Mrs J Stringfellow v Chesterfield Royal Hospital NHS Foundation Trust: 2601212/2019

EMPLOYMENT TRIBUNALS

Case No 2601212/2019

Between

Mrs J StringfellowClaimant

Chesterfield Royal Hospital NHS Foundation TrustRespondent

Before

Employment Judge Heap

Members

Mrs L Lowe

Mrs J Bonser

In person for claimant

Ms B Clayton - Counsel for respondent

Date 31 October 2022

JUDGMENT

[1]The complaints of direct discrimination contrary to Section 13 Equality Act 2010 fail and are dismissed.

[2]The complaints of a failure to make reasonable adjustments contrary to Sections 20 and 21 Equality Act 2010 fail and are dismissed.

[3]The complaints of detriment on the grounds of having made a protected disclosure or disclosures contrary to Section 47B Employment Rights Act 1996 fail and are dismissed.

[4]The complaint of unauthorised deductions from wages/breach of contract in relation to a complaint that the Claimant was not awarded injury benefit allowance by the Respondent fails and is dismissed.

REASONS

[1]Following a period of early conciliation which lasted between 27th February 2019 and 27th March 2019, Mrs Jacqueline Stringfellow (hereinafter referred to as “The Claimant”) commenced proceedings against her former employer Chesterfield Royal Hospital NHS Foundation Trust (hereinafter referred to as “The Respondent”) advancing the following complaints:• Direct discrimination contrary to Section 13 Equality Act 2010;

• Failure to make reasonable adjustments contrary to Sections 20 and 21 Equality Act 2010;

• Detriment on the grounds of having made a protected disclosure contrary to Section 47B Employment Rights Act 1996; and

• Unauthorised deductions from wages/breach of contract in relation to a complaint that she was not awarded injury benefit allowance by the Respondent.

[2]The Respondent resisted and continues to resist all of those claims in their entirety albeit it was conceded that the Claimant was at all material times a disabled person within the meaning of Section 6 Equality Act 2010.

[3]At the time that the Claimant commenced proceedings, she was represented by solicitors. However, they ceased to act partway through the proceedings and at the time that the matter came before us for determination the Claimant was acting as a litigant in person. That was with the exception of crossexamination of certain witnesses on behalf of the Respondent where the Claimant was assisted by her son, Mr. C Stringfellow, as a lay representative.

[4]During the time that the Claimant was legally represented the claim was the subject of a Preliminary hearing before Employment Judge Broughton on 27th September 2019. At that point, Employment Judge Broughton identified the issues in the claim as being as follows: “Section 43B – public interest disclosure 4. The Claimant relies upon two disclosures both of which are grievances; a) 29 November 2017 grievance referred to at paragraph 4 of the particulars of claim which for the purposes of this Order I shall refer to as Disclosure 1 and b) grievance of 31 March 2018 set out at paragraph 9 of the particulars of claim which I shall refer to as Disclosure 2. It was agreed between the parties that the issues are as follows: - a) Was there a disclosure of information by the Claimant? b) Did the Claimant have a reasonable belief when making the disclosure that it tended to show one or more of the following: -• That the Respondent failed, was failing or was likely to fail to comply with any legal obligation to which the Respondent was subject?

• That the health or safety of any individual has been, is being or was likely to be endangered? c) Did the Claimant have a reasonable belief that the disclosures were in the public interest? d) Were the disclosures protected on the basis that they were made to the Claimant’s employer under Section 43C(i)(a) ERA? e) On the grounds that the Claimant had made Disclosure 1 did the Respondent subject the Claimant to the detrimental treatment alleged in paragraph 42(a) of the particulars of claim, namely that the Claimant was verbally abused and bullied by her line manager on 30 March 2018? f) Was the Claimant subjected to the detriments set out at paragraph 42(a) to (e) inclusive on the grounds that the Claimant had made the Disclosures 1 and 2? Section 13 - direct disability discrimination There are two claims: Injury Benefit Allowance- delay The Claimant complains about an alleged delay in dealing with her application and it is agreed that the issues are as follows: a) Did the Respondent delay in dealing with the Claimant’s injury benefit allowance which was submitted on 22 April 2018? b) If there was a delay was that treatment less favourable treatment i.e. did the Respondent treat the Claimant as alleged less favourably than it treated or would treat others (“comparators”) in not materially different circumstances? c) The Claimant relies on a hypothetical comparator. d) If so was this because of the Claimant’s disability?

[6]Ms Macey1 when asked how the Claimant defines what is a delay for these purposes, stated that the Claimant is not alleging that the injury 1 The Claimant’s then solicitor. benefit application would have been dealt with in other cases within any particular time frame.

[7]In terms of a hypothetical comparator Ms Macey confirmed that the hypothetical comparator the Claimant relies upon is a non-disabled employee off work for the same duration of time. Injury Benefit Allowance – Rejection

[8]It is not in dispute that the Respondent rejected the Claimant’s application for injury benefit allowance on 30 May. The issues agreed between the parties are: a) Was that treatment less favourable treatment? i.e. did the Respondent treat the Claimant as alleged less favourably than it treated or would treat others (“comparators”) in not materially different circumstances? b) The Claimant relies on a hypothetical comparator. c) If so, was this because of the Claimant’s disability?

[9]The Claimant’s disability is alleged to be PTSD and general stress and anxiety2. Sections 21 – Failure to make reasonable adjustments It is agreed between the parties that the issues are as follows:

[11]Common to all the section 21 claims: Did the Respondent know or could it have been reasonably expected to know at the material time that the Claimant had a disability and was likely to be placed at a substantial disadvantage?

[12]The Claimant relies upon the following PCP’s and substantial disadvantage: -12.1 Failure to arrange a psychological assessment: para 40

(a) of the claim a) Did the Respondent have a practice of not implementing occupational health recommendations in a timely manner or at all? b) Was the Claimant put at a substantial disadvantage in comparison with persons who are not disabled in that not having the psychological assessment meant that she did not have the psychological treatment as a result? 2 As we have already touched upon above by the time that the matter came before us the Respondent had conceded that the Claimant was disabled by virtue of those conditions at all material times. c) Were there steps that were not taken that could have been taken by the Respondent to avoid such disadvantage? The burden of proof does not lie on the Claimant; however, it is helpful to know what steps the Claimant alleges should have been taken and the Claimant alleges a reasonable adjustment would have been a prompt implementation of the recommendations in the occupational health report.

12.2 Failure to maintain regular contract during her sick leave: para 40

(b) of the claim a) Did the Respondent have a practice of not maintaining regular contact with employees on long term sick leave: - b) Was the Claimant put at a substantial disadvantage in comparison with persons who are not disabled namely an increase in her stress levels. c) Were there steps that were not taken that could have been taken by the Respondent to avoid such disadvantage? The burden of proof does not lie on the Claimant however it is helpful to know what steps the Claimant alleges should have been taken and the Claimant alleges that a reasonable adjustment would have been regular contact with the Claimant.

12.3 Failure to exercise their discretion to award Injury Benefit Allowance or extend contractual sick pay: para 40

(c) of the claim: a) Did the Claimant have a practice of failing to award injury benefit allowance or extend contractual sick pay after a set period of time? b) Was the Claimant put at a substantial disadvantage in comparison with persons who are not disabled namely stress and financial anxiety. c) Were there steps that were not taken that could have been taken by the Respondent to avoid such disadvantage? The burden of proof does not lie on the Claimant; however it is helpful to know what steps the Claimant alleges should have been taken and the Claimant alleges a reasonable adjustment would have been to award injury benefit allowance and/or extend contractual sick pay. The parties are referred to the guidance from the Court of Appeal in O’Hanlon v Revenue and Customs Commissioners

2007 ICR 1359

, CA.

12.4 Failure to consider the Claimant for EMDR treatment as requested or respond to her request in a timely manner: para 40

(d) of the claim: a) Did the Respondent have a practice of not paying for EMDR treatment at all or in a timely fashion? b) Was the Claimant put at a substantial disadvantage in comparison with persons who are not disabled namely suffering anxiety and delay in receiving NHS EMDR treatment. c) Were there steps that were not taken that could have been taken by the Respondent to avoid such disadvantage? The burden of proof does not lie on the Claimant.

12.5 Failure to forward the Claimant’s ill health retirement forms in a timely and reasonable manner: para 40

(e) of the claim: a) Did the Respondent have a practice of not providing ill health retirement forms in a timely and reasonable manner? b) Was the Claimant put at a substantial disadvantage in comparison with persons who are not disabled? c) Were there steps that were not taken that could have been taken by the Respondent to avoid such disadvantage? The burden of proof does not lie on the Claimant; however, it is helpful to know what steps the Claimant alleges should have been taken and the Claimant alleges a reasonable adjustment would have been to provide the forms in a timely and reasonable manner.

12.6 Failure to comply with the sick pay policy and reinstate Claimant’s sick pay automatically after 12 months: para 40

(f) of the claim: a) Did the Respondent have a practice of failing to adhere to their policy to automatically reinstate sick pay when it was due in accordance with their sick pay policy? d) Was the Claimant put at a substantial disadvantage in comparison with persons who are not disabled namely suffering stress. d) Were there steps that were not taken that could have been taken by the Respondent to avoid such disadvantage? The burden of proof does not lie on the Claimant; however, it is helpful to know what steps the Claimant alleges should have been taken and the Claimant alleges that a reasonable adjustment to automatically reinstate sick pay when it was due. Unlawful deduction/breach of contract claim

claim:

[15]The Claimant’s case is that Injury Benefit Allowance falls within the statutory definition of wages within Section 27 of the Employment Rights Act 1996 and that the failure to pay this amounted to a deduction of wages under section 13 ERA.

[16]The Claimant was unable to identify the breach of the employment contract on which the Claimant relies for the breach of contract claim.” 5. As identified by Employment Judge Broughton, the Claimant’s representative at that hearing was unable to identify the contractual term upon which reliance was placed for the purposes of the complaint of breach of contract. Further and better particulars of that aspect of the claim were ordered to be provided and the Claimant later identified that she was relying upon the NHS Terms and Conditions of Service Handbook and particularly section 22 of that Handbook (see pages 78(2) and 78(3) of the hearing bundle). 6. There was a further Preliminary hearing before Employment Judge Butler on 9th April 2020. That had been due to be a hearing which dealt with an application to amend the claim which the Claimant had made by that time and also an application made by the Respondent to strike out the claim on the basis of a failure to comply with Orders which had been made by Employment Judge Broughton at the earlier Preliminary hearing. That hearing could not proceed as an open Preliminary hearing given that by that point the United Kingdom was in the early stages of the first Covid pandemic lockdown and so it dealt only with case management. 7. In respect of the amendment application, nothing changed the face of the issues which had already been identified by Employment Judge Broughton and the Respondent later determined not to proceed with their strike out application. We therefore do not need to say any more about the events of that particular Preliminary hearing. THE HEARING 8. The matter first came before us for hearing on 30th November 2020. It had been allocated 7 days of hearing time. However, on the penultimate day of the hearing, the Claimant became unwell as a result of continued and clear difficulties which she experiences in relation to her mental health and which the Respondent concedes amounts to a disability within the meaning of Section 6 Equality Act 2010. The Claimant applied for us to postpone the remainder of the hearing time and we accordingly did so with the helpful and sensible agreement of the Respondent. Orders were later made, which the Claimant complied with, to produce medical evidence as to her fitness to attend a resumed hearing and any adjustments that would be required to enable her to do so. 9. This Employment Judge then held a further telephone Preliminary hearing on 14th May 2021 with a view to listing the claim for further days of hearing time. Regrettably, as a result of availability issues for the Tribunal and Counsel for the Respondent we were not able to resume the hearing until 6th June 2022. The hearing was listed at that stage for a further 7 days of hearing time. 10. We recognise that for all parties it has been far from ideal that we have had such a lengthy gap between the first and second tranches of hearing time. That was not least because we were already considering events, as we shall come to, from some number of years ago. Whilst that position is regrettable, it is ultimately nobody’s fault and we have simply had to proceed as best we could to ensure that the parties had a fair hearing. 11. There were further applications to adjourn made by the Claimant during the second part of hearing time. On 14th June 2022 there was an application for an adjournment partway through one of the hearing days when the Claimant’s son, who was at that point dealing with cross-examination on her behalf, fell ill with food poisoning and for a further two days of hearing time when the Claimant’s mental health was proving difficult for her and when she also wanted to take time to seek some legal advice. Where those applications were resisted by the Respondent oral reasons for our decision to grant them were provided at the time. Neither party has asked for those reasons to be included within this decision and so we need say no more about them. 12. In respect of the issue of legal advice which formed the basis of part of one of the applications to adjourn, as we had remarked to the Claimant on a number of occasions it was sometimes not entirely clear as to whether she fully understood the case which had been advanced by her then solicitors on her behalf and she often found it difficult to put a positive case to the Respondent about why she said that she was treated in the way of which she complains. 13. In this regard the Claimant would often conclude cross-examination, as would her son, without putting the case which she was advancing that she had been treated as she had because she had made protected disclosures and/or because she was disabled by reason of her mental health. Those matters had on occasion to be put by the Tribunal on her behalf to the relevant witnesses of the Respondent. We do not make any criticism of the Claimant or her son for that position but it is fair to say that we became concerned that she may not fully have understood the claim which had been advanced on her behalf by her then solicitors. That was particularly the case when the Claimant had on one occasion remarked that she just wanted “to know why” the Respondent had treated her in the way of which she complains rather than asserting that it was because of disability or that protected disclosures had played any part in the matter. 14. We therefore adjourned over a long weekend to give the Claimant the opportunity to review the list of issues which had been set out by Employment Judge Broughton at the first Preliminary hearing – and which we frequently brought her back to – in order to determine if that was truly the case that she was seeking to advance and to have the opportunity, if she wished to do so, to take some legal advice. 15. When we reconvened the hearing the Claimant confirmed that the claim as set out by her former solicitors remained her case as set out in the list of issues and we therefore proceeded on that basis. 16. We acknowledge that the Claimant has been and remains very unwell on account of her mental health. Not only was there medical evidence to that effect but it was plain from her presentation before us. We therefore made a number of adjustments for the Claimant to assist her in the course of the hearing. Those have included giving the Claimant breaks when required; allowing the Claimant’s son to take over cross-examination of certain witnesses when the Claimant did not feel well enough to continue or would find it too difficult; adjourning the hearing when the Claimant became unwell or at times when she needed to reflect and consider her case and assisting her in putting her case generally to the Respondent’s witnesses in respect of matters which she had not put in cross-examination.

THE HEARING

[17]By the time that the second tranche of hearing dates had come around the Claimant had provided medical evidence as to her fitness to resume the proceedings and the question of whether any further adjustments over and above those which we had already implemented were necessary.

[18]One of the adjustments recommended by the Claimant’s General Practitioner was that the order of the Respondent’s witnesses should not change where possible so that the Claimant was able to follow who she would be crossexamining next. Unfortunately, whilst such arrangements were originally put into place we were unable to stick to a rigid timetable in that regard because of the adjournments which we have already referred to above. That meant that because of availability issues, some of the witnesses had to be taken out of order. That was regrettable but unfortunately, given the circumstances, somewhat unavoidable.

[19]We should say in that regard that despite the lengthy hearing time that we had, as a result of the various adjournments, whilst we were able to conclude the evidence, we were unable to conclude submissions. Whilst mindful of guidance from the Employment Appeal Tribunal in relation to the issue of written submissions, both parties expressed a preference to deal with matters in that way rather than having to come back for a further day of hearing time, which might again result in a substantial delay. We received detailed and helpful submissions therefore from both the Claimant and the Respondent.

[20]Finally, the Judge apologises to the parties for the delay in this Judgment being sent to them. That was caused by a combination of other Judicial work, the Judge’s absence from the Tribunal between mid July and the first week in September and time for the non-legal members to consider a draft of the Judgment. The patience of both parties has been much appreciated. WITNESSES

[21]On behalf of the Claimant, we heard from her on her own account.

[22]On behalf of the Respondent we heard from the following witnesses:• Samantha Wain - Senior Matron who investigated the Claimant’s first grievance and was the subject of her second grievance.

• Kaye Smedley – one of the Claimant’s line managers and the Matron responsible for conducting the Claimant’s return to work interview which resulted in her second grievance.

• Leanne Featherstone - Human Resources (“HR”) officer.

• Michael Hedland - The Claimant’s point of contact in April 2018.

• Gill Stevens - Head of HR and the appeal officer in respect of the Claimant’s second grievance.

• Gary Durrant - Investigating officer in relation to the Claimant’s second grievance.

• Becky Sutton - A member of the appeal panel for the Claimant’s second grievance.

• Jamie Temlett – one of the Claimant’s points of contact.

• Vicky Reddish - Human Resources officer who took over responsibility for the Claimant’s case from Leanne Featherstone on her return to work and who dealt with the Claimant’s application for ill-heath retirement.

• Rachel Whyman - The appeal officer in relation to the Claimant’s second grievance.

• Sue Wootton - Matron and the Claimant’s line manager who was the subject of two grievances raised by the Claimant.

