Ms Adedeji v Macintyre Academies: 3302498/2023 and Others
EMPLOYMENT TRIBUNALS
Case No 3302498/2023, 3305599/2023, 3306029/2023
Between
Ms AdedejiClaimantMacintyre Academies Heard: In person, public preliminary hearingRespondent
Before
Employment Judge AdkinIn person for claimantMr S Whysall (instructed by Solicitor) for respondentDate 16 April 2025
JUDGMENT
(1) The Respondent’s applications for a strike out or a deposit order in relation to the complaint of automatic unfair dismissal because of a protected disclosure pursuant to section 103A of the Employment Rights Act 1996 are refused.(2) All other complaints brought under claim numbers 3302498/2023, 3305599/2023 and 3306029/2023 are struck out. - 1 -
REASONS
[1]There are three matters that I have had to decide in today’s hearing: 1.1. First is the Respondent’s application to strike out the claim. The basis for the strike out was originally set out in the letter of application dated 29 July 2024. The Respondent says that it is not possible to have a fair hearing for the proceedings given that the Claimant has on more than one occasion failed to provide details of the claim in compliance with Employment Judge Glennie’s orders. 1.2. Second, alternatively the Respondent asks that there should be a deposit order made in order for the claims to proceed on the basis that there are little reasonable prospect of these claims suceeding. 1.3. Finally, the Claimant has applied to bar the Respondent relying on certain documents and that is set out in her email dated 2 October 2024. She has characterised that as a strike out but it is probably better characterised as a case management order which prevents the Respondent relying on certain documents. Hearing Recording
Hearing
[2]As a preliminary matter Ms Adedeji has asked me if she can record this hearing.[3]She has explained her concern that historically documents were not copied to her prior to previous hearings as they should have been under Rule 92 of the Employment Tribunal Rules. She feels that that matter was raised at previous hearings but has somehow not been dealt with and for that reason has asked for this hearing to be recorded.[4]That application is opposed by the Respondent. I have explained to Ms Adedeji that if she wants to ask for written reasons for my decision at this hearing she can do so (in fact she did). I recorded my oral judgment and reasons in this hearing although not the hearing generally on my dictaphone, in order to enable for those written reasons to be provided.[5]I am hearing this hearing in a room which does not have any recording facility. It seems to me that the general rule which is that recordings should not be made and that that is a contempt of court for parties to record applies. It does not seem to me that recording this hearing is going to address the concern that has been raised by Ms Adedeji. Having said that if she wants to make it clear that there are documents which she has not received as part of her response to the Respondent’s application she can certainly do that in this hearing. I am very happy to hear if she explains that she has not received certain documents - 2 - and obviously if Mr Whysall says that she has received them then he may want to reply briefly to state if those documents have been received.[6]In summary I am not going to allow a recording but I am very happy to have Ms Adedeji explain if there are documents she has not received which have a relevance to this application. Accessing documents[7]The Claimant is visually impaired and has to use a tablet to magnify documents electronically. During the course of this hearing I have made sure that we have had regular breaks, offering the Claimant a break after 20 minutes of reading and allowing her to stay in the Tribunal room while there was a reading break to avoid her needing to clear all of her substantial belongings and personal effects out of the room to find the waiting room. Background Employment
Background
[8]The Claimant commenced employment on 16 April 2018 as a Residential Support Worker, working full time.[9]The Claimant submitted a grievance on 16 November 2021 and an email described as the whistleblowing email on 29 January 2022.[10]The Claimant commenced sick leave on 28 March 2022. She did not return to work from this date onward.[11]The Respondent no longer paid sick leave from a date in November 2022.[12]The Claimant resigned on 7 March 2023. That resignation is the basis for her claim of constructive unfair dismissal which she says is an automatically unfair dismissal. First claim[13]On 13 March 2023 the Claimant presented the first of three claims that one was 3302498/2023 presented in the Watford Employment Tribunal. That claim included complaints of unfair dismissal, disability and an application for interim relief. Second claim[14]The Claimant presented the second claim which is 3305599/2023 on 22 May 2023. This claim also brought a complaint of unfair dismissal but also discrimination claims because of age, race, disability, sex and a claim for other payments unspecified.[15]In the narrative in that second claim on box 8.2 the Claimant set out automatic unfair constructive dismissal relating to a protected interest disclosure and also the following headings: discrimination arising from disability under s.15 of the - 3 - Equality Act, a failure to comply with duty under s.20, discrimination under s.26, breach of s.112, s.19, then a reference to repudiatory breach of contract, monies owed to the Claimant from suspension pay; there are various other matters set out there: employers duty of care, misrepresentation, race discrimination, racism and racial profiling, age and sex discrimination.[16]She states that on 29 January 2022 she notified the Respondent of a “whistle blow” leading to an investigation being commissioned by Kevin Roger in February 2022 with an outcome on 1 April 2022. She states that in April 2022 she escalated the protected disclosure to prescribed person/authorities and regulators and states that on 9 May 2022 in retaliation Gemma Deehan of the Respondent immediately started formal investigation proceedings against her stating that 22 emails found in her personal mail account from her personal device.[17]She claims the maximum compensatory award for an unfair dismissal and an award in the Vento band of £45,600 i.e. an award in the highest band for injury to feeling. Third claim[18]The third claim 3306029/2023 was received by the Employment Tribunal on 24 May 2023.[19]In that claim form there is significant amount of narrative added in boxes 8.1 and 8.2. There are a couple of references to 32 legal issues and then various lists some of which seem to be the headings of various legal claims but which are not easily understood as such. It is quite difficult to make sense of what is said on these pages although there seems to be a suggestion that evidence was being covered up and in relation to this Gill Craik who dealt with the appeal outcome appears to be the subject of particular concern from the Claimants perspective.[20]In the box 15 of the claim form (ET1) additional information the Claimant states about two thirds of the way down the page “last straw” in respect of which she stated: On 20 February 2023 I saw the WhatsApp platform called Endeavour House Team that had been in existence since 2017 and it was so litigious I informed the owner of the device and exemployee that this must be reported. She says on 2 February 2023 I informed Lado and OCC.[21]“Lado” is an acronym for Local Authority Designated Officer. I assume that OCC is either Oxford City Council or alternatively Oxfordshire County Council, based on a workplace address in Headington Oxfordshire OX3. Ground of response[22]The Respondent states that the Claimant was employed as a Residential Support Worker at the Endeavour Academy from 16 April 2018 and that her employment preceded without material incident until 2021. - 4 -[23]The Claimant’s second grievance was apparently submitted on 4 April 2022, there was a two day grievance hearing on 18 and 25 July and the Claimant was issued with an outcome to her grievance on 4 August 2022.[24]The Claimant appealed that outcome and an appeal hearing took place on 22 September, 29 November, 7 and 9 December 2022 with the outcome of that appeal issued to her on 12 January 2023.[25]The Claimant’s resignation was communicated with immediate effect on 7 March 2023.[26]The Respondent highlights that the Claimant had 423 days of sickness absence during her employment and remained absent signed off sick from 28 March 2022 until 7 March 2023.[27]It is explained that no action was taken in response to the Claimant “whistle blow” report in emails dated 29 January 2022 and 4 February 2022 even though there were 22 emails on her personal iPad which contained personal data of service users of the Respondent. The fact that the Respondent was not taking any action was confirmed to her on 15 December 2022 and which she told that there would be no disciplinary investigation into the potential data breach.[28]As to the claim of unfair dismissal the Respondent denies that there was a breach of the express or implied terms of the Claimant’s contract of employment and denied that if there was any such breach that it was sufficiently serious to constitute a repudiatory breach.[29]The Respondent does not admit that communications made on 29 January 2022 and 22 February 2022 amount to qualifying protected disclosures (i.e. whistleblowing) within the meaning of s.43B of the Employment Rights Act 1996.[30]The claim of failure to make reasonable adjustments is denied by reference to time points although not pleaded to substantively. Application for interim relief[31]On 7 December 2023 Employment Judge Hodgson heard a hearing in relation to an application for interim relief under section 128 of the Employment Rights Act 1996. He dismissed that application. First attempt to clarify the claim[32]There was a case management hearing (preliminary hearing) held on 3 April 2024 by Employment Judge Glennie at which the Claimant appeared in person and the Respondent was represented by Mr S Whysall, solicitor.[33]EJ Glennie listed an eight day hearing commencing on 22 January 2025. All claims were listed to be heard together.[34]The Claimant was ordered on that day to provide various details of her claim. The deadline was the 3 May 2024. - 5 -[35]By that date the Claimant needed to set out a numbered list in date order of each of the complaints to be determined by the Tribunal showing: 35.1. the date or if not known the approximate date of the event 35.2. what happened 35.3. who is involved 35.4. what type of claim is made about this event (e.g. a complaint under the equality act such as direct discrimination, harassment, etc in which case the protected characteristic(s) involved should be identified; constructive dismissal protected disclosure detriment)[36]Also by 3 May 2024 the Claimant was ordered to make any application to amend the claim.