Miss A Ghosh v Ericsson Ltd: 3310155/2021 and 3320682/2021

EMPLOYMENT TRIBUNALS

Case No 3310155/2021, 3320682/2021

Between

Miss A GhoshClaimant

Ericsson LimitedRespondent

Before

Employment Judge Gumbiti-Zimuto

Mr L Betchley (instructed by counsel) for claimant

Mr R Dennis (instructed by counsel) for respondent

Date 16 October 2024

JUDGMENT

[1]INTERIM RELIEF APPLICATION The claimant’s application for interim relief is dismissed. JUDGMENT

REASONS

[1]The claimant relies on two disclosures that the claimant contends are protected disclosures. These are and email to Juan Carlos Castro p171 and p226 a disclosure made on the respondent’s speak up portal.

[2]The respondent saysa. The alleged protected disclosures are not likely to be found to be protected disclosures because the fist disclosure does not contain any information that the claimant could have believed tends to show any relevant failure that is a criminal offence or legal obligation. The claimant does not say anything here to suggest that the respondent (or anyone else) has committed a criminal offence or failed to comply with any legal obligation, or is likely to do so.

b. In any event, even if the claimant genuinely held such a belief, that belief was unreasonable.

c. Further, the claimant cannot have genuinely or reasonably believed that this disclosure was made in the public interest. There is no public interest in whether:

(i) the respondent extends “personal” favours to its clients, by agreeing to meet short deadlines; or

(ii) the respondent uses its formal channels for orders of this nature; (J) Page 1 of 3

d. As to the second disclosure the claimant relies on her disclosure to respondent’s “Speak Up” channel on 26 April 2021.

e. Miss J Dauncey was not aware of that disclosure until after she had dismissed the claimant: see (JD/51, 61-62, 70). Accordingly, the claimant cannot hope to succeed in her claim on this basis.

f. In any event, the Tribunal is not likely to conclude that this message contains any qualifying disclosure either. The claimant has not identified any specific passages relied upon. The respondent contends that taking the document as whole. The Tribunal is not likely to conclude that anything in those passages (or elsewhere in this message) constituted a qualifying disclosure.

g. The claimant does not disclose any information that she could have believed tends to show any relevant failure. The claimant does not say anything to suggest that the respondent (or anyone else) has committed a criminal offence or failed to comply with any legal obligation, or that they are likely to do so.

h. If the claimant did believe that the respondent or Ravi had breached some legal obligation, or was likely to do so, any such belief was unreasonable.

i. Further, the claimant cannot have genuinely or reasonably believed that this disclosure was made in the public interest.

[3]The claimant has not engaged in this application directly with all of those points but says that as to disclosure 1 (p166) - email to Juan Carlos Castro. The reference to “Personal favour” implies some form of wrong doing, perhaps under the Bribery Act or at least the breach of a legal obligation. The respondent is a publicly listed company with a strong anticorruption policy, it has public investors and so any kind of wrong doing should cause concern for those interested.

[4]As to disclosure 2 (p221)- speak up portal Ericsson whistleblowing line. It is said that this refers to the Gap analysis work that was to be completed as a personal favour, and, “if you look under the bonnet” it is clear what the implication of what the claimant is saying is. The Investigation into the claimant’s disclosure had not started before the dismissal.

[5]The claimant today has to satisfy me that she has 'a significantly higher degree of likelihood than just more likely than not' in showing that. Applying that to a whistleblowing claim, according to the existing case law, as read along with the legislative amendment to whistleblowing law in 2013, the claimant must show that level of chance in relation to all the elements that: she made the disclosure(s) to the employer; she believed that it or they tended to show one or more of the matters itemised in the (J) Page 2 of 3 Employment Rights Act 1996 s 43B (1); that her belief in that was reasonable; that the disclosure(s) was or were made in the public interest; and that the disclosure(s) was or were the principal cause of the dismissal.

[6]While I am satisfied that it is possible that if the evidence comes out as the claimant would like to position it, and the Tribunal the draws the conclusions and inferences that the claimant wishes them to, the claimant might be able to show that there was a protected disclosure. However, on my summary assessment of all the material put before me I am not convinced that the claimant can say more than that it is possible that a Tribunal could conclude that there was a protected disclosure. I am not satisfied on a summary appraisal of the information put before me that it is likely that the claimant will show that that she made a protected disclosure.

[7]For those reasons the application for interim relief is dismissed.

[1]At this final hearing, we had available to us a combined hearing bundle to which both parties contributed which originally were numbered page 1 to 1,233. Some additional other documents were added to the hearing file following a contested application for permission to do so. That was allowed, in part, on Day 1 and the updated bundle ran to page 1359. We include in these reasons those we gave at the time for our decision on the contested application and those make clear which pages numbered 1234 to 1359 were admitted into evidence and which were not.

[2]We have heard from two witnesses. The claimant has given evidence in support of her own claim and adopted in evidence a witness statement that had been prepared and served in advance, as did Mrs Jo Dauncey, her former Line Manager who was the only witness called by the respondent.

[3]The case had originally been scheduled to last for 10 days. Unfortunately, the tribunal that was listed to consider it was only available for 5 days.

[4]We timetabled the hearing at the outset of Day 1 and accommodated the full two days cross examination the claimant said that she needed in order to ask the questions she had prepared to ask Mrs Dauncey and then rescheduled the case for the three days that we have heard submissions and made a decision. Therefore, the parties’ time for the hearing has not been curtailed by the tribunal only being able to sit for five days in the first sitting period.

[5]The hearing was adjourned part heard at the end of the evidence. This gave the parties the opportunity to exchange written skeleton submissions and the claimant took the opportunity to respond in writing to Mr Dennis’ written submission so we had those three sets of submissions to read before we heard orally from the parties on Day 6 (Day 1 of the resumed hearing session). The tribunal deliberated in chambers on Day 7 and gave oral judgment on Day 8.

[6]There was also a bundle of authorities that had been put together by the respondent and, as we have explained to the claimant, had there been any authorities in that or indeed elsewhere, that had not already been canvassed in either their skeleton arguments or the suggested self-direction of the law that Judge George circulated during the hearing, we would have invited the parties to comment upon it.

[7]There were a few preliminary matters to deal with: we rejected the respondent’s application for specific disclosure by the claimant for reasons we gave at the time and which are not now repeated. Written reasons for that decision can be requested within 14 days of the date on which this judgment is sent to the parties. We set out written reasons for the other preliminary decisions here. Preliminary matters 1: application to admit late disclosed documents

[8]These are our reasons for our decision on the respondent’s application to admit certain late disclosed documents. They were first disclosed to the claimant in the early hours of the morning on Friday 5 July, the hearing being due to start on 8 July.

[9]We heard the respondent’s submissions on their application on Day 1 before we started our reading. We gave the claimant the opportunity to respond to the application after we finished our reading at the start of Day 2. This meant that she had an opportunity to consider the documents in the afternoon of Day 1 since she expressed herself disadvantaged by having to react to so many late disclosed documents when she was mid-preparation for the hearing.

[10]The respondent had produced an amended draft index, the last section of which was headed “Respondent’s additional documents”. Document numbers 1 to 40 in that section (page (vi) of the index) were the proposed additions and they had been allocated page numbers to follow consecutively from page 1233 – originally the final page in the bundle. In these reasons we use the document numbers from that section and the page numbers allocated by the respondent. When some of the documents were admitted, they were not renumbered; the excluded documents were omitted without changing the page numbers.

[11]When the claimant had had time to consider them, some documents were admitted by consent.4.1 Document 1: Pages: 1234 to 1237

4.2 Document 12: Pages: 1283 to 1287

4.3 Document 13 : Pages: 1285 to 1287

4.4 Document 27: Pages: 1308 to 1309

4.5 Document 40: Page: 1359

[12]Some documents had been disclosed because potentially relevant but the respondent did not apply to admit them in evidence. They had, for reasons of speed, sent to the claimant all of the documents that they had recently discovered that were discoverable in the sense they were potentially relevant to issues in the case but limited their application to only some of them. Those in the index that the respondent did not apply to admit are documents 2, 6 to 11 inclusive, 20, 24. It was agreed that, on reflection, document 30 was already in the bundle and did not need to be inserted. The claimant did not apply for those document to be admitted and they are not in evidence.

[13]So, that left us with nine categories of documents.13.1 The first is the alleged timeline of events at Document 3, page 1240.

13.2 The second category comprises documents 4 and 5 which are pages 1260 and 1262.

13.3 Document 14 at page 1288 which actually seems to be another example of what Mr Dennis referred to as a “business as usual” email similar to those the claimant agreed to admit.

13.4 A series of emails and attachments which are said to be correspondence between Mrs Dauncey and HR (documents 15 to 19, 21, 22, 28, 29 and 31).

13.5 Document 23 at page 1303 which again seemed to stand be on its own, an email from Mr Martin to Mrs Dauncey,

13.6 Document 25, page 1306 a single page screenshot of a Microsoft Teams chat,

13.7 Document 26, page 1303, is an internal email between Mrs Dauncey and Mr Castro about a possible move to his team.

13.8 The grievance interview notes which are Documents 32, 34, 37, 38, and 39. They speak of investigation meeting notes which are 33, 35, and 36. Document 3, page 1240:

[14]We refuse this application.

[15]The document is undated, unsigned, and it would require further evidence by Mrs Dauncey to authenticate it as the timeline that we are told it is. Apparently, there is a reference to it in Mrs Dauncey’s grievance interview but the claimant argues that that could have been a reference to Appendix 10, the document she has agreed should go in.

[16]This timeline is not a simple timeline, it contains a wide range of issues that apparently Mrs Dauncey would say she considered at the time. The fact that it does so raises the question about why this information was not directly in Mrs Dauncey’s witness statement if it was relevant. The witness statement is the place where the primary evidence of the individual witnesses concerns and thought processes relevant to the issues should be found.

[17]We quite understand why the claimant wants to be in a position to consider each one of the things that are said about her in this timeline and whether they are justifiable or accurate complaints. Some of the timeline, extracts and emails, are available to the respondent in the hearing bundle in any event.

[18]It was clearly a discoverable document as soon as it had come to the respondent’s attention so there is no criticism of them for sending it to the claimant. But we do not think that it is an answer to say that there is no intention to cross examine the claimant about these incidents. If she is not cross examined about them, how are we to take them into account as evidence of genuine and valid concerns of competence. We think that admitting it would be potentially very unfair to the claimant.

[19]We acknowledge that it is possible that Mrs Dauncey may find giving evidence harder without it but, as we have already said, the primary evidence of the contents of it should have been in the witness statement and, as yet there is no primary evidence of when the document was made. So, we see no overwhelming reason to admit it, when set against the potential prejudice to the claimant.

[20]The explanation for late disclosure is insufficient, the witness statement should have contained the information, and we reject the application in respect of that. Document 4 and 5, pages 1260 and 1261:

[21]We allow the application in relation to pages 1260 and 1261, documents 4 and 5.

[22]The claimant accepts these documents are probably valid documents. Her argument against admitting them was her understanding that her protected disclosure concerning pay does not have to be true, the question for us being whether she made the disclosure of information that, in her reasonable belief, tended to show the relevant wrongdoing. She is absolutely correct that that is the case in relation to the alleged disclosure. However, it is not the case that these documents are only relevant to the protected disclosure, they are also potentially relevant to whether she was subjected to detriment 8 and detriment 10 and therefore we think it is necessary for a fair hearing that they are admitted. This is particularly so because, as we understand it, they are the only documents that are available in connection with those particular detriments. Document 14, pages 1288:

[23]The next thing we consider is the email at 1288, document 14, that should be admitted.

[24]We have read it; it is an email to the claimant was involved in; it seems fairly uncontroversial. The claimant saw it at the time although she did not address us on it specifically we do not see any reason why she should not be able to deal with anything that arises from it. It is the primary evidence and we think that that should be admitted. Documents 15 – 19, 21, 22, 28, 29 and 31

[25]The next category are all the various communications and attachments in March and April 2021 between Mrs Dauncey and HR. This is the one which was most time consuming for us to consider. The relevance of them are said to be evidence of contemporaneous exchanges between Mrs Dauncey and HR showing concern on her part about performance at particular times.

[26]Part of the claimant’s objection was that HR is not a witness and she expressed concern about whether the template documents that it is sought to introduce were genuine. Although HR is not a witness in the case, one party to the correspondence is going to be a witness. Again, this is not just a question of putting documents in. It is a question of further primary evidence being given and potentially cross examination. This is relevant because that time has to be accommodated for in the hearing time. The original time estimate would permit some expansion of cross examination but impact on the hearing. The potential for delay is a factor.

[27]On the one hand, that witness’s motivation is one of the central aspects to the case, possibly the key question that we have to decide in the case. We have read and considered all of these documents. We think it is relevant that, for example, the completed performance review document was not one that the claimant was shown at the time, a different route was followed. We are alert to the fact that chronology can be important, particularly in whistle blowing cases where there are a series of alleged communications and a series of alleged detriments. The respondent argues, in effect, that the risk of not admitting these is that a decision is taken by the tribunal without access to the best evidence available and that potentially disadvantages the respondent.

