Miss N Ngonyma v Alpha Health and Care Services Ltd and others: 3200495/2023
JUDGMENT
[1]The claimant’s claim that she was an employee within the meaning of s.230E Employment Rights Act 1996 is well founded and succeeds. Because of this finding, the tribunal has not found it necessary to determine whether or not the claimant was a worker;[2]The claimant’s claim of automatic unfair dismissal is unfounded and is dismissed;[3]The claimant’s claim that she made one or more qualifying disclosures as defined by s.43B Employment Rights Act 1996 fails as does her claim of detriment, pursuant to s.48 ERA 1996;[4]The claimant’s claim of harassment related to sex arising from s.26 Equality Act 2010 is unfounded and is dismissed;[5]The claimant’s claim of victimisation, pursuant to s.27 Equality Act 2010 is unfounded and is dismissed;[6]The claimant’s claims of holiday pay and unauthorised deductions are unfounded and are dismissed.REASONS
[1]By way of a claim form dated 12 March 2023, the claimant pursues claims of automatic unfair dismissal, predicated on the basis that the dismissal was as a result of her making protected disclosures, detriment arising from having made protected disclosures, sexual harassment, victimisation as a result of her allegation of sexual harassment, and unpaid wages and holiday pay. The claimant pursues her claims on the basis that she is either a worker or an employee (as applicable) within the meaning of s.230 ERA 1996. The respondents deny the claims pursued against them individually and against the first respondent.[2]The second, third and fourth respondents were described as directors of the respondent and are related in that the second respondent is the son of the third and fourth respondents who are married. The fourth respondent is the sole statutory director of the respondent.[3]The claimant claims that she was employed by the first respondent as its office manager. The first respondent is an agency that provided workers in the care industry to care providers at the time material to this claim. The second respondent was described as the first respondent’s managing director or operational director. The third respondent dealt with financial issues for the first respondent. The fourth respondent is a social worker which is important for regulatory purposes germane to the care industry and has a designated position with the first respondent for this reason.Procedure
[4]The hearing was listed over four days. The hearing was heard remotely by way of CVP. Evidence completed on day 3 of the hearing and the tribunal considered its decision over day 4.[5]At the start of the hearing, the claimant applied to amend her claim. The basis of the application for amendment was put forward by the claimant on the basis that the additional facts that the claimant was seeking to introduce as issues for the tribunal to determine were clarifications and/or elaborations upon the timeline already before the tribunal and would therefore assist the tribunal and the parties within the hearing. The tribunal agreed on the basis that the amendment did not appear to introduce a substantially different claim for the parties to contend with during the hearing.[6]The bundle before the tribunal was poorly prepared. For example, it contained numerous duplicates. It had been prepared by the respondents’ solicitors. It was clear to the tribunal that the parties had not read the bundle to check it prior to its submission; nor did it appear to the tribunal that the parties had collaborated in its preparation which is regrettable.[7]While it was the case that the bundle did not impede the tribunal or the hearing, it is nonetheless disappointing to receive a bundle from a professionally represented party which was so badly prepared. It is therefore important to mention it here and to note the tribunal’s dissatisfaction in the hope that this error is not repeated going forward.[8]In terms of witnesses, the claimant gave evidence on her behalf first. The second, third and fourth respondents gave evidence. Whilst there was some overlap in terms of evidence of the second and fourth respondents, it was the case that it was the second respondent who provided the bulk of the information in response to the claimant’s claims.[9]This judgment does not set out all of the evidence heard at the hearing. Instead, it summarises what the tribunal considered to be the evidence that it considered relevant to its findings. The Issues The issues to be determined by the tribunal as set out in a record of the preliminary hearing dated 4 July 2023. That case management hearing before Employment Judge C Lewis is set out extensively and covers the claimant’s complaints of automatic unfair dismissal for making protected disclosures, detriment for making protected disclosures, sexual harassment and victimisation, having made a complaint of sexual harassment, unpaid wages and holiday pay. The issues cover employment status, time limits in relation to the claimant’s claims of sexual harassment, pursuant to s.26 of EqA 2010, unfair dismissal, detriment and unauthorised deductions on holiday pay, protected disclosure, detriment arising from protected disclosure, victimisation arising from sexual harassment, pursuant to s.27 EqA 2010, remedy for protected disclosure detriment, remedy for the discrimination or victimisation, remedy for unfair dismissal, holiday pay and unauthorised deductions. The issues are not repeated here but can be found in the case management hearing record (see above) and at pages 37-44 of the bundle.Findings of fact
