Ms C Fraser v The Good Shepherd Trust and others: 3320552/2019
REASONS
[1]On 18 July 2019 the Claimant presented a claim of protected disclosure detriment to the Tribunal under s.47B and s.48 of the Employment Rights Act 1996.[2]On 24 September 2019 the Respondents presented a response and resisted the claim.[3]The issues to be determined by this Tribunal were clarified at a Preliminary Hearing held on 24 April 2020 and set out in a Case Management Order[4]This hearing has been conducted remotely by CVP videolink.[5]The Tribunal heard evidence on oath from the Claimant, Ms Charlotte Fraser. The Tribunal also heard evidence on oath on behalf of the Page 1 of 13 Respondents from Ms Sarah Hatch, the 3rd Respondent.[6]The Tribunal also read documents in a bundle provided by the parties and both parties provided written submissions after the evidence had been completed. From the evidence heard and read the Tribunal made the following findings of fact.Findings of fact
[7]The Claimant was employed by the 1st Respondent at Christ’s College Guildford as the Examinations Officer and Special Education Needs Administrator. Her employment was from 11 May 2009 to 19 September 2019 when her employment was terminated by reason of redundancy.[8]The alleged protected disclosures arose out of a communication with a pupil’s parent set out in the Claimant’s witness statement at paragraph 14 (the names of the pupil and the parent and the teachers are omitted or replaced by initials): “On 15 May 2018 I received a phone call from a parent of a pupil. She said she was more than disappointed with her son’s coursework mark as he had been told there was a deadline and to send all his files in to the teacher which he did, but … the teacher, said she only received six files so he was given a rubbish mark and wasn’t given any chance for a review of marking. She said she wanted someone else to look into it.”[9]There then followed what the Claimant alleged were five protected disclosures which were set out in her witness statement and also in further and better particulars which she provided in response to the Case Management Order.[10]The first protected disclosure is described at paragraphs 19 and 23 of her witness statement as follows: “16 May 2018 approximately 9.45 I went to speak to Mr K and Mr K was then the head of centre and the principal of the second respondent, to let him know I had seen the email and there were indeed many attachments and that there was potentially a breach of regulations if indeed there had been no review of marking allowed. Mr K asked me to email KW [teacher] to ask if there were review of marking arrangements. Perhaps the student or parent had misunderstood what KW had put in place or due to the student’s extended hospital stay they had missed the opportunity. I reiterated that this might be a breach in regulations and Mr K asked me how a teacher would have known about this change in regulations. Mr K asked if I could forward him the email I sent to all teachers so he could ask KW about it. … 16 May 2018 afternoon I spoke with Mr K. He said he had spoken with KW and she said she had never done it before and didn’t know about the review of marking policy. I told him this wasn’t okay and was a potential breach of regulations as this had to be offered to students. Mr K said KW should have known as things change all the time. I told Mr K that this should be reported as Page 2 of 13 potential malpractice for the exam board to investigate. I said that because it was a new policy the exam board would probably be checking that we do it and if we do something now it could be rectified as the NEA deadline has only just passed and we’ve got plenty of time before the results day to put this right. I said that for the sake of the applied business students and the integrity of GCSE’s we had to do something. Mr K said to leave it with him and he would deal with it. I confirmed that I hadn’t called the parent back and that I would leave it with him.”[11]The second protected disclosure was at paragraph 30 of the Claimant’s witness statement: “26 June 2018 approximately 3.10 pm I spoke with Mr K in the front office just before he was going into a core leadership team, that is a CLT meeting. I told him there was a potential irregularity in the NEA’s and that now there was an official complaint it would need to be escalated as a potential malpractice. I asked what had been done and had it been reported to the exam board. Mr K said it hadn’t been reported to the exam board so I asked if it could be raised as an urgent matter in the CLT meeting. Mr K said the agenda was a bit too full to raise any other issues. I said it was very important as a JCQ Regulation breach is potentially highly damaging. I said that to protect the integrity of GCSE’s this must be discussed. I told Mr K I would contact the exam board to find out what needs to be done. I said that was the second protected disclosure.”