Mrs Anita Vaghji v Edge Grove School: 3313445/2019
EMPLOYMENT TRIBUNALS
Case No 3313445/2019
Between
Mrs Anita VaghjiClaimantEdge Grove SchoolRespondent
Before
Employment Judge HenryMs F Babalola (instructed by Solicitor) for claimantMr J Wynne (instructed by Counsel) for respondentDate 3 February 2021
JUDGMENT
The claimant’s application for interim relief is refused.
REASONS
[1]The claimant, by a claim form presented to the tribunal on 31 March 2019, presents complaint for automatic unfair dismissal pursuant to section 103A of the Employment Rights Act 1996 and discrimination on the protected characteristic of race.[2]The claimant commenced employment on 31 August 2017. The effective date of termination was 25 March 2019; the claimant having then been employed 19 months.[3]Pursuant to section 128 of the Employment Rights Act 1996, the claimant makes application for interim relief, pending determination of her complaint. It is the claimant’s complaint that, having made protected disclosures by correspondence presented in defence of disciplinary allegations against her on 7 March 2019, her employment was terminated as a consequence thereof for gross misconduct on 26 March 2019. Case Number: 3313445/2019 2
Evidence
[4]The tribunal had before it a bundle of documents, exhibit R1 and written statements from the claimant and from Mr Singh, - Bursar, on behalf of the respondent. The tribunal was further presented with written submissions on behalf of the claimant which were supplemented by oral submission, the respondent submitted oral submissions in reply.
The facts
[5]The claimant was employed as an early years teacher with the respondent’s school, Edge Grove School Trust Limited, commencing employment on 1 September 2017. The claimant was subject to a 12 month probationary period.[6]On 25 January 2019, a parent of a pupil raised concern with the schools Headmaster, Mr Evans, as to the claimant’s attitude and approach to her son and interactions with them, the parent, and for which the parent raised concerns as to her child being anxious on attending the claimant’s class.[7]Following the Headmaster’s meeting with the parent, he then met with the claimant advising as to the allegations made against her, as to her attitude and treatment towards parents, pupils and colleagues, noting that he considered the allegations to be serious issues relating to the wellbeing of the pupil, further advising that he would need to carry out a full investigation.[8]The Headmaster, later that day, wrote to the claimant advising of the investigation to be carried out and that in view of the allegation the claimant would be suspended pending the conclusion of the investigation, the letter advising: “I am writing to confirm our meeting today during which I informed you that we had received serious allegations regarding your attitude towards and treatment of pupils, their parents and colleagues alike. I advised you that, faced with these allegations and complying with our disciplinary policy, a copy of which has been given to you today, we would need to conduct an investigation into the allegations. Depending upon the outcome of the investigation, it may be necessary to hold a formal disciplinary hearing and you are advised that should the matter proceed to a formal hearing, one possible outcome of the hearing is for your actions to be construed as gross misconduct, in which case your employment might be terminated without notice. As mentioned, this matter is being dealt with under the schools’ disciplinary policy and this provides a clear framework for resolving the matter and details responsibilities of both the school and the employee. Under clause 4.3 of this policy, I advise you that you are, on a non-judgmental basis, being suspended from your post ending the conclusion of the investigation. As stated in the policy, suspension itself is not regarded as a disciplinary action; so your salary will continue to be paid during this period and I offer the support of the schools employer assistance programme...” Case Number: 3313445/2019 3[9]An investigation was then carried out with interviews being conducted with a number of the claimant’s colleagues, for which on 6 February 2019, the claimant was advised of the product of the investigation by which the claimant was advised: “…I now have concluded my investigation into allegations of your behaviour as outlined in my letter to you dated 25 January 2019 and am enclosing copies of the report provided by four members of the pre-pep staff. Given the evidence of these reports, along with the content of our meeting I can only conclude that there is indeed a case to answer over these allegations and I am therefore asking you to attend a formal disciplinary meeting which is on Thursday 14 February 2019. The meeting is being held under the school’s disciplinary policy of which you have already been given a copy. As I have led the investigation process, Martin Sims will be appointed as the hearing manager and I will present the findings from the investigations…”[10]The claimant was then advised of her rights to representation.[11]The disciplinary hearing was subsequently postponed until 7 March 2019, on the claimant requesting a postponement in order that her union representative could attend with her. It was Mr Sims’ evidence that “in view of the seriousness of the allegations and the fact that they could amount to serious misconduct if she was found to have acted in breach of the school’s policy, I thought it important for her to have a suitable representative and agreed to the meeting being postponed”.[12]On 7 March 2019, on convening the disciplinary hearing, the format of the hearing being outlined and the claimant being advised that Mr Sims would consider anything that she wanted to say about the issues and other documents furnished, the claimant then handed in a statement dated 22 February 2019, as further amended on 2 March 2019, and by which document the claimant states she had made protected disclosures, which are here set out in full, as the content is germane to the issues for the tribunal’s determination. “MY STATEMENT 22 February 2019 My name is Anita Vaghji I have worked with children for over 28 years and I have never had such strong allegations made against me. These allegations have left me feeling completely heartbroken. In all my years of working with children I have shown love, care and attention enabling every child to reach their full potential carrying out my duties passionately. I have worked in a variety of settings and have proven to be a strong and valuable asset to every team. I have never witnessed such that I am experiencing here today. I thought that I was being a listening ear to those that needed me and I managed to clear up and re-organise not only my current setting but any that I have been in with high regard. I have always treated staff, parents and children with respect, importance and value as I am fully aware that the children are my primary concern and without them I would not have a job. Case Number: 3313445/2019 4 I have always tried to create an even balance in terms of learning, fun and classroom management with an organised, purposeful and independent atmosphere which enables the children to thrive and flourish. I have always carried out my role and fulfilled my duty as the teacher in the best way possible showing receptiveness. It saddens me that other staff members can: vape in classrooms and within the school premises have long breaks that are extended have mobile phones in class have shared indecent images of themselves with a parent on a mobile device talk about me with no regard towards my feelings amongst themselves leave me out isolate me – making me feel isolated make me feel vulnerable make me feel inadequate not supporting me say I’m doing a great job one minute and subsequently be presented with such serious allegations – these allegation that can completely ruin my career with children and demoralise me in an instance.”