Dr A Aftab and Prof R Scarpa v Durham University and others: 2501166/2021 and 2501167/2021
EMPLOYMENT TRIBUNALS
Case No 2501166/2021, 2501167/2021
Between
1. Dr A Aftab 2. Prof R ScarpaClaimantDurham University and othersRespondent
Before
Employment Judge JeramDate 19 November 2025
JUDGMENT
[1]Dr Aftab shall pay the respondents £14,786.55 by way of costs.[2]Prof. Scarpa shall pay the respondents £ £14,786.55 by way of costs.
REASONS
[1]On 12 May 2023, the respondents made an application for costs against the claimants. It was made pursuant to rule 76(1)(a), in that they alleged that the claimants had in the conduct of the proceedings acted unreasonably and also pursuant to rule 76(1)(c) on the ground that the claimant’s application for an adjournment was made on the day of the hearing, being 12 April 2023. Legal Principles 10.5 Reserved judgment with reasons – rule 61 1 March 2017
Legal Principles
[2]Rule 76 of the Employment Tribunal Rules of Procedure 2013 (“the ET Rules”) govern the awarding of costs by the Tribunal. So far as is relevant, it provides: “76. Where a costs order or preparation time order may or shall be made (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings or part have been conducted; or . . (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins].[3]The tribunal has a duty in the exercise of its powers under the relevant provisions of the Rules, to give effect to the overriding objective.[4]It is common ground that the Tribunal must apply a two-stage process: first, it must decide if the claimant’s conduct reached the threshold of unreasonable conduct under rule 76(1)(a); second, if so, whether to exercise its discretion to make a costs order against the claimant, and if so, in what amount: Vaughan v London Borough of Lewisham 2013 IRLR 713, at paragraph 5.[5]The task of the Tribunal in exercising its discretion is to look at the whole picture of what happened in the case and decide whether there has been unreasonable conduct by the claimant in conducting the case and if so, to identify the conduct, what was unreasonable about it, and what effect it had. However, there is no requirement for a precise correlation between the conduct and the costs incurred: Yerrakalva v Barnsley Metropolitan Borough Council 2012 ICR 420, following McPherson v BNP Paribas (London Branch) 2004 ICR 1398).[6]In the Employment Tribunals, costs orders are the exception rather than the rule: Yerrakalva; Gee v Shell UK Limited 2003 IRLR 82.[7]The guidance by the Court of Appeal in Yerrakalva held that costs should be limited to those ‘reasonably and necessarily’ incurred.[8]Awards of costs are intended to be compensatory not punitive: Lodwick v Southwark London Borough Council [2004] ICR 884. 10.5 Reserved judgment with reasons – rule 61 2 March 2017
Background
[9]On 26 August 2021, Dr Aftab and Prof Scarpa presented separate claim forms against their employer and two named colleagues in which they complained that they had been subject to detriments on the ground that they had made protected disclosures.[10]Both claimants were, at all times, and remain, represented by a national firm of solicitors specialising in employment law; they named, I am informed, a senior partner in their claim form as their legal representative.[11]Their Grounds of Complaint had some differences between them but were in substance, and for current purposes, the same.[12]The claimants were supervisors of a PhD student (‘the Student’). The claimants alleged that the Student had failed to attribute work or research to them in his final thesis.[13]They contended that they had made four protected disclosures (they were, it transpired, the same four disclosures) and had suffered various detriments.[14]Disclosures One and Two were said to have been made in writing on 4 November 2019 and on 19 May 2022, respectively, to the First Respondent. The claimants contended that violations of the University regulations had occurred.[15]Disclosures Three and Disclosure Four were said to have been made ‘indirectly to the first respondent’ in writing on 5 June 2020 and 26 June 2022, respectively, to the Institute of Business Affairs in Karachi and the Higher Education Commission of Pakistan.[16]All four disclosures were said to amount qualifying disclosures because the information provided tended to show a failure on the part of the First Respondent to comply with a legal obligation pursuant to section 43B(1)(b) ERA 1996. The legal obligations said to be relied upon included breaches of University regulations, ‘intellectual property rights’, ‘potential plagiarism’ and ‘academic fraud’.[17]The claimants’ respective Grounds of Complaint identified detriments they claimed they had been subject to on the ground that they made one or more of the 10.5 Reserved judgment with reasons – rule 61 3 March 2017 protected disclosures. In addition, they each averred that they relied on further detriments contained in documents appended to the Grounds of Complaint.[18]Dr Aftab identified detriments in 12 paragraphs contained in his Grounds of Complaint. Prof Scarpa’s Grounds of Complaint identified detriments in 14 paragraphs. Ten of those detriments appear to be common to both claimants. Almost every paragraph contained a reasonably succinct description of the treatment they complained about. I find that these paragraphs illustrate that the claimants were capable of expressing their detriments by identifying only the essential facts necessary to understand the complaint made.[19]Some of the pleaded detriments named the second and third respondents as being responsible for the conduct; others did not. Paragraph 14 of the Grounds of Complaint stated ‘in the alternative, the claimant claims that he was subject to a detriment by one or more of the first respondent’s employees namely [2nd respondent] and/or [3rd respondent]’.[20]Both claimants, at paragraph 12 of their respective pleadings, averred that they had been subject to additional detriments and they stated ‘the various detriments are compendiously described in the claimants’ grievances dated June 2021 as appended to these Grounds of Complaint. They are referred to for their terms the sake of brevity and deemed to be incorporated herein’.[21]Appended to the Grounds of Complaint were grievances, submitted by each claimant to their employer on the first respondent’s grievance template.[22]Dr Aftab attached to his Grounds of Complaint his grievances about the second and third respondents. They were both dated 15 June 2021 and comprised of a total of 70 pages of documentation.[23]In the case of Prof Scarpa, he appended his own two grievances against the second and third respondents, again both dated June 2021 and totalling 50 pages.[24]Both grievances were contained on the first respondent’s internal grievance form, were expressed in a dense narrative style and required the reader to possess a pre-existing knowledge of the background to have a prospect of understanding. References to ‘whistleblowing’ and ‘detriments’, appeared to be terms used, unsurprisingly given their context, in the everyday, non-statutory sense. It was not possible for a lawyer or a tribunal reading those documents to understand, much 10.5 Reserved judgment with reasons – rule 61 4 March 2017 less confidently identify a comprehensive list of the detriments relied upon in the litigation. Notably, Mr Flood did not seek to suggest that these documents were capable of being deciphered in the litigation context.[25]On 2 September 2021, the claimant’s named legal representative and the respondents were sent a notice of a case management preliminary hearing to take place on 10 November 2021. It reminded the parties that their representative ‘must fully understand your case and be able to answer any questions they are asked about it’.[26]On 30 September 2021, the respondents submitted their joint response. They stated that the grievance investigation was ongoing and for that reason they were unable to fully respond the factual allegations. They added that they did not admit that the claimants had made qualifying disclosures and ‘in particular’ that they took issue with the contention that the respondents University regulations amounted to a legal obligation and that the entities in Pakistan amounted, as claimed, to responsible persons for the purpose of section 43C(1). They maintained a bare denial of all allegations that the claimants were subject to a detriment. First Case Management Hearing – 10 November 2021[27]On 10 November 2021, the parties attended a case management hearing before EJ Langridge. Both parties attended by their legal representatives, but in the case of the claimant, the named legal representative did not attend. EJ Langridge agreed with the parties’ shared position that limited progress could be made whilst the grievance procedure was underway. She recognised that the parties anticipated that there may be future amendments or time points arising, as identified in the joint agenda; she noted that the respondent sought further information about ‘the statutory basis’ of the claimants’ claims.[28]EJ Langridge made four orders that she required the claimants to comply with, within 28 days of receipt of the grievance investigation report. First, the claimants were ordered to provide further information about the relevant failing. Second, she ordered that the claimant provide the basis upon which they contended that they had made a disclosure to a relevant person.[29]EJ Langridge’s third and fourth orders were about the detriments the claimants alleged they had suffered. She required them to both to ‘provide further information clarify the detriments already alleged in the claim forms, by providing enough information to enable the respondent to understand what is being alleged to have been done, or not done, by whom and when.’. She also ordered ‘if the 10.5 Reserved judgment with reasons – rule 61 5 March 2017 claimant seek to amend their claims by adding further detriments which of the reason subsequent to the presentation of the claim forms, they shall identify those amendments with enough information to enable the respondent to understand what is alleged to have been done, or not done, by whom and when.’.[30]The respondent was ordered, within 28 days of receipt of the information from the claimant, to write to the claimants and the tribunal confirming whether it requires any further information, setting out its position in relation to any application to amend and if advised, to file an amended response.[31]Although both parties subsequently sought to suggest that they had not received written record of the orders, the Tribunal file confirms that they had been sent these orders, and the in case of the claimant, at their request, twice. In any event, both legal representatives had attended the hearing when the orders were made.[32]The claimants both received the outcome to their grievances from Prof Przyborski on 4 February 2022. They did not at that stage comply with the order of EJ Langridge, but the instead took steps within 28 days after the conclusion of the grievance appeal process, a point that the respondents took no issue with at the time, or for the purposes of this application. The claimants received the outcome of their appeal on 16 May 2022. First Application to Amend – 13 June 2022[33]On 13 June 2022, the claimants wrote to the respondent and the Tribunal seeking to apply to amend their claims.[34]The applications for permission to amend their Grounds of Complaint were contained in a relatively short email from the claimants’ legal representative. The email addressed, generally, the applicable principles before seeking in general terms ‘permission to amend to include the Further and Better Particulars provided as set out’.[35]The application observed that if the respondents objected to the amendment, leading to a further preliminary hearing, the claimants ‘reserved their right’ to ‘expand further on the above’ ‘in accordance with legal principles’.[36]Appended to that email were two documents, one in respect of each claimant, entitled ‘Further and Better Particulars’. Appended to those documents were yet further documents. 10.5 Reserved judgment with reasons – rule 61 6 March 2017[37]The ‘Further and Better Particulars’ might be described as a composite document, each 7 pages long and containing an attempt to explain the basis upon which the disclosures were said to tend to show a breach of a legal obligation, an explanation for why the disclosures were said to have been made in accordance with s.43G and an attempt to address time points generally.[38]The second half of each set of Particulars relate to the issue of detriments. Both claimants alleged that they had suffered further or additional detriments. Some of those detriments were contained in the ‘Further and Better Particulars’ whilst others, it was said, were to be found in the appended documents. As with their Grounds of Complaint, the claimants repeated their contention that detriments said to be contained in the appendices were ‘deemed to be incorporated’ by the very fact of their attachment. Again, the ‘Further and Better Particulars did not identify the detriments said to be contained in the appended documents.[39]Save for the matters described above, the documents were confoundingly difficult to follow. It is easier to describe what the documents did not contain, than what they did contain. The word ‘detriment’ whether appearing in the Further and Better Particulars, or in its appendices, was not used, or at least not used consistently, in the statutory sense. It was not possible to identify with any confidence the facts conveyed as background information and those that were said to amount to an unlawful detriment. No attempt was made to distinguish between detriments – if any – that were said to have occurred before presentation the claim form, and those which were said to have occurred, or were only discovered, after the presentation of the claim form. No attempt was made to clarify any detriment already said to be contained in the original pleadings.[40]Dr Aftab appended three documents to his ‘Further and Better Particulars’. Two of those documents were further grievances about the second and third respondents and that he had submitted to the first respondent on 6 December 2021. The third document was dated 18 February 2022, and was described to the Tribunal as the claimants’ joint appeal from Prof Przyborski’s decision, although the ‘Further and Better Particulars’ equally suggested that the document contained complaints about Prof Przyborski. The appendices amounted to 31 pages in total.[41]Prof Scarpa’s ‘Further and Better Particulars’ followed a similar format to that of Dr Aftab, save that it appended only the 10-page joint appeal document. 10.5 Reserved judgment with reasons – rule 61 7 March 2017[42]As before the ‘Further and Better Particulars’ and their appendices adopted a dense narrative style that was presented in a format and a manner that did not permit a confident understanding of what, precisely, was being complained about in these proceedings.[43]Neither the application to amend, nor the appended documents made any mention of the orders of EJ Langridge. Amended Grounds of Resistance[44]The respondents did not write to the Tribunal, as permitted by EJ Langridge, to seek further direction about the detriments, but instead on or round 13 July 2022 simply filed their Amended Grounds of Resistance. In it, they: accepted the first two disclosures amounted to protected disclosures; denied that Disclosures Three and Four amounted to protected disclosures; contended that the University Regulations did not amount to a legal obligation; contended that the Pakistani institutes were not ‘responsible persons’ for the purposes of s.43C ERA.[45]The respondents pleaded their response to those detriments explicitly pleaded in the Grounds of Complaint.[46]As to the contention that further detriments were contained in the appended grievances and thereby ‘incorporated’ into their pleadings, the respondents pleaded as follows: ‘we contend that it is not for the respondent to multiple documents [sic] created for an entirely different purpose, to identify which factual allegations constitute specific detriments for the purposes of their claim under section 43B Employment Rights Act 1996. We suggest that it would be a disproportionate use of time and cost and will not assist the Tribunal to respond to each allegation set out in the appendices to the Additional Particulars. For the avoidance of doubt, however, the claimant’s claims strongly denied…’. (emphasis applied).[47]In advance of a further case management hearing, the parties prepared in a joint agenda. In it, the claimant stated that they had made an application to amend on 13 June 2022 to include ‘further and additional detriments’. The respondents confirmed that although they had no objection to that application they ‘reserved their position in relation to the . . ‘incorporation’ of grievances and grievance appeals’. Second Case Management Hearing – 7 September 2022[48]On 7 September 2022, a further case management hearing took place, before me. 10.5 Reserved judgment with reasons – rule 61 8 March 2017[49]The claimants attended by their named legal representative. The claimants were unable to identify, whether from their pleadings or otherwise, the information said to amount to a disclosure of information in relation to Disclosures Three and Four, nor any of the detriments alleged other than those expressly contained in the Grounds of Complaint. The claimants maintained, however, that further detriments were contained in the documents appended to the Grounds of Complaint, but they could not identify what they were, nor the grounds on which they were ‘deemed to be incorporated’ into the pleaded case. The claimants were unable explain the basis upon which the University regulations amounted to a legal obligation. They suggested that the parties should be simply left to narrow the issues between themselves before the Final Hearing.[50]The claimants were ordered to provide the information said to have been disclosed, by identifying the precise words relied upon in relation to Disclosures Three and Four and by cross referencing to the original documents for ease of reference, there being no indication from either party of the length of the documents said to contain the disclosures. The claimants were ordered to identify the source of the relevant legal obligation.[51]They were ordered to identify each of the detriments the claimants relied upon and that were said to have been ‘incorporated’ by appending documents to the Grounds of Complaint or Further and Better Particulars. The claimants were informed that reliance on the narrative style contained in their documents served to obfuscate the essential legal and factual issues. They were reminded of their obligation to identify their complaints by pleading only the necessary facts to enable the respondent to understand the complaint made, by explicit reference to paragraphs 10-12 of the judgment of HHJ Tucker in C v D [2019] UKEAT 0132 19 109. I find that the claimants knew of their obligation to identify only the essential facts necessary to understand the detriment alleged and that this is what they were being ordered to do.[52]Finally, the claimants were ordered to set out their case as to why detriments said to have been contained in appended documents were ‘incorporated’ and did not require permission to be relied upon.[53]Other aspects of the claimants’ cases were discussed at length and in detail to ensure that both parties understood other aspects of the claimants’ case. There was a discussion about avoiding the unnecessary proliferation of documents masquerading as pleadings but taking matters no further forward. Further directions were made for the respondent to provide a response to the information 10.5 Reserved judgment with reasons – rule 61 9 March 2017 provided by the claimants as well as directions for the preparation for a Final Hearing. It was to take place in June 2023 and given a time estimate identified by the parties of 10 days.[54]On 8 October 2022, the claimant sought an extension of time to provide the information ordered of them; they observed that they had not yet received a case summary of the last hearing but observed that Dr Aftab and Prof Scarpa’s pleadings currently stood at 103 and 54 pages respectively and that further time was required to ensure that the detriments were set out in a ‘concise and comprehensive way’. Second Application to Amend and Schedule of Loss - 14 October 2022[55]On 14 October 2022, the claimants made a second application to amend their claims.[56]As with the earlier application, in June 2022, a short email contained the application itself, expressed in general terms, to which were appended documents said to contain the amendments sought.[57]Each claimant submitted a new document, entitled ‘Further and Better Particulars of Complaint - 14 October 2022’. It contained what appeared to be all detriments said to have been alleged to date – whether appearing in the Grounds of Complaints, or the ‘Further and Better Particulars’ provided in June 2022, or in any of the documents appended to either document. The new document also contained further detriments, in respect of which permission was said to be sought and, in the case of Dr Aftab, further allegations of contraventions of the Equality Act, which he maintained he did not seek, nor require, permission to advance.[58]In Dr Aftab’s case, the detriments were contained in a 35-page document comprising 149 paragraphs and in Prof Scarpa’s case, a 22-page document containing 98 paragraphs. They consisted of a narrated account contained in often lengthy paragraphs of half a page or more.[59]The respondents later described this document as amounting to little more than an exercise in cutting and pasting passages contained in earlier documents; I agree that what was provided was a significant departure from what was ordered, and discussed at length at the September hearing; indeed, counsel for the claimants described this as ‘the first consolidated document’. It is not possible to identify with any confidence the matters the contents of these documents that were said to form part of the background facts, and those which are relied upon as amounting to an 10.5 Reserved judgment with reasons – rule 61 10 March 2017 unlawful act and nor was it suggested, at least not on any compelling basis, that it was possible to understand the claimants’ case from this document.[60]On the same date, the claimants submitted their schedules of loss; Dr Aftab sought an award of £293,561.33 and Prof Scarpa sought £317,500.[61]On 25 November 2023 the claimants purported to comply with the orders made at the hearing on 7 September 2022. They did not, as required, provide the precise words relied upon in their written disclosures that were said to amount to a protected disclosure, or cross reference them with the original documents. They did not provide the source of the legal obligation relied upon. In response to the order to explain the basis of their argument that the detriments said to be included in the appended grievances were ‘incorporated’ into the pleadings, the claimants claimed that the observations of HHJ Tucker in C v D, were inapplicable here, since this was not a case in which the details were presented in a witness statement narrative style and that this was a case in which the detriments contended for were obvious.[62]On 15 December 2022, the respondents responded. They said it was ‘neither possible nor proportionate to submit an amended response following receipt of the claimants Further Particulars of 14 October 2022’. They described the document as amounting to little more than an exercise in cutting and pasting previous documents, something that was wholly at odds with the need for concision and specificity that, they said, the tribunal had gone to significant lengths to impress upon the claimants at the previous hearing. They maintained that the narrative style adopted in the Grounds of Complaint ‘places the onus on the Tribunal and the respondent to pick through reams of documentation in order to identify the specific legal issues’. They said that this had been ‘compounded still further by continuation by the continued unreasonable approach of the claimants in continuing with the dense narrative style ignoring the clear guidance of the Tribunal’. They said despite the procedural history, and ‘significant time and cost being incurred, the parties are no further forward’. They ‘suggest[ed] that the claimants conduct of this litigation is unreasonable and, while no specific applications are made by the respondent in that respect of this stage, the current approach cannot continue indefinitely’. They sought a preliminary hearing. Third Case Management Hearing - 24 January 2023[63]A third case management was held, at the respondent’s request, and by coincidence, again before me. 10.5 Reserved judgment with reasons – rule 61 11 March 2017[64]The claimants again attended by their legal representative, albeit a different solicitor of the law firm. When asked why the previous orders had not been complied with, they explained that there was ‘an understanding’ that the previous wording adopted by the claimants was sufficient. The claimants were informed that this was not an adequate or acceptable explanation.[65]The claimants sought further and detailed guidance, they said, to understand where the claimants had not met the standards required of them and emphasising a desire to put their house in order. The hearing took longer than the previous hearing. On this occasion the claimants identified different perpetrators for the detriments contained in their Grounds of Complaint. The claimants were informed that it was a matter for them to decide whether they required permission to amend, and not a matter for the Tribunal or the respondent to attempt to decipher the evergrowing number of documents to anticipate the complaints that may be contained in them. They were informed that the state of the complaints was unacceptable.[66]Previous orders were repeated, albeit in greater detail than before. On this occasion, the claimants were ordered to identify the ‘specific detriment’ complained of, by identifying ‘the specific act or omission’. The claimants were given verbal examples of how to express a detriment concisely. Compliance was ordered by 8 February 2023. They were not, as the claimants now contend, effectively ordered to re-plead their cases; they were required to identify the disclosures of information that had not yet been provided, the date on which the detriments occurred, to identify the alleged perpetrator and to identify the document said to contain the allegation to provide an audit trail of each detriment sought to be relied upon.[67]For the avoidance of doubt, at no stage were the claimants required to reduce the number of detriments alleged, no number even having been indicated at this stage, only to identify them.[68]In his oral submissions, Mr Flood suggested that the mischief the claimants faced was an ever-moving target given the ever increasing number of detriments faced. If by that the claimants were referring to the grievance procedure, I disagree. EJ Langridge agreed, at the parties behest, to an informal stay on the proceeding until the grievance outcome was known and subsequently the parties appear to have agreed between themselves for the litigation to remain in abeyance until such time as the appeal was known; the grievance proceedings did not present the claimants with an ever moving target. I can identify no detriments in the ‘second consolidated document’ or the final set of pleadings settled by Mr Flood that suggest the claimants contend that they suffered any detriments beyond the grievance process, nor is it apparent that they only became aware of any such detriments after the process concluded; I was not taken to any such examples. 10.5 Reserved judgment with reasons – rule 61 12 March 2017[69]The matter was set down for a public preliminary hearing to consider any applications to amend, as well as to consider the prospects of success of the claims and the making of any consequential orders. The date of the preliminary hearing was identified at the hearing, but subsequently deferred by two weeks, to accommodate the availability of the respondents’ counsel of choice. The Second Consolidated Document[70]On 8 February 2023, the claimants submitted a further document in compliance with Tribunal orders. It contained further information about the disclosures themselves and a relatively more concise list of detriments – 24 pages of detriments in the case of Dr Aftab and 13 pages of detriments in the case of Prof Scarpa – each providing dates of the incidences complained of and identified the alleged perpetrator as well as where in previous documents the allegation could be found. This was later described by Mr Flood as the ‘second consolidated document’. The claimants accept that this was a lengthy and factually dense document but maintain that was in the nature of the task set of them. I add that not only did it contain a dense narrative style that the claimant had been instructed to avoid, numerous allegations made it difficult to identify whether what was being identified an allegation of poor treatment or a detriment on the ground of a protected disclosure, albeit a weak one which might attract a strike out or deposit order e.g. that the line of questioning by Prof Pryzborski ‘suggested’ that he had not read the grievance document, or that he mentioned ‘feelings’ ‘without providing evidence to substantiate them’. Other allegations required further information, for example, the second respondent ‘ignored eight verbal and written requests’.[71]On 22 February 2023, the respondents submitted their response. Having audited the documents provided by the claimants to date, they set out, in a table format, using different coloured text for ease of reference, relevant information about each disclosure and each detriment, identifying where they contended permission to amend was required and setting out their objections.[72]Mr Flood of Counsel was instructed on behalf of the claimants in the days preceding the preliminary hearing. Late on the evening before the preliminary hearing, Ms Millns for the respondents received what was described as a skeleton argument and chronology prepared on behalf of both claimants. In their skeleton argument, the claimants indicated that they relied on different parts of their written disclosures than previously indicated to establish a disclosure of information. They continued to rely on their contention that a breach of the University regulations amounted to a breach of a legal obligation, but they also sought to revive reliance on alleged breaches of legal obligations which appeared to have been abandoned, such as the allegation that their intellectual property rights had not been 10.5 Reserved judgment with reasons – rule 61 13 March 2017 acknowledged, protected or enforced, and ‘potential plagiarism’. Their detriments were amended, and set out in a chronology, which whilst containing errors in transcription that made it impossible for Ms Millns to follow, was not a material feature in the request for, or granting of, an adjournment of the hearing.[73]Dr Aftab withdrew his Equality Act claim. The claimants accepted that the respondents could not be expected to proceed in the circumstances they found themselves in and Mr Flood recognised that his clients’ other claims required careful review and revision. The respondents described their position as ‘cornered’, unable to agree or resist the claimants’ application to adjourn the hearing, but they placed the claimants on notice of their intention to make a costs application. The hearing was adjourned at the claimants’ application and the final hearing listed for June 2023 was by agreement vacated.[74]On 28 April 2023, the claimants submitted draft grounds of complaint that were the basis of their application to amend. The proposed pleadings followed a structured and comprehensive format, addressing the essential legal and factual matters necessary to advance a complaint of whistleblowing detriment; they further indicated, for ease of reference, those matters in the respects in which permission was sought as well as where they believed it was not necessary to secure permission.[75]In their response of 24 May 2023, the respondents accepted some proposed amendments, and resisted others, in particular because to allow such an amendment would require yet further enquiry as to what was meant by the amendment.[76]On 12 May 2023, the respondents made an application for costs against the claimants. It was made pursuant to rule 76(1)(a), in that the claimants had in the conduct of the proceedings acted unreasonably and pursuant to rule 76(1)(c) on the ground that the claimant’s application for an adjournment was made fewer than 7 days before the day of the hearing.