Employment Judge Bloch QCIn person for claimantMrs V Young (instructed by Solicitor) for respondentDate 12 July 2024
JUDGMENT
[1]The claimant’s claims of automatically unfair dismissal due to protected disclosures, wrongful dismissal, breach of contract, failure to pay sick pay and detriment on the protected disclosures are out of time and therefore dismissed.[2]The claimant’s claims of race discrimination contrary to the Equality Act 2010 are out of time and therefore dismissed. In the alternative they are out as having no reasonable prospect of success pursuant to Rule 37 of the Employment Tribunal’s (Constitution and Rules of Procedure) Regulations 2013, Schedule 1. Employment Judge Bloch QC 15.10.19 ……………………………. For the Tribunal: ………………………….. Note: Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a written request is received from either party within 14 days of the sending of this record of the decision. 1 ph judgment + cm Nov 2014 wip version Case Number: 3335450/2018 2 ph judgment + cm Nov 2014 wip version
REASONS
There is no reasonable prospect of the original decision being varied or revoked. In particular, the application essentially repeats the points argued by the claimant at the preliminary hearing. If and insofar as any new points are advanced, the claimant had ample opportunity to make them at the preliminary hearing (which lasted a full day) and it is inappropriate to consider them now. Further, I can see no error of law (or fact) identified, so can see no basis on which this application can succeed. JUDGMENT having been sent to the parties on 18 October 2019 and reasons not having been requested in time in accordance with Rule 62(3) of the Rules of Procedure 2013, but which were ordered by the Employment Appeal Tribunal by order sealed on 11 August 2020 (communicated to me in circumstances of the current pandemic on 23 September 2020) the following reasons are provided: REASONS[1]On 23 April 2019, Employment Judge Henry directed that the case management preliminary hearing listed on 26 September 2019 be converted to a preliminary hearing to determine the following issue: “1. Whether the tribunal has jurisdiction.[2]Whether the claimant’s claims have been presented within the requisite time and Rule 37 and 39.”[3]Rules 37 concerns striking out all or part of a claim on grounds which include that it has no reasonable prospect of success and Rule 39 concerns the making of an deposit order (on grounds that it has little reasonable grounds of success). It may be that something had gone wrong in the typing, but paragraph 2 seems to elide two different concepts:(a) whether the claims or any part thereof had been brought within time and(b) whether the claim or part thereof should be struck out or a deposit order made under Rules 37 or 39. No objection was taken in this regard by the parties about proceeding on both bases but in any event the principal point for decision was the timing point, with the strike out application being subsidiary.[4]The claimant claimed automatically unfair dismissal due to protected disclosures, wrongful dismissal, breach of contract, failure to pay sick pay and detriment suffered as a result of protected disclosures as well as race discrimination
The background
[5]The background to this case can be briefly stated as follows:5.1 The claimant was employed by the respondent as an Area Quality Director from 12 or 13 March 2018, subject to the usual probationary period, in this case six months.5.2 On 10 August 2018 she was invited to a probationary review.5.3 There is then a (minor) conflict as to whether on 16 August 2018 the claimant was orally summarily dismissed (the respondent’s version of events) or whether dismissal occurred when she received (on 21 August 2018) the respondent’s communication dated 20 August 2018 confirming her dismissal. The latter is what the claimant contends (but in her ET1 the end date is given as 12 September 2020, which appears to be a date supported by nobody).5.4 On 26 August 2018 the claimant appealed against her dismissal.5.5 The respondent dismissed her appeal by letter dated 10 September and received by the claimant on about 12 September 2018.5.6 On 17 September 2018 the claimant notified ACAS in respect of this claim.5.7 On 18 September 2018 the ACAS certificate was issued.5.8 On 21 September 2018 the claimant sent an email to the tribunal regarding a telephone conversation which she says she had with a tribunal staff member. The heading of the letter was case number 3304195-18 Mrs T Penicela v Sanctuary Care Limited. In the email she said that she wished to amend her claim to add another respondent. She said that, as outlined in her ET1, (in the Sanctuary Care case) the respondent, Sanctuary Care Limited, had issued a detrimental reference which had had an initial and continued impact on her recruitment and subsequent employment with the new employer, HC One, the respondent in the present case. She believed that after the reference, there had been continued contact between Sanctuary Care and the respondent.5.9 She concluded the email by stating that she attached the ACAS certificate to assure the court (sic) that she had complied with the requirements for contacting Acas prior to instituting proceedings in the employment tribunal.5.10 Apparently, after that, some correspondence (which I have not seen) ensued in which Sanctuary Care objected to the addition of HC One as a respondent to that claim.5.11 In the meantime, on about 16 November 2018 (as claimed by the respondent) or 20 November 2018 (as claimed by the claimant) depending on which dismissal date is accepted by the tribunal, the deadline for issuing of the claim against HC One expired.5.12 However, it was not until 17 December 2018 that the claimant filed her ET1 in this case. That followed communication from the tribunal dated 15 December 2018 (in the Sanctuary claim), in which Employment Judge Manley ruled: “The claimant’s application to add a second respondent to this claim is refused. Witness evidence can be given about any reference to HC One. The claimant does not suggest a claim against HC One that can be joined with the present one against Sanctuary Care Limited.”5.13 It was apparently that order which gave rise to the filing of the ET1 against HC One on 17 December 2018.5.14 While the claimant ticked the “race” box in paragraph 8 of the ET1, the narrative part of the claim form is very scant in relation to claims of discrimination against the respondent. It states that at a certain meeting with the Managing Director, the claimant had had a dispute with her previous employer (Sanctuary) regarding whistleblowing and a discriminatory comment which she had received. According to the claimant’s ET1, she was employed by HC One after had told HC One of the dispute around whistleblowing and the discriminatory comment. She states that after she had commenced her employment with HC One in March 2018, she filed further particulars of detriment in August 2018 regarding the alleged negative reference provided by Sanctuary to HC One. She states her belief that around that time there was contact between Sanctuary and HC One (which is denied by HC One) which triggered her dismissal. This belief regarding a conversation is nowhere supported and nor is there anything to support her allegation that HC One, who had employed her knowing about the whistleblowing and the alleged discriminatory comment, now decided to dismiss her on that basis. However, she goes on to allege that her issues with Sanctuary, the previous employer, included whistleblowing and racial discrimination for which she believed HC One had victimised her for by automatically dismissing her. The exact meaning of this allegation is unclear. Taken at its highest, it means that the claimant was being victimised by HC One for her complaint to Sanctuary about a discriminatory comment which had been made to her when employed by Sanctuary.5.15 Before me today, the claimant said she had been subject to no incidents of direct race discrimination during her employment by HC One and added, that but for the relaying of the whistleblowing by Sanctuary to HC One, (which, as set out above, she had herself communicated to HC One before employment by them) she would still be working with HC One today.5.16 The claimant however also referred me to an email dated 18 December 2018, sent at 12.20, which is sub headed, “Statement in addition to original statement on ET1”. This was not on the tribunal file and after enquiries were made of the tribunal staff during the hearing, no such email could be found on the system. In that statement the claimant identified herself for the first time as a Black African, employed in a senior role and she made generalized points of unfair treatment in comparison to two others who she said had been treated more fairly than herself. However, the race of these two others is not identified and the circumstances she describes do not seem comparable with hers:5.16.1 her MD acted unfairly when she herself had been unfairly treated by a previous employer; and5.16.2 an Area Quality director who resigned and was invited back into her role);5.17 the claimant also claimed that she was not put on a capability performance plan or given support like another Area Director (whose race is not given) but was discriminated against by not being given such support. Again this is put forward in such vague terms as not to advance the discrimination case properly or at all.5.18 Even if I were to take the additional document into account as a part of her claim, it does not (either alone or together with the ET1) provide the most basic particulars of a race discrimination claim or even the clear allegation that she had been unfairly treated in comparison to the identified comparators (or at all) on grounds of race.5.19 As indicated above, the primary period for putting in the claimant’s claims was, taking things at best for the claimant, 20 November 2018. Her ET1 was filed three to four weeks late.5.20 The claimant gave evidence as to the reasons for her claim form being lodged late and, in summary, these were:5.20.1 She believed the time limit of three months for lodging a claim form runs from the end of exhaustion of internal remedies in an employer organisation; and5.20.2 The delay from September 2018 was due to her belief encouraged as she believed, by a member of tribunal staff) that there was no need to file a separate ET1 against HC One as she was applying for it to be added to her claim against her previous employer. In particular, she told me that the member of staff said that all she needed to do was to file an email with the tribunal.5.21 Dealing first with the Employments Right Act claims, s.111 of the Employment Rights Act 1996 (“ERA”): “1. A claim may be presented to an Employment Tribunal against an employer by any person that he was unfairly dismissed by the employer. 