Mrs K Foster v Tower Family Healthcare and others: 2409592/2020 and 2405501/2021

EMPLOYMENT TRIBUNALS

Case No 2409592/2020, 2405501/2021

Between

Mrs K FosterClaimant

1.Tower Family Healthcare 2. Simon De Vial 3. Paul Massey 4. Victoria Moyle 5. Kiran PatelRespondent

Before

Employment Judge Rice-Birchall

Date 28 July 2024

JUDGMENT

[1]The Claimant’s claims of Protected Disclosure Detriment in Claim 1 (2409592/20) are out of time and are dismissed.

[2]All claims and allegations against the Third Respondent are out of time and are dismissed.

[3]All other claims and allegations will proceed to a final hearing.

REASONS

(1) This was a preliminary hearing listed to determine jurisdiction regarding time limits for each of the claimant’s claims.

(2) The claimant has filed two claims, claim 1 (2409592/2020) on 07/08/2020 and claim 2 (2405501/2021) on 29/04/2021.

(3) In claim 1, the claimant alleges 17 protected disclosures, 8 protected acts, and avers that she suffered 11 detriments between the period 31 July 2019 to 27 February 2020, 7 acts of victimisation, disability discrimination on 3 occasions, failure to make reasonable adjustments and harassment on two occasions. The last detriment/victimisation took place on 27.2.20.

(4) Both claims are brought against the five respondents listed above. 1 of 18

(5) Paragraphs 1-58 of claim 2 replicate paragraphs 1-57 of claim 1 and goes on to make additional claims and allegations following the claimant’s expulsion from the first respondent (R1), referred to as “the additional allegations”. The two sets of proceedings are now combined. The additional allegations in claim 2 are not out of time and are not the subject of this preliminary hearing.

(6) The respondent alleges that, with the exception of the additional allegations, the claims are out of time and, accordingly, that claim 1 should be dismissed in its entirety (and with it all claims against the third respondent (R3) and that claim 2 should be able to proceed only in respect of the additional allegations.

(7) For ease of reference, the full list of issues is set out in the Annex to this Judgment. Issues

(8) The issues to be determined during this preliminary hearing are as follows:

(9) Were all of the claimant's claims brought in time?

(10) Does the conduct complained of amount to conduct extending over a period within the meaning of section 123(3)(1) of the EqA or part of a series of similar acts or failures under section 48(3) ERA?

(11) If not, would it be just and equitable to extend time for any claims brought under the EqA?

(12) Was it reasonably practicable for the claimant to bring her claims under the ERA in time?

(13) If not, were the claims nevertheless brought within such further period as the Tribunal considers reasonable?

(14) In particular there are the following issues for consideration. The respondent alleges: (i) Claim 1 was filed one day late. It was reasonably practicable for the claim to have been submitted in time and it would not be just and equitable to extend time; (ii) The claim against the third respondent is out of time as the last specific act pleaded against the third respondent is dated 14 January 2020; and (iii) Claim 2 is only capable of covering acts after 29 January 2021. It is, in any event, denied that the events are part of a series of similar acts or failures. Documents and Evidence

(15) The Tribunal had the benefit of a bundle of documents. It heard oral evidence from Mark Higgins, the claimant’s solicitor. It received written submissions from both counsel. It also heard oral submissions. 2 of 18 Facts

(16) Mr Higgins, solicitor, took instructions from the claimant in Spring 2020. He considered that the “last” act of alleged detriment/unlawful discrimination (under s47B), as the case then stood, occurred on 27 February 2020. He considered that this provided a primary time limit of 26 May 2020. Accordingly, he submitted ACAS early conciliation notifications in respect of each of the respondents around 22 May 2020. Early conciliation certificates were issued on 6 July 2020. He therefore understood that the last date to present the claim to the Employment Tribunals was 6 August 2020. That date is accepted by both parties as the last date to present the claim.

(17) As Mr Higgins was due to be on annual leave, he submitted the claim form and particulars of claim on 30 July 2020. However, he was unaware that ET1 claim forms may only be presented to HMCTS either by post (to the Central Office); by hand to a designated ET office; or by using the designated online claims submission form. He mistakenly believed that he could file an ET1 in the same way as an ET3, by email as an attachment. He knew that, in the past, claims had to be submitted online, but assumed this had changed when fees for bringing claims were abolished.

(18) Mr Higgins did not receive an automated response e-mail from the Tribunal. He became concerned when he still had received no automated response the following day. As he was on annual leave, he contacted his colleague, ES, and asked him to contact the Tribunal to confirm receipt of the ET1.

(19) ES did as instructed. He wrote a note of his call which stated “The clerk informed me that the ET1 would have been submitted by the portal and not by email and I explained that it had been sent by email. The clerk asked if the ET1 had been printed and attached to the email and I confirmed that it had.” According to the note at least, the Tribunal did not inform ES that a claim submitted in such a way could not be processed.

(20) ES then contacted Mr Higgins to confirm that the automated response was not working but that the email had been received. Mr Higgins assumed that the claim would be processed in due course.

(21) At 1134 on 31 July 2020, Mr Higgins resubmitted the claim, again as an attachment to an email, having noticed that a box remained unticked.

(22) On 7 August 2020, whilst on annual leave in Cumbria, Mr Higgins received an email from the Tribunal at 1213 to which was attached a letter entitled “Return Claim Form Notice.” It indicated that as the ET1 had not been submitted using one of the prescribed methods it was being returned to resubmit using one of the prescribed methods.

(23) Mr Higgins drove to Cockermouth to re-submit the ET1 via the online form. It was submitted at 1521. Claim against the third respondent (R3) 3 of 18

(24) The claim against R3, in claim 1 includes allegations of unlawful detriments under s47B, victimisation and harassment. There is no new claim against R3 in claim 2.

(25) The last detriment complained of which is attributed to R3 was on 6 Aug 19 (paragraph 20, claim 1).

(26) The last pleaded act of harassment in claim one against R3 is 14 January 2020, when it is alleged that R3 “made a series of derogatory comments in relation to mental health within the workplace in full knowledge of the Claimant’s own circumstances.” Paragraph 38 of claim 1 goes on to particularise what, it is alleged, was said by R3.

(27) Accordingly, the ordinary time limit would expire on 13 April 2020.

(28) Day A of the EC certificate against R3 is 22 May 2020 and Day B is 6 July 2020.

(29) Claim 1 was filed on 7 August 2020.

(30) As stated above, paragraphs 1-58 of claim 2 broadly replicate paragraphs 1- 57 of claim 1. The additional allegations relate to the claimant’s expulsion from the first respondent. The two sets of proceedings are now combined. The additional allegations in claim 2 are not out of time and are not therefore the subject of consideration at this preliminary hearing. However, the question for consideration is what is the impact of paragraphs 1-58 having been effectively repeated in claim 2, which is in time.

(31) Notably, claim 2 pleads an additional three detriments to the eleven pleaded in claim 1. Law

(32) Claim 1 includes claims of discrimination and detriments. The relevant time limits are set out below.

(33) Section 123 of the Equality Act 2010 (EqA) provides as follows: (1) …..a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable. 4 of 18 (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

(34) It is evident from the wording of s.123 that the ET has a wide discretion in deciding whether or not to extend time as being just and equitable.

(35) The Tribunal’s discretion is as wide as that of the civil courts under section 33 of the Limitation Act 1980 (British Coal Corporation v Keeble

(1997) IRLR 336

). Tribunals are therefore required to consider factors relevant to the prejudice that each party would suffer if an extension were refused, including: the length of, and the reasons for, the delay and the extent to which the cogency of the evidence is likely to be affected.

(36) There is no presumption in favour of extending time. In fact, Tribunals should not extend time unless the claimant convinces them that it is just and equitable to do so.

(37) Section 48 ERA provides as follows:

(38) (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B.

(39) (3) An [employment tribunal] shall not consider a complaint under this section unless it is presented— (a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4) For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer [, a temporary work agency or a hirer] shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

(40) The test under section 48 imparts a two part test: was it reasonably practicable to file the claim within the deadline; and if not, did the claimant file within such further period as was reasonable. It is important to separate the two stages.

(41) The burden of proof is on the claimant (Porter v Bandridge Ltd). 5 of 18

(42) The enquiry is to consider the substantial cause failure and ask whether this demonstrates it was not reasonably practicable to present the claim in time. (Palmer and Saunders v Southend-on-Sea Borough Council). Practical is the equivalent of feasible.

(43) According to Wall’s Meat Co Ltd v Khan, “ignorance” of rights or a time limit is “not just cause or excuse unless it appears that he or his advisors could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault and he must take the consequences.”

(44) Case law clearly distinguishes the reasonable practicability of presenting a claim within the time limit when the claimant is represented by a “skilled adviser” from other circumstances. Where a claimant’s skilled advisors are at fault for failing to submit a claim in time, the Tribunal will usually consider that it was reasonably practicable for the claim to have been presented in time (Dedman v British Building and Engineering Appliances Ltd [1973]IRLR 379).

(45) In determining whether it is just and equitable to extend time under the EqA, the just and equitable application must be considered in respect of each Respondent separately (Harden v Wootlif, Smart Diner Group Limited

UKEAT/0448/14/DA

(46) It is important to understand the distinction between being a respondent and being a witness.

(47) In Arthur v London Eastern Railway Ltd (t/a One Stansted Express)

2007 ICR 193

, CA, the Court of Appeal held that S.48(3)(a) could cover a situation where the complainant alleges a number of acts of detriment by different people where, on the facts, there is a connection between the acts or failures to act in that they form part of a ‘series’ and are ‘similar’ to one another. There is no requirement for the acts to be committed by one person, or for all the acts to be very similar in context or even in proximity. In Lord Justice Mummery’s words, ‘there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them’. Such a link might be established by considering whether the acts had all been committed by fellow employees or, if not, what connection there was between the alleged perpetrators, or whether the acts were organised in any way. It would also be relevant to inquire why the perpetrators did what was alleged.

(48) “29 Parliament considered it necessary to make exceptions to the general rule where an act (or failure) in the short 3-month period is not an isolated incident or a discrete act. Unlike a dismissal, which occurs at a specific 10 moment of time, discrimination or other forms of detrimental treatment can spread over a period, sometimes a long period. A vulnerable employee may, for understandable reasons, put up with less favourable treatment or detriment for a long time before making a complaint to a tribunal. It is not 6 of 18 always reasonable to expect an employee to take his employer to a tribunal at the first opportunity. So an act extending over a period may be treated as a single continuing act and the particular act occurring in the 3-month period may be treated as the last day on which the continuing act occurred. There are instances in the authorities on discrimination law of a continuing act in the form of the application over a period of a discriminatory rule, practice scheme or policy. Behind the appearance of isolated, discrete acts the reality may be a common or connecting factor, the continuing application of which to the employee subjects him to ongoing or repeated acts of discrimination or detriment. If, for example, an employer victimised an employee for making a protected disclosure by directing the pay office to deduct £10 from his weekly pay from then on, the employee’s right to complain to the tribunal would not be limited to the deductions made from his pay in the 3 months preceding the presentation of his application. The instruction to deduct would extend over the period during which it was in force and the last deduction in the 3 months would be treated as the date of the act complained of.

(49) 30 The provision in section 48(3) regarding complaint of an act which is part of a series of similar acts is also aimed at allowing employees to complain about acts (or failures) occurring outside the 3-month period. There must be an act (or failure) within the 3-month period, but the complaint is not confined to that act (or failure.) The last act (or failure) within the 3 month may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time.

(50) 31 The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the 3-month period and 11 some outside it. The acts occurring in the 3-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within section 48(4) by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them. Section 48(3) is designed to cover such a case. There must be some relevant connection between the acts in the 3-month period and those outside it. The necessary connections were correctly identified by HHJ Reid as (a) being part of a “series” and (b) being acts which are “similar” to one another.”

(51) In the case of Pugh v The National Assembly of Wales (2006)

UKEAT/0251/06

, HHJ Serota QC clarified that there is no need for an employee to establish the existence of a “policy rule or practice in accordance with which decisions are made from time to time” but rather a Tribunal should look at the allegations in the round (including the allegations relating to the failure to consider the grievances) and ask whether looking at matters in the round, the employer was responsible for a continuing state of affairs (see also Barclays Bank v Kapur

(1991) IRLR 136

). 7 of 18

(52) It is necessary to consider the just and equitable application in respect of each respondent separately (Harden v (1) Wootlif (2) Smart Diner Group Limited

UKEAT/0448/14/DA

(53) The respondent relied upon Bexley Community Centre v Robertson

[2003] EWCA Civ 576

, in particular paragraph 18, set out below, as authority for the proposition that the additional allegations in claim 2 could not “revive” the allegations pleaded in claim one.

(54) Paragraph 18 states: “in any event, the Appeal Tribunal was not entitled to take the 5th October 1999 incident into account in considering whether there was a continuing act. That behaviour took place, as I have said, after the date of Mr Robertson's application, and could not properly be taken into account for the purpose of determining whether the complaint was out of time. Though it may be that it could have been relevant to the second and quite distinct issue whether it was just and equitable to consider the claim out of time.”

(55) The doctrine of res judicata prevents parties from re-litigating issues. It covers cause of action estoppel which prevents a party from pursuing a cause of action more than once. Respondent’s Submissions

(56) The respondent argues that Mr Higgins was ignorant of the prescribed method of filing the ET1 rather than of the time limit or the need to file the ET1 within that time limit. It states that information about how to lodge a claim is readily available and that Mr Higgins’ ignorance cannot therefore be reasonable, particularly in circumstances in which he had also assumed that rules must have changed following the abolition of fees.

(57) The respondent argues that the ERA claim is “dead” but that the EqA claims are “less clear cut”. It says that the Tribunal must consider the reason advanced as a starting point and then consider the balance of prejudice.

(58) The respondent says this is not about whether R3’s conduct lies at the heart of the case. The respondent makes the point that individual respondents cannot be jointly and severally liable for some acts, for example, reasonable adjustments and that this emphasises that the Tribunal must look at causes of action and respondents separately.

(59) The respondent argues that the Arthur principle only applies where there is one respondent, not as against multiple respondents. In other words the principles in Arthur only apply if the respondent is one entity. 8 of 18

(60) Whilst the respondent has conceded that the additional allegations have been brought in time, there is no concession as regards the repeat of the claims listed in claim 1.

(61) The claimant has sought to repeat the content of claim 1, but that does not allow them to circumvent the out of time issues they face with that claim. That would, in any event, be an abuse of process, especially if the only purpose of repeating those claims is to circumvent the out of time issue with claim 1. Claimant’s Submissions

(62) The claimant admits that claim 1 was lodged one day late. The claimant says: (i) It was not reasonably practicable for the claimant to submit the detriment claim in time given that the claim was emailed to the court on 30 July 2021 (in time) and despite efforts to chase the Tribunal, the claimant’s representatives were only made aware that the claim had been rejected on 7 August 2021 by which stage the time limit had expired. The claimant says it is a relevant factor that the claim was only rejected and notice given of that rejection after it was too late to comply with the deadline for filing a claim, thereby rendering it impossible to do so. (ii) The time limit for the EqA claims can be extended on the grounds that it is just and equitable to do so on the following basis:

a. The mistake was made innocently by the claimant’s solicitor and was not discovered until after expiry of the time limit;

b. The claim was filed in time, albeit that there was a technical breach;

c. Immediate steps were taken to remedy the matter;

d. Zero prejudice to the respondents;

e. If the claim is rejected it would result in considerable prejudice to the claimant and a windfall to the respondents; and

f. The allegations are still justiciable as part of the factual matrix relevant to claim 2. (iii) Claim 2 was issued in time and has the same factual matrix as claim