[77]In summary, they contended that the claimants, despite being legally represented throughout, had repeatedly failed to have regard to guidance, or comply with orders from the Tribunal by repeatedly adopting a prolix and dense narrative style that they had been specifically directed against using. The effect of doing so was to require the respondent and the Tribunal to scour the ever-growing number of documents in an attempt to understand how their cases might be put. The claimants had been reminded that they had only been ordered to provide the barest details necessary to understand their claims. They argued that the 10.5 Reserved judgment with reasons – rule 61 14 March 2017 claimants should have either complied with orders, or instructed counsel to review their claims if they were unable to articulate their own cases. They pointed out that now that counsel had been instructed, the claimants had finally accepted that there was a need to amend the claims, something that the respondents had been saying all along, leading to an inevitable last-minute adjournment. They pointed out that there were individual respondents who, some two years post issue, still did not know the case against them.[78]In their response, dated 24 May 2023, the claimants recognised that ‘there had been extensive case management of the claims so far’ but that it was their right to bring a claim in respect of all and any claims ‘where there is a stateable case’, and that right is not outweighed by ‘pragmatism’. They had made multiple and genuine attempts to better the pleadings, this was not a case where they have been negligent, rather, they said, they had ‘arguably done too much’. They did not accept that threshold has been met and the Tribunal because the claimants worked hard with Counsel to significantly reduce the number of detriments from ‘over one hundred’, in the interests are pragmatism and cooperation and with the overriding objective in mind; they said the matters giving rise to the application had effectively been resolved. Also recognising that the claimants and applied for an adjournment on the day of the hearing, that application was, they said, as the Tribunal recognised in its own case summary, ‘somewhat inescapable’. Other submissions were made about the exercise of discretion, means and quantum.[79]On 31 May 2023, there was a preliminary hearing at which the claimants sought permission to amend their claim in line with their proposed amended pleadings. Neither claimant physically attended the hearing; they elected to attend via CVP. That necessitated significant breaks in the hearing to enable Mr Flood to take instructions from each of his lay clients and his professional client. No orders were made at the conclusion of the hearing; aspects of the proposed pleadings required clarification or revision and there were some simple errors in presentation requiring correction. For the avoidance of doubt, the fact of administrative errors was not only unsurprising, but to be expected, given the volume of information to be marshalled, and they form no part of the respondents’ application for costs.[80]The hearing resumed on 1 September 2023; by now Mr Flood represented only Dr Aftab; Prof Scarpa acted in person but indicated that he was content to rely on submissions made by Mr Flood on behalf of his colleague. Some momentum was lost in the intervening period; after discussion, some different amendments were sought, including a change in the qualifying person to whom Disclosures 3 and 4 were made. After review, submissions were heard. On 3 November 2023, orders were made on the application to amend and case management directions were given to enable the parties to prepare for a final hearing. The claimants were to 10.5 Reserved judgment with reasons – rule 61 15 March 2017 proceed with approximately 20 detriments each. The time estimate was now identified by agreement as 15 days. The respondent’s costs application commenced on 5 January and submissions completed on 25 March 2024. The respondents made oral submissions; the claimants made oral and written submissions. Deliberations and Conclusions Threshold Test[81]I begin with the question whether the claimant’s conduct of the proceedings reached the threshold of unreasonableness in rule 76(1)(a).[82]The respondents contend that the claimants’ unreasonable conduct commenced at the second preliminary hearing that took place on 7 September 2022 when they were unable to explain the disclosures and detriments in their own claims.[83]It is conceivable that a legally represented party attends a preliminary hearing unable to explain the basic aspects of their own pleaded case and for that not to amount to unreasonable conduct, but I agree with the respondents that this was not one of those instances.[84]The claimants’ pleaded reliance on unidentified detriments contained in their grievances demanded, from the outset, clarification. The claimants were subject to an order made by EJ Langridge to provide that clarification; they did not do so. They compounded the problem when in June 2022 when they sought to amend their claims by referring to yet further unidentified detriments in yet further documents. The respondents had made their position clear in their Amended Grounds of Resistance, namely that it was it was not their duty to seek to identify what was being alleged, nor was it a proportionate use of their time to seek to address all potential allegations; in short, they were not prepared to guess the case against them and they pointed out, fairly and properly and undeniably that, nor was the onus on them to do so. It was for the claimants to inform the respondents of the case against them.[85]On 7 September 2022, therefore, in breach of the orders of EJ Langridge and with an outstanding application to amend their pleadings to be determined, the claimants attended the second preliminary hearing in these proceedings. They were unable to articulate at that hearing their case in relation to the detriments they sought to rely on, other than those expressly pleaded in their Grounds of Complaint. It was open to the claimants to abandon reliance on any other detriments, but they elected not to do so. At the hearing, therefore, they 10.5 Reserved judgment with reasons – rule 61 16 March 2017 maintained reliance on detriments said to be contained in various documents, that they were unable to identify nor explain how, once identified, they acquired, as they had themselves pleaded, the status of a pleaded case.[86]The claimants submit that because the respondent did not specifically state in the joint agenda preceding the hearing in September 2022 that they lacked comprehension of the claimants’ cases, that that ‘demonstrates that both parties understood the issues’.[87]Starting with the claimants’ understanding of the issues. If they had understood the issues, one might expect them to have explained their cases when asked at the hearing on 7 September 2022, but they were not able to so, something that Mr Flood could characterise only as ‘unfortunate’. If, as they subsequently represented to the tribunal, the claimants were advancing ‘over one hundred’ detriments, it was difficult to understand how they suggested a ten day time estimate was appropriate for the disposal of their claims.[88]As for the respondents’ understanding, the claimants suggest that prior to the hearing on 7 September, the claimants made no complaint about the style of claimants’ pleaded case. That is simply incorrect. The respondents could not have been clearer about their position in their Amended Grounds of Resistance. They drew the Tribunal’s attention in the joint agenda to the ‘incorporation issue’. It seems that the suggestion made by the claimants is that the respondents did not complain loudly enough about the state of their pleadings.[89]I conclude that, against the specific litigation history of this case, the claimants acted unreasonably when they attend the hearing on 7 September unable to identify the disclosures of information said to have been made in respect of two of the four disclosures said to have been made and unable to identify the detriments they sought to advance, other than those contained in the Grounds of Complaint.[90]At the hearing, the claimants were ordered to provide the precise words relied upon as amounting to a disclosure of information. The claimants did not comply. The respondents placed the claimants on notice that in their correspondence of 15 December 2022 that they regarded the claimants’ failure to advance their claims amounted to unreasonable conduct. Notwithstanding this the claimants did not provide the information ordered, and attended the next preliminary hearing, on 24 January 2023, armed only with an explanation that was, on any reasonable view, unacceptable. They did not fail to comply because of a claimed inability or lack of understanding, but rather their explanation was that they did not comply because of ‘an understanding’ that what they had done was sufficient i.e. they decided not 10.5 Reserved judgment with reasons – rule 61 17 March 2017 to comply. I conclude that the claimants’ failure to comply with orders requiring them to provide further information in relation to Disclosures 3 and 4 was unreasonable.[91]I have reflected on the fact that the orders requiring the claimants to provide a list of detriments did not explicitly direct the claimants to provide information by providing only the essential facts necessary for the respondents to understand the case against them. I have considered whether that is a matter that is relevant or significant in the assessment of whether the failure to comply with those orders was unreasonable. I conclude that whilst relevant, it was not significant to in the assessment that their failure to comply with those orders was unreasonable. First, the orders were not drafted as, or intended to be, anything approaching an unless order. Second, the claimants, who attended the hearing on 7 September 2022 by their legal representative were left in no doubt as to what was required of them by way of compliance. Detailed discussions were had about what was, or was not, an acceptable manner in which to plead a case. Third, they were capable of expressing detriments in an appropriately concise manner, just as they had in their Grounds of Complaint. They did not do so when ordered to do so on 7 September 2022, however.[92]I cannot disagree with the respondents’ characterisation that what was produced by the claimants in response to the orders was, in essence, an exercise in cutting and pasting into one document paragraphs of text in which they complained about their treatment. Where the detriments said to be relied upon were expressed in paragraphs which exceeded on occasion half a page in length, it was not possible to decipher, with any reliable confidence, the specific complaints made. The detriments were still not in a state that could be sensibly responded to or determined. Mr Flood suggests that what the claimants produced was the inevitable outcome of being given ‘a big piece of work’. I disagree. At the time there was no indication of the number of detriments said to be relied on and the claimants were informed, insofar as legally represented parties needed to be informed, that the problem was the volume of unnecessary detail that served to obfuscate the essential complaints. I note that the claimants averred in their correspondence of 25 November 2022 that the observations in C v D were inapplicable to their case because, they said, they believed that the detriments they sought to rely upon were clear. It appears that they simply disagreed with the Tribunal’s approach.[93]In summary, whereas the orders may have been more robustly expressed, that was not a significant, or it appears, any factor at all, in the claimants’ noncompliance. 10.5 Reserved judgment with reasons – rule 61 18 March 2017[94]I conclude that the claimants’ response to the orders made at the hearing on 7 September 2022 was unreasonable in that they(a) failed to comply with the order requiring them to identify the precise words said to amount to a disclosure of information without acceptable explanation and(b) that they failed to identify each detriment relied upon as required and discussed at the hearing itself.[95]That failure led to a further preliminary hearing on 24 January 2023 when further orders were made, at the claimants’ request.[96]The claimants submit that there is an element of ‘gamesmanship’ on the part of the respondents, in the criticisms they made of the claimants in their correspondence of December 2022. They contend it amounts to an attempt to ‘weaponise the tribunal’s well meaning attempt to distil the claimants’ case’. I consider that to be unfair criticism of the respondents’ approach. Their response in December 2022 was not only appropriate, but undeniably necessary – the matter could not sensibly proceed to a final hearing in its current state. Further, whilst they expressed their view that the conduct was unreasonable, they expressly declined to make an application for costs. On this occasion, it seems, the respondents are charged with complaining too loudly about the state of the claimants’ cases.[97]The claimants did, as ordered, identify the date, the alleged preparator and identify, as against previous documents, where it was first cited, making the information somewhat more navigable. But the format was contrary to detailed and lengthy verbal instructions given at the hearings on 7 September 2022 and 24 January 2023, its narrative style demanding unnecessary time be expended on it. The claimants substantially failed to comply with the orders of 24 January 2023 and this was unreasonable.[98]The application to postpone the hearing on 12 April 2023 was made on the day of the hearing itself; the threshold requirements of rule 76(1)(c) are therefore met.[99]In addition, I observe that the respondents were unaware of the claimants’ intention to revise their claims at the hearing on 12 April 2023 until immediately before it. Given the size and complexity of the claims, those actions alone were very likely to the hearing being ineffective. On that date, the claimants attempted to provide to the respondents and the tribunal a table / chronology of the detriments relied upon. It should not have taken the claimants two years after the presentation of their claims to provide clarification. The chronology, in my view, amounted to an woefully belated attempt to provide the clarification the claimants had first been ordered to provide by EJ Langridge at the first preliminary hearing in November 10.5 Reserved judgment with reasons – rule 61 19 March 2017 2011. I conclude that it was more likely than not that the information was provided only once the claimants understood that they were at risk of strike out or deposit orders being made.[100]No explanation was forthcoming as to why they behaved as they did. The claimants had time to either seek an adjournment of the orders or the hearing to allow them to instruct counsel; the respondents had sought an adjournment to do just that. The consequences of their failure to properly notify the respondents of their intention to revise their claims would have been known to the legally represented claimants. They allowed the respondents continue to work towards a hearing on a basis that was not to be, or even may not have been, the basis on which they presented their case. Their conduct was disrespectful to both the respondents and the tribunal. To compound matters, almost two years after the presentation of the claims, two individually named respondents, one of whom had since retired, were still unaware of the allegations being made against them. I consider their conduct in failing to provide adequate notice to the respondents of their intention to revise their claims to be unreasonable.[101]The respondents contend that the unreasonable conduct continued when the claimants sought to amend their claims at hearings on 31 May 2023, 1 September 2023 and 3 November 2023. I do not accept that the fact of an application to amend, without more, amounts to unreasonable conduct, particularly where the themselves had contended in their Amended Grounds of Resistance that the claimants’ claims required significant clarification.[102]I accept that it ought not have taken the claimants two tribunal hearings, being 31 May 2023 and 1 September 2023, to present a properly formulated application to amend. Although the claims were lengthy and complex, the claimants are intelligent and articulate individuals who were represented by specialist employment solicitors from the inception of their claims almost two years prior. There was nothing before me to suggest that they were incapable of instructing counsel at some sooner point, if assistance was required to marshal their cases. But the fact of the matter remains that the Mr Flood’s ability to make progress was hampered at the hearing on 31 May by the physical absence of his professional client who is based in Scotland and for whose convenience a CVP hearing link was arranged, as well as the claimants who attended remotely despite themselves being based locally.[103]I therefore accept that it was unreasonable for the claimants to require a hearing on 31 May 2023, in addition to subsequent hearings, to present their applications to amend. 10.5 Reserved judgment with reasons – rule 61 20 March 2017[104]I decline to find that any conduct after the hearing on 31 May 2023 can be properly characterised as unreasonable conduct. The respondents had, in their Amended Grounds of Resistance, called for greater clarity in the claimants’ pleaded case; in December 2022, they contended that the present lack of progress could not continue indefinitely and in their costs application they contended that if the claimants’ legal representatives were unable to articulate their claims, they should have instructed Counsel. All these concerns were met, effectively, after 31 May 2023.[105]Standing back and looking at the overall picture, the claimants’ unreasonable actions caused the respondents to incur unnecessary and avoidable costs for 9 months, during which time they made little to no progress, neither able to defend an unknown number of claims against them nor able to advance their own case in respect of the claims that were known and with no prospect of reaching a final hearing. Exercise of Discretion[106]I move on then to the second issue, which is whether I should exercise my discretion to make a costs order based on the claimant’s unreasonable conduct of the proceedings as I have found it to have been and if so, in what amount or for what period. I have a broad discretion what to do, and I have considered the nature and extent of the unreasonable behaviour, what effect it had (recognising that there is no need for a precise correlation) and the overall context.[107]The claimants’ failure to identify the disclosure of information relied upon in Disclosures Three and Four whether at the hearing on 7 September 2022, although unreasonable, made little impact on the litigation process. The respondents had, by that date, already accepted that Disclosures 1 and 2 amounted to protected disclosures and those detriments that were pleaded in the Grounds of Complaint had been responded to. There were, therefore, by 7 September 2022, identifiable claims that were capable of being determined. Furthermore, the claimants’ non-compliance with orders requiring further information about Disclosures 3 and 4, although lacking in any acceptable explanation did not, in fact, make any significant impact on proceedings. They were written disclosures contained, it transpired, in relatively short documents, and were matters that could be addressed without delaying the proceedings as, in fact, they were. Therefore, notwithstanding that the conduct was unreasonable and the failure to comply with tribunal orders in this specific regard was without permissible excuse or explanation, in these specific circumstances, I consider that those failings had a negligible impact on the proceedings. 10.5 Reserved judgment with reasons – rule 61 21 March 2017[108]By contrast, however, the claimants’ repeated inability – and as I have found above, at times, apparent refusal - to articulate in an acceptable manner the detriments they relied upon I have little difficulty in concluding did cause a significant adverse impact on the litigation history, I find, from the hearing on 7 September 2022 until 30 May 2023, for the reasons that follow.[109]The Grounds of Complaint pleaded that further detriments were to be found in the claimants’ grievance documents, 120 pages in total, and that they had been attached ‘for brevity’. That was nonsense. The claimants knew what was required of them and they knew how to articulate the detriments in an acceptable way. They did not do so. At no stage before the amendments proposed by Mr Flood, did the claimants ever identify even the number of detriments, and therefore the number of claims they sought to advance. The most charitable interpretation of the claimants’ pleadings is that the grievance documents were appended to their Grounds of Complaint for their own convenience. They were created for an entirely different purpose and were wholly unsuitable for use as an expression of their legal claims. I agree with and endorse the respondents’ description that the effect of those actions was to place upon the respondents the onus of working through those documents to identify what may be advanced as a claim, and to respond to them in order to safeguard their position. The claimants will have known this; indeed, they have maintained throughout these proceedings that the grievance documents contain elements of their complaints.[110]The first failure to articulate the claimants’ detriments other than those expressly pleaded in their Grounds of Complaint, was at the hearing on 7 September 2022.[111]Mr Flood invites me to decline the exercise my discretion in relation to this hearing because, he argues, a case management hearing would have been required in any event. I consider his point to be, in principle, sound, and for that reason excluded from my conclusions any consideration of costs orders in relation to the hearing on 3 November 2023 when effective case management orders were made. But Mr Flood’s submission about the hearing on 7 September 2022 might have been fortified had any aspect of that hearing i.e. the preparation for it, the time spent in it, and the consequences of it, led to some progress of the claimants’ case. The hearing effected no such progress. No detriments – other than those the respondent had already pleaded to in their amended Grounds of Resistance – were identified at the hearing, or subsequent to that hearing in compliance with the orders made. What was sought of the claimants was the bare essentials required to understand the claims they were bringing before proceeding to a final hearing i.e. the disclosures and the detriments; that is the level of detail that might be 10.5 Reserved judgment with reasons – rule 61 22 March 2017 demanded of a unrepresented party, rather than two highly educated professionals with access to specialist lawyers.[112]Had the claimants complied with the orders in relation to the detriments that they sought to advance, other than those expressly pleaded in their Grounds of Complaint, that were made at the hearing on 7 September 2022, the final hearing set down for June 2023 would, more likely than not, have proceeded. It did not and was subsequently vacated.[113]It was the claimants’ consistent inability or refusal to articulate with precision the detriments that they contended formed part of their case that led to the respondents incurring further, unnecessary and avoidable, costs thereafter.[114]The claimants sought, and were provided, at the next hearing which took place on 24 January 2023, with a further opportunity to state their case. That led to partial compliance of the orders, in the production of the ‘second consolidated document’.[115]Mr Flood submits that the second consolidated document, in particular, was capable ready comprehension, and required only that the respondents apply their minds to the document; it was simply a matter of ‘leg work’ by which I understand him to mean that had the respondents expended the time and effort of doing working through that document, they would have understood the detriments alleged. Setting aside, for a moment, whether it was incumbent on them to do so, that is precisely what the respondents attempted to do by producing a table setting out their understanding of the disclosures and detriments in preparation for the hearing on 7 April 2023. Further, if the second consolidated document was capable of such ready comprehension, one might, as Ms Millns submitted, have expected the claimants to recount them to the tribunal on 12 April 2023, rather than seeking to adjourn the hearing altogether.[116]Whilst Mr Flood submits that the comprehension of his clients’ cases was simply a question of effort, those instructing him suggest in their written response to the costs application that the time expended by the respondents in preparing a table of allegations was ‘wholly voluntary’, not required by order of the tribunal and therefore not attributable to the claimants’ conduct. I consider that to be an unattractive submission. The claimants had produced, in their second consolidated document, something purporting to contain the detriments that they intended to rely upon, some of which were the subject of applications to amend and all of which were to be considered at the forthcoming public preliminary hearing. The respondents’ legal representatives had a duty to their own clients to prepare for the hearing and they had a duty to assist the tribunal in the furtherance 10.5 Reserved judgment with reasons – rule 61 23 March 2017 of the overriding objective; they are not passive observers to the litigation process. Put another way, they are expected to, as Mr Flood submitted, ‘roll up their sleeves’. Efforts made by the respondents’ representatives to encapsulate the claimants’ case, whether for their own better understanding, that of their clients, their counsel or the tribunal at the forthcoming hearing was a necessary and appropriate response to the claimants’ further information and was directly attributable to the claimants’ own efforts to provide a list of detriments sought to be advanced. The effect of the claimants’ partial compliance to the orders made was to put the respondents to additional and avoidable time and expense. Having regard to the detailed schedule of costs submitted by the respondents, the majority of their costs over the period concerned were incurred after 8 February 2023.[117]I turn to the hearing on 12 April 2023, which was postponed on the claimants’ application, on the day of the hearing. The claimants attended that hearing giving no effective notice to the respondents that they intended to revise their claims yet again. Those actions alone would have led to the hearing being ineffective. No explanation was forthcoming as to why they behaved as they did. The claimants had time to either seek an adjournment of the orders or the hearing to allow them to instruct counsel; the respondents had sought an adjournment to do just that. The consequences of their inaction would have been known to the legally represented claimants. They allowed the respondents incur further costs by continuing to work towards a hearing on a basis that they either knew was not to be, or may not have been, the basis on which they presented their case at the hearing.[118]The claimants’ application to postpone on the day of the hearing was acceded to by the respondents who, I accept, had little alternative. The effect of doing so was to require the respondents to effectively abandon what preparation they had already undertaken in order to start again. I exercise my discretion to make a costs order in the respondents’ favour in relation to costs incurred as a consequence of this ineffective hearing on both applicable grounds.[119]I have concluded above that the claimants’ conduct in requiring a hearing on 31 May 2023 amounted to unreasonable conduct because it should not have taken professionally represented parties two years after the presentation of their claims an additional hearing date to present their proposed amendments. I have considered whether it is appropriate to exercise my discretion to make a costs order in respect of this hearing and have concluded that it is not appropriate to do so, for the reasons that follow.[120]What the tribunal required of the claimants in order to proceed to a final hearing was confirmation of Disclosures Three and Four , and a comprehensive list of 10.5 Reserved judgment with reasons – rule 61 24 March 2017 detriments alleged. Those were the barest of details required to identify the claims brought.[121]Ultimately, however, what the respondents in fact received from the claimants once they had instructed Counsel was, in due course, a comprehensive set of pleadings. On 31 May 2023, the proposed amended claims were subject to detailed scrutiny by the respondents, who attended by their Counsel only, and the tribunal to ensure that the pleading were clear and comprehensive, that any errors were addressed and that no further or additional information was likely to be required in future. That process of stress testing ensured that the following hearing, on 1 September 2023, was effective. Submissions were made by both parties on a set of pleadings settled by Mr Flood that were admirably clear, comprehensive, structured and succinct; it contained all of the necessary legal and factual constituent parts of the claimants’ public interest disclosure detriment claims.[122]I make clear that nothing I say should be construed as an endorsement of avoidable frustration, wasted time and delay caused at that hearing, but I am here concerned with question of the impact of the unreasonable conduct on the respondents’ costs; I made my views perfectly clear during the hearing itself and do not intend to repeat myself here. I take the view that notwithstanding the above, the costs of that hearing were and are likely to result in a considerable net saving in the time and costs for the respondents going forwards. For those reasons, I decline to exercise my discretion to make a costs order in relation to the hearing on 31 May 2023. Means and Apportionment[123]Although there was some suggestion in the claimants’ written response to the costs application that they sought to place evidence before the tribunal of their means, and directions were given to enable them to do so, at the hearing on 5 January 2024, both claimants verbally confirmed that they did not intend to provide evidence of their means.[124]Neither the respondents nor the claimants drew any distinction between the claimant when considering their respective conduct leading to any costs orders made. I do not consider any distinction can be properly drawn and therefore proceed on the basis that any order for costs should be borne in equal amounts.[125]The claimants accepted that the limit on a summary assessment of £20,000 was applicable to each claimant individually rather than the totality of any costs order 10.5 Reserved judgment with reasons – rule 61 25 March 2017 made in these proceedings; although they were given time to reflect on the matter, neither claimant wrote to the tribunal seeking to depart from that position. Principle of Costs[126]I allow the respondents’ solicitors costs from 5 September 2023, being the date of preparation for the second preliminary hearing on 7 September 2023 until 30 May 2023, subject to summary assessment. I allow a notional deduction in recognition that some of work done is likely to have assisted the respondents in their preparation going forward. The identification of that amount is, necessarily and permissibly, an imprecise one. Negligible progress was made before 8 February 2023. Thereafter, once the claimants provided their ‘second consolidated document’ the information contained therein was at least navigable. Having regard to Mr Flood’s submission that the document indicated – by reference to the number of paragraphs, rather than the substance of the information contained therein – 124 detriments, and having regard to the fact that each of the repleaded claims contained approximately 20 detriments each, I conclude that a notional discount of 15% on the respondents’ solicitor’s costs incurred after 8 February 2023 to reflect the fact that the respondents are likely to have derived some, albeit modest, value from their preparation time after this date and bearing in mind that a costs order is intended to be compensatory and not punitive.[127]I also allow disbursements in the form of Counsel’s fees for the conference on 20 March 2023 in preparation for the hearing on 12 April 2023, the brief fee incurred for the hearing on 12 April 2023. No submissions having been received on the principle of costs of the application, I allow Counsel’s fees and for the costs hearings on 5 January 2024 and 25 March 2024; the application itself taking the time it did whilst both Counsel and the tribunal attempted to navigate and interpret the various documents before them. Summary Assessment of Costs[128]The respondents’ costs schedule was considered and costs were assessed on the standard basis.