2. … an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal -(a) before the end of the period of three months beginning with the effective date of termination, or 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.”5.22 There is a similar provision in relation to contractual claims under Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.5.23 In relation to time limits under the Equality Act 2010, s.123, provides that proceedings may not be brought after the end of: (a) The period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable”.5.24 It is well known the time limits set out in the statutes are significant time limits and it is for the claimant to persuade the tribunal to extend those primary periods in an appropriate case.5.25 It is also well known that the reasonably practicable test under the Employment Rights Act 1996 (and the Extension of Jurisdiction Order) is a harder test to satisfy than the test of “just and equitable” under the Equality Act 2010.5.26 In relation to the latter statute it is wrong simply to look at the reason for the delay in isolation; it is appropriate to look at competing prejudices, in an appropriate case taking into account the factors applied in personal injury cases, in particular the length of and reason for the delay, the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has cooperated with any request for information; the promptness with which the claimant acted once he/she knew of the facts giving rise to the cause of action and the steps taken by the claimant to obtain appropriate advice once he/she knew of the possibility of taking action.5.27 In Department of Constitutional Affairs v Jones [2008] IRLR128, the Court of Appeal emphasised that these factors are a “valuable reminder of what may be taken into account but their relevant depends on the facts of the individual cases and the tribunals do not need to consider all of the factors in each and every case”. That qualification is pertinent to the current application.5.28 In her submissions Mrs Young first dealt with the Employment Rights Act and Contractual (Extension of Jurisdiction) claims.5.29 In relation to the first of the claimant’s reasons, ie her belief that the three months ran not from the date of dismissal but from the time that the internal procedures had been exhausted) Mrs Young reminded me that mere ignorance of a time limit does not mean in itself men that it is not reasonably practicable for the claim to be brought at the appropriate time. Here, the belief was simply not reasonable. She pointed out that the claimant had already brought, quite recently, two claims against previous employers, first, against Jewish Care and then Sanctuary.5.30 In relation to the Sanctuary claim, there had been two preliminary hearings. At the first there was (according to the claimant) a decision that the claimant’s claim was not out of time. At the second preliminary hearing the Judge referred back to that finding. It is also clear that the claimant sought union advice at different times. She had been assisted in relation to Jewish Care claim by the union and, until at least for a certain time, in relation to the claim against Sanctuary.5.31 In the current case the trades union assisted in the drafting of one of her letters. The claimant had also spoken, in the course of the current claim, to a CAB and to ACAS and had consulted the Employment Tribunal website. That website shows clearly that the three-month period runs from the date of dismissal. Mrs Young contended that the claimant presented as an intelligent and articulate person. I agree with that. In other words, the claimant had had every opportunity to take advice in relation to the start date of the three-month period and had recent experience regarding other tribunal claims and in particular time limits. It was simply not reasonable not to take any further advice but to persist in what was a wholly wrong understanding of the relevant period for bringing claims.5.32 I found Mrs Young’s submissions persuasive and I accepted them.5.33 As regards the second period of delay from 21 September until the lodging of the ET1, the following points were made by Mrs Young:5.33.1 The claimant could have taken advice at this stage too. She had accepted in cross-examination that she understood that the employment tribunal’s staff were not giving legal advice (they were simply helping her with the procedure). She also knew that the question of time limits was a serious matter. That much had been plain to her from her earlier claim against Sanctuary. I would add that in my judgment, even accepting that a conversation took place with a tribunal employee along the lines suggested by the claimant, the claimant is unlikely to have provided the employment tribunal employee with the full picture, namely that she was wishing to bring a claim against a separate employer, albeit linked to certain facts in the existing claim; it would be a bold and highly mistaken employment tribunal staff member apprised of these facts, who would tell the claimant that it was not necessary for her to file a claim against HC One.5.33.2 The email the claimant sent to the tribunal on 21 September 2018, did not really set out her claims. There was no reference to the notice claim or the claim for sick pay and nothing about race discrimination. Therefore, insofar as the claimant believed that this email was a substitute for a claim form, that belief was wholly unreasonable. That unreasonableness was exacerbated when Sanctuary resisted the addition of HC One to the claim. The claimant’s response that she was expecting that resistance to fail, was not a reasonable basis for delaying instituting separate proceedings against HC One. She maintained that if her application to add another respondent had not been a good one, it would have been rejected at the outset. That seems to assume a lot and, again, the claimant seems not to have taken the trouble to obtain advice, if not from lawyers, who may, one can understand, be expensive and not something that the claimant could afford, but at least from one of the resources referred to above. It would not have taken much time to explain that a claim against a new employer which had some facts in common with a claim against another employer would require a separate claim form, so that, at the least protectively, the claimant should file a second claim form.5.34 In all the circumstances, in my judgment at both stages the claimant’s beliefs were not reasonable. Accordingly, in my judgment, it cannot be said that it was not reasonable practicable for her to file her claim against HC One within the time limits laid out by statute.5.35 Turning to the race discrimination claims: unsurprisingly, Ms Young contended that these claims had not been properly pleaded. She accepted provisionally that an employee could be automatically unfairly dismissed because of a protected disclosure to another but made no concessions in relation to the race discrimination claim.5.36 In my judgment, given that there is no record in the tribunal file of the additional statement sheet having been received by it, and no proof that it was sent, I should make this judgment based simply on the original ET1. However, even if I were to take into account the additional sheet, it does not properly clarify the basis of any race claim. Fundamentally, there is nothing to indicate that any differential treatment was on grounds of the claimant’s race. Indeed, the claimant herself insisted that but for the protected disclosures she would have continued to be employed by the respondent to this day. She told me that she did not complain of race discrimination in the appeal process and that there was no direct race discrimination by her employer - only an inference of race discrimination when her employer did not persuade her that there was poor conduct on her behalf (justifying dismissing here at the end of her probation). This in my judgment is (in the circumstances alleged) conjecture rather than inference and insufficient to reverse the burden of proof.5.37 I am of course conscious of the many case decisions at the highest level indicating judicial reluctance towards striking out a race discrimination, or any other discrimination case, at a preliminary hearing. Reasonable latitude should be given in particular to a litigant in person and particular regard given to the reversal of the burden of proof in an appropriate case. However there are limits and I am persuaded that even if time were extended, this would be a proper case for striking out that claim as having no reasonable prospects of success. I say this in particular having heard from the claimant at length and my impression of her as an articulate and intelligent person, who if there were a proper discrimination claim would have been able to identify the basis of it properly in the lengthy particulars (and further document) filed in support of her claim as well as her oral evidence before me. The race claim is plainly an afterthought without any proper pleadable basis for it.5.38 However, the key point I must consider is whether time should be extended in relation to this claim on the just and equitable basis. In my judgment it should not be extended. I have already indicated the insufficiency of the reasons provided for what is a fairly substantial delay. As a matter of competing prejudices, I judge that it would be wholly unfair at this stage for the respondent to face a claim which is so under-particularised. It is obvious that if not struck out the claim would require to be formulated and in my judgment, based upon what the claimant told me today, this would be a dredging up, speculative exercise on the part of the claimant. It is as plain as a pikestaff that the claimant believes her real claim, the real reason for her dismissal was because of the protected disclosures. She did not seek to explain how the nature of those disclosures (ie that they related to discriminatory comments) added anything to her whistleblowing claim Indeed, in a refreshingly candid way, she told me that the race discrimination claim had not been properly formulated because it was very much a secondary claim. Having accepted that she had never been the subject of direct race discrimination by HC One, she struggled to explain on what basis HC One could be said to have dismissed her on grounds of her race, advancing her case on the tenuous and insufficiently pleaded basis of the (alleged) comparative behaviour referred to above.5.39 It does not seem to me to be appropriate or fair for the respondent to face, at this stage, such a speculative and unthought out claim which has been brought outside of the primary statutory period for such claims.5.40 Ms Young urged upon me various other points. In particular, the additional costs which the respondent would now have to undertake to respond to this new case and that seems to me to be a factor to which is tied up with the point which I have just made.5.41 For all these reasons, I conclude that the race discrimination claim should not proceed. First of all, it is out of time and I do not regard it as just and equitable to extend time. And, in any event, in my judgment it falls to be struck out as having no reasonable prospect of success. Alternatively, I would have held that the claim has so little prospect of success that it would have been appropriate to order the making of a deposit in order to be able to proceed with it to a hearing.5.42 Ms Young urged upon me to strike out the other claims (in addition to being out of time) on grounds of these claims having no reasonable prospects of success. While I can see these claims appear to be weak, I must take into account the fact that the claimant has not yet been allowed to produce evidence in support of her claim and it would be wrong of me at this stage to conclude that they had no reasonable prospects of success. Nor am I in a position to say that they had little prospects of success and that the making of a deposit order is appropriate.5.43 Accordingly, despite the articulate way in which the claimant argued her case today, I concluded that I must strike out these claims on the basis set out above. EMPLOYMENT TRIBUNALS Claimant: Mrs T Penicela Respondent: HC-One Limited Heard at: Watford Employment Tribunal On: 8, 9, 10, 11 July 2024 Before: Employment Judge Tuck KC Mr P Maclean Mr P Miller Appearances For the claimant: In person. For the respondent: Mr Singer, counsel. Reserved Judgment The claimant’s claims fail and are dismissed.