[23]We make our observations in relation to matters of credibility in respect of each of the witnesses from whom we have heard below. In addition to the witness evidence that we have heard, we have also paid careful reference to documentation to which we have been taken during the course of the proceedings and to the written submissions made by the Claimant and Ms Clayton on behalf of the Respondent.

CREDIBILITY

[24]One issue that has invariably informed our findings of fact in the claim which is now before us is the matter of credibility and therefore we say a word about that now.

[25]We begin with our assessment of the Claimant. Although we have no doubt whatsoever that the Claimant has a firm and strident view that she has been discriminated against and generally treated unfairly in respect of the matters of which she complains, that has to be considered against the background that it is clear that the Claimant sees everything through the prism of conspiracy and that everything that the Respondent did and does is an act of hostility towards her and calculated to cause her harm.

[26]Whilst we accept that the Claimant was seeking to give us an honest and accurate account of events, that has been coloured by the clear animosity that she now feels towards the Respondent as a result of the treatment which she perceives herself to have received at its hands and we considered that that has caused the Claimant, albeit unconsciously, to give a more negative and exaggerated account that might otherwise be the case if matters were looked at objectively rather than subjectively.

[27]We make no criticism of the Claimant for that position. It is not an unusual feature of litigation where one party or the other feels badly wronged, but we have to bear in mind in considering the Claimant’s evidence that it does not come at all from a realistically objective standpoint.

[28]We turn then to the Respondent’s witnesses. On the whole we found them to be candid, open to the possibility of an alternative point of view and accepting that, in some cases, things could and should have been done better. That was particularly the case in relation to the evidence of Gill Stevens, who we considered to be very credible and who in our view gave an honest and sensible account of her involvement in events.

[29]There were some witnesses who did have a lack of recollection in relation to certain issues or events involved in the claim. However, we do take into account in that regard that the matters upon which those witnesses were being asked to comment in some considerable detail in cross-examination by the Claimant or her son are ones which occurred some number of years previously. They would not necessarily have been remarkable events at the time, particularly in relation to human resources professionals who were being asked about actions that took place a significant number of years ago and having regard to the fact that the Claimant was not the only case that they were responsible for dealing with. We do not find it unusual that for those witnesses who did have a difficulty with recollection that was anything unusual or out of the ordinary given the passage of time and we did not consider this affected their credibility as witnesses.

[30]We should observe that we do consider it more likely than not that Sue Wootton in her evidence sought to downplay the events of a meeting of 30th March 2019, the details of which we shall come to in due course. That was a difficult meeting and one in respect of which the Claimant has been highly critical of Ms Wootton. It was abundantly clear that Ms Wootton found giving evidence emotionally very difficult, not least as the Claimant effectively viewed her as responsible for almost everything that happened that led to her evidential dismissal. Giving evidence was difficult for Ms Wootton and we would observe that, in the first instance, the Respondent had indicated that they did not intend to call her because of the difficulties that she would encounter in this regard. Similarly, as we shall come to the Claimant’s own recollections of that meeting had clearly changed over time with the downplaying of the involvement of her husband in the events of that particular incident. In the same way we consider that Mrs Wootton has likely adopted a diametrically opposed view such as to downplay her own actions. That is not unusual, particularly where someone is facing significant criticism about their actions, and we did not view that that coloured the remainder of her evidence. For example, while she contended that she did not shout on 30th March 2018 we consider that it is more than likely that she raised her voice towards Mr. Stringfellow in what the Claimant perceives to have been an attack directed at her. However, as we have already observed it is not unusual when faced with harsh criticism that a witness may in their mind and their evidence downplay their own part in the events in question and we do not consider that that is such to affect the credibility of the other evidence that Mrs Wootton gave to us.

[31]Therefore, unless we have said otherwise, generally speaking we preferred the evidence of the Respondent’s witnesses to that of the Claimant. In all events, as shall come to, in many instances the documents effectively speak for themselves.

THE LAW

[32]Before turning to our findings of fact, we remind ourselves of the law which we are required to apply to those facts as we have found them to be below. Discrimination complaints

[33]The Claimant’s discrimination complaints all fall to be determined under the Equality Act 2010 (“EqA 2010) and, particularly, with reference to Sections 13, 20, 21 and 39.

[34]Section 39 EqA 2010 provides for protection from discrimination in the work arena and provides as follows: “(1) An employer (A) must not discriminate against a person (B)— (a)in the arrangements A makes for deciding to whom to offer employment; (b)as to the terms on which A offers B employment; (c)by not offering B employment. (2) An employer (A) must not discriminate against an employee of A's (B)— (a)as to B's terms of employment; (b)in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; (c)by dismissing B; (d)by subjecting B to any other detriment. (3)An employer (A) must not victimise a person (B)— (a)in the arrangements A makes for deciding to whom to offer employment; (b)as to the terms on which A offers B employment; (c)by not offering B employment. (4)An employer (A) must not victimise an employee of A's (B)— (a)as to B's terms of employment; (b)in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for any other benefit, facility or service; (c)by dismissing B; (d)by subjecting B to any other detriment. (5)A duty to make reasonable adjustments applies to an employer. (6)Subsection (1)(b), so far as relating to sex or pregnancy and maternity, does not apply to a term that relates to pay— (a)unless, were B to accept the offer, an equality clause or rule would have effect in relation to the term, or (b)if paragraph (a) does not apply, except in so far as making an offer on terms including that term amounts to a contravention of subsection (1)(b) by virtue of section 13, 14 or 18. (7)In subsections (2)(c) and (4)(c), the reference to dismissing B includes a reference to the termination of B's employment— (a)by the expiry of a period (including a period expiring by reference to an event or circumstance); (b)by an act of B's (including giving notice) in circumstances such that B is entitled, because of A's conduct, to terminate the employment without notice. (8)Subsection (7)(a) does not apply if, immediately after the termination, the employment is renewed on the same terms”. The EHRC Code

[35]When considering complaints of discrimination, a Tribunal is required to pay reference to the Equality & Human Rights Commission Code of Practice on Employment (2011) (“The Code”) to the extent that any part of it appears relevant to the questions arising in the proceedings before them. Direct Discrimination

[36]Section 13 EqA 2010 provides that: “A person(a) (A) discriminates against another

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

[37]It is for a Claimant in a complaint of direct discrimination to prove the facts from which the Employment Tribunal could conclude, in the absence of an adequate non-discriminatory explanation from the employer, that the employer committed an unlawful act of discrimination (Wong v Igen Ltd

[2005] ICR 931

[38]If the Claimant proves such facts, the burden of proof will shift to the employer to show that there is a non-discriminatory explanation for the treatment complained of. If such facts are not proven, the burden of proof will not shift.

[39]In deciding whether an employer has treated a person less favourably, a comparison will in the vast majority of cases be made with how they have treated or would treat other persons without the same protected characteristic in the same or similar circumstances. Such a comparator may be an actual comparator whose circumstances must not be materially different from that of the Claimant (with the exception of the protected characteristic relied upon) or a hypothetical comparator.

[40]Guidance as to the shifting burden of proof can be taken from that provided by Mummery LJ in Madarassy v Nomuna International Plc

[2007] IRLR 246

: “’Could conclude’ must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory ‘absence of an adequate explanation’ at this stage the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like and available evidence of the reasons for the differential treatment. The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the tribunal then moves to the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate nondiscriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim.”

[41]The protected characteristic need only be a cause of the less favourable treatment but need not be the only or even the main cause. A Tribunal when considering the cause of any less favourable treatment will be required to consider that question having regard not only to cases where the grounds of the treatment are inherently obvious, but also those where there is a discriminatory motivation (whether conscious or unconscious) at play (see Amnesty International v Ahmed

[2009] ICR 1450

). Failure to make reasonable adjustments – Sections 20 and 21 EqA 2010

[42]Section 20 EqA 2010 provides that: “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)The second requirement is a requirement, where a physical feature 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. (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 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)In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to— (a)removing the physical feature in question, (b)altering it, or (c)providing a reasonable means of avoiding it. (10)A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to— (a)a feature arising from the design or construction of a building, (b)a feature of an approach to, exit from or access to a building, (c)a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or (d)any other physical element or quality. (11)A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service. (12)A reference in this section or an applicable Schedule to chattels is to be read, in relation to Scotland, as a reference to moveable property. (13)The applicable Schedule is, in relation to the Part of this Act specified in the first column of the Table, the Schedule specified in the second column”.

[43]Section 21 provides that: “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. (3)A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.”

[44]It will therefore amount to discrimination for an employer to fail to comply with a duty to make reasonable adjustments imposed upon them in relation to that disabled person (paragraph 6.4 of The Code).

[45]However, the duty to make reasonable adjustments will only arise where a disabled person is placed at a substantial disadvantage by:• An employer's provision, criterion or practice (“PCP”);

• A physical feature of the employer's premises; or

• An employer's failure to provide an auxiliary aid.

[46]Where the claim relates to a PCP, this "should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions" imposed by the employer (paragraph 6.10 of The Code).

[47]Matters resulting from ineptitude or oversight on the part of the employer will not, however, amount to a PCP (see Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley UK EAT 0417/11).

[48]The duty to make reasonable adjustments only arises insofar as an employer is required to take such steps as it is reasonable to take (our emphasis) in order to avoid the substantial disadvantage to the disabled person. A Tribunal is required to take into account matters such as whether the adjustment would have ameliorated the disabled person's disadvantage, the cost of the adjustment in the light of the employer's financial resources, and the disruption that the adjustment would have had on the employer's activities. Complaints pursuant Section 47B Employment Rights Act 1996

[49]In any claim based upon “whistleblowing” (whether for detriment or dismissal) a Claimant is required to show that firstly they have made a “protected disclosure”.

[50]That in turn brings us to the definition of a protected disclosure, which is contained in Section 43A Employment Rights Act 1996 and which provides as follows: “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.”

[51]Section 43B provides as follows: “In this part, a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure is 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 and 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 one of the preceding paragraphs has been, or is likely to be deliberately concealed. For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is of the United Kingdom or of any other country or territory. A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it. A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.”

[52]An essential requirement of a disclosure which qualifies for protection is that there is a disclosure of information. A disclosure is more than merely a communication and information is more than simply making an allegation or a statement of position. The worker making the disclosure must actually convey facts, even if those facts are already known to the recipient (See Cavendish Munro Professional Risks Management Ltd v Geluld

[2010] IRLR 38

(EAT)) rather than merely an allegation or, indeed, an expression of their own opinion or state of mind (See Goode v Marks & Spencer Plc

UKEAT/0442/09

[53]A disclosure need not be embodied in one communication and it is possible, depending upon the content and nature of those communications, for more than one communication to cumulatively amount to a qualifying disclosure, even though each individual communication is not such a disclosure on its own (Norbrook Laboratories (GB) Ltd v Shaw

UKEAT/0150/13

[54]It is not necessary for a worker to prove that the facts or allegations disclosed are true. Provided that the worker subjectively believes that the relevant failure has occurred or is likely to occur and their belief is objectively reasonable, it matters not if that belief subsequently turns out to be incorrect (See Babula v Waltham Forest College

[2007] IRLR 346

(CA).

[55]A worker must establish that in making their disclosure they had a reasonable belief that the disclosure showed or tended to show that one or more of the relevant failures had occurred, was occurring or was likely to occur. That reasonable belief relates to the belief of the individual making the disclosure in the accuracy of the information about which he is making it. The question is not one of the reasonable employee/worker and what they would have believed, but of the reasonableness of what the worker himself believed.

[56]However, there needs to be more than mere suspicion or unsubstantiated rumours and there needs to be something tangible to which a worker/employee can point to show that their belief was reasonable.

[57]The questions for a Tribunal in considering the question of whether a protected disclosure has been made are therefore firstly, whether the Claimant disclosed “information”; secondly, if so, did he or she believe that that information was in the public interest and tended to show one of the relevant failings contained in Section 43B Employment Rights Act 1996, and, if so, was that belief reasonable.

[58]If a worker can demonstrate that they have made a protected disclosure, then in order to succeed in a complaint under Section 47B Employment Rights Act 1996, they must also demonstrate that they have suffered “detriment”. In this regard, Section 47B(1) Employment Rights Act 1996 provides as follows: ”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.”

[59]A worker must therefore prove that they have made a protected disclosure and, further, that there has been detrimental treatment. The term “detriment" is not defined within the Employment Rights Act 1996 but guidance can be taken from discrimination authorities and, particularly, from Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

. In this regard, for action or inaction to be considered a detriment, a Tribunal must consider if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work. However, an "unjustified sense of grievance" is not enough to amount to a detriment.

[60]If the worker satisfies the Tribunal that he has both made a protected disclosure and suffered detriment, the employer then has the burden of proving the reason for the treatment pursuant to the provisions of Section 48(2) Employment Rights Act 1996. If the employer fails to prove an admissible reason for the treatment, a Tribunal must conclude that it is because of the protected disclosure.

[61]In a case of a detriment, a Tribunal must be satisfied that the detriment was "on the ground that the worker has made a protected disclosure" and there must be found to be a causative link between the protected disclosure and the reason for the treatment. The test to be considered if whether "the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment" of the Claimant (see NHS Manchester v Fecitt & Others

[2012] IRLR 64

). It follows that unless the individual who is said to subject the worker to detriment knows that the employee/worker has made a protected disclosure, their decision cannot be said to have been materially influenced by it (see also Anastasiou v Western Union Payment Services UK

EAT/0135/13/LA

). Unauthorised deduction from wages – Section 13 Employment Rights Act 1996

[62]Section 13 Employment Right Act 1996 provides for the protection of wages of a worker as follows:- “13 Right not to suffer unauthorised deductions.(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.

(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.”

[63]It follows from that that if there is a deduction made from the wages of a worker from that which are properly payable to them, that will be an unauthorised deduction from wages unless the provisions of Section 13 are satisfied by the employer or, otherwise, if the deduction is an excepted deduction within the meaning of Section 14 Employment Rights Act 1996. Breach of contract

[64]Employment Tribunals are seized of jurisdiction to consider such complaints under the provisions of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. It is necessary to identify the express or implied term of the contract which is relied upon, determine whether that term has been breached and, if so, consider what remedy would put the Claimant back in the position that they would have been in but for the breach.

FINDINGS OF FACT

[65]We ask the parties to note that we have only made findings of fact where they are necessary in order to deal with the issues in the claim. We have not, therefore, made findings on each and every matter where the parties are in dispute with each other and have confined our findings to those which are relevant to the issues identified by Employment Judge Broughton and which we have set out above. Commencement of the Claimant’s employment

[66]The Claimant commenced employment with the Respondent on 21st November 2005 as a Healthcare Assistant (“HCA”). She remained in that post until 4th March 2019 when her employment was terminated by the Respondent by reason of capability. That followed, as we shall come to, after a protracted period of ill health absence caused by the Claimant’s mental health. No complaint is made in these proceedings about that dismissal.

[67]The Claimant was employed under a contract of employment dated 26th May 2016 (see pages 209 to 217 of the hearing bundle). That set out the relevant provisions in relation to sickness absence and entitlement to pay. It provided that for those with over five years’ service (as the Claimant had) they would be entitled to full pay for six months and then a further six months of half pay. After that time, there was entitlement to statutory sick pay (“SSP”) only.

[68]The Claimant’s contract of employment also referred a number of the Respondent’s policies and procedures, including their capability policy, and made plain that the contract of employment was in accordance with the NHS Terms and Conditions of Service Handbook and that employees were accordingly bound by those terms and conditions (see page 216 of the hearing bundle). The Claimant’s contract of employment and the Terms and Conditions of Service Handbook constituted the entire agreement between the parties.

[69]The Claimant was based within the Accident and Emergency Department (“A&E”) where she was line managed by two matrons. They were at the relevant time with which we are concerned Matron Kaye Smedley and Matron Sue Wootton. Until the events which ultimately triggered a decline in the Claimant’s mental health and resulted in her ill health absence, we are satisfied that she had a good and cordial relationship with both of them.

[70]We are also satisfied that the Claimant at all times very much enjoyed her job and was dedicated to it. There were no issues in relation to her performance or conduct at any time. However, during the course of her employment, the Claimant had to deal with more than one distressing incident which clearly impacted her. We do not set out the details because it is unnecessary to do so but suffice it to say it is unsurprising that the Claimant was affected by such incidents and historically she has suffered with her mental health prior to the events which we are concerned with in this claim. On at least one occasion the Claimant was commended for how professionally she had dealt with distressing incidents. Unsecured documentation incidents

[71]Between 29th September 2017 and 6th October 2017, the Claimant was absent from work with a viral illness. Upon a return to work from It would normally be the case that the relevant matron (in this case Sue Wootton) would have conducted a return to work meeting. That would involve looking at a Fit Note if one had been submitted. It was therefore expected following the Claimant’s return from ill health absence on this occasion that there would be a return to work meeting. However, as it would not always be the case that the matron and the person who had been absent would be on shift together on the day that they returned to work, return to work interviews were when necessary also conducted by the Ward Sisters. So that the Ward Sisters had access to the necessary paperwork, including Fit Notes, the way in which the Respondent dealt with matters at that time was to leave that documentation within a folder – called the Off Duty folder - for the Ward Sister to collect and he or she would then undertake the relevant return to work interview. That is what happened at the point that the Claimant returned to work in October 2017 and her Fit Note had been left along with Fit Notes of a small number of other members of staff in the off duty file for the relevant Ward Sister to collect.