[28]We have also gone to Mrs Dauncey’s witness statement where she deals with the steps she took in connection with concerns about performance and behaviour, particularly at paragraph 38 and following. She does mention in paragraphs 38 a meeting with HR on 10 March and one of the documents could, if primary evidence was given, potentially support that date. But the document does not directly refer to the claimant.

[29]There is no reference in the witness statement to an initial attempt to prepare a probation review document along the lines of documents 21 and 22. However, the evidence already given does flag up what the witness will say was happening, in her mind, at that relevant time.

[30]It is part of a picture of a complex chronology where the claimant says that by that time she had already made what she relies as protected disclosures. Because of that, we do not see these documents as being as likely to be crucial as at first they might appear. The claimant was not aware of these documents previously. The respondent is going to need primary evidence from Mrs Dauncey of some detail in order to rely on them. The claimant may need to cross examine about them. We do not think there is a very good reason why these documents could not, with a reasonable and diligent investigation, have been located before.

[31]So, on balance, we have decided to refuse this application because they do not seem likely to be so important to the decision making process that they outweigh the inconvenience to the claimant in having to deal with them when the explanation for them not previously being available is unsatisfactory. Document 23, page 1303:

[32]The next document is the email at number 23, page 1303. It is an email from Mr Martin to Mrs Dauncey. This seems to be connected with detriment 9. Of the documents that have been admitted by consent, one - the Excel spreadsheet – was sent by an email that is already in the bundle (page 391). This email at proposed page 1303 is connected with that at page 391 because they are exchanges about the spreadsheet about Head of Technologies responsibilities. There was no specific criticism of this document by the claimant in her submissions. We think it produces a more complete picture. It probably does not mean significant amount of time will need to be dealt with it. So, on balance, that one should be admitted. Document 25: page 1306:

[33]Document 25, page 1306, the Microsoft Teams chat. We refuse permission to admit this.

[34]There is some reference in a document already in the bundle to the fact of that chat having taken place. It may be something that the claimant wishes to cross examine about but it does not appear to be a document of any particular moment. Mrs Dauncey’s primary account of the call is already in her witness statement and that is the most important evidence on this point. The respondent is limited to evidence previously relied on in relation to this call. Document 26, page 1307:

[35]We think this should be admitted. It is a request from Mrs Dauncey for a call concerning the claimant’s suggestion that she should to move to Mr Carlos’ team.

[36]We think it directly links with detriment 6. The content itself is not apparently contentious. It pins a conversation to a date. At this stage it is difficult to see how much significance that is likely to have but it may well be of assistance and potentially necessary. We do not see that is something that is going to take up too much time. Documents 32 to 39

[37]The we get to the grievance interview notes. They were obviously discoverable. The claimant has seen the grievance interview notes previously because they were attached to the grievance outcome.

[38]There are also the Speak Up investigation meeting notes. Again, these were obviously discoverable. Both sets of notes were not only obviously discoverable but hard to overlook when doing a reasonable and proportionate search for relevant documents.

[39]The claimant’s particular objection to the Speak Up investigating meeting notes is that, if they were admitted, she would have to consider whether to deal with them and how to cross examine on them if necessary when she argues they are not in fact relevant to the issues in the case since the investigation happened after her dismissal. They are an investigation into a communication of information that the claimant says was a protected disclosure. Part of the prejudice to the claimant is the distraction unexpected late documents present to orderly preparation.

[40]We have not been taken to anything specific that he respondent wants to rely on in the notes that would affect an issue. For example something which would have been known to the claimant at the time she was making the communications in a way that affected the reasonableness of her professed belief at the time. It has not been explained to us that these documents are likely to be necessary for us fairly to decide the question of whether, at the time the claimant communicated particular information, she reasonably believed that to indicate wrongdoing. And that, as the claimant says, is actually a key issue in relation to the disclosures.

[41]As to the grievance investigation notes, we think that, yes, they were discoverable, but in terms of reliance within these proceedings the respondent is able to rely upon the outcome and the report. Admitting all of those supporting pages now means that the claimant suffers some prejudice in her preparation time; there is a risk of the hearing having to accommodate that preparation and potentially there being further cross examination. It should be the case that relevant extracts from the investigation notes are in the outcome. There is no sufficient explanation the failure to produce any of these notes at the proper time.

[42]So, in both cases, we do not exercise discretion on favour of admitting those documents. Preliminary matters 2: additional documents disclosed during the hearing

[43]In addition to the above decision, there was one further document that was disclosed on Day 5 (within the original hearing session). This was not put in evidence. It was disclosed to the claimant when it came to the attention of counsel pursuant to the respondent’s ongoing disclosure obligation. Neither party applied for it to be admitted and it has not gone in evidence.

[44]The claimant had also submitted, during the hiatus between hearing sessions, an extract from government website about Telecommunications Act information. That was not relevant to the decision that we had to make. It would have been new evidence. But, in any event, it was dated after the relevant period and we have paid no regard to that. Preliminary matters 3: Claimant’s application to amend the claim and List of Issues36. On Day 6 of the hearing, the first day of the resumed session, the claimant applied for permission to amend the list of issues and her claim to seek to rely upon more information she said she had provided to Mrs Dauncey on 16 April 2021 than had previously been relied on in the list of issues. In the list of issues it is said that on 16 April 2021 Miss Ghosh asked Mrs Dauncey whether there was discrimination on grounds of “the TUPEs”; this was said to be a communication that both amounted to protected disclosure under the Employment Rights Act 1996 (hereafter the ERA) and to a protected act under the Equality Act 2010 (hereafter the EQA).

37. Miss Ghosh now says that, on the same occasion, she should be regarded as having made an allegation that she had been treated less favourably in relation to three male comparators by not having been given a pay rise although she does not say that she expressly alleged that the difference was because of sex. She says that a statement to the effect that she had not been given a pay rise when three others were given a pay rise –when all of those other were male - should be presumed to be an allegation that she had been disadvantaged because of her sex or had not received equal pay contrary to the sex equality clause.

[45]The application arose in the following way. We had (in the normal way) heard the respondent’s submissions including on whether there were protected disclosures or protected acts on 16 April 2021 before the claimant started her closing submissions. Judge George reminded her that she was constrained to argue the case as it was set out in the list of issues because that was how the case had been prepared. We had read her additional written submissions in response to those of Mr Dennis and we were concerned that several pages of them appeared to be arguing a case which was not in the list of issues. Judge George made clear to her that the tribunal was not going to read into List of Issues paragraph 5.1 words which were not there.

[46]The claimant said that her evidence about what had happened on 16 April 2021 was that the conversation included the discussion about the impact of TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006), the Solution Architect’s job grade and the annual salary review. She referred to paragraphs 13 to 15 on page 76. This is part of a document dated 16 November 2021, sent as a reply to an order to provide further information (see Employment Judge Hawksworth’s account of the procedural history at page 99). The claimant asked for those responses to be treated as an application to amend the claim. That application had been allowed in full by Employment Judge Bedeau

[47]The claimant ought reasonably to have realised if the victimisation claim she wished to argue went beyond the scope set out in the List of Issues that starts at page 135. That list had been the subject of revision and considerable correspondence before it was finalised so it is clear that she understood at the preliminary stage that it was important for it to accurately reflect the case she wanted to pursue. Judge George explained to the claimant before her oral submissions that if she wished to argue a different case she needed to apply to amend the list of issues and, potentially, her claim. That prompted her to do so.

[48]We heard argument against the application to amend from the respondent and made a decision rejecting the application weighing the balance of prejudice to the claimant in not being able to run the full argument that she now explained she wished to run against the prejudice to the respondent should the change be permitted at this late stage.

[49]The claimant did not appear to appreciate that she was changing anything because she referred to paragraphs 13, 14 and 15 of her application to amend and stated that that had been permitted as a whole. We read paragraphs 13 to 15 (page 76) with care. Although paragraphs 13 & 14 set out the information the claimant states she had, it is only in paragraph 15 that she gave an account of what she had actually told Mrs Dauncey on 16 April 2021: “the issue of discrimination with TUPE salaries” and “discrimination against RUPEs as it would not be fair”.

[50]On a fair reading, this refers to a complaint about lack of parity of those directly recruited by Ericsson with those transferred into employment by Ericsson on existing terms and not to lack of parity as between men and women. She did not in that application to amend say that in the conversation she had repeated to Mrs Dauncey all of the information that she had learned (as set out in paragraph 13 and 14).

[51]Furthermore, paragraph 3 on page 66 is where the details of this complaint are found in the details of the additional claims in Case No: 3320682/2021 – the second ET1 - which was where it originated. It was phrased in the following terms: “The claimant then mentioned that it would be inappropriate to discriminate people (sic) in the organisation against the TUPEs and asked JD whether there was such discrimination versus the TUPEs.”

[52]The basis of the protected disclosure complaint and the victimisation complaint is this conversation. The victimisation complaint has always been that the protected act was an allegation of discrimination on grounds of compliance with TUPE. There was no explanation from the claimant as to why she had not included from the start the details she later wished to rely on. We consider it to be a different kind of case because it's based on a different part of the alleged communication. Given that the pertinent part was not in the original claim form or the application to amend it is at least open to question whether the claimant will be able to show that she said the additional words. More to the point, it is not a situation in which a complaint which is apparent on the face of the claim form has been omitted through oversight from the list of issues.

[53]Despite several attempts to do so, we were still unable to get a clear explanation from the claimant about exactly what she said was communicated on the occasion in question. Attempts to clarify her account of the conversation led to her eliding her explanation about what she was told before the meeting with what she said at the meeting as well as with what is referred to in Mrs Dauncey’s grievance interview and correspondence. To be protected she needs to be clear about what was done or said on the occasion relied on.

[54]The claimant has had opportunities over a long period of time to say if the list of issues was wrong and needed correcting. Mr Dennis took us to the case management orders of the 12 September 2022 (page 102 at page 115). It is apparent that there were competing lists of issues and, in paragraph 56, we see the decision of Judge Hawksworth to record her own list of issues which then follows at page 115. In that first draft list of issues (page 118) List of Issues 5.1 appears in exactly the same form as it was finalised. The List of Issues was the subject of correspondence. On 9 December 2022 Judge Hawksworth ruled on outstanding disputes and made a number of amendments (page 126 at 143). At paragraph 17 (page 128) she directed that the parties must write within 14 days with any further challenge otherwise the list would be treated as final.

[55]At no point prior to her closing submissions has the claimant sought to challenge the way her victimisation complaint was represented in the List of Issues. It is worth repeating that the reason it is not in the list of issues is because these factual details had not previously been alleged.

[56]We have revisited our notes of the claimant’s cross examination of Mrs Dauncey. It was not suggested to her that any statements to the effect that the claimant did not receive a benefit that her male colleagues did receive were made on 16 April 2021. As this is the case the claimant wishes to add, it would prejudice the respondent were that to be permitted and the only way to mitigate the prejudice would be to recall Mrs Dauncey. Furthermore the claimant did not put those specific words in her witness statement. There is clear prejudice both to the respondent and in tribunal time in introducing a claim at this late stage that would require an adjournment for further evidence to be called. The respondent’s closing submission would need to be revisited.

[57]Given that prejudice to the respondent, the likely delay to concluding the hearing and the fact that this is not a situation where the claimant has relied all along on a particular factual basis that has been inadvertently missed off the List of Issues, as well as the failure to take the opportunity previously given to correct the List of Issues we think it would be not in the interest of justice to permit the amendment now. There is more prejudice to the respondent in permitting the amendment then there is to the claimant in refusing the application. The Issues

[58]The issues therefore remain as set out in the List of Issues at page 135 with its Appendix; they were sent to the parties on 17 December 2022. That Appendix itself cross-refers to particular paragraphs in pages 69 and 70 of the hearing file which is part of the claimant’s successful application to amend.

[59]We did not need to decide the first item in the list of issues concerning time limits. That potential point had been referred to by Judge Bedeau at an earlier stage. It was agreed that it was no longer relevant and we concur with that view.

[60]During the Employment Tribunal’s questions in clarification to Miss Ghosh, she identified where in her statement evidence of particular alleged protected disclosures could be found. That led the Employment Judge to produce a table setting out the revised dates for those alleged protected disclosures crossreferred to paragraphs in the claimant’s witness statement and to associated documents, said by her to be relevant. When we set out our conclusions on the protected disclosures, we will take them in chronological order rather than in the List of Issue order. The Table of Disclosures is appended to these written reasons for ease of reference because it amends some of the dates of alleged disclosures. Findings of fact

[61]We make our findings of fact on the balance of probabilities talking into account all of the evidence, both documentary and oral, which was admitted at the hearing. We do not set out in this judgment and reasons all of the evidence which we heard but only our principal findings of fact, those necessary to enable us to reach conclusions the remaining issues. Where it was necessary to resolve conflicting factual accounts, we have done so by making a judgment about the credibility or otherwise of the witnesses we have heard based on their overall consistency and the consistency of accounts given on different occasions when set against contemporaneous documents where those exist.

