Ms M Bignall v London Ambulance Service NHS Trust: 3200808/2021 and others

EMPLOYMENT TRIBUNALS

Case No 3200808/2021, 3203902/2021, 3201386/2022

Between

Ms M BignallClaimant

London Ambulance Service NHS TrustRespondent

Before

Tribunal Judge R Overton

Mr S Middleton (instructed by Counsel) for claimant

Mr S Nicholls (instructed by Counsel) for respondent

Date 5 October 2023

JUDGMENT

[1]The Claimant’s claim of unauthorised deduction from wages is dismissed upon withdrawal.

[2]The Claimant’s claim of victimisation contrary to s.27 of the Equality Act 2010 fails and is dismissed.

[3]The Claimant’s claim of detriment related to health and safety under s.44(1)(c) Employment Rights Act 1996 fails and is dismissed.

[4]The Claimant’s claim of detriment related to public interest disclosure contrary to s. 47B Employment Rights Act 1996 fails and is dismissed.

[5]The Claimant’s claim of unfair dismissal contrary to s.98 Employment Rights Act 1996 fails and is dismissed.

[6]The Claimant’s claim for notice pay fails and is dismissed. Tribunal Judge Overton sitting as an

REASONS

[1]The Claimant’s claims of unfair dismissal, victimisation, detriment related to public interest disclosure, detriment related to health and safety, unauthorised deduction from wages and notice pay were dismissed at the conclusion of an eight day hearing including reading time, submissions from the parties and deliberation by the Tribunal.

[2]The Respondent’s application for costs, made at the conclusion of oral judgment and heard on 7 November 2023, is on the basis that the Claimant acted unreasonably in bringing the proceedings, or part thereof and that the claims had no reasonable prospects of success. The Respondent argues in the alternative that had the claim been restricted to a claim of unfair dismissal, the hearing time required and therefore the costs would have been significantly reduced.

[3]At the hearing of the Respondent’s costs application, Ms Bignall gave oral evidence and was cross-examined by the Respondent. Both representatives provided written submissions and made oral arguments. A bundle had been prepared with relevant documents.

[4]The Respondent has applied for costs in the sum of £20,000 having calculated their costs from the date of exchange of witness statements onwards and then having reduced those costs to the cap applied by rule 78(1) of the Employment Tribunals Rules of Procedure. The Respondent provided a schedule of costs incurred. For clarity, the Respondent was not conceding entitlement to all costs incurred but had made their application with an eye to proportionality.

Facts

[5]Ms Bignall’s original claims included claims for direct and indirect discrimination. These claims were the subject of deposit orders and Ms Bignall subsequently withdrew those claims and did not pay the deposit.

[6]Ms Bignall was represented at various stages of the proceedings by two publicaccess barristers.

[7]Ms Bignall received positive legal advice on the merits of her claim.

[8]The Respondent sent two costs warning letters to the Claimant on 15 June 2022 and 26 January 2023 and at least the second of these letters was responded to by the Claimant's legal representative at the time.

[9]In cross-examination at the merits hearing, Ms Bignall gave evidence that indicated her victimisation claim could not succeed. She also conceded facts that indicated her claim for unauthorised deductions from wages could not succeed.

[10]Ms Bignall has 5 adult children, three of whom are studying at university and are financially reliant upon her.

[11]Ms Bignall has cashed in a workplace pension in order to fund her claim and has therefore negatively affected her future financial standing.

[12]She has obtained new employment and has set up her own business but her new work is insecure and variable in hours and her business is at a fledgling stage and is bringing in little income. Overall, her finances have reduced since her employment at the Respondent from around £55,000 per annum to approximately £40,000 in 2022/23 and looking significantly lower that that in 2023/24.

The law

[13]Rule 75 The Employment Tribunals Rules of Procedure: (1) A costs order is an order that a party (“the paying party”) make a payment to – (a) another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative;

[14]Rule 76 The Employment Tribunal Rules of Procedure: (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that – (a) party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in wither the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospects of success

[15]Rule 78 The Employment Tribunals Rules of Procedure: (1) A costs order may – (a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000 in respect of the costs of the receiving party;

[16]Rule 84 The Employment Tribunals Rules of Procedure: In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.

[17]Both representatives drew the Tribunal’s attention to caselaw in their submission/skeleton argument, including that the tribunal has a wide discretion, that costs are the exception and that cost awards are compensatory and not punitive in nature.

[18]We were reminded by Opalkova v Acquire Care Ltd EA-2020-00345-RN to consider each claim separately, having concluded that a party has acted unreasonably in the bringing or conduct of proceedings. We were also reminded that the means of a paying party can be considered at the point of deciding whether to make an award and then at the point of deciding the amount of award and that whether or not the paying party was represented is a relevant consideration.

Conclusions

[19]We considered that the Claimant’s claim for unfair dismissal, although it was ultimately unsuccessful, was not without merit and therefore it could not be said that the unfair dismissal claim had no reasonable prospect of success and we find that she did not act unreasonably in bringing that claim.

[20]The claim for notice pay followed the claim for unfair dismissal.

[21]The claims of victimisation, detriment, and unpaid wages were unreasonably pursued.

[22]In cross-examination it appeared that the Claimant may not have fully understood the basis for her claims for wages and victimisation and on the evidence they had no reasonable prospect of success. That fact should have been evident to the Claimant when drafting and/or reviewing her witness statement in light of the Respondent’s documents and witness statements. These claims were dealt with reasonably swiftly during the hearing and we find that they did not contribute in any meaningful way to the costs incurred by the Respondent.

[23]The claim for detriment related to health and safety changed during the course of the hearing and submissions - from a claim under section 44(1)(c) Employment Rights Act 1996 to a claim under 44(1)(a) &/or (b). The factual basis for this claim also remained unclear from the claimant’s evidence and she was unable to refute the clear factual evidence of the Respondent concerning the existence of means by which health and safety concerns could be raised. This should have been evident to her when drafting and/or reviewing her witness statement in light of the Respondent’s documents and witness statements.

[24]Given the oral evidence of the Claimant, the claim for detriment related to public interest disclosure had no reasonable prospect of success. This should have been evident to the Claimant at the time of drafting and/or reviewing her witness statement in light of the Respondent’s documents and witness statements.

[25]We find that the two detriment claims were unreasonably pursued by the Claimant and that they made the more significant impact upon the time taken by the Respondent in defending the claims and the costs incurred.

[26]We acknowledge that Ms Bignall had sought legal advice and representation at her own expense and at times she was represented and at other times was not. We acknowledge that she had a genuine belief in the merits of her case overall and that the merits advice she received supported her belief. When encouraged to consider the merits of some of her claims by the Tribunal by means of a deposit order, she did so and withdrew those claims. However, apart from the unfair dismissal and notice pay claims, she pursued a number of claims for which she either failed to produce evidence in support or she ought to have known that her own evidence to the Tribunal did not support those claims and therefore it was appropriate to exercise our discretion to make a costs award.