[72]Upon her return to work, one of the other HCA’s on duty informed the Claimant that her Fit Note had been left in the off duty file and it became apparent that that had not been placed securely and could potentially have been accessed by other people. The Claimant became concerned that somebody could have seen her Fit Note and that her personal data might be taken and that someone might attempt to steal her identity. The Claimant spoke to the Night Sister on shift about the matter. It does not appear that a return to work meeting took place on this occasion.

[73]On 27th November 2017 the Claimant again became aware of personal documents relating to her being kept in the off duty folder. She moved the documents from the off duty file and locked them away in her locker. She informed the Matron on the nightshift of what had occurred and we accept that she spoke to Sue Wootton about it at a later point.

[74]We accept that Sue Wootton acknowledged that she had been responsible for what had happened and that she apologised to the Claimant about it. A Datix report was also made by Sue Wootton to report the incident. A Datix report is an incident reporting form which the Matrons need to complete when something, either relating to a member of staff or a patient, occurs. That is done electronically, and the matter then needs to be concluded and closed. The Datix report was taken from the Claimant’s own words and the relevant parts said this (see page 247(1) of the hearing bundle): “I STARTED MY NIGHT SHIFT 27/11/17 TO FIND OUT THAT PERSONAL INFORMATION AND DOCUMENTS HAD BEEN LEFT IN THE OFF DUTY FILE UNSECURED FOR ANYONE TO READ AND ACCESS. 2 SICK NOTES MY NI NUMBER, NAME ADDRESS, DOB GP DETAILS, INFORMATION OF SICKNESS. REMOVED INFORMATION FROM FOLDER AND PUT UNDER LOCK AND KEY, INFORMED NIGHT MATRON, REPORTED TO SENIOR MATRON FOLLOWING MORNING.” The Claimant’s first grievance

[75]On 29th November 2017, the Claimant made a written complaint about what had happened in relation to her Fit Note and personal information, which she addressed to Senior Matron Samantha Wain (see page 252 of the hearing bundle). Samantha Wain was at the time the line manager of both Matron Smedley and Matron Wootton and the Claimant had already made her aware of the incident prior to submitting her grievance. Given that this letter is said by the Claimant to be a protected disclosure, it is worth setting out the content in full.

[76]The letter said this: “I would like to make an official complaint relating to the storage and accessibility of my personal information. Having worked for CRH3 for almost 14 years as a Health Care Assistant, I recently returned to work on the 23rd October after a period of sickness, followed by taking some of my statutory holidays, I was informed by HCA F4 that a collection of our and other people’s personal data including back to work forms and sick notes were being held in the Off Duty File which is accessible to any member of staff to see. I have been given permission by DF and SN RN5 to give you their names as they were the other members of staff who also had their details stored in this way. I raised my concerns with the NIC6 that the paperwork was being stored in the Off Duty File in this way, which is where it was left for the remainder of my shift. My understanding is that storing my personal, private and confidential details in such a way was/is being stored in a manner which contravenes the Data Protection Act, the Hospitals Confidentiality Policy and breaches section 8 of the European Court of Human Rights right to privacy. Having pointed out the problem at the time, I then planned to discuss the matter face to face with my Matron once our shifts coincide, however, due to the serious nature of this breach I am making this formal complaint. On the 27th November 2017 I went to work on a Long Night Shift only to 3 An abbreviation for the Respondent. 4 We have anonymised the name of the HCA in question because their identity is not relevant to these proceedings. 5 Again we have anonymised the name of the Senior Nurse in question because their identity is not relevant to these proceedings. 6 An abbreviation for Nurse in charge. find that my documents and personal information had been left in the Off Duty File for a second time. I immediately text messaged Matron Robinson 7 at home to inform her that I had locked my own information away for security, she said that she knew nothing about it and to put my paperwork in the Matrons office. On my way out in the morning I text messaged her to inform her of my intention to raise a formal complaint. I had made the decision to remove my documents to safe storage to avoid any opportunity of identity theft and/or information misuse. I then spoke to Matron Bennett to ask for advice and the whole matter was making me anxious, once I had explained what had happened she suggested that I should report the breach to yourself as Senior Matron. This matter has affected my confidence and trust in the management as this has now occurred on two occasions. Please can you thoroughly investigate this matter and advise me of your findings and proposed resolution. I have been advised that due to the serious nature of this matter that I should take further advice and await your response”.

[77]We understand that separately the Claimant is pursuing a claim for personal injury via the courts in relation to these particular incidents.

[78]Samantha Wain acknowledged receipt of the Claimant’s complaint on 5th December 2017 (see page 252(1) of the hearing bundle). She confirmed that she had also “datixed” the incident as it breached information governance and would be commencing a formal investigation and that she would provide the Claimant with a written outcome within the following two weeks. She also indicated that she would like to see the Claimant after the investigation to provide feedback personally. She invited the Claimant to contact her in the meantime if she had any questions. Whilst the investigation did in fact take longer than she had indicated, we are satisfied that Samantha Wain did take the matter seriously and acted as promptly as possible.

[79]In respect of her investigation into the Claimant’s grievance Samantha Wain met with Sue Wootton on 6th December 2017 (see pages 252(6) and 252(7) of the hearing bundle). She also met with the Claimant on 20th December 2017.

[80]Following those meetings Samantha Wain wrote a long letter to the Claimant dated 22nd January 2018 (see pages 254 - 256 of the hearing bundle) setting out her findings and conclusions in relation to the grievance. There appears to have been some delay in the Claimant receiving the outcome letter, which she contends she did not receive until 20th February 2018, but it is not necessary for us to make any finding about what caused that delay. 7 Matron Robinson is a reference to Matron Smedley who has since changed her name.

[81]The letter is a lengthy one and so we do not set it out in full here, but it made the following points:• That the Claimant’s concerns had been taken very seriously and that Ms Wain had undertaken an investigation to find out what had happened;

• That she had met formally with Sue Wootton and it was clear that she was upset by the fact that the incidents had happened and that it was understood that she had already apologised directly to the Claimant;

• That she believed that Ms Wootton had unintentionally put the paperwork in the off duty file for a band 6 sister to use to conduct a return to work interview as that needed to be done out of hours;

• That in her opinion it would have been better for Ms Wootton to have given the paperwork directly to the sister to put in a secure and confidential place until they needed to refer to it and that had not happened;

• That Ms Wootton understood that the system that was being used was not the best approach and had the potential for breaches of confidentiality;

• That going forward, the paperwork would be kept locked in a portacabin which was also a locked office and the person undertaking the return to work interview would go to the portacabin to collect the paperwork or to conduct the interview there;

• That whilst the Claimant had told her that Ms Wootton had apologised to her personally, she had also said that she was not aware of the identity of the perpetrator of the first incident and that the Claimant still did not know who this was either;

• That, likewise, Ms Wain did not know who had left the Fit Notes in the off duty file on the first occasion but the fact that changes to the process were to take place with immediate effect meant that it would not happen again and that it was more important to learn from the incidents to ensure that it did not take place in the future and that paperwork must not be kept anywhere where anybody would have access to it;

• That in relation to the Claimant’s query about whether the matter had been reported to the Information Commissioner, it was confirmed that a Datix had been submitted but there would need to be a check to see whether the matter had been referred by checking that with the Respondent’s Senior Information Risk Officer (“SIRO”);

• That she could not share whether Ms Wootton had been disciplined in respect of the incidents as that information was confidential;

• That she would get back to the Claimant after taking advice to see what else could be done satisfactorily to resolve the matter for her; and

• That the Claimant had been invited to consider acting as the Emergency Department’s Information Governance Champion so that she could become more involved in helping to improve how the Respondent looked after information and she asked the Claimant to come back to her on that. There was an offer to meet with the Claimant to get that process started.

[82]The Claimant was not interested in taking up the offer that she become the Information Governance Champion for the department and so nothing further happened in that regard.

[83]We are satisfied from that outcome letter and from the evidence of Samantha Wain that she took the Claimant’s complaint very seriously. The Claimant had been apologised to for what had happened and practices had been changed to ensure that it did not occur again in the future. Whilst matters were very regrettable, there was not anything else the Respondent could ultimately do to change the position and we are satisfied that they acted as best they could once the matter was brought to their attention to investigate and try and provide a resolution for the Claimant.

[84]The outcome letter indicated that the question of whether Matron Wootton had been made subject to any disciplinary action could not be shared with the Claimant. However, we are aware that she had been interviewed by Human Resources and a “file note” issued. We have not seen a copy of that file note and indeed neither has Ms Wootton. We take it to mean that it had simply been recorded that the incident had occurred and it does not appear that any formal warning was given.

[85]However, we accept that after the event procedures were changed as it was recognised by the Respondent that the way in which data had been stored was inappropriate. The Claimant was informed about that in the outcome letter from Samantha Wain. As a result of the change in procedure any Fit Notes and associated documentation which would otherwise have previously been left in the off-duty file were transferred to a locked filing cabinet within a locked portacabin mainly used as an office by the matrons. Anyone conducting a return to work interview would need to attend the portacabin to collect the relevant paperwork. That had the result that moving forward all personal documentation would be kept securely with no risk that it could be seen by anyone who was not required to access it. Commencement of the Claimant’s ill health absence

[86]On 23rd December 2017, the Claimant commenced a period of ill-health absence. In fact, sadly she was never able to return to work and, as we have already indicated above, her employment was eventually terminated by the Respondent because there was no prospect of her returning to work.

[87]It was decided that Kaye Smedley would undertake the role of keeping in touch with the Claimant in relation to her sickness absence because of the fact that the Claimant had raised her grievance about Sue Wootton. That was undertaken by way of WhatsApp messages (see page 252(3) to 252(5) of the hearing bundle) and also by way of a meeting on 6th January 2018 and two telephone calls which took place on 8th February and 9th March 2018 between Kaye Smedley and the Claimant (see pages 253 to 260 of the hearing bundle).

[88]All of those messages and discussions appear to have been perfectly cordial and although the Claimant criticises Ms Smedley for the fact that they appear to have taken place at times that the Claimant contacted her rather than the other way around, it is not unusual for those who are on sickness absence to be left to make contact when they wish to do so as many employees find it oppressive and even harassing for the employer to be the one to take the lead in that regard. We are satisfied that at any time the Claimant wished to speak to Ms Smedley she made herself available and was supportive of the Claimant’s position and committed to supporting her in a return to work.

[89]In the last telephone discussion that was had on 9th March 2018, Ms Smedley made arrangements to meet with the Claimant on 30th March 2018 to discuss a phased return to work. That was because at that stage it was anticipated that the Claimant would be returning to work after the expiration of her current Fit Note. She asked the Claimant to think about what sort of shifts would suit her in the first two weeks of the phased return to work arrangement so that that could be discussed at the return to work meeting. We shall come to the events of the 30th March meeting further below. Return to work meeting – 30th March 2018

[90]As we have already observed, there was to be a return to work meeting between the Claimant and Kaye Smedley on 30th March 2018. That was a bank holiday and the intention was that it would be quiet on site which would make it easier for the Claimant to attend because no one else was expected to be there who was not on shift providing care or supervision.

[91]The meeting was to take place in the portacabin which, as we have already observed, was used by the Matrons when they needed to deal with meetings or paperwork. There is a dispute between the Claimant and Respondent as to whether the meeting was scheduled for 10:30 a.m. or 10:00 a.m. but ultimately little turns on that. To any extent that it is necessary for us to make any findings of fact about that we prefer the evidence of the Respondent that the meeting was scheduled to take place at 10:00 a.m. and not 10:30 a.m. as the Claimant believed to be the case. We make it plain that we are not saying that the Claimant was being untruthful in her evidence but she was, and still is, under a great deal of stress and she may either be mistaken or the passage of time has caused difficulties in her recollections.

[92]The meeting was to be a return to work meeting but, unbeknown to Ms. Smedley at the time, the Claimant was still unwell and had obtained a further Fit Note which she had taken with her to hand in at the meeting. She would not therefore have been returning to work at that stage but the Respondent did not know that at that point.

[93]As we have already observed, the meeting was to take place in the Matrons’ portacabin. The Claimant had, perfectly reasonably, expected that it would be just herself and Kaye Smedley who would be present but there were in fact two other members of staff in the portacabin that day and one of those was Sue Wootton. The Claimant was therefore extremely wrongfooted to find Sue Wootton at the meeting and she left almost immediately saying words to the effect: “Sorry, I can’t do this”. She had been accompanied by her husband who also left the portacabin with her. The Claimant’s account of this incident was muddled and not entirely consistent. Again, there is no suggestion that the Claimant is being untruthful but it was clearly a stressful and traumatic incident for her and we consider it likely that this has affected her recollection. To that end, we prefer the more consistent evidence of Ms. Smedley and Ms. Wootton as to the events of this meeting albeit as we have already said the latter may well have sought to downplay her involvement.

[94]We do not accept that there was any intention to ambush the Claimant with the presence of Sue Wootton and we also do not accept that she was forced to sit there under the scrutiny of Sue Wootton for a protracted period of 10 minutes as she indicated at one point in her evidence to us. Indeed, that lengthy period flew in the face of what she had said in her grievance about having to leave the meeting. We do not accept, as the Claimant also appears to suggest, that Sue Wootton was in any way laying in wait for her or that there was any predetermination that she would be there at the same time as the Claimant for the meeting. She was aware when she attended that the Claimant was going to be there but had intended to simply offer a greeting to try and break the ice before leaving Kaye Smedley to conduct the meeting. When the Claimant had not attended at 10.00 a.m. as planned it had, wrongly, been assumed that she was not coming.

[95]Upon the Claimant exiting the portacabin Sue Wootton followed her asking to speak with her. We accept that she did that with the right intention of trying to engage with the Claimant to repair their relationship because she regretted what had happened and wanted to put things right for when the Claimant returned to work. Whilst those were good intentions, ultimately in hindsight it entirely the wrong thing to do and simply served to cause the Claimant further distress. However, Ms. Wootton did not know at the time that that was going to happen.

[96]We do not accept that Ms. Wootton shouted at the Claimant or otherwise raised her voice at her and we are satisfied that she was not angry or abusive. However, we accept that she became frustrated with and did raise her voice towards Mr. Stringfellow who we accept was very vocal and raised the temperature of an already difficult situation. We are satisfied that he inflamed the situation and that was the reason why Ms. Wootton became upset. She did say words to the effect that she was leaving the A&E Department but that was a reflection of the fact that she simply wanted the Claimant to know that in case it was a barrier to her return to work and it was not in the negative way that the Claimant now portrays it. Ms. Wootton would still be part of the same division as the Claimant and therefore, although not her line manager anymore, would be likely to come across her and she wanted to make sure therefore that there were no ill feelings. We also accept that Ms. Wootton made reference to the fact that she had apologised to the Claimant and had been given a file note and asked her what more she could do or words to that effect but we consider it likely that that was done because she would not speak with her and she was at something of a loss to understand why.

[97]We are satisfied that this exchange took place out of concern for the Claimant and wanting to repair what was otherwise previously a cordial and happy working relationship. Ms. Wootton was – and we accept still is - upset to know that she had caused the Claimant to become unwell and wanted to repair the fractured relation and it was for that reason and no other that she followed the Claimant outside and implored her to speak with her.

[98]Whilst the Claimant’s evidence was such that Mr. Stringfellow had not inflamed the situation and that it was Sue Wootton who was unprovoked aggressor, we do not accept that that was the case. That may have been the Claimant’s perception when considered through the prism of the damage that she feels that the Respondent has done to her and their intentions towards her, but we do not accept that it was the reality. We prefer the evidence of Sue Wootton and Kaye Smedley on that front, and it is supported by contemporaneous documents in relation to other members of staff to whom we shall come in due course who took issue with the way that Mr. Stringfellow was conducting matters on behalf of the Claimant. We are therefore satisfied that whilst there were raised voices at the meeting that was led by Mr. Stringfellow and no shouting or anger was directed at the Claimant at all.

[99]Ms. Wootton left the portacabin area and we accept that she was upset and shaken by what had happened. She accordingly sought out her line manager to discuss what had occurred and, particularly, how she felt about Mr. Stringfellow’s actions. She had tried Ms. Wain’s office on the off chance because it was supposed to be her day off. However, she had come in and was trying not to be disturbed so that she could catch up on paperwork. We do not consider that there is anything unusual or untoward in that position as it was not unusual for Matrons to attend on a day off to clear administrative backlogs. That day would have stuck in the mind of Ms. Wain because it was her birthday and we accept her evidence as to this event which was consistent with that before us.

[100]We should note that it would have been far better had Ms. Smedley asked Ms. Wootton to leave the office well before the Claimant was expected to arrive but we accept that this was simply a mistake and there was no ill intention on her part nor was Ms. Wootton intended or expecting to be a part of the meeting. As we have already said, whilst she was aware that the Claimant was due to attend her intention was to offer a greeting and then leave. Again, with the benefit of hindsight contact should have been avoided but we accept that there was no malice intended.

