9 April 2025 before Employment Judge Eeley.

[10]The issues for this hearing were identified at the hearing on 9 April before Employment Judge Eeley as follows: a) whether all or any of the claimant’s claims should be struck out:(i) pursuant to rule 38(1)(a) for having no reasonable prospects of success; or

(ii) pursuant to rule 38(1)(b) because the manner in which the proceedings have been conducted by or on behalf of the claimant has been unreasonable; or

(iii) pursuant to rule 38(1)(c) for non-compliance with an order of the Tribunal. b) whether the claimant should be required to pay a deposit to continue with all or any of the claims brought because the claim or claims have little reasonable prospect of success. c) whether it is possible to finalise the list of issues in the case (which is to be used at the final hearing.)

[11]There is a full-merits hearing listed to take place on 21, 22, 23, 24 and 25 July 2025.

[12]The List of Issues for the full merits hearing, as it stood at start of this hearing on 27 May 2025, is at the end of this document. Witnesses and documents

[13]There was a bundle of documents prepared by the respondent for the last preliminary hearing on 9 April 2025 of 104 pages plus a supplemental bundle from the claimant of 17 pages.

[14]The respondent provided 8 authorities to the tribunal, copied to the claimant. It also included three screen shots for an organisation called Justice Law Consultancy in London. Mr Swanson for the claimant works for Justice Law Consultants in Birmingham and said it was not the same organisation. Mr Swanson said he is a qualified CILEX and experienced in employment law.

[15]Oral submissions were made by both parties. All submissions and any authorities referred to, were considered, whether or not expressly referred to below.

[16]The claimant submitted a revised list of issues about 15 minutes before the start of this hearing and Mr Swanson sent this through to the tribunal. Mr Lee said this arrived very late, but it did not solve the root problems as he saw it. The claimant’s attendance

[17]Mr Swanson for the claimant said that his client was aware of the hearing but she would not be attending. He said that the only reason she may need to be present would be in relation to evidence about her ability to pay a deposit and he had the information if it were needed.

[18]Mr Lee for the respondent objected and said it was not satisfactory for the claimant not to provide evidence as to her means.

[19]We took a mid-morning break between the respondent and claimant’s submissions. After that break I informed Mr Swanson that he may, over the lunch break, wish to take steps to secure his client’s attendance in the event that the tribunal was minded to make a deposit order and information was needed as to her ability to pay. Mr Swanson made those enquiries and the claimant attended at 2:40pm

[20]I also asked Mr Swanson to say, whether in the light of the respondent’s submissions, each of the 23 factual allegations were relied upon or if any were no longer relied upon. As set out below, a number of factual allegations were withdrawn. The application for strike out or a deposit order

[21]At a case management hearing on 24 January 2024, the claimant was ordered to provide further and better particulars of her claims, by addressing the matters which were set out in bold in the draft List of Issues attached to that Case Management Order. The claimant had 28 days from the date when the Case Management Order was sent to the parties in order to comply. The Case Management Order was sent to the parties on 30 January 2024 so the date for compliance was 27 February 2024.

[22]On 25 June 2024 the respondent’s representative wrote to the tribunal setting out their position as to the lack of particulars in the claimant’s case. They made an application for strike out or a deposit order. The respondent said that the claimant had not complied with the Order to provide further particulars.

[23]On 12 August 2024 Employment Judge Benson issued a Strike Out Warning in respect of non-compliance with the Order of 24 January 2024. The claimant was to respond by 19 August 2024.

[24]On 20 August 2024 the claimant applied for an extension of time to provide the information.

[25]On 21 August 2024 the claimant sent a lengthy list of issues providing further information about her case. It set out 23 factual allegations, most of which were relied upon under each jurisdictional heading.

[26]On 7 February 2025 the respondent said that the parties had been directed to agree a final list of issues and had been unable to do so. This was to be done by 24 June 2024.

[27]The respondent raised a number of complaints about the claimant’s further particulars. They said that they did not have fair notice of the claim to be answered and in addition they said that the claim, as pleaded, had no, or alternatively little, reasonable prospect of success.

[28]In response to this application the tribunal listed a Case Management hearing on 9 April 2025. On 7 March 2025 the respondent raised the matter of its strike out and deposit order applications and asked if it would be considered at that hearing. It was converted to a public hearing so that the applications could be considered.

[29]On the morning of 9 April 2025, in preparation for the hearing in the afternoon, the claimant sent responses typed in blue into the respondent’s application of 7 February 2025.

[30]In response to the respondent’s contention that there was no pleaded protected disclosure for the whistleblowing claim, the claimant said that “the stated disclosure is clear” and they did not see what clarification was required. The claimant said that the whistleblowing detriments were clear and criticised the respondent for the time taken to raise these matters.

[31]The claimant confirmed that she relied on the same matters for direct discrimination as she did for the harassment claim under section 26 Equality Act.

[32]The claimant contended that the victimisation claim was also clear.

[33]There were criticisms from the claimant about the respondent’s compliance with Case Management Orders.

[34]It was clear from the claimant’s correspondence, which I confirmed with Mr Swanson at this hearing, that the claimant’s position was that she had complied with the Order to provide further particulars of her claim.

[35]I checked with Mr Swanson that the claim for unfair dismissal was just under section 98(4) and no other jurisdictional heading. Mr Swanson said the claimant also alleged that the dismissal was discriminatory. This was not clear from the List of Issues as then drafted, including the List sent by the claimant on the morning of this hearing. Mr Swanson said that the claimant also wished to rely on the dismissal being an act of discrimination, both as to direct discrimination and harassment. He accepted this was not pleaded. This is dealt with in a separate Case Management Order of today’s date. The respondent’s submissions

[36]The respondent said that the claimant accepted that there was a complaint about her from the client, regarding some emails sent to contractors and staff; that there was an investigation arising from that and that no further action was taken. The respondent said it did no more than was required in the light of the client’s complaint. The respondent said there was an innocent background and the claimant had yet to set out why she said there was more to it than that. The claimant appeared to suggest that it was a breach of contract for an employer to act upon a complaint from a client. As it went no further than investigation, it was hard to see how the respondent could be criticised.