[10]The following findings of fact are agreed or are findings reached by the Tribunal on the balance of probabilities. Where there has been a dispute as to the evidence, we have set out how the Tribunal reached its decisions.[11]The claimant was engaged by way of a contract entitled ‘Contract of Employment’, signed by herself and the second respondent, dated 8 October 2021. That contract contains a number of details and headings including the claimant’s start date, her position, probationary period, remuneration, hours of work, place of work, holidays to be paid, sickness and absence pay, outside business interests (including a requirement that she be expected to devote the whole of her time and attention to the best interests of the first respondent during her working hours, as well as an exclusion to prevent her from carrying out any work which may be in competition with the first respondent, whether that work be undertaken in or out of normal working hours), grievance procedure, disciplinary procedure, termination details, and so on. The respondents’ position was that the claimant was at all times a contractor and not an employee. Therefore, it was incumbent upon the tribunal to determine the issue of the claimant’s employment status and whether she was either an employee or alternatively, a worker within the meaning of s.230 Employment Rights Act 1996.[12]The evidence presented to the tribunal overwhelmingly pointed in favour of the claimant being an employee. Aside from the contract of employment that the parties had signed, the evidence that the tribunal heard from the claimant, corroborated primarily by the second respondent, was consistent with that of an employee. For example, the claimant was required to attend work at an office at particular times and worked under the direction of the respondents. There was no provision for her work to be undertaken by a substitute on her behalf. While it was the case that the claimant submitted invoices in order to be paid, this did not of itself obviate the intention of the parties which the tribunal found to be consistent with that of an employment relationship between the parties. Accordingly, the tribunal finds that the claimant was an employee of the first respondent. Background Automatic Unfair Dismissal for WhistleblowingBackground
[13]The claimant’s evidence is that she considers that she was dismissed from her employment on 19 December 2022 for making a protected disclosure. It is her case that she made the disclosure to the second respondent, Mr Damilola Ige, the first respondent’s managing director. Essentially, the claimant asserts that she raised issues to Damilola Ige relating to what she considered to be reasonably well founded allegations of a breach of relevant HMRC PAYE rules concerning other employees or consultants engaged by the first respondent.[14]The protected disclosures that the claimant relies upon are as follows:- 1) In March 2022, concerns that the claimant raised to the second respondent regarding HMRC reporting and right to work violations. 2) Concerns raised with Damilola Ige over a failure to notify HMRC with regards to the employment of a particular employee, which the claimant asserted in evidence that she considered to be criminal activity. 3) Allegations arising between July and August 2022 relating to what the claimant considered to be false reporting to HMRC regarding the number of staff engaged by the first respondent. In support of this allegation, the claimant relied on the first respondent’s payroll summary from April, May and June 2022, which she had received from the first respondent’s accountant and which she described as having disclosed inconsistencies as to the number of active care staff working for the first respondent reported to HMRC for PAYE purposes. The claimant was adamant that the failure to set out in full the number of employees working amounted to false reporting and was evidence of criminal activity on behalf of the first respondent. 4) Between July and August 2022, it was disclosed that a member of the first respondent’s care staff complained that he was not receiving payslips and not receiving holiday pay. 5) That the claimant had disclosed that another employee, previously suspended for working without a valid DBS Certificate in breach of CQC rules, and subsequently dismissed for overdosing a service user and administering false medication, had been reinstated by the fourth respondent. It was the claimant’s assertion that this was in breach of CQC safeguarding rules. 6) The disclosure of a member of staff working for the first respondent who was working under a false name, which the claimant asserted amounted to criminal activity.[15]To summarise the claimant’s case against the respondents, it is her position that, having raised the issues identified above with the respondents individually and variously, the allegations are either disregarded or not investigated. In her witness statement, the claimant says the following:- “29. I subjected to the detriment at work because of the protected disclosures that I made to Damilola (Managing Director) and Anthony Ige in March and July 2022 regarding the false reporting to the HMRC about the number of employees which effectively reduced the company’s Income Tax liability. The respondent had failed to make honest disclosures to HMRC. The respondent was allowing staff to work with false identity, for example employee A, whose identity was being used by employee B, employee C was working but not declared by the company for Income Tax purposes. The company failed in its safeguarding obligations under CQC Regulations when it rehired an employee (anonymised) who had been dismissed for gross misconduct for overdosing a client and administered expired medication to a service user. The respondent had failed and was likely to fail to comply with its legal obligations to report accurately to HMRC and to pay the requisite Income Tax for the number of employees that were working and earning income as employees of the company.30. I reasonably believe that the disclosures were necessary in the public interest in that there was a risk of underreporting of the number of employees and defrauding HMRC of the correct amount of tax due and payable by the company for Income Tax purposes. Furthermore, I believe that there was a risk that the respondent was failing to report safeguarding issues to CQC.31. In these circumstances, I believe that my dismissal was automatically unfair.”