Law

[1]There is no proper basis to conclude that the acts are not part of a series of similar acts at this stage. 9 of 18 (63) The claimant says that R3’s conduct lies at the heart of the case, and that it would be artificial to cherry pick out individuals, because the same claims exist in any event against R1. (64) The claimant says that the claim is against all of the respondents, and the fact that the last pleaded incident against R3 was on 14 January 2020 makes no difference, as R3’s conduct was part of a series of acts by a number of connected individuals, which the claimant relies on in totality as demonstrating acts extending over a period of time. The claimant says it is therefore wrong to consider the discrete acts of each individual to establish time limits. (65) For the purposes of section 48(3) ERA the Tribunal is entitled to consider the similarity of the acts extending over a period of time to establish whether the last act is attributable to the same/similar core events which led to the proceedings. To do otherwise would defeat the effect of section 48(3) and would run counter to Arthur. (66) Nothing in section 48(3) ERA states that the specific acts in issue must be committed by the same individual before they can be viewed as a series of similar acts. (67) The allegations against R3 can still be pursued in any event against R1 as a principal, consequently his removal from proceedings will achieve nothing of value. (68) The claimant alleges that claim 2, which the respondent accepts is a validly issued claim and is not out of time, must mean that all of the allegations are now in time as they form a continuing act/ series of similar acts, or at very least that the determination of that fact ie whether they do form a continuing act/series of similar acts is something which needs to be determined at the final hearing. (69) According to the claimant, the only relevant question is whether or not the additional allegations form part of the continuing act. If they do, everything is in time. (70) The claimant says that the respondent cannot raise any abuse of process points at the hearing as that is an argument which was not previously mentioned. Conclusions ERA claims (71) The burden remains on the claimant to show that it was not reasonably practicable for the application to have been lodged within time. 10 of 18 (72) The claimant was represented at all material times by a skilled advisor. (73) Mr Higgins could, and should, have checked the appropriate method for submission of the claim form and not made an assumption that, as fees were no longer payable, a claim form could be submitted by email. (74) The Tribunal specifically queried whether the claim form had been submitted via the online portal, albeit that ES was left with the impression that the email would be processed. (75) The Tribunal is not under any duty or obligation to notify a claimant in a timely manner that a claim has been lodged incorrectly. In reality, that notification could have been received sooner or later. (76) The fact that Mr Higgins was able to submit the claim by email to the Tribunal within the time limit is evidence that it was reasonably feasible or practicable for him to have lodged the claim in time correctly. His ignorance of the correct method of filing the claim was not reasonable, as a skilled advisor, based on an assumption as it was, in all the circumstances. (77) The allegations of detriment in claim 1 are therefore out of time. EqA claims (78) The starting point is that there is public interest in the enforcement of time limits which are exercised strictly in employment tribunals. (79) However, in this case, the delay is not substantial: one day. Although the reason for the delay was of Mr Higgins’ own making, in that he did not think to check how to present a claim and further made an erroneous assumption about how claims could be submitted, the error was genuine and made innocently and was rectified as soon as it was brought to his attention. (80) The claimant would be unable to pursue the claims of disability discrimination and victimisation articulated in claim 1 (ignoring for the moment claim 2 and any effect, if any, it may have on claim 1) if the Tribunal was not to exercise its discretion in her favour. Plainly, the one day by which the claimant has missed the deadline could not affect the cogency of the evidence about any material issue of fact. In any event, the respondent will still have to defend, as a minimum, the additional allegations set out in claim 2. (81) Having considered all of the above, and the balance of prejudice as it weighs between the parties, the Tribunal considers that it would be just and equitable to extend time and allow the EqA claims in claim 1 to proceed. (82) Claim against R3 (83) The last detriment complained of which is attributed to R3 was on 6 Aug 19 (paragraph 20, claim 1). 11 of 18 (84) The Tribunal has already found (under “Submission of claim 1” above) that the allegations of detriment under the ERA in claim 1 are out of time as it was reasonably practicable for the claim to have been lodged in time. This includes the allegations which are attributed to R3. (85) The last pleaded act of harassment in claim 1 against R3 is 14 January 2020, when it is alleged that R3 “made a series of derogatory comments in relation to mental health within the workplace in full knowledge of the Claimant’s own circumstances.” Paragraph 38 of the claim form goes on to particularise what, it is alleged, was said by R3. (86) Accordingly, the ordinary time limit would expire on 13 April 2020. (87) The Tribunal is not persuaded by the claimant’s argument that the Tribunal needs to consider things in the round and consider the allegations made against all of the respondents when determining whether the claim is out of time. The Tribunal agrees that that would be the correct approach if the issues being considered related to R1, which is, in any event, vicariously liable for the acts of its employees. (88) Whilst it is true that, for the purposes of section 48(3) ERA the Tribunal is entitled to consider the similarity of the acts extending over a period of time to establish whether the last act is attributable to the same/similar core events which led to the proceedings, that is relevant where a respondent may be vicariously liable for the acts of a number of individuals. Here, the Tribunal is tasked to consider whether the claims and allegations against one respondent of a number of respondents are out of time. That respondent (R3) cannot be vicariously liable for the acts of others and therefore the appropriate consideration is of the allegations made against him, and him alone. That does not run counter to Arthur, which concerns itself with the potential liability of one respondent, usually an employer, from acts or omissions which may be committed by a number of different individuals and which may be connected. (89) As regards the allegations of discrimination against R3, the last of which was on 20 January 2020, the Tribunal considers that it is not just and equitable to extend time. (90) The Tribunal considers that the balance of prejudice weighs in favour of R3. There is a significant difference between being a witness and a respondent in a claim and the allegations made against R3 can still be pursued against R1. (91) For the reasons stated above, all claims and allegations brought against R3 are out of time, and are struck out. (92) Obviously, in this case, the consideration of the effect of claim 2 is limited to the ERA claims as the Tribunal has concluded that it was just and equitable to extend time to bring the EqA claims in claim 1. 12 of 18 (93) As to the question of whether claim 2 effectively resurrects the detriments pleaded in claim 1 despite claim 1 being out of time, the Tribunal concludes that that cannot be the case, and that the impact of the detriments pleaded in claim 1 being out of time cannot be avoided by the repetition of those detriments in claim 2. (94) The claimant cannot use the submission of claim 2, in which the allegations made in claim 1 are repeated, as a way to avoid the consequences of the late submission of claim 1. (95) The doctrine of res judicata applies to prevent parties from re-litigating the same issues. Cause of action estoppel prevents a party from pursuing a cause of action more than once, and prevents the claimant from having two “bites of the cherry”.

Conclusions

[1]The complaint of direct disability discrimination is not well-founded and is

[2]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.

[3]The complaint of harassment related to disability is not well-founded and is

[4]The complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed.

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

[6]The complaints of being subjected to detriments for making protected disclosures are not well-founded and are dismissed.

Conclusions

[1]The claimant brings complaints of disability discrimination and whistleblowing by having presented two claims to the Tribunal. The first claim was presented on 7 August 2020 and the second on 29 April 2021.

[2]Paragraphs 1-58 of claim 2 duplicate paragraphs 1-57 of claim 1, save that the first contains errors in the numbering of the detriments alleged by the claimant, and paragraph 24 of claim 1 was separated in two in claim 2. The fact that the parties were not able to agree and co-operate with one another to use the same numbering system is illustrative of the way in which the litigation has been conducted. Given the extensive case management issues that the Tribunal was required to deal with at the start of the hearing and given the amount of work that the claimant’s representatives were given to do to ensure that her witness statement was fit for purpose (which we discuss below), the Tribunal accommodated the use of the dual numbering system during the hearing. The parties provided us with a list of issues which contained a section setting out each disclosure according to the dual numbering system. For the purposes of this judgment and reasons, we have used the dual numbering system also.

[3]At a case management hearing on 27 July 2021, Employment Judge Rice Birchall dismissed all claims against the third respondent, Mr Massey, and all protected disclosure claims in claim 1, as these were out of time. There is consequently a gap in the factual narrative of this case between the alleged disclosures, which happened in the period 15 May 2019 to 14 February 2020, and the alleged detriments, which took place in the period 25 February 2021 to 2 April 2021.

[4]The first respondent (“R1”) is a large GP practice, comprising a number of surgeries located in and around Bury. It serves approximately 50,000 patients and was formed in July 2018 following the merger of six GP practices. It was the respondent’s unchallenged evidence that at the time of the merger, it was one of the largest mergers of GP practices undertaken nationally.

[5]The claimant began working with the respondents in 2017, when she was involved as a project manager in the formative stages of the merger. She has a background as a human resources manager and qualifications in the same. She was known to Mr Massey, the other non-clinical partner at the first respondent, from her work at Bury Primary Care Trust and the Clinical Commissioning Group when Mr Massey worked at the Minden practice, one of the practices to merge to become the first respondent, and he recommended her as a candidate. She was also friends with Mr Patel, the fifth respondent, outside work and he agreed to contact her. She was appointed as an independent contractor to work on the merger and carried out financial and legal due diligence and worked on the partnership agreement. She was then offered partnership at the first respondent, which she accepted in July 2018.

[6]She and Mr Massey were the only non-clinical partners in the first respondent. She was responsible for operations and the workforce. She was to manage the TUPE implications of the merger and was responsible for leading the individual branch managers at the surgeries. Mr Massey’s role was described by the claimant in these proceedings as the “Finance Director”. Mr Massey’s evidence was that this was used by the claimant to suggest that he should have more qualifications and experience than he did have. We accept that Mr Massey and the rest of the partnership relied heavily on the advice and expertise of a specialist accountant, Mr Pow, in relation to the partnership finances of the practice. We accept that this was known to the other partners at the time of the merger and thereafter. However, we also accept that Mr Massey was the non-clinical partner with responsibility for finance and business for R1 and that he had performed a similar role for the Minden partnership for a number of years before the merger. Mr De Vial, the second respondent, had been the managing partner of Minden prior to the merger and so had worked with Mr Massey for a long time. Case management and the list of issues

[7]These proceedings have a lengthy case history. The claimant presented two, almost identical claim forms, and there have been three case management preliminary hearings and a considerable amount of correspondence between the parties and the Tribunal. The claimant alleges that she made 17 protected disclosures, the first two of which have been withdrawn and are dismissed on withdrawal.

[8]The list of issues remained unagreed at the start of the hearing. This was something that we expressed frustration about, given that Employment Judge Tobin had impressed on the parties only on 26 January 2024 the need to assist the Tribunal in this regard with a clear and agreed list of issues.

[9]The list of issues took a considerable amount of Tribunal time to resolve during this hearing. The amended list of issues is attached to this judgment as an appendix. The claimant sought to prevent the respondents from relying on the defence to a claim under s15 Equality Act 2010 of a proportionate means of achieving a legitimate aim, as the specific legitimate aim had not been stated in the list of issues. This was allowed following the Tribunal hearing the respondents’ application, which was allowed on the basis of principles in Selkent v Moore that the prejudice to the respondents in not being allowed to expand on the basis of their defence greatly outweighed the prejudice to the claimant in the Tribunal considering it, particularly because the respondents had provided the expanded basis of the defence in a draft list of issues some weeks before the start of the final hearing, such that the claimant had advance notice of what it would be.

[10]There were a number of applications during the hearing, notably from the claimant for the introduction of privileged documents. For example, the claimant’s application on day 9 for evidence relating to Dr Hampson that the respondents said was privileged. The application took an hour to determine and was pursued by the claimant despite it being apparent from the outset that the documents requested were, in fact, privileged and the Tribunal also noting that the documents did not appear to assist the Tribunal in determining the claims. The Tribunal’s decision on this issue was that the documents requested were clearly subject to privilege and the claimant was not entitled to see these. Our reasoning on this issue is set out below, where it occurs in the findings of fact in chronological order. Observations on the conduct of the proceedings

[11]Despite best efforts of Judge to calm matters, this remained a very rancorous, illtempered and argumentative hearing throughout. The proceedings were punctuated by applications, objections and interruptions by counsel. The parties have been given the Tribunal’s decisions on these interlocutory matters as the proceedings progressed and should either party wish to be provided with a written record of the same, they may apply to the Tribunal to be provided with these. The interlocutory decisions that, in the Tribunal’s view, are necessary to understand the decision, are recorded in these reasons but others that were less meritorious are not. We have taken this decision mindful of the need for the parties to receive this reserved decision as promptly as possible and to avoid this judgment becoming prolix.

[12]We find that the claimant has allowed her personal dislike of Mr Massey, which subsequently was extended to all of the respondents, to cloud her decision-making in relation to this case. The Tribunal is not a forum for settling personal scores and is not to be weaponised to punish those against whom a party may hold grudges. We note the claimant’s intention to further pursue the respondents with a complaint to the General Medical Counsel in relation to what is described below as the “Minden” issue, an allegation that we concluded was entirely unfounded. We sincerely hope that in the light of the decision we have reached, that the claimant reconsiders her intention to do so.

[13]It is not submitted that the claimant lacks capacity to litigate, and therefore her mental health issues notwithstanding, she still has the capacity to receive and consider legal advice and respond to it. The claimant’s status as a disabled person does not mean that she is not required to conduct herself and her claim in a responsible and respectful manner. She has the capacity to understand her obligation (and indeed that of any party) to co-operate with the Tribunal and the other side, to act proportionately, avoid delay and save expense, as per the overriding objective in rule 2 of the Tribunal Rules of Procedure 2013. We do not accept that ignoring her conduct and the way in which these proceedings have been conducted on her behalf would be a reasonable adjustment, or something that is required by the Equal Treatment Bench Book. The purpose behind the making of reasonable adjustments to a hearing or the legal process more widely is to allow a disabled person to participate on an equal footing to those not so disabled. It is not to force the Tribunal or the other side to turn a blind eye to disruptive and unreasonable behaviour in the name of adjustments. This would, we find, do a great disservice to the overwhelming majority of Tribunal users with mental health disabilities who conduct themselves with respect, act in a proportionate manner and are mindful of the Tribunal’s duty to act in the overall interests of justice.

[14]The claimant did not always conduct herself in a manner that was respectful to the Tribunal or the respondents. When the claimant was sworn in as a witness and was being cross-examined by the respondents’ counsel, she was observed to frequently direct criticism at the respondents and their witnesses who were sitting at the back of the hearing room, including directly addressing them on several occasions and jabbing her finger at them instead of answering questions, turning her back on the Tribunal panel in order to do so. Such behaviour is, in the opinion of this Tribunal, not commonly observed in witnesses or parties, who are mostly aware of the need for respect in legal proceedings.

[15]The claimant produced a witness statement that was 1007 paragraphs and 143 pages long for this hearing. When the Tribunal attempted to read it in advance of the hearing starting, it was apparent that large sections of it were entirely irrelevant to the issues that the Tribunal had to decide and significant sections of it appeared to be subject to legal advice privilege and/or litigation privilege. For example, there were many dozens of paragraphs describing events that took place while the claimant was off on longterm sickness absence, detailing matters such as conversations she had with her solicitor during this time with regard to issuing proceedings. The Tribunal told the claimant at the start of the hearing that we would not read all of her witness statement as large sections of it were not relevant or disclosable. We estimated that reading her statement would on its own have taken an entire day of Tribunal time. The claimant told the Tribunal that she had not wanted to leave any details out.

[16]The claimant has been represented by solicitors and counsel throughout the proceedings. We can only assume that she has been consistently advised not to present such a witness statement as she did, but that she declined to take their advice. This is all the more notable given that the last preliminary hearing before this liability hearing, which was to determine the issue of whether a without prejudice conversation was tainted by unambiguous impropriety, had to be abandoned without determining the issue as the claimant had produced a witness statement that was 71 pages long in relation to that single issue. Employment Judge Tobin had declined to read that statement. The issue of the meeting on 27 February 2020 was therefore put off to this hearing to determine. The respondent’s counsel noted (and it is recorded in Employment Judge Tobin’s record of the preliminary hearing) that the respondent’s counsel regarded there to be an issue in respect of costs regarding the preliminary hearing, pending the Tribunal’s decision on this issue at this hearing.

[17]The Tribunal requested that the claimant’s legal representatives assist us by editing the unnecessary information out of the claimant’s witness statement. We allowed them the Tribunal’s second reading day, (day 2) in which to do so. They were able to reduce the statement to 38 pages, for which we were grateful.

[18]Despite the extensive evidence presented, much of the claimant’s evidence about the allegations themselves is in narrative form, broad-brush and unspecific. When challenged on an issue, she either changed her evidence to improve her answer, or she deflected the question by responding that she was “incredibly unwell”. Much of her witness statement consists of her comments about her own thoughts and feelings at the time, as opposed to statements of fact that would assist the Tribunal in its findings of fact. She committed little of her complaints to writing at the time, despite her background in human resources. What written records there are were not shared with the respondents at the time but are presented to the Tribunal as “notes to self”. Indeed, as part of an exploration of dispute resolution with Mr Massey, the claimant repeatedly expressed unease about committing anything to writing.

[19]This liability hearing had been allocated 11 days as a hearing on liability only. The parties were informed at the start of the hearing that only 10 days would be available, as the panel members were required to attend compulsory training on 19 March 2024. I originally expressed a view, along with Employment Judge Tobin, that this appeared to be an adequate listing in the circumstances. I still maintain that, had the Tribunal not experienced as many interruptions for objections, counter-objections and applications, we would have not needed so many deliberation days in chambers in addition to the listed days and the promulgation of the decision would not have been so delayed. I agree with Employment Judge Tobin that it was not necessary, and should not have been necessary, to allocate extra time to this case from the Tribunal’s hard-pressed resources. It is regrettable that this was required.

[20]Closing submissions were discussed with the parties’ counsel on day 8, which was a Friday, and we explored whether after the final day of evidence on day 9 we could proceed straight away at the start of day 10 to hear closing submissions. There was a suggestion from the claimant’s counsel that the Tribunal could adjourn and return some weeks later for closing submissions. The Tribunal noted that it would expect counsel to have been drafting closing submissions as the hearing was progressing and that it would not be a good use of Tribunal time to adjourn for a lengthy break to allow submissions to be finalised and return for an additional hearing day. The claimant’s counsel requested that closing statements be made at the end of day 10 to allow him time to revise his written submissions as he was cross-examining the respondents and their witnesses last. He was given the time he requested, and the respondents’ counsel went first with his closing submissions on day 10 at 3.30pm with the claimant’s counsel concluding the hearing with his closing submissions at 4.10pm on day 10.

[21]The Tribunal heard evidence from the claimant, her husband, Mr Massey, Mr de Vial, (hereafter “R2”), Ms Moyle (hereafter “R4”), Mr Patel (“R5”) and Dr Hampson. The Tribunal was grateful for the parties’ counsels’ extensive written closing submissions. Both counsel had made great efforts to assist the Tribunal to organise its decisionmaking.

[22]The parties have provided the Tribunal with extensive evidence about a wide range of issues, not all of which was relevant to the issues that we had to decide. Where this judgment and reasons is silent on matters, it is not because these were not considered, but that they were not sufficiently relevant to the matters in the list of issues. Preliminary determination - the issue of disability – dates of disability and knowledge of the respondents

[23]The respondents accept that the claimant is a disabled person by reason of major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder. The claimant relies on an expert medical report form Dr Allen, a consultant psychiatrist, dated 18 November 2021. The respondents do not dispute the contents of that report.

[24]However, a dispute remains as to the date from which she was disabled. It is the claimant’s case that she was disabled from mid-May 2019. The respondents’ case is that it is from 28 May 2020.

[25]Dr Allen’s report states, in relation to each of the claimant’s conditions that she displayed symptoms of:a. major depressive disorder from mid-May 2019 until the date of the report,

b. generalised anxiety disorder from mid-May 2019 to the date of the report

c. post-traumatic stress disorder from 27 February 2020 until the date of the report; and

d. that she had no major psychiatric or associated history prior to May 2019.

[26]In order to support their contention that the claimant was disabled from mid-May 2019 onwards within the meaning of the definition of in section 6 of the Equality Act 2010, the claimant relies on a paragraph in Dr Allen's report at paragraph 138 where he states “in my opinion she meets the definition of disabled in terms of section 6 of the Equality Act 2010 and has met these from May 2019 until the present day”.

[27]Dr Allen was asked an additional question, which he answered in a letter dated 10 March 2022. He was asked why he considered that the claimant was disabled from May 2019 onwards. His answer was “on the basis of the diagnosed conditions which have been extant for longer than 12 months”.