[37]The respondent said that the claimant did not set out the contractual breaches relied upon.

[38]The respondent said that the claimant had not made her particulars clear as ordered by the tribunal in January 2024. They said that the “cut and paste” approach did not suffice. Unfair dismissal

[39]For unfair dismissal, the claimant was ordered to set out what she relied upon as acts amounting to a fundamental breach of contract. What she had done, was to set out 23 factual allegations, cut and pasted from the Grounds of Complaint. This did not, in the respondent’s submission, specify the claim with any more certainty. For example 1.1.1.3 was said to be a text message telling the claimant they had received some concerning emails that her manager would like to discuss with her. The respondent said that it was extremely difficult to say how that had any reasonable prospect of success. At 1.1.1.6, the claimant relied on being told “I am happy that there is no breach of policy at this moment in time. I will be issuing an informal ﬁle note and I will be approaching the client regarding re-training.” The respondent said it was hard to see how this was a breach of contract. At 1.1.1.19 this was being told that a hearing had been rearranged. The same point applied. At point 1.1.1.22 the claimant was told there was no case to answer against her and a letter on 6 March 2023, paragraph 1.1.1.23, that the matter would not be progressing to a disciplinary hearing.

[40]The respondent said it was hard to see the material breach of contract. The claimant was called to an investigation and feels this should not have happened. On that basis the respondent said there was no prospect of a constructive dismissal claim succeeding. Direct sex and race discrimination

[41]The respondent said that the claimant had not named a comparator. I noted that she had. She had named RH and in the alternative a hypothetical comparator at paragraph 5.4 of the List of Issues. The respondent accepted this.

[42]The respondent said the claimant had not said why this treatment was because of her race and/or sex. The respondent said it was difficult to eke out what was the less favourable treatment amid the allegations and the onus was the claimant set out the real reason. The respondent submitted that the claimant simply repeated a long list of allegations, some of which they said were particularly weak. Harassment

[43]The respondent said it was little more than the reattachment of a label relating to the procedures that came about as a result of the client complaint. The claimant had simply recited the 23 allegations. This did not take the respondent any further. The protected disclosures

[44]The claimant said she relied on “the facts set out in paragraphs 6, 12 and 13 of her Grounds of Claim” in terms of her protected disclosures. These paragraphs say as follows: 6 During the meeting the claimant highlighted that if the client was not happy with her after three years in her role, maybe she should be retrained. Shaun Nicholson said the client had said that overall they were happy with the way the claimant worked. 12 The claimant was asked about her data processing knowledge and what CCTV training she had. She explained the only CCTV training she had was 4 years before, when there was an element of CCTV training. The claimant explained that nobody ever told her the things she could not do and she only used her common sense. She said the client Workman knew about this, specifically Workman’s member of staff named Steven, who the claimant said had sent CCTV footage she sent to him to a third party, the property manager was copied in, and the claimant felt if the property manager knew about it, she had not done anything wrong. 13 The claimant asserts the respondent has not given her any form of training, on CCTV or GDPR.

[45]The respondent said that paragraph 12 was the “only possible” representation of a protected disclosure and this was “the best that it gets”. It was a verbal disclosure and all they were told is that the claimant said she sent CCTV to a third party. The respondent said there may be nothing wrong with sending CCTV footage to a third party and it did not come close to a protected disclosure. If there was anything wrong, it seemed to relate to her own contract and not to any protected disclosure in the public interest.

[46]For the second disclosure it was a cut and paste of paragraph 11 of the Particulars of Claim. There were no new particulars. This, in the respondent’s submission, did not address the inadequacy of the pleading as identified by the tribunal on 24 January 2024.

[47]The respondent said that the reason for any detriment which was the innocent background of the investigation of the client’s complaint. The claimant relied on the factual allegations 3 to 23 and also allegations 7 to 23 so they were unclear what the claimant relied upon.

[48]The respondent said it all arose from the client complaint in December 2022 so the actions that were taken, predated any of the disclosures. The victimisation claim

[49]The claimant relied on the protected disclosures as the protected acts and said she “relies on the facts set out at 2.1.1” in the List of Issues. Paragraph 2.1.1 and following, sets out the protected disclosures relied upon for the purposes of section 43B(1) Employment Rights Act 1996. The respondent’s comment was that it was not clear what the protected act was. The claimant appeared to rely on breaches of CCTV regulations or GDPR, which did not amount to a protected act.

[50]The respondent did not know what aspect of the Equality Act was relied upon in terms of the claimant’s protected act.

[51]The new List of Issues sent by the claimant’s representative on the morning of this hearing simply set out paragraphs that already existed and did not take the respondent any further.

[52]The respondent said that in terms of Cox v Addeco (below) they now knew what the claim is about. The claimant has had 17 months and various attempts to set out the claim. The respondent said that the claimant is professionally represented and it was not clear why the claim was set out in this way. The respondent accepted that it is rare to strike out a discrimination case where the central facts are disputed. The respondent said the central facts were not disputed; the core facts were agreed.