[37]There were then further directions for the Respondent to respond and a potential further hearing. Employment Judge Glennie said that he had not made an order about a list of issues which may or may not be needed depending on the content of the Claimants document clarifying the complaints. He reserved the next hearing to himself. Non-compliance with first order[38]On 3 May 2024 at 21:21 shortly before the deadline the Claimant provided a document in response to the order of Employment Judge Glennie. She set out in that email in paragraphs 3.1 to 3.4 of his order made at the hearing on 3 April 2024, i.e. precisely the part of the order identifying what she needed to provide. Unfortunately she did not then follow that part of the order.[39]She set out a series of allegations about fraudulent documents which she says that the Respondent had produced, which appears at page 10 of the bundle that I have received.[40]This goes on for a further ten pages making reference to various statutory provisions including the Employment Rights Act and the Companies Act 2006 model articles of the Respondent and other phrases like “cruel and unusual punishment” which are legal sounding but are not relevant to a complaint brought in the Employment Tribunal under UK employment law.[41]There are some references to things or provisions which full within the Employment Tribunal jurisdictions such as disability, discrimination and specifically discrimination arising from disability. It is difficult to understand these however as cogent allegations of fact that would amount to a complaint that the Employment Tribunal can deal with.[42]There are also other matters that certainly fall outside of the jurisdiction of the Employment Tribunal such as matters relating data subject access requests and committing perjury and so on. - 6 -[43]There is a second email also sent on 3 May, this one sent at 21:34. This begins at page 21 in the bundle. In that document what is said to be the reason for an amendment of the claim, in it the Claimant cites race discrimination, disability discrimination, age discrimination, different treatment, harassment, injury to feelings, there are a series of acronyms which are unexplained and other legal phrases like “conflict of interest”. There is case law set out on injury to feelings and also case law which relates to constructive unfair dismissal, also the Misrepresentation Act 1967 and then various other statutory provisions including the Mental Capacity Ac, Data Protection Act, Care Act 2014, the Careers (equal opportunity) Act 2004 the Health and Social Care Act 2012. Again there is an absence of a coherent claim.[44]That document is seven pages in length. Preliminary hearing on 21 June 2024[45]On 21 June 2024 Employment Judge Glennie held another preliminary hearing at which he refused an application to add three named Respondents and refused an application to amend and various complaints.[46]Employment Judge Glennie did not regard the emails sent on 3 May 2024 as having complied with his earlier order and so he restated the terms of his earlier order, extending the time for compliance to 19 July 2024. The numbering of the order was different but the same particulars he requested were restated in this order. He stated this “I made order (for) because I considered that the document the Claimant had produced in response to the earlier order for clarification of her claim did not in fact comply with that order. I emphasised that: It is essential that the information be presented in the way set out in the order. This is done in order to ensure that the Tribunal can understand the Claimants case and can be clear about the issues that it has to decide. This is not a request for this to be done: it is an order that it shall be done. Note (2) at the foot of this document states that the possible consequences of not complying with the Tribunals orders. The Note 2 reads as follows: under Rule 6 if this order is not complied with, the Tribunal may take such action as it considers just which may include(a) waiving or varying the requirement;(b) striking out the claim or the response, in whole or in part, in accordance with Rule 37;(c) baring or restricting a parties participation in the proceedings; and/or(d) awarding costs in accordance with Rules 74/84.” - 7 - Second attempt at compliance within deadline[47]On 19 July 2024, again just before the expiry of a deadline the Claimant started to send a sequence of emails.[48]At 22:58 the Claimant provided a further email, this was 12 pages long and headed chronology. This document contains a series of dates and statements for example, “MAY–AUGUST 2018 RISK ASSESSMENT CARRIED OUT BY CORAL ROMAIN AND JAN BONNER” and also “MARCH-APRIL 2019 RISK ASSESSMENT CARRIED OUT BY ADAM LAURENCE”. Under this heading the Claimant makes various statements about discovery being critical for disclosure of all personal data and then lists various “offences” including direct discrimination, disability discrimination, ageism, racism and also victimisation, automatic unfair constructive dismissal. This goes on for page after page.[49]I tried by using this document and listening to the Claimant’s lengthy submissions during the course of the three-hour hearing in front of me to try to understand these factual allegations. This particular email relates to events in 2018.[50]I could not identify allegations that would amount to a complaint that the Employment Tribunal could hear. Again, in common with the documents provided by the Claimant earlier the document uses legal terminology which is a mixture of terminology relating to employment law and other areas of law. She did not set out meaningful facts in the format specified by Employment Judge Glennie. The Claimant also in this document requested that the ET3 grounds of resistance should be struck out.[51]A second email this time sent at 23:35 on 19 July 2024 also set out a chronology dating back to April 2018 which talks about a hostile and unfair treatment and a toxic work culture.[52]A further email was sent at 23:49 which has what is described as a chronology for 2019 there is legal terminology and references to toxic management culture and the like, data protection, GDPR compliant again it is difficult for me to make sense of this as cogent factual allegations. This does not amount to compliance with Employment Judge Glennie’s order.[53]A further email was sent at 23:49 which is described as the part 5 chronology this seems to refer to events in 2022. There are various allegations contained within it such as being accused and framed for gross misconduct but again this does not comply with the order of Employment Judge Glennie.[54]It contains an application to “strike out” a fake risk assessment and the fake 37 page contract which is an application that the Claimant pursued at the hearing before me. This document goes on for 28 pages and again contains a mixture of statements and legal terminology. - 8 - Further emails sent after 19.7.24 deadline[55]The Claimant continued to send emails after the deadline set out in Employment Judge Glennie’s second Case Management Order.[56]Part 6 of the chronology was sent in an email on 20 July at 00:13 this relates to events in 2023. This document goes on for 14 pages. Again I consider it does not comply with Employment Judge Glennie’s order either in content or compliance with the deadline.[57]The fourth part of the chronology was sent on 20 July 2024 at 00:21. That is a 19 page document in a similar format which seems to make various allegations about someone whom I assume is a service user. This goes on for 19 pages. Again there are various legal terms used but it does not comply with Employment Judge Glennie’s order. Again it is difficult to understand this as setting out clear and cogent complaint which the Tribunal could hear. Strike out application[58]On 29 July 2024 the Respondent made a strike out application. In short the Respondent submits that the case should be struck out because the Claimant has not complied with the order and it is not possible to have a fair hearing of the proceedings.[59]In the alternative they apply for a deposit order of £1,000 to continue with the proceedings.[60]The Claimant sent an email in response on 29 July 2024.[61]The Respondent on 2 October sent an email renewing their application for a strike out. The Claimant responded on 3 October 2024. This is a series of emails sent on 3 October which appear in the bundle from page 127-164. These emails contained in this part of the bundle a mixture of allegations which are difficult to understand and legal phrases and what looked like legal submissions. This does not amount to compliance albeit belatedly with Employment Judge Glennie’s order. Submissions Respondent’s submissions[62]I have received submissions from the Respondents representative by reference to the case of T Smith v Tesco [2023] EAT 11, decision of HHJ Taylor. In that case HHJ Taylor upheld the decision of a Tribunal that the Claimant had acted in a manner that was scandalous, unreasonable or vexatious concluded that a fair trial was no longer possible and decided that it was proportionate to strike out the entire claim. In that case a fair trial was not possible because the - 9 - Claimant refused to cooperate with the Respondent and the Employment Tribunal. That decision also referred to the decision of HHJ Taylor in the case of Cox v Adecco Group UK and Ireland and others [2021] ICR 1307, in which guidance was given that it was important to try to understand the claim brought by a litigant in person before considering striking it out.[63]Mr Whysall for the Respondent submits that the Claimant has been given two opportunities to comply with the Tribunal order and has failed to do so and furthermore that no fair hearing is possible.[64]In the alternative he submits that there is little reasonable prospect of success in this claim.[65]I asked him during the course of his submissions whether and to what extent the Respondent had already prepared to deal with the claim. He accepted that the Respondent had provided witness statements for three witnesses dealing with the claim of constructive unfair dismissal on the basis of what they understood of the claim but it had been very difficult to do this. I asked him as to whether it might be possible to have a less Draconian option or only strike out part of the claim. His response was that the Claimant had still not identified the breach said to amount to constructive unfair dismissal. In his submission even the allegedly simple constructive unfair dismissal element of the claim was still unclear. Claimant’s submissions[66]The Claimant complained that the Respondent had failed to comply with various orders. She made submissions at some length about the Respondent having forged documents which she invited me to strike out.[67]I identified during the course of the Claimant’s submissions that she had produced a witness statement for the application for interim relief, which was refused by Employment Judge Hodgson. I arranged for a copy of that document to be provided to me. That is a 14 page document. It starts with a chronology of events from January 2018. It describes what she says was a protected disclosure, she describes this as a “whistle blow”. The second page of that witness statement at paragraph 8 refers to an alleged breach of data in relation to children.[68]She sets out a rebuttal in this document of the numbered paragraphs in the grounds of resistance. As to what is said to be the repudiatory breach of contract at paragraph 39 the Claimant states that there are monies owed from her suspension pay which she states were a repudiatory breach of contract. Much of the rest of this document is difficult to understand as coherent allegations which a Tribunal could determine. - 10 - LAW Strike out
