M Hepburn v The Council of the City of Newcastle upon Tyne: 2502576/2023
EMPLOYMENT TRIBUNALS
Case No 2502576/2023
Between
M HepburnClaimantThe Council of the City of Newcastle upon TyneRespondent
Before
Employment Judge LoyIn person for claimantMr Haywood (instructed by counsel) for respondentDate 6 February 2026
JUDGMENT
The majority Judgment of the Employment Tribunal is that:[1]The claimant’s claim for failure to make adjustments contrary to sections 20 and 21 of the Equality Act 2010 is not well-founded and fails (Mr Moules dissenting).[2]The claimant’s claim for victimisation contrary to section 27 of the Equality Act 2010 is not well-founded and fails (Mr Sagar dissenting). The unanimous Judgment of the tribunal is that:[3]The claimant’s claims for detriment contrary to section 47B of the Employment Rights Act 1996 is not well-founded and fails. 10.5 Reserved judgment with reasons – rule 61 1 March 2017[4]The claimant’s claim for unfair dismissal contrary to section 103A of the Employment Rights Act 1996 is not well-founded and fails.
REASONS
[1]This is a claim by the claimant for unlawful treatment arising out of the expiry and non-continuation of her fixed term contract of employment which commenced on 1 September 2022 and expired on 31 August 2023. The claimant identified various detriments which she says were occasioned because she ‘blew the whistle’ and/or because she did a protected act in the form of raising a grievance which included a complaint that the respondent had failed to make reasonable adjustments for her by not allowing her to audio record meetings with management. There is also a free-standing complaint of a failure to make that adjustment. The respondent denied all claims. Applications[2]At a preliminary hearing before Acting Regional Employment Judge Jones held on 24 September 2025, the parties were given the opportunity to make any further applications they might want the tribunal to consider when providing their written submissions. Neither party made any such application. Transcription of final hearing[3]On the application of the claimant, the parties were provided with a transcription of all six days of the final hearing at public expense. The claims and issues[4]The following claims arise for the tribunal’s determination.[5]Did the respondent:(a) fail to make a reasonable adjustment contrary to sections 20 and 21 of the Equality Act 2010 (the EqA) because it failed to allow the claimant to tape record meetings with management (‘the reasonable adjustment claim’)? Was the claimant:(b) subjected to victimisation contrary to section 27 of the EqA on the grounds that the respondent failed to extend the claimant’s fixed-term contract because she raised a grievance on 27 June 2023 (‘the victimisation claim’)? 10.5 Reserved judgment with reasons – rule 61 2 March 2017(c) subjected to detriments contrary to section 47B of the Employment Rights Act 1996 (the ERA) on the grounds that she had made a protected disclosure (‘the whistleblowing detriments claim’)?(d) Was the claimant automatically unfairly dismissed contrary to section 103A of the ERA because the reason or principal reason for her dismissal was that she had made a protected disclosure (‘the automatic unfair dismissal claim’)? The agreed list of issues[6]At the final hearing, the parties produced an agreed, revised list of issues for the tribunal’s determination. The revised list of issues was largely based on a first draft prepared by the parties’ respective solicitors in advance of a case management hearing before Employment Judge Sweeney on 5 April 2024.[7]The agreed list of issues is set out below. The bold and italicised text indicates where a matter was conceded by one of the parties. THE AGREED LIST OF ISSUES Summary of the claimant’s claims 1. Failure to make reasonable adjustments pursuant to s20 and s21 Equality Act 2010 (EqA 2010). 2. Victimisation pursuant to s27 EqA 2010. 3. Automatic unfair dismissal pursuant to s103A Employment Rights Act 1996 (ERA 1996). 4. Right not to be subject to a detriment pursuant to section 43B ERA 1996. Disability s6 EqA 2010 5. Having regard to the claimant’s hypomania and anxiety, the respondent accepts that the claimant was disabled within the meaning of the EqA 1996. 6. The claimant concedes knowledge of the claimant’s disability from 4 May 2023. 10.5 Reserved judgment with reasons – rule 61 3 March 2017 Claim 1: Failure to make reasonable adjustment (ss 20 and 21 EqA 2010) Provision, criteria or practice (section 20(3) EqA 2010) 7. By requiring the claimant to attend meetings and/or requiring [her] to attend meetings without them being recorded, did the respondent apply a PCP to the claimant (and if so, when?). The respondent accepts that the policy of refusing permission to Staff to make audio recordings of meetings is a PCP.[8]Did the application of the PCP put the claimant, because of her alleged disability, to the following substantial disadvantage: The claimant was unable to participate, be productive and digest important information during meetings without an overwhelming sense of anxiety and being concerned whether the meeting was being accurately recorded, in consequence of her disabilities, which made it more likely that her health would be detrimentally impacted[9]When the PCP was applied to the claimant: 9.1. From on or around 4 May 2023, the respondent knew that the claimant was disabled because of anxiety and hypomania. 9.2. Did the respondent know or ought it to have known that the application of the PCP put the claimant to the above disadvantage[s]? 9.3. Did the application of the PCP put persons who did not share the claimant’s alleged disability to the above disadvantage(s)? 9.4. Could the respondent have avoided the above disadvantage by taking the following steps: (a)Allowing the claimant to make audio recordings of meetings; (b) Inviting a scribe to take down notes during meetings; and (c) Allowing the claimant additional breaks and/or time to take her own notes. 9.5. If so, was it reasonable for the respondent to have to take such steps to avoid the disadvantage? 10.5 Reserved judgment with reasons – rule 61 4 March 2017 It is accepted [by the claimant] that that the respondent took steps 9.4.2 and 9.4.3 but did not take step 9.4.1. In an earlier version of the list of issues [52(a)-(e)], which was prepared with the assistance of the claimant’s then solicitors, Messrs Thompsons, the claimant’s position on her reasonable adjustments claim was put in the following terms: It is the claimant’s position that points 9.4 (b) and (c) would not have removed the disadvantage The tribunal refer to this earlier version of the list of issues for reasons the reasons set out at paragraph 201 below 9.6. In the circumstances of this case, has the respondent failed to comply with its duty to make reasonable adjustments. Auxiliary aid section 20(5) (EqA 2010) 9.7. Was the respondent under a duty to provide a tape recorder as an auxiliary aid? It is the claimant’s position that but for the provision of a tape recorder as an auxiliary aid she was put at a substantial disadvantage compared with persons who did not share the claimant’s disability. 9.8. Did the failure to provide the claimant with an auxiliary aid put the claimant, because of her disability, to the following substantial disadvantage: The claimant was unable to participate, be productive and digest important information during meetings without an overwhelming sense of anxiety and being concerned whether the meeting was being accurately recorded, in consequence of her disabilities, which made it more likely that her health would be detrimentally impacted. 9.9. Did the respondent take reasonable steps to provide the claimant with an auxiliary aid, was it under an obligation to do so? 10.5 Reserved judgment with reasons – rule 61 5 March 2017 Claim 2: Victimisation (s27 EqA 2010) The respondent accepts that the raising of a grievance on 27 June 2023 was a protected act for the purposes of section 27(2) of the EqA 2010. 9.10. Was the claimant subjected to the following detriments by the respondent? The claimant’s contract not being renewed by the respondent? 9.11. If so, was this detriment because the claimant carried out the protected act identified above. Claim 3: Automatic Unfair Dismissal section 103A ERA 1996 9.12. Do all or any of the below amount to a protected disclosure? Disclosure 1: DBS checks and Phoenix Taxis 9.13. The claimant raising concerns about the lack of DBS checks and safeguarding checks on drivers and escorts by one transport provider? The claimant will say that she raised these concerns on 23 December 2022, 24 February 2023, 27 February 2023, and 20 July 2023. The respondent accepts that the that the disclosure on 23 December 2022 was a protected disclosure. Disclosure 2: M’s dismissal 9.14. The claimant raising concerns about the dismissal of an escort (M). The claimant will say that she raised these concerns on 24 February 2023, 10 May 2023, 1 June 2023, 5 June 2023, 6 June 2023 and 20 July 2023. Disclosure 3: Escorts’ Public Liability Insurance 9.15. The claimant raising concerns about the lack of public liability insurance for escorts. The claimant will say that she raised this disclosure on 20 July 2023. 9.16. What was the reason or principal reason for the claimant’s dismissal because she claimant had made one or more protected disclosure? 10.5 Reserved judgment with reasons – rule 61 6 March 2017 Claim 4: Right not to be subject to a detriment (s47B ERA 1996) 9.17. Do all or any of the matters at paragraphs 9.13 and 9.15 to above amount to a protected disclosure? The respondent accepts that the disclosure on 23 December 2022 was a protected disclosure. 9.18. Was the claimant subjected to all or any of the following detriments: 9.18.1. Being subject to constant extensions of her probationary period despite her contract stating ‘N/A’ in the probation section; and/or 9.18.2. Being unsuccessful in her appeal in relation to her dismissal. 9.19. If so, was any such detriment on the ground that the claimant had made one or more protected disclosures? Tribunal observations on the agreed list of issues.[10]The agreed revised list of issues does not identify which detriments the claimant contends resulted from the victimisation allegation or the whistleblowing detriment allegation. However, the particulars of claim clearly set this out as follows. 10.1. The detriment alleged to arise from the claimant’s victimisation claim is not extending the claimant’s fixed term contract. 10.2. The detriment alleged to result from Disclosure 1 and/or Disclosure 2 is being subjected to constant extensions to her probationary period despite her contract stating N/A under the probation section. 10.3. The detriment alleged to result from Disclosure 3 was that her appeal against dismissal was unsuccessful.[11]At the hearing (and in its written submissions) the respondent conceded that from 1 June 2023, when it received the first report from its Occupational Health Nurse, it had knowledge of the substantial disadvantage (as set out at paragraph 8 and 9.8 of the Agreed Revised List of Issues set out above) from which the claimant was likely to suffer when attending meetings with her managers. 10.5 Reserved judgment with reasons – rule 61 7 March 2017 Written submissions[12]Both parties produced detailed written submissions at the request of the tribunal. The parties were allowed sufficient time to consider the transcription in advance of submitting their written submissions.
Evidence
[13]The tribunal was provided with an agreed bundle of documents of 378 pages which included a small number of additional documents produced by the respondent at the request of the tribunal. References to the agreed bundle in these reasons are indicated in square brackets [ ].[14]The claimant gave evidence on her own behalf. The claimant produced a written witness statement of 92 paragraphs over 18 pages. The claimant was crossexamined by Mr Haywood.[15]The claimant also called Mr Michael Dobson, the claimant’s Unison representative at (among other meetings) a meeting on 21 June 2023. Mr Dobson produced a written witness statement of 5 paragraphs over 1 page. Mr Dobson was cross-examined by Mr Haywood.[16]The respondent called five witnesses: 16.1. Nicola Jones, SEND Transport Officer. Nicola Jones was the claimant’s line manager. She produced a written witness statement of 50 paragraphs over 6 pages. 16.2. Linda Steel, SEND Placement Planning and Transport Services Manager and the line manager of Nicola Jones. Linda Steel produced a written witness statement of 48 paragraphs over 6 pages. 16.3. Ann Banks, SEND Service Improvement Lead. Ann Banks produced a written witness statement of 28 paragraphs over 3 pages. 16.4. Gillian Forrester, Head of Newcastle City Learning. Gillian Forrester produced a written witness statement of 21 paragraphs over 3 pages. 16.5. Joanne Scott, Manager in SEND Sensory Services. Joanne Scott 10.5 Reserved judgment with reasons – rule 61 8 March 2017 produced a written witness statement of 16 paragraphs over 2 pages.[17]All the respondent’s witnesses were cross-examined by the claimant. The tribunal’s approach to the evidence[18]All the tribunal’s findings of fact were made on the balance of probability. All findings of fact were reached unanimously unless the contrary is indicated.[19]Before moving to the findings of fact, the tribunal sets out a few points of general approach, some of them commonplace in the tribunal’s work.[20]In this case, as in many others, evidence and submission touched on a wide range of issues. Where the tribunal makes no finding on a point about which it heard, or where the tribunal does make a finding, but not to the depth with which the point was discussed, that is not oversight or omission. It reflects the extent to which the point was truly of assistance to the tribunal. The same applies to the tribunal’s approach to the relevant law.[21]While that observation is made in many cases, it is particularly important in this one, where the claimant felt very strongly about many of the issues, and was inexperienced in the law and procedure of this tribunal.[22]The tribunal’s approach also included an understanding of proportionality. In the artificial setting of tribunal litigation, the focus is on how the individual claimant was managed. Proportionality also includes not analysing every interaction between the claimant and her managers. This judgment is already very lengthy, and it would have been significantly longer if a different approach had been taken. The tribunal has therefore made factual findings to a level of detail commensurate with the need to come to safe and secure conclusions on the issues in dispute.[23]During the cross-examination of each of the respondent’s witnesses, the claimant framed her questions in a way which put a great deal of factual material to the respondent’s witnesses which the claimant had not put in her own evidence. The tribunal was careful not to treat that material as part of the claimant’s evidence, not least because the respondent did not have the opportunity to challenge it. The tribunal’s assessment of the witnesses[24]It was a theme of the disputes in this case that the claimant often found it extremely difficult to accept the outcome of a matter she raised with the respondent about which she felt strongly, or which affected her in some way, if that outcome was not that which she wanted or expected. 10.5 Reserved judgment with reasons – rule 61 9 March 2017[25]Given the level of contentiousness surrounding many of the managerial judgments that were an important part of the claimant’s case, the tribunal has tried to make it clear when and why it preferred the evidence of one witness over another when making its own findings on the important matters in dispute. To that end, the tribunal sets out its view on the cogency of the evidence of the witnesses from whom it heard. The claimant’s evidence[26]The tribunal found the claimant to be a sincere witness in that she genuinely believed in what she said in her witness statement and in her replies under crossexamination. To that extent, the tribunal found the claimant to be a credible witness. However, the tribunal had considerable reservations about the reliability of the claimant's evidence. There were several reasons why this was so.[27]The tribunal found the claimant’s evidence on several factual matters to be simply implausible. A good (but not the only) example was the claimant’s evidence about Nicola Jones’ involvement in how the probationary period clause came to be removed from the claimant’s contract of employment [83].[28]Nicola Jones was the claimant’s direct manager both during the claimant’s period of engagement through an agency and during the claimant’s period of direct employment. At paragraph 8 of her witness statement, the claimant gives an account of how the probationary period clause came to be removed.[29]The claimant’s evidence in that paragraph of her statement is that, on an unspecified date in September 2022, she was in Nicola Jones’s presence when Nicola Jones told her that she (Nicola Jones) was in the process of amending the respondent’s standard contract of employment to remove the probationary period clause. The claimant goes on to say that Nicola Jones told her she was doing this because the claimant had by then been successfully working in the post for almost a year. This was a reference to the claimant’s period of engagement in SEND Transport as an agency worker which immediately preceded her direct employment. That was very specific evidence which included the claimant’s recollection of the reason that Nicola Jones allegedly gave to her to explain why she was removing the probationary period clause.[30]Nicola Jones’ evidence was that no such exchange took place and that it could not have taken place. Ms Jones explained that it was the responsibility of the respondent’s Employee Services team to produce all contracts of employment. It was therefore Employee Services who issued the claimant’s fixed term contract. Ms Jones was simply not involved in the drafting of the claimant’s (or indeed anyone’s) contract of employment. 