[27]We considered that it was the two detriment claims that most contributed to the respondent incurring unnecessary costs. We took account of Ms Bignall’s means and her financial commitments as we are permitted to do by rule 84. We used the Tribunal’s wide discretion and concluded that it was appropriate to make a costs order in the amount of £3,000. Tribunal Judge R Overton acting as an JUDGMENT on liability having been sent to the parties on 10 October 2023 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the reasons are provided below. I apologise to Ms Bignall for the delay in providing these written reasons. It appears that Ms Bignall’s initial request for written reasons, sent by email, was either lost in the ether or was otherwise missed and was not passed to me. A later request was passed to me in August 2024 on the basis that this was a request being made outside of the time limit as no earlier requests could be found on the Tribunal Service system. Following further correspondence from Ms Bignall, earlier requests for written reasons were identified in September 2024 and in response to a request from the Employment Tribunal, in October 2024 Ms Bignall provided a copy of her initial request for written reasons, which I find had been made within the time limits. Ms Bignall had therefore made an in-time request for written reasons. There has been further delay in providing these reasons due to pressure of work.

Conclusions

[1]The Claimant has brought claims across three claim forms. The claims were consolidated.

[2]A list of issues had been agreed at the preliminary hearing of 30 January 2023. At this hearing the claims of direct discrimination on grounds of age and race, and the claims of indirect discrimination on grounds of age, race and sex were dismissed upon withdrawal. In March 2023 claims of direct discrimination on the grounds of sex and sexual orientation were also dismissed upon withdrawal and the withdrawal of the direct and indirect discrimination claims had the effect of reducing the number of respondents from seven to one – The London Ambulance Service.

[3]The remaining issues for the Employment Tribunal are as follows: Time limits The first claim form was presented on 27 February 2021, within a month of the end of efforts at early conciliation through ACAS. That period of early conciliation began on 18 December 2020 and so any act or omission which took place more than three months before that date, i.e., before 19 September 2020, may be out of time. To complain of any earlier detriments, Ms Bignall must prove: a) that it was not reasonably practicable for the claim to be made within the time limit; and b) if so, that it was made within a further reasonable period. Unfair dismissal What was the reason for Ms Bignall’s dismissal? The Trust says that it was on grounds of her conduct, and in particular in relation to allegations of bullying of colleagues. If the dismissal was for a potentially fair reason, did the Trust act reasonably in all the circumstances in treating that as a sufficient reason to dismiss her? The Tribunal will usually decide, in particular, whether: a) the Trust had a genuine belief in her misconduct; b) made on reasonable grounds; c) following a sufficient investigation and a fair process; and d) dismissal was ‘within the range of reasonable responses’ open to an employer in the circumstances. If the dismissal was unfair, did Ms Bignall contribute to the dismissal by her conduct? This requires the Trust to prove, on the balance of probabilities, that she committed the alleged misconduct. If the dismissal was unfair on procedural grounds, what difference would a fair hearing have made to the outcome? Notice pay claim Was Ms Bignall in fundamental breach of contract? This requires the Trust to prove on balance that she was guilty of the misconduct alleged and that it was sufficiently serious to amount to a fundamental breach. Victimisation Ms Bignall made a number of potential protected acts before her dismissal: a) Initiating early conciliation through ACAS on 18 December 2020; b) Submitting her first claim form on 27 February 2021; c) Informing the Trust during the appeal process, in her written submissions made on or about 7 March 2021, that she had issued proceedings, and d) Submitting the second claim form on 17 May 2021 Alternatively, in each case, did the Trust believe that she had done so? Did the Trust, as a result of any such act: a) refuse to uphold her appeal against the final written warning, or b) dismiss her? Public Interest Disclosure What did Ms Bignall say or write? She asserts that: a) at the beginning of the COVID pandemic each paramedic had to have a mask fitted and tested to ensure, to a specified standard, that it was effective to prevent the spread of the virus; b) in her case the test was carried out by a Ms Rachel Cooper, and it did not fit properly; c) despite this, Ms Bignall was required to carry out her duties as normal and respond to call outs from patients with COVID. The disclosure she relies on is that on subsequent call-outs to patients with COVID she told ambulance control over the two-way radio that her mask did not fit properly and that she should not be attending patients with COVID. The period in question covers the time from the issue of the mask to 10 April 2020 when she went off sick. Did that disclose information which in her reasonable belief tended to show that her health or safety of that of the patient had been put at risk? If so, did she reasonably believe that the disclosure was made in the public interest? The Trust accepts that any such concern is in the public interest. If so, was Ms Bignall subjected to a detriment by the Trust or another worker as a result in that her reports were ignored and a) she was exposed to Covid from patients who were ill with the virus; or b) she ran the risk of infecting patients or others, for which she would have responsibility. If the act of detriment was done by another worker (in Ambulance Control) can the Trust show that it took all reasonable steps to prevent such actions? Health and safety detriment complaints Was there a health and safety representative or committee at work? If so, was it reasonably practicable for Ms Bignall to raise her concerns about her mask with them? If not, did she bring to the Trust’s attention by reasonable means circumstances connected with her work which she reasonably believed were harmful or potentially harmful to health or safety? If so, did she suffer the following detriments as a result: a) she was exposed to Covid from patients who were ill with the virus; or b) she ran the risk of infecting patients or others, for which she would have responsibility? NB. No reasonable steps defence applies to this complaint. Unlawful deduction from wages Is Ms Bignall entitled to one month’s arrears of wages for having worked a month in lieu at the outset of her employment?

Procedure

[4]The Claimant gave evidence on her own behalf. The Claimant’s ambulance crewmate, Ms Rebecca Gent, was called by the Claimant to give evidence. The Respondent called Mr Peter Rhodes, Deputy Director of Ambulance Operations; Mr Damien McGuinness, Director of People and Culture and Ms Pauline Cranmer, Director of Clinical Education to give evidence on its behalf. All witnesses gave evidence by written witness statements which the witnesses adopted as their evidence-in-chief under oath. The witnesses were subject to cross examination and separate questions from the Tribunal. The parties were asked whether any adjustments were required to assist full participation in the Tribunal process. None were required.

[5]The witness statements referred to documents contained in a single agreed hearing bundle of around 1,400 pages. The Respondent provided a chronology.

[6]Both parties were represented by Counsel. Both representatives provided written submissions and also made oral submissions following the conclusion of the witness evidence.

Findings of Fact

[7]All the oral evidence we heard was considered along with the claimant’s claims, the respondent’s responses and the documents we were referred to during the hearing. Below I set out the facts that are directly relevant to the issues to be decided by the Employment Tribunal.

Background

[8]Ms Bignall commenced employment with the Respondent on 1 July 1996. She commenced work as an Emergency Medical Technician, then held a number of other roles within the Respondent organisation until, in 2016, Ms Bignall became a Band 6 paramedic for the Respondent, located at Whipps Cross Ambulance Station. Relationships at the Whipps Cross Ambulance station

[9]In May 2019 Ms Bignall was the subject of a complaint of bullying by a colleague, Ms Jamieson. The complaint was made to Mr Evans, the Location Group Manager and he allocated the investigation of the complaint to Mr Sean Gallagher (Station Support Manager). The investigation report of 8 November 2019 notes that at the time of these complaints, there had been other complaints against Ms Bignall which were being dealt with by way of mediation.

[10]Ms Jamiesons’s complaint of May 2019 involved allegations concerning 15 different incidents. Only two of the incidents complained of met the threshold for a case to answer.

[11]The investigation report recorded that a number of Ms Jamieson’s allegations were supported by another colleague, JT. It also noted that a number of the allegations had been the subject of an earlier complaint in 2017 by Ms Jamieson against Ms Bignall and which had not been pursued by the Respondent at the time.

[12]The investigation report stated that there had been a breakdown of relationships between all those involved.