[13]The document was then amended by the additional paragraph that: “I feel that the investigations are a discredit to my character and I feel victimised” The document was then signed and dated 2 March 2019.[14]On receipt of the document Mr Sims adjourned the meeting for him to read the document which, having done so, determined that before he could proceed with the disciplinary meeting, there would need to be further investigations of the issues raised by the claimant’s statement for which it was agreed that the hearing be adjourned to allow for the further investigations to take place.[15]Following the adjournment of the disciplinary hearing, on 8 March, Mr Sims wrote to the claimant advising her: “I am writing further to your disciplinary meeting held yesterday which has now been adjourned until such time as we can reschedule following the submission at the meeting of your statement which is variously dated 22/02/2019 and 02/04/2019 and supporting evidence. As John (“the claimant’s representative – the tribunal’s emphasis”) is now away for two weeks on holiday, this will need to be after his return and I will liaise with you, John and Ben’s diary for the earliest possible date to reconvene. It would help if you were to agree with John before he leaves some convenient dates and times in the week commencing 25 March. In the meantime, I advised you that you remain suspended from the School but I had said that I felt it would now be appropriate for this to be on an unpaid basis as I believed to be permitted to under our policy. Having checked the policy I have noted that this belief is incorrect so please accept my apologies for that error. You therefore remain suspended on full pay until the conclusion of the disciplinary process. Case Number: 3313445/2019 5 The statement that you submitted contains some serious allegations against unnamed colleagues and I refer to your statement…. …. You will understand that, although these allegations may be considered of varying degrees of seriousness, at least two of these relate to knowledge that you possess of staff being in breach of our safeguarding procedures and are therefore extremely serious and all are contrary to school policies. Please confirm whether you are saying that the school knew about these instances to which you refer and if so, let me have confirmation of who it was that you believe to have been aware of the allegations that you make. I have no alternative but to take your allegations most seriously and I have passed these on to Andrea Caldwell in her capacity as the DSL, and asked her to investigate these matters on an urgent basis. I have asked her to include your position within the investigation as there would appear to be grounds to suspect that you are aware of these breaches being committed but have, until now, chosen not to draw them to the school’s attention. This is, an action where further investigation is warranted. Andrea will therefore be reviewing this aspect of the matter along with your specific allegation.”[16]The tribunal pauses here as the claimant advances that on Mr Sims advising that she would, following the adjournment, no longer receive pay pending the reconvening of the disciplinary hearing, this was evidence of the respondent, on the claimant having made her disclosures, determining that her employment would terminate and therefore no further needed to pay her a wage and evidence that the ensuing dismissal was because of her having made the protected disclosures.[17]It was Mr Sims’ evidence that he had, on the reconvened hearing following the adjournment being delayed because of the claimant’s circumstance and not because of the respondent’s, believed that the claimant was then not entitled to pay during the delay, but of which he was quickly corrected and advised the claimant accordingly, which was then recorded in his correspondence to the claimant, as above referred[18]Equally following the adjournment, Mr Sims made arrangements for the school’s designated safeguarding lead, Andrea Caldwell, to carry out the investigation into the concerns raised by the claimant. For completeness, it is here noted that following Ms Caldwell’s investigation, disciplinary proceedings were brought against staff involved.[19]It is here recorded that, of the concerns raised by the claimant, the parties agree that they raised safeguarding issues.[20]On 11 March 2019, the respondent requested further details of the claimant’s disclosures, for which the claimant furnished a statement on 13 March 2019. A copy of which is at R1 page 102.[21]On 20 March 2019, the claimant was written to by the Headmaster, advising that: Case Number: 3313445/2019 6 “I am writing as the investigation manager into allegations against you to say that, following receipt of your statement handed to Martin at the last meeting, the scope of the disciplinary meeting being held on 25 March has been extended to include consideration of the much delayed whistleblowing of the potentially serious allegations contained in your statement. The reason for this is that it is considered to amount to a breach of trust between you and the school.”[22]The reconvened disciplinary hearing took place on 25 March 2019, notes of which are at R1 tab 2, pages 1-8 and page 91.[23]It is Mr Sims’ evidence that, he reached his decision on the balance of probabilities, that the allegations relating to the claimant’s treatment of children, bullying of staff and her poor relationship with parents were well founded. Which, on referring to the school’s disciplinary procedure and policy, under the heading “gross misconduct – examples of gross misconduct”, bullying or harassment of employees, pupils or parents was set out and considered to be acts of gross misconduct, for which he concluded that the claimant’s treatment of the children, in particular the pupil whose parents’ complaint had led to the investigation, amounted to bullying, as did the treatment of staff which had come out in the statements, and for which he determined that dismissal was the appropriate sanction.[24]With regards the issues raised by the claimant’s disclosure, and the delay in her raising two particular issues, being; that in respect of the staff member herself admitting having intimate conversations with parents, and a staff member showing indecent images of herself with a parent on a mobile device, both of which issues Mr Sims states he considered to be extremely serious by a staff member at the school, which were in breach of the school’s policy relating to safeguarding.[25]Mr Sims determined that the claimant had received regular training on safeguarding issues during her employment at the school, including a course entitled “safeguarding children” which the claimant completed on 1 October 2018, and another course on keeping children safe in education, which the claimant completed on 15 October 2018 and that the claimant was aware of the school’s whistle blowing policy, which makes it clear that employees are encouraged to raise concerns with the school and that where there are concerns of child protection or safeguarding involving a member of staff then these issues must be raised directly with the head teacher unless he is absence, in which case the concern should be taken to the chair of governors. The claimant had failed to do this at the appropriate time, only choosing to do so during her own disciplinary proceedings some months later, Mr Sims determining that the claimant had acted in clear breach of the school’s policy, including the safeguarding policies which is given as an example of gross misconduct within the school’s disciplinary policy and procedures. Mr Sims felt that this would also have warranted dismissal for gross misconduct had it not been the case that he had already made a decision to dismiss the claimant based Case Number: 3313445/2019 7 on his findings in respect of the claimant’s treatment of pupils, parents and other members of staff.[26]The claimant’s employment was summarily terminated for gross misconduct, at the reconvened hearing and confirmed by correspondence of 25 March 2019.