10.5 Reserved judgment with reasons – rule 61 10 March 2017[31]Ms Jones also said that it was not practically possible for her to draft contracts of employment since she did not have access to the respondent’s pro forma documents. Ms Jones said that she received notification from the respondent’s software driven management systems that the claimant’s probationary period was up for review and that is what initiated the probationary review meetings in February/March 2023. In the tribunal’s experience, the process described by Ms Jones is commonplace in large organisations in both the public and private sectors.[32]The tribunal prefers the evidence of Nicola Jones. An important part of the reason why the tribunal prefers her evidence is that the claimant’s evidence in paragraph 8 of her witness statement is markedly inconsistent both with: 32.1. the position taken by the claimant at time these events unfolded in the workplace; and 32.2. the claimant’s own contemporaneous documentation.[33]From February 2023 there was a high profile dispute between the claimant and Nicola Jones about whether the claimant’s employment was subject to a probationary period. However, the claimant failed to mention at any meeting or in any email that it was Nicola Jones herself who had removed the probationary period clause when producing the claimant’s contract of employment; that Nicola Jones had done so in the claimant’s presence; or that Nicola Jones provided the claimant with a reason for doing so.[34]The claimant was assertive during her employment. She regularly raised her dissatisfaction with working practices with her managers and frequently challenged management decisions. The claimant also vigorously contested Ms Jones right to have probationary meetings with her and right to extend her probationary period. That challenge was made on the basis that her contract of employment expressly said that her probationary period was ‘not applicable’. The tribunal found it baffling why, if what the claimant now says in paragraph 8 of her witness statement is true, that the claimant would not have raised what she now says in paragraph 8 of her statement contemporaneously in support of her repeated contention that she was not properly subject to probation.[35]The claimant accepted in cross-examination that she had not mentioned any of the content of paragraph 8 of her witness statement at the time these events unfolded. Nor is the alleged exchange with Ms Jones mentioned in any of the contemporaneous documentation that was produced between September 2022 and August 2023, including documentation that the claimant produced herself.[36]The claimant’s explanation for this omission was that during the period between September 2022 and August 2023 she had forgotten that she had been in Ms 10.5 Reserved judgment with reasons – rule 61 11 March 2017 Jones’s presence when Miss Jones had created her contact of employment; forgotten that that Miss Jones had expressly told her she was removing the probationary period clause; and forgotten that Ms Jones had provided her with her reason for doing so.[37]In cross-examination the claimant said that it was only when she was talking things through with her then solicitors, “…that the conversation came back to me. I remember sitting, Nicola was over there, I think she was [d]oing it on a computer, but she said there must be a standard form for a manager to adapt a standard contract…But I remember Nicola saying we don’t need probation because you’ve already been in post for 11 months successfully….So you don’t need to be on probation.”[38]That discussion with her solicitors must have taken place in the late summer/autumn of 2023. However, there is also no mention of the claimant’s version of events in her detailed and professionally drafted particulars of claim which run to some 84 paragraphs. The first time it is mentioned is in the claimant’s witness statement which she signed on 12 August 2024.[39]The claimant produced her own note of a probationary meeting with Nicola Jones on 24 February 2023 [118]. At paragraph 7 of that note the claimant says that, “By my reckoning my probationary period would have ended on 1 December [2022].”[40]The claimant does not refer to the fact that she had been told by Nicola Jones only four months previously that she was not subject to probation at all.[41]In an email of 23 March 2023 [131], the claimant says, “Hiya. Here’s my contract. Section 15 probation period is not applicable. Please check with HR whether this current extension of my probation is valid. Maybe it needs to be renamed or something else.”[42]This is one month after the claimant’s first probationary meeting. Again, the claimant does not say that Nicola Jones must be aware she was not subject to probation because she had been personally responsible for the removal of the probation clause form her contract.[43]In the claimant’s notes of a meeting of 13 June 2023 [184], the claimant records 10.5 Reserved judgment with reasons – rule 61 12 March 2017 “Mick explained that there was an oversight on the probation…”[44]“Mick” is Mick Dobson, the claimant’s trade union representative who accompanied her at the meeting of 13 June 2023. At no stage did the claimant attempt to correct Mr Dobson by saying that it was not an oversight because it was Nicola Jones (who was also present at the meeting of 13 June 2023) who was responsible for the removal of the probation clause; or that Nicola Jones had provided the claimant with her reason for doing so.[45]The claimant’s overall position in her own evidence on this important point was that: 45.1. In September 2022 Nicola Jones told her to her face that she was removing the probationary clause from her contract of employment and gave her the reason why she was doing so. 45.2. Between February 2023 and August 2023, the claimant, despite being in a bitter dispute with Nicola Jones (including in her grievance of 27 June 2023 [211-215]) about the legitimacy of being treated as a under probation, entirely forgot about what had happened in September 2022. 45.3. In discussion with her solicitors at some point after her employment ended on 31 August 2023, but before November 2023 when her claim form was presented, she remembered what had happened in September 2022, but then failed to refer to it in any of the 84 paragraphs of her particulars of claim.[46]The tribunal does not accept the claimant’s explanation. Rather, the tribunal finds that the events of September 2022 as alleged by the claimant in paragraph 8 of her witness statement simply did not happen. The tribunal do not have to find that the claimant has invented these events for the purposes of fortifying her position in these proceedings. However, the tribunal has concluded that the claimant’s evidence on this point is wholly unreliable and that this also raises significant concerns about the reliability of the claimant’s evidence more widely.[47]A further reason that the tribunal questions the reliability of the claimant’s evidence is her refusal to make any concessions even in the face of overwhelming evidence that her position on a particular point was untenable. This reflected the dogmatic way in which the claimant perceived many of the pivotal events in this case and her frequent intransigence in the workplace.[48]A good (but not the only) example is the claimant’s response when crossexamined about the problems with her evidence in paragraph 8 of her witness statement. It was put to the claimant that, 10.5 Reserved judgment with reasons – rule 61 13 March 2017 Q: “…it [is] possible that …your more recent memory is less reliable than your recollection at the time? A: “No”[49]Even allowing for the natural inclination for a witness to be defensive under crossexamination, that was not a realistic position for the claimant to take. The tribunal found that this lack of realism reflected a more general lack of objectivity in the claimant’s perception of events.[50]A further reason that led the tribunal to have concerns about the reliability of the claimant’s evidence was her inability to see matters from any point of view other than her own. A good (but not the only) example is how she reacted to the way in which respondent’s management dealt with the concerns she raised about Phoenix taxis.[51]On 23 December 2022, the claimant raised concerns about DBS checks and safeguarding training that had not been undertaken by Phoenix. In the claimant’s view, Phoenix should have been removed immediately from the respondent’s approved list of drivers because of the concerns she had raised.[52]On 6 January 2023, Nicola Jones told the claimant (and other team members) that Phoenix had been issued with a formal warning with a requirement that they respond by 3pm that day. Phoenix had effectively been told that they had to get their house in order in terms of regulatory and contractual compliance otherwise more stringent action would need to be taken. That approach was taken after discussion with those of the respondent’s managers who were responsible for the contractual framework agreement under which Phoenix operated.[53]On 27 February 2023, the claimant again raised safeguarding concerns with Miss Jones. Miss Jones again reassured the claimant that appropriate action had been taken. The data protection team and the Local Government Designated Officer had been consulted, and both were content that the respondent’s management action had been appropriate. Ms Jones encouraged the claimant to accept that appropriate management action had been taken even if the claimant disagreed with it.[54]Despite this, the claimant continued to reiterate her original concerns, restating her disclosure (originally made on 23 December 2022) on 24 and 27 February 2023 and on 20 July 2023. The claimant accepted in evidence that Phoenix had improved, not least because they had recruited a respected compliance professional from the respondent’s own workforce to help them. Nevertheless, the claimant continued to dispute that the respondent had acted appropriately 10.5 Reserved judgment with reasons – rule 61 14 March 2017 and remained insistent that Phoenix should either have been removed as a provider back in December 2022 or prevented from bidding for future work.[55]As a result, the claimant became more concerned with her disagreement with the respondent’s management than about the fact that, as she came to accept, Phoenix had sorted out their problems. This did not reflect well on the reliability of the claimant’s evidence. The claimant was incapable of seeing matters other than from her own point of view. She was focused on her own opinion of management action to the exclusion of all other points of view, including those of her managers. This explained her intransigence and her inability to move forward even when it was plainly in her own best interests to do so.[56]The claimant also demonstrated during her evidence an inability to get matters that concerned her into perspective. This resulted in her making several allegations of very serious wrongdoing for which there was no factual foundation.[57]For example, the claimant insisted that Phoenix taxis had committed fraud when charging the respondent over £300 for certain SEND transport journeys. The actual position was that the respondent found itself in an unfortunate contractual position with its suppliers that enabled Phoenix to demand very high prices for its services. The respondent had a ‘closed’ contractual framework with a limited number of taxi companies. This meant that the respondent was contractually prevented from going outside the list of nominated taxi firms to arrange transport in discharge of its statutory duty to provide SEND transport. This had the unintended consequence of creating a quasi-monopoly when the number of available firms decreased through unanticipated events such as firms poaching staff from other nominated providers.[58]The claimant insisted that the high prices commanded by Phoenix amounted to fraud. This was plainly incorrect. Phoenix was not acting in any way surreptitiously: they were simply taking commercial advantage of the vulnerable commercial situation that the respondent found itself in by charging very high prices. It was plain that the respondent freely agreed to the prices demanded by Phoenix, even if they were unhappy at having to do so. That does not even begin to disclose a basis for an allegation of fraud. It was, of course, a situation the respondent was keen to resolve. It did so by moving to an ‘open’ contract with a much wider range of transport providers when the existing 3 year framework agreement expired on 31 August 2023. The respondent’s witnesses[59]In contrast, the tribunal found each of the respondent’s witnesses to be open and straightforward. Their evidence was clear, consistent and cogent. Accordingly, the tribunal found all the respondent’s witnesses both credible and reliable. 10.5 Reserved judgment with reasons – rule 61 15 March 2017[60]The respondent’s witnesses were prepared to accept criticism and fault where it was appropriate to do so. For example, Ann Banks when considering the claimant’s grievance readily accepted that improvements could be made in the respondent’s practice of notetaking and communication style. Nicola Jones was prepared to apologise to the claimant for any anxiety she may have caused by the confusion that had arisen because the claimant’s contract of employment (which expressly removed the probation period clause) was inconsistent with the respondent’s management systems (which indicated to Ms Jones that the claimant was subject to a probationary period).[61]Ms Steel was subjected to over 10 hours of cross-examination much of which had little connection to the case set out in the claimant’s particulars of claim. Linda Steel and Ann Banks remained dignified in the face of baseless allegations from the claimant of impropriety such as allegations of dishonesty and giving untruthful evidence.[62]Ms Forrester was an impressive witness. She demonstrated a clear understanding of the matters she needed to consider when determining the claimant’s appeal against dismissal. She undertook her own enquiries into the resourcing of the SEND Transport team to satisfy herself that the reason the claimant was not offered an extension to her fixed term contract was for objective operational reasons.[63]The claimant made little, if any, progress when challenging the respondent’s witnesses in cross-examination. Even allowing for the fact that the claimant was a litigant in person, her cross-examination was lengthy, unfocused and repetitive. The claimant is conspicuously intelligent and well-organised. However, she conducted her cross-examination largely without regard to her pleaded case. The claimant was more concerned to challenge the managerial judgment, effectiveness and integrity of the respondent’s witnesses rather than to pursue her allegations of victimisation and ‘whistleblowing’ detriment/dismissal.[64]The low point of the claimant’s case was when she developed a conspiracy theory when cross-examining the respondent’s witnesses. That conspiracy theory was not in her particulars of claim and nor was it in her witness statement. The claimant suggested that there had been collusion among several of the respondent’s managers to remove her from the workplace. This would have required the tribunal to have accepted that several of the respondent's managers set aside their professional responsibilities to a vulnerable section of the community and prioritised their (unevidenced) wish to see claimant removed from her employment. The tribunal had no hesitation in rejecting that claim as fanciful. It had not the slightest evidential foundation. 10.5 Reserved judgment with reasons – rule 61 16 March 2017[65]As a result of its assessment of the witnesses, wherever there was a conflict of evidence the tribunal preferred the evidence of the respondent’s witnesses. Findings of fact Transport Support services and the roles of the respondent’s witnesses
Findings of fact