[53]The respondent said that following Ahir v British Airways (below), where on the facts there is an ostensibly innocent sequence of events, there is a burden on the claimant to say why this is not the real story (judgment paragraph 19). The claimant needs to say why it was more than just an investigation into a complaint by the client. Deposit orders

[54]The respondent said there was greater leeway in terms of a Deposit Order. The last seven of the nine principles in Cox v Adecco were relevant to Deposit Orders (judgment paragraph 28). The claimant’s submissions

[55]The claimant did not accept the respondent’s point that there was an innocent explanation for what happened. For example, allegation 22 which the claimant tied to allegation 23, in which Ms Whitehouse told the claimant that she was not progressing the matter to a disciplinary hearing “at this time”. This led the claimant to the view that it might happen at another time. The claimant said it left the door open for them to proceed with further action if they wanted to.

[56]On allegation 3, it was submitted that this was not an innocent matter because the respondent had initially decided that there was no breach of any policy and then went on to take action against her.

[57]The claimant withdrew factual allegations 6, 10, 11, 12, 16 and 22 under each jurisdictional heading, accepting that this was this was background information. The claimant was aware that she can refer to these matters in her witness statement. (All numbers started with 1.1.1 but for ease of reference I have just stated here the final numbered point).

[58]From allegations 8 onwards, this related to direct action against the claimant, including suspension from work which she considered a detriment.

[59]In terms of the protected disclosures, the claimant said in the first disclosure she stated she felt she was “being victimised” and this was a protected disclosure to the respondent. She believed that the disclosure was made in the public interest. I asked Mr Swanson why it was said to be in the public interest rather than in the claimant’s personal interests. It was submitted that the nature of her role was to provide security to the building and this necessitated surveillance of CCTV and the public may behave in ways which may breach the security of the building.

[60]For the second disclosure, the claimant said she had been asked by the client to review the CCTV footage and she did not think she was doing anything wrong. The claimant says she was being disciplined on at least 2 occasions for performing her role. She relied on paragraph 12 of her Grounds of Complaint, as set out above. The claimant said that the respondent’s client had asked her to provide CCTV footage, the client had referred it to a third party and she was being disciplined for what she says she was being paid to do; namely survey the CCTV.

[61]It was confirmed that the claimant relied on section 43B(1)(b) that her disclosures tended to show a breach of a legal obligation.

[62]The claimant said that the respondent now appeared to understand the claimant’s case; the issue appeared to be about the prospects of success.

[63]In terms of the dismissal as an act of discrimination, the claimant accepted that it was not pleaded, this was an error and it should have been there. Mr Swanson made a verbal application to amend to include the dismissal as an act of discrimination.

[64]The claimant said that her claims of discrimination, including harassment and victimisation, should not be struck out and relied upon Anyanwu (below). The claimant accepted that the tribunal was entitled to strike out, but said it was fact sensitive.

[65]Mr Swanson said it terms of the protected acts, the claimant relied on the same matters as the protected disclosures.

[66]The claimant said that the respondent complained that the matters complained of were not specific and were “cut and pasted”. The claimant said they were pasted under the relevant headings so that the respondent knew the case they had to meet. The claimant said the claims had reasonable prospects of success and the matters she has raised should go to a full hearing. The relevant law on strike out / deposit order

[67]Rule 38 of the Employment Tribunal Rules of Procedure 2024 provides that the Tribunal may strike out all or part of a claim or response or reply on a number of grounds including at Rule 38(1)(a) that it is scandalous or vexatious or has no reasonable prospect of success.

[68]A claim may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.

[69]Rule 40 provides as follows(1) Where at a preliminary hearing …. the Tribunal considers that any specific allegation or argument in a claim …. has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”).

(2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.

(3) The Tribunal's reasons for making the deposit order must be provided with the order and the depositor must be notified about the potential consequences of the order.

(4) If the depositor fails to pay the deposit by the date specified by the deposit order, the Tribunal must strike out the specific allegation or argument to which the deposit order relates.

(5) …

(6) …

(7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order— (a)the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown,….

[70]In Anyanwu v South Bank Students’ Union

2001 ICR 391

the House of Lords highlighted the importance of not striking out discrimination claims except in the most obvious cases as they are generally fact sensitive and require full examination to make a proper determination. It may be necessary to determine whether discrimination is to be inferred.

[71]Balls v Downham Market High School and College

2011 IRLR 217

the EAT said that the test is not whether the claim is likely to fail; nor is it a matter of asking whether it is possible that the claim will fail. It is not a test that can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is a high test. If can be unfair to strike out if there are crucial facts in dispute and there has been no opportunity to test the evidence. Strike out is a draconian power.

[72]In deciding whether to strike out a claim on the basis of no reasonable prospect of success the Tribunal is guided by the case of Cox v Adecco Group UK & Ireland

2021 ICR 1207

EAT which emphasises that there must be a reasonable attempt at identifying the claim and the issues before considering strike out or making a deposit order, and that the case must ordinarily be taken at its highest.

[73]On the subject of deposit orders HHJ Tayler said in Bahad v HSBC Bank plc

2002 EAT 83

“Experienced employment judges may sometimes feel that it is pretty clear that a claim will not succeed at trial and wish to save the expense and, possibly, the distress to the claimant of a failed claim. But that is what deposit orders were designed for.” (paragraph 26).

[74]In AH v Ishmail and Al-Megraby

EAT/0021/16

the EAT made the point that one of the purposes of a deposit order is to signal to the claimant the assessment of little reasonable prospects of success and warning her as to costs (paragraph 25).

[75]In Abertawe Bro Morgannwg University Health Board v Freguson

2013 ICR 1108

the EAT said that although in suitable cases applications to strike out may save time, expense and anxiety, in cases that are likely to be heavily fact sensitive the circumstances in which a claim will be struck out are likely to be rare.