[13]It does not appear that a disciplinary hearing was held, or the complaint of May 2019 formally resolved or concluded. Covid measures

[14]In early 2020 the spread of Coronovirus (Covid-19) within the UK and worldwide led to the respondent, along with other organisations, introducing measures to protect staff and members of the public.

[15]On 1 March 2020 Ms Bignall was tested for fit with a particular piece of personal protective equipment (PPE) - an FFP3 mask. There were two versions of the mask but neither version of the mask fitted the claimant. The respondent accepted that Ms Bignall had been fitted for an FFP3 mask but had failed the fit test. There was therefore no FFP3 mask available for Ms Bignall to use when she was performing her job.

[16]Over the course of March 2020 and beyond, a number of guidance bulletins were issued by the respondent to its staff on how to carry out their jobs in the context of coronavirus. The guidance was regularly changed and updated as the pandemic unfolded.

[17]From 5 March 2020 the respondent’s guidance to staff was that attendant ambulance staff were to don full PPE, including an FFP3 mask in all cases of ‘Covid-possible’ patients or persons who had contact with a ‘Covid-possible' patient and ‘Covid-possible’ and ‘contact’ were defined.

[18]It was practice in the case of a two-person crew for one crew member to be designated as the attendant on a particular call-out, with the other crew-member being designated as the driver. The crew decided between themselves who would carry out which role. The guidance provided that in the case of contact with a ‘Covid-possible’ patient, only the attending clinician needed to don PPE. The driver could remain in the cab with the door between the cab and the back of the ambulance being kept closed. The driver should have a set of PPE nearby in case they were needed to assist with the patient.

[19]If the patient was not ‘Covid-possible’, the ambulance crew were to wear FFP2 masks which are paper-like surgical masks and were available to all crew members.

[20]On 11 March 2020 the updated guidance stated that FFP3 masks were a minimum piece of PPE to be worn when coming within one meter of a Covidpossible patient requiring an aerosol generating procedure (such as in a cardiac case) or when coming within one meter of a confirmed Covid case or someone with acute respiratory infection. If close contact was to be made with a possible (but not confirmed) case of Covid and no aerosol generating procedure was to be carried out, a FFP2 surgical mask was considered sufficient although ambulance crew were advised to upgrade their PPE if they felt at risk.

[21]The updated guidance of 12 March 2020 contained a reminder that patients with suspected Covid-19 should be treated like all other patients, with the crew using their clinical assessments and judgment to treat them appropriately as per the Respondent’s guidance.

[22]The guidance of 18 March 2020 detailed a ‘doorstep challenge’ to whomever opened the door. Ambulance crews were to use that ‘doorstep challenge’ to help with their risk assessment of the situation. The guidance concerning the use of PPE by the designated driver remained the same, with drivers having PPE to hand in the event that they were required to assist the attending crew member.

[23]On 23 March 2020 a Covid 19 email update was sent to all staff. This update stated the pressures the respondent was under in the fast-changing Covid situation and confirmed that staff were not expected to go into situations without the correct PPE.

[24]On 27 March 2020 the guidance changed so that the ‘doorstep challenge’ was discontinued and Covid-19 was to be presumed in all face-to-face attendances but ‘possible’ and ‘confirmed’ cases were still to be identified by the use of questions. An FFP3 mask was to be worn in possible or confirmed Covid-19 cases with a surgical mask being worn in cases of close contact with all other patients. A crew-member remaining over two meters away from a patient did not require PPE.

[25]The guidance of 2 April 2020 was changed to the effect that a crew member in close contact with a patient needed to wear an FFP2 surgical mask and an FFP3 mask was needed only in cases of carrying out an aerosol generating procedure.

[26]Although ambulance crews would normally decide between themselves who was to drive the vehicle and who was to be the attendant to the patient, as Ms Bignall had failed the fit test for the two preferred FFP3 facemasks provided by the respondent, she was effectively designated as the driver of her crew by herself and her crewmate.

[27]On one occasion Ms Bignall was allocated a call-out to convey a patient with confirmed Covid to the hospital. She informed Ambulance Control that she did not have the appropriate PPE as she did not fit the FFP3 mask and that she should not be sent to Covid-confirmed patients. It was Ms Bignall’s case that Ambulance Control tried to persuade her to attend and that they only desisted from this because there was another ambulance crew closer to the call-out destination. Nonetheless, Ms Bignall was stood-down from that call and another crew was sent instead.

[28]It was accepted by Ms Bignall that Ms Bignall and the Ambulance Control staff were unknown to each other and that it was not feasible that Ambulance Control staff could ‘punish’ Ms Bignall for her disclosure about the FFP3 mask by deliberately sending her to Covid-confirmed patients.

[29]As the effective designated driver, Ms Bignall located herself in the driver’s seat in the ambulance cab. On a call-out she remained in the cab, with the internal partition door closed, while her crew colleague was assessing a patient in the back of the ambulance. She maintained a minimum of one meter distance between herself (including her equipment) and any member of the public or patient. These steps were in line with the respondent’s Covid guidance of the time. Disciplinary investigation, hearing and appeal 2020-2021

[30]On 28 March 2020 Ms Bignall and her usual crew-mate, Ms Gent, attended the home of Patient A. Both Ms Bignall and Ms Gent attended at the door of the house and carried out a ‘doorstep challenge’. The patient then walked to the ambulance and Ms Gent attended the patient while Ms Bignall returned to the cab of the ambulance with the connecting door closed.

[31]After Ms Gent had carried out her assessments both Ms Bignall and Ms Gent walked Patient A back to his home and gave advice on what to do if his symptoms worsened. Ms Gent completed the usual Patient Report Form (‘PRF’) for this patient. A PRF was completed for every call out.

[32]Patient A called 999 a day or two later and was then conveyed to hospital by an ambulance crew, where he unfortunately died a few days after admission to hospital. The family of Patient A raised a complaint about the patient’s treatment by Ms Bignall and Ms Gent.

[33]There was no insinuation or allegation that the actions of the ambulance crew called out to Patient A on 28 March 2020, contributed to his death.

[34]In the course of investigating this complaint, the respondent discovered that 13 PRFs over the period 24 March to 4 April 2020, including that of Patient A, may have been inadequately completed. This caused the respondent to question the quality of care that had been delivered to these patients. On all but 1 of these 13 cases, Ms Bignall was the driver. On 9 of these cases Ms Bignall was working with crew-mates other than Ms Gent, as Ms Gent had been taken off frontline duties due to informing the respondent that she was pregnant.

[35]On 3 June 2020 Ms Bignall was suspended pending investigation. On 22 September 2020 Ms Bignall attended a disciplinary hearing in relation to allegations concerning her care of Patients A-M. Ms Bignall was represented by her trade union at this hearing. The allegations were made against Ms Bignall because in each case she was the more senior and experienced member of the crew and therefore the respondent considered that Ms Bignall had ‘primacy of care’, meaning that she had a level of overall responsibility for the assessment and treatment of each patient.

[36]The allegations against Ms Bignall concerned alleged(1) failures in the duty of care towards the patients,

(2) failure to follow clinical guidance,

(3) failure to follow the procedure for deviating from clinical guidance,

(4) failure to provide clinical leadership,

(5) bringing the trust into disrepute by those failures and

(6) breaching the Trust’s core values and behaviours. During the disciplinary hearing, in which she took part, Ms Bignall accepted with mitigation, the allegations 1-4. Her mitigation included reference to the stressful situation created by Covid and difficulties at the Whipps Cross ambulance station. Ms Bignall denied the 5th and 6th allegations.