[1]By an ET1 presented on 17 December 2018, following a period of early conciliation between 17 and 18 September 2018, the claimant presented complaints of unfair dismissal for making a protected disclosure, detriments for making protected disclosures, victimisation, wrongful dismissal and unlawful deductions from wages.[2]The claimant was employed by the Respondent as an Area Quality Director between 12 or 13 March 2018 and August 2018 (the eƯective date of termination being said by the Claimant to have been 22 August and by the Respondent to have been 16 August 2018). The claimant says that she was dismissed and subjected to detriments because she had made a protected disclosure to, and complaint of discrimination against, her previous employer, Sanctuary Care Limited (“Sanctuary”). Sanctuary had provided a reference to the Respondent relating to the claimant on 21 February 2018 saying that she had been employed by them from 14 August 2017 until 9 January 2018, and under a heading of “reason for leaving” Sanctuary said that the claimant was “dismissed”.[3]The procedural history of this claim is lengthy. On 23 April 2019 Judge Henry directed that a Preliminary Hearing listed for 26 September 2019 be converted to consider whether the claimant’s claims had been presented in time such that the tribunal had jurisdiction to hear them, and whether they should be struck out or a deposit order made because they had no or little prospect of success. In a judgment dated 18 October 2019 EJ Bloch QC held that they were out of time and that any complaint of race discrimination should be struck out as having no reasonable prospect of success.[4]The claimant appealed to the EAT by a Notice of Appeal presented on 28 November 2019. Permission to appeal was not granted and a hearing under rule 3(10) of the EAT Rules 1993 took place on 22 April 2021. Amended grounds of appeal were served on 30 April 2021, and permission was given for the matter to be set down for a full appeal hearing. On 2 August 2021, HHJ Stacey (as she then was) ordered, by consent, that the appeal be allowed on all grounds and the judgment of Judge Bloch QC be set aside. This tribunal understands (on the basis of submissions from the Respondent) that essentially the Respondent agreed that Judge Bloch, in considering time limits, had failed to consider the dates of post termination case complained of when ruling the complaint was out of time.[5]The matter was therefore remitted to the ET. A Preliminary Hearing took place (by telephone) on 17 January 2023, and the case summary and orders were sent to the parties on 20 January 2023. Other litigation[6]The claimant pursued proceedings against Sanctuary and a substantive hearing took place over seven days in February and October 2020 (case number 3304195/18). Judge Lewis (sitting with members) found that the claimant had made a qualifying protected disclosure to Sanctuary on 13 September 2007 when she set out concerns that the level of senior staƯ on duty was such that it was unsafe and an additional appointment was required. That tribunal also found the claimant had made a complaint of race discrimination on 11 January 2018 when she reported that her manager had said to her that she did “not look like a Regional manager”. The claimant’s claims that her dismissal was because of the protected disclosure or because of the protected act were dismissed.[7]The claimant appealed that judgment to the EAT and on 6 October 2022 (2022 EAT 181) one ground of appeal was allowed and the case was remitted back to the Lewis tribunal to give further consideration to whether a manager’s report about the claimant had been tainted by the protected disclosure and if so, whether that taint impacted on the dismissal such that the decision to dismiss was tainted. A remitted hearing took place from 1 – 3 November 2023.[8]Following the further hearing after remission the claimant’s claim of automatically unfair dismissal was again dismissed as the tribunal concluded that the protected disclosure of 13 September 2017 played no part whatsoever in the claimant’s dismissal.[9]The claimant told us in this hearing that the second Lewis judgment is currently the subject of an appeal before the EAT. Application to amend[10]At the outset of this Hearing, the tribunal went through, with the parties, the issues as recorded in the Case Management Summary prepared by EJ Maxwell after a Preliminary Hearing on 17 January 2023 (at which the Claimant was represented by counsel). The tribunal sought clarification on a number of factual matters.[11]The tribunal then retired to commence reading, whereupon the tribunal noted that the Claimant’s statement contained a brief paragraph alleging direct race discrimination. The statement read “I was treated less favorably than a comparator in the same role (another Quality Assurance Director for the East region) who left after what she claimed as unfounded capability issues a few months before (June 2018) but was called back and reinstated which never happened with me”. There are no further details of the complaint.[12]The tribunal asked the parties to return, and the claimant was asked if she considered this complaint to be contained within the ET1; save for having ticked the box on the ET1 form indicating a complaint of race discrimination, the claimant referred to nothing more.[13]There being no complaint of direct race discrimination before the ET, Judge Tuck KC told the claimant that if she sought to pursue such a claim, she would need to make an application to amend. She did so.[14]The Claimant told us that she was the only black quality assurance manager at the Respondent, and that her counterpart in the East region, at a team meeting, complained that untruthful concerns about her performance had been raised, leading, in around June 2018, to her resigning. The claimant said that some time after the comparator’s circumstances were “looked into” and she was reinstated. The claimant was unable to tell us the name of the comparator but said it would be known to the Respondent. While she had not raised this matter in her ET1, she had mentioned it in an email sent to the tribunal on 18 December 2018. The claimant did not have a copy of that email on day one; she provided the email and substantive document to us on the third day of the hearing -after the application to amend had been determined by us. (Having the full document earlier would have made no diƯerence to the outcome of this application.)[15]In his judgement following a hearing on 26 September 2019, Judge Bloch QC had recorded the following: “5.15 Before me today the claimant said she had been subject to no incidents of direct race discrimination during her employment by HC One and added, that but for the relaying of the whistleblowing by Sanctuary to HC One (which, as set out above, she had herself communicated to JC One before employment by them) she would still be working with HC One today. 5.16 The claimant however also referred me to an email dated 18 December 2018 sent at 12.20 which is sub headed “statement in addition to original statement on ET1”. This was not on the tribunal file and after enquiries were made of the tribunal staƯ during the hearing no such email could be found on the system. In that statement the claimant identified herself for the first time as a Black African, employed in a senior role and she made generalized points of unfair treatment in comparison to two others who she said had been treated more favourably than herself. However, the race of these two others is not identified and the circumstances she describe do not seem comparable with hers :5.16.1 ….5.16.2 an Area Quality Director who resigned and was invited back into her role. 5.17 ….. 5.18 Even if I were to take the additional document into account as part of her claim, it does not (either alone or together with the ET1) provide the most basic particulars of a race discrimination claim or even the clear allegation that she had been unfairly treated in comparison to the identified comparators (or at all) on grounds of race.”[16]The claimant told us (and while she had no evidence of the same, we accept) that her complaint of direct discrimination was mentioned when this matter went to the EAT. As set out above, the judgment on appeal was by consent and no reasons were given.[17]The claimant did not know why a complaint of direct discrimination was not raised at the PH in January 2023. The order sent on that date stated at paragraph 6m “the claims and issues as discussed at this preliminary hearing are listed in the Case Summary below. If you think the list is wrong or incomplete, you must write to the Tribunal and the other side by 31 January 2023. If you do not, the list will be treated as final unless the tribunal decides otherwise.” The Claimant told us that she did not notice the omission of any complaint of direct discrimination, having noted that the Equality Act was mentioned (which it was in relation to the complaint of victimisation.)[18]The respondent resisted the application, reminding the tribunal of the approach set out in Vaughan v Modality Partnership [2021] ICR 535, particularly paragraphs 12-27, and of the fact that date of the application to amend is the date to consider in relation to time limits, as per Galilee v Commissioner of Police of the Metropolis [2018] ICR 634. Mr Singer submitted that the nature of this amendment was significant and bore little relationship to the facts already in issue. He said that the amendment was being made only when the matter was raised by the Tribunal, on the first day of the hearing when there is no reason why it could not have been dealt with very much earlier in these protracted proceedings. Most fundamentally however, he said that the prejudice to the respondent was significant because it was still not aware of the identity of the alleged comparator (enquiries made since receiving the claimant’s statement last Thursday had not cast any light on this), and that in the six years since the time on which the act is alleged, there have been significant changes to management and HR teams which made it diƯicult to take instructions. Furthermore the factual witness who will appear in this hearing on behalf of the Respondent who might have some knowledge of this matter is on holiday and out of the country until tomorrow. Determination of the application to amend[19]The claim form does not contain any allegation of direct race discrimination. That the tribunal would not consider the form to contain any such allegation was made clear in the Preliminary Hearing on 26 September 2019. Furthermore, Judge Bloch QC in that hearing explained that the brief reference to this allegation in the email of 18 December 2018 failed to give suƯicient particulars of the case.