[62]The claimant’s employment as the Head of Technology started on 4 January 2021. She was Job Grade 7 and her Line Manager was Mrs Jo Dauncey. She was home working only throughout this employment because it was during the pandemic period.

[63]Later that month, the claimant was nominated by Mrs Dauncey for a leadership course and she argues that this fact and the later confirmation of her place meant that Mrs Dauncey had no genuine concerns about her performance. We will come to the confirmation in April where it is dealt with chronologically.

[64]The first alleged detriment relied on by the claimant is an allegation that Mrs Dauncey failed to send any letter of introduction introducing the claimant to the customers. We do note that the customers appear to have been told that the previous incumbent Head of Technology was leaving. There was a hiatus before a permanent appointment was made to that position and the claimant was cross examined about her expectations in respect of this. She said that her first meeting with the previous incumbent (who gave her a handover) had been in the second week in January and that, by the end of January, she thought, or would expect, that a letter of introduction should have been sent.

[65]In her closing submission the claimant seemed to say that the allegation was that she started to raise serious issues around mid-February 2021 and that her introduction after initial onboarding was not pursued by any members of the respondent. In reality, if there was a culpable failure by the respondent, for example, either by Mrs Dauncey or by some other senior manager, it was something that should have been done by the end of January 2021. There is no reason to think that it was influenced by anything the claimant may have said given that she relies on communications all of which post-date that period.

[66]The second allegation of detriment, as originally worded, is said to date from late February. That is an allegation that Mrs Dauncey had discussed options to exit the claimant with HR without informing the claimant. In her skeleton submission at page 73 it is clear that she is in fact basing this allegation upon the admitted approach by Mrs Dauncey to Daniel Hollinger of HR on 10 March 2021 and, therefore, this allegation has changed.

[67]There was a request by EE/BT, a valued customer of Ericsson for a Gap Analysis in relation to anticipated legislative changes to be carried out. Up to this point, Mrs Dauncey had not raised any performance or conduct concerns directly with the claimant.

[68]During the hearing, there was regular reference to the fact of (Security) Bill 2020 (now the Telecommunications (Security) Act 2021). Neither party has taken us to provisions of Bill itself let alone to any discussion papers or draft that date from February 2021, when the request for a Gap Analysis was made.

[69]Mrs Dauncey explains the background to the Bill (JD: para.8). We accept that it was designed to protect the UK from hostile cyber activity by state actors or criminals and provided the government with national security powers to issue direction to public telecommunications providers in order to manage the risk of high-risk vendors.

[70]EE is a long-standing and valued and significant customer of Ericsson (JD: para.20). So, in this scenario, the telecommunications provider is EE, and, as Mrs Dauncey says (JD: para.10), “These operators sub-contract some of their operations to Ericsson, but that does not make Ericsson legally responsible to comply with the provisions of the Bill. That liability remains solely with the operator.”

[71]The vendor in this scenario is Ericsson but there may be other vendors, such as Huawei or Nokia, whose equipment EE was also using in their estate.

[72]It was well canvassed in the press that Huawei was originally going to have a role in rolling out 5G in the UK. Concerns were expressed about Huawei’s involvement in key infrastructure because the company was part owned by the Chinese state and because of reporting obligations to the Chinese government. The claimant does not say that that is the same situation with Ericsson, which is a Swedish based company. However, she said that Ericsson’s Indian company accesses the UK network from outside the UK and outside the EU.

[73]At best, a generous interpretation of what she is saying is that there might be perceived risks to the UK national interests as a result of Ericsson providing services to UK telecommunications companies when those services are part provided from India. She has not expressed that risk in those dispassionate terms and our observation about the way she describes risk is that at times her views appear, objectively, to be alarmist and not evidence based. There is simply no parallel between a risk to national interest arising from Huawei being part owned or obliged to provide information to the government of another nation state whose interests may not be aligned with those of the UK and Ericsson having business interests in India which do not, so far as we have been told, include equivalent reporting obligations to the government. We accept that at the time the telecommunications security requirements, or TSR, were a hot topic because there were potentially big financial implications for those caught out. It was for that reason that Ericsson and its customers were working together to ensure that they were ready. This led to the request for a gap analysis by EE to identify where action was needed to ensure compliance when the Act came into force. Mrs Dauncey informed the team about it on 18 February and page 326 is Mrs Dauncey’s original email as recirculated to the team by Hemchand Ranganathan, including, in bold, comments that he had made on her text.

[74]If the claimant is arguing that any information communicated in relation to the TSR was a protected disclosure because it tended to show breach of the legal obligation or criminality, either because the requirements of the forthcoming Telecommunications (Security) Bill or Act would be breached, or because a contractual obligation between Ericsson and EE would fail to provide a service that complied with the forthcoming legislation, then those would not be reasonable positions to hold, in our view. Indeed, the latter point is not one that the claimant has articulated clearly.

[75]The purpose of the activity that Mrs Dauncey informed the team about on 18 February, was to ensure that EE were ready for the new law when it came in; Ericsson were working to help them to be ready. “[Jo Dauncey] We have had a request from EE to review and assess the TSR as per attached in terms of RAN and transmission. Can we please have a catch up session on what you have been working on for the TSR […] I know MBNL was the next account you were looking at – how is that progressing and can we utilize some of the information for EE? [Hemchand Raghunathan] I am aware of this requirement and as part of our pre-sales engagement with EE we have been engaging in getting the projects lined up for TSRs with both EE and MBNL. The original requirement was submitted into Ruby to do a complete analysis and provide recommendations for both RAN and transmission. However considering the financial year end closure in EE they did not have sufficient budgets to do a full blown analysis. I asked the EE security team to cancel that work request and change the scope with a new work request through Hardy. EE security team are expect that these issues will be resolved by April when they will get budgets allocated for TSR in the new financial year. At this point they have some limited budget (circa £50-£70K) and the security team are keen to utilise the budget and make some progress. To this effect they want to do the compliance gap analysis and are ONLY looking for participants from RAN and Transmission teams to provide inputs in workshops etc. There is no obligation on Ericsson to deliver any outcome apart from providing resources who could participate in the workshops. My recommendation is to leverage some of our good resources and support EE for this project and as part of the ASO for 2021 we will have an agreed approach with EE for TSR. This is one of the targeted Add on Sales opportunity we are pursuing this year with EE.”

[76]We see no reason whatsoever for the claimant’s apparent suspicion that Hemchand Ranganathan’s explanation was untrue. In broad terms, that explanation was that, first, there had been an original request for a complete analysis placed through Ruby. Next, the request had been scaled down so Mr Ranganathan had asked for there to be a new work request through Hardy. He also explained that EE have a limited budget at that time and wanted to spend it before the end of the financial year and added, “There is no obligation on Ericsson to deliver any outcome apart from providing resources who could participate in the workshops.”

[77]All of that makes clear what is being asked, what he understands the scope to be, why it is to be done by the end of the financial year and why he has recommended the work be moved from Ruby to Hardy. We note that the scope of the task to be carried out was later the subject of some further discussion.

[78]Ruby and Hardy are the titles given to different contracts. Ruby is a contract with EE and Hardy is a different contract with MBNL. Mrs Dauncey explained that, when the request was for a full-blown analysis, that would normally go through the delivery contract (Ruby) but, when the scope was more limited, Hardy was used so that the OSS Team would lead on the Gap Analysis.

[79]A complexity is that BT and EE were separate corporate entities and then BT bought out EE so they are sometimes referred to interchangeably and sometimes by both names. We will refer to EE in these reasons.

[80]The Mobile Broadband Network Limited, or MBNL, is a joint venture company between EE and 3UK and we can see that, in addition to the Gap Analysis for EE, work was proposed with MBNL on the TSR. That is all consistent with this being a hot topic that would lead to a lot of work for a number of customers.

[81]Ms Ghosh repeatedly argued that Mr Ranganathan was wanting to capture a large contract and a large customer into Hardy. Even some six weeks into her position as Head of Technology, she should have been aware that the reality was that, whether you call them contracts or projects, the benefits or profits of Ruby and Hardy always go to Ericsson. An individual might be working on tasks to deliver obligations under Ruby as well as on tasks to deliver obligations under Hardy. Nothing she has said either in this hearing or at the time is information that suggests an ulterior motive on the part of Mr Ranganathan or reason that it would benefit him personally if the work was contracted to go through one workstream rather than another. No one could reasonably think that putting a particular task for an established customer through one contractual vehicle rather than another was indicative of wrongdoing when the actions were so transparent and the reason were given. It is simply not objectively rational to take such a position.

[82]We do take into account paragraphs 29 to 31 of the claimant’s witness statement where she states that she sensed it was not normal. However, we can see no rational basis for her statement that there would be some major future business potential for Hardy when it was an established contract with MBNL (a joint venture with EE) in any event. The whole TSR was producing a large future business potential. At best, she is alleging that Mr Ranganathan was ambitious for valuable business to be allocated to an area for which he was responsible. That sort of ambition involves no wrongdoing or failure of a kind envisaged by s.43B(1)(a) or (b) ERA whatever. Neither could it reasonably be viewed as such.

[83]We accept that the reason for the determination to have the workshops held by the end of March 2021 was that EE had money in a budget which could conveniently be used for this purpose but it had to be used by the end of the financial year. We will come to what the claimant thought, or asserted, the reason was later. As we have already said, the budgetary explanation was made clear from the start by Mr Ranganathan.

[84]A number of the alleged communications that the claimant says amount to protected disclosures involve, or at least are said to involve, comments about the Gap Analysis task and the TSR. The claimant appears to be saying that conducting a Gap Analysis to highlight to EE any ways in which the network provision would fall short of the anticipated obligation, would open Ericsson up to some form of risk.

[85]The first sets of alleged protected disclosures are said to have been made on 19 February and we deal with them in the following chronological order: PD 2 before PD 1 then PD 3, PD 5 and PD 4.

[86]The claimant has produced a number of typed documents which she says were contemporaneous notes (pages 179 to 185). The burden is on her to show that she made the statements relied on as relevant communications of information. The reliability and authenticity of those typed notes are challenged by the respondent.

[87]It has been a little bit difficult to trace her allegations through to the List of Issues from her application to amend, which is cross referred to in the List of Issues. The purpose of the table (see Appendix to these reasons) was to address the problem that the claimant’s witness statement did not match up with the allegations as set out the List of Issues.

[88]We have come to the conclusion that the typed notes relied on by the claimant were not made, and certainly were not typed up, contemporaneously. They were disclosed in July 2023 but are said to relate to dates between February and May 2021. An alternative version of one alleged minute (page 179) was produced bearing a different date for the meeting to that on the document as first disclosed; this followed disclosure by the respondent of a document which showed that the meeting in question could not have taken place on the date borne by the first proposed set of minutes. Originally, the claimant had produced a minute bearing the date of the day of the week on which fortnightly meetings between her and Mrs Dauncey commonly took place. The respondent then disclosed a document that proves that, in that particular week, the regular meeting had taken place on a different day. The claimant then disclosed alleged minutes bearing the date when the meeting had in fact taken place.

[89]We found the claimant’s explanation for producing another document confusing and unconvincing. In any event, on her own account, she typed the minutes of notes of the meetings up sometime after the event from handwritten documents which she says she no longer has. We rejected an application for specific disclosure of the handwritten notes at the outset of the hearing, in part of the basis that the documents could not be shown to exist.

[90]We think that the documents that have been put forward by the claimant as minutes of these meetings are probably affected by them having been written at a time when she believed that she had been dismissed as a whistleblower. We think that they were probably made after the commencement of proceedings. In those circumstances we think it is not right to given them any more weight than we do to the claimant’s witness statement itself. In that sense, they are not corroborative, contemporaneous documents.

[91]Protected disclosures 1 to 5 are said to have been made:91.1 First, on a joint call on 19 February 2021 that the clamant refers to in her paragraph 32.

91.2 Then, later the same day, in a one-to-one call with Mrs Dauncey. This call is the subject of an alleged contemporaneous note.

91.3 There are then PD3 and 5 which are said to have been made first at a one-to-one call with Mrs Dauncey. Mrs Dauncey produced notes of that call (page 330). On the claimant’s account, this one-to-one call took place after she herself had had a conversation with a Daniel Foster which caused her to have some concerns about the circumstances in which pressure was being placed on the team to complete the task by the end of March, and

91.4 There is an alleged disclosure the same day that the claimant refers to in her paragraph 39.

91.5 Finally in February, there is PD4. The claimant, in her paragraph 42, gives an account of her call with Mrs Dauncey and the service architects that took place on 26 February 2021.

[92]In contradiction to the claimant’s account, Mrs Dauncey’s recollection of these conversations is there was nothing in what the claimant said about the task that would have conveyed alarm about anything other than resources and the timescale within which the team were being required to ask. We accept that. In part we prefer Mrs Dauncey’s evidence about these occasions because we do not give weight to the claimant’s alleged notes.