[28]In order for a claimant to establish that they are disabled within the scope of s6 Equality Act 2010, the adverse effect of their impairments must be “long term”. A person is not disabled until all parts of the test in s6 are met. The relevant point in time to be looked at by the Tribunal when evaluating whether the claimant is disabled under s. 6 is not the date of the hearing, but the time of the alleged discriminatory act (Cruickshank v Vaw Motorcast Ltd [2002] I.C.R. 729, All Answers Limited v Mr W(1) and Ms R (2),

2021 EWCA Civ 606

[29]In order to establish whether the effects of an impairment are “long term”, this must again be considered at the time of the discriminatory act and not at the time of the hearing. Schedule 1, part 1, para. 2 of the Equality Act 2010 defines an effect as “longterm” if: “(a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.”

[30]Dr Allen’s report clearly states that as at May 2019, the effects had not yet lasted for 12 months. His evidence is clear that the claimant had no major psychiatric or associated history prior to May 2019. To demonstrate that she was disabled at that point, there must be evidence before the Tribunal that the effects of her impairment were likely to last for at least 12 months, or likely to last for the rest of her life, as at May 2019. The report of Dr Allen does not assist the Tribunal with either of these issues. He assessed the claimant in November 2021, by which time the effects had lasted for more than 12 months.

[31]The evidence in Dr Allen’s report does not establish that the claimant was disabled from May 2019. The fact that Dr Allen has expressed an opinion that she was, does not decide the issue. That is a matter for the Tribunal to decide, on the basis of the evidence before us. His conclusion that she was disabled from the date the effects started is a misstatement of the test in section 6 of the Equality Act 2010, unless he were able to say that it was clear in May 2019 that the effects would last for 12 months, or the rest of the claimant’s life. There is no evidence in his report to support such an assertion.

[32]The claimant’s submissions to the Tribunal on this issue are found at paragraphs 129 and 130 of the closing submissions. They repeat Dr Allen’s evidence on the issue of “long term” as set out above, and make the following observation: “The respondents’ observation that it is up to the Tribunal and not to the medical experts to determine whether and if so when a person was disabled within the meaning of the legislation is an observation devoid of practical meeting in the absence of any evidence medical or otherwise to demonstrate that Dr Allen's conclusion is wrong. The only safe course of action is to adopt his position.

[33]This argument is misconceived. It is well-established that although there is frequently medical evidence from experts to assist a Tribunal on the question whether the claimant is “disabled”, that question is a matter for the Tribunal and not the expert to determine (per Elias J in Paterson v The Commissioner of Police of the Metropolis [2007] I.C.R. 1522, paragraph 30).

[34]The evidence of Dr Allen is that the effects of her impairments began in May 2019. There is no evidence that they began earlier than this. Indeed, he confirmed that they did not. The claimant also has not addressed the Tribunal on the issue of whether it could be said that the effects of the impairments were, when assessed at May 2019 (or indeed some subsequent date), likely to last for at least 12 months or longer. In this context, “likely” means “could well happen” (as per paragraph C3 of the Secretary of State’s Equality Act “Guidance on matters to be taken into account in determining questions relating to the definition of disability”, 2011.) She appears to rely entirely on the evidence in Dr Allen’s report to establish the “long term” element of the s6 definition of disability.

[35]The burden of proof is on a claimant to establish that she is disabled within the meaning of s6 EQA. She has been represented by a firm of solicitors since before she submitted her claims and has been represented by counsel and leading counsel at subsequent hearings. The respondents’ counsel has asserted what we consider to be the correct test for disability in his opening and closing statements, which is that Dr Allen’s report shows that the adverse effects of the impairments began on 28 May 2019 and lasted for 12 months thereafter, and consequently the claimant can only be said to be disabled as of 28 May 2020. The respondents conceded that at some point after May 2019 it may be said that it became “likely” that the effects would last for 12 months but that this was a matter for the Tribunal to decide. Given how critical this issue is to the success of the claimant’s disability discrimination claims, we find it surprising that evidence of this was not before us.

[36]However, even if we consider the medical and other evidence before the Tribunal, we do not find that this shows that the claimant’s effects were likely to last for 12 months or more any earlier than May 2020.

[37]The claimant was at work from May 2019 until her GP signed her off sick with a sick note recording “depression” on 11 September 2019. She had made references to the respondents in August 2019 about having found a mediation meeting in early August 2019 with Mr Massey to be extremely stressful and difficult. However, the claimant’s conduct at the time was also somewhat contradictory. For example, the claimant told R4 that she had been at a spa day on 6 September 2019 and they joked about drinking champagne. Furthermore, the claimant asked not to take any time off work, indeed it is one of her complaints of disability discrimination that she was “prevented from working in the office for four weeks” in September 2019. She instead asked for reduced duties to focus only on TUPE issues. The claimant also made a number of references in October 2019 to the “Minden” issue having made her “incredibly unwell” such as in her meeting with R4 on 8 October 2019 at the claimant’s house which the claimant covertly recorded.

[38]R5’s oral evidence to the Tribunal was that the claimant was unwell in September 2019, that she “struggling badly” with anxiety, tearfulness, stress, difficulty sleeping and difficulty concentrating. She was prescribed 100mg Sertraline, which R5 said was the standard dose for anxiety and depression. However, his evidence, which we accept, was that she had seemingly made a recovery by October and November 2019 and was back to normal.

[39]Indeed, R5’s evidence, which we accept, was that the claimant was regularly socialising with him and his wife from October 2019 to 27 February 2020. R5’s evidence, which was not challenged by the claimant was that “throughout this time and right up to the point of the meeting on 27 February 2020 there was still a lot of social contact between both of our families”. Between October and the end of 2019, he told the Tribunal that they and their families went to the theatre to see a musical, there was a Halloween party at either R5’s house or the claimant’s, he could not remember which, as well as what he described as “dinner, drinks and karaoke” at his house at Christmas. Furthermore, R5’s evidence which was not challenged by the claimant was that she continued to regularly socialise with his wife during this time and that the social contact only stopped after 27 February 2020. R5’s evidence was also that after she returned to work in October 2019, they worked productively together and therefore he did not consider that her issues persisted.

[40]She was said to have had depression since September 2019 by her GP Dr Zafar, in a letter he provided to the respondents dated 29 January 2020. However, even this only demonstrates either an effect lasting 5 months (from September 2019) or 9 months (if the evidence of Dr Allen is taken into account that her effects started in May 2019). Dr Zafar’s letter stated that the cause of the depression was the dispute at work, and that the mediation process would likely resolve the issue. Dr Zafar’s letter does not diagnose that the effects were likely to last over the long term.

[41]Therefore, taking all the evidence before the Tribunal about the effect of the claimant’s impairments from May 2019 onwards, and whether it was “likely” that they would last for 12 months or longer at that date, we find that this has not been established on the balance of probabilities. There was insufficient evidence to support a finding that it “could well happen” that between May 2019 and May 2020 that the effects would last for 12 months or more. The claimant’s mental health conditions only started in midMay 2019, according to Dr Allen. She cannot therefore have met the test of a disabled person in section 6 from that point onwards. We prefer the respondent’s submissions on this point, which are supported by the evidence, which is that she met the test of a disabled person 12 months from the date on which her symptoms started. She was therefore disabled from 28 May 2020.

[42]The Tribunal must then consider what the respondents knew about the claimant’s mental health issues and when. The claimant did not work for the respondents from February 2020. The respondents’ knowledge of the claimant’s mental health issues prior to that point was that she had a difficult period of time in September 2019, including some time off, but that from October 2019 onwards she returned to work and regular socialising outside work with R5 and his family. She made references to her work causing her stress and anxiety, but we do not accept that these were sufficient to establish constructive knowledge by the respondents of any long-term mental health condition, given that these references took place over the period from approximately July/August 2019 to February 2020. By the time the claimant became absent from work long-term on 27 February 2020, the respondents did not have constructive knowledge that she was likely to be disabled, or any actual knowledge of the same.

[43]There was a meeting between the parties on 27 February 2020 which we find was a without prejudice meeting, for the reasons set out below.

[44]In August 2020 the claimant issued proceedings in the Tribunal alleging, amongst other matters, that she was a disabled person. We find therefore that the respondents acquired knowledge of the claimant’s disability at the time they received the ET1 claim form in claim 1 from the Tribunal, which was August 2020.

[45]The claimant’s disability discrimination complaints which were said to occur before 28 May 2020 therefore all fail and are dismissed, because she was not a disabled person until that date. Furthermore, of the claims that require the respondents to have had knowledge of the disability, that is, those brought under s15 Equality Act and those for a failure to make reasonable adjustments, fail so far as they relate to matters which took place before August 2020.

[46]The claims of victimisation do not require the claimant to have been a disabled person at the relevant time and so these will be determined separately below. Findings of Fact Did the claimant make disclosures of “information” which she reasonably believed tended to show wrongdoing?

Findings of Fact

[47]It was the claimant’s case that she made 17 protected disclosures to the respondents between 15 May 2019 and 4 February 2020. The claimant accepts that the last disclosure, on 4 February 2020, was not made by her but her husband. This cannot be a disclosure of information by her as is required by s43A Employment Rights Act 1996, which states that a qualifying disclosure is one “which is made by a worker”. The claimant’s husband was not at any time a “worker” in relation to the respondents.

[48]During the hearing, the claimant withdrew her allegations about disclosures 1 and 2, which are dismissed on withdrawal. This was because the claimant accepted that she would not be able to establish the wrongdoing alleged by the disclosure, which was that Mr Massey’s behaviour was in breach of GMC (that is, General Medical Council) guidelines. As Mr Massey is not a doctor, the GMC guidelines did not apply to him. It was not clear whether disclosures 3 and 4, which were also about Mr Massey’s behaviour and a breach of GMC guidelines, were withdrawn. The claimant’s counsel’s closing submissions at paragraph 87 indicated that “PIDAs 1 to 4 are not pursued as PIDAs” but “the facts concerning PIDAs 1 to 4 are still directly relevant”. At paragraph 90 of the claimant’s closing submissions, these facts were said to be “directly relevant to PIDA 9b (the respondent’s PIDA 11).

[49]There are therefore 12 alleged protected disclosures for the Tribunal to consider, in the period from 7 August 2019 to 23 January 2020, numbered PIDA5-14 (according to the respondents) or numbered PIDA 5-7, 8a, 8b, 9a, 9b, 10-12 by the claimant.

[50]For a disclosure to qualify for protection, it is settled law that it must be a disclosure of “information”. The Tribunal must consider what the claimant said or wrote, and to whom. It is also settled law that to qualify for protection, the disclosures of information must be of matters that the claimant reasonably believed tended to show wrongdoing as set out in s43B Employment Rights Act 1996. The Tribunal therefore must consider whether the claimant believed the information tended to show wrongdoing, and if so, whether that belief was reasonable. The Tribunal must finally consider whether the claimant believed that the disclosure was made in the public interest. A: “Minden” issues and concealment of the same – Background and disclosures of information

[51]The circumstances of the first alleged disclosure (PIDA5) is in the category of disclosures about what has come to be described as the “Minden” issue and is an allegation that the respondents persistently misallocated NHS funding at R1’s site in Minden. The claimant confirmed during the course of the hearing that she considered this to be a fraud on the NHS by the respondents. There is an additional category of disclosures that allege that the issue of misallocation of NHS funding at Minden was being deliberately concealed by the respondents, which is dealt with below.

[52]The issue arose because of the merger of different GP practices with different working arrangements which R1’s Executive Partnership Board (“EPB”) sought to harmonise. R2, R4, R5, the claimant and Mr Massey were members of the EPB. The Tribunal heard evidence from R2, R4, R5 and Dr Hampson that the six different GP practices had different working patterns that reflected historic working arrangements and also the nature of the catchment area of each surgery.

[53]The Tribunal heard evidence which was not contested by the claimant that the Minden practice was located in Bury town centre whereas other practices were suburban or in smaller settlements. Minden operated an “open-door” surgery, where patients could at the time sit and wait to be seen whereas other practices only allowed attendance if an appointment had been allocated. The Minden “open” sessions were clinically intensive working days for the GPs who operated them. They would see up to 50 patients in an open session as opposed to 20 or so patients in a session with scheduled appointments. During open sessions, there would be little opportunity for non-clinical work such as administrative work, which would be done at other times.

[54]Each GP partner of R1 was expected to work for 9 sessions per week as a full-time partner, with part-time partner working hours being pro-rated. The respondent submitted that those 9 sessions were allocated as nominal units of measurement of working time. We accept that they were not rigidly defined in terms of hours per session or per week. It was up to each GP surgery to allocate work to each session. Some GPs, we accept, did research work during “sessions”, for example.

[55]However, in Minden, before and in the 12-18 months following the merger, the GPs worked only 8 formal “sessions” per week. The EPB, including the claimant, knew about this at the time of the merger, we find. The claimant was involved in due diligence and workforce management as a project manager before the merger and as a member of the EPB with responsibility for the same after the merger. We find that the EPB, including the claimant, knew about historic differences in working practices and considered the harmonisation an inevitable part of the work of the merger.

[56]We find that the issue of how to harmonise the working practices was discussed as early as December 2017 with Mr Pow, the accountant, and the claimant was copied in to the email chain discussing the issue. The issue was raised, on the evidence before us, by R2, who was senior partner at Minden at the time. He asked Mr Pow for advice on the basis that if “full time” was defined as 9 sessions per week, Minden partners’ income would reduce as “full time” had historically been 8 sessions per week at Minden. Mr Pow’s response was that “it doesn’t really matter how “sessions” are defined now, what matters is how they are defined going forward…and there has to be a similar definition across all sites albeit there may need to be some flexibility in the short term as people adapt”. R2 replied on 10 December 2017 that Minden partners working 8 sessions might have to accept that they work 9 sessions to maintain full time drawings and that he and Mr Massey would need to “explain/sell this further at Minden”.

[57]The claimant was responsible for finalising and circulating the new partnership deed for R1 and did so to the partners for signature on 28 January 2019. We find that she was fully aware at the time of the historic differences between the partners’ working practices and the need for harmonisation of the same, and aware of the difficulties involved in achieving this.

[58]It was the claimant’s evidence that Mr Massey was incompetent at his job and was aggressive towards her and others at R1 and that he used inappropriate language at work. Mr Massey’s evidence to the Tribunal was that he and the claimant had been close work colleagues during the lead up to the merger, but that in November/December 2018 she had become more distant and hostile towards him. His evidence, which we accept, was that she had asked him to join her in trying to secure a larger partnership share from the EPB. Mr Massey’s evidence was that she sought financial parity of share with the clinical partners, which he did not believe to be justified. He therefore declined, telling her that he considered it too early in the merger process to do so. He also told her that if they were to receive a larger share, other partners would find their shares reduced, which he considered unfair. He considered this to be the beginning of a souring in his working relationship with the claimant. We accept his evidence in this regard.

[59]The respondents sought to bring the Tribunal’s attention to the issue of the claimant’s personal finances, on the basis that this was a source of stress and pressure for her and a motivation for her to press for a greater partnership share. The Tribunal was directed to evidence that she had become tearful with R4 in May 2019 about the issue, as she was very stressed over an unexpected bill to repair her house roof, and that she had moved a child to private school. There was also evidence before us, which we accept, that the claimant had misunderstood the way in which her pension contribution would be deducted from her partnership share and had also misunderstood the calculation of the amount she would receive from her share in the partnership in early 2019.

[60]We also find on the basis of the evidence before us that the merger was complex and difficult to put into effect. We note the evidence of the respondents that the merger was one of the largest of its kind in the NHS at the time. We also note that each different GP practice would need to amend long-established ways of working to harmonise with the other practices, and that this would be difficult to put into practice and likely meet with resistance from partners.

[61]We find that there is clear evidence that the members of the EPB were having to take decisions without clear information, particularly in the area of the finances of R1. We accept Mr Massey’s evidence that GP partnership finances and the funding arrangements of the NHS are complex and that up to date and accurate financial information was not always available for the EPB to base decisions on.

[62]We find, on the balance of probabilities, that the claimant discovered over the course of this period of time, that the job was far more demanding and stressful than she expected it to be. For example, she was asked a question in cross-examination about having been asked to produce staff pay scales since the merger date in July 2018, but that by the time she went on long-term sickness absence in February 2020, these had still not been produced. Her answer to this question was that she had been given an “impossible task”. She said: “It was a TUPE merge…there were lots of people on different pay scales and it can’t be done immediately, if at all. The receptionists were all different and I couldn’t harmonise as I had no idea what our financial position was. It wasn’t a capability issue as I am used to working at board level.”

[63]She was asked about having tried to source an intelligent rostering platform for R1, but not having completed the task. It was put to her that this was within her HR remit. She disagreed and said that Mr Massey selected the product and was supposed to “get it in a state for how it would work and it didn’t”. She also said that she “wasn’t a workforce planner”. When it was put to her that a meeting was arranged with the provider of the platform on 13 June 2019 that she was due to attend, but that she did not turn up, she told the Tribunal “I was unwell on 12 June 2019. I suffered a significant mental episode”.

[64]Another example of the difficulties in her role was that the claimant was asked to recruit paramedics to R1. She was asked to issue job descriptions as part of the recruitment process. Her evidence was that she asked Mr Massey for an up-to-date picture of the finances of R1, so that she knew how much money was available for this recruitment exercise. Her evidence was that she did not know whether R1 could afford to hire the paramedics without that information. However, we accept R4’s evidence that the EPB had authorised the recruitment of the paramedics and that any problems with the affordability of the exercise would be the responsibility of the EPB and not the claimant individually.

[65]It is therefore difficult for the Tribunal to understand why the claimant needed the financial information from Mr Massey. It is the respondents’ case that she knew she did not need such information but demanded it in an attempt to deflect blame away from herself as she had not yet produced the job descriptions. It may also have been that she was concerned that as the partnership finances were under considerable pressure, that this may affect partnership drawings and therefore her own income.

[66]We therefore find that in late 2018 and the first half of 2019, the claimant was under pressure in her role and disclosed to the EPB that the role was not what she had expected it to be, and at the same time was discovering that her financial package was also not what she had expected it to be, at a time when she was under financial pressure in her personal life.

