Ms S Brobbey v London Borough of Hackney: 3200708/2021

EMPLOYMENT TRIBUNALS

Case No 3200708/2021

Between

Ms S BrobbeyClaimant

London Borough of HackneyRespondent

Before

Employment Judge Park

Members

Ms T Jansen

Mr M Rowe

In person for claimant

Mr M Salter (instructed by Counsel) for respondent

Date 1 August 2024

JUDGMENT

[1]The claimant’s claims that she was subjected to detriments on the grounds of having made protected disclosures do not succeed. The claims are all dismissed.

REASONS

[1]The claimant worked for the respondent as an agency worker between February 2019 and February 2021. The claimant said that during the course of her employment she made three protected disclosures. The claimant said the respondent subjected her to detriments on the grounds of those disclosures.

[2]A list of issues had been agreed by the parties following a preliminary hearing.

[3]The claimant said she made the disclosures on the following occasions: 3.1. in an email to Ross Tuckley on 30 October 2020; 3.2. in an email to Ross Tuckley on 2 November 2020; and 3.3. in an email to Ross Tuckley on 25 November 2020.

[4]The claimant says the respondent subjected her to the following detriments: 4.1. it terminated her placement on 5 February 2021; 4.2. Dona Randolph gave her conflicting and untrue reasons for the termination of her placement on 22 January 2021 by video call and on 26 January 2021 by email and a different reason being given by Ross Tuckley on 2 February 2021; and 4.3. hostility from Dona Randolph towards the claimant in respect of getting work done, micro-managing the claimant and being told to return work equipment (laptop and adapted chair).

[5]The issues for us to determine were: 5.1. were the disclosures identified by the claimant qualifying disclosures; 5.2. was the claimant subjected to the detriments she has identified; and 5.3. if so, were the detriments done on the grounds of her having made the protected disclosures.

[6]At the outset we confirmed that these were the issues to be determined. During the course of the hearing we also clarified with the claimant that these were the only issues we were determining. Procedure, documents and evidence heard

[7]The claimant represented herself. She had prepared a witness statement on which she was cross-examined. Included in the bundle of witness statements was a statement prepared by the claimant’s father. The claimant’s father was not able to attend the hearing. The statement was very short and did not directly address any of the issues we needed to determine. We read the statement but gave little weight to it as we did not hear from him in person.

[8]The respondent was represented by counsel. The respondent called four witnesses. They were Dona Randolph, Business Manager and the claimant’s line manager, Ross Tuckley, Business Development and Support Manager, Roger Pellew, HR Contracts Manager, and Lorraine Jones, Senior Payroll Co-ordinator with CDL Limited. They had all prepared witness statements and were cross examined on their evidence.

[9]A paginated bundle of documents had been prepared. The claimant and witnesses referred to relevant documents in their statements by reference to the page numbers.

[10]During the course of Ms Randolph’s evidence an issue arose about one particular document within the bundle. This was a photograph the claimant had taken of her work computer screen. It emerged the claimant had referred to this in her statement but erroneously included the wrong page number. As a result this part of her evidence had not been fully understood by the respondent or Tribunal. The relevance of this document was explored further by the claimant being able to ask Mr Tuckley about the document during cross-examination, as it was a document he was better placed to comment on.

[11]After evidence the parties both gave written submissions and the claimant was also able to add to her submissions orally.

Findings of Fact

[12]The findings of fact we have made which are set out below are based on the issues identified above. We have limited our findings to those factual allegations that underlie the claimant’s various claims and other matters that are direct background and context.

[13]We carefully considered all the evidence provided that we were taken to, both documentary and witness evidence. A lack of reference to any particular document or something that was said by a witness does not mean it was not considered.

Background

[14]The respondent is a local authority. The claimant was an agency worker. She worked for the respondent as a Business Support Officer. This assignment with the respondent began February 2019.

[15]The respondent has a contract with a company called Matrix. The respondent recruits agency workers via Matrix. Matrix is not an agency itself but it sources workers from other agencies. Matrix has a sister company called CDL Limited who operate the payroll for agency workers. Under this arrangement the claimant had a contract with CDL.

[16]The respondent has a pay policy that determines the pay for all of its employees. All roles are evaluated and graded and within each grade there are a number of incremental spinal points. Employees can be eligible for incremental pay rises each year. In addition, the respondent negotiates a global increase in pay each year with its recognised unions. This means that there are 2 ways that an employee’s pay can increase each year, an incremental rise if eligible and one based on the negotiated increase.

[17]When the respondent recruits agency workers the rates of pay are based on the same job evaluation scheme. This means that an agency worker should automatically be paid the same rate as an employee of the respondent who is employed to do the same role. Under the Agency Workers Regulations 2010 agency workers have the right to be paid the same as an equivalent employee of an end-user after they have worked for 12 weeks. The respondent goes beyond this and pays agency workers the same equivalent rate of pay from the first day of any assignment.

[18]When a hiring manager wants to recruit an agency worker they use the Matrix system. They input the role into the system and the correct rate of pay should be automatically generated based on the grade of the role.

[19]Agency workers engaged by the respondent are also entitled to equivalent increases in pay as the respondent’s employees. This is because their pay is directly linked to that of an equivalent employee. We heard that when pay rises are agreed the respondent would inform Matrix of the new rates of pay under the pay policy. What should happen is all agency workers rates would automatically be increased to reflect the raises.