[37]The outcome of this disciplinary process on 29 September 2020 was that all 6 allegations were upheld and Ms Bignall was issued with a final written warning, in place for 18 months. The investigation also noted that some of the crew colleagues interviewed had "identified the fear of intimidation as being a reason why they could not raise the issue of the level of care with [Ms Bignall]”. Ms Bignall was informed of her right to appeal the decision, but not of a time limit for doing so. Ms Bignall was also required to “write a reflection on the requirements and benefits of appropriate clinical assessments for patients within the community setting”. This letter also acknowledged that Ms Bignall had previously requested a transfer to the Edmonton station due to issues at the Whipps Cross station.

[38]Ms Bignall returned to work on 7 October 2020.

[39]On 18 December 2020 Ms Bignall entered into ACAS Early Conciliation in respect of a potential claim against the respondent.

[40]On 24 December 2020 Ms Bignall appealed against the final written warning of 29 September 2020. Ms Bignall made written submissions in advance of the appeal hearing within which she stated that she had issued Employment Tribunal proceedings against the respondent (first Employment Tribunal claim issued 27 February 2021). The appeal hearing was held on 9 March 2021 by Ms Cranmer, Director of Clinical Education.

[41]The Employment Tribunal claim issued on 27 February 2021 alleged breach of health and safety legislation and/or breach of section 44 Employment Rights Act 1996 (health and safety detriment), victimisation and age/sex/pregnancy discrimination.

[42]Ms Bignall’s grounds of appeal against the final written warning were:(1) “That she had been subject to a detriment to MB [the claimant] for seeking to prevent or reduce risks to health and safety at work

(2) The LAS approach in regard to the Disciplinary Outcome which displayed a disregard to the evident lack of confidence or certainty with the medical profession in regard to, for example, treatments, symptoms and PPE.

(3) Discrimination against MB in regard of her protected characteristic – age

(4) Associative discrimination of MB, in regard to the LAS response to the protected characteristics of her female colleague who was pregnant at the material times.”

[43]None of the grounds of appeal were upheld and Ms Bignall’s appeal against the final written warning was dismissed. The outcome of the disciplinary appeal is dated 22 March 2021. Ms Cranmer found no evidence presented as part of the disciplinary process that Ms Bignall had raised health and safety concerns at work to her management team. Health and Safety

[44]The Respondent has Local (sector) Health and Safety Committees, which are attended by a senior local Trade Union Health and Safety representative, Location General Manager and the Assistant Director of Operations. The Whipps Cross Ambulance Station has a designated Health and Safety representative. The respondent also has a Corporate Health & Safety Committee, which meets on a quarterly basis. It is expected that if a worker or employee has a health and safety concern, they will go to their local representative to raise any concerns. If the issue cannot be resolved locally, it will be escalated to the Corporate Health and Safety Committee.

[45]The Whipps Cross Ambulance Station has a health and safety noticeboard and information about the health and safety support available is on the respondent’s intranet. This was agreed by Ms Bignall. The respondent gave evidence that the intranet could be accessed from the iPads carried by ambulance crew. Ms Bignall stated that the health and safety notice board contained a ‘blizzard’ of information and it was difficult to find time to access the intranet due to early starts and busy shifts. She confirmed that she did not raise any health and safety issues with the bodies or individuals identified by the respondent. Ms Bignall stated the local health and safety representative and trade union health and safety representative were not available at the time but she produced no evidence of this and she gave no evidence of making any attempts to approach the relevant Health and Safety individuals or bodies. As Ms Bignall was able to secure assistance from her trade union with the disciplinary process we find on balance that it is likely she would also have secured assistance in relation to health and safety matters, had she approached the relevant people.

[46]Evidence in the bundle indicated that Ms Bignall’s Trade Union representative did request a hood for Ms Bignall on 23 September 2020, as an alternative to the FFP3 mask, however it is not clear if this was done at the request of Ms Bignall or was a suggestion made on the representative’s own initiative. In any case, Ms Bignall did not argue that this was an act that resulted in detriment.

[47]Ms Cranmer found that Ms Bignall had accepted in her disciplinary hearing that she had delivered suboptimal care to her patients, albeit with mitigation and that Ms Bignall had accepted that she had delivered suboptimal care in her reflective practice statement. Due to concerns about Ms Bignall’s understanding of the role of clinical primacy for patients and her responsibility in this regard, Ms Cranmer arranged for Ms Bignall to be referred to the Sector Senior Clinical Lead for support in this area.

[48]Subsequently, Ms Bignall was invited to a meeting with Ms Tiffany Wishart, Sector Senior Clinical Lead to take place on 16th April 2021. On 15th April Ms Bignall informed Ms Wishart that she would not be attending the meeting. She did in fact attend the meeting Ms Bignall but only in order to inform Ms Wishart that the meeting should not take place as it would prejudice her Employment Tribunal claim. Despite not participating in this meeting, Ms Bignall was permitted to proceed with her normal duties. Disciplinary investigation, hearing and outcome 2021

[49]In October 2020 allegations had been made by two colleagues about Ms Bignall’s behaviour towards them. Between October 2020 and April 2021, the Respondent interviewed 12 colleagues of Ms Bignall. During the investigation by Mr Crafer of the Respondent, a number of other allegations were made by other members of the station concerning Ms Bignall’s conduct towards colleagues. The allegations against Ms Bignall spanned the period 13 to 21 October 2020 and a date in December 2020. j

[50]Ms Bignall submitted a second claim to the Employment Tribunal on 17 May 2021. This claim referred to age and sex discrimination, victimisation and detriment related to health and safety.

[51]Ms Bignall was invited to attend an investigation meeting into the allegations made by some of her colleagues by letters dated 28 April 2021, 22 July 2021, 30 July 2021 and 30 October 2021. For one and possibly two of the meeting dates Ms Bignall was absent from work due to sickness. Ms Bignall did not attend any of the arranged meetings.

[52]On 11 November 2021, the day before the investigation meeting arranged for 12 November 2021, Ms Bignall emailed Mr Crafer and said that she would not be attending an investigation meeting as it would prejudice her Employment Tribunal claim. Mr Crafer responded on 12 and 16 November 2021 saying that he had considered the Tribunal claim but concluded that the complaint against Ms Bignall should continue due to the delay that would otherwise be caused and he did not believe that Ms Bignall’s Tribunal claims would be prejudiced. To the email of 16 November 2021 Mr Crafer attached a list of questions for Ms Bignall to answer to aid the investigation. This was the first time Ms Bignall was made aware by the Respondent of the details of the five allegations against her. Ms Bignall did not respond to these questions.

[53]The investigation into the allegations against Ms Bignall concerning her behaviour towards colleagues was completed in November 2021, without any meaningful input from Ms Bignall. A total of seventeen employees were interviewed as part of the investigation.

[54]The outcome of the investigation was that there was a case to answer on all counts and the matter was referred to Mr Rhodes, the Assistant Director of Operations for North West London to conduct a disciplinary hearing. Mr Rhodes did not know the staff at the Whipps Cross Ambulance Station.

[55]The recommendation of Mr Crafer was that the allegations fell under the Respondent’s Dignity At Work policy and were at the level of seriousness of gross misconduct.

[56]Having read the investigation report of Mr Crafer, Mr Rhodes decided that it was appropriate for the allegations to proceed to a disciplinary hearing.