[67]The claimant had not expected, we find, to have to work so hard and with such uncertainty. She may also have struggled to accept that in a partnership she would not have the ability to control the expenses of the business in the same way that she was able to as a sole trader, despite her income being affected by such expenditure. We find that she became angry with Mr Massey when he told her not to get stressed. This was discussed between them in an exchange of text messages on 14 February 2019. “PM: Get the feeling there is an issue. Doesn’t feel nice at present and certainly different. If I have done something would rather you tell me. Got a jam packed day today unlikely to get home before 8 or 9 and rather stressful with Rock stuff too, so if you do agree a chat would be worthwhile then can prioritise it from tomorrow onwards. KF: Let’s chat when I get back from leave as last day today. I am just feeling like I am not being listened to by you at the moment and that my opinions on things don’t really matter as they don’t hold with what feel like your fixed views on certain things – particularly around the e-systems we want to introduce and how we go about this. Info I think the board should be aware of and also how we manage some of out people issues. And then when I tried to articulate some of this this week your final words were to tell me not to get stressed. This did piss me off I must admit. And to then have to go home to make way for clinical research was the final straw! All can be resolved with a conversation I’m sure when I get back.”

[68]We find that, starting in late 2018 and certainly by the end of May 2019, the appeal of being a member of R1 had worn off and the claimant was disgruntled and displeased with her role and her income from the partnership.

[69]However, rather than accepting that the role was not suitable for her, or compatible with the other areas of her life, or even something that she simply did not want to do any more, we find that she chose to blame Mr Massey for her difficulties at work. She did not want to acknowledge that her role as a partner in R1 was not suitable. She lived near several of the respondents and her children attended the same private school. She socialised with R4, and R5 and his family. We find that she did not want to give up her standing in that community by leaving R1. She chose to stay working at R1 but blamed her difficulties with the situation on Mr Massey instead.

[70]Mr Massey and the claimant had a conversation on the phone on 23 May 2019. Mr Massey’s evidence, which we accept, was that the claimant demanded financial information from him in order to progress the paramedic recruitment, and he told her that he did not have it and that it would likely not be available until the summer. He told her that she could still progress the job descriptions without it. He also told her that the government had issued a new contract, the value of which to R1 was not yet known. He told the Tribunal that such situations were not uncommon in primary care settings, which we accept.

[71]We find that the claimant’s disgruntlement with her situation in R1 as described above caused her to become hostile towards Mr Massey. She accepted in cross-examination that she said to him that he was the finance director and should know the information she had asked for. His evidence is that he responded “I am not the Financial Director, I am Paul Massey , someone who has been dealing with general practice finance and business for ten years and have done alright so far.” It is the claimant’s evidence that Mr Massey shouted these words at her. She went as far as to say on 6 August 2019, that he was so aggressive with her over the phone on 23 May that had they been in the same room, she would have feared for her safety. On the balance of probabilities, we find that the claimant was curt and demanding towards Mr Massey, and he responded with frustration and annoyance.

[72]We consider it to be a gross exaggeration for the claimant to allege that he was so aggressive with her that she would have feared for her safety had the conversation been face to face. The evidence before the Tribunal was that the claimant and Mr Massey had always had a close and friendly working relationship, with the claimant referring to him as her “work hubby” and referring to his house as “Tower HQ” due to the amount of time they spent working there. We accept that the conversation on 23 May 2019 was heated, but that both people were heated and frustrated in equal measure.

[73]The claimant has sought to introduce evidence of Mr Massey using swear words in work messages sent via Teams as evidence of his innate aggressiveness in the workplace. Where the messages also include examples of the claimant swearing, she seeks to distinguish between her use of foul language and Mr Massey’s by the fact that his language was directed at other people whereas hers was used for emphasis. We do not consider the evidence of the use of swear words and industrial language by either Mr Massey or the claimant to be anything other than evidence of a stressful and demanding work environment. There is no evidence before us that the claimant objected to Mr Massey’s language at the time or asked him to moderate it.

[74]Furthermore, we note that the claimant considered herself free to use swear words while answering questions under oath during the hearing. When describing the actions of Mr Massey, she volunteered the information that “he just pissed me off”. The respondents’ counsel drew the Tribunal’s attention to this at the time and as part of his closing submissions, but this was not necessary. We had already noted with some surprise the claimant’s relaxed attitude to swearing while giving her evidence, given the considerable emphasis placed on Mr Massey’s swearing and the claimant’s alleged objections to it which form part of her claim. The claimant’s closing submissions sought to distinguish between her swearing during the hearing and the language used by Mr Massey, which was stronger and more frequently used. We accept that the severity and frequency of the language was greater when used by Mr Massey, but that it was done in the context of private conversations between close colleagues. There is also no evidence that it offended the claimant at the time.

[75]Therefore, we do not accept that Mr Massey behaved aggressively towards the claimant or others in the workplace such that she was fearful for her safety at any point. Their conversation on 23 May 2019 was heated and terse but Mr Massey was not inappropriate or unacceptably aggressive.

[76]Over the weeks that followed, the claimant’s relationship with Mr Massey deteriorated. We find that this caused quite some difficulties for the respondents. The merger was already putting the respondents under quite some pressure and now, two members of the EPB were barely on speaking terms.

[77]Also during this period, we find evidence that the claimant’s effectiveness at work was considerably reduced. It was put to her in cross-examination that “you spent more time looking into Mr Massey’s role than doing your own job”. Her reply was, “I did”. Her reason for this was that she had become aware of the misallocation of NHS funds to Minden partners. However, as we found above, this issue had been before the EPB since before the merger and was raised with EPB members, including the claimant, by R2 as early as December 2017. This was not a new issue. However, whatever the claimant’s alleged reason for not doing her own job sufficiently, we find that she did not work effectively from this time onwards. This further increased Mr Massey’s frustration towards her and further undermined their relationship.

[78]R4’s evidence, which we accept, was that on 23 July 2019 R4 met with Mr Massey and R2 at their request, and during the meeting they told her about the concerns they had about the claimant’s performance. They mentioned that there was no workforce plan in place, which was her responsibility, that she did not provide them with the necessary support to enable them to complete any tasks, and also that the branch manager at Minden, who was managed by the claimant, had raised concerns about a lack of support from her. They also mentioned that it was mentioned to them that the claimant had to use Google to look up HR related issues when asked for support. We accept that this would have raised legitimate concerns about the claimant’s competence and professionalism.

[79]On 31 July 2019, the claimant had a meeting with R2 and R4, after the claimant returned from her holiday. In cross examination it was put to R4 that the claimant disclosed to them both that she had been intimidated by Mr Massey and disclosed the impact it had had on her mental health. The claimant’s particulars of claim at paragraph 17 put the matter as that she advised R2 and R4 of the “significant pressure she was under which was impacting on her health” and also that she felt “intimated by” Mr Massey and that this intimidation was impacting also on her health. She also said that she considered Mr Massey lacked competence and that he was aggressive towards her and her colleagues, and that she told R2 and R4 of the phone call on 23 May, and that a branch manager wanted to raise a grievance against Mr Massey because of his “abusive and aggressive behaviour”.

[80]R4’s evidence under cross-examination was that this had not happened that during the meeting. She said that what had been discussed was Mr Massey’s lack of perceived capability as finance director and that this was one of many such conversations that happened between her and the claimant about Mr Massey’s lack of competence. It was put to her that the claimant told her that she was under pressure. R4 replied “we were all under pressure it wouldn't have surprised me if she'd said that she was under pressure.”

[81]We accept that at the time the merger was somewhat uncharted territory and was proving difficult to implement. We find that the practices appear to have merged without any clear agreed framework for future operations and the frameworks were being worked out retrospectively after the merger. For this to go smoothly, a degree of strategic expertise and experience was required. It was unclear who of the partners was able to provide that strategic expertise and we find that there appeared to be a lack of clarity around job role. What the partnership particularly needed, we find, was cooperation between the claimant and Mr Massey to work together to work this out as they went along through the process. The claimant was not prepared to do that. On the balance of probabilities we find that the difficulties would have resolved themselves a period after the merger and we accept the respondents’ evidence that this is what has happened subsequently.

[82]On the balance of probabilities, we accept that on 31 July 2019, the claimant told R2 and R4 that she was under significant pressure and that this was having an impact on her mental health. We find that it was understandable that the claimant was feeling under a lot of pressure and that her role at R1 was difficult and uncertain. We accept that this had an impact on her mental health. We also accept that the claimant told R2 and R4 that she considered Mr Massey to lack the skills and competence to undertake his role. We accept that she said this and note R4’s evidence that she raised this issue frequently. She sought to blame him for the pressure she was under. We also accept that she told R2 and R4 that she felt intimidated by him. Mr Massey was less affected by the pressure of the merger than she was, and we find his experience in general practice and financial management meant that he was more comfortable with his role than she was. We find that she feared that she would be exposed for the difficulties she was having with her role, and she knew that if anyone was in a position to expose her in such a way, it would be Mr Massey as they worked very closely together. As a result, we find that she sought to undermine his reputation amongst the EPB.

[83]The EPB met on 6 August 2019 for a Board Development session with Ms Rubenstein, an external facilitator. Due to the difficulties between the claimant and Mr Massey, part of the session was allocated to a private mediated conversation between them, facilitated by Ms Rubenstein. The facilitated conversation was not a success. We find that this was largely because the claimant made the allegation to Ms Rubenstein and Mr Massey that he was so aggressive towards her during the conversation on 23 May 2019 that she had feared for her “personal safety” or would have been so fearful if they had been in the same room together. It is the respondents’ contention that this allegation destroyed what was left of their relationship. We accept Mr Massey’s evidence that he considered this to be an appalling allegation to make. He considered it to be personally highly offensive and also he considered it to be an attempt by the claimant to destroy his reputation at work.

[84]The claimant would, we find, have known that this would only increase tension and hostility between her and Mr Massey. Given that the session with Ms Rubenstein was meant to be a mediation to allow them to work better together in future, this was a particularly destructive thing to say. This act had the effect of destroying any trust between them, we find. We note that the mediation meeting was happening several months after the telephone conversation, but that the claimant was only mentioning it for the first time in the mediation. She did not formally complain about the conversation to Mr Massey at the time, or in the weeks immediately afterwards, which given their previous close relationship, we find that she could have done if she had genuinely considered him to have overstepped a boundary with his tone towards her over the telephone and had she genuinely wished to resolve the issue in a professional manner.

[85]The claimant complains that Mr Massey “sniggered”, laughed and interrupted her during their conversation with Ms Rubeinstein. It is Mr Massey’s evidence that she told Ms Rubenstein that he was laughing, but that Ms Rubenstein corrected her about this. We find, on the basis of his answers under cross-examination, that Mr Massey reacted with incredulity at the allegations being made and will have immediately realised that the claimant was acting destructively towards him at the time. The mediation session was brought to a close by Ms Rubenstein without progress having been made.

[86]As part of these proceedings, the claimant alleged for the first time that Mr Massey also kicked her on the way into the mediation session while climbing the stairs. Her pleaded case is that she was “unable to say whether this was deliberate or accidental, but avers that [Mr Massey] became immediately aware of his actions and yet failed to apologise to the claimant; this caused the claimant to fear for her safety and her mental distress worsened.” The claimant’s husband, Mr Foster, gave evidence that the claimant had told him that Mr Massey had kicked her “in frustration”, which he accepted was an allegation that he had kicked her deliberately. The claimant told none of the respondents or Mr Massey about this allegation until it was raised in her claim form. The respondents allege that this allegation is “wholly false”.

[87]We find that this allegation is part of a pattern of behaviour by the claimant towards Mr Massey, borne out of her frustration and displeasure at finding herself in an unexpectedly stressful, demanding and (by her assessment) underpaid job and also in an attempt to undermine him, for the reasons set out above.

[88]However, it is a remarkably destructive course of action to take and is at odds with the claimant’s allegedly strong wish, expressed on numerous occasions elsewhere in the evidence before the Tribunal, that she wished to continue working for R1, and ensure the success of the partnership and that she was devastated when she was no longer able to do so.

[89]We find that it was naïve to expect, if indeed she did do so, that she would be able to push Mr Massey out of the partnership or undermine him to the extent that she was able to pin blame on him for failings in the administration of the practice. Her course of action was a high-risk strategy. She was setting herself up in direct opposition and conflict with Mr Massey. Consequently, if the EPB chose to believe him over her, or to retain him over her, she would lose her job. We find that the claimant knew this but took a decision to try to do so nonetheless. When she met with Dr Hampson later in 2019, his evidence, which we accept, was that she told him that she had to “win” against Mr Massey. Given that the claimant and her family, including her children, were also friends with other members of the EPB and their families, including attending the same school, the riskiness of the claimant’s course of action was all the more remarkable. Disclosure Number 5

[90]The first disclosure of information for the Tribunal to consider was to R5 on 7 August 2019, the day after the failed mediation at the Board Development session, when they had a long telephone call. It is not disputed that the claimant was at the time good friends with R5’s wife, who was also a doctor. Their families socialised regularly together during this period. The claimant has, we accept, known R5 since 2012 when they were seconded to the same team setting up the Bury Clinical Commissioning Group. They subsequently also had children at the same school. Therefore the context of PIDA5 is that the claimant was discussing matters with someone who was a colleague and also a friend.

[91]After the board development session, the claimant called R5 in the evening of the following day. R5’s evidence was that the claimant wanted to talk about the board development session and said that her mental health was struggling. R5’s evidence, which we accept, was that he suggested she took some time off work but that she was not keen to do this. R5 also suggested that she speak to his wife for support, as they were friends, but the claimant chose to contact Dr John Hampson who had been a salaried partner but was now semi-retired. R5’s evidence to the Tribunal was that the EPB as a whole were all stressed, as the difficulties in the relationship between the claimant and Mr Massey made it a difficult situation, and there was nothing to mark the claimant out as suffering any worse than anyone else.

[92]During the telephone call the claimant told R5 that she believed that the partners at Minden were not working their full hours or were working fewer sessions than they were paid for. She said that she didn't feel it was fair on the rest of the partnership. We note that this disclosure was not of fraud, or a misallocation of NHS funds, but on the basis of a perceived unfairness in workload allocation.

[93]R5’s evidence, which we accept, was that R1 and the rest of the partners had always been aware of historic differences in how the different individual GP practices operated with different arrangements in place for holiday, study leave and how the working day operated, as well as differences in staffing and patient demand and differences in earnings.

[94]When faced with the issue as to how this should be managed as a result of the merger, his evidence to the Tribunal was that all partners received the same payment for their partnership drawings straight away, but the partnership itself underwent a gradual process of harmonising the working practices over a two-year period. His evidence was that all partners accepted that in the short term there would be some variations that would have to be tolerated and that this was accepted by the whole partnership including the claimant, that she would have been fully aware of the issue as it was discussed numerous times during the set-up phase of R1. His evidence, which we accept, was that the claimant was present at the practice meeting where the decision was taken. The accountant Mr Pow was also involved in these discussions back to December 2017 and was present at the partners meeting where this was discussed.

[95]We therefore find, on the balance of probabilities, that the claimant knew, or ought reasonably to have known, that the differences in working practices at Minden were known to the partners from the outset and were part of a transition to a unified working practice that would take time to complete. We also accept R2’s evidence that when the system “AskMyGP” was implemented in May and June 2020, these differences were rectified. We do not accept that the claimant disclosed on this occasion that she considered this different allocation of funding to amount to a fraud on the NHS.

[96]As part of her complaints of whistleblowing, the claimant says to this Tribunal that she was asked to conceal this alleged fraud. The claimant’s case is that she tried to raise this internally (that is, within the partnership) on the occasions pleaded, but was not listened to and was subsequently subjected to detriments and dismissed as a result. The Tribunal asked the claimant if she had at any stage raised this issue externally, to the NHS itself, as we are aware that there is a dedicated department within the NHS for whistleblowers to contact. We also explored with the claimant the fact that, as a partner, she would likely have been jointly liable with other partners for any fraud. There may have been financial consequences for her as a partner, as (on her own account) she was effectively allowing the partnership to continue to perpetrate the fraud by not speaking out to an external body. We also note that this apparent fraud had been going on (and known to the claimant) since December 2017, and certainly since the formation of R1 and the signing of the partnership deed in 2018, but she said nothing until after her dispute with Mr Massey escalated in August 2019. The claimant is not inexperienced in relation to how the NHS works, as she was a senior HR professional in NHS bodies including a clinical commissioning group for many years before joining R1. We find that she would have been very well placed to understand this issue and to understand the consequences of not reporting such a fraud, including for her in a personal capacity.

[97]We also do not accept, on the basis of the medical evidence before us, that the claimant was affected in her clarity of thought at this time by any of the mental illnesses that she was subsequently diagnosed with by Dr Allen. She was not, we find, a disabled person at this period of time. We accept that she would have been under quite some stress, but partly this was as a result of her dispute with Mr Massey and the understandable stresses of the merger and management of R1. We do not accept that her reasoning or clarity of mind was affected so as to undermine her ability to think logically or rationally about the Minden issue.

[98]The nature of the alleged fraud on the NHS caused by the supposed misallocation of funds to partners, namely that Minden partners were being allocated a full-time partnership drawing (or the pro-rata equivalent) despite only working 8 sessions per week instead of 9. The respondents’ witnesses, including Dr Hampson, R2 and R5, gave evidence that the NHS no longer paid GP practises per “session”. Dr Hampson’s evidence was that this had not been done since the system changed in 1990. Since then, the Tribunal understands, it has been the case that the NHS pays practices according to a number of different factors, including the number of patients registered, and something called a “QOF” payment, which was partly based on performance and also on individual services such as injections administered. Each individual practice therefore has considerable discretion as to how money is spent within the practice, including in relation to payments to partners. This also gives individual practices considerable discretion as to how and when it sees patients, as practices are not tied to providing a fixed number of “sessions” of a fixed duration. We accept that Minden used this to provide the lengthy open access sessions for patients, which was considered to be appropriate due to it being a busy town centre practice. These differences led the Minden sessions to be described in the contemporaneous evidence as “compressed” sessions, indicative of their intensity. Notably, there is evidence that the claimant also used the term “compressed” or “compressor” in relation to those working at Minden. The claimant herself sent the following message to R2 about staffing issues on 4 March 2019, repeating Karen’s (a practice manager) suggestion that a GP could work at the Spring Lane surgery (“TFHSL”): “Karen come up with solution for Marc chapman to do regular Monday aft at TFHSL (not next week though) as TOIL/paid and for him to take whole of Thursday’s off - not great from a 9 session point of view but believe Marc is a ‘true’ session compressor ..... ?”