[129]I accept that the nature and complexity of the claims required a Grade A fee earner to supervise the litigation, noting also that the claimants’ solicitor is a partner. The majority of the work in the period in consideration was carried out by a Grade B fee earner, and some carried out by Grade C and D fee earners. I note that the hourly rates charged to the respondents were significantly below the applicable guideline hourly rates for solicitors falling within National Band 1 i.e. central Newcastle. 10.5 Reserved judgment with reasons – rule 61 26 March 2017[130]The solicitors’ costs incurred between 5 September 2022 and 30 May 2023 amounted to £25,134.50. Consistent with their correspondence to the tribunal in December 2022, only a relatively modest amount of the total figure was incurred in the period before 8 February 2023. The majority of the costs were incurred after 8 February 2023, that is, after receipt of the ‘second consolidated document’ when significant time was spent reviewing that document preparing for the public preliminary hearing on 12 April 2023, including time spent on preparing bundles, considering the application to amend and liaising with Counsel. Of the amount identified above, £19,296.00 was incurred after 8 February 2023.[131]I am satisfied that the total figure was both reasonably and necessarily incurred as well as reasonable in amount. In the period in issue, no procedural steps were undertaken by the respondents in the advancement of their own cases; the respondents’ activity was dictated by and attributable to the claimants’ own, unreasonable conduct. None of the items identified in the respondents’ detailed schedule of costs appeared to be excessive in amount and none were challenged.[132]In addition, I allow Counsel’s fees as indicated above, noting that the claimants had also appeared by their Counsel on each of the dates identified and who was also instructed to conduct a conference with his clients. The amounts were both reasonably and necessarily incurred and were proportionate in amount, taking into account the length and nature of the hearings she attended. I allow a total of £7,333.[133]No VAT was claimed on the sums sought. Reducing the solicitors’ costs incurred after 8 February 2023 by 15% and apportioning the resulting figure together with disbursements for Counsel’s fees evenly between the claimants, I conclude that each of the claimants shall pay the sum of £14,786.55 to the respondents.[134]On 14 May Prof Scarpa emailed Prof Anbarci, with a copy to the new supervisors, on behalf of himself and Dr Aftab. He asked whether the Student had submitted the revised thesis and reminded him of the joint judgment which required them to conduct a second round of reading. He said they were looking forward to participating in the Board of Studies, also required by the joint judgment, to nominate appropriate examiners. A reminder followed on 18 May, sent to the same recipients plus also Prof Hart, pointing out the shortness of time available due to the fact that marking duties were upon them.[135]This prompted a series of emails in very quick succession. Almost immediately on receipt of the reminder email dated 18 May, Prof Anbarci forwarded it to Profs Ashworth and Renstrom and added Prof Damjanovic to the conversation. He asked them: “What is the current situation?” Prof Damjanovic replied to all and also copied in Simon Appleton (Assistant Registrar) and Profs Houston and Hart. She said she had received another “unexpected inquiry” from the claimants demanding a second reading of the Student’s thesis, and said: “In my opinion they completely misunderstand your instructions and they should be absolutely excluded from [the Student’s] affairs.”[136]Prof Damjanovic then wrote a second email, sent only to Prof Anbarci and the supervisors, saying she had asked Prof Houston for advice and “Until we get his direct instruction we should restrict Ashar and Ric from student’s affair”. She again expressed her views about the claimants in very strong terms: “In my opinion, the actions of Ric and Ashar should be classified as bullying and abuse of power. Should they persists troubling the student, I will demand appropriate actions formally.”[137]On 19 May Mr Appleton replied to Prof Damjanovic to say he had discussed her email with Prof Houston. He explained that the preference was to keep things on track if possible, and it was hoped that this could be accomplished by the new supervisors speaking with the former supervisors. He referred to the claimants having identified a number of concerns which had been rectified.[138]In her immediate reply (copied to Profs Anbarci, Hart, Renstrom and Ashworth), Prof Damjanovic expressed her opinion in opposition to what senior management had already agreed: “My strong view is that Aftab and Scarpa should be restrained from student’s affairs by the disciplinary action, which I consider is bullying and abuse of power. I think they should not receive any information about the student until his viva. The viva date, the name of examiners should be kept in strict confidentiality. In my opinion, it is not part of Thomas and John's job to communicate with Aftab and Scarpa. Thomas and John only need to help the student in his academic progress.”[139]More emails followed on 19 May. Unaware of Prof Damjanovic’s intervention, Prof Scarpa asked Prof Anbarci if he could “spare 10 minutes for a zoom talk any time soon”. He acknowledged that Prof Anbarci was very busy. A few minutes later, Prof Anbarci replied to point out that he was tied up in meetings until late that day, and did not know when he might have time. He suggested the claimants could speak to Prof Damjanovic or the other PhD co-lead. Prof Scarpa replied to clarify that he did not mean a meeting that day, and asked about other opportunities to meet. He said: “The issue I would like to talk to you unfortunately requires HoD attention/guidance. It is rather delicate.” In his reply Prof Anbarci said: “Our acting DoR, Dennis, is in charge of this matter. He'll contact you and Ashar very soon.” He did not explain what instructions he had given to Prof Dennis Phillip, or what his remit was in relation to the Student’s thesis. Only after multiple further emails were sent did Prof Anbarci say on 1 June that Prof Philip was filling in for him due to the pressure of work and meetings.[140]At the end of the day on 19 May the claimants emailed Profs Houston and Hart with a letter that became known as the Second Disclosure. The letter expressed their significant concerns about: “… the infringement of Durham University's LTH regulations as well as academic standards and integrity in assessment in the examination of [the Student].”[141]The letter disclosed four specific items of information, again alleged to be breaches of various sections of the LTH. The four items were that: the claimants had had no opportunity for a second read of the thesis, to ensure their contributions had been properly acknowledged in order to avoid plagiarism; they had been excluded from the process of appointing internal examiners; and an internal examiner had been appointed who did not have subject expertise. The fourth item of information was expressed as follows: “Moreover, it has been brought to our attention that [the Student], who has yet to sit his viva, would seem to have committed academic fraud by claiming to have completed his PhD from Durham University in 2019 and used this to leverage an academic position in the Institute of Business Administration, Pakistan.”[142]A link to the IBA’s website was included. The claimants' letter concluded: “We should not have to keep writing to you to enforce Durham University's LTH regulations and processes that safeguard academic standard and integrity in assessment; appropriate acknowledgement of intellectual property rights and contributions; as well as identification of potential plagiarism.”[143]The claimants attached their attribution report relating to the revised thesis, and asked for their concerns to be addressed urgently.[144]In the days following, an ongoing sequence of emails continued the discussion about the revised thesis.[145]On 20 May Prof Phillip emailed the claimants to pick up the content of their email of 14 May. He said he had been asked by Prof Anbarci to look into one of the points they had raised regarding plagiarism concerns. Prof Phillip said he had done an independent review of the thesis to ensure that the offending chapter was removed and proper acknowledgments given. He sought to reassure them that the resubmitted thesis was not plagiarised. He said he was not privy to the joint judgment, and so any remaining issues would have to be raised with Prof Houston and Prof Hart.[146]On 21 May Prof Scarpa replied to thank Prof Phillip. He expressed satisfaction with the removal of the chapter containing the joint paper. He attached an attribution report and requested that this be reviewed to ensure that the list of acknowledgements had been addressed. He referred to University protocols and the LTH, and said that he and Dr Aftab required specific attribution and acknowledgement of their IP rights. He asked that they be given the chance for a second reading, so they could be satisfied that their specific concerns had been dealt with.[147]Several emails were exchanged on 22 May, in overlapping time frames. At 11am the claimants emailed the Second Disclosure letter to Prof Anbarci and Prof Phillip. Prof Anbarci replied immediately, and added the new supervisors to the email chain. He said: “I am extremely disappointed to see that our genuine attempts by me, Thomas, John (who served as the HoD for four years), and especially Dennis are not sufficient or satisfactory for you, and you still chose to appeal to Alan and Susan. Given that our efforts are not achieving much, perhaps it will be better to leave it to Alan and Susan to sort things out and we instead save our efforts and energy for other things during these difficult times.”[148]The claimants replied later that day. In a measured and helpful tone, Prof Scarpa said they were sorry to cause disappointment, and they believed this was caused by misinformation and likely misunderstanding. He had tried to talk to Prof Anbarci in person and sincerely believed that he had not been adequately informed prior to taking on the role of Head of Department. He said they had not been kept abreast of the steps being taken to implement the guidance, and pointed out that the date for the Student’s viva had been set and examiners appointed without going to the Board of Studies. The only information the claimants had received was that Prof Phillip had been tasked with reading the thesis. While they appreciated that, it was not what they had expected and it did not address all the issues raised. They felt that their formal letter of that date explained the urgency and sensitivity of the matter. They expressed a desire to work collaboratively with the department to resolve the situation in accordance with University policy and the guidance received.[149]Prof Anbarci was involved in another series of emails on 22 May, immediately after receipt of the Second Disclosure letter. In a message to Prof Phillip he said: “This is very demoralizing. Their aim is not simply resolve issues and get their due credit/acknowledgments in the dissertation. They instead try to make it a university-wide scandal (which may come back and haunt our department) despite especially your very genuine and constructive efforts.”[150]Prof Anbarci then forwarded the claimants’ email to Prof Damjanovic, attaching the Second Disclosure letter, and repeated the above phrase: “FYI! Ric and Ashar are trying to escalate this issue to a university-wide scandal. You should perhaps prepare something against their claims in case Alan and/or Susan interfere.”[151]His language had by now become very adversarial.[152]Later in the day on 22 May the claimants emailed Prof Hart saying they would appreciate a Teams meeting to discuss the Student’s PhD and the joint judgment. Dr Aftab said: “We sincerely apologise that we're asking for your time but we have been forced by circumstances that are spiralling out of control. You and the VP made a very fair judgement, consistent with University regulations, that we agreed with. Unfortunately, for reasons beyond us, the department has not enforced the process you detailed.”[153]Prof Phillip continued the conversation by an email to the claimants that day. He said that he and Prof Anbarci had been through the attribution report, and he could not see the specific acknowledgements in the resubmitted thesis. The Student would be asked to rectify that mistake and add the list of acknowledgments from the attribution report. As for the second reading, he took that to relate to one chapter only, which he attached for review. He said that the claimants were not to deal with any substantive content, and requested that their review be done within the next three days. He reassured the claimants that he would be checking that the final submission of the thesis did reflect the explicit acknowledgments.[154]In an immediate reply, Prof Scarpa said this was not satisfactory and they wanted access to the whole thesis as agreed with Profs Houston and Hart. Prof Phillip replied promptly to say the new content was all in the chapter provided, but he did nevertheless provide the full thesis, with the new content marked for ease of review. He again requested that this be done within three days.[155]Prof Scarpa replied the next day, 23 May, saying he would try to comply with the time frame though he was under considerable pressure in respect of marking deadlines. Prof Phillip replied to emphasise that it was mainly the new chapter that would need reviewing, and in the case of the other chapters they would be relying on the claimants’ attribution report.[156]On 29 May the claimants responded to the thesis with a second attribution report, in advance of the Board of Studies meeting on 2 June. They therefore responded after a week rather than within the three days requested. On 30 May Prof Phillip emailed to ask for a copy of the joint judgment so he could understand the instructions regarding the nomination of examiners. That was provided by the claimants the next day.[157]With the involvement of Prof Phillip the situation was by this time mostly resolved from the claimants’ point of view, albeit they were unhappy at the short time frame given to them for a final review of the thesis.[158]On 2 June Prof Damjanovic became involved again. She wrote to Prof Anbarci (with a copy to Prof Hart) about the thesis examination. She had been provided with a copy of the joint judgment. She said Prof Houston had given the claimants “some special right” because they were the Student’s supervisors at the time, but they were no more. She complained about not being involved in aspects of the instructions from Prof Houston. Prof Anbarci replied saying: “Please read things carefully before making a fuss about things.” He quoted from the joint judgment and said “Please stop this nonsense now. Or please directly write to Alan to check what he meant by the above sentence. You are really wasting everyone's time now (therefore, I'll refrain from responding you from now on).” Prof Damjanovic’s response was to email Prof Hart, with a copy to Prof Anbarci, seeking advice. She said she thought Prof Anbarci was extremely confused and needed some direct instructions on the matter. She said he wanted to cancel the Student’s viva and she disagreed.[159]Prof Anbarci expressed exasperation with Prof Damjanovic in an email the same day to the new supervisors, Prof Hart and Prof Phillip. His frustration was that she had appointed herself as an independent chair of the Student’s viva, when no such position existed. She had resigned three times in the previous two weeks, and he had accepted the third resignation. In reply, Prof Phillip commented that the problem was mostly resolved from the claimants’ point of view.[160]On 5 June 2020 the letter forming the basis for the alleged Third Disclosure was sent by the claimants to the Institute of Business Administration in Pakistan (‘the IBA’). The letter was written on the University's letterhead and signed by both claimants as members of the University's Centre for Environmental and Energy Economics. The disclosure was not made to the University but to the Student’s employer. The claimants understood that the Student’s employment or its continuation was dependent on his obtaining his PhD from the University.[161]The letter disclosed three particular items of information: that the Student had misrepresented to the IBA that he had completed his PhD at the University; that the PhD was referred to on the IBA’s website; and that as a result the IBA was technically participating in a fraud.[162]On 26 June 2020 the claimants then emailed the Chair of the Higher Education Commission of Pakistan (‘the HEC’), and this became known as the Fourth Disclosure. They signed it in the same way as the letter to the IBA a few weeks earlier, but this one was not sent on letterhead. In the email the claimants said they felt it was “ethically incumbent” on them to draw attention to the “serious academic fraud” in the Student’s appointment by the IBA. The three particular items of information they disclosed were that: the Student had not completed his PhD at the University; the PhD was referred to on the IBA’s website; and that as a result the IBA was technically participating in a fraud. They asked the HEC to investigate the matter in its role as Pakistan’s quality assurance agency.[163]It was after this, on 29 June, that the Student’s rescheduled viva took place. He was required to make significant revisions to his thesis in order to be awarded his PhD.[164]Immediately following this, starting on 1 July, a number of emails were exchanged which formed the basis for various further alleged detriments.[165]The email chain started with a message from the claimants to Prof Anbarci on the afternoon of 1 July, saying they had “an urgent IP issue” requiring his attention, and asking for a Teams meeting. Prof Anbarci's immediate reply said he was swamped with meetings and asked: “What is an IP issue, btw?” He sent a second email asking it it was related to the Student’s dissertation and, on that assumption, asked them to send it to Prof Phillip as the Director of Research and to the new supervisors. The claimants replied appreciating that Prof Anbarci was busy and saying they could meet any time in the next two weeks. They stated: “It is not related with the [Student’s] dissertation”, but said it was related to enforcing their joint intellectual property rights.[166]Later that afternoon Prof Anbarci replied to explain that his focus was on meetings relating to a budget shortfall in the tens of millions, and asked them to contact the Prof Phillip in the first place. The claimants replied by return to explain that only the Head of Department could request that a legal process be initiated. They were relying on advice given to them previously by Ms Mantzoros about writing to the Student. They suggested Prof Anbarci could email her to authorise that step. Prof Anbarci replied that evening to agree they should contact her, and suggesting a general policy on IP issues be discussed by the Senior Management Team in future.[167]A flurry of emails followed over the next two days. On 2 July the claimants emailed Prof Anbarci to say there may have been a misunderstanding. Having previously contacted Ms Mantzoros, they understood that a letter to the Student required Chair’s action. If he was too busy, they would appreciate his emailing Ms Mantzoros to authorise it. Late in the evening Prof Anbarci replied to say that the SMT, PhD co-leads and others had raised some relevant questions and recommended nothing be done before he, Prof Anbarci, communicated with Ms Mantzoros. He had sent her an email and said he would get back to them.[168]On 3 July the claimants emailed Prof Anbarci to express their disappointment that he had discussed the issues with colleagues without first giving them the opportunity to clarify the position. They felt strongly that they should in the first instance be able to meet with him as their line manager. Shortly after this, Prof Anbarci wrote to the claimants and this time copied in Prof Hart. The email said: “I'm shocked that you thought that I would not get serious counselling/advice on such a sensitive topic from the relevant people in the department […], especially given that you blatantly lied to me in the process [when you] clearly and explicitly wrote that ‘it is not related to the student's dissertation’, while it turned out later that it is all about the student's dissertation’. So, let me get this straight: you think that you are allowed to lie to get me in to approving something very important in a very sensitive case, but I cannot even seek any advice on that case from our SMT members and PhD co-leads who are indeed formal roles in the department (and from John Ashworth [who] has been [the Student’s] supervisor since December 2019).”[169]His email finished with: “I assure you that I will discuss the necessary action about your lie with the relevant people in the university soon.”[170]The claimants replied that day to reiterate that the issue was not about the dissertation, but about enforcing IP rights on data collected but not used during the Student’s PhD. They continued: “Before calling someone a liar, without establishing the facts, it would help if you sought clarification from colleagues that you happen to line manage.”[171]They referred, for Prof Hart’s benefit, to the fact that they had twice requested meetings to explain the situation. The claimants requested an apology. No apology was ever forthcoming.[172]Having been brought into the conversation, Prof Hart replied on 4 July saying she would arrange a meeting to discuss this during the coming week.[173]On 5 July Prof Scarpa replied with a lengthy message, expressed in a measured and respectful tone, to Prof Hart only. His email referred to the: “… troubling accusation of lying and the threat of disciplinary action by our chair of the department, while I hope that his message was sent impulsively and its circulation was limited to us, unfortunately, I cannot be sure”.[174]He asked Prof Hart to ascertain to whom the email had been circulated, saying he did not want to escalate things unless necessary. He pointed out that he and Dr Aftab had made four requests to meet with Prof Anbarci in March and July 2020 but had been denied any such meeting. He clarified the concern, which is that the Student was in possession off the Frankfurt data and computer codes he, Prof Scarpa, had written. He maintained that this was nothing to do with the Student’s thesis or viva. Their concern was the protection of the University's IP, in which they had a share under its policies. They had understood from the advice of the Head of Legal Services that a warning letter should be initiated by the Head of Department. He added: “We are baffled by the aggressive approach that has subsequently arisen” and pointed out that they had not been given the opportunity to clearly state the issue in a conversation. He referred to the “sad outcome” and concluded with: “I also believe I am now within my rights to proceed with a formal complaint against the language and slandering accusations directed to us by the chair of department, but I am torn because I also think that the ‘complaint culture’ should not be incentivised.”[175]Prof Hart replied promptly that day, stating: “I can confirm that the circulation of the email by Nejat was amongst us only.”[176]She asked why the data in question was not available to him, and said again that she would arrange a meeting. This led to a reply from Prof Scarpa in which he asked for clarification of what she meant by “us only”, referring again to reputational consequences: “As academics reputation is all we own.”[177]The following morning, 6 July, Prof Hart told Prof Scarpa: “I confirm the email was shared with you, Ashar and me.”[178]This statement was incorrect. In an immediate follow-up, Prof Scarpa pursued the question of who had seen the email and again stressed the importance from a reputational perspective. This prompted Prof Hart to make proper enquiries, which until then she had not done.[179]Prof Hart emailed Prof Anbarci later that day, saying that Prof Scarpa had reexplained his and Dr Aftab’s concerns, and she had also spoken to Tess Mantzoros. She suggested meeting with the claimants and asked whether he wanted to be involved. She then asked: “I trust you haven’t circulated or mentioned it to anyone else?” She was referring to the accusation of lying.[180]In reply Prof Anbarci said he had shared the email with “Jacky, Rebecca, PhD coleads and John, whom I was consulting all along (therefore they would know where that email is coming from)”. He said he would prefer not to be involved in the proposed meeting with the claimants. He was “perfectly fine” with University not acting on the potential misuse of IP.[181]The emails continued that day, and Prof Hart replied to ask: “Specifically, did you share the email where you said they lied to anyone else?”[182]Prof Anbarci answered the question: “Yes, unfortunately I did. Rebecca had already noticed that Ashar lied to us. She was the one who specifically pointed that out to me.”[183]The recipients included Rebecca Topping (Senior Departmental Officer), Jacky Zhang (Director of Research) and John Ashworth, as well as the PhD co-leads (Damian Damianov and Parantap Basu). Prof Anbarci explained that the people to whom he had copied his email were “officially and naturally” involved in the matter, contrary to what the claimants thought. He said they: “… knew everything all along (ie in the process of viva, they got to know all of [the claimants’] bullying of [the Student] and their tactics to stall the viva, which are much worse than such a lie which was trying to split hairs …”[184]This allegation that the claimants had been bullying the Student and attempting to stall his viva formed formed the subject of joint detriment D8. They further alleged that Prof Hart failed to investigate the allegation (joint detriment D9).[185]Prof Anbarci said he had shared the email as part of the process of consulting what to do about the claimants’ IP query, about which he “didn’t have a clue”. He acknowledged that he was still learning things and would be much more careful about sharing such emails in future. During his grievance interview about this, it was clear that none of the group with whom Prof Anbarci had corresponded understood the IP issue. This was either because they understood it related to the Student’s thesis as submitted, or because they, like Prof Anbarci, were unfamiliar with how IP rights might be protected.[186]On 6 July Prof Hart replied to thank Prof Anbarci for his openness. She went on: “I suspect [the claimants] know this and I believe they will try and take this further. They will probably seek a retraction from you and an apology – and, I suspect [sic] that you tell all of those with whom you shared the email, that they were not, in fact enquiring about the dissertation per se. We all need to be very careful about what we put in emails. I know you are learning and will do so from this incident too.”[187]Prof Hart explained that she would follow up the IP issue with the claimants.[188]The last email in this sequence on 6 July was sent by Prof Hart to the claimants, copied to Prof Anbarci, in reply to Prof Scarpa’s second query of that morning. She confirmed that having checked with Prof Anbarci, he had confirmed that: “As part of the wider consultation he undertook in this matter, others will have seen the email in question”.[189]This led to a response from the claimants the next day, sent to Prof Hart and copied to Prof Anbarci. They said this information was extremely concerning to them and counter to all ethical behaviour between colleagues. They expressed appreciation that everyone had been under a lot of pressure, which might have been a contributing factor. They requested a separate meeting to get her advice on how to go about remedying the reputational damage, and said they were “deeply distressed by the threat of disciplinary action, especially since it is totally unfounded and mendacious”. They had already been approached by colleagues, out of concern, and asked about such action.[190]Other emails were exchanged on 6 and 7 July between Prof Hart and the claimants about the advice from Ms Mantzoros as Head of Legal Services. Prof Hart said Ms Mantzoros had confirmed that the University could not act unless there was evidence that inappropriate use of data had actually occurred. The following day the claimants replied to express their confusion, based on meetings with Ms Mantzoros in September, October and November 2019. They said they were advised that it was reasonable and not uncommon for the University to write to remind a research student of the IP position. In a more recent meeting on 31 January she had told them she would draft a letter which should then be sent by the Head of Department. The claimants requested clarification.[191]When later asked about the accusation of lying in the 3 July email, as part of the grievance investigation, Prof Anbarci said Prof Hart had told him “it may come to a point where I may have to apologise for using the strong word blatant lie even though it was a very clear an obvious misrepresentation. I'm happy to replace the word lie. I had happily used deception instead.” He went on to comment that a lot of claims the claimants had made were “clearly false”, in the context of the arrangements for the re-reading of the resubmitted thesis and other allegations which have found their way into these proceedings.[192]In fact no meeting with the claimants ever took place, either to discuss the IP issue or their concerns about being accused of lying. At no point did Prof Anbarci apologise for the accusation, nor did he ever retract it – including during the course of these proceedings. The closest he came was to say to Prof Scarpa during oral evidence: I can apologise for the lie part”. Although Prof Hart had spoken to Prof Anbarci about the possibility of giving an apology at some point, she did not instruct him to take this step.[193]In her oral evidence Prof Hart said she had several telephone calls with Prof Anbarci about this. Although she said she made it clear he should consider an apology, she did not initiate one. She said it did not count as an apology if she asked him to do this. She also said that the claimants fell short of being open and honest and transparent, reflecting Prof Anbarci's own view.[194]Prof Anbarci said several times during his evidence that he had retracted the allegation, but he did not. On the contrary, during cross-examination Prof Anbarci said the claimants’ words had been an act of “trickery, deception and maliciousness”. When asked for clarification of this by a member of the Tribunal, he said he had formed that view during the hearing.[195]The fact that no meeting was arranged to follow up the claimants' concerns about IP rights formed part of their complaints to the Tribunal (detriment Aftab D13/Scarpa D14). They alleged that Prof Hart failed to arrange such a meeting and used the later misconduct investigation to prevent them enforcing their IP rights. It was not in dispute that Prof Hart did not arrange the meeting. She said she had spoken to Ms Mantzoros who had advised they could not do anything preemptively; there had to be a breach. In an email dated 7 July Prof Scarpa said they did still wish to have a meeting. Prof Hart replied to say she would call Ms Mantzoros for further clarification, and would then arrange a meeting. She said there was little point doing so before then. In her oral evidence she said this was because she got too busy to move it on, and also there was little point.[196]The claimants alleged that Prof Anbarci excluded them from department-wide correspondence on the issue of their IP rights between 10 June 2020 and 5 July 2020 (detriment Aftab D5/Scarpa D4). The most significant emails during that time were those exchanged in early July as set out above. There were no other emails from which the claimants were excluded, relating to the general business of the department. There is, however, no doubt that the claimants were excluded from the email discussions about the IP query they had raised, even though neither Prof Anbarci nor the colleagues he consulted understood the query. Prof Anbarci did not entertain the option of asking the claimants to explain what they were asking.[197]Late in the evening of 6 July Dr Hyder, Chair of the Department of Economics at the IBA, emailed several recipients at the University, including Profs Ashworth and Renstrom. This came about as a result of the claimants’ letter to the IBA dated 5 June. Dr Hyder said it was “shocking to receive this kind of letter from your faculty on official letterhead”, and that it was “very embarrassing” for the IBA that the letter was also sent to the HEC. The email noted that the Student disagreed with the allegation of academic fraud, and Dr Hyder requested clarification of the situation.