[101]We also accept that Ms. Smedley had not known that anyone else would be in the portacabin and it was not pre-planned as the Claimant appears to suggest. Matron Wootton was not scheduled to work on that day and had unexpectedly attended to complete some paperwork. Again, we accept that attending on a day off to catch up with outstanding paperwork was nothing out of the ordinary. That was also the reason why Sue Wootton was not in uniform on that day. One of the outstanding tasks that Sue Wootton was attending to was to close off some completed datix reports. One of those happened to be the one involving the Claimant’s data breach, but we accept that that was purely coincidental and it was not the only datix that was being closed off that day.

[102]Kaye Smedley spoke with the Claimant and she was persuaded to return to the portacabin to start the meeting. By that time both Ms. Wootton and the other member of staff who had been present, LM, had left and the meeting itself was conducted with just Kaye Smedley, the Claimant and Mr. Stringfellow present. Ms. Smedley’s note of the meeting, which appears at pages 261 and 262 of the hearing bundle, reflected that Mr. Stringfellow became hostile during the discussion and that she had to ask him to cease being confrontational. That reinforces our view that he had also inflamed the earlier situation with Sue Wootton as do the comments made by Ms. Smedley at a later investigatory meeting following a complaint from the Claimant.

[103]The Claimant handed over her most recent Fit Note to Ms Smedley and she in turn offered her a leaflet for a counselling service which she encouraged her to use and arranged for payslips that the Claimant had not received to be provided to her. She made it clear that she had not maintained constant contact with the Claimant because she did not want her to feel pressured but that she should feel free to call her at any time. We accept that the meeting was difficult because of both the involvement of Mr. Stringfellow and his attempts to control it and the fact that the Claimant was suffering significantly with her mental health and had suffered a setback by seeing Ms. Wootton.

[104]Ms. Smedley also offered the Claimant a referral to occupational health, which she accepted, and that referral was completed by Kaye Smedley on the same day (see pages 263 to 267 of the hearing bundle). The Claimant’s second grievance

[105]The following day, both the Claimant and Mr. Stringfellow made a complaint about the events of 30th March 2018. Those were separate letters but the theme of both were very similar.

[106]It is common ground that there was no outcome or substantive response made in relation to Mr. Stringfellow’s complaint but we do not find that unusual because the Respondent was, as we shall come to, treating the Claimant’s complaint as an internal grievance. The grievance procedure was not applicable to Mr. Stringfellow because he was not an employee of the Trust.

[107]To any extent that his complaint should have been dealt with on a formal footing and a response issued then that would have been through PALS and not by any of the witnesses from whom we have heard in connection with these proceedings.

[108]The Claimant addressed her letter of complaint to Leanne Featherstone of HR. The Claimant relies upon the contents of that letter as being a protected disclosure and therefore again it is worth setting out the content in full. The letter is at pages 280 and 281 of the hearing bundle and it said this: “In line with the ACAS Code of Practice on Disciplinary and Grievance Procedures, please consider this correspondence to constitute a formal letter of complaint about the behaviours I experienced from my senior management which I find unacceptable. The issue that led to this complaint happened on 30th March when I attended CRH at 10:30am for an arranged appointment solely with Matron Robinson accompanied by my husband for support. We discussed the meeting beforehand when Matron Robinson contacted me to arrange for an appointment - it was agreed to take place between Matron Robinson and myself, specifically without Matron Wootton being present. Matron Robinson confirmed that she would be in the office alone. This was both due to the nature of the meeting and the previous incident involving Matron Wootton, which involved a breach of data protection which is known to be a main cause of my stress anxiety and depression. This was known to Matron Robinson. Matron Robinson opened the portacabin door (situated outside the ED Department) and invited me and my husband in. Upon entering the room I immediately froze on the spot as both Matron Wootton and Sister [LM]8 were sat at their desks. Matron Robinson cleared a chair for me without asking anyone to leave the office. My anxiety levels rose and I then suffered a panic attack, I began to shake and cry and stated, “I can’t do this this,” and left the portacabin to remove myself from the situation. My husband followed me to console and support me. Sister [LM] left without saying anything and removed herself from the situation. Matron Wootton (who was not in uniform) came out onto the decking at the top of the steps to the portacabin leaning over the rail she was shouting “Jackie, Jackie talk to me,” I stated that I didn’t want to talk, and I hadn’t come for this. Matron Wootton then stated she had been reprimanded and now has a file note because of this - and that she has given me an apology. I refused to talk to her, Matron Wootton then stated in a threatening manner that: “You will have to deal with me. I’ll be here when you come back.” I constantly repeated that I didn’t want to talk to her and that I hadn’t come for this. I asked my husband to take my sick note to Matron Robinson and I wanted to leave. My husband then gave my sick note to 8 Again it is not necessary to identity the Sister in question and so we have anonymised her in this Judgment. Matron Robinson stating that he was appalled with with (sic) the way I was being treated and that it was supposed to be a private meeting. To which Matron Wootton then turned to my husband and raised her voice in a public area she said: “You’re fuelling her illness, this is nothing to do with you, I’m her manager,” to which my husband told her that he is my husband and his wife’s health is his concern. These verbal insults to my husband increased my anxiety. Matron Wootton then went back into the office to retrieve her cardigan and came outside, descended the portacabin steps where I was stood with my husband and she said in a loud stern voice, “Well I’m leaving anyway so you won’t have to deal with me”. At no point did Matron Robinson defuse the situation or stop Matron Wootton’s bullying and harassment of me and my husband. This situation has completely ruined my respect, trust and confidence in CRH. ACAS defines bullying and harassment as demeaning and unacceptable actions and comments which affect the dignity of men or women in the workplace. I had removed myself from an intimidating and demeaning situation which was causing me distress, anxiety. It was humiliating to be pursued outside by Matrons of CRH and to be bullied and harassed and intimidated in a public place. I am completely disgusted in the way CRH’s Matrons behaved in the Trust’s name to an employee. I feel that I was being threatened for following trust policy. The CCTV should have captured this incident. I would like a full investigation and a report of your findings I shall also be taking advice on this matter. I would like this incident datixing. I would also like to know in what respect Matron Wootton was present as Matron Wootton was not in uniform and I was informed when making the appointment that no one was in the office only Matron Robinson that day.”

[109]Leanne Featherstone wrote to the Claimant acknowledging receipt of her letter on 3rd April 2018. She confirmed that she would pass it on to an appropriate person to investigate and they would be in contact in due course. She referred to the matter as being a grievance.

[110]The Claimant replied to say that she had raised a formal complaint and not a grievance and there appears to be some criticism of the fact that the Respondent did deal with the matter as a grievance. However, given that the Claimant herself had referenced the ACAS Code of Practice on Disciplinary and Grievance Procedures and the fact that it was a complaint coming from an employee, it is unsurprising in our view that the Respondent dealt with the matter as a grievance under the relevant grievance procedure.

[111]Gill Stevens, Head of HR, also contacted the Claimant on 10th April 2018 to confirm that they were in the process of arranging an investigating manager and that an HR Adviser, Sarah Cooper, would be in touch to arrange a meeting to discuss the details of the grievance.

[112]The Claimant replied to ask for an alternative venue other than the Trust premises for the meeting to take place and referred to having no support from HR or occupational health during the four months she had been absent from work and that she considered herself to be totally isolated.

[113]Gill Stevens replied first thing the following morning to refer the Claimant to the counselling service which Kaye Smedley had already provided details of. She provided contact details again to the Claimant and said that she would identify a manager who could be the Claimant’s point of contact. She subsequently asked Leanne Featherstone to be involved in identifying someone to assist the Claimant.

[114]On the same day, Kaye Smedley wrote to the Claimant to ask her to attend a stage one absence review meeting. The Claimant points to the fact that under the Respondent’s Absence Management Policy, a first stage review meeting should have taken place much sooner. Whilst that is the case, we accept that matters had been put on hold pending determination of the Claimant’s first grievance surrounding her Fit Notes and the data breach. When the grievance had concluded and it had become clear that the Claimant was not able to return to work after the return to work meeting the first stage review was scheduled. If the stage one review had taken place prior to the grievance outcome, it is likely that the Respondent would have faced criticism for that.

[115]Whilst the timing of the invitation was unfortunate given that it came on the same day as the Claimant raised her second grievance, we accept that Kaye Smedley was not aware that the Claimant had raised that grievance or that she intended to do so Nothing had been said or hinted at in that regard in the return to work meeting and the timing is simply explained by the fact that it had become clear at that meeting that the Claimant was not going to be able to return to work as had been anticipated before it took place.

[116]The Claimant also takes issue with the fact that the stage one meeting had been scheduled to take place at the Matrons’ office on Trust premises. However, Kaye Smedley was not a recipient of the Claimant’s email asking for meetings to be held elsewhere and therefore it is unsurprising that she offered this venue to the Claimant. In all events, as we shall come to that meeting did not take place as scheduled.

[117]Mr. Stringfellow sent an email to Leanne Featherstone upon receipt of the letter indicating that the Claimant was now crying and in a state and had a fear of the Hospital premises after the events of 30th March. He asked that the Claimant be given someone other than the Emergency Department Matrons (i.e. Matrons Wootton and Smedley) to liaise with and for meetings to be held at another venue as a result of the Claimant’s mental health.

[118]In consequence, Leanne Featherstone asked Kaye Smedley not to contact the Claimant until the investigation into her second grievance had been completed and she emailed Mr. Stringfellow on 16th April 2018 to advise him of that position. She also set out that the Respondent was in the process of appointing a named manager to assist the Claimant and that meetings would be held at an alternative venue.

[119]Much has been made during the course of these proceedings as to who the Claimant’s manager was during this period of time. It is said that it could not be Kaye Smedley because of the instruction from Leanne Featherstone not to contact the Claimant. However, that was of course done as a consequence of the request made by the Claimant’s husband.

[120]The position is that the Claimant only needed a point of contact during the period that she was away from work and the Respondent at all times ensured that somebody was available. We shall come to the details of those individuals at a later point. However, the Claimant did not need contact from a line manager in addition during that particular time because she did not need direction in relation to anything that she was doing at work as a result of her continued ill health absence. Ms. Smedley remained her manager and that would have been the case if the Claimant had been able to return to work.

[121]Later the same day Leanne Featherstone sent a further email to Mr. Stringfellow to confirm that Mike Hedland, the Service Manager in the Acute Care Unit, would be the point of contact for the Claimant. Mr. Stringfellow was given Mike Hedland’s telephone number so that the Claimant could make contact. Mr. Stringfellow had also been advised that Gary Durrant, Senior Matron, and Sarah Cooper, HR Adviser, would be investigating the Claimant’s grievance.

[122]Mr. Durrant subsequently wrote to the Claimant on 20th April 2018 inviting her to a formal investigation meeting. That meeting was arranged at a venue away from the Trust’s premises. The letter advised the Claimant of her right of accompaniment at the meeting, although in all events the Respondent acceded to a request that she be accompanied by Mr. Stringfellow and indeed he attended all meetings with the Claimant and the Respondent from the 30th March meeting onwards.

[123]Mr. Stringfellow subsequently emailed Leanne Featherstone on 16th April 2018 indicating that he had tried to make contact with Mike Hedland but had not been able to do so. He asked Ms. Featherstone to pass on their home telephone number to Mike Hedland for him to make contact with them. Mr. Hedland made contact the following morning, but the Claimant was unable to speak with him because she had become distressed. Instead, he spoke with Mr. Stringfellow and during that discussion he referenced it having been agreed that the Claimant should attend an occupational health appointment following the referral that had been made by Kaye Smedley and thereafter having a meeting with Gary Durrant to discuss the second grievance. Occupational health assessment

[124]The Claimant subsequently attended an occupational health appointment on 24th April 2018 and on the same date, albeit by way of a letter with an incorrect date, a Nurse Specialist Occupational Health Adviser produced a report as to the Claimant’s health. The report, which appears at pages 297 to 298 of the hearing bundle, set out the circumstances that had led to the Claimant’s ill health absence and the effects that she was experiencing along with details of the treatment that she was currently receiving. The report set out that the Claimant was not fit for work in any capacity and there was a recommendation for a psychological assessment, including an assessment for Post-Traumatic Stress Disorder, to help establish a diagnosis and recommendations for treatment. It was indicated that that could be facilitated via occupational health, which was not part of the Respondent Trust, with a clinical psychologist but that that would need to be funded separately as it was not currently included in the contract that the Respondent had. The Respondent subsequently put into place arrangements for a psychological assessment, although as we shall come to below there was a delay in that taking place.

[125]The report also set out that in terms of workplace recommendations of primary importance would be the avoidance of a protracted investigation and it was in the Claimant’s best health interests that the matter be concluded as swiftly as possible.

[126]Even at that early stage, the indication was that there was going to be a potential difficulty in respect of the Claimant’s return to work and the relevant part of the report said this: “However, in my opinion it would appear that the relationship between Jackie and her managers has broken down to a level that Jackie’s trust and confidence in her employer has been very seriously undermined. Given the size and demographics of the trust this could make a return to work at CRH very difficult to achieve.”

[127]As we shall come to, that turned out to be an accurate prediction because regrettably the Claimant was not able to return to work with the Respondent because of her continued ill health.

[128]Although the Nurse Practitioner in question had emailed Sarah Cooper of HR about the report and indicated that it should be released only to her in the first instance once the Claimant had seen it and not to the referring manager (i.e. not to Kaye Smedley) in fact the report was emailed directly to Kaye Smedley by a member of the administration team in the absence of the Nurse Practitioner. That was an error on the part of Occupational Health and it was not done at the request or behest of the Respondent.

[129]Kaye Smedley subsequently forwarded the report onto Leanne Featherstone for further action. We accept the evidence of Ms. Smedley, which was barely challenged by the Claimant despite her being recalled specifically to deal with that point, that she had not read or digested the contents of the report in any great detail. We are also satisfied that she did not share the contents with Sue Wootton. It is possible that the report came to the attention of Sue Wootton if it was in the Claimant’s personnel file, but we are satisfied that Kaye Smedley did not divulge or discuss it with her. Grievance investigation

[130]On 4th May 2018, the Claimant and her husband met with Gary Durrant and Sarah Cooper for a grievance investigation meeting. At that meeting, the Claimant gave an account of what she said had happened on 30th March 2018 and the relevant parts of her account said this (see pages 311 and 312 of the hearing bundle): “Yes, it’s like I was in a bubble. I heard SW shouting, I didn’t see her. She was shouting. She said “you need to talk to me”; I said “I’m not here for this, I can’t”. She said “you will talk to me, you will deal with me. I will be here when you get back”; she said “why has it come to this? I’ve had a file note I’ve been reprimanded. What more do you want from me?” KS just stood there. She never said anything. I told JeS9 to give her the sick note and that we needed to go. SW was still shouting; “Jackie, Jackie”. I heard JeS say “this should be a private meeting, look what you are doing to my wife. SW is not supposed to be here”. SW screamed “you’re making her illness worse, this is Jackie’s work. I am her manager”. KS did nothing. SW went back to the portacabin and got her cardigan. JeS was with me. Then she came down the steps shouting “you won’t have to deal with me” and she leaned into my face and screamed “I’m leaving” and stormed off. KS asked us to return to the office. I thought that she would say that [SW behaviour] was disgusting or something. I said “I didn’t deserve that”; she just looked at me and said “moving forward”.

[131]We accept that whilst that may have been and still be the Claimant’s perception of what happened during that time when revisiting the events of 30th March 2018, we do not accept that it was the reality. It certainly gave a far more serious account than had been recorded in the Claimant’s grievance which was raised in the immediate aftermath of the events of 30th March 2018 and it appears to us that the incident has escalated in the Claimant’s mind as time has gone on.

[132]As we have already referenced above we accept that there were voices raised on both sides by Mr. Stringfellow and by Sue Wootton, with the former having inflamed the situation. We do not accept that Sue Wootton at any point was in the Claimant’s face or shouting or screaming at her. We accept that she called after the Claimant to try to get her attention and get her to come back and talk and that what she was doing, as we have already observed, was seeking to repair a fractured relationship. Whilst again it was ill advised to deal with matters in that way, we accept that she had good intentions when doing so and that she might equally have been criticised if she had simply left the office and ignored the Claimant entirely.

[133]At Mr. Durrant’s request, the Claimant clarified that the grievance was against both Sue Wootton and Kaye Smedley. During that meeting, Mr. Durrant made a comment that he knew he would get a different account when he spoke to Sue Wootton and Kaye Smedley. We clarified that with Mr. Durrant during his evidence, which we accept, that that was what he was anticipating because 9 That is an abbreviation of Jeremy Stringfellow – the Claimant’s husband. there are generally two sides to every story and people have differing perceptions about what had happened. We do not accept as is suggested that he had made up his mind at that point to accept the word of Sue Wootton and Kaye Smedley over the account that the Claimant had given and we are satisfied that he kept an open mind throughout.