[20]The annual increases for each year take effect from 1 April. However, the negotiations with the unions on the global uplift can take some time and may not be agreed until around October. These increases are then backdated. When this happens the respondent’s payroll will implement the change and back pay for the respondent’s employees. The increases for agency workers will be implemented by the agencies paying the workers, such as CDL. The respondent informs Matrix of the increase who then ensure that CDL increase the rates of pay for agency staff accordingly. This can take some time and it would only happen after any increase was implemented for the respondent’s employees.

[21]When the claimant was recruited an error happened with this process. To speed matters up duplicate orders were used on Matrix. When this was done the correct rate of pay was not necessarily automatically generated, and an obsolete rate would be applied instead. This had two consequences. First the claimant was not paid the correct rate of pay when she started working for the respondent, she was paid the rate for the role from a previous year.

[22]The second consequence was that the claimant did not automatically receive any increases. We accepted the respondent witnesses’ evidence that the reason this happened is that the way that the automatic increase was dependent on the agency worker being paid a current rate, to which an uplift would be applied. The rate the claimant was paid was not one that was in the 2019 payscale, so the system did not automatically pick up that she was due an increase. Facts of this case

[23]The claimant’s role was as Business Support Officer (“BSO”) within Young Hackney which is part of the respondent’s Children and Families department.

[24]Broadly the role of BSO is providing general administrative support to one or more teams. This involves taking minutes, general administrative tasks, updating case management systems and doing allocations. The BSO will be part of the general business support function of any department. BSOs are managed by Service Managers who in turn are managed by the Business Manager. Dona Randolph was the Business Manager for Early Help & Prevention and Young Hackney falls within that along with some other teams.

[25]The claimant did not give evidence about what she was told at the outset about her role and how long her placement would last. However, Ms Randolph explained that the structure in place meant that there should be a BSO for the team in which the claimant worked. This was a permanent role that was empty so the claimant was recruited to cover that vacancy. When there was a gap the respondent would often use agency staff to cover it until it was filled. The claimant’s assignment continued for longer. Ms Randolph thought that this was probably due to Covid.

[26]We accepted Ms Randolph’s evidence and explanation of the underlying situation and that the claimant was covering a permanent role on an ongoing basis. This was a credible explanation and it made sense in the circumstances that the respondent may not prioritise filling the role on a permanent basis.

[27]Initially the claimant was managed by a Customer Service and Facilities Manager. First she was managed by Nii Nortey and then by Zakariya Kaji. In August 2020 an altercation took place between the claimant and Mr Kaji during a video meeting. Mr Kaji raised a grievance against the claimant and refused to work with her. We did not see a copy of the grievance so make no further findings about this. We also asked Ms Randolph if she had thought about terminating the claimant’s assignment then as a way of dealing with the situation. She said that she did but the claimant was getting on well with the work so she had no reason to do so.

[28]As a result of this situation Ms Randolph took over managing the claimant directly. This was unusual as Ms Randolph managed the Service Managers who in turn managed the BSOs. The claimant’s role remained the same but her reporting line changed. When she took over managing the claimant Ms Randolph sent the claimant an email setting out her expectations. She asked the claimant to check in every day and provide an overview of what she would be doing. In part this was because at the time everyone was working from home.

[29]Due the pandemic claimant was also working from home. The respondent had been providing equipment for its own employees who were working from home. In July 2020 the claimant had said that she was having difficulties without the right equipment at home. She had been in an accident and had a back problem so needed a suitable chair. An assessment was carried out on 23 July 2020.

[30]The respondent then informed the claimant that they would not provide her with equipment as she was not one of their employees. Instead the claimant needed to arrange equipment with her own employer, who were CDL. While waiting for this the respondent did provide a chair for the claimant on a temporary basis. The claimant then received a specialist chair in September 2020 from CDL.

[31]The respondent had also provided the claimant with a Chromebook for work. In August 2020 there had been a discussion between the claimant and Ms Randolph about this. The claimant had said that the Chromebook was not connecting to her internet and she was using her own MacBook. However, her MacBook camera was not working. The claimant had said that she would try and get that fixed and then continue to use her own MacBook. Nothing further was discussed about that at the time. Events of October 2020 onwards

[32]On 8 October 2020 the claimant had a catch up video call with Ms Randolph. In this she had asked about a pay rise. Ms Randolph told the claimant that she should have received an uplift in line with the respondent’s pay arrangements we have already described. Ms Randolph told the claimant that she needed to contact CDL about this, as they were her employer.

[33]The claimant emailed CDL about increments the same day. On 9 October 2020 CDL informed the claimant that her pay should increase and it would be backdated to 1 April 2020. There was further email correspondence between the claimant and CDL over the course of the day about the situation. The claimant also queried whether she had received any uplifts in April 2019. CDL said they would ask the respondent about that.

[34]The claimant also emailed Ms Randolph and asked what her original rate of pay had been. Ms Randolph directed the claimant back to CDL. On 12 October the claimant sent a lengthy email to CDL about the pay issue. She said she was unhappy about the situation.

[35]On 13 October 2020 the claimant contacted Roger Pellew who is the respondent’s HR Contracts Manager. He is responsible for managing the contract with Matrix. Mr Pellew checked the system and found out that the claimant’s rate of pay was not in line with the correct pay scales. He told the claimant to speak to her manager and to CDL.

[36]On 13 October 2020 CDL contacted the claimant with an update. They informed the claimant that the global pay award was only finalised on 22 September 2020 and Matrix were only to process increases once the respondent’s own employees received their increase and back pay. They said it would take a while to update the system for agency workers. The claimant responded and set out what she had found out from Mr Pellew. She also said she wanted CDL to look into it further.