[12]The third protected disclosure was at paragraph 32 of the Claimant’s witness statement: “27 June 2018 after checking the JCQ guidance in relation to suspected malpractice in examinations and assessments I rang JB at Edexel and Edexel was the examination board. I explained there was a possible malpractice issue as a member of staff didn’t think she had received all the work submitted by a student and that a student and possibly the whole class had not received the opportunity for a review of marking. I explained that if it was only the one student it was a possible special consideration issue as the student had been in hospital but the bigger picture was that the teacher didn’t know that they were supposed to offer a review of marking. JB informed me to email the malpractice department. That was the third protected disclosure.”[13]The fourth protected disclosure was at paragraph 33 of the Claimant’s witness statement: “28 June 2018 I emailed Edexel to explain that we had a complaint regarding NEA’s and review of marking. I explained that at this stage it was possible the teacher was unaware of the changes in regulations that needed her to offer a review of marking. I asked whether we should report this as an irregularity or should we investigate internally”[14]The email headed “Possible malpractice issue or just a mistake?” which the Claimant sent to Edexel is at page 123 of the bundle dated 28 June 2018: “On 26 June we received a complaint raised by a student that they had never Page 3 of 13 had a chance to review their marking before work was submitted to you. They have also queried whether in fact the correct work was submitted as they gave multiple documents to the teacher but the teacher said they never received them. We are investigating further at this end to see what can be done but it occurred to me that I should let you know as a possible malpractice or irregularity. It would appear at this stage that none of the class had a chance to review their marks before submission as the teacher was unaware of the changes. Do you need me to report this matter fully to you as an irregularity or should we investigate this internally?”[15]Edexel responded on 28 June 2018: “Thank you for bringing this matter to our attention. The JCQ General Regulations for Approved Centres states in section 5.8 that the centre must inform candidates of their centre assessed marks as a candidate is allowed to request a review of the centre’s marking before marks are submitted to the awarding body. As the candidate is alleging that this opportunity was not afforded to them it would represent a breach of regulations if proven. In order for us to investigate the matter I would be grateful if your head of centre could obtain a statement from the candidate and teacher in question addressing both this point and the matter of the disputed work and submit this to us along with a JCQ M2B by Friday 6 July for our review. Should any of the above require further clarification please feel free to contact me.”[16]The fifth disclosure is at paragraph 34 of the Claimant’s statement: “28 June 2018 09:34 I forwarded the reply email from Edexel to Sarah Hatch asking whether she would like me to come and explain this. My disclosure to Edexel was included in the email trail.”[17]On page 122 there is a short email from the Claimant to Ms Hatch enclosing the email from Edexel and the Claimant said: “Are you free for me to come along and explain this?”[18]Ms Hatch had taken over from Mr K as Head of Centre and Principal of the 2nd Respondent on 4 June 2018 and at that point Mr K became the Vice Principal.[19]On 29 June 2018 Ms Hatch took exception to the Claimant having contacted the examination board, Edexel, before informing her of the matter and also because the Claimant had previously encouraged teaching assistants to complain about pay. She wrote to the Claimant on 29 June 2018: “Disciplinary fact finding investigation I am writing to inform you that you are required to attend an investigation meeting on Wednesday 4 July 2018 at 11:30 in the conference room in respect of the following concerns which have been notified to the school. 1. That on or around Thursday 28 June 2018 you may have communicated Page 4 of 13 with an examination board via email alleging malpractice from a member of staff in the business study department, KW, about a student complaint without bringing this to the attend of any senior leaders which would have enabled an internal investigation to take place. 2. That following receipt of a management instruction on 17 May 2018 from the College Business Manager, KW, about staff not being eligible to claim pay for work they have not undertaken that you may have subsequently encouraged staff to complain around a procedure which would have resulted in dishonesty. The allegations that will be investigated in relation to these actions will be:(i) serious misuse of your position through failure to comply with work procedures;(ii) conduct that brings the school and a teacher’s name into disrepute;(iii) failure to accept and follow a legitimate and reasonable management instruction; and(iv) serious breach of confidence in your ability to undertake your role in a professional manner.” … We reserve the right to change or add to these allegations as appropriate in the light of the information revealed in the investigation and recommendation. The purpose of the investigation meeting is simply to ascertain the relevant facts. Upon conclusion of the investigation the school will consider whether or not there is a prima facie case to answer such as to warrant a disciplinary hearing.”