LAW
[69]The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1 provide as follows: Striking out 37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success;(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;(c) for non-compliance with any of these Rules or with an order of the Tribunal; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).[70]In the Court of Appeal, Sedley LJ provided guidance on strike out in case of non-compliance in the case of Blockbuster Entertainment Ltd v James [2006] IRLR 630, CA. There are essentially two points; it is noted that strike out is a Draconian sanction and in order for there to be a strike out(i) there needs to be either a deliberate and persistent disregard of required procedural steps or(ii) no fair trial is possible.[71]The Presidential Guidance on General Case Management 2018 at guidance note 8, which deals with Striking Out under rule 37. Striking out under Rule 37 8. Under rule 37 the Tribunal may strike out all or part of a claim or response on a number of grounds at any stage of the proceedings, either on its own initiative, or on the application of a party. These include that it is scandalous or vexatious or has no reasonable prospect of success, or the manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious. - 11 - 9. Non-compliance with the rules or orders of the Tribunal is also a ground for striking out, as is the fact that the claim or response is not being actively pursued. … 11. Before a strike out on any of these grounds a party will be given a reasonable opportunity to make representations in writing or request a hearing. The Tribunal does not use these powers lightly. It will often hold a preliminary hearing before taking this action. 12. In exercising these powers the Tribunal follows the overriding objective in seeking to deal with cases justly and expeditiously and in proportion to the matters in dispute. Deposit Orders[72]Rule 39 of the Rules provides that a party may be ordered to pay a deposit as a condition of continuing with a specific allegation or argument where there is little reasonable prospect of success:[73]The Employment Appeal Tribunal ("EAT") provided a summary of the principles applicable to the Tribunal's power in this regard in Arthur v Hertfordshire Partnership University NHS Foundation Trust UKEAT/0121/19/LA per HHJ Eady QC at paragraphs 22 to 24. By way of summary: 73.1. The test for making a deposit order is distinct from the no reasonable prospect of success test which it is necessary to establish prior to the striking out of a claim. 73.2. The distinction is highlighted by the purpose of a deposit order, which is to identify at an early stage those claims with little reasonable prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of an adverse Costs Order being made. 73.3. When determining whether to make a deposit order the Tribunal is not restricted to considering purely legal questions. 73.4. Rather a Tribunal is entitled to have regard to the likelihood of a party being able to establish the facts essential to its case. The Tribunal, in doing so, is entitled to reach a provisional view as to the credibility of the assertions being put forward by a party. 73.5. The purpose of a deposit order is not, however, to make it difficult to access justice or obtain a striking out of a claim by the back door. CONCLUSIONS - 12 - Strike out
CONCLUSIONS
[74]I am satisfied that the Claimant has been given two opportunities to comply with Employment Judge Glennie’s order i.e. to set out in very simple terms the date, what happened, who was involved and what type of claim is made about each event. She has made submissions after the second deadline.[75]None of the various documents submitted by the Claimant since her three claim forms has lead to any led to any degree of coherence in the claims, particularly in relations to the complaints of discrimination. I largely accept the Respondent’s submission that the documents that have been produced do not lead the Tribunal to a situation where there is a coherent claim that the Respondent can respond to and that a Tribunal could make findings on. As to the complaint brought under section 103A I have dealt with that separately below.[76]I have considered whether it is possible that the Claimant has been unable to comply with Employment Judge Glennie’s order. I recognise that boiling down a set of events in a workplace context into short headlines and legal labels is something that judges and lawyers are experienced at doing but that litigants in person sometimes struggle with. It is frequently my experience that litigants in person just want to tell the story, and struggle with concise summaries which fit neatly into a legal analysis.[77]The Claimant was intelligent and articulate in the hearing before me. She did not state that she could not understand Employment Judge Glennie’s order. In my assessment that order it is written in admirably clear language. The consequences of non-compliance are also set out.[78]The Claimant has twice (three times if you include more recent submissions) chosen to put down on paper a mishmash of events not in a coherent sequence and a used large amount of legal terminology without any regard to the clear direction that she was given by Employment Judge Glennie.[79]As to whether the case of Smith v Tesco provides assistance I note in that case that case Employment Judge Flood had drawn up a list of issues and a table of the facts that the Claimant relied upon and in that case the Claimant had rather than cooperating to finalising the issues based on the structure provided by the judge instead sought to add a plethora of further allegations.[80]There is some similarity between that case and Ms Adedeji’s, but the cases are not precisely similar. I note however that the Tesco case was decided under rule 37(1)(b) – unreasonable conduct, whereas probably the current situation might fit more appropriately under rule 37(1)(c) i.e. non-compliance. It seems to me that that follows more appropriately from Employment Judge Glennie’s Order, and the Note attached to it.[81]The distinction may not be hugely important. I conclude that the Claimant has been given clear instructions by a Employment Judge but twice unreasonably failed to follow the instruction given and that this is non-compliance of an order of the Tribunal. In other words both rule 37(1)(b) and (c) are engaged. - 13 - Conclusion on strike out of discrimination claims[82]I recognise that strike out is a Draconian sanction, to be exercised sparingly by Tribunals and only if it is proportionate.[83]Is a fair hearing possible? I find it is no longer possible to have a fair hearing in respect of any of the claims of discrimination, specifically age discrimination, race discrimination, disability discrimination and sex discrimination. I have not been able, despite reading voluminous documentation and listing to the Claimant in a three-hour hearing to make sense of these various allegations of discrimination.[84]In inferthat Employment Judge Glennie had the same difficulty at two previous hearings. I do not find it would be proportionate or appropriate to give the Claimant yet another attempt to comply with the order. There is a trial listed in January. It is unfair to the Respondent to allow further delay, which will prejudice it both through additional cost but also the ability of the Respondent and its witnesses to deal with events in a timely manner before memories have faded further. In any event I do not consider it likely that giving the Claimant another attempt would be likely to lead to a coherent claim. If I could obviously see what the discrimination complaints were I might try to distil them, but I have been unable to do this.[85]As to proportionality, I find that it would be disproportionate to strike out all claims, in circumstances where I consider that the claim forms contain enough detail to identify a complaint under section 103A. I have concluded therefore that the proportionate approach is to strike out all of the discrimination claims, which are still incoherent, but to consider the section 103A complaint separately.[86]All of those claims are struck out. Conclusion on strike out section 103A claim[87]While I have found that the has been unreasonable conduct and noncompliance by the Claimant, in the exercise of discretion as to strike out and the question of proportionality, I have considered separately the complaint brought under s103A of the Employment Rights Act 1996 i.e. automatically unfair dismissal because of a protected disclosure. This is a complaint of constructive dismissal based on the Claimant’s resignation.[88]Following Cox v Adecco, I consider that I need to understand as far as possible what the claims are. Whereas I have not found this to be possible in the case of the discrimination claims, in relation to the section 103A complaint, it seems to me that key elements have been set out (albeit imperfectly) from the outset.[89]As to protected disclosures, I understand from the claim forms that there was an alleged protected disclosure made to HR on 29 January 2022. There is also the alleged protected disclosure made by the Claimant in 22 February 2022 when she escalated she says to prescribed persons and regulators. - 14 -[90]As to alleged breach of contract the Claimant relies on two matters: first, in relation to monies withheld from her suspension pay and second, being placed under disciplinary measures by Gemma Deehan who raised data breach investigations against her in May 2022. That was from 9 May 2022. The Claimant says that that was in direct response to her making protected disclosures. There is an alleged delay of some nine months in dealing with the Claimant’s grievance raised on 4 April 2022 and not resolved until 12 January 2023.