[57]A disciplinary meeting was scheduled for 22 December 2021. Ms Bignall was informed of the decision to proceed to a disciplinary meeting by letter dated 8 December 2021 from Mr Peter Rhodes (Assistant Director of Operations). Ms Bignall was informed that if any of the five allegations were proven, that may amount to gross misconduct and therefore the termination of her employment was a possible outcome of the disciplinary hearing.

[58]The allegations against Ms Bignall were: “1. On 21st October 2020 you walked through the messroom at Whipps Cross and deliberately ignored JT as an act of exclusion in breach of the LAS’s dignity at work policy and the LAS’s values and behaviours. 2. Comments made to JB by you on 13th October 2020 were made in an attempt to establish JB’s sexual orientation for reason to subject him to homophobic bullying in breach of the LAS’s dignity at work policy and the LAS’s values and behaviours. 3. On 14th October 2020 you made inappropriate comments to JB that were disrespectful to staff and service users who suffer from a mental health disability, that is in breach of the LAS’s dignity at work policy and the LAS’s values and behaviours. 4. On 6th December 2020 you made disrespectful comments to one colleague about another colleague that were in breach of the LAS’s dignity at work policy and the LAS’s values and behaviours. 5. You have demonstrated a long pattern of behaviour in making disrespectful claims, comments and starting rumours about colleagues that are in breach of the LAS’s dignity at work policy and the LAS’s values and behaviours as they constitute bullying, harassment and homophobia.

[59]The names of the individuals identified in the allegations against Ms Bignall are not pertinent to the Tribunal’s decision. Therefore, the Tribunal has replaced the full name of the individuals above with their initials. However, the Tribunal notes that the individual identified in the first allegation was involved in the allegations against Ms Bignall of May 2019.

[60]The disciplinary hearing was initially scheduled for 15 December 2021. This was changed to 22nd December 2021 at 10am to suit Ms Bignall’s representative.

[61]On 17th December 2021 Ms Bignall requested to be accompanied by a Mr C Carroll who had been a trade union representative but was not at that time an accredited trade union representative or an employee of the respondent. After initially refusing Mr Carrol’s attendance, the respondent reconsidered and on 21st December 2021 informed Ms Bignall that Mr Carroll could attend as her representative.

[62]On 19th December 2021 Ms Bignall provided 169 pages of documents to be considered by the chair of the appeal. On the morning of 22nd j 2021, shortly before the start of the disciplinary hearing, Ms Bignall submitted a further 81 pages of documents consisting of the investigation pack with her annotations and comments in red and other documents.

[63]At 9.46am on 22 December 2021 Ms Bignall submitted a grievance to Mr Rhodes. The grievance alleged ‘prejudicial conduct’ by Mr Ben Evans, Mr Phil Crafer and Ms Hazel Meredith, a Human Resources manager. The conduct complained of related to the disciplinary investigations of November 2019 and December 2021 but gave no detail.

[64]Three of Ms Bignall’s colleagues were invited to attend the disciplinary hearing as witnesses for the respondent. One of those witnesses, CP, declined to attend and asked to revise his statement. He retracted his allegation against Ms Bignall on the basis that he felt pressured to give an example of ‘misconduct’ by Ms Bignall and that the example he had recalled was from a very long time ago and he now believed that he had misremembered the incident and Ms Bignall was not the person who made the prejudicial comments.

[65]Ms Bignall attended the disciplinary hearing with her representative Mr Carroll, with Mr Rhodes chairing.

[66]Mr Rhodes informed Ms Bignall that the respondent now had a new Resolution Framework which replaced the previous disciplinary and grievance policies. Mr Rhodes informed Ms Bignall that he would be hearing the disciplinary under the old policy but could not accept the grievance as it had to be raised under the new Resolution Framework policy. He said the fact that she had raised a grievance at this stage would be noted.

[67]The old policy says: “Where the grievance and disciplinary cases are related it is usually appropriate to deal with both issues concurrently at the disciplinary hearing and/or the appeal”.

[68]The new Resolution Framework says: “Where an employee raises a concern during a formal resolution process that is related to the case, it will usually be appropriate to deal with both issues concurrently at the formal Resolution meeting and/or appeal unless the content of the employee’s concern is so significant that the manager should consider suspending the process for a short period whilst the concern is dealt with.”

[69]Mr Rhodes was wrong when he told Ms Bignall that he could not accept her grievance. However, Mr Rhodes went on to inform Ms Bignall that he would in fact consider the detail of the grievance in so far as it was relevant to the case. As a result of Mr Rhodes refusing to formally accept the grievance Mr Carroll, on behalf of himself and Ms Bignall, indicated their intention not to continue with the hearing. Mr Rhodes clarified with Ms Bignall that she concurred with Mr Carroll’s stated position, which she did. Ms Bignall and Mr Carroll did not return to the disciplinary hearing after an adjournment. The disciplinary hearing continued in Ms Bignall’s absence.

[70]Having proceeded with the hearing in Ms Bignall’s absence, Mr Rhodes heard evidence from witnesses for the respondent, reviewed the submissions and documents produced by Ms Bignall – including her grievance – and concluded that the five allegations against Ms Bignall were upheld on the balance of probabilities. He concluded that the conduct alleged breached the respondent’s Dignity At Work Policy and the respondent’s values and behaviours and amounted to gross misconduct for bullying and harassment. In reaching the decision to terminate Ms Bignall’s employment, Mr Rhodes considered the lesser sanctions of a first or final written warning but decided that the impact of Ms Bignall’s conduct on the witnesses and the fact that there had been a previous investigation into Ms Bignall’s conduct towards her colleagues led him to conclude that dismissal was the appropriate sanction to protect colleagues and enable them to feel safe at work going forward.

[71]Ms Bignall’s employment was terminated with effect as of 22 December 2021, without notice or pay in lieu of notice. Any outstanding annual leave was to be paid to Ms Bignall in due course. The outcome was communicated to Ms Bignall in a letter dated 12 December 2021.

[72]In respect of Ms Bignall’s grievance, Mr Rhodes decided that none of the named managers had prejudiced the current investigation and that there had been no victimisation of Ms Bignall on the grounds of her issuing Employment Tribunal claims.

[73]Mr Rhodes confirmed that he was aware of the pre-existing final written warning but that he was not aware of its ‘nature and contents’.

[74]Ms Bignall was informed of her right to appeal against the decision by providing written grounds to Damian McGuinness, Director of People and Culture, within fourteen days of receipt of the decision letter. Full reasons for the decision were communicated via a letter dated 7 January 2022. Appeal against termination of employment

[75]On 29 December 2021 Ms Bignall appealed against her dismissal. Mr McGuinness accepted her appeal and asked her to particularise her grounds of appeal. Ms Bignall in her appeal complained that she had not at that point received full reasons for her dismissal. She also identified her grounds of appeal as: “1. The decision to dismiss is unfair. 2. The employer did not reasonably believe the employee was guilty of misconduct and/or gross misconduct. 3. The employer did not reasonably have grounds on which to base any such belief. 4. The employer did not conduct a reasonable investigation prior to the decision to dismiss. 5. The decision to dismiss was not a reasonable decision available to the employer in this matter. 6. The employer has not followed its own procedures in this matter. 7. The employer has dismissed the employee without reason(s) provided/given. 8. The decision to dismiss is discriminatory, and/or on-going act(s) of discrimination, in regard to the employee's relevant protected characteristics; (including race, sex, age, sexuality – as appropriate). 9. The investigation and/or conduct of the disciplinary hearing prior to dismissal is discriminatory, and/or on-going act(s) of discrimination, in regard to the employee's relevant protected characteristics; (including race, sex, age, sexuality - as appropriate). 10. The decision to dismiss is an act(s), and/or on-going act(s), of victimisation for the employee's previous/current protected acts of the employee; including current Employment Tribunal claims. 11. The investigation and/or the conduct of the disciplinary hearing prior to dismissal is an act(s), and/or on-going act(s), of victimisation for the employee's previous/current protected acts of the employee; including current Employment Tribunal claims. 12. The employer's decision to dismiss the employee and/or conduct of the disciplinary hearing and/or conduct of investigation prior to dismissal is in breach of the employer's relevant legal obligations and thereby subject to Public Interest Disclosure - as appropriate/relevant - by the employee (to be separately provided). 13. The employer's decision to dismiss the employer and/or conduct of the disciplinary hearing and/or conduct of investigation prior to dismissal is in breach of the employer's relevant legal obligation(s) in regard to Data Protection Act 2018 and General Data Protection Regulations 2018 (GDPR 2018).”