[37]On 21 October 2020 CDL emailed the claimant to update her. They confirmed that the claimant had been put on the wrong rate in February 2019 when she started. They also advised that the claimant that her rate should have increased in April 2019 and then again with effect from April 2020. CDL confirmed that her rates would be updated and she would be paid in line with the new rate. They said she also should get back pay for the previous years, but they were waiting for confirmation from the claimant’s manager.

[38]During the end of October there was further correspondence between the claimant and CDL and the claimant and Ms Randolph on this issue. There was also correspondence between the respondent, Matrix and CDL. The details of the correspondence is not of direct relevance to the issues we need to determine. We will just summarise the main points so far as it is relevant background to the claims: 38.1. It was confirmed that the claimant had not received the pay rises she should in April 2019 and she was also due 2020 pay rises. On 21 October 2020 CDL provided an update and indicated that the claimant would receive backpay to rectify the error. 38.2. On 23 October 2020 the claimant let Ms Randolph know what had been discovered. She asked how this had happened. Ms Randolph responded promptly. She explained how the system was prepopulated and the error occurred. In her email Ms Randolph apologised for the error. 38.3. The claimant wrote a number of lengthy emails to both CDL and Ms Randolph expressing concerns about how the situation arisen. The claimant says that Ms Randolph did not respond to an email she sent on 26 October 2020. 38.4. Ms Randolph and Mr Pellew were also in contact on 28 October because the back pay needed to be formally approved. Approval was received on 29 October 2020. This was done by Pauline Adams, Head of Service.

[39]In summary, a problem with the claimant’s pay was identified. Ms Randolph, Mr Pellew, CDL and Matrix all ensured it was resolved promptly. The issue was raised by the claimant on 8 October 2020. On 21 October the claimant had been told by CDL it was being dealt with. She then received the back pay on 1 November 2020.

[40]During this time the claimant also informed other BSOs about the situation and suggested they look into their own pay.

[41]On 30 October 2020 the claimant emailed a grievance to Ross Tuckley. The claimant says this is a qualifying disclosure, stating it included the following; 41.1. the respondent failed to pay the claimant the right pay since the beginning of her placement; 41.2. the respondent failed to meet agency day one rights; 41.3. the respondent failed to notice any discrepancies in the claimant’s pay over eighteen months; 41.4. the respondent failed to make April uplifts/increments for workers in line with yearly pay scales; and 41.5. that she was “already aware of other people this has happened to and have told agency staff to look into their pay, I would urge you to do the same” and “for such a huge oversight to have occurred is highly negligent”.

[42]The above points are all within the grievance in addition to the following: 42.1. She set out what had happened so far to address the situation. 42.2. She said was still waiting for approval from Ms Randolph. She had not heard on this matter since she wrote on 26 October. She was escalating as she said Ms Randolph had failed to provide clarity or ‘greater support’. 42.3. She set out various questions she wanted answered about how the situation had arisen. She also said that she wondered how many other agency workers had been underpaid, as she was aware of others who she suggested were in the same situation.

[43]The email was acknowledged by Mr Tuckley on 2 November 2020. The claimant responded and confirmed that she had been told by Matrix that the back pay was approved. In this email the claimant also restated that the situation affected other BSOs and there should be an investigation. This email is said by the claimant to be a protected disclosure.

[44]Ms Randolph was on leave for much of November. We were not provided with exact dates but heard from her that she was mostly on leave but in the office from time to time. One of these days was 18 November 2020.

[45]Mr Tuckley had been emailing HR about the grievance and copied in Ms Randolph. On 18 November 2020 Ms Randolph emailed Mr Tuckley to say that was the first she heard of the grievance. In this email she expressed her annoyance at the grievance. She said it seemed the claimant was trying to tarnish her and ‘throw me under the bus’.

[46]Ms Randolph gave evidence that she was annoyed when she saw the claimant’s grievance. She felt that she had worked hard to resolve the claimant’s pay issue once she found out about it, so it was frustrating that the claimant had escalated the matter. She explained that the email was just her offloading these feelings to her manager. However, she had been a manager herself for a long time and accepted that grievances were just something that happened and had to be dealt with. We found Ms Randolph’s explanation of the email straightforward and genuine.

[47]On 24 November 2020 Mr Tuckley wrote to the claimant with the outcome of her grievance. In this he set out what had happened regarding the duplicate orders within Matrix leading to the wrong rates being applied. He explained that this had now been rectified so old rates could not accidentally be used. He also informed the claimant that when using Matrix managers would not be aware of the actual rates paid to agency workers. He confirmed that the back pay had been rectified and the claimant had been paid £1,360.90 on 1 November 2020.

[48]On 25 November 2020 the claimant responded to Mr Tuckley. She said that her questions had not been addressed and she wanted a meeting. The key points were about how the situation arose, what was being done to prevent it happening again in the future and to ensure other agency workers got what they were entitled to.

[49]Mr Tuckley responded to acknowledge the claimant’s email. He said that as the claimant was not an employee the grievance policy did not apply. However, he confirmed that her complaint had been investigated and she had been compensated for the underpayment.