[134]During the meeting, the Claimant also said this of Sue Wootton (see page 313 of the hearing bundle): “SW is not the most approachable; she’s got a bad reputation in the department for being rude. She talks down to people. She doesn’t listen. She just says “moving forward”. People don’t stop. Most of her attention has been on me since the data breach. I don’t see her a lot as I tend to work on nights.”

[135]The Claimant was sent a copy of the minutes of the meeting to which she made a few minor amendments and we are satisfied that those are an accurate reflection of what occurred.

[136]Gary Durrant and Sarah Cooper also met with Kaye Smedley on 17th May 2018. She referred to the meeting on 30th March 2018 as being one where Sue Wootton was very emotional. She said that her arms had been very expressive but that she was not aggressive and that she may have raised her voice to be heard over the traffic. That latter point was discussed at a later meeting with Sue Wootton but her view was that that had not had any impact because it was quiet. That is a matter of differing perceptions rather than anything of significance and, indeed, Ms. Smedley was only proffering an opinion some weeks later about what might have happened and not what definitely had.

[137]By that time, Gary Durrant had looked at the CCTV footage outside the portacabin which had been referred to by Mr. Stringfellow and by the Claimant in her grievance. Although we did not see that CCTV footage we accept Mr. Durrant’s evidence that it was limited and as it did not include audio it did not materially assist in the investigation.

[138]When a specific quote was put to Kaye Smedley that Sue Wootton was said to have said: “I have had a reprimand what more you do want”, she clarified that her recollection was that Sue Wootton had actually said: “What more can I do”. As we have set out above, we accept that words to that effect were used but in the context of wanting to understand what could be done to repair the relationship.

[139]When asked if there was anything that she would do differently, Kaye Smedley referred to the fact that she wished she had been in the office alone. That was also her evidence before us and it is a sensible concession but one made with the benefit of hindsight. She could not have foreseen that the events of 30th March 2018 were going to unfold as they did.

[140]Kaye Smedley also referred to Mr. Stringfellow’s behaviour when they returned to the meeting privately. She referred to him as being aggressive and that she had to turn her chair to the Claimant so as to block him out. She referred to feeling intimidated and that she would not want to meet him again alone. Again, that reinforces our view that it was Mr. Stringfellow who inflamed the situation on 30th March and caused Sue Wootton to raise her voice in response.

[141]Ms. Smedley did ask during the course of the meeting whether the complaint was made by the Claimant or the Claimant and Mr. Stringfellow. Mr. Durrant referred to the former, although Mr Stringfellow had of course separately raised a complaint and as we have already observed it was outside the scope of the investigation that Gary Durrant was asked to undertake and therefore it is unsurprising that he commented in the terms that he did.

[142]Sue Wootton was also interviewed by Gary Durrant and Sarah Cooper on the same date. She referred to Mr. Stringfellow as being aggressive; denied having raised her voice; that she had told the Claimant that she was leaving the office and that she would be stepping down as Matron so would no longer be her line manager. She referred to the fact that she had intended to say hello and that she was not going to be involved in the return to work meeting but did not want to ignore the Claimant and that there was no indication that it was to be a private meeting. She said that she was very upset on the day in question as the Claimant had also been. She referred to feeling guilty that the Claimant had been off as a result of something that she had allegedly done. She referred to Mr. Stringfellow as being very angry but that the Claimant was not.

[143]Later in the meeting, she was asked whether she was confident that she was not aggressive and that she did not shout. Sue Wootton replied: “I don’t remember if I did or not I was upset with him, it was nothing to do with him”. Again, this reaffirms our finding that no aggression was demonstrated towards the Claimant but it was Mr. Stringfellow having inflamed the situation that led to raised voices and to Ms. Wootton having become upset with him.

[144]At the close of the meeting, Sue Wootton’s companion - who had attended the meeting with her in accordance with normal process - referred to the fact that there was often “no rationalisation” with mental health issues. The Claimant contends that that is evidence of discrimination and belittling of her mental health. However, that was not a comment made by Sue Wootton or anyone else involved in these proceedings and Sue Wootton would not have had any control over a comment made by her companion during the course of the meeting. We do not accept that that view was one that Sue Wootton held and there is no indication that she agreed with or endorsed the comment made at the time.

[145]On 21st May 2018, Gary Durrant also interviewed Samantha Wain. That was part of her dealings with the initial complaint that the Claimant had raised about the data breach and also the fact that, as we have already observed above, in the immediate aftermath of the events of 30th March 2018 she had been sought out by Sue Wootton, who she referred to as quite distraught and visibly shaken.

[146]On the same day, Gary Durrant also interviewed LM who had been present at the meeting. She indicated that she had been in the portacabin but was told by Kaye Smedley that she had a meeting later that day and she would have to leave at that point but was not aware of the time. She referred to the Claimant looking upset and that she had known something was not right. She said that she felt that Kaye Smedley had handled the situation well and that she had not heard Sue Wootton shout. She referred to Mr. Stringfellow having raised his voice but the Claimant not having done so and that she “knew him from old” and knew that he could be like that. Again, that relatively contemporaneous account informs our view as to the involvement of Mr. Stringfellow and that impact that that had which we have already described above.

[147]LM also referred to Sue Wootton having “ranted” at the team; that she had also done it to her and never apologised for what was said. She referred to it being embarrassing and that she had recently witnessed her shouting at a receptionist. She said that that had been witnessed by a service manager and, as far as she was aware, it had been dealt with.

[148]The Claimant relies on that as supporting her position that it was Sue Wootton who was aggressive during the course of the altercation on 30th March 2018. As we have already observed, we accept that there were more than likely raised voices but that that came as a result of Mr. Stringfellow’s involvement and it was not directed towards her.

[149]The Claimant also contends that Mr. Durrant should have undertaken a wider investigation in view of the comments of LM about what she said that she had observed as to Sue Wootton’s conduct. We do not consider it unusual that he did not do so given the scope of what he was asked to investigate and the fact that LM had commented, insofar as the incident in reception was concerned, that as far as she was aware it had been dealt with. We also accept Mr. Durrant’s evidence that the A&E Department is a charged and pressurised environment and sometimes people do raise their voice. It would not be something out of the ordinary that would therefore need to be specifically investigated and we see no error in Mr. Durrant not having done so. Injury benefit allowance application

[150]On 23rd May 2018, the Claimant was advised that her entitlement to full pay under the Occupational Sick Pay Scheme was due to end with effect from 6th June 2018. That was on the basis that by that point the Claimant would have been absent by reason of her ill health for a period of six months. The Claimant was advised that if she continued to be absent then she would be eligible for a further six months at half pay in addition to statutory sick pay, to which she was also entitled. That was in accordance with the Claimant’s contract of employment.

[151]However, by that stage the Claimant had applied through her husband for injury benefit allowance. That allowance was to effectively top up sick pay or earnings when on reduced pay and allows that payment to continue for up to 12 months per episode. The injury allowance policy features in the bundle between pages 204 to 208.

[152]The parts relevant to this claim are sections 22.3, 22.4 and 22.7, which provide as follows: “Eligibility 22.3 Eligible employees who have injuries, diseases or other health conditions that are wholly or mainly attributable to their NHS employment, will be entitled to an injury allowance, subject to the conditions set out in this section. The injury, disease or other health condition must have been sustained or contracted in the discharge of the employee’s duties of employment or an injury that is not sustained on duty but is connected with or arising from the employee’s employment. 22.4 The attribution of injury, illness or other health condition will be determined by the employer who should seek appropriate medical advice … In all cases the employer should use the civil burden of proof - “on the balance of probability” (more likely than not) – to determine the outcome. Where the employee disagrees with the employer’s decision then they are entitled to appeal the decision through local grievance procedures. 22.7 The following circumstances will not qualify for consideration of injury allowance:• injury whilst on a normal journey travelling to and from work, except where the journey is part of their contractual NHS duties;

• sickness absence as a result of disputes relating to employment matters, conduct or job applications;

• injury, disease or other health conditions due to or seriously aggravated by the employee’s own negligence or misconduct.”

[153]The policy is supplemented by the NHS Staff Council Injury Allowance Guide for Employers which is included in the bundle at pages 101(1) to 101(16). Paragraph 12 of the guide provides that injury benefit allowance cannot be considered where an employee is on sickness absence as a result of disputes relating to employment. There are examples such as where the absence is as a result of investigations or disciplinary matters (see page 101(4) of the hearing bundle). Paragraph 14 is also of relevance and provides further guidance about employment disputes. One sentence is of note and upon which the Claimant relies provides as follows: “It is important the allowance should not automatically be withheld from a member of staff who is off sick as a result of being bullied and who has made a complaint that is being investigated, but payment will depend on the facts of the case itself.”

[154]On 30th May 2018, Mr. Stringfellow chased up progress with regard to the injury benefit allowance application. That coincided with the Claimant being advised that she would be placed on half pay with effect from 6th June 2018. That chaser email was sent to Leanne Featherstone. She replied the same day to apologise for the delay in getting back to the Claimant, explaining that she had been on annual leave. She explained that the Claimant was not eligible for temporary injury benefit because the relevant guidance provided that the illness or injury that caused the sickness absence must have occurred prior to 31st March 2013. That was in fact incorrect but we accept that that is what Leanne Featherstone had been told by the individual in the Pensions Department to whom she had spoken to obtain advice as to eligibility and that she had trusted that what they said was correct. However, unfortunately it was not.

[155]Mr. Stringfellow replied later the same day to say that what Ms. Featherstone had been referring to was Part B of the policy but that they were making an application under Part A which dealt with injuries which had occurred post 31st March 2013. Mr. Stringfellow highlighted the relevant part of the guidance and attached that to his email. He asked for the matter to be expediated. As we shall come to further below, the matter was passed to Gill Stevens, Head of HR, to make a decision. She rejected the Claimant’s application and we will deal with the detail of that below.

[156]Before a decision was taken as to the Claimant’s entitlement to injury benefit allowance Leanne Featherstone emailed Gill Stevens on 28th June 2018 with regard to another case where she had received a free 30 minute consultation with a solicitor to discuss an injury benefit allowance application. She made it plain that she had not discussed the Claimant’s case because she was running out of time but gave her view that from the conversation in relation to the other individual, that she thought it would be difficult not to pay the Claimant the injury benefit allowance also. This was only her opinion, however, and the matter was still an issue for Gill Stevens to determine in accordance with the policy.

[157]The Claimant is critical that her situation was not discussed or that a further free 30 minute appointment or a paid session was not arranged to discuss her particular case. However, there would have been no need to do that as whilst Leanne Featherstone had reached a view that it would be difficult not to pay the Claimant, the decision was ultimately one for Gill Stevens. Psychological assessment and the decision on the injury benefit allowance application

[158]As we have already observed, one of the recommendations set out in the occupational health report was that the Claimant should have a psychological assessment via occupational health. That recommendation was taken up by the Respondent and the Claimant attended an appointment on 28th August 2018. The report appears at pages 392 to 395 of the hearing bundle and it was sent to the Respondent the day after the appointment had taken place.

[159]There was a delay in the recommendation for a psychological assessment to take place being actioned. We remind ourselves in this regard that the report with that recommendation was sent to the Respondent on 24th April 2018. The assessment did not take place until four months later. However, it is abundantly clear from the response to a complaint which the Claimant later made about a number of issues to occupational health directly that the reason for that fell not on the Respondent but on occupational health itself. That occupational health provider was an external agency and not part of the Respondent Trust. The relevant part of the response to the Claimant’s complaint dealing with the issue of delay appears at page 449(2) of the hearing bundle and said as follows: “Delay in psychological assessment My investigation has highlighted that the delay in the psychological assessment occurred due to a failure in our administration procedure.10 Sarah Cooper11 emailed Penny Grasby on the 8.6.18 to authorise the assessment to go ahead. Unfortunately, due to Penny’s absence, arrangements were not in place for anyone else to pick up the email. My records highlight that Leanne Featherstone called Occupational Health on the 24.8.18 to chase the status of this assessment. Once this was brought to our attention an appointment was arranged for the 28.8.18. I would like to apologise for the distress that this caused you; however, there should have been no delay to the treatment plan that was in place through your primary care. We have recently procured a new medical database, which enables managers and employees to review the status of individual case through a secure portal. Therefore, I would not expect a recurrence of this incident as we now have a system that can highlight any outstanding actions and taken action in real time.”

[160]Whilst the Claimant is critical of Leanne Featherstone for not chasing matters up earlier than 24th August 2018, ultimately that has to be looked at in the context of the reality of the situation. There was awareness that a process had already been put in place to seek to arrange the assessment and it had been assumed, not unreasonably, that steps were taking place at occupational health to deal with that. In addition, this was not a case which Leanne Featherstone was dealing with in isolation. The evidence of Gill Stevens was that any one time, around 200 to 250 members of staff could be off sick. They all had to be dealt with and it was not just the Claimant’s case that Leanne Featherstone was responsible for monitoring.

[161]Whilst it is unfortunate that matters were not chased up before, this was understandable and it was certainly not done, as the Claimant contends, to deliberately delay the assessment being undertaken and in consequence to also cause a delay to her injury benefit allowance application. That was impacted because, as we have set out above, under the relevant Policy it was necessary to await all available medical evidence before a decision was taken on the application.

[162]The Claimant also complained to occupational health that there had been a 10 Reference to “our administration procedure” is to occupational health and wellbeing of the University Hospitals of Derby and Burton, which is a completely separate entity to the Respondent Trust and with whom they had a contract to provide occupational health services. 11 Sarah Cooper was providing HR support within the Respondent at that time. difference in the terminology used and that also featured in much of the evidence before us. That was that occupational health had recommended a psychological assessment whereas when Sarah Cooper of HR had emailed to authorise the assessment, she had referred to a psychiatric assessment. That was clearly just an error in terminology and no more than that.

[163]As we have already observed, the psychological assessment report was sent to the Respondent on 29th August 2018. That report apologised for the amount of time that had passed since the recommendations had been made. Again, it is evident in that regard that the delay was on the part of occupational health and not on the part of the Respondent.

[164]The report is a lengthy one and so we do not rehearse the entire content here but the relevant part said this (see pages 392 to 394 of the hearing bundle): “I am sure you are aware that Jackie feels the main cause of her distress that has resulted in her sickness absence is related to the breach of appropriate confidential information management of her personal information whilst in employment with the Trust and how her reporting this issue has been dealt with. Jackie reported that she had discussed this issue with the Freedom to Speak Up Guardian. The events that Jackie described about how she felt she was treated following her report of the breach of confidential data management illustrate that Jackie does not feel she can trust the Hospital’s policies, procedures and Senior Management.”

[165]The report also set out the psychologist’s opinion that the Claimant was not fit to undertake her normal role when she was assessed and that it was difficult to offer a timeline in which she may be able to return to work. It also reported that the Claimant had said that she did not feel able to return to her normal role or to be employed by the Respondent due to the loss of trust that she had and that redeployment was a hard option for the Claimant to consider at that point although, with treatment from Talking Mental Health Derbyshire, the position might change as it also might with cognitive behavioural therapy that the Claimant was due to begin. Unfortunately, that improvement did not ultimately happen.

[166]Upon receipt of the psychological report, Gill Stevens in her capacity as Head of HR made a decision in relation to the injury benefit allowance application. That decision was communicated to the Claimant on 26th September 2018. We are satisfied that it was appropriate to await the outcome of the psychological assessment before that decision was made because although it delayed matters that was entirely in line with section 22.4 of the injury benefit allowance policy which required all relevant medical evidence to have been gathered before a decision was taken. There can perhaps be little doubt that if the Respondent had pressed ahead without the psychological report to make an earlier decision that there would have been issue taken – and quite rightly - about that.

[167]The decision of Gill Stevens was to refuse the application for injury benefit allowance and her reasons for doing so were this (see page 404 of the hearing bundle): “Having read the report from the psychologist, it is my understanding that you were clear that the main cause of your current period of sickness absence relates to a breach of your personal, confidential information and how this matter has been dealt with. Unfortunately the Trust is not able to pay temporary injury allowance in these circumstances. The NHS terms and conditions of service handbook, Section 22 NHS injury allowance states that: injury allowance cannot be considered where the individual is on sickness absence where there is a dispute relating to employment matters.”

[168]Whilst the Claimant is quite right that the policy guidance which we have set out above relates to not automatically withholding injury benefit allowance where that arises from issues of bullying and harassment, that misses the point. The Claimant’s ill health absence had not been triggered by the matters which she alleges amounted to bullying by Sue Wootton but by the issue about the data breach. Even at the point of 30th March 2018 when that incident occurred, the Claimant had procured a further sicknote and was not going to be returning to work at that stage. Her ill health absence flowed directly from the issue of the data breach as was clearly set out in the psychologist’s report and that is also precisely what she told occupational health. That was a dispute relating to employment matters and it was also an ongoing dispute because the Claimant did not accept the outcome of the investigation, the apology and the steps that had been put into place to make sure that the issue did not happen again. Gill Stevens therefore followed the policy and the guidance in refusing the Claimant’s application.

[169]In all events, even had that not been the case then the guidance was clear that each case had to be decided on its own merits. It did not automatically follow that if the employment dispute related to an allegation of bullying which had been complained about then injury benefit allowance would always be awarded. The Respondent retained a discretion depending upon the facts of the case.