[99]We find that this shows that in 2019 the claimant knew that there was flexibility in the number of sessions that GPs worked post-merger, that some GPs who worked “compressed” sessions did not work every day of the week (“for him to take whole of Thursdays off”) and that this did not look particularly good in terms of harmonising working practices but that the differences were justified (“not great from a 9 session point of view but believe Marc is a ‘true’ session compressor”). This was put to the claimant in cross-examination. She did not accept that this email indicated that she was happy with the arrangements, but that she was reflecting the arrangements in the practice that she had been asked to go along with. However, we find that whether she was happy with it or not, she knew the detail about how it was being flexibly implemented in R1 from before her first alleged disclosure.

[100]We accept the respondents’ evidence that although the GPs at Minden were only timetabled for 8 sessions, that they would do administrative work outside of those sessions, including working from home, which gave them an attractive amount of flexibility. However, we accept that this was benefit that provided balance given the intensive and lengthy open access surgeries that the practice also provided.

[101]The claimant’s evidence is also that she was asked to conceal the same from the EPB (and the wider partnership). We accept that R2 and Mr Massey had originally assumed responsibility, along with Mr Pow the accountant, for managing the issue with the Minden partners and that other members of the EPB such as R4 and R5 had not been involved in these specific negotiations. However, they were aware of the issue as it had been discussed during the formation of R1 in some detail. We accept that the claimant was told not to discuss this with the wider partnership. However, we find that this was done on the basis both that the EPB did not want to raise this issue at that time with the wider partnership in the way the claimant wished to raise it, in that they felt it was not politically appropriate, and also that as time progressed she was misrepresenting the issue as one of illegality (such as in her discussions with Dr Hampson).

[102]We therefore find that the claimant ought reasonably to have known that NHS funds were not being misallocated at Minden. She ought reasonably to have known that GPs were no longer paid per session by the NHS and that therefore the differences in working practices at Minden in the something abouttransition period did not amount to fraud on the NHS. She was extensively involved in the partnership discussions about the same, over a lengthy period of time. We therefore find that, even if the claimant had from August 2019 onwards convinced herself that her disclosures about Minden tended to show the breach of a legal obligation and concealment of the same, that this was not a reasonable belief for her to hold in the circumstances.

[103]During her lengthy telephone call with R5, his evidence was that they discussed the issue about Minden and the reason why there were differences in working patterns across R1. His evidence, which we accept, was that he thought at the time that the claimant genuinely believed that Minden partners were being paid for 9 sessions while only working for 8 sessions and that they therefore had a lower workload than others. He said that he took her allegation seriously and agreed to look into it, because he agreed with her that it appeared unfair. He also told the Tribunal that the issue of workload allocation was a contentious one at the time, as some R1 colleagues at other sites appeared to be working harder than those at Minden, who appeared to be going home earlier. While we accept that R5 thought the claimant’s belief was genuinely held at the time and agreed to investigate it, in the context of the claimant’s overall knowledge of the circumstances of the merger and the need for a transition period, we do not accept that she herself genuinely or reasonably believed this to be the case. She was, in her role, much more intimately involved in the matter than R5 was and had greater knowledge of the issue than he did at the time.

[104]R5’s evidence, which we accept, was that he subsequently spoke to R2 about the issue and told the claimant to leave him to deal with the matter, and that he would decide what the right time was to deal with the various differences that were a result of the merger of the different working practices. His evidence under cross examination was that the EPB did not think that the compressed sessions were an issue and that there were a number of other issues involved that R1 were not ready to deal with yet, having only just formed the amalgamated partnership. R5 told the Tribunal “we were not ready to deal with the minutiae at the time”. However, even though R5 was a longstanding personal friend of the claimant, she did not follow his advice to let him deal with it at a time he thought would be most suitable.

[105]The claimant also alleges that she did a protected act during this conversation, which was that she(1) explained how distressed she was about the incident at the board development meeting the day before,

(2) referred to her failing mental health and

(3) “pleaded” for him to take steps to “stop Mr Massey’s bullying and aggressive conduct”. We accept that the claimant referred to her distress and struggles with her mental health and she will have referred to the difficulties in her relationship with Mr Massey, as they all understood what the basis of the breakdown in her relationship was with him, including the allegations she made about him that day.

[106]The claimant also spoke with R4 the following day, on 8 August 2019. R4’s evidence was that the claimant was very tearful at the time and had been during the board development session. R4’s evidence to the Tribunal was that at the time, the claimant was not able to balance her work and personal stresses and, for example, was going running for long periods of time. R4’s evidence was that the claimant put a lot of physical demands on herself and that R4 was concerned by her behaviour at the time. However, we accept the evidence of R4 that all of the EPB were struggling with the demands of the merger at the time. The claimant says that this conversation with R4 was a protected act for the purposes of her victimisation complaints.

[107]Mr Massey had also contacted R4 on 8 August 2019, shortly after the failed board development session to inform her that he was considering leaving his job at R1 because of the claimant. He told her that “I am meeting Simon today at 11.30 and will most likely be confirming to him that I have chosen to leave. I cannot see a future for me with Tower where Kate is in it. She offers no value and from what I have witnessed and been put through over the last 6 months she is evil and manipulative…I can’t risk her accusing me of being violent or threatening…She is continuing as if nothing has happened where I am struggling with this.”

[108]During August 2019, R2, R4 and R5 liaised with the claimant and Mr Massey to try to establish a short-term solution to the dispute between them, and to explore options for a solution to the dispute between them. Both were recommended not to meet face to face without the presence of another partner and also to only communicate in written form, that is, by email or Teams message. The claimant alleges that the respondents took no steps to ensure she was not in contact with Mr Massey in the workplace, but we do not accept that this was the case. We find that they did take considerable steps to keep them both separate.

[109]As a result of the conversations both of them had with the respondents, by the time the claimant went on holiday towards the end of August, it became clear that the claimant wanted to mediate with Mr Massey and Mr Massey wanted a “process that reviewed historic issues and perhaps explored those”, as he described it in an email dated 23 August 2019. The claimant says that between 7 and 28 August, she “advised” R2, R4 and R5 of her “significant mental distress” and “pleaded with them to intervene” and that this was a protected act for the purposes of her victimisation complaints under the Equality Act 2010. She specifically referred to a lengthy message sent to R4 on 14 August 2019 as being a protected act. Having carefully considered this message at page 464 of the bundle, we can find nothing in there, however obliquely referred to, that could be said to be done in connection with the disability provisions of the Equality Act 2010. Indeed, far from alleging that the respondents had, for example, put her mental health at risk or failed to help her, she wrote: “…one of the things that has really struck a chord with me is that you, Kiran and Simon have all drawn upon your professional roles as GPs to provide me with care and support and whilst this wasn't in any way unexpected, it would be remiss of me to not acknowledge this and let you know that I am both thankful and grateful.”

[110]In the evening of 23 August 2019, Mr Massey sent a lengthy email to R2, R4 and R5, which raised a grievance against the claimant. The email was sent in addition to R2, R4 and R5 having received (earlier in August) a complaint against the claimant from three of R1’s four branch managers, about her conduct towards them. This was described by Mr Massey as the branch managers having “whistleblown” and the claimant having been informed about this, but we do not accept that the partners made it clear to the claimant at the time that a complaint about her had been made in those terms. A formal written complaint about the claimant was not submitted to the respondents until December 2019 and it was not until February 2020 that she was informed that a complaint had been made about her, and the claimant assumed that it was from Mr Massey and not the branch managers.

[111]Mr Massey’s email of 23 August is written in very strong terms. He accuses the claimant of unprofessional and destructive behaviour and attributes this to her having wanted a greater share of the partnership profits, and him having refused to support her in seeking this. He attributes this to the start of the breakdown in their relationship. He also wrote: “If Kate reacts in an unprofessional, un-likeminded manner, breaching many of our company values and her only reason for this is that she is worried about specific areas of business that she is not responsible for, then as far as I am concerned that is not an acceptable behaviour from a partner, let alone a member of our executive board. In general practice and in business we often deal with uncertainty and operate in areas of grey, over the last 12 - 18 months many of us have been under tremendous pressure and have been and continue to do things we haven’t done before. Even if there were mistakes or serious errors in judgement, (which I don’t believe there has been) then her approach to this is unacceptable and something I feel should be challenged. [….] I see my grievance against Kate’s claims on 6th August to myself and Shelly that I am aggressive and a “threat to her personal safety” as a separate and very serious matter to the matters raised under the whistleblowing.”

[112]Despite this, the claimant and Mr Massey continued to work for R1 for a number of months, while minimising their contact with one another. The claimant made a number of what she now alleges were protected disclosures to the respondents in relation to the Minden issue and others. The respondents attempted to initiate a process of reconciliation between the claimant and Mr Massey, but this was ultimately not successful, as will be described below. We find that the respondents, far from punishing the claimant or subjecting her to detriments, took a very patient and evenhanded approach to the dispute, given the seriousness of Mr Massey’s concerns and the concerns raised by the branch managers about the claimant. Disclosure 6

[113]The claimant alleges that she made a number of other protected disclosures to the respondents in relation to this issue about misallocation of funds at Minden. The next one was to R4 on 8 October 2019. The claimant invited R4 to her house for lunch, during the claimant’s period of sickness absence of approximately four weeks. Their conversation was covertly recorded by the claimant on her mobile phone. A transcript of a short section of their conversation was before the Tribunal in evidence. R4 accepted that the transcript was accurate. We note that the transcript contains no disclosures about funds, payments, or misallocation of funds, or fraud.

[114]We accept that the claimant did tell R4 that there were concerns over how many sessions the Minden partners had been working and that R2 and Mr Massey had told her not to mention this to the EPB, of which R4 was a member. We have considered whether it was reasonable for the claimant to still believe that this showed breach of a legal obligation, or unlawful concealment. We find that after having spoken to and been given reassurance from R5, she cannot reasonably have believed that this was still an issue of a breach of a legal obligation, fraud or concealment. We find that the claimant was trying to malign R2 and Mr Massey by this disclosure. We accept that R4, having discussed the issue with R2, told the claimant not to discuss the issue further as the claimant’s understanding was incorrect, and the EPB did not want misinformation being disseminated.

[115]The claimant alleges that the disclosure of this information, and her concerns about it, “made me incredibly unwell” at this time, and she was absent for 4 weeks at this point. However, we accept that by the end of October 2019 she had recovered and was at a party with R5 and his family for Halloween, and at about the same time they went to see a musical together. Disclosure 9/8b

[116]PIDA 9/8b was alleged to have been made during a telephone call to R4 on 19 December 2019, about the issue of Minden misallocation of funds and the concealment of the same. Given the amount of information that the claimant had received by way of explanation of this issue, there cannot by this stage have been any reasonable or genuine belief that this issue indicated either a breach of a legal obligation and/or an ongoing concealment of the same.

[117]The claimant alleges that on 19 December 2019 she spoke to R4 and did a protected act for the purposes of her victimisation complaints. Her allegation is that she said that “she desperately needed a resolution to the ongoing issues with Mr Massey in view of his antagonistic behaviour and that her mental health could not take much more.” There are email and Teams messages between the claimant and R4 from 11 December to 18 December in which the claimant refers to the difficulties in communicating with Mr Massey due to the lack of a resolution and alludes to the fact that this is stressful, but nowhere in those messages (some of which were private between the claimant and R4) does the claimant make any disclosures in such strong terms. On the balance of probabilities, we find that if Mr Massey and the claimant’s mental health was discussed on 19 December 2019, there is nothing from which we could conclude that it was in the heightened terms described by the claimant in her particulars of claim.

[118]In December, R2, R4 and Mr Massey received a collective grievance from all bar one of R1’s branch managers about the claimant. The document is anonymous but we find that it was clear to the respondents who the authors were. They indicated on the face of the document that “this is in accordance with the whistleblowing policy” and that “we do have a few worries/concerns over who is going to read these issues and the backlash from it, however something needs to change”. Given the perilous state of the working relationship between the claimant and the rest of the partnership and the ongoing attempts to mediate between her and Mr Massey, the respondents chose not to notify the claimant that this grievance had been received.

[119]The grievance document contained a list of 20 specific complaints against the claimant. Broadly they cover the alleged lack of action taken by the claimant in her role, and the impact it had on their ability to carry out their roles. For example, the first complaint was “when being asked a HR related question, Kate refers to Google and gives no immediate response.” The second complaint states “does not deal with matters according to our policies/disciplinary procedures. It is felt that Kate is incapable of dealing with staff members with sensitive issues. She would rather the issue just disappear”.

[120]The claimant also alleges that on 9 January 2020, she “pleaded” with R2 and R4 to bring matters to an amicable resolution and referred to her failing mental health. We accept that she referred to her stress levels and increase in her medication at the meeting she had with them. Disclosure 11/9b

[121]The claimant had a meeting with R4 on 28 January 2020, which she alleges was a repeat of her disclosure (as PIDA9b/11) of both the Minden issues and her concerns about their ongoing concealment. We do not find that the claimant can have had any genuine or reasonable belief in either of those alleged breaches by this stage in the process, having had explanations from so many different individuals as to why the “Minden” issue arose and why it was not appropriate for her to disseminate her beliefs about the issue more widely.

[122]In a note to herself following the meeting on 28 January 2020, the claimant listed several concerns she had shared with R4. They all relate to Mr Massey, and the last note states “50k pay rise”. This supports the respondents’ submission and our earlier findings of fact that the claimant was paying far less attention to her own role than she should have done, due to being preoccupied with Mr Massey’s. Disclosure 12/10

[123]The claimant’s next alleged disclosure (PIDA 12/10) on this issue was on 3 February 2020 to Dr Hampson. They had met once before on 19 November 2019, and Dr Hampson’s evidence was that she had issues with the partnership accounts and told him that she believed that things should be done differently by Mr Massey. He said that she felt better qualified for the role than Mr Massey as she had worked at Barclays Bank previously, and in the clinical commissioning group. Dr Hampson had received an email on 18 November 2019 sent to all R1 partners by R2, providing them with information about the claimant and Mr Massey’s difficulties with their working relationship and the EPB’s attempts to arrange some form of mediation or arbitration. Dr Hampson’s evidence was that he had “thought she just wanted to have a chat”. When she visited him again on 3 February 2020, she told him about the Minden issue and the concealment of the same. Dr Hampson’s evidence to the Tribunal was: “I accepted it wasn’t a fraud of NHS money, without reference to Dr Patel. It was absolutely clear it wasn’t a fraudulent matter. On the basis of what [the claimant] said to me, I concluded it wasn’t a fraud on the NHS and I explained that to her at the time. I knew this because of my past involvement in partnership finances. Prior to 1990 this was an issue, as GPs had to work certain sessions or money was withdrawn. Since then, it was never specified how many sessions GPs needed to work in order to receive payment. During our second meeting [on 3 February] I discussed that this was a matter for the partners’ discretion, and I explained this to her.”

[124]Given the amount of information that the claimant had received by way of explanation of this issue, there cannot by this stage have been any no reasonable or genuine belief that this issue indicated either a breach of a legal obligation and/or an ongoing concealment of the same. Disclosure 13/11

[125]The claimant alleged in her grounds of complaint that she sent a further text message to R4 on 4 February 2020 (PIDA 13/11) repeating the Minden disclosures. However, there is no evidence of any such text message having been sent to R4 by the claimant raising any of these issues on 4 February 2020 and under crossexamination and with the assistance of her legal advisors the claimant was unable to locate the same. Disclosures relating to Mr Massey’s behaviour and the respondents’ failure to deal with the same

[126]It is the claimant’s case that as a result of making protected disclosures, she suffered aggressive behaviour from Mr Massey and the respondents’ failed to resolve her workplace issues with him and prevent her being victimised. These were reported to the respondents’, on the claimant’s case, as PIDAs 7, 8(8a), 10 (9a), 11 and 12. We find on the balance of probabilities that, as the claimant and Mr Massey were at pains to avoid one another in the workplace and had been instructed not to meet face to face without another partner present, it was highly unlikely that the claimant had encountered him during this time so as to have suffered aggressive behaviour, although it is clear that their relationship was highly strained during this time. Disclosure 7

[127]PIDA7 was said to have been disclosed orally to R2 on 14 November 2019. R2’s evidence was that, had the claimant discussed aggressive behaviour with him, he would have raised this with R4 and R5 and he did not. There is no contemporaneous record of this having been raised by the claimant. She is an HR professional and, we find, would have known that such a serious issue ought to be documented in writing. Although she emailed R2 on 7 November about her medication and her health she did not include in that message any concerns about Mr Massey’s aggressive behaviour. Her email of 7 November disclosed that she “will not fully recover until I can get this situation resolved.” Therefore, on the balance of probabilities we do not accept that the claimant disclosed information to R2 as alleged on 14 November 2019 and taking the email of 7 November into consideration, this does not contain a disclosure of any “information” about aggressive behaviour by Mr Massey. It notifies R2 that the lack of a resolution is causing her difficulties, however.