[16]In oral evidence, the claimant’s evidence was consistent with the case set out in the paragraphs quoted above.[17]In response, the tribunal heard evidence from Damilola Ige, the second respondent. His evidence covered the issues of employment status, and the conversations that the claimant alleges to have occurred in March 2022 in which she asserts that she made a protected disclosure. Specifically, Mr Damilola Ige’s recollection of the March 2022 discussions differed markedly from that of the claimant in that his evidence was that the conversations that took place related to discussions concerning an outstanding amount of unpaid tax for which he stated an HMRC representative attended the first respondent’s office.[18]In May 2022, Damilola Ige describes receiving an email from the claimant which documented a number of concerns that she had with regards to the management of the business and in particular, her interaction with him and the third and fourth respondents and in particular, the overlapping nature of instructions that she received from each of them.[19]In September 2022, Damilola states that following a conversation with the claimant in which she was given a verbal warning regarding her conduct in the office towards the fourth respondent, the claimant subsequently alleged that she had been sexually harassed by the third respondent. In response to the claimant making an oral but unspecified allegation of sexual harassment against the third respondent, Damilola asked the claimant to submit an email detailing the allegation in order for an internal investigation to be conducted. It is Damilola’s evidence that upon receiving the email, he commenced the investigation.[20]The difficulty with the investigation is that it concerned the alleged conduct of his father, Anthony, the third respondent. The tribunal asked Damilola a number of questions relating to the appropriateness of him undertaking an allegation of sexual harassment concerning his own father within the context of a small family business. While Damilola accepted that he was not perhaps the best person to investigate the allegation, it was nonetheless something that had to be conducted within a small business and placed all of the respondents in a difficult position in so far as addressing the overriding need to ensure that the investigation conducted was done suitably and appropriately.[21]The claimant was absent on sick leave from the beginning September to 4 November 2022 and asserts that she was not paid sick leave and nor were pension payments made on her behalf. She also asserts that annual leave due to her was not paid to her in full. It is important to note this period of sick leave as it coincides with a number of interactions between the claimant and the respondents.[22]It is the claimant’s case that on 1 September 2022, and during the course of a meeting with Anthony Ige, the third respondent told the claimant that issues regarding payroll are his responsibility. In addition, the claimant asserts that the third respondent said that it was: “the lack of sex that was making me uptight.” Further, it is alleged by the claimant that the third respondent said: “he said that I had a big bum and that he would like to have sex with me and help me cool down. I was stunned and in shock by Anthony’s statement. I went into an adjoining office to calm myself down and to have space and time to recover from the shock. While in the adjoining office, I experienced a panic attack and palpitations. My eyes started throbbing and I feared I was having a stroke. I contacted my doctor.” At paragraph 34 of the claimant’s witness statement: “I reported the sexual harassment by Anthony to Damilola but he took no steps to investigate the matter. Rather, Anthony and Remi increased their attacks on me. Remi was not happy that I reported that her husband (Anthony) had made unwanted sexual remarks towards me. Damilola (the Managing Director) took no steps to protect me from bullying, harassment and victimisation at work by his parents (Anthony and Remi).”[23]The claimant goes on to describe further allegations of bullying taking place on 2 September by the third respondent, who she says started to make disparaging remarks about her work in front of other colleagues. By 5 September, the claimant says that the level of attacks targeted at her had become ‘unbearable’ and that she ‘could not cope’. She says that she was signed off sick by her doctor due to work related stress.[24]At paragraph 37 of the claimant’s witness statement, she says the following: “I was subsequently victimised by the respondent who refused to allow me to take time off work when my doctor had signed me off work for stress and anxiety. When I reported for work on 6 September 2022, Damilola said to me that his father (Anthony) informed him that I had quit. I explained that I had left early to see my doctor who has signed me off work and that I intended to take time off work based on my doctor's advice. Damilola stated that I could not take time off work. He insisted that I could give one week’s notice before proceeding on sick leave.”