[50]Mr Tuckley did not respond to the claimant’s questions about the wider issues, such as whether other agency workers were affected. In his oral evidence Mr Tuckley said that this had been looked into and discrepancies about other agency workers’ pay had been addressed. He explained that he had not informed the claimant of this at the time because she did not have any right to know about other individuals’ circumstances. Mr Tuckley responded to the claimant about her own situation, which had been resolved. We accepted Mr Tuckley’s explanation on this issue. In his evidence Mr Tuckley said they were glad the claimant had brought the issue to their attention so it could be resolved. We found Mr Tuckley’s comments about this to be genuine. Conduct by Ms Randolph after the grievance

[51]By way of general background, the respondent had been subjected to a cyberattack on 10 October. This had a major impact on the respondent. This incident and the consequences formed a background to much of this case. It is of particular relevance to some of the interactions that occurred between the claimant and Ms Randolph in December 2020 and January 2021 that the claimant has complained about.

[52]As a result of the cyberattack new systems needed to be put in place on an interim basis. The respondent had a case management system called Mosaic that the claimant used in her role. This could not be used in the immediate aftermath of the cyberattack so new temporary systems were put in place. This created a lot of additional work for many of the respondent’s employees including the claimant. As a result a backlog developed.

[53]The claimant said that she had no communication with Ms Randolph for the whole of November 2020. We heard that Ms Randolph was on leave for much of November, but not the entire month. We accept that this meant that it is likely there was either no contact or minimal contact between them during that time.

[54]On 1 December 2020 Ms Randolph emailed claimant to ask her about the equipment she had at home, namely the chair the respondent had provided and the Chromebook. The claimant had received her special chair in September 2020. In August 2020 she had also indicated to Ms Randolph that she would get her own MacBook fixed.

[55]On 1 December Ms Randolph asked if the claimant still had the chair, as it needed to be returned. She also asked if the claimant was using the Chromebook and, if not, whether it could be returned. The claimant responded to say she needed assistance to return the chair and that she was now using the Chromebook. Ms Randolph acknowledged the claimant’s email and said she would liaise with Facilities about collecting the chair. As the claimant had said she was using the Chromebook there was no further discussion on that and the claimant kept it for the remainder of the time she worked for the respondent.

[56]The claimant has said she did not understand why she was being asked to return these items in December 2020 given that she had received her specialist chair in September 2020. Ms Randolph explained that the respondent’s ICT department had asked if unused computer equipment could be returned. She had understood that the claimant was not using the Chromebook so asked her about returning it. She had not asked earlier about the chair as she had been busy, then on leave. We accepted Ms Randolph’s explanation on this. It was understandable that asking for the items to be returned was not a priority, given the additional workload created by the cyberattack.

[57]Ms Randolph had asked that the claimant check in with her every day and let her know what she was working on. On 2 December 2020 there was additional email correspondence between the claimant and Ms Randolph about the claimant’s work. There were a series of emails through the day between Ms Randolph and the claimant.

[58]The background to these emails was the cyberattack. This had created significant additional work as new ad hoc systems were being put in place. As a result of this a backlog had developed. Ms Randolph asked the claimant if she was up to date. She also refers to the difficulties of not having the usual systems in place. The claimant responded to say she was not up to date due to the cyberattack. Ms Randolph asked the claimant for a time frame for clearing the backlog. She also asked the claimant if she needed any help. The claimant responded with a summary of when she anticipated having everything done. Ms Randolph acknowledges this, saying “Amazing …. Thank you”.

[59]On 13 January 2021 there was further email correspondence between the claimant and Ms Randolph about the backlog of work following the cyberattack. Ms Randolph sought further updates and asked for time frames and the claimant responded. These emails are brief, just sharing information on various pieces of work.

[60]As part of her claim the claimant has referred to these emails as evidence of what she says was Ms Randolph being hostile and micromanaging her. She also says that they are evidence of Ms Randolph asking her to provide additional updates that others were not asked to do. Having considered the emails we have concluded that they do not show any hostile conduct by Ms Randolph. Neither do we find that they amount to micromanagement. They are unremarkable emails between the claimant and her manager about the work she is doing. The language used is appropriate and professional. They also need to be looked at in the context of the cyberattack and additional work that had created. Ms Randolph is supportive to the claimant, expressly saying “is there any help you need with getting these backlog data completed” and she asks to be kept in the loop “to allow me to assist you where possible”.

[61]The claimant has also said that no one else was treated this way and she “sensed pressure to complete work rapidly”. However, no other BSOs were directly managed by Ms Randolph. Due to the cyberattack and the problems that arose it was a pressured situation. Termination of assignment

[62]The claimant worked within Young Hackney. This was part Early Help and Prevention division of the respondent’s Children and Family Services function. Within Early Help and Prevention there were various teams including two Youth Justice teams.

[63]Within Early Help and Prevention there were a number of BSOs assigned to different teams. BSOs all the same grade and undertake general administrative support to their teams. Some BSOs are also agency workers and others are permanent employees of the respondent.

[64]In 2020 there was a BSO within one of the Youth Justice teams who was an employee of the respondent. We were not provided with the name of this individual so will refer to this person as Employee X. Employee X had been experiencing difficulties in their role. We were not provided with details about these problems as they were not relevant to this claim and related to another individual. The key points were: 64.1. Employee X was a permanent employee of the respondent working as a BSO within Youth Justice. 64.2. Employee X had been having difficulties for some time within the team where they worked. The respondent was looking into how to resolve those issues. 64.3. Employee X was reviewed by Occupational Health on 30 Oct 2020. Occupational Health recommended that the person’s request for redeployment to a different department was supported as that would resolve the issues.

[65]We accepted there was such an employee, as it was backed up by the redacted Occupational Health report. There was no evidence provided by the claimant to suggest this was not a genuine situation that needed to be resolved.