[198]This email was forwarded to Prof Hart and Prof Anbarci early in the morning of 7 July. At the end of that day Prof Hart emailed Prof Houston saying the claimants had acted on their belief that due process was not followed in the case of the Student’s viva. She referred to their concerns on “possible plagiarism” and the joint judgment. She said this was duly followed but that the claimants had written to the Student’s employer, which put the university's reputation at risk. She said she had replied to the IBA that “there should be no assumption on their part that the allegations are true”. She had also asked the Deputy Executive Dean for Research to carry out a detailed review of the timeline and emails. Prof Houston responded briefly, describing the claimants' actions in contacting the Student’s employer as an extraordinary step, and wondering how they would explain or justify it.[199]This email to Prof Houston formed the basis of the claimants' allegation that Prof Hart made inaccurate statements about their conduct and the Third Disclosure (joint detriment D10).[200]On 8 July Prof Hart replied to the IBA in a message that was substantially redacted in the copy provided to the Tribunal. The message stated that a brief investigation had been carried out. Prof Hart stressed that the claimants’ letters to the IBA and the HEC represented their private opinions and perspectives. She said that these views were: “not shared by the examination committee, nor the wider supervisory team, nor the Head of the Department of Economic and Finance.”[201]Prof Hart emphasised that the claimants' letters had “no formal standing” in the University, that their opinions and perspectives had been written without the University's permission or agreement, and were not endorsed by the University. The IBA replied on 8 July thanking Prof Hart for clarifying their concerns, and said they would wait for the University's final report. The Tribunal is not aware of any such report.[202]The claimants took issue with the accuracy of this letter, because neither the external or internal examiner, nor at least one member of the supervisory team, was aware of the content of the Third Disclosure. This was correct, and Prof Hart did not investigate or test the accuracy of the matters disclosed with those individuals before replying to the IBA. This was confirmed through enquiries Prof Scarpa made of the examiners months later. They had not been contacted or asked for any opinion about the content of the letter to the IBA. This formed the subject-matter of joint detriment D11.[203]Prof Hart took steps after this to initiate a disciplinary investigation against the claimants on the grounds of their letters to the IBA and the HEC. In the interim, other issues arose in respect of Prof Scarpa and his working arrangements with the University of Waikato, New Zealand (‘Waikato’).[204]Prof Scarpa alleged three detriments (D12, D17 and D18) relating to his secondary employment with Waikato. He alleged that Prof Hart committed breaches of confidentiality on 11 July and 8 October 2020, by seeking and divulging private and confidential information about his employment. The allegations included the fact that info from Waikato was wrongly shared with Prof Anbarci, who then in turn shared it with other members of staff.[205]The third aspect to these detriments was that the University attempted to restrict Prof Scarpa’s ability to undertake his secondary employment by indicating on 22 October 2020 that it had not given approval for him to work at Waikato whilst taking leave to look after his mother in New Zealand.[206]The correspondence between Prof Hart and Prof Frank Scrimgeour, Head of the Waikato Management School, began on Saturday 11 July 2020. Prof Hart wrote to remind Prof Scrimgeour that they had met some time previously at an event. She said: “I am writing to enquire, strictly confidentially if Ric still has a partial appointment with you at Waikato? I see he is on your website, but I am not sure if his status is visiting, or if he has a partial appointment and if so, what is the nature of that? If you could let me know the capacity in which he is engaged and the % of time in the case of a contract, I would be most grateful.”[207]Prof Scrimgeour replied almost immediately to confirm that Prof Scarpa did have a part-time position with Waikato, and he would check the details the following week. He added: “He has also had some leave from the PT position recently indicating he had some personal matters to attend to.”[208]Prior to emailing Prof Scrimgeour, Prof Hart did not ask the University's HR department or Prof Scarpa himself for any information about his part-time appointment with Waikato. In her evidence she explained this by saying this had been on her to do list for some months, and she wanted to check her facts before speaking to Prof Scarpa. She did not want to “confront” him before taking that step. She did not ever speak to Prof Scarpa about it, because it “fell off the radar”.[209]At the same time as Prof Hart was contacting Waikato to seek information about Prof Scarpa’s secondary employment, she was also contemplating disciplinary action arising from the letter to the IBA which she had learned about on 7 July. A few days after the email to Prof Scrimgeour, on 14 July, both claimants received a formal letter inviting them to a disciplinary investigation meeting. This resulted from a meeting between HR and Prof Hart, when the latter had raised what she described as serious concerns about alleged misconduct, namely:209.1 Sending official correspondence from Durham University to the IBA and HEC in Pakistan, without consultation with the Head of Department or the approval of the Business School.209.2 Bringing the University into serious disrepute as a consequence.209.3 Harassment of the Student by these actions and the resulting serious repercussions to the Student’s career.[210]Interviews were initially conducted with the claimants in August and September 2020, and with Prof Hart and Prof Anbarci in October that year. A long delay followed before further interviews took place in May 2021. The initiation of the disciplinary investigation became the subject of detriment Aftab D12/Scarpa D13.[211]In the meantime, a report was prepared by Prof Richard Harris, Deputy Executive Dean of the Business School, on 18 July 2020, in connection with his review of the claimants' allegation of potential academic fraud against the Student. His report was a mainly factual account of events, with his own opinions added and identified. In his report Prof Harris said was alerted to the claimants' letter to the Student dated 26 August 2019 that same day. He spoke to the claimants shortly after that and took the view that they were as much concerned with having access to the Frankfurt data as they were about the Student’s progress. He referred to Prof Damjanovic’s involvement in appointing examiners without consulting the claimants.[212]His report recited in some detail the chronology of communications between various members of staff in late 2019, relating to the arrangements for the submission and examination of the Student’s thesis. He covered the themes which had been addressed in the joint judgment. Referring to the 3 July emails in which Prof Anbarci had accused the claimants of lying, he acknowledged that this was “an inappropriate use of words” but agreed that they were misrepresenting their enquiry about IP rights. Generally, Prof Harris’ report and was highly critical of the claimants' conduct in connection with the Student and the related IP rights.[213]Having been interviewed for the disciplinary investigation on 7 October 2020, Prof Hart followed up the issue of Prof Scarpa’s employment at Waikato the very next day, in an email to Prof Scrimgeour on 8 October. She referred to capacity planning for the year as the reason for her revisiting the question regarding Prof Scarpa, and asked: “Did you manage to find out what % of FTE he's contracted at Waikato?” Prof Scrimgeour replied to say they were considering a fractional appointment with Prof Scarpa, between 0.3 and 0.6. He was expecting to make a formal offer before the end of the month. Prof Hart emailed back to ask about the percentage FTE for the previous contract, to which the reply was that he had had a 50% contract with them and also a period of leave when it went to zero.[214]Later that day, Prof Hart forwarded the information received from Prof Scrimgeour to Prof Anbarci and a member of the HR team. She expressed concern and said she had asked someone (name redacted) to verify the dates when the 50% appointment was in place. She asked for a discussion the following week.[215]On 14 October Prof Hart emailed Prof Harris enquiring about an informal agreement Prof Scarpa said he had made with him on his appointment in 2014. This related to workload allocation. Prof Harris replied attaching two emails from 2014. He explained there was no formal agreement on the workload question. While he had told Prof Scarpa that in principle he was happy with the arrangements, his view was that these were informal and subject to teaching constraints, and were not contractually binding.[216]Prof Hart’s email to Prof Harris did not ask any questions about Prof Scarpa’s parttime working arrangement already in place with Waikato at the time of his appointment, even though Prof Harris had known about that.[217]On 16 October Prof Hart emailed a member of the HR team about Prof Scarpa’s flexible working request, which had been approved by Prof Anbarci. She said the latter had raised concerns about the role at Waikato. In her email Prof Hart said she understood his mother was not based in New Zealand (which was incorrect), and so the two issues must be separate: caring for his mother for a few months a year, and other academic positions. She said Waikato had been in touch to say they were considering different models for Prof Scarpa’s commitment for the next three years. The question from Prof Hart to HR was “whether we say he can only be contracted for the equivalent of a full time role across all institutions or if we are more flexible”, and whether the caring responsibilities came into it because that is why they were granting the reduction in hours. These two issues then became conflated.[218]On 22 October further emails were exchanged between HR, Prof Hart and Prof Anbarci. The names of the senders and recipients were redacted but they appear to show HR advising that they were not able to share information about Prof Scarpa and his contract with anyone outside the University without his permission. Similarly, if New Zealand wrote to ask for information then the University would need to his permission to share anything. That email went on to say: “We have made it very clear that he can't take other contracts without discussion/permission and I know [redacted name] said he was not happy in the meeting about New Zealand being in contact with us. I think we need to proceed with caution and now wait to see what we get from Ric or from New Zealand.”[219]Prof Hart replied to suggest they could tell Waikato to contact them at any time, if there was any discussion between them and Prof Scarpa about a contract, as he is “not allowed to have any contract with anyone else beside the contract that he has with us”. This last statement was incorrect. Prof Scarpa’s contract terms stated that his appointment was based on a 90% FTE contract and there was no prohibition on secondary employment. The University had known about Prof Scarpa’s commitment to Waikato at the time of his appointment.[220]Had anyone checked the position properly before this exchange of emails, as Prof Scarpa later did with HR on 9 November, they would have learned that the terms and conditions for Grade 10 staff required them only to disclose secondary employment, without any need for permission. This was subject to ensuring that the overall working hours were compliant with the Working Time Regulations.[221]One of the ways Prof Scarpa managed his time at Waikato was to live and work there for a block of around 14 weeks, during which he carried out 3.5 hours per week for the University for the purpose of supervising PhD students. This suited him for personal reasons, as he wanted to be in New Zealand in person to help provide care for his mother. In late 2020 Prof Scarpa’s flexible working request was made to help him with these caring responsibilities, such that his annualised hours at the University would reduce from 0.9 to 0.76.[222]The flexible working request was formally submitted by Prof Anbarci on 22 October 2020. The agreement was that Prof Scarpa could travel to care for his mother in New Zealand from mid-September to the end of term in December. The breakdown of duties and workload had also been agreed. The document stated: “It was confirmed that whilst the flexible working request has been approved, this is on the basis that approval has not been granted to undertake an additional academic position with another University. This is because this additional issue had not been part of the flexible working request and had not been raised as a possibility during discussions. Holding additional academic positions, including ones that may result in working more than 1FTE will be considered as a separate issue. In discussion with Ric, and in order to avoid a delay due to this additional information (acknowledging that Ric needed a quick decision regarding the care of his mother), it was agreed that the original request would be agreed and should Ric wish to submit a proposal regarding working for another institution this would be considered separately.”[223]In conflating the flexible working request with the right to undertake secondary employment, the respondents prolonged their error about needing permission for secondary employment. There was in fact no requirement for Prof Scarpa to make a proposal to work for Waikato, as in principle he had always been known to do this. The only new question was about the balance of the working hours.[224]On 4 November Prof Hart emailed Prof Anthony Long, Provost. She forwarded an email dated 3 November from HR referring to Prof Scarpa asking about the process for requesting permission to take up employment with another university. The email from HR said “Our terms and conditions document does not state that an employee has to ask permission, it just says that they are required to inform us”. A link to the contractual provisions was included. The advice from HR was that Prof Scarpa should put together an email for Prof Hart with information about the other role and its impact on the role at Durham University. HR had also asked Prof Scarpa to consider whether it impacted on his reasons for his flexible working request.[225]In her message to Prof Long, Prof Hart queried: “Is it really the position that our people can work for others without seeking permission? Are we comfortable with this? I am having multiple issues with this individual who has who has asked us for a reduction in hours to look after a parent, which we've agreed to, only to find out he's negotiating elsewhere. Not only am I not permitted to ask him – or Waikato – of the arrangements, HR informed me he does not need permission!”[226]The reply that same day confirmed that the position was as per the guidance from HR. Prof Long pointed out that technically they are employed by other institutions quite regularly. He added that he was not comfortable with an individual simply notifying the University, for example because there could be a conflict of interest. He also agreed that it was not reasonable to request time to support a parent and also seek alternative additional employment. He added: “We are reducing his role in good faith. He is not repaying that.” Prof Long suggested they take advice from HR as to the options for exploring whether they could tighten up these arrangements. He concluded: “I suspect that for now, with this individual, some kind of performance review is the best way forward.”[227]In a response to these exchanges, Prof Anbarci emailed Prof Hart on 9 November, confirming that the reduced hours had been approved. He said he fully agreed that they needed to have a “comprehensive performance review” for Prof Scarpa, as soon as all the HR investigations about him were concluded.[228]On 20 November Prof Scrimgeour sent a follow up email to Prof Hart, copied to Prof Scarpa. He said he was now aware that their communication about Prof Scarpa’s employment arrangements were private and he should not have disclosed the information he provided without Prof Scarpa’s explicit permission. The proposals mentioned in his email of 8 October had not been actioned. He apologised for any confusion that his communication might have caused. He said that the University of Waikato and the economics profession in New Zealand valued the collaboration with Prof Scarpa and Durham University, and he hoped this could continue.[229]It was in December 2020, after learning of Prof Hart’s letter to the IBA in July, that Prof Scarpa contacted the external examiners to ask if they had been asked for their opinion on the content of their letter to the IBA. Both said no. Prof Hart became aware of this on around 1 December and that day, she emailed a senior colleague (possibly Prof Anbarci though the recipient’s name was redacted), questioning how Prof Scarpa had obtained a copy of her confidential letter to the IBA, and his subsequent involvement with that. Her email added: “I understand [name redacted] has had more difficulties with Ric in respect of teaching allocations, so it would be appropriate to meet regarding [name redacted] suggestion regarding a performance conversation with him.”[230]This formed the basis of Prof Scarpa’s detriment D15, where he alleged that Prof Hart had emailed various recipients advising them to hold performance conversations with him arising out of the Third Disclosure. The theme of Prof Scarpa’s performance had by this time escalated from Prof Hart to the Provost and became part of a thread in the emails with Prof Anbarci.[231]The subject of Prof Scarpa’s flexible working arrangement was revisited in early 2021. On 21 January he emailed Profs Anbarci and Hart regarding the restriction on his employment in New Zealand. He quoted his terms and conditions which stated only that staff should disclose secondary employment. He explained in detail his circumstances, having been approached by Waikato to explore a possible 0.2 FTE contract. He outlined his mother's ongoing care needs and suggested his time for Waikato could be carried out for the most part between midSeptember and the end of December, so as not to impact unduly on his duties for Durham University. He set out what he saw as “strong synergies” between the two universities, by reference to his research and also the times of the year when the work would be carried out. He referred to his track record and the benefits of the work done in Waikato, regarding this as an important opportunity both for him and for the University's REF submission in the future. He asked for their approval to a FTE 0.2 contract with Waikato while he was working FTE 0.76 for the University.[232]In a reply dated 10 February, Prof Anbarci quoted from the flexible working request form which had set out the restriction on working for another institution, and in which Prof Scarpa had been invited to submit a proposal about Waikato. He said they would consider his request only after the one year review period applicable to the flexible working request. Prof Scarpa responded on 11 February to say this was not satisfactory and he needed to know then for planning reasons. The discussion continued, and the situation evolved, but none of that is material to the present case.[233]On 14 June 2021 the claimants raised joint grievances, alleging that they had been subjected by Prof Anbarci and Prof Hart to a series of detriments due to whistleblowing in the public interest. The grievances were investigated by Prof Stefan Przyborski, Dean of Infrastructure of the Faculty of Sciences. He was both independent of the issues and of sufficient seniority to deal with the matter. The grievances and their handling were not the subject of any allegation of detriment in these claims.[234]Although they had not initially invoked the Whistleblowing Policy, the claimants did introduce the terminology of whistleblowing for the first time on 31 May 2021, when providing additional written evidence to Prof Fawcett confidentially, as part of his disciplinary investigation. Once their grievances were submitted, the Head of HR referred them through the relevant protocols by bringing the grievances to the attention of the Director of University Assurance Service. This was done on 18 June 2021 and a formal whistleblowing report was produced on 23 July 2021. It stated: “… matters relating to standards and quality of degrees awarded by the University would fall within the scope of a public interest disclosure. The [Whistleblowing] Policy clearly states that the University does not tolerate harassment or victimisation of anyone raising a genuine concern and our interpretation is that this also applies to concerns raised within the line management hierarchy. Therefore, we consider it appropriate that grievances raised by Prof Scarpa and Dr Aftab about the detriment they feel they have suffered are investigated.”[235]The summary findings of this report, broadly speaking, treated the claimants' concerns about the Student’s PhD as well-founded, while also noting that they had been addressed fairly quickly, within one month.[236]Prof Przyborski went on to conduct interviews with the claimants between September and November 2021, followed by interviews with Prof Hart and Prof Anbarci in November. Information was provided by email by Profs Harris, Damjanovic and Philip at around the same time. His report was finalised much later, in February 2022.[237]The fact that Prof Hart had instigated a misconduct investigation against the claimants on 14 July 2020 formed the basis for detriments Aftab D12/Scarpa D13. The resulting letter of concern was pleaded as detriment AftabD17/Scarpa D19, based on the fact that such an action had not been recommended by the investigation.[238]After a long delay in the disciplinary investigation, final interviews were conducted in May 2021, with the claimants and with Profs Hart and Phillip. Prof Fawcett’s investigation report was then produced on 23 June 2021. It was not in dispute that the claimants had written to the IBA and HEC. The report concluded that this was a breach of confidentiality in relation to examination matters. As for the allegation of bringing the University into “serious dispute”, Prof Fawcett concluded that: “No evidence was presented that this incident will have any long-term impact on the reputation of the University”.[239]Similarly, Prof Fawcett found that there was no evidence to substantiate the allegation of harassment of the Student, as defined under the Respect at Study Policy. He concluded that the claimants' actions in relation to the thesis submission were consistent with University policies, and prevented the Student from including material which could have led to him being accused of plagiarism. That said, the report did conclude that the claimants' letter had gone much further than necessary to alert the IBA that the Student had not been awarded a PhD in 2019, and had contained serious allegations of academic fraud. For this reason, the letter “could be interpreted as bullying” under the Respect at Study Policy.[240]The overall conclusion was that, while the claimants had bypassed line management in writing to the IBA and HEC, this was because of their ethical concerns and after attempts to alert management to potential academic fraud. He added: “Had their concern been recognised and acted upon appropriately, by any of those contacted, the communications would likely not have been sent.”[241]The report recommended not to proceed for a formal disciplinary hearing, even though the claimants' letter had not been appropriate. Accordingly, he recommended that the claimants receive a letter of concern setting out their responsibilities and how to elevate concerns. He identified some online training for the claimants, to raise awareness of bullying and harassment issues.[242]Prof Fawcett made another recommendation, this one directed at management: “It is recommended that the Head of Department of Economics and Finance, the Dean of the Faculty of Business and the Vice Provost Education carry out a lessons learned exercise, focussing on how communications from [the claimants] were handled, and make changes to training or processes as required.”[243]The resulting letter of concern was sent to the claimants by Prof Hart on 21 July 2021. It captured the essence of the above recommendations. Prof Hart also said she and others would take forward the other recommendations in the investigation report. Unfortunately, the lessons learned exercise was never carried out.[244]Some months later, on 7 January 2022, an addendum to the initial whistleblowing report dated 23 July 2021 was issued. This recorded the fact that the Student’s entry on the IBA website as at 19 May 2020 had indicated he was awarded his PhD in 2019. That information had been provided at the time to Prof Hart and others, but was not referenced in Prof Harris’s report of 18 July 2020. The report concluded that the latter’s report along with the additional information from Prof Scarpa: “confirms that the concerns raised by Prof Scarpa and Dr Aftab’s communication to the [Vice-Provost Education] on 19 May 2020 were wellfounded.”[245]Shortly after this, Prof Przyborski’s investigation report was produced on 4 February 2022. It made findings on the key themes in the grievances, in each case dismissing the allegations of detrimental treatment. Prof Przyborski’s report was generally supportive of management, though was not without some ambiguities. On the issue of Prof Anbarci's email accusing the claimants of lying, and threatening them with disciplinary action, he made findings based on the email exchanges in question, not quoting the language exactly but paraphrasing incorrectly to treat the query as being about the Student, as distinct from the Student’s thesis. Prof Przyborski said: “It is recognised that Prof Anbarci had insinuated that Prof Scarpa and Dr Aftab had lied, by saying in the email of 3 July 2020 ‘I assure you that I will discuss the necessary action about your lie with the relevant people in the university soon’, however I find no evidence that he threatened disciplinary action.”[246]He accepted Prof Anbarci's interpretation of these events and noted Prof Hart's view that he might need to apologise. In his conclusions Prof Przyborski referred to the challenges Prof Anbarci was dealing with, and his lack of knowledge about how the University dealt with such issues. He found that Prof Anbarci's tone and wording in some of his emails, in particular the email dated 3 July 2020, “could be perceived as direct and accusing”. He stressed the importance of all employees of the University upholding standards of respect for each other, and noted that there had been no apology to the claimants. Prof Przyborski did not, however, make any specific recommendations about the accusation of lying, other than to say that “such matters should be dealt with in a timely manner to avoid the need for formal action”.[247]In his additional findings Prof Przyborski identified the lack of a clear communication route as a cause of confusion for all parties. He acknowledged the claimants' feelings of frustration and stress, while also criticising their communication style and saying that contacting multiple managers in rapid succession may have contributed to the problems. He found that: “… Prof Scarpa and Dr Aftab have perhaps lacked accountability for their own behaviours throughout this process. It does look to be evident that behaviours have not been dealt with appropriately from all parties; this is perhaps something that can be reflected upon through a lessons learnt exercise as outlined in Professor Fawcett’s disciplinary investigation report recommendations, dated 23 June 2021.”[248]Prof Przyborski’s report concluded with some recommendations. In the case of the claimants, it was noted that they should raise concerns in a timely manner and using the correct policies, with advice if needed. The above recommendation for a lessons learned exercise was repeated. Broader points were made about all staff to refresh and familiarise themselves with areas such as the LTH on the management of PhD students and how IP issues should be handled. In pointing out that some recommendations from the Fawcett report had not been implemented from June the previous year. Prof Przyborski also noted that Prof Anbarci was not aware of the recommendations.[249]In spite of these further recommendations, the University still took no steps to carry out a lessons learned exercise.[250]On 14 February the claimants submitted an appeal against the grievance outcome, which was dealt with by Prof Richard Crisp, Deputy Vice Chancellor and Provost. He was satisfied that Prof Przyborski had conducted his investigation properly and on 16 May delivered his report turning down the appeal.[251]The claimants alleged that Prof Hart obstructed an investigation by Prof Colin Bain (Vice Provost Research) into their complaint about the Student, by failing to provide information requested before her retirement on 31 March 2022. This was the subject of detriment Aftab D14/Scarpa D16.[252]Dr Aftab had initially approached a colleague in Research and Innovation Services on 25 June 2021, shortly after the disciplinary investigation was concluded. The claimants were concerned about protecting their rights as co-producers of the IP which the Student had relied on. The matter was referred to Prof Bain to look into under the University's authorship policy.[253]By the latter part of 2021 the claimants made enquiries about how the matter was progressing, and were told that Prof Bain was awaiting some factual information from Prof Hart. Her evidence to the Tribunal was that she was unaware of any unanswered requests for information. Prof Hart retired on 31 March 2022. The matter was revived in June that year, and after a further delay, a report was prepared by Prof Ehteshami on 17 February 2023. On 16 June Prof Bain wrote to the claimants attaching that report. He advised that although the investigation did not uphold their complaint of research misconduct relating to lack of authorship and misuse of University IP, it did find that it would have been good practice for their contribution to the concept and design of the research to be acknowledged.[254]A further issue was raised only by Dr Aftab in relation to two promotion applications he made during the time of these events. The first promotion round was in 2019/2020. He alleged (detriment Aftab D15) that Prof Anbarci and Prof Hart failed to promote him to Associate Professor, and that this was detrimental treatment because of his protected disclosures. He was informed of the decision on 30 November 2020. The second promotion round took place in 2020/21, and Dr Aftab was informed that he was unsuccessful on 10 August 2021. He again alleged (detriment Aftab D16) that Prof Anbarci and Prof Hart were responsible for this decision.[255]The University’s promotion rounds were considered by the Departmental Progress and Promotion Committee (DPPC) and then the Faculty Promotion Committee (FPC). The DPPC was chaired by Prof Anbarci as the Head of Department. Around nine colleagues from the department were members of the DPPC. Prof Hart was involved in her capacity as Dean of the Business School.[256]In respect of both promotion rounds, Dr Aftab’s criticisms of the process were detailed. In essence, he complained that both Prof Anbarci and Prof Hart failed to apply guidelines or criteria correctly in evaluating his work, for example by reference to the totality of his research output or his contribution towards ‘citizenship’ within the department. They had unreasonably undermined his research performance and failed to contextualise scores. Dr Aftab's argument was that, when he applied successfully for promotion to Associate Professor in the 2021/2022 round, his CV was virtually identical and yet this time, without the involvement of Prof Anbarci and Prof Hart, he was successful.[257]In presenting his case at this hearing Dr Aftab raised his challenges with the respondents’ witnesses. He was, however, unable to identify any specific evidence going to the question of how Prof Anbarci or Prof Hart had been able to influence or interfere with the assessment or scoring of his applications, which were dealt with by committees comprising many other senior members of University.