[25]And further, at paragraph 38 of the claimant’s witness statement: “I suffered detriment on my return to work because I made a protected disclosure. When I returned to work in November 2022, I found that I had been demoted and I was denied access to the office keys, the information that I stored in my computer hard drive were deleted, I was removed from the company WhatsApp group, staff had been informed that I had been dismissed. Remi had informed the staff that I had been dismissed. I found out that [anonymised] had been appointed as the new office manager. I was relieved of my responsibilities as the office manager without any official notification.”[26]The claimant goes on to describe how she was treated differently to other members of staff, and goes on to identify that she was humiliated by management, for example, by not having her own set of keys or by being addressed in front of other staff by the fourth respondent in a way she described as promoting a ‘negative work culture targeted at getting her out of the office’.[27]In relation to the allegations of protective disclosure, it was flatly denied by all of the respondents that all of the allegations of illegality or unlawful conduct as alleged by the claimant in the context of her claims to have made various protected disclosures had been raised to either the second, third or fourth respondents, either in writing or orally in the way that the claimant alleged.[28]In relation to the allegation of sexual harassment, it is the third respondent’s position that the words ascribed to him by the claimant which the tribunal would accept as amounting to sexual harassment, simply did not happen in the way that the claimant alleges.[29]In relation to the claimant’s allegations of detriment arising from protected disclosure and the allegations of sexual harassment, targeting particularly at the third and fourth respondents, it is their position (the third and fourth respondents) that, in the first instance, the conversation between the third respondent and the claimant that is said to have occurred on 1 September simply did not happen. In relation to the allegations raised against the fourth respondent concerning the culture in the office and the way in which the claimant was treated following her return to work in November 2022, the fourth respondent in particular identified that a number of changes had taken effect in order to ensure that the first respondent remained complaint within the regulating regime that it was subject to as a consequence of its activities. In particular, and in relation to the claimant’s allegation that she had been demoted or had her responsibilities removed from her as office manager, the fourth respondent identified that in fact, what had happened, was that due to a need to have a care coordinator, who is, in the fourth respondent’s words: “…hands on and covers shifts when the first respondent is short of carers and so goes out to undertake care. Care coordinators audit medication which needs to be monitored regularly as part of our duty of care to the vulnerable and the people we look after. The claimant’s role as an office manager is quite different from that of a care coordinator.”[30]In other words, it was the fourth respondent’s evidence that the work undertaken by another employee that the claimant previously had responsibility for had to be reallocated to somebody else because of the regulatory need imposed upon the first respondent.[31]In so far as the claimant’s allegations of a ‘negative work culture’, and in respect of the concerns that the claimant raised as regards her communications with the third and fourth respondents, the fourth respondent identifies the following within her witness statement: “20. Following the claimant’s period of absence, I initially did not have contact with the claimant. However, following this meeting, while auditing the Company Equal Card, I noticed a transaction and I asked who amongst the staff used the company credit card to buy McDonalds. The claimant responded aggressively that she was the one who used the card for McDonalds. I went on to tell her that it was wrong to use the company card to make an unauthorized purchase. She reacted by telling me to shut up and that I should mind how I talk to her as her case was with her solicitor already. I kept quiet so as not to escalate the situation as other staff were present. The claimant does not get along with most of the staff, one example is her treatment of the recruitment administrator which lead to her complaining. The assault on Naomi is another incident.”[32]And further, at paragraph 21: “On 23 November, I was contacted by one of the office staff, [anonymised], stating that there had been an altercation between the claimant and [anonymised] and that the police had been called. [anonymised] informed me that the police would not attend but they advised that one of them should leave the office. I was not present during this incident.”[33]While there is a dispute between the parties as to the nature of the altercation that is referred to in the paragraph above, it is nonetheless the case that there was an interaction between the claimant and another employee arising from the claimant’s perception that she was entitled to undertake work which had fallen within her range of responsibilities prior to her leave of absence but had been passed to another employee.Relevant Law