[66]Ms Randolph explained she became aware of the issue with Employee X issue at some point in September 2020. The Occupational Health report was received by Employee X’s manager, Amy Willoughby. Ms Randolph did not see the report at the time but discussed it and the recommendation with Ms Willoughby.

[67]In the first week of December 2020 Ms Randolph met with Employee X to discuss a move to Young Hackney. Employee X confirmed that they wanted to move to the team and Ms Randolph confirmed this on 10 December 2020.

[68]At some point in December 2020 the claimant took a photo of her computer screen. This was the additional document referred to above that had been incorrectly referred to in the claimant’s statement. It showed some of the interim system that was being used. The document was redacted but we understood it had shown Employee X’s name. The claimant seemed to be suggesting that this document showed that a decision had already been made about moving Employee X. It was not clear though from the claimant’s evidence what this document was intended to demonstrate, so we have been unable to make any further findings of facts about this.

[69]Employee X’s move did not happen straight away. We heard from Ms Randolph that the general move was decided first but she then needed to work out which specific role Employee X could do. She said that she had received advice at some point from HR that when a permanent employee is being redeployed it should be to another permanent role. We were not provided with any documentary evidence about this, such as a relevant policy. However, we accepted that this was Ms Randolph’s understanding of what should happen. It is understandable that this is what should ideally happen, as redeploying a permanent employee into a temporary role or precarious role would mean their long term employment may be at risk.

[70]At the time there were 6 agency workers in BSO roles within the teams that Ms Randolph managed. Ms Randolph explained that one was in the Youth Justice teams that Employee X had come from, so it was not a possibility. There were 4 agency workers in roles that were either fixed term or dependent on insecure funding. The only permanent BSO role currently filled by an agency worker was the claimant’s position in Young Hackney. As a result Ms Randolph decided that redeployment into the claimant’s role would be most suitable for Employee X. We accepted Ms Randolph’s explanation as genuine, as it was consistent with what she said her understanding was about what should happen when redeploying a permanent employee.

[71]Ms Randolph made the decision in early January and updated her managers, including Pauline Adams and Ross Tuckley. In an email dated 15 January 2021 she explained what would happen, with Employee X starting on 18 January. In that email she also confirmed that Employee X’s original role was not going to be filled and the other BSO in Youth Justice would cover 2 roles. In evidence we heard this was because the workload within Youth Justice had decreased during the pandemic so there was less support required from the BSOs. We accepted this explanation as credible.

[72]On 22 January 2021 the claimant had a video call with Ms Randolph. During this meeting Ms Randolph told the claimant that her placement would be ending on 5 February 2021. The claimant says that Ms Randolph told her that this was due to a restructure. Ms Randolph disputes this and said she would not have used the word ‘restructure’ and instead would have said ‘reshuffle’. We preferred Ms Randolph’s evidence on this. The underlying situation was not a restructure, as there were no changes to the roles that existed within the different teams. All that was happening was that one person was redeployed.

[73]The claimant followed up the conversation by email asking for confirmation and the reasons. Ms Randolph responded to say that “due to changes within the business support roles within the service your services will no longer be required”.

[74]The claimant wrote again to Ms Randolph again on 26 January 2021 asking that she confirm that it was due to ‘restructure’. Ms Randolph responded, referring to her earlier email and she said that in her opinion she had given the business reasons and the matter was closed.

[75]The claimant’s assignment ended on 5 February 2021.

[76]The claimant raised a further grievance on 2 February 2021. This was addressed to Ross Tuckley but she sent it to CDL to pass on to him. In this the claimant said she had whistleblown and she believed her assignment was terminated because of her complaints and not for the reasons given by Ms Randolph. The claimant said she wanted a response in 7 business days.

[77]CDL forwarded the grievance to Mr Tuckley on 4 February 2021. Mr Tuckley wrote to the claimant on 18 February 2021. He accepted the claimant had made complaints about her pay and he noted this issue had been rectified. Ms Tuckley also informed the claimant that Matrix had changed their process to ensure similar situations would not arise in the future. He denied that the claimant’s assignment was terminated because of this complaint. He stated that the assignment was terminated for a “genuine business reason, being the requirement to redeploy another employee into the Young Hackney Team”.

The Law

[78]The claimant pursues claims that she was subjected to detriments on the grounds of having made a protected disclosure (section 47B Employment Rights Act 1996); Protected disclosures

[79]Section 43A of the ERA states: “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.”

[80]Section 43B of the ERA states: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— […] (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, […] (d) that the health or safety of any individual has been, is being or is likely to be endangered, […] (e) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

[81]To succeed with any whistleblowing claim a claimant must first show they have made a qualifying disclosure as defined above. This comprises the following elements: 81.1. there must be a disclosure of information; 81.2. the individual genuinely believed the disclosure was in the public interest; and 81.3. in the reasonable belief of the individual that information showed one or more of the matters set out in section 43B.

[82]The Court of Appeal provided further guidance in Kilraine v London Borough of Wandsworth

[2018] ICR 1850

. It said: “30 the concept of ‘information’ as used in section 43B(1) is capable of covering statements which might also be characterized as allegations. Langstaff J made the same point in the Judgment below at [30], set out above, and I would respectfully endorse what he says there. Section 43B(1) should not be glossed to introduce into it a rigid dichotomy between “information” on the one hand and “allegations” on the other […] 31. On the other hand, although sometimes a statement which can be characterised as an allegation will also constitute "information" and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation will do so. Whether a particular allegation amounts to a qualifying disclosure under section 43B(1) will depend on whether it falls within the language used in that provision. […] 35 The question in each case in relation to section 43B(1) (as it stood prior to amendment in 2013) is whether a particular statement or disclosure is a "disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the [matters set out in sub-paragraphs (a) to (f)]". Grammatically, the word "information" has to be read with the qualifying phrase, "which tends to show [etc]" (as, for example, in the present case, information which tends to show "that a person has failed or is likely to fail to comply with any legal obligation to which he is subject"). In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1)……... 36 Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in Chesterton Global at [8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.”