[258]On both occasions he was not promoted, Dr Aftab was given verbal and written feedback by senior colleagues. The first round took place for the year 2019/2020. On 5 February 2020 Prof Anbarci provided written feedback in summary form, following a DPPC meeting. This acknowledged that he had made significant efforts in terms of grant generation. Teaching had been somewhat affected by health issues. As for research outputs, he had not yet met research benchmarks but was taking steps in the right direction.[259]An FPC meeting took place on 14 Sept 2020, as part of the 2020/21 promotion round. It was chaired by Prof Long as Deputy Vice-Chancellor and Provost. Prof Hart attended but Prof Anbarci did not. Of the 10 nominations put forward, 6 were appointed. On 13 January 2021 a meeting of the DPPC took place, which concluded that Dr Aftab had not added any major contribution to his research since the previous year, and his CV had not much changed since then.[260]Prof Hart later provided feedback to Dr Aftab, a written summary of which was produced in January 2021. The feedback raised a question mark over the consistency of Dr Aftab's research outputs at an internationally excellent level since his last promotion. It acknowledged an ongoing strong record in grant awards. On teaching and citizenship, it was felt that more supporting evidence was needed. Overall, Prof Hart noted that Dr Aftab was making good progress towards promotion. Similar feedback was given by Prof Michael Guo at that time.[261]Dr Aftab made a further allegation of detriment (Aftab D1) in which he alleged that the University failed to send him any potential PhD student applications from candidates who met its minimum entry requirements, after the First Disclosure letter of 4 November 2019, and on a continuing basis.[262]The evidence provided to the Tribunal about the referrals of potential PhD students was very limited. Dr Aftab provided no data showing any numbers before or after August or November 2019, nor any information as to how the numbers had changed. In his witness statement he said he had previously processed around two applications per month, though he did not state how many students were actually accepted or supervised. He provided no information about the previous numbers of potential students. In the last 5 years he had had only two referrals, both obviously unsuitable. The last referral was in March 2023. His case was that the University's global reputation was such that it was improbable for there to be no PhD applications in his field of study.[263]Prof Anbarci provided some limited data and a spreadsheet. We infer that this relates to the period after Nov 2019. He said that he personally, as a global leader in his field, had supervised only two students in the 6 years since joining the University. It would also not be usual for an Assistant Professor to be a PhD supervisor. The spreadsheet was not particularly illuminating, but it did show that Dr Aftab was referred no students in that period, in common with many other colleagues.[264]On this limited evidence the Tribunal finds that no potential PhD students were referred to Dr Aftab in the period from August or November 2019, but also that this was not unusual.[265]One final area we were asked to examine related to Dr Aftab's detriment D22. He alleged that Prof Hart, as Executive Dean, failed to initiate any independent investigation into, or take disciplinary action in respect of, failures by member of the the University's staff to adhere to the LTH. Rolled into this allegation was the fact that Prof Hart did not take any such steps in respect of Prof Anbarci's treatment of the claimants.[266]No date or time period was identified in respect of these very broad complaints, nor were the staff who are said to have breached the LTH identified. It is not in dispute that the University did take a number of steps arising from the issues raised by the claimants, starting informally with the joint judgment. Formal investigations were carried out into the issues raised by the claimants through Prof Przyborski and Prof Bain. No disciplinary outcomes were found to be warranted.[267]This overarching complaint seems in any event to have been covered to an extent in the factual matters already set out above. D. CLAIMANTS’ SUBMISSIONS[268]The claimants presented a detailed written submission, and each also addressed the Tribunal orally with their key arguments. The following is not a comprehensive summary of their submissions but is intended to cover the main points made.[269]The claimants' position was that they made four protected disclosures in good faith concerning serious failures to comply with legal obligations, specifically in relation to the LTH, potential academic misconduct including plagiarism, and potential academic fraud. These disclosures were reasonably believed to be in the public interest, primarily concerning the maintenance of academic standards and integrity at a leading UK university, the proper assessment of PhDs, the protection of intellectual property, and the prevention of academic fraud.[270]The claimants covered some key themes in their submissions, including the need to uphold academic integrity; systemic procedural failures; retaliation and victimisation; and abuse of power. They also addressed the respondents’ credibility.[271]The claimants submitted that each of their four disclosures was protected under sections 43B and 43C of the Employment Rights Act 1996. They addressed the key tests as identified in the List of Issues, in relation to each of the four disclosures, setting out the facts in support of the issues.[272]As for the First Disclosure, the claimants said they genuinely believed this was in the public interest. It concerned maintaining academic standards, preventing plagiarism (a serious academic offence), ensuring fairness in assessment, and upholding the integrity of degrees awarded and the principles of research integrity, all of which are matters affecting the public's trust in higher education.[273]Relying on Chesterton Global the claimants referred to the serious nature of the wrongdoing, and the fact that the wrongdoer is a major publicly-funded university whose standards are a matter of public concern. The nature of the interests affected are also significant. The issues therefore transcended a purely private dispute involving them as the Student’s PhD supervisors.[274]The legal obligation relied on was the University's own LTH regulations, which they asserted constitutes a set of binding rules governing the relationship between the University, staff and students, creating legal obligations.[275]The Second Disclosure also tended to show relevant failures, in relation to the University's ongoing failure to comply with the LTH, and potential academic plagiarism by the student. They further submitted that a criminal offence (fraud) may have been committed by the student in Pakistan by misrepresenting his qualifications to gain employment.[276]The Third Disclosure was not made to the claimants' employer but to an external body. The claimants submitted that this was in the public interest in order to prevent academic fraud, protect the integrity of academic qualifications, and inform the IBA as the potentially defrauded party. Misrepresenting qualifications for employment is widely understood as fraud and breach of contract. Their belief was reasonable. Furthermore, Dr Aftab had particular knowledge of the legal context in Pakistani higher education through his father’s position as a senior member of the sector. The claimants referred to Babula v Waltham Forest College. They said they relied on s.43C(1)(b)(ii) in asserting that this disclosure was protected, but without citing any facts in support of this specific provision.[277]The claimants made similar arguments in respect of the Fourth Disclosure. They reasonably believed the relevant failure was fraud or breach of contract by the Student towards the IBA. The IBA had legal responsibility because it was potentially disseminating fraudulent information through its website. The HEC is the body responsible for quality assurance and integrity in Pakistani higher education. The Student had potentially failed to comply with legal obligations under his employment contract and/or had committed the criminal offence of fraud under Pakistani law. The claimants again relied on s.43C(1)(b)(ii) but without identifying the facts necessary to establish that. More generally, the claimants submitted that academic fraud undermines the integrity of the entire higher education system, both national and international.[278]On the question of reasonable belief, the claimants submitted that it was their reasonable belief when making the disclosures that the LTH rules governing examination must be legally binding, as otherwise a degree has no credibility or value to society. They referred to the questioning during this hearing about legal obligations, and referred to a document (in the bundle, but not referred to during the evidence) purporting to relate to the University's formal regulatory framework. Under this, the Senate is empowered to grant degrees only to those who "shall have passed the examinations of the University under the conditions laid down in the regulations of the University".[279]The claimants referred to Shamoon on detriment, and Fecitt on causation, submitting that the disclosure must have materially influenced (more than trivially) the employer’s treatment. Causation can be inferred from primary facts, including timing, context, and the absence of a credible alternative explanation from the employer.[280]The claimants took the Tribunal through the individual detriments, dealing in each case with the questions identified in the List of Issues, as to whether the events happened, whether they amounted to a detriment, and the question of causation. They also addressed points to counter the respondents’ position, and included comments on the credibility of the respondents’ witnesses, by reference to their oral evidence on cross-examination.[281]In relation to the pleading point, the claimants submitted that the respondents’ contention was misconceived and should be rejected. All the detriments formed part of the properly pleaded case. These matters were detailed in the grievance documentation attached to and referenced within the Grounds of Complaint, providing the respondents with full notice of the matters complained of. They referred to a number of authorities on the question, for example citing Chapman v Simon [1994] IRLR 124, CA in support of the point that the purpose of pleadings in the Employment Tribunal is to provide fair notice to the opposing party of the case they must meet. They submitted that Tribunals should focus on the substance of the claim over procedural technicalities, avoiding an overly formalistic approach. Incorporation of clearly referenced documents providing particulars of the claims is permissible (Housing Corporation v Bryant [1999] ICR 123, CA). Read together, the ET1 and the appended grievance provided the respondents with clear and comprehensive notice of the full scope of the detriment allegations from the outset of proceedings. If the detriments listed in the appendix align with the core narrative pleaded in the ET1 (retaliation following protected disclosures), they form part of that substance.[282]The respondents had not demonstrated any genuine prejudice arising from this method of pleading. They were fully aware of all alleged detriments from the moment the claim was served. Their Response and subsequent witness statements engaged with these specific detriments, demonstrating they understood the case they had to meet. Furthermore, these matters had been subject to extensive case management directions and were explicitly included in the agreed List of Issues at this hearing.[283]Additional case law was cited in support of the argument that this was a case involving a "continuing state of affairs" or series of ongoing acts, referring to Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96. Allegations arising from the same "factual matrix" as the original claim should be considered part of that claim. Adding further particulars to existing claims, as the appendix does, is generally permissible (Cox v Adecco UK Limited [2023] EAT 105).[284]The Tribunal was therefore invited to find that all the detriments formed part of the properly pleaded case and should be considered accordingly.[285]The claimants made submissions on time limits. The claims were presented to the Tribunal on 26 August 2021. They submitted that the claims were in time, because although the primary time limit for bringing a detriment claim is three months beginning with the date of the act complained of, section 48(3)(a) provides that where there is a "series of similar acts or failures", the time limit runs from the last act or failure in that series. Alternatively, section 48(4) provides that where an act "extends over a period", it is treated as done at the end of that period.[286]The claimants contended that the numerous detriments constituted either "conduct extending over a period" or a "series of similar acts or failures" under s.48(3)(a) (Arthur v London Eastern Railway Ltd (t/a One Stansted Express) [2007] IRLR 58). They were linked by a common causative thread: retaliation by each of the respondents for making protected disclosures. They represented a campaign of victimisation involving the same key actors. The sustained pattern of detrimental conduct spanning from early 2020 through to mid-2021, clearly constituted such an ongoing situation or state of affairs aimed at penalising the claimants for their disclosures.[287]The claimants pointed to several significant detrimental acts occurring within the primary three month limitation period preceding the presentation of the claims on 26 August 2021 (acts occurring on or after 27 May 2021). Specifically:287.1 Detriment Aftab D16: The final decision rejecting Dr Aftab’s promotion application in the 2020/2021 round was communicated on 10 August 2021.287.2 Detriment Aftab D17/Scarpa D19: The letter of concern dated 21 July 2021.287.3 Detriment Aftab D1: The failure to send suitable PhD applications was ongoing throughout this period and continuing.287.4 Detriment Aftab D14/Scarpa D16: The obstruction of the investigation by Prof Hart continued until she left the University in March 2022.[288]As the last acts in the series or the end date of the conduct extending over a period fall well within three months of 26 August 2021, the entire series of detriments or the continuing act was in time pursuant to s.48(3)(a) or s.48(4) ERA 1996. The claimants submitted that the alleged detriments were not merely consequences of one single past act but a series of distinct acts or omissions constituting an ongoing campaign or state of affairs.[289]In the alternative, the claimants submitted it was not reasonably practicable to present the claims before the primary time limit expired. They acknowledged that the test is strict though fact-sensitive, referring to Palmer v Southend-on-Sea Borough Council. They identified some factors preventing earlier presentation of their claims, including:289.1 The insidious and cumulative nature of the campaign of detriment, where the full extent and gravity only became apparent over time.289.2 Their engagement with lengthy internal processes dealing with the disciplinary and grievance issues. While these do not automatically stop time running, relying on them in good faith, particularly when mandated or encouraged by the employer, can be a factor in considering reasonable practicability (Wall's Meat Co).289.3 The significant impact of the detriments on Dr Aftab's health and well-being, including stress, anxiety, and the flare-up of a chronic condition, which impaired his ability to focus on initiating litigation sooner.[290]The claimants pointed out that their claims were brought promptly (within weeks) after the final act in the series (the promotion rejection outcome on 10 August 2021), which crystallised the ongoing nature of the victimisation. E. RESPONDENTS’ SUBMISSIONS[291]On behalf of the respondents, Ms Millns made submissions by reference to a skeleton argument, annotated tables of the alleged detriments, and a summary of legal principles. The latter is more or less reflected in the above section on legal principles.[292]Ms Millns submitted that the claimants' allegations about Prof Anbarci and Prof Hart were serious and potentially career ruining. They were not only devoid of merit but contained baseless exaggeration at every turn.[293]The claimants' claims were far from obvious, and their witness statements failed to set out the most basic components of their claims with any coherency. Their cross examination of the respondents’ witnesses failed to put a positive case of whistleblowing detriment to be answered. This case was not about whistleblowing, but about a breakdown in a student-supervisor relationship. The dispute arose out of self-interest and frustration from the claimants. They had not helped themselves by speaking to a long list of individuals about their concerns and failing to be transparent about who they had spoken to, which created unnecessary confusion and delay. The change of Head of Department with a lack of detailed handover additionally created some confusion, but must be viewed against the backdrop of the pressure on the department as Covid-19 struck, as well as the exceptionally serious issues in the personal life of Professor Anbarci.[294]The claimants’ dogmatic stance toward attribution, and their concerns about the PhD process, were dealt with. That was down to the hard work of the department (led by Prof Anbarci) up to to executive level through the joint judgment. The claimants were not treated unfairly for raising those concerns though the way they went about raising them became an issue. When they took matters into their own hands by writing to the IBA (without permission) the University was entirely justified in investigating their conduct and issuing a letter of concern.[295]On credibility, Ms Millns raised concerns about the apparent similarities in content of the claimants’ witness statements. She said there were many identical passages or phrases within them which showed that their statements were not written independently. Both denied writing the statements together or using the other as a template, and their explanations for that similarity were incredible. Ms Millns also criticised the claimants for the way they gave their evidence and the attacks they made on the characters of Prof Anbarci and Prof Hart, describing Prof Scarpa’s “character assassination” of Prof Hart as “gratuitous, opportunistic” and unsupported by the evidence. None of the exceptionally serious allegations were made out on the evidence. Dr Aftab made bold allegations about Prof Hart in his grievance and again in evidence, using “inflammatory language for effect only”. the claimants' categorisation of Prof Hart was “vicious” in her submission, and had a severely detrimental effect on their credibility.[296]By contrast to the claimants, Prof Anbarci and Prof Hart gave their evidence in a thoughtful, considered and straightforward way, despite facing these personal attacks on their character. They were consistent with their witness statements and made appropriate concessions when needed. The reason for their treatment of the claimants was not influenced by any information they had disclosed as part of any alleged protected disclosures.[297]On the substantive merits, Ms Millns challenged whether the claimants in fact made protected disclosures. In all four cases, the respondents had conceded that the letters and emails did contain disclosures of information. The Tribunal should consider the case of each claimant and each disclosure separately, and apply the five-stage test in Chesterton. She acknowledged that the factual basis for all four disclosures was the same for both claimants.[298]Notwithstanding the concession in the List of Issues that there were disclosures of information, Ms Millns made the point that the claimants' witness statements did not refer to the items of information pleaded. She submitted that they could rely only on the information set out in the statements in making their case.[299]As for public interest, the claimants bear the burden of proof that their disclosures were in the public interest and that any such belief was reasonably held. The claimants had failed to establish that belief in the case of the First Disclosure. It is significant that their witness statements were drafted on an incorrect basis, as if the claimants were trying to persuade the Tribunal their disclosures generally were made in the public interest. This is an error of law and the Tribunal must be satisfied that the information disclosed was in the genuine and reasonable belief of the claimant to be in the public interest.[300]The focus in the First Disclosure letter was only a concern about a breach of the internal rules in the LTH. That related to only one student and was not a systemic issue.[301]Referring to Prof Scarpa’s email to Prof Houston on 27 November 2019, Ms Millns said he had described the issue as a “minor” one. The contemporaneous language did not equate with a belief by the claimants that they were whistleblowing in the public interest.[302]Significantly, neither claimant used the whistleblowing procedure, despite the grievance procedure referring to it. The first time the language of whistleblowing was used was on 31 May 2021, in the context of providing information to Prof Fawcett’s investigation. The use of the word ‘whistleblowing’ was tactical, to provide a defence to the disciplinary allegations. On their own case it took the claimants 19 months to acquire the belief that they had made a disclosure in the public interest. The reality is the term was deployed when it suited their case. Ms Millns submitted that this was a significant matter going to credibility.[303]Alternatively, even if the Tribunal accepted that the claimants believed the First Disclosure was in the public interest, that belief was not reasonably held. This is because the numbers in the group whose interests the disclosure served was minimal, and the information was serving the interests of the claimants and/or the Student only. The nature of the alleged wrongdoing was minor. It involved the appointment of an internal examiner who did not have the required subject-specific expertise, but the viva process also involved an external examiner.[304]The identity of the alleged wrongdoer was also relevant. On the claimants' case, this was Prof Damjanovic, as she had appointed Prof Ashworth as the internal examiner. Her role as PhD Lead in the Business School was not a position having any impact on the wider public.[305]The fourth and fifth steps relate to the need to show failure to comply with a legal obligation. The claimants relied on breaches of the LTH, and had failed to establish that the information tended to show any failure to comply with a legal obligation. It was not possible to say that the breach of a legal obligation was obvious, or that they had identified, sufficiently or at all, within the disclosure itself the legal obligation said to have been breached as per Blackbay. The claimants had identified breach of internal rules only.[306]Further, the claimants’ credibility on this point was completely undermined by the dramatic changes to their pleaded case over various iterations. For example, this started with references to violations of university regulations, then legal obligations placed upon them by royal charter, and later they referred to a belief in an express or implied term of the University's contractual obligations with staff and students. In their witness statements they failed to identify any legal obligation, simply saying there must be some legal obligation in existence in order to ensure academic integrity in assessing PhDs.[307]The Tribunal must identify the legal obligation as per Blackbay and Eiger Securities and based on the claimants’ case as pleaded, this is not possible. This specificity is required at the stage of any eventual Tribunal complaint, where it is reasonable to expect the claimant to make clear what the infringed legal obligation was. More than 4.5 years after the First Disclosure was made, the claimants were still unable to identify any legal obligation that the information tended to show had been breached.[308]Alternatively, any such belief was not reasonably held. Reasonableness must take account of the claimants’ standing as senior academics. It was entirely unreasonable for them to believe that breach of internal guidance in the LTH was anything more than that. It was telling that neither claimant was able to explain how he believed a breach of the LTH would be dealt with beyond the parameters of the University.[309]Addressing the Second Disclosure, Ms Millns accepted that the claimants' witness statements referred to the information disclosed as set out in the List of Issues, the first three of which referred to breaches of the LTH. The respondents relied on similar arguments for submitting that the Second Disclosure was not a qualifying protected disclosure, based on the absence of any public interest or any breach of a legal obligation, and a lack of any reasonable belief in either.[310]The letter dated 19 May 2020 made no reference to whistleblowing or public interest and referred instead to an infringement of the LTH regulations as well as “academic standards and integrity in assessment and examination of our PhD student at the time”. These words showed that this was a specific issue relating to one student.[311]The issue raised in the Third Disclosure related to the potential wrongdoing of one student in respect of his employment and was plainly not in the public interest. The alleged wrongdoer had changed from previous iterations of the pleadings, where the claimants had first alleged that the University and later that the IBA was the wrongdoer.[312]With the Fourth Disclosure the claimants had failed to establish that they believed this was in the public interest or that their belief was reasonably held. The issue related to the potential wrongdoing of one student in respect of his employment and was plainly not in the public interest. In the List of Issues the claimants did not refer to a belief that the Student had committed a criminal offence in Pakistan, as set out in their witness statements. The claimants should not be permitted to amend their claims to include a belief that the information tended to show that a criminal offence had occurred or was likely to occur.[313]Ms Millns referred to examples of how the claimants' pleaded case had changed over the course of drafting their formal pleadings and further particulars. She submitted that this undermined any credibility in the claimants’ claimed beliefs in what they were disclosing. Their positions had changed significantly over time.[314]The Fourth Disclosure did not qualify for protection because the HEC of Pakistan is not a ‘responsible person’ for the purposes of section 42C(1)(b)(ii). The claimants had failed to provide any evidence about this in their evidence.[315]Finally, in her skeleton argument Ms Millns referred the Tribunal to the Grounds of Resistance summarising the respondents’ position, which was that the claimants were not entitled to rely on matters contained in the grievance attached to the form ET1, and they had not applied to include them formally in their pleadings by way of amendment.[316]The respondents’ submissions on each of the alleged detriments were contained in the separate tables of detriments. The detail is not repeated here, but has been taken into account in making the above findings of fact and in reaching our conclusions. In general terms, Ms Millns invited us to agree that the claimants' allegations were not supported by the facts, and there was no evidence of any causal connection between any protected disclosure and any treatment. At best, there may be a temporal connection. Any treatment was not materially influenced by any protected disclosure. She referred to the respondents’ feelings of justified frustration with the manner in which the claimants had raised their concerns, for example ignoring the ‘line of command’ and writing to the IBA on formal letterhead. F. CONCLUSIONS (1) General conclusions and credibility[317]In reaching our decision we have taken into account all the matters raised before us by the parties, though we do not aim to touch upon them all in this already lengthy judgment. If there are any omissions from the findings of fact or these conclusions, it does not follow that those matters were ignored by the Tribunal.[318]This case had a somewhat troubled history, with a protracted series of procedural steps involving multiple iterations of the claimants’ pleadings and difficulties collating details of the many detriments. This history was more or less irrelevant by the time of the final hearing, but the Tribunal observes that the presentation of the case by both sides made the issues unnecessarily complex and at times almost impenetrable. It became the Tribunal's task to piece the factual issues together in a sensible chronological order, and to simplify the documents so as to address what really mattered to the parties in these claims. Some of the claimants' alleged detriments were presented in an over-complicated way with overlapping detail. Some were insignificant yet took up time in the hearing, most obviously joint detriment 10 in which they felt a letter had been misrepresented. The respondents took points that detracted from the main issues, such as seeking to exclude from consideration some emails relating to detriment Aftab D5/Scarpa D4 only because they were not properly transcribed into the List of Issues.[319]Of more significance is that the respondents did not lead a positive case in their evidence in chief. We found this surprising, especially in light of the burden of proof under section 48(2) of the Act. We would have expected them to offer explanations for the obvious deterioration in the relationship with the claimants, both successful academics with whom neither Prof Anbarci nor Prof Hart had had many prior dealings. Evidence about this had to be elicited from the witnesses through Tribunal questions after cross-examination.[320]The essential facts in this case were not in dispute, and most interactions between the parties were documented in the many emails and the internal investigation records. The latter had limited relevance to the detriment claims, as the claimants’ complaints about the disciplinary investigation were limited to the instigation of this step, and the letter of concern which resulted. There was no allegation about the handling of the grievance or the length of time that took.[321]Both sides invited us to doubt the credibility of the others. While it was not strictly necessary – given the undisputed facts – to decide whether any individual was unreliable in their evidence, overall we preferred the evidence of the claimants as to the conclusions to be drawn about the respondents' conduct and the reasons for it. Ms Millns tried to persuade us that the claimants were not credible, based on some passages (all uncontentious) in their respective witness statements which suggested they had worked together in the drafting. We were not persuaded that this point had any merit. In any event, the claimants plainly did collaborate at every stage of the internal communications and acted jointly in these proceedings.[322]The claimants' prior conduct of these proceedings did create some difficulties and contributed to the somewhat unwieldy nature of this case. However, what was striking to the Tribunal during oral evidence was their sincerity and strongly-held beliefs in the importance of the issues they raised. That was the case during the internal stages (as noted by the investigators) and at this hearing. We agree with the respondents that they did not always go about things in the best way, or the correct way. Indeed, Dr Aftab tested the Tribunal's patience on more than one occasion, in the context of managing his health issues and taking direction from the Tribunal. However, none of that cast any doubt on his credibility. Both he and Prof Scarpa were very credible during their evidence and displayed their deeply held convictions about the underlying issues.[323]We do not therefore consider that the claimants' credibility was in question at any time. They are clearly very principled, and were perhaps overzealous in their handling of these events, but their credibility was not undermined. They genuinely believed in their cause and in the existence of a legal obligation.[324]We did have some reservations about the evidence from the respondents' witnesses, particularly Prof Anbarci and Prof Hart. Firstly, as noted above, they offered no explanation for the hostility that evidently developed in their attitude towards the claimants by the middle of 2020. Instead, they defended their actions with a certain amount of complacency, making virtually no concessions and even then, only if pressed. We would have expected some acknowledgement that some matters could have been handled better, especially in respect of communication, alongside their reasons for why relationships became fractured. That very fact, even if not caused by whistleblowing, needed a cogent explanation. The initial (and understandable) irritation about the claimants going to both Prof Houston and Prof Hart in late 2019 should have long since passed by May 2020.