[20]An investigation meeting was held on 4 July 2018 and that was conducted by Mr CT, an assistant head teacher, at which the Claimant was questioned about the two matters set out in the letter. Mr CT produced an investigation report in which he concluded that there was no disciplinary case to answer in respect of either matter and his recommendation, which is on page 142, read: “My recommendation for both concerns is that there is no disciplinary case to answer. However, Charlotte Fraser needs to be made fully aware of the school based procedures and be guided on what that looks like and instructed to follow them carefully.”[21]A letter dated 12 September 2018 was drafted for Ms Hatch by Human Resources but it was not sent out until 24 September 2018 due to an administrative error: “Outcome of fact finding investigation Further to the notification of the fact finding investigation I am writing to inform you that the Trust has decided that no disciplinary proceedings will result on this occasion. However, it is considered that you should improve your conduct in respect to how you communicate with senior leaders within the school in particular where there are any concerns outside of your day to day role and responsibilities. You are required to escalate those concerns to the appropriate levels. Where there is a potential serious implication for students or staff I Page 5 of 13 would expect you to inform me at the earliest opportunity prior to you making any independent decisions. Similarly, where there are concerns regarding terms and conditions for staff I would expect you to take guidance and instructions provided by a colleague with responsibility for these decisions and once again escalate to me as a principal of the college. Your conduct will be monitored on an ongoing basis. I must also advise you that a repeat of similar misconduct or any other instances of misconduct of any kind is likely to lead to formal disciplinary action being instituted against you. We hope that our discussions will lead to a sufficient immediate improvement in your conduct such that such formal action will not be necessary.”[22]The content of that letter was then subsequently discussed with the Claimant by Ms Hatch at a meeting on 10 October 2018.[23]On 7 November 2018 the Claimant raised a grievance regarding the disciplinary investigation, and matters related to it, with the Chair of Governors. There were five grievances as follows:23.1 Length of time the investigation process was taken23.2 Process of occupational health referral23.3 Lack of recognition of stress caused23.4 Format of letter of 12 September 201823.5 The personal nature of the conversation on 10 October 2018.[24]A grievance meeting was held on 21 November 2018 and the outcome was provided in writing to the Claimant on 18 December 2018. The first two grievances were upheld, the last three grievances were not upheld. The Claimant appealed against the outcome and an appeal panel held a meeting with the Claimant on 25 January 2019 to discuss her grievance. The outcome was provided to the Claimant in writing in a letter dated 25 January 2019 which the Claimant received on 1 February 2019. The three outstanding grievances which had not been upheld were again not upheld.[25]On 10 and 11 September 2018 the Claimant submitted a request for flexible working hours to Ms Hatch referring to her previous flexible arrangement which had been in force on an informal basis. She set out her hours for the forthcoming academic year. On 2 October 2018 the Claimant submitted a formal written application for leave of absence of five days from 29 October to 2 November 2018 requesting “a flexible working arrangement”. That request was refused by Ms Hatch.[26]The flexible working request was raised by the Claimant at the end of the meeting with Ms Hatch on 10 October 2018. The meeting was to discuss the disciplinary investigation and Ms Hatch said that it was not the right time to discuss the flexible working request. The Claimant’s Trade Union representative however insisted and Ms Hatch said that the Claimant should work her contractual hours per week and could not take time off during term time.[27]On 18 January 2019 the Claimant raised a formal request for flexible working hours (page 216): Page 6 of 13 “Further to my informal flexible working request that you rejected on the grounds of no-one is able to take time off in term time and everyone must be treated the same regardless of their contract. I hereby now attach my formal flexible working request in accordance with the Good Shepherds Trust Flexible Working Policy. I have included information about my current and desired working pattern which were acceptable to both previous principals, Mr G and Mr K, both having consideration for the needs of the college and the needs I have. The reason for my request is that you rejected my formal application. The job I have is by its nature seasonal, there are very busy weeks when exams are on and less busy weeks when I am preparing for exams and doing other administrative tasks. There will be no adverse effects on the work that I do, that of my colleagues