[83]The Court of Appeal considered the ‘public interest’ test in Chesterton Global Ltd v Nurmohamed

[2018] ICR 731

. The Court of Appeal identified the following principles: “27 […] The tribunal thus has to ask(a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and

(b) whether, if so, that belief was reasonable 28 […] that exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest […] All that matters is that the tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker [….] 29 […] the necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. […] 30 […] while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it […] 31 […] the essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest […].”

[84]In relation to the public interest, the Court of Appeal said: “36 […] The statutory criterion of what is “in the public interest” does not lend itself to absolute rules, still less when the *745 decisive question is not what is in fact in the public interest but what could reasonably be believed to be. I am not prepared to rule out the possibility that the disclosure of a breach of a worker's contract of the Parkins v Sodexho kind may nevertheless be in the public interest, or reasonably be so regarded, if a sufficiently large number of other employees share the same interest. I would certainly expect employment tribunals to be cautious about reaching such a conclusion, because the broad intent behind the amendment of section 43B(1) is that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers— even, as I have held, where more than one worker is involved. But I am not prepared to say never. In practice, however, the question may not often arise in that stark form. The larger the number of persons whose interests are engaged by a breach of the contract of employment, the more likely it is that there will be other features of the situation which will engage the public interest. 37. Against that background, in my view the correct approach is as follows. In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker. […] The question is one to be answered by the tribunal on a consideration of all the circumstances of the particular case, […] the number of employees whose interests the matter disclosed affects may be relevant, but that is subject to the strong note of caution which I have sounded in the previous paragraph.”

[85]Section 43(c) sets out that if a qualifying disclosure is made to an individual’s employer it will be a protected disclosure. Detriment on the grounds of having made a protected disclosure (section 47B Employment Rights Act 1996);

[86]Section 47B of the Employment Rights Act 1996 says: “A worker has the right not to be subjected to any detriment by an act, or any deliberate failure to act, by his employer done on the ground that the workers made a protected disclosure.”

[87]Section 47B that if the worker is an employee then dismissal cannot be a detriment. The reason for this is that an employee can bring a claim for automatic unfair dismissal under section 103A Employment Rights Act 1996. A worker who is not an employee cannot bring an unfair dismissal claim so if their employment is terminated it can only be brought as a claim for a detriment.

[88]Detriment is not defined in the Employment Rights Act 1996. The caselaw on discrimination provides guidance on what is a detriment. Something will be a detriment if a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment. An unjustified sense of grievance cannot amount to a detriment. Shamoon v Chief Constable of the RUC

[2003] IRLR 285

[89]Section 48(2) provides that on a complaint to an Employment Tribunal “… it is for the employer to show the ground on which any act, or deliberate failure to act, was done”

[90]Care must be taken to establish the ‘reason why’ the employer acted as it did. The ‘reason why’ is the set of facts operating on the mind of the relevant decision-maker, it is not a ‘but for’ test. The correct test is whether 'the protected disclosure materially influences (in the sense of being more than a trivial influence on) the employer's treatment of the whistleblower’ (Fecitt v NHS Manchester

[2012] IRLR 64

at [45]).

[91]If an employment tribunal can find no evidence to indicate the ground on which a respondent subjected a claimant to a detriment, it does not follow that the claim succeeds by default. In Ibekwe v Sussex Partnership NHS Foundation Trust,

UKEAT/0072/14/MC

the EAT concluded that there were no grounds for interfering with the tribunal’s unequivocal finding that there was no evidence that an unexplained managerial failure to deal with an employee’s grievance was on the ground that the grievance contained a protected disclosure. Discussion and conclusions Protected Disclosures

Discussion and conclusions

[92]We have set out above a summary of what was contained in the claimant’s email to Mr Tuckley dated 30 October 2023. We find that this was a qualifying disclosure. The reasons for this are as follows: 92.1. The claimant set out in her email the background to her complaint, namely the errors in her pay and that she had been wrongly paid since the outset. This is information. 92.2. We accept that the claimant believed she was disclosing that information in the public interest. By this point she had been told that her own situation had been resolved. The claimant expressly raises concerns about other agency workers being affected and she says that this needs to be looked into. 92.3. We find that it was reasonable for her to believe that it was in the public interest. The claimant had been told by that point that it was an error in the underlying system that was used that enabled obsolete pay rates to be used. It is reasonable to understand from this that the problem was not just a one-off error and could be widespread within the council. 92.4. During her evidence we asked the clamant failure to comply with a legal obligation she believed this information showed. The claimant was not clear about this in her evidence (though later in the hearing she did ask other witnesses about the Agency Worker Regulations 2010). However, we have noted she does expressly refer to “day one agency rights” in the email. We have concluded that the claimant was aware that agency workers did have certain legal rights and she was referring to this in her email, albeit she did not expressly set out what these rights were. Therefore we accepted that she reasonably believed that she was disclosing information that showed the respondent had not complied with its legal obligations to agency workers. 92.5. We have also noted that the respondent and CDL had not disputed that the claimant had been entitled to higher rates of pay and increases in pay and they had resolved her situation promptly. In these circumstances it was reasonable for the claimant to conclude that the respondent had breached its obligations to her and may be breaching its obligations to other agency workers.