The law
[27]The law relevant to the issues for interim relief, pending the determination of the complaint, is provided for by section 129 of the Employment Rights Act 1996, which provides “this section applies where, on hearing an employee’s application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates, the tribunal will find; that the reason (or if more than one, the principal reason) for the dismissal is one of those specified in;10.1.1 section ….103A….10.1.2 ….[28]The section then provides direction for the terms in which an order for interim relief is to be made.[29]The issue therefore for the tribunal to determine, is whether “it appears to the tribunal that it is likely that on the final hearing the tribunal will find that the claimant in this instance has been dismissed for the reason (or if more than one, the principal reason) that he had made protected interest disclosures.[30]The term “is likely” has been clarified by Underhill P, in Ministry of Justice v Sarfarz [2011] IRLR 562 at paragraph 16 that; “the meaning of “likely” in the context of the sections ….. has been the subject of a certain amount of authority. The leading case is Taplin v C Shippam Ltd [1978] ICR 1068…… In the judgement of the tribunal in that case, Slynn J recited the self-direction by the industrial tribunal chairman as follows……. “13. In his decision the chairman of the tribunal directed himself as to the meaning of “likely” in section 78(5). He referred to a previous decision of the industrial tribunal at which he had been chairman in the case of Johnson v Great Clowes Discount Warehouse Ltd (unrecorded). In that case the tribunal had drawn a distinction between “possible” (where the tribunal considered that there would be a less than 50% chance of success), “probable”, which was regarded as being more likely than not, when the chance of success would be more than 50%, and “likely”, where the tribunal said that Case Number: 3313445/2019 8 this meant “that the chances have to move a degree nearer certainty than would be the case if the word “probable” had been used.” They referred to the shorter oxford dictionary definition of “likely” as “seeming as if it would prove to be as stated.” They concluded that the word “likely” is a degree nearer certainty, than would be the case if only the word “probable” had been used.” On the basis of that direction, the industrial tribunal had refused the application for interim relief. The applicant argued on appeal that the approach taken by the tribunal involved imposing too high a standard and that “likely” should be treated as equivalent to “having a reasonable prospect of success.” After setting out that submission Slynn J proceeds; “21. Having considered all these matters which have been urged before us, we are unanimously of the view that the test proposed by Mr Hands of “reasonable prospect of success” is not one which should be adopted. The phrase can have different shades of emphasis, the lowest of which we do not think is sufficient. We do not consider that Parliament intended that an employee should be able to obtain an order under this section, unless he achieved a higher degree of certainty in the mind of the tribunal than that of showing that he just had a “reasonable” prospect of success…. We consider that the tribunal is required to be satisfied of more than that before it can appear “that it is likely” that a tribunal will find that a complainant was unfairly dismissed for one of the stated reasons.22. On the other hand we are not persuaded that there is a dichotomy between “probable” and “likely” as expressed by the chairman in the industrial tribunal. We find it difficult to envisage something which is likely but improbable or probable but unlikely and we observe that the oxford dictionary definition does define “likely” as “probable.” Nor do we think that it is right in a case of this kind to ask whether the applicant has proved his case on a balance of probabilities, in the sense that he has established a 51% probability of succeeding in his application, as has at one stage been contended before us. Nor do we find Mr Hands alternative suggestion of a real possibility of success to be a satisfactory approach. This again can have differing shades of emphasis. It seems to us that the section requires that the employee shall establish more clearly that he is likely to succeed than that phrase is capable of suggesting on one meaning. On the other hand, it is clear that the tribunal does not have to be satisfied that the applicant will succeed at the trial. It may be undesirable to find a single synonym for the word “likely” but equally, we think it is wrong to assess the degree of proof which has to be established in terms of a percentage as we have been invited to do.23. We think that the right approach is expressed in a colloquial phrase suggested by Mr White. The tribunal should ask itself Case Number: 3313445/2019 9 whether the applicant has established that he has a “pretty good” chance of succeeding in the final application to the tribunal. ...In this context “likely” does not mean simply “more likely than not” – that is at least 51% - but connotes a significantly higher degree of likelihood. Slynn J understandably declined to express that higher degree in percentage terms, since numbers can convey a spurious impression of precision in what is inevitably an exercise depending on the tribunal’s impression. Submissions[31]The claimant submitted written submissions which were augmented by oral submissions. The respondent presented oral submissions.[32]The submissions have been fully considered.
Conclusion
[33]On the tribunal being tasked to answer the question whether it appears to the tribunal that it is likely that on the final hearing the tribunal will find that the claimant has been dismissed for the reason (or if more than one the principal reason) that she had made protected interest disclosures, where the meaning of “likely” is to be answered on the tribunal asking itself whether the claimant has established that she has a “pretty good” chance of succeeding in the final application to the tribunal.[34]On the claimant’s claim that her employment was terminated for having made protected disclosures, where the disclosures were made by the claimant at a disciplinary hearing into allegations of gross misconduct, for which her employment was then in jeopardy, wherein she then made the qualifying disclosures in defence of the allegations against her so as to evidence differential treatment between her and her colleagues, which disclosures were then proffered for what appears to have been for no other reason otherwise than in defence of the claim against her, it is highly unlikely that the claimant will be able to establish that the disclosures were then made in the public interest, so as to amount to a qualifying disclosure; the submissions of the respondent being that save for the claimant being subject to disciplinary action for gross misconduct, she would not then have made the disclosures.[35]Were I wrong in this assessment, on the respondent’s case being that the claimant was disciplined, not for the fact of her making the disclosures, but for the fact that trust and confidence had been lost in the claimant by her failure to make the disclosures, in circumstances where it was incumbent on the claimant by the respondent’s safeguarding policy to have positively acted where safeguarding issues arose. On the claimant being in possession of such information but then failed to disclose such, and was the act for which dismissal would have been imposed, (albeit that the respondent’s case is that the claimant’s employment was terminated on misconduct being proved against her for bullying and harassment, which Case Number: 3313445/2019 10 was not predicated on any disclosures), the respondent having lost trust and confidence in the claimant, I find this to be a proposition for which there is arguable merit, and against which the claimant’s claim that her dismissal was for the reason, or principal reason, of her having made a protected disclosure, does not have a “pretty good” change of success.[36]In these circumstances, it does not appear to me that it is “likely” that the tribunal at the final hearing will find that the reason, or if more than one, the principal reason for the claimant’s dismissal, was because she had made protected disclosures.[37]I accordingly, do not find this an appropriate case in which to award interim relief. The claimant’s application is refused. _____________________________ Employment Judge Henry Date: …6/6/19………………………….. Sent to the parties on: ....................... ............................................................ For the Tribunal Office Case Number: 3313445/2019 and 3321401/2019 1 EMPLOYMENT TRIBUNALS Claimant Respondents Mrs A Vaghji 1. Edge Grove School Trust Limited 2. Ben Evans 3. Martin Sims Heard by CVP On: 4-7 January 20218 January 2021 (in chambers) Before: Employment Judge Manley Mr I Middleton Ms G Binks Appearances For the Claimant: Ms F Babalola, solicitor For the Respondent: Mr J Wynne, counsel