[20]The tribunal notes that the claimant has represented herself in substantive hearings (against Sanctury Care Limited) in January and October 2020 and again in a remitted hearing following a successful appeal to the EAT in November 2023. The tribunal infers from this that the claimant is aware of the importance of accurate lists of issues in preparing for and conducting hearings. The tribunal considers that at the very latest, an application to amend to make clear any claim of direct discrimination which the claimant wanted to pursue, should have been made in advance of or alternatively at the case management Preliminary Hearing of 17 January 2023. Moreover, the omission ought to have been obvious to the Claimant when she received the record of the case management hearing and she should have set out in writing her view that there was an omission – or made the amendment application – by 31 January 2023. The claimant has however done nothing about this for the last 18 months, and even in her statement has not given full particulars of her complaint. She says nothing whatsoever as to who is alleged to have made a decision in relation to the comparator, who made the decision/s in relation to her and how they were materially influenced by race.[21]The tribunal accept that the Respondent would suƯer significant prejudice in having to reply to an unparticularised allegation dating from six years ago. It accepts that there have been changes of management and HR personnel (noting that both the witnesses who are due to appear before us in this hearing are now former employees).[22]Whilst the claimant would suƯer prejudice in not being able to pursue a complaint of direct discrimination, we do not consider that prejudice to be significant. The primary complaints relate to how the claimant was treated in having her employment terminated and not being permitted an appeal or grievance hearing. These are matters which will be aired fully in considering her complaints of whistleblowing dismissal and detriments, and victimisation. We consider had the treatment of the other Quality Assurance Director been a central complaint, it would have been in her ET1 and she would certainly have noticed its omission from the hearing on 17 January 2023 and the case summary prepared thereafter. Evidence and documents[23]We heard evidence from Mrs Amanda Scott who worked as Managing Director for the South Region with the Respondent between 2017 and 2019, Mrs Samantha (Sam) Jacob who was employed by the Respondent from November 2017 until October 2019 and was the Claimant’s line manager from July 2018, and from the claimant.[24]The claimant wanted additional time on the first day of the hearing to ensure she had read all the bundle which she had received in its final format late the previous week. In order to accommodate this, and have Mrs Scott’s evidence on Tuesday and Mrs Jacob’s evidence on Wednesday (each only being available for a single day); the claimant’s evidence was therefore given on Tuesday afternoon and Wednesday morning. We were grateful to the parties for agreeing to this pragmatic timetabling.[25]We were provided with a joint bundle of documents consisting of 236 pages to which the Respondent added pages 237 – 247. On days two and three the claimant provided us with additional clips documents which we labelled C1, C2 and C3. The Respondent also provided a brief chronology and cast list.[26]We read such documents as we were directed to and were referred to in the statements. Where we have not made reference to matters about which we heard evidence, it is not because of oversight, but because we have set out herein the matters required to determine the facts before us.[27]We note the observation made by the Lewis tribunal that in her case against Sanctuary the claimant appeared to believe that as she had been dismissed for, in eƯect, incapability, she needed to prove her competence to the tribunal. We have found the same to be true in the hearing before us. As we expressed to the parties, we were not determining a claim of ‘ordinary’ unfair dismissal. The issues require us to consider whether the claimant has proven, on a balance of probabilities, that her dismissal was because she had made a protected disclosure, whether she had suƯered detriments because of a protected disclosure and/or whether her dismissal was because she had done a protected act. (This summary does not of course replace the full list of issues to which we have had careful regard).[28]Having finished the evidence on the afternoon of day 3, we permitted the parties to return at lunch time on day 4 so that written submissions could be produced. Both parties produced written arguments and made oral submissions for which we are grateful. We were particularly grateful to the claimant for the manner in which she conducted the hearing with diligence and curtesy in the face of evident strain. Claims and Issues[29]At a case management preliminary hearing on 17 January 2023 Judge Maxwell identified the issues to be determined by us; these were in our bundle at pages 34-[36]We sought further clarification at the outset of the hearing. In relation to the protected disclosure made to Sanctuary Care on 13 September 2017, the Respondent expressly accepted the finding of the Lewis Tribunal in case number 33041/95 that this was a qualifying protected disclosure.30. In relation to the victimisation claim the protected act relied upon was the complaint to the ET against Sanctuary - that the provision of the “dismissal” reference by Sanctuary to this Respondent on 21 February 2018 was an act of victimisation. The claimant gave further particulars to Sanctuary of that allegation in the course of her litigation against them on 8 August 2018. It was unclear as to the precise date in February 2018 on which that claim of victimisation against Sanctuary was presented to the ET, but nothing turned on this diƯerence.31. In relation to the claim for unauthorized deductions from wages, the parties agree that the sum in dispute was £456.56.32. Finally in relation to the claim of wrongful dismissal, the claimant accepted that she had been paid her salary and a sum in lieu of her benefit of the provision of a car for her notice period. While she did not formally consent to withdrawing this claim, she accepted that it had been fully satisfied.33. The tribunal directed the parties to address the issues relating to liability in their evidence before us, with the issue of remedy to be determined thereafter if necessary. We did however give permission to Mr Singer to call some evidence relating to mitigation during Mrs Scott’s evidence as it was not clear that she would be available on any later date. FACTS34. The Respondent operates a large number of care homes nationally, oƯering residential, nursing and specialist dementia care – mostly for older people. The claimant has a long history of managerial positions in the care sector, and is educated to masters level.35. Having applied for employment with the respondent, the claimant attended a face to face interview with Mr Liam Jennings, then a Regional Quality Manager and Ms Jo Needs, an Area Manager on 8 February 2018, and then a second telephone interview with Mrs Amanda Scott on 13 February 2018. After these interviews the Respondent made an oƯer to the claimant of employment in the position of Area Quality Director “subject to the Company obtaining a satisfactory DBS/PVG along with satisfactory references”. The oƯer was confirmed in a letter of 14 February 2018. 36. On 21 February 2018 the Claimant’s former employer, Sanctuary Care provided a reference confirming that she had been employed as a Regional Manager from 14 August 2017 until 9 January 2018. As set out above, under “reason for leaving” it said “dismissed”. The Respondent’s “on boarding” team emailed the claimant upon receipt, and on 22 February 2018 the claimant replied saying “I can confirm that I resigned from Sanctuary on 9th January 2018 due to the dispute which remains as I refused to sign a settlement agreement.” The claimant told us that she told the respondent’s HR that the dispute was about disclosures.[37]The Sanctuary reference was sent by the respondent’s HR team to Mrs Scott, who had a telephone call with the claimant on 28 February 2018, following which Mrs Scott emailed HR saying “I have spoken with Tee this afternoon to understand this better. She is planning to send over some of the detail that support that she had resigned rather than being dismissed”. The claimant emailed on the same day including a redacted copy of her resignation letter to Sanctuary care which the claimant had submitted on 9 January 2018. The claimant provided to the tribunal a full, unredacted version of the resignation letter in the course of this hearing. The redacted copy of the letter retained information about having made reports about staƯing levels (it did not say they were “disclosures” or complaints); it redacted the sentence which said that the claimant considered the information about staƯing to be a “disclosure” which had led to a “detriment”. The resignation letter made no reference to race discrimination.[38]Mrs Scott on receipt of this document asked the claimant for a face to face meeting. This took place on 6 March 2018 at a respondent care home in Tower Bridge. The claimant says that she told Mrs Scott at the meeting on 6 March 2018 that she had made a protected disclosure at Sanctuary, and that she had complained that in her final meeting at Sanctuary she had received a comment she considered to be discriminatory on grounds of race. Mrs Scott says that the claimant did not tell her either that she had made a protected disclosure nor that she was “litigating against them” or had race discrimination complaints. We note that the Claimant did not assert that she told Mrs Scott that she had complained that the reference which Sanctuary had provided to the respondent was an act of victimisation.[39]Mrs Scott’s evidence to this tribunal was that there is a reasonably high turnover in the care sector, and that employees may move around before finding an employer which is a good “fit” for them, such that there is no stigma about not fitting in with a particular employer. She also referred to the acute shortage of staƯ in this sector, not only nursing and caring employees, but also more broadly.[40]Mrs Scott was satisfied after the meeting on 6 March 2018 that it was appropriate to continue with the Claimant’s recruitment; she emailed HR saying “I have a much clearer understanding of the events leading up to her probationary period not being extended and feel satisfied with these additional references that it is safe and appropriate to go ahead and hire”.[41]We do not accept the claimant’s evidence that she expressly told Mrs Scott on 6 March that she had made a protected disclosure about staƯing levels to Sanctuary, nor that she had suƯered a racially discriminatory comment. We note that the claimant redacted from her resignation letter the words “protected disclosure” and “detriment”, and that it made no reference to race discrimination. Orally she told us that she was careful not to be critical of her former employer, a position reflected in her correspondence with the respondent. We find this to be more consistent with the account Mrs Scott gave, that while she was aware that the claimant considered she had been treated unfairly by Sanctuary and was in dispute with them about her dismissal – but that she did not expressly say she considered herself to have been unfairly dismissed due to protected disclosures or to have suƯered discrimination. To the extent that there may have been a discussion about staƯing levels during the 6 March interview, we accept that Mrs Scott took from this that the claimant was asserting that she had not been treated fairly by Sanctuary, and that the claimant had a “good understanding of care”.