or on service delivery. … ”[28]On 20 March 2019 Ms Hatch sent a letter to the Claimant rejecting the request for flexible working hours and it included the following (page 272): “Further to my email to you of 13 February 2019 I have considered your request for a flexible working pattern carefully in your email dated 18 January 2019 and I regret to inform you that on this occasion the school is unable to accommodate your request for the following business reasons: The burden of additional costs Detrimental effect on ability to meet customer demand Inability to re-organise work among existing staff Detrimental impact on quality Detrimental impact on performance The above reasons apply in this case because the role of examinations officer is essential to the assessment for all students both internal and external. There are examinations assessments throughout the year as well as terminal examinations for year 11 and 13 students in the summer. Even with careful planning there are situations that arise that require the examinations officer to resolve. The skills and knowledge the examination officer holds together with confidential information such as exam board log-in/password details and ability to make amendments is an important aspect of the examinations officer role and an area the college does not have other personnel able/available to deal with.”[29]The Claimant appealed against the decision and an appeal meeting was held on 10 May 2019. In an outcome letter dated 20 May 2019 the five grounds were dealt with individually and reasons were given why on each ground the Claimant’s appeal was not upheld: “1. You disagree that your job requires you to be in school during the quiet weeks which you have identified as zero hours weeks on your annualised hours work pattern submission. 2. You have historically been working to the pattern outlined in your submission and believe that you have been able to fulfill your role to the full based on your understanding of your responsibilities. Page 7 of 13 3. You have offered to work flexibly from home during zero hours weeks in order to support the work of the college. 4. You believe Sarah Hatch’s offer of flexible working as outlined in her letter of 20 March 2019 would not work effectively because you would not want to work reduced hours in the weeks before external exams. 5. You do not believe that the flexible working hours policy has been enacted appropriately because you were not invited to attend a meeting to discuss your flexible working arrangements request as outlined in pages 4-5 of the policy where your request cannot be agreed. “Your line manager/principal will normally agree to meet with you to discuss your application”. Decisions of the Tribunal[30]The alleged four detriments described in the Claimant’s witness statement were summarised in the Case Management Order at paragraph 4.6 as follows: “(a) being subject to a disciplinary investigation and process. (b) the third respondent referring to the Claimant’s conduct as misconduct despite the Claimant having no disciplinary hearing. (c) informal flexible working request on 10 September 2018 being rejected. (d) formal flexible working request on 18 January 2019 being rejected.”[31]The Tribunal found as a fact that those events occurred.[32]The Tribunal considered that detriments (a) and (b) both related to the disciplinary investigation process. That process ran from 29 June 2018 until the outcome of the grievance appeal regarding the disciplinary investigation process on 1 February 2019.[33]The Tribunal considered that detriments (c) and (d) both related to the Claimant’s request for flexible working hours and the rejection of those requests. The requests started on 10 September 2018 and the process of requests and the rejection of those requests ended with the outcome of the appeal on 20 May 2019.[34]The five alleged protected disclosures are summarised in the Case Management Order at page 76 in paragraph 4.3 as follows: “(a) on 16 May 2018 in an email to Mr K and a conversation later the same day. (b) On 26 June 2018 in a conversation with Mr K. Page 8 of 13 (c) On 27 June 2018 in a telephone call to Pearson Edexel. (d) On 28 June 2018 in an email to Pearson Edexel. (e) On 28 June 2018 by forwarding an email from Pearson Edexel to the third respondent”.[35]The relevant parts (for the purposes of this case) of the definition of a protected and qualifying disclosure are set out in s.43A and s.43B of the Employment Rights Act 1996. 43A - In this Act a “protected disclosure” means a qualifying disclosure (as defined by s.43B) which is made by a worker in accordance with any of sections 43C to s.43H. 43B(1) - In this part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following: …” (b) that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which he is subject; (c) that a miscarriage of justice has occurred, is occurring or is likely to occur[36]So far as s43B(1)(c) is concerned, the Tribunal found that there was no evidence of any course of justice involved at any stage in this case and the disclosures could not fall within s.43B(1)(c).