Facts
[38]The meeting on 7 March started with the claimant attending with her union representative. There is some dispute about the accuracy of the notes and the tribunal has seen two versions. One prepared by the claimant (page 495) and another which the first respondent fully accepts at page 428. There is not a significant difference between them and no real points were taken in cross examination with respect to any particular disputes. The claimant brought a number of written character references to the meeting and her representative raised an issue about the staff statements being anonymised. It was then stated that the claimant wished to present a written statement and she did so.[39]This statement is dated 22 February but it is accepted that it was not handed to the first respondent until 7 March. It is this document at page 375 which raises the first of the alleged public interest disclosures. It is worth reading the whole of that document which reads as follows: “My name is Anita Vaghji, I have worked with children for over 28 years and I have never had such strong allegations made against me. These allegations have left me completely heartbroken. In all my years of working with children I have shown love, care and attention enabling every child to reach their full potential carrying out my duties passionately. I have worked in a variety of settings and proved to be a strong and valuable asset to every team. I have never witnessed such that I am experiencing here today. I thought that I was being a listening ear to those that needed me and I managed to clear up and reorganise not only my current setting but any that I might have been in with high regard. I have always treated staff, parents and children with respect, importance and value as I am fully aware that the children are my primary concern and without them I would not have a job. I have always tried to create an even balance in terms of learning, fun and classroom management with an organised, personal and independent atmosphere which enables the children to thrive and flourish. I have always carried out my role and fulfilled my duty as a teacher in the best way possible showing receptiveness. It saddens me that other staff members can:• Vape in classrooms and within the school premises.• Have long breaks which are extended.• Have mobile phones in class.• Have personal intermate conversations with parents. Case Number: 3313445/2019 and 3321401/2019 12• Have shared indecent images of themselves with a parent on a mobile device.• Talk about me with no regard towards my feelings amongst themselves.• Leave me out.• Isolate me – making me feel isolated.• Make me feel vulnerable.• Make me feel inadequate.• Not supporting me.• Say I am doing a great job one minute and subsequently be presented with such serious allegations. These allegations that can completely ruin my career with children and demoralise me in an instance. At the end is a hand-written note: “I feel that the allegations are a discredit to my character and I feel victimised 2/3/19” It is signed by the claimant.[40]The tribunal has to consider what the claimant’s intention was when she presented these matters at the disciplinary hearing. For the purposes of the public interest disclosure claim, the tribunal needs to consider whether the claimant had a reasonable belief that anything she said would amount to a disclosure which was in the public interest and, in this case, that it concerned health and safety of an individual. We do not accept that that was what the claimant was doing at this point. The way in which that document is worded is entirely about the claimant’s own position. There is no hint in there that she believes there are any matters of health and safety or that she is, in some way, “whistleblowing”. She specifically refers to the fact that it saddens her about “other staff members”. The tribunal finds that the claimant did not have a reasonable belief that this was in the public interest or that it raised matters of health and safety when she submitted this statement which was entirely to do with the disciplinary process and was a way of comparing her alleged behaviour as against other staff members.[41]The claimant alleges that Mr Sims was furious when she handed this document. Mr Sims postponed the hearing so that he and Mr Evans could take some time to read the document. The tribunal do not accept that Mr Sims was furious but he accepted that he was frustrated by the document given that some things needed further investigation and this would lead to further delay, there already having been some delay whilst the claimant’s trade union representative was able to attend. It is possible that his frustration led to an error which he made when he indicated that the claimant’s suspension would continue without pay. The claimant also alleges that Mr Sims instructed her or asked her to retract the statement. Mr Sims denies that he did so. The tribunal find that there was no such instruction or suggestion. Having heard all the evidence, we find that it is Case Number: 3313445/2019 and 3321401/2019 13 highly unlikely that the school would wish to cover up some of the potentially relatively serious allegations, some of which might possibly amount to matters needing to be considered under the safeguarding policy. It is possible that the claimant heard some of his frustration in what Mr Sims said, but we cannot accept that he either harassed her or instructed her to retract the statement. In any event, even on her case, she did not retract it and the disciplinary hearing had to be postponed for further investigation.[42]As indicated Mr Sims told her that the delay had been caused by her late statement and her suspension would be unpaid. The tribunal accepts that was an error which he made but he cleared it up immediately and although it was unfortunate, he apologised for it in an email sent the next day on 8 March when he told the claimant that suspension would continue with pay (page 405).[43]It was decided by Mr Sims that there needed to be an investigation into other staff’s potential wrongdoing and matters the claimant had raised about attitudes to her. Firstly, he asked Ms Caldwell to carry out an investigation into matters which could amount to safeguarding matters. For our purposes those are the allegations about vaping and the sharing of the photo. Secondly, he asked Ms Emmerson to comment on what she knew about the last seven bullet points in the claimant’s statement.[44]Ms Emmerson told the tribunal that Mr Sims had told her about the claimant’s statement on 11 March and she sent him an email later that day in response to the last seven points. She said she had supported the claimant and had encouraged her to “assimilate” into the team. She gave examples of the claimant commenting on how supportive Ms Emmerson had been.[45]Mr Sims replied to that email, also on the same day, asking Ms Emmerson to make a statement “maybe using your notes as rebuttal of her statement?”. Mr Sims was cross examined in this hearing on what was meant by “rebuttal”. Mr Sims said that, with hindsight, he would have used a different word but did not agree that he was only looking for evidence that went against the claimant. Ms Emmerson said that she understood “rebuttal” to mean that she should give her opinion alongside the claimant’s. She did not accept it was necessarily confrontational. On 12 March Ms Emmerson signed a statement which repeated much of what she had said in her email. In summary, that the claimant had been supported, that the claimant herself had been reluctant to participate but that she had encouraged her and given positive feedback. The tribunal accepts that Ms Emmerson was giving as accurate a picture as she could of the claimant’s concerns. Ms Emmerson was not influenced by the use of the word “rebuttal” as she put in her statement much the same information as was in her email before that word was used by Mr Sims.