[91]I have concluded that it would be Draconian to strike out the entirety of the Claimant’s claims when there is a complaint under s.103A which can be discerned from the claim forms. I also bear in mind that the Respondent has had to deal with this complaint at an interim relief hearing and so for this reason has some idea of how the Claimant puts this complaint and also have prepared evidence to deal with it. There are apparently witness statements which address this claim at least in some form.[92]It will be a matter for the Tribunal at the full merits hearing in January, but my view is that the focus of that hearing will need to be narrowly on these alleged protected disclosures and the components of breach identified in the claim forms.[93]I will set out a separate case management order reducing the length of the hearing and setting this as a judge sit alone, with an attempt to distil the issues. Deposit Order (section 103A claim only)[94]The Respondent invites me to make a deposit order on the basis that the claims have little reasonable prospect of success. Given that I have struck out the claims of discrimination, I am only considering here the claim brought under s.103A.[95]The case law suggests that I must have a reason to believe that the Claimant has little reasonable prospect of this claim succeeding.[96]While I note that Employment Judge Hodgson did not grant the application for interim relief I note that this is a different threshold test. Inevitably that was a hearing based on pleadings and argument without fully contested evidence or cross examination.[97]I understand the Claimant’s complaint to be in outline that she raised what she believed was a protected disclosure and as a result there was an investigation against her, a delay in dealing with her grievance and she did not receive the pay that she should have done, which she says was because of that protected disclosure. She says that cumulatively those matters amount to a serious breach which she resigned in response to such that she was constructively dismissed.[98]I have doubts about whether this claim will succeed. Nevertheless, it is difficult for me to say without the benefit of evidence that there is little reasonable - 15 - prospect of success. Although the Claimants claims and attempts to clarify them have been jumbled and difficult to follow, there is an identifiable thread in relation to this section 103A constructive unfair dismissal claim in the claim forms. I have not concluded that there is little reasonable prospect of success and I am not going to make a deposit order.[99]This complaint can proceed to the hearing in January. Claimant’s strike out application[100]The Claimant made an application described by her as a strike out application, but which might be better characterised as an application for an order barring the Respondent from rely on certain documents which she says are fake or forged.[101]I explained to the Claimant during the course of the hearing that the usual approach of the Tribunal to documents the authenticity of which is questioned by the other side is to deal with this final hearing having heard evidence. Cogent evidence will be needed before a Tribunal finds that a document is a forgery or something similar to that. It is a very serious allegation.[102]What I am not going to do is make an order striking out or barring the Respondent relying upon a particular document. What the Claimant must do in her witness statement is identify the document or documents that she says are forged or fake by reference to the page number in the agreed bundle of documents. She should state clearly why she believes that the documents are forged or fake, and specify who it is she believes is responsible and why she believes this. If there is a genuine (i.e. non-forged) version of the document she should ensure that this is in the bundle of documents for the hearing. She should make clear in her witness statement why she believes that that is the correct version.[103]If the Respondent needs to file a supplementary witness statement dealing with this allegation of forgery they should do so at least seven days before the final hearing.[104]If individuals are called by the Respondent to give evidence on this topic, the Claimant will need to put squarely in cross examination to those people that these documents are forged or fake.[105]The Tribunal will then make a decision as to whether these documents are forged or fake if this is an issue which they find they need to decide. If the documents in question are completely unrelated to the substance of the claim, it may be that the Tribunal finds that it does not need to resolve this dispute. - 16 -
CONCLUSIONS
[1]The claims were set out in a list of issues at a case management preliminary hearing in front of Employment Judge Adkin on 9 December 2024. Other claims brought by the claimant were struck out at that hearing. The list of issues before me was as follows:
CONCLUSIONS
[1]Protected disclosure1.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:1.1.1 Did the Claimant send a communication to HR on 29 January 2022?1.1.2 Did the Claimant made a disclosure to LADO (Local Authority Designated Officer) on 22 February 2022?1.1.3 Did the Claimant made a disclosure to OCC (either Oxfordshire County Council or Oxford City Council?) on 22 February 2022?1.2 In each case1.2.1 Did she disclose information?1.2.2 Did she believe the disclosure of information was made in the public interest?1.2.3 Was that belief reasonable?1.2.4 Did she believe it tended to show that:1.2.4.1 a person had failed, was failing or was likely to fail to comply with any legal obligation;1.2.4.2 information tending to show any of these things had been, was being or was likely to be deliberately concealed.1.2.5 Was that belief reasonable?1.3 If the claimant made a qualifying disclosure, it was a protected disclosure because it was made to the claimant’s employer. or1.4 If the claimant made a qualifying disclosure, was it made:1.4.1 To a prescribed person pursuant to section 43F, in which case:1.4.1.1 did the Claimant reasonably believe that the relevant failure fell within any and1.4.1.2 did the Claimant reasonably believe that the information disclosed and any allegation contained in it were substantially true.1.4.2 To another person pursuant to section 43G, in which case:1.4.2.1 did the Claimant reasonably believe that the information disclosed and any allegation contained in it were substantially true;1.4.2.2 did she not make the disclosure for purposes of personal gain;1.4.2.3 at the time of making the disclosure she reasonably believed she would be subject to a detriment if she made a disclosure to her employer or a prescribed person; or if there was no prescribed person evidence would be concealed or destroyed if she made a disclosure; or she had previously made a disclosure of substantially the same information to her employer or to a prescribed person.1.4.2.4 in all the circumstances it was reasonable for her to make the disclosure;1.4.2.5 did the Claimant reasonably believe that the relevant failure fell within any and If so, it was a protected disclosure.[2]Unfair dismissal2.1 Was the claimant dismissed?2.1.1 Did the respondent do the following things:2.1.1.1 Commence a disciplinary investigation against the Claimant in May 2022 in relation to alleged data breaches;2.1.1.2 Take nine months to deal with the Claimant’s grievance between April 2022 and January 2023;2.1.1.3 Withhold money from her pay during suspension.2.1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:2.1.2.1 whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and2.1.2.2 whether it had reasonable and proper cause for doing so.2.1.3 Did that breach any other term of contract? It will be for the Claimant to identify this in her witness statement.2.1.4 Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.2.1.5 Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.2.1.6 Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.2.2 If the claimant was dismissed, what was the reason or principal reason for dismissal i.e. what was the reason for the breach of contract?2.3 Was it a potentially fair reason?2.4 Was the reason or principal reason for dismissal that the claimant made a protected disclosure (an automatically unfair reason)?2.5 Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant?[3]Remedy for unfair dismissal3.1 Does the claimant wish to be reinstated to their previous employment?3.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?3.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.3.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.3.5 What should the terms of the re-engagement order be?3.6 If there is a compensatory award, how much should it be? The Tribunal will decide:3.6.1 What financial losses has the dismissal caused the claimant?3.6.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?3.6.3 If not, for what period of loss should the claimant be compensated?3.6.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?3.6.5 If so, should the claimant’s compensation be reduced? By how much?3.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?3.6.7 Did the respondent or the claimant unreasonably fail to comply with it?3.6.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?3.6.9 If the claimant was unfairly dismissed, did she cause or contribute to dismissal by blameworthy conduct?3.6.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?3.6.11 Does the statutory cap of fifty-two weeks’ pay or £105,707 apply?3.7 What basic award is payable to the claimant, if any?3.8 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? Findings The hearing Adjournment 3. The claimant did not attend the hearing on 27 January 2025 due to ill health. I postponed the hearing for reasons I gave orally at the time and gave directions for it to resume. Rule 49 order
The hearing