[76]Ezsias v North Glamorgan NHS Trust

2007 IRLR 603

notes at paragraph 29 that in an exceptional case strike out is possible. The test is not “exceptionality”; it is whether there is no reasonable prospect of success.

[77]In Emuemukoro v Croma Vigilant (Scotland) Ltd

2022 ICR 327

the EAT said, in a case where an application to strike out was considered on the first day of trial, that it was clearly a highly relevant consideration as to whether a fair trial is possible within that trial window. Where a party’s unreasonable conduct has resulted in a fair trial not being possible within that window, the power to strike out is triggered. Whether or not the power ought to be exercised would depend on whether or not it is proportionate to do so. (Judgment paragraph 18).

[78]Ahir v British Airways plc

2017 EWCA Civ 1392

CA holds that Employment Tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established (paragraph 16)

[79]For the victimisation claim, a protected act is defined in section 27 Equality Act 2010 as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a)B does a protected act, or (b)A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a)bringing proceedings under this Act; (b)giving evidence or information in connection with proceedings under this Act; (c)doing any other thing for the purposes of or in connection with this Act; (d)making an allegation (whether or not express) that A or another person has contravened this Act. Decision on the strike out application

[80]In places the Particulars of Claim were not as clear as either the tribunal or respondent would have wished. I took into account the decision of the EAT in Cox v Adecco which stresses the importance of understanding a claim before it is possible to consider a strike out on the basis of it having no reasonable prospect of success. HHJ Tayler said at paragraph 28: “you can't decide whether a claim has reasonable prospects of success if you don't know what it is”.

[81]The claimant, with the benefit of representation, has had 3 attempts at clarifying her claim, including the revised List of Issues sent on the morning of this hearing. Towards the end of oral submissions, the respondent said that in terms of Cox v Addeco they now knew what the claim was about. The focus was on prospects of success. Whistleblowing

[82]I considered whether the claimant had, either in her ET1 or her further particulars, set out details of a protected disclosure. She relies upon paragraphs 6, 12 and 13 of her Grounds of Complaint which are set out above.

[83]Paragraph 6 says that at a meeting on 29 December 2022 the claimant told Mr Nicholson that if the client was not happy with her after 3 years, maybe she should be retrained.

[84]Paragraph 12 set out what happened at an investigatory meeting with Mr Nicholson on 9 January 2023. The claimant said that there was a discussion about her data processing knowledge and what CCTV training she had received. She said she told Mr Nicholson she “used her common sense” and she explained where the CCTV footage had been sent and that she felt that if the property manager knew about it, she had not done anything wrong.

[85]Paragraph 13 was a statement by way of a pleading: “The claimant asserts the respondent has not given her any form of training, on CCTV or GDPR”.

[86]It was hard to identify anything in those paragraphs that explained what the claimant actually said to Mr Nicholson which amounted to information tending to show that there had been a breach of a legal obligation.

[87]The claimant was asked to provide, by way of further particulars, the following information, namely “What did the claimant say or write? When? To whom?”. The particulars she was required to give were simple and clear. The information given was more of a narrative about what happened to her, how she felt and what Mr Nicholson had said to her.

[88]Turning to the particulars set out by way of additions to the List of Issues, the claimant relies on two disclosures, one she said was made on 29 December 2022 and the other on 9 January 2023. Both were in meetings with Mr Nicholson.

[89]Disclosure 1 refers to Mr Nicholson questioning her about emails sent; the claimant making a point that the building housed a Government organisation with strict security; that she gave information about making a phone call to the client which she said was ignored. It then states that the claimant said she “felt she was being victimised” because she had been accused by the client of watching them on CCTV and it was her role to carry out surveillance of CCTV.

[90]On my finding, the reference to victimisation was the closest that the claimant came to saying that she disclosed information that tended to show a breach of a legal obligation. There was nothing in the claimant’s pleadings or further particulars about having done a protected act prior to the meeting on 29 December 2022 for the purposes of a victimisation claim. The claimant did not say, for example, that she told Mr Nicholson that she felt she was being badly treated because she had made an earlier complaint of discrimination.

[91]I find that the claimant has little reasonable prospect of showing that she made a protected disclosure on 29 December 2023.

[92]Disclosure 2 again relies on paragraphs 12 and 13 of the Grounds of Claim and I have found that there is nothing in those paragraphs that identifies a protected disclosure having been made.

[93]In the further particulars within the List of Issues the claimant asserted that by informing Mr Nicholson of the client’s conduct in sharing the CCTV information, this would have been in breach of any CCTV and/or GDPR regulations. She says that this brought to the respondent’s attention its requirement to comply with a legal obligation. This is not the same as saying that she disclosed to Mr Nicholson that there was, or was likely to be, a breach of a legal obligation.

[94]The claimant has made three attempts, with the benefit of representation to set out what she actually said that amounted to a protected disclosure. I find that the claimant has little reasonable prospect of showing that she made a protected disclosure on 9 January 2023. Victimisation

[95]On the victimisation claim, I have considered whether the claimant has set out any information which discloses a protected act.

[96]The claimant’s case is that she relies on the same matters for protected disclosures as she does for protected acts under section 27 Equality Act 2010. The legal tests are very different.

[97]I can find nothing in the second disclosure that comes close to showing that the claimant said anything falling within the definition in section 27. For the first disclosure, there is the reference to the claimant saying that she felt victimised. For the same reasons as stated above, I find that the claimant has little reasonable prospect of showing that she did a protected act in the meeting on 9 January 2023. I find that the claimant has little reasonable prospect of showing that she was saying in that meeting that she was being subjected to a detriment because she made an earlier complaint of a breach of the Equality Act, or anything else in section 27(2). Constructive unfair dismissal

[98]The respondent made the point that the disciplinary investigation had an entirely innocent explanation and therefore could not amount to a fundamental breach of contract for the purposes of a constructive dismissal claim. The claimant accepts that there was a complaint from the client and she does not go as far as to say that when a client complains, it should not be investigated.