[46]As for the other bullet points about other alleged wrongdoing by staff, Mr Sims and Ms Caldwell have slightly different recollections of the process which was discussed between them for the investigation into these potential safeguarding matters. Ms Caldwell’s evidence was that she Case Number: 3313445/2019 and 3321401/2019 14 agreed with Mr Sims what the questions to those staff members should be whereas he recollected that they simply discussed the scope of the questions. This has been characterised by the claimant’s representative as “limited” questioning because there appeared to be no follow up questions at the investigation stage. This is partly accurate, although for some of the people involved there were further questions at the disciplinary stage. One allegation which was subsequently made by the claimant does not seem to have been pursued, that of BM losing her vape at some point.[47]The claimant was asked for more information from Ms Caldwell who was then asked and provided assurance to the claimant that there would be no reprisals for her raising matters under the whistleblowing policy. The claimant then provided further information on the matters she had raised in the 22 February document by a document of 13 March 2019. The claimant put some dates on the allegations she had mentioned in that statement. She alleged that EL came into reception area where the claimant was working in December 2018 and started vaping. She further alleged that EL had been there on the 10 January with a vape in her hand and that she had asked her not to vape. Finally, she said that EL had confided in her personal issues in January 2019. She went on to say that EL had confided in her about a topless photograph on her phone and that she had made the response referred to at paragraph 16.[48]The claimant also raised issues about TB in that she alleged that she took long breaks. As far as a colleague BM was concerned, she alleged that she had told her that she had lost her vape in December 2018 when she had asked if she had seen it because she had lost it. She alleged that sometime later she said had found it. She also alleged that she had seen TB using her mobile phone on 22 January 2019.[49]As indicated, those were the matters which formed the basis of the questions asked of various staff members by Ms Caldwell and the notes appear between pages 418 and 422. It is not necessary to refer to all of them. We have already made reference to EL’s response about vaping. As far as the intimate photo was concerned, EL agreed that she had sent the photo and that she had spoken to the claimant about it. She did not suggest that the claimant had shown any concern, but said she had made other comments including that she did not need to worry.[50]One staff member, MA, said that she had seen BM and EL vaping, but not when children were present. TB said that EL and BM had vaped in team meetings and BM said that she had seen EL vape once. BM vehemently denied any vaping behaviour and strongly refuted the allegation. Ms Caldwell notes that she did follow this up and Ms Emmerson said that she had not had any of that reported to her. It seems that Ms Caldwell did not follow up any of the other answers at that stage.[51]Mr Sims was sent the questions and answers and discussed them with Ms Caldwell. They both agreed that they would proceed to a formal disciplinary hearing against EL on the inappropriate photo and vaping, but that BM and TB would be advised there was no case to answer as they both Case Number: 3313445/2019 and 3321401/2019 15 denied the allegations. Mr Sims was to be the hearing manager for EL and he said that they should be sent the relevant documents. In letters to BM and TB Mr Sims made the mistake of calling Ms Caldwell the hearing manager when she was in fact the investigation manager, but nothing very much turned on that.[52]On 20 March the claimant was written by Mr Evans to be told that, “The scope of the disciplinary hearing being held on the 25 March has been extended to include consideration of the much delayed whistleblowing and the potentially serious allegations contained in your statement. The reason for this is that it is considered to amount to a breach of trust between you and the school.”[53]On 21 March Mr Sims held a disciplinary hearing with EL. He told the tribunal that EL had denied vaping, but it seems that he did not put directly to her that that might contradict what she had said in answer to questions from Ms Caldwell (as mentioned above at paragraph 19 and 20). In any event, he decided that there was no case to answer with respect to vaping and the EL was given a final written warning for the inappropriate photo which reads as follows: “A final written warning will be placed on your HR file, and due to the seriousness of the matter, that warning will not be time limited. This is because the sharing of the media concerned could have caused disrepute to the name of Edge Grove School. You should be aware that any future proven serious allegations of any nature may result in your instant dismissal.”[54]As indicated, the claimant had been informed that her disciplinary hearing would include the alleged breach of trust. The first respondent accepts that this only allowed 3 working days between 20 March, which was a Wednesday, and 25 March, which was a Monday, whereas its disciplinary procedure says that 5 working days’ notice is required. This matter was not raised by the claimant either before or at the hearing or by her representative, but it has been criticised here.[55]The disciplinary hearing was held on 25 March 2019. It was held in Mr Evans’ office, and he was there to present the case as the investigation officer. The claimant was present with her trade union representative and Mr Sims was the hearing manager. There are handwritten notes and there are typed notes; as indicated these are not entirely agreed, but some of them have been referred to and there are no significant differences that go directly to the issues. It is not disputed that a copy of the written parental complaint referred to above at paragraph 22 was never provided to the claimant but it does not seem it was requested.[56]Mr Evans said that the four matters were to be considered:- “1. Treatment of children; 2. Bullying of staff; 3. Poor relationships with parents; 4. Breach of trust”. It was said that there had been investigations following the claimant’s personal statement presented to the meeting on 7 March Case Number: 3313445/2019 and 3321401/2019 16 2019. Mr Evans then went through some of the details contained within the documents, statements from staff and the parents’ complaint letter. On the claimant’s behalf, the trade union representative stated that some matters should be considered separately and that the breach of trust allegation should not proceed as it was not part of the original disciplinary hearing. No specific point was taken about the time frame.[57]Again, details of the allegations were gone through with the claimant. She gave a number of explanations for what had occurred and took issue with characterisation of her attitude to staff, parents and children. To a large extent it seems that there was a difference of opinion as to how the claimant’s attitude had or had not impacted on other people.[58]The conversation then moved on to the breach of trust allegation. It was put to the claimant that she had known about the allegations “as it had happened in the past but only chose to whistleblow now due to the disciplinary hearing”. The claimant replied that it was more a reflection of herself. She said that she was scared and new to the school and now she had representation she felt able to raise matters. This has been her explanation throughout this hearing as to the delay in bringing potentially serious disciplinary and/or safeguarding matters to the schools’ attention. When asked why she was scared she said that she did not know who to go to. Mr Evans commented that he was concerned that she did not know what to do with a safeguarding issue as that was clear from the policy and training. She repeated that she was saddened to raise the issue now and repeated that she had been scared.