[42]In any event, the tribunal accept the evidence of Mrs Scott that knowing that a protected disclosure had been made would not have resulted in her refusing to employ the claimant – that it is the duty of nursing staƯ to make protected disclosures when necessary. We accept this because there was written reference in email exchanges about the claimant not having signed an “agreement” with sanctuary, and it was evident from the resignation letter and “dismissal” reference that there was some dispute between the claimant and Sanctuary. While Mrs Scott wanted to know about this, she nevertheless went on to confirm the claimant’s recruitment once satisfied that the claimant had a “good understanding of care” and would be a safe practitioner.[43]The Claimant says her employment commenced on 12 March 2018 and Respondent says 13 March 2018 (nothing turns on this diƯerence which we have not therefore considered necessary to resolve). The claimant had a two week induction period, and initially reported to the Regional Quality Director, Mr Liam Jennings.[44]The Respondent has a probationary procedure which states that all new employees will be subject to a probationary period of six months. In relation to monitoring it states that “supervision / probationary review meetings.. should take place at intervals of not less than two months”. The policy expressly states that the company’s capability procedure does not apply during the probationary period. At approximately six months into an employee’s employment their line manager should invite them to a 6-month probationary appraisal meeting and carry out a full performance review. The three possible outcomes are, for employment to be confirmed, a further probationary period of up to 3 months be set with required standards being made clear, or probation being unsuccessful and employment terminated on notice.[45]On 3 July 2018 a “Supervision/1:1 Record” was completed by Mr Jennings, which starts saying “Tee commenced with HC-One on March 12th, this meeting was requested by RQD to review performance to date”. RQD stands for Regional Quality Director – i.e. indicating that Mr Jennings had requested the performance review meeting as he was about to leave his role in the South region to take up a diƯerent post in the company.[46]The notes of supervision prepared by Mr Jennings were, according to the claimant, provided to her by email two weeks later, and she told us that she took issue with a number of the matters recorded therein on 19 July 2018 by sending an email. We did not have a copy of that email before us despite the claimant specifically having requested a copy of this from the Respondent. The record we find, indicates a balanced review giving specific instances of work which was being done well and areas where improvement was needed based on feedback from home managers and the Area Director. (The working relationship between the Area Director and Area Quality Director was described by Mrs Scott as being like a work ‘marriage’ requiring close co-operation; a description which the claimant agreed with). It is apparent that the claimant’s communication with her AD, and her balance between administrative tasks and being seen on the floor supporting and mentoring the team were both recorded as areas where the claimant needed to improve. The claimant was specifically noted as giving good clinical support.[47]While the probationary policy says that there should be supervisions / performance reviews at least every other month, the one of 3 July 2018 is the only document produced by the Respondent covering the five months of the claimant’s employment.[48]At some point in July 2018 Mrs Sam Jacob took over Mr Jenning’s role as RQM. Mrs Jacob told us that she had a handover from Mr Jennings – though we have no notes of this. Mrs Jacob had an initial meeting with the claimant in July 2018 (neither were able to recall the date). There is a stark dispute of fact as to the content of that meeting, and no contemporaneous record was made.a. The claimant’s account of this meeting was that Mrs Jacob said “she had been informed about my situation with my previous employer and went on to explain how we have all been there”. The claimant said that Mrs Jacob told her that her previous employer had believed a complaint made against her by Coventry Local Authority which had led to her employment of 10 years’ being terminated and her signing an agreement. The claimant said that Mrs Jacob started asking why the claimant had not signed an agreement with her former employer – but at that point they were interrupted by the arrival of the Home Manager. Whilst no information about this July meeting is in the Claimant’s ET1, it is included in the “additional information” which the claimant sought to email to the ET on 18 December 2018 in which she says that Mrs Jacob said she had been “automatically and unfairly dismissed” and had been “very bitter” about this.b. Mrs Jacob denied entirely that she had said this: her account was that prior to taking up employment with the Respondent in November 2017, she had 26 years’ service. Her former employer was facing some financial diƯiculties and she was headhunted by the Respondent, so she resigned – and there was no settlement or compromise agreement. Mrs Jacob told us that while she had worked with Coventry local authority (and many others having worked all over the country) she has never been subject to a complaint by that authority or any other. She was adamant that she was completely unaware of the Claimant’s work history / whether the claimant had been oƯered an “agreement” by a former employer, or what any dispute with a former employer might have been about. When asked by the judge why she could be certain of this when she had been frank in not recalling various details from 6 years ago, she said that after the claimant’s dismissal by the Respondent, she was told (she does not recall by whom) that the claimant had also made a claim against her previous employer. Mrs Jacob very clearly recalled being very surprised and not having known of this before.[49]As to the content of this meeting we prefer the evidence of Mrs Jacob. We accept that Mrs Jacob worked for the employer before the respondent for some 26 years’, and her account that she had been headhunted at a time when the employer was facing financial stresses. She had no reason to be untruthful about this. Nor did the tribunal think it likely she would have used the specific language of “automatically unfairly dismissed” and demonstrated that she was “very bitter” about her former employer. She struck this tribunal as a frank witness who admitted when she could not recall matters and was clear about what working practices she followed, and had a tendency to very much favour seeing substance over form (at one point telling the claimant “potato / patato” when the claimant pointed out a diƯerence in language. Furthermore she was candid about having entered into a settlement agreement after 2019 – information she did not have to volunteer. We inferred from this that had she left her post of 26 years under a settlement agreement she would have told us this was the case. We also accepted Mrs Jacob’s evidence that she did not access the personnel record of the claimant and was completely unaware of the exchanges about the recruitment process the claimant had undergone.[50]The claimant did not persuade us, on a balance of probabilities, that she had told Mrs Jacob either about her protected disclosure made to Sanctuary, nor about her complaint of victimisation concerning the reference Sanctuary had provided to the Respondent.[51]Mrs Jacob was only the claimant’s manager for around 5 weeks. In this period she reached a decision that concerns Mr Jennings had raised about the claimant’s lack of skills in communication and ability to coach and mentor home managers, and her attitude toward work (for instance in leaving home walk arounds mid way through and spending too much time in the oƯice / too little on the ‘floor’) were mirrored in her own interactions with the claimant. Mrs Jacob said she was in the presence of the claimant on a number of occasions at diƯerent care homes and that they spoke regularly on the telephone, between 3 and 5 times per week. She also said that she had received feedback about the claimant from the Area Director who worked closely with the Claimant and from home managers. She said she would ask open questions of the home managers about their week and the support they had received, and that she received a pattern of negative feedback about the Claimant from them, and from the Area Director. Mrs Jacob discussed her concerns with Mrs Scott – her manager whom she had phone calls with several times per day. Mrs Jacob considered that the claimant had valuable skills around report writing and analysis, and in August 2018 made enquiries as to whether there were any vacancies within the audit team, but there were not. Mrs Scott in her evidence also told us that she considered the claimant’s report writing to be strong and encouraged enquiries to be made within audit.[52]The claimant said that the only one to one meeting she had during her employment with Mrs Jacob was their introductory meeting in July 2018, and that she received no other feedback from her– formal or otherwise. The claimant is clearly correct that she did not have any scheduled, formal one to one meetings with Mrs Jacob other than their introductory meeting; we do not however accept that there was no feedback whatsoever.[53]On 10 August 2018 Mrs Jacob wrote to the claimant inviting her to attend a probationary review meeting on 16 August 2018. By this date Mrs Jacob had agreed with Mrs Scott, and taken advice from HR, that the claimant’s employment would be terminated prior to the end of the probationary period.[54]The letter of invitation to the meeting of 16 August 2018 said that the meeting was scheduled to take place in the Tower Bridge care home at 11.30am. The accounts of the meeting from the claimant and Mrs Jacob diƯer significantly.a. The claimant says that Mrs Jacob arrived late at Tower Bridge so they agreed to meet at 12.30pm; at that point the claimant oƯered her the loan of her umbrella as Mrs Jacob went outside for a cigarette. While Mrs Jacob was outside the claimant received a call from her 14 year old son saying he had a stomach ache. The claimant decided she had to go home to her son and left the building. She told Mrs Jacob on her way out of the building that she had to go home, retrieved her umbrella and left saying she would contact Mrs Jacob that afternoon. At 11.58 she sent a text to Mrs Jacob saying “I’m getting on the train now but will call once I have dealt with my child emergency. I’m sorry and hope we can still do this meeting”.b. Mrs Jacob prepared a note of the meeting of 16 August 2018 shortly thereafter, and emailed it to HR on 23 August 2018. Mrs Jacob said that this was the best account of the events, having been prepared at the time. She said that when she arrived at Tower Bridge the claimant was in a resident lounge (clarified to us as being empty of residents) working on her laptop, and that after exchanging pleasantries: “I informed Tee that I was not there to give her good news and that she had unfortunately not been successful in her probation. I informed Tee that I would like to give her some feedback as there were some positives along with some constructive criticism that I would like to discuss, however from today she would no longer be employed by HC -One. I informed Tee that it had been agreed that she would receive one month’s pay to give her the opportunity to find another job. At this point Tee requested that I give her ten minutes to ‘gather her emotions’ I agreed and told her I would go outside for a cigarette – Tee oƯered me her umbrella as it was raining to which I thanked her. I informed Tee that when she was ready to receive the feedback to call me and I would come back up for further discussion. Approximately 2 minutes later whilst stood outside Tee came out and informed me that she had an emergency – that her child was unwell and she had to leave. I informed Tee that I was very sorry about her child and enquired as to the age and what the problem was – she stated that her child was 14 and had a stomach ache. I asked Tee if she lived locally and she informed me she lived at Potters Bar. Having no knowledge of the area I was asked if she would be returning as I would really like to give her feedback face to face, to which she told me should would ring me. I then re-iterated “Tee you do understand that as from today you will not be employed by HC-One, could we not just have the conversation before you go …. ”[55]The claimant denies that the meeting started on 16 August 2018 and denies that she was told she was dismissed. She says that she had no idea of her dismissal until receiving, on 22 August 2018, a letter of dismissal dated 20 August 2018; her car had been repossessed by the lease company the previous day (a Tuesday) but she had been given no reason for this repossession.