[93]In addition, we also note some operational emails from the claimant at pages 345 to 348 which are all worded consistent with someone who is progressing the task and do not include words of concern or of misgivings. Those include those emails that are sent to Mrs Dauncey. Reservations expressed are about uncertain scope of the task, about resources. The emails not allege wrongdoing, failures or press an alarm bell about risk. We do not consider that the claimant would have failed to put in writing what she was saying had she been expressing concerns in such a different way verbally.

[94]In the claimant’s skeleton submission at page 27 she sets out 10 emails that she says she sent highlighting concerns regarding the EE TSR Gap Analysis and states they “are all part of the disclosures made”. Some are referred to above, namely pages 345 to 348. We have looked at the others but, likewise, they raised concerns about the uncertain scope of the task. For example, page 333 where the claimant stated that “there is no need to give any compliance with or without evidence” which seems to muddy the waters about what the team are being asked to provide. There had been some back and forth on the scope of the task but Mrs Dauncey’s evidence was that it was very clear that the respondent was not going to provide evidence on whether Ericsson was compliant with the TRS requirements (so far as they were understood at that time) and she considered it to be unhelpful for the claimant to keep repeating that.

[95]We also found that the claimant, as a witness, did not answer questions directly on all occasions. Attempts to pin her down to specifics tended to lead her to respond by explaining at length matters that she no doubt considers important but which did not provide the specificity and focus the tribunal needed about what was said on particular occasions. In addition, she did not always focus on the time that she was being asked questions about. On the other hand, Mrs Dauncey, whilst appearing at times to struggle with the relevance of the questions she was asked, did her best to answer them directly.

[96]We also, when making a decision about what the claimant said in these alleged earlier communications in February, take into account that the claimant states that PD6 and 7 were made by emails that are at pages 347 and 358. Taking page 347 first, this email does not include the information that the claimant indicated in the List of Issues was communicated by it. It is a response by her to a request that workshops be completed by 15 March when she had originally proposed they be completed by 18 March. In her email the claimant agrees that the workshops can be completed by 15 March she does say that the particular individual does not have capacity to support the activity by himself and states that the request was wrongly prioritised. This reads to us as a perfectly normal exchange about the practicality of delivering the work. She did not say that she thought that this alleged wrong prioritisation was been done to maximise future sales (see List of Issues Appendix – 1; para.1.2.1 page 69), which would not have been improper in any event. There is no reference to exposing sensitive issues or that there was anything abnormal about the proposals.

[97]Similarly, in relation to alleged disclosure 7 at page 358, the claimant wrote in this email about the challenges for the team to start the TSR EE workshop by that Friday and said that they were trying their best. She did say again that she thought it was a wrong commitment but did not explain why she says that at all. The most that you might read into this email is that the claimant was saying that it was wrong because the team were struggling to meet the deadlines. She complained about the OSS Team. She simply did not, in this email, say what the List of Issues alleged was going to be demonstrated by it. Furthermore, she was still positive about completing the task and that is contrary to the position that she now claims.

[98]We can accept that on 25 February, following a call with Ravi, the claimant flagged to Mrs Dauncey that there was a mismatch between the Front Door Request (or FDR) and the changed scope of the task. The original FDR is at page 313. Page 315 of the PDR shows that it was authored by Ravi and sponsored by other managers or a director at EE. It appears that there may not have been a reduced scope FDR when the activity was moved from Ruby to Hardy. It may not have moved from being a review to approved before the work started. This cannot reasonably justify the description the claimant gives it of being “dodgy” when the reasons for haste had been explained. She must have seen the FDR by the time she was talking about it in mid-February 2021 and she must have known that it is simply the paperwork which formally initiates a request for work to be done. A mismatch between what is asked for in the first instance and a change of scope does not make the FDR “dodgy” and we do not accept that the claimant said then what she now says in her paragraph 37.

[99]Had she done so then that would have been in stark contrast with the limited amount that she relayed in the email that she relies on in her PD 6. She was less than two months into her role; the TRS had the prospect to be a very large topic of work that many customers would require assistance on. It would be understandable to find that a daunting prospect. The need for clarity about what the expectations were to make sure the team could deliver was a reasonable one for the claimant to have and to express. However, that is a far cry from there being grounds to think that the task exposed Ericsson to existential commercial risk or, as the claimant appears at times to have argued before us, expose the United Kingdom to a national security risk.

[100]Our view of the claimant’s communications on 25 and 26 February whether in the group call of the one-to-one calls, is that she probably said no more than she repeated in her 7 March email and did not do so in terms which reasonably conveyed concern about more than resources, timescales and a lack of clarity about the scope of the job; that is partly because she describes 7 March email as an escalation which suggests that she has in mind that she has stated the points before. The most that she said in 7 March email about Ravi is that it was a personal favour to him to get the task completed by March. This falls far short of communicating information about wrongdoing or failure.

[101]In her February oral communications either the claimant did not say that providing compliance with evidence was risky or she had no reasonable basis for thinking that Ericsson was going to provide such evidence because Mrs Dauncey had made clear that evidence was not going to be provided as there was insufficient time to do so(page 331).

[102]In truth, the workshops were a high level, first attempt, to capture the scale of the task that TSR would pose to EE and the claimant had no rational basis to think that that would involve any particular degree of commercial risk to EE.

[103]Turning to 7 March email which is relied on as PD 9 (page 355). It is sent on a Sunday at 8.49 to Juan Carlos Castro, copied to Mrs Dauncey and also to Hemchand Ranganathan. It was sent after the claimant has attended the Friday session with the technical experts at EE and, as we have said, she referred to it as “her escalation”. We understand her to mean that she had mentioned these matters before and received an unsatisfactory response from her perspective and therefore wanted to raise them with somebody else.

[104]The email might reasonably be understood to say the following:104.1 There is a huge volume of work needed to fulfil the EE requirement for a Gap Analysis equivalent to a huge bid document response.

104.2 The timeline is not possible;

104.3 The requirement is not clearly defined.

104.4 The claimant refers to a spreadsheet that she said they had been asked to comment on.

104.5 She then stated: “There is a risk at the company level as anything said in a workshop will be documented as Ericsson’s statement of compliance/non-compliance.”

104.6 She also stated: “It looks like this is a March end personal favour been extended to the contractor of EE […] to have because this is not the formal channel for a huge task of this nature.”

104.7 She continues that there is no formal requirement document with scope and liability received from EE except for the extensive Excel Spreadsheet and she states that she has asked for “a break of the workshop”.

[105]This was the first time she had formalised her concerns; the first time the email suggested any need to pause the work. Otherwise the claimant’s emails all pointed to it being deliverable in the timescale the customers have asked for - albeit challenging.

[106]She seems in this email to say that resource is a problem as is a lack of clarity about what needs to be delivered. She also appears to say that delivery of the workshop will require Ericsson to reveal information which is an unspecified risk to the company and it is a personal favour to the BT contractor. She maybe paraphrasing what she has been told by another. We can accept that she appears to be bothered by the workstream going through Ruby rather than Hardy and that is probably what she refers to when she talks about it being not the formal channel.

[107]It seems to us that the timescale within which the respondent was trying to operate meant that they may have been carrying out work without the FDR being updated. Within this litigation the claimant appears to be stating, firstly that she said she had concerns about the FDR and described it as “dodgy” and that when she was expressing concerns that the FDR was dodgy she seems to be saying that it was underhand, suspect or unreliable for that reason. We do not think that the fact that it had not been updated to reflect a change requirement was a rational basis for her to think it was suspect.

[108]So that is what the email of 7 March might reasonably be regarded as conveying. Our conclusions on whether it amounts to a protected disclosure we will set out in our conclusions section.

[109]As we have indicated, by this point the claimant had attended one session on 5 March with technical experts and she said that she wanted to pause the roll-out on 8 March. We presume from page 348 that the timing of the workshops was to be in the afternoon. That is also confirmed by page 346, and they would have involved participation by those in EGI, Ericsson India. The claimant sent an email the following day, 8 March, at 08.39 (page 358) saying “We will have to cancel the workshop with Ravi.” Mr Williams responded (page 357) saying that was not possible. The claimant in closing submissions took issue with the description of her actions as cancelling the workshop. Whether you say she cancelled it or proposed to cancel it what is written in her email clearly indicated her lack of intention to facilitate the workshops.

[110]We remind ourselves of the emails at page 1285 to 1286 responding to the claimant’s 09.39 statement that the workshop has to be cancelled. Mr Ranganathan tried to set up a meeting (page 1285). The claimant replied that she has escalated it to Mrs Dauncey so then Mr Ranganathan contacts Mrs Dauncey about it, (page 360) and Mrs Dauncey made clear that the commitment needed to be honoured.

[111]We think it is perfectly justifiable to say that the claimant’s actions, either cancelled the workshop or would have meant the workshop did not go ahead. Mrs Dauncey’s criticisms of the claimant’s actions in this respect were entirely justified. In JD: para.36 she refers to it as a turning point in the claimant’s behaviour because it led to the claimant complaining that everyone can go around her to Mrs Dauncey and that she had been disempowered. In Mrs Dauncey’s email she explained why it should go ahead; why the commitment needed to be honoured namely that this was an important client. That was a judgment call that Mrs Dauncey was the right person to make.

[112]The exchange about the costs of the project is also relevant in this regard. See at pages 336 and 338 through to 344. In summary, Mr Williams contacted Mrs Dauncey to ask her to review the situation, see page 340. We can understand the claimant thinking that she should be conservative about the hours quoted for but it is within Mrs Dauncey’s prerogative to decide how the structure of the bill was to be set up when quoting for the work. She was the right person to decide if it was preferable to do so with reference to the hours the respondent actually estimated the work would take and make clear where work will not be within scope as she outlines in her email of 5 March 2021.

[113]In essence, the claimant declined to do as requested by her line manager in her page 339 email saying that she will pack the difference as costs elsewhere as a risk factor. We think it is understandable that Ericsson did not chose to behave that way towards a long-standing customer. Objectively, these are examples of the claimant resisting taking on board her manager’s instruction and not examples of Mrs Dauncey acting to undermine the claimant.

[114]There was then a meeting between the claimant and her line manager on 9 March. In the context of the two matters that we have just outlined it seems plausible that the claimant was vexed that Mr Williams, Mr Ranganathan and Mr Nadeem had gone to Mrs Dauncey to ask her to resolve these two issues and Mrs Dauncey had overruled the claimant’s position. Even if these were matters about which honest people could differ, the claimant was new in the business, Mrs Dauncey was leading the team, she was the right person to decide how the relationship with the customer was best to be supported, and the claimant had no good reason to think she was being undermined by Mrs Dauncey. That context gives credence to Mrs Dauncey’s version of events on 9 March (JD: para.37) and contrasts with the claimant’s account (C: paras. 53 to 57).

[115]The claimant’s version is that her communication in this meeting was the basis of four of her alleged protected disclosures, that is PD 8 to 10, PD 11 and PD 11A. We have to consider whether she mentioned her alleged TSR concerns, excessive of workload affecting morale and wellbeing, diverting business from Ruby to Hardy, Ravi pursuing Gap Analysis tasks before the end of March when he was due to leave, a risk that this would expose sensitive issues for Ericsson and a breach of the No Purchase Order, No work Policy.

[116]So far as we can see PD11 is effectively the same as PD8.

[117]Mrs Dauncey’s account is that no concerns were expressed about alleged unethical practices or security concerns. She was clear in her responses in cross examination that the claimant did not mention a breach of the “No Purchase Order, No Work Policy” on 9 March. It was, however, something that Mrs Dauncey looked into, see page 868.

[118]As explained, we do not consider the typewritten notes by the claimant to be reliable contemporaneous documents. Those are, in this instance, at pages 179 to 180. It was this document which was originally disclosed in a version dated 12 March but a different version of the minute was disclosed after the respondent sent to the claimant documentary evidence which demonstrated that the meeting did not take place on 12 March. This suggests that the claimant was willing to amend a document and put it forward as contemporaneous. We have explained why we have decided those notes are not reliable. That, together with the context, makes Mrs Dauncey’s account of the meeting of 9 March more credible than that of the claimant.

[119]We have previously made findings that the claimant did not make oral communications before 7 March in the terms that she has relied on as protected disclosures and that is another factor to weigh against her in relation to her credibility. We prefer Mrs Dauncey’s account of 9 March 2021.

[120]The claimant did not express the concerns alleged (see para.XX115 above). On the other hand, she did say that Mrs Dauncey needed to trust her and that she, the claimant, had lost all trust in Mrs Dauncey because she had overruled her on the costs and workshop issues. Contrary to the claimant’s version that Mrs Dauncey did not explain what was wrong about the claimant’s actions in cancelling the workshop, we find that Mrs Dauncey tried to have a discussion about why she felt she needed to act as she had.