[4]I made a Rule 49 order of my own motion to anonymise the names of the young people who were named in the claimant’s disclosures. I gave reasons orally for my decision at the hearing. The young people are referred to as AB and CD in these Reasons. Reasonable adjustments[5]The claimant has a significant visual disability, keratoconus. She was able to look at documents by enlarging and enhancing them on a tablet device. This was obviously cumbersome for her and it was apparent that it was a significant strain for her to conduct the proceedings in this way.[6]To manage that difficulty and the claimant’s mental health issues I agreed she could have breaks every twenty five minutes (every half hour on the final day of hearing). Generally we managed to keep to those timings although sometimes the period of hearing was extended so a line of questioning could be completed.[7]Ms Deehan gave some of her evidence using text to speech technology as an adjustment for her own impairment. Documents[8]I had a bundle from the respondent running to 438 pages which was intended to be an agreed bundle. It appeared at the outset of the hearing however that the claimant was not satisfied that this contained all of the documents which she wished to include. She said that the respondent had refused to accept some of her documents although the respondent and I was not ultimately able to resolve that dispute. It appeared to me that the claimant had had difficulty finding and submitting the documents which she wished to rely on and had sent documents piecemeal electronically to the respondent and the Tribunal. It appeared she had not understood that the Tribunal does not have facilities to gather up the individual documents sent in this way and make them into a file.[9]Ultimately, the respondent very helpfully provided hard copies of the documents sent through by the claimant before and during the hearing. There were some breaks and delays in the hearing because of the production of new documents and the evidence of Ms Deehan had to be interrupted so she could look at some of the new documents produced. When the hearing adjourned due to the claimant’s ill health, I made an order for the respondent to gather up the claimant’s documents into a supplementary bundle. The respondent produced a supplementary bundle of some 648 pages for the resumed hearing.[10]The claimant had continued to produce additional documents in the days leading up to the resumed hearing and on the day itself. She told me that this was because she had to work so slowly due to her visual impairment and her mental health issues. She told me she needed a further hour on the morning of the hearing to complete the provision of documents and I allowed her that further time,. She provided some further documents, a number of which were already contained in one of the existing bundles.[11]The claimant told me that the risk assessment from 2018 in the respondent’s bundle was a fake document as was a contract of employment which purported to be her contract. Part of her reasoning was that versions had been produced which were signed and also versions which were unsigned. Mr Sheppard on instructions said that the documents were retained in both hard and electronic copy by the respondent. The hard copy versions were signed and the electronic versions were not signed. I did not have evidence on the basis of which I could conclude that any of the documents which I had been provided with were forgeries. Timetabling[12]On the final day on the hearing, the Tribunal sat until after 5 pm to finish evidence and submissions. I had had to explain to the claimant during the course of the day that she needed to plan her time to finish cross examining the witnesses and for there to be time for submissions. I considered that the claimant had had sufficient time to cross examine the respondent’s witnesses and that it would not have been proportionate for the matter to go part heard again to another date. The claimant wanted to ask the witnesses questions about matters which did not form part of her claim because they had been struck out and I encouraged her to focus on the claims in the list of issues. Mr Sheppard kept his oral submissions to under ten minutes to facilitate the hearing finishing. Witnesses[13]I had witness statements for and heard evidence from the claimant and Ms A Gardner, a former employee of the respondent, on her behalf.[14]For the respondent, I had statements for and heard evidence from: Mr K Rodger, formerly group director of education and children’s services; Ms G Deehan, head of operations; Ms E Bastock, human resources manager. Facts in the claims[15]The respondent is a multi academy trust for special schools. It is sponsored by a charity called MacIntyre Care, which is a separate legal entity.[16]The claimant commenced employment with the respondent on 16 April 2018 as a residential support worker at the respondent’s Endeavour Academy. This is a specialist school and children’s home in Oxford for children and young people with autism and severe learning difficulties. The claimant was initially doing waking nights.[17]I saw a risk assessment which the claimant appeared to have signed on 15 March 2018. The risk assessment noted some adjustments which needed to be made for the claimant to accommodate her visual impairment. These included providing her with written materials in a larger font and ‘with enough notice’.[18]A further risk assessment dated 20 April 2021 related to covid adjustments rather than to the claimant’s visual impairment.[19]The claimant brought a grievance on 16 November 2021 about treatment by colleagues which she considered to be bullying. She made allegations of race discrimination and age discrimination. By a letter dated 13 December 2021, Ms S Hasler, HR adviser, did not uphold that grievance. Protected disclosure[20]On 29 January 2022, the claimant sent a long email to the HR inbox entitled ‘Whistleblowing MAT (EH) Part 1’.[21]In this email the claimant raised a number of concerns about how children and young people were being cared for at Endeavour House. In particular, she was concerned about the care provided to AB, a young person who was gravely ill and had recently died. It is clear that the claimant had been profoundly affected by AB’s illness. She considered that his care had been inadequate. She was also concerned about CD, a young person whom she said had been confined to his room as a result of covid . She raised some more general concerns about other matters, including training on handling of medication, food storage, food provision, staffing levels and other safety issues.[22]The claimant wrote a further email on 4 February 2022 raising further concerns.[23]Mr Rodger was appointed to manage the claimant’s whistleblowing concerns. He met with the claimant via Teams on 8 February 2022 to obtain information about her concerns. He then sent her a letter dated 10 February 2022. He attached draft notes of their meeting and thanked her for raising her concerns.[24]He told the claimant that there would be an external investigation into AB’s care and support covering the areas which the claimant had raised. The investigation would also consider the handling of the incident where CD was isolated in his bedroom and the more general issues the claimant had raised about matters such as staffing shortfalls.[25]Some of the other matters raised by the claimant had already been raised by Ofsted after an inspection in September 2021 and were being addressed. This included issues about food storage.[26]Mr Rodger attached the letter and minutes to an email of 11 February 2022. There was an interchange of emails between the claimant and Mr Rodger in which Mr Rodger said that there had been some immediate changes in respect of the preparation of medicine. On 14 February 2022, the claimant wrote to Mr Rodger: ‘Thank you. This is incredibly reassuring,’[27]On 24 March 2022 the claimant submitted a Data Subject Access Request asking for data the respondent held about her from 2018 onwards.[28]Mr Rodger was absent from work for a significant period due to ill health and Ms Deehan wrote to the claimant on 1 April 2022 to inform the claimant about the outcome of the investigation conducted by Ms A Parr. She was assisted in preparing the letter by Ms S Campos, the respondent’s governance and compliance manager. Ms Deehan had been employed by the respondent since November 2021 and had not previously had contact with the claimant.[29]The investigation had led to various recommendations being made including as to the need for risk assessments for the handling of cytotoxic medication. The investigation did not conclude that there had been a shortfall in the care provided to AB nor that there had been an issue in the isolation of CD in his room. Ms Deehan said: ‘A review of this kind always brings helpful recommendations to support best practice and, and address areas for development. I can assure you that the Principal and her Senior Leadership Team will be working to ensure that all learning gleaned from the investigation is implemented going forwards.’[30]The claimant meanwhile had been signed off sick from 28 March 2022 with stress at work and did not return to work with the respondent prior to her resignation.[31]On 4 April 2021 the claimant submitted a grievance about what she described as ‘systematic bullying and differential treatment’ at Endeavour House. She included a number of complaints about her treatment by her manager and colleagues.[32]Ms Deehan said that a decision was made to ask an external HR professional to investigate this grievance to provide the claimant with reassurance that the matter was being looked at objectively. Ms S Francis-Myles was appointed in April 2022.[33]Ms Campos was preparing the response to the claimant’s DSAR. In the course of her work on the DSAR, she found that the claimant had sent 22 emails containing data including photographs, names and health care details of service users, to her personal email address. On 6 May 2022, Ms Campos submitted an account of the issue to the respondent’s adviser on data protection matters, an organisation called GDPRIS.[34]Ms Campos contacted the claimant about the matter and the claimant told her that she had been given permission to use her personal tablet because of her visual impairment. This involved information being sent between her work and personal email accounts. She also said that information had to be passed to third parties with respect to the whistleblowing. Ms Campos was told by GDPRIS that the matter would need to be reported to the ICO and that the claimant should be told to delete the emails. A report was made to the ICO on 10 May 2022.[35]Ms Deehan wrote to the claimant on 9 May 2022 to tell her that the 22 emails had been found whilst the respondent was responding to her DSAR. She said that the respondent was obliged to report the breach to the ICO. The claimant was asked to delete the emails and confirm she had done so and to return any hard copies she might have made.[36]The email concluded: ‘As per the MacIntyre Academies Data Protection Policy paragraph 23 this may now be investigated under MacIntyre Academies’ Disciplinary Policy and Procedure. We have temporarily restricted your access to the MacIntyre Academies ICT systems’.