[76]In response to Mr McGuiness’s request that she particularise her appeal, Ms Bignall declined to give any more detail to her appeal at that time. Mr McGuinness then gave her a deadline by which to submit the details of her appeal so they could be considered in advance of the appeal hearing.

[77]There was a delay between the notification of appeal and the appeal hearing as the respondent was operating at ‘REAP level 4’ indicating the service was under severe pressure. Ms Bignall wrote to the respondent when the REAP level was reduced to 3 and as a result the respondent proceeded to list her appeal for hearing.

[78]The hearing was initially scheduled for 12 April 2022 and Ms Bignall was asked to produce the detail of her appeal by 18 March 2022. She asked for an extension of time to 24 March 2022 and then again to 28 March 2022 by which to provide further detail of her appeal. The date of hearing was also extended. Ms Bignall did not in fact provide any further details of her appeal other than to add a fourteenth ground of appeal as “[t]he relevant alleged conduct in the matter of LAS employees JT [a complainant and witness at the disciplinary hearing of 22/12/2021], Mr Evans, Mr Crafer, Ms Meredith, Mr Rhodes is alleged contrary to their relevant responsibilities in this matter and allegedly constitutes hostility and/or prejudice and/or relevant discriminatory conduct and/or relevant victimization of the appellant Ms Bignall.”

[79]On 7 April 2022 Ms Bignall submitted her third claim to the Employment Tribunal. This claim raised complaints of unfair dismissal, discrimination on the grounds of race, sex and sexual orientation, victimisation, unauthorised deductions from wages and a claim for notice pay.

[80]On 11 April 2022 Ms Bignall sent a letter to the CEO of the respondent, stating that she was making public interest disclosures concerning the substitution of policies and the conduct of disciplinary investigations and hearings and requesting the same be investigated.

[81]On 11 April 2022 Ms Bignall informed Mr McGuiness that she was not going to attend any hearing of her appeal or provide further documents. Ms Bignall objected to the appeal being heard under the new Resolution Framework and not under the old disciplinary procedure that the disciplinary hearing had been heard under. She did not explain what she objected to in the new procedure. Mr McGuiness acknowledged this email on 3 May 2022 and the appeal was considered and decided on 10 May 2022. Mr McGuinness upheld the decision to dismiss which was confirmed to Ms Bignall by email on 12 May 2022. Law Victimisation

Law

[82]Section 27 of the Equality Act 2010 –(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[83]The Tribunal was reminded that victimisation occurs where a claimant is subjected to a detriment "because" they have done (or might do) a protected act.

[84]We were referred to the case of Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

for defining ‘detriment’ as ‘treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment’. Detriment related to health and safety

[85]S 44(1) if the Employment Rights Act 1996 ‘ERA’ – ‘(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that – … (c) being an employee at a place where –(i) there was no such representative or safety committee, or

(ii) there was such a representative or safety committee, but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety’.

[86]The respondent referred the Tribunal to the unreported case of Miles v Driver and Vehicle Standards Agency

[2023] EAT 62

(28 April 2023, unreported) in support of their position that for there to be a representative or safety committee at a workplace, it was enough that the representative or committee be physically based elsewhere but ‘covering’ the relevant workplace.

[87]The respondent also argued that the ‘reason why’ test should be applicable to causation. Detriment related to public interest disclosure

[88]Section 47B Employment Rights Act 1996: “(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done –(a) by another worker of W's employer in the course of that other worker's employment, or

(b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer.”

[89]Being subjected to a detriment is being put at a disadvantage (Ministry of Defence v Jeremiah

[1979] IRLR 436

, CA). There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment and an unjustified sense of grievance cannot amount to a “detriment”: Jesudason v Alder Hey Childrens NHS Foundation Trust

[2020] IRLR 374

. A disadvantage can be dismissed as de minimis (Peake v Automotive Products Ltd

[1977] IRLR 365

, CA).

[90]Section 43A ERA tells us that a protected disclosure is a ‘qualifying’ disclosure that is made in accordance with the legislation. Section 43B tells us what amounts to a ‘qualifying’ disclosure and sections 43C to 43H tell us to whom the disclosure is made in order for the qualifying disclosure to be a protected disclosure.

[91]Section 43B Employment Rights Act 1996: “a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following –(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”

[92]To be a qualifying disclosure:a. There must be a disclosure of information.

b. The worker must believe that the disclosure is made in the public interest.

c. Such a belief must be reasonably held.

d. The worker must believe that the disclosure tends to show one of more of the matters listed in section 43B sub paras (a) to (f).

e. That belief must be reasonably held.

[93]The Tribunal was referred to caselaw that tells us what amounts to a disclosure of information - Cavendish Munro Professional Risk Management Ltd v Geduld

[2010] ICR 325

(not merely making an allegation or stating a position) and that there is no rigid distinction between an allegation and a disclosure of information - Kilraine v London Borough of Wandsworth

[2018] EWCA Civ. 1436

. We were also reminded that the test of reasonable belief involves both objective and subjective elements and applies to all elements of the test of whether the information disclosed tends to show a relevant failure, including whether the relevant legal obligation which the worker believed existed did actually exist (Babula v Waltham Forest College

[2007] ICR 1026

). The worker could be wrong, and the belief might still be reasonable (Darnton v University of Surrey [2203] ICR 615.

[94]The test of whether the detriment complained of was “on the ground that” the protected disclosure was made is whether the protected disclosure “materially influences”, in the sense of being more than a trivial influence, the employer’s treatment of the whistleblower: Fecitt v Manchester NHS Trust

[2012] IRLR 64

[95]The burden is on the worker to show that a protected disclosure was made and the burden is on the employer to show the grounds upon which any act or omission was done. Unfair Dismissal

[96]S. 94(1) of the Employment Rights Act 1996 (‘ERA’) - An employee has the right not to be unfairly dismissed by his employer.