[34]The law relevant to the claims the claimant pursues is set as follows: Automatic Unfair Dismissal[35]Section 103A Employment Rights Act 1996: “An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or if more than one, the principle reason) for the dismissal is that the employee make a protected disclosure.”[36]Employment Rights Act 1996 Section 43B Disclosure is Qualified for Protection.(1) In this part a ‘qualifying disclosure’ means: “Any disclosure information which is, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following- (a) That a criminal offence has been committed, or 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 obligations to which he is subject; (c) That a miscarriage of justice has occurred, is occurring or is likely to occur; (d) That the health of safety of any individual has been, or is being or is likely to be endangered; (e) That the environment has been, is being or is likely to be damaged; or (f) That information tending to show any matter falling within any one of the preceding paragraphs has been, or is being or is likely to be deliberately concealed.(2) 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 that of the United Kingdom or any other country or territory.(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.(4) 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 has been disclosed in the course of obtaining legal advice.(5) In this part ‘the relevant failure’, in relation to a qualifying disclosure, leaves the matter falling within paragraphs (a) – (f) of subsection (1).[37]Section 47B Protective Disclosures, Employment Rights Act 1996: (1) A worker has the right not 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.[38]Harassment – Section 26 EqA 2010. Section 26 of the EqA provides: “26 Harassment (1) A person (A) harasses another (B) if – (a) (A) engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect ofi. Violating (B)’s dignity, or ii. Creating an intimidating, hostile, degrading, humiliating or offensive environment for (B)[39]Victimisation on the basis of sex – Equality Act Section 27; 27 (1) provides: “A person (A) victimises another person (B) if (A) subjects (B) to a detriment because (a) (B) does a protected act or (b) (A) believes that (A) has done, or may do, a protected act.” Notice pay[40]Section 86 of the Employment Rights Act 1996 (ERA 1996) provides that: “86 Rights of employer and employee to minimum notice.(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more— (a) is not less than one week’s notice if his period of continuous employment is less than two years, (b) is not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and (c) is not less than twelve weeks’ notice if his period of continuous employment is twelve years or more.(2) The notice required to be given by an employee who has been continuously employed for one month or more to terminate his contract of employment is not less than one week. Unlawful Deduction from Wages – Employment Rights Act 1996 Section 13(1)[41]Employment Rights Act 1996 Section 13(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 relevant provision of the worker’s contract, or(b) A worker is previously signified in writing his agreement or consent to the making of the deduction.” Findings Employment StatusFindings
[42]As set out above, the tribunal found that the claimant was an employee at all times material to the claim for the reasons stated above. Protected Disclosure[43]It was submitted by Mr Aggrey-Orleans on behalf of the respondents that the case really was all about the protected disclosure allegations that the claimant made. He submitted that the second, third and fourth respondents were family members who had compartmentalised roles within the operation of the first respondent. Remi (R4) was ‘in the field’. Anthony (R3) was responsible for finance and tax affairs. Damilola (R2) was the managing director who had an informal style and was not a statutory director.[44]In positioning her protected disclosure allegations in the way that she did, Mr Aggrey-Orleans submitted that the claimant was making really serious allegations of illegality or unlawful conduct which set a ‘high line’ in so far as the evidence of the allegations that she makes. In this regard, Mr AggreyOrleans submitted that the claimant had produced no independent evidence of protected disclosures having been made, relying, for example, on the evidence of Damilola that the conversation that the claimant asserts to have taken place in March 2022 did not cover any allegations of HMRC misreporting but instead concerned an issue of underpayment to HMRC which resulted in an inspection. In so far as the other allegations raised, Mr Aggrey-Orleans pointed to other factors being at play, including the claimant’s ongoing concerns with regards to what she described as ‘toxic working’ and the fourth respondent’s general management style. Mr AggreyOrleans pointed out that the first indication that an allegation of whistleblowing was to be made is contained within an exhibit to the claimant’s witness statement which is dated 25 November 2022, past the date upon which the allegations of misconduct on behalf of the respondents is said to have taken place. He says that this is very telling. He says that it was raised by the claimant significantly after she had received advice and he says that this is not coincidental as it would have been pointed out to the claimant at this point that she would not be able to pursue a claim of unfair dismissal because she did not have the requisite length of service in order to pursue a claim.