[121]On 10 March, Mrs Dauncey’s met with Daniel Pollinger in HR to raise concerns about the claimant’s performance and conduct and agreed to monitor her behaviour for reasons that she sets out in JD: para.38. We consider this action to have been justified based on the two matters that had been canvassed with the claimant in the meeting on 9 March. The claimant relies on this act as an alleged detriment (having varied the alleged date from February to 10 March).

[122]On 17 March, Mrs Dauncey exchanged emails with Mr Williams about the lack of PO or Purchase Order for the Gap Analysis. It is the parties’ common position that the normal practice would be No Purchase Order, No Work. However, Mr Williams told Mrs Dauncey that an exception to the normal principal had been requested and that it had been approved by Mr Ranganathan.

[123]Mrs Dauncey’s evidence about this practice, which we accept, was that: “Normally the work or scope of the work would be agreed, costing completed and sent to the customer and the customer then raises a purchase order and we would start work. But there are some circumstances where there is an early start where we are allowed to start without a purchase order.”

[124]We accept that the policy permits for exceptions where Ericsson assesses the balance of risk to be acceptable and this seems to be one such occasion. The claimant argues that it was in fact a rigid policy but we accept Mrs Dauncey’s evidence that it was not. In any event, it is purely an internal policy. The claimant argues in her skeleton submission at page 4 that it exposes the company to significant risk and aligns with broader legal principles of accountability and financial governance. However, that is also a matter of internal governance not legal obligation. The claimant did not give evidence that at the time she had in mind that it was a breach of a legal obligation to follow some governance principles.

[125]The message from Mr Martin dated 22 March 2021 (page 380), is some evidence that people other than Mrs Dauncey were expressing concerns about the claimant at this time.

[126]Around the same time there were communications about what the claimant should be working on at page 379 and 386. The claimant says she was told not to concentrate on the IIAs. However, the MS Teams message from Mrs Dauncey (page 379) did not ask the claimant to refrain from concentrating on the IIAs; that is not what Mrs Dauncey asked of her. The intention was for there to be a meeting and other resources found to whom the IIAs could be delegated. Mrs Dauncey did not say “Do not concentrate on the IIAs” , she said, in effect, “Don’t personally do it” while reminding the claimant that the task is still within her ownership.

[127]The message from the claimant at page 385 on 26 March 2021 says “I gather you have restricted the SAs [the service architects] from supporting any further TSRs beyond EE.” Mrs Dauncey made the position clear at the top of page 385.

[128]These emails read as though the claimant had, to some extent, disengaged from Mrs Dauncey which is consistent with our findings about what was said on 9 March 2021.

[129]Through this, Mrs Dauncey had found out that work was not being done on a particular task and she scheduled a call to take place between the claimant, herself and the Service Architects. That call took place on 26 March which is when the claimant says PD 11 was made. The bottom paragraph of Mrs Dauncey’s email of 26 March 2021 (page 385) evidences why the meeting with the Service Architects was set up.

[130]What the claimant says in her statement about this call (C: para.65) did not evidence the full extent of the alleged protected disclosure. She did not evidence everything that she originally alleged she would put in evidence. This is an example of her providing details in a later account (in this instance in the further information) that amplify and embellish the account from the original claim which was unsustainable.

[131]She put to Mrs Dauncey that this communication had taken place at the time of the coronavirus pandemic and that the importance of the employee’s wellbeing should have been prioritised, but she did not actually put to Mrs Dauncey, nor say, that Covid-19 was ever mentioned during this call. The case she advanced at the hearing on this point illustrates how she tends to draw on reflections after the event when answering questions about what happened on a particular occasion which also made her account unreliable. Although the claimant did discuss resources in the meeting with the Service Architects - and there is a vivid example given of problems with one of the Service Architects having approximately 300 unread emails - the claimant did not say in the call that there was a link between lack of resource and a large amount of work and any effect on the employee’s wellbeing. Nor did she state that any individuals wellbeing was or was likely to be affected.

[132]The claimant and Mrs Dauncey had a one-to-one call following the joint call with the Service Architects also on 26 March 2021. The claimant alleges that PD 13 was made in that one-to-one call. The claimant says that it was also at this meeting that she was told there was a breakdown of trust and confidence, that the HR process would be initiated and that she had a week to find a new job.

[133]Mrs Dauncey’s account is that the call took an hour in length and that during it the claimant was blaming others for the team being unclear about what task they should be focussing on (JD: para.42). Further, in JD: para.44, Mrs Dauncey said that she would be sending the claimant a letter after the call which explained the next steps.

[134]More details of Mrs Dauncey’s account of the meting are in the minutes of her grievance investigation interview (paragraphs 35 and 36 on page 573). She told the investigator that she had stated to the claimant that the relationship between them was not working and it was becoming untenable but she was firm in denying that she had said there was a breakdown of trust and confidence.

[135]Mrs Dauncey then sent an email after the one-to-one (page 387). It appears that there had been a subsequent conversation where the claimant had asked for a week’s grace before a letter was sent to her about next steps during which she might look for redeployment. Mrs Dauncey stated in her page 387 email, “I will withhold the HR letter for a week.”

[136]This account by Mrs Dauncey of the meeting fits with what is objectively evidenced and also with our findings of 9 March 2021. She did think that the relationship is becoming untenable because of the claimant’s resistance to feedback and the claimant’s statement on 9 March that she thought Mrs Dauncey did not trust her and had been effectively working to undermine her. Mrs Dauncey then sought advice from HR on 10 March. She had not raised her concerns directly or formally with Miss Ghosh before 26 March and it seems likely to us that in those circumstances she would have said that she would consult further with HR and then send a letter outlining the next steps. We do not accept that she told the claimant that she had a week to find a new job. It was the claimant who requested that the letter outlining the next steps should not be sent for a week and, in any event, Mrs Dauncey was about to leave for a week’s leave. Mrs Dauncey appears to have been reacting to a situation which had arisen due to the meeting earlier that day and she does not appear to have gone into the meeting on 26 March intending for that to be the outcome.

[137]The claimant may have heard that HR would be involved in some sort of formal next steps, heard the words “the relationship is becoming untenable” and interpreted that as a definitive statement by Mrs Dauncey that there was a breakdown in the relationship but we are satisfied that that is not what Mrs Dauncey said. The claimant may well have said that the Service Architects had failed to meet their required targets because they were overloaded but we are not satisfied that she went on to say that that was affecting their health and wellbeing, and that is consistent with the way it is explained in her later grievance letter.

[138]As to the alleged detriments that are connected with this call, there was no specific purpose or agenda because it was a one-to-one call following up a call with the team that had been called because of the lack of action on particular projects that had been uncovered. One would not expect there to be an agenda in those circumstances.

[139]Mrs Dauncey did not tell the claimant that there was a breakdown in trust and in the relationship and that she, Mrs Dauncey, would send a letter to that effect. She did say that HR would be involved and that she would send a letter to the claimant about what would happen next.

[140]Mrs Dauncey did not say what the next steps would be and it seems to us that the claimant may have inferred that she was at risk of failing her probation. Mrs Dauncey said that because the relationship was very strained due to the claimant’s behaviour. In particular, her behaviour in failing to take on board where she needed to lead, where she was showing signs of being mistrustful of Mrs Dauncey and not accepting Mrs Dauncey’s leadership on how the claimant should handle herself with the client in relation to the costs and the workshop matters. There had been occasions where peers had been unable to resolve matters directly with the claimant and they had escalated it to Mrs Dauncey and these are valid reasons for a line manager to meet to take action.

[141]One of the purposes of the probationary period is to find out if there is a fit between the probationer and the employer and these were objectively valid reasons for thinking that, potentially, there was not a fit.

[142]Mrs Dauncey was away on leave for a week and, during that time, the claimant spoke to Juan Carlos Castro. Page 389 is an email by which the claimant informed Mrs Dauncey that Mr Castro is happy for her to move to his team. It is clear that the claimant was told that he did not have additional head count and Mrs Dauncey then contacted Mr Castro who wrote as we see at page 388. We prefer what he says in that email explaining that the conversation was about nothing more than interest in principle; he had also explained that he did not have additional head count and needed to talk to Mrs Dauncey about a proposed redeployment. This is as one would expect.

[143]The evidence is that head count was a genuine impediment to simply moving teams within the organisation. Although head count could be shared between teams, that did not mean that it could be duplicated so, for example, if Ms Ghosh was allocated to Mr Castro’s team that was not because there were spare heads in that team that could be allocated to resourcing her move. Mrs Dauncey could share the head count represented by Miss Ghosh but she would then lose the post of Head of Technology. The consequence was that Mrs Dauncey and Mr Castro had a conversation and the move to his team did not progress. The entire motivation of Mrs Dauncey was that she would lose the head count for her Head of Technology which she was justifiably unwilling to do. The claimant appears to have reached an unjustified conclusion on the basis of what was known to her in respect of this.

[144]As we alluded to earlier, on 30 April 2021 Mrs Dauncey confirmed the claimant in her nomination for the Ericsson Leadership Core Curriculum. We think it would have been wrong for Mrs Dauncey not to confirm her in that role when steps to address the probation review or other PFP had not formally been taken. It would be premature and potentially close down the prospect of improvement from the claimant. We see the point the claimant is making evidentially but Mrs Dauncey’s explanation for not revoking the nomination we find acceptable and it does not mean that her credibility is damaged when considering her evidence that she had genuinely held concerns about the claimant’s work and her relationship with others.

[145]At some point in April the claimant had a call with Edward Collins who said that he had work to do that she could do but he did not have the head count. It seems to us that that same explanation is the entire reason why that suggested move did not progress.

[146]One allegation is that on 12 April 2021 Mrs Dauncey made Mr Nadeem Job Grade 7. We accept the evidence at page 1261 that demonstrates that Mr Nadeem had been Job Grade 7 prior to that date. He had been the Interim Head of Technology when Mr Martin left. We think that the claimant is mistaken about this and that Mr Nadeem was Job Grade 7 throughout the relevant period.

[147]On 15 April 2021 the claimant was given a spreadsheet, as we see from the exchange of emails at page 391, this was about handover progress. For the claimant to receive this more than three months into her six month probation was far from best practice and any dispute at that stage about whether she had received sufficient handover would be difficult to resolve. However, the allegation in the List of Issues is that the claimant was asked to confirm delivery status on the responsibilities and that is plainly not what she was asked to do by Mrs Dauncey. She was asked to say whether she had received a sufficient handover in those areas. The claimant agreed to highlight the gaps if any. It may be that this was drawn out in anticipation that a performance focus plan was on the horizon but such a plan could not have been fair without such an exercise.

[148]It is also that day when there was an email about an annual pay review (page 393). Mrs Dauncey confirmed that the claimant would not receive such an annual salary review and that is in accordance with the terms of her contract, clause 6, in particular the section at page 224. She was not contractually entitled to an annual salary review in April 2021. We are satisfied that the comparators the claimant relies on did not have pay rises in April that year (see page 1260). It may not be possible to see why the monthly figures for April 2021 are one pence more per calendar month than they had been the previous month but they appear to drop by a penny again in October 2021 in the case of the employee who was still in employment at that time. This is another matter that we think the claimant is mistaken about. It was not a decision by Mrs Dauncey not to award a pay rise or to award one to somebody else. It was a communication to the claimant of the consequence of her contract.

[149]There was a conversation arising out of this the following day (16 April 2021) that is relied on by the claimant as including both the protected disclosure and an alleged protected act under s.27 (2) EQA. She had a MS Teams meeting with Mrs Dauncey and she asked for and was granted permission to record the conversation. The claimant’s account is at C: para.85 and she says that she told Mrs Dauncey about the conversations she had had with those who claimed they had had a salary rise despite recently starting.

[150]We also take note of the grievance investigation notes that start at page 573, in particular at page 578, paragraph 102. It is clear that the claimant did ask why the Service Architects were Job Grade 7 when she was also Job Grade 7. The claimant’s account is that Mrs Dauncey told her she was unable to tell her her salary band because of TUPE. Mrs Dauncey’s account, given fairly shortly after the event through the grievance investigation, is that she said it was not easy to band people due to TUPE and this is more plausible. It does not seem to us to be plausible and we do not understand why TUPE would have meant that Mrs Dauncey could not tell the claimant her own salary band, if she knew it. The claimant’s Job Grade was clearly known. It is also clear from JD: para.60 that the claimant did question whether she was on less favourable terms because of the TUPE status of other employees. We can understand why Mrs Dauncey shut the conversation down, it was developing into an area that she had not anticipated, she knew the conversation was being recorded and she would not have been able to answer questions about confidential salary terms of other employees. There is nothing controversial about Mrs Dauncey shutting the conversation down when it had started with the claimant asking about why she did not have an annual salary review but moved away from that topic. We know that at least two of the others she mentioned did not have an annual salary review either and the claimant must be mistaken about this.

[151]Mrs Dauncey did delete the recording from within MS Teams but we accept her belief was that the claimant would still have access to that recording because it was the claimant who had initiated it. Her reasons for deleting it were confidentiality and the claimant in fact obtained access to the recording by asking for it through the Information Technology Team.