[325]We were also surprised that the respondents did not draw the Tribunal's attention to the two internal whistleblowing reports in the bundle, which were not referred to in oral evidence until we asked about them. Yet they pursued very emphatically the argument that the claimants were not acting in the public interest, when their own whistleblowing report makes plain that the upholding and maintenance of academic standards do in principle amount to a matter of public interest.[326]At times the respondents' witnesses displayed a lack of respect for the Tribunal and its process. For example, as we were adjourning for a short break on a day when a UCU representative was observing, Prof Anbarci made an unwarranted and unsolicited rude comment about the representative. It was very disrespectful to him, and also to the claimants and the Tribunal.[327]Prof Przyborski made a poor impression on the Tribunal. He was utterly unprepared to give evidence, despite the timetable being adapted for his convenience. He obviously had not re-read even his own witness statement, being visibly surprised by questions about his own words in that statement, which he did not recognise. He seemed bemused by questions about the distinction between the words ‘thesis’ and ‘dissertation’. In fact, the confusion he was being asked about related to something else: whether the claimants had been referring in their 3 July 2020 email to the Student or to the Student’s work. Overall, we found Prof Przyborski’s demeanour in the Tribunal to be disdainful.[328]We found Prof Hart to be a measured witness whose answers were carefully thought out and presented. Her preparedness was commendable but she sometimes forgot she was there to answer questions and tended often to make points of argument. Overall, we found her evidence very calculated. On the detail of the issues, Prof Hart undermined her credibility by emphasising that her role as executive Dean was a strategic one, while also demonstrating that she was repeatedly involving herself in operational issues. This was most notable in respect of Prof Scarpa’s allegations about his work at Waikato. (2) The pleading point[329]The Tribunal rejects the submission that the claimants could not reply on the detriments (marked in italics in the Appendix) which featured in the grievance attached to the ET1 but not in the body of the pleadings. Following Chandock v Tirkey, it is for the claimants to properly identify the case to be answered, with enough detail to enable the respondents to defend themselves. Likewise, the Tribunal expects the parties to reach an agreed position on a List of Issues, especially when both sides are legally represented. A List of Issues should be reliable and accurate, but even the respondents made errors of transcription in the document presented to us. A key question is prejudice, and we have to take account of the overriding objective to put the parties on an equal footing and act proportionately. Some of the ‘pleading point’ detriments were actually subsets of others, such as detriment Aftab D7/Scarpa D6, which related to the same facts in Aftab D6/Scarpa D7.[330]For example, our findings of fact are based on the entirety of the chain of emails relating to detriment Aftab D3/Scarpa D2, even though the respondents invited us to exclude 6 occasions when a meeting was requested. They relied on the fact that in different iterations of the documents, 6 emails were not included. It was clear from the facts what the claimants were alleging and taking this point did not assist the respondents’ case. It is in the interests of justice that the Tribunal view the issue and the relevant evidence in the round.[331]Following Pranczk v Hampshire CC UKEAT 0272/19, the factual elements of the claims have to be asserted “one way or another” from the claim form. In the present case, the claim forms annexed the claimants’ grievances. That was not the most helpful way to articulate their specific allegations of detriments, but nevertheless, and with the benefit of robust case management, the allegations became clear and were understood by the respondents. They were able to prepare their answers to all the allegations well in advance of the hearing.[332]We do not consider that in this case the respondents were under any illusion about the nature of the detriments alleged by the time of the final hearing. They may not have understood the position so clearly in the early stages of the claims, but after multiple preliminary hearings and case management orders, leading to the provision of further information and tables of detriments, this issue was long superseded before the final hearing. The origins of the allegations in question were in the grievance document attached to ET1s, albeit the case had to be clarified later.[333]For similar reasons, we reject the argument that the claimants could not rely on aspects of their disclosures if they were referred to in the pleadings but not in their witness statements. This was an unattractive argument which detracted from the Tribunal's task of limiting unnecessary formality and doing justice to the issues to be heard. It is not unusual for parties – even those with the benefit of legal representation – to omit key matters from their witness statements. We have already alluded to the absence of a positive case in the respondents' statements. (3) The 4 disclosures[334]Turning to the four disclosures themselves, we have considered the various elements of each one in applying the five stage test under Williams v Brown. The fact that in each case there were disclosures of information was not in dispute. The respondents did challenge the public interest requirement, whether the information tended to show a breach of a legal obligation, and the reasonableness of the claimants' belief in both of those elements. First Disclosure – Letter of 4 November 2019 to Prof Houston and Prof Mark Allen.[335]This disclosed four items of information, all relating to the process of appointing examiners, giving the claimants access to the Student’s thesis and excluding them from the viva process. All of these matters fell within the ambit of the LTH containing the University's rules and guidance on the supervision and examination of a PhD thesis.[336]The claimants did believe that these were disclosures in the public interest, because they saw them as “serious concerns about violations of Durham University’s regulations with respect to academic standards and integrity of assessment”, as well as “processes to safeguard appropriate acknowledgement of intellectual property rights and contributions as well as of identification of potential plagiarism”. We find that it was reasonable for them to hold that belief.[337]The respondents said the claimants were not credible in their evidence, and their main concern was to protect their own IP rights and prevent their work potentially being plagiarised by the Student. We do not agree. The First Disclosure made plain that the claimants viewed the matters raised as having broader implications for the University and for the upholding of academic standards. They felt that if they had not raised their concerns, and had the issues had become more widely known, there could have been implications for the University.[338]Dr Aftab’s belief in public interest was also based on knowledge of the University's Ethics and Governance statement on Research Integrity Policy and Code of Good Practice. This recognises that “research integrity is a complex area, encompassing statutory and legal requirements, and with drivers and expectations coming from funders, professional bodies, and 3rd sector groups as well as the University. He became familiar with the principles underpinning academic integrity while managing the PhD programme from 2015 to 2019. He said in oral evidence, and we accept, that this was on his mind when making the First Disclosure.[339]The claimants’ belief in the breaches of the LTH were in our view reasonable. We take into account the context in which these experienced academics reached their belief, based on their time at the University and also in other academic institutions. Their concerns were focused on one student, but they were also raising a point of principle that was important to them. Their genuine concerns were expressed in terms relating to academic standards and reputational issues affecting not only the University but also academic staff.[340]We do not find it difficult to consider the upholding of academic standards a matter of public importance, having regard to the numbers of people whose interests might be affected by such a disclosure, and the significance of those issues to the world of academia. Maintaining the integrity of academic qualifications is of great importance, not only to the many students involved but also their prospective employers. If it were possible for a student to be awarded a PhD in circumstances where his work was not supervised or examined correctly, for example, that would be a serious concern with potential implications for the reputation of that university and its academic staff. Public confidence in the value of the qualification, such as that placed in the system by employers of graduates, could be undermined. Other stakeholders, such as funding providers, may also have a legitimate interest in standards being upheld. Dr Aftab stressed in evidence that standards have to be embedded otherwise no one would have any faith in the UK academic system. A PhD is supposed to add to the body of knowledge in the field, and only academics can do that.[341]In support of this conclusion, we take into account the University's whistleblowing report dated 23 July 2021 which stated that: “matters relating to standards and quality of degrees awarded by the University would fall within the scope of a public interest disclosure”.[342]The fact that the claimants also had a personal interest in the matter did not prevent it from also being a matter of public interest – Chesterton Global.[343]Even if the claimants were motivated partly by the protection of their IP rights and the Frankfurt data, that was not a purely private interest but a professional one closely tied to their academic responsibilities. Prof Scarpa had no interest in the Frankfurt data for his own work. Dr Aftab did, but the value of the small grant which funded the data was a drop in the ocean in the context of his significant success in obtaining other grant funding.[344]The next question was whether the information disclosed tended to show a failure to comply with a legal obligation, in accordance with section 43B(1)(b) of the Act. On this point we accept that the University's LTH amounted to internal rules and guidance only, and any breach of those rules, no matter how important within the University context, did not give rise to any obligation in law. Per Eiger Securities, it is not sufficient for there to be a failing of another kind, such as a breach of rules, as it must relate to a legal obligation.[345]When questioned about this in evidence, Prof Scarpa said he believed there was a legal obligation to enforce the LTH. He said: “I don’t have any evidence but I do believe that the university must respond. Within the university there must be some legal method of enforcement and legislation out there.” In his witness statement, Dr Aftab said “I reasonably believe that the LTH regulations created a legal obligation because this would be the most plausible and practical way to ensure academic integrity in assessing the highest and most prestigious degree the university awards.”[346]In effect, the claimants' evidence amounted to their having an expectation and desire that such rules ought to be legally enforceable, but no actual legal obligation could be identified. For this reason, we conclude that the First Disclosure did not amount to a protected disclosure under the Act. Second Disclosure – Letter of 19 May 2020 to Prof Houston and Prof Hart.[347]Like the First Disclosure, this raised issues about the “academic standards and integrity in assessment in our flagship Doctoral Degree Programme”. Two of the four items of information related to the appointment of examiners and the requirements of the LTH. The complaint that the claimants had not been given an opportunity to have a second round of reading of the Student’s thesis, to ensure that their contributions had been acknowledged and to avoid plagiarism, was an issue about the implementation of the joint judgment.[348]The fourth element of this disclosure, however, had a different character. The claimants alleged that the Student had incorrectly and fraudulently represented to the IBA that he had completed his PhD at the University in 2019, and had apparently been awarded an academic position as a result. Evidence in the form of a link to the IBA website was provided. The factual basis of the allegation was correct.[349]The claimants both believed that the Second Disclosure letter was a matter of public interest. In his witness statement Prof Scarpa explained that: “I firmly believe that the need for a second whistleblowing was in the public interest since it demonstrates that despite having appealed to a higher authority within the hierarchy of the university and this authority having agreed with the highest authority within the Business School (the third respondent Executive Dean), that a corrective course of action was needed in favour of safeguarding the integrity of the PhD evaluation process”.[350]For the same reasons as above, we conclude that the claimants genuinely and reasonably believed that the information in the Second Disclosure was disclosed in the public interest. Having put their trust in the confidence of the process, the claimants felt that trust had been misplaced. They believed there had been clear breaches of the LTH, and that this had wider implications than for just one student.[351]We note that in the months following the First Disclosure on 4 November 2019, there had been some attempts to look at whether plagiarism had taken place and to prevent potential academic fraud. However, the claimants had not always been kept informed of what was happening. After a number of internal steps were taken, the appointment of examiners in May 2020 combined with the discovery of the Student’s profile on the IBA website, triggered this further letter.[352]On numerous occasions at around this time the claimants had asked for a meeting with Prof Anbarci, their line manager, but those meetings had not happened. Prof Anbarci had delegated certain tasks to Prof Phillip, but the claimants were not initially told what his remit was. They were particularly concerned about the appointment of a non-subject-specific expert as the internal examiner which again appeared to undermine academic standards and the claimants’ own academic standings. We find that it was reasonable for them to believe that these concerns were raised from a public interest perspective, because by May 2020 there were ongoing questions about the resubmitted thesis and the examination.[353]So far as the information disclosed was about breaches of the LTH, we reached the same conclusion as for the First Disclosure: there was no legal obligation for the purposes of section 43B(1)(b) of the Act.[354]We gave careful consideration to the question whether the fourth item of information tended to show a relevant failure under section 43B. On this, we reach a different conclusion. The claimants made an allegation of fraud. Whether that is a civil or criminal breach, fraud takes a variety of forms, but it is no doubt unlawful. Under section 43B(2), it makes no difference that the alleged wrongdoing occurred or would occur outside the UK.[355]In their evidence both claimants explained, with some conviction, that they understood the Student’s actions to amount to “an offence under the applicable criminal law in Pakistan, especially when used to obtain paid employment to which one would not have access otherwise” (Prof Scarpa’s witness statement). Dr Aftab said: “We reasonably believed that falsely claiming a PhD from DU to claim employment in Pakistan likely constituted a criminal offence in Pakistan and that DU should make them aware of it. We reasoned that if the same thing had happened in the UK, it would constitute a criminal offence. If the tables were turned, DU would have expected and appreciated being informed by the Pakistani institution.” He added that it was “in the public interest to prevent fraud”.[356]When cross-examined about this in relation to the Third and Fourth Disclosures, Dr Aftab gave evidence which has a bearing on the Second disclosure. It was put to him that Prof Scarpa said he was not sure if there was a breach of civil, criminal or administrative law, but that “there was something”. Dr Aftab replied that he potential academic fraud was a breach of criminal law in Pakistan. He learned this through his father who is a Vice Chancellor of the oldest university in Pakistan, and worked for the HEC. Prof Scarpa was guided by Dr Aftab's better knowledge about the position in Pakistan. This personal understanding is one factor in support of the claimants' belief being reasonable, per Korashi.[357]Fraud, whether or not expressed as “academic fraud”, could give rise to criminal action or could give rights through civil proceedings such as a claim for damages for fraudulent misrepresentation. Even though the claimants did not have a full or accurate understanding of the legal position when making this disclosure, it is not difficult to characterise the fourth item of information as tending to show a breach of a legal obligation under section 43B(1)(b) or a criminal offence under 43B(1)(a). It might be said to be obvious, in the Bolton School sense. It is identifiable and capable of being verified – Blackbay Ventures.[358]It is not necessary for a whistleblower to be correct in his interpretation of the law, provided he reasonably believes that the information disclosed tends to show such wrongdoing (Babula).[359]For these reasons, we conclude that the allegation of fraud in the letter of 19 May 2020 was a qualifying and protected disclosure under the Act. We shall now refer to this as the Protected Disclosure in the following conclusions. Third Disclosure – Letter to the IBA dated 5 June 2020.[360]This disclosed three items of information: that the Student had not completed his PhD at the University; that the IBA website was representing that he had done so; and the IBA was representing a mistruth and thereby technically partaking in fraud. The letter stated: “As you are aware, academic fraud is a serious offence, especially if it is used to leverage an academic position and we sincerely hope your institution has not been deceived.”[361]We again accept that the claimants reasonably believed that the Third Disclosure was in the public interest, for the reasons already given. In his witness statement Prof Scarpa explained that he and Dr Aftab believed “it was in the public interest to inform the IBA that the student did not have a PhD to prevent academic fraud in a country that is rife with it and struggles to contain it. As an economist with a past in Italy, I know too well the negative effects of corruption on the economic development of a country… The IBA was broadcasting this academic fraud. This broadcast had inevitably reached the internal group of PhD students at Durham who knew the actual status of this person to still be a PhD student and not a PhD graduate yet, with consequences on reputation one can imagine.” This was a broad statement but not challenged on cross-examination.[362]Prof Scarpa said he believed the Third Disclosure showed that the IBA were failing to comply with a legal obligation to which they were subject “as an entity awarding educational titles”. He believed that a criminal offence was being committed by virtue of the Student stating publicly to have a qualification he did not possess, for the purpose of obtaining paid employment.[363]Dr Aftab made similar points in his witness statement, describing “academic fraud” as a serious offence, especially if leveraged dishonestly to secure an academic position. He believed it was in the public interest to inform the IBA that the Student did not have a PhD, to prevent academic fraud and misrepresentation. He expected the IBA to contact the University immediately and ascertain the facts, so it could determine whether academic fraud had occurred. He again relied on an understanding based on his father’s knowledge of the Pakistani higher education and legal system. Prof Scarpa relied on this source of information through Dr Aftab.[364]The claimants' understanding was that the Student was the wrongdoer. They did not do any research on the specifics, but discussed it between themselves at the time of making the disclosure, and had the benefit of Dr Aftab's father’s input. The claimants also held genuine (though unsubstantiated) beliefs that educational standards were monitored in other countries, citing Germany as one example. They believed it was fraud and that it was in the public interest for fraud to be identified and prevented.[365]In principle the information disclosed in the letter to the IBA could tend to show a failure to comply with a legal obligation and/or the commission of a criminal offence, at least in Pakistan. Part of the claimants' motivation for sending it was that they felt the University was “brushing this matter under the carpet” and that “action had not been taken despite ample evidence and insistence from us”. In this context, we accept that the claimants' belief in the information tending to show a breach of the civil and/or criminal law was reasonable, given their knowledge and understanding at the time.[366]That said, we do not find that the Third Disclosure was protected under the Act, because it was made neither to the claimants' employer nor to a responsible body. The claimants did reasonably believe that the relevant failure related solely or mainly to the conduct of the Student, but they produced no evidence that the IBA had legal responsibility for the matter in order to meet the requirement of section 43C. Fourth Disclosure – Email to the HEC dated 26 June 2020.[367]In this email the claimants disclosed the three points as they had done in the letter to the IBA. Prof Scarpa’s evidence was that he felt “compelled to report the matter to the HEC to ensure that the IBA took our concerns seriously and investigated them properly in the public interest”. Dr Aftab said he felt compelled to report it to the HEC, “knowing the prevalence of academic fraud in Pakistan”.[368]Our conclusions on this disclosure are the same as for the Third Disclosure. This was not a protected disclosure because it was not made to the claimants' employer or to a person with legal responsibility for the matter, in accordance with section 43C. (4) The alleged detriments[369]In considering the many alleged detriments, we reviewed and assessed the evidence in the round and through this process were able to arrive at our conclusions. We considered each element of the four disclosures and worked through our analysis of each alleged detriment. Ultimately we decided that only the allegation of fraud disclosed in the Second Disclosure amounted to a qualifying and protected disclosure under the Act. The following discussion of our conclusions on the detriments does, however, reflect the broader exercise we carried out. Aftab D1 – referral of potential PhD students[370]Dr Aftab alleged that the University failed to send him any potential PhD student applications from candidates who met its minimum entry requirement after the First Disclosure to date.[371]In the List of Issues this allegation is said to relate to the period from 4 November 2019, the date of the First Disclosure. However, in his witness statement Dr Aftab identified August 2019 as the time when he began to experience problems with the referral of potential PhD students. This coincided with Prof Damjanovic taking over from him as PhD Lead. Her obvious animosity towards Dr Aftab, expressed in such strong terms in April 2020 is also relevant. Even on Dr Aftab's own case, he was unhappy about aspects of her decision-making from August 2019, which predates all of the disclosures. Aside from the lack of evidence supporting the change in numbers of students referred, this displaces any suggestion that there was a causative link between the disclosures and the alleged detriment. By April 2020 Prof Damjanovic’s hostility was making itself known very plainly, and this predated the Protected Disclosure.[372]Aside from the general difficulty of there being no data from which to identify any change in the numbers of potential PhD students, there was certainly nothing in the limited evidence provided to suggest a change in the numbers referred to Dr Aftab after the making of any disclosures. Even if there had been evidence of any change in the way referrals were handled, we are satisfied that the reason had nothing to do with any of the four disclosures. Aftab D2 – time to review thesis[373]Dr Aftab alleged that Prof Anbarci refused his requests dated 14 and 18 May 2020 for sight of the Student’s resubmitted thesis on 20 May 2020, and thereafter only permitted him three days to review the resubmitted thesis.[374]The claimants were initially given a partial copy of the new thesis and told that the jointly-authored paper had been removed. Other changes were minor, but they insisted on seeing full copy as agreed through the joint judgment. The respondents, especially Prof Anbarci, had a perception by now that the claimants were being unnecessarily difficult or demanding.[375]Prof Anbarci's witness statement contained no rebuttal of this allegation. In his statement he said he was not aware of the resubmitted thesis until 14 May, but then he was involved in the flurry of email exchanges in the week that followed. We find that Prof Anbarci was involved in the decisions about the thesis and he did have time to review the attribution report with Prof Phillip. Initially he did not agree to the claimants’ requests for sight of the Student’s resubmitted thesis. It is clear that Prof Damjanovic would have refused to provide the claimants with the revised thesis, but we have no evidence about whether she influenced Prof Anbarci’s handling of the situation. Although Prof Anbarci delegated the matter to Prof Phillip, he did not communicate the position to the claimants or explain what the ambit of his authority was. At that stage the joint judgment was not being followed correctly, as the claimants had been assured of a second reading.[376]The issue was made more complicated that it needed to be, due to the respondents' lack of communication with the claimants. That was unsurprising at a time when the Covid-19 pandemic had just taken a grip, and the Tribunal has no doubt about the pressures on management arising from this. At the same time, Prof Anbarci was experiencing an extremely stressful personal situation. Nevertheless, we found it odd that Prof Anbarci had the time to review the claimants' attribution report and yet he could not find a few minutes to talk to them, whether by email or Zoom, to help reassure them that steps were being taken to implement the joint judgment.[377]We attach no weight to the respondents' evidence about how unusual the claimants’ requests in relation to the thesis were. They were following their understanding of the joint judgment, which was in keeping with the LTH. The claimants had by then lost trust in the Student because he had tried to include their joint publication without attribution. Even with the claimants’ work being accredited, they felt strongly that it it was not appropriate to include the joint paper as it was not an independent piece of work. We also did not accept Prof Anbarci's evidence that these were actions of an “academic kid” who would try to push boundaries, even knowing it was wrong. It is the University's responsibility to stop plagiarism from happening and to guide students on the standards required. Every schoolchild knows not to copy work, and yet in this case the Student’s actions seem to have been treated seriously only by the claimants.[378]Initially Prof Anbarci did not agree to the claimants’ requests for sight of the resubmitted thesis, but we do not find that this was a “refusal” as alleged. Prof Anbarci’s responses to the claimants did show a reluctance to assist them. Everything had to be challenged and pressed forward by the claimants in order to be actioned. If they had only been able to talk to each other in a short meeting, this could have been resolved. As for the allegation that the claimants were given only three days to review the thesis, we find that this was presented as a request not an insistence, in circumstances where Prof Phillip did not feel they needed to review the whole document. In fact the claimants were able to take longer, and responded after about a week.[379]We find that this was not a detriment. In any event, we are not satisfied that there was any evidence with which to conclude that the handling of this issue was related to the First Disclosure, which was not a protected disclosure under the Act. Aftab D3 / Scarpa D2 – refusal to meet[380]Both claimants alleged that Prof Anbarci refused to meet with them on 8 separate occasions to address their concerns set out in the First and Second Disclosures between 22 May 2020 and 1 June 2020.[381]Our findings of fact are based on the entirety of the chain of emails relating to detriment D3/D2, even though the respondents invited us to exclude 6 occasions when a meeting was requested. It was clear from the facts what the claimants were alleging and the respondents’ point did not assist their case. It is in the interests of justice that the Tribunal view the issue and the relevant evidence in the round.[382]We find that the sequence of emails at that time demonstrated that Prof Anbarci did not want to meet the claimants to discuss the issues. He was in email exchanges on 18 and 19 May with Prof Damjanovic, who was vocal in her criticism of the claimants and in her opinion they should have been excluded from the Student’s affairs. Mr Appleton’s reply to her on 19 May was an attempt to calm the situation and keep things on track with the implementation of the joint judgment. He recognised the claimants' concerns and that steps had been taken to rectify them. When the thesis was then resubmitted, the claimants were asked, if possible, to carry out their review within a 3 day period. They found this time frame unacceptably short, especially given the pressures of marking exam papers during that period.[383]Prof Anbarci was undoubtedly involved in the decisions about the thesis and he also had time to review the attribution report with Prof Phillip, while claiming to be too busy to meet the claimants. We accept that Prof Anbarci was under great pressure at this time from the impact of Covid-19 and a personal family crisis. Unfortunately he did not tell the claimants that he was experiencing this crisis. He did not even take a moment to explain to the claimants that he had delegated the issue to Prof Phillip, or what his remit was. Yet Prof Anbarci had time to go through the attribution report with Prof Phillip and also to respond to issues raised in Ms Prof Damjanovic’s emails. He was exasperated with her, but had no reason to be exasperated with the claimants at that stage.[384]We conclude that Prof Anbarci was indeed refusing to meet with the claimants, and was most reluctant to engage with them. He did not want to get involved with their concerns or have to deal with the problems that resulted. This was detrimental treatment but we conclude that his reasons were not related to the First Disclosure, nor to the Protected Disclosure made more recently on 19 May 2020. Prof Anbarci was frustrated and irritated by the claimants and all the issues they had raised. In a sense, that state of mind was related to the Protected Disclosure, but we do not find that it was because of the Protected Disclosure. The evidence points to the irritation deriving from a combination of the respondents’ sense of hierarchy, alongside the obvious pressures created by the pandemic, the urgent and serious impact on funding, and Prof Anbarci’s personal pressures (which the claimants were not aware of).[385]It does seem to the Tribunal that the respondents put a lot of effort into not helping the claimants. If Prof Anbarci had only talked to them in a short meeting, many of the communication issues could have been avoided. Aftab D4 / Scarpa D3 – Allegation of ‘university-wide scandal’[386]This joint allegation was about Prof Anbarci's email dated 22 May 2020 to numerous persons, alleging that the claimants were attempting to turn the issue of the Student’s PhD into a “university-wide scandal”. The fact of that email being sent to Prof Phillip and Prof Damjanovic was not in dispute.