[99]The claimant said that where the innocent explanation ends, is with the information given to her by Mr Nicholson on 29 December 2022 that he could not see any breach of policy on her part. The claimant says that thereafter when the respondent went ahead with a disciplinary investigation, this amounted to a breach of contract and acts of discrimination. The respondent's explanation is that the client was dissatisfied with the speed of the investigation, as they felt the claimant had breached her use of CCTV.

[100]I take the view that the reasons for proceeding with the disciplinary investigation will need to be explored in evidence along with the decision to suspend the claimant from work. Case law has shown, for example Gogay v Hertfordshire County Council

2000 IRLR 703

CA and Mezey v South West London & St Georges Mental Health NHS Trust

2007 IRLR 244

that suspension can amount to a breach of the implied term of trust and confidence if there is no reasonable and proper cause for the suspension.

[101]I find that the claim for constructive unfair dismissal is not without prospects of success and I decline to strike it out or order that the claimant should pay a deposit as a condition of continuing to advance that argument. The claims for direct discrimination and/or harassment

[102]I am against the respondent on their argument that cutting and pasting a list of allegations is not compliant with the Tribunal’s Orders for further particulars. The claimant is entitled to rely on the same allegations under different heads of claim. There is nothing to stop an allegation which fails as race related harassment, for example, to succeed as direct race discrimination. The facts may be the same, the tests are different. There is also nothing to stop the claimant from saying that the acts she relies upon as amounting to a fundamental breach of contract, were also acts of discrimination.

[103]The evidence on these matters needs to be tested, in particular the reason for going ahead with a disciplinary process, having initially told the claimant that they saw no breach of policy in what she had done. The question of whether the suspension was justified will also need to be considered.

[104]I agree with the claimant’s submissions as to the care that the tribunal has to take in striking out discrimination claims. Although the respondent submitted that there was broad agreement on the facts of the case, there is likely to be a core factual dispute as to the reason why the respondent went ahead with a disciplinary process having indicated there was no breach of policy and the reason why they moved to a suspension.

[105]I decline to strike out those discrimination claims or order that a deposit should be paid. The strike out application for unreasonable conduct of the proceedings

[106]Rule 38(1)(b) says that the Tribunal may strike out all or part of a claim on grounds that that the manner in which the proceedings have been conducted by or on behalf of the claimant…. has been scandalous, unreasonable or vexatious.

[107]The respondent initially said that the failure to properly particularise the claim continued and this may compromise a fair trial. Towards the end of oral submissions the respondent said that they now knew what the claim was about and the focus was on prospects of success.

[108]In relation to Emuemukoro the respondent said that we are now very close to a full merits hearing and had not yet done witness statements so it may not be possible to have a fair trial within the trial window. I disagree. The full merits hearing is just under two months away. There is time for witness statements to be done.

[109]I decline to strike out the case under Rule 38(1)(b). The strike out application for non-compliance with a Tribunal Order

[110]Rule 38(1)(c) says that the Tribunal may strike out all or part of a claim for non-compliance with a Tribunal Order.

[111]I repeat what I said about the failure to particularise and the respondent saying that they now understood the case; it was about prospects.

[112]I decline to strike out the case under Rule 38(1)(c).

[113]A separate Deposit Order is made in relation to the claims for whistleblowing and victimisation. Employment Judge Elliott Date: 28 May 2025 Judgment sent to the parties and entered in the Register on: 28 May 2025 For the Tribunal THE LIST OF ISSUES as at 27 May 2025 This List of Issues is based on the precedent provided by employment judge Dunlop at the hearing on 24 January 2024 and includes the claimant’s further particulars with comments from the respondent. It shows the status of the List of Issues as at the start of this hearing on 27 May 2025.

[1]Unfair dismissal Dismissal1.1 Can the claimant prove that there was a dismissal?1.1.1 Did the respondent do the following things:1.1.1.1 [Claimant to list factual allegations] Subject the Claimant to sex and race discrimination in her employment by the employer’s managers including the conduct set out below.

1.1.1.2 The Respondent’s Shaun Nicholson, Deputy Branch Manager, sending a text message to the Claimant on 28th December 2022 when she was on annual leave requesting her to give him a call.

1.1.1.3 The text message of 28th December 2022 being followed by a letter of 29th December 2022 from Shaun Nicholson inviting the Claimant to an investigation meeting on same date at 14:00, whilst she was still on annual leave, to request her explanation for what he sated was a matter of concern, that is, “We have received some emails of which you have sent to contactors and staff. The content of which is concerning. I would like to discuss this with you in further detail.”

1.1.1.4 Shaun Nicholson questioning the Claimant In the meeting on 29th December 2022, about emails she had sent to the Respondent’s client regarding a visit to the site the Claimant managed by contractors to see one of the client’s staff on 20.12.2022

1.1.1.5 The Respondent accusing the Claimant of watching visitors on CCTV, when the Claimant’s very role required her to engage in providing security to the building which of necessity required surveillance of CCTV and the Respondent itself is engaged in the business of providing security services to its clients.

1.1.1.6 At the end of the meeting on 29th December 2022 Shaun Nicholson stating to the Claimant “I am happy that there is no breach of policy at this moment in time. I will be issuing an informal file note and I will be approaching the client regarding re-training.”

1.1.1.7 Shaun Nicholson sending a text message to the Claimant on 30.12.2022 informing the Claimant he had sent an email to the client and had received a response that the client was disappointed he had dealt with the matter so quickly, and stating he was waiting for advice on how to proceed and telling the Claimant not to go in to work when the Claimant was due to return.