[37]The claimant was cross examined about the fact that the email did not say that the claimant would certainly be investigated but only that she ’may’. I understood the claimant’s evidence to be that, because of the nature of her employment, once an allegation was raised involving a child and safeguarding, a disciplinary investigation was mandatory. She considered that she was under investigation from 9 May 2022. She said that this was necessary in accordance with statutory guidance from the Department of Education: Keeping children safe in education.[38]The claimant said that the alleged data breach was a safeguarding incident and that she was immediately suspended once the email was sent to her on 9 May 2022. She said that she remained under investigation thereafter and the effect of this situation was that she could not be interviewed in respect of her whistleblowing. Her evidence in this respect was confusing but the gist of it was that she believed that, under the Public Interest Disclosure Act 1998, if a person was identified as ‘part of the problem’ they did not have a right to be interviewed and asked questions about the whistleblowing.[39]Ms Deehan had not looked at the claimant’s employee file at the time and was not aware of her risk assessment or risk assessments. She said that the respondent had an obligation to report a data breach within 72 hours. She had not further investigated what adjustments the claimant had had because she accepted what the claimant said about sending the emails in connection with her disclosure. Ms Deehan said she never mentioned safeguarding. She saw the issue as being an issue about data breach. The respondent’s case was that there was no disciplinary investigation and no suspension.[40]Mr Rodger said that the 9 May 2022 email was not about safeguarding.[41]The claimant put to Ms Deehan that she was aware that the claimant had an adjustment which allowed her to send emails to her private email account. Ms Deehan denied that that was the case. The claimant suggested to Ms Deehan that it was Ms Deehan who had destroyed the much more extensive risk assessment the claimant alleged had been prepared which contained the adjustment the claimant relied on. The claimant said that this risk assessment was so extensive it had to be carried out and updated on a daily basis. She said that the risk assessment in the bundle was a forgery. The claimant put to Ms Deehan that she had done this because the claimant had pursued her whistleblowing from 1 April 2022 to 11 May 2022, escalating her whistleblowing complaints. There were emails between these dates in which the claimant wrote to Ms Deehan reiterating her concerns and copying in Ofsted and Oxfordshire County Council.[42]The claimant wrote back the same day to say that she could not be in breach as she had permission to use her own tablet and had to send information between email accounts. Also she was in the middle of the whistleblowing process and had to pass information to third parties.[43]Ms Deehan wrote again to the claimant on 10 May 2022 saying that if the matter was investigated under the disciplinary procedure, the claimant would be asked about her account of events. The priority at that time was the deletion / return of the emails.[44]On 12 May 2022, Mr Rodger sent the claimant an email covering a number of matters involving the claimant. He told her she had done the right thing in raising her concerns and pursuing them further with Oxfordshire County Council. He updated her about her DSAR. On the issue about the data, he said that they had sought clarity from the ICO and had been told that it was correct for them to report the issue and to request deletion of the emails. He said: ‘Please can you confirm that they will not be used for any other purpose than the whistle blow and that they will be deleted once OCC’s deliberations are concluded.’[45]He also wrote to the claimant about a concern she had raised concerning staff members using work devices on the WhatsApp platform: ‘This was an inappropriate use of Trust IT and the devices have been removed from the group. Having reviewed the data we control we can confirm that there was one piece of information shared about you (your initials on an allocation list). This has been given to you under the Subject Access Request. I’m sure you will appreciate that the Trust cannot provide you with data it does not own or have access to. Colleagues may have created WhatsApp groups on their personal devices over which we have no control from a data perspective., We have reiterated to all colleagues that WhatsApp is not a suitable tool for work and the group in question has been shut down.’[46]He said that if the claimant felt that colleagues had used social media or messaging platforms inappropriately she should raise it as part of her grievance.[47]Mr Rodger also updated the claimant on her grievance, saying that an external investigator had been appointed ‘but [we] have been awaiting your return to work or an occupational health assessment to confirm that you are well enough to engage in the process before commencing an investigation.’[48]An occupational health report dated 18 May 2022 said that the claimant was not at that point fit to attend a grievance hearing due to having recently undergone eye surgery. She would be fit within three to four weeks.[49]On 31 May 2022 the ICO reported back to the respondent. The ICO was satisfied that it did not need to take further action because of various factors including the fact that the respondent was investigating the matter, had asked for deletion of the emails and was considering use of its disciplinary policy.[50]On 22 July 2022, the claimant was informed that her sick pay would move to half pay in line with her contractual entitlement.[51]Ms Francis-Myles met with the claimant on 18 and 25 July 2022 to discuss her grievance. She held some further investigatory meetings with other employees on 21 July and 2 August 2022. She provided a written outcome on 15 August 2022.[52]One of the areas of complaint by the claimant was the use of WhatsApp discussions by colleagues. She was concerned she had been discussed in a negative manner in these groups. Because the WhatsApp group in question was not on work devices, it was not possible to establish what might have been said. Ms Francis-Myles investigated and reported on a total of 32 issues raised by the claimant. Ms Francis-Myles made recommendations about ensuring the claimant had adjustments she required for her disability and that a specific risk assessment was carried out prior to the claimant’s return to work.[53]The claimant appealed the grievance outcome and her appeal was completed in two parts. Ms H Bass, workforce director of MacIntyre Care, was appointed to hear the appeal and held a meeting on 22 September 2022. The claimant’s union representative had asked for the meeting to be adjourned due to the claimant’s health which resulted in Ms Bass only being able to consider some of the points of appeal as Ms Bass herself was leaving the employment of MacIntyre Care shortly after that date. At the claimant’s request the grievance appeal was also adjourned whilst an occupational health assessment of the claimant was carried out to investigate what adjustments the claimant might require. These adjustments were then identified and implemented.[54]On 13 December 2022, the claimant wrote to Ms Deehan to enquire about the outcome of ‘the investigation that you opened against me as follows…[she then included the 9 May 2022 email]’.[55]On 14 December 2022, the claimant emailed Mr Rodger and Ms Deehan to say that she had been told by Oxfordshire County Council that their investigation had been concluded. She said that she had deleted the 22 emails the subject of the alleged data breach.[56]On 15 December 2022, Ms Deehan wrote to the claimant thanking her for confirming that the emails had now been deleted and saying: ‘I wish to clarify that we did not conduct a disciplinary investigation in relation to the matter, nor were you at any time suspended or subject to further disciplinary action’.[57]Ms Deehan gave evidence that she decided not to proceed with a disciplinary investigation because, whilst she considered that the claimant had incorrectly sent personal data of service users to her personal email account and that this was a data breach, she accepted that the claimant had misunderstood and believed she could use her personal account in that way.[58]Ms Deehan accepted in evidence that she had failed to ensure the claimant understood that this was the case nearer to the time she made her decision, which I understood to have been in May 2022.[59]An independent HR consultant, Ms G Craik, had been appointed to hear the remainder of the claimant’s grievance appeal and she met with the claimant on 29 November, 7 and 9 December 2022. She sent the claimant a grievance appeal outcome on 12 January 2023 running to some 31 pages.[60]On 27 February 2023, Ms Bastock wrote to the claimant asking whether the claimant was in a position to attend a meeting to discuss a return to work. Earlier occupational health advice had suggested the grievance needed to run its course before the claimant would be fit to attend work.[61]The claimant said that Ms Bastock, in sending this email, was seeking to get her arrested. She said that she could be arrested if she attended work because of what had been said in the grievance outcome about the data breach.[62]On 7 March 2023, the claimant emailed the respondent saying that she was resigning with immediate effect and that she had been constructively dismissed. She set out a number of reasons for that assertion. She complained about the ongoing use of a ‘platform’ (understood to be a WhatsApp group) which she said constituted a serious ongoing data breach. The claimant had been shown this platform on 20 February 2023. She also said that she had been victimised as a result of her whistleblowing.[63]The claimant gave evidence that she had in fact resigned on 12 December 2022 when she contacted ACAS. She denied that the discovery of the platform was the principal reason for her resignation. She said that discovery was just confirmation of what she had been saying previously.[64]On 8 March 2023, Ms Bastock acknowledged the claimant’s resignation. She said that the respondent was disappointed that the claimant had resigned and she invited the claimant to get in touch before 14 March 2023 if she changed her mind. Claimant’s disclosures to Oxfordshire County Council and LADO[65]No documents to Oxfordshire County Council or the local authority designated officer (‘LADO’) dated 22 February 2022 were ever disclosed. There were documents ultimately provided which showed that the claimant had raised the issue with OCC and Ofsted on other dates.[66]The claimant had raised concerns anonymously with Ofsted in September 2021 which led to an interaction as a consequence of which some recommendations were made, Mr Rodger thought, around medication. The communications to OCC were in April and May 2022. Investigation into WhatsApp group[67]The claimant said that there were data breaches in respect of the staff WhatsApp group which were not treated in the same way as the data breach relating to the emails she sent to her personal email account.[68]Mr Rodger said he did not himself see any WhatsApp messages and did not understand that there were messages in which there was a serious data breach. He was not involved in investigating that issue. The issue in respect of the WhatsApp group as he had understood it was about inappropriate use of the respondent’s ICT not a data breach relating to children. Other evidence about the WhatsApp group[69]Ms Gardner gave evidence that she had been joined to a WhatsApp group when she worked at Endeavour House. Law Protected disclosures