[152]The handover document was then discussed between Mrs Dauncey and the claimant on 23 April 2021. At the end of that Mrs Dauncey told the claimant that the next step was to work on a PFP. The PFP itself is at page 410 to 420.

[153]The claimant criticises Mrs Dauncey for not providing notice of what was to be discussed on this occasion but we wonder what is it that happened on that day that the claimant needed notice of. Part of what happened was expected; the discussion of the handover document was the claimant’s opportunity to explain where she thought her handover had been sufficient and where she thought there were gaps. Part was a notification that in the future there would be a discussion of the PFP (see the emails at page 400).

[154]The claimant was clearly taken aback by being told on 23 April that a PFP was being initiated and would be discussed at a later time. She seems to argue that she should have been pre-warned of that but 23 April was the warning that the PFP was to be introduced. She would have been taken aback had that happened at any time. She had been told on 26 March that there would be further steps taken and that there were behavioural issues of concern to Mrs Dauncey. We do think that more could have been done in writing to explain to the claimant sooner what problems Mrs Dauncey saw in the claimants performance, for example, drawing up the costings and cancelling the workshop.

[155]Mrs Dauncey talks of attempts made to discuss them orally on 9 March and 26 March. However, she confirmed that nothing was set out in writing and it would have been better had she done so.

[156]However, we are satisfied, as we have already said, that Mrs Dauncey had well founded and serious concerns about the claimant’s handling of some of the responsibilities of the role, in particular, in relation to the costs analysis task allocation as was outlined in the MS Teams call on 26 March and also well founded concerns that the claimant mistrusted Mrs Dauncey because of her own steps to mitigate the consequences of the claimant’s actions. Those were the entire reasons why Mrs Dauncey initiated the PFP. The PFP was to be discussed on 26 April. On that day, the claimant informed Mrs Dauncey that she was unwell so Mrs Dauncey agreed to postpone the meeting to discuss it.

[157]The same day the claimant raised an internal grievance. There are two emails dated 26 and 27 April that are at pages 424 and 425. She says that she has been victimised because of using the Speak Up policy but the policy itself she did not use until later the same day. Her explanation of using that terminology was that she was previously using informal channels but that is an exaggeration of what she had done up to that point.

[158]The grievance is relied on within these proceedings as an alleged protected disclosure of information tending to show that health and safety of an individual was likely to be endangered. The claimant stated as follows: “On account of me using the “Speak -Up “ policy which is highly being promoted and driven by the organization I am now being victimized and penalized as a result.( 1. Inadequate resource management due to 3 times increase in workload on account of Hardy impacting negatively on deliverables.2. Inappropriate customer handling on sensitive TSR issues.)”

[159]She says that the workload is impacting negatively on deliverables. She does not include a statement that it is impacting on the wellbeing of individuals and she did not, by this grievance, communicate the information that is relied on in the list of issues.

[160]The same day she lodged a complaint on the central Speak Up channel the details of which are at page 407. Mrs Dauncey, in her paragraph 70, says the first that she was aware the claimant had made a disclosure under the Speak Up policy was after she informed the claimant that she was dismissed on 21 May 2021. The claimant did not challenge that evidence and we accept it. She sought in closing to argue that Ms Lamond, an HR Business Partner, had kept that knowledge from Mrs Dauncey. The only allegation against Ms Lamond in the list of issues is that of not providing assistance in moving or relocating to a different team and, therefore, this is not an allegation which we are required to consider.

[161]On 11 May 2021, Mr Castro emailed Mrs Dauncey following an exchange that he had had with the claimant, see page 443. In his email to Mrs Dauncey he said words to the effect that before mailing the claimant he had removed from his draft words which set out his expectations of the Head of Technology role and added to Mrs Dauncey, “I thought maybe if doing that I would be creating additional complications on the HR ongoing issue.” Mrs Dauncey thanked him for that and said, “hopefully we will have the situation resolved very soon.”

[162]By that she did not discuss confidential issues. Neither is there evidence that Mr Castro’s knowledge, such as can be gleaned from his email, has come from Mrs Dauncey. She denied as much in cross examination. The email itself does not breach HR confidences.

[163]Mrs Dauncey does say in her paragraph 63 that she decided to dismiss the claimant in the week beginning 10 May. Even so, there were at the time more than one ongoing HR issue. There was a grievance which has put the PFP on hold. What Mrs Dauncey said to Mr Castro is capable of more than one possible interpretation. On the other hand, Mrs Dauncey relies on Mr Castor’s email as evidence of problems subsequent to 26 April 2021 and it does show that there is something that he feels the need to raise with Mrs Dauncey about the claimant not meeting certainly what his expectations seem to have been. As evidence, Mr Castro’s mail does not go much beyond that.

[164]Also on 11 May, the claimant emailed Ms Lamond (page 451) and asked to explore moving into Edwards Collins’ or Mr Castro’s team. We have found already that there were reasons why it was not practical to do so. Ms Lamond responds by outlining the vacancy process and saying the claimant may apply for any vacancy she wishes.

[165]Within the grievance process (page 430), the claimant wrote to the proposed investigator and also to Ms Lamond raising concerns about the impartiality of the proposed investigator. On 19 May the claimant wrote to Ms Lamond objecting to her acting as HR Business Partner to both the grievance investigation and the Speak Up channel investigation complaining essentially about the perception of lack of impartiality.

[166]She raised the same concern to Mr Peacock on the same day through the Speak Up channel (page 457 and page 454).

[167]There was a meeting between the claimant and Mrs Dauncey on 21 May 2021 at which the claimant was told of Mrs Dauncey’s decision to summarily dismiss her. Mrs Dauncey’s reasons are set out in paragraphs 63 to 68 of her statement.167.1 She says first, that she made the decision because of apparent inconsistencies in the claimant’s CV that had come to light. She now accepts that she was mistaken and had misunderstood information in a reference provided for the claimant’s application for employment. She did not ask the claimant for clarification of the situation before using that as part of her reason for dismissal and that is a procedural failing. However, the claimant did not have the right not to be unfairly dismissed unless it was for one of the automatic unfair reasons. Even though one might criticise Mrs Dauncey for not checking with the claimant, we do not think it right to draw an adverse inference against Mrs Dauncey about her reasons or motivation for dismissal because of this procedural failing. In particular, this is because her reasoning and her concerns that are expressed have been consistent from a relatively early point and we are certain she did not have any knowledge of anything communicated to the Speak Up channel.

167.2 The next matter is alleged poor behaviour and performance at work as explained in JD: para.67. Mrs Dauncey had already decided to introduce a PFP but explains in her paragraph 67 that the breadth of issues that she and others had raised was such that she did not think a PFP would resolve matters. There are a number of examples set out at Appendix A to the dismissal letter. The claimant did not cross examine Mrs Dauncey on them. It is for the claimant, in this instance, to show that the reason for her dismissal was a protected disclosure given that she does not have two years’ service. She could have done that by seeking to attack the reason put forward by Mrs Dauncey but she did not.

[168]In the dismissal letter, (from page 60) Mrs Dauncey next refers (page 462) to irretrievable breakdown in the working relationship. That is consistent with the claimant’s behaviour in the meetings we have referred to. In particular Mrs Dauncey experienced the claimant talking over her and not taking on board feedback delivered verbally to the claimant. Those were Mrs Dauncey’s entire reasons and they preclude her relying on any communication of information by the claimant.

[169]We accept that the claimant was not given notice of the purpose of the meeting. However, it is hardly a separate detriment to the fact of the dismissal. The respondent had decided to dismiss the claimant regardless of what she said and, in those circumstances, we doubt whether that could be regarded as a separate detriment although, as it will become clear, that is not the reason we conclude that particular complaint is not well-founded. Law applicable to the issues in dispute

[170]Judge George circulated a proposed self-direction on the law applicable to protected disclosures before the end of the first hearing session and invited comment on it by the parties in their submissions. Neither said the proposed self-direction was inaccurate but submissions were made about additional relevant authorities which have been incorporated into the following.

[171]The structure of the protection against detriment and dismissal by reason of protected disclosures provides that a disclosure is protected if it is a qualifying disclosure within the meaning of s.43B ERA and, for the purposes of the present claim, is made by the claimant in one of the circumstances provided for in s.43C ERA.

[172]Section 43B(1), as amended with effect from 25 June 2013, reads as follows, “In this Part a ‘qualifying disclosure’ means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is 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.”

[173]Likely in this context means more probable than not: Kraus v Penna plc

[2004] IRLR 260

– as in the headnote ‘likely’ requires more than a possibility or a risk that an individual might fail to comply with any legal obligation or commit a criminal offence or that health & safety would be endangered.

[174]In Kilraine v London Borough of Wandsworth

[2018] ICR 1850

Sales LJ rejected the view that there was a rigid dichotomy between communication of information and the making of an allegation, as had sometimes been thought; that was not what had been intended by the legislation. As he put it in paragraphs 35 and 36, “35. …In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). … 36. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in [Nurmohammed], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.”

[175]The structure of s.43B(1) therefore means that the tribunal has to ask itself whether the worker subjectively believes that the disclosure of information, if any, is in the public interest and then, separately, whether it is reasonable for the worker to hold that belief. Similarly, we need to ask ourselves whether the worker genuinely believes that the information, if any, tends to show a relevant failure and then whether it is reasonable for them to believe that.

[176]It may have been reasonable for the worker to believe that the factual basis of what was disclosed was true and that it tends to show a relevant failure, even if they were wrong but reasonably mistaken: Darnton v University of Surrey

[2003] IRLR 153

, EAT. The tribunal is not primarily concerned with the truth of the allegations but that may be an important tool in determining whether the worker held a reasonable believe because it is difficult to see how they could reasonably believe that an allegation tends to show a relevant failure if they knew or believed that the factual basis was false. Reasonable belief must be based on the facts as understood by the worker, not as actually found to be the case.

[177]The reference to Nurmohammed is to Chesterton Global Ltd v Nurmohammed [2017] I.R.L.R. 837 CA, where the Court of Appeal gave guidance to the correct approach to the requirement that the Claimant reasonably believed the disclosure to have been made in the public interest at paragraphs 27 to 31 of the judgment. Those paragraphs can be summarized as follows:a. The Tribunal has to ask, first, whether the worker believed, at the time that he or she was making it, that the disclosure was in the public interest and secondly whether, if so, that belief was reasonable.

b. The second element in that exercise requires the Tribunal to recognize that there may be more than one reasonable view as to whether a particular disclosure was in the public interest; and that is perhaps particularly so given that that question is of its nature so broad-textured.

c. The tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker. That does not mean that it is illegitimate for the tribunal to form its own view on that question, as part of its thinking but only that that view is not as such determinative.

d. The necessary belief on the part of the worker is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. That means that a disclosure does not cease to qualify simply because the worker seeks to justify it after the event by reference to specific matters.

e. While the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it.

f. The essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest.

[178]A worker will still be able to avail him or herself of the statutory protection even if he or she was in fact mistaken as to the existence of any criminal offence or legal obligation on which the disclosure was based: Babula v Waltham Forest College

2007 ICR 1026

, CA .

[179]However, ‘Save in obvious cases, if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation. It is not sufficient as here for the employment tribunal to simply lump together a number of complaints, some of which may be culpable but others of which may simply have been references to a checklist of legal requirements or do not amount to disclosure of information tending to show breaches of legal obligations. Unless the employment tribunal undertakes this exercise it is impossible to know which failures or likely failures were regarded as culpable and which attracted the act or omission said to be the detriment suffered.’ Blackbay Ventures Ltd (t/a Chemistree) v Gahir

2014 ICR 747

, EAT.

[180]If the worker has made a protected disclosure then they are protected from detriment and dismissal by s.47B and s.103A of the ERA respectively. So far as is relevant, s.47B provides that: “(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.”

[181]Section 103A, so far as is relevant, provides that: ''An employee who is dismissed shall be regarded … as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure''

[182]This involves a subjective inquiry into the mental processes of the person or persons who took the decision to dismiss. The classic formulation is that of Cairns LJ in Abernethy v Mott Hay and Anderson

[1974] ICR 323

at p. 330 BC: "A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him which cause him to dismiss the employee." The reason for the dismissal is thus not necessarily the same as something which starts in motion a chain of events which leads to dismissal.

[183]The legal burden of proving the principle reason for the dismissal is on the employer although the claimant may bear an evidential burden: See Kuzel v Roche Products Ltd

[2008] IRLR 534

CA at paragraphs 56 to 59 “… There is specific provision requiring the employer to show the reason or principal reason for dismissal. The employer knows better than anyone else in the world why he dismissed the complainant. … I agree that when an employee positively asserts that there was a different and inadmissible reason for his dismissal, he must produce some evidence supporting the positive case, such as making protected disclosures. This does not mean, however, that, in order to succeed in an unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for that different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason. Having heard the evidence of both sides relating to the reason for dismissal it will then be for the ET to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or by reasonable inferences from primary facts established by the evidence or not contested in the evidence. The ET must then decide what was the reason or principal reason for the dismissal of the claimant on the basis that it was for the employer to show what the reason was. If the employer does not show to the satisfaction of the ET that the reason was what he asserted it was, it is open to the ET to find that the reason was what the employee asserted it was. But it is not correct to say, either as a matter of law or logic, that the ET must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee. That may often be the outcome in practice, but it is not necessarily so.”