[387]We find that this was a hot-headed and spontaneous response to the fact that claimants had gone over Prof Anbarci's head in raising their concerns. We did consider why, if his concern about the chain of command not being followed was at the forefront of his mind, Prof Anbarci did not simply contact Prof Hart and Prof Houston to say he was sorry they were involved, but he was making good faith efforts to resolve the issues. Instead, he responded in anger with an inflammatory email to a person (Prof Damjanovic) who believed the claimants were bullies, abusing their power and should be disciplined. The language was inappropriate and divisive. It corroborates Dr Aftab's view that there was a culture of “we versus them”.[388]We gave careful consideration as to why Prof Anbarci felt the need to express himself in this way, especially to Prof Damjanovic when he was well aware of her antipathy towards the claimants. Even allowing for the significant other pressures facing him at the time, it was difficult to understand why he was taking out his frustrations on the claimants specifically. In his witness statement Prof Anbarci said: “It appeared that they were seeking to gain as much widespread attention as possible, at the highest levels of the University, with complete disregard for the prescribed reporting lines.” This was his reason for using the phrase ‘university wide scandal’. We reject that as an explanation for the reason the claimants sent the Second Disclosure letter. Prof Anbarci's language was not warranted, it was inflammatory and adversarial, and it was damaging to the claimants’ reputation.[389]We were satisfied that this was detrimental treatment of the claimants. However, after reviewing the evidence we determined that Prof Anbarci's reaction was linked to the Second Disclosure letter only in the fact that the claimants had sent it to Prof Houston and Prof Hart. It was that, rather than the information disclosed in the letter, which was in Prof Anbarci's mind when he reacted as he did. The content of the Protected Disclosure was not a material influence on this action. Aftab D5 / Scarpa D4 – Exclusion from correspondence[390]The claimants alleged that Prof Anbarci excluded them from department-wide correspondence on the issue of their intellectual property rights between 10 June 2020 and 5 July 2020. These dates postdated all of the four disclosures.[391]As we have found on the facts, the claimants were excluded from the series of emails Prof Anbarci initiated with numerous colleagues after the claimants contacted him asking for a meeting to discuss the enforcement of IP rights. This was difficult to understand, because Prof Anbarci himself was frank at the time about not knowing what IP rights were. He said he wanted to consult colleagues, but they had no better understanding of the issue, nor did they have any expertise to answer it. The most obvious step he could have taken to understand the claimants’ query was to talk to them. Instead, he involved many other colleagues to the exclusion of the claimants, none of whom was any better placed to understand the issue. The resulting confusion was hardly surprising given that the claimants had not been given an opportunity to clarify what they were asking. This was disrespectful to them and dismissive of their genuine concerns about protecting IP rights, which they had been assured by Ms Mantzoros would be followed up by a letter to the Student. No reason was provided to the claimants (or the Tribunal) for the lack of any such letter – despite a clear promise by Ms Mantzoros to send one – nor was any explanation given about any change in the legal advice.[392]It was clear to the Tribunal that by this time, Prof Anbarci was developing a certain animus towards the claimants. His email to Prof Damjanovic on 22 May about the claimants wanting to create a university-wide scandal suggests they were allies, despite Prof Anbarci's expression of frustration with her actions shortly afterwards.[393]In an email to Prof Anbarci on 18 May Prof Damjanovic had already accused the claimants of bullying the Student and abuse of power. She involved Prof Houston. On more than one occasion she made clear in emails to senior management that she disagreed with the joint judgment and its implementation. This objection continued through to 2 June, when Prof Damjanovic also involved Prof Hart. Only at this point did Prof Anbarci rebuke Prof Damjanovic for her “nonsense” and for “wasting everyone’s time”. However, that seems to have been the limit of his expression of frustration towards her, whereas his attitude towards the claimants never improved.[394]Having found that this animus was forming, we considered what reason Prof Anbarci had for excluding the claimants from this sequence of correspondence. He appeared to have some sympathy for Prof Damjanovic’s views of the claimants' relationship with the Student, but it is hard to see what this was based on. The claimants' letter to the Student was firm and robust, but the suggestion of bullying had not been investigated. The Student had not made a complaint, only taking up the offer to change supervisors. The claimants' concerns about the LTH not being following were accepted as valid, and were acted upon. The people responsible for the resulting delay to the Student’s viva were the authors of the joint judgment, not the claimants.[395]After reviewing these emails from June and July 2020, were were not persuaded that there was sufficient evidence to support a conclusion of detriment on the ground of making any protected disclosure. There was a small connection with the subject-matter of the First and Second Disclosures, to the extent that breaches of the LTH and possible IP infringements related to the Student’s thesis created the context for the email chain. However, nothing disclosed in the First Disclosure was protected under the Act. The one Protected Disclosure related only to the allegation of fraud, but nothing in the evidence points to that having any influence on the claimants being excluded from the correspondence.[396]This issue about IP rights overlapped with the problems relating to the Student’s thesis, and this prompted the email exchange in which the claimants were accused of telling a “blatant lie”. Aftab D6 / Scarpa D5 – Accusation of lying[397]This detriment was based on an allegation that Prof Anbarci emailed the claimants on 3 July 2020 wrongly accusing them of lying, threatening to take necessary action against them, and forwarding the email to 7 members of staff who were not part of the claimants’ line management.[398]Our findings of fact about the emails in question are set out in some detail above. The emails started with the claimants saying to Prof Anbarci on 1 July that they were disappointed he had discussed the IP issues with colleagues without first seeking clarification from them. The statement containing the alleged lie was that their query was “not related with the [Student’s] dissertation”, but was related to enforcing their joint intellectual property rights. For some reason Prof Anbarci had assumed it was about the Student, even though the events relating to his thesis had already been addressed by the time of the Board of Studies on 2 June, and the viva had followed on 29 June. It seems that the subject of the Student was a touchy subject even beyond these dates.[399]When Prof Anbarci replied to the claimants on 3 July, he escalated matters by copying in Prof Hart. After expressing his “shock” that the claimants thought he would not get serious counselling/advice on the IP topic, which he described as “sensitive” (and which he did not even understand), Prof Anbarci said: “I assure you that I will discuss the necessary action about your lie with the relevant people in the university soon.”[400]This was undoubtedly intended to be a threat of potential disciplinary action.[401]Prof Hart’s reply to Prof Anbarci was revealing of her own animus towards the claimants by this time. Her suspicion that the claimants would “try and take this further” demonstrated a degree of hostility and antagonism towards the claimants. She said they would “probably seek a retraction from you and an apology”. She allied herself strongly with Prof Anbarci and had no sympathy for the claimants' perspective. Prof Hart did not reprimand Prof Anbarci for making the accusation, nor did she even request that he apologise. The only action Prof Hart suggested was that he clarify that the claimants were were not in fact enquiring about the dissertation as such. The Tribunal saw no evidence that this was done.[402]In his witness statement Prof Anbarci said that English is not his first or even second language, as if to downplay the accusation, yet he insisted throughout that the claimants were misrepresenting the situation. When pressed during oral evidence about the lack of any apology, Prof Anbarci reluctantly told Prof Scarpa: “I can apologise for the lie part”. No apology was offered to Dr Aftab. Several times during Prof Anbarci's oral evidence he said he had retracted the allegation, but he had not. On the contrary, during cross-examination Prof Anbarci reinforced his position by saying the claimants’ words had been an act of “trickery, deception and maliciousness”. When asked by a member of the Tribunal to clarify this statement, which we found quite shocking, Prof Anbarci said he had formed that view during the hearing.[403]The Tribunal found that the handling of this issue in the grievance report was weak and did not treat the matter as serious from the claimants' perspective. Prof Przyborski failed to identify accurately the words used by the claimants (who had, possibly very pedantically) made a distinction between their query relating to the Student as opposed to his dissertation. The grievance paid no heed to the strength of the accusation, its reputational implications for the claimants and the absence of any apology.[404]Understandably, the claimants were both hurt and concerned about being accused in writing of lying, and this was exacerbated considerably by the fact that Prof Anbarci forwarded the accusation to numerous other colleagues.[405]We find that the accusation, its forwarding and the lack of steps by either Prof Anbarci or Prof Hart to put right the damage afterwards amounted to detrimental treatment. The question is whether the treatment was on the ground that the claimants had made a protected disclosure.[406]The evidence showed us that by this time Prof Anbarci was very annoyed with the claimants and we accept that he did believe they had lied. At the time, Prof Anbarci was under a great deal of personal and professional pressure, but a good manager who was not out of his depth would not have reacted to the claimants' email this way. He must have known that the accusation of lying was liable to cause damage to the claimants’ reputations. He did not pause to communicate with them, but he did have time to broadcast the issues more widely.[407]It is certainly correct that the claimants had been persistent in raising their issues, initially about the Student’s thesis and then about the protection of IP rights, but this was because the University had not resolved the issues. By July 2020 the thesis was dealt with, but the promised letter from the Head of Legal to assert the claimants' and the University's IP rights had not materialised. It is difficult to see why their enquiry about IP should be met with such a hostile reaction. It is fair criticism of the claimants that in their reply to Prof Anbarci they were being very precise and pedantic about the difference between the Student’s dissertation and the IP rights arising from the situation with the Student. They could have been more helpful in their clarification, but on any objective analysis they did not lie or deliberately seek to mislead. Even if that was not immediately clear to Prof Anbarci, had he engaged meaningfully with the claimants about their query, it would soon have been obvious what they meant. Yet he bypassed this step and went straight to the accusation of lying, broadcasting this more widely and maintaining his position at the internal grievance and even at this hearing. As their line manager, it was Prof Anbarci’s responsibility to communicate with the claimants about their request.[408]We were offered limited evidence about the respondents' mindset towards the claimants, though both Prof Anbarci and Prof Hart confirmed when asked by the Tribunal that they had not had problems in their relationship with the claimants prior to these events. They had in fact had very limited dealings with them. Neither of them gave a clear explanation for why this changed. Clearly the respondents were irritated by the claimants’ actions in late 2019, because they had taken their concerns about LTH compliance separately to Profs Houston and Hart without telling the other. Months then passed. The irritation was revived on Prof Anbarci's part in May 2020, when the claimants were pressing for action on the detail of the joint judgment. Allowing for some of that irritation being caused by the way the claimants were repeatedly raising their concerns, we saw no evidence of any particular hostility arising from the First Disclosure letter dated 4 November 2019. Indeed, the claimants' allegations of detriment only crystallised into concrete dates from May 2020 onwards.[409]Once the Second Disclosure letter was sent on 19 May 2020, the position was escalating, and the evidence shows that both Prof Anbarci and Prof Hart developed a barely-disguised animus towards the claimants in the period after receipt of this letter. This is seen in their emails to each other about the “universitywide scandal”, the accusation of lying, and the suspicion that the claimants would take things further. The claimants had become adversaries and the respondents were especially angry that others in the University were becoming aware of the issues.[410]We examined the evidence about when Prof Anbarci and Prof Hart had knowledge of the disclosure letters, to explore whether there was any causal connection with their treatment of the claimants around this time.[411]The Second Disclosure letter was sent directly to Prof Hart on 19 May. It was forwarded to Prof Anbarci on 22 May. His reaction was one of annoyance and exasperation. While there were some innocent explanations for this (as noted above), we do not accept that this explains the extent of the hostility.[412]Prof Anbarci's immediate reaction to the Second Disclosure letter was to be upset that the claimants had gone over his head: “I am extremely disappointed to see that our genuine attempts by me, Thomas, John (who served as the HoD for four years), and especially Dennis are not sufficient or satisfactory for you, and you still chose to appeal to Alan and Susan Given that our efforts are not achieving much, perhaps it will be better to leave it to Alan and Susan to sort things out and we instead save our efforts and energy for other things during these difficult times.”[413]Prof Anbarci also displayed his feelings in the emails he sent to Prof Phillip immediately on receipt of this letter, alleging that the claimants were trying to create a university-wide scandal. When repeating this statement in an email to Prof Damjanovic that day, he said [emphasis added]: “You should perhaps prepare something against their claims in case Alan and/or Susan interfere.”[414]Prof Anbarci's frustration with Prof Damjanovic was evident from their email exchanges, and clearly she had formed strong opinions not only about the claimants but also about the mistaken views of her senior managers. She did not agree with the joint judgment. While Prof Anbarci did not agree with her, nor initially with her assertion that the claimants were bullying the Student, by this time he was also frustrated and angry with the claimants. It is not difficult to understand the degree of pressure he was under from both work and personal circumstances, but what the Tribunal could not understand is why the claimants were treated as if they were wholly responsible. Prof Damjanovic by contrast was being treated as an ally. The claimants' concerns about the thesis had been accepted as valid, their responsibilities as continuing supervisors were acknowledged, the joint judgment was put in place, and yet they were being treated as the problem in a very personal way.[415]When the Third Disclosure was made on 5 June the respondents made no secret of their angry response to it. The letter to the IBA is what led to the disciplinary investigation being undertaken. But Prof Hart did not have any knowledge of that letter until 7 July, and nor did Prof Anbarci.[416]We conclude that by the time Prof Anbarci accused the claimants of lying on 3 July, the content of the Protected Disclosure had become a material influence on his treatment of the claimants. They were continuing to complain about the failure to fully implement the joint judgment. This related to matters which we have found were not protected disclosures because they related to breaches of the LTH. However, there was one significant difference between the First Disclosure made months previously, and the more recent Protected Disclosure, in that the latter introduced an allegation of academic fraud. Rather than be concerned about this potentially serious misconduct by the Student, the respondents took out their ire on the claimants.[417]We are therefore led to the conclusion that the Protected Disclosure had a material influence on the respondents' treatment of the claimants by the time of the accusation of lying and the linked detriments that followed. This state of mind persisted on an ongoing basis. There was no such adverse reaction to the First Disclosure, rising above mere irritation and impatience with the claimants, and neither Prof Anbarci nor Prof Hart had knowledge of the Third Disclosure until 7 July. Having examined this sequence of events in some detail, we find that there is no other explanation for the change in attitude. We take into account that the respondents made little effort to discharge their burden of proof on the reason for the treatment.[418]The accusation of lying, published as it was to numerous colleagues of the claimants, was a detriment, as was the threat of potential disciplinary action. This was done on the ground of the Protected Disclosure. Aftab D7 / Scarpa D6 – Denying the above email was forwarded[419]The claimants alleged that Prof Hart incorrectly stated in emails of 5 and 6 July 2020 that Prof Anbarci had not forwarded his email of 3 July 2020 to anyone. This is linked to the above detriment. It arises from Prof Scarpa asking Prof Hart on 5 July who had seen the accusation of lying. His request showed that he was concerned about the implications of this, and yet was reluctant to make a formal complaint. Without first checking the facts, Prof Hart replied initially to say Prof Anbarci's email was shared “amongst us only”. When asked to clarify, she wrote again to say she meant it was shared only with the claimants and her. It was only when pressed by Prof Scarpa that she checked the position with Prof Anbarci and discovered the email had been shared with others.[420]We found Prof Hart's evidence about this unsatisfactory. As a senior manager it is very surprising that she would be so quick to offer reassurances about something so serious without checking the facts. It was a foolish thing to so, and not in keeping with someone of her seniority. We would have expected her to check the position carefully before committing to writing, and also to offer an apology when finally confirming that the accusation had been shared. Instead, Prof Hart sought to avoid the issue and protect her colleague from any repercussions. The claimants were hearing rumours by this time, and it must have caused them great anxiety not to know who has seen the email casting serious aspersions on their characters.[421]We conclude that this was detrimental treatment and the reason for it was materially influenced by the Protected Disclosure in the letter of 19 May 2020. Our reasoning is as above in relation to detriments D6/D5. Scarpa D7 – No action about accusation of lying[422]This detriment is also linked to the above. The claimants allege that Prof Hart failed to take any appropriate action against Prof Anbarci in relation to the 3 July email once she was in possession of all the relevant facts.[423]There is no dispute that Prof Anbarci was not sanctioned or subjected to any action whatsoever for making his accusation of lying. Prof Hart's emails to Prof Anbarci on 6 July show the soft approach she was adopting. Prof Hart’s oral evidence on this point was ambiguous as to whether she did or did not ask Prof Anbarci to apologise, but what was clear is that she did not require him to do so. She simply said he might have to apologise at some point. No reprimand was given nor any other action taken, whether informal or formal. At best, Prof Anbarci was simply counselled about using inappropriate words. This was a missed opportunity to try and repair the issues, which instead escalated. This was detrimental to the claimants.[424]We adopt the same reasoning as above as to the causal connection between this failure to act and the Protected Disclosure. In doing so, we note that the day after her email to Prof Anbarci, on 7 July 2020, Prof Hart found out about the Third Disclosure and was furious that the claimants had written to the IBA. That letter was not a protected disclosure under the Act, but it has an evidential bearing on the matter. Our conclusion is that this reaction did not so much represent a change in position as reinforce the stance already adopted by Prof Hart. The Protected Disclosure (being the allegation of fraud by the Student) may not have been in the forefront of her mind by the time she became aware of the letter to the IBA, but we consider it was a material and more than trivial influence. The pre-existing strength of feeling generated by the Protected Disclosure strengthened as Prof Hart became more conscious of the claimants' concerns being aired to others. The disciplinary investigation which followed was about more than the claimants' use of letterhead; it was about reputation. Her later reply to the IBA showed that Prof Hart vehemently disagreed with the content of what the claimants were saying. This content was a follow up to the Protected Disclosure. Joint detriment D8 – Alleged bullying of the Student Joint detriment D9 – Failure to investigate alleged bullying[425]These detriments are linked and it is convenient to deal with them together. The claimants alleged that Prof Anbarci, in an email to Prof Hart on 6 July 2020, incorrectly accused the claimants of bullying the Student and attempting to stall his viva. Prof Hart then failed to investigate the allegations of bullying made by Prof Anbarci in his email of 6 July 2020.[426]The email in question formed part of the conversation following up the accusation of lying. Prof Anbarci told Prof Hart that the recipients of that email “got to know all of [the claimants’] bullying of [the Student] and their tactics to stall the viva, which are much worse than such a lie which was trying to split hairs”. In fact, the decision to delay the viva originated from the joint judgment and was endorsed by Prof Houston and Mr Appleton, as is evident from the latter’s email to Prof Damjanovic on 19 May when he expressed a preference to “keep things on track” with the examination arrangements.[427]The respondents treated the claimants as being responsible for what they later said was a breakdown in the relationship with the Student. Notwithstanding the criticism of the claimants’ handling of the Student, including allegations that they were bullying him, Prof Anbarci in his evidence to the Tribunal showed some support of the claimants’ concerns. Nevertheless, the contemporaneous evidence demonstrated that at the time of these events he had quickly joined forces with Prof Damjanovic, a vocal supporter of the Student, who made no secret of her hostility towards the claimants’ handling of the situation. The reasons for her hostility were never explained to the Tribunal. In fact, it was only by virtue of questions from the Tribunal that we learned that the Student did not pass his viva on the date scheduled, though he did later achieve his PhD with some allowances for health issues.[428]We saw no evidence to support the notion of the claimants bullying the Student, and found Prof Anbarci's evidence about this a little contradictory. He started out not agreeing with Prof Damjanovic’s intemperate criticisms of the claimants' supervision, and became exasperated by her interventions, and yet at some point he adopted her opinions and formed an adverse view of the claimants, allowing himself to be swayed by the suggestion of bullying. Prof Anbarci did not give us a satisfactory explanation for why he adopted that stance despite previously not agreeing with it.[429]In reality, the claimants' concerns about the Student’s work, and adherence to the LTH, had always been treated as legitimate, even if colleagues were becoming impatient with the manner in which these concerns were being raised. There was no evidence of their stalling the process, but rather they were pushing the issues forward with some urgency as they were conscious of time passing and the Board of Studies meeting taking place on 2 June. If there were any delays in the examination process, they were not caused by the claimants.[430]We were provided with no evidence to suggest that Prof Anbarci's allegation of bullying, intended as it was to encompass wider aspects of the claimants' supervision of the Student, was well-founded. His repetition of this allegation among colleagues underscored the claimants' fears that rumours were circulating about them, and reputational damage was being done. That was to their detriment.[431]It is not in dispute that Prof Hart took no steps to have the alleged bullying investigated. This was also detrimental to the claimants, who wished to clear their names. In the more limited context of the Third Disclosure, Prof Fawcett’s disciplinary investigation concluded that there was no evidence of harassment, though the letter to the IBA “could be” interpreted as bullying. The claimants later requested an investigation into the Student’s conduct, and the resulting report by Prof Ehteshami supported their position in principle, as to the Student’s conduct.[432]As for the reason why the claimants were treated this way, we find that the Protected Disclosure was a material influence on the minds of the respondents. At the time of exchanging their emails on 6 July, Prof Anbarci and Prof Hart were not yet aware of the Third Disclosure. We adopt again the conclusions set out under detriment Aftab D6/Scarpa D5 above, and consider that this mindset, once adopted, remained a feature of Prof Anbarci's and Prof Hart's approach to the claimants from that time on. We do not assume that it had a trivial or material influence on all of their actions, as this question depends on the evidence of the issue in question. Joint detriment D10 – Letter misrepresenting the issues[433]This alleged detriment arose from Prof Hart's email to Prof Houston on 7 July 2020 which the claimants said made inaccurate statements about their conduct and the Third Disclosure. The letter inaccurately stated that the Third Disclosure relied on the claimants’ belief in plagiarism, when it actually relied on their belief in plagiarism and also the Student’s representation that he had completed his PhD. They said the letter also incorrectly alleged that issues had been raised with the process of the viva and that due process had not been followed.[434]The email in question was sent by Prof Hart to Prof Houston on receipt of the reply from the IBA to the Third Disclosure. We find that the claimants are correct that the email gave the impression their concern was mainly about plagiarism. It made no mention of the Student’s claim to have been awarded his PhD, the main point of the disclosure to the IBA. Prof Hart’s concern was that by writing to the Student’s employer, the claimants had put the University's reputation at risk.[435]We do not consider this to amount to a detriment. Prof Houston was aware of the Third Disclosure letter. The incomplete summary of the issues in Prof Hart's email did not give rise to any consequences for the claimants. Even if we had upheld this as a detriment, we would not have concluded that the reason for the wording used was in any way influenced by the making of any protected disclosure. It was prompted by becoming aware of the Third Disclosure, and this was not a protected Joint detriment D11 – Reply to the IBA[436]This allegation is that Prof Hart wrote to the IBA on 8 July 2020 stating that the Third Disclosure was not supported by Prof Anbarci, the Student’s supervisory team nor the internal and external examiners. The claimants alleged that the letter was incorrect – the external and internal examiners and at least one of the supervisory team were unaware of the Third Disclosure.[437]The facts of the allegation are not in dispute. Prof Hart did make a statement that the claimants' views in the Third Disclosure were their personal ones and “not shared by the examination committee, nor the wider supervisory team, nor the Head of the Department of Economic and Finance”. We agree that this statement was incorrect, because Prof Hart had again made a statement in writing without first checking the facts. She may well have spoken for Prof Anbarci, but she did not contact the examiners (as Prof Scarpa later found out) for their views.[438]The essential fact set out in the claimants' letter to the IBA was that the Student’s profile on the IBA website was representing that he had completed his PhD at the University in 2019, which he had not. The claimants expressed their opinions that this amounted to a fraud in which the IBA was technically participating. Prof Hart was entitled to disagree with that categorisation of the issue, but she was not in fact speaking for all the people she claimed to speak for. Oddly, she did not seem to share the claimants' concern about the Student claiming to have been awarded his PhD. She was more concerned about the reputational impact on the University of the claimants drawing attention to the issue.[439]We find that this was a detriment to the claimants as it undermined their valid concern about the status of the PhD, even if Prof Hart felt their views about fraud were wrong, or that they should not have written on formal letterhead. There seems to be no reason why Prof Hart could not have adopted a middle line which protected both the University’s and the claimants' reputations. Her letter could have said the claimants had written in a personal capacity, but the information about the PhD was factually correct.[440]We conclude that this treatment went beyond what was necessary in terms of damage control, and that the Protected Disclosure was a material influence on Prof Hart's handling of this issue. Even if that was not the foremost concern in her mind, we find it inconceivable that this played no part, or only a trivial part in her motivation. It was a material influence, based on a mindset already formed. Aftab D12 / Scarpa D13 – Instigating disciplinary investigation Aftab D17 / Scarpa D19 – Letter of concern[441]These two detriments are linked by the disciplinary investigation, and each is worded in a specific way. The first allegation is that Prof Hart instigated a misconduct investigation against the claimants on 14 July 2020 in relation to the Third and Fourth Disclosures, alleging that they had brought the University into serious disrepute. The second is that Prof Hart sent the claimants a letter of concern on 21 July 2021 following the outcome of the disciplinary investigation, when such an action had not been recommended by the investigation.[442]It is not in dispute that Prof Hart initiated the investigation. Clearly that was a detriment to the claimants. However, we do not agree that the reason was because of any protected disclosure. It was explicitly a reaction to the Third Disclosure, but we have not found that to be protected under the Act. On this issue we are satisfied that the Protected Disclosure formed no meaningful part of the decision. Had that letter not been sent, these steps would still have been taken on the strength of the Third Disclosure alone.[443]As for the letter of concern, the claimants are incorrect to say that this was not recommended by the investigation. While Prof Fawcett did not recommend formal disciplinary action, he did recommended the lesser step of a letter of concern setting out the claimants' responsibilities and how to elevate concerns. It was not therefore a detriment for the letter to be issued in accordance with the recommendations. We were not required to go beyond the specific allegation by assessing whether the overall weight of the evidence and conclusions supported Prof Fawcett’s recommendation. Aftab D13 / Scarpa D14 – Failure to arrange meeting with Legal[444]The claimants alleged that Prof Hart used the misconduct investigation to prevent them enforcing their university-recognised intellectual property rights by (inter alia) failing to arrange a meeting with the University's Head of Legal.