[56]Both Mrs Jacob and Mrs Scott told us that Mrs Scott arrived at the Tower Bridge home (co-incidentally, not by design) shortly after the claimant had left, and while Mrs Jacob was still outside. Mrs Jacob expressed her shock to Mrs Scott about the claimant leaving so abruptly in the circumstances she had, describing her view of the claimant’s behaviour as being “bizarre” in leaving because of a “stomach ache” of a 14 year old, when she had just told the claimant her employment was to terminate. Mrs Jacob had formed a view that a stomach ache of a 14 year old did not seem to her to be such an acute emergency as to require an immediate return home, in the middle of such an important meeting.[57]Mrs Jacob’s note goes on to record receiving the message at 11.59 from the claimant about “getting on the train now”, and says she received a text later saying “I cannot ring for feedback now as I am not very well and have a headache”, and the next morning a text saying “unfortunately didn’t have a good night still not feeling well today I have made a GP appointment.” The claimant provided copies of the first and third of these messages, but categorically denied sending the second.[58]At 13.55 hrs on 16 August 2018 the claimant emailed Mrs Jacob and the Area Director saying “just got back, sorry we couldn’t do the performance review meeting today. Unfortunately I cant work today and cant do our meeting today. I am also now feeling unwell and will need to get back to tomorrow once I’m feeling better. I have cc’d [the AD] to let her know of my unavailability today”. The claimant provided a copy of the text sent on Friday 17 August 2018 about having made a GP appointment, and on Monday 20 August sent a further text to Mrs Jacob saying “the GP took my BP on Friday and it was very high and was given a new prescription and told to rest….. I will let you know on Wednesday, apologies, Tee”.[59]The tribunal spent time reviewing these starkly diƯering accounts and looking at the very limited contemporaneous messages and the accounts both Mrs Jacob and the claimant each wrote in the days after 16 August 2018. Ultimately, there was a direct conflict of the oral evidence each gave, and both were very confident in the accuracy of their own accounts. There was no room for misunderstanding; one or the other was providing an account to the tribunal which was inaccurate. We concluded that we preferred the account of Mrs Jacob; she asked rhetorically why she would lie about this. It is clear from her evidence and that of Mrs Scott that she had made the decision to terminate the claimant’s employment, and had also checked that with HR prior to 16 August 2018. It is also clear that she attended the Tower Bridge home on that day in order to deliver that message. From the tenor of her evidence we did not form the view that she would have avoided delivering a diƯicult message or delivered the message in a manner which was ambiguous. It is clear that she had two exchanges with the claimant on 16th August – on her arrival and in the car park as the claimant was leaving. We considered it more likely than not that she did tell the claimant that her employment was to end that date, and consider it likely that the claimant felt somewhat shocked and possibly traumatised by receiving that message – because this was very reminiscent of what had happened to her at Sanctuary. This circumstance, in the view of the tribunal, may well have led to the claimant being ‘in denial’ as to what she had been told.[60]On Monday 20 August 2018 Mrs Jacob wrote a dismissal letter to the Claimant. She stated therein “At the meeting yesterday [sic] I confirmed that you have not successfully completed your probationary period and would be put on gardening leave with immediate eƯect. You then left the meeting as you said your son was poorly. I am sorry you had this family emergency and hope that your son is feeling better.” Mrs Jacob acknowledged that the reference to “yesterday” was an error – she had prepared a first draft on 17 August; and also that “gardening leave” was a mistake as payment would be made in lieu of notice – as set out later in the letter. The letter gave details of how to appeal the decision to terminate employment.[61]The claimant received this letter on Wednesday 22 August 2018; she emailed Mrs Jacob at 17.26hrs attaching a sick note to the period up to 5 September, and also “acknowledging receipt of your dismissal letter dated 20 August.” She said that the meeting had never happened, and that when Mrs Jacob had arrived them had agreed to start the meeting at 12.30 whereupon Mrs Jacob took her umbrella and went outside to smoke. She then records having left “due to a family emergency”.[62]Mrs Jacob was asked by the tribunal why she had not replied to the Claimant’s texts between 16 and 22 August 2018 confirming that she had been dismissed. She told us that she found the Claimant’s behaviour to be “bizarre” and that in her career she had encountered many responses to dismissing staƯ, from arguing to accepting, but never a complete denial when she had stated clearly, at least twice, that the claimants’ employment was terminating. She said that she found the claimant to be disingenuous such that she thought communication should go from HR / in formal letters.[63]Mrs Jacob replied to the email of 22 August by letter of 24 August. This repeats her account of 16th August (including receiving the message about the claimant having a “headache”. She repeats that any appeal should go to HR. This eƯectively ended Mrs Jacob’s involvement with the Claimant. We accept her evidence that as at 24 August 2018, she was completely unaware of the Claimant having worked for Sanctuary, or of any dispute the claimant was in with her previous employer.[64]The claimant also emailed HR on 22 August 2018 with various attachments asking them to be considered as part of her appeal, saying “I will send the full appeal letter in due course.” The claimant emailed on 27 August 2018 including various attachments including a letter of appeal dated 26 August 2018. The appeal letter takes issue with the assertion that she was told of her dismissal on 16 August 2018, but also says “most importantly, although I had been given quite vague feedback in my previous review with Liam which I thought had been cleared (my email to Liam dated Thursday 19 July – no response was given ), no SMART objectives were set, no performance improvement plan was in place and at no point have I been provided with support to help me improve in respect of any alleged shortcomings. …”. The claimant chased on 27 August for an acknowledgement of receipt of her appeal documents, and received a reply from HR on 28 August “I can confirm that this has been forwarded to the appropriate person”.[65]On 3 September 2018 the claimant emailed “additional information for my appeal” – largely about the events of 16 August. On 5 September 2018 the claimant emailed the respondent saying that she had undergone a review with her GP and was fit to return to work, asking this be passed on to the person dealing with her appeal. The same day an HR administrator replied saying that Amanda Scott was handling the appeal, and telling her “you should receive a letter shortly inviting you to an appeal hearing”. The manager of that administrator emailed her by return asking “have you sent this letter yet as we are not holding an Appeal – we are responding in a letter”. Mrs Scott told us that the advice she received from HR was that there was no obligation to hold a meeting, and she could respond in writing.[66]On 10 September 2018 Mrs Scott wrote to the claimant, saying that she was responding to letters of 22nd and 24th August 2018, and that the “only reason given for the appeal is that you deny a meeting took place” on 16 August 2018. Mrs Scott found that the meeting had taken place as described by Mrs Jacob and therefore dismissed the appeal. There was no engagement whatsoever about performance concerns; it is not clear to this tribunal whether Mrs Scott in fact had sight of the letter of appeal dated 26 August 2018 – a document not listed in the letters she was responding to. In evidence before us, some six years after the events in question, she could not specifically recall what had been before her.[67]On 17 September 2018 the claimant sent to the respondent a detailed letter of complaint. She said in that “when I joined HC -One I was very open at both interview and my meeting with you that I did not leave Sanctuary care on good terms. I was very clear at interview with Liam and Jo that I would not speak negatively about other organisations but did mention there was a disagreement around my leaving …” and she goes on to describe the 6 March 2018 meeting. She does not in this letter mention either having passed on details of protected disclosures or having made a claim of victimisation or race discrimination against Sanctuary. She ends the letter saying that she felt strongly that “something must have triggered that need and urgency for my immediate dismissal”, and states “I strongly feel that I suƯered continued detriment I had sustained with Sanctuary due to the negative reference including any new information received/ accessed by HC-One during my employment which then triggered an immediate need to dismiss me”. This mirrored in fact what the claimant had submitted in the (original) Lewis tribunal, paragraph 81 of which says the following: “81. The claimant’s case, which was that the apparent similarity in circumstances between her dismissal by the respondent, and her subsequent dismissal by HC One, proved that the respondent had put some form of pressure on HC One to dismiss her. She could not give evidence of by whom or to whom, when or how such pressure was communicated. We find that there was no evidence whatsoever to support the allegation that there was any communication between the respondent and HC One which led HC One to dismiss the claimant.”