[184]However, the rule in Kuzel applies only where C has the right not to be unfairly dismissed under s.94 ERA. In the present case the burden is on the claimant of proving that the reason or principle reason for dismissal is that she made a protected disclosure: Ross v Eddie Stobart Ltd (

UKEAT/0068/13

[185]As can be seen from the quotations from the relevant sections, the test of causation is different when one is considering unlawful detriment contrary to s.47B ERA to that applicable to automatically unfair dismissal contrary to s.103A ERA. Section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower: Fecitt v NHS Manchester

[2011] EWCA Civ 1190

, [2012] I.R.L.R. 64 CA. If the claimant has shown some basis for a conclusion that the reason for detrimental treatment to which she has been subjected was a protected disclosure, then it is for the employer to show the ground on which any act or deliberate failure to act was done: s.48(2) ERA and International Petroleum Ltd v Osipov (

UKEAT/0058/17

UKEAT/0229/16

) @ page 115.

[186]In order to find that an act complained of was to the detriment of an employee, the Tribunal must find that, by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work: EHRC Code of Practice on Employment (2011) para 9.8. This was explained in Shamoon v Chief Constable Royal Ulster Constabulary

[2003] ICR 337

to mean that the test should be applied from the point of view of the victim: if their opinion that the treatment was to their detriment was a reasonable one to hold, that ought to suffice, but an unjustified sense of grievance was insufficient for the claimant to have suffered a detriment. Victimisation

[187]Victimisation is defined in s.27 EQA to be where a person(a) (A) subjects

(b) (B) to a detriment because B does a protected act, or A believes that B has done, or may do, a protected act. A protected act is defined in the section which reads, in full: “27 Victimisation (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;

(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4) This section applies only where the person subjected to a detriment is an individual. (5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.”

[188]In arguing that she did a protected act on 16 April 2021, the claimant bases her pleaded claim on a statement that it would be inappropriate to discriminate against people in the organization because of “the TUPEs”.

[189]The then applicable provision of the Race Relations Act 1976 (hereafter the RRA) were considered by the House of Lords in The Chief Constable of West Yorkshire Police v Khan

[2001] UKHL 48

, HL. The wording of the applicable definition has changed somewhat between the RRA and the EQA. However Khan is still of relevance in considering what is meant by the requirement that the act complained of be done “because of” a prohibited act. Lord Nicholls said this, at paragraph 29 of the report, “The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact”

[190]The shifting burden of proof in Section 136 EQA applies to victimisation cases. If we find facts proved from which the tribunal could decide, in the absence of any other explanation, that the respondent acted as alleged and did so because she had done a protected act then we must hold that the contravention occurred unless the respondent provides cogent evidence that their reasons for the act complained of were not to any material extent those of the protected act.

[191]We bear in mind that there is rarely evidence of overt or deliberate discrimination or victimisation. We may need to look at the context to the events to see whether there are appropriate inferences that can be made from the primary facts. We also bear in mind that discrimination and victimisation can be unconscious but that for us to be able to infer that the alleged wrongdoer’s actions were subconsciously motivated by the protected act we must have a sound evidential basis for that inference.

[192]The unlawful motivation, the protected act does not have to be the sole or even the principal cause of the detrimental act complained of, so long as it was a more than trivial part of the respondent’s reasons. Conclusions

[193]We now go on to set out our conclusions on the issues applying the law to the facts we have found. We do not repeat all of the facts as that would add unnecessarily to the length of the judgment but we have them all in mind.

[194]The alleged protected disclosure which is chronologically first, PD 2, is said to have happened on 19 February in a conference call with Mrs Dauncey and others. It was not a protected disclosure. The alleged communication was not made in the way alleged (see paras.91 to 96 above)

[195]The next protected disclosure is PD 1, said to have been made on the same day in a fortnightly catch up call with Mrs Dauncey. In neither of these calls did the claimant say more than that she had concerns about resources and timescale. She has not shown that the communication of information alleged was made. In any event, the claimant could not reasonably believe there was anything criminal or unlawful about supporting a customer to work towards compliance with TSR (see para.74 above) or about allocating the workstream through Hardy rather than Ruby (see para.81 above). The timescale was plainly to enable the customer to make use of available budgets before the year end.

[196]PD 3 is said to have been on 25 February in a call to Mrs Dauncey following a call between the claimant, Mrs Dauncey and Ravi. The claimant did not then say that the FDR was “dodgy”, she may have said that there was a mismatch between the FDR and the present scope of the task. So the claimant has not shown that the communication of information was made as alleged.

[197]In any event, the claimant had no rational basis for saying the FDR was dodgy in the sense of unreliable or suspect. It is mere insinuation which falls short of the need for the communication to show information that there is likely to be criminality or a breach of a legal obligation. Plainly, there is nothing unlawful about changing the scope of the work, EE were just cutting their coat to suit the cloth based on the timescale and the available budget. And, as before, there is no rational basis for saying that putting the work through Hardy was relevant wrongdoing.

[198]PD5 is said to be during the fortnightly call on 25 February and we have found that no concerns were raised in the way the claimant now alleges, so it is not a protected disclosure (see para.100 above among other places).

[199]In her skeleton argument the claimant seeks to elide concerns about national security with wrongdoing and asserts that the company has and had a legal obligation to protect from any possibilities of security leaks which could be misused as substantial part of the UK network was accessible and controlled from India. She did not put evidence in her statement that this was the legal obligation she believed in at the time. It is nebulous and cannot be presumed. Besides, the simple fact is that it is not the case relied on in the pleadings by the claimant.

[200]In her skeleton at page 31 she appears to say that the mere fact that Ericsson’s operation were based in India meant the respondent was in breach of a legal obligation to protect the UK from any possible security leaks. Merely restating that assertion shows how far-fetched it is (see para.73 for a more detailed analysis).

[201]PD4 is said to have been on 26 February in a conference call with the architects referred to in the claimant’s paragraph 42. She may have flagged a mismatch between the Front Door Request or FDR and reduced scope of the task but, on the basis of our findings, the communication was not made in the manner alleged (see paras 100 to 102 above). Communications about challenges posed by the uncertain scope of the task, a large workload and tight deadlines do not amount to a protected disclosure. Even if she had expressed concern that the timescales were being driven to fit Ravi who was leaving, and even if she did say that there was a risk to Ericsson in revealing commercially sensitive information (which is contrary to our findings), we utterly fail to see that this could reasonably be believed by the claimant as Head of Technology to tend to show any relevant failure or criminality. The context that Ericsson and EE were preparing to be compliant in the future with expected legal obligations cannot be ignored. Indeed, the original FDR includes a risk assessment which outlines that the risk to EE of not carrying out the activity was that of future non-compliance. It defied logic for the claimant to say that she, as Head of Technology, reasonably believed information she disclosed tended to show anyone was likely to commit a crime or be in breach of the TSR.

[202]PD6 is the email of 2 March 2021. It does not provide the information the claimant alleged in the list of issues it did provide. It is a perfectly normal exchange about the practicality of delivering the work. The claimant says that the work is being wrongly prioritised but in the context that is an unremarkable statement.

[203]Similarly, the email of 3 March relied on as PD7 refers to challenges for the team and the claimant saying it is a wrong commitment but not why. Even if the claimant had had in mind what she claims, this does not convey those concerns. Even if one views these communications collectively to get a composite sense of what the claimant is saying:203.1 First, they do not say what she claims they have said;

203.2 Second, they do not communicate something which could reasonably be believed to be wrongdoing; and

203.3 Finally, the claimant did not in her witness statement evidence the alleged public interest she now seeks to introduce by her skeleton argument.

[204]We do not repeat our findings about what was in the email of 7 March 2021 (see para.103 to 108 above). Concerns about timescale, lack of resources, the work being unclear, the mismatch between FDR or about the FDR being initiated through one contract and the work being put through another, and this allegation of corporate risk, none of that could reasonably be believed to convey wrongdoing as alleged. We find that this was not a protected disclosure. There was no attempt in evidence to pinpoint the nature of the legal obligation. At best, there is a reference to commercial risk. This does not amount to something which is more likely than not to breach a legal obligation even taking into account that whistleblowing provisions should be interpreted in a facilitative way and not preclude a genuine whistleblower from being protected through technicality. The most that these communications say is that there is commercial risk in revealing information but, overall, suggest that the claimant is most anxious about how the work is to be carried out when there is limited resource to allocate to it.

[205]In relation to the 9 March meeting (para.114 above), we preferred Mrs Dauncey’s account of the meeting. No concerns about alleged unethical practices or security concerns were raised by the claimant on that occasion. The claimant did not mention a breach of the No Purchase Order, No Work policy in the 9 March meeting. The claimant did not refer to employee’s mental wellbeing, so the communications were not made as alleged PDs 8, 10 and 11 were not made as alleged.

[206]In relation to PD 11A, there no mention of the No Purchase Order, No Work policy (para.117 above). In any event, for reasons explained in para.124 above, a statement to that effect only highlights a failure to follow internal policy and not a relevant failure within s.43B(1) ERA.

[207]In relation to PD 12, it is probable that statements were made in this call, the conference call with Mrs Dauncey and others, about challenges with resources. The claimant did not mention the background and Covid-19. There was clearly evidence outlined that some Service Architects had very large amounts of work to deal with but there was no connection made with wellbeing and that is insufficient to have amounted to a communication of information that the health and safety of an individual will more probably than not be endangered. The words “affecting their mental wellbeing” were not said and that connection was not made.

[208]Similarly, in the one-to-one meeting on 26 March between the claimant and Mrs Dauncey, our findings are that the statements were not made in the way alleged and, therefore, what was said about workload did not amount to a protected disclosure.

[209]In relation to the meeting on 16 April, when alleged PD 14 is said to have been made, the claimant did ask whether she has less favourable terms than those whose terms and conditions are governed by TUPE. It would be lawful to comply with TUPE; we do not think that this communication was a communication that tended to show any relevant failure within s.43B(1) ERA. The claimant only had to check with her contract to see that it was lawful for her to not have a salary review so reminding her about her contractual entitlement does not amount to a detriment. The communication about TUPE certainly does not amount to a communication about any relevant wrongdoing and that is not a protected disclosure.

[210]The communication through the Speak Up channel at page 407 does relay what the claimant refers to as the TSR risk issue. Allegations of personal favour to Ravi, the risk of exposing confidential compliance issues to a departing contractor and starting an activity without a purchase a purchase order were covered. The communication however lacks specificity about what the alleged wrongdoing or criminality is said to be. It is a far-fetched allegation which exaggerates any risk and has little rational basis. Any risk is that of commercial risk to Ericsson not of wrongdoing, and a lot of the claimant’s conclusions are entirely unreasonable, given her position, for reasons already explained. We do not consider that she made a protected disclosure by this and, in any event, it is clear that Mrs Dauncey was unaware of it until after the decision to dismiss had been communicated.

[211]The grievance of 26 & 27 April (see para.157 above) is relied in the List of Issues (PD 15) as being a protected disclosure on the alleged basis that it communicated failures in relation to the health & safety of individuals. To see that that is how it is argued within the litigation you have to cross refer the List of Issues Appendix 1 para.15 (page 144) to para.4.1 of the application to amend on page 71. However, our findings on what was included in that grievance are that the claimant did not communicate the information relied on as protected disclosure because there was no reference to the health or wellbeing of the service architects or other individuals.

[212]PD 17 is that by her email of 5 May 2021 (page 430) the claimant raised a concern about the impartiality of the proposed investigator. The wording in PD 17 is taken from that email; the communication was made. Miss Ghosh argues that there is a legal obligation to provide fair practices to prevent any kind of discrimination or unfair practices.

[213]We do not think this was a protected disclosure. The claimant has not evidenced in her witness statement that she believed in the alleged legal obligations she now seeks to rely on. There is therefore no evidence of her genuine and reasonable belief either as to that wrongdoing or as to the public interest of doing so. It is utterly routine that a person might object to an investigator on grounds that they are close to the person complained of. It is not, without more, an allegation of failure to comply with a legal obligation. To the extent that the claimant argues that she communicated a failure to comply with the ACAS Code on grievances, there are potential consequence of not doing so but there is no legally binding obligations to follow that Code. In any event, the claimant has not evidenced the matters that she is required to. She cannot show that she believed this went beyond her own personal interest or that this was a matter of public interest.