[128]The conversation on 14 November 2019 is also said by the claimant to be a protected act for the purposes of her victimisation complaint, but we find that she has not established on the balance of probabilities that this information was conveyed to R2 on this occasion. Disclosure 8/8a

[129]PIDA8/8a is said by the claimant to have been made on 22 November 2019 in a meeting with R4, and allegedly discloses aggressive behaviour by Mr Massey and the impact that it was having on her health. R4 has no recollection of this having been said during this meeting. The text messages exchanged by the claimant and R4 from that day make no reference to it. We find on the balance of probabilities that the claimant told R4 that the lack of a resolution was making her anxious and that no more information was disclosed. This conversation is also said by the claimant to be a protected act for the purposes of her victimisation complaint, but we find that she has not established on the balance of probabilities that this information was conveyed to R4 on this occasion. Disclosure 11/9b

[130]PIDA9b/11 is said by the claimant to have been made on 28 January 2020 to R4. As well as repeating her disclosures about concealment of the “Minden” issue (above), she alleged that she disclosed Mr Massey’s aggressive behaviour to R4 in a meeting in the consulting room in Spring Lane surgery and that mediation was taking too long. She alleged a dereliction of duty on the part of R2. Her contemporaneous notes from that day state that R2 “had watched me break”. R4’s evidence was that she had no recollection of the claimant making this statement. The claimant also says that these disclosures amounted to protected acts for the purposes of victimisation legislation. We do not accept her evidence in this regard. We find that although the claimant wrote this in her “notes to self” the subsequent day, there is no evidence that she used this phrase with R4. We find that the claimant was still trying to persuade the respondents that she was a reliable and indispensable member of the partnership and that making such a stark allegation against R2 would have undermined these aims.

[131]R4 recalled the claimant expressing concerns that R2 and Mr Massey’s previous relationship was influencing the lack of progress with mediation. R4’s evidence, which we accept, was that she reassured the claimant that she had taken on the issue of arranging mediation as she had no prior relationship with Mr Massey. We accept that this exchange took place, and find that it is further evidence that, in her day to day contact with the respondents, the claimant was still seeking to present herself as professional and reasonable, and seeking to maintain her relationship with them. Disclosure 10/9a

[132]PIDA9a/10 is said by the claimant to have been made to Esther Crewe, the mediator during an initial conversation, where the claimant is alleged to have said that Mr Massey had been aggressive towards her since her disclosures and had allegedly complained of the respondents’ failure to act. We accept that this information, if said, was never disclosed to the respondents and there can have been no disclosure of information to them by Ms Crewe, due to the confidential nature of the mediation process. Disclosure 12/10

[133]The claimant’s final alleged disclosure (PIDA 12/10) on this issue was on 3 February 2020 to Dr Hampson. We accept that the claimant disclosed her mental health issues to Dr Hampson at the time and that she was unhappy with the length of time the process of mediation was taking, and the effect this was having on her health. She also alleges that this was a protected act for the purposes of her victimisation allegations. The claimant’s alleged complaints about Dr Kotegaonkar – Disclosure 15/13

[134]The claimant alleges that on 22 November 2019 she disclosed to R4 (PIDA 15/13) that Dr Kotegaonkar was reported to have been “vile and abusive” to colleagues at the Spring Lane surgery where he was based. Her allegations are that she disclosed that this was potentially impacting on patient safety. Dr Kotegaonkar is R4’s husband and they were the sole partners at the Spring Lane surgery. We accept R4’s evidence that they were both overworked and under pressure as a result of the merger and that R4’s role on the EPB and the time this took away from her work in the surgery put them under additional strain. Nevertheless, on the balance of probabilities, we do not accept that the claimant used the words she is alleged to have done or conveyed information that his behaviour potentially impacted on patient safety. She and R4 were still supposedly colleagues and friends as at 22 November 2019. The meeting took place in her car. That choice of words would have been highly damaging to their relationship and we do not accept that the claimant would have done that, especially sitting in close proximity in a confined space. Disclosure 16/14

[135]The claimant alleges that on 23 January 2020 she disclosed to R2 (PIDA 16/14) that the same day, Dr Kotegaonkar was reported to have used expletives and bullied the claimant and other staff. We do not accept on the balance of probabilities that this was disclosed to R2 on that day. The claimant sent a very short Teams message to R2 that day that stated “Can you cover tomorrow afternoon at SL [Spring Lane]? Our locum has cancelled due to bereavement and only Amna in and Ajay [Kotegaonkar] on leave with V [R2] – he is very angry.” She sent a message a short while later to R2 to say “Have agreed with Wiz if I pick his kids up from school he will cover from 3.30.”

[136]The following day on 24 January 2020, the claimant sent R4 the following message: “I hope Ajay is OK. His words tonight needed to be said and also heard, which I believe they were. I was sat beside him and he looked exhausted and close to tears. We can't have this. I worry that our Tower is breaking him- and you. The anxiety he is carrying (and you) for when Amna leaves is palpable - this being in addition to the existing/ongoing nature of the intense workload/pressure at TFHSL you are both under which again, is palpable and needs support/addressing. [……] Today wasn't a particularly easy day for both Ajay & I but that aside, we are on the same team and you will both always have my 100% support.”

[137]On the balance of probabilities, we therefore do not accept the claimant’s evidence that she made disclosures 16 and 14 as alleged. The claimant was still trying to keep R4 as an ally in the workplace at this stage, we find. We do not accept on the balance of probabilities that she would have risked this by making such allegations about R4’s husband in those terms. This is evident by the message sent on 24 January 2020.

[138]We find that the claimant only made the disclosure about Dr Kotegaonkar’s alleged behaviour after her “without prejudice” conversation on 27 February 2020, when she wrote to the respondents in a letter dated 28 February 2020. She threatened to Dr Kotegaonkar to the local medical council (“LMC”). She wrote “At this point, I must also inform you of my intention to dispute the conduct and behaviour of Dr Ajay Kotegaonkar and his use of foul and abusive language that was directed at both myself and other members of staff on Thursday 23rd January 2020. As above and for the same reasons, it would be my preference to refer this matter to the Chief Executive of the Local Medical Council for his recommendations and would therefore like to request your agreement to this.”

[139]It is clear from the wording used that this was the first occasion on which she had made any complaint about this incident, and the disclosure of this was caused by the breakdown in the relationship between her and the respondents after 27 February 2020. The alleged data protection breach – Disclosure 14/12

[140]The claimant alleges, as PIDA 14/12 that on 14 February 2020 she made an oral disclosure of information to R4. We accept this was done and that the claimant did communicate information that was potentially a data protection breach, in that a Teams channel for the Minden practice displayed patient identifiable information. The claimant was concerned that nurses should not have access to this information via this channel. However, we accept R4’s evidence that the claimant knew that Minden was a research practice and nurses had signed confidentiality agreements and had to have an “NHS.net” online account to access the channel. Nevertheless, R4 said she would raise the claimant’s concerns with Mr Massey, who investigated the matter the same day and concluded that there was no data breach.

[141]We accept that Mr Massey explained to her on 18 June 2019 in an email before us in the bundle about NHS.net credentials and the security of the Teams system, including relating to patient identifiable information. The claimant therefore could not have reasonably believed this tended to show a breach of data protection requirements. The alleged failure of the respondents to facilitate a mediation process

[142]It is accepted by the Tribunal that following the breakdown in the relationship between the claimant and Mr Massey at the board development session on 6 August 2019, the respondents (R2, R4 and R5) sought to arrange some kind of mediated reconciliation process between them. The partnership deed provides for arbitration, but the claimant did not wish to use arbitration and requested mediation instead. Mr Massey did not want to mediate with the claimant. He wanted the respondents to investigate the concerns about the claimant’s conduct and performance set out in his email of 14 August 2019 and again on 23 August 2019. Mr Massey told R2, R4 and R5 that branch managers had complained about the claimant on 15 July, and that he considered her conduct both before and during the session on 6 August to be damaging and unacceptable.

[143]Over the months that followed, we accept that the respondents, and R4 in particular, sought to put in place a process that would allow the claimant and Mr Massey to work together. They did not do as Mr Massey asked and begin and investigation into the claimant’s conduct. We find that they sought to repair the relationship between the claimant and Mr Massey and understood that an investigation would damage the relationship further.

[144]The process took a considerable time to arrange. The claimant rejected the mediator that was initially proposed, citing concerns that he was connected in some way with R2 and so could not be impartial. Eventually, on 3 January 2020. Esther Crew, an external mediation professional, was appointed.

[145]Ms Crew had initial meetings with the claimant and Mr Massey separately on 21 January 2020. Mr Massey continued to express his reservations about the process, but R4 persuaded him to go ahead. The claimant, having met Ms Crew, repeated her willingness to participate in mediation on 22 January 2020. Mr Massey indicated that he was not willing to participate in a mediation meeting. R4 asked him to reconsider, and he agreed to do so and met R4 to discuss this. Having reconsidered, Mr Massey informed R4 on 28 January 2020 that he still did not feel able to go ahead with the mediation process. He set out his reasons for doing so in an email of the same date. He cited a lack of trust in the claimant “given the gravity of her accusations about me professionally and moreover as a person”, the claimant’s lack of capability in her role, which he considered required an investigation, and finally the toll that the issue had taken on him personally. He wrote “I would invest more time and energy in something if I felt it was worth it and had a chance of giving benefit…I don’t believe mediation would.”

[146]On 31 January 2020, R4 informed the claimant that the mediation process was cancelled due to Mr Massey’s unwillingness to participate. She was told that R4 had spoken with their solicitors to obtain “advice about next steps” and the claimant would be kept up to date with the same.

[147]We note that mediation is an entirely voluntary process. There was no obligation on him to participate in it. The respondents had no authority to compel him to do so, and R4 had spent quite some time trying to persuade him to do so. We accept that he was concerned about his professional standing in R1 and wanted the opportunity to clear his name. We note that in the context of this situation, having tried mediation with the claimant once with Ms Rubenstein on 6 August 2019 during which the claimant made some damaging and unsubstantiated allegations about him, it was reasonable for Mr Massey not to want to try mediation again. The Without Prejudice Meeting – Evidence of unambiguous impropriety?

[148]The claimant took leave for a week from 17 February 2020. On her return to work, she was invited to a meeting to take place on 27 February 2020 in the Minden board room with R2, R4 and R5. R5’s evidence, which we accept, that the three of them had reached the point where they decided it would not be possible to resolve the issues between the claimant and Mr Massey amicably. Mediation was not possible, and R5’s evidence to the Tribunal, which we accept, was that “the breakdown in the relationship was paralysing us as an institution and we needed resolution swiftly.”

[149]By this stage, R4 had received advice from their solicitor about the grievance submitted by the three branch managers in December 2019. On 10 February 2020, R4 began the process of meeting with the complainants to investigate the issue and she interviewed all three of them in mid-February.

[150]On 25 February 2020, the claimant was invited to a meeting by R4. The invitation email said “Further to the meeting between Simon, Kiran and myself this morning we would like to meet with you on Thursday 27 February 2020 at 11am. This will be held and Minden Board Room. Can you please confirm that you will be attending?” The claimant’s response was “Just before I confirm my attendance, please can I clarify if this is a formal or informal meeting?”

[151]We find that this reply is evidence of the fact that the claimant suspected that matters between her and the respondents were about to move onto a more formal and possibly contentious footing. Her reply was out of the ordinary in the context of the thousands of daily messages and emails that she exchanged with R4, which were almost exclusively friendly and informal. We find that the claimant therefore had some degree of understanding that the meeting may not be a run-of-the-mill matter.

[152]R4’s response was “Hi Kate. There is not a set formal agenda for the meeting so I would see it as an informal meeting.” The claimant wrote back “Hi Victoria, thanks for clarifying, happy to confirm my attendance.”

[153]The meeting took place as scheduled. The respondents’ case before this Tribunal is that the meeting was properly conducted and is without prejudice. The claimant disputes this on three grounds – she says that there was not an existing dispute between the parties, that she did not consent to the meeting being without prejudice, and there was unambiguous impropriety in the respondents’ behaviour, such that the without prejudice exception should not apply.

[154]We have read the meeting minutes and listened to the claimant’s covert audio recording of the meeting. We find that the meeting was tense, but this is to be expected. That is was tense is not evidence of improper conduct. The claimant was clearly expecting the meeting might convey something contentious, by her reply to R4 above and also by the fact that she covertly recorded it.

[155]We find that the claimant was told at the start that the meeting was to be without prejudice, and that she consented to it. The exchange from the transcript of the audio recording clearly demonstrates this. She now alleges she was “ambushed”. We do not accept this accurately characterises the respondents’ approach. She was not told in the meeting invitation that it would be without prejudice, but this is common. Had she been told this in advance, we accept the respondents’ submission that they would have been concerned that she would not attend. This is not unusual. The claimant alleges that because she was told that the meeting was “informal”, that this was misleading. We do not accept that this was improper conduct on the part of the respondents. The meeting was intended, we accept, to be an informal discussion to attempt to agree terms. The relevant section of the start of the transcript is: “C: So that .. okay .. so that tells me it’s a bit formal .. R4:There is no formal agenda. Have a seat. C: I need to adjourn. I, I want somebody present if we … R4: (interrupts) … sorry can I just, just say we were going to, we would like to hold a without prejudice conversation with you. This means that any statements made verbally or any documents ***recording becomes unclear*** without prejudice and we want to make a genuine attempt to resolve this. These will not be able to be referred to in any further proceedings if that was to occur and such discussions are not covered by the Partnership Agreement. This will allow us to speak freely. Under these circumstances, do you agree to continue with the conversation? C: Go on .. R4:Is that a yes? C: Yes. I do feel a little bit ambushed. I just need to put that .. R4 (interrupts).. so the, part of the point of the, the without prejudice conversation is to be able to be open and, and free. C: Okay”.

[156]For a meeting to be without prejudice, there must be an existing dispute. The claimant and Mr Massey, as two of the partners of R1, were clearly in a dispute. They had considered both arbitration and mediation to resolve the dispute. It is irrelevant that no litigation had been contemplated or begun by this stage. It is clear to the Tribunal that the without prejudice conversation was an attempt to negotiate a resolution to this dispute. This is in contrast to the scenario in Mezzoterro, paragraph 20, where the without prejudice conversation was used to “immunise an act from its normal legal consequences, where there is no genuine dispute or negotiation. ”

[157]Finally, was there unambiguous impropriety? The claimant alleges that because she was told of the existence of a grievance “authored by several staff”, and that R4 said that this would be investigated if the claimant rejected the without prejudice offer, that this amounts to the claimant being “blackmailed” by the respondents. We find, the respondents accurately told the claimant that a grievance had been received. They told her that if she remained in the partnership, this would be investigated. The existence of an investigation is not the same as an adverse outcome to that investigation. There was no suggestion in the minutes that the outcome would be predetermined, or that the claimant would not have an opportunity to contribute to the investigation. We do not accept the claimant’s characterisation of the conversation as amounting to blackmail.

[158]We do not accept that the meeting was improper. It is understood and accepted that this meeting was unpleasant. That does not equate to impropriety. We agree with the submissions of the respondents’ counsel that such meetings are commonplace in business and there was nothing further said or done, on the evidence before us, to persuade us that the respondents’ conduct was an abuse of the “without prejudice” rule. The minutes of that meeting are therefore inadmissible. Events of March 2020 onwards and removal of the claimant as a partner

[159]The claimant began a period of sickness absence the following day, 28 February 2020. She rejected the offer made at the meeting on 27 February 2020. The Covid-19 lockdown began at the end of March 2020. The claimant remained on sickness absence for the whole of this period and submitted her first Employment Tribunal claim on 31 July 2020. The claimant’s case to this Tribunal is that the offer made on 27 February 2020 amounted to her being forced out of the partnership. However, we do not accept this to be the case, and having rejected the offer, she remained a partner for over twelve months.

[160]The respondents obtained an occupational health (OH) report for the claimant dated 26 January 2021. The author, Dr Hampapur, wrote that the claimant remained unfit for work and that there would be no return to work unless there was a resolution of “work issues”.

[161]On 25 February 2021, the claimant attended a sickness absence review meeting. The claimant told the respondents that she was unable to return to work until the barriers were lifted, which were those set out in her ET1 claim form to the Tribunal. We accept the respondents’ evidence which was that these barriers were insurmountable, as the respondents fundamentally disagreed with the claimant’s interpretation of events as set out in her claim form These included allegations about Mr Massey’s aggressive behaviour, which now included an allegation that he had deliberately kicked her on 6 August 2019, and that he was incompetent, which the respondents evidently did not agree with. She also repeated the allegations about the Minden issue, which her ET1 characterised as a misuse of NHS funding. Again, we accept the respondents’ evidence that they had repeatedly explained to the claimant why they did not accept her allegations about the Minden issue either.

[162]The claimant complaints about the respondents’ use of the Bradford Factor in assessing her sickness absence levels. However, we accept that the respondents are correct to apply this method of assessment. This is provided for in clause 29.2 of the partnership deed, which specifically authorises the use of the Bradford Factor when considering compulsory retirement of a partner. “29.2 A Partner is deemed to retire from the Partnership and his Leaving Date shall be:29.2.1 immediately on the Partners serving written notice on him requiring him to retire as a Partner after the court has made an order or appointed a deputy under section 16 of the Mental Capacity Act 2005; or

29.2.2 immediately on an Executive Partnership Board member serving written notice on him (following such Partner consulting and obtaining prior written approval of the Executive Medical Director) requiring him to retire as a Partner if he becomes, in the reasonable opinion of the Partners, physically or mentally unfit (certified as such by a medical practitioner) to carry on his duties and obligations as a Partner under this agreement to be decided on a case by case basis and/or he exceeds the maximum Bradford Factor score in any 12-month rolling period”

[163]At a partners meeting on 15 March 2021, the partners voted unanimously to compulsorily retire the claimant. This was communicated to her in a letter dated 17 March 2021. We accept that as the claimant was a partner and subject to the terms of the partnership agreement that she was responsible for putting in place, the partnership had a right to retire her for any reason if the partnership unanimously voted to do so, under the terms of the so-called “Green Socks” clause.

[164]The letter stated “in line with Clause 29.2.2 the Partners are of the reasonable opinion that you are currently mentally unfit and are certified as such by a medical practitioner, namely your GP and Giri Hampapur (Occupational Health Practitioner) to carry out your duties and obligations as a Partner and there is no likelihood of you becoming mentally fit enough to resume these duties in the foreseeable future. It is not realistic for the sickness absence to continue forever. …. In line with Clause 29.2.2 the Partners noted you have exceeded the maximum Bradford Factor score in any 12 month period. Therefore, taking all these factors into account Partners have decided that you are deemed to have retired from the partnership.”