Law
[70]Section 43B(1) ERA 1996 defines a qualifying disclosure as a disclosure of information which in the reasonable belief of the worker making the disclosure is in the public interest and tends to show one of a number of types of wrongdoing. These include ‘(b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject’ and ‘(d) that the health and safety of any individual has been, is being or is likely to be endangered.’[71]To be a protected disclosure, a qualifying disclosure must be in circumstances prescribed by other sections of the ERA, including, under section 43C, to the worker’s employer.[72]Guidelines as to the approach that employment tribunals should take in whistleblowing detriment cases were set out by the EAT in Blackbay Ventures (trading as Chemistree) v Gahir (UKEAT/0449/12/JOJ):72.1 each disclosure should be identified by reference to date and content72.2 the basis upon which the disclosure is said to be protected and qualifying should be addressed72.3 if a breach of a legal obligation is asserted: each alleged failure or likely failure to comply with that obligation should be separately identified; and the source of each obligation should be identified and capable of verification by reference for example to statute or regulation72.4 the detriment and the date of the act or deliberate failure to act resulting in that detriment relied upon by the claimant should be identified72.5 it should then be determined whether or not the claimant reasonably believed that the disclosure tended to show the alleged wrongdoing and, if the disclosure was made on or after 25 June 2013, the claimant reasonably believed that it was made in the public interest.[73]There is a number of authorities on what a disclosure of ‘information’ is. It must be something more than an allegation; some facts must be conveyed: Cavendish Munro Professional Risks Management Ltd v Geduld [2010] ICR 325. There is no rigid dichotomy between allegations and facts. A statement must have sufficient factual content and specificity such as is capable of showing one of the matters listed at s 43B(1): Kilraine v Wandsworth LBC [2018] ICR 1850.[74]The burden of proof is on the worker to show that he or she held the requisite reasonable belief. The tribunal must look at whether the claimant subjectively held the belief in question and objectively at whether that belief could reasonably be held. The allegation need not be true: Babula v Waltham Forest College [2007] IRLR.[75]The reasonableness of the worker’s belief is determined on the basis of information known to the worker at the time the decision to disclose is made: Darnton v University of Surrey [2003] IRLR 133.[76]Factors relevant to the issue of whether a worker reasonably believed that a disclosure was in the public interest include:76.1 the number in the group whose interests the disclosure served (the larger the number, the more likely the disclosure is to be in the public interest)76.2 the nature of the interests affected (the more important they are, the more likely the disclosure is to be in the public interest)76.3 the extent to which those interests are affected by the wrongdoing disclosed (the more serious the effect, the more likely the disclosure is to be in the public interest)76.4 the nature of the wrongdoing disclosed (the disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing)76.5 the identity of the alleged wrongdoer (the larger and more prominent the alleged wrongdoer, the more likely the disclosure is to be in the public interest)(1) Chesterton Global(2) Verman v Nurmohamed [2017] IRLR 837. Constructive dismissal[77]Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is taken to be dismissed by his employer if “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.[78]It is established law that(i) conduct giving rise to a constructive dismissal must involve a fundamental breach (or breaches) of contract by the employer;(ii) the breach(es) must be an effective cause of the employee’s resignation; and (ii) the employee must not, by his or her conduct, have affirmed the contract before resigning.[79]If a fundamental breach is established the next issue is whether the breach was an effective cause of the resignation, or to put it another way, whether the breach played a part in the dismissal. In United First Partners Research v Carreras 2008 EWCA Civ 1493 the Court of Appeal said that where an employee has mixed reasons for resigning, the resignation would constitute a constructive dismissal if the repudiatory breach relied on was at least a substantial part of those reasons.[80]In this case the claimant claims breach of the implied term that the employer should not, without reasonable and proper cause, conduct itself in a way that is calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence that exists between an employee and her employer. Both limbs of that test are important. Conduct which destroys trust and confidence is not in breach of contract if there is reasonable and proper cause.[81]It is irrelevant that the employer does not intend to damage this relationship, provided that the effect of the employer’s conduct, judged sensibly and reasonably, is such that the employee cannot be expected to put up with it: Woods v Car Services (Peterborough) Limited [1981] ICR 666. It is the impact of the employer’s behaviour (assessed objectively) on the employee that is significant - not the intention of the employer (Malik v BCCI [1997] IRLR 462. It is not however enough to show that the employer has behaved unreasonably although “reasonableness is one of the tools in the employment tribunal’s factual analysis kit for deciding whether there has been a fundamental breach”: Buckland v Bournemouth University Higher Education Corporation [2010] IRLR 445.[82]The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In Omilaju v Waltham Forest LBC [2005] ICR the Court of Appeal said that the final straw may be relatively insignificant but must not be utterly trivial: “The test of whether the employee's trust and confidence has been undermined is objective.”[83]A breach of the implied term of trust and confidence is necessarily a repudiatory breach of contract: Ahmed v Amnesty International [2009] ICR 1450.[84]In Kaur v Leeds Teaching Hospitals NHS Trust 2018 EWCA Civ 978 the Court of Appeal listed five questions that it should be sufficient ask in order to determine whether an employee has been constructively dismissed;a. What was the most recent act (or omission) on the part of the employer which the employee says cause, or triggered, his or her resignation?b. Has he or she affirmed the contract since that act?c. If not, was that act (or omission) by itself a repudiatory breach of contract?d. If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which viewed together amounted to a (repudiatory) breach of the implied term of trust and confidence? (If it was, there is no need for any separate consideration of the previous possible affirmation).e. Did the employee resign in response (or partly in response) to that breach?[85]Under section 103 A Employment Rights Act 1996 an employee is unfairly dismissed if the reason or principal reason for the employee’s dismissal is that the employee made a protected disclosure. Submissions[86]The respondent prepared written submissions and both sides made oral submissions which I have taken into account. Conclusion Issues 1. Protected disclosure1.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:1.1.1 Did the Claimant send a communication to HR on 29 January 2022?1.1.2 Did the Claimant made a disclosure to LADO (Local Authority Designated Officer) on 22 February 2022?1.1.3 Did the Claimant made a disclosure to OCC (either Oxfordshire County Council or Oxford City Council?) on 22 February 2022?1.2 In each case1.2.1 Did she disclose information?1.2.2 Did she believe the disclosure of information was made in the public interest?1.2.3 Was that belief reasonable?1.2.4 Did she believe it tended to show that:1.2.4.1 a person had failed, was failing or was likely to fail to comply with any legal obligation;1.2.4.2 information tending to show any of these things had been, was being or was likely to be deliberately concealed.1.2.5 Was that belief reasonable?1.3 If the claimant made a qualifying disclosure, it was a protected disclosure because it was made to the claimant’s employer. or1.4 If the claimant made a qualifying disclosure, was it made:1.4.1 To a prescribed person pursuant to section 43F, in which case:1.4.1.1 did the Claimant reasonably believe that the relevant failure fell within any and1.4.1.2 did the Claimant reasonably believe that the information disclosed and any allegation contained in it were substantially true.1.4.2 To another person pursuant to section 43G, in which case:1.4.2.1 did the Claimant reasonably believe that the information disclosed and any allegation contained in it were substantially true;1.4.2.2 did she not make the disclosure for purposes of personal gain;1.4.2.3 at the time of making the disclosure she reasonably believed she would be subject to a detriment if she made a disclosure to her employer or a prescribed person; or if there was no prescribed person evidence would be concealed or destroyed if she made a disclosure; or she had previously made a disclosure of substantially the same information to her employer or to a prescribed person.1.4.2.4 in all the circumstances it was reasonable for her to make the disclosure;1.4.2.5 did the Claimant reasonably believe that the relevant failure fell within any and If so, it was a protected disclosure.