[170]There appeared to be some suggestion made on behalf of the Claimant that the injury benefit allowance should have been awarded anyway, irrespective of whether she met the eligibility criteria, on the basis that she was in difficult financial circumstances because her pay had reduced. However, that overlooks the fact that there would no doubt have been criticism of Gill Stevens by the Respondent for going outside the terms of the policy if the Claimant was not entitled to the allowance and also that consideration had to be given to the fact that this was public money which was being spent. We therefore find nothing wrong in the decision of Gill Stevens to refuse the Claimant’s application as that was entirely in accordance with the relevant policy. Her evidence was that the Claimant’s grievances had nothing to do with that because complaints being made in HR terms was an everyday occurrence. We accept that evidence and that neither of the two grievances impacted upon her decision in any way.

[171]Gill Stevens’ decision letter also asked the Claimant to attend a meeting on 15th October 2018 to discuss her ill health and how the Respondent Trust could provide support. That meeting was to be with Jamie Temlett, Acting Senior Matron in Medicine and Emergency Care, and Leanne Featherstone. By that time, Mr. Temlett had taken over as the Claimant’s point of contact in relation to her ongoing ill health absence.

[172]The Claimant wrote to Gill Stevens on 1st October 2018 raising a grievance about the refusal to allow her injury benefit allowance. That was processed by the Respondent, not unreasonably, as an appeal against that particular decision (see pages 407 to 408 of the hearing bundle). The Claimant’s appeal was referred to Rachel Whyman, who was the then Head of Nursing, Medicine and Emergency Care. The Claimant was invited to an appeal meeting on 29th November 2018 but was unable to attend because of her ill health. She confirmed that she wanted the matter to be considered in her absence and an outcome decision communicated to her.

[173]By letter dated 6th December 2018. Rachel Whyman dismissed the Claimant’s appeal. Her rationale said this (see page 423 of the hearing bundle): “I can confirm that I thoroughly considered all the documentation received in relation to this appeal and the previous decision made by Gill Stevens, Head of Human Resources. The documentation received clearly outlines how you have reported feeling as a result of the on-going employment disputes you have experienced and your subsequent sickness absence due to dealing with these feelings. Although no confirmed diagnosis is provided, the psychologist report indicates that you have been proactively seeking to support your wellbeing through taking up specific support treatments. As the documentation provided is clear that your current sickness absence is related to an employment dispute, I have reached a conclusion to uphold the decision made by Gill Stevens. The Trust is unable to pay injury allowance in these circumstances. The NHS terms and conditions of service handbook, Section 22 NHS injury allowance, states the following in the eligibility criteria. The following circumstances will not qualify for consideration of injury allowance:• sickness absence as a result of disputes relating to employment matters, conduct or job applications This is the Trust’s final decision on this matter.”

[174]We accept the evidence of Rachel Whyman, which was consistent with her appeal outcome letter, that that was the genuine reason why she reached the conclusion that she did. Again, for the same reasons as we have set out in relation to the decision made by Gill Stevens, that outcome was in accordance with the relevant policy. Outcome of the Claimant’s second grievance

[175]On 8th June 2018, Gary Durrant wrote to the Claimant with the outcome of her grievance concerning Kaye Smedley and Sue Wootton. Whilst that took place over a month since the Claimant had been interviewed by Mr. Durrant, we bear in mind that there were other interviews to undertake and we do not consider the timescale in which this matter was dealt with to be unreasonable.

[176]The relevant parts of Mr. Durrant’s letter dealing with the outcome of the grievance said this (see page 342 of the hearing bundle): “I believe that it is clear that Matron Wootton’s behaviour on 30th March 2018 was inappropriate; however it does appear that she was trying to rebuild your relationship and did not intend to cause you further distress. Matron Smedley reflected that in hindsight she should have ensured that a private room was available in which to hold the absence review meeting with you but I do accept her account that she did not expect anyone else to be present in the Portacabin that day, owing the fact that it was a Bank Holiday. I understand that Senior Matron Wain had previously fully investigated an alleged breach of confidentiality, and as a result of that investigation had put measures in place to avoid a repeat of such a situation. I can find no evidence to suggest that a further data protection breach has occurred or that Senior Matron Wain has discouraged you from raising further concerns. Taking everything into account, my decision is not to uphold your grievance. Whilst I acknowledge that you genuinely felt bullied and harassed, I can find no evidence to support your view that this was a deliberate campaign of victimisation by Matron Wootton.”

[177]The letter concluded by indicating that there had been a thorough investigation, that the Claimant’s concerns had been taken seriously and confirming that she had a right of appeal to Rachel Wyman if she was dissatisfied with the outcome.

[178]We should observe that Mr. Durrant made no finding that Sue Wootton had shouted at the Claimant in the way that she alleged and we accept his evidence that the reference to her conduct being inappropriate related to the fact that she should not have been there and should not have approached the Claimant but he found her intentions in doing so had simply been to try to repair the relationship. In those circumstances, that was the reasoning for not upholding the grievance. We should observe, however, that the rationale and the evidence relied upon to reach it should have been set out in far more detail and made much clearer so that the Claimant was able to fully understand why the decision was as it was.

[179]The Claimant exercised her right of appeal to Rachel Whyman on 15th June 2018 (see pages 247 to 251 of the hearing bundle). The appeal letter was a lengthy one and we do not therefore set it out in full here, but the Claimant referred to the NHS Handbook and Dignity at Work Policy and particularly paragraph 32.11 of that policy which set out that it was for the recipient of any conduct to define what is inappropriate behaviour.

[180]The Claimant attended an appeal hearing with Becky Sutton, General Manager of Medicine and Emergency Care Division, on 30th August 2018. The following day she sent a lengthy letter. Again, it was a thorough and lengthy letter and we do not need to set out the entire content. However, it was confirmed that the reason that Gary Durrant had made a comment that he would get a different account from others in the initial grievance meeting was that he had been talking generally about when undertaking an investigation there tended to be a receipt of differing accounts and sometimes it was a case of one person’s word against another. That was consistent with Mr. Durrant’s evidence before us. It was clarified by Ms. Sutton that the issues that the panel were looking to determine were whether the process followed during the investigation was appropriate and whether the decision arrived at was reasonable in all the circumstances.

[181]The decision taken on appeal was to uphold the Claimant’s grievance. The relevant part of the panel’s decision within the outcome letter said this (see page 401 of the hearing bundle): “The panel heard your view of bullying and considered the definition contained in the Dignity at Work policy. After careful consideration, the panel believe that the management case did not consider the definition in the policy in enough detail and agree that one incident of bullying behaviour can constitute bullying. The panel took into account the fact that management found there to have been inappropriate behaviour on Matron Wootton’s part. The panel concluded that given it had been acknowledged that Matron Wootton’s behaviour was inappropriate and having heard the accounts provided at the hearing and read the documentation provided prior to the hearing, it would not be unreasonable to conclude that you felt bullied by her behaviour on 30 March. Having taken all the evidence presented at the hearing into account, the panel conclude that your appeal should be upheld. The panel confirm that there were issues with regard to process and the decision reached. With regard to process you should have been provided with a more detailed response as to why the decision was reached. With regard to the decision the panel did not feel this was a reasonable conclusion to reach given the acknowledgement you felt bullied by the incident that occurred on 30 March. The panel conclude that the investigation should not have relied on a deliberate campaign of victimisation by Matron Wootton as the basis for the decision as this was not the basis of your complaint.”

[182]The report made a number of recommendations and that was particularly around training in relation to the health and attendance policy for members of the management team.

[183]We accept the evidence of Ms. Sutton that whilst she upheld the Claimant’s appeal that was in relation to the wording of the particular policy but she did not view the actions of Sue Wootton objectively as being such as to amount to bullying. Instead, it was the acknowledgment that the Claimant had felt bullied and her perception in that regard was sufficient to uphold the appeal according to the relevant policy.

[184]It is common ground that the paperwork for the second grievance appeal was hand delivered to the Claimant’s home. That is complained of as an act of detriment given that it was handed to a neighbour rather than to the Claimant personally.

[185]We accept the explanation provided by Gill Stevens who delivered that paperwork as to how this came to be the case. She wanted to ensure that the Claimant received the paperwork at the earliest possible opportunity to have time to thoroughly consider it before the appeal hearing took place. She therefore attended the Claimant’s property to deal with that. She did not feel it appropriate to knock on the Claimant’s door because she was concerned that the Claimant may be distressed to see someone from the Respondent there when she had not been expecting it. She had therefore intended to post the documentation through the Claimant’s letterbox. However, the letterbox was not of a normal sort and the paperwork which she had to deliver was too thick to fit inside. She did not think it appropriate to leave the documents, which were personal to the Claimant, hanging halfway out of the letterbox. As she was at the property a neighbour of the Claimant approached the front door to go in. She accordingly asked him if he was going to see the Claimant and when he replied in the affirmative she handed the paperwork to him, which was marked private and confidential, and asked him to give it to the Claimant.

[186]Whilst Ms Stevens sensibly accepts that in hindsight it would have been better not to have done that, we accept that that step was not taken to in any way upset the Claimant and it was simply done to make sure that she got the relevant paperwork at the earliest opportunity and given the problems leaving it in the letterbox. Ms Stevens apologised to the Claimant during the course of the hearing before us for any distress that that situation had caused and we considered that apology to be genuine and sincere. Involvement of Mr. Stringfellow and contact arrangements with the Claimant

[187]On 20th June 2018, Leanne Featherstone contacted Gill Stevens with regard to Mr. Stringfellow. Her email said this (see page 354 of the hearing bundle): “I’m really struggling with this man I feel he’s harassing us (I have constant emails from him and he questions absolutely everything) and I find him intimidating and I would like to escalate it. Gill can we have a conversation about this at some point please?”

[188]Sarah Cooper responded to that email as to the comments that had been made and asked if she could also join in that conversation because she equally had concerns.

[189]Such concerns were not only the perceptions of those employed by the Respondent as there had been concerns raised by external occupational health about, if we may call it that, Mr. Stringfellow’s somewhat interventionist approach at the first occupational health assessment which had significantly lengthened the time that it had taken to conclude it. The concerns of occupational health were recorded in an email between Sarah Cooper and Leanne Featherstone of 21st June 2018 in that the occupational health adviser had described Mr. Stringfellow as “quite unhelpful” in a conversation that they had had after the assessment session (see page 356 of the hearing bundle). We mention these matters only because they reinforce the findings that we have made in respect of Mr. Stringfellow’s approach at the 30th March 2018 meeting. We accept that all of those concerns were genuinely held. We make no criticism of Mr. Stringfellow in that regard as we accept that it is difficult not to become emotional or overly involved where a loved one is concerned, but merely to indicate that the comments inform other findings of fact that we have made.

[190]That same email recorded that Sarah Cooper had assumed that once she had received confirmation from Rachel Whyman that the assessment would be paid for by the Respondent and communicated that to occupational health, that it would be acted upon. As we have already observed it was not because by that point the occupational health adviser had suffered an episode of ill health and was on sick leave as a result. Arranging the assessment was therefore overlooked and as we have set out above that error was admitted by occupational health.

[191]Given the difficulties that the Respondent felt that they faced with Mr. Stringfellow they determined that they would prefer to communicate directly with the Claimant herself which would also ensure that she was in the loop about what was happening. Leanne Featherstone therefore emailed Mr. Stringfellow on 22nd June 2018 saying that she would like to liaise with the Claimant directly. Mr. Stringfellow provided the Claimant’s email address as he indicated she did not feel able to speak by telephone. Rachel Whyman also made the same point on 25th June 2018 when she reminded Mr. Stringfellow that although the Claimant was unwell as she was the Respondent’s employee and they did need to communicate directly with her regarding any matters referring to her employment (see page 364 of the hearing bundle).

[192]Pending the outcome of the second grievance that the Claimant had raised, management of her sickness under the health and attendance management policy had been paused. That was also done to await the outcome of the psychological assessment which was a sensible step as that report informed the position on a return to work (see page 386 of the hearing bundle).

[193]Mr. Stringfellow indicated to Leanne Featherstone that he had not received any contact in relation to what he described as his complaint after the incident of 30th March 2018. He requested the email address of the Respondent’s CEO, which was duly provided. He wrote a detailed letter, much akin to his initial complaint, to the Respondent’s CEO on 13th August 2018. That was almost immediately acknowledged with an indication that a response would be forthcoming once matters had been investigated.

[194]On 20th August 2018, Mr Stringfellow was sent a detailed response the Respondent’s CEO, Simon Morritt. The response expressed concern for the Claimant’s welfare and provided details of a confidential counselling line. It also referenced the investigation of the data breach and gave an assurance that changes to practice were implemented to ensure that nothing of a similar nature could occur in the future and that he had been assured that Matron Wootton had provided a clear apology to the Claimant. He provided an apology for any inappropriate behaviour that had taken place on 30th March 2018 and that the situation was being reviewed by Gill Stevens in accordance with the dignity at work process and policy. In relation to arrangements for the appeal hearing, there was a reference to the fact that Mr. Stringfellow was not permitted to attend that particular meeting but could sit outside to provide support during adjournments.

[195]In view of those matters, he invited the Claimant to contact a Jennifer Smith, the Respondent’s Deputy Director of Workforce and Organisational Development, and he provide a contact number so that arrangements could be put in place for someone within the Respondent organisation to provide support to the Claimant at the meeting. As to a reference that had been made to the Claimant feeling isolated during her absence, Mr. Morritt also arranged for Jennifer Smith to review the contact and support provided to date with Leanne Featherstone. It was also suggested that the Claimant may wish to agree a communication plan with Mike Hedland and that Leanne Featherstone would be in touch with the Claimant directly to discuss and agree any additional support which may be helpful. Health and attendance review meeting and EMDR treatment

[196]On 15th October 2018, the Claimant attended a health and attendance review meeting with Jamie Temlett and Leanne Featherstone. That had been referred to in the letter from Gill Stevens determining the injury benefit allowance application at the first stage. By that time the Respondent had of course received the psychological report and so the pausing of the managing attendance process had ended.

[197]At that meeting, the Claimant requested that the Respondent give consideration to funding private sessions of Eye Movement Desensitisation Reprogramming (“EMDR”) therapy which we understand to be a form of treatment used with people who have suffered trauma and, particularly, who suffer with post traumatic stress disorder.

[198]It was agreed that Leanne Featherstone would look into that and provide a response. We accept the evidence of the Respondent that EMDR treatment was not something that they had been asked to consider previously and there was not a real understanding of what it involved and what the likely costs and benefits would be.

[199]It was also agreed as per the recommendation from Mr. Morritt that a contact plan was put in place with Mr. Temlett and that the Claimant would receive or have fortnightly contact. It was also agreed that there would be a second occupational health review to assist in the Claimant making a return to work. The position in relation to redeployment was also discussed (see pages 410 and 411 of the hearing bundle) although as we shall come to below that was not eventually feasible.

[200]After that point, Mr. Temlett wrote a detailed letter recording what had been discussed to the Claimant. That was dated 25th October 2016 although the date should of course have been 2018.

[201]On 22nd October 2018 Leanne Featherstone sought to advance the issue of EMDR therapy and asked the Claimant the cost per session and how many sessions she had been advised to have. The Claimant replied the following day to say that she would ask her therapist for her recommendations about the cost and treatment period (see page 409 of the hearing bundle).

[202]On 1st November 2018, the Claimant reverted to Jamie Temlett rather than Leanne Featherstone in relation to the EMDR cost. She said that the therapist had advised her that it would be a long-term therapy and was unable to give a time limit on the amount of sessions required but that the cost from a private therapist ranged from £60.00 to £90.00 per session and that there would have to be a paid for assessment with an EMDR therapist so that they could decide how long they felt that the Claimant would need therapy for.

[203]The matter was not advanced by Jamie Temlett at that stage and was instead picked up by Rachel Whyman at a later point and we shall come to the decision that she made in that regard below. We do not know precisely because of the passage of time why Mr. Temlett did not advance the matter himself at that time but we accept that he did not do so intentionally and any delay on his part was likely to have been an oversight. Further occupational health appointment and report

[204]Mr. Temlett arranged a further referral to occupational health for the Claimant on 7th November 2018 (see pages 415 and 416 of the hearing bundle).

[205]The Claimant’s occupational health assessment was arranged for 13th December 2018 and, again took place with an external provider, namely the University Hospitals of Derby and Burton NHS Foundation Trust. The Claimant asked Jamie Temlett for a copy of the occupational health referral but he was not able to provide that because he had only sent a paper copy. He suggested that the Claimant ask for a copy of that referral when she attended the session and that he could not see there being an issue with it being provided.

[206]The Claimant attended the occupational health assessment on 13th December 2018 and following that a second occupational health report was sent to the Respondent. This was sent directly to Mr. Temlett. The relevant parts of the report said this (see page 424 of the hearing bundle): “As you are aware Jackie has been on sick leave for a year with diagnosed anxiety and PTSD due to her work situation which has been extensively documented in previous Occupational health reports. On the basis of my assessment today Jackie’s mental health condition remains unchanged despite the therapy she has had. There is no prospect of her returning to her job or working for the Trust in any capacity again and therefore redeployment is not an option. I have advised her that she could apply for Ill Health Retirement under the pension scheme rules but she is unlikely to meet the criteria. I would advise that in the best interests of Jackie’s mental health that you end her employment with the Trust as soon as possible as repeated meetings and referrals to Occupational health only cause her more anxiety and upset.”