[66]The respondent is a local authority responsible for public services in the city of Newcastle upon Tyne. Special Educational Needs and/or Disabilities (SEND) is one of those services. SEND services are part of the respondent’s Schools Learning and Childcare Services which fall within the respondent’s Children and Families Directorate.[67]An aspect of SEND services is Travel Support. Travel Support discharges the respondent’s statutory duty to provide Home to School Travel services for eligible pupils.[68]The claimant was a Transport Assistant within the respondent’s SEND Travel Support team. Between 22 September 2021 and 31 August 2022, the claimant was engaged by the respondent through an agency. Between 1 September 2022 and 31 August 2023, the claimant was directly employed by the respondent on a fixed term contract. Throughout both periods the claimant’s direct line manager was Nicola Jones, SEND Transport Officer.[69]Linda Steel was the manager of Nicola Jones. Mrs Steel was the SEND Placement Planning and Transport Services Manager with responsibility for the strategic direction of the Travel Support team.[70]Ann Banks was the SEND Improvement Lead, a parallel service in the SEND services department. Ann Banks was asked to investigate the claimant’s grievance of 27 June 2023 which the claimant brought against Nicola Jones and Linda Steel. Ann Banks was also the note keeper at a management meeting attended by the claimant and her trade union representative on 21 June 2023.[71]Joanne Scott was a manager in the SEND Sensory Service, a separate service to SEND Transport Support. Ms Scott is an Authorised Manager with delegated authority to conduct dismissal meetings with employees of the respondent. On 20 July 2023, Ms Scott held a dismissal meeting with the claimant in that capacity.[72]Mr Sagar, in the minority on this factual finding, considered that the involvement of Joanne Scott was unexplained by the respondent (see paragraph 197.3 below). The majority noted that this was simply not the case. In Joanne Scott’s witness statement, she explains in clear terms her involvement as follows: 10.5 Reserved judgment with reasons – rule 61 17 March 2017 ‘…I met the claimant as although the Caimant did not work in my service. I am an Authorised Manager who has been delegated authority to dismiss therefore I was asked to meet with the claimant to terminate her contract.’[73]It follows that in the view of the majority, Joannne’s Scott’s involvement was explained for clear and cogent reasons.[74]Gillian Forrester was the Head of Newcastle City Learning. Gillian Forrester is an Authorised Manager with delegated authority to hear appeals against dismissal. On 2 August 2023, she heard the claimant’s appeal against dismissal in that capacity. Respondent’s concessions on knowledge of disability and knowledge of substantial disadvantage[75]The respondent accepted that the claimant was a disabled person within the meaning of section 6 EqA because of anxiety and hypomania.[76]The respondent accepted that it had knowledge: 76.1. of the claimant’s disability from 4 May 2023; and 76.2. of the claimant’s likely substantial disadvantage from 1 June 2023.[77]The claimant accepted that the respondent had knowledge of neither her disability nor any substantial disadvantage any earlier than those dates. Respondent’s concession of a protected act in the victimisation claim[78]The respondent conceded that the claimant did a protected act within the meaning of section 27(1)(a) EqA.[79]That protected act was the third allegation in the claimant’s grievance of 27 June 2023 by which the claimant alleged a failure to make a reasonable adjustment because of the respondent’s refusal to allow the claimant to audio record meetings with management. The terms on which the claimant was directly employed[80]There were factual disputes about the basis on which the claimant became directly employed. 10.5 Reserved judgment with reasons – rule 61 18 March 2017[81]The first (chronologically) of those disputes the tribunal needs to determine is what the parties agreed (if anything) about whether the claimant would continue to be employed after the termination of her fixed term contract.[82]The contract of employment is evidenced in the Statement of Main Terms and Conditions at [79-85]. It is plainly a contract for a fixed term duration of one year. It starts on 1 September 2022 and terminates on 31 August 2023. This contract runs on head to tail from the end of the period when the claimant was engaged through an agency.[83]The claimant felt very strongly that there was an understanding from the outset that her employment would continue as permanent employment after its expiry 31 August 2023.[84]Ms Jones’ evidence, which the tribunal accepts, was that there was no such understanding on the respondent’s part. The respondent’s consistent position, as reflected in the contemporaneous documentation was that there was to be a management review of how transport services should be provided and that any decisions about permanent employment could only be made once that review had been completed.[85]The tribunal preferred the respondent’s evidence for several reasons. The contract was for a fixed term of one year. That was entirely consistent with the respondent’s position. A temporary period of employment reflected the respondent’s contingent needs at the time the claimant was employed. The respondent was continuing to use agency staff in the department up to and beyond the end of the claimant’s contract. This was again consistent with its uncertain operational requirements pending the review. Put differently, if there had been any degree of certainty, the claimant would presumably have been appointed on a permanent rather than a temporary basis.[86]The uncontested evidence of the respondent’s witnesses was that the review was not completed until early 2024, several months after the end of claimant’s employment. Nicola Jones openly accepted that it was hoped that the review might be completed sooner rather than later and hopefully in time for a permanent Transport Assistant role to be created and for the claimant to be able to apply for it on or before the expiry of her temporary contract. Unfortunately, that did not prove to be the case.[87]The claimant had an urgent need to obtain permanent employment for financial reasons relating to her housing situation. The tribunal finds that this caused her to become selective in what she chose to hear about her prospects of permanent employment. The claimant ultimately conceded in cross examination that she was not promised at any stage that her employment would continue beyond 31 August 2023. 10.5 Reserved judgment with reasons – rule 61 19 March 2017[88]The claimant referred frequently to the following sentence in her contract which sets out the purpose the claimant’s contract: To temporarily cover a vacancy until a permanent postholder is appointed.[89]This is an unfortunate sentence. In the light of the claimant’s understandable need for permanent employment and her hope that the service review would lead to a permanent vacancy, it was perhaps inevitable that this sentence would raise her expectations.[90]However, the tribunal finds that this was the use of standard wording by Employee Services who drafted the contract since it was the best fit among the reasons it had for offering fixed term contracts. The sentence did not have the effect of creating any promise to extend the claimant’s employment after 31 August 2023.[91]The final matter of contention about the terms of the contract related to the removal of the probation period clause [83] The tribunal has already set out its findings of fact on this point at paragraphs [27-46] above and repeats them here. It was not Nicola Jones who removed the clause, it was Employee Services. The tribunal finds that Nicola Jones acted in good faith when arranging probationary meetings with the claimant because she genuinely believed that a probation period was in the claimant’s contract as it normally would be when an employee becomes directly employed by the respondent for the first time.[92]The most important finding of all is that Nicola Jones had genuine concerns about the claimant’s performance which justified having formal meetings with the claimant. It was the label of probation being given to these meetings that caused confusion, rather than whether the concerns were being legitimately raised. As the claimant says in her own email to Nicola Jones of 23 March 2023 [131]: ‘Hiya Here’s my contract Section 15 Probationary Period - Not Applicable Please check with HR whether this current extension of my probationary is valid, maybe it needs to be renamed something else?!’ Factual findings on the sequence of events[93]On 23 December 2022, the claimant sent an email to Phoenix taxis (copied to Nicola Jones) setting out her concerns regarding DBS checks and safeguarding 10.5 Reserved judgment with reasons – rule 61 20 March 2017 training in relation to two drivers and an escort who had, unbeknown to the respondent, been providing SEND transport services.[94]The content of that email is not in dispute and is set out at paragraph 260 below. This is relied upon by the claimant as Disclosure 1 (‘the Phoenix Disclosure’).[95]On 24 February 2023, Nicola Jones held a probationary assessment meeting with the claimant at which certain performance concerns were raised.[96]The principal points of concern were set out in a Probationary Period Assessment form of 24 February 2023 [112-115]. These were: 96.1. Difficulty in understanding the procedures and expectations. 96.2. Inability to manage workload within the allocated time with core tasks left uncompleted. 96.3. Working outside of core hours and incurring excessive flexi time as a result. 96.4. Difficulty in accepting decisions made by senior staff resulting in ‘…repeated discussions where she raises the same issues time and again this is time consuming not only for her but also line management’.[97]It is self-evident that these were legitimate issues to raise with the claimant. There was also an abundance of evidence to support Nicola Jones’ decision to do so.[98]On or around 13 February 2023, Linda Steel had spoken to the claimant at the request of the Director of Child Education Services (Cath McEvoy-Carr) after the claimant had directly emailed Counsellor Hay on the evening of Sunday 12 February 2023. Counsellor Hay had received an anonymous email (copied to many people including the claimant) raising concerns about a matter relating to SEND Transport Services.[99]By emailing Counsellor Hay on a Sunday evening, the claimant was illustrating many of the concerns the respondent had about the claimant’s performance. It showed the claimant was working outside her core hours. It also showed a lack of understanding of the expectations and parameters of her role. The claimant also asks Counsellor Hay a series of questions to clarify his response to the anonymous letter. The tribunal easily understood why it would be unmanageable for all but the most senior of its employees to be contacting counsellors either at all or on a Sunday evening. 10.5 Reserved judgment with reasons – rule 61 21 March 2017[100]There was also clear evidence that the claimant did have difficulty in accepting the decisions of senior staff and did keep on repeatedly raising the same matters with them in an effort to impose her own preferred outcome on her line managers. The cases of Phoenix Taxis and Escort M are the most obvious examples. It was also the claimant’s own case that she had too much work to do within the allotted time, albeit her position was that this was because she was having to do the work of a colleague on sickness absence.[101]The tribunal found that all the performance concerns that Nicola Jones raised with the claimant on 24 February 2023 were legitimate and evidence based. All those concerns were raised for objective operational reasons. All those concerns were dealt with proportionately.[102]At paragraph 197.2 below, Mr Sagar in his minority judgment on the victimisation claim concluded that the claimant had not been told why her performance was being questioned. For the reasons set out at paragraphs 95-101 above, the majority disagreed with that conclusion as a clear matter of fact. Further, the majority found that the respondent had clearly explained why it asked the claimant to attend the meeting of 13 June 2023 (see the findings at paragraph 120 to 122 below) and the meeting of 21 June 2023 (see the findings at paragraph 123 below).[103]In a document attached to an email of 27 February 2023 [117-118], the claimant provides her response to the performance concerns that had been raised with her. The claimant was told that her probationary period would be extended from 1 March 2023 until 1 April 2023. On 28 February 2023, the probation meeting of 24 February 2023 was resumed [126-129]. That meeting confirmed the extension of the claimant’s probationary period.[104]In the same document, the claimant: 104.1. reiterated the Phoenix Disclosure; and 104.2. made Disclosure 2 (“the Escort M Disclosure”) for the first time. The terms of Disclosure 2 are at paragraph 274 below.[105]On 23 March 2023, the claimant sent an email to Nicola Jones enclosing a copy of her contract of employment and drawing to Miss Jones’ attention that the probationary period clause had been removed [131].[106]On 25 April 2023, Nicola Jones had a workload meeting with the claimant [134- 136]. At that meeting, the claimant asked about the ‘likelihood’ of a third (i.e. an additional) permanent SEND Transport Assistant job becoming available. Nicola Jones replied, ‘[that she] does not know yet about protecting staff and protecting service’. 10.5 Reserved judgment with reasons – rule 61 22 March 2017[107]On 4 May 2023, a further workload meeting was scheduled to take place. At that meeting, the claimant requested to be allowed to audio record the meeting as a disability ais and coping mechanism for her anxiety. The claimant used her phone to record her request. Nicola Jones adjourned the meeting to take advice from HR. The claimant’s note of that meeting is at [139].[108]Also on 4 May 2023, Nicola Jones received HR advice that the respondent did not permit audio recording of meetings. Nicola Jones passed on HR’s position on audio recording meetings to Occupational Health (‘OH’) when making an OH referral for the claimant the same day. In an email on the same day [143-144], Nicola Jones then informed the claimant that she had taken advice from HR, and that the effect of that advice was that she would not be permitted to record meetings with management.[109]In an email of 10 May 2023, the claimant reiterated the Escort M Disclosure.[110]On 10 May 2023, the claimant provided additional information by email to Corporate Services (HR) copied to Nicola Jones. The email contained more details of her health conditions and their effect on her [142-143]. In that email, the claimant included a report of a decision of the Leicester County Court [64-74] which upheld her complaint that she ought to have been allowed to audio record meetings with the Leicester City Council’s housing department, together with a summary of other occasions when she had asked to be allowed to audio record in the workplace.[111]On 1 June 2023, Linda Steel met with the claimant to discuss the claimant’s apparent refusal to work with Phoenix taxis, the external provider of transport services about which she had made the Phoenix Disclosure. The claimant had been asked by Nicola Jones to act as reserve Transfer Assistant for the relationship with Phoenix. The claimant did not want to work with Phoenix given what she had previously discovered about their DBS checks and safeguarding training failures.[112]Linda Steel’s note of that meeting is at [150]. The note records the explanation the claimant gave for refusing to work with Phoenix in the following terms: ‘I asked Michelle to explain her concerns about Phoenix Taxis: On 22 December she uncovered the fact that they had 3 drivers and 1 escort we were not aware of. She put this in a report to Nicola. In January Nicola advised MH that a formal warning had been issued to Phoenix, MH assumed that this was because of the formal report she had put to Nicola. 10.5 Reserved judgment with reasons – rule 61 23 March 2017 MH has not had to have any dealings with Phoenix since then until this week when she was asked to work as reserve TA dealing with Phoenix.’[113]At the meeting of 1 June 2023, the claimant agreed to work with Phoenix in future. The management concerns were resolved on that basis.[114]In an email of 1 June 2023, the claimant reiterated the Escort M Disclosure by forwarding to Linda Steel the list of concerns previously provided to Nicola Jones on 27 February 2023 [117-118].[115]On 5 and 6 June 2023, the claimant reiterated the Escort M Disclosure, this time to Linda Steel.[116]The tribunal asked the claimant why she thought Nicola Jones would put her closer to Phoenix if Nicola Jones has been displeased about the disclosure the claimant made to her about Phoenix in December 2022. The claimant said that this was an attempt by the respondent to get her to leave. The tribunal rejected that explanation.[117]The tribunal found that the Nicola Jones asked the claimant to become reserve Transport Assistant solely for operational reasons. The tribunal also considered it to be wholly unlikely that, had Nicola Jones’ feathers been ruffled by the claimant’s disclosure, that she would want the claimant anywhere near the Phoenix relationship. The reality was that Nicola Jones had been pleased to receive the Phoenix disclosure information from the claimant; she had dealt with the information professionally; she had fed back the fact that a warning had been issued to the claimant; and she had considered the matter closed.[118]Also on 1 June 2023, Nicola Jones received an OH report following the referral [156-157]. The key points from that report were that OH considered that the claimant was likely to be considered disabled under the EqA and that OH suggested alternative adjustments of a scribe/notetaker or the claimant being allowed breaks/more time.[119]On 12 June 2023, the claimant sent an external email to all transport providers informing them that one of the claimant’s colleagues with whom the providers would have had dealings during her career as a Transport Assistant (SW) would be leaving. The claimant invited providers to send farewell messages which would be passed on to the claimant. While obviously well-intentioned, there was a concern that the claimant’s email contained sensitive personal information which the claimant may have disclosed in breach of data protection obligations.[120]On 13 June 2023, the claimant attended a meeting convened by Nicola Jones. The purpose of the meeting was to find a way forward to get matters back on 10.5 Reserved judgment with reasons – rule 61 24 March 2017 track. The claimant was accompanied by her trade union representative, Mr Dobson. Margaret Oliver attended to take notes. Those notes are at [183-186].[121]The key points from that meeting were: 121.1. Nicola Jones explained that she had been trying to help the claimant with her time management and work life balance difficulties. 121.2. The claimant’s own position was that she was struggling with her workload. 121.3. Mr Dobson tried to explain that the absence of a probationary Period in the claimant’s contract had been a genuine mistake. He suggested a facilitated mediation to repair relationships. 121.4. Nicola Jones impressed upon the claimant that she needed everyone to do their jobs and follow direction in relation to tasks. The claimant agreed to do both. 121.5. Nicola Jones apologised for any unintended anxiety she may have caused the claimant. 121.6. The claimant said 90% of her stress came from Nicola Jones’ actions 121.7. Mr Dobson acknowledged that the claimant was finding it difficult to move on after the difficulties surrounding the way she perceived her probationary period was handled.[122]The meeting ended with Nicola Jones saying that she would need to take advice from HR since she felt things were at an impasse.[123]On 21 June 2023, the claimant attended a fact finding meeting with Linda Steel to consider the management concern that the claimant may in her email of 12 June 2023 have disclosed sensitive personal information to third party transport providers about one of the claimant’s colleagues (SW). The claimant was accompanied by her trade union representative Mr Dobson. Ann Banks attended as notetaker. Those notes are at [197-202].