1.1.1.8 The Claimant being written to by Shaun Nicholson on 05/01/2023 informing her that she was being suspended from work with effect from that date, 5th January 2023, to allow a full investigation into allegations of “Material breach of GDPR”.

1.1.1.9 The letter of 05/01/2023 informing the Claimant she could not contact any employees or customers of the Respondent without the Respondent’s permission; and that she should return any company property such as keys or passes from the duration of her suspension.

1.1.1.10 The Respondent suspending the Claimant from work affecting the Claimant’s mental health and that, together with the subsequent pursuit of a disciplinary investigation against her, causing the Claimant her further distress.

1.1.1.11 The Respondent’s suspension of the Claimant followed the Claimant being invited to further investigation/disciplinary meetings.

1.1.1.12 The Respondent subjecting the Claimant to a further investigation meeting on 09/01/2023 with Shaun Nicholson when she was questioned about CCTV footage he had seen of 6th December 2022, and the Claimant being asked if she had taken a photograph or video of the CCTV.

1.1.1.13 The Claimant being accused by Shaun Nicholson of breaking the law, stating the person had not consented to her taking his image, and her having no CCTV licence was also breaking the law. 1.1.1.14The Respondent not giving the Claimant any form of training, on CCTV or GDPR. 1.1.1.15 The Claimant being written to on 03.02.2023 by Shaun Nicholson inviting her to a disciplinary meeting on 07.02.2023 to discuss an allegation of gross misconduct for having “Obtained a copy of CCTV via recording said CCTV on another device”; and which included the statement that “should they be proven, it may result in your dismissal from the employment of Securitas. 1.1.1.16 The Claimant being caused further distress by the disciplinary allegations being brought against her. 1.1.1.17 The Respondent conducting the investigation and disciplinary process in an unfair way, and in breach of the Respondent’s own disciplinary procedures, and in breach of the ACAS Code of Practice on the handling of disciplinary procedures. [Paragraphs 1.1.1.16 and 1.1.1.17 were deleted by the respondent] 1.1.1.18 The Respond bringing disciplinary allegations against the Claimant following an investigation conducted by Shaun Nicholson, who took the initial decision to suspend the Claimant, and not by an independent investigator, and Shaun Nicholson being the person who made the decision to bring the disciplinary allegations, contrary to the ACAS Code of Practice. [comment from R ?] see below!] 1.1.1.19 The disciplinary meeting arranged for 07.02.2023 being cancelled, and the Claimant being sent a further letter on 10.02.2023, inviting her to a rescheduled disciplinary meeting on 15.02.2023 with the Respondent’s Joanne Whitehouse, Deputy Branch Manager, and Sameer Khan, the Respondent’s Areas Operations Support. 1.1.1.20 The Respondent’s Shaun Nicholson emailing the Claimant on 13.02.2023 informing her the disciplinary hearing fixed for 15.02.2023 was being cancelled in view of the “new relevant information” that had come to light and requiring the Claimant to attend a further investigation meeting on that same date, which was to be conducted by the Joanne Whitehouse, who was also to conduct the disciplinary meeting. 1.1.1.21 The Respondent’s manager Joanne Whitehouse questioning the Claimant at the meeting on 15.02.2023, at which Shaun Nicholson was the notetaker, when a number of issues were raised regarding CCTV footage, the conduct of the staff of the Respondent’s client Workman; the conduct of contractors in the building, issues around CCTV licenses; the taking of images of CCTV on the request of client’s staff and issues around training. 1.1.1.22 The Claimant being written to by Joanne Whitehouse on 6th March 2023, informing the Claimant that “I am able to advise you, that having concluded my investigations, it has become apparent that you have no case to answer”. 1.1.1.23 The letter by Joanne Whitehouse on 6th March stating in the first paragraph “I write to advise you that I have concluded my investigation and will not be progressing matters to a disciplinary hearing at this time”, leaving the Claimant with the impression that the manager could decide to progress matters to a disciplinary at another “time”, and causing the Claimant to believe the matters might be raised again at some other time, leaving a cloud over the Claimant’s head. [all words from “at this time” deleted by Respondent]

1.1.2 Did that breach the implied term of trust and confidence? Taking account of the actions or omissions alleged in the previous paragraph, individually and cumulatively, the Tribunal will need to decide:1.1.2.1 whether the respondent had reasonable and proper cause for those actions or omissions, and if not

1.1.2.2 whether the respondent behaved in a way that when viewed objectively was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent.

1.1.3 Was the fundamental breach of contract a reason for the claimant’s resignation.

1.1.4 Did the claimant affirm the contract before resigning, by delay or otherwise? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach. Reason for dismissal

1.2 Has the respondent shown the reason or principal reason for the fundamental breach of contract?

1.3 Was it a potentially fair reason under section 98 Employment Rights Act 1996? Fairness

1.4 If so, applying the test of fairness in section 98(4), did the respondent act reasonably in all the circumstances in treating that reason as sufficient reason to dismiss the claimant?