[59]There was then an adjournment. The disciplinary policy at 6.3 (page 202) states that all parties should be asked to leave the room while a decision is made, but Mr Sims stayed in the room with Mr Evans and the note taker present whilst the claimant and her representative left the room. Mr Evans gave evidence that there was no discussion between them and the tribunal accepts that given that it is quite clear that the decision was taken entirely by Mr Sims. There had been an earlier adjournment (page 343) which the claimant asked for. She was asked whether she wanted to make other comments and there were a considerable number of bullet points recorded, the points she made at page 434. These are a mixture of concerns about her own treatment and the statements about her willingness to improve if that was needed. When the meeting reconvened after Mr Sims had considered matters it is recorded that he said: “That it was not within reasonable doubt that the four statements and the original investigating officer’s interview with (the claimant) gives strong credence to bullying behaviour by (the claimant) and breach of trust between (the claimant) and the school. The outcome is gross misconduct and (the claimant) was dismissed effect 25 March 2019”[60]There was then a short discussion about the claimant’s right of appeal and the claimant collecting some personal items. An email was sent later that day by Mr Sims which says: Case Number: 3313445/2019 and 3321401/2019 17 “I am writing following the disciplinary hearing held with you today at which you were advised of the allegations of bullying and of betrayal of trust had on the balance of probability, been upheld again you and that you were therefore being dismissed with effect from today 26 March 2019.” (page 436)[61]Mr Sims gave detailed reasons in his witness statement to the tribunal about his decision to dismiss. In that witness statements (paragraphs 28 to 32) he says that he deliberated by going through all the evidence, including the statements from the colleagues and Ms Emmerson’s statement. He said that he considered the disciplinary policy, including the examples of gross misconduct which include bullying or harassment of employees and (at paragraph 31) he concluded that the claimant’s treatment of children also amounted to bullying.[62]At paragraph 32 he sets out, in some detail, why he took the view that her delay in raising the matters which could fall under the whistleblowing policy but also could form safeguarding issues amounted to a breach of trust so that, if he had already not decided to dismiss her for the other reasons, he would have dismissed her for breach of trust. What he says in his statement is not completely in accordance with the contemporaneous evidence of what he said at the hearing and in the email. That rather suggests that his concentration was on bullying and breach of trust taken together.[63]However, the tribunal has to consider, as a question of fact, whether the reason for the dismissal was because the claimant had made a public interest disclosure. Putting to one side the question of whether what she said did amount to a protected disclosure under its legal definition, the tribunal has considered whether anything she wrote in the statement was the sole or principal reason for her dismissal. We find that it was not. Quite clearly, Mr Sims took the view that both the bullying aspect and breach of trust were matters of gross misconduct and that was the reason for the claimant’s dismissal. The breach of trust was a breach of trust not because the matters were raised but because there had been a delay in raising them. In the first respondent’s view, they had been raised only to delay or derail the claimant’s own disciplinary procedure by pointing the finger at other potential wrongdoing.[64]The tribunal accepts that the first respondent had sufficient evidence to convince it that the claimant’s attitude amounted to gross misconduct because of the impact that it had on parents and staff (and potentially the children) and that was the reason for dismissal. We also pause here to consider whether, as a matter of fact, the claimant’s race played any part in this decision. There is simply no evidence to that effect but we will provide further details on that when we deal with the issues and our conclusions.[65]The claimant did present an appeal and attended an appeal hearing with the chair of governors but that was dismissed and no point is taken on it. As indicated, she lodged two claims and there was a hearing to deal with Case Number: 3313445/2019 and 3321401/2019 18 an interim relief claim for the protected disclosure matter which was unsuccessful.
The Law
[66]The law with respect to public interest disclosures is set out in part IVA of Employment Rights Act 1996 (ERA). SectiSectioon 4n 43A ERA 963A ERA 96 defindefines a es a ‘‘pprotected rotected ddiscisclosurelosure’’ as a qualifying disclosure (as defined by s43as a qualifying disclosure (as defined by s43B) which B) which is made by a worker in accordance witis made by a worker in accordance with any h any oof sections 43C to 4f sections 43C to 43H3H””..[67]The The relrelevantevant parts of sparts of section 43B of ERA 96ection 43B of ERA 96 statestate:: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure is made in the public interest and tends to show one or more of the following— (a) - (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) - (d) that the health or safety of any individual has been, is being or is likely to be endangered,[68]Pursuant to s43C a qualifying disclosure is made if the worker makes the disclosure to his employer.[69]When considering whether there has been a ‘disclosure’ within the meaning of s43(B)(1) the employee must disclose ‘information’. It is not sufficient that the employee has made an ‘allegation’ ‘allegation’ ((CavendishCavendish MunMunroro PrProfessiofessionalonal Risks Management Risks Management Ltd v. MrLtd v. Mr. M Ged. M Gedulduld [2010] [2010] ICR 325ICR 325)) although that has beenalthough that has been clarified by clarified by the Court of Appeal ithe Court of Appeal in n Kilraine v LoKilraine v London ndon Borough of WandBorough of Wandswswoorthrth [2018] [2018] ICR 185ICR 18500 so that there is little so that there is little distinctiondistinction between allegation or between allegation or informationinformation.. TThe tribunalhe tribunal must must look at look at what what was saidwas said andand must considemust consider r whetherwhether the disclosures the disclosures containcontain sufficient factual content sufficient factual content and speciand specificity toficity to amountamount to a to a reasonreasonableable belief belief in tin the breach ahe breach alllleged.eged.[70]The claimant The claimant must show that must show that sshe reasohe reasonably believed the nably believed the disclosuredisclosure was inwas in the the public interestpublic interest.. TThere is no requirement to here is no requirement to show that show that the breach actuallythe breach actually occurred. occurred. Our task is to consider, in relation to the alleged disclosures, whether, in the claimant’s reasonable belief there was information which was in the public interest and tended to show one of the matters in s43B (1) b) or d), namely that there had been or was likely to be a breach of a legal obligation or a health and safety risk. As far as the public interest aspect is concerned, Parsons v Airplus International Limited UKEAT/0111/17 reminds us that where a disclosure is “solely made” in the claimant’s self-interest, it will not be in the public interest. It may, of course, be in the claimant’s self interest as well as in the public interest. Case Number: 3313445/2019 and 3321401/2019 19[71]GuidanGuidance is proce is provided tvided to tribunalso tribunals hhearing public interest disclosure earing public interest disclosure cases in cases in BlackBlackbay Ventures Ltd T/A Chbay Ventures Ltd T/A Chemisemistree v Gahtree v Gahirir [2014] ICR 747[2014] ICR 747. It is . It is suggested that each disclosure shoulsuggested that each disclosure should be sepad be separately iderately identifntified; that each ied; that each failure to complfailure to comply with a legy with a legal obligaal obligation otion or health anr health and safd safety allegatety allegatioion n should be separately identified; that the legashould be separately identified; that the legal obligation may need to l obligation may need to bebe identifieidentified;d; tthat the issue of whether the hat the issue of whether the claimclaimant ant had a reasonable had a reasonable bebelief thatlief that it was init was in thethe public interest and, where detpublic interest and, where detriment is riment is alleged, thalleged, that theat the detrimendetriment shoult should be identid be identifified. ed.[72]Section 103A ERA provides: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”.