[124]By an email of 27 June 2023 [216], the claimant was informed by Linda Steel that no further action was to be taken in respect of her email of 12 June 2023. Also on 27 June 2023, the claimant initiated a grievance against Nicola Jones and (in respect of one allegation) Linda Steel. 10.5 Reserved judgment with reasons – rule 61 25 March 2017[125]The claimant made four allegations which she set out in a document headed, ‘Michelle Hepburn – Request to Commence Grievance Proceedings, 26/06/2023’ [211-215].[126]The four allegations were: 126.1. Nicola Jones’ deliberate aggravation of my anxiety by ‘Fabricated Probation Period Extension’ for two months. 126.2. Nicola Jones’ assertions that the claimant was not completing her core Tasks while not considering that the claimant was carrying out the work of 1.5 to 2 people. 126.3. Failure to make a reasonable adjustment because of refusals by Nicola Jones and Linda Steel to allow the claimant to audio record various meetings. 126.4. Nicola Jones’ imposition of ‘unfair and tyrannous sanctions’ on the claimant in the form of: I. Extension of an invalid probationary period. II. A threat to remove working from home privileges. III. A threat to remove flexi privileges IV. Being subjected to two informal disciplinary processes in June 2023[127]From 5 July 2023 to 2 August 2023, the claimant was absent form work because of ill health.[128]On 11 July 2023, by a letter sent by post and email [234], Joanne Scott (Manager -SEND Sensory Service) invited the claimant to attend a meeting in anticipation of the end of her fixed term contract. Joanne Scott was asked to do this meeting in her capacity as an authorised manager with delegated authority to conduct dismissal meetings on behalf of the respondent.[129]On 20 July 2023, Joanne Scott had that meeting with the claimant and Mr Dobson [246]. Joanne Scott handed a letter, also dated 20 July 2023, to the claimant confirming that the claimant’s employment would terminate on 31 August 2023 on the expiry of her fixed term contract on [238]. That letter advised the claimant of her right to appeal.[130]At the meeting of 20 July 2023, the claimant raised queries about the resourcing of the SEND Transport team. The gist of those queries was that the claimant believed that the team had ongoing employment needs which should allow her employment to continue, whether by an extension of her fixed term contract or 10.5 Reserved judgment with reasons – rule 61 26 March 2017 an opportunity to apply for a permanent role. Joanne Scott liaised with Nicola Jones to establish whether there were any vacancies, permanent or temporary, which could avoid the claimant’s dismissal.[131]In an email of 20 July 2023, Nicola Jones responded. Given the centrality of the resourcing of the SEND Transport team to the claim as whole, it is worth setting out that email in full. It is in these terms: ‘Hi Joanne, As discussed, the only substantive posts in the SEND Transport Team are Placement and Planning Transport Manager – Linda Steel SEND Transport Manager – Nicola Jones SEND Transport Assistants X 2 - Margaret Oliver, Sara Harmison SEND Transport Service Development Assistant – Christine Baldwin ITT Trainers – Hayley Bowater, Paul Welburn The Temp contracts are Senior SEND Transport Assistants – Margaret Oliver Fixed Term till 31 October 2023 SEND Transport Assistants Deb Coutts fixed term contract till 31 August 2023. Deb has been told that she will be reverting to her substantial post at this time but that she has the option to apply for any transport jobs that are identified in the service review Michelle Hepburn fixed term contract till 31 August 2023. This will not be extend[ed] but that she has the option to apply for any posts that are identified in the service review Rob Hadden employed though an agency for 6 months end date 28 September 2023. There are no plans to extend but he has the option to apply for any posts that are identified in the service review. I can assure you that no permanent posts have been offered by me only the option to apply for vacancies if there are any in the service review. 10.5 Reserved judgment with reasons – rule 61 27 March 2017 The plan is that all vacancies will be advertised externally and internally and I am not sure if the current job descriptions will remain unchanged. Let me know if you need any further information. Linda is completing the service review. Talk to you later. Nicola’[132]The majority of the tribunal (Mr Sagar dissenting) accepted Nicola Jones’ explanation of the resourcing of the SEND Transport team as out in her email. The effect of that finding is that: 132.1. The service review had not been completed by the date the claimant’s fixed term contract expired. 132.2. The SEND Transport team had no permanent vacancies for Transport Assistants for which the claimant could have applied. 132.3. The SEND Transport team had no temporary vacancies for Transport Assistants which could have been offered to the claimant whether by way of an extension of her existing fixed term contract or otherwise.[133]The tribunal also has regard to the obvious point that it is uniquely a matter for the respondent how to resource its various teams and departments. The claimant’s view of what roles the SEND Transport team either could or should involve is entirely beside the point. The resourcing of the team was a matter entirely for the respondent to determine. The respondent was perfectly entitled to await the outcome of the service review being undertaken by Linda Steel, which would then require senior management approval, before making any decisions on permanent or temporary vacancies. The service review was not completed until early 2024. The tribunal has already rejected the suggestion that the service review was delayed to somehow procure the claimant’s exit from the respondent’s employment.[134]Although it is understandable that the claimant was frustrated that the service review was not completed by 31 August 2023 when her temporary contract expired, that does not change the fact that because the service review remained incomplete there was no basis on which either to extend her existing contract or to create a permanent contract for which she could apply.[135]On 20 July 2023, in a document provided to Catherine McEvoy (Director of Children, Education and Skills) [239-245], the claimant: 10.5 Reserved judgment with reasons – rule 61 28 March 2017 135.1. made Disclosure 3 for the first time (“the Public Liability Disclosure”). The terms of the Public Liability Disclosure are at paragraph 274 below; 135.2. reiterated the Phoenix Disclosure; and 135.3. reiterated the Escort M Disclosure.[136]In email of 24 July 2023 [259-260], the claimant appealed against her dismissal to Catherine McEvoy. The grounds of appeal were set out in a document attached to that email [257].[137]In advance of that hearing, Linda Steel prepared a management report responding to each of the claimant’s grounds of appeal [276-278].[138]On 22 August 2023, the claimant attended a hearing to consider her appeal against dismissal. The appeal hearing was conducted by Gillian Forrester, Head of Newcastle City Learning. The claimant was accompanied by her UNISON representative Nick Ramanandi.[139]Ms Forrester dismissed all grounds of the claimant’s appeal. Mrs Forrester’s findings (all of which the tribunal accepted after considering the evidence it heard at this hearing) relevant to this claim were: 139.1. There was no ongoing need for a fixed term contract or permanent Employee in the SEND Transport team. 139.2. Linda Steel had explained to the Appeal panel that a new commissioning framework took effect form 1 September 2023 placing greater emphasis on Independent Travel and use of Personal Budgets the effect of which was to provide the families of service users with greater autonomy in making travel home to school travel arrangements. 139.3. This combined with the introduction of a larger number of travelproviders aimed to reduce the need for transport to be arranged by the SEND Transport team. 139.4. The reason that the claimant’s fixed term contract was not to be extended was for these operational reasons. 139.5. The contract for the current agency member of staff, Mr Hadden, 10.5 Reserved judgment with reasons – rule 61 29 March 2017 was due to expire in mid-September and HR had informed her that it was appropriate for continuity reasons not to replace Mr Hadden with the claimant for this short period after the expiry of the claimant’s fixed term contract. 139.6. The claimant accepted that she had not been promised a permanent role when entering her fixed term contract.[140]In a letter dated 29 August 2022, Ann Banks informed the claimant of the outcome of her grievance. While none of the ground of grievance were upheld, Ann Banks made several recommendations, including that Employee Services check contracts of employment to ensure that the probationary period clauses are accurate before they are sent out and for more formal meeting notes to be taken in future.[141]The tribunal finds after considering all the relevant evidence that the reason for the claimant’s dismissal was the expiry and non-renewal of her fixed term contract. There was no need for any intervening management action to bring the contract to an end. It simply expired under its own terms on 31 August 2023.[142]The tribunal finds that the respondent has shown that the reason why the respondent did not offer the claimant an opportunity to apply for a permanent role was that the respondent had no permanent vacancies in the SEND Transport team on 31 August 2023. The tribunal finds that at that date the respondent had decided in good faith that the identification of any permanent vacancies would not be decided until the service review was completed. Linda Steel did not complete the service review until early 2024. The tribunal is fortified in so finding since it also accepts the evidence of Linda Steel that no new permanent vacancies were appointed until January 2024, some 6 months after the claimant’s fixed term contract came to an end.[143]The tribunal finds that the respondent has shown that the reason why the claimant’s fixed term contract was not extended was that the respondent had no ongoing operational need to extend it. There was no other factor operating on the mind of Nicola Jones and/or Linda Steel. The tribunal accepted the supporting evidence of Linda Steel, to whom Nicola Jones reported, that the SEND Transport team were able to cover the workload after the claimant’s dismissal by a combination of utilising resource form elsewhere in the department and an increased emphasis on independent travel and personal budgets. The increased use of independent travel and the use of personal budgets meant that less reliance was placed on, and therefore less resource was needed in, the SEND Transport team. 10.5 Reserved judgment with reasons – rule 61 30 March 2017[144]The tribunal is fortified in so finding because the only other temporary contract in the SEND Transport team also came to an end on 31 August 2023. That contract was not renewed either. The contract holder was Deb Coutts who was seconded into the SEND Transport team until 31 August 2023. Debb Coutts returned to her substantive position from 1 September 2023. This was entirely consistent with the respondent’s case that it had no ongoing operational need for temporary Transport Assistants as at 31 August 2023 when the claimant’s temporary contract (and Debb Coutt’s secondment) came to an end.[145]The tribunal attached no significance to the fact that an agency temporary worker, Mr Hadden, continued to work under his agency contract until it expired in midSeptember 2023. Contrary to the claimant’s assertion, there is no employment right requiring an employer to displace an agency worker by extending a fixed term contract that has come to an end. Indeed, it would have made little practical sense to have done so for the remaining period of two weeks or so before Mr Hadden also left the team. To the extent that Mr Sagar may, in his minority judgment on the victimisation claim, have made any factual findings which are contrary to paragraphs 139 to 145, any such findings were not understood by the majority. Relevant law Reasonable adjustments
Relevant law
[146]The duty to make reasonable adjustments is set out sections 20 and 21 of the EqA. Those sections are in the following terms. 20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(4) …..(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring 10.5 Reserved judgment with reasons – rule 61 31 March 2017 that in the circumstances concerned the information is provided in an accessible format.(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty.(8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section.(9) ….(10) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service. 21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.[147]Section 20 (3) EqA read with Schedule 8, provides that an employer who applies a PCP to a disabled person which puts that disabled person at a substantial disadvantage in comparison with persons who are not disabled, is under a duty to take such steps as are reasonable to avoid that disadvantage. Section 212 (1) EqA provides that ‘substantial’ means ‘more than minor or trivial’.[148]Section 21 provides that a failure to comply with a duty to make reasonable adjustments in respect of a disabled person is discrimination against that disabled person.[149]Section 20 (5) EqA read with Schedule 8, provides that an employer who fails to provide an auxiliary aid or service where, but for the provision of such aid or service, a disabled person would be put at a substantial disadvantage in comparison with persons who are not disabled, is under a duty to take such steps as are reasonable to provide the auxiliary aid or service.[150]A respondent is not subject to a duty to make reasonable adjustments if it does not know and could not reasonably be expected to know both that the complainant has a disability and that he or she is likely to be placed at the relevant substantial disadvantage (Schedule 8, para 20 EqA).[151]When considering a claim for failure to make reasonable adjustments, a tribunal must identify 10.5 Reserved judgment with reasons – rule 61 32 March 2017 151.1. the provision, criterion or practice applied by or on behalf of an employer and/or the auxiliary aid/service not provided; 151.2. the identity of non-disabled comparators (where appropriate); and 151.3. the nature and extent of the substantial disadvantage suffered by the claimant: Environment Agency v Rowan [2008] ICR 218, EAT at [27] per Judge Serota QC.[152]The tribunal must also identify how the adjustment sought would alleviate that disadvantage, although an adjustment may be reasonable even if it is unlikely wholly to avoid the substantial disadvantage: Griffiths v Secretary of State for Work and Pensions [2017] ICP 160 at [29]. The nature of the comparison disabled and non-disabled people is not like that between claimant and comparator in a direct discrimination claim: it is immaterial that a non-disabled person with all the characteristics of the disabled person but for the disability would be treated equally, what matters is whether ‘the PCP bites harder on the disabled, or a category of them, than it does the able-bodied’ as a result (for example) of the disabled person being more likely to be disadvantaged by the PCP than a non-disabled person: Griffiths at [58].[153]The duty to make reasonable adjustments may frequently involve treating disabled people more favourably than those who are not disabled.[154]As Simler P in Sheikholeslami v Edinburgh University [2018] IRLR held: ‘The purpose of the comparison exercise with people who are not disabled is to test whether the PCP has the effect of producing the relevant disadvantage as between those who are not disabled, and whether what causes the disadvantage is the PCP… The Equality Act 2010 provides that a substantial disadvantage is one which is more than minor or trivial: see section 212 (1). The EHRC Code of Practice states that the requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people: see paragraph 8 of App 1. The fact that both groups may suffer a disadvantage in consequence does not eliminate the claim. Both groups might be disadvantaged but the PCP may bite harder on the disabled or a group of disabled people than it does on those without disability. Whether there is a substantial disadvantage as a result of the application of a PCP in a particular case is a question of fact assessed on an objective basis and measured by comparison with what the position would be if the disabled person in question did not have a disability.’ 10.5 Reserved judgment with reasons – rule 61 33 March 2017[155]What is reasonable is a matter for the objective assessment of the tribunal: Smith v Churchills Stairlifts plc [2006] ICR 524, CA. The tribunal is not concerned with the processes by which the employer reached its decision to make or not to make adjustments, nor with the employer’s reasoning: Royal Bank of Scotland v Ashton [2011] ICR 632, EAT.[156]In Tarbuck v Sainsbury’s Supermarkets Ltd 2006 IRLR 664, EAT, an employment tribunal, relying on earlier case law, upheld T’s claim of a failure to make reasonable adjustments, citing, among other things, the employer’s failure to consult with her over the steps that might be taken to ameliorate the disadvantage she experienced when competing with other staff for jobs. On appeal, Mr Justice Elias (then President of the EAT) held that, while it will always be good practice for the employer to consult, and it will potentially jeopardise the employer’s legal position if it does not do so, there is no separate and distinct duty on an employer to consult with a disabled worker. The only question is, objectively, whether the employer has complied with its obligation to make reasonable adjustments. If the employer does what is required of it, then the fact that it failed to consult about the duty or did not know that the obligation existed is irrelevant. It may be an entirely fortuitous and unconsidered compliance, but that is enough. Conversely, if the employer fails to do what is reasonably required, it avails the employer nothing that it has consulted the employee. If there were a preliminary obligation to consult, it would have been spelt out in the legislation.