[207]The Claimant did not disagree with the content of that report or the recommendation that it made that her employment be terminated although, as we shall come to, she did appeal the later decision to dismiss her.

[208]On 1st February 2019, Sam Wain wrote to the Claimant to invite her to a stage two health and attendance review meeting in view of the content of the occupational health report. That meeting was arranged for 6th February 2019 and the Claimant was accompanied by her husband.

[209]Ms. Wain wrote to the Claimant the day after the meeting setting out that she had confirmed at that meeting that the contents of the second occupational health report were a true reflection of what had been discussed with the clinical nurse specialist that she had seen on the day.

[210]At the meeting the Claimant had again raised the issue of payment for private EMDR treatment because of a delay in NHS waiting times for that particular course of treatment. Ms Wain asked that the details be forwarded to her so that she could look into the matter further and apologised to the Claimant for her not having previously having received a response about that particular proposal.

[211]The letter from Ms. Wain set out that in view of the content of the occupational health report and the fact that there could be no prospect of a return to work, the Respondent would be moving to stage three of the health and attendance management review and that that may result in the termination of the Claimant’s employment with the Respondent. It was agreed that Ms. Wain would now be the Claimant’s point of contact throughout her absence and that they would communicate via email every two weeks unless the Claimant wanted contact at any other point. Stage three review meeting and the termination of the Claimant’s employment

[212]Gill Stevens wrote to the Claimant on 8th February 2019 inviting her to the stage three review meeting. Ms Stevens indicated that Mr. Stringfellow could be in attendance for support after outlining her right of representation generally. She indicated that Mr. Stringfellow would not be able to state the Claimant’s case or ask questions on her behalf. Again, that arose from concerns about his approach which we have already touched upon above and do not need to rehearse here.

[213]On 6th February 2019 the Claimant sent details to Sam Wain of the EMDR therapy, including potential costs. This was a matter which was picked up by Gill Stevens at the stage three review. The Claimant was informed that Sam Wain had raised the issue of EMDR therapy and discussions were taking place and so no firm answer could be given on the matter at that time (see page 456 of the hearing bundle). The Claimant was later advised by follow up email that the matter of the EMDR would be picked up at the stage three review meeting (see page 461 of the hearing bundle).

[214]On 15th February 2019, Sam Wain wrote to the Claimant again setting out details of the stage three meeting and attaching all relevant documentation that the Respondent wanted to consider. The Claimant was invited to send any documentation or information in support of her case to Gill Stevens. The letter set out that the outcome of the attendance hearing could be one of the following (see pages 463 and 464 of the hearing bundle):• that further support should be considered to improve the Claimant’s attendance within a set timescale for review;

• that the policy had not been followed correctly resulting in her being placed at the wrong stage of the process and if so that would be rectified through a decision to go back and review the correct stage of the process; or

• that all support options had been fully considered and that the process had been followed correctly and that would result in the termination of the Claimant’s employment on the grounds of capability due to her ill health.

[215]In connection with that, the Claimant put in a statement of case to be considered at the hearing (see pages 475 and 476 of the hearing bundle) which raised complaints about earlier stages and decisions which had been taken by the Respondent in relation to issues such as EMDR therapy, the reduction in her pay when she exhausted entitlement to contractual sickness pay, that she had been bullied and harassed and that she suffered from depression, stress, anxiety disorder and PTSD. She explained at the conclusion of that statement the effect that all of those things had had on her.

[216]The hearing took place on 4th March 2019 following with Rachel Whyman. Ms. Whyman was afforded HR support at that particular meeting by Gill Stevens and Mr. Stringfellow was also in attendance to support the Claimant.

[217]Afterwards Ms. Whyman wrote to the Claimant with a detailed outcome. The outcome letter recorded that the Claimant could not see herself returning to the hospital site in any capacity in the future and that there was nothing that she could see that could support her in a return to work. It similarly recorded that the Claimant had been told that she was to have her employment terminated upon 12 weeks’ notice and she was given summary reasons for that. The letter set out in further detail all of the rationale as to why Ms. Whyman had concluded that the termination of employment was the appropriate option.

[218]The relevant parts of the outcome letter said this (see pages 480 and 481 of the hearing bundle): “I have carefully considered and reflected on the information I received ahead of the meeting and what we discussed during the meeting itself. In terms of the management of your absence I acknowledge that there was confusion about whether a stage one meeting had in fact taken place. I understand you are clear that this had not taken place, however, had the meeting gone ahead on 30 March as intended then the policy allows for the stage one meeting to take place directly after this same return to work meeting. I appreciate the circumstances around why this meeting did not happen and believe the possibility for a stage one meeting at this point could have been made clearer. I have reviewed the other meetings that took place and feel assured that these meetings were held in line with our Health and Attendance Management Policy. I am also clear though that there was a significant gap between meetings and it should have been made clearer to you that the absence process had been paused due to the grievance process that was ongoing at that time. I have also referred to the Health and Attendance policy and section 11.4 allows for a meeting to take place when it becomes clear an employee is permanently unfit or will remain unfit for the foreseeable future regardless of what stage an individual is at in the attendance management process. I consider that the advice in the most recent occupational health report allows for this part of the process to be used. Having heard the information in the hearing, I am clear that the Trust could have been better at maintaining contact with you and on reviewing the information provided I have noted the number of people involved in keeping in contact with you was too high. It is unfortunate that the people handling your case have changed due to varying circumstances and I acknowledge that this has made it more difficult to maintain effective contact with you. I believe the Trust could have made this easier for you and could have maintained contact at more regular intervals throughout the time you were off work. I noted your comments throughout the hearing about the referrals to occupational health and have also considered your responses when questioned about the opportunities you had had to discuss your ill health with colleagues in occupational health. I feel that you received ample opportunity to explain the circumstances surrounding your ill health to different clinicians including a psychologist and based on the reports we received from them I believe they provided advice to the Trust based on what they were informed by yourself in addition to the referrals received. We discussed the possibility of you returning to work for the Trust and I did not receive any assurance from you that you would be able to return to work in any capacity at the Trust. You did not disagree with the contents of the most recent occupational health report, which stated that ‘I would advise that in the best interests of Jackie’s mental health that you end her employment with the Trust as soon as possible’. You were also unable to provide a timeframe by which you may be able to make a decision about returning to work. I reviewed your levels of absence in line with the Trust’s health and attendance management policy and can see that at the time of writing her report, Sam confirmed that you had had 468 days of absence since December 2017. In addition, I did however note the reasons for your absence. During the hearing unfortunately you were not able to give me any assurance that your current period of absence would cease and you would be able to return to work in the foreseeable future. Overall therefore I concluded that given the advice the Trust has received from occupational health about the prospect of your returning to work, the ongoing nature of your current absence and unknown longevity and the lack of assurance as to when you may be fit to return to work, I do not believe the Trust can continue to sustain your ongoing absence from work. My decision therefore is to terminate your contract of employment on the grounds of capability due to ill-health, your last day of employment with the Trust will be from the date of this letter. You have the right to appeal this decision. To do so, you must write to Jennifer Smith, Deputy Director of Workforce and Organisational Development, within 14 calendar days of the date of this letter, clearly outlining your grounds of appeal.”

[219]The Claimant was informed that she would be paid 12 weeks’ in lieu of notice along with any outstanding annual leave that had accrued. The letter also considered the position in relation to EMDR therapy and the relevant part of the letter said this (see page 481 of the hearing bundle): “During the hearing it was confirmed that we would use the hearing as an opportunity to consider your request for funding for EMDR therapy sessions. Having reviewed the paperwork you submitted for the hearing and having listened to the information you provided about the therapy I now have a better understanding of what this therapy is. However, you were not able to provide any assurance that accessing this therapy would result in you being able to return to work. I do, however, acknowledge that there has been a delay in making the decision about the funding. I also understand that you did not place yourself on the NHS waiting list due to waiting for an answer from the Trust. In recognition of this I am willing to pay for an initial assessment for you with a therapist that the Trust can put you in touch with. This initial assessment may help you in further defining what the therapy can offer and how many sessions you may need. Should you wish to accept this offer please let Gill Stevens know via email by 18 March 2019. Any further sessions that would be recommended would have to be funded by you.”

[220]The Claimant did not take the Respondent up on their offer in respect of paying for an initial EMDR therapy assessment and, as far as we are aware, she has not availed herself of EMDR therapy under the NHS. Appeal against dismissal

[221]The Claimant emailed Rachel Whyman on 15th March 2019 indicating her intention to appeal against her dismissal. She sent in a brief statement of the grounds of her appeal on 25th March 2019 and she sent those both to Jennifer Smith and for Rachel Whyman to forward onto Jennifer Smith.

[222]The grounds that the Claimant set out for appealing against the decision to terminate her employment were as follows (see page 484 of the hearing bundle): “I believe that there was insufficient consideration taken in reaching a decision to dismiss me of the fact that my illness was initially caused and then exacerbated by the actions of the Trust. The failure to maintain my data, subjecting me to abuse for raising the disclosure and then isolating me and failing to genuinely try and assist me back to work in a timely manner have all impacted on my ability to work again. I believe that not only did unreasonable rejection of my injury allowance application exacerbated my stress, I do not believe an employee with a physical disability would have been treated in the same way. This does not appear to have been addressed in the outcome letter. There is no evidence at all that any steps were taken to consider whether I was eligible for ill-health retirement. I have sent this appeal within 14 days of receipt of the dismissal letter from Rachel Whyman, as it was dated the 4th March 2019 & I did not receive it until the 14th March 2019 & it was postmarked the 12th March 2019.”

[223]It appears to be common ground that no steps were taken to advance the Claimant’s appeal against her dismissal. The reasons for that are not known by this Tribunal and we did not hear from Jennifer Smith about the issue. Given that there is no unfair dismissal claim or complaint about the appeal not having been dealt with, however, we do not find it particularly unusual that she was not called as a witness and it is not a matter sufficient to found an inference that anything untoward had taken place in respect of the appeal issue.

[224]Although the Claimant did appeal, she does not dispute that she would not have been able to return to work for the Respondent in any capacity. Ill health retirement application

[225]Prior to the termination of her employment the Claimant had applied for ill health retirement. Whether or not an application for ill health retirement is granted is not a matter over which the Respondent has any control as that lies with the pension scheme providers to determine whether the criteria for ill health retirement is met or not. The termination of the Claimant’s employment did not affect her ability to continue to apply for ill health retirement as we understand that could have still taken place even after employment had ended. Whilst the position is not entirely clear, it does not appear that the Claimant did in fact apply for ill health retirement at any stage by submitting the relevant application. However, she did express an intention to make that application.

[226]The processing of the paperwork to be sent to the Claimant in relation to an application for ill health retirement lay in this instance with Vicky Reddish who was an HR partner at the Respondent.

[227]The Claimant originally sought to apply for ill health retirement on 14th December 2018 and enquired of Jamie Temlett about the process to go through in that regard (see page 429 of the hearing bundle). Mr. Temlett replied the following day to say that Vicky Reddish was informing payroll services and would send the Claimant the relevant paperwork to complete. He asked the Claimant to let him know if she had not heard anything by the end of the following week and he would chase matters up on her behalf.

[228]The Claimant emailed Mr. Temlett again on 28th December 2018 to say that she had still not received the paperwork. He replied just over an hour later to say that he had copied Vicky Reddish into the email reply and he was sure that she would provide an update. Vicky Reddish did that the same day to confirm that she had received the paperwork late in the previous week but that unfortunately she had not yet had the opportunity to complete it due to the Christmas break. She indicated an intention to work through the paperwork the following week as she had to complete some sections before sending it on to the Claimant.

[229]The Claimant had still not received the paperwork by 9th January 2019 and again chased the matter up with Vicky Reddish by email (see page 428 of the hearing bundle). Vicky Reddish replied the same day to confirm that she had been intending to email the Claimant that day but that whilst going through the ill health retirement paperwork she had discovered that she had not seen the most recent occupational health report and she was chasing up a copy. She indicated that as soon as she received that she would send out the documents to the Claimant.

[230]The Claimant chased the matter up again on 17th January 2019 and Vicky Reddish replied the same day to say that it was anticipated that the paperwork would be finalised early the following week and posted to the Claimant at that stage. She apologised for the extended timescale, which she explained was due to having to gather all the necessary information to capture that on the ill health retirement form.

[231]Approximately two hours prior to receiving the Claimant’s email Vicky Reddish had in fact sent a copy of the form through to Gill Stevens for review and asked her to let her know if it was able to be sent to the Claimant. Gill Stevens replied on 22nd January 2019 to propose inclusion of additional detail in relation to the temporary injury allowance application. She provided some information around that for Vicky Reddish to in turn complete on the relevant forms which she could then supply to the Claimant.

[232]Vicky Reddish emailed the Claimant on 24th January 2019 confirming that she had now pulled all of the information together in terms of the application and it would be put in the post for the Claimant that afternoon. She offered her sincere apologies for the time that it had taken to send the documentation to the Claimant. We accept that those apologies were genuine.

[233]The Claimant received the ill health retirement paperwork on 24th January 2019. That was just over a month after she had first indicated her intention to make an application. Four days later she raised a complaint via Jamie Temlett that the form had in her view had not been correctly completed. She complained that some elements of the form were blank, some had pages stapled into them which she contended the pension provider would not accept and that some of the information was incorrect or had been completed in an inconsiderate manner. She also raised concern about what she referred to as a further data breach given that there was an extract from an occupational health report concerning another member of staff which had been stapled onto the form. That was particularly unfortunate of course given the Claimant’s ill health absence had been sparked by what she viewed as her own data breach.

[234]The Claimant asked that the paperwork be collected and that was subsequently arranged for the afternoon of 1st February 2019 and the documentation was collected by Gill Stevens.

[235]Corrected paperwork was subsequently provided to the Claimant, although as we have already indicated above, we remain unsure as to whether or not she did in fact subsequently forward that application to the pension provider.

CONCLUSIONS

[236]Insofar as we have not already done so, we now turn to our conclusions in relation to the claims which are before us. Protected disclosures

[237]We begin with the question as to whether one or both of the disclosures relied upon by the Claimant are protected disclosures within the meaning of Section 43B Employment Rights Act 1996.

[238]We begin with the first of those disclosures which related to the data breach. We are satisfied that there was a disclosure of information by the Claimant. She was not merely making an allegation or other statement but was clearly conveying information about the circumstances in which her Fit Note had come to be discovered in the off-duty file and the potential repercussions of that. We are also satisfied that the Claimant had a reasonable belief when making the disclosure that it showed that the Respondent was failing to comply with a legal obligation to which they were subject. The legal obligation that the Claimant clearly had in mind and as referenced in that particular disclosure was a breach of GPDR rules. We are also satisfied that the Claimant genuinely believed that that relevant obligation had been breached.

[239]The issue for the Claimant is whether she had a reasonable belief that the disclosure was made in the public interest. The Claimant appears to suggest that because she referenced the names of a small number of other members of staff whose Fit Notes had also been located in the same off duty file that is what amounts to the public interest element.

[240]We do not accept that. Reading the Claimant’s letter carefully and as a whole, it was clear that she was making complaints about matters which were personal to her. The inclusion of the names of two other individuals in similar circumstances did not detract from that. The complaint that she was making was that her personal data had been left accessible to others and the potential repercussions that that might have had for her. We are therefore not satisfied that the Claimant had a reasonable belief that the disclosures were made in the public interest as she was clearly raising an employment dispute about matters which were personal to her. There was no suggestion in evidence that there were wider concerns – such as in relation to patient confidentiality – that were at play when the Claimant made her complaints. Although there was reference to data protection issues, that was clearly focused firmly around the matter of the Claimant’s own Fit Note and the possibility of her personal information being unlawfully used. Accordingly, we do not find that that disclosure was a protected disclosure within the meaning of section 47B Employment Rights Act 1996.

[241]We should also observe that as well as relying on the disclosure showing that there had been a breach of a legal obligation the Claimant also asserted that it showed or tended to show that the health and safety of an individual was likely to be endangered. There was no reference to any issues about health and safety in that disclosure nor could there reasonably have been. We therefore do not find that the Claimant had a reasonable belief that the information disclosed showed or tended to show that the health and safety of any individual was being endangered. The situation was all about a data protection breach or the potential for one to occur.

[242]We turn then to the second disclosure upon which the Claimant relies, which is her grievance concerning the events of 30th March 2018. We are satisfied that that amounted to a disclosure of information. It went into detail about the Claimant’s version of events as to the 30th March meeting and we accept that what she recorded showed, or tended to show, that the Respondent was failing to comply with a legal obligation to which they were subject in relation to not subjecting employees to conduct which would amount to bullying and harassment.