[73]If we find that there were one or more public interest disclosures, we must then consider whether the dismissal was because the claimant made the disclosure(s). With respect to the burden of proof where the claimant claims automatically unfair dismissal under s103A ERA, the case of Kuzel v Roche Products Ltd [2008] IRLR 530 states that the claimant must challenge the employer’s reason and produce some evidence of a different reason for dismissal.[74]Section 47B ERA provides that a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer on the ground that the worker has made a protected disclosure. Section 48(2) ERA provides that on a complaint under section 47B :- “it is for the employer to show the ground upon which any act, or deliberate failure to act was done”. The tribunal must decide what caused the detriments (if any are found) and the dismissal. Helpful guidance in assessing causation is provided in the Court of Appeal’s judgment in Fecitt v NHS Manchester [2012] ICR 372 where it was said: “section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than trivial influence) the employer’s treatment of the whistleblower”.[75]The direct race discrimination claim is brought under sections of the Equality Act 2010 (EQA). The most relevant are as follows: - section 13 for the direct race discrimination claim (along with section 23 on comparators) and the burden of proof provisions at s136. Those sections are reproduced below. Section 13 : Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.(2) If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim. Case Number: 3313445/2019 and 3321401/2019 20 Section 23 : Comparison by reference to circumstances (1) On a comparison of cases for the purposes of Section 13, 14 or 19 there must be no material difference between the circumstances relating to each case Section136: Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.(5) This section does not apply to proceedings for an offence under this Act.(6) A reference to the court includes a reference to— (a) an employment tribunal;[76]The tribunal must make findings of fact and apply the legal tests to those facts. The tests for direct discrimination were discussed in Igen v Wong [2005] ICR 931 and it is clear that all evidence before the tribunal can be taken into account, not just that put forward by the claimant. The tribunal is mindful that it is unusual for there to be clear, overt evidence of direct discrimination and that it should consider matters in accordance with section 136 EQA. When making findings of fact, we may determine whether those show less favourable treatment and a difference in race. The test is: are we satisfied, on the balance of probabilities that this respondent treated this claimant less favourably than they treated or would have treated someone of a different race. We are guided by the decision of Madarassy v Nomura International plc 2007 IRLR 246 reminding us that unfair treatment and a difference in race, or any other protected characteristic, does not, on its own, necessarily show discriminatory treatment.[77]If we are satisfied that the primary facts show a difference in race and less favourable treatment, we proceed to the second stage. At this stage, we look to the employer for a credible, non-discriminatory explanation or reason for such less favourable treatment as has been proved. In the absence of such an explanation, proved to the tribunal’s satisfaction on the balance of probabilities, the tribunal will conclude that the less favourable or unfavourable treatment occurred because of the claimant’s race. Case Number: 3313445/2019 and 3321401/2019 21[78]The parties provided written submissions and added to them orally. Although they helpfully addressed the list of issues, as they were invited to, there was no dispute on the legal tests to be applied, as set out above.
Conclusions
[79]The best way to give our conclusions is by reference to the list of issues. Some of what we say will be obvious from the facts already found but we will make it clear what we conclude on the basis of having come to those factual findings. Protected Disclosure[80]At issues 10.1 and 10.2, it is clear that the claimant’s case is that she raised alleged protected disclosures in documents given to the first respondent on 7 March and further details on 13 March. For our purposes, the ones relied upon are the matters concerned vaping on school premises and the sharing of an indecent image.[81]Issue 10.3 asks us to determine what information was disclosed. Information that was disclosed was that there had been a breach of the rule against vaping and that there had been a sharing of an indecent image with a parent on one occasion contained in the claimant’s two statements.[82]We next have to consider whether the claimant had a reasonable belief that the disclosure of that information was made in the public interest (issues 10.3.2 and 10.3.3). The tribunal finds that the claimant did not have that reasonable belief. If she had had a concern that either of those matters were in the public interest and they amounted either to something which endangered health or safety of the children or anyone else or that it was a safeguarding matter, there is really no good explanation for the delay in bringing that matter to the attention of the school. At the very latest, those matters must have occurred before 25 January when she was suspended and it was not until the hearing on 7 March that she provided that information. Her explanation for not providing it earlier, even though the document itself is dated 22 February 2019, is that she was scared and wanted the assistance or support of a trade union representative. That is not a good reason for the delay or the hesitancy in bringing those matters forward. If as the claimant now seeks to argue those matters were relatively serious, her hesitation in bringing them to the first respondent’s attention is not credible. It is quite clear from the whistleblowing policy, which the claimant had received, that these matters would be considered without any question of reprisal. If the claimant considered they were safeguarding matters, there was an extra responsibility on her to bring it to the first respondent’s attention earlier. The fact that she raised it within the disciplinary process and as comparisons of other alleged reprehensible behaviour, makes it clear to the tribunal that she did not have a reasonable belief it was in the public interest. It was in her sole interest that she made these allegations. Case Number: 3313445/2019 and 3321401/2019 22[83]The tribunal then have to consider whether she had a reasonable belief that (at 10.4.1) that the health and safety of any individual was likely to be endangered. The tribunal cannot find this on the evidence before us. Although it is potentially the case that there might be aspects of health and safety of an individual in either vaping or the indecent photo, there was no hint from the claimant that that was her concern. She did not mention that in any of the documentation or the information disclosed and we do not accept, at the time, she had such a reasonable belief.[84]We therefore turn our attention to issue 10.6 which is the dismissal. Strictly speaking we do not need to determine this because we have found that there was no protected disclosure. However, it makes sense to go on to consider, if there had been was a protected disclosure, whether that was the sole or principal reason for her dismissal. The tribunal finds that the fact that the claimant had provided information was not the reason for her dismissal.[85]Firstly, there are other allegations against the claimant which the first respondent found, on a balance of probabilities, to have taken place. The first respondent did not break these down, but it seems that it is at least an equal cause of concern for it, that she had been found to have been responsible for bullying. The breach of trust allegation was one which they took into account, but it was not the sole or principal reason. In any event, it was a question of breach of trust for both the delay in bringing those concerns to the first respondent and also its belief that she had only brought it because of her own disciplinary proceedings. It was a question of delay and timing rather than the mere fact of bringing the information. The claimant’s claim that she was dismissed because she had made a protected disclosure must be dismissed. Direct Discrimination[86]This appears between issues 10.7 to 10.11. The tribunal accepts the issues between 10.7 and 10.9, that this is a claim based on the claimant’s Indian ethnicity. Turning then to the alleged less favourable treatment under issues 10.10.1 to 10.10.14, we have to consider whether the claimant has shown that there was less favourable treatment such as to pass the burden of proof to any of the respondents.