[45]The tribunal accepts Mr Aggrey-Orleans’ submission that it was only on 25 November when the claimant was exited from the first respondent that she makes reference to a whistleblowing claim and at this time she provided a brief indication of an issue with no detail provided whatsoever. The tribunal accept the respondents’ submission that the claimant inserted the whistleblowing allegation because she had received advice specifically concerning her inability to pursue a unfair dismissal claim and therefore, in order to do so, she would have had to introduce a claim of whistleblowing.[46]Specifically, the tribunal prefers the evidence of Damilola rather than the claimant in relation to the conversation that the claimant relies upon, said to have taken place in March 2022. Further, the tribunal accepts the evidence of Anthony and Remi that the first indication that they were aware of a protected disclosure claim was when the claimant issued her claim to the tribunal. In addition, and in relation to the second protected disclosure that the claimant relies upon, the tribunal accepts that the claimant could not have made it to the second respondent on 19 July 2022 because Damilola was in Nigeria at that time. Second, the documents relied upon by the claimant are not contemporaneous with the allegation that she makes. Third, that the claimant has clearly misunderstood the agency arrangement that the first respondent had entered into to fulfill its contractual obligations and when asserting in evidence that the first respondent should have included agency workers in its HMRC PAYE submissions.[47]Lastly, it was clear from the claimant’s evidence that she had very limited knowledge of the law and of the facts underpinning her allegations that related to the protected disclosures that formed part of her claim. When asked by the judge as to how she had formed the views that she had the claimant said that she had undertaken her own research and had taken on board information that she had received. It was the finding of the tribunal that the information that the claimant relied upon in this regard was variously sketchy, ill-informed, or incorrect. It was clear that the contentions of impropriety levelled at the respondents was formed mainly of conjecture that was formed unreasonably but relied upon by her with a high level of resolution and zeal. The tribunal finds that the claimant relied unreasonably on the evidence that she had acquired in respect of all of the allegations that she raised and the seriousness of them.[48]Accordingly, and on the balance of probabilities, the tribunal prefers the evidence of Damilola, noting as it does that none of the whistleblowing allegations are supported by any documentary evidence. The tribunal does not accept that the claimant was unable to approach either Damilola or Remi with regards to any of her concerns that has subsequently developed into the whistleblowing claims that the tribunal had to determine. Nor does the tribunal find that the either Remi or Anthony were aware of the disclosures as the claimant alleged noting that there was no documentary evidence to support this assertion.[49]In addition, we found the claimant to be an inconsistent witness. For example and on the one hand, she was prepared to be vocal about the reinstatement of an employee that she had dismissed and prepared to record her concerns in writing on this and a number of issues but on the other hand, we are asked to accept that the claimant was so reticent about raising any of her whistleblowing concerns in writing.[50]The tribunal had the benefit of hearing evidence from all of the witnesses, including the claimant. The claimant was found to be strident, open and forthright. She did not strike the tribunal as being someone who was backward in coming forward; on the contrary, she was the person who was in keeping with the author of the emails that were annexed to her witness statement in which the claimant raises a range of workplace environment issues in direct and at times, critical language of her employers.[51]Accordingly, the tribunal, in respect of each allegation made by the claimant that a protected disclosure had been raised with one or more of the respondents, finds that the disclosures referred to did not happen. Sexual Harassment[52]In short, there are discrepancies in the claimant’s account. While this does not mean that it did not happen, the tribunal is unable to reach a view, on the balance of probabilities, as to whether or not the words said to have been said by the third respondent were actually said.[53]The claimant’s evidence was that the sexual harassment allegation as detailed above happened on 1 September 2022. She had a meeting on 2 September 2022 when she was spoken to about her conduct in the office and was given a verbal warning. That meeting ended but then resumed again shortly after. It was during this second meeting that the claimant says that she raised the sexual harassment allegation.[54]In this context, the claimant’s letter in response to one received from Anthony, dated 2 September 2022, is perplexing, in that not only is it long and detailed, but that it contains nothing about the sexual harassment allegation but does refer to a heated conversation. The tribunal finds this to be relevant as to the issue.