[68]The claimant told us that her application for discovery of phone records against Sanctuary had been unsuccessful such that she had no evidence to provide. Mrs Scott said that she did not speak to anybody from Sanctuary – about the claimant or at all, either in March 2018 or thereafter. Mrs Jacob denied even knowing that the claimant had ever been employed by Sanctuary until seeing documents for these proceedings – even when told the claimant had a claim against a former employer, she did not know their identity. The claimant did not put questions to either Mrs Scott or Jacobs that they had spoken to or been in contact with Sanctuary, and she could give no evidence of the same.[69]By letter dated 21 September 2018 Mrs Scott replied to the claimant’s letter which had been sent by email on 17 September, reiterating that she was dismissed due to “performance and capability issues” on 16 August 2018. She says “you seem to feel that the reason you have been dismissed by HC One is somehow linked to a detrimental reference from a previous employer. I can assure you that this is not the case”. Finally she also reiterated that the sole ground of appeal had been the dispute about whether a meeting had taken place on 16 August 2018.[70]None of the HR advice given to either Mrs Jacob or Mrs Scott was recorded in writing; the sole piece of evidence about HR advice before us was the comments HR made to the claimant’s email of 22 August 2018 which included asking whether there were notes of the meeting of 16 August 2018, and commenting “the sole ground of appeal seems to be the fact that TP says the meeting did not take place. I would recommend no Appeal Hearing and response in writing as discussed with LF earlier. TP has no employment right to unfair, constructive or automatically unfair dismissal. We need to confirm that we have full notes of probationary milestone / review meetings.” Law[71]The claimant’s claims are:a. Automatically unfair dismissal contrary to section 103A ERA 1996b. Detriment for making a protected disclosure contrary to section 47B ERAc. Victimisation contrary to section 27 EqA 2010d. Unlawful deductions from wages contrary to section 13 ERA 1996e. Wrongful dismissal – i.e. in breach of contract.[72]In circumstances where it is agreed that the disclosure made by the claimant to Sanctuary on 13 September 2017 was a protected disclosure – as found by the Lewis tribunal, we have not analysed the provisions as to when a disclosure of information will be protected. As Mr Stringer accepted in his written submissions, a disclosure made to a previous employer can be relied upon in proceedings against a subsequent employer (BP plc -v-Elstone and anor 2010 ICR 879, EAT).[73]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.”[74]It is well established (for example – see judgment of Court of Appeal, in the case of Abernethy -v- Mott Hay and Anderson [1974] ICR 323) that the reason is to be determined by considering the set of facts which led to the decision to dismiss.[75]As Mr Singer set out in his written submissions: “Where a Claimant lacks the requisite two years’ continuous service to claim ordinary unfair dismissal, she will acquire the burden of showing, on the balance of probabilities, that the reason for dismissal was an automatically unfair reason — Smith v Hayle Town Council 1978 ICR 996, CA (a trade union case), and Tedeschi v Hosiden Besson Ltd EAT 959/95 (automatically unfair dismissal for health and safety reasons). The EAT in Ross v Eddie Stobart Ltd EAT 0068/13 confirmed that the same approach applies in whistleblowing claims. … In Nicol v World Travel and Tourism Council and ors 2024 EAT 42, the EAT considered a decision-maker’s knowledge of a protected disclosure in the context of dismissal, holding that where a disclosure was made to one person (A) and then transmitted to the decision-maker (B), B needed to be aware of some of the detail of what the whistleblower had disclosed to A in order for the claim to succeed.”[76]Mr Stringer also drew attention to the judgment of Mummery JL in ALM Medical Services Ltd -v- Bladon 2002 ICR 1444, CA in which he held ‘[T]he alleged unfairness of aspects of [the employee’s] dismissal, which would be central to a claim for “ordinary” unfair dismissal, are of less importance in a protected disclosure case. The critical issue is not substantive or procedural unfairness, but whether all the requirements of the protected disclosure provisions have been satisfied on the evidence.’[77]Section 47B ERA provides: “(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”[78]The issue of detriment has arisen regularly in relation to claims under antidiscrimination legislation. The Court of Appeal, in Ministry of Defence -v -Jeremiah [1980] ICR 13, confirmed that it meant “putting under a disadvantage”, and, in Shamoon -v- Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, that it involved “a disadvantage of some kind”.[79]Both the claims arising from alleged protected disclosures involve consideration of the issue of causation. The claim under Section 47B relates to detriment “on the ground” of the disclosure, and the claim under Section 103A involves the “reason or principal reason” for the dismissal. With regard to claims under Section 47B, the Court of Appeal. in NHS Manchester -v- Fecitt [2012] IRLR 64, noted that causation involved something which materially influenced the treatment, and, in Section 103A claims, the Supreme Court, in the case of Royal Mail Limited -v- Jhuti [2019] UK SC 55, indicated that ordinarily Tribunals would look no further than the reasons of the decision maker, but that where the reason was hidden from the decision maker they could look behind that invention.[80]Section 27 EqA 2010 provides: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because— (a)B does a protected act, or (b)A believes that B has done, or may do, a protected act. (2)Each of the following is a protected act— (a)bringing proceedings under this Act; (b)giving evidence or information in connection with proceedings under this Act; (c)doing any other thing for the purposes of or in connection with this Act; (d)making an allegation (whether or not express) that A or another person has contravened this Act.”[81]There is no dispute in this case that the protected act relied upon by the Claimant is within section 27(1)(a) EqA. The question which is in issue is causation. In considering this the tribunal considered section 136 EqA in relation to the reversal of the burden of proof. The claimant in this case has established both a protected act, and “detriments”. This alone however will not shift the burden of proof; something more is required because the mere fact of a protected act and a detriment is not suƯicient. [Madarassy -v- Nomura International plc 2007 ICR 867, CA]. In the context of victimisation Mr Singer submitted that there would need to be some evidence from which the tribunal could infers a causal link between the protected act and the detriment. We agree that with that submission.[82]Section 13 ERA 1996 provides that if any pay period the sum received is less than that due, it will constitute an unlawful deduction from wages. In this case it is agreed that if the EDT was 22 August 2018 the claimant will be due sick pay for the period between 16th and 22nd August in the amount agreed. Conclusions Automatically unfair dismissal[83]The burden of establishing that the principal reason for dismissal was a protected disclosure is on the claimant. We have concluded that she is unable to satisfy this burden.[84]In considering this complaint we have adopted the finding of the Lewis tribunal (undisturbed by the EAT) that the communication made by the Claimant to Sanctuary Care on 13 September 2017 amounted to a protected disclosure under section 43B ERA 1996. The live issues were whether this Respondent had knowledge of that disclosure, and if so whether it was the reason, or principle reason for dismissal.[85]In relation to both knowledge and causation, the claimant has not made out her case.[86]The primary decision maker as to dismissal was Mrs Jacob; but she had “checked” this with Mrs Scott. The claimant appeared to the tribunal to be inviting us to infer that Mrs Scott could / did influence the decision of Mrs Jacob, and we accept this was the case.[87]We have found as a fact that Mrs Jacob knew nothing of the Claimant’s employment with / termination from Sanctuary until after she had made the decision to dismiss. What precisely she knew thereafter seems to have been limited to the fact of the claimant having a claim against ‘a former employer’. She did not therefore have the requisite knowledge to have been motivated by the protected disclosure / act.[88]While Mrs Scott was made aware on 6 March 2018 that the Claimant had a dispute with Sanctuary and had refused to sign a settlement agreement with them, we have not found, as a matter of fact, that Mrs Scott knew either of the protected disclosure that had been made in September 2017, nor that the Claimant had made a complaint of victimisation against Sanctuary relying on the detriment of their reference provided to HC One.[89]As to causation, even if we accepted the Claimant’s evidence as to the knowledge of Mrs Scott (that she had told Mrs Scott of the protected act and protected disclosure on 6 March 2018), it is clear that the Claimant was nevertheless still hired by her. We consider the submission of the respondent - that this fundamentally undermines the claimant’s claim that this same information then motivated Mrs Scott to dismiss her and subject her to detriments - had considerable force. The claimant when asked about this suggested that from day 1 the Respondent had no intention of retaining her, and when asked why then they had employed her at all, she answered it was because “they thought I would settle with Sanctuary”. However, this is not a complaint of being dismissed because of continuing to pursue litigation against a former employer, and in any event there was no evidence whatsoever which would support such a contention – particularly given that we reject the factual assertion that Mrs Jacob asked in July 2018 why the claimant had not signed an agreement with Sanctuary.[90]Furthermore, neither Mrs Scott nor Mrs Jacob were challenged in their evidence that they had looked for an alternative role for the claimant in the audit department as they considered she had considerable strengths in report writing and analysis. This too suggests that the Respondent was not seeking to exit the claimant from the organisation motivated by protected disclosures/acts.[91]The tribunal note that the claimant’s criticisms of the respondent of having failed to undertake probationary review meetings with her, and if it considered she was falling short of what it expected, to have set her targets which it could then review, are, in our view, well founded. Liam Jennings had just one review meeting which resulted in a written record, and that as he was about to leave his post. Even taking Mrs Jacob’s evidence at its highest, her interactions in the five weeks of managing the claimant – and accepting the Claimant’s submission that she was one of five Area Quality Directors who reported to Mrs Jacob - was fairly limited. Whilst Mrs Jacob said that she received oral feedback from home manager(s) and the Area Director, there was no evidence whatsoever of any negative feedback being put to the claimant to allow improvement. Mr Singer submitted that as a senior employee the claimant ought not to have expected such feedback – but the Respondent’s probationary policy applied to the claimant and expected meetings every other month. It did not say they should be more scant for more senior employees – and the very brief comments from the HR department about needing records of the probation “milestones / reviews” indicate that HR expected there to be more records than we have seen in this matter.