[87]Issues 10.10.1 to 10.10.3 all appear to be about alleged failures to follow procedures or to fail to follow one procedure rather than another. The purported failures are not always particularly clear, but the tribunal comes to these conclusions. The tribunal accepts that the first respondent decided to follow the disciplinary procedure rather than any of the other procedures which it has (save for the safeguarding investigation which came later). At the outset the parental complaint could perhaps have been followed under the complaints policy. However, it did raise issues which the first respondent reasonably considered to be questions of discipline and therefore it was quite right that it considered matters under the disciplinary policy which, in any event, provided a level of protection to the claimant which it is possible following the complaints policy would not. Case Number: 3313445/2019 and 3321401/2019 23[88]Similarly, the matters raised by staff when they put in their statements could not have been any better followed under any grievance or bullying and harassment policy or the claimant’s alleged difficulties at work under the incapability procedure. It is a matter for the respondents to decide which is the most appropriate policy and there is really no criticism which can be levelled at them for choosing the disciplinary policy which, on the facts of this case, was certainly the most appropriate one. In any event, the tribunal can find no less favourable treatment in that, particularly as the individual named comparators were also subjected to the disciplinary process later after the information the claimant provided was investigated. There is no less favourable treatment there.[89]Issue 10.10.4 makes no sense given we are considering whether the claimant can show less favourable treatment and no reply is needed.[90]As far as issue 10.10.5 is concerned, it is correct that the word bullying was not used to describe the claimant’s behaviour before the disciplinary hearing commenced on 25 March. Although it would have been better for it to have been clearly stated, the tribunal can understand why the respondents felt that it would have been clear to the claimant that the allegations contained in the staff statements could amount to bullying. In a perfect process, the four points raised by Mr Evans at the commencement of the disciplinary hearing would have been put in a letter to the claimant before she attended. However, we cannot see that this was any disadvantage to the claimant as she was clear about the details of the allegations and what had been said against her. She had had some time to read the staff statements and consider her responses to them. In any event, there is nothing to suggest to the tribunal that the claimant’s race had anything to do with that matter not being said as clearly as it might have been.[91]At issue 10.10.6 the claimant raises an issue of the staff statements not being put to her on 1 February which is of course correct because three of them are dated the 4 February. This means that she did not have an opportunity to respond to them in the investigation meeting. The tribunal accepts that that is the case but can see little or no disadvantage to her about that because she had some time to consider them and answer them fully in the disciplinary hearing. In any event, that is a very similar process to that used for EL who was called to a disciplinary hearing without, as far as we can tell, a formal investigation hearing. The tribunal does not accept that this amounted to less favourable treatment given that it appears to have nothing to do with the claimant’s race.[92]The tribunal do not understand the allegation in issue 10.10.7. There is no evidence that those four staff statements were “not in accordance with the disciplinary policy”. There is no less favourable treatment there.[93]As far as issue 10.10.8 is concerned, it is true that there was a breach of the disciplinary policy when Mr Evans remained in the room when Mr Sims was deliberating. However, the tribunal has accepted there was no Case Number: 3313445/2019 and 3321401/2019 24 discussion between them and, in any event, it does not necessarily amount to less favourable treatment as we do not know who was in attendance at other people’s disciplinary hearings. It might be something that the first respondent should be careful about in the future as it is a minor breach of its procedure.[94]At issue 10.10.9 the claimant asks that the tribunal find that there was a disparity of treatment. Of course, there is disparity of treatment as between the claimant and others facing disciplinary proceedings. That is because the matters for which other people were investigated were very different. As far as EL is concerned, she was disciplined and found to be culpable of a one-off incident for which she got a serious final written warning. The allegations against the claimant were a number of different matters over a longer period of time. In essence, they were more serious than those of her white colleagues. The issue of vaping might be something which the first respondent should consider reminding staff of, but it is not in the same category as a number of the allegations about the claimant’s attitude and behaviour. There is a material difference between the claimant’s situation and that of her named comparators.[95]As far as issue 10.10.10 is concerned, the tribunal do not accept there was any breach of the procedure. The policy does not say that nobody else should be present when the claimant was notified of the decision and it cannot amount to less favourable treatment in the circumstances.[96]As far as issue 10.10.11 is concerned the tribunal find that although the word “rebuttal” can suggest an oppositional attitude, it is quite clear Ms Emmerson only understood it to be that she needed to respond to what the claimant said and does not amount to less favourable treatment. The question of Mr Sims “improperly inserting himself into the process” is one the first respondent might wish to be careful of in the future. However, it is not unusual for a hearing officer to have some say about what information might be required in the investigation process and, in any event, it seems clear that Mr Sims was involved in the other disciplinary investigations as well as hearing manager for the claimants and her named comparators. There is no less favourable treatment there.[97]Issues 10.10.12 and 10.10.13 are about the late allegation of bullying and the “labelling” of the claimant as a bully. As is clear from the facts, it might have been better for the claimant to be told that her behaviour could be considered as bullying but that does not indicate any less favourable treatment. No real detriment has been identified and certainly nothing that amounts to less favourable treatment.[98]Finally on race discrimination, we turn to the issue of whether there is less favourable treatment in the dismissal. The first thing to say is that there has been no evidence that the claimant was less favourably treated because of her race. The mere fact that she is Indian and her named comparators are white or that there could be a white hypothetical comparator does not show any difference in treatment because of race. Case Number: 3313445/2019 and 3321401/2019 25 She has been unable to indicate anybody who is similar circumstances being treated differently. The matters are quite different and she therefore cannot show less favourable treatment.[99]For completeness, even if the claimant had shown facts from which we could conclude that there was less favourable treatment, so that the burden of proof passed to the respondent, the tribunal is satisfied on the evidence before us, that the decisions taken were completely without any concern for the claimant’s race.[100]Turning then to the public interest disclosure detriment claim. First of course the tribunal has already found that there was no protected disclosure. For completeness, we deal with issue 10.13 and say that there was no detriment in the further disciplinary allegation because of the whistleblowing allegation. As stated before, the tribunal is quite satisfied that the further disciplinary action was for matters of trust because the claimant had raised these matters some time after the event and, in the first respondent’s reasonable view, she raised them because of her own disciplinary matter rather than as a public interest disclosure.[101]For all these reasons the claimant’s claims must fail and are hereby dismissed.