[97]S. 98 of the ERA -(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it – (a) … (b) relates to the conduct of the employee, (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) - (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case

[98]In determining whether the dismissal was fair – i.e. fell within the ‘band of reasonable responses’, the parties referred the Tribunal to the cases of Iceland Frozen Foods Ltd v Jones

[1983] ICR 17

(EAT) and Sainsbury's Supermarkets Ltd v Hitt

[2003] IRLR 23

which remind the Tribunal not to fall into the ‘substitution mindset’ and to subject the question of whether a reasonable procedure has been adopted to the range of reasonable responses test. The Tribunal must “determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair” (Iceland Frozen Foods Ltd v Jones

[1983] ICR 17

(EAT) 24-25). The Tribunal was also reminded that the sanction of dismissal does not have to be the last resort for the decision to fall within the band of reasonable responses (Quadrant Catering Ltd v Smith

UKEAT/0362/10/RN

[99]We were also referred to the case of British Home Stores v Burchell

[1980] ICR 303

(EAT) which reminds us that when addressing the question of fairness in a conduct dismissal, for a dismissal to be fair the Tribunal must be satisfied that, at the time of dismissal, a) the employer had a genuine belief in the misconduct; b) the employer had reasonable grounds for that belief; and c) the employer carried out as much investigation as was reasonable in the circumstances.

[100]The Tribunal was also directed to caselaw that reminds the Tribunal to take account only of facts that were known to the dismissing officer(s) at the time (Orr v Milton Keynes Council

[2011] ICR 704

), to bear in mind that the level of investigation required is linked to the strength of the prima facie case against the employee (ILEA v Gravett

[1988] IRLR 497

(EAT)), that the question as to what is gross misconduct is a mixed question of law and fact and that gross misconduct justifying dismissal must amount to a repudiation of the contract of employment by the employee (Sandwell & West Birmingham Hospitals NHS Trust v Westwood

UKEAT/0032/09/LA

[101]The Tribunal was also referred to caselaw giving guidance as to how to approach the issue of whether a dismissal was procedurally fair. Conclusions Victimisation claim

Conclusions

[102]The Respondent accepted that the listed protected acts of: a) Initiating early conciliation through ACAS on 18 December 2020; b) Submitting her first claim form on 27 February 2021; c) Informing the Trust during the appeal process, in her written submissions, made on or about 7 March 2021, that she had issued proceedings, and d) Submitting the second claim form on 17 May 2021, were protected acts under section 27 of the Equality Act 2010.

[103]Ms Bignall’s claim, as recorded in the agreed list of issues, was that the respondent had(1) refused to overturn the final written warning and

(2) dismissed her, because she had done those protected acts.

[104]In her witness statement, Ms Bignall stated her belief that Mr Crafer’s letter of 28 April 2021 (the first invitation to an investigation meeting) constituted an act of victimisation, being a detriment as a result of Ms Bignall issuing her first Employment Tribunal claim. However, this claim was not included in the list of issues and there had been no attempt to amend the list of issues despite the parties being invited to identify any errors in the list within 14 days of receiving the case management order of 30 January 2023. Ms Bignall had been represented by Counsel at the preliminary hearing of 30 January 2023. At the outset of the liability hearing, Counsel for the claimant confirmed that the detriments relied on were those recorded in the list of issues.

[105]In cross-examination, Ms Bignall confirmed that she did not believe her appeal against the final written warning was dismissed because she had commenced ACAS Early Conciliation on 18 December 2020 and/or had submitted her Employment Tribunal claim of 27 February 2021. She stated that she believed Ms Cranmer had failed to overturn the final written warning because Ms Cranmer failed to adequately take into account Ms Bignall’s mitigation.

[106]Ms Bignall confirmed in cross-examination that she did not believe she had been dismissed because she had entered into ACAS Early Conciliation and/or submitted her claims to the Employment Tribunal. She confirmed that Mr Rhodes had got the dismissal decision wrong by following the wrong procedure. She confirmed more than once, her belief that the decision to dismiss was not related to these protected acts (entering into ACAS Early Conciliation and submitting her claims to the Employment Tribunal).

[107]There was no reliable evidence put before us that Ms Cranmer’s failure to overturn the final written warning or Ms Bignall’s subsequent dismissal were because Ms Bignall had commenced early conciliation or submitted Employment Tribunal claims alleging unlawful discrimination on the grounds of age, race, sex and/or sexual orientation.

[108]In the absence of facts from which the tribunal could decide without any other explanation from the respondent, that Ms Bignall had been discriminated against, the burden of proof remained with Ms Bignall and the tribunal heard no reliable evidence that the acts complained of by Ms Bignall and listed in the list of issues were related to her protected acts.

[109]We find that Ms Bignall’s claims of victimisation do not succeed. Detriment related to public interest disclosure

[110]Although Ms Bignall’s pleaded claim as recorded in the agreed list of issues referred to multiple disclosures made in response to call outs from the Ambulance Control, Ms Bignall gave oral evidence of just one such call-out. On that occasion she disclosed to Ambulance Control the fact that as the FFP3 mask did not fit, she did not have the required PPE to attend a confirmed Covid patient. This was a disclosure of information that was in the public interest of preventing further transmission of Covid-19. The disclosed information tended to show that the health and safety of Ms Bignall and anyone else that she later came into contact with, was likely to be endangered by attending a confirmed Covid patient without the correct PPE.

[111]However, on the occasion of making that disclosure, Ms Bignall was stood down from the call, thereby avoiding any detriment to herself. Ms Bignall did not give any other instances of detriment occasioned by her disclosure. She accepted in cross-examination that it was not feasible that Ambulance Control, the employees of which she did not know and did not know her, would subject her to a detriment by sending her to other Covid confirmed patients on the grounds that she had made a protected disclosure to them about the FFP3 mask not fitting her.

[112]We did not hear evidence that Ms Bignall was at any other time sent to attend a known Covid-positive patient.

[113]Although Ms Bignall was called out to patients that subsequently transpired to have Covid, she was able to follow the guidance available to all ambulance staff who did not fit the FFP3 mask. In cross-examination Ms Bignall confirmed that the pleaded detriments that she had claimed she was subjected to, were not to do with her raising a complaint of not having an appropriately-fitting FFP3 mask, they were because she was dealing with patients with Covid without having the mask.

[114]The detriments as pleaded were:(a) she was exposed to Covid from patients who were ill with the virus; or

(b) she ran the risk of infecting patients or others, for which she would have responsibility.

[115]We do not find a link between Ms Bignall’s disclosure (made to Ambulance Control, that the FFP3 mask did not fit properly and that she should not be attending patients with Covid) and her attendance at call outs to patients who may later transpire to have Covid.

[116]Ms Bignall was not placed at a disadvantage by an act of her employer on the ground that she had made a protected disclosure – all ambulance staff ran risks of exposure to Covid due to the nature of the role and the worldwide pandemic and the respondent took active steps to avoid Ms Bignall coming into contact with patients confirmed to have Covid. The detriments Ms Bignall claims were not related to Ms Bignall’s disclosure to Ambulance Control. We were persuaded that Ms Bignall’s disclosure to Ambulance Control had no influence over and no relation to the later decisions on her deployment to attend patients.

[117]Ms Bignall gave oral evidence that her report to Ambulance Control was effectively acted upon, in that she was stood-down from a Covid-confirmed call out and we find that Ms Bignall’s inability to fit the FFP3 mask was accommodated by the respondent’s policy of separating the driver from the attending clinician and potential Covid-positive patient and thereby providing for the physical protection of the driver.

[118]We find that Ms Bignall’s claims of detriment related to public interest disclosure do not succeed. Detriment related to health and safety

[119]Ms Bignall’s initial claim was under s 44(1)(c) Employment Rights Act 1996 – i.e. that she was an employee at a place where there was no representative or safety committee or that there was a representative or a safety committee and it was not reasonably practicable to raise the matter by those means. And that as a result of raising circumstances connected with work which she reasonably believed were harmful or potentially harmful to health or safety, she was subjected to the detriments of(i) being exposed to Covid from patients who were ill with the virus; or

(ii) running the risk of infecting patients or others, for which she would have responsibility.