[157]Although the EqA does not set out a list of factors to be considered when determining whether it is reasonable for an employer to take a particular step, the factors set out in the Disability Discrimination Act 1995 are matters to which the tribunal should generally have regard including, but not limited to: a) the extent to which the step would prevent the effect in relation to which the duty was imposed; b) the extent to which it was practicable for the employer to take the step; c) the financial and other costs that would be incurred by the employer in taking the step and the extent to which it would disrupt any of its activities; d) the extent of the employer’s financial and other resources; e) the availability to the employer or financial or other assistance in respect of taking the step; f) the nature of the employer’s activities and the size of its undertaking; g) where the step would be taken in relation to a private household, the extent to which taking it would:(i) disrupt the household or(ii) disturb any person residing there.[158]Section 136 EqA provides that the claimant bears the burden of establishing a prima facie case that the duty to make reasonable adjustments has arisen and that there are facts from which it could reasonably be inferred, in the absence of 10.5 Reserved judgment with reasons – rule 61 34 March 2017 an explanation, that the duty has been breached. There must be evidence of some apparently reasonable adjustment which could be made, at least in broad terms. In some cases, the proposed adjustment may not be identified until after the alleged failure to implement it and this may even be as late as the tribunal hearing itself. Once that threshold has been crossed, it is for the employer to show that the proposed adjustment is not reasonable: Project Management Institute v Latif [2007] IRLR 579, EAT. Victimisation section 27 of the EqA[159]Section 27 of the EqA is in the following terms. ‘27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.(4) This section applies only where the person subjected to a detriment is an individual.(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.’ Burden of proof in the reasonable adjustments and victimisation claims[160]Section 136 EqA applies to the claims for failure to make reasonable adjustments. It also applies to the victimisation claim. Section 136 provides: ‘136 Burden of proof 10.5 Reserved judgment with reasons – rule 61 35 March 2017(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.’[161]When applying that section it is possible, when considering whether there are facts from which it would be possible to draw the inference that the respondent did what is alleged to have been less favourable treatment because of a protected characteristic, to consider the respondent’s explanation for the treatment. That is clear from the line of cases discussed in paragraph L [807] of Harvey, as follows: “Whether considering, then, the legacy legislation or the Equality Act burden of proof provision, the two-stage process remains the starting point. In the first place, the complainant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent had committed an unlawful act of discrimination against the complainant. According, to the Court of Appeal in Madarassy v Nomura International plc [2007] IRLR 246, [2007] ICR 867, CA, ‘could conclude’ must mean ‘a reasonable tribunal could properly conclude’ from all the evidence before it (also restated in St Christopher’s Fellowship v Walter-Ennis [2010] EWCA Civ 921, [2010] EqLR 82). That means that the claimant has to ‘set up a prima facie case’. In Madarassy it was held that a difference of status and a difference of treatment was not sufficient to reverse the burden of proof automatically; Underhill P in Hussain v Vision Security Ltd and Mitie Security Group Ltd UKEAT/0439/10, [2011] All ER (D) 238 (Apr), [2011] EqLR 699 warned that this must not be given the status of being a rule of law. Whether the burden has shifted will be a matter of factual assessment and situation specific. The second stage, which only applies when the first is satisfied, requires the respondent to prove that he did not commit the unlawful act. A note of caution, however, is necessary against taking from Igen [i.e. Igen Ltd v Wong [2005] ICR 931] a mechanistic approach to the proof of discrimination by reference to RRA 1976 s 54A. In Laing v Manchester City Council [2006] IRLR 748, [2006] ICR 1519 Elias P observed as follows:71. We would add this. There still seems to be much confusion created by the decision in Igen v Wong. What must be borne in mind by a tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been by reason of race.72. The courts have long recognised, at least since the decision of Lord Justice Neill in the King case to which we have referred, that this would be unjust and that there will be circumstances where it is reasonable to 10.5 Reserved judgment with reasons – rule 61 36 March 2017 infer discrimination unless there is some appropriate explanation. Igen v Wong confirms that, and also in accordance with the Burden of Proof directive, emphasises that where there is no adequate explanation in those circumstances, then a Tribunal must infer discrimination, whereas under the approach adumbrated by Lord Justice Neill, it was in its discretion whether it would do so or not. That is the significant difference which has been achieved as a result of the burden of proof directive, as Peter Gibson LJ recognised in Igen.73. No doubt in most cases it will be sensible for a tribunal formally to analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Rail Infrastructure v Griffiths-Henry [2006] IRLR 865 (at para 17), it may be legitimate to infer that a black person may have been discriminated on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single right answer and tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.’ In Commissioner of Police of the Metropolis v Maxwell UKEAT/0232/12, [2013] EqLR 680 it was emphasised that particularly in cases where there are a large number of complaints the tribunal is not obliged to go through the two stage approach in relation to each and every one.”[162]Nevertheless, in some cases, the best way to approach the question whether there has been direct discrimination within the meaning of section 13 of the EqA 2010 is by asking what the reason was why the conduct or omission in question occurred. That is the effect of the decision of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337. ‘Whistleblowing’ protection[163]Section 47B ERA provides that a worker is protected against being subjected to a detriment if that detriment is on the grounds that the worker has made a protected disclosure.[164]Section 103A ERA provides that an employee will be regarded as unfairly dismissed if the reason or principal reason for dismissal is that the employee has made a protected disclosure. No period of qualifying service is needed to acquire this right. 10.5 Reserved judgment with reasons – rule 61 37 March 2017 Meaning of “Protected disclosure”: Section 43A ERA 1996[165]The definition of a protected disclosure is set out in section 43A (1) ERA 1996. It is in the following terms: (1) In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. Disclosures qualifying for protection: Section 43B ERA 1996[166]The definition of a qualifying disclosure is set out in section 43B ERA 1996. It is in the following terms: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[167]Section 43(L) ERA 1996 provides that a disclosure of information includes a disclosure of information of which a person is already aware. The relevant part of that subsection is in the following terms:(1) In this Part— …(2)(3) Any reference in this Part to the disclosure of information shall have effect, in relation to any case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention. 10.5 Reserved judgment with reasons – rule 61 38 March 2017[168]A qualifying disclosure therefore means any disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and tends to show one or more of the matters in section 43B ERA 1996. For a consideration of the essential elements of the test of qualifying disclosure see Dobbie v Paula Felton t/a Feltons Solicitors [2021] (unreported) UKEAT/0130/20/OO(V) and as per Aubach J in Williams v Michelle Brown Am (unreported) UK EAT 0044/19 at paragraph [9]. ‘It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly the worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs [section 43B] (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.’[169]Reasonable belief relates to the worker’s belief in the accuracy of the information disclosed. This test is, in essence, a subjective one, although there is an objective element to it. The focus is on what the worker in question believed rather than what anyone else might have or have not believed in the same circumstances. However, there must be some substantiated basis for the worker’s belief – so rumours, unfounded suspicions, uncorroborated allegations and the like will not be sufficient.[170]In Babula v Waltham Forest College [2007] ICR 1026, it was held that a belief may be reasonably held and yet be wrong. Provided the whistleblower’s belief is objectively reasonable, the fact that it turns out to be wrong is not sufficient to render it unreasonable.[171]The burden of proof in whistleblowing detriment claims operates as follows. Section 48(2) ERA provides that it is for the employer to show the ground on which any act, or deliberate failure to act, was done. However, it does not follow that once a claimant asserts that she has been subjected to a detriment, the respondent must disprove the claim. Rather it means that once all the other necessary elements of a claim have been proved on the balance of probabilities by the claimant i.e. that there was a protected disclosure, that there was a detriment, and the responded subjected the claimant to that detriment, the burden will shift to the respondent to prove that the worker was not subjected to the detriment on the ground that she had made the protected disclosure.[172]The test for causation in detriment cases was considered by the Court of Appeal in Fecitt and Ors v NHS Manchester (Public Concern at Work intervening) [2012] ICR 372. The Court of Appeal refused to accept that the test should be 10.5 Reserved judgment with reasons – rule 61 39 March 2017 aligned with the test for a whistleblowing dismissal in section 103A ERA. Instead, it concluded that section 47B will be infringed if the protected disclosure materially (in the sense of more than trivially) influences the employer’s treatment of the whistleblower. The requirements of a “protected disclosure”: Sections 43C-H ERA1996[173]If an employee makes a qualifying disclosure to her employer, that disclosure must also attain the status of a “protected disclosure” pursuant to section 47B (1) (a) ERA. Section 43C to 43H set out the ways in which a qualifying disclosure attains the status of a disclosure which is protected. Section 43C (1) (a) ERA is in the following terms.[174]Section 43C (1) (a) ERA 1996 is in the following terms. ‘(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure — (a) to his employer’ The right not to suffer a detriment on the grounds that a worker has made a protected disclosure: Section 47B (1) ERA 1996[175]The protection against being subjected to a detriment on the grounds that a worker has made a protected disclosure is set out in section 47B (1) ERA 1996. It is in the following terms: ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.’[176]Guidance on the scope and meaning of these sections can be found in the following authorities.[177]According to the EAT in Cavendish Munro Professional Risks Management Ltd v. Geduld [2010] IRLR 38: to fall within the statutory definition of protected disclosure, there must be a disclosure of information. There is a distinction between “information” and an “allegation” for the purposes of the Act. The Employee must not simply be voicing a concern, raising an issue or setting out an objection.[178]According to the EAT in Darnton v. University of Surrey [2003] IRLR 133: a “qualifying disclosure” means any disclosure of information which in the “reasonable belief” of the worker making it tends to show a relevant failure. For there to be a “qualifying disclosure”, it must have been reasonable for the worker 10.5 Reserved judgment with reasons – rule 61 40 March 2017 to believe that the factual basis of what was disclosed was true and that it tends to show a relevant failure, even if the worker was wrong, but reasonably mistaken.[179]According to the Court of Appeal in Jesudason v Alder Hay Children's NHS Foundation Trust [2020] EWCA Civ 73: a detriment will be established if a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment.[180]According to the Court of Appeal in Abernethy v Mott Hay and Anderson [1974] IRLR 213: a reason for an act or omission is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to act or refrain from acting.[181]According to the EAT in Harrow London Borough v Knight [2003] IRLR 140: in determining the grounds upon which a particular act was done it is necessary to consider the mental processes both conscious and unconscious of the employer. It is not sufficient to simply apply a 'but for' test to the facts.[182]According to the Court of Appeal in Fecitt v NHS Manchester [2012] IRLR 64: the employer must prove on the balance of probabilities that the act, or deliberate failure, complained of was not on the grounds that the employee had done the protected act; meaning that the protected act did not materially influence (in the sense of being more than a trivial influence) the employer's treatment of the employee. Automatically unfair ‘whistleblowing’ dismissal: Section 103A ERA 1996[183]If an employee is dismissed for the reason, or the principal reason, that she made a protected disclosure, section 103A ERA 1996 provides that she will be regarded as unfairly dismissed. Section 103A ERA 1996 is in the following terms: ‘An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure’[184]Again, according to the Court of Appeal in Abernethy v Mott Hay and Anderson [1974] IRLR 213: a reason for an act or omission is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to act or refrain from acting. 10.5 Reserved judgment with reasons – rule 61 41 March 2017
Conclusions
[185]Applying the law to the facts as the tribunal has found them in relation to each of the issues the tribunal has come to the following conclusions. The victimisation claim The conclusions of the majority (Mr Sagar dissenting)[186]The detriment relied upon by the claimant in the victimisation claim was that her fixed term contract was not renewed. It was common ground that the claimant’s fixed term contract was not renewed. The detriment relied upon was therefore not in dispute.[187]The tribunal turns to the question of causation: was the protected act a significant influence (in the sense of being more than minor or trivial) on the reason why the respondent did not extend the claimant’s fixed term contract?[188]The protected act was the third limb of the claimant’s grievance of 27 June 2023 i.e. her complaint that the claimant had failed to make a reasonable adjustment under sections 20/21 EqA by not allowing her to audio record meetings with management.[189]The majority asked itself what motivated, consciously or subconsciously, Nicola Jones and/or Linda Steel, to decide not to extend the claimant’s fixed term contract of employment?[190]The clear finding of fact at paragraphs 130 to 133 above, included the following as the reason why the majority had little difficulty in answering this important question. Those findings of fact were that: 190.1. It was clear from the outset that the claimant was employed on a fixed term basis expiring on 31 August 2023. 190.2. The most obvious ‘comparator’ was Debb Coutts who was also engaged under a fixed term contract in the SEND Transport. Ms Coutts contract also ended on 31 August 2023. Her contract was also not renewed, and she reverted to her substantive position elsewhere in the council. 190.3. The tribunal accepted the evidence of Nicola Jones and Linda Steel – the two managers most directly responsible for the resourcing of the SEND Transport team – that no temporary or permanent appointments were made in the SEND Transport team until early 10.5 Reserved judgment with reasons – rule 61 42 March 2017 2024, some six months after both the claimant and Ms Coutts had left. The majority considered Mr Sagar’s minority observations to the contrary effect on this part of the evidence (see paragraph 190.4 below) to lack specificity and to be without any actual evidential basis. 190.4. The claimant’s personal views on the need for Transport Assistants were beside the point. It was a decision uniquely for Nicola Jones and Linda Steel to take in consultation with yet more senior management. 190.5. The tribunal rejected the suggestion that there was any conspiracy to remove the claimant from the workforce. This was a suggestion introduced by the claimant while cross examining the respondent’s witnesses. It was not pleaded and it was not in the claimant’s witness statement. Furthermore, the tribunal accepted that Nicola Jones and Linda Steel always acted in good faith. 190.6. The claimant accepted that she had not been promised a permanent role on the expiry of her contract. 190.7. The claimant accepted that any permanent role was contingent on the completion of the service review by Linda Steel. That service review became delayed and had not been completed by 31 August 2023. 190.8. The SEND department decided for objective, operational reasons to place more emphasis on the less costly strands to its services: independent travel and personal transport budgets. That decision placed less need on the more costly strand of the commissioning of transport services by the SEND Transport team which requires the use of SEND Transport Assistants to do the commissioning. 