[214]The communication that is relied on in relation to PD18 is again about a perceived lack of impartiality by Ms Lombard and that is not a communication of information tending to show a relevant failure or concealment within the scope of s.43B(1) ERA. The claimant is entitled to voice her concerns, she might expect action in an appropriate case, but it is inherently a personal matter so it is simply not a matter of public concern to be covered by a protected disclosure.

[215]For the same reasons, when the same complaint was made on 19 May to Roger Peacock (PD19) or through the Speak Up channel (PD 20), those were not protected disclosures.

[216]We have concluded that none of the communications relied on were protected disclosures.

[217]Alleged PD 14 was also alleged to be a protected act under s.27 EQA. Asking whether there is discrimination between those whose terms and conditions are protected by TUPE and those whose terms and conditions are not, does not raise an allegation of a failure to comply with the EQA. It does not amount to doing something for the purpose of the EQA. There was a late attempt to change the claimant’s case about what was said and what amounted to her protected act. We refused her application to amend both the claim and the List of Issues. A number of the claimant’s arguments in her skeleton submissions address a case which she had not originally brought and did not obtain permission to pursue. She acknowledged in para.4 of page 100 of her submissions that the concerns were not explicitly framed as gender-based but implicitly included considerations of gender; that is insufficient to amount to a protected act under s.27 EQA – even were it part of her claim.

[218]Despite it being made clear to the claimant during the interlocutory stage of the litigation history that this claim did not include a claim of equal pay, she introduced a section analysing various equal pay authorities (see her skeleton submissions page 102 onwards). The points raised simply amount to the proposition that, if there is an equal pay claim, then TUPE is not always a complete material factor defence. There is no equal pay claim in this case and it would require reading into the words used on 16 April 2021 something that simply was not said not there to suggest that she made an allegation of a breach of the EQA on that occasion.

[219]Both the protected disclosure claims and the victimisation claims fail for lack of the relevant protected status. In case we are wrong about that, we turn then to the detriments that the claimant has relied on.

[220]The letters of introduction were not sent but this was a matter of oversight (List of Issues 3.1.1). Furthermore, they should have been sent before any communication about the Gap Analysis and this oversight cannot have been affected by those communications.

[221]Mrs Dauncey did discuss with HR, without informing the claimant, her concerns about the claimant’s performance and conduct on the 10 March (List of Issues 3.1.2). This followed Miss Ghosh’s attempted cancellation of the workshops that Ericsson had contracted to perform for their client, but it was nothing to do with any communication of information and entirely due to Mrs Dauncey’s well founded concerns about whether Miss Ghosh was right for the important role of Head of Technology.

[222]Mrs Dauncey did not set an agenda or give notice of what was to be discussed in the meeting on 26 March (List of Issues 3.1.3) but that is inherent in the nature of the meeting which was an informal catch up. No agenda was needed for such a meeting. The claimant was not disadvantaged and no reasonable employee would consider themselves disadvantaged by that. Therefore, this act was not a detriment. While it is true that the meeting evolved and Mrs Dauncey told the claimant during it that their relationship was becoming untenable and that she would consult with HR about next steps, that was unplanned. The fact that it happened does not mean retrospectively that one can say there ought to have been an agenda.

[223]As to List of Issues 3.1.4.1, Mrs Dauncey did not say that there was a breakdown in trust and she would be sending a letter to HR to that effect. The core facts underpinning that allegation are not made out.

[224]We can take List of Issues 3.1.4.2 and 3.1.5 together because they are effectively the same thing. Mrs Dauncey agreed to pause sending the letter to the claimant to explain the next steps for one week. This was not in itself a disadvantage to the claimant it was done because she requested it. The potential disadvantage is the decision there are performance issues and conduct issues that need to be dealt with formally and the reason for that was entirely Mrs Dauncey’s concern on objectively valid grounds that potentially the claimant was not going to pass her probationary period.

[225]List of Issues 3.1.6: Mrs Dauncey did speak to Mr Castro and did not agree to the proposed move but the entire reason was the impact on Mrs Dauncey’s team and the loss of head count in the key position of Head of Technology if the claimant was to move to Mr Castro’s team. Similarly, Mrs Dauncey said she spoke to Mr Collins (List of Issues 3.1.7)and the entire reason she was unwilling for any suggested move to happen was to do with impact on her head count and nothing to do with any communications of information by the claimant.

[226]List of Issues 3.1.8: Mrs Dauncey did not make Mr Nadeem Job Grade 7, he was already Job Grade 7, that did not happen.

[227]List of Issues 3.1.9: the claimant was asked to comment on the sufficiency of her handover and this was not a disadvantage to her (see para.147 above). She should have had the detailed information about her responsibilities sooner than three months into her probation. However, she was asked to say whether she had had sufficient handover in those areas, not to confirm delivery status of the responsibilities. This is why we say that would not be regarded as a disadvantage by the reasonable employee and the specific allegation was not made out as alleged.

[228]List of Issues 3.1.10: It is not the case that Mrs Dauncey decided not to give the claimant a pay rise. She communicated to the claimant that she was not contractually entitled to a pay rise – a matter evidenced in the written contract. Therefore this action cannot be reasonably regarded as a detriment and has nothing to do with any communication of information.

[229]Mrs Dauncey may well have closed the conversation in the call on 16 April when the claimant took the discussion outside the planned topics but this was not a detriment to the claimant (List of issues 3.1.11 – see our findings in para.150 above). Mrs Dauncey followed the call up with an email and did answer the question she had been unable to answer in the call. Her actions had nothing to do with communication of information but everything to do with the sensitivity of the subject and the fact that the call was being recorded. We do not think that the fact that the access link had been deleted from MS Teams to the recording was a detriment (List of Issues 3.1.12) because the claimant was able to obtain the recording through IT. Furthermore, we are satisfied that the entire reason why it was deleted was the mistaken belief the claimant would still have access to it and a desire that a call including a discussion of confidential matters should not be accessible to anybody else.

[230]In relation to List of Issues 3.1.13, Mrs Dauncey answered the question about the claimant’s salary banding by providing information and comparing the claimant’s salary with the external market data. She did not need to know her salary banding, she already knew it, and salary details are still confidential matters. So we do not think it is a detriment for the claimant not to be given information that she did not specifically ask for, namely her position vis a vis employees who were the subject of TUPE. It is not a detriment for her not to be given confidential information. In any event, the action had nothing to do with any communication of information.

[231]We take List of Issues 3.1.14 and 3.1.15.2 together as they are the same allegation. The claimant did know that the handover document would be discussed on 23 April 2021. This was the occasion on which she was warned about what would happen on a future occasion. As we explain in para.154 above, since the communication by Mrs Dauncey that a PFP would be discussed at a future meeting was the prior notice of that process, it could not reasonably be said that the claimant was disadvantaged.

[232]List of Issues 3.1.15 is the allegation that Miss Ghosh was told that she was being put through a PFP. She was informed of this on 23 April 2021 and for an employee to be told that is, in our view, justifiably regarded as a detriment. However we are satisfied that the reasons why Mrs Dauncey did this were well founded and nothing to do with any communication of information (see our findings at para.156 above).

[233]As far as List of Issues 3.1.16 is concerned, the only incident similar to this that we have heard about in fact happened on around 26 March rather than in the week of 26 April 2021 (see paras.126 to 129 and pages 379 and 386 of the bundle). The exchange was the pre-cursor to the 26 March Service Architect meeting. The core facts underpinning the allegation are not made out because she was not in fact told not to concentrate on the IIAs (see Mrs Dauncey’s email on page 379). Miss Ghosh disengaged from her line manager and did not show appropriate leadership. As a result, work was not done on a particular task. Mrs Dauncey’s actions in relation to this were entirely with a view to ensuring that the Service Architects were appropriately deployed and clear about what they needed to do.

[234]The only incident relating to List of Issues 3.1.17 is covered in the claimant’s paragraphs 114 to 115. However, it does not involve Mrs Dauncey acting behind the claimant’s back because the request to Mr Nadeem was made during a call when the claimant was present. This matter was not specifically put to Mrs Dauncey but so far as the evidence we have seen we find the core facts are not made out because the incident did not happen as alleged.

[235]List of Issues 3.1.18 concerns an email by Ms Lamond at page 450 where she is said not to have assisted the claimant in relation to redeployment. This is the only allegation within the List of Issues made directly against Ms Lamond. We are not sure what help the HR Business Partner could have given here, there were valid reasons to do with head count why the claimant could not move to those teams. Otherwise, the allegation is not evidenced at all by the claimant as it is not referred to in her statement. She did not ask for specific help. She received an answer referring her to the process and, in those circumstances, we do not think that there is anything to criticise Ms Lamond for. In any event, it is clear that her actions were routine and the claimant has not shown any grounds for thinking it was to do with a communication of information.

[236]So far as List of Issues 3.1.19 is concerned we have found that Mrs Dauncey did not discuss confidential HR issues with Mr Carlos (see para.161 above) and the claim of protected disclosure detriment based on that fails for this reason.

[237]We doubt that the allegation at List of Issues 3.1.20 – concerning a failure to give advance notice of the purpose or expected participants of the call at which the claimant was to be summarily dismissed - could reasonably be regarded as a detriment as such. In any event, we found that the claimant made no protected disclosures and also her communications concerning the Gap Analysis play no part in the arrangements for her dismissal.

[238]By List of Issues 3.1.21, the claimant complains of the lost opportunity of a fair hearing of her Speak Up referral, of her grievance and of pursuing a redeployment opportunity. We accept the respondent’s argument that this is not a separate alleged detriment but are alleged consequences of dismissal. They are therefore a potential remedy point. If the claimant were to succeed in her dismissal-based complaint, she could argue that these were potentially matters that flowed from dismissal – to the extent that any loss would be recoverable under the ERA. It is not a separate allegation of an act or omission by the respondent.

[239]We then turn to the dismissal itself. We have set out our findings about the reasons why, on the balance of probabilities, Mrs Dauncey decided to dismiss the claimant in paras. 167 & 168 above. The burden is on the claimant of proving that the reason or principle reason for dismissal is that she made a protected disclosure and she has not succeeded in that. On the contrary, the reasons for the dismissal were the genuine but mistaken believe that the claimant had included inconsistencies in her CV, poor behaviour and performance at work and irretrievable breakdown of the working relationship. These were during the claimant’s probationary period. Those reasons preclude dismissal being for reasons of any communication of information. Had the respondent born the burden of proving a lawful reason for dismissal, we are satisfied that they would have succeeded in doing so.

[240]In any event, such communication as Mrs Dauncey was aware of, did not amount to a protected disclosure or a protected act. The victimisation claim fails because the claimant did not make a protected act.

[241]In her skeleton submissions (pages 63 to 66), the claimant appears to argue that Ms Lamond or some other HR person was instrumental in ensuring that the decision was made to dismiss the claimant. We have found that the communications which the claimant accepted Mrs Dauncey was unaware of were not protected disclosures (PDs 15 to 20). However, the only alleged detriment in the List of Issues for which Ms Lamond was said to be responsible was 3.1.18. The case that Mrs Dauncey was manipulated by Ms Lamond or another person in HR has not been articulated by the claimant before her skeleton submissions nor was it one that was put to Mrs Dauncey. No doubt, had she given notice of such a claim, that might well have influenced the respondent’s choice of witnesses. It is not an argument we are prepared to entertain at this stage.

[242]For all those reasons, the claim fails in its entirety. Employment Judge George Date: …16 October 2024…………….. APPENDIX Case No: 3310155/2021 and 3320682/2021 During questions from Employment Judge George, Miss Ghosh explained where evidence was to be found in her statement and in the hearing file of the occasions on which she alleges she made protected disclosures (here referred to as PDs). This is not necessarily a complete list of all of the relevant evidence she relies upon to show what was communicated on a particular occasion, but it is done to enable the parties and the Tribunal to cross refer between the List of Issues and the claimant’s witness statement, in particular. In some cases, it led to amendment by Miss Ghosh of the dates on which she said that a particular disclosure was made. Some of the page numbers are to documents which are not accepted as authentic by the respondent. PD No: Date (Annex A) Corrected C statement Page No: date (if any) para: 1 Mid-February 2021 19.02.2021 181 2 19.02.2021 32 3 Around 20 – 25.02.2021 37 182 26.02.2021 4. 26.02.2021 26.02.2021 42 5. Late February/early 25.02.2021 39 183 March 2021 6 02.03.2021 44 347 7 03.03.2021 45 351 8 Early March 09.03.2021 52 to 57 179 9 07.03.2021 48 355 10 Mid-March 2021 09.03.2021 52 to 57 17911. Mid-March 2021 09.03.2021 52 to 57 179 11A. Email 17.03.2021 Orally on 9 55 March 2021

12. 23.03.2021 26.03.2021 65

13. 26.03.2021 66 184

14. 16.04.2021 85, 91

15. 26.04.2021 407

16. 26.04.2021 425

17. 05.05.2021 430

18. 17, 18 or 19 May 134 - 136 Page nos. 2021 referred to in those paras.

19. 19.05.2021 135 457

20. 19 or 20 May 2021 454 to 456