[87]The email of 29 January 2022 contains information about the care provided for AB, for example that he showed signs of digestive discomfort and in the claimant’s view required a different diet with which he was not provided. There is information about the claimant’s observation of AB’s episodes of pain and what she considered a failure to administer pain medication. There is information about the incident when CD was confined to his room and an assertion that this was a deprivation of liberty. There is other information but the gist of all of the information is that a duty of care, whether common law or statutory, to the young people is not being complied with.[88]It was apparent to me from the claimant’s communications of concern about these issues to the respondent and to outside bodies and from her evidence to the Tribunal that she was genuinely and passionately concerned about what she perceived to be failings by the respondent in respect of the young people. Although these concerns were not in the main upheld by the investigation which took place, the claimant was not cross examined to the effect that she did not reasonably believe the information she disclosed tended to show the relevant failures. Given the matters she described in her disclosures and in the absence of evidence to the contrary, I concluded that the claimant did have a reasonable belief that the information she disclosed tended to show failures in the respondent’s duty of care towards the young people.[89]The respondent did not make any submissions on whether the claimant reasonably believed the disclosure was in the public interest, relying essentially on Employment Judge Hodgson’s observations on the claimant’s interim relief application as to whether the claimant was likely to establish that there was a disclosure of information which tended to show one of the relevant types of wrongdoing.[90]It seemed to me that the claimant did have a reasonable belief that her disclosures were in the public interest given that they concerned the treatment of highly vulnerable young people in a school / care home environment run by a respondent with responsibilities for a large number of such young people.[91]So far as the other alleged disclosures were concerned, there was simply no evidence that there were any disclosures to Oxfordshire County Council on the dates set out in the list of issues. There were emails in the claimant’s supplementary bundle to Ms Deehan copied to individuals at Oxfordshire County Council dated 12 April 2022, 14 April 2022 and 1 May 2022. If I had had to consider these, I would have concluded that they also were protected disclosures. It was not necessary to consider whether they were protected as having been made to a prescribed person in the appropriate circumstances as they were in any event also addressed to the respondent. 2. Unfair dismissal 2.1 Was the claimant dismissed? Issue:2.1.1 Did the respondent do the following things:2.1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:2.1.2.1 whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and2.1.2.2 whether it had reasonable and proper cause for doing so.2.1.3 Did that breach any other term of contract? It will be for the Claimant to identify this in her witness statement2.1.4 Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end. 2.1.1.1 Commence a disciplinary investigation against the Claimant in May 2022 in relation to alleged data breaches;[92]I was satisfied on the evidence that no disciplinary investigation was ever pursued in relation to the data breach. The claimant was warned that such an investigation might be commenced but was ultimately told that it had not been.[93]There was an unfortunate delay in informing the claimant that a decision had been made not to pursue any disciplinary investigation.[94]I was not persuaded that, as the claimant argued, the matter was a safeguarding issue and that she automatically became subject to a disciplinary investigation once the allegation was made. I could see nothing in her contract or the statutory guidance which would have had that effect. Issue: 2.1.1.2 Take nine months to deal with the Claimant’s grievance between April 2022 and January 2023;[95]It did take nine months to determine the claimant’s grievance. Was that a breach of contract in all the circumstances? I considered that it was not. Some of the delay was due to the claimant’s health. The rest of it appeared to be the result of employing external people to consider the grievance and the thoroughness with which they conducted that exercise. In all of those circumstances the delay was not excessive. Issue: 2.1.1.3 Withhold money from her pay during suspension.[96]The claimant was never suspended from the respondent’s employment. She was off sick for a long period with stress and ultimately her pay was reduced in accordance with her contract of employment to half pay and then no pay. Again I could see no contractual or other provision which led to the conclusion advanced by the claimant that she was automatically suspended once the email of 9 May 2022 was sent to her.[97]None of this behaviour, taken separately or together, constituted a repudiatory breach of the implied term of trust and confidence. The delay in telling the claimant that there had been a decision not to pursue a disciplinary investigation was in my view the most detrimental treatment she was subject to but, in the context of the claimant’s other treatment by the respondent did not reach the threshold of repudiatory conduct, even had she relied on this matter as a breach of contract. Issue: 2.1.5 Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation. 2.1.6 Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.[98]I did not have to consider this issue as I concluded that there was no breach of contract. Issues: 2.2 If the claimant was dismissed, what was the reason or principal reason for dismissal i.e. what was the reason for the breach of contract? 2.3 Was it a potentially fair reason? 2.4 Was the reason or principal reason for dismissal that the claimant made a protected disclosure (an automatically unfair reason)? 2.5 Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant? 98. I did not have to consider any of these issues given that I found there was no breach of contract.[99]Had I found that there was a constructive dismissal, I would not have found that it was due to the claimant’s protected disclosures. I was satisfied that the reason for raising the data breach with the claimant in the way that Ms Deehan did was because the matter was rightly viewed as serious. I could see no evidence linking the progress of the grievance to the protected disclosures. It was clear to me that the claimant’s pay was ultimately reduced simply because the respondent was operating its contractual sick pay procedures.
Conclusion
[100]I have not upheld the claimant’s claim for unfair dismissal for the reasons set out above. This has been a difficult and painful case for the claimant and for the respondent’s witnesses. The matters at the heart of the claimant’s disclosures have clearly touched her and the respondent’s witnesses deeply. It is a matter for regret that she felt she had to resign from her employment but I have concluded that her perception of her treatment by the respondent, whilst sincere, was a distorted one.
Conclusion
[1]Some of the correspondence sent by the claimant was sent outside the time limit for an application for reconsideration. I have nonetheless considered the claimant’s application, bearing in mind the difficulties presented by her visual impairment.[2]There is no reasonable prospect of the original decision being varied or revoked, because, insofar as I have understood her application, it appears that the claimant essentially seeks to reargue matters on which the Tribunal heard detailed submissions at the hearing and made findings based on the evidence in front of it. It is not in the interests of justice for those matters to be relitigated. Insofar as the claimant has suggested that there were procedural mishaps, I cannot see that such mishaps occurred.[3]My understanding of the claimant’s application dated 8 May 2025 is that she says that:a. I erred in my construction of Employment Judge Adkin’s case management orders of 9 December 2024 and the list of issues contained in those orders. I believe that she is saying I should have allowed changes to that list of issues, in part because she had applied for a reconsideration of EJ Adkin’s orders. I cannot see any such application on the Tribunal file;b. I erred in addressing only the issues which I did because Employment Judge Adkin had wrongly struck out some of the claimant’s claims.[4]The claimant otherwise refers to her appeal against the decision on her application for interim relief. I have not been able to understand what relevance she is saying this appeal has to her application for reconsideration of my Judgment.[5]The claimant has also set out a list of proposed adjustments for a written submissions process. This does not appear to be a list previously provided to me and it does not appear to be relevant to the claimant’s application for reconsideration of my Judgment. It may be that it is submitted in support of an extension of time to submit the application for reconsideration, which extension I have allowed.[6]So far as the list of issues is concerned, my practice is to identify with the parties at the outset of a hearing whether there is any change to the existing list. The early parts of the hearing were taken up with trying to make sure that documents which the claimant wished me to look at were available rather than with a challenge to the list of issues drawn up by Employment Judge Adkin. I have not noted any challenge by the claimant to the list of issues and it would not have been permissible for me to go behind Employment Judge Adkin’s decision on strike out some of the claims.[7]My understanding of the claimant’s application sent on 19 May 2025 is that she says that I erred:a. in my description of her original role with the respondent and its commencement date;b. in not finding that a risk assessment for her had been suppressed by the respondent and/or that the version of the risk assessment provided by the respondent was a forgery;c. by not looking at visually enhanced documents from her bundle.[8]It was not relevant to the matters I had to decide that the claimant may have had an earlier period of employment with the respondent.[9]I reached conclusions about the claimant’s risk assessment based on evidence and submissions from the parties and it would not be in the interests of justice to allow that matter to be relitigated.[10]I had regard to documents in the claimant’s bundle / documents otherwise produced by the claimant to which she directed my attention. There were difficulties presented by the fact that these documents emerged piecemeal and were often sent several times but I allowed the claimant to produce documents throughout the hearing. The fact that documents had been enlarged / enhanced did not stop me from considering them.