[243]Again, we do not accept that there was any issue that the disclosure tended to show a danger to health and safety to individuals. At best and on the Claimant’s own case at its highest, this was a situation when she and her husband had been shouted at, although we have not found that that was made out in fact in the Claimant’s case but that cannot be said, nor did the letter suggest it, to be injurious to health and safety.

[244]However, again this part of the claim fails in relation to the public interest element. The Claimant did not hold a reasonable belief that she was making this disclosure in the public interest. It was about an altercation between herself and her husband and a member of staff at the Respondent Trust in the context of a meeting to discuss return to work arrangements.

[245]The Claimant has sought to suggest that because her husband was a member of the public and/or that some of the incident took place outside then this invokes some wider public interest element. We do not accept that nor that she had any reasonable belief that her disclosure was being made in the public interest. Again, what she complained of were matters that were personal to her. Mr. Stringfellow was attending the meeting as the Claimant’s companion given his relationship with her and for the purpose of providing support. He was not there as a member of the public. Moreover, this was not a public meeting; it was on Trust premises nor can it reasonably be suggested that simply because of the presence of Mr. Stringfellow it somehow has a wider public interest concern. The disclosure itself gave no indication that there was any public interest concern as to why the Claimant was raising these matters – such as again perhaps a threat to patient or other staff safety – nor has any been suggested in these proceedings. The disclosure was clearly centred around matters personal to the Claimant.

[246]We therefore do not find that the Claimant’s second disclosure amounted to a protected disclosure within the meaning of section 43B Employment Rights Act 1996.

[247]For that reason alone, all of the complaints of detriment contrary to section 47B Employment Rights Act 1996 fail and are dismissed.

[248]We have nevertheless gone on to consider, had we found those disclosures to be protected disclosures, whether the Claimant was subjected to detriment because of them. We deal with that matter below. We have approached the question of the burden of proof in this regard on the basis that we had made a finding that the Claimant had made a protected disclosure or disclosures although, of course, we have concluded to the contrary. Detriment contrary to section 47B Employment Rights Act 1996

[249]The first act of detriment complained of is the Claimant’s contention that she was verbally abused and bullied by her line manager in a public car park on 30th March 2018. We accept that that amounted to a detriment because of the way in which the Claimant perceived that she had been treated. As the Respondent found, she considered she had been genuinely bullied and harassed. However, as we have already set out above, we do not find objectively speaking that is what happened. Nevertheless, we accept that it amounted to a detriment because of the Claimant’s distress and the impact that it had upon her.

[250]We turn then to the question of whether what happened had been materially influenced by the Claimant’s grievance had we found that to have been a protected disclosure. The burden shifts to the Respondent to provide an explanation as to what caused this incident and that the grievance did not materially influence the actions complained of. Giving the timing, this act of detriment could only relate to the first disclosure relating to the data breach. We can see how the Claimant might consider that Sue Wootton had been materially influenced by the Claimant’s complaint about her particularly because she referenced the fact that she had apologised, been given a file note and asked the Claimant what else she could do. However, having heard the evidence of Sue Wootton we accept that that was not the case. We are satisfied that she was trying to repair the relationship with the Claimant and wanted to positively move forward before she returned to work. That was done in an unfortunate way with the benefit of hindsight, but we accept that what Sue Wootton did was not influenced in any way less still materially influenced, by the first grievance. Similarly, the raising of voices was not materially influenced by the first grievance but, we accept, from the interventions of Mr. Stringfellow and the contemporaneous documentation to which we have already referred is clear on that.

[251]We are therefore satisfied that Sue Wootton was not materially influenced by the Claimant’s first grievance and that she was, and remains, genuinely upset that she had caused the Claimant’s ill health absence. That was her reason for seeking to initiate a dialogue with the Claimant and her comments as to what more she could do were as a result of a lack of understanding about why she would not speak to her.

[252]However, even if we had found this complaint to be made out then we would in any event have dismissed it because it has been presented out of time. The incident occurred on 30th March 2018 but the Claimant did not present her Claim Form until over a year later. This was not conduct which extended over a period. It was a one off incident completely separate to the later acts of detriment complained of and involving different actors. It therefore falls to the Claimant to persuade us that it was not reasonably practicable to bring the claim in time. We are not persuaded on that front. There was nothing physically or mentally impeding the Claimant from bringing this claim in time. Whilst her mental health was affected, she was able to raise grievances and appeals, write lengthy correspondence and engage in meetings. It was therefore reasonably practicable to have presented this complaint in time and so we would have dismissed it also on that basis.

[253]The second complaint is that the Claimant contends that she was subjected to detrimental treatment on the basis that the Respondent failed to adequately consider her benefit injury allowance in a timely manner. The Claimant contends that the delay was detrimental to her because it placed her under financial pressure. To that end, we accept that the delay in dealing with the application was a disadvantage to her and therefore amounted to a detriment. However, we are not saying in this regard that the application was not dealt with appropriately and we come to that further below as to what the cause of that delay was.

[254]In this regard, we need to consider if those people who dealt with the injury benefit application were materially influenced by either of the grievances that the Claimant had raised. Again, the burden is on the Respondent in that regard.

[255]We are satisfied from the evidence that we have heard from the Respondent’s witnesses that the content of the grievances had nothing at all to do with the delay in processing the application. The main issue in relation to resolving the application related to the delay in awaiting the psychological assessment. As we have already observed above, the delay in relation to that matter lay at the door of occupational health and not the Respondent and was caused by the absence of the practitioner to whom the go ahead had been given to arrange the assessment. That consent had been given promptly by the Respondent. Whilst there was a delay in that being chased up by Leanne Featherstone, as we have already indicated above there was a perfectly logical and reasonable explanation for that.

[256]We are satisfied that she did not deliberately delay chasing the matter up or somehow otherwise engineer delay and we accept her evidence there is nothing whatsoever to suggest that she would have chased matters up earlier if the Claimant had not raised her first and second grievances.

[257]It was also not open to the Respondent to press ahead and determine the application without the psychological assessment because that was necessary under the terms of the relevant policy before a final decision could be taken. Again, had they pressed ahead without it, we have no doubt that the Claimant would – quite rightly - have raised that as an inadequacy and say that they should have awaited the outcome of that particular assessment before determining the application. For those reasons we accept that the grievances therefore had nothing at all to do with the delay in dealing with the injury benefit application and this complaint therefore fails and is dismissed.

[258]The next complaint of detriment relates to the rejection of the second review and on appeal of the injury benefit allowance application. The second review we understand relates to the decision of Gill Stevens given that the application had previously essentially been refused by Leanne Featherstone, albeit on incorrect and outdated information provided to her at that time.

[259]We are satisfied that refusal of the application amounted to a detriment to the Claimant because it financially disadvantaged her. We then turn to the question of whether we are satisfied from the evidence of the decision makers, Gill Stevens and Rachel Whyman, that the content of the grievances did not materially influence their decisions.

[260]We accept that neither of those decisions had anything to do with the fact that the Claimant had made the disclosures on which she relies. The reason for the decision was the specific application of the policy and that where there was an employment dispute which was the reason for the absence, then injury benefit awards are not applicable.

[261]The trigger for the Claimant’s absence was the data breach not the events of 30th March 2018 (i.e. not the allegation of bullying). That was clear from the occupational health reports and what the Claimant had told the practitioners during her assessments. There was clearly an employment dispute because the Claimant did not accept the outcome of the investigation and conclusion into her first complaint relating to the data breach. It continued to be an issue which rumbled on. It was also clearly an employment dispute because it was a complaint that the Claimant had made about the actions of another member of staff. It was that dispute and not the incident on 30 March 2018 which had caused the Claimant to become ill and so whatever complaint that she had made later about bullying and harassment, was not relevant to that position.

[262]As we have already set out, the occupational health reports were very clear in that regard as to what the cause of the absence had been. Whilst the “employment dispute” was the first grievance and the Claimant contends that the decisions were therefore materially influenced by that, we are satisfied that that is not the case. That is because it was not the content of the grievance or the grievance itself that caused the decisions to be taken but the application of the injury benefit allowance policy which determined that the Claimant was not entitled to that benefit. This complaint therefore also fails and is dismissed because the refusal of the injury benefit application in the first instance and on appeal was not in any way influenced, let alone materially, by either of the grievances.

[263]The next act of detriment complained of is the failure to complete the ill health retirement forms accurately or in a timely manner and in particular by enclosing personal data relating to another employee with the documents sent to the Claimant. It is difficult to determine if this caused detriment to the Claimant because the obvious disadvantage would be a delay to her making her application. However, it is far from clear whether the Claimant did in fact even make an application for ill health retirement after receiving revised forms. However, we can accept that the Claimant was disadvantaged as she suffered distress over this incident – and particularly the issue of receipt of personal data for another employee – and as such that she did suffer detriment.

[264]We then turn to consider why the application forms were not sent to the Claimant sooner and in a form which was acceptable to her the first time around. There was a delay of around five weeks between the Claimant initially indicating that she wanted to make her application for ill health retirement to her receiving the forms from Vicky Reddish. We accept her evidence that some of that period is explained away by the fact that Vicky Reddish and others were not at work during the Christmas and New Year break and the other delay thereafter, as explained to the Claimant at the time, were caused by the need to obtain and collate information. We remind ourselves of course that the Claimant’s case was not the only matter that Vicky Reddish was dealing with at the time and, whilst we appreciate that to the Claimant those matters were of utmost importance to her and she felt that they should be processed as a matter of priority, no doubt other employees with outstanding queries felt very much the same. The forms also had to be considered by Gill Stevens and additional work undertaken following her input. We are satisfied that there were therefore reasons given for the delays, which were supported not only by the Respondent’s evidence but also contemporaneous documentation which we have already referenced, and that those delays were not materially influenced by either of the grievances raised by the Claimant.

[265]There were deficiencies in the form sent to the Claimant and of course the confidential information of another individual should not have been stapled onto that form. However, we accept that that was simple an error on Vicky Reddish’s part. There is nothing at all to suggest that Vicky Reddish would have had any issue at all with the complaints that the Claimant had made and upon which she relies as protected disclosures and we accept her evidence that they did not influence her at all. The grievances did not name her, and she did not feature either directly or indirectly in them. They were essentially of little, if any, consequence to her. It is therefore difficult to see how it could be said that Vicky Reddish had in some way been materially influenced by the content of those disclosures so as to deliberately go out of her way to delay or inaccurately or improperly complete the ill health retirement form and that was plain from cross examination of this particular witness. There is simply no basis for that assertion, and it seems to rely on the same overarching suggestion that everybody within the Respondent organisation who took some action or inaction with which the Claimant did not agree was part of a conspiracy to punish her because she had raised her disclosures. However, ultimately, the burden having passed to the Respondent we accept that they have discharged it because we accept Vicky Reddish’s evidence that the grievances had no bearing on anything that she did in respect of the way that she completed the forms of the timing of their completion.

[266]The final act of detriment is said to be the handing of confidential information to the Claimant’s neighbour. That was an action taken by Gill Stevens in relation to the grievance appeal paperwork.

[267]We cannot see that this amounted to a detriment to the Claimant. There was nothing to suggest that she did not receive the documents or that they had been opened or tampered with in some other way. They were clearly marked and sealed private and confidential. It can only have been a matter of minutes, at most, that her neighbour had possession of them before they were handed to her. This is a situation where we consider the Claimant to have an unjustified sense of grievance about those particular matters.

[268]However, even if we had found that they amounted to detriment, it is plain that this action had nothing at all to do with the fact that the Claimant had raised either grievance upon which she relies. We accept the evidence of Gill Stevens that complaints of that nature are run of the mill for human resources and it is plain that Ms. Stevens did not bear the Claimant any ill will in respect of those matters. We accept entirely her evidence as to why she took the action that she did in respect of the delivery of the documents and that the grievances had nothing at all to do with that.

[269]All complaints of detriment therefore fail and are dismissed. Direct disability discrimination

[270]The Claimant also complains of direct disability discrimination in relation to firstly what is said to be an unreasonable delay in dealing with her injury benefit allowance application and secondly the rejection of the injury benefit allowance on 30th May 2018, 28th September 2018 and 6th December 2018.

[271]We remind ourselves that it is for the Claimant to prove facts from which the Tribunal could conclude, in the absence of a reasonable explanation to the contrary from the Respondent, that discrimination had taken place. The Claimant has not raised one fact from which an inference could be drawn nor were any put to the Respondent’s witnesses in cross-examination. The best that the Claimant has put forward is a bald assertion that if had she had a physical rather than mental disability, then she would have been treated differently.

[272]There is nothing to support such a contention and so the burden of proof does not shift to the Respondent. However, in all events having made the findings that we have above based on the evidence heard it is abundantly plain that all of the incidents of which the Claimant complained had clear nondiscriminatory explanations. The “reason why” there was delay in dealing with the injury benefit allowance application was because of the need to obtain all relevant medical evidence in accordance with the relevant policy. The occupational health report had recommended a psychological assessment be undertaken of the Claimant and it was necessary to await that in accordance with the very policy upon which the Claimant relies before the application could be determined. The delay, as is plain from the documentary evidence and the outcome of the Claimant’s complaint to occupational health themselves, was on the part of occupational health and not the Respondent. Those things were the “reason why” there was a delay and there is nothing at all to suggest that the Claimant’s mental health played any part in that.

[273]Insofar as the rejection decisions themselves were taken, it is plain from the documentation which we have seen and the evidence of Leanne Featherstone that the reason why she rejected the benefit application (if indeed it was a rejection rather than communication of non-entitlement) was because she had been given the wrong information upon which she mistakenly relied. It was not because of the Claimant’s mental health condition and there is simply nothing to support that suggestion. When it was pointed out that the information that she had provided was incorrect the matter was escalated to Gill Stevens who rejected the application, again not because of anything to do with the Claimant’s mental health, but because under the terms of the scheme she viewed her to be ineligible. We have already rehearsed the reasons for that above and we do not need to repeat them here. However, her decision had nothing at all to do with the Claimant’s mental health nor is there anything other than an assertion to that effect to suggest that it did.

[274]The same was true in relation to Rachel Whyman’s decision at the stage of appeal which was simply her interpretation of the facts of the Claimant’s case to entitlement under the terms of the relevant policy. None of those matters had anything to do with the Claimant’s mental health and there were no facts which can be shown to suggest to the contrary.

[275]The complaints of direct discrimination therefore fail and are dismissed. Failure to make reasonable adjustments

[276]We turn then to the complaint of a failure to make reasonable adjustments. None of these complaints get off the starting blocks. As was made plain at the Preliminary hearing before Employment Judge Broughton, the Claimant’s case was that there was:a. A practice of failing of not implementing occupational health recommendations in a timely manner or at all;

b. A practice of not maintaining regular contact with employees on long term sick leave;

c. A practice of failing to award injury benefit allowance or extending contractual sick pay after a set period of time;

d. A practice of not paying for EMDR treatment at all or in a timely fashion;

e. A practice of not providing ill health retirement forms in a timely and reasonable manner; and

f. A practice of failing to automatically comply with their sick pay policy in restarting the Claimant’s sick pay automatically after 12 months.

[277]The Claimant did not put a positive case forward that any of those practices were applied by the Respondent and there was no evidence of the same before us. In cross examination relevant witnesses were only asked the question as to whether such a practice was applied and put forward no basis for an assertion that any of the practices relied on where in place. All of the Respondent’s witnesses who were asked that question replied in the negative and we accept their evidence on that point. We therefore do not accept that there was any practice of doing any of the matters at paragraph 276 (a) to (f) above.

[278]The Claimant also appears to accept in her own closing written submissions that there was no practice of doing any of those things given the evidence given by the Respondent’s witnesses. Whilst she then goes on to argue as to why those things did not happen for her but should have, that ultimately misses the point because without there being a provision, criterion or practice (“PCP”) applied by the Respondent, the duty to make reasonable adjustments is not triggered. If the duty is not triggered then there can be no successful complaint of a failure to make reasonable adjustments and therefore on the basis that there was no practice applied in respect of any of the PCP’s identified above we need say no more about those matters.

[279]Those complaints accordingly fail and are dismissed. Breach of contract/unauthorised deductions from wages

[280]The final complaints are in relation to breach of contract and/or unlawful deductions from wages in respect of the failure to pay injury award benefit. Those complaints fail because in relation to the unlawful deductions from wages claim, those were not sums that were properly payable to the Claimant. Under the terms of the relevant policy, the Respondent had every right to deny payment. There was therefore no deduction of a sum that the Claimant was contractually or otherwise entitled to.

[281]Similarly, the breach of contract claim fails on the same basis because under the terms of the scheme, the Claimant was not entitled to those sums and the Respondent was entitled to withhold them. There was therefore no breach of contract as the Claimant did not have any entitlement under the relevant policy to payment of injury benefit award and the Respondent was therefore not in breach by not making payment to her.

[282]For all of those reasons, the claim fails and is dismissed.

[283]We recognise that this will come as a disappointment to the Claimant but she can be assured that we have listened carefully to all that she has told us and the evidence that we have heard. We also recognise how difficult the hearing and the process generally has been for the Claimant as a result of her mental health, the upset that the events that the claim is concerned with and having had for the most part to represent herself. She has conducted herself professionally and to the best of her ability and we are grateful to her for that.