[2]Protected disclosures2.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:2.1.1 What did the claimant say or write? When? To whom? The claimant says she made disclosures on these occasions: PD1 [Claimant to list date and brief details of what was said, to whom and whether written or verbal;] The Claimant relies on the facts set out in paragraphs 6, 12 and 13 of her Grounds of Claim. Respondent’s comment: [6, 12 AND 13 ARE ONLY IN RELATION TO HER CONTRACT AND IS NOT A PD] Paragraph 6. In the meeting with the Claimant on 29th December 2022, Shaun Nicholson questioned the Claimant about emails she had sent to the Respondent’s client regarding a visit to the site the Claimant managed by contractors to see one of the client’s staff on 20.12.2022. The Claimant made the point the building housed a government organization with strict security. The Claimant confirmed in the meeting she had telephoned the client’s member of staff and had seen him check his phone when the Claimant called, but the client’s member of staff ignored the call. The Claimant stated she felt she was now being victimized as she had a meeting with the client’s Priya Patel on 21.12.2022 regarding the incident, and the Claimant had been accused of watching them on CCTV, when the Claimant’s very role required her to engage in providing security to the building which of necessity required surveillance of CCTV and the Respondent itself is engaged in the business of providing security services to its clients. R comment: [THE ABOVE HAS NOTHING TO DO WITH PARA 6, 12 OR 13 AND IS NOT CONTAINED THERE]; PD2 Paragraphs 12 and13 of Grounds of Claim. The Claimant was subjected to a further investigation meeting on 09/01/2023 with Shaun Nicholson when she was questioned about CCTV footage he had seen of 6th December 2022. The Claimant was asked if she had taken a photograph or video of the CCTV. The Claimant confirmed she had taken a video of the CCTV to show to her facilities manager, who had informed the Claimant that she, the facilities manager, would attend the site and the Claimant wanted to discuss the situation with that manager. The Claimant was asked if she had a CCTV license, to which replied no. The Claimant was asked if she had permission from the person on the CCTV exiting the lift to take his image, to which the Claimant replied no. The Claimant was accused by Shaun Nicholson of breaking the law and the person had not consented to her taking his image, and having no CCTV licence was also breaking the law. The Claimant responded that it was to protect the building. The Claimant further explained she had been asked by the client to review the CCTV to see who was causing damage to the toilet and depositing wrong items in the bins, and she did not think she was doing anything wrong. She informed Shaun Nicholson she had also been asked to do so by a previous manager, and it was not always related to criminal behaviour. The Claimant asserts that her informing Shaun Nicholson of the client’s conduct in sharing the CCTV information she was requested to provide to the client, would have been in breach of any CCTV and/or GDPR regulations, and that she therefore made a protected disclosure under the Public Interest Disclosure Act 1998 in bringing to the Respondent’s attention its requirement to comply with a legal obligation. Respondent’s comment: [PARA 12 AND 13 DO NOT COVER THESE MATTERS AND IT IS DIFFUCULT TO UNDERSTAND EXACTLY WHAT IS ALLEGED TO HAVE BEEN ANY PROTECTED DISCLOSURE] [NEITHER ALLEGED DISCLOSURE APPEARS TO REVEAL ANY]

2.1.2 Did she disclose information?

2.1.3 Did she believe the disclosure of information was made in the public interest?

2.1.4 Was that belief reasonable?

2.1.5 Did she believe it tended to show that:2.1.5.1 a criminal offence had been, was being or was likely to be committed;

2.1.5.2 a person had failed, was failing or was likely to fail to comply with any legal obligation;

2.1.5.3 a miscarriage of justice had occurred, was occurring or was likely to occur;

2.1.5.4 the health or safety of any individual had been, was being or was likely to be endangered;

2.1.5.5 the environment had been, was being or was likely to be damaged;

2.1.5.6 information tending to show any of these things had been, was being or was likely to be deliberately concealed.

2.1.6 Was that belief reasonable?

2.2 If the claimant made a qualifying disclosure, was it a protected disclosure because it was made to the claimant’s employer. [tbc] The Claimant avers the protected disclosures were made to the Respondent’s manager as set out at under paragraph 2.1.1 above.