190.9. In early 2024, that position changed because of an alteration to the Requirements of the service emanating from central government, in the form the Department for Education. That expanded the number of students eligible for SEND transport assistance. That meant that the respondent had to add resource to its SEND Transport team, including adding resource in the form of additional SEND Transport Assistants.[191]Looked at in terms of the burden of proof, the majority found that the claimant had failed to prove any facts from which the tribunal could legitimately conclude that the reason why the claimant’s contract was not extended was because of the 10.5 Reserved judgment with reasons – rule 61 43 March 2017 protected act of raising a grievance about the alleged failure to make a reasonable adjustment. The claimant’s victimisation case must fail on that basis.[192]That said, this was also a case where the majority felt able to say with confidence that the respondent was able to show that the reason why the claimant’s temporary contract was not extended was because as at 31 August 2023 the respondent simply had no ongoing operational need for either temporary or permanent SEND Transport Assistants. The claimant’s victimisation case must also fail on that basis.[193]For those reasons, the claimant’s victimisation claim is not well-founded and fails. The conclusions of the minority (Mr Sagar)[194]Mr Sagar concluded that things changed when the claimant raised her grievance. Mr Sagar considered that the claimant’s decision to include more senior management (Linda Steel) in her grievance brought about that change.[195]Mr Sagar concluded that the reason why the claimant’s fixed term contract was not renewed was significantly influenced by the inclusion in her grievance of 27 June 2023 of her allegation that the respondent had failed to make a reasonable adjustment by refusing to allow her to audio record meetings with management.[196]The minority conclusion on the victimisation claim is of course not inconsistent with the majority decision (which included Mr Sagar) that the respondent had not failed to make a reasonable adjustment. The protection against victimisation does not require the claimant’s grievance to be well-founded. It is sufficient that the complaint in the grievance was not made in bad faith. The respondent conceded that the grievance in so far as it related to the failure to make adjustment attracted the protection of section 27 EqA.[197]Mr Sagar considered the claimant’s victimisation claim to be well-founded to be based on the following evidence in particular: 197.1. The claimant worked in the role as an agency staff member for some months before being given the fixed term contract which specifically said it was to cover “a vacancy until a permanent postholder is appointed.” He found her assertion that she understood she would become the permanent postholder to be credible. 197.2. The claimant had difficult meetings in June 2023 (until the 21st) with Nicola Jones, her manager, and Linda Steel, Miss Jones’ manager, but was never told anything formally related to her performance 10.5 Reserved judgment with reasons – rule 61 44 March 2017 being inadequate. On 27 June 2023 she had told her ‘role’ (i.e. work) would be “monitored” [216]. 197.3. On 27 June 2023 the claimant raised her formal grievance including Ms Steel as a person she was aggrieved about. On 29 June 2023 she was referred to Occupational Health in relation to the grievance (its report arrived only on 18 July 2023). However, on 5 July 2023 Joanne Scott, a manager from another section, was engaged by HR and she invited the claimant on 6 July 2023 to an end-ofcontract meeting and ended the contract on 20 July 2023. The respondent submitted no evidence about how and why this person was suddenly brought in by HR. 197.4. While the respondent asserted the service review was “ongoing” it engaged a number of staff into similar roles as the claimant not long after her departure. On the balance of probabilities what primarily caused the dismissal was the claimant’s grievance against Ms Steel on 27 June 2023. The reasonable adjustments claim The conclusions of the majority (Mr Moules dissenting) The parties’ respective cases[198]This was a case where it was particularly important to be clear about the precise scope of the claim that the claimant was in fact pursuing. It is not for the tribunal to adopt an inquisitorial approach to any part of the either party’s case. The role of the tribunal is to determine the issues presented to it by the parties.[199]The agreed revised list of issues (set out at paragraphs 9.4 (a) – (c) of The Agreed List of Issues above) identifies three ways in which the substantial disadvantage to which the claimant was potentially put could be avoided. They are: a) Allowing the claimant to make audio recordings of meetings b) Providing a scribe to take down notes during meetings; and c) Allowing the claimant additional breaks and/or time to take her own notes.[200]The claimant made a clear concession in the agreed revised list of issues. That concession was as follows: It is accepted [by the claimant] that the respondent took steps (b) and (c) but did not take step (a) (emphasis added) 10.5 Reserved judgment with reasons – rule 61 45 March 2017[201]The inescapable effect of that concession is that the claimant was not pursuing a case that the respondent had failed to provide a scribe or had not allowed her breaks and/or time to take her own notes at meetings. The claimant accepted that this had been done. For better or worse, the claimant’s case was that she was not allowed to audio record meetings and that was the only way her disadvantage could have been avoided. In his dissenting judgment, Mr Moules preferred to rely on the earlier version of the agreed list of issues which stated that: It is the claimant’s position points (b) and (c) above would not have removed the disadvantage. The majority considered this to be a distinction without a difference.[202]The respondent conceded that it had a PCP of not allowing the audio recording of meetings and conceded that this PCP was applied to the claimant. The respondent’s position was that the adjustments that it did make (and that the claimant conceded had been made) had the effect of removing the disadvantage. On that basis, the respondent contended that it did all that the law requires.[203]That claimant’s concession also brings this part of the claimant’s case into alignment with her own pleadings. The particulars of claim make no mention whatsoever of any failure to provide a scribe or of not being allowed breaks/time to make her own notes. In other words, the pleadings reflect that the claimant is not complaining of any failure by the respondent to make either of adjustments (b) or (c) in the agreed list of issues.[204]The claimant’s concession is also consistent with the entire thrust of the case she presented in the management phase of this dispute. The sole adjustment she sought in the management phase was to be allowed to make an audio recording of meetings. In these circumstances, the tribunal was simply not seized of any other adjustments claim than the allegation that the respondent’s PCP not to allow her to audio record meetings was a failure to make a reasonable adjustment.[205]The relevance to this case of the provision of a scribe and/or additional breaks/time to take her own notes was that these were the alternative adjustments suggested by the Occupational Health Nurse (‘the OH Nurse’) in her report following her assessment of the claimant on 1 June 2023 [156-157]. The OH Nurse had been told by the respondent in advance of that assessment that the respondent was not prepared to allow the claimant to make an audio recording of meetings. Hence the suggested alternatives.[206]The claimant had this to say in her evidence about the alternative suggestions made by the OH Nurse: 10.5 Reserved judgment with reasons – rule 61 46 March 2017 ‘Yes, I believed I was entitled to have my – a tape recorder. Why would you push unsuitable reasonable adjustments on a disabled person when they’re clearly telling you, it’s like you’re telling me what disability aids I can have…’ Transcription Day 2 page 27 paragraphs 10 to 12.[207]The claimant relied on a decision of the Leicester County Court of November 2005 in her own favour [64-74]. That decision was made in the context of meetings the claimant needed to attend with the Housing Department of Leicester City Council in relation to her residential needs. The outcome of that case was that the court found that the claimant ought to have been allowed to audio record meeting as an adjustment under what was then the Disability Discrimination Act 1995. The court awarded her compensation of £200.00. Did the respondent fail to provide the reasonable adjustment identified at paragraph 19.2 (a) of the Agreed List of Issues above?[208]The majority concluded that it was not unreasonable on the part of the respondent to make the adjustment (i.e. audio recording) sought.[209]As a ‘first requirement’ case, the key elements for the tribunal to identify (as set out in Rowan) are as follows: 209.1. The PCP is the respondent’s practice of not allowing the audio recording of meetings. The respondent accepted it had this PCP. 209.2. The non-disabled comparators are those who do not have the claimant’s conditions of hypomania and anxiety together with the implications of those conditions for the claimant in terms of her ability to participate effectively in meetings. 209.3. The substantial disadvantage suffered by the claimant was the likelihood that she would be less able to be productive and digest important information in meetings without suffering an overwhelming feeling of anxiety which would have a detrimental effect on her health.[210]The tribunal does not consider this to be a section 20(5) EqA third requirement case. The claimant had available to her the auxiliary aid that she wanted to use i.e. a tape recorder. She used it briefly at the meeting of 4 May 2023. The issue was that the respondent had a practice of not allowing the use of audio recording in meetings with management. 10.5 Reserved judgment with reasons – rule 61 47 March 2017[211]The established principles of the duty to make reasonable adjustment relevant to this case are that: 211.1. It is not a duty to provide the claimant with her preferred adjustment. The duty is to take reasonable steps to avoid the disadvantage: Garrett v Lidl Ltd. 211.2. If the disadvantage is avoided by the steps taken by the respondent, the duty on the respondent is discharged. 211.3. This duty is an objective one which may be satisfied even inadvertently: Churchill Stairlifts plc. 211.4. The focus is on the practical issue of avoiding any disadvantage, not on the process of consultation or decision-making: Royal Bank of Scotland v Ashton.[212]There were significant difficulties with the claimant’s case. One of those difficulties is that claimant accepted in the List of Issues and in her own evidence that the disadvantage about which she was concerned was in fact avoided by the adjustments made by the respondent. Q (from Mr Heywood): The long and the short of it Ms Hepburn is it’s just that you wanted a different adjustment, isn’t it? You wanted a tape recorder, and you weren’t prepared, as it were, to accept anything less than that. A: No, it’s not at all….When I proceeded with meetings with those adjustments in place, like the meeting with Linda, the union rep said if I didn’t proceed, I was going to get a new disciplinary charge on top of all the others I was facing…I would go home and just be absolutely zonked because of the acute state of distress….if I had my disability aid I would have been able to have been productive in the meetings rather than seriously compromised. Transcription Day 2 page 29 paras 1-20 (emphasis added)[213]The key part of that exchange is that the claimant confirmed in her evidence the same position that she had adopted in her particulars of claim and in the revised list of issues, namely that the respondent did put in place the alternative adjustments suggested by the OH Nurse. 10.5 Reserved judgment with reasons – rule 61 48 March 2017[214]This is also clear from the following exchange about the meeting of 21 June 2023 during the claimant’s evidence which was held to consider a concern that the claimant may have disclosed sensitive personal information relating to a work colleague to external transport service providers: Q (from the tribunal): If a scribe you trusted, and [who] was capable of doing a good job, had been provided throughout this matter when you asked for a recording, would that have satisfied your concerns? … A: A personal scribe who writes everything down after me is probably as good as a tape recorder. Transcription Day 2 page 28 paras 1-10[215]The claimant also accepted in her evidence that Ann Banks, the notetaker at the meeting on 21 June 2023, did a good job. Q (from Mr Haywwod): So, what I say to you is on the face of it, you having more time and a dedicated note taker being provided provides you with the solution to the problem…. A: On that particular occasion, Anne (sic) did a very good job. Transcription Day 2 page 27 paras 22-25[216]The majority found much of this evidence confusing. At some points in her evidence, she was maintaining her clearly stated pleaded position that only an audio recording would have removed the disadvantage. At other points in her evidence, the claimant was contradicting herself by accepting a scribe would have been as good as an audio recording and praising Ann Banks for the way she carried out that role.[217]The majority concluded that this was a manifestation of a general tendency on the claimant’s part to take an adamant and uncompromising approach when interacting with her mangers. This was also shown in the claimant’s refusal to accept the way her managers handled her disclosure about Phoenix taxis’ compliance standards; and her repeated insistence that Escort M should be 10.5 Reserved judgment with reasons – rule 61 49 March 2017 allowed to return to work. There was a clear pattern of the claimant having no insight into any perspective other than her own.[218]In the claimant’s email of 26 June 2023 [203], the claimant says this about Ann Bank’s note taking on 21 June 2023: ‘I have attached amendments to the notes I would like stored with the original notes made by Ann. Please pass on my thanks to Ann for her diligent work only a few minor differences to my recall of the meeting.’[219]In the tribunal’s assessment, the effect of that evidence is that the claimant accepted that at the meeting on 21 June 2023 any anticipated disadvantage was effectively avoided by the provision of the auxiliary service of a dedicated notetaker. That the claimant had a preferred way to avoid the same disadvantage is beside the point (Garrett).[220]The tribunal carefully considered the claimant’s participation in both meetings with management that the claimant attended after 1 June 2023 i.e. after the date on which the respondent had knowledge of both the claimant’s disability and knowledge of the likely substantial disadvantage.[221]The meeting on 13 June 2023 was to find a way to move forward with the claimant’s work situation which had become derailed over concerns about the claimant’s performance and whether it could be managed as a probation issue.[222]The second meeting on 21 June 2023 was to consider a management concern that the claimant may have disclosed certain sensitive personal information to third party transport providers about one of the claimant’s colleagues.[223]On both of those occasions the tribunal unanimously concluded that the claimant fully and effectively participated in the meetings. In other words, the anticipated disadvantage was either avoided by the arrangements put in place by the respondent or the anticipated disadvantage did not materialise at all. Either way, the view of the majority was that there was no breach of sections 20/21 EqA.[224]The tribunal has the advantage of being able to consider both the management notes of those meetings together the claimant’s own suggested amendments to those notes. Both the original notes and the claimant’s suggested amendments are only compatible with the full and effective participation by the claimant in both meetings.[225]For example, the claimant’s amendments to Margaret Oliver’s notes of the meeting of 13 June [205] include: ‘Page 4 sentence 1 10.5 Reserved judgment with reasons – rule 61 50 March 2017 Remove “it might be that” – there was no ambiguity [Probation Meeting notes 24/02/2023 “I have told Michelle formally that if this practice continues, I will require to work in the civic full time, and her computer will need to remain there][226]This demonstrated a detailed appreciation of what happened at the meeting of 13 June 2023 and an ability to cross-reference those notes with earlier documents produced by the respondent. Later in the document setting out the claimant’s amendments to Margaret Oliver’s notes, the claimant says: Paragraph 17, sentence 1 Insert the word ‘not’ into ‘she was on probation’[227]This was the claimant requesting not an amendment to correct the record, but to change the meaning of the notes to reflect the claimant’s preferred interpretation of events. Again, this did not suggest that the claimant had any difficult at all in recalling matters that had been considered at the meeting on 13 June 2023.[228]The claimant’s amendments to Ann Bank’s notes of the meeting of 21 June 2023 include the following: ‘Page 5 Line 20/21 “I printed them off using the work’s printer” Add “After I clocked off on Tuesday afternoon”[229]This did not suggest to the tribunal that the claimant’s ability to participate in the meeting of 21 June 2023 had been impaired. On the contrary, it showed a detailed ability to recall what had taken place which is only consistent with active participation.[230]The tribunal finds that the claimant was manifestly able to participate in both meetings. The original notes reflect that the claimant was the principal contributor to both meetings. They show she was actively engaged in both meetings. She challenged and corrected management at both meetings. After the meetings, she was able to analyse and amend the notes in detail.