[93]For these reasons we accepted that the email of 30 October 2020 was a qualifying disclosure. It is accepted by the respondent that because it was made to them it is then a protected disclosure under section 43C Employment Rights Act 1996.

[94]The claimant has also said that the email of 2 November 2020 and the email of 25 November 2020 are also qualifying disclosures and similarly protected. These emails reiterated the same points. On 2 November 2020 the claimant emphasized that she believed that others were affected and she thought there should be an investigation. On 25 November 2020 she again reiterates concerns that agency workers may not have been paid properly. For the same reasons as set out above we have concluded that those emails are also protected disclosures. Detriments

[95]The claimant says she was subjected to 3 detriments. We will address these in chronological order.

[96]The first stated detriment is about Ms Randolph’s conduct towards the claimant in December 2020 and January 2021. This comprises 3 different elements. These are: 96.1. hostility; 96.2. micromanaging; and 96.3. being told to return equipment.

[97]The claimant relied on the emails dated 2 December 2020 and 13 January 2021 as evidence of hostility and micromanagement. We did not find that those emails showed any evidence of hostile behaviour by Ms Randolph or that she was micromanaging the claimant. On the contrary we found these were appropriate emails from a manager that provided support to the claimant when she was dealing with an increased workload due to the cyberattack. The claimant has not proved on the balance of probabilities that Ms Randolph acted as she has alleged. Therefore, she has not shown she was subjected to the alleged detriment by the respondent.

[98]In December 2020 Ms Randolph did contact the claimant to ask her to return the chair and the Chromebook. Ms Randolph asked her to return the chair because the claimant had received in September a proper orthopaedic chair in line with the assessment that had been carried out. The first chair had only been provided on a temporary basis, hence she was asked to return it.

[99]We accept that the claimant was told to return the chair. In the circumstances we do not find that this was a detriment. It was unclear from the claimant’s evidence why she viewed this as being detrimental to her. We also cannot see how it could reasonably be viewed as a detriment, given that it had only been provided temporarily and the claimant no longer needed it as she already been provided with a different one.

[100]With regard to the laptop, Ms Randolph asked the claimant if it could be returned if she was not using it. The claimant responded to say she was using the Chromebook. As a result Ms Randolph did not ask for it to be returned. We found that the claimant was not told to return the laptop therefore she has not shown the alleged detriment occurred.

[101]For completeness, we also have concluded that Ms Randolph’s reasons for enquiring about the equipment was wholly unrelated to the claimant’s complaints. The chair needed to be returned at some point anyway. Likewise, we accepted that ICT had asked that spare equipment was returned and Ms Randolph was actioning this. It was mere coincidence that Ms Randolph asked the claimant about the equipment shortly after the claimant raised her complaint.

[102]Therefore, the claimant has not shown the respondent subjected her to these detriments (hostility, micromanagement and return of equipment) so this claim does not succeed.

[103]The second detriment was the termination of the claimant’s placement with the Respondent. The claimant’s placement was terminated and this is a detriment. It was Ms Randolph who made this decision so the detriment was by the respondent. The question for us to determine is whether the termination was due to the protected disclosure. This involves considering whether the fact that the claimant made the protected disclosures materially influenced the decision.

[104]The respondent provided evidence about the need to redeploy a permanent employee in the same role as the claimant on the advice of Occupational Health. We accepted the respondent’s evidence that this situation existed. We also accepted Ms Randolph’s explanation about why she had decided to redeploy Employee X into the role that the claimant was undertaking. There was a genuine business reason for terminating the claimant’s placement that was based on the role she was doing, rather than anything about her personally.

[105]We considered whether, despite the underlying reason for moving Employee X, Ms Randolph’s decision to terminate the claimant’s engagement, rather than any other agency worker, may still have been materially influenced by the claimant’s protected disclosure.

[106]The case the claimant put forward was essentially that Ms Randolph’s attitude to her changed after she raised her complaints. The claimant believed quite early on in December that she was going to be dismissed. She said that Ms Randolph became hostile, asked for equipment to be returned and micromanaged her to ensure she had completed her work before ending the assignment. We have already concluded that Ms Randolph was neither hostile nor micromanaging in her behaviour towards the claimant. She was merely trying to support the claimant in difficult circumstances. We have also concluded the request for the equipment was unrelated to the disclosures and the timing was coincidental.

[107]The only evidence we had from which we could potentially infer any adverse attitude from Ms Randolph towards the claimant is the email dated 18 November 2020, in which she expressed her annoyance to Mr Tuckley. We concluded that the Ms Randolph had felt disappointed by the fact the claimant raised her grievance. However, based on her oral evidence, we accepted it was her instant reaction on seeing the grievance. There was no other evidence that indicated Ms Randolph may have held any ongoing ill will towards the claimant. The subsequent evidence, such as the emails from December and January, show Ms Randolph being a supportive manager towards the claimant.

[108]In conclusion, we accepted the respondent’s evidence that the need to transfer Employee X into the claimant’s role was the only reason for terminating the claimant’s assignment. The fact the claimant had raised her complaints in October and November 2020 was immaterial to this decision. Therefore, this claim does not succeed.

[109]The third complaint is that Ms Randolph and Mr Tuckley gave untrue and conflicting reasons for terminating the claimant’s placement.