[3]Detriment (Employment Rights Act 1996 section 48)3.1 What are the facts in relation to the following alleged acts or deliberate failures to act by the respondent? D1 [Claimant to list date and brief details, including name of person responsible] The Claimant relies on the facts set out at 1.1.1.3 to 1.1.1.23 above; and the protected disclosures made to the Respondent manager as set out at under paragraph 2.1.1 above. Respondent’s comment [SIMPLY REPEATS WHOLE OF CLAIM FORM] D2 The detriments to which the Claimant was subjected are set out a 1.1.1.7 to 1.1.1.23 and include: Respondent’s comment: [NOT CLEAR – SEE ABOVE – THESE PROVISIONS ARE ALREADY INCLUDED AS DETRIMENTS] 1.1.1.7 Shaun Nicholson sending a text message to the Claimant on 30.12.2022 informing the Claimant he had sent an email to the client and had received a response that the client was disappointed he had dealt with the matter so quickly, and stating he was waiting for advice on how to proceed and telling the Claimant not to go in to work when the Claimant was due to return. 1.1.1.8 The Claimant being written to by Shaun Nicholson on 05/01/2023 informing her that she was being suspended from work with effect from that date, 5th January 2023, to allow a full investigation into allegations of “Material breach of GDPR”. 1.1.1.9 The letter of 05/01/2023 informing the Claimant she could not contact any employees or customers of the Respondent without the Respondent’s permission; and that she should return any company property such as keys or passes from the duration of her suspension. 1.1.1.10 The Respondent suspending the Claimant from work affecting the Claimant’s mental health and that, together with the subsequent pursuit of a disciplinary investigation against her, causing the Claimant her further distress. 1.1.1.11 The Respondent’s suspension of the Claimant followed the Claimant being invited to further investigation/disciplinary meetings. 1.1.1.12 The Respondent subjecting the Claimant to a further investigation meeting on 09/01/2023 with Shaun Nicholson when she was questioned about CCTV footage he had seen of 6th December 2022, and the Claimant being asked if she had taken a photograph or video of the CCTV. 1.1.1.13 The Claimant being accused by Shaun Nicholson of breaking the law, stating the person had not consented to her taking his image, and her having no CCTV licence was also breaking the law. 1.1.1.14The Respondent not giving the Claimant any form of training, on CCTV or GDPR. 1.1.1.15 The Claimant being written to on 03.02.2023 by Shaun Nicholson inviting her to a disciplinary meeting on 07.02.2023 to discuss an allegation of gross misconduct for having “Obtained a copy of CCTV via recording said CCTV on another device”; and which included the statement that “should they be proven, it may result in your dismissal from the employment of Securitas.” 1.1.1.16 The Claimant being caused further distress by the disciplinary allegations being brought against her. 1.1.1.17 The Respondent conducting the investigation and disciplinary process in an unfair way, and in breach of the Respondent’s own disciplinary procedures, and in breach of the ACAS Code of Practice on the handling of disciplinary procedures. 1.1.1.18 The Respondent bringing disciplinary allegations against the Claimant following an investigation conducted by Shaun Nicholson, who took the initial decision to suspend the Claimant, and not by and independent investigator, and Shaun Nicholson being the person who made the decision to bring the disciplinary allegations, contrary to the ACAS Code of Practice. 1.1.1.19 The disciplinary meeting arranged for 07.02.2023 being cancelled, and the Claimant being sent a further letter on 10.02.2023, inviting her to a rescheduled disciplinary meeting on 15.02.2023 with the Respondent’s Joanne Whitehouse, Deputy Branch Manager, and Sameer Khan, the Respondent’s Areas Operations Support. 1.1.1.20 The Respondent’s Shaun Nicholson emailing the Claimant on 13.02.2023 informing her the disciplinary hearing fixed for 15.02.2023 was being cancelled in view of the “new relevant information” that had come to light and requiring the Claimant to attend a further investigation meeting on that same date, which was to be conducted by the Joanne Whitehouse, who was also to conduct the disciplinary meeting. 1.1.1.21 The Respondent’s manager Joanne Whitehouse questioning the Claimant at the meeting on 15.02.2023, at which Shaun Nicholson was the notetaker, when a number of issues were raised regarding CCTV footage, the conduct of the staff of the Respondent’s client Workman; the conduct of contractors in the building, issues around CCTV licenses; the taking of images of CCTV on the request of client’s staff and issues around training. 1.1.1.22 The Claimant being written to by Joanne Whitehouse on 6th March 2023, informing the Claimant that “I am able to advise you, that having concluded my investigations, it has become apparent that you have no case to answer”. ` 1.1.1.23 The letter by Joanne Whitehouse on 6th March stating in the first paragraph “I write to advise you that I have concluded my investigation and will not be progressing matters to a disciplinary hearing at this time”, leaving the Claimant with the impression that the manager could decide to progress matters to a disciplinary at another time”, and causing the Claimant to believe the matters might be raised again at some other time, leaving a cloud over the Claimant’s head. Respondent’s comment [THE EXTENT TO WHICH DETRIMENT RELATES TO ANY PD IS WHOLLY UNCLEAR. MANY ALLEGED DETRIMENTS PREDATE ANY DISCLOSURE]

3.2 Did the claimant reasonably see that act or deliberate failure to act as subjecting him/her to a detriment?

3.3 If so, was it done on the ground that she made a protected disclosure?

[4]Harassment related to race and/or sex (Equality Act 2010 section 26)4.1 Did the respondent do the following alleged things:4.1.1 [Claimant to list date and brief details, including name of person responsible] The Claimant relies on the facts set out at 1.1.1.3 to 1.1.1.23 above. Respondent’s comment: [AGAIN, WHOLE OF ALLEGATIONS ALLEGED AS ACTS OF HARASSMENT]

4.1.2 As above.

4.2 If so, was that unwanted conduct?

4.3 Was it related to sex and/or race?

4.4 Alternatively was it of a sexual nature?

4.5 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

4.6 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[5]Direct discrimination on grounds of race and/or sex (Equality Act 2010 section 13)5.1 The claimant is female and Polish.

5.2 What are the facts in relation to the following allegations:5.2.1 [Claimant to list date and brief details including name of person responsible] The Claimant relies on the facts set out at 1.1.1.3 to 1.1.1.23. Respondent’s comment [WHOLE OF ALLEGATIONS ALREADY REFERRED TO]

5.2.2 As above.

5.3 Did the claimant reasonably see the treatment as a detriment?

5.4 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 someone in the same material circumstances who was male/of a different race was or would have been treated? [The claimant says she was treated worse than [names of comparators]; a male worker of African Caribbean origin named RH. In the alternative the claimant relies on a hypothetical comparison.

5.5 If so, has the claimant also proven facts from which the Tribunal could conclude that the less favourable treatment was because of race and/or sex?

5.6 If so, has the respondent shown that there was no less favourable treatment because of race and/or sex?

[6]Victimisation (Equality Act 2010 section 27)6.1 Did the claimant do a protected act as follows:6.1.1 [Claimant to identify date and brief details of alleged protected act?] The Claimant relies on the facts set out at 2.1.1 above. Respondent’s comment: [NOT CLEAR AT PARA 2.1.1 WHAT THE PROTECTED ACT IS]

6.1.2 As above.

6.2 Did the respondent do the following things: 6.2.1 [Claimant to list details of alleged detriments, including date and person responsible] The Claimant relies on the facts set out a 1.1.1.7 to 1.1.1.23 above.

6.3 By doing so, did it subject the claimant to detriment?

6.4 If so, has the claimant proven facts from which the Tribunal could conclude that it was because the claimant did a protected act or because the respondent believed the claimant had done, or might do, a protected act?

6.5 If so, has the respondent shown that there was no contravention of section 27?