[165]As part of these proceedings, the claimant demanded disclosure of the legal advice given to the partners in connection with her retirement. Initially this was on the unsustainable basis that she was also a partner and was therefore entitled to see it. This was rejected by the Tribunal.

[166]The claimant then made an application for specific disclosure of the copy of the claimant’s ET1 form that Dr Hampson had referred to his evidence the previous day, which form he said was redacted. The claimant’s counsel noted that a claim form cannot be privileged even if it is redacted. The Tribunal had expressed the view during the discussions that we were not able to understand why disclosure of this document was relevant or necessary for us to determine the issues there were for the Tribunal to decide or how this took the claimant’s case any further forward. This appeared to us to be a speculative application and no more. The claimant was not able to explain the basis on which disclosure of this document was relevant or necessary.

[167]The respondent’s counsel provided the context that Dr Hampson and Dr Kotegaonkar, as individuals named in the narrative of the claim form, received redacted copies of the particulars of claim along with a communication from the respondents’ solicitor for the purposes of taking instructions to respond to the claim. There was then a meeting between these individuals and the solicitor, to take instructions. This, counsel said, was clearly privileged and should not be disclosed, as the respondents were concerned about the danger of collateral waiver - if the claim form were disclosed, other information from the solicitor may need also to be waived. Also, the respondents’ counsel expressed concerns that the nature of the redactions may reveal the solicitor’s thought processes. The issue of collateral waiver was dealt with in the case R (Jet2.com Limited) v CAA

2020 WLR 1215

. If voluntary disclosure is made of a privileged document, there can then be collateral waiver of all documents relevant to the “transaction”.

[168]Therefore, if the claimant were to agree that collateral waiver did not apply to anything other than the claim form, the respondent indicated that they were willing to disclose what was sent to Dr Hampson by the solicitor. The claimant’s counsel then said that he was “not prepared to enter into a negotiation about this” and stated that he was “not prepared to pursue the application.” The matter was therefore abandoned and no judicial decision was given on this issue. The Law Discrimination claims and the burden of proof

The Law

[169]Claims under the Equality Act 2010 (EQA) are subject to the ‘shifting burden of proof’ in s136 of the Act. This provides that the initial burden is on the claimant to prove facts from which the tribunal could decide, in the absence of any other explanation, that the respondent has contravened a provision of the Act (a ‘prima facie case’). The burden then passes or ‘shifts’ to the respondent to prove that discrimination did not occur. If the respondent is unable to do so, the Tribunal is obliged to uphold the discrimination claim. Direct Discrimination

[170]Section 13(1) of the Equality Act 2010: A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[171]The Tribunal is to make a comparison with an actual or hypothetical comparator in not materially different circumstances (section 23 EQA 2010). Ultimately, the Tribunal is considering what is the reason why the treatment occurred as it did, if it occurred at all.

[172]Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

, (paragraphs 7 – 12), sometimes it will not be possible to decide whether there is less favourable treatment without deciding “the reason why”.

[173]It is possible to use the evidence of comparators in materially different circumstances to construct a hypothetical comparator and determine how such a hypothetical individual would be treated. However, a statutory comparator as per s23 Equality Act 2010 must be a comparator in the same position in all material respects of the victim save that he, or she, is not a member of the protected class (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

). The Duty to Make Reasonable Adjustments

[174]Smith v Churchills Stairlifts plc

2006 ICR 524

, CA, the test of reasonableness is an objective one and it is ultimately the Tribunal’s view of what is reasonable that matters. It is necessary for the tribunal to look at the proposed adjustment from the point of view of both the claimant and employer and then make an objective determination as to whether the adjustment is or was a reasonable one to make.

[175]Royal Bank of Scotland v Ashton

2011 ICR 632

, EAT, an employment tribunal had erred by focusing, as would be appropriate in an unfair dismissal claim, on the reasonableness of the process by which the employer reached the decision not to make a proposed adjustment. The tribunal’s focus must be on whether the adjustment itself can be considered reasonable.

[176]The Code of Practice on Employment (2011) provides (at 6.28) examples of matters that a Tribunal might consider in assessing the reasonableness of an adjustment. They are:• the extent to which taking the step would prevent the effect in relation to which the duty was imposed (i.e. the effectiveness of the step)

• the extent to which it was practicable for the employer to take the step

• the financial and other costs that would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of its activities

• the extent of the employer’s financial and other resources

• the availability to the employer of financial or other assistance in respect of taking the step; and

• the nature of the employer’s activities and the size of its undertaking.

[177]The purpose of the duty to make reasonable adjustments is to make adjustments that are effective in keeping a disabled person in employment, not to enable them to leave employment on favourable terms. An employment tribunal commits an error of law if it fails to engage with how the steps that it finds should have been taken would have been effective to enable the disabled person to continue working or, as the case may be, return to work (Tameside Hospital NHS Foundation Trust v Mylott EAT 0352/09 ). Discrimination arising from disability

[178]s15 Equality Act 2010 ("EQA")(1) A person (A) discriminates against a disabled person (B) if: (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[179]When assessing an employer’s defence that the unfavourable treatment was proportionate, a Tribunal must critically evaluate the respondent’s evidence, weighing the needs to the employer against the discriminatory impact on the employee. The Tribunal must carry out its own assessment of the matter instead of asking what might fall within a band of reasonable responses. (Hardy & Hansons plc v Lax

2005 ICR 1565

, CA, Gray v University of Portsmouth EAT 0242/20)

[180]S15 (2) and the requirement for knowledge, involves assessing whether the respondent had actual or constructive knowledge of the disability. Whether the respondent has a duty to enquire is discussed at paragraph 6.19 of the Code of Practice on Employment 2011, which notes that “the employer must do all they can reasonably be expected to do to find out whether [the worker has a disability and is likely to be placed at a substantial disadvantage]. What is reasonable will depend on the circumstances.”

[181]Section 15 EqA Grey v University of Portsmouth

[2024] EAT 56

. In the context of a s.15 claim, a tribunal will be expected to provide sufficient reasoning in its judgment to demonstrate that it caried out a critical evaluation on the question of objective justification.

[182]When determining whether the alleged treatment is justified, MacCulloch v ICI

[2008] ICR 1334

EAT:(1) the burden of proof is on the respondent;

(2) the treatment must correspond to a real need, be appropriate with a view to achieving the objectives pursued, and reasonably necessary to that end;

(3) this involves the application of the proportionality principle, which requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking: the more serious the disparate adverse impact, the more cogent must be the justification for it;

(4) it is for the ET to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer’s measure and to assess whether the former outweigh the latter: there is no “range of reasonable response” test in this context.

[183]Per Lady Hale in Homer v Chief Constable of West Yorkshire Police

[2012] UKSC 15

;

[2012] ICR 704

, paragraph 22 for a measure to be “proportionate”, it: “… has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so.”

[184]It is for the ET to reach its own judgment as to whether a measure is “proportionate” for these purposes, except that it is to do so: “… upon a fair and detailed analysis of the working practices and business considerations involved. In particular, it must have regard to the business needs of the employer …” (Hensman v Ministry of Defence [2014]

UKEAT/0067/14

[185]In relation to an employee’s absence, the evidence that will need to be adduced to demonstrate the impact relied on by an employer, at paragraph 45 O’ Brien V Bolton St Catherine’s Academy

[2017] ICR 737

Underhill LJ observed: “…. What kind of evidence is appropriate will depend on the case. Often, no doubt, it will be so obvious that the impact is very severe that a general statement to that effect will suffice; but sometimes it will be less evident, and the employer will need to give more particularised evidence of the kinds of difficulty that the absence is causing. What kind of evidence is needed in a particular case must be primarily for the assessment of the tribunal” Victimisation

[186]The definition of victimisation in S.27 EQA is that: ‘A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.’

[187]The circumstances in which discrimination by way of victimisation is prohibited in employment are in S.39(3) and (4) EQA. S.39(4) provides that an employer (A) must not victimise an employee of A’s (B):• as to B’s terms of employment — S.39(4)(a)

• in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training, or for any other benefit, facility or service — S.39(4)(b)

• by dismissing B — S.39(4)(c), or

• by subjecting B to any other detriment — S.39(4)(d).

[188]The claimant must show that she was subjected to the detriment because of doing a protected act or because the employer believed the claimant had done or might do a protected act. The Tribunal must ask what, consciously or subconsciously, motivated the employer to subject the claimant to the detriment. In the majority of cases, this will require an inquiry into the mental processes of the employer. If the necessary link between the detriment suffered and the protected act can be established, the claim of victimisation will succeed.

[189]St Mungo’s Community Housing Association v Andrews EAT 0180/20 EAT found that an employment tribunal had erred in upholding a victimisation claim on the basis of a protected act that had not been pleaded by the claimant. The direct discrimination case of Chapman v Simon [1994] I.R.L.R. 124, [1994] 1 WLUK 336 applied equally to victimisation claims such that the tribunal was limited to considering and ruling on the protected act as pleaded by the employee. Whistleblowing/Protected Disclosures

[190]For a whistleblowing disclosure to be considered as a protected disclosure three requirements need to be satisfied (Employment Rights Act 1996 s 43A, “ERA”):a. a 'disclosure' within the meaning of the Act;

b. that disclosure must be a 'qualifying disclosure'; and

c. it must be made by the worker in a manner that accords with the scheme set out at ERA 1996 ss 43C–43H.

[191]A “qualifying disclosure” is set out in s43B ERA 1996: “In this part, a “qualifying disclosure” means any disclosure of information which in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:(a) …….

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;

(d) ……….

(e) ………..

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been or is likely to be deliberately concealed.”

[192]For a disclosure to be found to be a qualifying disclosure (s43B ERA), all five of the following elements must be present (Williams v Michelle Brown AM

UKEAT/0024/19

):a. A disclosure of “information”;

b. The worker must believe that the disclosure is made in the public interest;

c. The belief in the disclosure being in the public interest must be reasonably held by the worker;

d. The worker must believe the disclosure tends to show one or more of the matters listed in s43B(1)(a)-(f) ERA; and

e. The belief in the disclosure tending to show matters in s43B(1)(a)-(f) ERA must be reasonably held by the worker.

[193]Whatever is alleged to be a protected disclosure must in itself pass the sufficiency test (Williams v Michelle Brown AM

UKEAT/0044/19

). The Tribunal is not required to take into account extra factual evidence of wrongdoing that the claimant had not mentioned.

[194]In Chesterton Global Ltd v Nurmohamed

[2017] EWCA Civ 979

, Underhill LJ noted: “In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker…. The question is one to be answered by the Tribunal on a consideration of all the circumstances of the particular case….”

[195]In Chesterton, four factors which may assist the Tribunal in its assessment of the “public interest” element are as follows:• the numbers in the group whose interests the disclosure served;

• the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect;

• the nature of the wrongdoing disclosed. Disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people; and

[196]In Chesterton it was noted also that the Tribunal must consider whether the clamant had a genuine belief at the time that the disclosure was in the public interest and if so, did he or she have reasonable grounds for so believing? In Ibrahim v HCA International

[2019] EWCA Civ 207

, it was held that the claimant's motivation for making the disclosure is not part of this test.

[197]Determination of the phrase 'in the public interest' requires a consideration of what it is about the particular information disclosed that does, or does not, make the disclosing of it, in the reasonable belief of the worker so doing, 'in the public interest'. A disclosure that is made with no wish to serve the public can still be a qualifying disclosure, however the person making the disclosure must hold the reasonable belief that the disclosure is 'made' in the public interest. Generally, workers blow the whistle to draw attention to wrongdoing. That is often an important component of why in making the disclosure they are acting in the public interest. (Dobbie v Felton (t/a Feltons Solicitors)

[2021] IRLR 679

EAT)

[198]When considering the reasonableness of the claimant’s belief, the information itself does not have to be true, but the claimant’s belief has to be reasonable having regard to her personal circumstances at the time (Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

EAT).

[199]Where a claimant made a series of allegations that could have been protected disclosures but were made as part of a disciplinary dispute with the employer which led to her dismissal for other reasons, the tribunal was held entitled to rule that they were made only in her own self-interest and so her claim of whistleblowing dismissal was rejected (Parsons v Airplus International Ltd

UKEAT/0111/17

[200]In relation to the failure of a legal obligation, in Boulding v Land Securities Trillium (Media Services) Ltd

UKEAT/0023/06

Judge McMullen said: ''As to any of the alleged failures, the burden of the proof is upon the Claimant to establish upon the balance of probabilities any of the following:(a) there was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on.

(b) the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.''

[201]A detriment (s47B Employment Rights Act 1996) occurs where the employee has suffered an act, or a deliberate failure to act, on the ground that the employee made a protected disclosure. This requires an analysis of the mental processes (conscious or unconscious) which caused the employer so to act (Harrow London Borough v Knight

[2003] IRLR 140

, EAT). The test is whether the protected disclosure materially influenced the detrimental treatment of the employee. It is immaterial if the protected disclosure is one of many reasons for the detriment, provided that the disclosure has a material influence (meaning more than trivial) on the decision-maker (Fecitt v NHS Manchester

[2011] EWCA Civ 1190

[202]A detriment will be established if a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment. (Jesudason v Alder Hey Children's NHS Foundation Trust

[2020] EWCA Civ 73

). Without prejudice

[203]The ‘without prejudice’ rule makes anything said in the course of a genuine attempt to settle a dispute inadmissible in court or Tribunal proceedings. This is to encourage settlement of disputes, so that anything said during settlement negotiations is protected from being used against parties in those proceedings.

[204]There must be an existing dispute if parties are to rely on this rule (Bradford & Bingley Plc v Rashid

[2006] UKHL 3

). This does not require litigation to have been started, or threatened or proposed, but the test is one of “proximity and contemplation”. (Framlington Group Ltd v Barnetson

[2007] EWCA Civ 502

which proposed that the crucial consideration was whether the parties contemplated or might reasonably have contemplated litigation if they could not agree on the outcome of the negotiations).

[205]The presence or otherwise of a grievance on the part of an employee is not a determining factor in whether the parties are in dispute – the test is one of proximity and contemplation of litigation. (BNP Paribas v Mezzotero

[2004] IRLR 508

(EAT)).

[206]It is possible that a party will be prevented from relying on the without prejudice rule in cases of unambiguous impropriety. This is a high hurdle for a party to establish. It is reserved for cases of serious abuse of privilege (Unilever plc v The Procter & Gamble Co

[2000] 1 WLR 2436

.) Application of the law to the facts found Whistleblowing/protected disclosures

[207]Other than PIDAs 7 and 8/8A, we do not accept that the claimant made disclosures of information qualifying for protection, for the reasons set out below.

[208]As has been set out in the findings of fact above, the disclosures on the Minden issue or the issue of concealment of the same do not qualify for protection, as the claimant’s knowledge of the approach taken by the respondents towards the harmonisation of the working practices was well-established on the facts before us. Applying the principle established in Korashi v Abertawe (above), we find that the claimant’s personal circumstances were such that she knew, or ought reasonably to have known, that the respondents’ administration of funds to partners was not in breach of any legal obligation nor did it demonstrate financial irregularity. The claimant was, as we have found, in the sub-set of people in R1 to have known about this issue as early as 2017. She was involved in discussions with R1’s accountant. She drafted the partnership deed which dealt with the rights and obligations of the partners to one another, including their financial obligations. She had worked in the NHS herself for a number of years before joining R1. She managed the due diligence involved in the merger of the practices to form R1 before becoming a partner herself. She had joint and several liability as a partner for any mismanagement, misallocation, fraud or concealment of the partnership funds.

[209]We also note that the claimant’s allegations are not consistent or specific over time. She has not been clear in each disclosure as to what she was disclosing, or what she considered to be the issue. In her earlier disclosures, such as to R5 and then R4 after the board development session in August 2019, her concerns were as to the fairness of workload, not the misallocation of payments to partners. Over time, this became an issue of, in essence, overpayment of Minden partners. Then it became misallocation of NHS funds, then it became a fraud on the NHS. We do not accept that this was because the claimant grew in awareness of the nature of the alleged fraud; she was involved in the harmonisation of the practices from before R1 was formed and knew, or ought reasonably to have known what the respondents were doing and why. She ought reasonably to have known, as Dr Hampson told her, that the NHS has not paid GPs per “session” since 1990. She knew, or ought reasonably to have known, of the “compression” of sessions at Minden caused by the open access surgery and the much-increased workload that this caused for Minden partners on those open access days, and that the quid pro quo was that it had been accepted by the EPB and R1’s accountant that they would transition away from this structure towards being in line with the rest of the practices in R1 over a period of time, assisted by the “AskMyGP” app’s implementation. She also knew, or ought reasonably to have known, that this period of inequality between R1’s partners required careful management amongst those non-Minden partners in the newly formed partnership.

[210]We find that she therefore did not reasonably believe that the Minden issue tended to show a breach of a legal obligation, or concealment of the same. As we have already identified, the claimant and Mr Massey were the two businesspeople employed by the clinical partners to assist with the management and smooth running of R1. The claimant and Mr Massey, we find, knew more than the clinical partners did about the detail of the finances and workforce planning of R1.

[211]Even if we were to take the claimant’s case at its highest and assume that she did not possess this knowledge and information, the first time she disclosed this matter (PIDA5) to R5, we found that it was on the basis of a lack of fairness in work allocation between partners and not due to concerns around fraud/misuse of NHS money. A lack of fairness in work allocation does not equate to the breach of a legal obligation. Nevertheless, R5 investigated the issue and responded to the claimant and provided her with an explanation as to why he was not concerned by the apparent discrepancies in the workload between Minden partners and others. He also provided her with an explanation as to why the EPB were not ready to discuss this issue more widely or tackle the discrepancies with the wider partnership, as set out in our findings of fact above.

[212]Therefore we conclude that the claimant did not reasonably believe her disclosure to R5 to be that of information that tended to show a breach of a legal obligation. Even if the claimant’s case is taken at its highest, which is that she lacked knowledge about R1’s workforce planning and funding arrangements from the NHS (which we do not accept), she did not disclose evidence that tended to show a breach of a legal obligation to R5 on this occasion (that being alleged unfairness in workload allocation). Furthermore, given the explanation provided to her by R5 shortly afterwards, she can have had no further reason to consider the Minden arrangements, and the respondents’ reluctance to discuss them amongst the wider partnership, to be evidence of a breach of a legal obligation or concealment of the same. R5 was a longstanding friend and colleague of hers. She continued to socialise with him and his family for a number of months after this conversation. We do not accept that she did not genuinely believe his explanation.