[445]This allegation can be dealt with briefly. The respondents’ actions show they were unwilling to help the claimants enforce the IP rights they tried to assert. The claimants had been promised by the Head of Legal that she would send a letter to the Student, and she advised them that this needed to be authorised by the Head of Department. When they tried to pursue this, their efforts were derailed by the hostile response from Prof Anbarci in particular. Neither he nor Prof Hart seemed the least bit concerned to protect the IP rights despite the University's interest in them. That said, we do not accept that the obstacles were connected to the misconduct investigation. There was simply no evidence that this was the case. The claimants were not subjected to a detriment for that reason, and they were not subjected to any detriment on the ground of the Protected Disclosure. Scarpa D12, D17 & D18 – Waikato University[446]These three detriments are conveniently dealt with together, due to the overlapping factual issues.[447]Prof Scarpa made three allegations. The first is that Prof Hart wrote to the Waikato Management School at Waikato University on 11 July 2020 seeking private and confidential information about Prof Scarpa’s secondary employment there. Prof Hart repeated this request on 8 October 2020, and having received the information that day, wrongly shared it with Prof Anbarci, who then in turn shared it with several other staff members.[448]The second allegation is that the University attempted to restrict Prof Scarpa’s ability to undertake secondary employment at the University of Waikato by indicating on 22 October 2020 that it had not given approval for him to work there whilst taking leave to look after his mother in New Zealand.[449]The third allegation is that Prof Anbarci divulged private and confidential information on 19 November 2020 regarding Prof Scarpa’s secondary employment at the University of Waikato.[450]We find that the factual basis for each of these allegations is made out by the evidence.[451]The first time Prof Hart contacted Prof Scrimgeour at Waikato was on 11 July 2020. Her request that he keep the enquiry confidential showed that Prof Hart knew she should not be asking for the information. She had not taken any steps beforehand to check the position regarding Prof Scarpa’s secondary employment with either HR or with Prof Scarpa himself. Those were the appropriate steps to take.[452]It is significant that the contact was made four days after learning about the Third Disclosure letter to the IBA.[453]When asked in oral evidence why she had not first spoken to Prof Scarpa, Prof Hart gave various explanations. She said it was “easier” to approach Prof Scrimgeour because she knew him. They were acquainted by virtue of attending an academic event some time previously. She wanted to “get her facts straight” before speaking to Prof Scarpa. She had heard some rumours, but the timing was coincidental. It was something that had been on her ‘to do’ list for some months. We found those explanations unconvincing. Prof Hart also said she did had not wanted to “confront” Prof Scarpa about the issue. Her use of that word was revealing, because it showed her interest was not benign.[454]When cross-examined by Prof Scarpa about whether she had ever attempted to talk to him about this, Prof Hart said it “fell off the radar”. But it did not: on 8 October 2020 the explanation she gave Prof Scrimgeour for getting back in touch was that it was the time of year for capacity planning. We find that the actual reason was something else. After being left dormant for three months, the matter was revived on the day after Prof Hart’s interview for the disciplinary investigation. She asked Prof Scrimgeour not only what Prof Scarpa’s current contract entailed, but also his previous contract.[455]It was no coincidence that Prof Hart made contact four days after the Third Disclosure and one day after the disciplinary investigation interview. the obvious inference is that that Prof Hart was seeking information with which to challenge Prof Scarpa, or evidence of wrongdoing, as she had leapt immediately to that assumption. This is especially evident when taken with the respondents' statements about his not having permission to work elsewhere, coupled with links made in the same emails about the need for a performance review. She told the Provost she was having “multiple issues with this individual”.[456]When asking Prof Harris for information in October, Prof Hart asked only about Prof Scarpa’s workload and did not seek clarification of what he had known about the Waikato employment and what had been agreed at the time of recruitment. Prof Hart’s concerns about Prof Scarpa’s secondary employment led to her undertaking an investigation of her own, rather than establish the facts in a straightforward way by going to HR first.[457]By the time Prof Hart did contact HR by email on 16 October, Prof Hart was not asking about Prof Scarpa’s contractual terms but only about whether it was possible to work in excess of a FTE contract across more than one institution. On 22 October HR advised not to seek or share information with Waikato. Prof Hart was still interpreting the position as Prof Scarpa not being allowed to work elsewhere. This was not helped by HR’s erroneous contribution saying that permission was needed.[458]That very day, Prof Anbarci submitted Prof Scarpa’s formal flexible working request, with a prohibition on working with Waikato. He too was wrong about the University's policies and misapplied them to Prof Scarpa. His pre-existing right to work at Waikato in the 10% time not allocated to the the University should have been honoured when agreeing the reduction in the 90% time commitment. There was no reason why Prof Scarpa could not have managed his own arrangements for looking after his mother while at the same time meeting his contractual obligations to both universities. Instead, the respondents were intent on gathering information adverse to Prof Scarpa in the furtherance of their negative beliefs formed after the Protected Disclosure.[459]It is also notable that by the time HR appreciated the position correctly in their email of 3 November 2020, immediately endorsed by the Provost, no steps were taken by Prof Hart or Prof Anbarci to rectify the position regarding the interplay between the flexible working request and the secondary employment. On the contrary, when Prof Scarpa made his case in a carefully detailed email on 21 January 2021, the respondents reaffirmed their stance.[460]The evidence in support of detriment D18 was more difficult to assess. In his witness statement Prof Scarpa said he was informed by various colleagues (who were not willing to be identified for fear of retaliation) that on around 19 November 2020, Prof Anbarci made disparaging remarks about his employment at Waikato being the source of an investigation. Prof Anbarci's original witness statement said nothing about this detriment, even though it featured in the List of Issues. In a supplementary statement he said he had little recollection of any conversation, but may have made Prof Julian Williams aware that Prof Scarpa had two paid positions, but he would not have referred to an investigation because none was underway.[461]Although Prof Scarpa’s evidence on this was not tested during the hearing, we accept his account as a reliable one. It is borne out by the fact that the issue was indeed under investigation, albeit not officially, and was being discussed in emails between senior managers in October and November 2020.[462]The respondents' actions were improper and unprofessional and in each of the three allegations we find there was detrimental treatment. We agree with Prof Scarpa that the enquiries made of Waikato involved a breach of confidentiality. The steps taken to try and restrict his secondary employment at Waikato were incorrectly and improperly conflated with his flexible working request. He was denied the chance for a review of the time commitment to Waikato because of the rules on flexible working requests being reviewed only annually. His secondary employment was a private matter between him and the the University and internal gossip and assumptions about his conduct were unnecessary and harmful.[463]As to the reason why the respondents took these actions, we were offered no convincing innocent explanation. The timeline reveals an agenda. It may be that Prof Hart's anger about the claimants writing to the IBA was a key factor in her mind, but that letter did not amount to a protected disclosure under the Act. In a case like this, containing many overlapping components, we cannot take an overly fragmented approach. Applying Fecitt, and repeating our above conclusions on detriment D6/D5, we find that the allegation of fraud in the Protected Disclosure was still a material influence on the minds of both Prof Hart and Prof Anbarci. Their animus was formed after the Protected Disclosure but before finding out about the Third Disclosure. Even if the specific prompt for contacting Waikato was that discovery on 7 July, we are satisfied that the respondents retained their preexisting attitude towards both claimants in the interim.[464]We take account of the lack of any legitimate explanation from the respondents for handling these matters as they did. If they had genuine reasons to want to clarify the position with Prof Scarpa’s contract terms, they had only to seek information and advice at the outset from HR. Indeed, the respondents could also have given him the courtesy of a conversation about it. Had they done so, the respondents would have learned that Prof Scarpa joined the University on the understanding that he had a 10% contract at Waikato, and needed only to disclose that fact (as he had done to Prof Harris at the time) because permission was not needed. The question of his flexible working request would then have been approached correctly, to accommodate the caring needs. Aftab D14 / Scarpa D16 – Obstructing the Bain investigation[465]The claimants alleged that Prof Hart obstructed Prof Bain’s investigation into their complaint, by her failure to provide information requested before her resignation on 31 March 2022.[466]We do not uphold this allegation on the facts, having been provided with little or no evidence about the circumstances, or the reasons for the delays in Prof Hart responding to requests for information. From the few emails we were referred to, it was apparent that Prof Bain’s office had to chase Prof Hart for some factual information about the problems between the claimants and the Student from late 2019. There was no other evidence to help us understand this allegation, as Prof Hart understandably had no recollection of any requests being outstanding when she retired.[467]The highest that Dr Aftab could put it in his witness statement was that the lack of response from Prof Hart “suggested” she was using her position to obstruct the investigation. We find no evidence of that. We have to question in any event how important or necessary her contribution would have been, in the context of an investigation into the issues of academic integrity. Prof Ehteshami was able to deliver her report regardless.[468]The facts are not therefore established and we find no evidence of detriment. Aftab D15 & D16 – Failure to promote in 2019/20 and 2020/2021[469]These two allegations are framed in identical terms in respect of the two separate promotion rounds. Dr Aftab alleged that Prof Anbarci and Prof Hart failed to promote him to Associate Professor in the promotion rounds in 2019/2020 and 2020/2021. He was informed of these decisions on 30 November 2020 and 10 August 2021 respectively.[470]Although Dr Aftab was very disappointed with the outcomes of his promotion applications, we were not prepared to treat the Tribunal hearing as a forum for opening up every aspect of the criteria applied by the University in making its selection and appointment decisions. Through cross-examination Dr Aftab made a number of challenges to the way the criteria were applied, for example as to whether his track record should be viewed only in respect of the period since the last promotion, or over a longer time. He tried to critique the detailed merits of his application, but it became apparent that his questions were not based on any particular grounds for suspicion that improper motives had played a part. Dr Aftab produced no evidence that undermined the collective nature of the decisionmaking, which was subject to the scrutiny of one or two formal committees comprising a large number of of very senior academics and managers. When challenged by the Tribunal to identify in his questions to Prof Anbarci some basis upon which it could be said the process was tainted by whistleblowing, Dr Aftab was unable to point to anything.[471]We conclude that the University conducted both promotion rounds in accordance with its formal procedures. There was no evidence of any improper interference by Prof Anbarci or Prof Hart or anyone else, and for us to conclude otherwise would be to assume that many other senior members of staff were receptive to such interference. The evidence shows that Dr Aftab was given positive feedback and encouragement to continue making progress towards the promotion which he did later achieve.[472]The respondents' handling of the two promotion rounds was not a detriment on the ground of making protected disclosures. Scarpa D15 – Email suggesting performance review[473]Prof Scarpa alleged that Prof Hart sent an email on 1 December 2020 to various recipients advising them to hold performance conversations with him arising out of the Third Disclosure. The Tribunal only saw a redacted version of this email[474]Prof Hart's email was prompted by learning that Prof Scarpa had contacted the external examiners, who had confirmed they were not asked for their opinion on the reply she sent to the IBA. Immediately on becoming aware of that, Prof Hart emailed Prof Anbarci (most likely), questioning Prof Scarpa’s actions. She was entitled to question how he had obtained her confidential letter to the IBA, but her email went beyond that by saying that an unnamed other person had had “more difficulties with Ric in respect of teaching allocations, so it would be appropriate to meet regarding [name redacted] suggestion regarding a performance conversation with him.”[475]This was the second reference to managing Prof Scarpa’s performance. A month earlier Prof Hart had exchanged emails with Prof Long, who said on 4 November [emphasis added]: “I suspect that for now, with this individual, some kind of performance review is the best way forward.”[476]Prof Anbarci’s follow up email on 9 November confirmed that Prof Scarpa’s reduced hours had been approved. He agreed that they needed to have a “comprehensive performance review” for Prof Scarpa, as soon as all the HR investigations about him were concluded.[477]The November emails were sent in the context of Prof Scarpa’s secondary working in Waikato and his flexible working request. There was no clear basis on which his performance might need to be the subject of a performance review, let alone a comprehensive one. As we have already found, the respondents were in error about Prof Scarpa’s entitlement to work in Waikato. They would not have laboured under those misunderstandings if they had made good faith attempts to establish the facts. Prof Long, the Provost of the University, appears to have been led into the view he expressed by Prof Hart’s portrayal of Prof Scarpa as acting improperly. This is clear evidence of reputational damage.[478]The respondents' approach might have been mitigated by any genuine concerns about the how Prof Scarpa’s time was being or would be apportioned between the two universities. They were entitled to ask him if he had plans to change the 90/10 balance. They were not, however, entitled to take their agenda forward on the basis of erroneous assumptions, including an assumption that Prof Scarpa was guilty of wrongdoing in respect of the secondary work at Waikato.[479]In any case, we fail to see why this would be treated as a performance management issue, in the absence of any explanation for doing that. Had the concern been a genuine one, relating only to time commitments, there is no reason why that should not have been dealt with as part of normal discussions between line management and academic staff about workload allocations.[480]In her witness statement Prof Hart said she was observing (not instructing) that it “may be appropriate to meet Prof Scarpa for a conversation around difficulties he appeared to be having in respect of his teaching allocations”. We were given no further information about these difficulties. Prof Hart denied that this was in retaliation for any complaint that Prof Scarpa had raised in his letters.[481]We find that by engaging in these emails Prof Hart was promoting her own desire to see Prof Scarpa sanctioned. She raised the issue of a performance conversation in November in relation to the secondary employment, and followed it up in December in the context of teaching allocations. Aside from the absence of a valid explanation for taking these steps, we also questioned why Prof Hart was even involved in such line management concerns. She repeatedly told us that her role was strategic (which of course it was), and yet repeatedly Prof Hart found the time and energy to be involved in issues such as Prof Scarpa’s workload allocation. We note that Prof Anbarci was fully embracing this course of action by suggesting a comprehensive performance review.[482]We are satisfied that this was detrimental treatment. The reputational impact went all the way to the top of the University's management. We find it extraordinary that someone as senior and experienced as Prof Scarpa would be subjected to a performance review over these matters. We find it inherently implausible that this is something which would regularly arise in the University in other cases. We conclude that the animus formed after the Protected Disclosure survived throughout the months which followed. The escalation of adverse treatment may well have been influenced by other factors like the Third and Fourth Disclosures, which were not protected, but the pre-existing animus did not fade away. It remained a material influence on the treatment of the claimants.[483]This interpretation of the respondents' acts is consistent with the fact that the content of the letters to the IBA and the HEC generated a great deal of anger on the part of Prof Hart and Prof Anbarci. That content overlapped with what we have found to be the Protected Disclosure. That anger did not manifest itself in any comparable way after the First Disclosure was made. Aftab D22 – Failure to investigate LTH breaches[484]Dr Aftab alleged that Prof Hart, as the Executive Dean, failed to initiate any independent investigation into, or take disciplinary action in respect of the University's staff’s failures to adhere to the LTH and in respect of Prof Anbarci's treatment of him.[485]This allegation was expressed in terms which were too broad to evaluate. It did not specify when Prof Hart should have taken such action, or against whom. Nothing in the evidence supported the idea that a failure to follow the LTH would or should be treated as a disciplinary matter. If anything, this would be apt for a lessons learned exercise, as suggested by Prof Przyborski in his report.[486]These complaints are not made out on the facts and we find no evidence of detriment in relation to this particular allegation. (5) The time point[487]We have found that the evidence supports the claimants' allegations of unlawful whistleblowing detriment under section 47B of the Act in ten cases. Having done so, we considered whether those complaints had been brought within the time limit under section 48(3) of the Act. This requires a claim to be brought before the end of the three month period beginning with the date of the detriment in question, or where the act or failure is part of a series of similar acts or failures, three months from the date of the last of them.[488]Time is calculated from the date when the act (or omission) took place, and not by reference to any ongoing consequences arising from that decision – Unilever v Hickinson. If a number of detriments are to be treated as part of a series, then there must be a relevant connection between them (Arthur v London Eastern Railway) and furthermore, each act in the series must be in itself unlawful (Oxfordshire CC v Meade).[489]Applying these rules to the present case, the findings of detriment in Dr Aftab's case, and the relevant dates, are as follows: Detriment D6 accusation of lying 3 July 2020 Detriment D7 forwarding the above email 5/6 July 2020 Detriment D8 allegation of bullying Student 6 July 2020 Detriment D9 not investigating the above around 6 July 2020 Detriment D11 reply to the IBA 8 July 2020[490]Even allowing for the fact that the omission in detriment D9 may have continued for a period of time after 6 July 2020, it could be said that the date when the action should have been taken fell within a matter of weeks afterwards. The latest date when Dr Aftab was treated detrimentally was therefore 8 July 2020 or at best August/September 2020 to allow for the omission.[491]Taking the last in the sequence of acts of detriment in Dr Aftab’s case, the primary 3 month time expired on 7 October 2020. In the case of the omission, time expired no later than 29 December 2020. Early conciliation began on 27 July 2021 and his claim form ET1 was presented to the Tribunal on 26 August 2021. His claims were therefore brought out of time.[492]In Prof Scarpa’s case the findings of detriment and relevant dates are: Detriment D5 accusation of lying 3 July 2020 Detriment D6 forwarding the above email 5/6 July 2020 Detriment D7 failure to discipline Prof Anbarci around 3 July 2020 Detriment D8 allegation of bullying Student 6 July 2020 Detriment D9 not investigating the above around 6 July 2020 Detriment D11 reply to the IBA 8 July 2020 Detriment D12 writing to Waikato 11 July & 8 October 2020 Detriment D17 restrictions on employment 22 October 2020 Detriment D18 writing to Waikato 19 November 2020 Detriment D15 performance conversations 1 December 2020[493]The omissions relating to detriments D7 and D9 similarly give rise to an expectation that the actions should have been taken in a period shortly after the dates in question, again by August/September 2020 at the latest. Otherwise, the latest date when Prof Scarpa was treated detrimentally was 1 December 2020.[494]In the case of the omissions in Prof Scarpa’s case, time expired no later than 29 December 2020. Putting his case at its best by relying on the last in the sequence of acts of detriment, the primary 3 month time expired on 28 February 2021. Early conciliation began on 27 July 2021 and his claim form ET1 was presented to the Tribunal on 26 August 2021. His claims were therefore brought out of time.[495]The only remaining question is whether it was not reasonably practicable for the claimants to have brought their claims in time. They submitted that it was not, mainly by reference to the “insidious and cumulative nature of the campaign of detriment”, which meant the full extent and gravity of the situation only became apparent over time. They relied on their engagement with lengthy internal processes dealing with the disciplinary and grievance issues, and invited us to accept that they did so in good faith. In Dr Aftab's case he referred to the significant impact of the detriments on his health and well-being, including stress, anxiety, and the flare-up of a chronic condition, which impaired his ability to focus on initiating litigation sooner.[496]It is clear from the authorities referred to above that merely following internal procedures such as a grievance is unlikely to be enough. An impediment preventing a claimant from bringing a claim to the Tribunal may be a state of mind. However, whether a claimant relies on ignorance of their rights, or confusion about how to enforce them, that state of mind must be a reasonable one to hold in all the circumstances – Walls Meat Company.[497]It is not just a case of assessing what the claimant actually knew at the relevant points in time, but also what he or she ought reasonably to have known – Porter v Bandridge and Dedman. The authorities make clear that a claimant has a responsibility to seek information or advice about how to enforce their rights.[498]Applying the factors in Walls Meat Co and the other authorities referred to above, we find that it was reasonably practicable for both claimants to have brought their claims in time. We do not doubt the great pressures they were under in 2020, whether in relation to their professional duties, the way they were being treated at work, or the impact of the pandemic. We recognise the effects on Dr Aftab's health of all these events. However, the claimants had ample opportunities to find out about their legal rights and how to enforce them. They had a responsibility to do so.[499]The claimants were not under any misapprehension about their rights and remedies. It took them some time to recognise their complaints as having potential implications under the law on whistleblowing. They had access to support from their union. There were no impediments preventing them from researching the position or taking legal advice at an earlier stage.[500]The claimants' grievances were not submitted until June 2021, and the letter of concern resulting from the Fawcett report was issued on 21 July 2021. However, there was a considerable distance of time between the events of July 2020 and October/November 2020, and contacting Acas to initiate early conciliation on 27 July 2021.[501]Taking into account all of the above, we do not accept the claimants' argument that it was not reasonably practicable to have brought their claims in time. (6) Final conclusions[502]There were aspects of the respondents’ case and its presentation which we found surprising, if not somewhat complacent. Firstly, notwithstanding the burden of proof provision, they chose not to present a positive case to explain the reasons why their relationship with the claimants deteriorated as much as it did in 2020.[503]The respondents mounted a vehement defence to the public interest requirement in a protected disclosure, but this was at odds with their own whistleblowing report which made clear that “matters relating to standards and quality of degrees awarded by the University would fall within the scope of a public interest disclosure”.[504]Going back to the origins of this dispute, it started with the claimants raising valid questions about the implementation of the LTH rules in a very difficult situation where their relationship with the Student had broken down. According to the LTH, they had a responsibility to make the Student aware in writing if they felt the thesis had serious shortcomings. Possibly they were overzealous in the manner in which they raised their concerns, but from the outset there seems to have been an assumption that they were the ones at fault, and not the Student. This continued right through the events of 2020, with the respondents showing no real concern about the Student claiming to have been awarded his PhD when he had not, nor showing any interest in protecting IP rights.[505]There are valid criticisms to be made about the manner in which the claimants raised their concerns, with the level of detail and repetition this involved. This was replicated in the conduct of these proceedings. However, it was striking to the Tribunal that the respondents made so much effort to avoid engaging with the claimants. They would not have needed to write the letter of 19 May 2020 if the joint judgment had been fully and promptly implemented in the first place. Their frustrations at being excluded from communications made things worse. These shortcomings were identified in the disciplinary and grievance investigation reports but were not acted upon.[506]The degree of the hostility towards the claimants was all the more inexplicable given the number of times their stance on the LTH was accepted as valid during various internal stages, starting with the joint judgment and extending through the investigation reports and the later addendum to the whistleblowing report. This concluded in January 2022 that the “concerns raised on 19 May 2020 were wellfounded”. The criticisms about the manner in which the claimants raised and pursued the issues seem quite out of proportion to the degree of hostility they experienced from May 2020 onwards.[507]We were also struck by the number of missed opportunities for the University to try and quash the problems from an early stage. For example, the claimants can be validly criticised for writing to the IBA without discussing the issue with management first, but the respondents' reaction only served to escalate matters. Had they not been so keen to take formal action, they could have taken advice from HR in accordance with the Disciplinary Policy, before invoking the formal steps, “to ensure this is the most appropriate route to take”. The Disciplinary Policy “does not preclude, in any way, the day-to-day counselling or guidance of staff by their immediate manager. This is encouraged as good management practice to achieve improvements which avoid the need for formal disciplinary action.” Instead, a formal disciplinary investigation ensued, which took a great deal of time and resource, and which found that there was no evidence of damage to reputation. The Fawcett report found that the claimants' actions in relation to the thesis submission were consistent with University policies.[508]There were many instances where lessons could have been learned by all parties. The Fawcett recommendations were only followed up in respect of the claimants. The recommendation that Prof Anbarci, Prof Hart and the Vice Provost Education should carry out a lessons learned exercise, focussing on how the claimants' communications were handled, and making changes to training or processes as required, was ignored. Prof Fawcett also gave the respondents a prompt for reflection when he said: “Had their concern been recognised and acted upon appropriately, by any of those contacted, the communications would likely not have been sent.[509]In his report Prof Przyborski mostly endorsed management actions. He did not find evidence of retaliatory behaviour towards the claimants for whistleblowing. Nevertheless, he identified some learning points relating to communication. He said the lack of a clear communication route was a cause of confusion for all parties. He acknowledged the claimants' feelings of frustration and stress, while also criticising their communication style and contacting multiple managers in rapid succession. He found that “behaviours have not been dealt with appropriately from all parties” and that this could be “reflected upon through a lessons learnt exercise” as outlined in Prof Fawcett’s report. He pointed out that recommendations from the Fawcett report had still not been implemented, and noted that Prof Anbarci was not even aware of them.[510]The respondents conceded to the Tribunal that they never took any steps to carry out a lessons learned exercise, but offered no explanation. This was consistent with the fact that they maintained throughout that there was no mishandling of the situation on their part. Prof Hart, in answer to a question from the Tribunal, did not think anything could have been done better or differently. We disagree.[511]If only the respondents had engaged constructively with the claimants at an early stage, and worked collaboratively with them to resolve their concerns, these issues might not have escalated. Much of the claimants' conduct arose from their frustration at not being taken seriously or from being ignored. It could also have made a difference if the respondents had kept an open mind about the validity of the claimants’ concerns about the Student, instead of assuming the Student was the injured party.[512]Whether or not the respondents believed the claimants had blown the whistle on wrongdoing, some of their behaviour was extraordinary. We were particularly struck by Prof Hart's approaches to Waikato University, Prof Anbarci publicly accusing the claimants of lying, and Prof Hart's failure to make clear to Prof Anbarci that he owed the claimants an apology for this. Overall, the Tribunal found much evidence of an animus towards the claimants, in some cases amounting to unlawful detrimental treatment. We have not upheld all of the alleged detriments, but this was often because there was no protected disclosure fitting the legal definition under the Employment Rights Act.[513]In all these circumstances, we found it difficult to understand why the University at no point considered arranging a workplace mediation. SE Langridge Employment Judge Langridge