[55]The tribunal notes that the claimant account of the sexual harassment allegation differed between her witness statement and during cross examination. For example, the claimant does not mention in her witness statement that she suffered a panic attack in the aftermath of the conversation took place in which she says that she was sexually harassed. Further, when cross-examined, the claimant was asked whether the sexual harassment allegation was linked to her disclosures. In response, the claimant said:” I can’t say what was in his mind it was a course of events.” Given that the claimant had alleged that the sexual harassment had occurred because of the protected disclosures this was clearly a response that undermined the claimant’s case.[56]A further example of the claimant’s inconsistent evidence can be seen from the section of cross examination set out below: “Mr Aggrey-Orleans: you did not report the incident to the police? Claimant: I did report it to the police and said a statement is being agreed. Mr Aggrey-Orleans: you did not state that in your witness statement that you called the police but you did report the assault incident with worker (B) and this is a bigger allegation of sexual harassment. Claimant: I did not realise I had to call the police in respect of sexual harassment. I thought I had to speak to Damilola.” Here, it can be seen that the claimant is inconsistent as to whether or not she had or had not reported the matter to the police and this, the tribunal found as being indicative of the claimant’s inconsistency and unreliability when giving evidence to the tribunal.[57]However, given the nature of this allegation, the tribunal must determine whether the claimant has met the evidential threshold in terms of providing that Anthony used the words alleged against him. in order to do this the tribunal had to evaluate the evidence of the individuals involved.[58]In the round, the tribunal finds that the claimant’s evidence, combined with the other issues identified, means that the claimant’s evidence is so inconsistent, that it cannot be accepted as reliable. Accordingly, we find that, on the balance of probabilities, that the claimant’s claim for sexual harassment fails. In other words, the tribunal was unable to find that Anthony told the claimant that it was her lack of sex that was making her uptight and telling her that he would like to have sexual intercourse with her. The tribunal accepts that something Anthony said to the claimant which was unacceptable to her. However, the tribunal was unable to find anything further. Automatic Unfair Dismissal[59]Because the tribunal did not find that the claimant made a protected disclosure, it follows that the claimant’s claim for unfair dismissal automatically fails.[60]Given that the tribunal has found that the claimant did not make the protected disclosures that underpin not only her claims in respect of protected disclosure and detriment, it must follow that the claimant’s claims of automatic unfair dismissal must fail. Holiday Pay and Unlawful Deductions[61]Put simply, there was no detail to support this claim in the claimant’s witness statement, nor was any provided to the tribunal during the course of the hearing. On behalf of the respondents, Mr. Aggrey-Orleans made this point and also highlighted the fact that during the course of her employment, the claimant had raised concerns and queries around the amount of money she had been paid and that correspondence between the parties addressing the issue of the alleged underpayments had concluded following a short exchange of correspondence. In evidence, the third respondent, in rebutting the claim of underpayments and holiday pay, addressed the tribunal on the some of the detail of the payments made to the claimant which was not challenged.[62]Based upon the evidence before it, the tribunal is not in a position to make any determination either way in respect of the claimant’s claims of unlawful deductions and accordingly, this claim is dismissed. This claim is unfounded and does not succeed.Summary
[63]The tribunal finds all of the claimant’s claims to have been unfounded.[64]It all instances, the evidence of the respondents has been preferred over the claimants. In respect of the claims of protected disclosure, automatic unfair dismissal, the tribunal has found on the balance of probabilities, that the claimant did not raise a protected disclosure and therefore it must follow that the claimant’s claims here must all fail.[65]In respect of the claimant’s claim of sexual harassment and victimization arising from alleged interaction with the third respondent, the tribunal is unable to make a finding based upon the fact that both the claimant and the third respondent provided the tribunal with diametrically opposing evidence, such that the tribunal was unable to make a finding. In reaching its finding, the tribunal bore in mind its assessment of the claimant’s evidence, specifically that the claimant was inconsistent in her evidence and therefore, treated her evidence with care where appropriate. 66. in respect of the claimant’s claims of unlawful deductions and in respect of holiday pay, it is the position that the tribunal was not presented with any evidence which would have allowed it to determine the issues and subsequently both claims must fail.[67]The tribunal feels compelled to observe that the first respondent should review its practices and procedures for the management of employee issues and concerns. While the tribunal recognises that the first respondent is a small, family run company, it is the tribunal’s view that the first respondent fell some way short of best practice in terms of its investigation of the sexual harassment complaint. For example, it could have engaged an external agent to investigate and then report on the allegation. Further, the tribunal notes that the first respondent did not appear to hold adequate, complete records relating the issue of the verbal waring to the claimant.