[120]No evidence was offered as to what were the circumstances connected with work which she reasonably believed were harmful or potentially harmful to health or safety or how or with whom those circumstances were raised.

[121]In her witness statement, Ms Bignall made reference to her taking ‘appropriate steps’ to protect persons from Covid. This reflected the wording of a claim under section 44(1A)(b) of the Employment Rights Act 1996. She described the appropriate steps as locating herself in the driver’s cab with the partition door closed and maintaining social distance. She identified the detriment as her being subjected to a final written warning on 29 September 2020. This detriment was different from those stated in the agreed list of issues. At the outset of the hearing, Ms Bignall’s representative confirmed that the claimant did not intend to pursue detriments other than those listed in the list of issues.

[122]In submissions the claimant’s representative argued her claim under s.44(1)(a) and (b). i.e. that she was subject to the pleaded detriments because she had been designated by the respondent to carry out health and safety activities, or she was a worker representative on matters of health and safety or a member of a health and safety committee. No evidence was presented that Ms Bignall was designated by the respondent to carry out health and safety activities, was a worker representative on matters of health and safety or was a member of a health and safety committee.

[123]There was no application to amend the claim from that reflected in the agreed list of issues. We noted that the claim forms referred to health and safety claims under section 44 of the Employment Rights Act 1996 without further detail. The professionally represented parties had agreed the details of the claims which were recorded in the list of issues at the preliminary hearing of 30 January 2023. The claimant had the opportunity to disagree with or clarify the list of issues but had not taken that opportunity. The respondent had prepared its defence on the basis of the claims as stated in the agreed list of issues. There was no formal application to amend the claim and therefore we did not consider a claim under section 44(1)(a) and (b) or 44(1A) further.

[124]The Respondent stated in its Grounds of Response and in the witness evidence of Pauline Cranmer that Whipps Cross Ambulance Station had its own Health and Safety representative as well as information available on a Health and Safety noticeboard and on the intranet and there was a Health and Safety Committee to deal with health and safety issues.

[125]In her witness statement, Ms Bignall acknowledged that there may have been a Health and Safety Committee at work but she had no dealings with them during her employment and given the circumstances of responding to emergency calls from patients, it was not reasonably practicable to raise her health and safety concerns with the Health and Safety Committee.

[126]Looking at Ms Bignall’s original claim under s.44(1)(c) we find that there was both a Health and Safety Committee and a Workplace Health and Safety representative at the Whipps Cross Ambulance Station. The only evidence put forward by Ms Bignall as to why it was not reasonably practicable for her to raise her concerns to her local health and safety representative or to the health and safety committee was that to do so was not compatible with the nature of her job in responding to emergency patient call-outs. We do not accept this. There were a number of ways Ms Bignall could have raised issues with the individuals tasked with health and safety matters both when she was in the Ambulance Station and when she was on the road, through the iPads carried by the ambulance crew.

[127]Although Ms Bignall said that she had not had any contact with the health and safety committee and it was not reasonably practicable to do, she had access to her Trade Union representative during Covid and made use of the union’s services during the disciplinary process of September 2020 and therefore she could have brought any concerns to the trade union health and safety representative who could have raised those concerns with the respondent.

[128]The Tribunal finds that it was reasonably practicable for Ms Bignall to raise health and safety concerns through the available means of a local representative and a Safety Committee. The claimant has failed to identify the circumstances connected to work or how any such circumstances were brought to the respondent’s attention. Nor do we find that the claimant experienced detriments related to raising any such concerns. The lack of evidence put forward by the claimant as to the ‘reasonable means’ or ‘circumstances connected with work’ or how such matters were brought to the respondent’s attention leads us to find that Ms Bignall’s claim under s.44(1)(c) does not succeed. Unfair Dismissal and Wrongful Dismissal

[129]We find that the Respondent’s stated grounds of dismissal, namely misconduct by Ms Bignall, in particular in relation to allegations of bullying, was the reason for Ms Bignall’s dismissal. The weight of the witness evidence from multiple witnesses in support of the initial complaint against Ms Bignall supported the respondent’s position that it had genuine belief that Ms Bignall’s conduct was unacceptable, and in breach of their policies and in particular the Dignity at Work Policy. In cross-examination the claimant conceded that if the case against her was true, it would be sufficient for a sanction of gross misconduct to be imposed.

[130]The tribunal reviewed and considered the weight of evidence, including the number of witnesses interviewed (both supportive and unsupportive of the allegations against the claimant), the investigation notes, disciplinary findings, appeal documentation and the respondent’s policies and procedures, and we concluded that, on balance, it was a thorough investigation and the respondent had genuine belief that gross misconduct had taken place, and that belief was reasonably held.

[131]The Tribunal noted some flaws within the process. It was not ideal that the procedure used was changed between the disciplinary and the appeal. Mr Rhodes also created confusion as to whether or not Ms Bignall’s grievance could be heard under either the old or new system as part of the disciplinary process and it may have been unclear to Ms Bignall as to whether or not he was taking the points raised in the grievance into account when conducting the disciplinary. Mr Rhodes did confirm during the disciplinary meeting, in the outcome letter and in evidence to the Tribunal that he took the issues raised in the grievance into account when the claimant challenged the disciplinary process. We accept that at this stage of the disciplinary process Ms Bignall, due to the confusion, was not reassured that the complaints raised in her grievance were going to be considered.

[132]We note that there was a significant delay between the allegations being made and Ms Bignall being approached for her response to the allegations, and an even longer delay in informing Ms Bignall just what the allegations were against her. This was less than ideal. However, at every stage, the delay was added to by Ms Bignall’s decision not to fully engage with, or participate in, the investigation process.

[133]The respondent accepts that it had a one-sided view because of Ms Bignall’s non-engagement with the process and that it would have been preferable to have heard Ms Bignall’s side of the story, but in a situation where Ms Bignall refused to sufficiently engage it was reasonable and fair for the respondent to continue with the process in dealing with serious complaints raised by a number of Ms Bignall’s colleagues.

[134]We find that given the seriousness of the allegations against Ms Bignall, the weight of evidence in support of those allegations, and the lack of evidence from Ms Bignall to counter those allegations, it was within the range of reasonable responses for the respondent to dismiss for gross misconduct.

[135]We do not make a finding whether Ms Bignall was guilty of the allegations made against her or not. We note that there were difficult relationships at that ambulance station. We do not substitute what the Tribunal would have done in the respondent’s place. We take a holistic view of the fairness of the procedure, and we find that, despite some flaws in the process, the procedure was overall reasonable and fair, and the respondent’s decision was within the band of reasonable responses open to it.

[136]We therefore find that Ms Bignall’s claim of unfair dismissal is not well-founded and it does not succeed. The claim for notice pay therefore falls away. Unauthorised deduction from wages

[137]The claimant put no evidence forward in support of this claim in her witness statement and her representative made no reference to the claim in his submissions. In cross-examination it was put to Ms Bignall by the respondent that the respondent paid in arrears and that she would have been paid for her first month at the end of the month. Ms Bignall stated that she believed she had worked a month in lieu when she first joined the respondent and she had expected to receive payment for that month when she left the service. In light of the lack of evidence we find that the claimant does not succeed in this claim. Tribunal Judge R Overton acting as an