[37]The Tribunal did find however that all five disclosures were qualifying disclosures under s.43B(1)(b) for the following reasons. They were disclosures of information regarding a failure to allow pupil candidates to request a review of coursework marking. The Claimant had a reasonable belief that the disclosure tended to show a breach of legal obligations under the appropriate regulations in force which were confirmed by Edexel, the JCQ General Regulation s.5.8. The Claimant had a reasonable belief that the disclosures were in the public interest as she believed that not only the complaining pupil and complaining parent had been failed but potentially all other pupils may have been failed to be given the opportunity to review markings. That group of people was sufficiently wide to support the Claimant’s reasonable belief that the disclosures were made in the public interest.[38]The Tribunal found that the protected disclosures (a), (b) and (e) were disclosures to the Claimant’s employer under s.43C as they were made to Mr K who the Claimant reasonably believed was the principal and, if not, he was certainly the vice-principal after 4 June 2018 and also Ms Hatch who was the principal after 4 June 2018.[39]The Respondent asserted in submissions that Mr K had no recollection of the Claimant making any disclosures to him but Mr K did not provide a Page 9 of 13 statement or give any evidence before the Tribunal. The Claimant was clear in her evidence on oath that she did make disclosures to Mr K and we have no reason to doubt her evidence on this matter.[40]The Tribunal also found that disclosures (c) and (d) were disclosures to Edexel under s.43G. The Respondent criticised the Claimant for not complying with the requirements of s.43G, in particular that she had no reasonable belief in the information disclosed that it was substantially true and that she did not comply with the Respondent’s whistle blowing policy, in particular by not informing the principal first before going to an external body. The Tribunal rejected those suggestions. The Tribunal found that the Claimant did inform the principal first. She told Mr K when he was the principal on 16 May 2018 and later when he was the vice-principal on 26 June 2019. It was not unreasonable for the Claimant to believe that Mr Knight was an appropriate senior person to inform either in his capacity as principal or vice-principal. She said she sought the Respondent’s whistle blowing policy online and could not find it so she followed the JCQ policy. That also suggested a worker should inform the principal first, and she did so in the form of Mr K. The suggestions by the Respondent regarding informing the principal and not complying with the letter of the Respondent’s whistle blowing policy was putting form before substance. Taking the Claimant’s actions overall, the Tribunal found that the Claimant had complied with s.43G and the Respondent’s policy and that her disclosures (c) and (d) to Edexel were protected disclosures within s.43G.[41]Finally coming on to our findings on detriments, s.47B of the Act says: “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 had made a protected disclosure.”[42]So far as detriment is concerned the Tribunal took account of the Court of Appeal decision in the case of Ministry of Defence v Jeremiah in 1980 where the court said that: ”Detriment meant simply putting under a disadvantage and that a detriment exists if a reasonable worker would or might take the view that the action of the employer was in all the circumstances to his detriment. What matters is that compared with other workers, hypothetical or real, the complainant has shown to have suffered a disadvantage of some kind. Someone who is treated no differently than other workers even if the reason for an employer’s treatment is perceived to arise from or be connected to the act of making a protected disclosure will find it difficult to show that he or she has suffered a detriment.”[43]So far as detriment (a) and (b) are concerned which involved the disciplinary investigation process the Tribunal found that that process was carried out because the Claimant had made disclosures to the examination board. That is her protected disclosure (c) and (d) and not just because of the means by which she did so as suggested by the Respondent. She was, we found, subject of a process on the ground that she had disclosed Page 10 of 13 information to the examination board. The process was a detriment. A comparator might be KW who was not, it seems, subject to any disciplinary investigation. At any rate we heard no evidence of any such action.[44]Having found that (a) and (b) of the disciplinary investigation process detriments were on the grounds that the Claimant had made protected disclosures, the Tribunal went on to consider time limits. The Tribunal considered (a) and (b) as detriments separately from (c) and (d). There was no link between the detriments (a) and (b), and (c) and (d), as suggested by the Claimant. They were clearly separate and distinct processes both in time and in substance. The Claimant suggested that the consideration of the flexible working requests at the 10 October 2018 meeting which was considering the disciplinary investigation showed that the two matters were connected but it is clear that it was the Claimant’s Trade Union representative’s insistence which brought up the flexible working requests at that meeting and it was not done at Ms Hatch’s request. Indeed Ms Hatch said that she initially did not wish to discuss the flexible working requests at the meeting.