[213]The disclosures that follow on the Minden issue and the associated issue of concealment therefore do not qualify for protection either. The claimant did not reasonably believe that the respondents breached a legal obligation, either in the allocation of the workload or the allocation of NHS funds, or that she was being asked to conceal a beach of a legal obligation. She had been given a full explanation by R5, if any was needed. Over the weeks and months that followed, she continued to receive explanations of the same from R4, R2 and Dr Hampson.

[214]In relation to the claimant’s disclosures about the data protection breach, we do not accept that the claimant reasonably believed that the respondents had breached their obligations in this regard, for the reasons set out in our findings of fact above that relate to her personal circumstances at the time (Korashi), which is that she had received an explanation about data security on the relevant Teams channel some months earlier.

[215]In relation to the claimant’s alleged disclosures about Dr Kotegaonkar’s conduct, we made findings of fact that these disclosures were not made as alleged.

[216]In relation to the claimant’s disclosures about Mr Massey’s behaviour since the claimant made disclosures, and the respondents’ alleged failures to “resolve the work based issues or prevent the victimisation of the claimant”, we accept the claimant disclosed information that the continuation of the issue without resolution was causing her anxiety (PIDA 7 and 8/8a). Where the breach is of a legal obligation to an individual, the Tribunal must consider whether the claimant reasonably believed that her disclosures were in the public interest (Chesterton Global Ltd v Nurmohamed

[2017] EWCA Civ 979

). We accept that the claimant believed that her disclosures were in the public interest, but we do not accept that this belief was reasonable.

[217]The claimant provided the Tribunal with little clear evidence of this issue having affected people other than herself, other than to say that others had also complained about Mr Massey. In Chesterton, four factors which may assist the Tribunal in its assessment of the “public interest” element are as follows:• the numbers in the group whose interests the disclosure served. We find that the “group” was the claimant;

• the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – the interests affected were the claimant’s ability to attend work, and her mental health;

• the nature of the wrongdoing disclosed. We do not accept that the respondents had the ability to “resolve” the issue to the claimant’s satisfaction. That involved either dismissing Mr Massey, which they did not have any reason to do, as he was continuing to attend work and be productive in his role, or force him into mediation, which was not possible. The respondents also do not accept that the claimant was being “victimised” at the time; and

• the identity of the alleged wrongdoer. “The larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e. staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest”. We accept that Mr Massey was an important figure in the first respondent’s organisation and that the first respondent’s organisation was a prominent feature of the communities that it operated in.

[218]In considering the reasonableness of the claimant’s belief that her disclosure was in the public interest, the Tribunal must consider the claimant’s personal circumstances at the time. Although the claimant now alleges that her mental health was consistently poor all the way through the period of time from May 2019 until she started her long period of sick leave in February 2020, she regularly attended work and socialised outside work. R5’s evidence, which we accept above, was that apart from a period of approximately a month where she struggled, she appeared to be able to return to being productive and sociable. She also had, we find, been the cause of some of the considerable difficulties she was having with Mr Massey, because of the allegations she raised against him (such as her fears for her safety) and the manner in which she raised them (such as in what was meant to be a constructive mediation session).

[219]On balance, we do not accept that the claimant reasonably believed that disclosures about Mr Massey were in the public interest. She was stuck in a conflict with him in the workplace which appeared to have no prospect of resolution. Their relationship had broken down, seemingly irretrievably. Although the claimant alleges others were affected by this, there is no evidence to demonstrate that others also had cause to know or complain about him at the time the disclosures were made. Although the claimant makes much of Mr Massey having been rude about individuals they worked with, this was done through private messaging with trusted colleagues. The disclosures about Mr Massey’s alleged conduct since she complained about him were not reasonably believed to be in the public interest by the claimant.

[220]The claimant alleges that these disclosures caused her detriments in relation to the meeting on 25 February 2021, her retirement as recorded in the letter of 17 March 2021, and in relation to being provided with a redacted copy of the grievance of December 2019 on 2 April 2021.

[221]Even we take the claimant’s case at its highest, and accept that she was able to establish that her comments about the respondents’ alleged failures to “resolve the work based issues or prevent the victimisation of the claimant” disclosed a breach of a legal obligation to provide a safe system of work and the legal obligation not to victimise, and that she reasonably believed these disclosures to be in the public interest, on the balance of probabilities, we find no evidence that the claimant’s reported disclosures caused (either in whole or in part) the respondent’s conduct on 25 February, 17 March or 2 April 2021.

[222]The respondents’ reasons for each of these actions were as follows. The allegation that the respondents applied the wrong sickness absence tool is not made out on the balance of probabilities. Clause 29.2 of the partnership deed permits the use of the Bradford factor. Furthermore, the claimant has not established that the reason why this tool was used was because of the protected disclosures. It was used, we find, because it was in the partnership deed.

[223]The respondents did not tell the claimant the identities of the people who raised the grievance against the claimant. The claimant has not established that this was done because she made protected disclosures, but instead we accept the evidence of the respondents this was done to protect the identity of those complainants, who had asked to remain anonymous.

[224]The claimant alleges that the respondents were evasive, cold and hostile towards her on 25 February 2021. Even if we were to accept the claimant’s allegations in this regard, and considering the low threshold for establishing that the claimant was subjected to a “detriment”, the claimant has failed to establish on the balance of probabilities that there is any causal link between the alleged conduct at the meeting on 25 February 2021 and disclosures made more than a year earlier. Furthermore, these disclosures were made in the context of an ongoing dispute between the claimant and Mr Massey, that the respondents took considerable steps to try to resolve. The parties were, at February 2021, involved in Tribunal litigation. We find that the reason for any distance between them at this meeting was due to a more formal relationship having developed out of necessity because of the litigation having started in August 2020.

[225]The claimant alleges that her retirement from the partnership in March 2021 was because of her protected disclosures. She has not established on the balance of probabilities that this was in any way a cause of her retirement. Her retirement was done, we find, on the basis that after a considerable period of absence (13 months) there was no prospect of her returning to work. This was because she said that she could not do so until all of her issues (as set out in her claim form) were resolved. We find that it was clear at the time in March 2021 that those issues were not capable of resolution. This was the reason for her retirement, not any protected disclosures.

[226]Finally, the claimant alleges that the sending of the redacted grievance was due to her having made protected disclosures. We accept the respondents’’ evidence that she was provided with this document as part of her subject access request. There is a suggestion that the claimant considered this document to have been fabricated. This was not an allegation that was put to the respondents’ witnesses. Having seen the contemporaneous investigation minutes in the bundle in relation to this grievance, and having considered the claimant’s acknowledgement in her evidence under crossexamination that she spent more time scrutinising Mr Massey’s work than doing her own, we find on the balance of probabilities that the grievance was not fabricated, and was supplied in connection with the respondents’ duties when responding to the SAR.

[227]Therefore the claimant’s claims that she was subjected to detriments for having made protected disclosures fail and are dismissed. When was the claimant a disabled person? When did the respondents know this?

[228]As found above, the medical and other evidence shows that the claimant did not meet the statutory definition of a disabled person until May 2020. We have taken into account in our findings what the respondents ought reasonably to have known while the claimant was in the workplace and nevertheless conclude that May 2020 was the date on which she met the definition of a disabled person.

[229]She was absent from the workplace from 28 February 2020 and remained off sick for the rest of 2020. She did not have any sustained contact with the respondents after she went off sick, and what contact there may have been by way of contact between legal representatives has not been disclosed to the Tribunal.

[230]We find that, while the claimant met the statutory definition of a disabled person in May 2020, there is no evidence before us from which we can conclude that the respondents knew this at the time. Her ET1 claim form was presented to the Tribunal on 7 August 2020. The respondents submitted their ET3 response forms in September 2020. Therefore, in either late August or early September 2020, the respondents would have been made aware, due to the content of the ET1 claim form and particulars of claim, of the claimant’s pleaded case as to her disability, which would also have given them information from which they should reasonably have known that she was a disabled person. Direct Disability Discrimination and Discrimination Arising from Disability

[231]The claimant alleged that acts on 16 September 2019 and 27 February 2020 amounted to direct disability discrimination. However, she was not a disabled person at those times. She also alleges that acts, or failures to act, which took place between 7 August 2019 and 18 March 2021 amount to direct disability discrimination, in that R2, R4 and R5 failed to arrange mediation and/or take appropriate steps to remediate her relationship with Mr Massey. The Tribunal only has jurisdiction to consider those acts or failures to act after the claimant met the definition of a disabled person in May 2020. Therefore, the Tribunal can consider whether the respondents (R2, R4 and R5) failed to arrange mediation and/or take appropriate steps to remediate her relationship with Mr Massey because of the claimant’s disability.

[232]The Tribunal has also considered whether, because the claimant is a disabled person, did R1, R2, R4 and R5 expel the claimant from the partnership contrary to the recommendations in Dr Hampapur’s report, while taking no steps to resolve her concerns on 18 March 2021.

[233]In respect of each of these allegedly unlawful acts, the Claimant alleges that the correct comparator is a (hypothetical) partner of R1 who shares the same characteristics as the claimant, and fulfils the same role, but who is not disabled.

[234]In relation to the alleged failure to arrange mediation and/or take appropriate steps to remediate the relationship with Mr Massey, it is the respondents’ case that they did not fail as alleged. Our finding is that the respondent did not fail to take appropriate steps as alleged. The respondents do not have power to compel Mr Massey to mediate or repair his relationship with the claimant. Mr Massey did not wish to do either thing. The respondents sought over a period of many months and many conversations with Mr Massey, to persuade and at times pressurise him to consider mediation and he did not wish to do so. The respondents did all they could have been expected to do in the circumstances, and we do not accept that they failed in this regard.

[235]In relation to the second remaining allegation of direct discrimination, the parties agree that the claimant was retired from R1 using the “green socks” clause in the partnership agreement. However, the respondents do not agree that this was contrary to the recommendations of Dr Hampapur’s report. The report stated that the claimant would not be fit to return to work until all the issues set out by the claimant in her ET1 and particulars of complaint (referred to as “workplace matters”) were resolved. As we have noted above in relation to Mr Massey, these workplace issues were not within the respondents’ gift to resolve and Mr Massey was not under any obligation to mediate or reconcile with the claimant. We find that the respondents recognised that resolving the “workplace matters” would not be possible, and we accept that this was a reasonable conclusion for the respondents to reach.

[236]We find that the claimant and the respondents were therefore at an impasse. The report of Dr Hampapaur made it clear that the claimant could not return to work until the issues were resolved, and the respondents knew that the issues were not able to be resolved. Therefore, the claimant was not able to return to work. We find that this was the reason for her retirement from the partnership and not because of her disability.

[237]The claimant repeats these allegations in the context of a claim for discrimination because of something arising in consequence of her disability (s15 Equality Act 2010). We have already found that the allegation concerning the alleged failures to arrange mediation and remediate her relationship with Mr Massey did not occur. It is agreed by the respondents that the claimant was retired from R1. We do not accept that this was contrary to the recommendations of Dr Hampapaur.

[238]For the allegation that the retirement was unlawful treatment, the claimant says that the “something arising in consequence of” her disability is her failing mental health and the perceived impact of this on her ability to work. We accept that the claimant was unable to work as a result of her mental health. She was also unable to work because of her dispute with Mr Massey, which was not capable of resolution.

[239]There was therefore a reason connected with her disability, and a reason unconnected with her disability for her retirement from the partnership. Both reasons prevented a return to work. As set out in Pnaiser v NHS England and anor

2016 IRLR 170

, EAT, there may be more than one reason or cause for the impugned treatment and, it need not be the main or sole reason for the unfavourable treatment but must have at least a significant influence so as to amount to an effective reason for or cause of it.

[240]Therefore, the claimant was retired because of something arising in consequence of her disability, that being her mental health and her inability to work. Can the respondents show that this unfavourable treatment was a proportionate means of achieving a legitimate aim? The aims relied on by the respondents were twofold and were managing the sickness absence of partners and ensuring that partners comply with the partnership obligations and perform their roles and duties. The respondents reminded the Tribunal that these aims are consistent with the partnership sickness policy which was drafted by the claimant. We accept that they are legitimate aims.

[241]Was the application of the legitimate aims proportionate? Could something less discriminatory have been done instead? We accept that their application was proportionate and that there was nothing else that the partnership could have done in the circumstances. Even if the claimant had been allowed unlimited time for her mental health to be given the opportunity to improve, she had been clear that she would not be able to return to work until the “workplace issues” had been resolved. As set out above, these were not capable of resolution, and we find that the partners’ actions were proportionate and not unreasonable in the circumstances. Failure to make reasonable adjustments

[242]The claimant says that the respondents had a provision, criterion or practice (“PCP”) of “a requirement for her to continue to perform her role while working closely and liaising with all senior members including R2, R4 and R5.” She says that she was substantially disadvantaged by this PCP such that R1 was under a duty to make reasonable adjustments and R1 failed to do so. The duty only arises when the respondents knew or ought reasonably to have known that the claimant was disabled, which was not until late August/early September 2020. By this stage, the claimant was off sick. There was no contact related to the claimant’s return to work until early 2021, when the claimant’s OH report was produced and a sickness absence meeting held on 25 February 2021. The duty also only arises when the respondents know, or ought reasonably to have known, that the PCP causes the disadvantage to the claimant that is alleged. Therefore, the duty arose when this issue was raised in the claimant’s ET1, so in August/September 2020.

[243]However, we note that in any event the PCP is misconceived. As drafted by the claimant, the PCP is not of general application in R1 as it relates only to her. We do not accept that such a PCP was a requirement the employer applied that puts the claimant as a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, as no-one other than the claimant had this PCP applied to them. We therefore conclude that no duty to make reasonable adjustments arose in 2021 or at any other time.

[244]In any event, the reasonable adjustments suggested by the claimant were largely implemented by the respondents. She says that they should have been made as follows: to investigate and resolve her disclosures in a timely and appropriate manner, to arrange for mediation and repair of her relationship with Mr Massey and to arrange for her to work in such a way as to limit her contact with Mr Massey until their relationship had been adequately repaired. We note that these adjustments were largely done by the respondents during her time working for R1; it was (as stated earlier) not possible to force Mr Massey to mediate/repair his relationship with her, but the respondents made concerted and wholly reasonable attempts that he do so. They also did, we find, investigate such disclosures as were made to them, but as they disagreed with her about them, these could not be “resolved”. We also note that the respondents did take steps for her to work in such a way as to limit her contact with Mr Massey. This was at Mr Massey’s request as much as the claimant’s.

[245]For these reasons, the claim for a failure to make reasonable adjustments is not made out on the facts before us. Harassment

[246]As the Tribunal has determined that the claimant was not disabled until 28 May 2020, the harassment complaints which occurred prior to this date fail and are

[247]The harassment complaints that occurred after this date are that R2 and R4 made comments in the letter of 17 March 2021 and sent the claimant a redacted grievance on 2 April 2021. We have carefully considered the comments made in the letter of 17 March 2021 and do not consider that they are capable of constituting harassment. We do not accept that they had the “purpose” of harassing the claimant. Even if the letter and/or the sending of the grievance had that effect, it was not reasonable for the conduct to have had that effect on the claimant (as per s26(4)(c) EQA). The letter is, we find, an accurate record of the events at the time. The grievance was sent as part of the respondent’s obligations to engage with the claimant’s subject access request. Victimisation

[248]The claimant’s victimisation complaints consist of a series of alleged “protected acts” and a series of alleged detriments. When asked which detriments were said to have been link to which protected acts, the claimant’s case was that all of the acts caused all of the detriments. This is not possible, given that some detriments occurred before some protected acts were done. It is trite to say, but bears repeating, that a link between a protected act and a detriment must be established in a victimisation complaint. It is not sufficient for a party to say that there were both protected acts and detriments. A claim will not succeed if there is no link between the acts and the detriments. In the majority of cases, this will require an inquiry into the mental processes of the employer.

[249]Furthermore, some alleged protected acts involved certain of the respondents but not others. Detriment cannot be because of a protected act in circumstances where there is no evidence that the person who allegedly inflicted the detriment knew about the protected act. In the absence of circumstances from which such knowledge can be inferred, a claim for victimisation will not succeed (Scott v London Borough of Hillingdon

2001 EWCA Civ 2005

, CA).

[250]The claimant’s “protected acts” all occurred before the claimant met the test in s6 Equality Act 2010 of a disabled person, and before the respondents had knowledge of the same. While a claimant does not have to have a protected characteristic in order to do a protected act, in this case the issue of the claimant’s status as a disabled person is relevant to what the respondents ought reasonably to have understood from the claimant’s protected acts.

[251]Each of the claimant’s ten protected acts involve allegations that she referred to her problems with her mental health which she says she said were caused by issues at work. Had the respondents known at this stage that the claimant was a disabled person within the scope of the EQA, it might have been reasonable to expect the respondents to understand and infer that references to her mental health issues were references to her disability. However, without that knowledge and without any way for the respondents to appreciate that these references were to disability or the EQA, references to her mental health per se were not, we find, sufficient for her to have done a protected act. Having mental health difficulties, even if they cause considerable adverse effects, is not the same as being a disabled person – it is only part of the test in section 6 EQA.

[252]The claimant must show that she was subjected to the detriment because of doing a protected act or because the employer believed the claimant had done or might do a protected act. The Tribunal must ask what, consciously or subconsciously, motivated the employer to subject the claimant to the detriment. The respondents did not know, and could not reasonably have known, at the time the alleged protected acts were done, that the claimant was disabled, and that references to her “mental health” were references to her status under the Equality Act 2010. The Equality Act can therefore have had no influence, consciously or unconsciously, on their motivations towards the claimant. We therefore do not accept that the claimant did any protected act or acts for the purpose of s27 Equality Act 2010. These claims fail and are