[110]We found that Ms Randolph told the claimant that her employment was terminated due to a “reshuffle”. This was in the meeting on 22 January 2022. In follow up email Ms Randolph said it was “due to changes within the business support roles”. In response to the claimant’s second query Ms Randolph just referred back to this email.

[111]First, we note that we have already concluded that the reason the claimant’s employment was terminated was the redeployment of Employee X. Although Ms Randolph does not describe the underlying situation with Employee X to the claimant she was clearly referring to this when she said there was a “reshuffle” and changes in BSO roles. Therefore, did has not given an untrue reason.

[112]We also do not find that the reasons given by Ms Randolph could be described as conflicting. The reasons she gave are just different ways of describing the same thing, i.e. that an employee had been redeployed into the claimant’s role and therefore the respondent no longer needed an agency worker to fill that position. The explanations are consistent with what had happened.

[113]The claimant said that Ms Randolph had initially said ‘restructure’. We concluded this was not the case. However, if restructure had been used we have concluded it would still not be inconsistent. While restructure can mean a larger scale formal reorganisation of a business, it can also be used more informally. It would not be completely inaccurate to describe what happened as a restructure as a permanent employee was moved into a role being filled by an agency worker.

[114]The explanation given by Mr Tuckley in his response to the claimant’s February 2021 grievance was also true and consistent with what Ms Randolph said. Mr Tuckley provided a greater level of detail than Ms Randolph had in her emails. It was still referring to the same underlying situation which could accurately be described as a ‘reshuffle’, ‘restructure’ or ‘changes within the business support roles’.

[115]The claimant has not proved the alleged detriment occurred. The reasons were not untrue and neither were they conflicting. On the contrary they were accurate and consistent. Therefore, this claim also fails.

Summary

[116]We found that the claimant did make protected disclosures. However, we have also concluded that this did not materially influence the respondent’s decision to terminate her placement as an agency worker. There was a different genuine business reasons for that decision.

[117]The other complaints also do not succeed either because: 117.1. the claimant did not prove Ms Randolph was hostile or micromanaged her; 117.2. Ms Randolph did not tell her to return the Chromebook; 117.3. the request to return the chair was not a detriment and was not due to the protected disclosure; and 117.4. the claimant did not prove that she was given conflicting and untrue reasons for the termination of her placement.

Summary

[1]Under Rule 70 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider a Judgment where it is necessary in the interests of justice to do so. On reconsideration, the Judgment may be confirmed, varied or revoked.

[2]An application for reconsideration shall be presented in writing within 14 days of the date upon Judgment is sent to the parties. The Judgment in this case was sent to the parties on 7 August 2024.

[3]On 20 August 2024 the claimant sent an email to the Employment Tribunal an application for reconsideration. The email was brief. The claimant included a list of legislation she wanted reviewed and the judgment to be reconsidered. She stated she had not been represented so “may not have been able to address matters adequately or in the right legal format” and she stated that she strongly believed the termination of her role was a detriment due to making a protective disclosure.

[4]Under Rule 70, a Judgment will only be reconsidered where it is necessary in the interests of justice to do so. This allows an Employment Tribunal a broad discretion to determine whether reconsideration of a Judgment is appropriate in the circumstances. The discretion must be exercised judicially. This means having regard not only to the interests of the party seeking the reconsideration but also the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.

[5]The procedure upon a reconsideration application is for the Employment Judge that heard the case to consider the application and determine if there are reasonable prospects of the Judgement being varied or revoked. Essentially, this is a reviewing function in which the Employment Judge must consider whether there is a reasonable prospect of reconsideration in the interests of justice. There must be some basis for reconsideration. It is insufficient for an applicant to apply simply because he or she disagrees with the decision.

[6]If the Employment Judge considers that there is no such reasonable prospect then the application shall be refused. Otherwise, the original decision shall be reconsidered at a subsequent reconsideration hearing. The Employment Judge’s role therefore upon the considering of the application upon the papers initially is to operate as a filter to determine whether there is a reasonable prospect of the Judgment being varied or revoked were the matter to be the subject of reconsideration hearing.

[7]The Employment Appeal Tribunal has given guidance as to the nature of a request for reconsideration:a. Reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to re-argue matters in a different way or adopting points previously omitted.

b. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule.

c. It is not a means by which to have a second bite at the cherry, or is it intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.

d. Tribunals have a wide discretion whether or not to order reconsideration. Where a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.

[8]The claimant has asked that the Judgment is reconsidered but she has not provided any reasons why it should be reconsidered. She has simply drawn attention to the relevant legislation, the fact that she was a litigant in person and her belief that her claim should have succeeded. None of these are reasons why the judgment should be reconsidered for the following reasons:8.1 The legal issues in the case had been identified at a preliminary hearing on 21 June 2021 and the list of issues finalised after this. The Tribunal has already heard the evidence and applied the relevant law including, where relevant, the legislation the claimant has listed.

8.2 The Tribunal regularly hears claims brought by unrepresented claimants. This in itself is not unusual. The Tribunal understands that unrepresented parties may not present their case or address the Tribunal in the same way as a legally represented party would.

8.3 It is the Tribunal’s role to consider the evidence and make findings of fact. In this case the Tribunal heard the evidence and reached a different conclusion to the claimant’s belief on that matter.

[9]I am not satisfied that it is in the interests of justice to reconsider the Judgment. The claimant has not put forward any good reason to reconsider matters which have already been fully considered by the Tribunal following a fair hearing.