[231]The tribunal also rejects (while recognising that it was not a pleaded detriment in any event) the claimant’s contention that it took her longer to analyse the meeting notes than it would have done had she had an audio recording available to her. The reason the claimant took so long to analyse notes was her determination to leave no stone unturned.[232]Even as long after these meetings took place as this final hearing, the claimant was better able to recall the detail of those meetings than any of the respondent’s 10.5 Reserved judgment with reasons – rule 61 51 March 2017 witnesses. The claimant’s difficulty was not participation in or recall of meetings. Her difficulty was at least in part one of revisionism in that she wanted the notes to reflect her own narrative rather than for those notes to be an objective reflection of what in fact happened at those meetings. This reflected the unreliability of the claimant’s perception of events generally.[233]The conclusion of the majority is that at no stage was the respondent in breach of its duty to make reasonable adjustments after it had the knowledge required by schedule 8 paragraph 20 EqA. The Minority judgment of Mr Moules[234]Mr Moules concluded that, in respect of the meeting of 13 June 2023, the respondent was in breach of its duty to make reasonable adjustments.[235]At paragraph 6 of the respondent’s closing submissions, it says: ‘In any event, the Respondent was in possession of OH advice detailing the substantial disadvantage by 1 June 2023 [157].’ It follows from that the respondent was under a duty to make reasonable adjustments in relation to the conduct of management meetings it held with the claimant thereafter.[236]Prior to the OH assessment, on 9 May 2023, the claimant articulated the benefit to her of having a tape recorder to record meetings. She says of that it performs "multiple functions ... reducing my anxiety and allowing me to participate fully in proceedings without fear of misrepresentation or false allegations/perceptions of aggression". [Para 13 on 143][237]The OH Report [156/157] is dated 1 June 2023, and it talks about "her ability to focus and concentrate". There are suggested alternative reasonable adjustments [to the tape recording] and they are: 237.1. " ... more time is given during the meeting for her to take notes or she is provided with a scribe during the meeting ...". 237.2. The report goes on to suggest a "stress risk assessment" would likely be beneficial. The stress risk assessment is not done. 237.3. Those two suggested reasonable adjustments are reproduced at Para 11 (b) and (c) of the Agreed List of Issues [52b]. The List of Issues go on to record: “It is the claimant’s position that points b and c above would not have removed the disadvantage.” [52c]. 237.4. That does not detract from the fact that the duty to make reasonable 10.5 Reserved judgment with reasons – rule 61 52 March 2017 adjustments apply to the Respondent and not to the Claimant [Cosgrove v Caesar and Howie 2001 IRLR 653, EAT].[238]It was, of course, entirely open to the respondent to evaluate what it had done on 25 April 2023 and decide that that was entirely adequate either to discharge the duty, or that no reasonable adjustments were in fact necessary, because there was no ‘substantial disadvantage’ and that any impact on the Claimant was at best ‘minor or trivial’. Critically though, that was not its position.[239]Nicola Jones conducted the meeting on 25 April 2023 [134 to 136] and the aborted one on 4 May 2023 [139]. She also made the OH referral [140] and, therein, asks “… is there anything else in way of a reasonable adjustment … to help her when attending meetings.”[240]Occupational Health responded positively with the two proposed reasonable adjustments described at Paragraphs 11 (b) and (c) of the Agreed List of Issues. The key point is that those went above and beyond the normal way in which management held its meetings with employees: i.e., the provision of a management note-taker and the capacity for the employee to check over the notes subsequent to the meeting.[241]There was even more evidence that the respondent accepted that the normal way in which it conducted management meetings would not suffice and that can be found at [254 to 255]. This is an email from Ann Banks to the Claimant on 21 July 2023. Here we have the respondent’s fully considered position on the reasonable adjustments it says would, “support [the claimant] during the process”. It is clear from the email that the Respondent had considered both OH Reports [June and July 2023] before coming to its view on suitable reasonable adjustments. Again, the respondent could have reviewed what had happened at the meeting 13 June 2023 and decided that the normal way it conducted meetings was adequate. It did not do that.[242]The inescapable fact is that the meeting on 13 June 2023 was not conducted in accordance with either option. The respondent handled the meeting on 13 June 2023 no differently to the way in which it handled the meeting on 25 April 2023, even down to the same note-taker [Margaret Oliver] being present.[243]There is no evidence that the claimant was afforded more time and a note-taker is not a scribe. The distinction being that a scribe takes a verbatim record of what is said, whereas a note-taker summarises the discussion. The claimant describes the difference at Paragraph 16 of the Majority Judgment: “A personal scribe who writes everything down after me is probably as good as a tape recorder.” 10.5 Reserved judgment with reasons – rule 61 53 March 2017[244]The claimant had previously complained about the accuracy of the notes provided by Margaret Oliver for the meeting on 25 April 2023. On her own account, Margaret Oliver says notes were "all over the place” [137] and the Claimant describes them as "incomprehensible" [189].[245]Accordingly, ahead of the meeting on 13 June 2023, the respondent ought to have known that the claimant’s anxiety would likely be heightened if it did nothing different. In any event, the notes of the 13 June 2023 meeting also required amendment and did not record “everything … after me”. And the Claimant makes this point at [189]: “I am not happy with this method of recording meeting events; it does not reflect discussions accurately …”. Even if the notes could or were corrected to the satisfaction of the Claimant, this still does not deal with the anxiety experienced by the Claimant during the meeting.[246]In submissions, the claimant deals with the meeting on 13 June 2023, whereas the respondent did not specifically deal with that meeting, and she refers to the stress caused: “On 19/06/23 (Bundle p.189), the Claimant submitted numerous amendments, causing unnecessary stress directly linked to her disability.”[247]Mr Moules agrees partly with the finding of fact of the majority i.e., that the anticipated substantial disadvantage, in terms of ultimately securing a reasonable record of what was said and the Claimant being able to participate, did not arise at the meeting of 13 June 2023. However, he believes that the process adopted by the Respondent did result in the “unnecessary stress” felt by the Claimant within the meeting and concluded that the OH report’s suggested adjustments should have been made. The Claimant went off sick with stress on 29 June 2023 [222] and Mr Moules is of the opinion that this is related to the treatment of the Claimant over several meetings, including the one held on 13 June 2023.[248]In any event, Mr Moules considered that the likelihood of suffering a disadvantage was enough to require the suggested adjustments to be made. In the case of SCA Packaging Ltd v Boyle 2009 ICR 1057, HL, the court established that a substantial adverse effect is one that “could well happen”, not one that was necessarily there continuously. Even if the Claimant had ‘coped’ on 13 June 2023, that was not enough to defeat the claim.[249]To find otherwise would be to leave the matter to chance and allow employers who had acknowledged repeatedly, as this Respondent had, the substantial disadvantage at which the claimant was likely to be placed in management meetings, to escape liability if the substantial disadvantage had not in fact materialised on an occasion. There is no requirement for a substantial disadvantage to manifest itself on each and every occasion. 10.5 Reserved judgment with reasons – rule 61 54 March 2017[250]In conclusion, in terms of the meeting on 13 June 2023, Mr Moules’ view is that none of the reasonable adjustments at Paragraph 11 of the List of Issues [52b] were made. On Paragraph 12 [52c] it was reasonable for the Respondent to have made one of more of them, but because it did not do so the Claimant’s claim succeeds.[251]Mr Moules concluded that in respect of the meeting of 13 June 2023, the respondent was in breach of its duty to make reasonable adjustments.[252]Mr Moules considered that the respondent had conceded that the claimant was likely to be put at a substantial disadvantage at this meeting and at the meeting of 21 June 2023. Mr Moules was not critical of the respondent for the way it handled the meeting of 21 June 2023 at which Ann Banks took the notes to the satisfaction of the claimant.[253]Mr Moules criticises the respondent’s handling of the meeting on 13 June 2023 since at that meeting the respondent made no changes to the way an earlier meeting on 24 April 2024 had been handled: the same note taker (Margaret Oliver) was provided by the respondent and the respondent was by then already aware that the claimant had taken objection to Margaret Oliver’s notetaking abilities at the meeting of 24 April 2024.[254]Mr Moules relies on the respondent’s concession that by 1 June 2023, the respondent was aware of the claimant’s disability, her substantial disadvantage and of the OH Nurse’s suggested alternative adjustments in the OH report of 1 June 2023. On that basis, Mr Moules concluded that the respondent was in breach of duty by not making those adjustments at the meeting of 13 June 2023.[255]Mr Moules, while agreeing with finding of fact of the majority that the anticipated substantial disadvantage did not arise at the meeting of 13 June 2023, concluded that the OH report’s suggested adjustments should still have been made. Mr Moules considered that the likelihood of suffering a disadvantage was enough to require the suggested adjustments to be made. To find otherwise would be to leave the matter to chance.[256]For the sake of clarity, the concession of the disadvantage that Mr Moules says was made by the respondent is what happened in the management phase of this matter. The respondent accepted in the workplace that after 1 June 2023 that the claimant was disabled; it was aware of the substantial disadvantage at which the claimant was likely to be placed; and it was aware of the OH report suggested adjustments on the form of a scribe or additional breaks/time for the claimant to make her own notes. 10.5 Reserved judgment with reasons – rule 61 55 March 2017[257]Mr Moules agreed with the majority’s understanding of the respondent’s position in the context of this litigation i.e. the respondent conceded disability status, knowledge of disability and knowledge of likely substantial disadvantage. The respondent did not concede in this litigation that the substantial disadvantage did in fact arise at any of the meetings after 1 June 2023 and the respondent positively asserted that if such a disadvantage did arise it was avoided. Both of those points are identified in the list of issues as live issues for the tribunal to determine.[258]Both parties, and all members of the tribunal, understood the claimant’s case to be that only being permitted to audio record meetings by way of an auxiliary aid would discharge the duty to make reasonable adjustments. The majority did not consider it to be open to the tribunal to pursue any line of analysis that the claimant was not actually pursuing herself. Whistleblowing detriment claim Did the claimant make one or more protected disclosures? Disclosure 1 on 23 December 2022: Phoenix Taxis DBS checks[259]The respondent conceded that the information provided by the claimant on 23 December 2022 fell within section 43A ERA 1996 i.e. that it was a protected disclosure.[260]This disclosure was set out in an email of 23 December 2022 from the claimant to Mr Rodden at Phoenix taxis and copied to her line manager, Nicola Jones, and her colleague in SEND Transport, Margaret Oliver [97]. The material parts of that email are in the following terms: ‘…Can I check whether you have made any previous enquiries with NCC Licensing about [anonymised] taxi badge status, or is this the first time you have actually seen his DBS? Nicola is currently assessing whether this DBS is acceptable. Also [anonymised] DBS is only a basic one, so you will need to apply for an enhanced DBS immediately and ask her to complete an E-dec for our records. We will also need photos from both to prepare ID cards. Neither staff member seems to have completed the safeguarding training yet, and neither have attended our transport briefing. This also needs to be addressed immediately.’[261]The tribunal understood this to be a disclosure of information that tended to show a breach of a safeguarding legal obligation to which the respondent was subject 10.5 Reserved judgment with reasons – rule 61 56 March 2017 and/or that the health and safety of an individual (the vulnerable SEND Transport service users) had been, was being and/or was likely to be endangered. Alleged reiteration of Disclosure 1 on 24 February 2023[262]The alleged disclosure of 24 February 2023 was made in the context of a probationary period review meeting held by Nicola Jones on that date. It is evidenced in writing in Nicola Jones’s pro forma record of that meeting [115]. The part of that record on which the claimant relies is in the following terms: ‘She [the claimant] does not feel confident her concerns were dealt with appropriately by management in relation to the breaches to the safeguarding contractual requirements raised by her about [P]phoenix in December. She also questions why they are still on the framework.’[263]The content of this alleged disclosure does not convey any information. It is an expression of the claimant’s opinion on the adequacy of management action in response to her earlier disclosure on 23 December 2022. An expression of personal dissatisfaction with management action is uniquely personal to the claimant. The claimant had no reasonable belief that her personal views on the adequacy of management action were a matter of public interest. Nor does dissatisfaction with management action tend to show any of the matters in section 47B (1) (a)-(f) ERA 1996.[264]The tribunal has concluded that this alleged disclosure does not meet the requirement of a qualifying disclosure in section 43B (1) ERA 1996. Reiteration of Disclosure 1 on 27 February 2023[265]The alleged disclosure of 27 February 2023 is the claimant’s response to Nicola Jones’s request on 24 February 2024 that the claimant put any disclosures she might wish to make in writing.[266]In the claimant’s own document entitled ‘Notes re: Probation Review, Michelle Hepburn, Fri. 24/02/2023 and Tuesday 28/02/2023 [117-118], the claimant relies on the following passage: ‘Phoenix -Longstanding compliance/trust issues. 4- staff members discovered on SEND transport routes on 22/12/2022 who had not been vetted by Phoenix – no safeguarding training completed, 2 with DBS traces (unseen by Phoenix) and one basic DBS. Brother & sister team had been working for 2 months on a route without any checks. Significant risk of adverse publicity in the event that a parent chose to take concerns 10.5 Reserved judgment with reasons – rule 61 57 March 2017 to the media. I spent considerable time collating evidence, submitted as a safeguarding alert to NJ on 23/12/2023. I expected that this information would lead to Phoenix being barred from our framework or at least prevented from bidding for from future tenders. I discovered on 24/02/2023 that my safeguarding alert had not been forwarded to Melanie Scott [LADO] as I anticipated. Action taken only relating to breach of contract. Please confirm the following; Why did this not meet the threshold of serious safeguarding breaches, notifiable to our Safeguarding Lead, Melanie Scott?’[267]The tribunal finds that this was essentially a repetition of the information originally provided on 23 December 2022. However, section 43L (3) ERA 1996 provides that a disclosure of information can still be made even if the person to whom it is disclosure is already aware of it.[268]The tribunal concluded this was a qualifying disclosure on the same basis as the original disclosure on 22 December 2022. It was information that the claimant reasonably believed tended to show that the respondent had been in breach of its legal obligations to ensure the safeguarding of SEND transport users by ensuring that drivers and escorts had undergone appropriate DBS checks and/or that the health and safety of an individual had been endangered. Reiteration of Disclosure 1 on 20 July 2023[269]The tribunal also considered whether the further (and more expansive) iteration of Disclosure 1 on 20 July 2023 added anything of substance to the first iteration on 23 December 2022. The tribunal concluded that it did not.[270]However, it did reiterate the information in the original disclosure of 22 December 2022. The tribunal therefore found the information provided on 20 July 2023 to be a further protected disclosure. Disclosure 2 on 24, 27 February 2023, 10 May 2023, 1, 5, 6 June 2023 and 20 July 2023: Escort ‘M’[271]The tribunal concluded that none of the alleged iterations of Disclosure 2 were qualifying disclosures within the meaning of section 43B (1) ERA 1996. They were therefore not protected disclosures for the purposes of the right not to be subjected to detriment under section 47B or for the purposes of the right not to be unfairly dismissed under section 103A ERA 1996. 10.5 Reserved judgment with reasons – rule 61 58 March 2017[272]Each of these alleged disclosures related to the alleged unfair treatment of an escort (referred to as ‘Escort M’) who was engaged by a third party contractor in the provision of SEND transport services on behalf of the respondent.[273]On or around 16 February 2023, the respondent took a decision to remove Escort M as an authorised SEND transport escort. Escort M had failed a DBS check because of a conviction for child neglect. The respondent had placed a DNU (‘Do Not Use)’ notice on their system.