[92]While the tribunal accept the evidence of Mrs Scott and Jacobs that the period of the claimant’s employment with the respondent was a very busy period, with a large number of homes having been acquired and a new role of AQDs being recruited to, this does not, particularly in an organisation of this size, exempt them from following their own policies and procedures. The Claimant said that she felt her performance review was being conducted in an employment tribunal; we understand why she felt this way in circumstances where she had never been given an opportunity in the course of her employment to address any performance concerns other than at the single meeting with Mr Jennings. Nor was this an opportunity which was being oƯered to her on 16 August 2018 as that meeting was to explain the decision to dismiss. Detriments for making a protected disclosure[93]Whilst the test as to causation diƯers in a claim for detriments, the claimant must still establish knowledge of the protected act. For the reasons set out above, she has failed to do this and therefore this claim is dismissed.[94]The tribunal would in any event not have accepted that the failure to hold a probation review meeting or “confiscating the company car” before being told of dismissal were factually made out as detriments. The claimant was invited to, and we find, started her probationary review meeting. She then left the meeting. We have found as a fact that she was told of her dismissal on 16 August 2018, before her car was collected on 21 August.[95]We would have accepted that the failure to have hearings before determining the appeal and grievance amounted to detriments. In the fairly unusual circumstances of the Claimant not having completed her probationary review meeting on 16 August, and then disputing that it had started, we accept her submission that for a company which prides itself on the value of “kindness”, not having a face to face meeting was a matter she considered to be detrimental. Particularly after her very full letter of 17 September 2018 when she highlighted the similarities of how she had been treated by Sanctuary, including not being aƯorded an appeal, it was still open to Mrs Scott to meet the claimant prior to her final determination on 24 September 2018. Whilst we do not find that these detriments were because of a protected disclosure, we do consider it to have been poor industrial practice on the part of the respondent. Victimisation[96]The protected act relied upon is the claim of victimisation against Sanctuary for the reference of 21 February 2018 that they provided to the Respondent. Whilst there was some confusion as to the precise date of this protected act, it is clear that this was an issue before the Lewis tribunal and the protected act is made out. As to the claimant’s reference in her statement to August 2018, we accept that she provided further particulars of this claim to Sanctuary in her claim against them, on 8 August 2018.[97]There is no evidence whatsoever that the Respondent knew of that provision of further information, or that there was any communication between Sanctuary and the Respondent after her recruitment process.[98]For the reasons set out above, the claimant fails in this claim.a. The failure to hold a probation review meeting and having her car removed were not detriments.b. In relation to the dismissal and failure to hold meetings, the decision makers had no knowledge of the protected act.c. There are not facts from which we could conclude that the burden of proof shifts in this matter. She has failed to show that the detrimental treatment was because of the protected act, nor were there facts from which such an inference could be drawn. Unauthorised deductions[99]We concluded that the claimant was told by Mrs Jacob on 16 August 2018 that her employment was terminating. Her eƯective date of termination was therefore 16 August 2018 and her claim for wages between then and 22 August 2018 when she received the letter confirming the same, is dismissed. Wrongful Dismissal[100]The claimant accepted that she was paid in lieu of notice, including a car allowance. This claim is therefore dismissed.[1]On 1 November 2024 I was sent the Claimant’s application for reconsideration of the Judgment of the Tribunal in this matter. That application for reconsideration had been made on 20 August 2024. I have also been sent emails from the Claimant seeking a review of the judgment in her case against Sanctuary Care Limited, case number 3304195/18 and the email from the respondent dated 9/5/24 (I am unaware whether this is 9th May 2024 or 5th September 2024), setting out the objection of Sanctuary Care Limited to the application to review the judgment of the tribunal chaired by EJ Lewis from 1-3 November 2023.[2]The Claimant seeks reconsideration on two grounds: “Point 1: Based on facts presented to the Court, I won my case in all aspects of the grounds I appealed against and was granted as set out in ground a) of the EAT order sealed on 6th September 2021. My key reasons are included in 1a-f) below. Point 2: The claim for race discrimination set out in the EAT order sealed on 6th September 2021 should not have been struck out by ET since I had already appealed successfully for it to be submitted. If the respondent had not delayed with the bundle which should have been filed in 2023, I would have had legal representation to support me on this including if a preliminary hearing had been held. My other reasons are included in 2a-b) below.”[3]In support of her first point the Claimant says that the Respondent’s witnesses gave oral evidence which differed from their written statements, and that the closing statement form counsel for the Respondent “relied heavily on what had happened at Sanctuary Care”. Having sought unsuccessfully to have her cases against Sanctuary Care and HCOne Ltd heard together, she objected to having the judgment in the Sanctuary case before the tribunal hearing her case against HC-One Ltd. She raised the issue of the inclusion in the cast list of the person from Sanctuary Care who had issued the dismissal reference to HC One as “evidence of the continued detriment as it impacted on my case with the two jointly involved in the case…”. The claimant also says that closing submissions from counsel for the Respondent amounted to “further evidence” which she had not had the opportunity to challenge.[4]In relation to her second basis for seeking reconsideration, I understand this to relate to the decision not to permit the claimant to amend her claim on the first day of the hearing to include a complaint of direct race discrimination. The claimant also takes issue with the delays on the part of the Respondent in providing her with a bundle. Law[5]Rule 70 of Schedule 1 to the ET (Constitution and Rules of Procedure) Regulations 2013 provides that a tribunal may, on its own initiative or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. Rule 72 sets out the procedure. If there is no reasonable prospect of the original decision being varied or revoked, the application shall be reviewed. Otherwise the tribunal will seek a response from any other parties and seek views on whether the application can be determined without a hearing or not. Conclusion[6]I have reached the conclusion that there is no reasonable prospect of the original decision in this matter being varied or revoked.[7]In relation to the Claimant’s first ground for seeking reconsideration, I have found it difficult to understand what the claimant’s summary (set out in paragraph 2 above) refers to. However, in her “key reasons”, she makes a number of points. None of them give rise to arguments with any reasonable prospect of showing that the interests of justice require the original decision to be varied or revoked.[8]It is clear that the Claimant’s period of employment with Sanctuary Care and her leaving that employment and subsequently pursuing a case against them in the ET were important to the factual background of her case against HC-One Ltd. It was not in dispute in the case against HC-One that they had sought a reference from Sanctuary, and received one. Nor was it in dispute that on receipt of this reference the claimant had a meeting with Mrs Scott – after which the offer of employment from HC-One was confirmed. These matters are all set out fully in the judgment of the tribunal. Where matters from the Sanctuary case were taken into account is made clear in the judgment, and indeed the parties submissions were invited during the hearing on the point.[9]Importantly - the finding of fact that the claimant had done a protected act, made in the judgment dealing with the claim against Sanctuary Care, was adopted by both parties in this case against HC-One. It was a necessary ingredient of considering the claimant’s claim of victimisation. If what the claimant is effectively complaining of is the ET seeing the judgment in the Sanctuary case, this is not a matter which has any reasonable prospect of showing why this decision should be varied or revoked.[10]The Claimant states that she raised a complaint during the Hearing about the cast list produced by HC-One including the name of an employee of Sanctuary Care, and that the cast list was therefore marked as being form the Respondent rather than an agreed document. This inclusion of a Sanctuary Care employee in the cast list does not, as the claimant appears to think, evidence any kind of collaboration between Sanctuary Care and HC-One. The purpose of the cast list was solely to set out the identities of people from whom, or about whom the tribunal was to hear evidence. It was never in dispute that a reference had been sent by Sanctuary care to HC-One – and it was the person who provided this reference who was cited in the cast list. I note that the Claimant’s correspondence to the tribunal seeking a review of the Lewis judgment in the case against Sanctuary care dated 1 September 2024 the claimant asserts that the representatives of Sanctuary Care admitted in an email dated 19 August 2024 to the EAT, that they had contact with HC-One. That email of 19 August does not however contain any such admission. The representatives of Sanctuary care set out their understanding of points being made by the Claimant, not an admission. In any event, none of these matters call are such that a variation or revocation of the decision in this case has any reasonable prospects.[11]As to the second point, the reason for refusing the application to amend is set out in the decision. No basis for a review of this is identified.[12]While the late provision of the bundle from the Respondent was far from ideal, the claimant’s request to have the whole of the first day of the listed hearing to ensure she was familiar with it was acceded to. Again, neither this, nor the timing of the written closing submissions from the Respondent (which reviewed evidence adduced and did not give rise to ‘new evidence’ being considered by the tribunal) were such as to give rise to any reasonable prospect that the judgment should be varied or revoked. EJ Rebecca Tuck KC 15 November 2024. For Employment Tribunal N Gotecha