[45]The Claimant also suggested that Ms Hatch had spoken to the Appeal Panel looking at her flexible working request appeal and that Ms Hatch may have influenced them to reject her appeal because of the disciplinary investigation matters. The Tribunal found that that was speculation on the Claimant’s part and was refuted by Ms Hatch in her evidence on oath. There was no evidence upon which the Tribunal could find or infer that Ms Hatch had sought to influence the Appeal Panel who were independent persons, that is a head teacher from another school and a governor. Accordingly the Tribunal considered (a) and (b), and (c) and (d), as two separate and distinct detriments.[46]Time limits are set out in s.48(3) of the Employment Rights Act 1996 as follows: “An Employment Tribunal shall not consider a complaint under this section unless it is presented(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or where that act or failure is part of a series of similar acts or failures the last of them, or(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”[47]Looking at detriments (a) and (b), the Tribunal found that the disciplinary investigation process ended at the latest on 1 February 2019 when the Claimant received the grievance appeal outcome. The time limit of three months in s.48(3) therefore ran from that date. The three months limit expired on 30 April 2019. The extension of time granted by the ACAS Early Conciliation process ran from 25 April to 25 May 2019. That means that the period ended on 30 May 2019. The ET1 claim form was presented to the Page 11 of 13 Tribunal on 18 July 2019. The claim in respect of detriments (a) and (b) was therefore out of time.[48]The Tribunal then considered whether it was reasonably practicable for the claim, including detriments (a) and (b) to have been presented in time and the Tribunal found that it was reasonably practicable for the Claimant to do so. The Claimant had instructed solicitors who advised her from early April 2019 and indeed assisted her to produce the Tribunal claim form on 18 July 2019. In these circumstances any ongoing internal processes was not sufficient to establish that it was not reasonably practicable and the solicitors advising the Claimant would know that.[49]As to the Claimant’s ill health which she said had prevented her from presenting the claim earlier, we saw no medical evidence about her ill health. We were satisfied that any ill health was not such as to prevent the Claimant from taking part in the several internal processes which were ongoing at the time including drafting appeals and attending meetings. Accordingly, the Tribunal found in accordance with s.48(3) that it had no jurisdiction to consider the claims involving detriments (a) and (b), that is involving the disciplinary investigation process. Those claims are therefore dismissed.[50]Detriments (c) and (d) related to the flexible working request process and that process ran from 10 September 2018 and ended with the appeal outcome on 20 May 2019. It follows that the detriments at (c) and (d) were presented within the three month time limit because the claim form was presented on 18 July 2019. However, the Tribunal found that the rejection of the Claimant’s flexible working requests was not a detriment and any other employee in the Claimant’s circumstances would have been treated the same under the provisions of s.80G Employment Rights Act 1996. That section was complied with by the 1st Respondent in the Claimant’s case.[51]Ms Hatch’s rejection dated 20 March 2019 was upheld by the Independent Appeal Panel who set out Ms Hatch’s decision and the Appeal Panel set out several grounds why the 2nd Respondent could not accommodate the flexible working requests and those grounds reflect the permissible statutory grounds in s.80G of the Act. The Tribunal found that they were supported in the letter from Ms Hatch and in the outcome of the Appeal Panel by cogent and reasonable explanations on why and how the grounds apply and why the flexible working requests were rejected and those were nondiscriminatory grounds.[52]Even if the Tribunal had found that the rejection of the flexible working requests was a detriment, the Tribunal could find no causal link between the protected disclosures and the rejections. As Ms Hatch said in her evidence, the disciplinary investigation had been completed and closed by 12 September 2018. It was implausible that Ms Hatch or the Appeal Panel would seek to disadvantage the Claimant by rejecting her flexible working requests because of those past matters and there was no evidence whatsoever to support this allegation. Page 12 of 13[53]The claim involving allegations of detriments (c) and (d) must therefore also fail and be dismissed.[54]Accordingly the claim fails in its entirety. I confirm that these are the Reasons for the Unanimous Judgment in the case of Ms C Fraser v The Good Shepherd Trust and 2 others case no. 3320552/2019 and that I have dated and signed by electronic signature.