[274]The claimant considered this action to unjustified, callous and insensitive. The claimant also considered this decision to have been taken without regard for the mitigating circumstances in Escort M’s case. The most succinct iteration of Disclosure 2 was set out in writing by the claimant in her document dated 27 February 2023 [117-118]. It is in the following terms: ‘Decision to remove [Escort M] from post on 16/02/2023, on the understanding that no alternative Escorts were available to transport children home, which would leave them stranded at school. The evidence available at the time confirmed that both the DBS and NCC Social Services had no concerns about [Escort M]’s fitness to work with children and she is currently engaged as Legal Guardian for her grandson. No consideration was given to 1) the significant disruption and distress that would be caused unnecessarily to the children on [Escort M]’s route and their families or 2) the distress caused to [Escort M] when she was ordered to leave her position of 3 years (exemplary record), with no notice and blacklisted with a DNU notice placed on her Capita ID. I was mortified by the undignified treatment of [Escort M] that day. It was callous and insensitive.’[275]The tribunal concluded that this alleged disclosure did not provide information in the way envisaged by Cavendish. The tribunal was mindful of the observation by Underhill LJ in Kilraine not to be too easily seduced by the distinction in Cavendish between information and allegation.[276]Nevertheless, the tribunal found that the claimant was again only providing her opinion on what she saw as the incorrectness of management judgment in relation to Escort M. It was another example of the claimant considering that her assessment of a situation was better than that of her managers.[277]The tribunal also concluded that although the claimant genuinely believed that the treatment of Escort M by the respondent was a matter of public interest, her belief to that effect was not reasonable.[278]The respondent is plainly engaged in the discharge of a statutory duty when providing SEND transport services and that duty is plainly public in nature. 10.5 Reserved judgment with reasons – rule 61 59 March 2017 However, it is not every aspect of the discharge of that duty which operates in the public interest.[279]The position of Escort M is a case in point. Escort M was engaged by a private third party taxi firm, not by the respondent. The claimant did not know whether Escort M was employed by that third party firm or was engaged under a contract for services. In either event, any of Escort M’s legal rights that may have been infringed were rights personal to Escort M with no wider impact on the public at large.[280]The reason that the respondent decided not to use Escort M in future was that she had failed a DBS check because of a conviction for child neglect. The claimant’s personal view was that the mitigating circumstances surrounding that conviction were such that the respondent had behaved inappropriately when deciding not to use her in future.[281]The most important point is that this was a decision uniquely for SEND Transport Services management to take. It was not a decision for the claimant, as a Transport Assistant, to take. A related point is that there is an obvious tension with Disclosure 1 where the claimant was critical of the respondent for being too lenient in the face of a failure to carry out DBS checks which would have revealed a driving conviction for one of Phoenix Taxis’ drivers. In Disclosure 2, the claimant was critical of the respondent for being too severe in the face of a failed DBS check which revealed a conviction for child neglect.[282]The claimant did not claim at the time these events unfolded, or at any subsequent point, that she had Escort M’s permission to advocate on her behalf. There was no indication in the contemporaneous documentation or in the claimant’s witness statement that the claimant was even aware of Escort M’s own position in relation to her alleged mistreatment by either the taxi firm or by the respondent. There was no indication in the contemporaneous documentation or in the claimant’s witness statement that Escort M was even aware the claimant was lobbying the respondent on her behalf.[283]The tribunal concluded that the claimant was insinuating herself into the private affairs of Escort M and acting as her self-appointed advocate opposite the respondent. The tribunal did not consider that there was any public interest in so doing and, more to the point, the tribunal concluded that the claimant had no reasonable grounds upon which to believe that there was any public interest in the termination of Escort M’s relationship with the third party taxi firm or the respondent’s decision not to use Escort M in future. It was a private matter with no wider ramifications.[284]The tribunal also concluded that there was no reasonable basis for the claimant to believe that Escort M’s circumstances tended to show any of the matters in 10.5 Reserved judgment with reasons – rule 61 60 March 2017 subparagraphs 43B (1) (a)-(f) ERA 1996. In the management phase, the claimant identified this as a situation tending to show a miscarriage of justice. In her particulars of claim (drafted with the benefit of legal advice) it is said that it tended to show a breach of a legal obligation.[285]The legal obligation that the claimant relied upon tribunal was a breach of the statutory right not to be unfairly dismissed in the ERA 1996. However, the claimant had no grounds on which to reasonably believe that Escort M was an employee of the third party taxi firm; had the required period of qualifying service to present a claim of unfair dismissal; or that a dismissal for failing a DBS check due to a conviction for child neglect would involve any substantive unfairness.[286]The tribunal has carefully considered whether, individually or cumulatively, the further iterations of Disclosure 2 (especially that of 20 July 2023 [241-243]) add anything further to what the claimant set out in writing in her document dated 27 February 2023 [117-118]. The tribunal concluded that they do not.[287]In summary, Disclosure 2 does not meet the first, third or fifth of the elements identified in Williams as being necessary to meet the requirements of a qualifying disclosure under section 43B ERA 1996 Disclosure 3 Escorts’ Public Liability Insurance[288]The tribunal concluded that this did not meet the requirements of a qualifying disclosure within the meaning of section 43B ERA 1996. It was therefore not a protected disclosure within the meaning of section 43A ERA 1996.[289]The precise nature of this disclosure only became clear during crossexamination. In her document of 20 July 2023, the claimant said as follows: ‘I followed the London Uber ET case recently and I firmly belief that an ET court would agree that NCC impose such demands and restrictions on escorts that they would be considered employees, not even workers, if an ET case were to be brought to court by an escort. Most of these escorts are paid £20/day (or £10/shift) cash in hand by the taxi/bus driver they are working with. Most of the taxi companies pay this as an additional payment to the driver and he passes it to the escort. Many of the escort are working part-time and supporting families, so they will probably be claiming benefits. It is unlikely that it would be financially viable to carry on in this role if they declared this income, so I suspect many don’t. I am particularly concerned that it is unlikely many, if any, have taken out public liability insurance, or are even aware that they have a legal obligation to do so as they are unlikely to be covered by any other 10.5 Reserved judgment with reasons – rule 61 61 March 2017 insurance if they are self-employed. Several Providers have confirmed this when I have enquired. I have worked as a self-employed Carer for over fifteen years with Leicester, Leicestershire and Sunderland Councils. All three have protocols in place to ensure that anyone engaged in fulfilling care roles on behalf of the council has at least £5M public liability insurance (it may by now be £10M?). I expect that Newcastle Social Services have a similar protocol, but there seems to be no similar protocol within the NCC SEND Transport contract framework.’ (emphasis added).[290]The claimant’s pleaded case was that she had had provided information that she believed showed that there were escorts carrying out SEND transport duties without public liability insurance. In the claimant’s own contemporaneous documentation, and in her evidence during cross examination, it became clear that the basis for this concern was founded on several unsupported assumptions that led her to speculate that escorts might have voided existing public liability insurance that had been taken out by the taxi operators and/or the respondent.[291]Those assumptions included the claimant’s speculation that many of the escorts would not be declaring their income for tax purposes and the further assumption that this would have the effect of voiding any public liability insurance taken out by either the taxi company or the respondent in relation to the work they undertook.[292]When questioned by the tribunal, the claimant was unable to say why she considered any escorts were in fact working illegally (over and above her unevidenced assertion that it would not be financially viable for part-time escorts to declare their income for tax purposes) and why, even if that were the case, that it would have the effect of voiding any public liability insurance policy covering their work. It was no part of the claimant’s case that either the taxi companies or the respondent did not have such policies in place.[293]The claimant also accepted in response to questions from the tribunal that she had seen no actual evidence that any escorts were not declaring their income to HMRC and had no actual evidence that even if this were so that it might have the effect of voiding any insurance policies.[294]As a matter of common sense, the tribunal considered it vanishingly unlikely that an insurance policy covering a risk to members of the public would be voided because of any personal tax irregularities as between any individuals providing escort services to SEND transport users and HMRC. The tribunal considered it equally unlikely that there was any personal obligation on any self-employed escorts to take out their own insurance for £5M or £10M. The respondent’s subsequent enquiries into this allegation confirmed that was not the case. 10.5 Reserved judgment with reasons – rule 61 62 March 2017[295]Looking at the matter from the claimant’s perspective in July 2023 the tribunal concluded that there was no reasonable basis to her allegation that escorts were working without public liability insurance. This was an allegation in the Cavendish sense. There was also no reasonable basis on which the claimant could believe that her allegation tended to show that the respondent was in breach of any legal obligation to have public liability insurance in place because: 295.1. The claimant had no evidential or reasoned basis of any actual failure by any escorts to declare income to HMRC. 295.2. There was no reasoned basis to the claimant’s belief that even if there was any failure to declare income to HMRC that this would void any insurances that were in place. 295.3. The claimant did not allege that there were in fact no insurances in place on the part of the taxi firms or the respondent.[296]Even when looked at only from the claimant’s own perspective, this was nothing more than speculation, assumption and conjecture. Overall conclusion on protected disclosures made by the claimant[297]In the tribunal’s judgment, the claimant made three protected disclosures: 297.1. the information provided to the respondent on 23 December 2022 relating to the failure by Phoenix Taxis to carry out DBS checks and to ensure safeguarding training was undertaken; 297.2. essentially the same information provided to the respondent on 27 February 2023; and 297.3. essentially the same information provided to the respondent on 20 July 2023[298]None of the other alleged disclosures were qualifying disclosures under section 43B ERA 1996. Accordingly, none of the other alleged disclosures were protected disclosures within the meaning of section 43A ERA 1996. Was the claimant subjected to the pleaded detriment in respect of Disclosure 1[299]The pleaded detriment in respect of Disclosure 1 was that the claimant ‘was subjected to constant extensions of her probationary period despite her contract saying N/A under the probation section’. The tribunal has set aside the emotive description of extensions as ‘constant’. 10.5 Reserved judgment with reasons – rule 61 63 March 2017[300]The tribunal’s factual findings at paragraph 103 above reflect the agreed position between the parties that there were extensions to the claimant’s probationary period on in February 2023. The respondent also accepted that the probationary period clause at paragraph 18 had been removed from the claimant’s contract of employment. In other words, there was no dispute that the pleaded detriment occurred as a matter of fact.[301]The tribunal turns to the question of causation.[302]The tribunal has also found as a fact that: 302.1. The removal of the probationary period clause was a mistake made by Employee Services and not a conscious decision by Nicola Jones or anyone else in Transport Services; 302.2. Nicola Jones did not personally remove the probationary period clause from the claimant’s contract; 302.3. The claimant’s trade union representative, Mr Dobson, very properly acknowledged during the meeting of 21 June 2023 that the removal had likely been a mistake; 302.4. The respondent had cogent, objective operational reasons for managing shortcomings in the claimant’s performance; 302.5. The claimant was not managing her workload effectively; 302.6. The claimant was inserting herself in matters that she should have left to more senior colleagues, such as when she got unnecessarily involved with Counsellor Hays on a Sunday evening, and when she championed the cause of Escort M when her time would have been better spent on getting on with her own work; 302.7. The claimant was working out of hours when she had been expressly asked to do so; 302.8. It was entirely appropriate for Nicola Jones to address these performance issues with the claimant; 302.9. Nicola Jones did so in good faith and with the purpose of helping the claimant to meet the requirements of the job she was employed to do; and 302.10. Nicola Jones always acted in good faith. 10.5 Reserved judgment with reasons – rule 61 64 March 2017[303]Applying the test in Fecitt, the tribunal concluded that the reason why the claimant’s probation was extended on two occasions was solely because of genuine, objective and justified concerns that Nicola Jones had with the claimant’s performance and for no other reason. Nicola Jones was not influenced in any way whatsoever by Disclosure 1 when extending the claimant’s probationary period. Had Nicola Jones been aware that the claimant’s contract had no probationary period clause, it would still have been incumbent on her in the discharge of her own responsibilities formally to address those concerns with the claimant.[304]The tribunal is fortified in coming to this conclusion by the entirely professional and constructive way in which the respondent managed the receipt of Disclosure 1. The respondent immediately addressed the problems the claimant had disclosed. The claimant was thanked for bringing this wrongdoing to its attention. Phoenix taxis were warned in accordance with the respondent’s contractual framework arrangements. Phoenix responded positively by recruiting one of the respondent’s own experienced people with relevant regulatory experience which enabled Phoenix to resolve the problems the claimant had identified.[305]The claimant was subsequently asked to be more closely involved in the relationship with Phoenix. She objected to that. However, it was abundantly clear to the tribunal that the respondent acted consistently with its constructive response to the claimant’s Disclosure 1 by appointing the claimant to a position with closer oversight of Phoenix. Differently put, if the respondent had had its feathers ruffled by the Disclosure 1, its decision to put the claimant front and centre of the relationship with Phoenix would have been an unlikely response. Automatic unfair ‘whistleblowing’ dismissal claim[306]The reason for the claimant’s dismissal was by operation of law: her fixed term contract expired without it being renewed. Section 95(1)(b) ERA provides that this amounts to a dismissal for statutory purposes.[307]Such a dismissal does not require any management intervention after the start of the contract for it to take effect. The dismissal is inherent in the limited duration of the contract. This was not a case where, for example, notice was given to terminate the contract on an earlier date than the date of its expiry.[308]In these circumstances, the whistleblowing dismissal case must fail objectively. None of the protected disclosures that were made formed any part of the reason for the claimant’s dismissal. For this case to succeed, it would have to succeed on the basis that the detriment was the failure to extend the fixed term contract 10.5 Reserved judgment with reasons – rule 61 65 March 2017 rather than as a claim based on the reason for the expiry (i.e. dismissal) of the contract term itself.[309]For completeness, had the claimant contended that the detriment in her whistleblowing detriment claim was the failure to extend her fixed term contract the tribunal would not have upheld her claim. The tribunal’s factual findings are clear: the reason why the claimant did not have her fixed term contract extended was because the respondent had no ongoing operational need for either a temporary or permanent Transport Assistant as of the date the claimant’s contract term expired. That was the sole and sufficient reason that the claimant’s employment ended on 31 August 2023.